Why an accused Phila. officer is still on the force

Wendy Ruderman (left) and Barbara Laker of the Philadelphia Daily News won a Pulitzer Prize in 2010 for their series, "Tainted Justice." Among the articles in the series was one telling a woman's account of being assaulted by a Philadelphia police officer.
Wendy Ruderman (left) and Barbara Laker of the Philadelphia Daily News won a Pulitzer Prize in 2010 for their series, "Tainted Justice." Among the articles in the series was one telling a woman's account of being assaulted by a Philadelphia police officer. (JESSICA GRIFFIN)
Posted: August 23, 2014

The woman in the emergency room at Frankford Hospital told the detective that the police officer who sexually assaulted her was named Tom. After the attack, she said, the officer scrawled his cellphone number on a torn piece of paper and handed it to her.

Through personnel records, police traced the number to a 10-year veteran of the force, Thomas Tolstoy. Within hours of the alleged assault on Oct. 16, 2008, the officer was pulled off the street.

Three women who did not know one another would eventually accuse Tolstoy of assaulting them under strikingly similar circumstances. Of the three cases, only the one involving the woman from Frankford Hospital led to a full-blown inquiry.

The allegations were investigated by the Philadelphia Police Department's Internal Affairs bureau, the FBI launched an exhaustive inquiry, and the U.S. Attorney's Office convened a grand jury, yet no criminal charges were filed. When news broke this year that there would be no prosecution after years of investigation, many expressed outrage.

The city has paid $227,500 to settle lawsuits brought against the officer by two women who accused him of groping their breasts. But unless city prosecutors determine that there is sufficient evidence to file charges against Tolstoy in the Frankford woman's case - the only one in which the statute of limitations has not expired - he soon could be cleared to return to street work.

An Inquirer review of an extensive investigative file - along with detailed interviews of people directly involved in or familiar with the case - reveals how Tolstoy emerged from a joint local and federal investigation unscathed.

The documents show that in seven interviews with investigators, the then-24-year-old woman, from Frankford, never wavered on the central tenet of her story: that she had been sexually assaulted, and that an officer was responsible.

But the woman's case presented a challenge from the start. DNA evidence did not match Tolstoy, according to the documents. The woman was fearful of police, initially lied about her name and criminal history, and at one point changed certain details of the assault - all of which could be used to undermine criminal prosecution of her assailant.

The documents also show that actions the victim ascribed to two Philadelphia Daily News reporters who wrote about her assault further undermined the criminal case by damaging her credibility and complicating a federal investigation.

The woman told investigators that the reporters - whose account of the assault and other police abuses would go on to win a Pulitzer Prize in 2010 - provided her with gifts, paid her bills, offered her money to hire a lawyer, and told her that she could collect a financial windfall if she talked to them and not to law enforcement officials, according to the documents.

She also told investigators that the reporters were aware that an associate of hers had pressured her to lie about the circumstances of the attack. And she said one of the reporters encouraged her to give an exaggerated account of the raid, saying it would help in a potential lawsuit.

The woman's accusations of impropriety by the reporters - included in detailed interview summaries signed by FBI agents - imperiled an already precarious case, according to three high-ranking officials familiar with the investigation.

When the Daily News published its account of the assault on June 17, 2009, the report prompted another interview by the FBI. The result was an eight-page statement in which the woman challenged the newspaper's account and at times contradicted herself, further weakening the case.

She told investigators that she had never provided the reporters with some of the details in the story and that others were wrong, or had never happened.

In a taped interview with The Inquirer, Daily News reporters Barbara Laker and Wendy Ruderman denied the actions described by the woman and said they stood by their story.

"We did our job in a fair, up-front way, with integrity," Laker said. "We never do anything less than be aboveboard. And we did everything aboveboard.'"

Ruderman and Laker said they learned of some of the woman's claims from an investigator while they were working on the story in 2009. Daily News editor Michael Days also learned of the allegations and asked the reporters if they had assisted the woman financially, they said, adding that they laughed it off as "ridiculous."

