“If they can do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.”

From last week’s decision in Kolodziej v. Mason (M.D. Fla. Jan. 29, 2014):

The central issue before this Court is whether a … contract was formed between Defendants and Plaintiff Kolodziej. This purported contract arose as a result of a capital murder trial …. Mason … was one of the attorneys who represented the criminal defendant, Nelson Serrano …, in that 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. 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 … 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 … 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 … 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.

Those comments, as broadcast on NBC, were,

MURPHY: (Voiceover) And the last part of the time line, the defense argued, was even more implausible. In less than half an hour, Serrano would have had to get off a wide-bodied jet, exit Atlanta airport, one of the busiest in the world and arrive back at his hotel five miles away, all in time to be photographed looking up at the surveillance camera.
([footage of] [a]irplane; inside airplane; airplane; highway; surveillance videotape of Serrano at hotel)

Mr. MASON: I challenge anybody to show me — I’ll pay them a million dollars if they can do it.

MURPHY: If they can do that in the time allotted.

Mr. MASON: Twenty-eight minutes, can’t happen. Didn’t happen.

Plaintiff Dustin Kolodziej, then a law student, heard this and decided to take up the challenge. Indeed, he claims he did what Mason challenged the public to do, and is now owed $1 million.

No dice, says the court, and for a very basic factual reason — Mason, the court said, never made the offer that Kolodziej says he accepted, because NBC’s edited interview distorted Mason’s statement in the actual interview, which was:

[Mr. MASON:] 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.

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.

And, according to the court (emphasis added), “Read, seen and heard in context, the above-noted excerpt from Mason’s unedited interview can only lead a reasonable person to but one understanding, that the words ‘them’ and ‘they’ as used throughout the entire excerpt now refers to the state prosecution.” Mason was challenging the prosecutors (quite possibly in a way that would reasonably be seen as hyperbolic rather than serious, but that’s a different matter). He wasn’t extending his challenge, and any possible $1 million offer, to the whole world. Mason thus made no offer to Kolodziej, and there was thus no offer that Kolodziej could turn into a binding contract, no matter how quickly he managed to get around.

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