Dallas man exonerated via testing rape kit backlog

While I was on vacation in Mexico last week, Texas last week saw its first exoneration in which the District Attorney proactively tested samples from rape kit backlogs and the exoneree had pled out, long ago served his time, and was not actively sought DNA testing. Reported Mark Berman at The Washington Post (July 25):

In 1990, Michael Phillips was convicted of raping a 16-year-old girl at a motel in Dallas, Tex., where they both lived. Phillips pleaded guilty because, he said later, his attorney told him that as a black man who had been accused of raping a white teenager, he should try to avoid a jury trial. He went to prison for a dozen years and, after his release, spent another six months in jail after failing to register as a sex offender

Now, nearly a quarter of a century after he was convicted, Phillips’s name is being cleared. And, in an unusual twist, he didn’t even realize it was happening.

Hundreds of people have been exonerated through DNA testing, with 317 such post-conviction exonerations since 1989, according to the Innocence Project. This week, the office of Craig Watkins, the Dallas County district attorney, announced that Phillips, 57, was going to join their ranks.

Phillips, though, was not aware that DNA testing was going to prove his innocence, nor was he seeking such tests or pushing for an exoneration. He is the first person exonerated by a prosecutor’s office without doing these things, according to Watkins’s office and the National Registry of Exonerations.

“This is different from other exonerations…in a very important way,” said Samuel R. Gross, editor of the National Registry of Exonerations and a law professor at the University of Michigan. “The man who was exonerated, this wasn’t on his mind. He wasn’t thinking about it, he hadn’t thought about it.”

Instead, the first he heard about it was when someone from the Conviction Integrity Unit contacted him, Gross said. That unit was established by Watkins’s office in 2007 to review and investigate claims of innocence and other old cases.

It seemed inevitable that testing rape kit backlogs would reveal some innocence cases as well as help identify assailants in under-investigated rape cases. Maybe now that Watkins has broken the ice, other DAs will feel more comfortable testing for possible exonerations as well as to identify new suspects in cold cases. Congrats and good luck to Mr. Phillips, for whom it must feel like Christmas in July.

A glimpse into grand jury misconduct

Lisa Falkenberg at the Houston Chronicle has posted a four-part series describing abusive interrogation by a grand jury so intense it may cause a capital murder conviction in a police officer's death to be overturned. Teaser: Anthony Graves plays a pivotal, on-the-ground role:

• A disturbing glimpse into the shrouded world of the Texas grand jury system
• Mother of three pressured into changing story, but jailed anyway
• Anthony Graves helps open a painful door to the past, and perhaps the truth
• Cop was foreman of grand jury in cop killing

The episode provides a rare glimpse into the grand jury system: "Appellate attorneys were so outraged by a 146-page transcript of [Ericka Jean] Dockery's testimony before the 208th Harris County grand jury on April 21, 2003, that they entered it into the public record for judges to review." In the transcript, wrote Falkenberg, "grand jurors don't just inquire. They interrogate. They intimidate. They appear to abandon their duty to serve as a check on overzealous government prosecution and instead join the team." For example:

"If we find out that you're not telling the truth, we're coming after you," one grand juror tells Dockery.

"You won't be able to get a job flipping burgers," says another.

Dockery tells the group that if she believed [Alfred Dewayne] Brown actually killed people, she'd turn him in herself: "If he did it, he deserves to get whatever is coming to him. Truly," she says.

Ms. Dockery changed her story "after being told again and again to think about her children." The grand jury foreman told her he didn't believe her original story and, if she persisted in committing perjury, "you know the kids are going to be taken by Child Protective Services, and you're going to the penitentiary and you won't see your kids for a long time." Eventually she caved, told them what they wanted to hear about her boyfriend, then she was prosecuted for perjury for diverging from her original story. Her testimony was central to his conviction which sent him to death row. Ugly stuff. The trial judge recommended Alfred Brown receive a new trial but the Court of Criminal Appeals has sat on the case for more than a year without a ruling, Falkenberg reported.

Read the whole thing; it's very good and brief excerpts don't do it justice.

All Ten: DPS now fingerprinting every driver at renewal

Reversing a decade long policy implemented after the Texas House shot down the idea in 2003, the Texas Department of Public Safety earlier this year began taking all ten fingerprints of drivers when they apply for a license or a renewal. Previously they required only a thumbprint or an index finger if for some reason a thumbprint couldn't be taken.

But the Dallas News' Dave Lieber reported (June 7) that DPS license facilities now require drivers to give them all ten fingerprints, a policy change that took effect earlier this year with no publicity from the agency.

Long-time readers may recall that DPS sought similar authority back in 2003 and was smacked down by the Texas House. In 2004, Grits wrote a post titled "Why would they want all ten fingerprints?," and the question remains. Surely no more than a thumbprint would be required to prevent license fraud?

No, the real issue is they want to run fingerprints against state and national criminal databases. At first, DPS spokesman Tom Vinger told Lieber “As a point of clarification, fingerprint information collected at driver’s license offices is not run against the national fingerprint database. This is not authorized by the federal government or state statute.” But soon he changed his tune. A month later, Lieber quoted "DPS spokesman Vinger say[ing] the system has already led to the capture of three individuals wanted for crimes."

At The Watchdog.org, Jon Cassidy assessed this development in a way that jibed with my own recollection of where this issue had been left: All ten fingerprints is overreach. Did they think no one would notice? This idea was shot down in the Texas House 111-26 back in 2003 and I doubt it'd fare any better now. The Lege should take the opportunity next spring to reverse this decision, if DPS doesn't, and order the agency to expunge all but a thumb or index fingerprints for each driver.

That took a lot of chutzpah.

Immigrants (still) arrested at very low rates

A reporter pointed me to this page on the Texas DPS website titled "Texas Criminal Alien Arrest Data" posting material that Col. Steve McCraw has been using to promote the state's beefed up border strategy. Check it out.

The data, though, lack context. Notice that the first chart is not to scale - arrests of "criminal aliens" are in fact a small proportion of the whole: Eight percent of statewide arrests is much lower than the 16 percent of Texas residents who are foreign born. The rest were "Non Alien Arrestees," in DPS' parlance, which I guess is how we now label "citizens." (In this context, "alien" includes both legal and undocumented immigrants.)

In any event, foreign-born residents account for sixteen percent of Texas' population but just eight percent of total statewide arrests, by DPS' data. That's not exactly a raging crime wave.

TM interviews SA4 lawyers

Michael Hall at Texas Monthly has posted an interview with Mike Ware and Keith Hampton who were named criminal defense lawyers of the year by the Texas Criminal Defense Lawyers Association for their role championing habeas corpus relief for the San Antonio Four. Check it out. And congratulations to both of them.

Crime and violence data from Texas prisons

New data out on Texas prison crime and violence from the TDCJ office of inspector general: Mike Ward at the Houston Chronicle reported last month ("Prison crime not dropping with the population," June 20) that, "New statistics obtained by the Chronicle show that 3,001 criminal charges have been referred against imprisoned felons since 2009. Another 584 charges have been referred against correctional officers. Those numbers generally appear to be holding steady so far this year, even as the number of inmates housed in Texas prisons has dropped during the same period."

