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Case Review

DELBERT TIBBS

The Reliability Of The Identification Evidence

The Out-Of Court Identification Procedures

On 3 February 1974, the night of the attack, Cynthia Nadeau provided police in Fort Myers,

Lee County, Florida, with a description of her attacker. She described him as being ‘a black

man with a dark complexion and pock marked skin’. Tibbs, on other hand, was a light

skinned man and with a clear complexion.1

Nevertheless, Delbert Tibbs was stopped by police whilst hitchhiking near Leesburg, Florida,

on the basis that he matched the description given by Nadeau. He was released after

questioning before being stopped again the following day, this time in Ocala, Florida. On

each occasion he co-operated with the police, providing all information and identification that

they had asked for and allowed himself to be photographed by the Ocala Police

Department.2

The Ocala Police Department sent the pictures to Fort Myers Police, who in turn showed

them to Nadeau. She was provided with only pictures of Tibbs and no comparative

alternatives. On 12 February, having looked at his images alone, she identified him as the

perpetrator. This was nine days after the incident.

A warrant was issued for Tibbs’ arrest and on 13 February 1974 he was picked up by police

in Clarksdale, Mississippi. Again, he co-operated fully with the police and chose to waive

extradition in Mississippi to voluntarily return to Florida to face the charges against him.3

Tibbs was transported to Fort Myers and on 16 February 1974 he took part in a line-up

identification procedure. The line-up contained three other African-American men.

Following the line-up, Nadeau positively identified Tibbs as being her attacker. This was four

days after having been shown his pictures by Fort Myers Police.4

Identification Evidence At The Original Trial

Tibbs’ trial commenced on 11 December 1974. He was represented by Chicago lawyer

George Howard.5

During the trial state witnesses conceded that, at the time of the identification on 12

February 1974, Cynthia Nadeau did not have the opportunity to pick his pictures out of a

photographic array. A police witness at trial did claim, however, that on three or four

previous occasions she had been shown photographs of single suspects, and had also seen

several books of photographs, without making a positive identification.6

1 Center on Wrongful Convictions – Delbert Tibbs Chronology

http://www.law.northwestern.edu/wrongfulconvictions/exonerations/flTibbsChronology.html 2 Tibbs v. State, 337 So.2d 791 (1976)

3 Tibbs v. State, 337 So.2d 791 (1976)

4 Centre on Wrongful Convictions – Delbert Tibbs Chronology

http://www.law.northwestern.edu/wrongfulconvictions/exonerations/flTibbsChronology.html 5 Center on Wrongful Convictions – Delbert Tibbs Chronology

http://www.law.northwestern.edu/wrongfulconvictions/exonerations/flTibbsChronology.html 6 Delbert Lee Tibbs, Petitioner v. Florida 457 U.S. 31 (102 S Ct. 2211, 72 L.Ed.2d 652) footnote 2

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During the trial it was established and argued by the defence attorney, Howard, that not

only did Tibbs have an alibi, but Nadeau’s evidence was flawed and, therefore, unreliable.

Howard argued that Nadeau was an unreliable witness, pointing to the fact that she was a

regular drug user and had been smoking cannabis shortly before the attack; drawing

attention to discrepancies in her account of the time of day that the attack had occurred;

suggesting that the facts indicated that the attack had happened at night, not during

daylight hours as was suggested by Nadeau. In his closing argument, Howard suggested

that Nadeau’s former boyfriend had in fact killed Milroy and that Nadeau was lying to protect

him. These arguments were unsuccessful and on 14 December 1974 the jury convicted

Tibbs of first-degree murder and rape and on recommendation of the jury the judge

sentenced him to death.7

The Applicable Law On Identification Evidence

At the time of Tibbs’ trial and appeal, Florida state law provided that in cases of rape, no

corroborative evidence was required if the victim could testify directly to the crime and

identify the assailant8.

Therefore, the jury could safely convict based solely on the testimony of the victim alone

and without any other supporting evidence. This meant that in Tibbs’ case, the fact that no

other evidence placed him at the scene of the crime other than Cynthia Nadeau’s testimony

did not, by itself, undermine the conviction. However, Thomas v. State also established that

where the sole witness is the victim, the testimony must be subjected to careful scrutiny.

On appeal to the Florida Supreme Court, Tibbs’ defence team argued that the photographic

ID procedures used in his case so tainted the subsequent line-up identification and trial

identifications as to deprive him of due process of law, as the procedure was so suggestive

as to give rise to a real likelihood of irreparable misidentification. The right to due process is

a US Constitutional Right under the 4th and 14th amendments.

