By Dan Christensen, browardbulldog.org
In what’s shaping up as an extraordinary clash of legal titans, Broward Public Defender Howard Finkelstein has accused Broward State Attorney Michael Satz of routinely violating defendants’ rights and applying a double standard of justice in the county.
For years, the state attorney has given favorable treatment to police officers and “influential or wealthy” citizens facing prosecution, Finkelstein alleged in a six-page letter sent to Satz on Tuesday. The letter asks Satz to provide better training for prosecutors and to establish new office procedures.
“It is imperative that the Broward State Attorney’s Office treat all persons it considers for criminal prosecution equally. The two systems of justice in Broward County must end,” said Finkelstein, an assistant public defender in Broward since the 1980s.
The Broward County Association of Criminal Defense Lawyers sent its own letter to Satz on Thursday saying it “strongly” backed Finkelstein, who is best known throughout South Florida as Channel 7’s “Help Me Howard.”
Satz, who like Finkelstein is an elected constitutional officer, counterattacked on Wednesday.
In a written reply, the prosecutor instructed the public defender that he’d misinterpreted the law. Satz said Finkelstein’s accusation that Broward prosecutors give special treatment to a favored few was “both false and irresponsible.”
“The members of the State Attorney’s Office work hard to represent all citizens of Broward County who are victims of crime, regardless of their station in life,” wrote Satz, Broward State Attorney since 1976.
Underlying the Finkelstein-Satz dispute is a tussle over evidence – who gets to see it, and who decides who gets to see it.
According to Finkelstein’s letter, Broward prosecutors “either through neglect or by design” have until recently failed to disclose favorable evidence to criminal defendants as required by law, particularly evidence of police misconduct.
Such evidence, known as Brady material, can sometimes be used by the defense to exonerate or to impeach the testimony of a police officer on the witness stand.
The term comes from a 1963 Supreme Court decision in Brady v. Maryland. The court held that prosecutors who suppress evidence favorable to a defendant who asks for it violate due process of law.
Local questions about the state’s obligation under Brady arose Sept. 6 when Assistant State Attorney Sheila Alu emailed a Brady disclosure regarding one case to a counterpart at the Public Defender’s Office, Finkelstein said. The information was a list of police officers under investigation by Satz’s office.
Finkelstein’s office hadn’t seen the list before, even though those officers were listed as witnesses in other open cases.
Public defenders reviewed hundreds of closed cases in which those officers were listed as defendants, but no Brady disclosures by the state were found, Finkelstein wrote.
The Public Defender’s Office filed public records requests seeking the names of all police officers investigated since 2006, and again found no disclosures.
Finkelstein cited a number of examples of investigations of police officers that were not disclosed, but should have been. In some cases, Finkelstein also questioned why those officers were not prosecuted – and wrote that it appeared as if the decision not to prosecute was used as an excuse not to disclose the existence of such cases as Brady material.
“Fort Lauderdale Police Officer Daniel Zavadil and Lauderhill Police Officer John Lafontant both admitted to forging names and falsifying police reports, yet they were not prosecuted and no Brady notices were filed,” he wrote.
“Margate Police Officer Joseph Devito was determined to have filed a false police report after hitting a pole with his assigned police car. Four BSO deputies and the Margate Chief of Police were involved in the investigation, yet no Brady notice was filed.”
“It appears that the Broward State Attorney’s Office gives great deference to law enforcement; it would clearly have filed charges if the same allegations were made against a civilian,” Finkelstein wrote.
Satz’s office recently changed the way it handles Brady requests, and since then hundreds of disclosures have been made, Finkelstein said. In all, more than 300 officers have been identified by the state in either Brady notices or investigation close-out memos sent to the Public Defender’s Office.
“We have received more Brady notices in 12 weeks than we have in the past 30 years,” Finkelstein wrote.
Prior “systemic nondisclosure” is “of particular concern” when it comes to closed cases, Finkelstein told Satz. The reason: people convicted of crimes who did not have access to favorable information that’s only now been disclosed have either limited, or “in most instances, no remedies available.”
Satz did not provide a detailed rebuttal regarding the Brady issues, but told Finkelstein he intends to send him a further response “based on specific facts.”
Satz’s office has long said it will not file criminal charges in a case unless there is a reasonable likelihood of conviction.
But according to Finkelstein, police officers and others get special treatment from Satz in that regard.
“Although the office espouses a filing standard of ‘likelihood of conviction,’ that standard has two distinct meanings. For everyday citizens, the ‘likelihood of conviction’ filing standard means nothing more than probable cause. For police officers or other influential or wealthy citizens, ‘likelihood of conviction’ means that the State Attorney’s Office cannot possibly lose the case.”
Satz denied that accusation, saying the same standard applies “to all persons accused of crimes, whether they are rich or poor, a police officer or a civilian.”
Satz said that in 2009 his office reviewed more than 25,000 felony cases and tens of thousands of misdemeanor and juvenile cases for the filing of criminal charges.
“In each and every one of those cases our policy was – and is – to do the right thing for the right reason. This has always been our policy. Your allegations are misguided and an insult to every assistant state attorney in this office,” Satz said.