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Larry King Live

Should There Be a Retrial in the 'Stop Sign Murder' Case?

Aired March 15, 2001 - 9:00 p.m. ET


LARRY KING, HOST: Tonight: a headline-grabbing verdict. Three young people found guilty of taking down a stop sign and causing a deadly car crash. And now their manslaughter convictions have been tossed out. Should there be a retrial? And why is one of the defendants behind bars?

Joining us from jail in Hillsborough County, Florida: Tom Miller.

Plus, his defense attorney, Joe Episcopo, with us in Los Angeles.

In Tampa: attorney Paul Johnson. He helped prosecute the stop- sign case.

Also in Tampa: the mother of one of the victims in the stop sign crash, Ann Hertle, and she thinks Tom Miller is innocent.

And in New York, "Court TV" anchor and former prosecutor Nancy Grace.

They're all next on LARRY KING LIVE.

Good evening. Two of the most compelling shows we have ever done were back in July of 1997. The focus: a notorious case in Florida. Three young people were accused of pulling down a stop sign and causing a fatal collision -- a collision between a Camaro and an 8-ton truck.

The defendants admitted to stealing other road signs, but they said they never laid a finger on the one at the intersection where the deadly crash occurred. After a dramatic trial, the three were convicted of manslaughter. The sentence: 15 years in prison. They were, however, released on bond, pending appeal.

Late in 1999, one of the defendants was arrested for DUI and drug possession. Tom Miller's bond was then revoked and he was put in jail, and he's still there.

Late last month, a Florida appeals court reverses the manslaughter convictions, citing fundamental error by the prosecution. If the reversal stands, Florida could decide to try the case again. Meanwhile, Tom Miller is heading back to court, hoping to get out of jail. Let's begin with him and then we'll bring our entire panel in.

Tom, you've spent 17 months in jail. First, what caused the drinking incident? Is that a true fact -- were you drinking the night you were stopped?

TOM MILLER, DEFENDANT IN STOP-SIGN CASE: Well, I pled not guilty to that. And the fact of the matter is I've done more time than I can receive for those charges, more time than guidelines call for.

KING: So you've served 17 -- and then, recently, they appeal the whole thing, and they win the appeal that you -- there was prosecutorial misconduct. So you're wondering why you're not out, right?

MILLER: Absolutely. I have been found not guilty and the state has decided to continue to fight the appeal, and I feel I should be released because I have been found not guilty.

KING: Found not guilty where?

MILLER: On the manslaughter charges.

KING: You mean they threw out the case?

MILLER: Yeah, they reversed the convictions, which puts me back to innocent before proven guilty.

KING: Correct. You are innocent, that's right. You have not been proven guilty. They could either retry or not. So all you stand for, then, is to go to court on the DUI question, for which you will also plead not guilty, right?

MILLER: Yes, sir.

KING: OK. There is a hearing, as I understand it, Monday.

MILLER: Yes, sir. That's for -- to talk about my bond, and to pretrial for the new charges.

KING: Well, how do you feel? Do you feel wronged?

MILLER: I feel -- I feel wronged. I feel justice has finally been served.

Last time that you and I talked, you know, I felt that I had no faith in the justice system, and now I'm starting to regain that faith after the appeals courts reversed the decision and said that we need to be given a new trial because of the way we were prosecuted in the case the first time.

KING: How did you hear about the reversal?

MILLER: Actually, I kind of heard about it by accident. I had called my lawyer to go over some stuff for my new charges and he said, "Forget that plan, your case has been reversed." You know, "We're going court to demand that you be released tomorrow morning."

And all I could say was, "Amen." And I was just overjoyed at the fact that the appeals court had seen that the prosecution overzealously prosecuted us, and that they were wrong in what they did.

KING: Now, hold it right there, Tom.

Joe, why isn't he just released from jail and then tried on the DUI, and then let the appeals go the rest of the way on however they go with regard to the stop sign?

JOE EPISCOPO, ATTORNEY FOR THOMAS MILLER: Well, you know, I'd like to know the answer to that, too.

KING: What's the court say?

EPISCOPO: Well, the court basically started the hearing two weeks ago, and decided that they would continue it, because there's a two-week period that the state has to ask for a rehearing of the appeal. So in effect, that's happened. They have asked for a rehearing. But nevertheless, he should have his bond reinstated. He's paid his price for the new offenses and it's time for him to get out.

Because really, the misconduct that was found in the trial is very, very small compared to the misconduct that occurred after the trail that we found out about. In other words, that argument -- that closing argument was nothing compared to what went on and what we found out about. And some of it because of this show.

KING: What do you mean?

EPISCOPO: Well, we received a call after this show.

KING: When we did the show last time.

EPISCOPO: In July of '97, about three weeks after they were sentenced, from a guy on an oil rig in the Gulf of Mexico. He was watching this show and he couldn't believe that they had been convicted because he had called the state attorney's office while the trial was going on -- he was a pipeline inspector. He worked right in that area, and he said that sign was knocked over by a truck, which is what we said all along. And the state didn't tell us about that witness. But he called us because he saw me on LARRY KING LIVE.

KING: Now, Tom Miller, you also insist, and insist to this day, while you did fool around with signs, you never touched that sign which resulted in the fatal accident, right?

MILLER: Yes, sir, and I've passed six polygraphs from the best in the country, and they all conclude that I'm telling the truth with highest score their computer can score me.

