Monday, July 06, 2015

Rigged game in Waco

One of the few bright spots coming out of the Twin Peaks massacre in Waco is that Tommy Witherspoon of the Waco Tribune Herald, one of the top crime-beat reporters in the state, for Grits' money, is on the scene to cover it. (I just wish the inestimable Cindy Culp were around to tag-team with him.) Witherspoon reported in Friday's paper:
A hearing Thursday for a disabled Gatesville Army veteran who rides with the Cossacks Motorcycle Club included a strong challenge to the probable cause used to arrest 177 bikers in the wake of the May 17 Twin Peaks shootout.

Ronald Atterbury’s attorney, John H. Jackson, who also is a former state district judge from Corsicana, attacked the probable cause reported in Atterbury’s arrest warrant affidavit, which is identical to the others used to detain bikers en masse after the melee that left nine dead and 20 injured.
Officials used identical documents, labeled “cookie-cutter” by defense attorneys, changing only the names, to apply the same conduct to all those jailed.

Jackson was not successful in getting the charges dismissed, but convinced 54th State District Judge Matt Johnson to reduce Atterbury’s bond from $1 million to $40,000.

Jackson called Waco police Detective Manuel Chavez as a witness to describe how the affidavits were drafted. To obtain the arrest warrants, Chavez swore before a judge as to their content. He testified Thursday that the document was written by prosecutors in the McLennan County District Attorney’s Office on the day of the shootout.

Chavez admitted he didn’t know if Atterbury, 45, committed any of the offenses alleged in the affidavit and acknowledged that the affidavit does not accuse Atterbury specifically of any wrongdoing besides being a member of the Cossacks.

“Is membership in one of those organizations a crime?” Jackson asked. Chavez answered, “No.”
“You did not furnish any information to Judge (Pete) Peterson that my client committed any crime, did you?” Jackson asked.

Chavez said, “No, sir.”

Peterson, a justice of the peace, issued the arrest warrants and set $1 million bonds for each biker.
So, the cop who wrote the arrest warrant affidavit says he did not furnish any information to the Justice of the Peace charged with making the probable cause determination which indicated the defendant "committed any crime." Yet, District Judge Matt Johnson "ruled that probable cause was sufficient to support Atterbury’s arrest."

Talk about a rigged game!

Harris County suspends DNA testing in property crimes, citing volume

The Harris County crime lab (different from the city crime lab spun off from Houston PD) has suspended touch DNA testing because of volume, reported the Houston Chronicle (July 4).
the Harris County Institute of Forensic Sciences has sent out a memo to the 69 law enforcement agencies it serves suspending touch DNA analysis due to diminished resources and burgeoning demand.

Officials were forced to temporarily halt the service, ironically, because testing for touch DNA has been so successful.

"We didn't anticipate this remarkable growth and what law enforcement has done to embrace DNA testing services in general," said Dr. Roger Kahn, the forensic institute's crime laboratory director. "We need to reassess our service levels in order to keep up."

The suspension will not affect the Houston Police Department, which relies on the city's crime lab to perform DNA analysis. The Houston Forensic Science Center began performing DNA analysis in some property crime cases after the city cleared HPD's backlog of thousands of rape kits awaiting DNA testing.

But the county crime lab's suspension of the cutting-edge forensic testing, which it took the initiative to offer eight years ago, could impact property crime investigations for dozens of law enforcement agencies.
Here's a graphic from the Chronicle depicting the proportion of DNA testing at the lab attributed to touch DNA in property crimes vs. the total:


FWIW, the folks who "didn't anticipate this remarkable growth" clearly were not blog readers. Grits has been prophesying this conundrum for years, e.g.:
Texas and the larger jurisdictions like Harris County and Houston have invested heavily in new and expanded crime labs in recent years, and it's still not been remotely enough to handle the incoming volume, as evidenced by Harris County's decision to suspend DNA testing for property crimes.

Sunday, July 05, 2015

Addendum to good bills passed in 84th TX Legislature

Reacting to Grits' Greatest Hits compilation on criminal-justice reform from the 84th Texas Legislature, state Rep. James White, vice chair of the Corrections Committee, emailed yesterday to suggest I'd missed a few with which he was involved, particularly on the juvenile front:
  • SB 183: Penalizing civil rights violations and improper sexual conduct with persons in custody.
  • SB 409: Limiting dissemination of fingerprints from the juvenile system.
  • SB 1024: Clarifying the authority of the Windham School District to issue high school diplomas.
  • HB 431: Creating an advisory committee "to examine and recommend revisions to any state laws pertaining to juvenile records."
  • HB 1930: Requires local probation departments to have a written strategic plan.
He also said HB 2398, which I'd categorized as merely decriminalizing truancy, "could be described as an omnibus bill" including all the bills here, here, here, here, here, here, here, here, here, here, and here.

