Houston Police Department, Harris County Law Enforcement Gaining National Reputation for Police Abuse and Misconduct
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
We have blogged in the past about the travesty of police misconduct, especially the kind where brutality is inflicted upon criminal suspects for no reason. The Houston Police Department (HPD) has now been shown in a couple recent disclosures of videos stomping, kicking, and beating defenseless, even handcuffed, suspects and these lawless acts of brutality have roiled this community with outrage, anger, and frustration (here and here).
We have also blogged about the legal difficulties involved in bringing about accountability in “police custody deaths.” This was evidenced most recently in the case of 20-year-old Danroy “D.J.” Henry, a popular Pace University football player, who was killed last October by police outside a bar in Thornwood, New York. The police had been called to the bar after a reported disturbance. Henry, who had been in the bar, left and was sitting inside his parked vehicle when the police arrived and started banging on his window. Thinking the officers were instructing him to move his vehicle, Henry backed his vehicle up striking an officer in the process. The officers responded by pumping a volley of bullets into the vehicle killing Henry.
A Westchester County grand jury recently declined to indict the officers in connection with Henry’s killing. The Boston Herald reported that District Attorney Janet DiFiore said the grand jury found “no reasonable cause for an indictment.” D.J.’s father, Henry, was quoted by the newspaper as saying in response to the grand jury decision: “We’re not surprised at all. This is what we were predicting would happen. The procedures they used to investigate this were akin to you or I being victimized by someone and them saying I’m going to have my brother and sister investigate this, and my mother and father will make a decision. The process is fraught with institutionalized biases that we’ve been trying to point out from the beginning.”
The National Police Misconduct Statistics and Reporting Project (NPMSRP) in its semi-annual report in 2010 listed 2,541 cases of police misconduct in this country—and the largest category of misconduct between January through June was “physical force” used against citizens. NPMSRP reported that these cases led to 124 deaths, and resulted in governments across the country paying out $148.5 million in judgments and settlements in police misconduct cases.
But in probably the worst case of organized police misconduct in American history a recent federal appeals court decision barred the families of two murdered men from recovering damages under the Federal Tort Claims Act. This case evolved out of what the First Circuit Court of Appeals in Donahue v. United States called an “axis of evil” between the Boston FBI office and the city’s Winter Hill Gang crime boss, James J. “Whitey” Bulger. The appeals court provided the extensive background facts in the FBI/Bulger affair:
“For decades Whitey Bulger, a key figure in organized crime circles in Boston, and the leader of a criminal syndicate known as the Winter Hill Gang, led a double life. Unbeknownst to his counterparts in crime, he served as a confidential informant for the FBI. Bulger’s underworld position made him privy to various and sundry activities of rival gangs, including the Mafia (sometimes known as La Cosa Nostra). The FBI’s ardent desire to bring the Mafia to heel led it to make a Faustian bargain: in exchange for information about Mafia activities, the FBI would protect Bulger and [Stephen the ‘Rifleman’] Flemmi and ‘look the other way’ as the duo pursued their own felonious misadventures. This alliance spanned three decades, lasting from the late 1970s well into the 1990s.
“John Connolly, a member of the FBI’s organized crime unit, was tasked to ‘handle’ Bulger and Flemmi. Connolly and Bulger had grown up in the same South Boston neighborhood. John Morris, who for most of the relevant period headed the organized crime unit in the FBI’s Boston office, oversaw Connolly.
“Over time, Bulger and Flemmi plied their FBI handlers with assorted gratuities…More importantly, they provided a cornucopia of high-quality information that led to the convictions of several Mafia hierarchs. These convictions were a gift that kept on giving: they enhanced the informants’ value to the FBI, decimated a powerful rival of the Winter Hill Gang, and created a vacuum that Bulger and Flemmi systematically exploited.
“Not surprisingly, the FBI coveted Bulger and Flemmi and considered them ‘Top Echelon’ informants…Because this characterization elevated the status of their handlers. Connolly and Morris did everything in their power, whether legal or illegal, to protect their prized informants and keep them happy. In the bargain, the agents blithely ignored FBI guidelines and permitted Bulger and Flemmi to carry out a constellation of criminal activities, ranging from loan-sharking to extortion to murder.”
The old adage “you lay with dogs you get fleas” applies here. Connolly became so enamored with both Bulger’s lifestyle and power that he effectively became a self-made member of the Winter Hill Gang himself. He actively discouraged state law enforcement agencies from investigating Bulger’s criminal activities, and when the discouraging efforts did not work because state authorities had become “fed up” with the unholy alliance between the FBI and the Winter Hill Gang, Connolly would warn Bulger and Flemmi of any state law enforcement investigations or raids against them. Worse yet, Connolly leaked to Bulger the names of any other “informants” who provided the FBI or other law enforcement agencies with information about him and Flemmi.
