Monday, August 13, 2012

MY FIRST MURDER CASE

In 1973, a parole violator named Julian Kennedy sat in a Central Florida jail cell awaiting his return to prison. Kennedy had managed to get himself hooked on drugs during his brief stint of freedom, and he very much wanted a fix. He sent for the chief detective of the sheriff’s office and made a proposition. “If I tell you about some murders, will you get me some drugs?” Both Kennedy and the detective agree that happened, but they diverged in their accounts of what happened next. Kennedy said the detective fixed him up with drugs. The detective testified that he told Kennedy “I can’t promise you anything.” He went on to say that Kennedy replied, “Well, it’s worth a shot,” and then began confessing to murder after murder. When Kennedy finished his story, he had confessed to 14 murders.
Upon his first release from prison, Kennedy immediately jumped parole and began to wander about Georgia and Florida. He supported himself by committing burglaries and robberies and the occasional murder. He would kidnap women driving alone, he said, rape them and kill them, and then dispose of their bodies in desolate wooded areas. Kennedy may or may not have killed 14 women, but it is certain that he killed at least one. A South Georgia lady went to the cemetery to leave flowers on a recently deceased relative’s grave, and Kennedy saw her. He snatched her, put her back in her own car, and drove to Lake City, where he raped and killed her. Disposing of her body in a wooded area, he made his way south to an eventual capture in Central Florida on a parole violation warrant.
The detective began contacting local law enforcement in the various places where Kennedy said he had committed murder, and that led him to Columbia County and Sheriff Harry Spradley. They brought Kennedy to Lake City and he led them straight to the body of his victim. It had been several months since the killing, and the searchers found her skeleton, her clothing, and little else. Try as he might, Kennedy could not seem to find the bodies of the other 13 women he claimed to have killed.
Milo Thomas, the Public Defender for Lake City, warned Kennedy to quit talking to the police, and he warned the police to quit talking to his client. Neither Kennedy nor the police heeded Milo’s advice. The local investigator, Charlie Hollis, kept taking Kennedy out of the jail and escorting him around North Florida looking for the bodies of Kennedy’s other victims. At least Hollis was looking for dead bodies. I believe Kennedy was looking for an opportunity to escape. Milo finally filed a motion and got a court order to prevent further interviews with his client, and Hollis’s expeditions with Kennedy ceased.
Milo filed two more motions—a motion for a mental examination to see if Kennedy was crazy and a motion for change of venue to escape the pervasive publicity being heaped on the case by the local newspaper. It was Milo’s motion for a mental examination that proved the catalyst for me getting assigned to my first murder case. Before I get into that, though, I should probably explain why I, whose lifelong ambition was to be a prosecutor, was working as an Assistant Public Defender.
When I graduated from law school, I faced grim prospects for finding a job in my small hometown, but I resolved that I wasn’t going to go anywhere else. If nothing else, I could simply hang out my shingle and try to make my way as a rookie general practitioner. I had no prospects of a job at the State Attorney’s Office; Randal Slaughter, the State Attorney, had a policy of hiring only experienced part time assistants. I found temporary work as a law clerk for a local law firm. They paid me minimum wage, the same amount of money I once earned digging ditches for a construction company. My wife Lane, an RN, was making the fabulous salary of $13,500.00 per year working at the local VA hospital, so we weren’t going hungry. The law partners talked to me about making me a full associate, but talking was all they were doing. When I heard that Milo Thomas was looking to hire some full time Assistant Public Defenders, I jumped at the chance.
My job interview with Milo turned out to be one of the most unusual job interviews I ever had. I phoned his office and was told that he could interview me that very evening at the home of his friend, J. Fred Jones. I got directions and arrived at Jones’s house shortly after sunset. Milo, Fred Jones, and I sat on Jones’s front porch smoking cigars, sipping whiskey, and generally shooting the bull. I was wondering when we were going to get around to the interview when Milo announced, “Dekle, I like you. You’re hired.” In a somewhat surprised voice I asked, “Don’t you want to hear about my qualifications?” Milo took a drag on his stinky cigar and said, “Okay, tell me about your qualifications.” When I got through reciting my academic record for him, he said, “Well, you haven’t said anything that would make me change my mind. You’re still hired.” I started to work the next morning earning the princely sum of $9,500 per year.
