Hollywood targets hundreds arrested for domestic violence, public defender cries foul

APRIL 12 – UPDATE WITH RESPONSES FROM HOLLYWOOD POLICE CHIEF. SEE ITALICIZED PARAGRAPHS BELOW.

By Dan Christensen, FloridaBulldog.org 

Hollywood Police Chief Tomas Sanchez, right, presents an award to Sgt. Rhett Cady last October recognizing his work implementing the department’s anti-domestic violence program

Hollywood police have sent letters to hundreds of residents arrested for domestic violence threatening to target them for enhanced “scrutiny and/or penalties” and “unannounced police checks on your residence.”

The letter, signed by Sgt. Rhett Cady of Hollywood’s Domestic Violence Unit, explains that the city is “taking a new focused approach in preventing future acts of domestic violence” by adding names to a watch list for so-called “C list” offenders.

“Your status as a ‘C’ list offender brings you closer to a possible prison sentence,” Cady wrote. A copy of the watch list obtained by Florida Bulldog contains 574 names.

The letters, dated the day of a suspect’s arrest, began going out last year after Hollywood implemented its “Offender Focused Domestic Violence Initiative (OFDVI).” The city’s website says it is the first program of its kind in the state and is intended “to stop the repeat cycle of violence… This style of policing is often referred to as ‘Focused Deterrence.’

Today, however, the program is drawing fire from the Broward Public Defender’s Office, which says the police department’s letter to domestic violence arrestees is “an abuse of police power.”

“There is no legal authority for the letter, thus it is nothing more than an unlawful threat of retaliation directed at individuals who were merely accused of a crime and who are entitled to a presumption of innocence in a court of law,” says an April 6 letter by Public Defender Howard Finkelstein to Hollywood Police Chief Tomas Sanchez.

Howard Finkelstein

“The letter smacks of police intimidation and threatens the illegal and unconstitutional entry of the arrestee’s home. This overreaching is offensive to civil liberty and completely ignores the law with respect to law enforcement’s authority to enter a person’s home.”

A Sanchez spokeswoman said Monday evening the chief was formulating a response to Finkelstein. The response was not ready when this story was published.

[On Wednesday, April 12, Sanchez’s office released the chief’s response letter to Finkelstein dated April 10: “As for your concerns about the presumption of innocence of offenders, I am certain your office will protect that presumption in court. As for your concerns about offenders’ civil liberties, this Department safeguards all citizens’ civil liberties. This initiative does not allow for illegal or unconstitutional searches for police action in any way.”]

Public Defender Finkelstein’s letter notes that “it is very telling” that a Hollywood police officer arrested for domestic violence in December “was not placed on the watch list and not sent the target letter. This is either evidence of favoritism and a double standard, or it is a tacit acknowledgement that the letter threatens illegal police action that would be easily recognized by a trained law enforcement officer.’’

Lt. Michael McKinney, 6-foot-4 and 280 pounds, was arrested on a misdemeanor charge of domestic battery on Dec. 28 after his wife told police he hit her twice on the head and kicked her in the rib after an argument turned physical. Officers observed swelling on the wife’s upper forehead and temple as well as redness and swelling on her upper right rib area.

Sgt. Cady arrested McKinney, a 23-year veteran, who spent a night in jail. A police report says McKinney’s wife did not “wish to pursue criminal charges.” Assistant State Attorney Stephanie Newman filed paperwork declining to prosecute on Jan. 24.

[Chief Sanchez’s letter thanks Public Defender Finkelstein “for your concern” for Lt. McKinney, who Sanchez says “was given notice of the Initiative face to face the night of the incident. He has also receive training on the Initiative in much greater depth than anyone else targeted by its focus. He has been held to a much higher standard than the average citizen even after the disposition of his case by the court system. Since the arrest the employee has been assigned to Administrative duties with no police powers as he still faces potential workplace discipline.”]

Hollywood began its “domestic violence initiative” in May 2015.

