Wednesday, October 22, 2014

The case for punishing prosecutor misconduct

At Texas Monthly, Pam Colloff yesterday made "the case for punishing prosecutors who abuse their power," focusing on the Hannah Overton, Michael Morton and Anthony Graves cases. She also highlighted a case that's gotten less attention:
Take the case of Alfred DeWayne Brown, currently on death row. In 2005 Brown was convicted of killing a Houston police officer in a bungled robbery that also left a store clerk dead. Brown always stuck by his alibi: on the morning of the crime, he said, he never left his girlfriend’s apartment. He claimed to have called his girlfriend at her workplace at around ten—the same time prosecutors said he was at another location, with two co-defendants, having just committed the double homicide. At the time of his trial, prosecutors did not turn over any phone records. Not until 2013 did it come to light that those records did, in fact, exist and that a prosecutor had asked to review them. The records, which were found in an investigator’s garage, show that a call had been placed from Brown’s girlfriend’s residence to her workplace at 10:08 a.m. on the morning of the crime. The Harris County DA’s office, which claimed that its failure to disclose the phone records had been inadvertent, readily agreed in May 2013 that Brown should seek a new trial. Although more than a year has passed, the CCA has still not issued an opinion in the case, and until it does, Brown will remain on death row.
Colloff suggested the State Bar of Texas must "radically reform the way it handles allegations of prosecutorial misconduct; right now, the bar’s guiding principle seems to be to ignore even the most egregious examples of bad behavior by prosecutors unless there is enough attendant media attention that some sort of action must be taken—and even then, it’s usually a slap on the wrist."

She also recommended that, "the Legislature should examine the issue of absolute immunity for prosecutors. There are good reasons why DAs need to have some degree of protection; if they could be sued for any decision they made, they could not perform their jobs. But because they are shielded from any civil liability, they have no motivation to play by the rules, especially when the only other check on their behavior is a toothless state bar."

Tuesday, October 21, 2014

Poll: Harris DA's race in a 'dead heat'

A new poll from KHOU-TV in Houston shows the Harris County DA's race is a "dead heat" between incumbent and Rick Perry-appointee Devon Anderson and Democratic challenger Kim Ogg, with an enormous swath of the electorate undecided (46%).

That doesn't surprise me. The incumbent replaced her husband who'd already been diagnosed with terminal cancer before he took office, so the public barely knew him, nor her, despite her having been on the ballot before as a judge (a very different sort of election). That means both candidates remain relatively unknown to the voters, who will judge mainly based on party label. Indeed, many undecideds in that poll may never decide at all but will merely vote a straight ticket, R or D, perhaps not even knowing the DA candidates' names.

So the main tasks for both candidates are to drive turnout among the base and wooing the vanishing number of independents and ticket splitters out there who pay attention to candidates beyond their party labels. Those twin goals explain every one of the candidates' positions, which have been refreshingly populist and reform-minded on both sides. This is an example why I prefer it when candidates must run in competitive general elections. It enforces pragmatism and interest-based centrism that's notably absent in both parties' primaries and leaves the victors more prepared to govern.

MORE: See a decent backgrounder on the two candidates.

Monday, October 20, 2014

Backlash brewing against video-only jail visitation

In Austin, activists are pushing for the Sheriff to allow face-to-face visitation for county jail inmates, a practice ended as part of a new contract with Dallas-based Securus Technologies which provides for video-based visitation only. (See prior Grits coverage.) As a backdrop, the Texas Observer's Forrest Wilder reported recently (Oct. 16) on controversies surrounding Securus and video-only jail visitation. That article concluded:
In Dallas, activists and some local leaders, especially County Judge Clay Jenkins, helped kill a contract with Securus that included a provision stipulating that the jail had to eliminate all in-person visits. “It is very important that we do not profit on the backs of inmates in the jail,” Dallas County Commissioner Elba Garcia said in The Dallas Morning News.

The Bastrop County Jail is set to eliminate all face-to-face visitation in early November. Instead, visitors can use a free video terminal at the jail or pay $1 per minute to use the remote video system.

The contract, reviewed by the Observer, cuts the county in for 20 percent of Securus’ revenues. It doesn’t require, like the Dallas contract, that in-person visitation be eliminated, but it stipulates that for the first two years the county only gets paid if it produces 534 paid visits per month.

In Austin, the Travis County Commissioners Court voted in October 2012 to add video visitation as an ancillary service—something prisoners’ rights advocates are fine with as long as the rates are reasonable and the service is reliable. But in May 2013, Travis County Sheriff Greg Hamilton quietly eliminated in-person visitation. Defense attorneys and inmates sued in April, claiming that the jail and Securus were unlawfully recording privileged conversations between inmates and attorneys and leaking them to prosecutors. On top of that, [Grassroots Leadership's Kymberlie] Quong Charles says the lack of human interaction is worsening conditions.

“What we found is that everything they said would happen in terms of improving conditions has actually gotten worse,” she said. “I think people are frustrated, they’re not getting to see anybody.”
A report released this morning by Grassroots Leadership and the Texas Criminal Justice Coalition found that disciplinary infractions, assaults and contraband cases all increased within the year after the video-only policy was put in place. The report concedes that the trends may be an aberration or temporary but cites social science and long-standing prison policies holding that visitations improves jail security and lowers recidivism rates. One study of 16,420 offenders commissioned by the Minnesota Department of Corrections, for example, found that “prison visitation can significantly improve the transition offenders make from the institution to the community.” Even one visit lowered the risk that a person would re-offend by 13 percent.

“Video-only visitation policies ignore best practices that call for face-to-face visits to foster family relationships,” the report argues. “They advance arguments about security that are dubious, not rooted in research, and may be counter-productive.”

Grassroots Leadership and the Texas Criminal Justice Coalition report found 10 counties in Texas that have already deployed video-only systems, with more considering the option.

Are MEs fudging cause of death for Texas prisoners?

If one person per day is dying in custody of state and local law enforcement in Texas, the next obvious question is, "What do those cases look like?"

Nicole Brambila at the Lubbock Avalanche-Journal over the weekend (Oct. 18) offered up a portrait of local death in custody cases, basing the story on the list compiled at the Attorney General referenced in this recent Grits post. Well done. This same type story can and should be localized by media in other jurisdictions around the state.

The most dramatic element in the article was the saga of Benjamin McCoin, whose death at the Montford psychiatric unit occurred due to injuries sustained while being restrained by guards. The Tarrant medical examiner called the death an accident; the Lubbock medical examiner labeled it a "homicide." TDCJ spokesflak Jason Clark understatedly told the paper, “It’s certainly a unique situation where you have differing causes of death between two medical examiners.” Indeed, isn't it?

Lubbock County Medical Examiner Sridhar Natarajan has reviewed four death cases from Montford in the past year. "In two of the cases the state said were natural deaths — including McCoin’s — Natarajan has changed the cause, out of concern," reported Brambila. Here are more details on the other case:
The second involved 27-year-old Marsele Dauntri Thompson, who in January was found unresponsive in his cell. Tasha Z. Greenberg, M.D., in Tarrant County reported finding “no evidence of trauma or foul play.”

And yet, the autopsy records evidence of a contusion on Thompson’s forehead in the process of healing, as well as abrasions around his eyes and and additional contusions on his arm and thigh.
Correctional officers were supposed to be conducting 15-minute checks on Thompson, a schizophrenic on water restriction for his personal safety. However, when officers discovered

Thompson sitting nude in his cell with his legs crossed, his body was cold.

Generally, a body is stiff and warm at two hours. It’s stiff and cool between four and six hours.

“When the body was found it was cold, in rigor,” Nataranjan said. “That’s not going to happen within a 15-minute check. It doesn’t match with 15-minute checks.”

Natarajan reported the death undetermined.

“If I’m not able to explain it, I’m not going to give a cause of death,” Nataranjan said.

The Texas Office of Inspector General is also investigating Thompson’s death, Clark said.
Excellent reporting. Nice to see local journalists following up on those death-in-custody reports. There's no way such stories get reported unless somebody's doing the grunt-work to follow up on the details of individual cases in the AG report.

