Chapter 17
January finally felt like January. Beach weather for the tourists on South Beach. Colder than a tin toilet seat in the Arctic
for two Miami natives who had no idea how to survive a cold front.
“Damn it, Theo. Stop breathing like a Yellowstone buffalo and fogging my windows.”
“Not my fault you don’t know the hazard lights from a defrost button.”
Jack pulled up to the yellow curb outside the Richard E. Gersten Building and, seeing that he was in a no-parking zone, let
the hazard lights keep on blinking. He quickly recapped the plan before handing over the wheel to Theo.
“Wait outside the intake entrance and watch every squad car that pulls up. The minute you see MDPD haul Elliott into the station,
call me.”
“You got it,” said Theo.
Jack climbed out and left the door open. Theo walked around to the driver’s side, hopped in, and drove away. It was about
the only thing that had gone smoothly since Jack had promised Julianna Weller that his client would surrender voluntarily
by 9 a.m. Theo had wasted too many hours trying to find Elliott. Jack was forced to call the prosecutor and confess that he
didn’t know where his client was. Weller was more than happy to get an arrest warrant.
“Hey, Jack, is it true your client is MIA?”
It was Michael Posten of the Tribune, one of the reporters who’d called Jack after the indictment. He’d appeared out of nowhere and was suddenly walking alongside
Jack, step for step, toward the courthouse.
“No comment, Michael.”
A crowd was gathering outside the main entrance, at the top of the granite steps. Cameramen jockeyed for position as TV reporters,
microphones in hand, surrounded Julianna Weller. The prosecutor was holding an impromptu press conference. Jack stopped to
listen.
“Today is the first step toward justice for the Pollard family,” said the chief prosecutor. “Mr. Stafford was arrested by
MDPD this morning and taken into custody. In due time, the State of Florida intends to prove that Owen Pollard did not take
his own life. This was a murder made to look like suicide.”
A reporter thrust her microphone forward. “Why murder in the second degree, not first?” she asked.
Jack stepped closer. It was a question he wanted answered.
“The charges in this case were brought by a grand jury. As prosecutor, I explained that if the killer acted with premeditation,
the grand jury should return an indictment of murder in the first degree. If the killer acted with a depraved mind, the charge
should be murder in the second degree. I believe the grand jury made the correct decision. This is a textbook case of murder
with a depraved mind.”
“Is Mr. Stafford’s mind depraved because he’s trans?” someone asked pointedly.
The question seemed to catch the prosecutor off guard, but she didn’t answer. “Thank you. That’s all for now,” she said, stepping
away.
A flock of reporters followed her toward the entrance. Jack went with them.
“Ms. Weller! Exactly what do you mean by a ‘depraved mind’?”
Weller hurried through the revolving door. Jack wasn’t far behind, until she breezed past security with a wave of her badge.
Jack was stuck in line with the masses, first the x-ray machine and then the magnetometer. It took him ten minutes to get
through the gauntlet, and then he hurried down the hall to Courtroom 1-5.
Felony arraignments started every weekday at 9 a.m., and by the time Jack entered the courtroom, the daily routine was already underway, with Judge Garrison presiding.
A junior assistant state attorney was seated at the government’s table in front of the empty jury box, working his way through the stack of files one at a time as each case was called and disposed of in a matter of minutes.
A parade of armed robbers, drunk drivers, and other accused felons met their counsel at the rail, proclaimed their innocence to the judge, and then were either released on bail or remanded to custody.
Jack found an open seat in the first row of the public gallery. Michael Posten, the Tribune reporter who’d been hounding him all morning, squeezed into the seat next to him and whispered in his church voice:
“Your client pleading guilty today, Jack?”
Jack actually liked Posten, but he could be annoying.
“No spoilers from me,” said Jack.
“Gonna be a lot of media attention on this case, Jack. Get used to it.”
Jack knew he wasn’t blowing smoke. Arraignments were normally not newsworthy events, but this morning, several rows of public
seating were full, and the media section was at capacity. It wasn’t Jack’s intention to court media coverage, but if Weller
continued to make comments about a “depraved mind,” the case might well land in the national spotlight. Jack had to start
thinking about how to use that to his advantage.
