Sept. 2, 2000

FLORIDA:

34 years and 5 trials after one of Florida's most sensational murders,
a 2-bit crook sits on death row at Raiford. A nationally known
constitutional lawyer, never before involved in a capital case, is
representing him. And a federal judge in Broward scrutinizes an 8-
year-old petition for a new trial.

The murder that brings together the condemned Billy Kelley, 57, Harvard
constitutional lawyer Laurence Tribe and U.S. District Court Judge Norman
Roettger occurred on a warm autumn night in the Florida town of Sebring
in 1966.

It is the stuff of film noir: Caribbean trips in a private plane, go-go
parties in a sprawling ranch house, a scandalous love affair, then
murder. The lovers, John Sweet and Irene Maxcy, hired hitmen to get rid
of her millionaire husband, cattle rancher and citrus farmer Von Maxcy.
On Oct. 3, 1966, the killers slipped through an unlocked sliding glass
door near the screened-in swimming pool, and stabbed and shot Von Maxcy
in his bedroom. Within a month the bloody rug had been changed, and the
lovebirds were sleeping in the dead man's bed.

2 years later, Irene, 41, admitted to a homicide detective that she and
Sweet had arranged the murder. She got immunity. Sweet, 48, got charged
with 1st-degree murder. Sweet then named 2 men from Boston as the
murderers of Von Maxcy: Andrew Von Etter and Billy Kelley.

SLIM EVIDENCE

Evidence supervisor Judy Bachman returns with 1 slim envelope.

"This is the least amount of evidence I've ever seen for a 1st-degree
murder conviction," she says. "There's nothing here."

Prosecutor Hardy Pickard, who is now the state attorney in neighboring
Polk County, agrees: "Everything was so circumstantial. The evidence
against Kelley was John Sweet's testimony, and that was about it."

In the slim packet of evidence that put Billy Kelley on Death Row is a
small sheet of lined, yellow paper. It is a request from the jury -- made
during deliberations. It is the primary reason Harvard professor Tribe
and Jimmy Lohman, a New Orleans death row appellate attorney, are now
defending him.

Printed neatly with a ballpoint pin, it says: "As the jury, we would like
to know if John J. Sweet received immunity in Florida for 1st- degree
murder and perjury before he gave information on the Maxcy trial and if
he had anything to gain by his testimony."

The reason for this request: Sweet's testimony was the only evidence
against Kelley. There were no eyewitnesses, no fingerprints, no weapons,
no blood tests, not even a sighting of Kelley in Florida. There was only
John Sweet.

THE KILLING

Before Maxcy looked up, one of the killers threw a sheet over his head.
Maxcy begged them not to hurt him and offered money, Sweet testified. But
they began stabbing him in the back and the stomach. Maxcy lunged toward
the bedroom, frantic. A killer shot him in the back of the neck.
According to Sweet, Von Etter didn't say who. Von Maxcy fell forward and
died face down beside his bed. Von Etter and Kelley stole his car and
left it in the nearby Publix parking lot.

Because of the importance of Sweet's testimony, the jury wanted to be
sure Sweet was telling the truth, not fingering Kelley to escape
prosecution. From the witness stand, Sweet admitted telling "hundreds of
lies under oath." Kelley's defense attorneys asked Sweet about immunity.
He said he first talked to his cop son-in-law, then had his lawyer
negotiate immunity in both Florida and Massachusetts.

But in closing argument, prosecutor Pickard said: "John Sweet did not
have to give the police Kelley to get immunity. John Sweet got immunity
on a long list of things. It has nothing to do with the Maxcy case or
giving them Kelley on the Florida case. He already had his immunity from
Massachusetts on loan sharking, whatever the long list of things were. He
didn't have to give them Kelley to get immunity."

This statement was untrue. John Sweet did give police Kelley to get
immunity. Long before the trial, Sweet's attorney had flown to Florida
and negotiated the immunity deal with Pickard. Then, a week later,
Pickard had flown to Boston. On March 13, 1981, a Boston judge signed an
"Order of Immunity." 9 months later, Pickard and Sweet signed a immunity
contract in the Florida murder. That was the day before Florida indicted
Kelley.

Prosecutor Hardy Pickard now says: "I have nothing to say about what I
said to the Kelley jury about immunity. I have absolutely no comment to
make about that, at this time." Confused over whether Sweet had received
immunity for his testimony, the jury foreman told the court: "We are at
an impasse. We have voted 3 times and have not reached a unanimous vote
and we we do not see how to overcome an impasse."

Judge Bentley sent the jury back to deliberate. Then the jury sent out
the note asking for specifics about the immunity deal. The judge replied
that he would only read back testimony if the jury could "clearly
identify" which portions it wanted to hear.

Unable to identify specific markers, the jury dropped the question. Not
long afterward, jurors returned their verdict: Guilty.

"The defense has always felt the judge should have read back the immunity
deal," Pickard says.

Does Pickard agree?

"My opinion about what should've been read to the jury is not an issue.
The jury believed Sweet and we got a conviction."

Did Pickard believe Sweet's testimony?

"I was assigned the case and told to prosecute. I did my job."

