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by Val Ellicott
Staff Writer
It was the sort of bizarre circumstance that
Circuit Judge Roger Colton had come to recognize - and dread - as a
chronic affliction of the John Zile murder case.
A freelance television camera operator had
generated unwelcome publicity by coming forward with out-of-court
comments she attributed to lead defense attorney Craig Wilson. Zile
wanted to fire Wilson, which could derail the murder trial.
"A decision has to be made, and I'm prepared
to make it," Colton announced after hearing from Zile and the
attorneys in the case.
He then looked down at his desk and lapsed into a
long silence. Zile and the attorneys waited, and waited some more.
After a full minute, when no decision seemed forthcoming, they
launched into another round of argument.
Colton ultimately refused Zile's request to fire
Wilson, but making the call clearly had been an ordeal.
Long moments of indecision are characteristic of
Colton. Friends and former colleagues describe him as a man of
impeccable integrity whose deep commitment to fair play prevents him
from quickly resolving difficult issues.
"The only problem with Colton is that he tries
too hard to make everybody happy," said defense attorney Jack Goldberger.
Colton must now decide whether Zile should die in
Florida's electric chair or serve life in prison. A Bartow jury
convicted Zile on Nov. 18 of first-degree murder and three counts of
aggravated child abuse in the death of his 7-year-old stepdaughter,
Christina Holt, in 1994, but Zile waived his right to have the jury
recommend a sentence. So Colton alone must decide after a sentencing
hearing, which is set to begin Wednesday in West Palm Beach.
Colton has never sentenced a defendant in a death-penalty
case, but he may struggle less deciding Zile's punishment than he
has resolving many minor procedural matters. Attorneys who know the
judge well say his compassion and capacity for forgiveness favor a
life sentence for Zile.
"I just don't think he could sentence someone
to death," said a prosecutor with no connection to Zile's case.
"That would be too much for him."
Another factor working for Zile is that prosecutors
may be short of material to back their call for the death penalty.
A judge by law must weigh aggravating factors
justifying the death penalty against mitigating circumstances
favoring life in prison.
In 1994, when Christina died, Florida law listed 11
aggravating circumstances that could be cited in calling for a
defendant's execution. Two might apply in Zile's case. One applies to
a murder that is "especially heinous, atrocious or cruel."
The other refers to a defendant who has been convicted of a prior
violent felony. The second applies because Zile's convictions for
aggravated child abuse are considered prior violent felonies, even
though those convictions occurred as part of the same case as the
murder .
Mitigating circumstances by law are to be
considered more broadly than aggravating ones. One mitigator, in
fact, says jurors can consider any aspect of the defendant's
character or history that the defense wants to present as mitigating,
if it is established by evidence. Another that might apply in Zile's
case refers to a defendant having "no significant history of
prior criminal activity."
In an interview before Zile was convicted, Colton
said he sees the possibility of a second chance for defendants who
own up to their crimes.
"If someone comes in and says, `Judge, I'm
guilty. I'm willing to take responsibility,' shouldn't that be given
some consideration?" he asked.
Zile case a hand-wringer
The erratic history of Zile's case - a hung jury at
the first trial, a botched jury selection at the second and frequent
procedural delays - produced a steady stream of tough decisions for
Colton, who sometimes seems so anxious to avoid making the wrong
decision that he has trouble deciding at all.
His hesitancy, and his practice of allowing
attorneys time to exhaustively argue and reargue, often exasperated
the prosecutor in Zile's case, Scott Cupp.
"We keep going over the same stuff over and
over, again and again, " Cupp complained to Colton during Zile's
retrial in Bartow. The judge's over-deliberation, Cupp griped, was
threatening to establish a new courtroom policy: "Whoever talks
longest and loudest, wins."
Others say Colton just wants to be fair.
"Roger's smart enough to know there are two
sides to every story and he's got the patience to listen to both
sides without making any snap rulings," attorney Bob Foley,
Colton's former law partner, said recently.
Colton and Foley met in 1971. Colton had spent nine
years as an FBI agent and was expecting to be transferred to
Washington D.C.
His wife, Delores, didn't want to live in
Washington, so Colton began planning a career change. Friends at the
FBI put him in touch with Foley.
Colton seemed somewhat naive - "He wasn't a
street guy like a lot of criminal defense attorneys are," Foley
recalled - but he was immensely likable, with solid connections in
law enforcement. And an ex-FBI man could only help the office's
image, Foley believed.
The two men never signed a formal agreement.
Instead, they shook hands, christening a partnership that lasted 23 years.
"We probably got along so well because we
never really socialized a lot," Foley said. "I was raising
six kids and he was raising two. I think working together is enough."
As an attorney, Colton became known as a consummate
plea bargainer who worked hard to avoid trial for his clients.
"My philosophy has always been, if I never
went to trial it was too soon," Colton said recently. "If
you want to gamble, go to Las Vegas."
Colton also earned a reputation as a totally
trustworthy man.
"The greatest compliment I ever received was
`If Roger Colton said it, it must be true,' " Colton said.
"I worked very hard to get that reputation."
Prosecutors praise style
Prosecutors agreed to his plea deals, because they
knew Colton would never misrepresent himself or his intentions,
Assistant State Attorney Ellen Roberts said.
"If Roger said the sky was orange, you
wouldn't bother to go outside and check," she said.
When Colton did go to trial, his personable style
and gentlemanly manner often impressed jurors, attorneys said.
In one memorable victory, he won an acquittal in
1980 for a deputy sheriff, Loren Schnicke, accused of manslaughter by
culpable negligence for shooting a teenager, Demetri Athanasakes, in
Boynton Beach.
Colton argued that the shooting was an accident.
After deliberating only 20 minutes, the jury agreed.
"Some of the things Roger said in his closing
argument in that case I still use today," attorney Michael
Salnick said. "He's able to look at you and talk to you in such
a nice way that you know you're getting a fair shot." *more
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