24-year-old Joyce Cohen went from rags to riches when she met and
married Miami construction millionaire Stan Cohen in 1981. Together,
the couple lived lavishly in an exclusive Coconut Grove mansion, went
skiing at their Steamboat Springs ranch, and partied all night long at
Stan's Miami nightclub.
But Joyce's party
came to an abrupt end on March 7, 1986, when she frantically called
911 claiming that Stan had been murdered by three intruders that had
broken into their mansion. To cops, the story seemed plausible.
At the time, Miami
was plagued with home invasion robberies and, like many Miami real
estate developers in the 1980s, there were rumors that Stan was
involved with some shady characters. But when a convicted felon
already serving jail time came forward with information that Joyce had
hired him and his friends to do Stan in, cops swept in and arrested
At trial, prosecutors
painted Joyce as a gold-digging murderess who killed Stan after he had
threatened divorce. Faced with losing the luxurious life-style she had
grown accustomed to, Joyce had plotted her husband's murder with three
men she had met on the Miami club scene.
The jury found her
guilty of murder but was unable to reach a unanimous decision at her
sentencing. With the jury deadlocked, the judge sentenced her to 25
years to life. Joyce will be eligible for parole in 2014.
Jail informant's credibility on trial
- The Miami Herald
Feb. 23, 2002
No one made much of an effort Friday to vouch for
the credibility of Frank Zuccarello, a jailhouse informant whose
testimony helped put four people in prison for murders in Miami-Dade
Prosecutors said there was no need.
Zuccarello is an admitted home invader whose
accounts helped deliver convictions in two notorious murder cases from
1986: the slaying of millionaire Miami developer Stanley Cohen and the
killing of 11-year-old Staci Jazvac in Broward.
After years of legal impasse, a defense attorney
hopes to prove once and for all that Zuccarello was lying. The stakes
are high. There was little but Zuccarello's story to support the
conviction of Anthony Caracciolo as the man who shot and killed Cohen.
''A manifest injustice has been done, because an
innocent man is behind bars,'' said Rhonda Anderson, attorney for
Caracciolo, speaking in a hearing before Miami-Dade Circuit Judge
Lawrence Schwartz. Schwartz said he will issue a ruling next month.
Miami-Dade prosecutors assailed Caracciolo's
''newly discovered evidence'' as more rehash: leftovers from the 1989
Cohen murder trial, reheated and dressed up as new.
''The claim, essentially, is that Frank Zuccarello
is a liar,'' said Assistant State Attorney Abe Laeser. ``That claim
has been hanging around the state's neck since the summer of 1986,
when Stanley Cohen died.''
Arrested for a string of home-invasion robberies in
1986, Zuccarello turned informant and started talking about
high-profile murder cases.
He told police that widow Joyce Cohen had hired
him, Caracciolo and a third man, Tommy Joslin, to murder her husband
in his bed. He also said a cellmate named Michael Rivera had admitted
to the murder of Staci Jazvac, a girl of 11 who was pulled from her
bicycle, murdered and dumped in a field in Coral Springs.
Rivera was sent to Death Row in 1987 for the Jazvac
slaying. A jury convicted Joyce Cohen of her husband's murder in 1989.
Caracciolo and Joslin pleaded no contest to the Cohen murder in 1990.
Zuccarello, charged with 23 felonies, got out of
prison after 2 ½ years on a plea agreement.
Caracciolo's bid for a full evidentiary hearing is
based on new evidence of perjury by Zuccarello:
• A 1999 affidavit from
Broward Sheriff's criminal investigations chief Tony Fantigrassi. The
BSO major says Zuccarello made statements ''suggesting he had lied in
the Cohen case'' and that he considers Zuccarello ``an untrustworthy
• 1999 affidavits from
two other law enforcers casting doubt on Zuccarello's credibility.
• 1998 sworn statements
from a TV news reporter and cameraman stating that a Miami police
investigator told them Caracciolo had no role in the slaying.
• Evidence that several
law enforcers shared misgivings about Zuccarello with Dade prosecutors
as early as 1989 and that the prosecutors kept the information to
But prosecutors questioned Friday whether any of
the evidence is really new.
The rules that govern Florida courts place a
two-year time limit on motions to vacate a sentence in most cases. One
exception: newly discovered evidence that was previously unknown to
the defendant and could not have been found through ``due diligence''.
A stack of new statements questioning Zuccarello's
credibility, prosecutors said, do not add up to new evidence.
''These are new affidavits. But not new issues,''
Laeser said Friday. "There has to be a sense of finality in these
Anderson countered that the damaging statements
weren't publicly known until the late 1990s. Caracciolo had no lawyer
and wrote court filings by hand through much of that period.
The convict did not attend the hearing. But his
uncle, Joe Caracciolo, was there.
''I believe he's innocent,'' the elder Caracciolo
said. "I know he's innocent.''
Stanley Cohen: A Miami Fairy Tale Gone Wrong
By Matt Meltzer - MiamiBeach411.com
February 19, 2008
It started out like any good Miami love story: Boy
meets girl. Girl is half boy’s age. Boy has money. Girl is attractive.
Boy dumps older fiancée for girl. Girl gets hooked on cocaine. Boy
cheats on girl. And while such a tale is rather nondescript in the
shallowness that is love on Biscayne Bay, it typically does not end in
a high profile trial complete with celebrities, hitmen, and crooked
cops. But this was the story of poor Stanley Cohen and the cast of
characters that may or may not have done him in.
STRIKING IT RICH AT
THE RIGHT TIME
Stanley Cohen moved to Miami from Long Island as a
small child, and by the mid-sixties was running his own
self-monogrammed construction company, SAC construction. His timing
was impeccable, as just as his company was getting off the ground, the
South Florida population boom began, and within a short amount of time
he was a very wealthy man. With this wealth came multiple divorces,
and eventually he found himself single in 1974.
Enter Joyce Lemay, a young single mother who had
just moved to Miami that year and was working as a secretary at SAC.
Joyce had grown up in and out of foster homes as a child, and married
and had children very young. She was all of 24 years old, and the 40
year-old Cohen was smitten when he walked in to see her working in his
office. So much so that he dumped his current fiancée and married
young Joyce on December 5, 1974.
FAIRY TALE GONE BAD
But, as was expected, the South Florida fairy tale
did not last long. As young women thrust into the high-end lifestyle
of rich, older men tend to do, Joyce began to become slightly more
appreciative of the finer things in life. She vacationed around the
world with her husband, and sometimes without. She partied until all
hours in clubs like the Champagne Room, and, since it was Miami in the
1980’s, she dabbled in cocaine. About once every 15 minutes.
Their lifestyle was that of any of the privileged
down here at the time: Lots of drugs, lots of parties and endless
conspicuous consumption. During the marriage, Joyce had gone to
interior design school and she spared no expense in furnishing the
couple’s Coconut Grove mansion. He bought a 650-acre ranch in
Steamboat Springs, Colo., so they would have a place to ski. In
Steamboat as well, Joyce was the constant party girl, becoming friends
with the city’s elite including country star Tanya Tucker.
But as Joyce’s partying raged on, her marriage
declined. She became perpetually unhappy and soon Stanley turned to an
ex-girlfriend for love. While this enraged Joyce, she wanted out of
the marriage for a variety of reasons, telling several friends that
she just wished there was a way Stanley could end up dead. You see,
Joyce had gotten used to her fast-lane lifestyle and did not
particularly feel like going back to the
welfare-line-and-clerical-jobs existence she had suffered through
before 1974. And if she divorced him, well, she got nothing.
JOYCE GETS HER WISH
Around 5 a.m. on the morning of March 7, 1986,
Joyce Cohen called 911 screaming about her husband having been shot.
