A Pugilist in Pinstripes
The objects that adorn Alberto Milian's office in the Broward County courthouse in Fort Lauderdale tell more about the Cuban-born prosecutor than the words that pour forth from his mouth ever could. Behind Milian's desk is a red, white, and blue United States Army banner. Taped to the door is a front page from the New York Daily News featuring President Clinton. The headline: "Liar, Liar." Sitting on his desk is a coffee mug that reads, "Bald Men Don't Waste Their Hormones Growing Hair." A poster from a Rodin exhibition hangs across from his desk.
More telling than any of these mementos of machismo and patriotism, however, are the framed portraits of boxers that grace the walls: Rocky Marciano after felling Jersey Joe Walcott, Jack Dempsey in a George Bellows print. "I've always admired the courage of the individual in boxing," says Milian, his intense eyes so dark it's almost impossible to distinguish the pupils. "In the end, whether he wins or loses, he is always by himself."
In his 11-year career as a Broward County prosecutor, Al Milian, as many people know him, has often applied the manners of the boxing ring to the courtroom. He is a pugilist in pinstripes.
The son of a renowned Miami radio host, Milian, age 38, once referred to jurors who returned an unfavorable verdict as "lobotomized zombies." In another case the prosecutor characterized defense attorneys as "maggots" and "poor excuses for human beings." Milian has physically threatened some of his courtroom adversaries. "I never have a nice relationship with the defense attorney," he admits.
In February he took a nasty jab himself from the 4th District Court of Appeals. "Apparently this prosecutor has not learned from our previous comments that his improprieties have brought repeated discredit to the office of the State Attorney in the Seventeenth Judicial Circuit by his failure to comply with the canons of advocacy," the opinion stated. The appeals court then called on the Florida Bar to take disciplinary action against Milian, an almost unheard-of step. It was the fourth time in the last six years that the appeals court had rebuked him by name for prosecutorial misconduct -- a record that few attorneys, in South Florida or anywhere, approach.
"I've tried cases in that courthouse for 25 years, and I can't name another prosecutor that comes close to him," says Patrick Rastatter, a Fort Lauderdale defense attorney who has successfully argued appeals in two of Milian's cases. "The guy's a psycho. He really is."
But as it turns out, both the 4th District Court of Appeals and Rastatter are guilty of the equivalent of delivering low blows. In writing its opinion, the court attributed to Milian one case he never prosecuted. In another trial cited by the court, Milian's histrionics, while outrageous, took place after the verdict had been delivered. While Milian may be guilty of bad manners and an insatiable ego, he's a successful prosecutor who has the full backing of the state attorney's office.
It's mid-April, and Alberto Milian does not look like a psycho. Dressed in a dark, conservative suit, he is in Judge James Cohn's courtroom, getting ready to present his closing argument for what has turned out to be a three-day trial. Although his hairline is receding and his meticulously maintained mustache is flecked with gray, Milian's face is baby smooth. He has the build of an aging welterweight -- robust but a few beers past his prime.
Milian deals with the dregs of the criminal-justice system, the habitual offenders. Most of the men he prosecutes (almost none are women) have committed at least two previous felonies. They are facing long stretches in the slammer.
The black man in the defendant's chair is accused of armed robbery. Brandon Hall and a friend allegedly shoved a short-barreled shotgun in the faces of two men in the Carver Ranches section of Hollywood and made off with their money. "They ran the risk of committing a murder, killing another person, for $55," Milian will say later.
For good measure Hall is also charged with resisting arrest (for giving a false name to the police) and possession of an illegal short-barreled shotgun. Although he is not considered a "habitual felony offender," as defined by the State of Florida, he is well on his way: He has been convicted of two previous felonies as an adult, for grand theft and possession of cocaine. Hall will turn 19 years old this week, and he could be reunited with his father in jail: Donald Hall is serving a life term for second-degree murder.
This case hinges on the credibility of Brandon Hall's alibi witness, who claimed in testimony that Hall was with him at the time of the robbery. Hall was picked up by the other suspect immediately after the robbery was committed, the witness told the court.
Just before closing arguments get under way, another prosecutor stops by the courtroom. "I came by to give Mr. Milian some moral support, since he's such a shrinking violet," he says, garnering a laugh from the amiable Judge Cohn.
