Austin may follow Houston, SA, creating non-jail alternative for public intoxication

At the Austin Statesman, Eric Dexheimer and Tony Plohetski report on a plan to reduce arrests for public intoxication by creating place downtown for folks to sober up without taking them to jail ("Austin officials move to decriminalize public drunkenness," March 9). The story opens:

Getting arrested and criminally charged with public intoxication in Travis County — a common sight on Sixth Street as bars close for the night and the foundation for an entire subspecialty of legal representation — might soon be a thing of the past.

An effort by an array of criminal justice, law enforcement and medical officials is underway to open a sobriety center — “drunk tank” to many — that would effectively decriminalize public intoxication, which over the past five years has resulted in about 27,000 arrests in Austin, or about 10 percent of all arrests. As in other criminal cases, those charged with public intoxication are currently taken to jail, fingerprinted, have their mug shots taken and face future court hearings and costs.

Under a new plan, however, police would only detain intoxicated suspects and take them to the center. Offenders would face no criminal charges and would be free to leave the facility with no additional consequences after becoming sober.

Supporters have advocated for a noncriminal approach to public drunkenness in Austin for more than a decade, noting that criminally prosecuting such cases is expensive and does little long-term good.

“I think many people recognize that substance use is a problem in our community, but jail doesn’t solve that problem specifically,” said Travis County Court-at-Law Judge Nancy Hohengarten, who is helping lead the effort. “I do not see where incarcerating them has led them to quit abusing alcohol.”

She noted that such centers in other cities serve as a first stop for substance abuse counseling, encouraging some repeat offenders to enter into long-term sobriety programs.

Grits likes the idea: Cheaper than jail and prosecution, lets police officers get back to their duties more rapidly, and reserves incarceration for more serious offenses. Houston opened a similar sobriety center last April and San Antonio has operated one since 2008, reported the Statesman, so their experience can inform the design and processes for this project. It's likely to face a NIMBY reaction when they identify a site, but the drunks are already downtown, anyway. Personally, I don't see a downside. Kudos to Judge Hohengarten for spearheading the plan.

Austin PD put on pyrotechnic show for private intelligence firm Stratfor

The Austin Chronicle has a brief story based on emails leaked in 2011 about links between the self-described private intelligence firm Stratfor and the Austin PD, whose bomb squad apparently put on demonstrations for the company and accidentally started a pair of brush fires in the process during one of Austin's "burn bans" three ago. See also the Chronicle's earlier coverage and a Grits post detailing the company's close ties to Texas Department of Public Safety muckety mucks. An Aug. 2012 Wired magazine article ("Trapwire: It's not the surveillance, it's the sleaze") revealed that the company used its high-level Texas DPS connections to convince the agency to install an expensive surveillance tool called "Trapwire" along the Texas border for which Stratfor got a cut for referrals.

Innocence Project of Texas: 'Why I do this work'

My employers at the Innocence Project of Texas have been publishing short essays from staff and attorneys on their website on the topic of, "Why I do this work." Check them out. And if you're interested in supporting the group, go here to donate.

I was asked to write one which will go up soon, but the essays already published I thought were pretty darn compelling.

Cops to parents: Scaring your kids is our job

Via the Dallas Police Association's Twitter feed:

Gee, I wonder where kids might get that idea?

Of course, as this lawyer points out, "The law in Texas is that if you are over the age of 21, you can LEGALLY drink alcohol and drive all over town, as long as you are not intoxicated." And the probability of being arrested even if you are legally intoxicated is about one in 200. But just because the government misleads the public with threats of jail doesn't mean parents should follow suit, does it?*

* Ed note: Don't drive drunk, or lie to your kids.

Williamson County man actually innocent of drug possession where lab found no drugs existed: Habeas relief granted

Actual innocence claims come in a variety of stripes. Joey Ray Carabajal was convicted in Williamson County of possession of a controlled substance and sentenced to two years imprisonment. In an opinion issued February 26, the Court of Criminal Appeals granted habeas corpus relief, declaring:

After Applicant pleaded guilty and was sentenced, a lab report from the Department of Public Safety revealed that the substance Applicant possessed contained no controlled substances. Applicant alleges that the lab report shows that he is actually innocent of possession of a controlled substance.

The trial court determined that the lab report shows that the "thick purple liquid" Applicant possessed contained no controlled substances. The trial court concluded that Applicant established by clear and convincing evidence that no reasonable trier of fact would have convicted him in light of the new evidence, which demonstrates that he is actually innocent. The trial court recommends granting relief and the State does not oppose granting relief. Applicant is entitled to relief.

Maybe prosecutors ought to actually have the drugs tested before shipping defendants off to prison.

Roundup: Justice economics, pot politics, Taser policies, and the real border security issue

Here are a few items that haven't made it into their own individual posts but deserve Grits readers' attention:

The real border security issue
Newspaper Tree has an excellent discussion of the real border security issues facing the state which are almost wholly ignored by xenophobic rhetoric on building walls, boosting the Border Patrol, DPS roadblocks in the Rio Grande Valley etc.: Texas-based prison gangs acting as soldiers for drug cartels on the Mexican side of the river. Grits has argued that the overwhelming majority of "spillover violence" is southbound, with Texas prison gangs committing crimes in Mexico, not the other way around.

Penny wise and judicially foolish
The Dallas Observer's Unfair Park blog has a telling discussion of a local, Democratic judge with a remarkably myopic focus on collecting court costs. In one example, she refused to take a plea deal because a prostitute couldn't pay $267 in court costs. But if jail costs are, say $50 per day, she'd cost taxpayers more than that in just one week. The judge bills herself as thrifty in her campaign materials but in reality she's squandering county tax dollars based on arrogance, ignorance, or both - almost the definition of "penny wise and pound foolish." I wonder if her court is producing written bills of cost for those court courts, or if the fees are being illegally collected as in some other jurisdictions?

Keller and Bethke on indigent defense
See a recent column in the SA Express News by Texas Court of Criminal Appeals Judge Sharon Keller and Indigent Defense Commission chief Jim Bethke titled "Innovation in indigent defense makes for smart justice." A notable quote: "Protecting the rights of the accused is not the only reason prompt appointment of counsel is important. When appointment of counsel is not prompt, cases take longer to adjudicate and nonviolent defendants who might otherwise qualify for release remain in jail, which leads to rising costs that are shouldered entirely by county taxpayers." They also discuss a new "client choice" model for indigent defense being piloted in Comal County.

More scrutiny on Taser use by Austin PD
Austin police are instituting more thorough reviews when officers use Tasers, reported the Austin Statesman (March 2):

An American-Statesman analysis two years ago found the Austin Police Department’s use of the stun guns — also known as electronic control weapons — had more than doubled in three years. In 2011, officers used the weapons an average of 1.3 times a day. The dramatic increase came as other Central Texas police departments’ use of them remained flat.

Starting this month, an officer’s entire chain of supervisors will review every stun gun deployment, as will an independent, internal use-of-force review board that will look for any trends that should be corrected. The board also is tasked with suggesting any policy changes to [Chief Art] Acevedo.

In the past, a Taser deployment was reviewed only by an officer’s supervisors, who were immediately called to the scene where a Taser was used.

