Evil Season

by Michael Benson

  That transfer didn’t happen immediately, however. The Chattahoochee facility was full and Murphy remained in jail for two months waiting for a bed to open up.

  During the wait Murphy was examined by the jail psychiatrist, “a brief evaluation,” Murphy called it. For the first time in years, Murphy was put on “psychotropic medications”: Vistaril for anxiety, Depakote for mood swings, and an antipsychotic called Geodon.

  The drugs didn’t have an immediate effect on Murphy’s psychosis. However, after using them for a couple of months, he stopped having hallucinations for the first time since 2001.

  In December 2006, the jail deputies drove Murphy to the Florida State Hospital in Chattahoochee, about a five-hour drive from the Sarasota County Jail. He was back in the “crazy house,” the state mental facility, the place everyone just called Chattahoochee.

  Unit 25. Ward G. His new home. The first thing he noticed was that the place was coed! There were even opportunities to spend time with women. Not necessarily quality time, if you catch his drift, but time nonetheless.

  Some of the females were good-looking, and they got to eat meals together and have recreation together. Usually, instead of any vigorous recreation, Murphy and the women just talked.

  Chattahoochee food was both nutritional and delicious. Murphy put on forty pounds. The pharmaceutical cocktail Murphy received in that facility may have had something to do with his weight gain as well.

  Chapter 38

  Arend Goes for It

  Forensic psychologist Dr. Joseph D’Agostino came to Chattahoochee and evaluated Murphy during the spring of 2007. Murphy remembered him as a giant Ivy Leaguer, tall and hefty, maybe 270 pounds, with a full beard and a shrubbery of unkempt curly hair.

  While at Chattahoochee, Murphy took classes on courtroom and trial procedures. The classes lasted for several months. When it was over, he was given an oral exam, which he passed.

  In September 2007, deputies from the Sarasota County Jail arrived and took Murphy back to jail. Murphy didn’t want to go. The whole five-hour ride he figured he was going to get his old adjustment cell back.

  “I had a big surprise,” Murphy recalled. “They placed me in general population, a six-man cell.” He had constant company. The prisoners lived in eighteen-man dorms, with a moderately big dayroom and a TV. Since he behaved himself, that was where he got to stay during the remainder of his time in Sarasota County.

  He received second evaluations from Dr. Kasper (who came twice) and Dr. McGovern. Murphy said he was feeling much better, thanks.

  Assistant State Attorney Lon Arend had done his undergraduate work at Florida State; he earned his law degree at the University of Florida. He’d been a prosecutor for fourteen years, including eight as chief prosecutor in the DeSoto County Office, and was reassigned by the state to be the Sarasota region’s chief homicide prosecutor, replacing Debra Johnes Riva, who had become a judge. Arend reported to his new office, and the first case thrown on his desk was the Joyce Wishart murder.

  “At first blush I looked at this case, and a lot of Murphy’s behaviors, and I thought, ‘This guy is insane,’” Arend recalled. Even later on, Arend never stopped believing that Murphy was mentally ill. “The argument wasn’t whether he was mentally ill or not. The question was ‘What are we going to do with him?’”

  Even though the Elton Brutus Murphy case lingered and lingered because of competency issues, it was never far from Arend’s thinking. He wanted to put Murphy in prison—even if it meant butting horns with a formidable insanity defense. Arend looked at the facts of the case and the psychologists’ reports and concluded that Murphy, although seriously mentally ill, was not legally insane. He was fairly certain a jury would see it the same way, too. In the state of Florida, a killer can be schizophrenic and still be able to tell and appreciate the difference between right and wrong. Many of the things Murphy had done at the crime scene—cleaning up, locking the door in a special manner so as not to leave fingerprints, and his other attempts to avoid detection—could be used to argue he was sane.

  As he prepared his prosecution, Arend read Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice by Dr. Margaret A. Hagen, a professor in the psychology department of Boston University.

