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.

Lawsuit: Broward Sheriff Scott Israel has tolerated and covered-up the illegal use of force

By Dan Christensen, FloridaBulldog.org 

The late Steven Jerold Thompson, left, and suspended BSO Deputy Gerald Wengert

The late Steven Jerold Thompson, left, and suspended BSO Deputy Gerald Wengert

The family of a 26-year-old black man shot and killed by a Broward Sheriff’s deputy has sued the deputy and Sheriff Scott Israel, alleging wrongful death, serious and repeated failures of police oversight, and cover-up.

Steven Jerold Thompson died shortly after midnight on June 6, 2014 – less than two hours after being shot nine times at a Lauderhill apartment building by Deputy Gerald Wengert, a one-time police reality TV star with a history of violent encounters.

“There existed…a de facto policy by defendant Israel of covering up police misconduct by failing to properly investigate alleged misconduct, and/or by conducting investigations that were intentionally deficient,” says the 32-page complaint filed by veteran Fort Lauderdale civil rights lawyer Barbara Heyer.

Further, the complaint says, BSO covered up misconduct “by listing the problem investigations as ‘ongoing’ long after any investigation had ceased, thereby attempting to insulate” BSO from public scrutiny. Florida’s public records law allows police to keep secret information about cases under active investigation.

“This de facto policy enabled some deputy sheriffs to falsify reports, give false testimony, and create and/or destroy evidence, including but not limited to throw down firearms, in order to justify their misconduct,’’ the complaint says.

The lawsuit, pending in U.S. District Court in Miami, comes amid a grueling national debate about killings involving the police and racial unrest. It includes the allegation that Broward’s elected sheriff has “tolerated and caused a pattern and practice of unjustified, unreasonable and illegal use of force” at BSO and that offending deputies were not prosecuted, disciplined or retrained. Some incidents were “covered up with official claims that their acts were justified and proper,” the lawsuit says.

The sheriff’s attorney, Daniel Losey, filed court papers last week that denied any wrongdoing, asserted that BSO’s use of force was necessary and that Thompson’s own conduct was the sole cause of his injuries.

A sheriff’s spokeswoman said BSO makes “it a practice not to comment on pending litigation.”

Wengert has been on suspension with pay since June 12, 2015 regarding an active investigation into the beating of a suspect. BSO declined to facilitate an interview, and Wengert could not be reached for comment.

An awkward time for Israel

The complaint arrives at an awkward time for Sheriff Israel. He is seeking re-election to a second term and his campaign has portrayed him as a sensitive, reform-minded sheriff working “to bring transparency and accountability” to BSO.

Wengert, who turns 38 on July 26, was hired in 2004 when BSO merged with the Cooper City Police Department. He did not, however, undergo a background investigation, psychological evaluation, drug testing or a polygraph examination as required by BSO policy, the lawsuit says.

Gerald Wengert in a publicity photo for "Unleashed: K-9 Broward County"

Gerald Wengert in a publicity photo for “Unleashed: K-9 Broward County”

From the day he was hired until the day he shot Thompson dead, Deputy Wengert had “73 documented use of force incidents, and ten documented complaints, including three shootings,” the lawsuit says, while noting Wengert was never disciplined for any of those incidents. (Wengert, who starred in TLC/ Discovery Channel’s “Unleashed: K-9 Broward County” in 2011, was criminally charged in 2012 with battery, official misconduct and falsifying records involving the beating of Mark Visconti, but was found not guilty in April 2013.)

Local news accounts at the time, relying on information supplied by BSO, described Thompson as a convicted felon and a robbery suspect when he was killed in a “gunfight” with police.

The complaint paints a much different picture of what happened.

The sequence of events that led to Thompson’s death began after K-9 deputies Wengert, Todd Yoder and Emanuel Koutsofios were dispatched to a suspected armed robbery at a Lauderhill condominium. Two cell phones had been stolen, and tracking located one of them four miles away at the Cypress Grove apartments in the 4300 block of NW 18th Ave. The suspects were described as two black men, one heavyset and dressed all in black and the other tall, thin and carrying a gun. Neither was said to have distinguishing features like scars or facial hair, the complaint says.

Lauderhill officers established a perimeter before the deputies arrived. After searching without their dogs, a tracking system “ping” revealed the phone had moved to the center of a parking lot on the south side of the complex, the complaint says.

