Unlike HPD, Cunningham traced a suspect's ID, 
    helping to free an innocent man.
Unlike HPD, Cunningham traced a suspect's ID, helping to free an innocent man.
Daniel Kramer

Three Days Too Many

An arbitrator has overturned a three-day suspension issued to a cop who caused an innocent man to spend 11 months in jail.

The flawed investigation also may have allowed the actual robbery suspect, Elijah "Ghetto" Joubert, to remain free to commit another holdup -- this one resulting in the killing of a police officer and a store clerk.

In a ruling late last month, City of Houston hearing examiner Harold E. Moore rejected the Houston Police Department's punishment of Senior Police Officer Elijah J. Beasley. Beasley testified that he even talked to the suspected robber and later police-killer during the robbery investigation, but did not know at the time that the man called Ghetto was actually Joubert.

Beasley "may have to bear the burden of knowing that if he could have associated Ghetto and Joubert as the same individual, he may have prevented the second robbery" (and murders), Moore concluded. To assess him a three-day unpaid suspension "is not warranted under these circumstances."

Beasley's initial investigation began in December 2002, just after a gunman robbed a west Houston convenience store and check-cashing outlet. A second robbery investigator told him that the face on the surveillance videotape resembled the friend of another man she was investigating. The store clerk picked Desmond Haye's picture out of a photo lineup, and Beasley soon had the case closed with an arrest.

Haye, mystified by the aggravated robbery charge, protested that -- at the time of the holdup -- he took his wife to work with his young daughter and then baby-sat the child (see "Truth and Consequences," August 26, 2004). He languished in jail for almost a year until private investigator Randy Cunningham was routinely assigned to the case shortly before trial in late 2003.

Cunningham, a former special agent of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, quickly noticed that the case file submitted by Beasley contained only a mention of key evidence; the clerk had recorded the license plate number of the getaway truck. There was no indication in the file that Beasley had followed up on that information.

Cunningham soon had traced the truck to its owner in North Texas, who said that while on a work trip to Houston, he'd lent it to a new acquaintance known as Ghetto. He had to report the truck stolen when Ghetto refused to return it, but got it back days later. Most important, Ghetto had possession of the truck when the robbery occurred, and the truck owner had never heard of anybody named Desmond Haye.

The private investigator determined that Ghetto was Joubert -- who bore a striking resemblance to the robber on the store's videotape. Also, Joubert was by then in jail on charges of being one of three men who held up another check-cashing outlet and convenience store. In that April 2003 robbery, veteran patrolman Charles R. Clark was gunned down, as well as clerk Alfredia Jones. Joubert was later convicted and received the death penalty.

Cunningham and defense attorney Denise Crawford approached prosecutors in the Haye case about their new evidence on Joubert. That's when they learned that Beasley had failed to act on other key information: Another officer had told him earlier that Joubert, in a jail photo, was wearing the same distinctive Vokal-brand hip-hop windbreaker as the robber in the Haye case.

Prosecutors dismissed Haye's robbery charge. Beasley later was transferred from the robbery division to the jail division. He appealed his suspension, which came for what the department called Beasley's failure to use sound judgment in his investigation.

The city attorney's office declined comment. Beasley's lawyer, Chad Hoffman, had tried to ban the Houston Press from the final arbitration session.

Hoffman said Beasley would have had no quarrel with counseling by HPD for what may have been lapses in the investigation, but that he was forced to appeal a four-page suspension order filled with "ridiculous and overreaching" assertions.

He disputes that a vigorous investigation by Beasley could have headed off the later killing of the patrolman. HPD didn't make Beasley the "fall guy" in that death, but the degree of discipline could have resulted from highly charged feelings over Clark's murder, Hoffman says.

"I think that due to the tragic situation, there were some emotions that ran with finding fault where fault could be found," the lawyer says.

Arbitrator Moore's eight-page ruling in some instances raises more questions about Beasley's actions. The officer says he did follow up on the getaway vehicle, although assistant City Attorney Ling Peng Garcia challenged some of those claims as undocumented by what was in the case reports.

Beasley said he traced the truck ownership to two brothers. He said he called another man known as Ghetto while posing as a friend of the brothers, and was told that one brother had lent the truck in exchange for crack cocaine.

Beasley "did not pursue this matter any further because he believed that it is common for white males (the brothers were Caucasian) to loan their vehicles for illicit drugs and then report to the Police that an African-American stole their vehicle," Moore's ruling states. (Joubert is black.)

Not addressed in the hearing was the underlying issue of whether Beasley even determined who had the truck during the robbery, regardless of whether there was a drug deal involved. There was no indication that Beasley followed up on the phone number or Joubert's street alias to try to discover his identity. And the innocent defendant at the time -- Haye -- was never interrogated about the information.

Moore found that Beasley acted logically in ending his quest for information about the truck. Garcia argued that the revelation of a crack deal "should have raised more questions than it answered and caused more investigation to be done."

Hoffman attacked HPD's disciplinary action as "Monday-morning quarterbacking" and "20-20 hindsight" regarding information later developed in the Joubert capital murder investigation.

The assistant city attorney said the suspension would be justified merely by Beasley failing to act after learning about the photos of Joubert in the Vokal jacket. Police officers, Garcia said, are sworn to protect citizens -- "and that also means protecting innocent citizens" like Haye.

"The city believes that three days [of suspension] is awfully light, compared to the 11 months for Desmond Haye," she argued.

Moore found that HPD has no specific protocol for criminal investigations, so officers rely on independent judgment. He said he would "never presume to suggest" how HPD should conduct a criminal investigation.

Based on the clerk's initial identification of Haye's photo and other factors, the arbitrator said Beasley reached logical conclusions. Beasley "had the responsibility and he carried it out as he saw it."

Private investigator Cunningham said he was sure the hearing examiner was well intentioned, but he believes Moore must not be knowledgeable about the basics of sound police investigative work.

"The question is simply one of using common sense," Cunningham said. "I only know that if Beasley was a federal agent, he wouldn't have had a three-day suspension -- he would have been fired for what happened in this case."


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