Accidents Will Happen

The title of this post is the headline to a story by Brandi Grissom at the Texas Tribune published today on the subject of errors in Texas Department of Public Safety accident reports. Here are some notable excerpts:

State troopers turned in hundreds of error-riddled accident reports in 2007 and 2008, according to an internal audit report compiled by the Texas Department of Public Safety last year.

In Hillsboro — the region with the most errors — more than two-thirds of the reports that officers filed in the first half of 2007 contained mistakes, according to the audit, which The Texas Tribune obtained through an open records request. Internal DPS auditors reviewed accident reports from troopers in 22 regions across the state. In 17 of those regions, auditors found that at least 30 percent of the accident reports that troopers submitted contained errors.

As official legal documents, there’s a lot riding on the accuracy of accident reports, which are used to help establish who was at fault in a wreck and whose insurance will shell out for damages and medical bills. Data in the reports also guides transportation policymakers’ decisions about how and where to spend millions of traffic safety dollars. ...

Major Casey Goetz of the DPS highway patrol division, who worked on some of the audits, says that many of the errors were simple, administrative mistakes. Significant errors that auditors found, he said, were corrected. Since the audit, DPS has improved trooper training, and the number of accident report errors has dropped significantly, he says. “We put some checks and balances in place to ensure that wouldn’t ever happen again,” Goetz says. ...

Goetz suggested a number of reason[s] for the high error rate. DPS, he says, hired a slew of new troopers who were inundated with new duties, including spending days at a time on border security assignments. And in some areas, he says, there were changes in local leadership that created gaps. “The troop, because of the work volume we all have, was pushing it through and saying, ‘If it’s wrong my sergeant will catch it,’” he says. “The sergeant was saying, ‘This is a good troop,’ and probably just initialing.”

As detailed in the chart below from the Tribune, error rates ranged by region from 38% to 63%, so even the "best" regions had large numbers of reports riddled with errors.

Levin on crime, costs and Texas justice

I've got a couple of Marc Levin's recent reports on my to-blog list from the Texas Public Policy Foundation's Center for Effective Justice, but in the meantime via email here's a compendium of much of his recent work on Texas crime and punishment policy:

• Texas Criminal Justice Reform: Lower Crime, Lower Cost - January 2010

By: Marc Levin

By continuing to build upon the recent initiatives that are successfully reducing both crime and incarceration rates, Texas can achieve further crime reductions and lower its corrections budget through the closure of unneeded adult and juvenile correctional facilities.

• Texas Counties Can Unlock Kids and Savings – December 2009

By: Marc Levin

Evidence from Texas cities and scholarly research increasingly indicates that communities can enhance public safety and reduce costs to taxpayers by providing alternatives that divert appropriate youths from detention, adjudication, and probation.

• Thinking Outside the Cell: Solutions for Public Safety, Victims, and Taxpayers – December 2009

By: Marc Levin

This presentation to lawmakers from across the nation highlights the growing evidence and public consensus supporting alternatives to incarceration that promote public safety, empower and restore victims, and reduce the burden on taxpayers.

• Texas Parole Reforms Lowered Crme, Costs - January 6, 2010

By: Marc Levin

This Dallas Morning News commentary discusses the substantial recent decline in crimes committed by Texas adult parolees and the policies strengthening supervision, treatment, and workforce participation of parolees that have contributed to these positive results for public safety and taxpayers. It also emphasizes the importance of building upon these reforms to continue breaking the cycle of crime.

CEJ Multimedia

• Audio of Panels on Corrections and Overcriminalization at 8^th Annual TPPF Policy Orientation for the Texas Legislature – January 14, 2010

The speakers on the corrections panel were Senate Dean & Criminal Justice Chairman John Whitmire, House Corrections Chairman Jim McReynolds, Pew Center on the States Public Safety Performance Project Director Adam Gelb, and Council of State Governments Justice Center Research Director Tony Fabelo.

The speakers on the overcriminalization panel were former U.S. Attorney General and Pennsylvania Governor Dick Thornburgh, State Representative Bill Callegari, Texas District and County Attorneys Association Governmental Relations Director Shannon Edmonds, and Cato Institute Criminal Justice Program Director Tim Lynch.

Both panels were moderated by Marc Levin. More than 700 Texas policymakers and stakeholders participated in the Policy Orientation.

You can view Mr. Gelb’s powerpoint and Rep. Callegari’s powerpoint.

• Video of Marc Levin’s Presentation to Meeting of the National Conference of State Legislatures (NCSL) Corrections and Fiscal Policy Leaders – December 9, 2009

Levin’s talk follows remarks by Dan Wilhelm, Vice President and Chief Program Officer of the Vera Institute of Justice. To see all materials from the NCSL program entitled “Budgeting for Corrections in an Era of Fiscal Restraint,” click here.

• Policy Primer: Keeping More Kids in the Community: Juvenile Justice Solutions in Texas – October 8, 2009

Audio

Video (courtesy of Time Warner Cable)

In the 81st session, Texas lawmakers used part of the savings from downsizing state youth lockups to direct $45.7 million to juvenile probation departments to enhance community-based alternatives. This TPPF luncheon program examined how departments can use these new funds to successfully reduce re-arrests and commitments to Texas Youth Commission institutions, as well as issues that should be considered in the upcoming sunset review of the state’s juvenile justice agencies. The panelists were:

* The Honorable Jerry Madden — Vice Chairman, Texas House Corrections Committee

* Michele Deitch — Adjunct Professor, LBJ School of Public Affairs

* Harvey Hetzel — Chief Juvenile Probation Officer, Harris County

* Vicki Spriggs — Executive Director, Texas Juvenile Probation Commission

Political debates on death penalty focused on innocence, not cost

Several recent death-penalty related items merit Grits readers' attention:

First, NPR's program Fresh Air yesterday aired a lengthy interview with Houston attorney David Dow, who has written a new, much-praised book titled Autobiography of an Execution, which has received wide critical praise.

Then last night, the death penalty came up as a source of disagreement in the Democratic Governor's candidate debate, reports the Dallas News:

The hourlong debate was calm, with few direct exchanges and plenty of agreement between the two candidates. But it laid bare a number of disagreements between the two that hadn't been seen before in a campaign that has seen most of the energy on the GOP side.

White opposed placing a moratorium on executions and on natural-gas drilling in urban North Texas' shale belt, while Shami said justice and public health require both.

Shami said he supports capital punishment, "if we are 110 percent certain" of guilt. But he said recent exonerations, many based on DNA testing, require a pause so that cases can be reviewed.

"We have killed lots of innocent people in the state of Texas," Shami said – a claim that hasn't been definitively proven.

White, though, said a moratorium on executions would be too broad. "That would disrespect the juries and the victims," he said.

White acknowledged the system has problems, but said it generally works pretty well. He said he rejects "one-size-fits-all" solutions in this and other parts of government.

Meanwhile, coverage of Sunday's Sarah Palin rally in Houston on behalf of Governor Rick Perry's reelection campaign revealed fault lines in one family over the GOP primary based on the Todd Willingham case. This anecdote caught my eye at the end of the story:

Judith Simon of Katy, who wore a pink "Palin Power" T-shirt, said she finds the former governor authentic. "When I listen to Sarah Palin, I hear truth and sincerity coming through her. When you're used to hearing the truth, you recognize the truth."

Simon also said she supports Perry. But her husband, James, a fellow Palin fan, said he would not back Perry because he believes Perry allowed the state to execute an innocent man.

He was referring to Cameron Todd Willingham, whom the state put to death in 2004 for starting a house fire that killed his wife and children. An arson expert found that the investigation that led to Willingham's conviction was deeply flawed.

Asked whom he would support in the primary, James Simon said, "How do I say this politely? None of your business."

His sentiments suggested that some may have turned out to support Palin more than Perry.

Of course, that's just one family, but it suggests that Sen. Kay Hutchison may have so far underplayed the Willingham arson case as a GOP primary wedge issue.

However, seldom do political debates over the death penalty reach what may be the biggest practical hurdle to wider use of capital punishment - that it simply costs taxpayers' too much to implement. According to a report last week from the Amarillo Globe-News:

More prosecutors are deciding not to seek the death penalty in cases where it's an option, two local district attorneys said after two cases in which pursuing the ultimate punishment was an option.

"That's been the trend for probably the last decade and probably will continue to be a trend," Randall County Criminal District Attorney James Farren said.

Many prosecutors weigh the lack of certainty in securing a conviction against the high cost of litigation as reasons for not seeking the death penalty when available.

In rural Gray County, reports the Globe News, the District Attorney "spent more than $750,000 - that was about 10 percent of Gray County's annual budget - to bring [a capital defendant] to trial. The cost of the trial was one reason county commissioners were forced to raise taxes and withhold employee raises last year." Another Panhandle DA observed that "many rural counties might bankrupt themselves if they try capital cases."

When Texas voters are asked by pollsters if they support the death penalty, they do so in overwhelming numbers. But I wonder if there isn't a somewhat more pedestrian question that might better gauge real-world support for capital punishment: Would you be willing to pay higher property taxes to implement the death penalty more often in your county? In Gray County that was an explicit choice faced by local prosecutors, who made a charging decision that's directly responsible for higher taxes and lower pay for county employees. I'd like to see that aspect of the issue discussed more by pols seeking our votes at all levels, but it's not how the debate is usually framed.

AZ court suppresses evidence from search of TX polygamist ranch

I said from the get-go that the search warrant used to get on the YFZ Ranch property in Eldorado back in 2008 was overbroad, based on lies, and that evidence derived from the Great Eldorado Polygamist Roundup should be suppressed in criminal court.