So there you go. Good clarification on the "omnibus" [read: Christmas tree] bill. And while none of the other bills would have displaced those on my own list based on level of import, it's definitely true that more good stuff (and more bad) happened this spring than this blog has portrayed. Thanks, Rep. White, for the update.

Saturday, July 04, 2015

Historical lament over habeas limits, partisan election of DAs

Grits was pleased to learn from the newsletter of the Texas Supreme Court Historical Society of the Texas Constitution History blog, a project of Justice Michael Massengale of the First Court of Appeals. Give it a look-see.

Browsing around, I found transcribed a letter from a minority report from a committee in the 1869 constitutional convention, the Reconstruction Convention, which lamented several recommendations not adopted by the convention which their committee had championed, including two which perked up your correspondent's attention: Habeas corpus powers for district judges and appointment instead of election for District Attorneys:
The undersigned would also recommend that special authority be conferred on district judges to grant writs of habeas corpus, as recommended in the majority report.

The minority of the committee agree also with the majority in recommending that the district attorneys shall be appointed by the Supreme Court and commissioned by the Governor.
Texas district judges had enjoyed habeas authority since the inception of the Republic, so this was a big change. Grits has discussed before how, historically, nearly all legislative interventions into habeas corpus reduce judicial power, and this was no exception. (That's part of what makes Texas' junk science writ so remarkable - there are few other examples which I can find of legislatures in any jurisdiction expanding habeas power instead of the courts.) Here we see in 1869 one of the more radical reductions in Texas judges' habeas power - removing it from the hands for the front-line ministers of the justice and reserving it for the bigshots in Austin.

For that matter, how different would the criminal justice system be today if District Attorneys were "appointed by the Supreme Court and commissioned by the Governor" instead of popularly elected on a partisan basis? We hear proposals in the modern era regarding appointment vs. election of judges, but appointment of DAs could augur even happier results. Perhaps having Texas DAs appointed by the Supreme Court is a suggestion which needs to be revived?

Friday, July 03, 2015

The Un-Exonerated

Fran and Dan Keller never molested any children at their Austin day care as part of a satanic cult, as Travis County prosecutors alleged at their trial. But they are unlikely to ever be declared innocent by the courts, reported Craig Malisow at the Houston Press. He encouraged people to read Keith Hampton's 14-page motion for rehearing (pdf) on the Kellers' innocence claim, which was denied. A gubernatorial pardon, presumably, remains their last option.

The San Antonio Four so far find themselves in a similar situation, as does Hannah Overton, Kerry Max Cook and too many others to name: Liberated, but un-exonerated.

A tale of two counties' jail populations

Here's an odd development: The Harris County Jail is so full they're having to ship inmates to contract beds in other counties, while the Dallas County Jail population has plummeted.
A DOJ statistician told the Morning News that "Texas’ entire jail population has been in decline since 2010," a trend upon which this blog has remarked for some time.

The causes of Harris County Jail overcrowding and the obvious solutions should by now be so familiar to Grits readers I shall not recite them here. The Morning News suggested five causes for the reduction in jail population in Dallas:
  • Fewer arrests: "So far this year, there have been fewer new arrivals than in 2013 and 2014."
  • More diversion programs, including one in which "Low-risk offenders who can’t post bail can pay a small fee and get out before their trial dates," i.e., personal bonds. 
  • New software lets "Cases ... be presented to grand juries faster, which shortens jail stays"
  • Quicker prep for TDCJ pickup: Everybody cites this but one seldom sees data to support the claim. 
  • Inclement weather: Understandably, upon reflection, crime goes down when it rains.
MORE: From Hair Balls and Kuff.

Wednesday, July 01, 2015

Criminal justice reform accomplishments from the 84th Texas Legislature

Grits had earlier suggested that the 84th Texas Legislature was characterized mainly by missed opportunities on criminal justice reform, and part of me still feels that way: I remain unhappy that they failed to do much to curb police abuses or rein in asset forfeiture. And except for adjusting property thresholds for inflation, they largely failed to address sentencing, allowing the corrections budget to balloon massively. The deaths of widely supported bills like ban-the-box, raise-the-age, and needle exchange were dispiriting. I also find the border buildup to be one of the most irresponsible boondoggles I've ever personally witnessed. Finally, when Greg Glod of the Texas Public Policy Foundation lauded this session's accomplishments, I found myself underwhelmed with the examples he cited. "Weak tea," I thought. (And I still don't quite understand how you'd look at this session and highlight those bills!)

