Justice: Denied -- The Magazine for the Wrongly Convicted




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{Editor's note: This is an unusual story for us to publish, but especially fascinating, as we're sure you'll agree. Not everyone would have the time, money or inclination to pursue getting to know his or her namesake across the ocean, and that's only one element that makes this story unique.}

Robert Waterhouse by Robert Waterhouse

How a chance encounter led to Death Row

The story begins at a sixth-floor apartment in Nice, France, sometime during December 2000. A British-born journalist, now living in Nice, is playing on his computer with Google, the web search engine his daughter, who works for a US bank in London, has told him about. Why not look up his own name?

Yes, there are one or two of his articles on the web, but that isn't the object of the exercise. Robert Waterhouses pop up in history -- a rabble-leader in the industrial North of England and a member of the English militia in Ireland, for instance. What about today?

The trail leads to the United States. A theater director in Buffalo, New York. Fine. I was once a drama critic so there might be something in common. A New York parks authority worker commended for helping prevent a woman from drowning herself in a city reservoir. Excellent, but not much to add. A reference to the Florida Department of Corrections web site. I go straight there.

Robert Waterhouse 075376 has been on Florida's Death Row since September 1980, convicted of the first-degree murder of 29-year-old Deborah Kammerer in St. Petersburg. He was within days of being electrocuted in March 1985 when Stephen Bright and Clive Stafford Smith picked up his case from the Southern Prisoners Defense League in Atlanta. Smith is the British-born anti Death Penalty lawyer who today runs the Louisiana Crisis Assistance Center in New Orleans.

Their involvement led to a stay of execution, an evidentiary hearing and a penalty phase retrial in 1990, ordered because non-statutory mitigation evidence had not been presented in 1980. At the retrial Robert Waterhouse was again sentenced to death. Subsequent appeals have now reached the stage where his attorney, Robert A. Norgard, filed an amended state habeas corpus petition in mid April 2002. This could be my namesake's last chance before moving into the federal system.

My friendship with Robert started formally in early February 2001 when I interviewed him at Union Correctional Institution, Raiford. My presence there as a journalist ensured that we met with a screen between us. He was in cuffs and leg-irons. I would get to know him later as a friend in the more relaxed setting of the contact-meeting room nearby, where up to 20 inmates at a time receive approved visitors. But the press interview emphasized our wholly different positions, something that spurs me when I feel the need to be reminded.

I did eventually publish an article in the weekend edition of the London Financial Times. By that time I had met Robert on three further occasions. I spent four weeks last summer investigating his case in St. Petersburg while visiting at weekends, preceded by a few days on Long Island, New York, where Robert was born and grew up, and where he pleaded guilty to a second-degree murder charge in 1966.

He was then only 19. He spent the next nine years or so in Auburn State Prison before being released on life parole, drifting from Long Island to Louisiana and eventually, in 1978, to Florida where he went to live with his aunt and uncle, the people who had raised him from the age of six months and had retired to St. Petersburg.

Robert has always insisted on his innocence of the St. Petersburg murder. A few months back, he wrote his account of the events of January 2-3 1980, the night Deborah Kammerer was murdered, for Justice Denied Magazine. I have questioned him closely on this account. He has stuck to his story, and I am not in a position to say I don't believe him. So, in writing about his case, I intend to concentrate not on guilt or innocence but on the wrongs I believe he suffered before and after his arrest on January 9 1980. These alone, I suggest, make up a prima facie example of justice denied.

Let's start by setting the scene. St. Petersburg, or St. Pete, is a low-density conurbation of some 238,000 souls on the west side of Tampa Bay. Its downtown area faces the bay with a few skyscrapers and a famous pier. The town straddles an isthmus between the bay and the Gulf of Mexico. On the gulf side, a string of resorts beside golden sands with names like Treasure Island and Madeira Beach. It's a sub-tropical retirement haven, which in 1980 also attracted an easy-going, pot-smoking set of drifters. Deborah Kammerer and Robert Waterhouse were among them.

They knew each other. They had smoked dope together and had made love three or four times. Debbie (as everyone called her) was a divorcée whose ex-husband and children were back in Indiana. She was a slight (90 pounds) fair-haired woman. Robert, on the other hand was, at 6ft 2in and 220 pounds, dark-haired and bearded, a strong, flashy 33-year-old determined to enjoy himself after spending most of his twenties behind bars. He had a string of drinking companions and women admirers.

One of the places they met was the ABC Lounge on 4th Avenue North and 35th Street North. It was from here that Deborah Kammerer left in the early hours of January 3, probably with the person who murdered her. She was discovered head down in the shallow muddy water of Tampa Bay at Lansing Park beside Beach Drive South East at 19th Avenue SE the next morning by a resident walking his dog. She was naked, had been hit viciously around the head many times, raped and otherwise violated. The autopsy concluded she had been alive when dumped in the water.