Paramedics arrived at their Coconut Grove home, finding three bullets
in Cohen’s head and a fourth having grazed his scalp. Joyce said she
had seen two men creeping around the house near the time of the
murder. Strangely, her burglar alarm had been shut off and her guard
dog had been locked in a back room with Mrs. Cohen. Investigators were
Joyce was taken to Miami police headquarters for
questioning about the incident. When asked about the couple’s sex
life, she realized she was then a suspect and got a lawyer. She
returned to her home and kicked all the crime scene investigators out,
forcing them to go back and get a search warrant. This bought her
about eight hours.
While outside, police found a .38-caliber revolver
sitting in some plants, wiped clean of prints and sporting some pieces
of tissue in the trigger mechanism. Once they finally got inside the
house, police found a tissue in the garbage which had mucus membrane
and gun powder on it. Again, signs were beginning to point to Joyce.
Her story had more holes in it that her late
husband’s head. She had called 911 after 5, but one witness claimed to
have heard gunshots around 3. Because Joyce had kept police waiting
outside her home, they were unable to accurately find the time of
death. Joyce had powder residue on her hands, and more powder on the
tissue she had used. And, while she claimed that the break-in had been
some sort of robbery, nothing was overturned or missing. Odd, since
the couple kept large amounts of cocaine and cash lying around the
The police still did not feel they had enough
evidence to arrest Joyce Cohen. But a few days after Stanley Cohen’s
murder, Broward police arrested a man name Frank Zuccarello for a
series of home invasions in Dade and Broward counties. Zuccarello was
the head of a large gang of home invaders, and was the first to be
arrested. Desperate to avoid a long prison term, he started to sing.
In addition to providing information about a couple
of other murders, Zuccarello told police that Joyce Cohen had hired
him and two other men to kill Stanley. She had met them repeatedly, he
told police, giving them a layout to the house, Stanley’s gun, and her
assurance that the alarm and guard dog would be neutralized during the
“invasion.” For their troubles they were to receive about $150,000
worth of cocaine.
THE BAD GUYS GET
With the testimony of the home invasion leader and
the other physical evidence, police finally felt they had enough to
charge Joyce Cohen. They flew to Chesapeake, Va., where she was living
in a trailer park with her new husband, and arrested her for her late
husband’s murder. Despite her now meager lifestyle (Stanley’s children
had successfully gotten an injunction against Joyce getting any money,
which had only amounted to $2 million anyway) she still maintained the
services of famed Miami defense attorney Alan Ross.
Zuccarello’s alleged accomplices, Thomas Joslin and
Anthony Caracciolo, were not as quick to admit as their cohort. Both
men insisted they had nothing to do with the murder, but investigators
continued to try and squeeze information out of them. Eventually,
facing guaranteed long prison terms for the home invasions they too
had been charged with, the men reluctantly pled no contest to the
second degree murder charges. Caracciolo received 40 years in prison
(since he was the alleged trigger man) and Joslin got 30.
But the men maintained their innocence.
After two and a half years of working on the case,
Joyce Cohen’s murder trial began in October of 1989. Witness after
witness came to the stand, friends, business associated, and even
Tanya Tucker, telling of how Joyce had been hooked on cocaine and
wanted out of her marriage. But the most damning was the testimony of
home-invader-turned-star-witness Frank Zuccarello.
He told the jury of meeting with Joyce Cohen, of
planning to commit the murder, of going into the house with Joslin and
Caracciolo and watching the latter man pull the trigger. He said that
the woman had wanted her husband dead, and he and his men had made it
Six weeks after the trial began, Joyce Cohen was
found guilty of first-degree murder and received life in prison.
CONVICTED BY A LIAR
But, as always seems to be the case in the South
Florida criminal justice system, the story hardly stops there. In
1993, a couple of things happened that cast serious doubt on the
official story of the murder of Stanley Cohen.
First, a book titled “In the Fast Lane, a True
Storey of Murder in Miami” came out, written by attorney Carol Soret
Cope. In it, she revealed that star-witness Zuccarello failed three
separate lie detector tests during his interrogation about the Cohen
murder, and changed his story several times. First he had been in the
room, then he had been outside, then he had been creeping up the
stairs. His story was in perpetual flux, and new doubts were arising
in the case.
As a follow-up, WPLG reporter Gail Bright found out
in an off-the record interview with lead detective Jon Spear that he
felt that Joslin and Caracciolo might not be guilty. Essentially, he
said police knew Joyce had committed the crime but didn’t have enough
evidence to convict her. The only way they could bring her in was in
conjunction with Zuccarello’s story, which was, as the book had
implicated, far from credible.
Because polygraphs are not admissible in court,
neither Zuccarello’s failing exams or the two hitmen’s inconclusive
ones were allowed in. But in a 1998 Miami New Times article, extensive
interviews with Spear, Joslin and Caracciolo indicate that police may
have helped Zuccarello along in order to get the real villain, Joyce
NEW TRIALS ABOUND
Alan Ross, of course, is also insisting that his
client should get a new trial. Even though throwing out Zuccarello’s
testimony would be most beneficial to the two hitmen, it may also open
things up for Joyce. Dade County criminologist Gopinath Rao said the
amount of powder residue on Joyce’s hands was consistent with someone
who was near a gun being fired, but not necessarily that of someone
who fired the gun herself. This of course, means that if there were
not hitmen in the room, and she didn’t shoot Stanley, then she must be
innocent. Or such is the logic of a defense attorney.
As it stands today, everybody is trying to get a
new deal, but nobody has walked outside of a correctional facility.
Everyone, that is, except Frank Zuccarello, who took a plea bargain
and may have sent at least two “innocent” men to prison. While
everyone else associated with the home-invasion gang has done their
time by now, Joslin and Caracciolo still sit behind bars. As does
Joyce Cohen, the unfortunate underside of a Miami fairy tale gone
horribly, horribly predictable.
Revisiting a Case of Murder
In 1989, a woman was convicted in her husband's
slaying. Now a TV reporter breaks her 5-year silence, tells of
By Mike Clary - Los Angeles Times
December 8, 1998
MIAMI — On the night he was murdered,
barrel-chested millionaire Stanley Cohen went to bed as usual--nude
His glamorous young wife, Joyce, stayed up late.
After 11 years of marriage, the couple's relationship had hit the
shoals. Both were having affairs. They had not slept together for two
In a downstairs bedroom of their bluff-top Coconut
Grove home, Joyce said, she was sorting through clothing for a garage
sale when she heard a loud banging noise.
Following her startled Doberman pinscher, Mischief,
Joyce said, she ran into the hallway just in time to see two shadowy
figures bolt from the house.
Upstairs, 52-year-old Stanley was dead, four bullet
holes in the back of his head. As blood spread onto the designer
sheets, Joyce grabbed a towel and pressed it to the gaping wounds. And
then, she said, she summoned police.
In Miami, the slaying caused an immediate
sensation. Stanley was a well-known and prosperous builder. When not
playing host to local powerbrokers at Buccione's, a chic restaurant
they owned, the Cohens might be jetting off in their private
Sabreliner 60 to their mountain ranch in Steamboat Springs, Colo.
Joyce, 16 years younger than her husband, was an
immediate suspect. Friends told police she wanted a divorce but feared
losing her moneyed lifestyle. And police found it strange that the
alarm system had been turned off, that Stanley had been shot with his
own gun and that no neighbors reported hearing Mischief bark.
Despite their suspicions, police did not charge
Joyce with the March 1986 killing until 2 1/2 years later, after Frank
Zuccarello, 25, a jailed member of a home-invasion robbery gang, came
forward to tell police that he and two accomplices had been hired by
Joyce to kill her husband.
"She's a killer," prosecutor John Kastrenakes told
jurors at the close of a 3 1/2-week trial. "Do not feel sorry for her
because she's a woman. She's a cold, calculating murderess who put on
a good show for everyone."
The jury agreed. Found guilty of first-degree
murder, Joyce was sentenced in November 1989 to life behind bars.
