A girl is murdered, evidence ignored. Is the wrong man in prison?

Second of two parts

Marshall Frank, a Miami-Dade cop who supervised 3,000 homicide investigations, retired in 1990, began to write novels, and by chance discovered what he believes to be an innocent man on Florida's Death Row, James Duckett.

Convicted in Lake County in 1988, Duckett, now 45, is accused of the rape-murder of an 11-year-old schoolgirl, Teresa McAbee. Duckett was a rookie cop in the small town of Mascotte on the night of the crime, May 11, 1987. He questioned the girl at a Circle K about 10 p.m., he said, and sent her home -- about 400 feet from the store. She was found strangled and drowned the next morning.

Scrutinizing the case 16 years later, Frank, 64, concludes that the prosecution misinterpreted fingerprint evidence, fumbled both a tire cast and pubic hair identification, and failed to pay attention to exculpatory testimony.

During the trial, the state produced a teenager who testified by video that she was in the convenience store with two friends the night of the murder and saw the victim get into Duckett's patrol car before it drove away.

Gwen Gurley came to the attention of Lake County investigators a month after the murder. She was 16 and in jail for violating probation for felony theft.

Just a few days prior to trial, the state took her testimony in a videotaped deposition in the judge's chambers. She was nine months pregnant.

Supposedly, two friends of Gurley were with her that night. But they don't corroborate her testimony. Neither testified. One, Vickie Davis, then 15, now serving time for aggravated battery, later gave a handwritten statement, saying Gurley confided that she lied about seeing Teresa leave with Duckett. She lied, she said, to get out of jail and have her baby.

In post-trial statements, Gurley herself admitted she lied. The teenage trio were in and out of the store that night. They saw Duckett's police car at one point but never saw him leave with Teresa. Gurley said the detectives took her from jail, fed her meals, took her for visits with her boyfriend and her mother, and took her to the Circle K, coaching her on what to say and how to say it.

They told her, Gurley said, that if she became confused by a question during the videotaped deposition, she should ask for a bathroom break so they could coach her. On the videotape, she asks to be excused to use the bathroom.

During an evidentiary hearing 10 years after the crime, trial judge Jerry T. Lockett recommended that Gwen Gurley be granted immunity from perjury prosecution in order to secure her testimony. Prosecutor Don Scaglione refused.

''It would seem that the wrongful execution of an innocent man would take priority over a perjury charge,'' Frank says. Perjury in a capital case carries a stiff prison sentence. Gurley, threatened by prosecutors with perjury, didn't take that chance. She took the Fifth Amendment.

TERESA'S PENCIL

Broken in two, it

was found days later

The state entered into evidence a pencil found near the lake. Supposedly it was the one Teresa bought that night, implying that she never went home from the convenience store after buying it.

But the pencil, broken in two, wasn't found on May 12. A sheriff's investigator reported finding it May 21, nine days later. It was reportedly overlooked during a search that took hours at the time of the crime. It wasn't visible in any crime-scene photos. Furthermore, the pencil showed no signs of exposure to weather conditions for nine days.

During the trial, the state came up with three young women -- Kimberly Sheree Fowler, 16, Shelby Dow, 19, and Linda Dale Upshaw, 17. They testified that Duckett had solicited them for sex while on patrol. None filed a complaint. Even so, their testimony proved damning. When Duckett took the witness stand, he vehemently denied their allegations. One accuser gave a time when he wasn't on duty.

Rocky Harris, the lead investigator, couldn't remember how he found the witnesses. ''Someone must've told me,'' he told Frank. Since the trial, rules for admissibility have changed. The testimony probably would not be allowed today.

Louise Braswell, a clerk at the Circle K, found the testimony of the three young women hard to believe. ''I never saw him hanging around flirting with girls, young or old. He was also very proud of his wife and children.'' When he was off duty, she said, ``he brought them into the Circle K and introduced them to us.''

Duckett's former Mascotte boss, Chief Mike Brady, always believed his man was innocent. ``Duckett was a good cop. Not the sharpest knife in the drawer, but a good and decent man.''

DUCKETT'S LAWYER

A showy, Buffalo Bill

kind of character

Marshall Frank is highly critical of Duckett's defense lawyer, the late Jack Edmund, a flamboyant and prominent Polk County lawyer.

Duckett's mother mortgaged her home to pay him. His fee: $58,000.