Closing statements sometimes get Milian into trouble. But as he prepares to appeal to the jury for a conviction, he shows no evidence of being burdened by the appeals court's recent opinion. "If you let that bother you too much, that there's some judge gunning for you up there in the appellate court; that can only detract from you as a prosecutor," he explains later.
Milian's statement to the jury is passionate but controlled. His eyebrows rise, and the lines in his forehead furrow deeply when he gets agitated. He speaks eloquently and without notes, a hint of Cuba still evident in his voice. Gesturing with his hands and brandishing evidence before the jury, he argues with the panache of a TV-drama attorney. "Common sense, when you add this evidence up, points to guilt beyond a reasonable doubt," he tells the jury.
The evidence is substantial, and Milian pounds it into the jurors' heads: the short-barreled shotgun, the ski mask, and the bullets that were found in the black-and-white Oldsmobile in which the defendant was riding; the victims, who identified Hall and his cohort as the perpetrators almost immediately after the crime; and the testimony of police officers who pulled the pair over in Miramar, just minutes after the robbery, for doing 95 in a 45-mile-per-hour zone.
"The evidence -- and the law, I think -- mandate that he be found guilty," Milian says.
On a few occasions he approaches the nebulous line of verbal impropriety. He testily picks at the one roadblock to a conviction: the defendant's alibi witness. He attacks the witness' credibility, noting his criminal record. "That testimony, I will submit to you, is absolutely worthless," Milian, wielding a blue pen, tells the jury of four men and three women. He refers to the alibi witness' account as "preposterous."
The defense attorney, who is arguing his first criminal trial, fails to raise an objection.
Attacking the credibility of a witness may seem like standard courtroom practice, but in the opinion of the 4th District Court of Appeals, closing statements sometimes cross the line between rightfully pointing out discrepancies in trial testimony and rendering a biased opinion. The court believes that during the 1997 trial of Johnny Barnes (the case for which Milian was rebuked in February) he crossed that line.
Barnes is what the courts call a career criminal. His lengthy rap sheet includes battery, burglary, and possession of cocaine. He's the kind of seasoned scofflaw who Milian sees in the courtroom week after week. Two years ago Barnes was accused of setting fire to an air-conditioning store that was in competition with his employer's business. Two eyewitnesses allegedly saw Barnes leave the store carrying a can of gasoline. He was found guilty of arson and sentenced to 30 years in jail. He was also found guilty of burglary for breaking into the building, which carried a concurrent ten-year sentence.
Barnes' three-day trial, however, was tossed out because of a comment Milian made about a defense witness. The witness, Kevin Kulik, had been retained briefly by Barnes as his attorney. At the trial Kulik testified that he had concerns about the lineup from which Barnes had been picked. He claimed that the other men did not look enough like Barnes for the witnesses to be objective. During his closing statement, Milian characterized Kulik's testimony as "the mercenary actions... of a hired gun."
The appeals court later ruled that the "hired gun" phrase had done irreparable damage and prevented the defendant from receiving a fair trial. Barring a change of heart by the appeals court, the Barnes case will go to trial again.
The costs of a new trial -- everything from paperwork to travel expenses for witnesses -- will be covered, of course, by taxpayers. Even more problematic is the fact that, as time passes, convictions become more difficult to obtain. Depending on how long it takes to reschedule a trial, witnesses can move away or die, and memories can fade. Criminals, as a result, have a better chance of beating the rap. And the guilty verdict in Barnes' first trial will not be admissible the next time around. "It's always to the defendant's advantage to get a new trial," Milian notes.
He fumes at the notion that one phrase could taint an entire trial. "It just boggles the mind that they would think three words in a three-day trial would eviscerate the fairness of the trial," he says. "What am I, a modern-day Rasputin?" (Judge Gary Farmer, who wrote the Barnes opinion for the appeals court, declined to comment because the case is still pending.)
Milian has never been accused of distorting, destroying, or hiding evidence. Nor has he been charged with withholding exculpatory information from the defense. None of his supposed infractions amounts to premeditated, calculated attempts to stack the odds in the state's favor.
