Mark Herman's Shameless Publicity Stunt

It always seems like an insincere platitude whenever a defense attorney leads off with talking about his or her respect for cops, but bear with me for a moment.  

I grew up idolizing the police and wanted to be an FBI agent from about the age of ten.  There wasn't a true crime book or police procedural drama that I didn't watch wanting to be just like those guys.  My biggest professional mentor in my life was HPD and the reverence I have for that department has extended well past my tenure as a prosecutor.  I admire the work they do.  I admire their selflessness.  I admire their bravery.

But nobody's perfect.

And if I were to have to pick the biggest flaw that I see as a character trait in many of the police officers that I have known and admired over the years, it is that police have a real big stumbling block when it comes to ever admitting that they've done something wrong.

And that's a big problem when the decisions that your profession makes can literally destroy the life of general citizens.

Any lawyer who has a spent time in the criminal justice system -- whether prosecutor, defense, or both -- could definitely tell you some epic stories where a police officer got a little too aggressive in his or her pursuit of "justice" to the degree that it defied the law or Code of Criminal Procedure.  My personal favorite is a story told to me by my buddy Ed McClees, about a police officer with the H.I.S.D. police department who called the Harris County District Attorney's Office Intake Division looking for charges.

The very aggressive officer told Ed that a kid in a school classroom had turned off the lights in the classroom, and the whole class started acting up.  What charges did he want Ed to file on this young student?  He wanted Inciting a Riot.  True story.  Ed less-than-politely declined.

In a less humorous incident, Luci Davidson was once appointed to represent a man charged with possession of a controlled substance.  The probable cause that the arresting officer listed for why he had detained and subsequently searched the defendant was that the defendant had been "walking in the roadway where a sidewalk was provided" (and yes, that is a real Class C offense and one that police officers use extremely frequently to stop and search people in, ahem, "less affluent" neighborhoods).  Luci's client told her that he was walking in the street, and yes, there was a sidewalk provided.  However, a resident had parallel parked his 18-wheeler in front of his house, thus making the sidewalk unpassable.  A Google Maps satellite photo showed the 18-wheeler in the area in question and the case was dismissed due to no probable cause.

A week or so later, the same defendant reached out to Luci through his lawyer.  He had been arrested again by the same officer in the exact same spot and allegedly carrying the exact same amount of crack -- down to 1/100th of a gram.  Luci reached out to the new prosecutor and the case was dismissed for no probable cause again.  And last I heard, the police officer in question had drawn himself an internal officers investigation.

The point being that cops aren't perfect and that the Criminal Justice System has measures in place to make sure an injustice doesn't happen when a cop is wrong -- or even dirty.  But, as I mentioned before, cops don't like being told they are wrong.  They don't like it at all.  Especially not when they are being told that they are wrong by someone they consider to be some damn liberal judge who clearly must hate the police if they dare to disagree with them.

Which brings us to Harris County Precinct Four Constable Mark "Hey! Look at Me!" Herman, who held a theatrical press conference yesterday to announce that these damn liberal judges had just disagreed with him too many times by finding no probable cause on his deputies' cases, and dammit, he was just going to refile them all.

Oh boy.  Where to begin?

I guess let's start with what Probable Cause is.  If you aren't a lawyer, you should know that the legal system has different "standards of proof" that must be shown for something to happen in the legal system.  You've probably heard all of those different levels of standards of proof before.  We all know that before a person can be convicted of a crime that it must be proven "beyond a reasonable doubt" and that's literally the highest standard of proof listed in the legal system.  A slightly lesser standard of proof is labeled as "Clear and Convincing Evidence," which is the standard the Family Courts must find before they strip a child away from his parents for an allegation of harm to the child's well-being.  Below that is a "Preponderance of Evidence" which essentially translates to "more likely than not" or "just a hair above 50% convinced" and that's the standard of proof used in civil lawsuits -- from a small claims court fender bender to a multi-million dollar lawsuit.

Somewhere below (far below) is Probable Cause.  Probable Cause is what is required by the 4th Amendment to the United States Constitution to protect against unreasonable searches and seizures.  It isn't a very high standard of evidence that police really have to meet before arresting and/or searching a person.  In essence, it just means that the police officer has to be able to state a legal reason that he believes that a person has committed a crime.  

It doesn't take much.

When a judge finds that a police officer's arrest was done without Probable Cause, they are basically telling them that their case never even got off the launchpad, and that's usually with good reason.  I've had plenty of cases end when a judge found no probable cause on a case.  Here are some examples:

1.  I've had several cases where the police arrested clients for Unlawful Carrying a Firearm despite the client having a Concealed Carry License.  The officers in question thought that their understanding of the law negated the power of CHL.  They were wrong.

