Thursday, December 31, 2015

Traffic enforcement as revenue generation, bullets no substitute for brains, and other stories

Today's a good day. I get to see three of my favorite people and then spend the evening babysitting, which last weekend was a lot of fun. So let's clear the browser tabs with a roundup of items which may merit independent Grits posts but probably won't get them:

Sandra Bland and traffic enforcement as revenue generation
Debbie Nathan suggests that the "real reason" Sandra Bland was locked up is that traffic enforcement has become about revenue generation. Good quotes in the story from the smart-as-a-whip Emily Gerrick at the Texas Fair Defense Project.

Austin criminal justice stories
The Austin Chronicle had a good, local list of top ten criminal justice stories compiled by Chase Hoffberger. You know one of the problems with criminal justice coverage? You have to remember a LOT of names. I can't always remember the names of people I've met, much less the litany that comes at you reading criminal justice coverage. All these were stories I'd tracked, but a couple I had to think, "Which case was that again?" And I follow this stuff more closely than most.

Bullets no substitute for brains
The Dallas News editorial board criticized arming state Attorney General white-collar crime investigators, opining that "turning the fraud police into a heavily armed SWAT-lite seems, on balance, an inefficient allocation of resources. Bullets have their uses but, in this case, are no substitute for brains."

On electronic surveillance
Read an interview from our pal Chris Soghoian, the chief technologist at national ACLU who's testified at several Texas legislative hearings on topics related to electronic surveillance.

Contemplating the limits of forensic testimony
I'd mentioned the other day that European forensic science appears not yet to have engaged in the sort of first-order reconsideration that's going on in the United States and particularly in Texas. So I was interested to see a good story in the Irish Times on the topic titled, "Why forensic evidence may not be as certain as we like to think it is." (H/T: Forensic Forum.)

I must ad-mittimus I didn't know this word
I love my "Word of the Day" email but must admit "mittimus" was a new one on me, and apparently also on the blog's spell checker.

Wednesday, December 30, 2015

'Harris County Jails Prove Impervious to Reform'

The title of this post is the headline of an item from The Atlantic by Conor Friedersdorf out today chronicling the failure of Harris County jail administrators to fix problems which were clearly identified in a 2009 DOJ investigation. The whole thing is worth a read, but especially notable was his conclusion:
Despite being put on notice, jail administrators abjectly failed to bring the system up to acceptable standards. Local officials failed to provide adequate funding and oversight. And innocents have almost certainly suffered irreparable harms to life and liberty as a result of these failures. For them, there will be no happy ending.
RELATED: Glimpses of the Harris County Jail's dark underbelly

Woog: AG, Lege must improve police shootings data collection

Texas' new reporting requirements on police shootings should be tweaked during the Attorney General's rule making process and upgraded in the next legislative session "to penalize noncompliance, expand reporting and improve the public availability of the information," said Grits contributing writer Amanda Woog in a Dallas News opinion column today. She called on the AG to:
  • Revise the reporting forms so that law enforcement has clear guidance on how to report incidents in which multiple officers have fired shots.
  • Publish when the reports are received and posted so that compliance with the law’s time requirements can be monitored.
  • Require law enforcement to clarify what is considered a deadly weapon in an officer-involved shooting.
  • Report to the Legislature if law enforcement agencies have submitted reports late.
  • Create a public source that aggregates the information reported.
Other fixes will require legislative action in 2017:
To begin, HB 1036 needs some teeth. There is no agency tasked with enforcing the law, and even if one were, there is no punishment for noncompliance. In contrast, the Texas law that requires that a death in custody is reported provides a criminal penalty for failure to comply.

Further, legislators should expand the information being collected and reported. This month, the FBI announced that it would start collecting information on any incident in which a police officer causes serious injury or death to a civilian. Though the original version of Texas’ new law included mandatory reporting of any serious injury or death, the enacted version was stripped to limit reporting only to officer-involved shootings. All violent encounters should be reported so that the public and policymakers can understand the extent of police violence and develop evidence-based solutions to prevent it.

Legislators should also require that law enforcement report the badge numbers of officers involved in these incidents. Law enforcement’s response to recent deaths by police violence – in particular, the deaths of unarmed black men and children – has largely been blamed on “a few bad apples.” If true, those bad apples should be identified and held accountable.

Finally, Texas should make the information reported available in an online database. The reports are currently posted as PDFs on the attorney general’s website. I have been gathering them into an Excel spreadsheet, which I post online. This solution is only a Band-Aid and does not create the kind of accessibility and transparency that would come from having the database available through a governmental agency.
Excellent work, Amanda. On behalf of everybody who cares about police shootings but didn't have time, knowledge or expertise to participate in rule making, thank you.

The AG should adopt the Woog amendments and Texas legislators should begin planning to improve the statute when they come back to town a year from now.

See related Grits posts:

Tuesday, December 29, 2015

Glimpses of the Harris County Jail's dark underbelly

Several remarkable Houston Chronicle articles over the last month about problems at the HPD and Harris County jails develop some particularly unfortunate themes, and demonstrated some impressive team reporting chops:

Calls for training, better cell checks follow Harris County jail suicides (Dec. 1)

Wrote St. John Barned-Smith, "[I]n thousands of pages of autopsy reports and internal disciplinary reports, the Chronicle found 35 instances in which jailers skipped required cell checks or faked records to hide skipping them, a pattern that experts called a serious problem at county jails statewide."

The union says "the jail has never been properly staffed because both county and state leaders don't provide adequate funding. 'We just don't have enough manpower for the number of beds we have in the jail.'"

"Statewide, 154 inmates have killed themselves in county jails since Sept. 1, 2009. Suicides in county jails recently hit a five- year high: 33, up from 22 five years ago. The spike has come even as state officials have tried to shrink populations. (The total excludes municipal jails, which the state does not regulate.)"

The article also included a link to a a consultant's report on suicide prevention at the Harris County jail.

HPD jailer gets year of probation and week in jail for assault case (Dec. 15)

After an inmate allegedly spit at him, a civilian HPD jailer "attacked a mentally ill inmate, hitting him multiple times in a padded cell at the Houston Police Department's Central Jail," according to the Harris County DA, which resulted in a conviction on misdemeanor assault charges. Further, said the DA, "video surveillance helped authorities identify discrepancies" in the jailer's account of events.

"'This case illustrates the importance of having a video when complaints are made against law enforcement officials,' Julian Ramirez, chief of the District Attorney's Office Civil Rights Division, said in the release. 'We could not have proven this particular case without the video to disprove the justification given by the jailer.'"

Inmate's claims of jailer abuse fall on deaf ears (Dec. 22)

This story by Anita Hassan and James Pinkerton opened:
William Curtis Evans is serving three years in a Texas state prison for assaulting a detention officer in the Harris County Jail named Larry Poag.

Exactly what happened when Poag fingerprinted Evans for a bicycle theft charge in March 2014 remains in dispute.

Poag claimed Evans, handcuffed and shackled, bit him on the forearm. The 67-year-old jailer later admitted hitting Evans in the face to stop the attack, disciplinary reports state.
Evans denied biting Poag and claimed the jailer assaulted him and bent his finger back so far that it broke.

But Evans would be sentenced to prison before anyone at the Harris County Sheriff's Office investigated his complaint, learning the hard way that there were few safeguards for inmates who claim to have been assaulted by guards.

The Chronicle found eight cases in which inmates were choked, punched or kicked by detention officers and then ended up facing felony charges for alleged crimes against staff members, even though jailers were later disciplined for misconduct in connection with the same incidents - either for using excessive force or failing to report the incidents. Three of the eight, including Evans, were convicted and went to prison.