And the state's maximum security prison for women
is where she has remained--with scant hope of early release until five
months ago, when a local television reporter stepped forward to reveal
a secret that she had kept for five years. In a sworn statement, Gail
Bright said that the lead detective in the case told her--off the
record--that Zuccarello was coached to lie about his involvement in
In her statement, Bright recalled her 1993
conversation with Miami police Det. Jon Spear: "And he said, 'We
believed all along that Joyce killed her husband . . . but we didn't
have the evidence to back that up.'
"And I said, 'Well, are you telling me that those
three guys were not there? Is that what you're telling me?'
"And he said, 'That's right. They weren't there.' "
For five years, Bright said, she has been tormented
by the knowledge that police may have framed Joyce. But she kept quiet
out of fear that she would lose her police sources--and possibly her
Joyce's attorney, Alan S. Ross, immediately filed a
motion to have her 1989 conviction overturned, citing evidence he says
was "invented and fabricated" by the Miami police.
Now Miami ponders two questions: Will Joyce Cohen
get a new trial? And how could a newswoman have stifled such explosive
Two First Met at Construction Site
Stanley Cohen was a burly, hard-driving kid from
Miami who went to the University of Florida in Gainesville, earned a
civil engineering degree and the nickname Crusher, married his college
sweetheart and came home to make a fortune building schools, shopping
centers and a courthouse.
After his third divorce, Stanley was enjoying the
single scene. And then one day he spotted dark-eyed Joyce Lemay
McDillon, working as a secretary on a construction project.
At 24, Joyce had come to Miami with her son to
escape a failed marriage. Despite her hardscrabble background, she had
a stylish vivacity that complemented her exotic good looks. And
Stanley was smitten.
The Cohens were married in Las Vegas in December
1974. Over the next few years, Joyce took up the life of wealthy
society wife with ease and, according to friends, Stan delighted in
financing it. After buying a landmark coral rock home for his new
family, Stan adopted Joyce's 5-year-old son, paid for her to study
interior decorating and seemed only too happy as his wife prowled
Miami in her white Jaguar for expensive furnishings, jewelry and
As the 1980s dawned, the Cohens' circle had
expanded to include not only the trendy clubs sprouting up in Coconut
Grove but also spots in Steamboat Springs, where Stan bought a
600-acre retreat he called Wolf Run Ranch. The Cohens visited there
frequently--to ski in the winter, just relax in the summer or
The '80s also ushered in the age of cocaine. In the
social swirl that kept the Cohens running between Miami and Colorado,
their drug use was increasing, friends reported, and so too was
Weeks before her husband was killed, Joyce met
Tanya Tucker at a party, and the country music star ended up spending
the night at Wolf Run. According to a 46-page sworn statement by
Tucker, the two women drank champagne, tooted a little coke and Joyce
bared her soul.
Tucker said Joyce complained that she was
"miserable" in her marriage and expressed her belief that her husband
had gotten a girlfriend pregnant. "Bottom line," Tucker told police,
"she was extremely unhappy. Not just sad--it didn't seem like it was
something that was going to go away."
Children Suspected Wife Was Killer
When Stanley turned up dead, police were not the
only ones who immediately suspected his wife. His two children from a
previous marriage--Gary Cohen, a Miami lawyer, and Gerri Cohen
Helfman, a well-known local television anchor--also believed their
stepmother was guilty.
After five months went by without police making an
arrest, the children filed a civil suit that accused Joyce of either
killing or conspiring to kill their father. They asked for $5 million
Joyce called a press conference to announce the
results of a polygraph test that she said proved her innocence. Then
she counter-sued the children for slander. She asked for $11 million.
Both suits were dismissed.
In the meantime, after seeing a TV report on the
murder, Zuccarello summoned detectives to his jail cell in neighboring
Broward County, where he was being held on burglary charges.
Over several months, and in scores of meetings,
Zuccarello outlined for detectives a shadowy scenario in which he and
two confederates--Anthony Caracciolo, the alleged triggerman, and
Tommy Lamberti, the son of reputed Gambino crime family mobster Louis
"Donald Duck" Lamberti--were hired by Joyce to kill her husband in
exchange for $100,000 of her inheritance.
During his conversations with police, Zuccarello
was rewarded for his cooperation by being checked out of jail about 60
times for police-escorted trips to see the Miami Dolphins, to see his
girlfriend and to get his hair cut at his favorite salon.
In November 1988, 2 1/2 years after someone put a
gun to the back of Stanley's head as he slept, his widow was charged
with first-degree murder, conspiracy to commit first-degree murder and
possession of a firearm during commission of a felony. When arrested,
Joyce was living in a Chesapeake, Va., trailer park run by her new
boyfriend. Before Stanley's insurance company got around to paying his
heirs, Joyce had already been charged. She never got a dime.
Prosecution Plan Starts Unraveling
Even before jury selection began in the fall of
1989, the state's plan to use the three alleged killers as prosecution
witness showed signs of unraveling.
Lamberti's lawyer, Edward O'Donnell, asked to
withdraw from the case, telling the judge that his client admitted to
him that he planned to lie about being involved in the murder in
exchange for a 10-year reduction of the 22-year robbery sentence he
was serving. Like Caracciolo, O'Donnell said, Lamberti was prepared to
plead guilty to second-degree murder while insisting he had never met
Joyce or been to her house.
Marsha Lyons, a former federal prosecutor, was
named to replace O'Donnell as Lamberti's counsel. But she too had
problems with her client's plans to commit perjury, and she eventually
withdrew as well. "It was a very troubling case," Lyons said. "Knowing
that two lawyers had come to the same conclusion should have been
troubling to the prosecution too."
Prosecutors feared Lamberti and Caracciolo would
not back Zuccarello's story. They never took the stand. But Zuccarello
From the witness stand, Zuccarello said that on the
morning of the murder, Joyce let the trio into the house, quieted the
dog, handed them a gun and said, "Hurry up, get it over with."
Zuccarello said that he stood by the door while Caracciolo went
upstairs and executed Stanley.
Ross cross-examined the star witness vigorously,
pointing out inconsistencies in his statements and descriptions of the
alleged meeting in which Joyce supposedly gave the men a map to the
house and a down payment on their fee.
But Zuccarello was not the prosecution's whole
case. They had the murder weapon, Stanley's .38-caliber Smith &
Wesson, found in the bushes near the house. It was clean of
fingerprints, but stuck to the revolver were tiny pieces of tissue
consistent with a tissue containing gun powder residue recovered from
Ross implored jurors not to find his client guilty
simply because she used cocaine and cheated on her husband. "Brand her
with a scarlet A," said Ross, "but don't convict her of murder because
she had a moment of infidelity."
The jury was out for just eight hours. As the clerk
read out the verdict--guilty on all three counts--Ross sighed and
slumped in his chair. Joyce remained dry-eyed. She was fingerprinted
and led from the courtroom.
Outside, Ross faced reporters. "As a criminal
defense lawyer, you always know if your client did it. I've always
known. All these years, through all these cases, I've always known.
I'm in the best position to know. But even I, this time, still don't
know if she did it."
Key Case Figures Are Interviewed
Joyce was four years into her life sentence in 1993
when Bright, after reading a book about the murder, decided to revisit
the case. In the Broward Correctional Institution, Bright taped an
interview in which Joyce, through tears, insisted on her innocence.
In another prison, Bright interviewed Lamberti, who
repeated what he had told the court in 1990 when he and Caracciolo
pleaded no contest to second-degree murder charges and were each
sentenced to 40 years. "I assure you that I am the wrong man in this
courtroom," Lamberti said. "I am just taking this plea because it is
in my best interests. I don't care what they think, I am innocent."
And then Bright interviewed Spear, the dapper,
20-year detective who, after Joyce's conviction, was praised in a
Miami Herald editorial for "piec[ing] the case together, detail by
painstaking detail, tracking down each hit man in turn, and the woman
who hired them."
