> Published Sunday, February 6, 2000, in the Miami Herald
>
> Case against Death Row guards seen as long shot
>
> PHIL LONG AND MEG LAUGHLIN
> plong at herald.com
>
> GAINESVILLE -- Even though it took a grand jury almost
> seven months to indict four prison guards in the beating
> death of inmate Frank Valdes, that may have been the easy
> part, compared to the prosecutors' job ahead: obtaining
> convictions.
>
> Legal experts say Alachua State Attorney Rod Smith will
> have to overcome sympathy for the guards, disdain for the
> victim, and jurors' likely insistence on knowing which of
> the four defendants struck the fatal blow. That, coupled
> with several laws that seemingly stack the deck in favor
> of defendants in cases like this, will give Smith a tough
> challenge.
>
> ``When a police officer is accused of killing someone, a
> jury's sympathy will generally be with the police
> officer. Similarly, it will be with the prison guards,''
> says Bruce Winick, law professor at the University of
> Miami.
>
> The case, Winick says, will turn on whether Smith can
> convince jurors that the guards went over the line during
> a violent confrontation that erupted when a five-member
> team tried to extract Valdes from his cell because he
> refused to leave.
>
> By charging the guards with second-degree murder, rather
> than first-degree, Smith won't have to prove that they
> intended to kill Valdes.
>
> But it will be tremendously helpful if Smith can work out
> a deal and get some of the guards who witnessed the
> incident to talk, says David Rothman, a Miami lawyer who
> is president-elect of the Florida Association of Criminal
> Defense Attorneys. Witnesses are important because
> ``without them the state can't prove who did what,''
> Rothman said.
>
> He says he believes self-defense is likely to be a
> crucial part of the guards' case.
>
> ``The jury is going to hate the victim, who was on Death
> Row, anyway,'' he said.
>
> Federal prosecutor Doug Molloy and state prosecutor Bob
> Howell agree. In January 1999, they prosecuted a similar
> case in Charlotte County: Seven guards were indicted on
> charges they brutally beat inmate John Edwards, who was
> serving a life sentence for murder.
>
> Edwards died after he slit his wrists. Guards testified
> that as Edwards lay bleeding to death without medical
> attention, they watched their supervisor pluck hairs out
> of the inmate's chest and legs, taunting: ``Oh, I bet
> that hurts.''
>
> In the Edwards case, prosecutors had graphic details of
> the beatings as described by guards, as well as bloody
> photographs and medical examiner's reports of physical
> evidence, matching the guards' descriptions. But still,
> all seven guards were acquitted.
>
> ``Not because of a lack of evidence,'' says Molloy, ``but
> because by the time the trial was over and the jury had
> heard about Edwards' crimes, they didn't see him as the
> victim.''
>
> In the Valdes case, the defense will likely try to get
> the jury to focus on Valdes as a highly dangerous
> murderer, stressing to jurors that guards feared Valdes
> because he was on Death Row for killing a corrections
> officer in Palm Beach County.
>
> `VALDES ISSUED THREAT'
>
> Guards say that the day before Valdes died, he threatened
> to kill another guard. Inmates say Valdes was upset about
> beatings of inmates in surrounding cells, who were
> injured and denied medical attention. They say Valdes was
> ranting to get help for the injured inmates.
>
> Jurors are likely to be told they can consider that
> Valdes was resisting an order to come out of his cell
> when the melee broke out -- an important factor in a
> defense, the experts say. But the prosecution could
> counter that argument by saying that, given other
> beatings on X Wing -- the area in which Valdes was being
> held -- perhaps he was afraid to come out of his cell.
>
> Florida law recognizes a ``justifiable use of deadly
> force'' when a person believes such force is necessary to
> prevent ``imminent death or great bodily harm on
> himself,'' or if that person fears that another's life is
> in danger.
>
> If the evidence shows that Valdes was hitting and kicking
> at the guards, as they wrote in their reports the day
> Valdes died, defense attorneys probably will argue that
> Valdes died while the officers were using force against
> him to protect each other.
>
> EXCUSABLE HOMICIDE
>
> In Florida, homicide can be excusable when committed by
> ``accident or misfortune'' in doing a lawful act by
> lawful means, and without any unlawful intent. Included
> in that section of law is death during ``sudden combat,''
> a fight in which the defendant is set upon by another who
> objects to the defendant's lawful activities.
>
> But Florida law also recognizes that a person can defend
> himself against an officer using excessive force to make
> an arrest.
>
> In the January case, after the seven guards in Charlotte
> County were acquitted in Edwards' death, jurors stood on
> the courthouse steps and cheered as the guards left to
> return to their families. Some of the jurors hugged the
> guards.
>
> One juror was overheard to say: ``We were for you all
> along.''
>
> Said prosecutor Howell: ``If the Valdes jury is like the
> Edwards jury, then no matter how good the case against
> the guards is, it won't matter.''