Florida Criminal Defense and DUI Defense Blog

22Feb, 21

Kessler Law Firm PodcastWe’ve been handling some fairly serious subjects lately, so my good friend Cliff Barnes and I thought we’d talk about a couple of our cases that were the most fun.

CB: I’ve had quite a few funny ones but today we’ll talk about the great Oreo Cookie Case.

CB: I had the pleasure many years ago, probably twenty years ago, of representing a local pastor, who was probably in his early eighties, and the gentleman was charged with solicitation of prostitution. Of course, the State gave me a police report and, I think, a recording.

CB: The allegations were that he had driven up, he was a black gentleman, and that he had driven up to a white undercover police detective, who was posing as a prostitute. The allegations were that he had told her that he wanted an Oreo cookie. And she said, “What is an Oreo cookie?” And he said, “Well, I want you and your friend.” She was standing with a black woman, so I guess the white woman would be in the middle, and the two black folks would be the wafers of the cookie and she would be the cream in the middle.

CB: The white officer said, “Okay, we can do that. That will be fifty dollars.”

CB: He said, “Okay, well, let me go get my money.” And as he left the scene and, as you know, the typical M.O. is the police arrest them the minute they leave. Well, when they searched him, of course he professed his innocence and denied doing anything or saying anything that would be susceptible, be interpreted as solicitation, despite the recording (he didn’t know it was being recorded).

CB: He told them that he was just passing the time of day with the lady and that he drove off, which is true. They accused him of agreeing to fifty dollars for the sex act, the great Oreo Cookie act. It turns out when they arrested him he had a hundred dollars in his wallet.

CB: I thought that they would drop the case, but then again, we’re dealing with the prosecutor of the 19th Circuit, so they decided they were going to make a stand for decency in this town, and they prosecuted this pastor.

CB: And like I said, he was an elderly gentleman and, as I haven’t found out yet but in ten years assumer I might, there may be problems with actually concluding a sex act for money, or just for love.

CB: My defense was that he was just talking dirty, that he just got a thrill out of talking dirty, because, clearly, he said what he said – he wanted that Oreo cookie and he wanted it badly. My feeling, even today, is he wasn’t going to conclude the act, he just wanted to talk about it and once he got his thrill, he drove off.

CB: Of course, the prosecutor said the act was completed when he said, “Okay, let me get my money.” Even though he already had the money in his pocket, more than that. So if he’d wanted the act, he had the money to pay for it.

CB: So, my defense, and of course I told him beforehand, was that that was the defense. You were just talking dirty to ‘em and you got your thrill and you drove on, because you had the money in your pocket if you wanted to pay for the Oreo Cookie.

CB: I believe it was Judge Tighe. He liked a fun trial. He liked to enjoy a trial and, God rest his soul, I bet he never had a funnier one than this Oreo Cookie, because everybody was having fun except the prosecutor and the prosecution witnesses. Everyone else was giggling and laughing. Judge Tighe would lean way back in his chair, where no one could see him, to laugh, because he couldn’t laugh out loud, so he’d lean way back where the jurors couldn’t see him.

CB: Back then, they had the docket call and the defendants would be seated in the audience with the rest of the jurors. I would always seat them right in the middle, so the jurors would go, “Oh, it’s one of us on trial today.” It made it seem like it was them against the court.

CB: He was even smarter than me. He walked just fine all the times he came into my office, but he showed up in a wheelchair that morning. The bailiffs were so sweet. They pushed him here and there, and helped him get his feet in and get his feet out. He hobbled over to the defense table and they helped him get in his chair, while the whole panel of jurors is watching.

CB: Once you’ve seen that, I mean, come on, no one’s going to convict this man after watching him come out of the audience and the bailiffs are helping him and treating him like the older gentleman that he was. He walked just fine, but that was a stroke of genius on his part.

CB: So, the prosecution put on their allegation, put on their witness. They played the tape. For my cross-examination of the white part of the Oreo Cookie, because she was the lead, was I asked her if she’d ever met him before, if she knew him. Then I asked her if she knew whether or not he was even capable of consummating the Oreo Cookie that he asked for, and everybody starts laughing.

CB: Obviously, we were going to win, anyway, but I just thought we’re all going to have a good time here today, so I put his wife on. His wife says, “Lord, that man ain’t been able to do anything for me for twenty-some years,”

CB: So, then I put him on, and I thought we’re going to cap this off and he’s going to explain that he was just talking dirty. Then he pulled a fast one on his lawyer, because he didn’t quite go with the defense. He came up with his own defense and he said, “I’m a man of the cloth. I have never hired a prostitute. I never would. That’s a sin. It’s evil.”

CB: This is happening in front of a jury that he’s undermining my defense. So I said, “Can you explain to the jury what you were talking about out there?”

CB: He goes, “I was trying to lead those women to Jesus. I was trying to shame those women and lead ‘em to Jesus. That’s what I was doing out there that night.”

CB: The jury was out about ten minutes. That was about the most fun. It was just ridiculous, like so many cases brought by our local prosecutors, but it was a good time, it was funny. Everybody had a good time.

MK: Well, I tell you what, I thought about you when I tried what was probably my funniest case. I tried a fried chicken case in Vero. I had a client that was accused of shoplifting fried chicken tenders from the Wal-Mart, and eating them as he walked through the store.

MK: At the Vero Beach Wal-Mart, the food area was back in the far left corner. They tell us always visit the scene of the crime, right? I had gone back out there to get the lay out of it. He had to walk back from that back counter through almost the whole store to leave the store. He wasn’t on video anywhere stealing or eating anything.

MK: The store security officer came in and had the nerve to come in and testify that “at Wal-Mart, we’re more concerned about employee theft than customer theft, sour cameras are all trained on our cash registers”.

MK: My client had a great story. He said, “I wasn’t eating chicken at all. In fact, I don’t eat meat.”

MK: He said, “I went back there and the potato wedges were right next to the chicken tenders and they had expired. The girl was about to throw them out, and I asked her if I could have ‘em and she said, ‘Yeah, I can’t sell ‘em I’m gonna throw ‘em out’. And she gave them to him.

MK: He told that to the store detective, who didn’t believe him. He told that to the police when they got there; they didn’t believe him. They arrested this guy. He bonded out, drove himself to the Vero Beach hospital, walked into the emergency room and demanded that they pump his stomach so that he could prove that there was no meat in his stomach.

MK: The people in the ER didn’t know what to do. Next thing you know, the Risk Management guy comes out and says, “Look, this is not medically necessary. We can’t do this.”

MK: A few weeks later, we’re up for trial, because back then, if you were convicted of shoplifting in Vero, both judges would put you in jail. So, we went to trial.

MK: His defense was the truth. He didn’t steal anything. What he was eating was what they gave him because they were going to throw it out.

MK: I decided that it needed a lighter touch, so at lunchtime during the trial, I went back to the Wal-Mart and I went back to the back counter and I bought fried chicken. I brought it back to the courthouse and I had it marked as an exhibit and put on the clerk’s table, right next to the jury. I can still smell it. The whole courtroom smelled of fried chicken.

MK: We wiped up the floor with their store detective, and I even called as a witness the Risk Management to say, “Yes, all this is true. He wanted his stomach pumped.”

MK: I think this jury elected their foreperson without leaving the courtroom, because we were out of the building in about ten minutes.

Cliff Barnes is a valuable member of the Kessler Law Firm, and you can find out more about him on our website.

You can also call us at 772-466-4900 . I look forward to talking with you.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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