Broward courts accused of nurturing double standard of justice for poor, minorities

By Dan Christensen, FloridaBulldog.org 

Broward Chief Judge Peter Weinstein, left, and Public Defender Howard Finkelstein

Broward Chief Judge Peter Weinstein, left, and Public Defender Howard Finkelstein

A letter from the U.S. Justice Department urging state judges across the country to eliminate “common” court practices that illegally trap poor defendants in cycles of debt and jail is reverberating in Broward with accusations that courts here favor the well-off.

Broward Public Defender Howard Finkelstein once again is leading the charge for systemic reform as evidenced by a series of testy recent written exchanges with Broward Chief Judge Peter Weinstein. Among other things, Finkelstein wants the courts to scrap the use of so-called “convenience bail bonds” the poor often cannot afford, and accuses judges of fostering a “double standard” of justice by ignoring the disparate treatment of minorities and the indigent.

“This jurisdiction’s practices have effectively institutionalized racism by disproportionately incarcerating poor minorities for decades,” Finkelstein concluded Sept. 2 in his most recent letter to Weinstein.

In an interview on Friday, Weinstein replied, “I don’t know where he gets that from. Every judge ascribes to the saying that justice is blind and ignores race, creed, national origin and gender in ruling. Howard can absolutely write what he wants, but that doesn’t necessarily make it so.”

The Department of Justice’s March 14 letter, signed by Deputy Assistant Attorney General Vanita Gupta, followed a gathering of judges, court administrators, lawmakers, prosecutors, defense attorneys and others last December to discuss fines and fees imposed by state and local courts. The letter said the convocation, held in the wake of the department’s investigation of racially troubled Ferguson, Missouri, “made plain that unlawful and harmful practices exist in certain jurisdictions throughout the country.”

U.S. Attorney General Loretta Lynch described those illegal practices as “the criminalization of poverty.”

The letter explained it was issued to help the courts ensure that they operate fairly, noting the illegal enforcement of court fines and fees can have “profound” effects on low-income persons accused of “misdemeanors, quasi-criminal ordinance violations or civil infractions.”

“Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community;

lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape,” the nine-page letter said. “To the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local government and their constituents.”

A caution from Justice

Among other things, the letter cautioned that courts “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”

Finkelstein, a state constitutional officer, filed a public records request with the Broward court to obtain a copy of the Justice Department’s letter. Weinstein later explained that he “did not provide the letter to any stakeholder as it was addressed to the courts to assist with review of local practices and procedures.”

Weinstein said Friday he’s waiting on Florida’s Office of the State Court Administrator. “They’re reviewing it and will come back and advise us,” he said. “But I really don’t believe we are doing some of the things we are accused of. We don’t put people in jail because they can’t pay a fine.”

According to Finkelstein’s Sept. 2 letter, however, “Individuals are often held in jail following a magistrate hearing for a minor offense simply because they cannot afford to post the bond.”

Beyond the fundamental question of fairness is the impact that bond requirements have on Broward’s chronically overpopulated jail system, which has been under a federal consent decree and monitoring for decades.

In July, the Sun-Sentinel reported the findings of court-appointed jail population expert Dr. James Austin, who said Broward’s jails typically house 4,500 to 4,600 people, with 5,144 beds, but when the population exceeds 85 percent of capacity – or about 4,400 inmates – the system becomes strained.

According to the paper, Austin’s report went on to say that at the time of his analysis in 2015 about 300 inmates were being held on bonds of $100 or less.

The Eighth Amendment to the U.S. Constitution says “excessive bail shall not be required, nor excessive fines imposed.” Federal courts have interpreted that to mean that a defendant’s bail cannot be set higher than an amount that’s likely necessary to ensure his presence at trial.

Defendants charged with first-degree misdemeanors like petty theft or possession of a small amount of marijuana must post a $100 bond to get out. Those charged with a misdemeanor of the second degree, such as disorderly intoxication or loitering will need $25.

But even those small amounts can be difficult to scrape up for the homeless or the otherwise down and out.

‘Follow other jurisdictions’

In his summer correspondence, Finkelstein urged Weinstein to “follow other jurisdictions and begin implementing the release of misdemeanants without monetary bond.” He cited Calhoun, Ga., which in January “implemented recognizance release procedures” following a federal judge’s order.

The chief judge responded to Finkelstein that Broward judges do consider non-monetary releases “and divert as many individuals as possible to the Broward County Sheriff’s Pre-Trial Release Program.” The program includes screening, assessment and, for those who get out, monitoring.

Yet current bond practices that allow moneyed defendants to post a bond and walk free until trial “disproportionally affects minorities and the indigent,” according to Finkelstein.

“Diverting individuals to the pre-trial release program creates a double-standard wherein those with money are not required to be supervised by the Sheriff’s Office, while those without money require supervision,” Finkelstein wrote in his Sept. 2 letter.

In Friday’s interview, Weinstein said he is opposed to releasing all misdemeanor defendants on their own recognizance, noting that a “staggering” number of warrants are issued every year for defendants who fail to show up for trial.

“Whether to release is within the discretion of the judge,” Weinstein said. He cited domestic violence as a crime that is inappropriate for such treatment.

“Domestic violence may be a misdemeanor, but the amount of psychological abuse and previous physical abuse that a spouse may have suffered may place them at risk of serious emotional harm an even death,” Weinstein said.

In 2015, following complaints from State Attorney Mike Satz’s office, the court revised its bond schedule to require misdemeanor defendants charged with violent offenses such as battery, arson and domestic violence to appear before a First Appearance court judge before being eligible to post bond.

Finkelstein, however, argues that Broward’s bond schedule should be abandoned and that all defendants should be brought before a First Appearance court judge “to allow for individualized release conditions.”

