Fatal Flaw

procedure.  It is a compendium of awkward thinking, poor judgment, and questionable methods:

Ÿ         Don Frye never inspected the soles of Thomas's shoes, even though the  detective believed that bloody footprints on the terrazzo floor might identify the killer.  When Thomas left police custody after giving his statement early Christmas morning, his clothes and his shoes went with him.

Thomas's own statement put him at the front door of the furniture store within a minute of Mays's death, and at the back of the store within five to ten minutes after the first three killings.  Sound practice and common sense dictate that anyone who admits being at the threshold of a murder scene, nearly at the moment when the crime was committed, deserves a certain amount of skepticism and close examination.  Yet no OCSO officer ever examined Thomas's clothes.  He was never tested for gunshot residue, which could have verified or disproved his story of the orange grove.

Ÿ         At 3:00 A.M. on Christmas Eve, Alton Evans found a key ring with  three keys in one of Charlie Mays's pockets.  According to Evans in his deposition, the keys were released to Mattie Mays, at Frye's request. Evans said that the keys were not processed for fingerprints and were never tried in any of the store's locks.  Apparently they were never photographed.

Releasing untested evidence from a crime scene is such an egregious breach of investigative protocol that it needs no further comment.

Ÿ       OCSO deputies violated a basic rule of procedure when they began smoking at the crime scene before all the evidence has been collected and processed.  Beginning on Christmas Eve they smoked in at least two areas, at the front of the store and in the office that Zeigler and his mother shared.

This became a issue when one of the state's photographs showed a burned matchstick atop a .22 cartridge on the floor of the office.  Since neither Tommy nor Beulah smoked, this seemed to show that someone else had been in the room during or after the crime.  But the OCSO claimed that the match had been dropped by one of its deputies, and the defense could not prove otherwise.

The question would have been much clearer if sheriff's personnel had observed the prohibition against smoking at a crime scene, not to mention the universal rule that a scene should be disturbed as little as possible until technicians have finished their jobs.

Except perhaps in this instance, smoking at the scene may not have directly influenced the evidence.  But it does reveal a certain attitude, an approach to the work: that in the first few hours of the biggest investigation of their careers, the OCSO investigators did not observe a basic principal of their profession—they could not be bothered to step outside when they wanted a cigarette.

door-to-door interviews in the neighborhood until after the preliminary hearing, which was on January 16. (Judge Kaney's low opinion of the state's case, as manifested in the paltry $40,000 bail figure, must have been a shock to the system.)

This is not just a failure to observe formalities.  Don Frye appears to have been completely satisfied with the reliability of Edward Williams and Felton Thomas, but the fact is that their accounts were mostly uncorroborated.  The guests in the motel's north wing were in a unique position to confirm or deny the veracity of two witnesses without whom a guilty verdict, even an indictment, would never have been possible.

Eagan did send a letter to the registered guests, asking their help.  The only concrete product of that mailing was the Jellison interview, which the prosecution apparently ignored.  Eagan's request was dated April 12,  1976: three and a half months after the murders.  Furthermore, letters and even telephone interviews are no substitute for face-to-face questioning. The time for that was Christmas Eve, when memories were freshest and potential witnesses were still available, just a brief stroll away from the crime scene.

Sheriff's deputies should have knocked on doors at the motel immediately.  That they did not do so—that Frye and ranking OCSO officers on the scene did not order them to do so—is inexcusable.  It represents the loss of unique testimony that could have settled the case, one way or the other.

 In fact, it is such a stunning oversight that we must wonder whether someone did not actually interview north wing guests on Christmas Eve and come back with damaging information that investigators decided to disregard. Ordinarily we would accept the word of the police on this matter. But in this case the question cannot be so easily dismissed, given the Jellison tape and how the prosecution handled it.

Ÿ       The OCSO investigators chose to bring Felton Thomas into the furniture store when they questioned him during the early hours of Christmas morning, at a time when evidence technicians had just begun collecting their specimens.  (James Jenkins questioned Thomas, with Frye present.) There was no reason for Thomas to be in the building; he could add nothing  to the investigation there.

But good reason did exist for Thomas to be kept out.  One of the axioms of forensics is that any visitor potentially alters a crime scene either by removing traces of evidence or leaving some behind—hair, fabric fibers, dirt, fingerprints, footprints—or by disturbing the arrangement of what is already there.  Strict procedure dictates that the scene should have been off limits to all but those whose job required them to be there.

Thomas, in particular, should have been kept far from the scene. His claim that he had never gone into the store with Mays was one of the key points of his

Frye didn't seize any photos from the home indicates that he never intended to subject Felton Thomas's statement to this simple test.2 As it happened, Thomas was not available for photo spreads anyway: immediately after Frye and Jenkins released him, he went missing for four days. But Frye didn't know that until later.

(Since the transcript of the original interrogation probably doesn't record the entire conversation between Thomas and the two detectives,we can't know for certain that Frye and Jenkins didn't ask the right questions. But we can be sure that Thomas didn't accurately describe Zeigler that night.  If he had, that description would have fortified Thomas's credibility and surely would have become a part of Frye's official report. Frye had no reason to withhold an accurate identification.)

Ÿ       The recognition experiment that Frye and Denny Martin conducted in the back of the showroom was poorly conceived, and proved nothing.

Frye was testing whether Edward Williams could have identified a gun wrapped in a towel in Zeigler's hand.  Under actual conditions, Williams would have been coming from relative brightness (exterior lights at the motel shone on the rear compound) into the darkness of the showroom. Also, Williams would not expect to find a gun in Zeigler's hand.

But in Frye's experiment, he and Martin stood inside the store so that their eyes could adjust to the darkness.  (Frye himself admitted this.) Then each took turns walking up the hallway while the other held an unloaded service revolver.  Frye said that Martin went outside and then came in, but Martin denied it.  He said that he simply went to the end of the dark hallway and then walked back into the showroom.

