Big Jolly Politics

politics in Harris County and Texas

HPD Failure to Investigate and Remedies

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To date, Mayor Whitmire has acted admirably regarding Houston Police Department’s failure to investigate issue.  However, the victim impact aspect of the failure to investigate is woefully inadequate so far.  Although many of the reported crimes have had their statute of limitations run some of the crimes would be repeating or ongoing creating an opportunity for addressing the reports that can still be addressed.

Although the details would need refining, a basic structure to empower victims to further pursue their complaints wouldn’t be terribly difficult or expensive to establish.  The Mayor or any three City Council members could initiate a plan similar to what is set forth below for action by City Council.

Identify the Victims

First, every complainant who did not have their report investigated is notified that their report was not investigated, and the report number and whatever paperwork exists into the complaint is sent to the victim.  This not only resolves the question of what complaints were not investigated, but lets victims know where they stand… was their complaint investigated?  This could work in reverse also; anyone who has a report number could actively query HPD and receive this information.

Investigate the Reports

All the reports need to be investigated, even if they ultimately end up with a finding of no evidence to support the claim due to the passage of time.  This is going to be a significant undertaking, but the City has options to address the intensive resources required.

Fundamentally, Houston is full of good people who would be willing to volunteer some time to help address the cases.  The cases not investigated will range across the Texas Penal Code. This variety of cases will lead to cases that lend themselves to subject matter expertise rather than general law enforcement investigation.  The City could appoint volunteer investigators with subject matter expertise to investigate the specialty cases, attorneys with criminal law background to screen for possible prima fascia evidence of penal code elements being met, etc.

Refer for Prosecution if Applicable

Although most of the cases will not be suitable for prosecution, some will be either directly or on the basis of ongoing nature.  Also, subsequent criminal activity discovered in the investigations could be referred for prosecution.  Now, this will require the District Attorney’s office to cooperate, but at least the effort to refer the cases to the DA’s office should be undertaken.  Also, to the extent that municipal violations are uncovered and prosecutable the City could utilize the municipal courts to provide some measure of justice to the victims who did not have their cases investigated.

Accountability

Lastly, the public needs to be made aware of the depth and extent of the failure to investigate and subsequent prosecutions.    A thorough investigation into the how and why aspects should occur, but after that logical, on point follow up action needs to occur.

Keep Politics Out of the Issue

This isn’t an area where political points should be had. The wrongdoers are not likely to be held accountable, and we shouldn’t seek a scapegoat for the problem.  The focus needs to be on the hard work of identifying and remedying the problem, and assisting victims.  Any political nature to the investigation or consequences detracts from that purpose.

Does the Houston Police Department Need 1,000 More Cops?

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Scott Henson’s ‘Grits for Breakfast’ suggested it may be time to reduce the number of cos in light of falling crime rates.  Here is his snippet from Thursday’s GFB:

Justifying more police in an era of declining crime

Recently, the Washington Post pointed out that, despite crime plummeting in the last three decades, the number of police has not declined, wondering aloud, as if for the first time, whether they should. So it’s in that context that Grits reads the Houston Chronicle headline, “As crime drops, police chief says HPD needs thousands more on the force.” This is preventive excuse making. If crime goes down, Chief Acevedo will surely take credit. But if it goes up, he will say it’s because he didn’t get his officers, even though the number of index-crimes-per-officer is near its 30-year nadir.

Let’s get real. The police can do little about reducing crime other than catching crooks and making sure they are kept locked up. A criminal in jail is one less criminal on the streets.

By having a heavy patrol presence in high crime areas, the police may be able to reduce burglaries and gangbanger shootings somewhat. Most other crime, especially assaults and murders not related to gangs, cannot really be prevented by the police.

‘Broken Windows’ and stop-and-frisk operations by the police in New York did reduce crime, but because those operations impacted minority communities disproportionately, they are now verboten.

So the crime rate is going to go up and down regardless of a police presence.

And Scott is right about Acevedo ….. If the crime rate goes down he’ll brag about what a wonderful job HPD is doing and if it goes up he’ll say it’s because he doesn’t have enough cops.

Having said that though, Acevedo is right about needing more cops. With a growing population and countless requests for police services, HPD does not have enough cops to answer even some reported felonies. Asking for 1,000 more cops is not unreasonable for the city of Houston.

