Thursday, August 27, 2015

Kangaroo court in Waco: No reason needed to arrest packing pastor with CCL

Gun ownership is on trial in Waco, so why aren't the NRA and all the open-carry advocates going nuts over what's happening regarding prosecutions from the the Twin Peaks biker massacre?

In McLennan County, visiting Judge James Morgan ruled after an examining trial that there was sufficient cause to have arrested a 65-year old concealed carry permit holder who wasn't wearing a biker cut but a Christian t-shirt (he's chaplain to the Bandidos and two veterans groups) because he was carrying legal personal weapons. The judge declared there was probable cause to support an arrest even though no police "officer could offer evidence that Yager conspired to commit murder, assault or any crime that day" Like everyone else arrested in the episode, Yager's bail was initially set at $1 million.

An earlier examining trial found probable cause to arrest a Brenham couple even though police agreed they were "merely present at a murder" that there was no evidence they committed.

Legality aside, how is it that a Texas judge can declare police don't need a reason to arrest legal Christian gun owners and there's not immediately an army of Second Amendment protesters beating down the DA's door? The silence from that wing of the political spectrum on this issue is deafening.

Regardless, the law doesn't seem to matter in Waco anymore. These are kangaroo courts and a flat-out embarrassment to the state.

RELATED: Why won't authorities say how many in Twin Peaks massacre were shot by cops?

Sunday, August 23, 2015

Overbuilt Texas county jails turned private prison boom into bust

John MacCormack at the SA Express-News described in this morning's paper massive overbuilding at Texas county jails which has mostly gone unnoticed by the press and the public:
In June 1995, Texas jails had 64,000 beds, and were operating at 80 percent capacity, with 7,775 beds available. In June 2015, having added nearly 30,000 beds, they were operating at 70 percent capacity, and had 19,870 available beds.

The number of federal and contract prisoners in county jails has declined in recent years, due in part to changes in federal policy.

Where in 2000, the U.S. Border Patrol apprehended 1.67 million people, by 2014 the figure had dropped to fewer than 487,000, and has stayed low since. Detentions by Immigration and Customs Enforcement also recently have dipped after a longtime rise.
The story describes a phenomenon with which Grits readers should be familiar, in which private prison companies and local politicians carrying their water would argue that:
A detention facility built for federal inmates would create local jobs, a steady cash flow for the county and, once the bonds were paid off, a county-owned prison. And by using a public facilities corporation to borrow the money, taxpayers would be shielded if anything went wrong.

It was an easy money pitch often heard in rural Texas during an era that made the state the private prison capital of the country as companies built more than 50 facilities with as many as 60,000 beds.
Three decades later, the boom is over. And as the public sector's need for private prison beds has diminished, the tally of failing prisons in Texas is increasing, with some already vacant for years.

The bust is evident on a rural tour of the state, where more than a dozen once-profitable facilities have failed. At least seven of them, which together borrowed nearly $200 million, are in arrears on bond payments, figures from Municipal Market Analytics, a bond-research firm, show.

"Twenty years ago, everyone was bringing prisoners and everyone was making money. Then the state and federal governments figured out it cost too much to hold these guys, so they started looking at other means," Maverick County Sheriff Tom Schmerber said during a recent visit to the detention center there.
I must admit, it's particularly odd to see the story of the prison unit in Littlefield being considered a success story, though that's how it's being portrayed.
One of the few bright spots among the communities stuck with empty facilities is Littlefield, a city of 6,500 an hour northwest of Lubbock. There, a 300-bed, city-owned prison that has been vacant for more than five years is about to reopen.

"We have not been in arrears. We have made payments twice a year since it opened in 2000. With utilities and other costs, it's about $1 million a year, which is 13 percent of my budget," said City Manager Mike Arismendez, who announced his resignation last week.

Originally built for the Texas Youth Commission, the prison later held inmates from Idaho and Wyoming before closing.

Recently, Arismendez said, after years of futile searching, the city landed a new tenant, although it is not one that would be welcome everywhere. The Texas inmates will be violent sex offenders who require additional treatment before being released.

"The public seems to be very happy that we're going to reopen the facility and have jobs," he said. 
MORE: See AP's version of the story, the lede of which pithily declared, "More than a dozen once-profitable private prisons in Texas have failed, including one this month in South Texas, and records from a bond research firm examined by the San Antonio Express-News show at least seven are in arrears in payments on nearly $200 million in bonds."

Bad cops, bad puns, bad contracts, bad Democrats and other happy stories to cheer up your day

Here are several items which merit readers' attention even if I don't have time to blog on the topics:

Saturday, August 22, 2015

Fire! Jailhouse informants and Texas arson cases

Two recent high-profile news stories shined a spotlight on the use of incentivized jailhouse snitches to supplement flawed arson science in high-profile murder cases:
Grits has no time at the moment to comment at any length. But long-time readers know the intersection of informants and flawed arson science cuts across two of my long-time interests, so I may come back to these items as the vicissitudes of time and convenience permit. For now, I'll encourage everyone to read both stories and offer up in the comments any observations, arguments or suggestions which may consequently arise.

Friday, August 21, 2015

Why won't authorities say how many in Twin Peaks massacre were shot by cops?

Let's not mince words: It's absurd and disingenuous that authorities in Waco haven't yet released results from ballistics reports to tell us how many of the nine deceased and 18 wounded at the Twin Peaks massacre were shot by bikers and how many by cops. And every court hearing or public pronouncement where they avoid divulging that surely-by-now-known information undermines their credibility and gives the impression that many if not most victims were killed by police officers, not outlaw bikers.

Next week, we'll finally see examining trials (which are only allowed in cases where the D.A. has not sought an indictment from a grand jury) for a few defendants, but even then it seems likely the state will skate by without answering the fundamental question of who shot whom.

At Above the Law, Texas Southern's Tamara Tabo explains how DA Abel Reyna and his former law partner, District Judge Matt Johnson (who issued a gag order in the case) have successfully tamped down media access to even basic information about what happened that day. It's a good update of where we're at and why, give it a read.

