Missing word in BSO's Miranda warning allows accused killers to go free
By Jon Burstein
July 13, 2005
He's on videotape calmly recounting to a Broward Sheriff's detective why he shot his best friend. A jury needed less than two hours to convict him of the May 2000 slaying. A judge sentenced him to life.
And three months ago, John Q. Ripley walked out of prison.
One simple word helped him regain his freedom. That word, missing from a Miranda rights form used by the Broward Sheriff's Office, has or could undercut at least 24 other cases against suspected killers, robbers and drug dealers. The word has left a trail of overturned convictions, dismissed charges and weakened cases for prosecutors.
Four suspected killers have either been freed from prison or seen their cases dropped. Another three accused murderers will receive new trials. The statements of four more accused killers have been or could be suppressed.
From February 1999 to November 2002, deputies read almost all arrestees a Miranda rights form that the courts have found was flawed. The form advised suspects they could request an attorney before questioning, but omitted mentioning that they have a constitutional right to have an attorney present during questioning. Courts have found that the missing word means juries can't hear the defendants' often damning statements to deputies because they weren't properly advised of their rights.
Sheriff's top officials insisted on using the form even after State Attorney Michael Satz urged them to change it as early as May 2001.
The courts have set clear parameters on what cases are affected by the disputed form, limiting the number of successful legal challenges. But when defendants' statements are suppressed, the cases sometimes have been irreparably harmed. Defendants who have benefited include:
Ripley, 48, who said on tape he "had to kill" his friend and led deputies to the murder weapon. An appellate court tossed out his first-degree murder conviction because of the flawed rights form and detectives illegally arresting him outside their jurisdiction. With a jury prevented from hearing his statements or any evidence gathered because of them, prosecutors dropped the case.
Nneka West, a Dania Beach woman convicted of first-degree murder and sentenced to life in prison for taking part in a September 1998 drug rip-off that left her boyfriend dead. After she was granted a new trial, she pleaded no contest to second-degree murder. She walked out of jail in April.
Willems Calixte, a Pembroke Park man charged with two counts of second-degree murder. Authorities said he participated in a botched robbery that left his brother and an accomplice dead. Without his statement to detectives, prosecutors said they had to drop the case against him.
Walter Dendy, sentenced to life in prison, and Neal Bross, sentenced to 15 years, for a fatal acid throwing attack. Jury selection for their new trial is scheduled to begin Mondayfor the July 2000 death of Leonard "Rudi" Houda. Jurors won't hear incriminating statements Dendy and Bross gave authorities after their arrests. Dendy's attorney, Fred Haddad, said his client's statement was "devastating" at the first trial.
"There's a saying in criminal law that a fish doesn't get caught if it keeps its mouth shut," said defense attorney Eric Schwartzreich, who represents a man whose 30-year prison sentence for attempted robbery was overturned because of the form. "Confessions are often the most damaging part of a defendant's case."
The disputed form plagued arrests made even last year, court records show. In a March 2004 insurance fraud case, deputies gave the defendant an outdated rights form to sign. Defendants' statements in two other 2004 cases were tossed out when deputies were unsure if they read the new rights form to suspects.
Documents obtained by the South Florida Sun-Sentinel show Satz recognized problems with the rights form in May 2001. In a letter to Sheriff Ken Jenne that month, he "most strongly" recommended changing the form, including explicitly advising suspects of the right to an attorney during questioning.
Sheriff's administrators dismissed Satz's suggestions, internal Broward Sheriff's Office memos show.
"Adding additional cautionary warnings pertaining to a suspect's rights to counsel are not mandated by law and are in my opinion an additional obstacle for our investigators to overcome," wrote Lt. Col. Thomas J. Brennan in a May 29, 2001, memo to Undersheriff Thomas Carney.
That same day, Major Tony Fantigrassi wrote to Brennan that Patricia Windowmaker, an attorney within the Sheriff's legal department, revised the form in February 1999 "after conferring with the State Attorney's Office."
"This form was sanctioned by them prior to our approval and distribution," Fantigrassi wrote about Satz's office.
But Chief Assistant State Attorney Chuck Morton said Thursday that Windowmaker never talked with Satz or anyone else from the State Attorney's Office about the Miranda rights form before changing it.
Sheriff's spokesman Jim Leljedal said that beyond the memos, he didn't know how the disputed rights form came to be introduced and why administrators declined to use the form suggested by Satz. Windowmaker referred phone inquiries to Leljedal. Fantigrassi has since retired and Brennan and Carney have announced their retirements.
"We work with Mr. Satz and his prosecutors everyday," Leljedal said. "We work arm in arm, but we don't always agree. We are in agreement today. The form that we now use is fine with Mr. Satz and his people."
Leljedal said the Sheriff's Office disagrees with the court rulings.
"The fact that the word during wasn't included in our opinion shouldn't negate the form, but we'll have to accept the rulings," he said.
Defense attorneys did not seem to pick up on the missing word until April 2002. That's when Miami attorney Ellis Rubin, known for his colorful and sometimes controversial defense tactics, caught the omission.
Rubin first successfully challenged the rights form in the case of Gorman Roberts, a teenager convicted of drowning a 5-year-old autistic boy. Roberts, who is borderline mentally retarded, was sentenced to three years in prison after a jury convicted him of manslaughter in the February 2002 death of Jordan Payne.
In May 2004, the 4th District Court of Appeal in West Palm Beach tossed out the conviction and ordered a new trial in which the jury would not be able to hear his statements to deputies. Once Roberts' police interview was suppressed, prosecutors dropped the case against him, citing insufficient evidence.
The Broward State Attorney's Office consistently has argued that when a defendant is advised of the right to an attorney before questioning, it's clear the defendant knows there's a right to counsel at any later point.
"The use of the preposition `before' is not intended to exclude the future," assistant state attorney Morton said.
The 4th District Court of Appeal has tossed out convictions and suppressed statements only in cases where the trial attorney challenged the form's wording. The Florida Supreme Court and U.S. Supreme Court have declined to review the issue so far.
Defendants' appeals have failed when the issue wasn't raised at trial. No court has ruled the form warrants a finding that a defendant had ineffective assistance of counsel, prosecutors said.
That's little comfort to people like Denton Kimble. Kimble was a close friend of David Steven Moore -- the man Ripley admitted gunning down.
Kimble, 65, remembers the anger that welled in him when he learned Ripley's conviction was overturned. He's bothered to learn that the Sheriff's Office may have continued to use the Miranda rights form after being urged to change it.
"Someone dropped the ball along the way I guess," Kimble said.