Friday, May 25, 2012

Corruption on Steroids” – Texas Harris County DA

This is an EmPac Texas article reprinted with permission.  Due to storage limitations, you should link over to the EmPac Texas site to read the article and be able to view the documents linked throughout.

A number of our readers have contacted us regarding access to the source material we used for our upcoming series on the Harris County District Attorney’s office, “Corruption on Steroids”.  After some discussion, we decided that the best way to handle the majority of the requests was to post a number of examples of our research methodology and field any other specific questions.  Our readers that still need access to the entire volume of our source material can still make an appointment to come by the office.

Base Research Example:

The subject of our first example is Sean Tyrone Johnson.  We first received a tip about these records from a contact that we developed over a couple of years.  Since the County records are indexed under SPN numbers and the State records are indexed under SID numbers, the first thing we did was pull all the records referenced by those numbers.  This is a subset of those records that can give you a good idea of how we start the process.  Here’s an example of the research summary sheet.  You’ll need to reference the summary sheet as we walk through the records.  Finally, you might want to print out a copy of Mr. Johnson’s criminal history to reference as well.

If you look at the upper right corner of the summary sheet, you’ll notice a field called “Fraud Flags”.  Different than simply clerical errors, “Fraud Flags” are an indicator of the number of items in the subject record that may have been criminally tampered with when weighted against other evidence in the record, conflicts with DPS records, conflicting or impossible date information and compliance with Chapter 60 of the Texas Code of Criminal Procedure which mandates particular actions on the part of the arresting agent, prosecutor and court.

The next section lists the different names that are associated with the subject’s SPN.  These are not simply aliases, but a deliberate obfuscation of an individual.  You only need to look at the first two entries where the first is a young black man and the second a white male five years his senior.  More on this later.

The next section lists the complaining witnesses.  An enormous effort is made to track down each witness and verify with them “real time” if they were, in fact, a complainant in the particular criminal matter.

The next section images every signature specimen from the subject in the record so that they can be compared.  The same holds true for the final section which images every judicial signature in the subject records for comparison.

This particular subject record is interesting for the dates of arrest and conviction.  It would have been impossible for many of the arrests to have occurred as Mr. Johnson was still in jail from the previous arrests.  If you calendar plot each of the offenses from arrest to conviction, only about three of arrests could have actually occurred.

We’ll get back to Mr. Johnson after we’ve had a chance to analyze a few more subject records.   Make sure you check back over the next couple of days.  We’ll be posting a couple of subject records which involved pushing deliberately falsified records up to DPS and NCIC under Racheal Palmer’s direction.

Research Outside the Record:

Samuel M. Skipper is the subject of this example.  Mr. Skipper apparently leads a charmed life in that he has managed to chalk up at least 4 DWI’s while at the same time somehow managing to have the First Court of Appeals enter final disposition findings of “non-adjudication of guilt” on at least 6 other charges.

One of the main issues researchers of these kinds of constructed and fraudulent records has do deal with is the very absence of the records themselves.   This obviously comes at no great surprise as covering the trail of criminal tampering would be pretty important for the folks committing those crimes.  That requires the researcher to go outside of the records to public databases that buy their data from the Texas CJIS system through Austin.  It is EmPac Texas policy that data collected from public databases must be verified from another independent source before being cited in articles appearing on our site.

Let’s start out with what we can find in the record, Skipper’s latest charge of Impersonating a Public Servant - a Texas Ranger to be more exact.  On first examination of the county records we notice that there is no information ever filed in this matter and the indictment was filed on July 14th, 2011.   We also took note that the file date stamp on the complaint is a hand stamp.  Taken by themselves, odd but not significant.  Things become interesting when we take a closer look at the indictment.  We note that there is no “Book” and “Page” number for us to cross reference.  However, the most telling item to note is the signature of the Grand Jury Foreman. What you are seeing is a flipped mirror image of a signature.  Thus we conclude that this is a fabricated document created specifically to simulate a legal process, the end result of which was to have the matter dismissed.

The rest of Skipper’s Harris County criminal history is void of documents.  It was when we turned to the public databases that we discovered DWI’s which appear to have never been disclosed to the three Harris County courts in which Skipper appeared allowing him to appear as a 1st time offender.  This becomes significant once you understand how repeat offenders are identified.  After arrest, you are electronically finger-printed on an AFIS system which immediately checks to see if you have ever been arrested before.  If you have been, your unique SID number is sent back to the booking staff along with your identifying information.  If not, you are assigned a new SID number.

You are left with assuming that the previous arrest information was obscured.  Dig a little deeper and you find six (6) very strange final disposition findings of “non-adjudication of guilt” from the First Court of Appeals.  There are a great deal more issues at play in Skipper’s records that we detail in our upcoming series about the Harris County DA’s office, “Corruption on Steroids”.  For our purposes here, this covers the basics of our public record methodology.

Hunting down tampering with DPS Records:

For this example we’ll be turning to the DPS records, or lack thereof, for one Ruben E. Diaz.  While this one actually contains relatively few records, its implications are staggering.  But before we move on, we need to understand a bit more about the Texas CJIS system.

