11-004073CB In Re: Senate Bill 2 (William Dillon) vs. * Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, March 28, 2012.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

402 Senate Office Building

Mailing Address

Tallahassee, Florida 32399-1100 404 South Monroe Street

[phone]

DATE COMM ACTION

11/1/11 SM Fav/1 amendment

RC

November 1, 2011

The Honorable Mike Haridopolos President, The Florida Senate Suite 409, The Capitol Tallahassee, Florida 32399-1100 Re: SB 2 (2012) – Senator Mike Haridopolos

Relief of William Dillon

SPECIAL MASTER’S FINAL REPORT

THIS IS AN EQUITABL E CLAIM FOR $810,000 FROM

GENERAL REVENUE, PLUS TUITION WAIVERS, TO COMPENSATE WILLIAM DILLON FOR HIS 27-YEAR WRONGFUL INCARCERATION FOR MURDER.

FINDINGS OF FACT:

On August 17, 1981, the body of 40-year-old James Dvorak

was found in a wooded ar ea frequented by gay men at

Canova Beach. Canova Be ach is between Melbourne

Beach and Satellite Beach in Brevard County, opposite the Eau Gallie Causeway. There were multiple fractures o

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Dvorak’s skull. The medi cal examiner determined that

Dvorak was beaten to death with fists and possibly with a blunt instrument. No murder weapon was ever found. It was

estimated that the beating occurred between 1:30 and 3:30 a.m. on August 17 and that Dvorak died soon afterward. John Parker drove to Canova Beach on August 17, around

1:30 a.m. or a little later. He observed a man walk up from

the beach. The man appeared unsteady and upset. He

wore shorts and no shirt, but had a shirt in his hand. Parke

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pulled his truck over to the man and asked what was wrong.

The man told Parker that he could not find his car and asked Parker for a ride to the A-Fr ame Tavern, which was not fa

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away. Parker later described the man as 21 to 27 years old,

SPECIAL MASTER’S FINAL REPORT – SB 2 (2012)

November 1, 2011

Page 2

about 6 feet tall, and having a mu stache. The man said his

name was Jim. He was sweaty and had blood smears on his leg and pants. When Parker asked about the blood, the

man said he had been in a bar fight. Parker drove the man to the A-Frame Tavern. The next morning, Parker found a T-shirt in his truck. The

shirt was yellow and had “SURF IT” printed on the front and

back. When Parker later hear d about the murder at Canova

Beach, he contacted the po lice and told them about the

hitchhiker at Canova Beach and the T-shirt that was left in

his truck. The Brevard County Sheriff’s Office ("BCSO") obtained the T-shirt and prepared a sketch of the hitchhike

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from Parker’s description. Blood on the T-shirt was matched

to the murder victim, Dvorak.

A t the time of the murder, William Dillon was 22 years old,

unemployed, broke, locked out of his apartment for not paying the rent, and was spending his days and nights hanging out with acquaintances or strangers, and "bumming"

cigarettes, drinks, meals, and ri des. Dillon was often at the

Pelican Bar, which is across A-1-

A from Canova Beach. A

couple of weeks before the mu rder, he met Donna Parrish at

the Pelican Bar and they were spending a lot of time together. Unlike the hitchhiker, Dill on did not have a mustache, but

someone told the BCSO that Dillon had tried to grow a

mustache and had recently shaved it off. Parker described the hitchhiker as being about 6 feet tall. Dillon is 6 feet, 3

inches tall. Nevertheless, inte rviews conducted by homicide

investigators in the Canova Beach area after the murde

r

caused Dillon to become a suspect. Some people thought the sketch of the hitchhiker looked like Dillon. Parrish

reported to police that the ske tch looked like Dillon and he

would rob gay men for money. Other people said they heard Dillon bragging about beating up gay men.

When Dillon was contacted by the BCSO and interviewed,

he gave inconsistent account s of his whereabouts on the

night of August 16 and the early morning hours of August 17. Dillon said he was at home of an acquaintance, Matt Bocci,

the evening of August 16 and never went out. He later told investigators that he had lied ; he had left the Bocci residence

the evening of August 16, but he did not go to Canova

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November 1, 2011

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Beach. The interviewer, Agent Thom Fair, said that Dillon had recently-healed scratches on his hands. Dillon agreed to two polygraph test s. After the first test, the

examiner concluded that Dillon showed deception when he

was asked whether he was at Canova Beach at the time o

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the murder and whether he hit Dvorak. After the second test, the examiner concluded that Dillon showed deception

when he was asked whether he had taken money from

Dvorak. No fingerprints, blood samples, or hair samples taken from

the crime scene were ever linked to Dillon. When John

Parker was first asked whether he could identify Dillon as the

hitchhiker, Parker was unable to make a positive identification, but he later pi cked Dillon out from a group o

