Friday, February 15, 2019

Warrants, Snitches and Accountability

Local media is reporting some pretty shocking revelations this afternoon about the botched Houston Police Department raid that occurred on January 28th of this year.  As you probably already know, that raid left five HPD officers wounded and two citizens, Dennis Tuttle and Rhogena Nicholas, dead.  In the days following the raid, there were some early indications that there was more to the story than just a simple search warrant execution that had resulted in a gun battle.

For starters, the affidavit supporting the issuance of the search warrant had been reliant on the word of a Confidential Informant (CI) who had allegedly told the police that he had purchased an amount of heroin from a male at 7815 Harding Street.  The CI also allegedly told the police that the male at the residence had more heroin inside the house and that he had been in possession of a 9mm handgun.

Officers used that little tidbit about the 9mm to ask the magistrate who signed the warrant to authorize them to do a "No Knock" warrant, meaning that they had the right to just kick the door to make entry.  When executing search warrants, officers prefer using No Knock for two reasons: 1) officer safety, and 2) preventing the people inside the place to be searched from having time to destroy evidence.  The alternative to a "No Knock" is a "Knock and Announce" warrant, which officers don't like.  A police officer politely knocking on the door of a drug house and announcing he going to come inside is usually the cue for drug dealers to start flushing their product down the toilet.

Unless a warrant articulates a particularized need (normally officer safety) to make entry without knocking, the presumption is that they must do a "knock and announce" before making entry.  Usually, officers point out the danger to themselves by describing their belief that a person with a gun is inside the place to be searched.  Since the vast majority of people who deal drugs out of locations are armed, it should not be surprising to know that "No Knock" warrants are quite common in narcotics search warrants.

So, when the affidavit supporting a No Knock entry into 7815 Harding Street reported the individual inside the residence had a 9mm, that probably didn't seem to be too big of a stretch of the imagination to the magistrate signing the warrant.  As far as warrants go, there was nothing facially out of the ordinary about the one in this case.

But when the shootout was over and the smoke had cleared on January 28th, the reliability of the information in the search warrant came into question because there were two key things missing from the evidence recovered:  a 9mm handgun or any trace of heroin.

My initial reaction to this lack of evidence to support the CI's claims in the affidavit was that it must have been a lying CI.  CIs, as a general rule, aren't the most reputable of people.  In many cases, a CI has been charged with his or her own charges and are "working a contract" with narcotics officers.  "Working a contract" means that they have a signed agreement with the D.A.'s Office and narcotics officers that they will provide information resulting in the arrests of other drug dealers.  Those contracts are generally quantity based -- meaning that the CI will provide information that leads to the recovery of a set amount of drugs (like a kilo of cocaine, for instance).

Because of that, CIs have a tremendous amount of motivation to exaggerate what they say to their narcotics officer "handlers."  By necessity, CIs interact with suspects outside of direct supervision from their handlers.  They typically don't wear bodycams or "wires" that could be discovered when they make purchases.  They often go inside premises to make the purchases and their handlers lose a direct line of sight on them.  To bolster the CI's credibility, officers search them for drugs before sending them inside to make a purchase.  This assures that the CI isn't planting his or her own evidence.  The officers also provide them with marked money to make the purchase, in the hopes that once an arrest is made, the target suspect will have that marked money in his or her possession.

Other than those two minor safeguards, however, there is no real accountability in how an undercover drug purchase is described by a CI to an officer.  There is no verification of whether or not a suspect is really seen with a gun.  There is no verification of whether or not the CI really saw more drugs inside the premises.  All an officer can attest to in an affidavit for an application for a search warrant is to attest that the CI has provided good and reliable information in the past.

So, when there was no heroin and no 9mm recovered on Harding Street, I figured that HPD narcotics had been taken for a ride by a dishonest snitch.  In this post, I predicted that an investigation into the botched raid would lead to some embarrassment for HPD, but probably nothing criminal.

Today's revelations may have me eating my words about that.

Houston Police Chief Art Acevedo today announced that the "confidential informant" utilized by HPD Narcotics in this particular raid didn't actually exist.

