Witness For The Prosecution
Posted on Saturday, 26 of July , 2008 at 8:32 pm
EXCLUSIVE
COMMENTARY
© By June Maxam
It must be one of the best kept secrets in Pinellas County—-something that people in the criminal justice system know and just don’t want to talk about.
But then that’s usually what happens in a cover up—a planned effort to prevent something from becoming public—to conceal, hide, whitewash, hush up.
It would also seem to be an enormous conflict of interest and subject to challenge by defense attorneys—that is if disclosure is made. It compromises whatever integrity there is left of the Pinellas-Pasco state attorney’s office.
Doing a search about the subject in the archives of the St. Petersburg Times, Tampa Tribune or other Florida newspapers in the Pinellas-Pasco County area of Florida will turn up empty.
Time after time, the office of Pinellas County state attorney Bernie McCabe closes out a case of death by a finding of justifiable homicide, finding that the police of the Sixth Judicial Circuit were justified in the killing of an individual, often with a bullet in the back or more recently, in the increasing deaths resulting by taser guns wielded by Pinellas County police officers.
And the crime scenes are processed by forensic scientists from the Pinellas County Sheriff’s Department who become witnesses for the prosecution.
McCabe’s office consistently refuses to prosecute charges, or even conduct a meaningful investigation, in cases involving police officer misconduct or persons of influence such as in the boating deaths of Palm Harbor’s Jimmy Spicer and St. Pete Beach’s Joey Turner, both of which involved underaged drinking and boating under the influence.
Perhaps McCabe’s most memorable lack of prosecution is in the Terri Schiavo case, the disabled woman who was ordered to die by a Pinellas County probate court judge.
Complaints of abuse, violations of court orders, exploitation, neglect and other allegations of criminal wrongdoing by Michael Schiavo were presented throughout the years to Pinellas County and state law enforcement agencies from the time of Terri’s mysterious collapse in February, 1990, until her death on March 31, 2005, but were thwarted by McCabe, attorney general Charlie Crist and Pinellas County Sheriff Everett Rice, 25-year-friend of Greer.
A detailed complaint of abuse in the Schiavo case was made to the Florida Department of Law Enforcement in August, 2003 by attorney Patricia Fields Anderson, an attorney for the Schindler family. The North Country Gazette learned that Mark Dubina, FDLE special agent supervisor, Tampa Bay Regional Domestic Security Task Force supervisor and Homeland Security advisor to then Gov. Jeb Bush, asserted that he was told by his superiors to “shut down” his investigation into the Schiavo case, to close his file and turn it in. He says that McCabe allegedly ordered that all criminal investigations in regard to the Schiavo matter, including the FDLE investigation, be shut down. Such an alleged obstruction of justice would appear to be grounds for a federal investigation of McCabe and the Pinellas County state attorney’s office.
Mary Schindler, Terri’s mother, says that Dubina told her that Guy Tunnell, former FDLE commissioner, told Dubina if he didn’t close his investigation into the Schiavo case, that he would be fired. Ultimately it was Tunnell who was fired.
Allegations of wrongdoing in crime scene investigations and a lack of prosecution have long been levied by victims’ families against the State Attorney’s office as well as the county medical examiner’s office, offices which work hand in hand with the forensics division of the Pinellas County Sheriff’s office.
Former Bay County medical examiner Charles Siebert, fired for his handling of the 2006 boot camp death of black teen Martin Lee Anderson, had worked in the Pinellas County ME’s office. Siebert was accused of covering up an alleged 1977 beating by Clearwater police officers. According to a complaint filed with the state by John Niesen, brother of the late Michael Niesen who died at age 18 following an automobile accident in Clearwater, his brother’s death was caused by a beating by police officers, not from injuries allegedly suffered in an auto accident as Siebert ruled.
The Niesen death investigation would have been conducted by the Pinellas County state attorney’s office at a time McCabe was employed there. From 1972 through September, 1992, McCabe held the positions of chief assistant state attorney, executive assistant state attorney and division director in St. Petersburg and in Pasco County.
