By Dan Christensen, BrowardBulldog.org

Original I.A. report states "Officer was arrested," left. Revised version, right. Click to enlarge.

The Broward State Attorney’s refusal to pursue a Fort Lauderdale Police Internal Affairs report that was purged of information about an officer’s arrest has drawn the ire of Public Defender Howard Finkelstein.

Finkelstein asserts that the police broke Florida public records law when the head of Internal Affairs changed a police database to delete any mention of the out-of-state arrest of Sgt. Jerald Fuller.

Fuller had been arrested in New York in connection with a dispute involving property damage. A New York municipal judge dismissed the case and sealed the court file four days after Fuller’s July 19, 2009 arrest.

Fort Lauderdale Police Capt. Rick Maglione, who left Internal Affairs in 2011, says he removed the arrest information to comply with the judge’s order.

It can be a crime in Florida to falsify or alter a public record, whether a paper report or an electronic database. So when a tipster alerted the Public Defender’s Office in February to what was done, a request was made for State Attorney Michael Satz’s public corruption unit to investigate.

Assistant State Attorney Tim Donnelly said last week that he spoke with Maglione and determined no investigation was necessary.

“There is no crime in editing your own document,” Donnelly told Broward Bulldog. “It’s not a public record. It’s like a Word document.”

Finkelstein is not happy with Donnelly’s conclusion.

“Despite direct evidence that a police captain, while conducting an Internal Affairs investigation, altered a report to conceal the fact that a police officer was arrested, your office has found nothing wrong nor even found the need to investigate,” Finkelstein said in a recent letter to Satz.

In an interview, Finkelstein added, “The public record is not a work of fiction, but that’s what happened here….It was creative writing to make it appear that what happened didn’t really happen. If it isn’t illegal, it is certainly unethical.”

Public Defender Howard Finkelstein

SERGEANT DISCLOSED ARREST

Fuller, a supervisor with the city’s controversial anti-drug unit known as the Northwest Raiders, disclosed his arrest to superiors. Details, however, are sketchy. Not only is the New York court file sealed, Maglione did not obtain – or request – a copy of the New York police report describing what happened. New York law allows police agencies access to sealed cases.

“Everything I had was self-reported” by Fuller, said Maglione, a former Raider. “I was satisfied with that because I was also assured (by Fuller’s New York lawyer and an unnamed local district attorney) that no crime occurred.”

Maglione’s account, based solely on what Fuller told him, states that Fuller was on vacation in Niagara County, N.Y. on July 19, 2009 when “he became involved in a disturbance at a privately-owned residence.” Fuller, a 19-year-veteran, was with his brother “and another individual known to the Fuller family, the report says.

“The disturbance prompted a neighbor to contact the local police and it was initially determined that Sergeant Fuller and his brother were responsible for some minor damage to the other individual’s property, but any contemplated charges were subsequently dismissed once it was determined that no crime occurred,” the report says.

Maglione’s report does not say what crime Fuller was charged with, provide the location and time of the incident, describe the damage or say what police agency investigated.  It also does not mention that one or two other persons were arrested.

Likewise, the police file includes no notation that the report was altered because of New York law. The department’s software system, IAPro, also does not track such changes. “It overwrites the first entry entirely,” Maglione said.

Maglione, now a top aide to Chief Frank Adderley, says he deleted the arrest information in an update before finalizing his report in August 2009. But Al Smith, Finkelstein’s chief investigator, said he determined the alterations were actually made about a year later. During that time, he said, the cleaned-up version was sent out in response to several requests for information about Fuller.

The arrests occurred on a Sunday. By the end of business Thursday, the case was dismissed and sealed by Somerset Town Court Justice Donald P. Martineck.

A few days later, Fuller presented Maglione with a letter from his attorneys, George Muscato and Michael H. White Jr., declaring that “all charges” had been dismissed and that complainant Clayton Cooper had signed a document stating “he did not want to pursue any further charges” and, in fact, had never wanted “to bring charges in the first place.”

Cooper is not further identified. A 78-year-old man with the same name who resided in a small home in the tiny town of Barker, which is surrounded by Somerset, N.Y, died in September 2010.

CLOSED CASE COMES BACK

Maglione closed Fort Lauderdale’s Internal Affairs investigation on August 10, 2009. He did so, he said, without obtaining a police report to verify what Fuller had told him. A signed hard copy of his report, sans mention of the arrest, is included in the file. Case closed, he said.

Captain Rick Maglione

But two and a half years later, on February 1, 2012, investigator Smith, a former Fort Lauderdale police detective, received at his home copies of two nearly identical internal Affairs reports about the New York incident. The second, as Smith put it in his referral to prosecutors, was “sanitized” to omit the fact of Fuller’s arrest.

