Cop vs. Cop
Paulino Zavala looked like a scumbag. He had tattoos, sleepy eyes and a got-it-going-on attitude. On the street, real scumbags couldn't tell he was an undercover cop. He made it past the street's paranoia, busted his share of dealers and, until '96, was a rising star in the Houston Police Department's narcotics division. Then, claims the department, Zavala really did cross the line. An internal investigation found that he'd become what he appeared to be: a scumbag. A money launderer, they said. A dirty cop.
Zavala denied it all. His partner admits that Zavala sometimes bent the rules to make a bust. But according to Zavala's attorney, Zavala is really suffering retaliation, is being punished for breaking the department's "blue code of silence," for daring to criticize HPD from within.
A grand jury refused to indict him. HPD let him back on the force, but not back in narcotics. Zavala wants more.
It's not just the street that's paranoid. It's also the cops who work on the street.
The narcotics division, says a veteran officer, is a spy-vs.-spy world, a place where it's hard to know who to trust. "Officers are jealous of each other's cases and snitches," he said. "You don't dare leave any information on your desk."
On January 10, 1996, that distrust kicked into high gear. After a fairly routine arrest, a suspected dealer was charged with possession of four kilos of cocaine. Cops searched his apartment but didn't find drugs. What they found, though, worried them more.
At the suspect's home was a piece of mail, a credit union statement, addressed to Angela Puente. The name rang a bell; Angela Puente was a civilian clerk in the narcotics division. If Angela Puente had some connection to this dealer -- if she were somehow supplying him with information -- then security had been breached. HPD's Internal Affairs Department immediately launched an investigation.
Zavala liked Puente, and he helped her reply to internal affairs's list of questions. She wrote that she hadn't lived at the address for two years and had simply forgotten to file a change of address form with the post office. No one ever proved otherwise.
Two months after the bust, the supposedly secret investigation was described in the Houston Chronicle. The paper cited "police reports" and implied that Puente, referred to only as a "clerk" in the story, had violated department policy by using narcotics division computers for something besides police business: to retrieve criminal information about several citizens and to retrieve personal information about several narcotics officers. According to the Chronicle, the clerk had looked up some of the information at the request of an unnamed narcotics officer, an officer who was also receiving a hard look from internal affairs.
It's not clear whether Zavala was that officer. And it's also not clear why internal affairs suspected Zavala of leaking the information to the paper; neither Zavala nor Puente seems to have had anything to gain by making the matter public.
But according to Zavala's lawyer, Scott Newar, IAD forced Zavala to undergo three back-to-back polygraph examinations about the leak. Newar says Zavala passed all three.
Outraged, Zavala fired off a letter to then-police chief Sam Nuchia, himself a former head of IAD. Zavala accused IAD of racism and of coercion of a witness. He also suggested that IAD take a hard look at its own officers as possible sources of the leak.
By writing the letter, Zavala broke the blue code of silence. Fred Keys served 14 years in HPD before becoming a lawyer; now he often represents cops in disputes against the department. (He's not, though, on the Zavala case.) According to Keys, all officers know that breaking the code is dangerous.
"When an officer comes forward with a whistle-blower type thing," says Keys, "no matter what it may be, the department uses every official means within its power to make that guy's life miserable. As a result, officers are very reluctant to come forward. Everybody knows that if you buck the department, they're going to get you."
Soon after Nuchia received the letter, IAD laid a trap for Zavala.
Zavala had always been a maverick. Even his former partner admits that he had a reputation as something of a freelancer.
"As far as doing something illegal, I don't think he would have done that," says Officer John Garza, a friend of Zavala's. "There were times when maybe he should have told somebody what he was doing, just to cover his ass, because this is a cutthroat business.... At the most, he may have been guilty of bad judgment."
Whatever the quality of Zavala's judgment, he was a rising star in the narcotics division. He'd entered HPD's police academy in 1984, and after his graduation patrolled the streets of the Fifth Ward for four years. Promoted to the station's tactical response team, he spent another four years making small pot and crack busts, collaring streetwalkers and spot-checking clubs for liquor violations. He received both commendations and the nickname Pac-Man. The video game character gobbled yellow dots; Zavala gobbled drug dealers.
In '92 he moved to the department's central narcotics division and two years later was promoted to the unit's midlevel team. Instead of street-level busts, he worked more complicated cases involving larger quantities of drugs and suspects higher in the dope-dealing food chain.
He even participated in a sting operation to snare a lawman gone bad. In '94 rumor held that James Wesley Sims, a deputy in the Harris County Sheriff's Department, was robbing prostitutes and intoxicated illegal aliens -- people who'd never report him to the authorities. The sheriff's office asked HPD to help them catch Sims in the act.
One night in December, the sheriff's office dispatched Sims to handle a fake report of a man down in east Harris County. When Sims arrived at the address, he found Zavala, who convincingly appeared to be passed out drunk, the kind of lowlife who'd never report a cop to the police. Sims slapped Zavala around a bit then stole $160 from him. A few minutes later uniformed officers arrested the deputy. He pleaded guilty to theft by a public servant and possession of cocaine, and was sentenced to prison.
