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.

What’s Going on with CCSO?

Two veteran deputies were fired this week from the Charlotte County Sheriff’s office, and Sheriff Prummel commented at his press conference that they should have known better in light of their many years on the force. I was talking about the cases today with an associate, and I was reminded that there was also a case not long ago that involved stalking-related allegations.

Former CCSO Deputy Eric Ireland

Just a year ago, CCSO Deputy Eric Ireland was fired after his arrest for Official Misconduct and Perjury. He was accused by his ex-girlfriend of planting drugs on her husband, after several stalking-type behaviors that caused her to break off the affair. The story is really crazy, it’s worth clicking through for the backstory. I checked the system, and it appears that Mr. Ireland accepted a plea deal to misdemeanor perjury charge and avoided a felony conviction.

One of the allegations against against Anthony Nardi involved “potential stalking” of an off-and-on girlfriend: using the DAVID Florida Driver Database to look into men she may have been seeing. They have GPS tracking his whereabouts and the ex ultimately filed a trespass warning to keep him away from her house.

That constitutes a second creepy, stalker-like episode with another CCSO Deputy. Sheriff Prummell decried the “rash of stupid” at the force, but when it’s multiple deputies doing similar things over a period of time, there is concern that it’s not a rash, but a pattern. I commend Sheriff Prummell for acting decisively and terminating each of these troublemakers. The best way to discourage improper behavior is to show, in no uncertain terms, what standards deputies are expected to meet, and that there is no tolerance for lawbreakers.

Fired CCSO Deputy may have Planted Drugs on his Lover’s Husband

Former CCSO Deputy Eric Ireland

The Charlotte County Sheriff’s Office arrested, and quickly terminated, former deputy Eric Ireland and charged him with Official Misconduct and Perjury. The police reports have been released, and the allegations are even crazier than the charges indicated.

According to reports, a man who turned out to be the husband of the woman Eric Ireland was having an affair with was arrested for drug possession in Fort Myers on August 13. On August 20, the woman, Sara*, contacted the Charlotte County Sheriff’s office to say that she believed that then-deputy Ireland had planted drugs on her husband, leading to the arrest, and CCSO quickly began an investigation. When they contacted detectives in Fort Myers, red flags went up pretty quickly.

Fort Myers detectives stopped and searched the husband based on information they received from Deputy Ireland, which he had claimed came from a confidential informant. But Detectives thought it was weird when he called them back asking that his name be kept out of the paperwork.

CCSO investigators kept digging, and more and more holes appeared in the story. First, Ireland denied being present for the investigation; claiming to be in Charlotte County. But FMPD Detectives saw a black Mercedes circling the area of the stop, and saw the driver of the car laughing in a child-like manner (that’s what the report says… I picture peals of maniacal laughter). Ireland initially denied that he knew anything about the car, but a couple of Fort Myers detectives were able to identify him as the driver.

Ireland also denied knowing who was involved with the stop, and later denied that he know Sara. She told investigators that they started dating a while back, and had had a sexual relationship, and that he exhibited disturbing behavior: showing up where she worked, where her kid went to school, and even making traffic stops on people she knew. She ultimately broke off the relationship because her husband was getting out of prison, and she wanted to try to reestablish her marriage. But Ireland kept up the contact, and even asked to borrow the husband’s truck a few weeks earlier.

Investigators talked to Ireland, and he kept lying about his involvement with teh case. Investigators also made controlled phone calls with the assistance of Sara, wherein he admitted to lying to investigators, and told Sara another set of lies to try to make it look like he had nothing to do with the arrest. The husband vehemently and consistently denied any knowledge of the drugs when he was arrested. Ireland apparently had the motive, the access to the truck where the drugs were found, and specific knowledge of the location of the drugs, based on the information he gave FMPD.

There is substantial evidence suggesting that he planted the drugs, but probably not enough to prove it in court. However, once the information became known, prosecutors dropped the charges against the husband, though he had already spent 10 days in jail at that point. It will be tough for Ireland to be charged with anything else related to the drugs will make it tough for drug charges to be filed, though he could potentially face a civil rights charge like former LCSO deputy Michael Ronga. Also disturbing is a report that another woman has complained that Ireland was stalking her while he was on duty.