Walking toward the parking lot at about 11:16 p.m., Wengert, a white man, spotted Thompson walking out of a building and toward the parking lot. Thompson, who had a beard, moustache and tattoos, was leaving a friend’s apartment, but when he saw the deputies he turned to go back to the building, the complaint says.

“Despite the fact that Thompson did not fit the description of the assailant provided by dispatch, and the fact that [he] was exiting the building when the iPhone was already in the parking lot where other people were standing,” Wengert began pursuing Thompson and “immediately drew his firearm and began shooting,” according to the complaint.

The BSO version is that Wengert fired after a fleeing Thompson shot first at him.

“He’s shooting at me”

Thompson, whose back was turned from Wengert, was hit by a bullet traveling from back to front that fractured his thigh bone and caused him to fall forward. Residents reported hearing Thompson scream, “Help…help, he’s shooting at me! I’m shot!”

“Although Thompson posed no risk of harm to defendant Wengert or anyone else, defendant Wengert continued firing at Thompson’s fallen body, hitting him eight more times,” the complaint says. In all, Wengert “discharged 25 rounds, which required that he reload his gun.”

Deputy Yoder called fire rescue at 11:18 p.m. Paramedics arrived in five minutes, but didn’t see Thompson for another 10 minutes because Wengert had instructed other deputies not to let them in right away until they made “sure it was safe in case a second suspect was there.”

During the delay, Wengert went to his car. The complaint indicates he retrieved a 9mm Luger Diamondback DB 9 pistol, planted it in the corridor about 50 feet from Thompson’s body and then “falsely claimed that Thompson had fired twice at him.”

Thompson was pronounced dead at Broward Health Medical Center at 12:57 a.m. During the confusion, the complaint says, the “actual suspect” with the stolen iPhone walked out of the front gate at the apartment complex.

What followed was an “incompetent” BSO investigation that if done correctly, would have shown that “Thompson had no involvement in the armed burglary, that he did not have a firearm, and that he did not shoot” at Wenger, the lawsuit says.

The complaint contends BSO allegedly relied “wholly” on Wengert’s version of events before deciding it was “justifiable homicide.” Evidence that didn’t support Wenger’s story “was either not addressed and/or ignored by defendant Israel.”

According to the complaint, Wengert’s sworn statement wasn’t taken until a week after the shooting. “It was contradicted by the physical evidence and the inconsistent statements of the other deputy sheriffs at the scene,” the complaint says. “Israel’s investigation accepted Wengert’s lies as fact, and then tailored the findings of the investigation to comport with Wengert’s false statements.”

Basic tests not done?

The complaint accuses BSO of failing to conduct “the most rudimentary and obvious evidentiary tests such as gunshot residue tests, fingerprint and DNA analysis which would have determined that Wengert gunned down an unarmed man.

Specifically, the complaint notes that while the dead man’s “hands had allegedly been bagged and swabbed” by the crimescene detective, the test kit for gunshot residue was never actually tested. Such a test would have shown whether Thompson recently had fired a weapon.

Likewise, no blood or Thompson’s fingerprints were found on the recovered pistol. The dead man’s epithelial DNA was found on the weapon, but the complaint says it was in a way “consistent with the Luger Diamondback being swiped across his hand or body as he lay dying.”

No DNA or fingerprint comparison was made to determine whether Wengert or anyone else had handled the gun, the complaint says.

At the time of the shooting, the complaint says, Wengert was “unfit” to be a deputy due to his “known history of violence.” Sheriff Israel knew or should have known that, yet despite Wengert’s conduct – and his “large physique” – he was never tested for steroid use.

“It is common knowledge that steroid use increases a person’s aggressiveness and can lead to violence,” the complaint says.

Even so, BSO does not test its deputies for steroid use, the lawsuit says.

BSO spokeswoman Veda Coleman-Wright confirmed that BSO does not test its deputies for steroids.

“Random drug tests are currently conducted once every quarter,” she said. “A 10-panel drug test is administered in accordance with our policy for pre-employment and random drug tests. Steroids are not included in the 10-panel drug test. However, upon reasonable suspicion, supervisors can order testing for steroids.”

The complaint also contends that BSO has had an “ongoing” investigation of steroid abuses by some deputies since 2008.

Asked about that probe, which involved as many as 26 deputies, BSO released a May 2011 memo by Internal Affairs Lt. Gregory S. Gordon that says IA merely “monitored” two separate federal investigations by the U.S. Food and Drug Administration that ended with no criminal charges against any deputies.

