In criminal trials, prosecutors try to keep things serious. Humor usually favors the defense. One sign I always look for is what happens when defense attorneys try to make a joke. If jurors don’t laugh, I’m on solid ground. But if they laugh with the defense attorney, I am usually in trouble. In his opening statement, McTeer ridiculed the idea that his client would be so stupid. He called the loot from the robbery “chump change,” a phrase I had never heard till then. But the jurors clearly knew it and laughed aloud along with Victor. Their minds soon seemed made up and closed to all our evidence. I began to feel bad for John Canale, who had really suffered along with the victim bank teller through her miscarriage and poured his heart and soul into the case. I couldn’t stand the idea that this violent criminal might go free to rob again. Near the end of the trial, local district attorney Frank Carlton came in to watch. I told him at a recess how things were going.
As I fretted, Frank took action. When the jury returned with the stunning but not unexpected “not guilty” verdict, Frank was ready. As the defense celebrated and the jurors smiled, Judge Keady tried to gavel the crowd to order. Frank approached the bench. “Your Honor, as an officer of the court, I’d like to know how you want me to proceed. I have a state arrest warrant for this defendant for armed bank robbery.” Judge Keady chuckled: “Has he robbed another bank already?” Carlton smiled. “No sir, this one. This verdict was pure and simple jury nullification of a good case, and we don’t intend to tolerate it. Shall I arrest him here or wait and take a chance he’ll escape out a back door?” Judge Keady never hesitated: “Arrest him where he stands.” The judge, a racial moderate vilified by what he called “confederates” as a liberal on racial matters, amazed me with his next statement, made right in the presence of the acquitting jurors: “This man clearly robbed a bank right here in our city, abused the poor black teller, and does not need to go free to rob again. Take him away.” The jurors looked surprised, then embarrassed, hearing the judge stress the loss to the teller, not the bank.
The sheriff took Johnson down the street to the state courthouse, where he was arraigned and Victor McTeer was again appointed to represent him. Since the witnesses were still around and Victor was clearly prepared, a new trial began the next morning. I was too embarrassed to go watch, but Frank called me the next day and told me the jury had convicted in less than an hour and the state judge had given the defendant a long sentence on Parchman Farm, a much worse place than any federal prison.
But what about double jeopardy? Doesn’t the Fifth Amendment say that no one shall be twice put in jeopardy for the same offense? Yes, but there is an important exception. If the prosecution is by another “sovereign,” as in the federal vs. a state government, the Double Jeopardy Clause does not apply. In federal court, the principle is called dual prosecution. If a defendant has been acquitted in state court, say for a bank robbery, he cannot be reprosecuted in federal court for the same robbery unless the Attorney General in Washington personally approves the second prosecution. But state prosecutors are not so limited. This exception to double jeopardy law has been challenged several times in the U.S. Supreme Court, but always without success. Thanks to that strange twist in the law, the bank teller received justice after all, and state-federal cooperation did its work.
Thunder Eagle Ghost Dancer Launders His Loot9
James Keith Johnson was a veteran incompetent bank robber. His main claim to fame was his use of the fake but colorful pseudonym Thunder Eagle Ghost Dancer. He was white with no Native American ancestry but apparently just liked the name. He robbed two banks in north Florida on successive days in March 1995. As he was escaping from each bank, dye packs given him by the tellers exploded. Because the money was stained red by the dye, Ghost Dancer drove all the way to two casinos in faraway Tunica to “launder” it by feeding the red money into slot machine bill validators and “cashing out,” in effect exchanging dirty bills for clean ones. It didn’t quite work out that way.
Several people at each casino observed Ghost Dancer playing the slots. At Fitzgerald’s, he hit a jackpot, winning $1,600 from one machine. Because of tax reporting requirements, casino employees made him sign an IRS report of his gambling winnings. He foolishly used his real name, James Keith Johnson, and his real social security number. The next day’s soft count of currency found several thousand dollars in dye-stained money. Both casinos reviewed their surveillance videos for anyone having a connection to the red-stained money and soon identified a man and woman who matched the descriptions of Ghost Dancer and his girlfriend, Cat Dancing, playing the machines where the dyed bills were discovered and taking large amounts of tokens to the cashiers.
