Fatal Flaw

two alternates.  Tommy Zeigler's jury of his peers was composed of three men and nine women, six black people and six white.  It was not the panel Hadley and Robertson wanted.  But it was the best that they could do.

it Q-71.1  At the FBI Lab it became Q-99.  At trial the slug was marked for identification as item VVV, and became State's Exhibit 117 when it was admitted into evidence.

Identifying evidence and tracing custody is a legal necessity that can become tedious.  The number of state's exhibits reached 171;98 were admitted for the defense.  Many exhibits made multiple stops along the chain of custody and had to be accounted for at each destination along the chain.  Alton Evans eventually testified nine times, for both the state and the defense.  His testimony, dealing almost exclusively with chain of custody, totaled more than 180 pages.  Taken together it would compose nearly one volume of the fourteen-volume trial record. Deputies Harry Park, James Shannon, Toivo Nasi, Robert Gosselin, and John Fisher all testified on collection and custody of evidence, as did defense investigation Gene Annan and each forensics expert on both sides.

In all, nearly 500 pages of the 2,800 page trial record are devoted to this kind of procedural housekeeping, or to the minutiae of forensic evidence.  It is difficult to follow even in printed form.  At trial, it must have been beyond the comprehension of the most alert jurors.  Most of that testimony did not bear on Zeigler's guilt.  But, combined with the lengthy and often complicated opinions of the experts, it served to lend gravity—importance by virtue of sheer mass—to the fingerprint cards and the dry blood samples and the firearms and the clothing and the swatches of carpet and the lead slugs and the ammunition and all the rest that eventually filled two large tables.

In the midst of these formalities, Eagan built the state's case.

Jack Bachman, the state attorney's investigator who happened to have been at the scene on Christmas Eve, introduced a detailed model, which he had built by hand, of the furniture store and its surroundings.  Both the prosecution and the defense used the model for reference throughout the trial.

George Daniels, the manager of the TG&Y store, testified about the arrangement of lights on poles in the parking lot of the Tri-City shopping center, across Dillard Street from the furniture store.  These lights, shining through the display windows in front of the store, provided much of the illumination by which Edward Williams, so he said, had seen Tommy Zeigler holding a revolver.

Lynn Churchwell, the nurse who cut the clothes off Zeigler in the emergency room at West Orange Memorial, testified somewhat out of sequence because of scheduling problems.  She said that she saw "markings, some black markings, and

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1    It is standard investigative procedure to designate unidentified specimens by a Q number.  A Q specimen is a "questioned" item Evidence of known origin, such as liquid flood samples drawn from a body, are "known" items and are given a K number.  In the Zeigler case, the FBI Lab changed the numbering key because several of the state's K numbers actually were questioned items.  This caused some confusion, especially for the defense, which was not supplied the revised key system until late in discovery.

He said that at the hospital, when he asked Zeigler who had shot him, the answer was "Charlie, Charlie Mays."

Thompson described how he entered the dark store with Yawn and Ficke and the two volunteers, looking for Mays.  Shown photographs of the bodies that the OCSO took later that night, he said that he could not remember Mays's pants being down, and that he had thought that Perry Edwards's head was turned in the opposite direction.

Under cross-examination, he said that he believed some of the light switches were in the "up" or "on" position when he and Yawn began flipping them to get lights.  He agreed with Hadley's description that the blood around the entrance and exit wounds was "somewhat caked" and "dry or almost dry."  He was certain that Zeigler, in the emergency room, had mentioned that full name of his assailant: "Charlie, Charlie Mays."

Q (HADLEY): At the time you were trying to ascertain what happened to Mr. Zeigler, Chief, did he speak some names to you that were unfamiliar to you?

A (THOMPSON): I didn't recognize any names per se.  The only other name I heard mentioned was Don.  Don's plant, Mama and Daddy's Christmas present, and the things of this nature, which were kind of babbling.  At this point I discontinued trying to ask him anything and hurried back to the store.

Q: Chief, so you recall on January 12, 1976, giving a statement at 11:20 A.M. to the state attorney's office in Orlando, Florida?

A: I remember giving a statement, yes, sir.

Q: I am going to read a portion of that statement and ask you if you recall making that statement, sir. "At this point Mr. Zeigler began to mumble about Don's plants.  Don Ficke's plant at the store.  I didn't know what he was talking about.  Mommy's and Daddy's Christmas present at the store, and then, he mentioned several names that were unfamiliar to me."  Do you recall giving that statement, sir?

A: Yes, sir.

Q: Did you make any note of the names Mr. Zeigler mentioned that were unfamiliar to you?

A: No, sir, I didn't, because the whole gist of the statement at that time appeared to be rambling and incoherent and I couldn't understand them plainly and I just assumed that he was confused and I left.

Q: You were asked on page fifteen of your statement, "Chief, did you get the impression that the people he named were back in the store also?" 

Answer: "No, I got the impression that they may have been people involved.  I just don't know who they were."  Do you recall making that statement, sir?

A: No, sir, I don't remember.

Q: It was on examination by Mr. Eagan.

A: May have.

Q: (HADLEY):...Is it accurate to say that Mr. Mays was in this position, either as to the crank or to his pants, at the time you observed him?

A: (YAWN): That would be-that's not the state that he was in when I observed him.

Q: Okay.  This picture is inaccurate as far as his position had changed between the time you observed him and the time it was taken?

A: Yes.

Following Yawn, Barbara Spencer Tinsley2 became the only witness to describe what may have been the gunfire on Christmas Eve. Questioned by Eagan's assistant, Steve Thacker, she said that she arrived at her parents' house, which was west of the furniture store, at about 7:10 that evening.

Q (TRACKER): Upon arriving at your parents' house, Mrs. Tinsley, what transpired?

A (TINSLEY):...It was maybe approximately twenty-five after, right in there, and I heard a set of what I thought at the time was firecrackers.  There was maybe three or four of these explosions and I commented on it at the that time to my daughter who was there also and about fifteen minutes later I heard another set of these explosions.

Q: With regard to the first set of explosions you heard, were you able to determine from what direction they were coming?

A: Yes, sir.  They would have been coming from the east because my mother had the front of the house closed up and the back window open which I was sitting at in a chair and the window was to the east and it was very loud....

Q: Are there houses in between the back of your house and the furniture store?

A: There are some there, sir, but they are not in line, you know, they are sporadic so there is open space there.

Q: With regard to the first set of explosions you heard, approximately how many explosions did you hear?

A: Three or four.

Q: Okay.  And you say this was approximately how long after you first arrived?

A: I'd say between ten and twelve minutes.

Q: And with regard to the second set of explosions, how long after the first set did they come?

A: It was about fifteen or twenty minutes after that.

Q: And do you recall now approximately how many explosions you heard on the second occasion?

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2 She had married since Christmas Eve, and had taken her husband's name.

