As the suspect lay on the ground gasping for air and choking on his own bag of cocaine, Akron police Officer Donald Schismenos towered above.
“I hope you die,” the officer said, panting after the brief foot chase.
The officer’s heated words are heard in a recording Schismenos secretly made of the moments leading up to the arrest of Rashid Fitzgerald that July night.
The often graphic digital images were then stored on a police computer, alongside countless other cases Schismenos worked. The officer never tagged the recordings into evidence.
In fact, it would be two years before police supervisors saw the video — along with a mind-boggling library of Schismenos’ other covert recordings — he stored on the city computer.
The alarming digital discovery is only now beginning to send shock waves through the city’s legal community.
As one police investigator noted, the officer’s actions — coupled with at least one instance of purposely shielding or fabricating evidence — “call into question his handling of all his other cases.”
It isn’t immediately clear how many of Schismenos’ arrests were recorded when he started using the personal camera around 2009 and 2010. Police estimate as many as a dozen suspects were recorded.
“It makes me wonder who this thin blue line is protecting and that to me is an affront to our justice system,” said defense attorney Eddie Sipplen, who represented Fitzgerald.
“But what is clear is that no one in the Akron Police Department or the [Summit County] Prosecutor’s Office wanted this to ever come to light.”
The Fitzgerald file wasn’t the only case Schismenos recorded surreptitiously.
As police have come to realize, Schismenos secretly collected videos almost daily — some of criminals, some of fellow officers and court proceedings, including at least once from inside U.S. District Court where recording devices are strictly banned.
So voluminous was his collection of video and audio downloads that Schismenos’ computer files consumed 220 gigabytes, or about 30 percent of the police department’s entire server and created a drag on the system.
“Officer Schismenos’ computer files contained thousands of pictures, videos and audio files …,” an internal affairs investigation found.
More angst was to come as police searched Schismenos’ home and found more evidence — including weapons taken from suspects, police reports, crime scene videos and even employee reviews and disciplinary records of fellow officers.
History of complaints
His separation from APD in December ended a tumultuous, nearly five-year tailspin that started, ironically, with his confrontation with an Akron woman who was recording Schismenos making an arrest.
The officer demanded the video she shot, but the woman refused. And despite orders from a sergeant to disregard the woman’s lawful filming and move on, Schismenos later had her arrested and jailed for nearly two days.
A review of Schismenos’ work history by the Beacon Journal showed he was one of the department’s lightning rods for citizen complaints and use of force.
Schismenos was eventually disciplined for the camera seizure, and he left the gang unit, where he was considered an expert by some.
It was in August 2011, a short time after Schismenos was re-assigned to the detective bureau, that Police Chief James Nice became aware of the officer’s massive files bogging down the department’s computers.
What the chief saw raised all sorts of questions: Were laws broken? Did others, including high-ranking officers and at least one common pleas judge, know they were being recorded by the officer? What images of arrests and chases should be shared with defense attorneys?
Critical of others
After being notified of the investigation, Schismenos met with union president Paul Hlynsky.
The men discussed the officer’s computer use and Hlynsky urged Schismenos to remove personal files and “get it off of there.” Schismenos said he knew the department brass would “come after me” and that he “got rid of a lot of stuff” from his computer.
“Any of my f------ stuff on [the computer] is f------ minimal, less than a f------ lunchtime … whereas these [fellow officers] sit on their asses all God damn day and do s---,” he said in the conversation he recorded with Hlynsky.
An internal affairs investigation report acknowledges the requirement that “recordings while on duty are evidence when done in the course of a criminal investigation.”
“Officer Schismenos has displayed a pattern of recording everyone for his own interest, not for a law enforcement interest,” the report concluded.
Schismenos’ attorney, Thomas Dicaudo, did not return a call seeking comment. Schismenos could not be located for comment.
Pension, no charges
According to his separation agreement, Schismenos, 47, kept a partial pension that will allow him to collect some retirement money. Schismenos had been with the department since 1992.
The city agreed not to pursue criminal charges and he agreed not to contest his removal. He earned in excess of $125,000 while on paid leave from the department while the investigation dragged on for more than two years.
It appears Schismenos used a pen camera attached to his uniform or a personal dash camera he mounted inside his cruiser.
Police and agents with the Ohio Bureau of Criminal Investigation collected about 10-12 arrests Schismenos recorded and handed them to county prosecutors to determine whether they were required to be shared with defendants in compliance with discovery rules.
Last year, state attorneys initially sought theft and theft in office charges, but a Summit County grand jury declined to indict.