Frye devalued the experiment when he used a known object.  He did not wrap a cloth around the pistol.  Above all, he undercut the premise of the test by allowing his eyes to adjust.  Under the circumstances, it is not surprising that he found that the test confirmed Williams story.

Even so, Martin remembered it with less confidence.  From his deposition of April 29, 1976:

Q (VERNON DAVIDS): What did you see?

A (MARTIN): Well, I could recognize Detective Frye.

Q: You could recognize him?

A: Yes, sir.  But it was very close.  I can't say whether or not  it was part of my imagination, knowing it was Detective Frye there or not.  But I could make out Detective Frye.

Q: What about in his hand?

A: Yes, sir.  I could see something in his hand.

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2      Zeigler and members of his family confirm that the house contained photo albums as well as framed pictures on display.  One of those photos is reproduced in the photo section of this book.

 Much of Orange County's law enforcement establishment, including Robert Eagan, converged on the store before midnight.  No doubt, most of them believed that the crime had been a single event: a robbery that got out of hand, a shootout. (Who could imagine what a tangled web it would become?) Frye alone, through his training at Professor MacDonell's workshop, understood that it was more complicated.  He was the first to grasp this, and he was absolutely correct.  We know that he told others of his findings. We can imagine his satisfaction when he informed his colleagues and his superiors that this was not the conventional crime they believed it to be.

He had reason to be proud.  He had just uncovered the first essential truth about what had happened in the store that night.

But now he jumped to an unwarranted conclusion: he reasoned that since it was not a conventional crime, not simply a robbery gone bad, Tommy Zeigler must be guilty.

He remembered it in a deposition: "Primary thing was the thing that he was alleged to have been shot when the killing of Mays occurred.  It was at that point I think I said to myself, we don't have what would be total; more or less is what I thought to myself.  So that was, I would say, an hour from my entering the store."

We can also understand Fry's impatience to interview Zeigler, and his confidence of being able to extract a confession: Give me half an hour with him.... As soon as Zeigler described a conventional crime, a simple shootout, then Fry had him, because Frye knew it hadn't happened that way, and he knew how to prove it.

But Zeigler never told that story.  When he was conscious and coherent on Christmas—before he ever could have known about Frye's observations and assumptions—Zeigler told Terry Hadley a story that is compatible with the blood spatter evidence, and that has remained consistent for nearly seventeen years.

All of the observations Frye made that night can be explained within the context of Zeigler's story and the evidence that later developed:

1.     The blood trail to the front door.  That trail was not Zeiglers blood type.

2.     The holster on top of Mays's spattered blood.  Jimmy Yawn testified that the holster had been moved, a suggestion that is easily believed, considering the foot traffic through the crime scene.

3.     The appearance to Mays's blood spatters on top of Perry Edwards's dry blood swipes.  Zeigler's testimony is compatible with the theory that Mays was killed some time after Perry Edwards.  In that sense, the blood spatters actually corroborate Zeigler's testimony.

This is the masterpiece of deduction that helped to set Florida's legal machinery in motion again Tommy Zeigler.3

FULL AND FREE INQUIRY

The four murders were a confusing crime that deserved a thorough, careful, and far-reaching investigation.  Jack Bachman, a veteran homicide detective, called it the largest crime scene he had ever encountered.  From his deposition:

"You know, there was four different areas where there were four bodies and then in between there were a lot of furniture knocked over. There was a lot of blood splattered about.  There were a lot of bullet holes, there were a lot of weapons.   You know, it's not one of those deals where we used to knock them out like petit larceny, where you're in and out and you're gone to the next one.  I mean, this was a highly complex crime scene."

It was not only logistically complex, but mentally challenging. The forensic evidence is ambiguous, and most of the witness accounts are full or variables.  In all, the case presents a very few unquestioned facts within a fluid matrix of great uncertainty.  It will assume almost any shape, depending on one's willingness to make assumptions and stretch probabilities.  You see what you are ready to see.

Such a problem needed an investigator who was ready to see everything, and nothing: someone who could comprehend all the possibilities without committing himself to any one of them.

Don Frye appears to have committed himself almost at once.  A careful review of the record gives no hint that he ever considered, much less investigated, any other possibilities besides Zeigler's guilt.  He must have banished all doubt before he arrested Zeigler on the 29th.  By then he also had to be certain that Edward Williams—whose truck was found at the crime scene, and who showed up at the police station several hours after the murders with a bizarre, mostly uncorroborated story and a murder weapon—was unquestionably telling the truth.

Once Zeigler was arrested, any chance of an open-minded inquiry was lost.  The work of Frye and the rest of the OCSO seems to have been directed toward confirming the correctness of the arrest.  Frye and Bob Eagan have often claimed that Zeigler received a full and fair investigation, and that they carefully examined every possibility of Zeigler's innocence.  But once the police and the prosecutor had committed themselves to convicting Zeigler, their motives for demonstrating his innocence were slight indeed.

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3   Would Frye have considered Zeigler innocent if he had found Zeigler's blood droplets around Mays? It is an argument that Zeigler cannot win and Frye cannot lose.  Actually, the absence of droplets only indicates that whoever stood there wasn't dripping blood.

A (FRYE): I said cars; two cars were seen in front of the store at 7:58, I believe is what the Smiths say. That correlated with the time trial run that I conducted with Mr. Felton.

Q: Don't those statements say it was not Curtis Dunaway's car?

A: Didn't say it wasn't either.  If you will read the deposition we took by the Smiths, they are stating in there they did not pay that much attention to the vehicle, that most of their attention was directed from the dark store.