Also, "93 correctional officers faced criminal charges last year for crimes inside prisons, ranging from bribery to theft to sexual assault to official oppression. That is down from a high of 154 in 2009, according to the statistics made available under the Texas Public Information Act." Also, Ward suggested:

If the rate of prison crimes is staying roughly the same, other statistics underscore that cell block conditions are not improving much – and may be getting tougher. In April, officers reported using chemical agents on unruly felons 403 times, compared with an average of 262 times a month last year. Some 104 offender assaults were reported in March, compared with an average of 85 a month last year.

Despite the currently lower population of Texas convicts – just under 151,000 were housed in the 109 state prisons this week, about 9,000 fewer than roughly a decade ago – [TDCJ inspector general Bruce] Toney and other prison officials said they do not expect the number of prison crimes to decline much.

In addition to the stats, Ward supplied this remarkable anecdote as evidence of increased violence in Texas prisons, in this case instigated by staff:

Officials and guards acknowledge that the new numbers underscore that the Lone Star State's maximum-security lockups are living up to their long-standing tough reputation.

A March 17 beating at the Gib Lewis Unit near Woodville, in deep East Texas, highlights that.

There, shortly after 11 p.m., seven men stormed into a prison cell and began punching the inmate inside, a convicted Tarrant County burglar serving a two-year sentence. "Beat his a--," the attackers shouted over and over, as they held the inmate by throat, according to an internal report of the incident obtained by the Chronicle.

This, however, was no usual prison beat-down: The attackers were uniformed prison guards, led by a veteran lieutenant and a sergeant.

Investigators said both supervisors have been fired, and all seven guards now face charges of official oppression. The reason for the attack was that the convict, who had a history of harassing jailers, earlier had threatened a female guard.

As for the convict, he was paroled last week after serving about nine months, they said.

Good report (read the whole thing), but I'd be cautious in interpreting any one year increase or decrease too strictly; these are relatively small numbers and changes could result from a variety of factors. E.g., TDCJ has cracked down on contraband cases but that doesn't mean more contraband is coming in than before, only that the agency is now making a greater effort to enforce the rules.

And as an aside, God bless Mike Ward. If anything ever happens to him, there won't be one reporter left in the state consistently covering agency-level issues at the Texas Department of Criminal Justice.

'Pandering to lurid curiosity': Professional journalism and crime coverage

From the new, proposed ethics code for the Society of Professional Journalists: "Avoid pandering to lurid curiosity or following the lead of those who do."

Without "pandering to lurid curiosity," would there even be a crime section?

Give the code a read. Use the comments to name Texas journalists you think live up to its provisions, or don't.

Paul Kennedy on Michael Morton Act waivers

Houston criminal defense lawyer Paul Kennedy provided ground-level perspective on the Michael Morton Act waivers defense counsel are being asked to sign as part of plea bargains:

The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.

Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.

I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.

Kennedy also makes a strong point about how those waivers might play out when future revelations call into question old convictions that could be challenged under post-conviction habeas corpus writs, concluding:

Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?

Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?

If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.

We've already heard claims from prosecutors that the Michael Morton Act's requirements are too onerous. When Lege committees begin to evaluate the new law in interim hearings, they should also hone in on the propriety and utility of these waivers, which is a developing issue for the criminal defense bar. But in both cases, as Grits argued when prosecutors' complaints surfaced last month, I still tend to think, "The Lege should give the law a couple of years to get its legs under it, for prosecutors and cops to train on it, for judges to rule on it, for appellate courts to interpret it, for analysts to study more than anecdotes, before looking to alter a law that at most needs tweaking." Big ships turn slowly and the Michael Morton Act was a major change in how Texas prosecutors do their business.

That's why, all told, my preference would still be for the Lege to leave the law alone in 2015. It's hard to tell right now which issues will ripen and develop and which ones may lose steam. Prosecutors' complaints of extra burden may dissipate once systems are in place. And waivers will inevitably be litigated up the judicial food chain, given time, and limits potentially placed on their broadness in that venue. Maybe we'll look up in a couple of years and it will all have worked itself out. Or, if not, the Lege can have more time and track record to judge when deciding how to tweak this groundbreaking law.

How long should cops get to jail people without charges?

Here's a messed up story for you. If you've been arrested in Dallas but police haven't told you why, for the past quarter century officers had three business days to "to figure out what to charge an arrested person with and get the paperwork in, not including the day you were actually arrested," according to Amy Silverstein at the Dallas Observer's UnFair Park blog (July 1):

Sure, you can bond out of jail much sooner than three days if you have the money. Giving the cops a deadline, however, helps ensure that all defendants get treated fairly, at least according to the district judges who created and upheld the rule in the first place. "It's just saying you can't hold someone in jail without a case file," explains Judge Rick Magnis, who as presiding judge of the Dallas Criminal Courts has tweaked the three-day rule slightly over recent years, allowing a full 10 days for crimes like murder and assault.

But [in June], the Dallas Police Department famously released a bunch of inmates who weren't supposed to go free, and now Chief David Brown is blaming that deadline policy as part of the problem.

The policy, officially called the dry writ, is putting "a real strain" on officers, Brown told City Council ...

The police department has brought up the same concerns to the District Attorney's Office. "They have expressed to us that they need more time to properly investigate and file cases," county prosecutor Ellyce Lindberg tells Unfair Park in an email.

DPD and Dallas DA Craig Watkins' office want to extend their deadline from three to seven days for all felonies, reported the Dallas News (July 10)  Even if cops miss the deadline, noted Silverstein:

That doesn't mean the cases against those inmates go away. Cops can still take their sweet time to file the charges, even with the inmates out of jail. The deadline is just a way to keep the county from holding broke people in jail indefinitely while cops figure out exactly what those charges are. It's for that reason that defense attorneys say the deadline policy as it stands is a sensible one.

"People that cannot afford to bond out are entitled to get their accusations that they face against them in a timely manner, not just sit there and wait for them to do it at their own leisure," says criminal defense attorney Jose Noriega, describing Brown's recent complaints about the policy as "disingenuous".

It's true that other counties in Texas are more lenient than Dallas, allowing cops more time to hold suspects before filing cases. But outside of the state, the rules are often more favorable to the suspects. In New York State, for example, suspects must be arraigned within 24 hours after their arrest thanks to a 1990 court ruling.

The suggestion that "other counties in Texas are more lenient than Dallas," it should be noted, is not universally accurate. In Houston, for example, charges are filed in a much more timely fashion. Indeed, according to our pal at the blog Life at the Harris County Criminal Justice Center, an officer must phone the on-call Assistant DA assigned to intake, describe the incident and get agreement about the proposed charge up front before even making an arrest. Then, a judge is available 24-7 and defendants are informed of the charges at a probable cause hearing that usually occurs less than 24 hours after being booked into the jail. Austin and El Paso also process cases much more rapidly on the front end.

According to the Dallas News (June 29), though, some other counties allow even longer waits than Dallas:

Fort Worth police, for example, take suspects to their jail and then Mansfield’s jail until the county accepts the charge. The jail charges the department for holding inmates for more than five days without filing criminal charges, Fort Worth police spokesman Sgt. Raymond Bush said. ...