After an on-camera chat in his office, Spear walked
the reporter outside the Miami police headquarters, where Bright said
the detective let slip his belief that Joyce had really pulled the
trigger and that Zuccarello and his two pals were not there.
Asked how Zuccarello could have testified to
something about which he had no knowledge, Bright said, the police
officer reportedly replied: "It's simple. You walk into a jail cell .
. . , the file's on the table, you go to the bathroom for 30 minutes,
they familiarize. They know the routine."
Bright's cameraman, Mario Hernandez, swore that he
also heard the detective suggest the three alleged hitmen were not
involved in the slaying. But he could not corroborate the remark about
leaving the case file on the table.
In the same conversation, Bright said, Spear went
on to caution her about reporting his admission. "He said, 'But if you
ever tell anybody that, I'll deny it.' "
Spear called later in the day, Bright said, and
pleaded with her: "We've been friends for a long time. Don't put that
on the air."
Bright said she was stunned by what she had heard,
and she and Hernandez debated for months about what to do. She said
that she considered Spear, a longtime police source, a friend whom she
was reluctant to put in a jam. Eventually, Bright said, she and
Hernandez decided that "as journalists, it was not our obligation to
come forward with information like that, and to just leave it be."
Bright, 44, said her decision to keep quiet was
torture. "I went back and forth . . . and every time I would start to
think I was going to come forward, I chickened out."
Finally, Bright testified, she was swayed by a series of events
that began earlier this year with a pleading letter from Joyce, saying
"something to the effect that, 'I'm locked up in this prison. I didn't
kill my husband. These three people weren't there. There has to be
something that jogs your memory about the investigation that you did.
If there's anything at all, please help me.'
"And, of course, that just made the agony that I was already going
Bright, who has not responded to several interview
requests, said in her July statement that she was conflicted by what
she viewed as her ethical imperative as a journalist and her duty to
disclose information that could mean an innocent person was wrongly
convicted. "As a journalist I shouldn't do it, but as a human being, I
mean, if I get killed in a car wreck tomorrow, and maybe this is true
. . . then I felt that somebody should know about it."
Bright said she talked to WPLG-TV Station Manager
John Garwood and then to one of the prosecutors in the case, David
Waksman, who was also a personal friend. Garwood, she said, cautioned
her to think about the consequences disclosure could have on her job
as a police reporter and in making her potentially liable for criminal
prosecution on withholding evidence charges. But Waksman urged her to
tell he truth, she said.
The ability to grant off-the-record status to
sources is occasionally necessary to gather information, most
journalists agree. And the reporter's promise of confidentiality is a
bond recognized in Florida, as in many states, as a privilege
protected by law.
Retired Detective Denies Scheme
Ross, Joyce's attorney, has asked the Miami-Dade
state attorney to appoint a special counsel to investigate allegations
that the police suborned perjury and/or obstructed justice in mounting
their case against his client. But, he said, "I would be shocked if
steps were taken to prosecute someone for wrongdoing."
Assistant state Atty. Paul Mendelson said that
Spear, now retired, "denies what Gail Bright says he said." He added,
"It could have been a misunderstanding."
Spear has not responded to a request for an
interview. But after he talked to Spear, Lt. John Campbell, supervisor
of the Miami homicide division, said the retired detective admitted to
"intermittent doubts" about Zuccarello's truthfulness. "Everybody
agrees [Zuccarello] could have been lying," Campbell said, adding that
Spear "flatly denies" leaving the case file on the table for
Zuccarello to review.
Stanley's 39-year-old daughter dismissed Bright's
statement as false. "I don't know what her motivations are," Helfman
In the state's response to the defendant's motion
to vacate her conviction, Mendelson said he would argue that even
without Zuccarello's testimony, the jury was presented with enough
physical evidence to find Joyce guilty.
Zuccarello was never charged in connection with
Stanley's murder. In exchange for his testimony, he was sentenced to
seven years for robbery, served 25 months and was out on parole before
he testified in 1989.
Lamberti and Caracciolo remain behind bars.
And Joyce, now 48, is still in Florida's toughest
women's prison. Ross declined to make his client available for an
interview. But he described Joyce as "anxious, very hopeful" over the
prospects of having her conviction set aside.
A hearing on the motion is expected to be held in
circuit court before the end of the year.
Times researcher Anna M. Virtue contributed to this
A Deadly Sin
The eyes that stare out from the Florida prison mug
shot are unmistakably those of Joyce Lemay Cohen.
Once as pretty as a fashion model, she has retained
some of her attractive features—umber-colored eyes, lush lips and
But her hair is shorn, and she has gone
gray—something she would never have tolerated in the lavish life she
But after 15 years in prison, any remaining glimmer
of glamour went dull long ago for Cohen.
She is 55 years old now. Her life is reduced to the
simple regimen of incarceration at Broward Correctional Institution,
the women's prison in Fort Lauderdale.
She is inmate No. 161701, one of 611 women
Greed got her there.
At age 24 she married a rich older man, Stanley
Cohen, who introduced Joyce—his fourth wife—to a jet-set way of life.
They lived in an historic mansion overlooking
Biscayne Bay in Miami's ritzy Coconut Grove section. They drove
Jaguars and flew in their own jet. They vacationed in one adult
sandbox after another—the Bahamas, Ocho Rios, Jamaica, Las Vegas and
Stan Cohen bought a spread near Steamboat Springs,
Colo., for winter pleasure.
Mrs. Cohen became accustomed to the fine things in
life—designer clothing, satin sheets, servants.
She enjoyed her husband's wealth. She enjoyed his
"Miami Vice" lifestyle. She enjoyed his social status.
But over time the marriage began to lose its sheen.
She was doing too much cocaine. He was fooling around on her.
The couple began spending more time apart—she in
Colorado partying, he in Miami running his construction and real
estate development business.
One day, after 11 years of marriage, Joyce Cohen
stared out at the Rocky Mountain peaks and got a lump in throat. She
had reached the conclusion that she wanted the man's possessions—all
of them, not half. But she did not want the man.
A hysterical Joyce Cohen telephoned 911 in Miami at
5:25 a.m. on March 7, 1986, to report that her husband had been shot
in their Coconut Grove home.
Police found Stanley Cohen, 52, naked and dead in
bed, with gunshot wounds to the head.
When Joyce calmed down, she managed to report that
Stan had been upstairs asleep while she was up late, busy with a
charity project in a downstairs room. The couple's pet Doberman
pinscher napped at her feet.
She said she was suddenly startled by a loud
noise—a gunshot. She crept toward the sound and glimpsed two men
running out of the house.
The mansion was filled with fine furnishings, and
the intruders might have found stashes of cocaine and cash had they
bothered to look.
But nothing was missing. The crime was not a
If Joyce's story was true and accurate, someone had
entered the house for the express purpose of putting a bullet in the
head of Stanley Cohen.
Someone clearly wanted him dead.
Stanley Cohen was the eldest of four children of a
New York City furrier. He grew up on Long Island, but his family moved
to Florida in 1948, when Stanley was 14. He graduated from Miami High
School in 1951, then earned a degree in civil engineering from the
University of Florida.
He married young, and the couple soon had two
children, Gary and Gerri.
Cohen took a junior management job with a
construction firm. He was a fast learner, and he struck out on his own
in 1963, when the ambitious man was not yet 30 years old.
He called it SAC Construction Co., after Stanley
The population of Florida doubled from 5 million to
10 million between 1960 and 1980. The Miami area gradually was
transformed into a bustling and hip ethnic polyglot from its former
reputation as a Jewish retiree's last stop en route to the hereafter.
Cohen's firm, based in Miami, was positioned to
capitalize on the construction needs of that population boom.
SAC specialized in commercial construction—strip
malls, medical facilities, government buildings, warehouses.
Cohen juggled many building projects at a time, but
he managed to keep a discriminating eye on all of them. He visited his
numerous job sites regularly—relentlessly, as his employees and
subcontractors might have put it.
