Tuesday, June 28, 2016

Exoneration commission documents

There's a Timothy Cole Exoneration Review Commission meeting today. See the agenda and check out these supporting documents:

Elsa Alcala's voice in the wilderness on Texas' lack of IAC recourse

Like a black-robed, Latina John the Baptist, Texas Court of Criminal Appeals Judge Elsa Alcala has been openly calling out her colleagues and the Legislature for failing to ensure remedies exist for "ineffective assistance of counsel" claims - in other words, when one's lawyer didn't do their job.

In a series of dissenting opinions, including Ex parte Garcia, Ex parte Pointer, and Ex parte McCuin, Alcala lamented the structural reasons why a) defendants cannot raise ineffective assistance claims on direct appeal and b) when they can raise the claim for the first time in a habeas corpus writ, they are not entitled to a lawyer. To Alcala, this creates a Sixth Amendment crisis. Judges Yeary and Keller have  taken on the task of rebutting Alcala on behalf of a narrow majority. (In this instance, Judge David Newell sided with the government-always-wins bloc on the court, giving them five votes.) TDCAA's John Stride described the situation as:
a dispute among the members of the court over how it should deal with applications for post-conviction writs of habeas corpus filed by pro se defendants. Such applications are often incorrectly filed and could be easily corrected by appointed habeas counsel—hence, the dispute that can be more fully explored in several opinions authored by Judge Yeary on one side of the dispute and several opinions authored by Judge Alcala on the other side. The dispute is actually quite compelling but probably only to post-conviction attorneys. For the moment, Judge Yeary’s position is largely prevailing, but stay tuned to the next session of the Texas Legislature to see if that changes.
Grits thinks TDCAA underestimates whether this issue is compelling "only to post-conviction attorneys." In essence, Alcala is calling out a fundamental flaw in Texas' provision of Sixth Amendment right-to-counsel for every indigent defendant under its yoke. Thanks to crises in Louisiana and elsewhere, most of the recent attention paid to indigent defense and public defender offices has related to funding for those services. But ensuring quality is at least as important, and Alcala is complaining that poor defendants whose appointed lawyer did a crappy job effectively have no recourse. She's 100% right.

Here's what's going on: The CCA appoints counsel upon request to inmates filing habeas writs only after the court has voted to grant them a hearing at the trial court level. But defendants have no right to counsel to help write and file the writs in which they seek to convince the CCA to grant such a hearing. So inmates frequently file "pro se" writs with the court, meaning they write them themselves, often by hand on lined yellow legal pads, with no attorney to help them. The court receives thousands such application every year and, as Stride noted, they "are often incorrectly filed and could be easily corrected by appointed habeas counsel." But the CCA majority fears that would open up floodgates and boost their workload.

Who knows, maybe that's a legitimate fear? Texas courts have tolerated (encouraged?) a lot of crappy defense lawyering for quite a while. If all those cases were properly vetted, that would indeed boost their workload in the near term. OTOH, their workload may reduce to the extent that the work goes faster when writs filed by lawyers are "clean," from a legal perspective, and in a word-processed brief format with footnotes instead of a handwritten hodge-podge

Regardless, seriously incompetent lawyering deserves redress. Texas state Rep. Gene Wu, an attorney and former Harris County prosecutor, said to me once that engineers, doctors and lawyers are three categories of professionals who can seriously hurt someone, or even a lot of someones, if they don't do a good job. That observation applies in spades to indigent defense.

There's a sense in which this subject tangentially relates to the funding issues being discussed nationally. In Texas, lawyers making their living representing indigent clients must take excessive caseloads (see here and here) to earn enough to cover their student loan debt, an office, and basic living expenses. Most counties don't have public defender offices and the ones which exist handle a fraction of the total volume of indigent cases. And so most counties underpay appointed lawyers, then they get what they pay for.

Judge Alcala is watching all this occur from the very back end, after the guy with a colorable claim that his lawyer was incompetent has been finally convicted and is sitting in prison with no more appeals available to him. He scrawls out his plea for justice on that yellow legal pad and she can tell that, if the guy had an attorney and had filed the writ correctly, the facts would justify granting the writ. But the inmate wasn't a lawyer so he screwed something up, didn't make all the right arguments, didn't file it right, or on time, or whatever, and the writs are denied without ever considering the merits. Worse, the CCA rules bar the defendant from filing "subsequent writs" on the same topic, so in most cases the fellow's just screwed.

Federal courts have already recognized this problem and now allow Texas inmates to bypass the CCA regarding habeas writs alleging ineffective assistance of counsel. As Judge Alcala wrote in Ex parte Garcia, "Given its recognition that an initial state habeas proceeding undertaken without effective assistance of counsel would effectively deprive Texas defendants of any meaningful review of their ineffective assistance claims, the Supreme Court crafted a federal equitable remedy that would permit such claims to be raised and adjudicated for the first time on federal habeas review." In other words, right now defendants can bypass the CCA in ineffective assistance claims and appeal directly to the federal courts. Alcala's right to take that as a snub - an indication federal courts don't think Texas can handle its business. What's unfortunate is that only she and Judge Johnson, who is about to leave, seem to think the CCA should rectify the problem.

Calling out like a voice in the wilderness, Judge Alcala has boldly and accurately insisted that this stance leaves defendants with no redress at all in Texas courts when their appointed counsel performed incompetently. As with any latter-day John the Baptist, she gets little contemporary credit for this stance. And there are those who would see her head on a platter (picturing Michael Keasler as Salomé's mom). But until that day, she seems intent on speaking her truth and standing up for fairness on these questions, even on occasions when she must stand alone. Bully for her.

Monday, June 27, 2016

New White Paper on pretrial release and bail reform in Texas

Under my (Michele Deitch's) supervision, graduate students at the LBJ School of Public Affairs wrote a series of policy briefs in response to issues raised at the University of Houston's Symposium on Police, Jails, and Vulnerable People held this past January and announced previously on this blog. These briefs provide useful background information and practical policy recommendations for Texas to consider adopting in the 2017 Legislative Session.

The first policy brief we've released, Risk Not Resources- Improving the Pretrial Release Process in Texas, is related to pretrial practices in Texas. It looks like pretrial reform has some traction at the Lege and we expect this brief to be a welcome resource for people interested in thinking about what steps need to be taken to improve our ineffective bail system.

