DA told to turn over papers to cops’ lawyers
After District Attorney Kim Ogg charged a former Houston Police Department narcotics supervisor with tampering and theft, his lawyer set about preparing the defense.
A grand jury looming, Ed McClees asked for key documents that the DA’s investigators had used as the basis for charges against former Sgt. Thomas Wood — a routine procedure at the beginning of the case.
Prosecutors blocked his requests, he said, along with those of lawyers representing three other former officers charged during a lengthy corruption investigation into the Houston Police Department’s Narcotics Division.
“They are actively withholding material,” he said. “I don’t know why.”
On Friday a judge told prosecutors to hand the materials over.
McClees and his fellow lawyers argued that prosecutors aren’t following internal policies and long-standing practice over how they disseminate information to defense attorneys in the early stage of criminal prosecutions — and potentially violating the Michael Morton Act, a state law meant to ensure defendants have access to information used to prosecute them.
The conflict comes amid significant tension surrounding prosecutors’ investigation into the Narcotics Division. The case has pitted local police against Harris County prosecutors and carries potential implications for two of the region’s most prominent local law enforcement executives, both self-styled progressives devoted to transparency and criminal justice reform.
And it comes as police across the nation have come under tremendous scrutiny following the death of George Floyd in Minnesota at the hands of a local police officer.
The police officers’ lawyers asked Visiting Judge Leslie Brock Yates to order prosecutors to produce internal reports, mapping and confidential informant forms they used to build their case against Wood, former police officer Hodgie Armstrong, former Sgt. Clemente Reyna and former Lt. Robert Gonzales.
“We're flying blind,” said Lisa
Andrews, Reyna’s attorney. “We have no idea of the scope of their investigation.”
Assistant District Attorney Tiffany Larsen responded by arguing her office had disclosed significant amounts of material to the defense attorneys and would provide more as it became available.
But she balked at giving defense attorneys the internal report prosecutors used as the basis of the charges against the four officers.
“There's no reason to believe that providing them with internal reports would assist them further with anything material to their case,” Larsen said.
‘A big concern’
Yates sharply rejected that argument on Friday.
“I have a big concern you want me to strictly construe the Michael Morton Act, when the obvious intent of the legislature was for the defense to get everything they need to prepare their defense,” Yates said, ordering prosecutors to turn over the offense report
that defense attorneys sought and most of the other information they were seeking.
Ogg said after the hearing that Yates’ ruling would not produce anything that would surprise the defendants or their attorneys and promised that the former officer would be afforded the constitutional rights to which they are entitled.
“These officers know what they have done, and so do their lawyers. They are well aware that cheating on overtime pay, lying about witnessing one another’s undercover drug buys on offense reports and circumventing every check and balance in their narcotics enforcement protocol eventually resulted in the killing of an innocent family,” Ogg said.
Defense attorneys and several former and current assistant district attorneys said they were perplexed by prosecutors’ efforts to withhold the information the defendants’ lawyers had asked for.
“It makes me wonder why they want to keep these internal reports secret,” said Amanda Peters, a legal professor at the South Texas College of Law Houston who teaches criminal procedure. “This is one of the few professions
where you can show cards to other side and still win. Why are you trying to hide this stuff ?”
Police complaints
The case stems from the January 2019 Harding Street drug raid in Pecan Park that left two homeowners dead. It sparked an internal police investigation and probes by the DA’s office and the FBI.
Weeks later, investigators said case agent Gerald Goines lied about buying drugs at the home. Goines was charged with murder and other crimes. His partner, Steven Bryant, was charged with tampering with government documents.
On July 1, Ogg brought charges against the other officers, accusing them of lying about participating in search warrants or confidential informant payments where they weren’t present.
Police labor leaders have complained that Ogg was treating the accused former officers unfairly.
“DA Ogg did not apply the same standards to these officers as she would any other defendant,” said Douglas Griffith, vice president of the Houston Police Officers’ Union. “This is evident by the ruling of this judge today.”
Court records show that soon after Ogg charged the officers in July, defense attorneys took the unusual step of asking grand jury proceedings be recorded. They also asked for evidence to prepare information to present to a grand jury in the hopes jurors might decide not to indict their clients. An indictment is a formal charge, not a conviction.
McClees repeatedly requested information before a prosecutor told him, “You are not legally entitled to any documents pre-indictment. However, this office extends a courtesy to defense attorneys so they can prepare packets for a grand jury. In that respect, your client has been extended the same courtesy as any other defendant.”
On Friday, Yates ordered prosecutors to turn over their investigative report and mapping documents within 10 days, and the CI activity sheets within 45 days.
Just before the hearing ended, Larsen informed Yates that she disagreed with the judge’s order to turn over their internal report and planned to appeal.