Saturday, May 01, 2010

Before You Judge, Part 5

In Part 4 of this blog, I wrote about how Dave Domberg and his gang got into the drug dealing business with the objective of gaining complete control of illegal drug sales in the southside of Chicago. The prosecution characterized Domberg as a Mafia wannabe. A number of members of the Domberg gang were former Chicago police officers.

Part 4 also detailed the circumstances leading up to Domberg contracting with Joseph Sallas for $5,000 to put a hit on Florida Agricultural Inspector Leonard Pease who had caught two of Domberg's mules, Harry and Bill Brooks, while they were transporting a large load of marijuana. The contract on Pease was made, but another Agricultural Inspector, Austin Gay, was killed by mistake. The case was unsolved for four years until 1983 when some of the principals began talking to prison officials while incarcerated.

In Part 3, I described my first impression of the attorneys and the defendants. Today I will expand on some of those impressions, plus my impressions of some of the key witnesses. Also I will discuss jury deliberations in this blog too.

When the court was unable to seat a jury twice in its original venue for the Austin Gay murder trial, the trial was moved from Lake City to Tallahassee instead. Upon reading some old newspaper articles, I learned that the reason Tallahassee was chosen was two fold. The court felt a larger city such as Tallahassee would make it easier to seat a jury, so they contacted several larger cities in the Live Oak/Lake City area. One of the criteria for chosing the new venue was the ability of the clerk of the circuit court in the new venue to guarantee a clear courtroom for at least two months. Tallahassee had the earliest open date for a clear courtroom, so Tallahassee was chosen as the new venue.

At the time the decision was made to move the trial to Tallahassee, there were still six defendants. In addition to Dave Domberg (36), Ed McCabe (38), Billy Jim Cherry (48), and Joseph Sallas (50), there were two other defendants, both former Chicago police officers, Sam McBride (42) and James McEnroe (38).

The state's key witness was to be Domberg's closest lieutenant, Tom Brooks, the middle of the three Brooks brothers. However, ten days before the start of the trial, Tom Brooks suffered a heart attack and died. He was only 36. The state was suddenly without their key witness in a now five year old murder with little forensic evidence. The entire trial was based upon the testimonies of former co-conspirators, and Tom Brooks knew more than any of the others. Other than Tom Brooks and Ed McCabe, the highest and most knowledgeable of the former co-conspirators was Sam McBride who also had been a close friend of Tom Brooks. So the state offered reduced sentences to both Sam McBride and James McEnroe in return for their turning state's evidence. In retrospect, without Sam McBride's testimony, it would have been impossible for the state to present a case for conspiracy to commit murder and to label Joseph Sallas as the hit man hired by Dave Domberg. McBride confirmed that only one hit man was hired and the only name that was ever discussed was that of Joseph Sallas.

Among our witnesses, there were no good guys other than the usual technical and forensic witnesses. All the major witnesses had participated in the crimes to some extent, although none were ever accused of participating in the conspiracy to commit murder, other than Sam McBride. The state's two strongest witnesses, in my opinion, were Sam McBride for the murder conspiracy charges and Gary Lee Almond for the drug running charges. Both were not particularly likable but their testimonies held up well under cross examination. I do not remember much of James McEnroe's testimony which was mostly corrabative. Like McCabe, he did not look like he belonged in a drug ring. He was, at the time of his testimony, free on bail and working as a trader at the Chicago Board of Trade.

The Brooks brothers were erratic in their testimonies. As I wrote before, I think Harry Brooks was the dimmest bulb in the family. He seemed a rather pathetic person who lacked any self confidence. His younger brother Bill seemed much smarter, but there were times that I thought his testimony was skirting around the truth. I suspect the middle brother, the deceased Tom Brooks, may have been the most intelligent of the three and that is not saying much. Their father, Harry Brooks Senior, was truly a broken man. He had worked hard all his life and never been in any trouble until he got into the drug business. The result ruined his marriage, his home and his family. I actually felt sorry for him.