In February '96, five months before writing the letter to Nuchia, Zavala arrested Christopher Orzabal. Orzabal, a midlevel drug dealer, was a former repo man who resembled a surly brown Buddha in a baseball cap.
Orzabal was brazen enough to sell coke in the parking lot of Randalls supermarket, the one near Highway 290 and 34th Street. Working with the Department of Public Safety, Zavala went undercover to bust him. Zavala approached Orzabal's car and tried to make a buy. After flashing the drugs for Zavala to see, Orzabal got back in his car to drive to a rendezvous point where the money and drugs would be exchanged. But before he could get far, other officers pulled him over and arrested him.
Over the next few weeks, Orzabal frequently phoned Zavala from jail to say he'd like to work what's known as a "contract," a deal with the Harris County District Attorney's Office. In essence, a dealer agrees to work as a confidential informant to help police catch other dealers. If the dealer's information helps HPD confiscate a certain amount of drugs, the D.A. will drop or reduce the charges against him.
A few weeks after his arrest, Orzabal signed a contract agreeing to "make" nine kilos of coke by July. He fell down on his end of the bargain: By July, he'd helped Zavala, his police handler, confiscate only two kilos. And according to Zavala's attorney, even those busts were primarily due to Zavala. It was in Zavala's interest, says his attorney, for Orzabal to successfully fulfill his contract with the district attorney's office; if Orzabal did it, Zavala would also look good.
But even though he had not met the terms of his contract by August, Orzabal was still free because he had cut a deal to help HPD land something bigger than a piddling nine kilos of coke: He promised to deliver information incriminating one of its own officers. Orzabal threw in with HPD's Internal Affairs Department to set up Zavala for a fall. Once Zavala had gone undercover to bust Orzaval; now Orzaval promised to go undercover to bust Zavala.
Among the many murky matters in this case is how, precisely, the sting began. Last year, in a deposition, Orzabal appeared to suffer from serious memory loss. Throughout the three-hour question-and-answer session he repeatedly claimed that he couldn't recall key aspects of the investigation -- among them, what had prompted him to report Zavala's actions to the district attorney's office in the first place. He couldn't remember the accusation that he made, the accusation that supposedly set the sting in motion.
"All I remember," said Orzabal, "was that something wasn't right, and it involved drugs and money."
The two internal affairs officers who headed the Zavala investigation -- Lt. Richard Kleczynski and Sgt. Maureen Ramirez -- referred all questions to the city's legal department, which in turn referred the Press to the lawsuit case file. Likewise, both Nuchia (now a state appeals court judge) and current HPD Chief Clarence Bradford declined to comment.
According to affidavits filed in federal court by the city of Houston, Orzabal had claimed that Zavala had solicited a bribe: If Orzabal paid the cop $10,000, Zavala would give him credit for the seven kilos remaining on his contract. The under-the-table deal apparently offended him, so much so that Orzabal contacted the district attorney's office. The D.A.'s office then contacted HPD's Internal Affairs Department.
Whether Orzabal took it upon himself to contact the D.A., or whether the Internal Affairs Department somehow drafted the informant to help extract some vengeance against Zavala, the next part of the story seems clear: Orzabal agreed to wear a wire, and police set up surveillance of Zavala.
According to an August 4, 1997, letter from Chief Bradford to the Houston Civil Service Commission, the tapes of Orzabal's conversations with Zavala show that the cop enlisted the assistance of another of his snitches. Allegedly the second snitch was supposed to orchestrate a seven-kilo deal in such a way that Zavala could make an arrest and give Orzabal credit. The assisting snitch would receive $7,000 for his trouble.
On September 13, 1996, with money provided by internal affairs, Orzabal gave Zavala $3,500 in cash. According to the city of Houston, that money was a down payment, and Orzabal told Zavala that he'd gotten it by stealing, and then selling, a couple of kilos of coke. Zavala allegedly gave Orzabal tips on hiding from the drugs' previous owner.
Later that day at Caligula XXI, a topless bar in southwest Houston, the city says, Zavala gave the second snitch the $3,500 and, with Orzabal's hidden tape recorder running, the three men allegedly discussed how the deal would go down. During that discussion, police say, Zavala toyed with inflating the deal to 12 kilos but only reporting seven; Zavala allegedly told the two snitches that they could split the extra five kilos between them.
That deal -- if that was the deal -- was never consummated. The next day Zavala received a call from one of his supervisors, who said a warrant had been issued for his arrest. Zavala drove to police headquarters and turned himself in. He didn't want to be arrested at home, in front of his wife and three kids.
In court Zavala argued that he was set up, that internal affairs twisted his actions -- and Orzabal's tapes -- to make him appear dirty.
According to Newar, Zavala's lawyer, the cop did indeed take $3,500 from Orzabal, but only to facilitate a real drug bust. Beyond that, Newar refuses to comment; he says he's worried about a court order that prohibits him from disclosing specific information he obtained from IAD files.
In a sworn affidavit, a forensic audio expert helps discredit IAD's tapes of the conversations between Zavala and Orzabal. Barry G. Dickey of Arlington, Texas, is president of Graffiti Production and has served as an expert witness in several criminal cases, including the trial of Darlie Lynn Routier, accused of murdering her two small sons.
