New trial ordered for driver serving 30 years for 2013 crash that killed 5
WEST PALM BEACH – A driver who is serving 30 years in prison for killing five young friends in a horrific 2013 crash is entitled to a new trial, the 4th District Court of Appeal in West Palm Beach ruled in a split decision on Wednesday.
Jabari Kemp, now 27, had testified at trial that he blacked out while exiting Interstate 95 at Blue Heron Boulevard in Riviera Beach and caused the horrific crash.
The impact of the highspeed collision was so powerful that four of the five occupants of the Lexus that Kemp crashed into were ejected. They died from traumatic injuries, including crushed internal organs, broken bones and severed limbs, authorities said.
Killed on April 13, 2013, were the Lexus driver, Jason Mahlung, 21; and passengers Makita Campbell, 14; Shonteria Grimsley and Christina Oliver-Joseph, both 17; and Orane Cummings, 22. The victims were friends from Riviera Beach.
“The gravity of our ruling does not escape us,” Judge Cory Ciklin wrote in the 2-1 decision, as a nod to the grieving and traumatized families of the young victims.
The deadly crash was an “unimaginable nightmare,” Ciklin wrote in a concurring opinion.
Kemp’s 2015 vehicularmanslaughter conviction and his 30-year sentence must be tossed, he wrote, because of a Florida Highway Patrol trooper’s critical but problematic testimony as an expert witness at trial.
Criteria that an expert witness must meet under Florida law has been flip flopping since 2013 when lawmakers approved new stricter standards.
Four years later in 2017, the Supreme Court blocked the move to the new standards. And then, in May, after a shift in the makeup of the state’s high court, the old standard was reinstated.
Wednesday’s majority opinion concluded that the trooper’s testimony did not meet the requirements of the most current standard.
The trooper’s testimony undermined Kemp’s.
Kemp, of Florida City, told jurors that he fainted behind the wheel and wasn’t in control of his sporty Mercedes when he exited the interstate.
To convict under Florida state law, jurors had to believe that Kemp was in control of his car at the time of the crash.
Prosecutors argued Kemp, then 21, drove recklessly at 128 mph and ran a red light at the bottom of the off ramp, and was awake when his car slammed into the eastbound Lexus.
The trooper, Corporal Robert Dooley, an accident investigator who had experience reconstructing hundreds of crashes, testified that there was evidence that Kemp had been braking at the time of impact and therefore couldn’t have been unconscious.
Dooley’s testimony was inadmissible because it could not be proved that it “was based upon legally sufficient facts or data that met the reliability and admissibility requirements” of the expertwitness standard, Ciklin wrote.
“With the trial record that is before us, we have no choice but to hold that the state did not meet its burden in Kemp’s first trial and that a new trial is warranted,” Ciklin said.
Judge Melanie May wrote the dissent.
“Dooley’s testimony was based on physics and momentum, which is scientifically reliable,” she wrote. “It was the jury’s role to decide what weight to give [Dooley’s testimony].”
In conclusion, the ruling majority reiterated its position.
“The expert’s braking opinion was not shown to be based upon sufficient facts or data, was not shown to be the product of reliable principles and methodology and amounted to little more than a subjective and unverifiable opinion,” Judge Carole Taylor wrote. tated people Fierle served, or wards as they are called in court, have expressed surprise about the allegations against her.
Dena Nazarchuk Grantham said Fierle was her brother’s guardian and brought peace of mind and was helpful during a tumultuous time for her family.
“[My brother] kept trying to tell me she wasn’t what she pretended to be,” Nazarchuk Grantham said. “It just blows my mind. She was very kind with me. … I’m hurt.”
The two images of Fierle — one as a person seen by judges, attorneys and some families as a devoted guardian and the other as the person who sits at the center of what could be one of Florida’s most complicated and bizarre elder abuse cases — collided last month at an Orlando hearing in front of Circuit Judge Janet Thorpe.
The judge revoked all DNR orders and advanced directives put in place by Fierle in her Orange County cases as a precaution after the circumstances of Steven Stryker’s death came to light.
“Rebecca Fierle has been a professional guardian for a long time. I rely on our professional guardians tremendously for what they carry,” Thorpe said, adding: “This is an extraordinary hearing that is being held on an expedited basis because of the circumstances we find ourselves in.”
Fierle and her attorney did not respond to requests for comment for this story.
Fierle earned a degree in psychology and a certificate in gerontology from the University of Central Florida in December 1996, just before venturing out to start a business of her own. She left her job at the Senior Resource Alliance in 1997, according to an application she filed in Seminole County court.
By December 2000 she completed the required 40 hours of training required to become a professional guardian and alerted the clerk that she would begin to take on guardianship cases, according to documents in her Orange County guardianship file.
She incorporated Geriatric Management Inc. in 2003 and, in addition to guardianship, the company specialized in helping people qualify for Medicaid benefits to cover nursing home stays and other services, according to the company web site.
No one came to the door when a reporter twice visited Geriatric Management, which is in a small converted house just northeast of downtown Orlando.
Fierle listed more than 500 people for whom she served as guardian, including 168 current cases in 10 counties and one out of state in North Carolina, on an application she filed in Seminole County earlier this year. Exact counts of her caseload vary because the Orange County auditors found her accounting of cases listed in Orange to contain duplicate case numbers and omissions of some cases. An attorney for AdventHealth, who appeared at the July 11 hearing, told Judge Thorpe that Fierle had taken on about 50 former patients at the hospital as wards and that the hospital paid her for her services, according to a transcript of the hearing.
AdventHealth spokesman Bryan Malenius told the Sentinel that the hospital cannot discharge a patient, even after their medical treatment is complete, unless the patient has a safe place to go. And in cases when that person is unable to make decisions for themselves and when no family steps in to help, the hospital recommends guardianship as a last resort.
Typically, the hospital asks the Florida Department of Children and Families to step in, but it often declines, Malenius said. A DCF spokeswoman did not respond to questions from the Sentinel.
And waiting for a public guardian to be appointed can take months, leaving a professional guardian as the most expedient way to move patients from the hospital to a nursing home or other setting.
“Petitioning the court to appoint an emergency guardian is a last resort 100 percent of the time, after the state has declined assistance and extensive efforts to find family members or friends willing to fulfill this role,” Malenius said in an e-mail. “Even after a petition for guardianship has been filed, we continue to search for family or friends willing to serve as guardians.”
Fierle registered a company with the state called Geriatric Management Hospital Consultation in 2018, but it’s unclear if that’s the company she used to bill AdventHealth. Also unclear is whether she had other arrangements with other facilities.
The comptroller’s office found she inadvertently included bills she intended for the hospital in some court files. For example, in one case the auditors found a bill for the hospital where she was charging $120 an hour. That’s higher than the maximum of $65 an hour professional guardians are allowed to charge wards for their services under court rules.
The audit said Fierle should have disclosed her payment arrangement with AdventHealth to the court, but never did.
That same audit also found other questionable transactions, such as Fierle using her wards’ money for services provided by a family member or people she knew.
On July 25, Fierle resigned from all her cases statewide.
Information from the News Service of Florida was included in this report.