Robert, who had also been in the lounge the previous evening, contends that he did not speak to Debbie on that occasion. She was at the main bar with friends; he was in a side bar meeting someone who was to sell him some pot. He says he left early to do the deal, and only returned to drop off his contact. But a barmaid claimed she had seen Robert and Debbie sitting, drinking and leaving together (this was not corroborated by Debbie's friends). However, that evidence and blood traces in his car which matched her blood type was enough, in a circumstantial case, to convict him.

Just three days after the murder, before Deborah Kammerer herself had been identified, Robert was put under police surveillance following an anonymous phone call. The caller identified his car tag, indicating that all the evidence needed was in the vehicle.

Two days later Robert was pulled over by police cruisers as he left another St Petersburg club. His driver's license was taken from him. He was told he could only get it back by accompanying police to the police station. There, he was questioned but not arrested. He was free to leave. However, his car must stay. A search warrant issued the next morning for the car led to a warrant for his arrest on January 9. The police, and the district attorney, were sure they had their man.

So the police hit the jackpot when, prompted by the mystery caller, they found that the registered owner of the 1973 Plymouth Satellite was none other than Robert Waterhouse, on life parole for a previous murder. Or was it the other way round? Did they concoct the call to match the profile? The caller was alleged to be a middle-aged male with a New York or New England accent. Robert's uncle Chet Foster and "family friend" Ken Norwood both fitted the bill, but both denied involvement.

In pre-trial suppression hearings of August 1980, Robert's court-appointed attorneys, Paul Scherer and John Thor White, moved to strike evidence found in the car as inadmissible because they claimed Robert had been unlawfully detained when made to take his vehicle to the police station. They also moved to strike damning statements taken in a police station interview of January 10 not in the presence of a defense attorney, even though the Pinellas County Public Defender had been appointed to Robert's case.

Judge Patterson allowed the automobile evidence (without which the prosecution case would have crumbled) but ruled against the verbal statements. However, after further representation by prosecutors Bob Merkle and Jack Helinger, Judge McGarry reversed Patterson's opinion and allowed everything to stand.

This was the first, but by no means the last, example of prosecution bullying. The trial transcript illustrates many instances of Merkle, in particular, hustling trial judge Robert E. Beach into accepting his view of how things should be conducted.

The trial was a big event in the St. Petersburg of 1980. According to reports the courtroom was packed. Judge Beach, whose background was in commercial law, had seen two decisions recently overturned by the Florida Supreme Court. The DA's department was known for its aggressiveness. Bob "Mad Dog" Merkle was at the start of a career which took him to be Assistant US Attorney in Tampa and one-time Republican candidate for the US Senate before opting for lucrative private practice. He needed the victory he quickly gained.

Among photographic "evidence" allowed as a backdrop to the trial were pictures of Ms Kammerer not as she was discovered in Tampa Bay but after she had been literally scalped during autopsy. Jurors were illegally offered a handbook of advice on how to conduct themselves. So-called expert witnesses put on the stand by the county were not cross-examined in an adversarial manner. The defense brought only one witness compared with the prosecution's 30 or so. The prosecution had delayed until the very last moment to disclose exculpatory witnesses to the defense, contravening Brady rights.

Robert was in fact never asked by his defense counsel to provide a list of witnesses. It wasn't until the trial opened that the defendant realized that his own car would be identified as the crime scene, with Merkle borrowing from Shakespeare's Macbeth to invoke blood and guilt.

The prosecution was not prepared to leave things there. It promulgated a story at the trial that depended on the word of a convicted felon, Kenneth Young. While in Pinellas County jail awaiting trial on another count during the early summer of 1980, Young shared a 20-man cell with Robert Waterhouse. He claimed he had witnessed Robert threatening a young inmate with an improvised knife to let him have anal sex or else he would do much the same to him as he had done to Deborah Kammerer (she had been anally raped and allegedly abused with a Coke bottle).

Robert's attorneys collected sworn depositions from five other inmates of the same cell, all contradicting this story. For a reason only known to the defense the inmates were never put on the stand. Young's perjured account (promised, it seems, in return for a plea deal) was deemed admissible, and played an important role in Robert's second conviction at a penalty phase retrial in 1990.

In the event, Scherer and White produced no alibis or alternative theories about Robert's activities on the night in question. They merely attempted to rebut the prosecution version, and were never taken seriously. The press had decided seven months earlier that the killer was Robert. The jury quickly affirmed his guilt.

When, at the sentencing stage, it was "revealed" that he had been previously convicted of murder (a fact which had of course been spread all over the newspapers for months) the jury voted for death and Judge Beach obliged with the death sentence.

Nobody spoke of mitigation. Robert's position was, and remains, that he didn't commit the murder so he has no interest in mitigation. But a 1985 post-conviction relief appeal by Bright and Smith uncovered classic mitigating issues like alcoholism, a troubled family background and a serious automobile accident as a teenager. The Florida Supreme Court ordered the retrial in 1988 because Judge Beach had not considered non-statutory mitigating circumstances at the sentencing stage of the first trial.