Thirty-three

Tom Delaney was going to testify out of turn. As a defense witness, he should not have been heard until after the prosecution rested.  But he was not subject to a subpoena.  He could testify for the defense only through an arrangement with Eagan and the FBI, and this was the day when he had been made available.

He had arrived in Jacksonville the evening before. Thursday morning.  Hadley met his star witness for the first time.  Hadley and Vernon Davids briefly reviewed his testimony, and the court was called to order.1

His direct testimony was succinct.  He said that he had made footprint tests or examinations in a thousand or more cases.  Comparing Zeigler's shoes to one of the  photographs of the bloody footprints-Defense Exhibit 1-he had found some general similarities, but not enough to make a positive identification.  Comparing the shoes to a second photograph.  Defense Exhibit 2, he found that Zeigler's shoes did not make the print.  The bloody print showed a border around the edge, Zeigler's shoe did not have that border.

Eagan asked Delaney if he had used liquid blood in making his comparisons. Delaney said no, that his usual method was to press the sole of the shoe on an inked pad, and then make a print of the sole on a piece of onionskin paper, which he could place on the photograph of the unidentified print.

Eagan finished his cross-examination, the defense had no redirect, and Delaney was excused.  He left the courtroom.

Eagan now called Mattie Mays to the stand, but then told Judge Paul that she had not arrived from Orlando.  He asked for, and was granted, a ten minute recess to prepare another witness.

The witness was Herbert MacDonell.  The professor began by describing the work of a criminalist, and his own background and qualifications.  He said that in the case at hand he had examined the store, studied OCSO photographs, and made his own photos.

Eagan asked the clerk for Zeigler's shoes in evidence and the two photographed prints that were now Defense Exhibits 1 and 2.  MacDonell said yes, he had tested the shoes to compare them to the photographs.

"Was that to determine whether the shoes...made the prints in the photographs?" Eagan asked.

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1   Hadley now says that years after the trial, he learned that Bob Eagan had met with Delaney, after he arrived on Wednesday, in an attempt to shake his testimony, but that Delaney would not budge.  This would have made an excellent point on rebuttal, but Delaney never mentioned the meeting to Hadley.

HADLEY: I'm anticipating the state didn't like the results of their expert [Delaney] so they have gone to another one and without advising us that the tests had been run or the nature of the results....Therefore, we do object.  We claim surprise and feel that it would be substantially prejudicial.

JUDGE PAUL: Well, I don't know how you can hold the state to fault if they have no reports and that they do, I assume, have ongoing investigations, which evidently is what happened here, right?

EAGAN: Yes, sir.

JUDGE PAUL: I have no knowledge, I have read his deposition, as you know —

HADLEY: Yes sir.

JUDGE PAUL: —at your request.  And I don't think your objection is a well-founded objection to that portion of it.  I overrule it.

MacDonell began to testify again.  He said that he had "examined "Zeigler's shoes on May 12—the morning before this deposition to Hadley and Davids.  He said that the inked impressions he had made did not constitute testing, as Hadley had phrased the question during the deposition.

MACDONELL:...I examined the shoes and compared them to the prints, Defense Exhibits 1 and 2.  I then made replicas of the shoe patterns using printer's ink, ordinary fingerprint ink.  This was a secondary choice to using human blood since the medium in the photographs is apparently blood....I wanted to use blood and did later last week when I was down.  I took the ink impressions or prints, rather, back to my laboratory.  I did not have an opportunity to examine them prior to the deposition and, therefore, was not withholding any information.  I simply hadn't made prints or latent comparison.  I went back to my laboratory and spent several hours comparing the prints that I had from the two shoes...to the photographs of the evidence on the floor of the furniture store.  I then last week repeated the same tests by making prints in human blood....These were made in the crime laboratory in this building.

Hadley and Davids were stunned.  They realized for the first time that MacDonell's deposition had been delayed on May 12 because he had been examining the shoes, and making the new inked impressions.  Now MacDonell obviously was about to refute Delaney's conclusion that Zeigler had not made the bloody footprints in the store.

HADLEY:...We would object to the introduction into evidence of those items that were not furnished to the defense pursuant to discovery, the ones on May 12th or the ones that were prepared last week....We would claim surprise and would claim prejudice.

 JUDGE PAUL: Anything further, Mr. Eagan?

EAGAN: No, Your Honor.

JUDGE PAUL: Did you say earlier, Mr. Eagan, that those reports were furnished to the defense or were available?

EAGAN: The only report that I have obtained from Professor MacDonell was furnished Counsel, Your Honor, prior to their taking his deposition.2

 HADLEY: Your Honor, that is correct.  We have a complete report on Professor MacDonell which was given to us by Mr. Eagan prior to taking his deposition. However, these matters were not covered in the report or the deposition....We have never been furnished with either the ink prints that he made or the bloody ones that he intends to testify to today, and that's what we object to....

JUDGE PAUL: It appears from everything that has been said that the state has compiled with the discovery rules as it became known to them.  Mr. Hadley, I overrule the objection and will permit him to testify on these areas.

MacDonell's testimony was poised and thorough.  He said that the first of the two photographed footprints from the store shared several characteristics with Zeigler's shoe, but that he could not make a positive match.  This was also Delaney's finding.  But on the second photograph, the two experts disagreed.  Delaney had said that Zeigler’s shoes did not make that print; MacDonell said that he found "great similarities with an apparent individual characteristic" between the photographed footprint and his test print to blood, although he could not say positively that Zeigler's shoe had made the print in the store.

Eagan interrupted MacDonell's testimony to put on William Tobin—another FBI examiner with a scheduling crunch—who found that the store clock had been in working order when its works were jammed by a bullet that passed through the wall.  But he could not say whether the clock was running at the time—that is, whether there was any electricity in the line.

Then MacDonell resumed.  He noted that the left underarm of Zeigler's white T-shirt showed both soaked-through stains and "transferred stains," where another bloody garment apparently had brushed it.  They had not been caused by anyone

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2    A document found in the state attorney's files in 1991 seems to contradict the assertion.  The one-page paper captioned "Points of Testimony of Professor Herbert Leon MacDonell" enumerates eight of the professor's findings, including a discussion of the bloody shoe print and other observations that do not appear in his official report.  This one page document, apparently written by MacDonell, was never released to the defense.               A document found in the state attorney's files in 1991 seems to contradict the assertion.  The one-page paper captioned "Points of Testimony of Professor Herbert Leon MacDonell" enumerates eight of the professor's findings, including a discussion of the bloody shoe print and other observations that do not appear in his official report.  This one page document, apparently written by MacDonell, was never released to the defense.

*

That evening, Hadley and Davids realized that they had erred in accepting a half-hour conference with MacDonell during the recess.  An appeals court might construe the conference as a fair remedy of the state's failure to disclose the tests and the results.