Debating Deportation: Most jails see reduced costs from immigration detainees
Immigration detainers for inmates held in Texas county jails under the federal "Secure Communities" program have decreased slightly, reported the Texas Tribune, while in Travis County participation in the program became a campaign issue at the Commissioners Court. Most deportations from Secure Communities in Travis County stem from misdemeanors, including low-level Class C offenses. Interestingly, Dallas County was the only large jurisdiction, according to the Trib, where deportations under Secure Communities has been increasing recently, and fairly dramatically.

Marijuana Policy Project hires former police union lobbyist
The Austin Chronicle has an item on the Marijuana Policy Project's new push in Texas to reform marijuana laws:

MPP rolls out its efforts March 1, with the hiring of lobbyist Randal Kuykendall (of Congress Avenue Consulting, and a veteran lobbyist for the Texas Municipal Police Association, among other law-enforcement and related entities) and a commitment to spend $200,000 a year to push for change. The group will work with criminal justice reformers and organizations from across the state, [MPP executive director Rob] Kampia said, and in 2015 intends to have introduced "three perfect bills" – one each addressing decriminalization, medical marijuana, and legalization – "and we'll see how far each of the three bills go," he said. "Maybe all three don't pass in the first session, but I know there is a lot of energy behind these bills."

There also seems to be a considerable base of support, among both Republicans and Democrats, according to a poll MPP commissioned of Texas voters in late Sep­tem­ber 2013. That poll, conducted by Public Policy Polling, reveals broad support among men and women of both parties for legalization of medical marijuana and for pot decriminalization – 67% of Democrats support legal medi-pot as do 50% of Repub­licans, while 66% of Democrats and 55% of Republicans support decriminalization of possession of up to one ounce of pot. As for legalization, 70% of Democrats "strongly" or "somewhat" support a measure like that which passed in Colorado, while 48% of Republicans said the same. Those are numbers MPP can work with, Kampia said.

As Grits noted recently, to me the measure with the most oomph at the Texas Lege right now would be "keeping marijuana illegal but reducing criminal penalties for low-level possession from a Class B misdemeanor to a Class C. Such bills passed out of the House Criminal Jurisprudence Committee in 2005 and 2013 but never received a floor vote." Under such a proposal, "not only would counties not incur costs for jail and lawyers for the indigent, both cities and counties would get a new revenue stream from Class C tickets paid."

Lamest excuse ever for concealing cell-phone surveillance from judiciary
Reported Wired magazine, "Police in Florida have offered a startling excuse for having used a controversial 'stingray' cellphone tracking gadget 200 times without ever telling a judge: the device’s manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts." See earlier Grits coverage of stingray devices. MORE: A Wired followup has details on the non-disclosure agreement language, in which police departments promise to help the company evade compliance with open records requests.

Official: Millions in court costs illegally collected, probations wrongly revoked, based on new CCA opinion

The Texas Court of Criminal Appeals this week issued an odd and confusing opinion in a case styled Johnson v. State which was covered earlier on Grits, overturning the lower court's ruling that a defendant should not have to pay $234 in court costs because Harris County had never issued a written "bill of costs" as required under the statute.

The CCA ruled against Mr. Johnson because belatedly during the appellate process Harris County came up with a written bill of costs for this one case, though the county does not routinely produce them in other cases. The court made a hair-splitting distinction between costs that are "payable" vs. costs which are merely "assessed." Under this ruling, court costs may be "assessed" without a written bill of costs, said the court, but they are not "payable" until the defendant receives written documentation.

The CCA declared: "Article 103.001 [of the Code of Criminal Procedure] appears to act as a prohibition on the ability of designated state agents from collecting nonpayable, but assessed, court costs." So, according to this decision, a bill of costs is necessary before the government can "collect" any money from a defendant. Got it? Judges can "assess" court fees without a written bill of costs, but counties can't collect the money.

Ted Wood, the Assistant General Counsel for the Office of Court Administration (OCA), explained the implications to your correspondent thusly via email:

the collection of court costs by the government from  those defendants who have never received a bill of costs appears to be improper.  It's arguably a deprivation of property without due process of law as prohibited by the Fifth Amendment.

The same idea could apply to persons who have had their probation revoked for the nonpayment of court costs.  In the absence of a bill of costs, according to the Johnson opinion's reasoning, the probationers weren't obligated to pay the money because no government actor could collect it.  Their probation revocations by the court could be suspect.

So the CCA opinion has resulted in Mr. Manley Johnson owing the $234 assessed against him (because a bill of costs was eventually produced -- albeit late in the game).  But the repercussions could be substantial.

The bottom line is this:  If you've been ordered to pay court costs but no bill of costs has been produced, you don't owe the money. Why?  Because the government is prohibited from collecting it from you.  And if you have already paid the money in the absence of a bill of costs, the collection of the money by the government was arguably unconstitutional.

If that interpretation is accurate, Harris County may have won the battle over court costs but egregiously lost the war. Again from Mr. Wood, in response to Grits' followup questions:

The opinion is not conducive to judicial economy. Here is what we may see:

(1) Individuals in TDCJ who have never been presented with a bill of costs and who have had money withdrawn from their inmate accounts will be able to challenge the withdrawals in civil proceedings.  This is because the government was prohibited from collecting this money.

(2) Defendants who are assessed court costs (even if there is a bill of costs) will be able to challenge the assessments via "correction-of-costs" motions. See CCP, art . 103.008.  These "corrections" are to be made by "the court in which the case is pending or was last pending."  That court could be a court of appeals or even the CCA.  For example, the last court in which Johnson and Cardenas were pending is the CCA.  I wonder how the CCA will handle these motions in light of the "last pending" language. Will the CCA handle these motions itself?  Will the CCA conduct a hearing in which evidence can be introduced?  These questions were among the grounds on which the CCA granted review in Cardenas [ed. note: a companion case decided the same day as Johnson].  But then the opinion declined to address them.  

Note that the Cardenas opinion says "[c]onvicted defendants have constructive notice of mandatory court costs set by statute and the opportunity to object to the assessment of court costs against them for the first time on appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal Procedure."  The Cardenas opinion goes on to say that these appeals and Article 103.008 proceedings are what satisfies a defendant's "right to due process of law" in regard "to notice and an opportunity to be heard regarding the imposition of court costs."  So what the CCA effectively did is say that there was no problem that Mr. Johnson and Mr. Cardenas were unable to challenge the court costs assessed against them in the trial court because they can always come back and challenge the costs later.  An alternative approach would have been to make sure a bill of costs exists at the time the defendant is being sentenced so as to not necessitate an entirely new level of court procedures to evaluate whether the amount of assessed court costs is correct.

(3) Defendants who had their probation revoked for non-payment of court costs and who have never received a bill of costs appear never to have owed the money. There could be legal challenges in regard to these revocations.

(4) Defendants who were ordered to pay court costs in the absence of a bill of costs and who did make their payments to government agents (who according to the Johnson opinion were prohibited from collecting the payments) may seek a civil remedy ...

While the CCA preserved the assessments of the $234 in Johnson and the $294 in Cardenas, the result seems to be that millions of dollars in court costs could now be considered to have been improperly collected.  Additionally, the case may have given rise to a real a logistical dilemma for handling of future court cost challenges.

Bottom line, said Wood, "If a person has paid court costs and there was no bill of costs, then, according to the Johnson opinion, the government was actually prohibited from collecting the costs. This would seem to even include traffic cases in the justice and municipal courts - 93% of court cost revenue comes from these Class C misdemeanor courts. So even people who have only been convicted of speeding and similar minor crimes could seek reimbursement of their court costs."