He also began to branch out from construction into
its companion enterprise, real estate development. Over the years he
built a business with scores of employees and dozens of projects
across the State of Florida.
Not coincidentally, along the way he got rich.
A New Love
Cohen raced through three wives in less than a
decade while growing his business.
He wasn't a handsome man in the traditional sense.
He was husky, balding and well short of 6 feet. He
had a broad smile that did not quite compensate for oversized facial
But Stanley Cohen could be a commanding presence in
any crowd. Like most self-made men, he was confident and engaging.
Cohen enjoyed the company of women, and he was
never without a steady companion or two, whether he was between
marriages or not.
His heavy wallet had plenty of sex appeal, even if
He was engaged to a woman who would have been his
fourth wife when Joyce Lemay came into his life.
Cohen didn't have to look far to find her. A
separated single mother who was new to Miami, she was working as a
secretary at SAC Construction.
Cohen came to work one day and there she was.
He introduced her to his circle of close friends at
a French restaurant in Miami one night in the fall of 1974. She was 16
years younger than Cohen, who had just turned 40.
Meeting Joyce forced Stan Cohen had to reorder his
romantic life. He informed his fiancée that the engagement was off.
A few weeks later, on Dec. 5, 1974, he married
Joyce Lemay in an extravagant affair at the Dunes Hotel in Las Vegas.
This sort of opulence was new to Joyce.
She had been born poor in Carpentersville, Ill., a
city of 30,000 at the northwest edge of Chicago's vast suburban halo,
an hour's drive from the Loop.
Her father, Bonnie Lemay, was an American Indian,
and her mother, Eileen Wojtanek, was of Polish extraction.
It was not a Currier-and-Ives childhood, according
to a profile by Carol Soret Cope in her book about the Cohen murder,
"In the Fast Lane."
Lemay beat his wife, and the couple had persistent
financial problems, perhaps because both husband and wife had drinking
problems and could not keep steady jobs.
Before Joyce reached school age, the family moved
south so that Bonnie Lemay could find work as a sharecropper. But life
got no sweeter for the family.
Tired of abuse, Eileen split, taking Joyce with
her. For several years the woman bounced from one bad relationship—and
She spent time in orphanages, foster care and youth
homes. Joyce would later say that she suffered sexual and physical
abuse as a child.
In 1964, an aunt in Carpentersville was contacted
by Illinois state authorities after Joyce, at age 13, had been booted
from a foster family for stealing.
The aunt, Bea Wojtanek, took her in and raised her
until age 17, when she married a local teenager, George McDillon.
They had a son, Shawn, nine months later.
George worked as a drywall installer, Joyce as a
secretary. They bought a small house but struggled to make the
mortgage payments—in part because Joyce had expensive taste.
(According to author Cope, she once spent $165—the equivalent of
roughly $1,000 in 2006—on peacock feathers to decorate the living
After five years of an up-and-down marriage, Joyce
compelled her young husband to move the family to Florida to find a
better life. He arranged to go to work as a drywaller in Coral
Springs, north of Miami-Fort Lauderdale.
The McDillons moved there in 1973, but George
returned to Carpentersville alone less than a year later.
His wife wanted more out of life than he was able
It's no surprise that Joyce caught the boss's
famously wandering eye at SAC Construction.
She was young, pretty and petite, at just 5 feet
tall. Her raven hair and ochre eyes gave Joyce an exotic appeal. And
she was ambitious and well-spoken, despite modest education.
Her marriage to Cohen—just 10 days after her
divorce from McDillon was official—gave Joyce the good life she
Author Cope wrote that Joyce and her son made a
triumphant return to Carpentersville not long after the Vegas
nuptials. She showed up in a shiny new luxury car and reported that
she had lassoed a Jewish millionaire.
Cohen gave Joyce a fabulous life.
Their social connections were centered around the
Miami Ski Club and Stan's tight circle of college fraternity brothers.
Joyce became a featured model in one of the year's most important
social events, the ski club's annual fashion gala. Stanley paid
Joyce's way through interior design school and referred clients from
his building firm.
But Joyce was too busy shopping to work much.
She furnished their new Coconut Grove mansion like
a showplace, and she kept abreast of the latest designer clothing
styles. When she wasn't shopping, she was planning their bimonthly
vacation trips to the continent's finest sandy or snowy resorts.
Author Cope said Stanley Cohen once joked to his
stepson, "Your mother's going to shop me to death."
For skiing, the couple favored laid back Steamboat
Springs, Colo., where blue jeans were more plentiful than furs.
Stan bought a 650-acre spread there that he called
Wolf Run Ranch, then constructed an elaborate cedar-sided cabin on the
property. To get back and forth to the mountains he bought his own
plane—first a prop-driven Cessna, then a much faster small jet.
The couple invested Stan's money in whatever struck
their fancy—land, shopping centers, restaurants and resorts.
Their Steamboat Springs home was completed about
the time that their marriage reached the seven-year itch phase. Joyce
began spending longer stretches alone in Colorado, where she developed
her own circle of friends, including—briefly—country singer Tanya
In the movies, life is a three-act play.
The happy-ending narrative couldn't be simpler:
You're up, you're down, and then you're up again. Think "Rocky" or
"It's a Wonderful Life."
But Joyce Cohen was born down. Stan Cohen's wealth
brought her up. Inevitably, the third act of her life would find her
There could be no happy ending.
Their story was as old as infidelity itself.
First the couple's sex life went south. Then Joyce
learned that Stanley had rekindled an affair with an old flame. They
argued frequently, and each threatened to leave the other.
But Stan warned Joyce that she would leave the
marriage the same way she entered it—with nothing.
Joyce could not fathom the idea of returning to her
former life. After a decade of living in high style, she was mortified
at the thought of having to worry about such financial minutiae as car
payments, appliance purchases and clothing boutique tabs.
Joyce mused to a friend that she wished Stanley
were dead. She made an oblique reference to finding a hit man to solve
her problem. They both laughed, and the friend assumed she was
Maybe, maybe not.
Meanwhile, South Florida in the early '80s was in
its "Miami Vice" phase. Reckless cocaine cowboys were turning the city
into one of the country's murder capitals.
Nearly every adult with a spare Ben Franklin in his
billfold was dabbling in the drug, and that certainly included the
Cohens and their clique.
Stanley was said to be a regular tooter—three or
four times a week. There even were whispers that he and his jet were
involved in cocaine smuggling.
Joyce, for her part, went around with a permanent
She tooted up with her friends in the Rocky
Mountains, including Tanya Tucker, as the singer later would
acknowledge to police. When she was in Miami, Joyce often tucked
Stanley into bed early, then went out on late-night excursions to her
club of choice, the Champagne Room, a disco where cocaine was as easy
to find as a swizzle stick.
Her son Shawn, whom Cohen had adopted, developed a
drug problem of his own and was packed away to a military-style
boarding school in Colorado that specialized in instilling a sense of
self-control in youngsters.
Joyce could have used a semester or two there.
Clearly, she was careering out of control.
The probe into Stanley Cohen's murder got off to a
Less than an hour after the investigation had begun
at the Cohen home, Joyce ordered police to vacate the premises. Cops
and prosecutors were forced to get a search warrant, which delayed the
gumshoes until late that afternoon.
The next morning's Miami Herald carried a story of
the Cohen homicide under the headline "Prominent Builder Murdered in
Home; Wife Keeps Police Outside for More Than Eight Hours."
Prosecutor David Waksman told reporters, "This is
the first time I've been asked to prepare a search warrant because the
widow would not allow the police to come into her house to conduct a
crime scene search."
Joyce's peculiar behavior made her the prime
suspect, of course. But the case was not destined for quick and easy
Stanley Cohen had been killed with four .38-caliber
gunshots to his head. One grazed his scalp, two entered from the left
side and one from the right.
