Tuesday, June 18, 2019

Joe Gamaldi's Press Release

The Houston Police Department held a press conference today announcing that they had re-arrested Andre Timothy Jackson for the 2016 murder of 11-year-old Josue Flores.  As noted in the Houston Chronicle:
The indictment comes three years after police first arrested Jackson and charged him with murder — charges that prosecutors later dismissed over concerns they would not win at trial.
Apparently, evidence which had been collected during the initial investigation three years earlier just now provided a DNA link between Jackson and Flores.  It is not clear what piece of evidence that DNA was collected from or who that DNA belonged to, but my educated guess is that a piece of evidence belonging to Jackson may have been found to have Flores' DNA on it. 

Enter Houston Police Officer's Union President Joe Gamaldi. 

Gamaldi has been relatively quiet since his infamous "dirtbags on notice" press conference in the wake of the now-infamous HPD raid that left two citizens dead.  He's been around, continuing his on-going battle with Harris County District Attorney Kim Ogg, but there hasn't really been anything noteworthy to report. 

Today's press conference over the arrest of Andre Timothy Jackson, however, provided Gamaldi the opportunity to do two of his favorite things: 1) tout the awesomeness of the Houston Police Department; and 2) bash District Attorney Kim Ogg.  Gamaldi released the following press release:



There's nothing wrong with Gamaldi giving HPD Homicide a shout out for their hard work and dedication to this emotionally grueling case.  However, Gamaldi wasn't content with just giving his officers an attaboy and going about his business.  He decided that he needed to fire a couple of shots at Kim Ogg in the middle of this otherwise feel-good arrest story.
However, what has not been reported today is the defense attorney for Andre Jackson filed a motion several months ago to have all of his property/evidence returned to Mr. Jackson.  This included the key piece of evidence that the DNA would later be extracted from and would be material to any future trial.  In an act of what can only be described as gross incompetence, the Harris County District Attorney's Office inexplicably did not oppose this motion.
In this, Gamaldi is correct.  If the District Attorney's Office dismissed the case against Jackson in 2016 but hoped that further investigation would allow prosecution at a later date, then they absolutely should have fought tooth and nail against any motion to restore property to Jackson.  Their failure to do so is, as Gamaldi put it, gross incompetence.

But Gamaldi didn't stop there.
. . . Andre Jackson would be free to pick up his property and all the evidence belonging to him, that the Houston Police Department had in its custody.  Which Mr. Jackson actually attempted to do.
Please pay close attention to wording such as "his property" and "all the evidence belonging to him."
If not for the Houston Police Department Homicide Division and Chief Acevedo, who stated that "the items would only be returned over our dead bodies" opposing the motion from the judge, key pieces of evidence would have been turned over to Andre Jackson and lost forever.
So, here is a quick law tutorial for Mr. Gamaldi:  Judges don't issue "motions,"  they issue Orders.  As in, legal orders to do things, like say, return someone's property to him because the case against him got dismissed.

Failure to follow a Court's order is breaking the law. 

A very strong argument can be made that any evidence obtained from Mr. Jackson's property, which was being held by HPD in violation of a judge's order, was illegally obtained.  If a judge were to find that the evidence was illegally obtained, then a judge might find himself or herself well within his or her rights to suppress that evidence.  That same judge would also then suppress the results of any testing done on those items.

Gamaldi's press release indicates that key evidence belonging to Jackson was at the center of today's arrest.  Reading between the lines, that seems to spell out to me that a piece of property belonging to Jackson had DNA belonging to Josue Flores on it. 

So, let's throw out a hypothetical scenario.

Jackson gets arrested in 2016 and the police take clothing belonging to him during the arrest.  The case gets dismissed and Jackson files a motion to get his clothing back.  The District Attorney's Office says; "Sure, have your clothing back.  We don't care!" and a Judge signs an order that says, "HPD, give Mr. Jackson his clothing back."   Mr. Jackson goes to get his clothing and HPD basically says, "We don't care what the Judge's order says, you aren't getting your clothes back."  HPD then sends those clothes to a lab, and finds Josue Flores' DNA on Jackson's clothes.

