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Reporter's Deposition
in Zile Case Halted (8/17/96) REPORTER'S DEPOSITION
IN ZILE CASE HALTED Prosecutors want Kidwell's testimony because he interviewed Zile about the night he allegedly beat his stepdaughter, Christina Holt, 7, and the child collapsed into convulsions and died. Gregg Thomas of Tampa, attorney for The Herald and Kidwell, contends that Kidwell's testimony would be redundant because prosecutors already have a taped statement Zile gave police in addition to Zile's testimony at his first trial in May. Prosecutors argue Zile's remarks to Kidwell differed from what Zile told police. On Tuesday, Colton ruled that Kidwell was not protected from testimony as a journalist because Zile was not a confidential source. The judge also noted that Zile's first trial ended in a jury deadlock without Kidwell's testimony. Waiting for the appellate court's decision will not delay testimony in the trial because the the court has agreed to expedite its ruling, attorneys in the case said. A decision should be issued early next week. On Friday, Colton also set a hearing for Monday on whether a week of jury selection will have to be scrapped because of allegations that Polk County's circuit clerk contaminated the jury pool. Late Thursday, prospective jurors revealed that Circuit Clerk E.D. "Bud" Dixon commented during jury orientation that a U-Haul truckload of evidence in the Zile case had arrived at the courthouse. Zile's defense attorneys said the remark could be construed by prospective jurors to mean that the evidence against their client was overwhelming. If Zile does not get a new jury pool, it could be a reason for the case to be sent back for a third trial on appeal, said Ed O'Hara, one of Zile's court-appointed attorneys.
Jury selection in John Zile's
murder retrial has been under way this week, but defense attorneys say
a comment by the Polk County circuit court clerk has contaminated the
jury pool. They want to start over. Zile's attorneys said Dixon's comment suggested that the prosecution's case is overwhelming against Zile, who is charged with aggravated child abuse and first-degree murder in the death of his stepdaughter, Christina Holt, 7. "That clearly implies the evidence is against our client," said Ed O'Hara. Palm Beach County Circuit Judge Roger Colton said prospective jurors could have interpreted that the evidence could have been from the defense as well. Colton said he will rule on Monday whether jury selection should start over. Colton and lawyers in the case had hoped to seat a jury of 12 and two alternates by Monday and begin opening statements. This is Zile's second trial. His first trial, in May, ended in a mistrial, with a Palm Beach County jury split 11-1 for a first-degree murder conviction. The lone hold-out wanted a second-degree murder conviction. Zile's defense attorneys learned of Dixon's comment late on Thursday when a juror said Dixon told 120 people during jury orientation on Tuesday that they should expect to serve three weeks if they were picked for a Palm Beach County murder trial that was moved to Bartow. Dixon told them there was "tons" of evidence in the case, potential jurors said. "He said it's taken us a couple of days to unload the evidence from the huge U-Haul from West Palm Beach," prospective juror Nancy Peterson said. Colton called Dixon to the witness stand in an emergency hearing late on Thursday for an explanation. Dixon, who has been circuit court clerk for 23 1/2 years and has drawn an election opponent for the first time, was called away from his vacation to appear in court. Dixon said he did not recall saying anything about a specific case. "I remember vividly saying something regarding a considerable amount of evidence brought up in a U-Haul truck," Dixon testified. Associated Press
Circuit Judge Roger Colton "very
reluctantly" called a halt to jury selection after prosecutors
and defense attorneys warned that comments from Clerk of the Court E.D.
