By William Hladky, BrowardBulldog.org
Six years after it began, a sprawling civil action targeting the Miami-based star of an Academy Award-winning documentary about dolphin hunting in Japan drags on in Broward Circuit Court with no end in sight.
Ocean World Adventure Park, Marina and Casino, located in the Dominican Republic, says its $700 million “racketeering” suit against Ric O’Barry is about damages it suffered after O’Barry “orchestrated a campaign” that ultimately prevented Ocean World from importing in 2007 a dozen dolphins from a Japanese cove where fisherman slaughter and sometimes capture the ocean mammals.
O’Barry and his employer and co-defendant, the nonprofit Earth Island Institute, counter that Ocean World’s legal action is a SLAPP suit intended to silence O’Barry and other environmentalists. SLAPP is an acronym for “strategic lawsuit against public participation.”
“It is not going to intimidate me and shut me up,” O’Barry said in an interview.
O’Barry became a dolphin activist after training dolphins for the 1960s Miami-based television show “Flipper.” He became a star in “The Cove,’ which took home the Academy Award for Best Documentary in 2010.
The film follows O’Barry and a group of dolphin activists in Taiji, Japan, as they sneak past fences and “keep out” signs to covertly film Japanese fishermen inside the cove as they herd, trap and slaughter dolphins not selected for captivity.
Virginia Sherlock, a Stuart-based attorney experienced in defending against SLAPP suits, said real estate developers often file SLAPP suits to silence critics. Those who file SLAPP suits have no intention of winning, she said. “The purpose is to shut up” critics and make sure “everybody else knows about it” so the suit will have a chilling effect.
Thirty states, including Florida, have anti-SLAPP laws. Florida’s law is weak because it only restricts government agencies and homeowner associations from filing such suits. It does not apply to businesses.
Sherlock said that while SLAPP suits are “almost never successful,’’ they average about 3 ½ years to resolve. Ocean World’s six-year-old suit is unusual, she said.
In its original 16-page complaint, Ocean World sought to halt criticism by asking the court to order O’Barry and the Earth Island Institute, an environmental organization based in Berkeley, California, from showing any videos that mention the “Taiji Twelve” dolphins that Ocean World was attempting to import.
Such videos, the complaint alleged, would “recruit others to commit animal enterprise terror (that)…will cause economic harm…, incite blockages, violence and vandalism towards the…12 dolphins.”
The court, however, declined to approve a restraining order.
Today, the court file fills more than 28 boxes.
Ocean World brought two more suits against O’Barry and the Earth Island Institute in Miami-Dade County in 2007 and 2011 alleging slander, defamation, negligence and fraud. Both were later dismissed.
A fourth suit, filed in Broward last May, is pending. It alleges defamation, slander and libel against O’Barry and Earth Island Institute for remarks made by O’Barry on Mike Huckabee’s television show on March 14, 2010.
O’Barry was asked by Huckabee about how much money dealers earn from selling captured dolphins. He mentioned Ocean World once.
“We know that Ocean World Casino in the Dominican Republic paid $154,000 for each dolphin…and when we started speaking out against this, myself and Earth Island Institute, we were hit with a $700 million lawsuit which we are still dealing with,” O’Barry responded.
Deanna Shullman, a Lake Worth attorney who represents O’Barry, said she requested a trial date for the 2007 case more than a year ago, but has yet to receive one.
O’Barry says Ocean World doesn’t want a trial. The suit “just goes on and on,” he said.
Shullman has complained in a pleading that Ocean World’s lawyer, Alexander Penalta, has delayed proceedings by filing more than 30 notices that he would be unavailable for depositions and hearings.
Penalta, of Boca Raton, declined to be interviewed. He has, however, been busy in court.
In recent weeks, he filed papers asserting a variety of new, unsubstantiated charges against O’Barry, including one that he bilked a couple of money by claiming his dolphins could make spiritual contact with their dead son. Peralta also asked Broward Circuit Judge Marc Gold to order O’Barry to submit to a mental examination because of alleged “memory problems.”
Said Shullman, “The filings by the plaintiff are getting farther and farther afield from the true issues in this case.”
Yet the piling on of allegations is characteristic of a SLAPP suit, creating a “moving target” that is harder to defend against, according to attorney Sherlock.
“The purpose of this tactic is to keep litigation going, even when there is a clear lack of factual or legal support, by simply changing the ‘facts’ as set out by the plaintiff,” Sherlock said.
Ocean World had wanted the 12 Japanese dolphins for a second park it planned to build in the Dominican Republic. But the dolphins were not allowed to enter the Dominican Republic after the government refused to issue a required permit.
Without the dolphins, the park could not be built, Ocean World Vice President Stefan Meister said during a deposition.
“Because of the actions of your clients, I couldn’t get that import permit,” Meister said.
The original lawsuit, however, was filed by Ocean World three months before the Dominican Republic made its decision to deny the permit that prevented the dolphins from entering the country.
Attorney Sherlock said SLAPP suits frequently are filed before governmental decisions are finalized and typically accuse defendants of “defamation” and “tortious interference.” Ocean World’s original case against O’Barry includes those same counts.
While O’Barry and the Earth Island Institute are the focus of Ocean World’s litigation, there is evidence to indicate that diplomatic pressure from Germany and Great Britain played a big role in the Dominican Republic’s decision to block Ocean World’s purchase of the 12 Taiji dolphins.
Meister discussed it in an Aug. 9, 2007 email he sent to two dolphin dealers.
Meister wrote how he had met with then-Dominican Republic President Leonel Fernandez and his environmental minister to discuss importing the Japanese dolphins.
“The meeting was going our way,” Meister wrote, noting that the President had dismissed” complaints from “tour operators, animal rights groups, (and) zoological associations” opposed to importing the dolphins.
But the “atmosphere of the meeting’’ changed when the environmental minister gave Fernandez letters from the German and British ambassadors that said “importing dolphins from the Japanese…would tarnish the image of the Dominican Republic and could very well result in a negative backlash in tourism,” the email said.
“The President said in the national interest of the DR, he cannot allow this import under the international pressure,” Meister wrote.
Meister went on to say that he doubted anyone in the “Western Hemisphere” would “touch” the 12 Taiji dolphins. He suggested dolphin dealers should find a buyer “not politically sensitive to the (Japanese) issue,” possibly in China.
Rulings on the recent legal motions and notices are pending. The next hearings in the litigation are set for January in Broward Circuit Court.
By Myron Levin, FairWarning
It’s hard to think of anything more reckless than adding a deadly carcinogen to a product that already causes cancer—and then bragging about the health benefits.
That’s what Lorillard Tobacco did 60 years ago when it introduced Kent cigarettes, whose patented “Micronite” filter contained a particularly virulent form of asbestos. Smokers puffed their way through 13 billion Kents from March, 1952 until May, 1956, when Lorillard changed the filter design.
Six decades later, the legal fallout continues—including last month when a Broward jury awarded record damages against Lorillard and filter manufacturer Hollingsworth & Vose of more than $3.5 million.
Lorillard and Hollingsworth & Vose face numerous lawsuits by victims of mesothelioma, an extremely rare and deadly asbestos-related cancer that typically shows up decades after initial exposure. Plaintiffs have included factory workers who produced the cigarettes or filter material, and former smokers who say they inhaled microscopic asbestos fibers through the filters. Lorillard says hardly any fibers escaped.
