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Judge: Loss of evidence 'inexcusable'

Orlando Sentinel (Florida)
BYLINE: Rene Stutzman, Orlando Sentinel

Seminole County, FL

Three years ago, Seminole County deputies shot and seriously wounded a Lotto millionaire as he was investigating -- with a pistol in his hand -- why people were tromping around his land at 2:30 a.m.

Robert G. Swofford Jr. sued. Now an Orlando federal judge has issued a scathing ruling, criticizing the Sheriff's Office for destroying several pieces of evidence, including the officers' guns.

"That we are here on this issue is inexplicable and inexcusable," wrote U.S. District Judge Mary S. Scriven.

As punishment, she has ordered the Sheriff's Office to pay as much as $300,000 of Swofford's legal fees.

Swofford's attorney had written the Sheriff's Office a letter in 2006, asking it to preserve all evidence associated with the shooting, but the sheriff's general counsel, David Lane, did nothing, according to testimony.

Lawyer: Items lost

The judge singled out Lane for the harshest criticism in her Sept.28 ruling and ordered him, as well as the sheriff and the deputies named in the suit, to pay the legal bills Swofford, 58, incurred in his fight over the missing evidence.

A paralegal in Lane's office sent copies of the preserve-the-evidence letter to several agency managers, including Sheriff Don Eslinger and the person in charge of firearms, Ann Mallory, but they, too, ignored it, the judge wrote.

Lane and Eslinger's spokesman, Lt. James Clark, would not comment on the order, saying the case has not yet come to trial.

But at a hearing about the missing items, sheriff's attorney Tom Poulton said they were lost -- not intentionally destroyed. He argued, in vain, that the Sheriff's Office should face no sanctions.

What's missing?

Gone are:
The 9mm Sig Sauer pistols used by the deputies who opened fire, William Morris Jr. and Donald Remus. The Sheriff's Office decided to swap out all its handguns, so it sent them back to the manufacturer, where they were disassembled.

Remus' laptop computer. It was erased, as were those of other deputies, and employees were given new ones as part of a general agency technology upgrade.

All e-mail sent by both officers the day of the shooting and in the 12 months following.

The uniforms the officers wore that night.

Parts of the radios the officers carried that night, including their earpieces and mikes.

The Florida Department of Law Enforcement investigated the shooting, forwarding its findings to the State Attorney's Office in Sanford, and prosecutors concluded neither Morris nor Remus had broken the law.

Both men also were cleared of wrongdoing by a Sheriff's Office review.

They had "no other reasonable alternatives than to resort to deadly force," wrote sheriff's Investigator Shannon Miller.

'Lawfully armed'

But the federal judge has been less generous. On Nov. 30, she rejected the cornerstone of the sheriff's defense: that the officers had immunity because their actions were reasonable.

The Sheriff's Office had asked her to throw out the suit. She said no. Jurors must decide, she wrote, whether officers deserved immunity.

"Mr. Swofford was lawfully armed and legally entitled to protect his property," the judge wrote.

Swofford won a $35 million Lotto jackpot in November 2004, but the former U.S. Postal Service employee may be better known as the man who dated two sisters simultaneously, fathered children by them both within months of each other and set up a household, where they all lived together.

That was the mid-1990s. Years before he won the lottery, the household had broken up.

Still, one of the sisters, Ann Lackey, was married to Swofford when he won the jackpot. He did not claim the prize until after he negotiated a $5 million divorce settlement, with an additional $1 million going toward child support.

The other sister, Mary Lackey, sued, alleging that even though Swofford never married her, he promised her one-third of his property.

A judge rejected that claim.

Differing accounts

The night Swofford was shot, April 20, 2006, Remus and Morris were trying to track two burglary suspects that Remus had spotted in an apartment complex next to Swofford's home on 7 acres near Altamonte Springs.

The deputies poked out some planks in the fence between the two pieces of property and went on Swofford's land with a search dog.

Swofford heard a commotion, grabbed his semiautomatic handgun and went outside.

Months earlier, he had complained to the Sheriff's Office about criminals coming on his land and had asked that deputies regularly patrol his place. The Sheriff's Office had complied. In fact, Remus had patrolled Swofford's property about three hours before the shooting.

Swofford and the deputies have given different accounts of what happened in the seconds before the shooting. The deputies said they called out several times, identified themselves and told Swofford to drop his weapon.

Swofford said they said nothing. He said he saw two men but did not realize they were deputies. He said he did not point his pistol at them.

The officers fired seven rounds, wounding Swofford in both arms, abdomen and leg. He was hospitalized for several months.

Intends to appeal

The Sheriff's Office three weeks ago filed notice that it intends to appeal two of Scriven's decisions: the sanctions she imposed because of the missing evidence and her refusal to accept the deputies' immunity claim.

Morris is still a deputy. Remus resigned two years ago, saying he wanted to pursue a business opportunity.

The case is currently set for trial in February, but the appeal could delay that for a long time.

CONTACT: Rene Stutzman can be reached at 407-650-6394 or rstutzman @orlandosentinel.com.

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