A few highlights from the report:

1. The only way to have a fair pretrial system is to evaluate people based on their risk of missing court or getting re-arrested. There are modern risk assessments (most notably, the PSA-Court developed by the Arnold Foundation, which Harris County will begin using shortly) that can be performed quickly and inexpensively because they do not require a defendant interview, relying instead on information that booking officers should be looking up in any event.

2. Using risk assessment and releasing low-risk people is cheaper and more effective than the current bail system. Statistically, most people are likely to come back to court without the imposition of any conditions or the requirement of collateral. Counties spend millions of dollars every year locking up poor, low-risk people who are legally innocent and unlikely to cause any problems before trial. If we released those individuals and redirected a portion of those savings toward evaluating defendants' risk on the front-end and supervising the higher-risk folks who were released, we could decrease the total bill for the county without any negative public safety implications.

3. Texas needs a presumption of release with the least-restrictive conditions necessary to ensure the safety of the community and the defendant's return to court. This is the logical progression of the state's right to bail - we need to remember that bail was originally intended as a way to release people before trial, and our statutes should reflect that. Bail schedules requiring every arrested person to pay a cash bond to be released for even the most minor offenses are ineffective, unfair, and in the words of the US Department of Justice, "bad public policy."

A more functional pretrial release system will help prevent our jails from housing defendants who don't need to be there, make sure that defendants who pose a high risk to the community are either properly supervised or detained, reduce overcrowding, and save the county money.  But of course, there are other issues to be addressed as well if we want our pretrial system to be safer, fairer, and more effective.  Stay tuned for future policy briefs regarding diversion of people with mental health issues, jail safety and suicide prevention, and the need for improved oversight of Texas jails.

You can read Risk, Not Resources:  Improving the Pretrial Release Process in Texas, written by LBJ School graduate students Nathan Fennell and Meridith Prescott, here.

Saturday, June 25, 2016

TPPF's Derek Cohen on criminal penalty enhancements

Our pal Derek Cohen at the Texas Public Policy Foundation's Center for Effective Justice this week published a new public policy brief this week titled, "Texas' Mandatory Sentencing Enhancements." Grits sat down with Derek on Thursday to talk to him about his analysis. Here are a few excerpts from our conversation.

Thursday, June 23, 2016

Lying cops, ticket quotas, junk science and Naloxone

Here are a few odds and ends which merit Grits readers attention even if I don't have time to blow each of them out into individual posts.

Naloxone available in Texas this week
The Texas Legislature last year approved widespread access to Naloxone, a drug which helps quell heroin/opiod overdoses, and it will be available to the public for the first time this week, reported the Texas Tribune. Readers may recall that Gov. Greg Abbott vetoed related "Good Samaritan" legislation that would protect overdose witnesses and victims who request emergency medical assistance. Naloxone will save lives, but even more addicts would survive overdoses if it weren't for Abbott's veto.

Breath test analyst fired for incompetence
A breath test analyst in League City performed such shoddy work that all of the DWI convictions she worked on for numerous agencies may be called into question, reported KTRK in Houston:
Documents from an Internal Affairs investigation obtained by Eyewitness News show [Nellie] Martinez's supervisors determined her work is so bad, it was called a "ticking time bomb." The documents said the quality of her work could jeopardize nine police agencies in four different counties and that it could "jeopardize the integrity of the entire program."

The reason the potential impact is so large is because several area police departments contract with League City for its breath alcohol work. They include Seabrook, Pearland, Webster, Texas City, South Houston, Galveston County Sheriff's Office, Friendswood, and of course, League City itself.

"The convictions that were gained, any type of trials that were had that had a breath test that involved one of her machines is now called into question," said [attorney Dan] Krieger.

The Galveston County District Attorney's Office confirmed to Eyewitness News that it has sent out Brady letters to attorneys in all pending DWI cases worked on by Martinez. The Harris County DA's office says it is aware of the issue and looking into it now.
More than one way to skin a county judge
One so seldom sees prosecutors go after open records violations that Smith County Judge Joel Baker's arrest barely passes the smell test. Really, he's being prosecuted because they can't force his resignation over an embarrassing sexting scandal, so his enemies are coming at him from another direction. A local Tea Party group, Grassroots America, is leading the push for his ouster.

Lies, damn lies, and ticket quotas in Arlington
Arlington police officers are either lying about the existence of traffic ticket quotas or the number of tickets they're writing, the Fort Worth Star-Telegram reported and opined. Either way, said the paper's editorial board, "here’s the problem: It sounds like these officers are saying they lied about the traffic stops because they felt they had to meet a quota. Isn’t that still a lie?" And once you have officers who will lie regarding criminal allegations against motorists, can the department really afford to keep them on the force?

'Texas' mandatory sentencing enhancements'
The Texas Public Policy Foundation has a new issue brief out on sentencing enhancements in Texas criminal law. Grits this morning interviewed author Derek Cohen about the report and soon will post our conversation online.

Junk science writ vs. 'shaken baby sydrome'
Texas' junk science writ, enacted in 2013 and improved in 2015, is being used to challenge "shaken baby syndrome" at the Texas Court of Criminal Appeals.

The Uniform
This essay contains some interesting and little-known history regarding police uniforms.

Read more here: http://www.star-telegram.com/opinion/editorials/article84927947.html#storylink=cpy"

Fourth Amendment body blows

The Fourth Amendment has suffered some major recent body blows. We've already discussed how the Supreme Court of Texas okayed cops performing illegal searches in pursuit of asset forfeiture seizures. Now the US Supreme Court in a case styled Utah v. Strieff has essentially said the Fourth Amendment does not protect people who have outstanding warrants for minor traffic offenses. At SCOTUSBlog, Orin Kerr wrote that,
Justice Kagan is right in her dissent that the majority’s approach practically invites police officers to make illegal stops. If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime. The police academies won’t teach officers to violate the law, of course. At the margins, though, officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop. If in doubt, make the stop.
Read in particular Part IV of Justice Sonia Sotomayor's dissent, beginning at the bottom of p. 22 of the pdf. She lays out broader concerns about overarching police power that the narrow case decision didn't reach but which merit serious attention. That remarkable section of her opinion concluded: "We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."

