Before her struggles with drug addiction, Latoshia Suzette Clark was a licensed nursing assistant who had lived in Houston, Texas, for almost all of her life. In September of 2011, 36-year-old Clark was arrested for drug possession, assigned a bail amount she could not pay, and consequently tossed into the overcrowded Harris County Jail, where she languished for nearly a month without medical treatment for her AIDS. Six weeks after being admitted to the Harris County Jail, Clark died.
Clark was just one of the thousands of victims of a Harris County policy to enforce so-called “trace” arrests—felony arrests made on the basis of the possession of less than 1/100th of a gram of drugs: basically, the residue on a crack pipe or one crispy leaf dangling in a baggie.
A substantial number of jurisdictions in America have come to the conclusion that the so-called “war on drugs” is costly and ineffective. Many conservatives, liberals, and medical experts agree that addiction should be viewed as a public health issue rather than a criminal one. President Obama called the war on drugs “very unproductive” and has commuted over 500 sentences for nonviolent drug offenses.
In Harris County, however, people of color like Clark are arrested and booked into the overcrowded Harris County Jail for the crime of possessing infinitesimal amounts of illegal drugs. Under Texas law, these stops and arrests are perfectly legal, but it looks like November 8’s election for the district attorney of Harris County may come down to this vestige of the drug war: whether to bring Harris County in line with the rest of the country, or whether to continue a policy that has little to do with public safety.
Devon Anderson, the sitting DA for Harris County, was appointed to her position in 2013 after her husband, Mike Anderson, unexpectedly died. She then won the 2014 special election against her current opponent, Kim Ogg, in part based on her promise to maintain her husband’s fealty to felony trace prosecutions and other tough on crime measures.
In fact, Mike Anderson brought back the trace prosecutions after his predecessor Pat Lykos (also a Republican) ended them. When Lykos decided to make possession of trace drugs a misdemeanor, punishable by a fine rather than jail, there were 50 percent fewer people arrested for felony drug possession in the county that year and the county saved money, no joke in a place where 70 percent of the budget goes to catching and punishing criminals. Contrary to some fears that reducing felony arrests would cause skyrocketing violence, crime in Harris County dropped. Lykos’s logic was that officers were better off solving violent crimes than spending two days working a trace conviction. It was also just more fair—trace amounts are so small that they are used up in testing, so there’s often no opportunity for the defendant to retest the substance in the case of faulty results.
In fact, very few people were upset about the reduction of trace prosecutions—not judges, not Republicans, not community leaders. But, the police union vehemently argued against Lykos’s new policy and threw their support behind Mike Anderson when he promised to bring trace prosecutions back.
Now, once again, trace prosecutions return to the spotlight in part because the Harris County jail is overcrowded and because the practice tends to injure those who are most vulnerable because they are unable to make bail. (As another point of contention, bail is fixed in Harris County, regardless of one’s ability to pay. Seventy percent of people in Harris County jails haven’t been convicted of a crime.) According to a report prepared in March 2016 for the mayor of Houston on the Transition Committee on Criminal Justice, 25 percent of those in jail for misdemeanors were unable to afford a bail of $500 or less.
Anderson’s short tenure as district attorney had been fraught with one political disaster after another. There was the rape victim that she threw into jail over the summer and made false statements about, claiming the woman was “homeless” (she wasn’t). This victim is now suing Harris County over her treatment, which included been accidentally marked as a sex offender—not a victim— while an inmate, being abused, and having her head bashed against the floor. According to her lawsuit, she was also denied medical treatment for her confirmed diagnoses of schizophrenia and manic-depressive disorder. While Devon has now said that she regrets the incident, she doesn’t regret her decision and instead released an awkward video statement that she “will always put victims first.”
Then there were the racially charged comments Anderson made following the shooting of Deputy Sheriff Darren Goforth, who was killed at a gas station in August of 2015. The day after Deputy Goforth’s death, Anderson made a public statement placing the blame on the Black Lives Matter movement, arguing that “it is time for a ‘silent majority’ to support police.” She inflamed tensions further by stating that “a few bad apples…does not mean there should be open warfare declared on law enforcement.” But, once the investigation actually occurred, it found that Deputy Goforth was not on duty that day but instead was meeting a love interest.
But what may cost her the election is the “win at all costs” mentality that has dominated the Harris County DA’s office for decades. With a long reputation for cruel justice, the Harris County DA’s office has had a succession of prosecutors who were not friends of mercy. A report by the Fair Punishment Project at Harvard Law School points out that Harris County has long been a outlier in terms of death sentences, even in a killing state like Texas. Johnny Holmes, who served at the Harris County DA for over two decades, sent at least 200 people to death row during his tenure. Holmes, who was known for his handlebar mustache and police radio to monitor ongoing murders, was also named by the Fair Punishment Project as one of the DAs who oversaw the most death sentences in America. Anderson herself tried to send someone with an IQ in the 70s, considered in the intellectually disabled range, to death row.
