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A Matter of Black and White

F.M. (not her real initials) went shopping at the Express store in the Vero Beach Mall on July 8, 2010. She would not, unfortunately, be able to forget this day, and the matter would not be resolved until 364 days later, just 5 days before a jury was to be picked.

The day started out happily and with great promise. Three children of a close family friend spent the night with F.M.’s daughter. The group proceeded to the Vero Mall for a brief stop in route to taking the children home. The three younger girls occupied themselves with coin-operated machines. The 16-year-old boy went to Game Stop. F.M. first went shopping at Free Style, then, as fate would have it, went to the Express store. F.M. purchased items at both stores with her debit/credit card, transactions which would later be easily documented by the defense. The children agreed that they were at the mall for about an hour.

These store records showed that F.M. used her debit card at the Free Style store at 2:32 P.M. She completed her purchase at the Express store at 3:03 P.M. using her credit card.

An employee of the Express store, “Marie”, got off work at 5:33 P.M., according to employee records later subpoenaed by Attorney Garland. Marie retrieved her purse from a back room in an area of the store which was to be accessible only by employees. Marie first noticed that her credit card and identification were missing when she stopped by another store on her way home. Marie subsequently called her bank, at which time she was told that her credit card had been used at the Sunglass Hut at 4:04 P.M., and soon thereafter at a KFC. Marie contacted “Paris”, who she new well enough to have access to his cell phone number. Paris was then working at the Sunglass Hut and confirmed that the credit card had been used to purchase a pair of sunglasses.

Via a public records request, Attorney Garland obtained a copy of the original 911 call made by Marie’s husband, with Marie being clearly heard in the background. During the course of the 911 call, Marie’s husband explained where Marie kept her purse and how the credit card and identification were stolen sometime between her return from lunch and her getting off from work. Marie had no idea who committed the theft.

An Indian River County Deputy responded right away to the Sunglass Hut. The Deputy made a detailed report of the information obtained from Paris. Paris described two persons as being involved in the transaction. Both were white women. The main woman involved was described by Paris as being 6’2″. The other woman was described by Paris as being 5’2″.

The next day, on July 9, 2010, F.M. returned to the Express store. At that point, another employee remembered that F.M. had been in the store the previous day. This other Express store employee, “Ellen”, was able to obtain F.M.’s driver license information under the ruse of a store promotion. Under circumstances which were never fully explained, Ellen called for a deputy to come to the store, and requested Paris to come. Paris later testified in deposition that he made a “positive identification” of F.M. as the woman using Marie’s credit card.

F.M. would later be arrested on a warrant charging theft and felony credit card fraud, despite the fact that her complexion was dark black and her height was 5’6″. After the arrest, she retained Jeffrey H. Garland.

During the course of depositions, Marie and Ellen both asserted their belief that the theft occurred when only one employee was working in the store. They suspected that F.M. gained access to the employee only area of the store while one or the other of the employees was preoccupied. These suppositions were exposed as false, when Attorney Garland received the employee records, which were obtained via a subpoena duces tecum.

Official records from the Express store showed that Ellen started selling at 1:59 P.M. The same records showed that Marie went to lunch at 2:00 P.M., then returned at 2:34 P.M. Cash register records showed that both registers were in use at 2:44 P.M. There was no evidence that Ellen went to lunch during the period of time that F.M. was in the store – unless Ellen was taking a “paid lunch” without clocking out, which her employer might construe as a form of theft. During depositions, both Marie and Ellen admitted that they had no personal knowledge who may have gained access to the employee only areas of the store.

During his deposition, Paris asserted that he never told the Deputy that the perpetrators of the credit card fraud were white women. He did not, however, deny describing them as 6’2″ and 5’2″ in height. When confronted with the fact that F.M. was demonstrably only 5’6″ tall, he said that he could not really be sure about the height, because he worked on a raised platform, and the perpetrator could have been wearing high heels. Curiously, Paris indicated neither the elevated platform, nor the possibility of high heels as being factors which affected his initial description to the Deputy. Regardless of their exact heights, Paris estimated a 12″ difference in height between the two women. For F.M. to be considered a suspect, the other woman would have to have been just 4’6″ tall, which would be a noticably short woman. Paris never gave a description of a “little person” or dwarf.

The Deputy, meanwhile, asserted that he had “mistakenly” reported the women as white, when Paris had actually reported them as black. The Deputy claimed that he “hit the wrong key” on his computer. The Deputy could not explain why the description of two white women appeared plainly in the narrative portion of his report. The Deputy could not indicate how any keys could be accidently hit to confuse “white” with “black”. The Deputy conceded that the height descriptions were accurate.

The State filed formal charges against F.M., even after being advised of the initial description which, apparently, would have excluded F.M. as a possible suspect. The prosecutor maintained that Paris had always described the perpetrators as black, and that the Deputy had made a mistake in his report.

The defense investigation obtained records for FM.’s cell phone. These records showed a text message from a friend for whom she had cooked up a special Haitian dish. The friend lived across the street from the three children who spent the night with her daughter. F.M. planned to drop off the food after dropping off the children. The friend was later listed as a witness. The friend verified sending the text message, and making a separate voice telephone call to F.M., on the day in question. The time of the text message, and the time of the voice telephone call, were consistent with F.M.’s claim of alibi. The children could only remember what they had done and that they were at the mall for about an hour. They could not remember the exact time or day. The unimpeachable telephone records verified the time and day.

It would have taken some period of time to walk from the parking lot to Free Style. F.M. shopped in Free Style long enough to make the purchase at 2:32 P.M. The “hour at the mall” would have run shortly after F.M. made the 3:03 purchase at the Express store. The phone call occurred as F.M. was walking out of the mall at 3:11 P.M. The text message occurred at 3:22 P.M. The friend picked up the food 10-20 minutes later, when F.M. dropped the children off. F.M. was not at the mall when the credit cared was used at 4:04 P.M. The alibi was established.

The children confirmed that they left the mall and went directly to where the three children lived. The State secured no evidence showing that F.M. used the credit card at the KFC.

F.M. had no prior criminal history. She was in America lawfully, with resident alien status. She had been a long time employee of the Wal-Mart distribution center in Fort Pierce, Florida. Under these circumstances, she knew that a plea to any criminal charge was out of the question. She would definitely lose her job and may have immigration problems. F.M. was ready for trial.

Just before the anniversary of the alleged offense, the prosecutor apparently decided black cannot be white. The State dropped all charges on July 7, 2011.

MORAL

Recent research has shown that faulty identifications are the most common reason for wrongful convictions. It is the job of a criminal defense lawyer to expose the circumstances which could result in a faulty identification.

This case possessed all the elements for a faulty identification:

  1. The initial description was recorded by a trained police officer. This initial description excluded the accused as a possible suspect.
  2. A suggestive identification procedure was used. Paris was asked to come to the Express Store to see if he recognized someone. There was no attempt to use a line up or other reliable identification procedure.
  3. F.M. presented independent evidence that she was not at the mall when the credit card was used at the Sunglass Hut (i.e., an alibi). There was no evidence implicating F.M. in the alleged transaction at the KFC.
  4. Express store personnel confabulated a scenario to suggest F.M.’s guilt. The defense investigation obtained store records which exposed the scenario as false, i.e., that both Marie and Ellen were working at the time F.M. was in the store.

In the final analysis, charges against F.M. were dropped because black is not white. Case closed!