On May 25, a 12-member jury deadlocked and a mistrial was declared in the case of Monserrate Terron, the 59-year-old Palm Coast man facing two capital charges that he raped a 7-year-old child at his home in 2019. A new trial is scheduled to start on July 24. Raymond Warren, a retired assistant public defender who practiced in Flagler County and the rest of the Seventh Judicial Circuit for decades (the circuit includes Volusia, St. Johns and Putnam counties) addresses the verdict in light of numerous comments challenging it.
By Raymond Warren
Actually, the jury got it right the first time.
A significant number of the commenters to the series of articles pertaining to this trial have it backwards. When a large number of English barons gathered their forces to confront King John in 1215 on the fields of Runnymede, one of their demands was for the right to be tried by a jury of their peers. They no longer trusted King John to provide justice. They were seeking protection against a vengeful king and wrested the Magna Carta from him to get it.
For 900 years, the goal of all jury trials has been to protect us all from a vengeful government. This dichotomy between justice and vengeance was, to the barons, a relatively new concept. When Richard the Lionhearted participated in the Third Crusade, some of his priests found in the Arab libraries in Damascus portions of the three plays pertaining to King Agamemnon and the jury trial of his son, Orestes, which documents at that time were roughly 1600 years old.
Obviously, over the last 2500 years, people have considered the three plays important enough to preserve them. The priests translated the plays from the original Greek into Latin and brought them back to England. Then, they studied the plays. Our founding fathers studied the plays. I studied them many years ago. Others continue to study them today. Twenty-five years after the plays landed in England, the barons were demanding jury trials.
In the setting of the plays (one complete and two others in fragments), Greek law of antiquity was based on a debt of blood vengeance. If someone wronged you, and if you responded in a vengeful and bloody manner, you were simply following the law.
After two generations of the House of Atreides getting decimated by honor killings in the name of blood vengeance, the law was changed. The grandson of King Atreus was tried by a jury of twelve Athenians. Prosecuted by the Furies and defended by Zeus himself, Orestes stood trial for the murder of his mother after she had murdered his father, who had murdered their daughter, after the grandfather had murdered his brother and all but one of his nephews.
When the jury deadlocked 6-6, Athena cast the deciding vote for acquittal. To this day, this stands as the earliest recorded instance of a honor-based society giving up its old system of law based on individual blood vengeance in order to substitute a respect-based system of law focusing on collective justice. In short, honor demands vengeance and respect commands justice.
Our founders understood the importance of a system of law based on justice. They also understood the risks of allowing vengeance to ever become a factor in any courtroom. Our whole system of justice is designed to keep the vengeful among us at bay.
Yes, there is always the possibility that vengeful people will get onto juries, which is why we require unanimous verdicts, in this instance by a 12-person jury. The idea is that if one person can hold out against 11 vengeful jurors, justice will be preserved.
I am not saying that there were any vengeful people on this particular jury, but the concept remains the same. The jury’s role was and is to protect us all from a vengeful State. If a person is convicted by unanimous vote, then the State is deemed to have met it burden of persuasion and its burden of proof. When one person, or more, has doubts about any issue relevant to one of the elements of a charge, then the State has not met its burden of persuasion and its burden of proof.
Just reread the many vengeful comments posted by several FlaglerLive commenters and you will understand why our founders set up our justice system in such a way as to protect us all from the vengeful among us. We use phrases like “fair and impartial juries” and “neutral and detached magistrates.” We make prosecutors swear oaths to seek justice. If an accused can show good cause for a well-founded belief that his or her judge is biased in any way, the judge is supposed to recuse herself from the case.
We say that it is better that 100 guilty people should go free rather than convict one innocent person. All of these concepts (and others) are rooted in the idea that society is to be protected from the vengeful among us.
Society will not fall if a jury returns a not guilty verdict in a DUI trial. Society will not fall if a juror holds out against all other jurors in a capital sexual battery case, prompting a hung jury. Society will fall if we ever abandon our respect-based system of collective justice and return to an honor-based system of law, with its concomitant requirement of individuals imposing their own debts of blood vengeance onto those whom they perceive have wronged them.
Raymond Warren lives in Volusia County. He regularly comments on FlaglerLive on a vast variety of subjects, including politics and the law, under the handle Ray W., and writes occasional columns. See his previous column, “My Massive Heart Attack, and a Bit of Advice from a Departed Medical Examiner.”
Robert Joseph Fortier says
Very interesting article.
Pogo says
@Raymond Warren
“The Hung Jury Got It Right in the Monserrate Teron Trial”
Yes, they did. And so did you.
I’d be most interested to hear what you might have to say about the similarities between “victims rights” and “parental rights” as they are currently styled by reactionary fascists and phony holy men; funded, I would add, by “eccentric” billionaires who don’t think they are God — they know they are God.
Related reading:
https://www.google.com/search?q=flaws+of+the+magna+carta
https://www.google.com/search?q=myths+about+the+us+founding+fathers
Ray W. says
Thank you, Pogo.
Your link to the Magna Carta yielded a fun read. Proof that whatever governing scheme conceived by the mind of mankind will soon be abused by the mind of mankind. Reminds me of the vote by Floridians to amend our constitution to smooth the way felons can seek to restore most of their rights. Then, our legislature immediately found ways to keep felons from seeking to restore most of the rights.