Even so, now that the dust has settled following the veto period (and the Governor vetoed a couple of good criminal justice bills based on deeply flawed reasoning), Grits must admit that the big reform bills passed this session, taken together, constitute a pretty impressive array of criminal-justice policy accomplishments. They just weren't the things most people were focused on when the session began. To me, these are the highlights, in no particular order:
  • Adjust property thresholds for inflation. Passed as an amendment after a senate bill failed to get a House floor vote, this legislation will reduce incarceration for property crimes at the margins in a move Grits has advocated for years. The big budget impact will come from shifting state jail felony charges to the misdemeanor courts and reducing the proportion of theft cases charged as serious felonies based solely on the property valuation.
  • Diligent participation credits for state jail felonies. State jail felons can now earn sentence reductions through diligent participation in education, vocational, treatment, or work programs.
  • Eliminated the pick-a-pal grand jury system. A significant change, Grits remains a bit emotionally winded from the drama surrounding its passage. I'd considered this a lesser reform in a sense because we were literally the last state to do it; Texas wasn't leading the way on this one, we were bringing up the rear. But smarter folks than myself assure me this is no small thing. While there's more to do, with hindsight I'm starting to feel pretty good about this one.
  • Decriminalized truancy. Like grand jury reforms, this basically brought us in line with virtually all other states. But we're talking about diverting tens of thousands of juvenile cases out of the criminal justice system which is nothing to sneeze at. Between this and the state eliminating most Class C ticketing in schools last session (another John Whitmire bill), Texas has pretty quickly moved away from treating low-level juvenile behavior through the justice system.
  • Shifted juvenile incarceration from state youth prisons to regional detention centers. Somehow the estimates for how many kids would be shifted to counties under SB 1630 declined over session. At one point, press accounts had the final number at 200-300 kids in youth prisons post-reform; by the end of session the estimates were 700-800 kids remaining, down from 1,100. Either would be significant but, having not tracked the bill closely, Grits remains unsure whether it's the estimate that changed or the underlying policy.
  • Created innocence commission to study causes of false convictions. This is a well-timed project; Texas has passed all but one of the recommendations from the last such study panel.
  • Afforded habeas corpus relief to defendants falsely convicted based on junk science. Grits readers are sick of hearing about this one, but I'm still giddy the governor signed this thing.
  • Provided counsel for habeas corpus petitioners in agreed cases. In innocence cases or other situations where the state agrees a defendant is entitled to relief, judges must now appoint a lawyer. This will also provide a vehicle for representation of clients convicted of crimes which were later struck down as unconstitutional.
  • Expanded jurisdiction of the Office of Capital Writs to include forensic writs referred from the Forensic Science Commission. Likely few cases will be referred in the near term - they got no additional budget to go along with the new authority - but the cases they do get are likely to be important, with the potential to impact big swaths of the system.
  • Required licensure of forensic analysts by 2019. And with a license comes the ability of the state to revoke a license. This is a significant accountability reform.
  • Provided notice to defendants when courts schedule an execution. Hard to believe that wasn't required before, but there you go (see a discussion here).
  • Expanded access to post-conviction DNA testing: Every few years, the Court of Criminal Appeals says someone can't get testing done under Ch. 64 of the Code of Criminal Procedure and the Lege tells them they can. SB 487 was this year's version.
  • Reformed sex offender civil commitment program. Not a complete fix for the failing program, since it didn't address the lack of available housing, but a big, important bill.
  • Funding bodycams: The Lege approved a $10 million grant program for body cameras, though Grits is not so enamored of the rest of the bodycam legislation.
  • Reviving in-person visitation: The Lege insisted that jails cannot eliminate in-person visitation when they expand to include video visitation, but grandfathered a baker's dozen facilities that changed their policies before the state changed the law.
Taken as a whole, that's a non-trivial amount of reform legislation passing. It's just the trajectory didn't follow the path most observers anticipated (except, perhaps, for John Whitmire, who authored more than his share of bills that became law this go-round).

Yes, with the exception of the property threshold and diligent participation bills, the Lege failed to address Texas' fundamental over-reliance on mass incarceration. But neither would it be fair to disparage or poo poo how much was accomplished.

MORE: State Rep. James White offered an addendum to this list.

Tuesday, June 30, 2015

On forensic oversight, backlogs, and prospects for revenge-porn statute's constitutionality

