Thursday, August 27, 2015



Agent Cleared Over 2010 Florida Shooting Inquiry, but Lawyer Lashes Out
AUG. 27, 2015

Sheriff David B. Shoar of St. Johns County, Fla., in 2013. CreditMichael Appleton for The New York Times 

Sheriff David B. Shoar of St. Johns County, Fla., in 2013. Credit Michael Appleton for The New York Times

Four years ago, a Florida state investigator was drawn into a highly contentious case involving a young single mother who was in the process of breaking up with her boyfriend, a St. Johns County deputy sheriff, when she was killed with the officer’s service weapon.

The investigator, Rusty Rodgers, raised questions about the sheriff’s investigation of his own deputy, which resulted in a suicide finding. And after the sheriff, David B. Shoar, publicly accused Mr. Rodgers of misconduct, he found himself the target of a criminal investigation by a special prosecutor appointed by Gov. Rick Scott.

Now, two years later, the special prosecutor, William P. Cervone, has cleared Mr. Rodgers, an agent with the Florida Department of Law Enforcement, concluding in his report that no crime had been committed and that most of the accusations of serious misconduct leveled by Sheriff Shoar were essentially baseless or overblown.

But because Mr. Cervone included personal criticism of Mr. Rodgers in an Aug. 7 cover letter to the report, the agent’s lawyer, William J. Sheppard, sent a letter last week to Mr. Scott saying that Mr. Cervone had maligned his client “with unsupported and false allegations of bias and unethical conduct.”

In his first public comments on the case, Mr. Sheppard wrote that Mr. Cervone had repeated “the more extreme and unfounded allegations propagated by Sheriff Shoar,” who, he said, had personally requested that Mr. Rodgers review his agency’s handling of the shooting. According to Mr. Sheppard, the sheriff then used the law enforcement agent “as a scapegoat for an investigation that had already been bungled.”

The Sept. 2, 2010, shooting death of Michelle O’Connell, a 24-year-old with a young daughter, has roiled the St. Augustine community for nearly five years, in part because of numerous flaws in the initial investigation by the sheriff’s office. The office almost immediately concluded that Ms. O’Connell had shot herself in the mouth, even though, among other errors, investigators never tested the forensic evidence collected after the shooting and did not interview Ms. O’Connell’s family and friends.

The shooting, and the sheriff’s handling of it, were the subject of a lengthy examination in 2013 by The New York Times in collaboration with the PBS investigative news program “Frontline.” The Times report also quoted independent forensic experts who disputed the local medical examiner’s conclusion — endorsed by Sheriff Shoar, a politically powerful elected official — that a wound above Ms. O’Connell’s eye had been caused by the gun recoiling forward when fired.

“The idea of it recoiling forward is absurd,” Peter De Forest, a widely respected forensic scientist, said in the article.

A more logical conclusion, according to the forensic experts interviewed by The Times, was that Ms. O’Connell had a physical confrontation with her boyfriend, Jeremy Banks, before the shooting. Mr. Banks has vigorously denied shooting or physically abusing Ms. O’Connell. Two special prosecutors, also appointed by Mr. Scott, found insufficient evidence to charge the deputy in connection with the shooting.

After The Times began inquiring into the sheriff’s handling of the case, Sheriff Shoar assigned a team of officers to review Mr. Rodgers’s conduct, resulting in a 150-page report that was highly critical of the law enforcement agent. The report, including Sheriff Shoar’s first public admission that his office had made serious mistakes investigating the case, prompted Mr. Cervone’s review of Mr. Rodgers.

The special prosecutor, in his letter to the governor, noted that his two-year review took longer than usual, blaming “what has seemed to be the constant receipt of ‘new’ information from one side or the other” for the delay.

This was one of several statements Mr. Sheppard criticized.

“Mr. Cervone’s letter insinuates that Agent Rodgers was an equal participant in delaying the investigation,” when in fact, Mr. Sheppard said, it was Sheriff Shoar and Mr. Banks’s lawyer who tried to delay the review in an effort to “coerce Agent Rodgers to resign under the stress, financial burden and public embarrassment surrounding the case.”

Mr. Banks’s lawyer has filed a lawsuit in federal court, accusing Mr. Rodgers of violating Mr. Banks’s rights during the investigation. Mr. Rodgers denies the accusation.

Mr. Cervone said Mr. Rodgers had conducted a biased investigation, including misleading some witnesses. “None of these actions, however, are clearly or provably criminal in nature,” Mr. Cervone wrote. “To the contrary, they are largely legally permissible even if not ethically appropriate. Indeed, courts, including the United States Supreme Court, have generally allowed enforcement officers to engage in even blatant deception towards witnesses and suspects in the pursuit of justice.”

Mr. Sheppard responded that Mr. Rodgers’s conduct had not been criticized by his superiors or the local prosecutor, and that Sheriff Shoar’s accusations did not surface until a year and a half after the case had been closed, at which point The Times began inquiring into the shooting.

In an interview, Mr. Cervone said, “It is apparent to me that both Sheriff Shoar and Mr. Rodgers disagree with or are disappointed by my conclusions. Perhaps my not having pleased anyone in this contentious matter best validates my conclusions.”

An email message to Sheriff Shoar seeking his comment was not returned. During Mr. Cervone’s investigation, Mr. Rodgers has been on paid administrative leave. With the criminal investigation over, the Florida Department of Law Enforcement is free to complete its internal review of Mr. Rodgers’s involvement in the O’Connell case.

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