ustxtxb_obs_1989_02_10_50_00012-00000_000.pdf

particularly in the high percentage of suspects Holmes claimed either urinated on themselves or left their zippers open. Once the number of incidents Austin defense lawyers complained about started piling up, and a hearing was set by Judge Wilfred Aguilar to rule on a motion to declare that Holmes was not a credible witness, County Attorney Ken Oden’s office compiled more evidence of questionable actions by the trooper. Finally, prosecutors at Travis County District Attorney Ronald Earle’s office stepped gingerly into the fray, saying they were looking into the controversy. The investigation into Holmes also has shed some light on the DPS, complete with stinging testimony against Holmes by his fellow troopers and an admission by one trooper that there is internal pressure at DPS to rack up DWI cases. A trooper’s affidavit says that Holmes “had tremendous pressure put on him for the number of DWI’s arrested as every othertrooper in our office did.” H.OLMES HAS HAD previous discipline problems. A DPS personnel report shows that Holmes was once suspended for five days without pay for allegedly possessing and selling steroids. The personnel report also shows that Holmes was suspended for three days without pay last year for going on a “dark run” chasing a vehicle without his warning lights or siren on without first notifying his superiors. It ended with Holmes running a red light and colliding broadside with another vehicle. A civil suit is pending. But things didn’t start to unravel for Holmes until Judge Steve Russell last year heightened the Austin defense bar’s concerns about Holmes by ordering a compilation of Holmes’s arrest reports. They showed a striking consistency. Of 129 males Holmes arrested in a ten-month period, nearly three-quarters of the cases were based on the same type of evidence 72.8 percent of the suspects either had the zippers of their pants open, a “wet spot” on their pants, or both. That struck experienced defense attorneys as unbelievable; Judge Russell called it an “amazing coincidence” in ordering the compilation; and even county prosecutors acknowledged that it was, ahem, highly unusual. Austin lawyer Betty Blackwell said Holmes’s percentages of wet spots and open zippers was “outrageously high.” She said she’s seen two examples in her nine years of criminal defense practice, and one was on a Holmes report. Defense attorneys say Holmes’s reports stopped noting wet spots in early 1988, after Judge Russell made the statistics part of a case record. In a July 1988 pretrial hearing in the case Judge Aguilar dismissed January 11, Holmes said he only notes a “wet spot in the crotch area” if a person has urinated on themselves, and not if they spilled a drink. Under questioning by Kinard, Holmes said it wasn’t that DWI suspects in Travis County had stopped urinating on themselves, but that he “just quit putting it in my reports.” “I kept giving y’all gas to pour on the fire, so to speak,” Holmes testified. Holmes said he resumed reporting wet spots with Kinard’s client because the suspect, as Kinard put it, “made a scene” and threatened to file a complaint against the trooper. “So you would put it in your report that someone had a wet spot if they did, and if in addition they said they were going to complain against you?” Kinard asked Holmes. “Yes,” Holmes replied. In a transcript from another case in 1987, Holmes contradicts himself on the reporting of wet spots, at first agreeing that such a condition is “pretty unique,” then saying, “It is common on most drivers.” In July, Kinard asked the trooper, who was testifying in a DWI case, how he determined whether a person’s “face is flushed. Kinard: “For example, the white person is easy to observe, but a black person you wouldn’t know that their face is flushed; is that correct?” Holmes: “Yes.” Kinard: “Have you ever indicated that a black person whom you have arrested has a flushed face? You wouldn’t do that?” Holmes: “I don’t think so. Kinard: “If you did it wouldn’t make sense?” Holmes: “No.” Holmes fell into the trap. In September 1987, he had arrested a dark-skinned black man for DWI. The arrest report noted “face flushed.” Other transcripts, files, and arrest reports reveal dozens of incidents that cast doubt on Holmes’s testimony and procedures. The most damaging charges come from three of Holmes’s fellow troopers’ affidavits that are part of a case record. Trooper Clendennen, who teamed with Holmes for several months last year, said Holmes may confuse facts by “mass producing case reports.” Once. Clendennen said, he and Holmes arrested a white male for DWI and, on the way to jail, arrested a Hispanic male on the same charge. In his affidavit, Clendennen said Holmes didn’t wait the required 15 minutes before running either test. While the Intoxilyzer was running on the Hispanic man, Clendennen said, he noticed it was “reading .15 then .16,” far above the .10 legally intoxicated standard. “When Jimmy brought me the test results they showed the white male at .21 and the Hispanic at .09, Clendennen said in the affidavit. “I couldn’t understand this and asked Jimmy if he had made a mistake and confused the results and he told me to mind my own business.” Clendennen said. “I didn’t pursue it any further.” Clendennen said Holmes ignored “at least 50 times” the policy that says troopers must observe suspects for at least 15 minutes before administering the breath test. Clendennen also charged that Holmes listed wet spots on suspects when there weren’t any and that he filed a DWI charge against a man who was passed out in a car sitting on the shoulder of a road. County Attorney Oden said several troopers told his office that Clendennen may be biased against Holmes because of a “personal conflict” stemming from the divorce of Clendennen and his wife, both of whom knew Holmes. Allegations of bias don’t bother Judge Russell, who noted that two other troopers, Riordan and Michael Fincher, back up parts of Clendennen’s statements. Riordan’s affidavit says he “never observed” Holmes obeying the 15-minute waiting period before running the Intoxilyzer. “He often times would run Intoxilyzer within a few minutes, less than 15, of arriving at the jail,” the affidavit says. Trooper Fincher, who said relations between Clendennen and Holmes became strained during Clendennen’s divorce, also said Holmes did not observe subjects for 15 minutes before giving them the Intoxilyzer test. Two other troopers, who had not teamed extensively with Holmes, signed short affidavits saying they considered the trooper professional and credible. Another Travis County official, Justice of the Peace David Crain, said about one year ago he noticed Holmes was submitting probable cause affidavits that listed identical conditions of suspects. “They should vary, Crain said. “They’re not always the same symptoms.” Crain said Holmes had photocopied the affidavits, then added his name and the suspect’s name when he made an arrest. At one point, the JP said. Holmes was even photocopying his name as well. Crain said he notified an assistant to the county attorney and eventually the photocopying stopped. “My impression was that Holmes stood out from the rest in sloppiness and the paperwork aspect of the job, Crain said, adding that the legend of Trooper Holmes was well known in official circles long before he became the talk of the Travis County bar: “He achieved a certain level of notoriety around here before he became known to the rest of the world,” Crain said. El Editor’s note: At Observer press time, the Department of Public Safety suspended Trooper Jimmy length of time. At least 150 Travis County DWI cases will now be dismissed. 12 FEBRUARY 10. 1989