Still reeling from the guilty verdict, I had to somehow find the strength to continue the fight for Gil's life. I knew if he were sentenced to death, I would never get over it. A death sentence would mean Gil would sit for many years in a tiny cell on death row. Unless he received clemency—and the chance of that was slim to none—he would eventually be escorted to Florida's ancient wooden electric chair, nicknamed “Old Sparky.” This archaic device, which had ironically been manufactured by prison inmates, sometimes malfunctioned, causing the head of the condemned person to catch on fire before death. Needless to say, this definitely would be a violation of the inmate's Eighth Amendment right to be protected from “cruel and unusual punishment.” The thought of Gil sitting in that chair—and my role in keeping him out of it—made it very hard for me to eat or sleep.
I called 17 witnesses to testify in this phase of the trial, including four BSO jail deputies; four pastors from the local community; Gil's long-time friend, Vince Forzano; Gil's wife, Neli; and his mother, Emma. Everyone who testified said the same thing: Gil had changed markedly because he had become a born-again Christian.
Reverend Dominick Avello said that Gil was baptized on Aug. 13, 1989 at the Cornerstone Church in Hollywood, Florida. Not realizing it, his well-intentioned testimony opened the door for the prosecution to emphasize the plight of the victims.
“When I baptized Gil, I dipped him in water to cleanse his soul and leave his sins in a watery grave.”
“Did you know Mr. Fernandez in 1983 when these three victims gave their lives in a watery grave, left there among the old tires and trash in that canal?” asked Jim Lewis during his cross examination of the pastor.
“No, I did not,” Avello said sadly as he realized the morbid double meaning of his words.
This shot by the prosecution was tempered as Pastors Dwight Allen and Harry Keith of the Miramar Church of God, and Pastor Phillip Kenneth Loring of the Armor of God Tabernacle, also took the stand. They, too, testified to Gil's transformation and his selfless work with people who needed help.
Then I brought Neli Fernandez to the stand. Showing her characteristic strength, she confidently said, “Gil is the best father in the world and the best thing that ever happened in my lifetime. Since the day we got saved, we read the Bible every day. I don't need to beg for his life, he's got Jesus. He'll be with the Lord if he stays and he'll be with the Lord if he leaves. We're not afraid of death.”
Gil gazed adoringly at her from the defense table and mouthed an “I love you” as she left the witness stand.
Next I called the four jail deputies to the stand. Most of the jailers liked Gil, although they didn't necessarily want people to know it. Gil was actually appointed a trusty in the jail. This meant he had more privileges than other inmates. He received better food and was allowed to walk around more freely within the facility. The deputies respected his abilities as a bodybuilder and trainer, so various guards would pull Gil from his cell up to six times a day to train with them in the gym. He could squat up to 500 pounds, so the deputies, along with everyone else in the jail, were in awe of his raw physical power.
I knew subpoenas would be necessary for the jail deputies for CYA purposes, so they wouldn't get into hot water with Sheriff Nick Navarro, their boss. Navarro had been on a dogged crusade to nail Fernandez and wouldn't have taken too kindly to BSO deputies willingly testifying on Gil's behalf. Sheriff Nick was definitely larger-than-life and no one who worked for him wanted to get on his bad side.
To their credit, the four deputies honored the subpoenas and testified. Each told compelling stories of seeing Gil holding hands and praying with inmates who had AIDS. At the time, there was a lot of phobia surrounding how AIDS might be transmitted. Hardly anyone within the county jail, other than doctors and nurses wearing gloves, would touch AIDS victims, let alone hold their hands. Gil's willingness to do this was not only evidence of his compassion but also of his fearless belief in God's protection.
One of the deputies also testified that Gil saved a cellmate's life. Only 24 years old and a diminutive five-feet-four, the man was known by the intimidating nickname of “Commander.” But his nickname didn't have much to do with his having a commanding presence; it was based on the name given to him at birth: Charles Commander.
“Fernandez saved his life by cutting him down when he tried to hang himself,” Deputy John Ferguson testified.
Another deputy told the jury, “Gil Fernandez does a lot of wonderful things in the jail. He preaches, leads the other inmates in Bible study and runs the services. He's well-liked and well-respected by inmates and staff.”
The jury got the picture. The deputies respected and admired him, not for what he had done in his past life, but for how he was managing his new life since he came to the jail.
After all the other witnesses had testified on Gil's behalf, I placed Gil's mother on the stand. Emma Fernandez sat stoically in the witness seat holding several crumpled, soaked tissues in her balled-up fist. Soon, tears ran down her cheeks and her pleas for mercy were punctuated by deep sobs.
