Tuesday, April 22, 2014

Radio news questions Perry PREA stance in light of consultant report

On Texas Public Radio, LBJ School instructor Michele Deitch and TDCJ guard union president Lance Lowry were interviewed yesterday on the subject of Gov. Rick Perry's declaration that Texas won't comply with new Prison Rape Elimination Act standards, honing in on contradictions between Perry's characterization of PREA requirements and the actual consultant's recommendations first discovered by this blog via open request.

They also discussed ongoing litigation over excessive heat in Texas prisons and today's House committee hearing on mental health and the justice system. Give it a listen.

See related Grits posts:

Report: 'Deadly Heat in Texas Prisons'

A new report (pdf) titled "Deadly Heat in Texas Prison" from the Human Rights Clinic at the University of Texas School of Law argues that, "The Texas Department of Criminal Justice (TDCJ) is currently violating the human and constitutional rights of inmates in Texas by exposing them to dangerously high temperatures and extreme heat conditions." Citing recent court precedent, they argue that:
The United States Court of Appeals for the Fifth Circuit has recognized time and again that extreme heat in prisons can constitute a violation of inmates’ Eighth Amendment rights. In a 2012 case, a 63 year old Texas prisoner presented with a preexisting blood pressure condition, and was taking medication that would affect his body’s ability to regulate temperature. The court decided that a reasonable jury could conclude that a failure to provide air conditioning, among other things, to an individual with these conditions was a violation of the prisoner’s constitutional rights. Most recently, the Middle District of Louisiana issued a decision in 2013 condemning the extreme heat conditions in a Louisiana prison facility similar to those conditions present in TDCJ facilities as a violation of the Constitution. There is therefore clear and recent precedent for denouncing the hot conditions in TDCJ facilities as violating the guarantees and rights of inmates under the Eighth Amendment.
On page ten of the report there's a TDCJ temperature log from the Hutchins unit indicating that temperatures reached 114 degrees Fahrenheit and the "heat index" at mid-day reached as high as 149-150 degrees. According to the report, "almost half of TDCJ facilities are built with outer walls that are either partially or fully constructed from metal. Temperatures in these metal-constructed facilities are consistently higher than ambient temperatures or temperatures in concrete facilities. Inmates housed in these facilities have no way of escaping the heat, and are placed at risk of suffering heatstroke as a result."

The report recommends implementing standards similar to those promulgated by the Texas Commission on Jail Standards for county jails, where Sheriffs are required to keep jails below 85 degrees Fahrenheit, or nearly 30 degrees lower than the highest temperature documented at the Hutchins unit in the TDCJ log mentioned above. Those interested should read the whole report.

After the federal court ruling in a Louisiana case last year and the 5th Circuit's ruling that Texas can be sued on the topic, Grits expects TDCJ to ultimately lose the pending heat litigation and for the Legislature to eventually find itself forced to implement significant mitigation measures to reduce heat exposure of inmates and guards. It won't be popular but if the 5th Circuit rules like they did in Louisiana, they won't have a choice.

MORE: From the Austin Statesman.

Innocence lauded, justice delayed, violence declining, mercy contemplated

Here are a few odds and ends that haven't made it into individual Grits posts but deserve readers' attention:

Innocence Project of Texas in the news
My employers at the Innocence Project of Texas received some good press in the New York Times and Texas Monthly where Maurice Chammah had a piece (April 19) describing a suggestion "to have all of the state’s innocence clinics adopt a single, centralized intake system for letters, with a single process for identifying viable cases." Currently, the state's four law-school-based innocence clinics suffer from a great deal of redundancy as inmates may send the same request to each school and resources are wasted vetting the same cases with thousands of others stacked up behind them. The story also mentioned that IPTX has taken on the case of Emanuell Randolph, a Fort Bend County man who was convicted based on a dog-scent lineup conducted by then-Fort Bend Deputy Keith Pikett, whose methods have been criticized as junk science by the Texas Court of Criminal Appeals. (For details of the case, see this 2012 appellate ruling on a different issue.)

TX House committees to consider mental illness, substance abuse
Terri Langford at the Texas Tribune has a preview of a hearing today at the Texas Legislature addressing issues related to inmates with mental illness and substance abuse problems. Go here to watch it online beginning at 10 a.m..

Judge: Lack of conviction no reason not to imprison Jerry Hartfield
The Houston Chronicle reported Sunday on the strange case of Jerry Hartfield, a "57-year-old prison inmate who has spent more than three decades in prison without a lawful conviction on the books." Reported Mike Tolson:
State District Judge Craig Estlinbaum was not swayed, pointing out that for all the years Hartfield sat in prison without a valid judgment against him after his conviction was overturned, it wasn't until 2006 that he was moved to do something about it. That delay meant he pretty much forfeited his right to complain about it now, the judge said. That places the fault for years of incarceration with no valid conviction not on the judges or lawyers involved, but on an inmate with an IQ supposedly below 60.

"The responsibility placed upon the defendant or his counsel to assert the right is not a burdensome one - a motion for speedy trial or motion for trial setting need do little more than demand that a trial should be set and conducted," Estlinbaum ruled, rejecting a motion that if granted would have dismissed the charges against Hartfield.
Gov. Mark White commuted his original 1976 sentence from death to life, but the Court of Criminal Appeals overturned his original conviction because of errors in jury selection and ordered a new trial, which Matagorda County prosecutors never pursued. Wrote Tolson, "'There is one thing it should draw attention to,' [his lawyer] said. 'Guys who are not sentenced to death don't have lawyers appointed for them. Once the death sentence was removed, he didn't have anyone to represent him. They are left to raise these appeals on their own. And Mr. Hartfield, with an IQ below 60, couldn't really do that.'"

HPD failed to investigate numerous homicides
The Houston Chronicle reported over the weekend (April 19) on allegations that HPD Homicide Sgt. Ryan Chandler failed to investigate numerous homicides he was assigned and his supervisors failed to catch the problem for years. After he was transferred to another division in October, "files in 11 homicides assigned to him couldn't be located, that the Houston Police Department launched a full investigation." The department accused Chandler of:
failure to adequately investigate 15 deaths, misplacing files and evidence, and falsifying police records. [Chief Charles] McClelland fired Chandler this month.

Those and other serious shortcomings involving Chandler and seven other officers in the elite homicide division - all of whom received lesser punishments announced April 4 - were laid bare in disciplinary letters obtained last week by the Houston Chronicle through an opens records request.

Among the seven were two lieutenants who supervised Chandler and knew of his failure to testify and his incomplete investigations for more than a year without reporting him to higher-ups. Two other officers disciplined for poor performance were Chandler's partners, one of whom, alongside Chandler, failed to even go to a murder scene in the death of a 30-year-old Hispanic man.
Should judges be removed from indigent defense decisions?
That's the question posed in an article published on Sunday in the El Paso Times, citing an "American Bar Association recommendation from 2002 that encourages the legal community to keep judges out of the 'selection, funding and payment of defense counsel' to maintain the independence of the judiciary and prevent perceived or real conflicts of interest." El Paso (and most other counties) also does not follow the ABA principle that "resources should be equal for prosecutors and defense attorneys," the article noted.

