Sunday, November 27, 2011


Joe Paterno's reputation as a squeaky clean football coach took a hit with the mess at Penn State over the allegations of sexual abuse against Jerry Sandusky. There seems to be a great deal of indignation over what Paterno didn't do and what the complainers think they would have done.

As a prosecutor with over 20 years of intense experience investigating and prosecuting child sex abuse allegations, I think I have some insight into the situation. I have seen all sorts of reactions from people who were given reason to suspect that close associates may have been involved in child sex abuse. The least frequent reaction from people finding themselves in such a situation was to march directly to the police and report the matter. The most frequent reaction was some variation of the ostrich who stuck his head in the sand.

I'm not excusing what Paterno did, I'm just pointing out that he did what most people confronted with the situation would have done. There are any number of reasons that people react this way instead of doing what everybody thinks they would do if they were confronted with the situation. One, but definitely not the only, reason is that the non-reporter knows and has affection for the suspected abuser and cannot bring himself to believe that the suspect could be capable of such an act. The non-reporter thinks either that it didn't happen or that it was a one-time aberration which will never happen again. As the great American philosopher Mark Twain once said, "Denial is not just a river in Egypt."

Child molesters seldom look like the pervert from Central Casting. They usually look and act normal, and they have a knack for instilling trust in those around them. In other words, they are almost undetectable until after they have struck. And they strike many times before they fall under suspicion. And they fall under suspicion many times before they are suspected by someone who doesn't sail on "Denial."And tragic situations like the one at Penn State will continue to occur until Judgment Day. My wife says I am overly cynical, but that is an occupational hazard for prosecutors.

We cannot prevent child abuse from occurring, but we can minimize it by exercising constant vigilance, immediately reporting situations when they come to our attention, and cooperating with the authorities in the resulting prosecutions.

Friday, October 28, 2011


“What do you want to be when you grow up?” It seems that grownups had a penchant for asking me that question when I was a boy living in the small town of Lake Butler. I gave various answers—a fireman, a policeman, a doctor, even an astronaut. I didn’t say “astronaut,” though. I said “spaceman.” The term “astronaut” hadn’t been invented yet. It never occurred to me that I might like to be a lawyer. That all changed when I was in the seventh grade at Union County High School. My father, who worked part time as a deputy sheriff, had received a summons for jury duty. I heard him talking about the case he had been called for, and it sounded interesting. A deputy sheriff and a “ride along” civilian had been shot to death trying to arrest a man named Joe Reddish. Of course, no defense lawyer in his right mind would allow Dad to sit on the jury, and he was promptly excused from service.

The whole school was talking about the sensational trial, and large numbers of students were skipping school to go fill the galleries of the courtroom and watch the trial. I wanted to go, too, but Momma was a schoolteacher and she frowned on missing school. I tried to enlist Dad’s aid in talking Momma into letting me go, but he said that there wasn’t anything happening in court that would be interesting to watch. Dad said that final arguments were what I needed to see. He said that one of the best lawyers in the state was defending Reddish, and the lawyer was a great speaker. He said I could go to court the day that they made their final arguments. Momma didn’t really like the idea, but when he put his foot down, she usually went along with him.

As the trial dragged on, more and more students missed school, and the principal got irritated with the situation. He announced that there would be no more excused absences for kids who went to the trial. I complained to Dad that I had lost my chance, but he assured me that I would get to see the final arguments no matter what the principal said. “You let me worry about the principal. I’ll make it right with him.” He could be very persuasive when he wanted to be.

After a week of waiting, the big day came. They were going to have final arguments that day, and I was going to see them. Dad was working security at the trial, so he took me down to the courthouse very early that morning and parked me on the front row in the courtroom. “You stay there, now,” he said, “I’ve got to work.” He walked off and I was all alone in the huge courtroom. It wasn’t long before the courtroom started filling up. The lawyers came in and set up at their tables, the clerk and court reporter came in, and spectators started straggling in and claiming what they thought were good seats. I had the best seat because Dad had gotten me there so early. A deputy brought the defendant in, took off his handcuffs, and directed him to sit at the defense table. After everyone had assembled, the bailiff came in and announced in a booming voice “Oyez, oyez, oyez, the Circuit Court for the Eighth Judicial Circuit, is now in session with the Honorable John H. Murphree presiding. All rise.”  We stood as the judge, wearing his black robe, marched into the courtroom and took his seat on the bench. He looked like a man you didn’t want to trifle with.

