Delano guilty of disciplinary charges
60-day suspension is recommended
Published: May 06, 2009, 7:53 am
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Dennis A. Delano, the Buffalo police cold case detective who released information about the Lynn DeJac case against the orders of his superiors, has been found guilty on all departmental disciplinary charges.
Hearing officer Thomas M. Rinaldo, taking into consideration Delano’s 24 years of service on cases including the hunt for the Bike Path Killer, recommended a 60-day suspension without pay instead of termination.
Whether Delano survives the Buffalo Police Department’s efforts to fire him will not be known until a penalty hearing is held, possibly as soon as Thursday.
Police Commissioner H. McCarthy Gipson now will decide whether to go beyond Rinaldo’s recommendation and fire Delano for releasing confidential police files and video in the death of Crystallynn Girard. DeJac, Crystallynn’s mother, spent nearly 14 years in prison for her wrongful conviction in the case.
“I’m not sure he wants to come back,” Gipson said of Delano at a hastily scheduled news conference Tuesday afternoon to announce Rinaldo’s decision.
The hearing officer found Delano guilty of all the department’s charges of insubordination for refusing to stop investigating the Girard case and releasing case details.
Delano is eligible for a retirement pension. Steven M. Cohen, Delano’s lawyer, went back and forth Tuesday on the question of whether Delano will seek to be reinstated to the department.
He said that his client’s heart is in detective work but that he doesn’t know if Delano would feel comfortable going back to work for the very people who accused him of violating department policy.
“He is considering retirement, and not because of anything the commissioner may or may not do,” Cohen said in his own news conference in the Statler Towers office of Lorenzo & Cohen. “He’s so offended that the city insisted on prosecuting him for ‘bringing disgrace to the department’ that he feels it is not an environment that is conducive to doing honest police work.”
Cohen also emphasized that Delano wasn’t found guilty on every subsection of every charge lodged against him, and he highlighted Rinaldo’s words of praise for Delano’s career.
The attorney added that he doesn’t know whether Delano will, or can, appeal the hearing officer’s ruling.
At his own news conference, the commissioner said his penalty hearing is for Delano’s benefit, to make the commissioner aware of any circumstances that might influence whatever he decides. Unlike the highly publicized disciplinary hearing that Delano fought to have open, Gipson’s hearing will be closed to the public.
Gipson said he will take some time to consider whatever Delano might say before making a decision. The commissioner noted that he has a history of following the recommendation of hearing officers in departmental disciplinary cases.
Does he trust Delano? “I have concerns with anyone who breaches chain of custody,” Gipson replied. “The chain of custody is of paramount importance and cannot be handled willy-nilly.”
The commissioner and Diane T. O’Gorman, the assistant corporation counsel who prosecuted Delano at the hearing, viewed Rinaldo’s ruling as a win for the department, though it fell short of a recommendation of termination.
“There is language that he clearly considered termination,” Gipson said of Rinaldo’s findings. “This is a paramilitary organization, and when orders are issued, they are expected to be followed.”
On three occasions, Delano refused to obey written orders issued by Chief of Detectives Dennis Richards, Deputy Police Commissioner Daniel Derenda and Gipson, O’Gorman said.
Cohen, however, said the orders from Richards and Derenda were not issued until after he had already had contact with the witness and said the hearing officer exonerated Delano on this point.
He also noted that Delano had hundreds of contacts with reporters over the years, and on many occasions earned kudos from police brass after the news articles were published.
However, in the handful of instances where Delano’s media interviews made the department or other officials look bad, Delano was belatedly accused of insubordination, the lawyer said.
“He ruffled feathers. I would argue, the U. S. Supreme Court would argue, that’s exactly what the First Amendment is for. That is what freedom of the press is all about,” Cohen said.
Delano refused to stop investigating the Crystallynn Girard case because he said he did not believe DeJac had murdered her daughter. He released video footage of the 1993 death scene and a videotaped polygraph test to WGRZ-TV.
Authorities later ruled the 13-year-old girl died from a cocaine overdose.
Edward Girard, Crystallynn’s brother, said he was extremely disappointed in the hearing officer’s ruling.
“It is because of [Detective] Delano that we can sleep safer at night. His hard work and dedication [led] to the truth, the conviction of the real criminals and the freedom of those who were wrongly convicted! [Detective] Delano is a hero and should be rewarded!” Girard wrote in an e-mail to The Buffalo News.
However, O’Gorman, the assistant corporation counsel, said Rinaldo’s decision illustrates for other officers the importance of following the chain of command.
“It’s a good result for the department,” she said. “I think it sends a strong message that you must obey orders.”
It’s not clear whether Delano, who was not made available to reporters Tuesday afternoon, wants to return to the department.
He submitted his retirement papers once before, earlier this year, but he later withdrew them, his attorney said previously.
Delano loves police work, Cohen said, and believes that he would be welcomed back by rank-and-file officers.
“He does not have the support of the upper administration of the department. In fact, he has their contempt. He made them look bad,” the lawyer said.
Further, could Delano be trusted not to contact the media again and not to investigate Crystallynn’s death?
“It would be his hope that this situation would never arise again,” Cohen said. “But if he sees wrongdoing, he can’t tolerate that. He’s a very rare individual.”
If the commissioner decides to fire Delano, O’Gorman said she expects the disciplinary case would then shift to State Supreme Court on a challenge from Delano.
Cohen added that he doesn’t know if he can appeal the hearing officer’s findings, or if he has to wait to appeal Gipson’s decision.
He said a penalty hearing was set for Thursday morning in the commissioner’s office, but he is going to ask for a delay because of a conflict.
The attorney said any appeal would be up to Delano.
lmichel@buffnews.com and swatson@buffnews.com
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