Harris County Criminal Lawyers Association

George Floyd

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June 2, 2020

To the family and friends of George Floyd, and to all members of the Harris County Criminal Lawyers Association:

The Harris County Criminal Lawyers Association (HCCLA) expresses sincere condolences for the outrageous death of native Houstonian George Floyd.  Mr. Floyd’s death while in the custody of law enforcement officers was completely unnecessary and exemplifies the systematic abuse of people that will continue to occur without serious and effective oversight of law enforcement policies, procedures and actions. HCCLA demands a full and transparent investigation, and charges must be sought against all criminally responsible parties.

The community is in pain. This pain is not unique to Minneapolis, sadly; it extends across America. The killings of George Floyd, Ahmaud Arbery, and Breonna Taylor are just the latest examples to bring to light the national shame of brutality perpetrated in the name of law enforcement. Far too often, that overzealousness and barbarism is aimed at people of color. The United States has witnessed too many undeserved, early funerals.

HCCLA is the largest local criminal bar in the State of Texas with nearly 800 members. HCCLA demands justice for Mr. Floyd and others victims throughout the nation, and here locally. HCCLA insists the time for change is now, and not for the next generation to address.

HCCLA demands courts stop upholding unjust convictions by claiming the violation of individual rights by police is “harmless”. HCCLA demands District Attorney Offices across Texas immediately release the names of peace officers found to have engaged in sustained use of force or complaints of racism. HCCLA demands local governments stand against police union obstruction of justice. All lawyers, judges, and upstanding officers of the law and the courts must rise up against this exploitation of any person. In an effort to propose a solution, we strongly support implementing the following rules immediately:

  1. Require all police officers wear body cameras and equip all patrol vehicles with dash cameras. Police policies should require all officers leave their bodycams and dashcams running during any encounter and keep them on while a person is in police custody. No muting or turning the cameras off while they are on scene. Police departments should also eliminate any delay in releasing the footage for cases filed.
  1. Increase the penalty for official oppression from a Class A misdemeanor to a 3rd Degree felony. Police Officers are granted large amounts of authority and trust from the community. When they violate that trust the penalty should be higher. If an assault where a person causes bodily injury is a Class A misdemeanor, then the penalty should be higher when an officer uses his or her authority in an unjustifiable assault. Officers enjoy enhanced protections when they are “targets” of crime, they should also suffer enhanced penalties for abusing their authority.
  1. We need transparency for the officer complaint process. All protections for un-sustained complaints against police officers should be removed. Far too often when complaints are made, Internal Affairs will investigate and, in some cases, recommend mediation. Un-sustained complaints should remain in an officer’s public personnel file along with the investigation and outcome.
  1. Immunity from civil liability should be removed for officers who violate people’s civil rights as well as departments who continually protect those officers from discipline for excessive force.

HCCLA’s members are seeking to be part of the solution. Many HCCLA members are providing free representation (pro bono) for those people arrested while engaging in peaceful protest.  Together, HCCLA stands against racism, violence in the name of order, and demands due process for all citizens accused. HCCLA will use all available resources to promote awareness of any criminal cases involving excessive force or racism by law enforcement.

HCCLA is prepared to assemble with community members, partners and local officials to help identify what more can be done together. Starting in Houston – starting today – resources must be dedicated to address this systemic, institutional problem. There are no reasons to wait for tomorrow.

 

Mark Thiessen
President, Harris County Criminal Lawyers Association

Right to Resist an Illegal Arrest? Nope!

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Guest Blog by Millie Thompson, HCCLA member and Defender of the Constitution

The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released.

Libertarian-bent people repeatedly ask me the following leading question, expecting me to confirm their conclusion: We have a Constitutional right to resist an illegal arrest, right?

Bloody_Sunday-Alabama_police_attackNo, you don’t. There was a common law right to resist, set forth in the Supreme Court case Bad Elk v. United States, 177 U.S. 529 (1900). That right was destroyed by the courts during the backlash against the Civil Rights Movement.

The courts stripped citizens of the right to resist an unlawful arrest, explaining that people should seek redress in court and sue civilly for an unlawful seizure. Qualified Immunity, however, destroys your ability to sue for an unlawful arrest based on mistaken identity.

On the one hand, you can’t resist them. On the other, you have no right to complain later if they were merely mistaken about arresting you.

