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Mark Herman

About that lost evidence

Sorry about that.

Mark Herman

The Harris County District Attorney’s Office has sent notices to lawyers in 10,000 closed criminal cases that evidence, which was kept in storage, may have been lost or destroyed between 2007 and 2016.

The bulk of the emails, which were sent Wednesday to lawyers for about 7,750 defendants, caused an uproar among defense attorneys but left Precinct 4 Constable Mark Herman scratching his head.

“We’ve already been through this,” Herman said Wednesday. “This all stems from a year and half ago. It’s old news.”

[…]

“Upon learning that evidence may have been lost or destroyed while in the custody of law enforcement, it was our duty to conduct a thorough review, which included manually going through thousands of records to determine which cases may have been affected,” according to a statement released Wednesday from the District Attorney’s Office. “After the recent completion of that process, it was also our duty to notify all defendants and defense lawyers involved.”

Since each of the 10,484 cases has been resolved, defense lawyers are scrambling to figure out what evidence may have been destroyed and when. If the evidence was destroyed before the case was resolved, it could be grounds for an appeal. If the case is being appealed, the destruction of evidence could hamper those proceedings.

See here, here, and here for the background. This may be old news in a sense, but that doesn’t mean it’s been resolved. I don’t see any reason why we would have considered it closed last year, without Kim Ogg getting a chance to review everything after she got elected. If this causes problems, the reason for those problems goes back a lot farther than last year. Better to make sure everything we know about what happened comes out, and then we can be done with it.

Endorsement watch: First, reform the office

The Chron has almost as much to say about the office of Constable as it does about the candidates for Constable that they prefer.

Harris County needs to bring these law enforcement fiefdoms in line: Update precincts to equalize populations, reduce the competing bureaucracies, centralize the evidence room and put county law enforcement responsibility in the hands of the Sheriff’s Office. Harris County also needs to encourage unincorporated regions to directly fund their own law enforcement, whether through independent taxing districts or incorporation into formal cities.

It is time to return constables to their core duties. It will save taxpayer dollars, streamline government and knock out some of Harris County’s most problem-prone institutions.

Until that day, the Houston Chronicle editorial board makes the following endorsements in the contested races for Harris County constables.

Alan Rosen

Alan Rosen

Constable, Precinct 1: Alan Rosen

Since his election in 2012, Constable Alan Rosen has set the standard across the county for professionalism. While his precinct covers the western half of the Inner Loop and inside Beltway 8 from US 290 to Interstate 69, Rosen, 48, also has the countywide responsibility of serving juvenile and mental health warrants and of overseeing environmental investigations and animal cruelty cases. The Democratic incumbent has put a strong emphasis on training and community relationships. For example, when Houstonians marched downtown to protest police brutality and in support of racial equality, Rosen spoke to the crowd about the shared pain felt by communities and law enforcement officers.

Constable, Precinct 2: Christopher (Chris) Diaz

Our choice is the incumbent Christopher (Chris) Diaz, a former mayor and councilman in Jacinto City.

Constable, Precinct 3: Dan Webb

Incumbent Preinct 3 Constable Ken Jones is retiring and residents of Harris County would do well to cast their ballots for Republican Dan Webb, who currently holds a Department of Public Safety Commission as a Special Ranger and has 33 active-duty years of law enforcement service. Webb promises to fix the “good ol boy” promotion system at this precinct, which encompasses Channelview, Huffman, Crosby and Highlands and part of the Northshore communities.

Constable, Precinct 4: Jeff McGowen

If Precinct 4 Constable Mark Herman, a Republican, worked in the private sector, he would have been fired for the evidence room scandal that occurred on his watch. This race should be viewed as an opportunity to remove a politician who has failed at a job and elect a replacement.

Voters in this massive precinct, which stretches across north Harris County from US 290 to Lake Houston, luckily have a qualified candidate in Jeff McGowen. The Democratic challenger is a 23-year veteran of the Harris County Sheriff’s Office and is a strong advocate for community policing. In a meeting with the editorial board, McGowen, 46, offered proposals on improved training and greater coordination between precincts.

Constable, Precinct 6: Richard “Rick” Gonzales

Silvia Treviño isn’t asking anyone to call her madre, but students of Texas history should see reflections of Pa and Ma Ferguson – the unfortunate tag-team husband and wife Texas governors – in this race for Precinct 6 Constable.