Ray W. says
As for your comment about victim’s/parent’s rights, that is a complex subject.
I leap to the analogy involving Casey Anthony, who served a short sentence for a misdemeanor conviction after she was acquitted of murdering her daughter. When I heard that the medical examiner had classified the cause of death as “unknown”, I immediately leaped to the idea that the jury must have latched onto that testimony as the reason for the not guilty verdict, but I simply don’t know why the jury decided to find her not guilty.
But, in line with the subject of the vengeful among us, it was widely reported across the nation that Casey Anthony had been released from the Orange County detention center during the early morning hours of a particular day. Either later that day or the next day, a woman spotted a Casey Anthony lookalike in a Kansas store. She immediately attacked the lookalike, because she felt that Casey Anthony had gotten away with murder, and the angry woman felt it her duty to exact punishment.
It is a very old axiom in the law that whenever a child is injured or killed, someone, anyone, must pay. People like Jimbo99 personify that axiom, but he is not the only one.
Vengeance is pervasive in all societies; it only needs a trigger. The bottled hatreds in Lebanon erupted and the jewel of the Arab Mediterranean has never been the same.
Americans have no real idea of just how bad it can get here if we abandon our respect-based system of law and return to a land of honor, a land of vendetta, a land of blood vengeance, where the disaffected among us perceive free reign to act on all of their pent-up anger.
I will repeat what I have commonly posted. I was and still am haunted by the story of a Muslim man who survived bloodshed in a village near Sarajevo. He spoke of a killing squad led by a fellow villager. He had survived the marauders but had seen the killers murder his family. The man leading the squad had worked side by side with the survivor in a factory. Their children had played together. They had eaten in each other’s homes. They had celebrated special events together over the years. But, when the violence erupted, his friend chose to lead a killing squad, chose to murder those with whom he had shared bread, chose to destroy a community. Don’t ever think that the vengeful among us will ever show restraint if they ever get to act on their grievances. “Hang Mike Pence” kind of says it all. Some Flagler County residents want to behead Democrats.
Victim’s rights? A code phrase for individual vengeance. Just watch courtroom videos of victims screaming at defendants and you will understand that the wall of American collective justice, built over centuries of struggle, is at risk of falling. In my opinion, we are still in the early years of a wave of violence in this country, the likes of which we have not seen since the turn of the 20th century.
Pogo says
@Mr. Warren
Thank you. Once again, your response exceeded my best hope.
IMO, mankind is in desperate trouble, and I am not at all hopeful about the future:
The dude says
So we need 12 jurors to agree that the man raped a child to put him away.
But, in a capital case, only 8 of 12 to agree if he should die?
Floriduh never disappoints.
Jimbo99 says
Growing up I met/knew of Warren, he’s wrong on this. Dragging out the inevitable, the Monsterrate was acquitted over confusion of the location of where the deeds/acts happened ? That’s if I read what the news story was. So now we have a do over within 90 days of getting the location of an atrocity as accurate ? And the next trial won’t be a matter of whether it happened, it’ll be a debate over whether it happened in the living room, bedroom or a bathroom in the house. Whether it was dwelling on 1 street or another, yet was either a property owned or rented ? And so the gist of this article is a matter of Constitutional rights of the accused. Which was not abridged in the 1st trial. It was a slam dunk really, that’s why it was under a week to present evidence, that at the 6-6 vote count, 1/2 the jurors did not acquit. Evidently, 1/2 the people that weren’t there saw guilty, the other 1/2 split hairs on a location as the only reason for acquittal.
How can Monsterrate be such a hated family member that everyone that testified against him, dislikes him that much to accuse him of what is probably the most heinous accusations short of murdering someone ? That’s not vengeful from the peanut gallery, anyone that commented probably just wanted the whole thing to be settled once & for all. we’re paying good money for this show. If the Monsterrate is innocent, then he’s innocent. All he wins is what he already had, whatever integrity & good name that’s been dragged thru the mud. If the jurors only rational was they weren’t sure where it happened for an acquittal, that’s just a geographical plot of coordinates on planet Earth. And sorry, that’s the wrong decision, not getting it right. The victim will have to relive this within the 90 day to pinpoint a location on planet Earth, within a tolerance of GPS positional error. Really ?
Ray W. says
Thank you, Jimbo99.
I might have known you from junior high school. Perhaps not. You might have known my oldest brother, Robert. Or the next oldest, Danny. Or my younger brother, Joe. Or my youngest brother, David. All five of us, in quick succession, attended Seabreeze Junior High. My two sisters were bookend siblings.
I have commonly heard individuals tell me that they remember me doing something. Sometimes, they were right, sometimes to my chagrin. Sometimes, they confused me with one of my brothers. My parents were lightning rods in the community. People either loved my family or hated me and my family.
For example, several years ago, I walked into an elevator in the St. Johns County courthouse with a man who appeared to be about my age. We began talking. I asked him his name. He was a Manucy, a son of the local Klan leader during the racial crisis of 1964. I commented that his father knew my father, Dan Warren. Mr. Manucy looked at me closely and said his father knew my father very well. Of course, I knew that the Klan had been infiltrated by law enforcement and it had been reported that the assassination of my family had been approved and funded. Yes, the Warrens were lightning rods in the community.