As I head out of town again for a couple of days, here are a few items which merit Grits readers attention:
  • Anthony Graves' appointment to the Houston crime lab board has been making headlines. Perhaps just as significant, his attorney Nicole Casaraz who secured his exoneration will replace Scott Hochberg as the board chair. That's an unusual profile for a crime lab, particularly one whose management was recently made independent of the police department. Congrats to both of them!
  • The 5th Circuit Court of Appeals reinstated a lawsuit by two former Houston crime lab employees (from when it was run by the police department) who alleged that "Harris County prosecutors retaliated against them after they exposed problems with the city's breath-alcohol testing vans, or 'BAT vans.'"
  • In San Antonio, somehow I'd missed news this spring that hundreds of DWI blood tests were mishandled in a contracted lab and the new DA couldn't use the evidence in cases. Oops.
  • Dallas is beefing up staff in its sex crimes unit in anticipation of performing DNA testing on more than 4,000 backlogged DNA tests.
  • Texas' much-lauded revenge porn statute appears on a collision course with recent First Amendment jurisprudence, as Mark Bennett tried to explain to legislators during session. For my part, I wish the debate weren't as facile as it has become, where valid legal criticisms are dismissed as detritus and the Lege just passes laws which poll well but cannot withstand constitutional scrutiny. We've done this a bunch in Texas now, with online solicitation, improper photography ... now we appear poised to go through the same rigmarole on revenge porn. Grits has nothing good to say about anyone who would engage in this activity, but acknowledging the legal complexity of the situation does not condone the behavior. In fact, it's how serious people go about actually solving a problem. We'll see how the courts receive the new statute; I'm not sanguine it has much chance of withstanding scrutiny, good intentions and high-toned rhetoric notwithstanding.

Official planning to reduce pretrial detention

While attention nationally has been focused on creative solutions to pretrial detention at Rikers Island, a number of advocates I know have already been abuzz about this Texas news reported in the Houston Chronicle (June 28): "Earlier this month, Nathan Hecht, the Chief Justice of the Texas Supreme Court, announced the creation of a committee to study the issue for the Texas Judicial Council, the policy-making body for the state judiciary. Depending on the results, they may throw their support behind changes in the next legislative session."

Meanwhile, in Houston earlier this month, the McArthur Foundation "awarded Harris County a $150,000 planning grant, one of 20 doled out across the country to gather data and encourage stakeholders to put together a proposal that is due in January."

Your correspondent has focused on these questions since the earliest days of this blog, so I'm glad to see elected officials finally pushing for action at the Legislature and in Harris County, which are the two main places change must occur if reforms are going to stick.

Sunday, June 28, 2015

What next to reform grand juries now that pick-a-pal is no more?

With Texas eliminating its pick-a-pal grand jury system during the 84th legislative session and Alfred Brown walking off of death row a free man following revelations of grand jury misconduct, I asked Amanda Marzullo, Policy Director for the Texas Defender Service, to visit with me about the implications of Texas' new reform and what remains to be done. Listen to the interview below and find the full conversation transcribed below the jump.

Saturday, June 27, 2015

Bills focused on forensics, habeas, alter post-conviction landscape

Several pieces of legislation related to forensics and habeas corpus passed this session which collectively alter the landscape surrounding junk science and post-conviction writs.

Solidifying grounds for relief under Texas junk-science writ
Grits has described the importance HB 3724 by Herrero/Whitmire in defending the jurisdiction of the courts to provide habeas corpus relief to defendants whose convictions hinged on junk science, whether because the forensic field at the time got it wrong or because an individual scientist did. Its passage comes with a decision pending from the Court of Criminal Appeals in Ex Parte Robbins III, which is now (un)complicated by the passage of a statute codifying their ruling in Robbins II.

The upshot of HB 3724 is that Texas' junk-science writ will become a highly functional tool in the judicial arsenal to correct error in junk science cases, as opposed to a seldom-used one that ignores most erroneous expert testimony. As Judge Cheryl Johnson  pointed out in her concurrence in Robbins II, as a practical matter judges don't evaluate science but evidence, and in the case of forensics in particular, testimony. So HB 3724 ensured that judges could directly confront the most common source of false convictions based on forensics that the Texas Court of Criminal Appeals sees on a fairly regular basis.

This legislation in a way sets the framework for a couple of other important bills which have received less attention from this blog, mostly because their passage was less fraught with drama.

In defense of 'OCW Empire Expansion'
For starters, SB 1743 by Hinojosa/Herrero expanded the jurisdiction of the Office of Capital Writs to include forensics cases filed under the junk science writ being clarified in HB 3724 above. The agency's expanded mission comes with an expanded name; it will become the Office of Capital and Forensic Writs, empowered to accept (or refuse) cases referred to them by the Forensic Science Commission. A friend of mine who was critical of the move called this the "OCW Empire Expansion Bill," but Grits was more supportive. I want this to be somebody's job.

Unfortunately, it won't be Brad Levenson's job. The Court of Criminal Appeals relieved the OCW chief of his position recently (a fact which seemingly hasn't been reported anywhere, oddly). So there will soon be a new leader at that office whose job will include incorporating forensics cases into the already over-subscribed attorney staff's caseload.

This scenario also imposes a new responsibility on the Forensic Science Commission, which must choose which cases to formally refer. Eligible cases include those accepted through their regular reporting system, as well as allegations of professional negligence or professional misconduct that the commission has taken up of its own accord.

