Friday, July 31, 2009

DPS commander coached law-enforcement witnesses, says 5th Circuit opinion

In an opinion (pdf) issued Wednesday, the Fifth Circuit Court of Appeals upheld a lower court's ruling that the DPS Commander in charge of the department's Training Academy improperly coached Harris County Sheriff's deputies before their depositions in a Sec. 1983 civil rights suit. The ruling came in the same case that took down Harris County District Attorney Chuck Rosenthal after he deleted subpoenaed emails and ultimately resigned in disgrace. In this new decision, the Fifth Circuit ruled on findings of misconduct against three state's attorneys.

The court partially sustained sanctions against two assistant county attorneys (who were defending two Sheriff's deputies), dismissed them against Harris County ADA Scott Durfee (who represented Chuck Rosenthal), and of course there's no legal penalty at all for the DPS Commander who allegedly coached witnesses and may have given "false testimony," according to the opinion.

Looking closely at the details of the ruling, we find the court actually reached no conclusion about whether assistant county attorneys Mary Baker and Frank Sanders gave false testimony, instead vacating that part of the lower court's ruling because, in the order, the district judge listed the wrong date when their alleged false testimony occurred. According to the opinion:
Insofar as the district court found that Baker and Sanders gave false testimony during the November 29, 2004, hearing, the finding is clearly erroneous. Baker and Sanders did not testify until January 2005.
Regarding whether DPS Commander Albert Rodriguez or other officers gave "false testimony," the Fifth Circuit offered no opinion but merely vacated the lower court's ruling without elaboration on the grounds that it relied on a "legal standard too permissive of sanctions." What was wrong with the lower court's standard for sanctions? What standard should have been used? Quien sabe? The opinion is silent on these matters.

Despite that officer-friendly decision, the appellate court affirmed the finding about witness coaching which centered on allegations Commander Rodriguez was paid to instruct deputies how to alter and frame their testimony to support a pre-manufactured defense theory.

Deputy Preston Foose "denied that Rodriguez advised him how to testify at the deposition other than to tell the truth," noted the opinion, which then concluded that "Events that occurred the next day suggest otherwise." The deputy showed up at his deposition with detailed notes that mirrored a memo Rodriguez prepared for the defense and included key details Foose never mentioned before.

Though calling the evidence somewhat "scant," the Fifth Circuit upheld the lower court's findings that the deputy appeared to have been coached, exhibiting a “predisposition to recollect facts that support the defense’s theory ... while denying recollection of other key or contradictory evidence.” Ouch!

All this leads to several, obligatory followup questions: Will the state bar sanction Baker and Sanders for causing their witnesses to be coached in this fashion? And what if any sanction will they receive from their employer, the elected County Attorney?

What about Deputy Foose, who allegedly embellished his testimony after meeting with Commander Rodriquez? One wonders what if any disciplinary action was taken against him after the district court found his testimony unreliable? Is this fellow still testifying in court on behalf of the department?

For that matter, what about Commander Albert Rodriguez, who runs the friggin' DPS Training Academy? It was Rodriguez who actually did the alleged "coaching" of witnesses, after all.

Given the circumstances, it's unclear whether or how Commander Rodriguez might ever be held accountable. He's still testifying as an expert witness in other cases around the state though he played a central role in the actions for which these attorneys were sanctioned. Presumably he was off the clock when this happened, so he'll face no discipline on the job. Even if he did improperly coach witnesses, he walks away from the whole thing relatively unscathed.

Perhaps it's a bit snarky to say so, but one hopes this episode doesn't reflect what the DPS Training Academy teaches rookie troopers these days about testifying in court.

Meanwhile, the folks over at TDCAA are particularly happy that ADA Scott Durfee was cleared of wrongdoing. The appellate court notes that Durfee was himself only informed of Rosenthal's notorious email deletions at the end of the day before the Thanksgiving break, ordered a subordinate in IT to work over the holiday to retrieve the deleted emails, then informed opposing counsel on the next business day when the IT person couldn't find them. The Fifth Circuit placed blame for this episode entirely on Rosenthal and said Durfee did not improperly delay revealing his boss' misconduct. That seems like a reasonable conclusion, distinguishing outright misconduct from happenstance or error.

So it sounds like the Fifth Circuit got it right on Durfee's case, but I remain dissatisfied by the ambiguous resolution to the whole witness coaching episode.


Anonymous said...

Don't be disappointed, in New York, the D.A. and his witnesses USUALLY sit down with the Judge and the Judge coaches the witness on what he will, and will not, want to hear while the witness is on the stand.

So many "Secret" meetings occurred between CPS, CASA and LE during the YZF children's kidnapping case that she needed a revolving door on her chambers.

I can't wait for the men's trials,
she'll probably need to hand out numbers for the coaching sessions.

Bill Medvecky

Anonymous said...

Can any of his testimony as an expert witness be impeached based upon this ruling?

Multi Squash said...