The Sheriff's Office does not routinely inform prosecutors of internal investigations into jailer's actions that are directly connected to criminal allegations against an inmate, even when disciplinary action is issued against jail staff that is related to those charges, a sheriff's spokesman confirmed in an email.
Inmates accused, charged despite workers own misconduct (Dec. 22)

Another one from Anita Hassan, summarized in this passage:
a Houston Chronicle investigation has found misuse of force by staff against inmates is prevalent and hard to prove, especially when jail staff file charges against inmates in altercations during which their own actions have been called into question.

Between 2009 and May of this year, the Harris County Sheriff's office has pursued charges more than 900 times against inmates for harassment, assault and other crimes against public servants stemming from incidents within the jail, according to court records.

With the U.S. Department of Justice's Civil Rights Division continuing its review of excessive force by jail staff and pursuing an "ongoing law enforcement proceeding" in the jail, the Chronicle found that jail staff members have been disciplined in more than 120 incidents for misuse of force and other abuses of authority since 2009, records show.

Several of those disciplined have been involved in dozens of inmate prosecutions.
Tough bail policies punish the poor and the sick, critics say (Dec. 26)

This story by James Pinkerton and Lauren Caruba buried the lede, which should have been that "Fifty-five inmates died in the [Harris County] jail while awaiting adjudication since 2009. Eight were too ill to appear at initial bail hearings."

We also get this description of bail hearings in Houston, where it should be noted that indigent defendants are not represented by counsel: "Magistrates don't actually meet defendants, who are jailed across the street. Instead, faces appear on a screen. Few questions are asked. Some hearings last less than a minute."

County pretrial services employees interview most defendants, but "It's unclear whether magistrates review responses." "In recent hearings," reported Pinkerton and Caruba, "getting through the docket fast seemed to take precedence."

* * *

In summary, if you're too poor to post bond in Houston, your bail hearing will be a joke, with no lawyer to represent or speak up for you. You might get sick in jail or be beaten by a guard then convicted of a felony for assaulting him. Even if you're innocent. And if despair overtakes you and you attempt suicide, maybe no one will be there to stop you; perhaps they'll even falsify records after the fact to cover up their negligence.

That won't be everyone's experience, but these stories show it's been some people's. The Harris County Jail is so large that, among US states, it would rank as a mid-sized prison system. So when there are problems, they tend to scale up.

Houston voters sent a pretty strong message recently by failing to give former Sheriff Adrian Garcia a spot in the runoff for Mayor in a race which, at one time, some people thought was his to lose. IMO his poor showing stemmed largely from the public's recognition of problems at the Harris County Jail on his watch, some of the worst of which are cataloged in the stories above.

Perhaps that bodes well for finding solutions: If voters are going to punish politicians for these problems, maybe it will create some urgency for remaining Harris County pols with responsibility over the jail.

Monday, December 28, 2015

Criminal justice reformers dubbed 'Texan of the Year'

The Dallas News' selection of criminal justice reformers at the Texas Legislature - specifically Rodney Ellis, John Whitmire, and Ruth Jones McLendon, who they collectively dubbed the "Texas Justice League" - as their Texans of the Year was an interesting and welcome choice.

It's welcome because it further highlights the extent to which criminal-justice topics came to dominate the political landscape in 2015, in Texas just as much as across the rest of the country. Interesting because, while reformers had a successful session, it wasn't wildly so. In that sense, the declaration was more of a lifetime achievement award for the three Democrats named than a statement about what was accomplished in 2015. (And if you're going to focus on 2015, why not give props to Chuy Hinojosa who got so much done on forensics reform?)

Also, I don't agree with the "behind-the-scenes political players" who "uniformly described a strong reluctance among rank-and-file Republicans to embrace criminal justice reform." Grits isn't sure whom they interviewed, but rank-and-file Republicans are largely supportive whenever they get to actually vote on reform measures. It's been GOP leadership, especially in the House, which won't move the bills. While these three Dems all deserve recognition, one could easily have identified Republicans - like James White, David Simpson, Konni Burton or John Smithee - to add to their list. In a 2-1 R controlled Legislature, realistically nothing happens just because Democrats want it.

To me, the gifting of Texan of the Year status speaks more broadly to how much the terms of debate have changed in recent years regarding criminal-justice politics in Texas, and at a rapidly accelerated pace throughout 2015.

A lot has gone into changing those terms of debate. Much credit must go to stories like Steven Chaney's and Sandra Bland's, which have fundamentally altered how the justice system is discussed in the press and in political circles. The Texas Public Policy Foundation, key Right on Crime signatories, and a handful of conservative legislators and donors have worked tirelessly in right-wing circles to make it politically safe for Republicans to back small-government justice reforms. Meanwhile, the largest state-level criminal justice reform movement in the country has grown up in Texas to match our largest-in-the-nation prison population, providing considerable expertise, momentum and grassroots oomph to reform efforts.

So, while the Texan of the Year award justly acknowledges these three legislators' achievements, it's also a recognition of a real volteface on criminal justice. In the past 20 years, Texas has gone from a raging bipartisan consensus in favor of mass incarceration - with Ann Richards and the Democrats seeking to out-tuff the Rs with a largest-in-the-history-of-the-nation prison building spree - to an equally bipartisan effort to bring back common sense to the justice system, exhibiting real leadership on innocence, forensics, indigent defense, and sentencing.

By 2015, the terms of debate had shifted 180 degrees from the Ann Richards lock-em-up era to such an extent that, at a legislative hearing soon after Sandra Bland's untimely death, Tea Party affiliated members spoke out as or more strongly against anti-liberty police practices than Democratic liberals on the panel.

In that sense, "Texan of the Year" status is justified for the reasons stated in an accompanying editorial:
The reason this newspaper focuses so much on [criminal justice] is simple: The system has been inherently unfair for decades, wrongfully sending people to prison, or worse, and ruining lives. Change was long overdue. If someone didn’t step up to fight for reforms, this state would continue to rank among the worst in the nation. Texas is now celebrated as a reform leader.
To be clear, in terms of the number of proven false convictions and our tops-in-the-country incarceration levels, Texas continues to "rank among the worst in the nation." But the arguments against addressing that situation have withered away over time. In 2015, it became clear reformers are winning the debate. But politics isn't debate club and it remains to be seen if that will translate in 2017 and beyond to actually ending the era of mass incarceration. That may require Justice League participation of a different order.

Broken immigration system, poor schools, incarceration of the elderly all bolster private-prison industry prospects, says executive

Anyone who claims private prison companies don't profit off misery must reconcile that belief with this comment:
“The reality is, we are a very affluent country, we have loose borders, and we have a bad education system,” said Shayn March, the vice president and treasurer of the Geo Group. “And all that adds up to a significant amount of correctional needs, which, thankfully, we’ve been able to help the country out with and states with by providing a lower cost solution.”

The previously unreported remarks were made during a presentation at the Barclays High Yield Bond & Syndicated Loan conference in June.
From the same source, we also get this interesting analysis of high US crime rates: "March argued that crime is inherent in America because of affluence. 'No one is committing a lot of crime in poor countries because, well, who are you going to steal from?' March continued," offering an especially sanguine view of the private prison industry's future prospects:
March told attendees that factoring in elderly care, immigrant detention, and expansion plans overseas, the company is sure to grow. “I think I started at GEO, our stock price … got down to $12.50. And if you factor in an apples-to-apples comparison to where we are today, our stock is well over $50 a share. So we have quadrupled our value in that six-year period.”

He added, “No, we’re not Google, but we’re still doing pretty good.”

'Women pay the price when their loved ones are in prison'

A recent Huffington Post story titled, "Women pay the price when their loved ones are in prison" (Dec. 14) included this tidbit about a Texas Inmate Family Association chapter leader:
Leah Miller of Austin, Texas watched her husband struggle to find work after he was released from prison.

