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.