"Bud" Dixon could lead to a reversal on appeal if the trial
continued and Zile was convicted. Because court officials in Polk County need four to six weeks to prepare and issue summons for enough people to ensure that 150 will appear for possible service on the Zile case, the judge rescheduled the retrial for Oct. 15 in Bartow, where the trial was moved because of extensive publicity in Palm Beach County. Dixon told more than 100 prospective jurors on Tuesday there are "tons" of evidence in the case and it took 1 1/2 days to unload it from a U-Haul truck, said jury candidates who recall the remarks. Dixon said Monday he didn't recall exactly what he said, but he insisted his comments did not affect people who might have been selected to pass judgment on Zile. "I do not feel I have done anything that would possibly have tainted the outcome of this jury," he said. Dixon said part of his job in orienting people summoned for jury duty is to put them at ease. "I joke around with them some and clown around with them some," he said. Zile, 34, is charged with killing his 7-year-old stepdaughter, Christina Holt, in September 1994. His first trial in West Palm Beach ended in a mistrial after one juror refused to convict him of first-degree murder. If a Polk County jury convicts Zile on that charge, Colton could sentence him to death. Zile also is charged with three counts of aggravated child abuse. Zile's wife, Pauline, Christina's mother, was convicted last year of first-degree murder in the case for doing nothing as Zile slapped and spanked Christina in the episode that prosecutors say caused the girl's death. Pauline Zile is serving a life sentence. Several jury candidates who heard Dixon's orientation said Monday they didn't interpret his remarks as a commentary on the defense. "Mr. Dixon didn't say for sure if the evidence was for Mr. Zile or against him," Anthony Collins of Haines City said. Another jury candidate, Skyler Ford, agreed Dixon's comments were harmless. "It was kind of like looking at a present before you open it," he said. "You know it's big, but you don't know what's inside it. I think it's a mistake to start the trial over." Craig Wilson, one of Zile's two court-appointed attorneys, argued strongly that Dixon's reference to "tons of evidence" was "totally inappropriate" and would be a strong argument on appeal for overturning a conviction. "What is shocking in this instance is that it wasn't even close to the truth," Wilson said. Prosecutor Scott Cupp said Dixon clearly meant no harm, but he advised Colton to "err on the side of caution." "Otherwise we'd be starting off with an appealable issue," he warned. Attorneys had spent three days questioning potential jurors. Dixon is running for reelection this year to the $83,800-a-year job, the first year he has been opposed since his first campaign. He was elected clerk of the criminal court of records in 1968 and was elected clerk of the circuit court in 1973.
On Monday, a judge dumped 57 jurors
selected for the pool last week and ruled that the process will have
to start all over again because an off-the-cuff remark made by a court
official may have tainted prospective jurors. Colton also must make time for another first-degree murder trial scheduled for September. Zile's trial was moved to Polk County because of publicity surrounding his first trial on charges he murdered his 7-year-old stepdaughter Christina Holt. The first trial ended in a hung jury in May in Palm Beach County, deadlocking 11 to 1 in favor of convicting Zile for first-degree murder and aggravated child abuse. The delays have frustrated prosecutors, defense attorneys and relatives who have waited since October 1994 for jurors to decide whether Zile murdered the girl. "I wanted to get this thing behind us," said Dorothy Money, 72, of Maryland, who was the child's maternal great-grandmother. "Every time you turn around, he's on television or something. I hope he gets the death penalty." Zile will wait out the next eight weeks back in the Palm Beach County Jail, where he has lived since he confessed in October 1994 that he beat Christina. She went into convulsions and died. The confession shocked South Florida because only days before Zile's wife and Christina's mother, Pauline Zile, had pleaded before TV cameras for help in finding Christina. Clutching one of Christina's teddy bears, she described how her daughter had disappeared from a rest room at the Swap Shop, west of Fort Lauderdale. In April 1995, Pauline Zile was sentenced to life without parole for first-degree murder and aggravated child abuse for failing to protect her child from a fatal beating. John Zile went to trial in April. After the mistrial, Zile's attorneys argued for moving the trial to another county, claiming a media frenzy made it impossible to find untainted jurors in Palm Beach County. In June, the Florida Supreme Court agreed to move the trial to Bartow, in part because the state's more urban counties could not accommodate Colton's trial schedule. But