FOR IMMEDIATE RELEASE
Houston, TX :: November 15, 2018
Joint Letter to Harris County District Attorney Kim Ogg:
FOR IMMEDIATE RELEASE
Houston, TX :: November 15, 2018
Joint Letter to Harris County District Attorney Kim Ogg:
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.
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
If you’ve been following the David Temple story, you know that Judge Gist found veteran ex-prosecutor Kelly Siegler committed at least 36 instances of misconduct and/or hid evidence. A prosecutor’s duty is to do justice. How can justice be had amongst lies, hidden evidence, and a win at all costs mentality?
Now, lawyers for David Temple have requested the Office of District Attorney, which has accepted no responsibility for prior transgressions by its own, to recuse itself from the continuing legal battle.
Instead of determining whether or not recusal is in the interest of justice, Devon Anderson asks, “Why should I?” In essence she says they have not given her a good reason to recuse her office.
How about Justice? How about Integrity? How about Public Trust? How about Appearance of Impropriety?
We can think of many reasons that seem to escape Ms. Anderson.
Read Ms. Anderson’s response here:
After losing a hearing on the constitutionality of the online solicitation of a minor law this week, the Montgomery County District Attorney’s Office, through its First Assistant Phil Grant, has levied media attacks against Judge Kelly Case for political posture.
“Judge Case continues his one man war on our proactive efforts to protect the children of Montgomery County,” stated First Assistant Grant. “This statute is designed to identify and arrest individuals searching for children online to victimize. The methods and procedures used by our investigators specifically weed out those who are merely engaged in twisted sex talk, and arrests are made only when adults get in their car and drive to a location to meet the minor child. The defendants we arrest have made proactive efforts to find and molest children. Judge Case’s rulings continue to place the children of Montgomery County in danger.” Breitbart.com July 29, 2015
Phil Grant, who by no coincidence has indicated he will run against Judge Case in the next election cycle, attempts to paint Judge Case as creating a war on the protection of children.
Using the protection of children as his pawn for political gain, Phil Grant intentionally misleads the media regarding the current state of law in Texas. Rather, Judge Case is following the law of the land in which the Texas Court of Criminal Appeals (the highest court in Texas for criminal cases) has already held sections of this law as over-broad and unconstitutional as it infringes upon the First Amendment’s free speech provision.
Following the realization that this particular law was over-broad and unconstitutional, Senator Joan Huffman (a strong Republican, former prosecutor, and former district court judge) worked hard to introduce and pass new legislation which would presumably cure the error and solidify these types of prosecutions. The Montgomery County District Attorney’s Office supported this new legislation (which takes effect September 15, 2015). They supported it because they knew the law was improperly and unconstitutionally written and needed to be fixed! Now they want to complain that a judge who swore to uphold the Constitution is following the law? That’s absurd. Perhaps this media stance would be different if Mr. Grant had not chosen to run against Judge Case.
Responding to the outrageous attack, the Montgomery County Criminal Defense Lawyers Association issued a statement setting forth the true facts. It can be viewed and downloaded here:
If you want more information on why the statute is unconstitutional, you should read Mark Bennett’s blog on a Roadmap to the Texas Online Solicitation Statute
HCCLA supports the Montgomery County Criminal Defense Lawyers Association in their response. We too are outraged that the Montgomery County District Attorney would launch such an unwarranted attack to aid its own First Assistant’s political agenda.
Updated Courier media with a response from Phil Grant does not sway our opinion or his agenda.
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?
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).
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.”)
Chronicle Editorial Hits Nail on the Head: Hollywood ending, A potentially innocent man sat behind bars so that a prosecutor could get on television.
“an awful lot of razzle dazzle for the serious business that goes down in criminal courtrooms”
Some prosecutors forget. Some never know it to begin with. But, criminal courtrooms are serious business. Life and liberty (for all) are at stake. Criminal courtrooms mean much more than their civil counterparts who fight over money.
It is interesting that most people do not care about the criminal justice justice system; most do not care if rights are trampled; most have no idea innocent people can be convicted; until it happens to them or a family member.
For over 21 years, Kelly Siegler (a Harris County Assistant District Attorney) played fast and loose with the rules. She used the courtroom as her stage for theatrics. Yes, she was aggressive, and that’s ok, as long as it is fair. Hiding evidence is not fair. Subpoenaing witnesses under a different case to hide the witness is not fair. Lying to the court is not fair. Interfering with public information requests is not fair. Continuing to hide evidence long after you no longer work as a prosecutor is not fair.