History repeated itself. The 1990 retrial was a fiasco. For some reason Bright and Smith were unable to represent Robert in court. Instead, Smith chose a Pinellas attorney, Larry Hoffman. Hoffman and Robert had a poor-to-nonexistent relationship from the start. As the trial approached it became obvious that Robert had no faith in his attorney. He tried to fire him, but Judge Beach insisted Hoffman continue.

At the trial Hoffman declined to make a closing argument for his client, saying he had not been allowed to argue mitigation so could not ethically carry on. Robert eventually spoke from the dock himself, with disastrous consequences. He was again found guilty of first-degree murder and again sentenced to death by Judge Beach.

Bright and Smith handled the direct appeal against the second sentence, and subsequent appeals as far as a failed certiorari to the US Supreme Court in 1992. In August of that year Clive Stafford Smith wrote to Robert, who had by then been on death row for almost 12 years: "We will, of course, plough on, and get the whole case (conviction included) reversed in the long run. One just has to take the good with the bad, and keep on fighting the good fight."

As far as Robert was concerned, this proved to be Smith's last attempt to fight the good fight for him. Early the next year, he learned he was now in the hands of Florida's Capital Collateral Counsel, the state body created to represent capital cases. He was with CCRC through a variety of appeals, all of them denied, until securing the services of Norgard at the end of 2001.

Robert Waterhouse has not been easiest of clients to represent, but then he has not so far had the best of luck with attorneys. Initially taken on by the Pinellas County Public Defender's department, he was passed over to a court-appointed lawyer after the Assistant PD, Bob Dillinger, excused himself for "ethical" reasons. Dillinger, today the elected Pinellas County PD, has an excellent record in defending first-degree murder cases. He will not, of course, disclose those ethical reasons, though in an interview with me Dillinger denied they involved conflict of interest with other PD clients.

A variety of attorneys came and went during the months before the trial, which was postponed until September 1980. Robert ended up with Scherer and White as court-appointed lawyers. Their unwillingness or inability to research his background and investigate the case is a matter of record. Their attitude was characterized several years later when Bright and Smith were moving at the eleventh hour to achieve a stay on the Death Warrant signed by Governor (now Senator) Bob Graham.

In an affidavit signed March 13 1985 Scherer regretted the loss of trial papers, which happened, he wrote, either when White moved office or in a car burglary. Then he excused himself, saying he had to be in California the following week on another case and could not possibly give evidence at any St Petersburg hearing. This was in spite of a motion for retrial filed by White back in September 1980 listing 28 reasons that the original verdict should not stand. Judge Beach had dismissed the motion.

Robert's first direct appeal by Philip Padovano, now a district court judge in Tallahassee, is at the center of the present state habeas writ amendment. The involvement of Bright, Smith and then Hoffman has already been mentioned, as has the period with CCRC. His hopes are now pinned on Norgard's submission.

As for Judge Beach, the man who twice sentenced Robert to death -- as well as denying him post-conviction relief in 1986 -- his prejudice was displayed early on. Speaking before the Florida Parole and Probation Commission as part of Robert's Post Sentence Investigation Report on May 28 1981, Judge Beach is quoted as saying "the subject is a dangerous and sick man and that many other women have probably suffered because of him."

Robert was to get his chance to bandy words with the judge -- not that it did him any good. The following record of an ex parte hearing in advance of the 1990 resentencing trial provides a rare moment of comedy in 22 years of tragedy.

The Court (Beach) is querying the Defendant (Waterhouse) as to why he wants attorney Hoffman off his case.

THE COURT: You're jerking the chain of this system.

THE DEFENDANT: I think this system is jerking my chain.

THE COURT: You have been convicted of one of the most brutal murders this county has ever witnessed, and you have had a fair trial, and you had good representation and you've had appeal after appeal. And every lawyer that's been on the case -- how many lawyers have represented you in the last nine years of your case?

THE DEFENDANT: I have no idea.

THE COURT: You can't even remember.

THE DEFENDANT: I can remember.

THE COURT: Every one of them has asked to get off your case because of the way in which you treated them. That's baloney when you say, come in and say -

THE DEFENDANT: How have they treated me?

THE COURT: How have they treated you? Kept you out of the electric chair for nine years. That's how they treated you.

THE DEFENDANT: Small consolation.

Later CCRC appeals pointed out that Hoffman should have challenged Beach's legitimacy to conduct the resentencing trial. But if Robert Waterhouse's case were ever to come back for retrial in Pinellas County the same Judge Beach would be in line to be brought out of semi-retirement for the occasion.

To an English journalist whose recent background is in business magazines my chance association with Robert Waterhouse, with his case and through it with the Florida and US legal systems has been a revelation.

More importantly, my friendship with Robert, with his wife Frances and with other Death Row families -- indeed my opportunity to meet briefly other inmates -- is an extraordinary ongoing experience. To be one amongst perhaps 50 people at Saturday visiting time talking, laughing and eating, putting the bravest of faces on the worst of circumstances, is to know that human nature does indeed triumph in adversity.

© Justice Denied

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