If not for an acquaintance willing to hire her husband, Roger, Miller suspects her husband would still be unemployed.

But even though Roger has a part-time job, he's barely able to keep up with all the fees that followed his release after three years in a Texas prison.

Miller keeps track of the post-release expenses on a spreadsheet that show the one-time charges, such as the $350 post-release psychological evaluation, the $250 polygraph test and $90 drug and alcohol assessment. And it lays out the monthly and weekly charges for drug testing, counseling, probation and fines that add up to more than $250 a month.

"He's employed part-time and all of his money goes toward fees and fines," said Miller, who works for a computer company. "We live on my salary alone."

"We are in permanent peril of falling into poverty and living on the street ... The cost of incarceration does not end with them coming out. It goes on and on and on," Miller said.

The unfairness propelled Miller into activism. She's now the chairperson for the Texas Inmate Family Association North Austin chapter. Miller advises relatives on how the prison system works and provides support.

Sunday, December 27, 2015

Privately run McLennan jail mired in problems

Our friends Diana Claitor and Rebecca Larsen of the Texas Jail Project have a fine little column in the Waco Tribune Herald today titled "McLennan County jail increasingly mired in abuse." The article opened:
Last month, McLennan County received a notice of non-compliance from the Texas Commission on Jail Standards after the death of 25-year-old Michael Martinez in the Jack Harwell Detention Center.
Three employees of the privately run jail have been arrested and charged with forging government documents after they allegedly covered up the fact that they were not performing visual checks on at-risk people — a violation of federal law. Records indicated that jailers had checked on Martinez within the required half-hour time span, but an investigation revealed that Martinez had been hanging for almost three hours when found.
LaSalle Corrections is the for-profit company that runs the Jack Harwell Center for McLennan County. “We think they’re excellent operators and, unfortunately, sometimes things like this happen,” said McLennan County Commissioner Scott Felton.

But that’s not what families with loved ones in that jail say. At the Texas Jail Project, we have received pleas for help from families concerned about loved ones being refused mental-health treatment, essential medications and medical care.

Several days before Christmas, another story came to light when the Tribune-Herald revealed that a formerly jailed 30-year-old woman filed a lawsuit in Waco’s 170th State District Court against LaSalle Corrections. The lawsuit alleges she was repeatedly sexually assaulted at the facility and goes on to describe an out-of-control institution rife with smuggling, extortion and drug abuse.

Felton’s description of LaSalle as “excellent operators” is strange considering these incidents as well as the history of this facility. Last year, U.S. Immigration and Customs Enforcement (ICE) removed all immigrant detainees from the Jack Harwell Center after ongoing claims of civil rights violations by attorneys and advocates. Prior to May of 2013, another private contractor of this facility, CEC, was cited for sexual abuse and other violations.

Despite ongoing controversy, McLennan County renewed its contract with LaSalle last year with the addition of a 90 percent occupancy clause: If the jail is filled with fewer people than 90 percent of its available beds, LaSalle can end its contract with a 90-day notice. We believe that a jail should not have a contracted mandate to stay full because that results in a deliberate effort to increase the number of arrests.

This does not make Waco a safer community and intensifies mistrust of law enforcement.

Debating the biggest Texas criminal justice stories of 2015

On Christmas Eve, the Texas Tribune published a list of the "Top Crime News of 2015," so rather than catalog Grits' own such greatest-hits tally, let's build on the Trib's nine-item inventory of the year's most important criminal-justice news stories.

First, numbers five and six surely must be moved to one and two. There's no question that Sandra Bland's death and the murder of Deputy Darren Goforth in Houston were the two top criminal justice stories of the year, in many ways helping define the national conversation, pro and con, surrounding the #blacklivesmatter movement. Beyond that, it's hard to see how the Waco biker shooting didn't make the cut: Nine people were killed, four of them by police snipers, after which 177 people were jailed for trumped up conspiracy charges on $1 million bail with virtually no evidence presented to the court to justify it. As prosecutorial and judicial overreach goes, Texas hasn't seen anything on this scale since The Great Eldorado Polygamist Roundup.

Some of the others I might not have included, or lowered in ranking. The execution of one of the Texas Seven escapees likely refers to an episode Texans under 40 won't even remember. And, like the death of rookie Correctional Officer Timothy Davison, which the Trib ranked number two, the episode had few policy implications compared to the way the Bland and Goforth episodes are already driving legislative work. Ditto for the Bernie Tiede case, which has media legs because his story was made into an excellent movie but which has few broader implications for the state. (That's also the reason I wouldn't have included Rick Perry's indictment, which the Trib also left off; his case is entirely atypical.)

I'm tempted, even, to say the same about the Scott Panetti case, which drew attention for the crazed antics of a mentally ill man representing himself on capital murder charges, though there are at least bigger-picture policy questions at stake beyond just his case.

Whether the source of execution drugs is secret wouldn't have made Grits' top ten list. It's an interesting topic, but "Texas AG bad on open records" is hardly news anymore, and IMO it's not one of the most important criminal justice stories of 2015.

The ones we agree on beyond Bland and Goforth: Decriminalizing truancy and the DNA mixture debacle. Those are big stories, the latter with national and even international implications.

For me, I'd have included the fascinating race this year between the Legislature and the Court of Criminal Appeals to interpret Texas' new, much-admired junk science writ.

Grits would also argue for assigning near-top billing - probably #4 on my own list - to a topic the mainstream media hasn't even covered: The adjustment of property theft thresholds for inflation, which boosted the threshold at which thefts become a felony from $1,500 to $2,500. By comparison, in Virginia that threshold is $200. In an era when so many people seem to be favorably discussing ways to lessen incarceration of non-violent offenders, I'm surprised this hasn't gotten more attention.

To me, the debate over the last slot comes down to the creation of a new "Exoneration Commission" and the Forensic Science Commission launching case-by-case reviews where flawed scientific testimony helped convict people. The forensic reviews win out, IMO, because they're concretely happening whereas the work of the Exoneration Commission remains speculative.

There's an argument for including new assessments of the massive DPS border surge showing few safety gains on the border and measurable declines in safety elsewhere in the state. For that matter, the legislature's rebuke of DPS' unilateral move to gather all ten fingerprints from Texas drivers was a pretty big deal. One could also make an argument for including Texas' two big contributions this year to the national debate over police shootings: The creation of new reporting about people wounded or killed by police and a Supreme Court case establishing immunity for a state trooper to shoot at vehicles from an overpass, even against direct orders from a superior.

So any such list is subjective, there's always room for debate. But here's how Grits would have ranked Texas' top criminal justice stories of 2015:
  1. Sandra Bland's death
  2. Darren Goforth's murder
  3. Waco biker shootout, aftermath
  4. Raising property theft thresholds
  5. DNA mixture debacle
  6. Decriminalizing truancy
  7. Ending pick-a-pal grand juries
  8. Strengthening junk science writ
  9. Flawed forensics reviews
Honorable mention:
See also Grits' recap of 2015 TX legislative accomplishments.

Saturday, December 26, 2015

Texas Forensic Science Commission, we're ready for your close-up

In the January issue of Texas Monthly, Michael Hall has an extended feature on the Texas Forensic Science Commission. The story does a good job capturing the remarkable scope of work being performed by this small agency and its indefatigable general counsel Lynn Garcia, whom Grits had suggested deserved dark-horse candidate status for the Dallas News' Texan of the Year award. She has her critics among anonymous blog commenters, but Grits has seldom heard any stake holders with a negative word to say about Garcia, save perhaps a bit of pro forma whining when their own agency or division is on the dock. Even then, most people view Lynn as a straight shooter. I'm personally a big fan.
as of November, the FSC had received 126 complaints and 17 lab disclosures and has looked into 12 of them, with another 10 pending - See more at:

The most frequent and understandable critique I hear of Garcia and the FSC is that they've bitten off too much, a concern Garcia herself voiced in the article. IMO, however, that's a function of the times in which she's performing this work. As Grits readers are aware, we stand on the precipice of a fundamental re-evaluation of forensics which has only begun to be considered at USDOJ or in other American states. Elsewhere in the world, the topic has yet to be seriously considered.