The Public Defender’s Office filed a public records request seeking Fuller’s file because he is a witness against a client. The police coughed up the version of the report that does not mention that he was arrested.

Police legal advisor Bradley Weissman now says it was a mistake for police to release even the censored report because of the blanket sealing order.

“I believe we made an error when we turned it over,” Weissman said. Still, Florida’s broad public records law requires such records to be open to the public.

Fuller’s Fort Lauderdale attorney, Michael Gottlieb, is upset that someone leaked Internal Affairs records about his client. He said he suspects it was done by “somebody in internal affairs who wanted to get somebody else in trouble and who thought this case was improperly closed or that favoritism was shown.” He declined to name names.

A MATTER OF CONCERN

While prosecutors have brushed the matter off, Finkelstein’s letter to Satz calls it a matter of “great concern” because defense counsel rely on information in Internal Affairs files to locate information they can use to impeach the testimony of officers who are witnesses against their clients.

The disagreement is part of long-running legal spat between Satz and Finkelstein about pre-trial disclosure by prosecutors. For nearly 50 years, courts have required prosecutors to turn over so-called Brady evidence – information favorable to a defendant.

Satz has said his disclosure policy “far exceeds” his legal obligations under Brady. Finkelstein counters that Broward prosecutors tend to withhold too much potentially favorable evidence and have little interest in enforcing Brady requirements when it comes to the police. He cited that concern in his letter to Satz.

“The failure to address this incident evidences the double standard your office employs when police misbehavior is at issue,” Finkelstein said.

By Ann Henson Feltgen, BrowardBulldog.org

Judge Mark Speiser

A Broward County probate judge has nipped an alleged attempt to redirect a $3 million inheritance intended to care for four beloved show dogs following their owner’s death.

Judge Mark Speiser threw out financial advisor Charles E. Bishop’s claim as inheritor of the estate and froze the $3 million account.

Now, the Financial Industry Regulatory Authority (FINRA), a non-governmental agency that oversees investment companies, has charged Bishop, of Pompano Beach, with attempting to misappropriate the money when he was a broker with Merrill Lynch, Pierce, Fenner & Smith, Inc. in Fort Lauderdale.

“Bishop deceived the customer into believing that the money in her account would be transferred, after her death, to a company that she created to care for her prized show dogs,” say FINRA records. “Bishop’s scheme was foiled when a probate court refused to permit the transfer.”

A hearing on the regulatory complaint is set for Sept. 10, according to Bishop. If found guilty, he could be expelled from the securities industry and have to pay hefty fine. He could also face criminal charges if an adverse ruling is forwarded to prosecutors.

Bishop said he is innocent. “I’ve been trying to get a hearing for three years,” he said. “These are unsubstantiated allegations, they are very distorted.”

He declined further comment.

ELDERLY COUPLE AND PRIZED POOCHES

According to the FINRA complaint, in 2005 Bishop began handling the investments of Fort Lauderdale residents Stephen and Elizabeth Lupe, an elderly, childless couple.

Elizabeth Lupe had a passion for her four purebred Bouvier dogs, which regularly competed on the dog show circuit.

To ensure the dogs a comfortable life after the couple’s deaths, in2006 Elizabeth formed Dancing Bear Kennel, which would receive the family’s assets. According to FINRA, Bishop handled the paperwork for the corporation and its account.

Stephen Lupe, 77, died January 5, 2009, as his wife’s health was failing from a terminal illness.

Elizabeth Lupe “did not wish to leave her money to Bishop,” says FINRA’s complaint. Still, on Feb. 9 she signed a pair of Merrill Lynch documents that appear to have set Bishop up to inherit her $3.2 million brokerage account.

A Merrill Lynch “client relationship agreement,” restated Dancing Bear Kennel as her beneficiary, but listed the company’s federal tax identification number as “applied for” when, in fact, it already had a tax number. A separate “transfer on death form,” providing for an immediate transfer of assets upon her death, named as beneficiary an entity with a slightly different name, Dancing Bear Kennel I.

Elizabeth Lupe’s signature is on the transfer form, but she “was not present before the notary when the signature was notarized,” the complaint says.

IRS records list Bishop as the “sole member” of Dancing Bear Kennel I, according to the complaint. The entity was issued a federal tax number, but was never incorporated as a business. Nevertheless, state records show that on Feb. 11 Bishop incorporated yet another similarly named entity, Dancing Bear Dog Kennel LLC, listing himself as sole managing member.

A DOCUMENT IS ALTERED

On Feb. 19, three days before Elizabeth Lupe’s death and 10 days after she executed the client relationship agreement naming Dancing Bear Kennel as her beneficiary, the agreement was “altered,” the complaint says.

The words “applied for” were removed and the new tax identification number for Bishop’s new entity, Dancing Bear Kennel I, was added, the complaint says. Lupe did not acknowledge the change with her initials.

