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THE RISKS ASSOCIATED WITH BEING A PROSECUTOR, PART 2

Back in the mid 1980’s, I got assigned to a case against a drug smuggling ring headquartered in Chicago. The interesting thing about this ring was that approximately half of the members of the ring were either current or former Chicago police officers. The charges included Racketeering, Conspiracy to Murder, Kidnapping, and Murder. Two of the men we indicted were reputed to be organized crime hit men. You can read a more in-depth account of the case in my blog post titled THE WRONG MAN MURDER.

The nice thing about working on the case was that I wasn’t the lead prosecutor. I had been called in to help out on the case when the defense team filed somewhere in the neighborhood of 200 pretrial motions. Although I didn’t like pretrial motion practice, I was pretty good at it, so I got assigned.

After the dust had settled and the smoke had cleared from hearing all the pretrial motions, I stayed on to assist in the trial of the case. This was probably the most complex case I ever tried, which was probably another reason I was kept on after the motion hearings. I was also pretty good at organizing vast quantities of evidence. The office was just entering the computer age, and our system came with a very primitive database program. I used the database program to work out a system for organizing and keeping track of all our witnesses and evidentiary exhibits. It was fun, and I got totally hooked on computerizing trial preparation.

The trial team was a reunion of the Ted Bundy trial team. Len Register was the lead prosecutor, Jerry Blair assumed the role of “player-coach,” and I was the water boy. We tried the case on change of venue to Tallahassee Florida, and I rented a room in a fleabag motel hoping to economize on travel expenses. When we had tried Ted Bundy a few years before, I had run up a whopping credit card bill which took a good long while to pay off, and I wasn’t planning on doing that again.

Jerry and Len seemed awfully nervous about personal safety. They both carried concealed weapons which they had to turn in to courthouse security every morning and retrieve every afternoon. FDLE had formed a witness protection team which acted as bodyguards for our important witnesses, some of whom actually testified while wearing bullet proof vests.  Initially I thought this was a silly display of paranoia, and I took great pleasure in kidding Jerry and Len about their timidity.

Then some relatives of one of the reputed hit men came to town in a black Cadillac and started attending the trial. The Sheriff’s Office tactical unit kept tabs on them while they were in town. They did some strange things, but nothing you could really call criminal. They got blamed for one thing that happened, but there was really no proof they were responsible. Somebody booby trapped the bomb squad which swept our courtroom for explosive devices every morning.  One morning while they were in the courtroom sweeping for bombs, somebody was taking the lugnuts off of two of the tires to their van. After they got through sweeping the courtroom, they went back to the van, got in, and drove off. They hadn’t gone very far before the wheels fell off. I thought it was funny.

I started losing my sense of humor one night about two in the morning when I got a call on my hotel phone. I answered the phone, but my caller did not speak. I said “Hello” several times but got no response. It wasn’t a hang up call, my caller stayed on the line unspeaking. I hung up the phone and went to the manager’s office. The motel was so primitive that there was a little switchboard in the manager’s office. Callers would call the main number and ask for a room, and the manager would connect the caller to the requested room. I wanted to know who the blazes had called, and the night manager ought to know.

He didn’t. Somebody had just called and asked to be put through to my room, and the manager had obliged. I told the manager I needed to change rooms, and I needed to change rooms immediately. He put me up in a room at the other end of the motel from the room I had rented. I slept there that night, and moved my luggage into the room the next day. I continued to park my car in front of my original room.

Then somebody scrawled a death threat on the window of one of the juror’s hotel room. Then one night somebody got to the judge’s car, lifted the hood, and unhooked one pole of the battery. He was seen and fled on foot before he could do anything else. Of course, the theory law enforcement liked was that he was trying to hook a bomb to the judge’s car. The next weekend I drove back to Lake City and retrieved a handgun.