In addition to the testimony of the former co-conspirators, Joseph Sallas and Billy Jim Cherry also produced alibi witnesses. Sallas' wife was his first alibi witness. Her testimony was not at all credible to me. I thought she was totally lying. Then attorney Tom Stone called a couple that Sallas met at the air show as his other alibi witnesses. They had never met Sallas prior to that day, but they were good for an alibi for the day before the murder, but not the day of the murder. Billy Jim Cherry's three alibi witnesses were his mother, his former wife, and his parole officer. I discounted his mother's testimony. She was an elderly country woman who would have done anything to save her son. The former wife's testimony was very good, but still being family, I did not give it a great deal of weight. The parole officer's testimony held some weight with me because he produced his log books where he had met with Billy Jim Cherry that afternoon.

After the alibi witnesses took the stand, three of the four defendants also took the stand. Joseph Sallas did not take the stand.

Dave Domberg was unimpressive on the stand just as he was the entire time in court. Victor Africano is a very good defense attorney, but even he could not make Dave Domberg likable. Ed McCabe was much more likable on the stand. Like James McEnroe, McCabe cleaned up very well and made a good impression on the stand. His testimony focused on his unblemished career with the police force and how proud his father was when he made detective. His attorney, Bob Adams, was trying to make the jury see Ed McCabe as just another guy like the rest of us. McCabe looked it, but testimony from other witnesses painted a different picture.

Then Billy Jim Cherry got on the stand. This man was so intimidating when I first saw him in the courtroom. And he was that on the stand too. He was missing a ring finger on one hand, and with his bushy black hair and equally bushy eyebrows, he was someone I would never forget if I saw him on the street. To this day, I can picture him in my mind's eye. He spoke in a very loud voice with a forceful manner, almost like someone in the military. His attorney, Blair Payne, asked him if he was in any way involved in the Austin Gay murder and his response was a strong "No Sir." My thought was that if someone met this man and hired him to do a killing, they would have remembered him and yet not one witness picked him out of a photo book or a police lineup.

Then suddenly, we were into closing arguments. State Attorney Jerry Blair was flawless in his presentation. Blair was an excellent speaker, being just emotional enough to hold your attention without going overboard. Then the defense attorneys made their closing arguments. Bob Adams emphasized that the evidence against his client Ed McCabe was very thin and there was no evidence of him being involved in the conspiracy to commit murder. Admas also reminded us of McCabe's excellent police career. Victor Africano had a more difficult role in that he was defending the supposed king pin, Dave Domberg. And Domberg was not the least sympathetic defendant like McCabe was. Africano said that Domberg admitted to racketeering but that he was not involved in any plot to kill Leonard Pease. He also reminded us that the only testimony we heard was from convicted criminals and that we should be wary of such testimony. Then Blair Payne made an extremely passionate plea for his client, Billy Jim Cherry. Pointing to the mountain of evidence including phone records and credit cards, he said that the state did not have one single shred of evidence to connect his client to this crime. Tom Stone attacked the basis of the state's case relying on known criminals to build a case against his client. And then it was over.

Immediately, I am thinking to myself, is this it? Where was the evidence against Billy Jim Cherry? Why was he even charged? I had already made up my mind that I would be voting not guilty on the charges against him based upon the complete lack of evidence.

All along during the trial we were allowed to take notes. Each day when we finished, the note pads were collected and kept by the court. The following day when we came to court, our note pads would be in our respective chairs. About a third of the jurors took notes voraciously. Others took no notes. At first, I tried to take notes but found that it interferred with my ability to pay attention to the testimony, so I rarely took notes except near the end when the judge gave instructions and the charges were summarized.

After the testimony was over, we recessed for the weekend and were to return to begin deliberations on Monday. On Sunday afternoon, we were allowed to individually review our own notes for three hours. Since I did not take a lot of notes, I reviewed the charges and went through my own mind as to whether or not the state had proved beyond a reasonable doubt that each defendant was guilty of the charges against him. I only had a question in my mind on one charge and that was the conspiracy to commit murder charge against Ed McCabe. I hoped that jury deliberations would help me come to a decision that I was comfortable with in that regard.

