Chicago Tribune, Dec. 17, 2000

Death in a Florida prison

subsection of article
3 cases weaken under scrutiny

By Steve Mills, Maurice Possley and Ken Armstrong
Tribune staff writers

Bennie Demps, 49, was executed last June for the 1976 murder of a fellow inmate at Florida State Prison. But ask the investigator on the case just how the murder happened and who was involved, and his answer is that he doesn't know for sure.

"When you have a killing inside a prison, nobody ever knows what happened," Wiley Clark, who investigated the stabbing for the Bradford County state attorney's office, said in an interview. "You're never going to figure out the real truth."

Like most killings behind the concrete walls and razor wire of a prison, the murder of Alfred Sturgis involved characters so seedy that truth and sympathy were equally difficult to find.

When Demps was accused, he, as well as the victim and the key witness, were all convicted murderers. Years earlier, Demps had been sentenced to death for a double murder. But he escaped execution when, in 1972, the U.S. Supreme Court declared capital punishment unconstitutional because it was being carried out in an arbitrary manner. Demps' death sentence was commuted to life.

Until the day he died, Demps claimed prison officials framed him for the Sturgis killing because he had escaped that earlier death sentence.

There was evidence that would have helped Demps, but authorities did not turn it over to Demps' lawyer. That included a report that did not surface until 20 years after the murder--one purporting to describe the dying inmate's identification of his killers. But that report does not mention Demps at all.

Prosecutors said at trial that before Sturgis bled to death, he named Demps, James Jackson and Harry Mungin as his assailants. Larry Hathaway, an inmate serving a 99-year sentence for murder, became a prosecution witness after he reported seeing Jackson stab Sturgis with a shank, while Demps held down Sturgis and Mungin acted as lookout.

Clark, a former police officer, said he was loath to trust eyewitness testimony, and was particularly suspicious of Hathaway, whom prison medical records described as "extremely manipulative" and having a "personality disorder."

Before the trial, Hathaway told an attorney for a prisoners rights group that he did not witness the Sturgis murder. At trial he insisted he did. Then after the trial, three inmates came forward to say that Hathaway was nowhere near the scene of the stabbing.

Finally, in 1994, Hathaway told an investigator for Demps' lawyers that he had lied at trial.

There was no physical evidence linking Demps to the murder, so prosecutors relied largely on the testimony of Hathaway and two prison guards, A.V. Rhoden and Hershel Wilson. The guards testified that Sturgis named Demps as one of his three attackers.

"I told just what Sturgis told me. Nothing else," Rhoden told the Tribune.

The three inmates were convicted in 1978 and prosecutors sought the death penalty for all three. The jury recommended death for Demps and Jackson and life for Mungin.

Even though Demps was not the alleged attacker in the stabbing, the judge gave him death, citing his convictions for the two previous murders. He gave Jackson and Mungin life in prison. Interviews with Jackson and Mungin could not be arranged.

Demps' attorneys never received a letter written before the trial by Bill Beardsley, the prison official who oversaw the murder investigation. The letter criticized Hathaway for his "fabrication" in another investigation and could have been used by Demps' lawyers to question Hathaway's credibility.

Lawyers also were never given a copy of a one-page report from chief inspector Cecil Sewell that was written the day after Sturgis died and sent to Secretary of Corrections Louie Wainwright. It said that "before Sturgis died, he named James Jackson, B/M, #029667, as his assailant." Demps and Mungin are not named in the report, which surfaced 20 years after the murder.

In an interview with the Tribune, Wainwright, who retired in 1986 after 24 years as secretary, said the report was meant to apprise him, in detail, of incidents at the state's prisons. "It should have been fairly detailed," Wainwright said. "It should have had all three inmates."

Demps' attorneys also argued on appeal that Hathaway, for his testimony, received undisclosed benefits that would have provided him with ample incentive to lie.

To buttress their argument, they cited a letter Beardsley wrote a year after Demps was sentenced to death. That letter supported "special parole consideration" for Hathaway, even though he had served only four years of his 99-year sentence. Beardsley, who described Hathaway as an informant and critical witness, made another parole request for Hathaway in 1983, according to his letters.

Now retired, Beardsley said those letters were not tied to a deal for Hathaway's testimony.

The investigation of the murder of prison inmate Leroy Colbroth, seven months after the Sturgis killing, also produced information that could have helped Demps. That, too, was kept from Demps' lawyers.

Colbroth, who was known as "99" because he was serving a 99-year term for armed robbery, ran gambling, loan-sharking and drug operations in the prison, according to his prison records. Before he was killed, investigators had identified him as a leading suspect in two prison stabbings, one of them fatal, the records show.

During the investigation of Colbroth's murder, several inmates swore in depositions that Colbroth was killed because he had stabbed Sturgis. Other inmates later said that they saw Colbroth kill Sturgis or that he admitted killing him.

Some of those inmates wanted to help Demps, but did not, saying in sworn affidavits that prison officials either threatened them with retribution if they testified or offered incentives, such as transfers or shorter sentences, for refusing.

The two inmates charged with killing Colbroth were acquitted.

Thomas Elwell, who prosecuted Demps and Colbroth's alleged assailants, declined to be interviewed unless he was paid. He became a judge in Gainesville but resigned in 1992 amid an investigation into allegations that he removed price tags from merchandise at a Pic 'n Save department store and replaced them with lower price tags. He was not charged.

Since he has been in private practice, he has been suspended four times by the state bar for violating conflict of interest rules and for financial irregularities, according to disciplinary records.

Demps' appellate lawyer, Bill Salmon, sought a new trial from the Florida Supreme Court. But the court refused, saying that although prosecutors perhaps should have turned over the chief inspector's report, it did not necessarily clear Demps. "Assailant," the court said, might have referred only to Jackson, because he was identified as the inmate who wielded the shank.

On the day Demps was executed, the window to the execution chamber opened to reveal the condemned man lying on the gurney with a white sheet draped over his chest and legs. Angrily, he chastised officials who had cut deeply into his leg to find a vein suitable to carry the lethal injection.

"They butchered me back there," Demps declared to witnesses. "This is not an execution, this is murder. I am an innocent man."

Gerald Kogan, who was chief justice of the Florida Supreme Court, found the case troubling, even though he did not vote to give Demps a new trial.

"I had grave doubts about Bennie Demps," said Kogan, now retired. The case "keeps coming back and back and nothing new is raised. But you can't do anything after a while."