In other words, the Court of Criminal Appeals has created an enormous clusterf#%k that's almost certain to generate waves of litigation and likely will necessitate legislative intervention when the 84th session convenes in 2015. Wood believes the preferable solution would be to require a written bill of costs to be produced at the time of sentencing, comparing the process to routine consumer purchases:

I have compared the bill of costs in some of my writings to getting a receipt at the grocery store that details one's purchases. If I am charged for two gallons of milk when I only bought one, then I can point out the problem and the bill can be corrected.  If I am charged 79 cents per pound for bananas when the sale price was 39 cents per pound, I can look at my receipt and get this corrected.  What if I didn't get a receipt at the grocery store?  Then how would I even know that I had been overcharged?  Yet in our court system, when there is no bill of costs there is no way to identify an overcharge. And mistakes and overcharges are common. I have argued that the court system ought to be at least as assiduous as HEB when it comes to assessing court costs.

The OCA is presently in the process of reformulating Texas' model felony judgment forms as required under Article 42.01, Section 4 of the Code of Criminal Procedure, a process Mr. Wood is spearheading for the agency. The new forms will be finalized this spring with advice and input from a diverse stakeholder group, so we should have a clearer picture within the next few months of what impact these decisions will have on the ground. In the meantime, though, the Court of Criminal Appeals appears to have created far more problems with the Johnson decision than it resolved.

Texas' new junk science writ called 'elegant' and 'phenomenally important'

The Atlantic has a story ("In Texas, a New Law Lets Defendants Fight Bad Science," Feb. 28) about SB 344 by Texas state Sen. John Whitmire, which created a procedure to challenge convictions based on junk science via the habeas corpus process.  The article concludes:

Mike Snedeker, president of the non-profit National Center for Reason and Justice, described the new law as “elegant and straightforward, and “phenomenally important,” not the least because it clarifies and builds on existing due process rights. In theory, defendants should always be able to bring a writ of habeas corpus on the grounds of new information; in practice, however, outside of cases involving DNA evidence, it’s difficult to do this.

“You could say that the principles it embodies are already part of the federal constitution, but that’s sort of a fuzzy document and the judges that enforce it are distant… They don’t have nearly the credibility that a law passed by your own state has,” said Snedeker. “[The law] makes it clearer, it makes it definite, not an arguable constitutional principle, but rather it’s a state statute that clearly describes when and how you can challenge a conviction based on evidence we now know to be wrong.”

The new statute offers another kind of clarity: “It’s important because a lot of really shaky evidence is clothed in objectivity,” said Snedeker, noting the incalculable impact expert testimony can have on a juror’s decision-making—especially expert testimony characterized as scientific or medical. “Our priests now are scientists, doctors,” said Snedeker. By giving defendants a way to question the sacrosanctity of scientific testimony, the court recognizes that science and medicine are mutable and continually evolving. ...

There is, however, one important thing the new statute can’t do: keep bad science out of the courtroom in the first place. Expert witnesses can still draw dubious conclusions about blood spatter patterns, employ much-contested approaches like dog scent line-ups, or try to divine an alleged arsonist’s intentions based on “crazed glass” patterns in windows. This makes Keith Hampton, a lawyer for the Kellers who used the statute in their habeas corpus writ, only cautiously optimistic about the new law. “A junk science bill that I would get most excited about is the one that prevents junk from coming into the court room in the first place,” he said. “And this absolutely does not, that’s plain. It’s put in the post-conviction chapter in the code of criminal procedure.”

But Snedeker is nevertheless hopeful that the law will influence how cases look in the future. “I think it will definitely make prosecutors think twice,” he said.

And ultimately, he’s impressed: “I’m just stunned, [because] I never thought there would be a time in my life when Texas would be a beacon of legal progress.”

Go here to view written testimony submitted by your correspondent to the Texas House Criminal Jurisprudence Committee on behalf of the Innocence Project of Texas in support of SB 344.

Private prison roundup

Here are a number of private prison related items that deserve Grits readers' attention:

• Texas Prison Bidness: Geo's Karnes County Correctional Center found out-of-compliance for overcrowding, understaffing
• Texas Prison Bidness: Johnson County to foot bill for expanded LaSalle Southwest Immigration detention center?
• Texas Prison Bidness: GEO Group expands Laredo Detention Center by 400 beds for immigrant prisoners
• Texas Prison Bidness: Detention Watch Network: Canadian National dies at Houston Processing Center 
• Think Progress: GEO Group agrees to nationwide settlement after widespread claims of violence
• Politico: The Private Prison Racket: Companies that manage prisons on our behalf have abysmal records. So why do we keep giving them business?

Willingham prosecutor allegedly failed to disclose jailhouse snitch deal

The New York Times this week (Feb. 27) published an article on the Todd Willingham case casting doubt on the credibility of a jailhouse informant who provided the only evidence besides flawed arson science suggesting that Willingham, who has since been executed, set the fire that killed his three children. Reported the Times' John Schwartz:

Mr. Willingham was convicted on charges of setting the 1991 fire in Corsicana, Tex., that killed his three children, and was sentenced to death the next year. The conviction rested on two pillars of evidence: analysis by arson investigators, and the testimony of a jailhouse informant, Johnny Webb, who said that Mr. Willingham had confessed the crime to him.

The arson investigation has since been discredited; serious questions were raised about the quality of the scientific analysis and testimony, which did not measure up to the standard of science even at the time. But the prosecutor who led the case shortly before Mr. Willingham’s execution argued that even though the arson analysis had been questioned, the testimony of Mr. Webb should be enough to deny any attempt for clemency.

In recent weeks, as part of an effort to obtain a posthumous exoneration from the Texas Board of Pardons and Paroles and Gov. Rick Perry, lawyers working on Mr. Willingham’s behalf say they have found evidence that Mr. Webb gave his testimony in return for a reduced prison sentence. Evidence of an undisclosed deal could have proved exculpatory during Mr. Willingham’s trial or figured in subsequent appeals, but Mr. Webb and the prosecutor at trial, John Jackson — who would later become a judge — explicitly denied that any deal existed during Mr. Webb’s testimony. ...

The Innocence Project also contends that prosecutors suppressed an effort by Mr. Webb to recant his testimony. ...

What has changed is that investigators for the Innocence Project have discovered a curt handwritten note in Mr. Webb’s file in the district attorney’s office in Corsicana. The current district attorney, R. Lowell Thompson, made the files available to the Innocence Project lawyers, and in late November one of the lawyers, Bryce Benjet, received a box of photocopies.

As he worked through the stack of papers, he saw a note scrawled on the inside of the district attorney’s file folder stating that Mr. Webb’s charges were to be listed as robbery in the second degree, not the heavier first-degree robbery charge he had originally been convicted on, “based on coop in Willingham.”

Flawed forensics and prosecutorial misconduct are a potent mix. No one will ever know for certain whether Todd Willingham was innocent or guilty - one can't prove a negative - but it's pretty certain at this point he should never have been convicted in the first place.

Police surveillance at schools: Doubling down on stupid

"Selective ignorance, a cornerstone of child rearing. You don't put kids under surveillance: it might frighten you. Parents should sit tall in the saddle and look upon their troops with a noble and benevolent and extremely nearsighted gaze."

- Garrison Keillor

In Austin, "Currently, police are working on getting access to the Austin Independent School District's campus cameras. That way school video would feed directly to the Crime Center," reported KEYE-TV. Further, "The chief also wants to access traffic cameras to see crashes, as well as join existing public cameras around town, like those outside businesses."