Seeing what we want to see, remembering what we want to remember, is a human failing.  That's why open-mindedness is crucial in an investigation.  Belief is the enemy of skepticism; when we start believing, we stop asking questions.  Belief (unlike faith) requires constant affirmation, and does not tolerate contradiction.

No doubt, Frye really was sure that Patricia Smith had left open the question of whether the dark car was the Dunaway Olds.  Moreover, Frye—who was not there at the time—was ready to substitute his own belief for the sworn, specific testimony of the Smiths.  He knew that the dark car was actually the Dunaway car.  It was true because it had to be true, regardless of what Patricia Smith or anyone else said.

But the Smiths were emphatic about what they had seen.  If their observations had supported the state's case, we can be sure that Frye and Eagan would have regarded them as highly credible witnesses, which indeed they were.  They maintained their stories during the questioning by Frye and Lawson Lamar, and their description of the smaller dark car went unchallenged at trial.  The only problem with their testimony was that it denied, rather than supported, the state's case.

This is not an isolated example.  We'll see in the next chapter that the state disregarded two reliable independent witnesses whose unassailable testimony convincingly discredited Edward Williams and the heart of the prosecution's case.

But let's return to the dark Mustang-like car.

In a legitimate investigation, Frye would have used motor vehicle records to compile a list of dark-colored Mustangs in the West Orange area.  He might have checked ownership records against a list of persons who Zeigler believed were involved in the loan-sharking operation.  This might have provided a lead: successful investigations have begun with much less.

In fact, how did the OCSO treat this question?

During Frye's first deposition, Terry Hadley asked him about the Christmas Eve incident when two black men in a dark Mustang drove into the Gulf station on the corner of Dillard and Route 50 and talked about a shooting at the furniture store before the police were on the scene.

to talk about his gunshot wound.  I further suggested that any information he might give could wait until after the trial, since in my opinion he is creating a spurious defense which now is supported by the very fact of the interview.

It therefore becomes necessary that I be furnished forthwith a complete report of this matter with the names of all persons participating.

In addition I hereby request an immediate and complete investigation, with detailed reports furnished to me, of each and every allegation made by Mr. Zeigler, and that each officer participating be ready to testify at the murder trial as to what his participation revealed.  This is absolutely necessary.

(Zeigler, Hadley, and Vernon Davids all deny that any OCSO deputy, or any prosecution investigator, ever tried to interview him about his loan-sharking claims.)

Additionally, Vernon Davids swore in a 1987 affidavit that Eagan and his assistants deliberately misled him about the location of evidence items, including Charlie Mays's shoes and Edward Williams's pants.  It is also clear that, by design or error, the prosecution failed to turn over potentially exculpatory evidence, including the Jellison tape.  As this is written, the courts are considering Zeigler's motion for a new trial, based in part on the suppressed evidence.

The use of the FBI Lab, rather than the Sanford facility, had great ramifications for the conduct of the trial.

The decision to use the FBI erected a wall between the defense and the evidence that went to Washington.  And FBI examiners are not subject too state subpoena; the state's control of the evidence and the experts allowed Eagan to arrange the footprint testimony of Herbert MacDonell in a perfect counterpoint to the FBI's Thomas Delany. MacDonell's testimony, regardless of its substance, would not have had such a maximum impact if Delaney had testified in turn.  Most damaging, Delaney could not be recalled to argue the validity of his work; a state employee would have responded instantly to subpoena.

We cannot assume that police and prosecutors chose the FBI in order to frustrate the defense; at the time, it was a sound, legitimate decision.  But the decision to exploit that advantage was Eagan's.

The slow pace of result from the FBI forced the prosecution to postpone its grand jury presentation until two and a half months after Zeigler's arrest.  This delayed the defense's ability to invoke discovery, while time was tolling on the six-month speedy-trial deadline.  Eagan might have begun at least informal discovery during February and March, but he did not.  His office finally released discovery material on the last hours of the last possible day—and then it was incomplete.  This may be an indication of the precariousness of the state's

Hadley didn't stand to gain any tactical advantage from such a delay, especially after his client finally waived speedy trial.  He seems to have truly needed the time to prepare his case.

The defense's work is open to question in several areas.  Hadley and Davids reacted poorly to the MacDonell surprise; they needed days, not minutes, to prepare adequately to question the professor, and even if they had no chance of getting that time, they ought to have demanded it in order to create an appeals issue on the record.  During the discovery phase of the case, some important questions remained unanswered in the depositions of Felton Thomas and Edward Williams: we do not know who accompanied Thomas on his aborted trip to Orlando, to report to the sheriff; we do not know specifically where Edward Williams went when he visited the Winter Garden Inn after leaving the store, or what he did at the motel.

Also, the defense seems to have failed to grasp fully the significance of the Nolans' testimony, and the decision not to put the Fickes on the stand probably was a miscalculation.  In Hadley's closing argument he introduced several threads of an alternative theory of the crime, but he never fully developed it.

But all these observations occur only after months of leisurely examination of the record in this most complex case.  As Hadley approached trial, he and the rest of the defense team were under constant pressure of time.  Today they remember it almost as a frenzy. The prosecution did not turn over its discovery material until barely six weeks before the trial begun.  Any criticism of Hadley's work must be made in the light of Paul's repeated refusal to grant even a two-week continuance.

Simple fairness alone dictates that the defendant in a capital trial should get the benefit of the doubt on such a relatively minor matter. (And, if not fairness, the people's interest in ensuring fair trials.)  The reaction of the defense psychologist, Stephen Robertson, is probably typical of most laymen: A man's life is at stake, what's the rush?

We have to take on faith, or leave aside, the question of whether Judge Paul was hostile to the defense, as Hadley alleged.  A trial transcript is unsuited for displaying such nuances.  Adverse rulings, even a consistent pattern of adverse rulings, are not proof of prejudice.

