Investigator in Hialeah cop beating case wants state sanctioned for withholding evidence

For the past two years the city of Hialeah and state prosecutors have withheld, illegally redacted and in some cases, denied the existence of hundreds of public records requested by a private investigator entangled in the case of two Hialeah cops charged with kidnapping and beating a homeless man, according to a lawsuit and motion for sanctions filed in Miami-Dade.

Ali Amin Saleh and his attorney Stephan Lopez say the city of Hialeah has requested exorbitant fees — in one case well over $1 million — or simply stonewalled requests for correspondence, arrest records, even police body camera video to such an extent that they’ve been forced to file motions with the court to compel the turnover of information.

Lopez also claims Hialeah staff has forwarded almost all of his requests to Shawn Abuhoff, the lead prosecutor from the Miami-Dade State Attorney’s Office who has already secured a conviction of armed kidnapping against former Hialeah cop Rafael Otano, one of the two officers involved in the case.

Abuhoff is also expected to try upcoming cases against Lopez client Saleh, charged with witness tampering in the case, and the other Hialeah cop, Lorenzo Orfila.

The attorney said Hialeah and Abuhoff withheld a request for video of alleged homeless victim Jose Ortega-Gutierrez being detained and transported by police to meet Abuhoff at a Hialeah Police station, for more than a year.

Lopez said he finally received the video in April, just days before the scheduled deposition of the officer who transported the homeless man.

The delay tactics got so bad, Lopez said, that in April he filed a complaint in Miami-Dade Circuit Court seeking sanctions against the state for “systemic discovery and Brady violations,” a bedrock legal principle that allows defendants access to any evidence that could benefit them.

Despite the motion being filed, Lopez has yet to set a calendar date for the complaint to be heard. On Friday, the attorney said he’s delayed the process because he plans to amend the complaint with additional claims.

Concern over whether prosecutor is blocking information

In the past 16 months, Lopez has filed five motions to compel against the Miami-Dade State Attorney’s Office for failing to turn over records. He’s also filed a lawsuit against Hialeah for public records violations. And though the state isn’t named in the lawsuit, the suit alleges that all public records requests are forwarded to Abuhoff before Hialeah responds.

“Shawn withholds evidence, I’ve come to that conclusion,” Lopez said. “The prosecution in this case has controlled the flow of information from the very beginning.”

The city of Hialeah chose not to respond to requests for comment, citing pending litigation. The city has filed a motion to dismiss Saleh’s lawsuit; the city considers it frivolous.

Police informing prosecutors of public records requests on a case during a legal proceeding is common practice. Lopez’s argument that Abuhoff controls how Hialeah responds to those requests, if true, would be unusual. The state chose not to comment on ongoing litigation.

As for the five motions to compel filed by Lopez on his client’s behalf, they all came within four months of Saleh’s arrest and well before his trial, which as of Friday still did not have a set date.

Two of the motions were filed within six weeks of Saleh’s arrest, an unusually short period of time for an attorney to file a complaint with the court about discovery delays.

Complaints rise against the state attorney’s office

Lopez’s complaints against the state are among a growing list that was jump-started last March when Miami-Dade Circuit Court Judge Andrea Wolfson took the unusual step of removing a seasoned prosecutor from one of the state’s most high-profile cases — the re-sentencing of convicted multi-murderer and gang leader Corey Smith.

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Smith, who was convicted of four murders more than two decades ago, and several other convicted murderers, were to be re-sentenced after state lawmakers passed bills that created a pair of changes to the state’s death penalty statute. But Smith’s re-sentencing came to a halt even before his trial began.

The convicted murderer’s attorneys successfully argued that veteran prosecutor Michael Von Zamft went too far in his coaching of potential witnesses. Wolfson was particularly incensed about a jailhouse phone call in which Von Zamft was recorded telling a potential witness and convicted murderer to gather other potential witnesses to get their stories straight.

She ordered Von Zamft removed from the case and also said co-counsel Stephen Mitchell had to go for defending Von Zamft.

In May, defense attorneys again took issue with state prosecutors in another high-profile case. This time, the attorneys for OnlyFans model and suspected murderer Courtney Clenney argued prosecutor Khalil Quinan breached attorney-client privilege in arresting Clenney’s parents on computer hacking charges. They also complained of vindictive prosecution.

Clenney has been jailed the past two years in Miami-Dade, charged with the stabbing death of her boyfriend in their bayside Miami condo.

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Last week, Miami-Dade Circuit Court Judge Laura Shearon Cruz sided with the attorney of Clenney’s parents, Jude Faccidomo, and tossed a slew of evidence obtained in the computer hacking case. It’s unclear how, or if, the state will move forward on the case.

