Capellini trial–judge grants directed verdict of “NOT GUILTY”

Posted on 24 May 2014 by JLusk


Capellini trial

 Notes from the Courtroom

Friday, May 23

2:28p.m. –After hearing arguments from Assistant State Attorney Catherine Maus and Defense Attorney David Bogenschutz, Broward Circuit Judge Marc Gold ruled that the copy of the agenda, which was not previously provided to defendant Al Capellini upon his request, will be admitted into evidence and the trial will proceed this afternoon.

Bogenschutz argued further that the introduction of this document now, after the defendant testified, is highly prejudicial and, on that basis, he just moved for a mistrial.

Motion for mistrial has been denied.

2:48 p.m. –Now arguing about instruction to be given to jury after introduction of document.

Judge will instruct the jury that the document was provided to the defendant at 5:21p.m. on May 21 after he testified. He deleted the proposed language that it was provided 6 years after being charged and 11 years after the meeting in question.

2:50 p.m. —Jury brought in.Instruction was given.

Peggy Noland took the stand to resume testimony.

Maus showed her the agenda and bottom of pg 1. #2 under quasi-judicial hearing. That was Capellini’s project. Whether it was later added to the consent agenda she could not say.

Bogenschutz resumed his questions. He showed her a waived quasi judicial hearing for Deerfield Park development.

5/3/03 shows it went to Consent Agenda and applicant waived quasi judicial hearing.

Noland testified that the agenda shown to her by Maus did not depict the way the agenda looked in 2003, since at that time, it was printed on both sides.

Bogenschutz showed her the format of his agenda exhibit and she said that, in the 12 years she was there, it was always back and front.

Noland spoke glowingly about Al as mayor. He had the city headed in a positive direction and he had a good reputation.

Maus then came back and explained she had shown Noland the wrong document.

She agreed that the back/front format on this document was the same as the one shown to her by Bogenschutz.

Noland said that often when they started meetings there were changes to the agenda.

Bogenschutz came back and asked about Maus’ document and asked her if Maus had made a mistake and Noland said “yes” and left the witness stand.

3:10 p.m. –10 minute recess.

3:33 p.m. — Jury came back in.

Defense set up video monitor to show video of part of June ’03 meeting to jury where the vote took place.

Capellini recalled to stand.

Capellini questioned about agenda and his recollections about it. Said they were printed on back to back pages all the time.

He said he has no recollection of seeing this doc until Wed at 5:21pm. Video played.

Video showed items 1-6 quasi-judicial hearing. He is holding agenda in his hand in video. He says it looks similar to agenda in evidence.

As video roles, Capellini is seen looking at 3rd page of agenda, past the agenda item for his project. He had agenda open 1-2 seconds.

Comments are then being made about agenda item #6. No one showed up for the Foot and Ankle Center. A woman came up to talk about a different item and she was told to sit down.

Approved 1-3 per Jerry Ferguson, P&Z Director. Capellini  said he did not focus on what 1-3 were about since they were on Consent Agenda. When on Consent Agenda, titles are not read.

Motion to close and approve (by former City Commissioner Gwyndolen Clarke Reed, whose district includes Natura).

Unanimous. Going on to item #4.

Capellini identified himself in 12-year-old photo. Photo shown to jury.

3:52 p.m. — Maus resumed questions and asked for video again.

Video questions by Maus:

One woman tried to speak out of turn. Capellini denied looking at item #2, his plat. He denied knowing that he was voting on his plat. He said if he had been aware of it, he would not have voted.

She rested.

4:08 p.m. — Bogenschutz resumed … Testimony about traffic problem there that Capellini reported to county and city and said traffic people in city do not do anything about it. The city cannot control county and county even removed signs city put up trying to slow people down.

Bogenschutz rested and Maus asked if item 2 could have been pulled by anyone. Capellini  said Robert’s Rules prevent him from making a motion and Maus rested.

Capellini off the stand.

4:13 p.m. — Bogenschutz rested defense case.

4:18 p.m. —Maus calling deputy clerk from Deerfield Beach. Bogenschutz objected and jury brought back. Samantha Gillyard called by Maus. She will be final witness in trial. Employed since 2006, she was asked if records kept in the course of the city’s business and Maus moved exhibit into evidence.

Bogenschutz asked whether this is the way it’s kept today. She agreed that the agenda are copied on both sides. She said she gave the state a pdf version of the agenda, which is one sided.

Document admitted and Maus rested.

4:19 p.m. — Jury excused for 30 minutes for final motions.

4:35 p.m. —Court resumed.  Bogenschutz made second motion for a directed verdict. Judge trying to ascertain what Capellini’s “corrupt intent” was. Bogenschutz pointed out that 19 years before the hearing the city had ceded all traffic matters to the county and Capellini’s reference of that was not an attempt to evade involvement in that project. He argued that the state had failed to prove their case and that there was neither direct or circumstantial evidence presented by the state to prove their case.

Extended legal arguments were made on both sides. Bogenschutz argued there was no direct evidence of guilt and the circumstantial evidence was open to different interpretations.

Judge asked Maus what evidence they have of corrupt intent?  Bogenschutz asked rhetorically “what’s illegal?”

5:14 p.m. — Bogenschutz rested his argument.

5:15 p.m. — Maus commenced her argument against the motion for a directed verdict, cited cases to support her argument. She claims there is an issue for the case to go to the jury.

Maus argues that Capellini’s cutting off of Mrs. Heimowitz’s complaints about traffic are evidence of his corrupt intent. Capellini said he cut her off because traffic issues are for the County not the City.

Judge still struggling with where is the corrupt intent.

5:35 p.m. — Bogenschutz resumed briefly, argued the court is duty bound to order directed verdict.

Judge granted motion for directed verdict. Judge ruled there is absolutely no evidence of corrupt intent. As for keeping lady quiet perfectly consistent with what he said about traffic matters belonging to county, no evidence of deal between him and other parties to contract. They acknowledged they got no benefits and in fact were hurt by it.

It was an ethical violation, not a crime, saying, ‘that’s my ruling and that’s the end of it.’



-Al Capellini is a former Deerfield Beach mayor.

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