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Paul Morgan

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.

When is a filing deadline not a filing deadline?

Answer: When there will be another filing period after the filing deadline, as will be the case in Texas, according to the Secretary of State.

“Based on the federal court’s order handed down December 16, candidates will be permitted to file when the filing period reopens on a date yet to be determined and set to close, again by the federal court’s order, on February 1, 2012,” said Secretary of State spokesman Rich Parsons.

I presume this only applies to the offices without districts, i.e., Congress, State Senate, and State House. Those of you looking to file for County Commissioner or some such, it’s now too late.

I have been informed that the second filing period, to begin on a date to be determined but to end no later than February 1, will be for all offices, not just those affected by the redistricting litigation. My apologies for the error.

The big news of the day is that Nick Lampson will saddle up again.

Nick’s back.

“I am. I have sent in the filing papers, so that means I am in the race (for the 14th Congressional District),” said Former Rep. Nick Lampson, 66, who held the Ninth Congressional District for eight years before redistricting split it up, putting Jefferson County and part of Orange County into the Second District along with a substantial chunk of Houston’s northern suburbs. Republican Ted Poe won the reconfigured Second District in 2004.

Also in the race are Beaumont attorneys Michael Truncale, 53, and Jay Old, 48, who both are running as Republicans, as well as a handful of other GOP contenders.

The latest round of redistricting hasn’t quite played out yet, but Lampson, a Democrat, was confident enough that the newly drawn 14th District will remain relatively stable, containing somewhere between 80-85 percent of the former Ninth District, that he was willing to throw his hat in the ring.

Expect there to be a lot of money in that race. It’s winnable for a Democrat, and Lampson is the best person for that job. Welcome back, Rep. Lampson.

Meanwhile, Democrats also now have a candidate for Senate who can claim to be someone some people might have heard of, former State Rep. Paul Sadler.

Sadler served as chairman of the House Public Education Committee and played a major role in passage of several key education laws from 1995 through 2001.

“I decided to run because Texas needs an advocate who can put the good of the state ahead of all else,” said Sadler, an attorney and current executive director of The Wind Coalition, a nonprofit that promotes use of wind as an energy source. “Like all Texans I am disgusted by the gridlock in Washington. I have a solid record of working with members of both parties to accomplish legislation that improves the lives and education of our children and all Texans.” Sadler represented an East Texas House district.

Best I recall he was a pretty decent fellow. He ran for SD01 in a special election to replace the retiring Bill Ratliff in 2003 and lost 52-48 in the runoff to Sen. Kevin Eltife. I doubt he has any more potential to win than Gen. Sanchez did, but he’s someone who has successfully run for public office before. He’s the frontrunner for my vote in the primary.

There were three new filings for the Lege in Harris County yesterday: Cody Pogue in HD127, Paul Morgan in HD135, and Sarah Winkler in HC137. Someone had left a comment recently asking where all the longshot candidacies were, well, those first two would qualify for that. As for Winkler, she’s a trustee in Alief ISD – I interviewed her in 2009 when she last ran for re-election. Her entrance makes HD137 a four-candidate race, with all four being good quality.

Unfortunately, there are also a couple of lemons on the ballot as well. A perennial candidate who has mostly filed as a Republican in races past is in for SD07; I’m not naming him because he has a history of harassing behavior. Popping up like a pimple in Precinct 4 is hatemeister Dave Wilson, filing for the second election in a row for County Commissioner. He was booted from the ballot last time for having an invalid residential address; I’m not sure where the ensuing litigation now stands, but with any luck he’ll be thrown off again. Even if he isn’t, the good news is that this time he’s not alone – in a deliciously ironic twist, former HGLBT Political Caucus Chair Sean Carter Hemmerle filed to run as well. Don’t let me down here, Precinct 4 voters.