The (legitimate) fear would be that, because no additional budget appropriation was included for the agency to fulfill this new function, the Office of Capital and Forensic Writs could be swamped if, for example, the FSC referred something as large as the Jonathan Salvador debacle to them for representation, an instance where hundreds of defendants are likely eligible for relief. (In that case, the grounds would be Brady, probably not the junk science writ, so perhaps it wouldn't be referred in any event; I mention it because it shows how the scope of forensic error can mushroom as one analyst may handle many cases.) Since the agency's caseloads are already considered by some to be too high, the fear was the expanded mission could harm capital representation.

Regardless, as a practical matter, either the FSC must limit what it sends the OCFW or the latter group must be particularly discriminating regarding what it accepts, certainly until its budget issues can be resolved. One suggestion has been for the Texas Indigent Defense Commission to use some of its newly appropriated general revenue money - even a couple hundred thousand dollars would help - to facilitate the OCFW's transition to its expanded role. Or perhaps the Governor's Criminal Justice Division could identify grant money to support the new mission. For now, that's all speculation. But the agency will need additional resources from somewhere if it's going to take on any significant number of these new sorts of cases.

Expanding habeas representation in agreed cases
Another modest bill to provide habeas representation to indigent defendants, SB 662 by Rodriguez/Alonzo, will now guarantee a lawyer be appointed in cases where the state agrees habeas relief is merited. In particular, judges would have to appoint a lawyer, "If at any time the state represents to the convicting court that an eligible indigent defendant ... who was sentenced or had a sentence suspended is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court."

This will have implications not only in some potential innocence cases, but also instances like the First Amendment cases Mark Bennett has worked on where people are convicted of an unconstitutional statute and become eligible for relief when the courts overturn it. This was among the legislative recommendations from the Texas Indigent Defense Commission.

Licensure coming for forensic analysts 
Finally, unrelated to habeas corpus but an important piece of the puzzle when it comes to forensics: SB 1287 by Hinojosa/Geren  requires the Forensic Science Commission to begin licensing all forensic analysts not already required to achieve accreditation by Jan. 1, 2019. They'll begin drafting rules much sooner than that: The whole process represents a significant expansion of the commission's role.

The bill defines a forensic analyst as anyone who "reviews or performs a forensic analysis or draws conclusions from or interprets a forensic analysis for a court or crime laboratory" and requires than all such individuals be licensed by 2019 if they're not already accredited by an established body recognized by the state of Texas.

This change puts Texas at the cutting edge of the move toward professionalization in forensics fields which have avoided close scrutiny before now. The rule making process will be interesting to watch. What a big job!

* * *

So the grounds for relief under the state's new junk science writ have been clarified once and for all, unaccredited forensic analysts will soon be licensed, and the chances people may receive representation on meritorious habeas writs have improved at the margins. These are significant steps, taken together. They'll likely affect a relatively small number of cases, but these bills collectively give courts and agencies new tools to confront these bleeding-edge issues facing the justice system surrounding junk science and post-conviction relief for false convictions.

Thursday, June 25, 2015

Widespread police testilying alleged: Tarrant DA responds by eliminating method of documenting it

When a prosecutor hears a police officer lie on the stand, should there be a process by which they document it, or should they just keep using that cop over and over as a witness in the future?

That's the core issue raised with the recent release of prosecutor assessments of alleged police officer testilying in Tarrant County DWI cases. In a story titled "Officers accused of lying, "winging it" by Tarrant County prosecutors, documents show" (6/20):
[Tarrant County District Attorney Sharon] Wilson said that though she could not confirm the allegations, she believed that handwritten notes on 19 of the forms potentially rose to the level of being Brady material — information that under the law must be turned over to the defense. Accordingly, her office as sent out some 4,000 Brady notices to defense attorneys who had cases in which the officer was in any way involved.

The 16 officers and three Breathalyzer operators whose credibility was questioned in the forms were unfairly maligned, were never given a chance to defend themselves and their agencies were never alerted, according to both a police union leader and an attorney for two of the officers. ...

Two Fort Worth officers and a former civilian breath test operator with the department were among those accused of lying, many times in testimony, during misdemeanor trials dating to 1993.

Nine other law enforcement agencies also received notice from the DA’s office that a former or current employee’s credibility had been questioned by prosecutors, including an Arlington sergeant who now serves in a high-ranking position.
Rather than formalize the assessment process, though, or assigning a supervisor to monitor content, the DA will simply cease having prosecutors fill out the forms. Seems like the wrong message.

The misdemeanor chief who authorized the memos, Richard Alpert, who is an appointee to the statewide Texas Forensic Science Commission, was demoted over the episode - for either not monitoring the contents of the memos (the stated reason) or for recording such opinions in the first place (a reasonable subtext) - and no longer manages other employees.

