Friday, March 27, 2015

Should the AG or special prosecutors litigate police misconduct instead of local DAs?

On Thursday, your correspondent testified before the House Select Committee on Emerging Texas Law Enforcement Issues on behalf of the Texas Criminal Justice Coalition for a pair of bills which suggested alternatives to having local District Attorneys prosecute cases of serious police misconduct.

HB 1369 by Harold Dutton would create a special unit at the Attorney General's office to prosecute police misconduct cases, taking them away from local District Attorneys who must worry about the consequences of indicting officers who are witnesses in their cases, not to mention political backlash from police unions or other elected officials. HB 1840 by Ron Reynolds would address the same issue by appointing a special prosecutor, or as envisioned in the committee substitute, appointing a prosecutor from a neighboring county. See video from the hearing here. The bills come up at the 23:40 and 1:58:10 marks, respectively.

Rep. Dan Flynn offered up an alternative idea that garnered some interest: Having a panel of judges appoint special prosecutors in police misconduct cases instead of having the AG or another DA's office do it. He compared the situation to Republicans wanting the Travis County Public Integrity Unit taken away from Rosemary Lehmberg because of a lack of public confidence, emphasizing that a perception of fairness can be as important in politics as reality.

Hearings on both bills were punctuated with emotional testimony from people whose family members had been shot by police. Grits thought it was a good discussion and appreciated Chairman Allen Fletcher giving the bills and the families a hearing. He let the witnesses pro and con have their say and I thought the issues were fleshed out quite well, particularly given that this was the first time the topic has been seriously raised at the Texas Legislature.

At the hearing, I offered an anecdote from my own experience advocating on this topic to illustrate the difficult position prosecutors face when confronting allegations of crimes by police. I wrote up a few notes beforehand to refresh my memory but at the hearing spoke off the cuff, referencing them as an outline. Find my notes discussing the discouraging and unhappy example of of Samuel Ramirez below the jump:
The Case of Samuel Ramirez
The Samuel Ramirez case was a formative episode in my thinking about prosecuting police misconduct. I got involved in criminal justice work in the 1990s in response to a string of police brutality episodes and killings of young black men by Austin police that seemed as improper to me then as Eric Garner or any of the cases which have gained recent national attention.

One of the highest profile of those cases was Samuel Ramirez in the late ‘90s, one of the central episodes which resulted in the creation of Austin’s Police Monitor office.

A crack addict called 911 to say a cop just left her house after forcing her to perform oral sex. When police arrived, she gave them a bag into which she said she’d spit the officer’s semen. The DNA turned out to match the officer she named, Samuel Ramirez, who she said forced her to perform oral sex while he was on duty and in uniform, having doubled back to her house alone after visiting her earlier with another officer on a disturbance call. Ramirez admitted to having sex with her, presumably while on duty, but said it was consensual.

The Travis County DA at that time was Ronnie Earle but he was near the end of a decades long tenure and by that time his First Assistant, Rosemary Lehmberg, was calling all the shots on this and other high-profile cases where police were accused of crimes. Their office charged Ramirez only with Class A misdemeanor official oppression instead of sexual assault, an omission which was received with widespread disapprobation when his conviction was announced. Dissatisfaction over police and prosecutors' handling of that case were a pivotal driver in the push to create Austin's Police Monitor office. On the flip side, the local police union expressed outrage that Ramirez was charged and convicted at all and were in a sense vindicated when the conviction was overturned.

Which brings us to a dark coda to the story - more disheartening, even, than prosecutors treating a police officer leniently when he's accused of sexual assault. In 2002, Texas Third Court of Appeals overturned Ramirez’s conviction based on a finding of intentional prosecutor misconduct: withholding impeachment evidence from the defense. The evidence at issue wasn’t about the alleged sexual conduct. Instead, the woman answered “no” when asked if she planned to sue for damages over what happened. It turned out an attorney from the NAACP had filed a suit on her behalf, which the court decided prosecutors either knew or should have known.

Judge John Onion, former presiding judge of the Court of Criminal Appeals, was sitting on the Third Court as a visiting judge. He wrote the opinion overturning Ramirez’s conviction and excoriating Travis County prosecutors in no uncertain terms for professional misconduct.

