Broward deputy's killer may face death sentence

The Fatta family leaves the Federal Courthouse knowing that Kenneth Wilk had been convicted on all counts.



A guilty verdict for the murder of a BSO sheriff's deputy may lead to South Florida's first federal death penalty.


BY WANDA J. DeMARZO wdemarzo@MiamiHerald.com


A Fort Lauderdale man who claimed he was suffering from AIDS-related dementia when he gunned down Broward Sheriff's Deputy Todd Fatta three years ago was convicted of first-degree murder by a federal jury Tuesday.


The panel of eight women and four men deliberated for four days before finding Kenneth Wilk, 45, guilty of murder, possession of child pornography, obstruction of justice and the attempted murder of BSO Lt. Angelo Cedeño.


Fatta's family and a handful of BSO deputies in the courtroom openly wept as the verdict was announced.
''Justice has finally been served,'' said a tearful Josephine Fatta, whose son Wilk shot to death on Aug. 19, 2004. Fatta, 33, was part of a multi-agency federal task force that raided Wilk's home to arrest him and serve a search warrant for child pornography.
Fatta's brother, choking back tears, said the family "is honored by the jury's verdict.''
''We're so happy that it turned out the way it did and that phase one is over with,'' said Joe Fatta Jr. "We're very pleased with the verdict.''
Wilk stared blankly, showing no emotion at the verdict.


DIFFICULT DECISION
The penalty phase of the trial begins Thursday, as prosecutors argue to sentence Wilk to death. Wilk would be the first person in South Florida to be given a federal death sentence.
But the jury's decision did not come easily. At 2:25 p.m. Tuesday, the panel sent a note to U.S. District Judge James Cohn indicating that they were struggling.
''We are unable to reach a unanimous decision,'' the note said.
Ten minutes later, they asked the judge to give them more time. Another 10 minutes went by, and then, a verdict.


The announcement was delayed about 20 more minutes to give Cedeño time to get to the courtroom.
Cedeño and a dozen BSO deputies, including Sheriff Ken Jenne, filled the courtroom. Cedeño smiled broadly as he heard the words ''guilty'' over and over again. Muffled cheers could be heard throughout the courtroom.


''The verdict sends a strong message to South Florida and the rest of the country that the death, murder, of a law enforcement officer will not be tolerated,'' Jenne said outside the courtroom later.
Jurors are not permitted to comment before the end of the penalty phase.


But several times during deliberations, there were indications that one or more jurors were balking. At one point, they asked that testimony be read back to them, a request that Cohn denied, telling them they needed to rely on their own recollection. At another point, they asked for a legal dictionary, which was also denied.


Lilly Ann Sanchez, a Miami attorney and former federal prosecutor who tried a federal death penalty case, said that even though the jurors are death penalty qualified -- which means they are not averse to the death penalty -- it is a large responsibility to find someone guilty who could be sentenced to death.
''It sometimes causes them to think twice, to hesitate, about their decision,'' Sanchez said. ``And there could have been one or two jurors on the fence, [but] not too far over that they couldn't be persuaded to join the rest of the jurors.''


Prosecutors argued that the crime was premeditated because Wilk had been stockpiling arms in anticipation of a police raid. That morning, he had crouched behind a kitchen counter before firing a Winchester hunting rifle as Fatta enterred the house, prosecutors said. Wilk fired at least two rounds, one hitting Fatta in the chest, near his heart, and the other wounding Cedeño in his hand.


But during the trial, Wilk's attorney, Bill Matthewman, told jurors physical, medical and mental evidence in the case raised reasonable doubt about whether Wilk planned to kill Fatta.
Wilk suffered from hearing loss in the days leading up to the raid on his Coral Highlands home, Matthewman said. Matthewman pointed to calls between Wilk and his boyfriend, Kelly Ray Jones, where Wilk had trouble hearing. He said Wilk was using ear drops in the days before the raid.


Wilk woke up that morning not expecting police to raid his home, Matthewman said. He added that Wilk's home had been targeted in the past by gay bashers.
Fatta's parents and brother, who flew down from Buffalo to attend the trial with sister Linda Kirtley of Lake Worth, often wept.
Wilk's attorneys, Matthewman and Rafael Rodriguez, contended that Wilk was in the grips of AIDS-related dementia and shot the deputies in self-defense.


WILK TAKES THE STAND
In an unusual move -- most defense attorneys caution their clients from taking the stand in capital cases -- Wilk testified for seven days. Wilk said he thought the deputies were intruders and that an ear infection prevented him from hearing them announce themselves.
''When I approached Deputy Fatta,'' Wilk said with a pause, tearing up, "I, I, I saw a radio near him and a vest, but I wasn't 100 percent sure. I thought at that point he was a policeman.''
Wilk, who testified he learned he had HIV in 1985, said he did not know there was a warrant for his arrest on the morning of the raid, and he did not know who had entered his home until after the shooting.


When asked by Matthewman if he fired a gun on Aug. 19, Wilk matter-of-factly replied ``Yes, sir, I did.''
But prosecutor John Kastrenakes argued that Wilk shot the deputies simply because they were police officers. Prosecutors presented letters written by Wilk in which he repeatedly indicated he wanted to harm police officers for what he saw as unfair child-pornography charges against his live-in lover, Jones. He urged jurors to disregard Wilk's arguments of self-defense, insanity and AIDS-related dementia.


SENTENCING BEGINS
Jones, a registered sex offender, was in the St. Lucie County Jail on federal child pornography charges at the time, on charges that he sent illicit images of children to an undercover detective over the Internet. Jones pleaded guilty to child pornography charges and is serving more than 24 years in federal prison.


On Thursday the penalty phase will get under way with arguments for and against the death penalty.


The jury must decide unanimously to sentence Wilk to death, and federal death sentences are relatively rare, partly because most murder cases are tried in the state courts. Federal prosecutors say there have been no death penalty convictions in South Florida.
Meanwhile, a civil lawsuit the Fatta family filed against BSO is pending. In the wrongful death suit, the family claims that Fatta's murder could have been avoided had the agency used specially trained and outfitted SWAT team members to serve the warrants. Authorities knew before the raid that Wilk was armed and dangerous, they contend, and several members of the task force had advised using SWAT.