Information and Materials on Tracking Dog
To the People of Brevard and Seminole Counties:
In recent weeks, controversy has swirled around an important issue. I have attempted to respond to reporters’ questions, but feel the piecemeal approach is presenting a distorted view of the situation to the public and would like to remedy this with the following information.
During the period of time from 1981 until 1984, when I was a member of the Public Defender’s Office, a dog handler named John Preston became active in several criminal cases in Brevard. In 1983, as the Chief Assistant Public Defender, I unsuccessfully represented a man accused of murder.
His name was Juan Ramos and he was accused of killing Susan Cobb. I attempted at trial to keep prosecutors from using a “scent line-up” performed by one of John Preston’s dogs. I was unsuccessful at trial, but my arguments were used by the state’s appellate public defenders when they sought a new trial. The Florida Supreme Court agreed and a new trial was held. I had been elected State Attorney by that time and a prosecutor from another circuit presented the case and the jury found Mr. Ramos not guilty. The Ramos case law remains valid in Florida today.
In the fall of 1984, Judge Gil Goshorn ordered a controlled man-tracking test of Preston and the dog used in a case preparing for trial before him. The dog did not succeed in the test and John Preston did not testify at trial. Shortly afterwards, Geraldo Rivera aired a segment on ABC-TV’s 20/20 that was highly critical of Preston and the use of his dogs throughout the United States. I took office as the elected State Attorney in January 1985. Neither Preston nor his dogs have been used at trial since then.
In my office, we constantly review cases. There are numerous post-conviction relief motions filed every year. We are notified when an inmate comes before the Parole Commission. We pull the case file and many times speak at the hearings. Shortly after I took office, I directed that Preston’s testimony be reviewed for alleged perjury regarding his qualifications. Additionally, when Wilton Dedge was exonerated in 2004, I directed my staff to identify and review all murder or sexual battery cases prior to Jan. 1, 1996, where a defendant was still in prison. The purpose was to evaluate any cases where limited evidence raised a question of actual guilt. We found one case in Seminole County of concern where subsequent DNA testing has since tied the defendant to the crime. Thus, we felt that the individuals we had been able to identify as still in prison were justly there.
When the media began asking for a “list” of all cases in which Preston was used, we accurately reported that we did not have a list. As was reported in 1984, Preston was used in criminal investigations by a number of law enforcement agencies. Many of those investigations never resulted in an arrest and the records of those investigations have long since been destroyed by the agencies which hired Preston. Even cases that were submitted to the State Attorney’s Office have in many instances been destroyed pursuant to state public records retention law as the cases were fully concluded in the early 1980s.
Despite the fact that I was not State Attorney at the time of these controversial cases, I accept the responsibility of seeing justice served. It is a responsibility I never will abandon. I asked my staff to re-review the cases we can identify as involving John Preston. To do that, we used several sources including the newspaper articles past and present, public records that had been culled at the request of the Innocence Project several years ago, the official Clerk of the Courts records, and state Department of Corrections' records.
My staff and I are currently re-reviewing these cases. To the best of my knowledge, there are four people in prison today who had cases in which Preston and one of his dogs were used. Of those four, Gary Bennett and Frank Berry were convicted during trials where Preston testified; Gary Dirk went to trial but Preston did not testify; Mark Jones entered a guilty plea. We believe Berry, Jones, and Dirk are in fact guilty and that the public is being served and protected by the incarceration of these men. In the Gary Bennett case, attorneys representing him recently indicated they are reviewing the case for potential motions for post-conviction relief. I requested the case be executively assigned to another State Attorney’s Office because I worked on the case as an Assistant Public Defender in 1983. Governor Crist has assigned it to the Orange/Osceola State Attorney’s Office. I will not comment further on Bennett.
I believe this information should be shared with you—the public. I want our citizens to be able to believe in the protection offered them by our criminal justice system. I am proud of my office’s role in the system and want you to be as confident of it as I am.