The judge's defenders would probably point out that appeals courts upheld the judge on all matters, save one: the admission of character witnesses in the penalty phase.

That Paul's rulings have stood is no surprise.  Appeals courts grant judges wide latitude in their conduct of a trial.  One of the reasons trial judges have such discretion is that they traditionally have avoided the appearance of conflict of interest.  Generations of judges have excused themselves from cases that involved far more tenuous connections than the one that existed here.

Table Six

TIME SEQUENCE (PARTIAL): DILLARD STREET

 Incorporating testimony of Ed Nolan and J.D. and Madelyn Nolan, as well as other depositions.  Controversial elements from the state's case are emphasized.

 7:05 P.M.  Thomas Hale sees Eunice and Tommy.

7:10          Tommy kills Eunice.

7:20-7:25   Barbara Tinsley hears first volley; Ken and Linda Roach hear multiple shots; clock stopped by bullet; Zeigler kills Edwardses.

7:30-7:35   Charlie Mays and Felton Thomas arrive at store, Zeigler is gone.

7:35          Zeigler meets Mays and Thomas in motel parking lot, drives to orange grove.

7:40          Mays and Zeigler climb back fence.

7:45          Tinsley hears second volley.

7:45          (Eagan): Zeigler kills Mays.

7:45          (Frye): Zeigler, Mays, and Thomas drive to 75 Temple Grove.

7:55-8:00  (Frye): Zeigler kills Mays.

8:30          Yawn and Thompson out of service at Kentucky Fried Chicken.

8:35-8:40   Zeigler and Edward Williams arrive at furniture store.

8:40-8:50   Zeigler attempts to kill Williams, who climbs fence and runs to Winter Garden Inn, then to Kentucky Fried Chicken.

8:50          Yawn and Thompson leave restaurant; Thompson to Oakland.

9:20          Zeigler calls Van Deventer home, talks to Ficke, shoots self.

9:21          Thompson makes radio call en route from Van Deventer home; Yawn takes call at Winter Garden Inn, nearly broadsides J.D. Nolan car southbound on Dillard; Thompson and Ficke arrive.

Fifty

On the morning of Christmas Eve in 1975, Tommy Zeigler was a successful and prosperous young man who had showed no tendency to violence.  By all evidence, he enjoyed the loyalty of friends and the love of family. His life was full of good things, both material and intangible.

We are told that this person brutally murdered four people, including his wife.

The state's theory of the crime is a bridge that spans the chasm between the Tommy Zeigler whom the world knew before Christmas Eve of 1975 and the Tommy Zeigler who was convicted of these ghastly acts.  It is a bridge we must cross entirely if we are to believe him guilty. The state's theory is the only way to get there from here.

That theory, as expressed by Don Frye before the grand jury and by Robert Eagan in his arguments at trial, relies on speculation and improbable testimony.

It is largely uncorroborated, and ignores strong contrary evidence.

It fails to address strong indications that Charlie Mays was in the store to commit a crime.

And it is finally, irretrievably, undermined by J.D., Ed, and Madelyn Nolan: disinterested witnesses whose observations on Christmas Eve discredited the heart of the state's case, and who—as we'll see—could not have been mistaken in their testimony.

Science and the rules of logic tell us that a hypothesis must, at the least, not be contradicted by the pertinent evidence.  To accept Zeigler's guilt we must embrace every important aspect of testimony by four witnesses who convinced the authorities that he plotted and executed the murders.  Those four are Edward Williams, Felton Thomas, Frank Smith, and Mary Ellen Stewart, without whom the case against Zeigler does not exist.

This seems to be an impressive array: Williams, Thomas, Smith, and Stewart, each adding to the mosaic of guilt.  Yet they are mainly uncorroborated, except by each other.  Furthermore, Williams, Thomas, and Smith all had a supreme stake in the outcome: Williams's truck was found at the crime scene and he was in possession of the primary murder weapon; Thomas fled the scene; and Smith was the owner of record of two other significant weapons.  Mary Ellen Stewart had a

have known that he would be killing Eunice and her parents shortly before 7:30.  Mays was supposed to be eager to receive his bargain-priced TV.  If he had driven up while shots were being fired inside the store—Eagan claimed that Zeigler was killing Perry and Virginia Edwards at 7:24—then Zeigler's elaborate plot would have been ended hardly before it began.

If we are to believe that Zeigler is guilty, we must believe that Edward Williams was terrified for hours by three clicks in the darkness.  Williams said that when he heard the gun snapping, he knew immediately that Zeigler was trying to kill him.

Williams's reaction, as he described it, might have been appropriate at the climax of a tense, uncertain situation.  But this was not the case on Christmas Eve.  He knew Zeigler well, and trusted him.  As far as Williams knew, their errand was routine.  He had no reason to be anything but relaxed as he walked up the hallway toward the showroom.  Moreover, visibility was marginal at best, and Zeigler was suppose to have wrapped a towel around the object that he carried in his right hand.  Yet Williams claimed that he knew at once that the clicking was from a gun, and was instantly terrified, certain that Zeigler was trying to kill him.  Moreover, his terror did not ebb when he got away from Zeigler.  In fact, by his testimony, it grew greater. He managed to drive his Camaro from Winter Garden to Mary Ellen Stewart's home in Orlando, yet claimed that two hours or more after the incident, he was so shaken that he could not drive the few blocks to the sheriff's station.

If we are to believe that Zeigler is guilty, we must accept that he allowed the two principal witnesses against him to escape without a struggle.  First, according to Felton Thomas, Zeigler left him sitting in the Oldsmobile while he took Charlie Mays into the store and killed him.  Thomas said that Zeigler tried to coax him inside, then gave up and told him to stay in the car when he refused to follow Zeigler into the dark building.