Grits continues to believe that access to documents about law enforcement misconduct for impeachment purposes will be the next big hurdle to full implementation of the Michael Morton Act and open-file discovery in Texas. Usually when I've said that I'm talking about police department disciplinary files, particularly in civil service cities. But this event reminds us that front-line prosecutors often are privy to testilying when it happens.

Shouldn't there be a requirement that they record it when they see it instead of eliminating the mechanism by which the DA's office discovered the problem? And now that the forms are gone, are prosecutors relieved of an obligation to disclose that knowledge just because they didn't write it down?

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article25066810.html#storylink=cpy

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article25066810.html#storylink=cpy ...


Wednesday, June 24, 2015

Fort Bend DA accused of Brady-related misconduct by state bar, and other stories

Grits has just returned from a whirlwind 2,000 mile car trip; here are a few items which appeared while I was gone that merit readers' attention:
  • KHOU reports that Fort Bend District Attorney John Healey and chief prosecutor Mark Hannah have been accused of Brady violations by the State Bar Commission for Lawyer Discipline stemming from one of the cases in the Jonathan Salvador fiasco. The prosecutors allowed evidence to be destroyed that could have been exculpatory and failed to notify the defendant in question about crime lab problems which would have supported habeas corpus relief. Lisa Falkenberg wrote about Healey's recalcitrance last year. There are many hundreds of similarly situated cases and more DAs than this one who didn't adequately notify defendants.
  • The Tarrant County DA issued thousands of Brady notices related to DWI blood tests performed at Integrated Forensic Laboratories and an analyst who switched samples in the lab. According to attorney Deandra Grant, "Apparently the new story is that Elizabeth Feller’s name may be on countless lab reports but she did not perform the actual analysis. Or maybe she did.  No one but IFL knows." See coverage from the Fort Worth Star-Telegram.
  • A South Texas police chief accused of stealing money from the feds has been found dead, a suspected suicide.
  • The number of defendants on death row is declining, but not because of more executions, which have also gone down, reported the Texas Tribune. Instead, there are fewer new death sentences on the front end, and no new death sentences so far in 2015.
  • The Court of Criminal Appeals turned down Fran and Dan Keller's petition to be declared actually innocent. Last month they overturned the conviction but not on actual innocence grounds.
  • Here's a local story on how Amarillo officials are wondering how they'll combat truancy now that it's decriminalized. I'm sure they'll figure it out, lots of other states have. See a related editorial from the Dallas News.
  • It'll be fascinating to learn after everything shakes out how many of the 177 bikers arrested in the Twin Peaks massacre in Waco and saddled with million dollar bail turn out to be completely innocent. I bet it's a bunch of them. I'm also curious to learn how many of the 9 dead were shot by law enforcement. Those data haven't been released yet.
  • Pam Colloff knows something Murray Newman doesn't: You can't argue with stupid. Read as Murray valiantly tries to edumucate a self-styled right wing journalist on the Anthony Graves case via Twitter. Really quite out there for anyone who knows the story.
  • Speaking of Anthony Graves, Grits was notified today via press release that the exoneree and former death row resident was named to the board of the Houston Forensic Science Center, recently spun off as an independent agency from Houston PD. Congratulations, Anthony!
  • See coverage of a Fourth Amendment victory at the Supreme Court.
  • I'm late to the party - comments closed May 15 - but check out draft regulations issued this spring from the National Commission on Forensic Science on a variety of important forensic-related issues. 

Saturday, June 20, 2015

Abbott signs bill codifying broad reading of Texas junk science writ

I'm out of town and won't have time to focus on recent veto announcements until later, but I couldn't resist passing along the excellent news that Gov. Greg Abbott signed HB 3724 codifying the Court of Criminal Appeals' decision in Ex Parte Robbins, holding that Texas' new junk science writ applies both to bad science and bad scientists.

This now moots the Court of Criminal Appeals' consideration of a motion for rehearing on the case. The new legislation ensures that the ruling from last fall in Robbins, or something essentially similar interpreting the new language, will ultimately prevail. (One imagines Judges Michael Keasler and Larry Meyers had conniption fits upon hearing the news.)

At one point, the bill sponsors were being told the governor's staff recommended a veto on the bill, so this ends a tense period that actually cost your correspondent considerable sleep in the last three weeks. It'd be interesting to know the backstory as to how that recommendation was overruled, but at this point that's trivia. The bill is law. The whys no longer matter. They got it right in the end.

Many thanks to Chairmen Abel Herrero and John Whitmire for their diligent leadership on this. And special thanks should also go to staffers Amanda Woog and Terra Tucker, and to Amanda Marzullo from the Texas Defender Service, who worked as hard as anyone to pass the bill. I'm surely forgetting others -  many people lent a hand when they were asked and I won't name them all here - but Grits is immensely grateful to everybody who helped out.

