As this blog reported earlier, a former Houston police officer awaits trial for murdering a man and a woman, in their bed, on January 2019.  The officer, Gerald Goines, had lied on an affidavit to obtain a no-knock search warrant.

    The affidavit claimed that a confidential informant had stated that the couple were drug dealers and that Goines had confirmed this information by making a drug buy.  Totally false.  There was no informant, Goines hadn't made a drug buy, and the man and woman were not drug dealers.

    While the couple was asleep, Goines and other cops not in uniform battered their door open.  It woke the man, who managed to wound Goines and 3 other intruders before dying in the rain of gunfire which also killed the woman.

    Goines' story fell apart.  He and another officer, Felipe Gallegos, now face federal civil rights charges as well as state indictment for felony murder.  Some other officers in the same narcotics squad have been charged with other offenses. 

    The District Attorney for Harris County, which includes Houston, became concerned that Goines had lied in other cases.  The DA, Kim Ogg, dismissed several dozen pending cases and assigned staff to review thousands of past cases.

      One of those cases involved Otis Mallet.  In 2011, he had been convicted of a drug offense based solely on Goines' false testimony that Mallet and his brother had sold Goines drugs.  Mallet spent 3 years in prison.

     An investigation convinced the DA that Goines had lied and that the two Mallet brothers were innocent.  When Otis Mallet's lawyer petitioned the court to clear his client's record, the DA agreed and argued that he should be exonerated.

    Goines could not avoid being called to the witness stand, but took the Fifth Amendment.  The court recommended that Mallet be exonerated and the Texas Court of Criminal Appeals agreed, declaring him actually innocent.  In a separate proceeding, Mallet's brother also was exonerated.

 
    Mallet received $260,417 in compensation from the state.  However, that hardly makes up for the ordeal of being wrongfully  accused, tried and imprisoned.  That money comes from the taxpayers of Texas, not from the people responsible.

    So, Mallet recently filed a suit against Goines and another officer.  It seems unlikely that Goines will have much money left after paying a lawyer to defend him against the murder charge in state court as well as the federal charges.  On top of that, the families of the two murder victims have sued him.

    Therefore, it would seem like a good idea for Mallet to name the City of Houston and its police department as defendants.  But he didn't.  Supreme Court precedents often stand in the way of making a municipality pay for its cop's misdeeds.

    It's strange.  If a truck driver working for a private company negligently ran into you while performing his job duties, you could hold not only the driver but his employer legally responsible.  But a different rule applies when the employer is a municipality  Decades ago, the Supreme Court decided that a person injured by the wrongdoing of a city employee cannot hold the city liable except under very limited circumstances.

    The Supreme Court's decision in the Monell case and related precedents have created a hairball which only a lawyer could love.  Figuratively speaking, to hold a city liable for the actions of one of its employees, a plaintiff must show that the city's fingerprints are on that action.  For example, the plaintiff might prove that the employee was following a specific city policy or established practice.  In some cases, it has been sufficient for a plaintiff to show that the city did not adequately train and supervise the employee.

    However, it isn't easy.  It appears that Mallet's lawyer did not believe he could prove that there were circumstances warranting holding the city liable. He may well be right, as a matter of law.

    But as a matter of common sense, if the public wants its police officers to behave properly, it must make police chiefs and supervisors accountable for what their subordinates do.

      Considering the number of innocent people who have been convicted of crimes in Houston, it is difficult to believe that police management didn't know that officers had framed innocent people.  It doesn't take the mind of Sherlock Holmes to look at the exonerations and suspect something is afoot.

     Some observers have blamed the problem on the war on drugs, and it's true that Houston's Squad 15 was a narcotics unit.  But there may be other factors contributing to police lawlessness.

    A big city police department is a government bureaucracy.  It measures success by the number of crimes solved, that is , by the number of people locked up.  Bureaucrats cover for each other when outsiders peek in, and they develop the talent to avoid responsibility and pass the buck.

    Bureaucracy particularly thrives in government when it is politically and legally difficult to hold employees and their supervisors accountable.  The public bears some responsibility by demanding a low crime rate without also insisting that cops themselves don't violate the law.

    But the Supreme Court's Monell doctrine certainly doesn't help.

