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.
