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Jim Kenyon: Grandfather Gets Day in Court After False Charges

  • 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.


Sunday, November 06, 2016

Ernie Simuro never should have been arrested. In October 2010, a Windsor police officer accused him of sexually abusing his learning-disabled grandson without any credible evidence.

The charges eventually were dropped, but it still cost Simuro his reputation, a large chunk of his retirement savings and, for a while, his freedom.

Should Simuro, who turns 73 this week, be compensated for his ordeal?

That’s what a jury will decide when Simuro’s federal lawsuit against former Windsor Police Sgt. Linda Shedd goes to trial, starting Tuesday at the U.S. District Courthouse in Burlington.

This spring, U.S. District Court Judge William Sessions dismissed the town of Windsor from the case, but agreed with Simuro’s lawyers that he still deserved his day in court. Simuro asserts that Shedd violated his civil rights by initiating his false arrest and malicious prosecution.

Former Windsor County State’s Attorney Bobby Sand, who now teaches at Vermont Law School, and current State’s Attorney David Cahill, a deputy of Sand’s at the time of Simuro’s arrest, are among the witnesses expected to testify at the two-week trial.

I wrote about Simuro’s case last September, after he and his grandson reached a $400,000 out-of-court settlement with the Vermont Department for Children and Families, which had tag-teamed with Windsor police on the investigation that led to his arrest.

Simuro and his wife, Laureen, had raised their grandson, who is not identified by name in court records, almost from birth as their daughter battled heroin addiction and run-ins with the law. In 2007, Laureen succumbed to cancer, leaving Simuro as his grandson’s primary caregiver.

The relationship between Simuro and his daughter, Debra Pitts, was a rocky one. In an apparent attempt to wrestle custody away from Simuro, Pitts recorded a video of her son while he took a bath in 2008. In the 45-second “bathtub video,” as it’s called in court records, Pitts tries to get her son, who was 5 years old at the time, to say that his grandfather had sexually abused him.

Two years later, Pitts, who was still battling substance abuse, showed the video to her DCF social worker, Erin Keefe, who then contacted Shedd. Shedd, who joined the Windsor Police Department in 2006, was the town’s designated police officer for reports of sexual abuse.

Without having seen the video, Shedd opened her investigation the following day. Shedd and Keefe conducted back-to-back videotaped interviews that afternoon with the boy who repeatedly told them that his grandfather had never touched him inappropriately.

That evening, Simuro was summoned to the Windsor police station for questioning. In the hour-long interrogation, Shedd informed Simuro that his 7-year-old grandson, during an interview a few hours earlier, had made “very serious” allegations against him, including that “you have been molesting him.”

Attempting to unnerve Simuro, Shedd was taking full advantage of the law that allows cops to lie to suspects.

At the end of the interview, Shedd informed Simuro that she was booking him for sexual assault and lewd conduct with a child.

Shedd then wrote in a sworn affidavit that she had found “probable cause” to make the arrest.

On the night of his arrest, Simuro moved into a motel and later an apartment where he remained until the charges were dropped. This allowed his grandson to stay in the house he had grown up in with Simuro’s adult son.

In the spring of 2011, Norwich attorney Wayne Young, who has represented Simuro since shortly after his arrest, requested that DCF bring in an independent investigator to go over the case.

That was the turning point.

The reviewer determined the “bathtub video” was insufficient to incriminate Simuro and the boy’s interviews with DCF and police “provided no indication of abuse.”

It also spurred Sand to look more closely at the case, which had been assigned to Martha Neary, one of his deputies.

Shedd quickly found herself on the hot seat for her handling of the case. In an exchange of emails with prosecutors, she wrote, “Please keep in mind that I have always been truthful and forthcoming (to a fault) and that I am only human. Everybody makes mistakes.”

Sand seemed unimpressed. Shedd “continues to fail to see the significance of charging a citizen with a sex crime in a matter for which there was no probable cause,” he wrote in an email to officials involved in the matter.

In court documents, Shedd argues that she was used as a scapegoat in the case — “a convenient excuse to deflect criticism from Sand and his career ambitions.”

