Friday, February 10, 2012

I Oppose the Impending Execution of Robert Waterhouse

Robert Waterhouse sits on Florida's death row awaiting execution by the people of Florida of the 15th of this month. His eleventh hour appeals have failed. I suspect he will not survive the day.

I present his case by citing from four adverse appellate decisions, one news article, one magazine article, and one editorial. I conclude with my brief analysis. As I usually do in such cases, I have modified the formatting of the appellate decisions to make them easier to read. The highlighting is mine.

Be forewarned that this is a lengthy post. I suspect, however, you will be compelled to continue reading to the end.

Appellant Robert Brian Waterhouse was tried before a jury and found guilty of the murder of Deborah Kammerer, which occurred in St. Petersburg on the night of January 2, 1980. A separate sentencing hearing was held, after which the jury recommended that appellant be sentenced to death. ...

On the morning of January 3, 1980, the St. Petersburg police responded to the call of a citizen who had discovered the dead body of a woman lying face down in the mud flats at low tide on the shore of Tampa Bay. An examination of the body revealed severe lacerations on the head and bruises around the throat. Examination of the body also revealed -- and this fact is recited not for its sensationalism but because it became relevant in the course of the police investigation -- that a blood-soaked tampon had been stuffed in the victim's mouth. The victim's wounds were such that they were probably made with a hard instrument such as a steel tire changing tool. Examination of the body also revealed lacerations of the rectum. The cause of death was determined to have been drowning, and there was evidence to indicate that the body had been dragged from a grassy area on the shore into the water at high tide. The body when discovered was completely unclothed. Several items of clothing were gathered from along the shore at the scene.

The body showed evidence of thirty lacerations and thirty-six bruises. Hemorrhaging indicated the victim was alive, and defense wounds indicated she was conscious, at the time these lacerations and bruises were inflicted. Acid phosphotase was found in the victim's rectum in sufficient amount to strongly indicate the presence of semen there. Also, the lacerations in this area indicated that the victim had been battered by the insertion of a large object. The medical examiner was also able to determine that at the time of the murder the victim was having her menstrual period.

After several days of investigation the police were unable to identify the victim, so they announced the situation to the public. They then received an anonymous telephone call simply informing them of Waterhouse's automobile tag number and advising them to investigate it.

The police also learned the identity of the victim from two of her neighbors. These two acquaintances, Yohan Wenz and Carol Byers, testified at trial that they went to the ABC lounge with the victim on Wednesday night, January 2, 1980. They testified that they later left the lounge and that Ms. Kammerer remained there at that time. Kyoe Ginn, who was working there as a bartender that night, testified that the victim came into the bar with a man and a woman, that they later left, that Ms. Kammerer then began talking with Waterhouse (who was known to the witness) and that at about 1:00 a.m. Waterhouse and Kammerer left the bar together.

On the evening of January 7, 1980, police officers asked Waterhouse to voluntarily go with them to police headquarters for an interview. At this time he said that he did not know any girl named Debbie and that he went to the ABC lounge on January 2 but did not leave with a woman. After this interview Waterhouse was allowed to leave but his car was impounded for searching pursuant to warrant. The automobile was searched on January 8 and Waterhouse was arrested on January 9.

Detectives Murry and Hitchcox arrested Waterhouse. In the car on the way to the police station, after advising Waterhouse of his rights, Hitchcox asked him, "We were right the other night, weren't we, when we talked to you about being involved in this case?" Waterhouse responded simply, "Might." Shown a picture of Deborah Kammerer, Waterhouse this time admitted that he did in fact know her.

On the afternoon of January 9, the detectives again interviewed Waterhouse. Detective Murry testified concerning this interview. She said that Waterhouse became emotionally upset and said repeatedly that his life was over, that he was going to the electric chair. He said that he wanted to talk to his interviewers as people and not as police officers. He then said that he had some personal problems with alcohol, sex, and violence.

The two detectives interrogated Waterhouse again on January 10. Again Waterhouse said he wanted to talk to them as people rather than as police officers. Detective Murry testified that Waterhouse again indicated that he experienced a problem involving sexual activity. He said that when he drinks a lot, it is like something snaps and he then finds himself doing things that he knows are terrible and bad, and that he cannot control his behavior on such occasions. Appellant also told the officers that when he wanted to engage in sexual activity with a woman but learned that she was having her menstrual period, he would become frustrated and angry and that this is what had happened the previous Wednesday night. He also said that he had had a lot to drink on Wednesday night.