Lt. Michael McKinney

“The Hollywood Police Department has recognized a large amount of calls for police service have involved domestic related incidents,” says the city’s website. The department’s anti-domestic violence program “works to focus on repeat offenders” by “identifying the most repetitive and violent offenders and hold them accountable, while continuing to pursue justice through all of the investigative stages, including bond court, trial, sentencing and probation.”

The program classifies “domestic incident offenders” based on their “predisposition for violence. The initial domestic-related incident, along with the totality of the offender’s criminal history sets the classification in which offenders are ranked” on a list from A to D. There are 92 active offenders on the “A” list of those deemed the most violent, the website says.

“A provision of the OFDVI program is to take action BEFORE the offender re-offends by providing services and resources to offenders who receive the Hollywood Police Department’s OFDVI deterrence message,” the website says. Those resources include anger management classes, job placement, life coaching and treatment programs “available through a multitude of organizations.”

“The OFDVI deterrence message sets clear standards of expectation for City of Hollywood residents who have engaged in acts of domestic violence and is delivered by uniformed officers daily.’’ When those messages are violated, “the offender progresses into a higher category of the program gaining additional attention from officers and detectives,” the website says.

The city claims that since the program began police have seen a “26 percent (on average)” reduction in domestic-related incidents each month. Police attribute that reduction “to our police officers’ motivation in following up with offenders not initially arrested at the domestic incident – preventing further victimization of individuals, stripping the offenders of their anonymity and by making offenders accountable.”

Public Defender Finkelstein was skeptical of Hollywood’s claims, noting that crime is down across the board.

“When they say the reduction is in part because of their efforts, well maybe in part but I doubt it is statistically significant,” he said. “Checking in on victims is a good idea.  Showing care and concern.  But using threats intimidation and physical force and or presence directed toward the presumed innocent arrestee is wrong and illegal…The road to constitutional hell is always paved with good intentions.”

As some judges balk at Broward’s new high-rise courthouse, BSO has security issues

By Dan Christensen, FloridaBulldog.org 

Broward’s new 20-story courthouse tower

Broward’s juvenile delinquency judges have refused to move into the county’s new $276.4 million high-rise courthouse, while Broward Sheriff’s officials described the building as riddled with security issues, including a “serious escape risk.”

A Feb. 15 BSO internal memo obtained by Florida Bulldog lists 25 security issues or design flaws identified during a “thorough examination of the detention area” of the 20-story structure. Some might seem comical if they weren’t so serious.

For example, the report notes that light switches and thermostats for holding cells are located inside, instead of outside, the cells, giving inmates control.

BSO requested immediate corrective action to remove the switches and thermostats.

“The light switches should only be controlled by staff in the control room,” the memo says. “The temperature should only be controlled by staff in the control room.”

Further, the memo says lighting is adjusted by certain efficiency measures. Those measures “must be removed so that the cell lighting is strictly controlled by staff. Inmates in the holding cells must be visible at all times.”

Assistant County Administrator Alphonso Jefferson said juvenile courtrooms, like other courtrooms, were “built in accordance with approved design plans” signed off on by the court years ago. He nevertheless said the county is working with the sheriff’s office to make the desired fixes.d

Broward Assistant County Manager Alphonso Jefferson

“I’m aware of this and these are punch-list items,” he said. “There are punch-list items with any building, items you have that need to be addressed. We’ve had numerous walk-throughs with BSO and we’ve identified these items that are additional.”

BSO declined to comment, except to say that the memo, prepared by Captain Veronica Carroll, commander of the detention department’s Central Intake Bureau, was later updated. A request to see a copy of the updated memo was denied.

Juvenile delinquency judges say no thanks

Apparently not fixable, however, were matters of concern to enough of the county’s four juvenile delinquency judges that they decided recently to remain in or move to courtrooms in the courthouse’s modern North Tower on Southwest Third Avenue in Fort Lauderdale.

