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[February 04, 2013]
OPD investigation reveals questions
Feb 04, 2013 (Odessa American - McClatchy-Tribune Information Services via COMTEX) -- Amid accusations that he ordered a task force to operate without video and audio recording and later lied about it, an open records request has revealed an Odessa Police Department officer was fired in September and others were reprimanded.
Sgt. Mike Anaya was fired after Odessa Police Chief Tim Burton determined that, on top of a litany of procedural violations, Anaya lied to the Professional Standards Unit investigators looking into the accusations.
But the problems bled deeper than the firing of Anaya, with two other officers accused of lying about the violations and a number of others reprimanded for procedural violations stemming from a March 13 arrest.
"Credibility or possible credibility of these officers could possibly impede or harm prosecution," County Attorney Scott Layh said.
He still has faith in the majority of Odessa Police Department officers, Layh said, but the incident bothers him and raises questions as to why the orders were given to keep cameras and microphones out of the investigations.
Chief Tim Burton said he believed the incident was a product of poor judgment and a lack of integrity.
"I think that in this matter, there was clearly a failure of supervision and leadership on the part of those that were vested with the responsibility to do that," Burton said. "I think that any time you have that kind of a failure, it can lead to problematic decisions by those folks that are subordinate to that supervisor." Despite conflicting versions of events throughout the investigation, Burton said he believes Anaya issued the order to not use cameras and microphones during the task force investigations to a select few officers.
Philip Lyons, a criminal justice professor with Sam Houston State University, said in addition to problems with prosecution, the officers could be susceptible to a negative public perception.
"I think any time we have an incident like this that happens, it does raise questions in the public as to the trustworthiness of the agency and the officers," Lyons said. "It can affect the confidence the public has in the police department." The Odessa American through the Open Records Act filed a Freedom of Information request for the documents from the investigation on Sept. 19, the day of the disciplinary hearings. The Odessa Police Department requested a Texas Attorney General opinion on whether it had to release documents.
After the attorney general ruled in December that the documents must be released, OPD released a number of documents, but not the investigation into this incident.
When notified of this, OPD spokeswoman Cpl. Sherrie Carruth said it was an oversight and Burton waived additional fees associated with the missing pages. All of the documents were made available by Jan. 10.
Although Anaya was the only officer fired, several others were disciplined: Cpl. Ray Delbosque, for pursuing a vehicle without creating a report and for turning off his microphone without stating a reason; Cpl. Patrick Chadwick, for using force against a citizen and not reporting it; Cpl. John Sikes, insubordination in failing to follow directives and orders given by superior officers during an internal investigation; and Sgt. Ricky Smith, for failing to take prompt action when notified of a violation by a subordinate officer.
Anaya was fired, Delbosque and Smith were issued written reprimands and Sikes was suspended for 80 hours. Additionally, Chadwick was ordered to attend performance training for the reporting of use of force.
THE TASK FORCE The order to not use cameras and microphones was given to a guns and gangs task force, formed in response to a number of shootings in early 2012, which was headed up by Anaya and Sgt. Scottie Smith, according to the investigation.
The operation, which began in early March, was made up of narcotics officers, Community Response Unit members and detectives, according to the investigation.
Scottie Smith, in a sworn affidavit, stated commands regarding vehicles without video and audio capabilities came from Lt. Eddie Reed and Lt. David Tavarez in a meeting between those three and Anaya before the task force first met.
"Upon presenting the operation plan to Lt. Reed and Lt. Tavarez, it was suggested by Lt. Reed that we not use cars with cameras," Scottie Smith stated in his affidavit. "The reason for the suggestion was not discussed as to the reason why." Before the operation began, according to the investigation, Cpl. John Sikes altered the initial operations plan under those orders to reflect the use of vehicles without cameras and audio.
Sikes initially denied repeatedly that he wrote the change into the plan, and said in interviews that discussions about audio and video never came up between him and the sergeants.
"Not that I can recall. No," Sikes said in a PSU interview. "We had our briefings. We had all that stuff. I don't remember anything really coming up." After continued questioning in the PSU interview, Sikes admitted then that Anaya told him the operation was to use no cameras or microphones, and that the order came "from the top." Sikes was accused of being untruthful by PSU Lt. Rick Pippins, but the accusation was not sustained by Burton, and Sikes was not reprimanded for untruthfulness.
Burton said when the PSU investigators make recommendations about each of the cases, they are not allowed to take into account mitigating factors, whereas Burton does during his disciplinary hearings.
"(I) tried to determine whether or not their responses to people, while they may or not be accurate and consistent, whether those responses were purposeful manipulations of the truth designed to deceive professional standards unit and designed to influence what would ultimately be my decision," Burton said.
