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Tulia

Criticizing the HPD narcotics audit

It’s good that it was finally released, but that doesn’t mean that all questions have been answered by it.

Rep. Gene Wu

Standing outside the small house where Houston police officers conducted a raid that killed two and grievously wounded their department’s reputation, Gene Wu clasped the audit he’d been asking about for months and labeled it a scam.

Wu and other state lawmakers on Thursday criticized the internal audit of the Narcotics Division, calling it a “whitewash” and vowing to propose legislation to prevent government agencies from blocking the release of internal audits or similar documents in the future.

Also at the news conference were lawyers representing relatives of Dennis Tuttle and Rhogena Nicholas, the couple who lived at 7815 Harding St. and were killed in the raid. Gerald Goines, the officer who led the operation, was later accused of lying about the drug buy that led to the operation and is charged with felony murder and other crimes. His former partner, Steven Bryant, faces charges of tampering with a government record.

The raid could have happened only in an environment of “pervasive, longstanding custom and practice of illegal activity that was known and condoned at the highest level,” said Boyd Smith, one of the attorneys. “And this report doesn’t address that critical issue.”

[…]

The auditors — former Assistant Chief Pete Lopez, seven sergeants and one police officer — looked at the Narcotics Division’s street-level drug suppression squads. They found widespread sloppiness and lax supervision: unauthorized informant payments. Missing case review sheets. Incomplete offense reports. Hundreds of other administrative errors by undercover narcotics officers.

Most of the information authorities released previously centered on misconduct by Goines and Bryant, but auditors examined three years of casework of the two former Squad 15 officers, and probed casework of approximately 70 other undercover officers in squads 9, 10, 14 and 15. There are approximately 175 officers in the Narcotics Division.

Though they found policy violations and “numerous errors” related to confidential informant payments, they said they could not make conclusions about illegal activity without the ability to interview confidential informants or witnesses.

[…]

Patrick O’Burke, a former deputy commander at the Texas Department of Public Safety who oversaw drug law enforcement, said the audit is a “significant effort” but fails to identify the reasons for the sloppiness it uncovered.

“This report does not provide key findings that show how such problems will be limited or reduced in the future,” said O’Burke, tasked with overhauling Texas’ drug task forces after a racist drug arrest scandal in the 1990s in Tulia.

See here and here for the background. The point I would make is that the purpose of an audit like this is not just to document what happened, but also to provide a plan of action to remediate what went wrong. Where I work, if your department or project fails to get a sufficient grade on an audit – and we routinely perform audits on pretty much everything, not just on things that went wrong – you can’t go forward until you address the issues that the auditors cited. In this case, not only is the audit incomplete since key participants and stakeholders were not included, there’s no action plan. What is HPD going to do about this? How are they going to fix the problems that were identified, and put in processes and checks and safeguards and whatever else to ensure they never happen again? Note that “completely shutting down all activity related to this” is a viable path forward and should be considered as an option. What is HPD going to do? We need to know.

Let’s talk “meaningful reform”

Chief Acevedo brought it up, so let’s go there.

Houston Police Chief Art Acevedo’s voice cracked several times and his eyes welled as he railed against the death of George Floyd beneath a policeman’s knee and implored protesters to demonstrate peacefully with him.

“I will not allow anyone to tear down this city, because this is our city,” Acevedo shouted on Sunday to the group of mostly black Houstonians surrounding him at one of many protests in the wake of video showing Floyd’s fatal encounter with police in Minneapolis. “Pay close attention! Because these little white guys with their skateboards are the ones starting all the s–t.”

Video of Acevedo’s profanity-laced remarks went viral and, along with his other blunt statements this week, won the chief acclaim from those outraged by the death of Floyd, a former Third Ward resident.

It has also drawn anger from those who say Acevedo has failed to address the very things he’s condemning at home. His calls for police to be more transparent and enact “meaningful reform” have refocused attention on a series of fatal shootings by his own officers, and his refusal to release body camera video of the incidents.

“We’re looking at him say one thing on camera, but locally, we know different,” said Dav Lewis, a local activist who was friends with Adrian Medearis, one of the men who died in the spate of shootings. “We know different locally. We have not seen police accountability.”

