Cutting on the Bias

Testifying on the last day of the five-day arbitration hearing that will ultimately determine whether he'll get his job back with the Austin Police Department, former Detective Chris Dunn began to weep. His termination on the grounds of lacking impartiality and "bringing discredit" to the department, he said, has been the hardest thing his family has ever had to face. "I hope I could be a better police officer after this," he told the independent arbitrator who will decide his professional fate. "I like the job; I think [this is] a good community." Being a police officer, Dunn continued, is "what I want to do. I want to say, 'I am a police officer.'"

According to Police Chief Art Acevedo, that is no longer an option. During his testimony on April 14 and 15, Acevedo said that during Dunn's disciplinary hearing in November, he'd told Dunn that his actions, as an Internal Affairs investigator pursuing the inquiry into the shooting death of Nathaniel Sanders II by Officer Leonardo Quintana, had "put a stake through the heart" of the department. How, Acevedo wondered aloud, could he ever return to the force an officer who'd done something so damaging?

Centrally at issue was Dunn's May 13, 2009, e-mail to his IA colleagues – two days after the fatal shooting of Sanders – in which Dunn suggested that investigators obtain probationary records for Sanders and his companions the night he was killed (Michael Franklin and Sir Smith), to see if they were in violation of any probation conditions. If they were, Dunn wrote, the investigators could "make him/them a causation of the entire event. ... Guezz I am so smart I scare myself."

To Acevedo, the e-mail was explicit evidence that Dunn was proceeding with a bias against Sanders and in favor of clearing Quintana. Later, while investigating Dunn's actions, Lt. Mark Spangler found another Dunn e-mail that, on its face, seemed to suggest that Dunn was encouraging his colleagues to ignore asking Quintana certain questions suggested by Assistant City Attorney Mike Cronig, because the answers could give the city "more ammo" to criticize Quintana for any missteps he might have made the night Sanders was killed. Dunn was also criticized for that e-mail, though in each case Dunn insisted that he was not trying to encourage his colleagues to slant their inquiry in any way that would actually favor Quintana.

Despite these misgivings about the IA investigation, Acevedo ultimately cleared Quintana of any policy violations in connection with Sanders' death, save for the officer's failure to activate his in-car video camera and record the fatal interaction in the East Austin parking lot just after 5am on May 11, 2009. For that infraction, Quintana was handed a 15-day suspension.

Dunn was not so fortunate; on Nov. 5, Acevedo indefinitely suspended – that is, terminated – Dunn.

Dunn testified that he knows now that he made several missteps during the investigation – including the now infamous May 13, 2009, e-mail. But he insisted that the message wasn't what it seemed. Instead, he described it as just off-the-cuff brainstorming sent from his BlackBerry, that reflected only the evidence-gathering mindset of a criminal investigator (where causation is certainly relevant) – one who had only recently been transferred to IA before being tapped as a secondary detective on the Quintana case. He understands that the wording of the e-mail looks bad but insists he never had any biased intent. "I clearly did some things that don't look right," he testified. "It was several things put together that made the perception that I did something slanted." But that was not the case, he said. "I did not commit any type of bias in this case."

Whatever the merits of Dunn's defense, his weeklong arbitration hearing opened a window into the Sanders case and raised a host of larger questions – some perhaps more disturbing than whether Dunn was a biased investigator. Most particularly, it appears that the department, in its single-minded focus on Dunn, ignored other internal communications that appear at least equally biased. Yet Dunn was the only officer to face intense scrutiny and the only one to lose his job – raising an issue of disparate treatment.

That's a touchy subject that hasn't often reared its head since Acevedo replaced former Chief Stan Knee. On the other hand, in what has become a persistent departmental omission, Acevedo and his assistant chiefs apparently failed to properly train the IA investigators so that they could confidently handle such a high-profile inquiry. And at the end of the day, there remain troubling questions about exactly what happened the night Sanders was killed and whether there was anything Quin­tana or his fellow officers could have done that might have avoided that fatal outcome.

A 'Fiasco' and a 'Disgrace'

As the inquiry into Quintana's deadly interaction with Sanders got under way, the IA offices were under particular pressure. Although civil service law provides 180 days to investigate and take disciplinary action against officers involved in potential wrongdoing, Acevedo allowed IA just half that for the Sanders shooting – 90 days total to investigate and to transmit the findings through the chain of command and up to him for final review. The foreshortened deadline was intended to give the brass more time to thoroughly review the matter – partly because under Knee, such investigations tended to run down the clock near the deadline, giving administrators little time to consider what discipline might be warranted. In this case, however, the accelerated timeline made things rather crazy, said Dunn, who was one of three detectives working the case. Every day, he said, felt like "Black Friday at Wal-Mart."