Inspection of the interior of Waterhouse's car revealed the presence of visible blood stains, and a luminol test revealed that a large quantity of blood had been in the car but had been wiped up. Analysis of the blood in the car and comparison with known blood samples of appellant and the victim revealed that the blood in Waterhouse's car could have come from the victim but was not Waterhouse's blood.

A forensic blood analyst testified that it is possible through analysis of blood stains on certain surfaces to make estimates concerning the direction and velocity of motion of the blood making the stains. This witness concluded from her analysis that the blood in Waterhouse's car was deposited in the course of a violent attack.

A forensic hair analyst testified that hairs found in Waterhouse's car were consistent in their characteristics with known hair samples from the victim.

A forensic fiber analyst testified that fibers found in the debris adhering to the victim's coat were similar to fibers from the fabric of the seat cover in Waterhouse's car. Also, fibers were found in the car that had the same characteristics as fibers from the victim's coat and pants.

Waterhouse was employed as a plaster and drywall worker. His foreman testified at trial that on the morning of January 3, Waterhouse arrived at work asking for the day off. He appeared to have a hangover and said he was feeling rough. The witness said that at this time Waterhouse had scratches on his face. The witness also said that Waterhouse had told him that he liked anal intercourse and liked being with women who allowed themselves to be hit and slapped. ...

Waterhouse also contends that the trial court erred in allowing the testimony of a cellmate who described an incident after Waterhouse's arrest in which Waterhouse either committed sexual battery upon another inmate or attempted to do so. Again Waterhouse argues that the testimony was not relevant to any issue of material fact. We find, however, that the testimony was relevant because it included, and explained the context of, an incriminating admission made by Waterhouse. The witness testified that he did not actually see what transpired between Waterhouse and the other prisoner because the witness and the remaining prisoners were ordered from the room by Waterhouse, who had armed himself with a sharpened spoon. However, the witness said he saw Waterhouse a short time afterward and that Waterhouse, who appeared angry and disheveled, said, "I wonder how he'd like a Coke bottle up his ass like I gave her." The relevance of this admission lies in its connection to the medical examiner's testimony that the victim's rectal lacerations were consistent with the insertion of an object such as a Coke bottle. The statement was therefore relevant and the testimony was admissible to provide the context in which the statement was made.

Waterhouse alleges that the prosecution violated the [evidence disclosure] requirements of Brady v. Maryland by failing to disclose the availability of two possibly exculpatory witnesses until the eve of trial, as well as failing to disclose information which would impeach the credibility of one of the state's chief witnesses against Waterhouse. In the first set of circumstances, the prosecution had in its possession the names of two witnesses who placed the victim, leaving a bar on the night of the attack, with another man who had previously been accused of rape. [!!!] The prosecutor was aware of the availability of these two witnesses, but claims not to have known the information they possessed was exculpatory to Waterhouse. [Hahahahaha. Good one.] He states that when he did become aware of the nature of this evidence, he immediately disclosed it to Waterhouse.

Waterhouse's second allegation of Brady violations states that the prosecutor was aware of, and did not disclose, information and reports which would have seriously damaged the credibility of one of the state's leading witnesses, Kenneth Young. Young testified that, while a cellmate of Waterhouse, he had witnessed Waterhouse attempt to sexually assault another prisoner. He also testified that, after the assault, Waterhouse confessed to Young the details of the Kammerer murder. What the prosecutor allegedly failed to disclose were police reports that Young operated an extortion business while in prison and that Young asked for, and received, favorable treatment in return for testifying against Waterhouse. The state claims that, although the prosecutor did not disclose the police reports to Waterhouse, Waterhouse had already gained possession of the impeaching evidence through other means, and therefore was not prejudiced by the nondisclosure of the report. ...

Waterhouse alleges that his trial counsel was ineffective for failing to investigate to any significant extent the large quantity of expert testimony and technical evidence presented against him. He claims that had counsel effectively done his job, he would have discovered that much of this evidence would have been subject to extensive impeachment. Stated differently, Waterhouse claims that reasonable counsel would have discovered the obvious, and less than obvious defects in the expert testimony and scientific evidence. ...

We believe that counsel's inability to successfully rebut the state's scientific evidence was due more to the quality of that evidence rather that any failure to adequately prepare. We are not convinced, as Waterhouse would have this Court believe, that this technical evidence is so defective that any amount of trial preparation would easily discredit that testimony. Waterhouse is not entitled to perfect or error-free counsel, only to reasonably effective counsel. It is clear from the record that trial counsel made a significant effort to impeach the expert testimony. His inability to do so successfully does not render him ineffective. We find no merit in any of Waterhouse's allegations of guilt-phase ineffective assistance of counsel.