“Judge [Elijah] Williams and I went over there and it didn’t take us long to figure out that those courtrooms were not appropriate for juvenile delinquency court,” said Broward Juvenile Court Judge Carlos Rebollo.

Among other things, he said, the new juvenile courtrooms located on the tower’s ninth floor are “very small,” include no jury box where in-custody juveniles are kept while in court and have “holding cells that looked like a prison.”

“You’re dealing with juveniles and the last thing you want to do is put them in an environment in which it looks like they’re in prison,” said Rebollo.

The juvenile holding cells, which do not allow for the separation of male and female inmates, have open toilets.

“The way these things were designed was very institutionalized and the judges were very adamant that they didn’t want these kids to be placed in those holding cells,” said Chief Assistant Public Defender Gordon Weekes, whose office also opposed the new juvenile courtrooms. “They have an open toilet. You put four kids in there and if one has to use the bathroom they have to do it in front of the other three with no partition, and maybe even in front of an adult passing through.”

Fixes would be costly

Weekes said the cost to modify the juvenile facilities to make them acceptable for such work would have been great.

“It’s my understanding after speaking to the county that it would be millions of dollars to fix issues in the juvenile courtrooms,” Weekes said. The courtrooms will now apparently be repurposed.

To date, the new tower remains largely unoccupied. Those that have moved in include the clerk of courts, the state attorney, BSO and probate courts, Jefferson said. March 20 was set to be the date by which most of the judges would move in, but the date was said by two sources to have been abandoned amid an argument between the county and BSO on appropriate security staffing levels.

BSO’s memo addresses a variety of security deficiencies in the new courthouse, the most critical of which was in the sally port, the secure gateway between the jail and court. One issue cited in the report “poses a serious escape risk.” The underline is in the memo.

Other issues include “numerous blind spots” that pose life safety issues, fire sprinklers can be too easily tampered with by inmate, and “in-cell cameras are encased in cheap plastic that is easily manipulated.’’ The detention area also has no Self Contained Breathing Apparatus, a device that can provide breathable air in an emergency.

Of particular concern to Weekes was another holding cell deficiency: a handicap railing that’s “contrary to suicide prevention.”

“Most people think of a jail suicide as someone hanging from an overhead bar, but anyone can wrap a towel around their neck and lean forward. That’s just as effective. I don’t understand why they would allow that.”

Race for job of Broward chief judge takes shape; Three hopefuls so far

By David Lyons, FloridaBulldog.org 

From left to right, Broward Circuit judges Alfred Horowitz, Jack Tuter and Carlos Rodriguez

From left to right, Broward Circuit judges Alfred Horowitz, Jack Tuter and Carlos Rodriguez

A three-way race is looming among prominent circuit judges to become the next chief judge of Broward County, a largely ceremonial post that has been used as a bully pulpit for better court services and a venue for third-rail policy disputes.

Veteran Circuit Judge Peter Weinstein, who has served six years as chief, is not standing for re-election by a vote of judges in February 2017.

The announced candidates to replace him as chief of the state’s second largest circuit are Circuit Judges Alfred F. Horowitz, Carlos A. Rodriguez and Jack Tuter.

In the past, Broward chief judges have lobbied for specialty courts, for new and improved court facilities and for better file management service from the clerk of the court. Most recently, Weinstein exchanged written blows with Broward Public Defender Howard Finkelstein, who accused the court of entrapping low-income defendants in a cycle of debt and jail through the use of “convenience bail bonds.”

Replied Weinstein: “Howard can write what he wants, but that doesn’t necessarily make it so.”

Tuter declined to discuss his candidacy. Horowitz and Rodriguez did not respond to voicemails left at their chambers.

Weinstein declined to discuss the election. Three years ago, however, he named Tuter to serve as acting chief judge in his absence.

The chief judge oversees the circuit court’s budget, supervises the senior administrative staff and court administrator, and decides where the court’s judges will be assigned. The chief also establishes local rules, sets court calendars and even decides who works on weekends.

