State's Attorney RALPH JOSEPH LARIZZA a/k/a "LaLIZARD," with St. Johns County Sheriff DAVID BERNARD SHOAR f/k/a "HOAR" at fete at Rod & Gun Club, longtime KKK hangout.
‘A FAIR SHOT AT JUSTICE’: A fight, a death, and a family’s quest for answers
By Jared Keever
Posted Feb 25, 2018 at 6:28 AM
Updated Feb 27, 2018 at 5:54 PM
St Augustine Record
Kenneth James Flanery and his wife visited the Howlin’ Wolf bar in Putnam County just before closing on Oct. 11, 2015. [CHRISTINA KELSO/THE RECORD]
PART I
‘A FAIR SHOT AT JUSTICE’
Kenneth James Flanery didn’t die at the Howlin’ Wolf bar the night of the fight, but he wouldn’t survive his injuries.
The evening of Oct. 10, 2015, had been normal enough when it began for the father of four and his wife, Nicole.
The couple, married 16 years, started their evening at Flanery’s mother’s house where she lived with his stepfather. Together, the family watched a Florida Gators football game before Kenneth and Nicole headed home.
Later, realizing Kenneth had left his phone at his mother’s house, they circled back to retrieve it. On their way home again, the two got lost on a back road and decided to pull into the remote Putnam County bar about 20 minutes before its 2 a.m. closing time to have one more beer.
The call to 911 was made about an hour later, right at 3 a.m. on Oct. 11.
Several binders of records and information regarding the death of Kenneth James Flanery, compiled by his stepfather David Nixon, are piled on the table of his stepfather and mother’s home. [CHRISTINA KELSO/THE RECORD]
TIMELINE OF EVENTS
‒ Oct. 11, 2015: Deputies and paramedics are called to the Howlin’ Wolf bar at 3 a.m. and find Kenneth James Flanery unconscious, in a pool of his own blood.
‒ Oct. 14, 2015: After staff at UF Health in Gainesville declare Flanery brain dead, his family makes the decision to have him removed from life support. Putnam County Sheriff’s Office Det. Lynn Nicely is assigned to the case.
‒ Oct. 15, 2015: Flanery’s autopsy is performed at the District 8 Medical Examiner’s Office (Gainesville).
‒ Nov. 25, 2015: Nicely closes the investigation into Flanery’s death, referencing a Nov. 12 “case review” with the State Attorney’s Office after which prosecution was declined.
‒ Dec. 2, 2015: It was around this time that Flanery’s stepfather, David Nixon, first saw a copy of the Sheriff’s Office report when it was brought to him by Flanery’s wife, Nicole Flanery.
‒ Dec. 14, 2015: Nixon requests and receives his own copy of the entire Sheriff’s Office case file after he notes seeming inconsistencies in the report.
‒ Dec. 16, 2015: Nixon contacts the 7th Judicial Circuit State Attorney’s Office asking to speak with the prosecutor who reviewed the case file and declined prosecution.
‒ Dec. 18, 2015: Assistant State Attorney Chris Miller speaks with Nixon on the phone.
‒ Dec. 23, 2015: On or around this day — just before the Christmas holiday — Miller meets Nicely at a gas station on State Road 207 to get his own copy of case documents.
‒ Feb. 9, 2016: Nixon meets with Miller, assistant state attorney Jason Lewis and a homicide investigations unit investigator in St. Augustine to discuss the case.
‒ March 28, 2016: Supplemental narrative added to the Sheriff’s Office report to reflect autopsy findings and note that the autopsy was performed by the District 8 Medical Examiner’s Office and not District 23 as previously noted.
‒ July 12, 2016: Miller issues a memorandum officially declining prosecution in the case.
Kenneth was hurt and needed help.
Nicole Flanery, calling from a borrowed phone, said her husband had been knocked unconscious in a fight with another patron. He was breathing, she said, but, according to a Putnam County Sheriff’s Office incident report, he was “snoring,” or what is referred to in the report as “sonorous breathing.”
The report further explains that when sheriff’s deputies and rescue personnel arrived at the bar in response to the 911 call they found “a white male later identified as Kenneth Flanery, laying on the ground unresponsive making a snoring noise with a pool of blood on the ground next to him and blood coming out of his face.”
He died of his injuries three days later at UF Health in Gainesville after his family had him removed from life support.
