Crime Fighting Runs Amok in Wrongful Arrest

After midnight on the day he was going to be arrested, Jay Brocco wandered around Dupont Circle in a sleepless daze. A short while earlier, he knew, Fairfax County police had scoured his Reston, Va., home in his absence, removed his computer and some family photos and accused him of being a sex pervert. In a few hours, Brocco was going to surrender, get fingerprinted and be charged with indecent exposure.

Walking the streets of Washington, he was a fugitive of sorts, aware that Fairfax police held an arrest warrant for him. His wife was home alone, bewildered. Earlier, Brocco had called her from his lawyers’ office, the first of many emotional conversations the two would have in the ensuing weeks.

“I didn’t do this,” he recalls telling her. Olga Brocco assured him she already knew that.

What neither of them knew--then or now, really--was how Jay Brocco, the quintessential middle-aged, solid-citizen kind of guy, with a good job and a loving family, got caught up in a Kafkaesque drama opposite a dogged detective intent on nailing him with a crime--a sex crime, at that--that Brocco didn’t commit.

In his 54 years, he’d had virtually no run-ins with the law. He’d lived a quietly successful life in the Virginia suburbs: chief financial officer for a major defense firm, married 28 years, a father, a grandfather. Family and friends describe him the same way: a private person, a Christian, respected.

Now Brocco desperately sensed his good name vanishing. After his arrest, he’d have to tell at least his closest friends and his boss of his humiliation. Once the newspapers got wind of it, everywhere he went he’d feel that people were staring at him, whispering.

In the Dupont Circle hotel room where his lawyers arranged for him to spend his last hours of anonymity, wanting to spare him a middle-of-the-night arrest, Brocco couldn’t sit still, much less sleep, as he pictured a squad of investigators rooting through his belongings.

“Your husband’s got a secret life you’re not aware of,” the detective had told his wife, showing her an affidavit accusing Brocco of flashing a nude photo of himself to a 16-year-old male lifeguard at his Reston health club.

“The loneliest feeling in the world” is how Brocco now recalls the long night he spent waiting for his public degradation. “You’re the only person in the world, other than the actual perpetrator, who knows you didn’t do this.”

Remarkably, within two weeks Brocco’s lawyers had convinced Fairfax prosecutors that, in fact, he didn’t do it, that police had the wrong guy. The charge of indecent exposure was dismissed.

But while it’s relatively easy to erase an arrest from court records, blotting it from the psyche is an entirely different matter. And that is where things stand now.

“I don’t think it’s ever going to be the same,” said Ed Bartko, Brocco’s friend of more than 20 years. “This is a scar. And these scars, you just can’t get rid of ‘em.”

To this day, nearly 11 weeks after police first knocked on his door, Brocco has not told his aging parents, retired and living in Florida, what happened. Why turn their world upside down, too?

*

The ordeal that Brocco later would compare with being cast in a Hitchcock horror film didn’t begin with the search of his house Oct. 4 or his arrest the following day.

It started more than a month earlier, on the afternoon of Aug. 24, when Fairfax police Detective Ricky Savage visited the Broccos’ house in the North Point area of Reston. Brocco was at his job at TRW, where he is chief financial officer for a company subsidiary.

Savage asked Olga Brocco to have her husband call him. She asked why. “I can’t tell you,” she recalled Savage saying, “but he knows what it’s about.”

She figured it was something related to her husband’s security clearance. That night, Brocco left a message for the detective; the next day, Savage called back, again while Brocco was at work. What is this about? Olga asked a second time.

“We know what he’s doing,” she said Savage told her, “and we’re watching him.”

In these and several subsequent contacts, the Broccos say, Savage never explained why he was calling, and he always seemed to phone when only Olga was home. The calls were unnerving. What were the police after?

Your husband knows. . . .

Only, he didn’t know.

The couple hired a lawyer.

For several weeks there was an unexplained lull. With no contact from Savage, the Broccos turned their attention to a family member who was seriously ill. Their trepidation about the police inquiry diminished.

“I was anxious,” Brocco said, “but each week that went by, it was less and less. We assumed they were no longer interested in talking to me.”

Then, without warning, came the Oct. 4 search of their home.

Savage and six other officers showed up. One of them handed Olga Brocco--Jay was at work--a search warrant as the officers fanned out through the house.

An affidavit filed to obtain the warrant outlined the July 9 incident at the health club and said police were searching for child pornography or evidence of child sexual abuse--items to “substantiate the victim’s report of indecent exposure.” The officers also had an arrest warrant for Brocco.

Olga called her husband, who was in a meeting, and left a frantic message. “She was very distraught,” he recalled. “I probably went into a state of shock.”

Brocco contacted William B. Moffitt, one of his attorneys, who immediately called the house but says Savage refused to speak with him. Moffitt advised Brocco to come to his office and made arrangements to surrender him the next morning, putting him up at the Doyle Washington Hotel in the interim.