"I'm the last person to defend a prosecutor," says Donald Jones, a law professor at the University of Miami, "and I think you should be courteous to everyone, but there are so many worse sins than this. I don't think that the courts can be Pollyannish in terms of the language lawyers use." Jones is much more troubled by prosecutors who subvert justice by tampering with evidence and violating defendants' rights, which he believes routinely happens. "There just seem to be so many issues that the courts need to look at, and I'm baffled over why they're picking this one," he says.
The four cases cited by the appeals court in its February opinion are culled from more than 300 Milian has prosecuted since joining the state attorney's office 11 years ago. Milian estimates that more than 80 percent of those trials have ended in convictions. His assertions are backed up by Mark Springer, chief of the career criminal unit, who says that Milian has worked 93 jury trials since joining the unit in October 1994 and has won 74 of those cases -- a conviction rate of exactly 80 percent. "He is one of the best prosecutors we have," Springer says. "These are the most serious and toughest cases over here."
Milian is evidently one of the toughest, and shrewdest, prosecutors. While many defense attorneys repudiate his behavior, few relish facing him in court. In the case of Landry v. State in 1991, Malla Landry was accused of trying to run down a police officer with her car. During the contentious trial, Milian implied in his closing argument that there was additional, damning evidence that the jury had not been permitted to see. The jury found the defendant guilty of aggravated assault on a police officer, but the case was overturned by the appeals court in 1993 due in part to Milian's statement.
Maury Halperin was the defense lawyer in the Landry case. For three years he worked in the career criminal unit of the public defender's office, and he squared off against Milian numerous times. "We probably saw each other every day," says Halperin, who entered private practice in March. On several occasions, he adds, Milian offered to take their legal battles outside. "Every once in a while, he would invite me out to the garage to fight with him," Halperin says, noting that he always politely declined.
But Milian wasn't the only one who let his emotions get the best of him during the Landry trial. While Milian referred to the defense attorneys as "maggots," Halperin implied that the prosecutor was a "scumbag." The appeals court noted in its opinion that "this kind of behavior on both sides is entirely unacceptable" and patronizingly told the lawyers to study up on the rules of professional conduct for attorneys.
Despite these confrontations Halperin says he has begrudging admiration for his long-time adversary. "I never looked at him as someone who was doing anything he shouldn't have been doing," Halperin says. "I respect Al. He's a tremendous lawyer, a tremendous talent."
Halperin notes that the appeals court has the luxury of poring over every word of a trial transcript in a dispassionate environment, while trial attorneys must deal with real-world situations. "I know what it's like to be in battle," he says. "I think it's a whole different thing when you're looking at a cold record, and you're trying to review somebody's performance."
The Florida Bar, which disciplines lawyers when they get out of line, has reached similar conclusions about Milian's conduct -- albeit with reservations. Myriad complaints about Milian have been filed with the bar over the years, four in the last twelve months alone. But Milian has never been formally disciplined. And unless a complaint is substantiated, records are expunged after one year, so it's impossible to know exactly how many complaints have been filed during Milian's tenure with the state attorney's office. For his conduct in the Landry case, the bar did refer him to ethics school, a one-day refresher course covering appropriate behavior for attorneys.
"It's like being charged with a crime and being acquitted," Milian says of the complaint process. "You're not exactly happy to be there."
Milian faced his biggest disciplinary challenge earlier this year when the Florida Bar was in the process of reviewing the appeals court's opinion and a complaint from defense attorney Lothar Genge at the same time. Genge alleged that Milian slanderously attacked him during a trial in October, at one point telling the jury that the defense attorney was "dishonest." He also complained about Genge's "whining."
"But for the fact that he said it in court, he would have been the defendant in a substantial defamation suit," Genge claims.
Milian replies: "That's a lawsuit that, based on the public record, he would have lost in about two seconds."
He may be right, because, once again, the panel of six lawyers and three civilians that reviewed the complaint for the bar found "no probable cause" for taking disciplinary action against Milian. And the panel did not even deem the referral from the appeals court -- which caused an arson conviction of a serial felony offender to be overturned -- worthy of comment.
Of course if Milian is guilty of serious misconduct, he can always be fired. But the state attorney's office shows no sign of letting him go. When the appeals court berated Milian in its February opinion, it was also, by association, taking a shot at Michael Satz, Broward County's state attorney. Satz declined to comment for this story, but Ralph Ray, chief assistant state attorney, says that Milian is in no danger of losing his job. In fact the state attorney's office has filed a motion for rehearing, asking the appellate court to reconsider its opinion. In its motion the state attorney's office points out factual errors in the court's opinion and claims that inaccurate conclusions were drawn from those errors.