“Individual determinations, however, require a 24-hour magistrate. This circuit has decided not to place such a ‘hardship’ on the judiciary, but instead place the true hardship on the indigent,” Finkelstein wrote.

Secret U.S. Marshals’ report ID’d security weaknesses at Broward courthouse before escape

By Dan Christensen, FloridaBulldog.org 

Broward County Courthouse

Broward County Courthouse

A confidential U.S. Marshals’ security assessment for the Broward County Courthouse exposed numerous weaknesses in the building’s security system four years before last week’s scandalous escape of a 21-year-old murder suspect.

The assessment included several recommendations that, if implemented, may well have prevented Dayonte Resiles’ desperate dash out of Judge Raag Singhal’s courtroom, down four flights of stairs and out a fire emergency door to short-lived freedom.

Resiles, who escaped one week ago, was captured Wednesday without incident at a West Palm Beach motel and returned to Broward. Seven people have been charged with aiding in the escape of Resiles, who is accused of stabbing to death Jill Halliburton Su in her Davie home in 2014.

Resiles’ arrest, however, did little to ease anxiety about courthouse security.

“Here’s the bottom line, and it’s something we’ve been talking about for years and clearly predates Sheriff [Scott] Israel. We do not have sufficient staffing from the sheriff’s department in this courthouse,” Broward Chief Judge Peter Weinstein said Thursday.

“We constantly hear from the county, ‘We give the sheriff sufficient funding to run the department.’ The sheriff says, ‘I don’t have enough manpower.’ And we’re the people in the middle,” said Weinstein.

The first page of the U.S. Marshals Service security assessment for the Broward County Courthouse.

The first page of the U.S. Marshals Service security assessment for the Broward County Courthouse.

The U.S. Marshals’ assessment, a copy of which was obtained by the Florida Bulldog,  similarly noted the need for more law enforcement personnel in both the lobby screening station and courtrooms.

“There is not an armed security officer assigned to each courtroom, instead, there are civilian court deputies. Very few of the courtrooms have armed security officers,” says the assessment. “On an average day, the central courthouse has approximately 14 law enforcement officers working in the building. This building has 54 judges and 11 magistrates. In-custody defendants are ‘dropped-off’ in courtrooms with no law enforcement personnel present.”

The recommendation: “one court deputy for every judge. Court deputies should be armed and trained by BSO and should have access to a duress alarm. Two law enforcement officers for in-custody defendants,” with an additional officer for each additional defendant.

Israel tweaks courthouse security

On Monday, Sheriff Israel moved the Broward Sheriff’s Office part-way toward the Marshals’ recommendations. From now on, he said, maximum-security inmates appearing in court would have a sworn deputy with them at all times, not just a civilian bailiff. A detention deputy who escorts the prisoner to court “will only release custody once an armed deputy is present,” the sheriff said in a statement.

Israel did not address the report’s call for shielding judges with bulletproof glass or improving the knee wall and gate that now partially separates the courtroom gallery areas from public seating area and does not extend the width of the courtroom.

WPLG Local 10 reported Monday that Israel did not accept $2.6 million offered by the county last year to beef up courthouse security. The offer, said to be in writing, would have doubled the number of armed courthouse deputies from 29 to 58 and also allowed the sheriff to “guarantee that every high-risk inmate like Resiles could be accompanied by at least one armed deputy in addition to a bailiff,” the television station reported.

BSO spokeswoman Veda Coleman-Wright responded Thursday: “We support having an armed deputy (plus additional BSO personnel) in every critical courtroom in the courthouse, but the county has not approved additional staffing or funding to provide this level of coverage.”

Coleman-Wright also provided a Wednesday memo written to the County Commission by BSO General Counsel Ron Gunzburger. It accuses county administrators of holding the $2.6 million “hostage until the sheriff signs a global memo of understanding (MOU)” for the entire judicial complex that would build on existing staffing levels that are “woefully inadequate,” locking in future personnel shortfalls.

Broward Sheriff Scott Israel

Broward Sheriff Scott Israel

“If the sheriff would sign the proffered MOU, he would be agreeing to continue inadequate and unsafe staffing for the greatly expanded size of the entire complex…The sheriff is unwilling to sign this deeply flawed agreement,” the memo says.

Assistant County Administrator Alphonso Jefferson disputed that account. He said the MOU would ensure that dollars allocated by the county specifically for courthouse security would actually be spent by the sheriff on courthouse security, and not be diverted to the sheriff’s other priorities.

“Essentially, we want to make sure the money is earmarked for courthouse security,” said Jefferson. “You don’t want to be back with the same issue down the road.”

BSO and Broward’s judiciary asked the Marshals’ Office to evaluate security because of their expertise in arranging security for federal courthouses. The evaluation, completed in July 2012, was done after several fleeing defendants had highlighted courthouse security deficiencies.

“What report?”

According to Jefferson, however, the security assessment was done without the county’s knowledge. He said county officials didn’t learn about it until November 2013. “It was at a meeting with BSO and the judiciary when we heard about the report. We said, ‘What report?’”

The county soon put together a task force of all the players, including the court administrator’s office. He said that as a result, the county has been spending $1.8 million to address a number of recommendations – for example, installing security cameras and improving security at entry screening areas in the East Wing and the North Tower that houses felony courtrooms

The Marshal’s security review looked at a wide variety of areas from outside perimeter security to courtrooms and chambers, public area and access control and law enforcement staffing and technology.

“Security is of fundamental importance to every court because the impartial and independent application of the law may be threatened by intrusion, disruption, intimidation, force, theft, malicious and environmental disaster,” says the assessment. “If a court cannot operate with a high degree of security, its legitimacy has the potential to be undermined.”

Other recommendations included the installation of numerous closed circuit television cameras inside and outside the courthouse, door and window alarms, additional barriers to prevent vehicle intrusion, better external lighting and better monitoring of nighttime cleaning crews.

