Monday, July 31, 2006
The Colomb residence was raided after a confidential informant named Stevie Charlot purchased three rocks of crack from Ann and Edward Colomb in Ann's bedroom. Two police officers heard Ann and Stevie discussing the transaction over a transmitter they had placed in the informant’s sock.
It got worse. During the March 2006 trial, a police officer testified that he had found crack cocaine in a car Sammy Davis and Edward Colomb were riding in back in 1993. Another officer reported that he had seen Danny Davis hand another drug dealer a rock of crack cocaine which was subsequently sold to a third party. That was in 1995. A third officer testified that he had purchased crack cocaine from Sammy Davis under the carport in front of the Colomb residence in 1999.
Then the coup de grace: thirty-one federal prison inmates prepared to testify that they sold members of the Colomb-Davis family over a ton of cocaine between 1993 and 1999. Defense counsel repeatedly emphasized that the prison snitches were cooperating with the government in exchange for time cuts. But there were so many snitches—could they all be lying? With so much smoke billowing from the Colomb’s little FHA residence there was bound to be some fire. If nothing else, the government had the cookies in the dresser drawer.
The three facets of the government’s case against the Colomb-Davis family were mutually reinforcing. Stevie Charlot was believable because two police officers corroborated his testimony. The police officers appeared credible because they were all singing the same tune. The jailhouse snitches were convincing because their testimony dovetailed perfectly with what the jury was hearing from the officers and the confidential informant.
To win this case defense counsel had to posit three overlapping conspiracies: a cop conspiracy, a conspiracy of snitches and a prosecutorial conspiracy perpetrated by a U.S. attorney using lying cops and lying snitches to win an easy conviction. Present one conspiracy theory and you look a bit sketchy; posit three overlapping conspiracies and the boys in the white uniforms come to take you away. You might as well be howling at the moon.
Why, jurors asked themselves, would so many people go to so much trouble to bring down a single family?
There is an excellent article in the July 26 issue of the Ventura County Reporter about how the California Correctional Peace Officers Association (CCPOA), the state’s prison guards’ union, is frustrating reform efforts to stem the overincarceration problem in California.
The Los Angeles Times noted in June, “With 31,000 members, the union is one of the most powerful players in
After launching “one of the most productive periods of prison reform” in California history, Gov. Arnold Schwarzenegger has retreated from the cause and given the guards union a “disturbing” level of clout over prison policy and operations, a federal court investigator charged Wednesday.To be sure, California has also been a leader on criminal justice reform, most notably through an initaitive passed by voters in 2001 that substituted treatment for prison for minor nonviolent drug offenders, a program UCLA researchers say has saved the state's taxpayers $800 million dollars. Governor Schwarzenneger has also proposed a laudable plan for moving some nonviolent women offenders from prisons to community corrections centers in major urban areas, which would promote their community reintegration.
Special Master John Hagar accused Schwarzenegger of backpedaling and warned that California was returning to an era when union leaders were allowed to “overrule the most critical decisions” of prison administrators.
However, in this election year, Schwarzenneger is also proposing building more prisons to satiate the CCPOA and his planned community centers for women, although privately operated, would have their costs driven up by the concession to the CCPOA to employ only union members.
All of this serves as a reminder that a vast, government-run prison system creates vested interests, just like any other enormous government program, that can obstruct needed reforms, even when advocated by a well-intentioned leader who brings celebrity status and plenty of political muscle to the job.
Saturday, July 29, 2006
In one sense James was right. The Federal Housing Administration’s 1939 Underwriting Manual cited the threat of "inharmonious racial groups" and stipulated that "if a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same social and racial classes."
But the civil rights movement of the 1960s marked a profound shift in philosophy. Four years before the Colombs purchased their home on the south end of Church Point the Community Reinvestment Act mandated that lending institutions actively encourage applications from low-income clients.
If James and Ann Colomb believed a new day of racial harmony was dawning in Church Point, Louisiana they were tragically wrong. In 1981 the sleepy little town was perfectly and (from the white perspective) happily segregated. The black population (roughly 30% of Acadia Parish) had its own Catholic Church, its own park, its own neighborhood—it even had its own Mardi Gras parade. Who could ask for anything more?
Black residents saw things a bit differently. Compared to the shacks in north Church Point, the Colomb’s three-bedroom FHA dwelling looked mighty inviting and it wasn’t long before other black families were following where James and Ann Colomb had led. Thanks to white flight a once all-white neighborhood is now predominantly black. In the late 1980s when Sammy Davis, the eldest of Ann’s five children, started high school the demographic shift in south Church Point was just beginning to gather steam.
A stocky young man, Sammy quickly emerged as a stalwart of the football team. In his freshman year of high school he started dating a white girl. The white community was horrified and the girl’s parents threatened to disown her. Throughout the South, the legislative revolution that allowed James Colomb to purchase an FHA home on the white end of town was resented as a Yankee intrusion. Most white residents of Church Point believed that integrated communities and inter-racial dating were sins against God; as such they could not be countenanced.
It wasn’t long before Sammy Davis’s brothers, Edward, Danny and Randy, had white girlfriends of their own. The local Ku Klux Klan responded with a barrage of threatening (and anonymous) phone calls. “You better tell that son of yours to quit messing with our girls or you’re gonna find him hanging from a tree,” the callers would say.
“Well, you better make sure there’s another stout limb on that tree,” Ann would respond, “’Cause I’m gonna find out who you are, I’m gonna hunt you down, and I’m gonna string you up right beside my son.”
The bold façade masked a growing sense of alarm. As the violence and frequency of the hate calls increased Ann and James had their phone disconnected.
Within the youth culture, meanwhile, the strict segregation that had long characterized Church Point society was rapidly disintegrating. The sense of alarm deepened when Edward Colomb began attracting the attention of college basketball scouts and his younger brother Danny showed early promise as a fullback. Star athletes are prime dating material and Ann Colomb’s boys were no exception to the rule.
For generations, “the Boulevard” (an oblong drag bordered at one end by the white Catholic church) had been the social centre of high school life. If you grew up in a small town you know the drill—kids circle the block in their cars looking for friends and dating prospects. Cans of beer are passed around and the local cops look the other way because they had been socialized into the same practices a few years earlier. Black people knew better than to show up on the Boulevard . . . until the Colomb boys hit high school. The thought of an integrated Boulevard sent shock waves through the white community.
