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Citing Fleming-Larizza Conflicts of Interest, Gov. Scott Orders Fischer Case Out of Flagler

| March 15, 2012

Flagler County Sheriff Don Fleming, left, opened political vulnerabilities by placing himself in the Jamesine Fischer case--vulnerabilities State Attorney Larizza wants to avoid during an election year. (© FlaglerLive)

Flagler County Sheriff Don Fleming, left, opened political vulnerabilities by placing himself in the Jamesine Fischer case--vulnerabilities State Attorney Larizza wants to avoid during an election year. (© FlaglerLive)

Gov. Rick Scott issued an executive order last week assigning the Jamesine Fisher hit-and-run case out of Flagler County, for prosecution by State Attorney Norman Wolfinger of the 18th Judicial Circuit, which covers Brevard and Seminole counties.

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Scott issued the order after R.J. Larizza, the state attorney for the 7th judicial circuit that covers Flagler, St. Johns, Volusia and Putnam, voluntarily withdrew his office from prosecuting the case, even though Larizza filed the charges against Fischer.

Larizza “advised that Flagler County Sheriff Don Fleming is a witness in this case, and his office has a working relationship with the state attorney’s office,” Scott’s order reads (minus the many “whereas” common in such orders). Larizza, the order continues, “to avoid any appearance of conflict of interest or impropriety, has voluntarily disqualified himself and has requested the executive assignment of another state attorney with respect […] to the investigation and prosecution of this case and all related matters.”

The order says nothing about moving the case to ensure a fair trial: that change of venue is a separate matter, and for now, court proceedings will, in fact remain in Flagler County, according to the 7th judicial district, absent a future quest by the defense or the prosecution to change venue. (An earlier version of this story had incorrectly stated that court proceedings would also move to the 18th circuit.)

What’s notable about the order is that the prosecution itself is asking for the change in prosecutors, and that Fleming is squarely in the case–as a witness. In change of venue cases involving trials, the notable difference is jury and geography, while the teams prosecuting and defending the case and even the judge remain the same, from the original venue. (In the recent cases of the Myrtle McKinney murder, for example, which took place in Palatka, prosecutors and a judge from from Putnam County, along with the defendant’s attorneys, all moved to Flagler County for the trials, before Flagler County juries, but kept jurisdiction of the case.) Larizza, in contrast, is withdrawing his office from the prosecution entirely.

Five years ago, then-State Attorney John Tanner and Fleming got embroiled in a very public and ugly battle over the investigation and prosecution of a case involving Tanner’s daughter, Lisa, who was who was mistreated by jail guards after being booked on charges that proved bogus in 2005. The case was eventually settled with guards apologizing to Lisa Tanner. But John Tanner, who also had a working relationship with the sheriff, did not turn over the case to another jurisdiction for months, raising questions of propriety and conflicts of interest that dogged him through his re-election bid in 2008, which he lost–to Larizza. The state attorney clearly does not want to appear to fall in the same trap, as he and Fleming are both facing re-election.

Fleming’s involvement in the case has raised questions: the sheriff received several calls, possibly more than a half dozen, from John Fischer, the school board member and the husband of Jamesine Fischer, in the hours and days after Jamesine struck and killed Francoise Pecqueur while Pecqueur, 76, was walking her dog on Columbia Lane in Palm Coast on Nov. 10. (Pecqueur died 36 hours later.) Fleming several times changed the sequence of events about those phone calls, going as far as changing the testimony he gave, under oath, to a Florida Highway Patrol investigator.

Under oath, Fleming had said he’d received a call from Fischer within a half hour or so of the collision, which Fleming returned soon after. The day after his tape-recorded interview under oath, Fleming asked to file a written statement changing the story: the calls from and to Fischer, he said, took place about 12 hours after the collision, and later that day–not on the evening of the collision. The various stories also conflict with accounts Fleming gave the News-Journal, verbally then in a letter to the editor that he penned.

Jamesine Fischer. (FCSO)

As those conflicting stories emerged, it likely became apparent to Larizza that Fleming was not only creating political vulnerabilities for himself, but for the state attorney as well, if Larizza didn’t distance himself from the very high-profile case, which may unfold in the thick of the election season.