According to the Houston Chronicle, Officer Gerald Goines (who was severely wounded in the raid) provided investigators with the name of the CI who had provided him with the information that he used to get a search warrant.  In the subsequent investigation, that CI denied having ever gone to the Harding Street location or buying drugs there.  Additional interviews with other CIs utilized by Goines found that they had no knowledge of drug activity on the property, either.

More disturbing, according to the Chronicle article is that another one of the narcotics officers, Steven Bryant, had admitted to investigative officers that the heroin allegedly provided to him and Goines by the (apparently fictional) CI was actually heroin that he had gotten from Goines' vehicle.

So, to summarize, a married couple (and their dog) were shot to death by Houston Police Officers who entered into their house with a search warrant that was obtained on the word of a non-existent snitch and planted heroin that came directly from the officer who wrote the warrant.

This is absolutely stunning to me.  In my twenty years of being involved in the Harris County Criminal Justice world, I've seen some dumb mistakes, but this level of corruption is like something out of a movie.

It looks like Joe Gamaldi was a little premature in using this incident to give his "putting dirtbags on notice" speech.

The outlook for Goines and Bryant is pretty grim.  If it is proven that they intentionally lied in an affidavit for a search warrant, that would be a felony.  If a felony leads to a death, there's an argument to be made that they committed a couple of felony murders.

The bigger concern for all agencies who participate in undercover drug buys is that this incident calls into question all undercover buys leading to search warrants.  If a Confidential Informant's reliability was cause for concern, the possibility of rogue officers fabricating CIs and planting evidence is devastating.  The bottom line is that all search warrants are signed off on based on an officer's credibility as he or she relates the facts to a magistrate.  There is nothing more required to verify the veracity of the information contained in the supporting affidavits.

It is a fairly common practice in drug cases for defense attorneys to file a Motion to Reveal the Confidential Informant.  Those confidential informants are usually protected from being identified unless otherwise ordered by a judge.  In my experience, those motions are rarely granted.  My suspicion is that in the aftermath of the Harding Street raid, more and more of these Motions are going to be filed, and Judges are going to feel additional pressure to Order those CIs to be revealed.  If that becomes the norm, you are going to find less and less people willing to work as CIs -- regardless of the legal benefit to them.

The aftermath of the raid on Harding Street is going to have a far-reaching effect that goes way beyond what ultimately happens to Goines and Bryant.  There will be calls for more verification
of information before the signing of warrants, but finding a way to have that verification and not compromise an investigation will be no easy task.

Today's announcement from Chief Acevedo is just the beginning of the fallout that will come from the events of January 28th.  Police officers, prosecutors, defense attorneys, and judges can expect a lot of changes to the way these things are done in the future.

Unfortunately, those changes will be coming too late for Dennis Tuttle, Rhogena Nicholas, and the officers injured in the raid on Harding Street.

Wednesday, February 13, 2019

Awkward Family Photos: Law School Edition

Since I'm a firm believer in the premise that you shouldn't make fun of others unless you are willing to make fun of yourself, I will share the following awkward memento.

This is an awkward screen grab from an even more awkward video from my 1998 Criminal Trial Advocacy class at UH.  In this exercise, I'm trying (and failing) to learn how to admit a photograph into evidence.

My sponsoring witness is David Cunningham.

The pained looking judge on the bench is George Murphy.

I think I would rather pass a kidney stone than watch how bad I was back then, but I have to give major kudos to Dave, George and (not pictured) Judge Belinda Hill.  This was really a wonderful class that gave some very real and very practical advice to aspiring trial lawyers. 

It's been 21 years since this picture was taken and I'm honored to be able to say I've gone on to practice alongside (and in Judge Hill's case, in front of) these great lawyers. I'm also glad that I apparently got over the nervous habit of slapping my hands to my sides while talking as if I were some sort of spastic penguin.

I just wish someone had told me and Dave to go ahead and shave our heads back then.

