In a 1920 Supreme Court case throwing out the conviction of an accused, Justice Felix Frankfurter described how “ a substantial portion of the case against him was a fruit of the poisonous tree.” He’d put elegant words to a doctrine first formulated by Oliver Wendell Holmes 20 years earlier: when you build a case against someone on illegally obtained evidence, the whole case must be thrown out.
A venomous tree led to the arrest of Vergilio Aguilar Mendez last May in St. Johns County, where he’s facing charges of resisting arrest and aggravated manslaughter for the death of the sheriff’s deputy who arrested him. (He’s in jail in Volusia County, not in St. Johns, as initially reported here.)
Mendez is a dark-skinned 18-year-old Mayan from Guatemala with a sixth grade education. He weighs 115 pounds and stands no higher than a mailbox. His primary language is Mam, an ancient language that predates the colonial era. He speaks only a little Spanish and even less English. Racial persecution is endemic against Mayans in Central America. He thought he might have it better here.
Mendez crossed over illegally a year ago to provide for his family back home. Being a minor when he crossed, he was held in a detention center for juveniles until he was released to a family member and issued a court date. He joined Mexican migrants and ended up picking vegetables at a farm in St. Augustine. In other words, he’s among the millions of migrants who help put food on our tables, doing work the rest of us consider too good for us.
He shared a room at a Super 8 motel with three other migrants. One evening last May he went outside to have something to eat and speak with his mother by phone. He was in the well-lit parking lot of the motel, on the phone with his mother, when St. Johns County Sheriff’s deputy Mike Kunovich rode by. Mendez apparently got up and walked in the opposite direction.
That’s not a crime. To someone like Mendez, who may be more familiar with the terrors of paramilitary brutality than “protect and serve” (or with the more mundane fear of deportation) it may have been a survival instinct automatically kicking in. To the deputy, it was “suspicious behavior.” But when the deputy told him to stop, he stopped.
“Why did you get up and walk away?” the deputy asked him, building on the self-fulfilling suspicion. Mendez didn’t understand. He tried to tell the deputy he didn’t speak English. He managed to show with gestures that he was staying at the motel, that he’d been eating. The deputy asked a preposterous question, on a balmy Florida night at 9 p.m. especially: “Why aren’t you eating inside?”
The encounter was enough to make clear that Mendez wasn’t doing anything wrong. He was not committing a crime. He was not about to commit a crime. He was not anywhere near anyone with whom he could commit a crime. He was on the grounds of his motel, as even his arrest report states. He was eating while Mayan. The encounter should have ended then.
Instead, the deputy escalated. He searched Mendez. The move was unreasonable, unjustified, probably motivated by profiling, and illegal. You can’t just search anyone absent reasonable suspicions or probable cause. Inventing either is no substitute. Mendez was being strung up on that poisoned tree. Everything after that, including the noose tightening around him, was the result of that poisoning, including the terrible parts that followed.
From the deputies’ perspective, and maybe even objectively so, from a how-to-comply-with-a-cop’s-order-on-an-American-street’s perspective, Mendez behaved terribly. But he had not been to civics class at FPC. He’d probably not watched 10,000 hours of American cop shows on TV. He was uncomprehending. He thought he was being deported.
Other deputies arrived. He struggled, he resisted, he was tased repeatedly before he was handcuffed. According to his arrest report, he took out a “folding pocket knife” from his shorts and was disarmed. Not long afterward, Kunovich, 52, collapsed of an apparent heart attack and died that night. There is no diminishing or mitigating that tragedy. But to compound the loss of a 25-year veteran of the force with an untenable cause and effect doesn’t alleviate it. It aggravates it by associating it with a miscarriage of justice.
What might have been a resisting arrest charge that would have most likely been dropped, especially since there was no underlying crime that would have substantiated the resisting charge, became “felony murder,” later formalized as aggravated manslaughter, plus resisting. Mendez is still not comprehending. It’s not clear he’s all there: his lawyer filed a motion suggesting he has no idea what’s going on, that he’s incompetent to stand trial.
The poisoned tree has grown branches.
The Sheriff’s Office has retroactively claimed Mendez was trespassing on a nearby property, another preposterous fabrication that was never mentioned by Kunovich nor was in the arrest report. Further, the property was a shuttered building owned by the motel within 10 steps of the Super 8 road sign, without any No Trespassing indications anywhere. Mendez was on the sidewalk.