The photographic procedure was argued to be suggestive because Nadeau was taken back to

the location of the crime, Fort Myers, and shown several photographs of Delbert Tibbs alone.

Nadeau subsequently identified Tibbs in a line-up and at court during the original trial.

The case of Chaney v. State9 found that identification based on photographs of a single

suspect alone does not in itself violate due process. The court should consider the

circumstances surrounding the identification and apply US Supreme Court guidelines to that

identification evidence to assess whether the procedures so fatally tainted that evidence as

to deprive the accused of due process of law.

The Supreme Court guidelines are set out in Neil v. Biggers10, a case concerning a

stationhouse ‘showup’ or encounter which took place seven months after the crime occurred.

The guidelines set out the following principles:

The court must be concerned to avoid the likelihood of irreparable misidentification in

out of court identity procedures;

A likelihood of misidentification offends the right to due process and can form the basis

for the exclusion of evidence;

7 Delbert Lee Tibbs, Petitioner v. Florida 457 U.S. 31 (102 S Ct. 2211, 72 L.Ed.2d 652) – Justice O’Connor

8 Thomas v. State, 167 So 2d 309 Fla.1964

9 Chaney v. State, 267 So.2d 65 Fla 1972

10 Neil v. Biggers, 409 US 188 93 S. Ct 375, 34 L.Ed.2d 401 1972

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The court disapproves of suggestive confrontations because they increase the

likelihood of misidentification;

However, evidence obtained from a suggestive confrontation does not necessarily have

to be excluded due to the suggestiveness alone;

The court must consider whether in all the circumstances the identification was reliable

even if the procedures used were suggestive;

The circumstances to be considered include:

a) The opportunity the witness had to view the criminal at the time of the crime;

b) The degree of attention the witness paid;

c) The accuracy of the witness’ prior description of the criminal;

d) The level of certainty demonstrated at the confrontation; and

e) The length of time between the crime and the confrontation.

Therefore, the fact that Nadeau was shown photographs only of Tibbs would not

automatically fatally taint the identification evidence. However, the appeal court was

required to make an assessment of all the circumstances of Nadeau’s identification of Tibbs

in order to assess whether there was a likelihood of irreparable misidentification.

How The Identification Evidence Was Dealt With On Appeal

When a life sentence or death sentence is imposed, the State Supreme Court’s role is to

assess whether there is a ‘sufficiency of evidence to convince a fair and impartial mind of the

guilt of the accused beyond reasonable doubt’11.

The credibility of witness testimony, including evidence as to the identity of the accused, is

ordinarily a matter for a jury. However, the State Supreme Court, as the appellate court,

can interfere with the jury’s findings where the evidence is not ‘substantial’. Where the

evidence of the identity of the accused is not satisfactory, Florida law provides that the

appellate court can overturn the conviction and order a new trial12.

By majority verdict (four judges to three), the Supreme Court of Florida overturned Delbert

Tibbs’ conviction and ordered a new trial. The two opinions of the judges agreeing the

majority verdict, Justice England and Justice Boyd, highlighted the following issues with the

identification evidence:

The fact that Nadeau testified the crime took place in daylight, which would aid

identification, when all independently available evidence suggested it took place after

nightfall;

Nadeau’s use of marijuana throughout the day and immediately before the crime;

The conduct of the photo identification procedure: by returning Nadeau to Fort Myers,

where the crime occurred, and showing her photos of Tibbs only, the identification

procedure was less reliable than possible with multiple photos of more than one

person; and

The first description given by Nadeau, which included several stark differences to

Tibbs’ appearance.

Taken together, the above issues cast significant doubt on the credibility of Nadeau’s

testimony, in the majority view of the appeal court. Therefore, the identification evidence

11

Heath v. State, 97 Fla 330, 120 So. 846 12

Nims v. State, 70 Fla 530, 70 So. 565

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was not satisfactory and, in the absence of any evidence corroborating Nadeau’s testimony,

the evidence against Tibbs was not substantial enough to support the conviction.

