Shook: New Dallas PD policy on police shootings will be used against detectives in court

Reacting to this Grits post, former Dallas DA candidate Toby Shook says the Dallas PD's new policy to give police officers three days before answering questions about police shootings, ostensibly based on expert advice claiming it would make their memories more accurate, will be used against the department when their detectives are cross-examined in court. He writes:

I believe experts are correct but as Grits points out, why don’t we extend this same policy to suspects in shootings? What’s good for the goose is good for the gander. Police detectives often get very damaging statements from suspects shortly after the incident. At trial if the defendant’s story changes the prosecutor quickly argues to the jury that the defendant has changed his story and is lying. After this change in policy the best Dallas criminal defense attorneys will try to use this policy in their cross-examinations of Dallas Detectives. The new policy also allows the police officer the privilege of reviewing any video tapes of the incident. Dallas Criminal lawyers should also use this fact during cross-examinations.

I'm not sure Chief David Brown fully thought through the implications of this policy before he quietly changed it in deference to the police union.

Innocence news and notes

Here are a number of recent innocence-related stories that merit Grits readers attention. The Michael Morton documentary described in the final bullet airs tonight:

• Slate: How junk science and anti-lesbian prejudice got four women sent to prison for more than a decade
• Tulsa World: National exoneration registry tracks wrongfully convicted inmates
• Wrongful Convictions Blog: Misbehaving prosecutors almost always get off scot-free
• The New Yorker: The Interview: Do police interrogation techniques produce false confessions?
• Huffpost: Confession contamination in Cook County: Demonizing youth in false confession narratives
• The Innocence Blog: Demystifying false confessions
• CNN: Exonerated: Cases by the numbers
• CNN: 'An Unreal Dream: The Michael Morton Story,' premieres as CNN FILMS broadcast on Thursday, Dec. 5

Texas DPS won't use roadblocks sans legislative approval

Good news, via the Houston Chronicle ("State police to halt the use of checkpoints," Dec. 5):

The Texas Department of Public Safety will refrain from using traffic checkpoints following intense backlash after state police temporarily set up roadside stops in the Rio Grande Valley earlier this year.

DPS Director Steven McCraw said Wednesday that his agency will not use road checkpoints "anywhere in the state" until Texas lawmakers give their blessing.

The checkpoints were part of a politically driven "surge" by DPS along the border that "included a beefed-up presence of boots on the ground and patrols in the air and water." Of course, border regions are among the safest in Texas and media quickly pointed out that, by the metrics through which DPS claimed to have chosen the Valley for its "surge," they'd have been more justified "surging" in the major metropolitan areas.

The roadblocks, though, were the aspect that raised the public's ire. Now, says McCraw, "Until we have legislative support to do those, we won't do them anywhere in the state."

DPS wasn't checking for immigration status at the stops, so the real motive was to use the roadblocks to check for DWI and run drug dogs around the cars. Noted the Chron, "For more than a decade, the Legislature has rejected proposals to allow roadside checkpoints, which typically target drunken drivers. During the last legislative session, San Antonio Deputy Police Chief Anthony Treviño urged a committee of lawmakers to allow permanent sobriety checkpoints in the state."

IMO, the border security meme is merely a way to get the camel's nose under the tent and if law enforcement is ever given authority to do roadblocks, they'll use them all over the state for all sorts of reasons. The only restraints will be imposed by limits on resources. Lots of police departments want to use them for DWI and already some use bogus license and registration checks as a fig leaf to justify them. The Legislature, though, has consistently rejected that tactic and should continue to do so.

As an aside: Lately, Grits has come to believe that the end of the Cold War and the fall of communism was a huge factor in spurring US law enforcement and the courts to gut the Fourth Amendment and expand these sort of police-state tactics, which were once considered signature features of totalitarian states. As long as we had a Red Menace to compare ourselves to, law enforcement and politicians refrained from this sort of stuff because the public was so opposed to communism that adopting such tactics was considered un-American. The fall of communism meant the public no longer had a reference point for how far is too far. That freed up the government to pursue totalitarian tactics themselves, from roadblocks at the local level to the NSA spying on phone calls. An external enemy was replaced by enemies within - the drug war, drunk drivers, illegal immigration, terrorist "sleeper cells," etc. - and all of a sudden the government could justify just about any expansion of power.

That's why I find the backlash against DPS roadblocks and the agency's belated decision to reject them so heartening: It shows that, to some extent, at least, Americans have retained a semblance of a moral compass. Police roadblocks will surely be proposed again in the 84th Texas Legislature and, if they fail, again in the 85th. Those promoting expansion of government power and the diminution of individual rights will keep coming back to the well. But episodes like this make me hopeful that there's at least a chance to restrain the most abusive features of a totalitarian mindset that, 30 years ago, virtually every American abhorred.

See related Grits posts:

• 'Show me your papers, comrade': DPS vehicle checkpoints further degrade Fourth Amendments
• DPS backs of S. Texas roadblocks after lame justification debunked
• On the dubious constitutionality of DPS roadblocks

Texas municipal courts processing fewer traffic cases

The number of traffic tickets written in Texas' largest jurisdictions continues to decline, though a couple of the biggest municipal courts (San Antonio and Fort Worth) haven't lately been reporting their numbers to the Office of Court Administration. Scott Goldstein at the Dallas News updated his earlier reporting on the topic yesterday for Big D, reporting that the Dallas PD wrote 37,000 fewer traffic tickets last year than the year before and nearly 50% less than when they maxxed out in fiscal year 2007. (See more from the Dallas Observer.)

Seeing this, I asked the Office of Court Administration for statewide data on the number of non-parking traffic cases filed in municipal court to update this Grits post where I compiled similar information a couple of years ago. (These numbers don't line up precisely with the Dallas PD data, but give a sense of the statewide trend in an apples-to-apples format.) Here's the updated chart:

Notably, I'm told Fort Worth hasn't reported their data to the OCA since the reporting format changed beginning in FY 2012, and San Antonio only reported four months of data for FY 2013, so I didn't include their numbers for that year. (McKinney, not depicted, also has not reported since 2011.)

According to the municipal court data, traffic tickets in Houston declined nearly as much as in Dallas, with Austin not far behind. One also notices that much-smaller El Paso now hands out many more tickets than either the capital or Dallas (probably because near the border police are using traffic stops as a pretext to search for contraband and south-bound drug money). Tyler's numbers stand out; considering my hometown's population was just under 100,000 in 2013, almost 67,000 is a huge number of tickets on their part. And Lubbock's increase is particularly puzzling - they, and to a lesser extent Garland, and Plano, appear to be bucking the statewide trend.