Making the criminal justice system work properly entails more than pitching the bad apples.  We also need to find the good apples and put them in charge.

The news media tend to focus on one type of bad apple, the bully.  Video of a bully in action makes dramatic television.

Other types of bad apples, such as cops who take bribes, sometimes make headlines.  But good apples don't get the attention.

They do their jobs conscientiously, without fanfare.  They stick to their principles even when inconvenient and stick their necks out, when necessary, to prevent injustice.  Without the good apples, the system rots.

Consider the case of Paul Shane Garrett.  Bad apples sent this innocent man to prison.  Almost 2 decades later, good apples cleared his name.

In June 2000, someone strangled Velma Tharpe, a sex worker, and left her body in an alley in Nashville, Tennessee.  Police took bodily fluid samples for DNA testing.

Nashville police detective Roy Dunaway focused on Garrett, a truck driver who admitted that in the past he had hired sex workers, but repeatedly denied killing Tharpe.  Garrett voluntarily submitted a DNA sample.

Garrett's DNA did not match that found at the crime scene.  But despite the negative result, Detective Dunaway persisted.

Dunaway lied under oath, falsely claiming that Garrett had made incriminating statements.  In truth, even under coercive interrogation, Garrett denied killing Tharpe.  In one recorded interview, Garrett denied it 30 times.

But the grand jury believed the detective and indicted Garrett for murder.  Garrett stayed in jail 2 years.

To Garrett, it must have seemed like a nightmare, not America.  Despite all his denials, despite the negative DNA tests, despite the absence of other evidence, he was behind bars awaiting trial for murder.  All because of the perjury of a rotten apple cop.

Finally, in 2003, fearing that he would be convicted and sentenced to life in prison, Garrett entered into a plea deal.  Pleading guilty to a lesser charge, Garrett was sentenced to 15 years in prison, and could not be released on parole until he served at least 4-1/2 years behind bars.

In 2004, the Tennessee Bureau of Investigation learned that the DNA found on the victim matched that of a person listed in a federal database.  That person was not Garrett.

A TBI agent sent letters both to Dunaway and to the District Attorney's office, requesting that they obtain a DNA sample from this new suspect.  What happened then?  Nothing.

What Dunaway did with the letter he received we don't know.  That letter was not in the police case file.

A later investigator did find the TBI agent's letter to the District Attorney.  It was in the DA's case file, and on it was a sticky note stating "someone should look into this."

The sticky note sounds like a pass-the-buck bureaucratic move, a way to "get this off my desk and let someone else worry about it."  But no one did.  

And, apparently, no one told Garrett that the crime scene DNA matched another person's.  Garrett stayed in prison, unaware of this development.

Now, let's do what Garrett could not:  Press "fast forward" and skip to 2011.  Detective Mike Roland, of the Nashville Police Department's cold case unit, becomes involved.  He is a good apple.

Roland reviews the case and reports to his supervisor, Sgt. Pat Postiglione.  The two detectives interview Garrett in prison.  With a look of relief, Garrett asks, "What took you guys so long?"  

The detectives become convinced of Garrett's innocence and Postiglione sends an email to the district attorney.  In the email, Postiglione states that there "is absolutely nothing to suggest that Garrett was involved in this murder."

A high-level meeting results.   The two cold case detectives report their findings to the Nashville police chief and the district attorney.  Some others from the police department and the DA's office also attend the meeting and one of them, an assistant district attorney, is assigned to investigate further.  She concludes, "I do not believe we can permit Garrett's conviction to stand."

However, her boss, the district attorney, won't try to have Garrett's conviction set aside.  The most he will do is write a letter to the parole board, expressing doubt about Garrett's guilt and suggesting Garrett be paroled.

Garrett was released from prison in 2011.  But he still had the manslaughter conviction on his record.

The next year, Garrett did seek, through his attorney, to clear his record.  However, the district attorney objected.  Garrett remained a convicted felon.

In 2014, the district attorney decided not to seek reelection.  An "outsider," Glenn Funk, ran and won, defeating the candidate the previous DA had endorsed.

Funk established a conviction review unit.  Across the country, prosecutors have begun setting up such units only in the last 2 decades, after DNA evidence revealed that a surprising number of innocent people had been convicted.

