Carlos Flores and the folly of secret police disciplinary files

At the SA Express-News, Rick Casey has a column following up on an episode discussed here on Grits involving the case of Carlos Flores. Despite having no criminal record, and contrary to his original claims that the officer had assaulted him, Mr. Flores pled no contest to assault on a public servant and later went to prison over probation violations. ("He missed several meetings with his supervision officer, hadn’t paid restitution or completed community service.") However:

What Flores wasn’t told, nor was the DA’s office, was that the Police Department determined that the officer had filed a false report on the Flores case and had violated department policy by not taking the seriously injured man to the hospital before booking him. The officer was suspended for 30 days without pay.

Photographs reportedly showed Flores with a severely beaten face and the officer with only a small mark on his.

Based on this and other evidence, the district attorney’s Conviction Integrity Unit filed a motion to dismiss the charges.

According to the FBI, who interviewed Flores a month before his conviction, this wasn't the only episode in which Officer Belver was alleged to have beaten up suspects.

Casey pointed out a disconnect in open-records and criminal discovery law that Grits has highlighted previously, including in relation to the Flores case. Hundreds of Texas law enforcement agencies operate with their disciplinary files subject to the Public Information Act, including all sheriffs departments except Harris County. But in police departments for 73 or so Texas municipalities, big and small, which have adopted the state civil service code, those files are secret except for brief summaries of episodes for which officers receive the most serious punishments. As with police use of Stingray surveillance equipment, even prosecutors can't see the records.

Clearly there's a structural problem. Information in police disciplinary files often qualifies as impeachment evidence which, under Brady v. Maryland and the Michael Morton Act, Texas prosecutors are obligated to produce. But that's a problem with a (legislative) solution. Since we know that hundreds of cities already operate with police disciplinary files subject to the Public Information Act - Dallas and El Paso are the two largest that never adopted the state civil service code - there's no reason to believe removing that open-records exemption would be harmful or unworkable.

Grits has previously suggested a simple legislative fix to this: "Just eliminate (f) and (g) in Local Government Code 143.089 to open those records to the same extent as at county sheriffs and hundreds of other Texas law enforcement agencies. Or perhaps they should just strike 143.089 altogether. Maybe the state doesn't need to regulate what's in a local department's disciplinary files so long as they're open." Easy peasy.

One also notices, though, that in this case, the officer who attacked Flores was given a 30-day suspension, which should have been long enough, even under the civil-service code, for the police department to be required to release summary information regarding a sustained complaint. So, while it's surely true the police department didn't forward the exculpatory information, it's also clear the DA's office wasn't tracking police-officer misconduct because that decision would have been a public record. Under the new DA, Nico Lahood, Casey reported, the office "has developed a list of officers in the county’s numerous police agencies whose disciplinary records should be disclosed to defense attorneys." So maybe that sort of proactive information gathering is happening now in Bexar County.

Prosecutors definitely should disclose police misconduct to the defense when they know of it, and the Michael Morton Act relieved them of any obligation to determine if the misconduct is material to the case, they simply have to disclose it. But if disciplinary files in civil-service cities were made a public record, as is the case in most law-enforcement agencies across the state, chances would improve greatly in any given instance that defense counsel will get hold of the information even if prosecutors conceal it. Plus, there are numerous other public-interest reasons for disclosing police misconduct beyond compliance with the Michael Morton Act. FWIW, Texas isn't the only state struggling with exactly this issue.