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.