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Jim Kenyon: Falsely Accused Windsor Grandfather Wins Malicious Prosecution Claim

  • Valley News columnist Jim Kenyon in West Lebanon, N.H., on September 15, 2016. (Valley News - Geoff Hansen) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.


Saturday, November 26, 2016

A “miscarriage of justice” is what former Windsor County State’s Attorney Bobby Sand called the criminal case against Ernie Simuro when testifying in U.S. District Court in Burlington recently.

Sand, who left his elected position in 2013 after 15 years on the job, deserves high marks for candor. It’s not often that prosecutors, even after they’ve left office, are so blunt in acknowledging mistakes made under their watch.

In October 2010, former Windsor Police Sgt. Linda Shedd arrested Simuro for allegedly sexually assaulting his 7-year-old learning disabled grandson.

Nine months later, the felony charges were dismissed. Evidence that Simuro, a Vietnam War veteran with no criminal history, had done anything wrong was lacking from the beginning.

As I’ve written a couple of times in the last year or so, Simuro asserted in a federal lawsuit that Shedd had violated his civil rights by initiating his false arrest and malicious prosecution.

On Monday, the two-week trial in Burlington ended with the jury rejecting four of Simuro’s five claims, including the false arrest. The seven-member jury, however, awarded him $200,000 on the malicious prosecution claim.

But it’s up to U.S. District Court Judge William Sessions III, who presided over the trial, to determine whether Simuro is entitled to any of the money.

How Sessions will rule is anyone’s guess. The nine-page “verdict form” that the jury turned in after eight hours of deliberation over two days was filled with mixed messages.

In several places, the jury stated that Simuro deserved to be compensated. In other places, the jury indicated that Shedd, who was the Windsor Police Department’s designated officer for reports of sexual abuse, had acted “objectively reasonable” during her investigation.

“It is our position that the award will be set aside,” Shedd’s attorney, Kaveh Shahi, of Rutland, wrote me in an email.

Shahi also said he’ll argue that Simuro’s out-of-court settlement with the state more than covers what the jury intended for him. The Vermont Department for Children and Families paid Simuro a $400,000 settlement for its role in the case.

Norwich attorney Wayne Young, who has represented Simuro since shortly after his arrest, said, “we expect both the verdict and the award on the malicious prosecution count will stand.”

Any damages, plus Simuro’s attorney fees, would be paid out through a self-insurance fund set up by the Vermont League of Cities and Towns, which also is covering Shedd’s legal fees.

Since Simuro was asking for up to $3 million in damages for him and his grandson, it may appear that he didn’t fare well.

On the contrary.

Just getting the case before a jury was a victory. Police officers are protected by “qualified immunity,” which makes them virtually immune to civil lawsuits.

Many cases involving cops are tossed out before ever reaching trial. By allowing the case to be heard, Sessions gave the public a rare glimpse into law enforcement’s inner workings.

Shedd’s investigation lasted about a day, starting when she was contacted by a DCF social worker who had just seen a “bathtub video” taken two years earlier by Deb Pitts, Simuro’s daughter and the boy’s mother. In the video, Pitts tries unsuccessfully to get her then-5-year-old son to say that his grandfather had sexually abused him.

Shedd didn’t watch the 45-second video until long after she had arrested Simuro. Nor did it apparently matter to her much that Pitts had a history of heroin addiction and lying to police.

During her interrogation of Simuro at the Windsor police station, Shedd informed him that his grandson had made “very serious” allegations against him, including that “you have been molesting him.”

In fact, the opposite was true. The boy, who was not identified by name in court documents, repeatedly stated that his grandfather had never touched him inappropriately.

I’m not sure why a democratic society puts up with it, but U.S. law allows police to lie blatantly to suspects. Often, the end doesn’t justify the means.

Throughout the questioning, which was videotaped, Simuro maintained that he had done nothing wrong. After about an hour, Shedd booked Simuro for sexual assault and lewd conduct with a child. He was fingerprinted, photographed and handcuffed to a railing in the police station.

Shedd then wrote an affidavit that “misrepresented” what Simuro and his grandson had said in their interviews, Young told the jury. “She withheld information from prosecutors,” he said.

Shedd, who left Windsor in 2012 and is now a police officer in Wilmington, Vt., declined to talk with me as she left the courtroom following closing arguments.

This was a case of an officer “doing the best job she can,” Shahi told the jury. “She was trying to protect the child.”

In an email, Sand told me that he wasn’t singling out Shedd in his “miscarriage of justice” testimony. He was talking about how the case was handled as a whole.

I guess Simuro, who recently turned 73, should be happy that he’s not spending the rest of his life in prison. He’s also been reunited with his grandson whom he raised nearly since birth with his wife, who died of cancer in 2007. After the charges were dismissed, Simuro was allowed to adopt his grandson, now 13.

But how does someone overcome being falsely accused of such a monstrous crime?

“In the Google age, that claim is never going to leave him,” said Richard Steingard, a civil rights attorney from Los Angeles who helped Young with the case.

Even when a miscarriage of justice is acknowledged, it’s not enough. Once the handcuffs were slapped on, Simuro’s life changed forever.

Nothing the jury might have decided would change that.