Dave Lieber commentary

By Dave Lieber
Star-Telegram Staff Writer

The latest shameful episode in the Troy Davis shooting case in North Richland Hills involves The Case of the Ignored Subpoenas.

As you know, you don't ignore subpoenas. Subpoenas compel you to testify whether you want to or not.

In a city Civil Service Commission hearing in May regarding the suspension of former North Richland Hills police Detective Kevin Brown -- once the lead investigator in the Davis shooting death -- two officers subpoenaed by Brown's attorney did not appear. According to testimony, their superiors may have told them that they did not have to attend.

Brown challenged a 15-day suspension imposed by his superiors after he handed documents from the Davis case to lawyers outside the Police Department. The attorneys represent Troy's mother, Barbara Davis, in a federal lawsuit against the city.

Troy Davis was shot and killed in a December 1999 no-knock drug raid at the Davis house. Police say Troy Davis pointed a gun at them, and they had little choice.

But attorneys representing his mother have raised questions about events before, during and after the raid. The most serious allegation is that police may have planted the gun on Davis after he was killed.

The subpoena issue is a sideshow to the more important life-and-death matter, but it is very revealing.

Police investigator Larry Irving and Sgt. Joe Walley were the two officers who ignored their subpoenas.

Irving was the internal affairs investigator in the Brown case, which seems to be a crucial role, requiring his testimony. Walley was going to be asked whether he had handed files in the Davis case to outsiders, too. (Walley told me this week that he did not knowingly do this.)

When the pair failed to appear, Brown's attorney, Terry Daffron Hickey, vehemently protested. Commission Chairwoman Sally Bustamante said she was "real concerned" about the subpoenas being ignored.

Afterward, Hickey asked the Civil Service Commission to investigate the subpoena no-shows.

City Attorney George Staples, who previously represented North Richland Hills in the Brown case, advised the Civil Service Commission on this issue, too. Hickey said that is a conflict of interest; Staples said it is not.

Staples' opinion is that the commission has no enforcement authority when witnesses do not honor its subpoenas.

"A Civil Service Commission hearing is not a court," he said. "It doesn't have the right to do very much."

But the city charter states the opposite. Subpoenas issued by the commission "have the same force and effect" as would anything done by "a magistrate in his judicial capacity." The charter goes on to say that "the failure upon the part of any person so subpoenaed to comply with the provisions of this section shall be deemed a violation of this article, and punishable as such."

The charter doesn't cite any punishments.

Mayor Oscar Trevino says North Richland Hills will now work to add specific punishments to city rules, but I would ask, why do you need specifics? The charter already gives this power of punishment. Specifics should be left to managers' discretion.

Why didn't the two officers appear? City officials say they did not want to pay overtime costs. (Attention motorists who fight tickets in Municipal Court: You should be so lucky!)

Brown's punishment for releasing the documents to outside lawyers was reduced from 15 days to five by the commission. Maybe if the witnesses had appeared, he could have been cleared. Who knows? Obviously, his due process rights were denied.

Even more telling, I believe, is how the city dealt with Hickey's subsequent call for a Civil Service Commission investigation and her request to appear before the commission to present her legal arguments.

She wrote the commission several times making these wishes clear. On July 9, for example, she wrote the commission: "It is our position that we have the right to be heard and present arguments in support of the request for the investigation. ... Please set this request for an investigation on the next Civil Service Commission agenda. Please confirm the date of the meeting in writing."

What did city officials do? They set a date -- Aug. 27 -- but they never notified Hickey. The meeting was held without her.

Chairwoman Bustamante told me that when she walked into the hearing that night, she was surprised that nobody was there.

Why wasn't the attorney notified? Patrick Hillis, the civil service director, told me that the meeting was "posted in accordance with the charter, and that is our obligation -- to post meetings at locations in City Hall."

Hickey's office is off Camp Bowie Boulevard in Fort Worth. Is she supposed to drive to City Hall every day to check the bulletin board? In a professionally managed city, when an attorney asks you to notify her about a hearing, you do it. That's the way it works in the real world. But in North Richland Hills, apparently, it's bush league all the way.

Hickey said, "They did it the typical North Richland Hills way -- which was to do it all in secret so we don't know what evidence was presented by George Staples. I had evidence to present to the commission that I thought was relevant for them to hear."

When I told Bustamante about Hickey's complaint that she was never invited, the chairwoman said she was surprised to hear that. "That bothers me," she said.

It should. No matter how you look at it, it's a rotten and unsavory deal. But in this city and especially in the case involving the death of Troy Davis, that's nothing new.

Dave Lieber's Column Appears Sundays, Tuesdays and Fridays.

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