For example, judging from this recent report from the U.K.'s Chief Science Adviser and related coverage, forensics in the U.K. appear not to have begun confronting the lack of scientific grounding underlying many disciplines in the way that the United States and particularly Texas have done following the 2009 National Academy of Sciences report, "Strengthening Forensic Science: A Path Forward." (Hall's story has a good, brief description of Texas' reaction to this event.)

Instead, the Science Adviser wants the U.K. to apply those disciplines to new areas. The report discussed the "challenges" facing modern forensics but included nothing about improving rigor or performing basic research to justify or discard junk science. Instead, it suggests forensics can make greater contributions beyond the justice system, without qualifying the claim to say that many traditional forensics have never been validated.

In that light, FSC Chairman Vincent DiMaio's boast in the TM story that, “Texas is pioneering. We’re so far ahead—everyone else is eating our dust,” really isn't far off. As Michael Hall put it:
The FSC has emerged as one of the most important forensic science policy groups in the country, one trying to fix serious problems—in particular, how to stop convicting innocent people based on outmoded science. Other states, including New York and Delaware, have similar commissions, but Texas has had the most success at bringing about reform. - See more at:
The FSC has emerged as one of the most important forensic science policy groups in the country, one trying to fix serious problems—in particular, how to stop convicting innocent people based on outmoded science. Other states, including New York and Delaware, have similar commissions, but Texas has had the most success at bringing about reform.
Texas pols like to think of themselves as "leaders" on everything - even topics  on which the state notably brings up the rear of the pack. But in this case, such grandiloquence is justified. USDOJ is ahead of other nations when it comes to reevaluating forensics, and the FSC's case-review program is several steps ahead of the feds. That's a good thing, if also a cause for caution. Pioneering is dangerous business, but somebody's got to do it.

Wednesday, December 23, 2015

Thanks for nothing, Greg Abbott: Why conservatives should demand 'industrial-scale' clemency

UPDATE/CORRECTION: The Dallas News' Brandi Grissom emailed to say that, "Abbott did issue pardons this week, a whopping four of them, but he didn't put out a press release. Here's my story." Grits apologizes for the error; I'd been checking the governor's site every day all December for pardon news, but clearly I need better sources, like Brandi.

Original post, corrected:

Clemency Grinch, Pardon Scrooge - pick your seasonal epithet, but Texas Governor Greg Abbott is about to complete his first year as governor without exercising once having barely exercised one of the handful of core functions assigned to his office in the state constitution: Executive Clemency.

Grits has been waiting to see if the governor would issue a handful of symbolic pardons around Christmas, as was his predecessor's wont, but so far, no dice. I'm not a great fan of the Christmastime pardon tradition, but at least it acknowledges the gubernatorial function. So far, Greg Abbott has shirked this responsibility. To his discredit, in Abbott's first year as governor, Barack Obama has granted clemency to more Texans than him, and Obama's clemency record is abysmal.

It's not like the Texas governor really does much: Sign or veto bills, make appointments, and clemency really are the main things on his plate under the state constitution. But one of those three has been all but abandoned.

The American Conservative this week published an article lamenting "small trickles of clemency" by President Obama and New York Governor Andrew Cuomo "where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency."

 As the author recognized, "the real action is at the state level, which handles most policing, sentencing, and imprisoning." In this discussion, former Gov. Rick Perry made an appearance among "recent governors [who] have distinguished themselves with their appalling miserliness." Citing a data point which originated with research on Grits, he declared that "Rick Perry appointed a clemency board of tough-on-crime hardcases, then rejected two-thirds of their pardon and commutation endorsements."

Clemency these days mostly comes up in the context of capital murder and innocence cases. But this article suggests that governors embrace "industrial-scale" clemency aimed at reversing mass incarceration.
Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error. Even with DNA evidence and a verified confession exonerating the five youths convicted of raping and assaulting the “Central Park jogger” in 1989, former prosecutor Linda Fairstein still insists she got the right culprits. But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.

The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster. A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong.
The article supplies an overview of past acts of mass clemency and the recent re-embrace of the pardon power across partisan lines by a handful of American governors:
U.S. history turns out to be generously littered with acts of mass clemency. In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore—as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song. In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office. 

Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy. Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition. (Many of these examples are drawn from Marie Gottschalk’s new book Caught: The Prison State and the Lockdown of American Politics, the best single-volume overview of the ongoing crisis in American criminal justice.)

Today, even as clashing currents push at the same time for greater mercy and greater harshness, an affinity for the pardon power has trespassed wantonly over the country’s regional, ideological, and partisan divides. Recent governors who have pardoned and commuted with magnanimity include Arkansas Republican Mike Huckabee (1,058 pardons in his 10 years in office), California Democrat Jerry Brown (83 pardons on last Easter Sunday alone) and Michigan Democrat Jennifer Granholm (182 commutations in her two terms). Haley Barbour pardoned 203 prisoners at the end of his second term as the Republican governor of Mississippi, an act that briefly became a national non-scandal eagerly covered by the national media sniffing around for gotchas. (Thank you, o “liberal” media.)
Considering the increasing number of low-risk elderly folk in state prisons, there's even an argument for expanded clemency on fiscal conservative grounds:
Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.
Bottom line:
What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population. There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power. These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55. Routinized clemency on a grand scale will be necessary to tame this beast.
Greg Abbott has yet to embrace barely embraced his clemency power even on a symbolic level, much less on an industrial scale. But what's at stake is more than the fates of individuals who benefit from executive mercy, concludes the American Conservative piece, but rather the issue speaks to who we are as a people and the hypocrisy of mass incarceration in the self-styled "land of the free":
According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.
Since Rick Perry issued his last pardons on December 19, 2013, it's now been it took more than two full years since before any Texan received the benefit of state-level executive clemency, and then the governor's mercy was limited to four, unheralded souls. Grits isn't sanguine Greg Abbott will ever ramp up to "industrial scale" clemency given this tepid start, but that's what's needed.

Sunday, December 20, 2015

Symposium on Police, Jails and Vulnerable People

The tragic death of Sandra Bland put a human face on the troubles lurking within the "pretrial" stage of criminal justice--policing and the decision to effectuate a custodial arrest, the bail decision, jail safety and the impact of incarceration on the mentally ill. The profound sadness and frustration over her death has galvanized legislative hearings and more are planned.

By all accounts, the next legislative session promises to bring some important criminal justice reform. For a preview of some of the most pressing issues, a group of academics, including yours truly and another Grits writer, Michele Deitch, have organized a major symposium called, "Police, Jails, and Vulnerable People: New Strategies for Confronting Today's Challenges."

The program, to be held at the University of Houston on January 22nd, was a joint effort by the UH Law Center and the UT at Austin's LBJ School of Public Affairs. Remarkably, the event also draws on support from seven other academic institutions, including four other law schools (UT Austin, SMU, TSU, South Texas), two criminology programs (UH Downtown, UH Clear Lake), and a program on mental health (Hogg Foundation at UT Austin). The agenda features an all-star cast, with speakers from around the country and the UK, as well as at least four Texas legislators and other state and local officials.  And, in the spirit of the holidays, the program includes free CLE for attorneys, including an hour of ethics. Seating is limited, so registration is highly recommended.