These sorts of regional and local stories are low hanging fruit for reporters elsewhere, it should be emphasized. That AG death-in-custody list represents a huge cache of under-utilized story leads that typically aren't followed by local reporters because they require work and the government hasn't handed them the story on a platter. This article shows what's possible with just a little elbow grease. You never know what you'll find until you look. One hopes others follow suit.

Backstory on Pam Freeman indictment, ouster of parole board member who tried to hold her accountable

Parole attorney Kevin Stouwie offered up a detailed explication of "The Pamela Freeman debacle as I understand it" from the perspective of the person whose complaint sparked the investigation that led to her indictment earlier this month. (I'd have seen this sooner if I read Grits comments more faithfully; it's a little more than a week old.) The item is particularly notable as the only new detail we've received on the topic since the single round of MSM attention Oct. 3.

Stouwie had this to say about recent parole board appointee Roman Chavez's recent ouster, which has yet to be covered in the MSM:
There is presently a vacancy in one Board Member slot; the slot recently vacated by the Board Member in Huntsville, Roman Chavez.  Board Member Chavez  was constructively discharged (my interpretation) by Board Chair Rissie Owens the day before the indictment of Pamela Freeman.  The official version is that Ms. Owens merely made a decision to transfer Mr. Chavez to the Austin Board Office.  Another way to view the situation is that Ms. Owens knew Mr. Chavez would not uproot his family and move to Austin.  Although this management decision by Ms. Owens is certainly worth further scrutiny, it must be clarified that Mr. Chavez is NOT, and has never been suspected of doing the things for which Ms. Freeman is indicted, and neither is Ms. Owens for that matter.

In fact, Mr. Chavez seems to have done whatever he could to try to hold Ms. Freeman accountable once he concluded that Ms. Freeman had engaged in unethical and illegal acts while she was supposed to be carrying out her job responsibilities on April 30.
According to Stouwie, Chavez was one of the people to whom Freeman allegedly lied about five inmates' reasons for missing their 20-year parole interviews and in fact reported Freeman's alleged misconduct himself. After Stouwie brought his allegations to Sen. John Whitmire and the Office of Inspector General, he wrote, "I also later learned that Mr. Chavez had, at some point, brought the Freeman debacle to the attention of OIG officials.  I do not know when, or how Mr. Chavez classified the Pamela Freeman actions of April 30, but I assume he will be one of the witnesses called by the attorneys at trial, in the event she is crazy enough to take her case to trial."

Following a detailed account of the episode that spawned Freeman's indictment, Stouwie concluded with this tidbit: "It’s my understanding that Ms. Freeman was finally suspended after she was indicted. However, she is still collecting a paycheck.  Lord only knows how that is possible, especially given a pile of other complaints that were made by many different people in recent years. One thing that deeply troubles me is that Ms. Freeman may have falsely claimed that other inmates refused to be interviewed on other occasions."

Go read the whole thing. Stouwie's post substantially fills out the picture compared to the indictment and initial MSM coverage, after which this story inexplicably seems to have fallen off the map.

Saturday, October 18, 2014

Why Houston won't get the private prison museum it deserves

Okay, they almost got me. I couldn't tell for sure just from reading it if this Free Press Houston story was satire. Editors confirmed that it is. Lucky I checked before writing something, a reliable reader sent it to Grits thinking it was legit.

The last few paragraphs seemed too out there to be true, but somehow the world seemed just possibly weird enough to contemplate the viability of the story of a plain speaking, fascist School-of-the-Americas reject deported from America's first private prison facility in Houston in the 1980s who becomes inspired by Corrections Corporation of America, launches a chain of private detention facilities serving death squads and torturers in El Salvador, then returns to America to buy the converted motel where he was earlier imprisoned and turn it into a private prison museum that lionizes T. Don Hutto.

What makes it fine satire is that it could be true: The world is just nuts enough to allow for it. Alas, not this time. Good stuff, though. Read it.

Waste in the justice system? Say it ain't so!

Do you have stories of government waste?

Texas Public Policy Action, a 501c(4), is collecting stories of government waste through next Friday Oct. 24, with the top suggestion receiving $4,000. All suggestions will be compiled into an anthologized publication on waste that will be delivered to legislators offices next session. See Big Jolly's blog for more detail.

Offhand, at the municipal level I think of wasteful spending on police officers covering false residential burglar alarms, which account for 10-12 percent of patrol calls in most Texas departments.

At the state level, offhand, there's over-incarceration of nonviolent drug and property offenders and elderly offenders from decades ago who can't make parole and cost the state a small fortune in medical bills. (The advent of life without parole will exacerbate that trend in the future, though for the most part people who committed violent offenses aren't getting paroled now.)

The Driver Responsibility surcharge generates revenue for hospitals but at the expense of county courts, jails, local police, and especially drivers who must pay the externalities from this ill-conceived project.

Use the comment section to suggest areas of waste in the criminal justice system, and see the full contest rules if you're interested in entering.

Friday, October 17, 2014

Dallas News urges Dems to split tickets in DA's race

Ouch! The Dallas Morning News endorsed Republican Susan Hawk for District Attorney over incumbent Craig Watkins in an editorial which concluded:
Watkins, 46, relied even more on straight-ticket Democratic votes in his narrow 2010 re-election win. After that, ironically, he went after Democratic judges as part of his with-him-or-against-him courthouse mentality. More than one judge has accused him of abusing his authority by threatening to drag them to grand juries over decisions he did not like. Another judge found him in contempt for refusing to honor a subpoena to testify; Lena Levario would be among the judges targeted by Watkins-endorsed candidates.

Dubious ethics only worsened in his second term, evidenced by his fast-and-loose treatment of forfeiture funds supposedly reserved for law enforcement purposes. Instead, Watkins chose to spend $50,000 to settle his own car crash and another $1,250 to sweep his offices for listening devices.

The car crash settlement included a $40,500 penalty paid to Watkins himself if the other driver spoke publicly about the incident.

Watkins deserves credit for many of his “smart on crime” strategies. But that was then. Now, voters should hire his successor in Hawk, even if they have to split straight tickets to do so.
If Watkins' campaign had raised more money he could respond on TV before early voting begins next week to counter the impact of this endorsement and Hawk's TV ad promising to restore voters' "trust" in the office. Instead, he must continue bleeding through the weekend and hope that Wendy Davis' campaign can generate extra Democratic turnout where he cannot. Watkins' re-election in 2010 was decided on turnout and straight ticket voting. If Susan Hawk and the Dallas Morning News convince 10,000 Democrats county-wide to split tickets in the DA's race ... well, let's just say Watkins campaign team should be in a private panic right about now. He's still probably the betting favorite given recent Dallas County electoral trends. But Watkins faces greater danger than in 2010, and there's a lot less he can do about it in the final month compared to four years ago.

Watkins' position is further weakened because of his strategy of using his prosecutors to primary Democratic judges he didn't like, a method that was in several cases successful and left factions of the party particularly upset with him. He also ran his first assistant in a failed bid for Dallas County Democratic Party Chair, which forced Democratic leaders county-wide to already choose to oppose him once this year. If just a few of them still feel bitter and defect in the secrecy of the voting booth, a close watcher of the Dallas vote count wouldn't be surprised at an upset.

Having performed opposition research in dozens of political campaigns, at this point I've broken out the popcorn and am watching the three big DA's races - Dallas, Harris, Bexar - mainly for the entertainment value. There's nothing I can do about them in these closing weeks and the voters' whimsy does not respond to reasoned argument. Watkins has done a lot of things I liked, even admired, but he's also brought virtually all of his present problems on himself. His fate is up to Dallas voters, now ... God help us all.

RELATED: Mike Hashimoto at the Dallas News liked this blog post, writing an appreciation on the DMN Opinion Blog. TANGENTIALLY RELATED: See the Texas Tribune's coverage of the Bexar DA's race, made more competitive by a single donor dumping nearly $700K into the coffers of the Democratic challenger.

Thursday, October 16, 2014

Tulia-sting litigator nominated to run DOJ Civil Rights Division

Wow, do I have mixed feelings about the Obama Administration nominating Vanita Gupta to head DOJ's Civil Rights division! I first met Vanita when she and Jeff Blackburn litigated the wrongful conviction cases arising out of the infamous Tulia drug sting and there aren't many lawyers I hold in higher esteem. So it's not that I question the quality of the pick.