KING: Now, Ann Hertle in Tampa, you're the mother of Randall White, one of three teenagers who were killed. You do not think that Tom is guilty. Why?

ANN HERTLE, MOTHER OF RANDALL WHITE: There were too many inconsistencies in the statements made by the sheriffs' department. I followed the trial, my father followed the trial. It was broadcast on "Court TV." The...

KING: You just didn't believe it.

HERTLE: No. Right from the beginning. My father, my son, and my older brother went out to the accident scene early the next morning. At first the sheriffs' department, when they came at 4:00 that morning and told me Randall had gotten killed, they told me Kevin ran the stop sign, ran through the intersection. And I said, "What do you mean, ran through the stop sign?" It wasn't until next morning I found out by the media that the stop sign was down.

Then Sheriff Bradish came and explained to me that the stop sign was probably hit by Kevin's car, that they knocked it down before they went through the intersection. I questioned that, and said, "Well, can't you find out by the sign? By looking at the sign? Or the mirror on the side of the car?"

He said, "Yes," he said, "I'm going to check that out." He came back a couple days later and told me, "Well I checked it out," and he said there were no scratches on the mirror.

I said, "What about the sign?"

He says, "Well, we don't have the sign right now."

I said, "What do you mean, you don't have the sign?"

He said, "We don't know where it's at."

KING: Ann, I don't mean to interrupt, we've got a lot of guests. What I'm getting at is -- normally, you would think you would want this boy convicted. I mean, your son is dead.

HERTLE: I want the guilty party convicted. I want the guilty party or guilty parties convicted, and I never have felt, right from the beginning, that they were the guilty party.

KING: OK. Now, let me get a break and we'll hear from the other side. Paul Johnson was a prosecutor in the case, not the one who made the argument which was overturned, and Nancy Grace has covered this thing, and of course, was a former prosecutor herself. And then everybody will get into it and everybody will remain with us for the full hour. Don't go away.


MICHAEL HERNANDEZ, FATHER OF VICTIM: It's not up to us as to what their punishment is or isn't. I'm going to miss my son forever, and whether they spend one day in jail or 50,000 years in jail is not going to help me or my family one bit. We had to forgive them just to be able to live and to continue to move on. But they do need punishment, so that just maybe a few teenagers will get the hint.



CHRISTOPHER COLE, "STOP-SIGN" CASE DEFENDANT: I'm sorry she had to lose her son; I couldn't imagine what it would be like to lose my brother. Or any part of my family. And I wouldn't know what to do. I just want to tell them I'm sorry but I did not do it.


KING: Paul Johnson, you were one of the prosecutors in this matter, although yours was not the argument that was sought in the overturning. But one of the things they said in overturning the convictions was fundamental error, that the closing remarks poisoned the verdict. Described as purely circumstantial case, the court said that Leland Baldwin, the assistant district attorney, improperly implied that a sheriff's deputy was an expert on body language, told jurors that that expertise evaluated Miller's credibility; a lot things wrong; what do you make of that reversal?

PAUL JOHNSON, PROSECUTOR IN STOP-SIGN CASE: Well, quite frankly, the office was very proud of the work that Leland did, and we have, supported her, the comments were really an inference about the expertise of the officer, I was unfortunate. What the case shows or the opinion shows us is that the case was very close. And so the court really scrutinized her statements, probably more so than you will see any other prosecutor statement scrutinized.

KING: Were you surprised it was overturned, Paul?

JOHNSON: Personally yes.

KING: You were.

EPISCOPO: Wait a minute. Come on Paul. You know what happened, after the trial. You know all those witnesses came forward, witnesses were kept from us, you know that this case could not be tried...

JOHNSON: I don't know anything of the sort, please don't tell me what I know. First off, Mr. Brewster, the gentleman in the oil rig, called in -- he thought it was possible that the sign was pulled up, he didn't see it, he didn't know it. He just wanted that known and the secretary took the call, never passed it on to prosecutors, because that part was...

EPISCOPO: The secretary committed perjury, Paul.

JOHNSON: There was no way that that sign was knocked down, and we have no one coming forward saying it was pulled out; what we do have...

KING: Why, why, let me jump in, because I want to bring Nancy in too. Why Paul would a court come so harshly down as to prosecutorial misconduct? I mean, this is a...

JOHNSON: Again, look at the second thing when they looked at these statements and lumped them together, Miss Baldwin said one witness who testified that I believe they said they took signs down the night before, and in closing arguments, she said he was relatively certain. Those are close statements, the court said this is a very close case. And they really scrutinized her statements. And, the type of statements the inference that she gave, will show the level of scrutiny given them for the closeness of the case for the court to reverse it.

KING: Nancy Grace, bring you in already. What do you make of all this? What's your overview? Court TV covered this trial from day one, right?

NANCY GRACE, COURT TV: Yeah, I watched from the get-go to the very end. I'll tell you exactly what's going on here. Did you see Mr. Miller when you asked him, well were you driving under influence and by the way, there is a little charge of ecstasy lumped in with that -- it is not just DUI. He is sitting in jail with a DUI and ecstasy illegal drug charge as well, and this is after he has been convicted, after the judge has given him an appeal bond and he is out Scot-free, he wouldn't say no Larry, I wasn't DUI. He said, I plead not guilty.