Please reread your comment. Then, consider the fact that our founding fathers gave the political power to determine guilt or innocence to jurors or, if both parties agree, to judges. Individuals no longer possess the political power to convict anyone unless they are chosen to serve on a jury. We all have the right to express our opinion on guilt, but that opinion is meaningless until a jury renders its verdict. Neither you nor I were present when whatever did or did not occur, so neither of us actually knows what happened, or where it happened. Is it possible that there is some form of magical thinking driving your comment? That if only you believe something with enough conviction, and forcefully commit your belief to commentary, it will magically become true? You assembled a plethora of reasons that to you satisfies your threshold for conviction, but they are meaningless reasons unless and until a 12-person jury unanimously votes to convict.
The first jury got it right.
We believe the girl says
You are so wrong Mr. Warren, what is wrong is wrong, no matter the place, a person who has been abusing girls for 30 years should be behind bars, only a few jurors felt different and that is because the only witness from defense, THE WIFE OF THE ACCUSED, lied, if you hear hear and see her, you know she was lying. Its incredible how a little girl is brave enough to report this horrendous crime and they will make her go through it again while she should be trying to get her life back to normal childhood. There was no doubt that this man did all the crimes, but because of doubt on place he can go and do it again. This is the reason why so many victims stay quiet, and our society will keep rotting, by your words, and lack of justice I suspect you align whit this low moral and decency kind of person, which leaves no hope for a better future where children can grow as children and not victims. Even the defense lawyer knew the girl was telling the truth and was having a personal hard time defending the undefendable. Obviously the wife has all to loose, and for me was a facilitator to her husband. I hope next time the jury gets it right, the real right no your opinion of right, for the good our future.
Pierre Tristam says
To question the jury’s decision is one thing. To question the character of Mr. Warren, whose brilliance and sense of morals and justice (like his father’s) still has no equal in the Seventh Judicial Circuit, is another. I covered the trial gavel to gavel. I understand the exasperation, and also saw, in hindsight, the vulnerabilities in the prosecution’s ability to refute the wife’s claim: for example, no one from law enforcement or the State Attorney’s office had been to her house to actually verify whether the claim that she had eyes on her husband the entire 35-40 minutes he was in the bedroom where the girl spent the night stands up. That’s being rectified: the judge approved an order allowing for photographs to be taken of the layout, ahead of the next trial. But that’s beside the point Mr Warren is making. He is not justifying Mr Teron. He is defending the jury system. Conflating the two is easy. It’s also unjust and uncalled for. Nothing in Mr Warren’s argument goes to justifying Mr Teron or even claiming that he has a solid defense. He is writing exclusively about our jury system, to which ultimately we must defer, however flawed verdicts can and at times are, in the same way that our peers who make up those juries can be flawed. We cannot claim at snifter cocktail parties, with high-minded pride in the system, that it’s better to let 100 guilty people go free rather than convict an innocent person, then turn around when it counts most and throw that out the courthouse’s fourth floor windows. We can differ in our reactions to the verdict. We cannot confuse a defense of the system down to all trial proceedings and outcomes with a justification or excuse of the alleged crimes. The two have nothing to do with each other. We do not blame the judge for a trial’s outcome (unless the judge exhibited incompetence, which you will never see from Judge Perkins). The same applies to attorneys. The defense attempted to cross moral lines in pre-trials. The judge stopped it. That’s what pre-trials are for. In essence, the system worked. So the only thing we owe attorneys like Mr. Warren, like Teron’s attorneys (no less than the prosecutor) is admiration as officers in that system. It takes nothing away from debating and arguing the elements of the trial, even its outcome, even with outrage (or relief, if you’re in Mr Teron’s aisle).
I believe the girls says says
You may be right, I do not know them personally, also I have no admiration for anyone who can defend something like this, specially since I have children, but then our system fails, just risking to relay on a unanimous jury. It should be majority, as a comment before ( I heard only 2 jurors prevent a conviction) , we don’t need unanimous for death penalty, but we do for a little girl to get justice. Sadly we have people who can block this over and over, and for me not giving a closure to this families is immoral also, and instead of saying the juror was right, it will be more appropriate and moral to say that the system is wrong. Mr. Warren might see it only from the defective law part, and it could be right to him, but not for me. Sometimes the law is unfair, specially to the victim. This is not a small robbery, or a traffic violation, this is messing with a little girls life, and for me a juror that knows it happened but have doubts where, is just giving the opportunity of this man to repeat his offense and maybe next time they will get him, next time when there’s another victim. So if you are so brilliance and with sense of moral and justice, use your expertise or comments to open the eyes on fixing the system, to transform such information in fixing the system for the good of our children and future generations. Remember also, that the accuse is able to choose his attorney while the victim relays on what the system provides them on terms of attorney and law enforcement, in top of risking if any of the jurors from the area had not real attention or interest in the case or worst, no moral.
Ray W. says
Thank you, I believe the girls.
The portion of your comment about the risk of relying on unanimous juries raises the obvious question. What if the vote had been 10-2 for acquittal? Would you so forcefully agitate for doing away with unanimity?
