Sunday, November 18, 2007

Texas Worst Court: Cops can hand out dope to create snitches

UPDATE: See more detail on the new rule established by the CCA here.

If court watchers didn't already have enough reasons to disdain the Texas Court of Criminal Appeals, which Texas Monthly famously called "Texas' Worst Court," now they've ruled that it's okay for police officers to distribute drugs to informants in order to convince them to become snitches.

Really? It's come to this? Cops can distribute illegal dope so they can recruit informants to catch people distributing illegal dope? What, exactly, is the point of that?

In what I hope she will make a regular feature, Anjuli Verma lists a bad Texas court decision among "This Week's Top Snitch Scandals" on the new national ACLU's blog about informant abuses:
The San Antonio Express News reported that Texas' highest criminal appeals court issued a decision that, in effect, allows police officers to give illegal drugs — even when the drugs are evidence in a case — to informants for their personal use! In this case, a police officer caught the potential informant with drugs, but before booking the evidence in her case he gave some of the drugs back to her so she could get high. The officer's defense to the tampering-with-evidence charge? "I was trying to create a snitch."
I'd written about this case on Grits when it was at the appellate court level, and I cannot believe the CCA overruled the Fourth Court of Appeals (by a narrow 5-4 margin) to declare that "creating a snitch" is a defense to police evidence tampering. The officer actually thought giving drugs to a snitch was okay, he said, because he'd seen it done on television cop shows. (No, really!)

Here's the problem: Not one Democrat has signed up to run for any of the three Court of Criminal Appeals seats up in 2008, and none of the potential candidates I've heard of panned out. This ignominious court, it appears, will remain entirely uncontested, so the same nine judges will be there after the next election, even if predicted Democratic presidential coattails secure other statewide seats. That would be an enormous waste of an opportunity.

Somebody needs to step up. Three somebodies, actually, with "J.D." after their names. Or this disgraceful bunch will just run the Texas criminal justice system without interruption with the same crappy outcomes for years to come.

* * *

In other CCA-disgrace-related news, the public complaint against Presiding Judge Sharon Keller was ultimately signed by more than 1,600 Texans, and was distributed Friday afternoon to the court and filed with the Judicial Conduct Commission. See:


Anonymous said...

The cops aren't even pretending anymore. They just like doing what they like doing, the pay is steady, and there's nobody who can stop them.

Anonymous said...

Obviously, eating grits induces hysteria. Your "analysis" of this case is so far off base it is incredible. You just don't like the result because the defendant is a narcotics officer. I'm sure if the defendant had been a grits eating, dope smoking, graffiti artist who opposed building more jails, this case would have been justice coming to the rescue. Instead, your knee jerk reaction to pile on the CCA has disengaged your brain. All this opinion says is that the state didn't prove their case--period. The defendant did not have the requisite intent as alleged in the indictment. It does not say "that it's okay for police officers to distribute drugs to informants in order to convince them to become snitches."
In fact, the opinion specifically says: "That does not mean appellant did nothing wrong. At the very least, he appears to have committed the Class B misdemeanor offense of delivery of marihuana. BUT THAT WAS NOT THE OFFENSE HE WAS CHARGED WITH."
It is a fact specific case that probably has zero precendial value.

Gritsforbreakfast said...

I havent' read the opinions, basing my comments on the SA Express News coverage and the ACLU blog. And you're right that this is a rare, pro-defendant ruling for the CCA, 10:17, so like most pro-defense ruling by that court it wouldn't surprise me if you're correct that, for that reason, they later give it little precedential value.

So what? That doesn't change the fact that they ruled the officer couldn't be held responsible. Who else but a police officer gets cut slack for lack of "intent" by this court because they were ignorant of the law? If they extended the same courtesy to average defendants, I might feel differently, but as you imply, this is an extreme rarity, further evidence that this court writes opinions based on the politics of the case, not the facts, which is my overall complaint about the CCA - they consistently demonstrate an extremist anti-defendant judicial activism, except when the defendant is somebody with whom they sympathize.

Anonymous said...

Maybe you should read the darn opinion before you start pontificating.

Noone said anything about ignorance of the law. If you would read the opinion, you would see that the officer gave the the lady a small bit of her dope back. The reason that matters is that his actions did not change the level of offense they could charge her with--ex. if the offense is Poss. of Marij. less than 2 oz. and if she had 1.5 oz and he gave her .5 oz back, there was still 1 oz left over in evidence--it's still a class B misdm. either way. And, he self reported what he did to his superior. Those 2 things make it hard to say he had the requisite intent to commit the offense.

You are the one who is advocating judicial activism in the worst way. You don't like the outcome because of who the defendant is--you want the outcome to be a certain way and want the court to disregard the legal analysis to get there. Your pathological hatred of one of the judges has led you to tar everyone of them with the same brush and apparently disengage your brain.

I say the case has little precedential value because it is so fact specific; an analagous situation is not likely to re-occur, not because of the identity of the defendant. In fact, the opinion specifically says--you charged him with the wrong offense, not that he can't be held responsible for what he did.

Gritsforbreakfast said...

You said the court ruled the officer did not have the "requisite intent" to commit the crime, which means he didn't know it was against the law. He was ignorant of the law, and you and the CCA majority think that should be an excuse. But for him alone, apparently, not in any way that would grant precedential value. Well, how convenient!