Collin County Sheriff’s Lt. John Norton said the department will notify judges if no formal charges have been filed on felony suspects within 60 days. For misdemeanors, the time frame is 15 days or 30 days, depending on severity.

Bexar County requests case files within 20 days. But it’s not a hard-and-fast deadline, said Cliff Herberg, the county’s first assistant district attorney.

Even so, Dallas' presiding District Judge Rick Magnis told the News (June 23) that

the time-limit policy is “what makes America, America.”

“The law is real simple,” Magnis said. “The Constitution in America says you can’t hold people without charges.”

This is an example of inefficiencies at the beginning of the process creating extra costs throughout the system, from an over-full jail to bloated court dockets. If much-larger Harris County can figure this issue out, there's absolutely no reason Dallas police and prosecutors need seven days to work out charges in routine cases.

Summer reading: 'Getting Life,' 'The Wrong Carlos'

Two important books about Texas innocence cases were published this week.

Texas Monthly's Pam Colloff has published some excerpts from Michael Morton's new autobiography titled "Getting Life," which came out Tuesday. The passages Colloff shared seemed well-written, e.g.:

prison is, more than anything else, a bureaucracy—a state-run operation where everything takes longer than it should, requires several tries before getting it right, and keeps the people who rely on it frustrated and angry. Imagine living every day at a state driver’s license office, with long lines, misfiled forms, and—too often—in­competence. Now, imagine that same scene with all the state workers carrying cans of Mace, radios, handcuffs, and—for those employees ringing the perimeter—shotguns and rifles.

Also out this week: "The Wrong Carlos"; from the Amazon description: "In 1989, Texas executed Carlos DeLuna, a poor Hispanic man with childlike intelligence, for the murder of Wanda Lopez, a convenience store clerk. His execution passed unnoticed for years until a team of Columbia Law School faculty and students almost accidentally chose to investigate his case and found that DeLuna almost certainly was innocent. ... Everything that could go wrong in a criminal case did. This book documents DeLuna's conviction, which was based on a single, nighttime, cross-ethnic eyewitness identification with no corroborating forensic evidence. At his trial, DeLuna's defense, that another man named Carlos had committed the crime, was not taken seriously."

Judge questions pot policy

In my email box this morning was a note from Senior District Judge John Delaney from Bryan, Tx who offered up the following questions and observations, which I submit for Grits readers' consideration:

Here's an article about an estimated 15,000 marijuana plants with a street value of $7,500,000.00 found growing in northeast Washington Co., TX.

Makes one wonder:

1. Since this is a recurring story, just how much more of the stuff is growing in the woods of Texas?
2. Obviously there's a demand for the product or people wouldn't be growing it.
3. Law enforcement appears incapable of preventing this activity.
4. What will it cost in tax dollars to pull up 15,000 plants and destroy them?
5. Who are the  people in charge of this grow (and others), what other criminal activity are they engaged in, and at what cost to us?
6. Is their power growing or remaining relatively constant?
7. What if, instead of destroying this valuable crop, the law allowed it to be grown and sold legally and taxed?
8. Could we reduce the power of the criminals who provide this product by competing with them legally, like we did by ending Alcohol Prohibition?

Certainly Judge Delaney isn't the first to pose such questions, but they're good ones nonetheless. As Grits wrote last month, I can't imagine the Texas Legislature moving to end pot prohibition in their next session or two, though reducing penalties for user-level possession is a strong possibility. However, we're already witnessing a diffluence of opposition to legalization in opinion polls. Once everyone has seen how it has played out in Colorado and Washington state, particularly in terms of increased revenue, the terms of debate surrounding marijuana could change quite quickly.

Texas ranks near bottom in per-inmate healthcare spending

Here's a remarkable chart from the Pew Charitable Trust depicting the increase and, in Texas' case, the reduction in prison health care spending from 2001 to 2008:

Now, Texas has increased healthcare spending since that time frame, but we still rank among the lowest among states in per capita health spending on inmates in inflation-adjusted dollars:

Grits has watched with interest as the feds spanked California over inadequate prison health care and can't help but wonder if, at some point, the state may face similar litigation if the state doesn't either spend more on prison health care or reduce the prison population more to make the health budget stretch further.

Palau president defends John Bradley hire

Via Agence-France-Press, the President of Palau felt the need to explain the island nation's decision to hire former Williamson County DA John Bradley as a prosecutor in their Attorney General's office.

[President Tommy] Remengesau said Bradley acknowledged he was wrong to block the DNA testing and "is painfully aware that his actions kept an innocent man locked up for longer than he should have been".

But he said Bradley deserved a second chance and was seeking it in the island nation of 22,000 people, which is best known for its spectacular diving sites.

"Mr. Bradley says that the Morton case has changed him as a person and has made him a more balanced, fair, and humble prosecutor," Remengesau said in a statement.

He said Bradley had more than 25 years of prosecution experience and had never been found to have violated any law or ethical rule over the Morton case.

"The Republic hired Mr. Bradley because our nation needs experienced and skilled prosecutors to help keep our community safe Mr. Bradley fits that bill," he said.

Bradley is expected to start in his new role before Palau hosts the Pacific Islands Forum at the end of this month.

Hmmmm ... I thought Bradley had recanted his road to Damascus conversion rhetoric, but apparently it's a meme he still trots out when it benefits him, like in a job interview. Grits hopes it's true Bradley is a changed man and that he won't bring the same, misbegotten attitude and arrogance to Palau that he displayed as a prosecutor in Texas. OTOH, on the off chance he hasn't changed, I'd rather him perform that function on an island 8,000 miles away than here. Adios, JB. Don't let the door hit you in the ass on the way out.

MORE: A commenter chastised me for this post engaging in "snark." However, since I didn't consider this post particularly snarky, let's add some. I'd mentioned earlier that this story sounded like a bad sitcom plot. A friend of the blog emailed this morning to say, "I have a name for the reality show that Bradley will star in: Kangaroo Court. Or maybe Banana Republic. Can [Charles] Sebesta be in it too?" 

Imagine JB will be prosecuting in a place where more people speak Palauan than English, natives live in a matrilineal society, and at least some of them dress like this:

I located the job posting for Bradley's new gig on the Texas District and County Attorneys Association (TDCAA) website; for his sake, I hope $65K goes further in Palau than it does here.

For a nation of about 20,000 people, Palau has 145 cops, which seems like overkill until you realize they must cover around 250 islands that, according to Wikipedia, span an area of ocean the size of France. One of the big crimes they're focused on is illegal fishing with dynamite. A State Department report mentioned that, as of 2012 in Palau, "There were 51 prisoners, including one woman and one juvenile. The prison can hold up to 80 prisoners." During his Williamson County days, Bradley's shop would have filled up that prison in a week or two, so this new scenario will be quite a change of pace for TDCAA's 2009 Prosecutor of the Year.

AND MORE: Here's a statement from Palau's president on the hiring.