The marshals’ assessment team, while acknowledging that implementing its recommendations would be costly, emphasized “that an acceptable level of security will only be reached when all of the measures at the best practice level are incorporated… Care should be taken to prioritize and implement as many of the recommendations as quickly as possible.”

The review did not estimate costs, but some were simple and relatively inexpensive. For example, report notes that in many courtrooms the door leading to a judge’s chambers had the lock on the courtroom side of the door.

“This means that if someone was chasing the judge and the judge runs into chambers, the judge has no way of locking the door. This also means that prior to court commencing, anyone could turn the lock and have access to chambers,” says the report, which recommended reversing the locks, with the deadbolt on the chambers’ side.

Many of the reports’ recommendations have not been adopted. Chief Judge Weinstein said, however, that many would be incorporated into the new, $250-million high-rise courthouse building that remains unfinished. The new courthouse was supposed to open last year, but is now expected to open in October, said Weinstein.

After the new courthouse opens, the old 10-story courthouse will be demolished and a plaza and new parking facility will be installed. The more modern felony wing on the east side of the courthouse will remain, and be connected by walkways to the new 20-story courthouse.

Broward medical examiner’s evidence policy worries prosecutors, defense lawyers

 

By Eric Barton, FloridaBulldog.org 

Broward Medical Examiner Dr. Craig Mallak

Broward Medical Examiner Dr. Craig Mallak

The Broward County medical examiner has been destroying some tissue and blood samples after they are a year old, a policy defense attorneys and prosecutors say could affect untold numbers of criminal cases.

Dr. Craig Mallak told the Florida Bulldog he instituted the policy shortly after taking Broward’s chief medical examiner position in 2012. He says the rule helps ease his office’s overcrowded evidence storage and also conforms to the norms of his industry.

The change was never publicly announced. Instead, Fort Lauderdale defense attorney J. David Bogenschutz discovered it during depositions in a murder case. The Medical Examiner’s Office destroyed a year-old blood sample in that case, and now Bogenschutz believes charges against his client should be dropped.

Attorneys on both sides of criminal prosecutions say other cases could be affected by the destroyed-evidence policy. After learning of the change in 2013, Broward Assistant State Attorney Brian Cavanagh sent an email to fellow prosecutors warning that it “presents a significant destruction of evidence problem.”

So far, no cases have been thrown out or lost at trial because of the policy. But Public Defender Howard Finkelstein said the change will likely lead to requests for dismissals and mistrials in criminal cases where the evidence has been destroyed. In others, the destroyed evidence might simply be something that defense attorneys use to cast a reasonable doubt.

“There are plenty of ways you can increase storage capacity, but you can’t reclaim evidence once it’s destroyed,” Finkelstein said. “There will be a cloud over this kind of evidence for as long as this policy continues.”

The medical examiner’s practice of destroying year-old toxicology samples came to light as Bogenschutz developed his defense for Ronald Melnik on a second-degree murder charge.

According to prosecutors, Melnik shot Reza Payan shortly after midnight on Jan. 1, 2011. Bogenschutz said Melnik claims that Payan, a heavily trained Brazilian ju-jitsu fighter, attacked him for no reason and that he shot his longtime friend five times to defend himself.

Bogenschutz was going over the evidence with his client about a year after the shooting when Melnik honed in on a crime scene photo. On the ground near Payan’s body was a small vial, attached to Payan’s keychain.

The vial contained ecstasy, or MDMA, a psychoactive drug, Bogenschutz said. That night, Payan had also been drinking and smoking pot heavily. Mixed with ecstasy, that could lead to inexplicable aggression.

Police had taken a sample of Payan’s blood, so Bogenschutz sought to have it tested for ecstasy by an independent lab.

Blood sample destroyed

In April 2015, Bogenschutz learned from Dr. Gary Kunsman, the chief toxicologist at the Broward County Medical Examiner’s Office, that the sample had been destroyed under the new policy.

In response, Bogenschutz filed a 180-page motion to dismiss the charges against Melnik. At issue is a legal term called spoliation, which typically comes up when police or prosecutors have deliberately hidden evidence.

Fort Lauderdale defense lawyer J. David Bogenschutz

Fort Lauderdale defense lawyer J. David Bogenschutz

“The question for the judge is, can this destruction of evidence affect the outcome? And we believe that it clearly does,” Bogenschutz said.

The bigger issue, Bogenschutz said, is how this might affect other cases, especially those filed months after a crime. The defense in those cases may have no chance to conduct its own analysis of evidence that has been destroyed.

“I’ve had cases when eight, 10 or 12 months pass before charges are even filed. That would mean the defense has no chance to conduct its own examination of what might be key evidence,” said Bogenschutz, who has practiced in Florida since 1971.

During depositions in Melnik’s case, the medical examiner and his employees revealed that they had begun a new policy in late 2012 of destroying toxicology samples that were a year old.

Bogenschutz then filed a records request with the State Attorney’s Office and found a series of emails with Mallak, urging him to change the policy. The State Attorney’s Office offered compromises, including storing samples longer for ongoing criminal trials or notifying attorneys before samples are destroyed. In the end, Mallak agreed to one change: keeping blood samples in DUI cases for two years but destroying all others after a year.

Mallak said he was surprised that his policy caused “a shock to the system around here.” He said defense attorneys and prosecutors need to understand that the old policy was flawed, and that blood and tissue samples kept for months begin to deteriorate and cannot be accurately tested. Bacteria and mold can corrode the tissue, making samples meaningless.

‘I can’t change the laws of nature’

“I personally don’t keep things in my refrigerator for years, so you can’t expect me to keep evidence that way,” Mallak said. “I can’t change the laws of nature. I can’t stop these samples from breaking down.”