In 1989, the Legislature mandated enhancements to the Texas CJIS system.  These enhancements included the use of an incident tracking number (“TRN”).  The TRN is a unique number assigned to a specific person during a specific arrest and along with the State Identification Number (“SID”) provides for tracking the arrest, custody status, court disposition and sentence resulting from each offense.  For our purposes in this example, the SID number is what we’ll be focusing on.  It is important to understand that only DPS can assign a SID and SID’s are only assigned to a single identifying set of fingerprints which uniquely identify an individual.  Because you only have one set of fingerprints, you can only be assigned one SID.  To bring it full circle, if you have a SID, its because DPS has your fingerprints.

Here’s how it works.  When you are arrested, you are fingerprinted on AFIS (Automated Fingerprint Identification System).  The AFIS system immediately transmits your fingerprints to DPS in Austin where they are checked against every other set of prints on record.  If no match is found, a new SID is created for you.  If a match is found, your existing SID is retrieved and transmitted back to the booking staff along with your complete criminal history.  In either case, the entire process take only a few minutes.

Turning back to our example, let’s look at a few simple documents.  Based on the criminal history on page one, we don’t have to look at any other documents to know that Mr. Diaz has been arrested more than once.  Thus, we know that he must necessarily have been assigned a SID number.   If we look at page two, we can verify that Mr. Diaz was indeed assigned a SID and that indeed, his SID is consistent as he moved from conviction to conviction.    In this case, gives us his SID number of 07837256.   Remember that acquires their data from DPS.  The very fact that Diaz has the same SID for each of his convictions confirms for us that after initially being assigned a SID following his first arrest, when he was printed for each successive arrest, DPS matched the prints to an existing record and sent his existing SID back to the booking officer.  So far, so good.

Its when you get to page three that everything falls apart.  Page three is a copy of one of Mr. Diaz’s arrest records as it currently exists with DPS.  The DPS information tells us that this record is for the arrest and prosecution in cause number 1099487.  We can verify on page one that Diaz was convicted in this cause number and from page two that his SID was part of the record when he was sentenced.  However, the DPS record on page three does not list a SID.  Further, if we read the top of the page we can see that there are also no fingerprints associated with this record.

We already know from what we’ve learned that this is impossible.   In fact, according to the various users manuals available in the resource section of our site which include the DA’s intake procedures, the DA’s operating manual and the operating and users guides for the Texas CJIS system,  it is impossible to even file charges until an individual is printed and assigned a new SID or matched with an existing SID.  In fact, based on the existence of a TRN in the DPS record, we can conclude with a good degree of certainty that someone has criminally tampered with the DPS record we see on page three.

Our conclusion is elevated to an absolute certainty after examining Mr. Diaz’s remaining DPS records and finding that they too no longer have his assigned SID or corresponding fingerprints.
What you are seeing on page three is the result of someone deliberately tampering with the very criminal records that Texas and Federal authorities rely on to keep us safe.  By separating the fingerprints from the arrest records, there is no way to verify whether or not an individual has a dangerous criminal history, should be allowed to buy guns, should be required to register as a pedophile instead of teaching or working with children, is known to be criminally violent or is now able to pass any number of background tests required to obtain any number of professional licenses in the State of Texas.  In effect, someone has granted Mr. Diaz a free pass.

That this type of alteration is possible and can occur without the knowledge of the convicting court, the arresting agency or even worse, the crime victims themselves, is alarming.  The idea that violent criminals, through payment or political favor, can have their records effectively expunged through this type of tampering is disturbing.  Given that DPS pushes records up to the FBI’s NCIC system, the implications that this type of criminal behavior has on the the Justice Department’s ability to administer the federal system of criminal justice is alarming.

Given the availability of the audit information which logs every action and keystroke of individuals logged on to the Texas CJIS system, identifying the source of the criminal tampering is an academic task and someone needs to be brought to answer.  Because a number of federal agencies such as the US Marshals and Homeland Security rely on these records to secure our boarders and airways, the parties responsible for this tampering should be made to answer under the Patriot Act.

District Judge Jaclanel McFarland Advocates Anti-Gay Bias Intolerance | EmPac Texas

Advocating an intolerance of homosexuality, that gay people are inherently evil, Judge Jaclanel McFarland reminds Harris County that today’s black robes of justice are not that far removed from yesterday’s white sheets of hate.

This is an EmPac Texas article reprinted with permission.  Due to storage limitations, you should link over to the EmPac Texas site to read the article and be able to view the documents linked throughout.

Most of the time a judgment from a court is just that, the court’s opinion on the merits. However, occasionally a court’s judgment stems from an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from his participation in the case1 – like publicly advocating a position of intolerance of homosexuals and a position that gays are inherently evil and not on an equal footing with “normal” Christians. Enter Judge Jaclanel McFarland.

Before getting into Judge McFarland’s issues, you’ll need a little background. This past July, two guys in a domestic partnership filed an expunction matter that was assigned to the 133rd District Court. These guys learned from a September 28, 2011, letter from the District Attorney (“DA”) that their criminal history records maintained by Texas DPS had been criminally tampered with by ADA Rachael Palmer and ADA Julie Klibert with the Harris County District Attorney’s Office. The DA was now a material witness in the matter and the two petitioners filed a motion to disqualify the DA. This motion was followed by an amended petition filed in late November 2011 which included a collateral attack on the underlying preceding and finally alternative pleadings filed on March 9, 2012.

The expunction matter was set for hearing on April 9, 2011, at 3:00 P.M. The petitioners discovered shortly before the hearing that Judge McFarland publicly advocates an intolerance against individuals in same-sex relationships. Judge McFarland expressed her opinions on family, religion and church membership from the bench for nearly forty (40) minutes before calling the first hearing on the afternoon docket on April 9, 2012. The petitioners quickly recognized that this was probably the last court before which a domestic partnership ever wanted to appear.