“I didn’t sleep, eat or drink,” Brocco said, describing the hours he spent wandering the city’s dark streets, haunted by thoughts that, with his pending arrest, “this will be with me the rest of my life.”

The next morning, lawyers at his side, Brocco turned himself in to Savage and was booked, handcuffed and taken to the Fairfax jail. “You go through the fear, the paranoia and anger,” he said. “You feel totally helpless.”

But with his release on bond a few hours later came a new worry: “You pray it’s not publicized. Is this going to be in the press? is another devastating thought.”

The Broccos went home and tried to collect themselves. They called a few family members and friends, and Brocco notified his boss--”painful calls to make, I assure you.”

A strange and numbing fog descended that night. “My mind went blank. I said to my wife, ‘What floor do I work on? What building? What happened today, what was I charged with?’ ”

The next morning, Paula Sroka, a close friend, dropped by. “They weren’t doing too well at all. Jay was in a state of shock,” she said. Wanting to do something, anything, to help, Sroka went out and picked up some food.

Later that day, Brocco had his first appearance in Juvenile and Domestic Relations Court. “They announce your name over the loudspeaker, and everybody’s looking at you like you’ve abused a juvenile,” he recalled.

The next morning, his picture appeared in the Fairfax Journal with a story quoting from the police affidavit. At work, someone approached and said, “Sorry about the article.” Brocco asked, “What article?” The co-worker showed him. “My heart just sank,” he said. “I left work. I couldn’t function.”

Soon someone faxed the story to his boss, and the Reston Connection, delivered to all homes in the community, ran its own story.

Now everyone knew. Never mind that it was completely untrue. It was out there.

“You just want to run out and collect all the papers off everyone’s frontyard,” he said. “You can’t do it fast enough.”

Olga Brocco called some of their neighbors to explain, but how do you explain the unexplainable? Some friends called them. “They were outraged. They couldn’t believe it,” she said. Others didn’t know what to say. “It put them in an uncomfortable position.”

Meanwhile, Brocco felt that every person he met was judging him. “At a restaurant, getting gas, you want to say, ‘I didn’t do it.’ You think every single person has read the article.”

That weekend, former neighbors of the Broccos, Ed and Ann Bartko, flew in from South Carolina. At dinner the first night, Ed Bartko immediately noticed “something not right” with his longtime friends, but the Broccos kept mum. “They tried real hard not to make it a bad evening,” Bartko recalled last week.

When the couples got together the next night, the men went off to talk quietly and Jay Brocco confided what had happened. “He was stressed. He was really down,” Bartko said. “He’s a very private person. He keeps it inside.”

*

Within days of Brocco’s arrest, his attorneys, Moffitt and Henry W. Asbill, had determined several key facts, chief among them: Brocco wasn’t even at the health club the day of the incident. The club has a poolside surveillance camera, but police never looked at the tape for July 9; nor does Brocco’s name appear on the computerized attendance log for that date.

The attorneys and investigator Susan Giller also established that Brocco doesn’t remotely resemble the description the teenage lifeguard gave of the suspect: a man in his 60s with thinning white hair and a scar behind his right ear. The defense team also learned that police hadn’t shown the lifeguard Brocco’s picture. When Moffitt informed prosecutors of this, they directed Savage to show the photo to the lifeguard. The teenager took one look and told police they had the wrong man.

Three days later, charges against Brocco were dropped.

He started calling friends. “You could hear it in Jay’s voice,” Bartko said. “There was this burden taken off his shoulders.”

Said Brocco: “I thanked God.” And then he thanked his attorneys, “who had done all this work. . . . I felt enormous relief.”

*

Epilogue: On Oct. 18, hours after Brocco’s case was dismissed, Fairfax police charged another man, James A. Brokke, of Falls Church, Va. Brokke, 60, attends the same health club as Brocco. Legal correspondence in the case suggests the lifeguard may have confused the similar-sounding names in his initial report on the incident.

Det. Savage did not return several telephone calls seeking comment. Fairfax police have begun an internal investigation into how Brocco was wrongly accused and “will take appropriate action based on the outcome,” said Lt. Col. William Brown. If an apology is due, Chief J. Thomas Manger has said, “I will give him one.”

That, and maybe more. Brocco and his attorneys say they are considering filing a civil action against the police department.

“I don’t see any evidence that an investigation occurred,” Asbill said. “If even a cursory investigation had occurred, my client would never have been charged.”

Jay Brocco got his good name back. It cost him more than $35,000 in legal fees. Some think it cost him a lot more.

“Jay has really not been himself. He still isn’t,” said Sroka, his longtime neighbor. “Even after it was over, you’re always nervous of a knock on the door or a phone call. It’s difficult, and it’s going to be difficult.”