Justice falls silent in Fort Myers after Andrew's killing
SERIES: Who Killed Andrew?
Three days after 5-year-old Andrew Faust Jr. was killed in a Dunbar drive-by shooting, Cashae Smith gave police details like the names of the suspects and where she was when the estimated eight shots were fired and the length of time she knew one of the suspects — "For a looong, long time" — and how many dreads one of them had and how long she looked one of them in his eyes and where her 1-year-old baby was when the shooting started, and how she ran and scooped him up off the ground, and how the woman she once called "Mom" ran outside with Andrew in her arms crying out for someone to help and call 911.
But seven months later, 19-year-old Smith said she didn't remember any of that.
And because of that, the men suspected of killing Andrew walked free Tuesday after being in jail for eight months.
"The judge doesn't have anything to keep those people on," said Joe D'Alessandro, who is not associated with the case but is a former state attorney for the 20th Judicial Circuit and long-time Southwest Florida legal presence.
Andrew was shot and killed last October by stray bullets that penetrated his Cuba Street home in Fort Myers. Police arrested Terrance Irons, 31, and Thomas D. Edison, 34, on second-degree murder charges about two weeks later. Police said a witness helped lead to an arrest.
That witness was Smith.
It took nothing short of Circuit Judge Joseph C. Fuller ordering her to be arrested for twice failing to appear for depositions to appear. She emerged a week later and gave her deposition a week after that, thus ultimately allowing Irons and Edison to be released on their own recognizance.
DOCUMENTS: Original Witness Statement October 16 | Deposition of Cashae Smith May 18
"I was in the courtroom that day, and as they read this girl's details aloud to a courtroom full of the defendants' supporters and live TV cameras, I could only cringe," Fort Myers defense attorney Peter Dennis said. "Fair or not, the perception is that if you come forward, you do so at your own risk and may be arrested if you later choose not to cooperate. That is the opposite of what we need."
He said this case showed the already tight-lipped community what could happen if they step up.
"Whether truth or not, there was a perception that this 19-year-old scared girl was getting hung out to dry," Dennis said. "This perception was made worse by the very public spectacle where the state attorney's office asked that she be arrested and forced to show up to depositions and offer evidence against the defendants."
Irons and Edison are set for a July 22 court hearing on the murder charges, but Irons' lawyer Joe Viacava isn't sweating it.
"We believe it's going to be dropped, but I can't speak for (prosecution)," Viacava said. "(Tuesday) shows that it is a good sign."
Other attorneys call it a tragedy.
"It's my impression they need a witness, and if they don't have a witness, it's tragic, but this case won't go to court," D'Alessandro said. "It's very sad, but it happens a lot in all various different types of crimes and in all various communities."
The history of Dunbar is pockmarked with unsolved homicides due to lack of community cooperation.
"The community was doing what communities do and coming forward and arresting these people ... But I have no idea what's happened," he said.
Rumors of intimidation or payoff have floated around the community and the courtroom.
Dennis said this case was a chance to end those types of threats from being a factor in people stepping up with information.
"This is a sad situation. This was a historic opportunity for the Fort Myers Police Department and the community to come together and cooperate. Unfortunately, it has done the opposite," Dennis said. "... It's not fair to entirely blame law enforcement, but there is some blame there, because they were unable to reveal what (or) if any type of protection was offered."
Rene Suarez, one of Smith's attorneys, previously told The News-Press: "She was confronted. By whom, I'm not really wanting to get into that ... There's all kind of sides and all kinds of folks who want to talk to her."
Suarez could not be reached late Wednesday afternoon.
In a transcript of the May 18 deposition, Assistant State Attorney Bob Lee asked Smith if she was pressured into saying "I don't remember" or if she was offered a reward to answer the way she did.
Her response to both was, "No, sir."
Even when prosecutors played the audio from the beginning of her statement to the Fort Myers Police Department, she asked them to stop playing it because she didn't want to listen.
Lee said: "When we get to the end of this, if your answer still is you don't remember and that's the truth, then I expect you to tell us the truth. On the other hand, if when we finish, you do remember things and it does refresh your memory and that's the truth, then I expect you to tell us that. That's all we're asking you to do."
Smith shook her head no, said she wasn't willing to listen to the tape and said she still didn't remember anything.
"I would like to think it would be a very important part of someone's life to see a drive-by shooting ... that they'd remember it," D'Alessandro said. "If this case ends up getting thrown out it's a tragedy for the system, the mother, for the community, for everybody, but it happens sometimes."
Between the four attorneys in the room and Smith, the word "remember" appeared 83 times in the 27-minute deposition transcript.
It does sometimes happen, but this precedent this sets for Dunbar is poisonous and dangerous.
"This only serves to make justice much more difficult to gain for the many victims out there. Opportunity lost, or even worse destroyed for the foreseeable future," Dennis said. "And, I know what I would like to believe I would have done, but it's easy to think of this in the hypothetical. I don't blame the girl for being scared for herself or her family."
Connect with this reporter: @ben_brasch (Twitter) and Ben Brasch - Reporter (Facebook). Staff writer Amy Bennett Williams contributed to this report.
Timeline
Oct. 13, 2014: Andrew is shot and later dies at Lee Memorial Hospital
Oct. 16, 2014:Cashae Smith gives Fort Myers police her unsigned statement
Oct. 18, 2014: Andrew is buried at Fort Myers Cemetery
Oct. 27, 2014: Terrance Irons and Thomas Edison are arrested less than a mile away from the scene of the shooting
Dec. 1, 2014: Irons and Edison are arraigned
Jan. 14: The State Attorney's Office serves Smith her first subpoena
Feb. 17: Smith is served her second subpoena
April 8: Smith misses her first court hearing
May 4: Smith misses her second court hearing
May 11:Smith appears in court
May 18:Smith gives deposition