Laker and Ruderman said local and federal investigators, angry about the Daily News' coverage of police abuses, are using The Inquirer to tarnish their reputation and blame a failed investigation on those who uncovered the scandal in the first place.

They said investigators - looking for excuses to sink an inquiry they were reluctant to pursue - had long raised erroneous allegations about their reporting methods and were looking for "a scapegoat."

"The feds are looking for a reason why they can't do their job," Ruderman said.

In all, the documents detail the collision of two competing investigations - one led by the FBI and the other by two determined and experienced journalists - as both simultaneously sought to uncover the truth.

Police Commissioner Charles H. Ramsey said he believed that - lack of prosecution notwithstanding - there might be truth to the accusations against Tolstoy. But the absence of corroborating evidence and the role allegedly played by the reporters meant that "the likelihood of being able to do anything with the case is very, very remote."

If the allegations against Tolstoy are true but the investigation itself became compromised, Ramsey said, an officer who should have been removed from the force will still patrol the streets.

"The odds are, I'm stuck with a guy who shouldn't be a cop," Ramsey said.

Newspaper series

In February 2009, the Daily News published the first of a series of articles on a narcotics squad accused of fabricating warrants and robbing bodega owners during drug raids. The newspaper's series, "Tainted Justice," later expanded to include the three women who independently accused Tolstoy, a member of the squad, of sexual assault.

Laker and Ruderman also detailed the story and their reporting methods in a book published in March titled Busted: A Tale of Corruption and Betrayal in the City of Brotherly Love.

Police Commissioner Ramsey created an FBI-led joint task force to look into the case.

The probe widened after two women - who did not know each other and who had never met - told the Daily News remarkably similar stories of how Tolstoy had groped their breasts during raids.

One of the women, Lady Gonzalez, said the officer had ordered her against a wall in her Kensington house during a 2007 drug raid, unzipped her jacket, lifted up her shirt and bra, and fondled her breasts. A second woman, Dagma Rodriguez, also said Tolstoy had groped her breasts during a 2008 drug raid.

Both women said Tolstoy had first led them away from other officers, and both said he had asked about their tattoos before assaulting them.

The Daily News later reported that a third woman, whom they referred to by the pseudonym "Naomi," said she had also been sexually assaulted by an officer. During a drug raid at a Frankford house in 2008, the newspaper said, Tolstoy took the woman to an upstairs bedroom, insisted he had to search her for drugs, and inserted his finger into her vagina.

The Inquirer is withholding the woman's name in keeping with its policy of not identifying people who say they have been victims of sexual assault unless they agree to be named. Through her mother, the woman declined to be interviewed, saying the FBI had told her not to speak to reporters.

At Frankford Hospital on the night of the assault, Naomi could not identify her attacker in a photo array. But with Tolstoy's phone number in hand, police were able to pull him off the street. The next day, police searched Tolstoy's locker and his home, confiscating his gun and badge, and retrieving items for DNA testing.

In their series, Laker and Ruderman published a detailed account of the raid that extensively quoted Naomi. They also described a campaign of police harassment of Naomi that they said followed the assault, including threatening anonymous phone calls and a frightening incident of intimidation involving two uniformed officers days after the attack.

The article described Naomi as a reserved young woman, terrified of police, and said she had to be persuaded to speak to reporters.

After getting her number, Laker told Naomi in voice messages and texts that she wanted to interview her about the raid and show her pictures of officers, Naomi later told the FBI.

In her first statement to the FBI, taken June 2, 2009 - two weeks before the article was published - Naomi said Laker told her she could make money by speaking to the Daily News. Naomi repeated this assertion in subsequent interviews with the FBI.

Naomi told federal investigators that Laker said she could help her retain a lawyer "to get $600,000" from a suit against the city, according to a summary of the June 2 interview.