As a tumultuous 1992 gave way to 1993, the racial tension in tiny little Church Point, Louisiana was palpable. Something had to give.
Thursday, July 27, 2006
The day-long hearing was tense and adversarial. No one knew what to expect. Judge Melancon could sentence the defendants to between ten and twenty years in prison and order that the family home be forfeited to the U.S. government. Or he could call for an evidentiary hearing. Or he could grant new trials and release three of the four defendants.
“If this conviction stands it will be a miscarriage of justice,” attorney Bill Goode charged.
“The court cannot re-weigh the evidence or substitute a judgment it feels is more reasonable,” U.S. Attorney Brett Grayson fired back.
“Motions for a new trial are not favored,” Judge Tucker Melancon agreed, “and are granted only with great caution.” New trials could only be granted, the judge told us, “in exceptional cases in which the evidence preponderates against the verdict.”
Finally, after a ten-minute break stretched to an agonizing half-hour, Melancon gazed at the ceiling and rendered his ruling. “I am convinced,” he said after ten minutes of preamble, “using the more onerous standard, that the defendants’ motions for a new trial, in the interest of justice, should be granted.”
Gasps of joyful disbelief echoed through the courtroom. “That will be enough of that!” a U.S. Marshall barked. The Judge told the Marshall to have Ann Colomb, Edward Colomb and Danny Davis back on the street within an hour.
As we waited outside the hulking structure they call the Lafayette Parish Correctional Center, little children, light-headed from the heat and intense humidity, were rolling listlessly down a grassy embankment—working heroically to entertain themselves in an atmosphere of high tension, joy and horror they could scarcely understand.
The children of inmates are remarkably resilient. Survival depends on it. A few weeks before the July 14th sentencing hearing in the Colomb-Davis case little Mariah Price was sitting in my lap reading from a Bible-story picture book. I turned the page to a picture of Joseph in prison.
“Do you know who that is?” I asked.
“He’s Jesus,” Mariah informed me. “He's in jail with my granny and God’s gonna get them out.”
Weeks later, as July 14th dawned, young Mariah Price bounced out of bed and clapped her hands. “This is a happy day,” she told her mother, “’cause my granny is getting out of jail.” Jennifer Price hugged her little girl and prayed that she was right.
Twelve hours later little Mariah was skipping in circles in front of the Lafayette Parish Correctional Center waiting to hug her granny. After two hours in the sauna-like conditions, Nancy Bean scooped up four children and drove them to the nearest McDonalds for an ice cream cone. Meanwhile, some of the older family members took refuge in the air conditioned waiting room of a bails bondsman.
Three-and-a-half hours after Judge Melancon ordered the release of Ann Colomb, Edward Colomb and Danny Davis, the three defendants were released to their loved ones. Natacha Colomb embraced her Edward and Elizabeth Davis rushed to her Danny. Elizabeth hadn’t been able to stay in the house Danny had built for her while he was locked up. Now she took the ring she had been wearing close to her heart and placed it back on Danny’s finger where it belonged.
When everyone was free, Danny called out, “Hey ya’ll; we need to thank God for this miracle.” Thirty men, women, and children joined hands in a big circle and Danny led us in a short, workingman’s prayer followed by the familiar words, “Our Father, who art in heaven, hallowed be Thy name . . .”
When you open a 500-piece puzzle the complexity is overwhelming. Over the next several weeks I will be putting together the pieces of the Colomb-Davis narcotics conspiracy puzzle and when I am finished you will understand why this case has the feds shaking in their well-polished wingtips.
Most defense attorneys who ever faced McEachern know the Plainview prosecutor generally came to court unprepared and won his more challenging cases with crude appeals to local prejudice. Wally hatch, McEachern's quiet, soft-spoken successor, doesn't play the game that way (although his assistant has been known to).
As the article below indicates, the drop in conviction rates can partially be attributed to the new "motor-voter" policy which has greatly expanded the pool of potential jurors. It is now more likely that more lower income whites, African-Americans and Latinos will be part of the venire and these folks are more pro-defense than their better educated, middle class counterparts.
The article hints that a pro-prosecution stance is highly correlated with education. But what kind of education are talking about? Our criminal justice system is primarily designed to control the folks who will not or cannot find a place in an increasingly high-tech economy. Training in the school of the streets becomes more arduous with each descending rung of the social ladder. People who have been arrested a dozen times for a long list of nickel-and-dime offenses know the courts can be capricious, vindictive and arbitrary. They know police officers can be highly creative on the witness stand. As the social status of a jury drops the evidentiary standard rises and it becomes harder for prosecutors to gain a conviction. This explains why prosecutors like Terry McEachern routinely strike the names of blacks and Latinos from the venire unless they have reason to believe they will be pro-prosecution. If you're looking for a high conviction rate this makes sense. If you're looking for justice . . .
DA 2/3s numbers below average 07-16-2006
The Herald Staff , From the Plainview Daily Herald
By RICHARD ORR
District Attorney Wally Hatch won 58 percent of the felony cases he took to trial during his first year as DA 21 points below the statewide conviction rate of 79 percent.
Hatch assumed office Jan. 1, 2005. According to a Herald summary of district clerk records, he lost 10 of the 24 cases he prosecuted before Hale County juries a 42 percent loss ratio. The summary does not include Swisher County cases.
Former DA Terry McEacher's record stood at 91 percent during his first year in office having won 10 of the 11 felony cases he tried, and beating the 1985-86 state rate of 81 percent.
McEachern served as county attorney in Swisher County prior to becoming district attorney in 1985. Hatch's prior experience primarily consisted of 14 years as city attorney. He's a Plainview native and a 1991 graduate of Texas Tech law school.
The 10 acquittals he sustained as DA included a forgery case, an arson trial and several DWIs. Some weren't slam dunks, he said. But I felt they should be tried in front of a jury and let the community decide if the defendant should go free.
During 2005, his office returned 422 indictments compared to a 5-year average of 385 during the period 2000-2004.
A good 75 to 80 percent of defendants plead out for probation, a sentence we feel comparable to what a jury would give, or a dismissal in return for a guilty plea in a related case, said Hatch.
