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The Valessa strategy

How did it all turn out this way? Why was Valessa Robinson convicted of third-degree murder, while her boyfriend wound up on death row?

[photo from State Attorney's Office]
Two things not available to the jury were a video that Valessa, Adam Davis and Jon Whispel made in Valessa's room in October 1997, and a journal she started keeping as a sixth-grader.

By SUE CARLTON, THOMAS FRENCH and ANNE HULL

© St. Petersburg Times, published May 29, 2000


TAMPA -- Reaching for the small tape recorder on the table, the foreman hit "play." Valessa Robinson's voice filled the jury room.

The 15-year-old girl was explaining how she'd pinned her mother down on the kitchen floor, stabbing a knife into her throat.

And she wasn't dead yet, and so I stabbed her again twice in her back.

Over and over, the 12 jurors listened to the confession.

One of them, a 44-year-old housewife, wasn't buying it. She noticed how Valessa's voice changed as she described what Vicki Robinson was wearing when she was murdered.

Detective: How was your mother dressed?

Valessa: In her nightgown.

Detective: How was she dressed when she was in the garbage can?

Valessa: In her nightgown.

Detective: What color is that?

Valessa: Peach.

The juror heard Valessa's voice soften. She wondered if Valessa had given her mother the nightgown as a gift.

It did not sound like the voice of a brutal murderer.

[Times photo: Tony Lopez]
Assistant Public Defender Dee Ann Athan employs several props while giving her closing statement.

***

Tuesday morning, Valessa Robinson will be sentenced, five weeks after 12 jurors rejected a charge of first-degree murder and instead found her guilty of third-degree murder

It was a stunning verdict.

"I was absolutely flabbergasted," said Brian Gonzalez, a defense attorney involved in the case. "I just never would have imagined that they would have come back with third."

On the surface, it appeared the state had a strong case. Prosecutors had a long list of incriminating witnesses. A woman testified that Valessa had told her, weeks before the June 1998 murder, that she was going to get her boyfriend, Adam Davis, to help kill her mother. Jon Whispel, a friend of Adam's and Valessa's, also said that the murder had been Valessa's idea and that he had seen her holding Vicki down in the kitchen while Adam plunged a syringe filled with bleach into Vicki's neck.

Whispel said that afterward Valessa told him she was glad her mother was dead.

"Well, now I'm free," he remembered her saying. "I can do whatever I want."

Valessa herself had said she was guilty. She had given a tape-recorded statement to two detectives, saying she had killed her mother.

The case against Davis had been strong enough to easily secure a conviction of first-degree murder. In December 1999, he was sentenced to death. Whispel, in exchange for his testimony, pleaded guilty to second-degree murder and received a sentence of 25 years in prison.

For Valessa's lawyers, a third-degree conviction was a breathtaking victory. The 17-year-old defendant who faced the rest of her life in prison was suddenly looking at the possibility of freedom before her 30th birthday.

How did it all turn out this way? How did Valessa get a lesser degree, while her boyfriend wound up on death row?

The answer begins with nine words.

Nine words chosen for their simplicity and power, designed to stick in the minds of the jurors.

Nine words that may help Valessa walk out of prison as a young woman.

***

[Times photo: Tony Lopez]
Harvey Moore, hired by the defense, wrote out a Post-it note on each potential juror and moved the notes around like puzzle pieces as he tried to find the best possible jury for Valessa.

In the months before the trial, Assistant Public Defender Dee Ann Athan heard the rumbling everywhere she went

That girl killed her mother. She should fry. How can you represent someone like that?

Athan would react from her gut. How can you believe everything you read? A mother of three girls, Athan had been a teacher before deciding to become a lawyer. After nearly a decade in private practice, she took a job at the Hillsborough Public Defender's office.

She first met Valessa Robinson at the Morgan Street Jail in Tampa. She sized up her young client. Valessa acted tough, but Athan saw something else. She saw a 15-year-old girl, desperate for love. She saw teen rebellion. She saw the effects of divorce, LSD, an older boyfriend with a criminal record.

She did not see a murderer.

"From the beginning," Athan said, "she was a child."