While the state attorney’s office claims in their reports of 1991, 1995 and 2001 that they interviewed witnesses and paramedics in the Niesen case, those witnesses and paramedics say that no one from any law enforcement agency ever interviewed them which would seem to indicate that McCabe’s office has allegedly falsified reports in an attempt to cover up a murder.
Once you learn about the whole situation as it exists in Pinellas County, as commentator Paul Harvey says, “And now you know….the rest of the story.
The Pinellas County Sheriff’s office provides forensic science specialist services to several municipal police agencies in Pinellas County—Clearwater, Gulfport, Kenneth City, Pinellas Park and St. Pete Beach. The sheriff’s office was involved in the Schiavo case, the cases of Turner and Spicer and in numerous police misconduct cases.
Although each police department presumably has several officers trained and certified as evidence technicians who handle evidence collection and preservation duties for minor offenses, the handling of major crime scenes, especially suspicious deaths and homicides, the sheriff’s department’s forensic science specialists collect and preserve the evidence, including fingerprints, and provide expert testimony in court in the prosecutions arising from those cases.
Wouldn’t it seem to be a major conflict of interest if the sheriff’s forensic science specialist providing the expert testimony in cases prosecuted by the Pinellas-Pasco State Attorney’s office of Bernie McCabe is his daughter?
Bernie McCabe seems to have been flying under the radar. Despite being in the State Attorney’s office since 1972 and State Attorney himself since 1992, believe it or not, both the Florida Ethics Commission and The Florida Bar claim that no complaints have ever been filed against McCabe, or at least that none are on file. Remarkably little media coverage exists of McCabe himself and even The St. Petersburg Times hasn’t done a feature story about his 36-years as a prosecutor.
Rumors have long circulated about an alleged molestation charge having been filed against McCabe in the early 90s, while he was working as the chief assistant state attorney under his predecessor Jim Russell. Neighbors of McCabe in the Bardmoor Golf community where he and his wife, Denise reside confirm there were allegations levied against McCabe and that he allegedly left the state attorney’s office for about a year while a settlement was worked out.
Reliable sources have confirmed for The North Country Gazette that a sealed court file exists concerning McCabe within the Pinellas County Court system which is not subject to public review. Doesn’t the public have to right to know about any allegations of wrongdoing against the county’s chief prosecutor and who investigated that case?
When Bernie McCabe offers his biography on the state attorney’s site, he says he’s the parents of two children, Jennifer and Patrick.
According to public records, both of McCabe’s children are adopted. Proceedings to adopt Jennifer, now 29, were filed in the Pinellas County Clerk’s office on April 28, 1980 while the McCabes adopted their son, Patrick, 23, in January, 1986.
McCabe’s associate in the state attorney’s office, Richard Mensh who at one time was Russell’s chief assistant prosecutor, represented the McCabes in the latter proceeding. There is no attorney listed for Jennifer’s adoption.
Mensh retired from the State Attorney’s office in 2003 after 37 years. Both Mensh and McCabe were members of the former Pinellas Sheriff Everett Rice’s committee in his failed attempt to become Florida’s Attorney General.
According to public records, Patrick was adopted through Catholic Social Services of the St. Petersburg Diocese. The Diocese was represented by DiVito & Higham of St. Petersburg.
It was Frederick Higham who Jennifer McCabe used as one of her references when she applied to become a forensics specialist with the Pinellas County Sheriff’s Department in June, 2001 at age 23. When asked in a questionnaire how he was acquainted with the applicant, Higham wrote that he’d known her parents for 30 years.
Higham had worked with Bernie McCabe as an assistant state attorney from 1975 until 1977.
The law firm of DiVito & Higham, of which Fred Higham is a principal, is general counsel for the Diocese of St. Petersburg of which Robert Lynch is Bishop, and the Diocese of Venice. The firm is also general counsel for Catholic Charities from whom McCabe’s son was adopted.