The memo says that instead of investigating to determine whether any BSO policies were violated by the deputies, all of Internal Affairs’ steroid cases were “reclassified to preliminary investigative inquiries…closed and marked ‘confidential.'”

The case has been assigned to U.S. District Court Judge Marcia Cooke.

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 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!”

BSO offers answers about El Sanadi’s suicide, but even family can’t explain why

By Dan Christensen and Buddy Nevins, FloridaBulldog.org 

Broward Health Chief Executive Dr. Nabil El Sanadi used a Smith & Wesson .38 revolver like this to kill himself on January 23, police say.

Broward Health Chief Executive Dr. Nabil El Sanadi used a Smith & Wesson .38 revolver like this to kill himself on January 23, police say.

Last month’s shocking death by gunshot of Broward Health Chief Executive Dr. Nabil El Sanadi is now officially classified as a suicide, but why El Sanadi killed himself remains a mystery that even his family can’t explain.

In response to a public records request by FloridaBulldog.org, the Broward Sheriff’s Office Wednesday released a Homicide Unit report with fresh detail about El Sanadi’s Jan. 23 death at the Sea Ranch Club condominium in Lauderdale-By-the-Sea.

While authorities previously have said El Sanadi committed suicide, they haven’t until now explained why they believe that’s true. The report lays out for the first time answers to lingering public questions about exactly what happened, dispels a persistent rumor of a second shot, and offers one tantalizing new detail about the case.

In sworn interviews with BSO crime scene detectives on that grim Saturday evening, El Sanadi’s wife, Lori, and his father-in-law, Lloyd Freilinger, 78, said that while El Sanadi had recently returned home following heart bypass surgery he “made no statements or comments indicating that he was depressed or intended to harm himself.”

“Lori El Sanadi stated that the victim had not been sleeping well since his surgery and was feeling frustrated with his recovery,” the report says. “She stated that her husband had been stressed about missing work due to the surgery and believed it may jeopardize his position if it was considered a weakness.

“Lori El Sanadi stated that there were many political issues that seemed to cause her husband stress, but nothing that he ever spoke about that would indicate suicidal intent,” the report dated Feb. 23 says.

El Sanadi’s death sent a jolt through Broward’s medical community. Another shock came the day of his funeral when, without explanation, Florida’s chief inspector general, notified Broward Health that with Gov. Rick Scott’s full support she would review every contract the troubled hospital district has awarded since July 1, 2012.

More unsettling news followed early this month about a joint FBI and Fort Lauderdale federal grand jury investigation into alleged corruption in Broward Health’s procurement department, shaking the taxpayer-supported public hospital system to its core.

El Sanadi’s sudden death just 14 months into his tenure as boss of the North Broward Hospital District was, in its immediate aftermath, a puzzle with many missing pieces. Today, it’s still a puzzle, yet is also the backdrop for Broward Health’s burgeoning scandal.

The report shows that BSO detectives looked for the missing pieces of the puzzle.

The last person to see El Sanadi alive

Freilinger, the last person to see El Sanadi alive, told them that about nine days earlier El Sanadi went to the hospital after suffering indigestion and was diagnosed with “serious cardiac issues.” El Sanadi underwent bypass surgery on Jan. 16, and spent five days in the hospital before being released on Thursday, Jan. 21 with a monitoring system and a home health care nurse. That was two days before his death.

Freilinger, who lives in Cedar Rapids, Iowa, told detectives that El Sanadi took his surgery very hard because he’d not been ill much in his life. On the morning El Sanadi killed himself a monitor he was using alerted to indicate his blood pressure was too high. El Sanadi took medicine, his blood pressure returned to an acceptable level, yet he “seemed to be very upset and disappointed” and restless, Freilinger said.

Lori and Nabil El Sanadi at last May's Third Annual Broward Health Ball

Lori and Nabil El Sanadi at last May’s Third Annual Broward Health Ball

Lori El Sanadi was out grocery shopping that Saturday afternoon and Freilinger recalled watching El Sanadi pace around the residence.

“El Sanadi eventually asked Freilinger if he wanted to walk with him downstairs to check his mailbox,” the report says. Freilinger asked to bring the dog as El Sanadi often liked to do, but El Sanadi said to leave the dog in the residence.

Downstairs, El Sanadi, 60, retrieved the mail and handed it to Freilinger before saying he needed to use the lobby restroom. Freilinger, who knew El Sanadi owned handguns but did not see him carrying one then, waited outside and saw no one else enter or exit the restroom while El Sanadi was inside, the report by BSO Detective Zack Scott says.

