Anyone You Want Me to Be (28 page)

R
obinson’s next legal move came in the summer of 2001 when he abruptly got rid of his stellar death-penalty team and hired a new lawyer. In mid-July, Robinson fired the three highly qualified attorneys who’d been representing him for the past year and brought in a young and untested Johnson County barrister named Bob Thomas. The thirty-year-old had graduated from the University of Kansas School of Law only a few months earlier and had virtually no experience in the courtroom. Before going to law school, Thomas had been a police officer in the Kansas City suburb of Prairie Village, where Robinson’s son-in-law Kyle Shipps was a detective. Thomas had been a friend of Shipps’s, but indicated that the two of them had never had a discussion about the Robinson case. If the defendant had been indigent at the time of his arrest, as he’d claimed to be, and if he hadn’t made any money from his cell during the past year, then one could only wonder where the money had come from to put Thomas on his payroll.

With this maneuver, Robinson became the first death-penalty defendant in Kansas history to replace his court-appointed lawyers with a privately hired attorney. The American Bar Association enforces strict guidelines for defense lawyers who work on capital cases, but Kansas itself had no such requirements for these attorneys. The ABA guidelines require that at least two qualified lawyers represent each death-penalty defendant and that both of those attorneys have at least five years of criminal defense work and have been the lead counsel in a minimum of nine jury trials. When Robinson brought in Bob Thomas, he’d been the head lawyer in only two cases and had no death-penalty experience. Thomas was an employee of veteran Olathe attorney Carl Cornwell, but the young man was apparently going to represent the defendant by himself, with no help from Cornwall.

The arrival of Thomas into the legal mix threw the case into a quandary—and the strategy behind it seemed fairly obvious. If Robinson was convicted with Thomas representing him, he might later claim on appeal that he’d been denied a fair trial because he’d had inadequate counsel. Judge Anderson now had to decide what to do to avoid such a development, while the lawyers on both sides prepared to offer their opinions on the matter. Only one similar case had ever occurred—a murder charge in Georgia in which a judge appointed an older lawyer to aid a younger one, over the protests of the defendant. The man was found guilty and then appealed on the grounds that the appointment had been illegal, but the Georgia Supreme Court upheld the judge’s ruling and the conviction stood.

At a hearing to debate the issue, Paul Morrison suggested that the court appoint another lawyer to assist Thomas, perhaps someone from the Kansas Death Penalty Defense Unit, because it was already so familiar with the case. When Judge Anderson asked the unit’s head man, Ron Evans, if this was acceptable, Evans said it was “not a workable situation” as long as Thomas remained the lead defense attorney. Because Robinson had hired his own counsel, Evans pointed out, this also meant that the defendant was not in fact indigent and therefore not eligible for legal representation by a state-financed office. The Kansas Death Penalty Defense Unit, which perhaps felt conned by Robinson into representing him for so many months, would have nothing more to do with the man.

When the judge questioned Thomas about his ability to handle the colossal job in front of him, the attorney said that he planned to bring in four or five support personnel but intended to be the lead lawyer on the case. This information made the DA’s office nervous because it smacked of either the possibility of a successful appeal or a mistrial. The last thing that Morrison wanted was to have to try the Robinson case twice. His office now filed written arguments outlining their position that the court had a legal obligation to step in and provide the defendant with a veteran attorney. They cited both Kansas law and the U.S. Supreme Court, stating that they were aware of “no cases where a conviction has been reversed because of over-representation by counsel. We know of many convictions reversed because of under-representation by counsel, however.” Under the U.S. Constitution’s Sixth Amendment, they said, “the essential aim…is to guarantee an effective advocate for each criminal defendant rather than to ensure the defendant will inexorably be represented by the lawyer whom he prefers.”

In a strange irony of the law, the prosecution was seeking better legal representation for Robinson than he’d hired.

