Thursday, October 30, 2014

Harris DA delayed notice to hundreds of drug defendants 'convicted in error,' some of them for many years

Apparently the plea mills that constitute the Harris County criminal court system have become so efficient they can secure convictions even without evidence; the accusation in and of itself appears to be sufficient to coerce a plea, and the local defense bar does such a crappy job that nobody ever calls them on it.

Reported the Houston Press (Oct. 29), "In recent months the Harris County District Attorney's Office has sent out hundreds of notices to defendants convicted of drug offenses, telling them that forensic lab reports show they were 'convicted in error.'" The scope of the problem turns out to have been much greater than previously reported.
The letters, which were sent between July and September 2014, show hundreds of defendants who took plea deals for misdemeanor and felony drug possession charges were later cleared when evidence tested by an HPD crime lab analyst came up negative for a controlled substance. Court records show that while prosecutors were notified several years ago that those tests came back negative, defendants weren't told until months ago.

The Press is currently reviewing the cases, some of which date back as far as 2004. In some cases, the HPD crime lab notified the DA's office that there was no evidence of a controlled substance before a defendant even took a plea deal. Take, for example, a man who was charged on September 25, 2008 for possessing less than a gram of cocaine, a felony. Records indicate an HPD crime lab analyst sent prosecutors a letter on October 21, 2008 saying there was no evidence of a controlled substance. Still, the DA's office struck a plea deal with the man on October 26, 2008 -- one year in county jail. Anderson's office sent the defendant a letter on August 5, 2014, informing him that he had been convicted in error.

In most cases, it appears the negative lab reports came back months to a year after a defendant took a plea deal. Some defendants would go on to rack up multiple drug charges and other criminal convictions. However, district clerk's records show that for others, the faulty conviction was their only charge, one that sat on their record even though the DA's office for years had reports showing evidence in the case tested negative for drugs.
Next up, Anderson needs to launch an internal investigation to identify and interview the prosecutors in all those cases to discover whether they knew about the contradictory lab results, if not why not, and if so, what if anything they did in response to that information. If ADAs knew defendants were sitting in prison based on false charges and never notified them, those prosecutors should be the subject of state bar grievances and I wouldn't lose any sleep if they were hounded out of the profession.

Finally, thank heavens Harris has a public defender office to provide an institutional counter-weight to the DA's office and a structural means to handle such a large number of similarly situated cases. As we've seen from the Jonathan Salvador fallout, where that infrastructure doesn't exist the DA's office runs the whole show and may have less incentive to do the right thing.

MORE: In an email, Nicolas Hughes of the Harris County Public Defender office said he thought the current DA administration had been "more than helpful" in resolving these cases, some of which involved "clients who possessed something, but not what they were convicted of." In the past, he said, Brady issues were handled at the DA's office on a case by case basis by trial-court chiefs instead of imposing a comprehensive policy on similar cases as they've done here. So good for Devon Anderson as far as that goes. Beyond Brady issues, wrote Hughes:
I believe there’s a greater issue that lurks behind these cases. The decision to plea is the clients’ decision alone. I am not saying that there are not lawyers, even many lawyers, that prematurely urge their clients to plea, but there is an incredible pressure placed on incarcerated defendant. This is not as big of an issue for clients on bond, but it takes a strong stomach to sit in jail for a couple of months on a weed case when you can get you with credit for time served in a couple of days. Currently, if you are lucky, lab results come back in a month or so, but that depends on the lab. As the length of time increases, so does the intestinal fortitude to stand on principle. Even when you’re on bond, awaiting trial is hardly an enjoyable process. There’s a lot of pressure to crater, and I think every lawyer has met clients that have pled guilty, against the lawyer’s recommendation, because of the pressure. I don’t know what to do about this issue. Perhaps longer docket settings for cases and greater availability of bonds?

What’s the ultimate solution? It would be good if significantly more personal bonds were granted, particular in these non-violent drug cases. It would be great if the police were to employ a “catch and release” process, submit an alleged CS for testing, and wait until the results were back before making an arrest. It would be greatest if simple drug crimes were treated as “diseases” and not crimes or were simply taxed and regulated in a manner that helped society “insure” against any ills the drugs might cause.

