Fairfax County Cop Convicted of Forcibly Sodomizing Ex-Girlfriend

Fairfax County Cop Convicted of Forcibly Sodomizing Ex-Girlfriend
As we've been saying for years, the Fairfax County Police are out of control

Monday, April 23, 2012

Body cavity searches may jeopardize Milwaukee cases



Defendant freed after strip search on street; DA looks into other reports

By Gina Barton of the Journal Sentinel



Allegations of an illegal body cavity search by a Milwaukee police officer have led to the dismissal of cocaine dealing charges against a Milwaukee man.

The case against the 31-year-old man could be the first of many to be compromised amid a wide-ranging investigation into whether seven officers and a supervisor broke the law while conducting strip searches in District 5, according to experts.

The defendant, who previously served prison time for dealing drugs, was allowed to plead guilty to second-offense marijuana possession and sentenced to just three days in jail after his attorney filed a motion to suppress the evidence in the case.

"During the search, officer Michael Vagnini inserted his fingers into the anus of (the defendant) to retrieve a plastic baggie of cocaine," the motion says. "This was done with the defendant's pants and underwear pulled down, exposing the buttocks and thighs of the defendant to the passers-by."

The Journal Sentinel is not identifying the man because the paper does not name victims of sexual assault.

The man's assertion resembles numerous other complaints that officers sexually assaulted people and violated their civil rights while conducting body cavity searches for drugs on the street. If the allegations are proved, officers could be criminally charged, the city could be on the hook for damages in civil suits, and more drug offenders could go free, according to experts.

"It sounds like the tip of the iceberg at this point. There could be scores of cases out there," said David Rudovsky, a senior fellow at the University of Pennsylvania Law School. "Where officers are shown to repeatedly engage in improper practices, it can certainly affect pending cases and could ultimately affect convictions in the past. In addition, it would certainly mean that people who were subjected to these unconstitutional searches could sue the officers and potentially the city."

Additionally, the fact that Milwaukee County prosecutors have launched a John Doe investigation into the complaints against police also could pose a conflict of interest for prosecutors if they simultaneously pursue cases in which those officers are witnesses, he said.

The John Doe - an inquiry in which prosecutors can compel testimony and subpoena documents without public knowledge - is not the only investigation under way. The civilian Fire and Police Commission and the Police Department's internal affairs division are reviewing complaints about potentially illegal searches dating back a couple of years. The Common Council has passed a resolution urging the department and the commission to publicly report their findings within 30 days of completing those investigations.

"Without transparency and information sharing, I believe the public will likely have very little faith in the integrity of the investigations," Ald. Milele Coggs said when she introduced the resolution.

The FBI and the U.S. attorney's office are closely monitoring the local inquiries. If federal authorities are not satisfied with the outcome, they could launch a criminal investigation of their own, as they did after the 2004 beating of Frank Jude Jr. by a group of off-duty officers. If federal officials discover a pattern of civil rights abuses, a 1994 law gives them the authority to penalize the entire Police Department.

Rules of evidence

The U.S. Constitution requires judges to throw out evidence if a defendant can prove it was obtained illegally, according to Stanley A. Goldman, a professor at Loyola Law School in Los Angeles.

"How many times are you going to cavity-search all sorts of innocent people in order to come up with one person who actually had drugs?" he asked. "How many cavity searches do you do before you find one you can prosecute? If you admit that evidence, then what you've done is create an incentive for the police to do that to anyone they want."

The 31-year-old Milwaukee man was charged in October with possession with intent to deliver cocaine, a felony with a maximum prison term of 12½ years.

But in March, shortly after news of the strip-search investigation was first reported, attorney Ann T. Bowe filed the motion to suppress the evidence.

Both state law and Milwaukee Police Department policy prohibit officers from doing a cavity search under any circumstances. Such searches, which involve penetration, require a warrant and can be performed only by a doctor, physician assistant or registered nurse.

"Upon information and belief, Officer Vagnini has no medical credentials," Bowe's motion says.

Vagnini was among the officers forced to turn in their badges and guns as a result of the strip-search investigation, according to police sources. The supervisor who was set to testify if the case had gone to trial was Sgt. Jason Mucha, who also has been stripped of his police powers pending the internal investigation. Neither Vagnini nor Mucha responded to emailed requests for comment.