“Next case,” said Judge Garrison. He was moving quickly.
“Case number 250719,“ announced the bailiff. “State of Florida versus Elliott Stafford.”
“Depraved mind!” a woman shouted from the back of the courtroom.
Judge Garrison smacked his gavel. “There will be order in this courtroom—and absolutely no hate speech!”
Silence fell over the gallery. The “depraved mind” mantra was already getting traction.
The side door opened, and a deputy brought Elliott into the courtroom.
He was wearing street clothes—jeans and a baggy sweatshirt—which meant that MDPD had arrested him and taken him to the station for booking, but he had yet to be processed into the county jail.
The junior prosecutor who had handled the first ten arraignments stepped aside.
Julianna Weller assumed the lead post at the prosecutor’s table.
Jack rose, pushed through the swinging gate at the rail, and met his client at the defense table.
Jack had plenty of questions for his MIA client, but arraignment moved quickly, and there was no time to talk.
“Good morning, Ms. Weller,” Judge Garrison said cordially. “And to you as well, Mr. Swyteck. Always good to have two experienced
trial lawyers in my courtroom. Ms. Weller, may I have the date and time of arrest?”
“Today at approximately eight ten a.m.”
That explained the way Elliott was dressed. The judge then addressed Jack’s client directly.
“Mr. Stafford, the purpose of the proceeding is to advise you of certain rights that you have, to inform you of the charges
made against you under Florida law, and to determine under what conditions, if any, you might be released before trial. Do
you understand?”
Elliott didn’t answer.
“He does,” said Jack, answering on his behalf.
“You have the right to remain silent,” the judge said, and as the recitation continued, Jack couldn’t help but think that
if Elliott had listened to his lawyer and invoked that right at the grand jury proceeding, he might not be in court for arraignment.
“We’ll waive the reading of the charges,” said Jack.
“That’s fine,” said the judge. “Mr. Stafford, how do you plead?”
Again, no answer from Elliott.
Jack filled in the blank. “Not guilty, Your Honor.”
“So noted.” The judge’s gaze shifted to the other side of the courtroom. “Ms. Weller, what is the state’s position on bail?”
“Judge, second-degree murder with the use of a firearm is a first-degree felony, punishable by life in prison with a mandatory
twenty-five-year minimum sentence. There is no bail for a life felony.”
“Ah, yes, of course,” said the judge. “No bail.”
“Your Honor, we believe bail is appropriate in this case,” said Jack.
“Are you requesting an Arthur hearing, Mr. Swyteck?”
An Arthur hearing—so named because it was established by the Florida Supreme Court in the case of State v. Arthur—was the only way to get bail in a murder case. It was like a mini-trial before a judge, no jury, and if the prosecution failed
to show a “great presumption” of guilt, the accused could be released on bail.
“We do request an Arthur hearing as soon as one can be scheduled,” said Jack. “But there is another matter that requires the court’s immediate attention.”
“Relating to what?”
“The terms of my client’s detention prior to the Arthur hearing.”
“Terms?” the judge said, raising an eyebrow. “This is pretrial detention, not a vacation.”
Anyone who’d seen the media coverage of the indictment already knew that Elliott was a transgender man, but that was far from
the entire world. Jack felt obliged to protect what was left of his client’s privacy.
“Judge, may I approach the bench?”
It was an unusual request outside a jury trial, and the judge grumbled. “Mr. Swyteck, my stack of case files this morning
is as long as my arm. I’ve ruled. The prisoner is remanded to the Miami-Dade County Pretrial Detention Center.”
The pretrial detention center housed about 1,800 prisoners—all men. Jack needed to press his point.
“Your Honor, my sidebar request is for a confidential matter relating to my client’s personal safety.”
“Oh, all right,” said the judge, waving the lawyers forward.
Jack spoke first. “Judge, remanding my client to an all-male facility is a problem.”
“Why?”
“He’s a transgender man.”
Judge Garrison wasn’t as old as Jack’s abuela, but he wasn’t far behind. “He’s what?”
The prosecutor interjected. “His biological sex at birth was female.”
