Mock Trial Fuels Push for New One
A judge ruling in the case must decide whether to consider an acquittal by mock jurors who weighed new DNA evidence in a 1985 murder.
By JENNIFER LIBERTO, Times Staff Writer
Published December 14, 2003
BROOKSVILLE - Paul Hildwin's latest chance to get off death row may lie in some eight hours of videotape.
The 43-year-old, who was sentenced to death in 1986 for the murder of Vronzettie Cox, is asking a Hernando County circuit judge to consider new DNA evidence that excludes him and to grant him a new trial. The DNA evidence was taken from bodily fluids from a pair of panties and washcloth used in the original trial.
But Hildwin must first prove to Judge Richard Tombrink that the new DNA evidence would "probably" acquit him in a new trial.
To meet that speculative standard, Hildwin's defense attorneys are breaking new ground. They turned to a Tampa consulting firm, which produced mock trials to weigh the value of the new DNA evidence. Mock jurors from Hernando County acquitted Hildwin in trial simulations when they considered the new DNA evidence presented in a shortened version of the 1986 trial.
Using a mock trial to prove a legal standard like showing the significance of new evidence could be a first, legal experts say. And Tombrink refused to watch the videotapes of the mock trials until defense attorneys show that there is a legal precedent or basis for the simulations.
"I'm intrigued," Tombrink said. "This is incredibly unique and novel, and I've never heard of such a thing. I really want to make sure I take the right approach on it."
On Sept. 9, 1985, Cox, a 42-year-old wife and mother who had left her family in Ohio to live in Hernando, gave Hildwin a ride after he ran out of gas along U.S. 19. Her naked body was found four days later in the trunk of her car in woods not far from Hildwin's home off Knuckey Road. She had been strangled by a T-shirt that was found tied around her neck. Evidence, including a torn bra, indicated that she may have been raped.
During the original 1986 trial, one of the more damaging pieces of evidence came from semen taken from Cox's panties and saliva taken from a washcloth. Both were found in a laundry bag in the back seat of the victim's car.
Prosecutors said the samples showed that Cox had been raped and murdered by a nonsecretor.
Most of the world's population are secretors, which means they secrete blood in bodily fluids. Hildwin is among the 22 percent of the population, including women, who, as nonsecretors, don't secrete blood into bodily fluids.
In 1986, prosecutors presented an FBI analysis that said Hildwin's blood type matched 11 percent of the population who are male nonsecretors that could have raped and murdered Cox.
It was the only physical evidence presented at the trial that linked Hildwin to a rape and murder. And the new DNA tests show that neither the semen nor saliva sample came from Hildwin.
"It was extremely misleading," said David Hendry, an attorney with the Capital Collateral Regional Counsel state office, during a case management hearing on Dec. 2.
However, there was other evidence.
Hildwin had cashed a forged check for $75 that came from Cox's checkbook. A witness testified that Hildwin was driving Cox's car when he cashed the check. Police found Cox's radio and a ring in Hildwin's home. A piece of Hildwin's hair was found in the front seat of Cox's car.
Since the results of the DNA tests came back, prosecutors say that the washcloth and panties are irrelevant to the case.
In a September filing, the state attorney's office pointed to the closing statement made by then assistant state attorney Tom Hogan:
"I'm not asking you in any way, shape, or form to convict the defendant, Paul Hildwin, based on those panties and wash rag. What I am telling you is that it is one more block. It is one more piece of evidence that leads to Paul Hildwin."
Assistant Attorney General Ken Nunnelley urged Tombrink not to consider the new DNA evidence.
"Even if you take out the panties and the washcloth, you still have a strong case," Nunnelley said. "Hildwin would now have you undo what a jury did on a theory that somehow the panties and the washcloth are the killer."
Before Tombrink will even consider the DNA evidence, Hildwin's attorneys must prove that the DNA evidence is powerful stuff.
They've got to meet what's commonly called the Jones standard, which originates from Jones v. State. The 1991 Florida Supreme Court decision slightly lowered the bar by which newly discovered evidence can be considered. New evidence doesn't have to exonerate, but it does have to convince a judge that it would "probably produce an acquittal on retrial."
How do you legally prove probability?
Hildwin's attorneys turned to Harvey Moore of Trial Practices Inc. in Tampa, who has made a career of studying what makes jurors tick.
A former University of South Florida sociologist who specialized in sociology of law and criminology, Moore conducts trial simulations nationwide, often to help prepare attorneys either before or after a trial.
Although Moore has conducted mock trials to advise courts on issues over the years, this was Moore's first trial simulation to specifically aid a post-trial motion.
Moore took up the challenge free of charge. He created juries of Hernando County residents, who were paid about $10 to $15 an hour for their night and weekend work.
First, he recreated the original trial crunching six days of witness testimony and exhibits into about an hour. Mock trial jurors decided Hildwin was guilty. Seven of the 12 jurors ranked the secretor evidence as a top reason for their verdict.
Moore recreated a second trial introducing the DNA evidence. In the videotape, the state's strategy remains the same as in the first trial. But, the defense introduces the DNA evidence to rebut the state's testimony about Hildwin's nonsecretor status that includes him among the 11 percent of the male population who could have raped and murdered Cox.
Most jurors, 18 of 23, who participated in the trial simulations with the new DNA evidence found Hildwin not guilty.
"This isn't rocket science; it's very simple. Here's what the people said, and the evidence almost speaks for itself," Moore said. "It's not a prediction of what would happen in a retrial as much as it is a measure of the impact on justice."
Hildwin's attorneys said the report from the mock trials shows that the newly discovered evidence would probably result in an acquittal.
They also asked Tombrink if they could present testimony from Moore to meet the Jones standard. They submitted four videotapes of the trial simulations and deliberations and a report into the court record.
Nunnelley asked Tombrink not to review the simulation tapes and report, especially since the mock trials cannot replicate an actual trial.
"This is not appropriate; we do not try cases by doing jury simulations," Nunnelley said. Both he and assistant state attorney Rock Hooker said they had never heard of using jury trial simulations in a request for an evidentiary hearing.
In fact, several legal experts said they've never heard of using mock trials to weigh the value of new evidence in meeting the Jones standard. Traditionally, judges determine the Jones standard based on speculation, said Chris Slobogin, a professor of criminal law at the University of Florida in Gainesville.
Mock jury trials present many problems, since they've been arranged by the litigant and cannot replicate the original trial, Slobogin said. However, Slobogin did call the mock trials clever.
"It does at least give you pause that it would have made a difference to a jury," he said.
Hildwin is still a long way away from getting a new a trial based on the DNA evidence. Attorneys will spend the next few months preparing their arguments on whether or not Tombrink should consider the mock jury trials. Then Tombrink will rule whether or not Hildwin should get a hearing on the DNA evidence, which would then determine if Hildwin deserves a new trial.