If I was Jackson's defense attorney, I'd be arguing that all of those DNA results should be suppressed at trial because they were illegally obtained from property that HPD had been lawfully ordered to surrender to Jackson.

Gamaldi's press release is so mind-numbingly stupid, because (in his attempt to slam the D.A.'s Office) he basically acknowledges that HPD was breaking the law.  In fact, he seems downright giddy about it.

This would be akin to Tom Brady giving a press conference after the 2015 AFC Championship game and saying, "The Patriots did a great job today thanks to me ordering our equipment guy to deflate the game balls."

Let me be clear here.  I agree completely with Gamaldi's assessment that it was absolutely gross negligence that the D.A.'s Office didn't oppose the return of Jackson's property.  They should have fought with all of the Office's might to prevent that from happening.  But they didn't.

As wrong as that was, it doesn't give HPD the license to ignore a Judicial Order, however.

Personally, I think the remedy would be to exclude the evidence.  I may end up being proven wrong on that.  Several of my former prosecutor/current defense attorney colleagues think that the remedy would be to simply hold HPD in contempt for failing to return the evidence.  They may be correct but isn't holding them in contempt an acknowledgment by the Court that the law was violated?

How it ultimately plays out in court will be interesting to observe.

What isn't in dispute is that Joe Gamaldi didn't do the Houston Police Department any favors with his press release today.

24 comments:

Anonymous said...

When clowns are in charge of everything is it even a circus anymore?

Tom said...

Murray: I'm not real sure on the timeline but it seems that the DA's office dismissed charges on this guy and sometime later, and I don't know how long, a motion for return of property hit the judge's desk. I bet the state was served with the motion by e-mail through electronic filing and someone simply sent it to the court prosecutors. I know I always have the elected DA as the service agent on documents I e-file.
I've been around the Harris County DA's office since 1974, first as a reporter and later as a lawyer. One think that Carol Vance had in common with Johnny Holmes who had in common with Chuck Rosenthal, who had in common with Pat Lykos, who had in common with the Andersons who have in common with Kim Ogg is the constant movement of lawyers from court-to-court. It's always been fruitbasket turnover.
In all likelihood, some poor felony 3 was given the motion and he never heard of the case. It would be a fairly routine motion requiring routine handling. Unless someone was tipped off that the property might contain evidence in an ongoing investigation, it would be routinely granted.
As for HPD's refusal to comply with a return order, I agree with you. Once a judge orders the department to return the property, any refusal to do so is theft. Most judges won't have the nerve to suppress the evidence but it seems to me that Article 38.23 makes it inadmissible.
Which comes to the next issue, the failure of many HPD officers to recognize they are obliged to follow court orders. If someone at HPD knew the property contained evidence in an ongoing investigation, rather than simply refusing to release the property, HPD should have contacted the DA's office, explained the situation and had the DA's office move the judge to reconsider the order. I can't imagine a judge in Harris County or anywhere else after being told the property he ordered returned was evidence in a continuing investigation not rescinding the return order.

Tom said...
This comment has been removed by the author.
Dane said...

Please know that the evidence relied upon for further testing had already been preserved. Officer Gamaldi has never been part of this investigation and it is irresponsible and inappropriate for a labor representative to speculate about evidence in an ongoing prosecution – especially one when he does not have first-hand information as to what is actually taking place. He is yet again exploiting the emotions of crime victims and misleading the public to draw attention to himself.

Thom said...

What, a well. Thought out, and written letter. By Gamaldi.

Anonymous said...

Police officers need to oust Gamaldi, he's not doing them any favors and seems to stick his foot in his mouth whenever he opens it. He actually reminds me a lot of Trump, he should be evaluated for narcissistic personality disorder.

Mark W. Stephens said...

Maybe I'm pointing out the obvious, but I haven't seen it discussed yet. Joe Gamaldi was not involved in the investigation or the court decision or the Chief's decision to refuse the order. He simply wrote about the current events, and correctly exposed the DAs "gross incompetence." Whether you found the rest of his press release abrasive or not, it has no bearing on the outcome of the case. He didn't say anything related to the case that everyone actually involved in the case didn't already know, Judge and DA included.

