Herman's announcement comes just after Houston defense attorney Paul Morgan wrote a letter to the U.S. Attorney’s Office asking the federal government to investigate Harris County Precinct 4 and the Harris County District Attorney's Office, arguing that neither agency is capable of conducting an independent investigation and that the DA's office is complicit in the fiasco. Morgan also asks the feds to strip Precinct 4 of law enforcement duties and restrict the precinct only to the ability to serve civil process and warrants, because it has demonstrated that it "cannot handle criminal investigations and prosecutions," Morgan wrote.
Since 2007, the fired deputy, Chris Hess, has destroyed more than 21,000 pieces of evidence, putting more than 1,000 cases in jeopardy. Already, the DA's office has dismissed 142 pending cases, most of them drug-related, because the evidence was incinerated in January — the last time Hess destroyed evidence before he was caught and fired.
This problem only became public after Morgan and attorney Emily Detoto discovered in August that drug evidence in their own client's case had been destroyed — just as a prosecutor was offering their client, David Bellamy, a 25-year plea deal for meth possession, Morgan said. It was among the first cases to be dismissed because of the Precinct 4 missing-evidence fiasco.
But as more details have surfaced of the hundreds more affected cases, what has bothered Morgan and Detoto the most is the complete lack of action the district attorney's office had taken on the issue, they say — even though District Attorney Devon Anderson admitted to knowing about the destroyed evidence since February. It was only directly after KTRK aired a story about Bellamy's case on August 17 that Anderson blasted out an email to all her prosecutors, ordering them to stop offering plea deals or taking to trial any cases involving Precinct 4.
Morgan and Detoto say it was an email that should have been sent out seven months ago.
“With something this large, it’s either the height of deception or the height of incompetence — either way, it’s inexcusable,” Morgan said. “But which office has more blame? It’s the district attorney’s office all day. They legally have more responsibility. It’s why we have shiny gold bar cards. This just can’t happen.”
Still, Anderson has not taken any blame in this mess at all, instead choosing to put all of it on the shoulders of Constable Mark Herman — “which is like a general of the army blaming one of his soldiers for losing a war,” Morgan said. At a press conference Friday, Anderson said that since March, Precinct 4 has been providing her office incomplete, conflicting and inconsistent lists of all the cases that could be in jeopardy because of destroyed evidence. By May, that list had grown to 382 cases. Yet Anderson also said, “Trial prosecutors in this office were not aware of any possible issues with their cases until one of them was getting ready to go to trial a couple weeks ago.”
The Houston Press reached out to DA's office spokesman Jeff McShan to ask why, then, Anderson failed to take a moment to notify prosecutors of the “possible issues” herself, given that, despite the imperfect lists, she was aware of the missing evidence for months. McShan did not respond to our email.
Detoto contends the only reasonable explanation as to why Anderson sat on the information that long before notifying prosecutors and issuing Brady notices — which require prosecutors to disclose new evidence, or the fact that evidence is missing, to the defense — is that she wanted to avoid bad press as she stands for re-election in November.
“She’s implicitly throwing herself under the bus by admitting that she knew but her prosecutors didn’t,” Detoto said. “It can’t be both ways: Either she knew and sat on it, or she knew and convinced everyone else to shut up…She has an election coming up, and this looks really, really bad — but the joke’s on her, because it’s worse now rather than if she just addressed it head on when it first popped up. Instead she chose to put her political future ahead of the lives of innocent people, and that just cannot happen.”
The DA's office is now investigating all the cases dating back to 2007 to discover whether anyone who went to prison or jail did so in cases in which no evidence even existed against them because of Hess's misconduct. Anderson said Friday that the investigation could possibly result in criminal charges for Hess (that is, unless the U.S. Attorney’s Office agrees to step in and investigates the DA’s office alongside Precinct 4).
What is unclear for now is why Hess would do this for nine years straight — and how he got away with it. In an interview with the Houston Press, Herman said the protocols Hess did not follow include failing to make sure the evidence he was destroying was not tied to open cases before he drove truckloads of it to the incinerator and failing to obtain a court order granting him permission to destroy it. Herman said that, dating back to 2007, Hess never once obtained court orders for destruction of evidence for guns or drugs, though it’s unclear for now if the cases those older pieces of evidence were tied to were open or closed.
If Hess had destroyed evidence in any pending cases since 2007, that leaves defense attorneys puzzled over how prosecutors never discovered they had no evidence against suspects they convicted or persuaded to take plea deals.
Herman took over as constable in May 2015 after former Precinct 4 constable Ron Hickman became county sheriff. In January, Herman ordered Hess and several deputies to clean out the storage room because it was overfilled with evidence. He said his office caught Hess's misconduct shortly afterward, but he could not comment on or account for how Hess got away with destroying evidence for nine years prior. He says the constable's office has passed various audits "with flying colors."
Herman said Precinct 4 superiors can trace Hess's policy violations only to 2007 because that's when the department started using a new electronic system to track evidence destruction and the property room's inventory. Hess had been working in the property room, though, since 2000, which is when Hickman became constable.
Herman told the Press that when he ordered a review of all of Hess's past employee evaluations since 2000, strangely, no evaluations on Hess were on file. By contrast, Herman said that every employee is supposed to be evaluated every year.
A sheriff's office spokesman declined to comment on allegations that Hickman failed to discipline Hess for violations until it could be confirmed through records that Hess had been breaching department policies since 2007. The Press has requested the documents.
If Hess really was flouting policies for nine years, that leaves Herman, Detoto, Morgan, hundreds of suspects arrested by Precinct 4 deputies, the DA's office and perhaps eventually the U.S. Attorney's Office with one gaping question: Why would Hess do this?
We posed the question to Herman.
"It's one of three things. He either intentionally did it, he accidentally did it or he did it out of negligence," the constable said. "That many pieces of property, and him being back there for 15 years...I could rule out a couple of them real quick."