Maybe FLDS just drew a really bad judge: Walther spitefully delays sending YFZ kids home

Is San Angelo District Judge Barbara Walther the worst judge in Texas?

There are many jurists competing for that lowly dishonor, but I'm beginning to wonder if Walther's name shouldn't be placed on the short list for discussion. After her petulant display in the courtroom yesterday, it's increasingly clear the judge has taken rebukes by higher courts personally and begun to behave like a pouting 9-year old. Here's how the San Angelo paper described yesterday's events:

A proposed order, which seemingly was approved by CPS and attorneys representing the families, was introduced at the beginning of the hearing that states the department would begin returning the children at 8 a.m. Monday.

The proposal also stipulated the parents would undergo parent counseling and cooperate with the ongoing investigation, and that the parents wouldn't leave the state, at least until Aug. 31.

Technically the order was for just the mothers in the original appeal, but the implications were for all children, Walther said.

Walther took a break and countered with a proposal that put more restrictions on travel and other stipulations.

Her proposal gave the same time frame for releasing the children. However, it also said that if children were to travel more than 60 miles from their designated residence, the CPS must be given at least 48 hours' notice.

It also said case workers should have access to the ranch at "any and all times necessary to the investigators."

As well, it states case workers could interview and examine the children, which could include medical, psychological or psychiatric examinations.

Lawyers for sect members objected to the new proposal, saying it wasn't what they had originally agreed to, and that the court has no authority to impose those stipulations because there is no evidence those sect members broke any laws.

Walther countered that the Texas Supreme Court ruled that the court can put conditions on reunification to keep the children safe.

The Supreme Court ruling seemed to indicate Walther has some latitude to order parents to refrain from removing their children "beyond a geographical area identified by the court" while a thorough investigation continues.

Lawyers argued it does not give her the authority to allow some of the conditions she put in her version of the proposed agreement.

Walther eventually ruled that if each parent signed the agreed-upon ruling, then the court would sign it as well. ...

Laura Shockley, an attorney representing a mother and several children, said attorneys are usually allowed to sign such orders for their clients.

"The effect is that all children will be unlawfully detained for at least 48 hours and probably more," she said.

Andrea Sloan, an attorney who represents several disputed minors, said many mothers are scattered across the state near their children, and reaching them so they can sign the order will put a further strain on attorneys and the families.

Still, she said she is confident in the court system of Texas to get the children home.

Jessop was incensed that Walther didn't sign the order and wanted clarification.

"The judge left the court in total disarray," Jessop said. "There is no way to know when relief will be here to fix what happened on April 3. It's total confusion."

So bottom line, Walther demanded MORE restrictions on families than CPS had agreed to, injecting herself as a party in the dispute rather than an arbitrator. After hours of wrangling, the judge backed off her demand that FLDS parents agree to extra stipulations, but insisted that each FLDS mother sign the agreement instead of their attorneys, just to inconvenience them and make their lives more difficult. Then she stormed out without explanation, leaving attorneys to guess what she meant.

That said, by all accounts, before her abrupt exit, Walthers backed off on the extra requirements and consented to sign the agreement between CPS and parents if they all put their signatures on it. While FLDS could take this to the 3rd Court, their interests might be better served simply by hustling everybody back home and getting them to sign the damned document. If the Judge flip flops again, there's plenty of time to appeal to the 3rd Court. I'd guess that, at this point, the subsequent bench slap wouldn't be long in coming.

There's no justification I can see for Walther's ill-tempered departure nor the arbitrary delay it created - at least none except spite and mean-spiritedness. It's as though she doesn't realize that her actions are playing out on an international stage, that she's in danger of having her name transformed into a verb, like Duke lacrosse prosecutor Mike Nifong, where people whose children have been seized without cause have been "Walthered."

With yesterday's decidedly un-judicial display, Judge Walther disgraced her robes and embarrassed her constituents. Her actions displayed the same brand of disrespect for the law and parents' rights - in the 3rd Court's words, the same "abuse" of her "discretion" - that caused her earlier rulings to get shot down

Judge Walther deserves a lion's share of blame for everything that's gone wrong during this fiasco.

First arrest made involving fraudulent Ex-Im Bank loans; Did money lent to boost trade wind up in hands of drug cartels?

Somehow I'd missed that the first arrest has been made in Texas regarding fraudulent Ex-Im Bank loans. Byron Harris at WFAA TV in Dallas in December reported that the federal agency gave loans to figures associated with Mexican drug cartels that were never repaid, but until now no arrests had been made. Here's a report from The Financial:

On May 1, 2008, the United States Attorney for the Western District of Texas (USAO) announced the arrest of Andrew M. Parker, owner of San Antonio Trade Group, Inc., on conspiracy, wire fraud, money laundering, false statements and tax charges.

The Bank said an indictment returned this week by a federal grand jury sitting in San Antonio, Tex. alleges that from February 2003 to November 2006, Parker schemed to defraud the Export-Import Bank of the United States (Ex-Im Bank) by stealing millions of dollars in loan proceeds obtained by Mexican business owners from private U.S. lenders and causing multi-million dollar losses to Ex-Im Bank, which guaranteed or insured those loans based on false applications and supporting documentation submitted by Parker. The indictment also charges Parker with defrauding lenders in transactions not insured or guaranteed by Ex-Im Bank.

The information which started the investigation was provided by Ex-Im Bank. Ex-Im Bank will continue to work closely with law enforcement authorities to combat attempts to steal from the taxpayer.

See also the press release from the US Attorney on the arrest (pdf). It's impossible to tell from available information whether this is one of the individuals identified by WFAA, but I'm glad to see the US Attorney investigating fraudulent loans by Ex-Im Bank. It's clear they're not willing to effectively police themselves.

I've long contended on Grits that money spent cleaning up corruption, whether among police or in the financial sector, generates much greater marginal return (i.e., a "bigger bang for the buck") in the short term than just spending money on guns and overtime. If Byron Harris' report was accurate, there's still more to do. WFAA alleged multiple loan recipients with connections to multiple, competing cartels received loans totaling $243 million, so one hopes this arrest marks the first volley by the US Attorney, not the last.

RELATED: From the SA Express News:

• SA exporter indicted for fraud
• Indicted Texas exporter tied to woman at bilked bank
• High roller will remain in jail

See also prior, related Grits posts:

• Who are the big American drug bosses? How about the Ex-Im Bank?
• Voluntary guidelines don't ensure Ex-Im Bank won't give more loans to drug cartels
• New Ex-Im Bank guidelines won't prevent loans to drug cartels
• Ex-Im Bank stonewalling media on weak, new anti-corruption guidelines
• Ex-Im Bank scandal looks like tip of corruption iceberg

For the sake of accuracy ...

The Texas Department of Protective and Family Services has adopted a new motto on its logo. However, given the agency's behavior during the Great Eldorado Polygamist Roundup, the new slogan seemed both cliched and inaccurate, so I took a stab at improving it for them:

Whaddya think?

Also why do readers think that conservative bloggers tend to oppose the Great Eldorado Polygamist Roundup, while liberal bloggers seem more likely to support it?

Galveston, Brazoria police react wisely by dismissing cases after evidence room thefts

After the Tulia drug stings I began watching Texas' network of drug task forces, which Gov. Perry ultimately abolished in 2006, and a recurring theme in corruption cases involved lax standards and procedures allowing thefts from evidence rooms.

Though the task forces are gone now, the same problem cropped up in two recent cases in Southeast Texas where officials alleged police personnel stole cash or drugs. According to the Houston Chronicle ("2 area police departments hit by turmoil," May 30):

Criminal cases are being dismissed, a police detective has resigned and a former clerk has been indicted as police departments in two Houston-area communities deal with the disappearance of evidence, including drugs.

In the Brazoria County town of West Columbia, a detective quit the force after he couldn't comply with the chief's request that he produce cocaine that was held in evidence.

In Galveston, a grand jury has indicted a former clerk on a charge of stealing evidence from the Galveston police property room, causing the dismissal of 18 criminal cases.

The Galveston County grand jury Wednesday indicted former property room clerk Heidi Aline Domino, 27, of Texas City, on a charge of theft by a public servant, a felony punishable by up to 10 years in prison. If convicted, she would face a minimum sentence of two years in prison.

The investigation that led to Domino's indictment began after an undisclosed amount of cash was discovered missing from the property room in February.

The Sheriff's Office began an investigation, and Galveston County District Attorney Kurt Sistrunk asked the Texas Rangers to take it over.

The investigation uncovered missing cash, drugs and weapons held as evidence in the property room, leading to the dismissal of 18 criminal cases.

Seven of the dismissed cases were felonies, six for drug possession and one for sale of cocaine near a school. The remainder were misdemeanor drug and gambling violations.

The dismissal of the cases led Sistrunk to ask the Texas Rangers to conduct an audit of the property room in addition to the criminal investigation.

Officials also are dismissing seven to 10 drug cases investigated by a West Columbia police detective who resigned after being asked to produce some missing cocaine.

Joe McElroy, who had worked for the Brazoria County town's department since October, resigned May 20, chief Michael Palmer said Thursday.

Palmer said all the cases McElroy handled individually will be dismissed. "I don't want to erroneously put anybody in jail," the chief said.

Officials in Galveston and Brazoria County deserve extra credit in my book for their decision to drop low-level drug case that relied missing evidence or tainted officer testimony, particularly with so many exonerations peppering recent headlines. Why risk convicting an innocent person?

If authorities in Tulia had reacted that way when they first found out undercover officer Tom Coleman was an alleged thief at his prior police job (a subject revealed when an arrest warrant popped up for him in the middle of the investigation), the state of Texas could have been avoided that expensive and embarrassing public lesson.

Gas prices driving TDCJ to consider regional release of prisoners

With gas at $4 per gallon, the idea of releasing Texas prisoners from their own facilities or "regional release centers" instead of driving them all back to Huntsville is picking up steam, reports the Austin Statesman ("Texas considers regional prison release plan," May 30):

For years, most Texas prisoners have been taken to Huntsville when they complete their sentences before being discharged.

But now, officials are quietly considering a plan to begin releasing them at regional prisons, a historic policy shift that could save money and thousands of miles of crisscrossing bus rides across the Lone Star State.

At a time when fuel prices are squeezing the state budget, officials at the prisons agency concede the change could save big money. Officials so far haven't estimated the potential savings, but the Texas Department of Criminal Justice has budgeted $11 million for fuel for fiscal year 2008, and officials already expect they'll spend at least $16 million.

"No decisions have been made, but yes, we are looking at that concept," said Michelle Lyons, spokeswoman for the department. "The idea is that, by using regional release centers, it would be a way to release them closer to their final destination."

Under current policy, most freedom-bound convicts travel by prison bus to the vintage, high-walled Huntsville Unit — the state's oldest prison — where they are processed out and given $100 and a voucher good for a bus ride to anywhere in Texas.

Many go to nearby Houston, in what at times has been a controversial policy when recent releases commit new crimes.

"Taking everybody back to Huntsville to release them is one of the nuttiest policies I've ever heard of, and one that I've been trying to change for years and years," said Sen. John Whitmire, D-Houston, chairman of the Criminal Justice Committee.

A switch to regional releases has been proposed several times in the past two decades, to save money and increase operational efficiency of the prison system. But each time, it has been derailed for all but just a limited number of convicts, out of concern that prisoners need to be eyeballed with their records, including their mugshots, in Huntsville to make sure no one is mistakenly released. There have also been behind-the-scenes protests from local officials who would rather the ex-cons go live someplace else rather than return home or get released in their community.

Several years ago, women, state jail "confines" — generally lower-level criminals — and prisoners in some drug treatment and rehab programs started getting released at their lockups, rather than solely in Huntsville, Lyons said.

But of the 41,808 convicts who were released between September 2006 and August 2007, 33,655 gained their freedom in Huntsville, state statistics show. On average, 448 convicts per week are released there, according to Lyons.

Under the proposal, prison officials said the Robertson Unit in Abilene could be used as a discharge point for convicts from West Texas. If the program proves successful, prisons in other regions could also begin discharging convicts.

The reason they're considering the idea is purely economic, hoping to defray high gasoline costs. But I particularly like the idea of creating regional release centers if they could be used to coordinate and deliver re-entry services, not only to make sure they're releasing the right person.

Next steps, remaining questions in Great Eldorado Polygamist Roundup

Wow! The Texas Supreme Court's ruling that the Great Eldorado Polygamist Roundup was unjustified dramatically changes the terms of debate regarding the largest child removal case in US history.

Let's ponder a few implications of this ruling for the near and long term.

For starters, of course, the ruling means FLDS kids should be allowed to go home soon. It will be telling to see, though, if the court and CPS act with the same alacrity and disdain for detail with which they first seized the kids. My guess is that we'll see a bit more legal wrangling before that happens, mostly because of language in the opinion cited by an anonymous commenter in the last post, who added this spot-on observation, citing the next to last paragraph in the SCOTX ruling which states:

"While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR proceedings.”

Essentially, the SC puts the ball back into district judge Walthers’ court —to do as she pleases ordering ‘other appropriate relief to protect the children’ in the way of SAPCR orders (court orders on custody/parentage, etc.) And, especially, the Supreme Court particularly traps those mothers who ‘concede’–’admit’–likely being those who signed the coerced CPS ‘Plans’ – admitting they were abusive by clauses contained therein.

The best positive from the SC’s decision is it nearly forces Walthers to deal with each family individually. However, the bad news is the SC turned the whole ‘vacate the order’ over to Walthers, again,—but, qualifying that by telling her she can use other ‘appropriate protective’ measures.

That seems likely to me, which would mean there's a lot more lawyering yet to come. By all accounts Judge Walthers has behaved defiantly in the wake of the Third Court's ruling, hoping to justify her decisions instead of accepting that they were wrong. I don't expect that to change soon.

But there's another implication to this development that I find amusing and ironic. Texas CPS argued to the Supreme Court that the main reasons they couldn't return kids to their families were that they couldn't identify their parentage (despite the fact that they'd matched kids to parents in court and they didn't bother matching kids with parents when they seized them), and that if CPS released the kids, their families constituted a flight risk.

As a result, FLDS women's attorneys argued that the court had authority to use less punitive means to restrict families from leaving the jurisdiction, and the Supremes agreed; that's what gives Judge Walther the extra leverage mentioned above.

However, for the locals like Sheriff Doran and Judge Walther, IMO the real purpose of the raid was never to investigate child abuse but to run the YFZ Ranch residents flat out of the region. (This goal has frequently been openly discussed, including suggestions that the entire ranch's assets be seized to pay for CPS' boondoggle.)

After the women and kids were all gone, media accounts described the YFZ Ranch as nearly a "ghost town." But now a court order and CPS restrictions will REQUIRE them to stay in one place instead of going back to Arizona, etc.. Probably, even more sect members will join them, since these folks can't leave and the only FLDS temple is at the ranch. With FLDS recently ordering hundreds of voter registration cards, and court proceedings possibly stretching on for years, I predict the ruling virtually guarantees a huge FLDS voting bloc will henceforth act in Schleicher County to oust the politicians who sponsored this mess.

In other words, the raid likely has facilitated the future takeover of this West Texas community that locals had feared but which heretofore never actually occurred. If I'm right that the real goal was to remove them entirely, then this whole operation really backfired. If we don't see a wave of politicians in that county over the next few years named Jeffs, Barlow and Jessop, I'll be darn surprised.

After the Third Court of Appeals ruling, I posed several questions, some of which still remain unresolved in the wake of yesterday's result.

What does this mean for families that already signed CPS "service plans"? Will those be deemed invalid since the child seizures that spawned them weren't justified?

Similarly, if the judge had no authority to order the children's seizure, does that mean she also had no authority to order the much-ballyhooed DNA testing, results of which are expected back soon? What happens with those results?

Another still-unanswered question: "if CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as 'fruit of the poisonous tree' from any criminal prosecutions?" It seems likely, but I don't know.

What happens with the 90 new staff positions CPS got approval for in order to handle this case? Will the Legislature still allow them to move forward with those new hires, or will they shut down the expansion?

