One of the Sievers Homicide Trials Likely to Start Tomorrow

It’s been over four years since Dr. Theresa Sievers was brutally murdered in her Lee County home. Her husband Mark Sievers, Mark’s friend from Missouri Curtis Wayne Wright, and an apparent acquaintance of Wright’s who is also from Missouri, Jimmy “The Hammer” Rodgers were all arrested for the killing and charged with First Degree Murder. Curtis Wright later entered a plea to murder in exchange for 25 years in prison with an agreement to give substantial assistance in the other cases, which means he will need to testify for the state. Sievers and Wright are facing the death penalty.

Theresa Sievers

Both defendants are seeking a continuance of the trial, but the judge is eager for prosecution to go forward. He has set four weeks aside to handle the case on the court calendar, and a few weeks ago the cases were severed, so they will not be tried together. That means only one can go, and Rodgers is the most likely to start this month. Since the jury must be death qualified, it will take several days to pick a jury, and maybe a couple weeks, especially in light of the media coverage the case has gained. But we won’t know until the cases go before the judge in the morning.

Body Cam Footage Released in St. Paul Police Shooting

It’s incidents like these that leave me astounded that not every police and sheriff’s department provides body cams to its officers. A week ago, a St. Paul police officer shot and killed Ronald Davis, who the officer said had attacked him after Davis rammed the officer’s patrol car. Protesters took to the streets to call for justice, though dispatch audio indicated the officer shouting “Drop the knife! Drop the knife!” It was poised to be another touchpoint for a story about a black man being killed by a police officer, and several people claimed they didn’t believe the official story that Davis had a knife.

The video was released Tuesday, and it’s dramatic. The officer gets out of his car after he’s struck, and is immediately set upon by Davis. The video shows Davis attacking the officer, knife in hand, knocking him to the ground. The officer gets up and tries to get away, with Davis continuing to pursue him. The officer shouts for him to drop the knife, and ultimately fires when he fails to comply. The video shows that the officer had a grave reason to fear for his safety, and conclusively shows that his actions were justified. Why Davis attacked him is unclear, and the loss of life is certainly a tragedy, but the video gives a lot more insight into what happened, and prevents a false narrative from going any further. I would urge all law enforcement agencies to follow this practice, and supply body cams and other recording devices for officers.

You can watch the video but are forewarned that it is violent and contains mature content:

 

The Dallas DA did an Interview, in Spite of a Gag Order, and the Judge Couldn’t Stand it

Amber Guyger

I should really say the judge couldn’t sit for it, because when she heard the DA had done an interview the night before the trial, she literally couldn’t stay in her chair. The judge is presiding over the Dallas trial of the former police officer Amber Guyger, who went into the wrong apartment apparently thinking it was her own, and shot the resident. The defense is arguing mistake of fact, and it appears they are claiming Guyger was distracted by sexy texts with her partner around the time she entered the incorrect apartment. There was some controversy, as she was initially charged with manslaughter, which is not the correct charge, since she definitely intended to shoot Mr. Jean. The new DA upped the charges to murder, and then couldn’t stop himself from talking to the media on the eve of trial.

Botham Jean

The case is a clear tragedy. While Ms. Gugyer was a cop, she was not on the job. It is indisputed that Mr. Jean was not in the wrong- it was his apartment. Not only that, he was a leader in his church and community. It will be up to a jury to decide if her mistake of fact was reasonable, so as to excuse her grave mistake of killing an unarmed black man in his own home. That’s a tough sell for the defense.

Here’s a story about the judge presiding over the case, and her reaction:

Inmate Tries to Claim Reward Money in Theresa Halbach’s Murder by Claiming that he did it

Joseph Evans

A convicted murdered has written a letter claiming that he was actually responsible for the death of Theresa Halbach. Halbach is the young woman who was the victim in the case for which Steven Avery and his nephew, Brendan Dassey, have been convicted of murder. Avery’s post-conviction attorney has released the letter from Joseph Evans, who is already serving a life-sentence for murdering his wife in 2008. Evan’s letter comes on the heels of an announcement that there is now a $100,000 reward for the arrest and conviction of the real killer of Theresa Halbach. Evans specifically cites the reward as the reason he’s coming forward with his so-called confession.

