The Lawyer's Lawyer

CHAPTER Thirty



The case management conference on Thomas Felton’s case was held in the courtroom in downtown Oakville at 9 a.m. on January thirty-first. Jack was present along with a lawyer from the attorney general’s office named Mitch Jurgensen, and ten reporters.

Normally this would have been an informal affair but with the reporters in attendance, Judge Holbrook felt the need to go through the motions. He rescheduled the hearing from his chambers to the courtroom, and at the appointed hour he walked into the courtroom wearing his robe after the bailiff gave the order “All rise!”

“You can be seated,” the judge said after sitting down. He was a good-looking man, probably in his early fifties, tall, with a full head of dark hair. Either he colored it or he was one of those rare people over fifty who did not have one gray hair on his head.

Judge Holbrook was a circuit judge in the northern part of the county. He had been chosen for this case on the theory that a judge from the northern part of the county would be fairer or would at least appear to be more fair than a judge who presided in Oakville where the murders had occurred. Jack, of course, didn’t buy it for a second. He thought the Florida Supreme Court should have appointed a judge from a county far removed from Oakville. Unfortunately, time didn’t permit filing a motion to get rid of the judge.

Jack had checked him out thoroughly, though. He wasn’t a great legal mind, but he wasn’t thought to be an ideologue either. Ideologues were the worst kind because they always knew what the truth was and what should be done rather than listening to the evidence and making a decision on the facts.

“Be simple and direct with him,” one lawyer told Jack. “If you start throwing case law at him and arguing complex legal issues, he’ll shut down.”

Jack had that advice in mind when the judge called on him to begin the proceedings. He also had a court reporter to transcribe everything that was said. And if the judge allowed him, he was prepared to make some statements in open court that would send the press corps into a frenzy. If Jack could have his say, what happened in this case was definitely going to see the light of day.

Judge Holbrook unwittingly became a willing participant in Jack’s plan.

“This is a case management conference in the case of State of Florida v. Thomas Felton. A death warrant has been signed in Mr. Felton’s case. He is scheduled to be executed on March fourteenth, approximately six weeks from today, and this proceeding is to determine if there are any further motions or appeals that counsel for Mr. Felton plans on filing. Mr. Tobin, are you here representing Mr. Felton?”

“Yes, Your Honor.”

“And who is representing the State?”

“I am, Your Honor. Mitch Jurgensen from the attorney general’s office.”



Jack had been back to see Felton one last time before making his decision to take the case and came away from that meeting as confused as he was after the first meeting.

“He doesn’t act guilty, but I just don’t know,” he told Henry.

“I don’t know what to tell you, Jack. With these facts, though, it’s hard to let the man just be taken like a lamb to slaughter.”

“I guess you’re right, Henry. Now that I’ve seen what I’ve seen, I guess I can’t stay silent.”

“Okay, Mr. Tobin,” Judge Holbrook said. “You know the drill. This hearing is for your client’s benefit. Do you have any post-conviction motions that you intend to file?”

“Yes, Your Honor. As a matter of fact, I have a motion with me. It’s a motion for an evidentiary hearing and a new trial.”

Jack handed the motion to the judge and gave a copy to Mitch Jurgensen.

Judge Holbrook didn’t even glance at the written motion. He saw the reporters out there behind the bar whispering among themselves. He knew they were just chomping at the bit to find out what was in the motion. On the spur of the moment, he decided to give them something.

“We’ve got some time, Mr. Tobin. Why don’t you tell us about this motion.”

“Yes, Your Honor. I have attached to the motion the coroner’s reports on both murders. They were never admitted into evidence at the trial because the coroner testified in person, but he specifically stated that he was using his reports to refresh his recollection, and the record is clear that he had them in his hand when he was testifying.

“I also have attached to the motion pictures that I recently took of the knife that was admitted into evidence as the murder weapon. It’s a bowie knife—a large bowie knife. As you can see from the pictures, I have a tape measure that measures the width of the knife at certain points and the length of the knife. I have also attached the transcript of the trial testimony in which the knife was referred to as the murder weapon. It is interesting, Your Honor, that the coroner never identified the knife as the murder weapon, and I have attached his testimony as well. One of the police officers who testified is the only person who identified the knife as the murder weapon. The coroner testified first, and he was long gone when that police officer took the stand—”

“And your point is, Mr. Tobin?” The judge was getting frustrated, but that’s where Jack wanted him to be—focused on the bottom line. Not just yet though.

“The public defender should have objected to the police officer’s testifying about the bowie knife being the murder weapon. The officer was not qualified to give that testimony.”

“Ineffectiveness of counsel was raised in the first appeal, Mr. Tobin. Are you really arguing that your client is entitled to an evidentiary hearing because the public defender failed to make a technical objection? Because if you are, I’m ready to rule on that issue right now.”

Now was the time. The judge was ready and so were the members of his audience.

“No, sir, I’m arguing that the knife the police officer identified as the murder weapon was not the murder weapon and could not possibly have been the murder weapon.”

That got the peanut gallery stirring. Judge Holbrook banged his gavel.

“If you people can’t be quiet, I’ll have you removed. Now, Mr. Tobin, how do you arrive at this seemingly outlandish conclusion? And for the record, I am not categorizing the evidence before I hear it. I only refer to the conclusion as outlandish because Mr. Felton has been through one appeal, has been on death row for ten years, and is scheduled to be executed in six weeks.”

“I agree with you, Your Honor. It is outlandish and outrageous and whatever else you want to call it, but that doesn’t make it any less true.”

“And what is your basis for the statement you made?”

“Your Honor, if you would open the coroner’s report on the deceased, Vanessa Brock, to page three—”

Mitch Jurgensen finally woke up.

“I object, Your Honor. This is not an evidentiary hearing, and the coroner’s reports are not evidence. They are hearsay.”

“I understand that, Mr. Jurgensen. I’m not taking testimony or admitting evidence. I’m just hearing argument, trying to get a feel for where Mr. Tobin is going in his motion. Proceed, Mr. Tobin.”

“Yes, Your Honor. If you’ll look at the second sentence of paragraph two. It reads, ‘The entry wound is approximately one-quarter inch wide at each entry point and extends into the body approximately three and a half inches again at each entry point.’

“And if you look at my measurements of the so-called murder weapon, the bowie knife, even at its narrowest point, is more than a quarter inch in width. At three and a half inches in length, which was the stated penetration in the coroner’s report, the bowie knife is two inches wide. Thus, if the bowie knife was the murder weapon, the entry wound would have been two inches in length.”

Jack watched the judge’s reaction. The man immediately started to fidget. His arms were moving, his shoulders were moving, his head and neck were moving—all in different directions. He looked like an old vaudeville comedian pretending to be drunk or afflicted with some rare disease. Those involuntary movements told Jack all he needed to know: Judge Holbrook was not a dispassionate, disinterested third party.

“There must be some mistake here, Mr. Tobin. Maybe it’s a typographical error. That happens sometimes. The coroner will probably be able to explain all this as he would need to testify for you to get this document in.”

“The coroner is dead, Your Honor. Perhaps there are contemporaneous notes he took at the time of the autopsy. Otherwise, this is the only record. And I ask Your Honor to take a look at the autopsy report of the deceased, Peter Diaz. On page two, paragraph four, you will see the same description of the entry wound. It is highly unlikely that a mistake would be made in both autopsy reports.”

Several members of the press corps had already hightailed it for the exit, determined to get a leg up on everybody else. The majority stayed, however, eager to hear the State’s response and to observe any further reactions from the judge.

“Mr. Jurgensen,” the judge asked, “do you have any response to these allegations?”

Mitch Jurgensen wasn’t born yesterday. Even though he had reviewed the file thoroughly before the hearing, he had not picked up on the discrepancies Jack had noted. This was not the time to respond, however.

“Your Honor, I have only glanced at this motion. I will need time to go through it in great detail before I comment. However, I assure the court that there must be a reasonable explanation.”

Judge Holbrook didn’t follow Mitch Jurgensen’s cue to shut up. He prattled on for the benefit of the reporters.

“Mr. Tobin, if I’m hearing you correctly, you are basically saying that the state attorney, the coroner, and the police department conspired to convict your client. Now that is quite an accusation.”

“I have never made that accusation, Your Honor. I’m merely stating the facts: The weapon identified by the police officer could not have been the murder weapon identified in the coroner’s reports—period. I did point out that the coroner testified first and did not identify the murder weapon. The police officer did. It is difficult to believe that the coroner did not know that the physical evidence did not support the charge of murder against my client. It is also difficult to believe that the coroner did not tell the prosecutor. The way the evidence was presented, with the coroner going first and discussing his report but never identifying the bowie knife as the murder weapon, suggests very strongly that they did have that discussion. In any event, based on this evidence, my client should be granted a new trial although I don’t know what a new trial would do at this point.”

“Suppose I decide that the facts in your motion require me to set an evidentiary hearing. Do you intend to call anybody as a witness, Mr. Tobin?”

“I intend to call somebody from the coroner’s office to verify the reports and to let the court know if there were any other contemporaneous notes made at the time of the autopsies. And I intend to call the police officer who identified the bowie knife as the murder weapon. I will have the knife here as well, Your Honor. I don’t think my portion of the hearing will take more than two hours.”

“What is that police officer’s name, Mr. Tobin? Do you know?”

“Yes, Your Honor. His name is Sam Jeffries.”

“Police Chief Jeffries?”

“Yes. He was the head of the task force at the time, and he found the weapon in the woods outside the apartment complex where Vanessa Brock and Peter Diaz were killed.”

That was enough for the rest of the reporters. They all left in a hurry. It was like a stampede, causing the judge to pause the proceedings for a moment to watch them go.

“How about you, Mr. Jurgensen? How much time would you need?”

“I’d need at least two hours, Your Honor, since I have no idea what witnesses I’m going to call. However, I do object to an evidentiary hearing.”

“I’m sure you do, Mr. Jurgensen, but I think Mr. Tobin has set out enough facts to warrant a hearing. I’ll give you both the whole day. Now when are we going to schedule this? We’ve got approximately six weeks before the execution, but we need to leave time for an appeal to the Florida Supreme Court.”

“I’ll need at least two weeks,” Mitch Jurgensen said.

“Is that okay with you, Mr. Tobin?”

“I’d like it sooner, Your Honor.”

“Mr. Tobin, I’m sure Mr. Jurgensen has other matters to attend to as a public servant. I think two weeks is a reasonable time.”

Mr. Jurgensen may have other matters to attend to, Jack wanted to say, but my client only has six weeks to live. However, he didn’t say anything. There was no point in making the judge angry at this stage of the proceedings.

“That’s fine, Your Honor.”

“Okay, how about February fourteenth, Valentine’s Day? If we start at nine, we should have plenty of time. I will rule at the end of the hearing and I assure you my written order will go to the Florida Supreme Court that day, which will give you and your client a month to appeal, Mr. Tobin.”

“That’s fine, Your Honor.”

“Mr. Jurgensen?”

“That’s good for me, too, Your Honor.”

“See you then, gentlemen.”