Friday morning’s call came months before Kelly Mathis expected it.
The news was everything for which the former Jacksonville Bar Association president had hoped.
The 5th District Court of Appeal reversed the 103 gambling-related convictions against him and ordered a new trial.
One in which Mathis will be able to present evidence to rebut prosecutors’ assertions that he knowingly helped Allied Veterans of the World violate the state’s game promotions law.
The ruling gives Mathis a chance to clear his name and perhaps be allowed to practice law again, three years after his license was suspended.
Mathis was on his way to work Friday when one of his appellate attorneys, Michael Ufferman, called about the court’s decision.
“He was extremely grateful,” Ufferman said of his client. “I think he broke down in tears.”
Mathis acknowledged he became emotional after learning he had won the appeal and was no longer facing six years in prison, which was precious time away from his four daughters.
“It’s one thing to hope for it and think you’ve got a good chance,” he said Sunday. “It’s another to actually hear the news.”
In March 2013, Mathis had been labeled the mastermind of what Attorney General Pam Bondi’s office called an illegal $300 million gambling ring that operated dozens of internet cafes under the guise that proceeds would benefit veterans’ charities.
From the start, Mathis contended he only served as the group’s attorney to offer advice on Florida’s game promotions law. He wasn’t part of the business, he said, and the $6 million he was paid over the years was for legal fees.
In less than a year, Mathis had gone from practicing law — a career he loved — to having his license suspended after the jury’s verdict.
But the convictions had impact far beyond Mathis.
Mitch Stone, Mathis’ defense attorney, said lawyers around the country were worried.
They were concerned about being convicted of a crime if prosecutors didn’t like the advice attorneys provided to their clients. And they were worried that a judge could severely limit evidence that could be presented for the attorneys to defend themselves.
Two national attorney groups joined in the appeal by providing briefs.
The First Amendment Lawyers Association stressed the importance of attorneys being able to speak freely with their clients without fear of legal jeopardy.
The group's brief called the threat of prosecution against an attorney based on legal advice “an odious species of censorship.”
“That practice not only silences the attorneys who might render the advice, but adversely affects all those clients who will never receive the advice or representation to which they are entitled,” the brief said.
The National Association of Criminal Defense Lawyers said Mathis was entitled to establish the good faith effort he made when providing the advice to his clients.
“Perhaps his conclusion was correct. Perhaps it was incorrect,” the group's brief said of Mathis’ opinion. “But offering his conclusion was not a criminal offense.”
Stone agreed.
“Theory of defense is one of the cornerstones of the criminal justice system,” he said. “A defendant has to be allowed to put on his defense.”
And, he said, the theory of defense doesn’t have to be tied only to the theory of prosecution.
In the Mathis trial, the theory of prosecution was a bit of a moving target.
Roadblocks from the beginning
Going into the trial, Stone was confident with the defense strategy that had been developed over seven months.
He had lined up 30 witnesses — state officials, prosecutors, city attorneys and others — who would testify they believed Allied Veterans of the World’s internet cafes were legally operating under state law.
Many of the witnesses had met with Mathis as his clients were preparing to open internet cafes in cities around the state.
That included Steve Rohan, a former deputy general counsel for Jacksonville, who testified outside the presence of the jury that he believed Allied Veterans was following the state’s game promotions law.
Customers purchased internet time at the internet cafes and received free sweepstakes entries that had to be checked at the business on devices that resembled slot machines.
“The (sweepstakes) exception Mr. Mathis proposed, while people might not like it, was a legitimate exception,” Rohan said during the trial.
In 2010, City Council passed legislation regulating the industry.
Stone also wanted to call state Rep. Scott Plakon who at least twice proposed a bill in the Legislature to make internet cafes illegal. But Stone wasn’t allowed to.
And the jury also couldn’t hear that the Department of Agriculture & Consumer Services had analyzed the issue and reached the same conclusion before Mathis did that the internet cafes were legal.
But the jury wasn’t allowed to hear all of that and more during the trial after the judge granted a motion in limine preventing testimony about communication Mathis had with other attorneys about the legality of the business model.
That motion also kept jurors from hearing evidence about county and city ordinances on whether the businesses were legal.
The motion was based on prosecutors saying they weren’t prosecuting Mathis because he was the group’s attorney.