The chief has also resisted calls to release the results of an audit of his narcotics division, rocked last year by one of its worst scandals in decades, and he has downplayed calls to bolster the city’s Independent Police Oversight Board, long criticized as a “toothless watchdog” group.

“While these are great photo ops, and maybe the chief has political aspirations, and this is all warm and fuzzy kind of stuff he’s doing, it’s time for some action,” said Mark Thiessen, president of the Harris County Criminal Lawyers Association.

[…]

Protesters intensified their calls on Tuesday for Acevedo to make the videos public. Mayor Sylvester Turner’s remarks at City Hall were punctuated by several people chanting “release the tapes,” and hours later Acevedo was directly confronted by a group of critical protesters at the downtown park Discovery Green.

Some lawmakers questioned Acevedo’s rationale for not releasing the body camera video.

“It is not law enforcement’s job to worry about prosecution,” said state Rep. Gene Wu, D-Houston. “It’s their job to be law enforcement.”

Wu, a former prosecutor who has called on Acevedo previously to release his audit, said Acevedo’s attitude “does more of a disservice to taint the public’s perception than anything else.”

“Right now you have the general public believing the police hide things,” Wu said. “When other cities during this crisis have shown they can release body cams immediately — that they can fire and discipline officers immediately — the fact we can’t get videos released months, sometimes even years later, is very telling.”

There’s more, and you should read the rest. On balance, I think Art Acevedo has been a pretty good Chief of Police. It’s not at all hard to imagine someone worse in his position – the current Chief of Police in Austin, for example. I also think that some of these reform ideas should be taken out of his discretion and mandated by the appropriate governing body. For releasing body camera footage and just generally being more transparent about it, that could be the Legislature or it could be City Council. Point being, the less room he or any Chief has to stall on releasing said footage, the less time we have to have this debate about transparency.

There are plenty of other things that can be done, at all levels of government, with the local stuff having the greatest potential for swift adoption. Tarsha Jackson, formerly with the Texas Organizing Project and now on hold in the City Council District B runoff, recommended several changes to the police union contract. CM Letitia Plummer, thankfully recovering from COVID-19, has proposed a budget amendment that would:

-Require officers exhaust all reasonable means before shooting
-Ban chokeholds and strangle holds
-Require de-escalation
-Require officers give verbal warning before shooting
-Notify Independent Police Oversight Board when death occurs
-Give IPOB subpoena power

It would also redirect funds currently allocated for a police cadet class as follows:

$2M, fund separate IPOB investigations
$1M, build online portal for residents to report misconduct
$3M, police training
$2M, permanent revolving fund for the Office of Business Opportunity, no-interest loans to minority-owned biz
$2M, enhance Health Dept’s Community Re-Entry Network Program
$500k, enhance Health Dept’s My Brother’s Keeper program
$1M, equipment and implementation of a “CAHOOTS” program (Crisis Assistance Helping Out On The Streets)

The point of that last item is to redirect a class of 911 calls that now go to law enforcement to this Crisis Assistance program, so the police can handle higher priority calls. Look at the photos she embedded in this Facebook post (specifically, this and this) to get a better feel for this. The city of Eugene, Oregon has used a program like this successfully since 1989. I strongly suspect most police officers would be happy to not have to respond to these kinds of calls for the most part going forward.

Stace adds recommendations from 8CantWait, which largely overlap the items noted by CM Plummer and Tarsha Jackson. Again, these are things that could be done now, if we wanted to. If there’s something you want to do in this direction, call Mayor Turner’s office and your district Council member along with the At Large members in support of these proposals. There are many ways to make noise.

There’s still more. Looking at the federal level, Sherrilyn Ifill and a triumvirate at The Atlantic have a list of action items for Congress, including an end (or at least a serious cutback) to qualified immunity, national data collection and tracking of police conduct and use of force, stronger enforcement of Title VI of the Civil Rights Act, and more. Ifill notes that “Currently, officers fired for misconduct and brutality against innocent civilians can be hired by other departments”. This will sound depressingly familiar to anyone who remembers the story of Tulia.