Mallak came to Broward after serving as the U.S. Armed Forces medical examiner. He oversaw 250 employees in a crime lab with a $50-million budget. He worked on high-profile cases that include the space shuttle Columbia explosion and identifying the body of Saddam Hussein after the Iraqis hanged him.

In Broward he inherited a 38-person department that had been under scrutiny for poor case management and slow turnaround rates. Shortly after he arrived, Mallak shut down his lab after discovering that employees had improperly validated drug samples, which forced a review of toxicology results in pending criminal cases. He said he has since reduced his office’s turnaround from 90 days to 10 and overhauled testing methodology to conform with industry standards.

Mallak said he also discovered there was no policy governing when evidence was destroyed. Some blood and tissue samples stored by his office dated back decades. Mold and bacteria covered a few vials.

“These samples are not like a bullet that can just sit on a shelf indefinitely,” Mallak said. “They have no evidentiary value after a long time passes.”

The rule he established covers only those toxicology samples like blood and human tissue that can erode over time. DNA and other samples that can be stored without refrigeration are kept indefinitely, Mallak said.

The policy Mallak instituted follows minimum requirements set by Florida administrative rules. It also conforms to minimum industry standards, said Dr. David Fowler, president of the National Association of Medical Examiners.

Blood and tissue samples can be kept for years if preserved in sodium fluoride. Medical examiners will often keep samples for years in ongoing cases, or when an attorney requests it, Fowler said. In Maryland, where Fowler is the state’s chief medical examiner, samples are typically kept for three years unless defense attorneys or prosecutors ask for them to be retained longer.

Broward Assistant State Attorney Brian Cavanagh

Broward Assistant State Attorney Brian Cavanagh

In Miami-Dade, the medical examiner’s office keeps such samples for five years, according to a memo on the department’s policy.

The destroyed evidence in Broward has become an issue in several criminal cases since the change, Cavanaugh said. But so far, no cases have been thrown out or lost at trial because of the policy.

When Cavanaugh learned of the change, he did an accounting of which cases might be affected. Among the destroyed evidence was blood taken from the 2012 crime scene where an 8-week-old baby died in the trunk of a car in Coral Springs. Luckily, Cavanaugh said, that evidence wasn’t pertinent. A jury in October returned a guilty verdict for the boy’s father, Janus Saintil, who is now serving a life sentence.

While the destroyed evidence wasn’t relevant in that case, Finkelstein worries that it could be in other cases. “This is not supposed to happen. People aren’t supposed to be acquitted because evidence has been destroyed,” Finkelstein said. “Even as a defense attorney, this is not what we want. We want the system to work correctly.”

In most cases, the destroyed evidence shouldn’t lead to charges being dropped or dismissed, explained Cavanaugh. But it’s an issue that could become a problem for prosecutors as defense attorneys use it to cast doubt. “It’s significant only in that it allows the defense to create an issue,” Cavanaugh said. “The question is, ultimately, is it going to be insurmountable?”

In the Melnik case, Circuit Judge Andrew Siegel has scheduled oral arguments for Aug. 5 to consider Bogenschutz’s motion to dismiss. The judge’s decision could be an indication of how the medical examiner’s policy can affect other cases.

Report: ChildNet Broward is failing, ‘urgent’ need to fix county’s child welfare system

By Dan Christensen, FloridaBulldog.org childnet

Burdened with high caseloads and mired in millions of dollars in debt, the lead agency in Broward’s child welfare system is failing.

That’s the gist of a 15-page state task force report obtained by FloridaBulldog.org about ChildNet Broward, the nonprofit that received $67 million from Florida’s Department of Children & Families (DCF) this year to provide community-based child welfare services.

Underscoring what the report called the “urgent” need for corrective action, about 80 leaders from various agencies and other community stakeholders met on June 7 to review the current system of care and begin to figure out how to fix it. The meeting and the report, however, were not publicly announced.

The state’s 11-member “Risk Pool Review Committee” began its review of ChildNet after it sought additional state funds last winter to cover a $7.6-million deficit. ChildNet’s deficit grew to $8.2 million by the time the report was submitted to DCF Secretary Mike Carroll on March 28.

“The analysis identified several factors that are placing considerable strain on Broward County’s child welfare agencies which must be addressed quickly,” Carroll said in an email announcing the June 7 meeting at the department’s Broward office at 1400 West Commercial Blvd. in Fort Lauderdale. The meeting’s goal: to “reach agreement on a comprehensive action plan,” Carroll wrote.

Carroll declined to be interviewed, but State Sen. Eleanor Sobel, D-Hollywood, said Monday that no comprehensive action plan was adopted at the meeting.

“They’re reviewing everything,” said Sobel, who chairs the Senate Committee on Children, Families and Elder Affairs. “The real problem that came into focus at this meeting was the judiciary. They don’t have enough judges to go through these cases in an expeditious and efficient manner.”

ChildNet President and CEO Emilio Benitez

ChildNet President and CEO Emilio Benitez

Broward Chief Judge Peter Weinstein, however, announced at the meeting that he would add two child dependency judges in the coming weeks, Sobel said.

Judge Hope Tieman Bristol, chair of the juvenile dependency division, did not response to repeated requests for comment.

The task force recommended ChildNet be given the extra funds, “contingent on their agreement to develop a corrective action plan,” including making sure abuse cases are appropriately entered into the Florida Safe Families Network database to improve state oversight.

Report ‘absolutely accurate’

ChildNet President/CEO Emilio Benitez, who called the task force report “absolutely accurate,” said Tuesday that Secretary Carroll approved $6.1 million, but the money has yet to be disbursed.

“It reduces the deficit significantly,” Benitez said.

The grant funds are to come from a $13 million state Risk Pool established by the Legislature to mitigate the financial risk to eligible “lead” child welfare agencies in communities around the state.