I can't explain why Dallas PD reported writing 20.5% more tickets in 2013 than there were traffic cases filed in municipal court, but I'm sure there's some good explanation. The other source of data on traffic citations - coming directly from departments, as in Goldstein's story, as opposed to the municipal courts - would be racial profiling reports submitted to TCLEOSE. But not wanting to pay for (or wait for) the open-records requests, I'll leave that to somebody else to compile.

As was the case the last time we discussed this, I can't think of a good explanation for what appears to be a statewide trend toward writing fewer traffic tickets. A number of commenters offered interesting hypotheses two years ago, but nothing you could really hang your hat on. Let me know in the comments below why you think the number of traffic tickets in Texas' large cities is declining.

If your city isn't depicted in the above chart see the OCA municipal court data for 2010, 2011, 2012 and 2013.

TDCJ SNAFU reduced parole chances for thousands of inmates

Last week, KHOU-TV in Houston reported (Nov. 27) that the Texas Board of Pardons and Paroles failed to include letters of support from friends, family and even potential employers in as many as 86,000 parolee files, denying parole board members important information that reduced the inmates' chances for release from prison. Given that the entire Texas prison population is just over 150K, that's a substantial majority of inmates. Reported the TV station:

“We believe about 86,000 files (were affected),” explained TDCJ Spokesman Jason Clark. 

“Different inmates, somewhere in the correctional system?” The I-Team asked Clark.

“Yes,” he responded.

Those 86,000 files are parole files that may not have included support letters urging voters to approve an inmate’s release.

As the I-Team first reported, for months those letters were part of “general correspondence” that was electronically stored, but not put into inmates’ parole files.

Instead, those documents were shredded as part of a policy change inside TDCJ.

But Clark admits no one from TDCJ ever told the Board of Pardons and Paroles about the policy change.

So for months parole voters had no idea they were potentially reviewing incomplete files when deciding cases.

“Is it possible people are sitting in prison right now who legitimately would have had a chance to be paroled had this information been in there?” the I-Team asked Clark.

“You know, how this general correspondence would have influenced the parole decision, I can't speculate,” Clark said. “Those decisions come down to the Texas Board of Pardons and Paroles.”

So the I-Team took the question to the parole board.

A spokesman for the Texas Board of Pardons and Paroles said the Board doesn’t know how many reviews relied on an incomplete file and admitted that a year after the Board learned of the mistake, it had not initiated any process to re-examine any cases to see if they were affected.

However, that spokesman, Harry Battson, wrote in a statement that the Board, “closely monitored approval rates since December 2012 and identified no discernible differences with previous months.”

Mr. Battson's statement, though, was contradicted by Lance Lowry, leader of the union representing Texas prison guards. In response to the KHOU story he sent Grits and other media an email that read, in part:

Capacity issues are becoming a problem in TDCJ.  During the middle of session the population for TDCJ was around 152,000 inmates.  Now the population has increased to over 153,000.  Instead of the targeted decrease in population, the population has increased in Texas prisons, despite increases in funding for re-entry programs. 

The Board of Pardon & Parole should be targeting a reduction in the overall inmate population in Texas prisons, but is not. ...

Texas can't afford a high prison population due to its fiscal limitations and expanding needs.  Mistakes such as the one cited in the investigative piece by KHOU can not be tolerated. Losing 86,000 parole files may cost the state millions, if not billions in the long term. 

Texas needs to use it's available parole resources and continue on the model of getting Right on Crime by decreasing the population [and reducing] this fiscal burden.  With extreme underfunding, the prison system is a constitutional liability to taxpayers with Federal court intervention a major risk.

This is a major SNAFU. To the extent these letters contained offers of employment or places for convicts to live with family upon reentry, their omission could easily have caused the board to reject applications for release that would have otherwise been granted.

TDCJ executives received substantial pay hikes after the last legislative session, but the ones responsible for this screw-up should have received pink slips instead. One also wonders how parole board members and staff failed to notice when letters of support suddenly began to disappear wholesale from all the files they were processing. The level of negligence here across the board was pretty breathtaking.

At a minimum, TDCJ should notify the 86,000 inmates whose files were rejected and let them know that, if their families or others sent letters of support, they were shredded and never submitted to the parole board. And in cases where information was missing and the parole board denied release, there should be some process established for revisiting those cases. Even if it only affected decisions in a few thousand cases, that would make a big difference in a prison system hovering near capacity.

Harris County probation cleaning up its act, but judges could still screw it up

Since March, the Harris County probation department "has cut its drug testing volume in half" thanks to efforts of its new director, Dr. Teresa May, who was appointed in February and previously worked for adult probation in Dallas County, reported the Houston Chronicle yesterday. Upon her arrival, May "hired a consultant who found that many probationers had for years tested negative on hundreds of tests. The abnormally high test volume was a big part of the problems revealed last year."

To be clear, Harris County judges' excessive drug-test requirements had been documented well before last year. But judges ignored the warnings and refused to change their ways until the issue blew up in their faces. By then, the volume had so overwhelmed the department they could no longer reliably match sample results to probationers. At that point, judges scapegoated the previous probation director, blaming him for a situation their own policies and mismanagement had created.

These issues had been well-known for years. Describing the findings of the the Justice Management Institute (JMI) from 2005, Grits pointed out that, "Urinalysis requirements in particular, while popular among prosecutors and judges, take up a huge amount of staff time and cause delays throughout the system." JMI recommended back then that "The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered, for what types of drugs, how and by whom the tests should be conducted, what responses should be made to test results, and when (under what circumstances) the drastic step of [revocation] should be taken." It took a crisis, though, for judges to reconsider their approach.

The new director is also implementing a risk-assessment system that will hopefully prevent judges from applying cookie-cutter probation conditions to every defendant:

May, 52, came from Dallas County's probation department, where she helped implement a model that significantly reduced the number of offenders who ended up behind bars after their probations were revoked. The result was a lower jail population and a savings of millions of dollars.

May, who has a doctorate in clinical psychology from Southern Methodist University and had worked as a clinical assessor for the Dallas probation department, is working with judges to devise a similar model for Harris County, where the jail population swelled this year and the case load is nearly twice as high.

The model will depend on comprehensive assessments of offenders early in the probation process to determine whether they are at low, medium or high risk of reoffending so judges can set appropriate conditions, including whether to place them in treatment programs if they have drug, alcohol or mental health problems. ...

May said all probationers eventually undergo state-mandated risk assessments, but usually only after their probation terms are set and months after their initial arrests. That much lag time is not good for people who have substance abuse problems, she said.

"The probation conditions should be driven by what we identify in our risk assessment tool and in our evaluation," May said. "The offense alone doesn't tell you a lot."

The data show, for example, that intensive supervision or treatment programs can significantly reduce the recidivism rate among higher risk offenders. Lower risk offenders who have no drug, alcohol or mental health problems and a relatively stable life, however, often do worse when they are put into residential treatment programs where they can lose their jobs and homes and come under the influence of higher risk criminals.