But Zeigler did not have to coax Thomas.  According to Thomas himself.  Zeigler had a bag of loaded pistols; he could have forced Thomas into the store at gunpoint, or at least tried to do so.

Later, according to Edward Williams, Zeigler tried to coax him back into the store after Williams ran out.  Williams represented Zeigler's last chance to stage the burglary successfully.  According to the state's  case, Williams's escape was so disastrous that Zeigler was forced to shoot himself in order to deflect suspicion.  But Zeigler never physically tried to bring Williams into the store.

The two men weighed about the same, and Zeigler was more than twenty years younger than Williams.  Yet Zeigler never tried to fight or wrestle the man whose knowledge could wreck him forever, who had to be killed if the plan was to succeed.

Yet it was money that Tommy Zeigler didn't need.2  In all of their investigation, including the extraordinary opportunity to examine Zeigler's financial records, police investigators were unable to show that his finances were anything but solid.  His material well-being was assured.  The furniture store was a thriving enterprise, Tommy's pet project and solid foundation of the family's wealth: yet, if the state is to be believed, this was the place that Zeigler chose to stigmatize forever with a quadruple murder—the ultimate example of fouling one's own nest.

Two elements of the state's own evidence suggest that the insurance could have been no more than an afterthought.

First, Frank Smith and Mary Ellen Stewart claimed that Zeigler was attempting to buy guns as early as the spring of 1975.  Yet Zeigler didn't apply for the first insurance policy on Eunice until September. the OCSO's investigation showed that one of the insurance agents had tried to sell Zeigler a life policy as early as April 1975, and Zeigler put him off.

But perhaps Zeigler had another motive, and at some point added the insurance to benefit from a murder that he intended to commit anyway.  If so, he was working at cross purposes.  The state's theory is that Zeigler hoped the investigation would be a low-key affair under the jurisdiction of his friend Don Ficke, whom he might be able to manipulate.  But the huge insurance policies virtually guaranteed that other agencies would enter the picture.  Zeigler could not hope to keep the fact of the policies hidden; the companies themselves would demand a thorough investigation.

Second, if Zeigler intended to murder his wife for money, why should he commit the crime at such a time, and in such a way, that he would be forced to kill his in-laws?  For if he is guilty, then the evidence is clear: Perry and Virginia Edwards did not walk into the store by chance.  Zeigler knew that they were only a few minutes behind.  He must have arranged for them to be there.

This is the most glaring drawback to the purported insurance motive that Robert Eagan carefully laid out at trial: It does not explain the murders of Mr. and Mrs. Edwards.

Don Frye's answer is what might be called Version B of the motive, based on Cheryl Clafler's statement.  This theory is that a great rift had opened between Tommy and Eunice because she had discovered his homosexual affair, that she had told her parents of her unhappiness and her fears, and that she intended to leave with them after Christmas; therefore Tommy was forced to act quickly.  He

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2   The magnitude of Zeigler's defense is proof of this.  The family hired multiple lawyers, two of them full-time, and multiple investigators, two of whom worked overtime for more than five months, and multiple experts.  Neither Tommy and Beulah, nor the attorneys, dispute the estimate that the defense cost well over $500,000.

THE PLOT

But let's assume that Tommy Zeigler was so persuasive as to make all this happen exactly the way it had to happen.  How did this plot take shape?  When did it turn from vague musing to concrete preparations?

Zeigler must have settled on his course of action no later than Monday, December 22.  According to Edward Williams, that was when Zeigler first made the Christmas Eve appointment.  Then, for the next two days, Zeigler apparently did nothing to further his complicated plans.  He must have known that if his plot was to succeed, he would need at least one more credible "robber," yet there is no evidence that he approached anyone else until he saw Charlie Mays at the store, less than ten hours before the murders.

Apparently Zeigler decided on the spur of the moment that Mays would be a victim that night.  In spite of extensive publicity, no other people ever came forward and claimed that Zeigler tried to involve them at the store on Christmas Eve; nor is there any indication that Zeigler spoke to Charlie Mays about it until the 24th.

Why did Zeigler let these preparations go until the last few hours?  What would he have done if Mays hadn't walked into the store on Christmas Eve?  This is decidedly slipshod behavior for someone who is otherwise cunning and thorough.

It might be suggested that Williams wasn't part of the original plot, that the plot didn't exist until Christmas Eve, when Eunice said or did something that forced Zeigler's hand.  But this, too, is most unlikely.  If that were the case, Zeigler would have had to break the appointment with Williams.  He couldn't allow Williams just to sit in his driveway all evening, witness to the fact that Zeigler was elsewhere at 7:30.  Furthermore, Zeigler had a chance to break his appointment with Williams, when Williams came by the store around noon on Christmas Eve.  But Zeigler didn't break the appointment—he confirmed it.  So he must have known as early as Monday the 22nd that he was going to kill Eunice, the Edwardses, and Williams, and he must have known exactly how he was going to do it.

In light of that, Zeigler's actions on the afternoon of Christmas Eve are truly inexplicable.  Having gone to such lengths to set up Williams as a robber, Zeigler destroys all his preparations when he informs Curtis Dunaway that he's planning to meet Williams at 7:30. (Before they leave the store at closing, Zeigler further draws attention to him by specifically telling Dunaway to turn off the display lights, which he could just as easily have done himself, by waiting a minute or two until Dunaway drove away.)

According to Eagan's first closing argument, Zeigler intended to show up at the Van Deventer party after he had murdered five people: "If he had killed

But what is the true significance of those guns?  Ownership of several pistols is not prima facie proof of evil intent.  Four of the five guns Zeigler kept in the store had been there for a year and a half or more, and they were no secret.  Indeed, choosing to commit murder in a place where one is known to have kept weapons is yet another instance in which Zeigler, according to the state's theory, seems to have deliberately chosen to create suspicion.