Prisoner art as rehabilitation
The Texas Tribune has a story on an exhibit sponsored by the Texas Criminal Justice Coalition (for whom your correspondent has recently been performing some unrelated consulting work) and the City of Austin featuring art by women inmates. "The project aimed to draw focus to the more than 12,000 women currently in Texas prisons, said TCJC executive director Ana Yáñez-Correa. Art, she said, brings life to the mental health problems and the trauma that can lead women to make bad choices that result in prison time." Reported the Trib, "advocates for prisoner rights say they plan to ask lawmakers next year to put aside more money to provide inmates with better access to art supplies and more rehabilitative programs that include art therapy."

Domestic violence rates way down since mid-90s
Per capita rates of domestic violence - like crime rates generally - have been steadily dropping for 20 years, according to a new report from the federal Bureau of Justice Statistics. The rate of domestic violence fell 63% from 1994 to 2012, said the report, from 13.5 victimizations per 1,000 to 5.0. The rates of serious domestic violence also dropped, with intimate partner violence dropping far more than violence by immediate family members or other relatives. Even so, according to the feds, "Intimate partner violence (15%) accounted for a greater percentage of all violent victimizations, compared to violence committed by immediate family members (4%) or other relatives (2%). Well-known or casual acquaintances accounted for 32% of all violent victimizations, and strangers accounted for 38%." The Dallas News has been featuring an extended series on domestic violence cases in the DFW area.

Obama may embrace clemency for non-violent drug offenders
President Obama has one of the stingiest clemency records of any American president. But that may soon change, according to this Yahoo News article.
A senior administration official tells Yahoo News the president could grant clemency to "hundreds, perhaps thousands" of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn't been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.

The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve.  Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer.

Monday, April 21, 2014

Hidalgo Sheriff, associates plead guilty to money laundering, bribery related to drug trafficker

You know, the Sheriff's got his problems too.
He will surely take them out on you.
- Warren Zevon, Mohammed's Radio

Reported the Texas Tribune last week (April 17): "Former Hidalgo County Sheriff Guadalupe 'Lupe' Treviño, a nine-year veteran of the office and a fixture of the region’s Democratic Party, pleaded guilty on Monday to federal charges of money laundering. The U.S. Attorney’s Office for the Southern District of Texas said the former lawman 'received cash contributions for his election campaign from alleged drug trafficker Tomas 'El Gallo' Gonzalez.'”

Over the weekend (April 20), the McAllen Monitor followed up with a discussion of the implications of the Sheriff's plea for related civil litigation alleging that a former political opponent of the Sheriff is entitled to receive twice the amount of the alleged bribes from Treviño as compensation:

[On] Jan. 30, former candidate for sheriff Robert Caples sued then-Sheriff Lupe Treviño alleging that in the 2012 election, the incumbent received cash donations from Weslaco drug trafficker Tomas “El Gallo” Gonzalez.
Gonzalez gave the cash to sheriff’s Cmdr. Jose Padilla, who took it to Treviño, who then consulted with District Attorney Rene Guerra and deposited the money into his campaign bank account, from which the sheriff wrote a check to Gonzalez that was never cashed, according to the lawsuit.

The allegations in the lawsuit mirror the facts of a case in which Treviño pleaded guilty to the charge of money laundering this past Monday before U.S. District Judge Micaela Alvarez.

Three days before Treviño’s plea, his chief of staff, Maria Patricia Medina, went before Chief U.S. District Judge Ricardo Hinojosa and entered a similar plea to the charge of failing to report a felony. During the hearing she admitted to doctoring the campaign reports.

Most recently Padilla went before U.S. District Judge Randy Crane and pleaded guilty to the charge of bribery, admitting to having taken approximately $90,000 from Gonzalez in exchange for law enforcement information and protection.

“He admitted in federal court to the same facts that are listed in our lawsuit,” said Javier Peña, the attorney representing Caples. “If you look at the Election Code, not reporting the contributions is a violation and my client is entitled to twice the amount of the violation.”
So the Hidalgo County Sheriff, his campaign manager and a top commander in the office have all pled guilty to bribery or money laundering charges related to laundering campaign contributions from an alleged drug runner, doctoring campaign reports to cover up the transactions. What a friggin' mess!

Prosecutors see hot-check accounts declining as check writing becomes passé

County Attorneys' hot-check fund accounts have ebbed as “Check writing is becoming a thing of the past,” reported the Odessa American on Sunday, magnifying a trend the paper had first documented three years ago.
County attorneys have prosecuted hot-check issuers for more than 40 years in Texas, but fewer checks being written may spell the end of the hot check fund.

With the Ector County hot check fund sitting at about $44,000, down from a high of more than $250,000 five years ago, County Attorney Scott Layh said it won’t be long before the fund will not be sustainable.
Reduced use of written checks combined with the trend away from using hot-check prosecutions to subsidize payday lenders has caused these once-lucrative revenue sources to dwindle. It'd be interested to see county-by-county data on these accounts.

Crime lab delays, plea mill culture contribute to drug-war innocence cases

The Court of Criminal Appeals last week granted habeas corpus relief in yet another actual innocence case in which a man from Harris County pled guilty to drug possession only to have a crime lab later find "that the substance Applicant possessed contained no controlled substances." In a report in Sunday's Austin Statesman ("Lab delays create Texas' unknown exonerees") Eric Dexheimer reported on finding 21 such cases in recent years, including Wilkins. In those cases:
After the 14 men and seven women were arrested and charged — typically with possessing a small amount of drugs, many mere dustings — samples of the confiscated substances were sent to public labs for conclusive identification. Before the results came back, however, the defendants pleaded guilty, usually within days, and began serving their jail or prison sentences.

Because of lab backups or delays, the test results declaring them innocent didn’t arrive until months or, in a handful of cases, years later. ...
Prosecutors say there are almost certainly more examples, although no one is keeping close count. (The University of Michigan Law School maintains a nationwide exoneree registry, but it is incomplete.) Though the false-positive drug cases date to 2005, their incidence has accelerated, with 14 of the wrongly convicted earning exonerations within the past two years.
Notably, "Thirteen of the cases identified by the newspaper were handled by the Houston Police Department’s crime lab," Dexheimer reported, while "Eight of the cases used forensic testing facilities operated by the state Department of Public Safety." Though labs are understaffed and wait times can be long - in some of these cases lab results didn't come back for two, four, or even six years, that's not the only driver of this phenomenon. Wrote Dexheimer:
Critics say it would be simplistic to lay the blame entirely on an overburdened forensic testing system. Defense lawyers complain that police share responsibility for making crimes out of inconsequential drug busts. More than half of the defendants identified by the newspaper were charged with possession of barely a gram — the size of a quarter of a teaspoon of sugar — or less of what were thought to be illegal drugs.
Some of these cases involved people arrested for trace amounts scraped from paraphernalia, and in one case a woman was arrested because police thought white crumbs on her face were cocaine. In some cases defendants thought they were guilty and in others, they plead out to avoid spending more time incarcerated, particularly in lower level state-jail cases. Defendants are under tremendous additional pressure to plead out when they're sitting in jail pretrial - particularly if labs may take months or years to come back with results. Wrote Dexheimer:
“If you can get out on a (personal recognizance) bond, then I recommend waiting until the lab results come back,” said his attorney, Ben Sullivant. “But if he’s in jail and can’t get out and it’s a matter of waiting months for the lab, a lot of people are going to want to get out.” ...