The bottom line is that crime rates should not determine the number of cops on the force! The ability to respond to all calls in a timely manner should determine Houston’s or any other city’s police manpower needs.

If Harris County Sheriff's Department needs a helicopter, we should fund it legitimately

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Harris County Sheriff Adrian Garcia’s hiring of former Houston Chronicle reporter Alan Bernstein continues to pay dividends. This piece under the byline of Chron reporter Kiah Collier reads like a Bernstein press release, which it probably was. The link on Chron.com is broken but as luck would have it (or coordination), it is in full on AdrianGarcia.com.

More than four years after Harris County Commissioners Court scrapped a request from Sheriff Adrian Garcia to use federal stimulus dollars to lease and staff a helicopter, the county’s top lawman finally could get his wish.

Garcia will ask Commissioners Court next week for permission to accept a Bell OH-58A helicopter from a U.S. Department of Defense surplus equipment program, and use money generated from the sale of seized assets to equip it with an infrared camera, air conditioning and a video recorder, as well as pay for the first year of operation.

Garcia says the department, which has owned helicopters in the past but now has just one small airplane, needs a chopper to police the fast-growing unincorporated areas of the county, the nation’s third most populous.

“We have 1.6 million people, we have major city-type crime that’s occurring in our unincorporated areas,” Garcia said. “Having that aviation advantage adds to our ability to effectively serve the citizens.”

I agree with him. The HCSO needs a couple of helicopters. The problem I have with this one is the funding mechanism – using “drug war asset forfeiture”. Unfortunately, my commissioner, Precinct 2’s Jack Morman, is all for it.

Precinct 2 Commissioner Jack Morman, who supports the proposal, said paying for the helicopter entirely with revenue from seized assets would be “the perfect situation, where there is not any type of drain on the county’s general” fund.

Garcia said he is not sure the department will be able to pay for the helicopter with seized asset sales after the first year, and that it is something his office would evaluate during the first year of operation.

The department pulled in $2.6 million last year in asset sales. It will cost nearly half a million dollars to outfit the chopper, and about $250,000 a year to maintain it for 500 flight hours a year. Three deputies already are licensed to fly helicopters, and two more with commercial certifications are in training, a department sergeant said.

Nothing about this is “perfect” in the least. As the liberty movement continues to drive the youth movement in the Republican Party, politicians like Jack can’t see the forest for the “free dollars”. I tried to contact him but received a call from his Chief of Staff, Dave Walden, who told me that he was authorized to speak on Jack’s behalf. Walden was ready with a pithy quote:

If the sheriff wants to spend criminal’s money catching criminals, the commissioner is all for it.

Obviously, that will play well in a Republican primary. Too bad it isn’t true.

Asset forfeiture is probably the second worst unintended consequence of the “war on drugs”, the first being the incarceration of hundreds of thousands of US citizens. I won’t spend much time on it because this is a done deal, but if you really want to know about it, here are just a couple of links:

  • FSA, LLC. – a business built on supporting agencies seize assets from individuals.
  • Texas Forfeiture Law – an attorney that specializes in representing people when the government steals their property.
  • Institute for Justice – a report on asset forfeiture in Texas.
  • Google search on Drug War Asset Forfeiture Abuse

There are thousands of stories each year of the abuse of asset forfeiture laws. And that abuse is specifically because our elected politicians put pressure on our law enforcement personnel  to fund their activities using (and abusing) these laws.

Commissioners Court should force Garcia to cut his huge command and communications staff first, then completely fund a competent air support division. Air support is a proven activity that increases officer safety and criminal apprehension.

One other thing that caught my eye.

The sheriff’s department for years has used helicopters of other local law enforcement agencies, including the Houston Police Department’s Air Support Division, the Texas Department of Public Safety and the U.S. Drug Enforcement Administration.

HPD, however, has cut its air support division budget by more than two-thirds, Garcia said, reducing flying hours from 21 to three hours a day;

If that is so, then HPD is wasting those three hours a day flying Wyatt Earp grand jurists around on tours. Remember the 185th Runaway Grand Jury foreperson Trisha “Wyatt Earp” Pollard? This from her Facebook page on June 4th:

Trisha "Wyatt Earp" Pollard
Trisha “Wyatt Earp” Pollard

But she did get a nice picture of the San Jacinto Monument:

San Jacinto Monument courtesy HPD helicopter tour
San Jacinto Monument courtesy HPD helicopter tour

HPD needs to disband its air support program completely if that is the best use they have for it. Chief McClelland should give the helicopter to the Sheriff and let him staff it and operate it in his budget. With legitimate funds from Commissioner’s Court, not asset forfeitures.

