Decision to drop police beating case spurs claims of political motives
By DAPHNE DURET
Palm Beach Post Staff Writer
Updated: 10:50 a.m. Sunday, Dec. 4, 2011
Posted: 9:43 p.m. Saturday, Dec. 3, 2011
WEST PALM BEACH — In 2009, while newly elected State Attorney Michael McAuliffe was still building a reputation for cracking down on public corruption, his office charged two former West Palm Beach police officers with battery and official misconduct in the beating of a handcuffed robbery suspect captured on video.
Prosecutors actively pursued the case until September, when they dropped all charges against one officer and allowed another to plead to a misdemeanor. The move prompted speculation that McAuliffe dropped the case to garner favor with the local police union for his upcoming re-election bid. Three weeks later, a retired police officer filed an ethics complaint with the Florida Commission on Ethics against McAuliffe, citing a meeting between him and union officials shortly before the case ended as evidence.
McAuliffe and prosecutors in the case deny the allegations. At the time the charges were dropped, they attributed the decision largely to an enhanced version of the police video a defense attorney played for them in early September . They say it shows that the suspect provoked the officers’ attack. But a copy of the new DVD obtained by The Palm Beach Post and reviewed by four experts shows no discernible difference from the previous enhancement that prosecutors have had since early 2010.
Dr. George Kirkham, whom prosecutors once planned to use as an expert witness in the case, watched both the 2010 video and the new enhancement but said he saw no difference between the two. Neither did three other experts The Palm Beach Post asked to review the video.
“I don’t know what they saw, but there’s no difference here to me,” Kirkham said. “It’s unfortunate this case ended the way it did.”
But McAuliffe last week said he felt as confident as ever that he and prosecutors in the case made the right decision. McAuliffe said union officials did ask him to look at the case again, but he and other prosecutors began considering dropping the charges only because parts of the case had begun to unravel.
And though he and prosecutors cited the defense video when they dropped the charges, McAuliffe said the enhancements became important only when he viewed them in light of the case’s other problems.
“As inartful as the process became, the process was correct,” McAuliffe said.
Violent encounter
The May 2008 recording shows the end of the encounter between former officers Louis Schwartz and Kurt Graham with Pablo Valenzuela outside a West Palm Beach CVS pharmacy Valenzuela had just robbed of prescription pills. Valenzuela had attacked Schwartz with pepper spray in an attempt to get away. The recording begins when the officers stop Valenzuela in the parking lot, guns drawn.
Valenzuela in the video appears to respond to the officers’ commands to lie down and spread his arms. Graham then steps in, handcuffs Valenzuela and appears to place his right knee between Valenzuela’s shoulder blades to keep him down. The footage shows Schwartz as he walks up, then shows him looking at Valenzuela while Graham delivers a punch to his head. Schwartz then immediately kicks Valenzuela in his side, and Graham delivers a final kick to Valenzuela’s head that lifts his body off the ground.
The officers, explaining why they had used force, said Valenzuela had tried to bite Graham .
Schwartz’s attorney, Doug Duncan, said that he and Graham’s attorney, Michael Salnick, would have used the alleged bite as a defense if the case had gone to trial. Duncan presented the latest enhancement to McAuliffe, Chief Assistant State Attorney Paul Zacks and prosecutor Danielle Croke in a Sept. 8 meeting.
Croke, who wrote a memo detailing the reasons the charges were dropped Sept. 21, said in it that although prosecutors previously did not believe Valenzuela did anything to trigger the attack, she now thought a “reasonable fact finder” would likely agree with the defense’s version of events.
But Kirkham, along with a West Palm Beach police sergeant interviewed during the department’s internal affairs investigation into the incident, finds the theory implausible. In fact, Kirkham said he told prosecutors in his report that he believed that Valenzuela’s head was actually turned away from Graham at the time the attack began, a theory Valenzuela corroborated in his interview with internal affairs investigators.
