When the police don't keep proper computer records, or produce them as required

[Dwight Hines]

IN THE COUNTY COURT OF THE SEVENTH JUDICIAL CIRCUIT,
IN AND FOR ST. JOHNS COUNTY, FLORIDA

CITY OF ST. AUGUSTINE,


vs. Case No.: 07000010MOMA
                                                        DIVISION: 65  
                                                                       
MERRILL ROLAND,
                        Defendant.
______________________________/


WRITER'S MOTION TO INTERVENE, WITH
INCORPORATED MEMORANDUM OF LAW

 COME NOW, the private citizen and writer, Dwight E. Hines,
hereinafter referred to as "Intervenor Hines", who has a direct and
immediate interest in subordinate issues in the instant case, issues
that will be effected by the Judgments of the Court, to NOTICE filings
with the Court for a limited appearance before the Court, pursuant to
Article I, s. 24, Article V, s. 2, Florida State Constitution; Chapter
119, Fla. Stat. (Florida Open Records Act); Rule 2.420,
Fla.R.Jud.Admin.; Florida Common Law (Barron v. Florida Freedom
Newspapers, Inc., 531 So.2d 113 (Fla. 1988));  the First, Sixth, and
Fourteenth Amendments to the United States Constitution; and Chapter
69.081(6), Fla. Stat. (2007), to move the Court, to Order Invervenor
Hines to intervene in this case.

Because the City of St. Augustine departments and agencies are
inextricably intertwined in their computer information systems, and
other services, with the St. Augustine Police Department, Intervenor
Hines will move the Court, to Order that all City of St. Augustine
departments and agencies comply completely and accurately with Rule
1B-26.003, F.A.C.

The Sworn Affidavit of Writer Dwight Hines' Limited Interest in "The
City of St. Augustine v.  Merrill Roland" and the Sworn Affidavit of
Dwight Hines on St. Augustine Police Department's Failures to Comply
with Rule 1B-26.003, F.A.C.; Chapter 119, Fla.Stat. (2007), and
Chapter 943.081, Fla. Stat. (2007), are attached and provide factual,
verifiable information for this Writer's Motion to Intervene.

Florida Courts are required to determine that a motion for
intervention assert an interest that is immediate and direct; that the
interest is already one at issue; that the issue be the type of issue
that the would-be intervenor be a proper party to raise; that the
motion be made before final judgment in the case; and that the
intervenor's interests are not going to be "fully protected by [the]
one of the original parties to the suit", Wildlife Federation, Inc. v.
Board of Trustees of the Internal Improvement, 707 So. 2d 841, (Fla.
5th DCA 1998).  In Morris Communications Co., LLC v. State, 844 So.
2d 671 (Fla. 1st Dist. App. 2003), the Court found that media were
"entitled" to discovery materials in a criminal case.  Additionally,
Intervenor Hines' right as a writer to publish "implies a freedom to
gather information". Branzburg v. Hayes, 408 U.S. 665, 1972.
Intervenor Hines' direct and immediate interest in the instant case
will be impacted by the judgments of the Court on the failure of the
St. Augustine Police Department to comply completely to discovery
requests because Intervenor Hines will be writing about the instant
case.  Intervenor Hines has written about other criminal cases and has
successfully intervened in a Florida homicide case to unseal records.
Intervernor Hines is also a member of the public and the failure of
the St. Augustine Police Department to repeatedy fail to respond
accurately and completely to Public Records requests and to discovery
requests is more than likely caused by the failure of the St.
Augustine Police Department and other departments of the City of St.
Augustine to be in complete and accurate compliance with Rule
1B-26.003, F.A.C., but are all violations of the public policy of
openness in government.

In the instant case, the St. Augustine Police Department has
repeatedly refused to completely and accurately comply with Rule
3.220, Fla. R. Crim. Proc. (2007) discovery requests, which is exactly
like the repeated failures of both the St. Augustine Police Department
and other City of St. Augustine departments to comply completely and
accurately with Chapter 119, Fl.Stat. (2007) requests. It is relevant
and material that both the St. Augustine Police Department and other
City of St. Augustine Departments are not in compliance with Rule
1B-26.003, F.A.C., governing electronic records management.  The
failure to comply with Rule 1B-26.003, F.A.C. means that there is no
way that Defendant Roland, or Intervenor Hines, will know what
information is typically collected and maintained by the City of St.
Augustine Police Department.

Because the St. Augustine Police Department and other City departments
have inextricably intertwined computer information systems, and share
other basic services, and because the St. Augustine Police Department
and other City departments are not in compliance with Rule 1B-26.003,
F.A.C., it is not possible to know what additional information exists
that is relevant, material, and pertinent to Defendant Roland that has
not been provided to the Court as is required.   The sharing of
information systems within City of St. Augustine departments means
that information about the defendant may be stored or managed in a
computer that is not physically or logically located within the City
of St. Augustine Police Departments.   Therefore, without all City of
St. Augustine Departments being in complete and accurate compliance
with Rule 1B-26.003, F.A.C., the St. Augustine Police Department could
honestly, though misleadingly, reply to a Chapter 119, Fla. Stat.
(2007) request or honestly reply to Rule 3.220, Fla.R.Crim.Proc.
(2007) discovery requests stating they only have information units A,
B, C, when, in fact, they have information units A, B, C, D, E.

