Harris County’s Precinct 4 is the largest Constable’s office in the United States with nearly 500 sworn deputies funded by a $52 million annual budget. Mark Herman, a three decade veteran with the Precinct 4 office, was appointed constable by the Harris County Commissioner’s Court in May 2015 and duly elected in November 2016. He vowed to fight crime and continue to keep Precinct 4 safe.


Precinct 4 Constable Destroyed Evidence Since 2007


Less than a year after being appointed constable, Herman learned that one of his deputies, Chris Hess, had destroyed evidence in the Precinct’s evidence room because it was overcrowded. The destroyed evidence—some 21,000 pieces in all—involved roughly 10,000 cases handled by Precinct 4 since 2007.


Herman’s statement about not learning of Hess’ action until late March or early April 2016 is at odds with then Harris County District Attorney Devon Anderson statement that she heard about the evidence destruction in February of that year.


No Action Taken by County Officials


That’s a minor detail when viewed against the backdrop that neither Anderson nor Herman took any official action to disclose, much less remedy, this situation until a local television station broke the story in August after two local attorneys, Paul Morgan and Emily Detoto, discovered that evidence had been destroyed in a drug case against a client they were representing.


Anderson then ordered a review of all Precinct 4 cases going as far back 2007. DA Anderson immediately dismissed 90 misdemeanor and felony drug cases and placed another 35 under review.


In the wake of the August public disclosure and the Anderson/Herman belated responses, Morgan wrote a letter in September 2016 to the U.S. Attorney’s Office for the Southern District of Texas requesting a federal investigation into the scandal. Morgan said that neither the Precinct 4 Constable’s Office nor the Harris County District Attorney’s Office was capable of conducting an “independent investigation” into the massive evidence destruction.


Constable Herman responded to Morgan’s request to the U.S. Attorney by finally firing Deputy Hess.


Not enough, Anderson told the Houston Press in September 2016.


The former DA said Herman had provided “her office incomplete, conflicting and inconsistent lists of all the cases that could be in jeopardy because of the destroyed evidence.”


Due Process Violations?


Under established Texas case law, if the evidence destroyed in criminal cases is material exculpatory evidence, then the State has committed a due process violation by its destruction. On the other hand, if the evidence is only potentially useful, then a due process violation occurs only if the State acted in bad faith. The burden shifts to the defendant to show that bad faith.


Current Harris County DA Kim Ogg inherited the Precinct 4 evidence destruction fiasco when she assumed office earlier this year.


The Houston Chronicle reported recently that Ogg and her staff have reviewed the 10,000 closed cases in the Precinct 4 evidence destruction scandal. Her office, through her assistant Gerald Doyle, earlier this month sent emails to defense attorneys for the 7,750 defendants informing them that evidence in some Precinct 4 cases had been “destroyed or is missing.”


Notices to Defendants, Attorney is Unhelpful


“This notice is provided to allow you to take whatever action you deem appropriate in your client’s case(s) as it relates to the collection and availability of evidence,” Doyle wrote.


The notice then provided contact information for the Records Custodian with Precinct 4 in order for the attorneys to “check on the status of or personally examine the evidence in your client’s case.”


Undoubtedly, most of the 10,000 closed cases were resolved through negotiated plea bargains.


In 2002, the Supreme Court held in United States v. Ruiz that a prosecutor’s duty to disclose Brady evidence—and by extension to preserve evidence—does not apply to defendants who plead guilty. In effect, the federal circuits will invariably rule that a guilty plea waives a Brady claim.


The fly in this constitutional ointment, however, is that the Texas Court of Criminal Appeals has held that a guilty plea itself could be rendered involuntary if the State fails to disclose Brady evidence before the plea was entered.  The primary question is whether the defendant has been deprived of due process and due course of law. “The requirement of due process and due course of law extends to guilty pleas as well as to contested cases.”


And this constitutional exception underscores the dilemma faced by the attorneys involved in the guilty pleas in these 10,000 cases.


Finding Existence Favorable Evidence After it is Destroyed May Be Problematic


Was there a favorable mitigating psychiatric report, a promise of immunity or other favorable benefits extended to state witnesses, prior inconsistent statements by a witness about a defendant’s alleged criminal conduct, and a host of other Brady-like evidence that may have been destroyed in the guilty plea cases.


This will never be known. There may be no way to recover Brady material from the files Chris Hess incinerated.


And this brings us back to original legal dilemma in this sordid affair: while the State has an affirmative duty to disclose and preserve Brady evidence, this duty does not extend to those cases that went to trial when failure to preserve only involved “potentially favorable evidence” unless the defendant can make that “bad faith” showing. Texas courts have identified the relevant factors that must be considered in deciding whether lost evidence in these cases constitutes bad faith:


  • The level of government culpability;
  • The likelihood that the lost evidence was exculpatory; and
  • The likelihood that the defendant was significantly prejudiced at trial by the absence of the evidence.


At least eight Texas courts of appeals, including the Fourteenth sitting in Houston, have examined the issue of lost/destroyed evidence in criminal cases that went to trial and found no due process violation in any of them.


A reasonable assumption can be made that many of the defendants in these 10,000 cases were guilty, but that same reasonable assumption can be made that some were innocent. The chances of the innocent ever realizing exoneration have been extinguished because of Chris Hess’ criminal actions—and the sloppy, shoddy way that DA Anderson and Constable Herman responded to those actions.


The 7,750 attorneys involved in these 10,000 cases, whether resolved by a guilty plea or a jury trial, must analyze their own files and demand specific information from the DA’s Office and Constable Precinct 4 to identify what and when evidence was destroyed to determine potential Brady violations.  This is particularly urgent in the cases tried before a jury. The due process door may be cracked in some of those cases.  Harris County has some of the best criminal defense lawyers in the country, steeled by decades of aggressive, and in some cases, rogue prosecutors. This scandal is most likely far from over.