Lawyer Allegedly Offers $1 Million To Anyone Who Disproves Client’s Alibi . . . Law Student Disproves Theory But Florida Court Rules Lawyer Does Not Have To Pay Up

220px-United_Airlines_-_N14219_-_Flickr_-_skinnylawyer_(1)200px-Nelson_SerranoThere is an interesting ruling in Florida where U.S. District Judge Charlene Edwards Honeywell has ruled that a Florida lawyer, James Cheney Mason, does not have to pay on a $1 million challenge that he made in a television interview. Mason offered the money to anyone who disproved his client’s alibi in a murder case. Then South Texas College Law Student San Dustin Kolodziej took him at his word and said that he disproved the defense theory for Nelson Serrano (left). Mason then refused to pay up and now Honeywell is allowing him to keep the money. The case involves a unilateral contract sometimes called a “prove me wrong” case where someone offer payment to anyone who can prove the offeror wrong regarding a particular claim.

In the opinion, Honeywell describes the background:

Mason, whose law
firm is J. Cheney Mason, P.A., was one of the attorneys who represented the criminal defendant, Nelson Serrano (“Mr. Serrano”), in that trial. The trial attracted heavy media interest and, as a consequence, during the trial, NBC News conducted an interview with Mason regarding the case. During that interview, Mason talked about certain aspects of the prosecution’s theory that seemed highly implausible to him.

On the day of the murders, Mr. Serrano could be seen on a security camera at a La Quinta hotel in Atlanta, Georgia several hours before and after the murders had taken place. At his trial, Mr. Serrano alleged that he could not have committed the murders in Florida between the times that he was seen on the La Quinta hotel security camera in Atlanta. Id. ¶ 9D. The prosecution’s theory of the case was that: 1) on the morning of December 3, 1997, Mr. Serrano slipped out of the Atlanta hotel after having been recorded on the security camera there; 2) he flew by airplane under an assumed name (“Juan Agacio”) from Atlanta to Orlando; 3) he drove from the Orlando International Airport (“Orlando Airport”) to Bartow where he committed the murders; 4) he subsequently drove from Bartow to the airport in Tampa, Florida; 5) he flew from Tampa back to Atlanta on Delta flight number 1272 under another assumed name (“John White”) in a coach seat in Row 30 or 32; and 6) from the Atlanta Hartsfield International Airport (“Atlanta Hartsfield Airport”) where his plane landed, returned to his La Quinta hotel that evening where he once again could be seen on the hotel video camera recording.

The purported unilateral contract was based on Mason’s comments during the NBC interview regarding the last part of the prosecution’s theory concerning Mr. Serrano’s purported travel from the Atlanta Airport back to his La Quinta hotel. The prosecution’s theory regarding this last leg of the Serrano trip was that Mr. Serrano was able to travel from the time that his Delta plane landed at the Atlanta Airport (referred to by Defendants as “wheels down”) to his La Quinta hotel lobby in only 28 minutes. Mason commented during his interview that it was “not possible” for someone to accomplish this trip in the allotted 28 minutes. See Unedited Mason Interview. Just prior to Mason’s comments regarding this last leg of the trip, Mason talked about how he believed it was “highly improbable” for Mr. Serrano to have traveled from the Orlando Airport to the crime scene in Bartow and commit all of the murders within one hour and thirty minutes as the prosecution theorized. Id. Mason, in general, expressed his disbelief that anyone could have committed these murders between the two times Serrano was seen on the La Quinta hotel video camera. Id. It was against this backdrop that Mason commented on the last leg of the Serrano trip, as follows:

CHENEY MASON, ESQ.: . . . And, of course, just as importantly is– is the business of getting back to Atlanta, and getting from– landing in Atlanta and getting to the– to [the] hotel in 28
minutes.

DENNIS MURPHY: Airport hotel.

CHENEY MASON, ESQ.: Well, no, it’s not at the airport. It’s five miles away. You– how many times [have]
you gone through the airport in Atlanta?

DENNIS MURPHY: More than I’d like to think.

CHENEY MASON, ESQ: I mean you know you’re going to die there. You’re going to be born again and die
at the Atlanta Airport. You have to go through Atlanta to go anywhere, right?

DENNIS MURPHY: What’s the old joke about going to Heaven.

CHENEY MASON, ESQ: Yeah. You go through– through Hartsfield International.

DENNIS MURPHY: Change at Hartsfield first.

CHENEY MASON, ESQ: Right. And– and so we know that when you land and– and– in Atlanta, depending on which concourse you’re landing in, you’re going to have to wait to get off the airplane. Even if you’re [in] first class. They usually put the thing behind you so you got to wait till half the plane gets off anyway. You got people boxed in– the lady with the kids in the carriage. Or people getting down their bags. Or the fat one can’t get down the aisle.