Pressure from lawyers on both sides can also push cases to a plea bargain before evidence is returned. More than 98 percent of felony drug possession cases settle before trial, according to the state’s Office of Court Administration, thanks to such deals. Without them, the court system would become swamped and grind to a halt.
Prosecutors have a legal incentive to move what appear to be open-and-shut cases along quickly. When a defendant is held in jail, state law requires that cases be presented to a grand jury for indictment within 90 days. Most prosecutors prefer not to do that without a lab report.

“We encourage people to plead by giving them pretty good deals on the front end,” said Montgomery County’s [Assistant District Attorney Phil] Grant.

Yet that encouragement can veer into coercion. In November 2011, Brunner, who’d left the district attorney’s office for private practice (he became a prosecutor again in 2012), wrote a letter to the Round Rock Leader noting what he today describes as the former DA’s “bullying” tactics.

“It is common practice that many of those felony plea bargains are given to defense counsel and their clients on a ‘one-day only’ basis — meaning take it today, or the deal gets worse,” he wrote. “And that ‘today’ is often the first day the attorney and client have ever been in court … with the veiled warning that if a deal is not speedily taken, the stakes for the client could get much worse.”

The result: “They are made to choose between a plea bargain right now, when I have not had a chance to fully evaluate their case, or suffer a worse bargain later, after I have had the chance to do my ethical best to collect all the evidence in the state’s hands.”

On the other side, defense attorneys — often harried public defenders catching small-time drug offenses — are tempted to accept the deals quickly. “Sometimes, the earlier offers are the best you’re going to get, so you grab it before it gets to the grand jury,” said Cynthia Cline, who negotiated Rosa Sade Bates’ guilty plea in Harris County, 10 months before her drug test came back negative.
There's a lot going on here. (In March we had a good discussion of many of these issues with Shannon Edmonds of the state prosecutors' association in the comments to this Grits post.) While much of the blame may be rightly placed on underfunded crime labs which can't process so many drug cases, and no doubt some of these defendants may have thought they possessed drugs, IMO the main culprit is the plea mill system through which low-level drug cases are processed. The system simply is not resourced - either the labs, indigent counsel, or the courts - to process the massive volume of drug war cases it's currently required to handle in a way that rigorously vets for innocence or protects defendants' rights.

The Dallas "sheetrock scandal" in 2001 was the most prominent Texas example of multiple defendants being convicted via plea deals even though the drug evidence was never tested and turned out to be fake. In that case, nearly two dozen defendants pled guilty faced with absurdly long sentences for possession of large amounts of cocaine that turned out to be fake drugs used by corrupt cops and paid confidential informants to intentionally set up innocent people. While Dexheimer found no overt police corruption in the 21 cases examined by the Statesman, the same pressures described above contributed to that high-profile fiasco.

There are a few potential legislative fixes that might help. For starters, as a number of Harris County judges have long advocated - these less-than-a-gram drug cases shouldn't be felonies, anyway. They clog up the courts and contribute little to public safety. But if they're going to be felonies, perhaps the Lege should require that plea deals not be finalized until lab results come back. Indeed, if lab results take longer than a couple of months on low-level drug cases, the courts should be required to release defendants on personal bond. The urgency to plea these cases out before all the evidence is in stems mainly from the fact that defendants are sitting in jail for months on end pretrial waiting for the evidence to wend its way through the crime lab backlog.

If the state's not going to adequately fund crime labs - and they've massively expanded crime lab capacity in recent years without getting a handle on the problem - then they need to look to relieve pressure on the system in other ways. These 21 cases are symptoms of a much more pernicious disease - drug war overreach. If Texas wants to prosecute the drug war at the levels we do today, it must pay for sufficient resources to handle the volume. At the moment, not just in these innocence cases but generally, the state's drug-war reach exceeds its grasp.

Sunday, April 20, 2014

Ellis, Harrington: Reduce incarceration levels at Harris County Jail

State Sen. Rodney Ellis and Texas Civil Right Project chief James Harrington recently wrote a letter to the Harris County Budget and Management Office suggesting alternatives to incarceration to avoid continuous requests for variances from the Texas Commission on Jail Standards for extra jail beds, something the county has done eleven times since 2006. According to the letter:
Harris County's criminal justice system ... continues to use incarceration as its primary way of dealing with individuals with mental illness and low-level drug users. About a quarter of the inmates in the Harris County Jail are taking some kind of medication for mental illness. When looking at the six largest counties in Texas, Harris County leads in the annual number of people per capita it sends to state jail for low-level drug possession of less than one gram.

Spending taxpayer dollars to incarcerate non-violent offenders would make sense if it made our community safer, but studies show that these options are less effective and more expensive than strategies that divert defendants charged with non-violent crimes from incarceration.
Harrington and Ellis argue that the county should develop a written plan to eliminate extra jail beds and embrace alternatives to incarceration, including several specific examples. See the full letter for details.

See related, recent Grits coverage.

Wednesday, April 16, 2014

Radio discussion of Texas' Driver Responsibility surcharge

In the wake of Monday's public hearing on the topic, I was interviewed this afternoon on Texas Public Radio's KSTX out of San Antonio along with Ana Yañez Correa of the Texas Criminal Justice Coalition and John Hawkins from the Texas Hospital Association about Texas' Driver Responsibility surcharge. Go here to listen to the 21.5 minute segment which included several callers critical of the program, some of whom had personal experience struggling to pay or even understand the surcharges levied against them. For more background, see TCJC's website devoted to abolishing the program.

Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'

The Texas Department of Criminal Justice (TDCJ) this week sent me the consultant's report regarding what would be required for Texas' adult prisons to comply with the Prison Rape Elimination Act, a document I requested under the open records act following Gov. Rick Perry's letter to US Attorney General Eric Holder announcing the state would not comply with PREA.

TDCJ brass were closely involved in the development of recommendations by The Moss Group, the consulting firm referenced in Perry's letter. According to the report, "top-level central and regional office executives and unit based senior management staff actively engaged in the analysis and remedy process along with the consultant team. Their daily participation and interaction with the consultant team is a testament to the value and importance they have placed on realizing compliance with this PREA standard."

Indeed, it appears the Governor's letter significantly overstated the scope and negative impact of the consultants' recommendations. Wrote Perry:
Because PREA standards prohibit most cross-gender viewing, TDCJ would be compelled to deny female officers job assignments and promotion opportunities, simply based on their gender. A consultant referred to TDCJ by the PREA Resource Center absurdly suggested that TDCJ solve this problem by removing security cameras and obstructing line of sight. That is ridiculous. Doing so would not only be a security risk for both prisoners and staff but also increase the likelihood of assaults taking place, defeating the intent of the law.
As it turns out, that was an exaggeration. The recommendations would by no means "prohibit most cross-gender viewing." In fact, the limitations suggested were remarkably modest and narrow.

As far as "removing security cameras," there were two references. They suggested that cameras shouldn't be "pointed directly into the dormitory bathrooms allowing remote cross gender viewing of inmates," noting that "it is not a mainstream practice to have cameras pointed directly into toilet and shower areas." If it's true that's "not a mainstream practice" and other correctional facilities across the country operate without aiming cameras at the bathrooms, why can't TDCJ?

Similarly, regarding "obstructing line of sight," the consultants suggested that "privacy mesh screens could be used to obscure the inmates' buttocks and genital areas during strip searches while still affording staff appropriate views of the inmates for security purposes." In documents that TDCJ (inexplicably) did not include in their response to my request, "The process of identifying the precise spots on the floor or ground that could be marked where inmates could stand to be outside of camera or other view was laid out." The goal was to "moderate or curtail" cross-gender viewing, not to ban it.

The other mention of obstructed viewing involved work areas and housing pods "where inmates could be viewed showering or using the toilet facilities," but the consultant said those "were less of a challenge. The team found that many of the areas currently open to cross-gender viewing could be easily mitigated with half shower doors and privacy panels that would not impede security viewing of the offenders."

The report did not suggest eliminating female CO positions nor that women officers couldn't staff men's prisons, nor would the recommendations forbid viewing inmates in showers and restrooms for security purposes. They recommended slight modifications in how pat down searches were conducted but didn't say women couldn't do them. And they recommended that female "escort staff" move out of the line of sight when strip searches were being performed. But if they're not performing the strip searches, anyway, such a restriction hardly means TDCJ would be "compelled to deny female officers job assignments and promotion opportunities, simply based on their gender."

Overall, the consultant found that TDCJ for the most part complies with the law already and did not have far to go to meet PREA standards. "Prior to the onsite work, TMG Consultant Jeff Shorba conducted a review of TDCJ policies related to cross gender viewing and searches. He found the policies to be comprehensive and well written and needing only very minor refinement. It is clear that TDCJ has expended enormous effort in the timely address of PREA requirements." That and the fact that TDCJ's general counsel seemed unaware of the governor's concerns makes one wonder about the defiant tone in Gov. Perry's letter.

Indeed, nobody at TDCJ seemed to have told the consultant their concerns were "absurd." Instead, "The department and unit staff appeared receptive to the recommendations offered and seemed confident that the solutions proposed were reasonable and viable." It's difficult to understand how Texas got from there to Gov. Perry calling the recommendations "absurd," "ridiculous," "ill-conceived," and "inconsistent" with federal laws.

I was only sent this six-page memo, but it appears there should have been more documentation that was responsive to my open records request. I sent TDCJ a followup email yesterday declaring:
I'd also asked for any correspondence to and from the consultant. Is it the case that no one at TDCJ had any email exchanges with the consultant before or after this report was issued? That seems unlikely. If there was such correspondence, please find it and forward it, including any attachments.

In addition, according to the report, "At the end of each unit analysis, a comprehensive, facility-specific closeout detailing findings, conclusions and recommendations was conducted." However, those facility-specific recommendations were not included in your response. Could you please locate them and forward them? That information to me seems as though it should be responsive to my March 28 request.  
If I get more details in response, obviously I'll post them at a future date. The whole episode strikes me as peculiar. You'd think if TDCJ found the consultant's recommendations untenable, somebody would have mentioned it to The Moss Group before the governor issued his letter.

MORE: Via the Texas Prisons blog from the president of the TDCJ guards union, Lance Lowry, who called Perry's claim of potential gender discrimination because of PREA compliance "nonsense."

See prior, related Grits posts:

Tuesday, April 15, 2014

Lege ponders effect of 'Driver Responsibility' surcharge on DWI convictions

The Texas House Homeland Security and Public Safety Committee yesterday met to discuss suggested reforms to the misnamed "Driver Responsibility Program" (in addition to hearing invited testimony about the fertilizer plant explosion in West last year). See coverage of the hearing from the Houston Chronicle, the El Paso Times, and the Texas Tribune.

Your correspondent and numerous others have been trying to get the Legislature to reform or preferably abolish this program for years, but this may be the first time a legislative committee has fully embraced the idea that major revisions are necessary and the program may need to be scrapped. You can watch the hearing online here. The portion on the Driver Responsibility surcharge begins at the 2:21:45 mark.

Here's a link to written testimony I presented on behalf of the Texas Criminal Justice Coalition and a report on the topic (pdf) that the group published last year. TCJC has put up a website advocating abolition of the Driver Responsibility surcharge to provide background and gather stories from people who've experienced problems with this misbegotten policy. Check it out and, for those affected, add your story.

First up at the hearing were two representatives from DPS described a range of suggestions for reforms developed in a working group with their vendor and reps from the Travis County courts. Grits last year acquired their list of recommendations under open records. See it here (pdf). A few of their suggestions can be implemented administratively without legislative authorization and some of them will be included in new rules that will be presented in June to the Public Safety Commission and published in the Texas Register soon thereafter for public comment. Most of the significant changes, though, would require legislative action.

Even Bill Lewis of Mothers Against Drunk Driving spoke favorably about TCJC's written testimony (see his remarks at the 3:23:50 mark), which overall seemed well received by the members. He supports the surcharge because part of it pays for uncompensated care at trauma centers in Texas hospitals, which play a huge role in saving drunk driving victims. But he was open to subsidizing hospitals in other ways - e.g., potentially a small, additional dedicated tax on alcohol. He acknowledged that the surcharge has no deterrent effect on DWIs, in part because nobody knows about it (he called it "virtually a secret program"). Others testifying reiterated that most drivers know nothing about the program and many people pay tickets for no driver's license or no insurance without understanding they'll later face three years of surcharges. Lewis suggested that judges be given flexibility to reduce or waive surcharges in DWI cases.

One unintended consequence to the surcharge received more attention at yesterday's hearing than it has in the past, though the problem has been ongoing: Judges and prosecutors who consider the surcharges unjust have been allowing defendants charged with DWI to plead to lesser charges to avoid them. Rebekah Hibbs of DPS told the committee about a county that called them to ask if the charge of "obstruction of a roadway" carried a surcharge. She told them "no" and they replied that, in that case, they were going to begin pleading all their first offense DWIs to that charge to keep the surcharge from applying.

Retired Judge David Hodges (see his testimony @ 4:08:55), who now conducts training for judges on behalf of the Texas Association of Counties, told the committee that the surcharge law caused a 30% reduction in DWI convictions from 2003 to 2013, even though the number of arrests for DWI has increased. He said an officer from the Bryan-College Station area told him just last week that first-offense DWIs in his county were being charged as obstruction of a roadway for just that reason. Hodges suggested that, if the surcharge were eliminated, the state would likely see more additional fine and court cost revenue from DWI cases than it was gaining from the surcharge, suggesting that some of that money could be designated for trauma centers.

Hodges also suggested that reinstating deferred adjudication for DWIs might help the situation, since deferred cases don't formally result in a conviction and thus wouldn't incur a surcharge. Deferred adjudication was eliminated for DWIs a few years back in one of the Lege's reflexive spasms of tuff-on-crime demagoguery.

MADD's Bill Lewis offered particularly remarkable testimony regarding the surcharge-driven decline in DWI convictions, declaring that his group "agree[s] that DWI surcharges may actually hinder DWI prosecution." But, said Lewis, "when you get right back down to it, we've made the judgment that it's more important for the trauma centers to be there and to be well funded than it is to be disposing of DWI cases." Just think about that! The idea that MADD is willing to tolerate fewer successful prosecutions for DWI to keep trauma hospitals funded struck me as downright amazing. Obviously, he'd prefer those cases were successfully prosecuted, referring to the account of counties pleading the charges down as "horror stories." The surcharge has placed MADD in a Catch-22 situation, forcing them to choose between prosecuting drunk drivers and maintaining a robust trauma care system to deal with the aftermath of crashes caused by drunk driving.

But the star of the show was Williamson County Justice of the Peace Edna Staudt (@ 3:34:36 on the video), who launched an impassioned jeremiad against every aspect of the program. Of all the speakers, including those from the hospitals, she was the only one who refused to offer reform suggestions, insisting that the program was so badly broken that nothing but abolition would suffice. "This program creates more havoc and more mess than its worth," she told the committee. "It is an unjust system."

