Prosecutor drops charges against former FMPD captain accused of perjury, prostitution

Melissa Montoya
 
| Fort Myers News-Press

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Video: Five things to know about Jay Rodriguez’s case

Jay Rodriguez is a Fort Myers police captain that has been on paid leave since February 2019. Here are five things to know about the case.

The case against a former Fort Myers police captain involved in a questionable prostitution sting has been dropped. 

Court records show charges against Jay Rodriguez were dismissed last week after his attorneys questioned the legitimacy of a video that allegedly showed the officer engaging in sexual contact during the 2013 undercover sting. 

During that operation, Rodriguez went undercover at a massage parlor on Boy Scout Drive. The owner of the business was arrested and charged with living off earnings of prostitution and driving without a license. The woman who appeared in the video was arrested for soliciting prostitution. Her record was later expunged. 

Previously: Fort Myers police captain under investigation for alleged sex act during prostitution sting

The video, which was not part of the official case record, was made public six years later when it was turned over to The News-Press and city officials who had repeatedly denied its existence.

Rodriguez, a 20-year veteran of the force, was placed on paid administrative leave in February 2019 and an investigation was launched by the Florida Department of Law Enforcement. He retired from the department on Sept. 9 of that year. A day later he was charged with official misconduct, perjury and prostitution. 

The case was assigned to the 12th Judicial Circuit in Sarasota to avoid any potential conflicts of interest in the 20th Judicial District in Fort Myers because Rodriguez donated money to State Attorney Amira Fox’s election campaign.

Last month, Rodriguez’s attorneys filed a motion seeking to have the video thrown out because it could have been tampered with. 

A hearing had been scheduled for Thursday, but in court documents filed on Oct. 9, Rodriguez’s attorneys said they “believe they can have a resolution to present” prior to the hearing.

The 12th Judicial Circuit declined to comment but released a three-page memo Tuesday outlining the reasons for the case being dropped. In it, the prosecution said it could not corroborate the existence of the video and investigators were no longer able to reach the woman who appeared in the video. 

More coverage: Retired Fort Myers police Capt. Jay Rodriguez charged with soliciting prostitution, perjury

The memo also indicates that the state needed to introduce three “critical evidentiary items,” to prove the elements of the crime: the video, Rodriguez’s statements to an internal affairs investigator stating he “did not have sex with a prostitute,” and the probable cause affidavit from when the prostitution sting occurred. 

In order to avoid issues with two-party consent, the state also had to prove that the video was recorded during “a sanctioned law enforcement operation,” according to the memo.

However, none of the officers involved in the sting admitted they knew about the tape’s existence. 

“The operational plan for the event did not state whether video would be used,” according to the memo. “Lt. (Rebecca) Prince of FMPD was in charge of the operation, and she denied any knowledge that a video was used. Interviews of other officers involved in the operation revealed that the officers wanted to have audio during the operation, but the audio was not working.”

Sex, lies and videotape: Why the Special Investigations Group of the Fort Myers Police Department was reorganized

The state attempted to find the original video, rather than have to introduce the version that was published online and provided to media, the memo states. 

But the server where the video was located was in an office that had been abandoned after Hurricane Irma, according to the memo. A forensic examination of the hard drive did not reveal any metadata of who or when the video was downloaded. FDLE agents also attempted to use the financial log used to track the funds for the operation, but the “binder was laying open with the specific pages for this timeframe missing; thereby thwarting any corroborating evidence of the defendant’s involvement,” the memo states. 

Prior to the start of the pandemic, FDLE was able to contact the woman who appeared in the video, but after the pandemic began they lost track of her, the memo states.

The only evidence of the video being on the server is from then-acting Sgt. Donald Weathers. Weathers downloaded the video “for personal reasons” and was the officer who six years later turned it over to O’Neil Kerr, according to the memo. Kerr, a former officer who was terminated due to a work-related injury, is the one who turned it over to city officials and the media.

Larry Justham, one of the attorneys representing Rodriguez, told The News-Press on Monday the state’s case began to fall apart after taking depositions from the state’s key witnesses. 

More: Edited video shows encounter between Fort Myers police officer and woman at massage parlor

Rodriguez’s attorneys called into question the testimony of Weathers, a former Fort Myers police officer who was fired in 2017 for not disclosing information in a separate case about a sexual act between a confidential informant and an alleged drug dealer. Weathers, who was not part of the prostitution sting, went on to become a top officer at the Hendry County Sheriff’s Office, but he was placed on the state’s Brady List, a list of officers not allowed to testify in court because they are deemed not trustworthy. 

“After filing the charge, the State discovered that Don Weathers was effectively forbidden from testifying in a law enforcement capacity,” the memo states. 

Related: Fort Myers police captain faced with prostitution, perjury charges will retire

Without Weathers, the state needed to find the woman in the video in order to corroborate the video was authentic, the memo states. 

“After several attempts, FDLE was unable to find and produce the employee of the massage parlor who performed the sex act,” according to the memo. “This employee was last reported to be out of the State. Without this witness, the State would not be able to introduce the video.”

To this day, “the origins of the video are still unknown,” Justham said.

“One of the issues was that the video was made during a law enforcement undercover operation except the head of the operation and all of the other officers that were involved were not involved in the making of the video,” Justham said. 

Justham said the video didn’t have any metadata and the clip that was released to the public was part of a longer recording. The forensic examination showed that the data recording began at 4:52 p.m. yet the version in the possession of the State by timestamp begins at 5:38, court records show.

“The whole thing just had a real bad taste to it and we were able to bring that to light,” Justham said. 

FMPD sex tape case: Jay Rodriguez’s attorneys question tape’s veracity

The Fort Myers Police Department declined to comment because there is still an open internal affairs investigation, spokeswoman Officer Kristin Capuzzi said. The internal affairs investigation where Rodriguez said he had never had sex with a prostitute was put on hold while the criminal case proceeded, which is common practice, Capuzzi said.

Now that the criminal investigation has ended, the internal affairs investigation will resume, Capuzzi said. 

The prosecutor’s memo did state that “at least one witness testified that it was the  ‘practice’ of FMPD to exceed policy in prostitution cases because prostitutes were aware that police could not engage in sexual conduct.”

“Thus, in the opinion of the witness, officers could expose their genitals and engage in sexual conduct during an operation. To be clear, this opinion is not the opinion of the State Attorney’s Office.”

Questions to the Police Department about any changes to policy went unanswered on Tuesday.

“Unfortunately, we cannot make any comments concerning this situation as it is all part of an ongoing internal investigation,” said Fort Myers Deputy Chief Jeffrey Meyers.  

In a text message to The News-Press, Rodriguez said he is grateful for the love and support he has received from his family, friends and the public.

“I can’t thank my legal team enough for the amazing job they did defending this case,” Rodriguez said. “I’m happy it’s over and I have moved on with my life.” 

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