Texas' paltry mental health infrastructure strains justice system

There's been lots of MSM coverage over the last month regarding mental health and the Texas criminal justice system. Here are several articles I've run across that merit readers' attention:

• Yourhoustonnews.com: Texas has nowhere but prison for most mentally ill convicts
• Fort Worth Star-Telegram: State mental health program is in crisis, requiring immediate action
• Killeen Daily Herald: Analysis: Pay for mental health or pay for jailer
• Houston Chronicle: Texas Department of State Health Services is in a crisis and needs attention
• Dallas Observer: Texas increased mental health funding but Dallas isn't getting the money - and it hurts
• Dallas Observer: It really sucks to be mentally ill in Texas
• Community Impact Newspaper: Austin mental health facilities now operating at full capacity
• KFDA-TV: Mental health treatment for those who end up in the county jail 
• CNN: The real gun problem is mental health, not the NRA

State bar: 'Just cause' to think prosecutor Charles Sebesta commited misconduct

Charles Sebesta, the former Burleson County District Attorney who withheld evidence in Anthony Graves' 1994 capital murder case, may finally face disciplinary action by the state bar. But regrettably proceedings will be held in secret. Here's Texas Monthly's Pam Colloff describing the latest development:

It’s been eight years since the Fifth Circuit Court of Appeals found that the DA who prosecuted Anthony Graves for capital murder had done something unconscionable : withheld favorable evidence and used false testimony to secure a conviction—a conviction that sent Graves to death row.

Since that federal ruling came down in 2006, granting Graves a retrial, many good things have happened: Anthony was freed from prison in 2010, after all charges against him were dropped; he was formally exonerated by the State of Texas; and he received $1.4 million in compensation for the eighteen years he spent in prison for a crime he did not commit. But the man who secured his 1994 conviction—former Burleson County DA Charles Sebesta— never faced any consequences.  The state bar took no action against him. Even when he continued to impugn Graves’ character, telling Texas newspapers as recently as this January that Graves was guilty of murder,  he did so with impunity.

Finally, last week—twenty years after Graves’ wrongful conviction—the bar took a small but significant step toward ensuring that Sebesta would have to answer for his actions. The bar’s chief disciplinary counsel determined that there was “just cause” to believe that the former prosecutor had engaged in misconduct in Graves’ case. This finding followed a lengthy investigation, which the bar conducted after Graves brought a grievance against Sebesta this March. (Graves was only able to do so because lawmakers recently passed Senate Bill 825, which changed the existing statute of limitations, allowing exonereees to file such grievances with the bar up to four years after their release from prison.)

A legal proceeding will now follow, in which the bar will decide whether or not to dismiss the grievance, or sanction Sebesta. If the bar decides to sanction him, he could receive a punishment as light as a reprimand—essentially a slap on the wrist—or as severe as disbarment.

Though Sebesta has always put great stock in trying people before the court of public opinion—to this day, he continues to insinuate on his website that Graves is a murderer —he has asked that the bar hear his case in a confidential proceeding, rather in than open court. (The bar allows attorneys who are the subject of such grievances to choose whether they will have their cases heard in a district court before a judge or jury, or privately, before a panel of lawyers who serve on the bar’s grievance committee.) “His conduct against Anthony Graves was in a public proceeding and he continues to make public attacks on Mr. Graves,”  said Kathryn Kase, executive director of the Texas Defender Service, a non-profit organization that represents Graves, along with attorneys in the Houston law firm Susman Godfrey. “He should defend his conduct in a public proceeding, for all to see.”

There’s no word yet on when the bar will make its determination about Sebesta. Whether or not the bar will take action at all still remains to be seen. Except for the recent disbarrment of Ken Anderson, the ex-Williamson County D.A. who prosecuted Michael Morton,  the bar’s track record for disciplining prosecutors has been abysmal. From 2004 to 2012, in 91 criminal cases in which the courts decided that Texas prosecutors had committed misconduct, not a single prosecutor was ever disciplined.

For a long time, Sebesta has claimed that the state bar's prior failure to discipline him meant he'd done nothing wrong. (E.g., "Had I withheld evidence in the Graves Trial, ‘sanctions’ would and should have been appropriate. But that did not happen and the State Bar of Texas obviously agreed with their dismissal of the grievance!") But the bar's stated reason for failing to take action was a four-year statute of limitations on older cases. Then, Sen. John Whitmire's SB 825, passed last year, changing the statute of limitations for bar complaints related to withholding exculpatory evidence. Now, exonerees have up to four years after their release to file a complaint, which is the provision that placed Mr. Sebesta in the crosshairs.

Grits would love to have been a fly on the wall when Sebesta received the news about the state bar's latest action. I bet the old man was apoplectic. But I wish the former prosecutor had opted for a public jury trial instead of hashing it out in secret. Charles Sebesta never hesitated to go public with his various allegations and insinuations about Anthony Graves, and what's good for the goose ...

MORE: Find below the jump a press release from the Texas Defender Service on the topic, including a statement from Anthony Graves:

Crime lab misconduct, sex-offender residency, parole successses, and other stories

Hope you enjoyed a Happy Independence Day, Grits readers. Here are several items that didn't make it into independent posts last week but merit your attention:

Houston crime lab misconduct not caught by internal procedures
The Houston Chronicle reported (June 25) that Peter Lentz, the Houston crime lab tech accused of lying, improper procedure and tampering with an official record, was not identified by internal protocols but because, in February, he admitted the wrongdoing to two coworkers over drinks in a bar. MORE: From Paul Kennedy.

Texas civil commitment program melting down
The state's civil commitment program for sex offenders is imploding. The state plans to begin housing sex offenders in secure lockups because a halfway-house vendor is dropping its contract, citing public stigma and inadequate compensation. An attorney at the Harris County public defender told the Houston Chronicle that housing civil-commitment offenders in secure lockups is "clearly illegal." After all, they've already served their criminal sentences and are legally supposed to be undergoing outpatient treatment. Look for significant action on this topic next session, probably led by Sen. John Whitmire and Rep. Sylvester Turner.

'Getting Life': Michael Morton Memoir
Michael Morton has just published a memoir about his false conviction and imprisonment for the murder of his wife and the dramatic events surrounding his nationally publicized exoneration. See the Statesman's coverage.

Higher parole rate, fewer revocations account for leveling of Texas' prison pop
Insiders know that, despite the attention paid to Texas' 2007 probation reforms, the parole side has been the main reason Texas' prison population has leveled off and even modestly declined in recent years. Why? Via YourHouston News, Texas parole commissioner Lynn Ruzicka said new programming has facilitated higher parole rates for eligible inmates and lower revocation rates for parolees. For example, "Out of the inmates up for parole, 27-28 percent were released in 2001 while the current release rate hovers around 35 percent ... A 2 percent increase in approvals translates into approximately 1,500 additional parole releases per year and an annual savings of almost $26 million, a 2010 report by the Center for Effective Justice showed." Ruzicka specifically said, “The release rate is going up because of the programs we have.” Further, "parole revocation rates for parolees with active cases fell from 12.2 percent in 2001 to 8.2 percent in 2010, according to the Texas Department of Criminal Justice."

