Celebrated Miami Attorney Gerald Kogan Dies at 87

Gerald Kogan, a renowned Miami attorney-judge who defended one of the McDuffie cops in the momentous 1980 trial, died Thursday. He was 87.

Early in his career, he was chief of major crimes as a prosecutor for Miami-Dade State Attorney Richard Gerstein. He went on to become a Miami-Dade circuit court judge and eventually rose to chief justice of the Florida Supreme Court. In his later years, he was celebrated for his work against the death penalty.

In the McDuffie trial, Kogan defended Ubaldo “Eddie” Del Toro, a Miami-Dade cop who was one of six accused of killing Black motorcyclist Arthur McDuffie or covering up how he died. There was virtually no evidence against Del Toro, and Kogan persuaded the judge to give a directed verdict of acquittal before the case reached the jury.

As Kogan continually hammered in the Tampa courtroom, Del Toro had a flat tire chasing McDuffie’s Kawasaki 900 and hadn’t even arrived at the McDuffie scene until the incident was over.

Kogan, generally an admirer of the press, was highly critical of the media’s coverage of the McDuffie trial and was always angry when later journalists dismissed the acquittals of all defendants as the work of an “all-white jury,” as if only racists could have come up with such a verdict. The acquittals of all defendants had huge consequences, leading to riots in May 1980 that killed 18 and did $100 million in property damage.

“Quite frankly, I believe the news media was really to blame for getting the community inflamed,” Kogan told me when I interviewed him for my book, Verdict on Trial: The Inside Story of The Cop Case That Ignited Miami’s Deadliest Riot. https://tinyurl.com/7e4mefbw

Actually, the issue of the media’s role in the McDuffie case is much debated — and complex. I’ve written maybe 20,000 words just on this sub-topic.

But what is clear is Kogan’s performance in the McDuffie trial. George Yoss, a prosecutor in the case, praised Kogan’s work at that trial for its clarity and simplicity. Time after time, when it was Kogan’s turn to cross-examine, he stood solemnly and looked at the jury: “I just want to refresh your recollection. My name is Gerry Kogan, and I represent Ubaldo Del Toro, and I have no questions.”

The only state witness to say much about Del Toro was Marshall Frank, the lead homicide investigator. His statements about Del Toro were vague and noncommittal, and he admitted to Kogan on cross-examination that he thought so little of his interview with the cop, he hadn’t written down any notes of what Del Toro had to say until eight days afterward. (Frank confessed to me years later that he didn’t think Del Toro should ever have been charged.)

The state had accused Del Toro with covering up the actions of other cops. After the state rested its case, Kogan argued that there was no evidence linking Del Toro to any crime. Judge Lenore Nesbitt agreed. When the defense started its part of the case, Kogan and Del Toro were missing from the defense table.

Jurors were given no explanation, but at least two guessed that Del Toro had walked free. One of them, Joseph Tetreault, told me he wondered, “Why the hell was he put on trial in the first place?” He viewed Del Toro’s acquittal as a sign that the state’s case in general was full of holes. Another juror, David Draper, wrote a letter saying that Del Toro was “merely the most blatant example of the carelessness of the state attorney’s office in preparing this case.”

The autopsy of McDuffie made it clear that the motorcyclist had been murdered: His head must have been resting against the pavement or a wall when brutal blows crushed his skull. His hands showed no signs of putting up a struggle.

But in the courtroom, the case was a mess, as even prosecutor Yoss acknowledged. The state’s witnesses contradicted each other in major ways. The first said that McDuffie started by fighting like hell. The second said McDuffie exclaimed, “I give up!” and never fought. The third confessed he too had hit McDuffie and demonstrated how to break his legs. The first three said they were convinced Alex Marrero struck the worst blows. The fourth state witness said he was certain Marrero didn’t hit McDuffie and another officer struck the blows.

Because of these conflicts, Kogan told me that he was convinced no jury could have convicted the cops — whether the jurors were white, black or brown.

At the end of my interview with him in 2013, we slipped into his talking about the death penalty. “In 58 years, I have participated in one form or another in the final disposition of about 1200 capital cases. And I don’t know anybody else that’s had that much experience. Because I did it as a prosecutor, as a defense attorney, as a trial judge and as a supreme court justice.”

He testified at least three times before Congressional committees, at least twice to state legislatures and at many universities.
His conclusion: “Capital punishment in a civilized society has no place at all. There are a lot of reasons.”

Somewhere, I’ve got that interview on video. When I find it, I’ll upload it online. He was a hell of a guy.