A failure to provide complete and accurate discovery information is a
violation of due process, the right to a fair, open trial, and the
Florida Rules of Criminal Procedure.  The St. Augustine Police
Department, by their repeated failures to comply with Rule 3.220, Fl.
R.Crim.Proc, (2007) discovery requests, and their repeated failures to
respond, or dodge, Chapter 119, Fla. Stat. (2007) requests, and their
repeated failures to comply with Rule 1B-26.003, F.A.C., indicates the
St. Augustine Police Department must provide a complete and accurate
list, which is already required by Rule 1B-26.003, F.A.C., of all the
information the St. Augustine Police collects in  criminal cases so
Defendant Roland can use to verify they have not left out other
information that is relevant.

For example, Defendant Roland, as part of discovery, asked for all the
information the City of St. Augustine Police Department had related to
Defendant Roland's case, and they failed to report the photographs
that were taken of Defendant Roland.  Even after the Court ordered the
St. Augustine Police Department to provide the photographs, they
failed to provide the Defendant Roland access to the EXIF data for the
camera used for the photographs.  Part of the major case of Defendant
Roland is that photographs were taken, and that they would show
Defendant Roland was not on St. Augustine City property.   The EXIF
data are a necessary start on determining the authenticity of digital
photographs in time and content.  For example, in St. Augustine, there
is a retired Judge who easily modifies digital photographs to include
himself in family pictures where he was left out because he was taking
the photograph.  Intervenor Hines can not tell the photograph was
modified.  Defendant Roland has the right to authenticate digital
photographs that were taken of him.

Similarly, Defendant Roland learned this past week that the St.
Augustine Police Department records all police radio traffic.
Defendant Roland obtained a recording of the radio traffic from the
St. Augustine Police Department for the period at and around the time
he was ticketed.   If the St. Augustine Police Department had been in
compliance with Rule 1B-26.003, F.A.C. , Mr. Roland likely would have
known long ago that recordings of police radio traffic existed.

The repeated refusals to comply with discovery requests, braided with
the repeated refusals to comply with Chapter 119, Fla.Stat.(2007)
requests, and the failure to comply with Rule 1B-26.003, F.A.C., shows
a chronic problem in the St. Augustine Police Department that more
than likely has negatively impacted other criminal cases in St. Johns
County and Circuit Courts.

Recent reports, "Contacts Between Police and the Public, 2005", April,
2007, NCJ215243, and "Citizen Complaints about Police Use of Force",
June, 2006, NCJ210296, available at http://www.ojp.usdoj.gov, show a
consistent racial difference in perceptions of the police.  Chapter
166.093, Fla. Stat. (2002), requires all municipal law enforcement
agencies to incorporate antiracial or antidiscriminatory profiling
policies into their agencies policies and practices.   The inability
of the St. Augustine Police Department, and other City of St.
Augustine departments, to comply with public records requests and
discovery requests, and to fail compliance with Rule 1B-26.003,
F.A.C., a rule that is fundamental to both types of information
requests, makes it impossible to determine the ecological validity of
any statistics or data provided by the St. Augustine Police Department
on Chapter 166.093, Fla. Stat. (2002).  It is more than likely that
the fundamental rights of other accused individuals have been
differentially violated by race in St. Johns County and Circuit
Courts.

        WHEREFORE, Intervenor Hines PRAYS the Court to move expeditiously to
grant this motion for the limited purpose of a limited appearance at
the November 29, 2007 trial of Defendant Roland, and

1) To Order that Dwight Hines Intervene in the case of The City of St.
Augustine v. Merrill Roland; for the limited purpose of appearing and
moving the Court,

2) To Order the City of St. Augustine Police Department to comply
completely and accurately with Rule 1B-26.003, F.A.C., within 30 days
of the Order,

3) To Order the City of St. Augustine to comply completely and
accurately with Rule 1B-26.003, F.A.C., within 60 days of the the date
of the Order,

4) To Order the St. Augustine Police Department to provide to the
Court a list of the names and case numbers, for St. Johns County and
Circuit cases, of all individuals and groups the St. Augustine Police
Department investigated or supported prosecution of within the past
five years, within 90 days of the date of the Order,

5) To Order the St. Augustine Police Department to completely and
accurately respond to Defendant Roland's discovery requests within 15
days, and
and any other actions or relief necessary in the interest of justice.

Respectfully Submitted, this ___day of November, 2007.


________________________
Dwight E. Hines
        150 Nesmith Ave.
St. Augustine, Florida 32084


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