Greater scrutiny coming for Texas police shootings

The stories of Texans shot by police will receive a lot more scrutiny soon.

The Texas Tribune has launched a crowdfunding campaign to pay for "a massive open records effort that will track fatal and nonfatal police shootings from 2010 to 2015 in Texas’ largest cities. Through this investigative project, we want to provide context on when and why officers use lethal force. We're gaining access to records from police departments across Texas; we'll supplement that information with original reporting and explore trends that emerge in these shootings." If you're able, give them some love. That's a worthwhile project.

Notably, they plan to include "nonfatal police shootings" which were not compiled anywhere before September 2015. It's hard to see how that list could ever be comprehensive. Those records simply were not kept. (Fatal shootings were recorded in the Attorney General's death in custody database.) But they'll find enough through open records requests to paint a representative picture.

In addition, our pal Eva Ruth Moravec revealed recently that she'll be "undertaking a year-long reporting project thanks to a grant that will allow me to write while I continue chipping away at my Master’s degree. In general, I’ll be researching and reporting on officer-involved shootings in the Lone Star State – but I’ll explain more in detail later." She'll be taking a deep dive into individual police shooting cases around the state. I'm excited about her project, though I'll leave it to her to announce the details.

These two journalism initiatives promise to focus a lot more attention on the issues surrounding police shootings in the coming year - a happy and welcome side effect of the new reports being compiled by Amanda Woog that the Texas Legislature mandated last session.

On a related note, I recently ran across this Prawfsblawg post from our man John Pfaff last year suggesting a novel approach to prosecuting police misconduct: Allowing public defender offices to prosecute the cases. There's a perspective from which that makes a lot of sense. One is reminded of practices in the UK where attorneys may serve as either a prosecutor or  defense attorney in any given case and those categories are not such narrow specializations. Ex-prosecutors become defense attorneys all the time and vice versa; a lawyers skills are fungible in that regard. Of course, we don't have PD offices in most of Texas, using appointed counsel in most counties. But it was an interesting idea.

Here in Texas, we've seen more traditional suggestions for having such cases prosecuted by special prosecutors or a division at the AG, though those bills never got out of committee in the 2015 session. Paul Cassell has suggested AG's could take on those responsibilities of their own accord, but in Texas they can only step in to prosecute a case if the local DA invites them. And on police shootings and/or misconduct cases, none of them do.

Wednesday, June 22, 2016

Cameras, cameras everywhere, but who can see the footage?

Cameras are changing 21st century policing and debates this week in Austin typify two examples how:

1. Check out an article by Tony Plohetski at the Austin Statesman on the running war of words and video between the Austin PD and the Peaceful Streets Project, a grassroots group which films APD officers mostly on Sixth Street and has sometimes caught police officers engaging in disreputable behavior. Grits approves of filming cops - some of my earliest allies in the criminal justice reform movement were young folks in a now-defunct group called Cop Watch. But I don't understand why some Peaceful Streets leaders insist on treating police with profanity-laced hostility. It's unnecessary and discredits what's otherwise important and difficult work.

2. On Thursday, the Austin City Council will consider whether to give Taser an eight-figure contract for body cameras and related data services - most of the cost for the latter, as is their business model. On her blog, Debbie Russell has been all over the dubious economics behind the Taser deal. APD wants to move forward with the contract without having specified in their written policy how and when the public can access video. Check out the Open Austin website advocating for transparency and a press release from advocacy groups describing how little APD has budged on key transparency topics.

Grits considers cheap digital cameras a great boon to police accountability, with the caveat that they also pose risks as a means of mass surveillance, a potential threat to crime victims' privacy (and for that matter, police officers'), and risk other abuses of the technology which we may not be able to predict right now. My hope is that, in the medium to long run, bodycams, dashcams, recorded interrogations, and the rise of citizen cellphone cams will collectively serve to regularize and professionalize police interactions with the public.

But that will only happen to the extent the footage is used to hold officers accountable. If they can keep bodycam footage secret, as APD would prefer, they can conceal their dirty laundry. Knowing about problems you will not fix is NOT the point of this multi-million dollar camera investment! And anyway, in this day and age, cops can't shut down the public's cameras. They're quite literally everywhere.

Federal judge orders Pack Unit to supply un-contaminated water

This news could bump the Pack Unit up on the list of the most likely next TDCJ units the Legislature may consider closing. From the Houston Chronicle (June 21):
A federal judge in Houston has ordered the Texas prison system to provide safe drinking water to inmates at the Pack Unit in Navasota, saying the unit's arsenic-laden well water "violates contemporary standards of decency."

U.S. District Judge Keith Ellison said the Wallace Pack Unit, a low security facility in Grimes County that holds elderly and sick inmates, has 15 days to replace its water supply.

The emergency motion to replace the drinking water was filed by a group of inmates suing the state on the grounds that the lack of air conditioning during the hot summer months is a form of "cruel and unusual punishment."

The Pack Unit houses mostly elderly, ill and disabled inmates who may take medications that make them especially vulnerable to heat-related illness.

The Texas Department of Criminal Justice plans to appeal the ruling, according to a spokesman.
TDCJ before now had refused to pay to extend a water line from the city of Navasota to the Pack unit, preferring to use well water they knew was contaminated because of the lower cost. So good for Judge Ellison. That kind of cynical cost-benefit analysis devaluing inmates' lives and health shouldn't be condoned.

The next cost-benefit judgment: Does it make more financial sense to pay to extend a water line from the city to the prison, or is there sufficient capacity within TDCJ to move those inmates elsewhere and shutter it? And what can be done, one wonders, in 15 days? The judge's ruling stemmed from a subsidiary claim in ongoing litigation over excessive heat in the un-air conditioned unit in Grimes County, just west of Huntsville.

MORE: From the Courthouse News Service.

Sunday, June 19, 2016

Beyond (narrow, politicized) explanations for the 2015 homicide spike

Debates over crime-stat interpretation continue, with the publication last week of this NIJ-funded analysis from an academic, Richard Rosenfeld, "Documenting and Explaining the 2015 Homicide Rise," suggesting "Research Directions." For the record, the author only succeeded at the first half of the title. The paper documents the 2015 homicide rise, but scarcely explains it.

(See a good analysis of the document from CityLab. On Twitter, John Pfaff provided this helpful historical national murder data. For those who want more detail, use this tool to analyze crime rates for all types of offenses over time.)

Like the Brennan Center before him, Rosenfeld finds that the homicide rise is real, but confined to a handful of cities (Houston made the list of ten cities with significant homicide increases last year) and within those cities mainly among black folk.

But he then does something Grits found odd, postulating three "plausible explanations" for the 2015 homicide rise. Those were 1) expansion of the heroin market, 2) the growing number of released prisoners thanks to recent reductions in state prison populations, and 3) the Ferguson Effect (of all things). Why just those three? Aren't there more "plausible" explanations?

Not increased gun sales after every mass shooting? Not family violence related to economic distress? Not gang violence related to cartel turf wars or changes in marijuana markets? We're sure it's not that heightened border enforcement makes trafficking in persons and drugs more dangerous and expensive? Or that the real reasons might relate to specific crime patterns in the handful of cities driving the statistical spike? Not that murder rates are at 50 year lows and some cities are regressing to a mean? I'd favor any of those suggestions over Rosenfeld's second and third hypotheses!

As far as correlation-mistaken-for-causation goes, you could just as spuriously easily blame the homicide spike on anger-mongering in the GOP primary and rise of the Donald Trump campaign as postulate a "Ferguson effect"!

Of Rosenfeld's three suggestions, the heroin-market explanation is plausible. But a lot of that conflates with prescription opiod abuse and the delivery vehicles have taken on different vectors from, say, crack cocaine in the '80s. Besides, as Rosenfeld himself notes, the heroin trade began expansion long before this recent homicide spike.

Meanwhile, recent incarceration reductions so far have been quite modest and focused almost entirely on diverting low-level, nonviolent offenders from prison on the front end. So releasing more prisoners seems like an odd thing to blame. As a practical matter, mass incarceration requires mass prisoner releases for reasons which have nothing to do with do-gooder reform agendas.

Consider: Texas releases more than 70,000 inmates per year these days, while in 1990 Texas incarcerated around 40,000 state inmates en toto. TDCJ must release that many every year or the system would become overcrowded and overrun. The Legislature has made clear it doesn't want to pay more to expand a system which already gobbles up nearly $7 billion of the biennial budget.

A system where people go to prison and remain locked up forever is a punitive fantasy, not a realistic expectation of government's capacity nor even, really, an expression of justice. Texas releases five or six thousand of prisoners every month and the crime rate is as low as it's been since the '60s.

Finally, though apparently there's some evidence of police malingering/blue flu as a union tactic in Chicago, Grits has always found Heather MacDonald's Ferguson Effect hypothesis strained and a bit odd. I am surprised to see it portrayed as one of three "plausible" hypotheses, even though Rosenfeld concluded there's no way to confirm it based on currently available evidence. In fact, the point of the document was to suggest research stratagems to determine whether or not the Ferguson-effect explanation is viable.

To me, it's insulting to police officers and their professionalism to suggest that they're all layabouts and laggards who would fail to do their jobs because some protester insulted them or somebody said something mean about cops in the newspaper or comment section. Grits considers the way MacDonald and the police unions have parlayed such a low assessment of police officers' characters into a supposedly pro-police platform to be a quite-amazing parlor trick. It acknowledges and embraces the most cynical assessment of police critics and reframes true, legitimate criticisms as a badge of honor. Well played. Hard to believe that worked. The problem is, as a fundamentally untrue assessment, the frame cannot ultimately hold. Still, it's an impressive public relations ploy.

Wednesday, June 15, 2016

No prosecution for SA cop who assaulted DWI suspect

Grits sent off an open record request this morning to the San Antonio PD about this case in which, "A veteran San Antonio Police officer was suspended 30 days earlier this year after he admitted to punching a drunk driving suspect eight times in the head while trying to get him to comply with a blood draw." Notably, "The district attorney's office declined to pursue a charge against [the suspect] for resisting arrest." If there turns out to be footage, perhaps I'll compile another short web video.

One wonders, beyond the thirty-day suspension from his job - which Zimmerman covered using "accrued holiday time," so he really never missed a day - why this officer wasn't subjected to criminal charges for assaulting the suspect, just as you or I would be if we hit someone in the head eight times in the central magistrate's office at the jail.?

See related, recent Grits posts:

Tuesday, June 14, 2016

On the limits of Politifact, crime wave hype, police pension politics, and other stories

Here are a few odds and ends which merit Grits readers attention even if they haven't made it into independent posts:

Fact: Harris County a major driver of mass incarceration
Grits can't stand Politifact. As I've often said, the only labels they apply which have any validity are "True" or "Pants on Fire." Anything in between is a judgment call that they generally get wrong, usually thanks to a level of pedantry that contributes scarce little to real-world discussions. Take, for example, their fact check, "Sen. Ellis overstates county's incarceration rate." In essence, they're so busy fact checking they ignore the truth. Ellis accused Harris County of "having one of the highest jailing and incarceration rates in the United States and the world," comparing Harris to other large urban jurisdictions. Politifact found that "false" because Harris ranked only 138 among Texas counties for local incarceration rates in the county jail. But comparing Harris to essentially empty, rural jurisdictions like Kenedy County, as writer Fauzeya Rahman ridiculously does in the article, hardly withstands the laugh-test. Grits replied thusly in the comments: "Texas is the global epicenter of mass incarceration. The US has most prisoners of any nation, TX has most of any state, and Harris Co. is the biggest driver, by far, of state incarceration trends. Comparing [Harris] to Kenedy Co. is a silly red herring. It's only meaningful to compare them to the big ones, as [Ellis staffer David] Edmonson said quite forthrightly in his original email. Nitpick all you want, but as a practical matter, Ellis was right and this column was pretty worthless."

Ed. note: Not long after I posted this, Politifact took the post down. Maybe they're reconsidering their conclusion.

Williamson County picks crappy DAs
Williamson County leaders are suing to oust District Attorney Jana Duty before she formally leaves office next January. I understand they're upset, but they weren't even that anxious to run John Bradley out of town. They already beat her in the election; she's on her way out. I'm not sure I see the strategic benefit of this particular ploy compared to waiting till the end of the year for her to be gone. The new guy has a big job in front of him to restore credibility to the office. Its reputation and legacy has been pretty awful for quite a long time now.

County confronts overincarceration costs
Wichita County is choosing to renovate its aging jail facilities instead of build new ones, and may hire a consulting firm to assess the situation. but nobody yet locally is talking about addressing the underlying problem: Excessive pretrial detention and an above-average incarceration rate compared to the rest of the state.

Crime wave hype subsiding as data rolls in
Is anyone surprised that the hype over a violent crime wave in Dallas is already subsiding? Looking at a tiny sliver of data, the Dallas News (shilling for local police unions) blasted DPD Chief David Brown earlier this year for a supposed 75% spike in murders. Now that more data is in, the year-to-date number is 40% more than 2015, but there's a decent chance by the end of the year any increase will appear relatively modest, in the scheme of things. The truth is that crime has declined so low that any increase may appear large. In fact, increases will always sound larger than declines. E.g., if murders declined from 300 to 100 in a year, that'd be a 66% decrease. If the next year they bumped back up to 300, that'd be a 200% increase, even though the delta both years was the same. That's what's happening in Dallas. Crime is so low, and has been declining for so long, that reporters apparently have no context to provide for even a modest upward blip, which until much more time passes is the only valid way one can describe the News' supposed "violent crime wave" in Dallas.

Pay attention to police pensions
Grits has not paid enough attention over the years to police pension issues, but they're a mess. Lisa Falkenbeg offered telling commentary on the situation in Houston. Eventually, they're going to have to move from defined benefit plans to defined contribution like nearly everyone else in America, and when they do the unions are going to throw an epic hissy fit. CORRECTION: A commenter points out Falkenberg was talking about municpal pensions, not police. Grits regrets the error.

Metadata and the third-party doctrine
Flagging this academic paper on metadata and the third-party doctrine for my own reading later. Need to bone up before taking another stab in 2017 at convincing to get the Lege to require a warrant for cell-phone location data.

The conservative case for federal sentencing reform
Federal sentencing reform appears increasingly unlikely this year, but here's the conservative case for going ahead and pushing it through.

'The siege downstairs': Data needed to regulate SWAT overuse

The Austin Statesman's Tony Plohetski had a great story over the weekend about the use of no-knock raids by the Austin PD SWAT team. The story provides a compelling example of SWAT excesses, but we'll need for SWAT raids the kind of data Texas has begun to require on police shootings before it's possible to make valid, systemic critiques of SWAT or propose sweeping solutions.

Plohetski features a case of a raid on the home of a teen living with his parents. The kid was reportedly selling pot and had legally purchased an AK-47 for protection after an attempted robbery at the house. Reported Plohetski:
The teen, who later told detectives that he didn’t know the intruders were police officers and feared for the safety of himself and his family, began shooting with an AK-47, striking an officer in the leg. The family’s dog was killed in the carnage.

And, in the end, the massive operation yielded minimal reward: Officers recovered 1.2 ounces of marijuana. ...
The incident raises questions about the use of risky military-style tactics by municipal police, occasionally for lower-level offenses. The issue has been part of a national policing conversation for several years, but the case illustrates how Austin police deploy SWAT resources in what some critics say is a troubling trend.

A little more than once a week, on average, generally under the cover of darkness, heavily armed Austin officers force their way into a home in search of evidence to help build cases. The majority of such cases involve suspicion of narcotics.
Grits has given these questions some thought and research over the years and at every turn one immediately runs into the same problem. Anecdotes are easy to find but there's almost no data available to analyze SWAT-related issues. Radley Balko made the most valiant effort to date. But at the end of  the day, you can't manage what you can't measure, and policymakers have no metrics for confronting these sorts of police militarization issues.

Grits would like to see reporting by police agencies regarding SWAT deployments the same way the Texas Lege last year required them to report police shooting episodes to the Attorney General. Make me Philosopher King and for every SWAT deployment, police would be required to report the reason for deploying a SWAT team rather than another police engagement strategy, the underlying alleged offense, the number of officers deployed, whether the suspect was present when the raid occurred, any special equipment deployed including flash-bangs, whether there was damaged property due to the use of SWAT equipment (preferably with photos), whether use of force was used, whether contraband was confiscated, and whether there were any arrests. That would go a long way toward remedying the present information imbalance.

Once data collection has been in place for a time, we'd have a much better grasp on the scope of SWAT-related problems. Right now, the debate tends to grope around in the dark. If you're anti-SWAT you're focused on overkill episodes like the one in the paper; pro-SWAT interests, by contrast, are busy touting the response to the Orlando shootings. But it's not an either-or issue. We need SWAT teams in larger jurisdictions for extraordinary episodes, but there's also a legitimate need to limit mission creep and prevent their use in situations where lesser levels of force would suffice.

One other idea to which Grits keeps coming back: Perhaps judges should provide higher levels of oversight for SWAT warrants? Right now, a judge issues a warrant and cops decide whether to use SWAT, whether to use no-knock tactics, etc.. Why not make them justify using those tactics to the judge? It'd be a small thing, but perhaps it would limit SWAT use in marginal cases like the one portrayed in the Statesman.

There are surely other reforms needed for unfettered and unregulated SWAT programs - and I hope readers will suggest some in the comments - but without more data, the debate remains frustratingly imprecise and one-sided. That's probably the first thing to fix if we truly want to get a handle on the problem.

Monday, June 13, 2016

Austin PD crime lab DNA section screwed the pooch

Austin has closed the DNA division of its crime lab because of problems with their processes testing DNA mixtures dating to 2010, reported the Austin Statesman:
The Austin Police Department has temporarily suspended operations at its DNA lab because of concerns raised by the Texas Forensic Science Commission, a lack of properly trained supervision and the need to allow staff to learn a new federally required way of verifying evidence, the American-Statesman and KVUE-TV have learned.
The decision means that hundreds of DNA samples — often crucial evidence in crimes such as homicides and sexual assaults — will either be shipped to the Texas Department of Public Safety lab or to private labs for analysis, possibly delaying the outcome of pending cases in already backlogged Travis County criminal courts.
The article declared that the closure "comes at a time when DNA labs nationally are adapting to new federally required procedures." However, when I emailed the FSC's Lynn Garcia, she said she's "not sure what federal guidelines they are referring to." Really APD just screwed up the science, using a method which is "neither scientifically valid nor supported by the forensic DNA community," according to the six-page letter from the FSC to Austin PD critiquing their methods, which Garcia provided to your correspondent.