After tending to a few preliminary matters, they brought the jury in and seated them in the box. Judge Murphree explained to the jury that the lawyers were now going to argue their cases. He cautioned the jury that what the lawyers said wasn’t evidence, but they should listen carefully because it would help them to evaluate the evidence that they had heard. When he finished, he turned to the State’s table and asked if the State was ready. They were.  Mack Futch, the Assistant State Attorney, went to the lectern and mapped out the State’s case. He was like a good schoolteacher, going over everything about the case and explaining things so that even I, a seventh grader, could understand the evidence. By the time Futch finished and took his seat I was convinced. Reddish was guilty.

Then it was the turn of the best trial lawyer in North Florida. Sigsby Scruggs marched up to the lectern and began to speak. Where Futch had been the jury’s helpful teacher, Scruggs approached the jury as a friend. He made jokes and the jury laughed. He turned somber and the jury became serious. He raised his voice to rattle the windows and he lowered it to a whisper, and the jury hung on every word. He went through every particle of evidence, finding fault wherever he looked. Some of the mistakes the police had made were humorous, some were tragic, but they all muddied the case so badly that there was no way that the jury could possibly vote to find Reddish guilty. Scruggs’ voice was so intoxicating, his cadences so lyrical, and his arguments so persuasive that he completely won me over. Reddish might be guilty, but there was no way that the State had proved the case beyond a reasonable doubt. In a 32 year career as a criminal trial lawyer, I only heard one other lawyer who ever approached Scruggs’ eloquence that day.

When Scruggs finished it came the turn of the elected State Attorney to speak. Ted Duncan was something of a legend himself. There is a story that once, when Duncan cross-examined a moonshiner, he asked the moonshiner “Isn’t it a fact that you sold whisky to the undercover officer?” The moonshiner replied, “Yes, I did. And I’ve sold you some, too.” Duncan didn’t miss a beat, “And I paid you for it, too, didn’t I?” Futch had been the clear expositor and Scruggs the eloquent orator, but Duncan was the Pentecostal preacher. He made as fiery a speech as I’ve ever heard, and if he had made it at a tent revival, there would certainly have been scores of conversions. He converted me. I voted guilty, an assessment which would later be confirmed by the jury's verdict. When Duncan finished, the judge recessed for a late lunch. Court had begun at 9:00 sharp and final arguments had gone to mid-afternoon, and I had sat unmoving the entire time. Dad took me home during the lunch break. I wanted to stay, but he told me that the next thing they were going to do was to instruct the jury, and jury instructions were dreadfully boring. Dad wanted to know what I had thought about the trial. I told him I wanted to be a lawyer, and I wanted to be a trial lawyer, and I wanted to be a State Attorney. Dad told me that he had spoken to Ted Duncan about my ambition. I was somewhat embarrassed, but Dad said that he and Duncan were old friends. In fact, Dad said, when Duncan was a very young lawyer, his first jury trial was to defend one of my uncles on a battery charge. I asked if Mr. Duncan got Uncle Romey off, and Dad said “Of course. He once convinced a judge that a mullet wasn’t a fish because it had a gizzard and only birds had gizzards.” Dad told me that Duncan had sent me a message—when I got out of law school I should come see him, I would have a job. I never got to work for Ted Duncan. He retired as State Attorney while I was still in undergraduate school, and when he retired, he was known as the dean of American prosecutors.

Wednesday, October 26, 2011


I try to have as many guest speakers in my prosecution clinic class as possible. They give the class something that was almost entirely lacking when I was in law school--insight into the real world practice of law. I choose speakers carefully, only asking those whom I believe to be top notch in their profession. Last night I was visited by Heather Jones, the misdemeanor division chief in the Gainesville State Attorney's Office, and she spoke on the topic of prosecuting domestic violence cases. I try to show my appreciation to my speakers in a number of different ways. One way is to present them with a copy of one of my books. I gave Ms. Jones a copy of "The Last Murder," and this morning I received the following email from her:

"Well, before you can appreciate the magnitude of what I am about to say, you need to know a few things about me that I suspect you don’t already know.