Below, you will find a memorandum about our current research on the four cases I referenced above. I am also posting the Florida Supreme Court ruling on the Ramos case. I have requested permission from the Florida Today and Orlando Sentinel newspapers to reprint stories from the 1980s on this subject, and, if permission is granted, intend to post those articles also. If you are interested in this topic, please check back. We intend to continue to share the information we have with you. Thank you.
Norman R. Wolfinger
State Attorney Eighteenth Judicial Circuit of Florida
Serving Brevard and Seminole Counties
July 24, 2009
July 24, 2009
Currently Incarcerated
MEMORANDUM
To: State Attorney
From: Beth Rossman
Date: July 13, 2009
Subject: Review of Parole Cases
As your investigator assigned to oversee cases from Brevard and Seminole Counties that are scheduled for consideration by the Florida Parole Commission, you requested that I review cases where defendants were currently in prison for offenses that occurred between 1981 and 1984. Specifically, you requested that I identify and review any cases where John Preston may have testified at trial, or was listed as a potential trial witness. My review confirmed that Gary Bennett and Frank Berry are the only two cases where defendants are currently in prison as the result of a trial where John Preston testified. There are two additional cases where defendants remain in prison (Gary Dirk and Mark Jones) where Preston was listed as a potential witness, but no trial testimony occurred.
As your investigator assigned to oversee cases from Brevard and Seminole Counties that are scheduled for consideration by the Florida Parole Commission, you requested that I review cases where defendants were currently in prison for offenses that occurred between 1981 and 1984. Specifically, you requested that I identify and review any cases where John Preston may have testified at trial, or was listed as a potential trial witness. My review confirmed that Gary Bennett and Frank Berry are the only two cases where defendants are currently in prison as the result of a trial where John Preston testified. There are two additional cases where defendants remain in prison (Gary Dirk and Mark Jones) where Preston was listed as a potential witness, but no trial testimony occurred.
Gary Bennett – Executive Assignment – 9th Judicial Circuit State Attorney’s Office. As you are aware from your representation of Mr. Bennett in the initial defense preparation of the case, the defendant’s fingerprints at the scene of the murder was a central focus of the case.
Frank Berry – On October 27th, 1981 at approximately 1:00 a.m., a 37 year-old female victim was in her Merritt Island apartment, asleep on her living room sofa. She was awakened by Mr. Berry who was holding a kitchen knife to her throat. Mr. Berry sexually assaulted her and threatened the victim that if she called the police, he would come back. The defendant also stole money from the purse. The investigation was completed through a positive identification of Mr. Berry by the victim in a photo line-up. She stated in her affidavit that she had been raped by the same individual several months prior to the stated incident, but she did not report the first sexual assault. The victim’s next door neighbor confronted the defendant twice outside his apartment just prior to the offense and later identified the defendant in a photo line-up. At the time of the incident, Mr. Berry was on parole for burglary and grand theft. The defendant’s taped confession was presented at trial along with John Preston’s testimony. Then Assistant State Attorney Sam Bardwell prosecuted the case, Assistant Public Defender Phyllis Riewe was the defense counsel and Judge Goshorn sentenced the defendant to 124 years prison for burglary and sexual battery. The defendant was also sentenced on a prior sexual battery case that did not involve Preston’s testimony and has a subsequent sentence of 30 years prison for an escape that did not involve Preston’s testimony. In ensuing parole proceedings, Frank Berry admits his guilt in this sexual battery and burglary case where Preston testified.
Gary Dirk – John Preston was listed as a potential witness in case number 84-191-CFA, but did not testify at trial. This case involved the sexual assault of a young mother and school teacher in her Satellite Beach home. At the time of assault, her children lay sleeping in the next room. The Clerk’s file has a document indicating that Assistant State Attorney Michael Hunt and the Assistant Public Defender stipulated to the Court that Preston was not being called as a witness and dog testimony would not be mentioned in the trial. Dirk was also convicted in 3 other cases during the same time period, and is serving a life sentence in one of those cases where he was caught attempting to flee the scene of the burglary and sexual battery. Inmate Dirk was also convicted in a 1994 escape out of Miami-Dade. He was sentenced to 15 years on the escape.