Prosecutors across the state point to problems they've encountered with the motor-voter registration law, which was mandated by the Federal Voter Registration Act in the mid-1990s.
Designed to increase the number of registered voters, the law allows people to register to vote automatically when they get a drivers license and requires state judicial districts to summon prospective jurors from a list of drivers as well as voters.
Prior to the law, jury panels were drawn solely from registered-voter lists.
A mistrial was declared in an Andrews County capital murder case in late 1997 after it was learned a prospective juror had a felony drunk-driving conviction on his record and had served on the grand jury that indicted the 20-year-old defendant.
The idea (behind motor-voter) was good, a special prosecutor in the case was quoted as saying at the time. The more diversity you can get in your jury pool, the better.
But problems arise because felons and non-citizens who aren't allowed to vote are allowed to get drivers licenses, requiring prosecutors to more thoroughly check the backgrounds of potential jurors.
In an undated USA Today story, jury consultant Jo-Ellen Dimitrius who helped defense attorneys pick jurors in the O.J Simpson murder case said voter rolls generally reflect fewer minorities and basically contain people with a higher socio-economic level and more education.
We know that very typically, a pro-defense juror is most often from a lower socio-economic status and is more likely to be less educated, she said.
A new wrinkle facing prosecutors of late is known as the CSI Effect.
Jurors these days have very high expectations of the state, Hatch said. In terms of scientific evidence, for instance, they see unrealistic or untrue depictions on TV. It distorts even how evidence can be collected.
Recalling his move from city attorney to district attorney, Hatch said of McEachern: Terry was very helpful in the transition from his administration to mine. I certainly appreciated it.
Tuesday, July 25, 2006
Monday, July 24, 2006
Verdicts are supposed to reflect the juries' detemination of facts and truth. Generally witnesses testify and lawyers argue conflicting versions of what occurred. The jury must then sort through the evidence,testimony and arguements to determine the truth.
But the odd thing about cases where insanity is the defense is that both prosecutors and defense attorney generally agree about what happened.
In the Yates case there was no question about what happened at the Yates home when Andrea killed her children. Everyone agreed that Andrea had a very troubling history of severe mental illness and was delusional and psychotic shortly before and shortly after she killed her children.
Yet this jury has an exteremely difficult job to do. They have to make sense of a charge and laws that make no sense.
Their verdict is supposed to reflect whether they believe Andrea was too insane to know right from wrong when she killed her children. Whether they are supposed to base that decision on what Andrea thought was wrong according to the Texas Penal Code, God, the devil, the voices in her head or her own values will remain unclear.
The verdict from the first trial focused a national spotlight on the problems with Texas insanity laws. Countless attempts were made before and after that verdict by advocates in the criminal justice and mental health fields to change Texas laws.
The truth is that in cases where violence has occured juries are always going to be afraid to find a defendant not guilty by reason of insanity regardless of whether they believe the accused to be insane. There is fear that without adequate treatment and supervison, violent acts will be repeated. And there is no way to assure jurors that the person sitting in that courtroom will be supervised, treated or prevented from hurting anyone else.
Texas laws fall woefully short of assuring treatment options for it's mentally ill citizens in the free world or in the criminal justice system.
What frightens me the most is knowing how many other severely mentally ill persons there are in Texas who are not getting treatment. The Texas legislature has consistently cut funding to MHMR resulting in eliminating treatment options for thousands of mentally ill Texans. There are countless other tragedies of the magnitude of this case that could be prevented but will not be.
The Beans pulled into Tulia just as Sheriff Larry Stewart was arresting Tom Coleman on theft charges. A year later so many people had been arrested on Mr. Coleman's word that the Swisher County jail had to contract with lockups within a fifty mile radius to make room for all the black bodies.
The Coleman sting became a cause celebre in the local media. Mike Garrett, editor of the now defunct Tulia Sentinel, could hardly contain his enthusiasm. “The fact that our sting operation made big front-page headlines in the Amarillo Globe-News and on the Amarillo TV stations will hopefully show other Panhandle communities that we don’t like these scumbags doing business in our town. Now it’s up to the courts to vigorously prosecute the traffickers to the point where we won’t see them back on our streets for another 5 to 20 years if at all.”
“One of the local newspapers called the drug sting defendants “scumbags” this week," I told my Baptist Sunday school class a few days later. "I don't know any of these people, but shouldn't they be presumed innocent until they get their day in court?”
“Scumbags is exactly what they are,” a middle-aged man across the table from me growled. Molten rectitude smoldered in his eyes and his mouth was twisted in rage.
“It’s these athletes that really get me riled,” a local businessman confided privately when the class was over. “We play them up like they’re some kinda heroes just ‘cause they win a few football and basketball games, and they reckon they can get away with anything. Smoking dope, selling drugs to our kids, taking advantage of our girls—anything! You try to do everything you can for these people to help them pull themselves up by their own bootstraps, and they always disappoint you.”
Four months later Joe (Booty Wooty) Moore was sentenced to 90 years on Tom Coleman's uncorroborated word. Tulia's black community assured me that Moore had never "messed" with Larry Stewart's undercover man and I believed them. But if Joe Moore could get a virtual life sentence on the basis of Coleman-plus-nothing, one pointed finger could convict anybody.
Experience forced me to amend my thesis slightly. If you fit the Booty Wooty profile (poor, uneducated, black or brown) the state of Texas can get a conviction without real evidence of guilt. This realization turned a Baptist preacher into a carping activist.
The media treats Tulia like a vestige of America's Jim Crow past. But the problem isn't just Tulia and it isn't just Texas; move to the federal system and the horror stories proliferate. For the past two years I have been working with Ann Colomb and her family in Church Point, Louisiana. While Scott Henson rests from his prodigious labors I will tell you how these United States transformed an innocent mother of five into Tony Soprano.
Sunday, July 23, 2006
Dunagan was charged with capital murder, but as I pointed out before, he was really convicted for four reasons: 1) his criminal record from an incident when he was 18, 2) a setup by a lying jailhouse informant, 3) sloppy police work, and 4) ineffective trial representation by his defense attorney.
Three times during the trial, Ali's wife identified someone other than Dunagan as the killer. Observers believe that she picked out the only black man with green eyes she saw in the courtroom. All she saw of the killer was his eyes because he was wearing a bandanna over his face. Dunagan has black eyes.
