Monday, December 29, 2008

Faulty evidence

Faulty evidence

Ates big break came in 2005, about the time he began his study of Revelation, when the FBI announced it would no longer use a ballistics testing procedure known as metallurgy.

The FBI deemed the procedure, an analysis of bullet lead, was "unreliable and inaccurate."

Kathleen Lundy, an FBI expert in metallurgy, testified for the prosecution during Ates' trial. She said bullets owned by Ates likely had been manufactured by the same company at about the same time as the ones that had been used to kill his wife.

It was precisely the sort of evidence studies showed was inherently flawed.

"The science was simply wrong," Assistant State Attorney Geoffrey Fleck noted in his report calling for a new trial for Ates.

Fleck said the FBI repudiation of its expert's testimony gave Ates "new evidence" on which to base an appeal.

But why? Ates asked skeptically last week, did the state attorney's office wait until 2008 to call for a new trial for him when it knew in 2005 evidence it had used to convict him was worthless.

Ates remarried following Norma's death and had fathered a child with his second wife. The two remained married after his imprisonment, but agreed to divorce when he learned his case had been "time barred" from further appeal.

They divorced after 2005. His former wife has remarried.

"I should have been out in 2005," he said. "If I had been let loose in 2005, my family would still be intact."

Ates claims the FBI had advised the state attorney's office in Gainesville about its ruling on metallurgy, but the office refused to act until pushed to do so by Okaloosa County Circuit Court Judge Thomas Remington.

As Ates was pushing for his conviction to be overturned based on the FBI ruling, his case was being re-examined by two Crestview residents who decided to make a documentary about the case.

The pair requested documentation from the state attorney's office in Gainesville and persisted in their requests, they said, until they finally got it.

They said they found enough to convince themselves that Jimmy Ates was innocent.

"We had tons of boxes, and I would say every box had a dozen ‘aha' moments in it," said Travis Huisken, one of the would-be movie makers. "I think we got to the point where we almost could have recreated the event."

The pair - one of whom asked not to be identified - said they received threatening calls when they were collecting and going through the evidence they'd copied and photographed. They eventually gave up on the documentary.

However, Huisken and his friend gave what they'd found to the Ates family. Jimmy Ates said he has supplemented his own findings with what the pair discovered.

"They found this stuff and turned it over to my wife. I looked at some of it. That's what started me on this trip," Ates said.

Two items that Ates included in his request to overturn the murder verdict was used by Fleck in his request for a new trial.

One was that prosecutors had failed to disclose to Ates' attorneys that they had found a fingerprint on a gun box in Ates' home that contained .22-caliber bullets. The fingerprint didn't belong to Ates, his wife, lawmen at the scene or two people considered "persons of interest" in the crime.

Another finding was that DNA samples were taken from two hair follicles found on a bloody towel in the home.

The prosecution argued at trial, Fleck said, that no DNA other than Ates' had been taken from the home. Analysts were unable to obtain a positive identification from the DNA samples, but a third follicle found on the same towel was never tested for DNA, Fleck's report said.

Ates insists there was more in the state attorney's office's collection of evidence that could have been used to prove his innocence than even what Fleck has revealed. He mentioned videotapes of the baccalaureate service itself.

Fleck said in his report that many of the accusations and requests Ates made in his appeal were baseless.

Homicide and politics

Norma Jean Ates' murder investigation began with a flourish. Just days after the shooting occurred, lawmen were assuring reporters that they were making progress toward finding a killer.

The race to solve the case quickly turned from a sprint to a marathon. Four years after the murder, Norma Jean Ates' body was exhumed for further study.

Glen Barberree was the detective who led the investigation. Barberree, who has retired, said Friday, "I don't want to comment" on the case.

The investigation also devolved into a political hot potato. Norma Ates' uncle, W. C. "Buck" Bryan, had connections that extended to the office of then-Gov. Lawton Chiles, several sources close to the case have said.

Bryan, Ates said, wanted him tried and convicted after Ates began dating a former student, later his second wife, not long after Norma's death.

"Just because I started dating a young girl, they turned on me," he said of Norma's family.

Curtis Golden, who was the state attorney in the First Judicial Circuit at the time of the murder, confirmed he was at a political event when Bryan chided him for failing to prosecute Jimmy Ates. Chiles also was there.

Golden said he responded by telling Bryan he didn't feel there was enough evidence to successfully prosecute. Golden eventually recused himself, he said, when Bryan and others implied a cozy relationship between Golden and Ates' brother, Luther.

The case was transferred from the 1st Judicial Circuit to the 4th Judicial Circuit in Jacksonville. That circuit also declined to prosecute because of a lack of evidence, Golden confirmed.

Rod Smith, the state attorney in the 8th Judicial District, agreed at Chiles' request to take the case. Smith would later run for governor.
Smith won the case with evidence that all parties acknowledged was primarily circumstantial.

Ten years ago, the trial of Jimmy Ates elicited strong feelings on both sides. Today, many people who were contacted to comment on the case declined to do so and said they wished the case would just go away.

Bryan, who perhaps pushed harder than anyone to see Ates convicted, has since passed away. His wife, Joyce Bryan, although hesitant to speak, has not changed her opinion of Ates' guilt.

"Oh sure he's guilty. He may get out, but he's guilty," she said. "He was there when she was murdered."

Glenda Tharp, Ates' newly remarried ex-wife, continues to maintain his innocence.

"I still support him with all my heart," she said. "I want to see him walk out of that jail."

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