For more experienced IA operatives the time pressure might not have been so difficult, but it was a problem for this inexperienced crew. At the time the Quintana investigation began, the lead investigator, Detective Shawn Harkin (who retired in November), had been working in IA for less than two months. Likewise, Dunn had been transferred to the unit only in mid-February and had completed only a single IA case before taking on a backup role on Quintana. Harkin, it turns out, had never completed a single IA inquiry before being tapped to head the high-profile and sensitive investigation into the Sanders shooting.

Harkin said he did the best he could with the tools he had available, including his slim IA experience; he testified that he was "a little shocked" to be assigned to the case, considering his limited knowledge of "policies and procedures of IA." Beyond their short tenure, none of the detectives was ever given any specialized training on how to conduct IA reviews. Although both Harkin and Dunn (and the third investigator, now-Sgt. Andy West­brook) had years of experience as criminal investigators, neither had any familiarity with the particulars of conducting in-house administrative inquiries – looking into potential violations of policy and procedure by fellow officers – which are, by their very nature, quite different in character from criminal inquiries.

"The administrative investigation is unique," said Cmdr. Donald Baker, who now leads the unit. Although the department provides specialized training for many investigative assignments – e.g., sex crimes or homicides – it has done very little to provide any extra skills-development for its IA detectives. Moreover, Harkin said he and Dunn had asked supervisors for training but never received it.

Harkin and Dunn testified that the sum total of their training in IA before taking on the Quintana case consisted of being shown where old case files were kept and being told to review those for details on how such inquiries were done. "That was the instruction," Harkin testified. (The city's lawyer, Connie Acosta, downplayed the potential significance of failing to provide IA investigators with any specialized training, but Baker said that since taking charge over IA late last year he has sought training not only for himself but for the sergeants now assigned to investigate internal cases.)

Nevertheless, both Harkin and Dunn said they thought they did a very thorough investigation into Quintana's actions leading up to Sanders' death. And it wasn't until after they'd completed the investigation and it had been approved by their immediate supervisors – Sgt. Patrick Connor and Lt. Abby Rodriguez – that Harkin or Dunn said they'd heard any criticism of the results. That criticism came when their commander, Charles Johnson, returned from vacation in late July and read through their completed work. Johnson testified that he was startled by the poor quality of the work the investigators had submitted. "We knew how big a case this was," Johnson said, and how important it was to "do the best investigation we could." In Johnson's judgment, the IA work was a "fiasco," he said. "I think it was a disgrace to the department."

In part, Johnson said, he was unhappy about a series of "leading questions" the detectives had posed during their interview with Quintana. Instead of asking direct questions about what he'd done and what he'd perceived on the morning Sanders was killed, Johnson thought the detectives often led the officer to answers that might show he'd acted well within policy when he confronted the sleeping Sanders inside the car driven by Franklin. The impression concerned him sufficiently to raise the matter with Acevedo. "Chief," Johnson recalled saying, "there are a ton of leading questions in this case." Acevedo recalled the conversation as well, adding that Johnson "assured us he was on top of it."

Johnson's solution was to rewrite a good portion of the investigative summary the detectives had prepared while also rejecting several of their recommendations regarding whether certain potential policy violations should be sustained. Notably, Johnson determined that Quintana had failed to identify himself as a police officer before confronting and trying to wake Sanders and that Quintana had failed to use proper tactics when approaching and waking Sanders.

According to Dunn, he believed that Quin­tana's possible failure to identify himself should be considered "inconclusive" – there just wasn't enough evidence one way or another, though he felt it was possible Quintana had not done so; Harkin felt Quintana should be "exonerated" on the charge. As for tactics, both detectives testified that they felt Quintana should be cleared of wrongdoing. Those conclusions – along with one related use-of-force allegation, which none felt should be sustained – were read and signed off on by the sergeant and lieutenant overseeing the inquiry.

Johnson, however, disagreed – strongly, it seems – in particular with the conclusion related to tactics, and he reported that disagreement to Acevedo (see "Uncoordinated and Exposed").

Harkin and Dunn, on the other hand, argued that Quintana should be cleared, because the records of his training at the academy and afterward demonstrated that the officer did not deviate in any significant way from what he'd been taught by the department. Ultimately, in a Sept. 14, 2009, memo to Acevedo, Dunn concluded that perhaps the department as a whole needs to mandate continuing training for all officers. That's a finding echoed by several other official reports regarding the APD, including a 2004 report written by the Police Executive Research Forum, as well as last year's use-of-force recommendations from the U.S. Department of Justice.

