The Case of the Missing Case

What good is a review committee that doesn't get to review?

 Editor's Note [January 28, 2015]: Alexander Nizhniy says his country of origin was misidentified in this article and that he was Ukrainian, never Russian. He has since become a U.S. citizen. He also says that most of the people at the party were Ukrainian.

The Houston Police Department was strapped with a serious public relations problem in 1990. A spate of controversial episodes -- most notably the questionable shooting deaths by police of two motorists, Byron Gillum and Ida Lee Delaney -- had created an uproar reminiscent of that surrounding the notorious cases of brutality and malfeasance that had tarnished HPD's reputation back in the late 1970s.

In response, then-mayor Kathy Whitmire issued an executive order in May 1990 creating the Civilian Review Committee. The CRC, as it would become known, was to consist of three seven-member oversight panels appointed by the mayor. The panels -- which would have no legal powers, such as that of subpoena -- would review complaints of police misconduct, including all allegations of the use of excessive force by officers, and all incidents involving the discharging of firearms by police. Their recommendations would be submitted to the chief of police.

The CRC was controversial at the outset. Rank-and-file officers denounced it as an anti-police vigilante posse. Police critics pointed out that the panels had no teeth and that the chief was not obliged to act on their recommendations.

But for most of its four-and-a-half years of existence, the CRC has operated quietly and relatively free of controversy. Recently, however, two CRC panel members have raised questions about the purpose and integrity of the review process in light of the fact that an excessive force complaint lodged against an officer last summer was never scrutinized by any of the three panels.

The excessive force complaint -- as well as allegations of improper conduct and mishandling of property by officers -- arose from a disturbance at a party at a southwest Houston apartment complex last May that was attended by 15 or so people, most of them Russian Jewish immigrants.

The party, which was thrown by roommates Alexander Gutman and Alexander Nizhniy to celebrate Nizhniy's birthday, was interrupted when wrecker drivers began towing away some of the guests' cars. The tow-truck operators called police to the scene after complaining of being harassed by some of the partygoers. Shortly after police arrived, one of the guests, Mike McCarthy -- who claims he was only interceding as a peacemaker on behalf of the Russians -- was arrested for aggravated assault of a police officer, Matthew Whitmore. As Whitmore and McCarthy struggled, an emergency "assist the officer" call went out over police radios. Twenty-five to 30 officers soon arrived at the complex. Nizhniy, meanwhile, had retrieved a camera and had begun snapping photographs as Whitmore and two wrecker drivers wrestled McCarthy to the ground.

Nizhniy then retreated to his apartment, where he claims he was followed by several officers demanding to know, "Where's the camera?" According to Nizhniy and other partygoers, the police began ransacking the apartment in search of the camera. The witnesses also claim that several guests who were arrested by the officers for public intoxication were only watching television, and that some of the officers grazed at the party's buffet table while in the apartment. Some of the prisoners were then allegedly placed on the hoods of patrol cars -- their faces pressed against the hot metal -- and asked about the location of the camera, which Nizhniy had hidden.

Nizhniy says one of the officers eventually located a camera, albeit not the one he was searching for. After the film was removed, eight of the partiers, including Nizhniy, who was charged with public intoxication, were taken to a westside police storefront and booked.

In June, Nizhniy and others arrested at the party filed complaints with HPD's internal affairs division, which initiated an investigation. Nizhniy complained of being slammed against a car hood and a fence by officer Paul May. The civil rights division of the Harris County District Attorney's office began its own probe of police conduct in the incident. Many of the depositions were given in the office of lawyer Gene Burd, who represents those arrested for public intoxication at the party -- including himself.

Burd claims that the lead internal affairs investigator in the case informed him in October that Nizhniy's excessive force complaint against the officer had been sustained. However, not only did the internal affairs division formally conclude its investigation by not sustaining the complaint, police admit the excessive force allegation was never reviewed by any of the three CRC panels -- a direct contradiction of the review committee's official statement of purpose, which says that the CRC shall review "all those [cases] involving allegations of excessive force...." The only complaint from the incident that was forwarded to a CRC panel was the allegation of mishandling of property by police, which arose from the loss of a beeper by one of the partygoers, according to Burd.

"Basically it's a cover-up, it's a cover-up going all the way up to the chief [Sam Nuchia]," charges Burd, himself a Russian immigrant who came to Houston 17 years ago. Burd says he was told by one CRC member that assistant HPD chief Art Contreras, who oversees the internal affairs division, claimed that Nuchia would not allow the case to go to a committee.

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