A Shot in the Dark, Part II

After firing his gun at a police officer, Mario Barcia's life has gone from bad to wretched

It is Lowy's belief that Dominguez would not answer questions for fear of implicating himself in wrongdoing. Intense questioning, Lowy contends, would reveal that Dominguez and his partner Chad Murphy had no legal basis for entering Barcia's back yard. "They were never executing a warrant," says Lowy. "They didn't have probable cause. All they had was a suspicion that someone threw a rock at their car -- a rock they have admitted they did not know where it came from."

Lowy petitioned Judge Leonard Glick to compel Dominguez to submit to a deposition. In response, the judge summoned Dominguez to appear before him June 7, the same day Barcia's trial is set to begin, to clarify whether the sergeant was indeed invoking his Fifth Amendment right against self-incrimination.

Dominguez's attorney acknowledges that he advised his client not to answer Lowy's questions, but not for the reason Lowy believes. "Sergeant Dominguez is stuck between a rock and a hard place," says C. Michael Cornely, the private lawyer contracted by the Police Benevolent Association to represent Dominguez. In this case, the rock would be his legal obligation to answer questions at a deposition. The hard place would be the State Attorney's investigation of Dominguez for having discharged his gun. Such investigations are routine whenever an officer fires a weapon -- but this particular investigation seems to be taking a very long time. (Ed Griffith, spokesman for the State Attorney's Office, says prosecutors try to finish police-shooting investigations within six months, but complex cases can take longer.)

Jonathan Postal

As an added twist, Dominguez in February was relieved of duty with pay pending the results of an unrelated investigation by the department's internal-affairs bureau. Miami-Dade Police officials will not comment on the specifics of that probe.

Lowy also takes issue with Charles McCully, the homicide detective who interrogated Barcia last October. As part of discovery, a defendant is entitled to the evidence compiled by state prosecutors. This includes witness statements and reports prepared by investigators. During a May 5 court hearing, Timothy VanderGiesen, the assistant state attorney prosecuting Barcia, informed Judge Glick that he had not received the investigative report from McCully, a 22-year veteran of the department. Judge Glick then ordered McCully to advise the court when he would complete his report, a document Lowy argues should have been made available to him at least two months ago.

During Barcia's bond hearing last year, McCully described the accused cop shooter as an unstable young man prone to losing control. "He ended up getting very, very agitated, very aggressive," McCully said regarding Barcia's demeanor during a five-hour interrogation.

McCully declines to discuss the case, but department spokesman Sgt. Dennis Morales says, "I can assure you that in a case of this magnitude and this complexity, the turnaround on this particular investigative report is well within reason." (Lowy finally received a copy of McCully's report on May 10.)

Delays on the part of prosecutors and investigators are not uncommon, according to two local criminal defense attorneys. "It's not unusual but it is unfortunate," says Joel Hirschhorn, a former state prosecutor. Kenneth Feldman, a defense attorney who teaches law at St. Thomas University, agrees: "Sometimes the state is not very cooperative." Waiting more than six months for a police report is extreme, according to Feldman: "That is a very long time to wait for the reports that tell you why the police found it necessary to arrest you in the first place."

In contrast to the speed with which Barcia was charged with attempted murder, the subsequent legal delays have lent a surreal quality to his journey down the rabbit hole of the criminal justice system. "It's not a perfect system," Barcia says. "But then, why would I expect it to be?"

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