The chief claims cameras are a "force multiplier," but for reasons this blog has discussed before at length, in practice the opposite is true. While Grits is sympathetic with concerns expressed in the KEYE story by privacy advocates, the more compelling reason to oppose mass camera surveillance is that the tactic fails to reduce crime and in fact wastes officers' time that would be better spent on traditional investigations.

Especially in the U.K., where cameras are ubiquitous, there's been a great deal of research documenting where cameras actually reduce crime, and schools aren't on the list. The public shouldn't oppose camera surveillance (only) because of privacy concerns, but mainly because it's an ineffective tactic that empirically doesn't work.

Via Pogo Was Right.

Currently, police are working on getting access to the Austin Independent School District's campus cameras. That way school video would feed directly to the Crime Center.

Read More at: http://www.keyetv.com/news/features/top-stories/stories/apd-plans-expand-police-cameras-16411.shtml

Currently, police are working on getting access to the Austin Independent School District's campus cameras. That way school video would feed directly to the Crime Center.

Read More at: http://www.keyetv.com/news/features/top-stories/stories/apd-plans-expand-police-cameras-16411.shtml

Selective ignorance, a cornerstone of child rearing. You don't put kids under surveillance: it might frighten you. Parents should sit tall in the saddle and look upon their troops with a noble and benevolent and extremely nearsighted gaze
Read more at http://quotes.dictionary.com/Selective_ignorance_a_cornerstone_of_child_rearing_You#qLlZakEymvaiG5ji.99

Selective ignorance, a cornerstone of child rearing. You don't put kids under surveillance: it might frighten you. Parents should sit tall in the saddle and look upon their troops with a noble and benevolent and extremely nearsighted gaze.

Read more at http://quotes.dictionary.com/Selective_ignorance_a_cornerstone_of_child_rearing_You#qLlZakEymvaiG5ji.99

Selective ignorance, a cornerstone of child rearing. You don't put kids under surveillance: it might frighten you. Parents should sit tall in the saddle and look upon their troops with a noble and benevolent and extremely nearsighted gaze.

Read more at http://quotes.dictionary.com/Selective_ignorance_a_cornerstone_of_child_rearing_You#qLlZakEymvaiG5ji.99

Selective ignorance, a cornerstone of child rearing. You don't put kids under surveillance: it might frighten you. Parents should sit tall in the saddle and look upon their troops with a noble and benevolent and extremely nearsighted gaze.

Read more at http://quotes.dictionary.com/Selective_ignorance_a_cornerstone_of_child_rearing_You#qLlZakEymvaiG5ji.99

Selective ignorance, a cornerstone of child rearing. You don't put kids under surveillance: it might frighten you. Parents should sit tall in the saddle and look upon their troops with a noble and benevolent and extremely nearsighted gaze.

Read more at http://quotes.dictionary.com/Selective_ignorance_a_cornerstone_of_child_rearing_You#qLlZakEymvaiG5ji.99

Drone Civil Disobedience?

Image via Wikipedia

Regular readers will recall Grits was no great fan of Texas' new statute regulating unmanned aircraft passed in 2013, which is so poorly written that nobody including police and prosecutors really have a clue what's legal or illegal. So I had to laugh when I saw that MAKE magazine is sponsoring an event during SXSW dubbed a "Fly-in" (like a "sit-in" in the sky) that, I suppose, could be viewed as a de facto act of drone-based civil disobedience.

Texas' new law stipulates that "A person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image." The term "surveillance," though, is undefined in the statute. Most of these unmanned aircraft will inevitably be equipped with cameras that may capture "an image of an individual or privately owned real property" as they fly around. But while there are many exceptions in the statute to for law enforcement, utilities, oil and gas companies, etc., there's no exception for simple hobbyists like most of the folks who'll be attending the SXSW event.

I doubt law enforcement will come out to arrest DIY drone flyers at the Austin "Fly-in," but the fact that in theory they could shows why the statute was misguided, over-broad, and premature. When the law passed at the Texas Legislature, prosecutors predicted no one would ever be charged under it because the statute is too vague and contains many, often confusing caveats and exceptions that no one - either in the public or among law enforcement - really understands.

Arguably, DIY drones aren't engaging in "surveillance" but "sousveillance," or the recording of an activity by a participant in that activity. Texas' statute doesn't make such a distinction, but the realities of unmanned aircraft and the rapidity of their adoption for innumerable legitimate uses, many of which involve photography, show why the law as written really isn't ready for prime time.

Court of Criminal Appeals bars warrantless searches of cell phones, electronics incident to arrest

The Texas Court of Criminal Appeals today held in Texas v. Granville that the Fourth Amendment protects against searches of cell phones incident to arrest. Texans now cannot have the contents of their cell phones and other electronic devices searched indiscriminately after they’re booked in jail. This was a major privacy and Fourth Amendment victory, once again putting the state at the forefront of electronic privacy issues nationally.

As an attorney friend described the ruling in an email, "The primary issue was whether the Fourth Amendment exception that allows searches of an arrestee’s property for contraband also allows a wholesale search of a cell phone. The decision has a good explanation about why modern technology requires heightened protection above that applied to shoes, pants, etc.  The decision even cites with approval the recent DC Circuit decision holding the NSA metadata collection program unconstitutional." Here's an notable excerpt from the majority opinion:

The term "papers and effects" obviously carried a different connotation in the late eighteenth century than it does today. No longer are they stored only in desks, cabinets, satchels, and folders. Our most private information is now frequently stored in electronic devices such as computers, laptops, iPads, and cell phones, or in "the cloud" and accessible by those electronic devices. But the "central concern underlying the Fourth Amendment" has remained the same throughout the centuries; it is "the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." This is a case about rummaging through a citizen's electronic private effects - a cell phone - without a warrant.

See the majority opinion from Judge Cochran, a concurrence from Judge Keller, and a lone dissent from Judge Keasler.

The US Supreme Court agreed this term to consider similar issues in a pair of related cases. According to Reuters, "The court will hear oral arguments in April and issue rulings by the end of June. The cases are Riley v. California, 13-132 and U.S. v. Wurie, 13-212." The Texas CCA opinion governs state and local law enforcement, not the feds.

RELATED: Amarillo appeals court: 'A cell phone is not a pair of pants.'

MORE: From EFF, which filed an amicus brief in the case.

Half of Texans support legal pot but more likely policy measure left off of poll

According to a new Texas Tribune poll, 49% of Texas voters support legalizing possession of marijuana in small, personal use amounts, while 77% support legalizing it for medical purposes. (See question 46 of the poll here.)

Regrettably, the Tribune did not poll the proposal that's been most frequently bandied around at the Legislature - keeping marijuana illegal but reducing criminal penalties for low-level possession from a Class B misdemeanor to a Class C. Such bills passed out of the House Criminal Jurisprudence Committee in 2005 and 2013 but never received a floor vote. Even so, if 49% of Texans support outright legalization, one imagines even more would support keeping pot illegal but reducing the punishment.

The suggestion to reduce penalties also has practical, economic arguments in its favor. Class B misdemeanors carry with them the possibility of jail time, meaning counties must pay for both pretrial incarceration costs at the jail and attorneys for indigent defendants. By contrast, Class C misdemeanors are typically handled with a ticket and involve no jail time (except for "failure to appear," the same as if you don't pay a traffic ticket). Thus, not only would counties not incur costs for jail and lawyers for the indigent, both cities and counties would get a new revenue stream from Class C tickets paid.