While there is no official count, records and interviews suggest that the number of mesothelioma claims filed against the companies since the 1980s is at least in the low hundreds. Lorillard filings with the Securities and Exchange Commission show the company settled 90 cases in a recent two year period, and that 60 more cases are pending.
Time is on the companies’ side. Since factory workers and smokers with potential claims all are at least in their 70s and 80s, the strange saga of the asbestos filter should soon be coming to an end.
Lorrillard’s cigarette manufacturing plant in Greensboro, N.C. Photo: Rob Brown/Greensboro News & Record
Surprisingly, however, there has been a burst of new cases in the last few years, according to filings with the SEC. Growing awareness of the asbestos episode is probably the cause. These days, a mesothelioma patient is almost certain to be asked by his doctor or lawyer: Did you happen to smoke Kents in the 1950s?
Lorillard officials did not reply to emails and calls seeking comment. H&V also declined interview requests, though company lawyer Andrew McElaney noted that the companies have won most cases that have gone to trial.
“GREATEST HEALTH PROTECTION IN CIGARETTE HISTORY”
Lorillard, based in Greensboro, N.C., is the third-leading U.S. cigarette maker with a nearly 15 percent market share, and net sales in 2012 of more than $6.6 billion. Established in 1760 as the P. Lorillard Co., it is one of the oldest continuously operated companies in the U.S. Lorillard also owns electronic cigarette-maker blu eCigs, which recently created a buzz with commercials by TV personality Jenny McCarthy and actor Stephen Dorff.
Kent was Lorillard’s response to the health scare of the early 1950s, when the link between smoking and lung cancer began drawing wide attention. Tobacco companies scurried to roll out filters to calm jittery smokers and keep them from quitting in droves. The health benefits would prove illusory, but the switch to filters averted the potential loss of millions of customers.
Lorillard named its first filter for Herbert A. Kent, briefly its president, and aggressively touted the superiority of the Kent “Micronite” filter. It was a blend of cotton, acetate, crepe paper and crocidolite asbestos—sometimes called “African” or “Bolivian blue” asbestos because of its bluish tint.
At the time, the risk of deadly lung disease to heavily exposed asbestos miners and plant workers was already well-documented. But asbestos also was known to be an effective filter material, dense enough to stop minute particles and gases, as long as it stayed put. Lorillard had learned of the use of crocidolite in gas masks made for the Army Chemical Corps. In contracting with H&V to supply the material, Lorillard agreed to be held solely responsible for any “harmful effects’’ of the cigarette filters.
Lorillard launched Kent at a press conference at New York’s Waldorf-Astoria, touting the Micronite filter as offering “the greatest health protection in cigarette history.”
From the collection of Stanford University (tobacco.stanford.edu)
Playing on the public’s gee-whiz faith in science and technology, Kent ads told a glamorous, though vague, back story of how the quest for the new filter “ended in an atomic energy plant, where the makers of KENT found a material being used to filter air of microscopic impurities.”
“What is ‘Micronite’?” another ad asked. “It’s a pure, dust-free, completely harmless material that is so safe, so effective, it actually is used to help filter the air in operating rooms of leading hospitals.”
The marketing blitz included advertising in medical journals and mailing gift boxes of Kent to physicians, along with “Dear Doctor” letters talking up the advantages for “patients whom you have felt obliged to advise to cut down or cut out smoking.”
The filter material was produced at H&V plants in West Groton and Rochdale, Mass., and shipped to Lorillard cigarette plants in Louisville, Ky., and Jersey City, N.J. For H&V workers, the results were catastrophic, with whole families destroyed by asbestos disease. A woman named Elizabeth Jacobs buried her husband and brother, both H&V workers, who died of mesothelioma and asbestosis, respectively.
Then Jacobs also died of mesothelioma in 1985 at the age of 54. Her only known exposure to asbestos came from laundering her husband’s dusty work clothes.
The plant was a “dust-creating monster,” said Dr. James A. Talcott, an oncologist who co-authored a study of H&V filter workers. Published in the New England Journal of Medicine in 1989, it tracked the health status of 33 former employees of the West Groton plant. By then, 28 had died—more than three times the expected number, based on average life spans–including 18 from asbestos-related illnesses. Of the five surviving workers, four were suffering from asbestos diseases.
Dozens of Lorillard plant workers also died of mesothelioma. An exhibit in a court case in Louisville listed 34 victims by initials only, under the heading: “Lorillard Workers With Mesothelioma At Louisville And Jersey City Plants.”
How much asbestos Kent smokers inhaled has been a more contentious and ambiguous subject. Internal documents produced in lawsuits highlight Lorillard’s deep anxieties that Kent smokers were breathing asbestos.
For example, an April, 1954 letter from Lorillard research director Harris B. Parmele to company president W.J. Halley stated that researchers had found “traces of mineral fiber” in the smoke. “We are embarked upon a program of attempting to work out a method for the elimination of the presence of such fibers in the smoke,” the letter said.
A memo in September, 1954, H&V official Peter Breymeier discussed the need “to find a way of anchoring asbestos…All efforts are to be exerted to solve the asbestos-dust-in-Kent smoke problem.”
And H&V president A.K. Nicholson stated in a memo two months later: “It is Lorillard’s belief that asbestos must be eliminated from the Kent cigarette as soon as possible because of a whispering campaign started by their competitors of the harmful effects of asbestos.”
As a result, the memo said, H&V would “discontinue that part of our research program devoted to the fixing of asbestos fibres and direct the entire attention of the program toward the complete elimination of asbestos.”
Even so, Lorillard continued using asbestos in the filters for the next 16 months, and continued to sell existing stocks of Kents for several more months.
The filter litigation is hardly Lorillard’s biggest challenge.
The company depends for nearly 90 percent of sales on its popular Newport menthol brand. The Food and Drug Administration is considering whether to restrict the use of menthol in cigarettes—which would be a bigger blow to Lorillard than to its rivals.
The company also faces some 4,500 lawsuits by individual smokers in Florida, thanks to a Florida Supreme Court ruling that made it easier to sue tobacco companies for smoking-related harms.
Though the filter lawsuits are a fraction of that number, Lorillard fiercely defends the ones that go to trial.
“They litigate hard,” said Timothy F. Pearce, a lawyer with the Levin Simes firm in San Francisco who successfully tried a filter case in 2011. “It’s no small undertaking to be in a trial with them,” he said. “They had, like, 13 lawyers” working on the case.
Lorillard and H&V have won 17 of 23 trials of filter cases. One of their six losses came last month in Broward when jurors ordered them to pay more than $3.5 million in damages to former Kent smoker and mesothelioma victim Richard Delisle, of Leesburg. Three other companies were found liable for another $4.5 million.
A key contention of the companies is that little or no asbestos leaked from Kent filters, so plaintiffs contracted mesothelioma in some other way. Despite the nervous tone of internal letters and memos, they say that tests of Kent smoke in the early ‘50s never found more than three fibers per cigarette.
The smokers’ exposures were “very, very low,” Kevin H Reinert, Lorillard’s director of regulatory science policy, testified in a deposition in April “I don’t believe it increased the risk.” Plaintiffs have found this hard to challenge, since Lorillard failed to preserve most of the original test reports.