Thursday, August 20, 2015

New spotlight shines on old problem of ineffective police disciplinary processes

Police accountability issues have risen to the forefront of public discussion in recent months to a greater extent than at any period in Grits' adult lifetime.  For example, in an Aug. 18 staff editorial, the Houston Chronicle opined:
HPD has developed the reputation of a department where police brutality goes unpunished. In 2013, the Texas Observer ran an award-winning, two-part article titled "Crimes Unpunished," which documents routine problems of officers failing to do their jobs while getting off after unnecessarily resorting to violence.

"Out of 706 complaints about excessive force, HPD disciplined only 15 officers. For 550 shootings, HPD disciplined none," the Observer reported, documenting the statistics from 2007 through 2012.

"The message is clear: Either Houston police almost never abuse their power, or they abuse it with impunity."

These numbers should be troubling not only for civil rights advocates, but also for average Houston taxpayers who want to know that their police department is doing its job correctly. At their core, officers are supposed to serve as lookouts, life preservers and taxis: They either protect people around them, help people in need, or shuttle dangerous people into the criminal justice system. Now Houstonians are paying for inconsistent results.

In his campaign for mayor, state Rep. Sylvester Turner announced a plan Thursday to spend $85 million on 540 more police officers to fill the Houston Police Department's ranks ("Turner would expand police," Page B1, Friday). This follows on Police Chief Charles McClelland's request for $105 million to hire 1,200 new officers.

If Houston is going to hire new cops, then City Hall has to find a way for them to bring a new attitude to policing, as well.

Mayoral candidate Ben Hall, a former city attorney, has called for more body cameras to serve as a check on officers ("Hall plans permanent HPD body cameras," Page B1, Aug. 12). Cameras are a right step, but they haven't proven effective in preventing unnecessary violence from officers. After all, a dashboard camera didn't stop a state trooper from threatening to shoot Sandra Bland with a Taser.

Technology can't fix a broken soul.
Houston PD's disciplinary process is governed by their own special section of the state civil service code (Ch. 143 of the Local Government Code) and thus is largely immune from local intervention. The main influence a strong mayor can have will be budgetary. On the disciplinary front, perhaps the paper should begin polling local legislators to see what they might do to improve the department's ability to hold officers accountable. In the coming months I'll revisit some of the longstanding reform suggestions for the civil service code, some of which date back 20 years in my experience, maybe longer. These are longstanding problems; it's the spotlight that's new.

Texas quietly rescinded ban on food stamps for first-time drug offenders

The Houston Chronicle reported (Aug. 19) on a change in the law which received little publicity. Brian Rosenthal's story opened:
Texas soon will allow tens of thousands of residents convicted of drug crimes to receive food assistance from the federal government, joining almost every other state in ending a ban that once covered the entire nation.

Legislation approved during this year's legislative session will make Texas the 44th state to opt out of the ban, which former U.S. Sen. Phil Gramm, R-Texas, inserted into President Bill Clinton's 1996 welfare reform package.

Under the new policy, which takes effect Sept. 1, first-time drug felons will be able to get food stamps as long as they comply with the conditions of their parole and do not commit a second offense while receiving assistance. They still will be ineligible for cash help through welfare.

Residents convicted of non-drug-related felonies will continue to be able to get benefits, as they were never included in the ban.

The change could help many of the 56,860 Texas residents currently on Community Supervision for drug offenses, according to the Texas Department of Criminal Justice, and many more who already have cycled out of parole. It is unknown how many of them may seek food stamps, however.

Advocates hailed the move as a landmark reform for Texas, saying the scant attention it received during the session belied the transformative effect it could have on those most in need of help.
"It isn't about rewarding people convicted of crimes. It's about making sure that they do not become repeat offenders, and to do that, we need to give them some help," said state Rep. Senfronia Thompson, D-Houston, who spearheaded the change via a standalone bill and then, after that failed, through an amendment to a noncontroversial bill. "This will give them an opportunity to regain respectability by going out into the marketplace and making a living."
The bit about "ending the ban" in Mr. Rosenthal's lede is a bit strong. The restriction of the change to a first offense will limit the new law's effectiveness. ("Diminished the ban," perhaps? "Inched away from a total ban"?) Texas may have formally opted out of a federal ban (hurrah! we're 44th!), but then the Legislature of its own accord retained it for a large class of drug offenders. Regardless, the new law will help some people and provide a floor to build on in coming sessions.

Bail reform promoted in wake of Sandra Bland tragedy

The Houston Chronicle's Leah Binkowitz has a story (Aug. 19) titled, "Bail reform urged after Sandra Bland death." In it, Johnny Mata of the Greater Houston Coalition for Justice declared, "The death of Sandra Bland was a travesty of justice." "Sandra Bland would probably be alive today if Texas would've had a system that is fair," he said. Here's how these groups framed the issue:
His coalition reflects more than 25 organizations across the area. He was joined Wednesday by experts like law professor Sandra Guerra Thompson, director of the University of Houston Law Center's Criminal Justice Institute, who said the need for bail reform is a national concern but is especially needed in Houston.

By following pre-determined bail schedules, magistrates ignore their responsibility to take individual factors into consideration to ensure that the does not merely become a punishment for being poor, she and others argued. Instead it's meant to reflect an individual's flight risk and potential public safety concerns. Had a more nuanced risk assessment instrument been used in Bland's case, she argued, "the question would not be, 'Does she have $500?' but, 'Is she a risk to come to court?'"

Representatives of the Harris County Sheriff's Office and the Texas Jail Association could not be reached for comment Wednesday afternoon.

Bland's case is not unique.

"There are far too many people in Texas jails and prisons that don't need to be there," said Brandon Dudley, legal counsel for state Sen. Rodney Ellis. Many of those individuals, some 75 percent in Harris County jails, are detained simply because they cannot pay their bail.
Longtime readers will recognize these groups are singing my song. Grits' preference would be to shift away from money bail entirely and go to a risk assessment system. These debates are happening all over the country, not just in Texas, but the poignancy of the Sandra Bland tragedy gives the push here extra energy and focus.

Wednesday, August 19, 2015

Whitmire: 'Zero tolerance' for suicides or deaths in county jails

This quote jumped out at me from state Sen. John Whitmire, whose Criminal Justice Committee will investigate jail safety in the wake of the Sandra Bland tragedy at the behest of the Lt. Governor: “I’m going to have zero tolerance for suicides or deaths in jails.” According to the Dallas Morning News, "In the state fiscal year that ends this month, 29 people have died by suicide in Texas jails."

