competent experienced counsel for individuals on death row. Some of them have never had that before. Second, but equally important, we try to shed light on the inadequacies of the criminal justice system with the ultimate goal of eliminating the death penalty as a punishment. We have cases that deal with inadequate defense counsel, improper identification, overzealous prosecutors—”
Robert Merton got the picture when he heard those words. “Objection, Your Honor. Mr. Wylie is trying to precondition the jury with this testimony.”
The judge thought about it for a moment. “Sustained. Mr. Wylie, I believe the jury understands that Exoneration represents death row inmates. Let’s move on.”
“Yes, Your Honor.”
He asked Chapman, “Did Jack Tobin work for your organization?”
“Not in a technical sense. Jack wasn’t our employee and we didn’t pay him a salary. He was an attorney who volunteered with us to represent death row inmates. He’s been with us for about five years or so and he is an excellent attorney, the best we have.”
“I move to strike that last statement, Your Honor,” Merton said without standing up.
“Motion granted.” The judge looked at the jurors. “Members of the jury, I’m directing you not to consider those statements by the witness about Mr. Tobin’s abilities as an attorney.” He then addressed Tom. “Mr. Wylie, I want you to control your witness a little better than that.”
“Yes, Your Honor.”
“And Mr. Chapman, I’m instructing you to answer the question and only the question asked. There will be no more editorializing, do you understand?”
“Yes, Your Honor.”
“Let’s proceed.”
Tom only had a few more questions to ask Ben Chapman.
“Is it accurate that Jack Tobin has represented a number of people on death row?”
“Yes. I’d say at least ten.”
“Have you ever known him to profit in any way from representing these people?”
“No. Never.”
“He donated his time for free?”
“Yes.”
“I have no further questions.”
“Cross-examination, Counselor?”
Robert Merton stood up and walked to the podium with an air of confidence. Merton had made his reputation as a prosecutor primarily because of his ability to effectively cross-examine witnesses. Sometimes he tore them apart, making them look like liars—snakes who slithered off the stand when he was finally through with them. Sometimes he used them to support his own case. It all depended on the situation.
“I think the question you were just asked, Mr. Chapman, was have you ever known Jack Tobin to profit from representing death row inmates. Is that accurate?”
“Yes, that’s correct.”
“Which leaves open the possibility that Mr. Tobin could have profited from this representation and you might not have known about it. Is that correct?”
“I doubt that very much. I have known—”
Merton cut him off. “You doubt it very much. I’m going to hand you State’s Exhibits numbers five and six. Have you seen these before?”
Chapman took a few moments to review the documents.
“No, I haven’t.”
“So you didn’t know about them?”
“No.”
“Exhibit number five is a document called a claims bill. Are you familiar with a claims bill?”
“I’m not familiar with this one but I am familiar with a claims bill.”
“And what is a claims bill in the context of what you do?”
“If an individual on death row is exonerated, we almost always file a claims bill with the Florida legislature asking that body to compensate the individual for the time he or she was wrongfully incarcerated.”
“And Exhibit number six. Do you recognize that document?”
“I have never seen this document but I recognize it as a contingency fee agreement.”
“Can you see that this document is a contingency fee agreement between Jack Tobin and Thomas Felton?”
“Yes.”
“Did you know that Jack Tobin prepared and signed a contingency fee agreement with Thomas Felton?”
“No, I did not.”
“Did you know that Jack Tobin prepared a claims bill asking for twenty million dollars from the Florida legislature and then prepared a contingency fee agreement giving him, personally, a third of whatever Felton recovered?”
“No, I did not.”
“Now, your organization has bylaws and rules and regulations that you and the attorneys who work with your organization must abide by. Is that correct?”
“Yes.”
“Is this contingency fee agreement a violation of your bylaws and your rules and regulations?”
“Yes.”
“Are the lawyers who work for you required to know about your rules and regulations?”
“Yes. They each sign a document saying they have read the by-laws of the corporation and the rules and regulations.”
“And the term ‘they’—would that include Mr. Tobin?”
“Yes.”
“I have no further questions, Your Honor.”
Jack leaned over and whispered in Tom’s ear when Merton was finished. “What were we thinking?”
Tom didn’t respond. The jury was watching and the judge was already addressing him.