Perhaps most critically, when will the press investigate the pre-raid machinations that launched this fiasco? When will we hear the story of Rozita Swinton, the hoaxer whose phone calls started the mess? She's been incommunicado now for nearly two months. I want to know how she latched onto FLDS, who she spoke to before the incident, and when someone first figured out she was faking. Why hasn't she been charged in the YFZ case? Why haven't we heard her story?

All that said, yesterday's ruling was a mitvah and a blessing. Guy over at Messenger and Advocate offered this eloquent statement about the ruling's larger meaning for the nation and the Constitution:

I suppose in part it means, that the Founding Fathers, back in the day of this country’s infancy, were indeed inspired men, raised up by God to enshrine God given rights in our Constitution and Bill of Rights. In part it means that the rule of law is still paramount even today, even when a state is investigating an extremely unpopular religious movement. In part, I think it means that we should be grateful that the passions of the moment are subject to later review by cooler and calmer minds.

He's right; we should be grateful. So let me say formally, "Thank you Texas Supreme Court. ... Thank you Third Court of Appeals."

As egregious as the state's actions have been, you provided a constitutional backstop that limited the damage and protected individual rights. Today I'm proud of these members of the Texas judiciary. Let's hope Judge Walthers pays attention to what they've told her.

UPDATE: FLDS kids will begin returning home Monday.

NUTHER UDPATE: Judge Walthers added extra conditions that may delay the kids' return. More appellate filings expected. The Lone Star Times says FLDS was 'Walthered' again.

Texas Supreme Court rules against CPS, Judge Walthers; when will FLDS kids go home?

HUGE NEWS!! Many Grits commenters heard the announcement before I did, but the Texas Supreme Court this afternoon upheld the Third Court of Appeals mandamus order regarding children seized in the Great Eldorado Polygamist Roundup. Here's some of the initial press coverage:

• Salt Lake Tribune
• San Angelo Standard Times
• MSNBC
• Houston Chronicle
• Fort Worth Star Telegram
• Wall Street Journal Law Blog
• The Common Room
• National Public Radio
• Talk Left
  
• Dallas News
• Messenger and Advocate
• Coram Non Judice
• The Beldar Blog
• The Volokh Conspiracy
  
• TRLA: Fighting the Good Fight
  

And here's a copy of the Texas Supreme Court ruling, and here's the partial concurrence/partial dissent. Congrats to FLDS families and Texas Rio Grande Legal Aid attorneys who defended their parental rights in these cases.

UPDATE: The ruling is another unmitigated bench slap for San Angelo District Judge Barbara Walthers, if more modestly worded than pronouncements by the Third Court of Appeals. Said the Supreme Court of Texas: "Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted." Translation: "We 'carefully examined' the judge's work at trial, and the 3rd Court is right - she screwed up big time."

MORE: See Next steps, remaining questions in Great Eldorado Polygamist Roundup

Foundation backed juvie program in Indianapolis may hold clues for near-term reforms in Dallas and Houston

Via CrimProf Blog I noticed this article about the Annie Casey Foundation-inspired reforms to the local juvenile justice system in Indianapolis ("Transforming juvenile justice: Effort has cut numbers in lockup," Indianapolis Star, May 27).

I'm interested in learning more about what they're doing because the Annie Casey Foundation is also working with courts in Dallas and Houston to reform their juvie systems, and Indiannapolis appears to be several steps further along in the process. Reported the Star:

Far fewer youths file into Marion County's juvenile lockup each day, a key result of a reform effort that has reduced crowding and diverted thousands of children into programs outside the center's walls.

But architects of the overhaul of the juvenile justice system see the changes as only a starting point. In the third year of a program fueled by a national advocacy group, officials are aiming at ending racial disparities in punishment and transforming a system that many see as perpetuating delinquency rather than healing it.
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Changes have come quickly. The county's juvenile court judge and magistrates reject more delinquency cases submitted by prosecutors or schools. Some get resolved short of court by involving offenders' families in the case.

And a reception center screens youths more stringently, sending more lower-risk offenders home before trial instead of locking them up.

That might sound like a way to promote crime rather than stop it. But juvenile court Judge Marilyn Moores says data collected through the project have helped earn police support for the approach.

"Kids who are low-level offenders need to be out in the community and stay connected with the community, because it positively affects them," she said.

In detention, "the low-level offenders become high-level offenders."

It makes a lot of sense that if such a mentality could take hold, it would happen first in the juvenile system. The Annie Casey Foundation (not to mention local officials) deserve a lot of credit for embracing this innovative and research-based model.

Local juvie justice officials in Texas will want to watch these pilot programs closely. Especially with Senator John Whitmire and others at the Legislature proposing a radical downsizing of the Texas Youth Commission - a move that would shift responsibility for most serious juvenile offenders to the counties - it's timely that the foundation and Texas' two largest counties have teamed up to pioneer new alternatives. Here's a little more about how the Annie Casey sponsored program is playing out in the ground in Indianapolis:

The Casey Foundation's aim is to tailor decisions to each child's circumstances, sending a child to detention as a last resort. Advocates say the Casey reforms drive down detention costs, make lockups safer and reduce repeat offenses, improving public safety.

In Indianapolis, early data show stark changes taking hold without a surge in juvenile crime.

In 2004, the detention center held 171 detainees on an average day, far more than the 144 beds could accommodate. Earlier this year, the same measure was below 100. Officials have closed units to reduce capacity to 112.

Detention admissions have fallen by more than half, to 2,214 last year.

A committee of court officials, experts and community leaders developed a way to screen kids who most need to be in custody. The goal is to allow detention only when an offender likely won't show up for court or is a danger to the community. Alternatives include electronic monitoring, home detention and a curfew.

The project has drawn in prosecutors, public defenders and other players in the system, spurring more changes.

Some problems now are resolved short of a criminal case. Minor misdemeanor case filings have decreased, and probation violation filings are down nearly 40 percent over two years. In the past year, the probation department offered informal administrative punishments to more than 600 violators, keeping them from being thrust back into court.

It'll be interesting to see what version of this model folks in Dallas and Houston come up with; if those two counties could achieve those kind of results, it might indeed reduce inmate populations enough to reasonably speak of downsizing TYC.

Court filings all in; TX Supreme Court set to decide YFZ Ranch custody battles

Thanks to commenter KBP and others for pointing out that the following documents were filed with the Supreme Court of Texas regarding the Great Eldorado Polygamist Roundup:

TRLA's response to the Writ

and, better late than never:

BRIEF OF AMICI CURIAE, American Civil Liberties Union & American Civil Liberties Union of Texas, IN OPPOSITION TO RELATOR’S PETITION FOR MANDAMUS

Also, for reference, here's the state's filing with the Supreme Court and the Third Court ruling they're appealing.

The Supremes could now make their decision at any time. Though perhaps I'm engaged in wishful thinking, I'd put the odds at about 6-5 in favor of rejecting the state's writ of mandamus - perhaps even a little better than that, but with a lot of room for error.

What's your prediction on the outcome? What will happen if the state wins its appeal? What will happen if they lose?

Cynthia Kent: Smith County needs more court space, not a bigger jail

Forget building a bigger jail that voters don't want, says Tyler District Judge Cynthia Kent. She wants to reduce the need for more jail space by adding one or two courts to process cases more quickly. Reported the Tyler Morning Telegraph ("Judge: New court would clear out Smith County jail," May 28):

State District Judge Cynthia Stevens Kent says adding one or more new courts would do more to solve Smith County’s jail overcrowding problem than adding ever-higher numbers of new jail beds.

In a meeting of the Council of District Judges, she said Smith County should ask the Texas Legislature to create at least one — preferably two — new district courts for the county when lawmakers convene in January.

“We can’t build our way out of the jail overcrowding problem,” she said. “So let’s look at what we can do.”

With the regular session nearing, she said, Smith County commissioners should ask the Legislature to create the courts. The county currently has four district courts and three county courts-at-law.

Adding a court would help move cases through the county’s judicial system faster, she contends, and help clear out jail beds.

Smith County has the capacity to house a maximum of 755 prisoners, and a state remedial order to ship out all inmates above that number to other counties. As of Wednesday morning, 197 prisoners were housed in other facilities at a cost of $40 per day, per prisoner.

Voters rejected a bond proposal for a new jail and criminal justice complex last November, leaving officials scrambling to deal with the overcrowding and the remedial order. One new program judges offered even before the bond vote — the Alternative Incarceration Center — has shown good results.

But a second program, the Jail Expedited Case Court, showed disappointing results and was disbanded in March.

“I know that for many reasons, the JECC didn’t work,” Judge Kent said Wednesday. “There were some mechanical problems.”

But the principle was sound, she believes: a more efficient court system is an integral part of solving the jail overcrowding problem.

But Judge Kent added that a new court, without proper facilities, would be limited in its effectiveness.

“Let me be blunt,” she said. “We (the courts) have not had our facilities needs addressed for 30 years. This courthouse was built for two courts, and we now have seven.”

Kent is dead right that “We can’t build our way out of the jail overcrowding problem,” and it would behoove officials in other jurisdictions to also come to that realization.

I don't have enough information to hand to predict whether more courts would reduce jail overcrowding in Smith County. But I certainly agree with Judge Kent the building is far too small for the functions it serves. Not only that, I don't think many people would disagree with me that it's one of the ugliest courthouses in the state, appearing as though it were designed by some Soviet-era architect with a fetish for concrete boxes.

As if to advertise the building's deficiencies, even the requisite statue of Lady Justice next to the courthouse entrance holds aloft her traditional scales but wears no blindfold. The Houston Chronicle awhile back said that omission is "fodder for a rueful joke among defense attorneys. In Smith County, they say, justice is far from blind."

Judge Kent led the charge against new jail bonds in 2006 and 2007, and has been a key leader in Smith County promoting incarceration alternatives. I'm glad to see she's not done promoting alternatives to unnecessary jail building in my hometown.

UPDATE: Thanks to Judge Kent for sending me a copy of this letter to Smith County officials providing her research and arguments in support of adding 2 new courts in Smith County with the goal of reducing jail overcrowding.

See prior Grits coverage of the Smith County Jail saga:

• Memo to Tyler officials: Listen to your voters and use new tools to reduce jail overcrowding
  
• Counties that rejected new jails must now get serious about diversion'
• Voters who rejected county jails looking for better justice policies
• Texas prison and jail vote results
  
• Public participation required for vigorous jail debates
• The Jail that Ate Tyler' and other stories
  
• Debate intensifies over Tyler's $125 million 'Taj Mahal' jail
  
• Architect: Voters should accept nine-figure pricetag for new jail
  
• Tyler's jail alternative saves $1 million in first nine month
  
• Smith County voters have more options than building Taj Mahal jail
• Tyler's day reporting center reduces overcrowding, saves money
• 'Unsellable' Tyler jail still too small
• Tyler's Alternative Incarceration Center opens; DA thinks no one qualifies
• Tyler judge: End jail overcrowding with community supervision of nonviolent offenders
• More on Tyler's alternatives to jail overcrowding
• Incarceration Alternatives: From Smith County, a plan emerges
• Update: Tyler Alternative Incarceration Plan, Day Reporting Center funded
• Tyler voters: Jail bonds a 'No-No"
• Jail bond vote may become annual affair in Tyler

Required to Confess?

Former Dallas City Councilmember James Fantroy's conviction on corruption charges and refusal to admit his guilt in the face of the verdict has Big D political observers in a tizzy. The news inspired Dallas News columnist Steve Blow to overcome his gag reflex long enough to produce this insight about the wisdom of insisting defendants confess to obtain a lower sentence ("Confession shouldn't be a condition of Fantroy's freedom," May 28:

in a larger context, I have to confess some unease about making confession a requirement in any part of our criminal justice system.

As recent events in Dallas County have made so clear, innocent people really do get convicted.

So while confession may be good for the soul, I’m not sure it should ever be a requirement for freedom.

This issue has emerged as more and more innocent people have been freed by DNA evidence. Some talked about the squeeze they felt when they came up for parole.

Prisoners are routinely asked about their crimes. There’s the distinct impression that owning up to a crime and showing some remorse will go a long way in winning parole.

“It’s a Catch-22 if you are an innocent person,” said the Rev. Jim McCloskey, executive director of Centurion Ministries, which works to free the wrongly convicted.

“It’s very common. It has happened in a number of our cases.”

It has happened to kids, too. One of the many criticisms leveled at the Texas Youth Commission was that it required young people to confess to crimes as a condition of being “resocialized” and ready for release.

“Basically, if you were wrongly convicted and sent here and then stuck to the truth, you could be punished for that. If you lied, you could move ahead,” said Youth Commission spokesman Jim Hurley.

While TYC counselors still like to see young offenders take responsibility for their actions, confession is no longer a condition of release, he said.

Blow's point is well taken, especially since so much of the investigatory process in modern US policing is about convincing defendants to confess. About half of criminal convictions result from confessions, according to a book I'm reading by Richard Leo on police interrogations. But coercing confessions has consequences; mainly the risk of punishing the innocent and freeing the guilty.

Among those who was penalized by his failure to confess to crimes he didn't commit was James Lee Woodard, who was released from prison recently after spending 27+ years behind bars. He actually "stopped attending his parole hearings because gaining his release would have meant confessing to a crime he didn't do."

Fantroy appears by all accounts but his own to be guilty as homemade sin, but quite a few people like James Lee Woodard who "looked guilty"on the front end have wound up exonerated down the line. I tend to agree with Blow that a confession shouldn't be required for a reduced sentence or parole. Fantroy's circumstances aside, occasional errors by the system are simply a fact, and when they occur it'd be unfair to further punish actually innocent people for them.

RELATED from the Dallas News:

• Scott Farwell: Fantroy says he'll go to prison rather than admitting guilt
• Gromer Jeffers: Why did Fantroy choose jail?

Killing the Messenger: Bexar probation chief wants to fire PO who snitched on faulty urinalysis results

Instead of acting to resolve the use of questionable forensics by a private vendor, Bexar County probation director Bill Fitzgerald decided to kill the messenger. He plans to fire Sherri Simmonelli, the head of an employees' group and lead whistleblower regarding the lab, and her co-workers are protesting. Reported KSAT:

Probation officers gathered at the Bexar County Justice Center in support of one of their own, now facing termination because the officer said she spoke to the media.

Sheri Simonelli said she was recently placed on administrative leave pending termination for talking about a county-contracted drug testing lab producing a significant number of high positives.

"They are going to take retaliatory action against this individual for conducting herself in a manner of the highest calling of conscientiousness and conscience and duty to a fair justice system, attroney David Van Os said.

Bexar County currently contracts Treatment Associates on the 700 block of San Pedro Avenue for its drug testing.

In February, the number of positive urinalysis tests jumped dramatically, leading Simonelli and others to begin asking questions.

Simonelli, also president of the Central Texas Association of Public Employees, said some of the positive tests were taken to another lab, which produced negative results.

Fitzgerald of all people should know that problems at the Bexar probation department's troubled urinalysis lab aren't new. It's been producing sloppy or questionable results for much of his tenure. You'd think he'd thank an employee for trying to fix errors instead of fire her over it.

But then, this is Bill Fitzgerald's general modus operandi. He famously announced a couple of years ago just before Christmas that he would have all 430 employees re-apply for their jobs and submit to retention interviews. Why? He was upset some of his employees, including Simmonelli, were trying to form a union.

Now he reacts to news of flaws by a urinalysis lab by firing the employee who caught the errors?

Judges in Bexar County need to rein in Mr. Fitzgerald, and consider shipping him back to Phoenix. He seems a lot more concerned with covering up problems than fixing them. This boorish behavior can have no good result except to allow future problems to fester and further alienate his already disgruntled staff.

What options besides jail building for Waco?

So what should McLennan County do to reduce jail overcrowding instead of building a new private jail?

In my view they need plans to address the demand side of the equation; counties statewide face the same problems, and they cannot all build their way out of the dilemma.

