Monday, December 3, 2012


I got my first job as a lawyer back in the days when you could buy three gallons of gas for a dollar. The court system was somewhat primitive compared to what it is today, and the trial of a criminal case could be a wild and woolly adventure. There is an old saying that experience keeps a dear school, but a fool will learn in no other. I wasn’t a fool as a young lawyer (at least I don’t think so), but I once did a very foolish thing. I think it was during my first week of training as a rookie public defender that my boss asked me if I wanted to try a case. I felt, quite rightly, that I needed a little more time as an observer. I could tell by his reaction that I had given him reason to doubt my manhood. I resolved never again to back down from any challenge he gave me. The next time he asked me if I wanted to try a case, I said “Certainly,” even though it was the morning of trial and I had never met my client. Wonder of wonders, I got him acquitted. I tried more cases and had more successes. I was beginning to feel good about myself, and that contributed to my decision to do the very foolish thing.

One fine morning, I was riding to a courthouse in a distant city when my boss, Public Defender Milo Thomas, said, “Well, it looks like I’m going to have to try this dumb [expletive deleted]. He doesn’t have the sense to plead out to Second Degree Murder, and it looks to me like they’ve got him dead to rights.” After a brief pause, he asked “Bob, do you want to try him?” Although I had only been working at the Public Defender’s Office for a few months, and although I had only tried five felony jury trials, I remembered my resolution never again to back down from a challenge. “Okay,” I said, “I’ll do it.”  I spent the rest of our trip poring over the rather skimpy case file we had, and I thought I was fully prepared for the trial by the time we arrived at the courthouse. I really didn’t appreciate the significance of what I was getting myself into. Florida had just reinstated the death penalty after the Supreme Court’s decision in Furman v. Georgia, and my client was going to be the first death eligible murder defendant to go to trial after the reinstatement.

I will call my client Paul Bunyan because he worked as a pulpwood logger at a time when automation had not yet arrived in the pulpwood industry. As a consequence, he was heavily muscled and rapier thin. Working with axes and crosscut saws and loading logs by hand in the humid heat of North Florida insured that you would have lots of muscle and very little fat on your body. Pulpwooders worked hard through the week and partied hard on Friday and Saturday nights, and often those parties ended in violence as large volumes of whiskey mixed with large volumes of testosterone. On this particular Saturday night, Bunyan had come second best in a bar fight, and he wasn’t one to lightly admit defeat. He left the bar and went home to get his pistol. By the time he returned, the night shift deputy sheriff was sitting in the parking lot of the bar taking his “lunch” break. As the deputy sat in his patrol car eating a fish sandwich, he saw Bunyan return to the bar and take up a position by the door of the bar. Bunyan had not stood there long before his antagonist had left the bar and headed for his pickup truck to go home. Bunyan followed him. As the man opened the door of his truck and began to sit down, Bunyan opened fire with his pistol. When he was done shooting, he walked off, left his victim lying on the pavement and headed straight for the deputy’s patrol car. He walked up to the window and told the deputy, “If you try to arrest me, I’ll kill you, too. Tell the Sheriff that I’ll be at home if he wants me.” The deputy had plenty of moxie, but Bunyan had the drop on him, so he let Bunyan go and called for backup. In short order the Sheriff arrived on the scene and organized a team of officers to surround Bunyan’s house. When they had the area secured, the Sheriff called on Bunyan to give himself up. Bunyan came out with his hands up and meekly submitted to arrest.

When we had first interviewed Bunyan shortly after his arrest, he maintained that he fired in self defense and that the deputy was lying about how it happened. When we asked why the deputy might be lying, Bunyan replied “He wants to get me out of the way so he can have my wife.” The facts that Bunyan’s wife wasn’t particularly attractive and that the deputy was happily married were not necessarily insurmountable obstacles to Bunyan’s defense, but another fact seemed to doom it. Everyone else who had been in the parking lot that night agreed with the deputy—the victim had not threatened Bunyan and Bunyan had shot him down for no good reason. If I were going to wager on who was telling the truth, I’d put my money on the deputy.

As we approached the courthouse that morning, I began to get cold feet. “Do you think Judge Agner will be happy with me handling a murder case with so little experience?” Milo assured me that everything would be fine. “I’ll be right there with you.” Milo’s definition of right there with me was somewhat different from mine. I assumed that he would be sitting at counsel table with me. He decided that he would be close enough if he sat in the grand jury box on the right hand side of the courtroom. It was only 15-20 feet from counsel table to where he was sitting, and I could always get up and walk back to the grand jury box to ask him questions. We met briefly with our client and made him understand that I would be his lawyer now. We could not make him understand that getting on the stand and accusing the deputy of perjury would be counterproductive.