“A short time later, Freilinger heard a noise coming from inside the restroom that he described as sounding like a door slamming,” the report says. The elderly man went quickly inside and found El Sanadi lying on his left side on the floor with his head toward the restroom entrance.

“Freilinger stated that he observed blood surrounding El Sandi and initially thought that he had fallen against the restroom counter causing his chest sutures to open,” the report by BSO Detective Zack Scott says.

Freilinger ran to the security desk where a guard called 911. He then ran back to the restroom and tried to rouse El Sanadi, rolled him on his back and attempted CPR rescue breathing.

The report does not say when 911 was called, but does say police and paramedics were dispatched at 3:40 p.m. in reference to a person who had fallen. Arriving paramedics saw what appeared to be a single gunshot wound to the chest. They cut away El Sanadi’s clothing and exposed a rectangular, bloodstained bandage just below his sternum where post-surgery drains had been placed. No other trauma was found.

.38 found in El Sanadi’s pants pocket

Paramedics also “noticed what appeared to be a handgun protruding from the right front pocket” of El Sanadi’s black sweatpants. The weapon was later determined to be El Sanadi’s Smith & Wesson Model 642 .38 caliber revolver, loaded with the maximum five cartridges. Only one bullet, from the cartridge beneath the hammer, had been fired.

The paramedics pronounced El Sanadi dead at 3:59 p.m.

Broward Medical Examiner Dr. Craig Mallak made a physical examination of the body on scene and agreed with detectives “the physical evidence was consistent with a self-inflicted gunshot wound to the chest.” Mallak ruled the manner of death was “suicide,” the report says.

Broward Medical Examiner Dr. Craig Mallak

Broward Medical Examiner Dr. Craig Mallak

Mallak also offered an explanation for why El Sanadi’s gun was found in the pants pocket of his corpse.

“He stated that although the gunshot wound to the heart area was a lethal wound, the victim would still be responsive for a short period of time before blood loss would cause him to be incapacitated,” the report says. “This would mean that El Sanadi would still be conscious long enough to place the handgun into his pocket after shooting himself before collapsing.”

Detectives looked at the crime scene for signs of foul play. They noted the lobby restroom where El Sanadi was found has no windows or other points of entry besides the door. Further, they reviewed video surveillance of the lobby restroom area that showed El Sanadi and Freiling entering the lobbying, going to the mailbox alcove and then El Sanadi entering the restroom, alone.

“Freilinger can be seen standing in the hallway and using the water fountain. No other individuals are seen in the restroom area,” the report says. A minute and 21 seconds later, “Freilinger can be seen turning suddenly towards the restroom and then he enters. No other individuals are seen in the restroom area.”

The video goes on for another eight minutes. “At no point during any of the recorded footage does anyone exit or enter the restroom except for the victim, (the unidentified security guard), and Freilinger,” the report says.

Detectives also searched El Sanadi’s residence for a note or other clues that might show why he did it. In his bedroom closet they found “a large assortment of firearms and ammunition” and an empty holster “that appeared to belong to the revolver found in the victim’s possession at the time of his death.”

El Sanadi, who held a valid concealed weapons permit at the time of his death, purchased the gun in 2010, the report says. The name of the person who sold the gun to El Sanadi, as well as another individual in the ownership chain that began in 2006 when the weapon was first sold by a now defunct firearms business in Delray Beach, were blanked out before the report was released.

The detectives likewise conducted a “cursory search” of El Sanadi’s laptop, finding “no motive for suicide.” Detective Scott did a similar light search of El Sanadi’s two cellphones, one personal and the other “used primarily for issues involving Broward Heath.”

“I reviewed the victim’s communications on the days leading up to his death and the morning of, but found nothing indicating his intent to commit suicide,” the report says. Detectives intended to return the phones to Lori El Sanadi later, Scott wrote.

Horrific police frame-ups that Broward State Attorney Michael Satz won’t investigate

By Dan Christensen, Florida Bulldog.org 

Jerry Frank Townsend

Jerry Frank Townsend

Last week’s manslaughter indictment of Broward County deputy sheriff Peter Peraza for the 2013 killing of Jermaine McBean marks a watershed in the tenure of Broward State Attorney Michael Satz – the first time in 36 years his office is prosecuting a police officer in a fatal police shooting.

The indictment also serves as a reminder of unresolved injustices at the hands of other Broward police officers.