Prosecutors ultimately decided not to use Kirkham on the case and found another expert several months before the case ended, but Kirkham said he had no idea he had been replaced until a Post reporter told him two weeks ago.
Richard Lichten, a former Los Angeles County sheriff’s lieutenant who has investigated more than 1,800 use-of-force cases as an expert, also viewed both enhancements and saw no marked difference. Lichten said even if Valenzuela tried to bite Graham, the proper response would have been to back away.
“That’s not to say that there haven’t been cases where handcuffed suspects haven’t harmed or even killed officers,” Lichten said. “But in this case that (backing away) would have been the appropriate thing to do.”
Prosecutors dropped all the charges against Schwartz. Graham pleaded guilty to a single misdemeanor battery charge for the last kick he made to Valenzuela’s head. He received no jail time but was ordered to pay court costs and attend an anger management course. Graham resigned from the department shortly after the incident, and Schwartz was fired.
Among the problems in the case, McAuliffe said, was that the testimony of the West Palm Beach lieutenant who had been the watch commander on the night of the incident had become increasingly inconsistent over the course of at least two depositions.
Also, while investigators initially reported that Schwartz appeared with Graham on video during a conversation with a supervisor where Graham allegedly made false statements to justify the attack, it was later discovered that Schwartz wasn’t there. Those factors led prosecutors to believe a jury might find Schwartz’s bite defense credible.
McAuliffe offered no timeline on when these issues came to light, but paperwork in the case indicates that those facts had been known to prosecutors for months, at least, before the charges were dropped.
Though they decided that Graham’s final kick to Valenzuela’s head was the only criminal act in the case, McAuliffe said the entire incident was an improper use of force. McAuliffe said his office has prosecuted more than 40 law enforcement officers since 2009.
Zacks said the decision to drop charges was largely one he and Croke made with McAuliffe’s approval. Zacks said he believes the decision was “100 percent the right decision” and said the experts’ opinions are just that.
“Maybe their eyes are better than mine,” he said regarding the enhancements. “I would just say that reasonable minds can disagree on that.”
Croke appeared to be actively pursuing the Schwartz and Graham cases until September, according to internal emails obtained by The Post. Her messages show she was making arrangements for a deposition of Charles Key, the new expert, and she and the defense attorneys had agreed that the week of Dec. 5 would be best for trial.
Croke, who left the state attorney’s office nine days after the charges were dropped, now works in private practice. She said her departure from the office after more than seven years as a prosecutor had nothing to do with the case.
Though Croke cited the enhanced video in her memo explaining why the charges were dropped, prosecutors said they had not kept a copy of the video when The Post requested it. They produced a copy after they and Duncan received letters requesting it from The Post’s attorneys.
In October, retired Riviera Beach police Cmdr. Rick Sessa filed the ethics complaint against McAuliffe. The complaint is unresolved, but McAuliffe says he is confident that it will be dismissed.
Police union’s view
Police Benevolent Association President John Kazanjian confirmed in October that he met with McAuliffe and urged him to drop the charges in what he saw as a flawed case. The meeting was to discuss unrelated law enforcement issues, Kazanjian said, and there was no discussion of a PBA endorsement. The PBA has not made any yet in the upcoming election, Kazanjian said.
Prosecutors say Sessa’s complaint is the result of a vendetta he has against the state attorney’s office based on his personal history with the office . Sessa denies that.
Valenzuela’s personal injury attorney, Rudy Gurrola, declined to comment on the case. No suit has been filed.
Roy Bedard, a Tallahassee-based use-of-force expert who also saw no difference in the videos, called the use of the new enhancement “sleight of hand.”
“Whether or not it was for political gain I wouldn’t speculate, but the tactic that is used by the state attorney’s office is somewhat despicable,” he said. “What’s really happening is that they’re showing you something that is slightly different from what they had but shows nothing you couldn’t see before.”