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Against the Meat Grinder

PROLOGUE

Every man has a line, a point which, once passed, there must be a reckoning. For some, being pushed across this line is an invitation to fight or to get even. For others, there is a sense of helpless passivity. For Brian O’Hara, when pushed across this line, there was an intense desire to find justice. Brian’s struggle was difficult and long. It cost him a good job, put him heavily into debt, and nearly lost him his freedom.

In the end and against tall odds, the justness of Brian’s struggle prevailed against the meat grinder. This is his story. A DAY LIKE ANY OTHER

That Saturday began like any other. Brian was to spend “quality time” with his two sons, Brandon and Ryan (ages 3 and 6). Brian looked forward to spending time with his family on his days off. Such time was important to Brian and also to Cathy, his wife. After working an unscheduled night shift as a pediatric RN at Lawnwood Medical Center, the boys’ big day out was a chance for Cathy to get some needed rest.

Returning home at about 5:10 P.M., the boys were glad to see their mom. After Brian unbuckled Brandon from the carseat, he scampered over his father. Trying to jump into his mom’s arms, Brandon stumbled and fell, busting a lip.

No big deal. Cathy knew all about children’s cuts and bruises. She applied pressure and then cleaned up the busted lip. It was a little swollen, but Brandon hardly noticed it anymore. He looked forward to seeing grandma and grandpa, who were coming over for a family barbecue.

Brian changed clothes and was bringing some things in from the pick-up truck. When the grandparents arrived, Brian was in the pick-up truck and Cathy was standing outside. The kids were tagging along. As the family exchanged greetings, a police car pulled into the driveway.

Officer Charles Lamm quickly got out of the patrol car. He was followed a moment later by Reserve Officer Charles Baldwin. Lamm shouted to Brian, who was half in and half out of his pick-up truck, “Yo, are you Brian O’Hara?”. Later on, in trial, a neighbor, John Tardogno, described Lamm’s shout as loud enough to distract him from working on a computer inside his house.

Taken aback by Lamm’s excited and surly approach, Brian asked, in an ordinary voice, “Who wants to know?”.

Lamm then turned his attention to Cathy, who was standing in the driveway next to her two boys. Lamm said, “Honey, is he alright?”, referring to Brandon, who had been frightened by the sudden approach of the police. As Cathy tried to explain how the busted lip occurred, Lamm referred to her as “baby doll”. Later on, during retrial, Lamm said he considered it professional to refer to women as “honey” or “baby doll”. In a further demonstration of his lack of common courtesy, Lamm declared that he would refer to a female supervisor by these derisive terms.

Cathy was upset and taken aback by Lamm’s familiarities. The children started to cry. Lamm turned to Brian, who, dumbfounded by what was happening, was still partway in the pick-up truck. Meanwhile, Baldwin followed up several yards behind, prominently carrying a two-foot long steel “Mag” flashlight, event though the sunlight was still bright.

Not understanding why these police officers were belittling his wife, and not understanding their loud and aggressive posture, Brian asked, “Why are you here?”. Lamm failed to state his business or even to courteously request cooperation. Lamm repeatedly demanded, “Are you Brian O’Hara?”.

Flabbergasted, Brian’s father, Paul O’Hara, answered, “Yes, he’s my son Brian”. Brian then identified himself to Lamm, but again asked why the police were there. When Lamm again failed to explain his presence, Brian instructed the police officers to leave his property.

At first, Baldwin retreated to the roadway, but Lamm ignored the instructions and continued to demand identification. Brian explained he had left his wallet in the house when he had changed clothes. As Brian turned to go inside to get the requested identification, Lamm grabbed him by the arm. Brian was forced against the hood of his pick-up truck. While being handcuffed, Brian asked why he was being arrested. Upset by a lack of any response or explanation, Brian referred to Lamm as “bozo” and “asshold”. Not until much later did Lamm tell Brian why he was under arrest.

Lamm and Baldwin escorted Brian to the patrol car, where he was placed into the back seat. THE NIGHTMARE HAD JUST BEGUN

Fearing a “Rodney King”-type incident, Paul O’Hara demanded to talk to a police supervisor. When Sgt. Don Kryak arrived, Paul was assured that Brian would only be charged with misdemeanors. Although certain that no criminal charges were warranted, Paul attempted to cooperate with the police.