Plaintiff experts testing cigarettes from old packs of Kents have found abundant asbestos fibers in the smoke. Lorillard and H&V contend the tests were unreliable because the cigarettes had deteriorated with age.
However, the companies’ first line of defense has been to convince juries that plaintiffs didn’t smoke Kents in the first place, and only say they did because they have a bad memory or are shading the truth. To undermine their credibility, defense lawyers and investigators fan out around the country to track down and interview family members, school chums, Army buddies–anyone who might have known the plaintiff in the 1950s.
It’s hard to establish the brand of cigarette a person smoked decades ago, and the strategy has often proved successful. It failed in the case of Don Lenney, who not only won in court, but is still alive nearly four years after being diagnosed (Many mesothelioma victims die within a year).
Lenney, 76, a former insurance agent in Northern California, says he started smoking in high school, and soon switched from unfiltered brands to Kent. “The Kent Micronite filter was supposed to be the healthy alternative,” he told FairWarning, “so I started smoking Kents.”
Diagnosed with mesothelioma in November, 2009, Lenney had his left lung removed and underwent chemotherapy and radiation treatments. He also sued Lorillard and H&V.
“They attacked my credibility as far as whether I had actually smoked Kent cigarettes,” Lenney recalled. Their investigators “were very pushy,” Lenney said. “They would knock on somebody’s door and just ask to interview them…without even calling first to set up an appointment,” he said. “A number of people were put out with that kind of treatment.”
In March, 2011, Lorillard and H&V were found liable by a state court jury in San Francisco. The judge later ordered them [link] to pay Lenney and his wife about $1.1 million in damages and costs. The companies appealed and the case was resolved in a confidential settlement.
Dimitris O. Couscouris, a Los Angeles-area resident with mesothelioma, did not fare as well.
Lorillard mounted a relentless attack on Couscouris’ credibility, suggesting that during his teenage years in Australia he had evaded the draft, and had once improperly received unemployment benefits.
Defense lawyers also seized on a statement by a plaintiff witness that Couscouris had become too sick to walk. They sent a private investigator to conduct surveillance at Couscouris’ home, and videotaped him and his wife getting into their car and making a few stops, including at a restaurant and a shopping mall.
In October, 2012, a Los Angeles jury found that Couscouris had failed to prove he’d smoked Kents, handing a victory to the defense.
“The trial ended up being more of an attack on my client,” said Couscouris’ lawyer Trey Jones. “Almost like a ‘blame the victim’ type thing.”
FairWarning (www.fairwarning.org) is a Los Angeles-based nonprofit investigative news organization focused on public health and safety issues.
By William Hladky, BrowardBulldog.org
James Anderson’s Teacup Puppies Store at 4001 N Federal Highway, Fort Lauderdale
“Wizard of Claws” dog seller James Anderson, who shut his business four years ago amid numerous allegations of wrongdoing and a lawsuit by Florida Attorney General’s Office, is back in business in Fort Lauderdale under a new name and again is involved in legal controversy.
Anderson’s new businesses, the Puppy Collection and the Teacup Puppies Store, are the target of a federal lawsuit alleging that he has engaged in unfair and deceptive trade practices.
Also, a former customer of Anderson’s claimed in an interview that Anderson stocks sick dogs.
Competitor Eleonora Bonfini sued Anderson last month alleging he violated a permanent state injunction when he infringed on Bonfini’s federal trademarks, causing unfair competition.
In 2010, Anderson and his wife Gilda consented to a judgment and permanent Injunction after the late Broward Circuit Court Judge Cheryl Aleman found that they and Wizard of Claws had violated state law by misrepresenting to customers the source, pedigree and adult size of their dogs. Many had bought puppies believing that they would stay “teacup-size” into adulthood.
ALLEGATIONS OF MASS-PRODUCED DOGS
The Wizard of Claws case, highlighted by allegations that the pet store sold unhealthy dogs that were mass-produced at puppy mills, made headlines across South Florida.
The injunction was the end result of about 17 lawsuits filed against the Andersons, including suits brought by the Attorney General and the Humane Society of the United States.
The Humane Society’s suit was the first of its kind in its history.
A year before the injunction was finalized, the Andersons filed for bankruptcy and the national Humane Society removed more than 30 puppies from their store.
The injunction ordered the Andersons not to use the words “teacup puppies” and “puppy boutique,” or several variations of those names in any future businesses or web sites.
Bonfini’s business, TeaCups, Puppies and Boutique, is located at 9003 Taft Street, Pembroke Pines. Her website is www.TeaCupsPuppies.com. She has registered the store’s name and a picture of a puppy sitting in a teacup as trademarks.
Anderson’s Teacup Puppies Store is located at 4001 N Federal Highway. His many web sites include www.TeacupPuppiesBoutique.com, www.TeacupPuppiesStore.com, and www.PuppyBoutiqueStore.com. Anderson also shows photographs of puppies sitting in teacups on one of his web sites.
Anderson’s wife’ Gilda, is not connected with Anderson’s new business and is not being sued.
‘SOUR APPLES’ BY A COMPETITOR?
Roberto Stanziale, Anderson’s attorney, said in an interview that the words and picture that Bonfini claims are hers couldn’t be trademarked because they are generic. The Fort Lauderdale attorney labeled the suit “sour apples” because Anderson “is very competitive in the market”
“Each one of those words is so pervasive in the industry that to say that they have exclusive use of those words is silly,” Stanziale said, adding that Anderson is in compliance with the injunction.
In addition to the trademark infringements, Anderson is misleading customers into believing that are dealing with Bonfini’s company when they order dogs from him, Bonfini’s attorney Miriam Richter said in an interview. Between 20 and 30 customers have complained recently to Bonfini about Anderson’s misrepresentation.
Richter said Bonfini noticed something was amiss during last Christmas’ shopping season when her business dropped by $50,000. Bonfini also heard reports about how Anderson was allegedly misrepresenting his store as her business.
Richter said several customers have given her client statements about the misrepresentation. Two women said they each deposited $2,000 with Anderson’s business to buy puppies after Anderson’s employees told them that were at Bonfini’s store. After they realized that they had been misled, one woman stopped payment through her credit card company and the other woman demanded a refund from Anderson, Richter said.
AN UNHAPPY CUSTOMER
Morgan Rohrhofer purchased a Boston Terrier puppy for more than $1,700 from Anderson’s store in May. Within days of the purchase the puppy got sick. A veterinarian diagnosed the puppy as having giardia, an intestinal parasite. Dogs become infected by coming in contact with contaminated food, soil, or water.
Rohrhofer sent Anderson an email to complain. “According to the vet he contracted the parasite from where he was picked up given the short amount of time between departure from Teacup Puppies and showing of symptoms,” she wrote.
Rohrhofer said in an interview that she spent nearly $400 in vet bills, but Anderson’s business reimbursed her more than $200. She said her now five-month-old pup, Blake, is still ill and on medication.
Puppies at Anderson’s store were kept in cramped glass cages, about 1½ foot by two feet, with three to six dogs per cage, she said,” she said. She saw the puppies “crapping on each other,” she said. “That’s how (Blake) got giardia…I’m so glad that I got him out of that situation. It’s so terrible.”
Rohrhofer said her Boston Terrier came from RCW Kennels located in Elk City, Kan.