That outcome left somebody like me who thought Ramirez should be punished doubly frustrated. The court had never said he didn’t commit the offense of forcing the victim to perform oral sex. And yet, nobody wants prosecutors to cheat to win, even to convict an alleged rapist cop.

In light of that postscript appellate opinion, consider the position of the prosecutors throughout that case. They were attacked bitterly for many months in the press and at public protests for only charging Ramirez with a misdemeanor. The episode was portrayed locally as a case study in the need for improved police oversight.

Then, when the conviction was overturned because prosecutors engaged in misconduct, the DA gained no brownie points with the public for aggressively prosecuting the alleged offender. For the most part, the media ignored the development, and to those paying attention, the DA's office just looked craven and inept.

Some people even believed prosecutors intentionally failed to intervene when the witness against Ramirez lied about the civil suit as a ploy to tank the case. That’s a cynical view, but it’s an example of the no-win situation prosecutors find themselves in when prosecuting police misconduct.
N.b., my testimony on Dutton's bill included this anecdote but this is not in any way a verbatim recitation of what I said, which was shorter, more conversational, and included a discussion of the bill specifics. See the video for my full comments.

RELATED: The Associated Press and KEYE-TV in Austin provided the only MSM coverage of the hearing I saw.


Anonymous said...

Police misconduct should be prosecuted by the top criminal defense attorney in the county with investigative help from the Texas Rangers.

Anonymous said...

Should be an outside organization like the State AG office or special prosecutor. The local guys will be either a rubber stamp for approving the conduct or will be accused of same...either way is not good.

Anonymous said...

Bad idea to involve judges in the process as most of them are former prosecutors who believe there are no corrupt cops.

Equally bad is the idea to have an adjacent county's prosecutor be involved.

But a special unit from the AG's office could be the answer, though I seriously doubt republicans will allow this bill to pass. It's ludicrous to imagine a republican prosecuting a cop for killing a black man. That ain't about to happen, not in Texas anyway.

Laura McElroy said...

Judge was John Onion, not Jack Onion. Jack Onion was John Onion's brother, who passed on many years ago.

Anonymous said...

Police misconduct needs to be prosecuted and JUDGED outside of our current justice system. Obviously, a huge conflict of interest exists for a local prosecutor to investigate and bring charges against a law officer. The prosecutor is "in bed" with the officer, and prosecuting him would be against his own personal interests. The Judges sleep in that same bed; both the prosecutor and the judge look the other way when when an officer perjures himself. Police officers perjure themselves daily, yet are never prosecuted. So why should we expect those who ignore the perjury (misconduct) to prosecute them for other felony conduct?
In a perfect world, we could just not vote for the prosecutors or judges who regularly believe liars.
Police misconduct prosecution requires a backbone, so the locals are out. A small committee of defense lawyers could be trusted to handle police misconduct issues. They know and respect the law.

Anonymous said...

"Everyone is equal under the law...unless you have a badge and a gun or a robe and a gavel...then you are "more equal".
Frank Gordon

Eva Ruth said...

MSM Chron story referenced was actually from the AP. I also covered Villalba's bill under CLEAT pressure as some of your commenters have surmised. ( I'm a big fan, been reading your blog for years. Meant to introduce myself in committee but got too busy. Next time!

Gritsforbreakfast said...

@Laura and Eva, fixed both in the text. Further evidence why newspapers employ copyeditors!

And Eva, thanks for the kind words. Next time introduce yourself.

john said...

wow-great comments. Yup, if there is any real oversight left (e.g., honest, unbiased), that's the way to handle it.
I had a case where trying to get basic & Brady info, HPD immediately cried to the TX AG to protect them from disclosing the facts to me, on MY case.
Everyone with a gov job will do anything to keep it? Conflicts of interest abound; oaths not taken, or at least not honoured.

Anonymous said...

So because the police investigated you and arrested you; and the prosecutor used that information to prosecute you, that means they are automatically "in bed?" Mmmkay. I can understand why such simpleminded generalizations are common among the standard uneducated criminal element; but as for you liberals, I thought that kind of stereotyping was sort of frowned upon.