The death of the father of four passed with little notice. No one was ever charged in connection with the incident and the fight was not mentioned in the local paper — The Palatka Daily News — until nearly a year later, after Flanery’s stepfather, David Nixon, filed a state Commission of Ethics complaint against the sheriff, the detective who investigated the case and other officers involved.
Before, and since, the filing of that complaint, which was ultimately dismissed, Nixon has been searching for answers to questions about his stepson’s death. Answers about what he says are misleading statements and errors in the detective’s case file and why, more than a month after his stepson died, the 7th Judicial Circuit State Attorney’s Office had never seen that file despite the report mentioning a case review that closed the case.
A lunch meeting
Kenneth Flanery had been dead nearly a month when Putnam County Sheriff’s Office Detective Lynn Nicely found himself seated at a St. Augustine lunch table with Assistant State Attorney Chris Miller and two others.
The lunch group, according to documents obtained from the Florida Bar as part of a public records request, had assembled to work on a different case together earlier that November day and stopped at Bono’s for a bite to eat. Nicely told Miller he had a few other cases he wanted to tell him about, including one about a late-night fight at a Putnam County bar.
There, over plates of barbecue, with Nicely’s captain, Dominic Piscitello, and an investigator from the State Attorney’s Office Homicide Investigation Unit present, Nicely laid out the facts of Flanery’s death.
In his attorney’s response to a Bar complaint filed against him by Nixon, Miller says Nicely’s recounting of the facts of the case took about 30 seconds, after which he told the detective it didn’t sound as though the case would be something he could prosecute.
About two weeks later, Nicely officially closed the case and informed Nicole Flanery there would be no charges in connection with her husband’s death.
In his report, Nicely wrote: “On November 12, 2014 [sic], I met with the State Attorney’s Office to discuss information obtained during the course of this investigation, it was reviewed with the State Attorney’s Office and during that case review prosecution was declined.”
That summation, according to the report in the Sheriff’s Office case file, was written on Nov. 25 which, as it turns out, was nearly eight months before the State Attorney’s Office would issue a memo declining prosecution and at least weeks before Miller, or anyone else at the State Attorney’s Office, would even see the case file or become fully acquainted with the name “Kenneth Flanery.”
But they did. And that is because of David Nixon.
It started with one detail ...
Nixon, who has spoken with The Record in a series of interviews, emails, and phone calls over the past eight months, says he is convinced that the investigation into his stepson’s death was flawed and believes that officials with the Putnam County Sheriff’s Office, for reasons unknown, may have worked to keep the full case from the eyes of the State Attorney’s Office.
For more than two years, and through a recent stroke from which he has nearly fully recovered, he has collected documents, written letters, and requested investigations into the conduct and decisions of Nicely, Piscitello and others in Nicely’s chain of command. He has also filed complaints with the Florida Bar against both Miller and Assistant State Attorney Jason Lewis, alleging, in part, that they have not been forthright with him and have worked to prevent, or hinder, any investigation by an agency outside the 7th Judicial Circuit.
The very first thing that caught my eye was it said [Kenneth] took his shirt off to start the fight.
David Nixon
Though none of those complaints or any of their subsequent investigations have sustained his allegations or found any wrongdoing on the part of authorities involved in the case, Nixon persists, driven, it seems, by a desire to be assured that all questions are asked, and answered, following what he sees as a troubling report meant to obscure the facts of the case.
Taken as whole, he says, the report prepared by Nicely looks like something meant to deceive his family into thinking that a thorough investigation, complete with a formal prosecutor’s review, had been done.
He carries with him well-organized binders full of documents he has collected and keeps in his mind a meticulous timeline of who told him what, and when.
His work began not long after Flanery died, in early December 2015, when his daughter-in-law brought that Sheriff’s Office offense report to him asking for a copy to be made so she could send it off to a life insurance company.
Nixon says he noticed something in the document that didn’t jibe with the story his daughter-in-law told him about the fight.
“The very first thing that caught my eye was it said [Kenneth] took his shirt off to start the fight,” he said in December, seated at a table in his Alachua County home.
Nixon eventually requested a copy of the entire case file from the Sheriff’s Office, including video-recorded interviews of the witnesses and the pictures taken at the bar the night of the fight.
“And there he is laying on the ground with his shirt on,” Nixon said.