Both times the House Criminal Jurisprudence Committee recommended lowering penalties for low-level marijuana possession, the measure appeared to have enough votes on the floor to pass in the lower chamber. But House leadership, presumably hoping to "protect" members from themselves, wouldn't allow the bills to reach the House floor. Perhaps changing public opinion will allow a different result next session. Not only would it be good public policy - saving money for counties and freeing up police to focus on more serious crimes - but the measure appears to reflect the current zeitgeist among voters, judging from this and other recent opinion polls.

Does excessive use of solitary confinement harm public safety?

There was a hearing yesterday of a US Senate Judiciary Committee subcommittee titled "Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences." Among those giving testimony was Marc Levin of the Texas Public Policy Foundation. See his testimony (pdf), which framed the issue in terms of conservative values:

As conservatives, we are appropriately skeptical of government that is too large, too intrusive, and too costly, and we insist on accountability and transparency. Government is at its most restrictive when it imposes solitary confinement so it is only appropriate that we bring a critical focus to this issue rather than succumb to an out of sight, out of mind mentality. While we recognize solitary confinement is needed in some instances, policies and practices must be implemented to ensure it is not unnecessarily used to the detriment of public safety, taxpayers, and justice.

Levin also honed in on a public safety issue frequently raised on Grits: The direct release of prisoners from solitary confinement onto the street.

While often viewed primarily as a moral issue, solitary confinement has significant implications for public safety. First and foremost, prisons must discontinue the practice of releasing inmates directly from solitary confinement to the public.

A study in Washington state found that inmates released directly from the Supermax prison, which consists entirely of solitary confinement, committed new felonies at a rate 35 percent greater than that for inmates of the same risk profile released from the general population.

Additionally, a greater percentage of the new crimes committed by those released from solitary confinement were among the most serious violent felonies. Despite this finding, many states continue to release inmates directly from solitary confinement, with more than 1,300 such releases in 2011 in Texas alone. In 2013, a Colorado inmate released directly from solitary confinement murdered the state’s director of corrections, Tom Clements. Alarmingly, dating back to 2002, half of those released from Colorado prisons who subsequently committed murder served time in solitary confinement, with some discharged directly to the street. However, as documented below, major changes are underway that are significantly reducing overall solitary confinement in Colorado and those discharged directly from this custody level, with the latter figure falling from 221 in 2004 to 70 in 2013.

The average American may understandably wonder, if an inmate is too dangerous for the general population of a prison, how can they live next to me the next day? While inmates who have served their entire sentence must by law be released , this date is not a mystery to corrections officials. Stepping them down to a lower level of custody at least several months prior to release is not too much to ask.

You can see all the written testimony and view the hearing here. At the Austin Statesman, Mike Ward has a related story ("Will Texas prisons dial back solitary confinement," Feb. 25). Here's a notable excerpt:

Now, at a time when other states are reducing the number of prisoners they keep in solitary confinement, a new move is underway in Texas that could reduce the numbers even more.

Brad Livingston, executive director of the Texas Department of Criminal Justice that operates the 109-prison state corrections system, told the American-Statesman that he expects an ongoing review of solitary confinement policies — known as administrative segregation, or ad seg, in prison lingo — could drop the numbers further. ...

With likely the largest number of convicts in solitary confinement, Texas faces increasing questions over its policies.

Livingston and other prison officials note that more than half of the 7,200 convicts in solitary confinement are housed there because of violent behavior against staff and other prisoners or because they are escape risks. The rest are members of violent crime gangs.

The average stay in solitary confinement in Texas is just under two years, prison statistics show, longer than those in other states.

“The intended use of administrative segregation was to reduce violence on staff and inmates. Unfortunately a reduction in violence on staff has not been the case in Texas since the state greatly increased the use of administrative segregation in the 1990s,” Lance Lowry, a correctional officer who is president of a Huntsville union local for guards, said in testimony submitted to the Senate committee.

“The overreliance on solitary confinement in Texas may be a direct result of lack of trained and experienced staff. … A better-trained and experienced workforce could better manage an increasing mental health population, reducing the overuse of solitary confinement,” he said.

In addition, Lowry and prisoner-rights advocates agree that Texas’ practice of releasing convicts from administrative segregation directly to the streets isn’t a good idea. Advocates have complained that is a sure recipe for new crimes to be committed.

Jason Clark, a spokesman for Texas’ prison system, said that in 2013, 1,243 felons were released directly from solitary confinement to the streets — including 500 who served their entire sentence and 743 who were released on various forms of parole supervision. Statistics weren’t immediately available on how many of those convicts had come back to prison for new crimes.

See more from Lowry on the subject at The Back Gate blog. Also, the state of New York announced an agreement last week limiting the use of solitary confinement, particularly for juveniles, as discussed in detail on the blog Solitary Watch.

The Texas Legislature authorized a study of solitary confinement last session but failed to fund it. One hopes this new round of attention will spur the state to move forward with the study so the Legislature can more substantively address the question in 2015.

MORE: SL&P rounds up more links related to solitary confinement issues. AND MORE: From The Back Gate.

On the relationship between solitary confinement and assaults on prison guards

Might excessive reliance on solitary confinement contribute to serious assaults on prison staff? That's the thesis of union rep Lance Lowry in this item posted yesterday at The Back Gate. Here's a notable excerpt.

The intended use of administrative segregation was to reduce violence on staff and inmates. Unfortunately reductions in violence on staff has not been the case in Texas. Serious staff assaults in Texas has risen with the increased use of administrative segregation. Serious assaults on Texas correctional staff has gradually risen over 104% during the last 7 years. In 2013 over 79% of the 499 reported intentional exposures to bodily fluids occurred in segregated housing areas of the Texas Department of Criminal Justice. None of the exposure assaults involved regular general population offenders.

Most inmates in administrative segregation are often confined to small cells without windows, and little audio/visual stimulation. Such extreme isolation can have serious psychological effects on inmates and can lead to increased aggression towards staff, mental illness, self-mutilation and suicide. Inmates in administrative segregation have little social contact aside from abnormal communications involving yelling at offenders in other cells. Lack of normal social contact breeds increased aggression which increases aggression towards staff who may be the only normal social contact this segment of the offender population has.

Crimjust news and notes

Here are a few items that caught Grits' attention this week but haven't made it into independent posts:

Covering Texas DA's races
See coverage of DA's races in Harris, Dallas, Tarrant, and Bexar Counties.

'Deadly Affection'
The Dallas Morning News this week published an informative series on domestic violence investigations and prosecution.

A local argument against jail privatization
A GOP commissioners court candidate in Liberty County wants the private prison firm Community Education Centers out of the local jail, reported Texas Prison Bidness, to end the "waste of millions of dollars." The county's contract stipulates that per-inmate costs go up when incarceration levels fall, meaning the county continues to pay even when crime falls and they use the jail less.

Special treatment by Tyler police for Smith County official?
Smith County Judge Joel Baker - a member of the State Commission on Judicial Conduct - was investigated by local police for allegedly pointing a video camera at a neighbor girl's window and soliciting contact through messages on an IPad. This blog published the police report and suggested Baker received special consideration.

Student arrested for jaywalking
Apparently Austin police have a lot of extra time on their hands:

According to the Daily Caller and local news, the police had camped on a corner and were issuing jaywalking citations. The jogger came along, wearing earbuds listening to music. That’s common around the university, around the city, around the entire world.