A rough estimate May provided to the county's Criminal Justice Coordinating Council shows the model could save the county $6.84 million a year in the short term. ...

State Sen. John Whitmire, D-Houston, though, said probation terms in Texas - with Harris County being "the worst" - are far too strict, setting up offenders for failure and creating a "broken" system.

This is all good news, and kudos to Dr. May for getting the judges (so far) to buy into efforts to make their decisions more data-driven. But no one should be fooled that just hiring a new probation director will solve these problems. Harris County judges created them by ignoring good advice in the past and if they ignore Dr. May's evidence-based approaches going forward, in a few years they'll find themselves right back in the same spot.

H/T: Kuff.

MORE: While we're on the subject of judge-created clusterf#%ks in Harris County, Mark Bennett and Robb Fickman both have good posts up about the excessive use of pretrial detention in Harris County which is driving their too-high jail population. Fickman's comes in the form of an open letter to Harris County misdemeanor court judges that's a must-read for anyone concerned with the topic.

Rural counties treat prisoners as political footballs when drawing electoral districts

The Austin Statesman's Jonathon Tilove had a story over the weekend ("Prisoners can't vote but they can subtly effect political power," Nov. 30) on the impact of urban convicts housed in rural prisons on state and local redistricting, a topic this blog has addressed numerous times over the years. The story hones in on the difference between how counties handle prisoners when drawing commissioners court precincts compared to they're counted for state legislative districts. Prisoners can't vote in Texas until they're "off paper" (i.e, when their sentence is finished, including any time on parole), but they're included in Census population counts that inform redistricting decisions.

Bottom line: There are many rural counties that exclude prisoners from their counts because most or all of some precincts (each county is divided into four) would be populated by inmates if they were included in the count. But state lawmakers have balked at changing where inmates are counted to reflect their home counties because, particularly for state rep districts, it artificially boosts representation for GOP-leaning rural districts, inflating their number and diminishing the number of voters making up "blue" districts in urban centers. Unfortunately, it's state lawmakers who decide where inmates should be counted and, with the present Republican majority, that makes this a partisan political hot potato at the capitol.

The issue has been raised most prominently over the years by a group called the Prison Policy Initiative, and it was a new analysis from them that spawned this article. Here's a notable excerpt describing their findings:

“We found that most of the areas that gain additional political clout from prison gerrymandering on the state level reject the prison counts when they draw local districts,” said Peter Wagner, executive director of the Prison Policy Initiative, which he founded as a student at Western New England College School of Law more than a decade ago. “Our research confirms that faced with the absurd prospect of drawing a city or county district that is mostly — or even entirely — incarcerated, local governments are leading the way in rejecting prison gerrymandering.”

At its most absurd, had Garza County, population 6,461, not excluded the 1,995 residents of the Giles W. Dalby Correctional Facility from its redistricting, an entire precinct would have been made up of “criminal aliens” awaiting deportation, with not a voter among them.

The Prison Policy Initiative’s inventory listed 64 Texas cities and counties with what the report calls the greatest “potential distortion” — a measure of how much of a potential district could be populated by prisoners. All but nine have chosen to exclude that population in redistricting.

Yet in drawing state legislative districts there remains a strong rural rooting interest in maintaining the census practice of counting prisoners — just like college students, barracked stateside military personnel, and migrant workers — where they find them to be mostly living and sleeping on Census Day, and then including them in that count when drawing state House, state Senate and U.S. House district lines.

Why? Because those prisoners pad the population of sparsely settled rural districts, sustaining a House or Senate seat with far fewer eligible voters than other districts, undermining the principle of one-man, one-vote, and potentially someday affecting the balance of power in the Legislature because, in Texas, seven of the nine House districts with the largest prison populations are represented by Republicans.

According to the Prison Policy Initiative's website, 40 Texas counties exclude prisoners when drawing local precincts, even though all of them benefit at the statehouse from extra representation because of inmates counted there. They are: Anderson, Bastrop, Bee, Bowie, Brazoria, Brown, Burnet, Cherokee, Childress, Concho, Coryell, Dawson, DeWitt, Dickens, Duval, Fannin, Freestone, Frio, Garza, Hale, Haskell, Houston, Howard, Jack, Jones, Karnes, Kinney, La Salle, Live Oak, Madison, Medina, Mitchell, Pecos, Potter, Reeves, Rusk, Terry, Walker, Wichita, Willacy. Prisoners in those counties are being treated as political footballs - counted when it benefits local pols and discounted whenever it serves their interests. Hard not to view the whole situation as an expression of political cynicism, but then, that's true of the redistricting process in general, isn't it?

The Statesman story notes that Rep. Harold Dutton for years has championed counting Texas prisoners at their last known home addresses for purposes of redistricting, but the partisan aspects of the issue have continually thwarted him. Two states - Maryland and New York - have already changed where they count prisoners. Two more - California and Delaware - will make the switch with the 2020 Census. Grits would like to see Texas rationalize this mess by 2020 as well, but as long as the topic is considered through the lens of state-level partisanship instead of county-level pragmatism, changing it in the near future would be an uphill climb.

Dallas PD changes policy to enable police coverups after shootings

Regular Grits readers will recall the recent episode in Dallas where a police officer shot a mentally ill suspect, claiming he feared for his life. His partner said in a written report that the man had rushed at them with a raised knife when, in fact, a neighbor's surveillance video showed the fellow had first backed away then stood calmly with his hands to his side. DPD fired the officer and suspended his partner for 15 days.

Now, though, rather than beef up penalties for officers caught testilying, Dallas Police Chief David Brown has succumbed to pressure from the police union and changed the rules so that officers can no longer be questioned about shooting incidents until 72 hours after they happen. The Dallas News story ("Dallas Police Chief David Brown quietly changes shooting investigation policy," Nov. 27) announcing the new policy opened thusly:

Any Dallas officer involved in a police shooting — whether the officer fired a weapon or witnessed the gunfire — will now have the right to remain silent for 72 hours under a new department policy.

And even before they give a statement about the shooting, the officers can watch any available video before they give a statement.

Previously an officer who witnessed a shooting typically would have been required to give a statement to police investigators within hours of the event. And the officer who fired, while not required to speak right away, typically did so. The new policy now requires the firing officer to wait at least three days before giving a complete statement to investigators.

Chief David Brown quietly made major policy change less than a month after surveillance video went public in October that showed an officer shooting a mentally ill man for no apparent reason — contrary to a witnessing officer’s account that led to a felony charge against the victim.

“It is my belief that this decision will improve the investigation of our most critical incidents,” Brown said in an emailed statement.