Which of these do I think is possible or palatable to the public at large? I’m unsure. Though there’s a groundswell of support for legalization of marijuana, I do not believe a significant portion of the public support a total repeal of drug prohibition.
It's not clear we must wait to end drug prohibition to solve this problem, however. The idea of using "catch and release" - delaying arrest until a crime lab tests the evidence - would do the trick in most workaday cases. Meanwhile, there have been so many good arguments over the years as to why Harris County judges should issue more personal bonds that it seems doubtful this episode will change anybody's minds. But who knows? Maybe the scandal's scope and the specter of Brady violations for prosecutors could finally get people's attention.

I'm looking forward to seeing more local journalism on this story; it sounds like so far we've only scratched the surface.

Union: 'Right on Crime' backers are 'bottom-feeders,' 'vultures'

The less you have to sell, the harder you sell it!
The less you have to say, the louder you yell it!
The dumber the act, the bigger the confession!
The less you have to show, the larger you dress it!
You gotta get up!
You gotta get up and be loud!

There's a rather remarkable diatribe on p. 3 of the newsletter (pdf) from the state's largest police union, the Combined Law Enforcement Association of Texas (CLEAT) that deserves attention for both its detachment from reality and its use of hyperbole and demagoguery to stir up their members. CLEAT executive director Charley Wilkison offered up a column which nearly reads like satire, announcing that:
After years of being marginalized as the nutcase enemies of the police, the far left and far right are now converging with a brand-new scheme.

Across the country comes the various “Right on Crime” and “Smart on Crime” initiatives that have at their core a sweeping plan to neuter law enforcement.

After failing at successfully bringing for-profit prisons and jails to the mainstream, the same crowd now aims to tear down the structure and bring your arrest powers, the number of police, the equipment you use, your job and your pension all down in one fell swoop.
Though Charley framed the issue in terms of left and right, it seems to be efforts by conservatives, particularly the Texas Public Policy Foundation and their allies at the Texas Association of Business, though he never names them - which really have gotten under their skin:
Remember a short time ago the businesses that pushed for a massive overhaul of the criminal code? Changes to juvenile code, enhancements of federal immigration law? These movements spurred a massive buildup of private, for-profit prisons and county jails. As time has gone by the political tides have turned and public distrusts for profiteering in prisons has become less appealing. Also the raw scandals behind many of the prisons have come to light.

Now that it’s clear that the criminal justice system will never be a long term profitable venture — the bottom feeders and vultures have moved on toward finding new money. They are now eying the costs of law enforcement, calling for a wholesale reduction of criminal penalties. This thinly disguised attack on law enforcement is a political game changer in that it is a bad idea wrapped in reasonableness. The sneakiest of the sneak plays.

The powerful people who helped lure millions to this country to lower labor costs have decided to send them home. The people who bankrolled the private jail industry now want the money from public safety budgets in your city, your county diverted away. They also look at your pension, your retirement, your health care benefits and now believe your benefit package is too rich and needs to be destroyed.
Never mind that the Texas Public Policy Foundation supported policies that helped close two private adult prisons last session, not to mention that municipalities, not the state, set the terms for police officer pensions, pay and health benefits. Why let reality get in the way of a good rant?

To Wilkison, officers are under an imaginary political siege whose supposed scope would shock  politicians who've supported the (IMO too) modest right-on-crime legislation at the capitol. According to him: "It’s clear that your profession, your rights and you as an officer are now under full scale attack," though not one actual example of such political "attacks" is cited in the article.

I realize this sort of hyperbolic innuendo and fact-free foolishness has become the norm throughout today's political culture. We can't talk about two or three cases of Ebola without every third idiot (many of them in front of a microphone) shouting that we're all going to die unless this or that xenophobic policy is implemented. We can't talk about foreign policy without somebody claiming the president is a traitor or insisting that anyone who opposes new wars is "soft" on terrorism. Oppose affirmative action? You're a racist. Support making people buy private health insurance the way they must for their automobile? You're a "socialist" who hates capitalism. Support the Second Amendment? You don't care about murder victims. Want the broken immigration system fixed? You're for "open borders" and eventually someone will call you a race traitor.

That's the political environment we live in today and, regrettably, Texas police unions apparently feel the need to replicate that sort of disreputable demagoguery to be heard over the bipartisan voices calling to scale back mass incarceration in the state. In reality, Right on Crime reformers so far have avoided proposals that would impinge on police unions' labor issues. But if the unions are going to come after their agenda as ferociously as this commentary implies, there's little incentive to keep avoiding them going forward.