While Brian was in the patrol car, Lamm questioned him about a supposed “speeding incident” which had occurred down the street. During retrial, Circuit Judge Larry Schack would properly inform the jury that the police cannot arrest for a reckless driving charge not actually occurring in the officer’s presence, and that, under these circumstances, no citizen can be required to answer police questions. In fact, the jury during retrial was instructed that a person not in custody could refuse to listen to the police, refuse to answer questions, and turn his back and walk away without legal consequences. Despite these laws, Lamm trespassed on Brian O’Hara’s property and illegally interrogated him.

It was only after Paul O’Hara went to the jail that he found out that Brian had been charged with two felonies and a misdemeanor: battery on a law enforcement officer, resisting arrest with violence and disorderly conduct. Both Paul and Brian were shocked, because these charges were unfounded.

After bonding out of jail, Brian retained the services of Attorney Jeffrey H. Garland of Jeffrey H. Garland, P.A. Garland retained Brandon Perron of Investigative Support Specialist, Inc. to conduct an independent investigation.

Police reports were obtained, and it was discovered that Lamm was claiming that, upon his arrival at the O’Hara home, there was some sort of domestic disturbance. Lamm reported that he observed Paul and Brian arguing and that Cathy O’Hara was upset and crying, assertions clearly concocted after the fact to justify Lamm’s otherwise illegal intrusion onto the O’Hara’s property and into their lives.

Lamm claimed that Brian became hostile and belligerent, telling the arresting officers to “get the hell off my property” and hurling a barrage of obscene epithets. Lamm reported that Brian violently resisted arrest and spit in his face.

Lamm claimed that he went to the O’Hara home to investigate a reckless driving complaint received from a 14-year-old teenager named Tommy who lived on the same street. Tommy, partially corroborated by his father, reported that Brian had swerved his pick-up truck in a threatening manner while Tommy was skateboarding on Aledo Lane. Tommy lead the police to conclude that the skateboarding incident had occurred just before he made a 911 call on April 24, 1993, at 5:59 P.M.

Tommy and his father would later swear that the incident occurred between 3:00 and 4:00 P.M. They said the police were called immediately. The time of the 911 call was known and belied their claim. At trial, it was established that Brian was at home when the incident supposedly occurred at 5:59 P.M.

THE INVESTIGATION

Perron canvassed the neighborhood for leads on witnesses who may have knowledge of what happened in the O’Hara driveway. The search turned up several eyewitnesses who saw what occurred.

Attorney Garland, having the benefit of the results of this investigation, deposed the police officers. It was hoped that the State’s Attorney would not prosecute the case if it was shown that the initial arrest for disorderly conduct was contrived. Statements of three adult family members and two adult neighbors confirmed that there was not family disturbance, no disorderly conduct, and no resistance to Lamm. These witnesses contradicted Lamm’s claim that Brian was shouting and attempted to kick out the patrol car’s windows.

Faced with intense questioning on these issues, Lamm declared that he was investigating an aggravated assault charge. He stated that he supposed the felony investigation would allow him to remain on the O’Hara property and question Brian, even in the face of a request to leave the property and Brian’s expressed desire not to talk to him.

Apparently Lamm failed to discuss this story with Baldwin. At his deposition, Baldwin described a tranquil scene when he and Lamm arrived at the O’Hara home.

As a result of Perron’s investigation, it was learned that Lamm had a received a 100% disability retirement from the New York City Police Department due to hearing loss. FURTHER INVESTIGATION WAS NEEDED

After obtaining all publicly obtainable police files relative to Lamm, it was determined:

1. That there were numerous complaints against Officer Lamm, both while employed as a police officer and while previously employed by the City of Port St. Lucie as a licensing enforcement officer;

2. That Officer Lamm had submitted two separate employment applications to the City and to the Police Department in which he specifically represented that he suffered no disability or physical impediment (although at retrial, he admitted nearly complete deafness in one ear); and

3. That Officer Lamm had submitted a resume which described his health as excellent and concealed any hearing problem.

The investigation identified and secured the cooperation of three separate individuals who had prior contact with Lamm. One complaint lead to an internal affairs investigation against Lamm which concluded that Lamm’s actions against Frank Umbrecht, the proprietor of a Jensen Beach restaurant, were inappropriate. According to the internal affairs investigation report, Lamm was then employed as a licensing enforcement officer. Lamm’s wife worked as a waitress for Umbrecht. Lamm’s wife and Umbrecht were involved in a dispute over tip money. Lamm came to the restaurant and threatened that “hospital bills are going to be more than its worth”.