An attorney for the shooting victim, who survived, said the policy will give officers involved in unjustified shootings time to make excuses.

But memory experts side with the chief.

Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.

One wonders, if "memory experts" say this is the better way to go, why isn't the same courtesy extended to suspects so their memory can be similarly improved? I'm sure suspects in criminal cases would be less likely to give contradictory statements if they could wait three days and review all the evidence accumulated against them with their lawyers before talking to police. What's good for the goose ...

An attorney for Bobby Bennett, the man shot in the October incident, correctly identified the real reason the police union pushed for the change and pointed out the obvious hypocrisy:

Don Tittle, one of Bennett’s attorneys, called the policy change “maddening.” Give police officers enough time, evidence and lawyers, and all their statements will sound alike and justify a shooting, he said.

Plus, he said, any other witness to a crime is asked to talk to officers at the scene, he said.

“If the goal is to seek the truth in an incident, then why would a witness to a police shooting be treated differently than a witness to any other incident?” he said. “No other witness is told, here, you have three days to get back to us. And, by the way, here is a copy of all the video of the incident so you can get your story straight.”

Grits doesn't buy for a moment the argument that the policy stems from memory science - where is the science that says people remember an incident better three days later compared to soon after it happens? A few hours later? Perhaps. Three days later? No way. By that time, one's memory begins the process of self-reinforcing a version of events that may or may not conform to what actually happened. (For more on the brain science behind that process, see here, here, and here.)

The "memory expert" quoted by the Dallas News is not a memory expert at all but a consultant who co-authored a book on how police officers can "survive" the emotional and legal aftermath of deadly shootings. Looking through her website and linked publications, one is struck by the one-side analysis. Yes, memory is less certain than was once thought - which is why we've witnessed so many DNA exonerations based on faulty eyewitness identification - but she never takes the next step to apply that observation to suspects, witnesses, or for that matter victims of police shootings. Her schtick is all about protecting the cop from negative consequences after a shooting occurs, right or wrong.

In a blog post on Friday, Dallas attorney Robert Guest made the obvious comparison to how police treat suspects: "This traumatic-event-impairs-memory theory could impact other cases as well. Take family violence cases, if we can’t trust officers memory of traumatic events how we can trust those who got in a fight with their spouse?" Guest sums up what's going on in the Bennett episode from a non-cop's perspective: "If you work in criminal justice long enough you see situations in which rules are broken often. Defendants break rules and face the unbridled wrath of the criminal justice system (which seeks to take their money, time, and sometimes freedom). But what happens when the Government breaks rules? More often than not, the government changes the rules so that they don’t get caught again." That's precisely what Chief Brown did here.

This shooting and the coverup that followed by the shooter's partner was an embarrassment for the Dallas Police Department, but not nearly as embarrassing as this shameless change in departmental policy. Just pathetic.

MORE: From Defending People and Simple Justice.

McLennan Sheriff ignores data, research on ill-conceived DARE program

In McLennan County, where District Attorney Abel Reyna's hard-nosed approach to plea bargaining has resulted in a dramatic uptick in the number of cases taken to trial, the Sheriff and county commissioners are struggling with how to provide sufficient courthouse security for all the extra court proceedings. The Waco Tribune-Herald reports ("Commissioners struggle to fund courthouse security for uptick in trials," Nov. 29) that the commissioners court is considering eliminating the DARE program and reassigning the deputies to courthouse security. Grits thinks eliminating DARE is a good idea no matter what the deputies do instead. As the paper noted at the article's conclusion:

national statistics do not support the idea that the DARE program is successful.

The Alcohol Abuse Prevention website states that the U.S. Department of Education doesn’t allow school money to be used toward DARE because it has proved to be ineffective in convincing children not to choose drugs.

“Scientific evaluation studies consistently have shown that DARE is ineffective in reducing the use of alcohol and drugs and is sometimes even counterproductive — worse than doing nothing,” the website states.

Sheriff Parnell McNamara said he is sensitive to the security and budget issues the court faces, but added he disagrees with national data and is against the elimination of the drug awareness classes.

McNamara said his task forces are working hard to eliminate drug activity in the county and that he fully supports anything that would give the department an advantage.

McNamara said 90 percent of the people he arrests are associated with illegal drugs in some way. He said the standard excuse for any criminal activity is being mentally unsound on an illegal substance.

“As serious as the drug situation is in McLennan County, I wish the court would look long and hard before doing away with the DARE program,” he said.

Leave it to McLennan County law enforcement to insist on a program that data shows is not just "ineffective" but "counterproductive." DARE is not a law enforcement initiative, it's a propaganda campaign. And prioritizing it at the expense of courthouse security is just dumb as dirt.

The upsides of recording custodial police interrogations

Regular readers know that requiring police to record custodial interrogations, especially in the most serious cases, is the final recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions that the Texas Legislature has yet to implement. The Crime Report this week published a good overview of the hows and whys of the issue, noting that the International Association of Police Chiefs has embraced the idea:

The International Association of Chiefs of Police has made wrongful convictions a priority. A recent article from Police Chief Magazine reported that the best practices to avoid false confession include recording the entirety of interrogations, and keeping secret some crime details to ensure innocent suspects do not just parrot back inside information gleaned from their interrogators.

Richard Leo, an academic who has been doing empirical research on police interrogation practices for 20 years and is a frequent expert witness in cases involving false confessions, said he is seeing a growing movement nationally to record confessions.

Leo said the movement has developed because of greater understanding of what causes false confessions. He listed, for example: 

• lying to suspects about the evidence against them;
• the length of interrogations;
• the propensity of people to comply with authority;
• mental illness or low intelligence;
• and implications from police interrogators that if a suspect makes an admission, he is “not admitting to a crime or admitting to something that has very serious consequences.”

Not only does recording interrogations help prevent false convictions (or at least identify them after the fact), it also provides better evidence for prosecutors and juries, prevents he-said she-said disputes about what went on in interrogation rooms, serves as a buffer against police misconduct, and prevents false accusations against police interrogators. “I think that police officers and prosecutors, properly trained, could do this and do it well,” said a prosecutor quoted in the story. “It would just enhance the cases and take away a lot of the arguments about coercion and force and things of that nature.”

One hopes the Texas Legislature will prioritize this issue when it re-convenes for its 84th session in 2015.