When I arrived at Milo’s office, we filled out the paperwork and he showed me around the three rooms that comprised the Public Defender’s Office for the Third Judicial Circuit of Florida. There was the reception area, Milo’s office, and the law library. Milo said I could camp out in the law library with the two other Assistant Public Defenders, and that’s where I was sitting a few days later when Milo came into the library and asked me if I wanted to work on a murder case. I said sure, and Milo sat down to brief me.
“I filed this motion to have Julian Kennedy examined and we’re waiting on the psychiatric examination. Kennedy told one of the trustees down at the jail that he had a plan to make the insanity defense work. He’s going to beat the Hell out of me the next time I go to interview him. Of course the trustee was a snitch, so he told the Chief Jailer and the Chief Jailer told me.” He didn’t need to say any more. I knew why he had chosen me as his helper rather than one of the other two APD’s. They were both well under six feet tall and well under 160 pounds. I was six feet, two inches tall and weighed in at around 275 pounds, not all of which was fat.
The next day we went to interview Kennedy. Milo’s investigator, Grover Lamar “Possum” Lee, tagged along, too. “Poss” Lee wasn’t quite as big as me, but he was much more formidable. A former professional football player and the veteran of many bar fights, Poss had bulging muscles and the attitude of a man who knew he could handle himself in any kind of physical altercation. When Poss shaved his head, it revealed a network of scars lacing his scalp, souvenirs of those many bar fights. As a matter of fact, Poss had not retired from fighting in bars. He once came to court with an ugly abrasion across his cheek. I asked him  “Poss, what in the world happened to you?” Poss laughed and said “Leroy Tompkins slapped me with a gator, so I knocked his breath out with the muzzle of my shotgun.” I wanted to know how in the world you could slap somebody with an alligator. “It was just a little bitty gator,” Poss said, “We caught it coming back from the cattle market yesterday evening and we took it into Jay’s Restaurant and were chasing the customers around with it. Jay asked us to leave, and Leroy didn’t want to go. I told Leroy we’d better get going, and he took the gator by the neck and whipped it around and slapped me up side the head with the gator’s tail. That was when I went to the truck and got my shotgun.” I may not have believed the story if I hadn’t gotten corroboration from the deputy sheriff who was called to the scene to quell the disturbance.
Milo sat across the table from Kennedy. I sat on Milo’s left, and Poss sat on his right. Kennedy behaved like a perfect gentleman. He behaved so well that Milo excused Poss from attending future meetings with Kennedy. Milo felt that I would be a sufficient deterrent from that point forward. Milo decided that since I was going to be sitting between him and Kennedy at the trial, I might as well do some legal research for the trial. I welcomed the opportunity to do something more than being a bodyguard.
I read all the reports and the depositions taken in the case, and I thought I found something. I went to the lawbooks and researched the issue to make sure that I wasn’t seeing things, and my research confirmed my initial impression. The case had a fatal flaw. I eagerly reported it to Milo. The only evidence tying Kennedy to the victim’s body was his confession. Before a confession can be introduced into evidence, the state must first prove corpus delicti. Contrary to popular belief, corpus delicti is not the body of the victim—it is the body of the crime. Before you can introduce a confession to crime into evidence, you first have to prove that a crime was committed. The fatal flaw was in the medical examiner’s deposition. He didn’t know how or why the victim died. She was just dead. He could rule out any number of causes such as gunshot wound or automobile accident, but he could not rule out accidental death, suicide, or even natural causes. The state couldn’t prove corpus delicti without the confession, and they couldn’t introduce the confession until after they had proven corpus delicti.
Milo was happy about my discovery, but he threw some cold water on my enthusiasm. “I don’t care what the law says,” Milo opined, “Judge Smith is going to let that confession into evidence. If we win this case, we’re going to win it on appeal. We’ll just have to be careful to make all the proper objections and preserve the record for appeal. Do you want to argue the law to the judge when we get to that point?” I certainly did.
Then we got some interesting mail—a letter from the psychiatrists finding Kennedy sane and competent to stand trial, and an order from the judge changing venue of the case to Naples, Florida. I didn’t understand the order changing venue. Judge Smith hadn’t set the motion for hearing or asked for any supplemental briefs, he had just changed the venue without any input from us or the State Attorney. Milo explained. “Naples has good deep sea fishing, and Judge Smith likes to fish.”
