In 1973, a parole violator named
Julian Kennedy sat in a Central Florida jail cell awaiting his return to
prison. Kennedy had managed to get himself hooked on drugs during his brief
stint of freedom, and he very much wanted a fix. He sent for the chief detective
of the sheriff’s office and made a proposition. “If I tell you about some
murders, will you get me some drugs?” Both Kennedy and the detective agree that
happened, but they diverged in their accounts of what happened next. Kennedy
said the detective fixed him up with drugs. The detective testified that he
told Kennedy “I can’t promise you anything.” He went on to say that Kennedy
replied, “Well, it’s worth a shot,” and then began confessing to murder after
murder. When Kennedy finished his story, he had confessed to 14 murders.
Upon his first release from prison,
Kennedy immediately jumped parole and began to wander about Georgia and
Florida. He supported himself by committing burglaries and robberies and the
occasional murder. He would kidnap women driving alone, he said, rape them and
kill them, and then dispose of their bodies in desolate wooded areas. Kennedy
may or may not have killed 14 women, but it is certain that he killed at least
one. A South Georgia lady went to the cemetery to leave flowers on a recently
deceased relative’s grave, and Kennedy saw her. He snatched her, put her back
in her own car, and drove to Lake City, where he raped and killed her.
Disposing of her body in a wooded area, he made his way south to an eventual
capture in Central Florida on a parole violation warrant.
The detective began contacting
local law enforcement in the various places where Kennedy said he had committed
murder, and that led him to Columbia County and Sheriff Harry Spradley. They
brought Kennedy to Lake City and he led them straight to the body of his
victim. It had been several months since the killing, and the searchers found
her skeleton, her clothing, and little else. Try as he might, Kennedy could not
seem to find the bodies of the other 13 women he claimed to have killed.
Milo Thomas, the Public Defender
for Lake City, warned Kennedy to quit talking to the police, and he warned the
police to quit talking to his client. Neither Kennedy nor the police heeded
Milo’s advice. The local investigator, Charlie Hollis, kept taking Kennedy out
of the jail and escorting him around North Florida looking for the bodies of
Kennedy’s other victims. At least Hollis was looking for dead bodies. I believe
Kennedy was looking for an opportunity to escape. Milo finally filed a motion
and got a court order to prevent further interviews with his client, and
Hollis’s expeditions with Kennedy ceased.
Milo filed two more motions—a
motion for a mental examination to see if Kennedy was crazy and a motion for
change of venue to escape the pervasive publicity being heaped on the case by
the local newspaper. It was Milo’s motion for a mental examination that proved
the catalyst for me getting assigned to my first murder case. Before I get into
that, though, I should probably explain why I, whose lifelong ambition was to
be a prosecutor, was working as an Assistant Public Defender.
When I graduated from law school, I
faced grim prospects for finding a job in my small hometown, but I resolved
that I wasn’t going to go anywhere else. If nothing else, I could simply hang
out my shingle and try to make my way as a rookie general practitioner. I had
no prospects of a job at the State Attorney’s Office; Randal Slaughter, the
State Attorney, had a policy of hiring only experienced part time assistants. I
found temporary work as a law clerk for a local law firm. They paid me minimum
wage, the same amount of money I once earned digging ditches for a construction
company. My wife Lane, an RN, was making the fabulous salary of $13,500.00 per
year working at the local VA hospital, so we weren’t going hungry. The law
partners talked to me about making me a full associate, but talking was all
they were doing. When I heard that Milo Thomas was looking to hire some full
time Assistant Public Defenders, I jumped at the chance.
My job interview with Milo turned
out to be one of the most unusual job interviews I ever had. I phoned his
office and was told that he could interview me that very evening at the home of
his friend, J. Fred Jones. I got directions and arrived at Jones’s house
shortly after sunset. Milo, Fred Jones, and I sat on Jones’s front porch
smoking cigars, sipping whiskey, and generally shooting the bull. I was
wondering when we were going to get around to the interview when Milo announced,
“Dekle, I like you. You’re hired.” In a somewhat surprised voice I asked,
“Don’t you want to hear about my qualifications?” Milo took a drag on his
stinky cigar and said, “Okay, tell me about your qualifications.” When I got
through reciting my academic record for him, he said, “Well, you haven’t said
anything that would make me change my mind. You’re still hired.” I started to
work the next morning earning the princely sum of $9,500 per year.