See related Grits posts:

• Shaky science, un-recorded confession lie form basis of El Paso habeas writ
• El Paso case highlights need for recording interrogations
• Canales: Record custodial interrogations
• Record interrogations, reduce false confessions
• Police arguments against recording interrogations allow fear to impede self interest
• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

Fran Keller released based on refuted junk science

Jordan Smith at the Austin Chronicle reports on another case where Texas' new junk-science writ has been used to free a defendant - this time Fran Keller, accused of abusing kids via satanic rituals at an Austin daycare - who was convicted based on false forensic science testimony. Reported Smith:

That [emergency room Dr. Michael] Mouw provided false medical testimony for the state at the 1992 trial was among the claims included in an exhaustive appeal filed on Fran Keller's behalf in January by Austin defense attorney Keith Hampton. A hearing on the issue was held in district court in August, leading Travis County District Attorney Rosemary Lehmberg earlier this month to agree with Hampton that Keller received an unfair trial, Hampton said. (An appeal raising the same claims was filed last week for Dan, and the agreed findings related to Mouw's testimony are also applicable to Dan.) The agreed findings have not yet been officially filed, Hampton said, because he was waiting for Lehmberg to sign a second copy that will be filed under Dan's name. In short, the state has agreed that the medical testimony presented at the Kellers' trial was false, was material, and likely affected the outcome of the Kellers' trial. As such, its inclusion violated their right to due process. In a press release late Tuesday afternoon, Lehmberg said that she agreed to the relief because of the "crucial nature" of Mouw's testimony, and the "reasonable likelihood that his false testimony affected the judgment of the jury and violated Frances Keller's right to a fair trial."

The fact that Lehmberg and Hampton have agreed to that finding, and to the fact that the Kellers conviction should be overturned, triggers a provision of state law that allows a district judge to grant a personal bond to release them from prison while the appeal continues to move through the process. The agreed findings will be forwarded to the Court of Criminal Appeals for final approval; once that happens, the case will be kicked back to Lehmberg to decide whether to retry the case.

As in the case of the San Antonio Four, prosecutors won't agree to Keller's actual innocence claim but have agreed to a new trial which, assuming the Court of Criminal Appeals signs off on her writ, will almost certainly never occur. (It's a rare prosecutor indeed who's willing to admit mistakes in such cases.) The main witness in the case, who was three at the time she was allegedly abused and four when the Kellers were convicted, was not a very credible witness and it was the forensic testimony that secured the conviction. At first, she accused the Kellers only of spanking her. But then, reported Smith:

With a bit of pressing, first by her mother and then by therapist Donna David Campbell, [those] initial allegation soon morphed, first into an allegation of sexual abuse and then, by the fall, into far more fantastic allegations – including that the Kellers took [her] and other children on plane rides to Mexico where they were abused by various individuals, that Fran cut off the arm of a gorilla at Zilker Park, that the Kellers performed a satanic bone-replacing ritual on one child, and that the Kellers forced the children to watch them sacrifice babies and small animals. Ultimately, Campbell concluded that [she]  was a victim of "ritual abuse."

No way Rosemary Lehmberg will take the case back to court based solely on that sort of garbage testimony. Noted Smith, "The Kellers were among hundreds of child-care workers across the nation who, in the Eighties and Nineties, were accused of being part of a network of satan worshippers who abused children taken to daycare."

Keller's husband, "Dan, who will turn 72 in prison on Friday, is slated to be returned to Travis County and finally released in early December," Smith reported.

MORE: From the Austin Statesman. AND MORE: From Texas Monthly's Michael Hall who credited Jordan Smith for reporting that "led directly to yesterday's release." He also added this observation:

Another similarity between the San Antonio [Four] and Austin cases is that both are being driven by changing science—the medical science of the hymen. The only physical evidence in the San Antonio Four case was testimony from a pediatrician named Nancy Kellogg, who said that a 2-3mm white “scar” (about the width of a quarter) on the hymen of one of the young girls making sex-abuse allegations against the four defendants could have been evidence of sexual assault. Now we know better. What about the dozens of other inmates in Texas convicted of child-sex abuse and sent away because of testimony that scars or lacerations on hymens were evidence of abuse? It’s safe to say we should expect to see more writs soon based on changing science. 

'I've been to Athens' ... and Paris ... and Muleshoe

Before this blog takes some time off for the holiday, let's round up a few items that merit Grits readers' attention:

'12,000 days later, Texas still won't release Jerry Hartfield from custody'
This is just pathetic. Conviction overturned, a new trial ordered, then 33 years in prison without any additional movement on his case.

Audits coming for county court costs
The Office of Court Administration will begin auditing counties' court collection reporting for data integrity as a result of recommendations from the state auditor. See here for more recommendations and the full report.

Good news: Gubernatorial candidate calls for red-light camera ban
The bad news: It wasn't Greg Abbott.

Scheck: 'I've been to Athens'

Barry Scheck of the national Innocence Project praised the Texas Legislature at a recent event in Houston for its willingness to pass innocence reforms, the Houston Press reported. While this comment bordered on hyperbole - "I went back to New York and told them, 'You won't believe this! I have been to Athens. They have a real democracy in Texas. You can actually get things done'"- it's true that, to my knowledge, Texas has passed more innocence-related legislation than any other state. Of course, we started with one of the most slanted, unfair systems in the country so we had (and have) a long way to go to catch up. (Ask Jerry Hartfield.)

Brennan Center Byrne grant recommendations behind the curve
The Brennan Center issued a new report suggesting improved performance measures for the federal Byrne grant program and establishing program goals aimed at reining in drug task forces whose focus on low-level drug busts contribute to over-incarceration. See the press release and the full report. Strangely, the report doesn't mention Texas' experience. In 2005, legislation by state Sen. Juan "Chuy" Hinojosa put drug task forces under DPS management and the agency implemented performance measures of just the sort the report advocates. When the task forces couldn't (or really, wouldn't) meet them, Gov. Rick Perry pulled the plug on their funding, shifting resources to specialty courts, diversion programs and border security. Back when I worked for ACLU of Texas, your correspondent authored a pair of public policy reports in 2002 and 2004 (see here and here) advocating for the establishment of better performance measures and the abolition of Texas' drug task forces, though none of that work was acknowledged in the Brennan Center report, which all in all struck me as about a decade behind the curve compared to debates over these issues in Texas.

Hope for probation reform
Check out this PBS News presentation on a strong probation initiative out of Hawaii called the "Hope program" which embodies most of the reforms Grits would like to see in Texas' probation system: Closer supervision of probationers for shorter time periods, with swift and certain consequences for probation violators short of actually revoking them to prison. As a criminologist in the story described the program, "What they have done with the HOPE model has been to ratchet down the level of penalty so that it's something you can actually afford to do and then ratchet up the likelihood that if you engage in misconduct, you will actually experience that penalty."

Why private prisons don't (and shouldn't) have immunity from civil rights litigation

Attorney Jennifer Hulvat has an article at Corrections One ("Unprotectcted: Private prison personnel and civil liability," Nov. 25) explaining why private prison companies and staff do not enjoy the same qualified immunity from civil rights lawsuits as publicly owned and operated prison units.