Rape Victims v. The Houston Police Department-The Goal Line

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Don Hooper
Don Hooper

In October, I wrote an article for this blog about the voluminous untested rape kits held hostage by the City of Houston. On November 2, it was reported that the City of Houston settled a case with George Rodriguez, a man who spent 17 years in prison for a crime that he did not commit. Mr. Rodriguez won a lawsuit against the city and was awarded a $9 million judgment. Subsequently, the city fought the judgment and refused to pay Rodriguez. After years of fighting, the city “settled” with Rodriguez for $3 million. This case did not involve an untested rape kit. Instead, erroneous analysis by the Houston Police Department presented during the criminal trial implicated Mr. Rodriguez.

Mr. Rodriguez is not alone. Ricardo Rachelle was tried and convicted for sexual assault of a child and the victim’s sexual assault kit was never tested. Five years after the conviction, the evidence was tested and Rachelle was proven innocent.

On Wednesday, February 27, the Houston City Council will vote to appropriate the funds to send 6,600 rape kits to Virginia and Utah for analysis. While this is the beginning of a victory for Houston rape victims, it is crucial that unanswered questions regarding the quantity of evidence and quality of analysis are answered. Moreover, all individuals responsible for the horrendous decisions not to test this sensitive evidence must be identified and held accountable. And, the simple fact that the operation of the crime lab has not changed demonstrates the indifference towards justice and the rights of crime victims in our community.

So, how many bites at the apple does HPD get? After twenty years of mismanagement, city leaders have formed a local government corporation that supposedly functions as an independent crime lab. It is ironic that police personnel, including Assistant Chief Tim Oettmeier, appeared at the press conference announcing this new outsourcing program and made the presentation to the Houston City Council. Judging from appearances, it certainly looks like the police department continues to be involved in crime lab operations.

When the new, “independent” local government corporation was formed, a board was created by Annise Parker. Oddly, no forensic experts were appointed to the board. Instead, each board member has political ties to Parker or her supporters. The leader, Scott Hochberg, has absolutely no experience with scientific evidence. During his tenure in the Texas Legislature, his expertise was education. So, even with the local government corporation, nothing has truly changed at the crime lab. Good decisions are made from good information and information coming from HPD is anything but reliable. The past twenty years has proven this true.

Outsourcing evidence presents numerous logistical issues as well. As most folks who have seen Law & Order know, chain of custody is vital to the admission of evidence. Sometimes, the viability of a criminal case is dependent upon the analysis of scientific evidence. In those situations, it is vital for the lawyers to meet with potential witnesses. Unfortunately, it would be impractical for the prosecutors or the defense to travel out of state to interview these witnesses.

At trial, out of state witnesses would be required to travel to Houston to testify about the evidence analysis. Who will pay for their travel expenses? Who will pay for their testimony? Who will pay for their time? This is assuming that the two laboratories employ qualified technicians. Unfortunately, the selection of these labs was a less than transparent process; so, we, the citizens, are not afforded the opportunity to understand why these two labs were selected…especially when we have one of the world’s best crime laboratories in our backyard.

There are many longtime outstanding employees at the crime lab. Unfortunately, their great work is overshadowed by poor leadership and operational control. These crime lab employees work tirelessly to make sure that the evidence tells as much of the story as possible. For example, they review the offense report and ask questions to try to understand where recoverable evidence can be found. These dialogs are crucial to locate evidence which could be in many different locations on articles of clothing. Why and where it is located is also important to forensic analysis. Obviously, if this important work is being done by people in other states, no relationships will exist with investigators, law enforcement, or prosecutors who will have to try cases.