But the issues surrounding "deaths in jails" are broader than just designated suicides. In 2014, there were 615 deaths in custody in Texas, by my count with 410 of them in state prisons and 103 in the custody of County Sheriffs. A few of those were in Sheriffs' custody were killed by deputies in the field, but mostly they're deaths in county jails. See the AG's master list, which regrettably does not include cause of death nor really much useful information at all.

This morning Grits pulled the names of people who died in the custody of Texas County Sheriffs since January 2014, as reported the Texas Attorney General's office. Here's the list as of today: 183 have died in Sheriffs' custody since January 2014, including 80 so far in 2015, a statistic which includes Sandra Bland and appears on pace to exceed last year's number.

See related Grits posts:

Will SCOTUS require warrants for cell-phone location data after Texas Lege failed twice to do so?

Here's a good summary of the state of legal challenges asking the federal courts to require a warrant for cell-phone location data.

Texas came far closer to requiring a warrant for police to gather cell-phone location data in 2013 than in 2015. This year, a House bill received a late vote from Chairman Abel Herrero, a bill opponent, and was never set for a floor vote by the Calendars Committee. (In 2013, the same bill was placed on a floor calendar too late to actually receive a vote.) In the Senate, Lt. Governor Dan Patrick sent it to the State Affairs Committee chaired by Joan Huffman instead of John Whitmire's Criminal Justice Committee, as would be typical of a bill adjusting the Code of Criminal Procedure. She exercised her pocket-veto power, a prerogative of committee chairs, and refused to set the bill for a hearing.

The Lt. Governor can kill legislation nearly at will in the Senate, so if Dan Patrick chooses to send a bill to Joan Huffman for disposal, there's not much anybody can do about it (except maybe amend Senate legislation in the House). But when the Calendars Committee won't set a bill with 93 joint and coauthors for a House floor vote, after the Calendars chairman voted for the bill in committee, no less, then the bill faces a larger leadership problem that extends beyond the Lt. Governor.

It's possible the federal courts will require a warrant for cell-site location information (CSLI) based on an interpretation of the Fourth Amendment, but that path is uncertain and SCOTUS has only recently begun to overcome the knee-jerk deference to law enforcement on search-and-seizure questions which has characterized its rulings throughout most of the Drug War era.

Grits would prefer a legislative warrant requirement to one written by judges, particularly ones as on this court who are as ancient as they are august. Asking octo- and septuagenarians to apply the Fourth Amendment to 21st century tech (preferably without needing to imagine tiny constables stowed away on coaches) may prove too much for them. If they screw it up, it could be hard to fix. And if there's a lesson to be learned from the federal Electronic Communications Privacy Act of 1986, it's that judging what's important at any given moment is a moving target that must be regularly updated as technology evolves, which is easier done in statute than in case law.

OTOH, one hopes SCOTUS does implement a warrant requirement since a state-level bill in Texas faces clear, persistent obstacles in both legislative chambers, not because the membership of both bodies don't support the bill but because leadership has denied them the opportunity to demonstrate it.

Sunday, August 16, 2015

Catching up on criminal-justice reform news

Having just returned from a much-needed and oft-interrupted two-week vacation, your correspondent today spent a little time perusing the news I've missed while I've been focused elsewhere. Here are a few highlights which caught my eye and may interest Grits readers:
  • Ana Correa of the Texas Criminal Justice Coalition has taken a job as criminal justice program officer at the Public Welfare Foundation and will be moving to Washington D.C. in the fall. The Houston Chronicle published a somewhat hagiographic announcement praising Grits' long-time ally and some-time employer.
  • I'd rather see Rio Grande Valley officials battling corruption as opposed to "perceptions of corruption." Stop the corruption and perceptions will take care of themselves.
  • Houston mayoral candidate and state Rep. Sylvester Turner has proposed increasing manpower at the Houston PD by about 10 percent. Grits has opposed hiring more cops in Austin, where we've hired too many cops at too-high salaries over the last 15 years, but in Houston the case for more officers is stronger. "The department employed 5,470 officers in 1998, and is projected to operate this budget year with about 5,260, despite enormous population growth during that time." The big problem, unstated in the article: Police pensions are already underfunded in Houston and adding more officers without fixing the situation exacerbates the situation. Even without factoring in pensions, the Chronicle estimated Turner underestimates the cost of expanding the police force by more than $20 million.
  • Last month Grits published an interview with Rebeccah Bernhardt of the Texas Fair Defense Project on high caseloads by lawyers appointed to represent indigent defendants in Texas. Now, a lawsuit out of California will address whether public defenders handling 700 cases per year can effectively represent their clients. In Texas, lawyers with caseloads that high experience an even greater burden because they typically must also manage a small business - their own practice.
  • Doug Smith, a former inmate and past colleague of your correspondent when I worked for the Texas Criminal Justice Coalition, has a new blog on which he published a letter to a human resources manager discussing his criminal history and why it shouldn't preclude him from employment. Good read.
  • What if mass incarceration actually increases crime? According to this report:
A new paper from University of Michigan economics professor Michael Mueller-Smith measures how much incapacitation reduced crime. He looked at court records from Harris County, Texas from 1980 to 2009.Mueller-Smith observed that in Harris County people charged with similar crimes received totally different sentences depending on the judge to whom they were randomly assigned. Mueller-Smith then tracked what happened to these prisoners. He estimated that each year in prison increases the odds that a prisoner would reoffend by 5.6% a quarter. Even people who went to prison for lesser crimes wound up committing more serious offenses subsequently, the more time they spent in prison. His conclusion: Any benefit from taking criminals out of the general population is more than off-set by the increase in crime from turning small offenders into career criminals. 
    See the full article by Mueller-Smith.
  • To reduce prison populations by half, as the #Cut50 movement has suggested, would require reassessing sentences for violent as well as nonviolent offenders. Here's a rare op ed focused on why and how to reduce incarceration for offenders convicted  of violent crimes.
  • The New York Times last week published an excellent story on the nexus between high bail and innocent defendants pleading guilty to avoid losing their jobs or remaining incarcerated for long stretches awaiting trial.