Thanks for this story.

Anonymous said...

I meant to ask if any future testimony in any case could be impeached?

Anonymous said...


Your article misstates the ruling. Whether Albert Rodriguez gave false testimony or coached witnesses was not an issue in the appeal.

The issue was whether the two attorneys committed attorney misconduct. The appeals court found that the police officers were coached improperly as to two phrases - retaliation and high-crime area. They found that the attorneys did not condone false testimony and vacated the sanctions.

Whether Rodriguez gave false testimony was not an issue before the court, and they did not rule on whether the testimony was in fact false.

I personally know Albert Rodriguez and he is an honorable man. If you are right, he'll back you. If you are wrong, he'll testify against you. Ask the officers in Irving he testified against.

Your hatred of police is apparent. Maybe the fact that Mike Sheffield outsmarted you on the review board in Austin still smarts, or maybe you got a ticket, I don't know. But your constant attacks on police are wrong.

Gritsforbreakfast said...

Read the opinion for yourself, 9:40. Rodriguez is the person who did the alleged witness "coaching" that the attorneys were sanctioned for. I didn't misstate a thing. It's in the ruling.

I agree the 5th Circuit didn't rule on whether Rodriquez's testimony was false (I never said otherwise), though the district judge believed that it was. Here's a direct quote from the opinion: "Rodriguez’s false testimony, the court found, concerned his purpose for meeting with Foose, Rocha, and Shattuck on the eve of their depositions."

What's more, the 5th DID sustain the sanction for witness coaching, and Rodriguez's actions were central to that allegation.

Finally, I provided the link so readers can see for themselves whether I've mischaracterized the opinion. Just saying I'm "wrong" with no specifics doesn't make it true when the plain text of the ruling contradicts you.

Anonymous said...

I can't help but disagree with last couple of comments by Anonymous (9:40 pm).

Police deserve greater scrutiny and accountability -- they carry guns, may use lethal force, and have arrest powers that can dramatically change your life and mine. Calling them on issues that reflect basic legal and constitutional concerns is not an attack on police. It is part the dialog that makes a free society free.

While those offering the criticism should strive to be as fair and informed as possible, whether police offices feel that the criticism is fair and informed is largely irrelevant. The most important issue is how the public view what the police have done and feel about their actions.

The meaning of policing in a free society is determined one interaction and response at a time as individual patrol officers deal with each call for service. If a substantial proportion of those interactions with citizens are perceived as demonstrating uncaring attitudes, reactive response, excessive force, demeaning, racist views, poor judgement, misuse of authority, unethical practice, immoral actions, or criminal conduct the police (or at least some officers) have become another street gang wearing blue colors.

Openness to criticism -- is often difficult for police officers and agencies to hear but it is at the heart of a mutually respectful relationship between police and the community. This blog and its readers are dedicated to equitable justice, honest policy formation, public accountability, and open discussion of complex justice related issues -- all of which can be a bit unconfortable for criminal justice officials at any level. They need to be less sensitive and more focused on understanding the nature of the criticism, considering how they might work more effectively with the community, and implementing changes in policy and training.

Hook Em Horns said...

What else is new?

Anonymous said...

Anon 10:24,

How dare you question the conduct of the police! You are hereby charged with Disorderly Conduct.

Signed/James Crowley (467) :~)

Anonymous said...

What a great post from 10:24!

R. Shackleford said...

Police need to be held to an EVEN HIGHER standard then the citizens they police. Why does that even need to be said? Who wouldn't advocate constant monitoring of the people we empower to deprive us of our freedoms and even our very lives? It disturbs me that there is ever a question about leo ethics (and there's ALWAYS a question, these days), this is not how a police by consent society ought to be run. If you can't rely on ethical conduct by an officer of the law, then that person should not be accorded the privilege of enforcing the law. Period.

Hook Em Horns said...

Police held to a standard? Please! You cannot fire them, you cannot discipline them. They are an entity unto themselves. A very dangerous entity.

We really have no idea what these "people" get away with in the performance of there "duties".

Anonymous said...

Get over it, Boyness.

Don Dickson said...

Boyness, take this from a police labor lawyer....police officers get fired all the time. Often enough in just one department to pay my rent and all my bills.

Hook Em Horns said...

Don Dickson said...

Boyness, take this from a police labor lawyer....police officers get fired all the time. Often enough in just one department to pay my rent and all my bills.

8/04/2009 10:30:00 AM
Wow Don you must really see the REAL bad apples. I have law enforcement connections who have described the due process for firing cops as heavily favoring the officers.

Don Dickson said...

Well, the locals have it a lot better than the state police do. At DPS, for example, your "due process" consists of a two-hour hearing before the Public Safety Commission, after which the person who fired you eats lunch with the commissioners behind closed doors.

Anonymous said...

This constant advocation for anarchy is disgusting. Welcome to the USA, the land of irresponsibility. "It's not my fault" is the new motto.