A special prosecutor will try to answer whether a Broward detective fabricated evidence in an '85 murder.
By SYDNEY P. FREEDBERG
© St. Petersburg Times, published February 28, 2001
Prosecutors are investigating whether a top Broward County sheriff's detective made up evidence against Frank Lee Smith, a Fort Lauderdale man who spent 14 years on Florida's death row for a murder he did not commit.
Gov. Jeb Bush appointed Bruce H. Colton, state attorney for Martin, St. Lucie, Okeechobee and Indian River counties, to look into allegations that Richard Scheff knowingly lied to win a conviction against Smith and then fabricated evidence to help preserve his death sentence.
Smith, 52, died of cancer in January 2000, 101/2 months before DNA testing cleared him of the 1985 rape and murder of 8-year-old Shandra Whitehead.
Broward State Attorney Michael J. Satz, whose office prosecuted Smith, asked Bush to appoint a special prosecutor last month.
The request came after attorney Barry Scheck, who represents Smith's family, publicly pressed for an investigation.
The governor's executive order, signed with little notice on Jan. 24, authorizes Colton to represent the state "in all matters pertaining to or arising from any allegations of perjury pending against Richard Scheff."
Scheck, co-director of New York's Innocence Project, said Tuesday that he is pleased the governor named a special prosecutor. "The prosecutors should be looking at every case and certainly every death penalty case that Detective Scheff was involved in," said Scheck, who helped persuade Satz's office to do DNA testing after cancer killed Smith. "And beyond Detective Scheff, they should be looking at everyone involved in the Smith matter to see what they knew and when they knew it."
Lawrence Mirman, an assistant state attorney who is handling the investigation for Colton, said the inquiry focuses on allegedly contradictory statements by Scheff in the Smith case.
Under Florida law, any official who "willfully" makes two or more contradictory statements in a capital case can be found guilty of a second-degree felony, punishable by up to 15 years in prison and up to a $10,000 fine.
At Smith's 1986 trial, Scheff testified that he showed Chiquita Lowe, the state's star witness, two photo montages to see if she could identify the man she saw lurking outside Shandra's house on the night of the murder.
Lowe picked out Smith, who had been convicted of two earlier homicides, from one of the montages.
In 1989, however, while Smith was under a death warrant, Lowe recanted her testimony and fingered another man, Eddie Lee Mosley, who had a history of violent crimes in the neighborhood.
After the Florida Supreme Court ordered a new hearing into Lowe's changed story, Scheff took the stand again in 1991. This time, he testified that he showed Lowe three montages, including one that contained a photo of Mosley, and that Lowe had failed to pick him out.
Lowe denied the detective ever showed her a picture of Mosley, and Scheff, who kept detailed case notes, had no record of the Mosley photo montage.
The Smith case took another long side trip through the courts after a judge and a prosecutor held what the Florida Supreme Court ruled were improper, one-sided talks out of the presence of Smith's lawyers.
Then, in 1998, Scheff testified yet again. This time, he produced a photo montage with Mosley in it that he said he showed Lowe and other witnesses back in 1985.
Smith's attorneys didn't buy it. If the montage were real, they said, it would have surfaced long before 1998 -- at the trial, at the death warrant arguments, at the 1991 hearing -- not as the case was collapsing 13 years after Smith's conviction.
Eventually, the DNA testing not only cleared Smith but also tied Mosley, the man Lowe had identified since 1989, to Shandra's murder.
Scheff is now in charge of the Broward Sheriff's Office internal affairs unit, which investigates police corruption.
He declined to comment Tuesday, and a sheriff's office spokesman said he was unaware of the perjury investigation.
In an interview in December, Scheff told the St. Petersburg Times that he did not pressure witnesses, lie or manufacture evidence.
But he said Smith's vindication had shaken his faith in the death penalty. "It's like an epiphany," he said.
Gov. Bush gave Colton a year to investigate, but Mirman said he doesn't think the inquiry will take that long.
- Times researcher Kitty Bennett contributed to this report.