Category Archives: Federal

The FMPD Officer Investigation Continues to Evolve with new Details

fmpd

Fort Myers Police Department

WINK has done some follow-up reporting about the continuing situation with FMPD officers that were suspended after the Freeh Group audit after new details were divulged a few weeks ago. First, WINK has reported that the four officers were subpoenaed to testify before a federal grand jury related to the investigation. None of the officers appeared, which is not surprising as any of their attorneys would have declined to allow them to testify under those circumstances. WINK spoke to Captain Perry’s attorney who said as much, and said that he could not let his client testify when he wasn’t sure any details of the investigation. It was mentioned that the officers received letters, which sounds like they may have been target letters: suggesting they were personally being investigated.

Second, that WINK article included an interview with former acting Chief Eads, who ran the department when the investigation got underway. Eads states that during his time in charge that he did not have any facts presented to him that were actionable. Ultimately, the four officers were suspended when the new chief received the Freeh Group report, and the redacted pages that still have not become public knowledge.

These reports, and those we discussed here before, suggest that the investigation of the officers is intertwined with the federal charges against accused drug trafficker Robert Ward, and to federal informants that were murdered. Ward is accused of murder for his involvement in the death of Kristopher Smith, and the murder of Victor Johnson appears to be related, as well. Detective Matt Sellers, the retired FMPD homicide detective, handled the investigation into the murder of Kristopher Smith. He went on WINK and stated that not only does he believe that the officers were not involved with that murder, but that he has also presented evidence that exonerates them to investigators. That means the Chief at the time, and the lead investigator, are both on record saying that they are unaware of any wrongdoing or connection between these officers and the Smith murder.

The city, the FBI, and other law enforcement agencies do not have to release information related to ongoing investigations. It may be years before the public finds out what was really going on at FMPD. The upcoming trial of Robert Ward, who is headed to federal court in Orlando may shed some light on why FMPD suspended the officers. Three of the officers have retired, but one remains on paid leave… three years after the suspensions were handed down. The leave for the officers has totaled over $200,000 and counting, and stands as an expensive unanswered question that even city leaders may be in the dark.

In other FMPD news, more details from the discovery in the case of former Captain Jay Rodriguez have been released. Also, it appears the state is considering additional charges for making a false report (no additional charges have been filed, it’s still in an investigation phase.) Rodriguez filed a report prior to release of the prostitution video that local activist Anthony Thomas tried to extort him for money or he would release the video. Thomas denies the extortion claim, which is now the basis for the false report allegation. Thomas later published the video on Facebook. The alleged extortion attempt supposedly took place when Thomas confronted Rodriguez outside a city council meeting, but there do not appear to be any witnesses. This type of charge is difficult to prove, because it is entirely he said/she said.

Finally, several FMPD officers are under investigation for an altercation that occurred off-duty at a Cape Coral bar the Dixie Roadhouse. Three officers have been placed on administrative leave pending the ongoing investigation. Apparently, the alleged victim was struck in the head with a beer bottle, and the incident was captured on video, which may become public down the road.

Police Manipulate Photo to Implicate Man they Suspect in a String of Robberies

Portland police had a suspect in a string of bank robberies in 2017 but they had a problem, he didn’t match the description of any of the tellers who had been robbed. The suspect, Tyrone Allen, has multiple, distinctive facial tattoos, and none of the victims observed any tattoos on the robber. Instead of trying to generate a new suspect that matched the description, the cops decided to double down on Mr. Allen. In order to make him look like the suspect in the robberies (some of which were capture on surveillance video), a technician digitally removed the tattoos from a picture of Mr. Allen. These manipulated photos were then placed in a photo-lineup and a couple of the victims identified Mr. Allen. He is no facing multiple robbery charges. Here’s a side-by-side comparision:

This tactic is extremely troubling, as it increases the potentiality for mis-identification. For that reason, Allen’s attorneys have asked the court not to permit the identifications to be presented to a jury. Courts have often held that identification procedures, if they are unduly suggestive, are not permissible. I’ve never seen this extremely concerning procedure, but it certainly appears to raise concerns that there is a high risk of an erroneous identification. It’s troubling that a man who was not identified by witnesses was only identified after his image was airbrushed.

Supreme Court Upholds the Double Jeopardy Exception

Supreme Court

I suspect most people don’t realize there is a key legal loophole that allows people to be prosecuted more than once for the same crime. It’s understandable that people would not realize this, as the Fifth Amendment pretty clearly states: “… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” It’s a principle handed down through the common law, and appears to date all the way back to the Roman Empire. However, U.S. courts have allowed people to be tried, and punished, for duplicate offenses if those offenses are prosecuted in different jurisdictions: State and Federal. That is, even if a state court has tried, convicted, and sentenced someone for a charge in state court, the federal government can also try, convict, and sentence them in federal court. The sentences can even run consecutively, that is, one after the other.

On Monday, the Supreme Court issued a decision in a case, Gamble v. United States, that could have reversed the long-standing exception to the bar on double jeopardy. Instead, a 7-2 majority upheld the double jeopardy exception. The majority opinion found that the separate laws are defined by different sovereigns: although “separate sovereigns” is a judicial construct that does not appear in the Constitution. Mark Joseph Stern at Slate points out that dissenting justices Ginsburg and Gorsuch cite founding father Alexander Hamilton, in the Federalist papers, argue that sovereignty derives from the people and that the federal and state governments are to be regarded as “ONE WHOLE”. So, the two-sovereignty theory fails the framer’s intent test, as well as failing to convince the court’s leading textualist in Gorsuch. The plain language of the Fifth Amendment does not seem to support that the “atom of sovereignty” can be split so as to place a person twice in jeopardy for the same offense.

