Name/DOC #

020285

Address

Florida State Prison

Date of birth

October 12, 1945

Race

White

Date of crime

February 20, 1976

Age at time of crime

29

Date sentenced

May 20, 1976

Victims

Highway Patrolman Phillip Black & Canadian Constable Donald Irwin

Race of victims

White

Relationship to defendant

No relationship

Summary of facts as alleged by state

See attached summary

County where tried

Broward County Florida

Trial Judge

Futch was a former highway patrolman.

Trial attorney

After Tafero’s trial, McCain was disbarred. He was convicted of obstruction of justice for bribing a witness in another case and for narcotics conspiracy.

Prosecutors

· Satz was an assistant DA at the time of the trial

· A day after securing death penalty convictions against Tafero and his co-defendant Sonia Jacobs, Satz announced he was running for DA. Elected largely on this high profile case.

· Satz easily won the election and has been State’s Attorney in Broward County since 1976.

· In November 2000, for the first time in Satz’s career, someone is running against him.

Trial by

Jury

Race of jurors

White

Convicted of

· Theory was that they killed the police so they could steal the trooper’s gun and trooper’s car for getaway.

· It is unclear whether Tafero was convicted on felony murder theory or because jury believed he was the triggerman.

Confession

No

Accomplice testimony

The co-defendant, Walter Norman Rhodes, took a plea bargain for 2^nd Degree Murder in exchange for his testimony against Jesse Tafero and Sonia Jacobs.

Eyewitness testimony

Two truck drivers watched the drama unfold from a distance of 150 to 200 feet away. ( Pierce Hyman and Robert McKenzie.) Neither truck driver could say who the shooter was, but both said in their first statements to the police that Tafero was pinned over the hood of the car during all the shots. Hyman’s story changed slightly only after several discussions with the police. He then said Tafero might have gotten up off the hood of the car before the shooting stopped, but almost when it was over. Both truck drivers saw slightly different things, the most significant being where co-defendant Walter Rhodes was standing. Hyman said Rhodes was always standing in front of the car. McKenzie said Rhodes moved to the rear of the car as the shots were fired. McKenzie’s statement was very significant because the shooter, according to ballistics evidence, had to have shot from the rear of the car. The reason Hyman thought Rhodes never moved from the front of the car is because McKenzie moved his truck toward the exit blocking Hyman’s view of the scene at the exact time Rhodes moved to the back of the car. In Rhodes’ 1982 recantation, he swore under oath he moved from the front to the back of the car and fired at the two cops.

Forensic testimony

· When Tafero was apprehended, he had the murder weapon in his possession.

· Ballistics proved this gun killed both police officers.

· Rhodes had a matching 9mm gun. A bullet hole in the windshield post of the trooper’s car determined that the shooter was at the rear of the Camaro when firing.

· Gun powder tests done on Walter Rhodes, Jesse Tafero and Sonia Jacobs resulted in the following findings:

o Walter Rhodes – gunpowder residue found consistent with "having discharged a weapon."

o Jesse Tafero – gunpowder residue found consistent with "handling an unclean or recently discharged weapon, or possibly discharging a weapon."

o Sonia Jacobs – residue found consistent with "having handled an unclean or recently discharged weapon." Jacobs’s 9 year old son had the same result as she.

Jailhouse snitch

· Ellis Marlowe Haskew testified at trial that he heard Tafero say at a New Year’s Eve party 5 weeks before the murders that he would never go back to prison, and that he owned a lot of guns.

· The fact that Haskew was at that time testifying in many federal drug cases was not disclosed; the fact that Haskew’s lawyer’s fees were paid by the Florida Department of Criminal Law Enforcement was not disclosed.

· When this snitch was named only on the first day of trial, Defense counsel asked for a continuance to investigate Haskew’s background and claims but Judge Futch denied request.

· Defense counsel only had 30 minutes to interview snitch before his testimony.

· In Sonia Jacobs’ trial the DA also used a jailhouse snitch who testified that Jacobs confessed to her that she killed the police and would do it again.

· The snitch was released from jail in exchange for her testimony.

· Years later, the snitch recanted her testimony and went on national television to apologize to Jacobs

· She also said the DA knew she was lying.

Co-Defendant testimony

· Star witness Walter Rhodes testified at both Tafero’s and Jacobs’s trials in exchange for a plea to second-degree murder, escaping the capital charge.

· He said Jacobs fired first from the back seat of the car

· He then said Tafero got away from the officer holding him, grabbed the gun from Jacobs and shot the two police officers.

Principal exculpatory evidence

· Both eyewitnesses said in their first statement to the police that Tafero was held over the hood of the police car while all the shots were fired.

