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Captain of Deceit

Scheff, in keeping the innocent Frank Lee Smith on death row, couldn't keep his story straight

Richard Scheff has long been known in courthouse circles as an excellent trial witness -- smooth, confident, authoritative, and credible. As a result of his eloquence, a stack of laudatory letters from prosecutors in the Broward Sheriff's Office fills the captain's personnel file. Scheff, a homicide detective during the '80s and early '90s, was a master at both investigating murder suspects and helping to convict them.

This year, however, Scheff found himself on the wrong side of an accusation. Defense attorneys alleged he had lied in court to keep Frank Lee Smith, who was proven innocent by DNA tests last year, on death row. After the Smith case blew up in the media, Florida governor Jeb Bush ordered an investigation into Scheff's actions. And when it came time for the captain to defend himself during a deposition taken by special prosecutor Lawrence Mirman, his polished act disintegrated. Scheff, angry and stammering, seemed unsure of himself and complained that he felt as if he were being "crucified."

But the deputy really didn't have much to worry about. On July 3 Mirman determined there wasn't enough evidence to charge Scheff with perjury, and the case was closed. After the decision Scheff's boss, Broward County sheriff Ken Jenne, announced that his trusted deputy, who oversees BSO's countywide operations and makes $85,000 a year, had been exonerated. (Scheff didn't return phone calls from New Times seeking comment.)

Smith, who was sentenced to death for the 1985 murder of eight-year-old Shandra Whitehead, never saw his own vindication. He died of cancer in prison in 1999, a year before DNA tests showed Shandra's real murderer was serial rapist and killer Eddie Lee Mosley, who is now confined to a state mental hospital.

During 14 years behind bars, whenever Smith looked for justice, he usually saw Scheff; the detective interrogated him, charged him, and testified against him prior to his conviction. Then he showed up at hearings during the appeals process to help seal Smith's fate. In so doing, court records show, Scheff lied in his testimony, contradicting himself numerous times. First he denied that Mosley was ever a suspect in the murder, then admitted the opposite. Scheff denied at trial that he'd shown any witness a photographic lineup that included Mosley; then, years later, twice testified that he had done so. And when Mirman deposed him on March 6, Scheff made a startling declaration: He admitted under oath that he really didn't remember whether or not he'd ever shown the Mosley photo lineup.

Mirman, who issued a 53-page report detailing his investigation, says he chose not to charge Scheff because he couldn't prove the former homicide detective had knowingly lied. This explanation provokes Smith's advocates, who call the probe a whitewash. "Mirman was only trying to exonerate the criminal-justice system," says Marty McClain, who served as one of Smith's postconviction lawyers. "He didn't want to see the truth, or he simply refused to see it."

One truth that emerges from court records is that each of Scheff's false statements and contradictions served the same purpose: to keep Smith behind bars. And Scheff had reason to protect his case; breaking the Whitehead murder had won him "Deputy of the Month" honors and initiated his climb up the BSO administrative ladder.

The tangled tale revolves around Mosley, who had been in and out of prison several times in the decade before he raped and killed Shandra Whitehead on April 14, 1985. Scheff was well aware of Mosley's crimes; the detective had investigated Mosley for two murders in 1984. Common sense dictates that Mosley would immediately have been considered a suspect in the little girl's murder: He not only lived in the same northwest Fort Lauderdale neighborhood as Shandra but was her mother's cousin. A case of mistaken identity four days after the murder by an eyewitness named Chiquita Lowe, however, led BSO to pursue Smith.

After Smith was charged with the murder, defense attorney Andrew Washor deposed Scheff and peppered him with questions about other suspects. Scheff never mentioned Mosley, even when asked specifically if any of Shandra's relatives had been considered as possible culprits. Scheff's failure to name Mosley, argues McClain, was the detective's first lie in the case.

During Smith's trial in 1986, Scheff admitted on the stand that Mosley had indeed been a suspect. But the damage to the defense had already been done; Scheff's failure to identify Mosley in the deposition prevented the defense from properly investigating the serial killer before the trial. And during his testimony Scheff downplayed Mosley's significance and swore he hadn't shown witnesses a photo lineup of the serial killer. "Scheff didn't want to help the defense in any way to shift blame to Mosley," McClain surmises.