Monday, August 10, 2015

Political correctness won't cut Texas' prison population

A pair of researchers from UT's Institute of Urban Policy Research and Analysis suggested in a Fort Worth Star-Telegram op ed last week that "Reinforcing a national narrative that celebrates the success of the Texas model [of probation and parole reform] spreads harmful misinformation about the ability of fiscal austerity designs to substantively reduce incarceration and racial disproportionality."

Regular readers know Grits is sympathetic to criticisms that de-incarceration proponents overstate the import of the 2007 reforms dubbed "the Texas model" (see here, e.g.). Those changes happened eight years ago and, until the state raised thresholds for property theft this spring to adjust for inflation, there hadn't been another significant bill to stem incarceration since then. Like an aging high-school jock reliving former glory, there are only so many times folks want to hear about how great you were back in the day. Boasts about the "Texas model" exude a whiff of that sort of dated self aggrandizement and deserve rebuttal.

But it's also wrong to say those reforms failed because the state did not "reduc[e] the number of people Texas incarcerates" or that the reforms were solely rooted in "fiscal austerity." That lacks historical context.

For starters, those reforms included more than $200 million per biennium in new money for treatment and diversion programming, which hardly bespeaks fiscal austerity. That's a significant investment which the Legislature has sustained, if not added to, in subsequent sessions.

And to criticize the reforms for not reducing incarceration ignores the situation faced by Texas state leaders at the time. Dating from the period when Ann Richards and a Democratic controlled Legislature nearly tripled the size of the prison system, Texas' prison population had been on an uninterrupted upward trajectory and was predicted to add 17,000 more prisoners to its bloated rolls between 2007 and 2012. Instead, the prison population declined slightly overall since then, creating the opportunity to close three prisons for the first time in the state's history.

That's no small thing, in this writer's view, even if there's far more to be done.

Grits considers it wrong and counterproductive to downplay the importance of halting prison population growth or reducing incarceration rates. The real, more substantive criticism to me is that, afterward, our politicians rested on their laurels and joined the national speakers' circuit to pat themselves on the back instead of doubling down and finishing the job over the subsequent eight years.

I was also non-plussed to read the suggestion that reform efforts are "best led by the experts — those who have experienced incarceration themselves, together with their families." Really? Who are these inmates and inmate-family groups who will devise de-incarceration policies that our Republican legislature will enact? This is a politically correct throwaway line, not a serious comment. While there are a handful of former inmates who are capable of participating in the process at the conservative Texas Legislature and understand what will move Republican lawmakers, most struggle just to find employment, meet parole requirements, and keep their heads above water. Insisting that only ex-inmates are qualified to lead reform efforts sets the project up to fail.

Worse, that stance allows more mainstream constituencies to abdicate responsibility. Folks in the free world - mostly Democrats,  as a matter of historical fact - created the laws and policies which spawned mass incarceration in Texas, and those of us in the free world must take responsibility for reversing it. This can't just be something that's mainly the problem of incarcerated people and their families. We need conservative leaders, progressive leaders, and community activists; we need law enforcement leaders, thoughtful prosecutors, lawyers, and policy wonks; we need lots and lots of enthusiastic people with good ideas from all walks of life. Mass incarceration is not just a prisoners' problem.

Grits also isn't a fan of the authors' "call for racial impact statements for all criminal justice policies, practices and proposals." With certain notable exceptions like the drug war and police interactions at traffic stops, I don't find it constructive nor useful to view most criminal justice policy through a racial frame. Do I consider the justice system color-blind? Of course not. But neither do I see every prisoner as a victim of the system and I'm sympathetic to folks in minority communities who are disproportionately victims of crime and deserve protection.

According to Politifact, for example, "young black men, ages 14 to 24, suffer disproportionately from murder. While the numbers have been falling since the mid-1990s, in 2008 about 16 percent of homicide victims were young and black. As a group, they represented just 1 percent of the population." And since overwhelmingly most of those murders are committed by other young black men, in truth some disproportionality in prison populations is entirely reasonable, even if it's not politically correct to say so. (Grits sympathizes more with a racial disproportionality critique if one cabins discussion to the drug war, where differences in incarceration rates are far less defensible.)

I suppose I'm arguing for a dose of realism when it comes to de-incarceration, mainly because I want it to actually happen instead of just talking about it. There are systemic stakeholders - cops, prosecutors, judges, probation departments, the prison system, and of course the politicians in charge of it all - who can be ignored in an op ed but not in the legislative/policy arena.

This column, however well-intended, charts a path for reform which leads down a dead-end.

Texas' 2007 reforms were important but should be viewed as a first step, not a final result.  Much more remains to be done and there appear to be legislators in both parties who intend to try, as evidenced by juvie de-incarceration and the successful effort to adjust property thresholds for inflation.  So while I agree with many of the authors' aims in this column, greater strategic and tactical acumen will be necessary to accomplish those goals.

Sunday, August 09, 2015

Emerging issues with the Michael Morton Act: A GFB podcast

Before leaving on vacation, your correspondent conducted an interview with Amanda Marzullo, Policy Director for the Texas Defender Service, about a report (pdf) that the group produced with Texas Appleseed (with support from attorneys at Locke Lord LLP) about implementation of the Michael Morton Act.  Give it a listen:


Grits had earlier written up highlights from the report here. Find a transcript of our conversation below the jump.

Friday, July 31, 2015

Passionate first Lege hearing on Sandra Bland tragedy

Last night's Texas House County Affairs Committee hearing on the Sandra Bland episode sounds like it included some dramatic moments and received significant press coverage. (Grits was driving home from Lubbock and couldn't go.) Certainly, it appears DPS honcho Steve McCraw had a particularly rough go of it:
The NY Times article is particularly good, and the Breitbart piece highlights Tea Party "liberty" perspectives on the case. A video of the hearing isn't online yet but should be posted soon here.
 The missus attended the hearing and testified. She said the committee was in fine form, particularly praising Chairman Coleman, Jon Stickland, Joe Farias, and Gene Wu. Stickland, she said, was "on his best behavior" and well prepared, while Wu and Coleman demonstrated particular passion over pretrial detention issues.