When I arrived at Milo’s office, we
filled out the paperwork and he showed me around the three rooms that comprised
the Public Defender’s Office for the Third Judicial Circuit of Florida. There
was the reception area, Milo’s office, and the law library. Milo said I could
camp out in the law library with the two other Assistant Public Defenders, and
that’s where I was sitting a few days later when Milo came into the library and
asked me if I wanted to work on a murder case. I said sure, and Milo sat down
to brief me.
“I filed this motion to have Julian
Kennedy examined and we’re waiting on the psychiatric examination. Kennedy told
one of the trustees down at the jail that he had a plan to make the insanity
defense work. He’s going to beat the Hell out of me the next time I go to
interview him. Of course the trustee was a snitch, so he told the Chief Jailer
and the Chief Jailer told me.” He didn’t need to say any more. I knew why he
had chosen me as his helper rather than one of the other two APD’s. They were
both well under six feet tall and well under 160 pounds. I was six feet, two
inches tall and weighed in at around 275 pounds, not all of which was fat.
The next day we went to interview
Kennedy. Milo’s investigator, Grover Lamar “Possum” Lee, tagged along, too.
“Poss” Lee wasn’t quite as big as me, but he was much more formidable. A former
professional football player and the veteran of many bar fights, Poss had
bulging muscles and the attitude of a man who knew he could handle himself in
any kind of physical altercation. When Poss shaved his head, it revealed a
network of scars lacing his scalp, souvenirs of those many bar fights. As a
matter of fact, Poss had not retired from fighting in bars. He once came to
court with an ugly abrasion across his cheek. I asked him “Poss, what in the world happened to you?”
Poss laughed and said “Leroy Tompkins slapped me with a gator, so I knocked his
breath out with the muzzle of my shotgun.” I wanted to know how in the world
you could slap somebody with an alligator. “It was just a little bitty gator,”
Poss said, “We caught it coming back from the cattle market yesterday evening
and we took it into Jay’s Restaurant and were chasing the customers around with
it. Jay asked us to leave, and Leroy didn’t want to go. I told Leroy we’d
better get going, and he took the gator by the neck and whipped it around and
slapped me up side the head with the gator’s tail. That was when I went to the
truck and got my shotgun.” I may not have believed the story if I hadn’t gotten
corroboration from the deputy sheriff who was called to the scene to quell the
disturbance.
Milo sat across the table from
Kennedy. I sat on Milo’s left, and Poss sat on his right. Kennedy behaved like
a perfect gentleman. He behaved so well that Milo excused Poss from attending
future meetings with Kennedy. Milo felt that I would be a sufficient deterrent
from that point forward. Milo decided that since I was going to be sitting
between him and Kennedy at the trial, I might as well do some legal research
for the trial. I welcomed the opportunity to do something more than being a
bodyguard.
I read all the reports and the
depositions taken in the case, and I thought I found something. I went to the
lawbooks and researched the issue to make sure that I wasn’t seeing things, and
my research confirmed my initial impression. The case had a fatal flaw. I
eagerly reported it to Milo. The only evidence tying Kennedy to the victim’s
body was his confession. Before a confession can be introduced into evidence,
the state must first prove corpus delicti. Contrary to popular belief, corpus delicti
is not the body of the victim—it is the body of the crime. Before you can
introduce a confession to crime into evidence, you first have to prove that a
crime was committed. The fatal flaw was in the medical examiner’s deposition.
He didn’t know how or why the victim died. She was just dead. He could rule out
any number of causes such as gunshot wound or automobile accident, but he could
not rule out accidental death, suicide, or even natural causes. The state
couldn’t prove corpus delicti without the confession, and they couldn’t
introduce the confession until after they had proven corpus delicti.
Milo was happy about my discovery,
but he threw some cold water on my enthusiasm. “I don’t care what the law
says,” Milo opined, “Judge Smith is going to let that confession into evidence.
If we win this case, we’re going to win it on appeal. We’ll just have to be
careful to make all the proper objections and preserve the record for appeal.
Do you want to argue the law to the judge when we get to that point?” I
certainly did.
Then we got some interesting mail—a
letter from the psychiatrists finding Kennedy sane and competent to stand
trial, and an order from the judge changing venue of the case to Naples,
Florida. I didn’t understand the order changing venue. Judge Smith hadn’t set
the motion for hearing or asked for any supplemental briefs, he had just
changed the venue without any input from us or the State Attorney. Milo
explained. “Naples has good deep sea fishing, and Judge Smith likes to fish.”