The fight
According to witness interviews now part of the case file, Kenneth and Nicole Flanery befriended another couple and started drinking with them shortly after they arrived at the Howlin’ Wolf.
Around 2 a.m., the bartender on duty told her remaining customers that she would be closing down and left a small group in a courtyard area out back and warned that they shouldn’t linger.
One of those who remained was a 38-year-old construction worker who lived nearby.
Though this man is named in the Sheriff’s Office report and through the pages of the documents reviewed for this story, The Record is not naming him because he has not been charged with a crime in connection with the fight.
While witness accounts differ slightly, what is generally accepted is that six people stayed behind in the courtyard of the Howlin’ Wolf after the bartender closed up — the two couples, that construction worker, and another man who witnesses often referred to as “older.”
As the drinks ran out, Nicole Flanery and the other woman decided to drive down the road to get some more beer and cigarettes. When they returned and pulled their car up to a fence that partially enclosed the courtyard, Kenneth Flanery jumped on the fence as if to greet them, shaking it and maybe breaking off a piece.
That construction worker, concerned that Flanery was damaging the fence, told him to get down, and a fight started.
Accounts indicate that, at some point, Flanery threw a punch at the man, missed, and the man threw his own punch that connected and knocked Flanery down.
Flanery got up, threw another punch, missed, and was hit again. That second time he fell without catching himself, witnesses said, and hit his head on a concrete slab.
He never regained consciousness and was taken to UF Health in Gainesville where, the report says, staff declared him brain dead.
On Oct. 14, his family had him taken off life support, and an Oct. 15 autopsy led to the determination that Flanery’s death was a homicide caused by blunt force trauma to the head.
The report
But that was one of the problems that Nixon had with the report when he saw it nearly two months later.
In a “supplemental narrative,” entered on Nov. 20, Nicely noted that the autopsy was conducted by the District 23 Medical Examiner’s Office in St. Augustine.
It wasn’t.
Because Flanery was taken to, and died at, UF Health in Gainesville, his body was handed over to the District 8 Medical Examiner’s Office for the autopsy.
Nixon found other problems, too.
The deputy who responded to the fight lists Flanery as the suspect and the other man — the one who threw both punches — as the victim.
Authorities have since said that is because, at the time that the initial narrative was written, no one thought the incident was anything but a bar fight — certainly not a homicide — and statements taken at the scene indicated that Flanery was the primary aggressor in the fight.
But Nixon noticed that the deputy confuses the two men’s names at least once in the report when he writes that “Kenneth advised he did not wish to pursue charges at which time he signed a refusal to prosecute” — something he would not need to do if he were the suspect and something he certainly could not have done while unconscious.
While that mistake was corrected in a supplemental narrative three days later, the transposing of names creates other questions about that initial narrative and the investigation to follow, because it muddies which version of the story is correct.
For one, the initial narrative report — written by the responding deputy — says, that Nicole Flanery said she was first able to separate the two men by pulling her husband away “at which time [the other man involved] continually [sic] verbally assaulting Kenneth by calling him obscenities.”
In a brief audio-recorded interview the night of the fight, that is exactly what Nicole describes to the deputy at the scene; saying that she and someone else were able to separate the two men and “the other gentleman kept calling names” and she released her husband “and he went back after him.”
But Nicely’s narrative, written weeks later on Nov. 20, says that after Flanery was knocked down the first time, “Nicole Flanery helped Kenneth Flanery to his feet at which time Kenneth Flanery started taunting [the other man] verbally by stating “you can’t punch” and “stupid fat f**k.”
How the initial narrative of that man taunting Flanery changed to Flanery taunting the person who punched him is unclear.
Nicely, who retired from the Putnam County Sheriff’s Office about two months after he closed the Howlin’ Wolf case, declined to be interviewed for this story.
At least once in her video recorded interview with Nicely two days after her husband’s death, Nicole Flanery does mention the taunts, and, on first reference, because she only uses the pronoun “he” it is unclear exactly who she is claiming made them.
Later in that same interview, though, describing that same scene for a second time, she describes “the other guy” as pacing back and forth after knocking Flanery down the first time and “yelling obscenities at my husband and whatnot.”
More concerns for Nixon
And what of the sixth person who was at the bar and in the courtyard that night?
Nicole Flanery describes him as “an older gentleman” in her interview, and says he is the one who called 911 from his cell phone and handed the call off to her. Why isn’t he named? And why is there no mention of him at all in Nicely’s report even though witnesses acknowledge his presence at the scene of the fight?