[Note: Capital murder trials are composed of two separate portions (a guilt phase and a penalty phase) requiring two separate jury verdicts. This portion of the appeal deals with a claim that Waterhouse had been denied counsel during the closing argument of a penalty phase portion of a trial. The majority of the Florida Supreme Court disagreed with Waterhouse. Justice Kogan and one other justice dissented from the majority opinion.]

KOGAN, Justice, concurring in part, dissenting in part.

I find the following portions of the record dispositive of the present appeal:
WATERHOUSE: I would like Mr. Hoffman to [make the closing argument]; he's more articulate than myself. We seem to be at odds. 
THE COURT [to Waterhouse's attorney]: He says he wants you to do it. Are you refusing? 
HOFFMAN: Yes. Aside from for the record, I think that's what I have to do. What he wants me to do, I feel might be totally unethical, to go into the guilt phase issue. And he refused to put on anything in mitigation. Therefore, I don't know of -- I don't have anything in mitigation to talk about. And I can get up there and speak about things unethical and this happened before he told me what to do. And I have gone on for what he told me to do, and we may have to do this again, but we may not. 
THE COURT: Well, this judge won't. All right, then, he proceeds on his own.
In the same exchange, the trial court asked defense counsel Hoffman if he was prepared to make the closing argument in the event this should become necessary. Defense counsel responded in the negative.
HOFFMAN: Judge, I think I would take the posture that even if he would ask me to do it now, based on his previous instructions, that I couldn't do it. And now we're riding the same horse. He told me not to do things. And I can't jump, and I would not attempt; I would rather go with no attempt.
However, the prosecutor was troubled by this exchange and asked that further inquiry be made before the jury was brought back into the courtroom. At this point, Waterhouse exhibited considerable confusion regarding the options before him. He continued to state that he wanted the jury to be told of his claim of innocence, but also informed the court that he did not fully understand the law. Waterhouse specifically told the trial court that, if Hoffman would not make the closing argument, Waterhouse needed time both to consult with counsel and prepare to make the argument himself.

The following exchange occurred:
THE COURT: Well, I'm going to ask this question one last time. If I don't get an answer, you're proceeding on your own, Mr. Waterhouse. Do you want Mr. Hoffman to make the closing statement for you within the confines of the recommendation of either death or life imprisonment or not, and not make an argument on your guilt or innocence of the homicide; yes or no? 
WATERHOUSE: Your Honor, the problem is -- see, I am not an attorney, I do not know the law fully, what you're talking about. That's why I need to get together -- 
THE COURT: Yes or no? 
WATERHOUSE: -- with Mr. Hoffman in order so we could prepare for this, so he could tell me that this is admissible and this is not. We haven't got together on it. 
THE COURT: Yes or no? 
MR. WATERHOUSE: No. 
THE COURT: Bring in the jury.
Based on the foregoing, I cannot agree with the majority's conclusion that "Hoffman did not refuse to make closing argument." The records reflects the opposite. Because a defendant cannot be denied counsel -- even a confused and equivocating defendant like Waterhouse -- I believe the record compels a finding that the Sixth Amendment of the United States Constitution and article I, section 16 of the Florida Constitution have been violated here.

In particular I cannot ignore the portions of the exchange emphasized above, which clearly show that the trial court refused to give Waterhouse even a rudimentary opportunity to prepare to make the closing argument himself. The trial court would not even permit Waterhouse the opportunity to consult with counsel as to what argument he might make on his own. This occurred despite Waterhouse's express request for time to consult with Hoffman. Thus, the trial court clearly was endorsing Hoffman's refusal to make argument, was forcing Waterhouse to serve as his own counsel, and then simultaneously deprived Waterhouse of any opportunity whatsoever to prepare in a meaningful way.

This was plain error. [Plain error cannot be deemed harmless by an appellate court. Plain error demands a new trial.] The right to counsel is one of the most fundamental of rights granted to a person accused of crimes. [Cites both the U.S. and the Florida constitutions.] Likewise, due process requires that a defendant not be deprived of a reasonable and meaningful opportunity to prepare for court, even when acting pro se. [Pro se means the defendant is representing himself.] The trial court below, the defense counsel, and now this Court have denied Waterhouse his rights. ...