Lynch came to St. Petersburg in 1996 and was ordained as Bishop of the Diocese in January 1996. Although the Roman Catholic Church opposes euthanasia, Higham and his law firm contributed the maximum amount allowable to the reelection campaign of Sixth Circuit Court Judge Greer, the judge at the core of the Schiavo case who religiously and judiciously supported the efforts of Michael Schiavo and his attorney, euthanasia advocate George Felos to end Terri’s life by removal of her feeding tube.
According to the Division of Elections, in the past 10 years, Greer has been the only candidate to which DiVito and Higham contributed the maximum amount possible. The firm also contributed to the 2002 judicial campaign for Mark Shames, the judge who ordered the removal of Terri’s feeding tube in 1997 without notification to her parents and then authorized the use of the trust fund that was supposed to be used for the rehabilitation and therapy of Terri Schiavo to instead be used by Michael Schiavo to retain George Felos to achieve Terri’s death.
So much for the legal counsel of the diocese supporting church policy against euthanasia. So much for Bernie McCabe supporting church policy.
DiVito and Higham made their contribution to Greer at approximately the same time that Pope John Paul II had issued his statement disallowing death by starvation and dehydration. Firm principal Joseph DiVito represented Lynch in a 2002 sexual harassment claim brought against the Bishop by Bill Urbanski, former spokesman for the Diocese and former Lynch aide.
Despite being Terri’s bishop, Lynch never made an appeal for her life and in fact, issued a statement asking the public and Catholics, such as the McCabes, not to castigate Greer for his death position, virtually endorsing Greer’s decision to end Terri’s life.
http://www.dioceseofstpete.org/news.php?NID=9
It was the alleged false testimony of Fr. Gerard Murphy, a former St. Petersburg priest, which played a pivotal role in Greer’s death sentence for Terri at Michael’s behest and Murphy’s testimony came into play again at a Sept. 11, 2003 hearing when Greer was preparing to withdraw the feeding tube for the second time. Murphy was the priest sent by the St. Petersburg Diocese to testify at trial but his testimony did not reflect the church’s position on end-of-life issues.
Felos claimed that Murphy, who gave inaccurate and muddled testimony regarding euthanasia in Terri’s case at the 2000 trial, was the “end-of-life” spokesman for the St. Petersburg diocese. Felos attempted to use the priest’s statement to prove that the Catholic diocese was in favor of euthanasia. He also claimed that former retired Bishop Thomas Larkin, who supported Terri, agreed she should be allowed to die. Following his testimony, Fr. Murphy asked for a leave of absence from active ministry. At age 50, Murphy died on May 7, 2004, as the result of a traffic accident.
Lynch’s position was contrary to the official Vatican position. Cardinal Renato Martino, president of the Pontifical Council for Justice and Peace in Rome who had said in a March 7 statement, “Without the tube, which is providing life-giving hydration and nutrition, Terri Schiavo will die. But it is not that simple. She will die a horrible and cruel death. She will not simply die; she will have death inflicted upon her over a number of terrible days, even weeks. How can anyone who claims to speak of the promotion and protection of human rights – of human life – remain silent?”
Hours after Schiavo’s death was announced , Cardinal Martino called it “murder.”
“When you deprive somebody of food and water, what else is it? Nothing else but murder.”
Bishop Lynch’s position was also directly contrary to “the teaching of the Pope” who had written that food and water is not extraordinary support for life and that it cannot morally be withheld from a dying or incapacitated person.
Just days before Terri died on March 31, 2005, Lynch left the country. However, he left a statement posted on the Diocese website before Easter in which he didn’t seem particularly concerned about the death decree issued and that it was against the official position of the Vatican and the Pope
In her job application, when asked if she had “ever sold, purchased or offered for sale any illegal drugs”, McCabe’s daughter, Jennifer responded yes and admitted to possessing marijuana. But that was okay, Sheriff Everett Rice approved her employment and in August 200l, she was classified as a forensic scientist.
In September 2001, she requested an “exit clearance” from the Forensic Science Section to attend college. She obtained her associates degree from St. Petersburg College in 2003 and was reemployed with the sheriff’s department in February, 2003 with Rice signing an approval to hire her as a forensic imaging technologist.