This is not a change of law, the courts have long upheld the state/federal exception to the bar against double jeopardy. However, for those that have long thought the state of the law did not reflect the intent of the Constitution, this opinion represents a missed opportunity to close this loophole and protect this right of the people.

Brooklyn 99 used the Stingray as a Plot Device

We’ve talked about the secretive Stingray devices several times on crimcourts, and I’ve even talked about them on local TV. Stingrays are devices that mimic cell phone towers and can allow law enforcement to secretly collect cell phone data. The problem is, without a warrant, they can be used to unconstitutionally invade people’s privacy and to collect overbroad types of data from innocent citizens. It’s a clear violation of the constitutional prohibition on unreasonable searches.

On the pair of shows of the fictional New York police precinct “Brooklyn 99” which aired last night, the officers of the 99th precinct discover the new NYPD police commissioner has started using a Stingray to illegally collect data. The good guys set up a sting operation to bust the commissioner and end the illegal data collection program- a Stingray-sting! Hijinks ensue, but I won’t spoil the outcome for those who haven’t seen it. Nonetheless, it’s impressive that a comedy show used a hot button topic as the basis for an episode.

Dozens Indicted in College Entrance Scam, Including Celebrities and College Coaches

Federal prosecutors unveiled 40 indictments today in an extensive scheme for wealthy parents to assist getting their children into elite schools. Essentially, well-off parents were using a college preparation business, run by William”Rick” Singer, as a go between to cheat and bribe their children’s entrance into schools. Singer’s company was called Edge College & Career Network, also known as “the Key”, a for-profit prep business out of Newport Beach, California.

Rick Singer, per SacBee.com

The first step was often to have Singer cheat on the tests. It appears this would be accomplished in several steps: Singer and his cohorts, some of which are cooperating witnesses, would have the parents claim a learning difference that would allow their children more time and to take the test at a different location. Singer would use a testing location that he “controlled” to then improve the children’s performance on the test, getting higher scores and making the children more attractive to elite schools. The children would not even know about the adjusted tests, leaving them to believe they had just performed well.

There was a second approach that involved bribing the schools. In some instances, Singer’s connections would designate the students as recruits for college athletics teams to facilitate their admission. Singer also ran a charitable organization through which he would funnel the money to coaches, such as Yale women’s soccer coach Rudolph “Rudy” Meredith, who had coached there for more than 20 years. Nine coaches and sports administrators have been indicated, including those from schools such as Stanford, USC, Texas and Yale.

Felicity Huffman and Lori Loughlin

The operation involved more than two hundred FBI agents, multiple cooperating witnesses, and has ensnared rich and powerful people such as actresses Felicity Huffman & Lori Loughlin, as well as CEOs and prominent lawyers. Some payments were in the thousands, while others paid up to $6 million to get their children into competitive elite schools.

Bi-Partisan Criminal Justice Reform is Gaining Momentum

Criminal justice reform has been a growing topic of late, and has been garnering more and more support from both sides of the aisle. Recently, even President Trump has signaled his support for such reform. It makes sense from a lot of standpoints: more efficient justice, less recidivism and less expense, while reuniting families: especially those separated by excessively long prison sentences for non-violent offenses. The growing movement has finally gained enough steam that the Senate appears poised to vote on a justice-bill, albeit a ‘slimmed-down’ version, before the end of the year. This is a good thing, though as the name of the bill, the “First Step Act”, implies, it should be merely the beginning of positive reforms.

Michelle Suskauer

Bar President Michelle Suskauer

Florida also has a need for criminal justice reform. Florida has a very draconian sentencing structure, in many cases imposing decades-long mandatory minimum sentences on non-violent offenses that far exceed the federal sentences that are being reconsidered. Florida Bar President Michelle Suskauer, who has spent many years in the justice system as a defense attorney and is acutely aware of the issues has made a push for consideration of the issue to raise awareness. The Florida Bar recently held a Criminal Justice summit to discuss the issue (the Bar cannot take a position), and Suskauer wrote an informative update in an OpEd published in the News-Press this week, and elsewhere. You should definitely check out her more detailed article, here.

Babcock Ranch Ordered by Feds to Stop Using Autonomous School Bus

Transdev AV School Shuttle

Transdev shuttle in Babcock Ranch

TheĀ U.S. National Highway Traffic Safety Administration shut down an experimiental student shuttle program that had gotten underway in the new town of Babcock Ranch, in southern Charlotte County, Florida. The town had been advertising the autonomous student shuttle, which picked up students and transported them to school one day per week. While Transdev, the company that operates the shuttle had gotten permission from NHTSA to utilize the shuttles for a demo project, using the project as a school bus requires substantially more oversight from regulators. And even though they are calling it a shuttle, it ferries multiple children to school, so it certainly qualifies as a school bus.

I guess the good news is, I have not heard any complaints about the shuttle experiment in Babcock Ranch, and more importantly, no indications of any injuries. Perhaps they can continue the autonomous shuttle project in the town, just not as a school shuttle until it complies with the safety regulations. They are trying a lot of new things in Babcock Ranch, ‘America’s First Solar Town’, and there are going to be hiccups and growing pains… so it’s probably not best to try it out on the kids.

UPDATE: The News-Press has picked the story up, with some comments from Babcock developer Syd Kitson.