Roland contacted the DA and asked that the conviction review unit look at Garrett's case.  At this point, Garrett already was out of prison and I believe a lot of police officers would not have gone to the trouble, but Roland did.

The conviction review unit director, Sunny Eaton decided that  Detective Dunaway had mischaracterized or fabricated evidence. The DA supported an effort by the Tennessee Innocence Project to have Garrett's manslaughter conviction set aside.

Earlier this month, a court vacated Garrett's conviction.

In my view, DA Funk is one of the good apples.  So is CRU Director Eaton.  Detective Roland is more than a good apple.  He's golden.

He also arrested the man he believes is the real killer, as indicated by the DNA match.

But what about Detective Dunaway, whose lies resulted in an innocent man going to prison?  Dunaway received no punishment for the perjury.  However, his actions in another case resulted in a demotion, and he retired in 2007 "in bad standing."  That is, he isn't eligible for rehire.

After leaving the Nashville force, Dunaway found work as an officer with a public university in a neighboring state.  For a while he served as interim chief.

Something seems amiss about our system of justice when a person guilty of no crime goes to prison and the person who committed perjury goes to Kentucky.

Kentucky map from Wikimedia Commons.

Suppose you went to prison in 1979 for murders you didn't commit. Your picture above was taken way back then, before your conviction, but you look different now, using a wheelchair.

Four decades behind bars can take their toll on the spirit, too, but last year came a new reason to hope.  The Midwest Innocence Project and volunteers from a major law firm had assembled new evidence of your innocence and were taking it to the prosecuting attorney.

Two months ago, good news brought another reason to hope.  The prosecutor announced that she had become convinced of your innocence and was going to work to set you free.  Announcements like that are as rare as quintuplets.

As this blog noted at the time, Kansas City Prosecutor Jean Peters Baker had no ethical obligation to petition the court for your release but she did so anyway!  With her on your side - not to mention the "dream team" of volunteer lawyers - how hard could it be?

Well, it turns out, a lot harder than it sounds.  Missouri law does not spell out any way for you - at this point in your case - to bring it back into court for another look.  Your lawyers tried to solve that problem by filing a petition for a writ of habeas corpus with the Missouri Supreme Court.  The Court denied it.

How about a pardon by the governor?  So far, the governor has not granted a pardon and it looks unlikely.  Almost 3,000 clemency petitions await consideration by Gov. Mike Parson, and he told a reporter that yours was not a priority.

Despite the setbacks, your lawyers don't give up.  The prison holding you is in DeKalb County, so they file a petition in that county's circuit court. The court schedules a hearing to begin on August 12.

But the Missouri Attorney General opposes.  His office files a pleading arguing that you are guilty, suggesting that you tried to tamper with a witness.  The attorney general also seeks a postponement of the August 12 hearing.

The Missouri Attorney General's office has a history of being hardnosed in exoneration cases but in this instance the AG is acting particularly strangely.  The AG has served a subpoena on the Kansas City prosecutor, and it is shocking.

The subpoena demands that the Kansas City prosecutor turn over records of all communications between her office and other officials who want you freed, including the mayor of Kansas City.  The subpoena also requires the production of communications between the prosecutor's office and local news media.

How do those records relate in any way to the question before the court, the question of whether you committed the murders?  The fact that the attorney general would subpoena clearly irrelevant documents raises a serious question about his motivation.

But the court did postpone the hearing.  It's now set to begin on November 19.

However, you may not have to wait that long. The governor has signed a new criminal justice law and it takes effect later this month.  This law specifically authorizes a prosecutor to ask a court to overturn the conviction of someone who has been wrongfully convicted.

Prosecutor Baker no longer will be limited to filing a supporting brief but will be a full party.  She  is preparing to go into court on your behalf the day the law takes effect.  I'm betting she wins. Hang in there! 

by K. W. Locke

When Kyle Shoulta and his girlfriend, Remy Riley - both 18 - began driving from Tampa to Fort Lauderdale, they likely didn't imagine they would be forced to take off their clothes in the Everglades.  They headed south, then turned east at Naples, where Interstate 75 becomes a toll road and goes straight through wetlands and swamp.