Embarrassingly, according to the letter, the main problem was that lab personnel didn't understand past federal directives: "Technical Leaders (TLs) and senior analysts in the APD DNA Lab appear to have misunderstood language from the Scientific Working Group on DNA Analysis Methods (SWGDAM) Interpretation Guidelines for Autosomal STR Typing by Forensic DNA Testing Laboratories ... and from Dr. John M. Butler's textbook, 'Advanced Topics in Foensic DNA Typing: Methodology.'"

"Of greater concern, the analysts themselves were aware the [method] was ineffective because they observed ... [problems] in their own casework" and did nothing. They cherrypicked data, choosing which loci to compare based on whichever ones show up in the sample. "The appropriate approach is to decide which locus (or lici) should be used first ... as indicated by the overall analysis of the evidentiary sample, not on which alleles are present or absent based on the victim or suspect known profiles."

The FSC identified at least one case where contamination made APD's results invalid, as confirmed later by a private lab. They also found ten cases of contaminated reagents.

Worryingly, the problems were not revealed by ASCLD/LAB assessments, even though deficiencies were evident in the data they were given.
These observations raise legitimate questions regarding the limits of accreditation and the consistency of assessor teams. Specifically,: (a) Are the scope and limitations of accreditation well understood by the criminal justice community? (b) Do assessors consistently consider whether the laboratory's protocols and underlying validation based on sound scientific principles or do they limit their review solely to determining whether the laboratory has a protocol in place that it follows? (c) Should assessors re-review validation data from prior years considering that validation studies are relied upon to build subsequent protocols?
Most of that detail wasn't included in the Statesman story.

Concluded the paper, "the Austin Police Department’s crime lab, which will have to recalculate statistics on about half of the 1,297 Travis County cases identified so far, is still validating new software and updating its protocols. Meanwhile, the lab’s backlog of cases awaiting DNA analysis has risen to about 1,300, the most in the past five years."

It's a mess, but it's not that different than what most other crime labs in the state are going through, except most of them didn't shut down operations until their staff are retrained. After all, the errors relate only to mixtures. There are still quite a few cases, including most rape kits, where there is only one unknown sample. That part Grits finds odd, but I'm glad they're belatedly getting their act together on this topic.

MORE: From Forensic magazine.

See prior, related Grits posts:

Bail bondsmen aggressively fight forfeitures

One of the dirty little secrets about the Texas bail bond industry is that loopholes exist by which they routinely get out of paying bond money they owe when defendants skip town. Though you'll hear bail industry folks say the system works well because it privatizes the costs of pretrial monitoring, that's not entirely accurate. Really it privatizes revenue, but quite often it socializes costs. As a practical matter, by far most defendants who skip and are later recaptured are arrested by law enforcement, not bounty hunters. If the cops don't catch bail skips, generally nobody does. Take, for example, this case out of Edinburg, reported by the McAllen Monitor (June 7):
It has been more than three years since Omar Guerrero failed to appear in District Judge Aida Salinas Flores’ courtroom for his scheduled arraignment in connection with a second-degree felony drug charge.

Since then, flawed paperwork and other court delays caused the subsequent bond forfeiture tied to Guerrero’s criminal case to go uncollected and led to the state, who discovered the flawed paperwork just last month despite having held the case for three years, to ask Salinas Flores at the last hearing to restart the process all over again.
Finally, three years after the defendant's initial flight, a judge ordered the $1 million bond forfeited earlier this month. But an attorney for the bail companies will seek to secure a "reduced bond amount," the paper reported. They plan to appeal the bond amount and the article offered a rare window into the process by which bail firms wriggle out of bonds:
Guerra believes ultimately his clients, and Corpus, will be exonerated from the bond.

“While the state has obtained a new judgment NISI today, we are still aggressively fighting the initial bond forfeiture case and any future requests by the state,” Guerra said. “Our position is still that the state should not collect on either the initial judgment NISI or the new judgment NISI they obtained today.”

Judgment Nisi is a judgment that is not final or absolute. A judgment nisi is an intermediate judgment which will become final unless a party appeals or formally requests the court to set it aside.
Hidalgo County Assistant District Attorney Isaac Sulemana after the hearing said the next hearing will officially begin the forfeiture portion of the underlying criminal case.

“We’re going to be filing the written documents of the judgment NISI at which point we will begin the discovery process and the judge will set it for an actual forfeiture setting,” Sulemana said.
Salinas Flores did not set a date for the next hearing but it is expected to be held in the next 30 days.
These companies were happy to take money/security up front to issue the bond. But when asked to pay up, there's a phalanx of attorneys ready to challenge the debt. And often they win.

Friday, June 10, 2016

SCOTX: Illegal searches okay in asset forfeiture cases

Here's more fuel for the fire over policing for profit:  The Texas Supreme Court today ruled that law enforcement can seize assets even when police officers violated the law and conducted an illegal search. See the opinion. In the case, police found drugs as a result of an illegal search; the criminal case was thrown out but prosecutors kept appealing on the forfeiture case, hoping to take ownership of the defendant's Lincoln Navigator.

The intermediate appellate court had ruled that the Code of Criminal Procedure "precludes the state from initiating a civil-forfeiture proceeding based on an illegal search." SCOTX, though, ruled that courts may impose no sanction on law enforcement for illegal searches in civil proceedings, holding for the first time that the exclusionary rule does not apply in these cases.

SCOTX decided that the purpose of the exclusionary rule is to punish law enforcement misbehavior as a deterrent and judged cops had been punished enough by throwing out the criminal case. They shouldn't be doubly punished, according to this reasoning, by being disallowed from seizing the defendant's assets.

Can you believe these judges are supposedly conservatives? Hard to imagine a less respectful stance toward the constitution and property rights, much less a more explicit abrogation of limited government principles.

MORE: See coverage from the Austin Statesman.

