At the Hands of a Stranger (25 page)

After much legal wrangling and arguments back and forth between the defense and the prosecution, with the trial delayed while the defense's claims of not having enough time to prepare were heard, Hilton's trial date was finally set for July 12, 2010. A continuance was granted, however, and the date was set once again, this time for January 31, 2011.

As that time drew nearer, Suber still contended that she hadn't had time to deal with all the witnesses. She told the press she had interviewed around 150 people, but had “hundreds more” to talk to before the trial. She argued that in a death penalty case, it was her job to find out what each of those witnesses would be testifying to.

“Back in June, I told the court there was absolutely no way” to be ready for trial by January, she told the media. Suber filed a motion asking circuit court judge James Hankinson for a continuance until April 2011. The judge responded that he would hear arguments on her motion on October 22, three months prior to the time set for the trial to begin.

“This isn't rocket science. They should be ready,” said Georgia Cappleman, the prosecutor. “They may be trying to wear us down so we'll offer a life sentence, but that's not going to happen.”

When time came for the arguments to be heard, Judge Hankinson denied the motion for a continuance, despite Suber's claims that she needed more time to prepare. Hankinson said that he felt three years was plenty of time to prepare for a murder case, and his decision on the January 31, 2011, trial date would stand.

Suber was disappointed, but not surprised, according to her statement to the press following the hearing.

“[Judge Hankinson] knows the importance of allowing enough time for the lawyers to prepare,” she said. “His decision is that I have had enough time. I disagree respectfully with him.” She went on to say her reason for needing more time was because she had not been able to get to the 632 witnesses expected for the trial. She also claimed that the prosecution had not given her all the documents required to be turned over to her; therefore she would be neither ready nor “efficient” to go to trial in January.

Cappleman, however, said the prosecution had fulfilled all their obligations to turn over all the required documents to Hilton's attorneys.

 

After only a couple of weeks passed, in mid-November, another session of court appearances began. This time these were not attempts to postpone the trial, but rather an extension of arguments that were initially held behind closed doors over where Hilton should be taken for a battery of pretrial mental-health tests. Suber told the court that she had contacted scores of medical facilities all over Florida, and there was no closer, qualified place to send Hilton for the testing than Gainesville. The prosecution objected, on the grounds that the tests could be done in Tallahassee without posing the security risk that a trip all the way to Gainesville would produce.

Judge Hankinson issued a ruling that the location of Hilton's testing should be made public, but the time and date would not be. This came in response to an argument by attorneys for WCTV, a CBS affiliate, and the
Tallahassee Democrat
who contended that the hearing should not be held behind closed doors.

At the hearing, officers who had been in recent contact with Hilton testified, as well as Leon County Sheriff's Office lieutenant Tim Baxter, one of the deputies who brought Hilton back to Florida after his extradition was approved in 2008. He described the trip's security measures, saying that three deputies rode in Hilton's car that day, with another car in front and two additional cars behind them. Their route was planned in advance, he said, along with one rest break, and Hilton was put in handcuffs, a waist chain, and leg irons. The prisoner remained relatively quiet during the trip, he said, with no threats or other problems.

The court then heard from an officer supervising Hilton at the Leon County Jail, who said he was posing no problems there, but said he was on what he called confinement status, used for high-risk inmates. Hilton was in a cell by himself, checked every thirty minutes, and only allowed out of his cell for an hour each day. Most of the prisoner's time, said the officer, was spent sleeping and reading.

When Prosecutor Cappleman addressed the court, she argued that taking Hilton to Gainesville would not only be a risk to public safety, but a “great expense and a great burden” to law enforcement.

The judge settled the matter by ordering the defense, the prosecution, and a representative from the sheriff's office to meet, go over all their available options, and come up with a plan to transport Hilton for his testing, and to have their plan ready by the week after Thanksgiving.

The hearing to present their plan to the judge was canceled, however, when the group successfully came up with a suitable plan. The details of the arrangements were not announced, and that began a great deal of speculation on the scores of Internet crime blogs. Hilton might not be held in the Leon County Jail at all, one entry said, and might not even be in Florida. Another claimed to have “inside information” that Hilton had been taken in secrecy to Shands Medical Center in Gainesville. Other bloggers complained about the defense's continual delaying tactics, motions, and requests.

 

But right after it was disclosed that there had been an agreement in the transport plan, Hilton's attorneys were back with yet another motion aimed at the news media and their right to inform the public.

Ines Suber had already made it clear that she felt all proceedings prior to the actual trial should be closed to the public. She claimed Gary Hilton had gotten far too much publicity already. If the pretrial hearings were to be made public, she was expected to request a change of venue for the trial. Attorneys for the
Tallahassee Democrat
and WCTV felt this was an overreaction on Suber's part. They said that publicity for the case had cooled down after three years, so their contention was that the request for a closed courtroom was unreasonable.

During the hearing Suber called an investigator for the public defender's office to the witness stand and spent over an hour relating the thousands of items posted about Hilton on the Internet and other sources. There were 150,573 online name views about Hilton evidence, she said, and only 141,526 available jurors in the county. Almost everyone, she said, knew about Hilton, the murder of Cheryl Dunlap, and Hilton's earlier conviction and the suspicion that he was responsible for several other deaths or disappearances.

Suber told the judge that the thirteen motions he had earlier sealed at the defense's request should remain sealed, despite requests by the media attorneys that they be made public.

When this hearing continued on December 12, Suber changed her tactics slightly, saying that she only meant that the media, and therefore the public, be excluded from any hearings dealing with evidence, not all of the hearings involving Hilton. Her arguments would end up concerning the thirteen sealed motions, and her claims that comments by the public that had been printed or broadcast would make it impossible for Hilton to have a fair trial.