Mark Jones – On April 30th, 1981, the bullet ridden bodies of a 17 year-old female victim and a 19 year-old female victim were found in Port St. John by a resident taking his morning bicycle ride. Both young women were dead along with the 19 year-old’s unborn child - she was 8 months pregnant. The 17 year-old’s body was nude and both women appeared to have been shot multiple times. The Autopsies revealed that the younger victim had suffered 7 gunshot wounds (5 to the head and 2 to the chest), and that the eldest of the two victims sustained 8 gunshot wounds (2 to the head, 5 to the abdomen, and 1 to the buttocks). The medical examiner further reported that the 19 year-old’s unborn baby died due to lack of life support from the mother and a bullet piercing the placenta.
The investigation in this case led to the arrest of Mark Wayne Jones. Mr. Jones admitted to at least 4 people (his boss, two co-workers and a friend) the day after the offense that he had shot and killed both women. His claim of self-defense was quickly invalidated when he admitted to shooting both women and then reloading his firearm and shooting them again. Further evidence revealed that both women were killed execution style due to the gun residue and the positions of the bodies. The murder weapon was retrieved from the river near the 528 bridge.
Mr. Jones pled guilty to two murders and was sentenced to life in prison. John Preston was listed as a potential witness in the case, but did not testify as there was no trial. Throughout his incarceration in the Florida Department of Corrections, Mark Jones continually admits his guilt in parole proceedings and in handwritten letters to the commissioners. He states that there is not a day that goes by that he does not think about the murders he committed.
Case-By-Case Briefs
MEMORANDUM
To: State AttorneyFrom: Beth RossmanDate: July 30, 2009Subj: Case Review
Update___________________________________________________________
You asked that I review the cases listed by Florida Today in articles by Laurin Bracey that were published on July 29, 1984, as well as cases listed in a recent article by John Torres on June 21, 2009. The articles claim that John Preston conducted some type of scent work as part of each case. You also asked that I identify any additional court cases that might be discovered as part of my review where Preston conducted scent work.Please see the following two attachments.
THE FOLLOWING, are cases where a defendant was convicted or acquitted by a jury where John Preston testified as part of the evidence presented at trial:
James Elmen – (listed in both articles) - Elmen was acquitted at trial in 1984. Elmen returned to Jacksonville where he was convicted for a subsequent murder and remains in prison today.
Florida Department of Corrections record
Willie Snipes (not listed in the 1984 article). Co-defendants were James Snowden and Henry Harrell. All defendants made admissions. Preston only testified in the Snipes trial where Snipes was convicted of Manslaughter and Robbery in 1982. Snipes was released from prison in 1986 and died in 2000.
Gary Bennett – (listed in both articles) – Bennett was convicted of First Degree Murder in 1984. Attorneys for Bennett are now reviewing the case for possible post-conviction motion(s). The State Attorney in the 9th Circuit has been appointed to handle any motions that may be filed.
Executive Order assigning Ninth Judicial Circuit
William Dillon – (not listed in the 1984 article) – Dillon was granted a new trial in 2009 and charges were subsequently dismissed by the State.
State Attorney’s Office Announces Charges Dropped
Wilton Dedge – (listed in both articles) – Conviction was set aside in 2004 as the result of Y-Chromosome DNA testing conducted by the State Attorney’s Office that established actual innocence.
“Guest Column” by State Attorney Norman Wolfinger
Juan Ramos – (listed in both articles) – Preston testified at the initial trial in 1983, but was not called as a witness at the re-trial by the Orange/Osceola State Attorney’s Office in 1987. Ramos was acquitted at the re-trial in 1987.
Florida Supreme Court ruling
Frank Berry – (not listed in the 1984 article) – Berry was convicted of Burglary and Sexual Battery in 1982 and is currently serving a 124 year prison sentence. Berry was acquitted in a separate case.
