Photo: Ana Goñu-Lessan / Contributor

The Harris County District Attorney’s Office was ordered to pay a rare monetary sanction after a judge found that prosecutors acted in bad faith when they took eight months to turn over evidence that could have helped the defense in a misdemeanor drunken driving case.

Even though the accused man’s attorneys asked for the information — records showing the disciplinary history of a La Porte police officer involved in the arrest — in October, prosecutors still hadn’t turned over the material by trial’s scheduled start in July. When a judge finally ordered them to, the state’s attorneys insisted on a hearing to determine if they could turn over the information under seal.

“Withholding was inexcusable and then the judge told them to turn it over and they said, ‘No, not unless you give us a protective order,’” said defense attorney Jordan Lewis. “All of it just speaks to the very clear attitude that officers are above the law.”

The decision to levy a sanction — $500 due this month — against prosecutors accused of failing to turn over evidence in a timely manner is so uncommon that multiple attorneys and former judges said they’d never heard of it happening before. A spokesman for the district attorney’s office called into question whether jurists are allowed to impose sanctions over withheld evidence, saying Judge Andrew Wright instead should have just allowed the defense more time to prepare for trial once they got the materials requested.

“The remedy for late disclosures is simple — more time,” said spokesman Dane Schiller. “The state intends to appeal this order because no ‘bad faith litigation tactics’ were exercised here.”

The courtroom wrangling stems from a September 2018 arrest. After wrecking his vehicle on a La Porte roadway, a Chambers County man walked to a nearby bar. Officers spotted the crashed vehicle and tracked down the driver, his attorney said, arresting the man even though he wasn’t in his vehicle at the time.

The following month, Lewis asked prosecutors to turn over any evidence that could help show his client’s innocence or call into question the credibility of witnesses — like police — who might testify at trial. A 1963 U.S. Supreme Court decision requires prosecutors to disclose so-called “Brady” material that could help exonerate a defendant. And in Texas, under the broader requirements of the Michael Morton Act, they’re mandated to turn that material over as soon as possible.

Even though La Porte police told prosecutors in early 2018 — well before the start of the case — that one of the officers involved in the arrest had been disciplined repeatedly, the district attorney’s office didn’t tell the defense until mid-July, according to court records.

Then, the week before trial was scheduled to start, the state provided a four-paragraph summary, but not the disciplinary records themselves. After asking to have the judge review the records, prosecutors asked to have them released under a protective order and insisted on a hearing to decide whether to allow that. Though the DA spokesman pointed out that confidential records require approval from the judge before they can be released, Lewis said sustained disciplinary complaints against police aren’t confidential.

“They were demanding a protective order for public information,” he said.

At the hearing on July 30, prosecutors mentioned for the first time that there were far more disciplinary records than previously revealed, and Lewis decided to ask for sanctions.

The judge agreed.

“The Court finds that the State has engaged in bad faith litigation tactics,” Wright wrote in an one-page order signed Aug. 23. “The Court further finds that this is a regular and pervasive course of conduct and that sanctions are necessary to deter future bad faith conduct.”

The district attorney’s office immediately announced the intent to appeal, and argued that the Michael Morton Act “expressly has no sanctions for violations.”

Though an early draft of the Michael Morton Act included the possible of monetary sanctions against prosecutors who failed to turn over evidence, the final version passed into law didn’t include that piece. According to the district attorney’s office, that meant the judge didn’t have the authority to order the fine.

Former Juvenile Judge Mike Schneider - who imposed a record $127,000 in sanctions against Child Protective Services in 2018 after finding that the state agency wrongfully removed two children from a Tomball couple — said focusing on the details of the Michael Morton Act “misses the point.”

“Courts have been given very broad inherent power to sanction even without any specific authority of a rule or a statute,” he said. “So the courts are not generally hamstrung when awarding appropriate sanctions, even when the law does not specifically allow for it.”

But, he said, sanctions typically must be tailored to a specific act and the short, one-page order could prove “too vague” once the matter ends up in front of an appeals court.

The district attorney’s office also argued routine requests for protective orders are necessary to help ensure that police departments are willing to continue cooperating in turning over disciplinary files without a subpoena, and that they’re business-as-usual in other courts.

“Until this incident, most Harris County judges have signed the requested protective orders, usually with the agreement of defense counsel,” Schiller said. “As such, it is unreasonable to assign bad faith to the state for pursuing a procedure that has been a regular practice for months in other courts.”

To Lewis, those explanations raised another set of problems, and create a double-standard.

“They’re only asking for protective orders when they’re handing over police disciplinary files - so they’re asking for special treatment for police officers,” he said. “This is the same office that daily stands in front of a courtroom and repeats all of the bad unproven things that cops say about ordinary citizens.”

In addition to the $500 sanction, Wright tossed all testimony from the former officer and banned any reference to him.

Afterward, prosecutors moved to dismiss the case.