Update Oct. 20, 2016:
The Florida Supreme Court has upheld a lower court's ruling to give Jacob John Dougan a new trial.
Here's the money quote from the Florida Supreme Court's ruling:
We affirm the postconviction court’s granting of a new trial to defendant Jacob John Dougan, Jr., for a 1974 Jacksonville murder because of multiple significant problems in his trial, including the false testimony of the key witness against Dougan, and the actions of his own lawyer who was laboring under a conflict of interest that adversely affected his performance at trial.
Below, you'll find a story by the Florida Times-Union's Larry Hannan from Nov. 30, 2013 written after a circuit court ordered a new trial.
The man convicted of one of the most notorious killings in Jacksonville history may soon get off Death Row and get a new trial. It has been 38 years since he was found guilty in a murder that prosecutors said was designed to start a race war.
Jacob John Dougan, 66, had his conviction and sentence thrown out earlier this year by Circuit Judge Jean Johnson in the death of 18-year-old Stephen Orlando in 1974.
Johnson’s 239-page ruling found that Dougan’s original trial attorney, Ernest Jackson, had a conflict of interest because he was cheating on his wife with Dougan’s sister, Thelma Turner, at the time of the trial. Jackson later left his wife and married Turner.
The judge also found that the prosecutors hid evidence of a deal they had with another defendant in the case, William Lee Hearn, who testified against Dougan.
Orlando’s mother, Marian Mallory, told the Times-Union she plans to be in court every day if Dougan goes to trial again. But her view of the government has changed radically over the years.
“Back then I had faith in the system,” Mallory said. “Now that faith is gone.”
State Attorney Angela Corey and Florida Attorney General Pam Bondi are appealing Johnson’s ruling to the Florida Supreme Court. But if the Supreme Court upholds the ruling, prosecutors will have to figure out how to prosecute Dougan four decades after Orlando’s death.
That will be very hard to do, said George “Bob” Dekle, former prosecutor of serial killer Ted Bundy and now a law school professor at the University of Florida,
“People die, memories get fogged, evidence is lost,” he said. “It’s very difficult to put everything back together so long after the original case.”
Assistant State Attorney Stephen Siegel said his office would not comment on the particulars of the case.
“As the matter is now on appeal I do not believe it would be appropriate to comment beyond saying that while the state respects the court’s order, the state is seeking review of various appellate issues arising out of this difficult and complicated post-conviction relief proceeding,” Siegel said.
JoAnn Orlando, Stephen Orlando’s sister, is succinct about how she would react to Dougan going on trial again after all these years.
“That depends on the result,” she said. “But our family still hopes to see him executed.”
A DIFFERENT TIME
There are 403 people on Death Row right now in Florida. While five people have technically been awaiting death longer than Dougan, the June 1974 murder of Orlando happened before any of the other crimes.
Dougan and a handful of accomplices who called themselves the “Black Liberation Army” went out to kill a white person to protest racial inequality in the Jacksonville area. Orlando had been hitchhiking home from his job because his car wasn’t working when he was picked up by the group.
His body was found on a dirt road at a trash dump in St. Johns County that is now part of Marsh Landing Country Club. The Jacksonville Beach 18-year-old was stabbed 12 times in the chest, stomach and back, and then Dougan placed his foot on Orlando’s neck and fired two bullets into his head.
Dougan and his followers also sent tape recordings to Mallory and media outlets describing how Orlando begged for his life.
“You should be proud your son was the first to die for our black cause,” the tape to the mother said, according to news reports at the time.
The viciousness and cruelty of those tapes show that Dougan is a remorseless killer who deserves to die, Mallory said.
“He bragged about killing my son and said I should be proud,” she said. “What type of animal does that?”
Four days after Orlando’s body was found, the body of Stephen Lamont Roberts, 17, was found shot and stabbed numerous times behind a Seventh Street industrial plant in Springfield. Dougan was never tried in the case after he got the death penalty for Orlando’s death.
During his trial, Dougan testified that he had not participated in killing Orlando but admitted making the tape recordings. He said he was trying to spotlight the racial inequality that existed in Jacksonville.
Circuit Judge R. Hudson Olliff sentenced him to death.
Jacksonville historian James Crooks said the trial occurred during a tense time in Jacksonville history.
National stories on the Black Panthers and other racial unrest scared the white majority in Jacksonville, and people were afraid about what might happen next.
“When this happened it confirmed a lot of fears that white people had,” Crooks said. “There was a strong desire to find this person and get them off the streets.”
The question of why this happened wasn’t important to most people, even though Dougan had come from a prominent African-American family and hadn’t been seen as a troublemaker before this happened.
“To this day we really don’t understand why this happened,” Crooks said. “And the odds are we’ll never understand it.”
Through his attorney, Dougan declined to be interviewed.
The Florida Supreme Court threw out Dougan’s death sentence twice, in 1978 and 1984, and ordered him resentenced.
The sentence was overturned in 1978 because Dougan hadn’t had a chance to review his pre-sentencing report. In 1984 justices said the state was wrong to tell the original jury about the Roberts murder when Dougan wasn’t on trial for that crime.
Olliff put him back on Death Row both times, at one point comparing Dougan’s plan to kill white people with Adolf Hitler’s plan to exterminate all Jews in Europe.
A VERDICT SET ASIDE
In her ruling setting aside the conviction, Johnson appeared to be especially troubled with the role that co-defendant Hearn played in the 1975 trial. Five people were convicted of the crime: Dougan, Hearn, Dwyne Crittendon, Elwood Clark Barclay and Brad Evans.
Barclay’s death sentence was thrown out on appeal and he was resentenced to life; Crittendon’s presumptive parole date is May 3, 2161; Evans was paroled Oct. 24, 1989, after serving 14 1/2 years of his 199-year sentence.
