howard-finkelstein-web.jpgFORT LAUDERDALE — The Broward Public Defender’s Office will move to have hundreds of cases involving sheriff’s deputies who allegedly obtained steroids through questionable means dismissed or reopened.

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Public Defender Howard Finkelstein said his office has found 184 closed cases since 2008 in which the deputies in question were witnesses. Currently, his agency is defending 55 cases involving the 26 deputies who, according to investigators, obtained the drugs from the PowerMedica and Da Firm pharmaceutical companies.

Based on a 1963 U.S. States Supreme Court ruling known as the Brady Rule, prosecutors are required to disclose and turn over to defense attorneys information that may be favorable to the accused. A Broward Sheriff’s Office report said 26 deputies of varying ranks were targets of the investigation. Finkelstein said his office was never informed that those deputies were under any type of investigation, even though they were witnesses in hundreds of criminal cases.

“We will be responding in several ways. We will be moving to dismiss all 55 pending cases due to prosecutorial misconduct. We will be notifying the defendants who were part of the group of 184 disposed cases, where two years have not elapsed since disposition about these developments,” Finkelstein said, referring to the time limit in which attorneys may seek to re-open a case.

Finkelstein said he is also conducting a review to determine whether to ask the U.S. Department of Justice to investigate possible civil rights violations or petition Gov. Rick Scott to assign a special prosecutor.

The Broward Sheriff’s Office (BSO) conducted a criminal investigation into the methods the deputies used to get the muscle-building and anti-aging drugs from PowerMedica and Da Firm. During the probe, several doctors whose signatures appear on some of the prescriptions gave statements saying they “were fraudulent” and that they did “not authorize” them. The final report concluded deputies may have obtained “controlled substances through fraudulent means” and that there was “evidence to support numerous violations” of state statutes.

None of the deputies has been charged with any crimes or has faced disciplinary action.

While BSO conducted the investigation, it has said responsibility for forwarding such information rests with prosecutors.

“The obligation to provide exculpatory information to defense counsel under [the] Brady [Rule] is upon the prosecution, not law enforcement,” BSO spokesman Jim Leljedal said in an e-mail to South Florida Times. “Mr. Finkelstein is well aware of this. The Broward State Attorney’s Office is in the best position to determine whether the information shared with them by BSO is Brady material requiring disclosure to defense counsel.”

Finkelstein agreed with that position up to a point.

“BSO is correct in that it is the State Attorney’s Office that must provide Brady material to the defense – assuming it has been turned over by BSO, as well as the state having an affirmative duty to seek it out,” Finkelstein said.

Officials at the Broward State Attorney’s Office declined comment but they did provide a copy of a memorandum showing they closed the case involving Da Firm, at BSO’s request. One official said BSO never provided the State Attorney’s Office any information involving PowerMedica, likely because federal authorities were handling that case.

“In late May of 2008, BSO Detective Lisa McElhaney requested assistance from the Broward SAO in serving subpoenas for the production of documents and appearance of witnesses for statements for an investigation pertaining to the obtaining of controlled substances by fraud by BSO Deputies,” Assistant State Attorney David Schulson wrote in a Jan. 28, 2009 close out memo.  “After this aspect of the investigation was completed, ASA [Assistant State Attorney] Tim Donnelly and I met with Captain Kevin Butler and Detective Lisa McElhaney on January 15, 2009 to discuss whether the investigative file prepared by Detective Lisa McElhaney would be formally reviewed by the Broward SAO or the BSO Division of Internal Affairs.”

“On January 27, 2009, Captain Kevin Butler advised me that BSO has decided that the investigation conducted by Detective Lisa McElhaney would not be presented to the Broward SAO for formal review,” Schulson further stated. “The Investigation will be assigned to the BSO Division of Internal Affairs for review. Thus, this matter should be closed.”

BSO officials are not discussing their review and not releasing any documents related to the case or explaining why it has languished since that time.

Nevertheless, according to documents obtained by South Florida Times, the internal affairs investigation was reclassified and downgraded to a “Preliminary Investigative Inquiry” or PII months ago.

The deputies involved were issued memorandums stating the policy violations had been removed and they were warned not to “disclose any information” regarding the reclassification or inquiry.

“Preliminary inquiries take place before any criminal or internal affairs investigations,” a source close to the situation said. “This is unusual since [Sgt. Lisa] McElhaney had already completed a detailed criminal investigation so there is no need for any PII. It makes no sense.”

 

EJones@SFLTimes.com