A lawyerly protest: Handing out cards
You don't see this every day:

More than a dozen of the city's best criminal defense lawyers converged Friday on the 11th floor of Houston's criminal courthouse to meet defendants and hand out bright yellow 3-by-5 cards explaining their constitutional rights.

It was part of a protest by the Harris County Criminal Lawyers Association against the way Michael Fields, a misdemeanor judge, handles initial appearances in his court.

"What he's doing is unethical, it's unconstitutional and it's illegal," HCCLA president Carmen Roe said after passing out several fliers. "When he starts trampling on the rights of defendants, that's when we get involved." ...

"We believe he's coercing defendants to either waive their right to a lawyer or enter a plea of guilty without their lawyer being present," said JoAnne Musick, a past president of HCCLA who was handing out fliers. "We've had complaints from people who asked for a lawyer and instead he handed them plea papers and had them enter a plea of guilty."

The judge, who denied any improprieties, said he changed his arraignment procedure earlier this year, a move that has generated the controversy. The Republican jurist has held the bench since being elected in 1998.

Paul Kennedy has called Judge Fields a "bully in a robe." Scott Greenfield provides more suitably outraged commentary.

Are compromised Van Zandt locks in other jails?
The Tyler Morning Telegraph posed the same question Grits asked in the wake of news about inmates compromising the locks at the Van Zandt County Jail: "Are the faulty locks in the Van Zandt County Jail in other jails?" For now, claims the paper, the surprising answer appears to be "no." "Executive Director of the Texas Commission on Jail Standards Brandon Wood said that as of now, the manufacturer does not seem to have that lock model in any other Texas jails, but they are still taking more time to confirm that, and see about locks in other states."

Wood said there are about three main manufacturers that make lock systems for jails in the state, but the company that made the flawed locks was not one of them.

“The type of lock that was installed, although it is comparable according to the manufacturers specifications to locks that are typically seen in Texas county jails, this was the first time we’d seen this manufacturer in the state,” Wood said.

Wood said even though the company was new, the locks it made met state standards.

For security reasons, Ray requested not to reveal the lock manufacturer’s name. Keeping that information away from inmates could stop them from trying to manipulate similar locks.

However, the locks with the faulty pieces seem to only be in one batch of one specific model. It doesn’t look like the manufacturer has locks from that bad batch anywhere else.

“We do not believe that any of those locks are in any other county jails, however we have issued a technical assistance memorandum and notification to the sheriffs to conduct a walkthrough of their own facilities and determine if they have any of those locks,” Wood said.

As every jail in Texas investigates its own locking system, the manufacturer in question is looking into any locks it has installed in other states.

They ought to publish the manufacturer's name. It's going to eventually come out, anyway.

Alleged civil service cheats indicted in Cameron County
Reported AP, "Eleven former and potential South Texas sheriff's deputies have been indicted in a civil service exam cheating scandal involving a cellphone image of the test."

Private prison focus: Immigration
The blog Texas Prison Bidness highlights documented troubles at five "criminal alien requirement" prisons in Texas covered in an ACLU report released earlier this month:

• Reeves County Detention Center
• Eden Detention Center
• Willacy County Correctional Center
• Big Spring Correctional Center
• Giles W. Dalby Correctional Facility

Forensics a 'decades-long experiment' sans scientific method
At Slate, Mark Joseph Stern picks up the meme that much forensic science isn't actually science, an uncomfortable fact made irrefutable by the 2009 National Academy of Sciences report calling for the application of the scientific method in forensic fields. He argues that, "Far from an infallible science, forensics is a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches."

Simpson: Fourth Amendment needs belated protection

David Simpson, a small-l libertarian Republican Texas state rep from Longview, authored an Independence Day column in his local paper opining that the US Supreme Court's recent ruling in Riley v. California was "desperately needed when just about any occasion now is deemed reasonable to search 'persons, houses, papers and effects' without the restraint of first having to obtain a warrant, despite the Fourth Amendment." Noted Simpson,

Interestingly, the Supreme Court recalled some relevant history in the ruling about searching cell phones. In the last paragraph of its opinion, the court recalls the remarkable words and actions of our American patriots, James Otis and John Adams:

“Our Cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled ‘General warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there and he would later write that ‘[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.’” According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”

The op-ed ended with this remarkable conclusion:

Regrettably, instances of such abuse of government force are all too frequent today. Just think of IRS audits, DOJ gun-running, TSA groping, assassination of American citizens abroad and, more close to home, the issuance of “no knock” warrants authorizing military-like home invasions by police at all hours of the day or night — not for protecting people from imminent danger such as kidnapping or armed robbery, but for possession of controlled substances … or even raw milk.

As we celebrate our independence and give thanks for our nation’s freedom, let us remember it is not simply our civil servants, police, firefighters and military that have made us a great nation, but a restrained, humble and wise use of the power we have entrusted to them and our own responsible use of freedom as citizens. Ultimately it is the blessing of God which keeps us from treading on our neighbor and keeps us living within the bounds of our Constitution.

That may be the first time I've seen anyone publicly link IRS audits of Tea Party groups and no-knock drug warrants as twin, equivalent government abuses. That's a rhetorical and political game changer if it's truly reflective of how grass roots conservatives feel.

RELATED: From the Texas Electronic Privacy Coalition (July 4): "SCOTUS opens a door: The Texas Legislature should step through."

LBB: Texas prisons won't fill up as quickly as thought

The Texas Legislative Budget Board's new adult and juvenile prison population projections (pdf) are out and the good news is the bad news has been retracted.

Altering its earlier estimate that Texas' prisons would run short of capacity by the end of the decade, the Legislative Budget Board now says that "adult state incarcerated populations are projected to remain stable throughout fiscal years 2014 to 2019 and to remain, on average, 0.6 percent below TDCJ’s internal operating capacity."

Wading through the bureaucratese, this is remarkable news: Despite Texas' rapid population growth in recent years, both adult and (especially) juvenile arrest totals have been declining, LBB noted. Indeed, adult arrests declined in all categories except drug offenses, which increased over the period depicted (p.5). Going forward, "The slight projected increase in the [prison] population is primarily driven by a projected 1.1 percent increase in admissions and a slight slowing of parole and discretionary mandatory supervision (DMS) case considerations and approvals."

So, if the state enacts policies that cause admissions to decline, or for that matter if parole rates remain stable, Texas could have more excess capacity going forward, even, than these cautious LBB projections would have it. Implementing just a handful of de-incarceration polices would let the state shut down even more prison units and shift resources toward prison healthcare and treatment programming.

'Fiscal impact of border security'? Spend less on roads

Texas Speaker of the House Joe Straus this week appointed a committee to focus on the "fiscal impact of border security and support operations." According to a press release, "Speaker Pro Tempore Dennis Bonnen of Angleton will chair the new committee. Its membership will also include Reps. Greg Bonnen of Friendswood, Myra Crownover of Denton, Drew Darby of San Angelo, Donna Howard of Austin, Oscar Longoria of Mission, Marisa Márquez of El Paso, Sergio Muñoz, Jr. of Palmview, John Otto of Dayton, Sylvester Turner of Houston and John Zerwas of Simonton."

