One man confessed to murder 48 years ago. Why is another still in prison for it?

Seth Miller visited his client at North Florida’s Jackson Correctional Institution in February of 2019 with some good news. The client, Thomas Gilbert, was serving a life sentence for a 1973 murder in North Miami Beach he always said he didn’t commit. 

That afternoon, Miller, the executive director of the Innocence Project of Florida, informed Gilbert they had discovered powerful new evidence of his innocence that included police files from 1977 containing an entire reinvestigation of his case with multiple witness statements saying Gilbert was not present, the results of a polygraph Gilbert took “exculpating” him, and a confession from a man who said he was the one who actually committed the murder. 

His entire time in prison, Gilbert had not known about this file.

And that wasn’t all. Miller told his client they also had a new witness in the case, a man who allegedly supplied the murder weapon. That witness said the real killer confessed to him – and Gilbert was the wrong man.

When Miller finished explaining what they had found, he recalled the 65-year-old convict, drawn and wiry in his blue prison uniform, looking at him intensely. 

“So, you got all of this?” he asked incredulously, with tears filling his eyes. “He hung his head and cried in disbelief that this material existed for over 40 years without him knowing about it,” Miller said.

However, it was clear to Miller and his co-counsel Krista Dolan they would have to act fast. They could tell after meeting the now 72-year-old Gilbert that he was showing signs of cognitive decline. It would be a race against time to help him while he still understood what was going on. 

Miami-Dade prosecutors resist new evidence

The idea that the police and prosecutors could make a mistake and wrongfully convict someone was considered remote back in the 1970s. But after DNA evidence began exposing miscarriages of justice in the 1980s, and after more than 3,600 exonerations nationwide since the National Registry of Exonerations began counting them in 1989, the concept of wrongful convictions has become a demonstrable fact. Prosecutor offices around the country began to set up conviction integrity units to review disputed cases. 

Between 2018 and 2019 forward-thinking prosecutors in Florida set up such units in Hillsborough, Broward, and the joint offices of Duval, Clay, and Nassau counties, as well as one covering Orange and Osceola counties. The Innocence Project of Florida worked with many of them, including a collaboration in Duval that led to the 2019 exoneration of two men based on mistaken witness identification after they’d spent 42 years in prison. 

So Miller and Dolan were optimistic when they took their evidence to the Justice Project inside the Miami-Dade State Attorney’s Office, which examines claims of faulty convictions, that same year. 

“Given that the case against him was predicated on single witness identification,” Miller said, “we felt we could approach them in good faith and say we feel very strongly about this case.”

But what was not good enough in the 1970s was still not good enough today. Justice Project lawyers rejected the notion that these witnesses were credible enough to overturn a conviction, and the information was old and known to them so it wasn’t considered “new” evidence, even if it was new to Gilbert. 

As far as they were concerned, Gilbert should remain in prison. “This case has previously been reviewed three times,” state attorney spokesman Ed Griffith wrote in an email to the Trident.

But it had only been brought to Gilbert’s attention now. Lost in those intervening years was Gilbert’s chance to question witnesses himself and follow up on leads from the file. Now all that time had passed and with those years much of the evidence. 

Miller has been with Florida’s Innocence Project for nearly his entire legal career, joining in 2006, three years after graduating law school. He’s been involved in roughly 20 exonerations. But this case was unique for him – never had he had so much evidence pointing to a client’s innocence and been met with such resistance from the authorities. 

Miller is something of a legal nerd. His son Gideon is named after the Supreme Court ruling giving criminal defendants a constitutional right to counsel. He wears bowties to court as an homage to the late Talbot “Sandy” D’Alemberte, one of the founders of the Innocence Project of Florida and an influential figure in his life. 

And he takes his role fighting against wrongful convictions very seriously. To know the state took away an innocent person’s freedom is something that “sticks with you, it doesn’t go away,” he said. “We have to keep moving forward, but that doesn’t mean we forget.”

The next step for Miller and his team was to get Gilbert’s case before a judge, and given Gilbert’s condition, they had to move fast.

No physical evidence

Back in 1973 Gilbert was a sharp-dressed ladies’ man who liked to play pool, according to his brother Ralph Gilbert. He couldn’t read or write well, Ralph Gilbert said, and he was too proud to admit it. “He had trouble learning and he didn’t like it when people called him dumb,” Ralph Gilbert said. 

His brother thinks Gilbert left school after the eighth grade. His learning challenges made it difficult for him to hold down a job, his brother said, and he got into a lot of trouble. He was sent to reform school twice as a juvenile and convicted of burglary at 18.