“Bishop’s actions assured that the paperwork at his firm made him the inheritor of (Lupe’s) Merrill Lynch brokerage account outside the probate process. He did this just after her husband died, and a few days before (her) own death,” the complaint says.

Broward Probate Judge Speiser was assigned the case.

One of the judge’s first actions was to freeze all accounts at the urging of Elizabeth Lupe’s close friend Irene Roussos, who feared she may have been taken advantage of and that the estate would be bled dry.

Records show that two days after the accounts were frozen, Bishop hired Miami attorney Richard C. Milstein, who filed a notice that his client was an interested party and claimant to the Lupe estate.

Court-appointed Estate curator Laurence Blair, an attorney who specializes in wills, trusts and estates, and his Deerfield Beach attorney Marc J. Gold took on the case. In early March, Gold researched whether “a person who is licensed to sell securities can be a beneficiary of a client’s account, which he opens up in the client’s name,” according to the court documents. The pair also reviewed documents for Dancing Bear Kennel.

Speiser threw out Bishop’s claim and ordered the money transferred to Blair’s care. The show dogs, Hot Shot, Party Girl, Lulu and Hoorah, were placed in adoptive homes and the $3.2 million divided among Elizabeth Lupe’s cousins.

Charles Bishop's waterfront home in Pompano Beach

Bishop says he did nothing wrong because he never received his client’s inheritance money.

But records show that Merrill Lynch fired him in April 2009 for violating company policies regarding his attempt to inherit assets from the account of a deceased client. In January 2011, an arbitrator found Bishop liable for breach contract with the company and ordered him to refund nearly $1 million of his sign-on bonus, plus interest and attorney’s fees.

Bishop filed for bankruptcy a month later and those debts, and others, were discharged in December.

DOGGED BY COMPLAINTS

Bishop has made his living managing client investment accounts.

In all, 11 complaints have been filed against Bishop with FINRA, three of which are still pending.

Currently he is an independent financial contractor at National Asset Management in Boca Raton – a firm not regulated by FINRA. Bishop says he makes $15,000 a month.

Florida’s Office of Financial Regulation investigated Bishop when he applied to be a registered agent with National Asset Management, but approved him on the condition the firm place him under “strict supervision.”

Bishop worked for Morgan Stanley in Fort Lauderdale from 1998 to 2008. While there, he was accused of misrepresentation in a bond purchase. A claimant was awarded $40,000 plus interest.

Bishop then went to work for Merrill Lynch after getting a nearly $1 million sign-on bonus, court records say.

He apparently did well.

According to records filed during a Broward divorce proceeding filed in 2008, Bishop had two kids in private schools, an expensive water-front home in Pompano Beach, two rental properties in Fort Lauderdale, two boats, a condo in Myrtle Beach, South Carolina and was the half-owner of another condo in the Florida Keys. His annual income was upwards of $300,000.

But Judge Alfred J. Horowitz noted that Bishop had improperly bought one of the Fort Lauderdale rental properties with a client, a professional conflict of interest. To hide the conflict, the judge said, Bishop put his wife’s name on the deed.

In another instance, the judge wrote, Bishop “recommended to his clients to buy [Myrtle Beach condos in the same development as his] so that he could get a discount on his unit.”

Bishop, said Horowitz, “is motivated by his self dealing sometimes on the back of his clients.”

By Dan Christensen, BrowardBulldog.org

Broward County Courthouse Photo by Georgia Guercio

An investigation involving a Broward Sheriff’s Office reality TV show has led to the release of a state attorney’s list of 137 current and former police officers and deputies whose testimony may be suspect because of their troubles with the law.

The list includes officers who have been arrested or convicted of crimes like sexual battery, attempted murder, fraud, drug trafficking and official misconduct. Others are on the list because they are under investigation regarding fatal shootings, the falsification of records, perjury, traffic fatalities, theft and other crimes.

Every police agency in the county, except for the three smallest departments, has at least one officer on the list. The county’s largest police agency, the Broward Sheriff’s Office, has the most with 57 deputies, followed by the Fort Lauderdale Police Department with 19 officers. Hollywood and Lauderhill each have eight officers on the list. Five men and women on the list could not be identified by department.

Since Oct. 1, prosecutors have added 23 officers and deputies to the list – a rate of nearly two names a week. The list, which you can see here, is through Dec. 22.

The so-called “Brady List” includes the names of all officers listed as “active” in the state’s computerized attorney notification system, whether their cases are “pending, open, closed, convicted or not,” said Broward State Attorney’s Office spokesman Ron Ishoy.

The list is named for a U.S. Supreme Court case, Brady v. Maryland, which established a legal doctrine requiring prosecutors to disclose exculpatory evidence in the state’s possession to defendants and their lawyers. The officers on the list are those about whom the state has information that may be favorable to the defense.

