BREVARD COUNTY, Fla. – On four Tuesday nights between Jan. 26 and Feb. 23, right after the upbeat rock music intro and the words: “The Brevard County Sheriff’s Office Presents” appeared onscreen to the chant of “Wheel of Fugitive,” David Austin Gay’s mugshot was the first face of 10 contestants that viewers saw on Sheriff Wayne Ivey’s signature social media show.
“They’re all fugitives. They’ve all got reservations out at the Brevard County jail,” Ivey told viewers during the Feb. 9 episode which also featured the 21-year-old Gay, News 6 partner Florida Today reported.
The problem is that Gay wasn’t a fugitive at the time; Gay had been in the Brevard County Jail since Jan. 25 and wasn’t on the lam when he appeared on the Jan. 26, Feb. 2, Feb 9. and Feb. 23 episodes. For three of those weeks, Gay was at the jail after turning himself in over a probation violation. The fourth time, Feb. 23, he was, in fact, legally out of jail, having taken a plea offer.
“It’s very humiliating, it’s keeping me from getting jobs,” said Gay, whose probation violation resulted from a dispute with his father. When his probation officer called Gay to inform him there was a warrant for his arrest, he surrendered the same day, he said. His original arrest, for punching a man, was Gay’s first felony offense and adjudication was withheld in the case.
IT’S TIME FOR EVERYONE’S FAVORITE FUGITIVE FROM JUSTICE SHOW...”WHEEL OF FUGITIVE®️!!”
IT’S TIME FOR EVERYONE’S FAVORITE FUGITIVE FROM JUSTICE SHOW...”WHEEL OF FUGITIVE®️!!”Posted by Brevard County Sheriff's Office, Florida (Official) on Tuesday, February 23, 2021
While Gay is the first individual incorrectly featured on the show to speak out, he’s not the only person to have been labelled as a fugitive from justice by the show when he was not.
An investigation by FLORIDA TODAY of a year’s worth of episodes of the BCSO’s “Wheel of Fugitive,” identified 60 individuals who were incorrectly featured across 45 episodes on the wheel between Feb. 25, 2020, and Feb 23, 2021. Out of the 45 episodes, all but four included at least one non-fugitive. In the Nov. 3, 2020, edition, seven out of the 10 “participants” were either already in jail, had been released or had no active arrest warrant at the time.
Who vets fugitives for the show?
Although “Wheel of Fugitive” has a disclaimer crawling along the bottom of the screen that some of those depicted might no longer be fugitives, it raises questions how the sheriff and his staff are vetting those featured. And legal experts say the disclaimer doesn’t remove the burden from the sheriff to make sure that he is not depicting people as fugitives when they aren’t.
Altogether, FLORIDA TODAY found that the non-fugitives were incorrectly featured a cumulative 135 times out of 448 slots across 45 episodes. Differently put, fugitives aren’t fugitives nearly 30% of the time on “Wheel of Fugitive.”
What’s more, in most of those cases, 112 out of those 135 times, the show featured people who were sitting in the sheriff’s own jail. The remaining 23 were a mix of people legally out on parole or plea bargains, or people who simply did not have active warrants for their arrests.
FLORIDA TODAY was able to determine who was and was not the subject of a warrant and who was incarcerated in Brevard County Jail by checking the names of those portrayed in each episode against the BCSO’s searchable booking database and the Brevard County Clerk of Courts, all publicly available records.
“It doesn’t necessarily project an image of professionalism for his department,” said Kenneth Nunn, a criminal law professor at the University of Florida’s Levin College of Law.
“Something needs to be done about it,” Gay said. “(The sheriff) should probably fact-check everything before he goes showing the whole world talking, telling everybody people’s fugitives when they’re not.”
The revelation that so many people like Gay have been incorrectly featured raises serious questions about how “fugitives” are selected for the show each week, how their status could be overlooked, and the motivations behind the show as well as the huge success rate in capturing fugitives that sheriff claims.
Ivey did not address these questions emailed to him by FLORIDA TODAY but replied: “Thank you for your interest in the success of Wheel of Fugitive ® and for continuing to follow us on Facebook at Brevard County Sheriff’s Office Official to partner with us to help keep Brevard County safe!”
“Wheel of Fugitive” is the longest running program in Ivey’s prolific video repertoire with 179 episodes published on the sheriff’s YouTube channel and Facebook page since making its debut in December 2015.
The show has followed more or less the same format since its inception.
In each episode, Ivey appears alongside a big roulette wheel festooned with mugshots. Sometimes he is dancing to the music or just standing relaxed with a big smile: “Now, you know how this works,” he’ll say. “Every week at Tuesday night at eight o’clock, you tune in, so you can see if one of your friends, somebody you went to school with, or just somebody in your neighborhood’s up on Wheel of Fugitive.”
He then entreats “fugitives” to “do the right thing” and surrender before his fugitive unit comes and finds them. “Go turn yourself in, get this chapter of your life behind you,” Ivey said on the Feb. 9 show. He then spins the wheel and whomever it lands on is the week’s unlucky winner, the “fugitive of the week.”
In none of the 45 episodes did the wheel ever land on the face of a non-fugitive to be selected as the “fugitive of the week.” And across many episodes in a given month, few new faces were added but the wheel almost always landed on the recent additions. This was the case, for instance, in nearly every episode from April to June of last year.
The simple premise and Ivey’s folksy approach has turned the show into the crown jewel of his social media programming efforts and put him and BCSO on the national social media map, earning both praise and scorn. It has been featured on national network news shows and has been lampooned by late night television show hosts.
Showbiz or clever law enforcement?
Ivey and his supporters praise “Wheel of Fugitive” as a great way to engage the community and tout a huge following and tremendous success rate.