Now an Arizona judge has concluded the same thing after prosecutors there tried agreed not to introduce evidence against polygamist "prophet" Warren Jeffs discovered as a result of information seized during the raid. In Arizona, at least, such evidence will be discarded as fruit of the poisonous tree. The prosecutor may not use the information "directly or indirectly, in his case-in-chief, during cross-examination of any called defense witness, as rebuttal evidence, or for any purpose whatsoever."

San Angelo District Judge Barbara Walther, who approved the original warrant, has continued to stand by it. But I suspect Texas' Third Court of Appeals - which already benchslapped her once over the raid - may agree with the interpretation from Arizona. As Jeffs' attorneys argued to the AZ court, “An investigator of the level of Barney Fife would have recognized the call as a hoax if he had spent an hour or two of proper investigation.”

Index theft categories to inflation

In 1993, Texas set the current threshold for felony theft at $1,500 for a state jail felony - below that, theft receives misdemeanor charges that don't involve state prison time. The jump to the next offense category is quite significant - someone must steal more than $20,000 to be charged with a third degree felony.

However, adjusting for inflation, $1,500 in 1993 amounts to $2,208 in 2008 dollars. Indeed, "if you were to buy exactly the same products in 2008 and 1993, they would cost you $1500 and $1026.91 respectively." So over time, less serious thefts have come to be categorized as felonies that would have been misdemeanors at the time the law established the current threshold.

That's both unfair to defendants - who may receive different punishments for comparable offenses - and also results in an incremental boost in the incarceration rate over time as less serious thefts become felonies.

Why not index theft levels to to the Consumer Price Index and have it adjusted automatically every year instead of changing it every couple of decades when the Legislature gets around to it? That would make more sense both from an equal protection standpoint and from the perspective of fiscal austerity, limiting expensive incarceration in state prisons to thieves whose crimes would have fit the definition of felony theft at the time it was defined by the Legislature.

Odds and Ends

Here are a few recent tidbits that deserve Grits readers' attention:

Dallas constables' ongoing fiasco
At the Dallas News, Ed Timms and Kevin Krause have the story of a deputy constable with a checkered past accused of committing several felony crimes, including "unauthorized use of two motor vehicles, tampering with government records and coercing two women into performing sexual acts instead of arresting them on outstanding warrants." (UPDATE 2/8: See a followup story.) Meanwhile his blustering boss Jaime Cortes told his troops that he doesn't fear being indicted or eating jail food, just in case that might be an issue. Another deputy constable is back on the force after $70K in drug money was found in her bedroom. And Dallas DA Craig Watkins was criticized last week by the Dallas News for using secret grand jury testimony in a civil action aimed at thwarting investigation of constables. I've not closely followed the fiascoes surrounding Dallas constables, but these stories provide a taste.

False alarm costs too high
In Frisco, according to the Dallas News Crime Blog, "In 2009, the Frisco Police Department responded to 9,841 alarms and 99.6% of those were false alarms, city records show." The town will begin enforcing a new ordinance aiming at reducing false alarms on March 1. A better solution IMO would be requiring "verified response" by alarm companies before dispatching officers.

Public safety advice for Houston mayor
A real estate broker and a mechanical engineer recently offered up an interesting op ed suggesting how new Houston Mayor Annise Parker should reform the justice system.

Criminalizing auto accidents subjective
John Lomax at the Houston Press has an interesting article on the subjective nature of criminalizing auto accidents, to which Mark Bennett at Defending People reacted with a good discussion of the case at the center of the story and the cost-benefit analysis in which victims engage depending on who is footing the bill. Bennett also has some A+ quotes in the text of the story.

Business leaders for "right-sizing" prisons
The Pew Center on the States last month published a document called "Right-sizing prisons: Business leaders make the case for corrections reform."

Why is crime declining?
The Crime Report this week had a pair of stories analyzing causes of "The Great American Crime Drop." See parts one and two.

Since when are Americans afraid of trials?
Houston attorney Patrick McCann wonders "since when are Americans afraid of trials?" He argues: "We did not hold trials at the end of World War II for the Nazi leadership in order to punish the guilty; no punishment in the power of man would have been adequate for that. We held them so that there would be a record for all to see and for all to know, that these things actually happened, and so that the world would not forget. We do that now for Bosnia, and for Sierra Leone, and for East Timor, and we must do it for the crimes that those who support al-Qaida have committed. We must do that so no one will forget and so that the world will see what these men are."

DNA database expansion diverts focus from crimesolving
Julia Davis at the LA Homeland Security Examiner says the focus on expanding DNA databases - including for infants and petty criminal offenses - has diminished the tool's effectiveness at solving crimes and resulted in massive backlogs that delay and thwart justice.

'Shoefiti'
The LA Times suggests that shoes hung by their laces on utility wires are the "new graffiti"(though there's nothing really new about it). I tend to agree with the commenter who reacted: "Really? The shoes are the eyesore? What about the ugly canvas of wires they are hanging on? The shoes are the focus because, suddenly, people can no longer ignore the tangle of wires and optical cables that we allow to save the utilities the cost of burying them which they are required to do in more exclusive communities. It is the wires, not the shoes."

Border pork wrong priority for federal stimulus funds

I'm disappointed to learn of plans to spend federal "stimulus" money on Governor Perry's pet border-security pork program instead of on tactics that actually boost the economy.

Brandi Grissom at the Texas Tribune reports that the Department of Public Safety has outspent its budget - and was prepared to slash grant funds to Border Sheriffs, which are used to pay for equipment and overtime - but now they may plug the gap with federal stimulus funds, which is a tad ironic considering the Governor's criticisms of the policy. Reports Grissom:

The Texas Department of Public Safety is planning to use federal stimulus dollars that Gov. Rick Perry begrudgingly accepted from Washington to plug a hole in the border security budget.

The decision follows a mandate by Perry, Lt. Gov. David Dewhurst, and House Speaker Joe Straus that state agencies chop 5 percent out of their bottom lines to meet an anticipated state budget shortfall. For the Department of Public Safety, which is already struggling financially, the cut ordered last month will mean a $14.6 million hit, and border security funds could take the brunt. The agency is proposing to cut $10.3 million in border security grants to local law enforcement, according to an internal e-mail from DPS director Steve McCraw obtained by the Tribune. "I'm not happy that the efforts on the border might be reduced because of this, but that’s part of operating a state agency," says Texas Public Safety Commission Chairman Allan Polunsky. "Sometimes you have to make hard decisions that are going to be problematic somewhere."

That hole in border funds, though, could be plugged with $16 million in federal stimulus funds that Perry had already planned to dole out to local agencies for border security operations. Perry groused about taking the $15 billion in stimulus funds that Washington sent to Texas last year and said the money should only be spent on one-time expenditures. Since 2006, Texas has dedicated more than $200 million to border security operations. ...

DPS was already $27.5 million in the hole in January, according to McCraw’s e-mail to agency staff earlier this week. He said DPS has been using money from unfilled jobs to keep the agency running. With the mandatory cuts coming on top of the shortfall, the agency will slice funds from several programs, but the largest chunk will come from the $21.9 mllion set aside for grants to border law enforcement agencies over a two-year period. DPS has proposed cutting nearly half that amount. “This would reduce overtime to local law enforcement about 43%,” McCraw wrote. He added that Perry’s office planned to give local departments $16 million for border operations.

I've argued before that spending "stimulus" money on law enforcement grants is counterproductive, and that goes double when the state is paying overtime for local Sheriff's deputies, which should normally be paid for out of county coffers. There's no evidence overtime spending has contributed significantly to public safety, as Grissom reported back when she was with the El Paso Times.

In any event, "stimulus" money shouldn't be spent on pure enforcement because the economic multiplier effect is so low. A deputy may have more money in his pocket for overtime, but everyone they arrest then costs the system money in areas that aren't federally subsidized - county jails, local court dockets, state prisons, etc.. And when the end result of an arrest is incarceration, it takes a consumer out of circulation instead of enhancing their contribution to the economy. That may at times be a worthwhile public safety goal, but it's the opposite of stimulating economic growth.

If stimulus grants are going to be spent on criminal justice projects, they should be focused on things that promote instead of deter economic growth. That includes programs that supervise offenders (read: consumers) outside of prison and preferably keep them gainfully employed. Job training and reentry services would also fit the bill.

Bottom line: "stimulus" money should go to programs that encourage offenders to reconnect with the economy - to remain in the community, supervised, earning and spending money, even paying taxes - instead of sitting in prison or jail living 100% on the taxpayers' dime. Otherwise, such grants can produce more costs than benefits for the economy.

Correa: Preserve diversion funding, close prisons to cut TDCJ budget

Ana Yañez Correa of the Texas Criminal Justice Coalition has an op ed in the Austin Statesman today suggesting that budget cuts in corrections should come from closing inefficient prison units instead of cutting treatment and diversion programs. Here's how the column concludes:

Overcrowded prisons force higher-risk offenders out to make room for incoming low-level offenders suffering from addiction.

Cutting diversion funding is an irresponsible approach to budget difficulties that will only exacerbate these problems, with negative long-term public safety consequences and the potential for taxpayers to shoulder the additional burden of costly prison and jail construction.