Silvia’s husband, former Precinct 6 Constable Victor Treviño, is currently on probation for spending charity dollars at a Louisiana casino and faces newfound scrutiny for running an evidence room that had not been cleaned out or organized during his 26 years. Now Silvia is running to take her husband’s former position and defeated incumbent Precinct 6 Constable Heliodoro Martinez in the Democratic primary.

It is time to make a full break and elect someone new.

Constable, Precinct 8: Phil Sandlin

Incumbent Phil Sandlin is the right man to be constable of this southeast precinct that borders the Houston Ship Channel and includes NASA and many large chemical complexes.

I’m not going to argue with any of the Chron’s endorsement choices. There are a lot of less-than-inspiring candidates on the ballot, though thankfully my own Precinct 1 is in a much better place than it was four years ago. I think the Chron’s litany of complaints about the function and role of the Constable in Harris County deserves attention. We are going to be electing a new County Judge in 2018, and I hope we will also have a spirited race for County Commissioner Precinct 2. Both of these present an opportunity to have a discussion about the role of the Constables, among other things. If we want things to be different we can make it so, but it’s not going to happen without an active effort.

It’s not just Precinct 4

There are problems with evidence rooms in other Constable precincts as well.

Constable Mark Herman

Constable Mark Herman

With Harris County’s Precinct 4 Constable’s Office mired in scandal over the improper destruction of 21,000 pieces of evidence, serious evidence cataloging and control problems also have been uncovered in the constables’ offices in Precincts 3,6 and 7, according to interviews and audits obtained by the Houston Chronicle.

While there is no proof yet that evidence has been unlawfully destroyed in those other three offices, 2,000 items were initially reported missing in Precinct 3; guns, jewelry, electronics and cash were misplaced in Precinct 6; and Precinct 7’s evidence room has been described as “a shambles.”

In Precinct 4, where the evidence destruction scandal is still unfolding, prosecutors so far have dismissed 100 criminal cases and are still determining how many convictions could be affected by years of careless work blamed on a corporal fired for illegally disposing of drugs, guns and evidence. The episode remains the subject of a criminal probe.

Only time will tell whether chaotic evidence handling practices reported in Precincts 3,6 and 7 will result in case dismissals, appeals or further investigations.

Harris County auditors in May 2015 uncovered evidence problems – never made public – in a review of the overstuffed property room inside the Precinct  6 Constable’s Office in the East End. There, auditors reported finding 28 percent of the evidence missing along with $54,000 in cash in a review of a sample of 799 items, the audit shows. Their visit to the office came only months after the previous constable, Victor Treviño, resigned after pleading guilty to misappropriating money from a charity he ran out of his office.

Constable Heliodoro Martinez, who replaced Treviño, said in an interview Friday that he immediately contacted the Harris County district attorney after receiving those results. It took five months for a team of two Harris County sheriff’s deputies and two of his own officers to locate the missing cash and other items. Martinez said he is still trying to impose order in an evidence room that hadn’t been cleaned out or organized in 26 years.

Unlike the Precinct 4 scandal, neither defense attorneys nor front-line prosecutors have been notified to review cases. So far, county lawyers have not deemed that any notifications or criminal investigations are necessary.

“To this point, we haven’t been made aware of any pending cases that have been affected in any way, shape or form,” Martinez said.

JoAnne Musick, a defense attorney who is past president of the Harris County Criminal Lawyers Association, said she is skeptical that no cases have been adversely affected.

“Every property custodian comes in and testifies how great their system is – but in these audits that’s not what they’re finding,” she said. “They’re having to dig stuff up. … How do you know it’s not been tampered with, it’s not altered, it’s not decayed?”

See here, here, and here for the background. None of the other precincts have had anywhere near the problems that Precinct 4 have had, but it’s too early to say that no cases have been affected. There are also some questions about the way the audits were conducted and the results communicated. The current auditor for the county is retiring, so perhaps there should be a high priority on re-reviewing all eight Constable precincts and ensuring we know what issues there are. And then maybe, as suggested by some people in the story and by commenter Steven Houston in an earlier post, it’s time to take these evidence rooms away from the constables and put sole authority for them in the Sheriff’s office.

Internal report on Precinct 4 evidence destruction

The more you look, the worse it appears.

Constable Mark Herman

Constable Mark Herman

One of the first hints of anything awry in the Precinct 4 property room came in an email from evidence manager Christopher T. Hess.