AND MORE: From the Fort Worth Star-Telegram, "Policing for cash erodes the public trust, insider says."

Thursday, June 09, 2016

An unnecessary death: Disabled vet killed by vehicle extraction technique

Grits has been spending  time lately learning to edit video and, for practice, put together this little 2.5 minute segment on the death of Slade Sullivan in 2014 at the hands of the Round Rock PD, mainly because the missus had recently acquired footage and related documents under the Public Information Act. Amanda Woog narrated the piece.

Sullivan, a disabled veteran, was subjected to a "double arm bar takedown" face down from his truck to the pavement, breaking his back in multiple places. He was paralyzed and ultimately died from his injuries five months after the incident. Check out this short video Grits prepared about the episode.


The Austin Chronicle reported that "Sullivan's death highlights how an officer's cavalier use of force can turn fatal when used on a person with health problems." The Statesman had earlier published an excerpt of the dashcam video.

Here's a story from the Killeen Daily Herald about the episode and a lawsuit Sullivan filed against RRPD before his death. The Killeen paper also reported on his death. In his obituary, it was mentioned that his military service had been cut short by a back injury.

Check out a RRPD police report which indicated that officers were trained in this vehicle extraction technique, referred to in the report as "Points of Domination" training. Points of Domination is a term developed in a military context in Iraq and Afghanistan for clearing buildings in urban warfare settings. The report also indicates that Sullivan told the arresting officer his back was injured before they pulled him from the vehicle.

Here's the autopsy and another report from the Texas Rangers.

This episode was a needless tragedy. Sullivan's death points to how quickly law enforcement tends to resort to violent tactics in situations where deescalation is possible.

Risk assessments, visitation, and imaginary prisons

While I'm preoccupied with other matters, including another small video project to be unveiled soon (the last one has been viewed about 100K times now and received nearly 1,000 Facebook shares), here are a number of items which merit Grits readers' attention:

On the risks of risk assessments
Grits' views on risk assessments are still up in the air, or more specifically, situational. I tend to dislike the idea at sentencing (a lot of "future dangerousness" testimony in capital cases has been pure junk) but mind them less for parole boards, whose members by definition make risk assessments with or without a formal instrument. I also mind the idea less for pretrial assessments, when the alternative is to leave folks sitting in jail. But the critique is that risk assessments are inaccurate and discriminatory, and this blogger did a good job compiling links to stories that call them into question, for those interested. This is an important emerging debate among both advocates and criminal justice professionals; I hope it can be had with a tad less vitriol than has characterized the discussion so far. Folks can disagree in good faith here.

In favor of in-person visitation
Check out a cool interview with our pal Jorge Renaud in a publication called The Establishment on the grassroots pushback against elimination of in-person visitation at prisons and jails.

Offender Orientation manual
A new version of the TDCJ Offender Orientation manual came out in April.

Williamson County DAs keep embarrassing local voters
Between John Bradley and now Jana Duty, who was recently disciplined by the state bar, Williamson County voters sure know how to pick reputable DAs! Local leaders this week held a press conference giving her until "sunset" on Friday to resign, though I'm not sure there is legal leverage to bounce her out. Every Texan above a certain age knows of "sundown towns," of which there used to be a few here, but this is the first time I've heard of such an ultimatum aimed at a sitting elected prosecutor.

Imaginary Prisons
An old college buddy, local architect-turned-furniture-maker Mark Maček, turned me on to Giovanni Battista Piranesi (1720–1778), which led me in turn to this 16-print series of sketches titled "Imaginary Prisons." Awesome.


If you've got a spare $400K or so you could probably buy a copy. I'd like to read the orientation manual for THAT place.

Advocate: Police bodycam prices all over the map, Austin about to overpay

Longtime grassroots advocate Debbie Russell cc'd me on an email to the Austin City Council about the cost of bodycams the city is proposing to purchase from Taser International. The council postponed the decision to consider beefing up the APD policy governing camera use. But Debbie remains focused on the economics of the decision. Here's an excerpt from her letter:
I've been researching what Taser charged other cities for body cams, and we are NOT getting a good deal--in fact, with the additional phones -- I still can't believe this is the best solution: I bet Panasonic's app will work on their current phones (has anyone asked?) -- we are getting seriously ripped off.

The contract comes out to $7,177 per camera. WOW. Ft. Worth paid $3,333 per camera on their 2013 contract; and $6,750 per camera on their 2014 contract (tech prices are supposed to go DOWN, not up - as well as storage - which is built into all the contracts).  San Antonio paid $4,260 per camera. Dallas: $3,700. New Orleans paid $3,333 per camera. Taser's proposal to Houston was for $475 per camera - although they turned it down and went with a more expensive vendor ... 

Taser proposed a $57.6 million contract to Los Angeles for 7000 bodycams; putting it at $8,228 per camera. Negotiations shut down in April of this year because of the sticker shock. It was found that the chief there had ties to Taser (as did the Ft. Worth chief) - reminiscent of days when such ties were exposed when chiefs where selling city councils on the "amazing/must-have" Tasers.

So if we're getting another 2 week delay to work on the policy portion--I hope you'll also use that time to also find out why APD thinks Taser, Int. is so special (other than their 2 full-time lobbyists living in Austin to wine and dine them); why the other 9 vendors were turned down/what their prices were and why the heck we aren't considering going with the state data storage solution - which will save us tons of money. 
In a followup email, Russell noted the Austin City Council has also suggested outfitting officers with smart phones what would work in conduit with the bodycam equipment and Taser's evidence-storage services, calculating that, "if you add in the $5,029,200 for the phones, it actually comes to $10,135 per camera/system." Yowza! Good job, Debbie.

Check out the website from Open Austin promoting an opt-in process for making police bodycam footage public.

Monday, June 06, 2016

Roundup: Buena suerte a Kerry Cook, pretrial detention, user-pay justice and a flooded prison

Lots more has been going on than Grits has had bandwidth to blog about, so let me flag a few items in a roundup format which merit readers' attention:

TDCJ's Terrell Unit, photo via AP.