On the other hand, investing Texas' corrections dollars in the probation system will satisfy fiscal and public safety needs. More Texas offenders enter the probation system than prison or jail, and the numbers are rising. Sustaining the state's probation revocation rate as one of the lowest in the country through graduated, diversion-based sanctions is key to keeping crime rates down and saving taxpayers millions in incarceration costs in coming years.

According to Marty Griffith, director of the Williamson County Community Supervision and Corrections Department, "Because of the work of CSCDs across Texas, we have prevented three new prisons from being constructed — and having to operate three new prisons is something the state obviously cannot afford to do. But we have also eliminated the need for prison construction without jeopardizing public safety."

Ultimately, cost-cutting should come in the form of prison closures, just as other states have done in response to impending budget crises. In Texas, the Hilltop, Huntsville and Sugarland's Central units are each more than 100 years old; technologically ill-equipped and outdated, they are seeing inflated prisoner costs-per-day.

Generating savings through the closure of these inefficient facilities — or dangerously under-staffed facilities — will allow for additional investments in the state's cost-efficient and public safety-focused diversion infrastructure without necessitating that new prisons replace closed facilities down the road.

Judge Number 96

The deadline for the examiner to file objections in removal proceeding against Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals was extended until February 17. From the Commission on Judicial Conduct's website, here are links to all documents filed with the commission in the case:

In re: Judge Sharon Keller (Judge No. 96)

• Notice of Formal Proceedings (file stamped) [pdf]
• Judge Keller Answer [pdf]
  Exhibits: A-B [1.07 MB pdf] | C-D [309 KB pdf] | E [2.18 MB pdf] | F-H [752 KB pdf] | I-K [372 KB pdf] | L-P [1.29 MB pdf]
• Agreed Request for Setting [pdf]
• Order Setting Hearing [pdf]
• Appointment of Special Master [pdf]
• First Amend Notice of Formal Proceedings [pdf]
• Agreed Scheduling Order [pdf]
• Respondent's Motion to Strike
• Examiner's Response to Motion to Strike
• Missing Pages to Response to MTS
• Respondent's Reply to Examiner's Response to Motion to Strike
• Respondent's Motion for Application of Proper Evidentiary Standard
• Response to Motion for Clear and Convincing Evidence Standard
• Respondent's Trial Brief
• Respondent's Objections to Examiner's Proposed Exhibits
• Respondent's Verified Answer to Amended Notice
• Special Master's Findings of Fact
• Order Extending Filing of Objections

Terri Hodge pleads guilty: Prisoner advocate to leave Lege in disgrace

Texas state Rep. Terri Hodge yesterday pled guilty "to failing to pay taxes on $74,000 in income, including more than $32,000 in bribes." She'd been accused of other serious charges to which she did not plead guilty, including accepting bribes from a developer and "peddling her influence to get inmates released on parole in exchange for money." Here are the lowlights from the Dallas News:

State Rep. Terri Hodge provided a dramatic twist to the FBI's public corruption investigation Wednesday by agreeing to resign from the Texas House after pleading guilty to failing to pay taxes on $74,000 in income, including more than $32,000 in bribes.

Hodge, D-Dallas, also admitted that she never paid taxes on another $41,000, some of which was money she pilfered from her own campaign war chest for personal expenses. Neither prosecutors nor Hodge offered details.

The 69-year-old legislator choked up several times during an early-morning hearing that was never publicly scheduled, apparently in an attempt to spare Hodge media attention.

Hodge, who did not comment as she left the courthouse, agreed to drop her re-election bid for an eighth term. But she will remain a House member until she is sentenced.

"I'm not real keen on that notion," U.S. District Judge Barbara Lynn said at the prospect of a felon remaining in office for any length of time. She said she would schedule a sentencing hearing soon, but it could still take weeks.

Hodge pleaded guilty to accepting money from prominent developers Brian and Cheryl Potashnik in the form of rent and utility payments. The Potashniks, both of whom have since pleaded guilty to bribery, let her live in one of their affordable housing complexes for reduced rent and also bought her about $2,000 worth of carpet.

As part of her deal plea deal, finalized late Tuesday, Hodge did not admit the bribery conspiracy, which alleges that she wrote letters to the state advocating that the Potashniks' company, Southwest Housing, receive lucrative tax credits to build low-income housing in her Dallas district in return for the bribes. Such support from public officials was crucial for developers getting the tax credits.

Hodge's district supported her two years ago even after these charges came to light, but now she must drop out of her primary race and will not be back in Austin (and might be in federal prison) in 2011. Last session she sat on the House Corrections and Criminal Jurisprudence Committees, putting her in the center (at least geographically, if not usually rhetorically) of many debates covered on Grits.

At the Lege, Terri Hodge was always a reliable vote for criminal-justice reform bills and a well-intentioned, passionate advocate - especially concerning prison conditions and parole policy. But she could be domineering and combative in a legislative environment that rewards comity and compromise. She wasn't someone who other legislators would typically follow, certainly not across party lines, and thus in the GOP-dominated era post-2002 she became marginalized at the Lege, even as some of her causes started to gain traction.

Though Hodge wasn't convicted of bribery, taking free rent from a developer whose projects she's pimping through the process is overtly corrupt. She disgraced herself and her office. Her loud protestations of innocence - by which she justified sticking around through the 81st legislative session even after she'd been indicted - turned out to be all lies. Terri Hodge leaves behind a legacy of ignominy and shame that casts a pall over the whole political process.

Adding fuel to any well-deserved populist outrage over Hodge's transgressions, the Texas Tribune is reporting that she will still be eligible to receive her state legislative pension of around $40K per year, which is more than a five-fold boost from her annual legislative salary. How's that for bitter irony?

Especially since she wasn't accomplishing much, anyway, it's surely best all around for District 100 to get a new rep, who by the way will be a fellow named Eric Johnson, her primary opponent. The south Dallas seat is a "safe" one for Democrats and there is no GOP candidate.

Saying "no" to John Bradley

At a January 11 meeting of the House Criminal Jurisprudence Committee, state Rep. Paula Piereson wryly asked one of the witnesses, arson expert Craig Beyler, whether anyone had tried to prevent him from testifying. Beyler declined to point any fingers, but as it turned out it was Williamson County DA and Forensic Science Commission Chairman John Bradley who tried to convince Beyler not to attend the hearing. Reports Gary Scharrer at the Houston Chron's Texas Politics blog:

In a Jan. 26 letter, Beyler told [Chairman Pete] Gallego: "Mr. Bradley.... asked me not to appear before your committee. He was apparently concerned about your motives in inviting me and was very concerned that you wished to do the Commission harm."

"I was not at all convinced by his concerns and decided to come to Austin. As it turns out, his fears were wholly without merit. I very much appreciated that the committee members did not ask questions about the pending TFSC work," Beyler wrote in the letter to Gallego.

Bradley, of course, maintains he was only concerned about harm that might befall Mr. Beyler's reputation if he said the wrong thing, but in context the move looks like a cheap bullying tactic.

FWIW, in the testimony Bradley tried to prevent, Mr. Beyler suggested that judges be allowed to retain their own independent experts to evaluate forensic science, the way that the court retains independent experts for psych evaluations at competency hearings that aren't beholden to either party. An interesting idea, but pretty noncontroversial stuff. Beyler was right to reject Mr. Bradley's order, demand, suggestion, advice, or whatever it was.

Speaking of people saying "No" to John Bradley, Rick Casey at the Chronicle has another column on last week's Texas Forensic Science Commission meeting in Harlingen, describing how commissioners rebuffed efforts by the chairman to create a General Counsel position that would eat up most of the budget with redundant legal services already provided by the Attorney General. (See the discussion from Grits' liveblog of the hearing.)

Viewed as a whole, it's hard to see the chairman's recent actions as anything more than obstructionist, aiming to delay or quash discussions of questionable forensics instead of facilitating them. I'm heartened that he's at least getting some pushback. The DA is not a fellow who's used to people telling him "no."

See Grits coverage of last week's FSC meeting:

• Bradley violated Open Meetings Act at forensic hearing
  
• Hectoring approach works for John Bradley at Forensic Science Commission, for now
• Forensic Science Commission meets today, but does it have rulemaking authority? Some say 'no'
• Forensic Science Commission meeting in Harlingen, but Willingham off the agenda
  

And coverage of the Jan. 11 House Criminal Jurisprudence Committee hearing:

• Texas should strengthen standards for admitting forensic evidence

Examiner's objections due soon in Sharon Keller removal proceedings

Now that Judge David Berchelmann has issued his findings of fact in Court of Criminal Appeals Presiding Judge Sharon Keller's removal proceedings before the Texas Commission on Judicial Conduct, what happens now? What should happen?

Some media outlets, egged on by Judge Keller's attorney, portrayed Judge Berechelmann's findings as essentially putting to rest allegations against Judge Keller. That was premature. The Judge was only empowered to make recommendations to the Commission, which may still decide whether to dismiss the charges, reprimand Judge Keller, or recommend her removal to the Texas Supreme Court.

So what happens next? According to the Commission's removal procedures (pdf), the Commission's examiner (the equivalent of the prosecutor in the case) may file objections to the Special Master's report within 15 days, which by my count would be Thursday, February 4 (though the examiner is also allowed to request an extension).

This will be a critical moment in the drama. If the examiner files objections to the Special Master's findings - and I can think of plenty! - the the SCJC will hold its own hearing. Otherwise:

If no statement of objections to the report of the special master is filed within the time provided, the findings of the special master may be deemed as agreed to, and the Commission may adopt them without a hearing. If a statement of objections is filed, or if the Commission in the absence of such statement proposes to modify or reject the findings of the special master, the Commission shall give the judge and the examiner an opportunity to be heard orally before the Commission, and written notice of the time and place of such hearing shall be sent to the judge at least ten days prior thereto.