I mean, whatever the story is, you’ve got delays in getting off the airplane. So if you’ve got a landing time, you don’t get off the airplane at that time. When– when have you ever gotten off an airplane in Atlanta in less than 10 minutes. It’s not going to happen. Then what? Then you have to go from whatever gate you are, down to the middle, to go down the el– the escalators, to catch the subway train to the terminal. Wait for that. Wait while it stops in the meantime. People getting on and off. Get to that. Go up again, the escalators. Get to where you’re in the terminal, out the terminal to ground transportation. And from there to be on the videotape in 28 minutes. Not possible. Not possible. I challenge anybody to show me, and guess what? Did they bring in any evidence to say that somebody made that route, did so? State’s burden of proof. If they can do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.

DENNIS MURPHY: If they can do it in the timeline (or time allotted).

CHENEY MASON, ESQ: Twenty-eight minutes.
. . .
Can’t happen. Didn’t happen. So what’s the explanation. Somebody else. Does that mean necessarily that Mr. Serrano had nothing to do with any of it? Giving again the argument in the best light of the State and the Jury’s suspicion. Not necessarily. But did they prove the case they charged– they proved beyond a reasonable doubt. Absolutely not. Couldn’t have happened in that way.

BOB NORGARD, ESQ4: All the cameras guys were leaving to go to Hartsfield to try to get to the
(UNINTEL) (CHUCKLES)

CHENEY MASON, ESQ: Call me when you’re ready for your check.

Kolodziej took Mason at his word. He took the flight and drove to the hotel in less than 28 minutes, recording his performance of the challenge. He sent Mason a letter seeking to collect the money. Mason then refused to make good and insisted that he was not really serious about the offer. He then argued in court that his words had been edited and that the challenge was directed at the prosecutors not the public. Even though Mason later acknowledged the camera crew could secure the prize, the Court found that the editing changed the meaning and that Mason never saw the edited version aired:

By adding Mason’s omitted words back in between “show me” and “I’ll pay them” in the actual
Unedited Mason Interview, the “challenge” becomes:

I challenge anybody to show me, and guess what? Did they bring in any evidence
to say that somebody made that route, did so? State’s burden of proof. If they can
do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.

No reasonable person could hear and view the totality of that excerpt and conclude that the words “them” and “they” in the last sentence refer to the word “anybody” in the first sentence, as Kolodziej argues. See Resp. at 8 (Kolodziej argues that, under the objective test standard, a rational juror could find that a reasonable person who heard the “challenge” could have concluded that Mason’s “offer” was addressed to the general public, instead of just to the prosecutors).

Thus, the Court held that Mason would not have to make good on the offer . . . at least to the public.

Things are not so bad for Kolodziej. He is now a lawyer in Texas.

By the way, Mason’s client was convicted of the murders in 2006. It appears that the jury thought the defense theory was challenge enough even though there were no films showing Serrano at either airport.

15 thoughts on “Lawyer Allegedly Offers $1 Million To Anyone Who Disproves Client’s Alibi . . . Law Student Disproves Theory But Florida Court Rules Lawyer Does Not Have To Pay Up”

  1. A whole lot of airy fairy maybes…Yes, it does look like the conviction was not much proven. If the chalenger had proved the defendant made those exact moves it would have been much more conclusive for the defendant’s conviction & his lawyer owing a lot of dough.

  2. By the way, Mason’s client was convicted of the murders in 2006. It appears that the jury thought the defense theory was challenge enough even though there were no films showing Serrano at either airport.

    Sad to have juries convict on a theory with no evidence to back it up….

  3. Lawyer’s honor.

    (P.S.: Sorry for the lawyers who could be offended by my evil lawyer joke)

  4. He was one of the liars on Casey Anthony’s “Dream Team” defense.

    P.S. I’m obviously only referring to people who heard about the case and
    felt sorry for Ms. Anthony – and I want to be perfectly clear about that.

  5. MikeA, I trust your judgment but we both know some people can “play” prosperous and not have a pot to piss in. I’ve investigated more than a few.

  6. He says “I’ll challenge anybody”. That seems to be a general challenge regardless of the editing. But at the end of the day it was stupidly said and not thought out. As an attorney he should know, more then most, his words have consequences. As a viewer though even if I thought I could do it I would not have taken it as a person challenge or legitimate bet.

  7. Mason has a very loose tongue and it nearly cost him a lot of dough. If the judge said the prosecutors were his targeted audience, shouldn’t he have to pay them since he lost the case?

  8. The following banter is obfuscating;

    Did they bring in any evidence to say that somebody made that route, did so? State’s burden of proof. If they can do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.

    “State’s burden of proof. If they can do it. I’ll challenge ’em”

    Infers to me that the remark was to the “State”.
    (Hence, not the public at large).

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