Austin PD withheld Brady material, administrators contradict each other on infiltration of Occupy movement

Austin police administrators gave contradictory statements to Austin Chronicle reporter Jordan Smith about their use of three undercover operatives (or, perhaps, provocateurs) who infiltrated the Occupy Austin organization.

Police detective Shannon Dowell built a "lockbox" device for use at a Houston sit-in, the use of which upped criminal charges against the protesters from a misdemeanor to a felony. Reported Smith, such a "device usually must be cut off, posing risk to the user and, potentially, to the police or firefighters doing the cutting, if booby traps are employed inside the pipe." Further, "It was those concerns about safety, says APD Assistant Chief Sean Mannix, that prompted APD detective Shannon Dowell to get involved last December in constructing a series of lockboxes that the seven protesters were arrested for using at the Port of Houston."

So according to Mannix, the officer's actions were part and parcel of the intent of the operation to promote the safety of protesters and law enforcement. However, Austin police chief Art Acevedo told Smith that the undercover activities "went beyond the scope of the mission ... that was established at the executive level." "The trouble wasn't coming from the 'core Occupiers,'" says Acevedo, ignoring that the trouble was coming in part from APD's own officers. The chief told Smith that "'we are reviewing the matter, from top to bottom,' ... to see where the mission might have gone astray, in order to keep anything like that from happening in the future."

Which is right? Mannix's comments imply the officers were doing exactly what they were put there for, while if Acevedo is correct, it speaks to gross failures in management and oversight.

Regardless, the claim that the purpose of the undercovers was to protect the First Amendment rights of protesters is outright Orwellian. What a low opinion of public intelligence they must have to imagine anyone is stupid enough to believe such a disingenuous comment! (Sadly, the low opinion is probably justified. After all, the MSM keeps repeating the claim.)

Then there's APD's blatant recalcitrance when ordered to submit records for judicial oversight. Reported Smith:

Based on the transcripts of an Aug. 27 hearing in Campbell's court, the judge has not readily embraced the APD's official story. Dowell was subpoenaed by Gladden to attend the pretrial hearing, and to bring with him all written and electronic records – police reports, text messages, emails, pictures, and notes – related to his Occupy assignment. But Dowell showed up, essentially, empty-handed. He had photos on a thumb drive of the boxes and the woman he delivered them to, he testified, but he somehow lost that drive on the way to court; he had emails on a work computer (and, it seems, on a personal computer as well) and phone messages, but said he had deleted them. He brought with him only "a little note that I made here regarding [an Occupy] meeting," he said. There are no written police reports, he said; since there was no criminal investigation ongoing, there was no reason to write an official report for the APD system, he testified. Judge Campbell did not seem impressed: "When he is sent a subpoena and he doesn't respond and he doesn't come with his own attorney," she said, "I think they lose a little bit of the dignity that they should be carrying themselves with."

At the end of last week's hearing, she told prosecutor Joshua Phanco that the state must produce the names of Dowell's undercover APD cohorts or see the case dismissed. The two other officers are fact witnesses who could help determine whether the police induced the activists' use of the lockboxes. On Wednesday, those names were provided to the court for the judge's private inspection. Also provided were documents related to the APD's undercover mission, though court watchers said that some of those documents were redacted – which did not appear to make Campbell happy. A motion was also filed to quash the subpoenas for the APD's undercover officers, including Dowell, to appear in court, though the judge has not yet ruled on that request. Campbell has again reset the hearing, for Sept. 25, in order to give her time to review all of the relevant documents.

This "dog ate my homework" excuse is simply not credible. KTRK-TV reported that, in court, "APD dodged most questions Wednesday" at the latest hearing, where according to the Houston Chronicle, "State District Judge Joan Campbell lectured prosecutors ... about not disclosing the police officers' roles in the case." However, according to the Houston Chronicle:

prosecutors told the judge they had no idea the Austin Police Department evidently planted an officer in the movement, until defense attorneys subpoenaed him.

"Had we realized that an undercover officer was involved" and had participated in the construction of the dragon sleeves, "that is clearly Brady material," Harris County prosecutor Colleen Barnett said in an interview after the hearing. "Had we known that, we would have turned it over to the defense."

"Brady material" is exculpatory evidence that's required by law to be handed over to defendants. Police failing to hand that information over to prosecutors - much less destroying it, as Dowell may have done - is a bigger deal, even than the alleged entrapment. Given that, I find bewildering the statement from Assistant Chief David Carter to the Austin Statesman that "Nothing officials have seen initially indicates department policies were violated." Is there not a policy in the department to turn over Brady material to prosecutors?

As Grits mentioned previously, I've little sympathy nor patience with the Occupy protesters' methods - which I earlier called "dumb as a bag of hair" - and in most cases I think anyone foolish and narcissistic enough to intentionally get themselves arrested at such an event deserves what they get. But here the police sought not to deter crime but to worsen it, facilitating felonious actions instead of thwarting them, and withheld exculpatory evidence from prosecutors. Combine that with the contradictory justifications from APD administrators - disavowing their officers' activities while simultaneously justifying them - not to mention the evasive refusal to provide documentation to the judge, and it's difficult not to find understated the judge's observation that, at the very least, the episode caused the department to "lose a little bit of the dignity that they should be carrying themselves with."