During the course of the internal investigation, Schismenos said he did not act improperly, that he recorded his work for his own protection and that any videos not filed as evidence was inadvertent.
At times, he expressed thoughts that he was being targeted by superiors.
“I have to protect myself,” he later told investigators.
During one recording he made while talking to fellow gang unit officers, Schismenos sounds frustrated by the grind of police work and increasing tension inside the department.
“You know, I love being a cop … but now it’s just such a f------ pain in the ass. I mean, it’s a headache every day we come in here.”
Last week, and for the first time, defense attorney Sipplen reviewed video evidence recorded by Schismenos as Fitzgerald was being arrested and while he was lying on the ground, handcuffed and barely able to breathe while officers looked on.
Sipplen watched the videos obtained by the Beacon Journal. He has not heard from prosecutors about the evidence, but he said the images leading up to the arrest would have bolstered his argument to have the cocaine evidence suppressed.
Fitzgerald, 38, lost the suppression motion in 2010 and then went on to plead guilty to attempted tampering with evidence, trafficking drugs and resisting arrest.
Sipplen said he believes the silence from law enforcement makes it appear they have gone into “protection mode.”
“I’ve got to tell you straight up: I’m pissed off to no end,” Sipplen said. “The goal of the criminal justice system is to get to the truth and police officers are on the front lines.”
Sipplen said the Schismenos investigation should open a “floodgate” of motions filed by defendants seeking to have their cases reheard.
“Every case needs to be re-examined and it doesn’t matter if it opens the floodgates. Schismenos created this by damming the gates,” he said.
Filing a motion to suppress is usually the first line of defense for someone accused of a crime. A judge will be asked — based on testimony of officers and evidence collected — whether police acted properly when initiating the contact and seizing property.
There are Constitutional protections in place to ensure law enforcement shares its evidence with defendants to ensure a fair trial.
Sipplen said he had heard rumors of Schismenos’ recording prowess, but he was unaware of a direct link to one of his cases.
“Yes, that video makes a big damn difference,” Sipplen said upon being told of the video. “My motion to suppress was based on the fact that Schismenos had no articulated reason to stop [Fitzgerald] other than the fact he was black and driving a [Lincoln] Navigator in a so-called drug neighborhood.”
In another case examined by internal investigators, Schismenos was questioned about video recordings he made in the 2010 arrest of Cash Moore of Akron.
There are three videos created by Schismenos that were never tagged into evidence nor shared with Moore’s defense attorney before trial, records show.
Moore’s lawyer, Holly Bednarski, was notified of the videos in April 2012. The court docket does not show any effort by Bednarski to have a hearing on the video evidence.
Bednarski did not respond to several messages left on her phone. Moore said in a message that he had little contact with her while his case was pending. He could not be reached for further comment.
Investigators said it appears Schismenos “picked and chose” what evidence he wanted to share with prosecutors and defense attorneys.
“His conduct on [the Moore] case calls into question his handling of all his other cases,” investigators concluded.
Assistant prosecutor Joseph Fantozzi, who handled the Moore case four years ago, told police internal investigators that he would have offered a less harsh sentence to Moore had he known of the video’s existence.
He said if a suppression hearing was to be scheduled today, the state would lose.
“If I was a defense attorney, I would take this to trial,” he said.
Moore, 40, was arrested after he and a companion were found by Schismenos outside an Akron house. Moore told the officer that he lived at the house. That portion appears to be on a video not placed into evidence.
Police seized several firearms when they searched the house in pursuit of Moore. After failing to have the police entry thrown out for lack of probable cause, Moore pleaded guilty to weapons charges. He received probation.
According to reports, however, the videos kept hidden by Schismenos could have aided Moore’s case to have the evidence tossed out.
“Schismenos did not treat [Moore] fairly and impartially,” the report concluded. “He damaged the trust of the community we serve by purposely not providing all the evidence for trial that he was required to do and by purposely omitting relevant information from his paperwork.”
The officer’s actions during Moore’s arrest — when Schismenos said he felt an urgency to go inside the house in pursuit of Moore — “appears to be purposely misleading at the least or outright fabricated at worst.”
Schismenos’s propensity to record his daily work didn’t stop on the streets. He also recorded fellow officers and supervisors inside the police department.
In one audio recording, he calls a police captain newly assigned to oversee the gang unit a “f------ idiot.” He remarks about feeling “messed” with by his superiors and plans to fight back through the union with a grievance and public records request focusing on the captain’s strict new rules.
“All I know is I’ll be happy Monday … that’s the initial f--- you to the city,” Schismenos says. “Do they know who they’re f------ with?”