According to these data from the Commission on Jail Standards (pdf), McLennan County has the second highest incarceration rate in Texas among counties with more than 200,000 people, incarcerating more than 4 people per 1,000 residents. More than 20% of McLennan's pretrial detainees (95 out of 473 as of April 1) are charged only with misdemeanors

More than half of McLennan's jail inmates were incarcerated awaiting trial as of April 1st (pdf), while not too many years ago the statewide average was only 30%. To get back closer to that level, judges need to more aggressively use pretrial services to vet low-level offenders for release on personal bonds.

The Sheriff, Waco PD and county commissioners should also look at implementing HB 2391 in their county, which allows officers to give citations instead of arresting for certain low-level, non-violent misdemeanors. I've argued repeatedly since it passed in 2007 that voters should reject new jail building proposals if their officials aren't using new tools available to them to reduce overcrowding, particularly the new discretion under HB 2391.

The other option McLennan commisioners should pursue is to create low-level incarceration alternatives, perhaps modeled after the day reporting center in Tyler which has saved big bucks for a comparably sized jurisdiction.

Jail building should be a last resort, but McLennan County wants to pursue building more jail beds than they need without even trying other methods to reduce the jail population.

I've previously wondered which would prevail: Texans' taxation revulsion or their incarceration addiction. McLennan's example shows some counties don't want to make such a choice, wrongly thinking they can have their cake and eat it too.

'A couple Jills with their eyes on a couple bills': McLennan County seeks profit over public safety with privatization schemes

Because there ain't no man
Who got the money in his hand
Who got any of that bread
Bein' slow in the head
The easier it looks
The hotter it hooks
There ain't no such thing as easy money

- Rickie Lee Jones, Easy Money

Nearly every jail in the state of any size is overcrowded and struggling to find enough guards, but there are still some local officials that think they can solve the problem for free or cheap.

In McLennan County (Waco is the county seat), a story in today's Waco Tribune Herald ("Solutions aplenty sought for jail overcrowding dilemma," May 28) informs us that the county commissioners court is "seeking proposals from private vendors to alleviate overcrowding at the county jail, a situation that earlier this month prompted them to authorize the hiring of 12 new jailers." The commissioners court laid out four different versions of a privatization option - indeed, the only possibility that seems not to be on the table is to let the Sheriff's department run the jail. Reported the Tribune Herald:

County commissioners have settled on four options for solving jail overcrowding.

With the county’s lease with private detention company Community Education Centers to operate a 329-bed downtown jail expiring Oct. 1, one option seeks proposals to operate and manage the McLennan County Detention Center on Columbus Avenue.

In recent years, the county has earned about $800,000 a year from its contract with CEC, formerly CiviGenics, which contracts with several agencies, primarily the federal government, to detain prisoners.

However, in the past year, the county’s revenue stream has dipped to about $200,000 because the county is paying CEC to house overflow prisoners from the county jail on State Highway 6.

Lewis has described the county’s current contract with CEC as a “sweetheart deal” but warned Tuesday that the good times are almost up and that a new contract might approach $61 a day to house each prisoner.

Precinct 4 Commissioner Ray Meadows bristled at the suggestion.

“For $61, we could just put them all on a cruise ship and let them float around and let the cruise people take care of them,” Meadows said.

A second option calls for a private company to finance, design, construct, operate and manage a new 1,000-bed jail to be built on 8.9 acres west of the current 931-bed facility on Highway 6.

A third option combines the first two, with a company operating the downtown jail and building and operating the new 1,000-bed jail on Highway 6.

The fourth option calls for a private company to take over all county detention duties except for booking, releasing and records. That would include operating the downtown and Highway 6 jails and building a new one.

Commissioners hope to look far enough into the future and build a large-enough jail that can help pay for itself or make money for McLennan County by leasing prisoner space to other counties with overcrowded jails, Lewis said.

The jail standards commission’s remedial order has also focused on the prisoner-to-staff ratio, which the state says is out of compliance. The sheriff is in the process of hiring 12 new jailers at a cost of $203,000 to help regain compliance.

Several thoughts come to mind reading this account. First of all, if the contract with CEC earns $200,000 per year and the county just spent more than that on extra jailers, they're really not saving any money at this point through the privatization route.

That makes me wonder why they think that would change going forward? When a private contractor can hold federal immigration inmates for $88 per day per head, what incentive do they have to house McLennan County's prisoners on the cheap?

The line about putting inmates on a cruise ship for $61 per day is funny, but it displays a pretty grave misunderstanding of the private prison market in Texas. A few years back private companies were willing to give "sweetheart deals" like the one McLennan County has to get their foot in the door; with fat federal contracts available, those days are likely behind us.

What's more, even if they can find someone to operate the jail on the cheap, the county is still liable for conditions, abuse, etc.. It may be less hassle for the Sheriff to let someone else manage the operation, but the county must still pay to operate the jail, plus the company's profit, and if anything goes wrong county taxpayers are still on the hook.

The McLennan County private jail scheme is a speculative proposal wherein the commissioners court hopes to become carceral entrepreneurs, selling bed space to others. It may sound good to suggest building "a large-enough jail that can help pay for itself or make money for McLennan County by leasing prisoner space." But what that really means is that - if present, untenable increases in incarceration rates in the face of declining crime are not sustained - the county will wind up with a huge, empty jail and local taxpayers must still pay off the bonds.

For example, if John McCain becomes President in 2009 and enacts comprehensive immigration reform, which he favors, the federal demand for immigration beds could evaporate nearly overnight, freeing up existing private prisons to soak up excess demand by the counties.

Alternatively, many counties are implementing alternatives to incarceration that could reduce carceral demand over time.

Either of those eventualities - not to mention a litany of other conceivable vicissitudes of fate - could turn McLennan County's entrepreneurial jail scheme from a moneymaker into a long-term financial disaster.

MORE: What options besides jail building for Waco?

Ambrogi: Appellate court ruling made blogging about YFZ raid safe

Having earlier criticized the legal blogosphere's relative silence regarding the Great Eldorado Polygamist Roundup, Robert Ambrogi at Legal Blogwatch writes that with the "appeals court ruling that the state had no right to seize the children, the blogosphere is at last breaking its silence." He continued:

In my earlier post about the silence of the blogs, some of those who commented proved prescient. One wrote that the raid "has both the Left and the Right holding their breaths with uncertainty." Another said that the issues "are so complex and distasteful" that many blawgers are "adopting a wait and see attitude." Still another said, "the 'ick' factor overwhelmed the facts." With yesterday's opinion, it is now safe for bloggers to break their silence.

Among legal blogs Ambrogi singled out:

Peter Tillers, for one, calls the case a "civil liberties disaster." Steven Ballard says the court "did the right thing in denouncing the outrageous government raid." Eugene Volokh describes the opinion as "a sharp and detailed rebuke of the Texas Department of Family and Protective Services," and considers the possibility of lawsuits against the department. Dahlia Lithwick finds parallels to Guantanamo, "as a noble effort suddenly got mired down in tricky factual disputes, cultural and religious clashes, and the practical necessity of warehousing hundreds of human beings for an indefinite period of time."

A few more legal blawggers have chimed in since Ambrogi wrote that. Civil Commitment adds that "much of the problem with the FLDS kidnapping is that there's nothing to like," quoting Wendy McElroy, an "individualist" and "feminist" who's hopping mad. At American Thinker, an attorney and a philosopher co-author an essay explaining the real precursor to the Great Eldorado Polygamist Roundup: "The McMartin daycare abuse tragedy blazed a trail."

Meanwhile, here's an MSM piece for the attorneys in the crowd: The Christian Science Monitor yesterday surveyed the church-state issues evoked by the YFZ raid and its aftermath. The story included this observation:

"If I had been advising the [DFPS officials] in their suit, I would have said, 'Don't even think of asking about their beliefs,' " says Marci Hamilton, an expert on church-state issues at the Cardozo School of Law in New York. "Ask about their conduct and intent to act. They don't have to abuse a child to be guilty of a felony if they have the intent. There should have been more focus on conduct."

The Third Court agreed with Hamilton's interpretation of what's historically been considered justifications for removing somebody's kids - their actions, not their religious beliefs. It's the affirmation of that legal touchstone, I think that perhaps has made the lawyers in the blogosphere more loose lipped on the subject.

In any event, there's plenty to talk about. To call the situation "fluid" would insult the relative stability of fluids. "Explosive" would be a more accurate term. Ambrogi's right there should be lots of continuous fodder going forward for the legal blogger crowd.

MORE: Forgot to mention a couple of Texas lawyer-bloggers who've written on the subject, starting Big Tom Kirkendall's recent post over at Houston's Clear Thinkers. Also, John Floyd reminds me that I should have mentioned his recent extended commentary on the subject. Several arguments in favor of the state's position have been assembled by our friend TxBluesman at Coram Non Judice. Who else am I missing among legal bloggers?

No 'male sexual perpetrators' identified involving FLDS kids in SCOT case

Here's an interesting line quoted in the Salt Lake Tribune from the CPS' pleading to the Supreme Court regarding FLDS mothers:

"Failure to grant a stay will mean that approximately one hundred twenty-four children will be returned to alleged mothers without any male sexual perpetrators being identified," state attorneys wrote.

I take that as an admission that, for the children whose mothers were covered by the Third Court's ruling, the state has not yet identified a single "male sexual perpetrator" despite six weeks of investigation. How then, is this anything more than an expensive and ham-handed fishing expedition?

I've repeated this ad nauseum, but it's worth pointing out again the four reasons CPS is allowed to seize someone's children in Texas:

1. an immediate danger to the physical health or safety of the child
2. the child has been the victim of sexual abuse
3. the parent or person who has possession of the child is currently using a controlled substance
4. the parent or person who has possession of the child has permitted the child to remain on premises used for the manufacture of methamphetamine

So if no one alleges FLDS members engaged in meth manufacturing or drug use, the children were physically healthy and well cared for, and weeks of investigation have identified no "male sexual perpetrators," how can CPS justify keeping these kids, exactly?

See The Common Room for much more news on the Great Eldorado Polygamist Roundup.

Plano steroid dealer says he sold to police in five Metroplex cities

Somehow I missed the story from earlier this month about a Plano steroid distrubutor who's threatening to blow the whistle on Metroplex area police officers. While headlines focused on his alleged sale of steroids to former Cowboys punter Matt Lehr, reported WFAA-TV ("Man says Plano police stole steroids from him during a raid," May 1):

David Jacobs says he’s ready to name names of police officers who got steroids from his network. "We as people have given them a set of authority to uphold these laws, but they are breaking them right in front of our faces," said Jacobs.

Jacobs is talking about officers in five cities: Garland, Richardson, Dallas, Arlington, and Plano. He says the Plano officers stole from him during a raid.

"And to steal money from my house, and steal steroids, and steal growth hormones from my house, then put handcuffs on me and then judge me," said Jacobs.

Plano police say Jacobs has yet to file a formal complaint with them so they have not investigated the allegations.

Federal prosecutors are investigating professional athletes.

When asked if he thought that a lot of professional athletes would be brought into this scandal, he answered: “I think this is way bigger than baseball.”

According to the Dallas News, Jacobs informed police about the alleged theft and steroid use by officers when he was arrested, but apparently Plano PD was waiting for him to complain formally to Internal Affairs. That's a pretty lackadaisical response to allegations by a known steroids dealer that he sold drugs to your officers!

Will these allegations of steroid use by Metroplex police be investigated or swept under the rug? And will authorities express as much interest in Jacobs' police officer clients as those who are professional athletes? They should, but I doubt it.

See prior related Grits posts:

• Where is Congressional investigation of steroid abuse among law enforcement?
  
• Why test Texas high school athletes for steroids but not police officers?
• Arbitrator reinstates steroid using police officer
  
• Cops on Steroids
• Lawsuit: Private mercenaries, police trainers abuse steroids in Iraq
• Insert Shrunken Testicle Joke Here: Book by ex-Texas cop defends steroid use by police
  
• Feds should check names of steroid customers with state law enforcement registries
• Readers back steroid testing for cops and high school athletes
  

Will expanded immigration detention exacerbate Texas' prison guard shortages?

Regular readers know that Texas prisons and county jails face a severe understaffing crisis caused by low pay and the rural location of facilities, and that in federal facilities the problem may be even more pronounced.

Meanwhile, my prediction that immigration detention would drive prison expansion in the near term has come true, adding another category of detention facilities that require more guards when no one can find any. It's hard to see how these long-term trends can co-exist viably. Where does it all end?

At the Fort Worth Star Telegram, Jay Root had this story Sunday ("Border patrol employs zero tolerance approach in Del Rio," May 25 ) detailing outcomes from ending the so-called "catch and release" policy that allowed undocumented immigrants out of detention while awaiting a detention hearing. The result has been:

an almost insatiable demand for jail space.

Eight years ago, the Val Verde County Jail had 180 beds. This year, after a second 600-bed expansion, the maximum-security jail has room for 1,425 prisoners, an increase of almost 700 percent. While the state prisoner population in Val Verde has remained about 70 to 80 a day on average, the number serving time for federal immigration and drug offenses has skyrocketed, officials say.

"If it wasn't for federal prisoners, we wouldn't need any of this. It just wouldn't be necessary," Jernigan said while giving a tour of the huge facility he oversees in Del Rio. "This is a federal court city, and there's a need to house federal prisoners here."

Two prisons specializing in federal detainees are going up along the Texas-Mexico border southeast of here -- a 654-bed unit in Eagle Pass and a 1,500-bed jail nearing completion in Laredo. Like the Val Verde lockup, these facilities are run by the Geo Group, formerly known as Wackenhut, which last year posted its best financial results ever, the company said.

Even the largest jail for illegal immigrants, the Willacy County Jail, is too small to accommodate federal demands. Located in Raymondville -- nicknamed "Prisonville" -- it is expanding capacity from 2,000 to 3,000 beds this year, officials say.

The detention boom hasn't been done on the cheap.

According to Immigration and Customs Enforcement, it costs $88 a day to house a prisoner in privately run jails.

By comparison, the state of Texas spends about $40 per day to house state prisoners, and in many county jails the cost is less than that. So the expansion of immigration detention facilities puts tremendous financial pressure on counties and the state to increase guard pay to keep enough warm bodies in C.O. slots. For the most part, they're not in a position to do that.

Meanwhile, I swear I see a different set of arguments and logic used every time somebody tries to claim that border enforcement is "working." Here's Root's effort:

In 2007, 22,920 people were caught in the Del Rio sector, many of whom passed through the Val Verde jail. In 1974, the earliest year-end figures available, almost twice that many -- 44,806 --were caught. Authorities believe that fewer captures mean fewer illegal crossings.

Of course, those data don't tell us there were "fewer illegal crossings." They only mean that for all the extra spending, there were fewer detentions. It could be true that the number of crossings overall went down - in fact that's almost certainly the case since the housing market in Texas and elsewhere crashed overnight last year and many jobs drawing immigrants were in construction. (Root also reports that overall arrests last year were down all along the border, though not as much as in the Del Rio sector.)

However, simply using the metric of how many ICE caught to tell if they're succeeding amounts to a self fulfilling prophecy. There's little hard evidence I can see that expanded enforcement is responsible for the decline. Indeed, if the number of detentions had increased, I'm pretty sure that would have also been spun as a success.

In any event, my question for the moment isn't whether the policy works, but is it sustainable?

Will overcrowded county jails be forced to send local inmates out of county to make room for increased immigration holds? Harris County already must send hundreds of inmates to a private prison in Louisiana, yet their Sheriff is plowing forward to expand detention of immigrant in the jail.

Further, will high per-inmate rates for immigration prisoners indirectly raise costs for locals by putting pressure on guard pay or causing guards to leave public employ to work for rapidly expanding private facilities?

Some counties are even proposing speculative jail building hoping to lease bed space to ICE, apparently banking on the idea that immigrant detention will remain high for the next 20 years or so while they pay off public bonds. With all remaining presidential candidates favoring comprehensive immigration reform, that's probably a bad assumption. Talk about sowing the seeds of your own destruction!

Texas prisons and largest jails already can't hire enough guards to function safely at full capacity. If immigration detention continues to expand at double digit rates, we may soon reach a tipping point regarding cost and safety, if we haven't already, that forces prison builders to put on the brakes.