And that is exactly what happened in the stop-sign case. They were caught dead in the water, in that, they already found where these three had thrown stop signs at the bottom of a local lake, so what else could they say? OK, yeah, I picked up the stop signs but not that particular stop sign, that is all they could say.

KING: Were you surprised as well, Nancy, before Joe jumps in, were you surprised as well that this was overturned?

GRACE: Yes, I was very surprised, and I want to point out that when the Florida court reversed the verdict -- overturned that verdict, they very carefully did not say, well ,there is insufficient evidence. They never said there is not enough evidence to convict, they picked out -- they singled out this prosecutor, used her closing argument and said, it was improper.

Remember, that jury heard the evidence, they can make out the evidence on their own, they don't need an appellate court telling them what they heard.

KING: Are they going to retry to your knowledge, Nancy?

GRACE: I would suspect that they will retry it. You've got three dead 18-year-olds, Larry.

KING: I know.

EPISCOPO: Nancy, let me straighten something out here, now. One of the appellate judges said there should have been an acquittal. He filed a dissent...

GRACE: One lone dissenter.

EPISCOPO: Well, you said they all said it. That is not true.

GRACE: But the majority opinion was that there was sufficient evidence to convict -- they agreed with the jury on that.

EPISCOPO: And they didn't throw stop signs into the river. They threw street signs and road signs. You are doing the same thing Leland did, you're misconstruing the evidence.


GRACE: ...threw them in the bottom of a river, so their only defense was, we didn't take that particular one. I could see straight through that and so could the jury.

EPISCOPO: In fact, Larry...

KING: I want to come back; I want to get everybody in; we will want to get Ann and Thomas as well; I will take a break and come right back; don't go away.


JUNE FARR, MOTHER OF A VICTIM: Our family, our life -- we have been hurt so deeply, we have been turned upside down, you ask your husband how they get through this, we do have a strong faith in God and we have forgiven these three people. I hate what they did. But I don't hate them. What they did was a horrible, horrible thing. They are not the victim, the victims are buried.



KING: Paul Johnson, before we get into the nuts and bolts, this is asked, just from the naive point of view of a Layman: Thomas Miller is not guilty of anything, at this minute. Why is he still in jail?

JOHNSON: For violating the appellate bond.

KING: But he violated a bond for something of which he is no longer convicted.

JOHNSON: Well, at this moment in time, in fact, the state of Florida just filed a motion for a rehearing today, so the appellate process is still going; he is still under his appellate bond; he is still -- strong evidence he committed these criminals acts while on bond -- the trial judge Mitcham, was very explicit that no one was going to be committing any crimes while I put you out on bond; he gave him the appellate bond on his own motion; he didn't make the defense to do it. He wanted to make sure...

KING: So you would keep him where he is...

JOHNSON: I think that is the decision of the prosecutors who are handling the case; it doesn't bother me, .

KING: Nancy, would you let Tom Miller out? Nancy?

GRACE: Well, it concerns me that after a jury conviction, after you've got the death of three 18-year-olds weighing on your conscience, and then you go out, and get ecstasy and drive DUI, driving in a car DUI? And I never did hear from Mr. Miller. Mr. Miller, Larry King asked you were you DUI on the night you were arrested? Were you drinking that night?

MILLER: My lawyers advised me not to talk about the case because it is ongoing, but I plead not guilty to the charges.

EPISCOPO: Let me...


EPISCOPO: Nancy, listen. Let's not go beating up on my client. You want to beat up on somebody, take a shot at me. Because I'll tell you right now...

GRACE: OK, was your client DUI that night? Did he have ecstasy in his car?

EPISCOPO: Nancy, even if he's guilty -- let's say he is guilty.

GRACE: Let's say he needs to be in jail and wait on trial

EPISCOPO: He served more time than the law allows for the offense, but no, you want to see him stay in there longer, don't you? get a kick out of that. Well, you know what...

GRACE: No, actually, I like the truth to come out in the courtroom again.

EPISCOPO: Oh, yes and you know what? When it comes out the second time, we are going to find out about all the evidence that was hidden from us, and all the other witnesses that were not revealed to us. You know what? If this is tried again, I welcome it; I welcome it...


KING: One at a time. I didn't hear who was speaking.

JOHNSON: May I address that Larry?

KING: Yeah, go ahead.

JOHNSON: The new witnesses -- all they are going to do is show that the stop sign was down during the weekend, a Wednesday February 7th crash, there was some issue of when the sign was down, many, many witnesses -- they were available before the trial; the civil case had them, the civil attorneys found them, the case was resolved before the criminal trial, no one just went across the street to find the records of those witnesses.

They are going to conclusively show the sign was down several days, three, four, five days before the crash, which matches when the defendants went out on their spree, stealing 19 signs, including another stop sign that night. You've got to remember, Nissa Baillie admitted, we parked while we were stealing those signs in the parking lot at Tim's Cafe, directly across the street from the stop sign -- that's absolutely true.

EPISCOPO: No way, Paul. That is not true.

KING: I have got to get another break. Ann Hertle, who do you think killed your son?

HERTLE: Can I say something to what Paul said earlier? First of all, he is saying that there were witnesses, that came forward that said the sign was down all weekend. There were witnesses that came forward that said it was down on Monday, on Friday, on Sunday, some said it was up on Monday, you know, and about the -- you said that the sign was not knocked down, and it was not pulled up, that it was unbolted. That was Leland's argument in court that it was unbolted.