Nixon says those questions, the issue with the taunting, along with all the other discrepancies, were the items rolling around in his head in mid-December 2015 when he called the 7th Judicial Circuit State Attorney’s Office and asked for the name of the prosecutor who made the decision not to file charges in the case after reviewing it.
That call was documented on Dec.16 by the woman who answered it.
She sent an email to Miller, and another prosecutor in the office, that referenced the name of the deceased as Kenneth Flanery and said Nixon wanted the name of the prosecutor who “staffed” the case (the term used for a formal case review) with Nicely because he wanted to send “a letter of concern” to that attorney.
Miller’s response to that email was that he didn’t recognize Flanery’s name but might recognize the “fact pattern” of the incident.
Two days later, Miller and Nixon spoke on the phone, and while both men dispute the exact nature of what was said during that call, both agree that Miller acknowledged having a short conversation with Nicely about the case and that Nixon then first expressed concerns about how the Sheriff’s Office had conducted the investigation.
Within the week, just before the Christmas holiday it seems, and a little more than two months since the Howlin’ Wolf fight, Miller decided to review the case himself and met Nicely at a RaceTrac gas station on State Road 207 to pick up a portion of the case file.
It was only after reviewing the file that Miller gave his official position, documented in a July 2016 memo, that said the man who punched Flanery was “reasonably in fear” of being harmed by Flanery, who had a blood alcohol level of .313 milligrams per deciliter and was justified in using force to defend himself and that there would be no charges filed.
But months before the memo was written, Nixon requested a meeting at Miller’s office to discuss what he perceived as misconduct on the part of Nicely and his superiors.
In attendance at the Feb. 9, 2016, meeting at the Homicide Investigations Unit, or HIU, office on Dobbs Road in St. Augustine were Miller, chief assistant state attorney Jason Lewis and HIU investigator Travis Harrell.
It did not go well.
Again, accounts differ about what exactly was said at that meeting, but it, along with the Nov. 25 statement from Nicely that first closed the case, would become the basis for the series of complaints and requests for investigations Nixon would send off across the state asking for someone to fully look into the investigation following the death of his stepson.
Nixon says now, for him, the requests are no longer about seeking prosecution or punishment for the other person, and that it never really was.
He says he always viewed the shot at prosecution as “50-50” and thought that any perceived misconduct on the part of Nicely or his superiors had to be addressed before the State Attorney’s Office could proceed with a case if they chose to. He also admits that Flanery, who the family acknowledges had a drinking problem, shouldn’t have been hanging around a bar after hours.
“I gave up on the homicide a long time ago,” Nixon told The Record in October.
“I can forgive someone for an accidental ... it was an accident, neither one of them should have been there,” he added.
The man who hit Flanery likely wouldn’t have made much of a defendant anyway. Once Flanery was knocked unconscious, at least one witness at the scene said the man looked concerned and Nicole Flanery herself said that he tried to help Flanery and wake him up once he was on the ground.
He also stayed at the scene once 911 was called even though two others hopped in their vehicles and headed home. And Nicely notes in his report that when he called later to tell the man that he wanted to discuss the case further, the man voluntarily drove to the Sheriffs Office for a sworn interview.
But Nixon has said more than once that all his family wanted was “a fair shot at justice” — something he feels they were denied in light of what he views as a flawed investigation and report.
Unanswered questions
Some of the problems that Nixon sees can be explained away. Some may just be legitimate errors or sloppy work. But others seem to stick, and for Nixon there remain enough questions that he would like to have an impartial agency look into it — not the death, but the investigation itself.
Interestingly enough, the issue with the shirt, the first inconsistency that drew Nixon into the report, may have just been a result of bad sentence structure.
The morning of the fight, the deputy wrote: “I then made contact with [the other man involved in the fight] who advised he warned Kenneth to stop damaging the fence at which time Kenneth pulled his shirt off and they engaged in a physical altercation.”
It is a sentence that can read as though Flanery took his own shirt off, or it could mean that Flanery pulled off the other man’s shirt.
In both of that man’s interviews — the audio-recorded one the night of the fight and the video-recorded one days later — it sounds as though the latter was the case. In both interviews he says Flanery “ripped my shirt off.”
But it’s other sentences and statements in the report that Nixon remains focused on, as well as the omissions.
