Tag Archives: sexcrime

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

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.

Kevin Spacey’s Felony Charge in Nantucket Dropped

Today, prosecutors in Nantucket formally dropped criminal charges against actor Kevin Spacey. Spacey had been charged with felony indecent assault and battery stemming from allegations that he had inappropriately groped an 18-year-old man at a Restaurant in 2017. The young man had filed a civil suit against Spacey last month, which was then promptly dropped. There had been accusations that the accuser had deleted text messages that Spacey’s attorneys say may have demonstrated the actor’s innocence. The prosecutor’s office gave the “unavailability of the complaining witness” as the reason they decided to drop charges. The accusers apparent change of heart regarding cooperation could mean several things, but coupled with the allegations of deleted text messages that may have exonerated Spacey, it’s possible that he didn’t want to subject himself to cross examination, or getting caught in a false statement. Did the accuser’s attorney inform the prosecutors that the accuser would not be available to testify, or did he just dodge them…

There have been other accusations against Spacey, which has resulted in his ostracization in Hollywood amidst the “Me too” movement. There have been criminal investigations in California and England, but no other criminal charges. This case was problematic from the get-go, as I’ve discussed before, as the accuser apparently lied about his age and was allegedly flirting with Spacey. I’d try to say something funny, but this guy has already gotten the last word…

Kellen Winslow II’s Rape Trial is Underway

Former NFL player Kellen Winslow is on trial in California for a dozen charges related to alleged sexual assaults, lewd conduct, and indecent exposure: he faces up to life in prison. The first of five accusers testified yesterday, and it did not go well for the prosecution. The victim’s credibility was attacked thoroughly on the stand: her testimony was “shaking and baffling” according to USA Today and she was “caught in a web of lies and contradiction” according to Yahoo’s Dan Wetzel. Wetzel reports that her story changed while she was on the stand, contradicted her prior testimony, and only her word can overcome Winslow’s claim that the encounter was consensual. The state has four more alleged victims with several different claims. It will be hard for Winslow to overcome that many allegations presented to the same jury, but the outcome is far from a forgone conclusion.

Florida Woman Attacks Man with Knife when he Refused to have Sex

katharine nieves tavares ug

Katherine Nieves-Tavares

Katherine Nieves-Tavares of Vero Beach had been drinking when she allegedly pulled a knife and cut the face of her boyfriend, who had declined her repeated requests for sex. He had been sitting on the couch when she starting asking, and when she started yelling, he went out side. She followed him out with a large kitchen knife, and started slashing with the knife. Officers observed numerous cuts on his face, which was covered in blood. Nieves-Tavares was also bloodied when she answered the door. She claims that he already had a cut on his face, and that when she asked him about it, he attacked her. Officers indicated that she failed to give any specific information that would corroborate her story. She has been charged with Aggravated Battery.

samantha mears

Samantha Mears

This reminds me of another woman who attacked her lover for sex earlier this year in Minnesota. Samantha Mears allegedly subdued her ex-boyfriend with a machete and forced him to have sex with her. Since her arrest, Mears has been found to be unfit for trial due to mental health issues, and has been admitted to a state hospital for treatment. That will put a hold on her case, though she could end up being prosecuted if the treatment is able to restore her.

Friday Insanity: Minnesota Woman Holds Man Hostage with Machete, Forces Him to Have Sex with Her

samantha mears

Samantha Mears

Samantha Mears, allegedly a 19-year old lunatic in Montana, has been arrested and charged with suprising her ex-boyfriend, holding him hostage with a machete, and forcing him to have sex with her. He says she had broken in, and when he came home she confronted him from behind and held him hostage with the machete. She then made him lie on the bed, take his pants off, and she got on top of him and initiated sexual intercourse against his will. He called police, pretending to call his friend “Doug”, and police came and arrested her. She claims to have been kidnapped, but the man provided a photo of her on the bed with the machete, and a bite mark on his arm.

There’s almost certainly something more going on here, though there is apparently a history of violence from her to him. However, they did not charge her with sexual assault (rape) or burglary, which would seem to be indicated by the allegations. Also, they say the couple had been dating for 7 years, which is a pretty long time for a 19-year old. So, some things sound fishy, to say the least. Regardless, it’s a pretty spectacular allegation.

UPDATE: Mears has been found incompetent to stand trial, and has been admitted to a mental hospital.

Kansas Man Arrested for Sex with Car

tailpipeFriday Fun on a Monday!

Newton (Kansas) police responded to reports of a naked man underneath a car. When they arrived, they say the man was trying to, ahem, stick his penis in the tailpipe of the vehicle. Police have requested charges for a lewd and lascivious act. The man was drunk, and probably on something else, and had to be tasered when he refused to stop having sex with the car.

SNL’s Colin Jost nailed it: “The sex was described as… exhausting.”

You could say it was… shocking.

I should point out that this case has the requisite lasciviousness likely to proceed criminal that do not appear to be there for the serial pooper we covered last week, or the vagrant pooper our police chief collared a while back.

And hey, two stories in a row that didn’t happen in Florida! #onlyinkansas #fridayfun : on Monday