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By THOMAS FRENCH, CHRISTOPHER GOFFARD and JAMIE THOMPSON
Published November 20, 2005
[Times photo: Joseph Garnett Jr.]
|Lisa Wilkins rests with her daughter Aquina, 9, during Jennifer Porter's sentencing hearing Nov. 4. The hearing began at 10 a.m.; it would not end until the early hours of the next day.
|Courtroom video: Defense attorney | Prosecutor | Lisa Wilkins | Sentencing
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[Times photo: Daniel Wallace]
|Minutes before the judge returns to the courtroom to reveal what punishment he will impose on Jennifer Porter, she sits with her parents. The hearing already had lasted 15 hours.|
[Times photo: Daniel Wallace]
|Lisa Wilkins listens to testimony with one of the friends who came to support her.|
[Times photo: Joseph Garnett Jr.]
|As the sentencing hearing went on and on, the differences between the styles of prosecutor Kim Seace and defense attorney Barry Cohen became evident.
|Judge Emmett Lamar Battles was new to the criminal bench in Tampa, but he had worked for years as a judge advocate in the U.S. Army.
[Times photo: Daniel Wallace]
|Barry Cohen hugs Aquina Wilkins as she leaves the witness stand.
[Times photo: Joseph Garnett Jr.]
[Times photo: Brian Cassella]
|The marathon hearing over, Jennifer Porter's parents take her home. It is just before 2 a.m.|
Lisa Wilkins stopped her new Ford Expedition outside her daughter Aquina's elementary school. The 9-year-old climbed in waving a spelling quiz with a perfect score.
"My baby made another hundred!" Lisa said. "They can't tell us nothing, baby. She got her mama's knowledge. Ain't no man involved."
Lisa, a high school dropout, dreamed her daughter would someday attend Howard University. There was money for school now. There was money for many things that hadn't seemed possible before.
She steered the SUV into the driveway of her five-bedroom home. It was a beautiful house, at once the center of her new life and a constant reminder of her two dead sons. It was not going to change how she felt about Jennifer Porter. Anyone who thought it would buy her silence did not know her. For those who doubted her, envied her, questioned her motives, she had only defiance.
A special plate hung on the front of her SUV. It read:
You Can Hate Me Now* * *
Barry Cohen's pride was taking a beating.
In the summer of 2005, after Cohen's attempts to orchestrate a plea deal fell through, the case appeared headed for trial. Jennifer Porter was scheduled to go before a jury in late October. Now, both the prosecution and the defense were shifting into overdrive, gathering evidence, questioning witnesses, preparing their respective cases.
Cohen was furious that the Hillsborough State Attorney's Office had insisted on a three-year prison term for Porter, dismissing all of his arguments that probation was punishment enough.
By necessity, trial lawyers tend to have sizable egos. And in all of Tampa Bay, it would have been difficult to find another attorney with an ego as epic as Cohen's. He truly believed he could conquer any foe, no matter how formidable. Over the years, his self-confidence had not exactly endeared him to other lawyers, who often sniped quietly as he held forth at yet another press conference.
Time and again, Cohen had delivered on his boasts. He knew how to win.
For all his victories, though, he remained thin-skinned. Cohen was particularly hurt by the way the prosecution had informed him it was not accepting his plea proposal. State Attorney Mark Ober, a man Cohen had known for decades, had not called personally with the news. Instead, Cohen had been forced to phone the office and learn the decision from Ober's chief assistant.
For weeks afterward, Cohen trashed Ober. He said that Ober had been cowed by public pressure, by his political ambitions.
"He's got the courage of a protozoan," said Cohen.
Later, when told that he had been compared to a spineless, single-celled organism, the state attorney said calmly:
"He's entitled to his opinion."
From the start, Cohen had forged an emotional bond with his client. He saw Jennifer Porter as a misunderstood victim. More and more, he had grown to think of her almost as his own daughter.
Cohen fiercely resisted the prosecution's insistence that Porter go to prison. No, he told the other criminal attorneys in his firm, they were going to take this case to trial and they were going to win.
The other lawyers knew he meant it. Still, they harbored doubts.