The Humane Society of the United States in a 2007 video report listed RCW Kennels as a puppy mill. The puppies lived in “worn out wire cages exposing dogs to sharp edges,” the report stated, adding that a Kansas state inspector in 2006 reported that “urine ammonia smell was so strong in an unventilated building that it burned her nose and eyes.”
The Florida injunction states that James and Gilda Anderson may not acquire animals from breeding facilities that they know “or has reason to know” that the animals were kept “in substandard conditions…”
Attorney Stanziale said his client does not buy puppies from suppliers who raise animals in substandard conditions.
“Mr. Anderson is under scrutiny every month about where he purchased the puppies,” he said. The injunction requires Anderson to report his business activities monthly to the state Attorney General’s Office.
Stanziale questioned the Humane Society’s objectivity in labeling RCW Kennels a puppy mill, claiming that the society “has its own interest.” He said the Humane Society wants to steer people to shelters and away from retail stores that sell “beautiful” dogs.
“There is no way in a million years you can sell thousands of puppies that one won’t be sick,” Stanziale argued. “Where would you want to buy a puppy? I would want to buy a puppy from a guy who is being monitored by the State of Florida.”
Molly McFarland, deputy press secretary for the Florida Attorney General, said in an email that her office is not investigating Anderson for any alleged injunction violations.
“Should consumers believe that this company and its owners are in violation of the injunction filed…under the previous administration, we encourage them to contact our office…,” she said.
By Dan Christensen, BrowardBulldog.org
Since the birth of drug court in South Florida nearly 25 years ago, so-called problem-solving courts have proliferated in courthouses across the country.
Now a new idea that would take judicial specialization a step further could debut soon in Broward after its tentative approval Friday by Broward State Attorney Mike Satz.
“Our office is in favor of the idea,” said state attorney’s spokesman Ron Ishoy.
The idea is to establish a marijuana court where everyone arrested on misdemeanor pot possession charges would be funneled and offered treatment.
“Defendants prepared to go through a treatment program and six months worth of testing, supervision and staying clean would have the charges against them dismissed,” said Broward County Court Judge Gisele Pollack, head of the misdemeanor drug court.
Under Florida law, possession of less than 20 grams of marijuana is a misdemeanor that’s punishable by up to a year in jail and a $1,000 fine.
Offenders can also lose their driver’s license for two years.
Marijuana court could largely decriminalize possession if widely used in Broward.
“The benefit is to make things uniform and to make sure all defendants are offered the same opportunity so you are not going to be victimized by a judge who has an attitude about marijuana or you,” said Public Defender Howard Finkelstein, who also supports the proposal.
DETAILS TO BE WORKED OUT
Details about how the new court will operate remain to be worked out. Pollack, who conceived of marijuana court and would be its presiding judge, said planning meetings are to be held beginning in two weeks with prosecutors, public defenders and judges, including Chief Judge Peter Weinstein.
Broward County Judge Gisele Pollack
In addition to offering a second chance to defendants who participate, marijuana court will offers savings to the justice system, said Pollack. For example, she noted a 2010 Florida State University study prepared for the Broward Sheriff’s Office determined that the county’s misdemeanor drug court saved BSO about $125 million in corrections costs over five years.
More importantly, marijuana court will provide a means of ameliorating significant racial disparities in the system.
A recent study by the American Civil Liberties Union found that African-Americans in Broward, and across the U.S., were 3.7 times more likely than whites to be arrested on marijuana possession charges in 2010. Specifically, nearly 60 percent of the 6,061 people arrested in Broward on that charge were black.
Pollack, who’d been thinking about trying to consolidate all pot possession cases for a while, put the idea back on the front burner after the study’s release last month.
“The ACLU report confirmed what I’ve been saying all along because I’ve seen more blacks than whites come to court,” said Pollack.
The judge described today’s typical defendant as a young black male, 18 to 25, caught with a joint or two. Often he will face an accompanying misdemeanor charge for petty theft, prostitution, resisting arrest without violence, trespassing or disorderly intoxication.
Offenders don’t go directly to jail. Police give them a notice to appear in court.
Defendants charged with marijuana possession, and possibly other offenses, are now randomly assigned to any judge in the criminal division of county court, depending on the police agency that arrested them.
Individuals whose cases are not initially assigned to Pollack’s misdemeanor drug court, where there is an existing treatment program, must decide whether they want to have their case transferred there.
A change in the law last session allows individuals with a prior cannabis charge to participate. The only barrier to participation in the misdemeanor program now is a prior felony conviction, but participation can still be ordered as a special condition if they are on probation.
Another change allows the courts to dismiss not only the marijuana charge, but accompanying nonviolent misdemeanor charges if there is a substance abuse issue involved.
Today, county judges have different standards as to when defendants are allowed to go to drug court and enter the program. They may not explain it clearly or allow objecting prosecutors to nix it for some.
The lingering concerns of the State Attorney’s Office are about the volume of cases that will pass through the court and speedy trial requirements, according to Executive Chief Assistant Public Defender Catherine Keuthan.
Pollack said she has agreed to handle the flow of cases. “I am opening my court to more cases,” she said. To address the speedy trial issue, which requires trials within 90 days of arrest, defendants would have to sign a waiver to enter the program, she said.
The recent change in the law that allows for the dismissal of other nonviolent misdemeanors tied to substance abuse provides another opportunity for court specialization.
Pollack is already thinking about the establishment of a Broward “prostitution court” where defendants there could also have charges dismissed if they complete the treatment program.
Typically, prostitutes are diagnosed with substance abuse, mental health and other issues, Pollack said.
“The legislature has deemed that prostitution inherently involves a substance abuse issue,” she said. “I’m talking to a judge about such a court now.”
By Dan Christensen, BrowardBulldog.org
Public Defender Howard Finkelstein, left, and State Attorney Mike Satz
Recent findings that blacks are much more likely than whites to be arrested for marijuana possession in Broward has led State Attorney Mike Satz to issue an unusual personal defense of himself, his office and local police.
The American Civil Liberties Union national report on racial disparities, The War on Marijuana – In Black and White, found that in 2010 Broward’s black residents were 3.7 times more likely than whites to be arrested for possessing marijuana. That was true even though the percentage of blacks and whites that use marijuana nationwide is about equal, the report says.
Satz did not respond when the report was released last month to little notice in the local media. But he did on Friday after receiving a highly critical letter about its findings earlier in the week from his constitutional counterpart and longtime antagonist, Public Defender Howard Finkelstein.
“These numbers unequivocally show that black residents are targeted by law enforcement,” said Finkelstein. “These numbers fall on your shoulders as the chief law enforcement officer in Broward County. If you did not know that law enforcement was targeting black communities, you were not doing your job.
“Your decision to be a passive State Attorney has given police free rein in the black community. Your failure to lead for the last 38 years has allowed racism to become institutionalized in Broward,” Finkelstein said. Click to see the Finkelstein letter.
“IRRATIONAL, RECKLESS, HYSTERICAL”
Satz fired back in a letter that used the words irrational, reckless and hysterical to describe Finkelstein’s remarks. He pointed out that racial disparity in marijuana arrests in Broward, while equal to the national average, was lower than in Miami-Dade, Palm Beach and Florida as a whole.