Harris County District Attorney “Investigator Kerry Gillie called today about the evidence for case 13-50054,” he wrote in the Feb. 29 email to his supervisor, Lt. Christian Nicholson. “I explained that the drugs had been recently destroyed. He then asked for a court order for destruction copy. I told him there was not one to my knowledge.”

[…]

Hess, a master peace officer who began his career with the constable’s office 25 years ago, according to state records, told investigators repeatedly that the destruction was supervised by a now-retired colleague, Cpl. Mike Lacher. Hess has claimed Lacher ordered him to destroy drugs, even if they pertained to open cases, according to the Precinct 4 internal affairs complaint that the Chronicle obtained under a public records request.

The 25-page document shows investigators believed Hess broke evidence tampering laws and Harris County policies on evidence handling and truthfulness. The documents show the constable’s property room was operated with little oversight and reveal that a string of errors led to wrongful evidence destruction.

The scope and duration of the scandal raise deeper questions about operational failures inside the Precinct 4 Constable’s Office, said Samuel Walker, professor of criminal justice at the University of Nebraska at Omaha.

“You get a picture of an incredibly poorly run operation,” said Walker, who studies police accountability and department management. “If the staffing is poor, if the facilities, the room itself, is overcrowded, it creates a potential problem that could jeopardize criminal cases. That’s a big deal.”

Precinct 4 Constable Mark Herman, appointed in May after former constable Ron Hickman became sheriff, said Hess wrongfully destroyed evidence for as long as nine years and never sought court orders required to destroy guns or drugs as required under state law.

See here and here for the background. It really does boggle the mind that this could have been happening for nine years, maybe more. How is it that it hadn’t affected any cases before now? How is it no one noticed it? Why is it that Sheriff Hickman, who was the Constable in Precinct 4 for most of this, hasn’t explained himself? Lots of questions, not so many answers. The Press has more.

More on the Precinct 4 evidence destruction scandal

Lots of cases have been compromised.

Constable Mark Herman

Constable Mark Herman

District Attorney Devon Anderson’s office first learned in April that the mistaken destruction of evidence in Harris County’s Precinct 4 had likely compromised more than a thousand criminal cases, including more than 400 in which defendants had already been convicted, records released Tuesday show.

Anderson immediately launched a criminal probe, but her office did not begin informing defendants, their attorneys and even her own prosecutors about the magnitude of the problem until late August.

The records show that most of the cases were minor drug offenses, although dozens involved violent felonies in which defendants either pleaded or were found guilty and in some cases sentenced to up to 20 years in prison. Prosecutors have dismissed more than 140 cases so far.

[…]

Anderson has emphasized in past statements that evidence went first to a prosecutor who is investigating Precinct 4 in her Public Integrity Division. Her office made the records, including lists of 21,000 pieces of evidence that had been destroyed, public for the first time Tuesday in response to a public information request from the Houston Chronicle and other media outlets.

Precinct 4 Constable Mark Herman said his office immediately informed the DA’s office in March after learning that an officer had destroyed evidence in the department’s overstuffed property room. By then, he said the DA’s office had already launched a criminal investigation into the matter.

The constable’s office began supplying a longer list of cases in April.

“We were very direct, very deliberate with the DA’s office from the very beginning,” Herman said. “When this process started … we talked to them, told them we had cases compromised due to an employee destroying evidence to open cases.”

[…]

Legal experts said deciding when to disclose evidentiary problems to defendants and their attorneys is a complex matter involving numerous factors, including the status of any ongoing criminal investigation.

Geoffrey Corn, a professor at Houston College of Law, credited Anderson with already dismissing dozens of cases instead of fighting for convictions as the scandal has unfolded.

“When you have a catastrophic failure – and this was catastrophic, a DA doesn’t expect an evidence custodian who is lazy to just destroy tons of evidence – there’s got to be a lot of assessment,” he said.

Local defense attorneys criticized Anderson for what they saw as a lack of transparency and said many defendants still have not received legally required “Brady notices” informing them of the evidence destruction.

“The response from the Harris County district attorney has been nearly non-existent,” said JoAnne Musick, former president of the Harris County Criminal Lawyers Association. “Despite having known of the evidence destruction since February, it took … months and a flood of negative press before they saw fit to even begin notifying defense attorneys.”

Tyler Flood, the association’s current president, praised Anderson for complying with Texas Public Records Laws and supplying the case lists.