The two detectives disagreed with Johnson, but, as Dunn put it, they were aware that John­son, a former SWAT member, was "an expert" on tactics. Moreover, he was their supervisor, and it was his prerogative to change the disciplinary recommendations as he saw fit. All agreed that disagreements within the chain regarding recommendations in IA cases are not uncommon; ultimately, what counts is the decision of the chief of police.

In the end, Acevedo performed another reversal. He rejected Johnson's recommendations and concluded that Quintana should be cleared on all counts, save for failing to turn on his in-car camera. That meant he had for the most part concurred with the recommendations arrived at by the original IA investigators. During his testimony, however, he noted that just because he didn't sustain the allegation about Quintana's tactics didn't mean he necessarily agreed with Dunn and Harkin and disagreed with Johnson. Johnson "was questioning the tactics, and I was questioning the tactics," Acevedo said.

Nonetheless, Acevedo concluded that while Quintana's tactics were not "optimal," they "did not rise to the level of a policy violation." When you "drill down to all the facts in the case," he said, Quintana might not have been "perfect" or "the way I would have done it," but based on his "mindset" and the "facts he had available," Acevedo determined that Quin­tana had proceeded reasonably.

KeyPoint Finds the E-mail

Although neither Johnson nor Acevedo particularly cared for the quality of the IA detectives' work, no one, including Johnson, ever raised questions about the IA investigation or the work of Dunn in particular possibly being biased – until Dunn's May 13, 2009, e-mail was plucked from a ream of documents provided to KeyPoint Government Solutions, hired by the city to conduct an outside review (upon the recommendation of the Citizen Review Panel) of the IA inquiry.

When the IA investigation had been completed, the summary conclusions were passed on to the CRP. Ultimately, that panel requested an outside investigation, prompted by concerns the body had about possible bias in the inquiry, evidenced by the use of leading questions, according to a memo from the panel to Acevedo.

The request was approved, and KeyPoint was hired. The city had used the company's services previously to review an unrelated officer-involved shooting. Its review of the Quintana case was based solely on documents already amassed by the department. The review panel had already reviewed the documents earlier, but amid the large volume of paper, Police Monitor Cliff Brown acknowledged later, no one had noticed the embarrassing Dunn e-mail.

On Sept. 28, 2009, KeyPoint's president, Jeff Schlan­ger, informed Assistant Police Monitor Renita Sanders of Dunn's May e-mail. The e-mail was reviewed by Brown and Acevedo; in firing Dunn, Acevedo wrote in a memo that, in part, the two men were "concerned with the apparent and perceptible semblance of bias articulated in the body [of the e-mail] and the utter lack of impartiality displayed by Det. Dunn who expressly divulged his intent and desire to make the occupants of the vehicle the cause of this deadly encounter." It would seem that conclusion was drawn solely from the face of the e-mail, before Dunn had ever been questioned about it.

On Sept. 30, 2009, KeyPoint filed its report with the city, in which it concluded that bias had permeated the IA inquiry in a way that "undermines the credibility of the investigation and the confidence which the Department and public have placed in them." The report as released to the public was heavily redacted, and to date, the city has not released the full document, so it's hard to know exactly how much of the perceived investigative bias the company attributes to Dunn. (A lawsuit seeking release of the document has been filed by the Texas Civil Rights Project, and a court hearing on the matter was held Tuesday, April 27. For more, see "Sanders Report.") The KeyPoint conclusions (some of which Acevedo has said he disagrees with) prompted him to initiate a review of Dunn's actions, conducted by Lt. Mark Spangler.

Following a Nov. 5, 2009, disciplinary review hearing, Dunn was fired. Testifying at Dunn's reinstatement appeal hearing earlier this month, Acevedo acknowledged that during that review, Dunn was "very contrite, apologetic." He "took full responsibility for his actions. He absolutely did not try to minimize the impact of his actions," Acevedo said. Indeed, Acevedo said that Dunn was "very truthful" when discussing how what he'd done had created a perception of bias, although Dunn insisted he had no "intent" to be biased. Acevedo said he believed Dunn's explanation was, in fact, an honest one; honesty was never an issue in this case, both Acevedo and Spangler testified – but that didn't change anything. "We cannot afford the perception of bias," Acevedo said, because "[I] can't read his mind; I can't read his heart. ... It's what is in black and white – you can't take that back."