Judge McFarland has publicly advocated a position of intolerance of homosexuals and taken the position that gays are inherently evil and not on an equal footing with “normal” Christians demonstrating a clear judicial bias. Judge McFarland has been an active member of the Baptist General Convention of Texas2 (“BGCT”) for a number of years including serving as the BGCT’s First Vice President for two terms. She has worked tirelessly for years advocating the BGCT’s core beliefs which singles out only one group of individuals to which it is intolerant; homosexuals.3 She has advocated that “[t]he homosexual lifestyle is not normal or acceptable…”4

Judge McFarland was noted by a former President of the BGCT as “one of the impressive young leaders in Baptist life” with a “good grasp of…Baptist Principles.”5 She is noted as making impressive contributions to the BGCT and when asked about her vision on the BGCT’s direction stated:

“I have seen Texas Baptist history, both personally and from studying the writings of our Texas Baptist forebears. We must not lose sight of our heritage. Even as we look to the future and take risks, we can learn from our Baptist ancestors. They valued what we value – the priesthood of the believer, a regenerate membership, the autonomy of the church, a free church in a free world, missions and evangelism. I have teen-aged sons. I want them to live in the Baptist world with the freedom I’ve enjoyed.”6(emphasis in original).

This last sentence of this statement evidences a judicial bias and at its minimum, demonstrates that Judge McFarland is predisposed to rule based on a belief structure that deprives gays of a wide variety of rights.

While serving as First Vice President of the BGCT, the executive board of the BGCT issued a recommendation that further financial contributions from a member church that had ordained a homosexual as a deacon be declined. The board also asked the church to remove the convention’s name from its website and other materials. It was the opinion of the board that homosexuals were not on an equal footing with other Christians and that the BGCT must draw a line “when they are elected to leadership position[s].”7 (emphasis added). In fact, there is no other “sin” which can cost a member church its association with the BGCT except that of homosexuality.

It was specifically because of her adherence to these beliefs that the BGCT twice seated Judge McFarland on the Baylor University Board of Regents which also holds that a homosexual lifestyle represents understandings of sexuality that are contrary to biblical teachings, Baptist beliefs and Baylor’s Christian mission.8

Judge Jaclanel McFarland has espoused the core beliefs of the BGCT in every leadership role she has accepted from the BGCT, assuming her positions after swearing to act in every decision so as to foster those same beliefs. Additionally, she has served on the executive committee of Texas Baptists Committed, an organization principled on the denial of homosexuals of a wide variety of rights enjoyed by “normal” Christians. By accepting and serving in these leadership roles, the Court has publicly acknowledged her ascension to the core belief that “[t]he homosexual lifestyle is not normal or acceptable in God’s sight and is indeed called sin.”9 Such a belief demonstrates an intolerance not of just the “sin”, but of the individual. It demonstrates a belief that simply being gay is inherently evil. And when weighted against the Court’s stated desire to shape a world to fits her beliefs, announces a pre-disposed bias that denies the Petitioners due process and equal access to the courts.

The Hearing

On April 9, 2012, the Court called the hearing on expunction from docket. The petitioners were denied a hearing on their motion to disqualify the DA. No argument or discussion was allowed on the motion. Judge McFarland made it clear that she had not seen or read the motion but nevertheless, denied it on the record. The Petitioners attempted to obtain a ruling on another preliminary matter but were interrupted and thereafter, Judge McFarland would not allow any further argument from the petitioners. McFarland also prohibited the petitioners from even discussing the expunction matter or arguing their petition for expunction and prohibited them the opportunity to introduce evidence in support of their petition.

Judge Jaclanel McFarland

The petitioners were denied a fair hearing because they are gay. Judge McFarland ran roughshod over the petitioners because her “conscience” told her to do so and because she believed that the gay couple standing before her bench were lesser persons not deserving of the rights and dignity due “normal” Christians.

Judicial responsibility is for the regularity of the law, not the regularity of pedigrees.

The Final Orders

The final orders signed by Judge McFarland in the instant case demonstrate a moral disapproval of homosexuality as a consideration when the rights of gay people hang in the balance. Judge McFarland issued two final judgments, each stating, “[a]ll other relief, not specifically granted herein, is denied.” Given that there can be only one final judgment for the purposes of appeal,10 the petitioners are left without an appealable order. Further, to be final, a judgment rendered after a proceeding that is other than a “conventional trial on the merits” must actually and explicitly dispose of all claims and parties, or must state “with unmistakable clarity that it is a final judgment as to all claims and all parties.”11 The “unmistakable clarity” standard is satisfied by a statement that “this judgment finally disposes of all parties and all claims and is appealable.”12

Neither of these judgments offer the Petitioners the unmistakable clarity of finality.
Judge McFarland styles each order separately and incorrectly. The case styles referenced by these orders do not exist. This was a deliberate obfuscation as both Judge McFarland’s order setting hearing and her order denying findings of fact and conclusions at law13 demonstrate the Judge McFarland’s familiarity with the proper style of the matter. Further, by deliberately misrepresenting the nature of the hearing, not as an evidentiary hearing but one based only on the pleadings, Judge McFarland finds purchase in exercising her ability to deny any requests for findings of facts and conclusions of law.