Well, the pipe inspector came forward and said that sometimes that they unbolted the signs and laid them on the ground in order to turn the corners. Now, you said the other day...

JOHNSON: Unbolted? Makes no sense; he never said that.

HERTLE: You said other day just because they unbolted signs at other intersections, that they were working at, doesn't mean they unbolted that sign and took it down. Well, why can't we use the same reasoning...

KING: Who do you think...

HERTLE: Woman was just talking about saying just because they pulled down other signs doesn't means that they pulled down this one.

KING: Ann, who do you think did it? Do you have any idea?

HERTLE: I think the pipe truck did.

KING: The who?

HERTLE: The people -- the pipeline that was working out in that area.

JOHNSON: Larry, the pipe trucks -- they had independent steering on the back wheels; their steering pin in the front and make very sharp turns.

HERTLE: Do you know how long those pipe trucks? There's no way they could have turned that corner.

JOHNSON: I'm the one who investigated that. I can tell you. I also know...

EPISCOPO: Ann is a truck driver, Paul!

JOHNSON: You didn't sit in the trial, you didn't...

EPISCOPO: You haven't driven a truck! KING: Ann's a truck driver?


HERTLE: There were people that came in and testified, and said that they saw in the retrial -- they saw the truck having trouble turning that corner.

KING: We will come right back. We got a whole hour; we're also include phone calls -- don't go away.


KING: We don't want this to get more confusing because we think we are on track here. Nancy Grace, did I hear you say, you think that they want to sue civilly so that is why they are blaming the pipeline?

GRACE: No, I don't know why they would blame the pipeline, but it is my understanding that no one else is suggesting or intimated that they saw any one knock the sign down, so the allegation or the suggestion a pipe company or a power company is responsible, I'm wondering, Joe Episcopo; is there a civil suit in the works if a power company is deemed responsible?

EPISCOPO: No, Nancy and let me, again, let you know that there was another witness who did see a truck in the vicinity and then he saw the sign down.

GRACE: Having a hard time making a turn, but nobody saw a truck knock the sign down, am I right?

EPISCOPO: You know what the prosecutor did? She made fun of him in her closing argument, because of the way he was dressed and that is another reason they reversed it.

GRACE: I don't think they reversed it because of that, but they did mention it. I read the reversal; that is not why they reversed...

EPISCOPO: Nancy, there is one other thing if I might bring this up to you. Chris Cole -- you saw Chris there in the clip -- he was looking at 50 years, two weeks before the trial, and Leland Baldwin offered him probation, probation to testify against the other two.

Now, you know young people, you know they turn on each other, on roll on each other, why didn't he do that? Why did he not do it? Because they didn't do it. He wasn't going to lie and say they did it, to beat the rap for himself; he told the truth they didn't do it and he turned down the offer.

KING: Nancy, you are convinced that Thomas Miller and his two friends caused this crime; right?

GRACE: I'm convinced that the circumstances and the circumstantial evidence are so strong, that these three young people, maybe they intended a prank to start with, Larry -- they had pulled up 18 to 19 signs, in that area, thrown them to bottom of a local lake, not worried about what may come or what came, was the death of three 18-year-olds and I find the circumstances so overwhelming that I agree with the jury's verdict.

KING: Thomas Miller, do you feel any guilt at all?

MILLER: I don't feel any guilt because I have nothing to do with it. And my polygraph examination should speak for themselves; I took six polygraphs from the best in the country; I proclaimed my innocence all along. And like my attorney just pointed out, they came to my co- defendant when we were facing 50 years on the front page of the newspaper that said we are facing this time -- they offered him probation.

Had we have been guilty, I believe he would have took the easy way out and said yeah, this is what happened, I'm going to take the probation, but he didn't.

KING: Do you feel guilty, Tom, about the pranks?

MILLER: I feel bad that I got in trouble for what I did. I have learned grown up a lot since then, I realize that that is nothing I want to do. And like I said before, I had nothing to do with stop sign that killed those three kids and I don't have any guilt for the deaths of them, but I do have condolences for families and the fact they lost their kids.

KING: Paul, if the rehearings -- if they stand, and the appeal stands, as reversed, do you expect the state to retry?

JOHNSON: They are carefully reviewing the evidence now. There is no one currently in the office who had hands on experience with the case. Everyone who worked the case is no longer a prosecutor.

KING: If they asked for a recommendation, what would you say?

JOHNSON: Move forward with the case; they can make the case.

EPISCOPO: Paul, wait a minute.


EPISCOPO: Paul, I would like you to take a polygraph on whether you really sincerely believe these guys are innocent. And if you pass it...

JOHNSON: No, I don't believe they are innocent...

EPISCOPO: And if you pass it...

JOHNSON: I would like to talk about the polygraph. One, Joe has never given us any of the polygraph charts -- he hasn't sat Tom Miller for a state polygrapher, we don't know if he was taking drugs before or after; there was no drug test. He was never asked if he was present when the sign was down. No. EPISCOPO: ... would not let Dudley Dixon (ph) do the polygraph. We offered to do it; he said on this very show, he doesn't believe in him and he has a full time examiner on the staff, and he didn't believe in polygraphs. Come on, Paul. By the way, we could call Ed Gelb in L.A. He's the one that did the polygraph, get him on the phone, and he will tell you about his charts.