More, it's that Vanita has done such a good job at national ACLU's Campaign to End Mass Incarceration that I hate to see a successful advocate's work neutered by DOJ bureaucracy, particularly given the uncertainty surrounding Eric Holder's departure and the fact that his successor will serve at most two years. Her work at ACLU bridged liberal-conservative divides, as evidenced by Grover Norquist and Marc Levin's quotes in Time magazine endorsing her nomination. And Grits lacks confidence that whomever is appointed from the farm team at ACLU will share her wisdom regarding the pitfalls of ideological rigidity and partisanship.

On the flip side, Gupta's selection indicates an appreciation by the Administration of the link between civil rights and the justice system that isn't always obvious from the DOJ's day-to-day stances and court pleadings. Perhaps, if the fates are on her side, she'll be given enough leash at DOJ to actually accomplish something in what, for litigators, is really a short span of time. And who knows? I suppose if Hillary is elected in 2016 she might be invited to keep the gig.

Certainly I wish Vanita luck and endorse her unequivocally as far as her qualifications for the job, even if part of me wishes the Senate would shoot her nomination down just so she can continue her current good work.

Wednesday, October 15, 2014

New crime lab director at DPS

Pat Johnson has retired from his post managing the Texas Department of Public Safety's network of crime labs after 42 years of service, it was announced at a Forensic Science Commission meeting earlier this month. He has been replaced by Brady Mills, an internal hire, who was named the new Deputy Assistant Director at DPS in charge of the agency's crime labs.

I don't believe I've ever met anybody who had an unkind word to say about Pat. Even when his crime labs screwed up, and no doubt it happened on his watch, he handled it in forthright and confidence-building ways, disclosing problems and letting the chips fall where they may. In my experience, he was unafraid to face tough questions head on, despite a soft-spoken demeanor that masked the burdens of an extraordinarily difficult job.

He'll be missed; we could use more like him. Enjoy your retirement, Pat.

Brady Mills, an acolyte of Johnson's, seems like a good choice to replace him. In my limited dealings with him he seemed professional and highly competent, and he'll need to be. He takes over the crime labs at a time when they're still managing the aftermath of the Jonathan Salvador fiasco and struggling with long delays on core functions due to backlogs, massive caseload growth, and underfunding from the Legislature.

Perhaps Brady's most difficult task in the near term will be to articulate the agency's budget needs in the wake of these building pressures. The Lege has expanded crime lab budgets and physical plants significantly in recent years, but not fast enough to keep up with elevated caseload growth. DPS crime labs have already begun de-prioritizing certain types of cases to reduce the volume. IMO, something's got to give soon.

That's not a knock on management, at least at Johnson and Mills' level. It's a function of a bloated criminal justice system and a political process that enjoys touting its tuff-on-crime positions right up until the moment the bill comes due. Crime lab work isn't sexy but the system would grind to a halt without it.

Good luck, Brady. You'll need it.

Youth especially vulnerable during police interrogation

Adolescents are a "psychologically vulnerable" population when it comes to police interrogation tactics, says a study highlighted in this New York Times piece (Oct. 13), because they're easier to manipulate and don't assert their rights. The article opened:
Even when police interrogators left the room, cameras kept recording the teenage suspects. Some paced. Several curled up and slept. One sobbed loudly, hitting his head against the wall, berating himself. Two boys, left alone together, discussed their offense, joking.

What none did, however, was exercise his constitutional rights. It was not clear whether the youths even understood them.

Therefore none had a lawyer at his side. None left, though all were free to do so, and none remained silent. Some 37 percent made full confessions, and 31 percent made incriminating statements.

These were among the observations in a recent study of 57 videotaped interrogations of teenagers, ages 13 to 17, from 17 police departments around the country. The research, published in Law and Human Behavior, adds to accumulating evidence that teenagers are psychologically vulnerable at the gateway to the criminal justice system. Youths, some researchers say, merit special protections.

According to federal statistics, nearly 1.5 million teenagers were arrested in 2011, the last year for which data was collected.
The article concluded mentioning a couple of other recent developments on false confessions of which I wasn't aware:
Citing recent research, the American Psychological Association has called for widespread protections for suspects, including teenagers, during interrogations. The recommendations include limiting the length of interviews; videotaping them in their entirety; assuring that teenagers are always accompanied by a lawyer; and that interviewers be trained to reduce the risk of eliciting false confessions from impressionable suspects such as youths.

This spring, the International Association of Chiefs of Police, a law enforcement coalition, along with the federal Office of Juvenile Justice and Delinquency Prevention, developed online training for those who interview adolescents. Drawing from developmental research, the program instructs officers to explain Miranda warnings in language teenagers will understand and not to make false promises of leniency, because of youths’ proclivity toward gullibility.

“We want to avoid involuntary or false confessions from juveniles,” said John Firman, director of research for the association. “The ultimate goal is to get accurate information from them. And if you don’t understand juvenile brain development, the likelihood is that you’ll get bad information.”

Roundup: Of drones, drugs, and DA elections

Here are several items that merit Grits readers attention but haven't made it into individual posts:

Craig Watkins' fumbling Dallas DA campaign
Grits mentioned earlier that the Dallas, Harris and Bexar County DA's races interested me as potentially close, competitive toss-up races, in Bexar because a single donor dropped $600K on the Democratic challenger. In Dallas, where I'd already thought the race would be close, Gromer Jeffers at the Dallas News reported that challenger Susan Hawk has out-fundraised Craig Watkins roughly 5-1 and is running TV ads, which are "a rarity for a countywide race, and will be following up with direct mail and other contacts to nudge voters to go to the polls. She’s actively trying to peel Democratic voters away from the incumbent." Meanwhile, Watkins team "lacks a professional campaign manager and field director, perhaps because there is no money to pay them." In 2010, Watkins raised $750K and won by about 5,000 votes. He appears more vulnerable now and I wouldn't be surprised to see Hawk upset the favored incumbent.

Corrupt cop escorted drug loads in Houston
A former Houston police officer, Marcos Carrion, pled guilty to escorting drug shipments through town on behalf of a drug cartel, the Houston Chronicle reported. See an FBI press release and the plea agreement.

Montgomery Sheriff will drone again
The Montgomery County Sheriff's Office will replace the quarter-million dollar drone they sank in Lake Conroe with insurance money. This was the second time they'd crashed the thing in as many years.

Listen to Texas Tribune crimjust panels
I'd neglected to link to the Texas Tribune's online postings of two criminal justice related panels at their recent festival on criminal justice reform and the death penalty (because we don't talk about that enough!). Go here to listen.

5th Circuit Judge: Innocents executed analogous to collateral damage from drone strikes
A complaint against 5th Circuit Court of Appeals Judge Edith Jones for alleged has been dismissed by her fellow 5th D.C. Circuit jurists, which doesn't seem like the most impartial group to evaluate the challenge to one of their peers. Reported the Houston Chronicle:
the dismissal order released this week says Jones herself admitted to describing mental disability as a "red herring" in death penalty appeals, though it is a defense approved by the U.S. Supreme Court.

She admitted she used an analogy to drone strikes in rebuttal to the argument "that the death penalty kills innocents."

She agreed she'd said something about how Mexican nationals might prefer American death row to prison in their own country, even though Mexico does not have capital punishment, and that she said both blacks and Hispanics sadly "seem to commit more heinous crimes."

But none of those comments were considered misconduct by the investigating judges.
Private foundations fund police surveillance tech
Police departments are looking to private foundations to pay for Stingray surveillance devices and other equipment they don't want to have to justify through the formal budgeting process, reported ProPublica

Tuesday, October 14, 2014

Suit over reality TV filming warrantless SWAT raid will go forward

A federal judge has concluded that portions of a lawsuit may go forward over allowing reality TV cameras to film a botched 2011 SWAT raid in Montgomery County. The video was released as part of the reality show "Texas Takedown."

The officers allegedly fudged the search warrant affidavit: "After searching the residence and allegedly finding marijuana plants, the officers wrote a misleading affidavit to get a search warrant, which arrived about 12:30 a.m. the next morning." The suit alleges that DA Brett Ligon and his first assistant advised officers by phone to enter the home without a warrant. If true, maybe that needs to be the subject of a state bar grievance.

