 Dustin Duty with Seth Miller, Executive Director Innocence Project of Florida (left) and Craig Trocino (right), Director of Univeristy of Miami School of Law Innocence Clinic.
Saam said the robber took $150 after showing her a serrated hunting knife. She said he was a white man with light blue eyes. She said he was five feet eleven inches tall and was wearing a green zip-up hoodie, khaki shorts, and a red Budweiser cap.
Police issued an alert with the description.
At about 4 p.m., 28-year-old Dustin Duty was dropped off just a few blocks away from the scene of the robbery. Duty had spent his second day on the job with a painting firm and his boss, Frederick Davis, gave him a ride to Gary Street and San Marco Boulevard. Duty emerged from Davis’s truck shirtless and left his beige cap behind. He was carrying a backpack as he walked four blocks south—crossing Cedar Street as he went—to a store where he bought cigarettes and beer. He used the $8 that Davis had given him and pocketed the $2.40 in change.
A few minutes later, Duty was stopped by a Jacksonville police officer who believed that Duty resembled the description of the robber because he was a white male wearing khaki shorts. However, Duty was shirtless and had no cap—in contrast to the description of the robber wearing a green hoodie and red cap. He also was wearing a toolbelt containing a roofing hammer, carried a backpack, and wore heavily duct-taped shoes—none of which had been described by Saam.
Nonetheless, police picked up Saam and brought her to a police car where Duty, who by then had been forced by police to put on a white t-shirt, was surrounded by officers. The officers turned him to face Saam, who identified Duty as the robber.
Saam later testified that she identified him although the hoodie and cap were not present, the “same shorts and just overall appearance and the way he moved and stood—it resonated as being the same person.”
Later, at the police station, officers showed Saam a knife they recovered from Duty’s backpack. She said she could not be sure it was the same knife the robber used. She asked if her money had been found. An officer told her “No, but there were narcotics found.” The officer said he “wouldn't be surprised if [Duty] had already spent it.”
That statement was false—officers did not find any narcotics on Duty—but it helped convince Saam that she had identified the man who robbed her.
Detective Gregory Nieto interrogated Duty. During the interrogation, which was electronically recorded, Duty repeatedly denied involvement. He said he was with his boss at the time and had begun working for All State Painting one day earlier. Duty said his boss’s business card was in the backpack.
Because it was only his second day on the job, at first, Duty could not recall Davis’s full name but told Nieto he called him “Junior.” Later in the interview, Duty recalled the first name of his boss—Frederick—though the name was incorrectly transcribed as “Pedrick.”
Duty repeatedly asked Detective Nieto to call his boss to confirm his whereabouts and the timeline of events. And he repeatedly told Nieto that his boss’s full name and contact information were printed on a business card located in his backpack.
Nieto said numerous times that he would call Davis, but in fact, he never did. However, another police officer did call Davis at 4:32 p.m.—about an hour after the robbery. The officer asked Davis if he knew Duty. When Davis said he did, the officer said Duty wouldn’t be coming back to work because he had “robbed a lady at knifepoint.”
Duty was charged with armed robbery. Prior to trial, his defense attorney Brian Crick listed Davis as an alibi witness. However, although Davis came to the trial, he was never called to testify.
On December 16, 2013, a jury was selected. Opening statements were made to the jury on December 17. Saam testified and identified Duty as the robber.
During cross-examination, Crick asked Detective Nieto, “And through your investigation and the interview you conducted, did you learn of any potential witnesses that you would follow up with?”
“I did not have any specific witnesses by name, like full name, address, phone number or anything like that,” Nieto testified. “So, no, I did not.”
“Do you recall being provided with the name Fred Davis?” Crick asked.
“I don’t remember a Fred Davis name being provided to me,” Nieto said.
That afternoon, the lawyers gave their final arguments. The jury began deliberating shortly before 5 p.m. One question was sent out asking if Duty was employed and if he had an alibi for his whereabouts at the time of the crime. When Crick noted that no evidence had been presented “on that topic,” the trial judge instructed the jury to rely on their recollection of the testimony. At 6:30 p.m., the jury convicted Duty of armed robbery. He was sentenced to 20 years in prison.
The First District Florida Court of Appeals upheld the conviction in January 2015. In September 2015, Duty, acting without a lawyer, filed a petition for post-conviction relief. His case subsequently was taken up by the University of Miami School of Law Innocence Clinic, which teamed up with the Innocence Project of Florida.
In October 2016, an amended petition was filed claiming that Duty’s trial defense lawyer, Crick, had provided an inadequate legal defense by failing to call Davis, by failing to conduct a pretrial investigation, by failing to impeach Detective Nieto with the recording of the interrogation showing that Duty had in fact provided alibi information, and by failing to seek to suppress Saam’s initial identification of Duty in the show-up on the street as a suggestive procedure.
The prosecution consented to a hearing, which was held in September 2018. Davis testified when he dropped off Duty the day of the robbery, Duty got out shirtless , leaving his shirt and beige baseball cap in the truck. Thirty minutes later, at 4:32 p.m., Davis got a phone call from a police officer who asked if he knew Duty. When Davis said he did, the officer said he had been charged with robbery and hung up without attempting to confirm Duty’s alibi. Davis testified that he remembered the call was 30 minutes after he had dropped off Duty, because he remembered thinking, “Dang, all in 30 minutes?”
