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.
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.
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.