TAMPA — The evidence against Dontae Morris seems overwhelming.
When two Tampa Police officers were gunned down during a traffic stop on June 29, 2010, the dashboard video camera in one of their cars was rolling, capturing everything that was said and done.
“This has to be as difficult a case for a lawyer to defend that could exist on the planet,” said criminal defense attorney John Fitzgibbons, who is not involved in the case. “Other than maybe some attempt to argue that the shooter was not Mr. Morris, it seems clear that the evidence of guilt is more than overwhelming.”
The video is likely to figure prominently in the prosecution's case when Morris stands trial on murder charges in the shootings of Officers David Curtis and Jeffrey Kocab. Jury selection is scheduled to begin Monday in Orlando because of extensive pretrial news coverage in Tampa.
If he is convicted, Morris will face a second trial in which jurors will hear evidence over whether he should be sentenced to death.
The dashboard video shows Curtis talking to the driver of a car that has no license tags and questioning the passenger, who identifies himself as Morris and gives his date of birth.
It shows Curtis writing down the information and going back to his car, where he uses his computer to find a warrant had been issued for Morris. “Has resisted arrest,” the computer screen advises.
The video shows Kocab joining Curtis as a backup officer. The two officers, both 31, walk up to the right side of the car and ask the passenger about the warrant, telling him to step out and put his hands behind his back.
Finally, it shows the passenger standing as if he's about to comply, then reaching down and grabbing a gun. He turns in one motion and shoots each officer in the head, falling with the two victims, but then springs forward and sprints away. The driver, Cortnee Brantley calls for him before speeding off, leaving the officers dying on the side of the road.
The evidence also includes the small notebook where Curtis wrote Morris' name and date of birth.
In addition, there are text messages between Morris and Brantley, then 24 and 22, with him telling her to hide her car and to “lay bak stay loyal.”
Authorities also have text messages Morris sent to others as he eluded a massive manhunt: “U havent seen me....U dont know where im at....Please dont tell anyone anything. Erase these messages!” “Just make like i never existed!”
Morris was convicted in March of murdering another man, Rodney Jones, and sentenced to life. In that case, which was almost entirely circumstantial, his lawyers argued unsuccessfully that there was no credible evidence.
What will the defense argue in this trial? They haven't signaled their plans yet but some options emerge based on the evidence against Morris.
“This case will boil down to an attempt by the defense to keep Mr. Morris from being executed,” Fitzgibbons said.
That was the conclusion of several legal experts contacted by The Tampa Tribune, all of whom said if they were on the case they would do what they could to spare Morris from a death sentence.
“If this was my case, my overriding objective would be to save my client's life,” said Lara Bazelon, who directs the Project for the Innocent at Loyola Law School in Los Angeles. “I would do everything I could to make sure that the capital jury did not impose death, and that would be my focus.”
The defense lawyers are “standing at the bottom of a very tall mountain, and it's one of the things that makes being a criminal defense lawyer so hard,” said Charles Rose, a professor at Stetson Law School.
The legal strategy “is going to depend on what the goal of the representation is. Are they trying to create a sense that the client didn't do it, or are they trying to save the client's life by avoiding the death penalty? The evidence is pretty much, from my perspective at least, overwhelming.”
“You do the best you can with the hand you're dealt,” said Tampa lawyer James Felman, who is first vice chair of the Criminal Justice Section of the American Bar Association. “Video evidence can be particularly difficult to confront.”
Jury selection, the experts said, is crucial for the defense.
“I don't think there's a way to overstate how important it is,” said Bazelon, who said racial makeup of jurors is a factor with a black defendant and white victims. “You want a jury that is representative of the community that has individuals on it that is not all white, that is going to be at least open to arguments against capital punishment.
“To me that would be the most important aspect of the jury selection, that you have people on that jury who believe that every human life has value.”
Rose said he would expect defense lawyers to ask potential jurors about the legal process, fairness and how the prosecution must prove its case. Jurors will be told, “Don't rush to judgment, keep an open mind,” Rose said, “everybody should be treated the same way.”
“It seems to me the first priority of the defense is to seek jurors who may have a negative opinion on the death penalty,” Fitzgibbons said. “I would seek jurors that might have trouble voting for death over any other criteria in the jury selection. I think the penalty phase is going to be the key part during this trial rather than the guilt phase.”
“This is being tried in a jurisdiction with competent law enforcement and competent prosecutors,” Rose said. “I would be amazed if he does not receive the death penalty. As the defense attorney, you're flying in the teeth of that. You have to pick somewhere to have that fight. Jury selection is where it's at. Jury selection and appellate issues.”
Experts said lawyers will have future appellate courts in mind during the trial and will take steps to make sure the record reflects any potential issues for appellate arguments.
“A definite strategy of the defense in a hopeless case like this is to create an appellate issue that would cause the case to be reversed in a number of years in the future,” Fitzgibbons said.
“There could be things that happen during the trial. For example, if a defendant were shackled and the jury saw that, or if there was evidence that had been ruled inadmissible by the trial judge and that evidence was inadvertently referred to during the prosecutor's case.”
It will be incumbent on Circuit Judge William Fuente to minimize appeal issues.
“Fortunately for the prosecution,” Fitzgibbons said, “Judge Fuente is one of the most skilled trial judges in Florida. ... He's a hell of a judge.”
Whatever happens in court, Rose said, the defense lawyers will face public animosity.
“It takes a special kind of criminal defense lawyer to try death penalty cases for a living,” Rose said. “It's not easy. ... People will associate the lawyer with the client they have, which is unfortunate because it's in those cases that are most reprehensible that we define the law that protects the rest of us.”