“They remain on the list because they could be subject to impeachment as potential witnesses in other cases,” Ishoy said. “The list is complete as of the day you received it as far as we know.”

In addition to the names of the officers, the list includes brief comments indicating why they are on it and the name of the prosecutor who put them there. Prosecutors make those calls “on a case by case basis as to whether the evidence is relevant under discovery rules detailed in the Florida Rules of Criminal Procedure,” Ishoy said. Prosecutors won’t comment on the open cases.

Most of the officers on the list are there for matters since the beginning of 2009, but some date to 2004. The list is dynamic, with names added and removed as prosecutors believe is warranted.

THE LIST BECOMES KNOWN

The existence of the list became known recently when it was mentioned in an August letter from prosecutors to Gerald Wengert, a Broward Sheriff’s deputy and star of the reality television show “Unleashed: K-9 Broward County, informing him that he is under investigation for falsifying records.

Broward Bulldog obtained the list using Florida’s public records law.

Broward Public Defender Howard Finkelstein said he was unaware such a list existed. After being told how many officers and deputies were on the list, he said he believes the state has undercounted.

“My office has a list that’s larger than that using our own information. The State Attorney’s Office always takes a restrictive rather than an expansive view of what constitutes Brady material. If they say it’s about 130 it’s my guess it’s probably more like 450,” Finkelstein said.

Ishoy said the Brady List is a printout of the latest data that his office has collected and made available to defense lawyers for several years. He said the state’s release of information goes “far beyond” what the law requires.

“It has evolved as our computer system has evolved,” he said. “We did it to enhance efficiency and consistency in disclosing this information.”

Still, the Brady List assembles in one place the names of problematic officers, including officers under investigation in police shootings and other matters that have not previously been made available to the public at large.

The list shows that prosecutor-led grand jury investigations of fatal police shootings often take years before they are concluded.

As of Dec. 22, 30 officers from around the county were under scrutiny by the grand jury in cases in which a person died as a result of police action. Eleven of those officers have been under investigation since 2009. One officer, Pembroke Pines Sgt. James Helms, is under scrutiny in two death cases opened in 2009 and 2011.

“NO PRIORTY” FOR POLICE SHOOTING PROBES

Veteran Fort Lauderdale civil rights attorney Barbara Heyer said that such delays are unfair and intolerable for cases that should be among the State Attorney’s top priorities.

“These police shooting cases are just tagging along, there is no priority” she said. “The families of these victims, and they are victims, have to have some type of closure. To constantly hear prosecutors say this is ‘under investigation’ provides no one with anything.”

In June, Public Defender Finkelstein sent a letter to the Justice Department complaining that Broward State Attorney Michael Satz had failed to adequately investigate and prosecute criminal conduct by police. He alleged that was, in part, a “misguided” attempt to “insulate the state from its obligations under Brady.”

Finkelstein said his office reviewed dozens of prosecutors’ memos closing out investigations of officers without the filing of charges, and asserted that a there is a “double standard of justice in Broward County – one for law enforcement and the connected, and one for everyone else.”

“The state declines any prosecution against law enforcement unless there is a ‘reasonable likelihood of conviction.’ For my clients and other citizens, corroboration is not necessary to file charges and a ‘reasonable likelihood of conviction’” is measured to a lower standard, Finkelstein said.

Satz has called Finkelstein’s assertions “false and irresponsible.”

By Dan Christensen, BrowardBulldog.org

Deputy Jerry Wengert and Sheriff Al Lamberti

A Broward Sheriff’s Office deputy and reality television star is under criminal investigation for falsifying records, Broward Bulldog has learned.

Deputy Jerry Wengert, who starred in TLC/Discovery Channel’s “Unleashed: K-9 Broward County,” was notified of the probe in August by the prosecutor in charge of the State Attorney’s public corruption unit.

“This letter is to inform you that you are the subject of an investigation for falsifying records,” said Timothy Donnelly. “At the conclusion of the investigation you will be notified of the results.”

What prompted the investigation has not been made public, and Donnelly declined to discuss the matter on Monday.

“It’s still an open investigation so I can’t talk about it,” he said. Investigations of deputies and police officers typically begin at the agency where they work, he said.

Wengert, a deputy since 1997, remains on regular K-9 patrol duty. He declined comment through a police spokesman.

Wengert’s Internal Affairs file shows that he has been investigated at least five times since 2006. In each of those cases, he was either exonerated or it was determined that a complaint against him was unfounded. None involved the falsification of records.

If BSO has an open internal investigation, it is exempt from disclosure under Florida’s public records laws, a BSO spokesman said.

Sheriff Al Lamberti declined comment about Wengert through a spokesman.

“Unleashed” is a six-part series that aired nationally in April. The show “is a candid look into the dangerous, yet surprisingly funny world of a K-9 unit –from foot chases and guns to bathroom breaks and dog food runs,” according to its Facebook page.

