The misdemeanor battery charge against Flagler Beach City Commissioner Eric Cooley was dropped this morning, minutes before a scheduled hearing before a county judge.
Assistant State Attorney Jason Lewis filed the document indicating his office will no longer prosecute Cooley at 8:40 a.m., as Cooley himself waited for his hearing on a bench outside the courtroom.
“The victim does not want to go forward with charges and will not cooperate with the State,” the formal document announcing the intention not to prosecute states. “Since there are no independent witnesses who saw the domestic battery, the State is not able to prove the case beyond a reasonable doubt.”
Cooley called the statement “a PR dig. He’s blaming the victim,” while his attorney, Angelique Kelley, who was standing in for Cooley’s usual attorney–Josh Davis, who was out of town–said statements of the sort don’t usually accompany such documents. Lewis said it’s not unusual: some assistant state attorneys issue the document without a statement. He generally issues them with a statement.
“It just depends on who the prosecutor is,” Lewis said, rejecting Cooley’s statement. “I don’t think we’re blaming the victim. The community is going to want to know why we couldn’t go forward with the case. We’re just explaining. We’ve done everything we could to get her to come down.”
Cooley was arrested on June 29 at his home, which he had shared until then with the alleged victim, who also worked with him at 7-Eleven, the store he owns on Ocean Shore Boulevard in Flagler Beach. The allegation, reported by a store employee, was that Cooley had kicked the alleged victim in the leg and grabbed her by the throat, an incident alleged to have happened in the store’s cooler. Flagler Beach police initially reported to the store, then turned over the investigation to the Flagler County Sheriff’s Office, whose deputies arrested Cooley at his home later that day. The victim initially sought to pursue charges. Cooley acknowledged that there’d been arguments and disagreements but denied all acts of violence.
The original arrest report reads as if there were other witnesses, which led to rife speculation in town that the state could make the case against Cooley without the alleged victim. There is also store surveillance video that, numerous people have speculated, supposedly shows the alleged violent encounter between Cooley and the victim. In fact, there were neither independent witnesses nor indications on the video that could corroborate actual acts of violence, Lewis said.
“That’s what everybody talks about, ‘it’s all on video,'” Cooley said, indicating that it isn’t. (See the full videos below.)
“We’ve interviewed all the witnesses,” Lewis said. “The report says there’s an independent witness, but that person once we actually interviewed them didn’t actually see it. So that’s why we can’t go forward. There’s no witnesses to the actual battery. There’s witnesses to surrounding circumstances, but we can’t prove the crime through surrounding circumstances.”
By Aug. 16, the alleged victim no longer wanted to pursue the charge. She wrote Lewis an email imploring him to drop the charge without backtracking from initially implicating him. “I feel that God and Karma are already catching up with him,” she wrote. “I do not want to inflict any more pain to him, even though I have every earthly right to.” She was not willing to continue to subject herself to media glare and people’s reactions. The prosecution had no case without her.
“We’ve been trying to see if the victim would cooperate, so we’ve asked law enforcement in the community there, where she’s at out of state,” Lewis said, “and they finally made contact with her, and she’s made it clear that she doesn’t want to cooperate or participate at all.” The 47-year-old woman soon after the incident had returned to her town of origin in Richwood, W.Va.
“We’ve reached out to her multiple times on the phone and left messages, we sent two subpoenas to her, she hasn’t responded back to us at all,” Lewis said.
The State Attorney’s Office could have enforced the subpoenas, but it would have entailed extraordinary means, including a show-cause hearing before a judge who, if the witness is not present, could then issue an arrest warrant and have the witness dragged before court: that would have re-victimized the very victim the state is ostensibly in a position to protect.
Cooley was on a bench outside County Judge Melissa Moore-Stens’s courtroom before 9 a.m. today, with Kelley, awaiting what would have been a hearing called for by his attorney to press the prosecution for a trial date, now that the speedy-trial clock has run out. The trial would have had to be set at today’s hearing for sometime in the next two weeks. But a bailiff came out of the courtroom before 9 to tell Cooley that the hearing was cancelled, and that Moore-Stens was scheduled for a meeting with other judges. Kelley got on the phone with Lewis and said she would not be leaving the courthouse without a written document indicating the status of the case. She soon returned from the State Attorney’s Office with the “nolle prosequi” document–the dropped charge. It may not be re-filed, in effect ending the case.
Cooley said he would reserve comment until he’d spoken with Davis, but allowed that while he was relieved, he nevertheless would have preferred to go to trial, where all evidence would have been laid out and, he said, he would have been more clearly exonerated. With charges merely dropped, he said–which does not equate to the kind of exoneration he was seeking–he won’t get that chance.
The case had spawned a brief sideshow involving Sheriff Rick Staly, when Davis attempted to “muzzle” Staly’s statements on the assumption that statements had been prejudicial to Cooley (the court denied the motion). The case also clearly added a layer of controversy to the Flagler Beach City Commission, where members of the public repeatedly addressed Cooley’s continued presence on the panel since his arrest.
On Aug. 9 former Commissioner Joy McGrew addressed the commission “with a sad heart,” as Cooley is occupying the seat McGrew once held. McGrew opted to retire from the commission, and publicly and enthusiastically endorsed Cooley.
“This is about you Eric, and I’m sorry,” McGrew told Cooley and the rest of the commission that day. “I know you’re innocent until proven guilty. I also know that once you step into a public position, which you have, the standards are not like they are out here. In the best and highest interest of this city, it would be my request to you to consider asking your fellow commissioners if they would allow you to be excused, be absent, until it’s proven one way or the other. I hold your position and their position with the greatest of honor, and when we run into troubles, if it’s truly in your best interest, that being the city, then you have to look at issues from a different angle.” She also suggested to the commission to consider having “leeway if this situation ever happens again” to allow the commissioner in that position–facing charges–not to forfeit the seat if it takes more than three meetings for the case to be resolved. Currently, the city charter calls for forfeiture of a member of the commission misses three successive meetings.
Reached by phone today after the charge was dropped, McGrew reflected a long time then said: “From my perspective as a past elected, political person, we all have to live with what we do, be able to put our head on the pillow at night.” McGrew said it was the alleged victim’s and the state’s choice, for whatever reasons, not to go forward. “I guess Eric has to–Eric and the commission and everyone else–have to live their truth.”
McGrew reiterated her suggestion to the commission that some policy or rule be develop enabling a commissioner in similar situations to step down for the duration of a legal case, without forfeiting the seat. Asked if she was withdrawing her endorsement of Cooley, McGrew said: “I think that’s pretty irrelevant. Nothing was proven, nothing is going to court, so why would I do that? I would hope that any and all persons that go into that position realize they have to hold themselves to a higher standard.”
The 7-Eleven Surveillance videos: 5:30 to 6 a.m., June 22:
6 to 6:30 a.m.: