Examples of the "Code of Silence" at Austin PD
- OFR -
Police officers are a very insulated bunch. Many believe that only they
and their compatriots "really"
understand what has to be done to fight crime, and as a result even the
most reasonable inquiries
into their actions are met with resistance, suspicion and not
infrequently deception. The Christopher
Commission -- a "blue ribbon" commission led by future Secretary of
State Warren Christopher
which investigated Los Angeles police in the wake of the Rodney King
incident -- found that
"perhaps the greatest single barrier to the effective investigation and
adjudication of [citizen]
complaints is the officers' unwritten 'code of silence' ... [the
principle that] an officer does not
provide adverse information against a fellow officer." Human Rights
Watch concluded in its study of
police brutality in the United States that "In the end, the code of
silence all but assures impunity for
officers who commit human rights violations since, without information
about brutal incidents from
fellow officers, administrative and criminal penalties are much less
likely. In such a climate, officers
who commit abuses flourish."
I've had officers tell me that the alleged "code of silence" doesn't
really exist. Then another APD
officer told me that the department actually has a specific rule
barring
officers from saying
disparaging things about one another -- even if they're true -- and
that
this rule is used to retaliate
against officers who report misconduct by others. I haven't seen a copy
of this rule yet, but its
existence shouldn't surprise anyone who watches the APD closely.
Recently Senior Officer Larry
Richardson filed a lawsuit in an Austin district court alleging he'd
been retaliated against by his
supervisors and the department for reporting misconduct by his partner.
Whether or not his specific
allegations are true, their spirit embodies the phenomenon derided by
police critics as the "code of
silence."
The following cases were taken from disciplinary actions obtained in
summer '98 under the Texas
Open Records Act. Because of the nature of the "code of silence," most
instances by definition will
never come to light. But these few examples offer rare insight into the
process of the official
obscurement of police misconduct at APD.
Senior Sergeant Peter Niedzialek #0357
On or about February 25, 1995, Senior Sergeant Peter Niedzialek
witnessed
Officer Vincent Hernandez kick a handcuffed prisoner. Senior Sergeant
Niedzialek recognized that this was a serious violation of General
Orders, yet
he failed to report the incident for proper investigation and
appropriate
disciplinary action. Senior Sergeant Niedzialek failed to immediately
initiate
appropriate action and, instead, talked with Officer Hernandez and
issued
only a substandard work performance report for the misconduct.
Officer Jason Dusterhoft #3028
Officer Charles Fontanez #2755
On or about June 30, 1996, Officer Dusterhoft, Officer Charles
Fontanez,
and another officer worked an off duty job at Austin Music Hall at 208
Nueces Street, Austin, Texas. The other two officers worked under
Officer
Dusterhoft, who held the master off duty employment contract with
Austin
Music Hall. Officer Fontanez and the second officer worked at an
entry/exit
gate with a private security guard hired by Austin Music Hall. An
employee
of Austin Music took entry fees from customers at that gate.
During the evening, the Austin Music Hall employee determined that
there
were not enough customers to justify keeping the gate open, so he
directed
the officers and the security guard to send customers to another
entrance.
After the employee left, the security guard continued to admit
customers
and
accept entry fees at that gate. The employee did not turn the money in
to its
rightful owner, Austin Music Hall, and gave $20 of the money to Officer
Fontanez. Officer Fontanez then gave $10 to the second officer, telling
him it
was his cut from the gate. The second officer initially accepted the
money
then returned it to Officer Fontanez approximately 15 minutes later
because
he knew he was not entitled to the money.
After the second officer rejected the money, Officer Fontanez discussed
the
situation with Officer Dusterhoft, but Dusterhoft refused to become
involved
or take any action. Officer Fontanez then attempted to return the money
to
the security guard, who refused to accept the money. Knowing that the
money belonged to Austin Music Hall and that he was not entitled to it,
Officer Fontanez nevertheless kept the money and failed to report the
theft to
the department.
