Thursday, September 06, 2012

Austin PD withheld Brady material, administrators contradict each other on infiltration of Occupy movement

Austin police administrators gave contradictory statements to Austin Chronicle reporter Jordan Smith about their use of three undercover operatives (or, perhaps, provocateurs) who infiltrated the Occupy Austin organization.

Police detective Shannon Dowell built a "lockbox" device for use at a Houston sit-in, the use of which upped criminal charges against the protesters from a misdemeanor to a felony. Reported Smith, such a "device usually must be cut off, posing risk to the user and, potentially, to the police or firefighters doing the cutting, if booby traps are employed inside the pipe." Further, "It was those concerns about safety, says APD Assistant Chief Sean Mannix, that prompted APD detective Shannon Dowell to get involved last December in constructing a series of lockboxes that the seven protesters were arrested for using at the Port of Houston."

So according to Mannix, the officer's actions were part and parcel of the intent of the operation to promote the safety of protesters and law enforcement. However, Austin police chief Art Acevedo told Smith that the undercover activities "went beyond the scope of the mission ... that was established at the executive level." "The trouble wasn't coming from the 'core Occupiers,'" says Acevedo, ignoring that the trouble was coming in part from APD's own officers. The chief told Smith that "'we are reviewing the matter, from top to bottom,' ... to see where the mission might have gone astray, in order to keep anything like that from happening in the future."

Which is right? Mannix's comments imply the officers were doing exactly what they were put there for, while if Acevedo is correct, it speaks to gross failures in management and oversight.

Regardless, the claim that the purpose of the undercovers was to protect the First Amendment rights of protesters is outright Orwellian. What a low opinion of public intelligence they must have to imagine anyone is stupid enough to believe such a disingenuous comment! (Sadly, the low opinion is probably justified. After all, the MSM keeps repeating the claim.)

Then there's APD's blatant recalcitrance when ordered to submit records for judicial oversight. Reported Smith:
Based on the transcripts of an Aug. 27 hearing in Campbell's court, the judge has not readily embraced the APD's official story. Dowell was subpoenaed by Gladden to attend the pretrial hearing, and to bring with him all written and electronic records – police reports, text messages, emails, pictures, and notes – related to his Occupy assignment. But Dowell showed up, essentially, empty-handed. He had photos on a thumb drive of the boxes and the woman he delivered them to, he testified, but he somehow lost that drive on the way to court; he had emails on a work computer (and, it seems, on a personal computer as well) and phone messages, but said he had deleted them. He brought with him only "a little note that I made here regarding [an Occupy] meeting," he said. There are no written police reports, he said; since there was no criminal investigation ongoing, there was no reason to write an official report for the APD system, he testified. Judge Campbell did not seem impressed: "When he is sent a subpoena and he doesn't respond and he doesn't come with his own attorney," she said, "I think they lose a little bit of the dignity that they should be carrying themselves with."

At the end of last week's hearing, she told prosecutor Joshua Phanco that the state must produce the names of Dowell's undercover APD cohorts or see the case dismissed. The two other officers are fact witnesses who could help determine whether the police induced the activists' use of the lockboxes. On Wednesday, those names were provided to the court for the judge's private inspection. Also provided were documents related to the APD's undercover mission, though court watchers said that some of those documents were redacted – which did not appear to make Campbell happy. A motion was also filed to quash the subpoenas for the APD's undercover officers, including Dowell, to appear in court, though the judge has not yet ruled on that request. Campbell has again reset the hearing, for Sept. 25, in order to give her time to review all of the relevant documents.
This "dog ate my homework" excuse is simply not credible. KTRK-TV reported that, in court, "APD dodged most questions Wednesday" at the latest hearing, where according to the Houston Chronicle, "State District Judge Joan Campbell lectured prosecutors ... about not disclosing the police officers' roles in the case." However, according to the Houston Chronicle:
prosecutors told the judge they had no idea the Austin Police Department evidently planted an officer in the movement, until defense attorneys subpoenaed him.

"Had we realized that an undercover officer was involved" and had participated in the construction of the dragon sleeves, "that is clearly Brady material," Harris County prosecutor Colleen Barnett said in an interview after the hearing. "Had we known that, we would have turned it over to the defense."
"Brady material" is exculpatory evidence that's required by law to be handed over to defendants. Police failing to hand that information over to prosecutors - much less destroying it, as Dowell may have done - is a bigger deal, even than the alleged entrapment. Given that, I find bewildering the statement from Assistant Chief David Carter to the Austin Statesman that "Nothing officials have seen initially indicates department policies were violated." Is there not a policy in the department to turn over Brady material to prosecutors?

As Grits mentioned previously, I've little sympathy nor patience with the Occupy protesters' methods - which I earlier called "dumb as a bag of hair" - and in most cases I think anyone foolish and narcissistic enough to intentionally get themselves arrested at such an event deserves what they get. But here the police sought not to deter crime but to worsen it, facilitating felonious actions instead of thwarting them, and withheld exculpatory evidence from prosecutors. Combine that with the contradictory justifications from APD administrators - disavowing their officers' activities while simultaneously justifying them - not to mention the evasive refusal to provide documentation to the judge, and it's difficult not to find understated the judge's observation that, at the very least, the episode caused the department to "lose a little bit of the dignity that they should be carrying themselves with."


Anonymous said...

Wow, the world is really turned upside down here. Yeah, sure. Reality is that this is much ado about nothing. Had APD not been involved in the capacity they were this whole thing might have gone much worse. As it is the true intent of the occupiers was exposed and they were properly charged. Dowell should be given a medal.

Gritsforbreakfast said...

9:23, if you think police withholding and possibly destroying Brady material deserves a medal, it's not me who's got "the world ... turned upside down"

Also, the protesters who didn't use the APD-made lockboxes got misdemeanor charges, so it's patently false that "Had APD not been involved ... this whole thing might have gone much worse." In fact, APD's involvement made things worse, if by "worse" one refers to the commission of more serious crimes.

It's no wonder you don't put your name on such trollish comments.

rodsmith said...

interesting. but typical police FRAUD! and LIES!

Since i see they have no problem with deleted materal when it's a SEX CRIME...hell they have been know to recover images that they THEMSELVES prove the machine owner couldn't even see! but stil have no problem with charging and CONVICTING them of having.

This whole police department needs to be disbanded and all supervisory officers right up to the chief need to be arrested and charged.

Anonymous said...

Wait a second,...Didn't Acevedo just crawl up on a soapbox at some public forum within the last few months and criticize prosecutors for not turning over Brady material and insist that his department always turned over exculpatory and mitigating evidence to the DA's office? Or did I just dream that, Grits?

Gritsforbreakfast said...

Good point, 9:43, I'd forgotten about that till you mentioned it. He actually argued that prosecutors who violate Brady should themselves be prosecuted. Here's an excerpt of the exchange from Texas Monthly:

Acevedo: ... I’ve got to tell you, it really bothers me when I hear prosecutors say that prosecutors don’t understand Brady, when, as a police chief, I use Brady to fire people.

Siegler: You’re thinking that Brady is this black-and-white, clear-cut thing. That’s not what Brady is in the world of prosecutors. ...

Acevedo: I’m not an attorney, but if I’ve got information that is exculpatory, I have a moral obligation to—

Siegler: “Exculpatory” is an easy word to use, but we’re talking about inconsistent evidence, mitigating evidence—that too. And I guarantee you every single one of the cops that work for you don’t put in their offense reports every single little inconsistent thing they know.

Acevedo: Oh, absolutely. But you know what? Here’s the piece that is missing, that Anthony’s talking about. You can train people all you want, but you’re dealing with human beings. If there are not consequences for willful misconduct, you can have all the training in the world, you can have all the rules in the world.

Graves: You gotta do more than train.

Acevedo: It drives me nuts that I have 180 days [from the time of misconduct to discipline a police officer]. That’s all I have. One hundred and eighty days. That’s nothing. There should not be a statute of limitations when it comes to violating the public trust. And cops will hate me for saying that. Prosecutors will hate me for saying that. But in a democracy, if our criminal justice system doesn’t work, we are in deep trouble. And it starts with those consequences.

Anonymous said...

Really appreciate this post about yet another law enforcement agency that doesn't understand its Brady obligation.

One not-so-small point: Brady material does not just encompass evidence that exculpates. It encompasses "favorable" evidence.

(In Brady, the S. Ct. explicitly stated that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963)).

This is a significant issue. Prosecutors frequently want to limit Brady turnover to evidence that points to lack of guilt, but in fact, the universe of what must be produced is far larger than that encompassed by "exculpatory" evidence. For example, in the case of Giglio material (a type of Brady evidence), evidence relevant -- in any freaking way -- to punishment must be turned over.

Thanks for covering this!
Your Faithful Reader

Anonymous said...

The practice of police not turning over material is very widespread and is getting worse over time. Much of this is not accidental --- the feds *train* police to keep certain aspects of their investigation in 'separate records' or not to make records. (for example, FLETC training on the use of cell phone tracking). Even more problematic, police who are keeping records "at home", on their "personal computer", etc. And will try to obfuscate or outright lie about it. Similarly, the police (particularly detectives in these parts) are using 'personal' laptops/tablets and private phones, etc. to bypass official recording/retrieval of records.