Monday, February 11, 2019

The 2020 Race for District Attorney Heats Up, Already

Houston Chronicle reporter Zach Despart sent out a Tweet this evening that has Harris County prosecutors abuzz:

Despart noted that attorney Audia Jones has filed a Notice of Treasurer in the 2020 race for District Attorney.  Jones, who recently left the Harris County District Attorney's Office, has been very vocal on her Facebook page about her vision for the Criminal Justice System.  Her posts have also been critical of the D.A.'s Office's current administration.

Jones is married to 180th District Court Judge DaSean Jones, who just took office on January 1st of this year.  In the event that Jones were to win the race for District Attorney, there would probably be some question as to whether or not her husband could preside over cases prosecuted by the District Attorney's Office.  In all honesty, I'm not sure what the answer to that question would be.

While Audia Jones is the first one to definitely throw her hat in the ring to run for District Attorney (I'm not sure that Kim Ogg has even formally announced that she is running again), there have been rumors that former prosecutor Rachel Palmer Hooper is mulling over a run as the Republican candidate.  That's largely based on this Tweet from last month:

Rachel is sounding like somebody who is getting ready to make a run.  She's been in the Civil World for some time now, but who knows?  Maybe she misses the excitement of the Criminal Justice System.

Quite frankly, I think that any candidate running for Harris County D.A. as a Republican in 2020 is just throwing his or her money in the toilet.  After the bashing that Republicans took in 2018, that's going to be a fool's errand if Trump is still at the top of the ballot in 2020.  Although straight-ticket voting is (fortunately) now a thing of the past in Texas, I don't know if the change will be enough to make up those margins.  I expect that the "protest turnout" of voters who show up just to vote against Trump will remain extremely high and that doesn't bode well for any candidate running as an R in 2020.

On the plus side, I think that most smart candidates know this.  I'm expecting a pretty quiet Republican Primary.  Hopefully, it will be so quiet that no one will feel all that compelled to "buy ads" from sleazy Slate producers like Terry Lowry and Steven Hotze. 

I think that if anyone has a chance to win as a Republican candidate for District Attorney in 2020, it would need to be someone that would appeal to Latino and Latina voters.  The Republican Party has been rather alienating to those voters in the Trump Era and if the Republicans were smart, they would start trying to build some bridges to that community instead of burning them.  A charismatic, qualified, and experienced Latina candidate would be ideal in that situation, and if I were leading the Harris County Republican Party, I would be working overtime to recruit someone that matched that description.

But where could they ever find a candidate like that?

Stay tuned, folks.  2020 is already getting interesting.

Judge Cassandra Hollemon

The Harris County Criminal Justice World was shocked and saddened today by the unexpected and untimely passing of recently-elected Judge Cassandra Hollemon.  Judge Hollemon held the bench of County Court at Law # 12 after winning election this past November. 

I wish that I could offer some personal insight into Judge Hollemon's passing, but sadly, she passed away before I ever had the opportunity to appear before her.

In the 20 years since I've been practicing law, I've never known of a Harris County Judge who passed while in Office.  I believe that the last Harris County Judge to die in office was 230th District Court Judge Joe Kegans in 1997.  It is a significant and sad event.

Although I didn't know Judge Hollemon, I am sorry that we did not get a chance to know her and see what she would have accomplished on the bench.  My sincerest condolences go out to her family and friends.

Sunday, February 10, 2019

Progressive Prosecutors Need Help Too

Harris County District Attorney Kim Ogg found herself in an unusual position last week when her request for funding 100 new prosecutors was met with harsh criticism from the Texas Criminal Justice Coalition, a progressive group that normally is one of her biggest supporters.  As noted in the Houston Chronicle, Ogg's request for additional prosecutors seems to have been interpreted as some sort of act of war by TCJC's Jay Jenkins.
"Simply adding prosecutors is the strategy that got us here in the first place, with this mentality that the only thing we can spend money on is the police and prosecutors," said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.
Apparently, Jenkins is so concerned that if Kim Ogg were to get a whole bunch of new prosecutors, the D.A.'s Office would just go out and start prosecuting things unnecessarily so that those new prosecutors won't get too bored.  That's a silly notion if you've paid attention to anything that Kim Ogg has done since taking office at the beginning of 2017, and it clearly illustrates that Jenkins hasn't spent much time in the trenches of Harris County criminal justice.

