A Case Of Investigative Malpractice

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Oct 28, 1997, 3:00:00 AM10/28/97

"A Case of Investigative Malpractice"


Augustine Papay Jr
Ret.Detective NYPD
Private Investigator

About the author:
Augustine Papay Jr
is a retired Detective from NYPD
(Housing Bureau) and is a licensed
Private Investigator in New York, owner of
Det.Papay has been assigned to the Applicant
Investigation Unit, the Internal Affairs Bureau,
the Civilian Complaint Review Bureau, and the
Detective Bureau. In his 20-year career he has
earned numerous commendations for Meritorious and
Excellent Police Duty. In August 1991 he was awarded
"Centurion of the Month" by the Centurion Foundation
and was presented with the award by then Police Commissioner
Lee Brown. He may be contacted at INTER-PRO INVESTIGATIONS
PO. Box 143, Chester, NY. 10918.
(914) 469-2892. Fax: (914) 469-6957, E-mail: pa...@sprynet.com.

Many police detectives and private investigators are unaware of the fact
that as "holders of an official position" and being recognized by the
courts as "experts" and "professionals", that they are subject to
malpractice suits just as doctors are in the medical profession. One
example of investigative malpractice is simply the negligence or
carelessness of an investigator who is assigned to search for a suspect
who has committed a criminal act, and by such carelessness or negligent
investigation the suspect is allowed to escape apprehension or arrest
whereby he goes on to hurt others. Without going into specific details
of the law, because I’m not an attorney, I would just like to share the
details of a serial homicide case in New York City which resulted in such
a "investigative malpractice" suit.

On October 10th 1990, I was working the 4PM to 1AM shift out of the
PSA#8 (Police Service Area #8) Detective squad. We covered 11 Housing
Projects which were scattered around 7 NYPD Precincts in the Bronx. At
about 11:45 PM uniformed Police Officers notified me of a missing
10-year old girl, who had disappeared while playing near the Castle Hill
projects. Her name was Jessica Guzman and she lived with her parents and
brothers at the Castle Hill Houses. Because Jessica was only 10-years old
the case was immediately classified as "a special category missing",
which meant that the entire Precinct was mobilized to conduct the search.
After interviewing her distraught parents in great detail, we basically
concluded that more than likely she was not a "runaway". My partner and
I went door to door canvassing. We started at the private houses, where
she was last seen playing with another 10-year old by the name of
Christina and her 8-year old brother Eric. At about 2:00AM we
interviewed Jessica’s two friends and the children’s mother, but all they
could say is that they saw Jessica go home about 5:30 PM. By 6:00 AM the
next morning we exhausted all available leads. There was one slight lead,
which included the possibility that a Dominican grocery store clerk
expressed some interest in Jessica by making comments about her looks.
During the night we woke up the store owner and discovered that the
"Dominican clerk" was on vacation in the Dominican Republic. At about
7:00AM I faxed my "unusual report" to the Chief of Detectives, who kept
me on the telephone for another hour by discussing the case. After
appraising the day tour supervisor about the case, exhausted and beat,
my partner and I went home. The Chief of Detectives put about 10-more
investigators on the case during the 8 to 4 shift and ordered a
re-canvass of the entire neighborhood. When I returned to work at 4 in
the afternoon, I received an update from the Detectives who had
re-canvassed the area. That’s when I learned that the mother of Christina
and Eric had a "live in boyfriend" whom they called their "stepfather".
The man was not in the house at 2-AM when I was interviewing the two
children and no one told us about him inhabiting there. The man was
identified as Alejandro Henriquez 30, who according to the interviewing
Detectives was the last person to see Jessica Guzman alive. Henriquez
told the Detectives that Jessica, Christina and another little girl had
briefly played in his car up on Castle Hill Avenue the afternoon of
October 10th, but that he had driven Christina and the other girl back to
his girlfriend’s house, while Jessica went home. His story seemed
plausible, and he was perfectly cooperative, so the day tour Detectives
didn’t think it was worth taking him to the Precinct for a detailed
interview. They typed up his statement and gave me a copy of it. My
"philosophy" has always been that the "last person" who saw the victim is
generally my "first suspect" unless he is cleared by process of
elimination. The word "stepfather" in the report also made me suspicious
of this individual, so I wasted no time in jumping into a car with the
two day tour investigators and returned with them to the girlfriend’s
residence. I knew that I had to convince this guy to come to the Precinct
with us, without any intimidation. So when we arrived I went trough his
statement again and asked him where was the car which Jessica and the
three other girls had been sitting by the grocery store. When he informed
me that he had rented the car out as a "gypsy cab" and he didn’t have it,
I asked for his cooperation in locating the vehicle, so I can examine it
and look in the trunk. Henriquez agreed to cooperate and before long he
was sitting in my unmarked car taking a ride to the Precinct. Just one
stop I had to make, I told him. I stopped at the temporary command post
on Castle Hill Avenue, where I informed the Chief and the Detective
Lieutenant about my "witness". I also gave the Lieutenant his name and
DOB, so he could do a BCI (Bureau of Criminal Identification) check on my
witness while I was driving him to the Precinct. By the time I got
Henriquez to the 43rd Precinct, a phone call was waiting for me. "Don’t
let that guy out of your sight" screamed the Lieutenant. The background
check has revealed that not only had Henriquez been charged with scalding
a 3-year old boy-his wife’s son from an earlier marriage-but he had been
questioned the previous summer about the murder of two teenagers, one of
whom was his niece. Further checking by investigators revealed that in
1988, the body of Shamira Bello, who had dated Henriqes’s nephew was
found half naked near the police firing range at Rodman’s Neck in the
45th Precinct. We also learned from the 45 squad, that just four months
before Jessica Guzman’s disappearance, a 21-year old named Lisa Rodriguez
had vanished. Just like Bello, she turned up dead in a wooded area off a
Bronx highway in the confines of the 45th Pct. All the homicides in the
45th Pct looked like "dump jobs", which meant that the crime was
committed somewhere else and the body was dumped at another location.
Henriquez told me that he was upset by Jessica’s disappearance and would
gladly prove that he wasn’t involved. Although he made it appear that
he was cooperating, I did receive a phone call from his "lawyer" twenty
minutes after he arrived at the 43rd Precinct, whom I also assured that
Mr. Henriqez was only a cooperating witness in the case and we were truly
appreciative that he was trying to help the police in locating this
10-year old girl. Although I had no case, no hard evidence, and no corpus
delicti, I discovered that Henriquez was a good liar and a manipulator, -
" a magician in certain respects" and my partner and I knew that we were
dealing with a "serial killer" who fit the profile of an"organized"

