Friday, December 19, 2008


Joseph Nahume Green lay in the dark of a Starke motel room last week, trying to savor the freedom of being off death row.
But the hum of the air conditioner, then the eerie stillness when it
shut off, disturbed his reverie. He grew anxious, wondering if the
voices outside his door were plotting to break in and stab him to death.

"I didn't know who knew I was there or had seen me enter," the
43-year-old laborer said. "I was helpless in a motel room all by myself with nothing to do except stare into the empty darkness."
Exhausted, Green checked out the next morning, and returned to the sofa in his brother's crowded Starke home.

After 7 years of imprisonment, he is finding it difficult to be alone.
Green, who was convicted of the 1992 killing of the society page editor of the weekly Bradford County Telegraph and sentenced to death, was released without bond last week. His freedom followed a series of legal decisions that overturned his conviction and disallowed the only prosecution witness to place him at the crime.

While death row inmates occasionally have their sentences commuted to life in prison, it's rare for an inmate to leave death row a free man.
Out of 777 inmates sentenced to death in Florida since the death penalty was reinstated in 1973, 19 have been set free, according to the Death Penalty Information Center in Washington.

Green, meanwhile, maintains that he is "totally, 100 % innocent."
He remains under indictment, charged with murdering Judith Miscally during a 1992 robbery attempt at a pay phone in Starke.
But Jeffrey Leukel, Green's court-appointed attorney, said he will
file a motion for a judgment of acquittal.

"The reason this is being done is the state refuses to drop the case and has proposed that the judge review the previous trial transcripts, as opposed to the expense of a new trial," Leukel said. "Upon completion of his review, he has indicated he will grant a judgment of acquittal." Assistant State Attorney Bill Cervone, who prosecuted the case, is out of town and unavailable for comment. His supervisor, Jim Nylon, didn't return telephone calls yesterday, and State Attorney Rod Smith also was unavailable.

The Florida Supreme Court overturned Green's conviction in November 1996, saying evidence had been improperly seized. Justices also ruled that a
defense eyewitness shouldn't have been asked during cross examination if she was a recovering alcoholic because there was no evidence to indicate she had been drinking the night of the slaying.

The court ordered a new trial in Alachua County rather than Starke, where the victim was well known, the case had received extensive publicity and there had been 8 violent deaths in a 2-year period.
Leukel said Green's extensive criminal record - including a prior murder conviction - was known to many residents of Starke, a small town about 50 miles southwest of Jacksonville.

Justices also said the testimony of Lonnie Thompson, the state's only
eyewitness, was "often inconsistent and contradictory." Thompson is
mildly retarded and has suffered head traumas that have caused memory problems, the ruling said. Thompson also admitted to drinking 8 cans of beer and using cocaine and marijuana before Miscally's shooting. He also told police at first that a white man shot Miscally. Green is black.

Based on the court's ruling, Leukel challenged Thompson's competency. The trial judge found Thompson incompetent to testify, and, last month, the 1st District Court of Appeal affirmed that decision. "I would say this is very unusual, but this is an unusual case," said Dave Davis, a Tallahassee lawyer who handled the Supreme Court appeal.
"The state's case stood and fell on Lonnie Thompson. . . . It was obvious that Lonnie Thompson had severe problems and the state had an extraordinarily weak case to begin with."
There was no physical evidence, such as a gun or fingerprints, linking Green to the crime.

Green, meanwhile, said he is trying to enjoy his freedom while waiting for his case to be settled. But his attorneys, Leukel and Reed Replogle, don't want him to be too visible in the community.
"We have considerable concerns for his safety because of the high emotional level associated with the case," Leukel said.
Dressed in his prison blues, Green walked out of jail at 4:59 p.m. July 7, in the middle of a fierce thunderstorm. Leukel and D.C. Johnson, a Gainesville investigator, took him to Goodwill, where Leukel bought him a blue pin-stripe and a conservative gray suit, gray slacks and several pink button-down shirts.
Later, Green dined on his first steak dinner in 7 years at Leukel's law office. He then celebrated with a glass of champagne.
But after being in a regimented prison environment, Green says: "I have a whole lot of iffy time where I stare into space and have nothing to do."