This time, they told him, maybe he was wrong.* * *
Cohen had built his legal strategy around one word in Florida Statute 316.027, which made leaving the scene of a fatal crash a crime. The statute read:
The driver of any vehicle involved in a crash resulting in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash . . . Any person who willfully violates this paragraph is guilty of a felony of the second degree . . .
The word that Cohen focused on was "willfully." By now, he had found seven medical experts who agreed that Porter had left the scene because of a neurological condition, rather than by moral choice. Cohen was building a temporary insanity defense for his client. He thought Porter met the M'Naghten Rule, the common legal definition of insanity, which generally characterized it as "the inability to distinguish right from wrong."
Around Cohen's firm, most lawyers agreed that Porter probably met the insanity standard, at least immediately after the accident. Porter had told doctors that she recalled the moment when a body flew into her windshield, then her mind went blank. The next thing she remembered was her windshield cracking, 18 minutes later.
From there, the insanity defense became more complicated. After those lost minutes, Porter talked with her mother repeatedly on her cell phone. She parked her car behind her dance studio. She drove herself to work at Muller Elementary the next day, taught a dance class that night. Were those the acts of an insane person? Cohen's lawyers thought it would be a tough sell to a jury.
Going to trial posed a huge risk for Porter. During the plea negotiations, the state had offered a sentence of three years in prison. If she went before a jury and lost, she could be sentenced to as much as 15 years. Cohen's two top criminal attorneys, Lyann Goudie and Steve Romine, argued that they should narrow the risk. They appealed to Cohen's love of war imagery.
"It's time to change the battlefield," said Romine.
Porter, they said, should plead guilty to leaving the scene. Then they could focus their efforts on the sentencing hearing, where they believed their arguments would be much stronger. Sentencing guidelines called for Porter to receive at least 22 months in prison. But she could get a lighter sentence if the judge believed she had acted under extreme duress, or lacked the capacity to appreciate the criminal nature of her conduct.
Cohen's colleagues urged him to reopen plea negotiations. They wanted him to persuade prosecutors to move from their previous offer of three years in prison, to one that put a three-year cap on the sentence. Then they would try to convince the judge that Porter did not belong behind bars at all.
A sentencing hearing had several advantages for Cohen and his team. Instead of proving Porter was insane, as they would have to at trial, they would only need to show that her mental capacity had been substantially impaired.
At first, Cohen opposed the shift in strategy. But as days turned into weeks, the arguments from the other lawyers grew more urgent. In Cohen's suite, they gathered around the conference table. Voices were raised. Slowly, Cohen began to change his mind.* * *
An opening presented itself.
One day in August, Steve Romine told Cohen about a chat he'd had with Kim Seace, the prosecutor in charge of the Porter case. Romine said Seace had told him it was a shame she and Cohen couldn't sit down at Starbucks and resolve the case. Later, Seace would deny ever making such a comment to Romine. It would have been inappropriate, she said, to discuss a plea deal at a coffee shop.
Either way, Cohen sent the prosecutor an e-mail. Finally, he was ready to deal.
I know I told you in my last email that I would try to have the witness list for you by the end of this week, and if that didn't happen I would notify you. I apologize for not having the list as I had hoped I would, but frankly, some personal matters took me out of the office most of this week...
I spoke to Steve earlier in the afternoon, and he told me that you had heard that I was a Starbucks fan (you prosecutors have informants at the damndest places) and shared with me that you were also. If you would like to meet on that common ground, I would be happy to do so - I know you would have to pay for your own, so don't misinterpret my purpose.
As you know, sometimes wars are won before they begin, and I believe the timing might be right - again, it may not be, but us sitting down and talking about it will only cost each of us a couple of dollars for a Frappuccino.
Kim Seace's answer reached Cohen's inbox just before 10 the following Monday morning.
Dear Mr. Cohen . . .
Would you kindly pinpoint the date when you will have the Amended Witness List and Additional Discovery delivered to me. I would prefer to keep our current trial date, just as you would. Obviously, the sooner I get your list the sooner I can determine my ability to achieve that goal.
Not a mention of Starbucks.
Cohen decided to try again. As he recalls, he asked Seace if she would feel more comfortable meeting for a cup of coffee near her office in the courthouse cafe.