Now, D Magazine has published a cover story titled, ""FRAMED FOR MURDER: GREG DUNAGAN DIDN'T DO IT." The article isn't online, but Sanders describes the story thusly:
What a grim tale! A federal magistrate judge ordered a new trial but the decision was overturned by the egregious 5th Circuit Court of Appeals. It's good to see the MSM picking up on the topic of unreliable informants, which account for more than half of wrongful convictions.
An in-depth investigation by writer Paul Kix quotes two witnesses, both inmates in a state prison, who knew the informant, Dave Spencer. Both have signed affidavits implicating Spencer himself in the slaying of Ali and the framing of Dunagan.
One of those witnesses said he overheard Spencer and another Dallas County Jail inmate planning to pin the crime on Dunagan. The witness said he was prepared to testify to that fact at Dunagan's trial, but he was never called. The other witness, a friend of Spencer's, said the informant told him one night that he had killed a convenience store operator in Grand Prairie.
"Some Pakistani guy," D quotes Quenten Jordan as saying.
"The store owner wouldn't get Spencer the money fast enough," Kix writes, adding this quote from Jordan: "Dave said, 'I had to kill him.'"
The magazine notes that Spencer denies ever making that statement. But these witnesses appear to have nothing to gain for implicating Spencer.
Between this case and the Dallas fake drug scandal, the Dallas County DA obviously needs to take a look at what his department is doing to make sure they aren't securing convictions based on fabricated snitch testimony.
Saturday, July 22, 2006
Defense attorney Brian Gallik of Bozeman said people have a "fundamental right" to expect that the government has not sent someone into their homes with an electronic monitor.Damn straight. At oral arguments, justices seemed especially concerned at the common use of this practice for extremely low-level crimes like pot possession:
In one case, Joseph Patrick Hamper pleaded guilty to drug charges after the Missouri River Drug Task Force recorded him twice selling $50 worth of marijuana to a confidential informant who had recorded conversations in the suspect's home.This case calls into question the crux of constitutional protections against unreasonable searches and seizures: If police can send a snitch into your home wearing a wire without a warrant, we basically don't have a functional Fourth Amendment anymore.
In the other, Michael Thaddeus Goetz, pleaded guilty to selling one gram of methamphetamine to a confidential informant, who wore a body wire-receiving device into Goetz's home.
"It is completely discretionary to the police," Justice James Nelson pointed out during an exchange with assistant attorney general Mark Mattioli. "Where am I wrong?" [...]
Justice Brian Morris wondered about the need to have wired informants on small crimes.
"Do we really need this type of intrusion in a $50 pot buy?" he asked.
Friday, July 21, 2006
Slampo meets up with Texas' new restrictions on pseudoephedrine, and wonders why pharmacists need his phone number to sell him cold tablets. I wonder that, too.
Also, read Tom at Houston's Clear Thinkers quoting the University of Houston's David Dow on why the focus on "innocence" in the death penalty debate is a "distraction."
Thursday, July 20, 2006
But what will happen to Grits during this long hiatus, the reading public cried? Where will we get our regular dose of commentary on Texas criminal justice? How will we bear the loss? Indeed, without this source of learned analysis, won't all of civilization simply crumble around our ears?, asked the worst of the doubters.
Don't fear - I've convinced four highly esteemed (by me anyway) and thoughtful writers who I think will more than adequately fill Grits' size 11-1/2 shoes. (Indeed, my main fear is that when I return the Grits-reading public will demand my ouster in favor of the superior content.) In any event, without further ado, let me briefly introduce your Grits guest bloggers for the next few weeks, and I'll be back to blogging by the end of August:
Galveston District Judge Susan Criss, a well-respected jurist who famously presided over the Robert Durst murder trial then ran into the defendant, supposedly under house arrest, shopping at Houston's Galleria. (Durst is a New York millionaire who beheaded his neighbor at his Galveston beach house before dumping the body in the bay). More significant than that infamous case, though, Judge Criss been a consistent voice advocating for services and improvements for dealing with mentally ill defendants in the criminal justice system. She's a smart, fair judge who's frankly someone I wouldn't mind seeing on an appellate court someday.
Marc Levin of the Texas Public Policy Foundation, a conservative, pro-free market think tank based in Austin. Marc works on criminal justice issues for TPPF and I've approvingly blogged about some of his work in the past. I offer readers the caveat that Marc was given blogging permission only on the condition that he run blog posts by his superiors, but he's been publishing some remarkable work on this topic and even within those restrictions I really value the chance for Grits readers to more fully see his perspective.
Isela Gutierrez works as an organizer for the Texas Coalition Adcovating Justice for Juveniles (pdf, that's TCAJJ, pronounced "T-Cage"). She's one of my favorites, and last year assisted me at ACLU of Texas for a while as a first-rate paper-trail researcher on drug war topics, wading through mountains of open records request responses from Texas drug task forces. Now she specializes more in juvenile justice where, to my mind, she's turned into a real up and coming thinker and advocate in Texas on those topics.
Rev. Alan Bean, was one of the original organizers of the group Tulia Friends of Justice who identified the injustice in the Tulia drug stings and stepped forward to speak out and publicize the convictions of innocent people there. He has since become a respected activist on this topic across Texas and beyond, working with local activists in Hearne, Palestine, and most recently in Lafayette, Louisiana.
So there you have it, an all-star team of Grits for Breakfast guest bloggers until I get back from vacation the week of August 21st. There's a chance I might slip in a missive from some Internet cafe in Mexico to say "Hola," but mostly I'm going to try not to think about blogs or the criminal justice system at all for a while. Maybe a couple more posts from me before I go, but otherwise for the next four weeks I'll be handing over the keys to these able writers.
Thanks for reading, and thanks to all of my wonderful guest bloggers for pinch-hitting while I'm taking a much-needed break. To my commenters I'd ask, "Be gentle." These are all good folks with interesting things to say, so give 'em a read. Until next time, Hasta la vista, baby.
Monday, July 17, 2006
The pragmatic ramifications of enacting draconian immigration laws, especially proposals that would make illegal entry to the United States a felony, would cause a stunning increase in court dockets and incarceration rates. If that law were passed and enforced, the number of people locked up in America, which already has the highest incarceration rate on earth, would make Stalinist Russia look like the Land of the Free by comparison.