He also said it's a factor as to whether the untruths are specific and related to the case.
But on top of all that, Burton said there are also different perspectives of what they see and what question they perceive is being asked of them, which could contribute to differing answers.
In a briefing with all of the task force members shortly after, within a day or two, several members of the task force reported that Anaya told them to use vehicles without cameras and microphones, according to the investigation.
Sikes, Cpl. Omero Carrasco, Cpl. Patrick Chadwick, Cpl. William Upchurch and Scottie Smith all reported hearing Anaya tell them during the first briefing to use vehicles without video and audio.
Cpl. Clayton Johnson, after volunteering for the task force, also said in an interview with PSU that Anaya had a conversation with him about video and audio.
"Johnson stated that Anaya told him that the directive from the chief was (expletive) with gangs, they were to go out there and throw people in jail, make good cases, do what they had to do and no cameras," according to the investigation.
On the other hand, Cpl. Freddie Nayola, Cpl. Brad Davis, Cpl. Jesse Garcia, ECISD Office Jeff Daniels, Cpl. Coty Watts, Tavarez and Reed all reported they did not hear or did not recall the order.
Carrasco was another officer who changed his story on whether he heard the order, according to the investigation, and was recommended to be reprimanded for untruthfulness. Like with Sikes, Burton also didn't reprimand Carrasco.
Anaya said in a sworn affidavit that he never ordered officers not to use video systems, but that Reed and Tavarez made it clear they were to use undercover vehicles to get closer for surveillance.
According to the investigation, Sikes said he initially included unmarked, undercover vehicles with video in the operations plan, but was later told to exclude the unmarked vehicles with camera equipment in favor of unmarked vehicles with none.
Both Reed and Tavarez denied those allegations and neither were reprimanded.
THE RECORDING INCIDENT On March 13, officers began to attempt the arrest of 31-year-olds Jesse Lopez and Jose Ibarra, according to the investigation.
Not part of the task force, Cpl. Ray Delbosque was initially asked to help in the arrest in a marked patrol unit, at which point he turned on his lights and sirens, according to the investigation.
Delbosque did not initially file a report of a pursuit, but later agreed with PSU investigators that it was a pursuit and was reprimanded for the violation.
The chase ended in the 7700 block of Skyline Avenue, after Delbosque was ordered to disengage and continued to patrol the area. The other officers in the operation kept after the pursued vehicle.
Chadwick said in his PSU interview the men exited the vehicle and Chadwick struck Ibarra with an open palm in the chest as the man ran toward him.
Nayola said in his PSU interview that he went for Lopez, grappling with the man and attempted to kick him in the thigh. Nayola said in the interview that the man moved as he kicked, causing Nayola to strike him in the gut.
The events immediately following the arrests are somewhat contested person-to-person.
Several officers reported in the investigation they heard someone yell "camera, camera" as Delbosque arrived on scene, as none of the vehicles on scene at the time had cameras per the operations plan.
Nayola said in his PSU interview it could have been him to issue the warning, as he's said that before.
"Nayola stated that he says it to make officers aware of the camera so they can watch what they say," according to the investigation.
Johnson, who said he previously had a conversation with Anaya about cameras, said he then heard Anaya shout, "tell him to turn the camera away," although Johnson waffled back and forth for an entire interview about whether it was Anaya or Nayola before confirming Anaya.
Anaya, in a sworn affidavit, denied he ever said that, and no other officers who were on the scene said in their interviews that they heard Anaya order someone to turn away the camera.
Nonetheless, Johnson approached Delbosque, according to the investigation, attempted to turn off the officer's microphone and told him to turn away his vehicle from the scene.
The vehicle was never turned away, but the microphone was turned off.
Out of that exchange, Delbosque was reprimanded for turning off his microphone without explaining a reason why and Johnson resigned before he had a hearing with Burton on accusations of violating the video system policy.
According to the investigation, Ricky Smith was disciplined because Delbosque said he reported the situation to Ricky Smith, who told him it was "their deal and did not do anything about it." Ricky Smith said in his interview that he believed the situation was already resolved.
THE FALLOUT The incident is one of the factors that Burton said was used to disassemble and restock the narcotics unit, as Anaya, Nayola and Carrasco were all reassigned in May.
The unit was disbanded and other officers were assigned to it because of performance, Burton said.
Although Reed is now the lieutenant over patrol after serving as lieutenant in criminal investigations, Burton said that had nothing to do with the investigation.
Burton said he is proud of the people who work at OPD and the vast majority of law enforcement officers do not do similar things to what happened March 13, which Burton called an embarrassment to the department.