2.  Plenty of other cases were filed where everyone in a car was charged with possessing the same physical drug despite there being no links to the person charged.  Cops will routinely file cases where the "drugs were found in the center console where everyone could have potentially reached them."  We call that "no affirmative links" in the criminal law business.

3.  They stopped the person for no legal reason.  See the example from Luci Davidson above.  I can also recall a time when I was a very young prosecutor when a cop called intake when he had stopped and searched a black man walking through River Oaks.  When I asked him why he had stopped him, his response (no shit) was "Well, it was River Oaks.  You know . . . "  I did not know.  Charges rejected for No Probable Cause and the issue was reported to my supervisor.

4.  The search had no Probable Cause.  I once had a cop who had responded to a party at a house where there was reported underage drinking.  They went inside the apartment, which was dicey but probably legal.  They then started searching all the purses that party-goers had left in a bedroom which was when they found weed in a purse later identified to be my client's.  No probable cause on the search meant the drugs were excluded which meant that my client was "no PCed" (it's a verb for some of us) and sent home.

Unfortunately, there are plenty of folks out there who have no interest in getting bogged down in the technicalities of Constitutional Law or the Penal Code or the Code of Criminal Procedure, and dammit, if a police officer said this person needs to be arrested, then they better stay arrested!  They say "if you broke the law, there is no excuse" without realizing the irony of their statement, since making an arrest without Probable Cause is, um, well, breaking the law.  

These are the folks that Mark Herman's silly little press conference was designed to fire up, and boy did it work.  The Lock 'Em Up crowd was all over it on Twitter, including this Mark Herman Superfan.

This non-lawyer thinks that judges are dismissing cases "lazily."  When "clearly the DA had already acc charges."  

Oh dear Lord.

So, next, we move to the D.A. Intake.  It's been a minute since I wrote about what D.A. Intake is like.  It's been a lot of minutes actually since I wrote this post back when I was still a prosecutor!  I'm sure the intake system has changed somewhat over the past (good God, has it really been 14?) years.  But suffice it to say, that intake is a triage system where prosecutors get a very brief, one-sided view of a case from an officer.  There is no defense attorney providing a counter-point.  There is no judge listening in.  There is no scrutiny.  And there is no obligation for the police officer to provide ALL of the details.  If you are a random citizen that thinks that crap charges don't come out of intake every hour on the hour, you are seriously deluding yourself.

This leads me to my next topic, which I will loosely title "How to Talk to Your Law Enforcement Fans about Precinct Four."

It is an unspoken truth in the Harris County Criminal Justice System (on both the prosecutorial and defense side) that some law enforcement agencies are just, well, better than others when it comes to doing their jobs.  If your client got charged with a crime by the Houston Police Department or the Harris County Sheriff's Office, odds are that the officers involved knew what they were doing and probably did it pretty well (usually, not always).  Some of the bigger municipalities in Harris County are generally pretty competent too.  Pasadena, Baytown, Deer Park, etc.  There's a sliding scale amongst departments and there have been more than a few attempts to get a Top 30 list on paper.

Unfortunately, in the lower tier of this is the Precinct Four Constables' Office.  When I was a prosecutor, there was a running joke that the worst thing you could hear on a phone call at Intake was "This is Deputy So-and-So from Precinct Four, and I've got a clusterfuck for you . . . "  Now, obviously, this doesn't mean that all Pct. 4 deputies are bad.  I have a very dear friend of mine who has worked there for a long time and she is very smart and I wouldn't want to hurt her feelings for the world.  But that Department has had more than its fair share of problems over the years, and I'd be lying if I said that I didn't get excited whenever I have a new case investigated by Precinct Four.  The odds are just so good that there is going to be a colossal screw-up in there somewhere.

Part of the reason is that the position of Constable is an elected position and Precinct Four covers an extremely conservative area in Harris County.  It is a natural flow of events that they are going to elect the most law-and-order-tough-talking dude they can to be Constable, regardless of how little he actually knows about the law and procedure.  In that, Mark Herman is the perfect match for the territory.  Intellectual honesty in policing has never really been his strong suit and his message of "guilty is guilty, damn the Constitution" is music to many a voter's ears out there.  

Let's go back to Twitter for a second.

Here, a defense attorney is defending 339th District Court Judge Te'iva Bell who is very highly regarded for the job she has been doing since taking the bench two years ago.  She holds cops and prosecutors to the standards that they are supposed to be held under the Constitution, Penal Code and Code of Criminal Procedure.  She also has no problem dropping the hammer on defendants who have been proven guilty beyond a reasonable doubt.  She is no pushover by any stretch of the imagination.  But in the mind of the Mark Herman Superfan, she found no probable cause on too many of Pct. 4 cases and that makes her "trash."