RELATED: From the Austin Statesman, "More illegal immigrants are being charged criminally in Austin," May 28.

SEE ALSO: If you didn't see Stephen Colbert's suggestions for prison expansion options, check it out here via Texas Prison Bidness:

Rounding up news on the Great Eldorado Polygamist Roundup

Just checking in to point readers to good newspaper and blog coverage of the Great Eldorado Polygamist Roundup:

• Fort Worth Star Telegram: Sect case hitting CPS employees in pocketbook
• Salt Lake Tribune: FLDS court fight heats up
• Salt Lake Tribune: Battle over FLDS kids gets rough
• Houston Chronicle: Lawyers cry foul in FLDS seizures
• By Common Consent: A brief apology for the LDS apologia regarding FLDS
• Beldar Blog: Beldar on Volokh on the Texas polygamy child custody case
• The Common Room: Updates and links

Have a happy Memorial Day folks. Check back tomorrow for more Grits.

Which is worse: Life without parole or the death penalty?

Reacting to the Juan Quintero verdict, the ADA blogger over at Life at the Harris County Criminal Justice Center poses the question: Which is worse? The death penalty or life without parole (LWOP)? The blogger, A Harris County Lawyer, concludes that "I don't think anyone can really make the argument that LWOP is more severe than the death penalty." I reacted thusly in the comments:

How do you know ... the afterlife isn't entirely glorious and we do every executed offender a tremendous favor by hastening their arrival? Perhaps the streets are paved with gold and all our deceased friends and family will be there to greet us on the other side. Many Christians believe some version of that to be the case, and more than a few offenders turn to Christ during their travails, just like the thief on the cross before he expired.

To repeat my earlier reasoning, everyone dies but not everyone stays locked up in a cage for decades. Death is perceived as a relatively more severe "punishment" because we don't know what comes after, so people fear the unknown. But death is also a sentence to which we're all condemned - everyone's entry card to the human condition bears an unknowable expiration date - which makes it at once as un-extraordinary as it is exceptional. That sounds contradictory, but that's because death as a punishment creates a paradox that's just not there for LWOP. With LWOP, society knows EXACTLY what punishment the offender is getting, because we're all here on earth to see it. With death, at most one can "hope" it's enough. And since vengeance cannot bring back the victim, it never is.

What do you think? Which is the harsher punishment, LWOP or the death penalty?

BLOGVERSATION: At Simple Justice, Scott Greenfield tells this related anecdote about attitudes toward prison and the death penalty in China:

I was half of a contingent meeting with a judge from Mainland China. My bookend was Larry Goldman, former president of the National Association of Criminal Defense Lawyers and sophisticated New York bon vivant.

Eventually, discussion turned to China's execution of prisoners, enough to make a Texan blush. Bearing in mind that China (pre-quake) had far more people than it could handle, I anticipated that the judge would view life as a rather expendable commodity, and justify the imposition of the death penalty as being a fairly mundane sanction, where a billion fewer people would not be noticed.

The judge did not. Not at all. He was quite serious in explaining that he believed that death was a kinder outcome to the defendant than life in a Chinese prison without parole. In fact, he was critical of our view that putting a human being in prison for the rest of his life like a caged animal was less cruel.

The picture he painted (mind you, he was talking about Chinese prisons, not American) was of a slow, lingering death of 20 to 50 years, maybe even longer, making it sound like a means of horrible torture. Death by a thousand days, rather than swift and painless not too painful. He could not understand why we would think the suffering of life in prison was of a lesser quality than execution.

See recent related Grits posts:

• Why choose life? Exploring possible reasons for the Quintero verdict
• Danalynn Recer on the Quintero verdict

ALSO RELATED: From the Houston Chronicle, "Will death become the exception, not the rule," May 26

Study: Elected judges issue more opinions of lesser quality

A story today in the New York Times by Adam Liptak focuses on electoral selection of judges in the US, and mentions this interesting if predictable tidbit ("Rendering justice with one eye on re-election," May 25):

A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.

“A simple explanation for our results,” wrote the paper’s authors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”

The story also supplied some interesting data on elected judges in the US compared to the rest of the world:

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

My own views on this controversy are somewhat transient and situational; I like judicial elections because it gives you a chance to vote out bad judges. But the races are too dependent on candidates atop the ballot, and most voters don't typically make informed decisions about judicial candidates. The idea of a retention election seems to possibly capture the best of both worlds.

Will next Texas DNA exoneree come from death row?

Will the next "actual innocence" exoneration in Texas come from death row?

Michael Blair was condemned to death for raping and killing Ashley Estell, but now collin County DA John Roach admits DNA evidence proves he didn't do the deed. Says the Texas Death Penalty Blog:

Don't worry, though. Because this man has confessed to other brutal sexual assaults, he won't be freed. Ever. But a Texas DA, a Texas jury and several appeals courts almost had the blood of an innocent man (in this case) on their hands. He was convicted because he was a known child molestor who showed an interest in the case. If the process moved as quickly as death penalty proponents wished it did, he'd be dead by now.

Even more to the point, authorities wouldn't know they should still be looking for Ashley Estell's killer. See early media and blog coverage of the story:

• Stand Down Texas' analysis and news roundup
• Collin County Observer: Roach calls to void Blair's death sentence
• Dallas News: Michael Blair Case Unravels
• Capital Defense Weekly: Texas death row exoneration in the works?
• Defending People: Actual Innocence in Collin County

Danalynn Recer on the Quintero verdict

Yesterday evening the missus and I had dinner with a friend from our college days, Houston attorney Danalynn Recer, founder of the Gulf Regional Advocacy Center. She's taking a break in Austin after concluding the long and grueling capital murder trial of Juan Quntero last week, an illegal immigrant copkiller who jurors gave a sentence of life without parole (LWOP), a verdict that surprised many court watchers.

The Quintero trial wasn't about guilt or innocence, but entirely about what sentence to give out: life without parole or the death penalty. Dana barely spoke to the press during the trial, much to their chagrin, so I appreciated that she agreed to a short interview about the Quintero case for Grits.

Speculation has abounded since the verdict, including on this blog, about why the jury voted they way they did, but Recer thinks that "if people want to take a lesson from this case, they should take the jurors at their word" when one of them declared, "I believe he has value ... He's loved by many of his family and friends, and that was number one." She said the jury simply lived up to their duty identified by the Supreme Court to issue a verdict based on a "reasoned moral response."

Quintero was "so remorseful and self-hating over the incident," said Recer, that he seriously considered becoming a "volunteer," i.e., simply acquiescing in a death sentence in order to punish himself and avoid life in prison. Quintero's two teenage daughters talked him into going to trial and participating in the "mitigation" defense, Recer said, which allowed his lawyers to dig deep into his personal life and medical history. They convinced him that "his life is not over, he's still a Dad."

Asked why Quintero committed this unspeakable act, Recer said the bottom line was he was afraid, and reacted in the heat of a panic attack, responding to a "threat that didn't exist." Quintero has a chronic anxiety disorder, she said, and self-medicated with alcohol. (Quintero drank daily on a scale that could only be defined as gross alcoholism - up to a case of beer a day.) To that extent, she said ironically, one psych expert believed Quintero may not have shot Officer Johnson if he wasn't sober (!).

Recer also believes that a childhood brain trauma contributed to the circumstances, though she acknowledges many people were dismissive of the claim when it was raised by the defense. The frontal lobe injury, she said, made him cling to routines and caused him panic attacks when confronted with the unexpected. Then he found himself in a most unexpected, un-routine circumstance - arrested at a traffic stop for reasons he didn't understand, sitting in the back of a police car with a gun hidden in his belt - and she thinks the brain injuries inhibited his decision making functions during those critical moments.

Finally, Recer said some of the information that might have better explained Quintero's mindset was excluded or made unavailable because prosecutors went after his employer and family members on other charges, making them unavailable or unwilling to participate in Quintero's trial. However, she said over the three months leading up to the shooting Quintero had become increasingly paranoid and irrational, as well as fearful and distrustful of police, mostly from hearing second hand accounts of abuse or alleged corruption, and from his experience with police in Mexico.

None of this justifies Quintero's actions, Recer said, which is why his lawyers did not contest the elements of the offense and only argued over the correct sentence. But she believed all these were contributing factors; they were the reasons for what happened, even if no one can point to a single good reason for shooting a police officer in the back.

Given these "bad facts," what explains the verdict? Recer believes the case shows people in Harris County "are not as bloodthirsty as we're generally led to believe." In voir dire (jury selection), lawyers vetted 126 jurors, and by a 5-1 margin jurors were excluded because they refused to consider the death penalty compared to those who said they would refuse to consider life. She thinks Harris County DA's office "misunderstands its constituency," and that the jury they got was essentially representative of their jury pool and the citizenry at large.

She did say, however, that the Batson and Miller El cases from the US Supreme Court, which limited prosecutorial jury strikes based on race, kept the prosecution from using pre-emptory strikes as aggressively as in the past. So in that sense, I asked, is it fair to say you didn't win the case at jury selection but the prosecution lost it there? "Possibly," she nodded. "There were a lot of reasons, plus a lot of luck, but jury selection was big." The jury "was a necessary but not sufficient condition," she said, for getting the LWOP verdict.

Recer said they'd tried unsuccessfully to convince the state to agree to a plea and avoid an expensive, drawn-out and unnecessary trial. She was roundly criticized for releasing that information to the media, which reinforced her inclination, she said, simply to tell the press nothing at all. Recer said the proffer had been discussed in open court as well as written pleadings, and the fact it had been made wasn't privileged.

In any event, the time came when Quintero's lawyers got a meeting with the Harris County DA's Office, where they hoped to present most of the mitigation evidence that later went to the jury. She was amazed, she said, the state's lawyers didn't just shut up and listen to their opponent's case, even if they intended to go to trial. After all, the defense presentation amounted to "free discovery." But Chuck Rosenthal, himself representing the office at the meeting, was openly dismissive that anything could mitigate the crime, shutting down discussion before she'd even laid out her evidence. If he'd let the meeting continue, she said, at least they "would have known what's coming."

Recer believes the verdict reflects changing public attitudes generally toward the death penalty, as well as changes in the law. The Legislature's decision to make LWOP the only alternative to a death sentence played a big role in the jury's verdict, she thinks. But their experience in voir dire makes her believe the pendulum may be swinging away from more punitive public attitudes in the '90s.

One last thing I should mention: A recurring theme throughout our talk was Recer's displeasure with reporters covering the case. She said MSM journalism focuses solely on generating conflict to sell newspapers, so they wanted to portray every story as filled with conflict as possible. In fact, she said, Quintero's defense granted most of the facts alleged by the state, and there was little real disagreement. She considers the sentencing phase of the trial a function of "nonviolent conflict resolution" that becomes distorted by the media formula of conflicting "balanced" quotes on "opposing" sides. Everyone in the courtroom was really on the same side, she said. They all knew what Quintero did was wrong and were all seeking justice.

Photo via the Houston Chronicle/Billy Smith.

The civil liberties watchdog that didn't bark

Wendy Kaminer at The Free For All takes my former employers at the ACLU to task for their failure to get involved in the YFZ Ranch case and their "tepid, tentative statement of 'concern.'” writing:

This general acknowledgment that the summary removal of 416 children absent actual evidence of their abuse threatens fundamental rights is preferable to the silence that preceded it, barely. The ACLU’s statement is more like an exercise in public relations than a defense of civil liberty; taking no stand for or against the state’s unprecedented actions in this case, which threaten to consign over 400 children to foster care, the statement seems designed to offend no one, while providing cover for the ACLU, should it be accused of ducking a hard civil liberties case. ACLU spokespeople sound more like bureaucrats than fearless advocates of individual rights: they carefully pay deference to state power to protect children, ignoring the dearth of evidence in this case, and stress that the ACLU “deplores crimes against children” and “stand(s) opposed to child abuse,” in case anyone thought the ACLU stood in favor of it.

Obviously anxious about appearing “soft” on child abuse (at a time when rational approaches to protecting children have been perverted by hysteria about abuse,) the ACLU prefers being soft on violations of civil liberty, when the liberties of wildly unpopular or politically incorrect groups are at stake.

Ouch! See the rest here. UPDATE: Here's ACLU of Texas' statement about the ruling from the 3rd Court of Appeals, which the group "applauds."

Via the Massachussetts Divorce and Family Law Blog.

How many underage moms were at the YFZ Ranch? It sure wasn't 60%

The Headmistress over at The Common Room has been doing a terrific job summarizing the daily blow by blow in the YFZ Ranch case, and I strongly recommend those interested to check out her update for today, which provides several clues to what might happen next in the wake of the 3rd Court of Appeals recent decision (e.g., Judge Walther appears to be on the warpath, and Prof. John Walsh, who studies FLDS professionally as an academic, says the state misrepresented his research in its court filings).

But stepping back for a moment from the daily drama, let's clear up once and for all a bogus statistic that has clouded many discussions of the Great Eldorado Polygamist Roundup. Brooke Adams wrote yesterday on her blog at the Salt Lake Tribune that DFPS:

kept telling us, the media and the public, that there were 31 girls between the ages of 14 and 17 who were pregnant, mothers or both.

Now we know the truth: There are only five girls in that group. All but one are or will be 18 this year. One gave birth when she was 17, three when they were 16. One is pregnant. (emphasis added)

So we're talking about five teen moms out of 27 teenage girls, not 31 out of 53. But even for those five, said the 3rd Court of Appeals, DFPS did not meet their burden of proof. The court declared that:

there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community that condoned underage marriage and sex.

So all this hoopla at the end of the day was about five teen moms out of 440 some odd kids. You could go into any community in Texas, I bet, and find the same thing. Not only that CPS presented no evidence about the fathers' age or the girls' marital status upon conception. These data are a far cry, aren't they, from the terrible depictions of abuse CPS portrayed to the press over the last six weeks?

See prior, related Grits posts:

• Youngest of alleged YFZ teen moms not really pregnant
• Facts continue to erode overhyped statistic on YFZ teen moms
• Phony statistic on pregnant teens clouds YFZ Ranch debate
• Misleading PR initiative by DFPS muddies YFZ Ranch story
• Lies and Statistics
• After all the hoopla about "child brides" ...

New Reader Poll: Should the state pick up Schleicher County's tab for YFZ Ranch raid?

I just posted a new reader poll asking whether you think the state of Texas should reimburse Schleicher County for costs of the massive boondoggle arising out of the ill-conceived raid on the YFZ Ranch launched by their Sheriff.

Is there any reason Texas taxpayers should pay for expenses the Sheriff and decision makers must have foreseen when they launched the raid? Let me know what you think, both in the poll and in the comments. Meanwhile, here's more recent news about the Great Eldorado Polygamist Roundup:

• New York Times: Texas to seek stay of polygamist ruling
• National Review Online: Protection Racket
• Amarillo Globe News column: Texas applying cookie cutter justice to FLDS

Drug cartels targeting Mexican police

You know your crime problem is bad when your entire police department resigns in fear, as happened recently in Zirandaro, a Mexican city in southern Guerrero state. Reported AP:

Zirandaro was the second town in less than two weeks to be left without its police force as Mexico's drug cartels wage increasingly bold attacks against security forces. On Monday, the military took over a town near Texas after all 20 of its police officers were either killed, run out of town or quit.

Eight members of Zirandaro's police never returned to work after a May 13 shootout with gunmen that left a 32-year-old man dead, said Juan Heriberto Salinas Altes, the public safety secretary of the southern state of Guerrero.

The other seven officers — including the police chief — quit days later.

"The Zirandaro police quit the service because they feared the criminals would return to seek revenge," Salinas Altas told a news conference.

Despite heightened threats against police, most of the violence isn't between the government and drug cartels, but the drug cartels and one another. According to Reuters, "Some 1,300 people have died in Mexico's drug conflict this year but most of the deaths are still among rival traffickers." In other words, the government is not the biggest threat to Mexico's drug cartels; they're (rightfully) more fearful of one another, according to these data.