When judicial vacancies occur, the governor and local judicial nominating commissions have been known to solicit the chief judge’s opinion on who should be appointed to fill off-election-year vacancies.

Weinstein served three terms as chief

Weinstein, who served as a Florida state senator for 14 years, has served more than 18 years on the bench of the 17th Judicial Circuit, the second largest circuit court in Florida. He became a judge by gubernatorial appointment in 1998.

In 2015, Weinstein won a third two-year term as chief judge in what he described at the time as a “very hotly contested race.” He edged Horowitz 46 to 42 in the balloting by Broward’s judges. After the victory, Weinstein made it clear that the third term would be his last.

Horowitz, who is making his second consecutive run for the post, currently presides in the court’s family division. He was appointed to the circuit bench in 2000 by then-Gov. Jeb Bush after serving five years as a county court judge. Between 1986 and 1995, he was in private practice at Horowitz & Rolnick. He earned his law degree from Samford University and a Masters in Taxation from New York University. His wife, Giuseppina Miranda, is a county court judge

Rodriguez presides in the civil division. He moved to Fort Lauderdale from Cuba in 1962 at the age of 5. His family sought political asylum in 1967, and he became an American citizen. Rodriguez earned his law degree from the University of Florida. Before taking the bench, he spent three years as a Broward Assistant Public Defender and two years as a Chief Assistant Public Defender. He spent 23 years in private practice with the Fazio, Dawson firm and later operated his own firm, handling both criminal and civil cases.

Tuter is the administrative judge in the circuit’s civil division. In 2013, he served as acting chief during a short-term absence by Weinstein. In 2014, The Federal Judicial Nominating Commission interviewed Tuter for a U.S. District Court vacancy in the Southern District of Florida.

Tuter ascended to the Broward bench in 2005 when he was appointed to fill a vacancy by then-Gov. Jeb Bush. He has been elected twice to full six-year terms. His current term expires in 2021. Before becoming a judge, he was in private practice with Conrad & Scherer, and with Stephens, Lynn, Klein, Lacava, Hoffman & Puya. Prior to that, he was a managing attorney with American International Group. Tutor earned his law degree from Memphis State University.

Few judges have occupied the chief judge post over the last two and a half decades.

Weinstein’s immediate predecessor, Circuit Judge Victor Tobin, left the bench in 2011 after a four-year stint as chief judge. During his term as chief, Tobin criticized Clerk of Courts Howard Forman over the management of courthouse paperwork.

Tobin was an early promoter of constructing a new main courthouse in downtown Fort Lauderdale to replace a building notorious for water leaks that saturated files, generated mold and fouled the air. A tower building eventually did rise, at cost of $262 million, and it recently received a certificate of occupancy from the city. But the county says it’s not ready to open.

After leaving the court, Tobin entered private practice with the foreclosure law firm of Marshall C. Watson to help it improve its “best practices.” The firm was among several from around Florida that drew scrutiny from the State Attorney General’s Office over its handling of foreclosure case paperwork.

Tobin was preceded by the longest tenured holder of the chief judge’s office, Dale Ross, who retired from the bench in early September after 35 years as a judge.

Ross held the chief judge’s post from 1990 until 2007, a stretch that saw him embroiled in a number of controversies. Defense lawyers – most notably the public defender Howard Finkelstein — called him insensitive to the indigent. An appellate court called him pro-prosecution. Many lawyers found him to be brusque. And for years, he refused to speak with reporters from the Daily Business Review, the 17th Judicial Circuit’s official court newspaper.

Still, Ross was credited with several innovations that occurred on his watch: the establishment of a Drug Court, a Mental Health Court and a court for domestic violence victims.

Ross left the bench with two years remaining on his judicial term. The 17th Circuit Judicial Nominating Commission has sent a short list of candidates to Gov. Rick Scott to fill the vacancy by appointment.

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.

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.

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!”