Layh, the newly elected county attorney, said the biggest problems coming from the investigation are with Anaya.
"His credibility is forever tainted because of this," Layh said. "And I think any prosecutor or attorney who tells you otherwise would not be fully honest." Local defense attorney Michael McLeaish said he doesn't believe there's any other reason to intentionally turn off microphones and cameras in police vehicles besides to keep the public in the dark.
"The lack of video allows distortion of the truth. Not to say it's done ever, that I know of," McLeaish said. "But it is a vehicle through which a corrupt police officer could make the facts any way they please." Lyons, the professor from Sam Houston State University, said it looks as though the procedures put in place by the Odessa Police Department have worked if the conduct was detected and then disciplined.
However, he agreed there could be possible prosecutorial problems.
"I would not want to be a police officer on a witness stand, or deputy sheriff on a witness stand, in a criminal case being asked by a defense attorney how honest I am when I've been disciplined for dishonesty before," Lyons said. "It seems to me it will raise questions in the mind of the jury as to what the police have to hide that could not be subjected to this kind of routine documentation and recording." District Attorney Bobby Bland said, like Layh, decisions on the use of the officers disciplined will have to be made on a case-by-case basis, as it always has been.
Bland also said it's difficult to determine whether any of the discipline would even affect the cases in which the officers have worked.
"Our office is diligent in making sure that the evidence we put forward is factual and reliable," Bland said. "And (we) would in no way present evidence we felt was less than credible." Depending on the circumstances, Bland said instances of misconduct may not even be used to impeach a witness depending on the facts; but even if that was not a consideration, the credibility of the witness still plays a factor in his decisions.
With respect to Anaya, McLeaish said it could even be up to Layh to prosecute Anaya for perjury, a misdemeanor if someone lies in a sworn affidavit.
Layh said it would be difficult to prove beyond a reasonable doubt, but it would also be up to Burton to present him with a case.
OPD spokeswoman Cpl. Sherrie Carruth said Burton does not plan to pursue a criminal perjury charge against Anaya.
Lyons said the police chief should be trusted with presenting such a case, but it would not be wise to depend on the chief to present such a complaint.
Anaya was hired by Ector County Sheriff Mark Donaldson as a patrol deputy, and Donaldson said he trusts the officer despite the investigation.
"This guy's got a lot of experience as a peace officer," Donaldson said. "He told me his side of the story of what happened. I explained to him that that's always a concern with me as far as people always telling the truth." As with all sheriff hirings, Donaldson said Anaya is on a six-month probationary period. He was hired in November.
Donaldson also said he spoke with other officers who know Anaya and vetted him before making the hire.
"I've given other people chances that have lost jobs at other agencies, and they've come through for me," Donaldson said.
The case against Ibarra, who was charged with felony evading arrest in a motor vehicle, was dismissed as part of a probation revocation, Bland said.
Ibarra pleaded true to the March 13 accusations made against him, and his probation was revoked on a possession of cocaine case. He was sentenced to three years in prison.
Odessa police sent the unlawful carrying of a weapon charge against Lopez to the Ector County Attorney's Office, where it is currently awaiting a disposition.
LACK OF PROBABLE CAUSE Nayola, Carrasco and Anaya were involved in another incident just four hours later that same day when the three men were accused and reprimanded for arresting a woman without probable cause.
Dynique Pryor was on the scene in the 400 block of Seminole when officers were arresting several people for outstanding warrants, and her 16-year-old son was one of those being detained, according to the investigation findings.
When she got on the scene, Officer Jorge Amezola approached her and told her to wait near a vehicle while he found out what was happening with her son.
In the meantime, the investigation stated that Carrasco and Nayola arrested the woman for failure to identify and pedestrian in the roadway, although neither men asked her for her name, date of birth or address.
Carrasco and Nayola later admitted that Pryor did not meet the elements for the charges, supported by Pryor's cell phone video and other officer interviews.
Anaya was accused of having multiple opportunities to correct the unlawful arrest when questioned about it and lying to investigators about the arrest.
Nayola was given a 40-hour suspension and Carrasco was given an 80-hour suspension.
Although Carrasco admitted to investigators that he was being untruthful, to which the investigators recommended an untruthfulness reprimand, Burton did not sustain the recommendation.
Contact Jon Vanderlaan on twitter at @OAcourts, on Facebook at OA Jon Vanderlaan or call 432-333-7763.
___ (c)2013 the Odessa American (Odessa, Texas) Visit the Odessa American (Odessa, Texas) at www.oaoa.com Distributed by MCT Information Services
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