Additionally, both Final Orders incorrectly rely entirely on the records of the County Criminal Court at Law 8 of Harris County.  The orders recite that the trial court determined “that all procedural and substantive requirements for expunction of criminal records regarding Cause No. 1464186 have not been met.”14 (emphasis in original). Based solely on this determination Judge McFarland rules by taking judicial notice of the records of some other domestic court and does so without reference to an evidentiary hearing. While those records were obviously available to the trial court–it based its ruling on them, satisfying itself that the petition’s claims were meritless–the Court apparently ruled entirely on the basis of its judicial notice of another court’s records.

Before courts can take judicial notice of facts, those facts cannot be seriously subject to debate and must be easily ascertainable.15 Judicial records from a domestic court other than the court being asked to take judicial notice, have not been deemed so easily ascertainable that no proof is required; they are to be established by introducing into evidence authenticated or certified copies, respectively, of those records.16 No such records were introduced. Because the trial court’s ruling rested necessarily on its taking judicial notice of unspecified court records from another court, dispensing with an evidentiary hearing would be in error. Moreover, the courts of appeals ordinarily presume that records not made a part of the appellate record support the trial court’s decision.17 But, because the trial court’s judgment was rendered without properly taken judicial notice and without reference to an evidentiary hearing, they are in error.

Both final orders would attempt to mislead the appellate courts that there was no evidentiary hearing. The hearing on April 9, 2012, was, in fact, an evidentiary hearing. These two Final Orders do nothing more than provided an authoritative cover for judicial bias and outright judicial homophobia. They do nothing more than serve Judge McFarland’s well-publicized advocacy of disabling gays of a wide variety of rights based on her belief that homosexuals are inherently evil and not to be placed on an equal footing with “normal” Christians.

Judge McFarland has intentionally obfuscated the appellate path in her effort to shape a “Baptist world.”

The ADA’s, Court Staff, District Clerk Staff and Post Trial Motions

ADA Brian Rose represented the DA’s office in this matter and to even the most casual courtroom observer it was obvious that he and Judge McFarland had engaged in ex parte communication. What was also obvious is that even with the advantage of a bias judge and ex parte communication, Rose mislead the Court regarding the TRO in the 129th District Court and specifically regarding his communications with the petitioners. As it happens, the petitioners recorded every single meeting, telephone conversation, conference room discussion and casual encounter with ADA Brian Rose, Evelyn Palmer, Darla Turner, Julie Klibert, Betsy Wall and others. All of these conversations will be posted here as soon as the transcriptions are finished.
Here is a list of the post trial motions that have been filed in this matter:
Request for Findings of Fact and Conclusions of Law;
Petitioners’ Joint Motion for New Trial
Petitioners Joint Motion for Judge to Disqualify or Recuse.


McFarland departs from the statutory scheme of Chapter 55 which is specifically about the expunction of arrest records. In this departure, Judge McFarland has vested the DA with authority never intended by the Legislature giving the DA the ability to wrongfully charge and arrest an individual for any number of crimes, stack them within a particular cause number, abandon those charges and then forever prohibit the defendants from expunging the wrongful arrests by incorrectly allowing the cause number in the criminal matter to control in matters of expunction.  Under McFarland’s scheme, the DA has new powers with which to brow beat defendants into submission to the will of the State least they be labeled for life with any number of wrongful arrests for heinous and depraved acts.  This is a complete departure from the Legislative intent expressed in Chapter 55 of the Tex.C.Crim.P. which sought to curtail procecutorial authority by providing relief from wrongful arrests and as such makes McFarland’s attempt at judicial activism plain.

  1. Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992); see also Quinn v. State, 958 S.W.2d 395, 402-03 (Tex. Crim. App. 1997); Chandler v. Chandler, 991 S.W.2d 367, 385-86 (Tex. App.-El Paso 1999, pet. denied), cert. denied, 529 U.S. 1054, 120 S.Ct. 1557, 146 L.Ed.2d 462 (2000); Stafford, 948 S.W.2d at 924.
  2. The Baptist General Convention of Texas is the largest Baptist convention in the country with over 2.4 million members. (Church & Ministries, April 22, 2012)
  3. Reference material available in the public domain.
  4. Id.
  5. Id.
  6. Id.; see also Jaclanel McFarland: nominee for first vice president. by Mary Knox, The Baptist Committed.
  7. Id.; see also
  8. Id.; see also Baylor student disciplined for organizing gay-rights march. By Robert Marus, Associated Baptist Press. May 21, 2004
  9. Id.
  10. See Tex. R. Civ. P. 301
  11. City of Glenn Heights v. Sheffield Dev. Co., 61 S.W.3d 634, 641 (Tex. App.–Waco 2001, pet. for review filed Jan. 11, 2002) (Mother Hubbard clause indicated final judgment following partial bench trial and partial jury trial on the merits).
  12. Id. at 206 (emphasis added); see also Kleven v. Texas Dept. of Criminal Justice, 2002 WL 221071 (Tex. App.–Texarkana Feb. 14, 2002) (unpublished) (“This is a final judgment and disposes of all issues and parties in this case”).
  13. On its own, the denial of the Petitioner’s request for findings of facts and conclusions at law could be argued from any number of positions, but here when taken as part of the totality of the Court’s actions, Judge McFarland demonstrates a judicial bias, the purpose of which appears to be to mislead the Appellate Courts and thereby deny the petitioners due process and equal access to the courts.
  14. This cause number is referenced in the Final Order titled Ex Parte Gregory J. Montelaro, the Final Order titled Ex Parte Steven M. Dekker references Cause No. 1464187.
  15. Fender v. St. Louis Sw. Ry. Co., 513 S.W.2d 131, 135 (Tex. Civ. App.–Dallas 1974, writ ref’d n.r.e.); Levlon v. Dallas Ry. & Terminal Co., 117 S.W.2d 876, 878 (Tex. Civ. App.–Dallas 1938, writ ref’d).
  16. Fender, 513 S.W.2d at 135; Adams v. State Bd. of Ins., 319 S.W.2d 750, 754 (Tex. Civ. App.–Houston 1958, writ ref’d n.r.e.).
  17. See State v. Pierce, 816 S.W.2d 824, 831 (Tex. App.–Austin 1991, no writ).

