“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.”
Chapter Thirty-One
The story that the police and the state attorney might have conspired to convict Thomas Felton was not only the lead story on the local news at six, it was the only story. The state attorney had a spokesperson, the police department had a spokesperson, the sheriff’s office had a spokesperson—and the message was the same: Thomas Felton was guilty as charged, and his lawyer was just blowing smoke because the execution was near.
“They’re not saying very many flattering things about you, Jack,” Henry said. They were in the living room of the condo. Henry had just arrived back from Miami. Jack had told him he might need him to run down some leads during the next two weeks. Jack was on the floor doing some stretching exercises. He’d just come in from his run.
“I’m crushed,” Jack said. “I want so much to be liked by the media. After all, they are the truth seekers,
aren’t they?”
“It all depends on how you define truth. If it’s synonymous with circus, then you’re right. They are the circus seekers. They’re looking to make a circus out of this thing.”
“It’s what they do,” Jack replied.
“Well, you’d better be careful, my friend. They’re going to work people into a lather and somebody just might come looking for you. Do you have that Sig Sauer with you this time?”
“I do.”
“Good. Keep it loaded and keep it handy.”
“You know, Henry, sometimes I think you’re a little too paranoid.”
“If I wasn’t so paranoid, one of us wouldn’t be here right now.” It was the second acknowledgment between them concerning the sniper on Jack’s running route.
Just then there was a hard knock on the front door, followed by several harder knocks.
“I’ll get it,” Henry said.
Jack knew that Henry was probably armed, but he never saw the weapon. Henry checked the peephole to make sure some whack job wasn’t out there with a gun in his hand. Then he opened the door.
Danni walked right in, not even waiting to be invited.
“Where is he, Henry? And don’t tell me he’s not here. I saw his car in the parking lot.” She was standing in the open area between the living room and the kitchen right by the dining room table but she didn’t see Jack on the floor.
“And it’s great to see you, too, Danni,” Jack said, sitting up.
“That’s not funny. Jack, how could you do this? How could you represent a cold-blooded killer like Felton and at the same time accuse Sam Jeffries of being a crooked cop?”
“I didn’t accuse Sam Jeffries of anything. I just told the judge he was the cop who testified about the murder weapon. That’s it.”
“That’s it? Didn’t you tell the judge that the knife wasn’t the murder weapon?”
“I did.”
“So you merely inferred Sam Jeffries was a liar.”
“The judge made that inference, I didn’t.”
Jack was still sitting. He considered getting up but decided he was safer on the floor. I don’t think she’ll kick me when I’m down.
“You still haven’t answered why you’re representing that piece of garbage.”
“Look, I know why you’re upset and it’s certainly understandable considering all that you went through.”
“You have no idea,” Danni said.
Henry was standing on the sidelines watching. He knew what was going on even if the two of them didn’t.
“You’re probably right but let me tell you why I’m here. You know I work for Exoneration. They were assigned this case. Ben Chapman, the director, called me and Henry to Tallahassee and asked me if I’d represent Felton. I was very reluctant to do so for a lot of reasons but I agreed to at least look at the file. Once I did and saw the injustice that had occurred, I couldn’t let it go.”
“For what it’s worth, Danni, I agreed with him,” Henry added, seeing that Jack might need a lifeline.
“It’s not worth anything, Henry, and that’s not a personal statement aimed at you. It’s not worth anything because the man is guilty and he needs to stay guilty until he’s dead.”
“I won’t say this in court because I don’t have to and because I don’t have the evidence to prove it, but from where I’m sitting, that man, Thomas Felton, was set up,” Jack said.
“Jack, do you know what this community went through ten years ago? Do you have any idea what Sam Jeffries went through personally? What Hannah and I went through? You can’t unleash this vicious killer on this community again. You just can’t do it.”
“Danni, it’s not about me. I’m just a lawyer. The law gives Mr. Felton the right to counsel when he’s about to be put to death. If it weren’t me, it would be somebody else. And I hate to say this because I do understand what this community has been through, certainly not as much as those who lived here, but I didn’t plant a knife in the bushes and claim it was the murder weapon.”
“You’re not just some lawyer, Jack, and you know it. And don’t try and hide behind the law. You have a choice. I’m asking you—don’t take this case.”
“It’s too late, Danni. It really doesn’t matter who is representing Felton at this point. The cat is out of the bag. This judge or an appellate court is going to have to deal with the facts whether I’m presenting them or somebody else is.
“Part of me wants to do what you ask simply because you are the person making the request, but I can’t.”
“You mean you won’t.”
“If I had known how personal this situation was to you and Hannah, I probably would not have even looked into the matter. However, I took on this responsibility. I can’t shrink from it at this late stage.”
Danni stood there ramrod straight in silence, her arms locked across her chest for what seemed like an eternity. Jack wanted to bridge the gulf between them but he didn’t know how.
“Damn you, Jack,” she finally said as she headed for the door. “And Judge Holbrook is not going to give you a new trial. You can bank on that.”
Then she was gone.
Chapter Thirty-Two
Danni was right about Judge Holbrook. Even though Jack was successful in getting all his evidence in at the evidentiary hearing, including the coroner’s reports, the judge denied his motion for a new trial.
Mitch Jurgensen had someone from the coroner’s office, a doctor named Jessel, testify that many of the reports ten years ago had typographical errors in them because the equipment was out of date and the staff was overworked.
Jessel’s testimony gave the judge something to hang his hat on. He also threw in the fact that Jack’s evidence was not newly discovered evidence since the public defender who had represented Felton at trial could have figured out exactly what Jack had figured out simply by reading the autopsy report.
Jack did have the opportunity to meet Sam Jeffries again since he subpoenaed him to the hearing. The two men had not spoken since the Julian Reardon incident.
“I testified that the bowie knife I found was the murder weapon because I believed it was the murder weapon,” Sam told Jack under oath in Judge Holbrook’s courtroom.
“Weren’t you aware that the entry wounds on both victims were only one-quarter inch wide?”
“No. I was aware the victims were both killed because they had been stabbed. I found this bowie knife right outside the victims’ apartment complex. We later tied the prints found on that knife to your client. This bowie knife or one identical to it was used in a prior attack by the serial killer. That was the basis for my testimony.”
“Did you ever speak to the coroner?”
“No.”
“Did you attend the autopsy?”
“No.”
“Do you know anybody who did?”
“No.”
Jack had half expected Judge Holbrook to deny his motion even though the evidence was overwhelmingly in his client’s favor, so he had prepared in advance an appeal brief to file with the Florida Supreme Court. First, however, he needed his client’s approval.
Thomas Felton was remarkably composed when Jack gave him the news. He now had less than four weeks to live.
“The evidence was all right there for the judge. I got all the evidence we needed on the record,” Jack told him. “The only thing we can do is appeal.”
“It’s hard for me to believe that the police planted a bowie knife in the woods when the murder weapon was a stiletto and the judge let them get away with it when he had all this evidence in front of him,” Felton said.
“I hear you, Tom, but it’s never that simple. The judge lives in this community and he knows the murders stopped after you were arrested. He also knows that he wouldn’t win an election for dog catcher if he set you free.”
“So I’m to die so that Judge Holbrook can continue his career as a judge. Something’s wrong with this system.”
“Something is wrong with every
system. People are fallible, so systems are fallible. Listen, we’ve got to make a decision on this appeal. Time is running short.”
“File it, Jack. It’s my only chance. I do want to live and be free again. And thank you for all you’ve done.”
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!
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