He can't subpoena evidence, he says, because Miami-Dade County State Attorney Katherine Fernandez Rundle has not closed her "investigation" into the case, eight years later.
"There's no excuse for eight years," Samms tells New Times. "You can’t even give me a reason for eight years? How damaging is it to a civil rights case? It makes winning one almost impossible."
According to data the State Attorney's Office provided to New Times, there are 59 open cases into police-involved shootings at Rundle's office. Compare that to Jacksonville's State Attorney's Office, which had just five open police-involved shooting investigations as of April, according to data from the Florida Times Union. (There have been more shootings by police in Jacksonville since that article was published.) All of the open cases in Jacksonville stem from 2016 and 2017.
But 24 of Rundle's open cases are older than two years — and nine are older than four. In fact, the oldest case her office is still supposedly investigating dates to August 2008.
Rundle's spokesperson, Ed Griffith, did not respond to multiple emails sent this week seeking comment or more information about the open cases, or why so many investigations have remained open for so long.
Rundle's office provided only the date of each incident and the department where it occurred. But some of the dates match up to police-shooting cases that seem questionable, such as a September 6, 2010 incident in which an off-duty Miami-Dade Police Officer shot two men at an ATM after claiming the men tried to rob him. That investigation remains open, as does a January 2013 case in which Hialeah Police shot an alleged "burglary suspect" outside a marine supply shop after someone called 911 to report suspicious activity.
The vast majority of open cases involved people of color who were shot by police. (That might simply be a reflection of the fact that people of color are disproportionately the targets of police shootings.)
When police shoot civilians, it's up to a local state or district attorney to decide whether the officer violated the law and whether to bring charges against that officer. Typically, if a state investigation into an incident remains open, that prevents the public or the victim's attorney from obtaining evidence.
The list of open cases is actually slightly better than it was five years ago. In 2012, Samms became so upset with Rundle's office that he and a researcher from St. Thomas University filed records requests and conducted their own internal study to see how many cases Rundle's office was sitting on. (He provided a copy of the previously unreported study to New Times.) In all, there were 79 open police-shooting cases that year, 37 of which were cases where cops had shot someone dead.
At the time, at least two nonfatal investigations — regarding cops who'd shot different men in the arm — had remained open for six years. Astoundingly, Samms noted Rundle's office had recently closed one nonfatal shooting case in 2011 — after leaving it open for 11 years.
In comparison, the Florida Times-Union wrote in April that local defense lawyers were upset that state attorney investigations in the Jacksonville area were taking an average of 261 days — less than a year. But Samms' report in 2012 noted that fatality cases were closing after an average of two years (730 days), and nonfatal cases had been closed after an average of 4.5 years (1,642.5 days).
The statute of limitations for wrongful-death lawsuits in Florida is only two years. Limits on false arrest, assault, or battery cases run for four years.
In 2011, the Miami Herald's David Ovalle noted that Rundle's office had 63 open cases dating back a maximum of five years. Even Miami-Dade's then-police director, as well as its union president, were critical of her office.
“The worst thing we can do is rush to judgment, rush to a decision on a case without having all the information,” Rundle said at the time. But nothing appears to have happened to speed up the backlog in the six years since that story ran, and, in terms of how long some individual cases have stretched on, the delays seem to have gotten worse.
New Times spoke to three local defense lawyers who deal regularly with civil rights cases and police-brutality issues. All three said the department's plodding pace in investigating law-enforcement officials hamstrings families who might have been wronged by cops, and works to prevent civil rights lawyers from obtaining basic evidence like 911 call transcripts and from interviewing crucial witnesses.
"When everything is a pending investigation, you can't get 911 tapes, photos, videos, civilian witnesses," local attorney Michael Petit tells New Times. "People die in the interim, people move, cases fall apart."
In another open case from 2013, a Hialeah cop standing guard outside a Publix shot a man who police said was "committing a crime" in the parking lot.
The family of that victim, 30-year-old Javier Diaz, said that he was not armed when he was shot and that the incident was likely a simple purse-snatching. They said when Diaz saw police approach, he tried to flee in a car and was shot through the windshield. The bullet passed through Diaz's lung, and he was airlifted to Jackson Memorial Hospital's Ryder Trauma Center in critical condition.
"We really want to know what happened," Diaz's sister told NBC 6 that year. But after nearly four years, the State Attorney's Office has not been able to close a case in which there were likely multiple witnesses and ample security footage.
Five days later, Hialeah Police fatally shot a 51-year-old man inside a home during a possible domestic dispute after a woman called 911 and said he "possibly" had a gun. Police did not initially say whether the man was actually armed. That investigation is also still open.