This is not idle speculation. As I have commented before, my very first involvement beyond the bar in a courtroom occurred after my second year of law school. When school let out for summer break, I began helping my father in what would turn out to be an eight-and-a-half-week death penalty trial that brought national news coverage. Reporters swarmed the attorneys at each break. News camera teams set up each day in the courthouse parking lot. Front page, above the fold in each new News-Journal edition. This was Volusia County’s Casey Anthony moment.
Factually, a young mother was on trial for allegedly murdering her two children for insurance money by setting fire to the trailer. She and her husband lived in a long-established trailer park in Port Orange. Her husband worked three jobs, one full-time. She was a stay-at-home mom. They were remodeling their home; each door had been removed from its hinges to be sanded down and repainted. Port Orange had just passed an ordinance requiring that all homes in trailer parks have concrete steps and a concrete pad for the front doors. A neighbor had just hired a contractor to do the work. The ordinance deadline loomed.
The defendant fed lunch to her children, with the medical examiner testifying that their stomachs were full of freshly eaten food, including french fries. The fryer filled with oil was on the stovetop. As I recall, she told investigators that her two children took an afternoon nap and she went over to the neighbor’s home to discuss the details of hiring a contractor, applying for a permit, etc. The neighbor said the conversation lasted 20 minutes or so. The neighbor spotted smoke and the mom ran to her home and opened the door to a fully engulfed trailer fire. With the timeframe established, a fire marshal was brought in to investigate the case. He interviewed multiple witnesses and concluded that the mother had poured gasoline into a metal decorative Saltine can, placed it on the kitchen floor, set it on fire and left to talk to the neighbor to establish an alibi. The kitchen floor had burned through, and the Saltine can was found on the ground below the hole.
The State’s theory of prosecution required that all exterior doors and windows be closed, so that the fire would smolder from a lack of oxygen, the classic backdraft effect as depicted in the movie of that name. Superheated carbon monoxide would build up inside the trailer during the 20 minutes. When the mom opened the front door, the inrush of oxygen would cause the backdraft effect to occur and the whole trailer would go up in flames. With no doors on the hinges, the entire trailer would erupt in flames. Classic arson argument. No doubt many FlaglerLive readers, ever vengeful, would argue against even having a trial at all.
The problems? In the first trial, the Saltine can was the subject of some discussion, such as the temperature at which the metal would melt if it held gasoline. The temperature at which the enamel paint would char or change color, etc. During the defense’s closing argument, my father pointed out what every state witness and the prosecutor had missed. Why was the enamel paint that rimmed the top of the can uncharred, unburned, as if the lid had been on the can all along? If the lid had been on the can during the entire fire, protecting that bit of enamel paint from the flames inside, who had removed the lid from the can after it had been found on the ground underneath the hole in the floor? Why would someone investigating the case remove the lid after finding the can and then argue that gasoline had been put inside the can and ignited? With over eight weeks of testimony, of which I watched about five weeks, there was much more evidence than can ever be put in this comment, but the jury deadlocked 10-2 for acquittal. Just as two jurors thankfully filed their comments in this article’s comment thread, jurors in that 1984 trial were interviewed by the press after they were released. The consensus? Two of the jurors had made up their minds during the State’s opening statement, despite the judge’s instructions to keep an open mind until the case presentation was complete and closing arguments had occurred; they just couldn’t be persuaded to vote to acquit.
The second trial took four-and-a-half weeks. An arson specialist out of Tallahassee was brought in to replace the original prosecutor. Late one Friday afternoon, a witness took the stand during the State’s case-in-chief. My father couldn’t find his file folder in the multi-box trial file. As my father stepped up to cross-examine the witness, he commented to me that he had heard the witness’ name and there had to be a file somewhere with his deposition, as he had deposed every listed witness. I combed the boxes. No file under that name. But I spotted a file containing a sworn fire marshal statement taken the day after the fire. That witness’ name was on the statement, plus an “unidentified male.” I began reading the statement as my father finished up his cross-examination. Several pages into the statement, the unidentified male identified himself; he was the witness on the stand. Why the fire marshal listed the man as “unidentified” when he identified himself all along remains a mystery? Why the man’s name was not listed by the State in discovery remains a mystery? But the man at that time early in the investigation told the fire marshal that as he raced up to the burning trailer, the flames were “roaring out the open windows.” No possible backdraft effect. No possible way for the mother to ever set the fire and leave the trailer for 20 or so minutes. The fire marshal knew his theory didn’t work all along and never identified the man who defeated their theory and the State never listed him as a witness to be deposed. I never asked my father how he remembered the name but forgot the testimony. I can infer that he read all the reports as they came in, long before the theory was raised, and he filed the report in the other person’s file and never looked at it again. Early in the development of the case, he just didn’t know very much about the backdraft effect.