Preparing her case, the lawyer plowed through stacks of evidence and took endless depositions from witnesses. But one important task remained.

Two months before the trial was set to begin, Athan left her office in the grimy courthouse and went to the towering Barnett building. She stepped into the elevator and went up 30 floors to an office with dark wood doors. The nameplate read:

Trial Practices Inc.

Harvey Moore, PHD.

Moore, a sociologist, was known as a jury picker. He came to court and helped lawyers select the best possible panelists from the crop before them. But he did much more. Lawyers hired him to test how juries might react to their theories. Moore helped figure which facts and themes would resonate.

Some thought of Moore's work as a manipulation of justice. Moore saw it as a matter of focus.

"People keep thinking of this as spin, as stories," he said. "All this is, is a framing device for the facts that are there."

Most of Moore's business involved civil suits that could earn him a six-figure fee. But he handled murder cases for the public defender's office for free because he opposed the death penalty.

Valessa was not facing a death sentence; she was too young at the time of the killing. Still, Moore took the case because if convicted of first-degree murder, Valessa would automatically receive a life sentence.

Athan sat on Moore's black leather couch and told him all she knew about Valessa. Moore was skeptical. Even if a jury accepted Athan's argument that Adam Davis was responsible, there was one fact that could not be changed.

"That she was there," Moore said. Valessa was inside the house when her mother was murdered. She did not try to stop it. She did not call for help. Could any jury forgive that?

Valessa did have one advantage:

Her lawyer.

As they began working on the case, Moore got a full dose of Athan's intense emotional involvement with her client. He didn't tinker with it. He liked the passion and energy. He thought it would work for Athan, and for Valessa.

"You can't put heart in a case. You can't put belief," he said. "She had such belief."

Moore would later decline to discuss all the details of his work in Valessa's case. Athan, he said, didn't want him to reveal defense strategy. But his methods in cases like these are well known.

Typically, Moore's staff of 11 begins by trying to gauge the community's attitudes about a case. They make random phone calls; they interview shoppers in malls.

Eventually, they set up a "mock jury" composed of people who have responded to newspaper ads. The mock jurors are paid $10 an hour. Lawyers try their cases before the mock juries in Moore's office, which has a replica of a courtroom, complete with a judge's bench and an American flag.

The jurors hear the case, then deliberate and reach a verdict. All the while, they are being recorded by discreetly placed video cameras.

Moore and his staff watch on a bank of TV screens. With a remote control, Moore can zoom in on a juror's frowning face, tapping fingers, a dozing neighbor.

Each mock juror uses an electronic dial, labeled 1 to 10, to react to specific arguments. A turn of the dial to 1 means the juror doesn't buy it. A turn to 10 means wholehearted agreement. Moore can separate how women, parents or older people feel on a particular point.

Sometimes, mock jurors watch a videotape of the lawyer's client testifying. Their reactions help the lawyer decide whether to let the client testify at the real trial.

When the mock jurors retire to reach a verdict, Moore and his staff see what no lawyer ever does: the intricacies of jury deliberation. As the mock jurors work through the case, Moore's staff listens. What parts of the testimony does the jury seize upon? Where are the holes? Which witnesses are seen as believable? Is there anything the jurors wished they knew, but the lawyer didn't tell them?

Moore will not say whether a mock jury was convened for Valessa's case. He will say this:

After weeks of preparation, he and Athan knew how Valessa's defense should be framed.

"The central theme, it was really simple," Moore said. "A drug-dealing ex-convict used her, sexed her, drugged her, dragged her across the country, pumped her full of LSD and said, "Take the blame for me.' "

Now they knew the message they had to communicate to the jury. Valessa was a vulnerable girl whose only crime was falling in love with the wrong boyfriend. Adam Davis and Jon Whispel had manipulated her, misled her.

In every case, Moore believed it was critical to hone the defense down to nine or 10 words. Those words had to speak the essence of the defense in the clearest, simplest terms.

What few words would capture Valessa's case?