Monday, May 16, 2011

Part III Shielded from Justice: Who Polices the Houston Police

We began this three part investigative series in an effort to expose how the citizens of Houston, the fourth largest city in America, had lost oversight of its police.  Project 143 set out to explore a police department unresponsive to citizen complaints and unaccountable to the public it serves.  What we did not expect was that shortly after release of part one of the series there would follow two major police incidents giving Houstonians first hand experience of how little control they had: the release of the Chad Holley police beating video tape and the April 13 DWI cover-up of Sergeant Ruben Trejo.

Both of these incidents demonstrated that acting under the color of law, the Houston Police Department fosters patterns and practices designed to remove the public’s ability to hold its officers accountable for their behavior.  There is no true citizen review or oversight of the police department and any disciplinary action taken by the department is effectively neutered by Chapter 143 of the Texas Local Government Code through which 70% of the disciplinary actions taken against officers for misconduct is overturned or reduced.
Where public and police officials assured the citizens of Houston that what they saw on the Chad Holley video was an exception, the Trejo cover-up demonstrated that is was instead, the rule.  Contrary to assurances by the city, is has become obvious that this type of behavior is ingrained in the culture of the Houston Police Department.
The Trejo Cover Up
On April 13, 2011, HPD reported that a school bus slammed into an off-duty Houston police sergeant’s vehicle on the city’s east side. “He was in his personal vehicle, off-duty, when the school bus driver ran a stop sign and hit our officer,” said HPD spokeswoman Jodi Silva.  “Our officer was taken to Memorial Hermann with non life-threatening injuries.”  The bus driver was cited but not transported for medical care.

Sgt. Ruben Trejo's Truck
The accident occurred at the intersection of 79th and Harrisburg but as members of the media arrived it was obvious that this was no small accident.  It was also immediately evident that contrary to HPD’s report, it was the officer that slammed into the school bus.
An HPD spokesman on the scene stated that the sergeant was on his way to work when his pickup truck hit the back of a private school bus that ran a stop sign or failed to yield the right of way.
“The preliminary information that we have is that the driver of the school bus who was headed northbound on 78th either ran the stop sign or failed to yield the right of way leaving the stop sign causing a collision with a Toyota truck that was westbound on Harrisburg being driven by an off-duty HPD sergeant,” said Capt. Robert Manzo with the HPD.
But witnesses to the accident stated that the bus did not run the stop sign.  A number of witnesses, including Teresa Argueta, the driver of the bus, stated that they saw open containers in the officer’s truck.  “He smelled drunk.  He got beer and wine open in the truck,” Argueta told members of the media.
The officers on the scene defended the sergeant, later identified as Ruben Trejo, against accusations of drunk driving.  Argueta was instead cited for failure to yield.  When Argueta and others attempted to take pictures of Trejo’s truck they witnessed officers covering the alcohol with towels and were threatened with arrest if they did not move away.  By this point a number of officers had formed a line away from the vehicle and would not allow any one to approach.
Still insisting that there was no alcohol or other illegal substances involved in the accident, Capt. Robert Manzo made another statement to the press.  “We have full confidence in the fact that there would not be any substances of concern found on the sergeant.”
What we now know is that Sgt. Trejo actually had a blood alcohol level nearly three times the legal limit.  We know that he returned to work for nearly two weeks after the accident as if nothing had happened.  Executive Assistant Chief Dirden, who is over the Internal Affairs division (“IAD”), admitted in an interview with Channel 13 that none of the officers on the accident scene, including Capt. Manzo, had reported any information from which IAD could open an investigation.  If fact, it was not until Teresa Argueta, the driver of the bus, and Channel 13 started asking questions that any investigation was opened.
We know that Capt. Robert Manzo and a number of the officers on the accident scene were, in fact, aware at the time that there was alcohol in Sgt. Trejo’s truck based on pictures that were taken of the truck and accident scene.
Given the damage to the truck, the lack of visible skid marks on the road, and the distance the bus was thrown by the impact we can conclude that Sgt. Trejo took no evasive actions.  From the statements in Officer Don Egdorf’s Affidavit, we can also conclude that Sgt. Trejo was likely traveling at an high rate of speed.
We also now know that Sgt. Trejo arrived at the hospital with a blood-alcohol content of .205 – nearly three times the legal limit.  We know that Sgt. Trejo was only minutes from climbing behind the wheel of an HPD vehicle where he was to supervise an entire shift.  We know that Sgt. Trejo was not placed under arrest at the time of the accident or at the hospital.  And finally, we know that Capt. Robert Manzo, the supervisor and ranking officer on the accident scene failed in his duty to report any of this to his supervisors.
This is not the first time we have run across Capt. Robert Manzo in the middle of a cover-up.  In a report on the failure of IAD in preventing officer retribution, then Lt. Robert Manzo took an active role in covering up for an officer under his command who participated in the theft of two vehicles and other personal property totaling in excess of $176,000.  None of the property or vehicles was ever recovered.
We grant the men and women of the Houston Police Department the greatest power that can be granted under our constitution: the power to decide and act to take the life of another citizen.  This is arguably the most profound relationship of trust that a society creates, and it exists for good reason.  Police officers must enforce the law against the most unethical of people. They test their resolve, convictions, intelligence and exhibit great courage – to the point of risking their lives – to do so.   A violation of that trust inevitably results in an immediate chilling and disturbing effect on the public.
Each and every decision Capt. Manzo made on April 13th was a violation of the public trust.  His efforts to cover up Trejo’s crimes began as soon as he arrived at the accident scene.  He used his rank and position to direct the actions of the officers under his command to assist with this cover up insuring the omission of particular information in their reports and eventually falsifying his own report.  Manzo had to be aware that Trejo has been named at fault in four accidents in 1990, 1992, 1999 and 2000.  Yet his intention was to cover up this accident thereby insuring that Sgt. Trejo would be back out on the streets of Houston with an unsuspecting public.