Police found the murder weapon that afternoon in a
stand of ferns in the Cohens' yard. It was Stanley's own Smith &
Joyce Cohen explained that Stanley had handled the
gun at about midnight on the night he was killed when she heard a
noise and asked him to investigate. She said he searched the house and
yard but found nothing.
Joyce surmised that he left the gun on his
nightstand, and the two "shadowy figures" she saw in the house used it
to kill him.
But inside the house they found a facial tissue
that contained both gunpowder residue and Joyce's nose mucous.
There were other problems in her account.
An ear witness said he heard four gunshots at 3
a.m., even though Joyce did not report the shooting until nearly 2
hours later. The medical examiner estimated the time of death at 3
Waiting for a Call
Joyce Cohen hired Alan Ross, a marquee name among
Florida defense attorneys. He immediately arranged for his client to
take a lie detector test. The first was inconclusive. But a second
indicated that she was not lying when she said she was not involved in
her husband's murder.
Police shrugged off the results.
"We're not baffled," one deadpan police official
Neither were Stanley Cohen's children from his
first marriage, Gary Cohen, a lawyer, and Gerri Helfman, a TV reporter
who would go on to become a widely recognized news anchor in South
Five days after the murder, they filed a $5 million
wrongful death lawsuit against Joyce. The stepchildren also began
legal maneuvers to block her from getting any part of Stanley's
estate, which would prove to be worth just $2 million due to a heavy
personal and business debt load.
Joyce responded with an $11 million slander suit
But the investigation seemed to grind to a halt.
Days, weeks and months passed without criminal charges being filed
against Joyce or anyone else.
Every so often, impatient reporters would demand to
know why police were unable to pin the crime on the prime suspect.
Jon Spear, the lead detective, firmly believed that
Joyce was responsible. But neither he nor prosecutors wanted to risk
losing the case to a jury by rushing forward with charges that were
They waited for the usual break: a silver-bullet
It finally came from Frank Zuccarello, a member of
a busy home-invasion gang that worked mansions in the Sunshine State.
Zuccarello had been arrested for robbery just four
days after the Cohen murder. He was facing a long prison stretch, and
that was motivation enough for him to step forward.
He told police that Cohen had hired him and two
others from his robbery gang, Thomas Joslin and Anthony Caracciolo, to
kill her husband.
She provided the gun and a sketch of the house to
guide the killers to Stanley's bed. On the night of the murder, she
turned off the alarm system, locked up the pet Doberman and left a
sliding door open to allow them access, Zuccarello said.
He added the killers were paid with $100,000 worth
For a month, authorities worked on Joslin and
Caracciolo, trying to get them to implicate Cohen. They refused to
talk and were eventually charged with murder in September 1988.
Joyce Cohen was finally arrested and charged with
her husband's murder two months later, on Nov. 2, 1988, two and a half
years after the murder.
By then her lifestyle had undergone a
She was living at a trailer park in Chesapeake,
Va., with her new boyfriend, Robert Dietrich, whom she met in
Steamboat months after the murder.
Her trial in the fall of 1989 began with testimony
from the first cop on the murder scene, Officer Catherine Carter. She
testified that a dazed and spacey Joyce Cohen sat on the floor of her
living room and said, "I shouldn't have done it."
Another early witness described a foreboding
conversation he had with Joyce more than a year before Stanley was
Frank Wheatley, a former supervisor with Cohen's
construction company, said he snorted cocaine with Joyce and had frank
discussions with her about the state of their marriage.
"She mentioned to me that Stan was becoming rather
boring to her," Wheatley said. "She told me that she would like to get
divorced but that she was afraid no judge would give her
anything...(she said) she wished she knew somebody she could have kill
him — or have the nerve to do it herself."
Joyce Cohen was complaining to just about everyone
she knew about her marriage.
She became friends with Tanya Tucker, the country
singer, after they met at a bar in Steamboat.
Tucker stayed the night at the Cohen residence. The
women used cocaine, and Joyce once again opened up about Stanley.
Detective Spear interviewed Tucker, and a 46-page
transcript of the conversation became part of the case record.
"She seemed kind of a pain-wracked person," Tucker
told Spear. "Bottom line, she was extremely unhappy....She liked the
money. That's the only thing she liked."
Another Steamboat friend, Kathy Moser, said Joyce
Cohen was "extremely unhappy and agitated" that Stanley was fooling
around with an old girlfriend, Carol Hughes, and the paramour mounted
the stand to acknowledge that she and Cohen were intimate.
Defense Attorney Ross gamely tried to discredit one
prosecution witness after another, but he was swimming upstream
against a torrent of damning testimony, including the apparent delay
in reporting the shooting and the gunpowder residue on found on a
Prosecutors said the killers apparently carelessly
dropped the murder weapon while fleeing. They said Cohen picked it
with a tissue and threw it in the ferns in yard before police arrived.
She blew her nose in the same tissue.
Guilty As Charged
Frank Zuccarello, the star witness, probably sealed
"She wanted her husband dead," he said. "The murder
was supposed to look like a botched burglary."
He was lucid and believable as he described the
planning meeting with Joyce Cohen at a North Miami Beach 7-Eleven
parking lot and gave an exacting account of how the job went down,
with the woman waiting on the ground floor while Caracciolo went
upstairs and killed her husband.
Defense Attorney Ross accused the "conniving"
Zuccarello, of make up the story in exchange for a lenient five-year
prison sentence, which he had completed even before his testimony.
But the jurors obviously believed him. After
hearing three weeks of testimony, they took less than a day to convict
Joyce Lemay McDillon Cohen of first-degree murder.
The jury recommended against execution, and Judge
Fredricka Smith imposed a life sentence, plus 15 years for conspiracy.
Smith told Cohen, "You committed the crime for
financial gain, and you did it in a cold, calculating manner."
Joyce Cohen has been unsuccessful in a series of
appeals, and she ultimately lost any claim to Stanley's estate.
Her son, Shawn, did receive a $106,000 inheritance.
But he quickly blew it on drugs. A few years ago, the Miami Herald
found him living in a cardboard box in a city park.
"I'm stuck in a rut," he said.
In 1991, five full years after they were implicated
in the case, Anthony Caracciolo and Thomas Joslin finally agreed to a
They pleaded no contest to second-degree murder and
were promised sentences that would allow them the possibility of
Caracciolo, the alleged triggerman, got 40 years
and Joslin 30. Joslin is scheduled to be released on parole on Dec. 26
this year, 2006, and Caracciolo on Jan. 14, 2010.
Meanwhile, a Miami TV reporter came forward in 1998
to say that Jon Spear, the lead Cohen investigator, told her
confidentially in 1993 that he believed Joyce Cohen had acted alone in
shooting her husband. He said he believed Zuccarello made up the
contract-killing story to get out of prison.
The reporter, Gail Bright, said she revealed the
information after five years because she was overwhelmed by guilt that
two wrongfully convicted men were rotting in prison.
Supporters of Caracciolo collected statements from
two other law enforcers and a polygraph operator who also questioned
But Zuccarello, who now lives in the Tampa area,
has stood by his account.
A federal judge granted a hearing in the case last
summer. Joyce Cohen reportedly is eager to have Zuccarello discounted
because—more than anything else—his testimony led to her indictment
So far, the key figures in the South Florida crime
epic remain behind bars.
In the Fast Lane: A True Story of Murder in
Miami, by Carol Soret Cope, Simon & Schuster, 1993
"Prominent Builder Murder in Home; Wife Keeps
Police Outside for More Than Eight Hours," by Marc Fisher and Arnold
Markowitz, Miami Herald, March 8, 1986
"Prisoner Charged in Cohen Case, by Lynne Duke and
Joan Fleischman, Miami Herald, Sept. 17, 1987
"Witnesses Tie Widow to Hit Job; Joyce Cohen's
Attorney Brands Accusations 'Nonsense,'" by Christine Evans, Miami
Herald, May 3, 1988
"Two Years After Husband's Killing, Joyce Cohen
Still a Suspect," by Christine Evans, Miami Herald, May 5, 1988
"Widow Charged in Cohen Killing; Arrest Comes 2
Years After Builder's Murder," by Christine Evans, Miami Herald, Oct.