Forensic imaging often involves photographs, videos and other crime scene impressions that are fragile and include subtle details that are difficult to see, crucial to criminal investigations.
In March, 2004, she requested a transfer from the forensic imaging section to become a forensic science specialist which was approved.
Her job evaluations indicate that Jennifer McCabe has had a chronic problem with her leave time, using up sick leave, vacation days and comp time and has been cited for being late for work, calling in sick in conjunction to her weekends.
The evaluations also indicate that her poor quality of videotaping of crime scenes has sent her for remedial training. At one accident scene, she failed to take any overall photographs of the vehicle, only showing a window of the vehicle and only one angle, according to her evaluations.
Court records show multiple subpoenas for McCabe’s daughter to appear as a prosecution witness for cases involving domestic battery, second degree murder, attempted murder, drugs, weapons charges, battery on a law enforcement officer, seduction of a child by computer and computer pornography.
It was in July, 2004 that Michael Schiavo applied for employment with the sheriff’s department, another application approved by Rice. Eleanor Centonze, the mother of Schiavo’s concubine with whom he had two illegitimate children, had worked for Rice in the civil division, retiring in 1999 following a 20-year employment.
Both McCabe and Rice had steadfastly refused to open an investigation into allegations of abuse, neglect and exploitation in the case of Terri Schindler Schiavo. Now it’s learned that in addition to Schiavo and his “mother-in-law” being sheriff’s department employees, McCabe’s daughter had been employed by Rice in the forensic division of the sheriff’s department since 2001, four years before the death of Terri Schiavo by the court order of Rice’s long-time friend Greer and at the time of the multiple allegations of abuse against Michael Schiavo.
Rice’s hire of both McCabe’s daughter and Michael Schiavo came at the same time the contentious guardianship proceedings were proceeding in the courtroom of his friend Greer. His hiring of Schiavo came just weeks after Rice had lent the prestige of his office and the resources of the sheriff’s office in the endorsement of the reelection of Greer in a televised political advertisement.
Although prohibited by Florida Statutes, Rice and other Pinellas county public officers, including state attorney Bernie McCabe and public defender Bob Dillinger, allowed employees of their offices to appear in a campaign commercial for Greer which inferred that Greer was “tough on crime” although Greer is an administrative probate judge.
According to an investigative report by the Florida Elections Commission, James Hellickson, an assistant state attorney in McCabe’s office, told an investigator that Greer asked him to appear in a televised political commercial for the judge’s reelection. According to the judicial cannons, such is prohibited but the state refused to take any action against McCabe, Greer or Hellickson.
According to informed sources, neither Schiavo nor his attorney, George Felos, made a disclosure to the court or attorneys for Terri’s parents, Mary and Robert Schindler Sr., of Schiavo’s employment in the sheriff’s department, particularly in light of the disclosure Feb. 23, 2005 that the state’s Department of Children and Families [DCF] has opened an investigation into some 30 allegations of abuse, neglect and exploitation of Terri Schiavo with Michael Schiavo being the prime suspect.
Although the suspect in a state investigation, Schiavo was not suspended from his job while the probe was continuing and Greer ultimately prevented the investigation from proceeding.
For certain, neither Terri’s parents nor their attorneys were apprised of Jennifer McCabe’s employment in the sheriff’s department, particularly in the forensics division.
In 2003, Rice became the center of controversy in the Schiavo case when Patricia Anderson, then attorney for the Schindlers, filed a motion asking Greer to recuse himself for alleged violations of judicial canons and bias.
In her affidavit, Anderson said that Rice had told her that he and Greer had discussed the Schiavo case at a ball game the night previous with Rice without other parties to the matter being present. Greer refused to recuse himself and Rice later denied that he had made the comments to Anderson.
The forensics division of the sheriff’s department is located across the parking lot from the medical examiner’s office of Jon Thogmartin.
Pinellas County is not without precedent for controversies surrounding autopsies and smack in the middle of the case which precipitated the removal of former Pinellas County Medical Examiner Joan Wood and the appointment of Thogmartin is none other than McCabe, chairman of the medical examiner search committee and who appointed an interim medical examiner to serve for the period between the time Wood resigned and Thogmartin assumed the office.