The first is the Nov. 20, 2015, narrative that says that an autopsy was done at the District 23 Medical Examiner’s Office. (This was eventually corrected in a March 2016 supplement to the report.)
They (the Sheriff’s Office) obviously never thought the State Attorney would ever get involved in this. The lies weren’t made to influence a prosecutorial decision, it was meant to keep from getting one.
David Nixon
Another is the issue of who was taunting who and the question of why Nicely wrote, in his section of the report summarizing Nicole Flanery’s statement, that Kenneth Flanery was taunting the man that hit him despite the initial narrative which says the opposite and Nicole Flanery’s statements which also seem to suggest the opposite.
Then there is the Nov. 25, 2015, supplement by Nicely that says the State Attorney’s Office declined prosecution after a “case review.”
Nixon says most of those amount to nothing more than lies and false statements.
In his own digging through the case, Nixon says he also was given screenshots of text messages said to be exchanged between Nicely and another former Putnam County detective who is currently suing the Sheriff’s Office for wrongful termination.
Those messages, the authenticity of which could not be verified by The Record but have been included in many of Nixon’s complaints and requests for independent investigation, appear to show Nicely telling his former colleague that, “I did nothing but what I was told” and that what he was told by his superiors, the screenshots suggest, is “it was nothing to charge.”
After reviewing the case themselves, Miller and others at the State Attorney’s Office seem to agree that there never was anything to charge, which is what they told Nixon at the February meeting that one document says ended in an “impasse” with Nixon growing “increasingly frustrated.”
But if that’s the case, Nixon wants to know why the full case file never made it to Miller’s desk until after Nixon called the State Attorney’s Office and started asking prosecutors about the case himself, and why, after they were made aware, no one looked deeper into the original investigation.
“So a homicide case, the detectives withhold it from you, you find out from one of the parents of the guy that’s killed, you call them to go get it and pick it up at a Highway 207 gas station and you don’t even ask them why you are having to do that,” Nixon said during an October interview.
“They (the Sheriff’s Office) obviously never thought the State Attorney would ever get involved in this,” he said at another point in that same interview. “The lies weren’t made to influence a prosecutorial decision, it was meant to keep from getting one.”
Was that to shield the owner of the bar or the bartender for allowing customers to remain on the premises after hours? Or the man who hit Flanery?
In light of what he sees as a shoddy investigation, Nixon thinks those questions, at least, should be asked.
“Whether it was done to protect her (the female owner of the bar), or to protect somebody else or if [the other fighter] is kin to somebody down there ...,” Nixon said. “Nobody knows because nobody’s ever done an investigation into it.”
“I have no idea, because I don’t know any of the people involved,” he added. “I just know it makes no sense.”
PART II
‘THEY DIDN’T REVIEW THIS CASE’
When David Nixon walked out of his February 2016 meeting with assistant state attorneys Chris Miller and Jason Lewis, he was no doubt frustrated.
The meeting would eventually figure into complaints he filed with the Florida Bar against both Miller and Lewis, and even Miller’s attorney’s response to the complaint against his client characterizes the meeting as ending in an “impasse” with Nixon growing “increasingly frustrated” with the answers he was being given.
The missing witness
In an October 2017 interview with The Record, Nixon said one of the sticking points during that meeting was the presence of a fourth witness who was at the bar the night of the fight.
That witness is often referred to as “the older gentleman” by witnesses and others who have since looked at the case, but there is no mention of him in Putnam County Sheriff’s Office Det. Lynn Nicely’s report, even though Flanery’s wife, Nicole, says she used the man’s phone to speak with 911 after the fight.
Nixon believes the questions he asked the attorneys at the meeting about that “older gentleman” and the answers he received show that the State Attorney’s Office never thoroughly reviewed the case file, even after Miller got it from the Sheriff’s Office in December 2015. He claims the two attorneys argued with him “for 10 minutes saying there was no other witnesses.”
“There is no way they listened to those tapes or those interviews and not known that,” he said.
“They didn’t review this case whatsoever, they just went by what he (Nicely) had written in that report and they weren’t going to change anything in it, and they had no intention of doing anything,” he said. “Now whether they should have, you know, I don’t know, like I said it’s probably 50-50, but they never intended to change the decision of the cops not to prosecute.”