An op-ed in the LA Times by criminal defense attorney Charles Linder shows the scope of the dilemma. By turning workers into criminals, we risk turning our already-overloaded criminal justice system into a bloated, out of control behemoth. The most absurd part is, America can't afford courts, jails, prisons and community supervision services now, so what will happen when all these new Border Patrol agents start making thousands more arrests? Wrote Linder:
U.S. District Judge Robert C. Brack puts it another way: "You can add Border Patrol agents, but if you do, you'd better think [downstream]. You'd better think marshals; you'd better think prosecutors, probation and pretrial services officers, defense lawyers, judges and clerk's staff — all of those things." ...Via Bender's Immigration Bulletin
Congress is reluctant to add to the supply of judges by appointing new ones because more judges mean more courthouses, more offices for federal prosecutors and public defenders, more marshals, more clerks and so on — and that is costly.
Most expensively, more illegal immigrant arrests and convictions mean more prisons and staff to run them. The federal Bureau of Prisons operates 106 facilities and 28 urban correction centers for pretrial detainees. It oversees 185,000 prisoners; its 2006 budget is $4.9 billion.
Consider this worst-case scenario: The immigration legislation passed by the House in December would make illegal presence in this country a felony. If just 1% of the estimated 11 million illegal immigrants were arrested and convicted under the proposed law, the Bureau of Prisons would be overwhelmed. In the last three years, it added more than 11,000 inmate beds. Imprisoning the new felons would require 110,000 more beds. ...
Tough talk on immigration is cheap. But the politicians who engage in it risk collapsing a judiciary system already overburdened with criminal cases. Creating more criminals hardly seems the answer.
Grits' friend Rev. Alan Bean of Tulia Friends of Justice reports on that group's website about the granting of a new trial by a federal judge in a high profile Louisiana drug case based largely on mendacious informant testimony. The judge declared he simply didn't believe shifting statements from the government's jailhouse snitch: "'I have not seen a person come up here and take the oath . . .' the Judge began, then took another run at it. 'He was the most uncredible witness I have seen in thirty years on the bench. This is an abomination.'" (See the local press coverage.)
An "abomination," and yet, prosecutors had been able to obtain a jury verdict of guilt "beyond a reasonable doubt."
As Prof. Natapoff suggests, there need to be ways for judges to evaluate informant testimony BEFORE it's heard by a jury. Based on a witness that shaky, this case never should have gotten this far. Great work, Alan, on the coverage.
Saturday, July 15, 2006
- Watch the full story of Hearne, Texas.
- Find out about the drug war's impact on youth.
- Read a report about the impact of drug policies on women and families.
- Take a look at the Drug War Clock.
- Check out John Fugelsang's comedy about the issues.
- Have you ever been unfairly targeted by our drug laws? Tell your story.
Sunday, July 09, 2006
Prof. Alexandra "Sasha" Natapoff of Loyola Law School in Los Angeles has posted on her faculty page a sample 11-page Motion Requesting Snitch Reliability Hearing (Word doc) in federal court. She also included the motion as an appendix in her upcoming article in the Golden Gate University Law Review. (See a draft version of "Beyond Unreliable: How Snitches Contribute to Wrongful Convictions.")
I consider Sasha Natapoff probably the premier thinker in America today regarding confidential informants - her 2004 article in the Cincinnatti Law Review, which I blogged about here, helped open my eyes for the first time to the depth and scope of how informant use has corrupted American law enforcement. And her December 2005 feature in Slate (which generously linked to a couple of Grits posts) helped popularize some of those ideas more broadly for the first time. I admire her work a lot.
It's ironic to me that when witnesses in civil court receive incentives for their testimony, they're called "experts." They're typically well paid and because that's a huge incentive to say whatever your client wants, detailed criteria have been established by which judges can determine whether a witness can reliably testify on the subject at hand. When witnesses in criminal cases receive incentives, however, they're called informants or "snitches" - they may be paid for their testimony or receive a more lenient sentence for their own crimes, but either way there are far fewer criteria for determining if they're reliable, even though they're arguably more likely to lie.
Right now, outside of undercover drug cases, informant testimony in Texas doesn't have to be corroborated and there is no procedure or standard for determining in state court whether a government snitch is reliable. Natapoff's motion gives attorneys an example of how to request such hearings in federal court. Defendants need the same ability to weed out unreliable informants in state court, too, but that could require changing state law.
Explicating the report Grits linked to here, the Monitor reports ("Fewer jail days given for misdemeanor charges, says study," July 9):
The report says the average days from arrest to dismissal of a misdemeanor case was 32.6 days for the two-year period ending in January. Gonzalez says that since January his office has been able to on average process cases in 16.6 days. ...At $40 per day, reducing by half the average time misdemeanor defendants sit in jail awaiting trial saves a big chunk of change, especially at a big jail like in Hidalgo County. Creating a public defender office is one of several promising initatives being tried by Texas counties to reduce jail overcrowding without building more jail cells. These results argue it's one that should be replicated.
If his office continues to reduce the time a defendant spends in jail, [Gonzalez] hopes he can convince the county to let him take on bond-reduction hearings for felony cases. Those hearings, according to the report, do not happen enough in the county and often bond is set way too high. The higher the bond the less likely that an indigent client can pay his way out of jail, leading to overcrowded jails.
See these related Grits posts:
- Grits' best practices to reduce county jail overcrowding
- Bail policies juice Tarrant jail overcrowding
- Does Tarrant County need a public defender?
- Why are Texas county jails overcrowded? Pretrial detention
- New Austin PD office will represent mentally ill
- Tyler's alternatives to jail overcrowding
- "Cite and summons" for small offenses would reduce jail overcrowding
Via Kuff, the Houston Press' Keith Plocek has an excellent article in its July 6 issue about the Texas Department of Public Safety's crappy criminal background check database you can search for $3 bucks on the web - huge chunks of data are missing and what's in there is unaudited, not to mention frequently incomplete or erroneous. I encourage you to read the whole thing. Plocek called me for the story because of a blog post I wrote in February, and Kuff points out I was afforded a couple of pithy quotes in the piece:
"The database is corrupt and a piece of garbage," says Scott Henson, a political consultant in Austin. "The thing has just turned into its own animal."Using the public information act, Plocek found terrific case studies where the crappy database falsely accused people who shouldn't have been excluded from jobs while failing to identify those who might pose a real danger. The example in his lede drives home the point: A girls softball coach vetting potential assistant coaches finds a conviction on one applicant and none on another. Problem is, the "conviction" was erroneously reported in DPS' database, while the "clean" applicant had earlier received prbation for stealing a video camera and using it to film adolescent girls through windows.