"First, I don’t read for pleasure.  Law School and the practice of law beat out of me every impulse to read.  At most, I will flip through fashion magazines.  If those magazines have an article more than a page or two in length, I generally just read the first or second sentence in each paragraph so that I get the gist.  Second, I go to bed early.  I usually am in bed by 8 and asleep by 9.  There are few things on this planet important enough for me to stay up late.  Sitting at my computer right now, I can hardly think of one.  Finally, I don’t like murder movies or murder TV shows.  I don’t like them as fiction or non-fiction.  I like happy stories, stories about romance (not books, though, see point number 1 above).  When I was a kid, my mom read all sorts of biographies and stories about serial killers.  I can remember her reading 'The Stranger Beside Me' and Anne Rules’ other books.  I thought she was crazy.

"When you gave me your book last night, I was excited.  I was excited for you that you had written a book, I was excited that you were kind enough to give me a signed copy, but I didn’t think I would read it (refer to rules 1 and 3 above).  Last night, I got into bed and read the acknowledgements and the jacket of your book.  I told my husband the story of you giving it to me and even statused about it on Facebook.  (Yes, status in this context is a verb).  Before I knew it, it was 1a.m.  I was up WAY past my bedtime.  I was 9 chapters into a story about a murder committed by the most notorious serial killer of my lifetime.  In one evening, your book had me break 3 hard and fast rules in my life. 

"I tell you all of that to tell you that your book is terrific.  It is so very interesting to me as a prosecutor.  I will suggest to all the young prosecutors I supervise that they read it.  I would actually like to buy another copy for my mother (yes, the crazy lady referenced under the rule section of my email).  Can I buy it from you?  Can I be so bold as to ask you to sign a copy for her?  She would love that and her birthday is coming up!!"

Quite naturally, I was flattered. Her email told me that the book could fulfill one of the objectives I had for writing it--to help young prosecutors find their way through the prosecution of a complex high-profile case. I replied:

"I think the reason this book didn’t meet your expectations is because it is not about Ted Bundy. It’s about the prosecution of [insert celebrity killer] and the problems confronted by both prosecution and defense. I’m researching for a book on the Lindbergh kidnapping right now, and the parallels between that case and the Bundy case are striking."

 On another subject, I had no idea that "status" was a verb. I must be a real fossil.

Monday, October 24, 2011


Sometime late in my career as a prosecutor, I came up with the Vowel Theory, a shorthand method of deciding which defendants were worthy of the death penalty. Under the Vowel Theory, you should not seek the death penalty against someone unless you have all the vowels.

A: Atrocious Crime. But aren't all murders atrocious? Yes, but in order to have a sustainable death penalty, the crime has to be off the Richter Scale of atrociousness. It has to be unimaginably wicked. Dousing someone with kerosene and setting  match to him would qualify. Shooting someone once in the chest probably would not.

E: Egregious Fact Pattern: Not only must the crime itself be atrocious, the circumstances surrounding it must be horrific. If our kerosene dousing defendant belonged to a terrorist cell and did the crime in furtherance of his terrorist agenda, it would be egregious. If he was mentally ill and acting out on some insane delusion, it wouldn't.

I: Innocent Victim: Often victims engage in conduct which contributes to their demise. I've had several murder cases where the victim told the defendant "You don't have guts enough to shoot me." This tactic seems to work much better on television than it does in real life. Anyhow, such a victim is not likely to be an innocent victim.

O: Odious Defendant: The defendant has to be a really bad person, not someone driven to a one-time crime by emotion.

U: Undeniable Guilt: Simple proof of guilt beyond a reasonable doubt is not sufficient. You have to be able to prove guilt beyond beyond a reasonable doubt.

The cost in time, energy, effort, and money required to get someone executed is astronomical. The death penalty should be reserved for only the most unspeakably evil. I'm not saying that only the most unspeakably evil deserve the death penalty. I'm saying that society can't afford to execute everyone who deserves it.

Saturday, October 1, 2011

On Calling Them Like You See Them, Part 2

I've always felt some sympathy for Pontius Pilate. When Caiaphas sent Jesus before him, he found himself in a situation I've been in many times. An angry complainant wants you to take criminal action against someone, and you don't think it's a wise idea. You resist the urgings of the complainant, and the complainant becomes more strident.