I personally would add: Decriminalization of marijuana and a complete shift of focus on other drug offenses from arrest and incarceration to treatment; Expanding Medicaid, which as I have said a gazillion times before will do so much to provide mental health services to countless Texans; Really attacking the homelessness problem by funding housing for the homeless and raising the minimum wage so that more people can afford housing in the first place; and repealing SB4, the odious “show me your papers” law. I believe these things will drastically reduce the interactions that ordinary people – overwhelmingly people of color – have with the police and the criminal justice system.

None of these things are panaceas, and none of them directly address systemic racism – I will defer on that to those who can speak more directly from their own experience – but I do believe all of them will have the effect of reducing harm to the black and brown people who have always received the brunt of the violence that comes from encounters with the police. Again, much of this is doable right now. Clearly, some other items will require winning more elections, in Texas and around the country, but we can still get started on what can be done now. If Chief Acevedo wants to come out in support of any or all of these things, that would be nice, too. Whether he does or he doesn’t, we can make them happen anyway.

Tulia ten years later

The 40th anniversary of the Apollo mission to the moon is on everyone’s mind these days, but there was another big anniversary this week that shouldn’t be overlooked: On July 23, 1999, dozens of mostly African-American citizens of Tulia, Texas, were arrested and subsequently convicted on drug trafficking charges that all hinged on the word of an undercover officer who was known at the time to be unreliable and was later convicted of perjury in these cases, after those whom he helped jail were set free. The Amarillo Globe-News notes the date, but for a real reminder I recommend going back to the original Texas Observer story by Nate Blakeslee that brought all of this shame to light. The sad thing, as Grits notes, is that the state of Texas ultimately did not correct the original wrong in this case. It is still possible to be convicted by a jury on the uncorroborated word of an undercover police officer. What has happened before will almost surely happen again.

Your eyes may deceive you

The Chron covers a report by the Justice Project about faulty eyewitness testimony and the many wrongful convictions to which it has led.

Most wrongful convictions in Texas stem from mistaken eyewitness identifications, errors that experts say could have been avoided — or even eliminated — with more sophisticated lineup techniques, according to a report released Wednesday.

Since 1994, DNA evidence has exonerated 39 men convicted in Texas of crimes ranging from kidnapping to murder, according to a report Wednesday by the Justice Project, a nonprofit focused on criminal justice reform.

Six of the cases occurred in Harris County. Each was investigated by the Houston Police Department. Each was built on flawed eyewitness evidence.

“Eyewitness identification is the leading cause of wrongful convictions in Texas and across the country,” said Edwin Colfax, Texas director of the Justice Project, which analyzed the factors that contributed to the wrongful convictions.

“But of law enforcement agencies across Texas, only a tiny fraction have any written policies for these critical investigative procedures and only a tiny fraction have implemented best practices,” he said.

[…]

The Justice Project report calls on law enforcement agencies to adopt several procedures, such as documenting the entire lineup process and having an uninvolved or “blind” officer conduct a lineup. It also recommends that witnesses see suspects’ photos one after another rather than at the same time in an array.

There are numerous bills that have been filed to address these points, many by State Sen. Rodney Ellis. The main opposition comes from police departments and District Attorneys, in some cases on grounds of disagreement as to what best practices are, and in some cases on grounds of pigheadedness.

Grits has a link to the full report. He also notes that the wrongful conviction figures are understated:

Ironically, by focusing solely on DNA exonerations, such analyses understate the real number of innocent Texans who’ve been exonerated – 35 were pardoned from the Tulia drug stings, 24 innocents were set up in the Dallas “fake drug” scandal, and another dozen or so were set up by a lying informant in Hearne, an event about which a major motion picture will be released next month.

Add those to the 39 DNA cases the Justice Project examines and the number of recent exonerations easily tops 100. (And it would not be difficult for some law student to spend some quality time on Westlaw to add to the list.)

If even some of the bills that address these issues get passed, it will be a huge step forward. For more on problems with eyewitness identification, Grits has you covered.