Half an hour had not been nearly enough, and it showed in their cross-examination of MacDonell: they knew nothing about testing footprints.  Were there any other differences between using ink and blood for the test prints?  Could a print be altered by varying the amount of blood and the pressure applied to the shoe? If so, did MacDonell try to simulate Zeigler's weight in making the test prints?  Did he try to duplicate the temperature and humidity inside the store?  Wasn't the paper MacDonell used for the print actually more porous than the terrazzo floor?

Thirty minutes was nothing.  They had needed days.  They had needed to find an expert, get answers to these questions and others before they would have a chance of seriously challenging MacDonell's results or at least his methods.

The day had been a disaster.  MacDonell's virtual impeachment of Tom Delaney's testimony was especially effective because of the sequence.  MacDonell, as a prosecution witness, would ordinarily have taken the stand before Delaney.  But his erudite testimony, coming minutes after the FBI expert, was crushing.  If Delaney had belonged to any other crime lab, he would have been available for recall, to defend his work.  But with Delaney beyond reach in Washington, MacDonell's damaging conclusions would go unchallenged.

A: Right.

Q: What about other people?

A: Well, they have to testify to that, not me.

Q: But you did not preserve that evidence?

A: No, I did not.

 Q: Because it was of no value to you?

 A: That's correct.

*

Once again Felton Thomas pointed out the man who had driven up while Mays and Thomas sat in the van in the motel parking lot on Christmas Eve.  The car "looked like a Cadillac," Thomas said.  The man he pointed out was Tommy Zeigler.  His story under direct examination remained the same: the trip to the orange grove, Zeigler's attempted break-in at the store, the trip to what apparently was Zeigler's house, the trip back to the furniture store, where Thomas ran away after watching Charlie Mays enter the front door with Zeigler.

Thomas said that he had met Mays that night "after 6:00."  It was dark, he said.  This became the first major point that Hadley covered in cross-examination.  In his deposition, Thomas had testified that "it was starting to get dark" when Mays drove up in his van.

"Is that correct?" Hadley asked now.

"That's correct," Thomas said.

Hadley asked Thomas what path Mays took to the motel parking lot. Again Thomas traced a route through the concrete block wall behind the Tucker Buildings.  Hadley ended his cross there, convinced that the wall had put a significant dent in Thomas's credibility.

*

Edward Williams was the first witness after the lunch break.  He told the story that he and Hadley had covered twice before under oath. Williams added some new details to the key moment when he claimed that Zeigler had tried to kill him in the back of the showroom: he said that Zeigler had held the gun to his chest when he pulled the trigger, and that when the hammer fell three times "I stopped for a couple of seconds, I was so scared....I ran out the door."

Mostly Williams used the same words and phrases—snap, snap, snap...Please don't kill me, Mr. Tommy...Edward, if you don't go in there you're going to frame me—that by now were familiar to anyone who had followed the case.

Fried Chicken was not a public phone and that he did not have a dime to use a pay phone.  He said that he had stayed with this truck from 7:28, when he arrived at the Zeiglers' home, until he drove to the store with Tommy.

Eagan had no redirect: a sign that Hadley's cross-examination had done no serious damage.  Edward Williams walked out of the courtroom, having testified for the last time.

*

The day and the week ended with the brief testimony of six witnesses.  John Grimes, the seventeen-year old clerk at the Kentucky Fried Chicken, said that on the night of Christmas Eve, a frightened black man came into the restaurant and asked to call the police. Grimes testified that he told him that the number was in the front of the phone book, and the black man made a call that lasted about two minutes.  Grimes said that he did not overhear the conversation, and that as far as he knew, no police cars had arrived across the street.

Grimes was a necessary witness for Eagan.  The jury had to hear some corroboration of Williams appearance at the restaurant.  For the prosecution's purposes, Grimes was the best choice of a bad lot, since he was vague about the time that Williams arrived; all the other possible witnesses placed Williams at the store after 9:00.  But Grimes was not without a price for the prosecution.  Hadley's three questions on cross-examination brought out his testimony that Williams was wearing a brown jacket or sweater.

James Lee Bryan, an Orange County deputy, described how a work party of jail trusties had recovered the bullet from the grove south of Route 50, where Felton Thomas said that Zeigler had taken him and Mays to shoot pistols.

Fred Crawford, a firearms dealer (and brother-in-law of Zeigler's cousin Connie Crawford) testified that he had sold Tommy the .22 Beretta pistol that had been found, unfired, in the office desk drawer.

Two uniformed OCSO officers, James Pearson and Frank Hair, described the puzzling sequence at the back gate of the fenced rear compound when Pearson found the gate locked and Hair, moments later, found it open.  This incident occurred shortly after police arrived at the store on Christmas Eve.  Pearson said that he inspected the lock, but he admitted to Hadley that he might have been mistaken about whether the gate could be opened.

Finally, Alton Evans gave brief chain-of-custody testimony about the orange grove bullet, and Judge Paul recessed for the weekend.

Attorneys at a jury trial usually try to end the day on a high note, to give the jury some favorable evidence to ponder until the next session.  By that standard, and by any other, the day belonged to Robert Eagan.  the overwhelming impression was Edward Williams's story of an attempted murder in the dark

Thirty-five

The third week of the trial began on Monday morning, June 21. Ray Ussery, the owner of Ray's Bait and Tackle in Winter Garden, testified that a clerk in his shop had sold Tommy Zeigler the Securities .38, the Smith & Wesson .38, and the Colt .357 magnum that now were in evidence.

Ussery first testified that the transactions took place on January 9, 1975.  He said that he himself was busy at the time—"I was in and out, but I did know the transaction was transpiring"—so a clerk made the sale to Zeigler.

Ussery also identified the two empty pistol cartons that were found bagged with bullets and empty cartridge hulls in the store-room cabinet.  They belonged to Zeigler, he said.  He could identify them because each gun carton was marked with the serial number of the firearm it originally held.  According to Ussery, the original pistols from those two boxes were sold to other customers in 1972 and December 1974.

Q (EAGAN):...On the day that Mr. Zeigler made his purchase, sir, do you recall any matter concerning gun boxes?

A (USSERY): Well, the best of my knowledge, when we sold the two guns in question [the Smith & Wesson and the Colt] there was no box available at the time in the case or near the case.

Q: Do you have a place where you accumulate these boxes?

A: And Mr. Zeigler wanted a box to put the gun in, so Mr. Walker, the guy working for me, produced two boxes at random that we had thrown back or put on a shelf someplace that the people-the other two parties did not care for when they bought the guns, they just threw them back, and he [Zeigler] did want the boxes to carry the guns in.

Hadley showed Ussery that the firearms transactions slips for Zeigler's purchases were dated October 31, 1974, beside Ussery's signature.  Ussery called the discrepancy a "clerk's error."

Hadley asked again about the empty cartons that Ussery connected to Zeigler.

