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The Case of the Missing Case

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.
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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.

"I think there has been so much bad press about the chief lately that he is concerned that if there is one more potentially newsworthy case that shows the police in a bad light, he would look even worse," says Burd.

Contreras referred questions to HPD's office of media relations, which issued a statement by Nuchia in which the chief dismissed accusations of a cover-up by him as "lies and innuendo."

"I don't cover-up anything," he said. "Never have, never will."
The committee member with whom Burd spoke, and who asked not to be identified in this article, confirmed Burd's account of the member's conversation with Contreras. The committee member also said he was told by Contreras that it was not the first time a potentially controversial case has been withheld from the CRC.

"I think the integrity of the review system has been compromised," says the panel member. "They are short-circuiting us. When it hits their fanny, they get uncomfortable, so they don't even project it into the proper procedure.

Annise Parker, who recently took over as chairman of one of the three CRC panels and is running for an open City Council seat, also is disturbed that the complaint was never forwarded for CRC evaluation. As a committee head, Parker was able to review the internal affairs report finding there was no cause to sustain the excessive force complaint. Parker declines to reveal the contents of the report, but says she believes that conflicting versions of the birthday party disturbance basically boil down to "a pissing match" between the police and the Russians.

"I don't believe either side," she says.
Parker says that as far as she knows, the Nizhniy's complaint was the only such allegation that was not sent to a full civilian review panel in 1994.

A police spokesman explains that Nuchia has 180 days from the time a complaint is lodged to take disciplinary action against an officer. The time period was about to expire on Nizhniy's complaint, the spokesman says, and therefore Nuchia had to pull the case from the normal review process to take disciplinary action on the complaint regarding the missing beeper -- the only complaint by the partygoers that was officially sustained by the internal affairs division.

Parker, however, says she's not sure she buys that explanation.
"If internal affairs misrepresented the facts, I would want to know that," says Parker. "That's a real serious concern. So far I have seen no evidence of that."

Another CRC member, Jan Rayburn, says she's confident the review process is functioning as intended.

I don't know of any [excessive force complaints] that haven't reached us," says Rayburn. "I do know that Nuchia is very responsive to our panel. And he wants to make sure that we do get to see anything that would have any controversy."

Nuchia denies he intervened to change the outcome of the internal affairs investigation.

"However, if I were to want to tell internal affairs to change something to sustain because I think the evidence is there, I have the authority and the responsibility to do that," said the chief. "And if on reviewing a case I say change it to not sustained because the evidence is not there, I have the authority. I am the ultimate authority in the police department. Just because a captain thinks a certain way, that doesn't bind me.

"The administrative discipline committee [comprising the three CRC panel chairmen and Contreras] recommends discipline. The CRC reviews them and gives their opinion if it's different. And all of those things finally reside in me. And I am responsible to the mayor and the people. I make the ultimate decisions since I am responsible. And I don't hesitate to do that."

Still, critics of the investigation say the probe should have been reviewed.
"Why was the 180 days allowed to expire?" asks the CRC member who spoke to Burd. "We [CRC] have had numerable cases that the time had elapsed, but we still received it and gave our opinion on it."

"This being an excessive force complaint, it should have been assigned to a panel," adds attorney David Jones, who represents McCarthy, the partygoer charged with aggravated assault of a police officer. "It's bizarre."

 

Last month Burd and Jones outlined their concerns in a letter to Mayor Bob Lanier that was also sent to members of the City Council. At least one council member, Judson Robinson III, expressed interest in the case and assigned a staffer to investigate. Meanwhile, a Harris County grand jury is expected to begin hearing evidence this week on how police behaved at Alexander Nizhniy's birthday celebration.


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