No One Can Hurt Him Anymore. Scott Cupp
but his gut told him that everyone in Florida was going to back Dr. Benz.
And Cupp didn’t just want a second opinion—he wanted a second autopsy.
How were they going to do it? Could they do it? He never had. At that point in Cupp’s career, he had been involved in only a few homicides, and the Hernandez case was the first one in which he had been the lead prosecutor.
He began by telling Detective Waites, and Waites’s superiors, about Burton—but Burton was in Atlanta. How could this be accomplished? What would state attorney Barry Krischer say? He had been in office just long enough to get the furniture in the right place—and Cupp was going to tell him he needed to go toe-to-toe with the chief medical examiner in a purely circumstantial-evidence homicide? Not only that, but the man he wanted to do the second autopsy was in Atlanta!
Cupp started by looking at the statutes, and what he found was Florida Stature 925.09, AUTHORITY OF STATE ATTORNEY TO ORDER AUTOPSIES: “The state attorney may have an autopsy performed, before or after interment, on a dead body found in the county when he decides it is necessary in determining whether or not death was the result of a crime.”
He would later refer to this law as “the state attorney trumps the medical examiner” law. It didn’t say anything about the autopsy being performed within the state, so maybe they could pull it off. Cupp decided to approach Krischer.
He knew he had a fighting chance. Krischer had a true commitment to improving child abuse prosecution in Palm Beach County, and had made it an issue in his campaign. When he took office, there were only three prosecutors doing child abuse for six criminal divisions. Krischer planned to give Cupp enough positions so that they would have one per division. Additionally, his background was solid.
Prior to becoming the state attorney, Barry Krischer had been the attorney for the Child Protection Team. It was obvious that when he spoke about legal issues involving child abuse, he knew what he was talking about. But how would he react to this? One could easily envision all sorts of very bad—and very public—endings. The media hadn’t done much with A.J.’s death at that point, but they would. They were watching and waiting. Scott Cupp was hearing—which meant Krischer was hearing—that HRS “had really dropped the ball” this time.
Cupp had already been present at the hastily called meeting at the PBSO, attended by a rather large number of HRS personnel. He knew that was significant—for two reasons. First, it was at the sheriff’s office—and not at HRS. Second, it was attended by a man from the inspector general’s office in Tallahassee—an agency whose task was to conduct internal investigations of state agencies like HRS.
Many things were going on behind the scenes and probably none of them would be primarily designed to make the prosecution of A.J.’s killer any easier. They would have to move quickly.
The morning he planned to approach Krischer with the letter he wanted him to sign, Cupp arrived for work early. From here on out, he would be arriving for work early most mornings. He was surprised to find Krischer already at work in his office. No one else was there yet, so Cupp had his undivided attention.
Krischer asked, “What are you doing here so early?”
Cupp could tell from the look on Krischer’s face that he knew it had to do with A.J.’s case. It was important to him that right from the beginning he didn’t pull any punches. He wanted to convey very clearly that this case had enormous potential—if not handled correctly by everyone involved—to go very, very badly.
Cupp replied, “We need to talk.”
“Okay.”
Barry Krischer had a way of quickly reading a person’s demeanor, and when necessary, he took on an almost fatherly tone and attitude. That would make them tell him everything—sometimes more than they had wanted.
This was one time Cupp held nothing back. He, quickly but thoroughly, told Krischer about the various meetings that had already taken place. Saying it to Krischer made Cupp realize just how extraordinary the case already was. Although it was only a few days old, it was already consuming many, many hours of a lot of people’s time.
Scott Cupp could tell by Krisher’s reaction that he was not surprised in the least about Benz’s behavior. They spoke about HRS’s role and the possibility of investigating them at some point.
Finally Cupp presented the letter he had prepared for Krischer’s signature. He told him about the power he felt Krischer had—under the statute—to order a second autopsy. He told him about Joe Burton and how strongly he felt that a second autopsy—if Krischer would order it—had to be done by someone with no official ties, not only to Palm Beach, but to Florida as well.
Cupp told him there wasn’t a doubt in his mind that Jessica had murdered A.J. And after viewing the tape of her at the sheriff’s office, he knew—if given the chance—he could make a jury feel the same way. Not just convince them—but also make them feel the same way he was feeling.
The meeting didn’t last as long as Cupp thought it would, and it didn’t involve as many people as he thought it would. After twenty or thirty minutes, Krischer seemed to know all that he needed to, but he was intent on making sure that Cupp was okay with his own decision.
“Are you sure this is what you want to do?”
“Yes, sir.”
Cupp’s formality with Krischer told him that he was firm in his resolve to go forward—not just professionally, but personally as well. He was letting him know that he would do what needed to be done and see it through to the end.
Few state attorneys would want to inform the chief medical examiner that they were taking custody of a body and ordering a second full autopsy to be done. And, chances are, none of them would have signed the letter after barely reading it and making no changes—and without having a chief assistant state’s attorney or deputy lend their counsel to the situation. By putting his personal and political trust in Scott Cupp, Krischer galvanized Cupp’s resolve even more.
Five days after his tragic death—and four days after the first autopsy—A.J.’s body was packed in dry ice, placed in a container specially made for such things, and flown to Lawrenceville, Georgia, a suburb of Atlanta, to have a second full autopsy performed on him.
It was on Friday, May 7, that Detective Michael Waites had the somber duty of accompanying the body—transported by the Aviation Unit of the sheriff’s office—at the request of the state attorney’s office.
After Dr. Joseph Burton examined the body and performed the second autopsy, which took three to four hours, he advised Waites that the victim had been abused.
As Dr. Benz had done earlier in the week, Dr. Burton listed the cause of death as drowning, but he left the manner of death undetermined, pending microscopic examinations of standards recovered from various bruises on the victim. A complete copy of the autopsy report would eventually be provided to the sheriff’s office, the Palm Beach County Medical Examiner’s Office, and the Palm Beach County State Attorney’s Office.
Scott Cupp would never forget A.J.’s second autopsy, which he had orchestrated successfully. As Joe Burton performed his work, Cupp was at home playing with his two daughters, four-year-old Kaity and two-year-old Elizabeth. He was trying his best to enjoy the evening. It was his thirty-seventh birthday.
CHAPTER 6
He never had the life of a child. He looked for affection—and would cling to it when he found it. He wanted to be a little boy, but never had the chance.
—Detective Michael Waites
The same day that A.J.’s body was flown to Georgia, Detective Calloway continued his investigation by doing a follow-up interview with thirteen-year-old Jamie Falk at her home. Jamie was a seventh-grade student at Christa McAuliffe Middle School. He asked if she had ever witnessed any abuse directed at A.J.
She told him that about a year earlier she had seen A.J. seated at the dinner table with a plate of food