If you want to see me, she replied, you can make an appointment.
Cohen swallowed his pride.
"When do you want to come over?" Seace asked.
"Now," Cohen said.* * *
Seace took Cohen's offer to her boss, Mark Ober. Porter would plead guilty if the state agreed to a maximum prison sentence of three years.
Ober put the question to his top prosecutors. They knew juries were unpredictable. Further, the prosecutors reasoned, even if they won at trial, they would ultimately find themselves in the same place: standing before a judge who would decide Porter's sentence.
The consensus: Take the deal.* * *
Once the plea was made official, talk radio ignited. Only three years for running down four kids? Who had okayed this sweetheart deal? Lost in the buzz was a clear understanding of the charge Porter faced: leaving the scene, not killing Bryant and Durontae. The distinction, so crucial in court, did not play well on the airwaves.
Lisa Wilkins listened to the radio, getting angrier and more defensive by the second. The prosecutors had asked and received her approval for the plea deal. But now she felt the callers were attacking her, holding her personally accountable for seeing that justice was carried out.
She called her lawyer, Tom Parnell. Could he undo the plea?
Parnell said it was too late. He told her to turn off her radio.
As the sentencing approached, Lisa's dread grew.
She wondered what she would see in Porter's face. Her feelings about Porter - and what sentence she deserved - vacillated wildly. Depending on the week, fury or forgiveness ruled.
Everyone wanted to know what she would say before the judge. Nobody could be sure - not the state, not the defense, not her own lawyer. It was probable that Lisa herself did not know.
From the start, she had feared that Barry Cohen would bend justice to his will. She could hardly bear to speak of him by name.
"I call him That Man," she said, " 'cause he's the devil himself."* * *
Barry Cohen walked over to Lisa and extended his hand.
Seated in the front row of the courtroom, just behind the prosecution's table, Lisa seemed to hesitate for an instant. Then she surrendered her hand and watched as the defense attorney kissed it.
"I know you're hurt," he said softly.
Next Cohen turned to Aquina, huddled close by, and touched her cheek.
"Nice to meet you," he said.
"Nice to meet you," Aquina answered politely.
It was the morning of Friday, Nov. 4. The sentencing hearing was to begin at 10. Jennifer Porter entered at 9:52 through the back door, walking unsteadily in heels to the defense table and taking a seat between Cohen and a big-shouldered bodyguard. Her eyes stared downward. Her parents and sister sat in the rows behind her.
Circuit Judge Emmett Lamar Battles, a former military man, entered right on time. He had less than a year's experience on the adult criminal bench, so there was little record to hint at what he might do. The son of a Greyhound mechanic, Battles put himself through the University of Florida law school on an Army scholarship. He worked for years as a judge advocate for the Army before Gov. Jeb Bush appointed him to the circuit court.
Now, from the bench, Battles looked out across the crowded courtroom.
"Is the state ready to proceed?" he asked.
Kim Seace said yes.
"Is the defense ready?"
"We are, your honor," said Cohen.
His first witness was Lillian Porter, who wept quietly as she described her daughter as a model child who did not drink or do drugs.
"She just always did everything that was expected of her."
When it was his turn to testify, Mr. Porter talked about their family, how he and his wife taught their daughters to do the right thing, to treat people with dignity, to never lie. How Jennifer had never given them a moment's trouble.
"She was a very good child, a very good person," said James Porter, speaking of his daughter in the past tense, as though she were not sitting across the room at the defense table. "She was a very kind-hearted young lady."* * *
Shortly before noon, Cohen took a gamble. He called Aquina Wilkins to the stand.
The 9-year-old walked across the courtroom and sat in the witness chair. She wore a pink v-neck sweater, blue jeans and golden bangle bracelets. She did not seem the least bit intimidated. A bailiff lowered the microphone for her.
Cohen mispronounced her name, and she corrected him. A-quee-ah-nuh . She called him "sir." He asked her to tell the judge anything she wanted.
"When my brothers got hit, I didn't think - " she began. "I thought their arms was just gonna be broke or something, and they'd come back home with us. But they didn't come back home. They got to go in Heaven with God . . . I told my brothers nothing never bad could happen to us, and we'd stick together forever. And then out of nowhere she came and took it all away."
