By Dan Christensen, BrowardBulldog.org
The Broward State Attorney’s refusal to pursue a Fort Lauderdale Police Internal Affairs report that was purged of information about an officer’s arrest has drawn the ire of Public Defender Howard Finkelstein.
Finkelstein asserts that the police broke Florida public records law when the head of Internal Affairs changed a police database to delete any mention of the out-of-state arrest of Sgt. Jerald Fuller.
Fuller had been arrested in New York in connection with a dispute involving property damage. A New York municipal judge dismissed the case and sealed the court file four days after Fuller’s July 19, 2009 arrest.
Fort Lauderdale Police Capt. Rick Maglione, who left Internal Affairs in 2011, says he removed the arrest information to comply with the judge’s order.
It can be a crime in Florida to falsify or alter a public record, whether a paper report or an electronic database. So when a tipster alerted the Public Defender’s Office in February to what was done, a request was made for State Attorney Michael Satz’s public corruption unit to investigate.
Assistant State Attorney Tim Donnelly said last week that he spoke with Maglione and determined no investigation was necessary.
“There is no crime in editing your own document,” Donnelly told Broward Bulldog. “It’s not a public record. It’s like a Word document.”
Finkelstein is not happy with Donnelly’s conclusion.
“Despite direct evidence that a police captain, while conducting an Internal Affairs investigation, altered a report to conceal the fact that a police officer was arrested, your office has found nothing wrong nor even found the need to investigate,” Finkelstein said in a recent letter to Satz.
In an interview, Finkelstein added, “The public record is not a work of fiction, but that’s what happened here….It was creative writing to make it appear that what happened didn’t really happen. If it isn’t illegal, it is certainly unethical.”
SERGEANT DISCLOSED ARREST
Fuller, a supervisor with the city’s controversial anti-drug unit known as the Northwest Raiders, disclosed his arrest to superiors. Details, however, are sketchy. Not only is the New York court file sealed, Maglione did not obtain – or request – a copy of the New York police report describing what happened. New York law allows police agencies access to sealed cases.
“Everything I had was self-reported” by Fuller, said Maglione, a former Raider. “I was satisfied with that because I was also assured (by Fuller’s New York lawyer and an unnamed local district attorney) that no crime occurred.”
Maglione’s account, based solely on what Fuller told him, states that Fuller was on vacation in Niagara County, N.Y. on July 19, 2009 when “he became involved in a disturbance at a privately-owned residence.” Fuller, a 19-year-veteran, was with his brother “and another individual known to the Fuller family, the report says.
“The disturbance prompted a neighbor to contact the local police and it was initially determined that Sergeant Fuller and his brother were responsible for some minor damage to the other individual’s property, but any contemplated charges were subsequently dismissed once it was determined that no crime occurred,” the report says.
Maglione’s report does not say what crime Fuller was charged with, provide the location and time of the incident, describe the damage or say what police agency investigated. It also does not mention that one or two other persons were arrested.
Likewise, the police file includes no notation that the report was altered because of New York law. The department’s software system, IAPro, also does not track such changes. “It overwrites the first entry entirely,” Maglione said.
Maglione, now a top aide to Chief Frank Adderley, says he deleted the arrest information in an update before finalizing his report in August 2009. But Al Smith, Finkelstein’s chief investigator, said he determined the alterations were actually made about a year later. During that time, he said, the cleaned-up version was sent out in response to several requests for information about Fuller.
The arrests occurred on a Sunday. By the end of business Thursday, the case was dismissed and sealed by Somerset Town Court Justice Donald P. Martineck.
A few days later, Fuller presented Maglione with a letter from his attorneys, George Muscato and Michael H. White Jr., declaring that “all charges” had been dismissed and that complainant Clayton Cooper had signed a document stating “he did not want to pursue any further charges” and, in fact, had never wanted “to bring charges in the first place.”
Cooper is not further identified. A 78-year-old man with the same name who resided in a small home in the tiny town of Barker, which is surrounded by Somerset, N.Y, died in September 2010.
CLOSED CASE COMES BACK
Maglione closed Fort Lauderdale’s Internal Affairs investigation on August 10, 2009. He did so, he said, without obtaining a police report to verify what Fuller had told him. A signed hard copy of his report, sans mention of the arrest, is included in the file. Case closed, he said.
But two and a half years later, on February 1, 2012, investigator Smith, a former Fort Lauderdale police detective, received at his home copies of two nearly identical internal Affairs reports about the New York incident. The second, as Smith put it in his referral to prosecutors, was “sanitized” to omit the fact of Fuller’s arrest.
The Public Defender’s Office filed a public records request seeking Fuller’s file because he is a witness against a client. The police coughed up the version of the report that does not mention that he was arrested.
Police legal advisor Bradley Weissman now says it was a mistake for police to release even the censored report because of the blanket sealing order.
“I believe we made an error when we turned it over,” Weissman said. Still, Florida’s broad public records law requires such records to be open to the public.
Fuller’s Fort Lauderdale attorney, Michael Gottlieb, is upset that someone leaked Internal Affairs records about his client. He said he suspects it was done by “somebody in internal affairs who wanted to get somebody else in trouble and who thought this case was improperly closed or that favoritism was shown.” He declined to name names.
A MATTER OF CONCERN
While prosecutors have brushed the matter off, Finkelstein’s letter to Satz calls it a matter of “great concern” because defense counsel rely on information in Internal Affairs files to locate information they can use to impeach the testimony of officers who are witnesses against their clients.
The disagreement is part of long-running legal spat between Satz and Finkelstein about pre-trial disclosure by prosecutors. For nearly 50 years, courts have required prosecutors to turn over so-called Brady evidence – information favorable to a defendant.
Satz has said his disclosure policy “far exceeds” his legal obligations under Brady. Finkelstein counters that Broward prosecutors tend to withhold too much potentially favorable evidence and have little interest in enforcing Brady requirements when it comes to the police. He cited that concern in his letter to Satz.
“The failure to address this incident evidences the double standard your office employs when police misbehavior is at issue,” Finkelstein said.