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Passing judgment

She crashed her car, killing one man and hurting another. The victims' families wanted vengeance. Yet the prosecutor wouldn't mind if she walked out of prison today.

By GRAHAM BRINK
Published May 3, 2005


Last call in Ybor City, and two young men in town for a basketball tournament decided to hitch a ride with 18-year-old Jennifer Martin. It beat riding back to their hotel in the team van.

Martin, who was sober, climbed behind the wheel of her lipstick red Camaro and headed east on Interstate 4. The speedometer climbed passed 80 mph.

Changing lanes, her bumper clipped the back of a Toyota pickup. The Camaro rolled and slid for about 100 yards before flipping over the retaining wall and into the darkness. One of the players died. The other was permanently injured.

Some fatal accidents are just that - accidents. Others are crimes. The line between the two can be razor thin.

Some cases turn on acts of mercy.

In others, retribution wins out.

Martin, a sad-eyed young woman with a disarming smile, hadn't felt this good in months. It was April 1998 and she had just finished her first week with a travel agency. She wanted to celebrate her success at selling cruise trips.

Martin and her older sister decided to hit Ybor City. Around midnight at the Empire Club, Martin met Josh Nicola and Scott Schutt, in town from Jacksonville for the Hoop It Up basketball tournament.

Nicola was the life of the party. Gregarious and fun. Schutt was his best friend, the godfather of Nicola's elder son, Tyler. Both men were married.

Along the way, Martin got separated from her sister. Soon after, the bar closed. Martin offered the two men a ride in her Camaro. Nicola and Schutt agreed to tag along.

When the car spun out of control, the two men were not wearing seat belts. The impact threw them from the car. Schutt had to be revived by a bystander. He spent two months in a coma.

Nicola landed head-first and died at the scene. He is survived by his wife, Christina, and two young sons.

After the crash, Christina Nicola couldn't be alone. Family members accompanied her everywhere, standing guard against the waves of panic. Even when she showered, someone had to stay in the room.

"She'll never know what she has done," Nicola said of Martin, several months after the crash. "She will never know what she's done to my children's life. She won't have to deal with the suffering like I will."

Martin was no stranger to suffering.

***

Martin grew up in a middle-class family in Lakeland. She didn't get in trouble, other than normal kid stuff. She got mostly A's in grade school and played catcher on the softball team. She graduated early from high school. She cooked and cleaned in the family home.

Martin had blond hair, blue eyes and a curvy figure, but she never had much luck with men. Sometimes, she joked, she fell for "bad boys."

The quip concealed a deep pain.

Martin had been sexually molested for three years starting when she was 8 years old. The perpetrator was never arrested. It was the family secret. She doesn't like talking about those years.

At 16, she got pregnant. The father, Ross Cumberledge, was only two years older and didn't relish fatherhood. Martin did almost all of the rearing, with help from her mother.

One day, Cumberledge asked to spend some time alone with 2-month-old Taylor. By night's end, the baby was dead. Cumberledge hit her several times in the head, leaving a 4-inch skull fracture.

He pleaded guilty to aggravated manslaughter and received 15 years in prison.

Two years later, Martin's emotional gash had just begun to heal. The night out in Ybor was her first since her baby died.

***

Crash investigations can take months, especially when the driver wasn't drinking. Investigators wrestle with subjective questions: Did the driver act with reckless disregard for human life?

In most Florida cases, speeding at 10, 20 or even 30 mph over the limit is not enough to cross the threshold from accident to crime. The driver often must do more, like blow through a school zone or race another car.

Nearly a year after the crash, prosecutors charged Martin with vehicular manslaughter and three lesser counts. The case ground slowly through the system.

Hillsborough's then-State Attorney Harry Lee Coe knew the Schutt and Nicola families were upset about the delays and felt anxious about the original prosecutor assigned to the case. Coe also knew traffic cases like this one were full of potential pitfalls.

He turned to one of his top guns.

In 10 years as a prosecutor, Paul Duval Johnson had put killers, robbers and con artists in prison and had tried a handful of complicated traffic cases. He had rarely lost at trial and none of his convictions had ever been overturned on appeal. Defense attorneys called him Coe's "hit man."

The victims' families asked to meet with Johnson. Johnson explained the strengths and weaknesses of the evidence and the pros and cons of a plea deal versus a trial.

The mood, he said, was one of retribution.

The families wanted Martin sent to prison for as long as possible. He remembers them asking if the judge could force Martin to write a 25-cent check to them, every day for the rest of her life, as a reminder of what had happened.

The families' animosity, even 18 months after the crash, left Johnson uneasy. He questioned whether one bad decision should condemn a teenager to a long prison sentence. He wondered whether the families were angry because Martin had been a pretty single woman in a car with two married men.

Office policy forbade Johnson from offering a plea deal for less than the minimum sentence - unless the victims okayed it or the evidence was shaky. Johnson couldn't in good conscience tell his boss that the case had flaws. It would be a tough case, but given the facts, Johnson thought he'd win a conviction.

The case was headed for trial.

***

Two years after the crash, in a windowless courtroom in Hillsborough County, the trial began.

Martin came to court seven months pregnant. She had met the father a few months after the crash and they had later married. She would give birth after the trial.

Prosecutor Johnson set out to prove that Martin knew she was driving too fast. He outlined for the jurors how Martin was speeding through a well-marked construction zone. He hired a crash specialist, who testified that the Camaro was going at least 80 mph, well over the 5O mph speed limit. A driver testified that he thought the Camaro passed him going 100 mph.

Another witness said Martin had hit her brakes soon before the crash to avoid another car. Johnson hoped the testimony would show that Martin had warnings to slow down.