ISIS in Texas and the 'global war on jackalopes'

On BurkaBlog (Oct. 9), Eric Greider at Texas Monthly showed that claims of ISIS terrorists entering Texas through the Mexican border are falsehoods, suggesting the next logical step for those blustering over terrorists crossing the border should be to launch a "global war on jackalopes," which pose a similar level of threat. She concluded:
there's no plausible reason to think that this is one of those cases where the lack of evidence suggests conspiracy or suppression, rather than an actual lack of evidence of ISIS fighters trying to cross the border. In certain circles, both of the preceding points--the lack of evidence and the lack of logic--are being dismissed by some fearmongers on the basis that it's better to be safe than sorry. They may be correct about that principle, and if so, we should all be concerned. If Texans focus undue energy on being infiltrated by ISIS, that necessarily limits the resources we can direct to fighting other threats--some of which, unlike this one, are actually serious issues on the border; some of which, unlike this one, are real.
See related, past Grits coverage.

MORE: The lies just keep on coming.

New Travis 'private defender' will lower bottom line of oft-appointed lawyers

Texas Lawyer has a report on Travis County's new indigent defense system (Oct. 9) in which attorney assignments have been outsourced to a nonprofit organization operated by the local criminal defense bar. The project is ramping up now:
From Oct. 10 to Oct. 24, Davis said attorneys who are now on the list to accept indigent-defense appointments must reapply to land spots—based on qualifications and experience—on the private defender service's lists. For example, there will be lists for felonies, misdemeanors, appeals, mental health cases and Spanish-speaking cases.

"As an indigent defendant comes into the system by arrest we have a wheel or rotational system to select attorneys," [executive director Ira] Davis said. "It's a random process, but it's a random process among qualified attorneys."
Some local attorneys, though - the ones receiving the lion's share of appointments under the old system, are displeased that the new approach will reduce their incomes:
"The next year or so is going to be very difficult because there are going to be some growing pains. There are some lawyers who have been receiving court appointments in a disproportionate share who are going to be hurt by this financially, so there is a significant amount of pushback from the lawyers who see their bottom line being harmed by this system," said Judge David Wahlberg of the 167th Criminal District Court in Austin.

Defense lawyers who take indigent-defense appointments contacted by Texas Lawyer declined to comment on the change.

Wahlberg said the service would eventually provide a "tremendous benefit" to the criminal-justice system by giving defendants better representation and making them more confident in their court-appointed lawyers. He explained that when a client sees a judge handling payment for his lawyer, the client might question his lawyer's independence.

"If there is not an actual influence there, there's at least a perceived influence," Wahlberg explained. "Trying to ameliorate that problem is maybe the biggest benefit of this."
See prior Grits coverage.

Jails can (and should) opt out of federal Secure Communities program

Travis County Sheriff Greg Hamilton has insisted in the past that his hands are tied when it comes to participation in the federal Secure Communities program, which requires jails to place immigration holds on arrestees who are otherwise eligible for release, even though most of them were charged with minor offenses, including traffic offenses and there's scant evidence the program improved public safety.

A few years later, though, we now know that it's simply false that the Sheriff is compelled by a federal mandate to honor ICE deportation holds, as evidenced by this article from the LA Times, "More jails refuse to hold inmates for federal immigration authorities" (Oct. 4). Here's a notable excerpt rebutting the "we have no choice" meme.
Although some localities started limiting the number of immigration holds a few years ago, the trend of completely ignoring the requests gathered steam this spring after a series of federal court rulings determined that the immigration holds are not mandatory and that local agencies should not be compelled to follow them. ...

Currently, more than 225 local law enforcement agencies nationwide have adopted policies to completely ignore requests by Immigration and Customs Enforcement officials to hold an inmate for an additional 48 hours after his or her scheduled release date from jail. Another 25 agencies have limited the number of immigration requests they will honor. New York City is among those considering ways to stop or limit holds. ...

In March, the 3rd U.S. Circuit Court of Appeals in Pennsylvania ruled that states and local law enforcement agencies had no obligation to comply with immigration hold requests because the requests did not amount to the probable cause required by the Constitution to keep someone in jail. Other courts have come to similar conclusions.

On Monday, another federal judge in Chicago reaffirmed that local law enforcement agencies should not consider the ICE holds mandatory.

In New Mexico, all county jails are no longer honoring immigration holds, said Grace Philips, general counsel for the New Mexico Assn. of Counties.

Some county officials stopped the practice because they were fearful of exposing themselves to expensive litigation, Philips said. Others saw it as a way of relieving their already overburdened jails, especially because the Department of Homeland Security did not reimburse localities for housing the inmates during the extended stay.

In the neighboring border state of Arizona, only South Tucson is declining to grant holds, also known as immigration detainers. In Texas, it appears that no locality stopped honoring hold requests, said Lena Graber, an attorney who tracks the issue for the Immigrant Legal Resource Center in San Francisco.

In California, a state law implemented in January — the Trust Act — stipulates that law enforcement agencies can only honor immigration holds if the inmate who is suspected of being in the country illegally has been charged with, or convicted of, a serious offense. Also, most law enforcement agencies in the state — including the Los Angeles Police Department — adopted policies ignoring the immigration holds altogether after the federal rulings came down.
So this claim that counties' hands are tied fails to hold up to scrutiny. These are policy choices, not mandates from on high. In the current, nativist climate, perhaps they are popular choices in Texas. But Hamilton and other Sheriffs must abandon the claim that this is something the feds can force them to do. That's a fib.

That said, California's Trust Act sounds like a decent compromise on this: Limit ICE detainers to serious offenses and the controversies about un-reimbursed jail costs and mothers deported over traffic offenses go away. Few people, myself included, have a problem with ICE detaining dangerous people for deportation after they've served their sentence. My beef has always been with casting the net too widely, needlessly boosting jail costs, breaking up families and creating disincentives for witnesses and crime victims to cooperate with police.

MORE: Sheriff Hamilton stands fast despite community criticism over participation in the program.

Sunday, October 12, 2014

Feds won't combine prison heat litigation cases

The National Law Journal reported (Oct. 10) that the federal courts will not combine the numerous lawsuits challenging excessive heat in Texas prisons as cruel and unusual punishment under the Eighth Amendment. Here's a notable excerpt from the story:
A federal panel has refused to coordinate lawsuits filed on behalf of inmates in Texas state prisons who died or suffered heat strokes from soaring temperatures during the summers of 2011 and 2012.

The Texas Department of Criminal Justice and its executive director, Brad Livingston, represented by Texas Attorney General Greg Abbott, moved on July 14 to transfer seven cases for pretrial purposes to U.S. District Judge Keith Ellison in the Southern District of Texas, where a class action is pending on behalf of inmates of the Wallace Pack Unit, a geriatric prison facility near Houston. Jeffrey Edwards of Edwards Law in Austin, who represents the plaintiffs in most of the cases, supported the move.

The cases—all filed in federal courts in Texas—allege that being housed in temperatures of more than 100 degrees constituted “cruel and unusual punishment” under the Eighth Amendment. They also claim they were not accommodated under the Americans With Disabilities Act and the Rehabilitation Act. Most of the prisoners had disabilities, such as diabetes or hypertension.

The U.S. Judicial Panel on Multidistrict Litigation heard oral arguments on Oct. 2 in Louisville. On Thursday, the panel found that coordination wasn’t appropriate because the cases were at varying stages of discovery and the same plaintiffs attorney had brought most of them.

That attorney, Edwards, who has partnered with the Texas Civil Rights Project on the litigation, said he represents the families of eight inmates who have died and one who survived a heat stroke. But others have been filed by inmates themselves. “There was some concern about the effect an MDL would have on pro se inmates filing these claims,” he said of the panel’s decision.

Saturday, October 11, 2014

Of architecture and incarceration culture in Dallas

Dallas Morning News architecture critic Mark Lamster offered up a terrific essay last week (Oct. 3) lambasting "the complex of jails that are the unholy gateway to our city." He referred to the now-vacant Dawson State Jail as a "grim block that looks like some kind of dystopian Lego project." And he rightly lamented "the rambling and almost defiantly ugly Lew Sterrett Justice Center, a dispiriting agglomeration of mud-brown structures that seems designed to dehumanize all who would approach." Really good stuff. Find the essay's opening paragraphs below the jump:

Hall to Governor: Pardon Max Soffar

At Texas Monthly, Michael Hall has published an extended open letter to the governor pleading for executive clemency in the case of Max Soffar, who has "been on death row for a third of a century for a crime I'm certain he did not commit." Soffar has liver cancer and will likely perish before the courts decide his pending habeas corpus writ. Hall urged the governor to allow Soffar to die at home with his family instead of in prison.