Historically, Title 42 U.S.C. §1983 has provided a procedural mechanism for state and local prison inmates claiming violations of their civil rights to sue those acting “under color of law”. Qualified immunity, however, bars §1983 suits against certain state, local and federal officials unless the actor reasonably believes that his conduct violates a clearly established constitutional right. Certainly, claims suggesting deprivation of rights rooted in the Fourth Amendment, the Eighth Amendment and the 14th Amendment are ripe in the prison context. ...

We need only look as far as the most recent Supreme Court opinion on the matter to quickly conclude that prison guards in private prisons are, for all practical purposes, exposed and vulnerable to liability for civil rights violations. The 1997 Supreme Court case of Richardson v. McKnight established that prison guards working for a private prison company that contracted with the state could not assert the defense of qualified immunity against civil rights allegations. There, two inmates in a privatized Tennessee prison alleged that prison guards subjected them to severe physical restraints, thereby depriving them a constitutionally protected right. The Court believed that “history does not reveal a ‘firmly rooted’ tradition of immunity applicable to privately employed prison guards”. Most notably, the Court found no reason to extend this critical protection to private contracted prison guards. The key factor in the Courts decision was that the person being accused of the constitutional deprivation was not hired directly by the government, rather “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for the profit and potentially in competition with other firms”.

Hulvat clearly believes qualified immunity should extend to government contractors including private prisons and their employees, but that's a slippery slope she's suggesting the courts head down. The Geo Group is to TDCJ as the mercenary firm Blackwater was to the US Marines. There are good reasons why Blackwater retained liability when performing its functions and you couldn't set the precedent for one sort of entity without extending it to others. The government contracts for all sorts of services with the private sector: Should rental car firms enjoy qualified immunity because the government sometimes rents cars from them? Where would it end?

In any event, Ms. Hurvat's complaint won't be satisfied anytime soon. She noted that a Supreme Court case in 2012 finding qualified immunity for an attorney hired to perform a police Internal Affairs investigation "was very careful not to overrule Richardson, finding that the employment relationship of a privately retained 'one' is quite different than the position and relationship of 'many' working for the entity hired by the government. For the time being, then, private prison guards facing civil rights allegations remain exposed and susceptible to liability."

Strip away that liability and abuses would surely rack up. Already, private facilities tend to be less accountable and more prone to abuse than publicly operated ones (though both have their problems). In part that's due to underpaid, under-trained staff, high turnover, fewer services and a tendency to cut corners to maximize their bottom line. How much worse would those problems be if private facilities weren't accountable in court for abuses? In that vein, via Texas Prison Bidness, this morning I noticed this new report (pdf) from the Detention Watch Network about alleged civil rights violations at private immigration detention facilities, including in Polk County, TX. 

 Government agencies are accountable to legislatures or other elected entities who can and do intervene - as happened at the Texas Youth Commission, for example - when serious problems arise. But private companies are only accountable to their board and shareholders. In Grits' view, SCOTUS was wise not to extend them immunity.

Brownsville can't keep 911 dispatchers on board

Brownsville PD is having trouble finding dispatchers who'll stay past their training period, reported a local TV station:

"We have a difficult time finding people who can fill those slots and can make a commitment to stay with it," Brownsville Police Chief Orlando Rodriguez said.

Starting next year, all dispatchers will have to be licensed by the Texas Commission on Law Enforcement Officer Standards and Education. They must first go through a 20-hour observation period to see if they want to apply for the job. Officials said about 80 percent decide it's not the job for them after that part of the process.

Before they are hired, they must pass a background check and go through a psychological examination. They must attend 64 hours of training. Usually, they work for six to eight months before they start working as a dispatcher alone without a trainer.

One recalls the Legislature raided "dedicated" 911 fees the last couple of sessions to help balance the budget. I don't know whether or not that has anything to do with the shortage in Brownsville.

Good idea in Dallas on domestic violence prevention, but few resources to implement it

Here's an interesting, proactive approach to family violence being pursued in Dallas, following the lead of a successful, similar program in New York City: Home visits following up on high-risk domestic violence episodes. Reported the Dallas News ("Dallas police consider home visits to prevent domestic violence deaths," Nov. 23):

Right now, many domestic abuse victims don’t hear from police beyond the initial response to a 911 call. Victims of felony offenses receive a follow-up with an investigating detective, but even then, police involvement ends once the case is handed over to the district attorney’s office.

[Maj. Robert] Sherwin said he wants home visits to fill the gap during the eight to 10 months it can take for the case to reach a result in court.

The plan is already working well in New York City, where police respond to about 250,000 family violence incidents a year. Dallas police respond to about 13,000 domestic abuse incidents annually.

To deal with its large caseload, NYPD assigns about 450 officers to conduct home visits with the most vulnerable victims: children, elderly and people police suspect will be abused again. They go on a “high propensity” list and must be visited at least once a month, said Chief Kathleen O’Reilly, who oversees the domestic violence unit.

On their visit to New York, the Dallas officers joined their NYPD colleagues on a visit to a Harlem public housing complex, where they navigated dark, narrow hallways and knocked on doors. The officers chatted with victims, looked for signs of further abuse and helped create a safety plan — putting Social Security numbers, credit card information and other necessities in one place in case the victim needs to leave in a hurry.

Though the program has existed for years, O’Reilly said, her unit re-emphasized the visits after the city saw a spike in domestic violence murders a few years ago. Now, family violence homicides have fallen and, O’Reilly added, “We don’t know how many lives we’ve saved just by showing up.”

Problem is, Dallas wants to implement the program without assigning extra resources.

the biggest challenge is deciding how to choose which victims to visit. Sherwin said police are considering using the lethality assessment program, criminal background checks on the abuser and knowledge of previous assaults on the victim.

The success of the program would likely hinge on such a filter system.

“That’s kind of the sticky wicket,” Sherwin said.

This is a good idea but it flies in the face of the current policing model where patrol officers rush from 911 call to 911 call without an overarching strategy. Thanks in part to more than 10% of police calls responding to false burglar alarms, there's little extra patrol power to assign to this sort of proactive approach. Make me philosopher king and I'd pull the plug on home-burglar alarm responses, implementing a verified response system and using the extra manpower for more of these sorts of targeted, risk-based policing tactics. But it's become clear that, certainly in Dallas, verified response is "good public policy" but "bad politics," as former Dallas police chief David Kunkle has said.

You can't get something for nothing in this world and that includes extra police resources, even if it's to implement a good idea. Policing, like every other government function, involves trade-offs. Not everything can get done in a world of limited resources. I'd rather see officers following up on high-risk domestic violence cases than chasing after thousands of false burglar alarms, but between the public's ignorance and the alarm industry's political clout, in the near term the trade-off will almost certainly continue to prioritize the latter over the former.

MORE: From Texas Monthly.