Police ordered her to stop, and she did not hear them and continued jogging. Police then chased her and tried to grab her to get her attention, and she reacted as just about anyone would, and tried to brush them off before realizing that they were police officers. A witness, Chris Quintero, saw the incident and said that it was clear that the woman could not hear the police officers when they first approached her, and reacted to being touched from behind.

Jaywalking is a Class C misdemeanor, not typically an offense that leads to arrest. Police say the jogger was arrested for failure to identify herself and for a traffic signal violation. The arrest is under investigation.

Flawed forensics and 'shaken baby syndrome'
Radley Balko had a piece yesterday on the changing science involved in shaken baby cases and the difficulty courts have reevaluating convictions based on faulty forensics.

'House of Cards' gets it wrong on legal standard for phone surveillance
This blog post explains why.

Secret cell phone tracking
ACLU's Free Future blog had a good post this week about secrecy surrounding cell-phone location tracking by law enforcement.

'The Trials of Dorian Gray'
See an interesting law review article about Oscar "Wilde’s three trials in 1895 served, in effect, as an obscenity prosecution of The Picture of Dorian Gray (1890/91)."

Constitutional or not, court allows registration requirement for sex-offenses predating registry law

The Texas District and County Attorneys Association's weekly case summaries last week described a new Court of Criminal Appeals decision which required sex-offender registration for offenses committed before the creation of the registry. The decision, though, failed to address the question of whether the underlying statute is constitutional, an issue dissenters said they should have confronted. Here's TDCAA's case summary:

Reynolds v. State

No. PD-1369-12                     2/12/14

Issue:
Did the legislature’s 2005 amendments to the sex offender registration statute require a defendant to begin registering even though he was initially convicted in 1990 and had never previously been required to register?

Holding:
Yes. After being convicted in 1990 for sexual assault of a child, the defendant was not required to register as a sex offender when his sentence was complete in 1995. The registration statute was amended multiple times over the next decade, each time with a “savings clause” that clarified the statute was not retroactive as to convictions as old as his. In 2005, the legislature deleted all of the savings clause language. The plain language of the resulting statute requires everyone convicted of a registerable offense after 1970 to now register with DPS. Read the opinion.

Dissent (Price, J.):
The court ruled that a challenge to the constitutionality of the statute based on its retroactivity had not been preserved and did not consider it. The court should have considered the merits of the constitutional challenge and remanded the case to the court of appeals. Read the dissent.

Commentary:
The court does not reach the question of whether it is unconstitutional to retroactively impose a registration requirement upon a sex offender who was not previously required to register. But the prevailing view is that such a retroactive application does not constitute an ex post facto violation. It is also clear that the Legislature’s intent was to require such sex offenders to register.

'The Rising Need for Bilingual Corrections Officers'

Via Ozymandius, citing a new paper from the journal Crime and Delinquency:

personnel in charge of running prisons and jails with large populations of Hispanic inmates must comprender what the inmates are saying.

”There is a demand now really in a lot of places for officers who are bilingual,” explains Ken Kerle, former managing editor of the American Jail Association and the author of a number of books about jails. ”What if you’re a correctional officer running a cell block and everyone is speaking a language you don’t understand? You have to have people linguistically capable of understanding what they are talking about, particularly in an institution.”

This is especially true for states like Texas, Arizona and California. But that doesn’t mean they are the only ones who value bilingual corrections officers. Kerle adds, “Even here in Kansas, our Hispanic population continues to grow.”

Robert Hurst, the public information officer at the Texas Department of Criminal Justice, says it is “absolutely” helpful for officer safety if officers are bilingual. Hurst says his team is always looking for skilled bilingual employees, throughout the entire department.

Illegal prison art: Paños

Really cool story by Michael Hoinski at Texas Monthly on "paños, the handkerchiefs that prisoners decorate with black ballpoint pens or colored pencils—or, in a pinch, with coffee beans, ash, and even egg yolk (it makes a nice yellow color)." They've been outlawed in Texas prisons, but prisoners keep making them and art collectors are snatching them up.

'Dallas Buyers Club' concept metastasizes

Though it may sound like a spin-off of the Oscar-nominated movie Dallas Buyers Club, this PBS News Hour report about the black market in prescription drugs out of Mexico really has more to do with inflated pharmaceutical prices and the failure of states like Texas to expand Medicaid under Obamacare. The story opens:

In borderland Texas, a widespread lack of health insurance is linked to poverty and high rates of diseases such as diabetes, obesity and high blood pressure.

Cheaper prescription drugs to treat these conditions are available across the border in Mexico. But physicians and law enforcement are tracking a relatively new trend — the smuggling of medicine in bulk from Mexico to U.S. patients who no longer feel safe shopping for them in Mexico.

Mexican Pharmacist Jorge Sandoval says people who buy his medicines these days often buy for people they don’t even know.

“There’s a trade in legal prescription medication,” he said in Spanish from his shop in Chihuahua, Mexico, about an hour south of the border. “The trade is generated by people (in both countries) who want to buy medicine at a lower price. People are bringing in ice chests to fill with medicines that they sell to friends and relatives.”

About 24 percent of Texans have no medical insurance, the highest percentage of uninsured in the nation. And although Texas has some of the highest enrollments in the new health care marketplaces created under the Affordable Care Act, the numbers represent a small fraction of the overall uninsured.

That’s one reason why, for years, people have crossed the border for cheaper medicine. The diabetes medicine Metformin is $35 a month here and $15 in Mexico. The blood thinner Coumadin is $60 a month here, $15 there.

But what’s new here is a cottage industry of smugglers buying medicines in bulk to bring back to the U.S.

In the movie Dallas Buyers Club, Matthew McConaughey's character sought out AIDS drugs from Mexico because of approval delays at the FDA. These days, the practice has become more common and generalized, with folks bringing everyday medications into the country illegally because of inflated prices barring access to medication by the uninsured.

When black markets occur for legal commodities - especially ones that don't get you high - it's an indictment of government-sanctioned oligopolies controlling distribution and price. Drug companies on the US side are making a fortune from this over-charging, subsidized by friendly government regulators and now gun wielding law enforcement officers. Don't police have anything better to do than arrest folks for getting legal, prescribed drugs to sick people who need them at a cost they can actually afford?

MA latest state to require warrants for cell-phone location data

The Massachusetts Supreme Court this week ruled that law enforcement in that state must obtain a search warrant to access cell-phone location data for extended periods. The Boston Globe reported:

In 5-2 ruling issued Tuesday, the state’s highest court clarified the issues, providing both a clear definition of the privacy of phone records in the digital age, and also affording prosecutors a road map to using those records in their case against [Shabazz] Augustine. 

The court said it was possible that if the data covered only a short period, then obtaining the records under the federal Stored Communications Act without a search warrant might be acceptable. But it said it was clear that in Augustine’s case, in which two weeks of data was obtained, the period was too long.

“The tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy,” said the Massachusetts court opinion, written by Justice Margot Botsford.

The ruling also makes Massachusetts the latest of several US states to set stricter limits on government access to citizens’ phone records.

Rather odd to suggest that it violates someone's rights to access two weeks of data but not short periods. Basically police can peek in on someone but not stare at them. Another Globe report noted that, "Massachusetts joins New Jersey as one of two states where courts have ruled that phone record searches require a warrant. Maine and Montana have passed legislation to establish the same policy. And before Tuesday’s decision, a Massachusetts legislator, Senator Karen E. Spilka, Democrat of Ashland, filed similar legislation."