Ironically, Texas' leading prison guard union supports a big swath of the proposed Right on Crime measures because Texas prisons are short-staffed and turnover at many units is so high it puts their members in danger. So they're fine with reducing the prison population and closing a few more prisons because it would improve safety and working conditions for the officers who remain, possibly even freeing up money to enhance their pay and benefits.

But police unions aren't known for their sympathy toward other workers in the criminal justice system. (Indeed, reading through the newsletter one discovers CLEAT is more angry at a competing union - the Texas Municipal Police Association - than even the Right on Crime backers.) They want theirs and don't really care how it impacts other unions, state or local budgets, or taxpayers who foot the bill for their salaries. I don't find that to be the mindset of average cops on the beat, it should be emphasized. But more often than not it's how their representatives in the unions behave.

Wilkison promised that CLEAT has "developed a brand-new legislative strategy" to be announced next month at their annual conference. The part of me that appreciates political theater (particularly comedic performances like Charley's column) would enjoy it if CLEAT and Co. decided to employ this sort of over-the-top rhetoric at the Lege.

Since the GOP took over the Texas Legislature in 2003, it for the most part has forsaken the sort of union bashing that has occurred in Wisconsin and elsewhere. But given that Republicans control the body by a 2-1 margin, if they decide police unions are the enemy - or if the unions insist on positioning themselves as such - Charley and his pals may discover what an actual anti-union agenda looks like. This seems like a "be careful what you ask for" moment.

Wednesday, October 29, 2014

Dallas prosecutors withheld exculpatory evidence in 1999 murder trials

Two more Dallas men have been released based on habeas corpus writs after prosecutors withheld critical, exculpatory evidence at their trials about deals offered to jailhouse informants, reported the Courthouse News (Oct. 28). The article opened:
Two Texas men were freed Tuesday when their life sentences were overturned due to prosecutorial misconduct during their murder trials.

Dallas County District Attorney Craig Watkins agreed Tuesday morning to overturn the convictions of Stanley O. Mozee, 55, and Dennis Lee Allen, 52. The men were convicted of the robbery and stabbing death of the Rev. Jesse Borns Jr., who was killed in April 1999.

Dallas County Judge Mark Stoltz released Mozee and Allen on $25,000 bond during a hearing packed with their friends, family and other exonerees.

Both men await appellate rulings on their case and new trials.

Allen told the media outside the courtroom that he feels like he is "in heaven."

"Try to imagine the best joy you ever experienced in your life," he said. "That's what I'm feeling right now."

Mozee said that despite his ordeal he is not mad at anyone.

"I give the Dallas County judicial system a positive note," he said. "The Texas Court of Criminal Appeals [must now] act and do the just thing in this matter."

District attorney spokeswoman Debbie Denmon said Watkins' office was approached by the Innocence Project in late 2008 and allowed its workers to review of the case files, in accordance with Watkins' open file policy.

"It was only after this open file review that the Conviction Integrity Unit and the Innocence Project discovered letters written by jailhouse informants who were ultimately called as witnesses by the state," Denmon said in a statement.

"In these letters, the witnesses demanded certain benefits from a former Dallas County prosecutor in exchange for testifying, and/or sought to have the prosecutor deliver on promises that the witnesses believed had been made in exchange for their testimony."

The letters and "substantive discussions" were not disclosed at either Mozee's or Allen's trials.
See related coverage from the Dallas Morning News.

Tuesday, October 28, 2014

Grievance: DA's failure to notify defendants in Salvador mess kept inmate wrongly incarcerated for two years

A state bar grievance has been filed against Fort Bend County District Attorney John Healey over his failure to notify defendants eligible for release from prison that evidence in their cases had been tainted by the Jonathan Salvador scandal, reported Leah Binkowitz at the Houston Chronicle (Oct. 26). Now, defendant Jacob Estrada, whose conviction was overturned earlier this year, "claims prosecutors in Fort Bend County delayed notifying criminal defense lawyers of the tainted evidence, as required by law." Wrote Binkowitz:
When the Court of Criminal Appeals finally overturned his conviction in June and ordered his release, Estrada, 29, filed grievances with the State Bar Association against Fort Bend District Attorney John Healey and his chief narcotics prosecutor, Mark Hanna.

In them, he claims Healey's office, by dragging its feet, kept him in prison, knowing the evidence against him was not only tainted but actually had been destroyed, meaning prosecutors had no basis for ever retrying him.

