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Citing poor defense, judge orders new trial in slaying

EDITOR'S NOTE: This story contains information that has been corrected since it was first published in print and online. See a note below for an explanation.

TAMPA — For two days, a Hillsborough judge watched a young lawyer struggle through a murder defense and lose.

Then, as a deadline loomed, Circuit Judge William Fuente waited for customary defense motions to overturn the Dec. 4 conviction or request a new trial.

No motions came.

Finally on Monday, Fuente took the rare step of initiating his own order of a new trial for defendant David Rolon, saying defense attorney Byron T. Christopher "did not render effective assistance" and didn't adequately prepare for trial.

"The defendant, through no fault of his own, did not receive a fair and impartial trial," Fuente wrote in a four-page order.

Rolon, 41, stood accused of fatally shooting his Sulphur Springs neighbor during a March dispute over a parking space. He faced 25 years to life in prison.

Delores S. McCain, an alternate juror at Rolon's trial, said the entire courtroom saw that he was getting poor representation.

"Everyone on the jury agreed," she said. "We were saying, 'I hope this guy wasn't getting paid much.' "

Veteran lawyers who reviewed the judge's order at the St. Petersburg Times' request said they had never seen anything like it.

"It's nothing short of scathing in its message," said Rick Terrana, who has practiced law for 20 years. "It takes an awful lot to get a result like you have in this case."

Typically, a motion for a new trial begins with an attorney.

But the law also allows a judge to act on his own without receiving a motion from either of the opposing sides in granting a new trial if he decides a defendant wasn't tried fairly.

The Sixth Amendment guarantees defendants competent legal assistance. Judge Fuente would have had to decide that Christopher's actions were "so egregious" that Rolon didn't get that, said Terrana.

Defendant Rolon declined to be interviewed from jail.

Christopher, 30, privately retained as Rolon's attorney, didn't return calls for comments. Numerous other attempts by the Times to reach him Tuesday were unsuccessful.

The Florida Bar Association lists Christopher as a member of its Young Lawyer's Division. Public records show he began work as an assistant Hillsborough state attorney in April 2005, the same month he was admitted to the Florida Bar. Five months later, Christopher no longer worked for the Hillsborough State Attorney's Office. It was unclear Tuesday why he left.

McCain, the juror, said she was surprised Rolon took the stand in his defense. He suffered from a speech impediment, she said. His attorney's questions seemed to confuse Rolon, she said.

"Sometimes he didn't know what the defense attorney was trying to get him to say," McCain said. "I think they usually practice those things. … It was sad. I think the guy's guilty, but he didn't get a good defense."

Judge Fuente's order noted that the attorney did not adequately prepare his client to testify. The judge wrote that Christopher said in open court that he had discussed Rolon's testimony with him for "less than five minutes."

"The unprepared defendant obviously did not know what questions his counsel would ask him," Fuente wrote, "and he made unsolicited prejudicial statements during direct and cross examination."

Bob Fraser, an attorney for 32 years, said what Fuente pointed out "are some fairly serious deficiencies in any defense case."

"It's the sort of thing that could follow (Christopher) throughout his career," Fraser said. "You're only as good as your last trial."

Norman Cannella Sr. couldn't recall seeing a similar order in his 36 years as an attorney. But he said he trusts Fuente's judgment.

"I know Judge Fuente extremely well, and I know he's a very fair and thoughtful person," Cannella said. "I'm sure he must have labored over this for quite some time and finally decided he had to do what he did."

State prosecutors have a legal right to appeal Fuente's order. Pam Bondi, spokeswoman for the Hillsborough State Attorney's Office, said the agency will review its options.

Rhianna Short, whose 28-year-old boyfriend Mario Robinson died in the Sulphur Springs shooting, witnessed the scuffle and testified at trial.

She'll do it again if necessary, she said. "It's very hard, but I have to do it," said Short, 22.

McCain, who once served as a juror in another case, said Christopher seemed to be constantly fumbling with his yellow note pad while attempting to defend Rolon.

"As much as I want to see this guy go to jail and pay for what he did because it was a brutal, brutal thing he did," she said, "I have to say the defense attorney was unprepared. He seemed lost."

She lauded Fuente for doing his best to ensure a fair trial.

"The judge was fantastic — very, very fair. He gave this guy every break in the world. I would have thrown him out of courtroom because he was an idiot," McCain said. "The judge was almost teaching him how to be a defense attorney."

Times researcher John Martin and staff writers Justin George, Kim Wilmath and Alexandra Zayas contributed to this story. Kevin Graham can be reached at kgraham@sptimes.com or (813) 226-3433.

CORRECTION: The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal trials the assistance of counsel in their defense. Earlier versions of this article cited a different amendment.

Citing poor defense, judge orders new trial in slaying 12/16/08 [Last modified: Tuesday, December 23, 2008 6:34pm]
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