Tag Archives: jay rodriguez

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.

FMPD Captain Arrested, but the Charges may be Fatally Flawed

jay rodriguez

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.