We arrived in Naples a day early to familiarize ourselves with the courtroom and to prepare for the hearing on our motion to suppress Kennedy’s confession. We would hear the motion first thing in the morning and go directly into jury selection. We filed the motion to suppress on the grounds that the confession was involuntary. We were going to save the corpus delicti issue to raise during the trial. It had occurred to me that because Kennedy was going through drug withdrawal when he confessed, the confession might be held involuntary. And I had even found a case which could be read to support my position. It was a case in which a man named Joe Reddish had confessed to killing two men. Milo made the argument for the defense while I sat between him and Kennedy. Judge Smith denied the motion. Other than arguing the corpus delicti issue, my only job was to sit between Milo and Kennedy and make sure Kennedy didn’t try to hurt Milo. I had never been that close to a murder trial, and it was fascinating. Kennedy proved a nuisance, however, by continuously tugging on my coat sleeve and whispering advice into my ear. The advice was uniformly bad, and he became more and more agitated as the day progressed. I was doing my best to make him understand why we couldn’t do the things he wanted. During recesses when we could confer with Kennedy, Milo didn’t make matters any better; he was quite brusque in answering Kennedy’s questions. By the time we got to jury selection, Kennedy had had enough. He stood up and announced that he wanted to fire Milo and get another lawyer.
Judge Smith wanted to know what lawyer Kennedy had in mind. Kennedy said that his family had hired a lawyer and that the lawyer was going to be in Naples sometime this week. Kennedy wasn’t exactly sure who the lawyer was or when the lawyer would arrive. Judge Smith gave Kennedy a Hobson’s choice—he could have us as his lawyers or he could represent himself. Kennedy chose us as his lawyers. The trial progressed, but Kennedy was far from happy. Although capital cases require a jury of twelve, we picked a six person jury. Although Kennedy was charged with First Degree Murder, it wasn’t a capital case. Kennedy had timed his murder between the U.S. Supreme Court’s ruling that the death penalty was unconstitutional as applied and the Florida Legislature’s reinstatement of the penalty.
Eventually, we got a jury and the prosecution made a brief opening statement. Milo reserved his right to make an opening until beginning the presentation of the defense case. That meant he would make no opening statement because we didn’t have a defense case. Opening statements are a risky sort of a thing. Once you’ve made an opening, the jury expects the evidence to bear it out. If the evidence is overwhelming and your defense is to capitalize on the prosecution’s fumbles, you don’t want to commit yourself to a story line. As things moved along and we got into the presentation of the evidence, Kennedy became more restless. Milo did only perfunctory cross examinations of most of the early witnesses, since they merely mapped out the circumstances of the victim’s disappearance without incriminating the defendant. I tried to explain Milo’s reasoning for the brief cross examinations to Kennedy, but he was unconvinced.
Finally, the prosecution called the medical examiner. Here was where Milo would shine as a cross examiner. Here was where a careful cross would demolish the State’s attempts to prove a murder. The prosecutor went through the preliminary questions and then began to explore the ME’s qualifications. Milo stood and announced that the defense would stipulate to the doctor’s qualifications. This was good tactical move. We were going to depend on the ME’s testimony to establish that a murder couldn’t be proven. We wanted the jury to know that we respected his opinions. Kennedy went ballistic.
Before he could make much of a scene, Judge Smith had the jury hustled out and asked Kennedy what was the problem. Kennedy unleashed a stream of invective castigating Milo as worse than useless for a defense attorney. He wanted Milo fired on the spot and he wanted the judge to give him a new lawyer. Judge Smith told Kennedy that Milo was a fine lawyer, and that Kennedy wasn’t going to get any other lawyer than Milo. Kennedy said if that was the best he could do for a lawyer, he’d rather defend himself. Judge Smith said that he could certainly do that if he wanted to. Kennedy wanted to defend himself. We were fired. We packed up our briefcases and walked out the back door of the courtroom. I was disappointed that I wasn’t going to get to make my brilliant legal argument about the necessity for proof of corpus delicti before admitting a  confession into evidence.
Kennedy had torpedoed his case. He wasn’t going to be able to do a proper cross examination of the medical examiner, and the medical examiner wasn’t going to have to admit that he couldn’t rule out accident, suicide, or natural causes. Worse yet, he wasn’t going to make the corpus delicti objection when the state offered his confession into evidence. Failure to prove corpus delicti before admitting a confession is not fundamental error. You have to interpose an objection to preserve the issue for appeal. Kennedy was sunk.