Q: (HADLEY): As I also understand your testimony, although Mr. Zeigler did get some boxes, you cannot state positively that these are the boxes he got, can you?

A: (USSERY): Yes, I can, because I have a record of the people we sold—the gun was sold to.

A (SMITH): Edward Williams came to my apartment that morning.

Q: Right. That's what I'm trying to get at.  Was it Edward Williams and he made a telephone call?

A: Yes.

Q: He dialed the number himself?

A: Yes.

Q: Did you see the number he called?

A: No.

Q: Do you know what that number was?

A: No.

Q: Now, at that time and the placing of that telephone call, had you ever met Tommy Zeigler?

A: No.

Q: Had you ever talked to him?

A: No.

Q: Did you know at that time what his voice sounded like?

A: No.

Q: So, then would it be a fair statement, Mr. Smith, that you have no way of personally knowing that was Tommy Zeigler you talked to on the telephone?

A: Yes, that would be a fair statement.

Mary Ellen Stewart was the state's last witness with personal knowledge of what happened on Christmas Eve.  In her brief direct testimony, she told Eagan that she had been a customer of the furniture store for about three years, and that in April or May she had called Zeigler when she fell behind on some payments.  The next day, she said, she had returned a call from Zeigler.  He had told her that he was interested in buying some illegal guns, to circumvent a supposed new law that would prevent the sale of handguns.1  At that time he had asked her about "Smitty"—her son-in-law, Frank Smith.

She also confirmed that Edward Williams had come to her home late on Christmas Eve, that he had been very upset, and that he had made several telephone calls.  She did not remember when they had left her home to go to the sheriff's office.

Hadley tried to establish a motive for her unfavorable testimony against Zeigler, asking her about an incident in 1975 when Zeigler and Curtis Dunaway went to her home and tried to repossess some of her furniture; she told Hadley that Zeigler had tried to take pieces that she had bought elsewhere.

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1   No such law ever existed.

Thirty-six

It is a measure of the state’s physical evidence that Robert Eagan's opening and closing statements referred mostly to untrained witnesses whose personal testimony tied Zeigler to the crime.  Edward Williams and Felton Thomas directly incriminated Zeigler.  Mattie Mays, Frank Smith, and Thomas Hale implicated him by easy deduction.  The accuracy of their stories might be argued, but not their significance.  The accounts they gave under oath were incompatible with any theory of Zeigler's innocence.

That could not be said of the forensic testimony.  Much of it, including the FBI's blood work, was so sketchy as to allow almost any construction of the facts.  Some, like the ballistic evidence, was thorough but meaningless: the results might show which gun had fired a given bullet, but gave no clue to who had pulled the trigger.

The fact that the crime scene was a public place complicated the fingerprint work and the hair-and-fiber analysis.  Zeigler's fingerprints were to be expected in his own store.  An FBI expert found a variety of Caucasian and Negroid hairs on the clothing of the victims, but these could have fallen from any of the dozens of people who walked through the store on Christmas Eve alone.  (Similarly, hairs from the Zeiglers' cats were found embedded in the blood on Charlie Mays's sneakers.  But Tommy was at the store every day; hairs from his cats could have been anywhere on the floor.)

Still, forensic testimony-some from defense witnesses, most called by the state-consumed many hours in the courtroom.

William Gavin, the FBI serological expert, followed Mary Ellen Stewart to the stand and used the entire afternoon session of June 21 to testify to the blood findings that had disappointed the prosecution when they were first released.

Gavin's testimony was most notable for his explanation of why he chose not to subtype the dry blood specimens.  He explained that dry samples more than two weeks old are not suitable for subtyping because of the danger of false results.  He said that he received most of the samples from Alton Evans and James Shannon on December 29, but that other examinations of the evidence (in ballistics, among others) had to be completed before he began his work.  "The items of evidence were to be examined prior to my examinations for blood" was how he put it.  He said that by the time he received the evidence back, the blood was too old to be subtyped.

This did not resolve the controversy. OCSO technicians had collected much of the blood evidence on swabs and filter papers that required no other tests.  Yet

Platt also testified to the result of the gunshot residue tests on the hands of Charlie Mays, Virginia Edwards, and Perry Edwards.2  The residue on Mays's hands indicated that he had fired a gun.  The residue on Mrs. Edwards's right hand could be explained by powder tattooing from a gunshot wound on her right hand.  (Frye believed that she was holding her hands to her head when she as executed at close range.)

But the distribution patterns of the residue on Perry Edwards's hands strongly suggest that he had handled or fired a weapon.  That, in turn, suggested that the sequence of the murders was far more complex that the reconstruction of Fry or Herbert MacDonell.

Thomas Gerald Ford, a dentist with forensic training (and a nephew of the incumbent U.S. President), examined the tooth found along the north wall at the rear of the showroom.  He said the tooth was from the upper left of a human jaw, "middle weight, middle-aged, most probably a black individual."  This described Charlie Mays, and it was consistent with the empty socket in Mays's jaw.

Hadley gave Ford a crime scene photograph of Mays's corpse.  The photo showed a loose tooth on his blue hooded sweatshirt.  Ford had studied the enlargements of the photo.  He told Hadley that the tooth in evidence, which he held in his hand, "is not the tooth on that parka."

Don Frye appeared for brief, mostly inconsequential testimony the morning of Wednesday, June 23.  He testified about the handwritten consent form Zeigler signed on Christmas morning, and about driving the routes that Felton Thomas and Edward Williams described in their statements.  This testimony was mostly for the purpose of introducing an aerial photo of Winter Garden with a plastic overlay that traced the routes in two colors.

This device would help to clear up the potentially confusing testimony about the various trips around town.  Frye did not present his time-line study, with good reason: strong defense testimony would show that Williams did not appear at the Kentucky Fried Chicken until after 9:00, a time that was awkward for the state's reconstruction of the crime.

Eagan wrapped up his case shortly before the noon recess on the 23rd.

George Henry, the insurance agent who had sold Zeigler one of the two $250,000 policies on Eunice's life, had testified late Tuesday. Now the other agent, Russell Courtney, filled in details of the second large policy on Eunice's life.  The two agents' testimony was that neither was aware of the other

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2   Neither Edward Williams nor Felton Thomas was tested.

Thirty-seven

Exactly six months from the day of the murders, on the morning of Thursday, June 24, Terry Hadley opened his defense with a quick succession of witnesses.

His first was Kenneth Walsh, a meteorologist, who fixed sunset on Christmas Eve at 5:35, with full darkness beginning at 6:02.

Boyd Holt, a Winter Garden barber at whose home Edward Williams claimed to be working on Christmas Eve, testified that he gave Williams $20 on he afternoon of the 24th. This agreed with Williams's testimony, but Holt added that the money was a loan, and that Williams did not tell him that he had worked that day.  The testimony was insignificant.