Ghost Dancer testified at trial to both his gambling methods and his past legal entanglements, which included being in prison most of his adult life “for protecting women and children at Wounded Knee, South Dakota.” He also claimed he was shot “through both eyes” by a sniper in Alabama, that he was the personal bodyguard for a U.S. magistrate, and that he had suffered seventy-two broken bones while being “roasted” by federal agents. Strangely, he denied he was crazy. He also claimed he was a registered Shaman for the Creek Indian Federation and requested that he be allowed to enter the courtroom for trial in “a cloud of ritual smoke.” The judge rejected that request, along with Ghost Dancer’s proposed alibi witness, Danny “Snakeman” Schertz, a Satanist priest I had recently convicted of kidnapping and rape. The judge sentenced Ghost Dancer to five years on top of his two lengthy Florida sentences. The Court of Appeals affirmed, and Ghost Dancer was through dancing for many years.
A Stuttering Bank Robber10
At around 11:30 one morning in November 1983, bank teller Bonnie Tate saw a man wearing a jacket and baseball cap walk very fast past her drive-in window toward the front of the Bank of Commerce in Amory, though she could not see his face. Moments later, the man entered the bank through the front door. He had placed a towel with a bright flower pattern over his face. The man stuttered badly. She finally realized that he was saying, “Give me all your money or I’ll blow your goddamn brains out.” The man took the money and asked for her car keys. She claimed she didn’t have them, and he left. She watched him cross the street toward a Fred’s Store and a Big Star grocery, and rang the alarm.
Eyewitness Loretta Cribbs testified that while washing dishes by her kitchen window behind Fred’s Store she saw a man run in the direction of Fred’s and pull off a jacket and cap as he went by. Mrs. Tate later identified the red baseball cap and dark blue windbreaker as items worn by the robber. Records at the police department proved the alarm call was received at 11:34 A.M.
Eyewitnesses Charles and Mary Nix testified that for several months they had supervised defendant James Earl Kelly at a local furniture factory. They saw Mr. Kelly across from the drive-in window of the bank around 11:30 A.M. on the morning of the robbery. Kelly was close enough to their car that Mrs. Nix could have touched him. Kelly was wearing a cap and a dark jacket and walking fast. They testified that Kelly stuttered and that his speech was hard to understand, particularly for a stranger.
Eyewitnesses Elmer Walton and his brother Harvey and Harvey’s wife, Judy, all testified that at lunchtime on the day of the robbery they were in Fred’s when Kelly approached Elmer, whom he knew from the furniture factory. Kelly asked for a ride to a plant located half a mile from Fred’s. Elmer agreed to take Kelly for $10. Judy Walton noticed Kelly had a plain towel, dirty white, hanging from his pocket. When the Waltons had driven less than a block from Fred’s, Kelly told them he wanted to get out because “the police was hot on him and he had to get out of town.” He told them he had about $3,000 in cash on him from selling drugs. The Waltons did not know at the time that the bank across the street from Fred’s had just been robbed, but when they heard the news later that evening, they reported Kelly’s unusual behavior to local police.
FBI Agent Wayne Hardy interviewed James Earl Kelly the following day with local sheriff Pat Patterson and chief of police Carl We
st of West Point, where Kelly resided. Kelly gave Hardy an elaborate alibi for his activities on the day of the robbery. Kelly first told Hardy that he had driven from West Point to Aberdeen, where he arrived around 1:00 P.M. at a club called the Conspiracy Club or the Burning Spear. Kelly claimed he left the Conspiracy Club about 2:00 and went on to the Rainbow Bar to look for a dice game. Kelly told Hardy he was never in Amory at all on the day of the robbery. Hardy testified Kelly was unemployed and badly in need of money from August 1983 until the robbery in November 1983. Kelly was way behind on his car payments before the robbery but made up all his payments as well as late charges right after it.