The governor, with his usual skills of dousing anything he touches in effluent, wasted no time politicizing the tragedy of Kunovich’s death, and of course blaming Joe Biden.
The defense is asking for a bond at the Dec. 22 hearing, when Mendez’s competency will also be determined. He at least has the humane R. Lee Smith as a judge. But Mendez won’t get a bond. Smith’s indulgences may only go so far in an environment–in a circuit and a state–where the fate of men like Mendez has been decided long ago. Poisoned trees are no obstacles to the reigning faith that cops can do no wrong, that cops who die in the line of duty must be avenged, and that migrants like Mendez can do no right but hang from trees. The poison in cases like this only fuel the lynching.
Pierre Tristam is FlaglerLive’s editor.
Robin says
A little common sense and Christian forgiveness would go a long way in this case.
Scott says
And forgiveness for who? Mendez? He did nothing wrong. He was attacked by a tyrant, whom I am glad is dead!
JimboXYZ says
That happened in Nassau County, FL a few years back. Rounding up “illegals”, when one of them escaped and ran across the highway in Yulee/Fernandina Beach, FL. Anyway the officer chased after & was hit by an SUV. They had a man hunt for the illegal. He made it back to where he lived in Jacksonville. Since it was a Federal case, the man served time for that. And then the County there, since it was their officer that got run over on SR-200/A1A up there, they State of FL wanted to lock illegal up for being accountable & responsible for the death of the officer when he had finished serving his time for the Federal charges.
https://www.news4jax.com/news/2016/11/23/nassau-county-deputy-killed-in-chase-described-as-hero/
Ray W. says
In Deputy Oliver’s case, the State filed a second-degree felony murder charge, based on an allegation of escape. The trial judge dismissed the murder charge the end of a pre-trial hearing, as the evidence did not establish that the defendant had been placed under arrest at the time of his flight. One cannot escape from a non-arrest. The defendant pled to a manslaughter of an officer charge, which carries a sentence of up to 30 years; he received a 12-year state prison sentence, which is close to the bottom of the sentencing guidelines.
Traditionally, running away from a police officer, after a command to stop, without more, is charged as a resisting without violence offense, which is a first-degree misdemeanor, a charge that cannot form the basis for any type of felony murder charge.
What follows is nothing more than a thought exercise, as I have not reviewed the reports, have not watched the videos that inevitably exist, and have not studied the medical records, including the autopsy report.
There is a rarely known set of cases (perhaps five cases in the history of Florida case law at the time I last researched the issue) that address the concept of “misdemeanor manslaughter.” I studied the issue decades ago because I represented a woman accused of manslaughter. Her boyfriend, a part-time lawn maintenance worker, had developed a crack cocaine problem. One night, he badgered her until she gave him her last $20; he promised to obtain something of value with the money. When he returned at about 5 in the morning, he presented as high on cocaine. She packed the family van to leave with her child, with him telling her repeatedly that she would always come back. She walked over to the utility trailer, grabbed a gas can, removed the spout and sloshed gas on him, saying: “Now smoke your damn crack.” She knew that gasoline would render the drug useless. As she was getting in the van, she heard a sound and saw her boyfriend on fire, which was extinguished with a garden hose. The police eventually found a crack pipe on the ground and a lighter with the boyfriend’s DNA burnt into the plastic. The boyfriend lived for three days before his damaged lungs completely filled with fluid. Every time the detective made an effort to interview him, he stated only that the detective needed to tell his girlfriend that he loved her. I presented the possible defense to the client, but since the State had offered a below-the-guidelines plea offer with a range of options for the judge to decide, she elected to plea. I don’t know exactly what was in her mind, but she knew that her boyfriend showed symptoms of being high on crack cocaine, that she had sloshed gasoline on her boyfriend and that she had then told him to smoke his crack. Would a jury find that anyone could have anticipated that he would have tried to smoke what was left of his crack, that it was reasonably foreseeable that he might catch fire, that she was culpably negligent in her actions? No one can predict what a jury would do with this fact pattern. At sentencing, I argued the theory as a mitigating factor instead of as a complete defense, but the judge ruled that she got her mitigation when the prosecutor made the low sentencing offer.
