Allegation of sex act languishes
Craig R. McCoy and Nancy Phillips, Philadelphia Inquirer
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When Philadelphia Police Officer Annamae Law arrived at district headquarters, she says, the place was buzzing.
" 'You should have been here,' " she said one officer told her. " 'You missed the show.' "
Here's what she missed, according to sworn statements of two women: An officer in a Fishtown police station had forced them to put on a sex show in a jail cell, ordering them to expose their breasts and kiss as a price of release.
"It was so uncomfortable and degrading," Erica Hejnar, one of the women, said in an interview. "I couldn't believe it was happening. I kept saying, 'Why are you doing this to us?' "
Today, three years after the women reported this bizarre episode, the case remains open. Even though an outraged Law says the "show" was the talk of the station house, no officers have been arrested or disciplined.
The allegations highlight a persistent but hidden problem in law enforcement: police officers who use their badges to exploit women or extort sex, and departments that fail to vigorously investigate such abuse.
As The Inquirer reported yesterday, police departments have done little to either track sexual misconduct or stop it from happening, in spite of hundreds of examples around the country.
In Philadelphia, at least eight other people have complained of being sexually assaulted in police holding cells, according to a decade's worth of Internal Affairs reports released in federal court.
In one, a woman picked up for shoplifting said an officer entered her cell, rubbed his penis between her breasts, and ejaculated. Investigators said they could not prove it happened; the seven other complaints also were discounted.
In Hejnar's case, the department and prosecutors let an internal investigation languish for years.
Some key questions were not asked, and some contradictions in the officers' accounts remain unresolved, according to an Inquirer review of the investigation's case file.
When she heard the chatter about the two women, Law told investigators, she exploded in anger in the middle of a crowded room. She identified officers who were nearby.
But those officers told investigators they didn't recall any angry outburst. As for a sex "show," they said, they heard vague rumors or nothing at all.
To be sure, the investigation ran into problems: Shown photos, Hejnar picked the wrong officer. The other woman could not identify anyone.
Last month, after Inquirer questions about the delay, prosecutors finally ruled out criminal charges. That cleared the way for possible discipline by the city.
Police Commissioner Sylvester M. Johnson would not comment, citing "an open investigation."
Hejnar's lawyer says it is unforgivable that, after three years, the abuser has not been held accountable.
"The blue wall went up," said Hejnar's lawyer, Musa R. Keenheel. "Something definitely happened. We just couldn't prove who it was. We couldn't get past the blue wall."
A street drug sweep
The night they were picked up, Hejnar and a friend had just left a church soup kitchen. It was a warm night in a drug-ridden part of town. Five plainclothes officers from the Narcotics Enforcement Team were set up near Front and Dauphin Streets, hoping to trap dealers.
About 7 p.m. on Wednesday, Sept. 3, 2003, they moved in, grabbing a pair of dealers, a buyer and eight bags of heroin.
They also arrested Hejnar, then 24, and her friend, then 27. One of them was talking with the dealers, arrest papers say.
Nowhere on those documents do officers say they saw the women get drugs - typically a legal requirement for a narcotics arrest in Pennsylvania.
Hejnar admits a past addiction to painkillers, but contends that she did not try to buy drugs that night. She was arrested in 2004 and accused of selling narcotics outside a drug-treatment center. The charge was dismissed.
Officer Law patted down the women on the street and found no drugs. The women were taken to the squat brick headquarters of the 26th Police District at Girard and Montgomery Avenues, and locked in a cell behind a door - one not visible from the main squad room.
Law searched them again, and again found nothing. She went back on the street, assuming that the women would be released.
After Law left, the women said, a burly male officer sat on a bench outside the cell and took down their names and addresses.
Then, the women say, he began to taunt them.
" 'What, are you a couple?' " Hejnar said he asked.
" 'If you girls want to get out of here, you'll do what I want you to do. I want to see you two kiss. I want you to feel each other's breasts."
Her friend gave a similar account.
"First we said no, and after a couple of times with him persisting we would not be released unless we kissed, we did," she told Internal Affairs.
The Inquirer is not identifying the second woman, who declined to be interviewed. The newspaper's policy is not to identify victims of alleged sex crimes without their permission. Hejnar said her name could be published.
At one point, Hejnar said in an interview, a second officer peered around the doorway. He smirked but said nothing.
"We thought he was going to help us," she said. "I know he knew something was wrong because he saw how scared we were."
They bared their breasts and fondled each other, but the first officer kept escalating his demands, finally telling them to perform oral sex on each other, the women told investigators.
" 'I want to see more,' " the officer said, chuckling, Hejnar recalled in an interview. " 'I haven't decided if I'm going to let you go home yet tonight. I want you to be more raunchier.' "
Her friend told Internal Affairs: "He just kept going."
Hejnar said the officer finally backed off after she began to sob uncontrollably.
"I'm pretty happy with what I saw," he said. "I'll let you go."
After about 40 minutes behind bars, the women were released. They were never charged with a crime.
As they walked away, they discovered that $20 was gone from Hejnar's purse. They went back inside and demanded their cash, but they said their abuser came to a counter window and, swearing, yelled at them to leave before he changed his mind.