RELATED: See an essay on Grits from Texas Southern journalism chair Michael Berryhill about Soffar's case.

Thursday, October 09, 2014

New laws aimed at reducing tickets in school worked: 83% fewer last year

New laws aimed at reducing tickets given to students for in-school misbehavior resulted in a whopping 83 percent year-to-year drop in the number of tickets written, according to data revealed at yesterday's joint hearing of  the Corrections and Public Education Committees. Here's how Chuck Lindell's coverage in the Austin Statesman (Oct. 8) opened:
Working as intended, two state laws passed in 2013 have fueled a larger-than-anticipated 83 percent decline in the number of Texas schoolchildren prosecuted in adult court for infractions such as disrupting a classroom, court figures show.

Including other misdemeanor school-based offenses, almost 90,000 juvenile cases were kept out of adult court by the new laws, which were written to encourage schools to handle most behavior problems internally instead of relying on police or the courts, two Texas House committees were told Wednesday.

“We were expecting a drop. I don’t think we were expecting that significant a drop in the first year,” said David Slayton, director of the state Office of Court Administration.

The sharp decline in the number of juvenile prosecutions, publicized for the first time at Wednesday’s joint hearing of the House Corrections and Public Education committees, offered early evidence that the laws were working to reduce the number of children saddled with criminal records for relatively minor school offenses, legislators and criminal justice advocates said.
See additional coverage from KWBU radio and written testimony presented to the committee from TCJC's Jennifer Carreon.

Shannon Edmonds on why Court of Criminal Appeals outcome in DeLay case '180 degrees' from Abbott's Supreme Court interpretation

The Texas Public Policy Foundation's Marc Levin has been promoting the idea of codifying the rule of lenity, so I was interested to hear prosecutor association rep Shannon Edmonds' take on the topic, testifying Tuesday before the House Criminal Jurisprudence Committee:
We have it in Texas already. We have it in Texas for cases that are outside the Penal Code, basically. It was just applied in the Tom DeLay case, okay, in which the Court of Criminal Appeals used it to interpret a statute 180 degrees differently than the Texas Supreme Court interpreted the same statute in the Elections Code. And the Court of Criminal Appeals applied it because it was a crime outside the Penal Code.  And the result is, they said the tie went to the defendant in that case rather than in the Texas Supreme Court case, then-Justice Abbott had found that someone could sue under the same Elections Code provision, and it all had to do with mens rea.
Shannon said the rule of lenity is an "obscure legal issue" that "egghead appellate lawyers" argue about in court after the fact and that existing statutory construction case law covers what Levin wants done. He cautioned specifically against applying the rule of lenity to penal code offenses. Elizabeth Henneke from the Texas Criminal Justice Coalition followed Edmonds and offered effective, lawyerly counterpoints to his position, for those interested in the specifics. See her written testimony.

Grits emailed DeLay's attorney, Brian Wice, to ask his opinion of Shannon's comments. He responded:
His comments about the rule of lenity being "an obscure legal issue" marginalize a tenet of the criminal law that is a fail-safe mechanism in cases such as DeLay where prosecutors were permitted to manufacture an illegal act out of a series of perfectly legal ones and to not merely prosecute Mr. DeLay but to turn his life upside town for almost a decade before the CCA put an end to their legally bankrupt persecutorial ploy.

And his half-hearted snarky remark about "eggheaded appellate lawyers" was, simply put, bush league. He can say what he wants. At the end of the day, the vote in DeLay was an 8-1 smack-down against the good folks he shills for. He can have the soapbox.  We got scoreboard.
You can listen to the hearing here. The discussion of the rule of lenity is the first item, with Edmonds comments on the topic coming at the 49 minute mark and Henneke following after him.

Roundup: Of atonement, prison bankers, pot and imaginary terrorists

Lots going on and I won't have time to write about all of it. Here are several items clogging my web browser that merit Grits readers attention, even if they may not make it into independent posts:

Dallas PD will move to citations for pot possession
After revamping its systems, Dallas PD will attempt for the second time to exercise authority granted them by the Legislature in 2007 to issue citations instead of arrest people for marijuana possession and a handful of other Class B misdemeanors, reported the Dallas News. The main reason is to keep police officers on the street, saving: "each officer the two to four hours squandered in driving a nonviolent misdemeanor suspect to the county jail and going through the booking rigamarole." At a House County Affairs Committee hearing in May, legislators discussed simply reducing penalties for pot possession and driving with an invalid license (DWLI) because so few departments were using this authority and local jails were still too full of petty pot offenders. MORE: From Unfair Park.

Austin to eliminate rape kit backlog
Thanks to extra staff and funding, Austin PD plans to eliminate its rape-kit backlog - which is much smaller than was Houston's - within 12 months, the chief announced.

Dallas DA's race goes negative, gets personal
The Dallas DA's race is getting ugly and personal. This is the kind of election that both makes me miss performing opposition research in campaigns and simultaneously glad to stay miles away from the process. Watkins should, and may still, win this election going away. The only things keeping it close are inexplicable, self-generated gaffes. His opponent Susan Hawk may have strayed over the line implying he was drunk at a debate. There are various means for launching an attack and that wasn't the smartest way to stage that one. But Watkins doesn't look much better. He seems bent on providing fodder for critics instead of creating an alternative narrative voters can latch onto. Such races make me miss oppo research because this is the sort of race where well-crafted negative messages could make a big difference. (Neither side seems to have that sort of professional help, judging from the predominant messages in the campaign.) It makes me glad to stay away because the whole thing is becoming highly personal and will result in grudges held by the principals for many years to come. I don't need that kind of pointless, narcissistic drama in my life.

Bexar considers expanding public defender office
In San Antonio, Bexar County officials are mulling a full-blown public defender office, expanding on the appellate and mental health public defenders operating there now. This article by Michelle Cassady discussed obstacles to creating a public defender steps the county is taking to overcome them. The reason for the move: economics. "Defendants in 64 percent of all criminal cases filed in the county last year declared themselves indigent — too poor to afford representation — and were appointed an attorney, according to county records."

Do criminal laws rob offenders of atonement?
Hanna Liebman Dershowitz, a former staffer for state Sen. Rodney Ellis and now an attorney with the Jewish Council for public affairs, had an article in the Jewish Daily Forward (Oct. 6) which opened, "We are emerging from the Day of Repentance — a time for contrition for misdeeds, focusing on self-improvement and making a fresh start. But what about people who don’t have the luxury of wiping their slates clean, even for minor transgressions? Are our laws and policies robbing millions of citizens of their own opportunities to turn toward good, to achieve the possibility of teshuvah, atonement, that we claim for ourselves each year?"

ISIS still not infiltrating the Texas border
Politicians are going to keep repeating this garbage so it's worth highlighting the factual counter whenever it's offered: The "claim that Islamic State fighters were apprehended in Texas" was “categorically false” according to the Department of Homeland Security and “not supported by any credible intelligence.” The allegations "gained widespread attention on Wednesday, especially on conservative news websites." And remarkably, "The National Republican Congressional Committee, for example, is running an ad in Arizona that claims terrorists are entering the country through the state’s southern border." Rick Perry put similar, garbage allegations on TV in 2006. It was a lie then, just like now, but that didn't make the political message any less successful. The reason politicians just make stuff up and stick to their guns in the face of all evidence is that, as often as not, it works.

'Meet the prison bankers who profit from the inmates'
The subhed is the title of a recent Time magazine article focused on the little analyzed topic of moving inmates' money.

Police and private surveillance
Every time one turns around there are new stories out that make you question the vast scope of mass public surveillance, including these developments regarding private surveillance of public spaces.

