Knee-Deep in Hot Water
A retired investigator testifies that APD might engage in selective prosecution.
After retired Austin Police Dept. Detective Gary Fleming's appearance on the witness stand June 19, it's unlikely that department administration officials will ever again leave a detective assigned to its Internal Affairs Division for so long. Fleming, a 31-year veteran who spent the last 18 years of his career as an investigator in Internal Affairs, testified regarding the department's allegedly disparate disciplinary practices, and told the court that he believes APD engages in selective prosecution. He said he never figured out what standards APD administration applied when choosing which officers to sanction, or which complaints against officers to investigate or forward to the district attorney's office for possible prosecution.
"People were like, 'Why was something not done with this case?' or 'Why was something done with this case?'" Fleming said. Perhaps more damning to departmental brass, however, was his assertion that, among his cases alone, APD administration would interfere at least five to 10 times a year, and halt ongoing investigations without explanation. Alternately, he testified, APD officials would regularly fail to send cases to the Travis Co. District Attorney for prosecution, even if clear evidence of "potential violations of criminal laws" existed.
Defense attorney Steve Edwards called Fleming to the stand as part of his claim that the court should throw out the indictment of former APD officer Eric Snyder. He argues that the prosecution of the three-year officer (on a 2000 official oppression charge) illustrates a pattern of selective prosecution by APD officials. Edwards has been trying to convince District Judge Julie Kocurek that he should be allowed to call APD Chief Stan Knee to the stand to answer the charges.
Since Knee became chief, Fleming testified, it seems that several specific factors have determined whether or not an officer is sanctioned: "Rank, reputation within the police department, and, quite frankly, the respect or reputation held by the administration towards the individual." Asked how much an officer's tenure influenced the department's disciplinary actions, Fleming suggested, "The less time [the officer] had with the department, the more exposure [they] had to having an investigation referred to the district attorney or the county attorney's office." And the higher the officer's ranking, the less likely they were to be punished for similar infractions. "Generally speaking, we used to joke around the office that, above the rank of sergeant, [officers' conduct] practically had to be caught on video or something or [it had to be someone] not ... liked by the administration."
Fleming also asserted that the administration's decisions whether to forward cases for prosecution had little to do with whether a criminal violation possibly had occurred. Further, he testified, in the entire time he worked in Internal Affairs -- from 1983 until his retirement in mid-2001 -- he never saw any departmental guidelines standardizing disciplinary sanctions.
Documents Edwards has submitted to the court support those assertions. In issuing a decision in a 2001 arbitration hearing, for example, an arbitrator chastised APD's lack of progressive sanctions, Edwards told the court. There were no witnesses at that hearing -- including Chief Knee -- who could explain the department's disciplinary decision-making process, the arbitration decision stated. "[We] can only conclude that the APD lacks a clear or published policy," Edwards read, "to ensure that officers are free from disparate treatment."
The Snyder lawsuit begs the question: Does the department take capricious and retaliatory actions against rank-and-file officers? APD has been under fire in recent weeks on just this charge. Aside from the Snyder case, a recent suit filed by Detective Jeff White alleges that department brass, through reassignment, retaliated against him for raising questions about possible criminal conduct of some officers during the joint federal narcotics investigation, Mala Sangre. Then, just last week the Austin Police Association (the union that represents the majority of Austin's officers) fired off a harsh letter to Knee, claiming that APA President Mike Sheffield's recent reassignment from full-time union duty was clear retribution for Sheffield's outspoken support for union members.
Upon taking the stand last Wednesday morning, Fleming hesitated to testify, he told Judge Kocurek, because although he is retired, his son is still an officer on the force. "My concern is [that there will] be retaliation towards him as the result of my testimony," he said.
Fleming's testimony was the latest in a series of pretrial hearings over which Kocurek has presided. If Edwards can sufficiently prove an ongoing pattern of selectivity, he would be able to pursue discovery in the case. That would include bringing Knee to the stand, which the city attorney opposes. Another central issue is that selective prosecution and selective enforcement cases require that there be a "protected class" that is being harmed. Historically, these classes have been grouped around race or religion. Here, Edwards is arguing that the officers are a class that is receiving unequal protection under the law -- and that as a subclass, younger officers deserve the same protection afforded to their veteran co-workers. Kocurek is expected to rule on both legal issues tomorrow, June 28.