The ruling from the state’s highest court Wednesday to Harris County
prosecutors was definitive, and final: Turn the documents over.
For more than a year, Harris County prosecutors have
fought requests from defense attorneys for information and evidence that
are routinely turned over in every criminal case. The documents being
sought are those used to charge some of the Houston police narcotics
officers at the center of the Harding Street drug raid scandal.
After a 2019 drug raid ended in the deaths of two homeowners, Houston police investigators said the operation by Narcotics Squad 15 was based on lies by Gerald Goines, the veteran narcotics officer who led the operation.
The firefight led to investigations from the FBI, the
Harris County District Attorney’s Office, and an internal probe by the
police department. The FBI’s investigation led to federal charges against Goines —
for violating the rights of the slain couple, Dennis Tuttle and Rhogena
Nicholas — and his former partner, Stephen Bryant, with lying on
Local prosecutors, meanwhile, began re-examining hundreds of cases Goines and his colleagues worked, dismissing many of them and pushing to have some convictions overturned. Ultimately, Goines was charged with felony murder, and a grand jury indicted him and 10 other current and former officers with a slew of other crimes, mostly related to lying on government documents to pad their overtime pay.
Harris County District Attorney Kim Ogg trumpeted the indictments in January, comparing the officers’ behavior to “straight-up graft,” which she said “can literally rot an institution from the inside out.”
At the time, defense attorneys representing several of
the accused officers asked Ogg’s prosecutors for documents and
information DA investigators used as the basis for the charges —
documents they say they routinely receive in other cases.
Under the Michael Morton Act, prosecutors are required to
share such information with defendants, but Ogg’s civil rights
prosecutors have fought defense attorneys’ requests for the documents by
arguing that they are protected from disclosure because they are work
The move has led to serious acrimony between defense
attorneys and prosecutors, and even led a district judge to say last
month that Ogg’s statements had “tainted” the public's view of the case.
The unanimous ruling from the Texas Court of Criminal
Appeals follows similar requests by civil rights prosecutors in front of
judges three other times over the past 13 months, a move that led local
defense attorneys to accuse Ogg’s prosecutors of political prosecutions
and prompted both the Harris County Criminal Lawyers Association and
the Texas Criminal Defense Attorneys Association to file amicus briefs
in support of the officers and urging release of the documents.
Defense attorneys reacted Wednesday by saying the court’s ruling was long overdue.
“It is pretty sad that the Harris County District
Attorney’s Office, who, by law, is supposed to not seek a conviction but
seek justice, will refuse to turn over an offense report that they know
by law they have to,” said HCCLA President Joe Vinas, “and have to have
judges at every level in the state tell them to do their job and
prosecute cases fairly.”
Criminal defense attorney Ed McClees accused Ogg’s
prosecutors of using “every trick they could think of” to withhold the
documents he’d requested.
“I’m glad to see the Court of Criminal Appeals has put an
end to their nonsense,” said McClees, who is representing Thomas Wood, a
former Squad 15 member charged with aggregate theft and lying on
government documents. “It flies in the face of Texas law and their
On Wednesday, DA spokesman Dane Schiller downplayed the
significance of the court ruling and said prosecutors would continue
pursuing their case against Goines and the other accused officers.
“Prosecutors have a right to try to make their case to
the court, defense attorneys make their case, and the court decides,”
Schiller said. “And we respect that decision.”
Presiding Judge Sharon Keller and Judge Kevin Yeary filed
a dissenting opinion, agreeing with Ogg’s prosecutors that the
documents and information they seek to withhold was work product or
exempted under the state’s code of criminal procedure.
“The trial court’s rationale for nevertheless requiring
discovery is that the State, as opposed to a police department, was the
investigating agency in this case,” Keller wrote, before arguing that
prior rulings that prosecutors lose the work-product privilege if it
investigates a case “has no basis in the law.”
But in one concurring opinion, judges David Newell,
Barbara Hervey, Bert Richardson and Scott Walker argued that the
materials Ogg’s attorneys were seeking to withhold “do not clearly fall
within the recognized parameters of ‘work product,’” — and in a separate
concurring opinion — noted that under the landmark Supreme Court case Brady vs. Maryland, prosecutors are specifically required to turn over exculpatory evidence to defendants.
“The work-product privilege is not absolute, and the duty
to reveal exculpatory evidence as dictated by Brady overrides any
privilege under the work-product doctrine,” wrote Newell, who worked at
the Harris County District Attorney’s Office as an appellate prosecutor
before being elected to the CCA.