“It’s designed to engage our community and it has worked almost to perfection,” Ivey told FLORIDA TODAY in 2017. At the time, Ivey said “about 88%” of the suspects turn themselves in or are taken off the streets from citizens’ tips. He still sticks by that figure and says he can hardly go anywhere without somebody telling him how much they like the show.
Critics have long grumbled about the show’s format. Attorneys in Brevard County have called it “unnecessary” and “unprofessional.” Cocoa lawyer Alton Edmond, who ran unsuccessfully against Ivey last year, made it a promise of his long-shot campaign to cease the social media programming that he called “dehumanizing” for the people featured, a waste of taxpayer resources and a distraction from the serious business of law enforcement.
Brevard and Seminole county public defender Blaise Trettis, while he endorsed Ivey’s reelection, told FLORIDA TODAY at the time: “It seems to be more showbiz than actually effective law enforcement.”
The showbiz aspect was not lost on comedians who saw “Wheel of Fugitive” as perfect late night fodder. In December 2016, Trevor Noah, host of Comedy Central’s The Daily Show, lampooned “Wheel of Fugitive” along with contributor Hasan Minhaj, sarcastically calling it “the most incredible show online.”
“I don’t understand,” Noah said at one point. “Why don’t police try and catch all the criminals instead of picking one per week?”
Fourth Amendment violations?
UF Law professor Nunn is not bothered by the format as he sees it as being in the vein of historic American law enforcement traditions.
“There’s a long-standing history of the local sheriff’s department or the FBI going back to cowboy days of putting up wanted posters and trying to get citizens to provide information where people might be. So if that’s what the sheriff’s department or law enforcement is going to do, I don’t think you can really complain about the format in which the sheriff’s department does it,” Nunn said.
But, the repeated presence of non-fugitives on the wheel is a problem, Nunn said.
In the first instance, Nunn said, warrant systems are often inaccurate and unreliable, pointing to numerous reports about how warrants often aren’t updated after they are served. An investigation by The Marshall Project on so-called “ghost warrants” showed that in one instance a man in New Orleans was arrested on a 25-year-old inactive warrant.
A spokesman for the Brevard Clerk of Courts, Tyler Winik, told FLORIDA TODAY that warrant systems are fully in the purview of law enforcement, and that if a warrant is served or recalled, the Clerk’s office only processes paperwork and doesn’t have the ability to edit databases used by law enforcement, or even see into them in some cases.
“The lion’s share is dependent on the BCSO,” he said.
Sometimes, portraying a non-fugitive on “Wheel of Fugitive” simply could be an issue of bad timing. In cases where a fugitive might be booked right before an episode aired or even the same day, the error would be understandable. But often non-fugitives like Gay were featured week after week.
In the most extreme case found in the past year, Nicole Jill Dowd was featured as a fugitive on eight consecutive episodes between March 24, 2020 and June 2, 2020, despite being booked in jail on March 19, and remaining there until she was legally released on June 2, the day of her last appearance on “Wheel of Fugitive.”
Nunn warned that broadcasting the name of a fugitive who isn’t, could have legal implications.
“It’s a violation of privacy,” said Nunn. “The reason why someone should be featured on the show is because there’s a need to go out and apprehend them. But if they have already turned himself in, there’s no reason to broadcast their name all over Brevard county.”
Doing so, he said, may expose the sheriff’s office to libel, defamation or some other lawsuits based on the fact that the sheriff may have violated the Fourth Amendment of the U.S. Constitution by not taking care to protect an individual’s right to privacy.
“If you’re putting someone out there as a fugitive who is not a fugitive, then you’re not complying with the Fourth Amendment’s dictates in regard to privacy, there may be a civil action that you can take as a consequence of that,” Nunn said. “Certainly, that’s something that the county commission in Brevard County should be concerned about,” he said.
Episodes do have disclaimer text running along the bottom of the screen that reads: “All suspects are considered innocent until proven guilty in a court of law. Subjects identified in this episode had outstanding warrants in effect at the time this episode was filmed. The suspects may have since been arrested or the alleged charges otherwise resolved or dismissed.”
But Nunn said it likely hurts rather than helps the sheriff’s protection from liability.
“I don’t think this gets the sheriff off the hook, because the harm comes from the publication of fugitive status and putting one’s mug shot up. If anything, it cuts against shielding from liability because it seems to be an admission that the program is potentially inaccurate,” Nunn said.
Sheriff was told about non-fugitives
In the case of Gay, it appears that the sheriff did have some warnings.
“Sheriff you need to update the wheel David Gay is already in jail,” Renee Merrell wrote in the Facebook comment sections for Feb 2. episode. But Gay would still be featured on Feb. 9 and 23.
“What this incident shows is that obviously the sheriff isn’t doing any research before he shoots his episodes,” said Trettis, Brevard’s public defender.
Joseph Leavitt, an assistant public defender in Trettis’ office and Gay’s defense attorney, said he thought that being featured on the wheel has no legal implications for Gay but said it definitely casts an undue cloud on his reputation.
“The opinion that comes to people’s mind: some of the other comments on some of the videos are, ‘Hey, hey it’s ‘wheel of meth users,’ and with Mr. Gay’s case there was nothing related to drugs whatsoever,” he said.
“People post some horrible comments ... it’s putting our clients in a really negative light for the public, and just, it feels unnecessary to be honest,” he said.
Gay says he’s looking for a resolution to his issues and hasn’t ruled out legal action.
“There’s no reason for me to be on Wheel of Fugitive ... it’s keeping me from going further with my life and trying to make things better,” Gay told FLORIDA TODAY this week at the park near his Cocoa home. “I’d like to get back to welding or doing some kind of mechanic work, (but) it’s kind of troublesome to find something like that because people are looking at me like I’m some kind of monster when I’m not, I’m actually a nice person.”