Let's examine some of the implications of the state's theory about the handguns.

Assume that Zeigler did ask Frank Smith to buy hot guns, and that he believed that two RG revolvers were untraceable, and that he wanted to commit murder.  Those two weapons, the RG revolvers, were most useful to him if he used them to kill his first three victims: Eunice, Perry Edwards, and Virginia Edwards.  Ballistics tests would show that the "robbers" had used these two unknown guns.  This would be even more credible if he disposed of the two guns. (He must have had the chance to do so, according to the state, since he apparently got rid of the rubber gloves and the Dunaway raincoat.)  The absence of those guns would strongly suggest that one or more of the robbers had escaped with the murder weapons.  In fact, if Zeigler did dispose of those two weapons, they wouldn't even have to be untraceable.

In any case, it would be crucial that he kill his first three victims with the two RG revolvers, not with any of the six weapons that could be traced directly to him.

The ballistics results do show that one of the RG revolvers killed Eunice, and that one or both inflicted the original gunshot wounds in the Edwardses.  But then in spite of the fact that one of the "unknown" guns was still perfectly functional, Zeigler must have decided to use a third weapon to inflict the shots that killed each of the Edwardses. He decided to use a gun of his own: not even one of the store guns, but one that at some point he must have brought in from the truck—the Securities .38.  That gun couldn't have been in the store by accident. Someone had to have brought it there.

Thus, according to the state's theory, Zeigler deliberately introduced to the murder scene a weapon that could be traced directly to him, the presence of which could not be explained.  Then he must have deliberately chosen it to commit two murders.  And he must have done so after days of forethought and planning.

Furthermore, since at least eight empty cartridges from that gun were found, it must have been fired until empty, and reloaded, then fired at least twice more, and then emptied again.  (There were no spent cartridges in the gun when Edward Williams turned it over to the police.)

Why should Zeigler use one of his own guns to kill?  And of all the guns he owned, why that one, the one he would least be able to explain?  If he insisted on killing his in-laws with one of his own weapons, why not one of the five that were

didn't leave Thomas's presence until 7:55, when Zeigler brought Mays into the store and Thomas fled the scene.

What is the basis of Frye's estimate?

He believed that Zeigler had fired several shots inside the store at 7:25, probably in killing Mr. and Mrs. Edwards.  Since Felton Thomas didn't mention hearing any shots when he and Mays were parked out back,. Frye deduced that Thomas and Mays must have arrived at the scene after 7:30.  At that time, according to Thomas, only one car was parked out front when he and Mays pulled up outside.  that had to be the Edwards sedan.  Therefore Zeigler must have been gone from the store, for some murky purpose, and then returned and met Thomas and Mays in the motel parking lot at 7:35.3

The problem for Frye and Eagan was that the actions and movements that Thomas then described—the trip to the orange grove, pulling the breaker switch, the fence-hopping, the drive to Temple Grove, and so on—couldn't possibly have occurred in less than fifteen minutes, and probably consumed twenty minutes or more.  This would mean that Mays, Thomas, and Zeigler didn't arrive at the store before 7:55, with Mays being killed shortly afterward.

Eagan told the jury in his first closing argument: "At 7:45, estimated, Mrs. Tinsley hears another series of shots.  I submit to you that that's when Tommy Zeigler walked into that dark store with Charlie Mays."

But Eagan had to know that Mays wasn't killed at 7:45.

We could almost say that ten minutes isn't much of a gap, that Tinsley was in the ballpark.  Unfortunately for Eagan, Tinsley specifically testified that she heard the second volley no later than 7:45.  If she is correct, she heard a volley of shots from the store while (according to the state's theory) Zeigler, Mays, and Thomas were pulling into Zeigler's driveway at 75 Temple Grove.

Eagan had to choose between Tinsley on one hand, and, on the other, Thomas and Williams, whose accounts are both very vague about time.  If Thomas and Williams were correct, then Tinsley had to be inaccurate (though Eagan did not say so to the jury).  Yet Tinsley was much more specific, and much more credible, given her awareness of the time.  Furthermore, the disrupted clock on the store seemed to demonstrate her accuracy in placing the time of the first volley.

THE LIGHTS AND THE GATE

The state's theory does not adequately address some of the physical circumstances that police found when they arrived at the store.

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3    Why Zeigler should want to leave the murder scene and drive around for five or ten minutes, further risking identification, is not explained.  It is another of those peculiar circumstances that must be true if the state's theory is to be accepted.

Zeigler must have turned off all the wall switches before Mays and Thomas drove up and found the store dark.  Then Thomas pulled down the breaker box switch, cutting off all power inside.  Then, after killing Mays, Zeigler went through the store putting some of the wall switches into the on position (but not turning on the lights, since the breaker box was now turned off).  Thus Yawn discovered some of the switches turned up, but the lights would not come on.

Why Zeigler should engage in such a pointless exercise in the midst of a quadruple homicide is not apparent.  Yet by the state's theory, this is the only explanation for the conditions that police found.

A much simpler explanation exists for both the gate and the lights.

First, the perpetrators—not Tommy Zeigler—bent the prong because they had to get a vehicle in or out of the gate.  However, this directly contradicts Williams, who claimed that he found the gate locked after Zeigler tried to kill him.

As for the switches, the simple explanation is that some of the lights were on inside when the perpetrators—not Tommy Zeigler—pulled down the breaker box arm, so that they could enter the store in darkness.  It accounts for what police found after the crime: breaker box turned off, lights switches inside turned on.

But this compels us to discount Thomas, who said that the store was dark but the breaker switch was up.