ChildNet Broward operates under a five-year contract with DCF. In its application for Risk Pool funding, ChildNet cited “staggering increases” in the number of at-risk children entering the county’s child welfare system. There were 3,601 dependent children in the system on Jan. 10, 2016 – the most since 2004 – and 1,287 more than on January 2014, ChildNet said.

“A major contributor has clearly been similarly record-setting increases in the number of children removed (from at-risk homes) by the Broward Sheriff’s Office Child Protective Investigators,” the application says. Nearly 1,400 children were removed in 2015.

Curiously, the task force reported that the removal rate in Broward, a county where the rate of child poverty is below the state average, was 7.8 per 100 children investigated last summer, compared to the statewide rate of 6.4 per 100 children investigated.

The committee, comprised of 11 child welfare experts from around the state, concluded that ChildNet’s ballooning caseloads are the result of both increased removals and fewer discharges from care, “leading to a significant increase in the number of children in out-of-home care.”

The background to those trends has been a decline in core services funds between 2010 and 2015. The result: “higher costs and declining quality,” the task force report said.

The report cited a “robust array of both governmental and private organizations” exist to address child welfare, including the Children Services Council that spends millions in tax dollars on prevention and diversion services targeted to children in the system. “But ChildNet needs to develop in-home services for unsafe children and for safety management to help alleviate some of the removals,” the report says.

Broward’s splintered child welfare system

The report was also critical of the splintered structure of Broward’s child welfare system.

“The responsibility for essential components of the system of care is spread among several different entities including the Broward Sheriff’s Office for the Child Protective Investigation function, the Office of the Attorney General for the Children’s Legal Services function and the Lead Agency (ChildNet) for child welfare functions,” the report says. “Unless there is a strong sense of community ownership of the child welfare system of care, different organizations may be accountable for part of the system but effective management of the overall system can suffer.”

Current trends “indicate that ChildNet is not on a path of longer term sustainability,” the report says. Risk Pool funding will avoid service disruptions this year, but without a “significant infusion of resources” ChildNet “is likely to experience a significant deficit next fiscal year.”

Still, Benitez was optimistic about ChildNet’s future.

“We have made a tremendous impact since the report and I think we are now heading in the right direction,” he said. “All the partners are now working together to find a solution.”

Broward County’s $18.9 million airport flip-flop and a new, secret whistleblower case

By Dan Christensen, FloridaBulldog.org 

The Broward County Commission before Tuesday's vote to pay $18.9 million to settle a dispute with airport contractor Tutor Prerini.

The Broward County Commission before Tuesday’s vote to pay $18.9 million to settle a dispute with airport contractor Tutor Prerini.

With little public discussion, the Broward County Commission has overwhelmingly approved an $18.9-million payout to airport contractor Tutor Perini to settle a bitter dispute about who was to blame for costly construction delays.

Paperwork filed in support of the deal, including the settlement itself, revealed that an unidentified whistleblower recently sued Tutor Perini in circuit court using the Broward County False Claims Ordinance. The whistleblower’s claims are not known, but sources said an unhappy subcontractor filed the complaint. Whistleblowers who help the county recover money lost to fraud or other schemes can recover a reward of up to 25 percent of the proceeds.

Tuesday’s settlement deal, approved in a 6-1 vote, marks an expensive flip-flop by the county from assertions earlier this year by then-Broward aviation department boss Kent George that, in fact, Tutor Perini owed the county more than $34 million for those delays.

George stepped down as aviation director in March, but remains on the county’s payroll until the end of the year. He negotiated the settlement approved Tuesday.

In January, FloridaBulldog.org reported that on New Year’s Eve George had a letter sent to Tutor Perini demanding those damages cover the costs of a dozen “significant … deficiencies and unresolved issues” that seriously delayed completion of the $800-million expanded south runway at Fort Lauderdale-Hollywood International Airport.

“You owe us millions of dollars and now I’m paying you millions of dollars in a settlement?” Commissioner Lois Wexler said Tuesday. “Unless there’s a real explanation as to how it morphed into something else, I’ll be a no vote today.”

County Attorney Joni Armstrong Coffey, who recommended approval of the settlement, offered a brief discussion about that. Coffey indicated the county was responsible for the delays because change orders expanding the scope of Tutor Perini’s work were approved without an appropriate expansion of work days in which to complete it.

A dissatisfied Wexler voted a lonely no.

Tutor Perini, (NYSE: TPC) has contended that the county was to blame for the construction delays. In fact, the county aviation department lost more than a dozen claims adjudicated before a “dispute avoidance panel” established at the project’s outset to resolve disagreements between the county and its runway contractors.

In recommending approval, Coffey warned the county could have as much as $80 million in liability without a settlement.

County ‘probably could win’

Nevertheless, Commissioner Dale Holness said that in private discussions with “our staff and attorneys” he’s been assured the county “probably could win” a lawsuit against the company.

“But they weren’t sure a hundred percent because we had some issues on both sides,” Holness said.

Wexler went further. She said her “lengthy briefings” with staff bore little resemblance to Tuesday’s outcome.

“When Ms. Coffey and Mr. [Michael] Kerr [deputy county attorney] came to my office, they said, ‘Don’t worry, commissioner, we’re going to recoup, we’re going to recoup,’ ” Wexler said. “Now all of a sudden something else comes forward.”

The settlement includes $6.1 million that was approved but never paid to Tutor Perini, plus an additional $12.8 million. No commissioners asked how that figure was arrived at, and county staff did not explain.

The settlement raises the “final” contract amount to $239 million. The original contract award to Tutor Perini for design-build services was $179.9 million. Change orders approved by the county raised that figure to $226.2 million.

The settlement is with the Tutor Perini Fort Lauderdale-Hollywood Joint Venture.

California-based Tutor Perini is the prime consultant for the tunnel structures that carry the expanded and elevated south runway and taxiway over U.S. 1, the Florida East Coast railroad tracks and East Perimeter Road. The venture was also responsible for related construction, including the new southbound airport exit ramp to U.S. 1.

