by Sue Russell
Mallory was diagnosed with ‘personality pattern disturbance, schizoid personality,’ and he was deemed a ‘defective delinquent’ and confined to the Patuxent Institution.
There, he told a psychiatrist that he had, ‘no hope for the future, nothing to live for,’ and was, ‘of no use to anybody.’ He thought that his wife would be better off if he were dead.
Ultimately, Mallory held a job in the institution as a hospital clerk; a pat on the back for his progress. But he backslid and had to be removed from the job in August 1960 after making, ‘a molesting gesture towards the charge nurse, with sexual intent.’
Early in 1961, he escaped from the institution but was caught and returned there. That year, a report on Mallory read: ‘It is the feeling of the staff that this individual is quite unstable emotionally and lacks sufficient inner controls to warrant any change in status at this time. It is strongly urged and recommended therefore that he still be considered a defective delinquent and remain at Patuxent in an attempt to mitigate same.’
Richard Mallory was finally released in 1962, and in April 1968, was found by the Circuit Court for Montgomery County, Maryland to be ‘completely relieved of the status of defective delinquent.’
As an adult, Mallory was a fan of porn and girlie bars but that is hardly synonymous with violence towards women. And his criminal record had been clean since his youthful offence, thirty years before his fateful encounter with Aileen Wuornos.
In short, his long-distant past was hardly a magic bullet and raised in Aileen’s appeals, it was dismissed as irrelevant. When a defendant claimed self-defence, only two kinds of evidence could be admitted to establish the victim’s character. One, evidence that showed their general reputation for violence in the community. Non-existent with Mallory. The second allowed testimony about specific acts of violence committed by the victim, but only on condition that it was first shown that the defendant knew about these same specific acts. Aileen did not know of any such acts.
Her lawyer tried to use Mallory’s history to appeal the Charles Carskaddon conviction, but Attorney General Robert Butterworth and Assistant Attorney General Scott Browne, wrote in response:
‘The defendant has failed to show that the extremely remote in time ‘conviction’ or incarceration of the victim in her prior murder case was relevant and admissible in this case.’ They continued: ‘… even if Mr. Mallory’s stay in a Maryland Institute for Sex Offenders from between 1958 and 1962 for a 1957 offence of housebreaking with intent to rape was somehow admissible in the Volusia County case, there is no reasonable possibility that this evidence would have resulted in a different result.’
They also argued that, ‘It strains credulity to suggest that the outcome in the instant case would have been any different if only Mr. Glazer (Steven Glazer was Aileen’s counsel in the Carskaddon case) had investigated the background of Mr. Mallory and learned that he had a “conviction” for an offence that occurred more than thirty years prior to his murder.’
The court agreed. And Steven Glazer, for one, was not surprised. He’d never viewed Mallory’s history as particularly helpful to the case and is sure that even if all the specifics had been available at Aileen’s trial for Mallory’s murder, they’d have made no difference there either.
‘They wouldn’t have at all,’ he reflected in 2001. ‘To test the waters in case it came up in the Dixie County case, if you look at the record, you’ll see that I tried to enter it into evidence. And it was objected to based on the fact that, number one, it’s too old. Number two, Mallory’s not on trial. It was not relevant.’
In appealing the Mallory trial verdict, the numerous issues raised included the fact that the jury was allowed to hear testimony about the other murders to which Aileen had confessed, prejudicing her case. The Justices noted that all evidence of a crime prejudices the case, in effect. Question was: Did it do so to an unfair, and therefore unlawful, degree? They thought not. The evidence was used to establish a pattern of similarities and to rebut Aileen’s claim that she was defending herself while under attack: a proper use of the information under the Williams Rule. As the only witness to Mallory’s murder, Aileen claimed he’d viciously abused her and threatened he might kill her. Had the jury heard that alone, they might have concluded that the murder was not premeditated and didn’t reach the standard of first degree homicide. The prosecution was within its rights to use the ‘similar fact evidence’.