Here's what's interesting to me. Before the recent episode with child migrants, Speaker Joe Straus had been maneuvering to have the House consider whether to stop diverting highway money to DPS and spend the money instead on transportation projects. Then, within a month or so of adopting that stance, the Speaker joined with the governor and lieutenant governor to approve an emergency expenditure of $1.3 million per week on expanded DPS patrols in the Valley. But a lot of the "extra" spending thrown DPS' way in recent years - $500 million, by Rick Perry's count - has gone to (IMO wasteful and pointless) border security operations. So Straus has endorsed both sides of this issue in a matter of weeks.

If Texas wants to divert money from DPS to roads - and in the big picture that's probably a wise prioritization of state expenditures - then politicians starting with Straus must find a counter to nativist scare tactics that have made "border security" such an unlikely spending imperative among the state's political class. Ironically, the mayor of McAllen doesn't believe there's a crisis or an "emergency." Perhaps Straus should look to him and other local officials in the Valley for rhetorical and policy responses to border-security hype. Otherwise, that hype will roll over him when he tries to expand transportation funding next year.

Inmates compromise jail locks in Van Zandt County

English jail cell door, UT Tarlton Law Library collection

Dozens of inmates were removed from the Van Zandt County Jail after "inmates figured out a way to compromise the locking systems." KLTV reported (July 2) that "one of the inmates figured out how to compromise the locks and started teaching others his tricks." Added the Tyler Morning Telegraph (July 1):

Following an inspection of the facility, it was determined that although the locks were functioning as designed, an engineering flaw existed with the mechanisms enabling a simple process to defeat the security of the lock.

This issue effected confinement cells in high security sections of the facility as well as ingress and egress access to the building.

State and County Officials were immediately notified of the situation and the Sheriff’s Emergency Action Plan was put in action.

Because the separate, newer constructed Minimum Security Confinement Facility was not equipped with the same locking systems, of the currently incarcerated 161 inmates, 90 were required to be transported to the Henderson County Jail and 35 to the Kaufman County Jail and the remaining female inmates were transported to the Upshur County Jail for the safety and the security of the inmates and the jail staff.

One wonders how many other secure lockups this same vendor has sold these locks to?
Surely tiny Van Zandt County can't be their only client. See this essay for more background on how locks in detention facilities can be defeated by enterprising inmates.

John Bradley to prosecute in island paradise

Grits had heard rumors that former Williamson County District Attorney John Bradley took a post working for the Attorney General in the Republic of Palau, an American protectorate of 20,000 people in Micronesia. I didn't mention this bit of gossip, half fearing it was a gag. But then an item in the Statesman and this column by the Houston Chronicle's Lisa Falkenberg confirmed the offbeat news. Concluded Falkenberg:

Part of me thinks everybody, even John Bradley, has the right to make a living, to learn from mistakes and to get on with life after grievous errors.

The other part thinks Bradley is still a danger to justice everywhere, even 8,000 miles away.

If you've never heard of Palau, check out these results from Google images. For a supposed hard landing that's pretty sweet. Hard to know what to make of this disclosure, but I'd echo the sentiments of Rob Kepple at the Texas prosecutors' association who told Falkenberg, "'It's been awhile,' ... referring to the Morton revelations. 'You know, maybe he gets another chance. Maybe he's got to go all the way to Palau to get it. But I wish him well.'" Me too. Bradley has seemingly floundered a bit since leaving public office and clearly needed to hit the "restart" button: I'd rather he do it there than here, even if the whole story sounds a bit like the premise for a bad television series.

Who knows? Perhaps in Palau, as opposed to in Williamson County, Bradley will have the opportunity to prosecute some of those important oyster felonies, if they have such a thing.

Border boondoggle: Lack of goal, success metrics, don't prevent squandering tax dollars

Image source

Texas has no valid plan or purpose for its recently announced $1.3 million per week commitment to expanding state trooper patrols along the border, judging from statements by Attorney General and GOP gubernatorial nominee Greg Abbott. From the Houston Chronicle (June 29):

Asked what a secure border might look like, Abbott said Sunday he didn't have a ready-made definition, but that achieving one was possible.

"If we can land people on the moon, if we can create iPhones and iPads," he said, "I think we can measure meaningful border security."

In other words, Greg Abbott doesn't know any more about how to secure the border than he knows about how to construct an iPhone or put a man on the moon.

So here we are: For the foreseeable future, Texas will spend $1.3 million more per week on border security than we did a month ago. But state leaders cannot identify an operational goal beyond meaningless platitudes (the goal is a "secure border" but Abbott can't define the term). And they cannot identify metrics to tell if the mission is a success or a failure (Abbott "thinks" it can be meaningfully measured but can't say how).

It's impossible to solve a problem one can neither define nor measure. Texas has spent hundreds of millions of dollars in recent years on similar border surges and by the state's own (often dubious) account, problems worsened. So why throw good money after bad? Any project where the government a) cannot define its goal, b) cannot measure success, and c) has pledged tens of millions of tax dollars ($67.6 million per year) with no end in sight, by definition qualifies as a big-league boondoggle in my book.

How Houston can boost police coverage without busting the budget

Say you're chief of the fourth largest police department in the country. You need more warm bodies to investigate crimes but the city's revenue cap means you can't afford to hire more officers. Why not use the ones you've got more intelligently?

A consultant's report (pdf) released last month found that Houston PD failed to investigate 20,000 offenses for which officers had "workable leads." Reported the Houston Chronicle, "The report noted that 15,000 burglaries and thefts, 3,000 assaults and nearly 3,000 hit-and-runs were not investigated last year. The data was based on monthly HPD management reports of cases with workable leads." From the Chron, see:

• 20,000 criminal cases not investigated in 2013 by HPD
• Chief: HPD can't investigate every crime and should not try
• Editorial: HPD needs help: More money won't cure ineffective management at the top
• Falkenberg: HPD woes are for us all to bear

I meant to post these links before now except Grits suffers from the same nagging feeling as Charles Kuffner that "We need more context to the HPD no-investigations issue." Many cases go uninvestigated for a variety of reasons, so is 20,000 typical, high, low? The low clearance rates on burglaries don't surprise me; we have the same issues in Austin. Reported crime has declined in recent years in Houston, so something's working in a positive direction. But whether that's because of police practices, demographic changes, economic improvement, declining background levels of lead, the rise of video games and cable TV, who knows? What's responsible remains largely a mystery.

In Houston, the announcement has predictably led to calls for H-Town to hire more police officers, so let's focus on that. Assume for a moment more officers are needed (and I agree with Kuff that how many is a legitimate debate). The city is strapped so how to pay for it?

Here's how to boost the number of police officers available on patrol while freeing up officers to work as detectives in the burglary and other backlogged divisions:

• Implement verified response for burglar alarm calls, requiring alarm companies to verify a crime was committed before dispatching police. These alarms are 98-99% false, almost never result in arrests, and account for 10-12% of most departments' patrol calls. This one reform would be the equivalent of increasing patrol staffing by ten percent.
• Begin to use discretion given police by the Legislature in 2007 to write citations instead of making arrests for driving with a suspended license and possession of marijuana.
• Follow Texas' other large cities by issuing paraphernalia citations for crack pipes instead of sending them to the crime lab to scrape traces off for state-jail felony possession prosecution. (See Harris County District Judge Mike McSpadden's letter to the Legislature urging this reform.)

