Friday, October 30, 2015

Decision Not to Prosecute Ex-Mayor for Shooting Raises Questions About Blurred Ethical Lines, Politics, Incompetence, Failure to Comply With Prosecutorial Standards

CHRISTOPHER ANTHONY FRANCE, Chief Deputy State's Attorney for St. Johns County, wrote after-the-fact memo October 15-20, 2015 justifying not prosecuting FRANK CHARLES in 2014;
Mr. FRANCE is running for Circuit Judge in the 7th Judicial Circuit (election in 2016).

Sheriff DAVID BERNERD SHOAR f/k/a "HOAR" -- Another political coverup?

St. Johns County Sheriff's Detective EUGENE TOLBERT (left), one of two maladroit detectives on Michelle O'Connell case, ordered ex-Mayor FRANK CHARLES released from handcuffs at scene of double-shooting in August 2014

Ex-Mayor FRANK CHARLES of St. Augustine Beach shot his housemate and former employee
Blake Miles, shot by ex-Mayor FRANK CHARLES of St. Augustine Beach in August 2014.
At 2:58:27 pm on Thursday, October 15, 2015, CHRISTOPHER A. FRANCE, our Chief Assistant State's Attorney in St. Johns County prepared a three page memorandum, supposedly explaining why former St. Augustine Beach Mayor FRANK CHARLES was never prosecuted for shooting Blake Miles in the testicles and abdomen.
The shooting was in August 2014.  The memo was completed on Tuesday, October 20, 2015. Why?
The memo does not bear a date, and does not show that it was sent to anyone in particular.  This curious memo was prepared in response to my Open Records request on Thursday, October 15, 2015, at 6:53 AM, stating in haec verba:

-----Original Message-----
From: easlavin
To: HathawayS ; larizzar

Sent: Thu, Oct 15, 2015 6:53 am
Subject: Re: Request No. 2015-393: 8/14/14 Ex-Mayor FRANK CHARLES/Blake Miles shooting -- investigator's reports and SAO memos recommending against prosecution or for nolle prosequi

Dear Messrs. Hathaway and Larizza:
1. Please send documents concerning the SAO7 decision not to prosecute FRANK CHARLES, ex-Mayor of St. Augustine Beach, Florida, for the August 2014 alleged assault with a deadly weapon and attempted murder with a handgun of Blake Miles, including the investigators' reports and SAO memos recommending for or against prosecution or for nolle prosequi.  
2. Please include any and all police reports concerning Deputy JEREMY BANKS: was he the first responder on the scene? Please share 911 calls, dispatch records and any evidence that the CHARLES' residence was on JEREMY BANKS' regular duty station that night and how JEREMY BANKS came to be assigned or volunteered for domestic violence calls.  Please include all BANKS police repots on the shooting of Blake Miles and sequelae.  
Thank you.
Ed Slavin

Like Sheriff DAVID BERNERD SHOAR, 7th Circuit State's Attorney RALPH JOSEPH LARIZZA is willing to create post hoc documents justifying decisions not to prosecute persons with influence, in response to journalists' Open Records request.
Sheriff SHOAR's magnum opus was a tortious, criminal, materially false and misleading 153 page pile of drivel, driving under the inference, rambling, repetition, supposition, libel, slander, defamation and Lashon hara, in response to New York Times reporter Walt Bogdanich's inquiries about the Michelle O'Connell case.  Like the FRANK CHARLES case, the Michelle O'Connell case was already closed, but Sheriff SHOAR determined to say to the Times' reporter, "We'll show him."  FBI is investigating.

State's Attorney LARIZZA's effort in response to my request was shorter, but emits the same stench.

Rather than take shooting cases to the Grand Jury, and allow evidence to be heard and decided by objective Grand Jurors, LARIZZA makes prosecution decisions all by himself, with his secretive crew of second-rate prosecutors, who do not follow National Prosecution Standards set forth by the Nationa l District Attorney's Association, which you can read here.

