Denver police officer sued, accused of false arrest

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Denver Officer Jay Spitzer

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DENVER -- Denver's Civil Service Commission called a detective's investigation "incompetent" and full of "blunders."

It gave Det. Jay Spitzer a 10-day suspension, but the man who was wrongly arrested said the punishment doesn't fit the misconduct.

"They want citizens when we break the law to be accountable for our crimes. What about the police, where's their accountability?" asked Duane Robitaille, who filed a federal lawsuit against Spitzer.

The 51-year-old man from Cotopaxi wasn't even in Denver on Feb. 15, 2013 when he was accused of stealing a generator with his ex-wife.

It turns out Penny Robitaille and her then-boyfriend Terry Cottonwood rented a generator from United Rentals in Denver, only to immediately sell it to a pawnshop in Brighton for $600.

"I feel terrible about it," said Penny Robitaille, who never thought her crime would somehow get her ex-husband in legal trouble. "Duane should never have been arrested."

Spitzer wrote in an arrest affidavit that an employee at United Rentals identified the two suspects who stole the generator as Penny and Duane Robitaille. In reality, the employee never identified Duane Robitaille. He only told police that he assumed the man with Penny Robitaille was her husband.

Investigators with internal affairs found Spitzer never showed the employee a photographic lineup and ignored information in the case file, including a phone call made to Duane Robitaille's mother Darlene Robitaille.

She told a detective her son had divorced Penny Robitaille a couple of years before the incident.

Darlene Robitaille recounted to FOX31 she told a detective: "There's just no possible way whenever this act was taking place that my son was with Penny Robitaille because they haven't even spoke to each other for two years."

Darlene Robitaille said she gave police her son's phone number but Duane Robitaille said he never heard from police until he was arrested on a warrant months later on Thanksgiving night 2013 during a traffic stop.

"They had no evidence against me of any kind, but they still assumed I did it," Robitaille said.

Penny Robitaille said she tried to tell her public defender and the judge in her case that her ex-husband wasn't her accomplice but nobody would listen to her.

"I feel bad because not only did (Duane Robitaille) almost lose the farm, the kids went through a lot more pain than I could ever imagine," she said.

One month after the crime, Brighton police identified Terry Cottonwood as the man who pawned the generator at Mister Money because he signed the pawn slip.

That information was shared with a Denver detective who emailed Spitzer that Cottonwood was their suspect, writing, "The guy who pawned it is mostly likely the guy that was with Penny Robitaille when she rented the generator since it was pawned on the same day it was rented."

Despite the email, Spitzer didn't cancel the warrant to arrest Duane Robitaille that a judge had signed the day before the email.

"To be thrown in jail for no reason at all because somebody can't do their job, I felt like killing myself to be honest with you," Robitaille said.

It took Robitaille four months to clear his name with a legal finding of "factual innocence." It took Denver's Civil Service Commission more than two years to suspend Spitzer for 10 days for having an innocent man arrested.

Robitaille said what really outraged him was the lack of an apology from Spitzer when one day he finally reached the detective by phone.

"I mean he knows I'm innocent, I'm calling him out on my innocence and tell him 'You know damn well I had nothing to do with this crime' and he says 'Well, what's done is done,'" Robitaille said.

Robitaille said he won't forgive Spitzer but he has forgiven Penny Robitaille. The couple has since gotten back together.

"When you love someone, enough is never enough and I love Penny," Robitaille said.

Penny Robitaille ended up serving six months for the stolen generator and other crimes. Cottonwood served 48 days.

Duane Robitaille has filed a civil rights lawsuit against Spitzer but no trial date has been set. Spitzer, his attorney and a spokesman for the Denver Police Department have declined comment.

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