"Joyce Cohen's Life on Main St.; Boyfriend: Murder
Allegation Left Her 'Living in Shadow,'" by Christine Evans, Miami
Herald, Oct. 29, 1988
"My Marriage Is a Mess, Cohen Told Singer," by
Christine Evans, Miami Herald, May 25, 1989
"Cohen a Plotter or Scapegoat? Jury to Decide," by
Joan Fleischman, Miami Herald, Oct. 20, 1989
"Cohen Let Killers in the House, Robber Says," by
Joan Fleischman, Miami Herald, Oct. 27, 1989
"Cohen Guilty in Killing of Husband; 'This Was Not
a Neat, Tidy Case,'" by Patrick May, Miami Herald, Nov. 17, 1989
"Cohen Gets Life As Emotions Flare In, Out of
Court," by Richard Wallace, Miami Herald, Nov. 22, 1989
"Slain Millionaire's Stepson Homeless in Bayfront
Park," Miami Herald, Nov. 20, 1997
"TV Reporter: Prosecution Witness in Murder Case
Lied," by Rachel La Corte, Associated Press, Dec. 9, 1998
"The Imperfect Murder," by Arthur Jay Harris, Miami
New Times, Dec. 17, 1998
"Hit-man Conviction in Doubt;
Story of Home Invader Unraveling in 1986 Slaying of Stanley Cohen," b
"A Rare Hearing Is OK'd in Murder," by Wanda J.
DeMarzo, Miami Herald, May 20, 2005
887 F.2d 1451
The STATE OF FLORIDA, Plaintiff,
Joyce COHEN, Defendant-Appellant,
United States of America ex rel., Dexter W. Lehtinen, United
States Attorney and Jeanne M. Mullenhoff,
Assistant United States Attorney,
United States Court of Appeals,
Oct. 12, 1989.
As Amended Dec. 12, 1989
Alan S. Ross, Weiner, Robbins,
Tunkey & Ross, Miami, Fla., for defendant-appellant.
Dexter W. Lehtinen, U.S. Atty.,
Linda Collins Hertz, Sonia Escobio O'Donnell and Jeanne M. Mullenhoff,
Asst. U.S. Attys., Miami, Fla., for U.S.
Appeal from the United States
District Court for the Southern District of Florida.
Before HATCHETT, ANDERSON and
EDMONDSON, Circuit Judges.
This appeal, arising out of an ongoing state capital murder trial,
presents the unusual circumstance in which discovery issues concerning
a state court criminal trial are taking place in the federal courts.
The discovery issue currently on appeal presents the challenge of
finding the appropriate balance between a criminal defendant's right
to have access to information relevant to her defense and the federal
government's interest in preserving the confidentiality of an
informant in an ongoing criminal investigation. Because new facts have
emerged since the district court issued its order, we find that a
remand is necessary.
A. Judicial Proceedings
Appellant Joyce Cohen has been indicted for the
first degree murder of her husband, Stanley Alan Cohen. Her murder
trial began on October 10, 1989, in the Circuit Court for the Eleventh
Judicial Circuit, in and for Dade County, Florida.
In anticipation of her trial, Cohen filed a motion on March 13, 1989,
for subpoenas seeking testimony and records from various federal
agents and agencies with regards to Frank Diaz, a fugitive from
justice who was, at one time, considered to be a suspect in her
husband's murder. On March 31, 1989, the federal government filed
motions in state court both to quash the subpoenas and to request a
protective order. In response to the federal government's motions, the
state court issued an order directing the federal government to
produce on or before June 12, 1989, all records covered by the
subpoenas for an in-camera review.
When the federal government failed to respond to the state court
production order, the state court, on June 16, 1989, issued an order
requiring the federal government to show cause why it should not be
held in contempt for failing to abide by its earlier order. Confronted
with the state court's show cause order, the federal government sought
refuge in the federal district court, which accepted jurisdiction
pursuant to 28 U.S.C.A. Sec. 1442(a)(1).
B. Frank Diaz's Relationship to the Decedent
In the federal district court, the appellant and the federal
government disagreed as to the scope of discovery that should be made
available to the appellant with regards to the government's ongoing
investigation into the whereabouts of Frank Diaz. Diaz, who is the
subject of two federal grand jury indictments in the Southern District
of Florida concerning the laundering of approximately $600,000, has
been a fugitive from justice since 1985 when he failed to appear in
federal court to enter a guilty plea. Since that time, Deputy Marshal
Shawn Conboy has spearheaded the effort to locate Diaz.
As part of his investigation, Conboy engaged a confidential
informant who provided Conboy certain information regarding Diaz's
whereabouts. It is the information provided by this confidential
informant that is at the heart of the present controversy.
Since Diaz has been a fugitive, he had business dealings with the
deceased, Stanley Cohen. Exactly what the nature of those dealings was
is unclear, but the appellant intimates that the relationship
concerned her husband's activities as a middleman in a large scale
cocaine ring and Diaz's experience as an alleged money launderer.
According to one of appellant's witnesses, at some point in time after
Diaz became a fugitive and before Cohen was killed, Cohen held a large
sum of money for Diaz. In addition, Cohen and Diaz were known to have
vacationed at the island of Martinique after Diaz became a fugitive,
and Cohen bragged to an acquaintance that he had a connection who
could get in touch with Diaz "any time Cohen needed him."
Approximately one week before Cohen was murdered, Diaz visited Cohen
at his home in the Coconut Grove section of Miami, Florida. During
this visit, Diaz was accompanied by an unidentified young woman. This
visit was witnessed by both the appellant and her son.
Although Diaz's subsequent conversation with Cohen that day was out of
earshot from the witnesses, one of the topics discussed apparently
concerned an airplane owned by Cohen. According to testimony from a
Drug Enforcement Agent, Cohen's airplane had been on a watch list
since August 1985 as having been suspected as being used to smuggle
currency out of the United States into Panama.
One week after the visit, on March 7, 1986, Cohen was murdered in the
bedroom of his home in Coconut Grove. On this day, according to
Conboy's confidential informant, Diaz was back in Miami. Although
several individuals including Diaz were initially suspected of having
committed Cohen's murder, Cohen's wife, appellant Joyce Cohen, was
subsequently indicted for having arranged to have her husband
The posture of this case is highly unusual. On appeal to this court is
the discovery dispute concerning whether the federal government should
provide information concerning its confidential informant to Ms. Cohen
so that she may use that information in her ongoing state court
criminal trial. The federal government is not involved in Ms. Cohen's
prosecution in the state criminal proceedings, nor are the state
authorities who are prosecuting her in state court parties to this
appeal. Moreover, this court is typically not involved in criminal
case discovery disputes, particularly when the issue has been resolved
in favor of the federal government. Rather, this court traditionally
only reviews those decisions after a conviction has been obtained and
the case is on either direct or habeas appeal.
Because this case is out of the norm, some discussion of the
jurisdiction of the federal court is in order. The federal government
effectuated its removal pursuant to 28 U.S.C.A. Sec. 1442(a)(1) which
A civil or criminal prosecution commenced in a State court against any
of the following persons may be removed by them to the district court
of the United States for the district and division wherein it is
(1) Any officer of the United States or any agency thereof, or person
acting under him, for any act under color of such office or on account
of any right, title or authority claimed under any Act of Congress for
the apprehension or punishment of criminals or the collection of the
This statute is an incident of federal supremacy and is designed to
provide federal officials with a federal forum in which to raise
defenses arising from their official duties. Willingham v. Morgan, 395
U.S. 402, 405, 89 S.Ct. 1813, 1815, 23 L.Ed.2d 396 (1969); Loftin v.
