By Colleen Jenkins, Times Staff Writer
In Print: Saturday, July 31, 2010
TAMPA — On May 4, 1995, the Florida Supreme Court struck down the offense of attempted first-degree felony murder.
Six days later, a lower appeals court upheld the attempted murder convictions of two Lakeland men who committed Hillsborough County's most notorious hate crime.
In court Friday, defense attorneys argued that Mark Kohut and Charles Rourk received life prison sentences for a crime that for a small window in the state's history did not exist.
The men, who maintain their innocence, want their convictions overturned and a new trial.
"The sentence is illegal if the crime was nonexistent," said Assistant Public Defender Robert Mactavish, who represents Rourk.
Circuit Judge Michelle Sisco took the issue under advisement Friday after a two-day hearing.
Though she did not rule, the judge seemed to put stock in case law that favors the defendants.
If Kohut, 44, and Rourk, 50, win relief, it would be the latest twist in a bizarre case that drew national attention.
On New Year's Day 1993, the white men kidnapped a black tourist from a Valrico shopping center, doused him with gasoline and set him on fire.
They laughed and yelled racial slurs as Christopher Wilson suffered burns on nearly 40 percent of his body.
The trial was sent to West Palm Beach because attorneys couldn't pick an impartial jury in Tampa. The lead prosecutor quit after a public dispute with his boss, Hillsborough State Attorney Harry Lee Coe, who took over the case and was criticized for his eccentric courtroom behavior.
Prosecutors presented jurors with dual theories of attempted premeditated murder and attempted felony murder, which means the act was committed during the commission of another crime.
Jurors received instructions on both theories.
The verdict form, however, did not indicate which type of attempted murder jurors believed the men committed.
On Friday, Assistant State Attorney Douglas Crow said there was overwhelming evidence of premeditation. He suggested that jurors may have thought Kohut and Rourk were guilty under both theories.
"But the point is, you don't know," Sisco said.
Crow questioned the timeliness of the men's quest.
"It's a nightmare to try and go back and re-create this case after 17 years," he said.
Sisco and defense attorneys cited case law that said a conviction for a nonexistent crime amounts to a fundamental error that can be raised at any time.
The Legislature reinstated attempted felony murder effective Oct. 1, 1996. But the state Supreme Court decision that abolished the offense temporarily applied to all cases that were pending on appeal at that time, including Kohut and Rourk's.
"It's tragic that it wasn't caught then and there," the judge said. "But it wasn't. So here we are."
Defense attorneys also argued Friday that shoddy work by an FBI agent who conducted the hair and fiber analyses in Kohut and Rourk's case discredited the state's entire investigation.
They said the judge should set aside the men's kidnapping and robbery convictions, along with the attempted murder charge.
An independent scientific review completed in 2001 found that the FBI agent's notes were written in pencil, not pen, lacked dates and contained abbreviations that were hard to understand.
The report concluded that the agent's testimony at trial was inconsistent with his lab notes.
"I think (the new evidence) would have further weakened this case and would have resulted in an acquittal," said Kohut's attorney, Daniel Hernandez.
Prosecutor Kristen Mendoza said the conclusions drawn by the defense were "based on large leaps of logic and reading more into this report than actually exists."
Mendoza said the issues raised in the review did not question the agent's findings and would not have affected the outcome of the trial.
The agent's lab tests revealed no physical evidence to link either Kohut or Rourk to the crime scene — a point the defense touted during the trial.
Sisco noted the irony of the current defense strategy Friday.
"You would be impeaching one of your star witnesses," she said.
Colleen Jenkins can be reached at firstname.lastname@example.org or (813) 226-3337.