Cohen asked Aquina if there was anything else she wanted to say.
"I think she needs to get punished because I get punished if I don't clean my room up."
When she finished, Cohen smiled. "You're a beautiful little girl," he said, "and we hope that everything for the rest of your life is nothing but happiness."
He looked at the young witness.
"Can I get a hug?" he said.
Aquina granted him one.* * *
Like everyone else, Cohen did not know what Lisa Wilkins was going to say. But he put her on the stand now and invited her to speak her mind.
Lisa began by talking about forgiveness.
"I had prayed about this before I came," she said. "God would never forgive me a bitter tone in my voice about this whole situation."
She wondered why Porter had driven away. She said their two lives were now linked.
"Me and this young lady, Jennifer Porter, we are both going through this."
Several times, Lisa referred to Porter by her first name. She said she forgave her.
"I really feel sorry for Jennifer. I really do," she said. "Because in my heart, I feel she did not do this purposely."
Lisa asked Cohen if he understood what it was like to lose a child.
"It hurts. It hurts, " she said. "But I got to forgive, and I forgive Jennifer."
Lisa said she wanted to be left alone. She said she wanted Bryant and Durontae to rest in peace.
"They're gone. They're gone." She shrugged. "That's it."
Cohen looked at the witness.
"I don't know what to say - " he began.
Lisa cut him off.
"Don't need to say sorry, okay?" She looked over at Porter. "If she would have only told the truth from the beginning," she said, "we wouldn't have been going through this."
Cohen knew when to be quiet.
"Thank you, on behalf of Jennifer."* * *
Kim Seace turned to the question of punishment. In Lisa's first minutes on the stand, she had not said what sentence she wished for Porter. All she'd said was that no matter what the judge ordered, it would not bring her sons back.
Seace was not satisfied with that answer. Hadn't Lisa told her the day before, the prosecutor asked, that it was very important to her that Porter go to prison for the full three years?
"Yes," said Lisa. "I did."
"Did you tell me yesterday you would be devastated if she walked out of here on probation?"
"Do you agree with me that your forgiveness is different from your punishment?"
Lisa nodded. It said so in the Bible. She was growing more agitated, leaving behind the calm she'd shown a few minutes before.
"Tell me what you want," said Seace.
"I want her to be punished," said Lisa. "I want her to go to prison. I want her to see what it's like to lose someone."
An edge had entered her voice.
"My kids are gone," she said, "and somebody got to pay for it."* * *
The hearing stretched through the day and into the night.
From the bench, Judge Battles looked forward, his mouth a thin straight line. It was impossible to read his expression. Occasionally, he glanced over at the defense table, his eyes lingering on Jennifer Porter.
She sat like a statue, staring into space. She did not turn around to look at her parents. When a stream of friends and relatives walked past, on their way to the witness stand to testify to her character, she did not look up, did not smile at them, did not seem to see them.
Just like her father, the character witnesses seemed to be talking about someone whose memory hovered close but who was not physically present. Fighting back tears, they seemed to be delivering eulogies.
On a large screen, little girls talked on video about how much they loved their dance teacher, "Ms. P." When asked why, one of the girls replied: "Because she does awesome moves." Hearing it, Porter smiled for the first time in hours.
A large portion of the sentencing hearing was dedicated to the defense's lineup of medical experts. For hours, Cohen calmly posed question after question.
At twilight on that evening in March 2004, they agreed, Jennifer Porter was not a woman intent on leaving dead children in the street. Driving down 22nd Street, she had seen the body hit her windshield and then suffered an acute stress reaction, driving away on automatic pilot.
As the psychiatric testimony began to accumulate, each of Cohen's experts echoing the others, often word for word, the nature of the state's disadvantage in this setting became obvious.
Had Cohen used an insanity defense at trial, prosecutors by law could have subjected Jennifer Porter to questioning by a psychiatrist of their own choosing. They would have had advance access to the defense doctors' findings in time to challenge them with counter-experts.
Cohen had prevented that by taking the case straight to sentencing, where the rules of evidence were far more relaxed. Cohen did not have to surrender Porter to a state exam. Until today, he had not been required to share his list of doctors.