Ft. Lauderdale police snooped on investigator helping FBI probe police corruption, suit says

By Dan Christensen, FloridaBulldog.org 

Allen Smith, left, chief investigator for the Broward Public Defender's Offfice, with Public Defender Howard Finkelstein

Allen Smith, left, chief investigator for the Broward Public Defender’s Offfice, with Public Defender Howard Finkelstein

The chief investigator for the Broward Public Defender’s Office sued Fort Lauderdale last week alleging that a city policeman impermissibly obtained his driver’s license records while he was helping the FBI investigate police corruption in the city.

The federal civil action is the second since September to accuse police in Broward of using their otherwise legitimate access to a confidential law enforcement database to commit privacy violations against members of the Public Defender’s Office.

The incidents spurred Broward Public Defender Howard Finkelstein to ask the Florida Department of Motor Vehicles, which runs the database, to find out whether the license information of any other staff attorneys, investigators or administrators has been improperly checked. The DMV has not yet responded.

“We’re concerned,” said Finkelstein. “Clearly, the police had no legitimate reason to do this.”

Last week’s lawsuit was filed by Allen Smith, a 26-year veteran of the Fort Lauderdale Police Department who joined the Public Defender’s Office as an investigator in 1997. It alleges that in 2011, while Smith was assisting federal agents in their corruption probe, the FBI put his name on a watch list to be notified if his name was run through any government databases.

On Nov. 29, 2011, the FBI notified Smith that Fort Lauderdale Officer James Wood had accessed his records through the DMV’s Driver and Vehicle Information Database.

“Plaintiff was later informed that his driver’s license photograph was printed and used as a target on a dart board in the Fort Lauderdale police station,” says the nine-page complaint.

Smith, who the lawsuit says has never been arrested or stopped and ticketed while driving in the city, was made to “feel at risk as if he is subject to law enforcement scrutiny as a result of his work on police corruption investigations.”

Smith reported the matter to the State Attorney’s Office. In June 2012, prosecutor Stefanie Newman declined to prosecute. Her close-out memo says that while there was evidence that Wood exceeded his authority by obtaining Smith’s records for “personal reasons,” there “is no indication he disseminated that information in violation” of criminal statutes.

The department’s Internal Affairs division also cleared Wood, a decision later accepted without much probing by Fort Lauderdale’s Citizens Police Review Board, a body staffed by city Internal Affairs detectives and governed by a nine-member board that includes three city officers.

Officer Wood, who is not a named defendant in Smith’s lawsuit, did not respond to a request for comment passed through the department’s media relations office. The City Attorney’s Office also did not return a phone call seeking comment.

In separate interviews, both Finkelstein and Smith said the FBI approached the Public Defender’s Office in 2011 for assistance as the bureau was establishing an anti-corruption unit in Broward.

“We were asked by them to furnish information we had in our files,” said Smith. “Knowing police officers the way I do, I told them that if it got out I was working with the FBI, my name and personal identification information would be checked so I asked to be put on an alert list. Two weeks later was when it was run.”

Smith said he ultimately gave the FBI “half a box full of stuff” regarding incidents of apparent police corruption in Broward.

What did the FBI do with that information? What is the status and scope of the FBI’s previously unreported police corruption investigation?

Smith doesn’t know. “You know how the feds are. You feed them, but they don’t give you any snacks in return,” he said.

FBI Special Agent Richard Stout, who met with Finkelstein and Smith, did not respond to a detailed voicemail message requesting comment.

Smith’s complaint, assigned to U.S. District Judge James Cohn, contends that the city violated the federal Driver’s Privacy Protection Act (DPPA), passed in response to the 1989 murder of television actress Rebecca Schaeffer by a crazed fan who obtained her address from the California Department of Motor Vehicles. It asserts that police obtained Smith’s records “without any permissible purpose for doing so.”

The suit seeks a declaration that the city broke federal law regarding the disclosure of personal information, and an order prohibiting the city from future violations. Also sought: liquidated damages of $2,500 per violation and unspecified punitive damages.