The committee opened testimony to the public but the press coverage focused on comments by state officials. LBJ prof Michele Deitch testified, iterating some of her comments here. I'm told a couple of students from Prairie View A&M, who were friends of Ms. Bland, acquitted themselves especially admirably.

Had your correspondent been able to address the committee, my comments would have sounded something like this.

Thursday, July 30, 2015

Waller Co. DA sets up Sandra Bland investigative panel

Ed. Note: As Grits prepares to go on vacation for a couple of weeks, Rebecca Bernhardt and Emily Gerrick from the Texas Fair Defense Project have agreed to guest blog in my absence. This is Becky's first post.

In an apparent effort to provide independent review of the death of Sandra Bland, Waller County DA Elton Mathis has established a panel of volunteer lawyers to investigate the case.

According to Texas Lawyer, the panel of four attorneys only has two members so far, criminal defense attorneys Darrell Jordan of Houston and Lewis White of Sugar Land.

While the effort to create some independent entity to replace the local DA's office in the criminal investigation should be lauded, delegating the authority to volunteers who have not been independently selected and lack the expertise and resources of a DA's office does not inspire confidence.

As noted criminal defense attorney Dick DeGuerin pointed out in the Texas Lawyer, DA Mathis has multiple tools available when his offices has a conflict in a criminal investigation:

1) Ask the regional presiding judge to appoint a special prosecutor;
2) Appoint a special prosecutor yourself, preferably someone with prosecutorial experience who is from another region of the state.

Of DeGuerin's suggestions, I prefer the first because it removes even the selection of the special prosecutor from local hands.

Tuesday, July 28, 2015

A suggestion for 'The Sandra Bland Drivers' Rights Act'

This morning, I received a text from the missus* who suggested that, in 2017, reprised legislation to limit police arresting motorists for Class C misdemeanors should be titled, "The Sandra Bland Drivers' Rights Act." Clever gal. Bud Kennedy at the Fort Worth Star-Telegram had earlier described the law that needs updating, and UT law prof Jennifer Laurin suggested that:
state legislatures can, and should, limit police discretion to arrest for minor violations. 
The Texas Legislature attempted to do that in 2001 and 2003, passing one bill barring arrests for most offenses not punishable with imprisonment, and one to force police to enact rules on when arrests can occur. Then-Gov. Rick Perry vetoed both bills. The Texas Legislature should act again to prohibit arrests for minor violations, and the current governor should lend his support. 
So, too, lawmakers can push for greater police professionalism (through more rigorous training requirements) and for less protective civil service laws. In contrast to the limits of rulemaking through lawsuits, the options are theoretically endless for legislatively driven police oversight. The only limit is political will.
Indeed, there have been lots of interesting columns published about the case recently, including a bunch of good ones from the Dallas News. E.g.:
* Your correspondent is in Lubbock moving the Innocence Project of Texas out of its long-time offices, which explains why blogging has been light. Our landlord, who donated the space for many years, just sold the building and we've been asked to vacate on quite short notice, months ahead of original plans.

Saturday, July 25, 2015

Texas Monthly interviews Grits

After your correspondent became executive director of the Innocence Project of Texas last month, Michael Hall at Texas Monthly asked to interview me about the job, the blog, and where the innocence movement is headed in the future. See the published version here.

Learning from Sandra Bland: First thoughts

Grits readers are so familiar with the masthead that most of you have probably stopped reading it: "You might beat the rap, but you won't beat the ride." The death of Sandra Bland shows that old canard remains among the most serious problems in our Texas justice system. The protections guarding anyone from being pulled out of their car for no reason, taken downtown and booked into jail (for no demonstrated reason), and then quite possibly dying there, have eroded to the vanishing point. Sandra Bland, like most Texans, didn't actually know that and received the harshest possible lesson when she tried to articulate what she thought were her rights.

The Texas House County Affair Committee will hold a hearing next week to study "jail standards, procedures with regards to potentially mentally ill persons in county jails, as well as issues stemming from interactions between the general public and peace officers." That sounds to me like the first state-level public hearing on the policy issues surrounding the Bland case and it's worth considering what policy responses might look like look like beyond placard-sized slogans.

Sandra Bland's death highlights at least three major policy changes needed to keep the public safe from its protectors.
  • The officer should not have had grounds to arrest her in the first place. 
  • Even if arrested, she should have been booked and released, not jailed.
  • Once in jail, she should have been more closely monitored (assuming her death was, in fact, a suicide.)
On the traffic stop: Yes the officer was rude, needlessly aggressive and threatening. But that was probably punishable misconduct (DPS immediately reported his reassignment to desk duty awaiting discipline). Less discussed but more important from a public policy perspective is the issue Bud Kennedy raised in the Fort Worth Star-Telegram: It's bullshit that a cop has the right to arrest somebody over a traffic violation. Kennedy explained the authority under which the trooper believed he had the right to drag Bland out of her car for failure-to-signal-lane change:
By a 5-4 vote in 2001, the Supreme Court upheld the arrest of Gail Atwater, 45, stopped by Lago Vista police driving slowly along the roadside helping children look for a lost stick-on ornament from the Austin Ice Bats hockey team.

Justice David Souter wrote in the majority opinion that any arrest involving a violation is not “unreasonable” search or seizure.

University of Texas Law School professor Michael F. Sturley was another of Atwater’s lawyers.
“Here was a mother and her kids looking for a toy, and she got thrown in jail,” Sturley said.

“Police experts say the last thing you want is to arrest someone over a traffic stop. It’s expensive to jail people, takes officers away from duty and imposes a lot of costs on the system. But police say it’s a tool when they want to throw someone in jail.”

In Texas, police don’t need a good reason. Just a reason.

Read more here: http://www.star-telegram.com/opinion/opn-columns-blogs/bud-kennedy/article28476181.html#storylink=cpy
Long-time Grits readers may recall that the Legislature passed a law in response to that Supreme Court case disallowing arrests for most Class C misdemeanors, but the bill was among Rick Perry's first round of vetoes in 2001. In 2003, Perry vetoed another bill which would have required law enforcement agencies to have written policies stating when their officers could arrest for Class C misdemeanors, and the Legislature has not seriously addressed the issues since.

