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Be careful when you go 10-8:  Tampering with Evidence by Cutting the Camera?

I am old enough to remember the days before police video.  I vividly remember the very first camera installed in my patrol car.  In fact, I’ve never even worn a body camera.  Even though I haven’t experienced that level of oversight, I’ve always been a proponent of cameras for police.  I believe that these devices protect law enforcement and mitigate the frequency of frivolous accusations.  They also often provide very good evidence to help resolve criminal cases without a trial.  Despite law enforcement making these great strides to be transparent and document activity, it seems more and more common that the same tools utilized in that effort are turned against them unjustifiably.  I am saddened to watch our society’s attitude toward law enforcement shift into an all-out assault.  This case is one example. 

Background:

 In November of 2018, deputies in Harrison County, Texas, responded to a disturbance involving family violence and alcohol and ultimately arrested a very combative suspect.  During transport, officers were made aware of the defendant’s demeanor and several deputies converged on the sally port to assist in maintaining control.  During the transition out of the patrol car, a scuffle ensued, and the handcuffed defendant was struck several times by Harrison County Deputy Charles Dodson. 

The Texas Rangers investigated the incident and ultimately Deputy Dodson was charged with Aggravated Assault.  During the early stages of this investigation, it became clear to the elected District Attorney Reid McCain that there may be a companion civil rights lawsuit also being pursued.  As the elected District Attorney represents the County in civil matters, this created a potential conflict for him to prosecute a litigant that he may also have a responsibility to defend civilly.  As such, he filed a motion to recuse his office and requested an Attorney Pro Tem take over any prosecution related to the alleged assault. 

Attorney Pro Tem

The Attorney Pro Tem appointed was John Moore, a local criminal defense attorney out of Longview, Texas (a former Dallas Police Officer).  Mr. Moore reviewed the evidence and presented the case to a grand jury.  Mr. Moore took the position that one of the backup deputies had obscured (and a short time later deactivated) his body camera during the incident, and as such, presented a second case to the grand jury on our Member Deputy for Tampering with Physical Evidence.  Our Member Deputy was represented by TMPA regional attorney Paul Robbins in the federal civil rights lawsuit.  I was recruited to assist Mr. Robbins in defending the tampering indictment. 

The Controversy

Our Member Deputy was indicted for Tampering or Fabricating Physical Evidence under Penal Code 37.09 (d) (1) alleged to have occurred on the 22nd day of November, 2018.  Under Penal Code Section 37.09, captioned "Tampering With or Fabricating Physical Evidence," a person commits a third-degree felony if, knowing that an offense has been committed, he "alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense".  TEX. PENAL CODE ANN. § 37.09(d)(1)

It is relevant to note that our Member Deputy did what many officers would do when put in the precarious position of being subjected to misconduct by a colleague.  He washed his hands of it and walked away.  The entire event was over in four seconds, the suspect was in the custody of detention officers, and he went 10-8.  He wrote his report and submitted his body camera as evidence. Although there was no evidence to suggest intent to conceal evidence of a crime, the Attorney Pro Tem was not persuaded and seemed content to carry the matter forward to trial. 

As a former officer, one might think that Mr. Moore would be receptive to the obvious.  Officers see things from different perspectives during a critical incident.  It is not prudent, nor common for an officer to intervene during a police shooting (for example), even if that officer is unaware of the circumstances that give rise to the deadly force response.  The Attorney Pro Tem was unpersuaded and suggested that our Member Deputy’s failure to intervene was somehow evidence of his intent.  He proceeded to seek an arrest of our Member Deputy, who at that time was overseas working an explosives detection dog under a defense department contract.  We requested the warrant be lifted to allow re-entry into the country without arrest and arranged for his voluntary surrender.   

The overbroad and incorrect interpretation of this statute by the Attorney Pro Tem in this case presented a very slippery slope for Texas law enforcement.  However, a person’s intent is a fact issue for a jury, so the common-sense argument would have to wait for trial.  We needed a quicker strategy to cripple this prosecution before trial.    

The prosecutor’s theory of culpability was flawed.  Even if an officer had the requisite intent to impair a video’s availability to be used as evidence, the conduct alleged prevented the capture of video footage rather than conceal, alter, or destroy an existing or tangible item of physical evidence.  Section 37.09 criminalizes the concealment, alteration, or destruction of physical evidence, not the subjective notion of what may later become evidence.  The prosecutor’s unconscionable position could potentially criminalize conduct as innocent as switching off a microphone to take a personal phone call during a patrol shift. 

