“I volunteered to help out as an investigator for Exoneration on death penalty cases, if that’s what you mean.”
“Not on any death penalty cases, just the cases Jack Tobin was working on, isn’t that right?”
“Yes.”
“You became his right-hand man?”
“Yes.”
“You were a team?”
“Yes.”
“Mr. Tobin is your best friend, isn’t he?”
“Yes.”
“You would do anything for him, wouldn’t you?”
Henry was about to say, “I wouldn’t lie for him,” but he knew that wasn’t true. He’d kill for Jack. He already had.
“Yes.”
“No further questions.”
“Redirect?”
“No, Your Honor.”
“Okay, folks, we’re going to break for lunch. Remember the admonitions I have given you. Do not talk among yourselves about the case.”
* * *
As usual, Tom and Jack stayed in the courtroom for lunch. Tom brought the Snickers bars.
“Jesus, Merton is good,” Jack said. “I don’t know what he’s doing hiding in Apache County as a prosecutor. He could make millions as a criminal defense attorney on the big stage.”
“He doesn’t seem to be the type who is in it for the right reasons, either,” Tom added.
“No. He wants to win no matter what the cost. Maybe he wants to be the governor or something like that and this is his path.”
“Whatever the reason, he’s doing a job on us.”
“I’d have to agree with you so far, Tom, but it’s not over yet.”
“I was going to call Ron next to talk about the night you were drinking and said you were going to kill Felton, but I think I’m going to let him go. Merton will just do the friendship cross again and it will backfire in our faces.”
“I agree. Just put me on. Let’s get it over with.”
There were definitely a few more press people in the room for the afternoon session, and it seemed like the gallery was even bigger as well. They all knew what was coming. You could taste the anticipation in the air.
“Call your next witness, Mr. Wylie.”
“The defense calls Jack Tobin.”
Jack stood up, walked over to the clerk, swore to tell the truth, and climbed up into the witness chair.
Tom first took Jack through his long and illustrious career as a civil trial lawyer. He wanted the jury to know not only how successful Jack was but how rich he was as well.
“So you started the firm and built it up, is that correct?”
“Yes.”
“And how many lawyers did the firm have when you left?”
“Right around one hundred.”
“Did the partners buy you out of your interest in the firm when you decided to leave?”
“Yes.”
“What was the buyout figure?”
“Twenty million dollars.”
“And was that in addition to your retirement package?”
“Yes.”
“What were your plans at the time?”
“I was going to retire to the small town of Bass Creek and fish. I’d work part-time as a country lawyer but nothing too serious.”
“So what happened?”
“An old friend of mine died in New York—my best friend when I was growing up. When I went up for the funeral, I found out that his son was on death row for a murder he had supposedly committed in Bass Creek. The fact that I was living in Bass Creek made me think that maybe I was supposed to get involved in my friend’s son’s case, so I took a look at it.”
“And?”
“And I became convinced that his son—Rudy was his name—was innocent. So I undertook to represent Rudy.”
“Was that representation successful?”
“No, it wasn’t.”
“What did you do after that?”
“I became a prosecutor for a while and I successfully prosecuted the detective who had arrested Rudy and whose testimony convicted Rudy.
“And then I started to represent people on death row. Representing Rudy gave me a different purpose in life as a lawyer. I found that I wasn’t ready to just sit back in the rocking chair.”
“Is that when you went to work for Exoneration?”
“Yes.”
“Now, Mr. Tobin, I want to talk to you particularly about your representation of Thomas Felton. Why did you take that case?”
“Ben Chapman asked me to come to Tallahassee. He didn’t tell me what it was about, he just asked me to come. When I got there, he told me about the Felton case and asked me to look at it. I didn’t want to even look at it.”
“Why?”
“Felton was a serial killer. A lawyer has an obligation when he or she takes a case to do the absolute best job he can. There is always a possibility that you could find a technical error in the prosecution’s presentation of its case that could result in the defendant’s being released. I did not want that on my conscience.”
“But you eventually did represent Felton?”
“Yes.”
“Why?”
“Henry Wilson, my friend and my investigator, convinced me to just look at the file. Henry said I shouldn’t prejudge anybody, including an alleged serial killer. When I reviewed the file, I found a huge problem with the prosecution’s case, and I became convinced that Felton had been set up as a fall guy.”
“We’ve heard a little about this from Chief Jeffries. Why don’t you tell the jury what you found.”
“The coroner’s reports indicated that the weapon that killed both Vanessa Brock and Pedro Diaz was one-quarter inch wide and three and one-half inches long. That description is for a stiletto or a similar type of knife. The police officer who testified, Sam Jeffries, testified that the murder weapon found at the scene was a bowie knife. If the murder weapon had been a bowie knife, the cut described by the coroner would have been two inches wide, not one-quarter inch. That’s a huge discrepancy.”
“You sat here and listened to Sam Jeffries tell this jury that you made a big case out of what was basically a typing error in the coroner’s report and you were successful because the coroner was dead—how do you respond to that statement?”