The original contract completion date for the runway project was Feb. 22, 2014. In fact, the runway opened for air traffic in September 2014, and the project was declared “substantially complete” in January 2015.

Still, work at the airport goes on. Today, Tutor Perini is adding decorative and architectural features to the U.S. 1 tunnels – finishing work worth several million dollars. The settlement requires Tutor Perini to finish all remaining work by Aug. 31.

Friction between Tutor Perini and the county isn’t limited to the airport project.

The company is the prime contractor on the new downtown county courthouse, a project that’s a year behind schedule, but is expected to open this summer. The Sun-Sentinel reported last month that a county public works official said Tutor Perini contends the county owes it $11.3 million for extra work.

The airport and courthouse disputes also figure in the selection of a contractor to build a long-sought expansion of the Broward County Convention Center and a next-door hotel on port property. Texas-based developer Matthews Southwest Holdings was accepted for the job in April, but Matthews’ team includes Tutor Perini – a fact that did not go over well at County Hall.

Broward Health hospice contractor VITAS denies admission to dying, indigent inmate

By Dan Christensen, FloridaBulldog.org 

Publicity photo for VITAS Healthcare's inpatient hospice unit at Broward Health North

Publicity photo for VITAS Healthcare’s inpatient hospice unit at Broward Health North

A dying homeless man ordered released from jail Friday so he could be sent for hospice care at Broward Health was instead denied admission to hospice after he refused to sign a form, according to email obtained by FloridaBulldog.org.

Pablo Hernandez, a 65-year-old indigent suffering from terminal liver cancer, was back at the Broward County Jail today, his lawyer said.

Refusing to sign the form wasn’t the only apparent reason Havana-born Hernandez was denied access to hospice. In an email copied to Hernandez’s lawyer, Assistant Public Defender Lorena Mastrarrigo, Broward Sheriff’s transportation Sgt. Carl Richardt said a nurse had informed him “the onsite hospice provider VITAS (Healthcare) refused him due to him being undocumented.”

Mastrarrigo said BSO Inmate Health Manager Yusimir Arencibia told her Monday that profit was also a motive to deny hospice care to the terminally-ill Hernandez.

“She said VITAS is a for-profit company and they don’t like uninsured, undocumented people,” Mastrarrigo said.

Mastrarrigo’s boss is outspoken Broward Public Defender Howard Finkelstein.

“I am troubled with an indigent hospital contracting out some of their responsibilities and letting the private corporation decide whether to provide services, if that is what is occurring, which it seems to be,” said Finkelstein. “Is it financially or politically motivated, or both? Did (Broward Health’s) board intentionally contract it this way?”

Pablo Hernandez

Pablo Hernandez

The hospice form that Hernandez didn’t want to sign is called a DNR, or “Do Not Resuscitate,” which instructs health-care providers to do no rescue efforts if a patient stops breathing or his heart stops. VITAS, which operates the Hospice Unit at Broward Health North, requires hospice patients to sign a DNR form before they are admitted.

Mastrarrigo said Hernandez speaks little English and may not have understood the form, which he refused to sign a second time on Monday. VITAS manager Elizabeth Jerome said, however, that consent forms are in both English and Spanish.

Jerome referred a reporter to other VITAS officials, but they did not respond before deadline.

Court records show that Hernandez was arrested three weeks ago for violating the terms of his three-year probation for a felony conviction of driving after his license was permanently revoked. He was also jailed for a year.

Hernandez got into trouble last year when he walked away from Miami’s Salvation Army facility, where he’d been living with the court’s permission on March 23, 2015. He was charged with absconding and failing to report or pay various court and probation costs, but police didn’t catch up to him until last month.

Mastrarrigo saw Hernandez at Broward Health North in Pompano Beach on March 9. She described him as being in “good spirits and not in pain.” Two days later, BSO’s Arencibia wrote to say she’s received an update on Hernandez’s condition.

“He continues to decline. He was referred to hospice and hospice has accepted him,” Arencibia wrote. She also inquired as to whether there’d been any discussion regarding getting a judge to release Hernandez from jail. “Historically, hospice will not take him while he remains in custody status.”

Two hours later, Mastrarrigo wrote back. “I was just able to have Judge (Edward) Merrigan sign an order to ROR (release on own recognizance) Mr. Hernandez and to have BSO transport him to hospice based on your representation that he was referred to hospice and they have accepted him.”

But the deal fell apart Saturday with Sgt. Richardt’s email stating that VITAS had refused to admit Hernandez because he was undocumented. On Sunday, Arencibia wrote that when Hernandez “was interviewed by hospice he stated he did not want to sign the DNR form. That is a requirement for hospice!”

Broward prosecutor: BSO’s probation plan jeopardizes safety, victim’s rights

By Dan Christensen, FloridaBulldog.org 

Broward County Courthouse

Broward County Courthouse

In a challenge to judicial authority, the Broward Sheriff’s Office is again pushing a scheme that would allow BSO, not judges or state law, to determine the reporting terms for county court defendants placed on probation.

BSO’s controversial idea, intended to cut probation costs, fizzled a year ago after it became known that defendants were being allowed to report less frequently than ordered by the court. In a Nov. 10 memo to all county court judges, however, BSO resurrected the idea, saying it “will become effective January 1” if they go along.

Once again, Broward County Court Judge Ginger Lerner-Wren is blowing the whistle. In an email to colleagues and others last month, she called BSO’s idea “legally unenforceable and contrary to the law.”

Lerner-Wren has a formidable ally this go-round.

In unusual pushback against the sheriff’s office, Broward Chief Assistant State Attorney Jeff Marcus wrote a two-page letter to Chief Judge Peter Weinstein last week objecting to BSO’s proposed new “Order Placing Defendant on Probation” and warning it would jeopardize both the legal rights of victims and the safety of the community.