This causes vexing legal complications and often results in battles over subpoenas duces tacem and arguments over legal representation. In the end, to get the records you need (and are legally entitled to) you have to subpoena everyone under the sun and fight out several individual battles with the city, the department, the officer, the DA, etc. Defense attorneys frequently loose these battles simply because of the bureaucratic obstinance of the police/city/officer.

doran said...

Grits, you or the Chronicle article you featured quoted Dowell as saying "There are no written police reports, he said; since there was no criminal investigation ongoing...."

Wow. I'll bet he recants that remark, or says he was mis-quoted.

If there was no criminal investigation going on, what were the cops doing with "infiltrating" the group using false names, false etc? There would be no need to do that: They could just show up in uniform and sit silently in meetings and take notes of what was said if that kind of info was what they wanted.

That there is or was an ongoing criminal investigation is generally the crutch that allows undercover cops to skate real closely to committing criminal acts themselves, and barely to avoid giving defendants the defense of entrapment. Without the "cover" of an ongoing criminal investigation, cops in Dowell's position, or predicament, should be considered to be just as criminally liable as their co-conspirators in Occupy.

Anonymous said...

My question is who ultimately authorized this activity.....

Anonymous said...

United States v. Agurs, (1976) found that there are three situations in which a Brady claim might arise: (1) where new evidence revealed that the prosecution introduced trial testimony that it knew or should have known was false; (2) where the prosecution failed to obey a defense request for specific exculpatory evidence (evidence that helps to prove defendant's innocence); and (3) where the prosecution failed to volunteer exculpatory evidence that was never requested, or requested only in a general way; and noting the existence of a duty on the part of the government in this last situation when suppression of the evidence would be “of sufficient significance to result in the denial of the defendant's right to a fair trial.”

Anonymous said...

Police officers do a lot wrong. Mostly they do what is right but enough wrong to make it worthwhile to keep a sharp eye on them. But this is not one of those times. The offenders who chose to commit the worst act in furtherance of their crimes, using the locking devises, were properly charged. The ones who did not use them were properly charged. It was a choice made by those individual offenders. You may ate the police, you may be sympathetic to occupy but there was nothing done wrong here by the police. Scott, I'm pretty disappointed that you can't tolerate another opinion without resorting to such a thuggish response.

Gritsforbreakfast said...

"Thuggish," 2:55? Really? I can "tolerate" other opinions - it's not like I deleted yours - but that doesn't mean I won't call BS when some fool claims overt Brady violations deserve "a medal." I neither "ate" the police nor sympathize with the Occupy folks, who I called "dumb as a bag of hair," but to claim "there was nothing done wrong here by the police" when Harris County prosecutors are accusing them in open court of withholding Brady material beggars belief. Sorry to disappoint you.

doran said...

Anon 2:55. I have a hypothetical to put before and which I hope you will address.

Assume Mr. Dowell and his two as yet annonymous partners had not been law enforcement officers, but had simply been three more people trying to Occupy something. Assume they had conspired, as they did, with some of the Occupy people for some of the Occupy people to use those lockboxes, and had constructed those boxes, and gave them to the people who used those boxes. Wouldn't Mr. Dowell +2 be criminally liable either as criminal conspirators or as some kind of party to the crime?

If I give a gun to a bank robber, or to someone whom I know is planning on using it to knock over a pharmacy, wouldn't I have some exposure as a party to the offense?

The issue here is not entrapment. The issue is whether Dowell +2 should be indicted.

Anonymous said...

Scott if you believe the Harris County DA's office has a stellar record on Brady and their unimpeachable credibility is what you are pegging your argument on I feel sorry for you. They are just trying to throw APD under the bus. Nothing has proved Dowell has done anything wrong and I don't think he did. There are plenty of Brady issues the HCDAO should be concerned about right in their backyard. If this wasn't involving an APD officer they would not bat an eye. But, it sounds like you still have an axe to grind with APD of the incident involving you and your granddaughter. I don't blame you for carrying a grudge over that but you should stop allowing it to influence your other work so much.

Phillip Baker said...

There is a reason police- of any variety- should be constantly scrutinized for honesty and lawfulness. These are individuals who are armed (heavily, usually), handed enormous powers over other people (A power largely unchecked, unless the recipient has some bucks or connections), and a long history of operating their own in-house justice system. Any American who has even a glimmer of the founding principles of this republic, should always be deeply suspicious of all police actions. Yes, most are good cops, doing a hard job and deserving of our thanks. But there are enough "bad apples" on all forces to warrant caution, especially given the culture of silence in all law enforcement agencies and the dire consequences police abuse can cause.