McPherson, 36, had died after a 17-day stay at the church’s spiritual headquarters in the Fort Harrison Hotel in Clearwater following an automobile accident.
According to records issued in the McPherson case, Wood and McCabe had tangled long before she reversed her autopsy findings and he helped force her out of office because he disapproved of her appearing on Inside Edition to discuss the McPherson case.
McCabe dropped felony charges of abuse of a disabled adult and practicing medicine without a license against the church. Wood had unexpectedly and without explanation changed her autopsy findings, saying that McPherson’s death was accidental and that “psychosis and history of auto accident” were significant conditions that contributed to her death. She expunged “bed rest and severe dehydration” from the initial autopsy which had been listed as underlying causes of death.
In late 2000, McCabe and his committee chose Thogmartin as the medical examiner. Thogmartin was awarded a substantial raise and said he liked the fact that Pinellas-Pasco does it own toxicology work in-house or in other words, there is no oversight of his work, he controls it all as an independent contractor.
A expose of the juvenile and oppressive way that McCabe controls the law enforcement agencies in Pinellas County including the FDLE was revealed in the January termination of Moses Jordan and gives an enlightened but troubling insight into how its possible and likely that efforts for criminal investigations, even manslaughter cases, can be and are shut down, allegedly on orders of McCabe.
Jordan was the second-in-command of the Florida Department of Law Enforcement (FDLE) in Tampa Bay until his retirement in January.
But his retirement wasn’t exactly voluntary. It stemmed from a turf war between the FDLE and the Pinellas County Sheriff’s Office and the handling of a crime scene by the forensics division where McCabe’s daughter is employed. http://www.northcountrygazette.org/2008/05/09/pinellas_turf_war/
Jordon publicly took on Bernie McCabe, embarrassed him, disrespected him in front of law enforcement and other officials—and Bernie McCabe retaliated by causing Jordan’s termination.
It was Newman and Jordan, along with special agent supervisor Norman T. Walker who were blamed for derailing a criminal investigation in the Schiavo case in 2003 after a special agent determined there was probable cause to believe criminal activity had occurred in the case. But another FDLE agent says he was told by McCabe to it shut it down.
It was Newman, Jordan and Walter who were involved in a review of the handling of the Joey Turner drowning case by the St. Pete Beach police department and McCabe’s refusal to open an investigation into the matter or prosecute Lance Skipper. Hours and hours of delay were caused in the questioning of Skipper, perhaps intentionally, by the St. Pete Beach Police Department and specially investigator Vincent Marsilia wrongly sending out a press release and BOLOs stating that the drowning victim, later found to be Turner, was black.
Last July, McCabe cleared seven officers of the Pinellas County Sheriff’s Department in the May 5, 2007 death of Daniel Bradley Young, 33 of Largo. McCabe ruled that Young’s death was an “excusable homicide”. Young was tasered by several of the officers. The sheriff’s forensics division was on the scene.
Young, the brother of Pinellas County Jail detention deputy Randall Young, was allegedly wandering in his neighbors’ yards, walking back and forth across Park Blvd. from his residence, speaking incoherently, shedding his clothing and collecting and carrying objects from the yards of his neighbors to his residence.
Police said that when Young was told he was under arrest, he became combative, a struggle ensued and officers tasered him not once, but three times. He became unresponsive and was transported to the Largo Medical Center where he was pronounced dead.
Young was the second man to die that week at the hands of officers of the Pinellas County Sheriff’s Department. McCabe cleared them all. The forensics division took the photos, gathered the “evidence”.
Judging from a review of determinations issued by McCabe in deaths and alleged wrongdoing involving police officers, it appears that if you’re a public officer or official in Pinellas County, Florida, you may have blanket immunity from prosecution.
It also appears to be a case of the fox guarding the hen house where McCabe and others are reportedly engaging in the same type of alleged criminal wrongdoing as those that he’s supposed to be prosecuting.
