Three Ring Trial
Phyllis steels herself for the long-awaited trial. Law enforcement reaches out to a potential star witness. And prosecutors hope Phyllis’ testimony sways the jury enough to overlook their lack of physical evidence, before she faces a rapid-fire cross examination.
Episode Image ©Marcy Nighswander – USA TODAY NETWORK
Prosecutors Bob Bulford and Fred Zuch prepped for what they knew would be a sensational trial. Cameras would be allowed in the courtroom. Reporters would chase them down. Not just them – but Phyllis.
Did you talk with Phyllis often?
I mean, I talked to her a couple of times. And then we spent a lot of time prepping for when she was going to testify.
What was that like?
She was very matter of fact. She did not hesitate to tell me anything. To me, she had a lot of courage. She was not afraid of going up there.
Still, it was one thing for Phyllis to share her story with sympathetic reporters; it was another to sit on the stand and be cross-examined by a defense attorney determined to discredit your testimony.
As courageous as Phyllis seemed to be, she understood what could happen on cross-examination.
She told me once that if she had “just been raped,” she may not have gone to police.
Why do you think she said that to us?
I don't know. I have heard that from other victims. "I was raped, and didn't go to the police. I didn't want to put up with all that nonsense, all that goes on, and be humiliated again." Basically, when someone's raped and they have to go to get questioned by the police and go to court, it's almost like they're getting raped again. They hear they have to go to court, they have to re-testify, and then they get cross-examined, and depending on what jerk is cross-examining that person, some people…we say have a little bit of class when they do it and others just-
That meant potential trouble. Even if their survivor was Phyllis Cottle.
She's not the only one that I've had over the years that was pretty good at what happened and describing it, and others, I don't know whether they psychologically block it out or don't want to talk about it. There are some victims that you have to really, really sort of cajole it out of them, and just be very easy with them, and hope that they get to the point where they actually tell the story. I've had some, where when you're interviewing them, or you're getting them ready for trial, they're fine, they're talking. But when they get on the stand, then it's like oh, I've got to figure out some way to get her going.
Prosecutors also had to deal with Phyllis’ inability to point to Herring and say, “that’s him.” They desperately wanted an eyewitness who could definitively identify Herring.
They had witnesses who would testify a man who resembled Herring was agitated and carried a gym bag on March 20th. But they could not swear Herring was the guy with 100 percent certainty.
Prosecutors needed dynamite. Explosive testimony.
Enter, or should I say re-enter, Chili Mo. The 1286 regular who gave detectives the best description of the suspect, and had talked with the suspect one-on-one that day in the bar.
Detectives had shown Chili Mo a photo array a few weeks back, but they’d used an old picture of Herring. That picture did not match what Sammie Herring looked like today. Prosecutors figured if they showed Chili Mo a more recent picture of Herring, he would point to it and say, “that’s the guy.”
We wanted to talk to him. We could not find him. And finally, I don't know, a couple of weeks before the trial, Fred Zuch, me, Chris Contos, maybe Gary Moss, we went to that bar, late in the evening, one night. He was there. We sat down with him. I think I bought him a drink. I don't know. We sat down and we talked to him.
Chili Mo looked at a few more photo arrays, but no dynamite.
He said he wasn't in there. He said that. He said, "He wasn't in there." He also said, "But I'll know him when I see him." This is what he told us in the bar. He said, "I'll know him when I see him." We walked out and I said, "Fred, we've got to tell Saundra Robinson about that. This is Brady.” He goes, Fred "Yeah, we've got to tell her." Because this is Brady material…”
Translation: Brady material or evidence that could reduce a defendant’s potential sentence or – exonerate him. If prosecutors possess such material, they are required to turn it over to defense attorneys.
The prosecution’s job is to seek justice, not to “win” by getting a conviction.
So Bulford called the defense attorney who represented Samuel Herring.
So, I called Saundra Robinson. I said, "Sandra, you need to talk to this guy. Here is his phone number, here is his address. We talked to him last night and this is what he said.” And she obviously talked to him and arranged to have him come in.
Herring’s court-appointed public defender, Saundra Robinson, met with Chili Mo. And when that meeting was over, she decided to put Chili Mo on the witness list – for the defense.
Chili Mo would be her dynamite.
I’m Carol Costello. This is Blind Rage, Episode 10: Three Ring Trial.
Phyllis had not slept for days. Soon she would testify in open court. She was determined, in her words, “not to look like a crazy lady.”
