In an episode of News Radio, Joe Rogan tells Stephen Root's Jimmy James character that there is one word that makes judges have to side with you. He explains that all judges belong to a secret order, and if they hear this word, they are obligated to find in your favor, and then leave the courtroom to "paddle each other silly."
I'll bet Polk County circuit court Judge Dennis Maloney's ass, which was gracing the bench on March 11 in the motion to suppress evidence hearing in the R. Kelly trial, is still sore.
But it isn't just one word; it's two: "Burnett" and "Fletcher."
"On the strength of Burnett and Fletcher," Maloney said with little hesitation, "the motion carries." A bang of the gavel, and R. Kelly (real name: Robert Sylvester Kelly) was a step closer to being a free man.
That was the scene at the Polk County Courthouse just minutes after a stirring speech from Kelly's defense attorney, Ron Toward.
Kelly's problems in Bartow stem from an April, 2002, warrant from Chicago, alleging that Kelly appeared in a pornographic home movie with a minor. He was staying in Polk County at the time the warrant was handed down, and arrested on June 6, 2002.
Toward, part of the Florida team in this two-pronged Bartow-Chicago affair, focused his arguments on the affidavit of Polk County deputy R. Mateo. Mateo had been involved in the search of one of Kelly's two rented Davenport homes that led to the discovery of pornographic pictures on Kelly's digital camera. (In case you're wondering, Kelly rented one home for his wife and child, and the other as the crib for his entourage, which is where the porn was found. Why Kelly rents houses in Davenport is a question that went unanswered at the trial.)
"Nowhere in the four corners of this document does (Mateo) reference the indictment in Chicago," Toward said. He said deputies failed to establish a sufficient time "nexus" between events in Chicago and Kelly's arrest here. Without a nexus, he argued, there wasn't sufficient grounds to search the camera.
Then Toward dropped the bomb: two precedents, both arising from the Polk County Courthouse and ultimately decided in the Second District Court of Appeals.
The first was the 2000 case of Jeffrey Fletcher in which a judge ruled that, though Fletcher's 12-year-old daughter had found a hidden camera in the family's bathroom aimed at the toilet and another in the second daughter's bedroom, and though these cameras were connected to Fletcher's only computer with Internet capabilities, and though the man held a degree in digital media, the county did not have sufficient reason to issue a warrant to search his computer for images of his children posted on the web. Prosecutors dropped the case.
The second precedent, the 1999 case of Jon Paul Burnett, was similar. At issue was whether or not a police officer's training and experience in dealing with child molesters qualified him to label Burnett as molester when he applied for a search warrant for the man's home.
To the layperson, these cases may appear extreme. But the law is an evasive mistress, they stand. So Judge Maloney was left with no choice but to concede their precedent over Mateo's sloppily constructed case. The warrant in Kelly's case was not granted to search the camera; it had been obtained to search for drugs. The subsequent evidence of child pornography was obtained in a legitimate search of the residence, and as inconvenient to criminals as it may be, if the cops find a body while looking for a gun, then you've got a body to account for.
When the sheriffs arrested Kelly June 6, they followed his posse to the house and performed a "citizen greet" (known as a knock-and-talk to the rest of us felons). The procedure goes like this: They knock on the door, ask if they can come inside and speak with the occupants for a moment, and then take their entry as a right to bring in a drug-sniffing dog. Kelly's roommates, unaware of what was to befall them, agreed to talk to the officers, only to then be told to sit on the couch while a K-9 did his trick.
Sure enough, they found weed in an upstairs bedroom (of a popular entertainer's house? I'm ashamed of you, Mr. Kelly). That led to the first warrant, which gained them access to Kelly's room marked "Private: Keep Out." Inside they found an "unusually large amount of commercially available adult materials," but nothing incriminating -- except a bag of white powder.
The mysterious substance appeared troublesome, though the officers were at a loss as to whether it was cocaine, heroin or maybe contraband alum. (Later tests proved inconclusive and drug charges against Kelly were dropped.) Then they spied the digital camera and decided to obtain a second warrant. "We were looking for pictures of drug consumption ... (People) often take pictures of themselves using drugs."
However, by this time, the Chicago pictures had already surfaced.
So a nexus was never created between the events in Chicago and here. That's not because Polk County sheriffs are bad with warrants. They were not looking for pornography to begin with, so they didn't make a case for pornography. A review of the file would probably have led Judge Maloney to the same conclusion.
This legal correspondent concludes that Maloney must have been wowed by the 2 foot by 4 foot blowup display of Mateo's affidavit seeking the warrant. That, and the secret passwords: Burnett and Fletcher.
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