Mary Wallace, the manager of the Winter Garden Village apartments, where Williams had rented a unit on December 23, said that he stopped outside her office and spoke to her for five or ten minutes on the evening of Christmas Eve, as he was leaving the complex.  (Williams had testified that he spoke to nobody when he left the apartment.)  She said that he was dressed in khaki trousers and a light brown jacket; she placed the time at about 7:00, then claimed that it was after sunset, but before full darkness, which would be as much as an hour earlier.  Eagan did not cross-examine.

Wallace was followed to the stand by Tommy Zeigler's cousin Connie Crawford, who testified that she and Hadley had run a time trial between the Winter Garden Village complex and Temple Grove Drive.  The time from Williams's apartment to the Zeigler house was two minutes and forty seconds.  The object of this testimony was to impeach Williams's statement that he had gone straight from his apartment to Temple Grove Drive, where he arrived at 7:28.  Obviously this was impossible if Williams left the apartment before dark, as Mary Wallace testified. But Wallace's first statement, that she saw Williams around 7:00, confused the issue.

Lee Jones told of seeing two cars, including a dark automobile, parked in front of the store at 7:25 on Christmas Eve.

Patricia and Richard Smith repeated the story they had told under oath to Don Frye and Lawson Lamar in early January.  Both agreed that at 7:57 they saw two cars, one very dark and smaller than the other, parked in front of the furniture store.  Patricia Smith said specifically that neither car was the Dunaway Oldsmobile.  Her husband said that the larger, lighter-colored car was possibly two-toned, darker on top than on the bottom—the reverse of the color scheme of Dunaway's car.  Richard Smith also testified about the scene at the hospital on Christmas Day, when Zeigler wept after hearing that Eunice was dead.

She testified that she and her husband watched one of the cars leave—Thompson taking Zeigler to the hospital.  Then she and her husband noticed Ed Nolan in the front door of the Kentucky Fried Chicken, and they crossed the street to the restaurant.

Q: Okay.  And what happened when you go over there?

A: We motioned for his brother.  He was inside.  We told him something—we motioned for him to come out.

Q: All right.

A: We told him something had happened at the Zeigler Furniture Store.

Q: Right. And what happened next?

A: A colored man come up and asked to use the phone to call the sheriff's office.

Q: That was after the police had arrived at the W. T. Zeigler Furniture Store and carried the man that you saw out the front door?

A: That was happening at about the same time.

Q: Okay.  This happened and then after you saw this at the Zeigler Furniture Store, the police arrived and the man came out the door, then you went to the Kentucky Fried Chicken?

A: Yes.

Q: And it was then that this black gentleman you described came up and asked to use the telephone?

A: Yes.

Eagan had no questions. Hadley now brought Madelyn's husband, J.D. Nolan, who described the near-broadside with Jimmy Yawn's unmarked police car as they approached Route 50 on Dillard.  Nolan said that he made a U-turn and pulled into the front lot of the Tucker Buildings to see what was happening.  He watched Thompson drive away with  Zeigler.  Then J.D. noticed his brother in the door of the restaurant.  He crossed the street and spoke to him.

A (J.D. NOLAN): ....I said, "There is some trouble going on over there, I don't know what it is." and I told him abut the guy that liked to hit me and I went up there.  About that time, I say it couldn't have been like four or five minutes, I say a short time, the colored guy come up and asked to use the telephone.  I said, "I don't know because the place is closed."

Q (HADLEY): Now, could you describe this gentleman, build, age, and this kind of thing?

A: Well, I'd say probably he is around—I'd just rough guess like fifty or fifty-five years old, might be a little bit older or a little bit younger.  I didn't pay that much attention, but he was kind of an old fellow.  I would say probably about my age, but he must have been roughly, I'd say, weighed about a hundred and

Q: This occurred after the car bad been running—I mean the truck had been started and running for a long period of time?

A: Yes.  He would have more problem when it was hot, had been running.

Hadley now admitted to Judge Paul that he was out of witnesses. Paul recessed until noon.  After lunch, Alton Evans, a sheriff's deputy, gave chain-of-custody testimony for several items that the defense introduced into evidence.  Then Gene Annan and Ernest Crawford—the husband of Zeigler's cousin Connie—testified about a visibility test they performed in the store.

This experiment was similar to the one that Frye had tried with Denny Martin, testing whether Edward Williams could have seen a pistol in Zeigler's hand when he entered the showroom.  But there were a couple of important differences.  Annan, playing the part of Williams, did not allow his eyes to adjust to the darkness inside the building as Frye and Martin had.  And Crawford, standing where Williams said Zeigler had clicked the pistol at him, held three different objects—a can of spray paint, a vacuum cleaner attachment, and a chrome-plated flashlight—as Annan came down the hallway three times.

Annan testified that parking-lot lamps at the Tri-City shopping center did throw some light into the store, but that the kitchen partition created a shadow where Williams claimed Zeigler was standing. Annan said that in three tries he could not make out what Crawford was holding in his hand.

Hadley was barely an hour into the afternoon session when he told the judge that he had no more witnesses for the day.  The testimony had gone much more quickly than he had planned.

Judge Paul recessed until the morning.

It was mixed bag of testimony for the defense: sixteen witnesses, some important and others almost trivial, all of them quickly on and off the stand.  Among them were J.D. and Madelyn Nolan.  Their testimony, by inference, directly refuted Edward Williams at the most critical point of his story—that is, his account of the events at the furniture store that supposedly caused him to run away and try to call the police.  There was no innocent explanation for Williams's arriving at the restaurant after Zeigler had already left for the hospital.

Whether the jury understood that implication or whether the Nolans were just simply lost in the fast shuffle of witnesses may never be known.  Whether the defense team itself completely grasped the significance of the Nolans' testimony is arguable.  But the fact is that the most important independent testimony in the trial, the potential centerpiece of the argument for Zeigler's innocence, had quickly come and gone within the first morning of the defense's case.

Hadley indirectly alluded to the testimony of Ruby Lee Ross, the FBI fingerprint expert who had destroyed the prints from the .357 magnum revolver because they had fewer than seven points.

Q: Now, Mr. Truby, have you ever, in working on a case, developed prints and then destroyed them if they had less than seven points?

A: No, sir.  I keep them in my files?

Q: You keep all the prints you develop, don't you?

A: Until I eliminate them or identify them, yes.

Q: And even if you consider them of limited value you keep them, don't you?

A: Yes, sir.

Q: Such as the ones on the tissue in this case, is that not correct?

A: Yes, sir.

Q: The first photographs you developed were of limited value, weren't they?

A: Yes, sir.

Q: But you nonetheless kept those prints?

A: Yes, sir.

Q: Do you consider it good practice to destroy prints just because they merely are of limited value, sir?

A: I don't personally consider it good practice, sir, and I don't do it.