After Bowe filed the motion to suppress, the district attorney's office amended the charge to the lesser marijuana felony. The defendant, who had admitted possessing marijuana at the time of his arrest, pleaded guilty to that charge, which carries a maximum penalty of 3½ years in prison. He was fined $3,500, sentenced to three days in the County Correctional Facility-South and given credit for the time he had already served. He walked out of the courtroom a free man.

The man has hired civil attorney Jonathan Safran to pursue a possible lawsuit against the city, Bowe said.

Whether drugs were found during an illegal search is irrelevant in a civil case. An Illinois teenager who had marijuana hidden in his underwear recently reached a $265,000 settlement with the City of Beloit on civil claims of an illegal search and police brutality.

Milwaukee County Chief Deputy District Attorney Kent Lovern declined to discuss the Milwaukee man's case or to answer questions about its broader implications.

"At this point, it is premature to project what impact the investigation will have on cases currently in the system," Lovern said in an email. "However, these questions are legitimate ones that will be addressed at the appropriate time."

Trying to prosecute drug cases in which the targeted officers are involved "gets very tricky for the prosecutor," Rudovsky said. "Even if the officer testifies, you probably don't want your main witness taking the Fifth Amendment. The proper thing to do is either dismiss or not try those cases until there is a final resolution."

Goldman said now is the time for the prosecutor's office to deal with the issue.

"I can't see pursuing a (drug) case on one hand while investigating a star witness on the other," he said. "It puts you in a rather difficult position ethically, and lawyers are not supposed to place themselves in those positions."

The district attorney's best alternative would be to ask an outside agency, such as the Department of Justice, to conduct the John Doe, according to Goldman.

State Rep. Leon D. Young (D-Milwaukee), a former Milwaukee police officer, also believes the Justice Department should be involved. Young wrote a letter last week to state Attorney General J.B. Van Hollen, asking him to investigate the searches and other recent allegations of abuse and excessive force by officers.

Community relations

Meanwhile, state Sen. Lena Taylor (D-Milwaukee) said she plans to push the Fire and Police Commission to take a broader look at how Milwaukee police officers treat citizens.

"This is an opportunity for the Common Council and the Fire and Police Commission to strengthen the (police) relationship with the community," Taylor said.

She said she was talking about "the level of respect you have for the decency of the citizens," starting with such things as the way officers tell suspects to sit down on curbs. She said relatively minor examples of disrespect are the first step down the road toward more serious incidents, such as the strip searches.

Milwaukee Police Chief Edward Flynn said this month that the district attorney's office opened the John Doe investigation at his request.

"It was our feeling this unprecedented move would guarantee we can get to the truth more rapidly than any other method available to us," Flynn said at a news conference April 11.

Veteran sensitive crimes prosecutor Miriam Falk is leading the inquiry, according to several sources involved. Falk and other prosecutors on the sensitive crimes unit focus on sexual assault and child abuse. There has been no indication the cavity searches were done for sexual gratification, but that is not a requirement under the state's sexual assault statute. That law also prohibits actions done for sexually degrading or humiliating purposes.

Falk is perhaps best known for her prosecution of former Milwaukee Police Officer Steven J. Lelinski.

At a 2007 trial, Lelinski was convicted of second-degree sexual assault and attempted second-degree sexual assault, both felonies, and fourth-degree sexual assault and lewd and lascivious behavior, both misdemeanors. He is serving a prison term of more than 20 years.

From 1996 to 2005, nine women - many of them prostitutes or strippers - accused Lelinski of sexual misconduct. He was not charged until 2006, when Falk decided to take the case. Because many people who have alleged illegal searches have criminal records or were in possession of drugs and therefore have credibility issues similar to Lelinski's victims, Falk may choose a similar approach in the current investigation.

Bowe, the defense attorney, said judges tend to trust police officers more than defendants. Her client, she said, felt "violated" by the search but didn't think he had any recourse.

"He said, 'This goes on in the streets all the time, and we had no idea it was illegal,' " Bowe said.