For me, this completes a process begun seven years ago when the original statute was first conceived, and it's been a remarkable roller coaster ride since then. Going forward, the statute will allow defendants to challenge false convictions whenever they relied on either bad science or a bad scientist at trial. And given the revelations in recent years regarding high error rates and a lack of scientific grounding regarding numerous forensic fields, the implications of the legislation may become even more significant over time than they seem today.

What terrific news! Congratulations and many thanks to everyone who helped make this possible, including to Gov. Abbott for signing the thing.

Friday, June 19, 2015

Ex-parole commissioner rejects probation on document tampering charges; trial late this year or next

A friend of the blog spoke to the prosecutor in the document tampering case against former parole commissioner Pam Freeman and informs Grits that, "Freeman turned down probation, so at this point, she wants her day in court. Trial will not be until late this year or early next year."

So there you have it. I wanted to update this recent post mentioning her scheduled day in court. More delay is the bottom line.

Thursday, June 18, 2015

Abbott tells drug users: 'Drop dead,' and other stories

Here are a few items that merit Grits readers attention while your correspondent makes his way out of town for a few days. Blogging will be light until I return, but in the meantime check out these stories:

Staff sex with prisoners seldom leads to jail time
The Marshall  Project published an extensive feature on the infrequency with which Texas prison guards who coerce sex from inmates are punished with criminal convictions and jail time.

Abbott to drug users: Drop dead, literally
The Houston Chronicle published an editorial lashing Gov. Abbott for vetoing Texas' Good Samaritan statute, HB 225, quoting the House-side bill author disputing Abbott's claim that he offered amendments to the bill. In fact, the governor's office offered amendments at the eleventh hour in the senate only, after the bill had already overwhelmingly passed the House. The rejected changes were not legitimate concerns but poison pill suggestions that would have made the bill worse than current law. As the Dallas Observer put it, Abbott appears to think "better that five junkies die of overdoses than 10 overdose and live."

A 'banner session' on criminal justice?
Greg Glod from the Texas Public Policy Foundation authored a column declaring the 84th Texas legislature to be a banner session on criminal justice. I can understand that argument, though Grits had earlier offered a less sanguine assessment. The things they accomplished were worthy, but much more was left on the table.

Wednesday, June 17, 2015

Public safety unions revealed as 'weak,' 'ugly' in SA mayor's race

Among the big losers in the San Antonio mayor's race won by Ivy Taylor: Police and firefighter unions, who backed Democrat Leticia Van de Putte with over-the-top attack ads aimed at her opponent. From the SA Express-News:
Public Safety Associations: The San Antonio Police Officers Association and the San Antonio Professional Firefighters Association spent unseemly gobs of money supporting former state Sen. Leticia Van de Putte and attacking Taylor. With contract negotiations in the balance, the associations had a lot on the line this election. And that was part of the problem: Their support of Van de Putte only made it look like she would have carried their water. Plus, their ugly attacks on Taylor only generated sympathy. And to top it off, they couldn’t deliver the few thousand votes needed to turn the election to their favor, which makes them look weak. Now, oh joy, they get to negotiate with ... Taylor. Loser.

Tuesday, June 16, 2015

National exoneration trends: Harris County leads nation in false drug-crime convictions

Find below the jump an update from the National Registry of Exonerations summarizing trends among false conviction data. Notably, Harris County is driving national data on drug-crime exonerations.

Monday, June 15, 2015

And the new Innocence Project of Texas ED is ...

Your correspondent today begins a new gig as Executive Director of the Innocence Project of Texas (IPOT) following a significant bout of staff turnover in the last few months. Pam Colloff of Texas Monthly broke the news this morning.

The group's office will soon be moving to Austin from Lubbock and with any luck there'll be several additional, exciting announcements in the near future about new directions the group will be taking. As regular readers may imagine, I have lots of ideas.

I worked for IPOT as their policy director from 2008 until last year, when they were forced to scale back staffing due to a budget crunch. So this is a bit of a homecoming for me. I know the group well and have a pretty good sense of the job. And it presents an exciting opportunity at an historical moment when the state is about to (re)study the causes of false convictions and recommend solutions through a formal innocence commission.

I appreciate the board giving me the opportunity and also support from outgoing legal counsel Jeff Blackburn, my long-time friend, who has assured me there are no hard feelings. (He left unhappy, but his beef was never with me.) And thanks in advance to Nick Vilbas, who I'm replacing as executive director, for all the help I'm going to need in the next couple of weeks transitioning to the job.

This oughtta be fun.

MORE: From the Houston Chronicle.

