At Their Own Game

by Frank Zafiro

  Not a fight.

  An arrest.

  The cops that arrived were hesitant to act. They listened to my story and to his, and then because no one wanted to decide what to do, they called a sergeant.

  The sergeant was brand new, promoted just a few weeks ago, and nervous as a cat. He talked to each of the cops, then re-interviewed me and the security guy. The way he seemed to be struggling with a decision, I thought for a wild second that he might actually arrest me.

  He didn’t, but that ended up not being such a wild or crazy thought.

  Security Man and I were both sent on our way, and the sergeant ordered the officers to write detailed reports.

  That was a Wednesday. Thursday, I got a call from Internal Affairs, telling me that I was being investigated, and the chief was putting me on administrative leave pending the outcome of the investigation.

  “Investigated for what? Assault?” That was crazy. There was no way I could have known –

  “Robbery,” the IA Lieutenant told me.

  And, of course, that made sense. I’d used force to aid or abet the taking of property. Technically, that was robbery, but…

  “How can there be a robbery without any intent?” I asked.

  “I can’t talk about the case,” he said. “Get in touch with your union delegate.”

  I did.

  As a union delegate, Butch always seemed like a sharp enough guy.

  Then again, I never had any real union problems.

  One time about a year before, I got beefed on a demeanor. It was a pretty righteous complaint insofar as I did call the guy a piece of shit. I guess it didn’t matter that he was a prolific thief with a record dating back to diapers, which he also probably stole. I called him a piece of shit because he was stealing money from his own grandmother. The last person in the world who seemed to think he had some good left in him. But what I found out was that it didn’t really matter to the chief of police whether or not calling the guy a piece of shit was true or not. It only mattered that it was rude and unprofessional and the piece of shit in question decided to complain about it.

  Problem was, my demeanor complaint happened during a period of time in which one shit storm after another hit the department. Half a dozen officers were being investigated for excessive force in one case, sexual misconduct in another and racial profiling in a third. Major cases, with lots of media play. Most of the cases turned out to be complete bullshit, but they still ate up tons of investigative resources. My little demeanor slip up barely registered, so by the time Internal Affairs got to it, went through the mandatory interviews and sent it to the Chief’s office for disposition, the process took too long.

  Butch came in with a copy of the contract, said he’d grieve the finding if the Chief went through with a founded complaint, regardless of how light the sanction was. It didn’t matter, he said. “They gotta play by the rules,” he told me, pointing at the contract. “Everyone agreed.”

  The Chief clenched his jaw and glared, but in the end, the whole thing was dropped.

  In hindsight, the timeline thing seemed less like a stroke of brilliance and more like an Easter egg, but at the time, it gave me some hope to have Butch on my side for this so-called robbery beef I was facing now.

  We met at a quiet coffee shop that I’d never been to before. When I mentioned that, he nodded and smiled. “Yeah, cops never come here. Don’t have to worry about running into the brass, either. No one can overhear what we talk about. It’s a good place. I call it my office.”

  The coffee was shitty, but I suppose that was the price you paid for having a brass-free hideaway. I sipped the brackish brew while Butch went through my file with me.

  “See, here’s the thing,” he said. “There’s no intent.”

  “That’s what I told the IA Lieutenant.”

  He scowled. “Like he’ll listen. That fucker is too busy running his side business from his office. You don’t have to worry about him. What you gotta worry about is whoever they assign the case to in Major Crimes for criminal investigation. The IA dick will just piggyback off that, anyway.”

  “Who’s that?”

  “Kyle Falkner.”

  I stared at him.

  “What?”

  “You’re kidding me.”

  “No. Falkner was up. He caught the case.”

  “Shit. Can you change it?”

  He frowned at me. “You’re asking me if a union delegate can ask the Major Crimes sergeant to reassign a robbery case? No, wait…an Internal Affairs robbery case? Is that a real question?”

  “Yeah, it’s a real fucking question. Can you?”

  He shook his head. “Dude, I can’t even ask something like that without some compelling reason. And even then, they don’t have to do it. It’s an operational call.”

  I leaned back in my chair. “Fuck.”

  “What’s the problem with Falkner? Besides him being kind of an asshole, I mean?”

  I shook my head. “Doesn’t matter.”

  “It could. You got a personal issue with him?”

  “Yeah,” I said. “You could say that.”

  “What is it? Could I argue that he’d be biased?”

  “No,” I said. “Not biased. But motivated.”

  “What is it?” Butch repeated. He was looking at me more like someone interested in what I had to say for gossip value than how much it might help my case.

  “Old shit,” I finally said. “Not worth talking about.”

  Butch shrugged. “Okay. We’ll just have to look at his case work close, then. Make sure no bias shows up.”

  Detective Falkner was plenty biased, but not the kind I was in a position to complain about. His bias translated into hard, thorough work. He interviewed everyone he could that had seen any part of the altercation. He ended up with seventeen different witnesses who saw some piece of it or another.