JOHNSON: If you want to examine all the evidence, we can look at the evidence, my recommendation will remain the same.

KING: OK, we will get a break, and get back to the other panel members, include your phone calls as well;

Kelsey Grammer tomorrow night. This is LARRY KING LIVE. Stay there.


FARR: They keep calling this a prank. A prank doesn't kill people. A prank is when you go out and toilet paper a house, you know, or something like that. Pranks don't kill people.

When you take down stop signs at intersections where there's a lot of traffic, and he had two other stop signs that he turned over to the deputies, not counting the one in question, but there's two other stop signs that school busses go through, that there's semi trucks going through, you don't do that for a prank. You take them down with intent of somebody getting hurt or killed, exactly what happened.

KING: Let's reintroduce our panel.

From his jail cell in the Orient Road Jail in Hillsborough County, Florida is Thomas Miller, one of three defendants in this stop sign case. He has spent the past 17 months in jail following revocation of his appeal bond. He's scheduled to be in court on Monday the 19th to try to have that bond reinstated.

Here in Los Angeles is his attorney Joe Episcopo.

In Tampa is Paul Johnson, who was a prosecutor in the stop sign manslaughter case, senior litigation specialist for the Florida state attorney's office, now in private practice.

Also in Tampa is Ann Hertle, the mother of late Randall White, one of three teenaged victims in the stop sign manslaughter case. She does not think Miller is guilty, and believes he should be out of jail.

And in New York is Nancy Grace, anchor of court TV, former prosecutor, has followed this case very closely. You are angry -- I want to take some calls -- but you are angry, Joe, over the fact that they've asked for a rehearing.

JOE EPISCOPO, ATTORNEY FOR THOMAS MILLER: Yes, and by the way, my co-appellate counsel, Randy Reader (ph) made the oral arguments and was very effective in having this case overturned. And I'd like to...

KING: And on what basis have they asked for the court to listen?

EPISCOPO: Well, they're making the same arguments. But to me, it's just outright meanness to do that, because now they can argue, "Well, he still has to have an appellate bond," see, if he's still on appeal, because they've asked for rehearing, he needs an appellate bond, and they're going to say....

NANCY GRACE, FORMER PROSECUTOR: Aren't you forgetting about all that ecstasy?

EPISCOPO: ... "Well, you don't get a bond, because of..."

There we go. There's old Nancy chiming in. I can just see her in the courtroom, right now doing that.

GRACE: Well, I'm just wondering. You still haven't answered whether he's DUI and had ecstasy in his car. In fact, you basically said it was just DUI. You didn't want to mention that ecstasy charge.

EPISCOPO: Nancy, he's served more time than the law will allow. What do you want him to do, put on hair shirt and beat himself with a birch branch?

GRACE: Wouldn't bother me.

EPISCOPO: You'd probably like to get in on that.

KING: Let me get a call. Port Richey, Florida, hello.

CALLER: Yes, hi. Good evening, Larry. This question for Joe.

, prior to this accident was there construction in that area, and could that sign have been left down by the construction?

EPISCOPO: That's, you know, that's my theory. When those big trucks were coming through in sequences with these, these are large pipes, gas pipes, that sign was taken out, it was put back. It was like a loose tooth. And I think one of those guys forgot about it. And honestly, they may not know who forgot about it.

Our theory was it got knocked down, but I believe now, after all the new evidence, that it was pulled up and left down every day. And people would probably put it back up and take it back down, and this particular time of night it happened to be down, and of course the driver missed the stop sign warning about a couple hundred feet before the intersection.

KING: Ann Hertle, mostly, we, I think the other two parents are convinced that they did do it, right?

Is that -- am I correct there, or wrong?

HERTLE: Yes. KING: The other parents involved. What switched you the other way? What happened in this matter, obviously you feel like dying, you've lost a son and people are arrested.

HERTLE: If you have truly...

KING: What changed you?

HERTLE: If anybody truly followed this trial, and what actually went on, through the whole thing, they would feel the way I do. In fact, my whole family does, all my friends do. I have had people walk up to me on the street and recognize me and say, "Oh, my goodness, aren't you Ann Hertle?" And I'd say, "Yes." And they'd say, "We can't believe that the state attorney's office is doing this to these kids."

You would not believe the sympathy around this area. You know, and Paul Johnson said something a few minutes ago that I'd to like to respond to. Paul, the other day, when we left the Kathy Fountain Show, you said that in your heart you felt like they were guilty, but yet -- and you said this in front of Kathy Fountain -- but yet you wouldn't prosecute this case again. Now you're saying you would?

JOHNSON: No, I did not that say that. Ann, you misunderstood me. I didn't say that.

KING: What did you say?

JOHNSON: I don't recall that specific statement. I know what I believe.

KING: By the way, they are guilty of grand theft, right?

EPISCOPO: We never challenged the issue of the grand theft because they admitted that from day one, and they get written confessions.

KING: Why can't they be given, why can't be given terms, why can't they not retry on the deaths, but give them jail time for grand theft?

JOHNSON: That's in the discretion of state to do that, but they didn't admit to signs at first. They only admitted to it later.


KING: (UNINTELLIGIBLE) you each get five years for grand theft?

EPISCOPO: Well, first of all, if that was their only offense, and they have no prior offenses, they're not going to get five years. They're going to get probation, you see. It would it be a first offense.

KING: But it's a guilty.