In an open case from April 2015, a witness said an MDPD bike-patrol cop allegedly "emptied his clip" into a 22-year-old black man police said had an automatic weapon. The man, Tevon Barkley, died.
Rundle's record has come under deep scrutiny this year since she received national blowback for not charging four state prison guards who oversaw the death of Darren Rainey, a black inmate with severe schizophrenia who many witnesses said was scalded to death in a boiling-hot prison shower as punishment. Despite that heavy criticism, Rundle is reportedly floating the idea of running for higher state office — attorney general or possibly even governor.
But first, she will have to convince Miamians that she ought to keep her current job. The Miami-Dade County Democratic Executive Committee (DEC), Rundle's local political party, is considering passing an ordinance asking her to resign. Two weeks ago, Rundle stood in front of a crowd at the Democrats' local meeting and defended her record, arguing that her office had no problems holding police accountable. But the crowd didn't buy it. Multiple speakers brought up the fact that, after 24 years in office, she has never charged an on-duty cop for killing someone.
This week, the Miami Herald's Julie K. Brown revealed Rundle had blatantly lied to the public that night by claiming she'd convicted more than 300 police officers in her 24-year tenure. In reality, Rundle, a seasoned prosecutor, had apparently "confused" the terms "prosecuted" and "convicted" and has since refused to provide the Herald with a list of officers her office has actually convicted. John Rivera, head of the Dade Police Benevolent Association, guessed that Rundle's office has instead convicted a "handful" of local cops. (Brown also outlined multiple falsehoods and misleading statements Rundle and her team spread about the Rainey case.)
New Times' review of Rundle's open investigation list suggests the public is right to be critical of her record on holding state employees accountable. Ray Taseff, a defense lawyer, tells New Times he's been involved in "at least a half-dozen" police-shooting lawsuits in Miami-Dade and has been forced to wait each time as Rundle's investigations into each case have stretched on for years.
"This is epidemic," Taseff says. "There's no truer expression than 'Justice delayed is justice denied.' When they linger like that, it's unfair to everyone, even the officers, who are sort of put on ice a little bit, plus the families and the people from the community."
Taseff represented the family of Rudy Morris, an unarmed man fatally shot by City of Miami Police in Liberty City in June 2005. Taseff said it took "three, close to four years" for Rundle's office to close its investigation into what actually happened. The family sued in 2007 and waited four years before a Miami-Dade Circuit judge in 2011 ruled that the shooting violated Morris' civil rights and awarded damages to the family.
Taseff noted, however, that with each passing year, winning a case grows increasingly difficult.
"Witnesses become very hard to find," he says. "It's patently unfair. I was a public defender for many, many years. One of the things the prosecutors complain about is defense lawyers stringing cases out so they lose their witnesses."
Plus, he says, the State Attorney's Office does not seem to be taking the same level of "care" when it comes to filing charges against civilians — especially given how often felony cases fall apart in the county.
"I understand how things can get complicated," he says. "Again, everyone should be entitled to due process. But it's such a different standard than the crap they routinely file against regular people in Dade County. Close to half of all the cases they file as felonies are dismissed or gone within 30 days for insufficient evidence."
In April 2015, the Miami Herald noted that Rundle's investigation into the 2010 police killing of Joeell Johnson, a 16-year-old black victim suspected of armed robbery, had been open for five years. Rundle's office closed that case a month after the Herald noted how long the investigation was taking — and cleared the cops who shot Johnson.
Petit says he has also routinely run into roadblocks that stem from slow-moving state attorney's investigations. He described it like the "pulling of teeth."
"What happens is the witnesses are stale and certain things disappear in the normal course of time, like police communications," he explains. "In Miami-Dade County, some communications are only kept for 30 days. These things are gone." He describes one investigation that stretched for four years; in that time, he claims, Rundle's office obtained zero new evidence from the day it was filed. He says her office just sat on it and did nothing.
"Candidly, nothing was done," he says. "Nothing was done past the initial investigation."
Petit adds that he thinks the small number of civil rights lawyers who take these kinds of cases aren't able to solve the problem unless a higher body steps in to take over.
"It smells really bad," he says. "People aren’t aware of it. But unless the Department of Justice gets involved, what are we to do? People don’t care."
As for Samms' case, Petit met with Rundle's office in 2012 and handed her assistant state attorneys copies of a report he had compiled personally.
"The perception is that because the victims of these shootings are all minorities, it is not a priority of your office to push these investigations to a conclusion," he wrote in the report. "It is hard objectively for you to say differently when the statistics show these numbers. Justice delayed is justice denied."
Five years later, the McCoy case remains open.