She told the committee that the income thresholds on the indigency and incentive programs were too low to help average, working people who still couldn't afford to pay their surcharges and needed driver's licenses to be able to work and feed their families. She also complained that the surcharge usurped judicial authority and was creating a "debtors prison" situation where people who couldn't pay would lose their licenses, then later be charged with a crime for not having a license and end up in jail. Suggestions by DPS to crack down even harder for nonpayment of surcharges, she said, would make the situation even worse.

The truth is, Judge Staudt is 100% right. TCJC offered suggestions to mitigate harms because the Lege has been unwilling to confront the issue head on. But even in our written testimony, we emphasized that, "The Texas Criminal Justice Coalition hesitates to suggest reforms that might make the Driver Responsibility surcharge sustainable, even temporarily, because the program is fundamentally unfair and suffers from deep, abiding flaws. The Legislature should eliminate it entirely and pay for trauma hospitals out of general fund revenue or some other source."

The only serious pushback against reform at this point comes from trauma hospitals that receive millions in funding from the surcharge. Their situation has become even more tenuous after the state refused to expand the Medicaid program under the federal Affordable Care Act, as they're losing millions because of reductions in Disproportionate Share Hospital funding that pays for uncompensated care. (The ACA reduced that funding on the grounds that Medicaid expansion would cover most of those uninsured patients.) So if the Legislature were to abolish this program, they'd need to find an alternative funding source to subsidize trauma hospitals. Chairman Picket likened the task to the scene from Raiders of the Lost Ark where Indiana Jones swapped a bag of sand for an idol, but said it needed to be done in such a way that did not result in a giant stone ball hurtling toward their backs.

Even the hospital reps, though, acknowledged that changes must be made to address unintended consequences facing drives, supporting a more robust Amnesty program and other reforms tinkering around the edges of the program. From my own, private conversations with the hospital folks, it's clear to me they wouldn't mind if the surcharge went away entirely so long as they continued to receive subsidies for uncompensated care. They just can't afford to lose the surcharge money at a time when federal subsidies for uncompensated care are being cut and the state seems unlikely to expand Medicaid anytime soon.

Grits was cautiously encouraged by the committee's reaction to yesterday's testimony. For perhaps the first time, this committee seems to have fully grasped the profound failings of the Driver Responsibility surcharge and appears to be forging a consensus that it must be either eliminated or subjected to radical reform. The main barrier to abolition will be finding money for the trauma hospitals, but that's not insurmountable. As I told the committee, the program is "a train wreck" and even its supporters can see it's not viable in its current form.

MORE (April 16): See an El Paso Times staff editorial advocating abolition of the program.They conclude, "Clearly, the Driver Responsibility Program is a failure. The Legislature should acknowledge that and repeal the law next year."

See prior, related Grits posts:

Monday, April 14, 2014

'Private defender' model suggested for Travis County

Travis County is considering big changes to the way it delivers indigent-defense services, taking most decisions out of the hands of judges and giving them to "a new office of Travis County Private Defender — an estimated $670,000 nonprofit under the control of the private defense bar," which "would assign lawyers to indigent cases, determine compensation for their work and derive a set of standards to evaluate their performance, the Austin Statesman reported Friday.

Travis County judges have already given up most authority to appoint attorneys - all of them use a "wheel" system that "has evolved into an electronic process under the Office of Court Administration, which takes applications from lawyers who wish to receive court-appointed referrals." Though "judges decide who stays on the list and what level of cases they are equipped to handle, an evaluation of now more than 250 attorneys that they say is cursory and happens only once a year."

As described the system aims to address the plea mill scenario created by high-volume legal representation:
There are no regular measures to review attorney caseloads, while judges have disparate methods for providing compensation and resources, and some decline to pay for more work, defense lawyers said. The result is a treadmill, on which lawyers are pushed to take quick plea agreements rather than taking more time on investigations or going to trial and on which defendants, many of whom are minorities, become trapped in the system, attorneys and legal officials said.

“I have had judges deny me the right to an investigator. I’ve had judges say, ‘Whatever you need,’” defense lawyer Jackie Wood said. “I would hope that one person or one office making the decisions would be better and more consistent than six or seven different personalities.”
That sounds good on its face, but in the end the question will come down to the amount of resources devoted by the county to indigent defense. A bureaucracy can deny funding for investigators as easily as a judge if the money isn't there.

Opposition to the idea, wrote reporter Jazmine Ulloa, comes from criminal defense lawyers afraid that "judges are simply looking for a way to trim attorneys who they believe are unqualified from the court-appointment wheel," complaining that "such cuts wouldn’t help those lawyers improve and would only lead to higher caseloads for others who remain on the list." That aspect of the change doesn't bother me, I must say, though I wish our elected judges would take care of the problem instead of outsourcing it to a nonprofit. However, I've worked my share of judicial elections and know judges are loathe to threaten the income of their most reliable source of campaign contributions. So I understand why it's difficult for them to manage that part of the process.

Even so, personally I'd prefer the county fund a full-blown public defender office to handle a significant chunk of its regular caseload, a model that has worked well in Dallas and Houston. From all I've heard, the parts of the Travis County system with public defenders (juvenile and mental health cases) work just fine. Why not expand the concept to handle more of the regular adult caseload?

The private defender model aims to fix only one aspect of the problem - appointment of unqualified attorneys - but cannot resolve two other issues that PDs are better suited to addressing: Resource allocation and providing an institutional counterweight to the District and County Attorneys Offices. Though PDs often get short-changed in the budgeting process, I feel like a formal division of government has a better shot at pushing for its fair share than a disparate group of private, self-interested attorneys running a couple hundred separate small businesses milking the government teat.

Which brings me to my second reason for favoring a public defender: On county-level policy issues, they provide an institutional presence that the private bar cannot muster. From pretrial detention policy to post-conviction SNAFUs like the Jonathan Salvador case, prosecutors tend to dominate local criminal-justice decision making. But counties with public defenders automatically have someone at the policy making table when important issues are discussed. And PDs provide a pool of expertise that becomes a resource for the entire criminal defense bar. The proposed private defender model - even if it's adequately funded - cannot meaningfully fulfill that institutional role.

Usually my (admittedly low) bar for whether to support a public policy change of this sort is whether the suggestion would be an improvement over the status quo. The suggested Travis County Private Defender probably meets that standard, but not by much. They'd be better off creating a full-blown public defender office to handle part of the adult caseload. It sounds like this process is pretty far down the road so I don't know if that can still happen, but it'd be my preference.

Thursday, April 10, 2014

Who is advising Rick Perry on prison rape?

After this blog broke the story about Gov. Rick Perry's letter to US Attorney General Eric Holder telling him Texas wouldn't comply with the Prison Rape Elimination Act, I sent open records requests to the Governor's office and the Texas Department of Criminal Justice asking for "copies of any report by the 'consultant referred to TDCJ by the PREA Resource Center' referenced in Gov. Perry's March 28 letter to US Attorney General Eric Holder as well as any correspondence to and/or from said consultant."

On Wednesday, I received an email from Assistant General Counsel Chris Sterner from the governor's office informing me that, "we have determined that the OOG has no information responsive to your request.  You may, however, wish to contact The Texas Department of Criminal Justice ('TDCJ') to obtain the requested information."