I do commend the CCSO office for taking quick, decisive action to try to make right the fact that one of their own was breaking the law, and to get the wrongly arrested man out of jail as quickly as possible. Public trust in law enforcement is at an historical low, and high-profile local cases, such as the FMPD police chief’s dishonesty and the Ronga case further decay our trust in law enforcement. That’s why accountability and transparency are paramount to rebuild the trust.

*We decided not to publish her, or her husband’s, last name

Charlotte County Deputy Arrested (and Fired)

Few details available so far, but Charlotte county Deputy has been arrested for perjury… and subsequently fired from his job. Hopefully there will be more details soon.

How Much of our Money did the Barry Bonds Fiasco Cost?

Acquitted Obstructionist Barry Bonds

Barry Bonds, whose appeals are finally over after his conviction was reversed, cost American taxpayers a pretty penny. Bonds was prosecuted federally, so we are all paying: this was not a local jurisdictional exercise. This was a substantial expenditure by the United States government. The notice filed yesterday that the government would not attempt to appeal the case to the Supreme Court effectively ends the case, and avoids any additional cost. However, the cost of that final appeal would have been a drop in the bucket of the total cost of prosecuting this case.

Estimates back in 2009 put the cost of the trial at around $6 million. But the trial was the culmination of many years of investigation, whose tally was estimated several years back to be from $55 million up to $100 million. I have not been able to find any more recent estimates, nor any estimates that include the ongoing appellate tally, which included the original appeal, then the larger panel appellate rehearing which finally reversed the one charge of which Bonds was convicted. The Roger Clemens trial may have cost another $10 million or more. That’s a lot of money which was ultimately put toward proving cheating in baseball. While it may be the national pastime; it is not a public interest that needs a government referee (or umpire). The conclusion of Bonds’ case may finally have put an end to this costly undertaking. An undertaking whose bill was paid by U.S. taxpayers.

The Barry Bonds Case is Finally Over

The specious prosecution of Barry Bonds has wound down to an anticlimactic conclusion. Just a little while ago, the Justice Department filed notice that they would not be seeking Supreme Court review of the appellate court decision that overturned Bond’s conviction. That means they are not seeking further appeal, and the case is effectively dismissed.

The government went after Bonds not for using steroids, but for obstruction of justice for not giving them straight answers when questioned by federal agents. He went to trial, and was only convicted of one count, specifically for a meandering answer he gave that was not directly responsive to the question. Ironically, he already served the sentence, which involved house arrest instead of incarceration.

A similar prosecution against Roger Clemens led to not guilty verdicts at trial, though some non-baseball players were not as fortunate. Track star Marion Jones was sentenced to 6 months jail after entering a plea for lying in her steroid investigation. As is often the case, the cover up is worse than the offense. Remember, if federal agents come calling, call a lawyer right away, even if you have nothing to hide!

Are Police Officers Incentivized to Lie?

This opinion article in the New York Times suggests that they are. Even if there is not direct inducement, there are no ramifications for officers if they lie, and the system encourages numbers and, as we’ve discussed recently on Crimcourts, forfeitures of property. The system is set up to encourage arrests, and not as the old adage implies, to protect and serve. While I don’t think the majority of cops are liars, you see it with some frequency in a criminal practice. It’s not just drug cases, but even little things like traffic tickets. And misjudged priorities and a lack of accountability can compound the problem. Again, more cameras will help demonstrate the truth and be better for everybody.

Barry Bonds Conviction Upheld

The Ninth Circuit Court has upheld the Federal conviction of Barry Bonds for obstruction of justice. Bonds will now have to serve his sentence, which is only some house arrest followed by probation. He was acquitted of related perjury charges. This minor conviction is still notable as one of the few steroid related cases to actually result in a conviction. Most famously, Roger Clemens was acquitted of all charges in the perjury prosecution he faced related to his alleged steroid use.

Just an update on Lenny Dykstra, who wasn’t so lucky and was sentenced to three years in prison… he’s out as of a few weeks ago. Hope Nails can turn it around, but he kind of seems like a jerk.

Busy week at the office, I’ll try to get updates on Gonzalez soon for those who haven’t been able to follow. It didn’t finish today, and will continue into Saturday.