The Justices did agree with the defence’s contention that the trial court should have weighed Aileen’s alcoholism, difficult childhood, and some kind of mental disturbance and impaired capacity at the time of the murder—especially since even the State’s psychological experts agreed on this. But they found that since there were no other mitigating factors that should have been considered, given the record as a whole, the omission was harmless in that it would not have changed the outcome.
And so, on September 22, 1994, the Florida Supreme Court denied Aileen’s appeal in the Mallory case, upholding her death sentence. Justice Kogan rendered a special opinion in concurrence, noting the discrepancy between the two pictures of Aileen—one as a victim of violence, lashing out at one of her victimizers, the other of a cold-blooded robber and killer. He agreed that the jury and court had been within their ‘lawful discretion’ in recommending and imposing the death penalty but went on to write about society not yet having confronted the problems arising from women forced into prostitution early, often to escape an abusive home environment:
‘The tragic result is that early victimization leads to even greater victimization. And once the girl becomes an adult prostitute, she is labeled a criminal and often is forced into even more crime, as the only means of supporting herself. Few escape the vicious cycle.’
On October 6, 1994, the same appellate panel considered Aileen’s appeal against her murder convictions for Dick Humphreys, Troy Burress and David Spears. The court did not agree with Aileen’s argument that her ‘no contest’ plea was not voluntarily or intelligently made. Aileen had been extensively questioned by Judge Sawaya before her plea was accepted. As to another argument made by her counsel that her plea was improper because she pled no contest while continuing to insist that she’d killed in self-defence—that didn’t help her either. The court held that the two were not inconsistent, noting that it’s common practice for a guilty plea in a murder trial to be followed by an appeal for mercy.
Amongst the issues Aileen’s team argued was that she did not murder for monetary gain but took the victim’s property only as an afterthought and as revenge for having been abused by them. The court was not persuaded. Another round lost. Ultimately in 1994, the Florida Supreme Court upheld each and every one of Aileen’s death sentences.
And so it went. Hearing after hearing. As Lee’s various appeals crept forward, several key issues—like the question of Mallory’s history—came to the fore and were repeated in each venue. Some trial and penalty phase errors were found but each error was ultimately judged harmless. In short—none would have affected the guilty verdicts and death sentences.
In 1999, CCRC (Capital Collateral Regional Counsel), whose state-paid lawyers work strictly on death sentence appeals, appointed Joseph Hobson as Aileen’s lawyer. Hobson had his work cut out for him from day one.
When Aileen hired Steven Glazer, her goal was speedy execution and although over the years, she vacillated somewhat, her wish to die, to get right with God, remained a constant underlying theme. How does a lawyer fight for a client who one minute wants to live, the next, to throw in the towel and die?
‘Representing Aileen Wuornos was clearly the most difficult and almost confounding challenge I’d ever had as an attorney,’ Hobson recalled in 2001–by then working in private practice with McFarland, Gould, Lyons, Sullivan & Hogan of Clearwater, Florida. Looking back, he believes he saw his duty not so much as to carry out her wishes but as to represent her interests.
‘I wrestled with this,’ he said, explaining that he talke
d it over with many other lawyers, too. ‘And to my mind, I was really always kind of saddened that Aileen wasn’t a more willing client because I thought she had some good issues.’
In February 2001, the issues Joseph Hobson referred to coalesced at an evidentiary hearing in Ocala, Marion County, where he set out to show that all the procedural errors added together had led Aileen to face execution rather than perhaps life, or life without possibility of parole.
Steve Glazer testified at the hearing, as did Tyria Moore, who arrived with her current life partner. The two women dressed in matching outfits which victim Troy Burress’s sister, Letha Prater, took to be Ty’s way of thumbing her nose at Aileen, and saying, ‘Look, we’re together.’ (Lee grinned and tried to catch Ty’s eye in court but Ty kept her eyes downcast and walked straight by without meeting her gaze.)
