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Atlanta court rejects Dailey’s death row appeal with execution looming

James Dailey, 73, argues he is innocent of the 1985 murder of Shelly Boggio, 14, in Indian Rocks Beach. The Atlanta appeals court ruled he fell short of demonstrating that.
Left: James Dailey at his 1987 trial, when he was convicted and sentenced to death. Middle: Dailey in 1993, when he was again sentenced to die. Right: The most current photo of Dailey on Florida's Death Row. [Times, Florida Department of Corrections]

A federal court in Atlanta has rejected the latest appeals of James Dailey, the death row inmate who says he is innocent of a 1985 Pinellas County murder.

In an opinion issued Thursday, a three-judge panel of the 11th Circuit Court of Appeals disputed Dailey’s claims that new evidence suggests he was not involved in the murder of 14-year-old Shelly Boggio.

Dailey’s arguments are essentially the same ones he has raised for years, the court concluded. Other courts have repeatedly turned them down.

Carol Wright, Dailey’s lead federal attorney, decried the ruling in a statement Friday.

“This opinion is a prime illustration of the serious deficiencies in our appellate review system," she wrote. “The court today says that new evidence is not enough. The court today says that proof of innocence is not enough. The court today says even if the state’s theory of the conviction is disproved, if the court can imagine any scenario of guilt however implausible an innocent man can be executed. The system is broken.”

Related: Two men are in prison for the same Florida murder. One may be innocent. He also may be executed.
Shelly Elizabeth Boggio, 14, was killed May 5, 1985. The Kenneth City girl was beaten, choked and stabbed 31 times, then held underwater until she drowned, authorities said. She was found the next day near the Indian Rocks Beach bridge. [Times]

Dailey, now 73, was one of two men found guilty of Boggio’s murder. The girl’s body was found one morning in the Intracoastal Waterway near a bridge in Indian Rocks Beach. She was beaten, choked, stabbed more than 30 times and ultimately drowned. Evidence suggested the crime was sexually motivated.

While Dailey was sent to death row, his co-defendant, Jack Pearcy, received a life sentence. Dailey’s attorneys have argued that Pearcy alone is responsible for the crime.

Pearcy and Dailey were seen with Boggio the night before she was found dead. The men lived together with Pearcy’s girlfriend. When investigators questioned Pearcy, he implicated Dailey. There was no physical evidence or eyewitness testimony linking Dailey to the crime.

But three jailhouse informants testified at Dailey’s trial that they overheard him make incriminating statements. Defense lawyers have questioned the reliability of those informants. They include Paul Skalnik, whose prolific history as a jailhouse snitch was the subject of an investigative report published last month by ProPublica and the New York Times Magazine.

Florida Gov. Ron DeSantis signed Dailey’s death warrant in September, setting his execution date for Nov. 7. But a federal judge issued a stay of execution to give his attorneys more time to research and present their case.

The same judge later rejected a number of Dailey’s claims after a thorough review of the case. That led to the appeal to the 11th Circuit.

The judges wrote that Dailey has not met the high burden of showing that he is actually innocent.

“Dailey’s new evidence, at most, casts some degree of doubt on some of the testimony the State presented at trial,” Chief Judge Ed Carnes wrote. “The credibility of one of the three jailhouse informants, Paul Skalnik, has been called into doubt. But we are not jurors deciding in the first instance whether the State has proved its case beyond a reasonable doubt ...

“We are a court of appeals deciding more than 30 years after a murder whether the inmate who was convicted of it, and whose conviction has been upheld at every turn for three decades, has shown a reasonable likelihood of meeting the ‘extraordinarily high’ burden of making a ‘truly persuasive demonstration’ that he is actually innocent,” the judge wrote. "Dailey has not done that.”

In December, Dailey’s attorneys filed a new affidavit, which bore Pearcy’s signature, in which Pearcy claimed that Dailey had nothing to do with the murder.

Related: As James Dailey faces execution, co-defendant says, 'I committed the crime alone.'

Dailey still has an appeal pending before the U.S. Supreme Court. His attorneys are also seeking a full hearing on claims of new evidence in the circuit court in Pinellas County.

The governor has not set a new execution date.

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