After 19 years on death row, hope beckons
Murder conviction of Mass. man voided
By Marcella Bombardieri, Globe Staff, 1/19/2003
For nearly 19 years, Kelley, a thief, bartender, and stagehand from Boston, has lived on Florida's death row, convicted of a hired hit on a millionaire citrus grower in 1966.
Now, he could be about to trade his near-total isolation for the spare bedroom in his brother's Tewksbury split-level, thanks to a federal judge's decision to throw out his conviction. Last fall, US District Judge Norman C. Roettger ordered a new trial, based on ''prosecutorial misconduct'' and the ''deficient'' representation of Kelley's lawyers.
The champions of Kelley's innocence include the victim's daughter and renowned Harvard legal mind Laurence Tribe.
The Florida attorney general has until the end of the month to appeal Roettger's decision. If he doesn't, Kelley will be a free man by February.
To critics of capital punishment, the alleged unfairness of Kelley's trials recalls more than 100 other capital convictions that have been overturned since 1973, prompting serious rethinking of the ethics of the death penalty.
The national debate about executions flared anew last weekend when outgoing Illinois Governor George Ryan emptied his state's death row, commuting the death sentences of 167 convicts to life in prison, and pardoning four death row inmates believed innocent. Ryan, elected as a death penalty supporter, said that ''the Illinois death penalty system is arbitrary and capricious - and therefore immoral.''
Whether Kelley goes free or not, whether he is guilty or innocent, there will never be true justice in the cold-blooded killing of Charles ''Von'' Maxcy, stabbed four times and shot in the right eye in his bedroom in a plot hatched by his wife and her lover.
The record shows that five people participated in planning and executing the murder. Yet only one person, Kelley, has ever seen earthly punishment for it. That outcome still infuriates Maxcy's relatives, who blame stress and depression from the killing for ruining the family citrus business and claiming the lives of Maxcy's mother and brother.
And to those who believe that Kelley is no murderer, the courts have wasted an innocent man's life.
Upon hearing of Roettger's decision - 10 years in the making - Kelley said in a letter to the Globe dated Dec. 21 that he went through a rollercoaster of emotions, then ''pushed away the anger and began waiting each day to be released.''
The saga began Oct. 3, 1966, a steamy night in the citrus growing town of Sebring, Fla. Maxcy's wife, Irene, and her lover, John Sweet, wanted the husband out of the way so they could share his millions. Sweet, a con man and pimp from Boston, allegedly called Dorchester bookie Walter Bennett to arrange the murder.
Two hit men and their female companions drove from Boston to a motel in Daytona Beach, Fla., where they checked in as Mr. and Mrs. Andrew Von Etter and Mr. and Mrs. William Kelley. Sweet later drove the men to Maxcy's ranch, where they left their victim in a pool of blood.
Irene Maxcy soon turned to the authorities, contending that Sweet was threatening her and her daughter, and received immunity to testify against Sweet. His first trial ended in a hung jury. Sweet was found guilty in 1968 in his second, but the conviction was overturned because the judge had not admitted Maxcy's confession that she had a romantic relationship with the case's lead detective.
In 1976, following Sweet's unsuccessful prosecution, the state destroyed all the physical evidence - a bullet, a bloody sheet, and a shred of Maxcy's shirt.
Then, in 1981, when Sweet was facing a laundry list of charges including prostitution, counterfeiting, and hijacking, he worked out a deal in which he would testify about the Maxcy murder in exchange for immunity for all his crimes.
Sweet named Bennett, believed to have been killed in 1967 by Stephen ''The Rifleman'' Flemmi; Von Etter, also gunned down in gangland mayhem; and Kelley, with whom Sweet had crossed paths in Boston in the 1970s.
Kelley, like Sweet, was tried twice, with his first jury deadlocking. Prosecutors introduced the testimony of the motel clerk, who had described ''Mr. Kelley'' to police as ''about 40, 6 to 6'2'' tall, medium build, dark hair (kind of curly).'' Kelley was 23 at the time of the crime, and 6 feet 5 inches tall, with blond hair.
With that dubious identification, the case rested on Sweet's testimony and therefore his credibility. Roettger's decision to overturn the verdict revolved around prosecutor Hardy Pickard's misinformation to the jury about the nature of Sweet's immunity.
''John Sweet did not have to give the police Kelley to get immunity,'' Pickard argued in his closing statement in 1984.
Yet Sweet never would have gotten immunity if he hadn't testified about Maxcy's murder, Sweet's Boston lawyer told Roettger's court in 2001.
Kelley's jury was clearly confused. During deliberation they asked the judge whether ''Sweet had anything to gain by his testimony.'' He responded that he could not answer the question, and the jury returned a guilty verdict.