Will the government be able to reduce violence through brute military force? I'm increasingly doubtful. With police so clearly outgunned and the military stretched thin, one fears we could soon witness Mexico fall outright into the malaise of a failed state.

RELATED RECENT NEWS:

• Mexican military take over after local police quit in Villa Ahumada
• Police uncover drugs and luxury cars in Juarez
• Juarez police chief steps down amid threats
• Mexicans must live in fear as a price to pay for peace
• Shifts in cartel alliances fuel shootouts in Mexico

How do you make a lawyer cry?

I love the internets; they provide answers to all sorts of burning questions, like:

How do you make a lawyer cry?

How do you make a prosecutor paranoid?

How do you make a prosecutor cry?

How do you make popovers?

Many unanswered questions linger about the Great Eldorado Polygamist Roundup

Having had a few hours to ponder the implications of today's welcome ruling by Texas 3rd Court of Appeals that the seizure of kids from the YFZ Ranch wasn't justified (and to read what commenters and other bloggers had to say on the topic), here are some questions I'm still wondering tonight:

Overruling a judge on an "abuse of discretion" standard, by any measure a legal rarity, lays the blame for this entire fiasco at the feet of San Angelo District Judge Barbara Walther. How will she react? Will Judge Walther use the ten days given her by the 3rd Court of Appeals to hold a new round of "14 day hearings," or defer to the appellate court and just let the kids go home?

Any new hearings must respect the appellate judges' insistence that a) the entire ranch is not one household and b) that specific, immediate abuse must be shown to justify a seizure. From what I know, I'm not sure many, if any of the seized YFZ Ranch kids could be kept in custody under that standard. But in any event, the ball is definitely in her court. (Note to Judge Walther: Sometimes the only way to win is to not play the game.)

Also, how will this impact families not represented by Texas Rio Grande Legal Aid's motion? The same fact set basically applies to nearly every case.

CPS will likely appeal the 3rd Court ruling to the Texas Supreme Court. How are they likely to respond? I don't see any partisan trend that makes me think they'd be inclined to overturn the decision. Four of the six judges on the Third Court of Appeals are Republicans, including all three who signed their names to today's opinion. Are there ideological splits among Republican judges that would suggest the Supreme Court of Texas might rule any differently than these three R judges? If so, I cant put my finger on it.

Another question: What happens with families that already signed "service plans" before the 3rd Court ruling? Do they get to back out if CPS had no authority to coerce them into it in the first place?

In a similar vein: If CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as "fruit of the poisonous tree" from any criminal prosecutions?

On the legislative front, Texas CPS just got approval from the Senate Finance Commitee to hire 70 new unit staff (including 42 caseworkers), ten new attorneys, and seventeen other additional staff to handle the extra caseload from the Great Eldorado Polygamist Roundup (see the list of new positions on page 12 of this pdf). Will they continue to move forward with those new hires?

Will FLDS sue, or will they just go home and be happy things didn't turn out worse? The state might use discovery in civil proceedings to gather information for future criminal prosecutions, but on the other hand, they've already interviewed every person and vetted every document at the ranch. Would it be worth the risk to sue CPS (or for that matter, Sheriff Doran), perhaps in a federal section 1983 (civil rights) claim, or will they just let it drop?

Will the hundreds of ad litem attorneys who went to San Angelo for these hearings ever be paid for their time and expenses?

Will anyone from the state apologize to FLDS members for what happened? Governor Rick Perry? Attorney General Greg Abbott? CPS? Judge Walther? Sheriff Doran? Who, if anyone, among the decisionmakers responsible, will have the guts to stand up in the wake of this ruling and admit, "We were wrong"?

Finally, here's a key long-term question: What changes will result within FLDS as a result of this episode? Will they become a more insular, closed society, or will their forced interaction with the outside world convince them that they need to develop more attachments to and contacts with outsiders in order to protect their own rights and to improve the chances of their faith tradition's survival?

Let me know in the comments what you think about these questions, and what other topics remain murky or unanswered in the wake of today's ruling?

MORE QUESTIONS (5/23):

Why do so many media accounts say yesterday's ruling affects 48 mothers, but the opinion (and the New York Times) say 38? The error appears to have originated in the very initial AP story and was widely repeated, like lots of erroneous statistics in this case.

Why was the Dallas News using already discredited statistics in its editorials as late as Wednesday that dramatically exaggerate the number of teen moms and "lost boys," when other media have been reporting almost daily that those claims have been debunked because CPS claimed adult women were underage?

Relatedly, will this ruling convince the MSM to stop blindly repeating statistics from CPS's PR people that don't jibe with evidence presented in court? Simple due diligence by reporters would have prevented a lot of the worst obfuscation.

When will we hear more about/from Rozita Swinton, the hoax phone caller who began this fiasco? Why hasn't some reporter gotten her story yet? Who did she speak to besides the women's shelter, and when? Where did she get information about FLDS she gave during her "Sarah" impersonation?

Which MSM outfit will take on the investigative task of filing open records requests and investigating in full exactly what happened during the five day span between the initial hoax phone call and the raid. The most important parts of this story happened during that period, which is the part we still know the least about.

Photo LM Otero/Associated Press

3rd Court of Appeals: State had no right to seize YFZ Ranch kids!

See the initial report from AP. The court said the grounds for removal were "legally and factually insufficient." More at The Common Room, the Lone Star Times, and Messenger and Advocate.

UPDATE: Here's a more indepth account. The ruling only applies to 38 mothers represented by Texas Rio Grande Legal Aid, however the "nature of the ruling may eventually mean other sect children will be affected by it as well." Here's Brooke Adams' initial coverage from the Salt Lake Tribune. She reports that "hearings on the children's status, sheduled for this afternoon and Friday, have been canceled. District judges are conferring about what to do next."

MORE: Thanks to a reader for providing this link to the opinion.

SEE ALSO: coverage from the New York Times, the Washington Post, Dahlia Lithwick at Slate, the Deseret News, and the Houston Chronicle (also here).

AND MORE: Footnote 11 to the opinion rocks! "The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system."

I've been waiting to hear someone in authority say that since the day this fiasco began.

AND EVEN MORE: Sharon Griggs shares the text of the Dallas News editorial she wishes would appear in tomorrow's paper in light of the court's decision, but will not. I'm guessing the editorial, instead, will look more like this blog post from Michael Landauer, which says CPS was right to seize the kids and places blame on Judge Walther.

BLOGVERSATION (updated 5/23): UCLA law prof Eugene Volokh examines more potential legal difficulties for the Department of Family and Protective Services, but also says that despite the ruling, some FLDS members may still be in big trouble. Deborah King at The Huffington Post makes the bizarre claime that media coverage has been slanted in FAVOR of FLDS! Semicolon sees "A Ray of Sanity and a Troubling Future." GetReligion.org calls fundamentalist Mormonism "A belief system vindicated," however The Reaction disagreed, calling the court decision "illiberal." Protein Wisdom approved of the decision, calling CPS' actions "wildly unreasonable." A Girl in Short Shorts calls the decision a victory for American families, but wishes the court would ban FLDS women's "overachieving pompadours" and prairie dresses as fashion crimes. David Friedman updates the arithmetic about underage moms in this post at Ideas.

Austin lags on important third component of graffiti policy

A couple of weeks ago Austin PD launched its largest graffiti crackdown in recent memory, arresting 18 people, all adults, on felony and misdemeanor charges ("APD graffiti investigation sees 18 arrests," May 15), reported Channel 8 News:

A 10-month investigation led to the arrest of 18 people on graffiti-related charges.

An Austin Police Department detective carried out the investigation in an effort to charge those responsible, and cut down on property damage. It helped identify 130 suspects and at least two dozen graffiti gangs.

Police have worked together with citizens, neighborhood associations and business groups to identify new graffiti and identify taggers.

"In the past there was not a good way to identify them; and with the help of the neighborhoods and the people getting involved, it really enabled it,” Det. Kevin Bartles said. “Up until this point a lot of people had given up on it and they just accepted it.”

In 2007, the graffiti abatement unit painted over more than 16,000 pieces of graffiti in Austin.

It's estimated that graffiti in Austin causes more than half-a-million dollars in damage every year.

Once again government finds itself in a catch-22 with respect to petty crimes committed by many individuals, similar to the dilemma it faces in the drug war. The "trail 'em, nail 'em, and jail 'em" model works no better for reducing graffiti than pot smoking. After all, how many drug offenders quit for good after being arrested and prosecuted? You can expect no greater percentage to change their ways for petty crimes like graffiti, where incarceration serves little real, tangible deterrent because the likelihood of being caught is low.

The pasteup art at left, via Dirty Third Streets, was part of quite a bit of graff that went up in Austin the week following APD's big graffiti bust, so the deterrent effect of APD's sweep so far appears minimal.

Think how many resources were expended to achieve this result compared to the benefit: Even when announcing its "success" at busting 18 people, APD admits there are another 112 it knows about but cannot find evidence to arrest after a 10 month investigation.

Not only is arresting taggers hard to accomplish, using the justice system to punish graffiti feeds into the egos and anti-authoritarian presentiments of the tagger crowd. Austin PD claims to have identified 130 different taggers by their styles including the 18 they arrested, a feat which taggers must view on its face is a compliment - that somebody's paying enough attention to parse their stuff that closely. Playing cat and mouse with law enforcement feeds into a cycle of gamesmanship taggers enjoy, and bored teens with a spray can will inevitably win those matchups, just because there are too many of them and police have better things to do. My guess is APD has not identified close to all of Austin's taggers. Not long ago Corpus Christi police claimed to have identified more than 100 taggers in that much smaller town, and Austin is filled with graffiti and pasteup art.

Despite the aggregate cost of property damage, it's still hard for me to view an individual, isolated graffiti act as felonious, and anyway, it's a fool's errand to try to stop graffiti by taking graff writers "off the streets." There are too many of them, they're too hard to catch, and the penalties don't keep them behind bars long enough to matter, even when a felony is charged, because prisons are overcrowded with much more dangerous folks.

I've argued before that a misdemeanor charge is plenty, particularly if cities combine arrests with two additional approaches: Immediate cleanup and provision of public spaces to young artists.

Like several other Texas cities, Austin is putting significant resources into graffiti cleanup which is a bigger deterrent when done immediately, than the (remote) possibility of punishment. Graff writers will become discouraged if a night of fun and risk results in driving by the next day and seeing their work already removed. Part of the fun for graff writers is to see how long their work can "ride" at a given spot; as public policy matter it's best if that is a matter of hours instead of days or longer (Call 311 in Austin to request graffiti cleanup.)

The rapid cleanup approach can be implemented with much more certainty than punishment of the individual through the judicial system. Austin cleans up 16,000 graffiti sites per year, which doesn't get all of it but amounts to 43 sites per day, a significant effort. The city gets a lot of additional bang for the buck, IMO, when it spends money on cleanup compared to the cost of a criminal investigation. (Eighteen arrests resulting from more than 16,000 crimes isn't a very good ratio.)

The piece Austin doesn't do as well on is providing support and public spaces for young artists - not the scrawled gang tags, but those with real artistic talent, of which there are more than a few among graff writers, possibly even among those arrested. Austin should do a better job of giving them would-be graff writers legal and publicly acceptable outlets. In Australia, Europe, Mexico, and a few US cities including El Paso communities have made efforts to draw talented young artists out of the shadows, giving them legal graff spots or even turning over entire blocks to street artists (with residents' permission and cooperation).

We live in an information age where graphic artists' skills are in high demand. Hell, even the city routinely needs those services. To prosecute youthful talent instead of cultivate it IMO misses an opportunity.

All this to say, I'm mostly encouraged by Austin's approach. It's good to arrest the most frequent offenders, if you can catch them, and I'm glad the city council's commitment to funding graffiti cleanup is showing results. But if the police department spent ten months identifying 130 individual taggers and a couple dozen tagger crews but still can't arrest most of them, maybe they should try letting the Parks Department or some youth services division attempt to open lines of communication. In addition to enforcement and cleanup, I'd like to see the city creating legal venues around town and more opportunities for young artists.

That approach won't work with every graff writer, but whenever it does it'd be cheaper and more effective than prosecuting and jailing them by a country mile, not to mention generate more public art in invited spaces.

See past related Grits' posts:

• Toward a restorative graffiti policy
• Graffiti solutions: A cost benefit analysis
  
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
  
• Mexico prevents graffiti by encouraging it at Azteca stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings
• Paint Responsibly: Museum offers hands on graffiti exhibit
  

Lufkin News Editorial: Governor Perry should back innocence commission

More editorial support for an innocence commission in Texas, this time from the Lufkin News ("Serving Justice," May 22):

Gov. Rick Perry says Texas does not need an innocence commission, which, he asserts, would add an unnecessary bureaucracy to state government. But the facts overwhelmingly point the other way. We urge the governor to take another look at establishing a commission that studies ways to bring greater fairness to the state's justice system by examining its mistakes.

Perry's leadership would greatly improve chances that the Legislature would create and finance an innocence commission next year. Also, Perry's backing would send a message to the world that Texas is serious about correcting mistakes that send innocent people to prison and leave criminals on the street.

As it stands, 33 Texans have been exonerated by DNA evidence, all but three occurring after 2000. There have been other exonerations during that period as well, including more than a dozen residents of Tulia who were wrongly convicted on the false testimony of a single law enforcement official and bogus prosecution of a West Texas district attorney.

Texas has paid out more than $8 million since 2001 to dozens of innocent people convicted of and imprisoned for crimes they didn't commit. Those people spent from four to 27 years behind bars for crimes someone else committed.

If those facts and figures aren't persuasive enough, then the governor should listen to those closest to the justice system, including some fellow Republicans. Among those endorsing an innocence commission is Texas Supreme Court Justice Wallace Jefferson, who said, "The state has an interest in protecting its citizens from convictions when citizens are innocent."

"Over 30 people have been exonerated, and there is no institutional response to those incidents," Jefferson said on Tuesday. "When this happens as frequently as it seems to happen in Texas, there ought to be some examination of what went wrong in those cases." ...

If any state needs an innocence commission dedicated to preventing people from being sent to prison for crimes they didn't commit, it is Texas. That much is clear. No one who professes to love justice should be satisfied with the status quo that is stealing time and money from the state and its residents.

As the state's chief executive officer, Perry should use his moral and fiduciary duty to help establish such a commission.

Urinalysis another example of forensic science with subjective results

The rate of positive results on urinalyses at the Bexar County probation department jumped fourfold after the private lab doing the tests changed their procedures in February, reports KSAT in San Antonio:

On Monday, the president of the Central Texas Association of Public Employees and a Bexar County probation officer said the high numbers of positives were alarming."Confirmation has come back to the department and we're concerned about those, and also, a lot of defendants on their own have gone out and had hair follicle tests in other labs to confirm their suspicions," Sheri Simonelli said.

Here's another great example of the subjectivity of forensic science. In this case, there exist no concrete standards for how to measure urinalysis results. Reports KSAT, "Jeff Warner, the owner of Treatment Associates, said a test used before a February switch wasn't aggressive enough, and has led to a 35 percent jump in positive drug tests. He said the county's probation department was using an outdated test and an unguarded urine specimen process."

Normally one doesn't think of judging a scientific metric by whether it's "aggressive," but whether it's "accurate." I have no way of knowing which standard lies closer to the truth. But if a change in (unregulated) testing protocols resulted in such dramatic a difference in results, the disparity demonstrates once again how large the error rate can be in common forensic science techniques that most people consider reliable.

Some on Dallas News staff "aren't interested" in correcting false media impressions about YFZ raid

Among the Dallas News editorial board members, Sharon Grigsby has been the only consistent voice questioning the state's actions in the Great Eldorado Polygamist Roundup. Reacting to news that CPS has been wrong so far regarding the age or pregnancy status of all the "disputed" mothers, she writes today on DMN's Opinion blog that "Some on our staff have said they aren't interested in my continued posts on this topic." I replied in the comments that this observation:

confirms my sense that the MSM is less interested in focusing on information that's not full of salacious accusations against weirdo polygamists. God forbid y'all actually report the truth instead of whatever phony accusation CPS ginned up that day.