The second day, the second officer reported the theft and Officer
Fontanez’s
conduct to Officer Dusterhoft, who again refused to become involved and
failed to report the theft.
Officer George Haywood #2424
On or about January 25, 1995, at or about 3:30 p.m., Officer George
Haywood, while on duty and driving a police vehicle, had a citizen in
his
vehicle who had not filled out the required form. With the citizen in
the car,
Officer Haywood responded to a suspicious persons call. While on this
call,
he took possession of certain property contained in a backpack. When he
took possession of the pack, it contained a still camera as well as a
video
camera. He did not list the still camera on the inventory sheet as
required.
When he turned the property into the property room, it did not contain
the
still camera.
During the course of the subsequent investigation into the location of
the still
camera, Officer Haywood stated that there was no still camera in the
backpack at the time he came into possession of it, such statement not
being
true. He also told Sgt. Jack Garrett that he had not examined the
contents of
the backpack until he reached the APD property room, such statement not
being true. He later told Internal Affairs investigators he had not
talked to
Sgt. Garrett about the property, this statement was not true. He
further
told
Sgt. Xavier Martinez that he did not look at the backpack until he
arrived at
the police car, such statement not being true. He also stated to Sgt.
Martinez
that no one was present when he looked into the backpack at the scene,
such
statement not being true.
Captain Cecil Huff #409
On or about August 22, 1996, Captain Huff met with Assistant Chiefs
Mike
McDonald and Bruce Mills. During their discussion, Captain Huff was
asked
about the accuracy of a memorandum dated August 15, 1996, by Captain
Ricky Roy. Captain Huff falsely stated that the memorandum was untrue
when, in fact, portions of the memorandum were true. Captain Huff also
was
asked whether he had leaked information about the activities of the
U.S.
Attorney's office regarding APD's Organized Crime division. Caption
Huff
falsely told the Assistant Chiefs that he had not made such statements
when,
in fact, he had done so.
Detective Michael Shane #480
On or about March 5, 1997, Detective Shane’s superior, Sgt. Patti
Robinson,
advised him that investigators from the Internal Affairs Division
wanted
to
interview him regarding his knowledge of an investigation involving
Charles
Kallestad which had been completed several years earlier. The Internal
Affairs Division wanted to interview Shane as a witness in connection
with an
investigation regarding Sgt. Jack Kelley. Detective Shane also was
directed
by Sgt. Robinson to copy the entire case file on the Kallestad
investigation.
Detective Shane told his supervisor that the Kelley case had nothing to
do
with him and that he would not go to Internal Affairs for an interview.
Sgt.
Robinson advised Shane that he would be going to Internal Affairs and
directed him again to make a copy of everything in the Kallestad case
file.
Although Shane claimed that he would need time to find the case file,
Sgt.
Robinson easily located the file in a filing cabinet and provided it to
Shane
for copying.
Rather than obeying Sgt. Robinson's directive to provide her with a
copy
of
the complete case file, Shane gave Sgt. Robinson only a computer disk
containing the computer offense report related to the Kallestad case,
claiming that the offense report was all that Internal Affairs needed
to
have
and further claiming that there was nothing else in the case file that
concerned anyone but him. Sgt. Robinson again directed Shane to copy
the
complete case file. When Sgt. Robinson asked Shane for the complete
case
file, Shane responded evasively, asserting that he no longer had the
file and
that the file was somewhere he could not get to it. Eventually, Shane
told Sgt.
Robinson that after she had given him the file to copy, he had locked
it
in
another Detective's file cabinet, that he did not have a key to the
cabinet, and
that the other Detective had left the building. When Sgt. Robinson
later
found that other Detective and retrieved the case file from his file
cabinet,
she noticed that the file had been altered or rearranged.
