By Sherri M. Owens | Sentinel Staff Writer
Posted February 25, 2005

TAVARES -- A lawyer for James Duckett, a former Mascotte police officer convicted of the 1987 rape and murder of a young girl, told a judge Thursday she has new evidence to support another trial for her client.

That evidence is based on testimony from the former boyfriend of a witness in the original trial. The boyfriend says the witness, Gwen Gurley, told him she lied about seeing 11-year-old Teresa McAbee in Duckett's patrol car the night the child died.

Duckett, currently on death row, was returned to Lake County for the hearing but did not testify.

During the 1988 trial, Gurley, who was 16 at the time, told a judge she saw Duckett talking to Teresa in his police car and then saw Teresa get out and walk toward home. Moments later, Gurley said, he circled back and she watched "a small person" get inside and she saw Duckett, now 47, drive away.

In a deposition a year later, Gurley said she made up the story.

Then, during a court hearing for Duckett in 1997, Gurley refused to answer any questions about what she did or did not see. She told the Orlando Sentinel in 2003 that she was afraid of being charged with perjury if she admitted lying in court.

She has made no statements in court since that 1997 hearing.

On Thursday, however, the father of two of Gurley's children testified that she had confessed to him that she lied during the trial.

Roscoe Higginbotham, 35, currently held in the Lake County Jail on charges of violating probation, said Gurley was in the hospital in 1989 because of complications with her pregnancy when she was visited by two men -- presumably law-enforcement officers.

He said she did not want to talk to them and insisted that they leave.

"She told me they had to do with the Duckett trial," Higginbotham testified. "She felt like she had been brainwashed. She said they had taken her from the jail to the crime scene, back and forth. She said she was more or less made to lie" about seeing the girl in the car.

Gurley has said she went along with whatever detectives and prosecutors told her to say because she was pregnant, in jail and facing a long prison sentence. The detectives and prosecutors have denied urging her to testify untruthfully.

Higginbotham said he kept quiet about what Gurley told him until 2003, when he met Eric Lee Simmons, who was in the Lake County Jail facing a first-degree murder charge. He said they were talking about death-row inmates and that Simmons mentioned the Duckett case, which had been written about recently in the newspaper.

"I told him it [Gurley] was my ex-girlfriend, and I told him what she told me," Higginbotham said.

Simmons subsequently was convicted and sent to death row, where he was placed in a cell next to Duckett's. When he learned Duckett's identity, Simmons related the story from Higginbotham.

Simmons also testified Thursday.

"He told me Gwen had lied on Duckett," Simmons, 30, said of Higginbotham.

Lawyers for the state objected to the statements from Higginbotham and Simmons, saying they were hearsay and inadmissible. If Gurley was the one who admitted lying, she should be the one taking the stand, not the two men, said Senior Assistant Attorney General Ken Nunnelly.

Duckett's lawyer, Beth Wells, said Gurley still fears the perjury charge.

"If the state is saying it will grant her immunity, we'll get on the next plane to get her to testify," Wells said, adding later that Gurley now lives in Indiana. Otherwise, she said, bringing Gurley in, only to have her refuse again to testify, would be a waste of time and money.

Nunnelly would not say whether he plans to grant Gurley immunity, but he said it would not matter either way. He and Assistant State Attorney Rock Hooker pointed out that former Circuit Judge Jerry Lockett concluded that "Gwen Gurley's recantation is inconsistent, incredible, and unreliable in its entirety, and does not constitute a sufficient basis for the defendant to have a new trial," court documents show.

Lockett, who presided at Duckett's trial, said that Duckett's conviction was based on more than just Gurley's testimony. Other evidence included tire tracks, fingerprints and a pubic hair. Lockett said that even if Gurley had not testified, Duckett would have been convicted anyway.

Still, Duckett's lawyer said a new trial for her client is inevitable.

Gurley's statement is not the only part of the state's case to come into question over the years.

For example, the tire tracks at the crime scene were "consistent" with the tires on Duckett's patrol car but no specific match was ever made.

Teresa's fingerprints were found on the hood of Duckett's patrol car, but they were positioned as if she sat on the hood and scooted backward. The defense has argued that Teresa could have jumped on the hood when Duckett wasn't looking.

In addition, the FBI agent who linked a strand of Duckett's pubic hair to the one found in Teresa's panties was discredited when federal investigators said he had testified falsely in other cases and had exaggerated evidence.

"I'm confident we're going to get a new trial," Wells said.

The Florida Supreme Court sent the case back to Lake County for the hearing and asked that a transcript be sent back for consideration as part of Duckett's request for a new trial.

Duckett's friends and family members are confident, too.

"We don't give up," said Duckett's sister, Sheila Nink, 57, of Lakeland. "He's coming home one day."

Sherri M. Owens can be reached

at sowens@orlandosentinel.com

or 352-742-5915.