Assistant Public Defender Molly Caroline McCrae filed a class-action lawsuit citing the Driver’s Privacy Protection Act against both Fort Lauderdale and the Broward Sheriff’s Office this fall. She has the same lawyers that Smith does, Paul Kunz of Miami and Michael L. Greenwald of Boca Raton.

McCrae has been a public defender since 2009, handling homicide and other cases. According to her complaint, she has never been arrested or stopped while driving and has no reason to believe she is the focus of any criminal investigation.

However, after becoming concerned that her motor vehicle records may have been inappropriately accessed, McCrae asked the DMV to check. She got back a list showing that three law enforcement officers from Fort Lauderdale and BSO obtained her records four times in 2011 and 2012. The suit identifies those cases and policemen as:

  • Fort Lauderdale Officer Ethan Hodge obtained McCrae’s records on Sept. 17, 2011, ten days after she subpoenaed him to appear for a deposition in a third-degree felony case in which she was representing the defendant.
  • Broward Sheriff’s Deputy Ronald Cusumano obtained McCrae’s records on Nov. 3, 2011. At the time, Cusumano was listed as a witness in another third-degree felony case in which McCrae was the defense lawyer.
  • Broward Sheriff’s Deputy Anthony Lucca got McCrae’s motor vehicle records twice on Aug. 24, 2012.

The police actions to obtain her motor vehicle records “in violation of the DPPA” made McCrae, like Smith, “feel at risk and as if she is subject to law enforcement scrutiny as a result of her work as a public defender.”

Citing “repeated efforts” of police to improperly access McCrae’s motor vehicle records, the lawsuit contends that city officers and county deputies “routinely obtain private motor vehicle records of Broward County public defenders, without consent and without a permissible purpose for doing so.”

The proposed class in McCrae’s lawsuit: all current and former employees of the Public Defender’s Office whose motor vehicle records were obtained from Sept. 11, 2011 through Sept. 11, 2015 by an officer or deputy who got a subpoena or notice to testify.

Neither the Fort Lauderdale Police nor the Broward Sheriff’s Office responded to requests for comment about McCrae’s case.

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…)

Broward’s criminal justice system failing mentally ill, too costly

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

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

Editors Note:
Last month, BrowardBulldog.org  published the story of Broward’s “Forgotten Soldier” – a mentally ill ex-Marine in his late fifties whose journey through the county’s long broken mental health system was marred by illegal confinement and a lack of appropriate care.

The compelling story of the Forgotten Soldier was written by Owen McNamee and Douglas Brawley, two assistant public defenders who represent him. Last week, their boss, elected Broward Public Defender wrote to Broward Chief Judge Peter Weinstein to compare the treatment of the mentally ill by the criminal justice systems of Broward and Miami-Dade. Finkelstein concluded that Broward’s mental health system is backwards, cruel and unnecessarily costly.

“We need to get back on track and Miami-Dade has provided a successful model to follow,” Finkelstein said. Here is Finkelstein’s November 19 letter to Weinstein: (more…)

Broward PD Finkelstein says bond court judge Hurley must go; Chief judge says no

By Dan Christensen, BrowardBulldog.org 

Broward County Court Judge John "Jay" Hurley Photo: NBC6 Miami

Broward County Court Judge John “Jay” Hurley Photo: NBC6 Miami

John “Jay” Hurley, a Broward County judge who’s gained a measure of online celebrity for his brand of televised justice, will keep his post in bond court despite a call for his removal by Broward Public Defender Howard Finkelstein.

Finkelstein complained to Chief Judge Peter M. Weinstein last week in a letter that Hurley should be booted out of magistrate court for “expressing his contempt for the homeless and members of my office.”

Saying Hurley “has crossed the line,” Finkelstein asked Weinstein to transfer him in a letter recounting five incidents from October 7-15. DVD recordings that Finkelstein said depict “Judge Hurley’s rash and troubling behavior” accompanied the four-page letter.