The judge released the witness and began telling the jury that court was recessing for the weekend. As my father walked toward me, I became agitated, telling him he needed to read the statement. Upon reading the witness’ words, he interrupted the judge and said he had to ask a very important question. The judge ordered the bailiff to get the witness before he drove off. The bailiff ran down the hall and out of the courthouse, his footsteps echoing through the courtroom. Minutes later, he returned with the witness, stating that he stopped him as he was backing his truck out of the lot. My father asked him if the windows were open, with flames “roaring out” as he ran up to the trailer. He answered: Yes! My first, but not nearly only Perry Mason moment. He was released again, and court was recessed for the weekend. I was returning to law school that weekend after Christmas Break, so I walked over to the prosecutor to shake his hand and say my goodby. He said: Good! There won’t be any more bombshells!
That jury voted 12-0 to acquit. 22-2 for acquittal in the worst possible charge any mother could ever face. Thirteen weeks of trial. The whole nation watching.
I will never know why the fire marshal decided not to identify the crucial witness. I will never know why he would testify to a backdraft effect when he knew it was impossible to have a backdraft effect. He knew from day one that it couldn’t happen the way he testified under oath that it had happened. Both prosecutors apparently missed the witness’ testimony, but I can’t prove that either. All I know is that a vengeful state sought to kill a mother who had left her sleeping children to talk to a neighbor about how to obey the newly passed ordinance.
As several asides, one of the children was found dead on the kitchen floor next to a blob of plastic near his outstretched hand. A witness identified the blob as an exploded lighter. The frying pan was found on the kitchen floor. The stove’s pilot light was either turned off or nonfunctional. The mother had to light the stove each time she needed to use it. Was the stove’s burner handle turned on by the child after the mom stepped outside. Did he light the burner? Did he pull the frying pan down when it caught of fire? We will never know, because the State obtained a court order early in the case to release the trailer to the insurance company; it was sold for scrap. During an intense argument in court in the first trial over the missing trailer and the resulting inability to check the window handles to see if they had melted in an open position (aluminum melts at a temperature lower than what would occur in a backdraft fire, according to a different expert witness), the prosecutor announced that he didn’t know where the trailer was. When the story hit the evening news, the owner of a scrapyard called my father’s office late in the afternoon. He asked why the prosecutor would tell the judge that he didn’t know where the trailer was? He stated that a state attorney’s office investigator had come to his scrapyard the day before to look at the trailer and told him to expect a possible call to court. Minutes later, I was walking through a scrapyard looking at various pieces of the trailer. I will never know why the prosecutor told the judge that he didn’t know where the trailer was when he had sent an investigator to the scrapyard the day before, with the possibility of calling the owner to testify in court.
From my very first trial experience, I have always known why the English barons gathered their forces at Rynnymede to force King John to agree to give them jury trials. No vengeful king’s justice for them, please. They couldn’t expect justice from their king, and they hoped for justice from their peers.
Vengeance is not the answer; it is never the answer! Respect for the law is the answer! If right and wrong is determined by whether we like something or not, then right and wrong will change every day, to fit whatever it is that we do or don’t like that particular day.
The jury got it right. You have it backwards. It is difficult to win an argument when you start from a losing position. We do not trust individuals to dispense justice. We never have, under our liberal democratic Constitutional republican form of government.
Laurel says
Ray W.: Okay, so the unanimous thing is making more sense. But what does the concept “vengeance” cover in the court room? One of the definitions of vengeance is punishment inflicted in return for an injury or an offense. To me, it sounds more like personal ego that a prosecutor, who wants to win to bolster his/her career at the expense of the truth and the expense of the accused, instead of getting even.
You know, that “retribution” thing that we’ve heard lately.
Laurel says
Ray W.: Okay, I get what you are saying, and I believe the forefathers were correct and virtuous in their intent, but it only works to a certain extent. We are well aware that there have been many innocent people in prison, mainly black men and, by my standards, women who self defend against abusive spouses in order to stay alive themselves. These truths appear a societal revenge which would be honor based. It has no room for pure, sheer logic. There is something convoluted about depending on one person holding back 11 possibly vengeful people, although it can happen. Wasn’t that in the movie “Twelve Angry Men”?
Don’t get me wrong, I am totally against honor based revenge as supposed justice. I don’t like mob mentality, (though I may have dipped my toe in that water on occasion.) It’s just that a respect based system seems to be so careful about the supposed perpetrator at the expense of the accuser.
Meanwhile, we do have a vengeance government, which I concede is scary at times.
Anyway, you have helped me understand what and why it happened. Now, you can write about conservative beginnings.
Ray W. says
Hello Laurel,
Perhaps a few anecdotes from my years of jury selection may help. I have mentioned each of these in earlier comments.
In 1998, as I recall, I participated in jury selection in a death penalty case. The trial judge, an extremely competent jurist, and now an appellate court judge, was qualifying the jury, prior to the lawyers engaging in voir dire. He asked a youngish woman under what circumstances she would consider imposing the death penalty. She stated that she would vote for death if a child or animal had been injured.
