Judge cites prosecutor trickery, orders retrial

By DAVID KARP
© St. Petersburg Times,
published December 6, 2001

In an opinion highly critical of a Polk County prosecutor, Hillsborough Circuit Judge Barbara Fleischer overturned Melendez's murder conviction and ruled prosecutors must try Melendez again if they want to keep him in prison. Fleischer concluded, however, that new evidence has "seriously damaged" the state's case.

A jury in 1984 convicted Melendez, now 50, of shooting a beauty salon owner, Delbert Baker, in the head as he begged for his life.

Prosecutors had no physical evidence linking Melendez to the murder, but they called two witnesses who pointed to Melendez. One witness, a jail inmate, testified that Melendez admitted to the killing. The other said he drove Melendez to the victim's beauty salon around the time of the killing.

Fleischer wrote that prosecutors withheld evidence that "seriously undermines" the credibility of both witnesses. The withheld evidence supports the defense's theory that another man committed the murder, the judge said.

In her ruling, Fleischer discussed at length the duty of prosecutors to disclose information favorable to the defense.

The prosecutor, Hardy Pickard, withheld notes of interviews he conducted with key witnesses, and kept police reports about the key witness' conduct secret. Prosecutors in Polk County had a practice of issuing secret subpoenas to hide investigative work from defense lawyers, testimony showed.

"The court now has a substantial amount of additional evidence before it that supports the defendant's theory of defense and trial strategy, but which was not presented to the jury," Fleischer wrote.

Melendez's attorney, Martin McClain, called the prosecutor's behavior "shocking.

"The system is not premised on the notion that the prosecutor wants to win, but that he wants justice to be done," McClain said. "The way this was done is not consistent with that notion."

In November, a federal judge in Fort Lauderdale suggested that the same prosecutor intentionally misled a jury to win a death sentence in another Polk murder.

Pickard and lawyers with the Attorney General's Office, which handled the appeal, could not be reached for comment Wednesday. They have 30 days to decide whether to appeal Fleischer's ruling.