Here's the funny thing about that: I sent the same request to TDCJ at the same time I asked the governor. Last week I received a phone call from a legal assistant in TDCJ's general counsel's office, Jessica Cole, asking me to send them a copy of Perry's letter, which I did. She said the TDCJ general counsel's office knew nothing about any consultant's report and they appeared to know nothing about the governor's letter, either. I told her it had been covered pretty widely in the mainstream media and she replied, jokingly, "well, we don't get out much."

Cole told me on the phone April 2nd that the agency appeared to have no information responsive to my request. But I asked her to follow up with TDCJ's PREA Compliance division to make sure. Yesterday I received another email from Cole asking me to re-send Perry's letter to another legal assistant in their office. He is apparently following up and maybe they'll find the report, assuming it exists.

Still, all this strikes me as quite strange. Governor Perry sends a strident letter to the feds claiming Texas can't comply with PREA because a consultant issued "absurd" recommendations that would violate federal labor law. But the governor's office hasn't seen the consultant's report and the TDCJ general counsel's office a) knew nothing about a consultant and b) hadn't seen Perry's letter.

The fact that neither Perry's office nor the TDCJ general counsel have seen a consultant's report makes me wonder who wrote this letter. Based on whose legal advice did Perry conclude that complying with PREA "would likely cause the Texas Department of Criminal Justice (TDCJ) to violate federal labor laws"? Was that an actual legal interpretation or some sort of political grandstanding? Where is the governor getting his legal advice on this topic?

It begs credulity to imagine Perry authored that letter himself. One wonders, who wrote it and why didn't Perry's office run it by TDCJ's lawyers?

Perry's decision to thumb his nose at PREA regulations has received national attention, so maybe it was just a way to play to the GOP base by snubbing the Obama Administration in preparation for his widely anticipated (re)run for president. I can't tell what's going on. It's a head scratcher.

First alleged serial rapist identified from Houston rape-kit backlog

Grits reported on Sunday that the Houston crime lab identified hundreds of hits when it ran results from old rape kits through CODIS, the national DNA database, including 26 possible serial rapists. Now, Houston PD has identified the first of those, the Houston Chronicle reported yesterday:
Houston police on Tuesday for the first time identified a criminal suspect - a possible serial rapist - from testing of sexual assault kits that once gathered dust in the police property room.

HPD sex crime investigators said Herman Ray Whitfield Jr., 43, has been charged with four counts of aggravated sexual assault going back to 1992, and said he may have had more victims. One of his victims, police said, was a 12-year-old.
DNA linked Whitfield to four local cases, with victims ranging from 12 to 30 years old.

As Grits reported over the weekend, the crime lab has uploaded samples to CODIS in 1,662 cases out of 9,723 samples outsourced to private vendors for analysis. So far, they've found 607 "hits," including 26 instances with multiple "hits" on the same alleged offender, apparently including Mr. Whitfield.

We can expect numerous iterations of this same story in the coming months (and possibly years), including some instances where crimes have passed the statute of limitations and can't be prosecuted.

Report: Texas jails and prisons warehousing thousands of mentally ill

The Treatment Advocacy Center has issued a new report titled "The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey." Here's a notable excerpt from their findings on Texas:
The North Texas State Hospital, with 692 beds, is the largest remaining state psychiatric hospital. The Harris County Jail in Houston, where “25 percent of the prisoners receive psychotropic medication” (Bellaire Examiner, May 18, 2012), has over 8,000 inmates and thus is certainly the largest “mental institution” in the state. In Bexar County, “about 21 percent of the inmates suffer from mental illness” (San Antonio Express-News, Aug. 8, 2010). In both Bell and El Paso Counties, “about 40 percent of the inmates” are being treated with psychotropic medications “or need those medicines” (Texas Tribune, Dec. 16, 2010; KWTX, July 24, 2013).

One of the most depressing aspects of the situation for prison and jail officials is to see the same people repeatedly cycling through their facilities. In Harris County, almost 600 mentally ill individuals “cycled through the jail at least five times in the past two years” (YourHoustonNews.com, May 22, 2013). They include Patricia George, 34 years old and diagnosed with schizophrenia; she has been charged with 31 misdemeanors and 12 felonies and has already spent nine years in jail (Houston Chronicle, July 21, 2008).

Texas is among the states with the lowest number of public psychiatric beds and among the stingiest states in per capita mental health spending. Some of the jail overcrowding is directly attributable to having no available psychiatric beds. In 2010, the Bexar County Jail had 100 jail inmates waiting to be transferred to a state hospital, and the Dallas County Jail had 103; since then, the situation has only gotten worse (San Antonio Express-News, Aug. 8, 2010).
The group's recommendations were to:
  1. Provide appropriate treatment for prison and jail inmates with serious mental illness
  2. Implement and promote jail diversion programs
  3. Promote the use of assisted outpatient treatment (AOT)
  4. Encourage cost studies
  5. Establish careful intake screening
  6. Mandate release planning
See additional coverage from MSNBC.

H/T: Sentencing Law and Policy.

Epic Fail: Critiquing the 'Driver Responsibility' surcharge

At the Texas Tribune, Cathaleen Qiao Chen has a substantive overview of problems with the Orwellian-named "Driver Responsibility" surcharge in which your correspondent is quoted. Long-time readers know of Grits' profound disdain for this program, in which 60% of assessed penalties go uncollected. Around 1.3 million Texans currently have suspended licenses because of the surcharge, which is a civil penalty assessed in addition to criminal fines and penalties for offenses like driving with an invalid license, no insurance, and DWI. Williamson County Justice of the Peace Edna Staudt told the Trib that "she believes the program is unconstitutional because it penalizes drivers twice for the same violation."

I'm all for funding the state's trauma hospitals but this is the wrong way to do it. Better to pay for them out of the general fund or charge sin taxes on alcohol or junk food. A slight reduction in the amount socked away in the state's "rainy day fund" would easily do the trick. Besides, the state isn't distributing all the money to hospitals anyway, hoarding hundreds of millions in the "dedicated" account for trauma centers in order to help balance the budget. There's enough money in that account that, at current payment rates, the state could fund trauma centers through 2021 even if the Lege decided to abolish the surcharge next year. And half the surcharge money goes off the top straight into the general fund - hospitals never see most of it.

I've been performing some consulting work for the Texas Criminal Justice Coalition on the topic, helping them prepare reform proposals for a legislative committee hearing on Monday. Grits will post more on the topic after the hearing.

See prior, related Grits posts:

Wednesday, April 09, 2014

Colloff recounts CCA oral arguments on Hannah Overton writ

Pam Colloff at Texas Monthly has posted an item describing oral arguments regarding the habeas corpus writ for Hannah Overton, a Corpus Christi mother of five who was prosecuted for capital murder for the alleged poisoning of her four-year old foster child. This detail jumped out: Remarkably, [Nueces ADA Doug Norman] distanced himself from the most damaging charge that prosecutors had made against Hannah at her murder trial: that she had pinched Andrew’s nose, gripped him around his neck, and forced a lethal slurry of salt and water down his throat."