That defendant was facing seven armed robbery with a firearm cases, and an eighth case that also involved a murdered night clerk. All cases involved a masked robber, so none of the victims ever identified my client. In the first trial, the jury returned a verdict of not guilty of armed robbery with a firearm. The prosecutor never completely saw the holes in the case. Their prime witness, a snitch, had just beaten his own first-degree murder charge in Brevard County by demanding speedy trial after the State filed too soon, before it had shored up its witnesses by offering the co-defendant a deal. When the co-defendant refused all offers, the snitch walked free. The snitch came forward after his brother had been sent to federal prison for more that 10 years on a conspiracy to distribute large quantities of drugs, and the State gave the convicted brother a deal in exchange for the snitch’s testimony. And it wasn’t the first time that the snitch had been a snitch. The snitch had been seriously injured in a car wreck before ever becoming a snitch, which wreck ended a long police pursuit of the snitch at high speed. He hit a mother’s car while running a red light at over 100 mph, seriously injuring the mother, and causing the snitch permanent spinal cord nerve damage. But most damning for the State, their victim in the first trial, a convenience store clerk, testified that the masked robber was extremely pigeon-toed in his gate, and that the robber stood between 5’10” and 6′ tall. My client was 5’4″ and walked with a slightly open gate. Out of the eight cases, the State obtained three convictions. The jury recommended life, after deliberating for 46 minutes in the penalty phase. After the first trial, the State ordered a complete transcript and studied my defense tactics. They adapted, as I knew they would, just as Melissa Clark is doing in this case.
There is a story told at death penalty defense conferences of a juror being asked if he could impose the death penalty. He supposedly replied that he could do it on a Saturday, as he had to work during the week.
In a more recent death penalty jury selection process, 165 jurors were questioned over a five-day period. Twelve were selected, with three alternates. Each side had 12 peremptory challenges. I used 11. I don’t recall how many the State used of its 12. Perhaps as many as 127 were excused for cause by the trial judge, for a wide variety of reasons. One was so hostile in his demeanor that the judge called us to the bench to tell us to leave him alone until the next jury break. During that break, the judge brought the juror in alone, so as to not contaminate the other jurors. The juror contemptuously told the judge that he did not recognize the judge’s authority, as he was extremely opposed to anyone who spoke with a foreign accent sitting as a judge in any case.
Over the decades, I have heard some say that death is called for in all murder cases. Even some FlaglerLive commenters have stated that opinion. Just kill them all, they write. Quite a few of the comments associated with this article establish that many FlaglerLive commenters are not qualified to sit as fair and impartial jurors in any criminal trial, much less a serious one. They just can’t quite understand that fair and impartial means not being biased and prejudiced before trial to convict anyone accused of having sexual relations with an underage victim.
The real problem occurs when a biased and prejudiced juror attempts to fake his way onto a jury, for whatever reason. Decades ago, when the drug war was in full fury, I used to tell my clients who were considering a trial in their drug cases to watch out for jurors who were smiling at them. I would tell them that so many people perceived drugs as evil that it was certainly possible that a person summonsed for jury duty might tell his or her spouse on the morning of jury selection that he or she hoped to get picked for a drug case jury, in order to get even. Beware the smiling juror, he just might be smiling in the hopes of vengeance for a real or imagined wrong.
Does anyone think that one or more of the many vengeful FlaglerLive commenters associated with the articles arising from this trial would lie to get selected for the upcoming jury retrial, given the chance? That they await the mail each day in hopes of receiving a jury summons for July 24. Just so they could impose their form of vengeance, in the name of what they claim is the only real form of justice, which is guilt decided prior to trial, regardless of the evidence, the lack of evidence or a conflict in the evidence? How important would be a new juror hold-out or two if the vengeful among us wormed their way onto that jury?
Laurel says
Okay, I understand about possible vengeful jurists. That I get.
I hate to admit that I am confused about the snitch. Being pigeon toed as a kid, and had to learn to turn my feet out, I would not have missed that one! So, is the snitch nearly 6′ tall, or did I turn down the wrong road? I’m also not sure what that has to do with the possible female jurist who would go along with the death penalty if a person or animal was hurt.
Ray W. says
I apologize for devoting too little effort to describe the role of the snitch.
Thfe snitch befriended my client long before the string of robberies and murders ever occurred. The snitch came from a family of petty criminals, with a few more serious actors sprinkled throughout the family. After the robberies and murder, the snitch came forward to police and said my client committed the crimes, and please help my brother who is in federal prison. Based on the snitch’s help, the police arrested my client at his home and searched the premises, finding in a broken-down car on the property a pair of coveralls matching descriptions of the clothing worn by the masked robber given by the various convenience store clerks who had been robbed at gunpoint. When interviewed by detectives, as I recall from nearly 30-year-old files that have long since been shredded, my client said the snitch, his would-be friend, had stopped at his home and asked him to hide some clothing for him. You pay for the company you keep, or so it sometimes seems.
The snitch’s murder case in Brevard County involved three people who wanted to burgle a drug dealer’s home while the dealer was out and about the town. The snitch, partially paralyzed, drove the car to the drug dealer’s home. Barely able to walk and unable to run, he couldn’t easily go into the home. Another young man and woman exited the car and broke into the home. The dealer came home, confronted the pair inside and a shootout began. The young man raced to the getaway car and dove through an open passenger window. The young woman, wounded, never made it to the car and died by the side of the road after the snitch drove off. The diving burglar was also wounded. He implicated the snitch when arrested, but then clammed up. The State filed too soon against the snitch, relying on the wounded burglar’s initial statement, but they needed the wounded burglar’s testimony to convict the snitch; the initial interview was not in the same category as live courtroom testimony, which can be subjected to cross-examination. The snitch’s very competent lawyer immediately demanded speedy trial. Suddenly, the State had to choose between prosecuting the snitch by giving the farm to the diving burglar in exchange for his testimony against the snitch or prosecuting the diving burglar. The State kept the farm and prosecuted the diving burglar for the burglary and death of his co-burglar. The snitch walked free. Sometimes, prosecutors simply need to take their time to properly build their cases, instead of rushing into prosecutions before they are ready to go.