EPISCOPO: They're not challenging that. They took those signs. KING: So they are guilty of that.

EPISCOPO: Of grand theft, and, but, you know, there was no fingerprints on this sign, and you know, you've lost Larry Jarrard. We've got to talk about Larry Jarrard.

KING: Who is he?

EPISCOPO: Larry Jarrard was the key witness that tied the sign- stealing spree to the accident. Assistant state attorney Leland Baldwin needed a witness to say that they took the signs the night before the accident.

And Larry Jarrard was supposed to say that he was relatively certain. But when he got on the stand he obviously knew he didn't know what he was talking about. He said, "I believe." She still went ahead and gave the statement that she wanted him to say. She told him she was going to burn his ass.


GRACE: You didn't finish that, you didn't finish the whole statement to Larry. What he believed is that the defendants had confessed to him that they took down that stop sign.

EPISCOPO: No. No, that is not it. He believed that they took their signs the night before the accident. By the way, he recanted...

GRACE: Including that one. Including that one.

EPISCOPO: No, he did not say that.

GRACE: Um-hmm.

EPISCOPO: He didn't say that. They had no witnesses to say that, Nancy -- none.

GRACE: And then he recanted.


EPISCOPO: And he's not a witness anymore.

JOHNSON: Larry, Larry Jarrard was just one spoke in the wheel of many spokes in the wheel. He was cross examined for 2 1/2 hours. I honestly don't believe any unbiased, reasonable person can feel he's believable. He's covered for the defendants in past.

He's their friend, he helped them dispose of signs the night of the crash -- night after the crash so they wouldn't be implicated. He was found with them when they found the defendants. They were taking railroad spikes off a train trestle. No, he's covered for them in the past, he wasn't believable.


HERTLE: But yet Leland Baldwin (UNINTELLIGIBLE) state attorney's office was using him as a key witness

KING: Kennewick, Washington, hello.

CALLER: Hello. Yes, this question is for the prosecutors. I wanted to ask, if these, if these guys were convicted of their 15 year charge, why in the world would you think that for a young adult serving time in the prison system would be, you know, the best -- in the best interest for them for even rehabilitation?

Why you would even think that something that, especially if you don't even have, you know, the you guys, the way that everything has been, it's everything is kind of irrelevant, you don't have a whole lot of proof, and so putting them in there while they're facing these charges is kind of a steep...

KING: All right. How do you respond to that, Paul?

JOHNSON: One to that issue, I think the case is stronger than she would suggest. I know it's a close case. It's a circumstantial case, but I really, in my heart, can't concern myself with the sentence. That's a decision of the judge, and, you know, I'm not going to comment on that one way or the other...

KING: We don't have a sentence yet, do we?

JOHNSON: Well, the sentence was 15 years in jail.

KING: The sentence was 15 years.

EPISCOPO: It's been reversed.

KING: All right, We'll come right back with more calls and more questions. Don't go away.



NISSA BAILLIE, STOP-SIGN CASE DEFENDANT: I would say I'm sorry that he had to lose somebody that close to him. But for him to believe in his heart and his mind that -- that me and Christopher and Tommy took down a sign that killed his son is wrong, because we are innocent, we never touched it.

But all I can say to him is I'm sorry, you know, that it ever had to happen.


KING: Thomas Miller, you have been in jail 17 months. Now, jail is supposed to be only up to a year, either pending trial if you don't have bail, or if you are sentenced for a year or less. So, you probably spent more time in that jail than anybody spent, right?

MILLER: Well, Larry, there is people. If you are pending trial and whatnot, you can be held over a year. You can't be sentenced to over a year, the most they can sentence you to is 364 days in the county jail.

KING: So, you have seen them come and go?

MILLER: I have seen a lot of people come and go. I have seen somebody in particular come back to the jail six times since I have been here. And all I'm asking for is one more chance to prove myself.

KING: Boca Raton, Florida, hello.

CALLER: Good evening, Larry. I would like to speak to the lawyer that represents the three.

KING: Joe Episcopo only represented Tom Miller, but go ahead.

CALLER: All right, but that is the gentleman I would like to speak to. Joe, I have a question to ask you, especially your client, and the other two, were they ever in trouble before?

EPISCOPO: Before this incident?


EPISCOPO: The other two were never in trouble before this incident. My client had some juvenile offenses.

KING: You have follow-up, sir?

CALLER: I'm sorry?

KING: Do you have another question?

CALLER: How about since the incident? Did any of the other two get into any kind of trouble?

EPISCOPO: No, if they did, they probably would have had their bonds revoked like Tom.

KING: So, sir?

Oh, I see. I guess his point being, Joe, your guy got in trouble.

EPISCOPO: Oh, yeah! Listen, there is no question he got in trouble, but it's time to let him out. If they want to make a decision on a retrial...

GRACE: Didn't he say that, for one more chance, Joe? I forgot about those juvenile offenses: auto theft, driving without a license and marijuana. So, this would be his third chance, right?

EPISCOPO: Well, so what, Nancy? What are you trying to say? He took the stop sign because of that?

GRACE: I'm just saying that he just said, "I want one more chance," but actually he has had several chances.

EPISCOPO: But you are arguing that he should be convicted of something he didn't do because of his juvenile record?

GRACE: No. I'm saying...

EPISCOPO: That doesn't sound like you, Nancy. You are not like that.

