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.

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