The biggest, outstanding objection to the Special Master's report surely is his failure to mention damning evidence presented contradicting Judge Keller's claim that her conversation with the court clerk regarding the Michael Richards case was of an "administrative" nature. She'd claimed contrarily in federal court that they were judicial decisions (in order to claim she deserved "absolute immunity" for what happened). Apparently on this question Judge Keller tells whatever court she's in whatever they need to hear to let her off the hook, even if overall her statements contradict themselves.

That's pretty darn objectionable, in my book, and I hope the examiner's staff is busy preparing a a detailed response.

The examiner should also object to Judge Berchelmann's rhetorical chicanery in arguing that Judge Keller violated no "unwritten rules," distinguishing such from an "oral tradition" that the Special Master acknowledges she failed to follow.

In relation to the specific "charges" against the judge, a recurring theme was that Judge Keller's conduct was "willful or persistent." Certainly that much can't be argued! Even Judge Berchelmann found Judge Keller's impudent claim that she would do nothing differently implausible, saying her statement "cannot be true."

In any event, until we see the examiner's response - which should be filed by Thursday if he doesn't request an extension - we've only seen one of the two important documents that will be presented to the Commission if removal proceedings go forward.

If the examiner issues a response - which seems clearly warranted given the Special Master's overt omission of evidence - the Commission then would set a hearing date at some point, though it could order more evidence to be gathered or even hold a fact finding hearing itself (a "hearing for the taking of additional evidence").

By the end of the week, we'll know a lot more about where this case is going, when it might end, and how.

UPDATE: Chuck Lindell at the Austin Statesman reports that both the examiner and Judge Keller's attorney have been granted an extension until Feb. 17. That lets us know that the examiner will indeed file objections to the findings of fact, and that the Commission on Judicial Conduct will hold a public hearing to air the charges.

Study: Cell phone, texting bans don't reduce accidents

After all the hype and hoopla about "distracted driving" and the implementation of new bans using cell phones in school zones and on texting while driving, why am I not surpised to see this? Via AP:

A new insurance industry study has found that state laws banning the use of handheld devices to make calls or send text messages while driving haven't resulted in fewer vehicle crashes.

The study, released Friday by the Highway Loss Data Institute, examined insurance claims from crashes before and after such bans took effect in California, New York, Connecticut and Washington, D.C.

The organization found that claims rates didn't go down after the laws were enacted. It also found no change in patterns compared with nearby states without such bans.

Adrian Lund, the group's president, said the finding doesn't bode well "for any safety payoff from all the new laws."

Six states and the District of Columbia ban talking on a hand-held device for all drivers, while 19 states and the District of Columbia ban texting while driving, according to the Governors Highway Safety Association.

Austin's texting ban went into effect yesterday and the city has posted signs prohibiting cell phone use in school zones. Expect these measures to have a similar (i.e., zero) effect on safety.

There's a disconnect in the pro-ban arguments I've seen that IMO needs more vetting before these laws are ready for prime time. We're told repeatedly, including in the past by this same insurance industry think tank (which is one reason I consider this study notable), that "drivers were four times more likely to be in a crash while using cell phones." Often someone will add that this is the same risk that may be statistically attributed to a driver whose blood alcohol content is over .08, the legal limit beyond which it's illegal to drive. Further, we're told, the risk from cell phones is the same whether the driver holds the phone or uses a hands-free device.

What's missing is any context regarding how cell-phone risks compare to other distractions.

For example, a common trope in journalism on this topic quotes some politician or researcher describing how they personally were on the road, talking on the cell phone, and were surprised to discover they'd missed their exit without even noticing! "Gosh, I didn't realize how distracted I was," they'll exclaim. In last year's big round of media on the topic, it seemed like every other article included a version of that anecdote. But the other day my wife and I were in the car having a rather detailed conversation on family matters and I missed two turns on the same trip, both directly attributable to being distracted by the conversation I was having. No cell phone involved.

So if it turns out that talking to a passenger is just as distracting as using a cell phone (or more so, since one also must process facial expressions, body language, etc.), will we then ban passenger conversations? The fact that hands-free phones distract as much as hand-helds means that the distraction is a function of your brain being engaged in conversation. That's not an indictment of the technology.

This well-intentioned impulse to ban any activity deemed remotely dangerous - usually in a statute named after a dead child whose parents insist that Johnnie or Susie would be alive if only this or that law had passed - in practice seldom achieves the promised results. Unfortunately, instead of go back and repeal the laws that didn't work, next time around the Lege inevitably finds another outrage, new tragedies, new dead children to name bills after, and then applies the same failed formulas without first determining if a new criminal law would really help.

Not every social problem can be solved by cops, courts, jails and prisons. Some may be solved through regulation. Or tax policy. Or land use decisions. Or public works expenditures. Liability for traffic accidents is meted out every day in civil court; in this case, perhaps that's the venue best suited to create meaningful disincentives. Or maybe, God forbid, some problems in the world needn't be solved by government at all.

If using criminal law enforcement to ban cell phone use or texting has no measurable benefit in so far as reducing accidents, the only other reason to pass such laws is to "send a message," as the hackneyed saying goes. And because nobody reads the traffic code in their spare time, if that's your goal you'd be better off buying TV time and repealing unnecessary laws that don't make us safer.

Nueces constable cleaning up evidence room mess; how many others are just as bad?

One consequence of 21st century constables taking on workaday law enforcement duties outside their traditional process-serving functions has been that these small, independent agencies with little accountability or oversight become responsible for managing complex processes for which they're not equipped, like the ins and outs of keeping their own evidence rooms.

In Corpus Christi, when a constable elected in 2008 took over he found their evidence room a wreck, with drugs and guns that should have been disposed of (or in the case of some of the guns, returned to their rightful owners) a decade ago or more. Reports the Caller Times ("Precinct 5 constable cleaning evidence room," Jan. 28):

A World War II Japanese bolt-action rifle has been sitting in the Nueces County Precinct 5 constable’s evidence room since at least the early 1990s.

A .45-caliber submachine stolen in Fort Lauderdale, Fla., in 1983 has been in the constable’s small closet gathering dust since 1997.

There is confiscated marijuana, heroine and cocaine, too, some aging for decades on shelves.

Constable Dionicio “Don” Ysassi had enough.

“It’s time for us to clean house,” he said.

The drugs will be burned, and the weapons will be destroyed or returned if the owners claim them.

People have been asking Ysassi about their weapons he may have, some taken during routine traffic stops years ago in the precinct’s 320-square-mile jurisdiction.

There are 140 weapons approved for disposal, Ysassi said Wednesday. Court orders have been obtained to destroy 70 guns. Five others are evidence in pending criminal cases, and 65 have serial numbers cleared by Bureau of Alcohol, Tobacco, Firearms and Explosives for people to claim.

“We have worked with the sheriff’s department for weeks to identify weapons not related to any crime,” said Ysassi, who inherited the property room when he took office following the 2008 election. “So people can now come to our office and request them back.”

Those being destroyed may have no serial numbers, have had barrels sawed off or were confirmed stolen by people who no longer want them, said Deputy Larry Thieme, who has researched the weapons’ history the past six months.

Anyone claiming a gun will have a background check to ensure they have no present criminal court action, Ysassi said.

“We just want to do the right thing,” he said, “and get people’s property back to them.”

Needless to say, it's not good to have a bunch of street-ready drugs and guns with serial numbers filed off laying around for years on end when they're not needed for an ongoing prosecution. This was a recurring issue with Texas' old drug task force system. Small, independent agencies with no oversight often have extremely lax management standards regarding evidence retention, and the result was a lack of accountability and frequent thefts of drugs, often in significant amounts.

Charley Wilkison of CLEAT likes to point out that many police unions were originally organized out of the evidence room in their department's basement because an assignment there historically is how departments punish or sideline officers with a history of disciplinary problems, who also happen to be among the most likely to agitate for unionization in order to protect their jobs. Whatever the benefits for unions, though, the public is better served when evidence rooms are run by dedicated, civilian professionals with clear policies and procedures about what should and shouldn't be in the evidence room, when, and why.

How many more constables, school district police, and other tiny, sub-jurisdictions have their own musty, neglected evidence rooms that could use a similar housecleaning? Quien sabe? I'm certain this Nueces County constable isn't alone in presiding over an evidence room that could generate negative press if reporters took time to look.

Chron: Cops shouldn't run Houston crime lab

This editorial from the Houston Chronicle this morning decrying foulups and backlogs at the Houston PD crime lab pretty much reflects my views on the subject. The piece opens:

You've got to be kidding, we thought: The Houston Police Department's crime lab has a backlog of more than 300 firearms forensics cases? On top of its backlogs of untested rape kits and unchecked fingerprints? and after years of cleaning up crummy work that led to at least four wrongful convictions?

At this point, it ought to be news if HPD's evidence analysts do something well.

And it ought to be long past obvious that our police shouldn't be managing a forensics lab. As the National Academy of Sciences reported last year, this isn't just HPD's problem: Cop culture naturally clashes with scientist culture — and when a forensics unit is inside a police department, almost inevitably, cop culture wins. When the budget is tight, rather than cutting uniforms on the street, departments slash lab budgets below the bare minimum. They don't hire enough techs, or they hire low-paid, badly trained ones. Backlogs and shoddy work become almost inevitable.