Saturday, June 04, 2016

SAPD use of force rate increasing

Just as the Texas Lege recognized last session that there needed to be greater transparency surrounding police-involved shootings, use of force reports have long been a murky backwater of seldom-disclosed information that the public seldom sees. In the SA Express News, John Tedesco had a lengthy, anecdote-filled feature on May 28 titled, "Analysis: SAPD officers use force at higher rates against minorities" in which he delved into those reports in SA in great detail Here are some statistical highlights:
From 2010 to 2015, police arrested more than 58,150 Anglo suspects and used force against them 1,175 times. That’s a rate of 20.2 incidents per 1,000 arrests.

For minorities, the rates of force nearly doubled over the same five years.

Police arrested 89,700 Hispanic suspects and used force against them 3,217 times — a rate of 35.9 incidents per 1,000 arrests.

Police arrested 23,045 African-American suspects and used force against them 822 times — a rate of 35.7 incidents per 1,000 arrests.
Overall, use of force increased dramatically at SAPD since 2010. "In raw numbers, incidents of force have increased by nearly 75 percent since 2010, from 735 cases that year to 1,281 in 2015." As demonstrated above, most of that increase involved black or Hispanic suspects. However, according to the department, "the primary reason for that increase ... is that the SAPD broadened the definition of force to include takedown maneuvers, which drastically increased the number of reports." Regrettably, the data was not broken out so that one could judge how much of the increase resulted from the data-definition change. ("Trust us, we're the government.)

Tedesco does inform us that, "The San Antonio Police Department has compiled thousands of “use of force” reports in a database that’s open to the public." I'll post a link if and when I find one, but an excerpt is included in the story. He gave a brief history how those reports became public.
SAPD began requiring officers to fill out “use-of-force” reports in 1998 under the leadership of then-Chief Al Philippus, but the city refused to release the information to the public.

The Express-News sued the city to obtain the records, arguing they fell under the Texas Public Information Act. During a legal battle that lasted years, the city lost at the trial and appellate court levels, and finally released the records in 2002 after the Texas Supreme Court declined to consider the case.

It was the first time the public had access to a repository of every force incident documented at the SAPD. But the reports only offer one side of the story — the Police Department’s.

“When you're using official records to do this, you're kind of at the mercy of how the Police Department codes it,” Terrill said. “They're coding it from an interested-party perspective, right?”

After receiving an updated copy of the database, the Express-News found many of the reports offer only scant or contradictory details about what exactly happened, making it difficult to compare the level of resistance of the suspect to the level of force used by the officer.
Chief William Mcmanus defended his officers against allegations of racial bias, but seemed IMO to protest a bit too much.
“The race or ethnicity of a suspect is not, nor has it ever been, a factor in determining whether to use force or the level of force used,” McManus said in a statement released Friday. “Any suggestion that our highly trained officers are choosing to use force based on any reason other than to protect themselves or others is false and disrespectful to our men and women in uniform.”
Since we know for a fact that some of his "highly trained officers" have chosen to use force for reasons "other than to protect themselves or others," I call BS on that one. It's one thing to push back on the racial angle, but quite another to basically pre-clear every officer in every use of force incident without respect to the details. That's statement is "false" and "disrespectful" to the public whom he's treating in this story like gullible chumps.

For those interested, here's SAPD's use of force policy. And while we're on the topic, here are a few other recent police accountability stories which merit Grits readers' attention:

Friday, June 03, 2016

Convicted by media, exonerated by prosecutors

A case out of Houston gives Grits modest hope that some of the innocence-related criminal justice reforms implemented in recent years are beginning to pay off, not just by creating procedural changes but changing the culture of how police and prosecutors approach evidence. In a horrific case last month, an 11-year old boy was brutally stabbed to death and police arrested the wrong guy. Eventually, charges were dropped after his alibi was confirmed, reported the Houston Chronicle. So in this case, law enforcement did the right thing. The press, though, not so much.

In a May 18 story, the Chron's Dane Schiller reported that, "the 11-year-old was savagely attacked, without apparent provocation, by a man with a history of mental illness" who they identified as Che Lajuan Calhoun. The paper informed readers Calhoun was homeless, though he was staying with his fiance in Pearland the night of the attack. Schiller reported that he had a "string of arrests ... since 2012, for making terroristic threats, assaults, violating a protective order and resisting arrest." A story the next day said neighbors, when told of these arrests (by the reporter), were "wondering how Calhoun built such a long criminal history so short on punishment." 

Schiller also suggested the man suffered from mental illness, but with only the barest of support for the premise: "a judge appointed an attorney with experience at handling mental health issues and ordered mental health records be released from the county about his mental competency, court records show." However, Calhoun apparently was never declared incompetent and it's impossible to know what was in those records.

Even more damning, there was not the slightest reference in the story even to the possibility that the person arrested might not be the killer until the cops issued another press release.

One is reminded of the Queen of Hearts in Alice's Adventures in Wonderland, who insisted on having the sentence pronounced first and the verdict after. Similarly, the press too often, as here, would have us issue convictions first, investigations after. It's an unhelpful dynamic.

That sort of convict-em-first coverage probably contributes as much to wrongful convictions in high-profile cases as errors by police and prosecutors. Many of Texas' DNA exonerees had perfectly good alibis that checked out but which police, prosecutors and ultimately juries ignored in the face of eyewitness evidence. In those cases, like this one, the media had assumed from the get-go that the arrested man was the real killer and widely touted his guilt, even though he'd only been accused and nothing had been proven.

But remarkably, in this case, when evidence was presented that confirmed Calhoun's alibi, he was released. Despite the eyewitness. Despite media having already pronounced his guilt in their coverage, and despite the cops having already claimed credit for getting their man. There are plenty of guys with alibis just as strong who had to wait decades for DNA evidence to clear their names. Maybe it says something about changing law-enforcement culture if eyewitness testimony is no longer considered an absolute gold standard but just another piece of evidence which may be confirmed or denied by others. The episode perhaps bespeaks a greater appreciation of the dangers of tunnel vision and confirmation bias than law enforcement has demonstrated in the past.

When the wrong person is accused of a heinous crime, it's a double tragedy. An innocent person is punished while a guilty one goes free. So getting it right earlier than later in the process is particularly important.

It's a small moment, just one case, but perhaps a cause for optimism. For once, cops and prosecutors passed the test. The press failed theirs.