Near the end of the trial, Martin's attorney, assistant public defender Harvey Hyman, asked the judge to throw out the manslaughter count. He said the evidence did not support such a serious charge. Martin may have been speeding, but we don't put people in prison for speeding, Hyman said.

Hillsborough Circuit Judge J. Rogers Padgett wasn't sure the case needed to be charged as a felony. He also knew that, at least in his experience, jurors are angry when someone dies. They want someone, anyone, to blame.

Padgett, a veteran judge, decided it was not his place to create an exception in a case similar to many others. He let the case go to the jurors.

The next day, they found Martin guilty of manslaughter and three lesser charges.

Scott Schutt, hobbled from the crash, sobbed from the rear of the courtroom. Christina Nicola clung to family in a long embrace.

Martin dabbed at her eyes with shackled hands.

***

The sentencing hearing was one of the most emotional of Johnson's career.

He already was conflicted about the case. The two men had chosen to get in the car. No one had forced them. He doubted that either of them protested about how Martin was driving.

He wondered whether Martin really deserved prison. He already knew about how her baby was beaten to death. And just before the sentencing, he learned that Martin had been sexually abused as a child. The revelation added to his doubts.

Florida's judges must have a legal reason to depart from the state-mandated sentencing guidelines, which in this case was about 12 to 20 years. One such exception can be the victims or their families asking for a more lenient sentence.

Johnson was in an odd position. Prosecutors seldom try to persuade a victim's families to show mercy. He felt he had to try. In the end, he failed.

One after another during the sentencing hearing, the victims' relatives rose to implore the judge to make Martin serve the maximum.

A relative described how Tyler, Nicola's son, pleaded with them to build a rocket ship so he could visit his father in heaven.

Shay Nicola described how her brother's hand had felt like concrete as he lay in the coffin. His face misshapen by the impact. A baseball cap covered his battered skull. She said she could not forgive.

Scott Schutt's sister was too emotional to read her statement.

"Josh was such a charismatic person," she had written. "It's unfair Jennifer Martin made the choice to end his life."

Johnson stood silent. Speaking against the victims' families wishes would have been inappropriate for a prosecutor. But he was not going to pile on.

Hyman, Martin's attorney, argued that this was not an armed robbery or some other intentionally violent act. Martin did not set out to hurt anyone, he said.

"This is a woman who really has never caught a break," Hyman told the judge.

Judge Padgett sentenced Martin to 16 years in prison. He would say later that he did not believe he had legal grounds to vary from sentencing guidelines.

"The commodity we are providing is retribution," Padgett told the St. Petersburg Times. "Retribution for society or for the victims that remain. We shouldn't pretend it is anything less or anything more."

Hyman called the case the saddest of his 10-year legal career. At some point, he said, victims' rights simply become victims' revenge.

"We live in a society in which we have decided certain people will be sacrificed," Hyman said. "Jennifer Martin is one of those people."

***

Martin must be held responsible for her choices, Josh Nicola's sister, Shay, recently told the Times.

"She was given choices that night," she said. "She had warnings and still she chose to speed."

Christina Nicola, who has remarried, said she has "no sympathy whatsoever" for Martin. Trenton, Josh and Christina's younger son, recently told his grandmother that it's sad that his father never got to hear his first words. The comment drove her to tears.

Christina, Shay and other Nicola family members said they will actively resist any move to have Martin released early.

"Josh will never have that option," she said. "His sentence is permanent."

Sue Schutt, Scott's mother, said her son has trouble walking, talking and sometimes even putting on his shoes. He is prone to violent seizures and suffers from paranoia. He thinks people are spying on him from his attic, his mother said.

Schutt wanted Martin to show more remorse. Still, she does not hate Martin. She says she knows the crash was an accident. Josh and Scott must be responsible for their actions that night, too, she said.

She isn't ready for Martin to walk out of prison. Not yet.

"The human, emotional side of me says no," Schutt said. "The God-fearing loving side of me says I need to forgive and move on."

Martin cried most of the way to prison. She knew she should act tough in the transport van, but she couldn't do it. Another woman in the van tried to console her.

What did you do? Martin eventually asked the woman.

The woman said she had stabbed her husband nine times with a kitchen knife. He bled to death on the dining room floor.

What did you get? Martin asked.

Eleven years, came the reply.

Martin tries not to think about the trial or the sentencing. She's determined not to let the irony of her situation turn her bitter. Sometimes its hard for her not to wonder.

The man who molested her never spent a day in prison. The man who beat her baby to death got a shorter sentence than she did. And almost every woman at the Levy Forestry Camp is serving less time, sometimes for more violent crimes.

Martin spends her days at the camp, 130 miles north of Tampa, helping in the prison kitchen and practicing her drawing.

She misses little things like standing in front of a stocked fridge, the cool air flowing against her face. And, of course, her son, born after the crash and before she went to prison. She doesn't see Hunter much these days. Her estranged husband and his family don't like to bring him to the prison anymore.

Martin's appeals have failed. Her current lawyer, Melinda Tindell, hopes to get Martin's sentence reduced. She may ask for a pardon from the governor. She concedes it's a long shot.

The punishment doesn't fit the crime, she says. Tindell hasn't found any Florida teenager sentenced to such a long prison term under similar circumstances. Drunken drivers who kill people often get lesser sentences.

Prosecutor Johnson has promised to help in any way he can. The case gnaws at him like an ulcer. Even four years later, he combats a tide of emotions when he talks about the case.

"She could walk out of prison right now," he said. "And I'd be fine with it."

Graham Brink can be reached at 727 893-8406 or brink@sptimes.com.