Pretty amazing that your colleagues would admit it, though. The facts on which they based their opinions were invalid, but they don't want to revisit their conclusions. I'm asking myself "Why?", but can't come up with a single good reason offhand besides some sort of religious bigotry. What else could possibly explain journalists' callous indifference to truth?

What do you think? Why does the mainstream media appear so prepared to trumpet lascivious allegations against the residents of the YFZ Ranch, but don't seem equally concerned when those charges routinely fall through?

Why choose life? Exploring possible reasons for the Quintero verdict

By all accounts the late Rodney Johnson was one of Houston's finest police officers, and a jury yesterday gave his murderer life without parole, leaving many in Houston wondering why the death penalty wasn't imposed in the wake of the tragedy.

Elsewhere in the United States and even in Texas, death sentences are becoming increasingly rare, but they're still handed down with enough frequency in Houston for the media and local court watchers to express shock (and in some cases, dismay) that a jury gave copkiller Juan Quntero life without parole instead of a death sentence. The Houston Chronicle reported that:

It sounded like a foolproof recipe for a death sentence: an admired and respected police officer shot in the back by an illegal immigrant whose history included criminal convictions for drunken driving and indecency with a child as well as deportation.

But a Harris County jury decided otherwise, shocking most people who paid even the slightest attention to a trial in which the shooting itself was never an issue and the defendant's character offered little to praise.

Danalynn Recer, one of the attorneys for Juan Quintero, said the lesson to take from the jury's decision to give him life without parole instead of death is that the people of Harris County are far from the bloodthirsty yahoos of national caricature.

Said Johnson's sister to the jury after the verdict in her moving victim impact statement (see the video online here), "You had another man's life in your hands, as he did. He chose to take it, you chose to spare it. That's being human."

Johnson's wife, though, didn't see it that way: "My husband's life meant nothing — that's what I felt," Joslyn Johnson, also an HPD officer, said of the verdict.

Personally I'm not sure where this idea comes from that the death penalty is a harsher punishment than life without parole. Everyone dies, but not everybody spends their whole life locked up in a cage.

The Chronicle published an article this morning by Mike Tolson, "Quintero verdict baffling to many," interrogating the question of why a death-qualified jury sentenced Quintero to life without parole (LWOP). One theory is that the LWOP option makes it less likely the death penalty is imposed. Reported Tolson:

Texas added the life-without-parole measure in September 2005. Over the past three years, juries in the state have returned death sentences in 14, 11 and 15 cases, respectively. The yearly average over the previous decade was 34, and the lowest previous total was 23.

Another possibility, wrote Tolson, is that the public generally supports capital punishment less, writing that, "death sentences in the United States are in decline. The total has dropped steadily from 326 in 1995 to just over 100 in 2007. Abolitionists claim the public taste for capital punishment has diminished because of exonerations and other well-publicized shortcomings of the criminal justice system." (Like those quoted in the story, though, I seriously doubt that's the reason.)

University of Houston law professor David Dow credited top-notch lawyering by defense counsel for the verdict, citing an approach the educated the jury throughout the process on mitigating factors aimed at the sentencing phase of the trial:

"I think the lesson in this case is that the lawyering matters a lot. The defense strategy of front-loading all the evidence about his mental problems in the guilt/innocence stage (of the trial) was a brilliant legal tactic. It had the jury thinking from the first stage of the case that there is something wrong with this person. And even in Harris County, the death penalty capital of the world, when the jury thinks there is something wrong with a person that interferes with his judgment, they will be willing to not impose the death penalty."

Another theory is that the case was won at jury selection, or else that this particular jury was "quirky" or different from most:

death penalty expert Adam Gershowitz of the South Texas College of Law also was unwilling to make too much of the verdict other than it was unexpected.

"It's very surprising," Gershowitz said. "I find it hard to believe that this case is the result of that trend (of fewer death cases). I think it has to be the result of this particular jury. If they seated another jury tomorrow, it could come to a different conclusion."

But all these possibilities ignore our only direct source about why the jury did what they did, the jurors themselves: "I believe he has value," said juror Letty Burkholder, of Houston. "He's loved by many of his family and friends, and that was number one. I felt like he has potential." Nine other jurors agreed. Perhaps that's reason enough to temper justice for Quintero with mercy.

Whatever the reason for the verdict, unlike if the jury had gone with the death penalty, the family will not have to endure years of habeas appeals and on-again, off-again execution dates commonly associated with death row cases. Juan Quintero is locked up for good, and now, with luck and God's grace, his family, friends and the community can begin to heal and move on.

RELATED: For prosecution and defense blog perspectives, respectively, see The Quintero Verdict, from Life at the Harris County Criminal Justice Center, and Life for Quintero at Defending People. See also a good discussion at Capital Defense Weekly.

MORE: From the Chronicle, even Quintero was surprised by the verdict. Legendary Houston defense lawyer Richard "Racehorse" Haynes credited the results, as have many others in recent days, to top-flight lawyering by Quintero's attorney Danalynn Recer, who in the interest of full disclosure is a former client and a classmate of mine and my wife's from our college days at UT.

Youngest of alleged YFZ teen moms not really pregnant

It turns out no 14-year old girls were found pregnant at the YFZ Ranch during the Great Eldorado Polygamist Roundup, despite repeated public statements to the contrary by the Department of Family Protective Services. From the Deseret News:

A lawyer for a 14-year-old girl that is on a list of so-called "disputed minors" said this morning she is not pregnant as Texas child welfare authorities have alleged.

"My client does not have children. (She) is not pregnant. She's the youngest on the list of disputed minors," said Andrea Sloan.

The judge hearing the case objected, saying that was not what the hearing was about. But Sloan pressed forward.

"The department is communicating to the public that there are 14-year olds who are pregnant," she said.

Texas Child Protective Services caseworker Ashley Kennedy said that investigations were still ongoing.

The bombshell was dropped during the hearing involving Adeline Barlow, 38, the mother of a 10-year-old and the 14-year-old.

So now CPS is zero for 10 when they "dispute" FLDS women's claims about their ages or pregnancy status.

One notices, though, that we're not seeing the same national headlines walking back false claims by the agency that 60% of teen girls at the YFZ Ranch were pregnant or had children. These step by step retractions so far have garnered far less attention than the original false allegations.

Thanks to commenter KBP who pointed out the story in one of his Johnny on the spot updates in Grits' comments.

NBA official agrees to rat, if he can find somebody who hasn't already ratted on him

While it's not a Texas case, as a sports fan I'm fascinated by the recent turn of events in the prosecution of former N.B.A. referee Tim Donaghy, who faces allegations that he betted on NBA games he refereed.

Donaghy, though, could be transformed through the magic of a federal 5K agreement from a cheating sleazeball gambling addict into the state's star witness - against whom, we cannot say yet. Doc Berman points to this New York Times coverage (5/20) of Donaghy's decision to become a snitch to lessen his prospective federal sentence:

A lawyer for the former N.B.A. referee Tim Donaghy suggested in court papers Monday that games had been influenced by relationships among referees, coaches and players, and that other factors had “prevented games from being played on a level playing field.” The league immediately denounced the charges as unfounded.

According to documents filed by the lawyer, John Lauro, Donaghy provided law enforcement officials with information about N.B.A. matters outside of the government’s original investigation. That included information about the gambling activities of other referees and an instance in which confidential information was suspected of being passed from a referee to a coach.

Lauro filed a letter and several attachments as part of a sentencing memorandum, which is to be considered by United States District Judge Carol B. Amon. Donaghy, who pleaded guilty last August to two felony charges, is to be sentenced July 14. Donaghy could face up to 25 years in prison and a $500,000 fine for receiving payments for inside information on N.B.A. games, including some that he officiated. But he is expected to receive a much lighter sentence because he cooperated with the authorities.

In a footnote to the document, Lauro suggested that the N.B.A. might have “pressured” the United States attorney’s office “into shutting down this prosecution to avoid the disclosure of information unrelated to Tim’s conduct.”...

The N.B.A. dismissed all of Lauro’s charges without responding to specific statements. “The letter filed today on Mr. Donaghy’s behalf contains an assortment of lies, unfounded allegations and facts that have been previously acknowledged, such as the fact that certain N.B.A. referees engaged in casino gambling in violation of N.B.A. rules,” Joel Litvin, the N.B.A. president for league and basketball operations, said in a statement. “The letter is the desperate act of a convicted felon who is hoping to avoid prison time, and the only thing it proves is that Mr. Donaghy is no more trustworthy today than he was when he was breaking the law by betting on N.B.A. games.”

In his letter, Lauro wrote that Donaghy “provided substantial assistance” to the government and asked the judge to impose only probation. “We believe that Tim’s information will lead to future reforms that will change the way in which the N.B.A. conducts itself,” Lauro wrote....

Berman takes this news to mean that Donaghy's defense may put the NBA itself on trial. I'd interpret it to mean Donaghy hopes to cut a plea deal, and let the feds put somebody else, anybody else, on trial. So far, though, they appear to have already decided to make him the fall guy.

Here's a terrific example of how law enforcement's attempt to "flip" an informant can thwart justice instead of further it. I seriously doubt from the allegations made public so far that Donaghy has information other NBA referees bet on games, or committed anywhere near the level of malfeasance he himself displayed. But the possible 25 year federal sentence gives Donaghy only one avenue to shorten his prison time: Becoming an informant against somebody else.

Mr. Donaghy probably figures what's good for the goose is good for the gander. CBS News reported over the weekend that Donaghy's lawyer "criticized federal prosecutors in the court papers for agreeing to a plea deal with Donaghy's two co-conspirators James Battista and Thomas Martino on the eve of their trial last month. He contends that they were charged with far more serious offenses stemming from the gambling scheme than Donaghy."

So Donaghy watched as the feds allowed more serious offenders to get light sentences in order to prosecute him because of his (relative) celebrity, and now he wants to rat out NBA types higher up the food chain in exchange for a lighter sentence, though so far little of the activity he's alleged seems overtly criminal. As this Orlando Sentinel columnist wrote, "The problem with all these unnamed coaches, referees and players is that the accusations cast doubt on a lot of innocent people who haven't been involved in any such activity."

However, Donaghy's not solely to blame for that outcome. His decision is entirely rational in the context of a federal judicial system that goes easy on serious offenders if they'll rat out the small fry. The "5K" informant exception to federal sentencing guidelines, combined with prosecutors publicity-driven use of that provision, contributes greatly to this situation. Nearly equally to blame is a media culture that encourages such decisions and eggs on each new, salacious allegation.

BTW, while we're on the topic of professional b-ball, let the haters and carpetbaggers whine about it, but: Go Spurs!

Facts continue to erode overhyped statistic on YFZ teen moms

Have those watching the civil litigation over the Great Eldorado Polygamist Roundup (see The Common Room for blow by blow coverage) noticed that, of the 26 "disputed minors" that made up the bulk of alleged teen moms, every time one goes to court, CPS admits they're really an adult?

I'd already concluded the statistic was "phony," a slanted calculation resulting from a concerted DFPS PR campaign, and slowly but surely that early assessment is bearing out.

We're up to five now who were misclassified adults, while none of the "disputed" women so far has turned out to actually be underage.

If this pattern continues and all the disputed minors turn out to be telling the truth when they claimed to be adults, that would leave the number of alleged teen moms on the YFZ Ranch at between 2 and 5 out of 27 girls, a lower percentage than you'd find among the general public in Texas.

More on disputed minors from Brooke Adams at The Plural Life here and here.

UPDATE: A commenter points to a liveblog from the San Angelo Standard Times reporting five more "disputed" minors were deemed adults today. Can't tell how this figure jibes with earlier counts, but for those keeping score at home, the tally is approaching nine or ten to zip in favor of the FLDS women's word vs. CPS' "eyeball test" for determining "disputed" ages.

NUTHER UPDATE: Brooke Adams reports that we're down to 17 "disputed" moms (from 26) after yesterday's hearings, and that one woman CPS claimed was a minor (using its eyeball test) turned out to be 27 years old.

Senator gives personal story of DFPS drugging foster kids

I learned something about Bryan state senator and Finance Committe Chairman Steve Ogden today that I didn't know: He mentioned in response to testimony before his committee that he'd been a foster parent and adopted the foster child into his own family. When the child came to them, said Ogden, he'd been prescribed all sorts of medications related to behavioral disorders that the senator and his wife didn't think were necessary. He said they had all sorts of trouble getting the Department of Family Protective Services to approve taking the child off these medications, however, because they viewed psychotropic medications as harmless and feared liability if the drugs weren't administered.

This issue of overprescribing psychic drugs to kids by DFPS reaches far beyond just Ogden's example. (Not to mention some of the drugs just don't work.) The senator's story reminded me of this newsclip about a comptroller's report that made the blog rounds recently when all the YFZ Ranch kids were first ordered into DFPS care:


Makes you wonder how many of the YFZ Ranch kids have been prescribed psychotropic meds so far, and how many will be?

Support grows for Texas innocence commission, but other reforms needed too

To judge by the public attitudes of the top state officials, Texas may enjoy an important opportunity in the next legislative session to pass key reforms preventing more wrongful convictions. The Fort Worth Star Telegram's Max Baker featured a story Sunday ("Top Texas jurists support idea of innocence commission," May 18) dissecting the politics of a possible "innocence commission" in Texas. Here's an overview from Bakers' assessment of the lay of the land:

Governor Rick Perry: Opposes an innocence commission because it creates a new layer of "bureaucracy."

Lieutenant Gov. David Dewhurst "said he supports creating a commission. His staff said he has cleared the way for a Senate interim study committee to look into the commission's charge."

House Speaker Tom Craddick: Neutral, expects the 81st Lege to debate the issue.

Supreme Court Chief Justice Wallace Jefferson: Supportive, is "calling on state lawmakers to find money" for an innocence commission.

Court of Criminal Appeals Presiding Judge Sharon Keller: Qualified support.

Senate Criminal Justice Committee Chairman John Whitmire: Expressed support at recent "innocence summit." Sen. Bob Deuell (R-Greenville) also spoke favorably of the idea at the event.

House Criminal Jurisprudence Committee Chairman Aaron Peña: Publicly supportive, but his Democrat-dominated committee deep sixed Sen. Ellis' innocence commission bill in 2007.

Texas District and County Attorneys Association: Opposed. Said lobbyist Shannon Edmonds of his membership, "They don't trust the people pushing it, and we need to overcome that to make progress in this area." (Hmmm, I thought Dallas District Attorney Craig Watkins supported the idea and numbered among Edmonds' membership. Apparently DAs don't even trust one another!)

I actually understand the Governor's concerns about creating a new layer of bureaucracy. This idea could be a great success or an abject bust depending on how the commission's role is defined, who's on it, and what authority it's granted. One one hand, there are entire categories of old cases like arson that require systematic review. OTOH, if the commission is not empowered to liberate the innocent and can only "recommend" reforms, that wouldn't necessarily do much.

That said, if the Governor and innocence commission critics accept that Texas has a problem with convicting innocent people, that stance IMO then obligates them to support procedural reforms that might prevent such travesties on the front end. The Justice Project has identified eight key reforms that grow out of the examples of recently exonerated people. Most require no new bureaucracy at all:

• Improving Eyewitness Identification Procedures
• Electronic Recording of Custodial Interrogations
• Improving Standards for Admissibility of Snitch Testimony
• Expanding Discovery in Criminal Cases
• Improving Forensic Evidence Testing Procedures
• Expanding Post-Conviction DNA Testing
• Ensuring Proper Safeguards Against Prosecutorial Misconduct
• Ensuring Standards for the Appointment and Performance of Counsel in Capital Cases
  

For folks like the Governor who believe there's a problem, are "committed to providing a fair criminal justice system," but don't want to create any "new bureaucracy," these solutions make a lot of sense and deserve equal attention. There's certainly no need to wait for an "innocence commission" to recommend them.

RELATED: The Lufkin News urges Governor Perry to reconsider his opposition to an innocence commission.