Saturday, December 19, 2015

On arresting kids for their electronics

Once they figure out it's battery charger, not a bomb, couldn't the arrest and two nights in juvie for a 12-year old kid of Indian descent be avoided? (Not the clock kid, another one, this time down the road in Arlington.)

We're in an era of DIY electronics, robotics, Arduinos, Raspberry Pis, the Internet of Things, etc., where lots things in a prototyping stage and even, apparently, some finished projects "look like bombs" based on pop culture, with all sorts of wires and components which seem inexplicable to the uninitiated but are entirely benign.

Circuitry to control 2 DC motors with an Arduino

Your correspondent has been teaching an after-school group one day a week at the granddaughter's elementary school where, this year, we took apart a broken printer to harvest the motor systems and will wire one of them up independently to make what we're dubbing a laser shooting robot. ("Robot" is strong - the kids will control it, it's not autonomous - but I find they're bored by "electronics" and love "robots," so it's a robot.)

Though I didn't blog about it, Grits must admit to watching the whole "clock boy" episode with great interest because our project poses similar risks of misinterpretation by the ignorant. When you use an Arduino, breadboard and H-bridge chip to control a simple DC motor, the resulting patch of wires would "look like a bomb" once it's jammed into a briefcase or backpack, even though it couldn't be more benign.

Partly for that reason, after the clock-boy incident I decided to hunt down a pre-fab part that would control a motor without them having to wire up a chip themselves. The last thing I want is some cretinous bully, whether cop or administrator, hassling my kids over a project that's supposed to be fun for them. So risk aversion lessens their learning experience. I don't like that, but it's the practical effect that story had on our little program.

This thing about arresting kids over their electronics gear will likely continue to happen - especially for youth whose families hail from south or west Asia - because electronics have become so much more accessible to kids at a younger and younger age and fear appears to have outstripped reason.

School cops and administrators need a better grasp of what hobbyist electronics look like before assuming every brown-skinned kid with a wired up project is a villain from an episode of Homeland.

We don't need no stinkin' Speedy Trial Act

Though Texas has no speedy trial act on the books, there's a general sense within the system that, as the adage says, justice delayed is justice denied. But the judiciary has been loathe to accept actual temporal limits on their work, allowing huge backlogs to develop that fill up county jails with people who can't make bail awaiting trial. A recent move to create aspirational goals to improve those timelines faces perhaps predictable judicial opposition. From Texas Lawyer (Dec. 15):
The Texas Supreme Court Advisory Committee is planning to convene a task force of its members and others appointed by the Texas Court of Criminal Appeals to begin drafting time standards for criminal cases for the Texas Rules of Judicial Administration.

Texas Supreme Court Chief Justice Nathan Hecht asked the SCAC to make recommendations about how to amend Rule 6.1, which sets aspirational time standards for courts to dispose of criminal cases. Currently the rule refers to a 1987 state law, the Speedy Trial Act, which the Court of Criminal Appeals struck down as unconstitutional in 1987. The Texas Legislature formally repealed the speedy trial act in 2005.
Here's a good description of the options on the table:
David Peeples, the chairman of the SCAC's subcommittee on time standards for criminal cases, wrote in a Dec. 10 memo that the advisory committee could recommend to simply delete the reference to time standards in criminal cases altogether, but that there's "no real support" for that option.

Another idea is to delete references to the speedy trial act, and instead, list three other parts of the Code of Criminal Procedure that require a criminal-defendant who is in jail to be released on bond or bail if the state isn't ready to go to trial within a certain time, require a court to dismiss a defendant's case if the state doesn't indict or charge him within a certain time, and give precedent to criminal trials over civil trials and to criminal defendants who are in jail over others.

A final option, Peeples' memo said, would be to change the rule to include a new set of time standards. The new task force will help draft those time standards and then present them for the full SCAC's consideration.
The voice of pragmatism arose out of Houston from whence:
Rusty Hardin, a SCAC member and well-known criminal-defense lawyer who has also worked as a prosecutor, said that most criminal defendants do not want a speedy trial. He said the real issue in the criminal justice system is that people are "languishing in jail" because of bail policies. Hardin said he was skeptical and pessimistic about whether time standards would have any meaning.

Hecht noted that the high court has convened a separate committee to propose changes to pretrial release policies.
Defendants who can't make bail may want a speedy trial (or plea) because, until the matter is resolved, they must sit in jail. If they're out of jail awaiting trial, they're more likely to care about a fair one.

Interestingly, "two SCAC members who are practicing jurists opposed the idea."
"Aspirational goals lead to statistics being kept. That leads to … public perception and then the use of those statistics in election cycles, when judges are not in a good position to defend why individual cases were or were not met in the goals," explained 10th Court of Appeals Chief Justice Tom Gray.
That's just perfect, isn't it? What's really being said is judges don't want to be held accountable by voters. Grits is not a great fan of electing judges. But if we're going to do that, voters need information on which to base their decisions and it's not unreasonable for them to hold judges accountable for either meeting speedy trial goals or supplying a good explanation why they didn't.

Latest McLennan DA screwup par for Waco biker case

Even in a large-scale episode like the Waco biker shootout in May, one would think authorities ought to be able to count the number of dead. Regardless, it turned out the 10th victim listed in the Twin Peaks biker shootout indictments didn't exist and was just a case of the same sort of sloppy lawyering which led the DA to charge dozens of people with the same, trumped up offenses. (Four others were shot by police with rifles from a distance.) Reported the Houston Chronicle:
Everyone has been charged with the same crime - which carries a penalty of 15 years to life in prison - even though police surveillance videos clearly show most of the bikers running from the violence and ballistics tests on guns and bullet fragments have not yet been completed.

"It is a reflection of how sloppy this case has been handled from the beginning," Dallas lawyer Clint Broden said.

"He was really able to bamboozle the grand jury into indicting people for crimes that he acknowledges they didn't commit," said Broden, who added that it was an example of the adage that a prosecutor can indict a ham sandwich if he chooses to do so.

Amanda Peters, a former prosecutor who is now a professor at the South Texas College of Law in Houston, had little sympathy for Reyna.

"This office has already come under a lot of criticism," Peters said. "And you would think that they wouldn't want to do anything to fuel more criticism."

Peters said that from a legal standpoint, prosecutors can easily go back and amend the indictment, but that they have made yet another embarrassing public gaffe.

"This is one more indication this case isn't being handled as cleanly as it could," she said. "Most defense attorneys and prosecutors (in Texas) are scratching their heads," she said. "People I talk to are like, yeah, that is a mess."

The McLennan County District Attorney's Office has tried to do too much too quickly, she said.
"In every one of these mass-arrest situations, it always ends up a disaster," she said. "There are lawsuits filed; settlements; somebody gets kicked out of office or fired - not to mention the mockery it makes of the justice system."
Abel Reyna and the rest of the McLennan County justice system are in way over their heads and poised embarrass the entire state if they don't get a clue and begin to limit criminal prosecutions to people who actually engaged in criminal behavior.

Vicissitudes: Leaving IPOT

Well, I suppose Grits must rip off the band aid: Your correspondent submitted his resignation as Executive Director of the Innocence Project of Texas recently and will leave the organization at the end of the month.

People all around the Texas criminal justice system have been incredibly kind and supportive in the short time I held the job, but things didn't work out.

Bottom line: This wasn't a good fit and I wasn't happy. C'est la vie. Grits' life will improve as a result.

No telling where I'll land yet but I'm looking forward, not back. Thanks for your support, folks. Grits isn't going anywhere. I was at all this reform work for a decade before anybody paid me a dime. It'll take more than an abrupt bout of unemployment to roust this particular hobo off of this particular train.