Against Cohen's barrage of experts, therefore, Kim Seace had no one to call. At best, Seace could use cross-examination to expose inconsistencies. She noted that Porter got into a car the day after the hit-and-run and drove to school. If she really suffered a traumatic reaction, wouldn't she avoid the neighborhood where she struck the kids? If she told her mother she couldn't face seeing a body in the street, wouldn't that suggest she was using her brain?
Repeatedly, Seace returned to how Porter had parked her damaged Echo behind her dance studio, rather than in front where she usually parked. To Seace, it was the strikingly obvious gesture of someone attempting to conceal her guilt. Seace's face showed a pronounced incredulity as defense experts refused to concede the point.
"I don't think her intent was to conceal," said one.
"The decision was to conceal her shame," said another.
"I don't think she concealed the car to conceal a crime," said a third, a psychologist named Michael Gamache.
On cross, Seace asked Gamache how much he was charging the defense for his expert testimony.
Two hundred dollars an hour, he said.
"What's the meter up to right now," the prosecutor asked.
"I'm guessing around $3,000 to $4,000."
Cohen stood up. Wasn't it true, he asked, that the psychologist had also been hired to provide expert testimony to prosecutors around the state of Florida? Yes, said Gamache. In fact, had he been hired by the same State Attorney's Office where Seace worked? Yes, said the witness.
"Does the money that they give you," Cohen said, "does that influence your testimony in those cases?"
"No it doesn't," said Gamache.
"Any more than it has tonight?"
"It doesn't, period."* * *
As midnight approached, and fatigue overtook almost everyone in the room, Cohen just kept going.
All the qualities that sometimes irritated even his friends - the strutting, the air of superiority, the relentless need to manage every microscopic detail - seemed to have vanished from Cohen's persona. He was calm, focused, open. He seemed almost humble.
Throughout the hearing, he had made deliberate attempts, some more graceful than others, to show deference to virtually everyone in sight. He had made a point of acknowledging Lisa Wilkins and her loss. Though in private he despised Kim Seace, he was polite to her on this day as well. Even random sneezes met with his concern.
"Bless you," he would say, turning to whomever it was.
Seace questioned many of the defense witnesses with a dismissive air, sighing at them, addressing them with exaggerated patience, as though she were talking to children.
With Cohen, her manner veered from condescension to outright contempt. Once, when Cohen asked her for the page number of a transcript so he could follow along, Seace made a show of rolling her eyes.
"Eighty-three, line nine," she said, as though Cohen had just asked an idiotic question.
Seace barely glanced at Jennifer Porter. The prosecutor mocked her as "this lover of children." Even Lisa Wilkins, whose children had died in the accident, had acknowledged Porter's humanity.
At one point, Seace was cross-examining Lycia Alexander-Guerra, Porter's personal psychiatrist, the prosecutor noted that the doctor was on the verge of tears as she'd testified about her patient's guilt and remorse.
"That's true," said the psychiatrist.
Seace asked if Alexander-Guerra was emotionally attached to her patient. The doctor agreed that she was. She gets attached to all of her patients, she said.
But that wasn't the only reason the case upset her, Alexander-Guerra said. She looked toward Lisa Wilkins, listening in the front row.
"I'm emotionally attached to the idea, as anyone would be, of someone losing her children."
Here the doctor paused.
"I'm a mother," she said, emotion rising in her voice. "When I think not only about the tragedy of Ms. Wilkins, but the tragedy of what has become of Jennifer's life, both of them upset me.
The moment was revealing. Seace had spied the psychiatrist's tears and thought she had found an opening to discredit her. In fact, the witness had merely been stating a truth that Seace did not seem willing to concede.
Like Lisa Wilkins, Jennifer Porter was suffering.* * *
Finally, after 15 1/2 hours, the courtroom was quiet. The lawyers were done. Judge Battles had retired to his chambers to consider his decision.
Cohen paced beside the defense table, waiting. After all these years, he still hated it, feeling so out of control. If he had failed, his client would not go home tonight. As if realizing this, Porter rose from her seat. She walked back to the courtroom gallery and sat for a moment between her parents. Her sister walked over, kissed her on the cheek.