no one counted on Polk County Clerk of Courts E.D. "Bud" Dixon talking about the case with prospective jurors. When prospective jurors asked Dixon last week how long they might end up serving as jurors, he told them they might have to serve three weeks if selected for a West Palm Beach case that involved "tons of evidence," jurors would later tell Colton. Jurors said Dixon told them it had taken a couple of days to unload the evidence from the case from a huge U-Haul truck. Attorneys did not learn of Dixon's comments until Thursday, while interviewing the 93rd potential juror. Defense attorneys said jurors might have interpreted Dixon's remarks to mean that prosecutors had compiled overwhelming evidence against Zile. Zile's attorneys asked Colton to dismiss the jurors and start over. On Monday, prosecutors reluctantly agreed that proceeding with the trial would give Zile firm ground for any appeal. "I don't want to try this case a third time, assuming there is a conviction," said Assistant State Attorney Scott Cupp. "I'm not happy about it. I've been living with this case since 1994." Colton said he had to grant the request to start over since both sides agreed. "It's a shame. It's human frailty, human error," Colton said. "And there's nothing anyone can do to guard against it." Dixon insisted Monday he had done nothing wrong. "I can understand the prosecutors' and defense attorneys' concerns," Dixon said. "I do not feel I did anything that could have possibly tainted this jury." There is no disciplinary review board for elected clerks of courts, and only the governor can remove one from office, experts said on Monday. Still, Dixon's comments may come back to haunt him. He is up for re-election this year, and for the first time in his 23 1/2 years as court clerk, he has an opponent. Also on Monday, the 2nd District Court of Appeal in Lakeland refused to grant an emergency hearing on The Miami Herald's request to stop prosecutors from calling one of its reporters as a witness. Prosecutors want reporter David Kidwell to testify about a jailhouse interview with Zile. The decision means Kidwell can be questioned by both defense attorneys and prosecutors prior to taking the stand, unless the newspaper appeals the appellate court's ruling. Kim Stott, the newspaper's attorney in Tampa, said she did not know if the newspaper would appeal further.
Palm Beach Circuit Judge Roger Colton dismissed the pool of 120 potential jurors. Because Colton is scheduled to preside over two murder trials in Palm Beach County next month, he set a new trial date of Oct. 15 for Zile, who faces charges of aggravated child abuse and first-degree murder in the death of his stepdaughter, Christina Holt, 7. Christina Holt's beaten body was unearthed in a shallow grave near a convenience store in October 1994. The state contends that Zile, 34, and his wife, Pauline, concocted the abduction from a Broward County flea market to cover up the second-grader's death. Pauline Zile is serving a life sentence for her part in Christina's death. First jury split John Zile's first trial in May ended in a mistrial, with a Palm Beach County jury split 11-1 for a first-degree murder conviction. The lone holdout wanted a second-degree murder conviction. The second trial was moved to Polk because of excessive publicity in South Florida. Jury selection had been under way for three days when defense attorneys learned from a potential juror late Thursday that Dixon told the pool to expect to serve three weeks if chosen. Dixon said there were "tons" of evidence in the case, potential jurors said. "He said it's taken us a couple of days to unload the evidence from the huge U-Haul from West Palm Beach," prospective juror Nancy Peterson said. Zile's attorneys said Dixon's comment suggested that the prosecution's case against their client is overwhelming. Colton decided to dismiss the pool Monday after prosecutors agreed that the pool could be contaminated. Setback to reporter Meanwhile, an appeals court on Monday rejected an attempt by The Herald to shield one of its reporters from a subpoena to testify in the case. Prosecutors are seeking the testimony of reporter David Kidwell, who interviewed Zile shortly after Zile's arrest. Colton has ruled that Kidwell, 35, must appear as a witness. Without comment, the Second District Court of Appeal rejected The Herald's argument that a reporter enjoys constitutional protection from such subpoenas, particularly when alternate sources exist for any information the reporter can provide. In the November 1994 story written by Kidwell and published by The Herald, Zile was quoted as saying he was "furious" with Christina, that he "popped her on the mouth," spanked her until "her butt was black and blue" and buried her body. Jerry Budney, the newspaper's associate general counsel, said The Herald was considering an appeal of Monday's ruling to the Florida Supreme Court. Kidwell declined to comment. Herald staff writers Martin Merzer and Amy Driscoll contributed to this report.