Sunday, June 14, 2015

Alone Time: Solitary confinement roundup

Here are a few items related to solitary confinement that merit Grits readers' attention:
  • Anthony Graves published a column in Time magazine describing his time in solitary confinement, and spoke to the issue of releasing people directly from solitary to the free world: "Freeing an inmate from solitary can be risky. You’re taking someone who has had no hope, no tools to succeed in this world, and you’re putting them back in society and asking them to do the right thing. Sometimes they’re so angry and hopeless that they commit another crime just to go back in."
  • Albert Woodfox, one of the Angola 3 in Louisiana, was released unconditionally after an astonishing 43 years in solitary confinement. See background here and here.
  • Here's a story of a 19th century serial killer who spent a "half century" in solitary confinement.
  • A federal lawsuit in Virginia is challenging whether death row inmates must automatically be assigned to solitary confinement. In the early stages, but this would be a big deal if it makes.
  • See recent reports on solitary confinement from the Vera Institute and the ACLU of Texas.

Saturday, June 13, 2015

Joyce Ann Brown, R.I.P.

I'm informed that Joyce Ann Brown, one of Texas' earliest and most vocal exonerees whose case received national attention, has passed away. Grits is sorry to hear that, she was an iconoclast and an impassioned and outspoken advocate for justice. She and I sometimes disagreed on priorities or strategic approaches, but I respected her.

See here and here for background on Joyce Ann's false conviction and pre-DNA exoneration in 1990, spearheaded by the intrepid Centurion Ministries.

For many years, a lot of folks treated Brown's case as an outlier. After dozens of Texas DNA exonerations re-framed the debate around innocence, however, it's clear in hindsight her story was more prototype than aberration. She was a brave, passionate fighter and I'm proud to have known her.

See below a picture of Joyce Ann with Elizabeth Ramirez of the San Antonio Four in April at a screening of a documentary on that case in Dallas.

Photo via Mike Ware
MORE: From the Dallas News, and an editorial praising Brown and other exonerees who have fought for improvements in the system. AND MORE: Here's an extensive obituary/remembrance at the New York Times.

Friday, June 12, 2015

Charles Sebesta disbarred!

BREAKING: Charles Sebesta, the prosecutor who withheld exculpatory evidence at Anthony Graves' capital murder trial, has been disbarred after a private trial vs. the state bar's disciplinary counsel, reported Pam Colloff on Twitter.

Here's a copy of the judgment. See related Grits coverage.

MORE: See Pam Colloff's initial coverage from Texas Monthly. See coverage from the Texas Tribune and the Houston Chronicle.

On the folly of releasing prisoners directly from solitary to the free world

Texas features prominently in the Marshall Project's Christie Thompson's investigative feature on state prisoners released directly from solitary confinement into the free world. Good stuff; give it a read. See also 2014 Texas data on length of stay in ad seg and the number of inmates released directly to the street (1,445), including those released with no parole supervision whatsoever (832).

Speaking of ad seg, this reminds me of another report, this one from ACLUTX on solitary confinement, that Grits never read because it came out after the 84th legislative session began. Here's the pdf version. Add it to the summer reading list.

Related Grits posts:

Thursday, June 11, 2015

On bail, plea bargains and innocence

Proponents of bail abolition this week found succor in several high-profile national media investigations into the topic, starting on Sunday night with HBO's John Oliver:
And of course, issues surrounding bail are at the center of the mess in Waco regarding the Twin Peaks biker shootout, where it appears likely that innocent people were indiscriminately rounded up and jailed on a $1 million bond. Recent Texas Tribune coverage began:
More than three weeks after Waco police arrested 177 bikers following a deadly shootout at a local restaurant, no charges have been filed in the killings, nearly half the bikers remain in jail on unusually high bonds, and more than a few legal experts — including former prosecutors — are starting to wonder what is going on in McLennan County.
Regular readers will recall that McLennan DA Abel Reyna's super-tough plea policies were already causing jail overcrowding and backed up court dockets in Waco. But this episode takes the cake.

The issues surrounding bail, pretrial detention, and underutilized pretrial services programs are long-time fodder for this blog, dating at least to this series focused on Harris County in 2005. I'm glad to see the subject finally receiving wide attention, and hope it keeps up.

Eliminating bail and replacing it with risk-assessment-based decision making and monitoring by pretrial services divisions would reduce jail overcrowding as well as enhance individual rights, since there would be far less disincentive to waive them in order to get out of jail quickly.

A lot of low-level, less serious innocence cases - where a defendant is actually innocent but pleas guilty because of the rotten cost-benefit analysis associated with going to trial - might be uncovered if we were to change the incentives around jail, bail, and plea bargains. Right now those instances are masked in part because defendants who can't make bail face an overwhelming incentive to plea bargain, whether they're innocent or not.