The Uneaten Doritos

However, it's not clear how Acevedo applied that principle in simultaneously deciding that no other investigator had displayed any bias in the IA investigation. For example, the lead detective, Harkin, told Spangler that he felt that Assistant City Attorney Mike Cronig's questions about the case were "fricking ridiculous" and that he thought Cronig should "stay the hell out of the investigation," Harkin acknowledge during his testimony. Moreover, as the lead investigator, Harkin was primarily responsible for conducting the interviews with Quin­tana and the other officers – and therefore had a direct role in asking the leading questions that supervisors were later so concerned about – yet no one ever called Harkin to task for that, not even Cmdr. Charles Johnson.

Ultimately, Harkin received a written reprimand for failing to avail himself of all possible resources in the investigation – that is, for not asking the Cronig questions (even though Johnson had told the investigators, when asked by Sgt. Patrick Connor, that they did not need to do so). Similarly, Connor received an oral reprimand for failing to adequately supervise the investigation. Moreover, Johnson testified at Dunn's hearing that he believed Harkin and the third partner on the case, Westbrook, were also biased – yet he never reported that to anyone, including Acevedo.

In the end, Dunn was the only one to be dismissed for his actions, even though, by all accounts, his role in the actual investigation had been limited. In fact, Dunn was responsible only for writing up several portions of the investigation – including recording the physical evidence found at the scene and the background of the individuals involved in the incident. Johnson testified that those two portions of the report required only "minor changes," mostly grammatical.

According to Acevedo's hearing testimony, the difference in punishment meted out to Dunn, Harkin, and Connor has a simple explanation. Dunn was the "only one [I] know of from the onset of the investigation who demonstrated in writing his bias," he testified. When Acevedo was confronted with the existence of the May 13, 2009, e-mail, he said he thought, "Oh, shit, this is not good" and "Why put this on paper?" "My reactions were very negative."

Despite the chief's distinctions, Dunn was not the only one to put questionable comments on paper – just the only one thus far discovered doing it. For example, in an e-mail written just four days after the Sanders shooting, and subsequently obtained by the Chronicle, Detective Cliff Rogers of the Special Investigations Unit, who was heading the criminal inquiry into the shooting, wrote to a colleague suggesting that perhaps Sanders and Sir Smith (the other passenger) weren't actually asleep when Quintana approached the car. Because Sanders had cannabinoids (evidence of marijuana) in his system and a bag of weed was found in the car as well as a partially eaten bag of Doritos, Rogers suggested that it would be unlikely that a stoned person would fall asleep before finishing off the bag of chips. "Okay, I know it sounds crazy," he wrote, "but I think we need to look into the posibility that the shit heads were not sleeping. I do not believe that pot heads would not eat all [the] daritos."

Rogers' profane speculations would seem at least as much evidence of investigative bias as those of Dunn, and not even Quintana had suggested that Sanders might have been awake when the officer initially attempted to rouse him from sleep. Judging from the official nonreaction, presumably none of the investigators noticed Rogers' e-mail among the reams of accumulated documents. Moreover, other APD staff were receiving these (at minimum) unprofessional communications but apparently found them unworthy of further notice or report. At a press conference in November 2009, after he'd fired Dunn, Acevedo assured reporters that Dunn's bias had not actually affected the results of the IA investigation, in part because it had been based on work done by the criminal investigators, Rogers among them – and that work, he said, was clean.

But since the public does not have access to the entire KeyPoint report or other documents, it's very difficult to know the whole story. That also means the larger question remains: Is Christopher Dunn in effect taking the fall for an entire investigation that was personally and structurally biased to exonerate Quintana?

In his opening argument, Dunn's attorney Tom Stribling addressed the independent arbitrator, Thomas Cippola, and said that the case Cippola must decide is really a "very simple case wrapped in a mound of documents." In truth, the IA investigation was "exhaustive," Stribling argued, and at the end of the day, Acevedo agreed with IA detectives that Quintana should not be disciplined for most of the allegations of misconduct brought against him. "Not a single person raised any issue with the thoroughness or impartiality" of the work Harkin, Dunn, and others had done "until KeyPoint found one e-mail ... and from that time forward" the official focus landed on Dunn.

Rightly or wrongly, it seems that is exactly what happened. "Why was he the one singled out to be indefinitely suspended in this case?" Stribling asked. "If there is blame, there is plenty of it to go around."

A decision on whether Dunn will get his job back is expected by June.