PatersonPress Exclusive: Cop in Sex Case Had Been Deemed Unfit for Duty

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Frank X. Graves Public Safety Building
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PATERSON, NJ - A city police officer accused of forcing a woman in his custody to perform oral sex on him was deemed by a police department psychiatrist unfit to continue in his job, just 10 days before the alleged incident in June 2007, according to testimony given earlier this year in hearings for the criminal case.

But the officer, Manuel Avila, was six months short of 20 years service, a key milestone for a disability pension, so he was allowed to continue working in a position that did not require him to carry a gun, testified Paterson Police Capt. Troy Oswald, who headed the department's internal affairs division at the time.
 
"What I really wanted to do was get him his 20 years,'' which would allow Avila to collect 50-percent of his salary through a disability pension, testified Oswald in May. "It's so close, so close.'' Oswald testified that he conferred with Police Chief James Wittig and they agreed to "reach out" to the psychiatrist, Dr. William Head.
On June 9, 2007, the day after the psychiatrist sent a letter approving Avila for duty as long as he didn't carry a weapon, and several days after police officials told him he would be forced to retire after reaching 20 years, Avila was supervising a woman in the city's cell block area, according to Oswald's testimony. The woman, Tia Carter, has alleged that Avila forced her to give him oral sex after he took her to an isolated room to make a phone call.
 
A jury in the criminal trial, in which a judge ruled that Oswald's pre-trial testimony could not be used as evidence, acquitted Avila of all charges. But Carter, a Paterson resident, has filed a federal civil rights lawsuit  against the city, Avila and Wittig. It's possible that Oswald's testimony, along with his internal affairs files about Avila, may be used as evidence in that case.
 
The city council has begun discussing how to handle the lawsuit, which could prove costly to Paterson taxpayers. Last month, the council voted to pay more than $1.3 million to settle four other, unrelated lawsuits involving the police department. Paterson's Corporation Counsel, Paul Forsman, said the Avila lawsuit is in its early stages. The key figures in that case, as well as their lawyers, declined to discuss it.
 
"Believe me, when this is over, I've got a lot to say,  but still being a police officer, I could get in a lot of trouble right now if I talked to the press,'' said Avila. "You'll have to talk to my attorney.''
 

"I can't comment on what's a pending lawsuit,'' said Frederic Rossi, the attorney representing Avila in the civil case.
 
"No comment, not at this time,'' said Eugene Melody, Carter's attorney.
 
"Dr. Head never makes any statements about any patients he's evaluated or been involved with,'' said his practice administrator, Karen Walker.
 
"My testimony will still stand,'' said Oswald, who is now in charge of the department's narcotics bureau. "Anything else, I'm sure you know, I can't comment.''
 
Wittig, his attorney, and the attorney representing the city did not return phone messages seeking comment.
 
PatersonPress.com has viewed a digital video of Oswald's testimony on May 18, 2010 during pre-trial motions in the criminal case against Avila before Superior Court Judge Ernest M. Caposela in Paterson.
 
Oswald said he first became aware of the potential problems with Avila on March 18, 2007. He testified that on the day before, St. Patrick's Day, Avila had ingested a large quantity of sleeping pills - Lunestra - and had to be evaluated for a possible suicide attempt at St. Joseph's Regional Medical Center in Paterson. While he was being evaluated, Avila was in police custody at the hospital because of problems he had with officers at his home in Hawthorne on March 17, Oswald testified.
 
After being released from St. Joseph's on March 18, Avila spent the next five days at St. Mary's Hospital in Passaic for a psychiatric evaluation, Oswald testified. After being released from St. Mary's, Avila was directed by the city to see one of its police psychiatrists, Dr. Head, for a "fitness for duty evaluation,'' Oswald testified. In an April 11, 2007 report, Dr. Head found that Avila could resume duty, but without a weapon, Oswald said.
 
In the meantime, Oswald testified that he provided Dr. Head with Avila's internal affairs file, which included a series of incidents in 2004 and 2005. They included Avila's being taken to the hospital by his wife, being dizzy and having to go to the hospital, needing treatment because he mixed Ambien sleeping pills with wine, having his brother call Paterson police because he had been missing for several days and submitting to a fitness for duty evaluation which determined he was okay to return to work. Then, for almost two years, Oswald testified, there had been no incidents in Avila's internal affairs file. During that time, Avila worked at police headquarters, either at the department's front desk or at its cell block. 
 
After Dr. Head reviewed the internal affairs file, Oswald testified, the psychiatrist sent a new report on May 10, 2007 recommending that Avila go to therapy. Oswald said he asked Dr. Head for clarification about Avila's status.
 
 
On May 29, Oswald said he received a letter in reply from Dr. Head. Here's how Oswald described Dr. Head's conclusion in the letter: "He cannot clear Officer Avila to carry a weapon and the simple sentence he says, 'He should therefore leave the police department.'''
 
That was when Oswald went to Chief Wittig to discuss letting Avila stay on for six months for his pension, he testified. There were two posts in which Avila could work in the police department without a gun, Oswald said. One would be communications, which operates in an area sealed from the public, and the other would be booking, where officers give up their guns before starting work, he said. In a June 8, 2007 letter, Dr. Head had indicated it would be okay to allow Avila to stay on the force as long as he didn't carry a weapon, Oswald testified.
 
Sometime between the May 29 and June 8 letters from Dr. Head, Avila met with Oswald, Wittig, police union president Steve Olimpio and Lt. Pat Papagni, who was Lt. Wittig's administrative assistant, Oswald said. During that meeting, Avila was told he was being allowed to stay on the job in a limited capacity until he reached 20 years of service, the captain testified.
 
When questioned in court about Avila's reaction, Oswald responded: "He basically just asked if he could appeal it.''
 
Meanwhile, Carter was arrested in a domestic dispute on June 8, according to her testimony in the criminal trial. The alleged sex incidents involving Avila and Carter were said to have happened on June 9 and June 10, Oswald testified. Carter came to Paterson Police internal affairs on June 12 to lodge a complaint, Oswald said.
 
Avila currently is "on leave" from the city police department, according municipal officials.
 

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