The Hays County Justice Center.
By SEAN WARDWELL
Visiting District Judge James F. Clawson Jr. granted Shawn Nathan Shipman a new trial Monday after issues regarding his arrest and conviction were called into question by an assistant district attorney.
Hays County District Attorney Sherri Tibbe did not object to Shipman being retried during the Monday hearing on the matter.
“We’ve decided to agree to the defense’s motion,” Tibbe said. “There’s been a taint on Mr. Shipman’s conviction.”
David S. Watts, Shipman’s legal counsel, motioned for a new trial on April 7, arguing that “evidence presented previously to the Honorable Court was to say the very least suspect, if not in fact, a fraud.”
Shipman, 29, pleaded guilty to delivery or distribution of a dangerous drug on March 9. He was sentenced to the 498 days of time already he already served. District Judge Jack Robison presided over the matter.
Watts’ motion said the evidence was of the nature of brady material, referring to Brady v. Maryland. In Brady, the U.S. Supreme Court ruled that all evidence that could prove a person’s innocence, or shorten his sentence, must be turned over to the defense by the prosecution.
Watts said in the motion that Assistant District Attorney Lynn Peach notified him of the “suspect” evidence previously presented to the court by Assistant District Attorney Chris Johnson and San Marcos Police Detective Laray Taylor. The Hays County District Attorney’s office hired Peach in February to assist Johnson with the prosecution against Shipman. After Peach testified last week at a hearing for a retrial, Robison recused himself.
The matter goes back to Oct. 29, 2007, the date of Shipman’s arrest. On that day, Hays County Sheriff’s Deputy Kenneth Carpenter was on normal patrol duties in Buda when Hays County Narcotics Task Force (HCNTF) Detective Lynn Leuders contacted him, according to testimony given in a judicial hearing in April 2008 to suppress evidence obtained from the arrest.
“On October 29 (2007), I was contacted by Detective Lynn Leuders,” Carpenter said in his testimony. “I met with Detective Leuders at the county line at 1327 and IH-35. Detective Leuders informed me that they had a search warrant for a guy and they needed me to affect a traffic stop on him.”
After receiving a description of Shipman’s vehicle, a 1999 red Mercury Cougar, Carpenter was able to identify it with the help of Leuders and follow it. He observed the vehicle changing lanes without signaling and stopped Shipman at Cabela’s, where San Marcos Police Department (SMPD) Detective Laray Taylor soon appeared.
When questioned by Johnson during the April 2008 hearing, Carpenter testified, “I learned today there was not a search warrant.”
Asked Robison, “As far as you know, no arrest warrant either?”
“No arrest or search warrant,” replied Carpenter.
Shipman had been under surveillance by the HCNTF since September 2007, according to testimony given by Taylor during the suppression hearing.
“In September of 2007, I received information from a confidential source that there was an increase in the use of the drug Nalbuphine, (or) Nubain, in San Marcos and the Texas State University campus area,” Taylor said. “As we continued talking with this source, they advised us that the primary distributor of this drug on campus was Mr. Shipman.”
The U.S. Food and Drug Administration describes Nubain as a potent analgesic that equals Morphine on a milligram basis.
Taylor, who previously had dealings with Shipman in 2001, when the latter was arrested for selling the drug Ecstasy, began surveillance based on the information obtained from the anonymous source.
It was discovered that Shipman was receiving deliveries via DHL, and that one particular driver would leave Shipman’s packages in locations that were not his residence. Taylor also observed that Shipman would sometimes use surrogates to pick them up.
Taylor testified he established the identity of the surrogates through the social networking site, Facebook.
“Another thing we do sometimes is we use Facebook on the Internet,” Taylor said. “Facebook is a – kind of like a social site where people have – they post their descriptions of themselves, where they live and different things, and they post a lot of pictures of their friends.”
Continued Taylor, “What I started doing with the names I got, is I started searching and looking at the names and looking at the pictures and the associates. And what I found out is all these people that were receiving these packages were associates, social associates, friends, different things like that. They all had photos together with each other. So, at that point, I believed there was more connection than just random people receiving packages because they all wanted to order it. But these people all had things in common.”
By this point the HCNTF had been in contact with DHL regarding Shipman’s packages, receiving information on delivery times and dates.
“DHL agreed to cooperate with us in this investigation,” Taylor said. “At times they would call me and say, ‘we have a package coming in.'”
Taylor personally observed Shipman pick up packages from the DHL terminal at Austin Bergstrom International Airport (ABIA), but was not able to ascertain if the package contained Nubain. Taylor testified that he took photos on these occasions, but did not attempt to apprehend Shipman, nor seek a search warrant.
Taylor received another call from DHL on October 27, advising him that Shipman had asked the company to hold a package that he would personally collect on Oct. 29. Police then decided to set up an “all-day surveillance.”