The interesting thing now will be to see if the Judge has the guts to toss the case and face the political firestorm that would surely follow.

Anonymous said...

why didn’t HPD Homicide request the certain testing be performed the first time around instead of requesting it to “firm up” the case on the back end.

measure twice, cut once. quit blaming the prosecutors. cases aren’t won at the PC level.

getting an arrest is great but it really amounts to a fair catch. don’t spike the ball til you get over the goal line.

many/most cops have no idea about legal sufficiency of evidence and the amount of work it takes for prosecutors to unfuck the mistakes or ineptitude of detectives.

i have a master peace officer certification, three college degrees and have worked for a DA’s office for almost 25 years & can attest to what its like to work up a case from the alpha to the omega.

HPD needs to remember what Winston Wolf had to tell Jimmy and Jules...

Murray Newman said...

Mark,

I don't care whether or not Gamaldi was abrasive. Quite frankly, there are many things that I'm glad to see him take the Ogg Administration to task for. My point here was that his press release was bragging about HPD breaking the law and jeopardizing the case. I get his motives but I don't get his methodology on this one.

Mark W. Stephens said...

Murray,

I wasn't involved in this case, so I don't have all the facts. But the case seemed to be in jeopardy anyway. Mistakes were made early on, and then the DAs office failed to challenge the return of crucial evidence to the suspect. If that occurred the case was lost anyway.

It came down to two options. 1) giving the evidence back to the crook and losing any chance to prosecute a case of the brutal murder of a child, or 2) keeping the evidence and proceeding with the investigation, expecting legal challenges.

If what the police department did was "illegal," the Judge will say so. That is not for us to determine.

Was it a calculated risk? Absolutely.

The only question I see is whether it was worth the risk. That is yet to be seen.

I didn't see Joe's press release as bragging about the police department breaking the law, as much as I saw it as a dig at the DAs office. Ogg taking credit after screwing up so badly was a little hard to swallow, so I understand where he was coming from.

Which brings up another point. If the police department broke the law, as you say, wouldn't then Kim Ogg be complicit for proceeding with the case, after the fact??

Clearly, the District Attorney did not see the police department's action in keeping crucial evidence as "illegal."

Anonymous said...

Yeah, he sure seems to shoot off half cocked. I see he hasn’t made any more comments on the botched raid. Maybe he should let the real cops do their job without trying to make more obstacles? Do other big cities have the same public sniping between arms of the law? Genuine question. It seems like police, prosecutors, and judges picking fights with each other is not a good look.

Anonymous said...

I like Ogg. She's got the man-stones it takes to clean up the largest and most corrupt police department in the country. I think the public supports her efforts and will side with her over HPD if she somehow manages to shake loose all the dirty dealings that HPD is responsible for. As defense attorneys, a lot of us know that a good cleaning from the bottom to the top has been needed for decades at HPD. https://www.chron.com/news/houston-texas/article/DA-threatens-to-subpoena-police-for-names-of-14025877.php?cmpid=hpctp

Anonymous said...

This is a pissing match between the DA's office and HPD. Gamaldi doesn't like Ogg (or the Judges) nosing around the Narcotics Squad in light of the Harding Street fiasco. HPD is pissed that the DA's office (and some of the judges), have worked out and approved really nice deals that have placed violent offenders on community supervision, or let violent offenders out of jail on relatively small bonds.

Anonymous said...

@June 20, 2019 at 4:27 PM

Police, prosecutors, and judges were never supposed to work as a team as opposed to separate entities with justice as their goal. There should be some animosity between the three to keep everyone shooting straight. Otherwise it becomes a good ol boys club like exists in Montgomery and other smaller surrounding counties where a judge doesn't stand a chance getting elected without the support of the district attorney and police, and, once elected, their robe may as well be emblazoned with badges from both because they are owned.

@June 21, 2019 at 7:46 AM

The system is corrupt. Those who know how to work it get breaks every day: https://www.mysanantonio.com/news/local/crime/article/South-Texas-judge-wants-drunk-driving-arrest-to-9096069.php

Anonymous said...

