FDLE agent cleared of criminal conduct in O'Connell case
By Anne Schindler Tue, Aug 18, 2015 @ 6:08 am | updated Tue, Aug 18, 2015 @ 11:21 am
Florida Times Union/First Coast News
More than two years after state prosecutors were ordered by the governor to investigate Florida Department of Law Enforcement agent Rusty Rodgers for allegations of misconduct, investigators found no criminal conduct on his part, according to Times-Union news partner First Coast News.
In the report, obtained by First Coast News, 8th Judicial Circuit State Attorney Bill Cervone concluded Rodgers violated no laws when he investigated the controversial death of Michelle O’Connell, the 24-year-old girlfriend of a deputy, in 2010. However, he did find that the agent “allowed his preconceived beliefs … to color his actions” in a way that put his “impartiality … in doubt.”
The investigation into Rodgers’ conduct came at the behest of St. Johns County Sheriff David Shoar, who accused him of tainting the investigation into O’Connell’s death. Shoar has since called for a wide-ranging probe into any and all cases Rodgers previously investigated, saying “there is a very strong possibility that a citizen(s) may be currently imprisoned for a crime they never committed.”
As reported in August 2012, O’Connell died from a gunshot from the service revolver of her boyfriend, Deputy Jeremy Banks. Her death was almost immediately deemed a suicide, but her family challenged that determination and has long asserted she was killed by Banks. He was the last person to see her alive, and the couple quarreled and broke up the night of her death.
Banks has always maintained his innocence.
The medical examiner on the case also waffled. He initially ruled her death a suicide, based on police accounts of her death, but later changed his mind. As he told First Coast News, “I became convinced it was probably a homicide.”
He later said he simply didn’t know.
The case raised questions about the Sheriff’s Office’s decision not to pass the investigation off to another agency. Not only did Banks work for the Sheriff’ Office, O’Connell’s mother and brother worked there as well.
Shoar has since acknowledged errors in the handling of the matter but has been vocal in his defense of Banks. He also created a special page on the department’s website to collect documents related to the case.
The story went on to attract national headlines, including investigations by Frontline, The New York Times and Dateline.
It also prompted a series of local law enforcement investigations, including 9th Circuit State Attorney Jeffrey Ashton’s finding “no probable cause” that her death was a homicide.
In issuing his report, Cervone acknowledged a significant lagtime in concluding the probe — two years after it was assigned, and more than a year after the original deadline set by Gov. Rick Scott. Cervone explained the investigation was complicated by the “controversy and acrimony” surrounding the matter, along with the near “constant receipt of new information” from all sides in the case.
Now that the criminal complaint against Rodgers has been resolved, the Florida Department of Law Enforcement will restart its dormant internal investigation into his conduct, according to department spokesperson Gretl Plessinger. That is expected to take several weeks. Rodgers has been on paid administrative leave since April 2013.
The New York Times , "Two Gunshots on a Summer Night" by Walt Bogdanich & Glenn Silber (November 24, 2013): http://www.nytimes.com/projects/2013/two-gunshots/
PBS/Frontline, "A Death in St. Augustine (November 26, 2013):
http://www.pbs.org/wgbh/pages/frontline/death-in-st-augustine/ ; NBC News Dateline , "Two Shots Fired" (April 18, 2014):
Folio Weekly: Jeff Billman, "Somebody's lying -- An activist accuses the St. Augustine Record of bowing to pressure from Jeremy Banks' attorney. The paper accuses her of spreading misinformation" (September 17, 2014), http://folioweekly.com/SOMEBODYS-LYING-ST-AUGUSTINE-RECORD-ACTIVIST-JEREMY-BANKS,10912
Dr. Phil, "The Mystery of Michelle O'Connell" (November 3, 2014): http://www.drphil.com/shows/show/2298
Folio Weekly, "Murder, He Wrote," by Susan Cooper Eastman (November 19, 2014), http://cleanupcityofstaugustine.blogspot.com/2014/11/michelle-oconnell-shooting-read-folio.html
Folio Weekly, "The Proxy War," by Derek Kinner (March 4, 2015): http://cleanupcityofstaugustine.blogspot.com/2015/03/folio-weekly-deputy-jeremy-banks-and.html
Our timorous, timid, tendentious, tedious St. Augustine Record, rather than printing Ann Schindler's story from First Coast News, ran Stuart Korfhage's story:
State Attorney: No charges against FDLE Special Agent Rodgers
Posted: August 18, 2015 - 11:30am
Sheriff's Office link to documents in the Michelle O'Connell case
Related story: No change in Michelle O'Connell case
By STUART KORFHAGE
There will be no criminal charges filed against Florida Department of Law Enforcement Special Agent Rusty Rodgers, but his conduct in the investigation of the 2010 death of Michelle O’Connell has drawn criticism.
Rodgers was the lead investigator in the death of St. Johns County resident Michelle O’Connell in 2010. The death was initially ruled a suicide but was further investigated to determine whether boyfriend Jeremy Banks, a St. Johns County Sheriff’s deputy, was involved.
A two-year investigation of Rodgers led by State Attorney William Cervone of the 8th Judicial District concluded Aug. 7. In the official report, Cervone said there was no evidence of criminal behavior by Rodgers, but he was troubled by the handling of the investigation.
