DAMAGE GROWS IN EVIDENCE SCANDAL
DA says hundreds of criminal cases from Precinct 4 may be dismissed
Hundreds, and possibly more than 1,000, of criminal cases in Harris County may be dismissed in the wake of revelations that the Precinct 4 Constable’s Office erroneously destroyed thousands of pieces of evidence while cleaning out its property room, District Attorney Devon Anderson said Friday.
The unprecedented number of cases that could be tossed out for lack of evidence, and exactly who was responsible for the massive blunder, seemed to leave Anderson shaken as she revealed that the mounting scandal was far more widespread than previously known.
“The number of cases from Precinct 4 is ever-changing,” she said. “Until we get a final number, we really have no idea how long it’s going to take to sort this out.”
Even as Anderson laid the blame for the debacle squarely at the feet of a single deputy under Constable Mark Herman, she called for an independent audit of the evidence storage room. She also said her office is investigating the northwest Harris County law enforcement agency.
“Our public integrity division
is currently conducting an investigation to identify all persons responsible for destroying this evidence and why they did it,” she said. “When that investigation is complete, criminal charges may be filed.”
The small public integrity division of the office has been investigating since spring, Anderson said, but her trial prosecutors were not aware of the problems until several weeks ago and have been navigating whether the cases, which are largely connected to drug charges, can be pursued or have to be dropped.
‘Tip of the iceberg’
The district attorney’s office has already dismissed nearly 150 criminal cases and is actively looking at 1,072 pending cases, Anderson said.
She said about 600 disposed cases also could be affected by the disclosure that evidence totaling 21,500 items has been destroyed.
Anderson said she asked Herman to hire an independent auditor to ascertain the total number of affected cases after his office kept supplying prosecutors with different lists of cases with destroyed evidence.
“Over and over again, the Public Integrity Division asked Precinct 4 for a complete list, but it was clear the lists were conflicting and incomplete,” an exasperated Anderson said. “This is just a critical part of law enforcement, maintaining the evidence,”
In August, the district attorney’s office said it had dismissed at least 90 misdemeanor and felony drug cases related to the evidence purge and was joining defense attorneys in seeking a new trial for a defendant who had been sentenced to 10 years in prison after pleading guilty in several Precinct 4 drug cases.
“It will make me sick if we have to dismiss a violent case because of this. It will make me ill if we have to do that,” Anderson said. “That’s why we are asking the prosecutors to try to resurrect these cases as best they can.”
Courthouse observers said the scale of the problem could be immense.
“I’m shocked that there are apparently more than 21,000 pieces of evidence that have been destroyed,” said Tyler Flood, president of the Harris County Criminal Lawyers Association. “I think all of this is just the tip of the iceberg. I think this just the beginning.”
He said the defense lawyers’ organization is investigating the situation to determine whether the district attorney’s office acted unethically.
Goes back to 2007
Herman pushed back sharply at the criticism from Anderson. He said in March he launched an internal affairs investigation after finding out that almost 8,000 pieces of evidence had been destroyed in January. He then fired the officer at the center of the controversy, Cpl. Christopher T. Hess, and alerted the district attorney’s office about the problems.
“We feel confident we know what we’re doing,” he said. “We found the problem and are fixing it.”
But, he said, the scope of improperly handling evidence could be even wider and began years before he was appointed in 2015.
The estimated 21,500 pieces of evidence that have been destroyed, some erroneously, goes back to 2007, he said. The elected constable before Herman was current Harris County Sheriff Ron Hickman. On Friday, Hickman declined to comment about Hess.
Herman said he believed Hess, and only Hess, had a history of improperly disposing of evidence going back eight years.
“Had (other officers) committed policy violations, I would have fired them,” Herman said.
Burt Springer, attorney for the fired deputy constable, said his client was being treated unfairly.
“He was told to clean out the evidence room because there was massive amounts of what I would call old and useless evidence there,” Springer said, explaining that several other deputies had been involved and that Hess had been following orders from a superior who has since retired. “It needed to be cleaned out.”
He said the evidence that had been destroyed was not just a few boxes of physical items, like seized drugs, but also electronic evidence, like videos.
Springer conceded that mistakes were made but said everyone who was involved at the constable’s office, especially supervisors, should share the blame.
“There was someone who had to pay the price on this mistake, and my client was chosen,” he said. Hess, 54, has spent his entire law enforcement career at the constable’s office, state records show.
Notification questioned
The problems with Precinct 4 cases first emerged among defense attorneys in August when lawyer Paul Morgan discovered that all of the evidence in his client’s felony drug possession case had been destroyed even as prosecutors pushed for a 25-year sentence.
On Friday, Morgan was outraged about the massive number of cases that may be affected and that defense attorneys had not been notified earlier.
“I find it suspicious that (Anderson) knew about this information and decided to just sit on it,” he said. “The minute an elected official tells you that 20,000 pieces of evidence are in question, that is when Anderson should have issued the red light.”
After his client’s case made headlines about two weeks ago, he said, the district attorney’s office sent an email to all 250 prosecutors to be aware of Precinct 4 cases.
“That command should have been given when Mark Herman first hinted that evidence had been destroyed,” Morgan said. “Instead, she just kicked the can down the road.”
Other observers found the situation just as baffling.
“As long as a piece of evidence is relevant to the justice process, you have to keep it,” said David Klinger, a professor of criminology and criminal justice at the University of Missouri-St. Louis. “I don’t understand why they would have done what they did.”