Avery’s lawyer Kathleen Zellner is unimpressed by the claimed confession. Not only is his financial motive clear, he previously tried to play the other side a few years ago, writing that Avery had confessed to him when they were cellmates. The guy has no credibility. Zellner was more blunt, saying it is “worthless, unless it is corroborated.” She does indicate that the defense is continuing, notwithstanding this distraction, and that they have received some credible tips. In the meantime, Zellner is continuing her appellate fight for a new trial, with her brief coming due in a few weeks.

Indiana Parents charged with Abandoning Adopted Daughter, but they Claim she was Really a 22-Year Old Sociopath

Kristine and Michael Barnett

The headline is the story, because there is no way to abbreviate the lede: two adoptive parents have been arrested and charged with abandoning their adopted daughter, but they claim she had lied about her age, was really an adult, and had even tried to harm them when she was living with them. If it sounds like something out of a movie, you would be right, because it’s basically the plot of the 2009 film ‘Orphan’.

It’s undisputed that the couple, Michael and Kristine Barnett, adopted the girl, and that she has a growth disorder that maintains her small stature. However, the parents claim that her maturity and subsequent tests later showed that she was much older. They ultimately went to court and had her birth certificate corrected from 2003 to 1989, changing her age from eight to 22. Apparently, the decision was later challenged and upheld by the court. She was then legally an adult, and they helped her get on public assistance and helped her rent a place to live. Police affidavits claim Michael admitted that he knew the girl really was a child, that tests had proven in, and that Kristine had told the girl to tell others she was 22. Michael’s attorney denies the claims in the affidavit. The Barnetts, who are now divorced, are both charged with neglect of a dependent for when they moved to Canada in 2013.

Also, while living at the Barnett home, the possible child allegedly attacked a baby, and trying to poison and electrocute them. It really is the movie ‘Orphan’. Read the whole crazy story at DailyMail.com.

Amish Buggy Drinking and Driving Case Ends in Flight

So… a deputy in rural Ohio noticed an Amish buggy rolling down the street, and spotted a 12-pack of Michelob Ultra on the back, so he decided to pull it over. The occupants of the buggy ran off into the woods, and authorities are still looking for them. The horses continued walking down the road, but the officer was able to safely corral them. Not only did they have a case of beer, they apparently outfitted the buggy with a bangin’ sound system and there was a case of Twisted Tea found inside, too. The buggy was taken to a neighboring farm to care for the horses and law enforcement is waiting for someone to claim them.

Mich Ultra not pictured

Yes, it is possible to get a DUI on a buggy. It is a vehicle, even though it is being pulled by horses. You can get a DUI on any vehicle, including lawnmowers, scooters, and even motorized wheelchairs. You can’t get a DUI on a horse in Florida, since it’s not a vehicle, but a buggy like this would definitely qualify under Florida law. No arrests were made, as the suspects got away. Apparently there have been several buggy DUI cases I had not been alterted to…

More weirddui stories here.

The Ninja Robber Trial is Underway in Naples

Surveillance Footage of Robbery

Andres Perez

A string of Florida robberies were dubbed the “Ninja Robberies” because the robbers dressed in black clothes and masks that were similar to ninja garb. A group of men, several from Immokalee, are accused of a series of nine armed robberies stretching from Collier County all the way to Orlando. Several men were convicted in Orlando and sentenced to several years each in prison for charges there. A couple of robbers have also pled to multiple charges in Collier and have been sentenced to 40 years for their involvement. Now on trial is Andres Perez, who is facing 37 different counts in Collier County, including Racketeering, Armed Home-Invasion Robbery, Carjacking and many more. Perez is accused of being the mastermind of the Ninja robberies. He faces life in prison in a trial that is expected to take several weeks. I would not be surprised if some of the co-defendants take the stand to testify against him as a condition of their plea deals.

Details Released in Arrest of FMPD Captain – the Case Still Looks Like Garbage

Capt. Jay Rodriguez

The affidavit for the warrant in the arrest of FMPD Captain Jay Rodriguez has been released, and as we anticipated in the detailed post about the charges yesterday, it doesn’t look like the charges are legally sustainable. As expected, the Misconduct and Prostitution Charges both stem from actions that happened in 2013, several years beyond the statute of limitations.* One newly revealed detail is that the investigating Detective not only accuses Rodriguez of misconduct for being involved in a false report, but also for improperly receiving a benefit with city money for the alleged sexual act. That allegation might sound good, except that he was working in an undercover capacity for the city police department, and his acts led to two arrests. That is still not a prosecutable case. It definitely would have been better practice for Rodriguez to have stopped the suspect before actually receiving a sexual act, but that does not make his action criminal. In fact, it sends a bad message that if the City gets pissed at its cops, it’s going to try to prosecute them for doing their job.