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photos. During one of Dillon’s intervie ws, the deputies got Dillon to

handle a piece of paper that was later given to John Preston,

the handler of a tracki ng dog. According to Preston, his dog

connected Dillon’s scent on the piece of paper to the bloody

T-shirt left in Parker’s truck, indicating that Dillon’s scent was also on the T-shirt. Three or four people said they had seen

Dillon wearing a yellow “SURF IT” T-shirt like the one left in

Parker’s truck by the hitchhiker. Donna Parrish also gave inconsistent accounts of where she and Dillon had been the evening of August 16 and the early

morning hours of August 17. She said she called for Dillon

at the Pelican Bar and talked to him at 2:00 a.m. on August 17; he got a ride to her home and arrived about 3:00 a.m.;

Dillon was scared and depressed when he arrived and told her the “police would be after hi m.” She said Dillon’s hands

were cut and he had dried blood on his hands. A week afte

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Dillon’s arrest, Parrish changed her story agai n. She said

that she and Dillon were toget her at the Pelican Bar on the

night of August 16; she left by herself at 1:00 a.m. on August 17 and Dillon left shortly afterwar d. They talked for a short

while outside the bar and then Parrish hitchhiked home. She

says she returned to the bar and Dillon was not there, but

then showed up agai n and he had money to buy drinks fo

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himself, Parrish, and some other people. A waitress at the

bar also stated that Dillon ha d money that night, something

she had never seen before. Pa rrish said she left Dillon and

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November 1, 2011

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hitchhiked home. She said Di llon got a ride to her house

and told her that he had gott en into a fight and hurt

someone. She said he later told her he had beaten someone “so bad he died.”

A month later, Parrish changed her story again to say that

she saw Dillon in the parking ar ea next to Canova Beach just after midnight, talking with someone at a parked car. She later went looking for Dillon, taking the path to the beach, and came upon Dillon standing next to the naked and bloody body of a man. Parrish change d her account of events so

many times that all of her st atements, whether they helped

or hurt Dillon, are subject to doubt unless they are

corroborated by others. It was later disclosed that, follo wing an interview of Parrish

by Chief Homicide Investigat or Charles Slaughter, he drove

her to his residence and had se xual intercourse with her.

The sexual encounter was reported by Parrish, who filed a

complaint with the Sheriff’s Of fice. Slaughter admitted the

sexual contact and he was immediately suspended, demoted, and transferred out of the homicide unit.

After Dillon’s arrest, he was placed in a jail cell with Roge

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Chapman. Chapman asked to speak with deputies. A gent

Thom Fair met with Chapman at the jail. Chapman told

A gent Fair that Dillon said he had “sucker punched” a man at

the beach and then beat him with his fists. At the claim bill hearing held on November 2, 2009, Chapman testified that

he had been coerced by Agent Fair to make up lies about Dillon or face harsh prosecut ion on his own charge of sexual

battery. Chapman’s charges were later dropped for lack o

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evidence. Agent Fair submitted an affidavit in which he asserts that Chapman's statem ent was not coerced. The

testimony of Chapman and Agent Fair on this point was not subject to cross-examination a nd is otherwise insufficient to

resolve the claim about coercion. Sometime after Dillon’s arrest on August 26, 1981, Charles and Rosanne Rogers told deputies that Dillon and Parrish had spent the night of August 16 with them in Cocoa Beach.

Dillon did not say that he had stayed with the Rogers until

the Rogers came forward with that account. When Dillon

was asked at his trial why he had not said earlier that he

stayed with the Rogers on August 16, he said he had

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November 1, 2011

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forgotten their names. Several people said they saw Dillon at the Bocci residence on August 16 and several people said they saw Dillon at the Pelican Ba r the night of August 16 and

in the early morning hours of August 17. I cannot believe that all of these people were lying or mistaken. In addition, both Dillon and Parrish had given sworn statements that they

were at the Bocci residence on August 16. The Rogers' account was not consi dered credible in 1981 and it is still not

credible.

A t Dillon’s trial, Parker identifi ed Dillon as the hitchhiker who

left the yellow T-shirt in his truck; Preston testified that his dog matched Dillon to the bloody T-shirt; and Chapman testified about Dillon’s “confession” to him when they were sharing a jail cell. There wa s testimony that Dillon often

wore the same kind of yellow T- shirt. Parrish testified that

she saw Dillon at Dvorak’s b ody. It is not surprising,

therefore, that the jury found Dillon guilty of murder beyond a

reasonable doubt.

LITIGATION HISTORY:

Dillon was tried in the circui t court for Brevard County. On

December 4, 1981, he was found guilty of first degree

murder. He was sentenced to life in prison.