Finally, the time came for jury selection. We took our places at counsel table and I put my briefcase on the floor immediately to the left of my chair. Judge Agner called 12 people into the box, and the prosecutor started asking them questions. I had trouble hearing what they were saying because I was too busy worrying about what questions I should ask. The prosecutor finished and it was now my time to ask questions. I got up, turned left, took two steps, and tripped over my briefcase. I was able to catch myself on the table before I hit the floor. I righted myself, walked to the lectern, and asked a series of questions that I hoped sounded intelligent. When I finished, Judge Agner gave us time to discuss among ourselves who we might want to challenge. I walked back to the grand jury box and asked Milo what he thought. “Looks like a pretty good jury to me.” I asked him how I was doing. “You’re doing great. Keep up the good work.”

The State’s case went by quickly. The only fireworks came over a difference of opinion between me and the prosecutor as to what constituted a leading question. Judge Agner broke the tie in my favor, but the prosecutor insisted on continuing to ask leading questions. I continued to object, Judge Agner continued to sustain my objections, and the prosecutor’s face got redder and redder as his anger mounted. I felt completely at sea, conducting my cross examinations in a tentative, hit-or-miss manner. Between witnesses I would walk back to the grand jury box to ask Milo how I was doing. His answer never varied. “You’re doing great.” Did Milo have any suggestions? “Keep up the good work.” As the day wore on, Milo got restless. Often, when I started back to the grand jury box, I would see that Milo had left the courtroom. Finally, the prosecution rested. I put on the few witnesses Bunyan wanted us to call, and then we got to the essential point of the defense. Would Bunyan testify?

Bunyan wanted to testify; he insisted on testifying. There was nothing either Milo or I could do to talk him out of it. He took the stand and, though I felt it was my duty to believe in my client, I felt very strongly that nobody else in the courtroom was buying his story. When the prosecutor crossed him, Bunyan accused each and every state witness of perjury. Bunyan especially accused the deputy of perjury. Finally, it was over, and we could go to final arguments. What was I going to argue? My reasoning went this way: I had to believe my client. My client said everyone else was the liar and he was the oracle of truth. I had to argue to the jury that my client was the oracle of truth. Bunyan had said that the deputy was the biggest liar among the prosecution witnesses; therefore I had to echo that sentiment in my argument to the jury.  

We finished our arguments; the judge instructed the jury on the law; the jury retired to deliberate on its verdict; and we went into a holding pattern waiting on their verdict. We hadn’t waited more than an hour when the jury knocked on the jury room door and the bailiff went to ask them if they had a verdict. They did not, but they did have a question. Judge Agner sent a yellow pad into the jury room with instructions that they write their question on the yellow pad, and I conferred with my client on the new development.

Based on my vast experience with jury trials, I told my client “The jury has a question. That’s a good sign. It means that they’re confused about something, and confusion almost always works to the benefit of the defense.” We waited some more. Eventually, another knock came on the door, and the jury foreman handed the yellow pad to the bailiff. The bailiff took the pad to Judge Agner, making sure that none of the lawyers could get a glimpse of it before Judge Agner had a chance to see it.

We assembled in Judge Agner’s chambers and he studied the yellow pad. He then handed the pad to the lawyers and we got a look at it. The question was: “Do we vote on the death penalty now, or does that come later?” Judge Agner asked if we agreed that the penalty was not to be considered at this point in the trial, and when we agreed, he wrote a note on the yellow pad telling the jury not to consider the penalty at this time. Almost as soon as the note was passed into the jury room, they came out with their verdict: Guilty of Murder in the First Degree. I asked the judge if I could have a few minutes to prepare for the penalty phase and he graciously allowed me 15 minutes.

For the first time in my legal career, I read the chapter of the Florida Statutes dealing with the death penalty. I learned that before the jury could recommend the death penalty, they had to find that at least one “aggravating circumstance” existed. The aggravating circumstances were listed in the statute, and I read them carefully. There were no aggravating circumstances in Bunyan’s case. I breathed a sigh of relief. I pointed this fact out to the judge and the prosecutor, but they both insisted that the jury had to hear evidence and argument and render their advisory sentence. Neither the state nor the defense had any evidence to put on, so we moved directly to arguments. I am quite certain that I was far more frightened by the proceedings than Bunyan was. The prosecutor asked the jury to recommend death, and then it was my turn to speak. The gist of my argument was “Please don’t kill my client,” and I bolstered the argument by reading each of the statutory aggravating circumstances and explaining how none of them applied. Mercifully, the jury returned an advisory sentence of life in prison without possibility of parole for a period of 25 years. It was the Third Judicial Circuit’s first Capital Murder case to go to penalty phase after the reinstatement of the death penalty, and we didn’t even have a proper advisory sentence form. The advisory sentence was hand written on a piece of paper torn from a yellow pad. I had trouble sleeping for weeks afterward.

I filed a motion for new trial on a very hypertechnical argument about the sufficiency of the jury instructions, and we argued the motion the next month when we came back to town to hold court again. Judge Agner took the motion under advisement and sat on it for almost nine months. During that time I tried several more First Degree Murder cases and actually got one client acquitted. No client of mine ever again got convicted of First Degree Murder, and I never again had to make a penalty phase argument for the defense. I got to the point that I was feeling cocky about my abilities as a homicide defense attorney. Some of those First Degree Murder cases I tried were even more one-sided than the Bunyan case, and the prosecution never got a verdict for anything greater than Second Degree Murder. If I could only get another crack at trying Bunyan again, I was certain I could do a much better job. In addition to three or four murder trials, I had tried approximately two dozen felony jury trials and an even greater number of misdemeanor jury trials, and I was beginning to learn my way around the courtroom. Finally, Judge Agner ruled. He granted us a new trial! I believe he was less convinced by my legal arguments than he was concerned by my lack of experience.

The biggest problem with the second trial was Bunyan’s desire to testify. I tried to explain to him that it was his testimony which had doomed him the first time, and that it would likely do so again. I told him we had a good chance of getting a lesser verdict if he would just keep his mouth shut. I could not get him to listen to reason. I was, however, a little bit better equipped to deal with his obstinacy.

The law says that you cannot offer perjured testimony. It also says that a defendant has an absolute right to testify in his own defense. I had offered Bunyan’s testimony in the previous trial by playing mental gymnastics and reasoning that it was remotely possible that he was telling the truth and everyone else was lying. I was not prepared to do that again, and I certainly wasn’t ready to stand before a jury and solemnly assure them that they could trust his story. In 1973, Florida law had recognized the dilemma of not offering perjured testimony but honoring a lying client’s desire to testify, but as yet it had not devised a solution. I decided that I would put him on the stand, let him make a narrative statement about the incident, and argue the case to the jury as though he had never testified. There was some out-of-state authority that said a lawyer could properly do that, and I decided to rely on it. I firmly believe that my decision to handle Bunyan’s testimony in this manner was what got a lesser verdict of Second Degree Murder.

I had made the prosecutor angry in the first trial, but that was nothing compared to his rage at my tactics in the second. The prosecutor had a habit of holding back at least one good argument and not making it in his opening final argument. He would save it for his closing final argument when the defense would be unable to respond. It was a fairly common tactic, but it had backfire potential. The argument he decided to hold back in his opening was his attack on the credibility of my client. He said nothing about the cock-and-bull story Bunyan gave from the witness stand, secure in the belief that I would have to argue it in my final argument and he could crush me with the argument in his closing. But I didn’t even mention that my client had testified.

After I finished making my argument, the prosecutor got up and began to lambaste Bunyan’s credibility. I objected. Closing final argument is limited to answering things said in opposing counsel’s argument. If a fact isn’t argued, you can’t answer it in closing final argument. I explained to the judge that I had been very careful not to even mention the fact that my client had testified, and that the prosecutor was therefore foreclosed from making any argument about Bunyan’s credibility. The judge ruled with me, and the prosecutor almost had a conniption. He tried several times to attack Bunyan’s credibility, but each time I objected, and each time the judge sustained my objection. You could have fried an egg on the prosecutor’s forehead.  Bunyan was convicted of Second Degree Murder and got life again, but there was no mandatory 25 year minimum, and he would be eligible for parole in a few years. In those days, if you behaved yourself in prison, you did about seven years on a life sentence for murder. My client was going to spend a few years in prison, but what else should he expect when he committed premeditated murder in front of a deputy sheriff and a parking lot full of onlookers?

I was quite proud of myself, thinking I had done a great job of arguing the case to the jury. In the light of 20/20 hindsight, I came to revise that opinion. Over thirty years after the trial, I went back to the clerk’s office and read the trial transcript. I could be wrong, but I believe I did this because I was looking for transcripts to copy and use in my law school class. I was flabbergasted by the final argument I gave. It sounded nothing like a defense final argument in a Capital Murder case. It sounded like a prosecution opening statement in a Second Degree Murder case! Needless to say, I didn’t copy that particular transcript for my students.