Make Schleicher County pay its own portion of YFZ raid costs

As individual custody hearings continue this week in San Angelo, down the road in Austin this morning the Texas Senate Finance Committeee at 10 a.m. will hold a hearing that will include discussion of how the state will pay for the Great Eldorado Polygamist Roundup.

(Here's a link to the archived video from this morning's hearing.)

So far, the state has spent more than $5.3 million, and expects to spend more than $21 million by next year. And that doesn't include extra costs the county incurs because of court hearings, costs for ad litem attorneys, costs of the raid and other expenses.

The state has to pay CPS' bills, but I'd prefer the Legislature NOT bail out Schleicher County on this fiasco. IMO they should be subject to Gen. Colin Powell's "Pottery Barn Rule" ... you break it, you own it. Sheriff Doran "broke" this case, launching the raid based on a hoax that law enforcement either knew wasn't real or didn't bother to investigate: let his department and the county own the extra costs.

UPDATE: I couldn't tell which state senator made the comment, but someone on the dais suggested that there were "valuable" assets on the YFZ Ranch, and the state should look to seize them to pay for CPS costs on the grounds that "the taxpayers shouldn't have to pay for this."

Hmmmm. WHY, exactly, shouldn't the taxpayers pay for it? Bumbling state bureaucrats got us into this mess, why shouldn't government foot the bill? I don't see that argument at all. Even if criminal charges are ultimately filed (so far, the original rape allegation was a hoax and there are no criminal charges), no one thinks everyone at the ranch engaged in criminal conduct, so how could they justify seizing every home?

Several problems with this come to mind: First, the ranch is already owned by a court controlled trust from litigation in Arizona and Utah, so somebody beat them to the punch! Also, though I don't know much about CPS law, I've never heard of asset forfeiture based on a child protection case. (Readers?) Is that even done? And given the bogus origins of this case, the asset seizure arguments might be more difficult to make than the senator presumed.

NUTHER UPDATE: A judge from Tom Green County estimated that court costs for the YFZ case may run $2.25 million over the next year, but a) a committee discussion revealed that number was lowballed, and b) the figure does not include ANY compensation for ad litem attorneys appointed to work in the case. In addition, said the judge, many attorneys appointed in the case "may not have known" that the courts "expected" them to work pro bono (!).

The current line item for attorney compensation in the proposed budget is zero, causing Chair Steve Ogden to tell the judge they need to "rework their budget." "Everybody involved here has a right to good counsel," said Ogden, "and I'm not sure you're going to get that if everybody has to work for free." Good for him, for saying so.

All costs for appointed attorneys under current law are paid solely from the counties, and there's no mechanism in place for the state to reimburse them. Maybe the best way for ad litem attorneys to put a stop to the worst of the state's shenanigans in this case would be simply for all of them to bill the county for their legitimate time and expenses.

LBB suggested a number of avenues for reimbursing county expenses. First the Governor's office, they said, has grant funds available that could be most immediately redirected, though of course that would take funds away from other worthy programs. The Governor could possibly declare an "emergency" and use emergency response funds, but it's not clear, they said, if this incident qualifies as an "emergency." It's also possible that funds from the Governor's office allocated for "criminal justice planning" could be used for these purposes, as well as "county essential services grants."

Chairman Ogden asked if the Legislature had the authority to simply give money to a county because it ran over budget. LBB replied that the easiest method would be for the Governor's office to pay for the costs, and left hanging in the air the question of whether the Lege could pay for this or not. He also suggested raiding the crime victms' compensation fund for extra cash.

Ad litem attorneys in the YFZ case: Send in your billable hours and expenses. All of them. Making local government bear the full costs of their unwise decisions might be the best way to hold them accountable and encourage them to quickly resolve cases where no specific abuse has been alleged.

DNA cleared them, but they'll never be free

That rarest of rarities: A must-read CNN story telling the sad story of Willie Fountain, who was cleared by DNA evidence five years ago of an aggravated rape charge. Today he's homeless and recently has disappeared. Also, here's an earlier related story featuring James Woodard, another Dallas man who was recently released after spending more than 27 years behind bars for a crime he didn't commit.

See these individual quotes and short status reports of what happened to other innocent Dallas men released from prison after being exonerated by DNA testing.

RELATED: See the website of the newly created Life After Exoneration Program

Author reacts to forensics post

I forwarded the Grits post on forensics from earlier today to Roger Koppl, who authored the Forbes magazine article it was based on. He was gracious enough to react via email, so with his permission I thought I'd post his response as a stand-alone:

Thanks for sending me an email notice of your blog and thanks for the blog. Please allow me to note that I did say in the Forbes piece, “Creating the right to a forensic expert for the defense would help restore the imbalance in scientific firepower that too often exists between prosecution and defense.” I have been calling for forensic defense experts since my first publication on these issues in 2005. But I must admit I have only recently come to see it as the lynchpin reform.

IMHO you need more than one knock-down reform. You need a suite of interlocking reforms. I still think I hit the right mix in my 2005 paper, which is attached. If I did get it right, however, there are still two big questions needing attention. 1) How do you translate your design principles into measures that can be implemented by policymakers? 2) What is the right sequence of reforms?

I’ve been working a lot on the first question, in part through my NSF-funded experimental research. That research seems to show that you need triplicate testing, not merely duplicate testing. I have given serious thought to the second question only recently, when I realized that you need to start with forensic defense experts. I made that argument earlier this month at a DNA seminar for public defenders.

I strongly agree with your desire to make forensics a part of the adversarial process, rather than hoping to somehow lift it above the adversarial process. I think you are quite right to say “forensic science isn't neutral, no matter who performs it.”

Thanks for letting me respond in such detail to this morning’s very welcome blog on forensics.

Cheers,
Roger

Koppl also forwarded me a copy of his 2005 paper, "How to improve forensic science" (pdf) from the European Journal of Law and Economics, in which he declared that "Forensic workers have inadequate incentives to produce reliable analyses of police evidence," and suggested breaking up the "monopoly" held by the state on forensic analysis. More of his research on the topic is linked here. Thanks, Roger, for the extra analysis and background.

Children's Defense Fund calls on Congress to intervene on youth prisons

Read Marian Wright Edelman's column at the Huffington Post calling to expand recourse for youth who are abused in youth lockups, citing Texas and Mississippi as her prime examples. See also Edelman's recent testimony to Congress (pdf) regarding "The Prison Abuse Remedies Act of 2007."

Use adversarial system, redundancies to prevent wrongful convictions from faulty forensic science

The main solutions to faulty forensic science causing convictions of innocent people may lie, I've long believed, in using the adversarial system to create redundancies in forensic testing. It's needed because, for the most part, forensic science just isn't as accurate as most watchers of TV crime dramas may believe. A columnist at Forbes earlier this month ("What's wrong with CSI?,"May 2), Roger Koppl, wrote that:

to judge by the most comprehensive study on the reliability of forensic evidence to date, the error rate is more than 10% in five categories of analysis, including fiber, paint and body fluids. (Meaning: When the expert says specimen X matches source Y, there's a 10% probability he's wrong.) DNA and fingerprints are more reliable but still not foolproof. The 1995 study, in the Journal of Forensic Sciences, looked at proficiency tests labs take to see whether their work is sound.

More recent studies have also shown problems. Though a 2005 study in the Journal of Criminal Law & Criminology suggests a fingerprint false-positive rate a bit below 1%, a widely read 2006 experiment shows an alarming 4% false-positive rate.

Yet the public sees errors as gross anomalies. Like the time the FBI wrongly linked an Oregon attorney named Brandon Mayfield to the 2004 Madrid commuter train bombing that killed 200 people. The FBI had claimed a 100% match between fingerprints found at the scene and Mayfield, who was held for two weeks in federal custody. When the Spanish National Police got the real perpetrator, an Algerian named Ouhnane Daoud, the FBI had to admit its mistake. Mayfield accepted a $2 million settlement from the government.

Another debacle, this time involving DNA testing: Josiah Sutton served four and a half years for rape after the Houston Crime Lab tied him to crime-scene DNA. The lab was later found to be rife with problems, including a leaky roof that let rainwater contaminate evidence. Sutton was proclaimed innocent in 2004 and awarded $118,000 in reparations the next year.

Forbes editor William Baldwin (no bleeding heart liberal), declared in response to these data that, "When it comes to science, judges are steeped in a long tradition of welcoming junk into the courtroom." It's a hard point to argue. When even fingerprint matches aren't 100% reliable, and some forensic techniques yield 10% error rates, that means quite a few innocent people may be accused by faulty forensics, allowing actual offenders to go free. Koppl's data about errors in the softer nether regions of forensic science reminded me of this recent assessment:

At the "Actual Innocence" conference in Plano last month [in April 2008], former executive director of the National Forensic Technology Science Center Bill Tilstone told the audience that most "pattern evidence" - handwriting analysis, shoe and tire print comparisons, etc., has no research-based foundation at all. Much of forensic science is "soft" science, he said, that at best has not or even cannot be comprehensively tested for accuracy.

Given the subjectivity of much forensic analysis, IMO the key to minimizing forensic errors lies in redundancy, an idea Mr. Koppl also embraced.

The core problem with the forensic system is monopoly. Once evidence goes to one lab, it is rarely examined by any other. That needs to change. Each jurisdiction should include several competing labs. Occasionally the same DNA evidence, for instance, could be sent to three different labs for analysis.

This procedure may seem like a waste. But such checks would save taxpayer money. Extra tests are inexpensive compared to the cost of error, including the cost of incarcerating the wrongfully convicted.

He's on the right track, but I think Mr. Koppl hasn't quite yet found the best solution. The most efficient way to create redundancy in forensic science is to use the adversarial system. Instead of police sending evidence to three different labs, two is plenty if we simply provide funds for defense experts whenever government crime labs analyze evidence.

As Koppl notes, such redundant checks promote accuracy, justice and save taxpayer money in the long run by reducing overall error. How much would error be reduced? Here's how the math works:

Say a method of forensic analysis yields a 10% error rate, to use an example from the high end. If a second analyst examines the evidence, the redundancy diminishes the probability of error from 1 in 10 to 1 in 100 (.1 x .1 = .01). In the case of fingerprints, if the error rate currently is 1%, allowing redundant defense analysis would reduce the possibility of error to just one-one hundredth of 1% (.01 x .01 = .0001).

What's more, if the defense hires the second expert, it avoids questions of vendors coming up with similar results to cater to the same customer's agenda, making it more likely evidence will be thoroughly vetted and more accurate results discovered.

Recently Sen. John Whitmire identified one of the problems confronting the much-maligned Houston PD crime lab as its lack of neutrality, opining that the forensic lab should be controlled by a "neutral" entity. But forensic science isn't neutral, no matter who performs it. Rather than attempting to create a single neutral entity, IMO it makes a lot more sense to use the existing structure within the adversarial system to mandate redundancies and improve accuracy.

UPDATE: The author of the Forbes article, Roger Koppl, reacts.

See related recent Grits posts:

• Are crime lab reports "testimonial" documents? SCOTUS will decide
• Many arson convictions based on invalid science
• Arson convictions may be next venue for innocence claims
• More from Texas Innocence Summit
• Innocence summit drew officials, opinion leaders from around state
• Washington Post explores frontiers of DNA science
• Proving innocence, solving cold cases frequently depends on DNA collection and preservation
• When DNA exonerations end, innocence problems will continue
• Beyond the iceberg's tip: Dallas to extend innocence investigations beyond DNA cases
  
• CSI-Houston would be dark comedy

California may follow Texas shutting down drug task forces

With large cuts proposed at the federal level and a state spending crisis, in California a state Senate subcommittee last week approved a plan to eliminate funding for that state's system of regional narcotics task forces. According to The Daily Triplicate (May 16):

Included in this half-billion-dollar decision is all money for a rural law enforcement program that gives $500,000 a year to each of California's 37 sparsely populated counties, as well as $29 million to combat methamphetamine.

"It's not just a drop in the bucket," [Del Norte County Sheriff] Wilson said. "This money really becomes critical for small departments like ours."

He said the $500,000 Rural Sheriff's Grant makes up a large portion of his office's funds.

When Governor Rick Perry shut down Texas' system of drug task forces in 2006, we heard similar cries that the move would cripple law enforcement. That hasn't come to pass, though (in some places enforcement actually improved), because the task forces focused more on arresting users than pursuing "big fish." I'm willing to bet California could get by just fine without them, too.

Dallas court identifies "deadly weapon" that can't kill you

According to the Center for Disease Control, reported The New York Times ("Prison for man with HIV who spit on police officer," May 16), "Although there have been rare cases of transmission through severe bites, 'contact with saliva, tears or sweat has never been shown to result in transmission of H.I.V..'”

Even so, a homeless man was sentenced to 35 years in prison in Dallas for "harassing a public servant with a deadly weapon: his saliva." What's more, "Because of the deadly weapon finding, the man, Willie Campbell, 42, of Dallas, will not be eligible for parole until he has served half his sentence."

So to flesh out the logic, you can't contract HIV from spit, but spit is a deadly weapon because it might transmit HIV? Huh? I'm amazed Dallas DA Craig Watkins' office pursued that line of argument, and more amazed still that a judge bought into it.

According to Chapter 22.05 of the penal code, an offender engages in "deadly conduct" if "he recklessly engages in conduct that places another in imminent danger of serious bodily injury." So if the Center for Disease Control says saliva "has never been shown to result in transmission of H.I.V.,” where, exactly, is the "imminent threat of serious bodily injury"?

Mr. Campbell sounds like a seriously disturbed person, a homeless alcoholic and possibly mentally ill to boot, to judge by his screaming outbursts in the courtroom." Even so, although spitting at an officer was both obnoxious and assaultive, on its face the act doesn't seem to meet the definition of "deadly conduct."

In any event, unless some appellate court decides differently, add "spit" to the list of bizarre items deemed deadly weapons under Texas' statute.

MORE: From Simple Justice.

Crime and Punishment in Mexico: The big picture beyond drug cartel violence

While the YFZ Ranch mess out in West Texas has gobbled up much of this blog's routine bandwidth, the hot war in Mexico between the government and major drug cartels, not to mention between the cartels and one another, appears to be spinning wildly out of control. The outcome of this struggle has huge implications for security in Texas, and not just for the border region.

Six police officials were assassinated in a week's time recently, including the head of the federal police, the highest ranking law enforcement officer in Mexico. The main suspects in the federal police chief's murder are other federal police officers with ties to the Sinaloa cartel. Such high-profile police killings have been going on for a while now, but their frequency and boldness has grown exponentially. The Chicago Tribune reports reported that:

Mexican authorities said Monday that Millan Gomez's slaying was an inside job organized by the Sinaloa cartel. The murder has bolstered skeptics from both U.S. political parties who have questioned whether aid from the Merida Initiative could end up in the wrong hands.

I'd wondered previously if President Bush's proposed Mexican aid package wouldn't just wind up training and arming more turncoats like Los Zetas. Perhaps this moment of rethinking will encouage Congress to consider more helpful approaches than just purchasing hardware and paying overtime for Mexican police.

Meanwhile, in Juarez, El Paso's sister city across the Rio Grande, 15 police officers have been assassinated since the beginning of the year, despite the presence of 2,000 federal troops.

For those keeping track at home, the cartels are winning the drug war battle in Mexico, and it's mostly because of corruption, superior tactics, and economics, not a lack of military might.

Fabius Maximus asks point blank the critical question: Is Mexico on the road to a failed state? Two years ago, I did not think so. Today I seriously wonder.

So it's with this recent context that I was interested to see an article in Voices of Mexico (Jan-April 2008) titled "The Direction of Criminal Justice Reform in Mexico" (not online, I happen to subscribe to VOM, which is an English-language arts, politics and culture magazine published out of UNAM, a major university in Mexico City).

Let's just say, the opening lines of the short piece by UNAM law professor Enrique Ochoa Reza and legal researcher Miguel Carbonell, didn't provide particular comfort, declaring "Any analysis of the Mexican criminal justice system must start from a certainty: it is so flawed we can say without fear of exaggeration that it is completely bankrupt."