As he waits, he tries to keep busy, frequently visiting Leukel's office
to review trial transcripts. He also plays with his brother's frisky Rottweiler puppy. Green, a Miami native, wants to return there to find a job and marry his fiancee, Margie Leverson.
He said his fiancee will help keep him out of trouble.
"I've been down that road, and I don't want to go back," he said. His criminal record includes 20 arrests over a 17-year period, including a 3-year prison stint for 2nd-degree murder.

Green, a welder, painter and mechanic, was working as a laborer for Darcon Inc., a subcontractor for the DuPont company, when Miscally, a 47-year-old Lawtey resident, was shot. Miscally and her husband, Russell, owned a street-cleaning business and had been sweeping the parking lot of the Bradford County Courthouse. They needed more equipment, so she drove
to a convenience store at U.S. 301 and Florida 16 to call her son. About 10:10 p..m., a gunman approached Miscally and demanded money. Miscally, who had only 75 cents, began screaming and struggled with the gunman, who shot her in the stomach.

Green was arrested the next day based on a description by Thompson, an acquaintance.

The state's case hinged on Thompson, who was at a convenience store across the street and ultimately identified Green as the killer. Thompson testified that he had seen Green earlier in the evening, when Green told him he needed money because he was behind in his rent at the Starke Motor Court. But defense lawyers countered that Thompson gave several accounts of what happened.

Another eyewitness, who testified for the defense, said she saw three men surrounding the woman. Just after hearing the shots, Katrina Kintner, who was sitting in her car across the street, said she saw 2 of the men run behind a garbage bin. She said she did not see where the 3rd went. A 3rd witness, who was in his car at a stoplight when he heard the shot, said he saw 2 people in front of the store. However, because he wasn't wearing his glasses, he said he couldn't identify them.
At the time of the shooting, Green said, he was at a Pizza Hut 3 blocks away helping 2 men take the muffler off their car. They corroborated Green's story.

Sometime after 11 p.m., Green returned to the motel where the owner saw him outside and reminded him that his rent was due the next day. Jurors also saw a suit seized from Green's motel room after Thompson told police what Green was wearing. But Thompson admitted under cross-examination that he had told police the suit was a different color, then said he couldn't remember what it looked like. The Supreme Court said the suit, on which no forensic evidence was found, was improperly seized by police.

The victim's husband, Russell Miscally, said he felt the prosecution did "a magnificent job" but that police mishandled the crime scene. It was not cordoned off, and her pickup truck was released that night without being processed.
Miscally, a Jacksonville firefighter who lives in Lawtey, said he is
still convinced Green murdered his wife. "I don't like this, but I just have to accept it," said Miscally, who has since remarried. "If I had $700 trillion dollars, there's nothing I could do about it. God will sort this out. The only thing we can do is bite our tongues."

Green, meanwhile said he spent his time on death row in the law library looking for any legal ruling that might save his life. While other inmates watched the soap operas All My Children and As the World Turns, he read law journals, wrote three or four pen pals and did calisthenics.
For most of that time, he said he had no visitors.
And he worried when his date with death would come.
"You don't know when you're going to go," he said.
Green said he learned his conviction had been overturned while listening to the radio.

"I was so elated and started praising God for having someone save me from the electric chair," he said. "I was just overjoyed to know I had another chance."

Though death row was "stagnating, dehumanizing and degrading," Green said he still had more privileges there than at the Bradford County jail, where he was moved after his conviction was overturned.
Now, Green can wear one of his suits and remain outdoors as long as he likes.
"If I want to, I can walk down the street and feel the sun . . . on my
face, and a week ago, I couldn't do that . . ." he said. "The grass is
greener, the sun is hotter, the sky is bluer. I can even appreciate
seeing a raindrop."
(source: Florida Times-Union)

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