Officers watched Shipman’s home, followed him to New Braunfels, then followed him to ABIA, where he called DHL to say he was on his way to get the package. DHL then contacted Taylor.
Taylor once again observed Shipman enter the DHL terminal and leave with a package. Taylor then followed Shipman as he ate lunch in Austin, where a plainclothes officer was also sent in to observe and listen to Shipman and his companions.
Afterward, SMPD Sergeant Chase Stapp, who had taken up surveillance, observed Shipman make what he believed to be a drug transaction in the vicinity of William Cannon Drive in Austin. However, Stapp did not attempt to apprehend either party in the transaction, instead following Shipman as he continued to Interstate-35, heading south.
Little did Shipman know that a trap was being set for him on the other side of the Hays County line.
An exchange between Watts and Carpenter goes on to describe the events surrounding the stop.
“Your understanding”, asked Watts, “was there was either a search or arrest warrant prior to you ever taking that position (pursuing Shipman)?
Replied Carpenter, “Yes, sir”
“That was your understanding from Lynn Leuders,” asked Watts. “Is that correct?” To which Carpenter again replied in the affirmative, testifying that Leuders was in radio communication with Taylor, who was following Shipman.
After Carpenter stopped and secured Shipman, Taylor arrived and asked for Shipman’s consent to a vehicle search, which was declined. Taylor proceeded to search the vehicle and discovered boxes of Nubain, which, he testified, were in plain sight. Taylor used that as justification to search the glove compartment, where more of the drugs were found.
When Watts had the opportunity to question Taylor about his involvement in the arrest, one of his main questions was why a warrant was not obtained.
“The time from the point in time where he (Shipman) went to Austin to the DHL location to the time of the stop,” asked Watts, ” how much time passed? 15 minutes, hour, hours?”
“I’d say a couple of hours,” answered Taylor.
Posed Watts, “A couple of hours is certainly ample opportunity for you to at least try to get this warrant?”
“No sir,” answered Taylor. “Not when you’re on a surveillance like this.”
Watts went on to ask how many officers were involved in the surveillance of Shipman. Taylor testified there were six or seven officers.
“And none of those six or seven officers in a two-hour period of time could have even tried to get a warrant?” asked Watts.
Replied Taylor, “No, sir. When you’re doing a surveillance like this and it’s going into another city, you have to take into consideration traffic conditions because you don’t want to lose your suspect. You need all those officers to do that surveillance. And there’s not a liberty to break someone loose because you will lose your suspect.”
Carpenter had earlier affirmed under oath that his report about Shipman’s stop took some time to reach the Hays County District Attorney’s office.
“Was your report submitted to narcotics that day?” asked Watts.
Answered Carpenter, “No, it was submitted to my captain for approval.”
Watts then asked Carpenter if he knew how long it took for the report to find its way to narcotics, to which Carpenter replied in the negative.
“Do you have any idea why it would have taken about three months to show up at the D.A.’s office?” asked Watts.
“No, sir,” replied Carpenter. “I would not.”
However, a local lawyer has his own theory.
“The cops overcharged,” said a longtime local attorney familiar with the case, who wishes to remain anonymous due to its sensitivity. “The D.A.’s office was led all over the map, but they eventually figured out what was and wasn’t.”
The attorney also points to the fact that the SMPD was attempting to portray this arrest as cracking an international conspiracy.
“It just didn’t turn out to be that big of a deal,” said the attorney.
In SMPD’s 2007 Year in Review presentation to the San Marcos City Council, the Nubain bust was presented as a conspiracy leading from San Marcos to Germany, through Austin. According to testimony given in the suppression hearing, the drugs were obtained through an online pharmacy in Fort Lauderdale, FL.
Hays County District Attorney Sherri Tibbe released a statement on April 28, the day of last week’s retrial hearing, saying her office firmly stands by its case against Shipman.
“We have investigated the allegations made by Ms. Peach and feel strongly that the law and the facts show no misconduct in the prosecution of this case,” Tibbe said. “Our office and our prosecutors are held to the highest ethical standard. We are confident that, at the conclusion of this hearing, the Court will agree that there was no misconduct.”
SMPD Chief Howard Williams, in a response to a question regarding Peach’s allegations said, “I do not have anything to say. No one has told me what the allegations are, no one has filed a complaint, and no one has presented any evidence of any misconduct.”
Tibbe’s office has declined further comment, saying its previous statement will be the only one on the matter. Watts has asked for a hearing to determine if the Hays County District Attorney’s office should recuse itself from the case as well.
“I think we can work this out without a hearing,” Tibbe said.
On April 21, in Arizona v. Gant, the U.S. Supreme Court ruled in a 5-4 decision that police have to demonstrate an actual and continuing threat to their safety posed by the arrestee, or a need to preserve evidence from tampering, to justify a warrantless search of a vehicle.