Captain Robert Manzo
Capt. Manzo’s job on the accident scene was to protect the public.  He chose instead to protect his officers facilitating a criminal cover up of Sgt. Trejo’s crimes.  Without any consideration regarding its effect on her livelihood as a bus driver, Teresa Arguete was cited for failure to yield.  Such a citation is an at fault citation shifting the insurance liability for the accident and Sgt. Trejo’s hospital bills and to Teresa Arguete’s policy.
Captain Robert Manzo should be charged with official misconduct for his role in attempting to cover up a car accident resulting from driving under the influence of alcohol.  Additionally he should be charged with official misconduct, conspiracy to commit official misconduct, conspiracy to commit insurance fraud and insurance fraud if Teresa Arguete’s insurance policy pays a claim.
The Trejo charges may not stick
When Trejo arrived at the hospital he was not under arrest and thus HPD did not have access to his blood tests.  Texas law only allows warrantless access to blood tests run by the hospital specific to blood alcohol levels if the driver of a vehicle under suspicion of DWI is transported to a hospital from an accident scene and there placed under arrest.   Because Sgt. Trejo was not placed under arrest, all of his medical records are private and require his actual consent before they can be released.
The privacy of the tests run at the hospital on Sgt. Trejo’s blood alcohol level had an additional benefit for Capt. Manzo in that Trejo’s level of intoxication would never show up to contradict Manzo’s version of the accident.  We do not need to read Manzo’s report to know what information he omitted.  We know this by both by Sgt. Trejo returning to work without any charges being filed against him and from Chief Dirden’s admission on April 25, 2007, that none of the officers on the scene reported any information from which IAD could open an investigation.
Only after Teresa Arguete and a local television station continued to ask questions did HPD finally open an investigation.  On April 25th, nearly two weeks after the accident, Sgt. Ruben Trejo was charged with DWI based on the investigation by HPD Officer Don Egdorf.
This is a copy of the Affidavit given by Officer Egdorf establishing probable cause to support the charge.  The last paragraph of the Affidavit states that the officer requested a Grand Jury subpoena for Sgt. Trejo’s medical records from the hospital where Trejo was treated after the accident.  Those records apparently included a toxicology report establishing Trejo’s blood alcohol level of .205.  EmPac Texas spoke with a DWI attorney who saw a number of potential problems which could result in the charges against Trejo being dropped.
It is clear from the Affidavit that the sole purpose of the Grand Jury subpoena was to collect medical records for Officer Egdorf’s use in his investigation and not to bring documents before the Grand Jury as part of a grand jury investigation.   It is unlikely that a grand jury was even seated and investigating this matter.  As such the subpoena was improperly issued and represents an abuse of process by Officer Egdorf.
The assistant district attorney that signed the subpoena in this case similarly abused the grand jury subpoena power by issuing the subpoena at the sole request of the investigating officer.  The prosecutor’s power to subpoena can not be used as a tool for police to obtain records that require the consent of the patient.  The Texas Legislature has not chosen to vest police officers with subpoena power, and it would circumvent that legislative judgment to allow the police to make use of the grand jury process in order to do indirectly what they cannot do directly.
Actual consent in a DWI case to obtain a blood sample is not constitutionally required where the accused is under arrest.  But Sgt. Trejo had not been arrested.  Thus access to Trejo’s medical records would seem to require Trejo’s actual consent.
A grand jury subpoena is one of the State’s most powerful tools.  The prosecutor and the investigator stepped outside the scope of their authority in abusing the power of the grand jury subpoena which may result in a ruling of an illegal seizure as it relates to the medical records.  Without those records it is highly unlikely that the charges would stand.
A culture of patterns and practices
In the Chad Holley incident, if the video tape never emerged, the officers involved – including those that stood by and did not step in to stop the beating, would have never been called to answer for their part in such a heinous violation of individual rights.  The patterns and practices ingrained in the culture of HPD would have shielded them from justice.
It is those same patterns and practices that allowed Sgt. Trejo to return to work as if nothing had happened until a citizen and a member of the media started asking questions.   Nearly twenty officers and a Captain acted to cover up the crimes of a single officer at the expense of protecting the public.
It has become clear that an ingrained culture of oppression is pervasive in the Houston police department.  That culture directly results from the shelter that Chapter 143 of the Texas Local Government code provides to officers.  Officers know that under Chapter 143, nearly 70% of disciplinary actions are reversed or reduced making it unlikely that they would ever have to answer for misconduct. Chapter 143 allows Houston’s police officers to violate citizen’s civil rights with impunity comfortable that they will not be held accountable for their actions.
When faced with being forced to reinstate two of the officers he fired for their participation in the Chad Holley incident under the authority of Chapter 143, Chief of Police Charles McClelland underscored the basic denial of civil rights in a statement to the Houston Chronicle.  “How can I protect the public?”
Houston, like dozens of other Texas cities, operates under Chapter 143 of the Texas Local Government Code.  After progressives implemented civil service reforms under Chapter 143 in the 1940s and 1950s, Houston voted to adopt Chapter 143 as a mechanism to protect public servants against machine politics.  While Chapter 143 applies to about 75 Texas cities, Subchapter G of the Act, under which Houston operates, applies only to the City of Houston.
Over the past 30 years, police unions succeeded, one step at a time, in convincing the state legislature to change Chapter 143, reshaping it into a legal device which acts to shield officers from responsibility for their actions.   Chapter 143 enables these pattern and practices by removing potential consequences from an officer that acts to violate a citizen’s civil liberties.
Given the strength of the police unions around the state, it is unlikely that Chapter 143 will ever see legislative correction.  It will take a suit in federal court against the city by a citizen like Chad Holley or Teresa Arguete whose rights have been trampled.  Under either the Equal Protection Clause or the due process clauses, where a law infringes upon a fundamental right, the Court subjects the law to close scrutiny.  The Court presumes that a law that restricts a fundamental right is unconstitutional, and the state may only prove that the law is constitutional by showing that the law is “narrowly tailored” to further a compelling governmental interest. This standard is very difficult for the government to overcome.
Given the Trejo Cover up and the Chad Holley experience, it is doubtful that Chapter 143 would survive the Court’s scrutiny.