Roettger listed other evidence prosecutors withheld from Kelley's attorneys, such as the transcript of Sweet's first trial, where Sweet testified that ''I don't know no William Kelley.''
In a second opinion handed down on Dec. 30, Roettger wrote that Kelley's lawyers did not represent him adequately at his 1984 trial. His lead attorney was the flamboyant William Kunstler, who defended the Chicago Seven and other radicals.
Kunstler later testified that he left all the pretrial preparations to two assistants and only appeared for trial. One of those assistants was a disbarred Boston lawyer who handed over a phony witness list and absconded with his fee. The other was Jack Edmund, a Florida defender who testified that ''there was no need for presenting witnesses,'' and ''we really didn't look for them.''
Kunstler and Edmund did not offer a single witness or a single piece of evidence.
Tribe and Texas-based death-row lawyer James Lohman, who both took up Kelley's federal appeal a decade ago, dug up witnesses who testified that another man, now dead, may have been the real culprit. One man told Roettger's court that Steven ''The Greek'' Busias, a Boston underworld figure, admitted to carrying out the hit with Von Etter. Busias's son testified that his father went to Florida in 1966 to do a job for Walter Bennett, and came back with enough money to open a nightclub and buy a new car.
Dissatisfied by the 1984 trial, Marivon Adams, the daughter of Von and Irene Maxcy, requested a meeting with Kelley. ''The way Billy looked me dead in the eye and said, `I'm a thief but I'm not a murderer''' persuaded Adams - just 5 years old when her father was killed - that Kelley had been scapegoated. She now corresponds with him regularly and thinks of him as a friend.
Guy Maxcy, the victim's nephew, was at Kelley's trial, too, but had a different impression.
''We're not stupid enough to say it's just because of a motel receipt and Johnny Sweet,'' said Guy Maxcy. ''You would have had to hear all the testimony. It more than showed that this guy helped do it.''
Indeed, a few details still cloud the picture. Von Etter's wife testified that Kelley had been with them in Daytona. Kelley's first wife, who died of cancer long before his trial, testified at Sweet's trial in 1968 that she'd been at the Daytona Inn with him.
The Florida attorney general's office, which declined to comment to the Globe, argued to Roettger that Kelley's appeal presented ''no legally valid claim for relief.'' Now, they are deciding whether to appeal his order to the US Court of Appeals in Atlanta, a move that could drag the case out for several years more. Should that happen, Lohman said he would ask for Kelley to be released in the meantime, but is unsure such a request would be granted.
If Florida doesn't appeal, Kelley will soon be a free man.
In his letter to the Globe, Kelley, who grew up moving between Roxbury, Dorchester, and South Boston, wrote that his criminal career started when he ran away from his abusive merchant marine father at the age of 11 or 12. At 14, he served on a North Carolina chain gang for breaking into a gas station. He later served several more jail terms for forging checks and breaking and entering. He was running from marijuana dealing charges in North Carolina in 1983 when he was arrested in a Tampa motel and charged with the Maxcy murder.
When he wasn't on the lam, Kelley also worked as a stagehand and in construction, waterproofing, and bartending in Boston and Brockton. Despite his criminal record, family and friends think of him as the fun and caring guy who'd sing tunes from ''The Sound of Music'' or ''Oklahoma!'' - mostly off-key.
''He's an awesome stepdad. He pretty much treated you the way you'd want to be treated,'' said Vincent, one of Kelley's stepsons, who asked for his last name to be withheld because his employer does not know about his family history. Kelley was married to Vincent's mother until his death sentence, when he told her she shouldn't waste her life waiting for a reprieve that might never come. They still write to each other.
All of Kelley's family has stood by him, including his daughter and his brother, Bob Kelley, a retired salesman who wants Billy to live with him in Tewksbury if he gets out. Maybe they'll start a sub shop together, Bob Kelley said.
In response to questions posed by the Globe, Kelley wrote that the support of loved ones is what has made it possible for him to weather 19 years on death row. Still, he sees few friendly faces. He told his daughter to stop visiting him years ago because it was too expensive to fly from Boston, and they agreed they didn't want her two sons to know that he's a convicted murderer. She sends him pictures of the boys and their school report cards.
Kelley can only leave his tiny cell, with no desk or chair, three times a week to shower and twice a week for two hours of exercise. He reads case law, magazines, and novels, watches television, and writes a lot of letters.
''I used to wonder how this could happen to me. Then one day I realized this didn't just happen to me, it happens to thousands of people,'' Kelley wrote. ''I feel very bitter and angry at times over what was done to me, but I always push that anger out of my system. I didn't want to end up being some hateful nut case.''
This story ran on page B1 of the Boston Globe on
1/19/2003.