As to the perjury charge, it appears the questions posed to Rodriguez were a little clearer than indicated in the earlier press release. Rodriguez was asked “were you ever involved in sex while on duty” and “have you ever engaged in sexual activity on duty with a sex worker or prostitute”, which Rodriguez denied. These questions are not as vague as “did you have sex”, but they are not so specific that there is not ambiguity. Definitely hard to prove beyond a reasonable doubt. More importantly, this confirms it was an internal affairs investigation, which does not appear to be an “official proceeding” to satisfy the required element of the perjury statute.

Captain Rodriguez may have been involved in wrongdoing, especially if he directed the fabricated statements that led to the arrests of the two individuals. Ultimately, charges were apparently dropped against both of them. However, these charges, under more detailed scrutiny, still look like garbage. If Detective Kendall Bores, who swore out this warrant, does not have a better understanding of the law, that Detective should be reviewed for incompetence. And even if the Detective didn’t catch the problems, it should have gone through the State Attorney’s office (of the 12th Circuit) for review before the warrant was sworn out. But caution gets thrown to the wayside when political pressure gets applied on a high-profile media case.

Also, NBC-2 spoke to another attorney who agrees that the old charges may be barred by the statute of limitations.

Here’s a link to yesterday’s even more detailed post as to why these charges are garbage. To reiterate, police misconduct, and especially lying or falsifying police reports, deleting evidence and the like are extremely bad… but that’s not what Rodriguez is being charged with. As it is, these charges are, in my humble legal opinion, bullcrap, and I call it like I see it.

*Update, the News-Press points out the charges may fit an exception to the statute of limitations, as the accused is a public employee. The charges are still crap, however. They have also posted the full affidavit for the warrant.

FMPD Captain Arrested, but the Charges may be Fatally Flawed

Capt. Jay Rodriguez

So often, the cover up is worse than the crime. That’s the case here, as FMPD Captain Jay Rodriguez is charged with perjury and falsifying a document – two felonies – to cover up for soliciting prostitution, which is only a second degree misdemeanor. However, these charges may not pass muster when we get a chance to look at them. The arrest affidavits are not publicly available yet, so information is limited to the press release and related media coverage. 

The charges apparently date to an undercover sting operation in which Capt. Rodriguez was involved all the way back in March, 2013. He supposedly received a sex act and then authored a falsified account of his actions. This appears to be the basis of the prostitution and falsifying document charges. However, it appears that these charges are outside of the statute of limitations, which would prevent him from being prosecuted. The statute of limitations for a felony, such as falsifying a document, is generally three years while it’s only one year for a second degree misdemeanor. So, prosecution for these charges is more than three years too late!

I contacted FDLE to see if they had any comment about the statute of limitations, but they say the State Attorney makes the filing decisions. These cases are being handled by the 12th Circuit State Attorney, not our local prosecutors.

Further, it’s highly unlikely that Rodriguez could be prosecuted for receiving a sex act during an undercover operation. He was operating in his capacity as a police officer at the time, and that is a defense to criminal charges. For comparison, if an undercover officer buy drugs from a drug dealer during an undercover operation, the officer cannot be charged with buying the drugs. It may be unpleasant, but officers are given leeway under the law in these circumstances. The better practice is assuredly to make the bust before the actual sex act, once an agreement is in place, as indicated by the professor in this article. However, the officer is not prosecutable for his violation of the law. There have been several undercover operations locally where a sex act unfortunately took place, but those officers are not facing charges.

Even worse, the timing of this arrest makes these charges look politically motivated. Just 10 days ago, the News-Press ran an article about officers who have been on paid leave for a long time, prompting city councilmen in the article to say that they wanted to see some action. I cannot demonstrate that the FDLE was moved by political and media pressure, but here we are less than two weeks later with questionable charges. Now the city will likely commence termination proceedings. They got what they were looking for to try to stop paying Rodriguez.