“I certainly considered the possibility that the coroner’s report contained a mere typing error, but I dismissed that possibility.”
“Why?”
“There were two murders so there were two coroner’s reports. The injuries to the deceased were to different areas of the body but the descriptions of the wound, in particular the width of the cuts, were the same. It was inconceivable to me that the coroner could make the exact same error on two separate reports. I then went back to the transcript of the trial and saw that the coroner had described the wounds and testified to the cause of death, but he had never testified that the bowie knife was the murder weapon, and his reports were never introduced into evidence. Only the police officer, Sam Jeffries, testified that the bowie knife was the murder weapon. In all fairness to Chief Jeffries, he had not seen the coroner’s report nor had he attended the autopsy, so he could have believed that the bowie knife was, in fact, the murder weapon. The prosecutor and the coroner knew better. The Florida Supreme Court agreed with me on this, by the way.”
Merton stood up at that statement as Jack and Tom had figured he would. “Your Honor, I object to the witness interpreting case law on the stand.”
“He is not interpreting case law, Your Honor. He’s just stating what he understands the case says.”
“Is there a distinction?” the judge asked.
“Maybe, maybe not, Your Honor, but Chief Jeffries gave his interpretation. Mr. Tobin has now given his, and I have an actual copy of the Florida Supreme Court’s decision that I’d like to introduce into evidence so the jury can look at it for themselves.”
“The jury decides facts, not the law, Counselor. The decision of the supreme court is not going to be admitted into evidence. And I d
on’t believe I ever heard Chief Jeffries interpret the supreme court’s ruling. Therefore, I’m going to strike Mr. Tobin’s interpretation of that case. Ladies and gentlemen of the jury, I instruct you to disregard that last statement of Mr. Tobin’s where he told you the Florida Supreme Court agreed with him. Proceed, Counselor.”
The entire discussion had been in front of the jury. Tom wasn’t sure if that was good or bad. He then took Jack through his own personal ordeal of learning that Chief Jeffries’s daughter, Kathleen, had been killed.
“How did you feel?”
“Responsible.”
“Why did you feel responsible?”
“I had set the process in motion. I had uncovered the flaws in the prosecution’s case. If I hadn’t done that, Felton would still be in prison and Kathleen Jeffries would still be alive.”
“You were sure it was Felton?”
“It had to be.”
“What did you do when you heard this news?”
“First, I got drunk. Very drunk.”
“Is that when the police officers visited you?”
“Yes. I vaguely recall them.”
“Do you recall saying that you were going to kill Thomas Felton?”
“No, but I don’t dispute it. In the state of mind I was in that night, I might have killed him.”
Tom walked to the far side of the courtroom and retrieved the diagram of Danni’s backyard and the easel and set them up in front of the jury.
“Now at some point in time, soon after learning of Kathleen Jeffries’s death, did you set up a camp back here in these woods?”
“Yes.”
“Why?”
“I thought Felton would be coming for Danni Jansen next and I wanted to stop him.”
“Why did you think he would be coming for Danni Jansen?”
“She was one of the lead investigators in the original investigation, and he had threatened her and her daughter in the past. He had gone after Sam Jeffries’s daughter, and it was logical that he’d go after Danni or her daughter.”
“What did you intend to do with him if you caught him?”
“Turn him over to the authorities.”
“You didn’t intend to kill him?”
“Absolutely not.”
“Did you have a gun?”
“Yes.”
“Why did you have a gun?”
“Because I figured Felton would be armed and I didn’t think he would come with me peacefully.”
Tom then had Jack take the jury through the confrontation with Felton from the time he first saw him until he returned to the scene with Danni and was taken into custody by the police.
“Why did you shoot Thomas Felton, Mr. Tobin?”
“I thought he had a gun and I thought he was going to shoot me.”
“Can you describe what you thought you saw?”
“I thought I saw a small pistol but I can’t be sure.”
Tom then handed him State’s Exhibits #5 and #6. “I’ve handed you State’s Exhibits numbers five and six. Did you prepare those documents?”
“Yes.”
“Why?”
“Let’s take them one at a time. Felton asked me to prepare the claims bill because he had heard about them while he was still in prison. This is something we normally do when a prisoner is released, only this one was done a little earlier because of Felton’s insistence.”
“And the twenty-million-dollar figure—where did that come from?”
“It was Felton’s number. I didn’t have a problem with it because it doesn’t really matter what you ask for. It only matters what the legislature decides to give you. He wasn’t going to get anywhere near that amount.”
“And the contingency fee agreement?”
“I prepared that as well at Felton’s insistence. He wanted to compensate me for saving his life. I didn’t want the money. I told him that he should give it to Exoneration. He said they didn’t get him set free, I did. So I prepared the agreement the way he asked with the intention of giving any money that I got to Exoneration.”
“Had you ever prepared a contingency fee agreement for any other prisoner in the past?”
“No.”
“Had you always done this work for free?”
“Yes.”