Another internal affairs investigation involved Nicholas Carsillo, a licensed realtor in Port St. Lucie. In a situation described as a relatively minor misunderstanding, Carsillo claimed that Lamm was rude, obnoxious and aggressive.

In another situation, Benjamin Swartzel reported that Lamm beat him with a metal flashlight and threatened to kill him.

Perron’s investigation indicated that neither Umbrecht, Carsillo nor Swartzel did anything to provoke Lamm. THE FIRST TRIAL

The criminal charges against Brian O’Hara were initially dropped by the State’s Attorney on May 17, 1993. Apparently on Lamm’s demand, the State’s Attorney picked the charges back up and filed a formal Information on May 28, 1993. That Information did not contain a charge of aggravated assault.

When it became clear that the defense was not going to lie down on this, Lamm prevailed upon the prosecutor to file an additional charge of aggravated assault. The Amended Information was filed more than two months after Brian’s initial arrest. The additional felony charge was clearly provoked by Brian’s refusal to plea no contest to the unjust charges, his refusal to agree to a pre-trial intervention agreement, and his insistence upon a jury trial.

The initial jury trial was a travesty of justice. In pre-trial rulings, the trial judge ruled that evidence of Lamm’s deafness would not be admitted, even though his ability to hear was an essential issue in the case. Evidence of Lamm’s other acts of rudeness, violence and threats of violence was also excluded. Most importantly, the trial judge refused to tell the jury that a citizen may resist unlawful police action so long as no force is used. The trial judge also refused to tell the jury what constitutes illegal police activity.

With respect to the aggravated assault charge, the trial judge refused to allow the jury to hear evidence about Tommy’s past encounters with Brian. This evidence would have shown that Brian was forced to call the police on Tommy numerous times for illegal operation of motorcycles and all-terrain vehicles. Although neither Tommy nor the vehicles were licensed, Tommy insisted on operating them in the street in front of Brian’s house and actually riding them through Brian’s yard. These actions threatened the safety of both Brian’s young sons and other neighborhood children.

In addition, the trial judge refused to allow evidence that Tommy used stolen street signs as part of his skateboarding. Both a stop sign and a crime watch sign were used as ramps. The defense was not allowed to show how Tommy completely blocked traffic on numerous occasions using three homemade ramps, one of which was ten feet long. Brian and other neighbors reported these incidents to the police.

Having heard little defense evidence, and having received no guidance as to how a citizen may respond to intolerable police actions, the first jury returned a verdict of guilty on the three charges, as well as a lesser charge of simple assault.

THE APPEAL

The Fourth District Court of Appeal determined that Brian was denied a fair trial on several grounds, and the case was sent back to the lower court for a new trial. At retrial, the trial judge was to admit the excluded defense evidence and properly instruct the jury on the law. Further, the appeal court determined that an accused is entitled to question each prospective juror for more than one minute and forty seconds when a case, such as this, warrants such questioning.

THE RETRIAL

After the case was remanded, the State’s Attorney offered to allow Brian to enter into an unconditional pre-trial intervention agreement. The effect of such a disposition would be to deny Brian a jury trial and to deny a recovery of costs expended in the just defense of this case. Brian rejected the offer, even though it would have resulted in the dismissal of all charges. Brian insisted upon his day in court and his right to be vindicated of the false accusations.

The retrial began more auspiciously than the initial trial. In a pre-trial ruling, acting circuit judge, Joe Wild, declared that the disorderly conduct arrest was made without probable cause and that the arrest was illegal. In essence, Judge Wild agreed that there is nothing illegal in using the terms “bozo” and “asshole” in a person’s own yard, in broad daylight, and in an ordinary tone of voice. The disorderly conduct charge was dismissed.