Edmund, a Buffalo Bill sort of character, sported a jaunty cowboy hat, goatee and bolo tie, and he took a retainer and questioned his client in jail in October 1987. Duckett said he never saw his lawyer again until the first day of his trial five months later.

Edmund never took a deposition from anyone involved in his client's murder case. ''He winged it,'' Frank says. ''Sometimes I think Jack Edmund was working for the other side.'' He even failed to show up for the videotaped deposition of Gwen Gurley, the state's star witness. In his place, Edmund sent Nathaniel White, a young lawyer who shared his office space and had nothing to do with the case.

Edmund knew about Peter DeForest, the independent criminologist and hair-fiber expert who disputed the hair identification. But, in another strange move, Edmund did not call him.

Neither did he make an effort to obtain Duckett's notebook, which contained entries detailing his whereabouts during crucial times the night of the murder.

Frank finds the notebook intriguing. ''Like any good cop, he took notes the night he questioned Teresa and her Mexican friend [whom she was seen huddling with behind a Dumpster at the Circle K].'' He wrote down their names, addresses, dates of birth and clothing description.

THE SHIRT QUESTION

Did the victim

go home to change?

According to Duckett's notes, Teresa was wearing a blue-green knit top. Her body was found wearing a tan and white striped shirt. That led Frank to believe that after Duckett questioned her, ``Teresa had to have gone home. She changed clothes. And she was found fully dressed after being assaulted.

``I have never seen a killer kind enough to allow a victim to redress before killing her. My gut feeling is that she was assaulted at the house, maybe strangled unconscious there, and then taken down to the lake. It is just down the road and across the street in an old orange grove, about 1,200 feet away.''

At first, Teresa's mother could not recall what her daughter was wearing. Teresa often changed clothes five or six times a day, she said. McAbee's initial description had her daughter wearing a flowered halter top. Not until after the police told her what the corpse was wearing did she correctly describe the dead girl's garb.

Duckett's notebook was never entered into evidence. Frank believes he knows why: because it contained information that might have exonerated him. The notepad was found in the police property room during the appeals process, long after the trial.

Two other entries in the notebook gave Frank pause. Both provided witnesses who could have vouched for Duckett's whereabouts around the time of the murder. Neither was called to testify.

CRUCIAL TIMING

At the time of the crime,

officer seen elsewhere

At 10:58 p.m., Duckett responded to a call at the Jiffy Stop convenience store to find out why the phone line was constantly busy. Store clerk Rebecca Crawford had accidentally knocked the telephone receiver off the hook. Duckett recorded the time. Crawford verified the incident and time.

Between 11:05 p.m. and 11:15 p.m., Duckett returned to the Circle K to retrieve his coffee cup that he'd left behind earlier. Store clerk Shirley Williams verified his story.

How could Duckett have been at the Circle K and the Jiffy Stop at those times if he was somewhere else, raping and killing a child? Frank asks.

Even more important is another eyewitness never called to testify. Richard Paul Reynolds, then 30, was at the laundromat next door to the Circle K. About 10:30 p.m., as he sat by the window waiting for his laundry, he watched Officer Duckett talking with Teresa in the parking lot. He saw Duckett drive off alone. The child paused for a moment as though waiting for someone to pick her up.

So Reynolds was not surprised, he said, when a ''little blue car'' pulled up beside the girl. He said the girl spoke to the driver, then got into the car, which drove away in the direction of her home. Reynolds told a Lake County detective exactly what he saw several days later.

In a 1992 affidavit, Reynolds said, ''I told them all that I knew, and I was willing to testify. I don't know why they didn't call me.'' Frank noted that Rocky Harris, the lead detective, never wrote a report about it.

NOT A `VACATION'

A Death Row life

for the last 15 years

After the conviction, Edmund told his client: ''Jim, just think of this as a long vacation. I will have you out in less than two years.'' Duckett was convicted on May 19, 1988, and Judge Lockett sentenced him to death on July 1, 1988, Duckett's 11th wedding anniversary.

On Death Row ever since, he has outlived his lawyer, his mother and his marriage. His mother died. His wife divorced him. And Edmund was killed the night of March 7, 2002, when he made a fatal lane change in his Lincoln Navigator. He was 76. An obituary called him ``the Matlock of Polk County.''