HERTLE: No, that's not what I am saying. You are right, I'm not, and that's not what I'm saying. I'm saying a grand jury indicted him, a jury convicted him...

EPISCOPO: No, no, no, it wasn't a grand jury, no.

GRACE: ... a judge affirmed the conviction, and appellate court said there is sufficient evidence to convict! So no, I'm not saying he should be wrongfully convicted. I'm saying he was rightfully convicted.

EPISCOPO: No, the appellate court reversed the conviction.

HERTLE: I know that, but not because of lack of evidence. They did it based on closing argument by the prosecutor only.

EPISCOPO: Judge Blue, one of the judges, said there was not enough evidence, because Larry Jarrard is out of the picture. They have no tie-in anymore.

KING: That prosecutor is now a private practicing attorney, correct?

EPISCOPO: Yes, that's correct.

KING: Has she commented about this reversal?

EPISCOPO: I think she issued a written statement...

KING: Saying?

EPISCOPO: That she stands by her work that she did in the state attorney's office, and she never prosecuted anybody that wasn't guilty or something...

KING: Paul, prosecutor should always be certain -- and we know this is circumstantial -- are you certain that Thomas Miller and his two friends caused this crime?


EPISCOPO: But we want to get Ed Gelb out here to put you on the box on that, because I don't really believe you believe that, Paul.

JOHNSON: Can I get a list of questions for Joe to take a polygraph on? This is going to be fun. We will submit our questions.

KING: Do you think Paul is not telling the truth about his own feelings?

EPISCOPO: I think sincerely he has got to understand. He knows about all the evidence that came out afterward.

JOHNSON: Yeah, I do...

EPISCOPO: See, we are just looking at the trial, and he understands that that's overwhelming -- this thing about the pipeline inspector and all these other witnesses, and the fact they have no Larry Jarrard. There is no way they could...

GRACE: I don't know you why keep saying that about the pipeline inspector...

JOHNSON: The new witnesses helped the state. You don't have to rely on anyone to set -- Larry Jarrard -- to set the time of thefts. We've got plenty of witnesses, eight to 10 witnesses, that can say when the signs were down. It actually helps the state; I don't understand why Joe keeps saying it helps him! I still don't -- can't figure it out.

KING: And Ann Hertle, you firmly believe that someone responsible for this has not been caught, arrested, apprehended, charged?


KING: So, your son is dead, and no one knows who did it, in your opinion? You certainly think Tom Miller did not do it?

HERTLE: I know Tommy didn't do it. I know Nissa didn't do, and I know Chris didn't do it.

KING: We will take a break, and we'll be right back in this extraordinary matter. Don't go away.


KING: Let's take a call. Las Vegas, hello.

CALLER: Hi, I wanted to ask Paul. If you do plan to reprosecute, is there any plan for a plea bargain?

KING: Now, Paul wouldn't be part of that decision, because he is a practicing attorney now. Is there a plea bargain do you think possible here, Paul?

JOHNSON: Oh, I think that's up to the state, but I think there is a strong possibility. It was obviously considered before the first trial.

I disagree with Joe that Christopher Cole turning down the plea offer indicates innocence. They thought they were all going to walk. They employed distinct strategies, very confident of victory, and they were wrong. So you know, I can't speak for the...

EPISCOPO: Paul? There is not going to be a plea offer.

KING: Well, they are dead in the water on grand theft. EPISCOPO: Our offer is this offer: we do not want them to try this case again, that's it. Of course they are guilty of the grand test of the signs, they have to be re-sentenced on that. They have been sentenced on incorrect score sheet, because of the homicides.

KING: So can we come to some arrangement, save the state some money. They do some time on the grand theft, that is applicable to whatever time is supposed to be served on a grand theft, and....


JOHNSON: Larry, that's really a call for the state attorney's office, the current administration. I can't speak for them. I know they are carefully looking...

EPISCOPO: No, Paul, it is not their call!

JOHNSON: It is their call.

EPISCOPO: It is not their call! A plea bargain involves the defendant and the judge. It is not their call.

JOHNSON: My point being it's their call whether to proceed with the case, and whether they are going to extend offers or not. I can't speak for them.

KING: Nancy, would you suggest that they sit down and try to bargain this?

GRACE: Sure, yes, I would suggest, because dragging the victims' families back through this is just -- it's excruciatingly painful. I know, from being a victim of a violent crime. But I can tell you this much: as a prosecutor, if I truly believed these three were responsible for three deaths -- Larry, their car was ripped open like can of tuna -- and if I thought these three were responsible, I wouldn't take a plea on grand theft. I would seek a verdict that speaks the truth.

KING: Statesville, North Carolina, hello.

CALLER: Hi. I'd like to ask Thomas Miller why he thinks that we should trust him when he can't even seem to stay out of jail while he is on bond.

KING: Tom?

MILLER: Well, ma'am, I've been in jail for the last 17 months, and in the state of Florida, rehabilitation is not really in. It's all about punishment. And for the last 17 months, I've done nothing but use my time wisely and rehabilitate myself. I have gone through every program the jail has to offer, from the drug program to the food nutrition program. I work every day, I don't have a problem.

My -- the sergeant that I work for even talked to my lawyer and talked about how good of a person I am. I have had no disciplinary writeups since I've been here for the last year, and, you know, I've done everything I can to better myself. And I've grown up.

KING: Joe, are you doing this case... you doing this case pro bono?

