Charges dropped in three-year-old West Palm Beach police beating case

WEST PALM BEACH — More than three years ago, images of two West Palm Beach police officers kicking and punching a handcuffed suspect flashed across television newscasts, embarrassing city leaders and angering prosecutors who later called the case "a serious misuse of public trust."

The recent dismissal of official misconduct charges against Louis Joseph Schwartz and Kurt Graham, however, came and went with much less fanfare. Prosecutors dropped the charges against both men last month and allowed Graham to plead guilty to a single misdemeanor battery charge in a plea deal where he received no jail time or probation.

Why were the charges dropped now, after years of legal wrangling in the case? Attorneys on both sides say it came down to the same video that sparked outrage, which when enhanced shows that the handcuffed suspect provoked the attack.

The state attorney's office, the FBI and city police investigated the May 2008 beating of Pablo Valenzuela for a year before charging Schwartz and Graham with official misconduct.

A police dashboard camera recorded Graham handcuffing Valenzuela as he lay on the ground, then punching Valenzuela in the head. The footage shows Schwartz kicking Valenzuela in the face and then Graham delivering a kick so hard that it lifts Valenzuela off the ground.

But about two months ago, Schwartz's attorney, Douglas Duncan, said he played a slower version of the video for Palm Beach County State Attorney Michael McAuliffe and other prosecutors in an effort to persuade them to drop charges. Duncan claimed that version showed that Valenzuela, who police say had attempted to rob a CVS on Dixie Highway just before the confrontation, appeared to try to bite Graham immediately before Schwartz kicked him and Graham punched and kicked him.

Graham's attorney, Michael Salnick, said that showing prosecutors the enhanced video gave them a better look at what actually happened and should have silenced critics, including some city leaders, who believed the officers were guilty.

At the time, then-Mayor Lois Frankel called the video "shocking" and "embarrassing."

"They're entitled to their opinion, but they were wrong," Salnick said.

Assistant State Attorney Danielle Croke wrote a memo to McAuliffe dated Sept. 22 recommending that the official conduct charges against the Schwartz and Graham be dropped. She said that a battery charge against Graham should stand because a final kick Graham made to Valenzuela "constituted an attempt to inflict punishment and was not responsive to any threat or risk of harm."

Court records show the charges against both men were dropped the same morning.

McAuliffe said dropping the charges doesn't mean that prosecutors condone or approve of the officers' actions. But as evidence in the case unfolded, he said, he and other prosecutors were forced to reevaluate the case.

"It's a very difficult decision to make," McAuliffe said. "But in the end, you always come back to what we do as prosecutors and make a determination based on which charges are appropriate and not on larger public sentiment, one way or the other."

In addition to the video evidence, prosecutors said that despite Graham giving multiple versions of what happened before the beating - including telling a lieutenant that he kicked Valenzuela while trying to move a pocketknife he saw - it wasn't punishable under the official misconduct criminal statute because he never put those claims in writing.

And prosecutors said they later discovered that Schwartz, who they say Valenzuela attacked with pepper spray before the taped confrontation, wasn't present for a later conversation between Graham and a supervisor originally used as evidence of his participation in an alleged conspiracy.

Frankel and Al Johnson, the county's public corruption prosecutor at the time who described the officers' actions as a "serious misuse of public trust," could not be reached for comment Friday.

Graham, then 24 and fresh out of training, resigned from the department shortly after the incident.

West Palm Beach police fired Schwartz and another officer, Jason Zangara, who was involved in a subsequent scuffle with Valenzuela. Zangara later got his job back and was never charged with a crime.

Graham pleaded guilty to a misdemeanor battery charge on Sept. 22. Circuit Judge Jeffrey Colbath ordered him to pay $605 in court costs and attend a four-hour anger management course as part of the deal.

Salnick said he believed a jury could have acquitted Graham on the charge, but he decided to take the plea because it was in his client's best interests.

Records show Valenzuela was sentenced to three years in prison and released this year. His last listed address was in Boynton Beach, but he could not be reached for comment.

While still incarcerated in March, Valenzuela wrote a letter to Colbath expressing disdain for the former officers' defense attorneys and fearing the charges against the officers would not be taken seriously. He also asked that the officers

not be given plea deals.

"(Prosecutors) have told every officer in the state of Florida that it is o.k. to beat a handcuffed suspect as long as you tell a supervisor about it," Valenzuela wrote.