IAPE Evidence Blog

Orlando Sen­tinel (Florida)
BYLINE: Rene Stutz­man, Orlando Sentinel

Semi­nole County, FL

Three years ago, Semi­nole County deputies shot and seri­ously wounded a Lotto mil­lion­aire as he was inves­ti­gat­ing — with a pis­tol in his hand — why peo­ple were tromp­ing around his land at 2:30 a.m.

Robert G. Swof­ford Jr. sued. Now an Orlando fed­eral judge has issued a scathing rul­ing, crit­i­ciz­ing the Sheriff’s Office for destroy­ing sev­eral pieces of evi­dence, includ­ing the offi­cers’ guns.

“That we are here on this issue is inex­plic­a­ble and inex­cus­able,” wrote U.S. Dis­trict Judge Mary S. Scriven.

As pun­ish­ment, she has ordered the Sheriff’s Office to pay as much as $300,000 of Swofford’s legal fees.

Swofford’s attor­ney had writ­ten the Sheriff’s Office a let­ter in 2006, ask­ing it to pre­serve all evi­dence asso­ci­ated with the shoot­ing, but the sheriff’s gen­eral coun­sel, David Lane, did noth­ing, accord­ing to testimony.

Lawyer: Items lost

The judge sin­gled out Lane for the harsh­est crit­i­cism in her Sept.28 rul­ing and ordered him, as well as the sher­iff and the deputies named in the suit, to pay the legal bills Swof­ford, 58, incurred in his fight over the miss­ing evidence.

A para­le­gal in Lane’s office sent copies of the preserve-the-evidence let­ter to sev­eral agency man­agers, includ­ing Sher­iff Don Eslinger and the per­son in charge of firearms, Ann Mal­lory, but they, too, ignored it, the judge wrote.

Lane and Eslinger’s spokesman, Lt. James Clark, would not com­ment on the order, say­ing the case has not yet come to trial.

But at a hear­ing about the miss­ing items, sheriff’s attor­ney Tom Poul­ton said they were lost — not inten­tion­ally destroyed. He argued, in vain, that the Sheriff’s Office should face no sanctions.

What’s miss­ing?

Gone are:
The 9mm Sig Sauer pis­tols used by the deputies who opened fire, William Mor­ris Jr. and Don­ald Remus. The Sheriff’s Office decided to swap out all its hand­guns, so it sent them back to the man­u­fac­turer, where they were disassembled.

Remus’ lap­top com­puter. It was erased, as were those of other deputies, and employ­ees were given new ones as part of a gen­eral agency tech­nol­ogy upgrade.

All e-mail sent by both offi­cers the day of the shoot­ing and in the 12 months following.

The uni­forms the offi­cers wore that night.

Parts of the radios the offi­cers car­ried that night, includ­ing their ear­pieces and mikes.

The Florida Depart­ment of Law Enforce­ment inves­ti­gated the shoot­ing, for­ward­ing its find­ings to the State Attorney’s Office in San­ford, and pros­e­cu­tors con­cluded nei­ther Mor­ris nor Remus had bro­ken the law.

Both men also were cleared of wrong­do­ing by a Sheriff’s Office review.

They had “no other rea­son­able alter­na­tives than to resort to deadly force,” wrote sheriff’s Inves­ti­ga­tor Shan­non Miller.

‘Law­fully armed’

But the fed­eral judge has been less gen­er­ous. On Nov. 30, she rejected the cor­ner­stone of the sheriff’s defense: that the offi­cers had immu­nity because their actions were reasonable.

The Sheriff’s Office had asked her to throw out the suit. She said no. Jurors must decide, she wrote, whether offi­cers deserved immunity.

“Mr. Swof­ford was law­fully armed and legally enti­tled to pro­tect his prop­erty,” the judge wrote.

Swof­ford won a $35 mil­lion Lotto jack­pot in Novem­ber 2004, but the for­mer U.S. Postal Ser­vice employee may be bet­ter known as the man who dated two sis­ters simul­ta­ne­ously, fathered chil­dren by them both within months of each other and set up a house­hold, where they all lived together.

That was the mid-1990s. Years before he won the lot­tery, the house­hold had bro­ken up.

Still, one of the sis­ters, Ann Lackey, was mar­ried to Swof­ford when he won the jack­pot. He did not claim the prize until after he nego­ti­ated a $5 mil­lion divorce set­tle­ment, with an addi­tional $1 mil­lion going toward child support.

The other sis­ter, Mary Lackey, sued, alleg­ing that even though Swof­ford never mar­ried her, he promised her one-third of his property.

A judge rejected that claim.

Dif­fer­ing accounts

The night Swof­ford was shot, April 20, 2006, Remus and Mor­ris were try­ing to track two bur­glary sus­pects that Remus had spot­ted in an apart­ment com­plex next to Swofford’s home on 7 acres near Alta­monte Springs.

The deputies poked out some planks in the fence between the two pieces of prop­erty and went on Swofford’s land with a search dog.

Swof­ford heard a com­mo­tion, grabbed his semi­au­to­matic hand­gun and went outside.

Months ear­lier, he had com­plained to the Sheriff’s Office about crim­i­nals com­ing on his land and had asked that deputies reg­u­larly patrol his place. The Sheriff’s Office had com­plied. In fact, Remus had patrolled Swofford’s prop­erty about three hours before the shooting.

Swof­ford and the deputies have given dif­fer­ent accounts of what hap­pened in the sec­onds before the shoot­ing. The deputies said they called out sev­eral times, iden­ti­fied them­selves and told Swof­ford to drop his weapon.

Swof­ford said they said noth­ing. He said he saw two men but did not real­ize they were deputies. He said he did not point his pis­tol at them.

The offi­cers fired seven rounds, wound­ing Swof­ford in both arms, abdomen and leg. He was hos­pi­tal­ized for sev­eral months.

Intends to appeal

The Sheriff’s Office three weeks ago filed notice that it intends to appeal two of Scriven’s deci­sions: the sanc­tions she imposed because of the miss­ing evi­dence and her refusal to accept the deputies’ immu­nity claim.

Mor­ris is still a deputy. Remus resigned two years ago, say­ing he wanted to pur­sue a busi­ness opportunity.

The case is cur­rently set for trial in Feb­ru­ary, but the appeal could delay that for a long time.

CONTACT: Rene Stutz­man can be reached at 407 – 650-6394 or rstutz­man @orlandosentinel.com.

- — - — - — - — - — - — - — - — - — - — - — - — - — - — - — -
Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment”
www.IAPE.org