The final charge appears to be perjury for lying in the internal investigation. FDLE indicates that Captain Rodriguez denied having “sex” while on duty. Even if the state can prove that a sexual act occurred (the alleged act was not on the video), they will have a hard time proving that he was committing perjury when he said he didn’t have sex on duty. The most common usage of “sex” would refer to sexual intercourse, and unless there was some better specificity in the interview… it’s not perjury. Further, an interview given in an internal investigation is almost certainly not an “Official Proceeding” as defined by the statute. Perjury usually means lying in court or to in some sort of formal hearing, not simply in a police interview. There is a separate misdemeanor charge for giving a false statement to a police officer, but unless there were some really specific questions being asked about the nature of the sexual activity, even that allegation would be difficult to prove. This charge is also unlikely to be provable beyond a reasonable doubt.

Another questionable issue related to these charges is that WINK news published what appears to be a mug shot of Captain Rodriguez. What’s interesting about that is that Florida Statute prohibits the release of mug shots of law enforcement officers. WINK is not in the wrong for publishing it, but the question is where did they get it? Was his mug shot illegally provided to the media? At this point, these charges, and the way they are carried out, create more questions than answers. I am electing not to republish the mug shot in this article, not so much because of the prohibition on dissemination, rather because I think the charges are bogus and have decided to only publish the professional photo that has previously been widely distributed.

Finally, these charges, and the likelihood they get dismissed, will end up serving as a cover for what should be the biggest scandal related to this whole thing. A Fort Myers police captain has been accused of lying, falsifying reports, instructing other officers to assist in his cover up, and possibly deleting video evidence of a criminal investigation. That is the issue we should be most concerned about, especially in light of the ongoing corruption probes at FMPD going back several years. While Captain Rodriguez shouldn’t be jailed for lying and saying he kept his bottoms on since it’s outside the statute of limitations, we should be terribly concerned that the department covered for his lie for six years. That’s a big lie, and if someone was charged with criminal acts, lying about it is far more serious for the effect it may have had on the integrity of our criminal justice system.

Here’s an edit of the video in question, from the News-press.

*UPDATE* NBC-2 reports he has been put on unpaid leave. I don’t blame Chief Diggs under the circumstances, but it shows that the arrest helped the City with their public pressure to take action.

Boston Judge Arrests a Defense Lawyer for Arguing Her Case

Susan Church

Yesterday in Boston, Judge Richard Sinnott had defense lawyer Susan Church arrested and removed from a courtroom as she tried to read case law relevant to her client’s case. This is wildly inappropriate behavior from the judiciary in any circumstance. Even though the judge released her, several hours later, without pursuing contempt charges, the intent and possible effect of threatening to jail a lawyer for doing his or her job is to discourage lawyers from advocating for their clients. The judge told her her didn’t her to turn the hearing “into theater”, then proceeded to perform the great theater of having her taken into custody. Said Church, “[I] sat there wondering if I was going to jail that night, whether I’d be able to see my children at dinner that night, what I was going to do about my work and my clients.” She continued, “My biggest concern is that this doesn’t have a chilling effect for all the other lawyers out there who are fighting the good fight,” via BostonGlobe.com.

The backstory is that Judge Sinnott was already feeling the heat by going against the prosecutor’s decision not to file charges, and refusing to dismiss this and several other cases the prosecution had already decided were not appropriate to be prosecuted related to protesters against the white supremacist “Straight Pride Parade” in Boston last week. So, when Church was citing case law, she was specifically pointing out the legal authority that said the judge had acted illegally in refusing to dismiss the case. Instead of listening to the legal precedent, he had Ms. Church removed. He didn’t like being told what he was doing was wrong, and he responded by arresting the messenger, who bravely persisted in doing her job in the face of threats to advocate for her client.

Since that episode in court, the prosecutor has filed an emergency petition with the Massachusetts Supreme Judicial Court to overturn Sinnott’s ruling. DA Rachel Rollins argued that the judge, “ignored the clear and unambiguous constraints placed on the judiciary by the separation of powers.” Church cited a 1991 Supreme Judicial Court case for exactly that proposition. It sounds like the case law will require the decision to be reversed, and the Judge may face discipline for his encounter with Ms. Church. Susan Church is a hero.