(Miller’s attorney’s response to Nixon’s Bar complaint doesn’t mention the argument about the witness, but it does say that afterward, Travis Harrell, the investigator present at the meeting, did track down the “older gentleman” and “he provided no new information that would have changed the decision not to prosecute the case.”)
At the heart of Nixon’s complaints against Miller and Lewis, though, seems to be what he perceives as their refusal to acknowledge, and help him get an investigation started into, the poor handling of the case by the Sheriff’s Office.
Miller’s decisions, Nixon claims in his complaint that includes 20 bullet points, were “tainted” by the officers’ “misconduct” and that Miller never had “any intention of making a decision that would negatively impact the detectives.”
Nixon says he thinks this is because the assistant state attorneys and the detectives, who often work closely together on cases, need to maintain their relationships and aren’t interested in exposing another’s misdeeds or mistakes. It seems that, for Nixon, it is that cloud of uncertainty — that knowing that Miller was in a difficult position — that keeps him from being certain the case ever had a chance of being prosecuted, if indeed it should have been.
“I always thought it was a 50-50 deal,” Nixon told The Record in that October interview. “But my point is we never had a fair shot at it.”
“These guys, you know right off the bat, were put in a position of making a prosecutorial decision that could be problematic for their friends, the detectives that did it,” he said.
Complaints and mistakes addressed
Though Nixon says he became aware of it earlier, Miller’s attorney’s response to the Bar complaint is the first document that mentions that the Nov. 12 “case review” happened during what is described as “an approximately 30-second explanation of the facts of this case” during lunch at Bono’s.
Miller, according to the response, replied that it didn’t sound like a case that could be prosecuted.
“However, Mr. Miller stressed to Det. Nicely that this was an informal opinion, and if he would like Mr. Miller to review it further, to please send the case materials to Mr. Miller for a more formal review,” the response says, before continuing a few sentences later:
“That was the last Mr. Miller heard of the case until Mr. Nixon contacted the SAO-HIU office on December 16, 2015, asking about the case,” the response says.
But to say that the State Attorney’s Office had been completely kept in the dark up until that point is not entirely accurate either.
Miller’s response also says that he had seen the initial offense report narrative shortly after the incident, though he hadn’t heard about the case again, or spoken with a detective about it, until the Bono’s meeting.
The response also addresses other concerns of Nixon’s, like the information about the Medical Examiner’s Office and the autopsy findings.
Most who have spoken with The Record about the case agree that Nicely entering “District 23” instead of “District 8″ was likely a scrivener’s error.
Because Putnam County is part of District 23, it would be what he was accustomed to writing in his report, even though Flanery ended up being taken to Alachua County, which is part of District 8.
That error was corrected by another detective in March 2016, after Nicely had left the Sheriff’s Office.
But Nixon also claims that Nicely couldn’t have received a cause and manner of death at the time that he entered it into his report because the District 8 office, which was awaiting toxicology results, still hadn’t issued any official findings.
They had issued preliminary findings, though. And Miller’s response points out that detectives, because of the nature of homicide investigations, often don’t have the luxury of waiting for the toxicology screens before moving forward with their investigation.
Though Miller had no knowledge of how the autopsy and its findings were handled in this case, his response says, “At most, Mr. Miller would have assumed that Det. Nicely omitted the term ‘preliminary’ before referring to the Medical Examiner’s findings as of October 15, 2015 in his supplemental report.”
Despite a lengthy rebuttal from Nixon, the Bar ultimately found that the “evidence available does not prove by the applicable standard of proof that Mr. Miller engaged in conduct which involved dishonesty, deceit, and misrepresentation.”
“The objective evidence also does not show that Mr. Miller’s conduct was prejudicial to the administration of justice,” the letter closing the case says.
The letter closing Lewis’ complaint uses similar language saying that the evidence does not show he “acted unethically in his handling of the investigation in the above referenced matter.”
Among his allegations against Lewis, in 16 bullet points, Nixon claims that Lewis prevented an investigation from going ahead into whether Nicely and others at the Sheriff’s Office had engaged in misconduct.
Lewis’ response calls that “patently false and without any merit” and points out that his office’s chief of investigations, Noel Griffin, was notified of Nixon’s allegations and he, in turn, contacted the Florida Department of Law Enforcement’s Jacksonville Office, and they declined to open an investigation.
Nixon, Lewis’ response says, was aware of this just a day after the Feb. 9 meeting as evidenced by emails between Nixon and Griffin that Lewis’ attorney attached to the response.