On or about March 8, 1997, Detective Shane was advised that agents from
the FBI and the U.S. Attorney's office wanted to interview him in
connection
with an ongoing criminal investigation. On or about March 10, 1997,
knowing that the federal agents were interested in finding a particular
offense
report in the Austin Police Department computer system, Detective Shane
reviewed his computer records and deleted a significant number of
reports
and documents from the computer system. When interviewed by the federal
agents later that day, Shane admitted to them that he had deleted
documents
from the computer system. Because of Shane's actions and the
implication
that he had deleted documents relevant to the federal investigation,
the
federal agents served a federal grand jury subpoena on the Austin
Police
Department to obtain backup computer tapes and reconstruct Detective
Shane's computer records as they existed before he made deletions from
the
system.
Captain Lindsay Putman #430
On or about March 7, 1997, Captain Putman contacted representatives of
the
United States Attorney's Office in Austin, Texas, requesting that they
interview him regarding his involvement in a criminal act relating to
the
Shaw/Kallestad criminal investigations in which the United States
Attorney's
Office previously was involved. The interview was conducted. As a
result
of
the interview, extensive investigations were conducted by federal
agents
from
the United States Attorney's Office, the Federal Bureau of
investigation
and
the Internal Revenue Service and by investigators from the Austin
Police
Department Internal Affairs Division.
The investigations revealed that Captain Putman fabricated the
statements
made in his interview and that he lied to federal agents in order to
convince
them to conduct an investigation. Captain Putman anticipated that
another
Austin Police Department officer would accuse him of criminal acts
during
an upcoming disciplinary appeal hearing and that he might be required
to
testify at that hearing. Captain Putman contrived to have federal
agents
investigate him and clear him of any alleged criminal acts prior to
that
disciplinary appeal hearing.
Officer Brian Babyak #2555
On or about July, 1994, during the investigation of a shooting incident
involving Officer Babyak firing his service weapon, Officer Babyak
falsely
stated to investigators that he did not have the citizen in his grasp
when he
fired at a vehicle, that the citizen was standing away from the vehicle
when
shots were fired, that he fired at the vehicle only after the vehicle
had
bumped into his leg, and that he never fired at the vehicle as it moved
away
from him. When confronted with the fact that civilian eyewitnesses and
physical evidence at the scene of the shooting contradicted these
representations, Officer Babyak persisted in these false statements.
Given
opportunities to correct these statements during his Internal Affairs
interview, through a videotaped reenactment of the shooting, during a
meeting with the Department’s Complaint Review Board and, finally,
during
two meetings with the Chief of Police, Officer Babyak continued to make
these false statements.
While the shooting incident was being investigated, the Internal
Affairs
Division received a complaint from Officer Babyak’s estranged wife
regarding his personal relationship with Officer Joyce Casey, who was
assigned to the Department’s Training Academy while Officer Babyak was
a
cadet in the Academy. Ms. Babyak complained about harassing telephone
calls which she believed were made by Officer Casey.
On or about July 19, 1994, at approximately 8:00 p.m., Officer Babyak
was
given a direct order by Lt. Robert Dahlstrom to report to the Internal
Affairs
Division during the afternoon of July 29, 1994, for an interview
regarding the
allegations about Officer Casey. Lt. Dahlstrom also ordered Officer
Babyak
not to have any contact with Officer Casey between that time and the
time he
reported to the Internal Affairs Division the following day. Despite
these
direct orders, Officer Babyak communicated with Officer Casey
approximately eleven times between 8:00 p.m. on July 19th and 4:00 p.m.
on
July 20th when he arrived at the Internal Affairs Division.
In his interview with Internal Affairs investigators on July 20, 1994,
Officer
Babyak falsely stated that the only contact he had with Officer Casey
after
receiving the direct order was a call initiated by Officer Casey and
that, as
soon as he recognized her voice, he handed the telephone to Sgt. Robert
Hernandez, who was visiting at the time. Later during the interview
Officer
Babyak admitted that this was not true and claimed, falsely again, that
he
had communicated with Officer Casey only four times after receiving the
direct order. In trying to justify his failure to obey the direct
order,
Officer
Babyak stated falsely that Sgt. Hernandez had telephoned him to let him
know that Officer Casey was not answering her telephone, so he called
Officer Casey to check on her welfare.
