AUSTIN (KXAN) — The families of two young men who died in police custody testified Wednesday in support of a bill aimed at increasing transparency of Texas law enforcement.
It marked the second legislative session Kathy and Robert Dyer have traveled to the State Capitol from north Texas to tell lawmakers how Mesquite police denied their request for records related to the 2013 in-custody death of their 18-year-old son, Graham.
“I would hate to see any other family go with what we’ve gone through,” Robert Dyer told lawmakers on the House State Affairs Committee. “We’ve lived with this every single day since August 14, 2013.”
Demeisha Burns of Bastrop joined the couple in delivering testimony. Burns hit roadblocks when requesting information about how her son, Herman Titus, 21, died inside a Travis County jail in 2017.
“Because the sheriff’s office delayed releasing details about my son’s death by using this law to deny public information requests, my lawyer dropped my case,” Burns told lawmakers. “I was left without any answers until investigative journalists with KXAN-TV stepped in and discovered what led up to my son’s death.”
The agencies in both Burns and the Dyers’ cases cited an obscure item in the Texas Public Information Act giving police discretion to keep details in cases like this secret — something open records advocates have labeled the “dead suspect loophole.”
Robert Dyer said he understands law enforcement’s desire to withhold records in cases that are still open and under investigation but believes records should be released in closed cases when the suspect is dead.
“In an instance such as this where a person dies in the hands — if not at the hands of the police — then all of this should be wide open to prevent anything like this from ever happening again,” he said. “Should this law be passed, I think that it would strengthen the police community. It would foster very, very good relationships between the public and the police officers that we hire to protect ourselves.”
Still, the Combined Law Enforcement Associations of Texas and police unions from Austin, Houston and Dallas showed up to voice concerns about how the bill could potentially force agencies to release internal affairs investigations where allegations against officers are not sustained. They’re also concerned about the release of evidence surrounding police officer deaths, specifically video of those incidences.
“There are families out there are both sides – sides that we’ve heard today that are seeking it for their reasons. There are also families of our officers and families on other ends that don’t want that out there,” said Justin Berry, a member of the Austin Police Association. “Because there’s two perspectives on this issue, I think there’s a better way to make sure we can do this so we’re not having to come back down the road and have to re-address those unintended consequences.”
Rep. Joe Moody, D-El Paso, authored legislation to close the current loophole in 2017 and again this session. His bill would require police to release information in closed cases if a suspect is dead or agrees to its release.
Moody has described the loophole as an “unintended consequence” of lawmakers’ efforts to protect the privacy of people who were cleared of crimes. Crafted in 1997, it allows law enforcement to withhold information in closed cases that don’t “result in a conviction or deferred adjudication.”
“House Bill 147 closes a significant loophole in our public information law that’s had tragic consequences for Texas families and Texas transparency,” Moody said. “The unintended loophole is this – in cases in which a person dies, like a police shooting or a death in-custody, there’s obviously never a conviction or any plea at all. That makes all records about that death confidential forever.”
That can be especially concerning for some when suspects die in custody. Because they will never progress through the court system, details in their cases can be withheld permanently.
Last year, KXAN set out to discover the widespread use of this loophole, highlighted in the station’s ongoing “DENIED” investigation. We focused on the state’s 21 largest law enforcement agencies, which account for more than a quarter of the 4,200 in-custody deaths since the loophole went into effect two decades ago.
We submitted public information requests for other individuals’ past open records requests related to deaths within those agencies. The six-month analysis revealed at least 154 public information requests related to 52 in-custody deaths denied under the loophole.
After reviewing KXAN’s research, Moody said it’s clear some agencies might be taking advantage of the loophole to avoid transparency.
The results are likely far greater but impossible to know, because agencies can legally destroy such record requests after just two years — one of the reasons Moody said KXAN’s investigation into this issue would be “invaluable” in the bill’s passage.
Last session, a House panel gave Moody’s bill unanimous approval, but it failed to proceed to a full vote on the House floor because it was introduced late in the session. But this session, its committee hearing is scheduled two months earlier than before — which supporters say is promising.