Anderson (like her husband) came into their political prime under Holmes’s tutelage and is schooled in his ways, which seems to have influenced her decision to defend her colleagues when prosecutions are seriously flawed. For example, Kelly Siegler, a Harris County prosecutor with decades of experience who quit in order to become a TNT star (her show Cold Justice was cancelled this year), has already been accused of misconduct several times by the courts, most notably when she reenacted a murder in front of the jury by rolling a bloodstained bed into the courtroom, straddling her colleague in her stiletto heels, and demonstrated how she believed Susan Wright stabbed her husband to death.
The case of David Temple, though, raised new eyebrows when the judge documented 36 instances of misconduct by Kelly Siegler in the prosecution of a football star for the death of his wife. (Siegler has argued that the Brady rules—which govern the requirement that the prosecution give the defense evidence—did not require prosecutors to turn over evidence if they didn’t think it was credible; this rule has since changed.) In the 19-page opinion, the appellate judge found that Siegler had intentionally concealed evidence, including never-disclosed witness statements and 400 single-spaced pages from a report. Anderson has not made any indication that she thinks the case has serious flaws.
Linda Carty, another death-row inmate prosecuted in Harris County for conspiring to kidnap and murder a woman and steal her baby, still faces execution, despite the fact that prosecutors admitted they destroyed evidence and hid witness interviews. A retired DEA agent claims he was blackmailed into testifying against Carty by the prosecution in addition to a key witness. Both of these prosecutors still work for Anderson in the office; they are now supervisors. (One of the lawyers worked with Kelly Siegler on the David Temple case.)
Duane Buck, another infamous case out of Harris County, was convicted in 1997 for the murder of his former girlfriend and her friend and was sentenced to death based on racially biased testimony arguing that Buck would be a future danger because of his race. The case went before the Supreme Court this term, but Anderson continues to stand by the conviction and hasn’t made a move to argue in favor of a new sentencing hearing.
She’s also refused to admit error in the case of Alfred Brown, a man who was freed after 10 years on death row because a homicide detective found missing phone records, in a box in his garage, that showed that Brown was actually innocent of the crime. Instead of admitting the mistake, Anderson said that she wanted to retry Brown, but decided she lacked evidence and dropped the case.
She told reporters following her dismissal of the charges against Brown: “We re-interviewed all the witnesses. We looked at all the evidence and we’re coming up short. We cannot prove this case beyond a reasonable doubt, therefore the law demands that I dismiss the case and release Mr. Brown.” She also will not use the term “exonerated” for Brown and has said she will not investigate the detective who hid evidence, instead arguing it had been “inadvertently misplaced.” Anderson even added that, because there was no statute of limitations for murder, she could still try Brown if she got the right evidence. (The National Registry of Exonerations says Brown fits the definition of “exonerated”).
All this is why the new revelation of the destruction of evidence should be viewed with more skepticism; it signals the depths that prosecutors will go to cover their tracks and defend their tough-on-crime record.
This summer, defense lawyers discovered that Harris County Deputy Chris Hess, who was the sole property manager in his precinct, destroyed over 21,000 pieces of evidence, dating back to 2007. His excuse, according to a local news report, was that the relevant rule “doesn’t say you can’t.” It looks like he was cleaning the evidence room, destroying drug as well as “syringes, scales, bongs, a coffee grinder, a woman’s purse, two diapers, pink baby bottles, guns and large quantities of ammunition.” Hess has been fired and there’s an ongoing criminal investigation.
It appears that Anderson knew about the fiasco as early as March, but said nothing, allowing cases to plea out and go to trial knowing that key evidence had been obliterated. (According to the Houston Press, the problem was uncovered only because two defense attorneys found that the drug evidence in their client’s case had been destroyed—just before he took a 25-year plea deal for meth possession.) The constable of the precinct has bounced the issue of illegality back to Anderson’s office, according to the Houston Chronicle: “Was there a gross violation of the law? I’m going to let Devon or whoever is doing the investigation figure that out.”
Early last month, Anderson announced that 142 cases needed to be tossed and a thousand could be affected. There’s still the possibility that more people will be freed if a link to the destroyed evidence is found. Some attorneys are calling for the federal government to intervene and assess just how dire the damage is.
While it’s unclear whether a change in leadership will lead to the resolution of any of the issues facing Harris County, it’s a sign of the times that Anderson may lose her election because of them. Earlier this year, I wrote about Angela Corey, another tough-on-crime prosecutor who lost her race, in part, because she padded the cushions for those who supported her and threatened everyone else with the maximum penalty. While laws allow prosecutors to seek the toughest sanction, they increasingly do not, because it’s bad policy. As several other outlets have noted, the recent ousters of Anita Alvarez and Corey may be signs that the tides are shifting.