The disciplinary report stated that: "By his repeated deceitfulness
during the
investigation of the shooting and the investigation regarding Officer
Casey,
Officer Babyak demonstrated a continuing refusal to be truthful, even
when
confronted with the evidence and given the opportunity to correct his
statements." Babyak was given an indefinite suspension as a result of
these
incidents.
Senior Officer Roman Lopez #1368
On or about March 19, 1997, Officer Lopez, accompanied by Officer
Carlos
Casas, went to see Mr. Jose Sanchez at an automobile body shop
business.
Officer Lopez's visit to the owner of the business was prompted by a
telephone call Officer Lopez received from his brother who complained
that
the owner was refusing to return a truck that the brother had left with
the
owner in 1996 for a custom paint job because of a dispute over the
amount
of money the brother still owed for the paint job and accrued storage
fees.
Officers Lopez and Casas were driving a marked police vehicle and both
were
in uniform.
The owner told the officers that he had a mechanic's lien on the truck
that
was filed for him by a company that handles such matters for him.
Officer
Lopez told the owner that the amount of the lien was incorrect, and
that
the
owner was charging too much in storage fees. Officer Lopez told the
owner
that the owner's involvement in the situation could become a criminal
matter. At the officers' prompting, the owner signed a document
reflecting
that the brother owed a reduced amount of money calculated according to
what the officers told the owner he could charge. The document also
included
a note reading, "I will wait two days. Cash only." Officer Lopez left
the
business with the original copy of this document, which he delivered to
his
brother.
On or about April 15, 1997, Officers Lopez and Casas, in uniform and in
a
marked police vehicle, returned to the same body shop to see the owner.
This
visit was also prompted by a telephone call to Officer Lopez from his
brother, who this time complained that the owner was trying to charge
him
more than the reduced amount in the March 19 document. Officer Lopez
was
aware that his brother had failed to pick up his truck within the two
days
stated in the document. Although neither Officer Lopez nor Officer
Casas
ever saw the mechanic's lien, and although neither officer had copies
of
any
documents pertinent to the transaction between the brother and the
owner,
Officer Lopez told the owner that the officers were going to file a
police
report for the offense of tampering with a government document naming
the
owner as a suspect because he falsified the mechanic's lien. Officer
Lopez
told the owner that he could be arrested for this charge.
On or about June 24, 1997, Officer Roman Lopez was interviewed by APD
Internal Affairs as part of an investigation into allegations of
misconduct by
Officer Lopez. During that interview Officer Lopez indicated that
offense
report #97-1050662 was written by Officer Carlos Casas #1447. On or
about
September 9, 1997, Officer Lopez attended a disciplinary meeting to
resolve
allegations in the Internal Affairs investigation. At that meeting, in
response
to additional questioning by Assistant Chief Ruben Lopez, Officer Roman
Lopez again maintained that the offense report was written by Officer
Casas.
Officer Roman Lopez actually wrote the offense report.
Senior Officer Carlos Casas #1447
Officer Casas willingly participated in the violations described under
Roman
Lopez’s entry, but chose not to report the violations to the
Department.
On
or about June 27, 1997, APD Internal Affairs interviewed Officer Casas
as
part of an investigation into allegations of misconduct by Officer
Casas.
During that interview Officer Casas indicated that he wrote offense
report
#97-1050662. On or about September 9, 1997, Officer Casas attended a
disciplinary meeting to resolve allegations in the Internal Affairs
investigation. At that meeting, in response to additional questioning
by
Assistant Chief Ruben Lopez, Officer Casas again indicated that he
wrote
the
offense report. Officer Roman Lopez actually wrote the offense report.
Source: Disciplinary memoranda obtained through a 7-98 open records
request.
--
- Outlaw Frog Raper -
Schenectady Copwatch
(518) 356-4238