After Smith was sentenced to death, his postconviction lawyers set out to prove their hunch that Mosley was the real killer. In 1989 private investigator Jeff Smith showed Lowe a photo of Mosley. The witness had an epiphany: "When I looked at the picture, everything came back to me," she wrote in an affidavit. "I swear on my mother's grave that the man in the photo is the man I saw on the street the night when the little girl was raped and killed. I identified the wrong man in the courtroom."  

Lowe also insisted detectives never showed her a photograph of Mosley, suggesting Scheff had told the truth during trial about the lineup. But in a 1991 hearing that dealt with Lowe's recantation, Scheff dropped a bombshell. He testified he had shown a photo lineup including Mosley to the witness. In effect the deputy was admitting he had lied during the 1986 trial. He explained it by saying he must have been confused by lawyers' banter while he was on the stand. Confusion, however, doesn't account for the fact that there was no Mosley lineup presented at trial. The lineup also was absent from the BSO file given to Smith's lawyers. Even the man who prosecuted Smith, William Dimitrouleas, now a federal judge, has testified that he never saw it.

"[Scheff's] motive [at the 1991 hearing] was to show that you can't believe Chiquita Lowe," McClain says. "They wanted to shake her credibility. It was all geared to make her look bad."

It wasn't until 1998, during another hearing in Smith's case, that Scheff actually brought the mysterious Mosley photo lineup to court. He testified that it had been in the BSO's Smith file all along and stated confidently that he remembered showing it to the witness.

Apparently the judges found Scheff more believable than Lowe -- Smith was never awarded a new trial.

Perhaps Scheff's most incredible sworn statement came during his deposition by Mirman, the special prosecutor. Sitting in the office of his private attorney, David Bogenschutz, Scheff again managed to contradict himself, according to a transcript of the sworn interview obtained by New Times. In a key exchange, Mirman asked Scheff if he remembered showing the Mosley lineup to Lowe:

Scheff: "I... I... I cannot honestly at this point, it's... it's almost sixteen years, tell th... what... now, I can't, I can't... okay, I'm sorry I'm just..."

Mirman: "Take your time.... We realize you're nervous."

Scheff: "No I'm... it... it... it's not, it's not nerves, it's... it's anger.... Um, I do not, I cannot say that I have some distinct personal clear memory that I showed this lineup to Chiquita Lowe."

At another point in the interview, his memory seemed to improve. He said he would be willing to wager "dollars to doughnuts" that he had shown Lowe the Mosley lineup. But in the end Scheff remarked, "Who the hell can remember this stuff?"

Scheff's admission that he couldn't remember, McClain argues, is a confession that the detective lied during past hearings. But Mirman places all of Scheff's untrue statements and contradictions in the same category: unfortunate mistakes. "It's not enough that someone gives false testimony," Mirman explains. "They have to knowingly give false testimony, and there is a difference between saying something that is incorrect and lying."

Mirman admits that Scheff's crisscrossing statements over the years make the truth impossible to discern. But the special prosecutor decided one thing: Lowe, in large part due to the fact that she'd identified the wrong man at trial, wasn't credible. Mirman made no such judgment about Scheff. Instead he tells New Times that Scheff's position as a BSO captain gave him an "air of weight and credibility" that worked in his favor.

Mirman devised a theory to explain Smith's wrongful conviction; he believes Smith, by sheer coincidence, was outside the Whitehead house trying to steal a television set after Mosley committed the murder. The scenario explains why Shandra's mother, who apparently caught a glimpse of the killer fleeing as she arrived home, identified Smith at trial (though she admitted seeing only the man's shoulders as he ran away). "It's the explanation that includes the least amount of conflict," Mirman says. "How else can you explain it?"

Walsh, the private investigator, has another idea. Scheff staked his reputation on the fact that Smith committed the murder, and he was willing to say almost anything to ensure the conviction. Walsh accuses Mirman of smearing Smith by insinuating he tried to steal the TV. (Several relatives have always maintained Smith was with them the entire night of the murder.) "Mirman is perpetuating the injustice to Smith and Smith's family," Walsh says.

McClain argues the Mirman theory also deflects criticism from the justice system, which he contends failed miserably in the Smith case. The lawyersaves his harshest criticism for the deputy who led the charge against his hapless client. "Scheff is like a charlatan," McClain says. "He divines who committed a crime, and then he makes it so."


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