By that time, another of Tolstoy's alleged victims, Gonzalez, had sued the city for damages in excess of $600,000. A year later, Rodriguez would also file a suit against the city for damages in excess of $150,000.

Naomi told investigators she was confused by Laker's offer - she didn't know how talking to the reporter would help her get money. She said she told Laker that a Philadelphia police detective had recently contacted her about her assault.

She said Laker told her not to talk to law enforcement officials.

"[Laker] told [Naomi] not to talk to law enforcement because she would 'get a better deal,' referring to the $600,000, by only speaking with her," according to the interview summary, a federal document known as a 302.

In that interview, Naomi said Laker told her that the last time she spoke to police about her assault, the officer she accused "was back out on the street despite her complaint."

"[Naomi] understood this to mean law enforcement would not be able to help her in any meaningful way," according to the summary of the interview conducted by FBI Special Agent Andrew Pelczar III and Internal Affairs Detective Timothy Thompson.

In an interview with The Inquirer, Laker said she never told Naomi that her chances of making money from a lawsuit could be enhanced if she spoke to the Daily News. Laker said she never told Naomi not to speak with law enforcement. In fact, she said, she and Ruderman found Naomi when investigators could not.

The reporters said an Internal Affairs source had asked them, as a "favor," to persuade Naomi to talk to law enforcement officials. Laker said she gave Naomi a number where she could reach investigators.

"That person in Internal Affairs said, 'Look, Barbara, I know you and Wendy are good at what you do. If you find her, can you convince her to contact us again? Because we want to talk to her.' And I said I would be happy to do that and I did it," Laker said.

Series of interviews

Over nine days, Naomi would participate in a series of interviews in which investigators spoke to her after each of her encounters with the reporters.

Naomi later told the FBI that she had spent significant amounts of time with the reporters in 2009: meeting once in the Daily News office, once in one of the reporters' cars, and three times in restaurants. They visited her in the hospital after her youngest child was born, she said, and they showed up unexpectedly at a hearing when her landlord was trying to have her evicted.

She also said they gave her gifts: clothing, items for her children, groceries, and baby supplies. Naomi told investigators Laker paid her overdue electric and cellphone bills.

Naomi's mother said the gifts included baby bibs and bottles as well as a playpen.

Naomi said the reporters had also promised to provide a crib, but never delivered it, explaining they needed a truck to get it to her.

The reporters never gave her cash, the documents say. But, according to documents and interviews, Naomi told investigators the reporters offered her money to retain a lawyer to sue the Police Department.

In a recent interview with The Inquirer, Naomi's mother said the reporters also took her daughter to appointments, including an ultrasound at a free clinic and a meeting at an adoption agency. She said her daughter accepted the gifts from the reporters because "she felt she didn't have the money for the kids, so she would take it."

"I told [Naomi], don't take anything," she said. "It's going to make it look like you were going to court to say something against these people because you were given something."

Naomi also told investigators that the reporters had informed her of a conversation they said they had with an official at Internal Affairs. Naomi said the reporters told her the official had called Laker, yelled at her, and accused her of "bribing [Naomi] for the story," according to the documents.

Anthony DiLacqua, the former chief inspector of Internal Affairs who was at the forefront of the joint FBI and Philadelphia police task force investigating Tolstoy's case, said his investigators were alarmed by Naomi's assertions.

"There was a tremendous amount of concern on our part that the stories were being enticed," he said. "The allegations of gift-giving caused enough concern that we felt the need to call them and tell them that if it was taking place, it was inappropriate and interfering with our investigation."

Laker said there was no such conversation.

Ruderman said she was concerned about Naomi, who had four children and was pregnant at the time, and once bought her a small bag of groceries. That, she said, was the extent of their help.

Legal, ethical issues

From a legal standpoint, experts say, a case such as Naomi's would be difficult to prosecute because there were no physical evidence and no other witnesses, and a victim who had credibility issues.