"People need to be able to get jobs at some point," says Scott Henson, whose blog, Grits for Breakfast, deals exclusively with the Texas criminal justice system. "Would you prefer they robbed your house?"
Amazing - in this case, using DPS' background check system led to a decision that arguably made these girls less safe.
Many counties report less than half their convictions to DPS - they've been required by law to do it since 1993, but no resources are available to support this unfunded mandate. There's no auditing system in place for catching errors - whatever counties report is what's in the database with no adjustments. And in many instances, folks are included who shouldn't be there at all. Cases ending in deferred adjudication, for example, which should result in clearing a defendant's record, are reported side-by-side along with regular convictions.
To make matters worse, this bad info then gets purchased by commercial databrokers, and once the information makes it to that arena, it's nearly impossible to 100% correct.
This scenario begs for use of the word "boondoggle." DPS' database is not fulfilling the purpose it's designed for, causing problems no one ever intended, and costing state and county taxpayers a small fortune for a bad product. Regular readers know I think WAY too many jobs are restricted for ex-cons, anyway, but the problem gets worse with this kind of Kafka-esque record-keeping system. They should spend what it takes to fix it or scrap it, but it's doing as much harm as good right now.
Friday, July 07, 2006
It's possible the decline stems from more people exercising their right to refuse searches when confronted with a written document. It may also be that officers are less likely to request unnecessary searches when documentation will be kept. Either way, since officers don't find contraband in 88% of searches, the new policy frees up a lot of officer hours for more productive crimefighting pursuits.See the form APD uses for permission to search, obtained last year by the Texas Criminal Justice Coalition under a public information act request. If could add one thing, I wish there was a line for the officer to explain the reason a search was requested.
UPDATE: Via CrimProf Blog, the sister of Carlos de Luna, a man who was executed by the state of Texas for a crime the Chicago Tribune says he didn't commit, joined death penalty opponents in Houston recently to call for a statewide innocence commission to examine why innocent people end up on death row. I think the focus of an "innocence commission" should be broader: Why do innocent people end up in prison? Period. No need to narrow the subject - the same reliability problems that plague capital cases such as lying informants and biased forensic lab results also affect non-capital cases.
Thursday, July 06, 2006
Huevos Rancheros continues with the breakfast-themed name, but with a broader focus. I'm not sure what will go on here - upcoming vacation photos from Mexico, perhaps, or thoughts on movies, plays, books, etc. - who knows? Most of the political stuff will still wind up on Grits, I imagine, and I feel under no obligation to update this site nearly so frequently. I'm creating this just for grins, because some days the things I want to write don't fit into any of the narrow categories in which the world seems to request my input.The top post at the moment is a musing on vacation planning (God I need one). So read it, if you've a mind, or if you're just here at Grits for criminal justice news and politics, I won't blame anybody for not following HR. It's an odd combination, anyway, for the same palate to favor grits and huevos rancheros, I suppose a sign of the times.
Sometimes you read short accounts in the paper of drug asset seizures that just don't pass the smell test - the reader has no evidence to dispute the cursory account, but something just sounds fishy. For example, a traffic stop in the Texas Panhandle last week resulted in seizure of more than $32,000 in cash, reported the Amarillo Globe News:
Troopers pulled over a Pontiac sedan for speeding about 5:30 p.m. Friday, reports show.
The driver consented to a search, and a drug dog found more than $32,800 arranged in bundles and stuffed in the trunk of the car. A drug dog alerting to cash suggests that drugs may have been in contact with the money at some time, according to DPS.
Several things strike me as odd about this story. First, why would someone allegedly ferrying drug money consent to a search? It's always hard under those circumstances to imagine the driver didn't feel coerced, even though consent is supposed to be voluntary. Another puzzler: the trooper already had permission to search. He didn't need probable cause, so why bring in a drug sniffing dog?
Finally, since when do dogs alert on money instead of drugs? I'm reminded of Justice John Paul Stevens' opinion in the Caballes case allowing trained dogs to sniff for drugs at traffic stops. One of the reasons he justified such searches was that the dogs were only trained to find drugs, which were illegal contraband, not money or other legal items. How is it, then, that this hound is trained to find money?
The Globe-News offered this justification: "A drug dog alerting to cash suggests that drugs may have been in contact with the money at some time, according to DPS." Of course, a large percentage of currency in circulation has come into contact with drugs.
The standard for seizing cash in civil court is lower than the standard to convict the driver of a crime. A lot will depend on what the motorist said to the trooper. Since dog alerts don't provide probable cause by themselves for currency, law enforcement must compile other evidence (like inconsistent stories from the driver) in order to make their case.
Like I said, I have no evidence to dispute it and have no knowledge of this case, but the account in the Globe News doesn't make sense to me. Perhaps the dog was brought in under less than consensual circumstances, to make a bad search seem justifiable? In any case, something's missing from this account. Hope the trooper had audio/video in the car.
Wednesday, July 05, 2006
The Texas Commission on Jail Standards gave the Nueces jail a failing grade after a surprise inspection last week, reported the Corpus Christi Caller-Times ("US Marshals: Jail failed surprise inspection," June 30).
Problems found by the US Marshals Service's inspection in June were documented in these photos.State inspectors gave Sheriff Rebecca Stutts a timeframe to fix problems and said they understood why federal prisoners were removed, according to [federal] marshals. ...
The state conducted the surprise annual inspection about two weeks after the U.S. Marshals’ Service pulled 55 federal prisoners from the Nueces County Jail because federal inspections found questionable living conditions. [The agency] has said the jail was due for an annual inspection because the last one was conducted Aug. 11, 2005.
UPDATE: The Caller Times has more on the jail inspection which documented similar problems to those cited last month by federal marshals.
Tuesday, July 04, 2006
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Monday, July 03, 2006
It’s impossible to budget for an expense if you don’t know the price.I'm glad to hear of somebody in Texas focused on one of the real, actual security risks surrounding illegal immigration as opposed to all the bogeymen: lack of verifiable identification. The state wouldn't need to create any new bureaucracy to implement Garcia's idea - it could easily happen using the state drivers license and ID card system. (If Texas allowed undocumented immigrants to get drivers licenses, I'll bet the vast majority would do it in a heartbeat. Overnight that'd solve much of the state's uninsured motorist problem.)
That’s the concept Buddy Garcia — the Texas deputy secretary of state and Republican Gov. Rick Perry’s adviser on border issues — thinks is lost in the boisterous national debate over how to reform immigration policy.
First and foremost, everyone illegally here should be required to register with the government, he said. Every person would be fingerprinted, receive an identification number and be placed in a database accessible to all levels of government so leaders can approve budgets with an idea of how much money they must set aside for social services.
Garcia brought up his idea during a recent interview discussing border affairs.
“There isn’t enough attention, I think, on the idea that if you’re going to change anything, the emphasis needs to be on some form of verifiable ID,” Garcia said.
Registering alone would not give anyone legal status or put them on a track to legal status.
Garcia did not address whether the U.S. Border Patrol or Immigration and Naturalization Service would use the database for their purposes.
But he said an identification program would provide a foundation for other initiatives Congress might consider in the future, such as guest-worker programs, and it would help legislators at all levels accurately budget their social service programs.
He didn't quite get there, but Garcia's comments came close to addressing what I consider perhaps the biggest security risk posed by the failure to allow immigrants legal, documented paths to entry - the inability to manage large urban populations during a disaster, particularly a bioterrorism event. I don't lay awake nights fearing Al Quaeda will attack with bioterror weapons, but the threat of accidental release is significant, and if it happened, the inability to document who lives where could create massive problems. I wrote about this not long ago in the comments to a post on the blog Patriotic Rants:
I've spent a great deal of time thinking about specific bioterrorism risks as an appointed member of Texas' Bioterrorism Preparedness Coordinating Committee, and speaking only for myself I don't believe there's a significant threat of Al Quaeda successfully weaponizing biological weapons to attack the US. It's really not the poor man's WMD - to weaponize germs is a sophisticated process.A bioterror event would be the worst case scenario, and a relatively unlikely one - it wouldn't be Al Quaeda but probably an accident at one of the BSL 4 labs in San Antonio or Galveston, or else accidentally importing an infected chimp. (In 1996, two macaques infected with the deadly Ebola virus were famously discovered at a primate import facility in South Texas.) Still, one can imagine many homeland security scenarios would be exacerbated by the fact that Texas has 1.4 million people living here without the vaguest hint where to find them.
A bigger threat, IMO, are the growing number of BSL-3 and BSL-4 labs at military and university research centers where we're already weaponizing and testing bioweapons. Those are already here, are accessible to grad students, and the bioagents are typically transported (even government military samples) by commercial Fed Ex shipping. We had a professor from Texas Tech convicted of smuggling bubonic plague samples aboard airplanes using the still-too-common "VIP" method - Vial In Pocket. If I remember right, I think that guy's still in a federal prison.
A related concern I have that affects both Texas and California is how to effectively enforce a quarantine or evacuation when so many illegal immigrants aren't registered in any way with the government. The solution is to let them get drivers licenses or some other form of official ID card so we'll know who lives where during crunch time, but a lot of people oppose that idea for other, non-public safety related reasons.
You tell me, what's more important? Protecting the public from infectious disease in a bioterrorism event, or "sending a message" to immigrants that they're not welcome?
I wish Mr. Garcia luck implementing his idea - convincing Governor Perry would be a good start.
Blogger makes connection: Failure to fund mental health services precipitates bulging prison population
Kudos to Greg for making the link. The various estimates I hear for the number of mentally ill inmates in Texas prisons range from 16% to 22% or so, depending on who is estimating and what they're counting, and nearly every such statistic you see includes a caveat that mental illness likely is underreported, as is the case with society at large.
County jails have it just as bad: Because of the issues reported by Ms. Ball, today they're required to house mentally ill inmates for months waiting for beds in state mental hospitals to open up - all before the defendant has even been tried.
Bottom line: Texas' failure to invest in indigent mental health services on the front end accounts for a big portion of today's prison overcrowding pressures. At this juncture, additional budget cuts for mental health would cost the state MORE, even in the short run, while burdening society with devastating, avoidable social costs down the line.
As I've said before, what's frequently missing in this debate, and in these articles, is a distinction between criminal informants or "snitches" and plain old garden variety witnesses. To me, that distinction is the witnesses' incentive to assist law enforcement. When a witness reports a crime, it's because they want justice in the case, or perhaps because they are compelled by subpoena, etc. When a criminal becomes an informant and receives leniency in exchange for information, or when someone in the underworld becomes a professional, paid informant and makes a living off the enterprise, that's a different kettle of fish entirely. Such testimony is more likely to be unreliable and self-interested, and deserves closer scrutiny.
The arguments become especially confusing because criminals and law enforcement have a mutual interest in confusing criminal informants and witnesses. Crooks want all witnesses to go away, not just those who've committed crimes, while police would prefer that the public not examine their informant practices too closely, preferring to conflate the crooks who provide often-questionable testimony with Grandma calling in a burglary.
It's easy to understand why police don't want "snitch" defined more narrowly than just a synonym for "witness" - often today's informant practices aren't a pretty sight viewed from up close. Take the immediate example of the Dallas fake drug scandal, fallout from which continues to envelope the Dallas Police Department. In that case a crooked cop, Mark Delapaz teamed up with lying infomants to frame dozens of innocent people with fake drugs ("Delapaz gets two 5-year terms in fake drug case," Dallas Morning News, June 30). Last week Delapaz was convicted of stealing money and falsifying documents. Reported the News:
Prosecutors charged that Mr. Delapaz, 37, was motivated to steal money because he had $60,000 in credit card debt and presented evidence that he forged paperwork and skimmed some of the more than $400,000 in police money that passed through his hands in 2001.
"This trial was especially important because we finally in an open courtroom got to have the evidence of theft and forgery," prosecutor Toby Shook said.
