On either side of the tower entrance to the jail stood two majestic oaks. One midsummer evening back in the early 1970’s, Deputy Sheriff Kirby Benton was standing under those trees when he saw a taxicab drive down the road toward the jail. The taxi pulled up as if to park between the trees, but it did not slow down. The taxi rammed one of the trees, crumpling its front bumper and knocking the bark off the tree. The driver’s door opened and Jonathan Franklin Small staggered out. He steadied himself on the trunk of the taxi as he walked around it to address the deputy. (In the spirit of Sgt. Joe Friday, I have changed some names to protect the innocent.)
“Hey, Kirby, I done shot and killed a man back down the road a ways. Should I go back and cover him up or what do you want me to do?” Benton had known Small for years and knew him to be an alcoholic ne’er do well who had never caused any real trouble. In light of what he knew about Small, Benton replied, “What I want you to do is get your butt back in that taxi and go home before I arrest you for DWI.” Small staggered back around the taxi, got under the wheel, and backed off the tree. He drove away from the jail, but he did not go home. He first stopped at a dancehall where he announced to anyone who would listen that he had killed a man and left him on the side of the road. Nobody paid any attention to him. Small got plenty of attention at his next stop. He walked into a liquor store and stuck the muzzle of a .45 caliber pistol into the clerk’s face and said: “Gimme all your money, and don’t gimme any crap. I done killed one man tonight and I wouldn’t mind making it two.” In addition to the money from the cash register, Small took two bottles of Mogen David 20/20 wine—“Mad Dog 20/20” as it was sometimes known. Small repeated his performance at another liquor store, warning the clerk that he had already killed one man and wouldn’t mind killing another, and then he rented a motel room in White Springs, Florida, near the Hamilton/Columbia County line. He didn’t finish his nap before Deputy Sheriffs from both counties knocked the door down and carried him off to jail.
When he recovered from his hangover, Small was ready to talk. He told Sheriff Charlie Rhoden everything he could remember. Small had been in an alcohol rehab halfway house in Gainesville when he decided he wanted to sell his Model 1911 Colt .45 pistol, and he thought he knew where he could find a buyer. All he needed to do was get home to Jasper, get his gun, and sell it. His plan had only one flaw—he had no car. Ever the resourceful entrepreneur, Small hit upon the idea of getting a taxi driver to carry him to Jasper in exchange for half the profits realized from the sale of his gun. After some searching, he finally found a driver who seemed willing to partner with him in the venture. Such an Odyssey required lubrication, so the two of them stopped at a bar on the way out of town and got a couple of bottles of Mad Dog 20/20. They had run dry by the time they reached Alachua, so they stopped at bar and got two more bottles of Mad Dog 20/20. By the time they reached Jasper, they had made several more stops to replenish their supply. At this point in the narrative, Small’s memory became fuzzy. He could remember that they definitely got the gun from his mother’s house, but he couldn’t quite recall what happened next. He did, however, remember stopping the taxi on a lonely dirt road. He did remember telling the cabbie to start running, and he did remember shooting the cabbie in the back. He said the bullet hitting the cabbie made a “whump” sound like a bullet hitting a deer. Then things went black until the Sheriff had rudely awakened him as he slept off his drunk in room 3 at the Starlight Motel. Small hadn’t a clue where the cabbie might be found.
This was the situation when I arrived in Jasper to assume Small’s defense. Hordes of lawmen were combing the woods looking for the cabbie, and Small was sitting in the jail rubbing his head and repeating that he’d keep trying to remember where he left the cabbie. I met with my client and strictly instructed him that under no circumstances whatsoever should he continue to talk to law enforcement. If he were to tell them where to find the body and they found it following his directions, that would be additional evidence of guilt to send him off for the rest of his life, or maybe even to the electric chair. As I talked to Small, I began to formulate the germ of an idea for a defense.
Florida has one of the toughest insanity laws in the United States. The defendant must be so mentally ill that he does not know the difference between right and wrong. You have to be more than a few bricks shy of a load to be that crazy. But an old Florida case recognized a form of insanity which was “super-induced by the long and continued use of intoxicants so as to produce ‘a fixed and settled frenzy or insanity either permanent or intermittent.’ ” Cirack v. State, 201 So.2d 706, 709 (Fla. 1967). I felt sure that Small was operating under such a fixed and settled frenzy, and all I needed was a mental health professional to back up my diagnosis. Even if I couldn’t get a psychiatrist to testify that Small was insane, I could still use psychiatric testimony to show he was so heavily intoxicated he could not possibly have premeditated a murder. Back in the 1970’s, intoxication was a partial defense to a first degree murder charge. It could reduce the degree of the crime to second degree murder and save the defendant from the electric chair. I was satisfied that if I couldn’t find a psychiatrist to say Small was crazy, surely I could get one to testify that he was too drunk to premeditate a murder.