  The book made many points that Arend took to heart. One thing, for instance, Hagen pointed out that the world of psychology and the world of the criminal justice system are mutually exclusive. There was very little overlap.

  “It is a fascinating book that dissects what psycho-expert testimony is doing in our court system. I read that book, cover to cover, and outlined the whole damn thing while getting ready to prosecute Murphy.”

  Hagen’s book put forth the theory that a prosecutor should not have to hire his own expert to refute defense expert testimony supporting insanity— that a lawyer should be able to refute that testimony himself, just by asking the defense doctors the correct questions.

  “Forget the man on the street. Forget the folks in the jury pool. You’d be surprised how many Ph.D.’s don’t know what ‘insanity’ means,” Arend said. “They don’t get it, because they live in their own world, a world in which insanity equals mental illness. In common usage ‘insane’ and ‘crazy’ are synonyms. But in a legal sense they are very different.”

  Teaming up with Arend for the eventual prosecution of Murphy would be Karen Fraivillig and Suzanne O’Donnell. When Lon Arend replaced Riva as lead attorney on the Wishart case, Fraivillig asked if she could stay on as part of the prosecutorial team. Arend said sure.

  Fraivillig was a large woman, with long blond hair, who moved regally, deliberately, and erect—as if balancing an invisible book atop her head. She completed her undergraduate work at New College of Florida; then she went to Stetson University College of Law in St. Petersburg. She graduated in 2002 and had been prosecuting cases ever since. She enjoyed taking on the bad guys. Sometimes she wondered about the human condition, but she felt better when tenaciously combating its darkest corners.

  Arend believed that there was room for three attorneys on a prosecution team. Spreading out the tasks was better because it allowed each attorney to focus on one subject for longer, and that brought the best results. Having two assistants would allow Arend to concentrate all of his attention on the insanity issue. Arend wanted to do most of his prep work on cross-examining the defense’s medical experts, and in methods of educating a jury as to what “insanity” is and how it is different from “crazy.” His expertise would need to be plenty sturdy, especially since the state was having a hard time getting their own shrinks to say Murphy wasn’t insane.

  “I knew those issues were going to be a full-time job,” Arend concluded.

  So Suzanne O’Donnell became the third member of the prosecution team, handpicked by Arend “because she is just so stinkin’ smart.” O’Donnell was a graduate of the University of Florida College of Law and, unlike some lawyers who’d seen things from both sides of the courtroom, O’Donnell always wanted to be a prosecutor. After school in 1999, she started as a prosecutor in St. Petersburg, Florida. Shortly after that, she came to Sarasota. Her forte was forensic evidence. For four years O’Donnell had been the state attorney’s specialist in sex crimes against children.

  During the trial the defendant was never sure which one was Fraivillig and which one was O’Donnell, but he found them both attractive. They were attired like they were in a fashion show, he remembered, in “very nice dresses.”

  What Murphy did distinguish was the common voice he heard from the prosecutors. Murphy said they were all “desperately aggressive.” One wonders if Murphy comprehended the meaning of his words when he said, “They triple-teamed me, as if with a vengeance.” He came just shy of calling them mean.

  At the trial Fraivillig and O’Donnell would present the evidence for the jury. He knew they would be good at it. Arend would focus on the doctors.

  During the fall of 2007, circuit judge Deno G. Economou officially decla
red Murphy was now fit to stand trial. Judge Economou was a thin man, with salt-and-pepper hair that grew in thick waves.

  The same psychologists who had ruled Murphy incompetent to stand trial had reexamined him. Now they said that, due to the proper medication and education, he was competent.

  There was testimony to the effect that Murphy had received instructions in courtroom and trial procedures and had passed the oral exam with flying colors.

  Murphy came away from the hearing with the impression that it mattered little what his state of mind was, as long as he could correctly answer what role the judge played during a trial and how many people served on a jury.

