Words can't prescribe guilt or innocence

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By HOWARD TROXLER

© St. Petersburg Times, published March 3, 2000

The prosecutor made a chart for the jury. He showed it to the judge and defense lawyer.

The chart had a list of words on it to describe the defendant. One of the words was "introvert."

But once the chart was being shown to the jury, guess what?

Without saying anything, the prosecutor scratched out "intro" in the word "introvert" and replaced it with "per."

The chart now said "pervert."

Only the jury was aware of this, not the judge or defense lawyer.

The charge, by the way, was possessing child pornography.

The defendant was convicted. He got nearly seven years.

But this act of creative editing backfired. The 2nd District Court of Appeal in Lakeland has just ordered a new trial.

The defendant, Lawrence Edward Pendarvis, was a state employee in Polk County. His co-workers were suspicious of the "guarded and secretive" way he used his computer. His hard drives were taken; they contained child porn.

Pendarvis maintained he was innocent. The defense suggested that a co-worker (who, by the way, got Pendarvis' job) had put the photographs there.

The defense lawyer did not know the prosecutor had changed the chart to say "pervert" until he watched a videotape of the trial, which had been broadcast on Court TV.

A three-judge panel of the appeals court heard Pendarvis' case and was unanimous in its disapproval.

"To underhandedly characterize him to the jury as a pervert," the appeals court said, "not only was improper in that it was obviously intended to inflame the jury, but also was a clear violation of a prosecutor's duty to fairly present the evidence and permit the jury to come to a fair and impartial verdict."

In other words: You can't prove people are guilty by calling them nasty names. Nasty names are not proof.

Many of us would agree that a man convicted of such a crime is a pervert, but the jury's job was to decide whether he was guilty in the first place.

This was a distinction lost even on the trial judge, Oliver L. Green Jr., who denied a new trial based on the use of the word "pervert" because the photographs were, in fact, perverted.

I talked to Jerry Hill, the state attorney in Lakeland. He strongly defended the case prosecutor, Brad Copley.

"Can you imagine?" Hill asked. "This is like saying you can't call someone who commits a homicide a murderer."

Hill pointed out that lawyers write on charts in front of juries all the time. It is pretty standard for the other lawyer to move around to see the same thing the jury is seeing. Nobody had tied the defense lawyer to his chair.

Deborah Brueckheimer, Pendarvis' lawyer on appeal, replies that Copley never gave a clue. He showed the judge and defense lawyer one thing, then changed it in a one-sided communication to the jury. Besides, the use of the word "pervert" alone was enough to warrant a reversal, she said.

Now the taxpayers have to foot the bill for a second trial.

The appeals court cited a 1923 ruling of the Florida Supreme Court that spoke stirringly about the special duty of a prosecutor:

• The prosecuting attorney occupies a semijudicial position. He is a sworn officer of the government, with no greater duty imposed on him than to preserve intact all of the great sanctions and traditions of the law. It matters not how guilty a defendant in his opinion may be, it is his duty under oath to see that no conviction takes place except in strict conformity to law.

• As we have seen in the news, even in federal court, some prosecutors these days believe their job is to win at all cost. Justice is not thwarted here. Pendarvis will be re-tried. If he is guilty, I hope they nail him. If he is not, I hope they lose. Either way, they have to do it with evidence, not name-calling.

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