tampabay.com

'Bizarre' defense means new trial

Former Tampa police Officer Ernesto Hedges, convicted of molestation, gets a second chance. The judge cites his lawyers' "horrifying conduct."

By JAMIE THOMPSON
Published December 13, 2005


LARGO - In her 27 years as a lawyer and judge, Circuit Judge Linda Allan had never heard such offensive, bizarre and flawed arguments.

Ernesto Hedges, a former Tampa police officer, was accused of molesting two 9-year-old girls during a family gathering. Hedges, 50, faced spending the rest of his life in prison.

His defense team seemed ill prepared. One attorney, known as the "Traffic Ticket King of Tampa," had never tried a sex abuse case. He had taken no depositions, hired no experts and had no idea Hedges faced a mandatory prison sentence of 25 years until it was announced in court.

During the trial, Allan chided Hedges' lead attorney, Jorge Chalela, for appearing to convict his client. "I believe you used the words, "it happened,' and I think what you really meant is that it allegedly happened or allegations took place."

In rambling closing arguments, Chalela talked about everything from Socrates to semen to his own testicles.

The jurors, Allan noted, looked stunned. It took them 40 minutes to convict Hedges.

Now, Allan has ordered a new trial for Hedges based on ineffective counsel, a rare occurrence. She noted that Chalela didn't seem to understand the law.

"Because of the inexplicably bizarre, offensive ... horrifying conduct of defense counsel during the trial, the jury's findings can't be considered reliable," Allan said.

On Monday, Allan set Hedges' bail at $150,000, took his passport and ordered electronic monitoring.

* * *

On Feb. 26, Hedges attended a family gathering at a Clearwater home, according to police reports and court records. Hedges began playing with the two girls, having pillow fights, tickling and wrestling.

Hedges stayed overnight after having too many beers. He sat between the two girls on the living room couch as they watched a mob movie, The Rundown .

No one noticed, one of the 9-year-olds said, when Hedges put his hand beneath the blanket, then inside her underwear. He rubbed over her underwear for "like the rest of the night," she later told a detective.

"I'm like, "Ernie, what are you doing?"' she told the detective. "He's like, "Oh, I'm just tickling you,' and he wasn't really tickling me."

Her friend also said Hedges rubbed her. They said he did it again the next morning.

At one point, Hedges pointed to a bruise and said aloud that the girls had kicked him. One girl said, "Yeah, but you stuck your hand up our pants."

An adult heard the comment and questioned the girls. At first, they downplayed what had happened, according to one adult. One girl said Hedges had not rubbed or caressed her.

Still, the mother of one girl called police.

In separate interviews, the girls told detectives Hedges had rubbed them inappropriately.

Hedges agreed to a taped interview without an attorney and said it was just horseplay.

He said he went to give the girls a "wedgie," and one of the girls told him to stop so he did.

"I got as far as sneaking in to go find the underwear," he told a detective.

"Okay. "Sneaking in' as in under a blanket or under their shirt or what?" the detective asked.

"Under their - their - their pants, whatever they're wearing," Hedges said. "But I never touched their genitals, and I never intended this to be a sexual situation."

He was arrested on two counts of lewd and lascivious molestation.

* * *

Attorney James Thomas was a former cop who knew Hedges from the Tampa Police Department. He specialized in traffic tickets, but offered to represent Hedges for free.

To Thomas, it looked as if the case might just go away. Some of Hedges' relatives remained supportive. They weren't sure the girls would testify. They decided not to waive speedy trial, a move typically meant to catch prosecutors flat-footed.

But as the August trial date neared, Thomas began to worry. He approached another lawyer, Jorge Chalela, who had worked on sex abuse cases at the Hillsborough Public Defender's Office.

Thomas begged Chalela to help, offering to pay him $3,500 in stocks. Chalela agreed.

The attorneys began to panic several days before the trial, when all of the state's witnesses showed up to testify during a hearing.

"Any hope that I had for Mr. Hedges' ability to beat this case, so to speak, was completely lost," Chalela said in court Friday during a review of the case.

Chalela believed that they needed to waive speedy trial and take more time to prepare.

In the end, they didn't.

Hedges said his lawyers decided to go forward. The attorneys, however, say it was Hedges who insisted.

Either way, on Aug. 24 they went to trial in Pinellas-Pasco Circuit Court.

From the start, it seemed as if Chalela didn't believe Hedges was innocent. (The two men had not met in person before the trial started.)

In his opening statement, when Chalela discussed whether Hedges had any "bad intent," he told jurors: "Maybe, probably, most probably, eh, who knows?"

Chalela also argued that Hedges had not touched the girls' vaginas so jurors could not convict him. But the law specified the "genital area," which both girls said Hedges had touched.

Also, Chalela failed to convince the judge to allow him to introduce evidence about the less serious statements the girls had allegedly made.

But perhaps the most disastrous part was Chalela's closing argument. He paced the courtroom, almost manic, wildly animated and loud-speaking, Allan said. His statements were a random string of disturbing and peculiar thoughts.

At one point, he marched into the audience and clutched Hedges' family members, hoping to show they supported him. Allan looked at the prosecutors, who seemed about to object. But one prosecutor touched the other's arm, as if to say, No, don't stop him.

Allan glanced at the jurors. They looked appalled.

* * *

After Hedges was convicted, his relatives called Barry Cohen's law firm in Tampa. Steve Romine agreed to take the case.

In court on Friday, Thomas, the traffic ticket lawyer, said he was devastated by the outcome of the trial and had regrets about their strategy. He looked over at Hedges and apologized for not going to see him after the trial.

"I should have come," he said.

When Chalela took the stand, he defended his performance. He said the facts hadn't looked good for his client, and he did the best he could. "You're looking at black and white transcripts," he said. "I was there living and breathing it."

After the 12-hour hearing, Allan ordered a new trial.

Charles Rose, a professor at Stetson University College of Law, said it's rare for a judge to order a new trial based on an argument of ineffective assistance of counsel.

"It's very uncommon," he said. "You have to have an error that was harmful."

Still, Rose said Allan was the perfect person to order a new trial in the case.

"Who would know better than the judge who heard it?" he said.

--Staff writer Chris Tisch contributed to this report.