The Texas House in 2013 approved an amendment 126-4 requiring Texas law enforcement to get a warrant to access cell-phone location data, but it was stripped out of the version of the bill approved in the Senate. This year, Lt. Gov. David Dewhurst included an evaluation of this and other electronic privacy questions in the interim charge for the Senate State Affairs Committee, so one can expect the matter to be revisited when the Texas Legislature reconvenes in 2015.

RELATED: From the New America Foundation, "The Ever Falling Cost of Surveillance."

Most Texas LEOs have no written policy on no-knock warrants

Most Texas law enforcement agencies do not have written policies regarding execution of no-knock warrants, found a new report from the Texas Civil Rights Project. See coverage from:

• The Bryan College-Station Eagle, and
• The Austin Statesman
• The Austin Chronicle

Reported the Statesman, "The Austin-based group found that “there is a statewide custom of making no-knock entries on less than reasonable suspicion.” Among 161 jurisdictions that responded to the Civil Rights Project’s request for information about specific policies on when an officer can enter a home to execute a warrant without knocking, only 53 said they had written policies, according to the report."

RELATED: Rare self-defense finding by grand jury in no-knock raid resulting in deputy's death.

'Sex offenders and the Farm Bill'

Somehow I'd missed this must-read post (Feb. 7) from the Austin Statesman's Eric Dexheimer about new prohibitions in the federal Farm Bill on sex offenders receiving food stamps, framing the issue with a discussion of a registered sex-offender in Austin seeking licensure as a plumber's assistant. Wrote Dexheimer:

Over the years, government aid programs have banned certain convicted criminals from receiving taxpayer assistance. Convicted drug felons have been prevented from receiving food stamps for nearly 20 years. (Some states have opted out of the restriction; Texas has not.) Same with felons on the lam. And some federal housing programs limit where sex offenders can live.

Agree with them or not, there is a public good argument to be made for each. Drug addicts could use their food stamps to buy drugs. Placing sex offenders in public housing might place other tenants at risk. Extending government aid to wanted criminals could delay their apprehension.

The new restrictions in the Farm Bill, signed by Pres. Obama on Friday, are still being parsed; a spokeswoman for the U.S. Department of Agriculture said the agency is scrambling to figure out which offenders would be excluded from food aid. But at least on the surface, the prohibitions appear to be a departure from the public safety rationale, and more directly punative. (Ironically, due to existing prohibitions on where they live and what work they can find, sex offenders are more likely to find themselves in need of assistance.)

For those in favor of perpetual punishment for sex offenders, it is undeniably true that many will always be terrible people unworthy of any assistance. Yet, as Jason C.'s case against the plumbing board demonstrates, not all of them are.

TDCJ boosts recruitment bonuses at understaffed units

TDCJ has increased recruiting bonuses for corrections officers willing to work in understaffed, rural units, reported the Huntsville Item (Feb. 7):

The Texas prison system has sweetened the pot to attract potential correctional officers to units dealing with staffing problems around the state.

Last month, Texas Department of Criminal Justice Executive Director Brad Livingston approved increasing the recruiting bonus to $4,000 for new correctional officers willing to sign one-year contracts to work at 15 understaffed prisons that are located in rural areas, or in areas competing for jobs with the oil and gas industry.

“The recruitment and retention of correctional officers is a top priority for the agency,” TDCJ spokesman Jason Clark wrote this week in an email. “The recruitment bonus is another tool the agency is using to attract applicants to apply for positions at units that are facing staffing challenges. We understand that the correctional officer position is one of the most demanding jobs in all of state government.

“TDCJ is committed to doing all it can to recruit and retain correctional officers.”

Two of the units where the increased bonus is being offered are near Walker County. The Ferguson Unit in Midway and the Eastham Unit in Lovelady have correctional officer positions that need to be filled. ...

TDCJ is also offering the $4,000 recruiting bonus at the following units: Briscoe Unit in Frio County; Cotulla in La Salle County; Connally Unit in Karnes County; Dalhart in Hartley County; Daniel in Scurry County; McConnell in Bee County; Lynaugh and Fort Stockton in Pecos County; Jordan and Baten in Gray County; Smith in Dawson County; Stiles in Jefferson County; and Wallace and Ware in Mitchell County.

MORE: From the Amarillo Globe News.

Golden State GPS probation failures

Fascinating story today from the Los Angeles Times about the pitfalls of GPS monitoring by probation departments in California. Bottom line: Too much data. Here are some highlights:

The nation's largest probation department strapped GPS ankle monitors on the highest-risk of those convicts, expecting the satellite receivers to keep tabs on where they spent their days and nights, and therefore keep the public safe.

Instead, agents are drowning in a flood of meaningless data, masking alarms that could signal real danger.

County probation officers are inundated with alerts, and at times received as many as 1,000 a day. Most of the warnings mean little: a blocked signal or low battery.

The messages are routinely ignored and at times have been deleted because there were so many, officers say.

Auditors making a spot check last fall found more than a dozen cases in which officers failed to notice that the devices were dead and probationers roamed unmonitored, some for weeks.

"If we keep getting false positives, we're not going to know the real one that means danger," said John Tuchek, a vice president for the Assn. of Probation Supervisors.

California's statewide system for monitoring sex offenders sends out as many as 40,000 alerts each month to state parole agents.

The consequences of ignoring such warnings can be disastrous.

In upstate New York, federal probation officers deluged with false alarms opted to disregard tampering alerts that cleared themselves within five minutes.

Ironically, or perhaps just coincidentally, I had first-hand experience just today that Travis County's probation department experiences similar difficulties with false positives for absconders. I'm guessing this is a generalized issue with the tech, not something specific to California.

DA's files lost in Ed Graf arson case

The McLennan County District Attorney's Office has lost the files from Ed Graf's original trial in which he was convicted based on junk science of murder by arson, the Waco Tribune Herald reported this week (Feb. 12):

Prosecutors are required to turn over to the defense exculpatory evidence, or material that could be favorable or tend to exonerate a defendant.

But because District Attorney Abel Reyna and Vic Feazell, the former district attorney who tried Graf in 1988, have said the original DA’s office file cannot be located, Graf’s attorney, Walter M. Reaves Jr., is seeking dismissal of the charges.

Graf, 61, who won a new trial from the Texas Court of Criminal Appeals, is set for trial May 19 in Waco’s 54th State District Court.

“Defendant suggests that his trial cannot proceed without the assurance that any evidence which points to his innocence has been produced,” Reaves wrote in his motion to dismiss the charges. “That assurance cannot be given.”

Judge Matt Johnson has not ruled on Reaves’ motion.

Graf's was one of the cases reviewed by the state fire marshal in which the conviction was found to have been based on since-debunked arson indicators now known to be junk science. See extensive coverage of Graf's case from The Texas Observer.

Corruption allegations vs. San Antonio judge

Reported the SA Express-News today:

Republican state District Judge Angus McGinty is expected to resign as soon as Friday amid allegations he reduced bail on defendants who appeared before him in exchange for auto repairs on his personal vehicles, federal and courthouse sources confirmed.

McGinty's expected resignation is related to an FBI investigation centered on defense lawyer Al Acevedo, who confirmed last month to the Express-News that he was under investigation related to allegations of bribery of judges and others in the criminal justice system over purported favors on his cases.