This breathtaking lack of standard-following permits all kind of corruption, coverups, case-fixing, ineptitude and decrepitude.
It appears that LARIZZA is a political prosecutor, in the same sense as Lincoln's political generals.  Political prosecutors decide not based on the fact and law of record, but allow politics to dictate taking the easiest road: avoiding a potential loss that would hurt LARIZZA's statistics. Real prosecutors -- like Lawrence Walsh, Thomas E. Dewey or Roger Adelman -- don't care about "conviction rates." They take tough cases. They prosecute powerful people and organized criminals.
Blowhard prosecutorial phonies like LARIZZA campaign based on fantasyland -- all Dick Tracy and no spine. They want a high "conviction rate," based on taking only easy cases, or plea bargaining meritless cases into probation.
The decision LARIZZA made not to prosecute ex-Mayor FRANK CHARLES is a fairly debatable question.
In cases of domestic violence, prosecutors will often refuse to prosecute, based upon both victim and victimizer having hit each other.
Other prosecutors, like former Anderson County, Tennessee District Attorney General James Nelson Ramsey, prosecute both belligerents, allowing the court system to figure it out, without fear or favor, and discouraging domestic violence.  Never having been a prosecutor, I have no opinion on which approach is best.
But upon reading the applicable National Prosecution Standards published by the National District Attorneys' Association, I reckon that you might agree with me that the Seventh Circuit State's Attorney's office is a deeply dysfunctional office, one incapable of spotting other issues in the police reports that would be worthy of a Grand Jury, or further investigation.
Why was St. Augustine Beach ex-Mayor FRANK CHARLES handcuffed and then released, on orders of Detective EUGENE TOLBERT, one of two detectives on the Michelle O'Connell case?
Why was evidence of FRANK CHARLES' auto trips driving the shooting victim to "drug town" not resolved?  Why was evidence of glass pipes in CHARLES' home not investigated?
Why weren't both alleged aggressors charged with assault?  Read the police blotter: assault is the subject of daily charges against lesser-known people, often over the most trivial of touching.
Why is it that FRANK CHARLES shot his domestic partner twice and was never even booked -- initially he was handcuffed, but ordered released by St. Johns County Sheriff's Detective EUGENE TOLBERT, one of two detectives on the Michelle O'Connell case oblivious to domestic violence?  Why?
Why was there no press release on the decision not to prosecute a notorious shooting case?
Was this case "fixed?"
Sheriff DAVID SHOAR and State's Attorney RALPH LARIZZA are both Republicans, and pals.  Ex-Mayor of St. Augustine Beach FRANK CHARLES is also a Republican.
Is there a custom, usage, practice, procedure and policy of a dual justice system here?
"Catch and release" for big-shots?
Harsh treatment for the rest of us?
Does this violate the criminal and civil provisions of the 1871 Civil Rights Act (Ku Klux Klan Act)?
It appears that there are "two Americas," and two standards of justice in St. Johns County: one for the rich and well-connected, and one for the rest of us.
The rich get their tickets fixed and their problems solved based upon the pull of special influence.  The rest of us get picked on, too often, under the corrupt Republican regime in St. Johns County (one that was a Democratic regime until Sheriff Neil Perry ordered all of his elected officials to change parties on the same day a quarter century ago, all standing in line at the same time).
The fact that Deputy JEREMY BANKS and ex-Mayor of St. Augustine Beach FRANK CHARLES were never arrested and never treated as suspects in two cases of apparent domestic violence speaks volumes.
On November 8, 2016, we elect a new State's Attorney for the Seventh Judicial Circuit and a new St. Johns County Sheriff.  Choose wisely, my friends.  We need ethical, honorable lawmen who will respect the Constitution and the Bill of Rights.
Here are the NDAA National Prosecution Standards that LARIZZA disdained to follow in the shootings of Michelle O'Connell and Blake Miles:
1. Screening
4-1.1 Prosecutorial Responsibility
The decision to initiate a criminal prosecution should be made by the prosecutor’s office. Where state law allows criminal charges to be initiated by law enforcement or by other persons or means, prosecutors should, at the earliest practical time, decide whether the charges should be pursued.
4-1.2 Prosecutorial Discretion
The chief prosecutor should recognize and emphasize the importance of the initial charging decision and should provide appropriate training and guidance to prosecutors regarding the exercise of their discretion.
4-1.3 Factors to Consider
Prosecutors should screen potential charges to eliminate from the criminal justice system those cases where prosecution is not justified or not in the public interest. Factors that may be considered in this decision include:
a. Doubt about the accused’s guilt;
b. Insufficiency of admissible evidence to support a conviction;
c. The negative impact of a prosecution on a victim;
d. The availability of adequate civil remedies;
e. The availability of suitable diversion and rehabilitative programs;
f. Provisions for restitution;
g. Likelihood of prosecution by another criminal justice authority;
h. Whether non-prosecution would assist in achieving other legitimate goals, such as the investigation or prosecution of more serious offenses;
i. The charging decisions made for similarly-situated defendants;
j. The attitude and mental status of the accused;
k. Undue hardship that would be caused to the accused by the prosecution;
l. A history of non-enforcement of the applicable law;
m. Failure of law enforcement to perform necessary duties or investigations;
n. The expressed desire of an accused to release potential civil claims against victims, witnesses, law enforcement agencies and their personnel, or the prosecutor and his personnel, where such desire is expressed after having the opportunity to obtain advice of counsel and is knowing and voluntary;
o. Whether the alleged crime represents a substantial departure from the accused’s history of living a law-abiding life;
p. Whether the accused has already suffered substantial loss in connection with the alleged crime;