Now, Estrada's grievances have become an issue just weeks before an election in which Healey will have a Democratic challenger for the first time in 20 years.

Healey, a Republican, would not comment on Estrada's case or on his decision to delay notification that the underlying evidence in his conviction had been undermined.
"I believe that our response was fair, it was realistic, and I think at the end of the day, it will be viewed as an acceptable response," Healey said.

Healey said that there were no instructions for how he should proceed once he was informed that he had more than 100 drug cases involving evidence handled by the discredited Department of Public Safety chemist Jonathan Salvador, who was fired in 2012.
It must be said that Healey's claim there were no instructions for how to handle the Salvador case is patently false. The Texas District and County Attorneys Association issued detailed guidance regarding notification, appointment of counsel for habeas writs, etc., early on. Here it is, from April 2012. Healey claims later in the story there were no "rules" for how to handle the Salvador case, which is slightly more accurate (if a bit of a weasel word, under the circumstances), but he absolutely received "instructions" regarding his obligations as a prosecutor in these cases. He just chose to ignore them.

MORE: Grits should have mentioned that, in addition to TDCAA's notice, the Forensic Science Commission issued a lengthy report (pdf, see Exhibit G) on the Jonathan Salvador episode that included recommendations for notifying defendants (and even form letters for prosecutors to use) which were sent to all 36 affected DA's offices. And the Court of Criminal Appeals' Criminal Justice Integrity Unit issued a "white paper" with the FSC on the topic of notification in cases of widespread forensic errors. That makes Healey's claim that he'd never received guidance regarding how to respond even more unbelievable. Really, it's just a lie, and a incredible one at that.

My personal belief is that the state bar will do nothing about this, but that says more about the ineffectiveness of their regulation of prosecutors than it does whether Healey intentionally delayed notifying defendants whose cases merited relief. It's quite clear that's exactly what happened.

How much do you wanna bet there are other counties among the 36 which also failed to notify defendants? Fort Bend almost certainly isn't the only one.

RELATED: Fort Bend DA failed to notify defense of alleged misconduct by DPS lab worker.

Monday, October 27, 2014

Levin: Helping ex-offenders find employment makes us safer

Marc Levin of the Texas Public Policy Foundation was quoted this week in the New York Times (Oct. 24) supporting the idea of "ban the box" legislation making it easier for ex-offenders to apply for certain public sector jobs. Here's a notable excerpt:
“There’s been a shift in people away from wanting to get even,” said Marc A. Levin, the policy director for Right on Crime, a conservative anti-crime group in Texas. “People are focused now on getting results. It really is a great benefit to public safety if ex-offenders are able to get jobs, find places to live and get occupational licenses — whether it’s from the perspective of the ex-offender or those of us who are going to live next to them.”

With an estimated one in three American adults having been arrested at some point in their lives, and 16 million people — about 7.5 percent of the adult population — who are felons or former felons, the question of how to reintegrate the 700,000 people who are released from prison each year has become increasingly urgent.

During the past several months, states and cities as varied as Illinois; Nebraska; New Jersey; Indianapolis; Louisville, Ky.; and New Orleans and have adopted so-called Ban the Box laws. In total, some 70 cities and 13 states have passed such laws — most in the past four years.

The laws generally prohibit employers from asking applicants about criminal records as an initial step in the hiring process and from running criminal background checks until job seekers are considered serious candidates for an opening.
Studies have found that ex-offenders, particularly African-Americans, are far less likely to be called back for job interviews if they check the criminal history box on applications, even though research has shown that those possessing a criminal record are no more apt to commit a crime in the workplace than colleagues who have never been convicted.

TPPF, TX Appleseed: Texas should decriminalize truancy

Derek Cohen of the Texas Public Policy Foundation and Deborah Fowler from Texas Appleseed had an op ed in the Dallas News this week (Oct. 23) making the case for decriminalizing truancy. Here's a notable excerpt:
Texas is one of only two states (the other is Wyoming) that employ the criminal justice system to punish truancy. The Texas Education Code — the body of law that regulates the activity of all educational institutions in the state — empowers school districts to file a criminal complaint against a child as young as 10 who has missed three days of school. After 10 missed days within a six-month period, however, the district’s discretion is removed and it is required to file against the child.