Compare 1 with 2:

1 – United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982):

Speaking for the court in United States v. Johnson, 542 F.2d 230, 233 (5th Cir. 1976), Judge Morgan evaluated the current vitality 1316*1316 of the common law right to forcibly resist unlawful arrest. He concluded that old Fifth Circuit case law on the subject had been “sapped of its precedential value” by the persuasive authority of decisions from the other courts of appeals. Those decisions recognize that the common law right to resist an arrest that is not based upon probable cause, suited though it may have been to a past era, has no significant role to play in our own society where ready access to the courts is available to redress such police misconduct. See, e.g., United States v. Cunningham, 509 F.2d 961, 963 (D.C. Cir. 1975); United States v. Martinez, 465 F.2d 79, 82 (2d Cir. 1972); United States v. Simon, 409 F.2d 474, 477 (7th Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 79, 24 L.Ed.2d 79 (1969). Cf. United States v. Ferrone, 438 F.2d 381, 389-90 (3d Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971) (no right to resist search pursuant to invalid search warrant). But see United States v. Moore, 483 F.2d 1361, 1364 (9th Cir. 1973) (dictum). Although there may be some residual role for the common law right where it appears that the arresting officer is engaged in a “frolic of his own,” see United States v. Martinez, 465 F.2d at 82, there was no such situation here.

2 – Baker v. McCollan, 443 U.S. 137 (1979):

Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law.[4] The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released. Nor are the manifold procedural protections afforded criminal defendants under the Bill of Rights “without limits.” Patterson v. New York, 432 U. S. 197, 208 (1977). “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Ibid.

The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished “without due process of law.”

Experts will tell you that the fight-or-flight instinct kicks in whenever someone is in a high stress situation, like, for example, when a police officer puts you in a choke hold. You get tunnel vision. Your body shuts down the processes associated with digestion and rational thought, and your body ramps up the systems that will help you outrun the lion or fight the home invader.

At rest, you can process messages like “put your hands behind your back.” When you’re experiencing the fight-or-flight response, your brain isn’t working in a way that allows proper computation of that message.

The law on resisting arrest is illogical on two fronts: First, the whole reason courts have gotten rid of it – you can sue – is false. No, you can’t sue. Those officers have immunity from suit. Courts also point to the right to a speedy trial. That right is meaningless. There are people sitting in county jails everywhere who can’t make bail, were arrested a year, or even two years, or even three years ago, and still haven’t gone to trial. Second, it is not a cognitive rational decision to resist. It isn’t a choice. It is instinct.

We have a Constitutional right to resist arrest, right? Nope.

Miranda: 50 Years

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13394044_1040919159321789_663852100365371054_nMonday, June 13th 2016 marks the 50th anniversary of the landmark United States Supreme Court Decision Miranda v. Arizona.  

On March 13, 1963, Ernesto Miranda was arrested, in Phoenix for multiple felonies based on circumstantial evidence.  Officers took him into custody and after two hours of interrogation, Miranda signed a confession to the offenses.

Miranda was not able to speak to a lawyer before or during any of the police interrogation and he was never even made aware that he had the right to have an attorney present.  He was convicted at trial based on his signed confession and his appeal to the Arizona Supreme Court was affirmed.  

The United States Supreme Court reversed the convictions and issued one of the most important opinions in the history of our criminal justice system to date. Miranda insures every person the right to counsel during interrogations by police.  Chief Justice Earl Warren wrote the opinion in Miranda v. Arizona. The decision was in favor of Miranda. It stated that:

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

The opinion was released on June 13, 1966. Because of the ruling, police departments around the country started to issue Miranda warning cards to their officers to recite. They read:

You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements. Do you understand these rights as I have read them to you?

mirandaMiranda was retried and ultimately convicted based on other witness statements concerning his guilt.  After Miranda was released from prison in 1972 he made a modest living autographing Miranda warning cards used by police officers.

We have Ernesto Miranda to thank today for our right to have the advice of an attorney prior to answering ANY questions by police officers.  Its a valuable right and one that people should exercise more often when being investigated by law enforcement.  

So the School Principal has Interrogated Your Child…

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The wisdom of my friend and colleague, Larry McDougal, bears repeating:

A school principal is undisputedly an agent of the State of Texas. Yet the rules that apply to police officers interrogating your child do not apply to school principals. Even if the police officer detaiprincipalns your child and takes them to the principal, as long as the police officer leaves the room prior to the interrogation by the school principal, the rights granted to any person when interrogated by the police do not apply. In the Matter of V.P., 55 S.W.3d 25. This includes the right to an attorney and the right to remain silent. So even though the principal is an agent of the State, they are not law enforcement and the questioning by a school principal is not a custodial interrogation as it would have been had a police officer conducted the questioning of your child.