Lies and damn lies about sex trafficking data

Houston attorney Mark Bennett has an fine post up debunking a claim by the Dallas Morning News that, "In Hous­ton alone, about 300,000 sex traf­fick­ing cases are pros­e­cuted each year." The real number: Two, if you tally up state-level prosecutions; add in federal indictments and the number gets into the double digits. "So 300,000?," writes Bennett, "Utter and com­plete nonsense." Read the full post. MORE: The DMN has now updated its editorial to delete the false information; hope they also included a formal correction in the print version of the paper.

Harris DA 'simulator' primes grand juries to no-bill cops when they shoot unarmed civilians

The final installment of the Houston Chronicle's series on police shootings of civilians by James Pinkerton, titled "Bulletproof," (see parts one and two, and prior Grits coverage), revealed the use of an unusual "simulator" as part of grand jury trainings showing dramatic portrayals of justified police shootings. The DA employs a:

firearms training simulator as part of orientation that new grand jurors receive from the Harris County District Attorney’s Office. Grand jurors, whose duties include reviewing police shootings, play the role of police officer in the simulations by using a modified gun to shoot a beam at the screen.

The use of the shooting simulator, which was not widely known until a Houston Chronicle investigation, has prompted questions among defense attorneys and civil rights activists about whether it could prejudice grand juries. Harris County grand juries have cleared HPD officers in shootings 288 consecutive times. ...

The DA’s office, which began using the simulator in 2003, contends it helps grand jurors understand pressures of police work and the split-second decisions officers must make.

Only one other large Texas county - Bexar - shows grand jurors a similar presentation, according to the article. The use of the simulator to educate (indoctrinate?) grand jurors wasn't something even insiders in Harris County's criminal justice system were aware of, the paper reported:

Grand jurors empathizing with police officers is at the heart of questions raised about the shooting simulator.

Julian Ramirez, who is head of the DA’s civil rights unit, said the training simulator uses scenarios including school shootings, a domestic violence call, the scene of a sexual assault and traffic stops. Ramirez said the simulator gives grand jurors a better understanding of the “police officer’s experience when he goes on some of these calls.”

The DA’s office began inviting the news media and defense attorneys to use the simulator after the Chronicle began asking about the practice. The device’s use was not previously known by some local defense attorneys.

“Damn, I’ve never heard of that,” said Danny Easterling, who has spent 32 years as a defense attorney and is a past president of the Harris County Criminal Lawyers Association. “That does raise concerns … the neutrality of it could be questioned. It seems to be a bias towards the police.”

Harris County criminal district judges David Mendoza, Jan Krocker and Katherine Cabaniss said they also were not aware of the simulator’s use.

“I’m surprised. I’ve never heard of that occurring or that procedure,” said Mendoza, judge for the 178th court.

Though "Harris County District Attorney Devon Anderson said the simulations educate jurors about situations when self-defense claims are legitimate — not just for police officers but for all residents," it sounds like the only justified shootings shown in the simulations involve someone with a badge pulling the trigger.

Certainly the use of the simulator isn't the only reason Houston cops are unlikely to be indicted by grand juries. "University of Houston assistant professor of criminal justice Larry Karson conducted a 2004 study that found more than half of the 129 grand jury commissioners selected in Harris County in a two-year span had close ties to the legal system. They included judges, attorneys, court employees, bail bond agents, probation officers and law enforcement officers." So many grand jurors are people predisposed toward siding with police officers, anyway.

And, of course, grand juries can only base their decisions on the information given to them by the same District Attorney's Office that's showing them the simulator video. There's no one else representing the victim's interests in the room and because transcripts are secret, no one can ever know what the ADA said to them or what information may have been omitted in the presentation.

No doubt, in many cases a no-bill was justified. But even a conservative Republican judge questioned Harris County grand juries' lack of action on questionable Houston PD shootings. “The big void on indictments of police officers is certainly alarming, and I just hope each grand jury had decided those cases based on the facts independently of what the district attorney wants them to do,' said 209th District Judge Mike McSpadden.” Remarkably, "The newspaper’s investigation showed that more than a quarter of the 121 civilians Houston Police Department officers have shot in the last five years were unarmed."

Fort Worth chief apologizes for use of off-duty officers at NHTSA roadblock

The Fort Worth Police Chief issued an apology on Thursday for allowing off-duty police officers to participate in a federal survey in which they stopped drivers to request DNA swabs, breathalyzer tests and blood samples, the Dallas News reported. Though the survey was ostensibly voluntary, the use of uniformed officers meant drivers were under the impression they had no choice but to pull over. Here's the text of the chief's statement, which included contact info for the federal agency that initiated the effort:

TO OUR CITIZENS:

The National Highway Traffic Safety Administration hired off-duty Fort Worth Police officers to assist with the Roadside Survey by providing traffic safety and security of cash used to pay survey participants. This survey was intended to be voluntary and was conducted by NHTSA personnel.

We are reviewing the approval process for this survey’s utilization of FWPD off-duty officers not only to ensure that our policies and procedures were followed, but also to ensure that any off-duty job is in the absolute best interest of our citizens.

We realize this survey caused many of our citizens frustration and we apologize for our participation.

“I agree with our citizens concerns and I apologize for our participation. Any future Federal survey of this nature, which jeopardizes the public’s trust, will not be approved for the use of Fort Worth police.”

Chief Jeffrey Halstead

*** Please express your concern with this survey to the media relations office with the USDOT NHTSA - Kathryn Henry 202-366-6918; kathryn.henry@dot.gov

Readers concerned about this tactic should contact the NHTSA to tell them to re-think their methods. 

RELATED: Fort Worth cops used roadblock to gather cheek swabs, blood draws for federal research project.

Citizen complaints rising vs. Austin PD

According to the Austin Police Monitor's latest six-month update (pdf):

In the first half of 2013, 674 people contacted the OPM with the intent of filing a complaint. As of this writing, it looks like calendar year 2013 will see more complaints than were received in 2012. If so, this will be the first time in three years, the OPM has seen an increase in the number of complaints.

In the first half of 2013, the very first mediation session between members of the APD and a member of the public occurred at the Dispute Resolution Center. 

See also their most recent 2012 annual report (pdf), which is much more detailed.

As a practical matter, there are very few complaints filed against Austin PD officers by citizens because the system is utterly opaque and perceived to be rigged, with few officers ever disciplined and virtually no information coming back to complainants about how or why their accusations are (almost inevitably) dismissed without any consequences for the officers. When people ask me whether they should file complaints with APD over alleged misconduct, Grits routinely tells them they're wasting their time. If it's a really big deal, file a lawsuit; if not, go on about your life. APD's complaint process will bring you little but frustration and aggravation, accomplishing nothing.