Anon @ 9:42

If Ogg is trying to "clean up the largest and most corrupt police department in the country" then why did she hire Clarence Bradford, easily the most corrupt HPD Chief in recent memory? A man, who while running for District Attorney said, "I am the better candidate for DA because I have the unique experience in both enforcing the law and being charged as a criminal."

I only wish I was making that up

Anonymous said...

Anyone who puts too much stock in the words of a union leader, any union leader, as though he truly speaks for anyone else in his organization, needs to have their head examined. Both the police and fire union leaders make comments that are full of half truths in order to persuade area voters of their stances, all too few of us spend the time to dig a little deeper based on our own partisan beliefs. As far as those calling for Gamaldi's head, even suggesting he can somehow be held criminally responsible for raid's he wasn't part of or evidence he never had custody of, please feel free to step back when you aren't drinking so heavily because he's just a hack in a legally protected position that is able to flap his gums as he sees fit. Murray is right of course that he's doing his members no favors but it's protected speech.

As far as who is responsible for carrying out the judge's order, given the police chief stepped in to declare the evidence would not be turned over, that pretty much negates anyone else in the organization getting in trouble over it unless they are specifically named in the court order. Speaking to that point, the legal paperwork to ask the judge to reconsider was displayed in most media websites so it's not like they aren't availing themselves of the legal processes set up for such a conflict, wishful thinking aside how this will lead to HPD being cleaned up or otherwise taken to task, is just tin foil ranting by the usual anonymous suspects. Murray is much more familiar with HPD than I am but in my modest dealings with the department, I've found them far less corrupt than other agencies, locally or elsewhere, but those with an axe to grind probably see things differently.

Lastly, I'm sure that Ms. Ogg's ability to cripple the HCDA's office since taking over has made her the champion of some in the community. Given the wealth of experience and talent that has departed, I'd be surprised if many remaining could prosecute anything other than a slam dunk case these days. Some on the defense side of things like that idea regardless of how it impacts the rest of us but despite your wishful thinking that the public is going to rally to her side, the opposite is more likely to prove true in the next election. When the public sees the DA's office unwilling to fight to keep horrible criminals behind bars or offer some of the sweetest sweetheart deals you will find anywhere in the country, the public is not going to support it for long. If only the local defense bar could get that imaginary cleaning from the bottom to the top, it would certainly help improve the system for the better but that's wishful thinking on my part. ;)

Anonymous said...

Much like James Comey, I bet you fancy yourself the most self-righteous person in the room. You know what a $1.00 and your 25 years of experience will get you? Let me tell you, a large coke at McDonald’s. Get over yourself!

Anonymous said...

Friendly fact checker here! HPD is neither the largest police department in the USA nor is it the most corrupt. Nice try Mr. Defense Attorney. A quick search of your favorite search engine would show you the NYPD, LAPD, & Chicago PD are much larger than HPD. As for most corrupt, I suggest you turn your attention to places like Detroit & New Orleans.

Anonymous said...

Perhaps the best way to judge "how corrupt" a policing agency is would be by the number and scope of consent decrees, memos of agreement, and voluntary deals the Department of Justice have placed on a department. Going back 25 years or more, you'll find HPD has certainly been looked at a few times but has never had such an arrangement inflicted on them. Many other large cities, as well as the smaller counties and cities most of us have read about in the headlines, have indeed been on the receiving end of these, including Chicago, NYC, LAPD, and others. A snapshot from a few years ago shows these aren't isolated occurrences : https://www.justice.gov/opa/file/797666/download

Another way to judge would be how many times the FBI swept in to take over an investigation or issue an advisory about how a case was handled. Care to guess how many times the FBI has done that with HPD over the last 30 years, either for police misconduct or otherwise? That doesn't mean HPD hasn't had troubles, the ongoing crime lab fiasco's thanks to "leadership" by people like Clarence Bradford, the resulting deficiencies by underpaid and under trained civilian CSI staffers, or the constant shuffling of personnel to appease their showboat chief's desire to embrace community policing as though he invented it, despite the need for far more officers-these are some of the more notable problems.