In Houston, we're now paying a high cost for trying too hard to save money on forensics: So far, City Council has allocated more than $7 million for contractors to attack our various backlogs.

But worse, the police department's slow, often shoddy lab work has made us all less safe. Dangerous guns — and the people who shoot them — stay on the street. Rapists aren't apprehended. And the innocent can languish, stuck in our overcrowded jails.

So we ask yet again: Isn't it time for a regional forensics lab, one that works with all our area's law enforcement agencies but remains its own independent entity?

Bradley violated Open Meetings Act at forensic hearing

A Houston Chronicle column by Rick Casey ("The revolt of the scientists," Jan. 31) details behind the scenes wrangling at the Forensic Science Commission meeting on Friday, in which Chairman John Bradley first ejected, then reluctantly allowed in, a documentary camera crew tracking the Willingham case. Here's a tasty excerpt:

Friday started badly for John Bradley, the Williamson County district attorney selected last fall by Gov. Rick Perry to ride herd over the troublesome scientists on the Texas Forensic Science Commission.

His first official act of the morning was to violate the state's open meetings law.

Then his day got worse. ...

Bradley unilaterally wrote the agenda for Friday's meeting to focus on new policies and procedures, omitting the Willingham report. He also unilaterally chose Harlingen (which is as close to Mexico City as to Fort Worth, where three of the nine uncompensated and busy commission members live), making wrong my snide prediction that he would hold the meeting in Presidio to discourage reporters.

The session took place in a modest meeting room at a Marriott Courtyard Hotel. A few area reporters were seated around the walls, as well as a handful of protesters carrying signs. A camera crew from the national Innocence Project streamed the meeting live on the group's Web site.

But Bradley evicted an Austin-based documentary crew before the meeting started. One of its members called the attorney general's office in Austin, which sent a message to Barbara Dean, the assistant district attorney who has attended all of the commission's meetings, providing legal guidance since its inception.

An hour and a half into the meeting, Dean, seated behind Bradley, tapped him on the shoulder and quietly spoke into his ear. He announced a 10-minute break, and when the meeting resumed the film crew was in the room.

When I asked Bradley about the matter, he curtly told me to talk to the film crew. I said I had and he replied with annoyance: “Then you know.”

His defensiveness was understandable. Enforcement of the Open Meetings Act is the responsibility of local district attorneys such as himself.

See related Grits coverage of the meeting:

• Hectoring approach works for John Bradley at Forensic Science Commission, for now
• Forensic Science Commission meets today, but does it have rulemaking authority? Some say 'no'

Were indigency, amnesty programs for Driver Responsibility Surcharge secretly "dropped"?

The Dallas News today has a story on the Driver Responsibility Surcharge program that worrisomely neglects recent board-level activities on the subject at the Public Safety Commission in the last six months. Here's a substantial excerpt:

The Texas Driver Responsibility Program was designed to assess large additional fines – into the thousands of dollars apiece – to discourage certain offenses, such as drunken driving, and generate money for trauma care and highway construction. ...

And while the Legislature may give some relief to lower-income drivers in two years, a leading critic said the program remains a modern-day "debtors prison" for a large number of Texans. An estimated one in nine arrest warrants in Austin, El Paso and other cities are being issued because of the surcharge program.

"It's a complete failure," said state Sen. Eliot Shapleigh, D-El Paso, who sponsored unsuccessful legislation to kill the program last year. Shapleigh was able to insert language into a related bill that would waive surcharges for indigent Texans, but it won't be effective until the fall of 2011, and then only if it has no significant impact on the state budget.

"What's happening is that people can't pay their fines, and then they lose their driver's license. That means they can't get to work," he said. "It has a snowball effect that's hurting a large number of citizens."

Gov. Rick Perry, who signed the surcharge legislation into law, remains a backer of the program despite its troubles. In signing the measure in 2003, he cited projections indicating it would raise $1 billion for trauma care centers by 2008.

"The governor continues to support this program, but he expects the Public Safety Commission to continue looking for ways to improve it," said Katherine Cesinger, a spokeswoman for Perry.

But the program never worked as planned. More than 60 percent of the surcharges – $1.05 billion – has not been paid. Of the 1.9 million Texas drivers who have been told to pay, about 1.2 million have not, nearly two-thirds of those in the Driver Responsibility Program. If drivers don't pay, their licenses are automatically suspended 30 days after their initial conviction.

The state has collected more than $672 million, but none of it has gone to highways. And just a fraction has gone to trauma centers, said Shapleigh, who noted that the original push for the program came during the state's budget crunch in 2003, when lawmakers were scrambling for new revenue sources. The money is sitting in the state Treasury. The law that created the program required that collections pass a certain threshold before money is allocated.

The story oddly doesn't mention that the Public Safety Commission in August ordered staff to draft rules implementing an amnesty/indigency program; most recently I was told they would come up at the PSC in February.

In that light, one is mildly alarmed about a sentence toward the end of the story declaring "The Public Safety Commission at one time was considering a partial amnesty and incentive plan to boost payments, but that effort has been dropped." If that effort has been "dropped," that's not anything that was ever announced to stakeholders.

The last public action by the PSC I'm aware of was a motion by Commissioner Tom Clowe unanimously approved at the September meeting directing staff to bring back a version of the proposed rules that would apply retroactively. At the time, commissioners seemed enthusiastic about the proposal. DPS staff have insisted since then that they wouldn't share the draft with the public or members of the Legislature until the board had seen them. Maybe the rules have since died due to some invisible, internal bureaucratic machinations, but that's not what I was told as of Friday.

Supposedly Governor Perry's office expressed concern last fall about the fiscal impact of reduced surcharge revenue, which probably accounts for the delays. But rather than view this as lost money - and keep in mind they weren't collecting 70% of it, anyway - from a free-market perspective, the suggested DRP amnesty rules in practice amount to a substantial tax cut for 1.2 million Texans. What's more, in some cases lowering surcharges to manageable amounts could generate higher payment rates that offset losses. And amnesty would give drivers incentives to become street legal and buy insurance, whereas currently the surcharge is a disincentive that spawns illegality.

In an election year, you'd think it'd be easier to sell a policy that de facto puts money in the pockets of 1.2 million Texans and reduces the rate of uninsured drivers. In my fantasy world where I have enough money to buy the list of 1.2 million DRP scofflaws from the state and send them direct mail, I'd love to see postcards showing up in these voters' mailboxes telling them, "Times are hard, you deserve a break." There's some latent political oomph behind this issue, in other words, if it were ever properly tapped - 1.2 million people is a lot of folks.

Time will certainly tell, and the delay lets us know something's going on behind the scenes, but who knows what? It probably can't be good. I'll keep rooting around to see what I can find out.

Classics, serious literature included on TDCJ's reading ban list

Eric Dexheimer at the Austin Statesman examined the 5,000 book titles rejected by the Texas Department of Criminal Justice over the last five years and says "Texas prisoners are missing out on some fine reading." A notable excerpt from the story reads:

Novels by National Book Award winners Pete Dexter, Joyce Carol Oates, Annie Proulx and William T. Vollmann have been banned in recent years. Award finalists Katherine Dunn and Barry Hannah are on the Texas no-read list, too, as are Pulitzer Prize winners Alice Walker, Robert Penn Warren and John Updike.

Prisoners can't peruse certain books by Pablo Neruda and Andre Gide, both Nobel laureates. "Krik? Krak!" by Haitian writer Edwidge Danticat, who last year won a MacArthur "genius" grant, is prohibited behind Lone Star bars. Books of paintings by some of the world's greatest artists — da Vinci, Picasso, Botticelli, Michelangelo — have been ordered out of state correctional facilities.

And just because a book is a best-seller in the free world doesn't mean it's available on the inside. Harold Robbins, Pat Conroy, Hunter S. Thompson, Dave Barry and James Patterson belong to the don't-read fraternity. Mystery writer Carl Hiaasen does, too, as do Kinky Friedman and Janet Fitch, whose "White Oleander" was an Oprah's Book Club selection.

John Grisham has had four blockbusters banned since 2005. And inmates will have to wait for parole before diving into "Precious," the book by Sapphire that last year was turned into a critically acclaimed movie.

Political connections don't seem to count for much, either. Her father may have been governor and president, but Jenna Bush's "Ana's Story: A Journey of Hope" made the banned list in November 2008.

Debunking Dallas crime stats

Dave Hiott at the Dallas News Crime Blog doesn't know whether to believe Dallas crime stats anymore, despite purported improvements in 2009. He provides this excellent list of recent Dallas News stories critical of DPD crime data reporting:

The major stories:

-- Police not counting all crimes -- Omitting legitimate auto burglary cases improves stats; system being reviewed
-- Do police count all burglaries? Kunkle says intent must be clear in break-ins as some fault classification system
-- Experts: Dallas undercount of assaults builds 'artificial image'

And there's more:

-- Crime counts to change -- Procedural move, review planned after car break-ins underreported
-- Steve Blow: Truth takes a beating in Dallas crime stats
-- Editorial: Crime statistics must be accurate
-- Dallas police count more car burglary reports

More on juvie mental health summit

I couldn't attend the summit at the capitol Thursday on juvenile justice and mental health, but Ben Philpott from the Texas Tribune has a brief podcast covering the event.

See also the group Texans Care for Children's page on the Summit from their website, including selected materials from the event.

Archived video is not yet posted on the Senate website but should be listed here when it becomes available.