And it was this “axis of evil” that eventually led to the brutal murder of Edward “Brian” Halloran and an innocent, unsuspecting friend named Michael Donahue. Halloran was what the First Circuit described as a “low-level hoodlum” who functioned primarily as a cocaine dealer but who occasionally was used by the Winter Hill Gang in its varied criminal activities. These activities led him to face a state murder charge in 1982. Halloran decided to “make a deal” with the FBI. He knew the Feds were investigating the high profile murder of millionaire businessman Roger Wheeler who had ties to a Winter Hill Gang associate named John Callahan in some Connecticut-based Jai Alai clubs, which enjoys some popularity as a gambling sport. Wheeler began to suspect Callahan was skimming money from the businesses and ordered an audit. Wheeler was gunned down not long afterwards. The FBI outside of Boston suspected Callahan was behind the murder.
Asking for immunity on his state murder charge, Halloran informed the FBI he had information about the “Wheeler murder.”
He provided preliminary information that Bulger, Flemmi and Callahan were responsible for the murder because they had offered him “the contract” to carry it out. Halloran said he refused the contract and Bulger procured the services of “someone else” to do the job. The FBI agents who received this information naturally turned to Morris for an assessment of Halloran’s credibility. Morris then confided in Connolly leading both men to conclude that Halloran could unravel the relationship between the FBI and Bulger/Flemmi. Morris responded to this crisis by telling Halloran’s handlers the informant was “untrustworthy” so they rejected his offer of assistance and his request to be placed in a witness protection program.
There are several tragedies in this sordid episode. Halloran’s information was “right on the money.”
John Martorano, a Winter Hill Gang associate, killed Wheeler and several months later also killed Callahan per Bulger’s orders. But that did not end the matter. Connolly leaked Halloran’s identity to Bulger and Flemmi as the “informant” who tried to give them up in the Wheeler case. Connolly, as well as Morris, knew Halloran’s days were numbered after that disclosure. And they were: a short time later Halloran asked his neighbor, Michael Donahue, for a ride home. Donahue knew nothing about Halloran’s involvement with Bulger’s crew. He was just being a “good neighbor” when he gave Halloran the ride that cost both men their lives. Bulger pulled his vehicle alongside of Donahue’s vehicle and a volley of shots rang out. Donahue was killed instantly and Halloran died a short time later but not before naming James “Jimmy” Flynn, a Winter Hill Gang associate, in the ambulance as his assailant. Halloran was dead upon arrival at the hospital.
State law enforcement officials were furious. They knew, along with some FBI officials outside the Boston office, that Bulger and Flemmi were responsible not only for the Wheeler, Callahan, Halloran and Donahue murders but scores of others—and they had begun to suspect that some members in the Boston FBI office were responsible for some of these murders as well. The Boston FBI office found itself in a touchy situation with its use of Bulger/Flemmi as informants. Members of its organized crime unit, including Morris and Connolly, met to discuss the situation. They knew any evidence of Bulger and Flemmi’s involvement in these murders would force the unit to “close” them as informants.
Yet Morris and Connolly informed the organized crime unit they would retain the two killers as “Top Echelon” informants until they received “substantial” evidence linking them to any murder. Then the two agents engaged in what the First Circuit said was “an active role in preventing any such ‘substantial information’ from surfacing,” including “hindering attempts by other FBI offices to solve the Wheeler and Callahan murders, furnishing information about pending investigations to Bulger and Flemmi, failing to index documents summarizing Halloran’s charges, and prohibiting interviews of Bulger and Flemmi. They also made certain that no information about Bulger’s role in Halloran’s murder was revealed to the Massachusetts authorities.”
By this time the Boston media had developed an intense and ongoing interest in the Whitey Bugler saga, especially since his brother was president of the Massachusetts Senate. Whitey saw the handwriting on the wall. He disappeared, finding himself on the FBI’s Ten Most Wanted List. He has never been captured. Connolly was indicted and convicted for his role in the case, as was Flemmi who was not as fleet of foot as Whitey. The Boston FBI office has never fully recovered, and, in fact, many now believe the FBI does not really want to capture Bulger, who has been on the run for sixteen years, because of the damaging revelations he could provide about the federal law enforcement agency.
