Drug War

'No One Will Hurt You,' a SWAT Officer Promised an Hour After Houston Cops Killed a Couple Falsely Accused of Selling Heroin

Evidence from the scene of the disastrous raid seems to contradict the official account.

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Evidence from the scene of the disastrous drug raid that killed a middle-aged couple in Houston on January 28 seems to contradict the official police version of what happened that day, according to an investigation commissioned by the couple's relatives. The no-knock raid at 7815 Harding Street, which was based on a fraudulent warrant application alleging that heroin was being sold at the house, discovered no evidence of drug dealing.

The Houston Police Department (HPD) said narcotics officers shot 58-year-old Rhogena Nicholas because she tried to take a shotgun from a wounded cop. But after inspecting the house for four days, a forensic expert hired by her family concluded that she "was fatally struck by a bullet from a weapon fired outside the Harding Street Home by a person shooting from a position where the shooter could not have seen Ms. Nicholas at the time she was fatally shot."

Michael Maloney, a retired supervisory special agent with the Naval Criminal Investigative Service, also found that "an unidentified person held a weapon against the inner dining room wall and fired 2 shots into [it] towards the kitchen." Those two shots may correspond to gunfire recorded on a neighbor's cellphone video at 5:02 p.m., 47 minutes after Houston Police Chief Art Acevedo said the narcotics officers arrived at the house.

Acevedo said the first officer through the door entered "shortly before 5 o'clock," or "about 4:30," and was "charged immediately by a very large pit bull," which he killed with a shotgun. Yet Maloney found that the dog was killed near the dining room, 15 feet from the front door.

After the shotgun blast, Acevedo said, Nicholas' 59-year-old husband, Dennis Tuttle, "came from around the back" and "opened fire" with a .357 Magnum revolver. Police returned fire, and the shootout, during which four officers were struck by bullets, was over within minutes, according to the HPD. But that does not jibe with the two shots recorded at 5:02 p.m., assuming the raid started around 4:30 p.m., as Acevedo said. The holes in the dining room wall, which are 14 feet from where Tuttle fell, are consistent with .38- or .357-caliber ammunition fired very close to the wall, which suggests the rounds may have come from his revolver.

In the cellphone video, which was shot outside the house and was also obtained by state police investigating the incident, an officer can be heard saying "two suspects down" at 5:05 p.m. Nicholas and Tuttle were both pronounced dead at 5:15 p.m. Yet the amplified voice of a SWAT officer, ostensibly negotiating with the "suspects," can be heard on the cellphone video at 6:09 p.m. "Exit the front door with nothing in your hands and listen to the voice instructions," he says. "I guarantee that no one will hurt you."

Those revelations are described in a petition filed yesterday in Harris County Probate Court by Michael Doyle, an attorney who represents Nicholas' mother and brother. Doyle is seeking to depose Capt. Paul Follis, who was in charge of the HPD Narcotics Division at the time of the raid, and Lt. Marsha Todd, another supervisor, along with a designated representative of the city, in preparation for potential litigation. "Given the indications that the City's story does not line up with the physical facts at the Harding Street Home," the petition says, "the Nicholas Family believes the Court has more than sufficient basis to order the depositions requested to investigate the wrongful death, civil rights, and other claims arising from the Harding Street Incident."

Among other things, Doyle wants to ask Follis and Todd about the "supervision and monitoring" of warrant applications and the use of confidential informants. Those are crucial issues in this case, since the raid that killed Tuttle and Nicholas seems to have been based on a "controlled buy" of "black-tar heroin" that never happened, carried out by a C.I. who does not exist.

According to Acevedo, Officer Gerald Goines lied when he applied for the warrant, and police have been unable to identify the supposed C.I. "The identity of CI's providing specific information about criminal activities…is required to be documented and readily accessible to police managers," the petition says. "HPD's managers knew from the beginning that there was no documented CI significant meeting record in its files supporting the assault on the Harding Street Home." Doyle notes that oversight practices that "allow officers such as Gerald Goines to simply make up CI's, or fabricate criminal activity used to justify warrants, would violate the Fourth Amendment."

Goines had a history of questionable testimony and affidavits. In February, KHOU, the CBS station in Houston, looked at 109 cases in which he was involved. "In every one of those cases in which he claimed confidential informants observed guns inside," it reported, "no weapons were ever recovered, according to evidence logs Goines filed with the court." In the Harding Street case, Goines likewise said his C.I. had seen a gun, a 9mm semi-automatic pistol, that was never found. The district attorney's office has dismissed a bunch of pending cases that Goines handled and is reviewing 1,400 more, along with 800 cases involving Officer Steven Bryant, whom Goines cited in his affidavit as verifying that the "brown powder substance" supposedly purchased from Tuttle was black-tar heroin.

The HPD completed its investigation of the raid in mid-May and handed over its findings to the Harris County District Attorney's Office, which is conducting its own investigation. In a sign of how much there is to be investigated, the office is seeking $1.7 million in funding to hire 10 additional employees to work on the probe. "The Harding Street case is huge and more complex than most other cases," a spokesman said. "From possible misconduct to the use of confidential informants, we must review everything and get it right. The public demands and deserves nothing less."

The FBI is also looking into the raid, and on Wednesday two officers who were involved in the early stages of the case testified before a federal grand jury. Those officers, according to Acevedo, responded to a January 8 call in which a woman reported that her daughter was using drugs inside the Harding Street house and described Tuttle and Nicholas as armed and dangerous drug dealers—a description contradicted by their neighbors, who told local news outlets they had never seen any suspicious activity at the house. Acevedo said the call led to the investigation in which Goines, who retired in March and may face criminal charges, fabricated evidence to justify the deadly raid.

According to the petition, Tuttle and Nicholas were taking "an afternoon nap" when the officers broke into their home and killed them. "The City deliberately chose to push out a worldwide story about the Harding Street Incident, based on the flimsiest grounds and even as it was simultaneously compiling more and more evidence internally that undercut its chosen narrative," the petition says. Acevedo "described a ferocious assault by both Rhogena and her husband on a 'hero,' Gerald Goines, while he led Narcotics Squad 15 into a well-known 'drug house'…Even while police command staff were insisting that the black tar heroin 'drug house' allegation justifying Drug Squad 15's assault on the Harding Street Home was true, HPD was simultaneously confirming internally that it was false."

The petition says the HPD never contacted Nicholas' family for information about her and her husband after the raid, refused to set the record straight after the initial portrayal of the couple was contradicted, and has denied them access to important evidence and records. "Our family's search for the truth of what happened to Rhogena continues," her brother, John Nicholas, said in a press release. "We're pursuing this on our own because the City of Houston is now fighting us. This followed silence from the police chief and mayor. Through our independent investigation, the family is committed to helping protect the community and other families from continuing to face terrible ordeals like this one."

[This post has been updated with additional details from Doyle's petition.]