Jerry Frank Townsend spent 22 years in prison for a string of sex murders he did not commit. Satz’s office put Townsend away in 1980 using the testimony of BSO homicide detectives who framed him, court records show. Townsend was cleared by DNA testing and freed from prison in 2001.

What happened to Townsend is strikingly similar to what happened to Anthony Caravella, another mentally challenged Broward man who spent 25 years in prison for murder before DNA testing led to his release in September 2009. A federal civil jury later found that two Miramar police officers had coerced a 15-year-old Caravella into confessing and withheld evidence that would have cleared him.

Neither State Attorney Satz nor the police investigated the police officers involved in those miscarriages of justice.

What happened to Townsend was the focus of the Florida Bulldog’s first story published on October 29, 2009. The story, with updates, follows:

ANATOMY OF A FRAME-UP

Once upon a time Jerry Frank Townsend was South Florida’s deadliest serial killer and rapist.

Broward Sheriff’s Office and Miami Police Department homicide detectives said it was so. Townsend, a grown man with the mental capacity of a child, confessed to nearly two dozen sex murders, they said.

Convicted of six brutal murders and a rape in 1980, Townsend was sent to prison for life. He remained behind bars for 22 years, until he was exonerated by DNA tests that didn’t exist when he was arrested.

The police frame-up of Townsend continues to haunt both BSO and county taxpayers. The Sun-Sentinel reported last month [September 2009] that BSO agreed to pay $2 million over the next five years to settle a Broward civil rights lawsuit brought on Townsend’s behalf. Miami paid $2.2 million in 2008 to end a similar Townsend suit filed in federal court. The public spent at least $1 million more on defense lawyers for the officers who were involved.

Broward State Attorney Mike Satz

Broward State Attorney Mike Satz

Broward State Attorney Michael Satz, once quick to prosecute Townsend on scant evidence, moved to set aside Townsend’s convictions after the DNA tests cleared him, but conducted no criminal investigation of the police whose testimony put Townsend in prison. Satz spokesman Ron Ishoy said Wednesday that prosecutors reviewed “the entire Townsend case even before the DNA testing” but “did not uncover any evidence to suggest” a frame-up.

Had an actual investigation been made, however, Satz would have found a disturbing record replete with clear and convincing evidence of specific crimes by BSO detectives and other officers, including perjury and the falsification of police reports.

Broward court records, including the lawsuit and the original trial and hearing transcripts, lay out in chilling detail how multiple murder charges were apparently trumped up against Townsend. The irrefutable DNA evidence that exonerated him implicates the detectives.

DETECTIVES IMPLICATED, NO INVESTIGATION

The Broward case against Townsend was driven by two BSO detectives, Mark Schlein and Anthony Fantigrassi. According to the lawsuit, they pinned the murders on the weak-minded Townsend to advance their careers.

Former BSO homicide detectives Tony Fantigrassi, left, and Mark Schlein

Former BSO homicide detectives Tony Fantigrassi, left, and Mark Schlein

In Florida, there is no statute of limitations on perjury in an official proceeding that relates to the prosecution of a capital felony. But like Satz, BSO did not investigate what its detectives did to Townsend.

Indeed, in 2001, then-Sheriff Ken Jenne promoted Fantigrassi from captain to major as the Townsend case was falling apart.

“They weren’t interested,” said Townsend’s Fort Lauderdale attorney, Barbara Heyer.

Fantigrassi retired as head of BSO’s Criminal Investigations Unit in 2005. Schlein, an attorney, is a lieutenant colonel in charge of insurance fraud investigations for the Florida Department of Financial Regulation. [In 2015, Schlein is an attorney in Washington, D.C.]

Upon Townsend’s release in June 2001, media attention focused on the four days of nearly non-stop interrogation he endured as detectives allegedly coached and rehearsed him into falsely confessing to crimes he did not commit. The Miami Herald and Sun Sentinel also reported how detectives stage-managed confessions through the use of selective tape recording.

The bad press caused BSO policy to change in 2003. Spokesman Jim Leljedal said that ever since the agency has required full audio or video recordings of all “interviews of arrested persons and most victims and witnesses.”

Proving that such police misconduct is a crime is difficult. But testimony made in court proceedings under oath and in signed police reports offer prosecutors more straightforward evidence.

At trial, ex-partners Schlein and Fantigrassi both testified Townsend led them to the scene of four Broward murders, and provided them with details only the killer would have known.