  He asked the witnesses simple, direct questions, and all of their answers resulted in a clear picture of me being the aggressor.

  He asked questions that planted seeds, too. Did the witness have any knowledge of my relationship with the shoplifter? Did the witness know if we were acting in league with each other or not? Even when the answers to questions like this are all “no”, if you read the question enough times in a report, it starts to make you wonder. And no one knew who the little thief was, either, which would have cleared things up a lot.

  When I received a summons for an interview with Falkner, I contacted Butch right away. I knew they could make me come to the Internal Affairs interview and order me to answer questions, sure. That’s straight out of Garrity v. New Jersey . I’d be under the pain of firing if I refused, but nothing I said in that interview could be used against me criminally. But usually that IA interview came later, after the criminal investigation was completed. As far as the criminal investigation was concerned, I still had all of the same rights as every other American. And there’s a little thing called the Fifth Amendment that I planned to make use of.

  I decided I wasn’t going to the interview.

  “Ya gotta come for the interview,” Butch said. We were back at his ‘office’ again, drinking more coffee that tasted like it was brewed in an old oil can.

  “I don’t have anything to say.”

  “That’s up to you,” Butch said. “But you’ve been ordered to come to the interview.”

  “They can’t do that unless they give me Garrity.”

  “Yeah, they can. They can order you to attend the interview. They just can’t order you to answer questions.”

  “That sounds like bullshit to me.”

  “It’s the way it is.”

 
“Will the union attorney be there?”

  “She’ll be on the phone.”

  I gave Butch a hard stare. “On the phone ?”

  He nodded.

  “How much do we pay this lawyer, Butch? How much have I paid in dues over the last six years? And for that, I get her on the phone ?”

  “It’s a common practice,” he said, a little stiffly.

  “It’s a bullshit practice,” I told him, but there was nothing I could do about it.

  Butch shrugged at that. “All that being said, I’ve got a question for you.”

  “Shoot.”

  “Why not just explain what happened to Falkner? Maybe they’ll understand and drop the charges.”

  I stared at him. “Do you really believe that?”

  “Sure.”

  “Then let me ask you a question. If this were a situation where me just explaining what happened would solve things, don’t you think that conversation would have happened a lot earlier in the process?”

  Butch squirmed a little in his seat. “Yeah, I guess so.”

  “You… guess ?”

  “Yeah, I guess.”

  “Anything I say to him will just help his case,” I said. “And I don’t guess that. I know. And you should, too. You’re a detective, for Christ’s sake.”

  Butch frowned. “I still think it could maybe go the other way. Clear some things up.”

  “No.” I shook my head, my jaw clenching.

  “Why not?”

  “Because fuck him, that’s why not.”

  We went to the interview. Falkner was cool and professional, but there was a definite buzz of hatred coming off him. Maybe I was the only one who noticed.

  He clicked on his tape recorder, identified himself, the date and the time. He asked us to identify ourselves for the clerk who would eventually transcribe this interview, and give permission to be recorded.

  “Butch Atwood, union delegate. Permission granted.”

  “Tina Crowne, attorney for the police union,” came a voice from the telephone speaker. “You have my permission.”

  I leaned toward the recorder. “Officer Jake Stankovic. Permission granted.”

  Falkner frowned slightly when I spoke, but the expression quickly disappeared under the flat expression he maintained.

  He started his interview by calling me “mister” instead of “officer”. Every time he did it, I could feel the intent behind it.

  You’re not worthy of being a cop.

  This is going to be the end of the line for you.

  I’ve got you, motherfucker.

  I’d read the reports he’d filed already. Butch got copies almost as soon as they were filed, within a day at least. He asked me most, if not all, of the same questions he asked witnesses. Did I know the other person involved? Was this a planned event? He kept planting those little seeds. Even though I said, “I decline to answer on the advice of my attorney” to every question, I knew those seeds of doubt were going to take root.

  When the interview was over, he stood first. “I’m sure you’ll want to consult after this,” he said, before gathering up his notes and leaving. He said it as if he’d just proven that I’d been on the grassy knoll in 1963. Like now was the time I’d want to chat with my lawyers about how to cut a deal to avoid the electric chair or a perp walk with a Jack Ruby kicker.

  When he’d gone, I turned my fury on Butch and Tina. “How long have we been in here?”

  Butch shrugged, but Tina answered immediately. “An hour and twelve minutes.”

  It figured that the lawyer would know. Billable hours and all.

  “Seventy-two minutes?” I asked. “And in all that time, neither one of you had a single thing to say? No objections, no clarifications? Nothing? What the fuck?”

  Butch opened his mouth to speak, but Tina beat him to the punch. Her firm voice blared from the speaker phone. “It’s his interview, officer. And when you invoke the Fifth Amendment, it puts me in a difficult position to object to his questions since you aren’t going to answer them, anyway.”

