Two Broward County sheriff's captains will not face perjury charges because there isn't enough evidence to show they lied in the case of a man who was exonerated after he died on Death Row, a special prosecutor said Friday.

Gov. Jeb Bush appointed the special prosecutor in January to investigate whether Sheriff's Captain Richard Scheff lied and manufactured evidence to keep Frank Lee Smith on Death Row after the key witness recanted her identification of Smith.

DNA testing last year exonerated Smith and implicated Eddie Lee Mosley in the 1985 rape and murder of Shandra Whitehead, 8, near Fort Lauderdale.

Scheff's partner and friend, Phil Amabile, also was investigated because he backed up Scheff in court.

Lawrence Mirman, an assistant state attorney in St. Lucie County who conducted the investigation, concluded that even assuming the detectives told the truth, they left themselves open to questions and suspicions about their actions in 1985.

"I'm not saying the cops were great and they were telling the truth, but there is a presumption of innocence in this country and we have to be careful about jumping to conclusions," said Mirman. "Their failure to document their work is unfortunate."

Both are 20-year veterans with the sheriff's office. Scheff, 51, is commander of aviation, bomb and arson and other specialty units; Amabile, 46, is police chief in Lauderdale Lakes.

Defense attorneys alleged that Scheff may have lied about showing a photo lineup of Mosley to witnesses and that he later manufactured a photo lineup.

Those suspicions were "well-founded," Mirman said, but his job was to determine whether criminal charges were warranted. In his 47-page report, he concluded they were not.

Mirman wrote that Scheff and Amabile may have given false testimony based on negligence. Both detectives said their testimony was based on assumptions about what they usually did in investigations rather than on specifics about what they did with lineups in the Smith case. They did not document those actions.

But people can be charged with perjury only if they knowingly give false testimony, Mirman said.

Smith's aunt, Bertha Irving, who pushed for DNA testing in his case even after his death in January 2000, said the report is a whitewash.

"They had lots of evidence to prosecute Scheff," she said. "They had no evidence on Frank Smith, and they prosecuted him. Nothing matched, and someone else killed that little girl."

Recalling how Smith died of cancer in prison still protesting his innocence, Irving said, "That damned Detective Scheff. I hope he rots in hell."

Scheff and Amabile could not be reached for comment, but their attorneys said they were happy with the findings.

"Obviously, they're both very relieved and pleased that the special prosecutor reached the conclusions he did," said David Bogenschutz, who with his partner, Mike Dutko, represented Scheff and Amabile.

"I think it re-established that these cops had no culpability except that some of their testimony was based on some assumptions. I think for both of them, it's something they will think about when next they testify," Bogenschutz said.

Sheriff Ken Jenne said he thought the report exonerated Scheff and Amabile. He said the problem could not recur because of changes in procedure that now require documentation of all lineups.

Smith's exoneration moved prosecutors and detectives to re-examine DNA evidence in other cases where Mosley was a suspect. That led to the release of Jerry Frank Townsend last month after he had served 22 years in prison for murders he did not commit.

The cases of all 29 Broward Death Row inmates where DNA evidence is available for testing are also being reviewed.

Mirman's inquiry focused on a photo lineup, including Mosley's photo, that was never mentioned by Scheff or Amabile until after the main eyewitness, Chiquita Lowe, recanted her identification of Smith in 1989.

Scheff's notes and his testimony early in the case mentioned lineups that included Smith and another suspect. But it wasn't until 1991 that he said he had shown Mosley's photo to Lowe and another witness, Gerald Davis, in 1985.

At one point, Scheff was even asked if he had considered any cousins or relatives of the victim and her family as suspects. Scheff mentioned one suspect who is a cousin of the victim's mother, Dorothy McGriff, but never said a word about Mosley, who is also McGriff's cousin.

In Smith's 1986 murder trial, Scheff said he had shown only lineups including photos of Smith and another suspect, James Freeman, to the witnesses.

But at a 1991 post-conviction hearing, Scheff changed his testimony and for the first time said he had shown all three witnesses a lineup that included Mosley. Scheff and prosecutors couldn't produce the Mosley lineup at the time.

Lowe has always insisted that detectives did not show her that lineup, but said they did show her lineups of Smith and Freeman.

It was not until seven years later, in September 1998, that Scheff first produced the lineup he said he had shown to the three witnesses. Scheff said he did not recall who compiled the lineup of six photos. At that time, he said his earlier testimony had been wrong.

Interviewed by Mirman, Scheff said the lineup had been in his case file all the time. But Smith's defense lawyers said it was not turned over to them until 1998, despite public records requests for all evidence in the case.

Even the original prosecutor on the case, William Dimitrouleas, now a federal judge, said he did not recall seeing the unusually arranged lineup, which featured six photos in triangular patterns on two pages. Lineups usually include two straight lines of three photos on a single page.

Mirman ordered extensive forensic tests on the lineup to try to determine when it was put together. Those tests included checking when the tape, the folder and ink on the photos were manufactured.

The results were not inconsistent with the lineup having existed during the initial investigation. But Mirman said he could not conclude one way or the other that the Mosley lineup existed in 1985.

Jeff Walsh, the defense investigator who helped exonerate Smith, said he suspects the Mosley lineup might have existed and been used in another case, but was not shown to Lowe and Davis as Scheff claimed.

"Who's to say that Scheff didn't just go to an old case file and pull it out from a case where Mosley was a suspect?" Walsh asked.

Mirman said he considered that possibility but dismissed it.

McGriff said detectives showed her a photo of Mosley, but Lowe and Davis said they were not shown the photo. Lowe said she could have identified Mosley if she had seen the photo. An artist's sketch of the suspect, compiled from witness descriptions, bears a striking resemblance to Mosley.

But the special prosecutor questioned the credibility of Lowe and Davis. He found the testimony of Dorothy McGriff, the victim's mother, to be more credible. McGriff said that she identified the man she saw fleeing her house only by his shoulders and a "flash" of his face.

Mirman said he thinks Smith went to the house to steal a TV by "an extreme coincidence" after Mosley had already raped and murdered the little girl.

That allegation is ludicrous, said Walsh, the defense investigator. He said there is no evidence to support that theory except McGriff's dubious identification of the man outside her house.

"I think this is just a continuation of the injustice that has been done to Frank Lee Smith and his family," Walsh said Friday. "[Mirman's] failure to go after Scheff is proof that the system can't police itself. All you have to do is be able to read the English language to know that Scheff committed perjury."

Mirman said the investigation was done with integrity: "If we had had sufficient evidence, we would have prosecuted."

Paula McMahon can be reached at pmcmahon@sun-sentinel.com or 954-356-4533.