At 1:26 a.m., the judge returned. The courtroom was still packed. The emotion and grief of the day had left everyone depleted, spent, numb.
Battles glanced down at his handwritten notes on a legal pad. He turned toward Lisa.
"Ms. Wilkins, you were right this morning when you said that absolutely nothing we do here today - nothing this court does - is going to bring your precious children back. And I'm going to go ahead right now and offer you, after seeing you and your family today, the appropriate, heartfelt sympathy for all you've lost and all you've gone through. . . ."
He turned to the defendant.
"Importantly, I want everyone to understand, because I think it has to be a starting point, that you, Jennifer Porter, are being sentenced today for leaving the scene of this horrific crash. The state attorney did not charge you with causing the deaths of these children, and you are not being sentenced for that today. It's a very difficult thing, I think, for some people to grasp. But that is the truth of it. And it's what this court must consider. If you were being charged with those deaths, it's fair to say that the result would be far different . . ."
"As to the sentence," the judge continued, "the court is giving weight to the offense and the associated facts and circumstances as they have been presented. The appropriate weight is also being given to the testimony of the victims, Ms. Wilkins and Aquina, and their testimony and their concerns today. And as I am required to do, great weight is given to the fact that Jennifer Porter has no prior criminal record . . .
"Based upon the testimony the experts presented here today, as well as all of the facts presented . . . the court is going to find that Jennifer Porter, indeed as the doctors have described, suffered extreme trauma at the moment of this horrific event. And the only reading of the evidence can be that indeed as she left, she was under what the law would recognize as extreme duress.
"And that this offense, as horrible as it is, was committed as soon as she left that scene, not the next day, and the day after that . . . It was in fact committed in an unsophisticated manner, and for her, in her history, was an isolated incident. The court will find . . . that she has expressed remorse. In simple terms, the court will find that statutory mitigating factors are present which permit a downward departure from the guideline sentence . . .
"You will be sentenced," the judge concluded, "to two years of community control, followed by three years of probation. As special conditions of your supervision, you will perform 500 hours of community service work . . . This is the judgment of the court today."
Once she heard that the judge was ordering Porter to probation and house arrest, Lisa Wilkins rose from her seat and left the courtroom. Kim Seace lowered her head and closed her eyes. Cohen broke into a smile.
Jennifer Porter stared forward, her face an unreadable mask.EPILOGUE
For a few days after the sentencing, Kim Seace kept the detached hood of the Toyota Echo in her office, along with boxes of evidence labeled State v. Porter . The material would soon be moved to storage. Other cases were already crowding her message board: traffic crashes, drunk drivers, deaths. There were bereaved parents to warn, as gently as she could, that justice was neither fast nor perfect. Most cases would not warrant newspaper stories.
In his nightstand at home, Barry Cohen keeps a copy of a letter Jennifer Porter wrote him thanking him for his help. The Porters have paid some expenses, but they do not cover the hundreds of thousands of dollars Cohen says he spent. He says the Porter case might be his swan song in the criminal arena, but makes no promises.
Lillian Porter has filed for bankruptcy. It's not clear if the legal expenses played any role in the filing.
Jennifer Porter and Lisa Wilkins, just a year apart in age, now live less than three miles from each other.
Porter is confined to her parents' Land O'Lakes home, though she is permitted to attend church and teach at her dance studio. As a convicted felon, she could no longer teach in Hillsborough's public schools.
Lisa lives with her children at the end of a quiet suburban block. For years, she dreamed of having a big house just like this one, with a room for each of her kids. She weeps, considering it.
"Funny how you get things, huh?" she says.
The homeowners association in her neighborhood has sent her letters, reminding her to water her lawn and weed her yard.
She does not have to worry about money for now. She thinks people expect her to be happy, but in her new house, she feels more isolated than ever. She has come to distrust almost everyone, including her friends. She still believes that your children are all you can trust, all you have.
"I would like," she says, "to create my kids all over again."
She is newly pregnant. Her eighth. She touches her stomach, feels the baby move. She thinks of Bryant and Durontae and how they passed through her body and into the world and into their graves.
[Last modified November 20, 2005, 06:32:07]
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