Friday, February 10, 2017

Transparency bill will please prosecutors, police accountability advocates ... unions, not so much

With SB 783, State Sen. Juan "Chuy" Hinojosa has filed a rare example of legislation which should make police accountability activists and Texas prosecutors equally happy. The catch: Police unions will react as though their hair is on fire.

Can't please everybody, I suppose.

Disparate transparency
Hinojosa's bill addresses a 30-year old loophole created by the then-Democratic-controlled Lege to make police disciplinary files secret records in the 70 or so cities which have adopted the state civil service code (Ch. 143 of the Local Government Code). In the other 2,500+ Texas law enforcement agencies, those records are governed by the Texas Public Information Act and virtually the entire file is a public record, with a handful of exceptions involving personal privacy and other statutory limits.

In civil service cities, the personnel file always remains closed and the public can only see summaries of the underlying misconduct in cases where the officer is fired or suspended from work. Under the public information act, the overwhelming majority of documents in that file are public records.

This leads to an odd situation where, for example, police misconduct at the Austin PD must be concealed from the public if the officer is given a warning, reassignment, or any punishment less than a suspension. By contrast, at the Travis County Sheriff's office down the street, if a deputy engaged in the exact same misconduct, their file and the results of the investigation would all be a public record.

Similarly, Dallas and El Paso are the two largest cities which have not adopted the civil service code, and the public in both of these cities gets greater transparency about misconduct at their police departments than do nearby towns where police operate under civil service. In Dallas, this creates a situation where the largest city in the county is fully transparent about police misconduct, generating far superior reporting about the agency by the local press, while in most of the smaller suburban jurisdictions that surround it, most information about police misconduct is kept secret.

Making prosecutors happy
It's easy to understand why police accountability activists want these files open. Why would prosecutors be happy about it? To answer that question, one must recall the passage of the Michael Morton Act by the Texas Legislature in 2013, which strengthened requirements that prosecutors disclose exculpatory, mitigating, and impeachment evidence beyond minimalist requirements in federal precedents under Brady v. Maryland.

Under the Michael Morton Act, prosecutors are responsible for providing the defense with impeachment evidence about their witnesses, including police officers. But prosecutors aren't allowed access to police personnel files any more than are open records requestors under the civil service law. So situations have arisen where prosecutors are held responsible for failing to turn over impeachment evidence which was in possession of the police department but concealed from them by statute. It's considered an act of prosecutorial misconduct to fail to turn over impeachment evidence under the Michael Morton Act, so the secret personnel files put prosecutors between a rock and a hard place.

Perhaps the poster child case for this phenomenon was the Carlos Flores case in San Antonio. Flores pled no contest to assaulting a police officer. But it turned out the officer had beaten Flores severely and then charged his victim with assault. SAPD knew about the incident but did not inform prosecutors that the charges against Flores were a lie. An innocent man was convicted, and later exonerated. (Kudos to the Bexar DA Conviction Integrity Unit for taking a second look at the case.) No prosecutor wants to be blamed by the courts or the media for not turning over information to which they by law don't have access.

Expect nuclear response from police unions 
While prosecutors and police-accountability advocates can commiserate over this feel-good bill, one may expect police unions to react as though the coastal-based senator had suggested chunking babies into the sea. As they're doing in their pension fights, police unions will invoke the officers killed in Dallas and other in-the-line-of-duty deaths and pretend that somehow their sacrifice merits keeping the public in the dark about bad cops. With prosecutors on the other side of the issue, though, that case will be more difficult to make.

To understand this reaction, it's helpful to know a little about the nature of Texas police unions. Texas is a right-to-work state and unions are weak here. To the extent that police unions wield more power than most, it's because their primary function - over and above collective bargaining, which most Texas cities don't have - is essentially to provide Misconduct Insurance to their officers, promising to deploy a phalanx of experienced, hyper-aggressive attorneys and advocates to defend bad cops when they screw up. That's the main thing union dues pay for: When an officer gets in trouble, they may count on a level of legal assistance most criminal defendants couldn't dream of having.

So keeping police from being held accountable for misconduct is a primary police union function, and that includes keeping sustained misconduct out of the public record in case the officer ever wants to change jobs and apply to another department.

In reality, the other 2,500+ Texas law enforcement agencies which for generations have operated under the Public Information Act face no significant problems as a result, so the arguments for keeping these records secret are weak and self serving. That doesn't mean they won't be loud and overheated. Tis the nature of these sorts of debates.


Anonymous said...