As I said, the Sheriff’s Office tactical unit was keeping track of the black Cadillac as it tooled about town, but sometimes they lost it. One of those nights when they lost the Cadillac I was suffering from insomnia. I decided what I needed was a nice Diet Coke, so I stepped out of my room to walk to the one drink machine in the motel. It was then that I saw a black Cadillac pulling into the motel parking lot. I faded into the shrubbery and watched. The Cadillac turned to drive in the direction of my car, which was still parked in front of my old motel room. When it turned, I could see the license plate—an Illinois tag. The Cadillac slowed down in front of my car, made a U-turn, and drove back out of the parking lot. I got out of the bushes, went to a phone, and called the tactical unit. They posted a highly visible guard on my room for the rest of the night, and I moved out the next morning.

I moved to the motel that was being used by the witness protection team and got the room next door to theirs. It was much more expensive, but I slept much better in my new room. Finally the trial ended, and I can’t say that I was unhappy to be through with it. I believe that two of the defendants were among the most dangerous men I ever prosecuted, and I have prosecuted many dangerous men.    

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WHAT DOES IT TAKE TO BE A GOOD PROSECUTOR?

As the current semester draws to a close, I am preparing for the next. While going through some of my old papers I came across a quote that I used back in 2006 during my first semester teaching the Prosecution Clinic. I felt it summed up what a prosecutor is supposed to do in a courtroom better than anything else I had ever read.

The author was a man named Richard Whately, who served as the Bishop of Dublin for the Church of Ireland back in the mid 1800's. Whately was a true polymath, who was recognized as a expert in the fields of rhetoric, logic, economics, and theology. He wrote extensively on all these subjects, and his books are still available at Amazon and Barnes & Noble.

In his 1828 work, "The Elements of Rhetoric," he described the task of the rhetorician as follows:

"Keep always on the side of truth; and, avoiding all sophistry or double dealing, aim only at setting forth that truth as strongly as possible, without any effort to gain applause for your own abilities."

Ironically, he said this admonition did not apply to lawyers, whom he evidently thought were a bunch of gangsters. If it doesn't apply to lawyers, it should. And it should apply doubly to anyone who wants to be a good prosecutor.

YAHOO NEWS IS STUNNED BY YOUTH'S DISPLAY OF RELIGIOUS PRINCIPLES

Yahoo News has just reported what it calls "one of the strangest cases of purported religious beliefs intersecting with athletic performance." A young girl competing in a cross-country race became upset because she had been assigned the number 666 to wear. She asked for, and was denied, permission to run with another number. She refused to run with the number, and forfeited a chance to compete in the Kentucky state championships, a goal she had been working toward for three years. The article said that the girl's decision "stunned" everyone at the meet except her coach. You can read the story by following this hyperlink.

Here's what I think is strange about the story:

1. That anyone would think it was strange for a person to refuse to wear a symbol which was deeply offensive to that person's religious beliefs.

2. That anyone would be "stunned" because someone valued their religious beliefs above success in an athletic competition.

3. That the author of the article would characterize the girl's religious belief as "purported."

4. That the authorities who denied her request to change numbers would disingenuously claim that she never said she wanted to change numbers because of her religious beliefs.

I salute Cody Thacker. She stood up for what she believed in and willingly suffered the consequences. Instead of being ridiculed, she should be admired.

It has not been that long ago that instead of being "stunned" by "strange" refusals to violate "purported religious beliefs," we celebrated them. A similar incident occurred in the 1924 Olympics, when the British sprinter Eric Liddel refused to run the 100 meter dash because it was contested on Sunday. He refused in the face of the strong insistence of the British Olympic Committee and the Prince of Wales. To make a long story short, Liddel became admired as a hero and was mourned by an entire nation when he died during World War II. The 1981 movie Chariots of Fire told his story, and the story of his Jewish teammate, Harold Abrahams, who won gold when he ran in Liddel's place. The movie grossed $58,972,904 in the United States--and a dollar went much farther back in those days. 

Why, in 1981, did the American media celebrate Liddel as a hero when today it wonders at Cody Thacker's "odd" behavior? The last time I checked, the First Amendment still guaranteed freedom of religion, not freedom from religion. To question a young girl's principled stand based on her religious beliefs is reprehensible.

THE RISKS ASSOCATED WITH BEING A PROSECUTOR

There is a certain amount of risk associated with any calling, including the calling to be a prosecutor. I never worried that much about the risk associated with being a prosecutor, but occasionally I was confronted by the threat of violence. There were a number of death threats made over the years, but I never paid much attention to them and nothing came of them. I do recall one case I tried where a member of the audience came to me during a break and warned me that the defendant’s family was talking about accosting me and beating me up after the trial was over. I wasn’t particularly frightened by the warning, but I decided to take some precautions. After the trial was over and the defendant was on his way to prison, I went back to my office and got my State Attorney issued .38 revolver out of my desk drawer. I dropped it in my pocket and drove home without incident feeling safe and secure. When I got home, I decided to unload the revolver before taking it into the house I shared with my wife and three children. I pulled the revolver out of my pocket, popped the cylinder open, and discovered that the gun was empty.

I once tried another case against two ruffians who had sexually assaulted another man. The case was very contentious, and when I cross examined the defendants I was particularly rough on them. In final argument I raked them over the coals pretty well, and by the time the jury returned the verdict finding them guilty, I could tell that they didn’t like me very much. To my surprise, the judge released the two on their own recognizance pending sentencing. I prosecuted in a rural circuit, and the courthouses were widely separated from each other. I had a trip of some thirty miles down lonely country roads to get home. I drove those thirty miles with the defendants’ pickup truck on my bumper almost the entire distance. I didn’t have my revolver that day, but I did have an axehandle that I habitually carried in my car. I must admit that I was just a little nervous during the trip.

On another occasion I was leaving the courtroom after getting a first degree murder verdict. I had been assisted in the trial by ASA Dana Brady, and we were walking out together. When we got into the hall, I looked toward the elevator at the end of the hall and saw a burly young man standing in front of it with a group of people. He yelled something inarticulate and began down the hall towards Dana and me. The people he was with tackled him and pulled him back. Just about that time the elevator door opened and they pulled him into the elevator. “I wonder what that was all about,” I casually remarked. Dana, who had gone to school with the defendant and knew his family, replied “That was the defendant’s brother, and he was attacking you.”

Then there was the time that I was escorting a victim out of the courthouse when she was attacked by the person she had complained against. The victim ran out the front door of the courthouse and across the park, and I never saw her again. There were no officers around, so I grabbed the assailant and got her stopped. She said something to the effect of “Let me go, I’m gonna put some knots on her head!” That was when I noticed she had what looked like an enormous butcher knife in her hand. I let the woman go, but stood in front of her to block her exit from the courthouse and told her to give me the knife. It seemed like an eternity as we confronted each other on the courthouse steps and I tried to get her to put down the knife. The courthouse was usually crawling with law enforcement officers, but that particular day there were none anywhere. Eventually the woman told me, “Well, if you’re going to carry me to jail, go ahead and do it.” As a Florida Assistant State Attorney, the law recognized me as a law enforcement officer but I was a law enforcement officer without arrest power. I decided that would be no problem because the woman had consented to the arrest, so I told her to come with me. She threw down the knife and I marched her into the Chief Deputy Sheriff’s office, explained to the Chief Deputy that this woman needed to be carried to jail, and if he would watch her a few minutes, I’d go get the necessary paperwork. I went to my office, typed up an arrest warrant, and took it to the judge. When I got it signed, I took the warrant directly to the Chief Deputy and told him to arrest her. Having made my “arrest,” I went to where she had thrown the knife to collect it as evidence. You can imagine my relief when I discovered that she only had a red-handled file and not a knife.

I mentioned that as an Assistant State Attorney, I was recognized by Florida law as a law enforcement officer. That status figured prominently in this next story. I was trying a bodybuilder on misdemeanor indecency charges and had just got a conviction. As I stepped to stand before the bench and ask the judge to impose sentence, the defendant jumped up and suckerpunched me. He loosened a couple of teeth and either knocked me down or tackled me to the floor, I don’t know which. He assumed what the UFC would call the full mount position and began to engage in the MMA maneuver known as “ground and pound.” I fishhooked him with one hand and threw punches back at him with the other, but you can’t throw a very heavy punch lying flat on your back. If I’d had any sense, I would have covered up and waited on the bailiffs to subdue him. By the time they got him subdued and I regained my feet, I had changed my mind about recommending probation. The judge gave him 18 months in the county jail, and when that sentence was over he went to prison for the felony of battery on a law enforcement officer.

