How Murky Video, Dead Lawyer Won a New Murder Trial
By: Noreen Marcus, Daily Business Review
Now that police dashboard cameras and smart phones are everywhere, it seems incredible that a grainy, silent video can still sway a 1994 murder case.
But it can. Casmir "Casey" Sucharski, one of three homicide victims, had installed a surveillance camera at his Miramar home. The camera captured two men killing Sucharski along with Marie Rogers and Sharon Anderson, friends he knew from his tavern Casey's Nickelodeon.
With little else connecting defendants Pablo Ibar and Seth Penalver to the gory home invasion on June 26, 1994, the videotape became the state's Exhibit A.
The case spawned a marathon of five trials. In 2012 a jury acquitted Penalver; on Feb. 4 the Florida Supreme Court gave Ibar a new trial. Ibar has spent 22 years behind bars, almost 16 of them on Death Row.
By a 4-3 vote the court decided his trial lawyer, the late Kayo Morgan, so mishandled his defense as to render ineffective assistance of counsel. The majority said Morgan's worst failing was not using an expert witness to challenge his client's identification as one of the men in the video.
"Ibar told Morgan that he wanted a 'forensic thing,' but, despite Morgan's understanding of the critical nature of such evidence, Morgan talked Ibar out of it," the unsigned opinion states.
"Simply put, we cannot and do not have confidence in the outcome of this trial," it concludes.
Benjamin Waxman, Ibar's post-conviction lawyer, said the ruling reflects four justices' "deep concern that Mr. Ibar may be another innocent person."
"It all comes down to this blurry, grainy, soundless videotape which was never analyzed for the jury," said Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman in Miami.
At this point "I can't imagine Mr. Ibar agreeing to a life sentence," he said.
Fort Lauderdale-based Morgan cared passionately about his clients but was a rogue within the organized bar. After Morgan died of cancer at 63, his mother said he "got in trouble with judges a lot," the South Florida Sun Sentinel reported Nov. 21, 2014.
"Morgan's personal life impacted his practice," the Supreme Court opinion notes. During jury selection in Ibar's trial Morgan was charged with aggravated battery on the drug-addicted woman who bore his child. "Morgan was in emotional and physical pain, suffering from extreme duress, and 'was not there' mentally," the opinion recounts.
Knowing he had to attack the video ID's reliability, Morgan brought in Fort Lauderdale lawyer Barbara Brush as his second-chair and penalty-phase counsel. Morgan delegated to Brush the job of getting a facial identification expert to testify for their side.
Somehow that didn't happen. The Supreme Court blamed Morgan, finding "Brush acted under Morgan's direction and it was clear that Morgan was ultimately responsible."
The majority rested on the expert witness gap to find ineffective assistance, but acknowledged eight other problems with Morgan's Ibar defense. The justices emphasized they didn't take Morgan at his word when he testified about his "defective" lawyering at a 2009 post-conviction hearing.
"[W]e do not rely on his admission … but rather on his complete failure to pursue the important defense that Ibar was not the perpetrator of the crime through discrediting the videotape and the state's evidence as to that identification," the opinion states. The court reversed Broward Circuit Judge Jeffrey Levenson, who had denied Ibar's motion for post-conviction relief.
The majority even hinted that the court might have ruled for Ibar a decade ago if an expert had forcefully challenged the video. Instead it upheld his conviction on direct appeal in 2006.
"The video was the foundation of the other testimony and much of that was found erroneously introduced," Waxman said. Since the video survived unscathed, the high court dismissed as harmless error the jury's misplaced reliance on video-related evidence that fingered Ibar.
Beyond the Video
To Justice Peggy Quince the case isn't only about the video and Morgan's failure to attack it.
She said the jury heard "the proper and compelling trial testimony of Gary Foy," who saw Sucharski's vehicle leave the crime scene and made eye contact with the passenger. Foy swore the passenger was Ibar.
The jury saw the video and decided Ibar was one of the killers, even though a T-shirt he allegedly used as a mask didn't provide a DNA match. Quince clearly trusts the jury system.
"Even if Morgan had secured a different expert, the probability of a different outcome at trial is not substantial," she wrote in her dissent, joined by Justice Charles Canady. Justice Fred Lewis dissented separately without opinion.
Only the four justices in the majority know whether they were influenced by the acquittal of Ibar's co-defendant Penalver.
Soon after Ibar's case arrived at the Supreme Court Waxman tried to interject the acquittal but the prosecution objected and the acquittal discussion disappeared from court filings.
Still the majority took notice. "There are … similarities between Ibar and Penalver's case," where the court found Penalver "was denied a fair trial by the prejudicial admission of irrelevant and inadmissible evidence repeatedly elicited by the State over objections," the opinion says.
The ruling "goes deeper," Waxman asserted.
Ibar's conviction survived direct and post-conviction appeals. "It wasn't until the fourth round of review that the court determined there was error of such magnitude that the conviction could not stand," he said. "I don't know any better proof of why we should abandon the death penalty."
PABLO IBAR, APPELLANT, V. STATE OF FLORIDA, APPELLEE
Case no.: SC12-522
Date: Feb. 4, 2016
Case type: Death penalty
Court: Florida Supreme Court
Author of opinion: Per curiam
Lawyer for petitioner: Benjamin Samuel Waxman, Robbins, Tunkey, Ross, Amsel, Raben & Waxman, Miami
Lawyers for respondent: Attorney General Pamela Jo Bondi, Tallahassee, and Assistant Attorney General Leslie T. Campbell, West Palm Beach
Panel: Chief Justice Jorge Labarga and Justices Barbara J. Pariente, Ricky Polston and James E.C. Perry; Justice Peggy A. Quince (dissent) with Justice Charles T. Canady, and Justice R. Fred Lewis (dissent)
Originating court: Broward Circuit Court