Torres: Prosecutor admits presenting false testimony but denies breaking the rules

After months of depositions and investigation, the Florida Bar is moving ahead with formal disciplinary charges against Assistant State Attorney Bryon Aven for fraud, deceit, misrepresentation and conduct that is prejudicial to the administration of justice.

Aven faces suspension or possible disbarment among other court remedies for committing prosecutorial misconduct in April 2022 that resulted in a mistrial.

But here's what's most stunning: the State Attorney's Office continues to employ and defend Aven, who lied and cheated during a battery trial.

If the State Attorney's Office is OK with this behavior, it makes one wonder what they would do to secure a murder conviction. After all, while the same people were not involved, this is the same office that back in the 1980s sent Juan Ramos and William Dillon to prison for years on murder charges and Wilton Dedge for rape. All three charges later turned out to be false and the three men were eventually freed.

"I've been here since '85 and I can't think of one prosecutor being sanctioned while still working as a prosecutor," said Melbourne attorney Doug Beam, who has defended attorneys facing charges from the Florida Bar and who regularly handles ethics cases. "This is a very serious matter."

And while everyone should be allowed due process, Aven's continued employment is somewhat of a head-scratcher when you take into account the fact that the Florida Bar reprimanded him in 2021 a few months before he was let go from the State Attorney's office in the 5th Judicial Circuit for his handling of cases and absenteeism. Florida's Fifth Judicial Circuit serves Citrus, Hernando, Lake, Marion and Sumter Counties.

Beam, who just returned to Brevard from Nashville, where he gave a speech about ethics and the law, said the judge handling the disciplinary charge against Aven (known as a referee in this scenario) will certainly consider Aven's history.

"This is not good for him," Beam said. "If I were a betting man, and I'm not, this is going to be tough for him. I'd be surprised if he didn't get suspended."

Aven did not respond to requests for comment sent to his personal email, work email and through a spokesman for the State Attorney's Office.

Immediately after Judge Steven Henderson dismissed the battery case in April 2022, when it was discovered Aven lied about evidence and elicited false testimony from witnesses, State Attorney Phil Archer's office removed Aven from a courtroom role. But Aven continues to make essential charging decisions for the State Attorney's office working in the intake division. He decides what cases go forward for prosecution that occur in the Titusville area with the Titusville Police Department and the Brevard County Sheriff's Office.

Last month, Aven responded to the Florida Bar and admitted to bringing up false testimony, bolstering that testimony and intentionally eliciting false testimony during the trial last year that ended with the defendant going free. Yet, somehow in the same response to the complaint brought against him, he denies breaking the rules that regulate the Florida Bar having to do with truth and honor, not making false statements or correcting false statements among numerous other tenets.

That the Florida Bar is actively bringing charges against a prosecutor is extraordinary in itself. The fact that Archer is keeping him employed and chose Aven over another prosecutor Chris Cusmano, who had called out his colleague's misconduct, brings the ridiculousness of the situation to new levels.

Cusmano was assisting Aven in the battery case, serving as second-chair, when it was revealed that Aven knowingly presented false information that contradicted a surveillance video he admitted into evidence but refused to "publish," meaning show it to the jury. The judge ordered the video to be played without the jury present then held a hearing for a motion to mistrial.

More from Torres: Torres: DeSantis misses mark on new death penalty laws | Opinion

Torres: Should someone barred from working for school district be on school board?

That battery case involved defendant Robert Cason, a cab driver, who got into an altercation with several passengers he drove from Grill's restaurant to the Cheaters strip club. After arriving at the club, Cason said he noticed a piece of plastic on the back of his van had been broken off and beer was spilled on the seat. When he tried to charge the group a $100 cleaning fee, a fight started. According to police and witness testimony, one of the passengers was cut by a broken beer bottle and another bottle was smashed over someone's head.

Carson was charged with two counts of felony aggravated battery with a deadly weapon (broken beer bottle) and two counts of misdemeanor battery.

The state presented several witnesses, who were transported in Cason's cab. They testified that no one brought alcohol or drinks into the cab and accused Cason of trying to strongarm the group. The witnesses parroted one another, saying Grills did not allow anyone to leave with alcohol.

The problem is that Aven, the prosecutor, had surveillance video of the group leaving Grills and entering the cab. And the video showed something different. Two bottles and one cup were clearly seen on the video being carried by passengers as they entered Cason's van.

During the mistrial hearing, Aven took the stand and denied any wrongdoing and refused to concede there was false testimony. It was only after Cusmano told the State Attorney Office's Division Chief Bill Respess and Aven that his own testimony was going to be different that Aven went back on the stand and admitted wrongdoing.

"I got into this profession wanting to wear the white hat, wanting to not only represent the victim, but also wanting to make sure that justice is done" Aven said during his deposition with the Florida Bar. "Never would I want to mislead a jury."

But that's what seemed to happen.

Cusmano later resigned from his position as a prosecutor after Archer allowed Aven to continue working in the office. Cusmano, who called Aven's actions "intentional" and a "travesty,"  is a major and judge advocate (JAG) in the Florida National Guard. Before that he was an active duty JAG for six and a half years, then was in the Army Reserve for about five years before recently joining the National Guard.

In a deposition taken by the Florida Bar for its case against Aven, Cusmano expressed disgust with Aven for insinuating Cusmano was aware of the deception at the trial.

"That is professionally, the most offensive thing anyone's suggested about me ever, that I would be okay with what happened here," he said. "I believe it was a travesty what occurred. I do think it was intentional."

It's important to note that when Aven was previously reprimanded by the Florida Bar, the order contained two dissenting opinions. Justices Charles Canady and Jorge Labarga both wrote that Aven deserved more than just a reprimand.

Aven continued working as a prosecutor after the complaint against him was made but other issues related to his handling of cases and absenteeism became an issue, leading to him resigning his seat in the 5th Circuit in lieu of termination, according to Assistant State Attorney Walter Forgie of the 5th Circuit, who said the parting of ways was for "a pattern of behavior that fell short of the expectations.”

Two days before Aven resigned from his job in the 5th Circuit, a case he was prosecuting ended in a mistrial after he played a 911 call to a jury that included statements the judge previously said would not be allowed.

Archer, through a spokesman, declined to comment for this story.

Archer's office issued a statement shortly after the mistrial which read in part: "Prosecutors have a responsibility to professionally perform their duties with honesty, integrity, and within the rules of criminal procedure. By taking the oath of office, assistant state attorneys are expected to faithfully represent the values of this office before the Court."

Now Aven does offer a defense of his actions in the battery trial. During the mistrial hearing, Aven initially claimed that he planned to show or 'publish" the video to the jury during his second closing argument, meaning the defense would not be able to say anything about it. I don't buy it. Cusmano said the video destroys the state's case and when Judge Henderson showed the jury the video ― after the mistrial had been declared ― they were shocked, according to documents pertaining to the Florida Bar action against Aven.

"The allegiance of the prosecutor's office is not solely to the victim," Beam said. "They don't represent one person (during a trial), they represent society. When I was a prosecutor, I always felt that we should be held to the highest standard."

I'm sure we all certainly hope that is the case.

Contact Torres at jtorres@floridatoday.com. You can follow him on Twitter @johnalbertorres or on Facebook at facebook.com/FTjohntorres.

Support local journalism and become a subscriber. Visit floridatoday.com/subscribe

This article originally appeared on Florida Today: Florida Bar moving ahead with formal charges against Brevard prosecutor