The things Jesus' accusers said to Pilate are still being said today. "If he were not a wrongdoer, we would not have brought him before you" sounds very much like "If he wasn't guilty, I wouldn't have arrested him."

When the accuser begins to think that he is not going to be able to cajole you into acting, he begins to threaten. "If you let this man go, you are no friend of Caesar." It is not clear in translation, but they were threatening to report him to Tiberius Caesar, who may well have executed Pilate for failing to crucify a would-be king. I have heard similar threats: "If you don't file charges, I'm going to the Governor!" I used to carry the telephone number for the governor's office in my billfold so that I could provide it to the complainant when the conversation deteriorated to that point. Of course, there was no danger of the governor killing me, or even firing me.

It takes a certain amount of moxie to say "No." It takes considerable courage to say "No" when the answer may cost your life, or even your job. Few of us have that kind of courage. Judge James E. Horton, who was voted out of office because he dismissed the case against the last Scottsboro Boy, had that kind of courage.

Sunday, September 25, 2011

On Calling Them Like You See Them

Sometimes it is very easy to be swept away by emotion. Sometimes it is very easy to make decisions based on desire rather than evidence. As a prosecutor, you can't make decisions based on what ought to be. You must base them on what is. When those who are swept up in the emotion of an event clamor for a certain outcome, you must have the gumption to make the right decision, not the popular one. Even though no one else will admit the Emperor has no clothes, you must speak the naked truth as you see it.

This means you will file charges against popular people and decline to file charges against unpopular people. This means that when you charge, you will be criticized for charging too much or too little. Regardless of political expediency, you must do what is right.

Thursday, September 22, 2011

On Troy Davis's Execution

Several months ago, a friend tried to interest me in advocating for Troy Davis as being wrongfully convicted of murder. I got some information from my friend and did a little research on my own. Nothing about the case indicated to me that Davis was innocent. The postconviction motion alleged that seven witnesses had recanted their testimony, and a hearing was held to allow proper proof that the witnesses recanted. At the hearing, you would expect that those seven witnesses would have marched in succession to the stand and stated under oath that they were wrong when they testified to facts which incriminated Davis. None of the witnesses testified. The defense called no witnesses at all.

Articles reporting this development suggested Davis' attorney was incompetent for not calling the witnesses. It seemed obvious to me what was going on. Davis' attorney didn't call the witnesses because they would not recant their testimony.

The media seems to have confused allegations with proof. The motion and supporting affidavits made an allegation that the witnesses recanted, but they were not sufficient judicial proof that the witnesses recanted. The motion simply formed the basis for a hearing to determine whether the witnesses recanted. At the hearing, the defense failed to prove the allegations in the motion. No recantation. No evidence of innocence. Case closed.

I tried to point out to my friend that motions aren't proof and that the burden of proof at this stage of the proceedings was on the defendant, not the state. The defense failed to carry their burden, and the law moved forward.

Was it possible that Davis was innocent? In human affairs, there is always room for doubt. Almost nothing can be proven beyond all doubt.

Was Davis proven guilty beyond a reasonable doubt? It certainly appears that he was. That is the standard of proof which we have lived by for over two centuries, and it was met in this case.

Was it lawful to execute Davis? Yes.

Was it just to execute Davis? You could make many strong arguments against the imposition of the death penalty on anyone condemned to death, but there was no basis for making an argument that Davis should be spared because he was innocent.

Thursday, September 15, 2011

Why Don't You Write a Book? / Why in the World Did You Write that Book??

Reflections on "The Last Murder: The Investigation, Prosecution, and Execution of Ted Bundy"

Prosecutors accumulate wealth, but not in the form of money. They accumulate a wealth of stories, and when they get together, they like to swap those stories. Over the years, I have told the stories associated with the prosecution of Ted Bundy hundreds, if not thousands, of times. Almost invariably, someone would ask me "Why don't you write a book?"

I gave any number of reasons for not writing: I'm not a writer. I'm too busy. I [insert rationale of your choice]. And each of those reasons had some weight. The weightiest reason, however, was simply that it was too painful. Telling anecdotes about amusing incidents during the investigation and trial was one thing. Confronting the pathos of the crime was something else entirely.

