Laws differ on disclosing police disciplinary files

We will never know whether Carlos Flores, then 44, was guilty of drunk driving when San Antonio Police Officer Mathew Belver stopped and arrested him back in October of 2009.

Flores was charged with a more serious crime — assault on a public servant.

Belver said in his report that Flores had kicked him in the face as he tried to put him in the back of his squad car.

Flores said he was innocent.

He filed a complaint with the police department alleging that Officer Belver had actually assaulted him.

Belver, said Flores, had handcuffed him and put him in the back of the car.

Flores said the officer then told him, “I want to kick your ass,” pulled him out of the car and began beating him while he was handcuffed.

Flores said he did kick Belver, but it was in self defense during the beating.

Nevertheless, presumably on the advice of his attorney, Flores cut a deal.

It was his word against Officer Belver’s, which did not portend a favorable outcome.

Flores pleaded no contest to the charge in exchange for receiving deferred adjudication.

If he completed the terms of a four-year probation, no final conviction would be entered in his record.

Unfortunately, Flores didn’t complete those terms.

He missed several meetings with his supervision officer, hadn’t paid restitution nor completed community service.

In May of 2013, his probation was revoked and he was sentenced to three years in prison.

Flores, who had no previous criminal record, apparently behaved himself in prison.

After only one year he was scheduled for release.

It was then that he learned a sobering fact.

Flores was a Mexican citizen who was in the United States legally.

But because of his conviction, he faced deportation.

Before he cut his earlier plea deal, Flores had received a response from the police department’s internal affairs unit.

In rather vague terms he was told that “corrective action” had been taken against Officer Belver.

But he wasn’t told what the action was.

About a month before he went to prison, Flores was interviewed by the FBI.

They were investigating allegations that Belver was beating people he arrested and conducting improper, warrantless searches.

What Flores wasn’t told, nor was the DA’s office, was that the police department determined that Belver had filed a false report on the Flores case and had violated department policy by not taking the seriously injured man to the hospital before booking him.

Belver was suspended for 30 days without pay.

Photographs reportedly showed Flores with a severely beaten face and Officer Belver with only a small mark on his.

Based on this and other evidence, the district attorney’s Conviction Integrity Unit filed a motion to dismiss the charges.

DA Nico LaHood explained why.

“As you know, (Integrity Unit Chief) Jay Brandon and I both practiced as criminal defense lawyers,” he said.

“I absolutely would want to know about the finding on that police officer before advising my client on his defense.”

What’s more, he said, it’s the law.

The Supreme Court a long time ago ruled that prosecutors must turn over to defense lawyers any what it called “exculpatory material” — any evidence that might help the defense.

In 2013 the Texas Legislature passed the Michael Morton Law, which broadens what Texas prosecutors are required to turn over.

But there is a problem, as first noted by Judge Barbara Hervey, a former Bexar County prosecutor who is now a veteran member of the Texas Court of Criminal Appeals.

That problem is that under a separate Texas law, police agencies covered by Civil Service rules are not required to disclose police disciplinary files, even to prosecutors.

This includes the SAPD.

Hervey indicated that contradiction needs to be addressed, either by her court or by the Legislature.

Meanwhile, DA LaHood has put an appellate lawyer in charge of advising prosecutors on disclosure, and his office has developed a list of officers in the county’s numerous police agencies whose disciplinary records should be disclosed to defense attorneys.