While I was scouring Lake City and Gainesville looking for a psychiatrist who would agree with me, my boss, Public Defender Milo Thomas, was up in Jasper assisting me with the case. Milo’s idea of assisting was to call Sheriff Rhoden to the jail so the two of them could browbeat Small into revealing the location of the body. They worked long and hard, but they could never get Small to say anything other than “I don’t remember.” They’d probably still be at it if a farmer driving down a little-used road on his property hadn’t found the body.
At the time, I disapproved of what Milo was doing, but felt it impolitic to try to correct my boss. Years later something happened which caused me to reconsider the wisdom of Milo’s tactics. It was another missing body murder case and I was with the prosecutor’s office by that time. We were certain that eventually we would find the victim’s body, but Milo stepped in to speed things up. He brokered a deal for his client to reveal the location of the victim in return for a life sentence.
My quest for a psychiatrist or psychologist who would agree that Small was insane proved fruitless. I couldn’t even find one who would say that Small was too drunk to premeditate a murder. No real problem. I was certain that I could talk the prosecutor into taking a second degree plea. That didn’t work either. He told me he was taking no plea bargains in the case. He intended to settle for nothing less than a verdict of guilty as charged and a death penalty.
How was I going to defend a man who was caught with the victim’s cab, whose gun had fired the fatal bullets, who had the victim’s blood all over his clothes, and who had confessed to no fewer than thirty different people? I had an idea. I might not be able to find an expert to say that Small was too drunk to premeditate a murder, but I could certainly make a common sense argument to that effect. Anybody who would crash a stolen car in front of the jail and announce to a deputy that he had committed a murder had to be crazy drunk. If you throw in the fact that he also confessed the murder to a dancehall full of people and to every victim in his string of robberies, he looked insanely drunk.
I filed a discovery disclosure putting the state on notice that I was going to offer testimony about Small’s robberies as defense evidence. Usually the state loves for the jury to know that the defendant has committed other crimes, but in this case they didn’t. The prosecutor filed a motion to suppress the evidence of Small’s robberies. The trial judge, a canny veteran of many years on the bench, was mystified by our maneuverings, but he quickly understood what was going on as we argued the admissibility of the robberies. The prosecutor argued they were irrelevant, and I argued that they proved Small was too drunk to premeditate a murder. I further announced that if the prosecution neglected to call any witness who heard Small confess, I would call the witness as a defense witness to further prove that Small was drunk out of his mind.
The judge was a no nonsense, common sense jurist who didn’t like to try cases where you could achieve a just resolution by plea bargaining. He made a few thinly veiled suggestions that the state should offer a second degree plea and ruled that he would allow me to offer all the evidence of intoxication that I wanted, including all of Small’s robberies and confessions. After the hearing, he called the prosecutor into his office for a private conference. It wasn’t long before the prosecutor came to me and told me he would take a plea to second degree murder, but Small had to plead guilty to all the robberies, too. That suited me fine, and I thought it would suit Small fine, too. It did.
While we were discussing the plea, the prosecutor said something that gave me food for thought. “I’d really like to put this case to a jury. I’m sure I could convince them to bring back a first degree murder verdict.” Now why would he say that? All he had to do was to refuse to take a second degree plea and he’d get his chance—unless the judge had told him something to the effect “If you don’t take a plea to second degree murder, I’ll reduce the charge down to second degree murder before I submit the case to the jury.” Of course, if that had happened, the judge would have been guilty of an improper ex parte communication with the prosecution, and I could have filed a motion to disqualify him from sitting on the case, but I don’t think it would have been in my client’s best interest if I had done so.
The judge sentenced Small to 50 years for the murder and 50 years for each robbery. Small behaved himself in prison and got paroled in nine years. He managed to stay out of trouble for four years before disaster struck. He got drunk, called up another judge on the telephone, and threatened to kill him. For some strange reason the Parole Board felt that his indiscretion was reason enough to revoke his parole. He has been in and out of prison ever since.