The focus of the show is Wengert, his dog Bali, and partner Detective Geoff Brown – who is not under investigation.

“Whether they are chasing down armed carjackers, fleeing drug dealers or tracking down an elusive cat burglar, they are tireless in their efforts to bring suspects to justice while maintaining a sense of humor,” the show’s publicity says. TLC/Discovery has not said whether more shows will air.

Wengert and Brown also have made several public appearances with Lamberti around the county as he seeks re-election – including a Coconut Creek restaurant on Nov. 19. Joining them were Deputies Shelunda Cooper and Julianne “Julie” Bower, BSO TV stars from the cast of TLC/Discovery’s “Policewomen of Broward County.”

Lamberti formally filed to run again on Oct. 4.

In June, Broward Bulldog reported that “Policewomen” star Bower was chosen for her role despite her involvement in a departmental scandal while serving under Lamberti’s predecessor Sheriff Ken Jenne.  The scandal centered on falsifying crime statistics in order to make the department and it deputies look good.

Specifically, BSO Internal Affairs records state that a May 2004 internal audit found that Bower had “exceptionally cleared” 10 car burglaries by reporting that an unidentified juvenile suspect had confessed to committing those crimes. The audit, however, found the youth was jailed when at least one burglary occurred “and therefore could not have committed this crime.” As a result, Bower was cited in 2007 for failing to meeting BSO standards and was docked a day’s pay.

Wengert was BSO’s employee of the month in May 2008 for his apprehension of burglary suspects with his dog, Oozi. Two months later, the 7-year-old Belgian Malinois was shot and killed while helping to catch another suspect

Broward State Attorney Mike Satz has assigned prosecutor Deborah Zimet to handle the criminal investigation of Wengert. Zimet is a longtime homicide prosecutor who joined the corruption unit a month ago.

Gerald Wengert was officially informed of the state’s investigation on Aug. 18.

“While the investigation is pending, your name will be added to the ‘Brady List’ maintained by the State Attorney’s Office. At the conclusion of the investigation you will be notified of the results,” Assistant State Attorney Donnelly wrote.

The term Brady List refers to a list of the names of police officers about whom the state has information that would be favorable to the defense and could be used to impeach an officer’s testimony and undermine his credibility. The state has a legal duty to disclose such information.

The Brady List is apparently a recent development at the State Attorney’s Office.

“I haven’t heard of it, but I’m glad there is one and I want a copy,” said Broward Public Defender Howard Finkelstein.

Broward Bulldog has filed a public records request seeking a copy of the list.

MONDAY UPDATE:  A Broward judge Monday declined to force prosecutors to turn over to a criminal defendant a copy of the television talent contract of a sheriff’s deputy who arrested him on camera in January.

Instead, after hearing the state say it doesn’t have the talent contract, Judge David Haimes suggested that the Broward Public Defender’s Office issue a subpoena for the document to the companies that produce Deputy Andrea Penoyer’s show,Policewomen of Broward County.

“It is likely we’ll do that, but first we’ll explore the judge’s ruling today to determine whether we have any appellate remedy,” said Assistant Public Defender Gordon Weekes.

The show’s producers, who have resisted disclosure of the contract claiming it is a “trade secret,” are Discovery Communications and RelativityREAL LLC. The cable television show appears on the TLC network.

Company attorney Michael Wrubel would not comment.

By Dan Christensen and Wanda DeMarzo, BrowardBulldog.org

Reality television meets reality in a Broward courtroom Thursday when defense lawyers will seek to compel prosecutors to produce a copy of a BSO deputy’s “talent” contract with the producers of the show Policewomen of Broward County.

The corporate rights of the TV show’s production company is pitted against the civil rights of a man arrested on the program in a small time drug bust.

In a twist, prosecutors aren’t the ones making the arguments to keep Deputy Andrea Penoyer’s contract under wraps. Rather, lawyers for the television shows’ producers – Discovery Communications and RelativityREAL, LLC –will argue the company’s claim that protecting trade secrets should trump a defendant’s right to discover helpful information for his legal defense.

Broward’s Public Defender’s Office wants a look at the contract of Broward Sheriff’s Office Deputy Andrea Penoyer, one of the TV show’s stars. The office also seeks the show’s contracts with other deputy-stars in its defense of six additional defendants.

Penoyer, who is paid an unknown amount to appear on the show, arrested defendant Kevin E. Wallace on camera last January for selling a small amount of cocaine in a buy-bust in Pompano Beach. She’s listed as a principal witness for the state.

But when prosecutors produced background information about the case to the Public Defender’s Office – material the state must turn over to criminal defendants – Penoyer’s Policewomen contract wasn’t included.

