(Ore)gone to Hell?
The year 2000 was another very good one for the already successful civil litigation firm of Richard Mithoff and Tommy Jacks. In April a Houston jury ordered Columbia Kingwood Hospital to pay more than $40 million to a Mithoff client in a medical malpractice suit. And just last month 54-year-old Mithoff and his wife, Ginni, were honored with the Ben Taub Humanitarian Award for their financial contributions to health care in Harris County.
But despite the happy faces at the firm's annual posh Yule gala, the year ended on a bit of a down note. In early December Mithoff's key witness in a high-profile case, the wrongful death lawsuit against the City of Houston and six former Houston cops involved in the killing of Pedro Oregon, pleaded guilty to aggravated perjury.
A few days later U.S. District Judge Simeon Lake dismissed the city from the lawsuit, thereby eliminating the only defendant capable of paying a potential big-money judgment to the Oregon family and Mithoff.
The Oregon saga began on July 12, 1998. Pedro Oregon, a 22-year-old father of two, died after being shot 12 times -- nine times in the back -- by police after Oregon allegedly brandished a gun during a botched drug raid at his southwest Houston apartment. The officers fired 33 times at Oregon, including 24 shots by one officer. A gun was found near Oregon's body, but no drugs were ever located.
The six officers -- patrolmen D.R. Barrera, James Willis, Pete Herrada, David Perkins, L.E. Tillery and Sergeant Darrell Strouse -- were fired by Police Chief C.O. Bradford. In his termination of the officers, Bradford cited multiple violations of department policy committed by the officers during the raid.
However, the only criminal charge returned by a Harris County grand jury was a misdemeanor count of trespassing against one officer -- Willis -- and even he was eventually acquitted (see "Dead, Dead, Dead," by Steve McVicker, May 6, 1999). After months of investigation, a federal grand jury indicted two officers on charges of violating Oregon's civil rights.
The two indictments were dismissed, however, when reports surfaced that Rogelio Oregon, Pedro's brother who was also in the apartment during the raid, had lied during his state grand jury testimony. On December 1 Rogelio pleaded guilty to one count of aggravated perjury, a charge that prosecutors say stemmed from Rogelio lying about his brother owning a gun and about his own relationship with a police informant who tipped police about the possibility of drugs in the apartment.
Judge Lake ruled that it had not been proved that the city has a practice of allowing or encouraging officers to conduct warrantless searches, such as the one carried out against Oregon. According to a police union attorney, Rogelio's guilty plea could increase the possibility that at least a couple of the fired officers might convince an independent arbitrator, who will hear the appeals of their dismissals, to give them back their HPD jobs.
The city "doesn't really have anything to say that Tillery did anything wrong except that he was there and was shot by friendly fire," says Bob Thomas, an attorney for the Houston Police Officers Association. "I think the arbitrator will put him back" on the force. "And I think Willis has a better than average chance of getting his job back because he was following the instructions of [Strouse], also."
Strouse has appealed his firing. Barrera and Herrada have not. Thomas believes Perkins may have been reinstated on the force if he had waited until now for a hearing. Thomas also admits he was shocked by Lake's decision to cut the city loose from the lawsuit.
"We thought Judge Lake's ruling was pretty stunning," says Thomas. "We didn't anticipate he would grant summary judgment for the city. I don't think anyone else did either, to be honest."
Especially not Mithoff, who is asking the Fifth Circuit Court of Appeals to review Lake's ruling. Mithoff believes Lake's decision is inconsistent with the judge's own observations about the Houston Police Department's gang task force, and whether it has a pattern of cowboylike behavior like that displayed by the officers during the Oregon raid.
Indeed, in his own 80-page ruling, Lake writes that the evidence shows that 11 incidents resulted in 25 "warrantless arrests" by the task force. The judge says such raids without warrants "presumptively" violate the U.S. Constitution and that the city failed to show that the raids were legally sound. His ruling also says he is "not persuaded by the City's argument that the smell of burning narcotics provides officers both the probable cause and exigent circumstances need to justify warrantless entry and search of a private residence."
Lake concluded that Mithoff raised "a genuine issue of material fact" about whether the warrantless raids "represent a persistent, widespread practice" of gang task force officers "which is so common and well settled as to constitute a custom that fairly represents municipal policy."
The judge, however, goes on to say that while the plaintiffs proved that the practice exists, they didn't establish that the city's policy makers knew about it.
"We think that the law is pretty clear," says Mithoff. "Once you establish the pattern and practice, it's not necessary to prove knowledge on the part of the policy makers."
Mithoff also plans to include other evidence that he believes is damning to the city's contention that it should not be held accountable for the officers' actions.
Former Houston police chief Sam Nuchia, now a justice on the state's First Court of Appeals, testified in December 1999 that he told gang task force supervisors that their officers were to "go out and use every legal means, to the line, into the gray area, up to the line, of arrest, search and seizure."
In other words, says Mithoff, the department encouraged the gang task force to push the outside of the envelope in making those searches and arrests.
The appeal also will use the deposition last January of Kim Ogg, the former mayoral liaison to the task force. She admitted under questioning by Mithoff that the task force suffered from a lack of training and written guidelines, and that she brought these shortcomings to the attention of the HPD command staff. Ogg says there was no response to her concerns by the time she left her post in September 1999.
Mithoff also plans to make the appellate court aware of the October 1999 deposition of HPD Captain Charles Bullock. For seven years he oversaw the police division that included the task force. Bullock admitted he could not recall any task force member ever seeking a warrant for any drug-related seizure.
Mithoff admits he has invested a considerable sum of his time and out-of-pocket expenses in the Oregon case, although he insists it is not close to the $700,000 figure that has been thrown about in legal circles. However, more than a few attorneys whom Mithoff has gone to war against over the years would like nothing better than to see him take a financial bath in the Oregon case. And while that may come to pass, Mithoff maintains that this case was never about the money.
"I took the case because I thought it was an important case," says Mithoff, "not that I thought I was going to get rich."
Make that richer.
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