By Dan Christensen, BrowardBulldog.org
A Fort Lauderdale Police internal inquiry into the out-of-state arrest of a street crimes unit sergeant did not follow departmental procedures for conducting such investigations.
Internal Affairs guidelines say investigators should obtain and review police reports, probable cause affidavits, booking sheets and other information about such incidents. Sworn statements are to be taken from witnesses, including the accused officer, “as soon as possible.”
None of that was done after Sgt. Jerald Fuller was arrested on July 19, 2009 when police were called to a “disturbance” at a private home in Somerset, New York.
Departmental rules also state that completed Internal Affairs investigations are to be submitted for review to both an assistant police chief and the chief of police.
Police files do not indicate that was done either.
As Broward Bulldog reported on May 24, Fuller’s arrest was erased from an Internal Affairs report maintained in a police database. The purged report was later released to comply with a Public Records Act request by the Broward Public Defender’s Office.
It can be a crime in Florida to alter a public record, whether a paper report or an electronic database. But state prosecutors declined to investigate, drawing a rebuke from Public Defender Howard Finkelstein, who had asked for a state inquiry.
Copies of the original and changed versions of the report were leaked to one of Finkelstein’s investigators in February. The Public Defender’s Office soon requested the Internal Affairs report from police to defend a suspect arrested by city police.
POLICE ACKNOWLEDGE PURGE
Police Captain Rick Maglione has acknowledged changing the report when he headed Internal Affairs.
He explained he did so to comply with a New York municipal judge’s orders that had dismissed and sealed the case four days after Fuller’s arrest. He did not include that explanation in the file.
Maglione also told Broward Bulldog that he did not seek to obtain New York police or court records to verify the facts surrounding Fuller’s arrest because those documents were “not obtainable” due to the judge’s sealing order.
New York criminal procedure, however, allows both the person accused and police agencies access to sealed records.
Captain Rick Maglione
Maglione said he relied on assurances he got from Fuller’s New York lawyer, George Muscato, and an official he did not identify in the Niagara County, Somerset Town Court, District Attorney’s office
“Everything I had was self-reported (by Sgt. Fuller). I was satisfied with that because I was also assured no crime had occurred,” said Maglione, who is now a top aide to Chief Frank Adderley.
VETERAN COP AND A DISTURBANCE
Fuller is a 19-year veteran and member of the police department’s controversial Northwest Raiders drug unit. He notified his superiors of his arrest.
In his two-paragraph report dated August 10, 2009, Maglione, a former Raider, identifies himself as both the investigator and supervisor on the Fuller inquiry.
It states that a neighbor called the police about a disturbance at a local residence involving Fuller, his brother “and another individual known to the Fuller family.”
“It was initially determined that Sergeant Fuller and his brother were responsible for some minor damage to the other individual’s property,” Maglione wrote.
Basic information such as the address where Fuller was arrested, the time of day of the incident, a description of the damage, and even the criminal charge lodged against him are not included in Maglione’s report.
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 Dan Christensen, BrowardBulldog.org
A federal jury has awarded $175,000 to a former Miramar resident, now a state prisoner, who it found was brutalized while in Miami police custody in 2006.
Gerald Lelieve suffered severe internal injuries that nearly killed him when he was repeatedly kicked and stomped as he lay on the ground in handcuffs after his arrest on a drug charge, according to court documents and his Fort Lauderdale lawyer Greg Lauer.
The jury also determined the Miami Police Department set the stage for what happened through a “policy, practice or custom” of depriving suspects of their constitutional right to be free from its officers’ use of excessive or unreasonable force, and that the city was indifferent to the consequences.
On March 20, U.S. District Judge Cecilia Altonaga ordered the city to pay $100,000 in damages for Lelieve’s pain and suffering. The balance – including $50,000 in punitive damages – was assessed against Officer Odney Belfort for his use of excessive force “with malice.” Large damage awards against individual police officers are unusual.
