Attorney in raid rips city process

Relatives of woman slain by police say delay is deliberate

Relatives of a woman killed in a botched police raid in January accused Houston city officials in a court filing this week of slow-walking the legal process in order to avoid a deeper investigation and to stymie the family’s efforts to sue.

The move came months after Mike Doyle, an attorney for the family of Rhogena Nicholas, asked a local court for permission to gather information and testimony from police in order to consider the possibility of a civil lawsuit.

“It’s become increasingly apparent that the city is interested in doing everything they can to suppress any investigation instead of offering the transparency they promised the family and the public at the beginning,” Doyle said. “It’s pretty clear that it’s all aimed

at not letting anything come out to the family or the public.”

Nicholas and Navy veteran Dennis Tuttle were killed during a police raid at their home on Harding Street in Pecan Park on Jan. 28 when narcotics officers burst in the front door, leading to a gunbattle that left the pair dead and five officers injured. Harris County prosecutors later determined that the case agent lied on the search warrant to justify the raid; he retired amid an investigation into his conduct and has since been charged with felony murder in the deaths.

City attorneys earlier this year fought Doyle’s initial request to gather more information, arguing that the probate court in which the case was originally filed didn’t have jurisdiction and that the families already had enough details to sue.

In addition to accusing city officials of delay tactics aimed at preventing the slain couple’s family from being well-equipped to file a lawsuit before the twoyear statute of limitations runs out, Doyle on Monday called out the city for “recurring” problems with preserving evidence, even citing one case in which police destroyed evidence by blowing up a squad car as part of a training exercise.

In a written statement, city officials defended their legal maneuverings, explaining that the court did not have authority to consider the court filing. City spokeswoman Mary Benton said the city “responded appropriately.”

Houston Police Chief Art Acevedo could not immediately be reached for comment.

The deadly raid at issue started on the afternoon of Jan. 28 and involved narcotics officers from the Houston Police Department’s Narcotics Squad 15.

Though the no-knock raid was intended to target heroin dealers, police turned up only small amounts of cocaine and marijuana. Gerald Goines — the case agent who led the investigation — later retired amid accusations that he'd lied on the search warrant used to justify the raid. In August, he was charged with two counts of felony murder.

Unlike a regular murder charge, felony murder doesn’t require showing that the defendant intended to kill.

Instead, prosecutors just have to show that, while committing another felony, the defendant committed an act clearly dangerous to human life — in this case, the execution of a no-knock warrant — and that it resulted in a death.

His partner Steven Bryant also retired under investigation, and was later charged with tampering with a government record. Prosecutors alleged that he lied in an offense report about helping Goines with the investigation and falsely claimed that they’d recovered a plastic bag that contained a white napkin and two small packets of heroin.

Both Goines and Bryant have denied the charges.

The raid also sparked a civil rights investigation by the FBI and a wide-ranging review by the Harris County District Attorney’s Office of approximately 14,000 cases handled by Goines, Bryant, and other members of their squad.

In May, an outside team led by Mike Maloney, a former senior agent and forensic consultant for the U.S. Naval Criminal Investigative Service, spent four days combing through the cluttered home, finding dozens of pieces of uncollected evidence including teeth and bullets.

Maloney concluded police apparently fired some of the fatal shots through a wall and raised other serious questions about the raid and the department’s subsequent investigation into the incident.

In the latest motion, filed in an appeals court, Doyle argued city attorneys have been “completely uncooperative” with the Nicholas family’s attempts to obtain information such as 911 call records and the results of the police investigation into the incident.

Because the city is a governmental entity, he said, municipal attorneys are entitled to file appeals raising questions about the court’s jurisdiction.

But he described that as an unexpected move for a wrongful death case in a probate court, and his appellate co-counsel, Tim Lee, said he had not seen anything quite like that in the 36 years he has been practicing law.

“The courts of appeals moves deliberately but rather slowly and that’s usually fine — but it’s not fine in this set of circumstances,” Lee said.

The possibility of additional appeals after the jurisdictional issues are resolved could make the case drag out past the two years that the Nicholas and Tuttle families have to file legal claims, forcing them to move forward without the benefit of information that could be relevant to a wrongful death case.

“They’re trying to run the clock,” Doyle said.

He also argued that HPD’s track record of handling evidence was one reason that Doyle’s initial court filing was necessary, citing two instances in recent years in which the department did not safeguard evidence related to ongoing cases.

Doyle cited one case where a judge chided the city for intentionally destroying evidence and making deliberate mischaracterizations after it was sued for failing to provide probable cause hearings quickly enough to defendants arrested without a warrant.

In another case, the department blew up a squad car as part of a training exercise — also destroying a critical call slip, Doyle wrote.

“The City of Houston’s past history with preservation of evidence is not encouraging,” he wrote.

The same day Doyle filed his motion, City Attorney Ron Lewis filed one as well.

He needed a 20-day extension, he told the appellate court justices.

“The undersigned has a very busy trial and appellate practice,” he wrote.