***

The defense lawyers needed to edit their client as well

If they were going to persuade the jury that Valessa had been exploited, they would have to present a tailored version of Valessa in court. Some parts -- her age, her fresh appearance, an almost angelic calm -- would be emphasized. Others would have to be kept from the jury as much as possible.

Whether or not she had killed her mother, Valessa was hardly a helpless innocent.

Some of the most revealing details of her life were to be found in her writings. For several years before the murder, she had kept a journal. Detectives had found three volumes. When she made her first entry, Valessa was an 11-year-old sixth grader. In those early writings, she talks about boys she likes, boys who like her, her desire to someday become a singer, an actor or a lawyer. Then a hardness begins to creep into her entries. By age 13, she is writing about smoking pot, playing in a band called Dead End, running away from home.

Life sucks, I know that's the truth. The world is always setting you up for disappointment, that's why I hate living.

There still are glimpses of sweetness. She talks about going fishing with her mother's family on vacation in Michigan. She ends one entry by saying she needs to get to bed "before the cow jumps over the moon." But she also talks of losing her virginity, vandalizing mailboxes, tripping on LSD, getting arrested for petty theft, hanging out with boys who carry guns. Soon she is writing explicit descriptions of her sex life.

In these descriptions, there is barely any hint of adolescent romance or love. Valessa talks about her experiences in almost pornographic detail.

In one entry, Valessa dismisses the gender assumptions her lawyers would later use on her behalf. She describes how she and some boys are out walking one day when a police officer stops them. He takes their names, addresses and phone numbers then calls Valessa's mother.

After he got off the phone w/her he said, "Do you want to know why I called your mom and not theirs?" Then he said something like, cause you're a girl and you women need more protection than the guys. We left and I turned around to the guys and said, "Girls need more protection my ass." Months before the trial, Valessa's lawyer stood before a judge and asked that the journals be sealed. The defense argued they had no value as evidence. What's more, if the contents were made public, potential jurors reading the newspapers or watching the news could be prejudiced. The judge agreed and sealed the journals until after Valessa's trial.

Athan and her team couldn't afford any missteps. They kept a wall around their client. They cautioned Valessa's father against talking to reporters.

Silence would allow a blank canvas on which to project their case.

***

On the Friday night before the trial, Harvey Moore worked alone at his desk

He scribbled on a legal pad. He crossed out words. He turned to his computer screen, typed a few words, hit print. It was a single line on a white sheet of paper.

Saturday morning, Athan arrived in shorts, ready to work. Together, she and Moore looked at the sheet of paper.

Moore had their case down to nine words.

These men murdered her mother. Now they blame her.

Athan tried it. It clicked.

****

The day had arrived

That Monday morning in April, dozens of prospective jurors waited outside the doors of Circuit Judge J. Rogers Padgett's courtroom. Inside, Harvey Moore was setting up shop in the front row behind the defense table. He had his fountain pens, his legal pads, his laptop computer.

He was ready to help seat the best possible jury for Valessa.

The doors opened and the prospective jurors poured in, crowding onto the benches. The lawyers introduced themselves and began asking questions.

How much did the jury candidates already know about the case? How did they feel about a daughter accused of killing her mother? Could they be fair?

As the hours passed, Moore scribbled out a yellow Post-it note labeled with the name of each potential juror. He affixed the notes to a legal pad turned sideways and divided into two rows of six across, just like the jury box.

Moore moved his sticky notes around like puzzle pieces. As each potential juror spoke, he jotted a few facts. Postal worker. Dad a police officer. Has kids. No opinion about the case.

Usually, older, authoritarian types were poison for a defense. They tended to convict. But Valessa's case was unusual. Moore was looking for older people who had raised children. He thought they would be more likely to understand what happened when girls were exposed to drugs and older boys. They would understand children needed protection.

Moore had always liked electric company employees. For some reason, they seemed practical. He also liked the smiling single mom raising a 7-year-old. He was intrigued by the man who worked as a railroad bridgetender -- Moore had never had one on a jury -- and was pleased when the man said he knew nothing about the case.

Normally, Moore would have been in favor of the woman who had once worked as a waitress at a nudist resort. Wouldn't she be open-minded? But she had a relative in law enforcement. That gave him pause.

