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Jim Kenyon: A Fight Worth Fighting

  • 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.


Wednesday, November 29, 2017

In 2010, Windsor police arrested Ernie Simuro on charges of sexually abusing his 7-year-old learning-disabled grandson. If he hadn’t had a retirement savings account that he could tap to hire a first-rate attorney to fight the allegations, Simuro has no doubts about where he’d be today.

“I’d be sitting in jail for the rest of my life,” he told me. “Justice is not blind. Justice is only for those who can afford to pay for it.”

Between paying legal bills and a bail bondsman’s fee, Simuro, a computer programmer, shelled out roughly $50,000. Still it took Norwich attorney Wayne Young nearly a year to get the case dismissed.

“Ernie’s case demonstrates the government’s awesome power to prosecute,” Young said. “Once the government decides to prosecute you, it is a long and expensive battle even if you are innocent.”

Put another way: It’s easier than you might think to end up in Simuro’s shoes.

But seven years after being falsely accused, Simuro, 74, can finally put the case behind him — or at least try. He recently reached a $625,000 settlement in his federal lawsuit against former Windsor Police Sgt. Linda Shedd.

The settlement brings the total that Simuro and his grandson received to more than $1 million, a sum that includes attorneys’ fees. In 2015, they reached a $400,000 out-of-court settlement with the Vermont Department for Children and Families, which assisted in the Windsor police investigation.

Simuro, a Vietnam War veteran with no criminal record, had been his grandson’s primary caregiver since his wife died of cancer in 2007.

As I’ve written before, it would have been perfectly reasonable for authorities to remove the boy (not named in court documents) from Simuro’s care while they conducted a thorough investigation of allegations made by his daughter, Debra Pitts, the boy’s mother. Instead Simuro was arrested a day after police took up the matter. Shedd, who was Windsor’s designated officer for reports of sexual abuse, built her case around Pitts’ uncorroborated allegations.

Pitts was a longtime heroin addict with a criminal record who had battled her parents over custody of her son — pieces of information that Shedd and DCF seemed to ignore. (Pitts is currently incarcerated for the armed robbery of a pizza delivery driver in Claremont.)

Bobby Sand, the Windsor County state’s attorney at the time, eventually allowed the case to be dismissed over concerns that Shedd had mischaracterized information in her probable cause affidavit. But not before Simuro had suffered irreparable damage. His arrest was front-page news. His neighbors shunned him. He was forced to move.

In his 2013 federal lawsuit, Simuro asserted that Shedd had violated his civil rights through false arrest and malicious prosecution. Last November, a federal jury in Burlington rejected four of Simuro’s five claims, including false arrest, but found in his favor on the malicious prosecution claim.

The jury awarded him $300,000. But the Vermont League of Cities and Towns, which was paying Shedd’s legal bills, opted to continue the battle. Earlier this year, the case landed at the U.S. Court of Appeals for the Second Circuit in New York.

Before the Appeals Court would hear the case, however, the two sides were required to try federal mediation. Past negotiations had failed, but this time the stakes were higher.

At the outset of the civil suit, Young brought in lawyers from Los Angeles, where he previously practiced. Young and the law firm of Lightfoot, Steingard and Sadowsky were seeking nearly $900,000 in legal fees for the 3½ years that they’d spent on the case. If the Appeals Court upheld the verdict, the VLCT could have been responsible for the entire bill, along with the $300,000 awarded to Simuro.

Simuro’s side also had a lot to lose — the Appeals Court could reverse the verdict or order a new trial. Simuro and his lawyers, who were working on a contingency fee basis, could have ended up with nothing.

The VLCT, which oversees the insurance funds that towns pay into for liability coverage, talked it over with Windsor officials, Shedd’s attorney and insurers. “We all felt it was best to resolve the case for a fair amount and move on, which is what we have done,” Joe Damiata, VLCT’s director of risk management, told me in an email.

I wanted to talk with Shedd, who left Windsor in 2012, but couldn’t reach her. She had been working as a police officer and dispatcher in Wilmington, Vt., but the department’s chief told me Tuesday that she left in January.

Simuro has remarried. After moving to Connecticut following the dismissal of the criminal charges, Simuro and his wife relocated this fall to Brattleboro with his grandson, who is a now ninth-grader. “I’m so glad it’s over,” Simuro told me. “I hope it sends a message.”

The resolution comes on the heels of a settlement in another high-profile Upper Valley police misconduct case. In September, Wayne Burwell, an African-American who started a fitness training business in the Upper Valley after graduating from Dartmouth, reached a $500,000 out-of-court settlement with Hartford police, whom he accused of using unreasonable force when they mistook him for a burglar in his own home.

Why are these six-figure settlements so significant?

Because they’re so unusual.

Cops enjoy qualified immunity, which protects them from virtually all civil lawsuits. “It is such a difficult burden to meet that few police misconduct cases are brought even when the officers clearly erred,” Young said.

Police wield the ultimate power in our society. With the flashing of a badge or the raising of a firearm, they can take away a person’s freedom, or worse. The message sent to the public, as Simuro puts it, should be that police accountability is worth fighting for — no matter how long it takes.

Jim Kenyon can be reached at jkenyon@vnews.com.