The Donahue and Halloran families sued the United States Government under the Federal Tort Claims Act for the FBI’s complicit role in the deaths of the two men. A U.S. District Court awarded the Halloran estate more than $2 million and the Donahue family more than $6 million in the cases. In a brutal twist of legal irony, the First Circuit, while thoroughly denouncing the actions of the FBI in the two men’s murders, vacated those damage award judgments, finding that the families had not timely filed their legal actions within the prescribed two-year period and, therefore, they were forever barred under federal law from suing the government.
The families get nothing! But the law is the law, and it is not always fair. And, more often than not, the law is actually set up to protect the very officials who enforce it when they are guilty of abusing it. That is precisely what happened in the Whitey Bulger case. The FBI got away with murder.
Finding a law enforcement agency legally accountable for a deliberate death, whether through an unauthorized use of excessive force or deliberate murder as in the Bulger case, is extremely difficult. It is a tragic, unfortunate state of affairs. And these difficulties will be faced by the family of David Wayne Butler.
The Houston Chronicle recently reported about yet another questionable police shooting case this past December in which David Wayne Butler was stopped by the HPD for riding his bicycle the wrong way down a street with no headlight and ended up dead with a bullet in the back of his head.
“I just want to know what really happened,” Charlene Butler, the young man’s mother, told the newspaper. “If he was doing anything wrong, why couldn’t they write him a citation and let him go?”
A very legitimate question. The HPD is declining to discuss specifics about the case, citing its usual response about “an ongoing investigation.” A summary of the initial report in the case revealed that two HPD officers, while on routine patrol, stopped Butler and attempted to search him. The officers said Butler pulled a pistol from his pocket and a struggle ensued as they tried to take the weapon from him. During the scuffle, Butler reportedly pointed the pistol at one of the officers at which time the other officer shot and killed him.
The citizens of Houston are fed up with HPD’s violence. Town hall meetings are drawing large crowds of angry and frustrated people. And it is difficult to comprehend cases like the Butler case where a minor criminal suspect ends up dead after seemingly insignificant confrontations with the HPD. The video evidence is patent and obvious: HPD officers, of all rank and stripes, are quick to use excessive force in making arrests—and the city’s leading law enforcement agency is on the way to establishing a reputation comparable to the Boston FBI office when it was under the leadership of John Morris and John Connolly.
We are mindful that the police have a tough job, and we do not minimize the danger every officer faces when making a potential arrest. But that danger does not translate into an official license to physically abuse and kill suspects with impunity. Cases like David Butler demand more than “ongoing investigations.” They scream for accountability. Not even the State of Texas authorizes the death penalty for minor criminal behavior, so likewise the HPD should not be allowed to kill at whim.
The Chronicle reported recently that Houston Mayor Annise Parker has “retasked” two existing police review panels and renamed them to demonstrate her commitment to curtailing police abuse in this, the nation’s fourth largest city. In addition to the oversight panels, Parker announced the city will have a full time “ombudsman” who will “provide confidential assistance to residents alleging police misconduct.” Parker stated she believed these three initiatives would go a long way in “restoring confidence in the police department.”
Local civil rights advocates and community activists, however, were not as confident, saying the initiatives would not bring about the necessary reforms in HPD they have sought for years. Local activist Kofi Taharka, chair of the Chicago-based National Black United Front, stated the initiatives were “unacceptable” because the panels do not “have subpoena powers and it doesn’t have investigative powers.”
We share these community concerns. It is a good thing that Mayor Parker recognizes the need to change the police oversight process, but quite another to say these changes will result in meaningful reforms. The complaint/investigation process involved in police misconduct cases is daunting to say the least. But it’s never this process that is at the core of police misconduct issues. It’s leadership within the department, a leadership that begins with the command posts and stops with the chief. If HPD does not have a leadership committed to responsible, effective, and law-abiding law enforcement, then HPD will continue to experience the host of misconduct/brutality episodes it has over the past decade. Mayor Parker must be willing to do more than window-dress. She must have the moral courage to hold HPD’s leadership accountable. A police officer will only do what his commander allows.
Mayor Parker could learn a great deal by studying the sordid Whitey Bulger affair. Rank and file FBI officials became “made” Mafia criminals and resorted to murder because no one in leadership wanted to face the difficult moral task of holding these lawless rogues accountable. Until we see some real accountability, HPD leadership being held accountable, we will continue to hold our nose and hope for the best. But we’re afraid we will continue to see the same thing: criminal suspects being beaten and killed at the hands of police officers who operate under the belief that the HPD leadership has “their backs.”
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair