DA’s fight to withhold documents continues
Lisa Andrews was headed to the Harris County District Attorney’s Office on Friday feeling relieved.
The attorney had spent a year fighting to see evidence that prosecutors had compiled to charge her client, a former Houston police officer tied to the deadly Harding Street raid, with overtime theft and other crimes. The state’s highest criminal court had ruled in her favor, and prosecutors had said they would comply.
Then she received an email from one of the main prosecutors in the case. They were asking the Court of Criminal Appeals to take another look.
“I’ve never seen anything like it in my entire legal career,” Andrews said.
Dane Schiller, a spokesman for the DA’s office, sharply challenged Andrews’ claims and said prosecutors had shared nearly 80,000 documents with defense attorneys over the last year.
“The defense wants everyone to forget that their clients are accused of being corrupt cops and
that their years-long scheme was uncovered after two innocent people were shot to death in their home,” he wrote in an email. “But we seek justice, and that includes exercising all our legal options with the court.”
The case dates back to the Jan. 28, 2019, Harding Street raid, when Houston police narcotics officers raided a home in south Houston. A firefight erupted, and two residents, Dennis Tuttle and his wife, Rhogena Nicholas, were killed. Four officers were wounded by gunfire.
Investigators found that the officer who orchestrated the raid, Gerald Goines, had lied about buying drugs at the home. The ensuing scandal led to an internal police investigation, as well as probes by the FBI and the DA’s office. Goines was fired and charged with crimes in federal and state court. Meanwhile, a Harris County grand jury indicted Goines and 10 other current and former Houston Police Department officers with crimes in state court — the majority of which involved alleged document tampering and theft by lying about overtime. Goines’ case has yet to go to trial.
When District Attorney Kim Ogg first announced the charges against Goines and his fellow officers, she described their alleged misconduct as “straight-up graft” that “can literally rot an institution from the inside out.” In the following months, Ogg sought to have one charge — a murder count against officer Felipe Gallegos — dismissed. In August, Ogg said misconduct by a former prosecutor handling the case raised concerns about his judgment and promised a grand jury would review the case again, even as defense attorneys accused her of using the situation as a delay tactic to avoid a loss at trial.
After Andrews’ client, former Houston Police Sgt. Clemente Reyna, was charged with aggregate theft and tampering with government documents, she asked the DA’s office to produce mapping data and the reports that Ogg’s investigators used as the basis for their charges against former Sgt. Thomas Wood, who was charged with similar crimes. Defense attorneys for three other former officers made similar requests.
Ogg’s prosecutors refused, arguing that they should not have to turn over documents that they considered “work product.” They said state law specifically exempted them from having to turn over internal notes and reports.
In August 2020, Visiting Judge Leslie Brock Yates, who was standing in for the judge handling the case, first ordered prosecutors to hand over the materials.
They refused. Instead, they asked the judge officially handling the case for permission to withhold the documents.
State District Judge Frank Aguilar shot down their request, as well. In response, Ogg’s team took the matter to the 1st Court of Appeals, which denied the prosecutors’ request in May. Ogg’s team again appealed, this time to the Court of Criminal Appeals, the state’s highest criminal court. At the time, Schiller, the DA’s spokesman, said the DA’s office had decided to appeal because the appellate court hadn’t answered the question, “Do we have to share these documents at this time?”
“We will definitely ask a higher court, the Court of Criminal Appeals, to make that determination,” Schiller said in May.
On Wednesday, the Court of Criminal Appeals, in a 7-2 opinion, upheld the rulings from Yates, Aguilar and the lower appellate court and ordered prosecutors to turn over the documents that Andrews and her colleagues were seeking.
On Friday, however, prosecutors informed Andrews and her fellow defense attorneys they were going to ask the Court of Criminal Appeals for a doover. Attorney Paul Doyle, who is representing former Officer Hodgie Armstrong, criticized the move by Ogg’s civil rights prosecutors as “a desperate and unethical attempt to circumvent the discovery rules.”
“What this tells you is that they are 100 percent hiding evidence,” he said. “Members of law enforcement should be deeply concerned that these public servants are being treated different than any other citizen in Harris County.”
Ed McClees, representing Wood, said he was similarly surprised.
“I don’t know what to tell you, man, and I’m at a very rare loss for words,” he said. “It’s unfathomable to me a prosecutor would ignore an order from the CCA, the highest criminal court in the state.”
Others in the legal profession voiced concern about Ogg’s handling of the Harding Street prosecutions.
“It’s ridiculous how arrogant these prosecutors are, thinking they don’t have to abide by the highest court’s order,” said Harris County Criminal Lawyers Association President Joe Vinas, “and it’s clear that they are actively hiding something they don’t want the defense to know.”
Murray Newman, a former prosecutor and a vocal critic of Ogg, said the move appeared to be a stall tactic by the district attorney’s subordinates.
“They are asking the same people who looked at (their motion) in the first place to look at the same set of facts and come to a different conclusion,” he said. “It’s silly. I don’t know how anyone involved in this could look a judge in the eye and say their motion for reconsideration has merit.”
Grant Scheiner, former president of the Texas Criminal Defense Lawyers Association, said he believed the move was “futile” and “unproductive.” It is particularly worrisome because it could create a loophole to the Michael Morton Act, a state law meant to ensure defendants have access to information used to prosecute them, he said.
“I’m a little perplexed,” he said. “It’s not in the DA’s office’s best interest to try to hang on to these offense reports. It looks bad and it hobbles the defense, but it also slows down cases. Why would they want to do that, especially with the courts so backlogged?”
Amanda Peters, a legal professor at the South Texas College of Law Houston who worked in the DA’s office for eight years, said it was “fairly common” for a losing party to seek a rehearing but that such cases were rarely granted. The Goines prosecution was different, she said, because the DA’s office had investigated portions of the case itself, rather than relying just on evidence produced by police investigators. And while lawyers frequently argue over discovery in civil litigation, state law requires prosecutors to disclose all their evidence to defendants.
“In criminal practice, the DA’s office shows its hand to the defense,” she said. “The fact that the DA’s office is trying to hide its cards is not only highly unusual, but it concerns me. And I’m surprised the DA’s office, knowing its ethical obligations, is fighting so hard to not disclose what it must.”