The prosecutors said that the Robinson case would be “extraordinary in length, complexity and issues…. It is absurd to believe that the defendant has the wherewithal to fund effective representation in this case.” In papers filed in Johnson County shortly after his arrest, Robinson had listed his income as roughly $1,000 a month, while his wife grossed only about $700 a month (one could only wonder how he’d paid for all the motel bills, phone bills, computers, travel bills for various women, the farm near La Cygne, and all the other expenses that had kept his business fronts and sexual escapades afloat). In referring to Robinson’s known income, Morrison and Assistant DA Sara Welch said that they were primarily concerned that a conviction of the defendant would not hold up if he had only one privately hired lawyer because that was all that he could afford. They had “grave concerns about the ability to prevail on appeal if the defendant is convicted and Mr. Thomas is his sole counsel.” The right to “select counsel must be carefully balanced against the public’s interest in the orderly administration of justice.”

A few days later, Judge Anderson concurred with the prosecutors’ opinion. After meeting with both Thomas and Robinson, the judge said that he found the latter to be somewhat indigent and therefore qualified to receive legal assistance appointed by the court. For his part, Thomas said that he was looking forward to getting some help. All of this inevitably meant that the trial would be delayed so that new attorneys could enter the case and aid the young lawyer. Despite the many complexities that had arisen, the judge was determined to plow forward as quickly as possible.

“Make no mistake,” he said, following his ruling on bringing in more defense counsel, “this is not an invitation to delay this case.”

In late July 2001, Judge Anderson did something unusual by reaching across the state line and naming a pair of experienced death penalty lawyers from Missouri to represent Robinson. Patrick Berrigan and Sean O’Brien now took over the role that had previously been played by the Kansas Death Penalty Defense Unit. Kansas had reinstated the death penalty in 1994, but Missouri’s capital punishment law had been in effect since 1970, so the duo were veterans of these legal wars. This ruling satisfied Paul Morrison and the case was back on course. Although the judge had hoped to start the trial on January 14, 2002, Robinson’s legal team needed more time to prepare his defense. After taking into account their request for another delay, Judge Anderson set mid-September 2002 for a trial date—and he intended that this one be kept.

So did Morrison. At the end of 2001, when he was asked by the press about his New Year’s resolution for the coming twelve months, the DA said that he had only one hard-and-fast resolve for the upcoming year. He wanted to get John Robinson tried, convicted, and prepared to face the death penalty in Johnson County. That would make him a happy man.

This kind of happiness would not come easily. The case had created a legal monstrosity that was equal to the monstrous charges the defendant was facing. In January 2002, Robinson’s lawyers conducted a phone survey in Johnson County to determine how the massive coverage of the case had affected the local population. They wanted to show that Olathe and surrounding residents were prejudiced against their client, and because he could not get a fair trial in this county, the court should grant a change of venue. Judge Anderson said he would take this under advisement. In mid-February, when it looked as if Robinson’s defense team was finally in place, the defendant lobbed another screwball at the legal system. Bob Thomas now asked to step down from the case because one of his previous clients had been in jail with Robinson and claimed to know hidden details of the case. Marvin Ray, a thirty-four-year-old convicted thief, had been in the Johnson County Adult Detention Center in 2001 and said that he’d received information from Robinson. In the summer of 2001, Ray sent the prosecutors a letter apparently offering to testify against Robinson and contending that he’d helped a man (someone other than Robinson) and a woman transport two female bodies from Topeka to the farm near La Cygne, in exchange for two pounds of crack cocaine. Thomas told the court that because Ray had once been his client, he might have to withhold protected information about him, and this could hamper his ability to represent Robinson.

The judge listened to Thomas carefully but would not let this latest development knock the trial off course. If Thomas wanted to quit the case or if Robinson wanted to fire him because of his involvement with Ray, that was between the two of them. His Honor was ready to get this case in front of a jury, and that was going to happen relatively soon, unless something “extraordinary” occurred. In February, he ruled that the trial would go forward on September 16, 2002, and two weeks later he ruled that there would be no change of venue. Bob Thomas now left the Robinson defense team and Patrick Berrigan and Sean O’Brien took over the case. Initially, because they were death-penalty experts, Berrigan and O’Brien had intended to handle only the sentencing phase of the trial, if Robinson was convicted and facing lethal injection. That plan had ended with Thomas’s departure. With the trial date only six months away, the two Missouri attorneys tried to manage the 21,768 pages of documents the DA’s office had produced on the case, the forty-seven videotapes, forty-five audio tapes, twenty CD-ROMs, and other pieces of evidence. It was an overwhelming task, and this was not the only death-penalty case that either of the lawyers was working on. During the spring of 2002, as Berrigan was trying to prepare for the trial, two of his other clients were executed in Missouri.