Unable to resolve the case by agreement, we timely filed a Motion to Quash the Indictment.  The outcome of that hearing was uncertain as the Judge could simply take the position that this was a fact issue for the jury and the case would proceed to trial.  The hearing was finally scheduled for pretrial on August 20, 2020.  We arrived at the hearing overprepared and eager to present our argument to the Judge.  The prosecutor filed no pretrial motions or responses to our motions or briefs.  Even more surprising was the absence of an order appointing Mr. Moore as Attorney Pro Tem in the Court’s file.  We made the Court aware of the error and objected to Mr. Moore announcing for the State.  Mr. Moore attempted to correct this issue by asking the Judge to appoint him that day.  As a result, our Motion to Quash would be sidelined while we litigated a different issue.    

The Pro Tem Problem

The Grand Jury for the County of Harrison, State of Texas in the JULY-DECEMBER Term, A.D. 2019, of the 71st Judicial District Court returned an indictment against our member Deputy for Tampering/Fabricating Physical Evidence (Penal Code 37.09 (d)(1)) on December 19, 2019.  The Harrison County District Attorney recused himself in this case on August 20, 2020.  (Realizing that he had only recused himself on the Dodson matter, Mr. McCain filed his motion in this case on the day of our pretrial hearing).  Since the inception of the Dodson case, Mr. John Moore had been purporting to act on behalf of the State in this prosecution.  The Texas Code of Criminal Procedure Article 2.07 is the statute that governs Attorney Pro Tems.  The old statute read as follows:

Art. 2.07. Attorney pro tem

(a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney (emphasis added) to perform the duties of the office during the absence or disqualification of the attorney for the state.

TEX. CODE CRIM. PROC. ANN. art. 2.07 (Vernon 1977 & Supp. 2004-05).  However, effective September 1, 2019, the new statute took effect governing who may be appointed as an Attorney Pro Tem. 

Art. 2.07. Attorney pro tem

(a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of the attorney’s office, or in any instance where there is no attorney for the state, the judge of the court in which the attorney represents the state may appoint, from any county or district, an attorney for the state (emphasis added) or may appoint an assistant attorney general to perform the duties of the office during the absence or disqualification of the attorney for the state.

The legislature clearly intended to limit eligible attorneys for Pro Tem appointments by changing the language from “any competent attorney” to “from any county or district, an attorney for the state.”  This new law took effect prior to the indictment in this case and required the appointment of an Attorney Pro Tem from a county or district attorney’s office or from the Office of the Attorney General.

The Result

We got a new prosecutor with no ulterior motives and a truly unbiased perspective.  Cass County District Attorney Courtney Shelton took over the case and shortly afterwards, it was dismissed.  In a carefully crafted memo, Mrs. Shelton cited the Rotenberry case (one of the main authorities cited in our Motion to Quash) and opined that, “The defendant did not conceal physical evidence. In fact, he turned over the physical evidence, his body camera video. While he did cover the body cam as it was recording, this was concealing information as in Rotenberry. There was no physical evidence at that time. This is largely an issue of first impression and as the current statutes are not written in a way to cover this conduct, the issue at hand is one for the legislature and not the courts.”

The Takeaway

Lesson #1:  The Texas Legislature did law enforcement a huge solid by amending the Attorney Pro Tem statute.  The potential conflict created in this case is common when officers are sued civilly and criminal charges could stem from the same conduct.  By amending this statute, the legislature effectively kept these cases in the hands of true public servants instead of a random local lawyer with an hourly bill and an axe to grind. 

Lesson #2:  The issue presented in this case is still unresolved.  It will take a successful prosecution and an appeal before we will know for sure whether these facts could rise to the level of a criminal conviction.  We never reached the issue of intent in this case because, like DA Shelton correctly articulated, there was no existing evidence with which to tamper.  At trial, the evidence would have shown that our Member Deputy had no intent to cover his camera or impair its availability for court.  But, in a society where seemingly half our population support defunding the police, a fair and impartial jury for an officer is a tall order.  Suffice it to say that we are happy this matter will not be the test case. 

My position and advice will remain unchanged that deactivating a recording device does not meet the elements of Tampering with Physical Evidence.  (Although these decisions could have adverse effects on the ability to prosecute offenders) A detailed, well drafted body camera policy reviewed and approved by the local County or District Attorney should be sufficient to curb potential exposure.  However, until the legislature or the Courts weigh in, Texas law enforcement officers have yet another issue about which they should remain aware.         

 

Kenneth M. Biggs

Kenneth@BGLawTexas.com