“In reaching my conclusions, I would like to note that I do not condone or endorse the actions of Special Agent Rodgers,” Cervone wrote. “He has in my view allowed preconceived beliefs or early conclusions as to what may have happened to Ms. O’Connell to color his actions to the degree where his impartiality is in doubt. In looking for support for his beliefs, he has engaged in questionable investigative techniques, including misleading some witnesses, in an attempt to gather evidence consistent with his beliefs.”
Rodgers remains on administrative leave from the FDLE.
Molly Best, communications coordinator for FDLE said in an email to The Record that the internal affairs investigation can now go forward.
“F.S. 112.532, known as the law enforcement officers bill of rights, says that during a criminal investigation on a law enforcement officer any internal investigation of the individual must be placed on hold,” Best wrote. “Also, per the Garrity Rights, the two investigations cannot coincide.
“Since the investigation is active, there are no other details that can be released until the case is closed.”
Rodgers could not be reached for comment. His attorney did not respond to messages left at his office Tuesday.
The investigation into Rodgers’ conduct came at the behest of St. Johns County Sheriff David Shoar, who accused him of tainting the investigation. Shoar has since called for a wide-ranging probe into any and all cases Rodgers previously investigated.
On Tuesday, Shoar said he was satisfied that Cervone had reached many of the same conclusions he had even though criminal charges won’t be filed.
“He looked at [the case] and found what we found and he said so,” Shoar said. “This is not about revenge. This is about doing the right thing.
“I feel confident that FDLE will come up with appropriate administrative finding on the case.”
Cervone’s report lists several concerns mentioned by Shoar, who filed the original complaint against Rodgers and others at FDLE.
In some instances, Cervone said he agreed with Shoar in that the practices of Rodgers were unethical but not criminal. In other cases, he said the actions of Rodgers were acceptable.
Among the areas where Cervone found fault were:
■ Rodgers classified the investigation of O’Connell’s death as a homicide nine days into the case. While certainly not a criminal act, Cervone noted that, “Classifying the case as a homicide at this stage of the investigation and after the medical examiner’s official finding of suicide indicates Investigator Rodgers may have already been coloring his investigation in a certain direction.”
■ Shoar was concerned with the way Rodgers interacted with Scott O’Connell, Michelle’s brother, who was with employed by the Sheriff’s Office at the time. Scott O’Connell said he received numerous calls from Rodgers during the investigation and became convinced Banks was responsible for his sister’s death. He later rejected the findings of Rodgers.
Cervone wrote that Rodgers “had a relationship [with Scott O’Connell] that appears abnormal when compared to typical homicide investigations.” Again, not a criminal act.
■ The biggest issues in Cervone’s opinion seem to be with Rodgers’ use of an inaccurate quote from Banks in the 911 call the night of O’Connell’s death and a copy of a text supposedly sent by O’Connell to her sister just before her death that can’t be found in phone records in an affidavit to obtain a search warrant.
Cervone wrote: “This would be the closest Rodgers comes to committing perjury in an official sworn document, but there is insufficient evidence in the record to charge Rodgers with perjury. As it stands though, the conflict between the text and the record is deeply troubling and demands a serious administrative review of Rodgers’ performance.”
Shoar has previously admitted that his department made mistakes in the initial investigation, but he said the evidence supports the conclusion O’Connell’s death was a suicide.
Because Banks was employed by the Sheriff’s Office — as were Michelle O’Connell’s mother and brother at the time of her death — the death investigation was turned over to the FDLE by Shoar.
Although Rodgers presented findings that suggested Banks was responsible, State Attorney Brad King, who was assigned to the case by Gov. Rick Scott, decided there was insufficient evidence to bring charges against Banks.
It was after that decision when media interest around the case picked up. Following a New York Times story and other reportings, along with what was considered new evidence, the case was reopened.
Another state attorney from outside the area, Jeffrey Ashton, was appointed to review the case in October 2014. He released his report in July that again declared that not enough evidence could be found to support charges against Banks.
Ashton’s report detailed the errors made by the Sheriff’s Office in the death investigation. It also detailed the mistakes made by Rodgers.
In many ways, Ashton was much harsher in his criticism of Rodgers than Cervone.
Among the conclusions reached by Ashton: “... based upon the amount and consistency of the mistakes and/or misstatements by Agent Rodgers that his actions and/or inactions were potentially intentional; and, as such, created new prosecutorial problems in this case.”
Ashton concludes his report with a statement that “with the totality of the actions and inactions specifically taken by Agent Rodgers,” the case would never be presentable for prosecution.
“In my 34 years in law enforcement, I have never seen such egregious misconduct as I’ve seen in this case,” Shoar said of Rodgers.
[LOOK IN THE MIRROR, YOU LUGUBRIOUS GOOBER, SHERIFF DAVID BERNARD SHOAR, f/k/a "HOAR"!
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Morris1 08/18/15 - 04:28 pm 02LOL
My favorite part is when the FDLE Agent investigating this matter laments about all sorts of high-minded investigation principles he claims Rodgers violated (when investigating another cop) but are otherwise totally standard practice when investigating normal people.
THANK YOU ALL FOR YOU SERVICE, HEROES! WHO YOU GONNA CALL WHEN SOMEONE IS ROBBING YOU???