“The comments call him evil, serial killer, a dirty old man that deserves to be sent to Apalachicola and be beheaded,” she said.

When Judge Hankinson announced his decision, the arguments of the defense had failed to have its desired results. Ten of the thirteen motions that Suber had hoped would remain sealed were made public.

The unsealed motions had requested the court to disallow any mention during the trial of the following:

The majority of the motions had originally been made in an effort by the defense to bar the introduction of any evidence in seven killings that took place in four states over a period of eleven years. Clearly, Hilton's defense team was aware of the striking similarities to the Dunlap case in some of those murders and disappearances. Most of them involved incidents that took place in state or national parks, including the use of victims' ATM cards, kidnappings, and even beheading. The crimes might very well seem to a jury to be far more than just coincidental.

 

On January 6, 2011, the judge ruled that the prospective jurors would be questioned individually, behind closed doors, about their knowledge of the case and any news items concerning Hilton that they might have seen. He ruled against another request from the defense, which wanted to question the jurors individually about their feelings about the death penalty and whether or not they felt they could impose it.

The following day, on January 7, the judge, who had asked to have a jury pool of 220 potential jurors summoned for jury selection starting on January 31, denied a request from the defense to have questionnaires sent out in advance to those prospective jurors in order to speed up the selection. The judge did not like that idea. It could tip off those who were summoned that they were going to hear the Hilton case, he felt, and therefore make it harder to seat a jury. People might try to come up with ways to get out of serving, he said.

“People aren't stupid. They are going to know this is something out of the ordinary,” he said, adding that sending out the questionnaires “will alert the jurors they are coming to hear this case, even if it doesn't have [Hilton's] name on it.”

The judge was very likely right in his assumption. A comment following an Internet story about the date set for the trial and the jury selection said: Uh, oh, I just got a summons and it's for January 31!

Court administrator Danny Davis verified that the judge requested four panels of fifty-five potential jurors. Five hundred thirty summons were mailed out in hopes of getting the total of 220 that was requested.

 

During that same court session Hilton's attorneys also tried to challenge some of the evidence the prosecution was planning to present. A bayonet that the state claimed Hilton had used to slash a tire on Cheryl Dunlap's car was contested. Tool mark expert Dr. Adina Schwartz stated there were no forensic means to prove that a particular instrument was used to leave a mark. An analyst was only able to verify that a particular type of tool was used, not the individual instrument.

“It's very difficult, because you get marks in tires. You don't know what tool made it,” Schwartz said. “You don't know what pressure. You don't know what angle of attack.”

The prosecution's expert witness, firearms analyst Jeff Foggy, testified that he had done the lab work on the bayonet that Hilton was accused of using to slash the tire. When prosecutor Georgia Cappleman asked Foggy if he had been able to make an identification based on microscopic imperfections, Foggy said that he had.

Judge Hankinson said he would wait on making a decision about whether or not to allow the bayonet to be admissible until he reviewed several rulings and studies.

 

On January 10, Hilton's attorneys filed a thirty-page request for a change of venue because of what they called the “intense publicity” that had been ongoing in Leon County since Cheryl Dunlap's murder.

Judge Hankinson said he would attempt to seat a jury in his court first, before considering a change of venue. “I would like to seat a jury in Leon County,” he said. “I don't know if we can do it or not, but I'd like to try.”

Cappleman also voiced her objections to a move. It would be cumbersome and expensive to hold the trial in another area, she said. The prosecutor also thought the case should be tried in the community where Cheryl Dunlap lived and died.

Along with the thirty-page request from the attorneys, Hilton himself also submitted a letter asking for the change of venue:
All of the publicity and comments thereof show that Tallahassee and Leon County has a bias in favor of Ms. Cheryl Dunlap and against me. I do not believe that these communities can fairly and impartially decide my guilt or whether I should die.

Judge Hankinson remained determined to try to seat a jury before considering any request for change of venue.

 

On January 20, Hilton was in court once again, to answer questions from the judge. These were routine procedural questions about a deposition, but his attorneys were at the ready, with a stack of motions they wanted to submit before the January 31 trial date.

One motion objected to the prosecution's attempt to get several years' worth of Hilton's medical and mental-health records from many law enforcement agencies, dating back to 1974. The intent was to determine if Hilton had been treated for any medical or mental illnesses while in the custody of any of those agencies. The prosecution contended that if Hilton's defense attorneys planned to call his sanity into question, the state had a right to know his past mental and medical history.

“We anticipate the defense will present a mental-health expert in the penalty phase of this trial,” Cappleman said, “and so it would be important to know.”

Defense attorney Robert Friedman told Hankinson that prosecutors were going on “a fishing expedition” and should have to show that the records they wanted were relevant to the case at hand.

Hankinson ruled that even though the insanity plea had not been brought to the table at that point in the proceedings, the prosecution had the right to obtain the records in case the defense chose to use that tactic later in the case. He would determine during the trial, he said, if the records had any bearing on the case.

The defense then addressed the motion they had filed asking the judge to ban cameras from the courtroom during the trial, saying cameras would disrupt the defense, impact their effectiveness, intimidate potential jurors, and hamper Hilton's ability to get a fair trial. The defense also asked the judge to ban the use of all devices such as smartphones, laptops, and iPads by jurors during jury selection, the trial, and final deliberation because they would allow the jurors easy access to media reports on the case.

The defense made another futile attempt to completely seal four defense motions, one of which dealt with keeping the condition of the bodies of Cheryl Dunlap and Meredith Emerson from being used by the state to show aggravating circumstances during the sentencing phase of the trial. Another motion would have limited the victim impact statements so that jurors wouldn't be unduly prejudiced during sentencing.