Here we go again. Right on the heels of the Nowatney debacle, State Attorney Kirk Zuelch is using taxpayer money, and lots of it, to take a citizen to trial with no case.
Last year, Zuelch— apparently frustrated by his office's continued impotence in prosecuting what appears to most to be an organized mob of t-shirt shop rip-off specialists on Duval Street— arrested, instead, one of the classiest merchants on the island.
Manual Marcial has owned and operated Emeralds International here for 20 years. His reputation as one of the most creative designers of emerald jewelry in the country is well-earned. So is his reputation for honesty.
He should know his business. He started out exploring emerald mines in the Colombian mountains 40 years ago and has specialized in emeralds ever since.
But in May of last year, Marcial was arrested by investigators from the State Attorney's Office, accused of misrepresenting the value of an emerald and diamond ring he sold back in 1993. From the outset, the charges were questionable at best. The customer wanted a full refund, even though the ring had been damaged and part of the emerald was missing. When Marcial refused to offer full credit for the unsalvageable merchandise, the customer went to the State Attorney.
Marcial was arrested and charged with grand theft and misrepresentation. The trial is set to start Aug. 14.
But Zuelch doesn't have a case! Whatever he thought he had started falling apart almost immediately after Marcial's arrest, which was based on an appraisal by Miami appraiser Joseph Tenhagen. But Tenhagen now admits that his appraisal was seriously flawed and says that the State Attorney's use of it to file criminal charges against Marcial was unauthorized.
In fact, Tenhagen is now listed as a witness for Marcial!
"Marcial is no criminal," Tenhagen said in an interview published last year in the trade magazine Modern Jeweler. "I never intended that my appraisal be used to bring criminal charges against him."
So, the heart of Zuelch's case is, apparently, a key witness who plans to testify for the other side. We're not making this up.
How about the "flaws" in Tenhagen's appraisal?
Well, for one thing, Tenhagen appraised the value of a seriously damaged ring. It shouldn't be surprising, therefore, that the estimate of value of the piece in that condition would be considerably less than the value new. But Tenhagen's appraisal didn't mention the damage!
And if Investigator Myers noticed this discrepancy, he ignored it, using the flawed appraisal to file charges and arrest Marcial. Duh!
In any event, according to Bill Hoefer, an appraisal expert retained by Marcial, Tenhagen's appraisal is also invalid for the purpose it was put— trying to make a criminal case. In a sworn deposition this past May, Tenhagen agreed.
Florida rules require an appraisal for investigation of a theft charge to estimate the value of the item at the time of purchase and in the market where it is sold.
But Tenhagen appraised a damaged ring based on emerald prices in 1998 in Miami, a metropolitan market. Emerald prices had dropped since the ring's purchase in 1993. And prices are reportedly different in a tourist market like Key West.
In his initial meeting with Marcial and his attorney last year, Assistant State Attorney Tom Slaton reportedly took a hardline stand— although he did offer to allow Marcial to plead to a lesser criminal charge to avoid a trial.
"But I didn't do anything wrong," Marcial protested.
"Take it or leave it," Slaton said.
"I couldn't take the deal," Marcial said. "I couldn't plead guilty to something I didn't do. My family and I have built our business based on honesty and integrity. Pleading to a lesser charge would have been the easy way out— but I just couldn't do that!"
He said that Slaton seemed "upset" when the plea bargain offer was refused.
We can understand that. The State Attorney's Office is accustomed to getting easy convictions by simply offering to shave charges in return for a guilty plea. We have no doubt that hundreds of innocent citizens have, if reluctantly, accepted these bogus plea-bargain offers because they simply couldn't afford the expense of fighting. Or they were terrified that they would still be found guilty, even if they were in the right. Or both.
But what we've seen over the years is that, when a defendant does have the courage and the financial fortitude to stand up and fight the Zuelch machine, it often collapses— just like the cowardly bully in the schoolyard.
We've seen it happen again and again. A defendant refuses to be bullied and says, "I'm innocent and I'm ready to take that plea to court!" Usually, Zuelch's minions immediately begin to backpedal, typically offering to plea bargain the charges almost completely away— as long as they can get some semblance of a guilty plea to enhance the office's conviction rate.
If that doesn't work and they are forced to go to trial, that can be a debacle because, often, they just don't have a case!
Examples? You know about the ordeal of Nick and Carrie Nowatney, the young couple falsely accused of child abuse last September. Their two little children were taken away by the State Dept. of Children & Families and the State Attorney's Office and shuttled between three different foster homes up and down the Keys for 200 days. Then Zuelch put the parents on trial, virtually bankrupting them. But they refused to give up.
"The only reason Zuelch took this case to trial is because we wouldn't plead guilty to something we didn't do," said Nick Nowatney. "He never had a credible case."
Judge Mark Jones apparently concurred. He threw the case out of court even before hearing all the testimony!
Another example? How about the now-famous case of Duck Tour Safaris, the little company that used World War II amphibious vessels to conduct harbor tours here? Because the Ducks could also operate on land, the same vehicles were used to transport passengers back to their hotels or to other pick-up points around the island.
Zuelch set out to try to make a case that the Ducks were illegally conducting sightseeing tours on land, in violation of the City's exclusive franchise with the Conch Tour Trains and Old Town Trolleys. That's a criminal offense in Key West, folks.
Undercover investigators went on tours aboard the Ducks and shot hours of videotape— but they were unable to produce any evidence that any Duck representative was pointing out sights on land. Even the routes were not conducive to sightseeing— like scenic White Street.
But no matter. Ducks owner John Murphy and his captains were charged. And that effectively put the Ducks out of business— which was probably the plan all along. Then, to avoid having to defend his bogus charges before a jury, Zuelch offered to reduce the charges in return for a guilty plea. Murphy, an outspoken Irishman, told Zuelch where he could stick his plea-bargain offer. And he demanded a trial before a jury of his peers.
In the courtroom, Assistant State Attorney Tom Slaton— the same guy who's trying to prosecute Manuel Marcial— seemed uncomfortable being there. But he presented Zuelch's "case" against Murphy the best he could. Can you guess what happened?
The jury was out only 15 minutes before returning a Not Guilty verdict!
Today, in the Marcial case, Slaton isn't anywhere near as hardline as he was in his initial meeting with Marcial. He's even offered pre-trial intervention— literally, a probation plea— if Marcial will plead guilty to anything. Marcial won't have any part of that.
"This past year has been a nightmare for me and my family," he said. "We know we've been wronged and the time is near when that wrong will be righted. We are confident that a jury will vindicate us."