Friday, December 18, 2015

Guards say Texas prisons a 'living hell,' and other stories

I finally created bios for all of Grits' new contributing writers. See here. And here are a few odds and ends which haven't made it into independent Grits posts but merit readers' attention heading into the weekend:

Thursday, December 17, 2015

Why Texas' civil commitment program was found unconstitutional

After Nancy Bunin did such a great job of analyzing Texas' sex-offender civil commitment legislation this spring, I asked her to author a guest post explaining the import of a recent, widely publicized ruling declaring the program unconstitutional and releasing the first Texas sex offender ever from civil commitment restrictions. Here's what she wrote. Thanks Nancy for agreeing to do this. UPDATE: An appellate court overturned part of this ruling but "did not address Reiter's issues with the legality of the civil commitment program."

Recently the Honorable P.K Reiter made headlines by finding Chapter 841 of the Texas Health and Safety Code unconstitutional. On Monday, December 14, Judge Reiter agreed with Defense Counsel Bill Marshall’s conclusion that the involuntary commitment of Alonzo May under the recently amended law was punitive and a denial of the man’s due process rights under both Texas and U.S.

(May was previously ordered into outpatient treatment as a repeat sex offender)

Earlier this year I submitted an article contemplating the proposed changes pending in the 84th Texas Legislature concerning amendment of the Texas Health & Safety Code Chapter 841, the law providing for the civil commitment of repeat sex offenders. Unfortunately, though extensive changes in the law put into effect on June 17, 2015, the law is still problematic. The new laws failed to adopt many suggestions, calculated to address many of the significant problems with the civil commitment program, offered by attorneys that represent men in civil commitment.

The civil commitment law was enacted in 1999 and approximately 400 men have been committed. Approximately one-half of those men have been sent back to prison for technical rule violations (not new offenses). No man has ever been allowed to complete the program, been recommended for release by the TCCO and then released by the court.

Either late last year or early this year, Avalon and GEO (the companies who operated the half-way houses where the vast majority of men in civil commitment were confined) informed the State that they would not renew the contracts pursuant to which they housed men in civil commitment. The State's solution was to contract with Correct Care Recovery Solutions to house all of the men in a vacant private prison.

When the law was amended this summer the outpatient program was changed to inpatient program. In July, employees from TCCO made presentations to the men living in halfway houses in Austin, Dallas, El Paso, Fort Worth, and Houston. They were given a copy of the new statute and told they could either sign an agreement to voluntarily be placed in the new inpatient program or they would have a “Due Process” hearing in Montgomery County District Court.

Men previously ordered into outpatient treatment were suddenly being asked to sign a legal document with no legal advice and no details about the new program. They were told the outpatient program no longer existed and they would be moved to a facility in Littlefield, Texas. They did not know who would provide treatment and they did not know whether they would receive a treatment level equal to that which they had achieved in the outpatient program. The men have been placed in a tiered program, with Tier 1, the lowest tier, being in total confinement in the Littlefield facility and Tier 5, the highest tier, (labeled “aftercare”) being permitted to live outside the facility.

The law requires State Counsel for Offenders, a division of the Board of the Texas Department of Criminal Justice, to represent indigent persons in civil commitment proceedings. On its own, SCFO decided that “civil commitment proceedings” is defined solely as the civil commitment trial, biennial reviews and petitions for release. The decision was made at SCFO that they WOULD NOT represent these men in the “Due Process” hearings. As the majority of civilly committed men are indigent and were not helped by SCFO, they had no legal representation during the “Due Process” hearings or to determine whether to sign the agreement.

I observed several hearings of unrepresented men. All requested an attorney, a request that was ignored by the assigned judge. In one case, the assistant attorney general argued the man did not need an attorney because he went to the law library on a regular basis.

Enter Bill Marshall, former SCFO attorney, who continues to represent many men in civil commitment as a private attorney. During the fall months of 2015, Marshall and at least three other private attorneys represented some men in these hearings. It is my belief that Marshall represented more men than any other attorney. While I do not think Bill meant to represent everyone on a pro bono basis, it is my belief that he agreed to reasonable fees and offered very generous payment plans.

In September it was announced the “Tiered Treatment Program” would be at the former private prison that is now owned and operated by the Correct Care Recovery Solutions in Littlefield, Texas, approximately 40 miles northwest of Lubbock, Texas.

Correct Care Recovery Solutions also provides the treatment to the “residents” of the facility (formerly the Bill Clayton Detention Center and now known as the Texas Civil Commitment Center).

At the time a handful of men were living or working outside facilities operated under contract with the State. No effort was made to assess whether other individual patients, many of them having made significant progress through years of treatment, should be housed in a less-restrictive setting. The decision appears to be primarily a financial one – the TCCO did not have the money or contracts for supervised, community-based housing.

TCCO violated the patients’ civil rights by summarily placing the patients in the new inpatient program when the men were committed under the original outpatient program. To place these men in a locked facility after they had been living in half way houses, and in some cases working in the community, denied the men liberty with out due process of law.

A few men that demonstrated exceptional progress in the outpatient program, and in some cases had completed the therapeutic portion of the program, were informed by TCCO that if they signed the agreement, they would be allowed to live independently. If those lucky few did not agree to go into the new Tiered Inpatient program, they were threatened that they would have to go to Littlefield until employees with Texas DPS Sex Offender Registration could process their new addresses. This put some of the men’s jobs in jeopardy and employment is the cornerstone of independent living and important for progress through the program.

I assisted Bill Marshall in one “Due Process” hearing. Bill’s client had been in treatment for six years. He had been assigned to a half way house in a city that was in close proximity to highly supportive and extensive family members. His treatment provider and two case managers testified that he was doing well in the program and that family support was important to his progress. We even presented an employment counselor that was helping him find employment and his minister that said our client served as an excellent example to the rest of the men in the program. None of this support would be available to the client in Littlefield. The State offered no evidence of what treatment or opportunities would be offered in the new inpatient program.

In that case, the assigned judge issued a modified order allowing TCCO to place our client in Inpatient Treatment. So our client is now housed over 800 miles away without the support of his long trusted treatment provider, family, minister, or employment assistance.

Although Judge Michael T. Seiler is the presiding judge of the 435th Judicial District Court in Montgomery County, other visiting judges were assigned to assist with the monumental task of sitting in on approximately one hundred “Due Process” hearings. At least five cases were assigned to Judge Reiter. At their initial hearing all five of the men were unrepresented. Because the State offered no evidence of the new inpatient program, Judge Reiter decided the State had not carried its burden of proving that the men would benefit from the new inpatient program and refused to order the men into the new program.

The State asked Judge Reiter to reconsider based on new documentary evidence and new testimony they would offer at a hearing. A new hearing took place on December 8. The State brought a former executive director of Council of Sex Offender Treatment (CSOT) to testify regarding the differences between the outpatient and inpatient programs and the clinical director of the TCCC to testify about the advantages of inpatient treatment program. The evidence indicated to Marshall (and seemingly to Judge Reiter) that the only significant differences between the two programs were: the inpatient program offered more hours of treatment per week; the men would not be allowed to leave the TCCO under unusual circumstances and then only under guard; and, the TCCO was actually a prison with prison environment rather than a half-way house. The clinical director agreed that there exists a difference of opinion among experts in the field of sex offender treatment about whether inpatient or outpatient treatment was preferable.

One option the State asked Judge Reiter to consider was ordering Mr. May to simply continue his outpatient treatment in the Littlefield facility. This option flew in the face of the testimony that the outpatient program no longer existed.

Among the evidence offered by Attorney Marshall was an aerial photograph of the Littlefield facility. Judge Reiter noted that the facility was surrounded by a high double fence topped with razor wire. There was little doubt that this was not an outpatient residential facility. In fact it was reported that Judge Reiter remarked Littlefield resembled a concentration camp!

