Mimesis Law
25 May 2020

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.

*Initial reports indicated 142 cases had already been dismissed; however, more current reports indicate the DA has revised the initial list of 142 cases and narrowed it down to just 100 cases.

**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.

17 Comments on this post.

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  • Scott Jacobs
    22 September 2016 at 9:42 am - Reply

    So, when are we all meeting up to drag these SOBs screaming from their offices for a good ol’ fashioned tar and feathering?

  • Noxx
    22 September 2016 at 10:56 am - Reply

    Proofread. Basic errors make an article appear less credible.

    • dm
      22 September 2016 at 11:13 am - Reply

      Yeah! Facts are no longer credible when there is a misspelling.

  • Jim
    22 September 2016 at 11:33 am - Reply

    Devon Anderson.

  • losingtrader
    22 September 2016 at 3:01 pm - Reply

    While they are at it , maybe they can investigate how the constables served me with a lawsuit with a time stamp after the date on which the lawsuit papers were thrown over my fence by the constable. (I guess this is deemed valid service by some JP’s)
    Likely rolling the time stamp forward, stamping the documents, then “serving” them …ooops…too early, was considered “just a clerical error” to one JP no longer in office .

    I won’t name him, but his initials are Paul Till.

  • Windypundit
    22 September 2016 at 6:07 pm - Reply

    I’m sympathetic, but I’ve got to ask,

    “Clearly the fact that evidence upon which a conviction is sought has been destroyed and is no longer available for prosecution is exculpatory.”

    I don’t understand how the absence of evidence of guilt is itself exculpatory evidence that must be revealed. There’s nothing to reveal because there is no evidence any more. And if a defendant wants to plead guilty to a crime, isn’t that pretty much all the evidence of guilt that’s needed? Also, since when is it the prosecutor’s job to worry about why a defendant chooses to plead guilty to a crime?

    • Scott Jacobs
      22 September 2016 at 7:10 pm - Reply

      Yes, but the plea is in lieu of a trial – if they didn’t enter a plea, they would get zero time because the evidence needed to convict is gone.

      If the accused (or their counsel) were aware that the evidence was gone, there would be no plea, because there could be no trial.

      Now, any pleas entered before the e-mail alerting the DA as to the “minor issue” probably are SOL, since the prosecution can’t reasonably turn over exculpatory information before they have it themselves. But once they had the info, refusing to disclose it could only be because they wanted to squeeze some convictions out of the Stone of Fail.

      • Windypundit
        22 September 2016 at 8:08 pm - Reply

        Thanks for the reply, but I’m still not getting it. I understand that losing the evidence takes away the prosecutor’s ability to apply pressure for a plea bargain, and it’s a sleazy move not to say something, but…am I wrong, or isn’t the legal fiction here that the defendant is pleading guilty because he actually did the crime? And now he’s going to jail for it. Justice has prevailed.

        Or does the prosecutor have a duty to keep the defense or the court informed about the state of the evidence? What if a key witness had died? Would the prosecutor have a duty to inform that defense then? Is it difference because the state destroyed the evidence?

        Arg. This is fascinating, but I can’t get my head around it.

        • shg
          22 September 2016 at 9:05 pm - Reply

          If the prosecutor knows that he lacks the evidence required to prove guilt beyond a reasonable doubt, that’s Brady and must be disclosed. If the evidence is lost, he can’t prove guilt. He must disclose. Same if a witness died. Same if his witness claims to be a space alien. Anything. Any reason he is incapable of sustaining his burden requires disclosure. It’s kinda simple.

  • bacchys
    22 September 2016 at 6:55 pm - Reply

    If judges weren’t as corrupt and criminal as prosecutors the prosecutors in these cases would be sitting in jail until the resolution of all affected cases.

    • Scott Jacobs
      22 September 2016 at 7:06 pm - Reply

      It isn’t that the judges are corrupt, it’s just that they usually are former prosecutors themselves.

  • Joe
    23 September 2016 at 12:11 pm - Reply

    Consider this situation: a man has a criminal record, but has reformed his life. He is then wrongfully charged with a crime he didn’t commit, but it’s his word vs. the word of the police officer who claimed to find drugs in his car. Because of his record, if the jury believes the cop, he’s looking at 25 years. He is offered a deal to plead guilty and will only be sentenced to 6 years and get out in three. What’s he going to do? It’s easy to say that you would fight, but what jury would believe the felon over the cop? Innocent people plead guilty all of the time for that very reason.

    • shg
      23 September 2016 at 12:46 pm - Reply

      Please try to limit your comment to the point of the post rather than obvious generic issues that have been discussed innumerable times.

  • toolazytoothinkofaname
    23 September 2016 at 9:26 pm - Reply

    The fact that the evidence no longer exists means that the defense no longer has the ability to have another expert look at the evidence and then testify that the governments expert is full of it.
    Drenched in the victims blood? No that’s actually red paint. etc

  • toolazytoothinkofaname
    23 September 2016 at 9:27 pm - Reply

    This was meant to be a reply to Windypundit.

    • shg
      24 September 2016 at 5:48 am - Reply

      If you’re too lazy to think of a name and too lazy to use the reply button, then don’t bother commenting. But don’t shit up the comments here because you’re too lazy.

      • Gabriel
        27 September 2016 at 1:32 pm - Reply

        The reply button seems to silently fail to thread when used on the mobile site (in Chrome on Android at least) – it just posts a top level comment.