Nine months after Simuro’s arrest, Young asked a Superior Court judge to dismiss the child molestation charges. Prosecutors didn’t object.

By that time, however, Simuro had spent three days in jail, used $50,000 of his retirement savings to pay a bail bondsman’s fee and racked up sizable legal fees. He’d also been forbidden from seeing his grandson.

“It was an emotional double whammy,” said Young, who is working with two attorneys from Los Angeles, where he previously practiced. “He faced the real possibility of having to spend the rest of his life in prison, and he also had the stress of not knowing who was going to take care of his grandson, if he was found guilty.”

I understand that when a child potentially is in harm’s way that police and social workers must respond sooner rather than later.

In this case, it would have been reasonable for DCF to have the boy removed from Simuro’s care as soon as the allegation against him came to light. With the boy in a safe environment, a thorough police investigation into the allegation could have been undertaken.

But to arrest Simuro after conducting only a short and superficial investigation amounts to a reckless rush to judgment with everlasting consequences.

In allowing Simuro’s case against Shedd to come to trial, Sessions wrote, “There was no physical evidence of sexual abuse, there were no other witnesses, and Shedd did not conduct any additional interviews with (the boy’s) doctors, therapists, teachers, or family members.

“As a result, Simuro was separated from his grandson for more than a year. He also faced significant jail sentences and a lifetime of social stigma.”

Sessions determined that a “reasonable jury could find that Shedd intentionally omitted and misstated facts in her probable cause affidavit.”

Last week, I tried to reach Shedd through her attorney, Kaveh Shahi, of Rutland. I didn’t hear back.

Court documents filed by Shahi shed some light on Shedd’s defense. In preparing her probable cause affidavit, Shedd relied on a DCF report about the “bathtub video.” Wrote Shahi, “The police are permitted to use reliable sources for a probable cause affidavit which include social services personnel.”

Before arresting Simuro, Shedd called Cahill at the prosecutor’s office to let him know what she was planning. “A police officer who provides the prosecutor with all the material information within her knowledge, cannot be held liable for malicious prosecution,” Shahi argued in court documents.

Windsor Town Manager Tom Marsh told me that the lawsuit “will not put tax dollars at risk.” The town’s legal expenses and potential damage awards are covered by liability insurance obtained through the Vermont League of Cities and Towns. Shedd, who left the Windsor police force in July 2012, is covered under the policy, Marsh said.

The lawsuit doesn’t specify how much Simuro is seeking in damages. In any case, the public has a far more serious stake than the financial consequences.

The case is a reminder of the immense power that police hold in our society. After all, the legal system depends on police playing fair.

Affidavits that police put together to justify a criminal charge are supposed to include “all the relevant facts,” said Jessica West, a Vermont Law School professor who is an expert in criminal procedure.

The system “falls apart, if a police officer lies or misrepresents the facts,” added West, who is a visiting professor at the University of Washington’s law school this fall.

When police abuse their power, the damage to an individual can be permanent, particularly in the internet age. When I Googled Simuro’s name, for example, the first thing to pop up was a newspaper story about his arrest.

In a matter of days, through no fault of his own, Simuro’s life was turned upside down. Even after the charges were dropped and custody of his grandson was restored, Simuro had to accept that his life, and his grandson’s, was never going to be the same.

“In my mind, there’s no worse crime than abusing a child,” he said when we talked on the phone Friday. “Having people think I was this terrible person who abused a child was really hard. Even after the charges were dropped and I came home, it still felt like people looked at me differently.”

In April 2014, Simuro and his grandson moved to western Connecticut. “Windsor didn’t feel right any more,” he told me last year.

Simuro, a Vietnam War veteran, and his grandson, who is now 13, have gotten a fresh start 200 miles away from the Upper Valley. But in talking with Simuro, I got the feeling that it really doesn’t seem like home. There’s too much traffic and not enough green spaces for his liking.

For the next couple of weeks, Simuro will be back in Vermont. But I’m not sure sitting in a courthouse counts as being home.