I mostly haven’t paid much attention to the GOP filings in Harris County, as I’m not that interested in them, but with the “deadline” having passed I thought I’d take a peek and see who’s doing what to whom. Here are the highlights:

Senate: With the addition of the gentleman from ESPN, there are now ten candidates for KBH’s soon-to-be-vacated seat, a few of whom you’re familiar with. One recent entrant is 2008 HD134 candidate Joe Agris, who has apparently decided to go the Grandma Strayhorn route and call himself “Doc Joe” Agris. My guess is the end result will be approximately the same.

Congress: Kevin Brady, Mike McCaul, and Pete Olsen have primary challengers. Two-time loser John Faulk has not filed for CD18, with Sean Siebert taking his place as the designated sacrificial lamb. State Sen. Mike Jackson has six opponents for CD36, while three people I’ve never heard of are running for CD34. My guess is that the A-listers are waiting to see what SCOTUS does before hopping in.

Judiciary: A couple of old familiar names pop up on the Supreme Court ballot: Steven Wayne Smith, who ousted Xavier Rodriguez in 2002, was ousted by Paul Green in 2004, and lost to Don Willett in 2006, is back to challenge Willett again. Rodriguez, of course, went on to a federal bench, and was one of the three judges in the San Antonio redistricting case, who ruled in favor of the plaintiffs. (I’m assuming this is Steven Wayne Smith – the Harris GOP website simply says “Steve Smith”.) Also making like a zombie is John Devine, wingnut former occupant of a Harris County bench who went on to lose races for County Attorney and CD10. He’s one of two people running against Justice David Medina. Ken Law gets to be the 2012 test of “Can a guy with a nice, easy, Anglo name knock off an incumbent Latino Republican in a primary even if the entire GOP establishment is against him” as he goes against Perry-appointed Judge Elsa Alcala on the Court of Criminal Appeals. CCA Judge Larry Meyers is also taking another crack at Presiding Judge Sharon Keller. In Harris County, several judges who lost in 2008 are seeking rematches, including Jeff Hastings, John Coselli, Lamar McCorkle, Roger Bridgwater, Tad Halbach, and Brock Thomas.

SBOE: As noted before, Terri Leo is stepping down in District 6. Donna Bahorich is unopposed for the nomination to succeed her. Barbara Cargill has a challenger in District 8.

The Lege: State Rep. Larry Taylor has two opponents for SD11, which is being vacated by Sen. Jackson. Five Republican incumbent House members have primary opponents – Dan Huberty (HD127), John Davis (HD129), Bill Callegari (HD132), Jim Murphy (HD133), and Debbie Riddle (HD150). I can only shudder to think what a challenge from Riddle’s right might look like. There are still four people listed for HD136, including former Council Member Pam Holm, even though that district was eliminated by the San Antonio court. You never know what SCOTUS will do, of course. The most interesting name for a Democratic-held seat is another former Council member, MJ Khan, who is vying for the open HD137. Seems unlikely to me that the court will rule in a way to make both of these candidacies valid, but again, you never know.

County: We already knew that DA Pat Lykos and Tax Assessor Don Sumners had company. So do looney-tunes HCDE Trustee Michael Wolfe and newly-appointed County Commissioner Jack Cagle, who has two opponents in his primary. There are three candidates for the open HCDE Precinct 3 seat, with two others running to be the candidate who gets crushed in Precinct 1 in Roy Morales’ place. Finally, there are eight candidates for Sheriff, including 2004 Democratic nominee for Sheriff Guy Robert Clark, who also lost in the 2008 Dem primary to Sheriff Adrian Garcia. If you can’t beat ’em, join ’em, I guess.

Finally, both the HCDP and the Harris County GOP will have contested elections for Party Chair, as Lane Lewis and current GOP Chair Jared Woodfill drew last-day opponents. Keryl Douglas, the subject of that “draft” movement I mentioned before, will oppose Lewis, while Woodfill will face someone named Paul Simpson. I know basically nothing about either person, but I do know I’ll be voting for Lewis to be interim Chair at tonight’s CEC meeting.

That’s all I’ve got. Let me know what I missed. PDiddie and Texas Politics have more, and be sure to see the Texas Tribune and TDP pages for any other blanks to be filled.