Duval County: The Tributary challenges Kenneth Hartley's conviction (Parts 2-3)
Kenneth Hartley was convicted and sentenced to death in 1993. He remains on Florida’s death row. Today, The Tributary published a three-part story challenging the veracity of Hartley’s conviction.
The following was reprinted with permission from The Tributary, a nonprofit newsroom covering Florida. It is parts 2 and 3 of a 3-part series. The rest can be found here.
By Nichole Manna/The Tributary
Part 2: The Prosecutor
George Bateh was good at putting people on Death Row. Whether that was the work of a righteous prosecutor or a sneaky courtroom tactician is a question at the heart of the legacy he left behind after nearly 30 years in the State Attorney’s Office for the Fourth Judicial Circuit.
Bateh was the director of the homicide division under former State Attorney Harry Shorstein, leading prosecutors through their workload and taking on some of the toughest cases in Northeast Florida himself.
Fifteen people have been put on Death Row because of his work, a decades-long crusade that earned Bateh plaudits from fellow prosecutors and judges for his remarkable ability to plunge into the murky corners of Jacksonville, filled with seedy characters and few honest witnesses, and yet still emerge with successful prosecutions. It is that very reputation – which, to his critics, looked more like gussying up threadbare cases with inflammatory language and questionable trial tactics – that could help undo the convictions of three Jacksonville men, one of whom has sat on Death Row for decades.
As a prosecutor, Bateh was media friendly and fluent in the language of a past era that viewed the accused with unsparing suspicion and held out little hope for the convicted. He called defendants mad dogs, brutal killers and terrorists in the press. He scoffed at the notion of rehabilitation, once telling a reporter such a thing was a myth.
Bateh loomed large over the office where he worked for much of his adult life, even after his departure: He took other prosecutors under his wing – which was expected of office veterans – guiding them through complex cases. One of those proteges, Angela Corey, turned out to be a future state attorney, albeit one who found herself frequently enmeshed in controversy, including for failing to convict the killer of Trayvon Martin. The Nation, a progressive magazine, once asked if she was “the cruelest prosecutor in America.”
Bateh retired in 2008 after spending his entire career as a prosecutor. His daughter joined the office as an attorney more than a decade later. At his retirement party, the Jacksonville Daily Record wrote that two words were repeated about Bateh: “Good man.”
“George is a very, very smart man and a very, very good lawyer and a very, very honorable man,” said former Jacksonville mayor John Delaney, who worked for years as a local prosecutor. “George is just not capable of doing something corrupt in terms of a prosecution.”
For those on the other side of the courtroom, Bateh’s reputation was markedly different.
The Tributary’s review of Bateh’s highest-profile cases and interviews with multiple attorneys who either worked with Bateh or argued cases against him depicted an unquestionably effective prosecutor, though one who developed a reputation among his courtroom adversaries for tiptoeing close to – and sometimes crossing – ethical lines.
Bateh had a habit of using jailhouse informants to bolster his prosecutions, a trial tactic that in more recent years has come under scrutiny. He was also admonished twice by the Florida Supreme Court for using language that dehumanized defendants and implored jurors to ignore the law.
Lewis Buzzell, a retired public defender, said Bateh would “do stuff behind the scenes to throw a monkey wrench in cases.” Buzzell recalled, for example, getting permission from a judge to hire a jury expert during his representation of a case in the 1990s, only to see Bateh go to the city attorney to try to block that from happening because the city would be paying for the expert’s service. Bateh’s effort didn’t work, but it left an impression on Buzzell, who still remembered the episode years later in an interview with The Tributary.
Buzzell’s experience wasn’t a one-off.
“Defense lawyers were well aware of the need to place extra scrutiny on any representations made by Mr. Bateh,” said Teri Sopp, who worked as an assistant public defender for years in Jacksonville and now represents clients in a judicial circuit west of the city.
Delaney shrugged off complaints about Bateh, arguing “the defense bar is always going to talk that way about an aggressive prosecutor. Often, if they say something nice, it's because the prosecutor is soft.”
Now, two of Bateh’s highest-profile capital cases have been subjected to scrutiny. Ronnie Ferrell’s death sentence – for his 1993 conviction of participating in the murder of 17-year-old Gino Mayhew – was reduced years ago to life and State Attorney Melissa Nelson’s Conviction Integrity Review Division has indicated it has concerns about the prosecution, handled by Bateh.
That investigation overlapped with the case of Kenneth Hartley, Ferrell’s co-defendant, who remains on Death Row.
Bateh declined to speak on the record about Hartley’s prosecution or the ongoing reviews, but said of his career: “I was firm, but I always felt I was fair. I could be aggressive with violent crime but I always felt it was an appropriate balance."