  Now that there was going to definitely be a murder trial, Adam Tebrugge announced that he was stepping down as Murphy’s counsel to tend to other matters, most urgently his new role as counsel for the man who had killed little Carlie Brucia.

  Tebrugge was replaced as Murphy’s attorney by another specialist in capital murder—Carolyn Schlemmer, of the public defender’s office.

  Tebrugge and Schlemmer came to the jail together to see Murphy and explain the switch. Murphy found Schlemmer to be an attractive blonde. He learned that she was a recent widow. Murphy saw a photograph of Schlemmer’s late husband on the cover of one of her notebooks, and he sensed she was still mourning his loss.

  She was a mother, too, a factor that affected Murphy’s future in the sense that court hearings and his eventual trial could never go too late into the afternoon and evening because Schlemmer had to leave to pick up her children at a child care center. (Although it was agreed that if the court’s schedule was very tight, co-counsel might carry on in Schlemmer’s absence.)

  Schlemmer attended Stetson University College of Law. Her career had not turned out at all as she anticipated. When she was attending law school at Stetson, she had wanted to be a prosecutor, but fate pushed her onto the other side of the aisle.

  “I had to take the public defender clinic while in law school because the prosecution clinic was full,” she once explained. She graduated in 1991 and began her career working for a friend’s firm in St. Petersburg. After that, she worked as a public defender in the traffic division in Tallahassee. In 1993, for the first time, she defended a client facing the death penalty; capital-murder cases became her specialty.

  How did she handle defending the worst of the worst?

  “I do feel that, no matter guilt or innocence, everyone is entitled to good representation and a fair trial,” she said. “Maybe that is why I can so easily represent the people accused of the worst crimes. I have a knack for separating feelings and work. You either have it, or you don’t.”

  With Tebrugge off the case, and Schlemmer on, Murphy’s co-counsel became Jerry Meisner, another assistant public defender. One notch on Meisner’s belt was that he had a few years earlier accomplished something very rare: He’d successfully argued that a client was not guilty because of insanity. Jurors rarely buy insanity defenses; they don’t like them. However, in February 2005, Meisner’s client Larry Smith, of North Port, was acquitted of second-degree attempted murder charges because a jury found him insane. Meisner sold his theory that Smith was temporarily insane due to “involuntary intoxication,” an adverse reaction to a prescribed antidepressant.

  It was during that initial meeting with Schlemmer that Murphy finally admitted that he had, indeed, killed Joyce Wishart.

  “I confessed because I realized that an insanity defense was my best opportunity for eventual freedom,” Murphy said, “even if it meant a stay of a half-dozen years or so at Chattahoochee.” That was a hell of a lot better than prison.

  “I did it,” he now said. “But I was insane when I did it.”

  At first, prosecutors included capital murder among Murphy’s charges. However, during October 2008, they announced that they had changed their mind. They would not seek the death penalty. The switch came in anticipation of an insanity defense that might have been more apt to sway a jury if the death penalty remained on the table.

  During February 2009, Detective Ken Halpin was contacted by a small group of jailhouse snitches. One was Jack Cash (pseudonym), who had been Murphy’s cell mate in 2008. He said Murphy asked him: “Could you help me beat my case by playing the psyche card?”

  Cash said sure, and gave Murphy advice as to how to pull it off. “Act crazy and do stupid stuff,” Cash told Murphy. “Tell them you hear voices. Sit around. Talk to yourself. Stare at walls.”

  A second jailhouse snitch, Dave Stauss (pseudonym), told Detective Grant that Murphy told him that insanity was the best chance he had of avoiding the death penalty or a life sentence.

  Other men in Murphy’s cell block described a quiet prisoner, who kept to himself, and took a compulsive pleasure in cleaning. Murphy, the snitches agreed, often could be seen cleaning the community section of the block.

  Murphy soon learned that many of his cell mates had been interviewed by the police. According to a new snitch, inmate Ralph Faye (pseudonym), Murphy said, “Fuck those cops. That bitch deserved what she got, and I wish I could do more.”