Manuel Velez leaves death row: Case tainted by flawed forensics, ineffective counsel

Another questionably convicted capital defendant has walked off of death row a free man. Manuel Velez, whose capital murder conviction was overturned based on ineffective assistance of counsel and the state's use of a future dangerousness expert whose testimony was debunked, pleaded guilty to a lesser charge and was released based on time served. Reported the Houston Chronicle:
Manuel Velez, a 48-year-old construction worker from the Rio Grande Valley who had been on death row for the capital murder of his girlfriend's 11-month-old baby, was released Wednesday on parole.
"I'm very happy. I thank God for my lawyers, for my freedom, for getting me out of death row," Velez said as he left prison in Huntsville on his way to Brownsville to be with his family.

Velez was allowed to be paroled after pleading no contest to a lesser charge of injury to a child.
Summed up Huffington Post writer Saki Knato, "To Velez's supporters, his release on Wednesday is the culmination of a legal drama that exposed many of the broader problems plaguing the justice system in Texas and beyond. The case 'contained a litany of injustices, including police misconduct, prosecutorial deception, ineffectiveness of defense counsel, and untruthful witnesses,' said Richard Dieter, head of the Death Penalty Information Center, in a statement." The Cameron County DA, by contrast, insists Velez is guilty. Either way, today he's a free man and to judge from the forensic evidence - which showed the injuries at issue occurred while he was out of town - IMO quite possibly an innocent one.

Pam Colloff's Texas Monthly story on the case may be the best overview for those unfamiliar with his story, doing an especially good job vetting the flawed forensic testimony. See also the trial judge's recommendation that Velez receive a new trial based on having received ineffective assistance of counsel. And here's a statement from Velez's attorney from the national ACLU.

MORE: From the Texas Observer. AND MORE: From Breitbart Texas which prematurely (from a legal perspective) declared Velez "innocent" TDCAA tweeted in retort, "Release on parole, yes. Innocent, no."

Wednesday, October 08, 2014

Levin: Create new barriers in House rules to new crimes, penalty enhancements

Grits liked Marc Levin's suggestions to the House Criminal Jurisprudence Committee yesterday to reduce the proliferation of new laws and criminal penalty enhancements every session. 1) To create criminal penalties outside the penal code should require both the Criminal Jurisprudence Committee and whatever committee normally handles the code to approve the bill. Anything that slows down the process for new criminal penalties would be helpful, he said. For example: 2) Disallow new crimes and enhancements from being passed on the House Local and Consent Calendar. He also suggested, 3) "strengthening the fiscal notes" for bills with new or enhanced criminal penalties to better reflect the true costs, particularly to local government and 4) requiring captions to state if the bill includes new crimes or penalty enhancements.

Levin noted that we have a process for "Sunsetting" agencies but not outdated criminal laws. He pointed to the example of Minnesota's governor calling an "Un-Session" to repeal outdated, duplicative and unnecessary laws and suggested the Legislature should create some sort of interim commission similar to that suggested in unsuccessful legislation by state Rep. Steve Toth last session. See the new TPPF by Vikrant Reddy on the topic, "More Law, Less Justice: The Proliferation of Non-Traditional Crimes in the Texas Legal Code" (pdf).

Shannon Edmonds from the Texas prosecutors' association told the committee there were now more criminal offenses in the Texas occupations code than the penal code.

Former Statesman reporter now director of TX House Criminal Jurisprudence Committee

At the beginning of yesterday's House Criminal Jurisprudence Committee meeting, Chairman Abel Herrero, a Corpus Christi Democrat, announced the appointment of former Austin Statesman reporter Miguel Liscano as committee "director" (which is presumably different from "clerk"). Liscano went from UT-Austin's Daily Texan to brief stints at the Fort Worth Star-Telegram's Austin bureau and the Waco Tribune Herald before landing at the Statesman, where he spent seven years. During the 2012 cycle he worked as an opposition researcher for political campaigns before joining Herrero's staff.

Liscano recently completed a masters degree from UT-Austin's LBJ School of Public Affairs where he worked with a team which "analyzed the possible effects of raising the age of juvenile jurisdiction in Texas from 17 to 18. We examined similar laws in other states, paying close attention to the process and methods advocates used to make the change happen. My colleagues and I also interviewed stakeholders in Texas to figure out how such a change might affect our state," according to his LinkedIn page.

Congrats, Miguel, and good luck with your new gig.

Border security gave DPS pretext for statewide intel gathering capacity

By the Legislative Budget Board's estimate, Texas spent $452 million on stand-alone border security expenses from fiscal years 2008 through 2013. See a nifty two-pager (pdf) published last year summarizing budgets and revenue streams, which includes this description of new statewide intelligence capacity being developed under the pretext of "border security":
The current state border initiative, Operation Border Star, was first funded with $110.3 million in General Revenue Fund-related and State Highway Funds by the Eightieth Legislature, Regular Session, 2007. Operation Border Star centers on the use of intelligence to increase the effectiveness of federal, state, local, and private law enforcement assets. Regional intelligence is collected by six Joint Operations Intelligence Centers (JOICs) in the border area. These JOICs send intelligence data to the Border Security Operations Center (BSOC) in Austin. Administered by Texas Rangers, the BSOC integrates regional intelligence to help determine a more efficient use of law enforcement assets in the larger border area. A major tool used by the BSOC is TxMAP. TxMAP merges intelligence from JOICs and other sources to provide a real-time display of criminal activity layered on a Texas map.
So, exactly what are "private law enforcement assets"? Rent-a-cops? Bounty hunters? Informants? Companies selling license-plate-reader data? Maybe Stratfor? (IMO more of a media outlet.) What does "private law enforcement assets" mean? Readers' thoughts?

Also one notices the intelligence folks are looking at a Texas map, which as we know, doesn't stop at the Willacy County line. Though this capacity has been developed on the pretext of "border security," the same methods and software are capable of being aimed anywhere in the state at anybody. And since crime on the border is much lower than in the state's big cities, it won't be long before the original justification will be viewed as a flash in the pan. Texas is a regional transportation and money laundering hub for illegal narcotics, so it will be easy enough for law enforcement to justify using their new toys tools elsewhere in the state, assuming they're ever even asked to explain it at all.

For the record, $452 million is enough to fund the state's prison system for a year. That's a lot of money with very little to show for it in terms of demonstrable improvements to security. The state has been shoveling border-security money down a bottomless pit, and under the watchful eye of supposed GOP budget hawks, to boot.

Every time I see poll numbers showing that border security and immigration rank highest among voter concerns, I think to myself, "these are rich people problems." Anyone actually judging the budget based on cost-benefit analysis can't possibly justify state border security spending at these levels.

19 sex-assault indictments so far from testing Houston rape-kit backlog

The Houston Chronicle's Mike Morris brought us an update (Oct. 6) on the vetting of the Houston PD's rape kit testing backlog. The story opened:
Houston's effort to test a nearly three-decade backlog of sexual assault kits has resulted in new charges filed against 19 people, city officials said Monday, including 10 suspects identified and arrested for the first time.

One of the new suspects has been charged in connection with two assaults; another remains at large, Houston Police Department spokesman John Cannon said. The other eight suspects, he said, already are in jail on other charges and now face sexual assault charges.

City Council in 2013 paid $4.4 million to two private labs to test DNA samples from 9,750 cases, including a backlog of 6,600 rape kits dating to 1987. The labs' work is nearly done, and staff from HPD and the city's forensics lab now are entering all eligible genetic information into the Combined DNA Index System, or CODIS, a national law enforcement database.

So far, DNA from 1,031 of those cases has produced "hits," meaning a suspect's DNA already was in the database in connection with an earlier crime. In the vast majority of cases reviewed to date, officials said the suspects are known to police, having been arrested, convicted or detained at some point.

HPD Assistant Chief Matt Slinkard said the reviews have confirmed police arrested the right person in 58 sexual assault cases, but officials did not release details Monday about these cases or the 19 suspects hit with new charges. The Houston Chronicle reported in April the testing had identified at least one serial rapist already in jail on other charges.
Some have criticized this process, often anonymously, as wasteful given the bang for the buck. For those critics: Explain in the comments how many sexual assault cases would be enough to justify the expense?

Will new bureaucracy stop abhorrent Harris jail conditions?

Harris County Sheriff Adrian Garcia says he's fired 249 people since taking office five years ago and expects the number to rise following an investigation of a mentally ill inmate left alone and untended. The Houston Chronicle reported that the incident spurred Garcia to create a new "jail compliance bureau" to monitor conditions.

