Feds help investigate destruction of evidence

Constable says problems smaller than described by DA, blames ‘rogue employee’

Federal investigators are helping to untangle the destruction of what prosecutors say could be as many as 21,500 pieces of evidence by the Precinct 4 constable’s office that led to scores of erroneous jailings or convictions.

Federal investigators are working with local authorities to untangle the destruction of what prosecutors say could be as many as 21,500 pieces of evidence by the Precinct 4 constable’s office that led to erroneous jailing or convictions of more than 150 defendants. Federal officials have the authority to investigate if they determine the loss of evidence led to wrongful incarcerations — a potential violation of federal civil rights laws.

“We are aware of the allegations, and are coordinating with local authorities,” said Shauna Dunlap, an FBI spokesman. “If in the course of the local investigation, additional information arises indicating potential federal criminal violations, the FBI will take appropriate action.”

Defense attorney Paul Morgan, whose case first drew public attention to the issue, called Tuesday for outside investigators to handle the probe, saying the Harris County District Attorney’s office has a conflict of interest.

District Attorney Devon Anderson’s public integrity section already is investigating problems that have affected both pending and recently prosecuted cases, but would welcome an outside audit and federal agencies’ help as the scope of the problem continues to expand, said Jeff McShan, the office spokesman.

Precinct 4 Constable Mark Herman, meanwhile, said he believes the agency’s evidence problems are smaller than the DA has described and were limited to one “rogue employee” — Corporal Chris Hess.

In a news conference broadcast live from his office in Spring on Tuesday, Herman painted a picture of a property room that was stuffed with evidence and a deputy who haphazardly cleaned out drugs, guns and other items over the course of weeks while other officers followed correct evidence destruction procedures.

Herman left open the possibility that Hess may face criminal charges.

“The problem was one employee and that employee has

been fired,” Herman said. “Whether it’s accidental, negligent or intentional, the DA’s office will find out. I assure you.”

Calls to Hess’ attorney, Burt Springer, were not immediately returned on Tuesday. But Springer said Friday that his client was wrongly singled out and blamed for the actions of an entire team of deputies who were not given clear orders. Springer said the errors were systemic and not Hess’ fault.

Mostly drug cases

Hess is a master peace officer who has been with Precinct 4 since June 1991, according to the Texas Commission on Law Enforcement.

Herman emphasized that though he, too, is a longtime Precinct 4 employee, he only became constable in May, when former Precinct 4 Constable Ron Hickman was named Harris County sheriff.

Herman said his own internal affairs investigation began in March when the agency discovered evidence had been wrongly destroyed in 26 open drug cases. He said his agency immediately contacted the DA’s office and found out only then that the public integrity section already had begun investigating problems affecting three open drug cases.

His office has since reviewed 7,761 items destroyed by Hess, but claimed problems appear limited to 861 items in 470 cases. Much of the rest of the destroyed evidence included stolen property and items related to cases that had been closed, Herman said.

DA ‘playing politics’

Herman said the DA’s larger estimate of 21,500 pieces of evidence relates to the desire to audit Hess’ work back to at least 2007. Herman said he has already contacted an outside auditor to assist in that effort and he emphasized that he did not believe other employees participated in inappropriately destroying evidence, though he said others have left the department.

As part of his own review, Herman said he found that Hess had never properly obtained court orders needed to properly destroy weapons or drugs, as required under the Texas penal code.

In two letters sent Tuesday to the U.S. Attorney and various local officials, defense attorney Morgan called for a federal investigation and for Harris County commissioners and other officials to conduct their own independent financial and performance audit so that Harris County leaders — and taxpayers — can determine how much evidence was wrongly tossed since 2007.

“My biggest concern that I have with all of this is that we have an elected DA that’s playing politics with other elected officials,” Morgan said in an interview with the Chronicle. “We can’t trust her to investigate herself. We need to see how big the scandal is — and the right (entity) to get involved is the federal government.”

Morgan’s client was facing a 25-year sentence for a methamphetamine charge last month when Morgan learned on the eve of trial via an email message from a Precinct 4 lieutenant that the evidence had been destroyed.

Harris County commissioners did not immediately respond to a request for comment on Morgan’s request for further audits. The Harris County Attorney’s Office declined comment because the loss of evidence is already the subject of a criminal probe.

Passed inspection

Herman said he welcomed an investigation by any other agency, but said his internal affairs division has not found wrongdoing by any others at the department.

“We’ve learned a good valuable lesson,” he said. “Unfortunately, this guy was in a position where he could devastate a lot of people and he did it.”

He noted that his agency recently passed an inspection in which the county’s own auditors asked for officials to account for about 100 pieces of evidence out of the thousands that were in the property room.

Records show that Harris County Auditor Barbara Schott completed a review of Precinct 4 accounts in June — a review that included the evidence room. Among other things, the auditor suggested that large amounts of cash stored in the evidence room should be more closely monitored and perhaps deposited instead of being held. But her report did not reflect any missing evidence or other significant problems.

Auditors visited Precinct 4 in late 2015 to do their review and were not later told of the irregularities that were found in March or of Hess’ firing, though they were still compiling their report at the time.

“We had no knowledge of that. I didn’t learn about those things until it was in the news,” said Mark Ledman, chief assistant of the Harris County audit division.