Court documents call into question the timing of Palm Beach State Attorney Michael McAuliffe's decision to drop felony charges against two former cops who kicked and beat a handcuffed suspect in the head.
The memo an assistant state attorney wrote recommending that the charges be dropped is dated September 22, one day after she signed an official document declining to prosecute the case. The timing suggests the memo was written to justify a decision that had already been made -- and it had been, says Paul Zacks, chief assistant state attorney.
Zacks says Danielle Croke, the lead prosecutor on the case, dictated the memo on September 21 and signed it the next day. But discussions about revising the charges in the case had been going on for weeks at that point, ever since prosecutors viewed a newly enhanced video of the beating. "It's not like we decided on September 21," Zacks says.
In June 2009, the Palm Beach State Attorney's office filed felony
charges against former West Palm Beach police officers Louis Schwartz and Kurt Graham, who were
caught on a 2008 surveillance video kicking and beating a robbery suspect in the head while the man lay
handcuffed, face-down on the ground. One kick was so violent, it lifted the suspect, Pablo Valenzuela, in the air. Afterward, Graham allegedly lied to his supervisor,
saying Valenzuela had a
knife that he was attempting to kick away.
Schwartz, meanwhile, wrote an incident report saying the suspect had tried to bite Graham.
The beating video sparked public outrage, and Graham and Schwartz were both charged with official misconduct, conspiracy to committ official misconduct, and battery.
This September, after two years of work on the case, McAuliffe abruptly dropped all of the
charges except for a misdemeanor battery charge against Graham. On September 8, Zacks says Schwartz's attorney showed him and other prosecutors new, slowed-down video footage that indicated Valenzuela may have tried
to bite the cops before they started beating him.
In the enhanced video, Graham is kneeling beside the handcuffed Valenzuela. The officer looked around "like, what was that?" immediately before punching the suspect for the first time, Zacks says. Schwartz joined in, kicking Valenzuela, and then Graham stood up and kicked him again -- so hard that the man's body lifted off the ground.
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And because Schwartz had long insisted Valenzuela was trying to bite Graham, prosecutors weren't sure they could disprove that claim in court. "We were drilling down to the specifics of what we could prove and what we couldn't prove," Zacks says.
Croke mentioned the video in the September 22 memo she wrote
to McAuliffe recommending that the charges be dropped. She also noted that because Graham's lie about the knife was an oral statement -- not written in a report -- she couldn't prove official misconduct.
The day before she wrote the memo, Croke signed a
"nolle prosse" in the case, stating, "Although there was probable cause for arrest and
charge of the Defendant(s)," the state decided not to prosecute. Croke signed this official
document on September 21 and filed it with the clerk of court at 9:21 a.m. the next day.
Based on this paper trail, the documents suggest Croke knew she would drop the
charges before she asked her boss for permission to drop them. Zacks says this is because they had been discussing the case for weeks, and Croke dictated the memo on September 21, the same day she wrote the nolle prose. Croke resigned from the State Attorney's Office eight days after the charges were dropped.
An ethics complaint filed against McAuliffe alleges that the state attorney dropped the charges
after meeting with representatives from the police union whose support he was hoping to win
in his reelection campaign. Zacks admits there was a meeting -- although he is not certain of the date -- and union reps did ask McAuliffe to reconsider the case. However, Zacks says that union reps often make such requests and that prosecutors take a closer look at cases when that happens. In this case, the enhanced video evidence presented by Schwartz's attorney "changed the course of our analysis."
"That's really all that was done here," Zacks says. "Mr. Duncan [Schwartz's attorney] showed us something we hadn't seen before."