“He was a good son and a good father to his own two sons. I can't understand what happened,” she said, bending over and resting her elbows on her knees. She looked as if she could no longer support her own weight. “If you let him live, I will visit him always, until I die. Please don't send my son to the electric chair!” she begged, now weeping uncontrollably.
As his mother sobbed on the witness stand, Gil's wall of emotional suppression crumbled. For the first time since the trial began, Gil slumped his shoulders, bowed his head and cried like a little boy. The jury stared at him. They had never seen this side of Gil throughout jury selection or at any time throughout the lengthy trial.
Some of the jury members, along with many of the people on the defense side of the courtroom, were crying, too. Only the cruelest and most cold-hearted person could have kept from feeling something as they watched Emma beg for her son's life. As she cried, I noticed the jury members kept looking at Gil, only occasionally stealing a glance back at her. She was too hard to look at; her pain was far too intense. It was probably easier for them to watch Gil cry.
My goal in putting Emma on the stand was fairly obvious: Tug on the jurors’ heartstrings and cause them to believe that the mercy I wanted, was really what they wanted, too. It was my mission to prevail upon them to enter that jury room and conclude, “Well, I suppose we could spare his life for her. She's so sweet and she's hurting so terribly. Let her visit him in prison until she dies.”
When Emma Fernandez finally left the witness stand, she walked slowly. Anyone could see the emotional exhaustion had taken its toll. She looked at Gil the whole way from the witness stand to the spectator gallery, tears streaming. But Gil didn't even know she was looking at him. His head was resting just above his shackled arms, which barely reached the table because of the chains. His massive shoulders shook slightly as he cried, still feeling the residual effect of his mother's testimony.
“Mr. Lewis, you may deliver your argument now,” Tyson said.
Each of us was entitled to present arguments for or against the death penalty. Lewis was up first, and thankfully, my argument would follow his. This time, I wouldn't be sandwiched in by another state argument.
Jim Lewis stepped from behind the prosecution table, dressed to impress.
“Thank you, Your Honor. Ladies and gentlemen of the jury, at the close of these arguments you'll retire and complete your jury service in this case. You'll make a recommendation regarding the appropriate penalty for each defendant, for each count in the indictment for which they have been convicted. Judge Tyson will pass sentence, but he will give your recommendation great weight and consideration.
“If the aggravating circumstances justify the imposition of the death penalty and outweigh all mitigating circumstances that exist, it is your duty to follow the law and to recommend a sentence of death.
“The aggravating circumstances you may consider in this case are, number one, that the defendants have been convicted of another capital offense. This applies because we have what we call simultaneous killings. This aggravating circumstance allows you to consider that not just one human being lost his life but that three separate individuals died.
“The second aggravating circumstance is that the crime for which the defendants are to be sentenced was committed for financial gain. The evidence is uncontroverted that the motive for these crimes was to steal an ice chest full of cocaine. Three men died for cocaine and for money. They died for greed, even to the extent that their jewelry was taken. The defendants in this case could have just robbed the victims and taken their cocaine. They could have let them go but they didn't.
“The third aggravating circumstance is that the crime for which the defendants are to be sentenced was especially wicked, evil, atrocious or cruel. Wally Leahy, Alfred Tringali and Richard Robertson were pounced on immediately when they entered that house. Defendant Gil Fernandez stuck a gun to the mouth of one of the victims. Their hands were tied. They begged for mercy to the extent that they were gagged with paper towels, which were wadded up and stuffed into their mouths. Then their mouths were taped on the outside to ensure their pleas could no longer be heard. Michael Carbone held them at gunpoint for some six hours as defendants Fernandez and Felts discarded the victims’ vehicles.
“They were driven out to the Everglades until they reached Danger Road. The three men were taken out of the car in the darkness and marched down that road for some way. Mr. Tringali's gag somehow came out of his mouth and he asked, ‘Why, why are you doing this?’
“Surely, the victims knew as they walked down that road that their lives were in peril. The defendant, Gil Fernandez, ordered his victims to kneel in the water. As that first victim's feet touched the water of that canal, he must have been in terror, absolute terror. As he got wet, could there be any doubt in his mind that he was about to die? Then finally, there was a gunshot.
“And then there was a second victim. Having heard the previous shots, he must have known his fate as he was taken to the edge of the water and told to kneel. Defendant Gil Fernandez then took a weapon, placed it directly to the head of that individual and at point-blank range, shot him dead.
