Convictions Require Evidence, But Harris County Doesn’t Have Any
September 22, 2016 (Fault Lines) — One of the most basic tenants of criminal law is that convictions require evidence. Yet, the Harris County Precinct Four Constable’s Office failed to understand just how important evidence was. Thousands of cases are now in jeopardy. One hundred cases* have already been dismissed. This is the tip of the iceberg as Harris County seeks to sort out the carnage of more than 21,000 pieces of evidence that have been destroyed since 2007.
Precinct 4 Constable Mark Herman discovered what he termed as an accidental destruction of evidence back in January of this year. His revelation led to the firing of Deputy Christopher Hess, who had worked in the property room. Herman admitted he tasked Hess and others with cleaning out an overcrowded property storage room.
Herman said the property room was so overfilled with years’ worth of evidence that “you could barely close the door” — so he tasked several deputies with taking inventory and finding out what could be legally thrown out. “We had four or five people back there doing the right thing—and then we had this one person who evidently did his own thing.”
Doing his own thing, Herman has said Hess was simply a rouge employee who didn’t bother to follow the rules. Destruction of evidence generally requires oversight and a court order. Additionally, only evidence that is no longer of evidentiary value can be destroyed. Apparently, this was not a concern though as the evidence room was to be cleaned out. In his last trip to the incinerator, Hess destroyed more than 7,700 pieces of evidence without following protocols.
After firing Hess, Constable Herman notified the Harris County District Attorney’s Office that evidence had been improperly destroyed. Despite the Harris County District Attorney’s investigation beginning in February of this year, cases continued to chug their way through the already overcrowded system. It was not until mid-August when ABC13 News broke the story that anyone really seemed to care. Now, it seems to overwhelm Houston’s local news. Yet, one aspect of this debacle has been largely overlooked.
The District Attorney didn’t tell anyone there was no evidence. The District Attorney allowed prosecutions to continue knowing there was no evidence to support a conviction. The District Attorney allowed defendants to enter plea bargains on facts that could not support convictions. The District Attorney failed to follow her oath and the law.
A prosecutor’s duty is to seek justice, not secure convictions. Exhibiting the importance of this principle, the Texas Code of Criminal Procedure, Art. 2.01, defines the duty of its prosecutors:
It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.
Is justice done when prosecutions continue despite missing evidence? Sure, maybe one piece of evidence is missing, yet there could remain additional pieces upon which to forge ahead. But what about drug cases where the evidence is the drug itself, yet the drug itself has been destroyed and is no longer available for testing, inspection, or admission into evidence?
Lest we head down a path that the District Attorney has simply sidestepped a little general duty, let’s look a little deeper. We have known for years, more than 50 to be more precise, that prosecutors must disclose information and evidence which (1) tends to negate guilt, (2) mitigate punishment, or (3) impeach state witnesses. Brady v. Maryland was decided in 1963! In the past 53 years, the Supreme Court has continued to modify and clarify the prosecutor’s duty.
Most of these cases have involved continued prosecutorial abuse where prosecutors across the country have continued to justify not providing particular evidence or information to the defense. In this case, the missing evidence tends to negate guilt and cast doubt upon state witnesses, especially those from Precinct 4. Without the evidence, there simply is no means of proving guilt; that negates guilt, plain and simple.
In response to Brady violations and other discovery disputes, Texas passed the Michael Morton Act** in its 2013 legislative session that took effect January 1, 2014. Since then, prosecutors have yet again been reminded of their duty to disclose information to the defense:
Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. Tex. Code of Crim. Proc. Art. 39.14(h)
Additionally, the Texas Board of Disciplinary Appeals has weighed in and found that prosecutors owe a heightened duty to make timely disclosures to the defense of evidence that tends to negate guilt or mitigate punishment. Hiding this evidence or failing to disclose it can lead to professional sanctions against prosecutors. The Board found that the Texas Disciplinary Rules of Professional Conduct impose yet an even greater duty upon prosecutors than Brady imposes. They reasoned that Brady seeks to protect the integrity of the process and the trial while the disciplinary and ethics rules serve an entirely different purpose: to protect the public.
Specifically, the Disciplinary Rules provide:
A prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. Rule 3.09(d).
Lawyers shall not unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act. Rule 3.04(a).
All-in-all, the prosecutor has a duty to seek justice. Whether that duty comes statutorily, ethically, or both, the prosecutor must inform the defendant or his lawyer of exculpatory and mitigating evidence as soon as practical. Clearly that fact that evidence upon which a conviction is sought has been destroyed and is no longer available for prosecution is exculpatory. Yet, no notices were given. At least not until after their hand was forced, some six months later, by breaking news stories of widespread evidence destruction.
Even though the prosecutor has now dismissed about 100 cases, what about those who entered plea-bargains without knowing? The prosecutor knew but didn’t see fit to reveal the information. Now, hundreds and maybe thousands of cases will have to be reviewed and evaluated.*** That’s a truly monumental task that could have been avoided with a little transparency and certainly some notice.
**Michael Morton was wrongfully convicted and served 25 years after prosecutors withheld exculpatory Brady evidence – a bloody bandana found at the crime scene which ultimately contained the DNA of the real killer and cleared Morton.
***The DA has already identified more than 400 cases in which defendants have already been convicted where evidence had been destroyed.