Saturday, February 12, 2011

Part II: Shielded from Justice: Who Polices the Houston Police?

Part II: Shielded from Justice: Who Polices the Houston Police?

Shortly after Project 143 began this series, the city of Houston experienced first hand the predictable results of a police force unaccountable to the citizens with the public release of the Chad Holly tape. The bottom line is that the Houston Police Department lacks effective public accountability and transparency (open and public sharing of information and documentation) and has repeatedly failed to appropriately respond to officers who have committed such violations.

The Report Regarding the Failure of IAD in Preventing Officer Retribution offers frighting insight into police retaliation against citizens of Houston for filing complaints with HPD’s Internal Affairs. It is also further evidence that this behavior is part of a pattern or practice instituted in the chain of command of the Houston Police Department.

Read the rest of the article at

Wednesday, February 2, 2011

Friday, October 15, 2010

The Human Side of the Forclosure Crises - The Houston Texas Story

Next week I will be focusing on the current foreclosure fraud in an effort to demonstrate the underlying mortgage fraud that the major banks are only just beginning to understand is behind the foreclosure abuses in the market. Before moving to a clinical approach however, I think it is imperative that we understand the type of people that knowingly seize family homes without any proper authority.

The following link is representative of exactly what happens when a real estate agent, motivated by profit, improperly seizes a home. Whether or not their actions are proper, once the agent labels the home owners with the “foreclosure tag,” their rights in the eyes of the authorities evaporate. The home owners become the people that “lost their house,” “were foreclosed on,” “didn’t pay their note,” or any number of other identifiers through which their ability to defend their property is literally removed.

The Houston, Texas, case demonstrates how far police and other authorities are willing to go without questioning real estate agents or their actions. Their use of the word "foreclosure" seems to be the only authority needed. When the home owner showed documents demonstrating the real estate agent as wrong, he was promptly arrested under suspicion of creating forged or fraudulent documents. The unfortunate reality is that once labeled with the “foreclosure” tag there is little that the home owner can offer in their defense on which authorities will act. The Supreme Court delt with this exact issue, point for point, in the landmark case SOLDAL v. COOK COUNTY, 506 U.S. 56 (1992).

In Soldal, Terrace Properties forcibly evicted the Soldal family and their mobile home from a Terrace Properties' mobile home park. Cook County, Illinois, Sheriff's Department deputies were present at the eviction. Although they knew that there was no eviction order and that Terrace Properties' actions were illegal, the deputies refused to take Mr. Soldal's complaint for criminal trespass or otherwise interfere with the eviction. Petitioners brought an action in the Federal District Court under 42 U.S.C. 1983, claiming that Terrace Properties had conspired with the deputy sheriffs to unreasonably seize and remove their home in violation of their Fourth and Fourteenth Amendment rights. After making its way through the appellate courts, the Supreme Court issued the following decision.

“The complaint here alleges that respondents, acting under color of state law, dispossessed the Soldals of their trailer home by physically tearing it from its foundation and towing it to another lot. Taking these allegations as true, this was no "garden variety" landlord-tenant or commercial dispute. The facts alleged suffice to constitute a "seizure" within the meaning of the Fourth Amendment, for they plainly implicate the interests protected by that provision. The judgment of the Court of Appeals is, accordingly, reversed, and the case is remanded for further proceedings consistent with this opinion.”