Evidence focused on the city’s failure to adequately supervise and discipline Belfort. The city and Belfort, who denied assaulting Lelieve, have asked Altonaga for a new trial.
The jury of five men and three women listened to testimony for three days in mid-March, according to a transcript of the proceedings
They gave audience to Assistant Miami City Attorney Christopher Green as he declared in opening arguments, “This is a case about credibility, pure and simple.”
They watched as Miami Officer Odney Belfort took the witness stand and denied attacking Lelieve, and insisted he wasn’t even present during the arrest on Oct. 11, 2006 arrest. “I was not there,” Belfort said.
They heard two other officers back Belfort up under oath – including Maj. Keith Cunningham, who now heads of MPD’s North District.
But in the end the jury didn’t believe the police. They believed Lelieve, who told a very different story about his arrest.
“Everything corroborated what my client had to say. Their story didn’t make sense,” said Lauer, who tried the case along with Fort Lauderdale attorney Dion Cassata.
“The police were busting drug dealers, but it got to the point where the felt they could do whatever they wanted to do in the pursuit of drugs, including injuring people. It was like the Wild West. There was no oversight,” Lauer said.
Miami Police spokesman Maj. Delrish Moss declined comment saying the case remains in litigation. He referred questions to the City Attorney’s Office, which also declined comment.
Miami Police Major Keith Cunningham
COCAINE LED TO ARREST
Lelieve, 41, was an itinerant cab and passenger-van driver with a lengthy arrest record that includes mostly drug crimes, but also one serious assault. Public record show he has listed addresses in Miramar and Miami, although he gave an Orlando address at the time of his 2006 arrest.
Today, Lelieve is serving 6 ½ years in Florida’s Marion Correctional Institution for cocaine trafficking. He sold no drugs, but according to police was holding 59.6 grams when they arrested him driving away from a Little Haiti drug house. That’s above the 28-gram threshold where possession becomes trafficking under Florida law.
Without a lawyer, Lelieve later sued the city and Belfort for violating his constitutional rights. His complaints were dismissed four times until it was reviewed by the federal Volunteer Lawyers Project, which offers free representation to the indigent, and found to have merit.
Belfort and his partner, Desreen Gayle, were undercover “eyeballs” that evening, police slang for officers who conduct surveillance. They radioed a description of Lelieve to fellow officers in the city’s Crime Suppression Unit who took him down, despite his strong protests of innocence.
Lelieve heard an officer radio Belfort, apparently double-checking that they’d gotten the right guy.
Soon, Belfort appeared. “They asked him, ‘That’s him? He say yes,” Lelieve testified.
BEATEN SUSPECT HEARS A POP IN HIS STOMACH
Belfort was face up on the ground with his hands cuffed behind him as Belfort approached him. “He say I think I am slick and he started kicking me,” Lelieve said in broken English. “When he kicked me I feel something pop in my stomach.”
Lelieve, a native of Haiti who stands six-foot-one and weighs more than 200 pounds, couldn’t defend himself. “I tried to move my side, but he keep on kicking me…about seven times.”
“I recognized Officer Belfort when he kicked me. I will always remember his face,” Lelieve said.
Other members of the city’s Crime Suppression Unit, an elite drug-busting squad, did nothing to stop Belfort. But when the beating was finished one asked, “Why did he do that?” said Lelieve.
Helped to his feet and into a police van, Lelieve complained of pain. He briefly saw a doctor. “He just touched my stomach and he say I am all right,” Lelieve said. “He don’t even do an x-ray or nothing.”
But overnight in a holding cell at the Miami-Dade County Jail, Lelieve lay on the concrete floor and threw up. The following afternoon, a nurse sent him to Jackson Memorial Hospital by ambulance. He told medics the police had hurt him.
Dr. Mauricio Lynn saw Lelieve. He diagnosed blunt abdominal trauma, and found enough blood in his belly to fill a two-liter bottle. He operated to repair a large tear in his patient’s abdominal cavity. Lelieve spent more than a week in the hospital.