On Monday morning, we reported to the courtroom to begin deliberations. The jury instructions do not tell you HOW to deliberate. They do tell you that you must select a foreman and that when you come to a decision on each charge, the foreman will fill out and sign the form for that charge.

There was no quibble about who we wanted as a foreman. He was the man who had originally been the first alternate and was seated when one juror became ill. He was in his early 50's, a middle manager with the state, and a very low key person. He was one of the readers who did not socialize much with the other jurors.

We also decided to take the defendants in alphabetical order: Billy Jim Cherry, Dave Domberg, Ed McCabe, and Joseph Sallas. We decided that any votes on guilt would be done by written ballot and then if we were not of one accord, we would further discuss our reasons. Our deliberations took three days, but not necessarily because we had a problem with our votes. We spent a lot of those three days meticulously going over the evidence, in particular credit card charges and phone bills in order estalish time lines. We also talked a lot about how the various witnesses corrobated each other's testimony or how credible they were.

I believe that a lot of attorneys over rate the value of notetaking. Part of a long and complex trial such as the Austin Gay murder trial involves judging the credibility of witnesses, especially those who were once charged. Making note of body language, facial expressions, and the behavior of witnesses on the stand is part of judging credibility. If you are constantly taking notes, you miss the visual signs. The heavy notetakers in our jury actually seemed to know less than those who took few or no notes.

Since Billy Jim Cherry was first, I thought this would be a test of any bias that we might have among us because I felt the state failed miserably to prove the murder charge against him. There were no other charges against Cherry. Our foreman asked if there was any evidence or testimony that we wished to review in regard to Billy Jim Cherry. All of us said, no, let's just vote on him right now. When the votes were counted, there were 12 Not Guilty votes. Billy Jim Cherry did not know it then, but he became a free man after less than 1/2 hour of our deliberations.

The next deliberations involved Dave Domberg. As we discussed the evidence and testimony against Domberg, I realized that the votes would probably be the same for Domberg and McCabe, even on the conspiracy charge because McCabe continued to work as the number three man for Dave Domberg long after Austin Gay was murdered. This is where we took most of our time and we all began to realize that we could not discuss Dave Domberg without also discussing Ed McCabe. In the end we concluded that there was no proof of their guilt in the murder of Austin Gay, but that conspiracy to commit the murder of Leonard Pease had been proved and that RICO was also proved in the case of both Dave Domberg and Ed MaCabe. Additionally Domberg was charged with kidnapping and found guilty of that charge also.

When we got to Joseph Sallas, we the jury had a huge problem. Even though Domberg was not a particularly likable defendant, Sallas was intensely disliked by all the jurors. He was a sullen defendant and many of us resented that he had his wife lie under oath as a alibi witness. There were two charges against Joseph Sallas, conspiracy to commit murder and murder. Sam McBride's testimony that Joseph Sallas was the only person hired was proof of conspiracy to commit murder of Leonard Pease. There was a big problem with the murder charge in that there was no forensic evidence to connect Sallas to the murder of Austin Gay and the state had even failed to prove that Sallas was in the state of Florida on the date that Austin Gay was kidnapped and murdered. We discussed the evidence and took our vote on the conspiracy charge. It was 12 votes of Guilty of conspiracy to commit murder.

Then we took a vote on the murder charge and it was 10 votes Not Guilty and 2 votes Guilty. The two people who voted guilty were our two youngest jurors, both male, one white and one black. We asked them why they voted that way and they each said that they just knew Sallas was guilty of killing Austin Gay. Actually, I think the majority of us felt that way too. But we asked each of them where was the proof and after some discussion over the lack of proof, they were ready to take another vote on the murder verdict. The second vote was 12 votes Not Guilty.

After two months of testimony and nearly three days of deliberations, we were ready to deliver our verdicts.

In the Final part to this diary, I will cover delivering the verdict in the courtroom, the sentences, and the aftermath of this experience for me.

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