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April 16, 2010
TEXAS COURT OF CRIMINAL APPEALS STRIKES BALANCE FOR RULE OF LAW
Wilson v. State; Court Reverses Conviction Obtained After Finding Investigator Used False Fingerprint Lab Report to Obtain Confession
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
It was New Year’s Day, 2006. Ronald Wilson called 911 to report he had discovered a man’s body on a San Antonio street while walking with his son. The police responded to the call and found the body of Amos Gutierrez who had been killed with a single fatal gunshot. The police also found a magazine clip near Gutierrez’s body. The investigation into Gutierrez’s death quickly revealed information implicating Wilson in the crime. He was arrested on misdemeanor charges. 1/
A San Antonio police detective named Roberts was assigned to the case. One of his preliminary tasks was to interrogate the suspect. He was an experienced law enforcement officer. He knew both state and federal courts have sanctioned the use of deception and trickery by law enforcement to get a suspect to confess to a crime. 2/ Roberts decided to employ a extraordinary kind of deception on Wilson. He used an old crime lab report as a template to create a false crime lab report on his computer. He changed the heading on the old report to read, “Bexar County Criminal Investigation Laboratory.” He then typed in the following information: “Results: Examination of Item I revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson, a Black Male with the date of birth 11-13-84.” The false report listed Wilson’s city, county, state and federal law enforcement identification numbers.
Armed with the impressive albeit false crime lab report, Roberts entered the interrogation room at 10:02 p.m. He asked Wilson if he had touched anything at the crime scene. Wilson repeatedly said he had not. At 10:13 p.m. Roberts showed the report to Wilson who, while shaking his head in disbelief, studied its contents. Roberts told the suspect “they had his fingerprints” along with other incriminating evidence which the detective began to recite. At 10:17 Wilson interrupted the detective to say he didn’t how his prints wound up on the clip. Not deterred, Roberts continued to press Wilson, recounting for the suspect at 10:20 p.m. the laundry list of evidence against him beginning with the fingerprint report. “[I] can’t get over the prints,” Roberts said at 10:24 p.m. “Let me remind you, I’ve got that report. Those guys are experts. They’re like DNA experts. They’re like experts. What they say is the truth” Wilson put his hands on his head and looked down, saying: “Okay. Okay.” 3/
Detective Roberts apparently was not aware of Article 37.09(a)(2) of the Texas Penal Code which states that if a person, “knowing that an investigation is pending or in progress, makes, presents, or uses a document with knowledge of its falsity and acts with the intent to affect the course or outcome of the investigation,” he has violated Texas law. And the detective must not have been aware of Article 37.10 of the Texas Penal Code which provides: “A person commits an offense if he makes, presents, or use any record, document, or anything with knowledge of its falsity and with the intent that [it] be taken as a genuine governmental record.”
Article 38.23 of the Texas Code of Criminal Procedure provides that “no evidence obtained by an officer … in violation of … [the] laws of the State of Texas … shall be admitted in evidence against the accused on the trial of any criminal case.” Pursuant to this statute, Wilson’s defense attorney filed a motion to suppress the confession obtained from his client through the false forensic lab report. The trial court conducted two hearings on the motion. Detective Roberts readily conceded at the first hearing he had fabricated the forensic lab report he used to get Wilson to confess. 4/
The second hearing focused on the distinction between the legal use of deception and the use of a fabricated police report. Defense counsel was unwavering: he argued Detective Roberts had violated Texas law to secure the confession and it had to be suppressed under Art. 38.23. The prosecution, on the other hand, tried to undermine that argument by arguing “a fingerprint result sheet from a crime lab” was not a “governmental record” as defined in Art. 37.10. The trial judge also doubted whether the false report was a “government record” under the statute but admitted it had a definite impact on Wilson’s decision to confess. In denying the motion to suppress, the trial judge said it was not within his purview to decide whether fabricating a report to get a defendant to confess was “appropriate behavior” because the “Supreme Court doesn’t seem bothered by that.” 5/
The Texas Court of Criminal Appeals (“CCA”) was not as tolerant as the trial judge of Detective Roberts’ misconduct. It reversed Wilson’s conviction and ordered the confession suppressed. In reaching that decision, the CCA rejected a series of arguments presented by the State to justify Detective Roberts’ behavior. We think those arguments were both professionally disturbing and antipodean to the principles of justice. We laud the CCA for rebuffing them in clear, unmistakable terms.
The Federal Exclusionary Rule Argument
The federal exclusionary rule excludes or suppresses evidence obtained in violation of an accused person’s constitutional rights. 6/ The Texas Legislature, however, enacted Art. 38.23 which provides broader individual protections than the federal exclusionary rule. While any evidence barred under the federal rule would automatically be barred under the state’s exclusionary rule, Art. 38.23 added a much broader category of “illegally obtained” evidence in violation of Texas law that must be barred.