So now school administrators and police officers are trained to have the principal take all statements or confessions from the child to avoid the constitutional protections afforded all persons when questioned by law enforcement. They will question your child, without notice to you, and anything your child says can be used against them in court. It is a sad day when our schools and law enforcement work together with the intent to deny our children their rights provided to them by both the U.S. and Texas Constitutions along with the Texas Family Code.

No one wants to teach his or her children to lie. Yet parents are forced with the reality of teaching their children not to cooperate with school administrators and law enforcement.

Your children, once they reach the age of 10 in Texas, must know to never admit to anything that they may have done. They must learn to stand up to authority by demanding that their parents be present, that they want an attorney, and they want to remain silent. Children must learn to hold their ground despite being threatened by the principal (or even a teacher or counselor). It is the American school system that has forced parents into this position.

It was not this way 30 years ago. It does not take much to get a young child to admit to something that they did not do.

Overall, this is one of the saddest consequences of our “tough on crime” mentality. Recalling the practices of the past decades, I remember prosecutors teaching law enforcement to “request” interviews and “release” the child after the interview – even if he intended to arrest. The “release” was to show that the child was not “in custody” and therefore the special protections requiring a trip to a magistrate before a statement could be made would not be triggered. Now, we have gone even further to suggest that the school administrators should do the questioning so as not to trigger the constitutional protections afforded to all.

Of even greater concern is that teachers and school administrators are now being offered and taught the infamous Reid technique: a police interrogation technique focused on breaking down the subject and extracting a confession.

Yes, you heard that correctly. Teachers and school administrators are now being taught to extract confessions under a technique that has been charactered by psychologists and judges as coercive and liable to produce false confessions – especially when used on juveniles who are highly suggestible and more easily manipulated.

The Reid Technique taught in schools is composed of three steps:

  1. an investigative component, in which you gather evidence;
  2. a behavioral analysis, in which you interview a suspect to determine whether he or she is lying; and
  3. a nine-step interrogation, a nonviolent but psychologically rigorous process that is designed, according to Reid’s workbook, “to obtain an admission of guilt.”

Even though taught to educators and administrators, outside a law enforcement arena, the video segments to demonstrate behaviors and questioning involved serious crimes such as murder and rape. The materials given to educators refer to suspects or subjects – never students or kids.

Not surprisingly, one of the first things administrators will do is take away the student’s cell phone to prevent calls or texts to parents. Teaching educators to “dabble” in law enforcement is just as dangerous as teaching them to “dabble” in psychology or other sciences. When they get it wrong (not “if” but “when”), we will have false confessions taking children down the prison pipeline with little hope of stopping.

And, why? We already have entire law enforcement agencies created and ran by our school districts. Officers are already on campus or very near campus to respond. Seems one or the other simply isn’t necessary. Ah, but then again, if we relied on our law enforcement officers, we would have to respect the child’s constitutional and statutory rights. And, don’t even get me started on the whole “alternative school” mess…

“Open Carry” NOT “Papers Please”

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Having been made aware of District Attorney Devon Anderson’s advisory opinion to law enforcement officers [below], it appears the debate is alive and well. Whether or not a police officer may stop a citizen engaged in open carry to check for a license is a very real question.Your-Papers-Please-300x175

First and foremost, nothing in the open carry statute authorizes an officer to detain a citizen to determine if they have a license. The ability of a law-abiding citizen to lawfully open carry a handgun does not forego the right to be free from unreasonable searches and seizures.

While Ms. Anderson is correct that an officer may approach any individual in a consensual encounter, citizens are generally free to decline the encounter and walk away. The Supreme Court has consistently held that a person’s refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention.[i]

Her position that anything short of voluntary compliance with the officer’s inquiry should be reasonable suspicion to believe the person is illegally possessing the gun is perhaps too broad. Anderson cites Chiarini v. State for the proposition that courts have routinely permitted law enforcement officers to approach and detain those individuals observed to be in possession of a handgun. Recognizing that Chiarini was decided prior to the open carry law, we note that observation of a handgun may no longer carry the same connotation of illegal conduct.

There are three types of police-citizen inter-actions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. Such consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment seizures. However, investigative detentions go beyond the consensual encounter and impact the Fourth Amendment rights of citizens.