“The Office of the State Attorney…has effectively relinquished its discovery obligation to a tabloid TV show,” say court papers filed by Assistant Public Defender Gordon Weekes. Weekes called Policewomen of Broward County, which appears on the TLC cable television network, “train-wreck television that exploits victims and arrestees alike for shock value and ratings.”

Authorities don’t have a copy

Representatives for Broward State Attorney Michael Satz and Sheriff Al Lamberti each said Tuesday that they can’t turn over the contracts because they don’t have copies of them.

“We have no objection to the contracts being presented. It will be our position that, if the documents are at some point presented, the court should inspect the documents to determine if they do or do not contain favorable evidence to the accused,” said Satz spokesman Ron Ishoy.

“We did not scrutinize their contracts. Our 5,600 employees occasionally enter into contracts in their private lives without consulting BSO legal advisors or administration. It is their responsibility to avoid conflicts of interest,” said BSO spokesman Jim Leljedal.

Wallace’s defense contends his arrest is “inextricably intertwined” with the show, and wants to review the contract’s terms and determine whether the detective had any hidden conflicting interests.

“Entertainment contracts often lure talent with money awards for benchmarks on performance, fan base, number of viewers, renewal options, licensing, and the possibility of spin-off series. The defendant is entitled to know the details of Penoyer’s contract,” court papers say.

Nova Southeastern University law professor Bruce Rogow, a veteran criminal defense lawyer agrees.

“They are entitled when the contract relates specifically to the officer who makes the arrest,” Rogow told Broward Bulldog. “The state should make arrangements to get it.”

The Public Defender’s Office represents seven defendants charged with various crimes during the show. Penoyer and two other deputy/stars, Julie Bowers and Erika Huerta, were hit with subpoenas demanding that they produce their contracts.

Bowers and Huerta talked with defense counsel about complying, but ultimately didn’t after speaking with Dana McElroy, a Fort Lauderdale media attorney who represents Discovery Communications, court papers say.

McElroy was out of town and unavailable for comment. Her co-counsel, Michael Jay Wrubel of Davie, declined comment.

Not a new battle

Discovery has yet to formally reply to Wallace’s motion to compel, which was filed last week. But in another small drug sting case that was filmed involving defendant Neal Weinstein, in which Penoyer was one of several arresting officers, the company argued that the defendant’s claim of need to see Penoyer’s contract was a “red herring.”

“Deputy Penoyer is not such an important prosecution witness that defendant’s inability to obtain the documents will impermissibly impinge upon his Sixth Amendment rights,” the company’s court filings say.

Why is the defense trying so hard to keep the contracts out of the public record?

“Such contracts are jealously guarded by the producers because of the fierce competition in the reality show industry,” and contain “conditions that are not in any sense obvious,” the company’s filing says.

The hearing is scheduled for 8:30 a.m. Thursday before Broward Circuit Judge David Haimes.

By William Gjebre, BrowardBulldog.org 

Broward County Jail

A former Broward County Jail inmate says he became impotent after he was forced to swallow a powerful anti-psychotic drug he wasn’t prescribed, then suffered a painful erection for five days before nurses and jailers finally responded to his pleas for help. 

A doctor eventually ordered Randon (Randy) P. Campbell rushed to the emergency room at Broward General Medical Center for treatment of priapism, a painful long-lasting erection. As a result of the medication errors and delay in treatment, Campbell was forced to undergo multiple surgeries and was later “diagnosed with permanent impotency,” court papers say. 

Court documents say that BSO correctional officers and a nurse laughed at Campbell after he sought help for the painful, unwanted and embarrassing condition that he attempted to hide by wearing his shirt untucked. The amused nurse allegedly told him to “work it off.” 

Campbell, 46, recently settled his 2008 lawsuit against Broward jail healthcare provider, Armor Correctional Health Services Inc. The terms are confidential, and the company’s lawyer declined comment. Now, Campbell is pressing on with a potentially big money civil action in circuit court against the Broward Sheriff’s Office. 

Sheriff Al Lamberti said the BSO will not settle. 

“Armor settled. We didn’t,” Lamberti said. “We don’t think we did anything wrong.” 

Attorneys for both sides – Daniel Harwin for Campbell and William Tucker Craig for BSO – declined comment. 

A judge refuses to dismiss 

Six weeks ago, in a parallel federal civil rights suit in Fort Lauderdale, Campbell’s case appeared to take a significant step forward when a judge denied BSO’s request to toss the case out of court. 

“The Court finds that it would be possible for a jury to conclude that Defendant acted with deliberate indifference in delaying plaintiff’s medical treatment,” U.S. District Judge William J. Zloch stated in his March 28 order. 

The federal case was set to be tried this week. But last week, for strategic reasons not explained in court papers, the two sides jointly agreed to dismiss that case. Instead, they will fight it out in state court. 

Court records outline the events surrounding the case. 