The city’s lawyers offered jurors no explanation as to how Lelieve came to be seriously injured while in police custody. Nor did they call to testify other officers who were present during the arrest.
The jury determined that Belfort acted with “malice or reckless indifference” when he employed excessive force on Lelieve. But it was their finding of Miami’s “policy, practice or custom” of allowing officers to get away with abusing suspects that formed the basis of the damage award against the city.
A HISTORY OF COMPLAINTS
Belfort, hired in 1994, has a history of complaints related to his use of force, abusive treatment, and improper procedures. His internal affairs profile lists 29 separate incidents from 1996 to 2007.
Most were not sustained. Lelieve’s lawsuit contended the city often failed to investigate such matters, routinely filing cases away as “information only” or “inconclusive.”
The jury heard details of three Internal Affairs cases in which charges against Belfort were sustained, but no discipline was imposed. Prosecutors were not told about the cases, Lauer said.
In one 1999 case that was aggressively investigated, Belfort’s behavior was similar to what Lelieve said happened to him. Belfort was accused of pepper spraying two men who didn’t get out of his way fast enough as he drove by in his patrol car on NW 64th Street at First Place. Belfort denied it, saying he wasn’t in the area at the time.
But investigators later determined his pepper spray canister had been used and that he hadn’t reported it. They also found a witness who said he saw Belfort spray the men after punching one of them twice.
“You all can’t get out of the way? You all think I’m playing?” Belfort said, according to the witness.
Belfort was found to have violated Civil Service rules that were grounds for dismissal. Instead, it was recommended he forfeit 30 days of sick time. In the end, no punishment was imposed, nor were prosecutors notified of the attack or Belfort’s attempt to cover it up.
In its defense, the city presented no evidence that Internal Affairs ever investigated Lelieve’s injuries – even after being put on notice by the filing of the lawsuit.
“Everything is kept in house, swept under the rug,” Lauer told the jury.
In an interview, Lauer described MPD Internal Affairs as essentially a charade.
U.S. District Judge Marcia Cooke
“It is supposed to give the appearance that they are doing something and that they want to keep violent cops off the street, but if you really look at them what they are doing is protecting each other,” said Lauer.
MIAMI POLICE CRITICIZED BEFORE
Miami U.S. District Court Judge Marcia Cooke said something similar in a scathing 2005 order rebuking the city about its officers’ excessive use of force in another civil rights case a year before Lelieve was brutalized.
Her order focused on an apparent pattern in which Internal Affairs justified police shootings “despite evidence to the contrary.”
Wrote Cooke: “The court is perplexed as to how this shoddy police work and repugnant behavior can continue, unquestioned. The facts show that this behavior continues because it is condoned by MPD supervisors, internal affairs and comrades in arms.”
Juries typically don’t explain themselves when they make findings after listening to the evidence. But the jury that heard Lelieve’s complaint appears to have shared Cooke’s thoughts.
Lauer said his client is “just happy to get his day in court and tell the jury what this officer did to him.”
State records show that Lelieve is due to finish his sentence on December 3. But he won’t be a free man; the U.S. Immigration and Customs Enforcement wants Lelieve detained while they move to deport him to Haiti.
Back in Miami, where the jury’s decision has gone largely unnoticed, a change in police culture does not appear to be on the horizon. City Hall hasn’t pushed for it. And the new police chief, Manuel Orosa, has a history that includes involvement in a notorious brutality case 23 years ago.
Orosa, a 31-year veteran on the force, was a sergeant in 1988 when a squad of Miami cops beat a drug dealer named Leonardo Mercado to death.
Orosa wasn’t on the scene of the beating, but he was the supervisor of six of the cops later charged in Mercado’s death. He was suspended with pay in 1989 for failing to preserve evidence in the case, and later testified for the defense in the cops’ trial.