With a new governor and momentum from this episode (the trooper was a complete jerk, making the video viral gold), perhaps it's time to revisit the Legislature's 2001 rebuff of the Atwater decision. Your correspondent has long considered that one of Rick Perry's most egregious and harmful vetoes.

On arrival at the jail: Once dragged out of her car and taken down town, she could have been charged, booked and released. Remember, this all started with a traffic violation. Grits for years has harped on egregious, needless levels of pretrial incarceration at Texas' county jails -- currently 60.7% of statewide jail populations are incarcerated pretrial.

Consider that percentage that for a moment in light of Sandra Bland's death. Like Bland, more than half of the people in jail haven't been convicted of anything. Grits has spent considerable blog space over the years promoting alternatives to big, expensive new local debt issues for jail expansion. The simplest: you don't actually have to jail most people pre-trial.

While lots remains unknown about Sandra Bland's death, she would probably be alive today if she had been booked and released on a personal bond with a date to return to court for her hearing.

On detention: the last policy issue bound to get more attention - particularly if the murder allegations fail to stand up - is suicide prevention in jails. The Texas Tribune reported that suicides are by far the most common cause of unnatural deaths in jails and most of those are hangings. (See additional Trib coverage of regulatory and mental health issues arising from the case.)

Last year in Texas there were 615 in-custody deaths; 410 were in TDCJ (excluding 10 executions) and the rest were police shootings or deaths in jails. (Here's the AG's running list.) Suicides are the most common source of jail deaths besides natural causes. As I've written before, while advocates worldwide focus on Texas' death penalty, few advocates or media similarly prioritize confronting this far more common way to die behind bars:
These deaths were never scheduled, thus never delayed, and for the most part no newspaper reporter ever told their stories. But they remain just as dead as the men and women killed in the execution chamber, their families grieve as ardently. Dead is dead, even if humans seem to suffer from a desire to make some deaths matter more than others. It's all the same to the deceased.
Sometimes Texas jails have struggled with this problem, sometimes they've ignored it. But now the issue has moved to the front burner. The Bland case raises the question: What obligations are incurred by a jail when they learn through the intake process that an inmate has an acknowledged history of suicidal thoughts? The Commission on Jail Standards issued Waller County a red card over inadequate monitoring:
The jail was also cited for failure to personally observe an inmate at least once an hour, according to the Commission's executive director, Brandon Wood. The jail was previously cited for violating the 60-minute observation standard in 2012, after an inmate hanged himself with a bed sheet.
So this happened before, they were cited, but they didn't fix the problem. Even so, it's unclear that even checking in once every 60 minutes would have prevented what happened. Should there be requirements for video monitoring for inmates at risk of suicide? That would require more money for equipment and staffing, but nobody ever said it should be cheap and easy to take away someone's liberty.

Those are just a few examples of policy issues arising from the Bland case and I bet the County Affairs hearing next Thursday will identify more.

Sandra Bland's friends and family are raising a ruckus because she was a special person. Unfortunately, the circumstances surrounding her unjust detention and preventable death weren't special at all. One can can learn much from what's unique about this young woman's case, but perhaps even more from what it has in common with dozens or hundreds of others. Viewing the episode analytically can be difficult amidst the natural reactions of anger, shock, and grief, not to mention understandable defensiveness on the part of authorities. But it's necessary and implicitly those broader lessons are why her death matters to every Texan, in addition to the people who knew and loved her.

Implementing the Michael Morton Act

For those interested, the Texas District and County Attorneys Association posted their Brady/Michael Morton Act training materials online, as well as a list of prosecutors in compliance with new legislative training requirements under the law.

See this earlier Grits discussion of emerging issues with the Michael Morton Act, including examples of noncompliance and odd legal interpretations by some prosecutors. That post adumbrates a report published this spring on the topic and your correspondent recently recorded an interview with one of the authors, which I'll wait to post while I'm on vacation next month.

Wednesday, July 22, 2015

Resources on Texas and federal hair microscopy reviews

Today I compiled these resources for a colleague on Texas and federal reviews of flawed forensics in hair microscopy cases and thought there may be other Grits readers who're interested:
There's also a good discussion of the limitations of microscopic hair analysis with useful footnotes in this fat but useful reference book, which sits on a shelf above me but is also available online. And the problems with hair microscopy share themes with other non-scientific comparative forensic disciplines critiqued in Chapter 5 of this 2009 National Academies of Science treatise; here's a link directly to the subset of that discussion on hair analysis.

Sunday, July 19, 2015

How much is too much? Estimating maximum caseloads for Texas lawyers representing criminal defendants

When the Texas Indigent Defense Commission issued its "Guidelines for Indigent Defense Caseloads" in January, your correspondent had little bandwidth to devote to the lengthy, detailed document beyond adumbrating the basics regarding what maximum recommended caseloads would look like. But I'd tacked the report onto my ever expanding summer reading list to examine this important document more closely, and when I did, it didn't disappoint.

The report was written by Dottie Carmichael and her team at Texas A&M's Public Policy Research Institute, combining several distinct bodies of research.

First, it compiled newly available data from counties and attorney self reporting which was mandated to be gathered under HB 1318, passed in the 83rd (2013) Texas legislative session. Nobody's done much analytical work with this dataset yet beyond what's in this report, at least that's been made public, but the attorney-level data now being compiled will only become more robust over time and can't help but influence public policy. If nothing else, counties for the first time can learn how many cases attorneys  in their jurisdiction are taking in other counties. A local attorney who may not appear to have an excessive indigent caseload may be way over the top when one considers cases across counties. Now counties can do so, and so can her clients.

The report also utilized individual attorney time-keeping studies, opinion survey tools, and a Rand-Corporation developed process for determining expert-opinion to estimate how much time attorneys should be spending as opposed to what they're doing now. That normative assessment builds substantially on a framework derived from the state bar's "Performance Guidelines for Non-Capital Criminal Defense Representation." Bottom line: Criminal defense lawyers spend far too little time investigating their cases or communicating with their clients, the study found. And they should be taking more cases to trial, perhaps a lot more, particularly in felony cases. (See the report for their detailed breakdown of the data, I'm only describing topline, summary impressions.)