A week after the trial, Dillon’s attorney moved for a mistrial

because Parrish wanted to recant her trial testimony. A

hearing was held before the trial judge to consider the motion. Parrish said that she had lied about seeing Dillon at the body of the murder victim . She said she lied because

Sheriff’s deputies told her that if she did not lie for them, she

would “rot in jail for 25 years.” Parrish did not explain what

crime she could have been prosec uted for that could cause

her to be sentenced to 25 years in prison. Following the hearing, the trial court denied the motion for mistrial, and

Dillon was sent to prison. In addition to Dillon’s loss of freedom and the many othe

r

deprivations caused by his incarceration, he claims to have been raped while in prison. He also says he has dental

problems due to the poor dental care he received in prison. Dillon’s attorneys have claimed that his conviction was the

result of prosecutorial misconduct, but the evidence for that claim is weak. The dog h andler, John Preston, was

discredited and shown to be falsely claiming that his dogs

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were matching crime scene evidence to suspects when there was no match. However, he was discredited long afte

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Dillon’s trial. There is no ev idence to show the BCSO knew

that Preston was a fraud. The jailhouse snitch, Chapman, was not credible and he has recently recanted his recantation at the claim bill he aring. Chapman claims that

the Innocence Project told him what to say at the hearing and he adheres again to his 1981 assertion that Dillon told him that he had beaten a man. Parrish also recanted he

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recantation of her testimony against Dillon. Parrish now says that she recanted her trial testimony due to being manipulated by Dillon's attorney . It is undisputed that a

BCSO investigator had sex with Parrish during the Dvorak murder investigation, but swi ft disciplinary action was taken

to demote and transfer the invest igator and it was not shown

to have affected the pr osecution of Dillon.

Dillon had a good record in pr ison with respect to work

assignments and general behavior. In 2005, Dillon learned

about the Wilton Dedge case an d Dedge’s exo neration for a

rape conviction based on DNA te sting. Dillon filed a motion

for DNA testing. In 2007, an interview of Dillon was seen by

staff at the Innocence Project of Florida. The Innocence

Project got involved to assist Dillon and paid for DNA testing of the bloody T-shirt by a pr ivate laboratory which used

testing methods not available at the state labor atory. The

DNA testing showed that the sweat and skin cells on the T-

shirt did not come from Dillon. A motion for a new trial was granted and Dillon was released from prison on Novembe

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18, 2008. In December 2008, the State Attorney for the

Eighteenth Judicial Circuit, Norm an Wolfinger, decided not to

pursue a new trial. In a lette r sent to the Special Master, Wolfinger explained that “meet ing the State’ s burden of proo

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was going to be unrealistic in li ght of the nine witnesses who

are now deceased and another key witness who has substantial medical issues.”

The New Investigation

Following Dillon's release from prison, Sheriff Jack Parke r

ordered a new investi gation of the murder of James Dvorak.

On June 9, 2011, the BCSO announced its conclusion that

Dillon had not murdered Dvor ak; that the murder was

committed by four men who had not previously been suspects--James Johnstone, Phillip Huff, Daryl Novak, and

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Eric Novak. These four men have not been arrested and charged with the murder, but the State Attorney for the

Seventh Judicial District (the case was specially assigned out of Brevard County to avoid any charge of partiality) is

preparing the prosecution. Th e four men are innocent until

proven guilty in a court of law. The investigators foun d a telephone memo for a call that had

been received by the BCSO in 1981 from someone who had overheard Johnstone and Huff talk ing about having beaten a

homosexual man at the beach. The Brevard County Public Defender's Office received a tip in 2010 from someone who

had read about Dillon's releas e from prison, reporting to

have heard the two Novak brot hers in 1981 talking about

beating up and possibly killing a gay man at the beach. In

1981, all four men lived in Sate llite Beach, near the scene o

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the murder. All four suspects origina lly denied involvement when

questioned. However, in February 2011, Huff confessed that he was involved in the murder of Dvorak. Huff, who was only 17 at the time, stated that he, Johnstone and the Novak

brothers were smoking marijuana at Canova Beach when they were joined by Dvorak, who was a stranger to them.

A t

some point, Johnstone and Dvor ak walked off into a wooded

area. Huff and the Novak br others later went looking fo r

Johnstone and Dvorak and found them on the ground having

sex. Upon being discovered, the two got up, and Johnstone began punching Dvorak. Then t he Novak brothers chased

and beat Dvorak as he pleaded for his life. Huff had no

explanation for why the Novak brothers "went into a rage." Huff said Dvorak was hit in the head with a tree limb. The BCSO investigators found Hu ff's story to be credible

because the details matched t he crime scene investigation.