“While any form of racial disparity is cause for concern and review, nothing in the ACLU’s analysis addresses the larger problem – so often ignored by your personal grandstanding – of increased crime in underprivileged minority communities,” said Satz. He noted his concern for substance abuse issues motivated his support for drug court and pretrial intervention programs “to facilitate rehabilitation.”
“I have heard you state your desire to legalize marijuana,” Satz told Finkelstein. “It appears in your quest you have decided to besmirch the reputation of all law enforcement in Broward County by turning what is a nationwide issue into a racial problem unique to our community.” Click to see the Satz letter.
In an interview, Finkelstein said, “Let’s see. His defense is that we have a national problem and that I’m no worse than anyone else. That’s his defense?”
The back and forth aside, the ACLU’s study makes clear that Florida – including Broward – evinces serious racial disparities when it comes to misdemeanor marijuana arrests.
While Broward’s African-American residents were nearly four times more likely than whites to be arrested for possessing marijuana – with a rate of arrest the same as the national average – disparities were even greater elsewhere in South Florida.
EVEN WORSE IN MIAMI-DADE, PALM BEACH
In Miami-Dade, blacks were more than five times as likely to be charged by police. In Palm Beach, 4.8 times more likely.
But the ACLU report also shows that in 2010 Broward ranked 12th in the nation for the number of blacks arrested for marijuana possession. Specifically, nearly 60 percent of the 6,061 people arrested on that charge in Broward were black.
In Florida, Broward topped Miami-Dade, Orange (Orlando) and Hillsborough (Tampa) counties in the percent of blacks arrested for possessing pot.
Finkelstein’s letter criticized Satz for allowing that to happen. Satz replied that he doesn’t make law or arrest suspects. “I enforce the law and file appropriate charges when lawful arrests are made by our police agencies,” he wrote.
The ACLU’s study examined FBI Uniform Crime Reporting statistics and the Census Bureau’s annual county population estimates to calculate marijuana possession arrest rates by race from 2001 to 2010. It is the first study to do that for all 50 states, their respective counties and the District of Columbia.
More than 8 million people were arrested on marijuana charges during that time, 88 percent of which were for possession, according to the study.
Possession arrests are up, the report says, and now account for nearly half of all drug arrests in the U.S. Combined, states spent more than $3.6 billion enforcing marijuana possession laws, the report says.
The report comes amid a shift in public opinion across the country toward support for the legalization of marijuana. Two states, Washington and Colorado, became the first last year to legalize recreational marijuana use.
Such a step is unlikely in conservative Florida, but The Miami Herald nevertheless reported poll results in February that found seven in 10 Florida voters supported a constitutional amendment to legalize medical marijuana in the state. The poll was from a group seeking to put such a measure on the ballot in 2014.
A CONTINUING TUSSLE
The clash between Finkelstein and Satz is the latest in a three-year-old wrangle in which the public defender has accused Broward’s longtime state attorney of maintaining a “double standard of justice,” favoring rich over poor and tolerating police misconduct.
A way to ameliorate Broward’s racial disparity in arrests for marijuana possession has been proposed by Broward County Judge Gisele Pollack, head of the misdemeanor drug court.
The change would funnel every marijuana arrest into her courtroom – creating a new “marijuana court” where instead of pleading guilty or not guilty defendants could opt to go through drug treatment. Those who complete the program would see their charges dismissed and their record clean.
Convicted defendants “normally get a fine, court costs and it goes on their record,” said Pollack. “But that will take away scholarships, and you can’t get into the military or rent some apartments or get a decent job.”
Finkelstein supports Pollack’s idea. Satz is considering it.
“I wish he would give me a yea,” said the judge. “I’ve made calls into the supervising attorneys over in county court and they are still undecided. It disturbs me.”
By Dan Christensen, BrowardBulldog.org
Convicted killer Robert Burkell Photo: Broward Sheriff’s Office
Ten years ago, killer Robert Burkell bludgeoned to death his 81-year-old tenant Charles Bertheas, cracking open his aged skull like an eggshell, according to police. The motive: money.
Today, Burkell is in prison for life. But his wife Susan, a Lauderhill resident who authorities say did not participate in the slaying but knew what was happening, is set to inherit more than $214,000 of the victim’s money.
Bertheas’s eight elderly brothers and sisters, who live in France, won’t see a dime. Charles Bertheas designated the Burkells as co-beneficiaries on his accounts at the Bank of America.
Florida law blocks convicted killers like Robert Burkell from receiving property or other benefits because of their victim’s death. The law, however, does not extend to their spouses or consider the murderous circumstances of their crime.
“This is a travesty,” said Broward Assistant State Attorney Peter Holden. “She’s benefiting from her husband’s criminal offense…It stinks.”
“We couldn’t prove she was involved in the murder,” said BSO Detective Tim Duggan. “The only thing we could say was there was no way that she could not have known it was going on. She left moments before it happened.
Mary Susan Burkell, 63, says prosecutors and police have it completely wrong. Her husband was mistakenly convicted of Bertheas’s murder, she said, and now Holden and Duggan are falsely slandering her.
“They said I knew what was happening? What a pair. What a pair,” she said. “No. That’s not correct. They have fantasized over this for so long. I don’t know how they sleep at night.”
Charles Bertheas, whose skull was crushed
The Florida Department of Financial Services, which has been holding Bertheas’s money, awarded it to Susan Burkell in a final order dated March 21. With the help of a Tampa private investigation agency, SRS International, she filed a claim for the property last August after the department rejected a claim by the dead man’s brother. SRS stands to collect a 20 percent commission.
Marc Bertheas, who is 80 and lives in the Paris suburb of Saint Denis, opposed the award and sought an extension of the state’s 30-day time limit to file an appeal. In a letter to the department postmarked April 19, he stated he needed time to find a U.S. lawyer, explaining that he was not fluent in English and had special medical conditions that limit his ability to communicate with legal counsel.
The Financial Services department rejected Bertheas’s request. The reason: It did not receive his letter until April 23 – the day after the deadline.
“Unfortunately, the referenced time period has expired and the department has taken steps to disburse the underlying unclaimed property funds in accordance with the final order,” Financial Services attorney Kate Pingolt Cotner informed Marc Bertheas in an April 25 letter.
Widower Charles Bertheas died Nov. 23, 2003 on the floor of the converted family room he rented from the Burkells in their four-bedroom home at 9107 NW 72 Court, Tamarac.
9107 NW 72 Court, Tamarac, the scene of the crime
Robert Burkell, now 64, summoned police that afternoon after reportedly finding the body. Bertheas had been dead for at least several hours.
Burkell told police he’d last seen Bertheas the night before when they had dinner together at a bar in Sawgrass Mills. He said he thought Bertheas might have hit his head in a drunken fall.
But “a large pool of blood” around the body, and a detective’s observation of “considerable trauma to the victim’s face and head” raised suspicion, court records say. The medical examiner’s office later classified the death as a homicide and attributed it to blunt trauma. The weapon used by the killer to crush Bertheas’s head was never identified.
A motive soon became apparent when it was found that Burkell had “forged a $10,000 check in Mr. Bertheas’s name” the night before the murder, according to Duggan. It wasn’t until later that police learned Bertheas had designated Robert and Susan Burkell as the beneficiaries of accounts containing $280,000 in savings at the time of his death, records say. That included proceeds from the sale of the condo he once shared with his late wife.
