tampabay.com

No review for 1977 death case

By MIKE DONILA
Published March 8, 2007


CLEARWATER - The U.S. Attorney's Office has declined to investigate a July 1977 fatal wreck on Clearwater Beach that resulted in the deaths of a rookie police officer and a young motorist from Georgia.

An attorney for the motorist's family last fall brought forward what he contends is new evidence of police wrongdoing, but federal prosecutors concluded that "the statue of limitations bars any federal prosecution."

The decision upset John Niesen, 52, who has long contended that his brother survived the crash but died at the hands of police officers intent on revenge.

"I'm really perturbed," Niesen said Wednesday. "I don't know what else anyone can do to show that there was a conspiracy."

At issue was how Michael Niesen, 18, died and whether police covered up the cause of his death.

On July 13, 1977, patrol Officer Ronald Mahony, 21, stopped Niesen's pickup on Clearwater Beach.

Mahony was going to cite Niesen, who had come to Clearwater to meet girls, for reckless driving, but learned that the truck had been reported stolen.

As the officer approached the truck, Niesen accelerated and Mahony jumped into the truck's bed, according to initial reports. Niesen fishtailed several times before flipping the truck along Memorial Causeway and killing Mahony.

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The investigation said Niesen died from head injuries he suffered when he was thrown from the truck.

His older brother, though, believes otherwise.

John Niesen hired former federal prosecutor Jeffrey Del Fuoco to help him track down new witnesses, including a former Clearwater officer who said he saw Niesen "largely uninjured" after the wreck, but later saw photographs of Niesen with "significant wounds."

They also threatened to file a $100-million federal lawsuit against the city.

In response, Clearwater police Chief Sid Klein last November asked the U.S. Attorney's Office in Tampa to review the case and, if warranted, conduct a "criminal review."

In a March 2 letter to Niesen, U.S. Attorney Paul Perez said he "reviewed the matter submitted to our office" but "we declined to pursue the matter."

U.S. Attorney's Office spokesman Steve Cole declined to elaborate on the review.

"We're not going to make any comment other than to say the letter sent to the family speaks for itself," he said.

Clearwater police spokesman Wayne Shelor said essentially the same thing, but added that the "Clearwater Police Department will continue to be receptive to any evidence of wrongdoing on the part of anyone in the death of officer Ronald Mahony."

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Niesen said he'll continue to pursue any leads that will show how his brother died. He said he still expects to file a lawsuit against the city.

Del Fuoco said he also believes "that there was a concerted effort among law enforcement agencies to cover this up," and didn't understand why the U.S. Attorney's Office declined to pursue the case.

Del Fuoco speculated that federal prosecutors viewed the case as involving a potential civil rights violation against Niesen rather than as a possible murder, since officials cited the statute of limitations as their reason for not going forward.

First-degree murder is the only exception to the statute, said Pat Doherty, a local defense attorney who has extensive experience in state and federal court and has followed the case through the media.

"I bet the (U.S. Attorney's Office) looked at it and decided that this cannot rise to the level of first-degree murder because it just isn't," Doherty said. "So it has to be something less than that and anything less is barred by the statute."

Doherty said the killing would have to be premeditated in order to get a first-degree charge. He said if officers did kill the teenager, then they'd probably face a manslaughter or a second-degree murder change since the crime was committed in the heat of the moment.

Doherty said it's not unusual, however, to hear about investigators reopening civil rights cases from decades ago. But he said those cases are built around a conspiracy claim that can supersede the statute.

"It's a legal theory that says the statute begins to run on a conspiracy when the conspiracy ends, so since the conspiracy never ended, the statute never actually began," he said.

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For nearly three decades, Niesen has tried to convince investigators that his younger brother didn't die from the wreck, but was beaten by police enraged at the death of a fellow officer.

The case has been reviewed a number of times by Clearwater police, the State Attorney's Office and the Florida Department of Law Enforcement.

Each time, investigators said they found no new evidence to reopen the case. At one point, officials questioned whether former paramedic Richard Walton, who said he witnessed officers pummel Niesen, was even telling the truth.

A St. Petersburg Times examination of Pinellas-Pasco State Attorney's Office and FDLE investigative files showed that agents formally reviewed the incident at least six times over the years. Fifteen 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 showed that some witnesses gave testimony that conflicted with what Niesen has supplied to them and reporters. They also showed that new autopsy reports don't necessarily contradict the 1977 autopsy.

In late November, Niesen renewed his contention that the real story has never gotten out. He said he found former police Officer Edward Garner.

Garner, 57, said Michael Niesen wasn't hurt from the wreck and that fellow officers coached Garner about what to include in his report.

Garner, however, was fired for drinking on the job, has an extensive criminal history since then and served time in prison for DUI-manslaughter, the Times discovered.

Still, Niesen says he isn't concerned because he has more witnesses who tell the same story.

"What's been happening since (1977) is the real tragedy here, because no one has done anything about it," he said. "That's the travesty."

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