While the misdemeanor manslaughter concept is discouraged in some of the opinions, one involved the 5th DCA and a reversal of a manslaughter conviction. In that case, an individual entered a church and stole money out of an offering plate. A church member gave chase by getting in his car to follow the running thief. Having a history of heart problems, as he drove, he experienced a heart attack and died. The defendant was convicted of manslaughter at trial. On appeal, the court reversed the conviction. There can be a difference under the law between “factual causation” and “legal causation”, though most of the time both factual and legal causation are one and the same. The two concepts can diverge where it is unreasonable to foresee the onset of a heart attack during an event, despite the factual links between theft and heart attack. The appellate court ruled that the defendant was the factual cause of the pursuit, but he was not the legal cause of the death, as the heart attack was deemed independent of the theft.
A second in this short line of cases involved a store owner in a small community who was known to have a heart condition. A thief who knew of the condition entered the store and stole some merchandise. The store owner gave chase but suddenly died shortly into the run. The appellate court found that knowledge of the heart condition, as I recall the case, was enough to invoke the misdemeanor manslaughter rule, but the court also held that a trial judge should consider a policy decision on whether to sentence the thief from the perspective of manslaughter or from the perspective of theft. I remember wondering at the time of reading the case of how any judge could formulate a policy for that!
From my own experience, I know how quickly the widowmaker heart attack can strike. In my case, it appears that the only reason I survived was that I called 911 within just a few minutes of the onset of symptoms. I had moderate plaque blockage of the arteries feeding oxygenated blood to my heart muscle, yet due to extreme dehydration I had formed an instant 100% blockage of all three of the small arteries that fed my heart muscle. Someone who has a much more significant amount of plaque blockage of these three small arteries might have a far smaller chance of surviving the onset of symptoms. I am not stating as fact that Deputy Kunovich had this type of heart attack; I simply do not know enough about the case from this article.
But if it is possible that Deputy Kunovich experienced the widowmaker type of heart attack due to nearly complete plaque blockage of his heart muscle arteries that suddenly became completely blocked due to extreme dehydration, it might also be that the defendant in this case is only the factual cause of the death of Deputy Kunovich, in that there exists a string of facts that loosely link onset of stop to onset of symptoms, but it is also possible that the defendant is not the legal cause of death, regardless of how the State presents the facts, due to the independent and unforeseeable formation of a sudden arterial blockage. No one can predict what a St. Johns County jury will do with this type of fact pattern. It may be that an appellate court will have to settle the issue.
FlaglerLive readers, please understand that perhaps the main reason our founding fathers insisted on an independent judiciary was that they fully understood that there will always be citizens among us who are not capable of restraining their vengeful thoughts. Our founding fathers insisted on a judiciary that would form a buffer between that vengeful type of citizenry and the objects of their ire. We live in a liberal democratic Constitution republic for many reasons. One of those reasons is that society is more just when it blocks the vengeful among us from inflicting harm at caprice and whim.
Atwp says
The officer is dead. The young man is to blame. According to the story the young man did nothing wrong. He came to America for a better life, look what happened. Wonder did he speak with a person of color to get the real deal about living here as a person of color. Look at his situation. The cop is gone, died from a heart attack. Did the young man cause his death, no? A double negative sad story.
Duncan says
If this story is factually accurate, the behavior of the Sheriff’s Office is appalling and I hope they are fully entangled in the legal web that is no doubt coming and that it exposes what is nothing less than sensationalism followed by a coverup. It’s no wonder that the trust in law enforcement has plummeted.
The despicable behavior of our Governor is much less surprising to me. That is simply par for the course, for him.
Its amazes me that so many in this country condone and even seem to take pleasure in the unjust persecution of others – just as long as its not them.
Hammock Huck says
As tragic as this story is, the Governor wasn’t wrong in blaming Joe Biden. Most reasonably minded people put the blame where the blame belongs, Pierre, with this inept administration. It’s only the liberals like yourself that will find fault elsewhere. Had the borders been secured, this incident may have been avoided.
Nick says
You’re a special kind of stupid Huck. Congrats.
Tim says
Last I checked congress makes the laws not the president. How is this not congress fault ?
Captain says
If anything having a unhealthy unfit for duty deputy mentally and physically he had no business being a officer of the law it sounds like by his actions and his health is no one’s fault but his own,nonetheless god has a way to deal with these things
The dude says
Illegals have been coming here to pick your tomatoes and tend to your golf courses since there have been tomatoes to pick and greens to mow.
How is this President Biden’s fault?
