Justice Undone, Part 4
Bjorn DiMaio is sixteen years old, Anthony Vincent is seventeen. Next Monday, in accordance with Florida law, the two boys will begin serving second-degree murder sentences for the killing of their best friend, Andrew Morello.
According to the official version of events, the sixteen-year-old Morello was shot and killed on February 1, not by DiMaio or Vincent, but by off-duty Metro-Dade police officer Laura Russell, as the teen-agers were attempting to steal a set of speakers from a car parked next door to Russell's house in North Miami. Russell claimed Morello was bearing down on her in his father's van and that she fired one shot in self-defense. Under Florida's felony murder rule, a person is guilty of murder if he or she participates in the commission of a felony crime during which someone dies.
Tried as adults, DiMaio and Vincent each faced more than twenty years in prison. On July 9, however, the boys pleaded guilty to the charges, in a deal with prosecutors that sentenced them to three years in a prison camp for youthful offenders, plus three years of probation.
Assistant Public Defender Michael Petit, who represented DiMaio, says prosecutors broached the subject of a plea bargain just before the trial, which was scheduled to begin July 7. Attorneys for the state first offered five-year prison sentences, but as jury selection commenced, the offer was reduced to three years. "I'd really like to think they believed these kids have been through enough," Petit says of the Dade State Attorney's Office.
The state's magnanimity, however, might have had less to do with sympathy than with the fact that a trial might have proved embarrassing to police and prosecutors. Along with Vincent's attorney, Petit was prepared to argue that the shooting was unnecessary and that events did not unfold the way Laura Russell and her husband George, a City of Miami policeman, had testified.
In a sworn statement taken for a March inquest regarding the shooting, Laura Russell claimed the van was heading straight for her when she fired. But the location of the bullet hole in the windshield and the shot's probable trajectory indicated that the fatal shot was fired from off to the side, not from the front.
"I've never seen a three-year offer on a murder charge, so that tells you they didn't want to try this case," Petit asserts.
Assistant State Attorney Gary Rosenberg refuses to explain why he decided to offer the boys a last-minute plea bargain, but he denies it had anything to do with the possibility that the defense might attempt to discredit the Russells' testimony. Says Rosenberg: "I was never concerned about going to trial."
"They were guilty from day one of murder and I was glad to see justice was done," adds C. Michael Cornely, the Police Benevolent Association (PBA) attorney who represents Laura Russell. "I believe that my client has been vindicated by their plea of guilty."
Clearly, a jury trial would have been a far more difficult court experience for prosecutor Rosenberg than the daylong March inquest, after which County Court Judge Morton Perry ruled Russell's shooting of Morello was justified. "Justice Undone," published in New Times on April 15, revealed that the inquest was substantially flawed.
Because of the way inquests are structured, Rosenberg was permitted to present to Judge Perry whatever information he saw fit, and he was able to withhold key evidence that contradicted the Russells' version of events. For example, Rosenberg presented no evidence regarding the trajectory of the bullet. Similarly, a 911 emergency tape, on which Laura Russell is heard telling an operator that the van "kept backing up," were never played for Judge Perry. "The problem with the inquest," argues public defender Petit, "was that there was no one on the other side to challenge the `evidence' being presented. Rosenberg was saying whatever he wanted to say."
At a criminal trial, Rosenberg would have confronted a pair of defense attorneys who were better prepared to challenge his assertions than Judge Perry, who presided over the inquest on short notice and issued his ruling immediately. Rosenberg also faced the awkward prospect of having Laura Russell refuse to testify about the shooting that night; at her deposition for the trial, she pleaded the Fifth Amendment against self-incrimination.
Cornely, Laura Russell's PBA attorney, says he advised his client to refrain from testifying because prosecutors have not yet closed their investigation of her actions. State Attorney Janet Reno has also agreed to reopen the inquest so that information initially withheld can finally be submitted. (The Morello family is in the process of gathering that information; no date for a new inquest has been set.) Russell also remains under investigation by the Metro-Dade Police Department's internal affairs unit.
With time off for good behavior, Bjorn DiMaio and Anthony Vincent could be freed within eighteen months. Bjorn's father, Joe DiMaio, is angry that his son will carry a conviction on his record for the rest of his life, but he says the family was far more daunted at the prospect of Bjorn going to prison for twenty years. "We didn't want to take any chances because the risk was too great," says Joe DiMaio. "We didn't have any choice."
His voice a mixture of resentment and sorrow, he adds, "My son and Anthony Vincent didn't kill anybody. What future can a boy who is sixteen years old have now that he is a convicted killer?
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