  “This was a dog and pony show,” I said.

  Turns out I was wrong. The dogs and ponies were yet to come.

  SIX

  When Falkner trotted his case over to the prosecutor, I expected him to be in for a huge disappointment. I read the case, courtesy of Butch and Tina keeping me in the loop. I was no Major Crimes detective, but even a cadet at the Academy could see that he didn’t have probable cause for robbery. And even if he did, there was no way a prosecutor would be able to convince a jury beyond a reasonable doubt that I’d conspired with this unknown shoplifter to commit a robbery for beer and cigarettes. The public might be buying into some of the newspaper’s line about police corruption, but this was going too far.

  I should’ve never underestimated people where politics were concerned, though. Even though this was a shit case, the deputy prosecutor still signed it up as a robbery. There was simply too much pressure on the Chief and on the Prosecuting Attorney, who was running for re-election. Some of the other high-profile cases had been dumped, one lost at trial, and one had resulted in the guy being fired but then getting his job back via arbitration. Their record was hurting.

  Next thing I knew, I got arraigned in Superior Court on robbery charges. They did release me on my own recognizance after the arraignment, though. I thought that was nice of them.

  Tina had a closed-door session with the prosecutor a week later. She met with me afterward at Butch’s office. I turned down the offer of coffee. After she had a sip of hers, she made a face and pushed it away. So at least I knew she was smarter than Butch, who drank this swill like it was ambrosia.

  “That,” she said, “was the bloodiest meeting I’ve ever had with a prosecutor. What did you do to them? They want your hide.”

  “I didn’t do anything. I’m not a bad guy. The detective on the case hates me.”

  “Why?”

  I glanced around the near-empty coffee shop. Then I turned to her and said quietly, “I had a thing with his wife a few years ago.”

  She didn’t balk at that. “Well, that doesn’t help us any. His case is solid and professional. I can’t go into court and argue that this should be dismissed because the detective did a super good job out of spite because you once boinked his wife.”

  “Boinked?”

  “You know what I mean.”

  “It’s just…such an eighties word. High school eighties.”

  She shrugged. “I try to avoid the F word when I can. The cops I represent use it more than enough to make up for my lack thereof.”

  Suddenly, I really didn’t care about her speech patterns or word choice. What I wanted to know is what happened in her meeting. “Fine. How about the prosecutor? Did he say fuck during your meeting? Like how he was going to fuck me?”

  She shook her head. “He’s very sophisticated. I don’t think he talks like that.”

  “Really, I don’t give a fuck if he’s so classy he gets out of the shower to take a piss. I just want to know what he’s going to do with my case.”

  “He’ll take it to trial,” she said, “unless we cut a deal.”

  “Why should we cut a deal? He’s got nothing.”

  Tina drew a deep breath and let it out. “On paper, you’re right. The probable cause is slim. There are plenty of reasonable doubts, all of which I will bring up during testimony. But a trial doesn’t happen in a vacuum. The people in the jury know about the Tyler case, where two cops beat a homeless black man near to death.”

  “They were exonerated,” I said. “And that homeless black man was an assault suspect who was six foot seve
n and three hundred pounds and fought like a grizzly bear.”

  She shrugged. “What the potential jury pool knows is what was on TV and in the paper. Besides, there’s the other case where the cop was having the affair with the court clerk, then started stalking her when she broke it off. That was another black mark on the PD.”

  “ He broke up with her , and she stalked him, not the other way around,” I said.

  “Funny,” she said, her tone becoming a little snippy. “That’s not how it reads in the paper.”

  “The paper blows.”

  “People read it,” she said. “And don’t even get me started on the racial profiling that the two traffic officers were doing.”

  I leaned back, shaking my head. “That’s bullshit, too. Check their numbers.”

  “It doesn’t matter,” she said. “That’s what I’m trying to tell you. It doesn’t matter that I know they’re not guilty. It doesn’t matter that most of those cases were resolved in the officer’s favor. That doesn’t make the news, or if it does, it’s portrayed as a miscarriage of justice. What matters is that the people who are going to be judging you are going to know about all of those incidents. They won’t just be judging you on the facts of your case, they’ll also be judging you on how they feel about those cases.”

  “But—”

  “Some of them – not all of them, but some of them – will be looking to balance the ledger regarding what went wrong in those cases. To set the things right. And they’ll want to do it by making what they think is the right call in your case.”

  “What if I take the stand and testify? I can explain what happened to the jury.”

  She frowned. “You’ll look self-serving at this point. And after invoking the Fifth Amendment during the police interview, you’ll have zero credibility.”

  “But the facts are—”

  “The facts don’t matter. That’s what I’m trying to explain to you.”

  “But—”

  She held up her hand. “Stop, and listen to me for a moment.”