The Tributary’s months-long investigation of Hartley’s case showed that it contained many of the signature tactics Bateh became known for by his courtroom adversaries – namely, the use of jailhouse informants and unflattering facts about them and other witnesses that he failed to disclose to the defense – making it a kind of Rorschach test about Bateh himself: If Hartley’s appeal is successful, it could complicate the career of one of Northeast Florida’s most prolific prosecutors.
Jailhouse informants
Frank Tassone, a longtime Duval County defense and appellate attorney, started his career as a prosecutor in the Fourth Judicial Circuit, working alongside Bateh, whom he has known since high school.
During his five years as a prosecutor, Tassone had the opportunity to use a jailhouse informant a single time on a low-level crime. But curiously, Tassone recalled, Bateh used them in virtually every major case he was assigned.
“I thought that it was a bit unusual to have that many snitches on death penalty cases,” Tassone said. “Suddenly, these people from different parts of town, who don’t know each other, are spilling their guts to somebody they’ve just met in jail. That just rung as suspicious to me.”
Jefferson Morrow, a now-deceased judge who represented Hartley as a private attorney in a 2002 appeal, filed a document in court that said it was common knowledge among homicide defense attorneys that Bateh used jailhouse snitches “virtually in every case he prosecutes.”
Inside the jail, Bateh was known as the “eager prosecutor who only cared about getting convictions,” said Leroy Tillie, who claimed in an affidavit that his friend, jailhouse informant Ronald Bronner, admitted lying on the stand to bolster Bateh’s case against Hartley.
Rick Sichta, an appellate attorney who once represented Ferrell, Hartley’s co-defendant, said he found a pattern of Bateh recycling known informants. For instance, Bronner, who testified against both Hartley and Ferrell, had been involved as an informant in at least two prior murder cases – one of which was prosecuted by Bateh.
“I thought that was a little too convenient,” Sichta said of his findings.
In describing Bateh, Sichta said they butted heads all the time.
“I could not believe what I was seeing,” he said. “It jaded me as an attorney. Is this what my opposing counsel is going to be like every time? And thankfully that has not been my experience. But every single time I went into the courtroom [against Bateh], I was expecting something really odd to happen that I did not think was ethical.”
A winner
Bateh sent a letter to State Attorney Don Nichols in January 1973 asking for a job. His experience as a summer intern in the same office sparked his interest in criminal prosecutions. Nichols hired Bateh as a research assistant in June of that year. He passed the Bar five months later and became an assistant state attorney.
A skilled prosecutor, Bateh was moved to the homicide unit by the 1980s, though his fraught relationship with homicide detectives in the Jacksonville Sheriff’s Office initially landed him in hot water, according to his yearly employee evaluations. He was commended for fixing that relationship. William Bolena, the detective who helped prosecute Hartley, Ferrell and a third co-defendant, Sylvester Johnson, once wrote that his initially frosty relationship with Bateh got better as Bateh helped make the case against them.
“The cases were weak in the beginning,” Bolena wrote to then-State Attorney Shorstein, referring to the cases against Ferrell and Johnson. “But through Mr. Bateh’s diligence and supervision, we somehow managed to make it through two long, tough homicides, which as you know, resulted in convictions.”
Bolena wrote the letter in May 1992. Hartley wasn’t tried until the next year. By then, Bateh had put six people on Death Row.
In 1998, Shorstein nominated Bateh for an award issued by The Association of Government Attorneys and Capital Litigation, pointing toward his history in the courtroom.
“He has an extremely high conviction rate while prosecuting over 1,000 cases – 200 of these were felony jury trials, including more than 60 murder trials,” Shorstein wrote. “Mr. Bateh has not had an acquittal since 1978.”
‘Egregious’ closing arguments
Two of Bateh’s death penalty cases have been remanded to life sentences by the Florida Supreme Court because of prosecutorial misconduct that in at least one instance the justices described as “egregious.”
In the 1996 case of Ryan Urbin, a 17-year-old who fatally shot a man outside a Jacksonville pool hall, Bateh referred to him as a “cold-blooded” and “ruthless” killer, terms he also used to describe Hartley and Ferrell during their sentencing hearings.
During his closing statements in Urbin’s trial, the Florida Supreme Court wrote that Bateh “invited the jury to disregard the law” by telling them that if Urbin had been sentenced to life, he could be released one day because “we all know in the past laws have changed. And we all know that in the future laws can change.”
“[I]t is your sworn duty as you came in and became jurors to come back with a determination that the defendant should die for his actions,” Bateh told them.
