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March 14, 2003/Adar2 10 5763, Vol. 55, No. 29
Fry's guards avoid charges
BARRY COHEN
Editor
No criminal charges will be filed against Fry's security guards for the injuries Larry Melsky received that led to his death. However, the civil case is still pending.
There is not enough evidence to support criminal charges, said Barnet Lotstein, special assistant Maricopa County attorney.
Since the death concerned a potential hate crime - Melsky was Jewish and one of the security guards, Ronnie Michael, had an alleged neo-Nazi background - a team of 15 prosecutors reviewed the case, said Lotstein.
The prosecutors reviewed the 1,600-page Scottsdale Police report and the Maricopa County Coroner's report, he said. No witness testified that Melsky was mishandled at the time he was apprehended, said Lotstein.
Lotstein acknowledged Michael's alleged neo-Nazi background and the fact that Melsky was wearing a Jewish star. However, the security guards' testimony was consistent that Melsky broke away but hit his head on a door post and then landed on the concrete floor. Because he was handcuffed, he could not break his fall, said Lotstein.
A spokeswoman for the Melsky family noted her disappointment in the ruling.
"I do not think justice was served," said Rhona Melsky, Larry Melsky's daughter. This month would have been Larry's 25th wedding anniversary with his wife Rena, she noted. "I can't believe he's not here. ... There is something not right with the world."
The attorney handling the Melsky family's civil case noted his understanding of the ruling that criminal charges will not be filed. "The standard of proof for a criminal case is extremely strict," said Michael Poli. If there is any way to believe the story of the defendants, then they are given the benefit of the doubt, he said.
However, the civil case that the Melsky family filed against the security guards last November depends upon a "preponderance of evidence," said Poli.
In a civil case, if the scales of justice "tip ever so slightly in favor of the plaintiff, then the plaintiff wins," he said. When that standard of justice is applied, "the story of the security guards is not going to hold water."
The four guards, Ronnie Michael, Thomas Roden, Jeff Adams and John Vansice, remain on administrative leave, said Jim Nygren, director of Human Resources for the Fry's corporate office.
The guards detained Melsky on Oct. 5 at the Fry's on 90th Street and Shea Boulevard, after Michael claimed he saw Melsky conceal several items and then return them to the shelf before leaving the store, according to a Scottsdale Police report.
After Melsky was taken into custody, he suffered injuries. He died two days later after being hospitalized.
The possibility that a hate crime occurred led the local chapter of the Anti-Defamation League to track the Melsky case.
If county attorney prosecutors do not believe that there is enough evidence to support criminal charges, "I stand by their ruling," said Bill Straus, Arizona regional director of the ADL.
But Straus noted that the truth of what happened when the security guards took Melsky into custody remains unknown.
"I can't help but feel that we all will never know what happened that evening," he said. "For me, this is a source of frustration. For the (Melsky) family, it is total heartache."
The chance that criminal charges could be filed in the future remains a possibility.
"There is no statute of limitations on homicide," said Bill Fitzgerald, Maricopa County Attorney Public Information Officer. The case could be reopened at any time if new evidence or testimony appears, he said.
In three weeks, a pretrial hearing will be held for the civil case, said Poli. At that time, a trial date for the civil case will be set.
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