TUESDAY NOTES/MEET "MR. X"
Kerly Alce and his family, dragged through hell ..."Try it and lose it" - one of the most despicable SAO episodes in recent memory ended Tuesday. In a county that has executed at least one innocent man, and wrongfully convicted and imprisoned untold numbers, it still ranks right up there, despite the not guilty verdicts.
The case wasn't well publicized, and it didn't involve a rich, powerful, political, or law enforcement defendant. Just an ordinary, honest citizen, falsely accused of a wildly overcharged allegation that was never investigated by BSO or the SAO. Unfortunately, it happens every day in Broward.
The Defendant's name is Kerly Alce, previously identified here as "Mr. X" in October, 2008 (See "The Upside Down World Of Mike Satz"). He was originally charged with two third degree felonies, Aggravated Assault With A Firearm and Carrying A Concealed Weapon, from an incident at a strip club back in January, 2007. Those charges were dropped, since it became apparent that no crime was committed, and it was proven that Alce had a concealed weapons permit (he had no prior criminal record, naturally). Alce works in construction and at Red Lobster, and attends school.
Unfortunately for Alce, the ASA handling the case conferred with Tony Loe, after learning of a possible new witness to the incident. The charge was then upfiled to Attempted Murder 2nd Degree nearly two years later ("because it's easier to prove than Aggravated Assault"), based on a one minute statement taken by the ASA of the new "victim" on a cassette recorder in the courthouse. No police officer or SAO investigator ever bothered to speak to this individual from the date of incident up to today's trial date, and the discovery submitted to the defense was identical to the previous submission on the former third degree felony charges. The new "victim's" name did not appear anywhere except on a witness list. Alce, meanwhile, was now facing life in prison.
As previously stated, no further investigation was ever conducted, outside of the woefully inadequate one conducted in January, 2007. The original case was filed based on one gun-toting bouncer's statement, and Alce's statement that consistently affirmed his innocence. Numerous other eyewitnesses were never contacted. "Spontaneous" admissions of guilt were attributed to Alce, despite the fact they were never recorded or referenced in his taped interview later the same night. Depositions showed incredible inconsistencies between the original and subsequent "victims", in addition to the five felony convictions and roughly fifteen prison years the 2nd mystery complainant had under his belt. Alce's gun was never fired, and, from the bouncer's deposition alone, apparently never drawn.
Despite the obvious problems, the SAO wouldn't drop the case. The only offer was three years in Florida State Prison, day for day. Statements from the defense regarding comparisons to the Eleanor Adderley matter were routinely scoffed at (she wasn't charged with Attempted Murder, with the SAO additionally waiving all mandatory prison sanctions, despite shooting numerous rounds at her Chief Of Police husband - "Please don't kill me, Lisa!"). The case went to trial today before Judge Michael Gates.
Defense attorney Larry Schweiker led the charge, effectively gutting the case long before the State rested. In discussions after the verdict with two jurors (one of whom hugged Alce, nearly in tears, the other one a Maryland police officer's brother), it was learned that the Attempted Murder charge was voted not guilty "in thirty seconds". The remaining thirty-nine and a half minutes of deliberations were spent on the misdemeanor cannabis charge, which also came back not guilty (Gates was heard remarking that he was prepared to JOA the weed charge, after deferring ruling before the jury went out).
So, how could this have happened? After everything that has come out recently regarding Anthony Caravella, is the culture still so warped within the Broward State Attorney's Office that young prosecutors would rather "let the jury decide", and potentially destroy an innocent life?
We asked a former prosecutor for some thoughts.
"It's easier to go to trial and get your ass kicked then spend more time arguing with supervisors who will always say no on a case like this because they're worried about what Satz or Jeff Marcus will say. ASAs have to write detailed memos for a nolle prosse, and everyone fears being labeled a softie or a trial dodger. Being reasonable is perceived as a weakness, exactly the opposite of other places. Careers have been derailed for much less, usually through the case filing division. Oooh, you dropped something. It's all about politics and fear."
Another SAO alum remarked that Mike Satz himself is rumored to review every nolle prosse memo, which would explain a lot.