We arrived in Naples a day early to
familiarize ourselves with the courtroom and to prepare for the hearing on our
motion to suppress Kennedy’s confession. We would hear the motion first thing
in the morning and go directly into jury selection. We filed the motion to
suppress on the grounds that the confession was involuntary. We were going to
save the corpus delicti issue to raise during the trial. It had occurred to me
that because Kennedy was going through drug withdrawal when he confessed, the
confession might be held involuntary. And I had even found a case which could
be read to support my position. It was a case in which a man named Joe Reddish
had confessed to killing two men. Milo made the argument for the defense while
I sat between him and Kennedy. Judge Smith denied the motion. Other than
arguing the corpus delicti issue, my only job was to sit between Milo and
Kennedy and make sure Kennedy didn’t try to hurt Milo. I had never been that
close to a murder trial, and it was fascinating. Kennedy proved a nuisance,
however, by continuously tugging on my coat sleeve and whispering advice into
my ear. The advice was uniformly bad, and he became more and more agitated as
the day progressed. I was doing my best to make him understand why we couldn’t
do the things he wanted. During recesses when we could confer with Kennedy,
Milo didn’t make matters any better; he was quite brusque in answering
Kennedy’s questions. By the time we got to jury selection, Kennedy had had
enough. He stood up and announced that he wanted to fire Milo and get another
lawyer.
Judge Smith wanted to know what
lawyer Kennedy had in mind. Kennedy said that his family had hired a lawyer and
that the lawyer was going to be in Naples sometime this week. Kennedy wasn’t
exactly sure who the lawyer was or when the lawyer would arrive. Judge Smith
gave Kennedy a Hobson’s choice—he could have us as his lawyers or he could
represent himself. Kennedy chose us as his lawyers. The trial progressed, but
Kennedy was far from happy. Although capital cases require a jury of twelve, we
picked a six person jury. Although Kennedy was charged with First Degree
Murder, it wasn’t a capital case. Kennedy had timed his murder between the U.S.
Supreme Court’s ruling that the death penalty was unconstitutional as applied
and the Florida Legislature’s reinstatement of the penalty.
Eventually, we got a jury and the
prosecution made a brief opening statement. Milo reserved his right to make an
opening until beginning the presentation of the defense case. That meant he
would make no opening statement because we didn’t have a defense case. Opening
statements are a risky sort of a thing. Once you’ve made an opening, the jury
expects the evidence to bear it out. If the evidence is overwhelming and your
defense is to capitalize on the prosecution’s fumbles, you don’t want to commit
yourself to a story line. As things moved along and we got into the
presentation of the evidence, Kennedy became more restless. Milo did only
perfunctory cross examinations of most of the early witnesses, since they
merely mapped out the circumstances of the victim’s disappearance without
incriminating the defendant. I tried to explain Milo’s reasoning for the brief
cross examinations to Kennedy, but he was unconvinced.
Finally, the prosecution called the
medical examiner. Here was where Milo would shine as a cross examiner. Here was
where a careful cross would demolish the State’s attempts to prove a murder. The
prosecutor went through the preliminary questions and then began to explore the
ME’s qualifications. Milo stood and announced that the defense would stipulate
to the doctor’s qualifications. This was good tactical move. We were going to
depend on the ME’s testimony to establish that a murder couldn’t be proven. We
wanted the jury to know that we respected his opinions. Kennedy went ballistic.
Before he could make much of a
scene, Judge Smith had the jury hustled out and asked Kennedy what was the
problem. Kennedy unleashed a stream of invective castigating Milo as worse than
useless for a defense attorney. He wanted Milo fired on the spot and he wanted
the judge to give him a new lawyer. Judge Smith told Kennedy that Milo was a
fine lawyer, and that Kennedy wasn’t going to get any other lawyer than Milo.
Kennedy said if that was the best he could do for a lawyer, he’d rather defend
himself. Judge Smith said that he could certainly do that if he wanted to.
Kennedy wanted to defend himself. We were fired. We packed up our briefcases
and walked out the back door of the courtroom. I was disappointed that I wasn’t
going to get to make my brilliant legal argument about the necessity for proof
of corpus delicti before admitting a
confession into evidence.
Kennedy had torpedoed his case. He
wasn’t going to be able to do a proper cross examination of the medical
examiner, and the medical examiner wasn’t going to have to admit that he
couldn’t rule out accident, suicide, or natural causes. Worse yet, he wasn’t
going to make the corpus delicti objection when the state offered his
confession into evidence. Failure to prove corpus delicti before admitting a
confession is not fundamental error. You have to interpose an objection to
preserve the issue for appeal. Kennedy was sunk.