Heck even your great MAGA king used illegals to clean rooms and maintain golf courses (and probably still does).
Marc Crane says
He’s an illegal alien. He forced his way in as opposed to others trying to migrate here using the legal way. Prosecute and deport.
Atwp says
Marc did he force his way here?
Angela Smith says
Our Governor DeSantis, took away teaching slavery in our schools. Germany threads their participation in the 2 World Wars throughout their curriculum k-12 to ensure the mistakes made in history are not duplicated; instead, Germany understands their nation should learn from our mistakes.
This article is evidence of the dominance and control an officer has for no good reason an officer can determine any person’s fate. In most cases, it is the dark-skinned male but not always. Floridians have given up so many of their rights for the sake of safety. This case shows safety I only one part of the reasons for changes to our laws; it is also to give more control to the justice system.
Those who support the extreme changes to our laws will change their mind if the police decide to overstep either on the person who supports those who support them in power like Governor DeSantis, or if someone they love is negatively affected. Otherwise, they judge everyone else who disagrees. Those are the people who allow officers in cases like these to hide behind the law when we all know that this is UNETHICAL on many levels. This is what we live with in Florida on many levels. This will not be hidden.
Jim says
After reading this news report/commentary, I went on line and watched the arrest video. I’d encourage anyone to watch it as well before forming an opinion.
In that video, Mr. Mendez did nothing to justify the sergeant stopping him. Getting up and walking away from a policeman is not a crime. Sergeant Kunovich apparently saw this as suspicious behavior and confronted Mendez. Mendez was compliant and clearly showed little understanding of English in their exchange. I’d like to hear the police explanation for why Mendez was searched. I’d like to hear the police explanation for why the situation was escalated to an arrest. What the the crime or alleged crime that lead to the physical confrontation? I think if an English speaking US citizen was confronted like Mendez was and physically man-handled under these circumstances and the video came out showing what this one does, that person would be looking at a very sizable financial settlement from the Jacksonville PD.
It is a tragedy that Sergeant Kunovich died during that encounter. The heart attack may have been triggered by the physical altercation. But does anyone not believe that if this had not occurred, it is just a likely that the Sergeant would have had the heart attack during the next physical exertion that he experienced? To charge Mendez with manslaughter for this is plain wrong. And this is the kind of thing that gives the police a bad name. This is nothing but retribution for the death of a colleague. And the accused is an illiterate foreigner who doesn’t understand the system so it sure was a safe bet to go after him.
Someone in the Jacksonville legal system should wake up and put a stop to this travesty.
This does nothing but further erode trust in the legal system and the police. And it’s put an innocent man in jail for the crime of eating and drinking outside his hotel room. Jacksonville police should be proud of how they protected and served their citizens in this case.
No excuses says
It is shocking to me how liberals think and process events. This ILLEGAL immigrant should never have been here and his illegal actions resulted in the death of a deputy. He doesn’t put any food on my table whatsoever and all the illegal immigrants should be rounded up and deported.
Atwp says
NES, you could be an illegal yourself. According to history the Indians were here first, the whites came from Europe and African Americans were shipped from Africa. Are we true citizens of this country? You say he doesn’t put food on your table, do you pick the fruits you eat? History told me what group of people almost wiped out the Indians, am sure they would like to wipe out the illegals and African Americans too. Just saying.
Rose Marie says
All this racist hate in the comments here is getting to be tiresome. We are not an anti immigrant nation, as long as you come legally.
It’s that simple.
Atwp says
Marie, the racist treatment of cops towards humans with darker skin tone is very tiresome. Europeans didn’t come here legally so they should leave as well.
Danny says
Tell that to the 8 million who have gotten in America Illegally. And GOD help America if terrorist cells start blowing up parts of America and the Mexican Cartels spread their gangs even more around the states. We the people better start arming ourselves and preparing for WAR on our soil this time.
MakeCommonSenseGreatAgain says
After watching the video, the true criminal here was the cop. He was the one who took an oath to uphold the laws. Some of you in here talking about the illegal entry of the young man but fail to mention the illegal actions of the police officer. Let us recap the facts, when he came illegally as a juvenile, he was retained and released to relatives and was awaiting his day in court. The officer knew the man did not speak English but kept firing away questions and commands like “turn around” which clearly the young man did not understand. It was a sad incident all around, but this young man did nothing to cause the heart attack. The officer was breaking the law. He died in the process of committing a crime.