She used that photographic memory of hers to review every moment of her attack day after day and night after night. A victim’s assistance counselor helped her through it. Jeanette West told the Akron Beacon Journal, “Phyllis relived everything through imagery. She wanted to make sure she remembered it all.”
Here’s Dianne, Phyllis’ daughter.
So, the trial…
She was almost glad that it was there. She goes, "Let's go." I mean, seriously, she actually was ready to go. She's like, "Let's not string this along. Let's get this guy found guilty, get him in prison."
I told my mom this. I said, "I know you need us to be there. But I'm going to tell you right now, in all honesty, you don't want me to be there." And she says, "Why?" And I said, "Because I will kill him as sure as he's sitting at the table, and I will go to prison."
I think everyone would understand that sentiment.
And she said, kinda laughed and she said, "Well then, I think it's best that you stay home."
Yeah, that sounds like her.
Samuel Herring prepped too. He was represented by the aforementioned Saundra Robinson, a Black attorney who had never tried a criminal case before, let alone one that would become one of the most sensational trials in Northeast Ohio’s history.
Here’s Mark Williamson:
Give her credit for taking that one. Oh my god. For a woman to take that case. But anyway, it was the most one-sided case I've ever seen. Before it was even adjudicated, I mean, everybody just took her side on this…
…as in, Phyllis’ side. Media accounts of the crimes against Phyllis included pictures of the alleged attacker, Samuel Herring. By the time the case went to court, the public recognized Herring – and knew about his criminal past.
That presented Robinson with a challenge. Actually, Robinson dealt with a lot of challenges. Many in the community were angry at her. A letter to the editor in the Akron Beacon Journal read, in part: “I don’t see how any lawyer with a clear mind could represent anybody like Samuel Herring in court.”
And I wondered as a lawyer, what that felt like.
Well, that's always an interesting or a good discussion. The general public doesn't really have a good understanding of, you take an oath to represent those that need representation.
That’s Judge Irma Brown.
So emotionally, as an attorney, how does that affect you?
I think it makes you fight harder. Fight harder, and it takes you back to those core values about the presumption of innocence.
Robinson decided to fight for her client with an unusual strategy: Samuel Herring would take the stand – and testify in open court.
You were a judge for a long time. How many times do you remember the defendant actually taking the stand in his or her own defense?
Rarely, rarely. And we have an ethical obligation to make them aware of their rights to speak in their own defense to testify, but then also to make them aware of how it might not be in their best interest to do so because once they get up there and one question, one answer opens it up to everything.
Herring’s appearance on the stand likely would “open up everything.” As in, the jury would hear all about Herring’s criminal past. And prosecutors could question him about it.
Robinson held firm. Her client, Samuel Herring would take the stand and face his alleged victim, Phyllis Cottle.
Phyllis arrived at the courthouse – ready for battle.
She wore a flowered blouse. Her hair looked 80’s fantastic. So did her sunglasses. They were big, round and filled half her face.
You would not know she was blind. Her eyes looked un-damaged behind her light-lensed sunglasses.
On the outside, she appeared – calm.
On the inside – no.
Once she stepped foot in that courtroom…
She put it to me more like she walked in and felt almost like a cold, evil, not really ghostly, but you know how people talk about feeling like something from another realm? She said that's almost how she felt. It was just like a weight was sitting on her shoulders knowing that he was right there. And she could just feel the bad karma, just the bad omen.
Prosecutors decided to bet on Phyllis – their living homicide victim. She would be their first witness.
Fred Zuch, who prosecuted the case alongside Bob Bulford, would stick with the plan – they would treat this case like a murder trial. They would depend on charts, maps, timelines.
Yeah, I mean you just do it like a homicide. I mean, cause you obviously, I mean that's just, that's your approach.
But, you also actually have a more of a plus than a homicide because you have her can come in and testify because the other, when you have a homicide, it's one of the things that a prosecutor tries to do in the defense lawyer tries to prevent is kind of humanizing the victim.
With Phyllis, there she is, blind. I mean, how much more impact can you have? I mean there's just really, and I'm not, not in the, in the clinical sense, it's somewhat mercenary to talk about it like that.
Prosecutors hoped Phyllis’ testimony blew jurors away, to the point they might overlook what evidence the prosecution did not have: Chili Mo, the knife, and their somewhat questionable physical evidence.
Fibers and some other substances were recovered from the alleged rape house, but they were far from a homerun. The most important detail about the house was that it was owned by the Herring family.
Phyllis placed her hand on the Bible.
Voice of the Court:
Do you solemnly swear that you will tell the truth, the whole truth, and nothing but the truth, so help you God?"