Hectoring approach works for John Bradley at Forensic Science Commission, for now

If I were a Forensic Science Commissioner who'd gone to Harlingen for yesterday's meeting, I'd be pretty darn grumpy at my chairman today for:

• Usurping power from commissioners: Bradley refused to put "action items" on the agenda that were designated in the minutes from the last meeting.
• Hijacking the meeting agenda: The chairman arrived in Harlingen with a detailed set of "rules" that were never authorized by the commission and insisted they focus on them exclusively.
• Concealing key activities from commissioners: Most FSC members were never told the chair was drafting rules nor did they authorize him to do so. They were first informed of the rules' existence and given a draft the day before the meeting.
  
• Wasting commissioners' time: After spending all day on "rules," the chairman revealed at the end of the meeting that the commission had no rulemaking authority, announcing that these were only voluntary "guidelines" representing an informal agreement that is "not even enforceable on ourselves."
• Ignoring "process": Though the Commission historically operated under Robert's Rules, Bradley ran the meeting on a "consensus" basis, which removed limits on the chair, obfuscated members' right to control the process, and allowed Bradley to railroad through his agenda.
• Dissembling: When a commissioner told the chairman her vote hinged on whether old cases already in the pipeline - including ones where the Commission had already paid outside consultants (there are only two) - would be subjected to the new committee process, Bradley said no, they would not. After the vote, when the meeting had nearly ended, Bradley insisted that Willingham's case must go through "part of" the new committee process. If he'd been honest about that during the debate, IMO a majority of commissioners present wouldn't have supported his rules.

That was really quite a display. I'll give him this. John Bradley came into Harlingen with an agenda; he was on his A-game when other commissioners were back on their heels and didn't know what to expect; and as a result he got what he wanted out of the meeting: Delay discussing anything substantive about flawed forensic science and a new "process" in which he can bury the Willingham case in committee until after the November election.

It was a pretty brazen performance, but judging by minimalist MSM media coverage, the Williamson County DA clearly made a good bet that - by moving the meeting to the Rio Grande Valley on a Friday and waiting to produce the rules until the last minute - he would get away with such bold hectoring of the commission. It's not a great start to Bradley's relationship with his fellow commissioners, but he's obviously not there to make friends. He's there to delay the commission's work and to impede the Willingham investigation by hook or by crook. And he's succeeding.

MORE: See AP's coverage of the meeting.

More delays on DPS driver responsibility rules

The Public Safety Commission met today but did not take up proposed (though still unveiled) new amnesty and indigency rules for the ironically named Driver Responsibility Program, I was told by a reliable source. This person indicated it would be taken up next month, but then I was also told it would be taken up this month, and back in September ...

These delays and an ominous silence from within the agency about what changes have been made to the original proposal make me nervous, but I'm trying to remain hopeful that this news doesn't mean they're weakening the proposed amendments behind the scenes.

RELATED: Thanks to a reader for pointing me to this recent column by state Sen. Eliot Shapleigh on the DRP rules, arguing that "Our founders never intended for debtor’s prisons to substitute for a tax system."

Forensic Science Commission meets today, but does it have rulemaking authority? Some say "No"

(LIVEBLOGGING BELOW) This was received via email from the national Innocence Project out of NYC, which will webcast today's Forensic Science Commission meeting out of Harlingen:

As you are probably aware, the Texas Forensic Science Commission is meeting [this morning] for the first time in six months. This is the commission’s first meeting since Gov. Rick Perry suddenly replaced its chair and several of its members while it was in the middle of an investigation into the case of Cameron Todd Willingham.

The Innocence Project will stream live video of the meeting on our website. The meeting begins at 9:30 a.m. (Central) on Friday, January 29, and will run several hours. Newly appointed commission chairman John Bradley decided to hold the meeting in Harlingen, which makes it difficult for many interested parties in the state to attend. Those who cannot be in Harlingen can watch the meeting live online starting at 9:30 a.m. (Central).

The agenda for the meeting is here. The Willingham case is not on the agenda, which Bradley set, although it was on the agenda for the last scheduled meeting of the commission (which was canceled when Gov. Perry replaced the chair and several members). ... The agenda for tomorrow’s meeting does include a discussion of pending cases. Also, individual commissioners have the authority to place a discussion of the Willingham case on the agenda during tomorrow’s meeting.

Willingham was executed in 2004 for allegedly setting a fire that killed his children. Before and after his execution, leading experts found that there was no scientific basis for deeming the fire an act of arson. The Innocence Project formally asked the Forensic Science Commission to investigate the case in 2006. That request specifically asked the commission to determine whether there was negligence or misconduct in the forensic analysis that initially deemed the fire an arson and – importantly – to determine whether other arson convictions in Texas may have been based on the same kind of unreliable forensic analysis. Nearly two years ago, the commission unanimously decided to pursue an investigation, which proceeded in an objective, transparent fashion until October 2009, when the chair and several members were removed. For full background on the Willingham case, go to: http://www.innocenceproject.org/willingham.

I was also forwarded by the Innocence Project a letter they'd sent to every individual commissioner arguing why the shift in focus toward policies and procedures is unnecessary. When I asked this morning, they wouldn't post it online until after the meeting. But a notable portion of the letter reads:

We were surprised by Mr. Bradley's suggestions since the Commission has proceeded transparently, with regard for its enabling statute and Texas law, and with advice from the Attorney General's office throughout the process. The comments also raised questions for us about whether the Chair, without a majority vote of the Commission, might be able to unilaterally invalidate, alter or delay the Commission's ongoing work. This is of particular concern to us as a case that we submitted three years ago is now approaching the final stages of review by the Commission.

Consequently we asked the law firm of Weil, Gotshal & Manges to educate us about two related legal issues: (i) The proper procedures for decision making by the Texas Forensic Science Commission; and (ii) The relative authority of individual commissioners, inclusing that of the presiding officer. ... In summary,[Weil's] memo finds:

• The enabling statute for the Texas Forensic Science Commission did not provide the Commission with rulemaking power;
• The Texas Forensic Science Commission is not a "state agency;"
• The Commission appropriately established the policies and procedures that enable it to fulfill its statutorily prescribed duties;
• The business of the Commission is governed by parliamentary procedure, which directs that the powers of the presiding officer are generally ministerial, and that the will of the majority controls; and
• There does not appear to be any reason to further delay the Commission's pending investigations, and that it would be most appropriate in light of the Commission's statutory responsibility for the Chair or any Commissioner to propose that a vote be taken at the January 29th meeting to renew action on such investigations as soon as possible.

The legal analysis echoes what the Attorney General's representative has already told the Commission. The Commission sought and received speciffic and tacit approval about how it conducted its meetings from the Attorney General's representative who was present during your meetings. In short, it is clear that the Commission does not need to take time from its ongoing work to revisit its operating policies and procedures.

You can watch the proceedings here starting at 9:30. Sounds like commissioners who dislike the chairman's new approach may now have more ammunition to push back, if they choose to use it.

UPDATE (11:03): I've only gotten to watch bits and pieces so far, but a couple of commissioners were pretty unhappy that Chairman Bradley had begun drafting rules and issuing statements to the media without the knowledge or consent of other commissioners. The Commission never approved that work, the chairman was told, and they felt like he was going around them. Bradley replied with a tone-deaf retort that they should have known because he'd said he was working on new rules in his op ed, though he apologized if his fellow commissioners felt left out.

When a commissioner suggested that, instead of Mr. Bradley's unsolicited "rules," they instead take up the half-dozen "action items" listed in the minutes from the last meeting, the chairman declared that they would only discuss items listed on the agenda. The room appeared disgruntled, and rather than debate the matter further Bradley declared they would "take a break" and resume in ten minutes with a discussion of his proposed policies.

Bottom line, for somebody concerned about having procedures in place, some members think Chairman Bradley violated the commission's existing procedures by moving forward on unauthorized action items while ignoring the action items the group was working on before he came on board. That's a pretty plausible interpretation, if you ask me.

NUTHER UPDATE: (11:30) Chairman Bradley now is going down the detailed list of his proposed new rules and nobody on the commission is asking any questions or debating the sometimes rather arbitrary language. (One wonders what was said to whom during that break?) These rules are way too much for the commission to digest and vote on in one meeting when they'd never authorized their creation in the first place. I hope they vote to delay the rules to give more time for public vetting and that someone on the commission moves that all of their old action items be placed on the next agenda.

AND MORE: Now commissioners are speaking up, particularly about the narrow definition of "misconduct" that requires the FSC to prove an actor's behavior was "deliberate." One commissioner (I wish I could match names to faces!) said that evaluating individuals' culpability was outside the scope of the commission's charge to investigate science. Another said the requirement of showing "deliberate" misconduct meant too many errors would get a pass.

Bradley replied by saying the Legislature told them to investigate "misconduct," which implies passing judgment on intent. And Dr. Peerwani pointed out that cases could still be investigated as "negligent" if intent couldn't be proven. Annoyingly, Bradley's schtick was filled with comparisons to prosecutions and the rights of criminal defendants, but the FSC does not investigate individuals and has no power to punish them. Their focus is on bad science, not bad actors.

Unfortunately these proposed rules aren't available online, and commissioners only got them yesterday, they lamented. In an astonishing moment of hubris, Bradley announced he "cannot be held responsible" for failing to get commissioners' input on either the meeting agenda or the rules! He claimed doing so would have violated the Open Meetings Act. That seems highly unlikely. Other state commissions get such information to members in advance of their meetings.