Instead, they contended they were prosecuting him because he was part of the business. And therefore, Mathis’ legal opinion did not matter.
But almost from the beginning, that theory didn’t hold true.
Conflicts from start of the trial
In its 11-page ruling, the 5th District Court of Appeal said Circuit Judge Kenneth Lester of Seminole County accepted the prosecution’s contention Mathis was not being charged as the attorney, but “only as an ordinary member of the organization.”
“I think you’re elevating Mr. Mathis much higher than the state intends to do it. I think they’re putting him down on the same common level as everybody else for the most part,” the court’s ruling quoted Lester as saying.
But, the ruling said, prosecutors contradicted the contention they would not focus on Mathis’ capacity as an attorney as early as opening statements.
The ruling cited several examples, including prosecutors saying of Mathis, “He’s a lawyer and he gamed the legal system.”
Throughout the trial, witnesses for the prosecution testified about issues with Mathis’ legal conclusions, the appellate court said, but the defense wasn’t allowed to rebut that information.
The appellate court said prosecutors also asserted Mathis knowingly provided false legal advice.
“They tell you he had a love of the law. You know a love of the law would involve respect. It wouldn’t be to come in here and try to manipulate it to make it work so that you can bill millions. That’s not a love of the law,” the ruling quoted prosecutors.
Mathis was convicted of one count of racketeering and 51 counts each of conducting an illegal lottery and possessing an illegal slot machine.
He was acquitted on one conspiracy to commit racketeering charge and the judge dismissed 51 counts of money laundering before the trial began.
Ultimately, the appellate court decided Mathis was entitled to present evidence that showed he “diligently” researched the issue before determining Florida law didn’t prohibit internet cafes.
Jurors also should have been able to know the specifics of Florida law dealing with game promotions, the court said.
‘I never saw anything like this’
Ufferman was aided in the appeal by Peter Webster, a former 4th Judicial Circuit judge and member of the Bedell Firm. He also was on the 1st District Court of Appeal for 20 years.
Webster, who knew Mathis from his time in Jacksonville, approached Ufferman about helping in the appeal.
He recalls being surprised by Mathis’ conviction and even more surprised when he learned what had occurred during the trial.
“On the DCA, I heard a couple of thousand cases,” Webster said. “And I never saw anything like this.”
Prosecutors now have several options, including asking the Florida Supreme Court to weigh in on the case and pursuing a second trial against Mathis.
In a statement released Friday, Bondi’s office said it was reviewing the ruling.
Webster said considering the evidence the appellate court said has to be allowed, “I would think they would think long and hard about trying this case again. … It’s not the kind of case you want to try again and lose.”
He pointed out the expense of the first trial, which lasted nearly a month.
“I think any intelligent person would want to cut their losses,” Webster said.
Ufferman, Webster and Stone are confident if a second trial is held, Mathis will be acquitted because jurors will be allowed to hear his full defense.
“We’re hopeful this be end of the case,” Ufferman said.
For Mathis, the end includes a lot more.
Hoping to return to being a lawyer
Mathis hasn’t been able to practice law for nearly three years. He’s had to help support his family through a series of jobs, none of which were long-term solutions.
Pharmaceutical sales, freelance staffing, selling shirts. Anything he could try.
But, he said Sunday, “Everything was a bust.”
Mathis is now doing freelance paralegal work for attorney Mike Lindell.
Another of Mathis’ attorneys has already spoken to The Florida Bar about getting Mathis’ law license reinstated. He’s anxious to return to practicing law.
“That was my life. People shouldn’t necessarily define themselves … by their job,” Mathis said. “But that was who I was. It was always the plan and a goal in life.
“I was living it and loving it,” Mathis added.
He’s not sure if he would work for a firm or open his own office again. He loved running his own firm. “It was a joy to go to work,” he said.
Mathis is happy he was allowed to remain free during his appeal. It gave him time to be part of several important moments in his daughters’ lives.
He was able to see his oldest daughter graduate from the University of Florida.
He was there as two other daughters graduated from the Episcopal School of Jacksonville and enrolled at Florida State University, his alma mater.
And he’s seen his youngest daughter become a freshman at Bishop Kenny.
Mathis also is thankful he was able to share the court’s ruling with his mother, whom he feared may not live long enough to see him vindicated.
It’s not a full vindication, he knows. But a big step toward that and so much more.
@editormarilyn
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