Like the majority, I have no doubt that Waterhouse exhibited a lack of cooperation in this case. However, the trial court went too far in penalizing Waterhouse by denying him his right to counsel prior to the closing arguments; and defense counsel clearly exacerbated this error by announcing he was refusing to make argument for his client and was not prepared to make any sort of closing argument. No matter how contumacious a defendant may be, he may not be denied the right to counsel and counsel may not refuse to provide representation.

Moreover, I cannot give credence to Hoffman's assertions that his actions were so constrained by Waterhouse that he was unable to develop a closing argument. The Florida Rules of Professional Conduct give considerable latitude to defense counsel to control the technical and legal tactical issues of the case. Hoffman could have exercised this prerogative had he so chosen, thus developing some sort of closing argument on behalf of his client. The very fact that Hoffman sat mute while Waterhouse rambled through an unskilled and confused closing argument could be considered a damning indictment in the eyes of jurors; and for this reason alone, I believe Hoffman did not meet his obligations to his client and assisted in depriving his client of the right to counsel and due process.

In my five years on this Court, I have read countless records in which defense counsel had far less to argue than did Hoffman, yet counsel still developed a moving and legally sound closing statement. In many instances, such attorneys have persuaded more than a few jurors to vote for a recommendation of life. I see no reason why Hoffman could not have done the same when his client asked him in open court to make the closing argument. For example, Hoffman could have argued against the existence of all or some of the aggravating factors, two of which this Court today finds inappropriate. The failure even to notice the inapplicability of these two aggravating factors, much less argue against them to judge and jury, reveals Hoffman's claims in court as an unacceptable excuse.

Waterhouse now alleges that trial counsel failed to locate the following witnesses: (1) David Van Buren, (2) Randy Winstead, (3) a woman whom he only knew by first name, and (4) a man who worked with the defendant. Despite Waterhouse's claim to the contrary, it is abundantly clear that Waterhouse sought these witnesses in an effort to further his relentless quest to relitigate guilt issues. Waterhouse specifically asserts that David Van Buren and Randy Winstead would have testified that on two separate and unrelated occasions they entered the defendant's vehicle while bleeding due to cuts and being involved in fights, thereby providing an unincriminating reason for the blood that was found in Waterhouse's vehicle. Evidence that the blood found in the defendant's car came from another source is clearly a matter relating to the defendant's guilt. Moreover, David Van Buren was actually presented as a witness for the State, and was cross-examined by defense counsel regarding the cut on his leg which caused him to bleed inside the defendant's car. Therefore, as the claim pertains to Van Buren, it is clearly refuted by the record. As to the other witnesses, while Waterhouse does not specifically identify the woman referred to or what evidence she would have provided, he does allege that a man who worked with him would have provided him with an alibi. Clearly, these witnesses would have all testified with regard to guilt phase issues which were not subject to consideration during the proceedings directed only to penalty. ...

During the last penalty phase below, State witness Young provided damaging testimony relating to an incident which occurred while he and Waterhouse were both in the Pinellas County Jail. The record as to this incident indicates that while harassing a young man who had just been brought into the jail, Waterhouse pulled out a make-shift knife and began threatening the young man with the weapon. Appellant then ordered everyone out of the cell block, and after repeated pleas for help from the young man, Waterhouse eventually left him alone. As he was walking out of the cell block Waterhouse mumbled, "I wonder how he'd like a Coke bottle up his ass like I gave her." ...