"It's easier to just try it and lose it," was the comment, echoing the previous observations. "They won't even drop an Operating Without a Valid Driver's License and you think an Attempted Murder is getting dumped?"
Even one that never should have been filed in the first place?
"You think that makes a difference?"
Just another day in Broward.
(Jurors names and phone numbers are available to any interested media personnel. They, and Alce, are ready, willing, and able to discuss the case. Alce was victimized, so please contact us if you can get this story to a broader audience, or want to know more).
*UPDATE *: Sorry, Scott - "Without my work, you would not have known that Kerly had a valid weapons permit. As soon as I found out this information I informed you and immediately dropped the CCW charge."
This is disingenuous. The fact that he had a permit was constantly brought to the Judge's attention at calendar calls, and to your attention in our usual unsubtle tone on numerous occasions. Tallahassee would not duplicate a copy of the permit, and, to your credit, you did take it upon yourself to call and verify its existence, and promptly dropped that charge. As far as why the first assault case was dropped, it was done after the deposition of the original victim, when it became apparent that no crime had been committed.
As to why Schweiker was brought in as co-counsel, it's obvious. Any defense lawyer will tell you that defending innocent clients is the worst type of case to have to go on. The pressure is tremendous, for obvious reasons that any conscientious human being can relate to. Schweiker is probably the most effective trial lawyer of his generation. He has quietly amassed a stunning string of victories over the years, rarely, if ever, losing outright. In this situation nothing would be left to chance. If this man had been convicted a travesty of justice would have occurred that would have further shamed this circuit forever after.
Please check your facts. While it is true that you had nothing to do with the upfile (and confided that you disagreed with it), the fact remains that a horrible abuse of power occurred in this matter. Thank God Alce was cleared.
(If Scott or an ASA or anyone wants to post on the front page, drop a line. It will be posted if your article is coherent.)
Seidman contempt order - "Suck my d*ck, eat my d*ck I don't give a f*ck, suck my d*ck a 100 more times". Click here for Judge Lee Seidman's AMENDED FINAL JUDGEMENT OF DIRECT CRIMINAL CONTEMPT, awarding Dwayne Mitchell 179 days in the county jail.
Coming soon - the truth behind the SAO's Kristi Krueger fiasco; Does Chuck Morton want out?
BBeat: Good Ol’ Boys Taking Aim At Judge Candidate Olga Levine
" ... This boils down to another attempt by the Good Ol’ Boys legal clique of insiders trying to save a judge who has been on the bench for three decades (Luzzo).
This aging group of mostly-downtown Fort Lauderdale barristers don’t like it that an assistant public defender dares to run for office without bowing and scraping and kissing their rings ... "
Broward is about as backward as it gets.
It's like an early fifties police state with an "US vs. Them Mentality" with all the Judges, Prosequtors and Public Officials Pushing the Envelope as far as they can.
You'd think you were still in 1951 Alabama.
who is John T. (JacK) Luzzo. No circuit judge or lawyer has that name.
Typical Broward barf.
You better believe the voters have the right to decide if they want new judges.
Broward County has shown itself to have some of the worst judges in the nation with all the self serving games that have come to public light after the media has finally found themselves reporting the news as opposed to backing and endorsing poorly performing Broward Judges who feel that nobody has the right to kick their butts out of office.
Luzzo and Robinson are just two of them that feel that way. Both are about to find themselves out of luck this time around and obviously will do anything to try to stay around to retirement. I'm just glad some good people are finally taking them on. Broward County desperately needs some new judges that don't have entitlement problems among their other problems.
Luzzo can buy his own sport tickets and just maybe the voters of Broward at long last will get some judges that know a little about the law and will put in some full days for the money they are being paid.
It didn't take the jury long to see through this charade.
Like who cares what Sam Feilds has to say about encombent judges being run against. More like a pawn broker than a power broker.
Can't wait to see the Levine counter suit. His use of the name (Jack) on the ballot is an obvious attempt to hide his public reprimand by the Supreme court from the voters.