Defense attorney Dudley Williams presented several witnesses in Kelly’s defense. His wife, Beatrice, testified that she went with him to pay bills before the robbery and arrived back at her mother’s house at 11:00 A.M. She claimed to remember the time because she did not want to miss her favorite TV program, The Young and the Restless, which came on at eleven. Jessie Moore of Aberdeen testified he too always watched The Young and the Restless, in his case because there was a character on the program nicknamed “Jazz” who supposedly resembled him. He testified that on the day of the robbery The Young and the Restless was not very interesting, so he stopped watching it about 11:15 and went to a club called the Red-Hot Pot, across the street from the Conspiracy Club. Moore claimed he saw James Earl Kelly on his way and stopped with him at a bootlegger’s place and stayed with Kelly at the Red-Hot Pot for two hours drinking.
Kelly took the stand and testified more or less along the lines of the alibi he originally gave Agent Hardy. The most notable fact about Kelly’s testimony was not its content, however, but that he stuttered and was very hard to understand. His speech pattern was identical to that described by the victim teller and the Nixes and the Waltons, and the judge had to keep asking him to repeat himself because no one could understand him. Kelly testified that he quit his job at the furniture factory after a dispute with Charles Nix and that Nix had a motive to lie against him. In an unparalleled whopper, Kelly testified he had had a sexual affair not only with the wife of Elmer Walton but also with Judy Walton, wife of witness Harvey Walton, even after he heard all of them testify that neither woman had ever met or even heard of James Earl Kelly. On cross-examination, Kelly denied that he had an unusual speech pattern saying, “I c-c-can t-t-talk f-f-fast and I c-c-can t-t-talk s-s-slow.” He insisted that he carried a towel around only to wipe off his car after going through a car wash and stated, “I n-n-never even r-r-robbed a p-p-piggy b-b-bank.”
On the night after the defense rested its case, we were all a little worried about how the jurors looked. I wondered if they thought I’d humiliated Kelly about his stuttering. The evidence was powerful to us as veterans, but to this group of mostly uneducated factory workers, we figured it was possibly confusing. I was mainly concerned that the robber’s towel had bright-colored flowers on it while Kelly’s was plain white. I asked FBI agent Hardy to try to figure out some explanation for the discrepancy overnight. He did so beautifully.
On our rebuttal case the next morning, Sheriff Patterson took the stand and blew the defense away with a towel agent Hardy had purchased the night before at Wal-Mart. Patterson first showed the jury that the towel was white on one side. Then with a dramatic flourish, he quickly flipped it over to reveal a flowered pattern on the other side, and how you would not notice it if you saw only one side hanging from his pocket and saw only the other side across a robber’s face as a mask. Several jurors gasped and began looking at each other and nodding.
The jury worried us a little by staying out for more than four hours. We had presented twenty witnesses and the defense eight, and the jurors had sent in two different notes with questions about the jury instructions, especially about what “reasonable doubt” meant. But they finally returned with a unanimous verdict of guilty.
Another Aberdeen Soap Opera and a Pair of Girbaud Jeans11
One bank robbery case I vividly recall was that of a nineteen-year-old high school graduate named Frederick Franks. His father was a successful, highly paid executive at a local factory. As the son of an affluent black family in rural Aberdeen, Franks was resented by his peers and sought to impress them. Franks was a good athlete, but that was not enough. He was educated, but as for many teenagers, that was more detriment than blessing. You had to hide your interest in ideas to fit in. To be a big man in town, Franks decided to become a drug dealer, since drug dealers had fine cars and plenty of money and women, while college graduates were something vague and far away and not quite real. To set himself up in the drug business, he needed money, but his father wouldn’t give him any unless he went to college.