But Hearn was allowed to plead guilty to second-degree murder and testified against Dougan and the others at trial. In his motion for a new trial, Dougan’s attorneys argued that the state cut a deal with Hearn where he was promised minimal incarceration time in exchange for his testimony.
That deal was never revealed to Dougan or his lawyers during the original trial, and the jury also didn’t know about it when they were considering the validity of Hearn’s testimony, said Dougan’s current attorney, Mark Olive.
Hearn was the only eyewitness to the crime who admitted he was there, and prosecutors acknowledged he was essential to getting convictions against the others.
While testifying against Dougan, Hearn said he expected prosecutors to try and put him in prison for the rest of his life. He also said the deal he cut with prosecutors was designed to avoid getting the death penalty.
Hearn could not be reached for comment, but according to court records he was reluctant to testify again during the 1987 resentencing of Dougan.
During Dougan’s 1975 trial, Assistant State Attorney Aaron Bowden referred to Hearn as a scoundrel and a murderer. State Attorney Ed Austin told the jury that he wished he had a better eyewitness than Hearn, but he said what Hearn testified to was backed up by the physical evidence.
After Dougan and the other defendants were convicted, Hearn was sentenced to 15 years at the request of prosecutors. During Hearn’s sentencing hearing, Bowden called Hearn a “gentleman who got mixed up with the wrong crowd, and not someone who had a criminal mind.”
He was paroled in 1979 after serving less than five years. Austin and Bowden both wrote letters supporting Hearn for early parole.
In her ruling Johnson said there is enough evidence to suggest that Hearn knew he wasn’t getting life and lied to the jury. She also faulted the prosecution for not acknowledging that.
“The state’s failure to disclose this information may have impacted the jury’s decision in regard to Mr. Hearn’s credibility,” Johnson said in her ruling.
In a motion asking Johnson to reconsider her decision, prosecutors argued that the real deal was allowing Hearn to plead guilty to second-degree murder, guaranteeing that he would not face the death penalty, and the defense and jury knew about that.
Bowden could not be reached for comment. Austin died in 2011.
Rod Sullivan, a professor at Florida Coastal School of Law who has studied the Dougan case, said a potential deal with Hearn was not enough to throw out the conviction.
“Every reasonable juror understands that a cooperating witness gets a lighter sentence because he is giving testimony in the prosecution of his co-defendants,” Sullivan said. “I think that the error, if there is one, was harmless.”
AWKWARD CONFLICT OF INTEREST
Another troubling matter is that soon after Ernest Jackson agreed to defend Dougan, he began having an affair with Thelma Turner, Dougan’s sister.
In court filings Dougan said he was unaware of the relationship until after he was put on Death Row and would have requested a new lawyer if he’d known about it.
Olive said the situation created a conflict of interest because Turner was ashamed of her brother, and Jackson tried to shield his lover and her family from public scrutiny rather than defend Dougan. Turner also kept Dougan’s family from testifying during the penalty phase to avoid revealing painful family secrets such as Dougan’s mother being an alcoholic and his father being a philanderer who fathered a child with another woman.
Those issues could have been used as mitigation to argue that Dougan shouldn’t get the death penalty.
A conflict also existed because Jackson’s wife, Lougenia Jackson, was his legal secretary. She was assisting her husband on the case of the man whose sister was ruining her marriage. Olive argued that Lougenia Jackson began to despise Dougan and his family as her marriage was breaking up.
After they were divorced, Lougenia Jackson testified she walked in on her husband and Turner having sex in the office library one night. The two women would later have several physical altercations with each other, and people who worked in the office testified that they often heard Ernest Jackson and his wife having loud arguments about the relationship.
Other attorneys working in the office also said Ernest Jackson was distracted by the affair and his mind was not on the case. Jackson, who was prominent in the civil rights movement in the 1950s and ’60s, died in 1979.
Johnson ruled the situation was clearly a conflict of interest for Jackson, and he should not have been defending Dougan.
Harry Shorstein, who succeeded Austin as state attorney, said the entire situation is a travesty.
“If you’re sentenced to death in 1975 and you haven’t been executed in 38 years, something is wrong with the system,” Shorstein said.
Around 2005 Shorstein sought a deal that would get Dougan off Death Row under the provision that he would be resentenced to life in prison with no chance to ever get out. Some family members of the victims were supportive, while others opposed, and Shorstein said he didn’t feel comfortable cutting a deal without the full backing of the families.
It’s unlikely Dougan will ever be executed, no matter what happens now, Shorstein said.
JoAnn Orlando said her father and stepmother supported that deal, but she, her mother and her sister, Wendy Barkoskie, were against it. The father, Everett Orlando, is ill and the family members asked the Times-Union not to contact him for this story.
While Orlando hopes to see Dougan executed, Barkoskie said she no longer thinks it will happen. But even if he’s never executed, Dougan should remain on Death Row.
“Three different juries recommended he be sentenced to death,” Barkoskie said, referring to the jury in the original case and juries that recommended death in both resentencing hearings. “I know they’ll never execute him, but it’s another travesty of justice to let him off Death Row.”
And Dougan is still a threat to her family, and the public, Barkoskie said.
Olive said his client is still willing to consider an agreement that would bring this issue to a conclusion, but no offers are on the table.
But JoAnn Orlando said her family continues to suffer from what Dougan did.
“We have several relatives now that are named after my brother,” Orlando said. “Sometimes I look at them and wonder where Stephen would be now if he’d lived.”
Would he be a grandparent? What car would he drive? Would he have gone into the Army?
“Those are questions I’ll never have an answer to,” Orlando said. “And that’s because of what Jacob Dougan did to my family.”