And then there was one, the state dismisses charges against defendant Delaila J. Estefano.

When you walk into a court room in the Dade County criminal courthouse just above where the judge sits you'll find a sign that says...

"We who labor here seek only the truth"

When you're sitting there waiting for the court to come to session, you can't help but stare at the sign and ponder what it really means.  Powerful words.  Nowhere in the court room does it say that a prosecutor must secure a conviction by any means necessary.  Nowhere in that courtroom is there any mention of hiding evidence or fabricating witness testimony, yet somehow since October 3, 2008 we've seen everything but a search for "truth" from assistant state attorney Bill Kostrzewski during the course of the Bernardo Barrera mortgage fraud prosecution.

Justice George Sutherland eloquently described the role of a prosecutor in this quote from Berger v. United States...

"[He] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

That's a mighty fine line to walk.  One must consider the incredibly difficult role the prosecutor plays in our legal system, consider this quote from Supreme Court Justice Brennan...

"Between the private life of the citizen and the public glare of criminal accusation stands the prosecutor. That state official has the power to employ the full machinery of the state in scrutinizing any given individual. Even if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life. For this reason, we must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice."

Consider the charging powers the prosecutor wields and the consequences if that power is misused.  With that said, you have to ask how ASA Kostrzewski can possibly reconcile his behavior throughout the Bernardo Barrera mortgage fraud prosecution, his actions since the inception of the case have been misleading, intemperate and undignified. Nearly a year and a half ago ASA Kostrzewski conceded that he knew that the attorney he charged with identity theft, the charge that carried a minimum mandatory sentence of 10 years, had no knowledge or involvement with the alleged identity theft, yet despite his moral and ethical obligations to drop the charge, he chose not to and  instead threatened to pile on more charges against the attorney.  A far more eloquent blogger than I sums up this abuse of prosecutorial power most effectively...

"Trying a defendant that a prosecutor knows is innocent, or even bringing to trial a person that the prosecutor knows there is not sufficient evidence to justify a conviction is an offense so odious to the American system of justice that prosecutors who engage in such abuse should be referred to the bar for disbarment. The supervisors who approve of such conduct should be disbarred as well."

We noted back in February that the State Attorneys Office had removed Prosecutor Kostrzewski from the Barrera mortgage fraud case, while we have our theories as to why this really happened it would be disingenuous of us to speculate in a public forum.  The prosecutor who replaced Mr. Kostrzewski appeared in court on Wednesday and made the following statement:

"May it please the court, good morning your honor, Steve LeClair for the state of Florida.  Judge, based on information that we've acquired during the course of the discovery process, it's become clear that we cannot prove this defendants guilt beyond a reasonable doubt and therefore at this time we will announce a nolle pros as it relates to the three counts in which Ms Estefano is named as it relates only to her."

Think about that for a moment Mr. Kostrzewski.  You know that there's been no new discovery since you were taken off the case.  The prosecutor that replaced Kostrzewski had the same facts before him that Kostrzewski had yet after careful review by ASA LeClair and his supervisors at the state attorneys office they chose to drop the charges.  You didn't get out lawyered, a jury didn't find the defendant not guilty, instead your office concluded that your case was so weak that the they couldn't move forward.  Mr. Kostrzewski, sit back and consider the harm your actions have caused over the last two years, not only to the fellow attorney whose career you destroyed but to the young and inexperienced detective who you manipulated and used to do your bidding, not to mention the cloud of impropriety that you've created around your office and fellow prosecutors.  

With that said, the only remaining defendant from the arrests back in October 3, 2008 is John Arthur Romney, we'll keep tabs on his status in the coming weeks.  More to come on Monday, have a great weekend folks!