“Moreover, even after speaking to the FDLE in February 2016, Mr. Nixon filed a complaint including his allegations in April 2016 with the Governor of Florida,” the response says.
Nixon, in his rebuttal to the response, disputes the reply’s timeline and the circumstances of how and why those emails were exchanged. He maintains that he was told that if he wanted someone to look into the officers’ conduct he would have to find an agency — maybe FDLE — himself to do it.
Caught in a loop
Either way, in February, not April, Nixon did send a letter to Gov. Rick Scott — and a copy to Attorney General Pam Bondi — asking that an investigation into his allegations against the Sheriff’s Office, as well as the death of his stepson, be handed over to the state agency.
In April 2016, records show, Scott’s office referred the matter to FDLE and that agency’s Office of Executive Investigation, or OEI, looked into it.
According to letters and documents in Nixon’s possession and filed with his Bar complaint, the agent in charge of the preliminary inquiry went back to the State Attorney’s Office and contacted Griffin who, according to the FDLE investigative report, “stated that the case file involving the investigation of Flanery’s death had been thoroughly reviewed by his office and they had declined to prosecute base on the findings.”
To Nixon, that seemed to miss the point. He wanted the allegations of misconduct looked into, not just the death itself, and circling back to Griffin and the State Attorney’s Office, who in his mind hadn’t handled it properly in the first place, wasn’t going to do anybody any good.
“I’m told to find somebody, I find somebody and they tell them they’ve already done it,” he said in October.
The OEI decided not to open a full investigation into Nixon’s complaint and forwarded his allegations of misconduct against Nicely and his superiors to then-Putnam County Sheriff Jeff Hardy, “for his review and any administrative actions he deemed appropriate” regarding those allegations.
That letter was sent in May 2016.
It wasn’t necessarily the only time the Sheriff’s Office had heard, either directly or indirectly, from Nixon.
In December 2016, Sheriff’s Office Major Johnny Greenwood sent Nixon a letter saying that as a result of his “initial complaint” officials had found one error in Nicely’s report but deemed it not “evidentiary in nature, and did not change the outcome of the criminal investigation.”
“It was determined after reviewing your complaint(s), that the allegations did not warrant a formal administrative investigation being conducted by the internal affairs function of the agency,” the letter, which was actually sent in response to a public records request, says.
What the agencies say
And that’s about where Nixon’s allegations remain today, Greenwood told The Record in January when he sat down with Putnam County Sheriff’s Office Chief Deputy Col. Joseph Wells to talk about the case.
“Internals are really made for misconduct,” Greenwood explained. “You’ve got to show some kind of intent.”
And there is not really anything that Nixon has ever pointed to that rises to the level of intentional misconduct on the part of Nicely or anyone else involved, he said.
But that’s not to say there weren’t missteps in the case. There were at least two.
Wells acknowledges that getting the Medical Examiner’s Office District wrong was, at least, sloppy and that Nicely was “counseled” to double check such details as a result.
The other issue that Wells said he had with Nicely’s report was the failure to track down the “older gentleman” that the other witnesses mention, though, at least according to Wells, he did make an effort to do so.
“If there had been two areas that would have been them,” Wells said.
He characterized Nicely’s report as “not perfect” but said “the investigation itself was thorough.”
As for characterizing a 30-second lunch conversation as a “case review” even after the assistant state attorney seems to have stressed that it was not, Wells and Greenwood said they didn’t want to speculate what Nicely might have understood after that lunch meeting, but not forwarding charges to the State Attorney’s Office, because they aren’t required by law to do so if they don’t think their investigation warrants it, is not indicative of wrongdoing.
And if Nicely, they pointed out, had been instructed to close the case by his superiors, as the text messages suggest (they were already aware of the text messages, when asked) Nicely had a grievance process available to him to have that decision reviewed — something that didn’t happen.
But, Wells said, a review of the Howlin’ Wolf case, and the manner in which it was closed, did prompt a change in procedure at the Sheriff’s Office.
Shortly after taking office in January 2017, Wells said Sheriff Gator DeLoach “made it clear to investigators that they are to include the full case files in significant cases” when asking for a prosecutor’s opinion on a case.
“I don’t think it’s fair that we ask the [assistant state attorneys] to make a decision and hold them to it over a lunch meeting,” Wells told The Record.
