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.

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