“I think it’s commendable that they are attempting to do the right thing by releasing this information,” he said. “However, there’s an issue with the scope. We don’t know if this is covering everything that it needs to cover and how far back it goes.”

See here for the background. I don’t really have anything to add to this, I’m just noting it for the record. The big question that continues to be unexplored in all this is how the deputy in question could have been doing this for so long without longtime Constable (now Sheriff) Ron Hickman noticing. It would be very nice to get some clarity on that. The Press has more.

The Precinct 4 evidence destruction debacle

What the heck is going on here?

Constable Mark Herman

Constable Mark Herman

The Harris County Precinct 4 deputy who was fired after destroying evidence in hundreds of pending criminal cases this year has been wrongfully tossing evidence without following department protocol since 2007, Constable Mark Herman announced Tuesday.

Herman’s announcement comes just after Houston defense attorney Paul Morgan wrote a letter to the U.S. Attorney’s Office asking the federal government to investigate Harris County Precinct 4 and the Harris County District Attorney’s Office, arguing that neither agency is capable of conducting an independent investigation and that the DA’s office is complicit in the fiasco. Morgan also asks the feds to strip Precinct 4 of law enforcement duties and restrict the precinct only to ability to serve civil process and warrants, because it has demonstrated that it “cannot handle criminal investigations and prosecutions,” Morgan wrote.

Since 2007, the fired deputy, Chris Hess, has destroyed more than 21,000 pieces of evidence, putting more than 1,000 cases in jeopardy. Already, the DA’s office has dismissed 142 pending cases, most of them drug-related, because the evidence was incinerated in January — the last time Hess destroyed evidence before he was caught and fired.

This problem only became public after Morgan and attorney Emily Detoto discovered in August that drug evidence in their own client’s case was destroyed — just as a prosecutor was offering their client, David Bellamy, a 25-year plea deal for meth possession, Morgan said. It was among the first cases to be dismissed due to the Precinct 4 missing-evidence fiasco.

But as more details have surfaced of the hundreds more affected cases, what has bothered Morgan and Detoto the most is the complete lack of action the district attorney’s office had taken on the issue, they say — even though District Attorney Devon Anderson admitted to knowing about the destroyed evidence since February. It was only directly after KTRK aired a story about Bellamy’s case on August 17 that Anderson blasted out an email to all her prosecutors, ordering them to stop offering plea deals or taking to trial any cases involving Precinct 4.

Morgan and Detoto say it was an email that should have been sent out seven months ago.

“With something this large, it’s either the height of deception or the height of incompetence — either way it’s inexcusable,” Morgan said. “But which office has more blame? It’s the district attorney’s office all day. They legally have more responsibility. It’s why we have shiny gold bar cards. This just can’t happen.”

This is nuts. I hadn’t followed this story very closely, so let’s review a few previous stories to catch up:

Precinct 4’s destruction of evidence the subject of a criminal probe

Hundreds of Precinct Four cases could be dismissed

Feds eyeing mass evidence destruction problems in Precinct 4 constable’s office

So a big mess, and we’re far from the end of it. In addition to being another headache for District Attorney Devon Anderson, it’s also now a campaign issue.

Harris County District Attorney candidate Kim Ogg is calling for a special prosecutor to investigate “possible civil rights violations” in the wake of disclosures that thousands of pieces of evidence were wrongly destroyed by the Precinct 4 constable’s office.

Ogg, a Democrat who is facing Republican incumbent District Attorney Devon Anderson in the November general election, questioned why Anderson waited more than six months to notify trial prosecutors that the evidence may be missing.

“It’s time we asked for an independent prosecutor to investigate not just the actions of Precinct 4, which are going to be reviewed by the Justice Department, but of this district attorney and her assistant district attorneys,” Ogg said Thursday during a news conference. “For every person who was convicted where evidence had already been destroyed, they’re entitled – in all likelihood – to a new trial.”

Anderson fired back, saying she has been open with the public about how she came to learn of the property room debacle in Precinct 4 and said Ogg is politicizing the issue.

“I have spoken at length with the media on this situation,” Anderson said in a written statement Thursday. “I have given them all the details and all the facts. If there are any questions on specifics I am happy to answer those, but Kim Ogg’s attempt to politicize this and make it a DA campaign issue is desperate.”

