West Miami-Dade

In self-defense case at Miccosukee casino, slain ex-Army Ranger was the aggressor, evidence shows

Kenin Bailey (left) and Mikey Lenard in Miami-Dade court on Wednesday after prosecutors announced they would not pursue murder charges in the Christmas night killing of former U.S. soldier Fernando Duarte.
Kenin Bailey (left) and Mikey Lenard in Miami-Dade court on Wednesday after prosecutors announced they would not pursue murder charges in the Christmas night killing of former U.S. soldier Fernando Duarte. Miami Herald

On Christmas night, Miccosukee police arrested and blamed two poker players for the death of Fernando Duarte, an ex-Army Ranger shot to death after a confrontation in the parking lot of the Miccosukee’s West Miami-Dade casino.

But prosecutors on Wednesday announced they would not file murder charges against Kenin Bailey and Mikey Lenard, and the state’s review of witness accounts, medical evidence and surveillance video made one thing very clear:

Duarte, a burly man with a thick bushy beard, might have been unarmed but was the clear aggressor that night — and was also extremely drunk and likely high on cocaine.

He and a friend repeatedly cursed at the two black men at the poker table, calling them “n***ers,” so alarming the dealer that security escorted Duarte and his pal from the game room.

During a chance encounter in the parking lot, Duarte got out his car and “engaged” Bailey and Lenard in the parking lot, according to a newly released prosecutor’s report. Then as Bailey and Lenard tried to drive away, Duarte twice maneuvered his car to block theirs from leaving

“I am going to f**k you up and kill you,” Duarte snarled after the first stop, getting out of his car and making a hand gesture like a gun, Lenard later recalled.

Moments later, Duarte again blocked Lenard’s car from leaving the resort parking lot. But this time, Duarte got out and “charged” toward their reversing car, getting so close that Bailey opened fire, shooting 13 times and hitting the man with two fatal shots.

Between Duarte’s threats, hand gestures and the possibility that he might have been reaching for a weapon, Bailey was justified in using deadly force, prosecutors concluded.

“Bailey could have reasonably believed that he and Lenard’s life was in danger and that a firearm may be used against them,” prosecutor Gail Levine wrote in her final report on the case.

The report also noted that Duarte’s blood alcohol level was .196, more than double the legal limit.

“I think it was pretty evident that the use of force in this case was justifiable,” said Peter Heller, the defense attorney for Bailey, whose relatives and supporters cheered in court Wednesday when the case was dropped.

Unknown to anyone that night, Duarte was also under federal investigation on suspicions of dealing drugs, according to a law-enforcement source.

The case was recorded as the first homicide arrest for the Miccosukee police department, which serves a tribe that has long chafed at the rule of state authorities, including the Miami-Dade State Attorney’s Office.

The tribe of more than 600 members maintains a federally designated reservation deep in the heart of the Everglades off Tamiami Trail, more than 20 miles west of Krome Avenue. The casino land, at the corner of Krome and Tamiami some eight miles east of the reservation, was added to the tribal land in 1990.

For decades, the sovereign tribe has fiercely defended its rights to govern independently. The arrests in the casino shooting were seen as a test case for prosecutors and the turnover-plagued tribal police department, two sides that have bumped heads in the past.

Several years ago, prosecutors ripped the department’s handling of a January 2009 auto wreck on Tamiami Trial involving tribal members and a Kendall woman who died.

Citing the tribe’s status as a sovereign nation, the department at first refused to turn over to prosecutors reports and photos from the crash scene, even though it happened four miles west of Krome Avenue on a state road, well away from the tribe’s federally protected reservation.

The Christmas day shooting revived questions about which police agency should be investigating violent crime at the casino, which is tribal land and also falls under federal jurisdiction, if a tribe member is involved in a crime.

From suicides to drugs overdoses, tribal police detectives have investigated many deaths at the casino over the years — but never a shooting like what happened Christmas night.

“Had Miccosukee police utilized the services of the extensive experience of the Miami-Dade homicide bureau, perhaps an arrest could have been avoided,” said Heller, the defense lawyer. “A more thorough investigation should have been undertaken before a knee-jerk arrest took place.”

The killing of Duarte would have been a tough prosecution in any jurisdiction, particularly because of Florida’s controversial Stand Your Ground law, which eliminated a citizen’s duty to retreat before using deadly force to counter a grave threat. But Duarte’s killing would likely have been ruled self-defense even before the 2005 law — the two men could have claimed they were trying to escape in their reversing car when Duarte charged at them.