Friday, April 21, 2017

Killing suspect shouldn't justify secrecy about police actions

At the Statesman, Eric Dexheimer has a story on a young man repeatedly tazed by police while he was high on LSD - including a sustained zap to the crotch, at one point in the video - but because the boy died and so was never convicted of anything, the family couldn't access any information about the case under the Public Information Act.

Dexheimer offered this little-recalled history of how these records - which would have been open a quarter century ago in Texas - became closed:
At one time, most police records in Texas were considered open to public inspection. Between the writing of the state’s open records act, in 1973, and the mid-1990s, the attorney general issued a string of opinions concluding that, except for an ongoing prosecution in which releasing details might compromise a case, most law enforcement documents were considered public. 
In 1994, however, the Harris County district attorney’s office sued the state to keep private its closed investigative files. In 1996 the Texas Supreme Court agreed with the prosecutors. 
With the status of the law murky, in 1997 Texas lawmakers wrote a new statute. It specifically excluded from public view “information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication.” One stated reason was citizen privacy. 
“If there is an investigation about potential criminal wrong-doing and the decision is made that no charges will be filed, the person has some privacy right not to be characterized as a person under investigation,” explained James Hemphill, an Austin lawyer with the firm of Graves Dougherty who represents the American-Statesman on media law and open-records issues. 
Another reason was simply “to try to withhold as many records as possible,” said Joe Larsen, a Houston open records attorney. Added Laura Prather, an Austin attorney who specializes in First Amendment protections: “Law enforcement has a very powerful lobby.” 
Since then, the clause has been used to summarily deny police and prosecution closed-case records from reporters and attorneys. Yet it has also thwarted families such as the Dyers seeking information and, occasionally, legal recourse. 
In March Rep. Joe Moody, D-El Paso, filed a bill to compel release of police records if, like Graham, the suspect had died; or, even if not, gave his consent to their release. “The intent of the law was to not interfere with a pending investigation,” said Prather, who promoted the measure for the Freedom of Information Foundation of Texas. “It doesn’t apply if the suspect is dead.. 
Moody, a former prosecutor, said he was persuaded to change the law simply because government records should be considered open to public scrutiny unless there is a compelling reason to withhold them. With police reports of deceased subjects, “I don’t see the interest it serves by withholding that,” he said.
Grits has written about these issues many times. In 1996-97, Texas went from having one of the very best open records laws regarding law enforcement to one of the worst.

Moody's legislation is a good start, but at some point the Lege needs to revisit these broader open records issues surrounding law enforcement. Cases where there is no conviction are exactly the ones where you most need open records - cases may be dismissed or never filed because of misconduct or error, for example, that can never be discovered while the records are secret.

A big reason why the law passed in 1997 was so bad is that, at the time, there was quite literally no active criminal justice reform movement in Texas aimed at the state legislative process and there were no interests at the table to counter law enforcement's desire for maximal secrecy. Indeed, the reason Grits first began making the trek to the capitol was my horror that that bill had passed with no substantive opposition.  That would not be the case today, so perhaps it'd be a good time to revisit these important questions now that the citizenry is more engaged on these topics.


Anonymous said...

Secrecy about cruelty by guards inside TDCJ is another topic that needs to be discussed. Guards make sure that the shackles are so tight leave arms and legs bruised and bleeding for months----thus ensuring inmates have little desire to go to the Galveston hospital for treatment---especially when the papers somehow keep getting lost and the inmates get ferried back and forth without getting their illnesses treated---thus enabling the guards to avoid the long bus rides they want to avoid performing. Many tricks to keep inmates from requesting treatment at Galveston.

Anonymous said...

Just the story I've been waiting to read about for the last two years when I first started reading the good Grits' website. To fully appreciate what this reporter has stumbled into you can't look at cases where the suspect died because those records will never be released without a risky and expensive civil lawsuit. You also can't look at cases where police shot someone who died and the officer was convicted of doing so wrongfully because that never happens in Texas!

Instead you have to look at cases where the suspect was shot but not killed but was later convicted of a crime. Good luck finding those cases because half of people shot are killed. 1/3 suffer from some mental episode. Now we're down to 17% of cases. These get swept under the rug because reporters like to report that "the Texas Rangers are investigating an officer involved shooting" which always results in a grand jury no billing the officers, which is typically the second and final act of journalism in the case and no one goes looking into what actually happened.

That is until people like me--ordinary citizens start mastering open records law and weed through a case to discover that, by golly come to find out the Texas Rangers don't really investigate fellow officers, not in any standardized, repeatable and reportable process. No, that's not on the agenda due to the code of silence.

Conclusions of this type only come from looking at cases with suspects who survive and are subsequently convicted. These are the cases actual journalists could focus to expose the abuses of power of the century. Good luck finding them. Know why? Because officers don't shoot to disable. They shoot to kill. Suspect shot 17 times. Suspect shot 23 times. Suspect shot 9 times. Know why? If the suspect survives and is convicted the wrongful shooting could be exposed!

Anyway, if anyone is interested, I've got said test case and it isn't pretty. It is now the subject of a pending Habeas cause which exposed deliberate destruction of evidence...confirmed by the DA & video logs. It is a doozy.

Anonymous said...

"Those who make peaceful revolution impossible will make violent revolution inevitable." - John Fitzgerald Kennedy

Marvin Doupel said...

I firmly believe that all the cases must be made public, specially the unresolved ones, as happened in the case mentioned, the chance of victims getting justice, which is their undeniable right, would be impossible. Moreover, I fail to understand why these must not be brought into public domain? I think a big reform is needed where details of every such case must be available online.

Ray Hill said...

I visited Chairman Moody's office Thursday and was pleased to find his staff open and direct in his support of several legislative actions that would be helpful toward a new level of disclosure. Not since Jerry Madden was chair of the Corrections Committee have I been so pleased with the potential for improvement.

Wise Texan said...

To Anonymous @ 4/21 10:29, I couldn't agree more. Not only the physical cruelty but the mental abuse as well. Mental health treatment is also a complete joke in TDCJ and in my experience, physicians often accuse inmates of faking, even if their diagnosis came from a free world psychiatrist. Inmates and families have no recourse and requesting MRIS is pretty much a waste of time since it's rarely approved (6% of the time, last I checked).

United States Police Hub said...

The police and now the DOJ have zero incentive to stop their hostile and violent protocols against people of color. The police in America forever have operated under the state of Negrophobia ..

Now with Sessions as AG and his public statement to abandon the oversight of the police Black Americans and others are in peril