Yesterday was a first for me. It was the first time I ever saw the lead detective in a murder case take the stand and testify that the accused was not guilty. It was also the first time I ever saw a prosecutor cross-examine his lead investigator and try to impeach him.
Its like we are living in bizarro world over here!
But these shockers are just the beginning. What you are about to learn will blow your mind. In fact, what I saw yesterday actually has me pretty upset. It took me a day of digesting what I saw before I could write about it. More importantly, the implications of yesterday’s testimony go far beyond the defenses in this case.
Good Cause to Access Mental Health Records
The purpose of yesterday’s hearing was to address the defense motion to obtain mental health records and nothing else.
The Defense needed a special hearing because mental health records benefit from extra protection under Florida law. This is due to the fact that Florida law recognizes the need for confidentiality when it comes to mental health treatment. However, when it comes to criminal prosecutions, the accused’s right to to challenge his case, mount a defense, and otherwise benefit from a jury trial take precedence over patient confidentiality.
In 1999, the appellate court in Katlein v. State devised a multi-step process that balances a patient’s right for confidentiality with a criminal defendant’s right to Due Process.
First, the requesting party must establish why the records are expected to contain relevant evidence. Once that threshold is met, the records are then delivered to the judge who reviews them in private to confirm which parts, if any, are actually relevant to the case. This is called an “in camera” review.
Once the judge has had a chance do his review, the relevant parts of the records are then disclosed to the parties. At a later point in time, a determination must be made about which parts, if any, of the records can be used in open court.
Yesterday’s hearing only addressed the very first part of this process – whether or not the requested mental health records have any presumptive relevance to this particular case. At the end of the hearing, the Court ruled in favor of Deputy Peraza and ordered that the records will be disclosed to him for his private review.
The Court’s oral pronouncement can be found here: Order re: In Camera Review of Mental Health Records
The Shocking Truth
The first witness called to testify yesterday was Detective John Curcio. If you have practiced criminal law in Broward County for more than five seconds, you know who Det. Curcio is (or at least you should). He has been a detective for over 30 years and has investigated hundreds of murder and death cases.
Curcio’s reputation and credentials speak for themselves.
Amongst lawyers, he is known for telling it like it is. Sometimes that helps your client’s case, most often it doesn’t.
But here is the deal with Curcio that everyone knows, judges and lawyers alike: He is brutally honest.
In fact, the only griping I have ever heard about him have come from prosecutors, who probably wish he wasn’t so candid. But enough about Curcio, lets discuss his testimony…
As lead investigator in Deputy Peraza’s case, Det. Curcio testified that he thoroughly reviewed all the evidence available in this case. The evidence includes: scores of eye witness statements, physical evidence, autopsy reports, a toxicology report, crime scene photos, statements by Deputy Peraza, Sgt. Lacerra, Lt. Ostroff, as well as statements from McBean’s co-workers who personally witnessed his mental breakdown at work, among other pieces of information.
But for Deputy Peraza’s defense team and the prosecutors trying to send him to prison, few people understand the breadth and depth of this case like Det. Curcio.
With this backdrop in mind, both in terms of Curcio’s reputation and what he knows about this case, here are five main things he said during his testimony yesterday:
- He opined that the shooting in question was a justified shooting.
- He opined, based on descriptions of McBean’s behavior by eye witnesses, that this was suicide by cop.
- That prosecutors did NOT call him to testify at the Grand Jury proceedings.
- That he was told by the State Attorney’s Office to “stand down” and stop his on-going investigation.
- That prosecutors did not respond to his requests to obtain McBean’s mental health records.
Read that again.
The lead detective said this shooting was justified. He opined it was suicide by cop.
Whether you agree with his conclusion or not, you MUST be bothered like I am as to why he was kept away from that Grand Jury! Why weren’t they presented with his opinion? Were prosecutors crafting their message to make sure they got that indictment?
Why did the State Attorney’s Office tell Det. Curcio to stand down? Why would they want their lead investigator to stop investigating? In what world and under what conditions is LESS evidence a better thing?
Unless, of course, his investigation was uncovering evidence that hurts the prosecution’s case!
Why would prosecutors be unresponsive to Curcio’s requests to obtain evidence about McBean’s mental health? I have never seen or heard of a murder case where prosecutors didn’t give the lead detective the subpoenas and legal notices needed to investigate his case.
If you are a member of the public this should chill you to your core because this is a manufactured indictment.
Also – don’t you think a the investigation should have been completed in its entirety PRIOR to presenting a case to the Grand Jury? Prosecutors aren’t dumb – they fully appreciate the role McBean’s mental heath played in this case, yet they chose to ignore it during their efforts to get the indictment.
We know this because prosecutors stated in court that they do not have McBean’s mental health records and that all the evidence they do have has already been disclosed to the Defense in its discovery submission. If they don’t have the mental health records now, that means they didn’t have them two months ago when they sought the indictment.
How can a Grand Jury, or any jury for that matter, consider the merits of this case WITHOUT the mental health records?!?!
Do you people realize how bone chillingly messed up this is? If you work in the courthouse this should anger you.
Remember the Bombshell New Evidence in Deputy Peraza’s Case? Remember when I asked if prosecutors presented ALL the witnesses? Or if prosecutors presented ALL the evidence, including mental health evidence?
We now know the answer: They did not.
How valid do you think the indictment is in this case if it is based on only half a story?
In my entire career I have NEVER heard a case where prosecutors did NOT call their lead detective to testify – especially in a murder case. We now know why that didn’t happen – to make sure an indictment was handed down.
They withheld Det. Curcio’s opinion that the shooting was justified, they withheld the opinion that it was suicide by cop, and they withheld the mental health evidence.
Here’s the best part: Prosecutors withhold all this evidence and then have the audacity to ask Deputy Peraza, during his Grand Jury testimony, why he thought someone would point a rifle at him.
They raise the “why” question, but then withhold the answer! Do you think that is for the pursuit of truth or something else?
They thought they were being slick by locking in his testimony about state of mind, but in reality, all they did was emphasize the critical role that mental health evidence plays in this case.
This case has barely just begun and it is already unraveling. It is a complete train wreck for prosecutors.
Even though a Grand Jury did in fact return an indictment, that decision is meaningless when they are presented a version of events that omits the most important evidence in the case.
Would you allow your child to be operated on by a surgeon who makes decisions the same way? Imagine that… a doctor who cuts into people while ignoring the most important diagnostic information available.
At the end of the day, whether McBean held the gun this way or that way, or if he turned this direction or that direction, the bottom line is this:
He was in the midst of a schizophrenic mental breakdown when he bought a rifle, walked down the street in broad daylight with it, entered a busy apartment complex, and took affirmative actions that communicated he was about to open fire on deputies.
Story end – Detective Curcio was right and prosecutors ought to listen to him, especially when he tells them they are wrong.