Those three changes would free up many thousands of police hours without costing the city a dime - certainly enough to allow HPD to adjust staffing levels to create a few dozen new detective slots. Indeed, the last couple of bulleted items would probably save the county money, too.

Surging toward Groundhog Day, and other stories

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

Pointless 'surge': Waiting for the punchline
DPS' $1.3 million per week border surge IMO is a bad joke. Brandi Grissom must think it's Groundhog Day. How many "surges" have we witnessed in Texas since Operations Linebacker, Wrangler, etc.? What did they solve? And how will this one convince some teenager in Honduras not to begin the march northward fleeing oppression and poverty to come here for a job that Texas businesses want give him? The feds seem to have a more pragmatic response: bringing in emergency judges to process immigration cases. Maybe this would be a good time for the US Senate to fill some of Texas' empty federal judicial posts.

Eat This
A Tyler company admitted no guilt as it entered into a $392,000 settlement with the US Department of Agriculture after meat it sold as pet food wound up being fed to inmates at the federal Bureau of Prisons.

'Pregnant women in Texas county jails deserve better than this'
Horrific. From the Dallas News (June 26), "A federal lawsuit in Wichita Falls shines a spotlight on a dramatic example of how the opportunity for lifesaving medical intervention is often missed in county jails. In this case, a child was tragically lost." See the full, gut wrenching column coauthored by the Texas Jail Project's Diana Claitor and Burke Butler of the Texas Civil Rights Project.  

Arson and false convictions
As evidence that Texas' arson review has had national influence, check out this NBC piece on a Michigan man exonerated in an arson-murder case. It hails Texas as authoring "the most comprehensive overhaul of fire investigation in the nation" and holds up the state fire marshal's review of old cases as a model.

Weather litigation heating up with summer
The Dallas Observer has details from one of the lawsuits over excessive heat at Texas prisons focused on the Hutchins State Jail. Wrote Sky Chadde, "Larry McCollum's death received most of the press. McCollum was a 58-year-old Hutchins inmate -- in for a nonviolent crime -- who suffered a seizure after several 100-degree-plus days in a row. At the hospital, his body temp was 109.8 degrees. He fell into a coma and died six days later, from living in a place with high temperatures and no A/C. Lawyers from the Texas Civil Rights Project sued the Texas Department of Criminal Justice, which runs the state's prison system. That lawsuit is still playing itself out, but now the department has another one on its hands." The story noted at the end that, "Recently, the AP reported that the criminal justice department is hoping to make seven state prisons a little more bearable by using large fans, like those football teams use to cool down on game days."

FBI to TX: Give our informant a PI license
Eric Dexheimer at the Austin Statesman has the story of an FBI informant with impeccable references from his handlers who was nonetheless turned down for a private investigator license because of his criminal history.

Bad analogies and the Fourth Amendment
Here's hopeful assessment from Vox of the import of yesterday's SCOTUS decision that cell phones can't be searched incident to arrest. "The Supreme Court's new attitude is best summarized by a single sentence in the opinion. The government had argued that searching a cell phone is no different from searching other items in a suspect's pocket. That, the court wrote, 'is like saying a ride on horseback is materially indistinguishable from a flight to the moon.'" Much of the debate surrounding the Fourth Amendment in the 21st century hinges on bad analogies, the author argues.

Habeas corpus post-Guantanamo
The Stanford Law Review has a nice little summary of the effectuation of federal habeas corpus and due process rights in recent D.C.-circuit case law for prisoners at Guantanamo Bay.

There are also worthy, recent items at Texas Prison Bidness, Defending People, and The Defense Rests.

LBB brief: 'Adult parole in Texas'

The Legislative Budget Board today published a two-page issue brief titled "Adult Parole in Texas" (pdf) - a pretty general overview that is perhaps most useful to those already familiar with the system for the list of budget line items affecting parole in the current biennium at the end of page two.

Texas CCA beat SCOTUS to punch on cell-phone search issue

The US Supreme Court unanimously ruled today that law enforcement may not search the contents of cell phones incident to arrest without a warrant. This decision will be much-heralded as a victory for privacy, and rightly so. But I wanted to take a moment to point out that, for once, the Texas Court of Criminal Appeals was ahead of the curve on this one, ruling 8-1 in February that law enforcement couldn't search the contents of arrestees' cell phones without a warrant after they'd been booked into the jail. Grits criticizes the CCA when I think they get things wrong - to the occasional annoyance of more than one member of the court - so it's worth acknowledging when they got it right. This time they did.

MORE: See a SCOTUSBlog symposium on the new case.

Some prosecutors demanding waivers from defense before handing over Michael Morton Act discovery

Since Court of Criminal Appeals Judge Barbara Hervey's Criminal Justice Integrity Unit announced it will address issues raised by stakeholders related to the Michael Morton Act at their next meeting in the fall, here's a topic for her list from the Texas District County Attorneys Association's discussion forum: Can/should prosecutors seek waivers from defense counsel for any further discovery of inculpatory evidence when they hand over the information required under the Michael Morton Act?

A prosecutor from Wharton County opened the discussion with this June 10 post:

Our defense bar is very unhappy we are using a 39.14 waiver (which only waives further discovery of inculpatory evidence AND NEVER exculpatory evidence). Anybody else dealing with this? [Ed. note: 39.14 is the Michael Morton Act]

Do we need a waiver?

Should it blow up a plea if counsel won't agree or acknowledge the waiver?

I've also heard some judges won't allow a waiver? Anybody run into this?

I was pretty sure I had thought this all through already, and a waiver was the way to go when we enter a plea. Things are getting messy, though. Anybody out there running into any new related 39.14 issues?

A prosecutor in Collin County said they required a similar waiver. In an additional post, the Wharton County prosecutor clarified, "All we are asking is the waiver of any further right to inspect or copy discoverable items other than Brady and/or subsection (k) items."

I'm not a lawyer so perhaps some defense attorney readers can explain to me: Why would anybody sign that? The prosecution is required to give the defense statutorily required discovery under the Michael Morton Act, whether counsel signs a waiver or not. I understand why the prosecutors might want a waiver, but what's in it for the defense side? Thoughts?

Also, have defense counsel in other jurisdictions encountered similar waivers? If so, please say where in the comments. (In fact, if you're willing, email me examples if you've got them at gritsforbreakfast@gmail.com.)

Anyway, the CCA's integrity unit can add this to the list of Michael Morton Act issues they should delve into this fall. To my knowledge, nobody's really examined closely how the new law is being implemented on the ground. Doing so in a public forum with all the stakeholders in the room will be a mitzvah.