Rush, 767 F.2d 800, 804 (11th Cir.1985). In enacting the statute,
Congress recognized "that federal officers are entitled to, and the
interest of national supremacy requires, the protection of a federal
forum in those actions commenced in state court that could arrest,
restrict, impair, or interfere with the exercise of federal authority
by federal officials." Murray v. Murray, 621 F.2d 103, 106 (5th
Section 1442(a)(1) permits the removal of not only those actions
commenced in state court that potentially expose a federal official to
civil liability or criminal penalty for an act performed in the past
under color of office, but also the removal of civil matters that seek
to either prohibit or require certain actions by a federal official in
the future. Murray v. Murray, 621 F.2d at 107 (citing New Jersey v.
Moriarity, 268 F.Supp. 546, 555 (D.N.J.1967)).
Only two prerequisites must be met before an action may be removed
under Sec. 1442(a)(1): first, the case must be against any officer,
agency, or agent of the United States for any act under color of such
office; and second, the federal actor or agency being challenged must
raise a colorable defense arising out of its duty to enforce federal
law. See Mesa v. California, --- U.S. ----, ----, 109 S.Ct. 959, 964,
966-67, 103 L.Ed.2d 99 (1989); Willingham v. Morgan, 395 U.S. at
406-07, 89 S.Ct. at 1816; Loftin v. Rush, 767 F.2d at 804-05. When
these two conditions are satisfied, the case may be removed to a
federal court. In other words, regardless of whether the federal court
would have had jurisdiction over the matter had it originated in
federal court, once the statutory prerequisites to Sec. 1442(a)(1) are
satisfied, Sec. 1442(a)(1) provides an independent jurisdictional
basis. IMFC Professional Services of Florida, Inc. v. Latin American
Home Health, Inc., 676 F.2d 152, 160 (5th Cir. Unit B 1982).
In the instant case, a state court subpoena had been served on
Deputy Marshal Conboy and other federal agents. Under existing federal
regulations, the agents were not permitted to provide the material as
requested without first having obtained prior approval. See 28 C.F.R.
Secs. 16.22-16.29 (1988).
When the prior approval was not forthcoming, the state court's request
for the production of documents in camera went unanswered. Once the
state court initiated contempt proceedings against the federal
officials, removal of the contempt proceedings was appropriate.
See Swett v. Schenk, 792 F.2d 1447, 1450 (9th Cir.1986); State of
Wisconsin v. Schaffer, 565 F.2d 961, 963-64 (7th Cir.1977).
Having determined that federal court jurisdiction was proper, we turn
to the merits. Neither party challenges the district court's
determination that the refusal of the federal officials to provide the
requested information should properly be assessed as an invocation of
privilege to be evaluated by the federal courts. See NLRB v. Capital
Fish Co., 294 F.2d 868, 873 (5th Cir.1961). Rather, the focus of the
appeal concerns whether the district court struck the correct balance
when it concluded that, under the circumstances of this case, the
government's need to protect investigative records pertaining to an
ongoing criminal investigation outweighed Ms. Cohen's need for the
information requested. Cf. Roviaro v. United States, 353 U.S. 53, 62,
77 S.Ct. 623, 628-29, 1 L.Ed.2d 639 (1957) (courts must consider "the
particular circumstances of each case, taking into consideration the
crime charged, the possible defense, the possible significance of the
informer's testimony, and other relevant factors" in balancing the
public interest in protecting the flow of information with the
individual's right to prepare a defense).
The district court, on the basis of the information before it,
determined that Ms. Cohen's request to have Conboy testify would
result in the revelation of Conboy's confidential informant's
identity. After assessing Ms. Cohen's asserted need for the evidence
Conboy could offer, the district court concluded that the government's
interest in protecting Conboy's confidential informant from Diaz
outweighed any disadvantages Ms. Cohen would suffer in preparing her
defense absent Conboy's testimony.
Since the district court entered its ruling, however, new facts have
emerged which could change the balancing calculus conducted by that
court. In an attempt to stave off Ms. Cohen's appeal of the district
court's order to this court, the federal government offered to provide
certain testimony which may or may not prove helpful to Ms. Cohen.
More importantly, that testimony suggests, and the government now
concedes in its brief, Government's Brief at 8, that the identity of
the informant is already known to Frank Diaz. From our review of the
record, it appears that the district court was not aware of the fact
that Diaz already knows the identity of the informant at the time it
made its determination in favor of the federal government.
This concession may weaken the strength of the government's interest
in maintaining its privilege to withhold information. See Roviaro v.
United States, 353 U.S. at 60, 77 S.Ct. at 623. But see United States
v. Tenorio-Angel, 756 F.2d 1505, 1510-11 (11th Cir.1985) (recognizing
that the federal government may still have other valid reasons for
nondisclosure even when the identity of an informant is known).
Because the government's interest in law enforcement may have been
altered by these new factual disclosures, a new assessment of the
federal government's need for nondisclosure relative to Ms. Cohen's
need for the requested testimony to assist her in mounting her defense
is in order.
Because the state court had initiated contempt proceedings against
federal officers who had a colorable federal defense, the officers
were justified in removing the contempt proceeding and the discovery
dispute giving rise to that proceeding to the federal court. With
regards to the district court's ultimate conclusion concerning the
discovery dispute between the federal government and Ms. Cohen, a
remand to the district court for further proceedings is necessary
because new evidence has been developed that may shift the district
court's assessment of the issue.
The facts as discussed in this section are limited
to those facts that appear to have been presented to the district
court. Discussion of the new evidence that has been developed will be
presented infra at 1455, where we explain why a remand is necessary
Appellant has also located two neighbors who will
testify that Cohen mentioned to them one day after Diaz's visit that
he had met with Diaz at his house
"In any federal or state case or matter in which
the United States is not a party, no employee or former employee of
the Department of Justice shall, in response to a demand, produce any
material contained in the files of the Department, or disclose any
information relating to or based upon material contained in the files
of the Department, or disclose any information or produce any material
acquired as part of the performance of that person's official duties
or because of that person's official status without prior approval of
the proper Department official in accordance with Secs. 16.24 and
16.25 of this part." 28 C.F.R. Sec. 16.22(a)
The officers' federal defense to the contempt
proceedings was premised upon United States ex rel. Touhy v. Ragen,
340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951), and Boske v.
Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (1900), both of
which held in cases involving similar federal regulations that a
subordinate federal official was justified in refusing to produce
evidence requested under a court subpoena when the regulations did not
permit their release. Given the Supreme Court's insistence in
Willingham v. Morgan, 395 U.S. at 405, 89 S.Ct. at 1815, that Sec.
1442(a)(1) be given a broad reading so as to encompass "all cases
where federal officers can raise a colorable defense arising out of
their duty to enforce federal law," the defense offered clearly
Removal of the contempt proceedings was appropriate
notwithstanding the fact that the underlying criminal proceeding
remained in the state court system. See State of Wisconsin v.
Schaffer, 565 F.2d at 964. While such a result may seem at odds with
prior precedent which holds that "when a federal officer exercises his
prerogative under 28 U.S.C. Sec. 1442(a)(1) to remove any 'civil
action' commenced against him in state court, the entire case against
all defendants, federal and non-federal, is removed to federal court
regardless of the wishes of his co-defendants," Arango v. Guzman
Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir.1980); Fowler v.
Southern Bell Telephone & Telegraph Co., 343 F.2d 150, 152 (5th
Cir.1965), that precedant must be reviewed in context. At issue in
Arango was "a single, interlocked series of transactions" that could
be more expediently handled in one judicial proceeding. Id., 621 F.2d
at 1376 n. 6. In contrast, a contempt proceeding, although ancillary
to the underlying state action, is distinct and separate from the
ongoing state action. Swett v. Schenk, 792 F.2d at 1450; State of
Wisconsin v. Schaffer, 565 F.2d at 964. As such, it could be properly
removed without removing the entire state proceeding.