Barry Cohen begins by painting his 28-year-old client as a frightened woman - not a cold-hearted coward - in the crash that killed two.
By GRAHAM BRINK
Published April 6, 2004
TAMPA - If Jennifer Porter had pulled over Wednesday evening, she might have walked away without even a traffic ticket.
Instead, by fleeing from a crash that left two children dead, the 28-year-old teacher opened herself up to charges that could land her in prison for more than a decade.
At a Monday news conference, Tampa attorney Barry Cohen began the campaign to keep that from happening. He gathered the media to begin recasting his client's public image from cold-hearted coward to frightened young woman who made a bad decision.
Local lawyers interviewed by the Times praised and questioned Cohen's pre-emptive strike. Most, though, agreed that having a client essentially confess publicly before even being charged indicates the case is headed for a plea deal, not a trial.
"At this point, it's all about mitigation," defense attorney Joe Episcopo said.
Cohen's job won't be easy.
His client admitted Monday to being involved in a crash that shattered a family and left a community thirsty for answers. Investigators are still piecing together exactly what happened and have not charged her.
Cohen would not say what role Porter played in the crash.
Originally, investigators thought two vehicles hit four children as they crossed 22nd Street just after sunset. More recently, investigators said they're not sure exactly how the crash took place.
Killed were brothers Bryant Wilkins, 13, and Durontae Caldwell, 3. Their brother and sister were injured. The driver or drivers fled.
Not every fatal crash warrants criminal charges. If a person is driving recklessly and a fatal crash occurs, that driver could be charged with vehicular homicide. But if a driver is sober and operating the vehicle safely, the law says some fatal accidents are just that: accidents.
Fleeing the scene of a fatal crash is a second-degree felony, even if the driver who leaves did not cause the crash. The charge comes with a maximum 15 years in prison for each count.
"If she had stayed at the scene, she might have walked away from this whole thing," criminal defense lawyer Steve Crawford said.
According to sheriff's reports, Porter's Toyota Echo had a cracked windshield. Sometime after the crash, the car was parked behind her dance studio business, a place she didn't normally park, and appeared to have been washed, a witness said.
Defense attorney Norman Cannella said the case would be difficult for a defense attorney to take to trial. Even if witnesses differ about the details of a crash, it won't help much in defending a driver who fled the scene.
"The bottom line is either you left the scene or you didn't," Cannella said. "After that, the arguments are usually an attempt to limit the consequences."
If a driver suffers a head injury and staggers away from a crash, that might be a viable excuse, he said. Some drivers claim that they were too scared to stop.
Cohen said at the news conference that no one knows how they will react when "frightened beyond imagination."
The "I was scared" argument can work but only up to a point, Cannella said. If Porter had called the police from a nearby gas station or home immediately after the crash, that argument might fly, he said. Instead, she let days pass.
Prosecutors will be under political pressure in this case, Episcopo said. The victims were poor and black. Porter is white and graduated from college. Her family is firmly middle class.
"She can be portrayed as the wealthy woman who hired the expensive attorney," Episcopo said. "That can come across like checkbook justice."
For Cohen, this is not new territory.
He often makes his clients available for media interviews. He has successfully defended several unsympathetic clients, including a well-heeled chiropractor once charged with killing four people by carelessly crashing his 35-foot speed boat into a smaller vessel.
He led the defense of Steve and Marlene Aisenberg, who faced federal charges for lying to investigators about their missing daughter before the case crumbled under a wave of prosecutorial misconduct allegations raised by Cohen and his law firm.
He has some fodder to work with in Porter's case. She did come forward, even if it was late. That can shave time off a prison sentence, as can pleading guilty. And if she can provide information about any other drivers or how the crash took place, that too can help.
Cohen used Monday's news conference to showcase Porter's remorse. She apologized to the family, her voice soft, eyes wet. Her decision to leave the scene appears to be an aberration in an otherwise upstanding life. Great remorse and isolated incidents are legal reasons for a judge to render a lesser sentence than outlined by state sentencing guidelines.
Cohen said Porter's family tried to apologize to the victims' mother Saturday but were politely told by a family friend that it was not the right time.
"The first step in the strategy of trying to seek some sort of leniency is to deal with that public image problem," Crawford said. "The problem with the news conference can be you basically confess in front of God and county. That can limit your wiggle room if you have to go to trial."
The victims' family could play a role in Porter's fate. If they press for the maximum sentence or ask for mercy, either could have an impact on how prosecutors charge the case and what sentence the judge hands out.
Episcopo envisioned a crowded courtroom at the sentencing hearing, full of supporters from the victims' and Porter's families, each side making teary-eyed pleas to the judge.
"I would be shocked if she doesn't go to prison," Episcopo said. "On the other hand, she does have a very good lawyer."