Johnstone, Huff, and Eric Nova k volunteered DNA samples

and a DNA sample was obtained from Daryl Novak without his knowledge. Johnstone's DNA matched sweat found on the yellow T-shirt that had been used to convict Dillon.

A t

the time of the murder, Johnst one was 20 years old, 5 feet,

eleven inches tall, of slender build, with brown hair and a mustache. Those features ma tch John Parker’s description

of the hitchhiker with the yellow T-shirt that Parker picked up

the night of the murder. Parker said the hitchhiker told him

his name was Jim, which is James Johnstone's nickname.

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The hitchhiker told Parker he was looking for his blue Dodge

Dart. Johnstone owned a blue Dodge Dart. Therefore, the

evidence implicating Johnstone is very strong. The hitchhiker told Parker that he had left some people who were still on the beach, which provides a link to the involvement o

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the other men. The new investigation disclosed so me earlier criminal activity

by Dillon: Aug. 1978 Possession of stolen property

Nov. 1978 Possession of stolen property Oct. 1979 DUI May 1981 Furnishing alcohol to a minor Dillon was prematurely dischar ged from the U.S. Army in

1979 after two years of a four-y ear enlistment. Dillon ended

his military service by being "committed to the Commissione

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of Health and Social Services to serve 90 days with 65 days

of the sentence suspended" as a result of his possession o f

stolen property. He receiv ed a discharge " under honorable

conditions," which is a lesser discharge status that is used

when a person is found unsuitable for military service (which

can be for petty offenses). The 244-page report of the new in vestigation into the Dvorak

murder ends with a conclusion t hat Dillon was not involved in

the murder of James Dvorak. The conclusion also states:

"Unfortunately, ther e are still lingering questions concerning

the behavior of William Dillon on and about August 17, 1981. Based on witness statements, witness testimony, his

previous pattern of conduct, and his inconsistent and untruthful statements, conc erns and important unanswered

questions remain relating to Mr. Dillon's activities."

CONCLUSIONS OF LAW:

The standard of proof to establ ish liability for a claim bill is

preponderance of the evidence. However, when the

Legislature created chapt er 961, F.S., in 2008, to establish a

statutory proceeding to com pensate victims of wrongful

incarceration, it included a requirement that the claimant

demonstrate "actual innocence" by clear and convincing evidence. In addition, a person seeking the compensation provided by chapter 961 must have no felony conviction

other than the convicti on for which he or she was wrongfully

incarcerated. The relief pr ovided under chapter 961 is

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November 1, 2011

Page 9

$50,000 for each year of wrongful incarceration; a tuition

waiver for up to 120 hours at a career center, community college, or university in Flori da; and reimbursement of court

costs, attorney’s fees, and ex penses incurred in the criminal proceedings. If a wrongfully incarcerated person could get the same compensation through a claim bi ll as he or she can obtain in

a proceeding under chapter 961, but without having to

demonstrate innocence by clear and convincing evidence and despite having other felony convictions, there would be no incentive for a claimant to ever use chapter 961. To preserve the intent of chapter 961, it would be logical and

reasonable for the Senate to pr ovide less compensation in a claim bill for wrongful incarcerat ion, unless the claimant can

meet the same conditions as are contained in chapter 961.

The evidence is now clear a nd convincing that Dillon is

innocent of the murder of Ja mes Dvorak. However, Dillon

has a felony conviction fo r possession of a controlled substance -- a Quaalude (and, apparently, a DUI conviction

related to the same traffic stop). That makes Dillon ineligible

for compensation under chapter 961. In a claim bill

proceeding, it is a routine practice to consider all matters related to the character of the claimant, not just felony convictions. There is no precedent to turn to in considering this issue o

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an appropriate award because this is the first claim bill fo r

wrongful incarceration since t he enactment of chapter 961. I

believe the award proposed in SB 2 (2012) of $810,000 ($30,000 for each year of incarcer ation), plus tuition waivers,

is reasonable under the totalit y of the circumstances.

ATTORNEYS FEES:

Dillon’s attorneys are representing him pro bono . There is

no lobbyist’s fee.

OTHER ISSUES: I recommend the deletion of the “whereas” clauses of the bill

that allege prosecutorial mi sconduct by the BCSO. These

assertions amount to legislativ e findings that crimes were

committed by members of t he BCSO, but there have been

no charges filed, no determinations by a court, and there

was insufficient evidence presen ted to the Special Master to

support these allegations.

SPECIAL MASTER’S FINAL REPORT – SB 2 (2012)

November 1, 2011

Page 10 RECOMMENDATION:

For the reasons set forth above, I recommend that Senate

Bill 2 (2012) be reported FAVORABLY, as amended.

Respectfully submitted,

Bram D. E. Canter

Senate Special Master

cc: Senator Mike Haridopolos Debbie Brown, Secr etary of the Senate

Counsel of Record