The Houston City Council will have an opportunity to get this right. Sending these kits out-of-state to labs to do this work maybe expedient but will it net the results the public needs? The purpose of analyzing the kits should be to free the innocent in prison, identify serial offenders, and producing quality evidence that can be used in effective investigations and successful prosecutions.  The Harris County Institute of Forensic Sciences is managed by scientists and medical doctors. This is who tests the rape kits for Harris County. Harris County has no backlog of rape kits and has never been sued for gross negligence. The policy in Harris County has always been to test every rape kit immediately when it comes into their office. Deciding which rape kits to test was never an issue at the county. The Institute should be afforded the opportunity to make a proposal on this work. HPD needs to butt out and realize that twenty years of malfeasance has made Houston a dangerous place. Let’s not forget the case of the serial rapist whose rape kits sit in the crime lab.

Harris County DA Pat Lykos sued for unlawful retaliation

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In what is probably a start of litigation surrounding the Houston Police Department’s Breath Alcohol Testing (BAT) vans and what is referred to as the 185th Runaway Grand Jury, two former HPD technicians filed a lawsuit in federal court this morning alleging that Harris County District Attorney Pat Lykos and Assistant Harris County District Attorney Rachel Palmer violated their Constitutional rights by unlawfully retaliating against them for their roles as whistle-blowers.

Chip Lewis, Amanda Culbertson, Jorge Wong, and Scott Cook press conference
Chip Lewis, Amanda Culbertson, Jorge Wong, and Scott Cook press conference

The two former HPD employees, Amanda Culbertson and Jorge Wong, held a press conference this morning at the Law Offices of Chip Lewis. Mr. Lewis has been retained as their personal lawyer – as he is a criminal defense specialist and has no experience in labor law, Scott Cook out of Austin, TX. Mr. Cook’s Linked in profile discusses his experience:

Scott’s law practice focuses on the representation of individuals in employment disputes. He represents and has represented individuals in a wide variety of cases, including litigating claims for breach of an employment contract, discrimination, unpaid overtime, FMLA violations, whistleblower retaliation, retaliation for the exercise of First Amendment rights, and sexual harassment. He regularly advises employees on their rights in the workplace.

At the press conference this morning, each plaintiff gave a brief statement and then turned it over to the lawyers for questioning. Unfortunately, I didn’t capture their statements on video but I do have audio of them (sorry about the “clicks”, one of the photographers had a very loud Canon camera!):

Amanda Culbertson Statement

Jorge Wong Statement

It was clear that this is Mr. Lewis’ show. He answered the majority of the questions, deferring to Mr. Cook for answers to a couple of technical details. Here is a video of the press conference:

The lawsuit itself contains far more information about the Houston Police Department than it does the Harris County District Attorney’s Office. There is a third technician mentioned many times, Jano Chu, that is not a party to the lawsuit, which is somewhat curious to me. Here is the lawsuit:

Culbertson Wong Lawsuit

As you can see, much of the lawsuit centers on Lone Star College, where the two former HPD technicians ended up after leaving HPD. While the lawsuit focuses on Harris County Commissioners Court selecting the Texas Department of Public Safety to take over testing for DWI’s, it fails to mention that the contract with Lone Star expired and wasn’t renewed. This may or may not be significant in the outcome of the lawsuit but leaving that portion out does change the context of the two “losing” their jobs after the contract expired.

One thing that caught my eye is on page 11, numbered paragraph 43. I’m not sure what the purpose of the paragraph is, except perhaps to make ADA Palmer “look bad”. The lawsuit contains this quote from Judge Pam Derbyshire:

“You may be unhappy with her conduct, but there is only one thing and one thing only she is hirer for, which is about the breath test given to this gentleman in Bat Van 5.”

When I first read that, my impression was that the judge was scolding ADA Palmer. However, when Judge Derbyshire’s comment is read in context, the trial transcript of State vs Donald Andrews, Case # 1682012, tells a far different story.

22           Q You realize that the DA’s office relies on

23           you for your past blood testing and full breath

24           testing, right?

25           MR. LEWIS: Objection; relevance.

START OF PAGE 11

1              THE COURT: Are we going to get to the

2              breath test in this case?

3              MS. PALMER: There is a lot of background

4              that’s important.

5              THE COURT: You may be unhappy with her

6              conduct, but there is only one thing and one

7              thing only she is here for, which is about the

8              breath test given to this gentlemen in Bat Van

9              5.

10           MS. PALMER: Respectfully, it’s more

11           important than that.