That change in policy was made in a February or March 2017 meeting, according to Wells.
There is no written record of it, but Wells said it was passed from the Sheriff in a staff meeting through Nicely’s former captain, Dominic Piscitello, to the other detectives.
If it’s true, it is likely welcome news to Miller, Lewis and 7th Circuit State Attorney R.J. Larizza who also sat down with The Record to discuss the case.
They too, acknowledged mistakes, but not necessarily on their part.
Larizza said he wouldn’t speculate what was in Nicely’s head when he left that lunch meeting more than two years ago, but putting in his report that it had been reviewed was “an error” and was “wrong.”
“It was wrong because it’s not an official position,” he said.
But, once they became aware of it, as is stated in Miller’s Bar response, they got the case file and reviewed it.
Seated in December at the same table where Nixon met with Miller and Lewis nearly two years earlier, the three prosecutors discussed the timeline of the Howlin’ Wolf case and other death cases generally.
One of the harder parts of their job, they agreed, is sitting down with the family of someone who has died and telling them that either there is no crime to prosecute or that they don’t have the evidence to take it to a jury.
But Nixon, and his family, weren’t afforded that conversation.
Not stopping
Nicole Flanery says she only got a phone call from Nicely saying there would be no arrest or prosecution in the case.
“I was upset and called David,” she said during a brief phone call in January.
Led to believe by a Sheriff’s Office report that the case had been reviewed by prosecutors, Nixon would endure, at least from his perspective, deception and half-truths, or perhaps just sloppiness and simple indifference, before he was ever invited to the prosecutors’ table.
And, at least to Nixon, he continues to get more of the same.
He admits at times, and in his letters, that he has grown distrustful of the process, but said in December he keeps “thinking somebody in the state system is going to do something.”
All of that, taken together, may explain his persistence.
Nixon’s wife and Kenneth Flanery’s mother, Renee Tattershall, hinted at some of the thinking during the same December meeting.
Seated at a table just off her kitchen, she was showing off photos of the son that everyone called by his middle name, “James.” One was taken the October afternoon that they were last together to watch that Florida Gators football game, just hours before the fight.
“This is James and the boys the last time I saw him before I left for work that night,” she said, holding up her phone to show a photo of the father, with his sons who are triplets. He was wearing the blue Gators shirt that Nixon would eventually see him wearing in the crime-scene photos.
Tattershall is a nurse, so there was a toughness, a certain matter-of-factness, about her as she swiped her phone screen.
“This was the next time I saw him,” she said holding up a picture of Flanery lying in a hospital bed, connected to the machines keeping him alive.
“It’s an ongoing thing to try to get some recognition,” she said, moving on, and pointing out that the fight and her son’s death never even made the local paper.
“It’s like he never existed,” she said. “That hurts.”
Nixon has filed many other complaints and letters, including one last year asking the Office of Statewide Prosecution to look into the case.
That, he says, the office declined, in part, citing conflict of interest concerns because Lewis once worked for the office and because Piscitello’s daughter currently works for the office.
Nixon says that is further proof that Larizza’s office should have recused itself from the matter, not only because of the working relationships of everyone involved, but because Piscitello’s son is also a prosecutor in Flagler County.
(Prosecutors involved in the case say the younger Piscitello’s assignment is to the Flagler County misdemeanor division and he was not in any way involved in discussions involving the Howlin’ Wolf case.)
Nixon continues, though, determined to get someone to look deeper into the case and he doesn’t appear to be slowing down.
“The only resolution for me would be if someone would take possession of the case,” he said during the October meeting with The Record, “and I guess it is going to take the governor, best I can tell, to reassign the investigation of the state attorney’s office and the officers to another prosecutor.”
Since recovering from a November stroke, and learning in December that the Florida Bar had closed the cases associated with his complaints against Lewis and Miller, he’s filed appeals of those decisions.
He’s also, within the last two months, sent another letter to Scott asking the governor to appoint an “uninvolved prosecutor” to “review” his allegations.
Nicole Flanery, who, while fighting back tears during that January phone interview, described her husband as a “good-hearted man” to whom “family was everything” and said all of Nixon’s work is done with her blessing and her gratitude.
“I’m thankful for it,” she said. “I know I couldn’t have pursued it this far or had the time or even the strength to do it.
“I tell him all the time I’m thankful for him.”
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