The murder he’s convicted of happened on October 25, 1973, when Gilbert was 20 years old. William and Eleanor Willits, a white couple from Virginia on vacation in North Miami Beach, were walking back to their room at the Ocean Shore Motel about 11:30 p.m. when two black men ambushed them in the motel’s covered breezeway. 

One held a gun, Eleanor Willits would later tell investigators. They demanded her jewelry and her husband’s watch. As the robbers were leading them back to their room, Mrs. Willits said she wanted to lead them away from the room towards people. Meanwhile Mr. Willits was walking in the other direction towards the room. In the confusion that followed, one of the robbers shot and killed Mr. Willits, who was 58 years-old. The two robbers sped away in a white Cadillac.

When shown several pictures in a mugshot book, Mrs. Willits was unable to identify a suspect, according to the Miami-Dade State Attorney’s summary of events included in a 2020 court motion. She did mention features the robbers had. “At one point she indicated she didn’t really even look at the faces of the assailants,” prosecutors noted. 

About a week later, North Miami Beach police investigating a robbery in the area stopped a white Cadillac, driven by Gilbert’s friend William Watson, with Gilbert in the passenger seat. 

Both men were arrested for that night’s robbery and fingerprinted. Then North Miami Beach police contacted the Metro-Dade detectives investigating the Willits murder and told them of the two suspects in a white Cadillac. When Metro-Dade detectives checked Watson’s fingerprints, they matched one found on the pizza box Mr. Willits was carrying. 

But no “physical evidence linked Gilbert … to this robbery murder,” according to prosecutors.

Detectives put together a photo line-up including Gilbert and Watson and traveled to Virginia to show it to Mrs. Willits. She identified both Gilbert and Watson as the men who robbed her and killed her husband. Watson and Gilbert were charged in the robbery and murder.

The evidence against Watson, including his fingerprint on the pizza box and his possession of Mrs. Willits’ necklace, was compelling, but the only evidence against Gilbert was Mrs. Willits’ identification of him from the photo lineup. 

Still, prosecutors at the time felt confident in her selection after she failed to identify anyone from other photo lineups and because Gilbert said he couldn’t remember exactly where he was the night of the murder, but thought he was at the pool hall, an alibi that couldn’t be verified.

Both men were convicted at separate trials six months apart and sentenced to life in prison.

“An innocent brother in prison” 

In 1974 Watson sent a letter to a friend named “Buck” in which he wrote that his co-defendant, Gilbert, was innocent of the Willits murder. 

“I hate to see the man in the position he is in,” Watson wrote, adding, “I will do anything in power [sic] other than play the part of the police to help the man regain his freedom.” 

In the letter, which was obtained by prosecutors, Watson wrote he signed a confession, against his lawyer’s advice, that Gilbert was not with him that night. “If it was anyway I could free Clap (Gilbert’s nickname) without involving anyone else believe me I would do it,” he wrote.

Three years after Gilbert’s 1974 conviction, a man named Allen Hicks wrote to the prosecutor in the case, and confessed that he, not Gilbert, was with Watson on the night of the murder, according to police records. This prompted police to reinvestigate the case. 

Metro-Dade Detective Jerome Coney interviewed Hicks, who said he was staying “on the beach” that night when Watson picked him up in his Cadillac. They drove to a location where Watson acquired the .32 caliber gun from someone named “Bill.”

According to Coney’s report, Hicks recounted the night vividly, including details only someone there would know. He explained he approached the female first, consistent with Watson’s version. He said he began walking away after robbing them when Mr. Willits threw a pizza box at him. At that point Watson yelled “look out!” and Hicks stuck out his left arm (Mrs. Willits said right hand) and shot Mr. Willits. 

Taken to the scene, he accurately described where the shooting occurred and where they dumped the purse. Hicks then identified the gun supplier as Bill Hearns and told police where he lived and tentatively identified Mrs. Willits from a photo line-up. 

When the detective questioned Hearns about Hicks, and offered immunity, he was equivocal and said he might have something to say if his lawyer assured him he was safe from prosecution. Later Hearns would recount that Coney, who died in 2021, appealed for his help, saying, “We have an innocent brother in prison and we’re trying to get him out.” 

Mrs. Willits returned to Miami to view a live line-up with Hicks in it, but she did not identify him.

Watson corroborated Hicks’ account, according to the final 1977 report and prosecutor’s notes: “Watson stated that it was in fact he and Hicks who committed the crime, and not Gilbert.” 

Initially Watson refused to cooperate with the re-investigation, but when he was brought into a room with Gilbert, he admitted it was Hicks, not Gilbert, who was with him and provided new details about the night, including that Mr. Willits threw the pizza box at Hicks and where they dumped the purse. But he refused to testify and said he would not incriminate himself in court.

