FHP - 'Tainted' Drug Charges Dropped

TAMPA TRIBUNE - SATURDAY, FEBRUARY 26, 2000

FHP - 'TAINTED' DRUG CHARGES DROPPED
By Sarah Huntley - Tribune Staff Writer

The U.S. Attorney says the cocaine case was tarnished after a FHP trooper admitted he had filed a misleading arrest report.

Federal prosecutors, facing the possibility of a judicial inquiry that could have threatened hundreds of drug cases, dropped all criminal charges Friday in a cocaine investigation tainted by allegations of law enforcement misconduct.

The extraordinary announcement, made by new U. S. Attorney Donna Bucella, followed the revelation two months ago by a state trooper involved in the case that he had deliberately filed a misleading sworn report describing the arrest.

The trooper---who was testifying under oath before a U. S. magistrate---said he and other officers routinely withheld information from such reports to hide the involvement of federal agents in major drug investigations.

Bucella, who was flanked by officials from the FBI and the Florida Highway Patrol, said her office could not continue with the prosecution "without moral tarnish."

"The public legitimately feels that any law enforcement impropriety related to a prosecution taints that prosecution," she said in a carefully worded statement. "We understand that and share the public's moral distaste. It just did not seem right to proceed."

Bucella took no questions.

Defense attorneys in the case immediately lauded the decision.

"This is great news for all people in America," said Carl Lida. "I think the U. S. attorney's office did the right thing."

Beyond praise, the announcement also brought the promise of freedom to three defendants in the case: Michael Flynn, Dewey Davis and Norman Dupont. Davis and Dupont have been in jail awaiting trial for 10 months: Flynn has been out on bond.

The controversy grew out of Flynn's arrest on May 19, 1998. The 40-year-old Orlando man was charged after his car, loaded with 220 pounds of cocaine, stalled on Interstate 4 near Lakeland.

In his arrest report, Trooper Douglas Strickland made it sound as if he happened across the vehicle by chance and "grew suspicious" only because Flynn wouldn't open the trunk.

What Strickland did not say was that the arrest resulted from a reverse sting---that he already knew cocaine was in the car because he had watched undercover agents load it earlier that day. He also knew the FBI had rigged the vehicle with a remote-control switch that killed the engine and was the cause of the "breakdown."

The troopers arrested only Flynn at that point. He was jailed in Polk County.

State prosecutors, after learning the truth about Strickland's arrest report, refused to file charges against Flynn and ordered him freed.

But nearly a year later, federal prosecutors charged Flynn and the others on the basis of the same incident. Flynn was accused of transporting cocaine; Davis and Dupont were accused of being the dealers behind the alleged transaction. Had they been convicted, they could have been sentenced to terms ranging from 10 years to life.

Prosecutors continued to insist Friday they had enough evidence to prove all three violated the law.

"It is difficult for me, the assistant U. S. attorneys and law enforcement officers responsible for this prosecution to let serious crime go unpunished," Bucella said.

Bucella also defended Strickland, saying he did not intentionally mislead the judge. The law did not require the trooper to include every fact in the arrest report, she said.

"His actions in preparing the affidavit exhibited a good-faith attempt to prevent the defendants from being tipped off regarding the undercover activity." She said.

Bucella nonetheless acknowledged that "the effect of the affidavit is of concern."

The U. S. magistrate who took Strickland's testimony in December, Elizabeth Jenkins, said then that his conduct was "reprehensible." Jenkins also said she found it "particularly disturbing that no one in the federal prosecution of this case apparently sees a problem with this practice."

Jenkins nonetheless ruled the case could continue, saying the defense hadn't shown that Strickland's conduct impaired its ability to obtain a fair trial.

In recent weeks, however, Chief U. S. District Judge Elizabeth Kovachevich began contemplating a defense request to hold additional hearings exploring the possibility that other cases have been poisoned by similar affidavits.

The Tampa Tribune has learned that Kovachevich's clerk phoned defense and government attorneys Wednesday to see how much time would be needed if she allowed those hearings.

At least one defense attorney said he believes that call influenced the outcome.

"The timing of this is not coincidental," said Jon May, one of two lawyers representing Flynn.

May speculated that the prospect of court hearings may have given pause to law enforcement officials who had been pushing for the case to continue.

Nonetheless, May said he is "very grateful the U. S. attorney had the courage to halt this tainted prosecution."

Though the legal case is over, the controversy may not be. Defense lawyers say they plan to ask the House Judiciary Committee to hold congressional hearings.

"This was something of a Pyrrhic victory," Flynn's other attorney Mark NcJame, said Friday. "We are delighted for our clients but frustrated we were not given the opportunity to hold a full hearing."

Davis' attorney, Frank Rubino, agreed. "This could just be the tip of the iceberg. We don't think it is fair for the rest of the cases to be buried," he said.

Bucella ignored a reporter's question about the existence of other cases. During the news conference, she suggested the trooper's decision was influenced, in part, by the shooting of two Tampa detectives and a trooper in an unrelated case earlier that day. She also said a satellite breakdown caused technical problems with officers' pagers.

But the Tribune has previously reported that the same trooper filed a similar affidavit in a separate case as early as 1995, and Strickland himself said the practice had been going on for some time.

The day after the Tribune report, FHP announced plans to give additional training to all its troopers involved in drug interdiction cases. Bucella said Friday that her office, the FBI and state police are working together to put other safeguards in place. She did not elaborate.

News of the dismissal rippled quickly through the local legal community.

"Hallelujah!" said former federal prosecutor Steve Crawford. "The prosecutor's office deserves a lot of credit for stepping up to the plate."

Crawford said the relationship between law enforcement and the U. S. attorney's office is a critical one, but "a prosecutor has to be able to make the tough calls."

Another former federal prosecutor, John Fitzgibbons, said dropping the charges is sure to send a strong message. "In America, we play by the rules, and that includes law enforcement," he said. "One would hope this decision will strongly deter this kind of conduct."

*Sarah Huntley covers federal courts and can be reached at (813) 259-7616.