Campbell’s ordeal occurred while he was a pre-trial detainee in the county jail from August 1, 2005 through March 24, 2006. According to the BSO media relations office, Campbell was in jail for violating an injunction in a domestic violence case. 

A doctor had prescribed Campbell, then 40, to receive Clonidine (0.2 mg) daily for hypertension and Vistaril, as needed, for anxiety. Those were the only drugs he was prescribed to receive while in jail. 

On Dec. 1, 2005, however, Campbell’s nighttime medications included another drug, chlorpromazine, which is also known as Thorazine. Campbell immediately informed the nurse the medication was not intended for him. Nonetheless, he was ordered to take it by the nurse and a guard who are not identified in the complaint. 

Court records indicate the Thorazine was supposed to go to another inmate with the last name of Campbell. 

Shortly afterwards, Randon Campbell began feeling ill, describing dizziness and lightheadedness. 

The next day, Campbell awoke with an erection that lasted for five days. Priapism is both a known and common side effect of Thorazine, the lawsuit said. 

When the nurse handed out that morning’s medication, Campbell was again told to take the Thorazine. He gave the nurse a written note that had developed a sustained and painful erection, and, to explain his untucked shirt, informed guards. 

“The guards laughed and refused to alert the medical staff,” the lawsuit said. 

That evening, Campbell was again offered the Thorazine, but didn’t take it after finally convincing the nurse of the error. He wasn’t given it again. 

Still, Campbell’s painful erection continued. And despite his pain, and his repeated requests for help, no action was taken to provide him with appropriate care, the lawsuit said. Instead, nurses gave him Advil. 

Campbell “begged” for help 

Finally, on the afternoon of December 6, the pain had become unbearable. Campbell could no longer walk. He “begged” a guard to take him to the infirmary, the suit said. 

The guard agreed, and took him to Armor Correctional’s clinic where doctors quickly had Campbell transferred to Broward General. 

Emergency room doctors diagnosed priapism. Campbell underwent initial surgery and ultimately suffered from what the lawsuit calls “severe residual erectile dysfunction.” 

The state lawsuit against Armor alleged that its negligent care forced Campbell “to endure needless multiple and painful surgeries.” Specifically, it alleged that Armor administered “drugs that were not prescribed for him” and failed “to render timely medical attention and treatment for the side effects,” it said. 

Armor denied those accusations before the settlement. 

The presiding circuit judge in the state case is Mily Rodriguez-Powell. 

The federal lawsuit alleged BSO “deprived Campbell of his rights, privileges and /or immunities secured by the Constitution of the United State and Florida by denying him access to medical care.” 

BSO has denied any wrongdoing. 

Armor, based in Miami, has provided medical services to Broward County operated jails since 2004. Recently, Armor was a finalist to provide healthcare services to inmates at Miami-Dade County Corrections and Rehabilitation facilities, but lost out to Prison Health Services, a Tennessee-based company. The Miami-Dade contract, being negotiated now by the parties, could run as long as 11 years. 

Dan Christensen contributed to this report. William Gjebre can be reached at wgjebre@browardbulldog.org

By Dan Christensen, BrowardBulldog.org

Howard Finkelstein

Accusing Broward’s courts of failing to protect the civil rights of the poor and homeless, Broward Public Defender Howard Finkelstein has asked Chief Judge Victor Tobin to “instruct the judiciary” to make sure that indigents arrested for violating municipal ordinances have lawyers.

In a Jan. 6 letter, Finkelstein accused the courts of allowing Broward’s cash-strapped cities to “systematically” ignore their legal obligation to pay for defense lawyers to represent poor people arrested for minor city crimes like panhandling or carrying an open can of beer.

“Both entities are responsible for the denial of due process and the prolonged incarceration” of those accused, said Finkelstein. He urged immediate action by the courts to prevent a potentially costly class-action lawsuit.

“If the cities do not fulfill their legal and moral obligation, the courts should dismiss every case presented,” he said. “If our cities wish to use the system, they need to pay. Otherwise, they need to stop arresting poor homeless people.”

Cities adopt and enforce such ordinances to promote the “quality of life” for residents in public places.

Finkelstein’s office has not represented indigent defendants arrested for municipal violations since the Legislature changed the way such services are paid for by the state several years ago. Instead, cities are responsible for appointing a municipal defender.

The Public Defender’s Office estimates that as many as 50 indigent defendants accused of municipal crimes come before Broward judges every week.

Court rules in Florida require the appointment to occur on or before a defendant’s first appearance in front of a judge. But Finkelstein says that’s not happening and that defendants often plead guilty to a deal that gets them out of jail based on time they’ve already served.

“There has never been an appearance by any city public defender on behalf of these defendants at magistrate court,” said Finkelstein, who is best known locally as “Help Me Howard” on Channel 7. “These defendants are accepting pleas without consulting an attorney even though the nature of the charges suggests many of them may suffer from mental illness.”