DETECTIVE’S TESTIMONY TAKES ON NEW MEANING

But Townsend wasn’t the killer. So the detectives’ damning testimony takes on new meaning.

On the witness stand Schlein and Fantigrassi recounted how they followed Townsend to crime scenes, including the Dillard High School athletic field where 13-year-old Sonja Marion was raped and murdered. Schlein also testified Townsend identified the weapon he used to kill the teenager.

Sonja Marion

Sonja Marion

“The words he used – I’m not absolutely positive – but [Townsend] hit her in the head with a brick that he had gotten from that cement patch,” Schlein said, according to the 1980 trial transcript.

At a pre-trial hearing on a motion to suppress evidence, the detectives gave graphic testimony regarding Townsend’s alleged story about the murder of Terry Cummings.

“He indicated, number one, that when he initially struck her in the vicinity of the shack her wig had fallen off. That wig was in fact recovered immediately outside the shack,” said Schlein. “In addition to that he indicated that when she threatened to scream or began to scream he removed a very large – like a knee sock, which was red and white in color, and stuck it deep into her throat. This is consistent with the way the body was originally found.”

Fantigrassi offered more detail about Townsend’s “confession.”

“He looked down at the ground and said, ‘I used her bra to kill her.’ He made mention that he used a sock in her mouth to keep her from being heard, screaming. He drew a diagram in the sand for us of where the structure was, how it was located and how the position of the body laid in the structure. He pinpointed which direction the head was, which way the legs were, how the legs were. He made mention of a hand he had placed up on – the left hand, that he had place up on her pants.”

Police reports written and signed by Schlein contain many of those same statements. His Sept. 12, 1979 report adds this flourish: “Townsend stated that he placed her left hand on her hip, “to make her look like she pulled down her pants.’”

Townsend, of course, could not have known any details from the crime scene attributed to him by Schlein and Fantigrassi. DNA tests prove conclusively he did not kill Sonja Marion or Terry Cummings, and identify the real killer as Eddie Lee Mosley.

Schlein declined to discuss his testimony or his police reports.

“I’m not going engage in this exercise,” Schlein said before hanging up the telephone.

In an interview, Fantigrassi stuck by his original testimony and said he never lied to convict Townsend.

“I still vividly remember standing in that crowd with the Miami detectives and Mark and listening to [Townsend’s] story and him making the comment about the color of the sock in the mouth,” he said. “How did he get that specific information? I don’t know. I can just tell you I remember hearing it from him like it was yesterday.

“And to this day, how he got that information I don’t know. But he didn’t get it from me, and he didn’t get it from Mark. We are both cut from the same cloth. We don’t play around like that,” said Fantigrassi, who lives in Southwest Ranches.

TOWNSEND’S LAWSUIT

The Townsend lawsuit alleged a sweeping pattern of police misconduct, including perjury, witness and evidence tampering, obstruction of justice and a racketeering conspiracy in which detectives and successive administrations covered up police wrongdoing.

In pre-settlement court filings, BSO’s attorneys argued the agency and its detectives acted in good faith.

The terms of the $2 million settlement are confidential, except for the payout numbers which were filed in Townsend’s guardianship case.

Police misconduct in Townsend’s case paralleled what happened to Anthony Caravella.

In 1983, when he was 15, Caravella confessed to the rape-murder of Ada Jankowski in Miramar. He was released from prison under supervision in September 2009 after DNA testing excluded him as the source of sperm found on Jankowski’s body. He was later fully exonerated.

In 2013, a federal civil jury found that former Miramar police officers William Mantesta and George Pierson had coerced Caravella into confessing and withheld evidence that would have cleared him. They were ordered to pay $7 million. State Attorney Satz did not investigate.

Seth Miller, executive director of the Innocence Project of Florida, said police should be held accountable under Florida’s law that allows a witness in a capital case to be charged with perjury if they recant their testimony.

“If we don’t apply those standards to folks in law enforcement then it allows them to act with impunity,” Miller said.

Eddie Lee Mosley

Eddie Lee Mosley

Eddie Lee Mosley, linked by DNA to four murders once attributed to Townsend, is believed to be responsible for 41 rapes and 17 murders, according to the lawsuit. The crimes occurred between 1973 and 1987, when Mosley was declared incompetent to stand trial for the 1983 Christmas Eve rape-murder of Emma Cook and confined to a state mental hospital for the criminally insane.

In the summer of 1979, when Mosley was free, police were under intense pressure to catch the brutal serial killer terrorizing predominantly African-American neighborhoods in northwest Fort Lauderdale and nearby unincorporated areas.