It was pretty ambitious project, and they took a solid first stab at it.

Grits has a general policy of deferring to folks who are obviously much smarter than me on their issues of expertise. So, to explain the meaning of and context surrounding these guidelines, your correspondent cheerfully yielded the floor to Becky Bernhardt, who this year replaced Andrea Marsh as executive director at the Texas Fair Defense Project. Grits asked her to stop by to visit about the TIDC report and recorded part of the conversation for a podcast. Listen to it here:

Or, mercifully, as your correspondent has a face made for radio and a voice made for print, reader donations make it possible to provide a full transcript of our 18-minute conversation below the jump.

Roundup: The contested, alleged suicide of Sandra Bland in the Waller County Jail

Your preoccupied correspondent had not until this morning read the voluminous press surrounding Sandra Bland's untimely and unlikely suicide in the Waller County Jail last weekend. For those, like me, playing catchup on the story, here's a sampling from the barrage of coverage:

Saturday, July 18, 2015

DNA match statistics overstated, news delayed scheduled execution

Reported AP's Michael Graczyk, "The Texas Department of Public Safety sent a notice June 30 that the FBI-developed population database used by the crime lab in Texas and other states had errors for calculating DNA match statistics in criminal investigations." The Texas Attorney General's Office informed attorneys for Clifton Lamar Williams of the issue on Wednesday and the Court of Criminal Appeals halted his execution scheduled for Thursday night and ordered the trial court to hold a hearing.

The math error overstated at trial: "Williams is black, and prosecutors said the probability of another black person with the same DNA profile found in [the victim's] missing car was one in 40 sextillion. Jurors in 2006 were told the probability was one in 43 sextillion. A sextillion is defined as a 1 followed by 21 zeros."  Of course, there are only 7 billion (nine zeroes) or so people on earth, so that statistic essentially told jurors it's nigh-on impossible it was anyone else.

Whether this issue will prevent rather than delay his execution is another matter. "Challenges to DNA evidence and arguments about Williams' guilt were not included in previous appeals from Williams, whose lawyers had argued unsuccessfully in earlier appeals that his legal help at his trial was deficient and that he was mentally impaired and therefore ineligible for the death penalty," reported Graczyk, and there was plenty of other evidence. "Williams led police to a pond where [the 93-year old victim's] purse that had contained about $40 was found, along with a knife from her kitchen that investigators believe was used to stab her."

Perhaps the racial frame cast upon the testimony explains the astronomical numbers. In previous coverage of the issue I've never seen overestimates range to the sextillions, which sounds like the forensic analyst and the DA in my hometown employed a particularly extreme version of this error at Mr. Williams' trial. Regardless, the DPS notification affects lots of cases besides his, even if delaying Williams' scheduled execution appears to have engendered the first public report of the DPS notice, that I've seen anyway.

The Hays County DA posted a copy of the notice from DPS on their website.

Texting ban proponent: If new laws don't improve safety, at least they make people 'feel weird'

Better late than never, the Dallas Morning News' Tom Benning offered up an assessment of research regarding the public safety benefits, or rather the lack of documentable safety benefits, from municipal ordinances banning texting and cell phone use, titled, "Do cities' texting-while-driving bans reduce crashes? ¯\_(ツ)_/¯" (July 17). In a nutshell:
Texting or talking on the phone while driving is demonstrably dangerous — a fact that’s backed up by reams of research. There’s no denying either that cellphone use while driving can cause accidents — Austin, even with flaws in the data, saw 70 of those wrecks in 2014 alone.

But banning the practice doesn’t necessarily reduce accidents.

A Dallas Morning News analysis of the imperfect crash data in 12 Texas cities with cellphone rules found no consistent reduction in distracted driving wrecks after cities enacted bans. And that follows equally mixed reviews found by scientific studies on statewide bans on texting or hand-held cellphone use while driving in other states.

“It’s not clear the bans in place have had the desired effect,” said Anne McCartt, senior vice president for research at the Insurance Institute for Highway Safety. “There are a lot of issues related to enforcement, data and other things, but that’s the bottom line.”
Regular readers may recall past analyses of traffic accidents in states with texting bans. The story goes on provide this sumamry of the News' research, and others:
To see what impact these ordinances might be having, The News analyzed Texas Department of Transportation crash data for a dozen cities that have passed them. The data focused on wrecks in which cellphone use or distraction was a contributing factor.

But the statistics, which rely mainly on driver accounts from the scene of a crash, raised more questions than they answered.

Several cities saw the crash rate for cellphone-involved wrecks drop after implementing either a texting or a hands-free ordinance. But many of those same cities saw distracted driving crashes, which include the cellphone incidents, actually increase.

Did the ordinance actually reduce cellphone use? Or did it just make drivers even more leery to admit that they had been using their phone? Or did the elimination of one distraction behind the wheel simply lead to others?

Then some cities saw crash rates increase after implementing new rules. Some saw those rates go up and then go down. And some indeed saw an apparent drop in both crash categories.
But there are many variables at play.

In Corpus Christi, for instance, a police spokesman explained that his city’s precipitous drop in those crash rates was likely just the result of the fact that the department no longer fills out crash reports on wrecks that don’t cause at least serious injury.

Despite those challenges, some argue that such volatility adds to the need for a statewide ban on texting behind the wheel. That would reduce confusion drivers might face in knowing which cities have ordinances and which ones don’t.

Proving success, however, would still be a challenge.

Scientific studies on statewide bans have relied on insurance claims, hospital visits or crashes overall — and then tried to control for other factors that could affect the data. But that research ends up similarly mixed, with some showing success and others not.
The story concludes by quoting a supporter of texting bans saying that whether they're measurably improving safety doesn't matter. Instead, it's about changing the "culture."
supporters counter that the statistics are just part of the story.

They argue that the push against talking or texting behind the wheel is really about creating a culture change. And for that to take hold, they say, it means setting expectations state by state — and if need be, city by city.