Lee said...

Fox guarding henhouse

Anonymous said...

Simpleminded generalizations -- I wish that were true. Please go see it for yourself - it does happen daily. Take the time to go and observe a jury trial or a hearing on a motion to suppress -- where there is a constitutional violation issue. Get ready for a sad, disheartening shock. We may be Americans but the Courts and prosecutors don't ever believe you are innocent until proven guilty. Watch the ways they find to sanction the cops Gestapo behavior. Police with discretion to do exactly as they please. That's scary enough, but imagine what can happen when they team up with the prosecutors and judges.
Law officers coached by prosecutors to say the magic words instead of testifying to the actual ents. And the judge going along with it all. Scary but true. Please don't wait until someone you care about is involved. I truly wish you were right about my comments and none of this were true.

Anonymous said...

I have confidence in neither in this state.

Anonymous said...

@3:16, It's typical big government liberalism at the end of the day. The "great unwashed" are simply incapable of governing themselves at the local level. It's all about centralized power with the ruling elite. Be it Washington or Austin, the idea is all the same.

Anonymous said...

This is how it works out when the locals handle it...

Anonymous said...

If one looks at the history of the AG in terms of how supportive of local police they have been, the answer would never include relying on this elected official to bend over backwards in investigating officers. The problem with "special" prosecutors" is that you remove all accountability and it becomes a wild card factor where the process is typically subverted in order to achieve a particular outcome.

Like it or not, the general public that comprises grand and petite juries accept that officers are human. They also accept that mistakes can be made or information misinterpreted by such or even that some folks bring upon their own misfortunes by trying to "play" officers under harrowing circumstances. Much of what some on the far left think of as brutality comes across as "just deserts to some prick that deserved it", I've heard jurors say as much after trials.

I'm not saying that makes those relatively few cases of overstepping the line or blurring the line acceptable but it is understandable so no matter what kind of fix you try to put in to change it, no legislative process will ever eliminate it. And in a state whose current war cry is "local control" unless it involves the state itself losing money such as with fracking in the oil industry, you won't likely see much progress.

To hear a few of you comment, most every cop you've ever met is evil, wicked, mean and nasty; a direct descendant from Nazi Germany, and is specifically out to get you. Given the vast majority of encounters where police are either helpful, rational, or otherwise well within what clear boundaries they are given, you'll be wringing your hands for a very long time to convince the masses otherwise. Those that are either truly bad at their line of work or perform their duties with malicious intent rarely last long but if you believe otherwise, by all means chase the fantasy as far as you like, most in the state will always disagree with the southern California mindset of "the cops are always wrong" (which is not the same as "the cops aren't always right" some of us profess daily).

Anonymous said...

I agree with 4:09AM

Anonymous said...

I agree with 11:45 AM

Anonymous said...

"Should the AG or special prosecutors litigate police misconduct instead of local DAs?"

Nope. Neither. (Why limit the question to only two possible answers?) They both can't be trusted due to being Elected public servant positions where they both are bought & paid for by: deep pocket individuals, groups, associations, unions and PACs.

The job should have been mandatory for the Feds from the very moment we became a State. Not the FBI Field Office, the DOJ up in Washington that would have to fly in and office in a place not connected to any law enforcement to avoid getting too friendly.

Anonymous said...

This is a good bill. And anyone who denies that local politics has way to much influence when allegations are made against law enforcement is way out of touch. Only improvement would be to expand the bill to include open meetings violations and allegations of corruption involving local elected officials.

Joorie Doodie said...

7:07: "...expand the bill to include open meetings violations and allegations of corruption involving local elected officials."

The BIG question is what to do about corruption and criminal acts by local officials (elected or not) in general. Who should investigate? Who should prosecute? The bottom line is that local police and local govt. officials are untouchable in many places. I'd say Texas Rangers investigate and a unit of the A.G.'s office prosecutes. But local Ranger units are often in cahoots with local officials too. Difficult question. I'd say a centralized, isolated unit of the Rangers and prosecutors under the A.G. would make the most sense. Can't depend on that Public Integrity Unit in Austin to do anything of substance!