“But the carnage wasn't over. A third victim was taken down to that canal bank, knowing that he, too, would soon be in darkness; absolute, eternal darkness. The third victim struggled. But Gil Fernandez, with almost professional cruelty, once again put a gun to the head of this man and shot him at point blank range, causing what the medical examiner called ‘internal decapitation.’
Walter Leahy, Richard Robertson and Alfred Tringali were then shot a few more times by Gil Fernandez to be sure they would stay in their watery graves. Then they were just left there, among the garbage in the canal.
“The fourth aggravating factor for which you may consider in this case is that the crimes for which the defendants are to be sentenced were committed in a cold, calculated and premeditated manner without any presence of legal or moral justification. Can there be any doubt that these murders were well planned? Can there be any doubt this was meant to be a drug rip-off from the inception?
“The second night, April 1, 1983—April Fools day—when the victims showed up, there were ropes and blindfolds, and everything was ready. Were these murders calculated? They were calculated in a way that only a policemen could conceive them. There was no physical evidence. He was sure to wear gloves so there would be no fingerprints on the victims’ vehicle.”
In spite of the graphic images Jim evoked, the crying we had heard throughout the trial was nowhere in evidence. There was now just silence coming from the spectator gallery. I stole a glance at the victims’ families. Many of them held hands or had their arms around one another. They all looked stunned. It had been too much for too long.
“You can wash away your sins, but you can't wash away these murders. We have talked about the Bible during this trial and there is something in the Bible that just stuck out when I heard some of this testimony. ‘The wages of sin is death.’
“Lewis is cherry-picking the Bible,” I said to myself. “Here he goes, hijacking half a scripture verse for his own selfish agenda.” But then I thought, “Wait a minute John, haven't you done that, too?” Listening to Jim was actually easier on my conscience than listening to me, so I tried to quit giving audience to the truth-teller in my head.
“The punishment must fit the crime. That's why the death penalty exists: an eye for an eye, a tooth for a tooth, a life for a life. It's a hard thing to do, to come in here and expect you to make an impassionate decision based on the law and the evidence, but that's your duty. God forgives, but it's your duty to follow the law.
“Three human beings had a right to grow old. They had a right to enjoy the fullness of their lives. That has been taken away and can never be replaced. These two defendants took away those lives, in a cruel and calculated way. And why did they do it? Was this some heat of the moment, passion-type killing? Was this some retribution-type killing? No. It was for an ice chest of cocaine. It was for money. It was for greed. And the wages of sin is death.
“Your decision should not be for anyone or against anyone. It's human nature to show mercy, but there was no mercy shown that night on that canal bank along Danger Road. First-degree murder is the ultimate crime. Is life in prison enough? We know a recommendation of death will not bring back Alfred Tringali, Richard Robertson and Wally Leahy. But it will bring justice and that will have to be enough.
“Thank you.”
You could sense the jurors had taken Jim Lewis's words to heart. How could anybody not? You could almost imagine the struggle going on inside some of their heads as they weighed his words against whatever compassion they had developed for Gil and Bert.
It was now time for me to present the jury with my argument against the death penalty. Lewis would be a hard act to follow. Frankly, I was angry with the jury for convicting Gil, given all the conflicts in the evidence. So, I didn't have any qualms about going the extra mile to make them feel the emotional pain that Gil's son, Gillie, might someday feel if his father were executed.
I opened by making a passionate plea for the jury to allow Gil to continue to be a family man. I wanted the jurors to visualize Gil's first-born son, then eight, as the frightened little boy asking his mother about the death of his father. Making my voice sound like a frightened little child's, I mimicked little Gillie and said, “Mommy, why did daddy die in the electric chair?”
As I imitated little Gillie's hypothetical question for the jury, I let a teardrop run down my cheek, ever so slowly. I then once again asked them to spare Gil's life, if only for the sake of little Gillie. As I spoke these words, tears started to run down both cheeks. I didn't wipe them off, even though I wanted to. One of my cheeks was itching and felt uncomfortable, but I knew I wasn't as uncomfortable as the jurors, some of whom had dropped their heads to their chests and were weeping.
Playing to the jury's sympathy is clearly impermissible and therefore arguably unethical. Feigning ignorance, I suppose, could help a lawyer like me stay out of jail on a contempt-of-court charge. But at that point, I didn't even care if my statements resulted in a weekend or two in jail.
They didn't play by the rules, I reasoned, so why should I? I felt Tyson and the prosecutors had essentially robbed us throughout the trial, by allowing clearly inadmissible evidence, rank hearsay and “dead-men's testimony” from Combs and the others. In my anger, however, I was oblivious to the pain of the victims’ family members who had to sit and listen to me beg for Gil's life. I can only imagine how hard that must have been for them.
