The courtroom wasn't packed, but the tension was thick on June 16, when Travis Co. District Judge Paul Davis denied the city of Austin's bid to have thrown out of court a whistle-blower lawsuit filed by Austin Police Department Officer Jeff White. "There is enough [evidence] here to merit a trial," Davis opined a decision that may finally set the stage for a public vetting of long-simmering allegations of criminal misconduct within the APD's highest ranks. The ruling was a major victory for White and his attorney, Don Feare, and a major blow for the city, which for years has asserted that the claims contained in White's suit are completely without merit.
White filed suit against the city in May 2002, alleging that former APD Assistant Chief Jimmy Chapman transferred him from his plum assignment in organized crime and narcotics and then blocked his assignment to a joint federal terrorism task force, in retaliation for White's alleging (as had other officers) that Chapman may have interfered with the mid-Nineties drug trafficking investigation code-named Mala Sangre (Bad Blood). White is the sixth officer to file a whistle-blower action in connection with the defunct investigation.
The other suits, rolled into two combined actions back in 1997 and eventually settled by the city, were brought by the original Mala Sangre investigators, who alleged they were taken off the probe once they began investigating charges that certain Austin officers were involved in criminal activities and were aiding the drug traffickers targeted by Mala Sangre. (For more on this, see "Bad Blood," Feb. 15, 2001.) White argues in his court filings that his predecessors were reassigned in an attempt to thwart Mala Sangre and that he was then assigned to the operation alone as a "setup for failure." "It would have been impossible for one person to adequately handle an investigation of that scope and magnitude," White told the court.
Not long after White filed suit, in late 2002, the city asked for summary judgment to have the action tossed out. The request was denied, and the parties were told to do a little digging via a string of depositions in order to establish a more complete record on the matter, which in turn would offer the court something of substance with which to consider the city's request. The parties spent most of 2003 collecting deposition testimony from everyone from APD Chief Stan Knee and City Manager Toby Futrell on down.
The long list of depositions did little to support the city's contention that the whole mess was much ado about nada. In fact, they had the opposite effect, uncovering more nastiness and additional allegations of oppression, retaliation, and other various and nefarious activities by Chapman, with the seeming complicity of Knee and other top cops on the department's Fifth Floor. Among these was the allegation that Chapman had threatened Internal Affairs detectives in an attempt to have phone records removed from an IA file unrelated to Mala Sangre, but involving Chapman and his friend and fellow Mala Sangre character John Maspero, the now-deposed Williamson Co. sheriff. Chapman denied that allegation while being deposed under oath, which prompted Knee to hire an outside investigator to probe whether Chapman had committed perjury. The investigator who was paid nearly $30K for his service said that his findings were "inconclusive." The following day, Chapman announced his retirement.
Despite these and other allegations of misconduct revealed in the White depositions, the city's lawyers have pushed ahead, arguing that the whole mess should just be dismissed. To that end, the city represented by outside counsel Lowell Denton and two other attorneys with his San Antonio firm argued (again) last week that White never made a proper whistle-blower "report" to an "appropriate" source, as required by Texas law. White contends he made his allegations three separate times once to Internal Affairs, once to a local FBI agent, and once to Denton himself while the lawyer was interviewing him in connection with the previous Mala Sangre suits. But Denton argued that while White may have on each of these occasions made general allegations about possible corruption, he failed to provide enough evidence to support the charges. That failure, Denton argued, "prevents [White] from being a whistle-blower."
According to Denton, since White is a police officer trained in the art of investigation and schooled in the legal components necessary to bring a criminal charge he has to present more evidence to back his whistle-blower claims than would a regular citizen. Under Denton's interpretation of the statute and assorted case law, if John Q. Citizen, a civilian employee of the APD, were fired or demoted after alleging that Chapman may have interfered in a criminal investigation, he would have a valid retaliation claim. But for White (or any other sworn law-enforcement officer) that simple cause-and-effect allegation is not enough. "The bar is higher for police to report a whistle-blower [action]," he told Davis. "We contend that when you have an officer [as a whistle-blower] ... the elements of a [criminal offense must] be present" for the claim to be valid. In essence, White would have to supply investigative proof of an offense before he could be considered a whistle-blower. But, Denton was quick to note, that doesn't mean that White would actually need "probable cause" that a crime took place. "That's ridiculous," Feare said after the hearing. "You have to have an allegation and some objective proof that it happened. That is the definition of 'probable cause.'"
Although Denton presented his argument well, Davis wasn't buying, and encouraged the attorneys to set a trial date. "It is in everyone's interest that [the case] should move along," he said. Still, once a date is set, the parties must first attempt to mediate the case the city's last hope (and likely an extremely costly one) of keeping more potentially damaging details of the various allegations out of the public purview.
But even before that can happen, the city may still face one last (and, again, costly) roadblock. Since White contends that he made one of his three whistle-blower reports to Denton, Feare said he is considering filing a motion to disqualify Denton's entire law firm from defending the city against White's suit. The problem, Feare said, is that Denton failed to build a so-called "Chinese wall" between his involvement in the case and the other lawyers in his firm. Since Denton was privy to White's concerns about Chapman's conduct, the lawyer is a witness in the case and cannot represent the city. And since at least two other lawyers from Denton's firm have worked with him on the suit, Feare argues, the whole lot of them have been compromised a circumstance that would force the city to hire a new attorney to play catch-up in order to defend its interests in court.
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