Milo and I killed the rest of the
afternoon seeing the sights in Naples, had a leisurely supper, and went back to
our hotel room to pack in preparation for leaving to go home the next morning.
We planned to sleep late, have a late breakfast, and hit the road around
10:00am. An early morning phone call wakened us and altered our plans. Milo answered
the phone and found Judge Smith on the line. He wanted us to come to the
courthouse as soon as possible, Kennedy wanted us back. We dressed and got to
the courthouse by midmorning to find that our client was gone. While waiting
for us to arrive, Kennedy had taken out a razorblade, which he had somehow
smuggled into his cell, and slashed his wrist. Upon being apprised of this turn
of events, Judge Smith ordered that Kennedy be taken to the emergency room and
sewed up without the benefit of anesthetics.
When Kennedy got back to the
courthouse, he had a bandage on his left arm and a rather sickly expression on
his face. We conferred with him, and he said he still wanted to defend himself,
but he wanted us there to give him advice when he asked for it. Milo told him
that there wasn’t much we could do at this point. The confession had come into
evidence and we hadn’t been there to object to it. Milo agreed, however, that
we would sit at counsel table with him and give him whatever advice we could.
We took our seats, and the jury
came in. I thought they were probably curious about what was going on in the
defense camp. When the trial began, there were three men sitting shoulder to
shoulder at the defense table, with Milo handling the conduct of the trial. Then
two of the men disappeared, and Kennedy was defending himself. Now, they come
back in and find three men again at the table, with a wide space between a
bandaged Kennedy and his two attorneys. But the attorneys were just sitting
there and Kennedy was still defending himself. The state had a few minor
witnesses to put on that morning, and then they rested. We recessed for lunch,
and Milo and I went in search of a
nearby restaurant.
When we got back after lunch, the
bailiff advised us that Kennedy had somehow smuggled drugs into his cell, and
had overdosed himself on them. When they checked his cell after lunch, they
found him lying semi-conscious on the cell floor. Judge Smith ordered that
Kennedy again be taken to the emergency room and that his stomach be pumped.
Within a couple of hours, Kennedy was back and was conscious. The trial
continued with final arguments—Kennedy had decided not to testify.
The prosecutor thought he saw a
weakness in his case that had eluded us, and he spent a long time in his
argument addressing the perceived weakness. First Degree Murder can be
committed in one of two ways—it can be committed with premeditation or it can
be an unpremeditated killing committed in the perpetration of certain felonies
(“felony murder”). At that time the applicable felonies were arson, rape,
robbery, burglary, the abominable and detestable crime against nature, and
kidnapping. Kennedy had obviously committed the murder during the course of a
kidnapping, but the indictment charged premeditated murder. At that time the
law in Florida provided that you could not charge felony murder and convict
with evidence of premeditated murder, you had to prove the underlying felony.
The prosecutor obviously thought that the opposite was also true—that you could
not charge premeditated murder and convict with evidence of felony murder. He
was mistaken. The law of Florida allows you to charge premeditated murder and
convict with evidence of felony murder on the theory that the commission of the
felony gives you “constructive” premeditation.
The prosecutor spent a lot of time
arguing that various facts about the crime showed premeditation, but the
argument was unconvincing. This gave us an opening. Since the prosecutor
thought the jury had to be convinced of premeditation and had argued that
theory to the jury, we could defend by pointing out the complete absence of any
real evidence of premeditation. We had a real shot at getting a Second Degree
Murder verdict if we could get the jury to realize that there was no evidence
of premeditation. We explained this to Kennedy, and told him that in his
argument he needed to zero in on the complete absence of evidence of
premeditation. He tried, but he made one statement that I think sealed his
fate. In arguing the absence of premeditation, he told the jury “I didn’t mean
to kill her, I just stuck her in the trunk and she must have suffocated.”
It didn’t take the jury long to
find Kennedy guilty, it didn’t take Judge Smith long to sentence him to life in
prison, and it didn’t take the appellate court long to affirm Kennedy’s
conviction. (See Kennedy v. State, 300 So.2d 909, 2nd DCA Fla. 1974).
It took Kennedy a long time to serve his sentence. He died in prison in 2010
after serving over 35 years for the murder, and the bodies of his 13 other
victims (if he really had 13 other victims) were never found.