Witnesses testified that even after Mr. Delapaz received several warnings that some of his large drug seizures did not contain real drugs, he defied orders by two supervisors and continued using a discredited informant.
In the weeks before an investigation mounted and he was placed on desk duty, Mr. Delapaz's work became erratic, testimony indicated. In October and November 2001, Mr. Delapaz checked out more than $46,000 in police money to make drug deals, but never made any arrests and arranged to have the large quantities of drugs he purchased immediately destroyed, according to court testimony.
Mr. Shook told jurors in closing arguments that Mr. Delapaz ordered the evidence destroyed because he knew at that point that the drugs were fake but wanted to keep stealing money.
At the same time, Mr. Delapaz did not alert his superiors or prosecutors when he learned that lab tests had come back negative on one large seizure, causing an innocent man to stay in jail several months longer, Mr. Shook said.
Funny how Delapaz was sentenced in Dallas last week, but a Sunday article on "snitching" never mentioned how badly informants have been misused by Dallas police. That's emblematic of the problem with criticizing wholesale such "Stop Snitching" sentiments - it ignores the extent to which the system of informant use in the criminal justice system has become corrupt, problematic and crime-producing in its own right. Plus it minimizes legitimate values of loyalty, trustworthiness and reliability that many Americans think are important.
One needn't embrace the "stop snitching" meme nor justify attacks on witnesses to see that the use of informants by law enforcement needs reform. As the Dallas News article shows, criticisms of snitching have hit a nerve with portions of the public most likely to be targeted by police - youth and minorities. Those themes tap into deep, legitimate anger that likely can't be assuaged with tough on crime platitudes. To be credible to those communities, law enforcment officials who criticize the t-shirts and websites must be accountable for improving their own bad practices.
I've suggested in the past a number of topline reform proposals that should be part of the discussion, but which were never mentioned in either the News or Post articles. Here's a sampling compiled from a variety of sources, or see Grits' entire ouevre on informants:
- Corroboration: In the Bible, both Mosaic Law and New Testament writings demand that no one be judged guilty of a crime on the uncorroborated testimony of a single witness. Without going that far (though I'm willing if the Legislature is), it makes real sense to require corroboration for all testimony by witnesses who receive incentives, especially cash or reduced sentences for their own crimes. (After innocent people were framed in drug stings in Tulia and Hearne, the Texas Legislature in 2001 enacted a requirement for corroborating informant testimony in drug cases.)
- Reliability hearings: In civil cases, judges decide in reliability hearings whether expert witnesses with long lists of credentials may testify as experts. New statutes should require similar pretrial reliability hearings to ensure a judge deems an informant credible before a jury hears their testimony.
- Supervisory controls: All conversations between police and informants should be recorded. Alternatively, officers should only interview informants in pairs. Informants who will be used on more than one case should be interviewed by a supervisor, and more detailed statistical and other documentation about informants and their activities should be required. More supervisory check-offs on payments to confidential informants is needed, and payments above a de minimus amount should only be made in the presence of supervisors. These ideas could all be implemented administratively at the department level without changing the law.
- Right to counsel: Informant agreements are essentially informal plea bargains. Informants whose culpability for their own crimes will be reduced or prosecution avoided should routinely be afforded a right to an attorney before entering into a "snitch" agreement, just as though they'd been charged with a crime. These "contracts" are generally one-sided and may even obligate informants to commit crimes in which they wouldn't otherwise engage.
Sunday, July 02, 2006
Maybe y'all can give her some love: Kathy was sad to get a site meter report showing a tick or two above zero readership after not posting for several months, so go check out her blog and let her know folks will read if she'll keep writing. With all the political blogs out there, I'm surprised there's not more people writing on this particular niche topic, but it appears to be a pretty small field.
Her big issue of the week: New software installed by some members of Congress to keep grassroots internet advocacy groups from forwarding constituent email from action alert systems to their elected representatives. (Two Texans, Michael McCaul and John "I don't think we have racial bias in Texas" Carter, are using the blocking software.) Consumers Union and more than 100 other groups have come together under the coalition banner Don't Block My Voice to demand that Congress continue to accept citizen email. Check it out and sign their petition to Congress.
Saturday, July 01, 2006
- Juvie system a revolving door for guards, kids. Via Rep. Pena, The Texas Observer had an good article on the Evins juvenile detention facility in Edinburg. "Every year three out of four TYC guards leave the agency. Personnel turnover creates its own chaos as guards in understaffed facilities have to work overtime—sometimes back-to-back 12-hour shifts," reported Emily Pyle.
- Texas drug war aimed at blacks. On the ACLU of Texas' Liberty Blog, Prison and Jail Project Director Nicole Porter documented in a Juneteenth post how the drug war has focused on blacks in Texas. Funny, didn't I just hear that Texas doesn't discriminate anymore?
- Jail is punishment, but it shouldn't kill you. Another Liberty Blog post by Porter reports health data from the Bexar County Jail acquired through an open records request.
- Too much focus on death? Doc Berman makes the case why less emphasis should be placed by reformers on death penalty cases. Though I personally oppose the death penalty, I actually agree with most of this. Dan Filler thinks the emphasis is justified, but agrees the death penalty debate shouldn't "use up all the oxygen" in the reform debate.
- Are wrongful convictions more likely for murder? Berman and Filler also had an interesting discussion regarding wrongful convictions where I chimed in with comments. Filler and several Supreme Court justices in Kansas v. Marsh believe wrongful convictions happen more often in capital cases, while Berman thinks they're a bigger problem in routine cases because of the plea bargain system. For my money, as I said in the comments to Filler's post, wrongful convictions are probably most common in drug cases because of the widespread use of informants, but I do think the pressure to convict in murder cases makes that a special situation, too.
- The Need for Speed: Houston and Austin made the list for the nation's top ten speed traps, reports Kuff. Houston was 5th, Austin 7th. That may be true per volume, but there are some small East Texas towns with cops making their paychecks off their speedguns, I'm willing to bet. For example, Brownsboro is a bigger speed trap than either of the bigger cities, IMO. State highway 79 is littered with them.
- Upon closer inspection. South Texas Chisme reports that the Nueces County Jail failed another inspection by the US Marshall's service. I'd linked to pictures from the jail the other day.