q. Whether the size of the loss or the extent of the harm caused by the alleged crime is too small to warrant a criminal sanction;
4-1.4 Factors Not to Consider
Factors that should not be considered in the screening decision include the following: 
a. The prosecutor’s individual or the prosecutor’s office rate of conviction;
b. Personal advantages or disadvantages that a prosecution might bring to the prosecutor or others in the prosecutor’s office;

c. Political advantages or disadvantages that a prosecution might bring to the prosecutor;
d. Characteristics of the accused that have been recognized as the basis for invidious discrimination, insofar as those factors are not pertinent to the elements or motive of the crime;

e. The impact of any potential asset forfeiture to the extent described in Standard 4-7.4.
4-1.5 Information Sharing
The prosecutor should attempt to gather all relevant information that would aid in rendering a sound screening decision. The prosecutor’s office should take steps to ensure that other government and law enforcement agencies cooperate in providing the prosecutor with such information.
4-1.6 Continuing Duty to Evaluate
In the event that the prosecutor learns of previously unknown information that could affect a screening decision previously made, the prosecutor should reevaluate that earlier decision in light of the new information.
4-1.7. Record of Declinations
Where permitted by law, a prosecutor’s office should retain a record of the reasons for declining a prosecution.
4-1.8 Explanation of Declinations
The prosecutor should promptly respond to inquiries from those who are directly affected by a declination of charges.
It could be argued that screening decisions are the most important made by prosecutors in the exercise of their discretion in the search for justice. The screening decision determines whether or not a matter will be absorbed into the criminal justice system. While the decision may be very easy at times, at others it will require an examination of the prosecutor’s beliefs regarding the criminal justice system, the goals of prosecution, and a broad assortment of other factors. These standards set forth some of the considerations that may be relevant to an informed screening decision as well as some that should not be used in making the determination. The prosecutor should take care to recognize any of the listed factors that are not appropriate for use in his or her jurisdiction.
2. Charging
4-2.1 Prosecutorial Responsibility
It is the ultimate responsibility of the prosecutor’s office to determine which criminal charges should be prosecuted and against whom.
4-2.2 Propriety of Charges
A prosecutor should file charges that he or she believes adequately encompass the accused’s criminal activity and which he or she reasonably believes can be substantiated by admissible evidence at trial.
4-2.3 Improper Leveraging
The prosecutor should not file charges where the sole purpose is to obtain from the accused a release of potential civil claims.
4-2.4 Factors to Consider
The prosecutor should only file those charges that are consistent with the interests of justice. Factors that may be relevant to this decision include:
a. The nature of the offense, including whether the crime involves violence or bodily injury;
b. The probability of conviction;
c. The characteristics of the accused that are relevant to his or her blameworthiness or responsibility, including the accused’s criminal history;
d. Potential deterrent value of a prosecution to the offender and to society at large; 