Commentary

The convictions were based primarily on the uncorroborated evidence of Nadeau, who on her

own account admitted to having been under the influence of marijuana at the time of the

incident.13

At the time of Tibbs’ trial, the law allowed a safe conviction based on the sole evidence of a

victim in a case of rape, once properly scrutinised.14

The key issue raised in appeal by the defence team was that the key evidence given by

Nadeau in her testimony was not tested with the proper scrutiny that should have been

applied by the jury. One key part of her evidence was the identification of Tibbs.

Reliability is the linchpin in determining the admissibility of identification testimony. A

number of factors ought to be considered, such as the opportunity of the witness to view the

criminal at the time of the crime, the degree of attention paid by the witness, the accuracy

of the prior description, the level of certainty and the time between the crime and

confrontation. These factors should be weighted against the effect of the suggestive

identification itself.

The dissenting judgment of Judge Roberts15 specifically considered whether the identification

procedures used in Tibbs’ case were so suggestive as to fatally taint the identification

evidence and violate his right to due process.

Judge Roberts concluded that there was no rule providing for a strict barring of identification

evidence obtained through suggestive procedures. In his analysis, he found no basis for

concluding there was a likelihood of irreparable misidentification and the conviction could

properly be based on Nadeau’s identification evidence. Judge Roberts does not specifically

comment on or attempt to reconcile the discrepancies between Nadeau’s first description

and Tibbs’ actual appearance, nor her account of the crimes taking place in daylight; both

issues which the majority opinions found to significantly undermine the credibility of her

testimony. In addition, the accuracy of prior description and opportunity to view the

criminal at the time of the crime are both issues specifically identified by the US Supreme

Court in Neil v. Biggers as circumstances to consider when assessing the reliability of the

identification evidence.

The Cellmate Confession

Besides the testimony of Nadeau, the only other witness to give evidence at the trial was

Sylvester Gibbs, who claimed that Tibbs had confessed to the murder while they were

sharing a cell in the Lee County Jail. Bearing in mind that this was the only corroborating

evidence to an eyewitness account for which identification issues were far from clear cut, it

must be assumed to have played a fairly substantial role in Gibbs’ conviction.

Addressing the cellmate conviction at the first appeal hearing in 1976, Tibbs’ attorney

submitted that the credibility of the only two witnesses against the accused was so low that

they should have been completely disregarded by the Circuit Court jury hearing the case.16

13

Delbert Lee TIBBS, Petitioner v. FLORIDA 457 U.S. 31 14

Thomas v. State, 167 So 2d 309 Fla 1964. 15

Tibbs v. State, 337 So.2d 788 (1976) 16

St Petersburg Times – Miami Herald, 7 Jan 1976

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The majority of judges agreed, with Justice Joe Boyd pointing out that Gibbs – himself a

convicted rapist, who was by then serving a life term – was attempting to benefit himself by

testifying against Tibbs.17

In fact, relatively little mention of the cellmate confession is made within the various appeal

court judgments, implying that it may have been accepted early in the appeals process that

Gibbs’ testimony added little to the case against Tibbs. Subsequent discussions of the

higher courts were focussed on the reliability or otherwise of the identification evidence.

Cellmate confessions have similarly been adduced in criminal trials in England, often leading

to convictions which are subsequently reversed on appeal. For example, Ian Lawless was

jailed for life in 2002, having been convicted of murdering retired sea captain Alf Wilkins,

based on supposed confessions to a number of parties including his cellmate who (like

Gibbs) was a convicted criminal who stood to gain by testifying against him. Some seven

years later his conviction was quashed as the reliability of the confessions was questioned.

It, therefore, appears that there is scope for building further safeguards into the trial

process, recognising the fact that confessions of this nature will often be self-serving and

ensuring that the jury is fully warned of their potential lack of reliability.

Rebuttal Evidence – Whose Signature Was On The Card?

At the trial Tibbs denied that he was in Fort Myers at the time the crimes were committed.

He testified that he was some 250 miles away in Daytona Beach from 1 February through to

6 February. The crimes were committed on 3 February. Two Salvation Army Officers

partially corroborated Tibbs’ testimony by producing a Daytona Beach Salvation Army

Transit Lodge card signed by Tibbs on the evening of 1 February and confirming that he had

stayed overnight.

The prosecution, however, sought to discredit Tibbs’ testimony by showing another card,

allegedly signed by Tibbs, which suggested that he had in fact spent the night at the Orlando

Salvation Army Transit Lodge on 4 February. This second card put Tibbs 50 miles closer to

Fort Myers, where the crimes were committed. Tibbs had also claimed that he had only ever

been in Orlando in January 1974. Tibbs maintained that he had not been in Orlando other

than in January 1974 and denied that the signature on the second card was his.