Luzzo doesn't have a chance against Levine. Thus the threatened suit. It's gotta be better than that JACK.
Can you spell frivolous?
Don't despair. You can give dance lessons to old ladies when its all over. You need a change. So does Broward.
I can't stop laughing when you see just how ridiculous the lengths are that some of Broward's finest will go to to stay on the bench. Whatever happened to integrity?
Suck my dick. I think we would all like to say that to an authority at least once in our lives.
I saw Olga at a Jewish federation dinner last night. It seems to me she knows them all. Sorry "Jack"
This case reminds me of growing up in Chicago in the 1960s. Many family friends were police officers. Blacks were guilty of everything. You can imagine what they were called. Some cops would brag about how the detectives whacked them with phone books or stuck their heads in toilets. The mentally retarded were even more fun since they would fess up to all sort of crimes they didn't commit. Frankly, I'm surprised that a crime was ever legitimately solved.
You'd think we've progressed since then.
Progress? Lazy cops and prosecutors will always be a problem.
IN TRUE BRESLAW AKA (WHO KNOWS WHO) SPIRIT: (LV HANDBAGS) FOR ALL WOMEN SUPPORTS. (Once you have done 16 hours on the strip poll for the cause) go Jordan Jingle Himmer Schmidt, where do we sign up.
um...bill...what's the name of the piece of shi* prosecutor that chose convenience over integrity? and why are you protecting 'em?
"in addition to the five felony convictions and roughly fifteen prison years the 2nd mystery complainant had under his belt"
How come when a dirty cop or one of your friends gets accused of a crime Donnelly refuses to prosecute "based on the credibility of the witness?" How come victim credibility matters then? Why does it matter in those cases that "there is no reasonable likelihood of conviction?"
"Gates was heard remarking that he was prepared to JOA the weed charge, after deferring ruling before the jury went out"
he should've joa'ed the whole thing. pure garbage.
Good point, thank God we have honest and true defense attorneys to show us the light....I mean when they aren't pandering for work or trying to get their guy or gal elected judge or looking the other way at bad judges or colleagues or impressing everyone with their new Ferragamo's or Panerai!
I've been working on Satz's Railroad, all the live long day
What's the point of building prisons if we can't fill them with blacks? Innocent?
Who cares!
Whatever the Boss says I will do no matter how offensive to decent people.
The BOSS is not very fair with no one.Time for NEW BOSS.We don't care how long people worked for him.Guess his employees are just as bad.Time to get rid of them too.We pay their salaries we should have the say so!Time to wake up you people that live in his and other condo's.The elderly do not know what goes on in the SAO.They are out of reach with the everyday bullshit that goes on!
SAO what a JOKE you all are!
He only stay so his cronies get they dirty DROP dollars
So glad that JAAB has published this case as a classic example of what happens in this courthouse on a regular basis. I have asked on numerous occasions for all of you to provide similar examples of cases that should never have been prosecuted in the first place which actually went to trial. I have received no response. Using this case, how much money did the taxpayers of Broward County spend on this trial? Times that by the hundreds of cases like this one that go to trial every year. There is a story and there is the platform for 2012. Michael Satz has claimed in writing that he does not prosecute cases he can't prove beyond a reasonable doubt. We all know that that statement only applies to cops. A concerted effort needs to be taken to bring this to the media. I am in. Anyone else? Please contact me if you have a great example to use or just want to help. twilliamslaw@comcast.net
Kudos to Larry Schweikert who I know did an awesome job. He is a great lawyer who cares about his clients.
Can you publish the prosecutors name please?
Sad commentary on a case that should never have been filed to begin with. Even sadder that it continues to happen on a consistent basis.
What does it take to provide prosecutors something other than a training ground at the expense of the lives of those people whose lives are so adversely effected?
Hatred breeds contempt. They are experts at brain control.
Dear Bill Gelin,
on the clerk's computer, you were the listed defense attorney on this 3 year old case from the beginning right up to the trial. If this case were such a slam dunk for the defense (meaning you bill), why did you not try that case yourself? how did larry schweiker get into the act? please explain.
