TAMPA — Hillsborough County prosecutors have dropped charges in a slew of drunken driving cases that could have depended heavily on the testimony of former Tampa police Sgt. Ray Fernandez, who was fired last month after an investigation into his involvement in what’s been called the set-up arrest of a Tampa attorney.
Fernandez, a supervisor with the department’s DUI unit, was terminated because he tried to conceal his part in the scandal, police said. Prosecutors said that ruined Fernandez’ credibility as a witness in other DUI cases.
“The law clearly says that if we can’t rely on the truthfulness of a witness, we can’t proceed,” said Mark Cox, spokesman for the Hillsborough County State Attorney’s Office. He said the State Attorney’s Office has so far declined to press charges on about a dozen cases involving Fernandez.
According to an investigation of the incident, Fernandez was untruthful and deleted a flurry of text messages related to the arrest, Cox said, “and that put us in a position where we couldn’t put him on the stand. Defense attorneys would attack his credibility and bring all this up, and the likelihood of us having success would not be good.”
Cox said supervisors in his office are still reviewing another 40 active cases to determine the extent of Fernandez’s involvement. If the sergeant was directly involved, such as initiating a traffic stop that ended with a DUI charge, the case likely would be dropped, he said. But if Fernandez’s role was tangential to an arrest, such as if he just signed a report as a supervisor, those charges will be pursued, Cox said.
The cases that were dropped by prosecutors all involved DUI suspects who were stopped by Fernandez, who then conducted the DUI investigation and filed the charges, Cox said.
Some of the defendants were pulled over for egregious driving, he said. One was a woman who was going the wrong way on a one-way street in South Tampa at 3 a.m. on Feb. 9; another was a man driving 80 mph at 1:30 a.m. on March 9 in a Selmon Crosstown Expressway construction zone with a 40 mph posted speed limit. Both tested well above the .08 blood-alcohol level, which in Florida is considered the threshold of impairment for driving.
Tampa police Chief Jane Castor fired Fernandez on Sept. 27, saying he had lied to department officials about his involvement in the drunken driving arrest of Tampa attorney Phillip Campbell on Jan. 23.
Officer Tim McGinnis, who was called in by Fernandez to complete the arrest, also came under scrutiny.
The investigation into Fernandez, a 19-year veteran of the department, began after the arrest of Campbell, who was part of a defense team representing morning radio host “MJ” Todd Schnitt. Schnitt had been sued for defamation by competing shock jock Bubba the Love Sponge Clem.
The case against Campbell was dropped by prosecutors, who determined the arrest occurred after Fernandez received a tip from close friend and attorney Adam Filthaut, who worked for the law firm of Adams and Diaco, which represented Clem.
Campbell was arrested after drinking at Malio’s steak house in downtown Tampa with a paralegal who worked for Adams and Diaco. Investigators said the paralegal had been in contact that night with Filthaut, who had texted Fernandez about Campbell drinking at the bar. Campbell was charged with DUI after he was stopped in the paralegal’s car, which she had asked him to move for her.
Fernandez’s termination will have far-reaching effects, including tainting at least a dozen drunken driving cases in which Fernandez had direct involvement, legal experts and involved attorneys say. It could end up being many more.
“This is just part of the continuing fallout from the set-up arrest of Mr. Campbell,” said John Fitzgibbons, a Tampa lawyer who represented Campbell on the DUI charge. “There are consequences when people engage in this type of conduct.”
In August, Tampa police created a six-member team that continues to review Fernandez’s previous DUI arrests for any hints of impropriety.
“The DUI review team is making good progress,” said police spokeswoman Laura McElroy. “We expect to have its report before the end of the year.”
She said the group is reviewing about active 60 cases beyond what prosecutors are looking at, all coming within the past year, including all of McGinnis’ cases and a random sampling of cases generated by the DUI squad.
How many cases Fernandez made during the 10 years he was with the DUI unit was unknown, she said.
“It would be impossible to estimate how many cases he has worked,” she said.
Castor said she hoped the defendants whose cases were dropped learned a lesson, even though the charges are not being pursued.
“So often a DUI arrest serves as a wake-up call to an impaired driver,” Castor said in a statement released Wednesday. “Any offender who is handcuffed, transported in the backseat of a police car, fingerprinted, locked in a jail cell and have their mug shot posted on the Web will likely feel the consequences of their actions. This may be enough to ensure they never get behind the wheel impaired again.”
Tampa attorney Tim Taylor, who represents a DUI defendant whose case was tossed, said the testimony of arresting officers is critical evidence in such cases.
“When the state attorney’s office makes a criminal case, the law enforcement officer’s testimony is the evidence,” he said. “Whenever the credibility of one of the witnesses breaks down, that evidence is tainted and the state attorney’s office can’t put that person on the stand.”
Prosecutors had no choice but to toss out the pending DUI cases, said Charles Rose, a law professor at Stetson University who has been following the case.
“They were looking at the officer as a witness and they had to determine if he was sufficiently credible,” he said. “They looked at the reason he was fired and his alleged misconduct and decided the officer would not withstand a credibility impeachment. And by the time the impeachment was done, they had determined the ability to achieve a conviction would be miniscule.”
Rose said people already convicted of cases built by Fernandez over the years likely would have a hard time overturning those convictions.
“That would be difficult,” he said. Defendants “would have to show some misconduct on the part of the officer; that the officer was systemically” fabricating evidence, and there’s been no evidence of that, he said.