I will never know what actually happened in the seven robberies and one murder/robbery. I wasn’t there. Could the snitch have recruited a third person? Several persons? My client in some cases, but not all? Possibly. From the angle of bullet entry in a cabinet behind the slain clerk, the State’s proposed visual aid in the murder trial had my 5’4″ client shooting the clerk with the gun held high over his head. The downward angle of the bullet trajectory suggested a much taller shooter, but the shooting could have occurred with a short shooter; it was possibly if only barely so. The other clerks were wildly divergent in their description of their robbers. Some were shorter than others. Some were not pigeon-toed. All wore what appeared from stills taken from store videos and from descriptions given by the clerks a certain type of black coverall. The coverall could have fit me, and I am 6’1″ tall. I held the coveralls up to my neck during closing argument in the first trial and the legs hung loosely on the floor of the courtroom. In the second trial, the State asked the court to order that my client put on the coveralls in front of the jury. They hung extremely loosely on his 5’4″ frame and looked a poor fit, but that second jury convicted, apparently convinced enough by the evidence to be unanimously satisfied. As an aside, after closing arguments in the first trial, the prosecutor told me it was the finest closing argument he had ever heard. The State then adapted its argument in the later trials to deal with my points, as is to be expected in a system based on argumentation. The State was blind to several points of weakness that I could easily see in their initial case, but given another chance, they did not miss the opportunity to improve their case.
Epiphanies occur in many different ways. Some are joyous and rapturous events. Others are mundane and pedestrian. Yet all moments of clarity are epiphanies. Once learned, certain moments of understanding cannot be unlearned. The “aha” moment. “Voila!” The Red Scare catapulted Senator McCarthy to national prominence until the moment when the nation came to its senses. The French term, “vignette”, which means in part a snapshot on one’s life that captures the essence of an event, can provide that moment of clarity, that epiphany, that event that changes perspective, that changes worldview. The gullible among us are so easily duped by those whose ambition drives them to characterize January 6 not as an insurrection but as an effort by patriots to save a nation. Not all epiphanies are positive in nature or effect.
Laurel says
“Vignette”: A glitch in the Matrix. :)
Thank you for your explanations. I have a better understanding because of them.
Laurel says
Okay, I get it about the possible female jurist. But the snitch…
Laurel says
Ray W.: You got me going, now. I can see the snitch coming forward because of his brother, being a drug dealer, could provide drugs to the snitch who had a spinal cord injury, and maybe the gait and height of the perpetrator were simple differences between the real, unknown perp and the accused. But he still got three convictions…
Ray W. says
Hello Laurel.
Actually, a total of eight snitches came forward, seven from the jail. The State did not use all eight in the various trials. Some were obviously reading the news articles about the case and angling for a deal; the State told me they never intended to use them, but they had to be listed in the State’s discovery materials, according to the broad dictates of the rule. Other snitches told of events that could not have been learned from reading news articles, but it was possible that the original snitch had recruited them, too. Then, too, they could have learned this from my client at the jail. After all, I don’t watch every moment of any of my client’s life. My client always denied involvement in any of the cases to me, but I wasn’t there. If I had been there for any of the events, I couldn’t have represented him, because a lawyer can’t be a witness and work on the case, too. This applies to prosecutors, too. Judges, too.
This was a complex and multi-faceted case. The lead appellate public defender met with the trial judge after the homicide trial was complete, arguing in my presence that the appellate office lacked any attorney with the experience necessary to handle the appeal of the three very complex convictions. The trial judge agreed and appointed me as special appellate counsel. The case files filled seven filing cabinet drawers. As I recall, when the initial appeals were complete, and after my client demanded all of his discovery materials, I wrote to him advising that he pay a nominal per page copying fee (ten cents) and warned him that if he demanded the originals and they were lost or misplaced by prison staff they could not be replaced, as I would no longer have any of the documents. He demanded the originals. I recall my secretaries filling 15 bankers boxes with paperwork and I remember paying for the shipping fees to the prison at which he had been placed. The Department of Corrections almost immediately moved him to a different facility and somehow lost all of the paperwork in the transfer.