On October 17th 1990, Henriquez was keeping us company in our squad car,
showing us the places where he used to live, when a call came over our
police radio. A body of a child had been discovered off the Bronx River
Parkway, a few hundred feet south of the Highway #1 Police Precinct. We
let him out our car and raced to the scene. At 5:10 in the afternoon, I
found my missing little girl dead. Jessica had been strangled, and from
the advance state of decomposition, she was probably dumped in the woods
off the highway the night she disappeared. Just like Shamira Bello, 14,
Nilda Cartagena 12, Heriberto Cruz 12, and Lisa Ann Rodriguez 21,
Jessica became a victim of this sociopath killer, who openly professed
his innocence in the news media.

A task force of 20-Detectives and FBI agents worked day and night to
gather evidence in all five murder cases. The investigation reached into
Puerto Rico and the surrounding states of New Jersey and Pennsylvania.
By visiting one of his old landlords and obtaining a rental application
filled out by Henriquez, I discovered that he had been married to a woman
named Nancy, who worked at the World Yacht Club in Manhattan. By
interviewing the personnel director of the club, I learned that in the
summer of 1987, the club had been robbed by two gunmen for $20,000.00.
Interestingly, Nancy was the only person who wasn’t tied up, nor would
she submit to a polygraph test. Later she was seen wearing a fur coat and
Henriquez bought a new motorcycle. It turned out that with Nancy’s help,
Henriquez and an accomplice named Louis Pena had done the World Yacht
robbery. On December 4th 1990, after obtaining a confession from Pena,
Henriquez was also charged with the robbery. In return for concurrent
sentences that totaled five to ten years, Henriqez pled guilty to both
the World Yacht robbery and scalding the 3-year old boy. But there wasn’t
yet enough evidence to indict him for the murders, even though my partner
and I knew that he was a textbook example of a sociopathic serial killer.

