Sheriff Fleming “Conflicting” Under Oath, But Cleared of Wrongdoing in Fischer Case
FlaglerLive | December 5, 2012
Flagler County Sheriff Don Fleming is being cleared of any wrongdoing in what conversations he did or did not have with John Fischer, the Flagler County School Board member, subsequent to the hit-and-run death of Françoises Pécqueur, the 76-year-old woman Fischer’s wife Jamesine struck with her car the night of Nov. 10 in Palm Coast’s C Section.
Assistant State Attorney Russ Bausch of the 18th Judicial District in Brevard County, along with Assistant State Attorney Laura Moody, concluded that Fleming was confused about what conversations he had, and when, with Fischer, and even made “inaccurate and conflicting statements, one of which was made under oath.” The assistant state attorneys concluded that from “all available objective sources and interviews with Sheriff Donald Fleming, John Fischer, and Jamesine Fischer, there is currently no evidence that Sheriff Fleming had any improper or illegal contact with John or Jamesine Fischer in relation to the traffic crash” of Nov. 10. That case is still awaiting trial early next year.
It is clear, however, the report went on to say, that the conflicting statements “contributed to the public speculation of wrongful action by a public official.”
The conclusion is part of a three-page interim report to State Attorney Norman Wolfinger, pursuant to Gov. Rick Scott’s executive order that moved the case out of the 7th Judicial Circuit, which covers Flagler County. The case was moved in March to the 18th circuit at the request of State Attorney R.J. Larizza, who was running for re-election. Larizza feared that his office could be tainted with the appearance of a conflict, since Fleming had involved himself in the case.
Fleming, too, was running for re-election. The Fischer case was one of several significant negative issues that hung over his campaign. He lost in a narrow race to Jim Manfre, a perennial foe and former sheriff himself. Curiously, the report from the 18th Judicial Circuit, dated Oct. 16, may have buoyed Fleming’s campaign. But it was not publicly disclosed until today (the News-Journal’s Frank Fernandez first reported it a little after noon). It isn’t clear why the State Attorney’s office hadn’t released it, or whether Fleming knew of it. Fleming never spoke of it. The sheriff, who has one month to go in his term, did not return a call to his cell phone—the same cell phone at the heart of the inquiry.
The wreck took place at 6 p.m. Nov. 10 when Jamesine Fischer, driving a PT Cruiser, struck Pécqueur on Columbia Lane, as Pécqueur was walking her tiny poodle, as she’s done for years, near her boyfriend’s house. Fischer claims she initially thought she hit an animal. She did not contact authorities until sunup the next day, almost 12 hours after the fatal collision. Law enforcement did not respond to the wreck scene until closer to midnight, though Flagler County paramedics were there rapidly, and thought Pécqueur had merely fallen.
An arrest report found Fischer, who was at the scene, spoke to witnesses and paramedics, then left, never suggesting that she had been involved, attempting to “mislead medical personnel and bystanders.” She was charged with leaving the scene of an accident, with a death involved. She is being represented by Steven Alexander, who also represents Fleming’s office.
John Fischer and Fleming subsequently exchanged several phone calls, even before the Fischers called authorities, according to Fleming, who said he referred them to 911. But Fleming himself gave conflicting accounts of when and where he spoke to Fischer, and how many times. When interviewed under oath by a Florida Highway Patrol investigator on Jan. 31, and on tape, Fleming testified that he first received a call from Fischer at 6:48 p.m., within the hour of the collision, as Fleming was on his way to a restaurant in Ormond Beach. Fleming remembered the call well enough to note that the reception was poor, and that he called Fischer back once he got to the restaurant. He did so, and told Fischer to call 911.
Audio: Sheriff Fleming Under Oath
“Sheriff Fleming further testified that the next day, when he arrived at work,” the interim report states, “he learned that there was a lady who was killed in the traffic crash in which Jamesine Fischer was involved. Sheriff Fleming advised that he told a staff member that he, Fleming, had had a conversation with Mr. Fischer the night before. The Sheriff specifically stated , a second time, under oath, that John Fischer had called him the night of the crash. The Sheriff indicated that he had had only one conversation with John Fischer since that time and it was about a school board issue, although the Sheriff did advise John Fischer to pray about the situation involving Mrs. Fischer.”
The next day, Fleming called the FHP investigator and told him he wanted to amend the statement he’d made under oath. Fleming changed his story’s timeline, saying he’d not spoken to Fischer the night of the accident, but that he first got a call from Fischer at 5:30 a.m. the next day—when Fischer told him he thought his wife had hit an animal.
It has never been explained by anyone involved why the school board member would bother calling the sheriff merely to note that his wife had struck an animal, if that’s what she’d believed she’d struck, especially since no animal (other than Pécqueur’s unharmed poodle) was recovered at the scene. It is not in dispute that Jamesine Fischer knew of Pécqueur and her being severely injured at the very spot where Fischer thought she had hit an animal, since Fischer had stopped her car, and spoken to witnesses and paramedics, about Pécqeur being on the side of the road, in a swale.It is virtually implausible that she would not have reported those details to her husband, or that Fischer himself would not have mentioned them to the sheriff ion his conversation. Yet that’s what, on the record, Fischer and Fleming say took place: Fischer called him to say his wife believed she hit an animal. It is unclear, from the timeline the sheriff provided of his calls to Fischer, at what point he learned that Pécqueur was indeed the victim, though by then his own staff was well aware, and had at some point informed him.
The interim report does not attempt to raise those issues: “The criminal case is pending trial,” the report states. “Because the trial in this case is still pending, this report will not discuss any further details regarding the traffic crash itself.”
But Bausch and Moody did interview Fleming on April 25. The report doesn’t state whether the interview took place in person or over the phone. “Sheriff Fleming maintained during our interview that during his first interview with FHP he had mistakenly assumed that the phone calls documented on telephone records that he had obtained, pertained to the day of the crash as opposed to the following day,” the interim report states.
It continues: “Based on the inconsistent statements of Sheriff Fleming concerning the dates and times of his conversations with John Fischer, the Office of the State Attorney, 18th Judicial Circuit, subpoenaed all known telephone records for all numbers belonging to Sheriff Donald Fleming, John Fischer, and Jamesine Fischer. We also conducted a sworn audio recorded interview with John Fischer. In summary, theses phone records do not record any telephonic communication between Sheriff Fleming and John Fischer or Sheriff Fleming and Jamesine Fischer on November 10.”
While the report focuses on timelines and inconsistencies pertaining to the timeline, it says little more about the substance of the conversations exchanged between Fischer and Fleming.
Beyond the assistant state attorneys’ scope of work, however, the inconsistencies in Fleming’s version of events reveal at least one significant issue that was not related to the incident: Fleming was not in full control of his memory on essential and basic facts involving a prominent politician in the community, and a serious—and ultimately fatal—accident. But like the report’s conclusions, that point is moot in so far as Fleming’s tenure at the sheriff’s office is concerned, since that tenure ends on Jan. 8, assuming the matters don’t somehow get roped back into whatever legal twists the case may take.