Bill -
I think you give an woefully incomplete factual recitation of Kerly's case. I was the prosecutor on the Agg Assault FA / CCW case (I am pretty sure I even had the case at arraignment) for the first year of its pendency. While you like to demonize Satz's policies and continuously insist that his prosecutors are puppets that are either scared or overzealous (and thus being co-conspirators in draconian prosecutions), the facts rarely support your allegations. I started reading the blog in Oct 2006. My attention to the blog came from the New Times that actually printed a story based on a blog entry concerning a DUI that I was the lead prosecutor on. Even then, the facts on the blog were so skewed and inaccurate that by the time the story was written even the defense attorney fully backed my version up.
On this case, Bill, it was through my investigation and my interviewing (after months of this case lingering and not much work on your end) that lead to the original charges being dropped . Without my work, you would not have known that Kerly had a valid weapons permit. As soon as I found out this information I informed you and immediately dropped the CCW charge. That was not a unique action but how I was trained in that office. Eventually I learned that the person to whom he brandished the gun was not the listed victim in the information which is what lead to the discussion of the charges with supervisors.
(And I would hold off on your characterization of Kerly as some sort of hero who did nothing wrong. I don’t think it is generally acceptable behavior that when you get kicked out of a strip club that you make a verbal threat that “you will be right back”, disappear around the corner, drive you car back around, get out, and start walking to the entrance with the bouncers and in plain sight start to lift your gun from your waistband, stopping only when another bouncer starts to pull his gun out.)
In terms of the upfiled charges, that was right after my transition off the case but I was involved in the decision-making process. In reading the elements of Agg Assault FA and Attempted Murder, the latter is technically easier to prove (just read them). However, that was not the reason why the charge was changed. There was consultation with a couple of bouncers and it was based on the facts we had at the time. At what point does a threat plus action on a threat with a firearm equate to attempted murder? That was more of the discussion. Is it only attempted murder if you shoot? Not according to how the law is written. Now I can’t speak for what occurred after that or with depositions (except for you listing me as a defense witness to testify that I discovered he had a valid concealed weapons permit), but I take great exception to the idea that this case was not properly handled at least up to that point.
Mr. Janowitz: Please explain how the law as you interpret it in your opinion equates to the charging and lack of prosecution of the Adderly case in point as a comparison and how such a discrepancy can be viewed as anything but the application of a double standard of justice. Thank you. I am interested in your opinion.
Looks like your saying this shaky case careened off the embankment right around 'Adderley Point'?
This is a case [99-13823-CF-10A (FK) & 02-018284-CF-10A (FK)] for the Innocence Project and any other lawyer or group that wants to right injustice.
The case started as a City of Fort Lauderdale code enforcement case pursued by Lori Milano, a woman later indicted for mortgage fraud by using her code cases. The code enforcement officer [Paul Allen] who had at one time been a law enforcement officer, was on Homestead property delivering a Final Order, not a lawful or legal duty. Contrary to law, he was carrying a concealed firearm that day, which gun may have been fired on the property when he was struggling with the owner’s son who resided on the property & was trying to run into his home, shooting off the middle digit of the left hand of the right-handed officer. A responding law enforcement officer [Joseph Mogavero] also had drawn his weapon but the weapon was not checked to see if it had been discharged when a pair of witnesses said they had heard 2 shots.
The whole incident was investigated by the Homicide Division for the City of Fort Lauderdale, because that is the group that examines police-related shootings. Detective John Paul Curcio took the lead for Michael Walley and brought in the evidence for the Probable Cause Hearing staged by Daniel Losey, who was then an Assistant State Attorney, but later went to work for the law firm of the City of Fort Lauderdale attorney, Dennis Lyles.
Assistant State Attorney Mark Allen, working in the Misdemeanor Division, filed a 5-Count felony Information that was prosecuted against an innocent man. Over the years, this defendant has been force fed psychotropic medications (thanks to Dr Michael Brannon & Court Order) & may no longer be able to help in the case.
A copy of the breakdown of the case & the law can be sent to you, if you would like to review same.