Miami-Dade County

Appeals court, citing ‘The First 48’ reality cop show footage, puts Miami murder case in doubt

Andrew Cummings, after his 2006 arrest on charges of beating his lover.
Andrew Cummings, after his 2006 arrest on charges of beating his lover. Miami-Dade Corrections Department.

The police reality show The First 48 may have doomed a Miami murder prosecution.

An appeals court on Wednesday upheld a decision by a Miami-Dade judge who threw out key evidence after viewing an episode of the A&E reality show.

The show depicted several minutes of the two-hour interrogation of suspect Andrew Cummings in the January 2006 beating death of Arsenio Lopez at a condo in the Palm Bay neighborhood.

The appeals court ruled that the footage showed Cummings was detained unlawfully by Miami police before he implicated himself in the killing. And the three-judge panel agreed that none of the footage shot by The First 48’s camera crew could be shown at trial.

“The video tape was so heavily redacted that the available portions were deprived of relevance,” the judges wrote in Wednesday’s opinion.

The decision amounts to a major blow to the state’s second-degree murder case against Cummings.

Prosecutors have long complained privately that the popular show gave defense attorneys more avenues to attack a case. For nearly a decade, the show’s cameras had followed Miami homicide detectives as they tried to solve murders in the first few days after the killing.

Miami homicide detectives became among the most popular featured on the show, which in all profiled 113 homicide cases. But in 2013, the Miami police department cut ties with the show amid concerns it glorified violence in Miami’s predominately black community.

Then-chief Manuel Orosa asked that producers donate $13,000 to a police charity for each new episode, a request which was rejected.

The show’s critics have long said that reality-show cameras focus too much on African American neighborhoods, while distracting detectives from solving murders and revealing sensitive police investigative techniques.

Across the country, similar concerns have been voiced in criminal cases. The First 48 came under intense scrutiny in May 2010 after a video crew accompanied Detroit police officers on a wrong-house raid that ended with a police officer accidentally shooting and killing a 7-year-old girl sleeping on a couch. Among the many complaints was that officers used a flashbang grenade only to play to the cameras. After two failed charges, however, prosecutors last month declined to pursue a trial against the Detroit officer.

Locally, many cases featured on the show have resulted in convictions. But some have also fallen apart.

In an investigation involving the 2005 stabbing death of Will Fenzau in his home, defense attorneys used details in one episode to challenge the police version of how a murder suspect came to give a statement to detectives. Prosecutors later dropped the murder charge against the man.

In another case, prosecutors dropped the murder case against a Miami man named Taiwan Smart. His attorneys said detectives falsely arrested him to play for the cameras. He is now suing the city in federal court.

In the Miami case decided Wednesday, Cummings was charged in 2006 with murdering his lover inside their Palm Bay condo on the city’s upper east side. The reality show aired an episode about the case.

In the show, Cummings is shown initially denying any involvement. After detectives read him his rights, Cummings admitted to injuring the victim with a towel rod only after being attacked.

His defense attorney claimed that Cummings – still woozy from a hospital stay after injuries suffered during the confrontation – had been “illegally detained” by police before waiving his right to remain silent. His detention was underscored by First 48 footage showing him being escorted into the secure police station by a patrol officer holding handcuffs in one hand.

Miami-Dade Judge Yvonne Colodny agreed, throwing out his entire statement to detectives. She also expressed serious concerns about the reality show, which aired “dramatically edited” footage of police interaction with Cummings.

In all, the show aired five minutes of more than two hours of interrogation. The rest of the footage was destroyed, a standard practice for the show.

In her order, Colodny said she was concerned after hearing the testimony of Miami Detective Fernando Bosch, who admitted that his “participation in the television show required him to ‘play act’ and create false scenes for the purpose of entertainment,” according to her ruling.

“The court has serious concerns about what is real versus the result of reality television,” she wrote.

Prosecutors had appealed the decision but the Third District Court of Appeal agreed with the judge. Cummings’ attorneys, David Edelstein and Patrick Dray, called the court's opinion “bold.”

“They will not allow police officers to extract ‘confessions’ that are not voluntary, particularly when those same police officers are playing to the cameras like it was a Hollywood movie,” they said.

The show’s executive producer could not reached for comment on Wednesday.

The Miami-Dade State Attorney’s Office on Wednesday could not immediately say whether the decision would lead to prosecutors dropping the case.

“If we feel that there is still sufficient evidence to prove the case beyond a reasonable doubt, we will go forward,” said spokesman Ed Griffith.

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