Again the pace of testimony was rapid.  For the second straight day,  Hadley ran out of witnesses early in the afternoon.

But the court had business out of the hearing of the jury.  One juror, a black woman named Johnestine Young, had told Judge Paul in a note that her long-planned group vacation to Canada was now a week away; she would lose a $400 deposit if she didn't take the trip as scheduled.  Eagan and Hadley conferred with the judge, and they all agreed that she should be excused if there was a chance that her attention might be elsewhere.

The first alternate juror, who would replace her, was a young white college student named James Roberts.  In voir dire he had struck Hadley and the

Thirty-nine

Though “reasonable doubt” is the legal requirement for acquittal in the criminal trial, Hadley believed that he needed to show the jury a convincing hypothesis of Zeigler's innocence.  Bob Eagan's closing statement would surely argue that the state's evidence foreclosed any possibility that Zeigler had not committed the crime.

On one level, Zeigler's own testimony about Christmas Eve would provide an alternative to the state's case: he drove to the store with Edward Williams, he was beaten and shot as he walked into the showroom. The footprint testimony of FBI expert Thomas Delaney, though contradicted by Herbert MacDonell's findings, nevertheless introduced the strong possibility of an unknown assailant.  The "dark car" testimony of Ed Reeves and Richard and Patricia Smith also suggested that someone else, unaccounted-for by the state, had been a part of the crime.

But that evidence implied a deeper question.  What was this crime? Why had it happened?  Eunice and her parents might have walked unexpectedly into an ambush, but Zeigler—guilty or innocent—was there by appointment.  If Zeigler was innocent, then he was the victim of a plot.  Who disliked him so greatly?

On Monday, June 28, Hadley called as a witness Andrew James, the black bar owner whom Zeigler had befriended in the fight to save his liquor license.  Hadley hoped that this testimony might help dispel the image of Zeigler as a man who contemptuously manipulated his black acquaintances.  But he also managed to put on the record the possibility that Zeigler had made enemies of powerful criminal elements in his hometown.

It was an extraordinary scene.  Andrew James began to testify about preparations for the trial in which Judge Paul had been a prosecution witness.  Surprisingly, Eagan did not object to the relevance of this exchange:

Q (HADLEY): Calling your attention to the summer months of 1975, who was your attorney at that time?

A (JAMES) You were sir.

Q: And you and I had a case together?

A: Yes, sir.

Q: Did Thomas Zeigler at that time render any assistance to you?

A: Yes, sir, he did.

Q: Did he aid and assist in your case on obtaining any information ?

A: Yes, sir.

Q: About whom was that information obtained?

"You brought it in," Paul told Hadley.  "I can't limit the cross examination once you bring it in if it's within the scope of cross, and it is."

The jury was seated again.  Eagan, improbably, began a series of questions to identify the people who might have a grudge against Zeigler as a result of the James trial.

Q (EAGAN): You were arrested there in your bar by agents of the Florida State Beverage Department?

A (JAMES): Yes, sir.

Q: And it was against these agents that Mr. Zeigler was going to help you get information that they were protecting loan sharks, is that right?

A: Say that question over, sir.

Q: Who were the agents or law enforcement officers concerning whom this man brought you information? Who are they?

A: Officer Williams was one, on the Winter Garden Police Department.

Q: Of what police department?

A: Winter Garden Police.

Q: The Winter Garden Police Department.  And who was the other one?

A: Agent Baker was one.

Q: Of the Florida Beverage Department?

A: Right.

Eagan elicited the fact that the jury in James's criminal trial returned a guilty verdict.  Hadley, on redirect, established that the judge in the case had withheld adjudication, that James had kept his liquor license, and the Winter Garden officer, Stoney Williams, had later been convicted of a crime.

The value of James's appearance may have been slight for the jury, since Hadley did not develop the revenge theory beyond a few questions. But for students of the record, it presents the remarkable tableau of the presiding judge,  Maurice Paul, listening to testimony that one of "these loan sharks or law enforcement people who are seeking revenge" included the man for whose character he had vouched under oath just one year before.

*

During the rest of that Monday, Hadley brought on a assortment of witnesses who sniped at the state's case.

Rhonda Hull, the ex-wife of defense witness Thomas Hale, testified that Hale was a frequent liar who often exaggerated to make himself important.

Hadley got the same from Sonja Barker, who said that she had known Hale for eight years.

Van Deventer said that he had advised Tommy and Eunice in April 1975 that the wills were not adequate for estate planning, and that they ought to consult with him and an insurance underwriter about life coverage.  Then, he said, Tommy told him in the first or second week of December that he had purchased some insurance.  "He indicated at that time that he had—I believe his terminology was 'beefed up' the insurance provisions, both for he and Eunice, in order to meet the estate tax requirements."

Eagan had hardly challenged most of the eyewitnesses.  But he closely cross-examined Van Deventer, in a manner that the Sentinel Star described as "angered."  Van Deventer admitted that Eunice did not independently own a share of the family corporation, or any of the family's real estate properties; in case of her death, the estate tax liabilities would have been limited.

Over Hadley's objection, Eagan asked Van Deventer about a conversation he had had with insurance agent Russell Courtney at the memorial service for Eunice on December 31.

Q (EAGAN): At that memorial service did Mr. Russell Courtney ask you about this insurance and what your idea—

A (VAN DEVENTER): No, he didn't really ask me, he told me.

Q: What did he say to you?

A: He said that his company had furnished insurance to Mr. Zeigler, both for Mr. Zeigler and Mrs. Zeigler, in the amount of $250,000.

Q: Did you tell  him at that time, either in these words or words to this effect, "Well, I don't know anything about it?

A: My words to him were I did not know it was with his company or the amount.

Q: Did you state to him—I want a yes or no on this, please, sir—"Russell, I didn't know anything about it"?

A: Not in those words, no.

Alton Evans testified that the sheriff's property receipts did not mention Eunice's two diamond rings and two $20 bills, which the defense contended she had with her when she went to the store on Christmas Eve.

Gene Annan presented the photo Thomas Hale had identified as being of the car Zeigler was driving on Christmas Eve; Annan denied Eagan's suggestion that he had hoodwinked Hale into identifying the wrong Oldsmobile.

Late in the afternoon, Hadley presented the defense's forensic expert. Roger Morrison, a former criminalist at the Sanford Crime Lab, was now an owner of the private forensics laboratory where the defense had sent its physical evidence for testing.

Morrison said that hair trapped in the dried blood on Charlie Mays's shoes was consistent with hair from certain of the Zeiglers' cats.  More of the hair was

Forty

Hadley opened Tuesday, June 29, with a request to put the defense's consulting psychiatrist, Allen Zimmer, on the stand.  Hadley was about to attempt an unusual tack for a defense attorney: he wanted to present evidence that his client was too sane and well-adjusted to have committed the crimes.