Transcript of interview, Oct. 19, 1981
Florida Department of Corrections Parole Examiners Recommendation
Nick Lennear – (not listed in either article) – Lennear was convicted of Burglary and Battery in 1983 and completed his prison sentence in 1987.
Cecil Platt – (not listed in either article) – Platt was convicted of Trafficking in Cocaine in 1982. Platt subsequently agreed to cooperate with law enforcement and provide substantial assistance - adjudication was withheld and probation was completed.
THE FOLLOWING, are cases where scent work was done by John Preston, but he did not testify at trial; or no arrest was ever made; or a plea was entered:
Gerald Stano – (not listed in the 1984 article). Preston did not testify at trial. A jury convicted Stano of First Degree Murder in 1983.
Gary Dirk – (listed in both articles) – Preston did not testify at trial. A jury convicted Dirk of Burglary and Sexual Battery in 1984.
Elton Kimbrough, Warner Gibbs, Kenneth Burch, and Robert Taylor – (listed in both articles). At the time of the article in 1984, these cases had not been fully resolved. Kimbrough and Burch subsequently went to trial, but John Preston did not testify. After a hung jury, both pled guilty to Burglary with an Assault 1984 and completed their prison sentences in 1988. The cases on Gibbs and Taylor were dismissed by the State.
Affidavit of Gilbert Goshorn
Mark Jones – (listed in both articles) – No trial occurred. Jones pled guilty to two counts of First Degree Murder 1981.
Mark Jones – (listed in both articles) – No trial occurred. Jones pled guilty to two counts of First Degree Murder 1981.
Eugene Wiley – (not listed in the 1984 article). Initial trial resulted in a hung jury. No re-trial occurred. Wiley pled guilty to Second Degree Murder in 1982 and completed his sentence in 2003.
Scott Carroll – (listed in both articles). Carroll is in prison in New York serving a 25 to 50 year sentence for multiple burglaries and rapes. Multiple law enforcement agencies were investigating Carroll for burglaries and rapes in Brevard County when he fled to New York. Carroll has never been arrested on any Brevard case. A case was filed against Carroll in Brevard (87-2065-CFA), which remains open and did not involve John Preston. Preston was used in other cases where Scott Carroll was a suspect, but those cases have long been closed and no arrest was ever made.
New York Department of Corrections record
Christopher Wilder – (listed in both articles). As the 1984 article reports, Wilder was a suspected mass-murderer in other jurisdictions who shot himself to death in New Hampshire. No charges were ever filed in Brevard County. Preston was used in some capacity as part of an investigation into the disappearance of a Brevard victim, but no charges were ever filed and no arrest occurred.
My office has received permission from The Orlando Sentinel and Florida Today to reprint the following articles from 1984 and 1986. My purpose in including them here is to demonstrate that the testimony of John Preston was widely known and examined both inside and outside the courtroom over twenty years ago. Many of the parties involved in challenging and reviewing the issues concerning John Preston at that time include the Public Defender; current and former Assistant Public Defenders; current and former Assistant State Attorneys; members of the private bar; and current and former trial and appellate judges.
These articles were written at a time when the admissibility of scent discrimination evidence was new to the courts of Florida. Remember, the Florida Supreme Court did not resolve this issue until the Ramos case in August 1986, ruling that scent discrimination lineups were not scientifically reliable. Prior to that time, courts in Florida and several other states were allowing such testimony.
These articles were also written at a time when the testimony of John Preston was being presented in the court room. Reporters were attending the trials and hearings and reviewing cases when everything was fresh in everyone’s mind. Those reporters found all the cases they could find, and not surprisingly, it appears that they accurately identified all but one or two cases that can be found today. We will keep you, the public, apprised as we continue our review.
Norm Wolfinger July 31, 2009
Orlando Sentinel Articles
Florida Today Articles
July 29, 1984 Article no. 2
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