During a last-minute hearing this afternoon, a judge ordered that data seized from Precinct 5 Constable Jaime Cortes's office computer be returned -- only, not to Cortes, as his lawyers, Larry Friedman and Domingo Garcia, had demanded, but to the court, where it will remain under seal until an upcoming hearing to determine what should be done with it. The hearing is just the latest piece of what has become a swirling cloud of accusations surrounding Cortes and Precinct 1 Constable Derick Evans.
Foster has said the hard drive was seized and its contents copied as part of a county investigation into the constables, but his office conducted the raid at night without a warrant or a subpoena. That prompted Cortes's lawyers to seek a temporary restraining order against Foster and request the data be returned, arguing that they took it illegally and in violation of the rights of county residents whose information may be on the hard drive.
"This applies to the health, wealth and safety of the residents of Dallas County," Friedman told reporters while waiting to address the judge. "This isn't just a political dispute, it's a serious legal matter." Garcia called the seizure a "classic example of Big Brother." One copy of the data has been given to the FBI; the other, to a grand jury.
For today's story, DMN'er Kevin Krause got the legal perspective of some folks uninvolved in this dispute who say it's highly unusual and problematic for a local official to conduct a search of another official's property without an order. Yet Christopher Weil and John Barr, attorneys for Foster and Danny Defenbaugh, the former FBI agent hired by the county to investigate the constables, argued that the county judge had the authority to seize and search Cortes'computer because it's county property. They also stressed that Foster had asked Cortes for permission multiple times but were "rebuffed."
"When you open up a county computer, a box appears and tells you this is county property and you have no right to privacy," Barr told the court. Garcia called that approach "a dangerous precedent," and Friedman said Foster should have gone through official channels before authorizing the raid.
"If they wanted to do it the right way," he said, "they could have done it during normal business hours. Instead [Foster] took the law into his own hands."
Retired Judge Richard Davis, who presided over the hearing after Judge Martin Lowy recused himself, didn't completely vindicate either side, but brokered a deal whereby the data still in Foster's possession will be given to the court and kept under seal until the next hearing.