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GRAHAM BRINKA trial may be risky for Jennifer Porter, but a plea may not save her either.
TAMPA - Jennifer Porter has admitted being involved in a hit-and-run accident that left two brothers dead. She does not dispute that she left the scene. And it has been revealed that she called home minutes after the crash and told her sister's boyfriend that a body flew at her windshield.
Given those facts, won't prosecutors simply wait for the trial to secure a conviction on the charge of leaving the scene of a fatal crash?
Not necessarily.
Trials come with risks - for both the prosecution and the defense. And it's often more judicious for all the parties involved to agree to an alternative solution. In this case, that could mean a plea deal or Porter throwing herself on the mercy of the court in what's called an "open plea."
"I don't think there is any easy answer to how this will unfold," said lawyer Joe Episcopo, who has followed the case. "The tactical decisions can be based on a lot of different factors, even which judge gets the case."
Porter was charged on April 28, four weeks after the March 31 crash on 22nd Street that killed Bryant Wilkins, 13, and his 3-year-old brother Durontae Caldwell.
Prosecutors decided that there was not enough evidence to sustain vehicular homicide charges. There was no evidence that Porter was intoxicated or driving in a reckless manner, requirements for such a charge.
That left the one count of leaving the scene of an accident with death, a second-degree felony. If convicted, Porter faces 22 months to 15 years in prison, according to state sentencing guidelines.
If the 28-year-old elementary school teacher goes to trial, her attorneys likely will have two main issues to address: Why did she fail to stop, and why didn't she call authorities right away?
"If she can provide a satisfactory answers to those questions, it could be a very defendable case," said Tampa attorney John Fitzgibbons. "If she can't, then obviously there would be little point in going to trial."
Porter could argue that she was scared and not thinking clearly. She also might claim that stopping would have put her in physical danger from angry bystanders.
In some other hit-and-run cases, drivers have claimed they didn't know what they hit. In Porter's case, that might be a stretch, Fitzgibbons said.
First, the crash took place on a busy residential street. Second, the boyfriend of Porter's sister said Porter told him minutes after the crash that a body flew into the windshield of her car.
Explaining away the delay in coming forward could be equally difficult.
Prosecutors could emphasize that Porter had a cell phone and easily could have called authorities. Instead, the first contact did not come until two days later, from Porter's lawyer, as investigators were zeroing in.
"The prosecutors could make a strong argument," Fitzgibbons said. "It could be very difficult for her to counter."
Going to trial poses another risk for Porter.
Judges are often less likely to cut a defendant a break if they are convicted at trial. And trials can inflame the emotions of the victims' family members, who are often allowed to express their feelings to the judge at sentencing hearings.
"It's harder to convince a judge that you're remorseful after making the victims' family sit through a trial," Episcopo said.
If Porter wishes to forgo a trial, she has two options.
She could strike a plea deal with prosecutors. This is the way most cases end today.
Both the prosecution and the defense must agree on the deal's terms, which can include a recommended sentence. The victims' families also get a chance to sign off on the deal.
For Porter, the appeal of a plea deal is obvious - her attorneys might be able to negotiate a sentence that she finds palatable. But why would prosecutors make a plea deal in a case as clear cut as this?
Prosecutors often do so to avoid putting the victims' family through a trial, in which the tragic events are recounted and recreated in painful, graphic detail. A deal also eliminates the possibility of a surprise development at trial - a balky juror, for example, or witnesses whose testimony falters under cross-examination. Porter has retained attorney Barry Cohen, who has a reputation for coming up with nimble and aggressive defenses.
In most plea deals, the judge agrees with the negotiated terms, giving the recommended sentence or something close to it.
"The idea is that if prosecutors and the defense agree, then that is justice for all," Fitzgibbons said.
Porter's other option is to make an open plea to the judge. In such a scenario, Porter would admit to the crime and she would face a hearing to determine her punishment.
Her attorneys would likely make a lengthy presentation in an attempt to get a sentence less than the maximum 15 years. They would be able to point out that Porter is a dedicated teacher with a clean record. The hearing also might include expert testimony about how people often panic in situations such as Porter's.
Porter's attorneys could attempt to lessen her role in the crash by presenting evidence that suggests she may not have been the only driver involved.
Immediately after the accident, investigators said more cars may have been involved. Although investigators later said they had come to think Porter's car was the only vehicle to hit the children, the initial search for more than one car could provide fodder for Cohen.
Another possible line of argument for the defense is to tell the judge the crime was was an isolated incident for which Porter has shown remorse. (She publicly apologized after coming forward.)
If convincing, that argument could give a judge grounds to impose a sentence below the recommended guidelines.
Porter's "best chance of staying out of prison, is for the victims' family to ask for mercy when it come to sentencing," Episcopo said. "Short of that, it will be an uphill fight."