BLOODY SOLES, BLOODY CUFFS

Charlie Mays's blood-smeared sneakers and blood-soaked trouser bottoms are inexplicable by the state's hypothesis.  Mays could have collected that amount of blood in only two places: the pool around Mr. Edwards and the pool around Eunice.  These are not places where Mays would have innocently walked.  Furthermore, even if he did happen somehow to stumble into Perry Edwards's blood at the back of the store, his sneakers certainly would have left some traces on the terrazzo-some print of bloody scuff.  But there is none.  In fact, the evidence photo of Mays, sprawled on the terrazzo, is almost eerie.  Here are two obviously bloody sneakers, with no bloody footprints.  It's as if Mays has been carried there and put down.

But the blood splatters from his beating showed that Mays was killed on the spot.  And there are also the bloody cuffs, which do not appear to have left a trace on the white floor, even though Mays's legs must have been jostled as the killer squatted astride his chest and violently beat in his skull.

How does Frye explain these phenomena?

Frye said in his second deposition that be believed that Mays was shot about five feet from where he was killed, in an area of smeared blood and half a dozen blood droplets, which appear in a photograph reproduced in the photo section of

if all that was true, he would be unlikely to have dripped much blood onto the floor; his shirts would have soaked it up.

Furthermore, the bloody marks on the floor are part of a pattern that continues past Mays's right arm, where it seems to join where is the major “swipe trail” that runs along the back wall. And, finally, where is the smeared blood that would have transferred from the cuffs to the white floor "as he is pushing back"?  There are no marks anywhere near the body that were identified as "transfer stains" from bloody fabric.

Frye's explanation is no explanation at all.

"That is my theory only," he qualified it during his deposition. "Can't say that positively."

But some explanation is necessary.  If the state's hypothesis is to have any validity, it must credibly address the question of the blood on Mays's shoes and cuffs.  It does not.

However, a credible, feasible explanation exists.  In the police photo of Charlie Mays's body, the contrast between the bloody cuffs and the pristine white floor immediately around them is striking.  And there is only one way for this to have happened.

Dry blood would not have left any marks on the floor.  Dry blood on the soles of Mays's shoes would have left no prints.

But that blood would have needed at least fifteen to twenty minutes to dry.  In that case Charlie Mays would certainly not be an innocent victim.

Could it have happened?  Professor MacDonell admitted that the "swipe trail" that led to (or from) Mr. Edwards's body could actually be wiped-up footprints.  Let's assume that Mays crouched beside Perry Edwards's body and tracked his blood along the back wall, and then decided to wipe up the prints with Curtis Dunaway's raincoat. (Somebody obviously used the coat for some purpose, and then disposed of it.)  He wouldn't have wanted to track back across the floor; it is reasonable to believe that he removed his sneakers and walked in stocking feet, wiping up the tracks.  Meanwhile the blood dried on Mays's cuffs and sneakers.

However it occurred, the hypothesis that that blood was dry when Mays died is the most likely explanation for the absence of bloody footprints and transferred blood under Mays's cuffs.  It is also a hypothesis that leaves no room for Tommy Ziegler's guilt.

THE NOLANS

In one way, in its obvious appearance, this is an extremely complex and confusing case.  The evidence is massive, complex, ambiguous.

In another sense, though, it is actually quite simple.  The case is a choice between Tommy Zeigler and Edward Williams.  Their accounts of Christmas Eve

for the police to show up, be carried into the back of the squad car and examined by Thompson, and be driven to the hospital.

It is not possible that all of this took place while Williams was traveling from the store to the restaurant.  It is not possible even if Williams crawled from the store to the motel and across the street.

To put it another way; the Nolans’ testimony implies that Tommy Zeigler must already have been shot when Williams left the furniture store.  Not only was Zeigler already shot, but Robert Thompson and the emergency room nurse both found that the blood had dried around his wound.

If the Nolans saw what they claimed to see, Williams's story is fatally flawed, and so is the state's hypothesis of guilt.

If the Nolans saw what they claimed to see—what they swore they saw—then really nothing else matters.  Tommy Zeigler could have had $10 million in insurance on  his wife; it doesn't matter anymore, as far as Zeigler's guilt or innocence is concerned.  Zeigler could have made fifty footprints in blood; it doesn't matter.  He could have owned a hundred pistols, he could have told Curtis Dunaway to turn off every light in the store; it doesn't matter.  If Edward Williams was at the restaurant when the Nolans said he was there, then Tommy Zeigler is not a guilty man.

So why didn't the Nolans create at least reasonable doubt?

I believe that neither the prosecution nor the defense saw the true significance of the Nolans' testimony.  The reason is simple: the Nolans were eyewitnesses, and lawyers and cops know that eyewitnesses are unreliable.  Even Terry Hadley doesn't appear to have regarded the Nolans' testimony as a "smoking gun."

Yet that is exactly what it is, in its implications and its clarity and its credibility, because the Nolans were almost unique as eyewitnesses.  They could not have been mistaken about what they saw. They could not have been mistaken about when they saw it.

The time of the events is perfectly fixed by the radio call that sent Jimmy Yawn rolling out onto Dillard Street, where the Nolans nearly collided with him.  That was at 9:21.  The Nolans could not have been there at 8:50 or 9:15 or at any other moment.  The clock starts ticking on their observations at 9:21.  Both agree that they watched the police at the store for several minutes.  So, it is 9:24, give or take a minute, when the black man tells Ed and J.D. Nolan that he wants to use the phone; by now Thompson and Zeigler are already at the hospital.

Who is the black man?  The Nolans cannot be mistaken on this point, either.  The man has to be Edward Williams.

Here again the Nolans' testimony is unique.  Descriptions of strangers are the great failing of eyewitnesses.  Somehow the details are never quite right.

But the Nolans didn't have to know what clothes Edward Williams as wearing.  They didn't have to specify how tall he was, or how old (although J.D. and Ed

It cannot be dismissed.  It cannot be ignored.  It may have been unrecognized at trial, but that does not diminish its ultimate value.

