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CHRISTOPHER GOFFARDA rape defendant's lawyer says his client confessed to him, but told a completely different story to jurors.
TAMPA - For veteran defense attorney Jorge Chalela, it was a vexing - and singular - ethical bind.
Here he was in a holding cell at the Hillsborough courthouse, where his client, Dony Cisneros, was about to stand trial. The crime: climbing through a woman's Bayshore Boulevard apartment window and raping her at knifepoint.
Even as Chalela prepared to argue his client's innocence, the attorney said, Cisneros unexpectly began confessing to him.
"He goes, "Well, you know I'm guilty,"' Chalela said. "I say, "No, I always thought you weren't guilty.' He goes, "You never saw the tears in my eyes from the remorse?"'
Such a confession is not unusual. What is unusual is what happened next. Over his lawyer's sharp objections, Cisneros insisted on testifying. But a lawyer isn't allowed to put a client on the stand if he knows he will lie.
Chalela brought the matter to J. Rogers Padgett, the trial judge. Padgett ruled that Chalela could ethically put his client on the stand, provided he limit his questions. So Chalela asked his client just two: What is your name? What happened?
On the stand, Cisneros gave a stunningly detailed account of his innocence, insisting the Bayshore Boulevard woman had sex with him consensually.
It worked. Charged with one count of burglary and three counts of sexual battery, Cisneros sat waiting on the afternoon of April 20 as jurors returned after more than four hours of deliberation. As the verdicts were read - not guilty, not guilty, not guilty, not guilty - the accuser fled the courtroom screaming.
"She wailed like a wounded animal," said Ursula Richardson, the prosecutor. "It was a piercing wail that probably could have been heard from two floors below or two floors above." Richardson said she struggled to explain the verdict to the victim and her family.
"Essentially, the jury believed the lie he told. That's how I explain the unexplainable," she said. "If his story is what they hung their hat on, that is justice being perverted."
Cisneros, a 25-year-old Venezuelan national whom authorities describe as a serial rapist, remains in Hillsborough jail awaiting trial on other charges of burglary and sexual battery. Richardson, eager to see him punished, is prosecuting those cases too. Chalela is defending.
Chalela would not make Cisneros available to the Times for an interview.
The woman was 20, a University of Tampa student. About 5:20 a.m. on Nov. 3, 2002, Tampa police said, Cisneros climbed through the window of her South Bayshore apartment with a knife. She said she woke to find him atop her, that he held the knife to her throat as he raped her. His fingerprint turned up on the chemistry book she had been reading in bed.
Investigators matched DNA found at the scene to a saliva swab taken from Cisneros' mouth. The defense tried to suppress the DNA evidence, arguing Cisneros had not voluntarily consented to the swab. At an April 1 hearing, Hillsborough Judge Wayne Timmerman ruled the evidence could be admitted.
Cisneros faced life in prison if convicted, but prosecutors offered to let him plead guilty to the rape - and to two other incidents - in exchange for a 30-year sentence.
On April 19, the Monday morning trial was to begin, as jurors waited to be picked from a pool, Cisneros surprised his attorney by agreeing to take the deal. Chalela said he even wanted to apologize to his accuser.
The defense attorney began filling out the plea form. But the deal was scuttled over the defense's insistence on preserving Cisneros' rights on appeal.
Until the day of trial , Chalela said he believed his client was innocent, that the case involved "a one-night stand gone wrong."
As he spoke to his client in a holding cell, Chalela said, Cisneros said that he "got into her apartment and he pretty much raped her, and then she started enjoying it ..."
"He confessed to all the elements of burglary and rape. I said, "Whoa, whoa, whoa, you can't testify like that,"' Chalela said. "There's no more playing games. He's put it in my lap that he's guilty."
Visiting his client later in jail, Chalela said, he tried to explain to him that he couldn't testify if he was guilty. But Cisneros insisted.
That put Chalela in a bind, and sent him searching through Florida Bar rules. They said he could not allow a client to testify he was innocent if he, the lawyer, knew the client was guilty. That would amount to a fraud on the court. It would make Chalela guilty of perjury, a felony.
Chalela has handled some 200 jury trials, plus thousands more cases, but he said he has never faced a situation like this one.
A defense attorney often knows his client is guilty, but the client can be persuaded not to testify. And the attorney may have many clients he strongly believes are guilty, but without conclusive proof, he can still allow them to take the stand.
When on the stand, prompted by Chalela's simple question - What happened? - Cisneros spoke through a Spanish interpreter, and told an elaborate story, full of the kind of quirky details that ring of truth. He said he and his accuser had met at the Green Iguana on that November 2002 night, that she had invited him back to her apartment, that she smoked a cigarette at her computer, that he stroked her cat, that she showed him her chemistry book, that she invited him into her bedroom for sex.
He testified that she asked him if he could get her some "beans," meaning ecstasy, and grew furious when he told her he didn't understand what beans were. He said she threw him out, and that as he left, she threatened to pay him back.
"It was like a Dostoevskian, detailed, ingenious story that he had since (his arrest in December 2002) to think about," Chalela said. "He's been in jail all that time. He's very bright."
Chalela did not ask the accuser a single question, nor did he argue his client's version of events to the jury.
Instead, he argued the state could only prove that sex had occurred between Cisneros and the accuser. Was Cisneros sophisticated enough to take a screen off a window without leaving prints on it, but stupid enough to leave his semen at the scene?
The accuser, now married, sat waiting for the verdict. So did her parents. When the jury found him not guilty, she fled wailing. Chalela said his client began crying, too.
"He didn't feel good about it," he said.
Cisneros still faces two other criminal cases, one of which involves the rape of a woman in her Manhattan Avenue apartment in August 2002. Either could bring him life in prison if he is convicted.
Asked if his comments to the Times might breach attorney-client privilege, Chalela said, "what I told you is nothing more than what I said on the record (in court)."
- Times researcher Cathy Wos contributed to this report. Christopher Goffard can be reached at 813 226-3337 or goffard@sptimes.com