By Marc Freeman
The prospect of convicted murder-for-hire schemer Dalia Dippolito heading home soon instead of starting a 16-year prison sentence is not as impossible as it sounds.
While it’s rare to get bond during an appeal, it can happen. The law gives judges discretion in non-capital crime cases to let convicted felons sleep in their own beds rather than go directly to prison.
So when the 34-year-old Boynton Beach woman returns to the courthouse Thursday, she’s hoping for a ticket back to her mother’s house — and a reunion with her 1-year-old son — for perhaps two to three years while her appeal is pending.
“It’s going to be a challenge,” said defense attorney Brian Claypool. “I remain optimistic that we have a reasonable chance.”
She perhaps didn’t help her cause by recently talking from jail about a prison escape by a convict in South Carolina, something prosecutors were quick to pounce on as a reason to keep her locked up.
After Dippolito’s first trial in 2011 when she was found guilty of trying to arrange a hit on her husband, the former judge on the case allowed her to post a $500,000 bond.
So she stayed on house arrest with a GPS ankle monitor to track her movements, eventually winning a new trial and giving birth to a baby boy in the process.
Freedom for the new mother ended after her conviction in June at trial number three. Circuit Judge Glenn Kelley said he refused to consider the existence of the child as a factor in his sentencing decision last month.
Now, prosecutors are urging the judge to deny bond because of her two trial convictions, her “overwhelming” guilt in hiring an undercover Boynton Beach police officer who posed as a hit man, and the higher chances of fleeing the country if given the chance.
They argue the proof comes from her own mouth — just last month she was recorded on a jailhouse phone line speaking with a man about a prison break in South Carolina involving a drone and a wire cutter delivery.
“This Defendant has proven to be a greater threat and flight risk,” Assistant State Attorney Craig Williams wrote Aug. 2. “In-house arrest provides little protection when this Defendant can orchestrate the ultimate crime using a telephone and manipulating others to carry out her schemes.”
On the July 9 call with the person named “James,” Dippolito remarked that “everyone here was like pumped up” when they learned about the drone-aided breakout.
Claypool told the Sun Sentinel there’s nothing on the phone call that indicates Dippolito is seeking a life on the run.
“This is not a plan on her part to try to escape,” he said. “Her whole point of living is to mother her child.”
The attorney also contends that the optimal time for Dippolito to become a fugitive, if she were so inclined, was before the trial, not now. And he says she has no interest in running anyway or money to pull it off; she is seeking a $25,000 bond.
“If she was going to flee it would have been easier to do this on house arrest than flying a drone over the prison building” to deliver escape tools, Claypool said.
Risk of flight is one of the main factors that judges must consider in bond requests, said Samuel Rabin, a former state prosecutor-turned-defense attorney from Miami.
Other factors are whether a defendant is a danger to the community and whether there’s a solid basis for the appeal and the possibility that it could be successful.
“It’s really a case by case basis and judges definitely have the discretion,” Rabin said, adding appellate bond remains unusual because most felons are not deemed worthy of it.
“A lot of people try for it and more often than not it’s denied,” he said. “But it happens.”
Long-time Miami defense attorney Bruce Lehr says the courts are not likely to grant appellate bonds, because of concerns that people will flee after they’ve been given lengthy prison sentences.
Another hurdle to overcome is convincing the trial judge that there are reasonable appellate grounds for their own decisions to be overturned, said Lehr, also a former prosecutor.
“It is a rarity,” he said.
Even Claypool, Dippolito’s lawyer, acknowledged the legal Catch-22 that he and attorneys Greg Rosenfeld and Andrew Greenlee face: “We’re going back to the same judge who we believe made mistakes.”
So along with promising that Dippolito would be on her best behavior on house arrest, her legal team has lined up several reasons to show that she stands a good chance of winning a fourth trial.
The main point for the appeal is that Judge Kelley mistakenly allowed the jury to hear about Dippolito’s alleged attempt — before meeting the undercover cop — to poison husband Michael Dippolito by spiking his tea with antifreeze.
The lawyers note that the state appeals court in 2014 granted a new trial to Dalia Dippolito because of a pool of prospective jurors heard this same allegation, which had been ruled out of her trial.
“Because it involved an attempt to kill the same victim, it was closely related to the pending charges and could have prejudiced jurors in rendering their verdict,” the appellate court then wrote.
But Kelley ruled in June that it was fair game for prosecutors to cite the antifreeze claim during cross examination of Dippolito’s former lover Mohamed Shihadeh, who had worked as a confidential informant for the cops.
After Shihadeh testified that he had told police he didn’t think Dippolito was serious about killing her husband, prosecutors said they had to discredit that by bringing up the alleged poison attempt.
Kelley ruled a pretrial order stopped prosecutors from citing the poisoning only when putting on their own case, not when challenging a defense witness.
Dippolito’s lawyers say one of their other strong grounds for the appeal is the judge’s decision, during and after the trial, to deny a claim that a juror was sleeping at key parts of the defense’s case.
The judge said he refused to tap an alternate juror — or bring in all jurors for interviews after the verdict — because during the trial he made “personal observations” the female juror “was not asleep during the presentation of evidence.”