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Sunday, Mar 12, 2006

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Posted on Sun, Mar. 12, 2006

Prosecutor is a pragmatist

A prosecutor known for hearing out all sides and relying on staff input will decide whether a boot camp death merits criminal charges against officers of the camp.

BY ELINOR J. BRECHER

ebrecher@MiamiHerald.com

TAMPA - At six-foot-five, Mark Alan Ober, the Hillsborough County state attorney, is a big man, and he's facing the big job of determining whether boot camp personnel should be criminally charged in the Jan. 6 death of 14-year-old Martin Lee Anderson.

It's a job that could be made easier -- or harder -- after a second autopsy Monday on the boy, who died after guards at the Bay County boot camp kneed and punched him as he complained he couldn't breathe.

If Ober charges the guards, law-enforcement allies might be angered. If he doesn't, he's bound to upset members of the public sympathetic to Anderson's family.

After a controversial medical examiner's report said Anderson died of natural causes linked to sickle-cell trait, Gov. Jeb Bush asked Ober -- who has done two stints as a prosecutor punctuated by 13 years as a criminal defense attorney -- to investigate.

Ober, 54, won't discuss the Anderson case -- apart from acknowledging a trip to Panama City two weeks ago -- but talked about other cases that could shed light on how he might approach this one.

Doing so, he implied that wearing a uniform won't protect anyone he believes broke the law.

Early in his career, Ober prosecuted narcotics officers who planted drugs on suspects and sent ex-Tampa cop Charles P. Norman to prison for life for first-degree murder.

''Those of us in positions of trust should be held to higher standards,'' said Ober, on the board of directors of the Tampa Bay Area Chiefs of Police Association. ``It's our obligation to conduct ourselves ethically and honestly.''

Tampa defense attorney Nick Matassini, like Ober, a South Texas College of Law graduate, thinks Ober will stick to the law.

He calls his style ``not hellfire and brimstone [but] methodical and low-key. . . . Politics won't be a consideration when he decides what he's going to do.''

By definition, he said, any case ``involving law enforcement and the death of someone in custody [is] a political hot potato.''

Hillsborough County Public Defender Julianne Holt, whose attorneys face off against Ober's in court daily, thinks Ober won't bow to pressures from either side.

``He will meet with each side and explain things. . . . He truly believes it's his job not to pass his responsibilities on to anyone, including a jury.''

She said Ober is ``certainly taking the assignment seriously, and he's a dad, too.''

One with some idea how it might feel to lose a child. His son, Mark A. Ober Jr., 25, the father of two young children, is in remission from cancer.

Ober also has a daughter, speech pathologist Jennifer Ober Hamilton, 29.

Holt said Ober will ``probably be able to put the victim's family at ease. He'll take time to speak to them and their attorney.''

If he does, he's likely to explain that ''emotion is not relevant to the prosecution of a case,'' Ober said. ``Generally, when you have that conversation there is a better understanding of how the legal system will conduct itself.''

Holt cites another hot-potato case as evidence of his pragmatism.

In 2001, after the 2nd District Court of Appeal tossed their convictions because of prosecutorial errors, Ober dropped manslaughter charges against three teens who stole stop signs, causing a 1996 wreck that killed three other teens.

''In a case like that, you not only have public outcry but internal pressures in your office,'' Holt noted. ``But he did it for all the right reasons.''

POLITICS NOT A FACTOR

Ober, incoming president of the Florida State Attorneys Association, insists he doesn't worry about political fallout and swears he has no aspirations to higher office.

'That's `no' with a capital N,'' he said. ``My parents taught me that if you find a job you love, you'll never work a day in your life. This is my niche.''

At least one critic doesn't buy Ober's claim of indifference to pressure: Robin Fuson, the former prosecutor who ran against Ober in 2004.

''He'll do whatever keeps him in the best light,'' Fuson said. ``A lot of times, politicians make decisions that are popular to help their chances of reelection, to stay liked by everybody, rather than do what's hard and what's right.''

But if Ober, an avid fisherman, loses his next election, Matassini predicts hewill simply ``grab a fishing pole . . . and go back to practicing law and make a lot more money.''

A steady parade of assistants and staff through Ober's office bespeaks a casual, open-door atmosphere. They joke about his bad driving, his fishy-smelling 1992 Chevy Blazer, his sartorial deficiencies -- the soles of his size-12 black loafers have holes the size of quarters -- and the building's rat infestation.

Born in Ames, Iowa, Ober spent part of his early life in the tiny rural town of Conrad, population 800.

''If I did anything wrong, my parents knew about it before I got home,'' he said. ``There was no police officer and no jail. We didn't need one.''

He worked his way through the University of Florida at a slaughterhouse, earning a bachelor's degree in English in 1973.

He says he became enthralled by lawyers as a teenager, especially after hearing State Attorney Emilio Jose ''E. J.'' Salcines, now a Florida Appeals Court judge, give a commencement speech.

Ober ''sees the role of the public prosecutor not to seek convictions but to see that justice is done,'' said Salcines, who hired him out of law school in 1977. ``That tells me that if any [boot-camp] personnel did anything wrong, he's going to find it and not cover it up.''

WRONG IDEAS

Ober thinks that television gives people the wrong idea about prosecutors -- that they consider conviction the only acceptable outcome. He reaches for a poster-board bearing what he says is ``the credo for this office.''

It reads in part: ``Prosecutors have no more important responsibility than to follow the facts and law regardless of popular passions or political consequences.''

Popular passions still run high in Tampa about the 2004 case of Jennifer Porter, a white teacher who ran over and killed two brothers, 13 and 3, and injured their sisters, 8 and 2.

Ober maintained that because she wasn't speeding, reckless or drunk, vehicular manslaughter couldn't stick. He charged her with leaving the scene.

Tampa NAACP president Sam Horton still objects.

''They tried to say there is a technical aspect in the law that she had to be driving a certain speed. My rejoinder is that if a car hits three and two are dead, it's homicide, a closed case,'' he said.

Citing the Porter case, the Florida NAACP said last week it is ''gravely concerned'' about Ober leading the boot camp investigation, though it did not ask that he be replaced.

But David Menschel, a New York lawyer with the Innocence Project, which worked to free Alan Crotzer after 24 years in prison for rapes he didn't commit, praised Ober.

Citing DNA evidence, Ober asked a judge in January to toss Crotzer's conviction.

''He allowed us to get three rounds of DNA testing, which is extraordinary,'' said Menschel.

``He deserves a lot of credit for allowing the defense attorneys to bring the truth to light.''

Fort Lauderdale attorney Marty McClain represented Rudolph Holton, freed in 2003 after 16 years on death row for a 1986 rape-murder.

After the Florida Supreme Court ruled Holton was entitled to a new trial, Ober decided not to reprosecute.

McClain said that prosecutors in other counties haven't been so sensible.

``It could be a fear [that] it will open the door to taint other cases. . . . I get the impression that Ober does not let that fear influence him.''

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