The court wrote that it found Bateh’s comments to be “particularly egregious because it invites a jury to disregard the law as it is written by the legislature.” The court also noted that Bateh improperly claimed the victim was shot while “pleading for his life” despite no evidence of such – literally putting his own imaginary words in the victim's mouth.
A year later, Bateh tried Fred Brooks, who was accused of robbing and murdering Darryl Jenkins in the driveway of Jenkins’ home. In his closing statements, Bateh referred to Brooks as a "deep-seated violent character.” The Florida Supreme Court argued Bateh crossed the line into dehumanizing Brooks and cited the Urbin case.
“The prosecutor in this case exceeded the bounds of proper conduct and professionalism and provided a ‘textbook’ example of overzealous advocacy,” the court’s opinion said, referring to Bateh’s “track record” of making these arguments calmly and in a “fashion calculated to forestall a mercy recommendation.”
These cases caused the Florida Bar to investigate Bateh’s behavior. In a seven-page letter in support of Bateh, Jacksonville attorney Arthur Jacobs said that Bateh used “many of the arguments condemned in the Urbin opinion” in more than 20 capital murder trials without the Florida Supreme Court taking issue with the comments.
Bateh did not intend to dehumanize Urbin when he referred to him as a “cold-blooded killer” and “ruthless killer,” Jacobs argued.
“He freely admits that he should not have said some of the things he said and he regrets that he did,” Jacobs wrote, adding that “Bateh did not intend to cross this line, and he is deeply embarrassed that the Court felt that he did.”
On May 11, 1999, the Florida Bar dropped its complaint against Bateh and said that while the behavior didn’t warrant formal discipline, the investigating committee found it was not consistent “with the high standards of our profession.”
“The committee hopes that, as a result of this letter of advice, you will refrain from not only crossing, but approaching the line of demarcation which delineates proper from improper arguments,” then-chair Mary Katherine Simpson wrote.
Hiding information
In Hartley’s case – and the cases of his two co-defendants – Bateh was accused of hiding the full criminal histories of multiple state witnesses, allegedly in violation of a legal concept known as Brady disclosure, which dictates that prosecutors must share any information that could help a defendant’s case.
The clearest accusation against Bateh was that the state’s star witness who implicated Hartley, a police confidential informant named Sidney Jones, had been prosecuted by Bateh’s office in 1979 after he lied on the stand in a previous murder trial.
Jones was convicted of perjury but the Florida Supreme Court later overturned the conviction after it decided the judge in the case erred in not letting Jones recant his statement on the stand.
Bateh wouldn't address the Hartley case on the record, but said of his career that he never purposefully made omissions in court.
"I was honest with the court and honest with other counsel," he told The Tributary. "And I preached that (honesty) in the office and told the younger counsel we had to play fair – that the people we were prosecuting were American citizens and they had rights."
His opponents have different opinions.
“He wasn’t as open as other prosecutors in the office,” said Al Chipperfield, a lifelong public defender who fought many capital cases against Bateh. “Prosecutors are supposed to disclose favorable evidence to the defense, and some lawyers have a broader definition of what that might mean. George was an effective prosecutor in the court of law, and he played things close to the vest.”
Delaney said that if there was Brady material Bateh knew of, “he would have absolutely turned it over.”
Tassone seemed less certain about Bateh’s track record.
“In representing these individuals, I thought there were perhaps more times than others that information was not presented,” he said. “Now, do prosecutors make a mistake that's not deliberate? Absolutely.”
Part 3: The informants
Take it from Derrick Shiloh: There are huge benefits to becoming a jailhouse informant.
He was urged, he said, 32 years ago by a fellow detainee at the Duval County jail to join the informants who were planning to testify that they had heard Kenneth Hartley confess to the murder of Gino Mayhew, 17.
Shiloh, who had heard no such thing, declined – and ended up being sentenced to 15 years in prison for his part in an armed robbery. His co-defendant, Eric Brooks, did testify on behalf of the state in Hartley’s murder trial, which helped land the defendant on Death Row. Brooks was back on the street in a year.
It is no mystery why detainees will seize the chance to testify that they heard someone confess – whether true or not.
According to a report called “Informing Justice: The Disturbing Use of Jailhouse Informants,” the expectation of rewards creates a perverse incentive for informants to lie. On top of that, the tendency by prosecutors to hide the nature of those rewards from defense attorneys and juries can make effective cross-examination difficult, the report says.
The report was issued by The Innocence Project, which fights for the rights of the wrongly convicted. The organization looked at 367 exonerations stemming from the science of DNA and found that in nearly one of every five cases a jailhouse informant had claimed the ultimately exonerated defendant had confessed.