Ogg countered Jenkins' criticism with an editorial in this morning's ChronicleIn typical Ogg fashion, she demonstrated her flair for the dramatic:
It's the kind of fear that awakens prosecutors in the middle of the night.
What if I help convict the wrong person?  What if I fail to bring a serial murderer to justice and he kills again?  What is the best outcome for a family plagued by domestic violence?  How do we prevent a drunk driver from leaving jail, getting in his car again and killing an entire family?
Prosecutors wrestle with these worries every day. 
Um, calm down, Kim.  Most prosecutors at your office waking up in the middle of the night are mostly worried about what Joanne Musick is retroactively doing with their evaluations.

That being said, Kim is right on this issue.  The District Attorney's Office does need more prosecutors, and contrary to Jay Jenkins' opinion, that doesn't compromise the Ogg Administration's progressive views towards the Criminal Justice System.  Harris County Assistant District Attorneys are overworked and underpaid.  Seriously.  To the point where it is kind of absurd.

Even with Possession of Marijuana cases and trace cases not being filed, there is no shortage of crime in Harris County, Texas.  Overall filings may be way down, but prosecutors still find themselves handling hundreds of cases.  Sure, those cases vary in degrees of seriousness, but each and every one of them still have things that must be done on them.

If Jenkins spent a little more time in the trenches, perhaps he would become more familiar with the extremely common occurrence of a case being reset because an overworked prosecutor didn't get a "To Do" done.  Those resets are (on average) about a month, and in many instances, that's a month of sitting in jail.

That can be an extra month in jail because:

1.  A prosecutor didn't get a final restitution figure on a theft case.

2.  A prosecutor didn't get in touch with the victim of an assault who wanted to drop charges or was okay with probation.

3.  A prosecutor didn't get a copy of the search warrant or the offense report.

4.  A prosecutor didn't have time to look at a search issue.

5.  A prosecutor didn't have time to talk to an alibi witness offered by the defense.

6.  A prosecutor didn't have time to review a DWI video.

The reason these types of To Do's don't get done is NOT because prosecutors are lazy.  Most prosecutors (especially Twos and Threes) are working ten or twelve hour days and on weekends.  The reality is that they are overwhelmed with cases. 

If a prosecutor is in a court that goes to trial frequently, that makes matters even worse.  You know how whenever you go on vacation, all the things that you are supposed to be working on have a tendency to pile up on your desk?  Well, that same phenomenon occurs every time a prosecutor is in trial.

In many instances, a prosecutor won't take a hard look at a case unless it is actually set for trial.  If you're sitting in jail because you can't make bond, that's going to be a really long wait. 

I think that the 2011 William & Mary law review article (written by HCDA Alum Laura Killinger and her husband, Adam Gershowitz) cited in the Chronicle article frames the overall issue best.  They noted both pros and cons to the idea of adding more prosecutors.
. . . adding prosecutors could "result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors."
. . . a better-resourced district attorney's office can allow prosecutors to identify and dismiss weak cases more quickly. 
The interesting thing to note about Laura and Adam's article is that it was written in 2011, which was before the "progressive" movement that is currently sweeping major metropolitan areas in the country.  A more hard-core, conservative elected District Attorney might use more prosecutors to file more cases, but that's not Kim Ogg. 

And, quite frankly, I don't think that expansive prosecution of low-level cases is the future of prosecution.  At least, not in the big cities.

Ogg's appeal for more prosecutors is a well-intentioned and necessary request that will help the progressive agenda, not hurt it.  Jenkins should have a little more faith in Ogg.  They both have the same hopes for the future of Criminal Justice. 

If he spent a little more time in the trenches, he might realize that.

CJC Closure for Tuesday, July 9th

 I'm dusting off the cobwebs from the old blog to do a public service announcement that all courts will be closed tomorrow, Tuesday, Jul...