Sun Sentinel Palm Beach Edition
Man wrongfully jailed for 8 months settles case for $150,000
FORT LAUDERDALE — Police were sure they had their man, right down to the plaid shorts that matched a description they received of an armed burglar.
Because of their certainty, 26-year-old Dmitry Lyubimov spent more than eight months in jail without bond, unable to convince officials of his innocence despite a lack of physical evidence against him.
City commissioners on Wednesday approved paying Lyubimov, a Russian native who had been living in the city, $150,000 to settle his wrongful arrest lawsuit.
Two people who encountered the armed burglar that day in July 2011 told police they could not identify Lyubimov as the man they saw — information that never made it into any of the police reports of the incident.
The fingerprints from the burglar’s getaway scooter, processed within days of the arrest, did not match Lyubimov’s.
Police waited seven months to do a DNA analysis on a ballcap the suspect dropped during his getaway. The analysis pointed to another person — who had been arrested on similar charges in another city — with the fingerprints matching as well.
What police did have was the eyewitness identification by two officers who had brief looks at the alleged burglar — who was wearing a ballcap and sunglasses when at least one of them saw him — as he eluded them on the scooter. Despite evidence to the contrary, they maintain they did not make a mistake.
“It’s their self-assuredness and their refusal to believe that they could be wrong that failed them,” said attorney Hugh Koerner, representing Lyubimov. “They have a responsibility not just to apprehend criminals, but to protect the innocent.”
Koerner filed suit against the city, detectives Thomas Capano and Sean Reddish, who interrogated Lyubimov, and Officer Jesus Gonzalez, who arrested and identified him.
“I think this is a terrible tragedy that was perpetrated on this individual,” said Vice Mayor Dean Trantalis, who questioned whether the responsible officers
should still be on the city’s payroll. Lyubimov spent so much time in jail “because of their incomplete investigation and their refusal to recognize basic facts,” Trantalis said.
Commissioner Bruce Roberts said the police weren’t the only ones responsible for this “serious error,” but also prosecutors who charged him and let him stay in jail when there was evidence he wasn’t the guilty party. “I think some other aspects of the criminal justice system failed rather badly here, too,” Roberts said.
The events began when a resident on Northeast 64th Street called 911 after spotting a man carrying a gun on his property. The suspect fled on a motor scooter, which was later determined to have been stolen from Miami.
The armed burglar eluded officers twice, once getting by Gonzalez and the second time by officer Felicia Barnwell. He tossed his gun away before getting past Barnwell. He then ditched the scooter and hopped a fence, coming into contact and tussling with another neighbor who had been mowing his lawn.
After the tussle, the suspect grabbed the wrong ballcap, leaving DNA evidence behind.
Officials say the DNA and fingerprints matched those of Justin White, who was arrested by Lighthouse Point police in December 2011 on charges of armed burglary, possession of stolen property and car theft. He was caught after the city’s surveillance video spotted the plates of a stolen Miami truck he was driving.
White, eight years older than Lyubimov, was sentenced in June 2012 as a career criminal to 20 years in prison. However, he has not been charged in the Fort Lauderdale incident.
While in jail, Lyubimov contacted his lawyers at the time with information that might be of help, such as a 25-minute phone conversation with his girlfriend that occurred at the same time as the pursuit.
“So with cops still chasing me I am dialing my girlfriend and talking to her for 25 min instead of thinking how to escape police. It don’t make no sense,” Lyubimov wrote in September 2011.
“I am just frustrated with all this. It all is like a bad dream or [something]. OK, hopefully it will end soon,” he wrote.
Lyubimov had been in the country for three years, spending time in Chicago and New Jersey before coming to Florida about six months before his arrest.
Koerner said police never bothered to check out Lyubimov’s side of the story.
It sounded to police like all of the pieces were fitting together when they asked Lyubimov what he was doing that day. He told them he was waiting for a bus to pick up a new scooter he was getting. But Lyubimov also told them he had never been on a scooter before and was getting one as an inexpensive way to get around.
One of the victims exchanged words with the burglar, but police never inquired about that exchange. They would have learned that the burglar spoke English without Lyubimov’s heavy Russian accent, according to the lawsuit.
Barnwell stuck by her identification of Lyubimov as the person she saw fleeing on the scooter, despite looking “very different” from White, according to Assistant State Attorney Michael Hosford’s memo dropping the charges against Lyubimov.
“Mr. White has a wider, more aggressive face and neck, with squarer, more defined features. Mr. Lyubimov has a much youngerlooking face,” Hosford wrote.
Despite the continuing police ID of Lyubimov, Hosford said that given the DNA and fingerprint evidence, they “would likely create a reasonable doubt in the mind of the jury.”