Coney also took statements from three people in prison whom Hicks confessed to, and four people whom Watson had made a confession. Hearns said that while he was in prison Watson confessed to him as well. Once Coney concluded the re-investigation, he forwarded his findings to the Dade County (now Miami-Dade County) State Attorney’s Office.

It’s unclear how much of this information was presented to Mrs. Willits, but absent a recantation from her and a confession from Watson, prosecutors didn’t believe they could win a conviction against Hicks. 

They cast suspicion on all the evidence. Hicks, they noted, had been hospitalized for mental health problems, and a doctor who interviewed him during the 1977 re-investigation speculated he could have been coached on what to say to “win approval of his peers.” All the witnesses who heard confessions were convicted criminals and therefore deemed unreliable. “It was the opinion of the State … that there were not enough grounds to justify Gilbert’s [sic] release and the seeking of an indictment against Hicks [sic],” Coney wrote at the conclusion of his report in 1977.

The Innocence Project lawyers noted in court papers the irony of prosecutors not believing incarcerated witnesses trying to prove someone’s innocence, especially when they were not getting anything out of it for themselves, while those same prosecutors will routinely use jailhouse informants to prove someone’s guilt, and reward them for it. 

The defense team suspect prosecutors saw it as a zero sum equation: unless they could convict someone in place of Gilbert, Gilbert would remain behind bars. State attorney spokesman Ed Griffith denied this in an email. 

“Saying that the SAO would not exonerate an actually innocent man because evidence to convict a second subject is weak, is extremely offensive and highly unethical,” Griffith wrote.

The unreliability of eyewitness accounts

As more and more cases of wrongful conviction have come to light, law enforcement has changed tactics to try to prevent these kinds of mistakes from happening. Today, prosecutors are far more reluctant to move ahead on a case based solely on a single eyewitness identification of a stranger. 

Many departments now use “blind” photo-lineups, meaning an officer not involved in the case shows photos to the victim. That way they can’t consciously or unconsciously influence the victim. The “fillers,” people in the lineup not related to the crime, are supposed to resemble the actual suspect. 

All of this is because mistaken witness identification is a significant cause of wrongful convictions. Of the 3,659 exonerations logged by The National Registry of Exonerations, about 30 percent are a result of mistaken witness identification.

Other factors affect identification. The presence of a weapon in a crime has been shown to negatively affect a witnesses’ ability to remember a face, according to Dr. Nadja Schreiber Compo, a Florida International University professor in the legal psychology doctoral program. 

Cross-racial identification is also a cause for mistakes. Studies have shown that errors identifying an individual of another race, regardless of the race studied, are far more prevalent than identifying someone of the same race. Mrs. Willits was white; Gilbert and Watson were black.

The unreliability of eyewitness accounts was not well known in the 1970s when Gilbert was convicted. In fact, that decade is considered by experts to be the dark ages of witness identification. “There were no best practices in the Seventies,” said Dr. Schreiber Compo, who researches eyewitness memory and has been an expert witness in criminal cases. “The science was just beginning.”

Another reason for the prosecutors’ insistence on guilt in Gilbert’s case, both in 1977 and again more than 40 years later, is they just didn’t find Gilbert credible or sympathetic. Prosecutors with the Justice Project pointed out in court papers that in 1984 he was convicted of battery on a corrections officer who was trying to confiscate drugs Gilbert had in his cell. 

They also noted that Gilbert was released on parole in 1990, and within a year his original sentence was re-imposed after he was arrested on a drug possession charge and attempted burglary. Gilbert’s lawyers maintain neither incident has anything to do with guilt or innocence related to the murder case.

Prosecutors reject innocence claim 

During the past four decades, the main witnesses in Gilbert’s case – Watson, Hicks, and Mrs. Willits – have all died. 

Gilbert, meanwhile, kept appealing his case, and kept getting denied. He sought help from the Florida Legal Services Prison Project in the 1970s. Then in 2018, he wrote to the Innocence Project of Florida. 

Seth Miller and his team saw potential in the case and soon focused their efforts on Bill Hearns, the gun supplier, who was still alive at 70 years-old. Innocence Project investigator Jennie Nepstad met with Hearns in South Miami. At the meeting he was careful and said he wanted to talk to his lawyer first. But in later phone calls he repeated that Watson and Hicks confessed to him, without admitting he loaned them the gun. And he knew details, like Willits throwing the pizza box at Hicks. Eventually he agreed to testify.