Milo and I killed the rest of the afternoon seeing the sights in Naples, had a leisurely supper, and went back to our hotel room to pack in preparation for leaving to go home the next morning. We planned to sleep late, have a late breakfast, and hit the road around 10:00am. An early morning phone call wakened us and altered our plans. Milo answered the phone and found Judge Smith on the line. He wanted us to come to the courthouse as soon as possible, Kennedy wanted us back. We dressed and got to the courthouse by midmorning to find that our client was gone. While waiting for us to arrive, Kennedy had taken out a razorblade, which he had somehow smuggled into his cell, and slashed his wrist. Upon being apprised of this turn of events, Judge Smith ordered that Kennedy be taken to the emergency room and sewed up without the benefit of anesthetics.
When Kennedy got back to the courthouse, he had a bandage on his left arm and a rather sickly expression on his face. We conferred with him, and he said he still wanted to defend himself, but he wanted us there to give him advice when he asked for it. Milo told him that there wasn’t much we could do at this point. The confession had come into evidence and we hadn’t been there to object to it. Milo agreed, however, that we would sit at counsel table with him and give him whatever advice we could.
We took our seats, and the jury came in. I thought they were probably curious about what was going on in the defense camp. When the trial began, there were three men sitting shoulder to shoulder at the defense table, with Milo handling the conduct of the trial. Then two of the men disappeared, and Kennedy was defending himself. Now, they come back in and find three men again at the table, with a wide space between a bandaged Kennedy and his two attorneys. But the attorneys were just sitting there and Kennedy was still defending himself. The state had a few minor witnesses to put on that morning, and then they rested. We recessed for lunch, and  Milo and I went in search of a nearby restaurant.
When we got back after lunch, the bailiff advised us that Kennedy had somehow smuggled drugs into his cell, and had overdosed himself on them. When they checked his cell after lunch, they found him lying semi-conscious on the cell floor. Judge Smith ordered that Kennedy again be taken to the emergency room and that his stomach be pumped. Within a couple of hours, Kennedy was back and was conscious. The trial continued with final arguments—Kennedy had decided not to testify.
The prosecutor thought he saw a weakness in his case that had eluded us, and he spent a long time in his argument addressing the perceived weakness. First Degree Murder can be committed in one of two ways—it can be committed with premeditation or it can be an unpremeditated killing committed in the perpetration of certain felonies (“felony murder”). At that time the applicable felonies were arson, rape, robbery, burglary, the abominable and detestable crime against nature, and kidnapping. Kennedy had obviously committed the murder during the course of a kidnapping, but the indictment charged premeditated murder. At that time the law in Florida provided that you could not charge felony murder and convict with evidence of premeditated murder, you had to prove the underlying felony. The prosecutor obviously thought that the opposite was also true—that you could not charge premeditated murder and convict with evidence of felony murder. He was mistaken. The law of Florida allows you to charge premeditated murder and convict with evidence of felony murder on the theory that the commission of the felony gives you “constructive” premeditation.
The prosecutor spent a lot of time arguing that various facts about the crime showed premeditation, but the argument was unconvincing. This gave us an opening. Since the prosecutor thought the jury had to be convinced of premeditation and had argued that theory to the jury, we could defend by pointing out the complete absence of any real evidence of premeditation. We had a real shot at getting a Second Degree Murder verdict if we could get the jury to realize that there was no evidence of premeditation. We explained this to Kennedy, and told him that in his argument he needed to zero in on the complete absence of evidence of premeditation. He tried, but he made one statement that I think sealed his fate. In arguing the absence of premeditation, he told the jury “I didn’t mean to kill her, I just stuck her in the trunk and she must have suffocated.”
It didn’t take the jury long to find Kennedy guilty, it didn’t take Judge Smith long to sentence him to life in prison, and it didn’t take the appellate court long to affirm Kennedy’s conviction. (See Kennedy v. State, 300 So.2d 909, 2nd DCA Fla. 1974). It took Kennedy a long time to serve his sentence. He died in prison in 2010 after serving over 35 years for the murder, and the bodies of his 13 other victims (if he really had 13 other victims) were never found.