The card from Orlando Salvation Army Transit Lodge may have been a significant issue for

the jury in deciding that they did not believe Tibbs’ testimony. The card represented the

sole physical evidence against Tibbs and he denied the signature on it was his. No expert

evidence was given at trial to assist the jury in deciding whether or not this card was signed

by Tibbs.

Florida law says that if scientific, technical, or other specialised knowledge will assist a jury

in determining a fact in issue, an expert may testify about it in the form of an opinion

(Florida Statute 90.702). There is also provision for experts’ fees to be paid from court

funds or at public expense (Florida Statute 92.231).

In view of the Orlando Salvation Army Transit Lodge card potentially serving to bring into

question Tibbs’ honesty in front of the jury, appropriate consideration should have been

given to whether the court should appoint an expert who could testify to the authenticity of

the card. If such expert testimony raised doubts about the only physical evidence directly

contradicting Tibbs’ testimony it may have affected the jury’s verdict.

17

Palm Beach Post, 29 July 1976

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Jury Selection

Bearing in mind the limited evidence, the question may arise – how did Delbert Tibbs come

to be convicted at all? Issues of guilt or innocence are for a jury and Tibbs looked to the 12

faces that would be deciding his fate. They were the same 12 faces that had returned

verdicts of guilty for the offence of murder and rape. Tibbs was an African American hailing

from Chicago. The faces on the jury were all white and hailed from Lee County, Florida.

How did it come to be that Tibbs was tried by an all-white jury? Juror strikes were used

routinely by state prosecutors to obtain all-white juries in cases where the defendant was

African American.

In the case of Tibbs, one African American made it through the peremptory challenges for

selection on the jury but was disqualified at the last moment. During jury selection,

potential jurors can be dismissed for ‘cause’, such as being unavailable for the duration of

the scheduled trial or indicating an opposition to the death penalty. Both prosecution and

defence lawyers have the right to question the jury pool and take turns dismissing jurors

using peremptory strikes. The number of strikes the prosecution had was sufficient to

exclude minorities from sitting on a jury.

The jury is not only responsible for deciding guilt and innocence. In the state of Florida they

also retire after they have returned a guilty verdict in order to deliberate whether a sentence

of death should be passed. This is known as the penalty phase. The jury considers the 17

statutory aggravating factors and seven mitigating factors. The jury’s recommendation is

‘advisory only’ and can be overridden by the judge presiding over the penalty phase. In

Tibbs’ case, the jury returned a recommendation of passing a death sentence. Despite there

being a moratorium on the imposition of the death penalty the judge passed a sentence of

death should the penalty be reinstated.

Following the 1972 case of Furman v. Georgia, the Supreme Court’s decision led to a de

facto national moratorium on the death penalty. Mr. Justice Douglas - who concurred with

the lead opinion - stated: “The system is pregnant with discrimination and discrimination is

an ingredient not compatible with the idea of equal protection of the laws that is implicit in

the ban on cruel and unusual punishments”.

The US Supreme Court in Batson v. Kentucky held that the removal of potential jurors on

the grounds of race was unconstitutional. However, this decision failed to assist Tibbs as it

was decided 12 years after he had been found guilty and sentenced to death on the

recommendation of an all-white jury.

The 12 white faces on the jury were not the only white faces that would be determining the

sentence imposed on Tibbs. The victim of the shooting – Terry Robert Milroy – was also

white. Statistics show that defendants whose victims are white are four times more likely to

receive a death sentence than cases where the victim was from a minority race.

The odds were stacked against Tibbs before the trial had even started - he faced an all-white

jury and the victim of the shooting was white.

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Appeal To The Florida Supreme Court – Enough Evidence To

Convict?

On 14 December 1974 Tibbs was convicted in the Lee County Court in Florida on a three-

count indictment of rape, first-degree murder and felony murder. After convicting Tibbs, the

jury recommended that he be sentenced to death and the trial judge duly imposed the death

sentence. As a defendant upon whom the death sentence had been imposed Tibbs had the

right under §921.141(4) Florida Statutes (1975) and Fla. App. Rule 6.16 (b) to request that

the Florida Supreme Court review the conviction to determine if the interests of justice

required a new trial.