Christopher Mallios, a former chief of the Family Violence and Sexual Assault Unit of the Philadelphia District Attorney's Office, said inconsistencies and credibility problems can fell a case.

He said the actions Naomi ascribed to the reporters would have allowed a defense lawyer to suggest that she had shaped her account in exchange for gifts and the promise of a legal payoff.

Stephen Saltzburg, a former federal prosecutor and a criminal law professor at George Washington University, said such suggestions could be fatal to a criminal case.

"It would be a huge deal at trial," Saltzburg said. "In fact, the trial would not be about what happened to her. It would be about what happened to her afterward, in terms of gifts and talking to the press, instead of the trial being about the act that the officer did."

The Daily News account of Naomi's allegations made no mention of giving her gifts or financial help.

In their book, the reporters describe assisting Benny Martinez, a confidential informant who helped them expose the narcotics unit's reliance on falsified warrants for another story in the "Tainted Justice" series.

Ruderman wrote that she had bought him groceries, food for Thanksgiving dinner, Christmas and birthday presents for his children, and a Razor scooter for his son.

The reporters also described contacting defense lawyers to see if any of them would take Martinez's case, and said they helped Martinez search online for cheaper apartments.

Ruderman wrote that "at my weakest moments," she came close to giving the informant money.

"Barbara and I knew the things we did for Benny crossed the line," Ruderman wrote. "But that line - the one between reporter and human being - got blurry."

Bob Steele, former head of the journalism ethics program at the Poynter Institute for Media Studies, said that in general and not speaking specifically to this case, giving gifts to the subject of a story is "journalistically and ethically inappropriate."

Steele said it was natural for a reporter to feel empathy and compassion toward the subject of a story. But, he said, reporters must "retain our journalistic independence."

Additional meeting

The Daily News account of Naomi's assault largely matches her initial statements to detectives and FBI investigators.

After her story appeared in the Daily News, investigators met with her again. Pelczar and Thompson sat down in the kitchen of her mother's house and went line by line through the newspaper story.

In the interview, Naomi maintained that she had been assaulted but denied almost the entirety of the rest of the Daily News story. She said that the reporters quoted her as saying things she had never said and that their story recounted events that she said never happened, including a campaign of police harassment.

Investigators were at a loss to explain the inconsistent accounts, said DiLacqua, the former inspector who led the Police Department's investigation.

"There was not a definite finding if she told reporters the truth, or lied to us, or if she told us the truth and lied to reporters, or if she was telling two different stories, or if there was misinformation or misreporting in the article," DiLacqua said. "But it certainly caused credibility issues."

Complicating matters even more, Naomi repeated her original account of the assault in an interview with the U.S. Attorney's Office in connection with her appearance before a federal grand jury, according to DiLacqua and the documents.

Laker and Ruderman said they did not know why Naomi had changed certain details in the interview with the FBI.

"We found her, we talked to her numerous times, and she told us the same story the exact same way, over and over and over again," Laker said.

Criminal record

In the series, the Daily News reported that the three women who accused Tolstoy had no criminal records and had never been charged with a crime.

Naomi told investigators she had a criminal record, but had lied about it to the reporters and in her initial conversation with police because at the time the article was published, she was wanted on an outstanding warrant in New Jersey for violating probation.

In 2004, public records show, Naomi pleaded guilty to theft of services for failing to pay a taxi fare for a long trip. The taxi driver had also reported her to child protective services for not feeding her infant child during the lengthy cab ride. She pleaded guilty to endangering the welfare of a child.

Three months into her court-ordered probationary period, she told investigators, she was evicted from her apartment in Philadelphia. Naomi said she violated her probation by moving to South Carolina to live with family because she felt she had no options - city shelters were full and she had no place to care for her children. She moved back to Philadelphia a year or two later, she said.

Her legal situation only heightened her fear, she later told the FBI, when Tolstoy and other narcotics officers raided the house she was living in after an informant purchased drugs on the premises.

