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