EPISCOPO: That's correct.

KING: Not get any money from anyone.

EPISCOPO: Well, for the trial, I was paid, but ever since the trial, no. I've got to stick with my client because he's not guilty, and I feel really bad that he got convicted on my watch.

KING: Do you take it personally?

EPISCOPO: I certainly do, because of the way it was handled. It was -- this whole case was definitely built on perjury, subornation of perjury, and those -- somebody's going to answer for these 17 months.

KING: You're saying they were out to get these kids.

JOHNSON: Absolutely not.

EPISCOPO: There was -- yes, there was someone trying to make their name on this case. They wanted to make that name for themselves.

JOHNSON: Absolutely not.


GRACE: I wonder who that could be, Joe?

JOHNSON: Absolutely not.

EPISCOPO: Let me tell you something, Nancy. This not the way I would want to do it.

KING: Let me get a break and we'll get a sum-up from everyone involved here on this edition of LARRY KING LIVE. Don't go away.


KING: Ann Hertle, this would be purely a guess, do you think you will get finality here to your satisfaction?

HERTLE: Not until the people responsible are caught. And let me tell you what she just said about, "I wonder who that was." Leland Baldwin came out to the press before Tom and Joe did. You're trying to make it sound like Joe is a media hound, here, and he's making a big deal out of this -- No, it wasn't started by Joe.

KING: All right. Paul Johnson, do you think this going to be -- what do you think's going to happen? You're on the sidelines now, so what do you think?

JOHNSON: Well, actually, what I want is a citizen and someone who follows our legal system and that's a part of my life. I just want justice to be served, and let's not predict where that's going to take us. And I do support Leland's work in this case all the way through. She and I still remain good friends. I wish her very well.

KING: Nancy, what do you think?

You've been around a long time. What's going to happen?

GRACE: Yeah, I have. Larry, I watched Joe Episcopo try this case. He gave it 200 percent. He did a heck of a job in front of that jury, and I believed in what he was doing. But what I believe in more than that is this jury verdict. They heard the evidence. They rendered a verdict, and I think they were right. And as on behalf of the victims, I think that this case should be retried, for the same verdict.

KING: Should be retried.

GRACE: And I think the same verdict will be reached.

KING: What do you think is going to happen to you?

MILLER: Larry, nothing would surprise me. From what I hear, they're not sure whether they're going to retry it right now, but if they did, it certainly wouldn't surprise me. But I know that if it is retried, the second go-around, with all the witnesses and without the deputy sheriff saying to look in my eyes when I look down, as I did my whole younger years, they're possibly -- you know, they're going to come back with not guilty verdict.

KING: So, if it were to lead to a new trial you say bring it on.

MILLER: Well, I'm confident in my lawyer, and my defense team, Randall Reader and Katherine Sly (ph), who worked on my trial before. Had they had the evidence that they do now, we would have got a not guilty plea the first time around.

KING: Joe, what do you think's going to happen?

EPISCOPO: Well, I'm really hoping that the new state attorney, Mark Ober, will understand all the things that I presented to him in the last two weeks.

KING: Was he in office when...

EPISCOPO: No. He is brand new, and I think he'll do the right thing. I really think he should agree to let Tom out of jail pending the decisions they want to make. Now, the judge has discretion to do, we're going to ask him. But it would it be nice if, as a gesture of a new administration trying to bring in some reform, to do something about this stop sign case. This stop-sign case is a stain on Hillsborough County, and this has to be removed.

KING: Are we going to have resolution?

EPISCOPO: Well, you know, resolution. KING: Do you think?

EPISCOPO: I don't know, people are still -- there's still controversy. People still...

KING: Well, you think that the real culprit's out there somewhere.

EPISCOPO: Yeah, and he may not even know who he is. That's the whole problem.

KING: You mean it may have been accidentally knocked over.

EPISCOPO: What if a truck backed into it and drove off and didn't even know? I mean, there's a lot of things that could have happened.


JOHNSON: No one backed into that sign.

EPISCOPO: Come on, Paul, you don't know that.

JOHNSON: I know that. It showed no evidence of it. It wasn't snapped off.

HERTLE: The stop sign didn't have scratches on it. Nobody ran that stop sign down.

EPISCOPO: It was torn.


EPISCOPO: That thing was torn.

HERTLE: It was torn out of the ground.

EPISCOPO: No, the sign was torn. It takes 50,000 pounds of pressure to put that four-inch gash that was in it.

JOHNSON: Two experts testified it was pulled out of the ground, just like he said they did.


HERTLE: Right, and she's wrong when she said all the evidence was heard by the jury. All the evidence was not heard by the jury. That was -- that's wrong. All the evidence was not heard by the jury. There was evidence that was suppressed, the chain of evidence was broken.

KING: Thank you all very much.

HERTLE: Part of the stop sign was missing...

KING: OK, we're out of time. Thank you. Thank you very much, Ann. Thank you, Thomas Miller. Good luck, no matter how it comes out. Joe Episcopo, Paul Johnson, always nice having you with us, Nancy Grace.

And don't forget, tomorrow night Kelsey Grammer is our special guest. On Saturday night, a major program on heart disease, and Sunday night, eight Oscar nominees.

And check out "Larry's Book Corner" on my Web site, where each month we'll tell you what I've been reading lately and my favorite books. Just log on to

Stay tuned now for "CNN TONIGHT." And good night.



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