For the next 7- months the task force finally placed the puzzles together
and on July 2nd 1991, Henriquez was indicted for the murders of Jessica
Guzman, Lisa A. Rodriguez and Shamira Bello. The murder case of Heriberto
Cruz and Nilda Cartegena was so screwed up by previous investigators,
that we were unable to indict Henriquez for the two slayings. In going
through the case folder, I discovered that several known and anonymous
witnesses had called the "police hot line" and named Henriquez as a
possible suspect or at least a person who was last seen with the two
victims before they disappeared. Yet, the calls were not followed up and
evidence showed that Henriquez was leading the Detectives by their nose.
The "hot line blotter" indicated that an unidentified/male made several
calls to Police and suggested that the two murders were the result of a
drug war and drug dealing activity by a family member, and it was meant
as a "warning" for the familys. The caller described a "black van" which
was allegedly driven by Cuban drug dealers, who the caller alleged,
kidnapped and killed the two children. During the 7- month
investigation, I began to review all of the 4-prior homicides, and I made
a shocking discovery. The investigative reports revealed that one
Detective in particular totally disregarded the calls about Henriquez
(the uncle), and he adamantly focused the investigation on the "Cuban
connection". The files further reveled, that the two children who
disappeared while going to school in the morning in the 43rd Precinct,
were later found asphyxiated and dumped in plastic bags off the highway
leading to the Throggs Neck Bridge in the 45th Precinct. The
investigative file indicated to me that there was no "coordination"
between the two Precinct Detectives, and supervisors just "signed off" on
reports without requiring investigators to follow up each and every lead
in the case. In one of the interviews a 10-year old witness reported that
he observed Henriquez drop off the two kids near the school, and as the
children were heading to the school building, Henriquez honked his horn
and motioned to the children to come back to his car. The witness child
further stated that he then observed Nilda and Heriberto enter the
vehicle and Henriquez took off with them at a high rate of speed. It was
just incredible, that this child’s statement was totally disregarded and
Henriquez was never questioned extensively about his actions during the
day in question. The black van and the Cubans of course were never
located and we now know, that it was most likely Henriquez, who made the
anonymous phone calls to investigators. Reviewing evidence in the file
of Shamira Bello indicated that Henriquez’s nephew dated the victim. The
Police woman who was on duty at the Rodman’s Neck Police Range guard
tower in 1988, observed a silver "Volvo" or "Mercedes" dump something in
the woods about 150-feet from her post. When she flicked on the spot
lights, the man got back into the car and took off. During the
investigation of the case, Detectives never questioned the victim’s
relatives if they knew anyone who drives a "silver volvo" or a silver
mercedes". If they had, they would have discovered that Henriquez was
leasing a Mercedes 450 SEL. In the Lisa Rodriguez case I discovered that
investigators found Henriquez’s beeper number in the victim’s address
book, yet he was never interrogated about his whereabouts during her
disappearance. Perhaps, because the Detective leading the case was the
same guy who was still looking for the "black van" with the Cubans in the
Cartagena-Cruz murders. During one occasion, when the Detectives wanted
to talk to Henriquez about the Lisa Rodriguez case, he told them "make an
appointment with my secretary, I don’t have time now." The two
investigators in the case clearly failed to exercise prudent judgment,
and they disregarded standard investigative practice and procedures in a
homicide investigation. The 4 homicide case files clearly indicated to
me that Henriquez’s name was or could have been linked to all victims and
that he should have been identified as a suspect in each case.

But after all, who am I to make such a judgment on my colleagues, saying
things like "they screwed up 4-homicide cases and they allowed a serial
killer to run loose in the city, and permitted him to kill my Jessica".
After all, I was working in the Internal Affairs Bureau, when Shamira,
Nilda, Heriberto and Lisa were murdered, and I hardly had any "homicide
investigation" experience when I was assigned to the Guzman case. Yet,
after being transferred from IAD to the Detective Bureau in 1990, I was
the one who caught this maniac, who has been described by the media as
"New York’s most twisted killer since the Son of Sam." Just like one
doctor can determine the negligent or improper treatment of a patient by
another physician, in a medical malpractice case, applying the same
reasoning, one investigator can likewise determine the improper and
unethical conduct of other investigators, who disregarded accepted
investigative procedures. This is called "investigative malpractice".

At 2:55 PM on Friday, August 28th 1992, the jury in Bronx State Supreme
Court announced it had reached a verdict. The foreman rose and before the
clerk could even complete his instructions for dispensing the verdict, he
blurted out: in the case of Shamira Bello, "Guilty", Lisa Ann Rodriguez,
"Guilty" and Jessica Guzman, "Guilty". One by one family members exploded
in grief. Henriquez was sentenced to 75-years to life in prison.

On a hot August day in 1992, my partner Detective Irwin Silverman and I
went to visit the graveside of Jessica Guzman in Saint Raymonds Cemetery
in the Bronx. Standing by Jessica’s headstone, I could not help to think
that this little girl would probably be alive today if my colleagues had
done their job properly. This was an investigation which my partner and
I put in hundreds of hours of our own time without being compensated. I
only wish that the investigators who were in charge of the prior murder
cases had done their job the way we did on Jessica’s case. Maybe then my
conscience would not have bothered me, and I would not have told
Jessica’s mother the fact that her daughter "didn’t have to die." In the
beginning of 1993, the Guzman’s family attorney filed a $20-million
dollar civil law suit against the New York City Police Department for the
negligently conducted investigations in the case of Shamira Bello, Nilda
Cartagena, Heriberto Cruz, and Lisa Ann Rodriguez, which directly
contributed to the death of their 10-year old daughter. I believe that
this case clearly shows that all investigators, (police and private) can
be held liable for "investigative malpractice" if their actions or
conduct is deemed negligent, improper or unethical, by which they
directly cause harm to another person.

mal·prac·tice (mŕl-prŕkątîs) noun
As it relates to Police Officers or Private Investigators:
Improper or unethical conduct by the holder of a professional or official
The act or an instance of improper practice.
— mal´prac·tiątion·er (-tîshąe-ner) noun

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