I had meant to conclude this post with an account of the one time that I really felt that I was in danger, but the story of that case is a little too long. In my next post I’ll talk about the Wrong Man Murder, why I believed that I was being stalked by gangsters from Chicago, and what I did to neutralize the threat.

THE WRONG MAN MURDER

Yesterday I ran across an interesting blog post about a case I helped to try in 1984. It was variously known as the Austin Gay Murder Case, the Domberg Case, and the Wrong Man Murder. The post was written by a lady who had served on the jury, and the experience obviously had a profound effect on her. I found her comments quite interesting. It's a six part blog. Here are hyperlinks to each of the parts:

Before You Judge, Part 1;

Before You Judge, Part 2;

Before You Judge, Part 3;

Before You Judge, Part 4;

Before You Judge, Part 5;

Before You Judge, Part 6.

The lady made some pretty shrewd observations about the trial and its participants, and gave me a belated view into the jury room in the case which I'll always remember as "The Case We Lost But Nobody Noticed."

Our objective in this case was to convict the defendants of murder, but we knew that we had a weak case. We decided to try to prop the case up with additional charges which were easier to prove: Racketeering, Kidnapping; Conspiracy to Murder.

Our case theory went something like this: The Domberg Gang hired Joe Sallas to go to Florida and kill an Agricultural Inspector (Leonard Pease). While Sallas was in Florida, another Agricultural Inspector (Austin Gay) was murdered. Because Sallas was the only person we knew of who had gone to Florida to kill an Agricultural Inspector, he must be the one who killed Austin Gay.

I believe that we severely weakened our case because we indicted one man too many. Here's how it happened:

According to the gang members whom we "flipped" to testify, Sallas recruited a friend who had just gotten out of prison in Oklahoma to go to Florida and help him. The helper was a former paratrooper and the crime he was serving time for was murder. The only man who had just gotten out of prison in Oklahoma on a murder charge was Billy Jim Cherry, and Cherry was a former paratrooper to boot. Cherry appeared in a lineup and took a polygraph. He was identified in the lineup and he flunked the polygraph. We had enough to indict Cherry, but just barely. Of course, the polygraph results weren't admissible in court, and our eyewitness identification was made by the least credible of our "flipped" witnesses. Viewing the case with 20/20 hindsight, it is easy to say we should not have indicted Cherry.

To add to our woes, our star witness died of a heart attack just before the trial began. We quickly plea bargained with two more members of the Domberg Gang and "flipped" them as well. It wasn't enough.

Of the four men we eventually tried, Cherry was acquitted of all charges; Sallas was acquitted of Murder but convicted of Conspiracy to Murder; Ed McCabe was acquitted of Murder but convicted of Racketeering and Conspiracy to Murder; and the kingpin, Robert David Domberg was acquitted of Murder but convicted of Racketeering, Kidnapping, and Conspiracy to Murder. As far as I was concerned, we had lost the case.

When sentencing time came, each man was sentenced to the maximum sentence allowed by law. Sallas got 30 years and Domberg got 90, with McCabe getting a sentence somewhere in the middle. After it was all over, we were universally congratulated for a job well done. Apparently nobody, least of all the defendants, noticed that we had lost the case.

The Domberg Case exemplifies a peculiar type of case that prosecutors sometimes confront--The Case That Has To Be Tried. This type of case is one where:

1. You are satisfied that the defendant(s) are guilty of a horrific crime.
2. You have marginal evidence which is not going to get any better.
3. You stand a fair chance of winning, but a bigger chance of losing.
4. If you are going to have any hope of doing justice, you are going to have to try the case.

Over the years I've tried a number of homicide cases (and other serious cases) that "had to be tried." I won some, and I lost some. I don't regret trying any of them.

A few parting thoughts about cases that have to be tried: If you have any reasonable doubt about the defendant's guilt, you do not file charges. If your chances of winning are slim to none, you do not file charges. You only file when you firmly believe the defendant to be guilty and firmly believe that you have a chance to convict. Public outcry about the case, no matter how loud it may be, must not figure into the decision making process.

ABRAHAM LINCOLN'S ALMANAC TRIAL: THE ALMANAC TRIAL INDICTMENT

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