The United States Supreme Court has held that civil commitment of sex offenders after they have discharged their prison sentence is only constitutional as long as the purpose of the scheme is therapeutic. If the purpose of the program is to extend the punishment of the sex offender then the program is unconstitutional.

Judge Reiter was the first judge to preside over civil commitment trials. He served as a visiting judge on over 70 civil commitment trials after he took senior status. He has observed a process that has grown far beyond the original intent of the statute that was to commit a small but dangerous group of individuals. He has observed that in the early years of the program, civilly committed men lived in private housing but were required to attend treatment after release from prison. He observed a program that required men to leave their homes and live in State contracted halfway houses and jails. Then he observed the program require these same men to move into a prison in a very remote part of Texas far from community and family support.

Judge Reiter reached the correct conclusion of law in Alonzo May’s case. There are nearly 200 men at the Littlefield facility that were committed to outpatient treatment. Those with income are required to pay for their confinement, treatment and their required GPS ankle monitors (yes they have to wear the GPS monitors inside the prison). Not even prisoners held in TDCJ are required to wear ankle monitors or pay for the cost of their housing.

The few men that live in transitional housing outside of Littlefield are under constant threat of being sent to confinement. Men are required to pay up to 33% percent of their income for therapy and ankle monitors. This assessment was made AFTER TCCO approved the men’s’ budget plans that allowed them to live independently.

Apparently TCCO provides no assistance to men who have been housed in civil commitment to secure or support themselves in independent housing.

The State still holds men in civil commitment that have completed treatment and who are no longer likely to commit predatory acts of sexual violence. The State offers far too little assistance to men to release them from commitment. The statute still puts an onerous burden on the civilly committed man to show why he should be released, rather than have the state show why they can still hold him.

(There is late breaking news that the State continues to oppose Mr. May’s release and that his liberty is in jeopardy despite Judge Reiter’s ruling.)

For nearly a year, legal advocates have offered to explain the constitutional deficiencies in the civil commitment program to Sen. John Whitmire and the TCCO Director in hopes that deserved men will be released and the men held in commitment will be treated humanely.

Now would be a good time for them to seriously reconsider the assistance offered to them.

Nancy Bunin is an associate at Habern, O’Neil & Associates in Houston, Texas. She has defended men in civil commitment trials, biennial reviews, appeals, and in criminal prosecutions of civil commitment rule violations. She is co-chair of the Texas Criminal Defense Lawyers Association, Committee on Corrections and Parole. She wishes to express her appreciation to William Marshall, William Habern, Nicolas Hughes, and Alex Bunin for their contributions to this post.

Nueces jailer who beat inmate, accused him of assaulting a public servant, faces no consequences

Here's a story that reminded me of the unheralded Carlos Flores exoneration, where a man pled guilty to assaulting an officer when really the officer had assaulted him, while handcuffed, and the police department had exculpatory video in its possession that it failed to turn over to prosecutors.

In Corpus Christi in August, reported Krista Torralva at the Caller Times (Aug. 12):
A Nueces County jailer who accused a former inmate of attacking him admitted video footage showed the inmate was the victim, according to a sheriff's office investigator's report.

Prosecutors declined to move forward in June with a charge of assault on a public servant against the inmate, Danny Gonzales. Last week, a case against him involving another jailer in a separate incident in the jail was dismissed.
Though none of the newspaper's coverage names the jailer, to its credit, the Caller Times filed extensive open records requests regarding the incident and obtained video:
Video of the May 31 incident shows an officer open the door to Gonzales' cell. Gonzales approaches the officer and appears to say something to him. The officer then pushes Gonzales, pins him against the cell wall and wrestles him to the ground while another officer looks on. The second officer joins the first in forcing Gonzales to the ground and the two officers punch the inmate several times. At one point, the second officer pushes Gonzales' face against the ground. About six additional jailers respond as the incident ends. Two of the officers then lead Gonzales out of the cell.

The video, which lasted about three minutes, has no audio.

Both officers wrote in their reports that Gonzales swung at one of them when they tried to secure his left arm. The officer told a sheriff's office investigator that he placed his hand on Gonzales' arm to have him back up before Gonzales struck him, according to the investigator's report. The video does not show the officer placing a hand on Gonzales before charging him.

The investigator wrote that she had the officer watch the video and asked "if he still considered himself as the victim or if he felt that he assaulted" Gonzales.

"(Correctional Officer) stated that after viewing the video surveillance that Inmate Gonzales was the victim," the investigator wrote in the incident report.
In addition:
Lorena Whitney, a chief prosecutor, cited the video when she declined to accept the case against the inmate.

"Video does not match what officers described as to what occurred before assault (and) during assault," Whitney wrote in a form rejecting the case dated June 11, five days before the investigator interviewed the officer.
In the next day's paper (Aug. 13), Sheriff Jim Kaelin defended the jailer's action, and emphasized that the victim was somebody they'd frequently seen before. "Gonzales has a 2013 conviction for assaulting a public servant," the paper reported, and "Court records show he also has misdemeanor convictions including failing to identify himself as a fugitive, driving with an invalid license and for assaulting a family member. Gonzales was arrested last year for violating conditions of his probation."

For prosecutors, though, that didn't mitigate what they'd seen on the videotape:
District Attorney Mark Skurka said as a result his office is tightening its requirements of the jail to accept assault on public servant cases. He expects prosecutors will need video evidence in most cases of assaults on jailers or an explanation as to why video does not exist. He also wants any existing reports of prior or subsequent incidents involving the inmate and jailer.

Each year, the district attorney's office gets an estimated 30-40 cases from the jail involving assault on a public servant, Skurka said.
One wonders how many of those 30-40 cases per year have people who, like Gonzales, were in fact innocent of the charges?

So far, though, the jailer has faced no reprisals, has not been charged with a crime, nor even been named publicly in news coverage. On September 11, Torralva reported that:
A Nueces County jailer shown hitting an inmate in a cell during a videotaped confrontation has been cleared of any wrongdoing through an internal investigation.

"His actions were justified and were not in violation of rules and policies," Nueces County Sheriff's Office Chief Deputy John Galvan said.
In that story, we get this tidbit:
During a video taped interview with a sergeant before the internal affairs investigation one officer changed his account after watching video of the incident. The sergeant tells the officer his actions were inappropriate and asks him if he still feels like he is the victim, to which he answers "no."

Twice, Sergeant Marilyn King asks the officer if he assaulted Gonzales. The officer answers "yes" both times.

"I don't feel like I was the victim," the officer said.
So the correctional officer admitted he was not the victim of an assault, as he'd claimed in an official report, and that in fact he'd assaulted the inmate. But the Sheriff's department cleared him of any wrongdoing, and so far the DA's office has not indicted him.

At least, unlike in the Carlos Flores case, prosecutors vetted the evidence and outed the jailer's assault before forcing Gonzales to plea bargain to a crime he didn't commit. Thank heaven for small blessings.

Tuesday, December 15, 2015

Monday, December 14, 2015

Forensic commission praised over bite-mark review

The Texas Forensic Science Commission received national kudos in Saturday's New York Times ("Lives in Balance: Texas leads scrutiny of bite-mark forensics") for its review of flawed bite-mark testimony and other questionable forensics. Grits readers have heard most of it before, but here are a few notable tidbits:
Forensic science more broadly is in turmoil as prosecutors, defense lawyers and judges confront evidence that many long-used methods, like handwriting analysis and microscopic hair comparisons, were based more on tradition than science and do not hold up under scrutiny. Even fingerprint and certain kinds of DNA matches are not quite as certain as many once believed, scientists say

But no lingering technique is under stronger attack than the analysis of purported bite marks, a method first thrust into fame in the televised trial of Ted Bundy in 1979.