While I'm in agreement overall, the notion that the appointed counsel of all officers is "a phalanx of experienced, hyper-aggressive attorneys and advocates" and that their mission is "to defend bad cops when they screw up", seems a big stretch of the imagination. In my experience, their lawyers are not particularly aggressive, many of them start out with minimal experience, and they are appointed to insure the rights of the accused officer are protected. Such lawyers are a far cry from the best our state has to offer because the police organizations do not pay enough to hire the best, but they are generally competent in their limited fields of expertise, much like public defenders are for their clients down here.

Are such lawyers required to defend officers that might have truly screwed up, engaged in conduct well outside posted job duties, or even gone so far as committed criminal acts? Well, sure but we don't withhold legal assistance based on supposed guilt in any other case, do we? The major police departments in the state often refuse to defend members that were clearly engaged in criminal conduct or outside the scope of their employment too, forcing the officers to hire representatives independently, but overall, more transparency in disciplinary records is reasonable in the defense of another that is accused, if not fishing expeditions.

Gritsforbreakfast said...

No one suggested "withholding legal assistance," 8:10, only opening up disciplinary records to the same extent as is already the case at more than 2,500 law enforcement agencies.

As for whether unions are aggressive defending officer misconduct, we'll have to agree to disagree. While I have no first-hand experience countering them in the courtroom, a long history of overturned disciplinary actions, combined with union attacks on municipal pols, city managers and other decision makers when their officers are punished, to me belies the not-aggressive claim.

Anonymous said...

Grits, I think he was taking exception to your inclusion of the word "hyper" in how aggressive they are. Having represented a municipality some time ago, we would deal with the same lawyers all the time. Because of this, we developed a rapport that included some openness regarding how strong our mutual cases were which saved a great deal of time and expense. The statewide representatives were not particularly aggressive either, all the stories of aggressiveness I've heard of came from big city unions. A good friend pointed out that they tend to be aggressive because the cities use the disciplinary process as a crude stick, punishment overturned or greatly reduced most of the time because those departments tend not to invest the resources in making solid cases. They are also more likely to have police chiefs that use discipline too often knowing it will be overturned, no sanctions provided for bringing such claims to an arbitrator or court. If you are basing the aggressiveness on quantity of overturned actions, it makes sense to provide the context of how many cases were not challenged at all, hence the fight by some groups to allow more open access to records.

john said...


Even a simple traffic stop or other, the cops will claim they can't answer simple training questions about an officer. They will directly when to the A.G., who will side with them. THERE HAS BEEN NO OPENNESS, NO DISCLOSURES.
The Cops should have to PROVE they were trained, and IF poorly commanded, let that come out, as well. THEY HAVE JOB REQUIREMENTS.

THIS IS NO LONGER JUST ABOUT "NOT BEATING THE RIDE." This COPS' WAR ON AMERICA needs to stop, if there's ever to be a chance of returning to Constitutional rule of law. (I know, who in power wants THAT?!)

Anonymous said...

Mr. John, please calm down and take a breath. Your writing is incomprehensible as displayed, and you are probably frothing at the mouth given the abundant use of capital letters.

@8:10: You've summed up a very credible account of things but left out why they fight transparency issues so strongly. In my experience, it has to do with the desire of lawyers to attack from any angle and amplify any doubts a juror might have in a case. If they could show a working officer's complete disciplinary history, not just where guilt was found but any accusations at all no matter how petty, it could be used to cast doubt on their testimony under the guise of "where there's smoke, there's fire".

@Grits: Labels like that exist in a continuum so neither of you will likely agree as to what constitutes "aggressive" lawyering but @12:18 raises a valid point about putting it in context. I think those covered by such statutes as you refer have very real reasons for fighting disciplinary cases much of the time, at least based on over 40 years of real world experience. They don't win their cases so often without there being ample reason, one of my mentors was a well known arbitrator who had many examples of why agencies lost cases so regularly.

@12:18: That is similar to my experiences too but a happy middle ground could be found to provide better transparency and accountability.

Anonymous said...

I've represented officers who have faced false charges, which is expected when dealing with folks looking to skate on charges filed. Publishing false charges will only increase the likelyhood such charges will be threatened and filed, to intimidate the officers and the department. If the law includes severe punishment for those filing false charges, with a committment to investigate and pursue prosecution, officers and their unions might accept.

Anonymous said...

Anonymous 2/13/2017 10:48:00 AM, good luck with that ever happening. An increasing number of defense lawyers take the approach that a good offense equates to a better defense, doing anything imaginable to cast the slightest doubt on an officer or witness to get their client out of trouble.