Opponents of the bill like Austin Police Association President Ken Casaday say families should be able to “see the video and find out swiftly what happened to their loved one,” but it should stop there.
Casaday said he’s had two partners at the Austin Police Department who died in the line of duty, including APD Officer Jaime Padron, who was killed in April 2012 when a suspect shot him in the neck at a local Walmart. Casaday said 30 different camera views captured Padron’s death.
“The blood slowly dripping out from his head and his body encased in blood,” Casaday recounted. “I don’t want that to be available for the media or anybody else to view or post”
Some witnesses testifying about their concerns with the bill say they hope they can work with Moody on a revised version that addresses the release of internal affairs documents as well as video of any officer’s death.
“I’ve already committed to fixing the internal affairs concerns,” Moody said. “Also heard the concerns from those in law enforcement who’ve lost a loved one, lost a colleague. That is something I think we can certainly address as well.”
The bill was left pending in committee. Lawmakers plan to revisit it in the coming weeks.
Graham Dyer case
Following Graham Dyer’s in-custody death in 2013, his parents hired an attorney to file a civil rights complaint in federal district court based on the little evidence they had about his public intoxication arrest. The city of Mesquite had used the “dead suspect loophole” to deny most of the items the couple had requested.
“You can’t tell a parent, ‘Well, your child died, so we don’t have to tell you what happened.’ That doesn’t make any sense at all,” Kathy Dyer told KXAN.
After years of persistence, the couple found a backdoor way through the FBI to finally obtain information, and the video that surfaced did not match what police told them happened to their son. The footage shows police shocking Graham multiple times after he rushes at an officer. It later shows him in the back seat of a patrol car with his hands and feet bound — but without his seatbelt fastened — thrashing around and slamming his head roughly 50 times against the window and the cage separating him from the front seat.
The case never went before a grand jury. No officers were disciplined. However, obtaining the video gave the Dyers enough evidence to move forward with a federal excessive force lawsuit against one of the officers.
“If the law stays as it is, the police will continue to deny families those records,” Kathy Dyer said.
City officials have declined interview requests made by KXAN.
Herman Titus case
In May 2017, Demeisha Burns’ son, Herman Titus, was on probation and high on various drugs when he drove off a highway in east Austin. The car plummeted 35 feet into a creek, paralyzing a woman in the passenger’s seat. He was charged with intoxication assault.
Video from a camera inside an Austin police cruiser showed Titus moaning in pain, as the officer snapped a seatbelt over his chest before transport to the Travis County Correctional Complex. He died in his cell just 27 days later.
The autopsy listed Titus’ cause of death as hypertensive cardiovascular disease. The county medical examiner noted “hardening of the walls inside of his heart” and said he had “heart disease due to high blood pressure.” The Travis County Sheriff’s Office and the Texas Rangers both conducted investigations into Titus’ death and closed their cases, finding no misconduct or neglect. The state’s Commission on Jail Standards also said there was no violation of minimum jail standards. And, no one was disciplined after the incident because the sheriff’s office found no policy violations.
Unsatisfied, Burns looked for an attorney to help her get more information. She found one out of state who specialized in federal civil rights claims, and he agreed to begin gathering evidence for her case — requesting every document, audio clip and video available from Titus’ final days.
But the attorney later dropped her case after Travis County requested a ruling from the Texas Attorney General to continue withholding evidence surrounding her son’s death. KXAN began investigating and uncovered records – including extensive video and audio files – detailing Titus’ complaints to medical staff for weeks following his wreck. Burns said she is once again exploring legal options.
The sheriff’s office maintains no wrongdoing by any of its jailers, though a clinical investigation has been launched into the actions of emergency personnel responding after Titus collapsed in his cell. The county attorney’s office did not respond to multiple requests from KXAN for comment.
“I don’t see how a 21-year-old healthy kid who ain’t never had no heart problems can just fall dead,” Burns told lawmakers. “(Releasing) just the basic information should be enough, just so we can go to bed at night and not cry our eyes out at night, wondering what happened when you don’t get real answers… and all I have is what KXAN came up with.”