As some of the jurors wiped away their tears, I went on to say, “I have lived with this case for 13 months, every day; and rather obsessively at that. Even I don't know all the answers because there have been way too many stories. We had to try to figure it out and I still don't have all the answers. So, I don't know how you can have all the answers. You must have had a heck of a lot of doubt to keep you out for three days, though. That's a long time. Enough doubt that you knew the lies of Mr. Carbone were out of control. Somehow, though, you resolved that doubt by deciding that he was guilty without a firearm. You cannot, however, carry that doubt to the chair.
“There are some things in life for which you have to be 100 percent certain. You can't allow even one percent doubt when the electric chair is involved. That is not the place for a question mark, however small or remote.
“I don't personally believe in capital punishment. Those are my feelings and I know they don't count. But in society, I think we have to respect the sanctity of human life. You have already determined that people have killed in this case. What happened was atrocious and horrific, but it's no less horrific than society choosing to kill people in return.
“By placing Mr. Fernandez in the electric chair, the state would just be taking another life. As a society, we're supposed to be better than that. If we execute a man because he killed another with premeditation, how does that differ from his original crime? How is our act any less sociopathic than his? As a society, aren't we supposed to value the sanctity of human life more than the killer does? If we don't, how are we any different than him? Each of us is supposed to have feelings and a conscience. Perhaps I have too much feeling and that may be my problem. And I did make some mistakes in this case. The biggest one that I made was getting close to my client and his family. That was a mistake. I still love his family and they have met members of my family.
“Contrary to what you might think, lawyers aren't like pastors who get to hear everything when someone confesses to them. Again, I don't know the answers here. So, I don't know how you could know. You simply cannot let that doubt take Gil Fernandez and Bert Christie to the chair. Some things in life require 100 percent certainty. You can't be 99.9 percent sure when the people in question are facing the reality of having a steel cap put on their heads that causes their eyes to pop out…”
“Objection,” Molloy snapped.
Tyson called us over to the bench, where Molloy stated in a hushed voice, “I object to Mr. Contini giving a description of what happens during electrocution. This information has been specifically held by the Florida Supreme Court to be prohibited in closing arguments. I didn't want to interrupt because I wanted to give Mr. Contini as much latitude as possible but the Florida Supreme Court already ruled on this subject. You cannot argue residual doubt to the jury.”
Then, repeating it for emphasis, he said, “You cannot argue residual doubt.”
Tyson then ruled, “Objection sustained.” It didn't matter. The jury had already heard the gory details of electrocution.
Continuing, I argued, “Many advocates say the death penalty is needed as a deterrent to murder. But ladies and gentlemen, when was the last time you heard of a would-be murderer who stopped short of killing someone for fear of the death penalty?
“The killers in this case were well aware of the death penalty in Florida. They had probably even heard that at one point Florida had executed more people than any other state in the nation, with the possible exception of Texas. Obviously, the death penalty has not been working as any sort of deterrent to murder in our state.” They seemed to be going with me on this, so I kept it up.
“And what of the people who say that putting a murderer to death saves the taxpayers money? Did you know it cost over $11 million in Florida tax dollars to pay for Ted Bundy's seven death-row appeals? And did you know it takes less than $40 a day to keep a person confined in prison? It can literally save millions of dollars to keep an inmate incarcerated instead of putting him to death.
“If saving money and deterring future murders are not justifiable reasons for putting him to death, then the only reason left is vengeance. If you feel vengeance is warranted, then put my client in prison so he can think about what he did for the rest of his life! And while he's doing that, you would be giving him the opportunity to help others, which, as the witnesses today have testified, he has already proven he wants to do and can do.
“Please recall why some of you were weeping when you came back. Recall that. Recall the question marks in your mind. Recall the arguments you had with each other. Recall all that and ask yourself if Michael Carbone's various stories didn't cause you to have doubt. Something caused you to be out three days while you deliberated. There was a reason you came back feeling emotional and chose ‘guilty, without a firearm’ on the verdict form. That speaks for itself. Men can't be electrocuted based on that kind of doubt.
“Perhaps you're weighing that doubt against the question of why my client was driven to God. You think, ‘Some people are driven by guilt.’ But in reality, people are driven for various reasons. They might want to help others or to turn their lives into something positive.
“You ask ‘what drives them?’ If it's guilt, it's actually immaterial now. You heard from all those pastors. I'd never even met them before. There is no way their testimony could have been presented to elicit emotional impact. I had never even met these men before, yet, they all said Mr. Fernandez is a changed man.