The State argued that the purpose of Art. 37.09’s prohibition against tampering with evidence “is to prevent individuals from defrauding the government. It is no way related to the collection of evidence by police detectives.” 7/ While the CCA politely called this position “a mistaken understanding of the statute,” the court made it abundantly clear it will not countenance blatant police misconduct like that of Detective Roberts because the very purpose of statutes like Art. 37.09 “is to maintain the honesty, integrity, and reliability of the justice system and prohibiting anyone—including members of the government—from creating, destroying, forging, altering or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding. Obstruction-of-justice offenses, such as tampering with evidence or government documents, address ‘the harm that comes from the [actor’s] disobedience of the law—damage to the authority of the government; a lessening of the public’s confidence in our institutions; public cynicism, fear, and uncertainty; and a social climate that is likely to lead to even greater disobedience.’ Public scandals involving police and ‘throw down’ guns, pool-chalk wrapped to look like cocaine used as evidence to prosecute innocent people, false offense reports, and the like are not unheard of in this state. Neither police nor private individuals have a license to fabricate documents or other evidence and then use them to affect a criminal investigation or judicial proceeding. This is exactly the type of law violation that the Texas Legislature intended to prohibit when it enacted article 38.23—conduct by overzealous police officers who, despite their laudable motives, break the penal laws related to gathering and using evidence in their investigations. A police officer’s violation of section 37.09 (or section 37.10) to obtain a confession or other evidence is at the core of conduct prohibited by the Texas exclusionary statute.” 8/ [Emphasis supplied]
The “Trickery and Deception” Argument
With logic that can be understood only by a prosecutor, the State argued that “fabricating evidence” is just another form of the kind of “trickery and deception” the U.S. Supreme Court and the CCA have constitutionally recognized. The CCA, however, thoroughly rebuffed the State’s attempt to transform a criminal act into an innocuous form of trickery and deception:
“According to Fred E. Inbau, the author of ‘the leading interrogation manual’ for police officers, verbal trickery, deception and ‘outright lies concerning the existence of evidence’ are acceptable interrogation strategies, but not the use of ‘false, incriminating documents. Specifically, the Inbau Manual states,
“‘The investigator, however, should not prepare false documents that appear to have been generated through an official source (for example, a crime lab, the FBI). The reason for this is a concern that such falsified documents may find their way into the court system …’
“The problem is that such fabricated physical evidence—the type of evidence covered by section 37.09—has an enduring life of its own and could end up being mistaken for ‘the real McCoy.’
“Unlike oral misrepresentations, manufactured documents have the potential of indefinite life and the facial appearance of authenticity. A report falsified for interrogation purposes might well be retained and filed in police paperwork. Such reports have the potential of finding their way into the courtroom.
“If police officers were free to manufacture physical evidence and fabricate documents to use in interrogating suspects, courts would no longer be able to routinely rely upon law enforcement or crime-lab reports as being accurate and reliable. The Texas Legislature, in enacting section 37.09 of the Penal Code, recognized that it is essential to our system of justice that citizens and members of the legal community can rely upon the integrity of government-generated documents and other evidence.” 9/
Finally, on this subject the State collaterally argued that “sanctioned deception” is sometimes required in a criminal investigation. For example, undercover police officers often purchase illegal narcotics but they are not in possession of a controlled substance as defined by the state’s penal code. Referring to this conduct as “statutorily sanctioned deception,” the CCA said “the Texas Legislature specifically exempted police officers who are acting in their official capacity from liability for the penal offense of possession of a controlled substance. The Texas Legislature could, should it decide to do so, exempt police officers from liability for the offenses of tampering with evidence or fabricating government documents, but it has not yet done so. We are required to follow the law as it is currently written. Sometimes ‘it takes a thief to catch a thief,’ but the decision to exempt police officers from certain penal laws rests with the Legislature, not the courts.” 10/
The “Totality of the Circumstances” Argument
The State attempted to rely upon decisions by courts in other states which have held that the use of fabricated physical evidence or documents to induce suspects to confess is just one factor under the “totality of the circumstances” tests used to determine the voluntariness of a suspect’s confession. The CCA informed the State that had Wilson presented the court with a federal exclusionary rule challenge, the court may have taken the “totality of circumstances” approach in deciding the claim. But the court noted that a voluntariness claim based on the due process clause of the federal constitution is quite distinct from a challenge alleging a violation of state law to procure evidence. Thus while a confession may be deemed voluntary under federal constitutional standards, it can nonetheless be barred under Art. 38.23 if it is obtained in violation of a state law.
In making this clear distinction between the “totality of circumstances” test and the mandate of Art. 38.23, the CCA rejected the State’s attempt to misrepresent Detective Roberts conduct with the assertion that since the detective believed his actions in presenting the false report to Wilson were lawful, Art. 38.23 should not bar exclusion of Wilson’s confession. The CCA addressed this issue as follows:
“First, Det. Roberts never said that he thought his conduct was lawful or that he believed that it was lawful to use a fabricated fingerprint report as a part of his investigation. He never said that he thought that what he was doing was reasonable. He did say, when asked if his conduct violated section 37.10 (tampering with governmental record), ‘I think that’s stretching it,’ but he never explained why he thought that his conduct might not be a violation of that penal provision. More importantly, a ‘good faith,’ or ‘pure motive’ violation of Texas penal laws concerning acquisition of evidence does not render article 38.23 inapplicable to the evidence obtained as a result of that violation. Det. Roberts subjective belief that his conduct was lawful or reasonable would not render the Texas exclusionary rule statute inapplicable to his violation of section 37.09.” 11/
The Wilson decision is certainly a rare blow for the rule of law, and we respect the CCA for having the legal courage to deliver it so forcefully.
SOURCES:
1/ Wilson v. State, 2010 Tex.Crim.App. LEXIS 20 (Tex.Crim.App. March 3, 2010)
2/ Frazier v. Cupp, 394 U.S. 731 (1969); Oursbourn v. State, 259 S.W.3d 159 (Tex.Crim.App. 2008)
3/ Wilson, supra, at Lexis 4
4/ Id.
5/ Id., at Lexis 8
6/ Burdeau v. McDowell, 256 U.S. 465 (1921)
7/ Wilson, supra, at Lexis 19
8/ Id., at Lexis 20-21
9/ Id., at 25-26
10/ Id., at 30-31
11/ Id., at 37-38
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