''Too bad they didn't know what a rotten lawyer he really was,'' Frank says. Edmund died in debt, leaving hundreds of thousands of dollars in unpaid income taxes, interest and penalties.

Teresa McAbee's short life was not an easy one. She had made no secret of her wish to live with Pat and Wayne Butler, an aunt and uncle in nearby Croom-A-Coochee, about 10 miles from Mascotte.

She begged them, according to the Butlers, saying she disliked living with her mother, who drank too much and whose Mexican boyfriends made frequent sexual advances toward her.

She told the Butlers that she was frightened by a man she called ''Peeples,'' who often groped her and would try to pull her onto a couch. The man, who frequented the house, left Mascotte shortly after the crime.

Lake County detectives didn't consider either Peeples or other visitors to the home as possible suspects, Chief Brady said. He suggested that they should. The home was never searched.

STRANGE COINCIDENCE

How Teresa's aunt knew

that girl was `in the lake'

In a 1992 affidavit, Teresa's uncle Wayne said, ''I remember when I got the news about [her] disappearance.'' Butler was at the auto body shop where he worked. ''I always got there early so I could open up.'' Shirley Fernandez, Teresa's aunt who lived in the house with the McAbees, ``called me sometime between 7 and 7:30 a.m. to tell me about it.

``She said they thought Teresa had been killed and she was probably in the lake. This conversation always puzzled me. How could she know all this before Teresa's body was discovered at 9 a.m.?''

The family was not notified of her death until after 11 a.m.

''The aunt either knew something, or she's Florida's premier psychic,'' Frank says.

Frank believes the Lake County Sheriff's Department blew the case in not running down other leads. Besides the man who frequented the McAbees' house, the Mexican youth at the trash bin should have been a suspect. The teen, Salvador Calisto, returned to the Circle K after midnight and, according to the clerk, used a pay phone in an agitated state.

DIFFERENT LEADS

Various men were seen

with the murdered girl

Another man, Charles Partain, was seen at the Circle K the night before the murder, hugging and kissing Teresa and giving her money to play video games. He and his brother, Lewis, were friends of the girl's mother.

''The Partain brothers came in the store and Charlie Partain was hugging and kissing on Teresa and gave her some money,'' clerk Louise Braswell swore in an affidavit.

``I did not trust these men . . . because I knew they were drunks and had bad reputations. Around this time, the Partains were driving a blue car.''

Apparently, they left town shortly after the crime.

No one made any attempt to trace a blue car. Neither did anyone take statements from the Mexicans at the McAbee house and Circle K. ''Nothing exculpatory is in the file,'' Frank says. A police officer noted scratches on two Mexicans but did not list their names.

Years later, Braswell testified that she had often seen Teresa at the Circle K late at night. She mentioned an unidentified heavy-set Mexican with a harelip who gave Teresa money. Teresa ''evidently was friends with many older Mexican men because she would get money from them to play the video machines. Many times, I saw her go out to a car to get money from some men and then come in and play the games,'' Braswell said.

``I was worried that she was going to get in trouble hanging around with these men and being out so late, so I complained to two Mascotte police officers about her. This happened one night when she was hanging out by the Dumpster with the heavy-set Mexican man with the harelip. He was an older guy, 21, if a day. This happened shortly before the little girl was killed. I never saw the Mexican man with the harelip again. I would have come to the trial and testified if anyone asked.''

PHYSICAL EVIDENCE

If she was a virgin,

where was the blood?

Other inconsistencies bother Frank.

Despite the medical examiner's reports that the virginal Teresa would have bled profusely from a tear in her vagina, no blood was ever found, not on Duckett's police car, not at the trash bin, not at the site where she was found, and not overly so on herself.

If Duckett was guilty, wouldn't he have tried to wash away the evidence after his shift? Frank asks. Particularly the palm prints on the hood?

''Even if he had been a closet pervert,'' Frank says, ``it's simply implausible that James Duckett, an on-duty uniformed police officer, would take a child into his highly visible police car in an area that could easily yield witnesses, with the intent to rape and kill her just a few hundred feet from her house.

``It is also implausible that he would sexually assault her at the lake, then take the time to let her get dressed before killing her. It's even more implausible that he would take her home to change her shirt.

''I know how cons all say they are innocent,'' Frank says.

'I am not a gullible person and I am not on some `anti-capital punishment' crusade either. This is not intended to be a crusade. Fact is, this man did not kill that girl.''