“Even as a former prosecutor—and I was a prosecutor for a number of years—I had never seen deputies come into court on behalf of a defendant. Never. It's probably unprecedented that deputies would testify about how an inmate saved another inmate from hanging himself.
“There would be no way someone could create evidence like this. I couldn't hire deputies, put them on the witness stand and get them to say the right things. They are deputies I've never met before in my life. These are sworn police officers telling you what they have witnessed on a daily basis.
“Ladies and gentlemen, even guards come to Gil Fernandez for problems in the jail. He ministers to them as well as to the inmates. He brings about a real peace and a calm to the prison. I heard it; you heard it. And you know that's where he's going to spend the rest of his natural life if you recommend life imprisonment.
“Think of the thousands of people he might put on the right track—not hundreds, but thousands. God knows; we have a prison problem in Florida. Prison is the perfect place for someone who is so good at doing prison ministry. That's where he belongs.
“Wouldn't it be more helpful to society for Mr. Fernandez to spend the next 25 years in prison? That way, his kids can still get to know their father. They'll never have to ask their mother, ‘Why did Daddy die in the electric chair?’ Why not let them know their father and feel proud of him as a minister in prison?
“And he wouldn't leave early, believe me. Prison for life means just that: he would be there for life. They don't parole these guys. Florida is tougher than most states about this. Florida leads the nation in per capita prison population. We're fourth in the nation in prison population, following Texas, California and New York. But in actual population, we're 10th, making us first in prison population, per capita. Prisoners can't even make applications for parole for 25 years. They can't even ask lawyers to apply for them.
“Remember, he turned around a lot of people in the last 13 months. And there were even more that he helped in the year before he was arrested, including youth-gang members. That desire to help is a fire that's still burning in his soul. At least it would burn in the right place in prison. Let's not put that fire out. Please, let it burn in the right place—in prison for the rest of his natural life.”
I had nothing left to argue and was emotionally wasted, so I just said, “Thank you.”
Gil thanked me upon my return to the defense table, giving me an affectionate squeeze on the forearm. His family was gracious, too, each mouthing an appreciative “thank you” from the second row. My wife, who was sitting behind the Fernandez family, encouraged me, too, rooting for me to hang in there.
Louie Vernell then presented additional defense witnesses on Christie's behalf. He then asked another attorney to enter a limited appearance for Christie as co-counsel of record. Based on decades of friendship with Bert, Louie wanted to testify for the jury about Bert's character. This would have been impossible if Louie had continued on as Christie's attorney throughout the sentencing phase. A lawyer can't be both the attorney and a witness for the client, and Louie chose to be a witness.
Once Christie's defense argument was presented, there was nothing for us to do but wait.
Up until this point in the sentencing proceedings, nobody had spoken on behalf of the victims. The reason was simply because under Florida law, victim impact testimony was not yet allowed for presentment to the jury. Only the defendants could present testimony from character witnesses.
But the U.S. Supreme Court had ruled just the month before in a Tennessee case that testimony from victims’ relatives should be allowed at penalty phase hearings. So, prosecutors were allowed to present—albeit outside the presence of the jury—testimony from friends and relatives of the victims.
After the jury was ushered out of the courtroom, Linda Allard, who had already testified during the trial, sobbed on the witness stand. “There are no words to describe how it feels to tell a six-year-old girl that her father has been killed and that she will never see him or talk to him again.”
I looked over and saw Robertson's daughter, who was now 14 years old. Linda Allard's story about telling this young girl that her daddy was gone and that she would never see him again was unforgettably sad and very compelling.
Patricia Leahy Compton, sister of Walter Leahy, also cried as she testified, “My family lives with the knowledge that my brother knew he was going to die. He begged for his life. The psychological, emotional and physical pain my entire family feels is as intense today as it was eight years ago.” Her testimony was equally powerful. Nobody in his right mind would question the truth of the pain she described.
Then Luana Tringali said, “My family is devastated by my brother's murder. I've never seen my father break down like he did at the funeral. It nearly killed him.”
Listening to Luana would have made any lawyer wish that he were in a position to help her dad and the rest of the Tringali family. In truth, listening to all the victims’ family members testify made me wish that I had gotten to know all of them. In a perfect world, that would have been possible. But this wasn't a perfect world.
Although the jury was barred from hearing the testimony, everyone in the overflowing courtroom listened intently—especially Judge Tyson. It was for his benefit that this testimony was presented. Since he was the one who ultimately had control over the sentence, it was up to him to weigh what he heard from the family members against the sentencing recommendation made by the jury. That was a scary thought, indeed.