Ms. Anderson’s position that declining the officer’s inquiry should be reasonable suspicion to justify an investigative detention discounts the necessity for reasonable suspicion. If declining an officer’s inquiry amounts to reasonable suspicion, then a citizen could never resist an officer’s inquiry. Consistent with Supreme Court opinions, an officer may only detain (stop) someone when the officer has specific, articulable, and individualized facts to make it reasonable to suspect that the person may be committing a crime.

In any event, if an officer does detain a citizen solely for engaging in open carry, that detention must be brief and limited to determining whether or not the citizen has a license to carry.

HCCLA will encourage lawyers to challenge the validity of any detention that fails to comply with the long established constitutional requirements governing the seizure of citizens. Though an officer may engage in a consensual encounter with any person regardless of their choice to open carry, nothing in the statute divests an otherwise law-abiding citizen of his or her constitutional rights. Generally, citizens may decline the consensual encounter and expect law enforcement to meet reasonable suspicion standards prior to their detention.

Much like a drivers license is required to legally operate a motor vehicle on our Texas roadways, a license is required to carry a handgun both openly and concealed. Law enforcement does not stop every vehicle operator to present his or her license. Why would they stop every open carry citizen?

Instead, it sounds as though Devon Anderson doesn’t support the Republican platform for open carry. While the Governor preaches liberty, Ms. Anderson wants to usher in an era of “papers please.” This is not what one expects in a free society. Ms. Anderson must accept that elections have consequences and the peoples elected legislature has spoken and approved open carry throughout Texas and Harris County.

____________________

[i] Wade v. State, 422 S.W.3d 661, 664-665 (Tex. Crim. App. 2013), citing Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality op.) (a suspect’s refusal to listen or answer a police officer’s questions in a non-seizure circumstance “does not, without more, furnish” the officers with reasonable suspicion for a seizure.).

 

View and Download Devon Anderson’s Advisory Opinion Here

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Basic Traffic Stop Reconstruction

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Practice Pointer: Basic Traffic Stop Reconstruction
by: Tate Williams

Justice Ginsburg’s April 21, 2015, opinion for the majority Rodriguez v. the United States immediately states, “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.[i]

Whether a traffic stop takes too long, absent reasonable suspicion of another crime, is suddenly of paramount importance when other evidence is discovered as a result of the detention. This is not every case, but it is many cases where, as in Rodriguez, a stop is prolonged for the arrival of a narcotics detector canine or some other purpose.

Litigating this issue requires not only a familiarity with 4th Amendment jurisprudence, but the ability of the defense lawyer to re-construct and present the encounter between the accused and law enforcement to the Court. That exercise is one that is easily learned and will improve the attorney’s practice in all cases.

Gathering the Evidence

Information commonly available in Harris County criminal cases, if obtained, allows the counsel, a judge and a jury to begin to evaluate the reasonableness of the detention. In addition to any officer’s report, the three most frequently available sources of evidence in local traffic stops are:

  • Mobile Data Terminal Logs,
  • In-Car Videos,
  • Dispatch Audio.

Obtaining these materials requires diligence shortly after the arrest as many agencies only preserved them for a limited period of time. Sample subpoenas are on the HCCLA site. One may also make a Michael Morton Act request, but it is frequently better to know what they contain before you alert the prosecution to their contents.

If the agency moves to quash a subpoena, then one might determine it necessary to file a written motion stating exactly what is sought, what it is expected to show, why it is relevant, and cite the statutes and the accused’s constitutional rights to confrontation, counsel, and to present a defense.

If an agency denies the existence of the information, verification may be required via a subpoena, Public Information Act, or other form of request for information related to that denial:

The maintenance records on the relevant patrol vehicle;

  • A complete list of all vehicles with recording equipment;
  • A complete list of officers with body cameras;
  • Video use and preservation policies.

The General Orders, Standard Operating Procedures, and lists of patrol units with recording equipment are items that HCCLA has previously obtained in admissible form and shared in the member’s section of the web site and may do so again in the future.

The Types of Evidence

Police Reports are generally not admissible as evidence in criminal cases. They may be used for impeachment purposes or to refresh an officer’s memory, but almost no local judge will allow it to be entered into the record. The following materials, though, may be obtained and offered pursuant to the business records exception.[ii]

MDT logs (sometimes referred to as call slips) are useful because their time stamps are reflected to the second as to when data was sent and received. After one learns how to read them, they are a reliable source of when the stop was made, when the officer requested additional information about client’s vehicle or criminal history, what else may have been communicated and when it was completed.

