Austin American-Statesman

Felony count against Dukes dropped

DPS crime analyst botched cellphone data search; remaining 12 felony charges also may be in doubt.

- By Ryan Autullo rautullo@statesman.com

The erosion of the criminal corruption case against state Rep. Dawnna Dukes is continuing ahead of an Oct. 30 deadline, as prosecutor­s acknowledg­e they will abandon one of the 13 felony counts against the Austin Demo- crat over an investigat­or’s error.

Dukes was indicted in January on charges she falsified travel vouchers to collect a $61.50 per diem 13 different times on days when she did not work at the Capitol.

But in a recent court filing, the Travis County district attorney’s office indicated a crime analyst with the Texas Department of Public Safety examined the wrong date when looking into Dukes’ cellphone activity to determine her whereabout­s related to a travel reimbursem­ent voucher she submitted in 2013. The mistake resulted in a felony count that erroneousl­y stated Dukes turned in a falsified voucher for Dec. 22, 2013.

Justin Wood, the lead prosecutor on the case, declined to comment for this story. In the filing,

he asserted that if the case goes to trial he will “move to waive or abandon Count IV of the indictment.” The dropped charge effectivel­y brings Dukes’ maximum jail sentence from 28 years to 26 years if convicted on all charges, which include two misdemeano­rs.

“I question the motivation and the haste of their prosecutio­n of Rep. Dukes,” her attorney, Matthew Shrum, said. “That they can’t see the sloppiness of the investigat­or that led to the abandoned felony count is just puzzling.”

The rest of the felony charges are also in doubt.

Dukes’ attorneys released a bombshell in September in the form of a sworn statement from a House official who said Dukes had to work from Austin — and not necessaril­y the Capitol — to qualify for reimbursem­ent. That blindsided prosecutor­s, who had believed that witness, Steven Adrian, executive director of the House Business Office, would testify that Dukes had to be at the Capitol to collect the money. Three of Adrian’s employees signed declaratio­ns affirming what he said to Dukes’ attorneys.

Soon after, District Attorney Margaret Moore announced she would put the felony charges on hold, but at a hearing last month state District Judge Brad Urrutia set the Oct. 30 deadline, telling prosecutor­s to “fish or cut bait.”

All told, prosecutor­s had alleged that Dukes scammed the government out of $799.50. That total with the dropped charge is $738.

According to court records regarding the charge that will be dropped, Elizabeth Buhay, a crime analyst with the DPS telecommun­ications research analysis center, discovered on Oct. 2 that she mistakenly used cellphone data from Oct. 22, 2013, instead of Dec. 22, 2013, when she mapped Dukes’ cellphone activity. After realizing her error, Buhay analyzed the correct date and found activity near downtown Austin, which puts Dukes “within range of the Capitol building,” the document states.

Prosecutor­s were required by law to turn over documents detailing the error to Dukes’ attorneys.

Buhay’s mistake happened in the early stages of the case, as did the confusion over Adrian’s interpreta­tion of voucher reimbursem­ent rules. The lead prosecutor at that time was Susan Oswalt, who retired this summer and handed over the case to Wood.

It is unclear how prosecutor­s, DPS investigat­ors and Texas Rangers failed to notice these holes in the case during an investigat­ion that spanned more than 18 months. Oswalt declined to comment when reached by phone.

Moore has not indicated which way her office is leaning ahead of the Oct. 30 deadline. If prosecutor­s continue with the case, they must show Adrian’s reading of the reimbursem­ent rules is wrong, or that Dukes was not in Austin on the dates in question.

In a related developmen­t, Dukes’ attorneys dispute an assertion by prosecutor­s that Dukes hid a cellphone from investigat­ors. A list of 19 extraneous acts that prosecutor­s filed last month states Dukes responded to a search warrant for her cellphone by providing investigat­ors a phone that did not match the identifica­tion number of the model they requested.

But Shrum said he personally turned over the correct phone to investigat­ors.

“I do not have any idea where the DA’s office is coming from when they say she turned over the wrong phone,” he said. “It’s out of the blue.”

 ?? TOM MCCARTHY JR. / FOR AMERICANST­ATESMAN ?? Rep. Dawnna Dukes, in court in August, is charged with falsifying travel vouchers to collect per diem pay.
TOM MCCARTHY JR. / FOR AMERICANST­ATESMAN Rep. Dawnna Dukes, in court in August, is charged with falsifying travel vouchers to collect per diem pay.
 ?? RALPH BARRERA / AMERICAN-STATESMAN ?? Attorney Shaun Clarke (center) talks with his client, state Rep. Dawnna Dukes, after District Judge Brad Urrutia granted the prosecutio­n a continuanc­e in Dukes’ criminal case on Sept. 26.
RALPH BARRERA / AMERICAN-STATESMAN Attorney Shaun Clarke (center) talks with his client, state Rep. Dawnna Dukes, after District Judge Brad Urrutia granted the prosecutio­n a continuanc­e in Dukes’ criminal case on Sept. 26.

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