Ray even suggests that the opinion could have a negative impact on the judicial system. "Our concern is that it's going to have a milquetoast effect on future prosecutors and that they'll go into court like a child of the lambs afraid to make their case," he explains. "Sometimes the cure is worse than the disease."
Alberto Milian is a child of Cuba. In 1965, when he was five years old, his family fled the repressive Castro regime. After a four-month stopover in Mexico City, the family of five, like so many other Cuban exiles, ended up in Miami. Alberto's father, Emilio Milian, worked first as a radio sports announcer. He eventually landed his own Spanish-language talk-radio show in 1971, Habla el Pueblo (The People Speak).
Five years later Emilio's legs were blown off by a car bomb. The mid-'70s was a period of turbulence in the Cuban-exile community, marked by a series of high-profile bombings. Although Emilio Milian was a staunchly anti-Castro voice in Miami, he had infuriated the more radical, terrorist-minded elements of the Cuban community by decrying the use of violence to accomplish political ends. Because his words were deemed dangerous, he was transformed into a free-speech martyr. But police were never able to trace the bombing to anyone in particular.
From his office at WWFE-AM (670) in Miami, where he continues to host Habla el Pueblo five evenings a week, Emilio Milian speaks of Alberto in clipped but adept English. Flashing the same intense, dark eyes of his son, Emilio notes that the failure of the authorities to bring anyone to trial for the bombing drives his son as a prosecutor. "He believed that in that case justice was not applied," Emilio says simply. "Alberto loves justice."
Alberto Milian says that he often thinks of his father's case when he is in the courtroom. "What happened to my father was a very disgraceful thing," he says, "a very disgraceful episode in our country's history."
Milian's knowledge of Cuba is broad, but he is not burdened by the memories and biases of his father's generation. He's undoubtedly American. He played football and wrestled at public high school in Miami, and he boxed some while growing up but without much success. "I was more of a punching bag than a puncher," he quips. Milian, who became an American citizen in 1973, may slip in and out of Spanish with ease, but he probably has more in common with the cops with whom he jokes at the courthouse than with residents of Havana. The issues that incite the callers on his father's radio show, such as the Orioles' recent baseball game with the Cuban national team and the U.S. trade embargo, only flicker inside him.
"I despise Castro," Milian says. "Castro has ravaged that island." But he says it with little of the passion that is evident in his eyes when he speaks of boxing, the Army, or the American justice system. When Milian decries Miami as "that little Banana Republic," he could be any yahoo Browardite venting on The Neil Rogers Show.
Before allowing a reporter to visit his home in Broward County, Milian demands that the reporter won't reveal where he lives. This paranoia can be partly attributed to the attack on his father, partly to the risks of dealing with violent criminals on a daily basis. But Milian won't admit to being paranoid. "If I was truly paranoid," he says, "I obviously would have gone into some other line of work."
His Spartanly furnished condominium is filled with books and case files. Sharing space on the bookshelves are G.I. Joe videos; Milian's eight-year-old son from a marriage that ended in divorce lives with him half of the time. Now a bachelor, Milian is dressed in jeans, a mustard-color T-shirt, and hiking boots. His normally clean-shaven face is sullied by a few days' growth.
Today is Mother's Day, but Milian has little reason to celebrate: For the better part of the past week, his mom has been in the intensive care unit of a Miami-Dade County hospital, with heart problems. "I got beeped '911' out of the courtroom," Milian says. "It's just one of those things that gives you the chills." Since then he's been shuttling between the hospital, his parents' house in Miami, and his condominium, serving as chauffeur for his father, who's unable to drive.
In Milian's living room is a faux human skull. He purchased it to use as a prop in an attempted-murder trial. The defendant was accused of bashing someone's skull with a baseball bat. But he pleaded guilty before the case could go to trial. The skull is flanked by two military statues from Milian's service in the Army reserves, of which he's been a member for 18 years. One of the statues is inscribed with the phrase, "Go to Hell and Regroup," a popular refrain among paratroopers. In the closet hangs his Army uniform.
