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.