The Florida Supreme Court reviewed the entire transcript of Tibbs’ trial and was left with

“considerable doubt that Delbert Tibbs [was] the man who committed the crimes for which

he [had] been convicted”. The court gave its decision on 28 July 1976 and the decision for

Tibbs was by a narrow 4-3 majority. Giving the lead opinion of the court, Justice England

identified six “infirmities” in the evidence that convicted Tibbs and concluded his opinion by

stating that “rather than risk the very real possibility that Tibbs had nothing to do with these

crimes, we reverse his conviction and remand for a new trial”. In a concurring opinion,

Justice Boyd stated that his decision to reverse the conviction was based upon the

“weakness and inadequacy of the testimony against [Mr Tibbs] given in the trial court”. He

was also of the opinion that Tibbs should be “released from incarceration without further

litigation” and only reluctantly ordered that a new trial should take place because he felt

bound by Florida state law to do so.

Appeal To US Supreme Court - Double Jeopardy And Re-Trials

The case was, thereafter, remitted back to the Lee County Court for a new trial. Tibbs then

argued that because his conviction had been reversed on appeal he now had the protection

of the double jeopardy clause of the Fifth Amendment to the US Constitution and, as such,

the retrial was barred. This argument was successful and in late 1976 Judge Jack

Shoononver dismissed the indictment against Tibbs. Tibbs was released from custody on 8

January 1977 on a $ 90,000 bond.

The state of Florida then appealed the decision of the trial judge to dismiss the indictment on

the basis that the principle of double jeopardy was not applicable in Tibbs’ case. On 28

March 1979 the District Court of Appeal of Florida, Second District, reversed the decision of

the trial judge to dismiss the indictment and ordered a new trial.

Judge Boardman gave the leading opinion of the court. His analysis was that the Florida

Supreme Court had reversed Tibbs’ conviction because the majority concluded that the

testimony of the victim and Tibbs’ cellmate was not “believable and not substantial” in

character. He took this to mean that the Florida Supreme Court had taken a view on the

“weight” of the evidence, rather than its “technical sufficiency”. He went on to say that “the

reversal of [Mr Tibbs’] conviction was not on the basis of pure insufficiency of the evidence

but rather was bottomed upon the majority’s view that the evidence was weak and seriously

contradicted”. Because the conviction had been reversed on the basis that the evidence was

“weak” rather than “insufficient” the court held that the principle of double jeopardy did not

apply. The court based this finding on the United States Supreme Court decisions in the

cases of Burks v.United States and Greene v. Massey which were cited as authority for the

proposition that where an appellate court reverses a conviction solely on the ground of

insufficiency of the evidence, the double jeopardy clause prohibits retrial. Judge Boardman’s

reasoning in Tibbs’ case was that the double jeopardy clause prohibits retrial where an

appellate court reverses a conviction on the ground of insufficiency of the evidence. It,

therefore, follows that where an appellate court reverses a conviction on the basis of a view

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taken of the weight of the evidence then a retrial is permissible. Consequently, the decision

to dismiss the indictment against Tibbs was reversed and a new trial was ordered.

Tibbs appealed this decision to the Florida Supreme Court and that court gave its decision on

9 April 1981. Tibbs argued that the original decision to reverse his conviction was based

upon evidentiary insufficiency rather than evidentiary weight and, as such, a retrial was

barred by the principle of double jeopardy.

The court held by a narrow 4-3 majority that the original decision to reverse was based upon

evidentiary weight and the decision to order a retrial was affirmed. The leading opinion was

given per curiam and began by explaining the distinction between an appellate reversal

based upon evidentiary weight and one based upon evidentiary insufficiency and then went

on to determine whether the distinction should remain viable under Florida state law.

The court described “sufficiency” of the evidence as a “test of adequacy” and stated that

“sufficient evidence” is “such evidence, in character, weight, or amount as will legally justify

the judicial or official action demanded”. It went on to describe “weight” as “a somewhat

more subjective concept” and stated that the “weight of the evidence is the balance or

preponderance of evidence” and “it is a determination of the trier of fact that a greater

amount of credible evidence supports one side of an issue or cause than the other”. The

court then stated the general proposition that an appellate court should not “reweigh”

evidence submitted to a jury and held that “legal sufficiency alone, as opposed to

evidentiary weight, is the appropriate concern of an appellate tribunal”. In effect, it ruled

that the “evidentiary weight” category of appellate reversal should be eliminated from

Florida state law.