I'm not advocating for a specific outcome because of who the defendant is, I'm asking for consistency, pointing out that such a generous result is reserved only for a certain class of defendants for whom the court has some particular sympathy, not for everyday cases. They ruled pretty positively, e.g., when Tom DeLay was the defendant, too. It's not just police, it's whoever they like, whatever class of folks the judges view favorably. Every decision is a damn popularity contest.

Bottom line: Cop hands out drugs to snitch. Cop is prosecuted, convicted, sentenced. An appeals court upheld, then the CCA goes out of its way to give the guy special treatment, precisely because of who he is. Nobody thinks, in retrospect, that he didn't do the wrong thing, only that he didn't have the "intent" to commit a crime. For him, in this case, ignorance of the law IS an excuse - well, isn't that special?

I'll go read the opinions when I have time, though I see nothing wrong with commenting on a news article in a blog post. But if as you say the issue is whether the officer had the "requisite intent" to commit a crime, then this is a rare pro-defense opinion, indeed. best,

Anonymous said...

"You said the court ruled the officer did not have the "requisite intent" to commit the crime, which means he didn't know it was against the law."

That is not what that means.

Anonymous said...

Here is my analysis-

1. Pot should be legal. Cops shouldn't arrest anyone for pot.
2. Creating a snitch is not an affirmative defense to evidence tampering. COCA knew what they wanted the verdict to be, they just couldn't find a justification.
3. In the opinion, COCA spends a lot of time discussing the requisite mental state. This is merely posturing to justify acquitting this officer. COCA would never reach so far to free a non police defendant.

While I'm glad to see an innocent person freed, I'm disturbed that police conduct gets a pass while we destroy constitutional protections for non law enforcement defendants.

Anonymous said...

"I'm disturbed that police conduct gets a pass"

The opinion does not say the officer gets a pass. It says they charged him with the wrong offense.

Gritsforbreakfast said...

Well don't keep a secret, tell us what it means!

That's what the cop said. He thought it was legal. Because he saw it on TV.

Anonymous said...

I think all three of you (assuming anonymous is the same person -- Kevin, is that you?) are missing the point.

There is a long standing rule applied by both civil and criminal appellate courts that the jury is the final decider/arbiter of facts. They can believe a witness or they can refuse to believe him. In this case, the jury clearly did not believe the defendant witness' excuse or explanation. So they found him guilty as charged.

Generally, courts will not disturb a verdict which is clearly based upon the jury's lack of credibility of a witness. Courts have discussed that rule in terms of the jury being right there, sometimes only 20 feet or so from the testifying witness, watching his expressions and listening to his voice. Demeanor "testimony" is what courts have called this, and they have ALWAYS deferred to a jury's decision against the credibility of a witness.

Until now, as this all Republican, lawn order, pro-law enforcement biased CCA tosses those rules -- and the unimpeachable reasoning which underlie those rules -- into the toilet.

This all-knowing, all-seeing Court, without the benefit of having seen or heard the witness, just takes it upon their omniscient selves to decide that cop told the truth. What did they base this on? Not facts. They were not present at trial. They based it upon a bias in favor of law enforcement and against people who use drugs.

In short, the CCA cheated.

And for Mr. Anonymous, in case you don't know it, there is a strong anti-defendant bias on the CCA. The recent behavior of Judge Keller is the most well known. Not so well known, perhaps, is a comment by Judge Womack during one of his campaigns for the Court, that he intended to make it just as hard as possible (or language to the effect) for criminal defendants. I'm not a close CCA election campaign follower, so I'm not familiar with what other members of the Court have said along these lines. Maybe someone else can fill us in.

But whatever the judges have said that indicates pro-prosecution bias, it is what they do that counts. And if you've kept up with reading your advance sheets, Anonymous, you will have to admit that over the long haul, this has been a CCA that is unabashedly anti-defendant.

What is surprising is that there were four judges who did not want the CCA to go in this direction. We should be thankful for such small blessings.

Here is the ironic kicker to come. When the tide turns, and there are again liberals and moderates on the CCA, they will have this opinion by some authoritatian, right wing Republicans to cite as authority for reversing jury verdicts. I hope to live to see it.

Now, if you guys will excuse me, I'm going over to the TDCAA blog and see what kind of comments Mr. Edmonds is letting through the gate.

Anonymous said...

Cops that use snitches and the snitch himself are worthless pieces of sh*t! They're a menace to society. I would have no sorrow what so ever if both were taken off this planet one way or another.

Anonymous said...


Great insight. You need a blog. Or just post brilliant comments on mine so I can increase my readership.


Anonymous said...

You know, this is an old blog but i'll say this much: I am a born and raised Texas native and a member of the "good ole' boy clan". My father was a cop and i've know many cops in my life. What Anonymous and some of the others are failing to see is that "Bubba Justice" doesn't work the way the law does in most of the rest of the country. Texas law enforcement has always been known to favor the law-enforcement community. The dirty rat-bastard trash cops will cover each other's backs like a momma sow protects her piglets. Anonymous, you seem to fail to incorporate the "Bubba Justice" element into your rantings. There is so much crap here that cops get away with it is pathetic. In Texas, it's about the contacts you have in the judicial system. I will be the first to admit that I have been given leniency for my acts because I am the son of a 20 year veteran of the police force. In this state, the Halls of Justice are painted green. Every one of them...