Police kept tabs on lawyer suing over fatal raid

By Jennifer Autrey
Star-Telegram Staff Writer

North Richland Hills Police Chief Tom Shockley approved the surveillance of an attorney who was suing the Police Department for shooting the son of true-crime writer Barbara Davis, according to sworn testimony filed in federal court.

Shockley says the activity was legal and was prompted by the belief that the attorney was involved in criminal wrongdoing.

But legal experts say the surveillance may have violated the attorney's civil rights, exposing the city and its Police Department to legal liability.

And even if no laws were broken, law-enforcement experts question the wisdom of the activity because of the potential for a conflict of interest and public embarrassment. It could also weaken the city's position in two lawsuits stemming from the shooting of Davis' son, Troy, they say.

Shockley said he did not order the tailing of Dallas lawyer Tom Carse and did not know the details of what was being done, according to depositions from one of the lawsuits. But the police chief testified that he did approve the request from officer Kevin Brown to investigate whether Carse had been representing himself as a police officer when talking with witnesses.

"I told him if there was a violation of state law that he was investigating, that he could look into that, so he -- it was approved, but I did not direct him to do that," Shockley said.

The details of the Police Department's activities involving Carse are hard to pin down. Sworn statements and testimony are vague and at times contradictory. Shockley defines surveillance very narrowly, although no one disputes that a police surveillance van was used to tape the attorney without his knowledge.

Barron's Law Dictionary defines surveillance as an investigative process by which police gather evidence about crimes or suspected crimes through continued observation of people or places. Wiretapping, eavesdropping, tailing and electronic observation are examples of surveillance, the guide says.

Carse has hired an attorney, who is de-ciding whether to file a civil-rights suit against the de-partment.

"We are just dumbfounded and are looking forward to finding out why this happened," said his attorney, Bill Curtis of Dallas.

The surveillance occurred in early 2000, not long after Carse was hired to represent the estate of Troy Davis in a wrongful-death lawsuit against the Police Department. Davis was the son of writer Barbara Davis, who gained recognition for her book about Rowlett homemaker Darlie Routier, who was convicted of killing her son.

On Dec. 15, 1999, the North Richland Hills SWAT team, using a no-knock warrant, stormed Davis' house, believing that the Davises were growing marijuana. Police have said that Troy Davis, 25, pulled a gun and that officer Allen Hill shot and killed him.

Barbara Davis was sentenced to two years' probation for possession of the designer drug gamma hydroxybutyrate, or GHB, which was found in the house. Charges over possession of three marijuana plants found during the raid were dropped.

The city faces two wrongful-death lawsuits: one originally brought by Carse for the Davis estate and another brought by Barbara Davis, represented by Fort Worth lawyers Jeffrey Kobs and Mark Haney. It was in the course of the latter suit that the plaintiff's attorneys uncovered the surveillance of Carse and called to tell him about it.

In sworn testimony, several officers said the investigation of Carse started from tips that he was impersonating a police officer and was scaring the witnesses.

"Every witness they talked to, they were getting information that Tom Carse had been flashing a badge," police Capt. Robert Murphy said during his deposition.

Carse referred all questions to Curtis, who said he is certain that Carse never identified himself as a police officer. Using the Texas Public Information Act, Curtis filed a lengthy request with the city for more information on the surveillance.

"As far as I know, Tom was doing what any good lawyer would do, which is find out what evidence there is and move forward," Curtis said.

Officer Rey Garza detailed the surveillance in 16 pages of depositions taken Nov. 27. The activity lasted about two weeks, he said. At one point, Garza said, he put a wire on an individual whom he did not know. Then, officers used the department's surveillance van to tape Carse while he looked for a witness at a strip club in Fort Worth and in front of a house in Arlington, Garza testified.

If individuals were taped without anyone involved in the conversation knowing, it may have violated a state law that requires the Department of Public Safety to approve surveillance.

Garza said Sgt. Andy Wallace had ordered him to help Brown in the surveillance.

But three weeks after Garza's deposition, North Richland Hills submitted a signed statement from that officer into the court record, recanting his testimony about the surveillance.

In the sworn statement, Garza wrote that he "had been advised" that he was incorrect when he stated that top officials, including Wallace, ordered or authorized the surveillance.

"I am unaware of any surveillance of Tom Carse," Garza's Dec. 17 affidavit says.

Shockley, in a written statement to the Star-Telegram, said the information stating that the department tailed Carse in other cities was erroneous. The surveillance occurred only in North Richland Hills when a former police officer, Tim Samsill, wore a wire while talking to Carse at Samsill's house, Shockley said.

Shockley contends that Samsill's taping was legal because Samsill was a party to the conversation and knew it was being taped.

Regardless, some other area law-enforcement officials question the prudence of using police officers and equipment to investigate a lawyer for someone who is suing the department.

Hurst Police Chief Tim Wallace said he would not initiate such an investigation, even if criminal wrongdoing were suspected.

"Even with that, because of the potential for conflict, I think I would give it to another police department and let them handle the matter," Wallace said.

Fort Worth Police Chief Ralph Mendoza, while not commenting specifically on the North Richland Hills situation, said an alleged offense of impersonating an officer doesn't seem serious enough to warrant a full-scale investigation, complete with a surveillance van.

"It's not an offense that you tend to use that type of time, effort and resources for," Mendoza said.

Michael Linz, a Dallas-based cooperating attorney with the American Civil Liberties Union, said there could be legal ramifications for the actions of the North Richland Hills Police Department.

"If this was a pretext in order to intimidate someone who is bringing claims against them, there could be a serious financial liability on the part of the government agency, in this case the city police or the city," Linz said.

Shockley countered that Carse's role in the lawsuit did not grant him any special privilege or immunity. Information saying a violation of state law has been committed will cause an investigation, he said.

"This was the only reason for such activity, not the suit," he said.

Wayne Krause, an attorney with the Austin-based Texas Civil Rights Project, said the activity could bolster one of the plaintiff's arguments: that the North Richland Hills Police Department was capable of the kind of misconduct that led to the suit in the first place.

What police may have overheard while taping Carse could also be at issue, Krause said. If officers gleaned information that was confidential under attorney-client privilege, a judge could consider issuing sanctions against the Police Department, he said.

But knowing what the Police Department heard Carse say may prove difficult.

Shockley acknowledges destroying a tape recording of one of Carse's conversations after determining that Carse had not unlawfully represented himself on it.

"Had there been a violation of law witnessed on the tape, it would have been logged as evidence," he said.

Jennifer Autrey, (817) 390-7126

jautrey@star-telegram.com

Excerpt from deposition

Here is an excerpt from North Richland Hills police officer Rey Garza's oral deposition in the federal lawsuit brought by true-crime writer Barbara Davis. She is represented by Fort Worth attorney Mark Haney, who questioned Garza on Nov. 27.

Haney: It's your testimony here today that, at least for a period of two weeks, you and at least three other members of the North Richland Hills Police Department were ordered by your superiors to trail and surveil the activities of Tom Carse, who is the plaintiff's lawyer representing Barbara Davis in a suit against the city of North Richland Hils?

Garza: Yes.

Haney: And you used departmental vehicles for that purpose, is that correct?

Garza: Yes.

Haney: Departmental equipment?

Garza: Yes.

Haney: Departmental time?

Garza: Yes.

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