Travel advisers caution to fill your gas tank, and use the restroom, before embarking on this 80-mile stretch, known as "Alligator Alley."   You will drive for miles without seeing a service station although, about halfway, on the Miccosukee Indian Reservation, there's a convenience store where you can buy snacks and gas.

After the couple left the Interstate to fuel up, a Miccosukee Tribe police officer pulled them over, reportedly for running a stop sign.  The cop found alcohol and marijuana and offered the teenagers a deal.  To avoid arrest, they could take off their clothes and run naked.

Deciding against jail, they followed Martinez to a remote area, got out of their car, and then their clothes.  That was in August 2016, but Martinez would see them again 3 years later, this time fully dressed, when they testified during his trial for extortion.

Shoulta told the jury that, given the choice of going to jail or taking off his clothes, he opted for running around naked.

It may have been a more difficult decision for his then-girlfriend.  Riley testified that she removed her pants and shirt in front of the officer and then "I kind of looked at him like 'is this enough?' He's like, 'That's it?'"
 

She turned her back and finished undressing.  "Then, I ran in the opposite direction holding myself ," she said, and continued to hold herself when she ran back.  "While I'm in the middle of holding myself, he's like, Move your hands away from your body so I can see."

The jury found Martinez guilty of extortion and unlawful compensation and the court sentenced him to 10 years in prison.  Martinez appealed unsuccessfully.  Last month, the time came for him to start doing time.

Reportedly, Martinez may have been less than a perfect officer even before he coerced the teenagers to undress.  However, the Miccosukee Tribe's police department itself has a strange and alarming history.

It's difficult to get current information on the size of the Tribe's police department because personnel change so often.   A Department of Justice report indicates that it had 30 sworn officers in 2003.  A more recent report, from www.police1.com, indicates there are 38 officers.  

Even 30 sworn officers would seem like a lot, considering that the Miccosukee Tribe itself has only about 550 or so members.  However, the Tribe owns a resort and casino near Miami, so it certainly can afford that large a police force.

A decade ago, 21 Miccosukee officers signed a petition calling for the investigation of a police sergeant.  The Tribe fired 7 of the officers and the interim police chief.  Two years later, the department discharged four officers and a fifth, reportedly fearing she would be terminated, committed suicide.

In 2018, some Miccosukee police officers, pursuant to a tribal court's order and accompanied by Miami-Dade officers, went to a hospital 30 miles away from the reservation and seized a newborn baby over the objections of the mother, who was a member of the Tribe.   Although the Tribe returned the baby to the mother days later, the incident sparked criticism, including from U, S, Senator Marco Rubio.

Earlier this year, a Miccosukee officer was driving on I-75 when one of his tires blew out.  The patrol car rolled several times, fatally ejecting the officer.  He wasn't wearing a seat belt.

But the Tribe's problems go beyond its police department.  At one point, the Tribe hired lawyers, including a former United States attorney, to provide tax advice concerning revenues from the casino.  Some of the Tribe's leaders claimed that the lawyers advised them that they did not have to pay certain income taxes.  (The lawyers said their advice was misunderstood.)

Then, the IRS showed up asking, in effect, "where's our money?"

Tribal leaders fired the lawyers, then hired another attorney to sue the previous lawyers.  The new attorney did bring suit, claiming that the previous lawyers had conspired with the Tribe's previous chairman in a kickback scheme.  

However, a federal judge found that the Tribe had "no evidence or only patently frivolous evidence" to support the suit and threw it out.

The Tribe also had this same lawyer sue another of its former attorneys.  This suit also lacked merit.

Later, the Florida Supreme Court disbarred the attorney, and not just because of the frivolous lawsuits he filed.  The errant lawyer also had made wild accusations.   For instance, he accused another attorney of sprinkling pistachios and peanuts on the food of a law clerk who was allergic to nuts.

The lawyer only got disbarred.  He didn't wind up in prison for 10 years like former officer Martinez.  But I wonder:  Didn't his frivolous lawsuits cause just about as much damage?

I'll have to think about that, but one thing is clear.  Anyone allergic to nuts should avoid this tribe whenever possible.           

 

Banner based on photograph of alligator in Alligator Alley by David Balmer; aerial photo of7 I-75 "Alligator Alley" by Formulaone.  Both photos and map of Florida from Wikimedia Commons