Finally, after the passage of three decades, I decided to write the book. Enough time had passed that the bad memories weren't as painful--or so I thought. As I soon realized, the memories were still painful, I just hadn't dwelt on them in a very long time. Some chapters of the book were so painful to write that I had to put away the project and take long breaks. Inevitably, after the passage of weeks or months, I would go back to writing. Some of the men and women involved in the case who have read the book tell me they had similar experiences reading it--they would have to stop and take breaks from the awful memories before continuing to read.

I continued to write, and I began to shop the book to various academic publishers. Trying to get a publisher to agree to print your book can be tedious, but I kept at it. Then came the day when Praeger said they would publish the book if I could hold it under 90,000 words including endnotes and bibliography. When I got the news, I had written 120,000 words (not counting endnotes and bibliography) and still had three chapters to go. Those final three chapters collapsed into one, and I took a red pencil to the manuscript, mercilessly cutting as much as I could and still tell a coherent story. The book was still too long. I went back to Praeger and explained my difficulty, and they said they'd accept a longer book, but they'd have to charge $10.00 more per copy if I exceeded 100,000 words. I suggested dropping the endnotes and bibliography as a method of cost cutting, but they vetoed the omission of endnotes. I did get them to agree to omit the bibliography by promising to use long form endnotes. Finally, I got the wordcount under 100,000 and the cost of the book under $50.00. I had to leave out a number of interesting and informative incidents, but I got the story told with brevity and clarity.

When news got around that the book was going to be published, something unexpected happened. People quit asking me why didn't I write a book and began asking "Why in the world did you write that book?" "What can you add to a story that has been so well told by professional writers?" "You're just in it to make a fast buck, aren't you?" They asked other questions of a similar nature, but those were the three main ones. I'd like to answer them in reverse order.

You're just in it to make a fast buck, aren't you? No. The time to make money off of a book about a crime is right after it happens, when the story is still current in the media. If money were the object, I would have written the book 25 years ago; I would have suggested the story to a lurid true crime publisher, not an academic publisher; I would have talked Praeger into publishing the 150,000 word book that I intended to write.

What can you add to a story that has been so well told by professional writers? The professional writers all told the story of the "glamorous" celebrity slayer and media figure, Theodore Robert Bundy. The least "glamorous" of his killings was his last one, and the professional writers gave it short shrift in their stories about the "charismatic" serial killer. My story isn't about Bundy. My story is about an unglamorous investigative and prosecutive effort to seek justice for one innocent victim of a brutal slaying. It's about a group of unsung heroes and heroines in law enforcement who worked tirelessly to rid the world of a cancer.

Why in the world did you write that book? My main reasons were: (1). It's a good story. Even a poor storyteller would have a hard time making it a bad story. (2). It's an educational story. The best way to learn from mistakes is to learn from the mistakes of others. We made a lot of mistakes in the investigation and prosecution, and I have tried to give a non-judgmental documentation of those mistakes so that investigators and prosecutors reading the book will be able to avoid those mistakes in the future. (3). I also thought somebody ought to do something to demythologize Ted Bundy. Judge Cowart was right on point when he said Bundy was a "miserable waste of humanity." In the book, I try to emphasize those facts which bolster Cowart's assessment.

Wednesday, September 14, 2011

The Four Questions Every Prosecutor Should Ask

Being a prosecutor is about making decisions--life changing decisions. That young man who got arrested last night has his fate in your hands. Will he be able to enlist in the military? Can he go to college and pursue a profession? Or is he going to spend the next few years as a guest of the state? You will have a huge say in how he spends the rest of his life. It's not within us to make perfect decisions every time, but we can always strive to make the best possible decisions under the circumstances.

When you look at that file, ask yourself four questions:
1. Has a crime been committed? Not every wrong is a crime.
2. Did the defendant commit it? Never, ever rubberstamp the decisions of others. Perform your own evaluation of the available evidence.
3. Can you prove it? There is a wide gap between knowing someone committed a crime and being able to prove it beyond a reasonable doubt. You should never file a case unless you have a reasonable prospect of conviction.
4. Is the case worthy of prosecution? Although a defendant may be guilty of a breach of the law, and although you have a reasonable prospect of convicting him, sometimes justice is better served if you decline to prosecute. Every unconsented touching is a battery, but it would be silly to prosecute every person who ever laid his hands on another without first getting a written consent form.

There are other questions you should ask before filing charges, but these four are foundational.