Anderson’s public integrity unit has been investigating the discrepancy since February, but the dozens of prosecutors who handle cases at the trial level were apparently not notified until Aug. 19 to stop work on Precinct 4 cases, after a defense attorney raised questions about missing evidence in his client’s case.

Ogg said failure to alert prosecutors more quickly and to disclose details about the missing evidence to defense attorneys appears to be prosecutorial misconduct.

Unfortunately for Anderson, she’s got some credibility problems to overcome if she wants to make a “politicization” claim stick. To be fair to her, however, her office isn’t the only one with some questions to answer here. Anderson has largely blamed Precinct 4 Constable Mark Herman for the problem, but Herman has only been in office since last year, and the evidence destruction apparently goes back a lot farther than that. Let’s return to that Press story we began with:

If Hess had destroyed evidence in any pending cases since 2007, then that leaves defense attorneys puzzled over how prosecutors never discovered they had no evidence against suspects they convicted or persuaded to take plea deals.

Herman took over as constable in May 2015 after former Precinct 4 constable Ron Hickman became county sheriff. In January, Herman ordered Hess and several deputies to clean out the storage room because it was overfilled with evidence. He said his office caught Hess’s misconduct shortly afterward, but he could not comment on or account for how Hess got away with destroying evidence for nine years prior. He says the constable’s office has passed various audits “with flying colors.”

Herman said Precinct 4 superiors can only trace Hess’s policy violations to 2007 because that’s when the department started using a new electronic system to track evidence destruction and the property room’s inventory. Hess had been working in the property room, though, since 2000, which is when Hickman became constable.

Herman told the Press that when he ordered a review of all of Hess’s past employee evaluations since 2000, strangely no evaluations on Hess were on file. By contrast, Herman said that every employee is supposed to be evaluated every year.

A sheriff’s office spokesman declined to comment on allegations that Hickman failed to discipline Hess for violations until it could be confirmed through records that Hess had been breaching department policies since 2007. The Press has requested the documents.

So one has to wonder how it is that now-Sheriff Ron Hickman didn’t discover this problem over the course of eight years. That’s a question that could use a bit more exploration. Like I said, I think we’ll be learning new things about this for quite some time to come.

New Precinct 4 Constable chosen

Now that Ron Hickman is Sheriff, that left a vacancy in his old job as Precinct 4 Constable. Commissioners Court has now filled that vacancy.

At a special meeting Tuesday morning Harris County Commissioners Court selected Mark Herman, assistant chief deputy in Precinct 4, to fill the spot vacated when Constable Ron Hickman was tapped last week as Harris County’s fill-in sheriff. Herman, who has worked at Precinct 4 for three decades, will serve the remainder of Hickman’s term, through 2016.

County Judge Ed Emmett administered the oath of office, as Herman’s wife held a family bible for him.

Herman thanked his family, God and the entire staff of Precinct 4, telling the court members he looked forward to working with them. He took the opportunity during his acceptance speech to introduce Captain Donald Steward who works in patrol for the precinct and whom Herman announced would serve as his chief deputy.

Hickman’s term as Constable would have been up at the end of 2016, so Herman will (presumably) be running for a full term next year. Hickman was unopposed in 2012, but Herman will not be, at least in the primary.

In an abrupt change of heart, state Rep. Allen Fletcher said Tuesday he no longer intends to run for Harris County sheriff in 2016.

Instead, he will seek the Precinct 4 constable’s job vacated by the county’s new sheriff, Ron Hickman.

[…]

“I want to run out in my home district and I want to represent the people out in northwest Harris County,” he said, explaining that he does not want to run against Hickman after commissioners selected him for the job.

Fletcher, a former Houston police officer, cited support from local lawmakers for his constable’s bid. He also voiced concerns about running as a Republican in a county-wide race in 2016.

“I don’t want to depend on Hillary Clinton being on the top of the ticket for the Democrats and trying to run county-wide when I don’t know how it’s going to play out,” he said.

A wise choice, I’d say. I went back and looked at 2012 election data, and Constable Precinct 4 was carried by Mitt Romney by a 64-36 margin. I’d take my chances in a primary for those odds in November if I were a Republican. I’m guessing Fletcher came under some pressure to leave Sheriff Hickman alone as well, though I’ll be surprised if no one else jumps into that primary. I’ve not heard any word on potential Democratic candidates for Sheriff yet. Anyone out there hearing anything? Leave a comment and let us know.