With the jury out, Zimmer gave "proffer"—that is, a preview of his potential testimony, given with the jury out, so that the judge could rule on its value.

He said he had practiced his specialty for nine years, in Florida, Ohio, Missouri, and California, and that he had been "involved with approximately six to eight thousand personalities of antisocial behavior."  He referred to his four-day psychiatric examination of Zeigler in Orange County Jail.

Zimmer said that the murders in the furniture store were "a heinous crime in any standard and would require an individual who was completely irresponsible and who has no conscience and who has no compassion and who has no awareness of the consequences of his behavior for which he probably has rationalized."  The crime appeared to be the work of a psychopath, he said.

Hadley asked whether Zeigler was a psychopath.

"Tommy Zeigler is not a psychopath.  My diagnosis was that he had no mental disorder," Zimmer said.

Had he found any indication of antisocial traits?

"On the contrary.  I found him to be just the opposite."

Eagan argued that the testimony was incompetent.  Every man is presumed to be sane, he said, and no issue of insanity had been raised.

Hadley answered that by charging Zeigler with such crimes the state had, in effect, put his mental health in question.

Paul denied the proffer: Zimmer's testimony was irrelevant; he would not be allowed to testify that Tommy Zeigler was incapable of committing the crimes.

Alton Evans, on the stand for the ninth time, testified that no money or valuables were found on the bodies of Eunice Zeigler, Perry Edwards, or Virginia Edwards.

Hadley called Tommy Zeigler.

*

Zeigler's voice was quiet, perhaps slightly timid, as he answered some preliminary questions from Hadley about his position as president of the family corporations, and about duties at the furniture store.

A: Because Mr. Henry with Gulf Life told me that I would have to take out a like amount of insurance on myself with Gulf Life.

Q: That was part of the deal with getting a policy on your wife?

A: That's correct, sir.

Q: Now, Tommy, did either you or Eunice tell Mr. Courtney—or what was the gentleman's name from Gulf?

A: Mr. George Henry.

Q: —Mr. George Henry about the other?

A: No, sir, I don't believe so.

Q: Why not?

A: Number one, we weren't asked.

Q: There is a place on the application for it, isn't there:

A: That was never asked during the application.  I'm sure, Terry.

Q: Did the gentleman fill out the application for you?

A: Yes, he did.

Q: Now was there any other reason you did not tell Mr. Courtney about Mr. Henry or Mr. Henry about Mr. Courtney?

A: Both of those men are very competitive and they would have wanted all the insurance.  This is their bag.  This is what they sell.

Q: You were trying to spread it around for community relations purposes?

A: This is correct.  This is what we've always done.

Q: Take your business to as many different people as you can?

A: Yes, sir, and that way you get more customers in your business.

Hadley moved on. Did Zeigler frequently handle the grocery bags around the house?  He did. And what of the white tissue found in the Dunaway car?  The store used white tissue paper inside gift boxes, Zeigler said; he himself often wrapped gifts.  On Christmas Eve, Curtis Dunaway had spread some of this wrapping tissue over the baked goods in the backseat of his car.  These were the pies and cookies that he helped Dunaway to move when they switched cars.

Zeigler next admitted that he had bought pistols, including the chrome-plated Securities .38, from Ray's Bait and Tackle.  But he denied every having seen the empty gun boxes that deputies had found in the storeroom and that Ray Ussery had testified were given to Zeigler when he bought the pistols in October 1974.

Zeigler said that he kept the Securities .38 in the custom truck desk of his pickup.

Q: Did Edward Williams ever enter around your truck?

A: A lot of times.

Q: Now when is the last time you saw that weapon prior to Christmas?

A: Three, four, five weeks before.

That evening, after Curtis Dunaway drove off in Eunice's new Toronado, Eunice took some pots and pans off the stove and got ready to leave with her parents.  They were going to the store, to pick out the recliner for Mr. Edwards, and then to church.  He gave her a set of keys that was identical to the one he carried at his belt, except that it included the ignition key for his pickup truck.  He showed her the key for the front door of the furniture store.

Q: Were the Edwardses visiting you for the holidays?

A: Yes, sir.

Q: Was this your mother- and father-in-law?

A: Yes, it is.

Q: How did you feel about them, Mr. Zeigler?

A: I liked them.

Q: Did you get along with them okay?

A: Yes, sir.

Zeigler said that after Eunice left with her mother and father, he called next door to his parents' house, but nobody answered.

He got ready to meet Edward Williams: their appointment was for 7:00.  At about five or ten minutes after 7:00, he walked through the house turning off lights, then went out to see whether Williams had arrived.

But Williams was not there, Zeigler said.  So he went to his pickup and wrote Williams a note at his truck desk.  The note read, "Edward, I'll be back in ten minutes," and he signed it "TZ."  Then he left in Curtis Dunaway's car.  He started to drive to the local package store for two fifths of bourbon to take to the Van Deventers' party.

He was agitated, he said: "Everything was going wrong, Edward was late, it was going to make me late, I wasn't going to be ready when Eunice came back from the church to go over to the Van Deventer party."

He turned back before he got to the store.  Getting the bourbon would only put him farther behind.  He would have Williams stop by the liquor store when they finished delivering the three gifts: the gas grill for his father, the recliner, and the large potted plant for Rita Ficke.

He turned around near the end of Bay Street, which was the road that ran east, past Temple Grove, to the center of town.  Anyone coming from the east side of Winter Garden would probably use Bay Street.  He did not see Edward Williams coming the other way, yet when he got back to the house, Williams was there in the driveway, and his brake lights were on.

Zeigler said that he parked Dunaway's car in the garage and closed the garage door with the remote control in his pickup truck.  He left the keys in the car.  He did not wipe the car; he did not carry a bag into Williams’s truck.

He walked up the hall and tried the next switch, just outside the hall door, before the showroom  Again the lights did not come on.  He walked through the hall door and into the showroom, and he was hit on the right side of the head.

He fell to the floor.  He lost his glasses, and presumably his keys, because he couldn't find his keys later.

Q: ...What happened next?

A: As I was getting up I saw two blurs coming at me.  I was carrying a .22 caliber Escort pistol, automatic pistol, on my side inside my trousers in a trouser holster.  I drew that weapon, and I don't know whether I fired it or not.  I know that it jammed because I had to eject a shell from it.

Q: And what happened?

A: It jammed again and I threw it.

Q: You say you might have fired it, you are just not sure?

A: I'm not sure.

Q: Do you know how long you were down after you got hit over the back of the head?

A: No, sir, I have no idea.

Q: What happened after you threw this .22?

A: I started flying through the air and bounced off the walls and refrigerator and the shelves that are back in that area.

Q: Did you hear anything?

A: There was glass breaking and things falling.

Q: Now you said you saw blurs.  Was that more than one?

A: There were two.

Q: Two blurs.  Could you tell me about how big they were or anything about them?