The case itself is fascinating reading. The Court uses the illegal eviction to define the Fourth Amendment in a context that affects each and every one of us every time we lock our doors at night. Soldal is directly on point with The Houston case and demonstrates how any show of defense of property displayed by the home owner results in his arrest. The home owner in the Houston case eventually demonstrates the fraud in civil court, but not before being arrested for trespass, loosing his home, having his cars, business inventory and personal property seized by the police and real estate agent – none of which was ever recovered.

What the Houston article also demonstrates is the length to which the officers involved will go in order to avoid their part and responsibility. Fortunately, each and every action taken by the authorities in this matter simply serves to toll the statutes under which the victims in this matter will eventually file in civil court.

As disturbing as this case is, it is far from isolated. Next week’s article will touch on many of the players as we explore mortgage fraud as the bases for the current foreclosure crisis.

Thursday, October 14, 2010

Synthetic Identity Theft

Identity theft is a crime through which the perpetrator acts illegally to obtain the available credit of another.

An individual’s available credit represents more real value than its hard currency counterpart. The amount of total available credit an individual has can be traded for services, educational choices, social access, and access to privileges and perks not available to those with less available credit.

Available credit can be exchanged for its hard currency counterpart at any time but the cost of doing so is staggering. Currency depreciates at 7.5% per year immediately impacting the exchange. Consumer products acquired through the exchange realize additional depreciation in value and efforts to free up your available credit comes at the expense of interest and fees. The cost of making the exchange is a personal and weighty decision.

Traditional identity theft is a fraud through which the perpetrator obtains the social security number, date of birth and any other information needed to access and quickly deplete the victim’s available credit and quickly move on to another victim.

However, there is a new type of identity theft only now beginning to be noticed by law enforcement – Synthetic Identity Theft. Synthetic identity theft happens when a thief steals bits and pieces of information from different people and creates a wholly new and unique identity. This usually happens when your social security number is used with a different name, date of birth and driver’s license. Because of all of the mismatched information, detecting synthetic identity theft can be nearly impossible.

Using your social security number (“SSN”) criminals can open new bank accounts, obtain credit cards, mortgages, obtain employment and live in the plain light of day. These accounts and actions never show up on your credit report because credit reporting systems require matching information such as an SSN and name or address. All the different pieces of information confuse and pollute the existing credit reporting and law enforcement systems. In effect a new person has been created with a substantial available credit that the criminal then launders through any number of schemes seemingly with no victim.

However, it can get serious if your social security number gets into databases designed to flag criminals. Unfortunately, the fact that you were a victim of synthetic identity theft usually shows up when a typical background check is done. Your SSN can show that you are accused of the crime. Unlike traditional identity theft, here the different name attached to the number will not automatically prove your innocence and you will be accused of using an alias. You can easily be turned down for jobs, mortgages, club memberships and suddenly find yourself identified as a criminal even if you’re able to prove it wasn’t you.

Synthetic fraud is quickly becoming the more common type of identity fraud, surpassing traditional identity fraud. In 2005, ID Analytics reported that synthetic identity fraud accounted for 74 percent of the total dollars lost by U.S. businesses to ID fraud and 88 percent of all identity fraud "events" -- for example, new account openings and address changes. Unethical mortgage originators have developed this into an art form allowing them to create invisible straw buyers at arms length shielding them from prosecution.

Synthetic identity theft is a very sophisticated crime where perpetrators can spend years cultivating and building the available credit of the new identity. As the bailout of Freddie Mac and Fannie Mae continue, investigators have begun to uncover a massive amount of mortgage fraud. These new identities are being used to buy and sell properties in flipping schemes, double-selling schemes and assignment fraud. The mismatched information typically makes the criminals nearly invisible to law enforcement and, without the clear-cut victim to complain of the crime, synthetic identity fraud represents a major threat to our current economic markets.

Here is a very small example of Synthetic ID's we found from the Department of Motor Vehicles in Texas with little effort. Duplicate names were left in the list intentionally as these represent the same "person" with the same date of birth at the same address with different and current driver's license numbers - impossible in Texas without presenting 2 different SSN's. The majority of the others, regardless of the age, show that their current license is their first and original license. However, the most obvious indicator is that they all apparently reside at the same address.

Synthetic identity theft rewards the criminal at the expense of the tax payer and the economy. We see banks like Sterling Bank out of Overland Park, Kansas buying huge numbers of mortgage loans from mortgage banks in Texas, Florida and other states that turn out to be taken out under a synthetic identities. The properties were overvalued many times over their actual market value – if they existed at all. Many of the loans were simply fraudulent loan packets, the valid loan and security having been prior sold to other banks and a huge number of the loans Sterling Bank purchased immediately rolling into foreclosure. When banks like these inevitably close under the unrecoverable mortgage portfolios, the tax payer bears the cost.

Freddie Mac and Fannie Mac have yet to begin to disclose the impact of loans purchased from mortgage originators using this scheme. However, reading their last annual report makes it clear that they are expecting the worse.

We need banking and financial market regulations able to detect and stop synthetic identity fraud. Institutional self-regulation has absolutely failed and the cost of that failure is ours. Our economy and financial markets depend on the smooth and regular flow of finance. Not only does synthetic identity fraud unravel everything, but it is perhaps of greatest consequence to those who concern themselves with the certain, predictable and fluid flow of commerce – our banks and economic markets.