12           Let me make clear for the record, I am not

13           unhappy with this witness. It’s important that

14           the State knows the truth about what’s going on

15           in the Houston Police Department crime lab.

16           From yesterday’s direct examination and

17           cross-examination, this witness is acting as a

18           whistle-blower with regard to HPD.

19           THE COURT: Approach the bench.

20           Ms. Culbertson, could you wait in the

21           hallway.

22           (Discussion off the record)

23           THE COURT: All right. Back on the

24           record.

25           Ms. Palmer, please proceed.

START OF PAGE 12

1              MS. PALMER: Thank you.

What actually happened here is pretty important. As ADA Palmer is questioning Ms. Culbertson, her attorney, Mr. Lewis*, objects. The judge initially seems inclined to agree with him, which is the quote used in the lawsuit. However, after sending Culbertson out of the room and hearing ADA Palmer out, Judge Derbyshire agrees with ADA Palmer, and allows her to continue questioning the witness. But the key point is that ADA Palmer CLEARLY wants to get to the truth. Let me repeat what she says on the record:

Respectfully, it’s more important than that. Let me make clear for the record, I am not unhappy with this witness. It’s important that the State knows the truth about what’s going on in the Houston Police Department crime lab.

Virtually the entire universe of press surrounding the BAT Vans, DA Lykos, and ADA Palmer has accused them of trying to hide something or cover something up – in reality, as documented in the official trial transcripts. they were trying to get to the truth about them. If nothing else comes from this lawsuit, perhaps that point will make it through the noise.

Which brings me to another potentially interesting thing that might come out of this lawsuit: could we see copies of the grand jury testimony from the 185th Grand Jury? After all, paragraphs 61-67 specifically refer to that misuse of the court system. Obviously, I’m not an attorney and don’t know if that testimony is “discoverable” or not, or if the alleged leaks by grand jury members can be used, but if that happens, expect incoming DA Mike Anderson’s regime to be tainted from the start.

You know, it occurs to me that perhaps Culbertson and Wong are being used by Anderson surrogates to give him a plausible reason to fire ADA Palmer. If so, I’d bet that Harris County taxpayers are going to have to clean that up with our pocketbooks. Pass the popcorn, folks, this is going to be very interesting.

* The  attorney identified as “Mr. Lewis” in the transcript is not the same person as Chip B. Lewis, who is currently representing Ms. Culbertson and who held the press conference today at his office, and is not related to Chip B. Lewis.

Rape Victims v. The Houston Police Department

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Don Hooper

Last week, the citizens of Harris County learned the story of an elderly woman who has been waiting for justice for over nine years. In August 2003, a man viciously raped this 77-year-old woman who was legally blind. Immediately following the brutal assault, she was taken to the hospital where medical personnel obtained evidence samples put together in a sexual assault kit. We now know that the Houston Police Department placed the kit in the property room at the police department and no testing was performed until the kit was found this summer, nine years after the vicious rape, robbery, and her identity was later stolen. When the kit was finally tested, the evidence was connected to Wesley Gordon, no stranger to the Harris County Criminal Justice Center or system.

In a sexual assault investigation, it is regular protocol for law enforcement to obtain a sexual assault kit from the survivor. Sexual abuse exists in different forms: known and unknown assailants, child and adult survivors. Some attackers look like Jerry Sandusky while others look like Gordon. Sex offenders are teachers, coaches, neighbors, and criminals and the abusive behavior is often repetitive.

Following the timely reporting of a sexual assault, survivors undergo a forensic examination at a hospital. This examination generally includes the collection of evidence that would assist law enforcement in identifying the perpetrator: blood, urine, hair samples, photo documentation, and clothing collection. Once the examination is completed, law enforcement is responsible for submitting the kit for scientific testing. All cases with the Harris County Sheriff’s Office are directly submitted to the Harris County Institute of Forensic Sciences (IFS) where there is no backlog on scientific testing of sexual assault kits. This stands in stark contrast to the Harris County Sheriff’s Department who immediately takes a rape kit to the crime lab for testing.