“At some point in the future, it should feel weird and wrong to pick up a phone in the car,” said Beaman Floyd, director of the Texas Coalition for Affordable Insurance Solutions.
Proponents sell these new criminal laws by insisting they'll save lives, and if the data showed an improvement, they'd surely claim credit. But when traffic safety promises fail to materialize, all of a sudden the goal was really a "culture change" - not to measurably improve safety but to make people "feel weird and wrong to pick up a phone in the car."

Making people "feel weird" is not a usual or appropriate function for criminal law if there's no correlated public safety benefit. If changing culture is the goal, enforcement money would be better spent on an advertising/PR budget.

Thursday, July 16, 2015

Rick Perry on the cost of an effective criminal defense

How much does it cost to effectively defend oneself against felony charges? According to Rick Perry, upwards of two million dollars, or several thousand times what most Texas counties pay for representation of indigents in non-capital cases.

Perry didn't make that assessment in a speech, of course. But actions speak louder than words and according to his Contributions and Expenditures reports, estimated the Dallas News, he's spent more than $2.1 million on legal fees so far defending himself against charges of abuse of official capacity, no doubt with more to come

Wednesday, July 15, 2015

Some TDCJ treatment programs increase recidivism

A friend forwarded me a copy of this recidivism analysis from Texas Department of Criminal Justice prison rehabilitation programs, lamenting that "some of the TDCJ rehabilitation programs demonstrably make people worse."

Which ones? Four of nine programs showed participants' recidivism increased after two years in the free world, though after three years only two programs - specifically the Sex Offender Treatment Program and the Pre-Release Substance Abuse Program, the latter of which has consistently resulted in increased recidivism since the agency began studying it - displayed higher recidivism rates.

The two programs with worse outcomes after two years that came out slightly better after three were the Sex Offender Education Program and the Serious and Violent Offender Reentry Initiative.

The SAFP program is the TDCJ rehab program with the best results and was the only one to make a double-digit difference.

Guidance released on new truancy law

See more coverage of Texas' new truancy law and an editorial from the Fort Worth Star-Telegram. Meanwhile, the Office of Court Administration has posted materials to guide locals on implementation of the new law:

Tuesday, July 14, 2015

Update on federal crimjust reforms

President Obama delivered a major speech in Philadelphia today on federal criminal justice reform initiatives. (Read excerpts here.) Find below the jump a related press release/fact sheet issued by the White House:

Forensics nuggets

Grits was pleased that an associate turned me onto a blog by Penn State law prof. D.H. Kaye titled "Forensic Science, Statistics and the Law," which I've spent the morning perusing.

While somewhat of a challenge to your correspondent's math skills, the linked resources in this post on sources of error in DNA testing are excellent supplements to recent MSM reports, particularly this recent law review article critiquing common statistical descriptions of the likelihood of a match when trawling large DNA databases.

Especially notable from his archives: Two posts from February discussing error rates among fingerprint examiners, including an adumbration of a study which found a three percent false positive rate (among self-selected examiners who knew they were being evaluated). Most posts are fairly detailed fact-and/or-math-based assessments

Incidentally, Prof. Kaye was one of several authors in 2011 of a paper titled "The need for a research culture in the forensic sciences." So I suspect he was pleased as I was to see that the Texas-based Laura and John Arnold Foundation is funding a massive investigation by the American Association for the Advancement of Science into "the underlying scientific bases for the forensic tools and methods currently used in the criminal justice system," focusing on ten specific forensic disciplines:
  1. Bloodstain Pattern Analysis
  2. Digital Evidence
  3. Fire Investigations
  4. Firearms and Toolmarks/Ballistics
  5. Footwear and Tire Tracks
  6. Forensic Odontology- Bitemark Analysis
  7. Latent Fingerprints
  8. Trace Evidence- Fibers
  9. Trace Evidence- Hair
  10. Trace Evidence- Paint & Other coatings
"Reports will be issued for each of the fields specifying the quality of the existing literature and what research would strengthen the scientific foundation for that area. The project reports are expected to encourage basic research and contribute to improving the quality of forensic science used in the legal system," according to the AAAS website.

Judge Barbara Hervey of the Texas Court of Criminal Appeals is on the project's Advisory Panel. See related coverage from Forensic magazine.

Sunday, July 12, 2015

For the birds: A tale of police and prosecutor overkill, and other stories

 Here are several items which may interest Grits readers:

DPS brass gets massive pay hikes, again

DPS brass continues to enjoy financial rewards that front-line state employees or managers in the private sector could only dream about. Reported the Dallas News, "DPS Director Steve McCraw and 56 agency executives have been given double-digit raises, with most increases reaching 17 percent." Some readers may recall that the Austin Statesman reported three years ago:
When Gov. Rick Perry made Steve McCraw the director of the Texas Department of Public Safety in 2009, only a dozen DPS employees earned $100,000 a year or more at the notoriously tight-fisted agency.

[As of 2012, there were] 73, reflecting an enormous growth in DPS management positions and pay since McCraw, an ex-FBI agent who formerly led the governor’s Homeland Security office, took charge of the department in August 2009.
Under the new management pay scheme, though:
McCraw will now be paid $214,672 annually, up from $183,498. Two deputy directors, David Baker and Robert Bodisch, saw their yearly base pay rise from $176,460 to $206,458.

Figures released by DPS this month show that 15 assistant directors will now be paid $193,330 a year. Seven regional commanders will receive an increase to $176,026. Also, 32 deputy assistant directors will see their annual salaries rise to $161,109.
By contrast, reported the News, "Earlier this year, the Legislature granted many state employees a raise of 2.5 percent to offset increased contributions by workers to their pension fund." So most state employees at best broke even, while DPS managers were rewarded as though they hadn't been responsible for the ignominious failed border surge which has made the rest of the state measurably less safe.

There was no looming threat that these managers were going to leave state employment if they weren't compensated in such an over-the-top fashion. It's not like the free market is offering comparable pay for police administrators. And it begs credulity to imagine these raises were based on pay-for-performance: There's no way managerial productivity gains matched these pay hikes.

A cynic might suggest the state is throwing good money after bad, rewarding folks for going along to get along as first Rick Perry and now the Legislature politicized the agency and its mission. That probably overstates things, just as does the agency's claim that the raises are all merit based. The truth likely lies somewhere in between, though perhaps a bit closer to the cynics' camp than to those justifying the raises.