“I see,” said the judge. “I’ve had a few of those before, I think. Probably more than I’m aware of. It’s never been an issue
at arraignment.”
“Probably because they came before you on bondable offenses. There’s no bail here.”
“I see,” said the judge. It was becoming his go-to response on a subject matter that seemed outside his comfort zone.
“Fortunately, Florida law resolves this issue for us,” said Jack. “Detainees are assigned to a correctional facility that
aligns with their biological sex at birth.”
“Ms. Weller, is the State of Florida in agreement?”
“Yes, we agree that the defendant should be in a women’s facility. However, now that we’ve broached the subject, we need to
consider the safety of other women inmates.”
“My client has no history of violence,” said Jack.
“He’s a trans man,” said Weller. “If you were a female inmate, how would you feel about sharing a cell with a man?”
“Are you arguing that Mr. Stafford should be placed in solitary confinement?” the judge asked.
“Yes, absolutely.”
Jack was taken aback. “Judge, if we were talking about a trans woman incarcerated with hundreds of men, solitary confinement
for her own safety could make sense. But the prosecution’s hypothetical fear that Mr. Stafford puts female inmates at risk
is, frankly, disingenuous. My client has had gender-affirming hormonal therapy but only limited surgery, at this point.”
“Speak plain English to me, Mr. Swyteck.”
Jack explained the way he might to his abuela. “My client does not have male parts below the waist.”
“I see,” said the judge. “Uh, I mean, well, I don’t actually see. Frankly, I’m even having trouble imagining, but—”
“The State of Florida’s position is unchanged,” said the prosecutor, saving the judge from himself. “Mr. Stafford should be in solitary, away from the general female population.”
Julianna Weller was a pit-bull prosecutor, but Jack had not expected this.
“Judge, this is pretrial detention. My client is presumed innocent. We don’t automatically punish gender dysphoria with solitary
confinement.”
“I’ve heard enough,” said the judge. “This sidebar is over. I’m ready to rule.”
The lawyers returned to their places, and the judge announced his decision to the entire courtroom.
“One week from today, this court will conduct an Arthur hearing to determine whether an exception to the rule of ‘no bail
in a murder case’ is warranted. In the meantime, Mr. Stafford”—he caught himself, seemingly troubled by the prefix—“the prisoner is assigned to the women’s wing of Turner-Guilford-Knight Correctional Center.”
TGK housed over a thousand inmates, about three hundred of them women. It wasn’t Jack’s preference. “Your Honor, we would
request Miami-Dade Women’s Detention Center.”
Weller immediately objected. “That’s minimum security. Accused murderers don’t go to MDW.”
“My decision is Turner-Guilford-Knight. The defendant will be assigned to the general population unless, upon examination
by qualified staff the, uh—how should I say?—the state of affairs is not as Mr. Swyteck represented to this court in our sidebar.
Next case,” the judge said, with a bang of his gavel.
A deputy arrived immediately to whisk Elliott away. The next prisoner on the docket replaced him, and the assigned public
defender nudged Jack out of the way. Jack walked alongside Elliott toward the prisoner exit at the side. At least a dozen
people, including deputies in uniform, were within earshot, so Jack had to be careful what he said.
“Elliott, I’ll contact the correctional center and arrange an attorney-client conference where we can speak in private. Meanwhile, don’t talk about your case to anyone inside the facility. Not to anyone. That’s very important. Do you understand me?”
Elliott didn’t answer. The deputy opened the exit door. Elliott left the courtroom, and Jack followed him and the deputy to
a waiting elevator.
“Elliott, do you understand?” asked Jack.
Elliott and the deputy entered the elevator. Elliott turned around, facing Jack, but said nothing. The double doors rattled
as they closed, and the motor rumbled as the car began its descent to the prisoner exit.
Jack was alone with the MDPD officer whose job was to mind the traffic from the chute to the courtroom.
“Don’t take it personally,” the officer said. “From what I hear, he never said nothing during intake either.”
It was a casual remark, but Jack didn’t take it casually. It made him realize that his client hadn’t spoken a word to him
since promising to take the Fifth.
“I’ll keep that in mind,” said Jack, and he returned to the courtroom.