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Wednesday, July 16, 2014
TAXICAB CONFESSIONS
The old
Hamilton County Jail is a singular piece of architecture. At the very front of
the jail stands a three-story tower. At first glance you might mistake it for
a church steeple, but on a closer look you would know it was something more
ominous. The third floor of the tower has a huge picture window looking into an
empty room. The second floor looks almost exactly like the third. The first
floor of the tower has the door through which you enter the jail. The floor of
the third story has a trap door. Looking through the third floor window,
spectators could see the condemned prisoner standing on the trap door with a
rope around his neck. Through the window of the second floor, spectators could
see the dangling body of the prisoner after the trap door was sprung. According
to local legend, only one condemned man was ever hanged in the tower. In the
1970’s the old jail was still in use.
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.
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