Heard not guilty on all counts
Heard triumphs over accusers
By Mike Mason
Special to Martin County Currents
After listening to three days of testimony and then closing arguments Friday morning, a Martin County Circuit Court jury took only 30 minutes to decide that Commissioner Sarah Heard was not guilty of violating public records laws in 2013.
The 64-year-old Heard, elected last August for a fifth term on the Martin County Board of Commissioners, had been charged in an indictment in January 2018 with two first-degree misdemeanors: being a public officer who knowingly failed to maintain public records and failure of a public official to permit inspection and copying of public records.
Senior Judge J. David Langford, a retired circuit judge from Highlands County, told Heard she was free to go after he also dismissed a noncriminal public records violation.
Barbara Kibbey Wagner, part of the husband-and-wife team representing Heard, said after the verdict, “Given the swiftness of the verdict, it’s clear the jury saw what we saw and what Commissioner Heard has maintained since the case began, that she is not guilty of any records violations.”
Her husband, Jordan Wagner, a former prosecutor in the 19th Circuit State Attorney Office and a board-certified civil trial lawyer since 2014, corrected the statement to say, “innocent,” rather than “not guilty.”
PREVIOUS CIVIL RULINGS
In February 2017, a court-appointed arbitrator found in favor of Lake Point in the public-records portion of the case, ruling that Martin County violated state law when it failed to produce, or delayed, its production of Lake Point’s requested records by three commissioners, including Heard.
A circuit court judge upheld the arbitrator’s ruling, and the county was sanctioned $502,000 as a result.
Martin County publicly conceded in November 2017 that “some commissioners” had treated Lake Point poorly and damaged the company’s reputation. They apologized for that as part of the $12 million cash settlement of the civil suit over the Lake Point Restoration mining project in western Martin County, according to court records.
Environmental advocate Maggy Hurchalla, also a former Martin County commissioner, is still on the hook for a $4.4 million judgment Lake Point won for damages after a jury found in February 2018 that she interfered in an agreement among the county, the South Florida Water Management District and Lake Point.
Hurchalla appealed, and is awaiting a decision by the 4th District Court of Appeal after arguing her case before a three-judge panel in March.
THE STATE’S BURDEN OF PROOF
Assistant State’s Attorney Ryan Butler said he was hamstrung by Langford’s pretrial ruling that barred prosecutors from introducing evidence from any of those previous civil cases into Heard’s criminal trial.
“It’s definitely difficult to present a case when some of the most powerful incriminating evidence you have, the judge says you can’t use,” Butler said.
Wagner, in his 45-minute closing argument, said the state failed to prove intent.
“You are a criminal court,” Wagner told the jury. “You are not here about negligence, you are not here about accidents, you are not here about mistakes.
“You are here about things done with intent,” he said, “and there’s no proof of that.”
Wagner also picked at the details of the state’s charging document.
“There is a stark difference between what she (Heard) is charged with and what they are trying to convict her of,” he said.
The original grand jury indictment Jan. 4, 2018, was broad, stating only that Heard had refused the copying or inspection of public records, and had failed to maintain public records, but did not specify which public records.
Three months after the grand jury indictment, Heard’s attorneys demanded a “statement of particulars” from the state attorney’s office as to the specific public records being targeted “so the defendant can mount an effective defense.”
The state identified one email, referred to as the “water” email during the trial, as evidence of Heard’s “failure to maintain” her public records between Sept. 1, 2012, and Feb. 7, 2013. The state also identified only three other emails allegedly between Hurchalla and Heard that the commissioner had not produced; however, court testimony later failed to prove conclusively that any of the emails had originated on Hurchalla’s computer.
The state did not include Lake Point’s first, unfulfilled public records request Jan. 15, 2013, prior to the hack of Heard’s private email account, in its indictment. It included only the public records request by Lake Point attorney Ethan Loeb on Feb. 7, 2013, who asked for all correspondence between environmentalist Maggy Hurchalla and three county commissioners, including Heard.
Later attempts by the state to include Loeb’s Feb. 14, 2013, public records request as well – which broadened the scope to include the public records in Heard’s private email account from Hurchalla to Heard regarding the Lake Point project – was characterized by Heard’s attorney as “moving the goalpost,” since that request also was not included in the state’s charging documents.
Heard, who did not testify, had said in depositions shown to the jury that she lost eight years of saved emails and contacts when her private email account was hacked.
John Jorgensen, a digital data forensics expert originally hired by Lake Point to research the source of emails to and from Heard for Lake Point’s civil suit, testified during the trial that hackers typically do not announce their presence by deleting emails or contact lists.
Prosecutors were unable to produce emails from Hurchalla to prove she was the source.
SCOTT, FIELDING STILL FACE CHARGES
Former Commissioners Anne Scott, who was defeated in a 2016 re-election bid, and Ed Fielding, who did not seek re-election last year, still face charges of public records violations stemming from the Lake Point case.
Both Scott and Fielding have pleaded not guilty.
Scott’s trial is tentatively set for July 22. Fielding, who watched Heard’s trial intently all week, has his trial set for August 5.
Butler said the outcome of Heard’s trial will not affect how prosecutors proceed on the cases against Scott and Heard.
“The evidence and witnesses are all different,” Butler said