The sealed file concerning alleged criminal wrongdoing by McCabe is of significance in the performance of his duties and there should be public disclosure, the same as there should have been public disclosure involving the employment of his daughter by the sheriff’s department and as a prosecution witness in cases handled by his office.
There are an increasing number of suspicious deaths in Pinellas County and especially those which McCabe is refusing to prosecute. In cases involving suspicious and untimely deaths, McCabe simply refuses to investigate, claiming that the statute of limitations has expired or finding some other excuse. There is no statute of limitation for homicide.
Prosecutors, even more than other lawyers, must retain the role of advocate without becoming personally invested in a case. Prosecutors are not allowed to permit their professional judgment “to be affected by his or her own political, financial, business, property, or personal interests, according to the American Bar Association.
“In conflict-of-interest theory, it is not only the reality of a conflict of interest, but also an appearance of one, that is considered undesirable” and there is a huge appearance of impropriety with the state attorney’s daughter, Jennifer McCabe, employed with the Pinellas County Sheriff’s office in the forensics division, particularly in the death of Joey Turner, Jimmy Spicer and others.
The Supreme Court emphasized this conflict of interest principle in its seminal decision of Young v. United States ex rel. Vuitton et Fils.
In holding that the appointment of counsel for a contempt case cannot include an interested party, Justice Brennan discussed the distinctive role of prosecutors and the need for the public to have confidence in their decision making: “The concern that representation of other clients may compromise the prosecutor’s pursuit of the Government’s interest rests on recognition that a prosecutor would owe an ethical duty to those other clients.”
There is a mounting lack of confidence in the integrity and operations of the state attorney’s office under McCabe who unbelievably has been reelected unopposed for yet another four year term. Rubber stamping such elections without giving the people a choice or voice is inviting corruption.
As the state attorney, McCabe is in effect representing the sheriff’s department, his daughter’s employer. When the prosecutor’s daughter is involved in the evidence gathering procedures of a case, there is a strong appearance of impropriety, opening questions of evidence potentially being withheld or even planted.
And that’s wrong and should be stopped.
As the saying goes, now you know the rest of the story in Pinellas County, a chapter that apparently no one in the criminal justice system wanted the public to know, certainly not Bernie McCabe. 7-26-08
http://www.northcountrygazette.org/2008/07/21/two_laws/
http://www.northcountrygazette.org/2008/07/20/black_or_white/
http://www.northcountrygazette.org/2008/07/09/death_by_co/
http://www.northcountrygazette.org/2008/07/03/joey_truth/
http://www.northcountrygazette.org/2008/05/30/charting_pinellas_injustice/
http://www.northcountrygazette.org/2008/05/09/pinellas_turf_war/
http://www.northcountrygazette.org/2008/05/08/delirium_or_murder/
http://www.northcountrygazette.org/2007/06/09/special-report-license-to-kill/
http://www.northcountrygazette.org/articles/052806AnatomyCoverup.html
http://www.northcountrygazette.org/articles/120706CloudOfSuspicion.html
http://www.northcountrygazette.org/articles/072906NiesenMurder1.html
http://www.northcountrygazette.org/articles/061506SpecialCircumstances.html
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Investigative reports are time consuming and costly, especially public records requests which public agencies try to make cost prohibitive. NCG undertakes reports into cases and situations that the mainstream media will not due to politics or fear of losing advertisers etc. NCG is hampered in what it can do because of a lack of financial support from its readers. Many of the reports that NCG presents will not be found elsewhere such as our ongoing reports of the Pinellas County criminal justice system, the Elsebeth Baumgartner case in Ohio, the oaths of office issue, New York’s Troopergate and the Terri Schiavo case.
The NCG plans on continuing to delve into the operations of the office of Pinellas County state attorney Bernie McCabe. Anyone with information regarding the above case, Bernie McCabe and the operations of the Pinellas County state attorney’s office is asked to contact NCG at news@northcountrygazette.org
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Category: Courts, Crime, Florida, Government, Opinion, Police, Politics, Schiavo
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