  Chapter 39

  Trial

  The murder of Joyce Wishart was almost five and a half years old by the time the trial of Elton Brutus Murphy commenced in the Twelfth Circuit Courthouse on Ringling Boulevard in Sarasota during the spring of 2009.

  The location was convenient for Murphy. It was right across the street from the jail, which was next to the police station. And, for further convenience, they had a holding cell with his number on it right in the courthouse so they could efficiently keep him under lock and key when the court was in recess.

  Murphy never got to see much of the outer building. It wasn’t like they cuffed and shackled him and walked him across the street so he could have a look around.

  He was cuffed and shackled, but he was taken from the jail into a garage, where he was put into a car. After a short drive he found himself in another first-floor parking lot. He was led through a side door, then another door, to his first-floor holding cell.

  When it was time for Murphy to be in court, he was taken from his cell, marched down a hallway to an elevator, then up to the floor where his trial was being held. (There was even a courtroom holding cell where he could remain jailed during short breaks.)

  Murphy thought the courtroom looked small—smaller than they appeared on TV. Trying to stare holes through him from the courtroom’s spectator section were friends of Joyce Wishart, who were there every day, sitting directly behind the prosecution.

  The defendant saw other familiar faces. Detective Glover was there, who had investigated the murder so hard and had questioned Murphy during one of his first postarrest interrogations. Also there was Mark Klothacus, best man at Murphy’s first wedding. Klothacus sat directly behind Murphy, and Murphy even had an opportunity to talk to him for about a minute.

  During jury selection Lon Arend asked the same question to every prospective juror: “When you think of ‘insanity,’ do you think of ‘crazy’?” If he or she said yes, Arend would say, “Would it surprise you to know that ‘insanity’ means ‘crazy’ and ‘not able to distinguish right from wrong’?” If they didn’t get it, he rejected them. No one was going to sit on that jury without understanding what “insanity” was. Even crazy people were accountable for their actions under the law.

  Judge Economou, who had presided over the preliminary hearings, recused himself from the case. He stated that after reading the doctors’ reports on the defendant, he felt he’d already made up his mind about whether or not Murphy was insane.

  On the bench for the trial was the Honorable Charles E. Roberts, who had served on the circuit court bench since January 2003. He earned his B.A. at Duke University, and his J.D. at the American University Washington College of Law. Judge Roberts gave the jury a brief course in how trials worked.

  The judge’s job, he explained, was to determine how the law was to be applied, and to see that everyone understood those applications.
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br />   On the other hand, it was the jury’s job to determine what the facts were and to apply the law to those facts. They were a team. The jury was to base their opinions solely on the evidence—which consisted of the witnesses’ answers, not the lawyers’ questions—as well as any physical items that might be introduced by either side. It was entirely up to the individual juror as to how much weight he or she should give each piece of evidence. The words of a sincere-sounding witness would outweigh those of one who seemed insincere, and that was perfectly understandable. It was forbidden for jurors to come to any conclusion regarding the defendant’s guilt or innocence until they had heard all of the evidence. Jurors were not to discuss the case with anyone, even fellow jurors, until the trial was over and it was time for them to deliberate.

  The defendant, Judge Roberts noted, had a right not to testify on his own behalf; and should that happen, the jury was not to hold the decision against him.

  Sometimes the jury would be asked to leave the courtroom and there would be some chitchat with them out of the room. Despite this, the jury would miss no allowable evidence. First they would hear opening statements, then the prosecution’s case, the defense’s case, and closing arguments.

  Sitting in the journalist section of the courtroom during the trial was Jackie Barron, of WFLA-TV, who had been covering the Sarasota-Manatee area for quite a number of years.

  She was a third-generation Tampa native, with roots that could be traced back to when her great-grandmother rolled cigars in Ybor City. She was a local—through and through—a factor she felt gave her an edge when reporting for her hometown station.