Among those the FBI has looked at are certain prosecutors in the Bexar County district attorney's office who have been seen with Acevedo at swanky restaurants in San Antonio, where Acevedo picked up large tabs, several sources revealed.

“We're talking hundreds of dollars,” one federal source said. “But I don't know that the fibs (FBI) have enough to pursue that. It could just be seen as courthouse friends going to lunch.”

The probe also extends beyond the Bexar County Courthouse to other areas in the state where Acevedo has had clients, and it includes current and former jurists, federal sources confirmed.

“They're leaving no stone unturned,” another source said.

'Closing a troubled symbol of Texas juvenile justice'

Check out this excellent story by Maurice Chammah from the Center for Public Integrity examining the closure of the Texas Juvenile Justice Department's Corsicana facility, formerly the "Texas Orphan Asylum," examining the history of the facility and the problems that led to the Legislature finally closing it. The article opened:

When the Texas Juvenile Justice Department released a report in June 2013 recommending the closure of the Corsicana Residential Treatment Facility, the authors presented an arresting image. The campus in Corsicana, Texas, they wrote, “continues to pose a risk to the vulnerable youth population it serves as hazardous debris and glass are continually unearthed after rain or strong winds.” The roughly 90 youths at the facility, most of whom had been diagnosed with severe mental illnesses and who had committed crimes, were using the glass and debris to "harm themselves." Many of the buildings, the authors noted, "warrant complete replacement."

When Corsicana was finally emptied by the Texas Legislature in December 2013, many in the world of juvenile justice reform already viewed the facility as dangerous and unsalvageable. A federal Bureau of Justice Statistics report found that in 2008, 23 percent of Corsicana inmates reported having had sexual relations with staff. Violence was up as well; in 2012, the facility was responsible for 32 percent of all violent incidents in the juvenile justice agency, despite housing only 10 percent of the agency’s youths.

It hadn't always been this way.

Rare self defense finding by grand jury in no-knock raid resulting in deputy's death

A Burleson County grand jury ruled Henry Magee acted in self defense when he shot and killed a Sheriff's deputy during a SWAT raid on his home based on an informant's misinformed testimony. Turned out, he had a pair of six-inch pot plants in the house, not the large-scale grow the informant had claimed. He will still be prosecuted on drug and weapons charges, says the local DA. See Radley Balko for more.

The episode may portend changes both in public perceptions about personal use levels of marijuana as well as unjustified deployment of no-knock raids. The Bryan College Station Eagle's editorial board called the grand jury "courageous" for their decision, opining that "there was no reason to employ a no-knock warrant on the home of Hank Magee. Officers could have knocked and waited for him to answer. They could have waited until he left his home. There was no advantage in not waiting, in not knocking."

Film: On the long-term effects of solitary confinement

If you're in Austin, you may want to check out a documentary film on Wednesday at UT's LBJ School about the long-term effects of solitary confinement. Here's a description of the event:

On October 1, 2013, Herman Wallace's 1974 murder conviction was overturned, and he was released from prison after four decades in solitary confinement. Just three days later, Herman Wallace died of cancer, a free man.

Join the LBJ School's Center for Health and Social Policy for a public screening of HERMAN'S HOUSE, the award-winning PBS documentary that shines a spotlight on the injustice of solitary confinement and helped free Herman Wallace. 

After the film, LBJ School Professor Michele Deitch, a national expert on criminal justice policy, juvenile justice policy, and the school-to-prison pipeline, will moderate a discussion on policy implications and questions raised by the film.

The event is free and open to the public, but seating is limited and registration at http://HermansHouseLBJ.eventbrite.com is required for communication purposes. Light snacks will be provided.

State Prosecuting Attorney to Greg Abbott: Butt out

Regular readers will recall that last year the Texas Court of Criminal Appeals declared Texas' online solicitation of a minor statute unconstitutional. Strangely, given that he has no role in criminal cases except when he's invited in by local prosecutors (unless you consider his motives political, in which case it's not strange at all), Attorney General and gubernatorial candidate Greg Abbott sought to have the CCA re-hear the case. Mark Bennett earlier published his arguments why the AG had no authority to request rehearing, and it turns out the State Prosecuting Attorney agrees. Reported the Austin Statesman last week (Feb. 4):

Lisa McMinn, the state prosecuting attorney, asked the Court of Criminal Appeals to disregard Abbott’s request, arguing that there was no obligation to notify Abbott about a case he was powerless to join.

McMinn told the court that only local prosecutors and her office, created in 1923 to handle criminal appellate matters for Texas, may represent the state in appeals involving criminal cases. Abbott, who represents Texas in civil court matters, cannot intervene in an ongoing criminal case unless invited by a local prosecutor — and Abbott received no such offer in the case, she said.

On the macroeconomics of the private prison industry

At the Motley Fool, a widely read investment analyst site, Bradley Seth McNew had an item Feb. 6 titled, "Why I sold Corrections Corporation of America" despite the companies recent high dividend yields. His concern was over the long-term trends facing the private prison industry. Here's a notable excerpt explaining why McNew thinks the private prison stock is headed south:

Why the stock, and the industry, is now heading for a long-term decline The prison population in the United States has finally reversed its growth trend, and populations fell by 1.7% in 2012.  In New York City alone, incarceration rates have declined 32% since 2001. Other cities will likely be following. Attorney General Eric Holder, the country's top law enforcement official, said that "[too] many Americans go to too many prisons for far too long, and for no truly good law enforcement reason." With political actions toward legalizing marijuana, relaxing strict immigration laws, and relaxing judicial punishment for non-violent crimes, this trend will likely continue during the foreseeable future.

The political environment is changing, with activists and officials alike seeking to decrease the federal and public burden of detaining such a large population of people that probably don't need to be locked up, as opposed to other forms of punishment, such as fines and public service. CCA has tried to stop this trend. According to ProPublica, CCA has donated $1.9 million in political contributions from 2003 to 2012 to favorable candidates, and has spent an astounding $17.4 million on lobbying during that time.  Unfortunately for the private prison company, the money doesn't seem to be flowing as strongly as before because the trend is reversing.

Additionally, Corrections Corp. has been the recipient of some bad attention lately concerning their management of inmates. The company was recently under suit from prisoners and families of prisoners after issues involving inmate violence in facilities in Idaho. This is only the most recent in a series of such issues.

According to reports, 132 inmate-on-inmate assaults were recorded at the Idaho facility during the one-year period of Sept. 2007-Sept. 2008 alone. Compare that to the 42 recorded at the equally sized state-run facility during the same time frame. These rises in assaults have been blamed on poor management and lack of security personnel due to cost cutting. 

McNew thinks the GEO Group is a better financial bet than Corrections Corporation of America - perhaps because of recent sweetheart deals in its home state of Florida - but Grits would point out that GEO is much more laden with debt than its biggest competitor and faces the same long-term trends described above. With state and local incarceration rates declining and the prospect of federal sentencing reforms on the horizon, these companies' only real prospects for growth stem from continued, large-scale immigration detention. So if and when immigration reform ever becomes a reality, Grits fails to see from whence their long-term growth could possibly come. That said, these have been highly profitable companies for the last three decades. But the Motley Fool analysis above suggests the coming decades may not be so kind to them.

RELATED: More CCA troubles: "One of the world’s largest private prison firms agreed to pay Idaho $1 million on Tuesday to compensate the state corrections department for thousands of hours in falsified staffing records while key security positions were left vacant."