A Shot in the Dark, Part II
Life could hardly get any worse for Mario Barcia. He's unemployed and broke. He and his wife have crammed themselves into the home of a relative. A court order prevents him from physically setting foot outside that home. His wife is expecting a baby within weeks. And he is facing life in prison.
"It's been hell," Barcia says. "At night I can't sleep."
The nightmare began this past October 24. Shortly after midnight on that date Barcia fired his handgun at two men prowling in the back yard of his Cutler Ridge home. Barcia had reason to suspect -- and fear -- they were home invaders. They were not. In fact they were Miami-Dade Police officers. (See "A Shot in the Dark," December 18, 2003.)
Sgt. David Dominguez and Ofcr. Chad Murphy had entered Barcia's property in search of an unidentified vandal who allegedly threw a rock at Dominguez's squad car. Barcia was asleep with his wife in their bedroom. A banging noise awakened him, though he wasn't sure where it was coming from. Then, through his bedroom window, he saw flashlight beams playing across the back yard.
His home had been burglarized just two months earlier, a crime he believed had been committed by a local youth gang. Barcia was frightened. He grabbed his Glock handgun from his nightstand (he'd purchased it right after the burglary) and edged out of the bedroom to investigate.
What happened next remains in dispute, but shots were exchanged, Barcia apparently being the first to fire. One of Barcia's bullets hit Murphy in the back and probably would have killed him had he not been wearing body armor. He was not seriously injured.
During a 911 emergency call that night, and during the protracted interrogation that followed, Barcia repeatedly stated that he thought criminals were trying to break into his house. He did not intend to shoot a police officer. He didn't know the two men in his yard were police officers.
Nevertheless the Miami-Dade State Attorney's Office quickly charged 25-year-old Barcia with two counts of attempted first-degree murder of a police officer. If convicted, he could spend the rest of his life in prison. His trial is set to begin June 7.
Following the incident, Barcia and his pregnant wife Mercedes sold their home and used the proceeds, $130,000, to pay off their mortgage, to pay back friends and family members who'd helped Barcia bail out of jail, and to fund the continuing cost of a defense attorney. The couple has been living with Mercedes's grandmother in Westchester. Their baby is due June 23.
Barcia had been working as a clerk with the county's family court in downtown Miami. He received positive evaluations and was well liked by his colleagues, more than a dozen of whom showed up for his bond hearing in November. (Mercedes works for the county's Department of Environmental Resources Management.) But after the shooting he was suspended without pay. Since then steady employment has been elusive.
In early January he quit a job as a used-car salesman after being robbed at gunpoint while leaving the dealership. Subsequently he landed a job as a delivery driver for the Miami office of Tubelite Inc., a New Jersey-based manufacturer of neon sign parts. But Tubelite fired him on May 10, Barcia says, because at the time he was hired he did not disclose his arrest on the attempted-murder charges. "They also told me that my case brought anxiety and panic to the office," Barcia reports, adding that he was escorted out of Tubelite's building by two county police officers who informed him he'd be arrested for trespassing if he returned.
Ironically this past February Tubelite had named Barcia employee of the month. A certificate was signed by Gregory McCarter, the company's chief operating officer, and Raymond Peña, the general manager who fired Barcia. (Peña did not return calls for comment.)
As a condition of his release from jail, Barcia was placed under "house arrest," meaning he wears an ankle monitor and reports regularly to a probation officer. But without an approved job, he is confined to home. On April 10, Barcia recounts, his wife was complaining of pain from kidney stones, but his probation officer refused to let him drive her to Baptist Hospital. "I had to call Miami-Dade Fire Rescue to come take Mercedes to the emergency room," he complains. "The paramedics had to speak with my probation officer so I could have permission to go with them to the hospital."
Barcia's legal case has been equally troublesome. Defense attorney Ronald Lowy says the police officers are refusing to undergo questioning. And the State Attorney's Office, he claims, is withholding documents that should be provided to him as part of a standard trial procedure known as discovery. "It is totally inappropriate, unfair, and a manifest injustice for Mario's accusers not to cooperate in the normal discovery process," Lowy vents during an interview at his office near the Richard E. Gerstein Justice Building in Miami.
Lowy is particularly upset that Sgt. David Dominguez, on the advice of his attorney, refused to answer questions at a March 31 sworn deposition. Dominguez did, however, cooperate with prosecutors: He wrote an affidavit and provided a sworn statement to the State Attorney's Office detailing his account of what happened on October 24, 2003. (Dominguez, Murphy, and other officers at the scene of the shooting have stated under oath that Barcia fired at them even though they identified themselves as police.)
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.)
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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