Instead, prosecutors are hanging their hats on the theory that Overton delayed taking her child to the emergency room. Wrote Colloff, “Technically, Norman was right; according to the unusual wording of the jury charge at Hannah’s trial, jurors had only needed to believe one of two scenarios to find her guilty: that she deliberately made Andrew ingest a lethal amount of salt, or that she purposely neglected to get timely medical attention, knowing that this would kill him. In fact, as the polling of jurors showed after the guilty verdict was handed down, not one of the twelve jurors believed that Hannah had poisoned Andrew, but they had still found her guilty of capital murder 'by omission,' or by failure to act.”

The idea of capital murder by omission ranks as one of the stranger legal theories Grits has run across. I always thought that's what manslaughter charges were for. See Colloff's earlier coverage of the case.

Tuesday, April 08, 2014

Ramped up enforcement along Texas border failed to raise drug prices

To understand the failure of the drug war in Texas, one need look no further than the opening few minutes of DPS Col. Steve McCraw's testimony yesterday to the Texas Senate Committee on Agriculture, Rural Affairs and Homeland Security.

According to McCraw, in the last three months local, state and federal law enforcement agencies have seized more than 350,000 pounds of marijuana in Texas' border region, as well as more than 1,000 pounds of methamphetamine, more than 125 pounds of heroin and more than 1,800 pounds of cocaine.

The logic behind drug interdiction is to remove illegal drugs from the market, making them more scarce. If successful, the tactic should increase the price of drugs. But the opposite is occurring. According to McCraw, in 2009 - which was the year DPS's souped up border security efforts began - the cost of marijuana was $551 per pound; today, it's $452 per pound. Cocaine was $29,000 per pound, he said; today it's $11,000 per pound. Meth was $37,988 per pound in 2009, said McCraw; now it's $14,866. Heroin was $40,000 per pound in 2009; now it's $21,534.

Think about what that means: According to basic principles of supply and demand, reducing supply should increase prices. But that's not what's happening. Despite Texas and federal agencies spending hundreds of millions of dollars to combat smuggling along the Texas-Mexico border, drug prices are getting cheaper, implying that supplies are expanding, not contracting.

Supply-side interdiction is not working, even for marijuana, which accounts for the overwhelming majority of drugs being captured by law enforcement.

Lauding the merits of a 21-day "surge," which was highly controversial in the Rio Grande Valley, McCraw, said the best solution is to "saturate high-visibility patrols where there are clusters of crime" between the checkpoints. He claimed the strategy resulted in radical reductions of smuggling during that period, insisting there's "no question it can be done."

To me, though, his testimony raises serious questions whether it can be done. For starters, most smuggling happens through the checkpoints, not in between them, as Sen. Juan Hinojosa pointed out. And just like when you squeeze a balloon, cracking down in one spot only causes smugglers to shift to other areas. Even if drug smuggling reduced significantly during that 21-day period in the area DPS "surged" - and for my part I find that claim suspect - there's no evidence the tactic reduced overall drug supplies. Indeed, it's clear that, over time, increased spending on law enforcement at the border has failed to reduce drug supplies, judging from the reduced drug prices McCraw cited.

Make us proud, Frisco

A couple of screwed up stories about the Frisco PD:

Monday, April 07, 2014

Report: Systemic problems with Houston crime lab employee

This MyFoxHouston item (April 1) by Isiah Carey alleging problems at the Houston crime lab is too vague to be probative, but it provides provocative hints:
new internal investigation underwayat HPD's Crime Lab.  It all came to light after an employee we're not identifying abruptly resigned in mid-March.

That investigation examines whether the employee - a criminalist for two years - did not follow procedures.  Our sources tell us it's how the former worker handled evidence in criminal cases assigned to the division. ...
FOX 26 Legal Analyst Chris Tritico says he believes the crime lab worker's actions have the potential to harm cases that are currently in the hands of the D.A.'s office.

Tritico says, "they have to notify defense attorneys and every defendant that's been affected by this person's work."

A spokesperson for HPD confirms the internal probe but declined to go into any detail about how many cases if any could be affected by the former crime lab employee.
We've obtained an internal memo written by HPD's Crime Lab Director IrmaRios.
It's the notification of the former employee's resignation from the crime lab. In that memo Rios says quote - I would not recommend the worker be rehired.
Impossible to tell from that tidbit what the problems might be, but stay tuned.

Whether issues with this employee rise to the level of the Jonathan Salvador fiasco remains to be seen, but this issue of how to respond to systemic forensic errors promises to be a recurring theme for 21st century criminal justice.

MORE: From attorney Paul Kennedy at The Defense Rests, who speculates that the former crime lab employee under investigation may be Michael Manes, former manager of the Toxicology section who "has left the building and is now working in Montgomery County with the Sheriff's Office or as a forensic-analyst-for-hire depending on who you talk to." Kennedy's suspicions were heightened because "a current case of mine has a lab report [in which] Mr. Manes performed the technical review (looking at the paperwork) last summer but was suddenly re-reviewed by a new supervisor in mid-March with no apparent explanation." A commenter supplied a link to Manes' LinkedIn page, which hasn't been updated to denote his departure from the Houston crime lab. He previously worked for the Brazoria County Sheriff then for a lab in the Woodlands operated by Sam Houston State University before joining then leaving HPD.

Attorney General: State fire marshal may continue arson review

The Texas Attorney General ruled on Friday that the state fire marshal has authority to review old arson cases, rebuffing West Texas DA Rod Ponton who'd hoped the AG would intervene to stop its consideration of bad science in the Sonia Cacy arson case, in which the court this week will consider a habeas corpus writ based on actual innocence and junk science claims. The Austin Statesman's Chuck Lindell reported today:
The State Fire Marshal’s Office may continue reviewing old arson cases for bad science, Attorney General Greg Abbott said in a formal opinion released Monday.

Nothing in state law limits the office from testing old convictions to determine if the arson cases were based on science or scientific techniques now known to be flawed, false or misleading, the opinion said.

The opinion was in response to a West Texas prosecutor who was upset after the review raised questions about a 1993 murder conviction.

Rod Ponton, district attorney of a four-county area that includes Fort Stockton, believed the fire marshal overstepped his authority by examining — and discrediting — evidence used by his office to convict Sonia Cacy of dousing her uncle with gasoline and setting him alight.

In a letter dated Oct. 1, Ponton asked Abbott to determine that the fire marshal has “no authority to make sweeping legal pronouncements on 20-year-old criminal cases.”

Abbott’s opinion, however, stated that state law gives the fire marshal broad authority to investigate cases of arson and suspected arson.
In the Cacy case, reported Lindell:
According to the [state fire marshal's] experts:
  • Today’s science doesn’t support a finding of arson. Instead, the cause of the Cacy fire should have been listed as undetermined.
  • The most damning evidence — a forensic test that found gasoline on her uncle’s clothes — was based on misinterpreted results.
  • With no smoke inhalation or heat damage to [alleged victim Bill] Richardson’s throat and lungs, there is no evidence he was alive at the time of the fire.
Instead, it appears that Richardson, a 76-year-old who smoked up to three packs of cigarettes a day, died of a heart attack while smoking in bed, Cacy’s lawyers argue, adding that numerous burn marks on the furniture show that Richardson was a careless smoker.

Other experts reached similar conclusions in 1998, prompting the Texas Board of Pardons and Paroles to order Cacy released from prison after serving less than six years of her 99-year sentence. Cacy’s murder conviction, however, was unaffected, and she remains on parole.