I'd be curious to learn how many of those firings survived the civil service arbitration process? The Harris County Sheriff is the only county sheriff's office in the state covered by Ch. 143 of the state civil service code, so the Sheriff saying "you're fired" like Donald Trump isn't the final word.

Creating a new "bureau" on jail conditions might work to the extent the problem was mere negligence. If, as Grits thinks likely, this was a case where retaliation was sanctioned by supervisors against an inmate who hit a guard, those folks will find a way to get around any monitoring. E.g., having lieutenants instead of sergeants do "quality of life checks" may be a fine suggestion, but three lieutenants, a captain, a major and two chief deputies all knew what was happening to Terry Goodwin and it didn't make a difference.

Systems are important but the same human beings as before will operate them, excepting only the ones whose names Garcia successfully tacks on to the list of 249.

Coverup in Amarillo? Cops' burglary/search oddly unprosecuted

What a bizarre story! A former Amarillo PD officer was indicted last week on evidence tampering charges. Here's the nut: Officer Saulo Bravo and his partner, who has not been publicly named, without telling their supervisor, much less securing a warrant, drove an unmarked car to a presumed suspect's home at 2:30 in the morning on Aug. 24 and, out of uniform, broke in like a couple of two-bit second-story men and began searching. The homeowner awoke and heard them but they only announced themselves as police officers when he began shooting at them with a pistol.

Later that day, Bravo "allegedly concealed an affidavit that was to be used as evidence in a pending investigation" and also "allegedly destroyed a supplement to a police report and changed the report," reported the Globe-News. So the indictment is over covering up records related to the burglary, not the burglary itself.

Inexplicably, reported the paper, "Police have not said whether Bravo’s partner was disciplined over the incident." However, since under the civil service code there'd be a public record if he'd received discipline that involved a suspension, we know that means any discipline did not rise to the level of losing pay over it. Certainly the partner isn't being prosecuted for the B&E; nor is Bravo, for that matter. As is so often the case in public life, it's not the bad act but the coverup that triggers a response.

Read the Globe-News account. Let me know in the comments whether you think of this as a Fourth Amendment violation, primarily a records-tampering issue, or is this mainly a burglary/crime?

If Amarillo PD won't even name both officers involved and nobody is being prosecuted for the actual break-in, this becomes a matter the department can't be trusted to handle internally.  Maybe it's time for the Texas Rangers or the Justice Department to step in to determine whether Bravo and his partner should be prosecuted for more than just the paper-work faux pas listed in the indictment. It's not just that Bravo tampered with evidence to cover up what he'd done, it's what he'd done! And got caught! If anyone but cops broke into your home and got caught red-handed, they'd catch a burglary charge. Bravo's partner didn't even get a one-day suspension.

As an aside, this has implications for the Michael Morton Act. Let's say Bravo's partner is still working as a police officer generating evidence for prosecutors to use in criminal cases. Will prosecutors reveal his role in the burglary to defense counsel as impeachment evidence? If he's anonymous so far, that implies they don't intend to make that information public. Such diffidence toward misconduct could be more easily swept under the rug before the Michael Morton Act, which raises questions about secret personnel files in civil service cities that haven't been widely considered.

Grits' prediction: They plead Bravo's case down to a Class A misdemeanor charge, he gets probation and loses his badge. Also, the bit about the partner not receiving public discipline stinks to high heaven. If this case doesn't draw down outside oversight, the takeaway can only be that effectively there isn't any. The DA should seek recusal and ask for a special prosecutor and get these cases out of the hands of local politicos.

Tuesday, October 07, 2014

'Economist': Judges must seize back power from prosecutors

The Economist last week (Oct. 4) published a pair of pieces lamenting the super-sizing of prosecutorial power and calling for the state to hand back some of its authority to the judiciary.
The arguments are framed in terms of the federal government but would apply equally well to state-level courtrooms. E.g., "Several legal changes have empowered [prosecutors]. The first is the explosion of plea bargaining," which occurs at a slightly higher rate in Texas, even, than the federal number cited by The Economist.

"Another change that empowers prosecutors is the proliferation of incomprehensible new laws." Check.

Further, "The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with 'co-operating witnesses,' once rare, have grown common." Check. (The article opened with the story of prosecutors allegedly withholding evidence of a snitch deal in Todd Willingham's capital case.)

The main story concludes:
Prosecutors enjoy strong protections against criminal sanction and private litigation. Even in egregious cases, punishments are often little more than a slap on the wrist. Mr Stevens’s prosecutors, for example, were suspended from their jobs for 15 to 40 days, a penalty that was overturned on procedural grounds. Ken Anderson, a prosecutor who hid the existence of a bloody bandana that linked someone other than the defendant to a 1986 murder, was convicted of withholding evidence in 2013 but spent only five days behind bars—one for every five years served by the convicted defendant, Michael Morton.

Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems. Judge Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker. He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.

Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials. This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.

Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”

'Prostitute testifies she traded sex for protection from ex-Dallas cop'

The Dallas Morning News yesterday reported ("Prostitute testifies she traded sex for protection from ex-Dallas cop," Oct. 6) on an episode in which a police officer allegedly traded advice and protection for sexual favors. The article opened:
A prostitute testified Monday that she gave a former Dallas vice detective sexual favors in exchange for advice about how to avoid arrest and tips about his unit’s raids and investigations.

The woman, who asked that her identity not be revealed, testified on the opening day of the federal trial of Jose Luis Bedoy. He was arrested last year and charged with three counts of obstruction of an official proceeding and one count of obstruction of due administration of justice. He later resigned from the Dallas Police Department as a senior corporal.

Evidence that the U.S. attorney’s office is presenting during the trial also includes numerous text messages and recorded phone calls between Bedoy and the prostitute he allegedly had sex with in exchange for police protection.

The government’s case, however, may be hurt by disclosures last week that the FBI’s two key witnesses — including Monday’s witness — have continued to work as prostitutes while acting as FBI informants. Bedoy’s attorneys sought a delay in the trial to be able to research prosecutors’ “eleventh hour” revelations. But U.S. District Judge Barbara Lynn denied the request.

Bedoy, 40, met the woman in early 2009 during a raid on an adult entertainment business, court records show. He helped her when she tried to recover property that was seized in the raid.

Bedoy later contacted her to say he would like to get a massage from her, federal authorities said. That gradually led to more regular contact between the two over several years in which Bedoy alerted her to police investigations and then sought “massages” from her in return, prosecutors said.

On Monday, the woman described the relationship. She said Bedoy once helped her identify a client as an undercover police officer. He also told her when his vice unit was on duty so she could work certain days and hours without risk of being arrested, she said.

Once Bedoy went to her apartment to tell her how to detect an undercover officer, she said.
“If he was an undercover, he wouldn’t let me touch his private parts,” she said.
It's hard to guesstimate how often such line-crossing occurs when it comes to policing the oldest profession. Long-time readers may recall a study out of Chicago finding that three percent of tricks turned by prostitutes without a pimp in their dataset were for police officers in exchange for protection. And we've seen allegations that the feds intervened to protect an informant running a prostitution ring in San Antonio.

Either way, that doesn't change the big picture Catch-22: Criminalization of prostitution makes offenders out of victims in ways that further the aims of sex traffickers, making women less likely to cooperate with police or prosecutors. It's one thing for the Lege to talk about diversion programs, another thing to fund them. Make the path out easier and perhaps more women will follow it.

In the meantime, requiring police to wear body cams would reduce the overall number of opportunities for such misdeeds. These are coercive methods exercised exclusively in the shadows; they're arguably best prevented by exposure to disinfecting sunlight, which is an added benefit of this case making it all the way to trial.

Monday, October 06, 2014

Disputed confession corroborated by jailhouse snitches seeking secret deals may have resulted in two false convictions

Grits apparently forgot to post anything about this story when it came out last month, so let's correct the oversight.