There is no DNA evidence that could undo Hartley’s conviction. His hopes of getting off Death Row hinge on getting a judge to listen to various former detainees who say the Duval County jail was honeycombed with snitches willing to lie in exchange for rewards – and that the state attorney’s office was “open for business.”
Duval’s nest of snitches
Larry Wynn was one of five men to sign affidavits alleging detainees openly plotted to provide false testimony against Hartley.
Wynn has been incarcerated by the Florida Department of Corrections since 1993, serving a life sentence for murder. Like Shiloh, he said he was encouraged by fellow detainees in the Duval jail to testify falsely against Hartley but “I did not go along with the script.”
He said snitching was commonplace then and everyone knew it.
“Officials would feed them information,” Wynn said, and detainees would huddle up to make sure their stories matched “The bold informants would talk openly while others would talk in secret,” he told The Tributary.
Tara Wildes, the chief over the jail back in 1991, said detainees had access to TV news and could comb through newspapers in search of information on new arrivals that might help in fashioning a narrative that could be useful to prosecutors.
Cracking down
In the years since Hartley’s conviction, the use of jailhouse informants has become more controversial – and restricted.
Florida Supreme Court Justice Barbara Pariente framed the issue in one case when she wrote:
I recognize that in some instances the State may have no alternative but to present the testimony of these informants in order to get a conviction. However, our experience in post-conviction motions in death penalty proceedings has demonstrated that these jailhouse informants [so-called‘ jailhouse snitches’] are often unreliable and untrustworthy.
That’s a point of agreement between Pariente, who no longer sits on the conservative-leaning court, and Robin Maher, executive director of the Death Penalty Information Center.
“It's one thing if defenders understand that witnesses are testifying in exchange for possible lenient treatment,” Maher said. “But it's another level of harm when they're never told and then defense attorneys don't have the opportunity to cross-examine the informant about their true motivation and the jury can’t properly assess the witness’s credibility.”
A pack of liars
The Innocence Project’s report on exonerations catalogues an assortment of cases in which lying jailhouse informants put innocent people behind bars.
Among the scores of examples:
A woman named Ellen Reasonover – who escaped the death penalty by the vote of one juror– was freed in 1999 after 16 years in prison after a long-sought evidentiary hearing surfaced exculpatory evidence. The Dellwood, Missouri, woman’s case rested largely on a jailhouse informant’s lies that were later recanted.
And an Illinois man, James Kluppelberg, was freed after serving 25 years for a Chicago arson that killed a woman and five children. The case was overturned in 2012 after a jailhouse informant admitted he made up hearing her confess to win a reduction in his sentence. Kluppelberg, who said he was tortured by police, won a $9.3 million judgment from the city.
In Florida, Rudolph Holton went from Death Row to freedom in 2003 after a lying jailhouse informant changed his story.
No physical evidence linked Holton to the 1986 rape/murder of a 17-year-old girl in a Tampa crackhouse. But a jailhouse informant said Holton confessed to him about strangling the victim and setting her on fire.
Facing life in prison on his own charges, the informant ended up getting probation after he testified.
Years later, Holton's appellate attorneys – including Linda McDermott, who is representing Kenneth Hartley – tracked down the informant, who admitted he made it up.
The informant got 15 years for perjury. Holton would end up going back to prison for attempted second-degree murder in a separate case.
Florida revised the standard for using jailhouse informants in 2016. The Supreme Court’s new rule of criminal procedure requires prosecutors to disclose the full circumstances of any statements made by jailhouse informants and whether they have been informants in past cases.
That reform came too late for Kenneth Hartley. He was more than 20 years into his stay on Florida’s Death Row, put there in large part by jailhouse informants whose ultimate rewards were not fully revealed to the jury.
This year, Kansas became the latest state to require that prosecutors fully disclose all deals made with jailhouse informants, and required the creation of a database to keep track of those who snitch repeatedly, a did one of the informants who testified against Hartley.
The Pete Coones Memorial Act is named for a man exonerated of murder in 2020. He spent 12 years in prison after a jailhouse informant testified falsely that he had confessed to the murder of a Kansas City, Kansas, couple. One hundred and eight days after his release, the father of five died of an illness that went untreated in prison.
This is parts two and three of a three-part series – the rest is available here.
This story was reported, written and edited by The Tributary, a non-profit investigative newsroom covering Florida. Senior Investigative Reporter Nichole Manna (nichole.manna@jaxtrib.org) reviewed more than 65,000 pages of court documents – including court transcripts and detective and prosecutor notes – that she obtained through multiple record requests. She spoke to everyone involved in the case who is alive and was willing.