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Elizabeth L. Parker, Esq.

IN THE CASES OF CASEY ANTHONY AND DAVID WHELAN, EVIDENCE OF THE IMPERFECT NATURE OF THE JUDICIAL SYSTEM TC Palm July 2011 by Eve Samples

The work of a jury is rarely as cut-and-dry as its verdict indicates. The entire country saw evidence of that fact last week, when 12 jurors found Casey Anthony not guilty of killing her 2-year-old daughter — even though it made them "sick to their stomachs" to acquit the woman, as one juror put it. And, while sifting through decade-old court records on Friday, I found signs of two other conflicted juries. Both convened in 1999 during driving-under-the-influence cases against David Whelan. Both found Whelan not guilty of the DUI charges. Whelan, you might remember, was the 58-year-old who drove the wrong way on U.S. 1 in Hobe Sound the night of June 23, crashing his car head-on into a pickup truck driven by South Fork High School cheerleader Jessica Smith. The accident killed both drivers. Because Whelan had been arrested more than 40 times in Florida — including at least five times on DUI charges — family members and friends have been wondering why he was not behind bars at the time of the accident. The answer, in part, may lie with the juries that acquitted him. I inspected court records from the two 1999 cases in Palm Beach County (but not a third Monroe County DUI case in which he also was found not guilty) and discovered jurors struggled with the evidence they faced. In one of the Palm Beach County cases, the jury sent several questions to the judge as it deliberated. "Is there any other information about the conversation between the officer and the defendant?" the jurors wrote on a yellow legal pad. "Is there any other testimony from the two attending officers?" In the end, they found Whelan not guilty. In the other 1999 case, the jury found Whelan guilty on a charge of possession of drug paraphernalia (a crack pipe was in his front shirt pocket) — but not driving under the influence.


Elizabeth L. Parker, Esq. I can't help but wonder: If he had been convicted in those cases, might he have received a stiffer sentence in 2010, when he plead guilty to another DUI charge? As part of that plea deal, Whelan received 60 days in the Palm Beach County Jail and one year probation. Prosecutors may not have been so generous if he had four DUI convictions instead of two (from 1991 and 1993). State laws permit sentences of up to five years in prison for four or more DUI convictions. "In 34 years of practice, I've never heard of someone being acquitted of three crimes of any sort, much less a DUI," said Richard Kibbey, a Stuart lawyer who is working with Jessica's family. "It's a situation, I think, that kind of fell through the cracks. I'm not making excuses for anyone, but that's not the norm," he said. "Especially on the Treasure Coast, cases with far less history are severely punished." Whelan, who lived in Palm Beach Shores, was booked 36 times at the Palm Beach County Jail and three times at the Martin County Jail. Usually, he was out within days or a few weeks. This April, he was released the same day he was arrested on a misdemeanor charge of driving with a suspended license. Kibbey wondered why he wasn't held in jail while his court date was pending. An administrative order in Palm Beach County requires people arrested on misdemeanors to be released on their own recognizance, said Elizabeth Parker, chief assistant state attorney in Palm Beach County, where most of Whelan's arrests occurred. As the Casey Anthony trial reminded us, the justice system is imperfect. In DUI cases, jurors may be more lenient because of the nature of the crime. Perhaps they have driven after drinking themselves. They might be reluctant to rely solely on testimony of police officers. And footage from cameras in police cars may not capture the flushed face, swaying or odor of alcohol that officers notice, Parker said. That makes "beyond a reasonable doubt" a tough standard to meet. Florida Highway Patrol still is investigating the fatal June 23 accident and awaiting toxicology results that would indicate if Whelan was drunk. Cellphone records examined by Jessica's family indicate she was not using her phone at the time of the accident. (The accidental deletion of a single word in my column last Sunday left the opposite impression, an error I deeply regret).


Elizabeth L. Parker, Esq. Kibbey and his law partner, Joshua Deckard, are investigating to determine if any restaurant or bar might be liable for serving Whelan that night. They are asking businesses along the stretch of U.S. 1 to come forward if they have surveillance tapes. Whatever they find, we know that justice will be subject to some of the same variables that allowed Whelan remain a free man.


Imperfect Nature of Judicial System