Without money, they begged a SEPTA ticket clerk for a bus transfer and a token for the Frankford El.
After arriving at the homeless shelter where she was staying, Hejnar called 911 and, by midnight, had filed a complaint.
"She was traumatized by the situation she went through," the officer who took the complaint told Internal Affairs.
Several weeks later, detectives began interviewing members of the narcotics squad and other officers who were inside the station house that night.
The strongest corroboration for the women's story came from Law, a 26-year veteran who recently won a community policing award from the Philadelphia Daily News. Law declined to comment for this article; her account is drawn from her Internal Affairs statement.
When she returned to the station and passed Officer Edward Markowski in a hallway, he said: " 'You should have been here. You missed the show.' "
Officer Norberto Cappas was louder, regaling "an audience" of other officers, Law recalled.
"He said that the two girls were playing with themselves... . As [if] it was funny."
Law said she lit into Cappas, cursing him.
" 'Why would you allow something like that to happen in this house?' " she recalled shouting. "I told him this is the captain's house, not his house."
Hearing her curse at Cappas, another officer, Doreen Napper, shook her head in disgust, according to Law.
"Do you believe this s- is going on?" Law asked.
"They wanted me to go back there," Napper replied, in Law's account.
In all, Law identified five other officers who were nearby when she had her blowup.
When questioned by Internal Affairs, four said they never heard it. As for the alleged sexual display in the cell, they knew next to nothing.
"I don't know anything," Officer Geneva O'Neal said.
"I don't recall any of her remarks," Sgt. Shawn Gushue said.
Napper said she did not know what happened in the cell block, and denied that she had been upset or had been asked to watch.
"Police Officer Law said to me that she heard two girls were touching each other," Napper said, but didn't remember any yelling or anger.
Markowski told Internal Affairs he never saw anything himself, but heard later that night that "two females were touching and kissing each other in the cell block."
"I don't recall who said that," he said.
The transcript shows that Markowski was not asked whether he told Law that she "missed the show."
Likewise, a transcript shows that Sgt. Oscar Martinez, the drug squad leader and fifth officer identified by Law, was not asked what he knew about the abuse allegations, nor about any station house brouhaha. His interview focused on the women's arrest.
Cappas - the officer who drew Law's ire - was the only drug squad member not interviewed by Internal Affairs, the file shows.
In sworn statements, two officers said Cappas was in the cell block filling out paperwork about the women. His signature is on a form documenting that they were stopped by police.
"Did you observe any officer speaking to these females?" an investigator asked Markowski.
"Just Cappas," he responded.
Investigators did find evidence to confirm the women's account of the missing $20.
After Hejnar complained, Gushue said, Cappas told him he found the $20. Where? an investigator asked.
"I never asked him," Gushue said.
The women insist that they never got the money back.
The investigation foundered when the women were unable to pick out the abuser from photos of 26th District officers. Hejnar pointed to an officer who was off duty and, Internal Affairs found, not in the station house that night. Her friend was uncertain.
Hejnar said they were shown small, dated, black-and-white photos.
"I think they should have given me a chance to identify him in person," she said. "The pictures they showed me were ridiculous."
Officers did not respond to letters seeking comment. Reached on his cell phone, Cappas would not answer questions, and did not respond to two letters.
A Catch-22
Until The Inquirer began asking questions this year, the case remained frozen, stuck in a Catch-22.
The District Attorney's Office did not file charges but kept the criminal file open. And the Police Department's policy is not to move forward with internal discipline until prosecutors rule out charges.
The department holds off for fear that its disciplinary process could undermine or muddy a prosecution. The trouble was, for three years, the District Attorney's Office made no decision either way.
Last month, after reporters raised questions, prosecutors finally resolved the issue.
On July 12, a prosecutor wrote a one-sentence memo to Internal Affairs: "This office does not presently intend to pursue criminal charges against Police Officer Norberto Cappas."
The women's failure to make a photo identification was "the primary reason," according to Assistant District Attorney Christopher Mallios, who until recently was chief of the sexual-assault unit.
Police will not talk about their investigation, except to say it remains open.
Lawyers who are experts in civil-rights cases say the long delay means that any charges will be tougher to prove.
"Memories fade, people move on," said David Rudovsky, a lawyer who has sued the department in other cases. "It does not make it impossible, but it makes it more difficult for IAD to do the kind of investigation they need to do."
Hejnar's civil case was settled this year when the city agreed to pay her $17,500.
A lawyer for the city, Michele Dean, wrote in a memo that she believed the city had little legal risk from the jail-cell allegations. She said the city couldn't be held responsible for abuses committed by rogue officers.
But, Dean added, the city could have problems for "an arrest without probable cause." In recommending a settlement, she said police were wrong to jail the women when "no contraband was found on them while on the street."
Hejnar said she still hopes someone will be held accountable for what happened in that cell.
In the handwritten complaint filed hours after her release, she wrote:
"Hopefully, by me coming out I will save other girls from having to go through this.
"I just hope he gets what he deserves for treating women like pieces of meat."
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