An independent prosecutor appointed by Gov. Jeb Bush said Friday he will not seek criminal charges against Richard Scheff, a Broward Sheriff's captain accused of lying on the witness stand and fabricating evidence in a case that sent Frank Lee Smith to Death Row.

But prosecutor Bruce Colton faulted Scheff and his partner, Phil Amabile, for a series of lapses that ``gave rise to a reasonable suspicion of perjury'' in the 1986 conviction of Smith.

``The question for me is whether sufficient proof exists to warrant a criminal prosecution,'' writes Lawrence Mirman, the assistant state attorney who prepared the report. ``It does not.''

Smith died of cancer last year while awaiting execution for the 1985 rape and murder of 8-year-old Shandra Whitehead in Northwest Fort Lauderdale. Eleven months later, DNA testing cleared his name and pointed to a different killer: Eddie Lee Mosley.

Mosley, confined to a state mental hospital since 1987, is linked to seven Broward murders by genetic testing in the past year. Two men, Smith and Jerry Frank Townsend, served decades of prison time for murders now linked to Mosley.

Broward Sheriff's Office detectives played a central role in both botched cases. Attorneys for Smith remain convinced Scheff lied when the BSO investigator testified he'd shown photos of Mosley to witnesses whose subsequent testimony put the wrong man in prison.

But tests conducted on samples of ink, tape and paper yielded results ``tending to prove'' the authenticity of a photo lineup Scheff presented years after the Smith murder trial, claiming it was part of the original investigation, Mirman concluded.

Smith's attorneys allege the lineup was fabricated years after the fact. But testing on the manila folder that held the photos proved it came from the same batch as several other folders in the original Smith case file.

``They asked for an independent prosecutor. They got an independent prosecutor. The report is done. It is very complete,'' said Broward Sheriff Ken Jenne.

Jenne said he plans no reprimand for the two men, now high-ranking administrators at BSO. But he vowed to address every criticism in the 57-page report as part of an agency-wide review of operating procedures. Scheff and Amabile could not be reached for comment.

Legal experts have said Smith is the first Death Row inmate posthumously cleared by DNA. His exoneration last winter reverberated across the Florida criminal justice system and prompted a new law that expands the rights of convicts to seek DNA testing.

Defense attorneys and surviving relatives say the independent prosecutor's report is the work of a justice system blind to its own failings.

``They lie, and they take someone's life, and they get away with it,'' said Bertha Irving, Smith's aunt. ``DNA proved him innocent. They aren't going to be able to sleep for a long time.''

Smith spent his last years arguing that Mosley was the real killer.

PHOTO QUESTIONS

Prosecutors countered that witnesses had seen Mosley in a photo lineup and had failed to identify him as the man they saw near the Whitehead home the night of the murder.

In a hearing 12 years after the Smith trial, Scheff produced an actual photo lineup and said it was the one he'd shown to the witnesses during the 1985 investigation.

But two of those witnesses said they'd never seen that lineup. Scheff and Amabile didn't mention a lineup featuring Mosley at trial or in their written case notes, nor did the detectives turn the lineup over to defense attorneys as part of routine pretrial ``discovery.'' U.S. District Judge William Dimitrouleas, who prosecuted the case as an assistant Broward state attorney, didn't remember seeing it.

At the request of Broward State Attorney Michael Satz, whose office prosecuted the original case, Bush appointed Colton in January to investigate the perjury claim. Colton is state attorney for Martin, St. Lucie, Okeechobee and Indian River counties.

Mirman, an attorney on Colton's staff, ordered a series of tests on the disputed lineup.

If any ink, tape or paper had been found to be less than 16 years old would have meant the lineup couldn't have existed during the 1985 murder investigation. The U.S. Secret Service found that ink on the back of the photographs dated to the 1980s. The Eastman Kodak Company dated the photographs to the 1970s or early 1980s.

NO `RED FLAG'

Smith's attorneys contend the lineup could still be a clever forgery. But prosecutors and law enforcement leaders say the inconclusive test results fall far short of the standard required for criminal prosecution.

``We were looking for a red flag or something that would prove that the lineup was fabricated. We didn't find it,'' Mirman said in an interview.

BAD RECORD-KEEPING

At the least, Mirman reasons, Scheff and Amabile are guilty of faulty record-keeping. Assuming they are truthful, both detectives ``did not document the existence and use of the Mosley lineup during their original investigation,'' he writes.

Mirman also faults the detectives for apparent memory lapses: They failed to mention the Mosley photo lineup when prompted at trial but recalled it in court hearings years later.

Smith's attorneys say the prosecutor's report, like the Smith case itself, boils down to the detectives' words against those of ordinary residents. At crucial moments, they say, the independent prosecutor sides with the detectives.