Moore huddled with the defense lawyers. Which ones would hear the themes the defense had crafted?

Finally, after 21/2 days, Judge Padgett and the lawyers had 12 jurors. Many had heard about the case. But at least most had raised kids.

Pretty good jury, Moore thought.

***

The new Valessa was introduced on the first morning of trial

When the bailiffs led her into the courtroom, her appearance -- a new haircut, a sweater set and pleated skirt, square-toed black shoes -- shocked even those she had known all her life.

"She never looked like that," her grandmother, Donna Klug, said that day. "That's not the way she dresses or does her hair."

The state saw where the defense lawyers were going and tried to head them off. In court hearings before the trial, Dee Ann Athan had repeatedly referred to her client as "this child." Now the prosecutors wanted her to stop. That first morning, before jury selection began, they asked the judge to prohibit the defense from calling Valessa a child, at least in front of the jury.

"She's a 17-year-old young woman," said Assistant State Attorney Pam Bondi.

Athan fought back hard.

"There's lots of evidence coming in that's prejudicial to this child," she said. "It doesn't mean I can't call her a child. She is."

Judge Padgett denied the state's motion.

In her opening statement, Athan relied on two of Harvey Moore's trademark tools.

Moore liked visuals. Bold exhibits kept jurors focused on defense themes, stopped their attention from wandering. He wanted Valessa's jurors to see Davis and Whispel at their most sinister, so he had blown up jail mug shots of the two men into 4-foot posters.

Now, as Athan began her opening, she used the posters for maximum impact. The posters were placed on easels. Davis and Whispel stared down the jury. Whispel's eyes were dead. Davis glowered.

Athan pointed to their faces.

"These men," Athan boomed, "these men murdered her mom . . . "

She turned toward Valessa.

" . . . and now they want to blame her."

It was the line hatched in Moore's office.

She did not mention that Davis and Whispel had been 19 at the time of the murder, only four years older than Valessa. Instead Athan called them, again and again, "these men" or "grown men." As for Valessa, Athan referred to her 12 times during the opening as a "child," another 12 times as a "little girl," once as "just a little kid" and once as a "good little girl."

"The charge is murder," Athan said. "But the case is really about our failure to protect that child."

She pointed toward her client.

"The evidence will show that this little girl could not, was not, the mastermind of this horrible event."

***

The jurors took it all in. They came from every corner of Hillsborough County. Among them was the bridgetender, the postal worker, a revenue specialist, a maintenance worker, a copy writer, a housewife, a cashier instructor for Albertson's

The lawyers studied their faces, looking for clues.

***

As the trial went on, Athan's fervor grew

"I'm not afraid of the facts of this case," she kept repeating.

But there were some facts that would not go away. As Moore had noted, Valessa had been inside the house when her mother was murdered. And Valessa fled to Texas with her friends in her mother's minivan, staying in motel rooms paid for with her mother's money. Several times, Valessa had been left alone as Davis and Whispel ran errands. Yet she never chose to leave or call the police.

If Valessa took the witness stand, prosecutors would ask all the questions she had avoided. They also might be allowed to bring in Valessa's journals and grill her on their contents.

In perhaps the most important decision of the trial, the defense ultimately decided not to put Valessa on the stand. Instead, she remained silent and let her lawyers speak for her.

As the trial continued, Athan portrayed her client as a victim, raised by a permissive mother, taken advantage of by Davis, unfairly shot at by deputies in Texas, tricked into giving her "confession."

Athan was pure emotion. Outside the jury's presence, she was pacing, raging, frequently breaking into tears. She had begun telling people that she was defending Valessa for Vicki.

At the beginning of the trial, Moore had distilled the defense's case into nine words. Now Athan had it down to two.

Poor Valessa.

***

On Wednesday, April 19, after a week of testimony, Judge Padgett gave the 12 men and women instructions on the law, then sent them into the jury room

It was 1:06 p.m.

The lawyers and family members paced the hallways. The jury in Adam Davis' trial had reached a verdict in just 2 1/2 hours. How long would it take this time?

The hours began to tick by.

***

TUESDAY: Inside the jury room

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