Milian joined the Army reserves, he says, because he wanted to give something back to his adopted country. Also, he decided that Cubans did not do enough to fight for their own homeland in the '50s when Castro usurped power. "I came to the conclusion that we in Cuba abdicated the responsibility to fight for our freedom," he says.
Milian saw six months of active duty in the 1989 U.S. invasion of Panama, which ousted strongman Manuel Noriega. In the Gulf War, enemy SCUD missiles rained down on Riyadh while Milian was posted there. "I love the Army," he says. "The Army has been my alma mater." He says he would be happy to serve in Kosovo if needed, despite his contempt for President Clinton.
Milian's image of himself as a Renaissance man -- an intellectual barroom brawler -- can be gleaned from his reference points, both literary and otherwise. He sprinkles his speech with allusions to Hemingway, Mailer, and Mencken -- the heavyweights of literary machismo. A lit-crit heavyweight, Harold Bloom, "really likes this book," Milian says, referring to a Gertrude Stein novel on one of his bookshelves. He praises the "rawness" of Rodin's sculptures, and he's a proud member of the NRA. "I'm pro-gun to the end," he says.
Milian is not subtle. He styles himself as a man of the people, a populist, a patriot -- almost to the point of parody. He often looks and sounds like a politician in training (though he disavows any interest in elected office). There is no gray area; a person is a victim or a victimizer, good or evil, friend or foe. So it's only fitting that in the courtroom Milian is a relentless prosecutor who seeks maximum sentences, pursues cases as if his own kin are the victims, and almost never agrees to a plea bargain. "I am a prosecutor's prosecutor," he says. "I am probably the harshest prosecutor you'll run into in a long time."
In the 1994 case of Cochran v. State, in which the defendant was accused of killing his brother-in-law, Milian prosecuted the case against the objections of the victim's own parents. They believed that their son-in-law acted in self-defense, but Milian pushed for a second-degree-murder conviction, which he got. The case was later overturned by the appeals court for -- Surprise! -- comments made by Milian in his closing argument.
Milian's bare-knuckle prosecution style is a natural fit for the career-criminal unit. Under state sentencing rules that edge closer to a throw-away-the-key approach with each legislative session, habitual offenders are being saddled with longer sentences. Any violent criminal with two prior felony convictions, one of which occurred in the last five years, faces penalties that are double those for less-seasoned offenders who commit similar crimes.
Brandon Hall, the man who stood trial for armed robbery and other charges back in April, is feeling the blunt force of tough-on-crime legislation. After four hours of deliberation by the seven-person jury, he was found guilty on all charges: two counts of armed robbery, resisting arrest, and illegal possession of a short-barreled shotgun. He now faces the possibility of life in prison when he is sentenced by Judge Cohn on May 21. That day will be a big one for Hall: It's also his 19th birthday.
"Maybe he should sit inside [prison] for a while and think about things," Chris Livingston, Hall's lawyer, said after the verdict was delivered. "But he should not get a life sentence."
Milian sees few other options. "What do you do with a guy like that? People say, 'You're heartless, Al.' And I say, 'Yeah, I know.' But what are you gonna do with him? This is sometimes a depressing job because you see so much of humanity being squandered."
Regardless of the verdict, the case is far from over. The machinations of an appeal have already been set in motion. Although Livingston did not object to Milian's characterization of his client's alibi witness as "preposterous" during the trial, he now argues that the comment is grounds for a new trial. Livingston also claims that the trial was tainted by the admission of two guns into evidence that were not used in the crime, among other things. He has filed a motion with Judge Cohn for a new trial. If the judge declines, Hall will have 30 days to file an appeal.
Milian is nonplused by the possibility of an appeal, of another potential scuffle with the 4th District Court of Appeals. "The last time I looked, preposterous was in the English language," he says. "And I thought it was appropriate."
Milian has a few more blemishes on his courtroom record than Rocky Marciano did in the ring. The boxer, who spent his final years living in Fort Lauderdale, is the only heavyweight champ to retire undefeated. In one of the pictures on Milian's office wall, Marciano has just knocked out Jersey Joe Walcott in the 13th round after being behind the entire fight. Like his pugilist hero, Milian will keep punching until the final bell.
Contact Paul Demko at his e-mail address:
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