The court then had to apply these statements of principle to Tibbs’ case. It analysed its

previous decision to reverse Tibbs’ convictions and characterised the reversal as one based

on evidentiary weight rather than sufficiency. It commented that “in effect, we reweighed

the evidence supporting Tibbs’ conviction” and were, therefore, bound to hold that “judged

in light of today’s decision, this action was clearly improper”. The court was then faced with

three options as to how to proceed:

(1) Vacate the previous reversal of the conviction as wrongly decided and affirm the

conviction of the trial court;

(2) Discharge Tibbs from the indictment on the basis that in the previous decision it had

indicated “serious concern that Tibbs had nothing to do with these crimes”; or

(3) Affirm the previous decision and order a retrial.

The first option was rejected and rightly described as “unattractive” due to the prejudice that

Tibbs would suffer. The court felt unable to pursue the second option because it had already

held that Tibbs’ conviction had been reversed on the basis of evidentiary weight –

discharging Tibbs in these circumstances would have been contradictory because the court

had stated that double jeopardy did not apply to appellate reversals based upon evidentiary

weight. The court, therefore, chose the third option as the only remaining option.

Tibbs then appealed this decision to the United States Supreme Court and argued that

double jeopardy applied to cases where appellate courts reversed convictions based upon

the weight, as well as the sufficiency, of the evidence, and, as such, a retrial was barred

under the double jeopardy clause.

The Supreme Court disagreed with Tibbs and affirmed the decision of the Florida Supreme

Court by a 5-4 majority, giving its opinion on 7 June 1982. Justice O’Connor gave the

majority opinion. The evidentiary weight/sufficiency distinction was held to have been

clearly enunciated in Burks v. United States and Greene v. Massey. In those cases it was

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held that the double jeopardy clause operated in cases where reversals were based on

evidentiary insufficiency and this standard was explained as meaning “that the government’s

case was so lacking that that it should not even have been submitted to the jury”. She went

on to say that those cases were also authority for the proposition that a conviction would

survive review whenever “the evidence and the inferences therefrom most favourable to the

prosecution would warrant the jury’s finding the defendant guilty beyond a reasonable

doubt”. She explained that reversals based upon evidentiary weight were those where a

judge had disagreed with a jury’s resolution of conflicting evidence, opining that in these

cases “the appellate court sits as a “thirteenth juror” and disagrees with the jury’s resolution

of conflicting testimony”. An appellate reversal and subsequent retrial in these

circumstances was not oppressive because “the reversal simply affords the defendant a

second opportunity to seek a favourable judgment” i.e. the defendant is simply given

another chance at an acquittal.

Justice O’Connor then analysed the reasoning in Tibbs’ case and found that, ultimately, the

court had simply determined that Tibbs’ testimony was more reliable than that of the victim:

“This resolution of conflicting testimony in a manner contrary to the jury’s verdict is a

hallmark of review based upon evidentiary weight, not evidentiary sufficiency”. Having

already held that double jeopardy only applied to cases where the reversal was based on

evidentiary insufficiency, the court held that a retrial was not barred and the decision of the

Florida Supreme Court was affirmed.

Therefore, after exhausting all avenues of appeal, in June 1981 Tibbs still faced the prospect

of a retrial over eight years after the event. However, on 7 July 1982 the State Attorney,

Joseph D’Allesandro, withdrew the charges against Tibbs, thereby ending his ordeal once

and for all.

Sources

Center on Wrongful Convictions – Delbert Tibbs Chronology

http://www.law.northwestern.edu/wrongfulconvictions/exonerations/flTibbsChronology.html

Chaney v. State, 267 So.2d 65 Fla 1972

Delbert Lee TIBBS, Petitioner v. FLORIDA, 457 U.S. 31

Delbert Lee Tibbs, Petitioner v. Florida, 457 U.S. 31 (102 S Ct. 2211, 72 L.Ed.2d 652)

Heath v. State, 97 Fla 330, 120 So 846

Neil v. Biggers, 409 US 188, 93 S. Ct 375, 34 L.Ed.2d 401 1972

Nims v. State, 70 Fla 530, 70 So 565

Palm Beach Post, 29 July 1976

St Petersburg Times – Miami Herald, 7 Jan 1976

Thomas v. State, 167 So 2d 309 Fla.1964

Tibbs v. State, 337 So.2d 791 (1976)

Tibbs v. State, 397 So.2d (1981)

Case Review produced by Hodge Jones & Allen.