Any video recording should be watched and transcribed. Personally transcribing it word for word allows the attorney to learn the video. Time stamps should be made every few lines and at key events for later reference. Non-verbal conduct may be placed into parentheticals.

Dispatch tapes are also helpful but may be difficult to understand. They often contain statements from officers not contained in the MDT logs or reports such as a request for assistance by specialized units. Unfortunately, they do not contain time stamps but can be compared against the MDT logs to determine the identities of the speakers and relative timing of events.

Using the Evidence

Timelines are often helpful for case investigation and presentation to place consistent or conflicting evidence into an easily digestible format. Each of these discovery materials may be placed into their own timeline or combined into one indicating the source of the event.

Some lawyers construct timelines using columns on flip charts or chalkboards, spreadsheets in Microsoft Excel, or even foam story boards with actual still shots, document shots, audio clips etc., or a combination. The preference is personal may depend on whether it is in preparation or for use at trial with witnesses, pleadings, or argument.

However presented, it has to tell the tale of the stop accurately and effectively. These materials may sometimes be offered into evidence as a shorthand rendition of testimony if presented through witnesses or possibly as a summary of voluminous records.

Regardless, beginning to construct a with the paper materials to (report and MDT logs) allows one to quickly construct a skeletal timeline that one can more easily place events from the recordings into as they are reviewed in preparation or before the Court.

The purpose of the timeline is to show what actually happened. However, to illustrate unreasonableness for a judge or a jury it is sometimes necessary to show what should have happened.

Setting the Standard

In much criminal or civil litigation there is an appropriate standard of care against which a party’s conduct or a witness’s testimony is measured.   Police conduct is no different.

Whether required by statute or the standards of an accrediting body such as CALEA (which both the Houston Police Department and Harris County Sheriff’s Office aspire to adhere to) almost every law enforcement agency has enacted “General Orders” or “Standard Operating Procedures.” These are written directives by which they operate internally and against which they evaluate their own performance. In the Houston Police Department, these are formulated and promulgated by the Inspections Division’s Policy Development Unit (PDU).[iii] The Sheriff’s Department has a similar process.

Traffic stops and other investigations are often governed by these policies and may articulate standards against which the officer in a particular case should be judged. They should be reviewed to at least understand how the officer is trained to perform his duties and respect the rights of citizens. They frequently include not only what an officer is required to do, but in what order and reference other relevant policies.

These policies may be used to make a rough outline as to how an investigation should proceed for reference to what the evidence actually shows. They can be placed into the timeline to show what should have occurred and actually did or did not. If there is a violation of policy or a variance between what should have happened and what did happen, it could be argued that this is evidence of unreasonableness in prolonging the detention.

The Exercise is Good for You

Not every detention is unreasonable and not every investigation will yield evidence supporting suppression. But a large portion of criminal cases result from traffic stops and reconstruction of events with reference to source materials is easy to perform with materials easily and readily available. Once mastered, it is a skill that easily translates to any other type of case.

Knowing what the evidence is and isn’t is the foundation of any representation and the lawyer’s ability to properly advise a client.

If for no other reason, timeline reconstruction is valuable because it forces the lawyer to review the evidence in detail and reduce it to a format that can be easily referenced with the client, investigators, and at trial.

[i] United States v. Rodriguez, No. 13-9972, slip. op. at 1 (April 21, 2015) citing Illinois v. Caballes, 543 U. S. 405 (2005).

[ii] See Tex. R. Evid. 613, 803(6), (8)(B), and 902(10).

[iii] HPD Command Overview Manual, 2014, http://www.houstontx.gov/police/department_reports/command_overview/Command_Overview_Manual_2014.pdf

Will the Harris County District Attorney Accept Responsibility?

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Our clients have problems.

Despite their denial, the Harris County District Attorney has problems as well.

They want our clients to accept responsibility. Will they as well?

In yet another instance, injustice and an appearance of impropriety permeates the Office of District Attorney for Harris County. Apparently, it seems the prosecutor and the bailiff engaged in a series of conversations and text messages about the jury. The importance of this is two-fold: (1) the bailiff, a Harris County Deputy Sheriff, is an officer and arm of the court who is the only person authorized to speak with jurors and (2) the prosecutor is an officer of the court who is forbidden from talking to the jurors. Granted, the prosecutor did not engage in direct communications with the jurors; however, she did attempt to communicate through the bailiff.