Just as there are bad influences in every profession, Kelly has marred the reputation of prosecutors, even those who do seek justice. It’s easy to be fair. A web of lies and deceit do nothing for our system of justice, except create injustice.
Today, Senior District Court Judge Michael McSpadden shared his thoughts with Senator John Whitmire regarding jail overcrowding.
While we do not always agree on each issue, we applaud Judge McSpadden for his efforts in pushing for reduction in low-level drug offenses which would clearly have a major impact on our local jail overcrowding. Rather than shipping inmates out of county for holding, pending court (meaning they have not been convicted of anything), had the legislature reduced the “trace” cocaine cases to misdemeanor class C offenses, a substantial portion of those awaiting trial would be released so that courts, law enforcement, and prosecutors could focus on more serious offenses and more violent offenders. Additionally, barring a legislative change, elected District Attorney Devon Anderson could exercise her prosecutorial discretion to serve the same purpose.
Jail overcrowding is a problem. It must be fixed. Shipping inmates around the state for housing is not the answer.
Thanks to Judge McSpadden for at least attacking the problem and offering viable solutions. Read Judge McSpadden’s correspondence here:
David Temple, the innocent man Kelly Siegler finally convicted, may finally get a new trial. In his 19-page findings of fact, Judge Gist notes at least 36 instances of prosecutorial misconduct; he paints a picture of a prosecutor willing to win at any cost and failing to follow her duty to disclose, or timely disclose, evidence favorable to the defense. Siegler, he notes, testified she didn’t need to turn over the evidence because she didn’t believe it was true.
The prosecutor’s personal belief in the truth of the favorable evidence can never be the benchmark for what prosecutors must disclose. Almost always, the Brady information which must be disclosed will be contrary to the prosecutor’s case or at least at issue with a portion of their case. But that’s exactly why it must be disclosed; defense attorneys are entitled to explore and investigate that information which may tend to exculpate their client. Defense attorneys are entitled to information which could harm the prosecutor’s case or cast doubt upon their witnesses. That’s been the law for decades. Certainly, if a prosecutor were to believe the information, her duty would be not only to disclose the information but also to dismiss the prosecution.
HCCLA in the news criticizing ex-prosecutor Kelly Siegler’s conduct in the David Temple murder case (excerpts here):
Gist made his findings after a 10-week hearing that began in December, in which attorneys Stanley Schneider and Casie Gotro questioned prosecutors, investigators and defense attorneys about what happened throughout the murder trial. The two took over Temple’s appeal from DeGuerin.
“The evidence supports the findings,” Schneider said. “I feel relieved. The next step is getting David a new trial.”
Commenting on Siegler’s conduct outlined in the judicial findings, trial attorney dick DeGuerin is quoted:
“I think it’s bad, and I think she ought to be held accountable,” Dick DeGuerin said. “But I’m going to let someone else decide that.”
On behalf of HCCLA,
JoAnne Musick, president of the Harris County Criminal Lawyers Association, said Gist’s findings show “egregious” conduct.
The organization of defense attorneys is reviewing transcripts of the hearing to determine if a grievance should be filed.
“Whether it’s Morton or Graves or whoever, we see prosecutors who want to win, so they don’t want to disclose everything,” Musick said. “If they’re hiding things or playing games, that’s not upholding their duty to do justice. That’s trying to win.”
One of Temple’s attorneys who spent days questioning Siegler blasted the former prosecutor:
“Charles Sebesta was just disbarred for this same kind of conduct,” said Casie Gotro. “Dick DeGuerin stood on the courthouse steps and told the world Kelly Siegler had finally convicted an innocent man. These findings reveal exactly how she did it.”
This is certainly one story that will continue as Judge Gists’ findings are forwarded to the Court of Criminal Appeals for review.
The Houston Press is following this story as well, read more (excerpts here):
Prosecutors “intentionally, deliberately, or negligently failed to disclose” investigators’ reports and witness statements that pointed to other suspects, but Siegler continued the suppression even following the conviction, according to the findings.
Siegler testified in the habeas hearing that potential exculpatory evidence didn’t need to be disclosed if prosecutors “did not believe it was true,” according to the findings.
Gist also wrote that Siegler influenced post-trial maneuvers by telling police and officials within the DA’s Office not to disclose public records if they were requested. The findings also state that Siegler continued to pull strings even after leaving the DA’s Office in 2008, after 21 years, by getting an alleged witness who approached DeGuerin after the trial to change his story.
In that situation, Daniel Glasscock gave DeGuerin a sworn statement that he overheard another man implicate himself in the murder. Glasscock passed a polygraph administered by the DA’s Office and also gave the same story to a DA’s investigator.
But Siegler “asked” a Harris County Sheriff’s deputy — who was involved with the trial investigation — to contact Glassock and another witness “before they could be contacted by the Special Prosecutor [in the habeas investigation] or current members of the District Attorney’s Office. The Deputy did so and afterwards, their stories were significantly different than the original version,” according to the finding.
“In substance, Glasscock repudiated the most important details to the extent that his future credibility as a witness is significantly impaired,” Gist wrote.
Houston attorney Paul Looney, who worked on Temple’s case before DeGuerin took over, told theHouston Press that Siegler’s ultimate goal was to use the case as leverage to get her own TV reality series — an idea she had unsuccessfully pitched once before.
Siegler then asked to take over the Temple case, which had been languishing for years because the original grand jury chose not to indict.
“This was her opportunity to enhance her resume to the point where she would get her TV show,” Looney said. “It worked, she got the show (“Cold Justice” on TNT). But boy, at what a price. At the price of David Temple’s life, at the price of an entire family’s reputation, and at the price of her own integrity.”
As for Siegler’s impression of exculpatory evidence, Looney said, “If Kelly’s bizarre interpretation of that rule were ever to be the law, then all a prosecutor would ever have to do to keep any witness statement away from the defense is say, ‘Well, I didn’t believe it, so I didn’t give it to the defense.’ That’s never been the law, it would totally eliminate law, but she just boldly stated it — and the only thing I can figure is she’s trying to find some arguable basis to try to defend her law license from the ultimate scrutiny of the State Bar of Texas, which undoubtedly is going to happen over this case.”
But Looney alleged that Siegler not only violated professional ethical standards, but that she committed a felony by obstructing justice.
“If Kelly Siegler’s a lawyer in five years, I’ll be shocked,” Looney said. “And if she’s not a felon in five years, it’ll be because [District Attorney] Devon Anderson decided to protect her own friend.”
Pulitzer Prize winning journalist Lisa Falkenberg hits the nail on the head with her column: Judge is Right: Prosecutor Didn’t Live Up to Her Duty
The prosecutor’s duty is to seek justice, not win at all costs. Her “ego” wouldn’t let her lose this cold case. Cited twice now, once by the appellate court and now by the habeas judge, Kelly’s conduct is egregious and intentional as she hid evidence, failed to disclose evidence, and lied to the court about the evidence.
Is the bar finally getting more serious with prosecutorial misconduct? Just as we sent our letter to Hon. Devon Anderson (Harris County District Attorney) regarding potential prosecutorial overreaching, media accounts of Charles Sebesta’s disbarment blew up.
Texas Monthly reports that Sebesta was found to have violated no less than 5 tenants of the Texas Disciplinary Rules of Professional Conduct, including:
- 3.03(a)(l ): “A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.”
- 3.03(a)(5): “A lawyer shall not knowingly offer or use evidence that the lawyer knows to be false.”
- 3.09(d): “A prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”
- 8.04(a)(l): “A lawyer shall not violate these rules, knowingly assist or induce another to do so, or do so through the acts of another…”
- 8.04(a)(3): “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Charles Sebesta, the District Attorney who prosecuted Anthony Graves, was found to have withheld exculpatory evidence and to have presented false testimony in his effort to convict Anthony and send him to death row. Anthony Graves was ultimately exonerated after spending 18 years on death row, most of which was in solitary confinement.
Coincidentally, HCCLA sent a letter today to Devon Anderson asking her to investigate whether Assistant District Attorney Dan Rizzo committed criminal offenses or disciplinary violations in his role to prosecute Alfred Brown – where it was discovered that favorable evidence was not disclosed and Brown’s alibi witness was badgered by the grand jury until she changed her testimony and withdrew the alibi.
It is time for prosecutors to be held accountable for intentional violations of the law and disciplinary rules. It’s a new age. Change is here.
Download the opinion on lawyer discipline for Charles Sebesta here