She was terrified that he would find out about her outstanding warrant, send her to jail, and cause her to lose custody of her children, she said.

"I would have let him do anything to me," she said, according to the documents. "If I go to jail, who is going to take care of my kids?"

Naomi's case file shows that on the night of her assault, she gave police a false name and birth date in a signed statement.

The day after her assault, she went to her welfare office and canceled her payments, according to the documents.

"She did this specifically because she did not want officials, of any type, to contact her," the documents state.

The Daily News account made no mention of most of these details. The story described Naomi as an "intensely private" woman who rented an upstairs apartment in a house where a suspected drug dealer lived.

Naomi later told investigators she had been working as a prostitute and living rent-free at the house, which was a brothel run by Rahiem Brittingham, a pimp who led the reporters to Naomi in the first place.

She told investigators she was ashamed to admit her circumstances to anyone.

Naomi told the FBI that the reporters had been speaking to Brittingham, who was pressuring her to claim - falsely - that there had been other women in the house at the time of the raid and that they had been assaulted as well. At one point, she said, Laker encouraged her to "go along" with his "fictitious account."

"She explained this would help [Naomi] in any potential lawsuit against the Philadelphia police department and she would receive enough money to care for her children," the documents said.

Laker said she never encouraged Naomi to lie, and had only spoken to Brittingham in an effort to find Naomi.

Story of harassment

One of the most harrowing scenes in the Daily News' account of Naomi's ordeal is the description of two uniformed officers violently harassing her on the street two days after the attack.

The story reported that Naomi was stopped blocks from her home by two officers in a marked patrol car. They handcuffed her, threw her into the back of the car, and warned her to recant her story, according to the newspaper.

But in five statements to the FBI, in which she repeatedly described her assault by Tolstoy in detail, Naomi never mentioned being stopped on the street.

"[Naomi] has not been stopped by any PPD officers and no one has warned her to recant her story," the documents state.

In an interview with The Inquirer, Naomi's mother said her daughter told her she had been stopped by police, but gave conflicting accounts of whether her daughter had told this to investigators.

Laker said Naomi described being stopped on the street "in vivid detail" multiple times in conversations with the reporters. She said Naomi was "scared to death" by harassment from the police.

"She was shaking when she told me the first time, and other times told me the exact same story, over and over again," Laker said.

The reporters said they believed they had recorded interviews with Naomi but declined to provide them to The Inquirer.

"Maybe it happened, maybe it didn't happen," Ruderman said. "She tells us one story, then she tells them a different story, then she changes the story. OK, so she's an unreliable witness. But how does that still come down to us f-ing up their investigation?"

Anonymous calls

After the incident involving the police car, the reporters wrote, Naomi began to receive threatening anonymous phone calls at all hours. The calls became a major thread of the story.

The reporters wrote that Naomi was afraid to leave home, repeatedly changed her cellphone number, and eventually moved from her apartment because of the callers, who said things like "Drop it," "Don't say nothing," and "We know where you're at."

The reporters said Naomi suspected that the calls were from police officers. They also quoted her boyfriend, who said the calls were coming from police.

According to a summary of her interview with the FBI, Naomi told investigators that the newspaper account was misleading. Before the story was published, she told investigators that she had been receiving calls from restricted numbers that she did not answer. After the story was published, she said she had received repeated calls from Brittingham, who she said was pressuring her to lie, and repeated calls from the reporters - not police officers.

"[Naomi] never told the news reporters she suspected the threatening calls . . . were being made by police officers," the documents state. "She never told the news reporters she was afraid of the officer or his colleagues retaliating against her."

Naomi told investigators she was afraid to leave home but said it was because she was worried she would run into Brittingham, not the police. She said she changed her cellphone number but it was because she was unable to pay her bill.

Laker said Naomi told her repeatedly that she was terrified and thought the police were harassing her. The idea that Naomi never told her that, Laker said, is "a complete lie."