During the cross-examination of Young in the penalty phase proceedings, the following exchange occurred between defense counsel and Young:
[Defense Counsel] HOFFMAN: Okay. At the time you were talking about around the 13th of July, 1980, you were in Pinellas County jail? 
[State Snitch] YOUNG: Yes, sir, I was. 
HOFFMAN: At that time had you been sentenced to all your charges? 
YOUNG: No, sir, I hadn't. 
HOFFMAN: What? 
YOUNG: I was awaiting sentencing on attempted escape and contraband in the county jail. 
HOFFMAN: Felony charges? 
YOUNG: Yes, sir. 
HOFFMAN: Okay, I didn't write it down. How many times have you been convicted of a felony? 
YOUNG: All five of them were in a six month period, all in that same time. 
HOFFMAN: So, the answer is five times convicted felon? 
YOUNG: Yes, sir. ...
HOFFMAN: Isn't it true that at the time that you relayed this story about what Mr. Waterhouse is alleged to have said, you were working on a plea bargain, trying to do something with these cases you were not sentenced on? 
YOUNG: At the time that I told the investigators, no, sir. 
HOFFMAN: You didn't have an attorney working on a plea bargain for you? 
YOUNG: When I told them, no, sir. Right after that the attorney started working with it. 
HOFFMAN: So, until you told the State, then he didn't have anything to go to the State with for a plea bargain, is that what you mean? 
YOUNG: No, sir. 
HOFFMAN: I'm sorry. You said he didn't go to the State to try to work a plea bargain until after you told this story. 
YOUNG: That's right, sir. After I told the story, the Court said that I should have an attorney and the Court appointed me an attorney. ... 
HOFFMAN: And what you're saying is that until you told this story, there wasn't anything to be used to plea bargain for you. There was nobody around to say, hey, I got this great client, I need a plea bargain for him? 
YOUNG: No, sir. 
HOFFMAN: After you had told the story about Mr. Waterhouse, then they had something they could use? 
YOUNG: Yes, sir. 
HOFFMAN: Okay. You got adjudicated on five different felonies, convicted as a felon on five, right? 
YOUNG: Yes, sir. 
HOFFMAN: What was your ultimate punishment? 
YOUNG: Two and a half years. 
HOFFMAN: Of what? 
YOUNG: Of incarceration in the state penal system. ... 
HOFFMAN: Isn't it true that your case resolution on these five felonies was postponed until after you testified? 
HOFFMAN: Yes, sir. I believe two, the last two were.
As is evident from this exchange, defense counsel sought to impeach Young's credibility by establishing that Young had provided favorable information to the State, that immediately after providing such information Young's attorney began to work on the terms of a plea bargain, and that resolution of Young's pending charges was postponed until after he testified at Waterhouse's trial. As such, Waterhouse's claim that defense counsel failed to diminish Young's credibility by confronting him with information relating to a possible deal between the State and Young is conclusively refuted by the record.

TALLAHASSEE, Fla. -- A man set to be executed next week should be spared because of newly discovered evidence, his attorney told the Florida Supreme Court on Tuesday.

Robert Waterhouse, 65, was sent to death row for the rape and murder of a 29-year-old woman in St. Petersburg in January 1980. Gov. Rick Scott already has signed a death warrant and Waterhouse is scheduled to be put to death next Wednesday.

Robert Norgard, Waterhouse's lawyer, tried to convince the justices that a lower court judge was wrong when he found a new witness in the case to be not believable. That person came forward recently to claim he saw Waterhouse leaving a bar with two men and not with the victim on the night she was killed.

Justice Barbara Pariente dominated the questioning. Her line of inquiry, though aimed at making sure her court wasn't making a mistake, also suggested she was leery of disturbing Senior Judge Robert Beach's finding.

Except for the new witness, "the evidence against (Waterhouse) really hasn't changed in the last 32 years," she said.

Waterhouse confessed that "he was having sex with (the victim), then sort of went crazy, that hasn't changed," Pariente added.

Norgard disagreed, saying Waterhouse never specifically said he had sex with Deborah Kammerer, whose nude body was found in the mud flats of Tampa Bay. Norgard also said that blood found in Waterhouse's automobile was never proved to be Kammerer's.

"But there was blood all over the car," Pariente said. "Isn't that indicative of a violent struggle?"

Norgard offered that Waterhouse and his friends often got into bar fights, and the blood could have come from one of the friends.

Assistant Attorney General Stephen Ake said [Judge] Beach got it right, especially considering that the new witness waited so long to come forward.

The witness "has no reason other than his conscience bothering him," Pariente said.

At least one person saw Waterhouse and Kammerer leaving a St. Petersburg bar together on the night of Jan. 2, 1980. Investigators said Waterhouse later raped Kammerer, then beat her in the head and throat about 30 times with what was believed to be a tire iron.

Waterhouse drove to the edge of Tampa Bay, dragged Kammerer into the water and left her to drown, according to the prosecution.

At the time of Kammerer's slaying, Waterhouse was in St. Petersburg after his parole for the 1966 murder of a 77-year-old New York woman, records show. He was nearly executed in Florida's electric chair in 1985 but his execution was held up by judges. .

An attorney in 2005 tried to get Waterhouse removed from death row because DNA evidence in his case had been mistakenly tossed out by a court clerk. But the state Supreme Court eventually sided against him.

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. ... 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. ...

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, ...

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, [Robert's attorneys] 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. ...

History repeated itself. The 1990 retrial was a fiasco. ... [Robert's new attorney] 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.

A 65-year-old man is scheduled to be executed in the US state of Florida on 15 February for a murder committed in January 1980. He has been on death row for half of his life.

