DA says hun­dreds of crim­i­nal cases from Precinct 4 may be dis­missed

Houston Chronicle - - FRONT PAGE - By St. John Barned-Smith and Brian Rogers

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.”

Melissa Phillip / Hous­ton Chron­i­cle

Har­ris County District At­tor­ney Devon An­der­son called for an in­de­pen­dent au­dit of Precinct 4’s ev­i­dence stor­age room.

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