AND MORE (11:51): Complaints were made that the most controversial sections of Mr. Bradley's rules are also the portions with no references to sources and appear not to rely on definitions and standards from other jurisdictions or the feds, who are currently in the process of addressing exactly these questions. Dr. Sarah Kerrigan said the FSC should wait for those national standards to be fleshed out, but Bradley said he wouldn't wait on the feds to act and the Commissioners in the room were more qualified than whoever the feds had assigned to the job. (Of course, Bradley didn't consult all the knowledgeable people in the room - he wrote the standards himself!)

(12:05): The AG rep described a "small gap" in the negligence and misconduct definitions (I don't have a copy so I can't be specific) that includes people who are aware of professional standards and fail to follow them but where the incident may not rise to the definition of "negligence" in the rules - a category the AG's rep said would likely make up a large number of cases submitted to the commission. The scientists on the committee didn't seem to understand the significance of what was being said to them on this score (and the defense attorney's rep isn't there), so they moved forward without changing the language or closing the "gap." Ouch!

(12:16) This just occurred to me: If the FSC is a "state agency" as Bradley contends (contradicting the Weil firm's interpretation), can they really enact these rules today, as the chair keeps saying? Don't they have to publish the rules in the Texas Register then hold a public hearing like everybody else? Surely Chairman Bradley can't just hand out a long set of rules the day before the hearing then push for a final vote the next day? For somebody concerned about "process," he's pretty quick to ignore such formalities!

(12:24): They're on a break. I wish these commissioners knew more about parliamentary procedure; Bradley's running the show on the agenda, but they get to make motions, too! Someone should have moved to add the other six action items from the last meeting's minutes and take them up first!

(12:28): Bradley wants the Commission to meet less often and for more work to get done in new committees yet to be created, whose chairs he wants sole power to appoint.

(12:43): Lots of pushback from several committeemembers on the chair's overreaching power in the rules, particularly by Dr. Kerrigan. They democratized the committees somewhat, requiring their membership to be approved by the whole committee and letting each committee name their own chair. These committees, according to Mr. Bradley, won't be subject to open meetings and don't have to post their agenda before they meet, which judging by his overall goals for the commission is probably in part why he wants to create them.

(12:50): A "Complaint Screening Committee" is the next Bradley innovation. Previously, the whole commission evaluated whether to accept complaints without the open meetings exemption. Bradley has a long, detailed list of case evaluation criteria here that nobody's questioning as they go through it. These rules really need more vetting before adoption.

(1:20): Dr. Kerrigan is asking all the right questions, particularly about the investigations committee structure, but there's a bit of what I'd dub a parliamentary procedure gap. Though the Commission supposedly operates under Robert's Rules, the chair is running the meeting based on "consensus," ironically. That gives him a big edge because it removes limits on the power of the chair. That adds to the edge Bradley enjoys from being the only one who's had more than 24 hours to look at the rules.

Those dynamics have combined to generate many moments during this meeting when someone could move to change the rules in response to criticisms made, but for the most part nobody ever does so. And whenever the cacophony of criticism becomes too strong, it's always the chairman, not the committee, rewriting the draft. Frustrating. I don't always like his agenda, but John Bradley's a smart fella. Manipulative, but smart. Giving commission members the rules draft the day before was really a low-rent move. Wish I had a copy! It's hard to follow the discussion without it.

(1:36): The scope of the proposed legislative committee's issue areas seemed pretty limited to me - more about the commission's own funding than recommending new laws to improve forensic practices - but it's hard to tell without reading them. The chair read the description just once, and pretty quickly. Some committee members are state employees and most of the discussion was about to what extent they were allowed to participate in the legislative process. (That makes me laugh when you consider the sweeping legislative agendas of large agencies like DPS or TDCJ.) Did I mention I'm looking forward to reading the actual rules draft?

(1:50): Bradley thinks the FSC, which currently only has a single staff member (who actually, formally, works for Sam Houston State University), needs its own full-time General Counsel. The FSC's entire staff would then consist of one administrative staffer who's officially paid by someone else and one lawyer - no scientists, investigators, etc.. The AG rep said the duties so far had not overburdened her and she'd not suggested the idea. The committee is pushing back.

The news that the only staffer actually works for SHSU actually makes a strong case for the Weil firm's contention that the FSC is not really a "state agency" at all and therefore not empowered to even create these rules.

(2:02): Kerrigan suggested that the commission's "communications policy" should be written down. Though Bradley had previously ordered commissioners not to speak to the press or other state agencies, he backed off that when Kerrigan pressed him on it and said that decision would be made when they created a written policy, until which they were free to speak to whomever they wanted. Dr. Kerrigan got off a good line: "Talk about us making up the rules as we go along!"

At the end of the process, Bradley himself admitted the FSC doesn't have rulemaking authority! Asked if these were laws, rules, or guidelines, Bradley said "guidelines" is a good word, though he prefers "policies and procedures." He described the policies as an informal agreement. "They're not even enforceable on ourselves," he opined.

So why are they going through all this then?

(2:09): Dr. Kerrigan asked whether these rules apply to pending cases or new ones. Good question! Bradley said new or recent cases would be affected but not those already in the pipeline. A commissioner asked particularly whether cases where they'd already spent money on outside consultants would now have to go through the new process. Bradley said "no."

(2:12): The rules passed. The chair appears quite proud of himself, but the body language of the other commissioners conveys a different set of emotions.

(2:27): Bradley backtracked after the rules passed to say old cases like Todd Willingham's in fact will go through his new committee process. That's a complete 180-degree flip from what he told the commission members twenty minutes ago, back when Commissioner Kerrigan told the chair her vote depended on his answer.

Bradley did not allow public comments - for the first time in the commission's history, one member noted - but told those present they could submit written comments to the commission coordinator if they cared to do so.

Busy day at capitol on juvie, women's corrections

Regrettably, I won't be able to attend two events at the capitol today that look really interesting: the House Corrections Committee meeting this morning on women and corrections and the juvie justice summit going on simultaneously at the capitol. Thankfully, both will be broadcast online and archived, so I'll try to watch them soon. You can watch the Corrections Committee live here beginning at 9 a.m., and the juvie justice summit will be streamed online here.

I received this press release this morning from Texans Care for Children, the group holding the juvie justice summit:

Juvenile Corrections System Acts as Mental Health Provider of Last Resort for Many Texas Families

Panelists at Thursday Capitol Summit on Mental Health and Juvenile Justice will explore the issue

AUSTIN – A Texas parent who resorted to turning her mentally ill son over to the Texas Youth Commission so he could get treatment and the mother of a Texas child with disabilities, incarcerated from ages 10-15, for a misdemeanor are among the families whose stories will be shared at a special Texas Summit on Mental Health and Juvenile Justice Thursday. Family members will be joined by national policy experts, advocates for children and state leaders and their staff for a Capitol discussion about the connection between shortages of children’s mental health services and incidences of juvenile delinquency in Texas.

“Providing more children and youth with reliable access to mental health care, not only can prevent crime in Texas, it also gives more of our kids the chance to be successful,” said Eileen Garcia, executive director of Texans Care for Children, the nonprofit child advocacy organization hosting the summit. “By connecting youth who need treatment to community-based services, we can prevent many kids from acting out in the first place – and we can reverse a trend that now has more kids in Texas than any other state growing up to enter prison, instead of the workforce.”

The Summit, whose partners include Methodist Healthcare Ministries and Texas Mental Health Juvenile Justice Action Network, involves first-hand family stories and policy discussions about:

• The juvenile justice system acts as the de facto mental health delivery system for Texas, and several experts believe this trend is on the rise. Fewer than one in five Texas children diagnosed with a mental illness, serious emotional disturbance, or other condition that puts them at risk of being removed from their home or school actually receives mental health treatment. More than 40 percent of youth involved with the state’s juvenile probation system are mentally ill. In the Texas Youth Commission, a third of all inmates have a serious mental health problem, and not all receive treatment. For example, fewer than half of TYC youth in need of substance abuse treatment receive it.

• Texas ranks 49th in the country in per capita spending on mental health treatment and suffers shortages of mental health providers in two-thirds of its counties. Nationwide, mental health experts say the juvenile justice system is seeing its worst crisis in decades, as few health plans offer coverage for mental health services for children, states cut back on funding for community-based mental health programs due to budget shortfalls, and the number of specialists able to provide mental health services to youth declines.

“All these factors are converging to suggest Texas should act right now to meet mental health challenges head-on at the time when interventions often matter most – early in life,” Garcia said. “We are pleased that the 81st Texas Legislature took steps to close loopholes that prevented some juveniles from getting mental health services they need. The next step must be ensuring services for all youth with mental illnesses, including those in the juvenile justice system today and those we can prevent from entering it in the first place.”

Zero tolerance on TDCJ contraband hasn't worked. What now?

At this point, IMO state officials concerned about stopping contraband at Texas prisons should cease using the term "zero tolerance." It has no meaning at all and makes those who use the term appear incapable of achieving their goals.

This week we learn of a death row inmate who'd taken a picture of himself with a cell phone and had it posted online. This after an inmate last year used a smuggled gun to escape from a TDCJ medical transport - a mystery they still can't solve.

Perhaps Sen. Whitmire should be thankful that the inmate who notoriously contacted him by phone in 2008 didn't send him sexting photos!

I'd don't care what title is in front of your name - Governor, Senator, TDCJ Executive Director, or for that matter, POTUS - announcing a "zero tolerance" policy on prison contraband sets up the person using that language to later be accused of gargantuan failure, as in the case of the escapee with a gun more than a year into TDCJ's zero-tolerance era. As long as prisons have existed in human history, contraband has been smuggled into them.