Hoping that prosecutors in 2019 would have a different perspective than those in the 1970s Miller and his associate sent State Attorney Katherine Fernandez Rundle a memo requesting a “collaborative investigative effort” in the case. “We hope that after these investigative steps that you will agree to vacate the conviction and release Mr. Gilbert from his wrongful incarceration,” co-counsel Krista Dolan wrote.

The case was assigned to Michael Spivack and Victoria Brennan, both with the office’s Justice Project, the unit set up in 2003 to examine claims of wrongful conviction. 

But the Miami-Dade prosecutors didn’t embark on a “collaborative investigative effort” and ultimately rejected Gilbert’s claims of innocence.

Although the Miami-Dade State Attorney’s Office boasts on its website that it is a “pioneer” in this field because it set up the Justice Project more than two decades ago, the Justice Project is not considered a true conviction integrity unit by places like the National Registration of Exonerations, because its lawyers are not independent of the State Attorney’s Office. Justice Project lawyers still answered to supervisors in the office’s legal division, putting them within the office’s hierarchy. 

When the Trident asked the prosecutors for comment, Spivack requested questions be sent in writing. After receiving detailed questions, he declined to comment. 

Realizing the Miami-Dade prosecutors were working to maintain the conviction, the Innocence Project team took their last best shot in a December 2019 motion asking for a new trial based on the testimony of Bill Hearns.

The state fought back hard against the attempt to win Gilbert a hearing. Spivack and Brennan argued that in all the years Gilbert had filed appeals, he never used the term “innocent” to describe himself. (Gilbert’s lawyers countered he had always maintained his innocence, and whether he stated it in a legal motion is not relevant to whether evidence of his innocence exists.) 

The prosecutors also argued that the witness positively identified Gilbert repeatedly, and that he, Watson and Hicks were all unreliable, given their criminal backgrounds.

Despite those protestations, Eleventh Circuit Judge Miguel de la O appeared swayed by the accumulation of evidence in Gilbert’s favor and ruled that Hearns could testify. “He states, ‘If Hearns pans out, it could lead to exoneration,” Miller recalled. (Judge de la O declined to comment, but did not contest Miller’s recollection. No transcript of the hearing was available.)

But of all the strikes against Gilbert in his life, being born poor and black in segregated Miami, likely struggling with a learning disability and drug addiction, the cruelest twist of fate was yet to come. 

Four days after the judge ruled that Hearns could testify, someone came up to him while he was sitting in his red pickup truck near his West Perrine boarding home on January 18, 2021 and shot him dead. Authorities don’t believe it was related to his pending testimony. Hearns was a drug dealer, and police found 1,000 grams of crack cocaine, 5,100 grams of powder cocaine, and $6,000 cash in his room.

Still hope to free Gilbert  

Hearns was the last living witness who could testify on Gilbert’s behalf. Miller learned of Hearns’ death when a Miami Herald reporter called him a few days later and asked if this was the same Bill Hearns who was going to testify in Gilbert’s case. Miller was too stunned to comment.

On March 11, 2021, the Miami-Dade State Attorney’s Office moved to dismiss the case. “The pending petition argues that the testimony of Mr. Hearns, when taken in conjunction with all the evidence presented at the previous trial of this matter, would probably result in an acquittal at a retrial of this matter. Mr. Hearns is deceased…rendering the pending petition moot,” Assistant State Attorney Spivack wrote.

But before the judge could rule, Miller voluntarily withdrew Gilbert’s petition. He hoped some new evidence might come up in the future and this move would make it easier to reinstate the case. It also allowed Miller to condemn, on the record, the course of events that would keep Gilbert incarcerated.

“Thus, due to unfortunate happenstance, Mr. Gilbert will remain wrongfully convicted and incarcerated despite evidence that two others committed the crime for which he is convicted. Due to an untimely death of a witness almost 50 years after the crime, Mr. Gilbert may die in prison for Hicks’ and Watson’s crime,” Miller wrote in his motion.

The case was over. For now. The Innocence Project of Florida hasn’t completely given up. 

Gilbert’s lawyers are hoping to appeal for compassionate release, given their client’s age and medical condition. Family members have said they would take him in. They are all hoping the State Attorney’s Office will join them in that effort. 

Weeks after the case was voluntarily withdrawn, Seth Miller returned to Jackson Correctional to meet Gilbert and explain what happened. His client’s cognitive decline had worsened since they had last met.

“He didn’t understand,” Miller recalled. “He kept saying, ‘Well what about the evidence?’ I tried my best to explain to him we needed a live witness to open the case for us.”

Gilbert kept shaking his head in disbelief. And then he uttered words Miller said will haunt him the rest of his life: “He said to me, ‘You have all the evidence to prove my innocence and you’re telling me you can’t?”