She texted the bailiff saying she wished she knew what the jury was thinking. The bailiff responded saying he would find out. THAT IS INAPPROPRIATE. There is no way to spin this so that any part of that conversation was proper and within the rules that require the court (via his bailiff) and the parties (via the prosecutor) to avoid the appearance of impropriety.

So what’s the big deal? Well, the thing is this is just one of many instances – all seemingly small – which cast doubt on the ability to have a fair trial in Harris County.

When will Devon Anderson accept responsibility? She didn’t in her response to our request about Dan Rizzo and the Alfred Brown case. She didn’t in an inquiry about prosecutor’s Connie Spence and Craig Goodhart threatening witnesses. She hasn’t in her media responses to the Kelly Siegler findings of prosecutorial misconduct. And, she hasn’t here. What will it take?

 

Prosecutorial Misconduct Must Be Addressed

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Sadly, Harris County District Attorney Devon Anderson has declined our request calling for an investigation into former prosecutor Dan Rizzo’s conduct in the Alfred Brown case.

She cites expired statutes of limitations (the time in which a criminal charge or grievance can be brought).

Download (PDF, 365KB)

Though the prosecutor has declined any follow-up, we remain vigilant in our investigation into what appears to be yet another instance of prosecutorial misconduct.

When a person takes steps to conceal their behavior, the statute is tolled, and it seems clear that Mr. Rizzo did just that: he concealed exculpatory evidence, he colluded with a cop to intimidate a witness and then falsely charge that witness in a criminal case, and he used the veil of grand jury secrecy to carry out his witness intimidation.

The State Bar has already established new rules for bringing grievances, even years later, where a prosecutor commits misconduct, and the time for filing the grievance now runs from the time of discovery. So much of this tragedy, while occurring years ago, has just recently been discovered.

This is such a blatant attempt to dodge responsibility that it should, along with her statement today regarding the pending decision about prosecutorial misconduct by Ms. Siegler,* result in the consideration of a possible court of inquiry as former prosecutor Ken Anderson faced in the wake of the Michael Morton tragedy. (*Devon Anderson was quoted as saying, “Any actions such as reopening an investigation into this case would be premature.”)

Police: The New Gang in Town

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A recent Texas Monthly article, Police Violence — The More Things Stay the Same, parallels the 1977 Texas Monthly cover and its companion article to today’s police brutality, both in Texas and beyond.

Neww gang thumb

The 1977 cover and article depicted Houston Police as a biker gang, the new gang. On the heels of the Joe Campos Torres, Jr. murder, then Houston Mayor Fred Hofheinz, obviously anguished, said: “There is something loose in this city that is an illness.” His sentiments were echoed by famed criminal defense attorney Percy Foreman who called Houston a “police state.” Percy continued, “The Houston Police Department is worse, and its officers more violent and unchecked, than any comparable police force in the country.”

A little history as an aside: Torres, a 23-year old Vietnam Veteran, was arrested in May 1977 for disorderly conduct at an east-side Houston bar. The six responding officers took Torres to a place called “the hole” near Buffalo Bayou and severely beat him. When the officers presented Torres to the jail for booking, jail personnel ordered Torres taken to the hospital. Instead, the officers returned to the bayou and tossed Torres into the water with his hands still cuffed. Days later, Torres’ body was discovered in the water.

The two officers who were tried in state court on murder charges were convicted of negligent homicide and given one-year probation and a $1 fine. Later officers were tried in federal court and were convicted and served 9 months in prison.

The outrage over the officers’ action and their punishments led to riots and protests.

These 1970’s accounts of police violence parallel today’s accounts: a policeman in McKinney, Texas drawing his service weapon on a group of African-American teenagers in swimsuits; a Harris County prosecutor using a grand jury to browbeat an alibi witness; the officer shooting of Michael Brown in Ferguson, Missouri; and the police shooting of mentally ill Kajieme Powell in St. Louis.

Of particular interest to us in Harris County, Percy Foreman blamed the 1970’s police violence on Harris County prosecutors who have “’white-washed every charge against policemen,’ thus encouraging even more police violence by letting police know that they are free from the sanctions of the law.” It’s telling that Percy’s take on violence then is echoed by Harris County defenders still today and the remarkable rate at which Harris County grand juries wash charges against policemen.

Anyway, the article is worth the read as it goes on to analyze the military-styled police state and their training, particularly that since 9/11 police have been trained to OCCUPY rather than PROTECT.

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