“I have no further questions.”
“Cross-examination, Mr. Merton?”
“Yes, Your Honor.”
Tom was satisfied. Jack was Jack. He had answered every question directly and truthfully. He didn’t avoid the hard ones, either. Now it was time to see how good Robert Merton really was.
Merton knew Jack was going to be a tremendous witness. The man was a great lawyer and communicator. He could not afford to play with him on cross. He had to make his points, make them quickly, and get out.
“Mr. Tobin, you would agree that there are many individuals, CEOs of major corporations for instance, who make more than twenty million dollars a year, wouldn’t you?”
“Sure.”
“And yet they still go to work. They still want to make more money, don’t they?”
“Objection, Your Honor. Relevancy.”
“Sustained. Move along, Mr. Merton.”
“Let’s talk about the contingency fee agreement for a minute. You testified that you planned to transfer any money you received to Exoneration, is that correct?”
“Yes.”
“Did you tell Exoneration about that?”
“No.”
“You could have just picked up the phone and called Ben Chapman, couldn’t you?”
“Sure.”
“But you didn’t?”
“No, I didn’t.”
“And you heard Mr. Chapman testify that a contingency fee agreement like this was a violation of Exoneration’s rules and regulations and the bylaws and that you knew it was a violation—is that accurate?”
“I don’t dispute that the agreement might have violated the rules and the bylaws. I just didn’t think about that at the time.”
“So you are telling this jury under oath that a lawyer of your talent and experience never thought of talking to the organization you worked for about an agreement that you had never prepared before?”
“That’s correct.”
“You also testified on direct examination that the agreement was Felton’s idea, is that correct?”
“Yes.”
“What did he say—‘Jack, I want you to prepare a contingency fee agreement’?”
“No, he said ‘I want to give you a third of what I recover.’”
“Did he say, ‘I want to put that in writing’?”
“No, that was my idea. I didn’t want to leave him the opportunity to change his mind.”
“So the contingency fee agreement was your idea?”
“The actual agreement—yes. The idea of giving money to me was Felton’s.”
“The idea of making it a legal obligation was yours, correct?”
“Yes.”
“And do you agree that the killing of Kathleen Jeffries effectively ended any chance of getting a claims bill passed?”
“Yes.”
“And effectively ended the possibility of your getting any money from this contingency fee agreement?”
“Yes.”
“But you weren’t angry about that?”
“No.”
“You didn’t want to get even?”
“No, I didn’t.”
“You’re not a person who tries to get even?”
“No, I’m not.”
“I want to revisit your testimony on direct examination about your representation of this young man named Rudy. You said that after Rudy was executed, you became a prosecutor and prosecuted the police officer who arrested Rudy and whose testimony convicted Rudy, is that correct?”
“That’s correct.”
“Is it also correct that you became a prosecutor for the sole purpose of prosecuting that police officer and after that prosecution was over, you resigned your posi
tion?”
“That’s correct.”
“You weren’t trying to get even then, were you?”
“No, I was trying to prosecute a man who deserved to be prosecuted and who, in fact, was convicted.”
“The police officer wasn’t the only person you prosecuted over the death of this young man Rudy, was he?”
“No.”
“You also prosecuted the former state attorney who successfully sought Rudy’s execution, didn’t you?”
“Yes.”
“And at the time that you prosecuted that former state attorney, he was a sitting federal judge, wasn’t he?”
“Yes.”
“You weren’t trying to get even with him?”
“No, I wasn’t. I was seeking justice for Rudy.”
“You were not successful against the judge, were you?”
“No.”
“Is it correct that the judge you unsuccessfully prosecuted was assassinated by a sniper’s bullet six months later?”
Tom was on his feet. “Objection, Your Honor.” He didn’t ask to approach sidebar. He just walked toward the bench.
The crowd started murmuring right after Merton finished asking the question. The jurors looked shocked as well. Judge Holbrook raised his gavel and lowered it again and again.
“Silence in the courtroom!” he shouted. “If you can’t be silent, you will be removed.”
Nobody stopped talking.
“Remove the gallery,” the judge told the bailiffs who dealt with the gallery.
“Take the jury out,” the judge told the bailiff who was assigned to the jurors.
In a matter of minutes, the courtroom was empty. The press was gone as well. Only then did Holbrook speak to the lawyers.
“Mr. Merton, just what do you think you are doing?”
“Asking a question, Your Honor.”
“A question that carries the implication that Mr. Tobin was involved with the murder of a federal judge.”
“I never meant to imply that, Your Honor.”
“Your Honor, I’d like to move for a mistrial,” Tom said. “And I’m requesting that this court rule that my client cannot be retried since double jeopardy has attached.”
“Relax, Mr. Wylie. There’s not going to be a mistrial. The witness is not going to answer the question, and I am going to instruct the jury not only that it was an improper question and that they should disregard it but also that the only inference to be drawn from that question is that the prosecuting attorney committed an egregious error in asking it. Now are there any more questions?”
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