Townsend’s Sept. 5 arrest in Miami as he walked home near the scene of an assault on a prostitute offered Broward detectives an opportunity to close multiple murder and rape cases. To make it happen, detectives testified falsely and ignored exculpatory evidence like independent alibi witness statements that put Townsend elsewhere at the time of some murders, according to court records.

COPS MISS REAL KILLER

The BSO detectives also turned a blind eye on the real killer.

Former Fort Lauderdale Police Detective Doug Evans. Evans died in 2011

Former Fort Lauderdale Police Detective Doug Evans. Evans died in 2011

Three weeks before Townsend’s arrest, Eddie Lee Mosley, known around his northwest neighborhood as “The Rape Man,” was identified as the prime suspect in rape-murder cases in Fort Lauderdale’s jurisdiction.

At an interagency meeting, Fort Lauderdale Detective Doug Evans laid out the case against Mosley, including the eyewitness testimony of surviving rape victims and a unique shoeprint found at the Cummings death scene.

At trial, Fantigrassi told Townsend’s defense lawyer under cross examination that Evans had an “irrational vengeance” against Mosley.

“He would pursue him to no end. Any time any sort of homicide investigation broke out, he wanted us to check out Eddie Lee Mosley,” said Fantigrassi. “And as a precaution, when I was investigating the ’79 cases I did just that. I did check Eddie Lee Mosley. I discarded him as a suspect.”

Fantigrassi’s decision cost Townsend 22 years of his life. It also left Mosley free to continue to rape and kill.

tenwhowouldnothavediedThe murders of 10 young African-American women and children that occurred between the day of Townsend’s arrest in 1979 and the day Mosley was taken off the streets for good in 1987 are now linked to Mosley, according to the lawsuit.

One of them was 8-year-old Shaundra Whitehead of Fort Lauderdale, who was raped and fatally beaten in her bed in 1985.

But there were other victims, including the man State Attorney Satz’s office helped send to Death Row for Shaundra’s murder, Frank Lee Smith.

Smith spent 14 years in prison before dying of cancer on January 30, 2000. Eleven months later, he was exonerated by DNA tests that identified Mosley as Shandra’s killer.

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.

Back to the future: Bill would bring back disgraced office of Miami-Dade Sheriff

By Dan Christensen, FloridaBulldog.org 

T.A. "Tal" Buchanan, Miami-Dade County's last sheriff. Voters abolished the sheriff's office after his indictment on corruption charges in 1966.

T.A. “Tal” Buchanan, Miami-Dade County’s last sheriff. Voters abolished the sheriff’s office after his indictment on corruption charges in 1966.

A bill that would resurrect the office of Miami-Dade Sheriff, a post abolished by voters 49 years ago in the wake of scandal, is winding its way through the Florida House.

The measure and a companion bill in the Senate seek to amend Florida’s Constitution to strip charter counties of their authority to change the way certain county officers – often called constitutional officers – are selected.

Specifically, House Joint Resolution 165 and Senate Joint Resolution 648 require that county sheriffs, property appraisers, supervisors of elections, tax collectors and clerks of the circuit court be elected. The bills would also limit the ability of counties to abolish those five posts and transfer their duties.

The bill, seen by some as a way to ensure more locally elected jobs for term-limited legislators, would most significantly impact the governments of Miami-Dade and Volusia counties. Both of those counties abolished the constitutional offices of sheriff, tax collector, supervisor of election and property appraiser decades ago and transferred their powers elsewhere.

Broward would be required under the new scheme to reinstate the county tax collector as an elected constitutional officer, unless the county decides instead to seek to abolish the constitutional office through a special act passed by voters. Broward’s tax collector was abolished and his duties were transferred to the Finance and Administrative Services Department as part of broad charter changes in 1974.

Rep. Frank Artiles, R-Miami, is sponsoring the measure in the House. Sen. Travis Hutson R-Palm Coast, is the sponsor of the Senate version which is set for a 1 p.m. hearing on Dec. 1 before the Committee on Community Affairs.

Rep. Frank Artiles,R-Miami, wants to amend Florida's Constitution to require counties to elect sheriffs, property appraisers and other constitutional officers

Rep. Frank Artiles,R-Miami, wants to amend Florida’s Constitution to require counties to elect sheriffs, property appraisers and other constitutional officers

Hutson did not respond to a request for comment. Artiles, however, confirmed in an interview that if Miami-Dade voters vote to elect a new sheriff, Republican or Democrat, he or she would assume the power and duties now held by Miami-Dade’s police director.