Davis testified that this brief phone call was the only call he received from police.
Davis also testified that prior to trial, Crick contacted him twice, with each conversation lasting ten minutes or less. During these conversations, Davis said, he corroborated Duty’s story. Additionally, Davis said he told Crick that, on the day of the crime, Duty got out without his shirt and his hat. Davis also testified that Crick did not ask him whether he had any phone records that could help pinpoint what time he dropped off Duty.
Davis said that the day before Duty’s trial, Crick asked him to be present and testify as a witness. He said he came to court, but was never called to testify. “It was like I came for nothing. He seen me and didn’t say anything,” Davis testified.
Davis said that after Duty was convicted, Crick asked him to come to the sentencing hearing. Although Crick discussed the possibility of getting Davis’s phone records, nothing was done.
Saam testified that prior to her identification, police told her they found someone matching her description of the assailant. Saam recalled telling police that Duty looked like her assailant because of his height, weight, and build, but that she could not be sure because he was missing the green hoodie and red baseball cap. She said the officers dismissed her concerns by telling her that the clothes could have been discarded. Saam said the show-up identification procedure “was a little pressured . . . there was pressure intended for me to give a yes or no, blanket.”
She said she felt unable to give a complete confirmation and simply explained to the police officer that her assailant possibly could be Duty. Saam said she did not see a backpack on her assailant and only saw Duty’s backpack at the police station after the arrest.
Saam testified at the hearing that her confidence in her identification was shaken after discovering that Davis dropped off Duty in the area at around 4:00 p.m., after the time of the robbery, without a shirt or red baseball cap. Saam said that if she had been presented with this information prior to trial, she likely would not have been able to confidently identify Duty without more information or further clarification. Saam also testified that when police falsely told her Duty was found with narcotics, this explanation for her missing money seemed plausible and reinforced her confidence in her identification.
The prosecution called Crick to testify at the hearing. He claimed that he was first notified about the police call to Davis in January 2014, after the trial and before the sentencing. During cross-examination, however, he admitted that Duty told him about the call at his first opportunity. Crick, who was an assistant public defender, also admitted his office’s internal investigation reports contained information about that phone call just three days after Duty’s arrest and six months before trial. That report showed that when Duty first made contact with the public defender’s office, he told an investigator about the law enforcement phone call and provided a phone number to contact Davis.
Crick testified that even though Duty told him at the outset that he had been dropped off in the area and walked to a store to purchase cigarettes and a beer, Crick made no effort to investigate whether there was surveillance footage from the store. Asked how he knew there was no available surveillance footage, Crick said he took the police officers at their word and failed to conduct an independent follow-up investigation.
Crick testified that he knew the show-up identification was inherently suggestive from the start. He said that he found that, at trial, Saam’s description of the show-up procedure was substantially more suggestive than she had described in her pre-trial deposition. However, Crick said he didn’t move to suppress the identification based on his mistaken belief that he could not file a motion to suppress during the trial.
Crick testified that, prior to sentencing, he learned Davis was attempting to obtain phone records that could corroborate his alibi timeline, but did not take any steps to secure these phone records and left the task to Davis, even though the trial judge was willing to allow more time to get them. Crick refused the offer of a continuance and said that Duty could file a motion for postconviction relief if the phone records were obtained later.
Crick said he did not attempt to use the recording of the interrogation to impeach Detective Nieto’s false testimony about not being given any names as alibi witnesses because Duty used foul language during the interrogation.
Crick admitted that the interrogation video showed that Duty asked Detective Nieto 13 times to “please call [his] boss,” referring to Davis and that Duty told Nieto that Davis’s card with his phone number was in his backpack.
Duty’s legal team also presented Davis’s phone records that showed that Duty was dropped off after the crime had already occurred.
On April 13, 2020, Judge Tatiana Salvador denied Duty’s motion for a new trial. Duty’s lawyers, Craig Trocino, from the Miami Innocence Clinic, and Krista Dolan and Seth Miller from the Innocence Project of Florida, appealed.
On July 15, 2021, the First District Court of Appeal reversed Judge Salvador’s ruling and granted Duty a new trial. The court ruled that Crick had provided an inadequate legal defense. “[W]e find trial counsel’s performance was not that of a reasonably effective trial attorney,” the court ruled.
The court also declared that Crick should have used the interrogation video to impeach Detective Nieto. “The interrogation video directly impeaches Detective Nieto’s trial testimony,” the court said. “If the video had been presented to the jury, Detective Nieto’s credibility would have been in question.” The court said Crick’s concern about Duty’s profanity “does not reasonably raise a concern.”
The appeals court also ruled that Crick should have sought to suppress the show-up identification. “Considering the totality of the circumstances, we find the show-up identification procedures here were unduly and unnecessarily suggestive, and trial counsel should have moved to suppress the show-up identification,” the court said.
On October 27, 2021, the Fourth Judicial Circuit State Attorney’s office dismissed the charge. Duty was released, more than eight years after he was arrested.
Duty filed a legal malpractice case against his trial attorneys and the public defendes office in Duval County Court in July, 2023
– Maurice Possley
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