Feds help in­ves­ti­gate de­struc­tion of ev­i­dence

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

Houston Chronicle - - FRONT PAGE - By Lise Olsen and Brian Rogers

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.

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