Chronology

DELBERT TIBBS

3 February 1974 Terry Robert Milroy, a twenty-seven-year-old white man, is

murdered and Cynthia Nadeau, his seventeen-year-old white

girlfriend, is raped near Fort Myers, in Lee County, Florida. Nadeau

describes the killer-rapist as a black man with a dark complexion

and pock-marked skin.

6 February 1974 Tibbs, a thirty-four-year-old African American hitchhiker from

Chicago with light skin and a clear complexion, is stopped near

Ocala, Florida, some 220 miles north of Fort Myers, questioned

about the crime, photographed and released.

12 February 1974 Despite the discrepancy between Tibbs’ appearance and her initial

description of the killer-rapist, Nadeau identifies Tibbs from the

photographs taken six days earlier. A warrant is issued for his

arrest.

15 March 1974 Tibbs is arrested near Clarksdale, Mississippi, and waives

extradition to Florida.

16 March 1974 Tibbs arrives in Fort Myers and is identified by Nadeau from a live

line-up that includes three other African American men.

27 March 1974 A Lee County grand jury indicts Tibbs for the murder of Milroy and

the rape of Nadeau.

11 December 1974 Tibbs’s trial opens before Judge Thomas Sands and an all-white

jury. State Attorney James R. Long is the prosecutor. Tibbs is

defended by Chicago lawyer George Howard.

14 December 1974 The jury returns guilty verdicts, recommending a death sentence

for the murder.

24 March 1975 Judge Sands sentences Tibbs to death in the Florida electric chair

for the murder and life in prison for the rape.

28 July 1976 The Florida Supreme Court reverses the conviction and remands

the case for a new trial based on the weight of the evidence - Tibbs

v. State, 337 So. 2d 788 (1976).

Late 1976 Judge Jack Shoonover holds that a retrial is barred by the double

jeopardy clause of the Fifth Amendment.

8 January 1977 Tibbs is released on a $90,000 bond.

9 April 1981 The Florida Supreme Court holds that because the verdict was

overturned on the weight of the evidence — as opposed to the

sufficiency of the evidence —Tibbs may be retried - Tibbs v.

Florida, 397 So. 2d 1120 (1981).

7 June 1982 The US Supreme Court affirms Florida Supreme Court’s double-

jeopardy holding - Tibbs v. Florida, 457 U.S. 31 (1982).

7 July 1982 State Attorney Long’s successor, Joseph D’Allesandro, drops all

charges against Tibbs.

Chronology produced by Hodge Jones & Allen.

Case Summary

DELBERT TIBBS

Summary

Delbert Lee Tibbs was convicted in 1974 of the first-degree murder of a 27-year-old man

near Fort Myers, Florida, and the rape of the man's 17-year-old female companion. Tibbs

was sentence to death for the murder and received a life sentence for the rape.

The victims were hitchhiking when, according to the young woman, they were picked up by

an African American man who shot her boyfriend to death, raped her, and left her bleeding

and unconscious beside a secluded road.

A few days later, Tibbs was hitchhiking 220 miles north of Fort Myers when he was stopped

by police, questioned about the crime, and photographed. Because he did not fit the

eyewitness's description, he was released. Nonetheless, the photo was sent to Fort Myers,

where the female victim identified him. A warrant was issued and Tibbs was arrested two

weeks later in Mississippi.

Tibbs waived extradition to Florida, where he was indicted even though he did not match the

original description the female victim had provided and he had a solid alibi. At trial, in

addition to the young woman's dubious testimony, the prosecution sponsored the testimony

of a jailhouse informant who claimed Tibbs had admitted the crime. An all-white jury

convicted Tibbs of both the murder and rape, the victims of which were white.

After the trial, the jailhouse informant acknowledged that he had fabricated his testimony

against Tibbs in the hope of receiving leniency in his own case, a rape for which he was

facing a life sentence.

In 1976, by a four-three vote, the Florida Supreme Court reversed and remanded the case,

holding that the evidence did not support the verdict. Tibbs was released in January 1977,

although he faced a possible retrial.

Finally, in 1982, Lee County State Attorney Joseph D'Allesandro dismissed all charges

against Tibbs and D'Allesandro's predecessor, James S. Long, who had handled the original

prosecution, declared that the case had been "tainted from the beginning and the

investigators knew it." If Tibbs had been retried, Long said he gladly would have testified as

a defence witness for Tibbs

Case Summary produced by Hodge Jones & Allen.