“The State Attorney’s Office agrees with Judge Lerner-Wren’s position in his matter,” Marcus said.

Broward County Court Judge Ginger Lerner-Wren

Broward County Court Judge Ginger Lerner-Wren

Weinstein did not respond to a request for comment.

BSO’s Department of Community Programs oversees probation. It would save money by reducing how often defendants convicted of misdemeanor offenses like driving under the influence (DUI) must appear at a local probation office.

BSO released a Nov. 30 letter sent by David Scharf, the department’s executive director, to Weinstein thanking him for facilitating an earlier meeting with County Court Administrative Judge Sharon Zeller to discuss the court’s decision to “approve” the revised probation order. No administrative order approving the change was issued, however.

Zeller could not be reached for comment.

Probation Manager Pearlie Meisel’s memo says that under the new regiment the probation division would determine the number of times a probationer must report using “a comprehensive validated risk assessment.” The assessment would then be forwarded to a judge for their signature.

“If for any reason you decide the selected supervision level is not agreeable, please signify your preference of supervision on the probation order before signing,” Meisel’s memo instructs the judges.

‘EVIDENCE-BASED DECISION MAKING’

Scharf, Meisel’s boss, explained the practice known as “dosage probation” in an interview last year. He said it is rooted in “evidence-based decision making” involving the use of “objective risk assessment” criteria to determine whether an offender is high, medium or low risk.

In the past, BSO has used that formula to determine, without court input, how many doses, or times, someone on probation must physically report to a probation officer. When Lerner-Wren chanced to spot the unapproved practice in her court last year – BSO allowed a defendant ordered to appear before a probation officer once a month to show up every two months – she signed an order banning it in her courtroom.

The matter seemed to fade away when County Court Administrative Judge Sharon Zeller expressed concern about the legality of the practice in a memo to all criminal division judges last December.

But Meisel’s memo last month stirred the pot.

On Dec. 7, after hearing from Lerner-Wren, the State Attorney’s Office joined the fray.

Noting that probation is often imposed on defendants convicted of DUI, prosecutor Marcus told Judge Weinstein, “It is our position that Florida Statute 316.193(5) mandates that the defendant be placed on “monthly reporting probation … if a defendant is placed on a level of supervision which mandates that they report every other month as proposed in the new Order of Probation, his will be in violation of the statute.”

Marcus said that prosecutors are concerned about “inadequate” levels of supervision. He said offenders allowed to report every other month will not have “the same level of drug and alcohol testing that accompanies most of our probationary sentences” and that “the safety of the community could be jeopardized.”

“Of special concern are the recidivist DUI offenders who are sentenced routinely to the most intense levels of supervision,” Marcus wrote.

Marcus said, too, his office has other concerns about the delay caused by the “comprehensive risk assessment” because the level of supervision will not be announced in open court at the time of sentencing.

“As you are aware, all conditions of probation must be announced at the time of sentencing in order to be considered enforceable,” Marcus said.

“Finally, in many instances we have victims who are present in court at the time of sentencing. If the court sentences someone to a specific level of supervision based on a statement of the victim, and then a determination is made by a probation specialist after the fact, without the benefit of knowing about the victims’ wishes, we are concerned that the victim’s rights” under state law “may be jeopardized,” he said.

Better late than never: Online access to court files arrives in South Florida

By Dan Christensen, FloridaBulldog.org clerkpage

Nearly two decades after the federal courts did it, state courts in South Florida and across the Sunshine State have begun to allow the public online access to documents contained in case files.

Unlike the federal courts, however, local court clerks in South Florida and other areas aren’t charging any fees to view, print or download millions of available pages of public records.

The Broward Court Clerk’s office was among the first to go fully online last month with free public access to electronic felony, misdemeanor, traffic, and civil court records not sealed, expunged or otherwise deemed confidential by law or court order.

“They’re available for free except for dependency, juvenile, adoptions – you know, family cases,” said Clerk Howard Forman. There is also no remote access to document images in cases governed by Florida probate rules.

For now, all users must register and log in to view the docket and document images during a 90-day pilot project. Once the state courts sign off on Broward’s system users won’t have to register and may view court records anonymously.

Miami-Dade Clerk Harvey Ruvin put civil cases only online last month. He did not respond to requests for comment.

In Miami-Dade, the county commission, not the clerk, runs the criminal record system and criminal cases are not online. “The county commission is supposed to finance their felony operation and they haven’t done it yet,” said Forman.

Palm Beach County Court Clerk Sharon Bock announced last week that a $2.6 million budget shortfall would indefinitely delay the implementation of online remote access to court records there.

What’s happening is the culmination of an effort that began in 2004 to develop technology and policies the Florida Supreme Court determined were necessary to shield sensitive personal information – like Social Security and charge card numbers – from anonymous, yet prying online eyes.

Court dockets have appeared online for more than a decade. More recently, attorneys have been required to file court documents electronically instead of on paper. New rules were adopted to require lawyers and pro se filers to identify and protect confidential information in their pleadings. A list of 20 exemptions subject to automatic redaction by the court clerk was also adopted.

A TIERED ACCESS SYSTEM

Years of study also led to the establishment of a tiered system of access to court records “to facilitate appropriate, differentiated levels” for judges, court and clerks’ office staff, “user groups with specialized credentials” like law enforcement and attorneys and the general public.

In March 2014, the Supreme Court opened the door to posting court pleadings online in an administrative order that adopted the new “access security matrix” and established the pilot program that allows clerks in Florida’s 20 judicial circuits to apply for approval of their local access systems.