This is known as “Failure to Attend School,” or FTAS, a Class C misdemeanor that can carry up to $500 in fines and leave an indelible mark on the child’s criminal record. These fines are levied all too often on low-income families who don’t have the savings to pay them. If a child or parent is unable to pay the $500, or if the child misses one more day after adjudication, he or she can face jail time for the violation of a valid court order. In addition to the burden this places on families, the criminalization of truancy is a drain on limited court resources.

Adding to the frustration and confusion, the Texas Family Code already has a provision dealing with truancy. This is the Conduct Indicating a Need of Supervision section, which directly mirrors the language in the Education Code. However, this statute prosecutes students only through the juvenile court, eliminating the concern that this will lead to an adult record.

Further, FTAS misdemeanors saddle children with a criminal record that can keep them from future civil or military service. The sealing or expunction of these minor offenses stand to cost hundreds of dollars more in court costs and legal fees for individuals who, usually, are among those least able to afford it.

The Texas Legislature should move quickly to remove the criminalization of skipping school from the Education Code and allow school districts to find a truancy reduction method that works best for them.

Dallas and Fort Bend counties each have established a “truancy court,” a specialized docket that processes only kids who skip school. While the numbers seem to show the courts’ efficacy in reducing dropouts, credit belongs more to the specialized retention programs that judges are ordering truants to attend. The current process that forces children into these programs serves only to saddle these youngsters with a criminal record for minor misbehavior.

The case for treatment in domestic violence cases

Dallas Judge Roberto Cañas authored an op ed in the Morning News (Oct. 26) on family violence prevention, calling for expanded use of treatment programs for abusers in lieu of incarceration. Here's a notable excerpt:
No ironclad evidence exists to prove that intervention and prevention classes are the miracle cure for domestic violence. But treatment can make a difference — and the judicial system would be smart to require this rehab of as many offenders as possible.

A new study by the University of Texas at Dallas found that Dallas County abusers who were sent to the classes were less likely to commit another act of domestic violence than those sentenced only to time in a cell.

The 2,000-plus misdemeanor cases the UTD team analyzed involved first-time offenders and less-violent crimes. The rehab-over-jail approach seems particularly effective here: Catch the problem — and work to correct it — before behavior is ingrained in the psyche.

Instruction starts with educating the culprit on what actually constitutes abuse as well as the basics of leading a nonviolent life.

That might sound way too elementary to many readers, but remember that the destructive behavior usually grows insidiously — impatience and harsh teasing turn into name calling and cold shouldering, then into denigrating emotional abuse. At some point, the blows turn physical.

Successful anti-abuse education also must persuade the class that violence is a choice. Why would you punch a spouse in anger when you’d never think of cutting loose on your boss or cable guy?

The best way to accept lessons like these is shoulder-to-shoulder with other abusers. Accountability within the group and a commitment to check in with one another over the long haul are key.
Support for anti-battering education doesn’t mean kicking the judicial system out of the picture. Classes work only if partnered with the courts and law enforcement.
Focusing on treatment instead of incarceration may also persuade more victims to cooperate with law enforcement instead of protecting their partners if they think they might get help instead of being jailed as a result of their participation in the case.

Obviously this isn't a prescription for every case - especially the more extreme ones - and there's evidence that some domestic violence treatments aren't necessarily effective. But Judge Cañas is probably right that society's punitive mindset toward abuse prioritizes punishment over behavior modification in a significant number of cases where more could be done to change the family dynamic rather than simply punish, grandstand, and move on.

If Texas (re)diverts state highway fund to roads, what happens to border security at DPS?

Interesting to see that, while on the gubernatorial campaign trail this year, Greg Abbott pledged to seek diversion of state highway fund monies from the Department of Public Safety to road building. According to a recent endorsement in the Odessa American (Oct. 26):
Abbott also recommends amending the Transportation Code to limit State Highway Fund expenditures to intended transportation purposes and amending the Texas Constitution to dedicate more than two-thirds of vehicle sales taxes to the highway fund. As he puts it, his plan is rooted in transparency for the citizenry of the state, and we couldn’t agree more.
Speaker Joe Straus has suggested a similar stratagem, which makes perfect sense from the standpoint of bolstering flagging road infrastructure but which would dramatically undermine the principle source of  increased revenue to DPS over these last years, particularly the half billion-plus the state has spent on redundant border security.

Anyone who's driven Texas highways recently knows the state needs more investment in transportation ASAP, but if the state highway fund is (re)diverted then the Lege will either have to fund DPS activities from some other source or scale back their budget to make the whole thing balance.

