Police Assn: 'Investigate immediately' allegations of DA's evidence tampering, denial of Due Process

Travis County D.A. Jose Garza on the far-left of a stage at a campaign event (source: Facebook)

Criticism continues to mount regarding how Travis County District Attorney José Garza is running his office and prosecuting cases.

Garza, a hard-left Democrat elected during the 2020 presidential cycle during which liberal-progressive voters were out in full force, is facing allegations of denying defendants their constitutional due process according to Austin's police union.  

In a press statement from Austin Police Association (APA), "Brady notices" were filed by an assistant district attorney in two cases -- "one involving a child victim of an aggravated sexual assault and the other a homicide," according to APA President Ken Cassaday.

First, a little background on what a "Brady notice" means. Not to be confused with the anti-gun Brady Act, the required disclosure is named for the U.S. Supreme Court case Brady v. Maryland (1963). In Brady, the majority ruled that suppression, by the prosecution of evidence which may be favorable to a defendant who as requested to see it, is a violation of the Fourteenth Amendment's protection of due process.

In other words, after Brady, prosecutors were expected to make known all evidence or other information that would prove the innocence of a defendant. It has become a difficult thing to enforce, but many states have passed their own laws to discourage or combat prosecutorial misconduct.

Back to the Travis County situation: Today, a request for an evidentiary hearing based upon prosecutorial misconduct was filed in the 147th District Court following the issuance of the Brady notices. The 147th District is presided by Judge Cliff Brown, a Democrat elected to the post in 2011.

"The magnitude of the inappropriate behavior at the Travis County District Attorney’s Office calls for immediate, transparent responses, and external reviews of the matters brought forward ..." Cassaday said.

In addition, Cassaday said a police homicide detective was led to "alter/amend significant portions of his investigative presentation material prior to it being presented in a grand jury hearing."

No statement has been issued by Garza or his office at the time of writing. Local left-leaning media have recently praised Garza for "transforming criminal justice" in Austin and greatly reducing bond amounts. Immediately after election, progressive publications were praising Democratic Socialists of America-endorsed Garza for "ending the drug war" by refusing to prosecute lower-level possession charges. 

Garza's office came under fire in May when an assistant D.A. solicited help to prosecute police officers. 

Garza defeated a more-moderate Democrat in the form of incumbent Margaret Moore in the 2020 primary and runoff, and later bested conservative Republican challenger Martin Harry in the general election. 

Below is the full statement from APA's Cassaday.

The Austin Police Association was made aware of possible allegations of misconduct by Travis County District Attorney Jose Garza and members of his office. A Brady Notice was issued by Assistant District Attorney Ariane Flores for the case of The State of Texas v. Santos Penaloza-Enriquez, Cause No. D-1-DC-13-904069 and in another case, The State of Texas v. Daniel Perry, Cause No. D-1-DC-21-900007, a request for an evidentiary hearing based upon prosecutorial misconduct was filed today in the 147th Judicial Court in Travis County.

The conduct and allegations included in both cases are extremely concerning and should be properly investigated immediately. The integrity of the criminal justice system in Travis County depends on the highest levels of ethical behavior and professionalism for those holding an elected position and those who work for the public office of the District Attorney for Travis County.

Based on the information provided in the Brady Notice and the motion for the request for an evidentiary hearing, the inappropriate and illegal behaviors extend to the highest levels of the Travis County District Attorney’s Office and to Jose Garza in his official capacity.

The alleged conduct is beyond disturbing and further complicates two very serious cases; one involving a child victim of an aggravated sexual assault and the other a homicide. The magnitude of the inappropriate behavior at the Travis County District Attorney’s Office calls for immediate, transparent responses, and external reviews of the matters brought forward by former Travis County Assistant District Attorney, Ariane Flores and Criminal Defense Attorney F. Clinton Broden.

Unfortunately, the Austin Police Association anticipates there are more cases or instances of inappropriate conduct by members of the Travis County District Attorney’s Office since Jose Garza took office in January 2021.

Detective David Fugitt has an outstanding reputation for providing high quality, professional investigations to the numerous homicide cases over his career. It is extremely distressing to discover the Travis County District Attorney would force a highly regarded homicide detective to alter/amend significant portions of his investigative presentation material prior to it being presented in a grand jury hearing.

The Austin Police Association has full confidence that Honorable Judge Cliff Brown, 147th Judicial District Court, will give the motion to request for evidentiary hearing a full and thorough judicial review of the facts as presented to him.

In Jose Garza’s short time in office, he has allowed the Travis County District Attorney’s Office to be severely tainted, brought a lack of credibility, honesty, and professionalism to the top prosecutorial office in Travis County. In order to restore a level of public confidence back to the District Attorney’s office, the results of an investigation into the allegations should be made public and appropriate legal actions or sanctions applied if warranted.

Ken Casaday, President

Austin Police Association