tampabay.com

Claims shaky in tragic case

A man who says he saw police beat a teen in 1977 didn't pass muster with the FDLE.

By MIKE DONILA
Published January 14, 2007


CLEARWATER - The former paramedic looked and sounded convincing recently when he stepped out of anonymity to claim he knows what really happened on Clearwater Beach that July night nearly 30 years ago.

Retired and now living in Largo, Richard Walton hardly blinked as he told reporters he saw Clearwater police beat the young driver of a stolen pickup truck that had flipped and killed a police officer.

But Walton, 50, wasn't nearly as convincing when formally interviewed by Florida Department of Law Enforcement agents in 2003, according to investigative records obtained by the St. Petersburg Times.

After questioning Walton for several hours and giving him two separate lie-detector tests, FDLE investigators concluded they couldn't rely on his account. Agents speculated he tried to manipulate both polygraphs.

The FDLE had opened that investigation largely because John Niesen, of Atlanta, never accepted that his 18-year-old brother, Michael, died of injuries suffered when his truck overturned on Memorial Causeway on July 13, 1977.

Rookie Clearwater patrolman Ronald Mahony, 21, was killed in the accident. And police reported that young Niesen died the same way.

But in late November, John Niesen returned to Tampa Bay to renew his contention that the real story never has come out. He and his lawyer, former federal prosecutor Jeffrey Del Fuoco, said they had found witnesses who will say officers clubbed his brother at the accident scene. And, they said, state investigators have all too easily dismissed follow-up autopsy reports that Niesen had Atlanta medical examiners perform on his brother's exhumed body.

Niesen and Del Fuoco gave the city of Clearwater and the media documents they said were transcripts of witness interviews. And they contended the truth about that night never came out because investigators - both local and state - didn't go after it.

But a Times examination of Pinellas-Pasco State Attorney's Office and the FDLE investigative files reveals that agents formally reviewed the incident at least six times over the years. Some 15-or-so state officials assembled nearly 1,300 pages of documents, and spent months talking to more than 20 witnesses, reviewing records and poring over transcripts.

These files also show that some witnesses gave testimony that conflicts with what Niesen has supplied to them and reporters. They show that new autopsy reports don't necessarily contradict the 1977 autopsy.

Here's a snapshot of these records:

- In 2003, Walton told FDLE agents he watched five or six police officers lead Michael Niesen behind the pickup and beat him with nightsticks. But, as he answered questions during the polygraph tests about whether he was telling the truth, his breathing became "very erratic," leading Maxwell Dey, a Tampa-based special agent conducting the test, to note that he "might be doing this on purpose." Dey suspected Walton used "countermeasures" to manipulate the exam.

- Agents dismissed two new autopsy reports in 2001 because, they said, the reports didn't provide new information. The medical examiner for the first of these reports said the younger brother died from head injuries caused by the accident - something authorities have long said. The second medical examiner said the teenager died from "blunt force trauma" caused after the accident. But investigators said this examiner based the results on "misleading information" provided by Niesen.

- A passer-by who told Niesen that she saw police beat his brother, according to Niesen's interview transcripts, told authorities in 1995 she didn't make those statements.

- In 1991, a paramedic told Niesen his brother wasn't hurt at the accident scene when he arrived. But months later that paramedic told investigators he might have confused that accident with another.

After each review state investigators have said they don't have enough evidence to reopen the case.

Always, officials have "determined that there was no new information to warrant further investigation," said FDLE spokeswoman Kristen Perezluha.

And the only way they'll ever reopen it is if new and reliable evidence is brought to them.

- - -

At issue is how Michael Niesen died on Clearwater Beach and whether police participated in a cover-up to conceal the cause of his death.

All local and state reviews say he died from the crash.

His brother doesn't believe it, and earlier this year hired Del Fuoco to help him track down new witnesses.

The two have also threatened to file a $100-million federal lawsuit against the city.

When they brought forward what appeared to be new information in late November, police Chief Sid Klein asked the U.S. Attorney's Office to review the case, specifically allegations of police misconduct and, if warranted, conduct a "criminal review."

But Klein also says he believes the past reviews were thorough.

Still, Niesen, 52, says his brother survived the accident, only to die from a police beating. The patrolman, Mahony, jumped into the truck's bed as Niesen sped away from a traffic stop. He died when the truck flipped and landed on top of him.

- - -

Walton also says the state has it wrong, and he stands by his story, adding he'll be redeemed for "whatever those polygraphs said."

Walton says he was nervous and that polycythemia - a blood disease he has that causes a shortness of breath - could have altered his breathing.

"I'm telling the truth and I'm trying to do the right thing," said Walton, who receives a medical disability pension. "I thought by taking the polygraph they'd be more apt to open an investigation."

Lie detectors aren't admissible in court, but Walton is now the second key witness whose credibility is in question.

The other is Edward Garner, 57, a former Clearwater police officer who recently said Niesen wasn't hurt from the wreck and that fellow officers coached him about what to include in his report.

Garner was fired from the force for drinking on the job, has an extensive criminal history since then and served time in prison for DUI-manslaughter, the Times discovered. He has declined to talk about the case other than to say it "will all come out in court," and didn't return recent calls seeking comment for this report.

Niesen says he's not worried about Walton or Garner. He says he has more witnesses who have come forward recently and told the same story.

"It's not like everyone knew each other," he said. "It's not like they got a chance to corroborate with each other."

He also maintains that the state investigations are no good because much of the follow-up inquiries were based on the initial 1977 Clearwater police investigation, which he contends "is faulty."

Additionally, he says, he has other questions, like why agents say they've talked to some witnesses and those witnesses say they never talked to the officials. For example, records show that retired paramedic, Denise Kinglsey, was interviewed by officials in 1991, but she told Niesen and the Times that she wasn't.

"I can poke holes in any of those reports," Niesen said. "And I think people will eventually see that."

Del Fuoco concurs.

"Ultimately 12 people will make a decision," he said. "That's why we have trials."

Mike Donila can be reached at mdonila@sptimes.com or 727 445-4160.

 

The Niesen case

1978: Pinellas-Pasco State Attorney's Office is asked by the governor's office to re-open the investigation into the death of Michael Niesen, left. Based on only initial police reports taken by the Clearwater Police Department that said the teenager died in the wreck, state investigators decline.

1991: The State Attorney's Office declines to reopen the case after a paramedic who initially told John Niesen that he saw his brother uninjured after the wreck told investigators that he might have confused the accident with another.

1995: State Attorney's Office declines to reopen case after interviewing witnesses who told investigators they either did not witness police beating Michael Niesen or changed their statements.

2001: Florida Department of Law Enforcement and State Attorney's Office officials say they found no new evidence to reopen the case after reviewing new autopsy reports, and re-interviewing the doctors who conducted the autopsies.

2003: FDLE interviews Richard Walton, but suspects he manipulated the polygraph test. Agents quit investigating after that and turn their information over to the State Attorney's Office, which declines to investigate, citing no new information that would cause the case to be reopened.

November 2006: After Niesen's brother and his attorney bring forward what they say is new evidence, Clearwater police Chief Sid Klein asks federal officials to review the case.