While the story of the nine-year-old, untested sexual assault kit is nauseating, this is just one of many examples of untested evidence at the Houston Police Department. In 2011, Irma Rios, Assistant Director of the Houston Police Department Crime Laboratory, said that about 16,000 rape kits sit in the Houston Police Department’s Property Room. Now, the department is reporting that 6,663 kits remain untested at the city. Regardless of the amount of untested sexual assault kits that remain untested at the city, it is imperative that all kits are immediately tested and that all usable evidence be entered into CODIS.

During a sexual assault investigation, a saliva sample is obtained from the suspect and compared with the evidence found in the kit. At the IFS, the suspect’s saliva sample is entered into CODIS, which allows law enforcement to connect the suspect in one case to other sexual assault investigations.

Sometimes, a sexual assault kit does not provide any usable evidence; but, other times, the evidence from the kit delivers the only link to the assailant. The criminal justice system owes it to survivors and our community to test every sexual assault kit and submit the usable evidence into CODIS. Additionally, the saliva samples from all suspects should be entered into CODIS, which would potentially solve assault cases and keep our community safer.

Mr. Gordon’s crime spree neither began nor ended in 2003. Prior to 2003, Gordon was sentenced to prison for Auto Theft and Burglary of a Vehicle. His criminal history also included Carrying a Weapon, Assault, Evading Detention, Possession of Marihuana, and Credit Card Abuse. Following the sexual assault in 2003, Gordon was charged with four other sexual assaults. One of the cases was no billed by a grand jury in January 2004 and the other three was dismissed in November 2004, April 2005, and November 2007. Were there sexual assault kits in these cases? If so, were they tested? When? Did law enforcement obtain saliva swabs from Gordon? If so, were they entered into CODIS?

This grave problem is not unique to Houston. In Detroit, a prosecutor is leading the effort to make certain that every kit is tested. Historically, the Houston Police Department submitted the kits to the property room and relied on the investigating officer to request testing at the crime laboratory. Once the evidence was finally tested, Gordon was almost immediately linked through evidence entered into CODIS by the IFS. Here, Pat Lykos has worked to express the importance of a regional, independent crime laboratory. This means that one laboratory, free from law enforcement control, would handle all evidence within Harris County. If this regional, independent crime laboratory were the IFS, there would be no backlog on sexual assault kit processing.

People who care about justice are hopeful that, after review of the Gordon case and others, Mike Anderson, the Republican nominee for Harris County District Attorney, will change his position in support of the City of Houston crime laboratory, whether it is under the umbrella of the Houston Police Department or the city itself. With any luck, Anderson will continue the great crime laboratory reform efforts of District Attorney Lykos. As former Houston Police Department Chief Bradford says, “Let’s do what we can to ensure that we don’t have two crime labs in Houston/Harris County, Texas.”

It is even possible that some of these untested sexual assault kits belong to cases where an individual is already accused and serving time. That was the case for Ricardo Rachell. The case was tried to a jury while the sexual assault kit remained untested at the Houston Police Department. Once the kit was tested, over five years after Rachell began serving his forty-year sentence, the results showed that the DNA matched another man – NOT Rachell.

After a number of investigative news reports about the quality of crime laboratory work at the Houston Police Department, the public crisis began. Michael Bromwich began a two-year, $5.3 million crime laboratory investigation in 2005. The investigation revealed a number of incompetent investigations and pure injustice. While Bromwich, appointed by Obama in 2010 as watchdog for offshore oil drilling, has given his approval for Houston Mayor Annise Parker’s crime laboratory proposal, I wonder if this latest example of incompetence would change his mind. It should.

We know that thousands of Texas rape kits have never been tested. These kits have been sitting on shelves in property rooms for decades. It is time to test the rape kits. New legislation passed by the Texas Legislature in 2011 requires all Texas police departments to submit rape kit evidence to crime laboratories within thirty days of collection. Senator John Cornyn is working to fund rape kit testing with federal funds.

The policy of allowing people from HPD to determine which rape kits are tested must end. A growing industry of studies to determine which rape kits to test has arisen. HPD has obtained grants for these types of studies creating a whole new industry of nonsense. It is very simple you test all the kits immediately. And, I will make a simple suggestion since this does come out of the HPD budget. HPD does not get one more dollar of overtime pay until every rape kit is tested. I am betting we will find more Wesley Gordon’s and quite possibly a few wrongfully convicted of rape. How many injustices will occur before the Houston Police Department is held accountable?

Wesley Gordon remains at large.