CLEARWATER – Prosecutors wield a lot of power in the criminal justice system. They decide whether police have garnered enough evidence for a case to be presented to a jury, an advantage that more often than not leads to a conviction.
Defense attorneys do their best, but they know their chances of getting a not-guilty verdict at trial are often slim because of the setup. Acquittals are uncommon.
Enter Kelly McCabe.
The up-and-coming defense attorney — and single mother of two adopted boys — has had three acquittals this year, one right after the other. And she’s only been on the local criminal defense scene for 17 months.
Her technique is simple, and one commonly used by defense attorneys: She punches holes in the cases prosecutors with the Pinellas-Pasco State Attorney’s Office are bringing to trial.
“I pick apart very minute details and blow them up, but they are details to me you should have followed up on,” McCabe, 35, said in her new Pinellas Park office.
That strategy worked well in the case of James Alex Wilborn, who was accused of stabbing a woman he didn’t know outside a downtown St. Petersburg night club,
The victim and a friend who was with her said the assailant had large diamond earrings, but McCabe pointed out Wilborn didn’t have pierced ears. “Their fix in the middle of the trial was sending a detective to go to the mall for magnetic earrings,” she said.
McCabe also staged a kind of re-enactment for the jury. She made sure she wore the same kind of high-heeled shoes to court the victim wore and then showed that Wilborn, who is 5-foot-6, could not have reached over the victim and stabbed her in the back, as prosecutors claimed.
Wilborn was acquitted.
McCabe, who grew up and attended college in Ohio, graduated from Stetson University College of Law in Gulfport, where she received her law degree in 2003. From there she worked as a prosecutor for three years at the Polk County State Attorney’s Office.
After a stint with a small Manatee County law firm, whose specialities included personal injury law, McCabe decided to return to criminal law and joined forces with Wendy Doyle, a family law attorney, in a small St. Petersburg office.
One of her first Pinellas clients was a man charged with drug possession at a hotel, and from there her practice has blossomed.
Because of her home situation, McCabe often waits for her adopted sons to go to sleep before she leaves them with a family member and goes to the Pinellas County Jail to talk with clients or prospective clients. She makes sure inmates can get a hold of one of her business cards.
Many of her clients are from South St. Petersburg’s predominantly black and poor neighbors. If they can’t afford her rates, she’ll put them on a payment plan.
If her clients want to go to trial, she does all she can to fight for them. She also often persuades them to take the stand in their own defenses, a risky maneuver since many of her newfound clients have extensive criminal records.
“Just because you have committed a felony doesn’t mean you can’t tell the truth,” she said.
McCabe put Christopher Roberson on the stand before a jury acquitted him in a home invasion and robbery in August, the same month Wilborn was acquitted.
St. Petersburg police tied Roberson to the crime through, among other things, cell phone records, but McCabe said Roberson had given his cell phone to his cousin, and one of the calls was traced to a cell phone tower near the cousin’s home.
Maj. Mike Kovacsev of the St. Petersburg Police Department acknowledged McCabe’s accomplishments in court — sort of.
“She did do a really good job with the Roberson case,” he said.
But Kovacsev was less impressed with her work on the Wilborn case. Wilborn was actually awaiting trial in two assaults outside downtown St. Petersburg clubs, and McCabe took the weaker one, the one involving the stabbing, to trial.
Shortly afterward, Wilborn pleaded guilty to another attack, in which he smashed a liter glass wine carafe on a woman’s head. He was sentenced to 15 years in prison in that case.
In the other case where McCabe won an acquittal, a man named Peter Oliver was charged with robbery and accused of stealing $3,000 from a woman’s bra. McCabe said she noted that the woman kept changing her story, The woman knew Oliver because he had helped her cook some crack-cocaine. She had given him $2,000, so he could make some money for her, and when it wasn’t returned, she called the police.
But the woman texted and called Oliver before and after the alleged robbery — something victims don’t typically do under those circumstances.