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Why haven’t Pinellas prosecutors dropped tainted child porn case, judge asks

The evidence against James Rybicki was thrown out by a judge who said a detective and prosecutors made ‘false statements’ to obtain a search warrant.
Pinellas Pasco Circuit Court Judge William H. Burgess III, listens in court Friday during a hearing in the case against James Rybicki, 63. Burgess earlier this month wrote an excoriating order tossing out evidence collected in a search of Rybicki's home, saying prosecutors and detectives lied to obtain the warrant. [SCOTT KEELER  |  Tampa Bay Times]
Pinellas Pasco Circuit Court Judge William H. Burgess III, listens in court Friday during a hearing in the case against James Rybicki, 63. Burgess earlier this month wrote an excoriating order tossing out evidence collected in a search of Rybicki's home, saying prosecutors and detectives lied to obtain the warrant. [SCOTT KEELER | Tampa Bay Times]
Published Nov. 22, 2019
Updated Nov. 22, 2019

LARGO — The Pinellas-Pasco State Attorney’s Office has not dropped the charges against a 63-year-old man after a judge threw out much of the evidence in his case, ruling that a detective and prosecutors violated his rights by lying to obtain a search warrant.

Circuit Judge William Burgess III excoriated those officials in a Nov. 1 order, saying they made “false statements” to obtain a search warrant to investigate a charge of false imprisonment against James Rybicki.

RELATED: Judge rules Pinellas detective, prosecutors lied in child porn case. Defendant could go free.

It was an unconstitutional “ruse,” the judge wrote, to enter Rybicki’s home and obtain evidence of crimes such as lewd and lascivious molestation and possession of child pornography. Investigators charged him with five crimes in 2016.

When the case reconvened in his courtroom on Friday, Burgess asked the state why — three weeks after he threw out the evidence — prosecutors had not yet decided to drop the charges.

James Rybicki, 63, faces charges of lewd and lascivious molestation and possession of child pornography. But he could go free after a judge found that Pinellas sheriff’s detectives and Pinellas-Pasco prosecutors lied to obtain a search warrant in his case. [PInellas County Sheriff's Office]

“I can’t say why they haven’t made that decision,” Assistant State Attorney Alexandra Fugate said. “We do obviously want to give this case every consideration that we possibly can to make the best decision that we can.”

Burgess ordered all parties to return to his courtroom for another hearing on Dec. 6.

His order named the Pinellas County Sheriff’s Office detective who obtained the warrant, Michael Alvarez, who left the agency in 2017. But the judge did not name the prosecutors he criticized. The Pinellas-Pasco State Attorney’s Office on Friday released the names of those prosecutors.

Fugate, who was in court Friday, is prosecuting the case, said Executive Assistant State Attorney Kendall Davidson.

Former assistant state attorney Kate Alexander also consulted on the case, Davidson said, and now works for the Department of Justice.

Davidson said the Pinellas-Pasco State Attorney’s Office disagrees with the judge and does not believe its prosecutors did anything wrong. He supervises the office’s child abuse prosecution unit and oversaw this case.

State Attorney Bernie McCabe declined to comment to the Tampa Bay Times and referred all questions to Davidson.

Outside the courtroom, Fugate said her “understanding is nobody has suggested I lied.” She also referred questions about the case to Davidson.

Alexander did not respond to calls and emails for comment. The Justice Department declined to comment on Friday.

In a deposition in the case, Alvarez said he consulted with Alexander when he drew up a search warrant to investigate the false imprisonment allegation in 2016. In his order, the judge wrote that an unnamed prosecutor encouraged Alvarez to apply for the search warrant.

Davidson said he believes the judge was referring to Alexander.

Fugate was identified as the prosecutor who sought judicial approval for the search warrant, according to a motion filed by Rybicki’s defense attorney, Lucas Fleming, to throw out the evidence.

“At that point,” Fleming, wrote, “the decision had already been made weeks before to not proceed with prosecution on the False Imprisonment charge; however neither affiant informed (the judge) of that decision.”

However, Davidson denied the defense’s assertion and said at that time his office had made no such decision.

After Alvarez left the Sheriff’s Office in May 2017, he was soon hired by the Ann Arbor Police Department in Michigan as a patrol officer. Pinellas Sheriff Bob Gualtieri told the Times he would arrest Avarez if he could. The sheriff also said he called Ann Arbor police on Thursday and told them of the judge’s allegations. The police department said it put Alvarez on paid leave that day, pending an internal investigation. Alvarez has not returned repeated requests for comment.

Fleming said he was surprised the state had not yet dropped all the charges. Three of the five charges Rybicki faces hinge on evidence collected during the search of his home: possession of child pornography, promoting a sexual performance by a child and video voyeurism.

The other two charges, two counts of lewd and lascivious molestation, are based on witness testimony and could still be prosecuted.

Davidson agreed that three charges stemming from the warrant will have to be dropped. The other two charges against Rybicki are still being reviewed, the prosecutor said, and a decision should be made by the Dec. 6 hearing.

Rybicki had planned to appear at Friday’s hearing. But Fleming said they decided he should stay at home because he has received online threats.

Times senior news researcher Caryn Baird contributed to this report.

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