The Daily News also reported that Naomi's mother had received threatening phone calls and changed her number because of them. Naomi's mother told The Inquirer she had never received such calls. She has never spoken to the Daily News reporters, she said.

Showed video

The first time Naomi met with the reporters, she told investigators, they took her to the Daily News office and, in an effort to identify her attacker, showed her a video of a 2007 raid on a grocery store that included Tolstoy and five other officers.

The reporters used a similar method to help Tolstoy's two other accusers identify their assailant. In all three cases, the reporters said, the women viewed the video without suggestive prompting, and all three identified Tolstoy.

The documents detail at length the reporters' identification methods, and investigators and legal experts said the process would likely have tainted any efforts to have the women identify the officer in court.

Laker and Ruderman said Internal Affairs' identification methods at the time were designed to make it difficult for witnesses to definitively identify officers who had wronged them.

"They didn't want them to identify him," Ruderman said. "By and large, I think most cops are good. But I think Internal Affairs is always having a difficult job policing their own."

Ruderman rejected the suggestion that their identification methods might have compromised the investigation. She said police had already tried and failed to have the women identify their attacker when the Daily News began writing about them.

"Did we want justice done? Yes, we did want justice done. But we were also doing our jobs," she said. "And sometimes, that doesn't match up squarely with investigators."

DiLacqua said his investigators were handpicked for their integrity and skill.

"To say we didn't work tirelessly to obtain the truth - whatever the truth may be - is just a bold-faced lie," he said.

Lawsuits settled

The lawsuits filed against the city by Gonzalez and Rodriguez were settled in 2012 as part of a brokered agreement that included 31 other cases brought by bodega owners and people whose homes had been raided by the narcotics squad.

The city concluded that with a federal investigation still pending, it was cost-effective - and beneficial for the plaintiffs - to settle the cases, said Craig Straw, the Civil Rights Unit's chief deputy city solicitor. The city did not admit liability in the settlements, he said.

Gonzalez received a $150,000 settlement, according to city records. Rodriguez settled with the city for $77,500.

On May 12, 2014, Ramsey told The Inquirer that Tolstoy would be suspended for 30 days in connection with the investigation into his squad's falsified warrants and alleged thefts.

He will remain off the streets until the District Attorney's Office concludes its investigation, which was launched after The Inquirer reported that federal prosecutors had decided not to pursue the case.

A spokeswoman for District Attorney Seth Williams said she could not comment on an ongoing investigation.

According to investigative documents, Tolstoy denied the assault in interviews with Internal Affairs. He said he and another officer, Thomas Kuhn, took Naomi upstairs to retrieve her cellphone. He said he gave her his phone number because he was trying to recruit her as an informant.

Kuhn told investigators he saw nothing.

Seven other officers present during the raid were interviewed by Internal Affairs directly after the incident and again in 2013. All said they did not see Tolstoy assault Naomi.

The officers said it was common practice for members of the narcotics squad to give their cellphone numbers to people they believed could give them information on drug activity.

Hopeful note

In 2009, the Daily News reporters ended their story on a hopeful note. They wrote that Naomi, while still shaken by her experience, was attending twice-weekly therapy sessions paid for by her mother.

In her statement to the FBI after the Daily News story was published, Naomi said she never told the reporters she was seeing a therapist - and that she had never been in therapy.

Her mother told The Inquirer in a recent interview that her daughter had only recently received professional help. "It took her so long to realize she needed some type of counseling," she said.

Since the assault, Naomi has battled depression - at times so bad that she can barely get out of bed, eat, or bathe, her mother said. She said her daughter still has trouble talking about what happened to her.

Neither of them knew Naomi's story is now in a book, her mother said.

Naomi believes the assault was her fault - though her mother said she has tried, over the past five years, to convince her it was not.



mnewall@phillynews.com

215-854-2759


@MikeNewall

awhelan@phillynews.com

215-854-2961 @aubreyjwhelan

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