e. The value to society of incapacitating the accused in the event of a conviction; 
f. The willingness of the offender to cooperate with law enforcement;
g. The defendant’s relative level of culpability in the criminal activity;
h. The status of the victim, including the victim’s age or special vulnerability; i. Whether the accused held a position of trust at the time of the offense;
j. Excessive costs of prosecution in relation to the seriousness of the offense; k. Recommendation of the involved law enforcement personnel;
l. The impact of the crime on the community;
m. Any other aggravating or mitigating circumstances.
Following an initial screening decision that prosecution should be initiated, the charging decision is the prerogative and responsibility of the prosecutor. The charging decision entails determination of the following issues:
  • What possible charges are appropriate to the offense or offenses; and
  • What charge or charges would best serve the interests of justice?
    In making a charging decision, the prosecutor should keep in mind the power he or she is exercising at that point in time. The prosecutor is making a decision that will have a profound effect on the lives of the person being charged, the person’s family, the victim, the victim’s family, and the community as a whole. The magnitude of the charging decision does not dictate that it be made timidly, but it does dictate that it should be made wisely with the exercise of sound professional judgment.
    There will be times when information not known at the time of charging will influence future actions in a case. While it is advisable to gather all information possible prior to charging, that is simply an unrealistic expectation. The prosecutor must balance the importance of gathering information and the importance of public safety interests when determining when he or she has sufficient information to make a charging decision.
    While commencing a prosecution is permitted by most ethical standards upon a determination that probable cause exists to believe that a crime has been committed and that the defendant has committed it, the standard prescribes a higher standard for filing a criminal charge. To suggest that the charging standard should be the prosecutor’s reasonable belief that the charges can be substantiated by admissible evidence at trial is recognition of the powerful effects of the initiation of criminal charges. Pursuant to the prosecution’s duty to seek justice, the protection of the rights of all (even the prospective defendant) is required.
    The means by which a prosecutor elects to implement charging decisions is closely related to the mechanism utilized in reaching screening decisions; indeed, the two functions may be appropriately combined in a single individual or office division.
    Diversion participation should only be done at the prosecutor’s discretion, and the prosecutor should not yield to external pressures in either selecting a charge or deciding if diversion alternatives are a proper course of action. Diversion may be done at any stage of the proceeding, but with the option of continued prosecution. That does not preclude diversion alternatives after a formal charge. At that stage, the threat of criminal prosecution is even greater to the accused, and thus positive participation in diversion alternatives and favorable results may be more likely.
    Initial standards or guidelines for charging will be established by the chief prosecutor only. In the one-person office, the chief prosecutor will also act as the agent for implementing these guidelines. Larger offices may find it convenient, particularly in

respect to minor offenses, to delegate much of the responsibility for charging to selected individuals or to establish a separate office division for intake procedures. The designated individuals or office division should be responsible for reaching initial charging decisions, subject to review and approval by the chief prosecutor.
The chief prosecutor should establish guidelines by which charging decisions may be implemented. For the one-person office this formulation process will provide consistency of operation and an incentive to develop and articulate specific policies. The same holds true for other size offices.
Some prosecution offices employ vertical prosecution with great success, making the use of guidelines important for consistent application. 

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