The erosion of the criminal corruption case against state Rep. Dawnna Dukes is continuing ahead of an Oct. 30 deadline, as prosecutors acknowledge they will abandon one of the 13 felony counts against the Austin Democrat over an investigator’s error.
Dukes was indicted in January on charges she falsified travel vouchers to collect a $61.50 per diem 13 different times on days when she did not work at the Capitol.
But in a recent court filing, the Travis County district attorney’s office indicated a crime analyst with the Texas Department of Public Safety examined the wrong date when looking into Dukes’ cellphone activity to determine her whereabouts related to a travel reimbursement voucher she submitted in 2013. The mistake resulted in a felony count that erroneously stated Dukes turned in a falsified voucher for Dec. 22, 2013.
Justin Wood, the lead prosecutor on the case, declined to comment for this story. In the filing, he asserted that if the case goes to trial he will “move to waive or abandon Count IV of the indictment.” The dropped charge effectively brings Dukes’ maximum jail sentence from 28 years to 26 years if convicted on all charges, which include two misdemeanors.
“I question the motivation and the haste of their prosecution of Rep. Dukes,” her attorney, Matthew Shrum, said. “That they can’t see the sloppiness of the investigator that led to the abandoned felony count is just puzzling.”
The rest of the felony charges are also in doubt.
Dukes’ attorneys released a bombshell in September in the form of a sworn statement from a House official who said Dukes had to work from Austin — and not necessarily the Capitol — to qualify for reimbursement. That blindsided prosecutors, who had believed that witness, Steven Adrian, executive director of the House Business Office, would testify that Dukes had to be at the Capitol to collect the money. Three of Adrian’s employees signed declarations affirming what he said to Dukes’ attorneys.
Soon after, District Attorney Margaret Moore announced she would put the felony charges on hold, but at a hearing last month state District Judge Brad Urrutia set the Oct. 30 deadline, telling prosecutors to “fish or cut bait.”
All told, prosecutors had alleged that Dukes scammed the government out of $799.50. That total with the dropped charge is $738.
According to court records regarding the charge that will be dropped, Elizabeth Buhay, a crime analyst with the DPS telecommunications research analysis center, discovered on Oct. 2 that she mistakenly used cellphone data from Oct. 22, 2013, instead of Dec. 22, 2013, when she mapped Dukes’ cellphone activity. After realizing her error, Buhay analyzed the correct date and found activity near downtown Austin, which puts Dukes “within range of the Capitol building,” the document states.
Prosecutors were required by law to turn over documents detailing the error to Dukes’ attorneys.
Buhay’s mistake happened in the early stages of the case, as did the confusion over Adrian’s interpretation of voucher reimbursement rules. The lead prosecutor at that time was Susan Oswalt, who retired this summer and handed over the case to Wood.
It is unclear how prosecutors, DPS investigators and Texas Rangers failed to notice these holes in the case during an investigation that spanned more than 18 months. Oswalt declined to comment when reached by phone.
Moore has not indicated which way her office is leaning ahead of the Oct. 30 deadline. If prosecutors continue with the case, they must show Adrian’s reading of the reimbursement rules is wrong, or that Dukes was not in Austin on the dates in question.
In a related development, Dukes’ attorneys dispute an assertion by prosecutors that Dukes hid a cellphone from investigators. A list of 19 extraneous acts that prosecutors filed last month states Dukes responded to a search warrant for her cellphone by providing investigators a phone that did not match the identification number of the model they requested.
But Shrum said he personally turned over the correct phone to investigators.
“I do not have any idea where the DA’s office is coming from when they say she turned over the wrong phone,” he said. “It’s out of the blue.”