No signs of forced entry or a struggle were found at the home, and no valuables were missing. The victim’s DNA was discovered in bloodstains on a bath mat and counter top in the master bath – a location Susan Burkell later testified only she and her husband used. Likewise, two bare sole footprints found in dried blood adjacent to the body were matched to Robert Burkell, the records say.
Burkell was arrested two days before Christmas. It wasn’t his first arrest for murder.
Detective Duggan said that in 1986 Burkell confessed to bludgeoning William Yalden, a Geneva, N.Y. businessman whose body was later found in an Ohio cornfield, “in the exact same manner as he killed Bertheas.” Burkell’s confession was thrown out prior to trial, however, because of a Miranada rights warning issue, Duggan said.
“He definitely got away with that one,” said Duggan.
Things turned out differently for Burkell 20 years later in Florida. While Burkell did not confess to killing Bertheas, he was nevertheless convicted of first-degree murder and sentenced to life in prison. His conviction was upheld on appeal in 2008.
The money in Bertheas’s bank accounts was turned over to the state as unclaimed property in 2005. In 2011, Marc Bertheas tried to claim it, but his claim was denied because he was not a beneficiary.
Burkell’s murder conviction meant he had no longer had a legal claim to Bertheas’ money. Florida law treats killers who stand to inherit from their victims as if they died first.
“Consequently, Susan Burkell is the only beneficiary who is legally permitted to receive the unclaimed property funds at issue,” the Department of Financial Services decided.
Robert Burkell, who has three children by his wife of 40 years, is currently being held at the Broward County Jail while awaiting a ruling on his lawyer’s motion for a new trial based on ineffective assistance of trial counsel. The motion is pending before Broward Circuit Judge Raag Singhal.
On the day she was interviewed, Susan Burkell had not received any payout from the state. How much she will ultimately get is unclear.
For reasons that are not made clear in state records, the $280,000 that was in Bertheas’s accounts at the time of his death had dwindled to $214,221.86 by 2008. Detective Duggan said he’s heard that amount has dwindled further – eaten away by attorney fees.
By Dan Christensen, BrowardBulldog.org
Assistant State Attorney Stefanie Newman Photo: WSVN-Channel 7
Broward prosecutors who declined to charge a Coconut Creek policeman who pulled a Taser on a frightened theft suspect standing in a bathtub never asked the officer under oath why he hadn’t mentioned the incident in his police reports.
Assistant State Attorney Stefanie Newman investigated police allegations that Officer James Yacobellis committed assault and tried to cover it up by falsifying his reports to omit the 2011 bathroom incident.
On Aug. 21 2012, Newman took an hour-long, voluntary sworn statement from Yacobellis. The 55-page transcript shows she did not question Yacobellis about the omission or ask him to answer his department’s allegation that he had falsified his reports.
Likewise, Newman did not ask Yacobellis to respond to accusations from the young man he interrogated in the bathroom, Blake L. Robinson, who claimed under oath that Yacobellis had threatened him with the Taser.
But two months later, Newman offered her own theory to explain Yacobellis’s incomplete police reports in her closeout memo that ended the inquiry without criminal charges.
“There appears to be no intent to hide this fact and the state has no evidence to rebut a contention that this was inadvertently left off the report,” wrote Newman, a prosecutor in State Attorney Mike Satz’s corruption unit.
Public corruption unit chief Timothy Donnelly, who approved the closeout memo, said this week that Yacobellis was under no legal requirement to include in his reports any facts about the bathroom incident.
Public corruption unit chief Timothy Donnelly
“The fact that he omitted any description of what occurred in the bathroom did not make the report false,” said Donnelly. “While (Newman) doesn’t ask him why he never put that in the report, there is no requirement that he put it in the report.”
Nova Southeastern University professor of constitutional law Robert Jarvis called Donnelly’s assertion “laughable.” Jarvis said the facts Yacobellis left out of his reports were clearly important to the state’s criminal investigation.
“They’re not being reasonable,” said Jarvis. “A police report is supposed to be a fair and accurate summary of what took place…It is very easy to see in this case that it is material if you put a suspect in a bathtub and you have a Taser out.”
“This sounds like a very unusual interrogation, and the more unusual it is the more complete a report has to be. It should bother anybody because that is not the way the cops should operate,” he said.
Records show Officer Yacobellis was summoned to Coconut Creek’s Star Pointe apartments on Aug. 15, 2011 to investigate a report of missing jewelry involving several members of the same family. After two suspects were identified, Yacobellis took one of them, Robinson, into a small bathroom for questioning. The door was closed and the sink faucet was turned on full.
Both Robinson and Coconut Creek police Sgt. Dominic Coppola later stated that Yacobellis held a Taser while a frightened Robinson stood in the bathtub. Under oath, Sgt. Coppola testified the Taser was switched on, with its laser beam targeting system emitting.
Coppola said he asked Yacobellis what was going on and Yacobellis replied, “I was telling Mr. Blake (Robinson) here how my report was going to read when he resists and I tase him.”
Newman concluded in her closeout memo that the statement could be either a threat or a response to a threat from Robinson. She then went on to express tolerance for police who display a Taser during an interrogation.
“It is entirely possible that Officer Yacobellis may have taken out his Taser in an attempt to scare Blake (Robinson) into confessing,” Newman wrote. “While this may not have been the best technique to interrogate a suspect, the intent, by all accounts, was certainly to help the victims recover their missing items.
Civil rights advocates, however, called what happened a disturbing example of police misconduct akin to torture.
Broward Public Defender Howard Finkelstein asked the Justice Department this month to investigate the State Attorney’s “long, distressing history” of condoning improper interrogation techniques.
Coconut Police Officer James Yacobellis
In his sworn statement last summer, Yacobellis confirmed he took a compliant Robinson into the bathroom for questioning and said he displayed his Taser only after Robinson started becoming “antsy.”
Yacobellis complained that Sgt. Coppola’s statement about him was riddled with inaccuracies and “lies,” though he offered no reason why Coppola would lie about him. He likewise denied activating his Taser and said Robinson didn’t look scared to him.
Yacobellis complained, too, about Police Chief Michael Mann, asserting the chief had unfairly disciplined him in the past and once threatened to “ruin” his reputation.
Yacobellis said that shortly after the bathtub incident the chief put him on paid administrative leave and ordered him to submit to what he termed a “psyche,” or fitness for duty evaluation by a local doctor.
The doctor found Yacobellis “temporarily unfit,” Yacobellis stated. Prosecutor Newman did not ask him to explain why.
Yacobellis’s union lawyer, Anthony Alfero, stated that another doctor hired by the Broward County Police Benevolent Association concluded “there’s nothing wrong with this guy at all, get him back to work.”
When Newman began to wrap up Yacobellis’s statement without asking him about the false reports allegation Alfero brought it up.
“We don’t know what falsification has to do with these reports,” Alfero said. “If you don’t want to tell us, you don’t have to. But we’re trying to answer the questions so…”
“I think you have. I think you have,” Newman replied.
By Michael Pollick, Sarasota Herald-Tribune
Pompano Beach’s Custom Wood Creations
A Broward County Circuit Court jury has levied a $6 million judgment against FCCI Commercial Insurance Co. for breaching a contract and maliciously prosecuting the owners of a Pompano Beach-based woodworking company, Custom Wood Creations Inc.
The jury award includes $4.8 million in compensatory damages and $1.2 million in punitive damages.