The refusal Monday by the 2nd
District Court of Appeal in Lakeland moves Herald reporter David Kidwell
closer to a difficult choice: Honor his subpoena or go to jail. "Would he go to jail? You might see it," attorney Sanford Bohrer said. Circuit Judge Roger Colton ruled prosecutors may call Kidwell as a rebuttal witness to testify about his jailhouse interview with Zile in 1994, shortly after Zile was charged with murdering his stepdaughter, Christina Holt. If Zile testifies, as he did at his first trial, prosecutors may ask Kidwell to verify what he reported in his story - that Zile had said he was "furious" with his stepdaughter because she had sassed him. Zile, 34, is charged with first-degree murder and aggravated child abuse in Christina's death. His first trial ended with a deadlocked jury. Colton has told prosecutors they must make Kidwell available to give a pretrial statement to defense attorneys Craig Wilson and Ed O'Hara. If Kidwell refuses to provide that statement, he could be sent to jail until Zile's trial is over, Bohrer said. Zile's trial in Polk County is expected to last four to six weeks. If Kidwell does testify for prosecutors, the defense attorneys plan to attack his credibility. They plan to show that Kidwell misrepresented himself to get his interview with Zile. Kidwell identified himself to sheriff's deputies as "a friend" of Zile in order to gain access to Zile at the Palm Beach County Jail on Nov. 4, 1994, according to jail records.
Colton dismissed the jurors and ruled the entire process will have to start over from scratch in mid-October, or nearly two years after Zile was charged with beating 7-year-old Christina Holt to death and burying his stepdaughter in Tequesta. After a frustrating May mistrial
when a single juror refused to join her 11 colleagues in a guilty-of-first-degree-murder
conviction, the Zile trial has been moved to rural Bartow because of
excessive publicity in Palm Beach County. Unfortunately, not even the
change of venue has been sufficient to provide this wrenching case with
a new, fair start. Defense attorneys argued that jurors reasonably could interpret Dixon's remarks to indicate that the state had gathered overwhelming evidence against their client. Prosecutors conceded that Zile might be on solid ground for an appeal if convicted and Colton reluctantly agreed. So Zile will have at least eight more weeks in the Palm Beach County Jail to rehearse his sincerity and fine-tune his contention that Christina's death was a regrettable accident, not a cold-blooded murder. Meanwhile, Zile's wife and Christina's mother, Pauline Zile, already is serving a life sentence without parole after being convicted of first-degree murder and aggravated child abuse more than 16 months ago. While Zile awaits his day in court, the meter keeps spinning for Palm Beach County taxpayers, who already are on the hook for nearly $200,000 worth of his taxpayer-funded defense and other trial expenses. The tab is certain to go even higher now that an experienced official who should have known better has caused Zile's second trial to be aborted. When Polk County gets around to assembling another 150-member jury pool for the next attempt in October, Dixon will do well to limit his introductory remarks to the bare facts. Or better yet, keep his mouth shut and simply pass out a printed form of juror instructions.
I think that is terribly unfair. So, OK, he single-handedly scuttled the retrial of South Florida's most despised step-father, child-killer suspect John Zile. So, OK, he tainted the jury pool with his off-the-cuff remarks about the "ton of evidence" in the case. So much evidence, in fact, he told the group of potential jurors, that it took a day and a half just to unload it. Whooey! That baby killer must be guilty! So, OK, he left a trail of reversible
error a mile wide, forcing Palm Beach County Circuit Judge Roger Colton,
who moved the trial to Polk County in the first place to avoid the possibility
of a tainted jury locally, to scrap the trial and start all over again.