This is what it means:

If the Nolans saw what they swore to have seen, then Tommy Zeigler was wrongfully convicted.

Anyone who believes that Tommy Zeigler deserves to spend another day in prison—much less be killed—has the ethical obligation to demonstrate that J.D. and Madelyn Nolan lied.

Because if they did not lie, then Tommy Zeigler is an innocent man.

HYPOTHESIS OF INNOCENCE

I believe that two or more assailants waited for Tommy Zeigler to arrive at the store on Christmas Eve.  Possibly one of them hid in the storeroom during business hours, having climbed the back fence, and come in through the bay door, which was open most of that day.  They may also have entered using a key.  They turned off the lights at the breaker box.

This was not a casual break-in.  Seven-thirty in the evening is a poor time for a burglary.  The perpetrators were there because they knew that Tommy Zeigler was going to be there.  As a bonus, they probably intended to rob the store of the cash that they knew the Zeiglers kept in the building, and they may have intended to steal the several pistols they knew were available.  But they were there mainly to do harm to Tommy Zeigler.

They expected Zeigler to arrive around 7:30.  They did not expect Eunice Zeigler and her parents to let themselves in at the front door about fifteen minutes before Tommy arrived.

These unexpected arrivals had to be dealt with.  They were probably ambushed between the counter and the front door.  They may have had some slight warning.  Perry Edwards may have had a chance to grab one of the guns from under the counter and exchange shots with the assailants.  The GSR test results from his right hand are consistent with this possibility.

Eunice probably was running away when she was shot in the kitchen. The theory that she was surprised by the shot that killed her is unconvincing.  The bloodstains on the inside of her lapel strongly suggest that someone tampered with her coat after she was dead.  If so, then the fact that her hand was found in her pocket is meaningless.

Virginia Edwards was most likely shot at this same time.

Several bullets struck Perry Edwards, wounding him but not killing him.  The blood-soaked area of carpet between the counter and the front door marked where he fell.  The glasses case in his breast pocket stopped a bullet that would have hit his heart.  Instead, the slug probably put him down and incapacitated him for a

evidence was collected—that is, apparently a week after the OCSO technicians had completed their search.  (The property receipts, and Alton Evans's testimony from  his notes, are unequivocal on the date of the find.)

Property receipts also show that early Christmas morning, investigators impounded a can of furniture wax and a rag, which were kept on or around that cabinet, beside the large bay door.  This indicates that the storeroom, specifically the immediate area around the cabinet, was searched long before January 2.  Why was this sizable cache not discovered in this original sweep?

The only evidence connecting Zeigler to the gun boxes in the bags was the testimony of Ray Ussery, owner of the bait and tackle shop where Zeigler bought three pistols in 1974.  Ussery testified that the boxes came from a pile that accumulated when customers bought pistols but did not take the boxes that came with them; those boxes would then be thrown into the pile, and given to other customers who wanted them. Ussery was testifying nearly two years after Zeigler bought the pistols, a transaction he himself did not handle.  Yet he was certain that the two boxes in that cache were the very same boxes that his clerk had given Zeigler.

The dates are significant.  Gun boxes carry the serial number of the gun they originally contained, and thus can be traced just as the weapons are.  One of the two boxes found in the storeroom cache belonged to a pistol that Ussery sold in December 1974-two months after Zeigler's purchase.  According to Ussery's own testimony about his procedures, the box he attributed to Zeigler could not have been in the pile of leftovers when Zeigler bought his three pistols in October.

It should be noted that Ussery swore that Zeigler's transaction took place on January 9, 1975, although the paperwork was dated October 31, 1974.  Ussery attributed the discrepancy to "a clerical error."

Does any of the other evidence from the cache preclude its having been planted?

The empty shells were from the Securities revolver, which was in police custody.  One of the paper bags was found to have Zeigler's palm print, which seems to be damning.  However, the record shows that police removed a similar paper bag from the home at 75 Temple Grove; yet that item was never logged into evidence.

That still leaves Curtis Dunaway's Oldsmobile, with the Smith & Wesson revolver, the traces of blood on the headrest, and the signs that it had been wiped down.

Several of Zeigler's attorneys believe that the killers drove Dunaway's car to the store that evening.  Terry Hadley claimed in his closing argument at the trial that the killers' original plan was for Edward Williams to drive away from the scene in his pickup truck, and that the gate had been forced open for this reason. 

Hadley told me in 1991 that he believed the information he received from Zeigler during the Andrew James episode.  It was consistent with what he knew about practices in the fields and camps.

Hadley said that Zeigler was in a position to know what he claimed to know.  "Tommy had amazing contacts in the black neighborhoods," he said.  "I could not have made that defense [of Andrew James] without him.  He knew a lot of good people and a lot of low-lifes.  Tommy went to Atlanta four times a year, on [furniture] buying trips.  If he really wanted his wife dead, he could have had it done while he was hundreds of miles away.  He knew plenty of low-lifes who would have done it for him as a favor."

*

Clearly the state had a case.  It stood up to cursory examination.  At trial, Robert Eagan's obvious skills and the great mass of mostly ambiguous evidence helped to disguise its shortcomings.

The state's case was almost true.  It was a case good enough to win.  But even a winnable case is not necessarily the case.

During my research and writing I discussed this story with a friend who is experienced in investigations, and who also is a committed rationalist.  He believes that our tendency to jump to conclusions, to seek answers on the basis on incomplete evidence, is one of the great human failings.

At some point he sent me an epigram that he felt captured the essence of Florida v. Zeigler.  The quotation is attributed to the nineteenth-century clergyman Henry Ward Beecher:

"Whatever is almost true is most certainly false, and is among the most grievous of errors."