What the heck is going on here?
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.
This is stunning – candidates Anderson and Hickman surely didn’t want this discovered. We know that Anderson has known for at least 7 months, how did Hickman not know for 7 years?
Matx, Constable Herman was the lead deputy for years too and in charge of Pct. 4 for many months before the deputy was found to be destroying evidence. I find it hard to believe that no district attorney, no court appointed lawyer, no county audit, and no supervisor stumbled across this before December. Even though 99% of cases are plea bargains or dismissals, the hundreds of deputies working in Pct. 4 make a lot of arrests so hearing the deputy was assigned to their property room for 16 years and tainted cases go back to at least 2007 makes me think Ron Hickman, Mark Herman, and a whole lot of other people need to be answering some questions before election time.
For Anderson’s part, her public claims are that Pct. 4 has repeatedly changed the data provided her office. If she knew 7 months ago that a handful of cases might have lost evidence is way different from this ongoing, wholesale boondoggle. If they initially reported specific cases were missing evidence, I don’t blame her for not notifying every defendant’s attorney but if they told her that the deputy trashed many thousands of evidence containers, a broad notification would be warranted. I’d want a lot more details before I’d blame her response because right now, all I’ve seen in the media are accusations from one defense attorney.
Steve,
By law she has to notify every defendant’s attorney. And I can promise you that not one court appointed attorney knew of this. This criminal defense bar here is a small community that talks all the time. If one person knew the word would have spread quickly.
Terrance, at what point is she specifically responsible for notifying “every defendant’s attorney” in every case coming out of Pct. 4? As above, I’m talking about cases where the evidence was NOT destroyed, lost, or otherwise in limbo. Pct. 4 is said to have initially reported a small amount of evidence in limited numbers of current cases, insider sources saying the drugs were weighed, tested by the forensic lab, and in some cases destroyed before they were supposed to be OR in an improper fashion (the wrong paperwork was filled out by the deputy). If some evidence was missing in specific cases, by all means Brady calls for that to be reported to the representatives of THOSE cases but at what point does “every defendant’s attorney” need to be notified?
And you make my point regarding the community of defense lawyers in the area. For this kind of misconduct to have gone unnoticed by any of you for all these years seems curious at best. In effect, you’re telling me that never once have one of you asked to see the actual drugs taken from a client or had them analyzed independently by a lab unrelated to the government. Am I misstating this?
Steve, thank you for your insight. A lot of questions are raised:
Did it not raise flags with Anderson when the data from Precinct 4 kept changing? Or has this only been happening once she was alerted in February?
A recent This American Life episode The Deep End of the Pool http://www.thisamericanlife.org/radio-archives/episode/595/deep-end-of-the-pool had a story about a lawyer assigned to be a public defender on a case by the judge. This lawyer was not a criminal defense attorney, but was very well known. He decided to actually fight for his client, and once he started to go about it seriously, he realized the system was broken. He actually asked for evidence and reports and when he (finally) got information was gobsmacked by the complacency and incompetency of the legal system. He was expected to just have his client plead – but his client was innocent and he actually brought the case to trial. Defense lawyers need to do their jobs – did any defense lawyers (public or private) actually ask for evidence or just convince their clients to plead?
It seems as though every actor in the legal system has been remiss in their duties.
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Matx, you’re welcome. There are a great many questions to go around and while I understand political hacks trying to pin everything on one or two of their favorite whipping posts, that doesn’t even begin to cover the depth and breadth of the problem.
In reference to the radio show you refer to it also brings up another point to consider. It wasn’t long ago that the defense lawyers of the area, gnashing their teeth about trace drug cases, were screaming for heads to roll because such cases did not provide enough remaining evidence for them to test. As a result, changes were made to dismiss such cases or lower their status considerably, regardless of what the area’s two very expensive crime labs found. The implication by such lawyers was that they 1) all were going to have future drug cases tested independently for their clients because anything else would be a violation of their oath, and 2) that they had routinely done so in the past because mean old big brother would doctor the results to convict their choirboy clients for no reason at all. As this evidence case points out, the plea mill shysters virtually NEVER have such evidence tested, nor do they themselves even question it because they know good and well that the results virtually always support the amount and type of drugs. So I can see why they would rather point the finger at the District Attorney and anyone else to dodge a bullet but the proof is in the pudding as they say.