If you want to clearly illustrate that you have no understanding of the Criminal Justice System, call a respected judge "trash" because she didn't do exactly what the nice policeman wanted her to do.  Even when that nice policeman is just a right-wing politician who doesn't understand or doesn't want to follow the actual law.

More from the SuperFan:

"Cupcake"?  I think she's flirting with me, but I can't let myself get distracted here.  I suppose it didn't dawn on her that if it is the "same judges" (plural) finding issue with the same Constable's Office (singular), that maybe, just maybe, it might be the Constable screwing these cases up.

Another issue with Precinct Four is that as a politically elected office, the elected official (that being, Mark Herman) gets to have his own standards of who does or does not qualify to come work for him.  Yes, they have to be a licensed peace officer, but beyond that, it's open criteria.  There's a lot of cronyism there and you will also find that many some of the employees were either rejected or even terminated by other agencies.  It is also not uncommon for Constable offices to "hold the Commission" for licensed peace officers as "reserve deputies" so that those "reserve deputies" can work lucrative extra jobs doing security for more money.  

You're never going to see Precinct Four working a murder or a serious sexual assault case.  When they are the first responders on serious cases, they generally secure the scene and then call in the Sheriff's Office.  There's a reason for that.  When you are dealing with Precinct Four, you aren't exactly dealing with the Navy SEALS of law enforcement.

Which makes Mark Herman's press conference yesterday all the more flummoxing.  I wasn't there, but according to St. John Barned-Smith's article (that I linked to above despite it being authored by St. John Barned-Smith.  Just kidding, Sinjin!):

"This emboldens the criminals," Herman said.  "The court system is basically telling these criminals that you can break the law, and we'll just say 'there's no probable cause' and we'll dismiss your case."

First off, judges don't dismiss cases except in extremely rare circumstances such as a finding of a Speedy Trial violation (which almost never happens).  There's a big difference between a dismissal and a finding of No Probable Cause.  You would think that the elected Constable would know that.  Secondly, when a judge finds No Probable Cause on a case, he or she isn't telling a "criminal" that they can break the law.  

They are telling a cop that he can't break the law.

Sinjin's article also quoted controversial (and noted "weird dude") Judge Franklin Bynum, who was 100% correct in his assessment of Herman's claims:

"If constables did better work, and the DA did a better job supervising work of constables before make(ing) formal filings, we wouldn't have these kinds of problems."

Say what you want to about Judge Bynum, but he hit the nail on the head with that statement.  This ain't a judge problem.  This a constable problem.

The most concerning part of Mark Herman's publicity stunt yesterday is the bigger issue it speaks to, which is cops ignoring judicial findings to just keep doing whatever the hell they want to.  I suppose in an era where candidates no longer "accept the findings" of an election, it should be no surprise that a political "top cop" would announce that they don't accept the findings of a court.  I suppose if you are a Constable SuperFan, you are completely at ease with having blind faith in the police.  Maybe you would be surprised to know that not even prosecutors have that same blind faith.  At least not the good ones.

Herman refiling cases where a judge has already found no probable cause is the equivalent of a petulant child refusing to accept a parent's decision that they don't like.  I'm not clear on whether or not Kim Ogg's District Attorney's Office is participating in Herman's political theater, but if they are, shame on them.  Herman repeatedly filing cases on citizens even after a judge has shut down that case is Official Oppression.  Don't look to Kim Ogg to do anything about that, though.  It would cost her votes in Precinct Four, and that's what really matters, isn't it?

I do want to clarify one thing.  A case where No Probable Cause is found can be salvaged, both legally and ethically.  Cops can go back and do more work that can ultimately satisfy the judge that Probable Cause does, in fact, exist.  There's absolutely nothing wrong with that.  It just takes more hard police work and some acceptance that just because a policeman says something doesn't necessarily mean that it is true.

But that's not what Herman is having his officers do with this stunt.  He's just having them refile the same shitty charge (that was already rejected) once again.  

And that's true laziness, Cupcake.

The most concerning thing that came out of Herman's stunt yesterday was how indiscriminately he is refiling these cases where he sees a dismissal was filed (by the prosecutors, not the judges, just FYI).  In one of the cases, a person had entered into a Pre-Trial Intervention program that he had successfully completed and the case was dismissed.  

Herman's office refiled it anyway. 

To put that in simpler terms, Herman filed a charge.  The person was arrested.  The person accepted responsibility.  The person accepted a punishment that gave him the opportunity to get his case dismissed after completing ALL of those requirements.  The case was dismissed after the person did everything asked of him.  And then the elected Constable of Precinct Four charged him AGAIN with the exact same crime because he was so caught up in an asinine publicity stunt that he didn't pay attention to the history of the case.

That level of incompetency is jaw-dropping.

Arresting a citizen for the same crime twice so you can make a political statement is Official Oppression.

And I think there is plenty of Probable Cause to believe that.