Defense lawyers have filed an appeal to overturn the murder conviction.
Meanwhile, my colleagues Nick Vilbas and Jeff Blackburn from the Innocence Project of Texas (IPOT) reported Friday morning at the Forensic Science Commission that the fire marshal's Science Advisory Workgroup (SAW) has identified junk science used to secure convictions in five cases so far, including Cacy's. IPOT sent questionnaires to more than a thousand prisoners in TDCJ convicted of arson, getting responses back from about a quarter of them. Prioritizing murder cases, they vetted them to identify instances where convictions relied solely on testimony from arson investigators and older, outdated techniques, forwarding nine of them so far to a committee of experts convened by the fire marshal. Of those, five of them relied on bad science, in two of them science supported the original conclusion, and two cases had inconclusive results.

The review was not comprehensive. Most prisoners did not return questionnaires and many people convicted were sentenced to probation or had already been paroled. But so far, about two percent of older arson cases examined involve people who claimed innocence and were convicted based on what's now considered junk science - less than one might have expected going in. (The Todd Willingham case, having already been vetted by numerous experts including an extensive report [pdf] from the Forensic Science Commission, was not among the nine reviewed by the fire marshal.)

Those numbers are lower than some experts predicted when the review began. In many cases, there was other evidence besides expert testimony - including confessions, video, and eyewitnesses - that supported findings of guilt. Many inmates who returned the questionnaire did not dispute that they'd started a fire. Blackburn told the commission that the relatively low number of possible innocence cases identified should inspire confidence in the process.

Going forward, now that fire marshal has vetted murder cases, IPOT will be assisting the agency reviewing non-murder cases starting in 2002 (the agency only keeps files going back 12 years). Said IPOT's Nick Vilbas, "We should be able to find some other cases needing review by the SAW panel through this process."

MORE (April 9): The Austin Statesman editorial board praised the new AG opinion and encouraged the fire marshal's arson review to continue.

See related Grits posts:

Sunday, April 06, 2014

Houston crime lab found hundreds of CODIS 'hits' in rape-kit backlog

When Houston PD began processing backlogged rape kits in reaction to SB 1636, crime lab director Irma Rios told the Texas Forensic Science Commission on Friday, they outsourced 9,723 cases to private vendors because they lacked internal capacity to handle the volume. Of those, so far they've received reports back on 8,450 cases and lab workers have reviewed 5,651 of them.

Here's the astonishing part, though: As a result of those reviews, the lab uploaded 1,662 cases to CODIS, which is the national DNA offender database, and found 607 "hits," meaning they identified a suspect whose DNA matched the rape-kit sample. That's about 36.5% of cases uploaded. And 26 of those may be serial rapists - i.e., they got multiple hits for a single offender.

So Houston PD had rape kit evidence in their possession that could have solved these crimes but the evidence had never been tested!

To her credit, that's exactly what state senator and now-gubernatorial candidate Wendy Davis predicted when she sponsored SB 1636. She'd wanted to require backlog testing but couldn't secure funding and so the watered down version that finally passed required testing only if funding is available to do so. That legislation spurred Houston to confront its backlog, but other agencies have pled poverty and still haven't tackled the problem. (UPDATE: The Texas Lege last year earmarked $11 million in the DPS budget for testing old rape kits.)

Many of these were older cases dating back to the 1980s, so for some of them the statute of limitations has run out and the cases can't be prosecuted. But prosecutors can use the evidence to help enhance (read: boost penalties) for future crimes and also to oppose parole for those locked up in Texas prisons for other offenses, which includes a significant number of those identified. Rios didn't detail the criteria by which they chose to update results to CODIS, so we can't know whether there may even be more cases from the backlog where it's possible to identify perpetrators or potentially exonerate people who were wrongfully convicted.

The Houston crime lab recently was moved out from under the police department's management structure and into an independent local government corporation with its own board.  They're currently one of two cities (Detroit is the other) with a National Institute of Justice grant to study how to prioritize testing rape kit backlogs. (See prior Grits coverage and a website devoted to the grant project.)

Rios estimated that there are about 400,000 untested rape kits sitting around in police department evidence rooms nationwide.

Thursday, April 03, 2014

Advocates preview 2015 Lege agendas

On Friday at 1:30 p.m., the Texas Criminal Justice Coalition and the Texas Public Policy Foundation will give presentations at a criminal-justice forum sponsored by the Legislative Budget Board discussing the group's agendas for the coming legislative session. See details here. Your correspondent can't make it as I'll be at a Forensic Science Commission meeting and then, in the afternoon, tutoring 4th and 5th graders at a Math Pentathlon practice session. But I'll see if the presenters will let me post any handouts from the event and if so, add them to this post.

MORE: See TCJC's power point presentation (ppt), a handout detailing their Lege agenda, and a timeline of recent criminal justice reforms. AND MORE: Here's the TPPF presentation. Thanks to Ana Correa and Marc Levin for sharing them.

'Major use of force' up at TDCJ prisons

The Texas Tribune's new criminal-justice beat reporter Terri Langford has an item today titled "Force against Texas inmates on the rise." Here's a notable excerpt:
Despite a decrease in the prison population from 2005 to 2013, the number of “major use of force" incidents grew some 17 percent, according to statistics kept by the Texas Department of Criminal Justice.

While TDCJ officials say the fluctuations are random and can’t be tied to any one factor, other experts say the increase in reported use of force is a symptom of an inexperienced officer corps and an often overheated environment.

The number of “major use of force" incidents rose to 7,151 in 2013 from 6,071 incidents in 2005, according to TDCJ statistics. Jason Clark, a TDCJ spokesman said there was a change in the way the incidents were reported in 2012, which could account for some of the increased incident reporting. But he could not say how much that would have changed the numbers.

Lance Lowry, president of the Texas correctional employees union, said that most of the time force is used in confrontational situations where inmates refuse to cooperate with orders.

With many veteran correctional officers retiring, the state prison system is relying more on rookie staff members, including some who may lack the skills to “de-escalate” a confrontation before deciding to use some sort of force, Lowry said.
The UT LBJ School's Michele Deitch expressed concern over the use of chemical agents like pepper spray on inmates “where they won’t comply with an order,” but “There’s no particular indication that there’s an immediate danger of any kind.”

As a followup, it'd be interesting to know how many of those use-of-force and pepper spray incidents involved mentally ill inmates, an issue that arose in California prisons last fall. The Trib's Brandi Grissom reported last fall that use-of-force rates were highest at TDCJ's psychiatric facilities and units housing large numbers of mentally ill inmates. One also wonders how many disciplinary actions against employees resulted from these thousands of force incidents, or if TDCJ considered them all justified.

Wednesday, April 02, 2014

Lege committee to review 'Driver Responsibility' surcharge options

The Texas House Homeland Security and Public Safety Committee will meet April 14 to hear invited and public testimony to "Review the Driver Responsibility Program and consider methods for overall improvement of the program," as well as to hear testimony regarding the aftermath of the fertilizer plant explosion in West, TX a year ago.

At a minimum, the Lege would be wise to require the Department of Public Safety to implement another "amnesty" period for the Driver Responsibility surcharge. Their first one was barely publicized and they seem disinclined to sponsor another one, even though they have the authority. Nearly 100,000 drivers were able to regain their licenses thanks to the lat Amnesty program in 2011, but because it was poorly publicized, only 14% of those eligible applied.

DPS offered quite a few additional suggestions for reforming the program at a hearing last year. But for my money, at this point the best way to "improve" the misnamed Driver Responsibility Program would be to abolish it.

See prior, related Grits posts: