Criminal Justice

Call for Houston Forensic Science Center Independence

September 7, 2016 Leave a Comment

After years of backlogs, mismanagement, and severe criticism, the HPD Crime Lab was removed from within HPD’s control. An “independent” lab, the Houston Forensic Science Center, was formed. Now that independence is under attack.

A recent audit revealed problems with HFSC’s crime scene units and evidence collection. In short, the audit revealed not only a lack of training and technical problems but also a lack of autonomy from HPD.

The Houston Forensic Science Center is now the subject of attempts by the Houston Police Officers Union and the Houston Police Department senior staff to regain control of the Crime Scene Unit (CSU) technicians. These are the same folks who investigate crime scenes related to police shootings and serious felonies such as capital murders, aggravated sexual assaults, aggravated robberies, and kidnappings.

Since the independent lab was created, the CSU positions have been gradually transferring to civilian positions under the independent structure of the HFSC. This has been done by replacing retiring and transferring HPD officers with civilian techs as those officers left. Now HPD is attempting to take back those CSU positions and once again staff them with officers within their chain of command.

The Houston Forensic Science Center was established because of a tragic history of mismanagement, bad science, and outright incompetence under HPD’s management that led to wrongful convictions and serious doubts about the integrity of our criminal justice system. None of us want a return to the multiple problems that existed when the functions of forensic science were directly under the Houston Police Department. The endless series of scandals and problems that led to the calls for decertification and removal of the labs from the police control are exactly what the HFSC was created to avoid. To send the technicians back under HPD command destroys all the progress made in the last decade and sets this city back just as far. It has already cost this city millions in lawsuits, reworked science, and wrongful convictions. We cannot expect to improve upon the past by repeating the mistakes of the past.

HCCLA vehemently opposes any attempts to weaken or undermine the independence of the HFSC and its personnel.

We are the largest local criminal bar in the country, and we urge the Mayor, the city council, and all interested parties to continue to support the independence of the HFSC. Politics is a poor excuse for a sub-standard criminal justice system. We have had that in Houston; we do not need to return to those days.

“Open Carry” NOT “Papers Please”

December 30, 2015 Leave a Comment

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.

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[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

Download (PDF, 941KB)

parole board’s clemency work should be transparent

August 7, 2015 Leave a Comment

Op-Ed as published in the Houston Chronicle:

Requiring appellate boards to give a written opinion why an applicant’s request was denied a good start
By P. F. McCann Published 4:07 pm, Wednesday, June 17, 2015

The Legislature is done for another 18 months. That means, to paraphrase one 18th-century wit, that for a time, our lives, liberty and property are safe. However, the end of their session is not the end of the fight for fair treatment and open government in the process of pardons and commutations.

Pardons and commutations are an old executive privilege, one that originated as an act of grace from the kings of old. We tossed out kings a long time ago here in Texas, but we kept one of the more moral features of that old system – the right of our elected leadership to dole out mercy. We love our jury trials here, but they often get it wrong, sadly.

That is why we have appellate courts. It is also why we kept the right of leaders to grant reprieve.

Often, one sees that mercy displayed (well, truly, more often it is not displayed) when a person comes up for execution in Texas. At that time, the Board of Pardons and Paroles, in the Executive Clemency section, will vote for or against a recommendation for commuting (an old word meaning, “to change”) a sentence from death to one of life in prison.

The governor can only grant such a request if the board returns a favorable vote, and those are few and far between. I know because my colleagues and I obtained one such recommendation for a condemned man once in 2009. Gov. Rick Perry chose not to grant that request, though he had granted a tiny handful over his years in office. I mention this so that the reader knows I am familiar with the process first-hand, not as an academic study.

His record, and frankly, the board’s, was even more abysmal in terms of granting pardons or commutations on noncapital cases. Every year of his term in office, Perry and the board (all members were appointed by Perry) received hundreds of applications from nonviolent offenders who had served out their time and reformed, or who had been sentenced for heavy terms of years for minor crimes.

Each year, the board routinely rejected the majority of applications for minor technical reasons having nothing to do with the merits, then voted to recommend a small handful of applications, the majority of which the governor then denied.

In 2013, for example, the board received 632 applications for commutations, pardons and restorations of civil rights. The board only voted on one application for commutation out of 106. It recommended denial. Out of 17 applications for pardons based on actual innocence, it recommended zero. Out of 20 applications for conditional pardons it recommended, you guessed it, zero. Out of 300 applications for general pardons, only 44 received a vote from the board recommending relief.

The rest were sent back for reasons unknown, often called “technical compliance.” A total of 46 applications actually got the rare privilege of a recommendation from the board. Of those, Perry granted 12. Twelve. So, about 2 percent of applicants get relief, based on an executive’s whims.

I say whim because the process has always been a complete mystery to all the folks who apply, regardless of whether they have a lawyer’s help. There are no written opinions issued by the board, or public meetings where the debates among the parole board can be heard.

The governor rarely expresses his opinions or reasons for denial except for an occasional good moment of political theater on an execution date. The rules are opaque and the board meets in secret, with no requirement that its decisions or its reasoning even be communicated to the applicant. But it doesn’t have to stay this way. It is time now for a new governor to begin issuing such decisions, and perhaps, to change how the process works.

Our new governor, Greg Abbott, is an attorney and a former judge with a long history of judicial opinion writing. While not all of us in the legal profession always agree on everything, the value of a clear, transparent process and written public opinions as to why a person was refused or granted a commutation or a pardon would be a welcome change from the last two decades of merciless rejection shrouded in the secretive fog that blinds democracy.

That is something this governor can do, and should do now. We should all challenge him to do so, and to open the process once again so that the people of Texas can actually understand how and when mercy is given, or taken away.

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association.

Nothing To See Here, Move Along People

August 2, 2015 1 Comment

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:

Download (PDF, 200KB)

Will the Harris County District Attorney Accept Responsibility?

July 18, 2015 3 Comments

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?

HCCLA presents Reasonable Doubt

March 29, 2015 1 Comment

For years, HCCLA has hosted a weekly call-in show through Houston Media Source: live streaming available Thursdays from 8-9pm. Currently, our hosts are Jimmy Ardoin and J. Julio Vela. Former hosts include Dan Gerson, Cynthia Henley, Robert Fickman, Kevin Fine, Todd DuPont, Tate Williams, Neal Davis, Murray Newman, and Damon Parrish II. That’s a lot of hosts over the years! Of course, we have been on the air since 1998!

Each week you can join us for live streaming at Houston MediaSource. Or, check your local cable channel and join the conversation at 8:30p by calling us @713.807.1794 or tweet us @hccla_tv.

Additionally, you can view past episodes on our website or YouTube channel.

Watch us! Call us! Tweet us! and Follow us!

Special thanks to our behind the scenes producers and volunteers who make this happen every week: Thuy Le, Justin Harris, J. Julio Vela and Mark Pirtle.