Anonymous said...

dunno about the Comey comparison. i was initially impressed with him years ago when he intervened while Ashcroft was gravely ill but was disappointed after his press conference regarding the decisions in the HRC mail server matter. my credibility isn’t even on the dollar menu - i will freely admit my many limitations. just pointing out that I’ve seen plenty of cops stuck in autofellate mode after an arrest without their having much insight as to the bigger picture of discovery, pretrials and what it takes to secure a guilty verdict. have you ever seen a detective testify in a suppression hearing by explaining case law to a judge? sadly and too often i get to witness the Dunning-Kruger Effect unfold IRL. i wish this didn't have to happen. my apologies if I inartfully or inadvertently struck a raw nerve in the original comment.

Texas Justice said...

Mr Fact Checker, the defense attorney who wrote of how corrupt HPD has been and still remains, the attorney is speaking the unadulterated truth.As a crime reporter and reporter of case study of nationwide criminal justice and policing the Houston Police Department has one of the corrupt departments in police history. HPD brutality and planting of evidence of non-whites ran rampant for many years. I recall when officers would have Civil Rights Meeting. What this meant? Answer: a group of redneck cops would transport a black person to a hideout where they would beat the handcuffed person bloody. And, later, they'd claim, the person tried to fight them. HPD also issued unwritten discretionary order for officers to kill unarmed burglars at night during 1970s. Racism in the department was so rampant in the department until some of the Black officers started their own Black officer group.Does the aforementioned info that I just shared sound like corruption? Oh yes, don't forget how police killed Randy Webster and planted a gun on him. Guess who brought the gun to the scene to be planted? Hold on to your seat on this one. Answer: a police captain! HPD police chief Carroll Lynn went to prison for extortion. And Lynn also had direct ties to New Orleans Mafia. Even as recent as 10 years ago, an HPD IAD Sergeant kidnapped the wife of a fellow HPD officer in an attempt to steal $50,000.00. Should I say more?

Texas Justice said...

Do you have a link about Bradford saying He had been a criminal. I remember Bradford's first statement.

Texas Justice said...

Bradford didn't assist, aid, or abet, those lazy, incompentent, crime lab techs to lie on the witness stand about evidence, exaggerate their DNA training etc. Let's start with James Bolding. Do a Chronicle Google search.

Anonymous said...

Texas Justice, since you don't specify which comment you are referring to in your replies, I'll take a stab at your three comments, given the limited amount Murray blogs these days you probably won't get many other responses by jumping in weeks after the last posts.
1) The bulk of your first comment deals with HPD from over 40 years ago. Suggesting their department currently engages in those practices or that they were ever widespread is simply not true. It should be noted that the African American officer association was formed in the 1970's by officer Young for a variety of reasons, racism included, but it was not the sole reason nor was that the biggest issue. The kidnapping case starred Andres Reza who was charged in 2002 so your time frame is off there as well, his own people catching him and helping to sentence him to 27 years in prison, in an organization of over 5200 officers it shouldn't be surprising to find one or two doing wrong from time to time-we could compare statistics of Houston cops to prison system workers or associate professors charged with crimes if you like to find out which are more prone to committing crimes if you like.
2) I recall Bradford using words to that effect several times on the campaign trail during his run to become the DA. Perhaps Alan Bernstein could give you specifics since he covered the field at the time, otherwise you can Google it.
3) As Chief of police Bradford was in charge of the crime lab and ignored worker pleas for more training, manpower, and for repairs to the building where evidence was stored. He did not provide the funding nor did he champion adequate funding while ignoring complaints by local lawyers representing suspected criminals regarding evidence problems and incompetent lab techs. If you believe he should get a pass for any of the crime lab scandals that developed on his watch, you deserve the kind of results he provided-he even demanded his cops not speak with defense lawyers about cases, all of which is documented.

Episode Seven: The Voters Awaken - A One Act -Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston. [INTERIOR] The Imperial Council Chambers. EMPRESS OGG sits at the head of a long table ...