Two Dallas men, Dennis Allen and Stanley Mozee, who were convicted based on Mozee's disputed, un-recorded confession and the testimony of now-discredited jailhouse informants, appear poised to have their convictions overturned, the Dallas Morning News reported last month (Sept. 11). My employers at the Innocence Project of Texas along with the national Innocence Project are representing Allen and Mozee. The paper's editorial board opined the next day that, "As the underpinnings of the convictions come out, criminal justice advocates in Austin will inherit more ammunition for one overdue reform: mandatory recording of suspect interrogation." The editorial board elaborated:
Key to the prosecutions is what transpired between Mozee and a detective in the interrogation room. The detective said the suspect was well-rested and lucid for the last session. Mozee said he was strung out on drugs and alcohol and was off his psychiatric medication. Moreover, he said the detective threatened him with these words: “Somebody’s going to get the needle, and it’s going to be you if you don’t come up with something.” That last interrogation ended with Mozee signing a statement depicted by prosecutors as a confession but later disputed by the suspect himself. Further, it was at odds with other evidence in the case, the Innocence Project brief says.

The phenomenon of false or coerced confessions has been established in recent years as contributing to an alarming percentage of convictions later overturned by DNA tests. It would be foolish for state lawmakers to ignore the chance to build in a common-sense safeguard and require police to start a recording when they formally question a suspect. Jurors would be thankful for eliminating the guesswork.

The Allen-Mozee cases also illustrate the wisdom of reforms enacted by lawmakers just last year. The Michael Morton Act, which took effect Jan. 1, requires prosecutors to share key case information with the defense. Innocence Project lawyers cited numerous documents favorable to Mozee and Allen that weren’t divulged before trial — such as correspondence with jailhouse informants who expected favors in return for testimony against the murder defendants.

If prosecutors stitch together a case with witnesses such as this, the reality ought to be clear to the court. The Constitution demands it, now with backup from Texas law.
According to the Morning News report, the habeas writs hinge not just on DNA testing techniques that didn't exist at the time of trial but also newly discovered evidence that prosecutors allegedly concealed informant deals from both the defense and jurors.
Though [Dallas attorney and Innocence Project of Texas board chair Gary] Udashen said the DNA evidence is compelling, he said attorneys were startled by additional evidence they found in the prosecutor’s original case file. Under an “open file” policy adopted by District Attorney Craig Watkins in 2008, attorneys filing a writ can view the file while preparing their case.

In that file, attorneys found letters from the inmates who had testified that they’d heard the two men admitting to the murder.

During their court testimony, the informants said neither had been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the State in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while insisting to jurors “that no such discussions with these informants had ever occurred.”

The two inmates have now told the defense attorneys their testimony was false, the filing says.
[Retired prosecutor Rick] Jackson said he “never, ever made any type of deals up front. I told every single lawyer I ever dealt with that was the case and that was no different in that case.

“There were no deals in place, period, end of story.”

Udashen said he has a “high degree of confidence that the convictions are going to be set aside.”
“Whether or not it ultimately results in an actual innocence finding,” he said, “I think a lot of that is going to depend upon what the DA’s office determines in their own independent investigation.”
The Morning News is exactly right about the significance of this case vis a vis legislation to require police to record interrogations. Who doesn't think justice would have been better served - then and now, whether these two men are innocent or not - if Mozee's original interrogation and confession had been recorded and everyone could see for themselves what happened there?

As recording tech and  storage gets cheaper and easier to manage, there are increasingly scarce few viable arguments against recording interrogations except that police are afraid the public may disapprove of their techniques.

Habern: On plea bargains, parole, and the consequences of untested evidence

Long-time Texas parole attorney Bill Habern, whose comments on the Pamela Freeman case Grits appended to this post, followed up with an email pointing out an aspect of the parole process that deserves readers' attention:
One of the big problems with the Board is that 97% of everyone in TDCJ is there by plea bargain. Usually the deal is cut out in the hall just before the plea is entered in many cases. There is no pre-trial hearings relative to the contents of the police report or other allegations as to what the state says are the facts of the case. As a result of that matter way too many parole cases determined  (many years later) on those old police reports which every trial lawyer who ever defended a criminal case knows always contain errors. However, too frequently in plea deals the errors are never even raised or tested under the rules of evidence. Sometimes these are serious errors. Pre-sentence reports do not correct this issue, and in state court too few lawyers fight to correct those errors once the court receives a PSI [ed. note: presumably a pre-sentence investigation file]. After all, the client has entered a guilty plea, he said he did it, lawyers just do not seem to understand how important it is that a plea is based on correct facts.

Fixing those factual problems years later is one of the things that parole lawyers do. The parole board relies on these police reports when voting a case for parole. Thus the factual issues are not really faced until the defendant faces the parole board and learns what substantial errors are found in the police reports. Most of these errors are errors which will make no difference to the innocence or guilt of the offender, but damn sure make a difference to the parole board.

This whole parole system needs to be re-examined. In all the other states I have done parole work in, none of them operate like the Texas system. THIS PROBLEM IS NOT THE FAULT OF THE PAROLE BOARD--IT IS THE FAULT OF THE LEGE. [Emphasis in original.]

Grits' obligatory ten-year anniversary post: Why are we here?

Today is the tenth anniversary of the first blog post on Grits for Breakfast, which itself subsumed a website on similar themes (hand-coded in HTML) that I'd operated since 1997. From Oct. 6, 2004 until now, Grits has published 7,975 blog posts which garnered 4.9 million visitors, 7.7 million page views and hosted upwards of 89,600 comments. More than 1,700 of you receive a daily email with links to the previous day's headlines (and if you don't, you can sign up in the right-hand column). So first things first, thanks for reading.

That said, at this milestone I should iterate exactly what this blog is and why I do it. In truth, Grits for Breakfast isn't really here for your benefit but mine. or it wouldn't still exist. Moreover, it would almost certainly exist whether it gets 2,000 readers per day or 20.

This blog serves two purposes for me as an advocate that justify maintaining it and neither of them involve maximizing readership or public-education goals. Instead, I use the blog as a clip file and a platform for developing and honing arguments for later use in policy making settings.

The clip file aspect was a life changer: Ten years ago, the office I'm writing in was lined with four-drawer filing cabinets filled with years' worth of clip files and stacks of newspapers waiting to be recycled. Today, my newspaper subscriptions are all online, reimbursed by this blog's contributors (thanks for that, btw). But every morning throughout the '90s and through the turn of the century I'd get up and retrieve four or more newspapers from the driveway, clipping out articles relevant to the issues I was working on (criminal-justice or otherwise), pasting them onto a piece of paper and scrawling a few notes by hand about what I thought was important to remind me why I'd saved that particular article.

Many blog posts on Grits are little more than went into the clip file - a link, footnote-able citation, an excerpt of money quotes from an article that may not be on the web a year later when I need it, and a few sentences saying why I think it's important, or in some cases, erroneous, linking to related information. I've eliminated four filing cabinets from my office (down to one) and using Google's Blogger software (though I've taken some techie crap for it) makes the platform and long-term storage free. As an added benefit, making my clip file public gives others who work on the issues access to the same resource. If I find it useful, the theory goes, others working on the topic will as well.

The other main use for the blog is developing, vetting, and promoting arguments surrounding criminal justice policy debates, whether aimed at legislative or other settings. Some blog posts amount to the equivalent of a letter to the editor or a constituent letter. I'll voice an opinion in a post then email the link to as many of the involved parties whose addresses I have access: politicians, their staff, agency folk, advocates, the reporter covering a story, whoever are the principals. Or, sometimes opinion leaders help out by passing the link around for me.

Such content may differ little from other letters pols or media types receive, but in their mind's eye they can't help wonder who else is reading it on the blog and its public nature gives the words just a bit more oomph. Plus, commenters help to develop, refine or even refute arguments, at their best serving as sort of an ad hoc focus group. That's one of the reasons over the years that I've become more of a stickler about deleting off-topic comments - they're simply not useful to me for the narrow purposes that motivate this blog. Oppositional comments, by contrast, are incredibly useful and Grits considers pointing out flaws or blind spots in my arguments a mitzvah. Better to confront a strong argument for the first time in a blog comment than later in front of a legislative panel.

To the extent readers find Grits informative, interesting, etc., that's an ancillary benefit. I'm glad you do and it's a happy coincidence that a medium which solved some of my own information gathering and processing needs is helpful to others as well. I'll continue to do it as long as I find it useful and, on the day it isn't, I'll quit.

In the meantime, thanks for stopping by.