The Lawyer's Lawyer

CHAPTER Thirty-Three



Two weeks later Jack was standing in the well of the Florida Supreme Court. The well was the area where the lawyers stood to face the court, seven judges who were on an elevated dais above them. Behind them was the gallery where the dark mahogany benches were gradually elevated like stadium bleachers though not as steep. The well was the lowest point in the courtroom—thus the name.

It was not a typical courtroom. It was the highest appellate court in the state of Florida. Such courtrooms were designed specifically for appellate arguments with an elevated dais for the judges, tables for the lawyers directly below the judges, a podium between the tables where the lawyers stood to face the court and present their arguments, and a huge gallery to accommodate hundreds of interested observers who almost never showed up. Appellate arguments were boring although today there were about forty people in the gallery, most of them reporters.

Jack had been to the court many times and in recent years it had all been on death row cases. He was not intimidated by the pomp and circumstance. The bailiff came out first. “All rise!” he said in a wonderful, deep voice. “Hear ye, hear ye, hear ye: The Supreme Court of the State of Florida is now in session. All those who have grievances before this court may now come forth and be heard.”

Everyone in the courtroom stood up and the seven judges paraded out in their black robes and sat on their individual seats above the lawyers. Jack hardly noticed. He was there to save a man’s life. In fact, he hoped the judges were aggressive and inundated him with a barrage of questions. “If they don’t ask questions, they’re not interested,” he’d told Henry before he left for Tallahassee.

Nor was he affected by the bevy of reporters and cameras set up outside the courtroom. This case had gained national and international attention after the disclosure that the coroner and the prosecutor might have hidden evidence. It was a serious matter and worthy of the attention, but Jack knew that the reporters were leaning very heavily on the drama side—the serial killer, the powers of the state lined up against him, and the possibility of future mayhem. Now that was news!

Jack had walked right by the cameras.

“Mr. Tobin, do you have a moment—”

“No comment.”

“Mr. Tobin—”

“No comment.”

He’d never raised his voice. He’d never looked toward the camera. He’d simply kept moving.

Inside the courtroom, his demeanor was quite different. He was more than eager to respond to the justices’ questions.

“Do you know what you’re saying in here, Mr. Tobin? You’re saying that the police and the prosecutor were all involved in one big conspiracy,” Chief Justice Robert Walker said. It was the same question/statement Judge Holbrook had posed weeks before.

“No, Your Honor, I’m saying that the weapon found outside the premises where the victims resided and were murdered could not be the murder weapon based on the findings contained in the coroner’s reports.”

Jack knew they might need to connect those dots eventually. The standard on appeal of a death penalty case was newly discovered evidence and he could not meet that standard. The public defender had the coroner’s reports and should have seen the discrepancy between the reports and the physical evidence. His only fallback then would be prosecutorial misconduct under Brady v. Maryland. Still, he didn’t want to go there yet. He wanted the justices to lead him there. It was a dangerous tactic and Thomas Felton’s life hung in the balance.

“It’s inconceivable to me that the police, the coroner, and the prosecuting attorney did not see the disconnect between the murder weapon and the coroner’s findings,” Justice Juan Escarrez opined. He was a conservative and a key vote.

“I agree with you, Your Honor, at least as to the coroner and the prosecutor. The police officer, Sam Jeffries, who was actually the head of the task force, testified that he believed the bowie knife he found was the murder weapon. He was not at the autopsy and he never read the autopsy report. I have no evidence to quarrel with that testimony. The coroner, however, had to know about the discrepancy between the physical evidence and his findings. And I believe it is a reasonable inference that the prosecuting attorney knew since she never asked the coroner at trial if the bowie knife was the murder weapon, and she positioned his testimony in such a way that he was long gone when Captain Jeffries opined that it was.”

“So you believe this is a Brady v. Maryland situation?” Justice Ray Blackwell, the newest member of the court, asked.

“Yes, sir. Brady held that if a prosecutor withholds material evidence, whether innocently or not, that is grounds for a new trial.”

“But the evidence was not withheld. It was right there for the public defender to see. He had the coroner’s reports and he had access to the murder weapon just as you did, Mr. Tobin.”

“That’s true, Your Honor, but he did not appreciate the discrepancy in the evidence. Should a man be put to death because the state attorney and the coroner succeeded in putting one over on the public defender? I don’t think that’s what Brady stands for.”

For his part, Mitch Jurgensen kept hammering away on the fact that the report could have been mistaken.

“It was the coroner’s testimony combined with Captain Jeffries’s testimony along with the other evidence in the case that caused the jury to convict. This court should not go behind that decision.”

“Even when we know this was not the murder weapon?” Justice Margaret Arquist, the only female member of the court, asked.

“You don’t know that, Your Honor. The coroner isn’t here and his reports were never evidence in the original case.”

“The record is clear that the coroner testified from his reports, not from his memory, and it’s inconceivable, at least to me, that the coroner would make such a blatant error in the reports of both victims. That evidence combined with the way the prosecutor presented her case, as Mr. Tobin pointed out, creates a pretty compelling case for his client, doesn’t it?”

“I respectfully disagree, Your Honor.” It was all Mitch Jurgensen could say.

Justice Arquist wasn’t through, though. “Mr. Tobin, I still have some concerns because of the fingerprints on the bowie knife and the evidence that this knife or one almost exactly like it was involved in a previous attempted murder. We are dealing with a serial killer situation and we have to be very careful.”

“Yes, Your Honor. I have the same concerns myself although my client was never charged with being a serial killer. Even if there is a basis here for a new trial, shouldn’t we look at the bigger picture even if the law doesn’t provide for that? The answer I come up with is yes and no. Yes, we should be particularly careful in evaluating the evidence but no, we should not apply a different standard. Should the presumption of innocence be any different when a man is being accused of a crime which may be a part of a series of crimes? Should he be entitled to less due process? On the other side of the dilemma are these questions: If the evidence at trial was contrived, what about the evidence found at the scene? If the bowie knife wasn’t the murder weapon, is it reasonable to believe that the killer left it there? Or is it more reasonable to believe that the police, and it could be just one person, put the knife there with Felton’s fingerprints on it since they already had surreptitiously obtained his prints on a previous visit to his apartment? Those are questions neither I nor this court can or must answer but in considering the bigger picture of the seriousness of this particular case, perhaps they should be part of the analysis.”

It was a highly unusual oral argument. They were way outside the evidence in the case. However, Jack knew that the judges had to wrestle with that bigger picture just as he did.

“While we are exploring these so-called other issues that are not part of the record, Mr. Tobin,” Judge Blackwell continued, “how do you deal with the fact that the murders stopped after your client was arrested?”

“There are two possibilities, Your Honor. Either my client was guilty or whoever committed the murders decided it was a good time to move on. I can’t choose which of those two options is correct. I’m just a lawyer so I go back to what I know. The evidence in this case does not support a finding of guilt for the crime charged. The prosecutor knew that. The coroner knew that. The prosecutor chose to hide that fact from the jury and the unwitting public defender. I took the case for those reasons. I believe my client should receive a new trial for those reasons. The law is the law.”