Incompetence of counsel is a death penalty appeal classic and Tricia Jenkins came under fire as well as Steve Glazer. Like Glazer, she took some hits for failing to present any mitigating witnesses. Childhood friend, Dawn Botkins, who saw adolescent Lee living rough and sleeping in cars, was all geared up to tell the story as were other childhood acquaintances who could have told of Lee’s drug use in her teens and pre-teens, beatings, incest and sexual abuse. (Lee said the witnesses would not give accurate testimony: she’d had a good upbringing.) Filmmaker Jackelyn Giroux had also unearthed information about abuse in Lee’s childhood that Pralle was convinced would have helped keep her off Death Row.
‘It has always troubled me, too, that there were several witnesses who wanted to testify for Wuornos, but Jenkins never brought them in,’ said Giroux, who would have been willing to testify.
Nor, Hobson and his CCRC colleague, Ruck DeMinico argued, did Jenkins pursue Lee’s level of intoxication the night she murdered Richard Mallory. Voluntary intoxication can be a mitigating factor when weighing the intent behind a crime. If someone is falling down drunk, arguably, they cannot form the intent necessary for a murder to reach the level of heinousness found in Aileen’s murder of Mallory and that warrants the death penalty.
An 18-year veteran of the Public Defender’s Office, Tricia Jenkins had spent over 15 years as Chief Assistant, but at the time of the 2001 hearing had recently resigned to go into private practice. When defending Aileen, she had sixteen capital cases and over one hundred first degree murder cases under her belt.
Tricia knew Steven Glazer from his approximately two years with the Ocala Public Defender’s Office. She was his supervisor … and his friend. And when Arlene and Aileen were desperate to have contact visits prior to the Mallory trial, it was Jenkins who referred Arlene to Steven Glazer. Not that Jenkins ever envisaged her adopting Wuornos. But she knew Glazer to be a member of the American Civil Liberties Union—he always wore a little ACLU pin—and he seemed ideal to handle the women’s visitation issue.
Jenkins, like Ric Ridgway, was shocked when, during preparations for Aileen’s Marion County trial for the murders of Burress, Humphreys and Spears, she learned that Glazer had become far more deeply involved than that and was planning to take over Wuornos’s case. Personally, she would never have assigned Glazer a capital case, wouldn’t even have appointed him second chair on one. He just didn’t have the experience, she said, testifying in front of Judge Musleh, who presided over the Evidentiary Hearing.
‘I would have wanted him to have co-counsel at least through a few felony cases,’ she said. She also testified that later, in private conversation, Glazer had referred to himself ‘as the Dr. Kervorkian of the legal community.’
Their friendship was quickly history. The vehemently antideath penalty Jenkins was appalled by Glazer’s handling of Wuornos’s case and his ‘no contest’ pleas and she felt he had sold Aileen out.
Assistant State Attorney Jim McCune, the prosecution’s main player at the Evidentiary Hearing, quickly brought out that Jenkins and Aileen weren’t getting along when Aileen changed her plea on March 31, 1992:
‘Well, isn’t it fair to say that Miss Wuornos didn’t want anything to do with you after the Volusia trial?’ asked McCune.
‘I think that that’s probably a fair comment,’ Jenkins replied, ‘but that changed off and on, just like it did during my entire representation of her almost on a daily basis.’
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Things got uglier and more personal for Steve Glazer than for any other player in Wuornos’s legal drama. He was genuinely taken aback by the barbs flying in his direction.
‘A lot of people have crucified me,’ he reflected late in 2001. ‘I do have a bitter taste in my mouth.’ He was just following his client’s wishes. And Aileen was very clear: she wanted it over with fast and didn’t want anything happening that would give rise to a slew of appeals.
Other lawyers might have weighed her state of mind—she was depressed, surely, after recently being sentenced to death, and might soon start to feel quite differently about wanting to die—but Glazer was led by the lawyers’ rules of ethics he felt appropriate.
‘The defence client controls the litigation,’ he explained. ‘The next thing I have to find out: Is she sane? Can she make these decisions? I knew of her evaluations in Volusia where she was considered sane. I had her evaluated. While I represented her, I believe five separate doctors told me she was competent. So I had no doubt.’