A: One,  I would presume, was as tall, if not taller, than I am, and the other one was a shorter individual.

Q: Could you tell whether they were black or white?

A: No, sir.

Q: Did you see anything about them?

A: Just dark blurs.

Q: Dark blurs?

A: Yes, sir.

Q: Was the store dark?

A: Yes, sir.

Q: You are fighting, being bounced off the north wall of the store.  Weren't you afraid, Mr. Zeigler?

A: As I was trying to get up off the floor I was shot.

Q: You were getting up and got shot?

A: Yes, sir.

Q: Do you know how far away the man was that shot you?

A: Terry, I didn't have any idea.  I know it was further away than any six inches, as the FBI stated.

Q: You feel it was further away than what the FBI indicated?

A: Yes, I do.

Q: How did it feel when you were shot?

A: Like somebody slammed a hot poker all the way through you.

Q: Did it hurt?

A: Yes, it did.

Now events were disjointed, Zeigler said.  He was “disoriented and fuzzy."  As he lay on the floor he heard a voice say, "Mays has been hit.  Kill him."  He thought that the assailants left the store through the storeroom.

He lay on the floor at the back of the showroom—for how long, he couldn't say.  He became conscious, and crawled around, trying to find his glasses.  He crawled over a body, but did not know who it was.  He kept picking up Christmas bows as he tried to find his glasses.  Finally he got his gold-rimmed glasses from his desk in the front office.  He went out to the front counter and used the phone there to call the Van Deventer home.  Then he went to the front of the store and sat, or lay, in a lawn chair near the front door.

He said that when the police arrived, he went to the door and found keys in the lock: they were the keys he had given to Eunice that evening.  He didn't know how they had gotten there.

Hadley asked him to point out certain spots on the state's model of the store.  Zeigler got up and pointed out the light switches, where he was first hit, and his office.

He took his seat.  His voice remained steady and firm as Hadley began a final series of questions:

Q: Tommy, Christmas Eve 1975 how did you feel about your wife, Eunice Zeigler?

A: My wife and I were closer and more compatible then than we were when we got married.

Q: Did you love her?

A: Yes, I did.

Q: Mr. Zeigler, did you shoot to death Mrs. Virginia Edwards?

A: No, sir, I did not.

Q: Did you harm one hair on your wife's head, Mr. Zeigler, on Christmas Eve?

 ...

Q: When [Williams] has testified that he walked into that dark store and you turned on him with a pistol and tried to kill him, to drop him there beside Charlie Mays, he is a liar?

A: I did not try to kill him, I did not pull a pistol on him, and I did not try to shoot him.

Q: Would you tell me again why you had Curtis Dunaway turn off all the lights in the store Christmas Eve?1

A: The only lights that I instructed Curtis Dunaway not to turn on were the four hanging displays, two on each side of the front door of the store.

Q: When Felton Thomas testified that you and he and Charlie Mays drove out to an orange grove and fired some pistols out the window of the car, is he a liar?

A: Mr. Eagan, I had never seen Felton Thomas before in my life until the preliminary hearing in Orlando on January the 16th.

Q: I want you to tell me, if you can, sir, how you got all the blood under the armpit of your clothing. Type A blood?

A: The only thing I can tell you is that during the fight I was grabbing everything I could grab ahold to and swinging with everything I had.  That's the only thing that I can tell you.

Q: You can't tell me how you held Perry Edwards around the neck and clubbed him with your right hand as you held him with your left?

A: No, sir, because I did not do it.

Q: Why did you use Curtis Dunaway's car to go to the liquor store?

A: Curtis Dunaway's car was there and it had to be pulled from the dirt drive between the two houses and put in the garage anyway, and Eunice and I were going to use the car that night.

Q: Didn't you tell him it had carburetor trouble and you didn't want him driving it?

A: I didn't stipulate what was wrong with the car.  It had a funny noise.  Curtis doesn't know anything about cars and he was going out of town Christmas Day.

Eagan continued, relentless: How did you get all this A Type blood under your left arm?  I have no idea, sir.  Did you ever get your hands on the derringer?  No sir, not to my knowledge.  You did not snap it twice and reload it?  No, sir, I did not.  Put those cartridges with blood on them in your desk drawer?  No sir, I did not.  Did you drive Curtis Dunaway's car to that orange grove with Felton Thomas?  No, sir, I did not.  You deny that?  I certainly do.  All you had was a

__________________________________________

1    This was not in evidence.

But in a sidebar conference, Eagan said that he would not call this woman.  Apparently she had decided against repeating her information under oath.  "She didn't know what we expected her to know," Eagan told Hadley and Paul.

Instead, he would call Cheryl Clafler, whose incendiary statement to Don Frye not only accused Zeigler of threatening Eunice's life, but also tarred two of West Orange's important public figures.

Hadley asked that the proffer of her testimony be given in the judge's chambers:  "It is just allegations that would do substantial damage to other people's reputation and things of this nature, and also it's just such gross hearsay I didn't see any way it could be in."

Paul ruled that Clafler would give her proffer in open court, but out of the hearing of the jury, as with any proffer.

The proffer was brief, and Eagan was careful to restrict it: "Please listen to my questions and answer me directly," he instructed her on the stand.  Clafler said that she had known Eunice for about a year, and that about a month before Christmas Eunice had told her about problems in her marriage.  Two or three weeks later, she said, she and Eunice spoke again at Ronnie's Drive-In, when Eunice saw Clafler's car and pulled in beside her; at the time, Clafler said, Eunice told her that she was afraid and that Tommy had taken some insurance out on her.

Hadley brought out two aspects from her original statement: that Eunice had planned to meet her parents elsewhere on Christmas Eve, not at her home; and that she had not learned of the insurance until after the first week in December.  Both of these allegations conflicted with the known facts of the case.  The second was contradicted by Eunice's signatures on the applications, dated in September, and by the fact—as Hadley could easily establish—that in September she had undergone medical exams specifically to qualify for the coverage.

Hadley argued that Clafler's testimony was inadmissible: "It is irrelevant, it is immaterial, it is hearsay of the grossest and most offensive kind."  Privately he felt that he could not lose on this issue; he believed that case law was so firmly in his favor as to represent an almost certain reversal on appeal if Judge Paul ruled against him.

Eagan told the judge that Clafler's story was offered "not to prove the truth of what was said but to evidence circumstantially the true state of mind of Eunice Zeigler in direct rebuttal of the defendant's testimony.

The two attorneys cited cases to support their arguments.  Paul took a break to study the citations, and when he returned he sustained Hadley's objection.  Clafler was not allowed to testify.

Beginning in April, Hadley had made at least six other motions or objections on important issues of evidence.  He had moved to suppress the evidence seized during the warrantless search of the store; to suppress evidence seized at 75 Temple Grove; to suppress the footprint testimony of Professor MacDonell; to