To make matters even more complicated, some novel legal issues surrounding computer forensics had emerged following Robinson’s arrest. After sorting through the defendant’s ninety-one thousand computer files, Detective Mike Jacobson had given the Kansas Death Penalty Defense Unit the relevant data on CD-ROMs, with the understanding that the unit would purchase Encase, the software program utilized by law enforcement to conduct forensic exams. In January 2001, the unit was given this data on nineteen CD-ROMs, and the lawyers in Topeka intended to access it through the Encase 2 series of software. But then the unit was dismissed from the case and by the time the data had been transferred over to the new attorneys, the Encase 2 series had been upgraded to Encase 3, making the old software obsolete. To download the Encase 2 program, one needed a password that came from purchasing Encase 3. The upshot of all this was that the defense had not been able to access the computer evidence directly. In April 2002, Jacobson gave the new Robinson lawyers about a thousand pages of hard copy—including e-mails, Web sites, and photos—based on what he’d found on the hard drives. He’d deemed roughly one thousand of the ninety-one thousand files to be pertinent to the case and tried to provide the defense with a road map of his discovery.

With these issues apparently settled, the defense began to battle over forensics. It urged the court to throw out all the evidence that had been gathered from Robinson’s rural property, including the two dead women, because Detective Dawn Layman had gone onto Robinson’s land and taken pictures in late March 2000 without a search warrant. The outcome of the motions regarding Layman’s activities was critical because the Kansas case rested on the bodies in the barrels.

The defense also wanted to toss out the evidence taken from Robinson’s rented mailbox, from his Dodge pickup, from his Olathe storage locker, and from his mobile home. They wanted to keep out information that investigators had gathered from talking with Nancy Robinson and her daughter Christy Shipps, months after Robinson’s arrest. His lawyers argued that the suspect’s relatives should only have been interrogated before formal charges were brought in a capital murder case. The defense also wanted to keep “gruesome photographs” out of the trial and to prevent any predeath pictures of the deceased being shown to the jury. The defense asked the state to provide them with all the records of the numerous e-mail addresses found on Robinson’s computer, many of which had S&M handles. They intended to suppress the sadomasochistic devices taken from the defendant’s farm, including duct tape, harnesses, and hoists. They wanted the evidence against their client severely limited, but they lost on virtually every one of these motions.

Finally, they argued that Johnson County district judge Larry McClain, who’d signed the search warrants in this case, was prejudiced toward the defendant because he’d been in the Olathe DA’s office when they’d prosecuted Robinson for fraud in the 1980s. Robinson’s Fourth Amendment right to protection from unreasonable search and seizure, the defense said, had been violated, and the evidence gathered from these warrants should be disregarded. On May 9, Judge Anderson ruled that because Detective Layman had not taken anything from Robinson’s property on March 30, 2000, but only snapped pictures of his property, she had not violated his rights.

The police had had probable cause to carry out these activities, so Layman did not commit “unlawful trespass.”

After more than one hundred motions had been filed and argued in court, Judge Anderson ruled that the evidence gathered against Robinson at every locale could be used at trial. Most of the legal matters seemed to be resolved, and in the spring of 2002, Robinson was finally scheduled to face his jurors in a few short months. He then filed another motion asking that he be allowed to see his family members in “contact visits,” something he hadn’t been able to do since his arrest more than two years earlier. Ever since then, his relatives had been able to come to the jail during visiting hours and speak to the defendant through a thick and transparent pane of glass, but they’d had no physical contact with him. He now wanted the judge to grant him this right. The prosecutors immediately tried to quash the request, arguing that the defendant had a history of fabricating evidence, and if given the chance, he might try something like that again. The judge sided with the DA’s office and no contact visits were allowed.