Although the jury during the initial trial was precluded from hearing most of the defense evidence relative to the driving issue, it had returned a guilty verdict on the lesser charge of simple assault. The State was precluded from retrying Brian on the aggravated assault charge due to double jeopardy.

Based upon Brian’s lack of a criminal record, and the lack of substance in the original charges, the original trial judge withheld adjudication and imposed probation. Based, again, on double jeopardy, the State’s Attorney could not seek a more severe penalty in a retrial. The State was forced to go to trial where the accused had nothing to lose and everything to gain.

Most auspiciously, the retrial was conducted before circuit judge Larry Schack. Judge Schack, using the decision of the Fourth District Court of Appeal as a road map, agreed that most of the evidence excluded at the initial trial would be allowed at retrial.

Knowing that the disorderly conduct arrest had been declared illegal, at retrial Lamm asserted that Brian had been arrested for aggravated assault on April 24, 1993, despite the fact that previously, in deposition and under oath, Lamm stated that Brian had not been arrested for aggravated assault on that date.

Amazingly, Sgt. Kryak also testified that Brian had been arrested for aggravated assault. Kryak was unable to reconcile this testimony with his deposition testimony, in which he specifically stated that Brian had not been arrested for aggravated assault on April 24, 1993.

Since neither the arrest affidavit nor the police report mention the charge of aggravated assault, there was no independent evidence to support the claim that Brian had been arrested for aggravated assault. In fact, Brian was never required to bond out of jail on an aggravated assault charge. The first appearance of an aggravated assault charge was more than two months later.

In advance of retrial, the prosecutor disclosed that Tommy was undergoing drug abuse treatment. The defense filed a pre-trial motion requesting access to Tommy’s treatment records. The prosecutor objected, stating that nothing relevant was contained in those records and characterized the defense motion as a fishing expedition.

During the course of retrial, Tommy admitted that, at the age of 14, he was drinking at least five beers a day, smoking high grade marijuana every day, and huffing gasoline and butane three or four times a week. In addition to these substances, Tommy admitted to having experienced over 100 hallucinatory LSD trips, using nitrous oxide (laughing gas), taking dozens of magic mushroom trips, extensive use of liquor, and abusive use of various uppers, downers and unknown pills. Even after hearing this, the prosecutor maintained that Tommy’s drug abuse history should not be admitted before the jury.

The defense was forced, at the last minute, to retain the services of Dr. Joseph Altieri, a board certified psychiatrist with special training in addictionology, to offer expert testimony on the effects of abusive use of these substances. Dr. Altieri advised Judge Schack that these substances, particularly gasoline and butane, caused both short and long term brain damage. He explained to Judge Schack that these substances would probably, and almost certainly, affect Tommy’s ability to perceive what happened, to remember it accurately, and would seriously affect Tommy’s judgment. Based upon Dr. Altieri’s expert testimony, Judge Schack allowed the testimony which, predictably, was devastating to the State’s case.

The defense called six additional witnesses to testify as to what occurred at the O’Hara home, then rested.

After hearing counsel’s argument, and being properly instructed in the law, the jury at retrial promptly returned verdicts of not guilty on the two remaining counts.

EPILOGUE

Based upon the acquittal on all charges, the defense secured a reimbursement of more than $8,200.00 in costs from St. Lucie County. This reimbursed only hard costs, including filing fees, witness fees and transcription costs. It did not reimburse defense for attorney’s and investigator’s fees, nor did it reimburse Brian for his lost job, embarrassment and suffering.

Although the majority of law enforcement personnel are honest, diligent and hard working, bad police officers do exist. In this case, Lamm was joined in his efforts by his supervisor. Despite the fact that Lamm and his supervisor had previously sworn that no arrest for aggravated assault occurred on April 24, 1993, they gave contradictory testimony at retrial. While a citizen could possibly ignore an individual officer’s lack of judgment or rash action, such misconduct, when apparently facilitated by a supervising officer, is egregious abuse of authority. The only purpose of such contrived testimony would be to secure the conviction of an innocent man.

When Brian O’Hara stood against the meat grinder, he stood for all of us. Without courage like Brian’s and persistence in the face of overwhelming odds, our country would be a poorer place.

See O’Hara v. State, 642 So.2d 592 (Fla. 4th DCA 1994).