He wouldn’t have proceeded if he’d had any misgivings and always felt that he did the right thing. Seeing Aileen still chasing death nine years later only reaffirmed his belief. But his personal convictions didn’t convince his critics and he flinched when he saw a criminal defence lawyer pontificating on television, saying, ‘What Steve Glazer did was an abomination.’
The other thing was: his client’s wish to die made sense to him.
‘All I can tell you is that if it was me, I’d like to die as soon as possible,’ he’d later explain. ‘I wouldn’t want to sit there for ten, fifteen, twenty years, waiting for the electric chair. I think that’s part of why I helped. I could put my feet in her shoes … it’s what she wanted.’ He also knew Florida law and speculated, ‘We’re looking at twenty years, sitting on Death Row in that little cubicle! ’
Glazer, who still practised criminal law in 2001 but had determined never to handle another death case, admitted he was stunned by the empathetic feelings he’d developed for Lee. With just two years in age between them there was rite-of-passage common ground, plus Steve’s a musician and they enjoyed some of the same music. ‘She understood The Beatles’ “A Hard Day’s Night”,’ he said wryly.
He continued to send her birthday and Christmas cards once he was no longer her counsel—with his representation of Lee an appeal issue, there could be no more contact than that. When they saw one another in court in February 2001, ‘She smiled and we blew kisses at each other. I believe that if you asked her, she would say, “Steve Glazer’s my friend.” I would hope so. I think she would.
‘I thought that she had three strikes against her by the time she was fourteen. What amazed me was how I could grow to really, really like someone who killed six people. I’m shocked. But I consider her my friend. Again, as a defence lawyer, you do not judge people. You help them. That’s it.’
One thing was certain, he looked on Lee far more kindly than he did Nick Broomfield, the British documentary-maker who made the 1994 film, Aileen Wuornos: The Selling of a Serial Killer, portraying the money-hungry characters around Aileen. Broomfield, Steve believed, was bent on destroying him.
Steve Glazer’s actions as a deal-broker for Aileen with media folk like Broomfield also came up in Aileen’s appeals. Did he jeopardize her case by putting his time and energies into them? Did he have a conflict of interests? (He was charged with representing her best interests in her death penalty cases, yet meanwhile, he made money from being the liaison on some media projects like Broomfield’s.)
At minimum, when Glazer brokered a deal with Broomfield and agreed to be interviewed along with Arlene Pralle and Aileen for the documentary, it was a p.r
. disaster. The already-embattled Glazer was seen taking money on camera and smoking marijuana during a drive down to visit Aileen. It was all captured on film for posterity … and ready to come back and bite him.
What most hurt Steve personally was learning that in a short-lived, San Francisco-based opera about Wuornos, his character was called Buffoon. ‘That’s where I sting,’ he said later. ‘Buffoon! They’re talking about me!’
Yet Broomfield’s portrayal of him as a mercenary, pot-smoking incompetent who seemed to find things rather amusing harmed him far more. Jovial by nature; that side to Glazer wasn’t easily suppressed. Yet he truly believed he always acted in Aileen’s best interests, and at her behest.
‘I did not sell a serial killer,’ he insisted. ‘And just because they say it’s a documentary, it doesn’t mean it’s true.’
The only money he received came from Aileen, and, ‘What’s so strange about a lawyer taking money from a client?’ he puzzled. What’s more, he was representing her free of charge in her criminal case because she was indigent and because, ‘In my heart, I felt that if that’s what she wanted, that’s what she should get.’ He had a clear conscience, thank you very much.
As he sipped a cup of coffee at the February 2001 evidentiary hearing in Ocala, Steve watched with interest as Tyria Moore arrived to testify, but he was then shocked to see his nemesis Broomfield being allowed to take a camerawoman inside the courtroom to record the proceedings. He kept his cool, though.
‘I shook his hand, smiled, and said, “Fuck you.” Steve recalled, chuckling despite himself.
Broomfield testified that his first take on Glazer was that he was acting more like a sales agent than a lawyer focused on the merits of Aileen’s case. Quickly intrigued by the story’s business angle, Broomfield had decided to start filming his negotiations with Glazer and Arlene Pralle.