The lawyer for Joseph F. Shea filed a motion Thursday to subpoena 53 witnesses at the state expense for a second murder trial scheduled for St. Valentine's Day.
Shea, now 26, served six years imprisonment for the kidnap-slaying of Mary Meslener, an airline reservations clerk, before a judge recently set aside the conviction and ordered a new trial.
Defense attorney Harry W. Prebish, representing Shea without fee, filed the 53-name list for submission to Dade Circuit Judge Gene Williams, briefly summarizing the expected testimony of each as required by law.
Witness No. 39 is Richard E. Gerstein. Wrote Prebish: "This witness is expected to testify that he is the state attorney who in 1965 said, 'There is substantial doubt in my mind of the guilt of Joseph Shea.' "
Sign Up and Save
Get six months of free digital access to the Miami Herald
The statement is based on conversations this newspaper reporter had with Gerstein. Asked for comment Thursday, Gerstein at first declared he had no recollection of such a statement and then declared: "I said that there are questions in the case that need to be resolved and that is why the state moved to the court for a new trial for this defendant." He denied making the statement quoted in the Prebish motion.
On Nov. 4, Gerstein joined a defense motion to set aside the conviction. His action was unprecedented in criminal law in Florida.
When doubts of Shea's guilt first arose last spring, Gerstein declared: "If Shea can be proven innocent of this crime, then we will move heaven and earth to see that he is immediately released from prison." Shea is still n jail.
The lack of diplomatic relations between the U.S. and Cuba has stymied Gerstein's own eight-month investigation of other suspects in the crime. Two persons critical to that investigation are now believed in Cuba.
In the Prebish motion, Arthur E. Huttoe, executive assistant state attorney, was listed as a witness to testify about that investigation.
Four other lawyers also are on the 53-name list, including Irwin J. Block and Edward Swan, who prosecuted Shea for Gerstein in 1959.
The 1959 defense lawyer Michael Zarowny, is expected to testify that he was denied the right to inspect evidence favorable to the defense, Prebish wrote. Attorney Ellis Rubin, the motion said, will testify Shea was deprived the right of counsel after the arrest.
The defense called no witnesses in 1959 when Shea, as a suicidal U.S. airman, repeatedly confessed and recanted guilt. Forty-eight of the 53 witnesses listed did not testify at the first trial.
The 48 include four scientists who will testify about Shea's blood-splattered shirt. The prosecution asserted in 1959 some of the blood was the victim's Type O. In recent weeks, the shirt was submitted to Dr. henry C. Freimuth, a Baltimore pathologist. He found only Shea's type B blood and no O-type, the motion said.
Also listed are eight military men, including Col. Joseph F. Caffall, chief of the military justice division, judge advocate general, who is expected to testify about Shea's Air Force records.
Named in the motion is a man, according to homicide records, who mad a statement he killed a woman the night of the murder, Feb. 23, 1959. The man was 19 years old at the time and police quickly discounted the statement.
Prebish will also ask the court to subpoena the victim's husband, Frank Meslener, and her brother, William Harvey. These two men asked State Attorney Gerstein if Shea would take truth serum. Meslener took such a test himself six years ago. Gerstein informally relayed the request to this newspaper. Last December, with the husband, brother and two police officers present Shea was given a truth serum test in the office of Dr. Michael Gilbert, a psychiatrist.