I was in the courtroom that day, in the back, so I could run to a phone to file live radio reports every half-hour.
The judge asked Phyllis if TV cameras could record her testimony.
I held my breath.
Phyllis said, yes.
I turned on my tape recorder and pointed the mic toward the witness stand.
A sort of hushed murmur filled the court – and then, silence.
She said it did take her a couple of minutes to collect her thoughts, take a deep breath, and put him out of her mind. Because she said that was the only way that she would probably be able to keep herself composed enough to answer questions because she didn't want to come across as some crazy lady. She goes, "Because I needed the jury to see a strong woman who was ready to give details. And who was ready to put this man behind bars." She goes, "I couldn't come off sounding flaky."
Phyllis’ voice was soft at first – then grew stronger. And surer.
She vividly described what her attacker wore – those gloves with the zippers on them, like the kind of gloves boxers wore.
She described the hat, jacket, pants – she even described what her attacker wore under his clothes that day.
Here’s prosecuting attorney, Fred Zuch:
The string drawstring on the pants. That was a big deal
A big deal because Herring wore a similar garment – with “a drawstring and an open fly” – under his pants when he was arrested.
Phyllis described her attacker’s gym bag, the house – everything.
And then – she vividly described her rape.
She shared graphic – and I mean graphic – details of how she was raped. She used plain language and sometimes sexual slang so that everyone in that courtroom and everyone who watched on TV understood exactly how she was violated.
I remember her testimony. Obviously I did the direct. I mean, I did it. I just remember it being really succinct and clear, and there was no doubt what happened to her. It's also funny, because reading the transcript it seems so dry. It was a lot more emotional. When I'm reading the transcript, I'm thinking like, Bob, you keep getting in her way. Stop that. Because I would interject something and I'm reading the transcript and going, why did you do that? You're just getting in her way.
Now came the harder part – the cross examination.
Sandra Robinson started with the one thing Phyllis could not do: point at Herring and say, “that’s him.”
Even before Phyllis was blinded, she never got a good look at her attacker. He kept her head covered or ordered her not to look at him. At most - Phyllis glimpsed the man who brutalized her.
As attorney Robinson told prospective jurors:
Voice of the Court:
“Do you agree it is very difficult to identify a stranger you’ve only seen for a few minutes?”
Robinson’s questions came rapid-fire:
“I know you said he was Black. Did you give any indication of what color Black? Do you know Eddie Murphy on Saturday Night Live? Was he like that? Do you ever watch Good Times? JJ on Good Times? Describe the pants he had on. What kind of fabric? Did the pants and jacket match? What kind of shoes did he have on? Did he sound educated? Did he use proper grammar? Can you give us an example?
Robinson doubled down on whether or not Phyllis’ attacker had a mustache because some witnesses remembered facial hair and others did not. Herring sported a full mustache in court.
Robinson also tripled-down on the attacker’s under-garments. The drawstring pants with the “open fly” – the kind of under-garment Herring wore when he was arrested.
During the trial, his attorney, she was trying her damndest. She said, "Well, was it sweatpants? They don't have flys. They might have drawstrings, but they don't have flys." I said, "I don't know what these were. All I know is that they had an open fly and a drawstring!" She would ask me a question. I'd say, "Well, no but-" and I'd try to go on and she'd say, "Just a simple yes or no." And I'd say, "Stop." And sometimes she'd just throw her hands up. She'd say, "Okay, I'm done."
Robinson tried again and again to get Phyllis to contradict her own testimony. And failed.
Didn't she correct the defense attorney at times?
I think she did. I think she did. Yeah, I think she did.
Phyllis’ testimony was corroborated by evidence gathered by detectives Contos and Moss, and bolstered by the 1286 Bar’s manager and bartender.
As for physical evidence presented by the prosecution? Let’s just say it would likely not stand up in court today.
Many experts today would say “junk science” was used to prove fibers and bodily fluids in the case against Herring. That’s just how it was back in the 80’s. Even back then, prosecutors Bulford and Zuch knew the physical evidence would not get them a conviction.
This was a circumstantial case. Prosecutors would produce other kinds of evidence and consistent witness testimony that when pieced together pointed right at Samuel Herring.
Now though, it was the defense’s turn, it was Sandra Robinson’s turn.
She would present her evidence to blow holes in the prosecution’s case.
Her star witness? Chili Mo.
Next week, Episode 11: Happy Birthday.
It's like the kind of stuff that you'd see on Matlock or on Law & Order. And as a prosecutor, I would always tell the younger prosecutors, "That kind of stuff just doesn't happen.” But it does, it does happen every once in a while.