In an interview Monday, Judge Tobin said Finkelstein’s letter is the first he’s heard about a lack of representation for indigent representation in municipal cases.

“I was under the general impression that a great many cities had either stopped arresting for municipal ordinance violations or were using a similar state statute, or had pooled together or made some arrangement with John Fry,” Tobin said.

Fry said several cities, including Fort Lauderdale and Hollywood, had paid him on a non-contract basis to handle such cases. He said there was no process by which cases were assigned and that judges would appoint him if an indigent defendant requested an attorney, or a concerned public defender tipped him to a defendant who needed help.

“It was case by case,” said Fry, who was sworn in Monday as a Broward County Court judge. His defense duties have been handed to Fort Lauderdale lawyer Steven Schaet.

But some defendants fell through the cracks.

Finkelstein’s letter cites the example of Benigno Fernandez who was arrested by Hollywood police on Nov. 30 on a charge of “soliciting a charitable donation without a permit.”

Benigno Fernandez

Fernandez didn’t show for his arraignment, and a judge issued a warrant with a $150 bond. He was picked up Dec. 29 and spent eight nights in jail until a judge released him – shortly after Finkelstein’s letter.

Before that Chief Assistant Public Defender Lynn DeSanti contacted an attorney for the city of Hollywood about Fernandez’s plight.

Finkelstein said the attorney “did not know who the city’s public defender was and seemed unconcerned about Mr. Fernandez’s incarceration. She advised Ms. DeSanti that, if she was so concerned, she could arrange to have him placed on the docket herself.”

He termed the city’s response “both outrageous and illegal.” City Attorney Jeffrey Sheffel did not respond to a request for comment.

In 2009, Fernandez spent 39 days in jail without the benefit of a lawyer on a Hollywood charge of carrying an open container of alcohol. He was later adjudicated guilty and sentenced to time served.

“The court did nothing to protect Mr. Fernandez or sanction the City of Hollywood. It simply looked the other way,” Finkelstein wrote.

The letter also informed Judge Tobin that Broward’s cities are not, as required by state law, paying the cost of housing nonviolent municipal offenders they feed into the jail system.

Broward Sheriff Al Lamberti said Finkelstein is correct, “They’re not paying.”

The sheriff said it now costs the county $113 a day to keep municipal offenders in jail. The tab for Fernandez’s recent eight days in jail was $904; in 2009, it was over $4,000.

Lamberti said the burden on the county is significantly less than a few years ago. He credited a push several years ago to lower the jail population that led to the release of hundreds of municipal defendants.

By Dan Christensen, BrowardBulldog.org

Tom DeLay

Adam Kidan, the Broward State Attorney’s star witness in the pending Gus Boulis murder trial, has been subpoenaed to testify this month in the Texas election law conspiracy trial of the once powerful Republican House Majority Leader Tom DeLay.

Kidan, the former owner of SunCruz Casinos who now lives in Stony Brook, N.Y., was summoned to testify about “social interactions” he witnessed in DeLay’s Congressional office between DeLay and the notorious former Washington lobbyist Jack Abramoff, of Miami-based Greenberg Traurig.

“Adam Kidan can also testify to Thomas Dale DeLay’s presence in Jack Abramoff’s skybox at a Washington Redskin NFL game,” says the subpoena, filed Oct. 18 in Travis County Court. (more…)

Jerry Frank Townsend

By Dan Christensen, BrowardBulldog.org

Confessing to a murder or rape you did not commit is unthinkable.

But as DNA testing continues to exonerate convicted murderers and rapists, new research shows that nearly 20 percent of those innocent inmates falsely confessed to the crimes that sent them to prison.

More than 250 convicts nationwide have been cleared by DNA testing. University of Virginia law school Professor Brandon L. Garrett’s study found that more than 40 of them confessed falsely, and seeks to explain why.

How this happens is a question that haunts the state of Florida. (more…)

Gus Boulis

Anthony Moscatiello, top, Anthony Ferrari, left, and James Fiorillo

By Dan Christensen, BrowardBulldog.org

It was Fort Lauderdale’s murder of the decade: the 2001 gangland-style slaying of day-cruise casino cruise ship kingpin Konstantinos “Gus” Boulis.

On Oct. 1, it’s coming to a movie theater near you.

The three men charged in 2005 with conspiring to kill Boulis have yet to go to trial in Broward Circuit Court. The one who’s out on bond – Anthony “Big Tony” Moscatiello – will have the opportunity of watching both the murder and himself portrayed on the silver screen.

Bagman is about hotshot Republican super-lobbyist Jack Abramoff and the nation’s biggest political scandal since Watergate. Actor Kevin Spacey plays Abramoff. (more…)