Franks also needed firearms to be credible as a drug dealer and to defend himself, so he resorted to a foolish plan of financial self-help. He robbed a bank just a few miles from his house. The FBI agent assigned to the case was way more than a match for him. Leonardo “Leon” Floyd was nearly as bright and ingenious as the man he was named for. A former professional football player and Atlanta policeman, Leon was one of my all time favorite FBI agents. After interviewing the victim bank tellers, Leon and I met with local police chief Brent Coleman, who checked his informants and got a tip that Franks was the robber and why he had done the robbery. From tips out of local clubs we learned what happened. Franks had made a clean getaway in his mother’s car, hid out at home for a while, and then started buying drug-dealer clothes and guns. He treated friends to several pairs of expensive, deep-pocketed Girbaud jeans from France, then the drug dealer pants of choice. Leon and I interviewed the sales clerk who sold the jeans. She recognized Franks’s picture. The store still had some bait bills from the bank robbery in its cash register. A local prostitute also testified, fearfully, about Franks’s sudden free-spending ways. Even without a positive teller ID or a fingerprint, we got an indictment with our scared witnesses and circumstantial evidence.
At trial, Franks actually made a good witness when he took the stand and denied the robbery, claiming he was at home all morning watching TV with his ten-year-old brother. In an interview his mother refused to alibi for him, which was unusual. Franks claimed she had emotional problems, and we decided not to put her through the ordeal of trial, not knowing what she would do under pressure. We also didn’t have the heart to use an honest woman against her own son. Franks therefore called his little brother to the stand to alibi for him instead. The little fellow was clean-cut and clear-eyed and not nervous. Yet some instinct told me something was not right about his testimony.
Leon Floyd had carefully timed the route from the Franks house to the bank and back, finding that Franks could have made it to and from the bank and done the robbery in less than twenty minutes. Thus, the time he needed for his alibi was short, but it also tied him to a time frame on which I could cross-examine him. And just one mistake on the timeline would probably be fatal to his alibi defense, given our witnesses and the fact that jurors tend to disbelieve alibis from family members anyway. They always somehow sound wrong.
The little boy surprised me from the stand when I asked him a standard question: “What programs did y’all watch on TV that morning?” He recited calmly a one-hour kid show I’d never heard of followed by a one-hour episode of Days of Our Lives. “Do you remember what happened that day on Days?” I asked him. “Was Stefano on that day?” He couldn’t remember. “What about Bo and Hope?” He couldn’t remember that either and didn’t seem to really know anything about Days, hardly a kid show. The men on the jury looked at me blankly, but the women gave me knowing looks as if they appreciated that a mere male knew something about daytime soap operas. I gave silent thanks to my daughters for watching the program while we were home for lunch. I actually used to enjoy Days. My wife was appalled, however, and thought we were all low-brows for watching it, but you never know what esoteric knowledge a trial lawyer may need.
The kid show was another matter. I’d never heard of it and hesitated to cross the little boy beca
use he clearly had watched it at some point and seemed to know it. Using a normal trial lawyer tactic, I stalled till the lunch hour, hoping I would think of something to ask if given a little more time. As soon as we recessed, Leon and I talked about what to do. The newspaper! The Daily Journal in nearby Tupelo ran a TV schedule every day. I called a reporter at the Journal and he faxed me the TV schedule for the day of the robbery plus the other days of that week. Miracle of miracles, the boy had not been prepped well enough. The kid program he was talking about was on an hour after the robbery and was not even playing on the day of the robbery but the day after. It was sad to see the little boy’s pathetic, apologetic expression as he looked over to his big brother at counsel table, admitting with his eyes that he’d let him down and gotten the alibi wrong.
Closing argument was emotional. Rather than stressing the facts of the robbery, I touched on them just enough to remind the jury of them, then focused all my energy on the little brother. Who could blame him for trying to help his big bubba? I stressed the betrayal by Franks of his little brother’s innocence. That cynical act was worse than the robbery itself, I argued, worse even than his plan to betray his family by setting himself up as a drug dealer. If these selfish and destructive acts did not show the heart of a bank robber, then nothing could. The jury convicted on both the robbery and firearm charges in less than an hour.
When Leon and the chief and I got through celebrating, I drove triumphantly back to Oxford. I stopped at the edge of town at my favorite used clothing store, Carol’s Thrift Shop, referred to locally as “Chez Carole.” I asked if she had any Girbaud jeans. She had one pair in my size for $10. They were comfortable and well cut, with deep pockets almost down to my knees. They were even the right length. I wore them for years.
From Midnight to Guntown Page 9