The governor’s executive order is in effect for one year, starting on March 8, 2012 (the day Scott signed it). But the order may be extended, should Wolfinger request an extension.

Meanwhile, Scott’s order reads, prosecutors and investigators from the 18th circuit “shall proceed immediately to the Seventh Judicial Circuit of Florida, and are vested with the authority to perform the duties prescribed herein.”

The bulk of the investigative work so far had been completed by the Florida Highway Patrol, which filed the initial hit-and-run charge. It’s not clear how much work the prosecutors and investigators of the 7th circuit had done, but all that work will be turned over to Wolfinger’s office.

Download Gov. Scott Order Reassigning Fischer Case to 18th Judicial Circuit

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9 Responses for “Citing Fleming-Larizza Conflicts of Interest, Gov. Scott Orders Fischer Case Out of Flagler”

  1. jc says:

    Here we go! Watch the politics on this one. Who made the first call to whom? When was it made? All there worried about is being voted out of office. How about justice for Francoise!

  2. Donna says:

    “Witness” to what? Thought the conversation between Fleming and Fischer was about an animal being hit? Really, what kind of witness is he going to be, since he can’t remember if he got the call from Fischer the night of the accident, the day after the accident, New Years Day, or yesterday? You have to hand it to RJ…..he took the 600 yard dash on this one! Run Forrest Run!

  3. Independent says:

    There is NO JUSTICE when it comes to POLITICIAN ! Never has been,,,Never will ! Poor man pays the dues. Rich man collects the dues…..Whats going to happen to police departments whe they are told from the liberal politicians to close down churches, Legalize pot, Allow the gambling parlors to open Casino’s in Flagler. What’s going to happen to the GOOD people of Flagler ?

  4. Think first, act second says:

    In deference to Flagler Live’s statement that the order said nothing to guarantee a fair trial, I would direct the writer to the fifth paragraph of page 1 of the order which says, “Whereas, in the best interest of the State of Florida and of the ends of justice . . . . ” and in the third paragraph of page 2 which says, “. . . . so that justice may be served.” The inference made that it says nothing about a fair trial is a cheap shot at a Governor that FL has a definite problem with and misses no chance to denigrate. Leave the hyperbole out of the discussions, what Larizza and Scott did was to protect the future operations between the Sheriffs office in Flagler County and the States Attorney’s office and keep politics and tensions from occurring into unworkable situations that would cause conflicts in the future, no matter who the sheriff or states attorney may be after the election.
    I would lay odds that if it had been retained in Flagler County that we would have heard the it should have been transferred discussion.

  5. Joe A. says:

    It is masterful move on the part of the State Attorney to pass the buck on this one. He is up for re-election and faces stiff competition from a well known Saint Augustine attorney. He realizes that has to stay away from this case in order to fair well with the voters of Flagler County.

    Makes me wonder had this not been an election year would he have taken the case. I smell a plea bargain anyways. Independent is totally right, there is no justice when it comes to politicians. Don’t blame me folks, I voted for Raven Sword.

  6. palmcoaster says:

    @ Joe A.. So did I and seriously miss not having Attorney Mrs Raven Sword in our school board. Sue she will be in, next time around.

  7. Martha says:

    I think this was a logical move. Now whatever the outcome, no one can cry cover up.

  8. David says:

    Send this case to the Keys, it makes me sick to my stomach when I hear anything about it.

  9. Honest Abe says:

    By receiving a phone call at 5:30 in the morning from the husband of the suspect who said “my wife hit an animal” makes Sheriff Fleming a witness in this case, like it or not. I’m sure Fleming would have preferred to have never received that call but what he did is exactly what he should have done and referred the caller to report the accident. This court proceeding as Think First said is in the interest of justice and to remove doubt from the doubters and politicians. The plea deal (if there is one) really depends a lot on the Francoise family and how far they choose to take this case. Ask yourself, where would this case be had Mr. Fischer not called Fleming to report his wife “hitting an animal”. Maybe someone’s conscious got the best of them and in reality by calling, they turned themselves in, maybe the windshield would have been quickly replaced and we would still be wondering what happened, why no arrest, why no witnesses or maybe it was an accident. I’m sure we all will have our opinions but let’s take the politics garbage talk out of it already and let justice take its’ course.

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