By contrast, internal complaints by police officers against their peers are much less numerous but taken much more seriously by department brass and are more likely to ultimately result in discipline. 

One good thing Police Monitor Margo Frasier has done is begin to publish police disciplinary records online. See here. In civil service cities like Austin, information about police discipline only becomes a public record if an officer is suspended for multiple days. In non-civil service departments - which include the overwhelming majority of Texas agencies - information about ALL complaints and disciplinary actions are public records, making those agencies much more accountable.

H/T: Austin Statesman.

Judge who berated jurors could have violated judicial canons

Texas Lawyer's John Council has a feature (Nov. 21) on the story (covered here on Grits) of a visiting judge in Tarrant County berating jurors for issuing a verdict with which he disagreed in a DWI case. The conclusion of the story suggests the judge may have even violated canons of judicial ethics:

There's a reason why judges are well advised to keep their thoughts about a jury's verdict to themselves, said George Gallagher, judge of the 396th District Court in Tarrant County.

"The Code of Judicial Conduct is the first thing, to start out with. And then you have, on top of that, the Texas ethics rules—the rules that lawyers and judges have to follow. And both of those codes emphasize that, whether you're a judge or a lawyer, you should take no action that can contaminate jurors," Gallagher said. 

Those same jurors may be called back for service years later, Gallagher noted, and it could become problematic if during voir dire they detail their prior bad experience with a judge. 

"And then you've got 45 other people that say, 'Yeah we agree with them,' " Gallagher says. 

Judges normally refrain from publicly disagreeing with jurors because of Canon 3 of the Code of Judicial Conduct, according to Lillian Hardwick, an Austin lawyer who consults on judicial ethics issues and is co-author of "The Handbook on Texas Lawyer and Judicial Ethics.'

She points to Canon 3 B (4), which requires that a judge "shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity ... " and Canon 3B (5) which requires that a judge "shall perform judicial duties without bias or prejudice."

Another reason judges usually refrain from publicly disagreeing with jurors is it may create recusal issues for the jurist later, Hardwick said.

Overcrowding at S. Texas detention center forces juvie offenders to sleep on floor

In Hidalgo County, the recently expanded juvenile detention facility is already full, mostly with misdemeanor offenders, primarily because of paperwork delays by the local PD and the inexplicable failure of Judge Jesse Contreras to show up for work and stay there long enough to move his cases, reported the McAllen Monitor (Nov. 16). "During the past three months, The Monitor observed Contreras routinely arrive late or delay hearings for hours without explanation. On Aug. 30, Contreras suddenly announced a brief recess, left the building and didn’t return for about two hours." Judge Contreras says the only solution is to build more jail space, but clearly there's a lot more that can be done on his end to move cases along. These are issues of process, not capacity.

San Antonio Four Roundup

Here are a few notable articles published in the wake of the release of the "San Antonio Four" that merit Grits readers' attention:

• S.A.4 release 'just the beginning,' lawyers say
• Freedom for 'San Antonio Four' overdue
• 'San Antonio 4' hope case inspires others
• 'San Antonio 4' speak out after prison release: 'We're actually innocent'
• 'San Antonio Four' case could factor into DA's race

See also a Tumblr account about the case featuring video clips and photos, and recent, related Grits posts.

Union rep: TDCJ focuses on pigs' comfort over staff, inmates

Though perhaps ill-timed in light of today's cold front, Lance Lowry, a correctional officer and the president of the Huntsville-based local of the American Federation of State, County and Municipal Employees, has a column in the New York Times today titled, "In Texas, inmates and officers swelter." Here are some highlights:

In August, right around the time when the Texas summer heat was at its brutal worst, the state’s prison system finalized a bid to replace its aging swine-production facilities with six new climate-controlled modular barns, at a cost of $750,000. 

The pigs raised for inmate consumption were going to get relief from the heat, but the state’s inmates would continue to suffer. In the last six years, at least 14 inmates died from heat stroke or hyperthermia in overheated Texas prisons, where air-conditioning is scarce and temperatures can reach 130 degrees. 

The correctional officers, whose working conditions are the same as the inmates’ living conditions, have taken note. Several inmates’ families have filed wrongful-death lawsuits, and the officers’ union supports them. We also support those officers who plan to take legal action against the state because of intolerable heat in their workplace. ...

The prison system also tries to save money on climate control. The Texas Commission on Jail Standards requires all county jails to keep the temperature below 85 degrees — not necessarily a comfortable temperature, but a humane one. Still, the county jails house only 70,000 inmates, fewer than half as many as the state prisons, which are exempt. Some prisons have had air-conditioning installed, but only in the hospital areas and the administrative offices.

The overheating in prisons is made even more dangerous by other cost-cutting measures. Employment screening for correctional officers is inadequate, and a physician’s examination isn’t required for applicants — even though they’ll be expected to work in a physically demanding job up to 12 hours a day, sometimes in heavy Kevlar vests, often in extreme heat. And just as the inmate population is aging, the officer population is getting older, too: with the economic downturn, we’ve seen retired officers returning to the job. I once worked with an officer who was 82 years old.

Like the older inmates, many of these older officers take medications that make them particularly sensitive to the heat, including antidepressants and diuretics to control high blood pressure.

Under the Americans With Disabilities Act, the prison system may be liable for not providing reasonable accommodations. More than 15 percent of the inmate population has been found to have a mental illness, and some of them refuse to take their psychotropic medications in the summer, because the drugs can make them heat intolerant, leading to assaults on other inmates and correctional officers.

Regular readers may recall that this blog broke the story of TDCJ's pigs getting air conditioning while prisoners and COs sweated through the summer. I'm pleased to see the meme continuing to spread.

Regulate data collection from license-plate readers

When the 84th Texas Legislature convenes in 2015, Grits hopes they will consider and pass restrictions on the use of license plate readers by law enforcement and the private sector. Stateline published a story this week including details about how other states are handling the new technology:

Privacy advocates don’t object to police using LPRs to catch criminals. But they are concerned about how long police keep the numbers if the plates don’t register an initial hit. In many places there are no limits, so police departments keep the pictures—tagged with the date, time, and location of the car—indefinitely.

The backlash against LPRs began in earnest this year, as three more states limited law enforcement use of the systems and in some cases banned private companies from using the systems, for example, to track down cars for repossession. So far, five states limit how the cameras are used, and the American Civil Liberties Union anticipates that at least six other states will debate limits in the upcoming legislative session.

In New Hampshire, police and private companies (with the exception of the tolling company EZ Pass) are forbidden from using license plate readers. Utah requires police to delete license plate data nine months after collection. In Vermont, the limit is 18 months and in Maine it is three weeks. Arkansas police have to throw out the plate numbers after 150 days and parking facilities are the only private companies allowed to use the technology.

See the full story for more background.