The Bad Cop Paradox
The case was dismissed, but Fornal came out clean.
Despite Dep. Fornal's exaggerated confidence in his own olfactory senses, he didn't find any marijuana in the car. Well, at least not after those first several searches. After about 90 minutes, Fornal turned off the microphone on his uniform. Another deputy then miraculously found a burnt marijuana cigarette. Fornal then arrested the driver on DUI charges, even though the driver's BAC was half the legal limit.
No discipline. The only change the department made was to remove Dep. Fornal's dash camera. Which of course would make him even less accountable.
Some cops just don't look good on camera. But that wasn't the end of Fornal's issues.
High speed pot scent is one thing. Liquoring up a purse is another. But call a brother a "dumb ass"? That crosses the line. Fornal was given the time-honored opportunity to preserve his dignity. So he resigned,
Ten months later, Fornal is back in the news.
At the accident scene that cost him his job, former Deputy Dominic Fornal allegedly poured a bottle of liquor into a woman's purse and then dumped the remainder of the bottle onto the floorboards of her van.
Minutes later, Fornal allegedly described one of his coworkers, Deputy James Kathman, as a "dumb ass" to a state trooper.
But this is where Radley named a second name, State's Attorney Ed Brodsky.
You'd think a prosecutor interested in justice would just drop any case that turns on the word of a cop who even fellow cops have deemed to be a liar.Brodsky has a double problem. The first involves dealing with Fornal, the scoundrel cop. The second involves the defendants arrested by Fornal. The problems are reminiscent of Benjamin Cardozo's question, should the criminals go free because the constable blundered?
And you'd be wrong.
Prosecutors are showing no signs of offering any deals in cases involving Fornal.
They sent out at least one Motion in Limine Friday — a legal maneuver that asks the court to bar defense attorneys from raising Fornal's past stops or from introducing newspaper accounts of his activities. While the motions for Fornal have been somewhat formulaic, the new version seeks to bar attorneys from mentioning "former officers."
So not only is the office of State's Attorney Ed Brodsky not arresting Fornal for lying in sworn statements, not only is his office not dropping the cases in which the charges hinge on Fornal's sworn statements, but his office is actually seeking to bar jurors deciding the guilt of people charged with crimes from even knowing that Fornal resigned from the sheriff's department in the face of an investigation into allegations that he has lied about prior arrests.
Of course, Fornal didn't blunder, at least not in the sense that what he did to people was an accident. His accident, if any, was thinking he wouldn't get caught lying or abusing his authority. Because lots of cops smell pot at 35 mph, or pour liquor into purses. Or maybe they do.
But as much of a lying mutt as Fornal may be, Brodsky is the janitor, cleaning up the mess he left behind. The theory behind this effort to wipe up Fornal's mess, and seek judicial approval to sanitize Fornal's record, is to prevent those defendants against whom the state needs Fornal's testimony or evidence from destroying the prosecution's case.
There is no question that Fornal's escapades in law enforcement are both Brady and render pretty much anything Fornal might say incredible. The flip side, of course, is that just because Fornal may be a liar doesn't mean the people he arrested are innocent. And if they're guilty people, what of the State's duty to assure their conviction? So they send in Brodsky to clean up the mess.
Whether this is Brodsky's idea of how to address the Fornal problem or he's been told to cleanse the record isn't clear. Nor, for the purpose of naming and shaming does it really matter. If it's wrong, and it is, Brodsky has the ability to say "no" and walk away. That he's chosen to pursue this course, of cleaning up Fornal's mess, makes him responsible.
The State's Attorney can argue that even if Fornal isn't credible in some instances doesn't mean he lied in others. While it may be true in theory, credibility is always an issue, and there is no magic, like Fornal's nose, that allows a prosecutor to make a liar's lying history disappear. Then again, this being Florida, renown for not letting logic or precedence impede convictions, it doesn't mean a judge won't back the State up.
But the mess left to Brodsky to clean up wasn't made after Fornal resigned. The mess was made when Fornal was hired. The mess was made when Fornal was first outed as cop without credibility. The error wasn't that Fornal got caught lying, but that he was left on the job. Are they surprised that a cop who would lie about smelling marijuana at 35 mph or pouring liquor into a woman's purse was also involved in other busts?
Even if there is reason to believe that he wasn't as bad in the other cases, and even if there is reason to believe that the defendants in the other cases were guilty as sin, they created the dilemma they now face by leaving a bad cop on the job. If a bad guy gets away because of it, the fault lies with the State for not recognizing that Fornal had no business ever wearing a shield. Do you blame the snake for biting?
The lesson here, and one that Brodsky and his superiors in the janitorial service of the State, is that by leaving the lying cop, the dirty cop, the bad cop, on the job, the untenable situation of criminals going free is the inevitable outcome.
And yet, they not only let a cop like Fornal remain in uniform long enough to humiliate himself and embarrass his office, not to mention get a free ride on his own criminal conduct in the course of doing the State's bidding, but to arrest more people who may well have committed crimes and should now walk free because the "constable blundered."
If the State has a problem with cleaning up after Fornal, then they shouldn't have put him back on the street. Having done so, they created the mess that Brodsky is trying to clean up. But he will never be able to remove the stain Fornal left behind.