“Each DVD shows Judge Hurley over-reacting, abusing his judicial authority and acting in a manner unbecoming a judicial officer,” Finkelstein wrote. “His behavior is clearly intended to bully and intimidate the attorneys and prevent them from effectively representing detainees.”

But in a Sunday telephone interview, Weinstein rejected Finkelstein’s request.

“Jay Hurley is doing a fine job. He’s a good judge. It’s a tough assignment and there are all kinds of issues, but there are no plans for him to move,” said Weinstein, who has served as chief judge since 2011.

Specifically, Finkelstein accused Hurley of chastising one public defender, threatening two others with contempt and twice having Chief Assistant Public Defender Nadine Girault Levy thrown out of court for seeking to assist homeless persons charged with violating municipal ordinances.

“On one occasion he actually pressed the panic button to stop her from making legal argument,” Finkelstein told Weinstein. “In an attempt to humiliate Girault Levy, Judge Hurley then ordered her to remain in the courtroom until deputies arrive[d] so she could be escorted from the courtroom by armed deputies.”

Hurley declined comment Friday through his secretary.

The web site CourtChatter.tv streams live video from Broward’s bond court and other locations. In June, Miami’s NBC 6 reported that Hurley has a daily following “on computer screens across the nation.” Site owner Cathy Russon told the station, “Judge Hurley popped into our chat room the other night, and oh my God, it’s like a celebrity that is better than George Clooney.”

Finkelstein, widely known locally as TV legal advice maven “Help Me Howard,” said the judge’s actions followed challenges by public defenders to Hurley’s “refusal to appoint counsel to homeless persons” charged with violating city ordinances.

Florida’s court operations are funded by the state, except for criminal violations of city ordinances. If a police officer arrests an indigent for a municipal infraction, the city must pay for a defense lawyer.

But city paid defense lawyers, like city prosecutors, typically don’t appear at bond hearings due to cost considerations. They only show up after the case proceeds to court.

Public defenders are state-funded and do not handle municipal cases. Yet they are always present at magistrate hearings and are permitted by law to counsel indigent defendants and ensure they get the rights to which they are entitled.

And that’s the rub. Indigents accused of minor city violations are, in what Finkelstein said in an interview is Hurley’s encouragement; often plead guilty in exchange for a sentence of a few days or time served.

“He is more focused on quickly moving through the docket than ensuring that defendants understand the process,” Finkelstein said in his letter.

Hurley’s refusal to appoint a lawyer to defend homeless persons arrested for municipal violations is allegedly personal.

In his letter, Finkelstein told Chief Judge Weinstein that at an Oct. 14 hearing Hurley went into a 10 minute “impromptu tirade” in which he “interjected his personal feelings into the proceedings and admitted that his wife and family had been approached by the homeless while in their car in traffic. He attempted to minimize his comments by characterizing them as ‘venting’ and repeatedly emphasized his compassion for homeless people while he continued to complain about being harassed by the homeless.”

Finkelstein also cited Hurley’s handling of defendant Gregory Williams at an Oct. 8 bond hearing. Via video proceedings, Williams told the judge that he was deaf and did not use sign language, but did read lips.

“Judge Hurley completely ignored (Chief Assistant PD) Girault Levy’s request to appoint counsel to Williams and to transport Williams to the courtroom so he could read the court’s lips and understand the hearing,” Finkelstein wrote.

Instead, Hurley accepted a no contest plea from Williams over video.

“Judge Hurley relied on a detention deputy to “translate.” It is apparent that Williams did not understand what was said and only wished to be released from custody, Finkelstein told the chief judge. “Judge Hurley denied Williams due process of law and failed to accommodate his disability in order to expedite and extricate a plea.”

Weinstein, while declaring his support for Hurley, acknowledged the court has “issues with how we deal with municipal ordinance violations” and said he’s taking steps to address them.

“We are in the process of working on a new administrative order to make things a lot clearer,” Weinstein said. He said the changes should be implemented by the end of the year.

Page 1 of 212»

Newsletter

Notify me by email when new stories are published.

Bulldog Archives