In her order, the judge said prosecutor Quinan “should have stopped reading” when he encountered text messages from attorneys about the case, or could have brought the question to the judge if he thought he was entitled to read them under a legal exception.

“The State of Florida did none of the above,” the judge wrote, “instead taking it entirely upon themselves to unilaterally conclude the exception applied and that the privileged could be breached.”

In another case, involving murder defendant Taji Pearson, an appeals court and the Florida Attorney General’s Office agreed that important evidence might have been withheld by prosecutors. A hearing is set for later this month on the issue; defense attorney Michele Borchew hopes the mistakes will lead to a new trial for Pearson, who received a life sentence in January.

Prosecutors’ star cooperating witness in that case was William “Little Bill” Brown, a multi-murderer who Borchew said was secretly promised a resentencing. The Herald revealed in June the unusual arrangement prosecutors had with Brown, who has been kept in the county jail for a decade and never sent off to state prison. The county jail normally houses inmates who are serving time for less than a year.

Pearson’s case was prosecuted by Von Zamft and Mitchell. Von Zamft is now retired. On Monday, Fernandez Rundle told the Herald that she has replaced Mitchell on the Pearson case.

The cases were among 15 in a so-called “binder of corruption” delivered to the state attorney in May by Lauren Field Krasnoff, president of the Florida Association of Criminal Defense Lawyers’ Miami chapter.

Fernandez Rundle told the Herald on Monday that her top attorneys are reviewing the cases, especially those in which judges agreed mistakes were made by her prosecutors. She’s also creating a committee where defense lawyers and prosecutors can discuss “systemic” issues.

“A lot of what we’re doing is in response to the courts,” Fernandez Rundle said Monday after meeting with Krasnoff and Zena X. Duncan, president-elect of the defense lawyers’ Miami chapter. “ ... We make mistakes. It’s always good to be inward thinking, to be self reflective, to be looking at ourselves. I always see that as opportunities to see how we can best administer justice. That’s what we signed up to do.”

Complaint began with forced removal of homeless man

The most recent complaints of improper conduct by the state in the Saleh case stem from an afternoon a few days before Christmas at a small Hialeah strip mall where Ortega-Gutierrez — a convicted drug dealer who often harassed shopkeepers — had taken up residence. That afternoon in 2022, the owner of Los Tres Conejitos bakery called police when Ortega-Gutierrez began bothering customers and telling them the owner poisoned the food and stole tips.

Prosecutors say when Otano, 28 at the time and Orfila, 23, arrived, the two officers put Ortega-Gutierrez, whom they both knew, in a patrol car and drove him about seven miles away to a remote wooded area outside the city. There, prosecutors say, Ortega-Gutierrez was beaten unconscious and left to fend for himself.

When he awoke and began to wander, he was spotted by an off-duty Miami-Dade police officer, who called police.

About a month later, the state took the unusual path of charging Otano and Orfila with battery and the armed kidnapping and abduction of Ortega-Gutierrez. They were also fired from their jobs.

In August, Otano was found guilty by a jury. Three months later he was sentenced to 5 1/2 years in prison by Judge Wolfson. The former police officer is appealing the case. Orfila hasn’t been tried yet.

Lopez, who helped attorney Michael Pizzi on Otano’s defense team, is also representing Saleh, a former Miami Gardens convenience store owner who the attorney said was investigating Hialeah Police on his own when he got caught up in the Ortega-Gutierrez case. Police arrested him not long after the former officers were taken into custody on witness tampering charges.

They state claims Saleh showed up at the same mall Ortega-Gutierrez had been taken from by the officers and tried to convince him to accept $1,350 in exchange for a signed affidavit saying the cops did no wrong and that he was not battered. Most of the records Lopez has requested are related to Saleh’s case.

In the April lawsuit Saleh filed against the state alleging discovery and Brady violations, Lopez notes that sanctioning the state for misconduct would be a far less serious punishment than the removal of senior staff from Smith’s murder re-sentencing trial.

Lopez, a member of the Florida Association of Criminal Defense Lawyers, chalks the alleged withholding of evidence to a win-at-all-cost attitude of the state and Hialeah. He said the state used the tactic to withhold evidence that helped to convict Otano.

In that case, Judge Wolfson found the state held back information on the faulty patrol vehicle’s GPS system and offered the former officer’s defense team more time to research it.

“Even more egregious is the fact they hid the video [of Ortega-Gutierrez being transported to the police station] from the defense, the court and the jury... The state knew it then and it knows it now, that Ortega was a trespasser at the plaza which gave Orfila and Otano the lawful authority to remove him from the plaza,” Lopez said.