In September 1980, 33-year-old Robert Waterhouse was sentenced to death for the first-degree murder of  Deborah Kammerer. Her nude body had been found eight months earlier in mud flats at Tampa Bay, Florida.

Robert Waterhouse, who at the time of the crime was on parole in relation to a second-degree murder conviction in 1966 in New York, was arrested and charged with the Kammerer murder. In 1988, the Florida Supreme Court  ordered a new sentencing hearing. He was re-sentenced to death in 1990.

In 2003, Robert Waterhouse’s lawyers filed a motion in state court for DNA testing of evidence from the crime. At a hearing in 2005, it was established that the evidence had been destroyed and that there was nothing left that could  be subjected to DNA analysis. The judge concluded that the destruction had been inadvertent. A new defense  motion argues that it would be unconstitutional to execute a prisoner who has “consistently and continuously  maintained his innocence”, who in support of this claim has sought DNA testing unavailable at the time of his trial, and where all relevant evidence has been destroyed as a result of official recklessness or negligence. The Florida  Supreme Court is due to hear oral arguments on the motion on 7 February.

The motion also provides new evidence from a man who says that on the night of the murder he was in the bar  from which, according to the trial testimony of a bartender who was a key witness for the prosecution, Robert  Waterhouse had left with Deborah Kammerer. In a sworn statement signed on 9 January 2012, the new witness  (who also worked at the bar) claimed that it would have been impossible for the bartender to have seen the exit  from where she said she was at the time. The new witness said that on the night in question he had seen Robert Waterhouse leave the bar with two white males, not with the victim. He further alleges that he was interviewed by  police at the time, and that he had told them this, but that the detective had seemed “disinterested” and subsequently “accused [me] of trying to protect a murderer”.

The new witness says that he has come forward now because he read a newspaper article on 5 January 2012 which stated that Robert Waterhouse had been seen  leaving the bar with Deborah Kammerer, which the witness states was “not true”. Robert Waterhouse’s lawyers have pointed to the commutation in 2005, by the Governor of Virginia, of the death  sentence of Robin Lovitt. The governor pointed to the destruction by officials of biological and other evidence from  the crime. Noting that the death penalty was the state’s “most severe and final sanction”, he said the system “must  operate with complete integrity” and that the evidence destruction had “breached the public trust in the system”. ...

The two lawyers who represented Robert Waterhouse at his original 1980 trial have seen the statement signed in January 2012 by the man who has come forward to question the trial evidence. These lawyers have themselves now signed statements  asserting that he would have been in important witness for them to present at the trial in order to undermine the prosecution’s key witness, the bartender who had said Robert Waterhouse had left the bar with Deborah Kammerer. They state that although there is a “brief mention” of this witness in the police report which they had seen prior to the trial, the report indicated that he had “had no information about the evening in question”. The lawyers assert that they did not contact this witness because they had  “relied on this police report as being an accurate and truthful statement of what [the witness] told the police”.

My Analysis
When I see that a prosecutor has relied on a snitch to obtain a conviction, two thoughts bob to the surface of my consciousness. First, the prosecutor had a weak case. Second, the prosecutor cared far more about the certainty of winning than he did about the possibility of convicting an innocent man.

I am not claiming that Robert Waterhouse is innocent of the rape and murder of Deborah Krammerer. I am, however, claiming that the evidence of his guilt is astonishingly thin. I am claiming also that even the State's thin veneer of guilt is irreparably tarnished by misconduct at the police, prosecution, and court levels. Quite simply, if Robert Waterhouse were magically granted a new trial, I suggest there is not the slightest chance he would be convicted. We as a people, however, are insistent he be executed.

Waterhouse was convicted based on alleged damning statements (only as retold by the same police who failed to preserve the evidence via a recording), by inconclusive physical evidence (which was destroyed before it could be tested conclusively), by the testimony a bartender (impeached not only by other employees at the bar but by the victim's friends as well), and by the testimony of a snitch (who was impeached by other prisoners but rewarded nicely by the State.)

Because the evidence of Robert Waterhouse's guilt quite simply sucks, I oppose his execution.

3 comments:

Anonymous said...

Should have been excecuted for the first murder....

Anonymous said...

YOU ARE SUCH AN EXCELLENT WRITER!

D M M PELLETIER

Anonymous said...

ROBERT WATERHOUSE WAS INNOCIENT!!!!! I'm glad you wrote that article.... Very well put!!!! Thank you....

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