· Jesse did not have enough gunpowder on his hands to prove conclusively he fired a gun.

· Hyman saw Rhodes move from the front to the back of the car to put him into position for shooting the police officers, directly contradicting his trial testimony.

· Rhodes confessed to the murders at three different times: in 1977, in 1979 and in 1982.

· All three recantations became public.

· In 1977, Rhodes bragged to two inmates that he alone committed the double murder.

· A prison guard named Jowers overheard the confession.

· Jowers gave a formal statement to the prosecutor’s investigator, but that statement was never turned over to Tafero’s lawyers.

· The prosecutor said he relied on a polygraph in giving Rhodes a plea bargain to second-degree murder.

· Later, three polygraph experts confirmed that Rhodes did not pass the polygraph and one said it was the most botched test he had ever seen.

· A Brady violation in Jacobs’s case reversed her conviction because the prosecutor failed to turn over the polygraph summary report.

· Star witness Rhodes said to the polygraph examiner that he did not think Sonia fired at all, directly contradicting his trial testimony where he said she fired first and handed the gun to Tafero

Sentencing authority

Judge – according to Florida Statutes.

Statutory aggravating factor

· Found crime to be especially heinous, atrocious or cruel.

· Used the statutory factor that defendant knowingly created a great risk of death to many persons (based on the kidnapping and running of a roadblock after the murders.)

· Judge used Tafero’s prior conviction for violent crimes.

· Judge found the killings were done to avoid arrest (and be returned to prison as both Tafero and Rhodes were on parole) and to hinder the enforcement of laws.

· Judge found murders were committed by a person under sentence of imprisonment (judge used the fact Tafero was on parole).

Non-statutory factors in aggravation

Mitigating factors

· The penalty phase consisted of a 30-second closing statement by Attorney McCain insulting the jury. See below in "Ineffective Assistance of counsel" section.

· Judge failed to consider that Jesse may have been convicted only on a felony murder theory and may not have been the actual cause of death on the facts proven.

Evidence of mental illness, retardation, and/or neurological damage

None.

Criminal history

When Tafero was 20-years-old, he went to prison for attempted robbery and crimes against nature.

Appellate history

· Conviction and death sentence affirmed on direct appeal to Florida Supreme Court. Tafero v. Wainwright.

· Certiorari was denied.

· State and federal habeas unsuccessful.

· In Tafero’s state habeas evidentiary hearing the co-defendant initially agreed to tell the truth about what he did, but copped out at the last minute.

Was ineffective assistance of counsel an issue?

· Tafero’s trial lawyer had a drug problem during the time of the trial.

· After Tafero’s trial, the lawyer was disbarred.

· He was convicted of obstruction of justice for bribing a witness in an unrelated case and for narcotics conspiracy.

· The penalty phase consisted of a 30-second argument by defense counsel who said the defendant feels he did not receive a fair trial, the verdict is not fair, and he will not beg for his life or ask for mercy.

· Later, at the state evidentiary hearing on habeas, McCain testified Tafero forced him to make this argument.

Was police misconduct an issue?

· In Jacobs’s trial, two police officers testified that Jacobs had confessed to them, implicating Tafero in the murders.

· In the 11^th Circuit opinion overturning her conviction, the court found both alleged confessions ludicrous based on the circumstances, but threw only one out on Miranda grounds.

· In Tafero’s case a police officer claimed Tafero bragged about killing the police, but other officers present at the time of the alleged confession did not overhear Tafero’s statement.

Prosecutorial Misconduct

· The prosecutor suppressed the statement by a guard who overheard Rhodes confess to two inmates.

· Prosecutor lied saying he gave Rhodes the deal only because he passed a polygraph exam: the polygraph was a sham.

· In Sonia’s case, the jailhouse informant who later recanted said the prosecutor knew she, the snitch, was making it up.

· In Jesse’s case, the prosecutor came up with a bogus jailhouse snitch named as a witness on the first day of trial and failed to divulge facts about that witness’ career as a snitch.

· (State’s Attorney Satz apparently has a habit of using jailhouse snitches in a large percentage of his cases.) In Sonia’s case, the prosecutor failed to turn over the exculpatory polygraph summary.

· Although the statement only directly exculpated Sonia, because Jesse and Sonia were linked by Rhodes’ testimony, any evidence contradicting his trial testimony and showing him to be a liar would also have helped Jesse.

Appellate counsel

Craig Barnard and Richard Jorand by of W. Palm Beach Public Defender’s Office; Mark Olive and Jenny Greenberg of Tallahassee, Capital Collateral Counsel; Michael Tarre, Coral Gables, Fl, and Bruce Rogow, Nova University, Ft. Lauderdale.