Ates murder conviction in question

Ten years ago, Jimmy Ates was sentenced to life in prison for the brutal murder of his wife.

He's been fighting for a new trial ever since.

In a stunning development early this month, the state attorney's office in Gainesville - the office that convicted him - announced that it feels he deserves one.

"My brother is tickled to death," said Luther Ates. "My brother is ecstatic."

Jimmy Ates, a former teacher at Baker School, was convicted in 1998 of shooting his wife, Norma Jean Ates, in 1991 at their home in Baker and then setting the house on fire.

Prosecutors said he shot Norma several times with a 22-caliber revolver and then started a delayed-reaction fire in their home before he left to attend a baccalaureate ceremony at the school.

Ates has doggedly maintained his innocence, and he and his family have worked since his conviction to get his life sentence overturned.

In Ates' first motion for a new trial in 2003, he claimed his attorneys were ineffective. Okaloosa County Circuit Judge Thomas Remington denied the request.

But his latest motion to vacate the sentence was compelling enough to persuade Remington to call for a review of its merits.

The motion questions ballistics evidence used at the trial and points out what the state terms "certain failures of the discovery process" that hindered Ates' right to a fair trial.

Geoffrey Fleck, an assistant state attorney with the 8th Judicial Circuit, studied the motion and wrote a 39-page report that concluded, "It is the state's belief that the defendant should be granted a new trial.

"I did what I felt was the right thing to do, which is what I'm sworn to do," Fleck said.

The report arrived at the Okaloosa County Courthouse Annex in Shalimar about two weeks ago.

Staff attorney Scott Reagan is reviewing Fleck's report. He said he should have a summary available for a judge's review late this week.

Reagan said the prosecutor's request for a new trial is extremely rare and "carries a lot of weight."

Reagan said Ates' case is a priority and a decision whether to grant the new trial "will probably be made within the month."

Remington, who had not seen the report, said Wednesday that he would be inclined to grant a new trial based on a recommendation from the state attorney's office.

However, the Ates' case was assigned to Circuit Judge William Stone on Thursday.

Stone said Friday he had little information about the case and could not comment.

The findings

Fleck said he requested a new trial primarily because "expert" ballistics evidence presented at Ates' trial has been determined to be "unreliable and inaccurate."

At the trial, Kathleen Lundy, a Florida Department of Law Enforcement agent assigned to the FBI as an expert in metallurgy, or bullet lead analysis, testified for the prosecution.

No murder weapon was ever found, but Lundy said a bullet found in the mattress under Norma Ates' body matched bullets found in Jimmy Ates' utility room and a cartridge found in his car.

She testified that she determined that all the bullets had likely been manufactured by the same company at about the same time.
That linked Ates to the crime, the prosecution argued.

But as Ates pointed out in his motion to vacate the sentence and Fleck noted in his report, the FBI suspended bullet lead analysis in 2004.

Then in 2005, the FBI announced it would no longer use the procedure at all "because the science was simply wrong," Fleck said.

Fleck stresses in his report how strenuously prosecutor Rod Smith had pressed the bullet issue during Ates' trial. He notes that the jury could never have known how "unreliable and inaccurate" Lundy's testimony could have been.

"The faults of metallurgic testing procedures only became known years after the defendant's trial and conviction," Fleck said in his report.

The state "cannot endorse ... any first-degree murder conviction predicated on a jury's probable misunderstanding of the probative value of evidence emphasized as conclusive by the prosecution," Fleck added.

The Innocence Project, a national organization dedicated to using DNA evidence and new technology to free people wrongfully imprisoned, has taken an interest in the discredited bullet lead analysis.

The group "is interested in determining whether improper bullet lead analysis testimony was material to the conviction of any defendant," Fleck notes in his report.

Seth Miller, executive director of the Innocence Project in Florida, said his organization will check Ates' case, speak to him and possibly offer him defense assistance if his case is retried.

"We'll be taking a look at it to see what we can do," Miller said.

Fleck also cited the prosecution's "failures" in handling of fingerprint evidence in the Ates case.

In his motion to vacate, Ates claims prosecutors withheld fingerprint evidence he has since obtained.

Ates' received two reports written by an FDLE analyst discussing a fingerprint lifted from a utility room where the type of bullets presumed to have killed Norma Ates were found. As it turned out, the fingerprint did not belong to Ates, his wife or lawmen most likely to have left a print at the crime scene.

Prosecutors never made the questionable fingerprint evidence available to Ates' defense team.

"Reference to the ... reports does not appear to have been disclosed in any of the state's discovery responses," Fleck states in his report.

"The evidence now discovered by the defendant suggests some unknown party had access not only to an unlikely area of the Ates' residence, its utility room, but to ... the location of the shooter's bullets," Fleck states.

Conviction questioned

Attorneys Don Dewrell and Drew Pinkerton defended Ates in 1998. Although Ates has accused them of improper representation for failing to allow him to testify - a charge both men deny - they said they would love to see him get another trial.

"I didn't think he was guilty when I defended him," Dewrell said. "I'm excited he's getting a new trial. He should get one in the interest of justice."

The evidence at Ates' trial was circumstantial and weak, Pinkerton said.

"My position hasn't changed since the closing arguments. I thought the evidence was insufficient to convict," Pinkerton said. "The jury didn't agree."

Prosecutors waited six years and 23 days from the day of Norma Ates' killing to charge her husband with murder.

In that time, the case was passed from Florida's 1st Judicial Circuit to the 4th Judicial Circuit and finally to the 8th Judicial Circuit.

Prosecutors in the 1st and 4th circuits declined to take the case to court. Dewrell, who signed on early to defend Ates, said he had begun to question whether charges would ever be brought.

But Norma Ates' death had shocked the Baker community and her family wanted Jimmy Ates to face trial, Pinkerton said. Pressure to bring charges against him was persistent and far reaching, he added.

"I don't know the dynamic, but our impression always was that somebody in Tallahassee had pressure being put on them," he said. "I think it was the squeaky wheel gets the grease kinda deal."

Assistant State Attorney Rod Smith agreed to take the case at the request of then-Gov. Lawton Chiles. Smith was elected to the state Senate two years after the trial and ran for the Democratic nomination for governor in 2006.

He now works for the Gainesville law firm Avera and Smith. He did not return a phone call seeking comment.

Louise Kotarba, Norma Jean Ates' mother, declined comment when reached by telephone Friday.

Can the case be retried?

Judge Stone must sign off on Fleck's request before Ates gets a new trial. Most legal experts believe there's no real reason to deny the request.

Fleck said he'll wait to hear from Stone before he decides his next step in the case.

"We'll take it one step at a time," he said. "We'll have to talk to witnesses and do all kinds of analysis before we can decide whether we can or will try it again."