Artiles said his bill is intended to end intergovernmental conflicts of interest, ensure the separation of powers, and restore “accountability and transparency” by making those five constitutional offices directly responsible to voters.

“What it boils down to is the bill is about giving the power to the people, direct representation through the county officers as originally placed in the Florida Constitution” in 1885, Artiles told members of the House’s Local Government Affairs Subcommittee on Nov 4.

‘NO INTEREST’ IN HELPING TERM-LIMITED LEGISLATORS

In an interview with FloridaBulldog.org last week, Artiles said it was “idiotic” to think his bill is about creating jobs for legislators forced to depart Tallahassee because of term limits.

“I have no interest whatsoever in running for a constitutional office in Miami-Dade County, nor am I doing this for anybody or anyone to run for another position,” Artiles said.

The subcommittee voted 11-0 to adopt the joint resolution. The House Judiciary Committee is set to take up the matter this week, Artiles said.

Miami-Dade County and the Florida Association of Counties are leading the fight against Artiles’ bill at the Capitol. Jess McCarty, an assistant Miami-Dade county attorney and county lobbyist, calls it a flawed, “one-size-fits-all” approach.

“Our biggest concern is that the state could impose this even if Miami-Dade voted against it,” McCarty said in an interview. “I think most residents would be very concerned about people a long distance from here imposing a form of government.”

Missing from both the debate and a 10-page House staff analysis of Artiles’ bill is an examination of the history behind the various systems of local government that have evolved since 1885, or a review of the events that drove the changes the counties adopted.

In Miami-Dade, for example, systemic corruption led to both the indictment of Sheriff T.A. “Tal” Buchanan and voter approval of a referendum abolishing the sheriff’s office in 1966.

Miami Herald organized crime reporter Hank Messick

Miami Herald organized crime reporter Hank Messick

James Savage is a retired investigations editor for the Miami Herald. As a young reporter, Savage covered those events with Hank Messick, the noted organized crime writer whose crusading stories set the stage for reform.

“I cannot believe that anybody in their right mind would propose reinstating the sheriff’s office in Dade County,” Savage said last week. “There was a whole history of corrupt sheriffs that came before Buchanan… In my 40 years as an investigative reporter, getting rid of the elected sheriff was probably one of the best things we accomplished.”

If three-fifths of each house of the Legislature approves, Artiles’ proposed constitutional changes would be presented to voters statewide next November. The Constitution requires 60 percent voter approval for passage.

The reinstated constitutional officers would be filled in the 2018 general election, unless counties sought instead to pass a special act to abolish them and transfer their powers through a special referendum to be voted on by county citizens.

POLITICAL APPOINTMENTS

In Miami-Dade today, the mayor appoints both the director of the Miami-Dade Police Department and the director of the county Elections Department, which decades ago subsumed the old Supervisor of Elections. The mayor and the clerk of courts jointly appoint the director of the county’s Finance Department, which absorbed the tax collector’s duties.

Miami-Dade voters still elect an independent court clerk, currently Harvey Ruvin, and a property appraiser, now Pedro J. Garcia, who decides the taxable value of residential and commercial property. Garcia, however, is not an independent constitutional officer. Rather, he is a department head for the county.

Artiles was asked if he knew of any systemic abuses that gave rise to his bill. He said he knew of none except “the issue of the (Miami-Dade) property appraiser being beholden to the county commission that sets the tax rate for the county.”

There are 67 counties in Florida, 20 of which have adopted home rule charters. Artiles said his bill directly impacts only eight of those counties – Brevard, Broward, Clay, Duval, Miami-Dade, Orange, Osceola and Volusia – that by charter change or special act have altered the way at least one of their five constitutional officers is chosen or restructured or abolished those posts.

In all eight, the changes included the transfer of constitutional powers away from the court clerk, according to the House analysis.

In Miami-Dade the clerk’s duties as financial recorder and custodian were transferred to the Department of Financial Services, and the clerk’s auditing duties were transferred to the Commission Auditor. In Broward, the clerk’s constitutional duties as clerk of the county commission were transferred to the county administrator.

If approved, the joint resolution would require charter counties that have changed the authority of their constitutional officers to revise their charters and ordinances to conform to the new law.

The House analysis estimates Florida’s print and advertising costs to place the proposed constitutional amendment on the ballot would be about $100,000.

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.

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.

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