You might say that makes Dixon a shoo-in for Florida Bonehead of the 20th Century. And, come to think of it, you'd probably be right. After all, as an elected court clerk for more than two decades, isn't he supposed to know better? Mining a market niche? But I wonder if Ole Bud from Bartow is smarter than he looks. I'm trying to give him the benefit of the doubt here. Maybe he's no bonehead at all. Maybe he just knows a ripe market niche when he sees one. Can you imagine how valuable a clerk like Dixon would be to desperate defense lawyers? He could ask his price. Think of the possibilities. The prosecution's got everything on a defendant: fingerprints, eyewitnesses, DNA, video surveillance tape. Guilty as sin, and everyone knows it. What's a a defense lawyer to do? Call 1-800-BUD'S-MISTRIALS. I can just hear it now: "Bud's Mistrials. Bud Dixon, proprietor, speaking." "Mr. Dixon, I've got a client without a prayer of acquittal. We need reversible error, and we need it bad. I'm not asking you to do anything unethical." "Course not, son. Wouldn't do it even if you asked." "Just be yourself, sir." "Well, that's all I can be is myself, partner." Incompetence for hire. It's an idea whose time has come. Dixon is already providing the service, as Zile's lawyers found out last week. Why should he give it away for free? Loose lips taint juries If I ever had the bad fortune to find myself facing a criminal charge, I can't think of anyone I'd rather have tainting my jury pool than Bud Dixon. I picture it going something like this: "Now, ladies and gentlemen, I want to be careful not to sway your opinion, but if you knew what I know, well, let's just say I've seen the evidence against this character and, believe me, if this guy didn't do it, my name's not Bud Dixon." It would be the best of both worlds. If the jury acquitted me, I'd get off. If it convicted me, I'd get a new trial. This Bud's for you, defendants! Zile, charged with murdering his 7-year-old stepdaughter, Christina Holt, and burying her behind a K mart, already has cost taxpayers more than $200,000 in legal costs. Now he gets a third try. At this rate, Zile could end up having more lives than an alley cat, which is more than you can say for Christina, who didn't even get much chance at one. Bud might be a bonehead; he might be brilliant. Who knows? One thing you can bet on: He is a godsend to any defense lawyer whose only defense is grounds for appeal. John Grogan's column appears every Sunday, Wednesday and Friday.
Nothing tugs at the heart strings
quite like the death of a child. When the death is a grisly one, preceded
by abuse, and covered up with lies, a sense of rage also wells. Christina
Holt was 7 in 1994 when she was beaten to death, then buried behind
a Palm Beach County shopping center. Her mother and stepfather concocted
a story that she "disappeared" from the Swap Shop, west of
Fort Lauderdale. They pleaded on national TV for help in Polk County Clerk E.D. "Bud" Dixon, in office since 1968, professes to "love the law and the courts." Yet he remains unchagrined after tainting the jury pool by telling would-be jurors that the trial could take three weeks, that they might be sequestered, and that the evidence filled a U-Haul truck. He does not recall mentioning the hung jury and mistrial in West Palm Beach. But jurors ask a lot of questions, and he "always" tries to respond. It shouldn't matter, he adds, because Polk County juries are "pretty sophisticated." Well, it does matter. It matters a lot -- and not just to Mr. Zile. If Mr. Dixon, an official "arm of the court," didn't know that, he should have. It seems odd that he wouldn't know it. How much information jurors should have before sitting down to listen to testimony has long been a matter of public debate. It is not a debate to be waged, however, in "jury orientation sessions" when would-be jurors are usually told where to park and how much time to take for lunch. It may take a court order to impress
that on Mr. Dixon, who Christina's mother, Pauline Zile, was convicted in 1995 of first-degree murder and aggravated child abuse. She was sentenced to life in prison without parole. Still awaiting retrial, John Zile has had time to hone his account of events. He admits the beating but says that Christina "just went into convulsions" and died -- an accident. Not his fault. Forget the cover-up. Eventually a Bartow jury -- untainted if Mr. Dixon can be convinced to stay mum -- will decide whether Mr. Zile, too, is culpable. Then and only then will justice, so long delayed, have been done for Christina and those who grieve for her.
Assistant State Attorney Scott
Cupp, who filed the request Monday, declined comment on why he wants
Zile's retrial held in West Palm Beach rather than in Polk County. Zile, 34, is charged with first-degree murder and aggravated child abuse in the 1994 death of his stepdaughter, Christina Holt, on Singer Island. His first trial on the charges ended in a mistrial when one juror refused to convict him of first-degree murder. The retrial, to begin Oct. 15, was moved to Bartow in Polk County because of extensive publicity in Palm Beach County. Prosecutors are seeking the death penalty. Ed O'Hara, one of Zile's two attorneys, said Tuesday that Colton has the legal authority to bring the jurors to Palm Beach County following jury selection in Bartow, as long as he also orders the jurors sequestered to shield them from news coverage. O'Hara said the defense team probably will oppose Cupp's request. "When you try to select a jury and you tell people they're going to be transported to another county for a period of three to four weeks, I think that would make it extremely difficult to pick a jury," O'Hara said. |