Court documents in Broward undergo a thorough redaction process before they’re put online, officials said. It begins with an automatic redaction done by a special software filtering that locates, and blacks out, forbidden information like Social Security numbers. There’s also a manual review by clerks and submission to an audit that looks for statistical anomalies that might signal that exempt information wasn’t caught.

“It’s working very well,” said Ernie Nardo, the Broward clerk’s chief information officer.

The Broward clerk’s case management system, Odyssey, is provided by Texas-based Tyler Technologies. It cost more than $1 million to implement and another $435,000 in annual licensing fees, Nardo said. Another $230,000 a year goes to license redaction software from Apoka-based Computing System Innovations.

The court’s sensitive case files are not on the cloud, but remain stored locally on servers owned by the Broward clerk’s office, Nardo said.

While all new filings are coming in electronically, Broward clerks are today “back-scanning” older paper felony case files. “Those cases linger longer so we are going back to convert entire cases to electronic,” Nardo said. He said 2012 felony cases are in the process of being scanned, meaning that every case from 2013 going forward is now electronic.

There are no plans to go back and scan in other old, closed cases because the cost is prohibitive. However, the Broward clerk is thinking about providing on-demand back-scanning of cases for those willing to pay for it. Any files scanned that way would also be added to the online record.

Another project under consideration would allow individuals, for a fee, to track activity in cases by registering to receive alerts.

In Broward, the clerk’s office is also working on making its website mobile friendly.

“We are developing our website to be compliant with any phone out there. So it won’t matter what our phone is when you hit our site it would resize itself to that device,” Nardo said

Sex offender convinces appeal court to reverse Broward judge

By Dan Christensen, FloridaBulldog.org 

Fourth District Court of Appeal in West Palm Beach

Fourth District Court of Appeal in West Palm Beach

Every day, state prisoners flood Florida’s courts with appeals and pleadings about their cases that they’ve written themselves. Those pro se filings – Latin for “on his own behalf” – rarely get far.

This spring, however, an inmate sex offender serving a life sentence convinced the Fourth District Court of Appeal in West Palm Beach that a Broward judge erred when she failed to order prosecutors to explain potentially serious discrepancies about his Miranda rights warning form.

The state introduced the Miranda form as evidence at Charles D. Williams’ 1998 trial, but Williams contends the document was a fraud and that police forged his signature. For years, Williams and his family filed public records requests seeking to obtain a copy.

“After serving multiple requests to the Broward County Clerk and the State Attorney’s Office over a course of years, his brother finally obtained a copy of a Miranda waiver form,” says the unanimous order by a three-judge appeal panel. “The date on the form produced differed from the date on the form introduced at trial, and the signature on the form produced varied from the petitioner’s signature.”

The panel ordered Broward Circuit Judge Lisa Porter to require prosecutors and the clerk’s office to respond to the “factual issue of whether the form produced is the same as the form introduced at trial.” If the response doesn’t resolve the matter, Porter was instructed to “hold an evidentiary hearing.”

Imprisoned sex offender Charles D. Williams

Imprisoned sex offender Charles D. Williams

The court issued its mandate to Judge Porter on June 12 after denying a request for reconsideration by Florida Assistant Attorney General Richard Valtunas, who in previous court papers called Williams’ assertions “outlandish allegations of fraud and skullduggery.” The judge had not taken action as of Monday.

Williams, who next week turns 76, was a longtime Pompano Beach resident when Broward Sheriff’s detectives arrested him in 1996 on multiple counts of sexually battering or molesting his teenage stepdaughter. He was convicted after a three-day trial in March 1998. His conviction was upheld on appeal.

Starting in 2006, Williams and his family began filing public records requests for a copy of the Miranda waiver form presented by the state as evidence at his trial. After repeated visits and phone calls, Clerk Howard Forman’s office advised that it didn’t have the form in their file. Meanwhile, the State Attorney’s Office provided a copy, but Williams claims it wasn’t the same form the state used at trial and that the signature on it isn’t his signature.

Williams, housed at the Department of Correction’s South Florida Reception Center in Doral,  petitioned Broward Circuit civil Judge John Bowman in 2011 to compel the state to produce a “true” copy of his Miranda waiver form. He based his claim on the signature discrepancy and “trial testimony from a police officer in which the officer referred to the document as an ‘Affidavit of Conform’ and described the rights on the form differently than as written on the ‘Waiver of Counsel’ form provided by the State Attorney’s Office to his brother,” according to the appellate decision.

Bowman found Williams’ petition legally sufficient and transferred the matter to Porter in the criminal division, where it sat for three years until Porter denied it and entered an order prohibiting Williams from further pro se filings.

“Because the petition established a legally sufficient basis for relief, as determined by the civil court judge, the criminal court judge erred in denying the petition,” the appeal court’s decision says.

The tragic story of Josh Stein: A sick tortoise, an urge to help and a fatal trip through Broward’s Felony Mental Health Court

Josh Stein, a mentally troubled man of 38, died of an apparent accidental drug overdose the day after Christmas.  Broward’s elected public defender, Howard Finkelstein, says Stein’s death can be traced to anxiety and stress caused by “cattle car justice” meted out in Broward’s Felony Mental Health Court. In a letter last week to Chief Judge Peter Weinstein, Finkelstein chronicled Stein’s journey through the system after his burglary arrest in July 2013 for an ill advised taking, without permission, of a sickly red-footed tortoise that Stein wanted to nurse back to health. Finkelstein, who helped establish the specialized court to protect the mentally disabled in 2003, now says Felony Mental Health Court is a failure that must be shut down. 

Josh Stein

Josh Stein

Dear Chief Judge Weinstein,

Josh Stein is dead. A 38-year-old man has been forever silenced. His mother and father will never again see his smile, hear his laugh or hold and hug him. Their only son is lost forever. Now they are left with only pictures and memories.

He died a victim of Broward County’s Felony Mental Health Court’s callous, misguided treatment of the mentally ill. (more…)

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