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Hit and run

Parents emerge as key in hit-run

James and Lillian Porter become crucial in the fatal accident involving their daughter.

By CHRISTOPHER GOFFARD
Published April 20, 2004

[Times photo: Stefanie Boyar]
James and Lillian Porter refused to answer questions about their daughter's role in a hit-and-run, risking the possibility of jail.
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TAMPA - The two people who could clinch the case against Jennifer Porter are those who least want to do it.

Under the law, James and Lillian Porter will have little latitude when they appear today before Hillsborough Judge Walter Heinrich. The judge has threatened to put them in jail if they refuse to give evidence against their 28-year-old daughter.

Prosecutors are eager to learn what Jennifer Porter's parents know about her role in the March 31 hit-and-run that killed two boys on N 22nd Street. Soon after the crash, investigators say, she used her cell phone to call the Land O'Lakes home she shares with her parents.

To make a case against her, the State Attorney's Office must put Porter behind the wheel of a Toyota Echo linked to the crash, a car registered to Porter's father and found days later in the family garage, stained with blood and human tissue.

Legal experts say it would be foolhardy for prosecutors to rely solely on remarks Porter and her lawyer, Barry Cohen, made at an April 5 press conference.

While Porter apologized to the victims' family, Cohen acknowledged her role in the hit-and-run in only the vaguest terms, saying she had been driving the Echo "involved in the accident."

"It was sort of an admission, it sort of wasn't," said defense attorney John Fitzgibbons. "I never heard her precisely say, "I drove the vehicle"' that struck the kids.

However, Fitzgibbons added, "If the daughter came home and said (to her parents), "I hit some people while driving the vehicle,' the case is almost entirely made for the state."

Provided, that is, the parents could be compelled to say such a thing.

They have indicated they would rather go to jail than answer the state's questions, refusing to comply with a subpoena that prosecutors issued Friday.

The parents invoked their Fifth Amendment right against self-incrimination, but experts say the legal grounds for doing so are tenuous, if not nonexistent, since they are not being asked to incriminate themselves but their daughter.

The state's subpoena offers the parents "use immunity," meaning nothing they say can be used to prosecute them in connection with the crash.

Theoretically, prosecutors still could pursue a case against the parents, for example on charges of tampering with evidence or obstruction of justice, should the evidence show they tried to cover up their daughter's role in the crash.

But legal experts say prosecutors would be unlikely to bring such charges. First, the State Attorney's Office by law would have to build the case against the parents entirely independent of their testimony. Second, because prosecutors' credibility might be damaged by the appearance that they had tried to trick the parents into testifying against themselves.

Still, Ralph Fernandez, the parents' lawyer, said he remains cautious about their potential exposure to criminal charges. That includes possible charges in Pasco County, where the Porters live and where the car was found.

"I don't have a letter from (Pasco-Pinellas prosecutor) Bernie McCabe saying they won't" file charges, Fernandez said.

In Florida, marital-privilege law prevents spouses from being compelled to testify against each other about confidences they have exchanged. That law derives from the perceived need to safeguard the sanctity of marriage, even if it means justice in a criminal court must go unfulfilled.

Like most states, however, Florida does not extend such a privilege to parent-child relationships. States like Minnesota, Idaho, Massachusetts and New York have recognized the privilege in certain forms.

During the investigation into Bill Clinton's affair with Monica Lewinsky, the plight of Lewinsky's mother, who was forced to appear before a grand jury, sparked a nationwide debate about compelling parents to testify against their children. Some asked why a society concerned with "family values" pitted parents against children who turn to them instinctively for help.

Parents are rarely jailed in such cases, but it can happen, as in 2002 when an Orange County, Calif., judge held a couple in contempt of court for refusing to testify against their son in a murder case.

Many people mistakenly believe parent-child conversations do enjoy legal protection, said defense attorney Ron Cacciatore. When young clients come to his office, he said, parents often want to sit with them. He asks them to wait outside, to prevent them from becoming witnesses against their kids.

"I think there's a great misconception by the general public that a parent doesn't have to testify against a child," Cacciatore said. "I certainly can understand the anguish the Porters are going through ... "It's in the natural order of things for a child to run home and to make a statement to parents," Cacciatore said. "But legally, I'm just not sure there's any wiggle room."

Late Monday, the Porters' lawyer said he had spent much of the day negotiating with prosecutors to resolve the impasse.

"We'll see what tomorrow brings," Fernandez said. "I can earnestly tell you (prosecutors) have been nothing but reasonable so far."

No charges have been filed against Jennifer Porter, who is an elementary school dance teacher. The March 31 hit-and-run killed Bryant Wilkins, 13, and his 3-year-old brother, Durontae Caldwell. The crash also injured their siblings, 8-year-old Aquina Wilkins and LaJuan Davis, 2.

When Jennifer Porter came forward, five days after the crash, attorney Barry Cohen lauded her "courage." But there is a sense of outrage among those who wonder why she didn't stop her car at the scene - and why she has not spoken to authorities.

"On its face that appears to be a contradiction, of course, but as a lawyer, I know why attorney Cohen doesn't want her to talk to the state," said Tom Parnell, the lawyer for the slain children's mother, Lisa Wilkins.

As a parent, Parnell said he could relate to the Porters' desire to protect their daughter. "But she's 28 years old," he said. "She should know right from wrong by now."

- Times staff writer Saundra Amrhein and researchers Caryn Baird and John Martin contributed to this report. Christopher Goffard can be reached at 813 226-3337 or goffard@sptimes.com

[Last modified April 20, 2004, 01:20:37]


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