During a three-week trial that ended last week, jurors were told that FCCI refused to fully pay a claim for damage suffered during 2005′s Hurricane Wilma to the husband-and-wife team who owned Custom Wood Creations.
FCCI instead sought to implicate one of the victims, Debra Peters, with insurance fraud. FCCI’s special investigations unit filed false and incomplete information with the Florida Department of Financial Services insurance fraud unit, the suit alleged.
Criminal charges alleging insurance fraud were filed against Peters, who was arrested and spent 16 hours in jail, according to Schlesinger Law Offices, which won the case on contingency basis for the Peters family.
The criminal case against Peters was dismissed in April 2008 for lack of evidence.
FCCI senior vice president Cina Welch said the company is “disappointed in the verdict. But, nonetheless, we continue to have faith in the judicial system, and our focus is on settling claims fairly and ethically for our policyholders and claimants.
“Our reputation is paramount to us, so we will consider appealing the verdict,” Welch said.
An appeal could stretch the final settlement of the case by 18 months to three years.
Welch declined to comment on the particulars of the case, citing the possibility of an appeal.
Founded as a workers’ compensation insurance company in Sarasota in 1959, FCCI now writes multiple lines of commercial property and casualty insurance and has 17,000 policyholders and more than $1.75 billion in assets.
FCCI employs 680, including 375 at its Lakewood Ranch headquarters.
Like most insurance companies, FCCI has its own internal fraud investigators. The FCCI Special Investigations Unit “is highly skilled and trained to quickly identify and aggressively combat fraud,” the FCCI website states.
But in this case, the jury said the unit went too far.
“The central thesis of the case was that the SIU, ostensibly designed to root out fraud, had actually been subverted to an ulterior purpose, which was that of a profit center,” said Scott P. Schlesinger, the couple’s Fort Lauderdale attorney.
FCCI had paid a partial claim of $343,000 after Hurricane Wilma tore the roof off the family’s manufacturing plant and damaged valuable machinery, the couple’s attorneys said.
But then, instead of paying the rest of the $1 million claim, FCCI’s special investigations unit sought to get the first check back. Representatives of the unit contacted a detective at the Florida Department of Financial Services and asked the agency to investigate Debra Peters for insurance fraud, the suit alleged.
At first, the state’s detective said there were not enough grounds. But emails revealed in the trial showed FCCI’s special investigations unit prompted the underwriter on the policy to beef up his affidavit.
“The underwriter, relying on what SIU told him, said it was fraud in the application, and had they known, they never would have written the policy,” Hammer said.
That amended affidavit allowed the state detective to file the insurance fraud case against Peters, which was then prosecuted by the Broward County State Attorney’s office.
“That was the core of this case, that the SIU for FCCI was driving this investigation, pushing it, and caused this woman to get arrested. And it was all to save money so they didn’t have to pay the claim,” said Steven J. Hammer, the Schlesinger firm’s lead attorney on the case. “For the next year, she had to face court charges that could have put her in prison for up to 30 years.”
As part of its punitive damages jury form, the six-member jury said that FCCI not only intended to harm Debra Peters, but that the company was motivated “solely by unreasonable financial gain.”
By Dan Christensen, BrowardBulldog.org
Herson Hilaire, left, and his brother Hedson were shot to death by Miramar police two years ago
Two years ago, Miramar police shot to death two brothers in a residential parking lot during a nighttime drug investigation.
Now it turns out that one of the men – hit six times – was killed by mistake, according to a Broward County Grand Jury report.
Still, no criminal charges will be filed against the four officers who together fired 49 shots at Herson and Hedson Hilaire after Herson allegedly tried to run down an officer at the Tuscany Apartments complex about 9 p.m. on Feb. 1, 2011.
According to the grand jury, both men’s deaths at the hands of police were justified.
“Officer Marc Moretti, Officer Damaso Espiritusanto, Officer Bosco Neuhaus and Officer Michael Bolduc unintentionally injured and killed Hedson Hilaire while using justifiable deadly force against Herson Hilaire in self-defense or defense of others,” says the 10-page report that publicly identifies those officers for the first time.
Neither of the Hilaire brothers is described in the report as having been armed.
Hedson Hilaire, 33, died in the passenger seat of the blue, 2003 Honda Civic his brother was driving. Herson Hilaire, 28, piled out of the car after the shooting started and ran, only to be gunned down on the street about 20 feet away, the report says.
The grand jury, whose report was made public in October to little notice, wrote that it examined “numerous” physical exhibits and took sworn testimony from 14 witnesses, including civilians. It is unclear from the report whether any of those civilian witnesses observed the shooting.
Officers Moretti, Espiritusanto and Neuhaus appeared voluntarily to testify before the grand jury. Officer Bolduc did not testify. The report does not say why.
OFFICIAL ACCOUNT OF GRAND JURY
Here’s the grand jury’s official account of how the Hilaire brothers died:
Police Safe Streets Unit Officers Bolduc and Espiritusanto were on foot patrol that evening in the apartment complex at Southwest 29th Street and 83rd Avenue.
“From a common area outside a window they observed two individuals through some open blinds, later identified as brothers Herson Hilaire and Hedson Hilaire, engaged in what appeared to be the cutting and packaging of crack cocaine, an activity they recognized from their police training and experience,” the report says.
That alleged drug packaging included handling a “racquetball-sized chunk” of crack by the kitchen sink.
Officers Bolduc and Espiritusanto notified their sergeant and Moretti and Neuhaus. Initially, they planned what’s known in police parlance as a “knock and talk” – knock on the front door and ask for consent to search the home or obtain other information needed to obtain a search warrant.
Before they could do that, however, the Hilaire brothers walked outside and got in the blue Honda parked nearby.
On the police radio, the unidentified sergeant instructed the officers to “casually approach” the suspects.
The four officers “casually approached the vehicle on foot, without guns drawn, as directed by their sergeant. The officers were dressed in tactical uniforms, all black, with ‘POLICE’ in yellow block letters across the front of chest and back,” the report says.
Herson Hilaire, in the driver’s seat, backed out of the parking space, “but instead of proceeding on the roadway and driving away, turned and veered toward the closest officer, Officer Marc Moretti, as he was stepping off the sidewalk curb.”
The report says Moretti had been approaching the car “with one hand held up in the air, palm out, and saying, ‘Hey can we talk to you?’ when that blue Honda Civic suddenly came towards him.”
As he was about to be struck, Moretti “removed his handgun from his holster and began firing it at the driver.” The other three officers did, too.
OFFICER STRUCK BY CAR
Moretti was struck by the car and knocked onto the hood and off onto the ground. The vehicle went through the spot where Moretti had been standing and “hit a tree with sufficient force to topple it and damage the vehicle’s front bumper by indenting and enveloping it around the tree trunk,” the report says. Moretti suffered minor injuries.
The car’s engine, however, continued to rev “with audible sounds of acceleration.”
Moretti was momentarily knocked unconscious on the ground near the car and was not visible to the other officers. Officer Neuhaus yelled, “Let me see your hands. Stop, let me see your hands!” to no response.
Fearing for Moretti’s safety, the officers opened fire again at the driver.
Moretti quickly came to, heard the engine revving, and also began firing.
Second later, Herson Hilaire exited the car and ran. “Stop running, stop running, stop running,” Espiritusanto yelled.