Gritsforbreakfast said...

12:11, it's classic troll behavior to ignore facts and arguments an instead try to impugn motive - of me, HCDAO, etc.. At this point you're boring me, particularly since you conceal your own identity (if not so much your motive to cover up APD misconduct) to keep from being held accountable. This has nothing to do with my own encounters with APD and I'd have said the same thing if any other department in the state had withheld exculpatory evidence from prosecutors. Move on ... your schtick here is pretty much played out.

Anonymous said...

What's not been stated is the felony charge in this case even without the "help" of the officer is incredibly questionable, if not outright bogus. The judge in this case initially threw out the charge, as has been done before when those who don the dragon sleeve are brought up on felony charges. The prosecution actually took this to a grand jury in order to bring the case back to the same judge.

While you may have objections to the tactics of OA in the first place, please understand that the use of lockboxes, while not specifically approved by GA, do not violate the core value of non-violence in my opinion. And the only person who could have anticipated that they would lead to a felony charge might have been the officer who manufactured them.

Anonymous said...


Jay-Z says Occupy Wall Street had a fatal flaw: Its 99 messages.

The legendary rapper, in a new interview, says he never threw his support behind the protest movement because he didn’t understand what it stood for.

“What’s the thing on the wall, what are you fighting for?” Jay-Z told The New York Times in a wide-ranging interview.

Anonymous said...

Well, we'll watch and see how this all plays out but I've lost a lot of respect for you, Scott. it seems you are only really wanting people to agree with you and when they don't you stoop to name calling. Sad. I did think you were above that.

Gritsforbreakfast said...

1:30, Of course you're not name calling when you call me "thuggish," claim I "ate" (sic) the police, etc., right? It seems like you want to dish out abuse (anonymously, and unaccountably) but can't take it when someone calls you on your BS. I made my case based on reported facts. You ignore facts and arguments and instead attempt to whitewash over them and anonymously impugn motive with irrelevant, off-topic accusations. Believe me, I don't care a whit for "respect" from anonymous trolls who behave thusly. You can keep it.

The Comedian said...

Phillip Baker,

The problem with the "good cops" maintaining "the culture of silence in all law enforcement agencies" is that by doing so they become "bad apples" too and then the whole barrel stinks.

Thomas R. Griffith said...

Hey Grits, I could be wrong but isn't this the second time he's (trollerrotsie) lost it this year?

Regardless, it's always a treat to see spanking where it's due. Thanks.

Glyngayla said...

BOTTOMLINE: What is felonious intent or conduct for civilian citizens needs to same standard for prosecutors. Most of the actions described above, and the weight of their effect on lives of citizens, are NOT "MISCONDUCT"...They are "MATERIAL" AND "FELONIOUS" by the uniform standards of this nation. WHY ARE THESES ACTS NOT BEING PROSECUTED?

Glyngayla said...

THINK ABOUT IT: Law enforcement is not going to get properly sanctioned and charged when warranted, if and BECAUSE PROSECUTORS ARE NOT being held to that standard. PROSECUTORS AND LAW ENFORCEMENT WORK AS A COLLABORATIVE TEAM - OPPORTUNISTIC COLLUSION IS ALL TOO COMMON, with the current lack of oversight and a system with huge external pressures to get convictions, it's almost a temptation too unbearable for a superman/woman. IF PROSECUTORS GO AFTER LAW ENFORCEMENT IN SUCH A CULTURE, THEY MAY INCRIMINATE THEMSELVES,OPEN THE DOOR TO RETALIATION. Consequently, there is little deterrent for prosecutors to not fudge on this. LACK OF CONCRETE SANCTIONS FOR PROSECUTORS ENABLES THE POLICE MISCONDUCT AND EVEN CRIMINALITY HERE.

Anonymous said...

Scott, you can like it or not. It's your website. But you are the first one to call names and that showed you as the lesser in this exchange. You can try to disguise it as something else but it all boils down to you being wrong. You've got an ax to grind with APD. Rightly so as I thought and posted at the time. But you're letting it carry over to this case and you can't help but rush to condemn Dowell and can't tolerate the thought that what he did was probably completely proper and the occupy folks were properly charged. Grow up and maybe you can get back to your senses.

Anonymous said...

Another aspect of supplying the lock boxes is that it makes them accomplices and as such their uncorroborated testimony is not admissable to convict those they supplied the boxes to. Corroboration for some elements of this situation could be lacking and if so could result in dismissal or acquittal.