"Zero tolerance" cannot succeed at its stated goal because human ingenuity (as well as human depravity) is unbounded and government resources are not. The use of the phrase "zero tolerance" for contraband reminds me of its frequent use in response to drugs or graffiti: It sounds good to the public and it certainly indicates someone's upset about the problem, but just saying it don't make it so. In the real world those activities still occur and what's really needed are systems for managing the problems.

Similarly, what's needed at TDCJ, in addition to existing on-the-ground tactics for finding contraband, are separate management-level systems (with authority to require policy improvements) to evaluate each failure and adjust tactics to combat each new smuggling method identified. New incidents should be viewed not necessarily as a failure that requires punishing agency officials (unless it turns out TDCJ staff were directly culpable and violated the law), but as an opportunity to learn and adjust over time in a formal, systematic way. In other words, what's needed is a process, not a slogan; a system, not just an attitude.

Forensic backlogs force tough choices

Bradley Olson at the Houston Chronicle has a good piece on the problem of backlogs at the Houston crime lab ("Backlog woes continue at HPD lab," Jan. 27):

The Houston Police Department has developed a backlog of more than 300 cases in which firearm forensics have not been performed, the third major area of evidence awaiting analysis to build up as the crime lab works to achieve full legitimacy after being engulfed in scandal for years.

Despite years of effort aimed at cleaning up the problems that led to the wrongful convictions of at least four men, backlogs for thousands of cases also have developed in rape kits and fingerprint analysis.

Although the recent issues highlighted in an audit of HPD's fingerprint unit do not involve the crime lab — the two are separate entities — police in both instances have cited ongoing staff shortages, retirements and training requirements to explain the backlog of evidence. ...

The backlogs cause two major problems in the justice system, said JoAnne Musick, president of the Harris County Criminal Lawyers Association.

First, she said, because people often are arrested before evidence is processed, innocent people are jailed and forced into preliminary legal proceedings unnecessarily. Second, criminals who may be identified through forensic testing are able to remain on the streets and, potentially, commit new crimes.

HPD's backlog on processing fingerprints is currently 6,000 cases, reports Olson.

Harris County District Attorney Pat Lykos says in the article that the backlog argues for making the crime lab independent. That could be true, to the extent that the problem is the police department treats it like a dependent stepchild and diverts resources toward patrol or other activities. But whether the lab is independent or part of the police department, the problem of chronic backlogs stems from a shortage of resources - it's going to cost Houston a lot more money to fix this problem, either way, than they're spending on forensics now. The only other option is to choose not to devote forensic resources to certain categories of offenses, and if backlogs become too onerous, to expand those categories. That's a difficult array of political options, but somebody's going to have to make some tough choices to get the seemingly flailing Houston crime lab on track.

Cops expect a discount

From the Hubcap Grill Twitter feed out of Houston:

Geez. LOL. 4 HPD officers didn't order cause I wouldn't give them 50% off. If I get a speeding ticket will I get 50% off?

Via The Defense Rests.

Women's, juvie corrections up for discussion mañana

There are a couple of competing events up at the capitol tomorrow both of which deserve Grits readers attention, and thankfully both of which will be broadcast online. First, via an email from the Texas Criminal Justice Coalition:

On Thursday, January 28, 2010, at 9:00 am in Room E2.010, the Corrections Committee will also hold its first interim hearing to listen to both public and invited testimony on interim Charge 5, to review the range of services provided to females in the juvenile and adult criminal justice systems and hear recommended changes to ensure responsiveness to gender-specific issues. The charge also calls for the review of institutional and community supervision programs and utilization of correctional facilities that house non-adjudicated populations.

Committee members will also hear public and invited testimony on Interim Charge 6, which requires the monitoring of agencies and programs under the committee's jurisdiction.
Click here to view posting!

Note: This event will be broadcast live. If you cannot attend, click here the day of the hearings.

Meanwhile, at the same time the nonprofit group Texans Care for Children will be holding a juvenile justice issues summit. Here are the details from their press release:

WHAT: Texas Summit on Mental Health and Juvenile Justice

WHEN: 9 a.m.-12:30 p.m. and 1:30-3 p.m., Thursday, Jan. 28

WHERE: The Capitol Auditorium, E.1004 (in the Capitol Extension of the State Capitol Building, Austin)

Live broadcast online: http://www.senate.state.tx.us/bin/live.php

WHY: Recent events have put the mental health-juvenile justice connection in the spotlight—from the murder of a Tyler teacher by a former TYC inmate discharged for mental illness, to the spike in the use of new antipsychotic drugs for troubled teens, to the growing number of parents forced to forfeit their children to the corrections system in order to obtain mental health treatment for their kids.

To illuminate these issues and discuss policy solutions for Texas, the summit features:

· Texas parents who turned their children in to the juvenile justice system, Texas’ mental health service provider of last resort

· Nationally renowned featured guests, Kathy Skowyra, David Arredondo, M.D., and Joyce Burrell

· State policy experts in mental health and juvenile justice

WHO: The panelists above, state leaders and their staff, and host Texans Care for Children, a statewide child policy advocacy organization

FOR MORE INFORMATION CONTACT: Christine Sinatra, Communications Director, Texans Care for Children: csinatra@texanscareforchildren.org

I've been a bit under the weather this week but hope to head up to the capitol for at least part of both events.

California begins release of thousands of nonviolent offenders

I normally try to stick to Texas stories, but this news out of California merits the attention of anybody who cares about the topis covered on this blog ("Inmates released under new law," San Diego Union Tribune, Jan. 26):

A new law aimed at reducing the state’s inmate population took effect yesterday and had an immediate effect in San Diego County, where about 260 nonviolent offenders were released.

The convicts here — all doing time for offenses such as drug possession or petty theft — were let go under a provision that forces local officials to retroactively recalculate how they shorten sentences for good behavior and other credits.

Local law enforcement and court officials reviewed the files of 1,600 inmates, including those in county jails, to determine who should get out early, said Lisa Rodriguez, a deputy district attorney. Those convicted of serious, violent or sex crimes aren’t eligible for the accelerated credits, Rodriguez said.

Statewide, corrections officials launched their plan to reduce the prison population by 6,500 inmates and save the state more than $100 million over the next year. They said some of the revamped program’s elements will cut down on recidivism and allow parole agents to focus attention on more dangerous former convicts.

This is just the first step. Judges have ordered California to reduce its inmate population by 40,000 in the next couple of years. If they come even close to that, it will leave Texas (with only 60% of California's population) as the largest prison system in the country.

See related Grits posts:

• States slashing spending costs, closing units
• Some states actually shutting down prison units
• Emptying prisons makes Wired magazine's 'Smart List'
• California must reduce inmate numbers to achieve budget savings
  
• California to release older inmates to reduce medical costs
  
• California's partisan prison meltdown: Why Texas didn't go there

Odds and Ends

Here are a handful of odds and ends that merit Grits readers attention:

Third Court of Appeals reducing backlog
After lagging behind other courts in case backlogs for years, under its new chief justice Austin's 3rd Court of Appeals is making a dent in its older cases. The 8th Court of Appeals out of El Paso now has the longest delays.

Batson not just an issue in old cases
Racial discrimination in jury selection by Dallas prosecutors continued at least until 2002, according to a ruling by a federal appeals court. Judge Catarina Haynes ruled in a so-called Batson challenge that "the state's reasons for striking [black jurors] ... were implausible or invalid, and therefore were pretexts for discrimination." What's more, the story mentions "a 2005 investigation by The Dallas Morning News that found prosecutors excluded blacks from juries at twice the rate they excluded whites.

Pick 'em
Speaking of juries, The Jury Expert has republished Mark Bennett's 16 Simple Rule for Better Jury Selection, which includes an interesting set of responses from various jury consultants.

Steroid investigation ignores juiced cops to go after athletes
Reporters are still trying to link the late steroid dealer David Jacobs out of Plano to professional athletes - most recently Michael Vick - but everybody seems to have forgotten, and stopped investigating, Jacobs' allegations that he'd sold steroids to police officers at five Metroplex departments, only one of which later implemented steroid testing. It continues to amaze me that Texas mandates testing for high-school athletes but not for police officers, though there's a much greater demonstrated problem with the latter than the former.

The Junk Science Conundrum
Jordan Smith at the Austin Chronicle has coverage of the Texas House Criminal Jurisprudence Committee hearing a couple of weeks back on the standards for introducing forensic evidence into court.

Jailed in Wichita County
The Wichita Falls Times Record News published a detailed story walking through the intake process at the Wichita County Jail.

Dallas prosecutor allegedly coached witness, concealed other suspect
The sole witness in a 1995 murder case now says he didn't see the defendant and picked him out "because that was what I was instructed to do by the prosecutor and not because I recognized him as being the shooter." The defendant "was freed after Dallas County prosecutors began to re-examine his case when a memo was found in a police file identifying someone else as a suspect. That memo was never turned over to his defense team as required by law."

Bexar jail suicides up
The year 2009 witnessed the highest number of suicides at the Bexar County Jail in a decade - six, which is the same number they'd seen over the previous five years.

Snitching: Criminal informants and the erosion of American justice
Alexandra Natapoff as a post at TPM Cafe Book Club promoting the themes in her new book, an also provides a link to the excerpted introduction.

Death penalty for corporations?
Now that the Supreme Court has ruled that corporations are people for First Amendment purposes, a satirist wonders if companies can receive the death penalty when they kill?