Better roads and Texas' border security boondoggle: In the end, legislators can only pick one to fund unless they deign to raise taxes or siphon from the Rainy Day Fund. Either funding option seems viable but both also seem politically unpalatable in the current environment, which could make debates over spending state highway funds particularly vexing next spring.

MORE: Abbott's statements seem to be boxing him more and more into supporting tax hikes to pay for all he's promised. A Houston Chronicle profile declared that Abbott "[s]upports doubling state spending for the Texas Department of Public Safety to add manpower, technology and tools for added surveillance at the Texas-Mexico border" as well as "funding for additional surge-enforcement operations along the border." You can't do that and also redirect the state highway fund away from DPS and back to highways without additional revenue from somewhere, even if "new taxes" don't appear to be part of the soon-to-be-governor's campaign platform.

Sunday, October 26, 2014

Exoneree awarded $2.3 million jury verdict over innocence evidence concealed by prosecutors

Texas Lawyer brings word (Oct. 23) of the latest example of innocence compensation, this time through a federal courtroom instead of the state's innocence compensation law:
A federal judge issued a $2.3 million final judgment on Oct. 15 in favor of Manuel Alvarez, who filed a §1983 municipal liability complaint alleging that the city of Brownsville allowed its jailers to beat him in 2005 when he was 17, and then falsely charged him with assaulting them. Alvarez alleged that the jail concealed from him and his defense lawyers a videotape of the beating.

Luis Avila of Dallas and Eddie Lucio of Brownsville represented Alvarez, who served four years in a state jail for the assault charges before the Texas Court of Criminal Appeals exonerated him in 2010 on the basis of his actual innocence, Lucio said. But Alvarez had a criminal record when the beating took place, Lucio added. That background presented an obstacle but a surmountable one at the jury trial held to decide the damages for municipal liability claim.
An attorney for they city said the will appeal, arguing "that a precedent in the U.S. Court of Appeals for the Fifth Circuit barred Alvarez from claiming a Brady violation, on which he based his complaint, because he had previously pleaded guilty. A Brady violation occurs when prosecutors fail to abide by the U.S. Supreme Court 1963 ruling in Brady v. Maryland and disclose all exculpatory evidence." The story concluded:
Both Avila and Lucio expect the Fifth Circuit, based on the questions of status of Brady rights for defendants who have pleaded guilty, to review the case.

For now, though, the two lawyers are savoring their victory for a client "who was not a model kid," as Avila said, but who also did not deserve to be beaten and then charged for assaulting a jailer while a videotape of his beating remained hidden from his lawyers.

Friday, October 24, 2014

'Evidence of things not seen' and other stories

Here are several items that haven't made it into individual blog posts this week but which deserve Grits readers attention:

Another plea for Max Soffar
At the Texas Tribune, Barry Scheck joined the chorus of voices calling for the governor to pardon Max Soffar before cancer ends his life. See earlier, similar calls from Michael Hall at Texas Monthly and Michael Berryhill here on Grits.

Dallas to test rape kit backlog
Dallas has received a grant to fund analysis of its backlog of rape kit testing.

Transgendered inmate sues over prison rape
In light of Gov. Perry's decision that Texas will not comply with the federal Prison Rape Elimination Act, a lawsuit by a transgendered TDCJ inmate alleging the state failed to protect her from sexual assault potentially takes on added import. To the extent Texas faces consequences for its decision to snub PREA, it will be federal lawsuits like this one that hold TDCJ accountable.

Austin cop fired for retaliating against paramour's husband
Reported the Austin Statesman, "Austin police fired a lieutenant Wednesday after an internal affairs investigation determined he made false reports to have the husband of a woman who was having an affair with him arrested."

'Evidence of things not seen'
Here's an interesting-looking academic article on tunnel vision in innocence cases and the failure to take into account bits of evidence that may not exclude a suspect but fail to align with witness statements or other evidence relied upon for prosecution. It includes a good analysis of the evidence from the Carlos de Luna case out of Corpus Christi in which the state focused on de Luna despite the greater weight of evidence pointing to another man, Carlos Hernandez. Seven pieces of evidence matched de Luna, while seventeen matched Hernandez including the seven the matched de Luna. Grits may have more to say about this after reading it more thoroughly, but I thought I'd pass the link along.

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.