The Texas agency has won national praise for its examinations of the reliability of all sorts of forensic methods and testimony. Initially it responded to complaints about evidence in individual criminal cases. It has moved on to also evaluate whole fields, like bite-mark matching.

“Some aspects of forensic science have never been validated,” said Vincent Di Maio, a retired doctor and medical examiner who has been chairman of the Texas commission since 2012. “That’s a problem that had to be addressed, and nobody else was going to do it for us.”

The commission’s recommendations, expected in February, will be the first formal finding by any state or federal agency on the validity of bite-mark evidence, said Chris Fabricant, the director of strategic litigation at the Innocence Project. He added that they might help speed up inquiries into hundreds more convictions around the country as well as discourage dubious testimony in the future.
Texas Monthly's Michael Hall has been nosing around a story on the Forensic Science Commission for the past few months which will give the agency an even higher profile in the coming year. Yes, they have their critics. And some of them inevitably show up in the comments on Grits whenever they're mentioned to flame them for all they haven't done. But what the have done IMO has been impressive, especially for a small, understaffed agency, and their policy of individual case reviews to identify discredited testimony in un-validated disciplines is light years ahead of what's going on in other states, or for that matter at the federal level.

Sunday, December 13, 2015

Senate hearing to consider alternative to driver surcharges

In January, the Senate Transportation Committee will hold a hearing on two topics: Evaluating the state vehicle inspection program and including an interim charge to "Evaluate the necessity of the Driver Responsibility Program and make recommendations for alternative methods of achieving the programs objectives."

The "alternative methods" language is encouraging. Interim charges on the House side before last session contemplated only mild tweaks to the Driver Responsibility surcharge, when really what's needed are "alternative methods of achieving the programs objectives," to the extent anyone can define them beyond "mulcting drivers for excessive fees."

How many TDCJ inmates were 'improperly charged'?

According to page 10 of TDCJ's latest Ombudsman's report from 2014, 379 inmates that year complained to the agency to say they were "improperly charged." Of those, 117 were "Investigated - no corrective action necessary." Only one was listed as "Request approved /Corrective action taken"; three more saw "Some corrective action." The rest resulted in variety of different, mostly inconclusive outcomes. It sure would be interesting to see an independent evaluation of TDCJ inmates' claims that they were improperly charged. One imagines TDCJ's review is fairly pro forma. Grits suspects there may be potential innocence claims among that group or other claims which could be successfully raised in habeas corpus writs - comparable, perhaps, to parolees improperly categorized as sex offenders - if those inmates had access to counsel.

Gentle readers, if you had to guess, what do y'all suspect is going on in those cases?

Friday, December 11, 2015

John Bradley suspended from Palau AG post for insubordination

Former Williamson County District Attorney and Texas Forensic Science Commission Chairman John Bradley - who left Texas to become Attorney General of the island nation of Palau after facing national disapprobation, losing reelection, and struggling to find work in Texas as a prosecutor - has been suspended "for ten working days without pay on grounds of insubordination" by Palau's Vice President, reported Pacific Beat.

In response, according to this source, Bradley issued a statement declaring the VP had no authority to suspend him, defending his record in Texas, suggesting the veep committed a felony by suspending him, and threatening a defamation suit.

Some people seem to make friends wherever they go.

This is vintage John Bradley; our man appears in top form.

The President, who is out of the country, was quoted as saying he hadn't reviewed Bradley's suspension but expected the vice president's decision was made in the "best interest of the Republic."

For more on John Bradley's time in Palau, check out this article describing abysmal solitary confinement conditions he defended unsuccessfully against a habeas writ on behalf of the Palau government. The solitary cell in question was in “near total darkness” and “strewn with trash…dank wet magazine pages, and soiled clothes.” In addition, "Water bottles filled with urine were also found in the cell," and “the stench of urine and feces was described as 'overpowering.'” From this perhaps we gain greater insight into why Palau would hire JB in the first place: If you're looking for someone to walk into court and defend that, it requires a certain mentality.

MORE: Via Mark Bennett, check out a cartoon from a Palau newspaper dubbing JB the "Texas Rattlesnake."

John Bradley is the Palau AG
UPDATE: From the Austin Statesman: Bradley says he was not suspended, because in his view the vice president doesn't have that authority, but instead he is simply on vacation with his family in Australia. Top form, I tell you.

Thursday, December 10, 2015

Do Big Cases Make Bad Decisions? (Or, a Sentinel Event for the HCDA)

It's an old saw in the legal profession that "bad facts make bad law."  It might also be true that "big cases make bad decisions."  Criminal trials are always high-stakes endeavors for the concerned parties, but where the charges are politically sensitive, or the defendant unusually powerful or well-connected (i.e., the antithesis of the ordinary criminal defendant), the imperative of prosecutorial victory is heightened, the sense of prosecutorial isolation and embattledness is exacerbated, and the already-fraught counterweight of a duty to "do justice" is put under more extreme pressure.  That set of dynamics might partially explain some of the blockbuster episodes of prosecutorial overreach that captured public attention over the past decade.  Think, e.g., Alaska Senator Ted Stevens, whose saga actually inspired the introduction of federal legislation to broaden criminal discovery.  (Not that anything came of it.)  Or the infamous Duke Lacrosse cases.

Maybe a similar set of dynamics was at play in Houston last month during the trial of Robert Joseph Yetman, the Houston physician accused of fondling a child he had treated.  Trial judge Stacey Bond granted Yetman's request for a mistrial after one of the Harris County assistant district attorneys trying the case made comments suggesting that the white Yetman had targeted the young African-American victim because of the latter's race.  But the judge went further, issuing a detailed opinion making the rather extraordinary finding that both trial prosecutors had engaged in a pattern of improper behavior designed to "goad" the defense into putting a halt to the trial.  In essence, the ruling accuses the state of trying to pull the plug on a trial that they thought they were going to lose, so that they could get another bite at the apple.  Based on that finding, the judge ruled that Harris County wouldn't be able to retry Yetman.

I call the ruling "extraordinary" because it is so unusual for a court to bar retrial based on this "intent to goad" standard, a quirky rule of constitutional double jeopardy that presents a nearly insurmountable hurdle of proof for defendants.  In fact, I came across this case because I just finished teaching the "intent to goad" standard and puzzling with my students over the difficulty of meeting it. Sure enough, one of the students emailed me the next day to say he had found the Yetman ruling online.   (Thanks, Nick Willingham.)

The Houston Chronicle's story on the ruling states that the HCDA Office's position on the ruling is that it's wrong, wrong, wrong, and that they will appeal.  Fair enough.  In fact it might well be that the judge erroneously determined that the array of instances in which the prosecutors in the case disregarded her rulings and admonitions reflected concern that the jury would acquit and a desire for a do-over.  But if that's not what the trial prosecutors had in mind, what the heck were they thinking?

The trial court's ruling describes a "heated" trial in which the prosecutors were repeatedly at odds with their own witnesses and were visibly "frustrat[ed]" and "irritat[ed]."  Perhaps it's a classic instance of zealous advocacy and tacking close to the wind, mixed with worn-down humans exercising compromised judgment.  (For that matter, Judge Bond might have been plenty worn down herself.)  But regardless of whether the HCDA determines that there is room to argue with the legal ruling such than an appeal is warranted, supervisors in the office ought to be following up on whether and why these experienced lawyers' zealous advocacy crossed the line.

Moreover, they should do so not because the lawyers engaged in "misconduct" (again - I'm open to the possibility that the trial court is wrong here), but because a bad outcome occurred and there is undoubtedly a variety of individual and system factors within the control of the HCDA that contributed to it.  Am I calling Judge Bond's ruling a "sentinel event"?  Yup.  How refreshing it would be if the adversary legal response weren't the only one.

RELATED: From Murray Newman.