When Herson Hilaire didn’t stop Moretti, Neuhaus and Espiritusanto fired again. He collapsed on the street about 20 feet from the Honda.
His brother, Hedson, was dead in the passenger seat after sustaining “fatal wounds in the crossfire of gunshots directed at the driver,” the report says.
The four officers each fired the same type of service weapon: .40 Smith and Wesson Glock Model 22 pistols.
FOUR OFFICERS: 49 SHOTS
In all, 49 shots were fired: 17 by Espiritusanto, 16 by Moretti, and eight each by Bolduc and Neuhaus.
The driver, Herson Hilaire, was shot seven times, including chest, neck and back. Toxicology showed the presence of a small amount of alcohol, methadone, sinus-cold medication and cannabinoids – a chemical compound found in marijuana.
The report says Herson Hilaire had a “reputation for violence…that bears on the issue of who was the initial aggressor in this event.” The officers who saw him “fleeing in a direction where civilians, including children, as well as other officers had been observed,” would have “reasonably believed” him to be an imminent threat “to whomever he might next encounter.”
Hedson Hilaire was shot six times, including the head and back. Only a small measure of alcohol was found in his body. The grand jury said some of his wounds may have been caused by the same bullets.
The brothers lived in Miami. The grand jury reported that the Honda and the Miramar apartment were both in the name of another individual it did not identify and who could not be located. Phone records showed that person was in touch with the brothers shortly before they left the apartment.
“Evidence of cocaine” was found in the apartment by police, but is not detailed in the report.
Instead, the grand jury said it had accepted “circumstantial evidence” provided by the landlord that the unidentified tenant later returned after the lease had expired and removed the racquetball-sized chunk of crack cocaine from the drainpipe under the kitchen sink.
The report is signed by Grand Jury Foreman Christopher Stella.
By Karla Bowsher, BrowardBulldog.org
Milt Grant in 1964
Milton Grant made millions as he rock ‘n’ rolled Washington DC television, hosting a highly popular 1950s dance show, among other ventures.
“The Milt Grant Show” featured guests like Chuck Berry, Buddy Holly and Harry Belafonte, who performed for teenagers – girls in circle skirts and petticoats, boys in sport coats and ties – bopped on the dance floor.
But since he died of cancer at age 83 in April 2007, Milt’s legacy has moved from the dance floor to the courtroom. The longtime Fort Lauderdale resident’s fortune – originally worth $58 million – remains hostage to a messy legal estate battle that pits family against family.
Milt Grant’s only son, Thomas J. “Jeff” Grant, has filed estate-related lawsuits several times in two states, including last month in Broward Circuit Court. He contends the professional estate administrators in charge of his father’s three trusts have ignored his father’s wishes and taken sides against him while raking in millions of dollars in fees. He wants the administrators removed and the unjustified fees returned to the estate.
“He would be rolling in his grave if he knew what was happening,” said Grant, 45, of his father.
After his TV show ended in 1961, Milt Grant went on to build Fort Lauderdale-based Grant Communications. In 1966, he launched Washington, D.C. television station WDCA, which he later sold for $13.5 million. He helped start stations in Dallas and Houston, which he ultimately sold for more than $150 million. In 1984, he founded independent WBFS, Channel 33 in Miami.
Today, Grant Communications controls seven TV stations in Alabama, Iowa, Virginia and Wisconsin, including Fox and CW affiliates.
Along the way, Milt Grant also built two families.
He fathered two daughters with his wife, Shirley Grant, to whom he remained married until his death – although court records state they had been estranged for 51 years. She lives in Maryland, and did not respond to a telephone message seeking comment.
Court records state Milt Grant spent the latter half of his life with girlfriend Tommy Jo Price. The couple never married but had Thomas Grant together. Price died in a Miami Beach hospital in April 2008, a year after Milt’s death. She was 64.
Grant’s November lawsuit accuses Bessemer Trust Company of Florida and Boca Raton lawyer Daniel Mielnicki, his father’s estate planning attorney, of “conspiracy, corruption and greed” that amounted to a breach of fiduciary duty. The complaint asks Judge Speiser to remove Bessemer as trustee and Mielnicki as the legal protector of Milt’s living trust, and seeks money damages to be determined by a jury.
A similar request for a jury trial has been filed in Delaware, where Milt’s two irrevocable trusts are managed.
Among other things, Grant’s complaint contends that his mother was “abruptly fired” from her job at Grant Communications after she was diagnosed with pancreatic cancer. Upon her death, Bessemer Trust officials allegedly told him that there was no money in the huge estate to bury her.
“Shockingly, there was apparently enough money for Bessemer to pay its management fees and attorneys’ fees hundreds of thousands of dollars per month,” the complaint says.
Court records show Grant filed a similar wrongful termination complaint about himself shortly after his father’s death. Grant, who sold national advertising for Grant Communications, claimed that his father’s will had provided for his continued employment at a salary of $125,000 a year.
But Broward Circuit Judge Mark Speiser ruled against him – determining that a job was not a property right that could be passed down through a will.
An appeal is pending in Florida’s Fourth District Court of Appeal.
Court documents filed by Grant’s lawyer state that Grant and Shirley are each projected to receive approximately $20 million from the estate.
But Grant’s new complaint accuses Bessemer of “extravagantly favoring” Shirley.
“Bessemer’s blatant collusion to hide information from Thomas while providing it to Shirley, entering into secret agreements with Shirley and to pay her more money than Milt intended, and actions to divide Milt’s estate for Shirley and Bessemer’s benefit to the detriment of Thomas are multiple reasons to justify the removal of” Bessemer as trustee, the complaint says.
For example, Grant’s lawsuit claims that Shirley, who received $1,500 a month from Milt Grant after they separated, has received about $3 million from estate assets since his death. But Price and Grant, who were financially dependent upon Milt Grant, have received about $250,000 since his death.
Bessemer has filed a motion asking the judge to put Grant’s lawsuit on hold until certain issues in the case are resolved.
“Bessemer Trust believes that Thomas Grant’s claims are unfounded,” said Bessemer in-house lawyer Julian Swearengin in an emailed statement.
CONFLICTS OF INTEREST?
Attorney Mielnicki is accused of having conflicting interests in his dealings with the estate. For instance, the suit says, as an attorney at Greenberg Traurig Mielnicki “drafted an approximate one-million dollar gift to himself” in Milt’s estate plan.
Mielnicki, now a partner in the Boca Raton office of Berger Singerman, had other roles in the estate. He wrote himself in as the trust protector of several of Milt trusts, a post intended to represent the decedent’s intentions. He also chose Bessemer, according to the suit.
“The many hats worn by Attorney Mielnicki is a concern for us,” said Grant’s Fort Lauderdale lawyer, Jennifer Walker. “He was all over the place.”
Mielnicki did not respond to interview requests.
Despite the prolonged legal battle, Grant remains hopeful.
“There’s no guarantees, but I’m very optimistic,” he said.
Milt’s legacy, which includes headlining a TV show with an audience that reportedly exceeded Philadelphia-based Dick Clark’s “American Bandstand,” continues outside court.
“We were part of the great new beginning of television, and there was just so much energy,” Grant once said to the Washington Post. “It made me fall in love with television and all its powers.”
Karla Bowsher can be reached at firstname.lastname@example.org.