After inspecting the Zavala recordings, Dickey concluded that at least one had "butt edits ... [a] type of editing procedure that involves cutting the magnetic tape at a specific point and adjoining it to another piece of magnetic tape at a specific point." Dickey also swore that, though he did not have the opportunity to physically inspect all the tapes, the copies he heard also contained anomalies that made him believe they'd been altered.
The city of Houston maintains that there was never anything on the tapes that would bolster Orzabal's case. Even so, the city admits that at least one recording, a telephone conversation between Orzabal and Zavala, was spliced. Assistant city attorney Carole Snyder has written as much in a court filing. There's no explanation why the recording had been spliced.
In December 1996, a grand jury no-billed Zavala; he wouldn't have to stand trial. Pending the outcome of the grand jury investigation, HPD had suspended him without pay. Now, Zavala hoped, he'd be able to return to the narcotics division.
Instead, internal affairs began yet another investigation, this time to determine whether he'd violated department policies. He remained in paid limbo for another seven months.
Finally, in August '97 -- almost a year after his arrest -- internal affairs concluded its investigation. As stated in court documents filed by the city, IAD decided that "there was insufficient evidence to show that Zavala had engaged in money laundering." IAD did find, however, that Zavala had committed four infractions: mishandling confidential informants, interfering with the operations of the Harris County District Attorney's Office, engaging in inappropriate conduct and failing to use sound judgment. Zavala may not have broken any laws, the department concluded, but he was at least guilty of extremely bad judgment.
In his letter to the city's civil service commission, Chief Bradford described Zavala's scheme to help Orzabal fulfill his contract with the district attorney's office as being "of such a reckless nature" that the lives of informants as well as narcotics officers were put at risk. Department policy was also violated, wrote Bradford, because "at no time during the transaction did [Zavala] document his acceptance and transfer of the monies, nor did he inform any superiors or fellow officers about the transaction."
The letter states that Zavala was recorded telling one of the informants that his partner, Officer Garza, could not be included in the deal for fear he would ask too many questions, and that if the district attorney's office discovered the truth about the drug deal, they would consider him a "dirty" cop and he could be fired. Furthermore, the chief said that Zavala had violated department policy and potentially put officers' lives at risk by bringing Orzabal to a narcotics division party, where he introduced Orzabal as his cousin. (Zavala's lawyer says the decision to bring Orzabal to the party was more complicated than the city alleges.) Bradford closed his letter by charging that Zavala had "brought reproach, discredit and embarrassment to his profession and the Houston Police Department."
The chief offered Zavala two options: he could be fired and appeal his firing to the city's civil service commission or an independent arbitrator; or he could accept a two-week suspension without pay, be reassigned to street patrol and waive his right to appeal by signing what the city calls a Confidential Last Chance Agreement.
Zavala signed. Newar, his attorney, says that Zavala didn't really have a choice and should still retain his right to litigate. And in September '97, shortly after his two-week suspension, Zavala filed a civil rights suit in federal court.
Newar maintains that Zavala, by blowing the whistle on IAD's abuses of power, became the target of even greater abuse. "Our case," says Newar, "establishes quite clearly that the city of Houston -- the Houston Police Department under Chief Sam Nuchia -- had a code of silence and a policy and practice of retaliating against officers who broke the code."
In fairness, however, there does seem to be evidence that Bradford is making good on his pledge to rid the department of the unwritten code. [See "Breaking the Blue Code of Silence," October 8, 1998.] According to attorney Fred Keys, since Bradford appointed Assistant Chief C.A. McClelland to oversee internal affairs, complaints have diminished.
"Since that changeover took place, I have not seen or heard of any case, or even a perceived case, of abuse of power," says Keys. Maybe, he says, the problem's been fixed.
So far Zavala hasn't been able to present his case to a jury. This past September, almost two years after Zavala's arrest, United States Magistrate Nancy Johnson threw his case out of court. Johnson based much of her decision on Zavala's signing the city's last chance agreement; she concurred with the city's argument that Zavala waived not only his right to appeal the suspension but also his right to contest his treatment in any other judicial forum. She also concluded that Zavala couldn't prove that the altered tape recordings definitely contained evidence proving he'd been framed.
Still, Zavala's fight isn't over. He's appealed the case to the United States Fifth Circuit Court and is optimistic, given the Fifth Circuit's recent ruling on a similar case (see "Breaking the Blue Code."
Meanwhile, Zavala works out of the Magnolia substation, an old facility in east Houston where HPD often sends cops who've fallen from grace. Besides Zavala, there's Captain Bobby Adams, the former head of the homicide division, who was reassigned after a dispute with an assistant chief. And there's Officer Howard Larson, exiled to Magnolia after he filed a lawsuit accusing HPD officers of unlawfully searching his home and detaining him after an unsubstantiated report of domestic violence.
Zavala spends his workdays patrolling the streets, wearing a uniform, thinking about his glory days in narcotics. He still hopes to win his lawsuit. But he knows he'll never get his old job back. Some things the department will never forgive.
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