On 'The Excessive Militarization of American Policing'

National ACLU this week published a new report titled "War Comes Home: The Excessive Militarization of American Policing." (Hmmm, seems like there was a recent book on that topic.) I haven't had a chance to read it yet but thought I'd pass the link along. There appear to be quite a few Texas-specific details and examples in the full report (pdf), for anyone interested. I also found their framing of the issue potentially compelling: "Nearly 80% of the SWAT raids the ACLU studied were conducted to serve search warrants, usually in drug cases. With public support for the War on Drugs at an all-time low, police are using hyper-aggressive, wartime tools and tactics to fight a war that has lost its public mandate." (Wonder how that would test on a poll?) They've even produced a pretty potent passel of short web videos, maps, slideshows, and other online accoutrements supporting its release. Nicely done.

Audit: Failures of oversight at Dallas police academy

Grits has not been closely following the ongoing back and forth between the Dallas police chief and local police unions over failures in management, allegations of racial bias, supposed lax standards for new recruits, retaliation against whistle blowers,  etc., at the Dallas Police Academy.  The police union has accused DPD internal affairs of “Bullying and manipulating officers and civilians into providing manufactured statements that fit what the command staff may be looking for.” As DPD Chief David Brown put it, the whole thing is a "hot mess" into which I haven't had time to deeply delve.

But when I noticed in this article that the Texas Commission on Law Enforcement (TCLE) issued an audit of the academy this week, I asked for it under open records and thought I'd post a copy for anyone interested. Here it is:

• Dallas Police Department Academy Evaluation, 2014
• Response letter from Chief David Brown to TCLE, including action plan
• TCLE response to Chief Brown 

Not too much there, I'm afraid, that could help resolve the issues being raised between the chief and the unions.

TCLE found the academy's Advisory Board wasn't composed correctly, had no chair, and failed to function properly. There were also documentation issues. Nearly 20 percent of training rosters weren't submitted to TCLE within required time frames (30 days after completion), with the worst one 107 days late. DPD said a chair has now been appointed and plans to fix the rest.

One of the most strident complaints spurring the audit related to allowing students to take multiple retests of their driving test if they failed the first time. DPD has changed its policy to allow multiple retests but only if they're taken on the same day as the first one. They also created a policy for a single retest on written examinations if a cadet scores lower than 70.

Perhaps most concerning: The audit found that DPD exercised little oversight over in-service or academy curricula. Lesson plans hadn't been updated, contained insufficient detail, and the academy made little if any effort to ensure instructors were accountable for teaching from the lesson plan. And among instructors there was significant variation and little consistency regarding how students were graded. DPD was directed to "Develop a review of instructors to determine if the instructor is effective and ensure a process is in place to capture the student's critiques of the instructor." DPD says it will do so, but why wasn't it happening before?

Grits' own opinions on this nascent fiasco remain largely unformed. So far it feels more like a skirmish in a larger battle between the chief and the Dallas Police Association than a scandal in-and-of itself. But it does appear that DPD's management of the academy had become relatively lax and laissez faire, to say the least. So the episode gives the chief's critics more ammunition with which to attack him at a vulnerable spot where management is culpable. Ironically, cleaning house among academy leadership was probably necessary given that lack of oversight and supervision were the main flaws found in the TCLE audit. That won't stop the union from criticizing him, though. When there's blood in the water, sharks circle.

Private lab may have mixed up hundreds of DWI samples

Here's another mess for the Texas Forensic Science Commission to sort through, this time related to a private lab handling DWI blood work for Bexar County. The San Antonio Express News coverage ("Lab errors place DWI cases under scrutiny," May 23) opened thusly:

Hundreds of Bexar County driving-while-intoxicated cases now are under scrutiny after a forensic lab contracted by the county fired an analyst accused of turning in sloppy paperwork on several occasions — including once when she recorded names incorrectly on 350 blood samples.

Integrated Forensic Laboratories LLC in Bedford fired the employee, analyst Cherrie Lemon, on May 16 upon determining that she “misplaced, lost or destroyed another analyst's worksheet,” according to a letter the lab director sent to the Bexar County district attorney's office.

Multiple phone calls to IFL's lab director, Dr. Nate Stevens, and several others in the lab's parent company weren't returned Thursday.

Stevens' email states that IFL is conducting an audit to determine which, and how many, DWI cases were affected by the fumbled documentation. The investigation should be complete by May 30, he said.

“We have no indication that there's anything wrong with the test results, it's just that she can't testify,” First Assistant District Attorney Cliff Herberg said. “But I imagine there will be quite a few requests for retesting.”

He said there are “several hundred” cases that could be eligible for retesting, which takes a couple of weeks. Because many of the cases still are awaiting trial, Herberg said he doesn't expect any retesting to cause significant court delays.

Last summer, Lemon was scolded for a separate incident in which she recorded the wrong names on 350 blood alcohol cases, Herberg said, adding it remains undetermined how many of those cases originated locally. ...

But local defense attorneys are more dubious of IFL's work, and have correspondence detailing additional mix-ups involving Lemon and others. One letter from last August states that while correcting one issue, Lemon found that “many packages” of blood tubes had not been properly sealed before they were refrigerated; in another instance, lab employees left a bottle of acetone in a preparation room that may have contaminated blood samples.

“People do make mistakes, but at this point, it seems a little bit more systemic,” said Robert Featherston, president of the San Antonio Criminal Defense Lawyers Association. “Nobody wants to see anybody convicted on contaminated evidence, and everybody's real interested in getting this stuff retested, if we can figure out whose blood is whose.”

This is the sort of large-scale situation for which the state needs to establish firmer protocols, particularly for identification and representation of already-convicted defendants whose cases may have been tainted by forensic error. IFL is a DPS accredited crime lab so it falls under the Texas Forensic Science Commission's purview and the incident has already been reported to the commission by the lab, the Express-News reported. IFL has also got a brand-new general manager, I discovered via a web search, who's got quite a job in front of her reacting to this mess.

Via Paul Kennedy, who has some choice words regarding notification issues in particular. He argued:

Now not to be too persnickety here, but letting the state and its agents decide when defense counsel should and shouldn't be notified of potential evidential issues is a bit like letting the fox guard the hen house. The question isn't whether an audit revealed "issues" with any of the tests, the question is whether or not the revelations cast doubt upon the reliability of the test results.

The rule going forward should be that should any issues arise at a crime lab (or contracted lab), both the court and defense counsel should be notified. The court should then determine whether the problem is serious enough to compromise a test result (or to present the appearance that a test has been compromised).

For anyone who still harbors illusions that our modern day crime labs are as sophisticated and well-run as the labs on CSI and other forensic science procedurals, let this be a wake-up call. The purpose of a crime lab isn't to discover the truth - it is to produce useful evidence for the prosecution. This mission creates a culture where problems are to be swept under the rug lest those pesky defense attorneys find out what's going on behind closed doors. It's only when there are clear cases of misconduct that any of us find out just what happened.

That last observation in particular is right on the money. And it's one of the reasons I think the Forensic Science Commission has been valuable. The fact that problems must be reported to them and are publicly vetted greatly increases transparency, has produced numerous fruitful recommendations and outcomes, and has fostered a useful public forum for deliberation among stakeholders surrounding these topics, which is all it was ever really empowered to do. When they meet again in August, I'd expect the FSC to vote to investigate Bexar County case, based on their prior patterns. Seems right up their alley.