The way John Sweet told it in 1984, he and Irene were madly in love and
wanted Von Maxcy out of the way. He contacted a Boston bookie, Walter
Bennett, who hired Billy Kelley and Andrew Von Etter as hitmen.

According to Sweet, the 2 men checked into a Daytona Beach motel the week
before the murder. Indeed, in the small envelope of evidence at the
Sebring courthouse were American Express receipts for the motel. John
Sweet had signed the receipts, not the 2 men. The motel registration --
unsigned -- was for a "Mr. and Mrs. Andrew Von Etter" and a "Mr. and Mrs.
William Kelley."

At Kelley's murder trial, Von Etter's former wife, Annette Abrams,
testified. By then, Von Etter, as well as the bookie, had been dead for
15 years -- both murdered in unrelated homicides. She said she was at the
motel with her husband.

She also testified that a man at the motel introduced himself as Billy
Kelley. But she couldn't say that he was the defendant. She described the
man as about 6 feet tall with dark hair and a raspy voice.

The clerk at the motel also testified. She, too, described the man called
Billy Kelley: "about 40, 6- to 6-foot-2-inches tall, medium build, dark
hair, kind of curly with a deep husky voice." She could not identify the
defendant.

Billy Kelley was 23 at the time of the murder. He was rail thin and 6
feet, 6 inches. He had straight blond hair. His voice was neither raspy
nor husky.

Kelley's 2 trial attorneys didn't put on a case. One was William
Kunstler, a famed if not infamous civil rights attorney remembered for
his representation of Martin Luther King, The Chicago 7, Angela Davis,
the Berrigan Brothers, and H. Rap Brown. The other was Jack Edmund, who
still practices in Bartow.

In an affidavit years later, Kunstler said: "Harvey Brower [the defense
investigator] ran away from the case . . . not only absconded with my fee
. . . but left us high and dry." Kunstler died in 1995.

Jack Edmund: "We were convinced the jury would see Sweet as a scumbag and
not believe him." He was wrong. Kelley's 2 appellate attorneys, Lohman
and Tribe, now suspect they know the identity of the real killer. He
could be a dead man: Steven Busias, Andrew Von Etter's best friend.
Busias was "6-foot-1 or 6-foot-2" with dark curly hair and a deep hoarse
voice you could never mistake," friend Michael Flaherty swore in an
affidavit. Busias, he said, came into some money and paid him back a
long-standing debt in the months after hitmen killed Von Maxcy.

But more damaging to Busias was the sworn affidavit signed by his son.
Charles Busias: "My father . . . was part of a criminal syndicate . . . .
When I was 12 years old [the year of the murder] as a favor to Walter
Bennett [the bookie], my father went down to Florida for a few days,
which was unusual. . . . This was a turning point in our financial
situation . . . My father never said where all of this money had come
from."

HIS GIRLFRIEND

Years later investigators discovered that Busias' girlfriend was the
woman registered as Mrs. William Kelley at the Daytona motel. She, too,
is dead.

Hobart Willis, a Boston convict, also gave a sworn affidavit: "In late
1967 . . . I had drinks with an acquaintance . . . Steve Busias. Steve
had a few drinks in him and told me . . . that he had picked up a
contract in 1966 and that he and a guy named Von Etter carried it
out. He also said he had someone kill Von Etter."

BODY IN TRUNK

Von Etter's bullet-ridden body was found in the trunk of a car in 1967.
John Sweet died of cancer in a hospital bed in Foxboro, Mass. a few years
ago. The former Irene Maxcy, now 73, lives in seclusion near Clermont and
will not talk about the crime. Marivon Maxcy Adams, 40, the daughter of
Irene and Von, lives in Clermont.

On the night of the murder, Marivon, then 5, stayed at her nanny's house.
She remembers going home the next evening. Cars lined Sparta Road as they
always did on weekends when the Maxcys had parties at their Sebring
ranch, where her dad barbecued on the indoor grill and her mom passed out
daiquiris in the go-go room. She remembers wondering why everyone was in
the living room, not the go-go room, and why they were all crying. She
remembers John Sweet living in the house shortly after.

"When Billy Kelley's trial started," she said, "I wanted him to fry for
killing my father. But by the end, I felt there was just not enough
evidence to convict him. Then, because of things my mother told me, I
was certain Billy Kelley was innocent."

Professor Tribe, who has tried 28 cases before the U.S. Supreme Court and
won 18, also believes his client is innocent. "I got involved to stop a
miscarriage of justice. It's as simple as that."

Billy Kelley has been on death row for 16 years. When arrested at a
Holiday Inn in Tampa, he was dead drunk and on the lam for jumping bail
on a marijuana dealing charge in North Carolina.

He'd done time before for repeated drunkenness, breaking and entering,
and forging checks and money orders. He started running away at 11,
stealing cars at 12, and went on from there.

"I'm not proud of my background," he says, "and I can't justify all of
the lowlife, thieving things I did. But I have never been violent. I have
never murdered anyone."

Late Thursday afternoon, Judge Roettger's secretary said the judge had
signed an order in Key West related to the case. She said the order would
be filed today.

(source: Miami Herald)