During the homicide trial, the State clearly overstepped a clear legal boundary, in my opinion intentionally so. After hearing my motion for mistrial, the trial judge announced that he needed time to think about the error. The question, as I recall, was whether fundamental error had occurred, necessitating immediate mistrial, or simple possible reversible error, which carries an element of discretion on the part of the trial judge and a different legal standard on appeal. The next morning, the trial judge announced that he had been up all night and that he had been “sweating peanut butter” (a unique phrase to my ears in my years of experience) over the issue, but he had decided to rule that it was not fundamental error, even though it was a serious error. I could go on and on about this series of trials, with the State repeatedly overstepping legal boundaries, which is why I am of the opinion that he did so on purpose, hoping to get favorable points to the jury by getting close to fundamental error, but not going too far. The prosecutor knew that a jury would not understand the legal requirements; he simply presented as a prosecutor who was willing to violate the evidentiary rules in hopes of bolstering his argument. For example, during closing argument in the penalty phase, he argued to the jury that the defense arguments pertaining to mitigating evidence were “an excuse.” For at least a decade at that time, ample case law forbad the use of the phrase “an excuse” in the context of mitigating evidence. Everyone in the legal system knew such a phrase was forbidden. I objected and the trial judge immediately sent the jury out of the room. He then chastised the prosecutor and ordered him to never use that phrase again and ordered that the phrase would be struck from the record, meaning that he would tell the jury that they in no uncertain terms should refer to that phrase during deliberations. He brought the jury back in and told them that the prosecutor had committed a serious error and ordered them to not consider the phrase or any implications from it. I was pissed off in a way that I am seldom pissed off. After so many oversteps by the prosecutor during trial, prompting so many rulings by the trial judge on how close the prosecutor was getting to fundamental error, I couldn’t overlook the risk that the jury couldn’t set aside what the prosecutor had argued. When it came time for me to deliver my closing argument, I chose my own fundamental error moment and argued that I had listed 22 mitigating circumstances and that the State had argued only two aggravating circumstances. I knew it was not permitted, but I had had enough of the State’s antics. The State immediately objected and the judge immediately sent the jury out of the room; he then chastised me and brought the jury back in. I then told the jury that I couldn’t argue the numbers, but they knew how to add all on their own. The judge immediately sent the jury back out and chastised me some more. My father said the prosecutor sat at his table with his fists clenched and veins bulging in his forehead as I argued with the trial judge. Go figure. Repeatedly break the evidentiary rules and then steam when I do it once. In the end, 46-minute life recommendation.
So many prosecutors are willing to overstep the legal boundaries in an effort to bolster their case, it boggles the mind. Once, a prosecutor insisted I had opened the door to the introduction of clearly illegal evidence that had nothing to do with the charges before the jury. That trial judge agreed with me and denied admittance of the evidence. The prosecutor accused the judge of permitting a jury to hear only a part of the truth. The judge, normally as even-tempered as any judge could be, asked the prosecutor if he was alleging that the court was suppressing the truth. Before the prosecutor could answer, the judge cut him off by stating that next words he said would be very important. “Proceed at your own peril”, he ordered. After that trial, I called the prosecutor, whom I had known for years. I told him we needed to go to lunch and that I would pay. At that lunch, I told him that my years of experience with him had not prepared me for the vast number of legal errors he had committed during that trial. He initially laughed and smirked. I told him he could not possibly have lost so many evidentiary arguments with that particular trial judge, and could not have been rebuked so many times, without knowing that he was simply wrong on so many points of law. I told him that my image of him had been seriously damaged by his obviously illegal antics. He stopped smirking and the conversation became serious. My point to him, in the end, was that he had enough legitimate evidence to win his case, if the jury were to accept that evidence as true. Why did he have to attempt to violate the evidentiary rules so often? There was no need for him to do any of what he did. I like to think we remained friends after that lunch and I had many cases with him in later years, but who knows? That jury acquitted on one count and convicted on another, after deliberating over two days for a total of over six hours.
FlaglerLive readers have no idea how many times the State oversteps the evidentiary rules. Perhaps one day I will devote more to this topic. I have been thinking about such a submission for a long time now, waiting for the right moment to delve into that complex subject, but it will likely be one of the more controversial subject matters I address, as it calls for discussing the checks and balances on prosecutors and law enforcement officers and whether many or most of them actually know the limits of the powers that have been delegated by the people to them.
All I can say is that for nearly the final 20 years of my practice, I asked certain law enforcement officers to tell me if they actually know the limits of their limited police powers, usually officers whom I have known for years. Not the angry ones. Not the suspicious ones. The ones whom I felt were experienced, and serious and dedicated to their jobs. Two came close to correctly identifying their limits, but not quite. Some 50 or so, maybe more, missed the issue entirely. When I explained the limits of their delegated powers to them, all of them said that my explanation made sense. Some asked why they had never been taught this. One was an instructor at DBCC’s training academy; he said he was going to add the issue to his lectures to his students. I know he did, because one of my two son’s childhood friends graduated from the academy after that talk. I saw him at a wedding for another of my son’s friends. I asked him if he had been taught about the limits of the powers that he would receive on becoming an officer. He said he recalled being taught about limits to his powers at the academy.
Laurel says
Ray W.: You give people too much credit! Then again, I’m not a people person.
I learned about original documents early on. My father was in a rest home in Ft. Lauderdale. He was indigent. The home wanted him out, but as he was ill and unable to care for himself, he really needed to stay. I was about 20 at the time, and rather naive. I took several of his documents to Legal Aid, on Andrews Avenue across from the home, and got a case started. When I went back to Legal Aid at my next appointment, they had no documents. I had no originals, or copies. They did not help my dad. I have never had any faith in Legal Aid again, and I’m never without multiple copies of any important documents. If I had been a juror and heard about documents disappearing, that would lean me in favor of the accused as something was wrong.