Okay, let's start there. (!) They continue:

All available statistics lead us to the conclusion that the Mexican criminal process is leaking from every side: a) it is useless for trapping the most dangerous criminals; b) it allows for an extremely high level of impunity and corruption; c) it does not guarantee the fundamental rights of either victims or accused; d) it does not set up incentives for professional criminal investigations; and e) if we take into account its poor performance, it is extremely expensive. ...

Eighty-five percent of victims of crime never even file a complaint; 99 percent of offenders are not convicted; 92 percent of criminal hearings take place in the absence of a judge; 80 percent of Mexicans believe judges can be bribed; 60 percent of arrest warrants are never executed; 40 percent of inmates have not yet been convicted, while 80 percent of detainees have never spoken to the judge who convicted them.

Yikes! I don't know off hand what the line by line comparable stats would be in the United States. For some, like Ds never seeing the judge who convicted them, I'd hope it'd be near 0% instead of 80% in the US. But comparisons aside, on their face those are alarming numbers.

Ochoa Reza and Carbonell also answer, partially, another key question. If the most serious criminals appear immune, and few investigations occur ("Most arrests by police are made when the offender is caught in the act or within the following three hours"), "who does the criminal justice system catch?"

Most of the people sentenced have committed offenses against property, particularly petty thievery, or what in Mexico are classified as crimes against health, above all small-time drug dealing worth an average of US $100 (although half these individuals had drugs in their possession worth less than US $16). Some analysts think these figures show that what the police are doing, more than arresting real drug dealers, is to arrest consumers, probably to try to fulfill arrest quotas demanded by their superiors.

This numbers driven drug enforcement model is a US export. It's essentially similar to the incentives that operate among US drug enforcement officers, particularly at the state and local levels.

Another thing's similar to the United States, ironically. Despite the growing Mexican murder rate (more than double that in the US) and increased influence of major, corporatized drug cartels over the last decade, overall reported crime decreased in Mexico from 1997-2005, both percentage-wise and in real numbers, from 4,084 local crimes reported daily nationwide in 1997, down to 3,864 in 2005, increasing to 3,957 in 2006.

Over the same period though, the authors report, "we find a paradox" in that while the number of crimes declined, the number of people in prison increased. Clearly crime is not down because imprisoning more people "worked" in Mexico. Drug gangs are openly competing with the central government for power! Instead, I'd suggest that Mexico and the United States both appear to have enjoyed organic, overall crime reductions during this period that are a) about the same magnitude and b) occurred in spite of rather than because of state incarceration policies.

The authors added this concern, which in light of Texas' incarceration juggernaut seems almost quaint: "The magnitude of these figures should make us stop and think about the large number of Mexicans who at one time or another and in one circumstance or another are accused of having committed a crime. The number is 2 percent of all the country's inhabitants."

In Texas, by comparison, more than 1 percent of Texas adults are currently in prison, and nearly 1 in 20 Texans are under current control of the criminal justice system: either in prison, jail, on probation or on parole. About one in 11 adults in Texas have been convicted of a felony, several times the percentages in Mexico, FWIW.

In their section identifying possible reforms, Ochoa Reza and Carbonell look to take the best of what appears to work from both the north and the south. From Los Norteños they suggest Mexico " [Set] up a common procedure in which the trial becomes the central stage of the criminal process. In the Mexican system, this presupposes at least two things: 1) eliminating exceptions that allow for non-enjoyment or diminished enjoyment of fundamental procedural rights (that is, the currently existing regime of exceptions applied to organized crime, established both in the Constitution and in the Federal Law Against Organized Crime); 2) giving the stage of the criminal investigation the place and importance it should have, reducing the requirements for subpoenaing a person to testify and making what happens before a judge the central part of the process."

They also support "Strictly separating the public prosecutor's subpoenaing and prosecutorial function from the justice system's decision making functions," and making investigations less formal to encourage more of them (don't quite know what formalities they're talking about).

Finally, declared the authors, following the lead of Argentine reformers Alberto Bovino and Christian Hurtado, he suggests:

Regulating a series of alternatives to the application of common procedures and punishments. It should be emphasized that on this point Bovino and Hurtado refer not only to criminal procedures, but also to the regive of substantive criminal law, which should be made much more rational and contained, avoiding the levying of criminal sentences willy-nilly to punish all kinds of behavior.

I'd not heard before of Bovino and Hurtado, but like what I hear from them on this piece. (Looking for more background on them, I found this recent research paper about legal reformers in Latin America that appears to give more detail on recent trends in Latin American criminal justice reform - perhaps fodder for another Grits post down the line.)

Ochoa Reza and Carbonell's article gives some important context about crime and punishment in Mexico that both re-frames and complicates the near-daily news reports about the nation's Sisyphean battle against the drug cartels. On a day to day basis, Mexico faces many of the same challenges we do - some of them "supersized," and some of them on a much smaller scale - and they're looking both north and south for solutions.

RELATED: From John Ross, Why Mexican Justice is a Euphemism.

Valor Redefined

One day you're a hero, the next you're a goat.

Austin PD Officer Roger Boudreau was given the Medal of Valor after what he described as a dramatic shootout last year with David Lozano during a domestic disturbance call.

Lozano was sitting in the Travis County Jail charged with attempted capital murder until May 2 when he was released on a personal bond. The DA's office says charges will likely be dropped. Reported the Austin Statesman ("Charges in police shootout likely to be dropped, prosecutor says," May 17):

At the time, Boudreau said Lozano fired first; now, Lozano's attorney, Ryan Deck, says new evidence shows the officer fired first.

An expert hired by Deck last month reported that Boudreau's account appeared to be inconsistent with an audio recording from his patrol car.

The Travis County district attorney's office had another expert examine the recording, and inconsistencies with what prosecutors believed was the sequence of events that night were found, Assistant District Attorney Karen Sage said. She would not elaborate on what those inconsistencies were but said they centered on the number of shots fired.

"Based on the results of their tests, it made us question the sequence of events," Sage said. "Based on that fact, the trial was set to go May 12, and we asked for a continuance. We also allowed the defendant to be let out" on a personal bond.

After about 13 months in jail, Lozano, who was shot three times and lost part of one leg, was released on May 2.

Getting the Medal of Valor for a "defensive" shooting where you ripped off the first shot and lied about it reminds me of Officer Tom Coleman from the Tulia scandal being named Texas' Law Enforcement Officer of the Year by then Attorney General John Cornyn. It turned out Coleman perjured himself in the cases he was honored for, and more than three dozen people were later pardoned by Gov. Rick Perry.

Look, mistakes happen. A domestic disturbance call can be a dangerous situation, and clearly Mr. Lozano had a gun. But lying about what happened afterward is a different kettle of fish. And accepting the Medal of Valor for the lie is just plain over the top.

Sometimes heroic stories that sound too good to be true turn out to be ... well ... too good to be true.

Most evidence for possible FLDS criminal cases seems tainted

I'm now fairly convinced Texas will never see any successful criminal prosecutions from the Great Eldorado Polygamist Roundup. They've just screwed it up too badly. Whether the child seizures will stick on the civil side is another matter, but nearly all their evidence for possible criminal prosecutions appears tainted.

I've argued previously why I think the search warrant was based on bogus information, and evidence keeps trickling out that confirms law enforcement knew or should have known the original complaint call was a hoax before they went in.

Now comes news that minor FLDS children are being interrogated by law enforcement without an attorney present, even when they ask for one, on the basis that CPS is now their legal guardian and has authority to grant consent to the questioning without counsel. ''My client told the CPS worker that she did not want to talk to her without an attorney,'' one attorney told the Houston Chronicle, ''She was told that she wasn't entitled to an attorney because it was a civil matter.''

Terry McDonald, a criminal defense attorney and law professor at St. Mary's University, said it would not be illegal for Child Protective Services to interview the children without parents or attorneys present and to bring in law enforcement officers to assist.

CPS is now the children's legal guardian, McDonald noted. But what is legal may still be questionable.

"It seems to me a conflict of interest, because law enforcement and CPS have acted jointly in this case," McDonald said.

McDonald said CPS normally investigates enough to determine whether a crime has been committed against a child, then turns the case over to law enforcement for development of a criminal case. State law stipulates that children cannot be interviewed by law enforcement without an attorney or legal guardian present.

"I think you could make the argument that CPS is not acting in their capacity to protect children from abuse, but is acting as an agent of the state, as law enforcement," McDonald added. "Whether a judge would agree, I don't know."

Remember: This is all a fishing expedition. No crimes have been alleged and the only specific "abuse" cited in court by CPS is the parents' religious beliefs, from which they're being told they may have to apostatize in order to regain their kids. The complaint that brought in CPS was a hoax, and there is no complaining witness. If they find new information in interviews from a civil case will they now claim they're launching a "new" investigation based on these "consensual" interrogations? That's pretty disingenuous.

I have no idea what's being said in those interviews, but IMO CPS is overreaching tremendously to assume law enforcement will get to use that information in any criminal proceedings. By wholesale ignoring the right to counsel for people openly asking for their attorneys, combined with the flimsy totality of the premise of the state's action in the first place, it's a safe bet some judge, somewhere, will toss out big chunks of any criminal case before it ever gets to trial. I'm not a lawyer and couldn't cite to case law, but I'll be surprised if some judge somewhere along the line doesn't agree CPS is acting as law enforcement's stalking horse.

Meanwhile, I'm angered and embarrassed for our state and nation at this news that CPS may tell FLDS parents they have to give up their religion to get their kids back, including kids who no one thinks have ever been abused. These parents are in the same predicament as Abraham in the Bible, ordered by God to slay his son Isaac: Choose between your children and your faith. What would you do?

And will God stay CPS' hand before the blade falls?

RELATED: From Unfair Park.

Authorities ignored leads, evidence that should have shown Eldorado accusations were a hoax

There's so much we still don't know about what went on in the days leading up to the massive raid by authorities on the YFZ Ranch, but a habeas corpus petition filed in San Antonio on behalf of monogamous FLDS moms who are all above age provides this new tidbit: Authorities knew before hand not only that Dale Barlow wasn't on the ranch (they'd spoken to him by phone and confirmed he was in Arizona), but they knew the supposed caller wasn't from Texas. According to the petition (if you want to read the whole thing, download the ginormous 75-page pdf file; thanks KBP for getting it online):

It is clear from the recently unsealed Colorado Springs arrest warrant affidavit for Rozita Swinton that Texas authorities were well aware of the fact that the two telephones utilized to make numerous calls to the New Bridge Family Shelter "Crisis Hotline" in San Angelo were registered to telephone numbers outside the State of Texas. This information, together with the determination that the alleged perpetrator, Dale Barlow, was not present on the premises prior to initiation of the search, warranted further investigation.

Both of these telephones had Colorado Springs, Colorado area codes (area code 719). Upon calling the Colorado Springs Police Department (Sergeant Mandel) Texas authorities were immediately advised that one of these telephone numbers was associated with an individual who had made numerous "false reports of sexual abuse to police agencies" in the Colorado Springs area. All-in-all the investigation reveals that Rozita Swinton has been linked to false allegations of sexual abuse to over ten different child protection and law enforcement agencies, dating back to 2005, in cities across the country from Monroe, Washington to Ft. Meyers, Florida.

Lots more detail, but I wanted to get that tidbit out there.

So for those who continue to believe this warrant was executed in good faith, here are the facts.

• Authorities knew before the raid that Dale Barlow was in Arizona, had spoken to him, but made no effort to have him arrested or detained by his probation officer.
• The caller mispronounced the name of the town (there's a long "a" in Eldor-A-do), used terminology that did not match FLDS religious lingo, and only gave details about the group and the ranch that could be easily gleaned online.
• Authorities knew the calls to the shelter didn't come from Texas, and with minimalist investigation would have identified the caller as a routine hoaxer.

But they still entered the ranch like gangbusters, then spent the next month dissembling in the media about what they'd found. When Rangers finally did get around to questioning Dale Barlow, they left without arresting him and later dropped the warrant.

Recently in the comments I facetiously compared the Texas Rangers' search for Sarah's molester to OJ Simpson's vow to search for his wife's "real killer." But there's a big difference: Nicole Simpson was actually a crime victim. Sarah was the figment of a troubled imagination. I'm increasingly convinced that law enforcement either knew or should have known that before they went onto the YFZ Ranch.

UPDATE: Thanks to the commenter who pointed to the Colorado search warrant affidavit (pdf) regarding Rozita Swinton, posted online at Kidjacked. From this document we learn much more about the Rangers' belated and uninspired investigation into the source of the hoax that launched the Great Eldorado Polygamist Roundup.

My homies, for good or ill: 14 year old in Tyler explains Constitution to dumb redneck

Having grown up in Tyler, there are moments when I must admit to finding myself embarrassed of my hometown, and others when I'm quite proud of people there.

On the embarrassed side, this letter to the editor wishing harm would come to the families of criminal defense attorneys struck me as one of the most mean-spirited things I've seen in a while. As evidence there are few people as dumb as an East Texas redneck, the author declares, "You didn't see Perry Mason or Matlock take on a case of they knew the perp was guilty."

Yeah, and John Wayne never got off his horse to take a pee.

But there are still plenty of Tylerites who make me proud, and one of them is 14-year old Temple Mims, the daughter of a local criminal defense lawyer who offered this response mopping the floor with the letter writer, informing her that Matlock and Perry Mason were fictional, and that "My father defends the Constitution of the United States of America."

Yes he does, Temple. Good for you.

Via Skelly. UPDATE: Fark.com picked up this item - see their discussion.

Local DAs in two counties keep no-billing TYC abuse cases

One of the main criticisms of the Texas Youth Commission's current structure has been the location of facilities in rural locales, making it hard to hire staff, nearly impossible to find specialized services, requiring overuse of "telemedicine" instead of on-site doctors, and boosting transportation costs during times of high gas prices.

Yesterday in the Houston Chronicle, columnist Lisa Falkenberg suggested another problem with placing TYC facilities in rural areas: Insular, "friendly" small-town grand juries and prosecutors may be unwilling to charge TYC employees with abuse ("Are some grand juries too friendly?," May 15). Her story focuses on a no-billed case from December in Crockett:

A guard pins an unruly teen inmate against a wall in a small room at a Texas Youth Commission facility in Crockett. The youth isn't going anywhere.

His ankles are shackled, his wrists bound to waist chain. A pair of guards loiter nearby. One sporting a blue letter jacket displaying the letter "C" seems to find the scene humorous and smiles broadly as he walks away.

Then he turns back. Without hesitation, "C" reaches for the inmate's ankle restraints and yanks his feet out from under him. The inmate, unable to brace himself, falls flatly on his face, blood from his busted chin staining the floor. The guard who has been restraining him lands on top of him.

"C" leaves the room and appears to nonchalantly describe to a group of employees congregating in a reception area outside how he yanked the inmate's chain. A supervisor inspects the inmate. A staffer mops up the blood. "C" is fired a short time later.

Surveillance video captures the whole ordeal, which happened on Dec. 20.

The new TYC special prosecution unit was amazed when the Houston County grand jury returned with a no-bill, since all the elements of the offense in the statute were plainly visible on the video:

[Inspector General Bruce] Toney and Gina DeBottis, head of the Special Prosecution Unit, fear that in some counties, "friendly" grand juries and hesitant district attorneys are reluctant to punish TYC employees, either because they're neighbors or part of an institution that's vital to the community's livelihood.

"Maybe it's the small town or county attitude of, 'Hey, that's my neighbor, I grew up with him, I grew up with her, I'm not going to see them go to jail over a juvenile that's done nothing but cause trouble all his life,' " Toney said.

Whatever the cause, Toney says any reluctance to indict hinders his office's efforts to protect youth from abuse.

"Why do they even need us?" Toney told me. "If we can't get the good, valid cases true-billed, then there's really no need for us to exist."

District attorneys in two counties identified as problematic dismissed accusations of unfairness. Hidalgo County Criminal District Attorney Rene Guerra, whose county no-billed 10 official oppression and assault cases involving TYC employees in January alone, says that he believes his grand jurors acted appropriately.

Some of this is just a lack of "want to" by local DAs. That's what's held up any prosecution of the original TYC sex abuse allegations in Pyote,, and now we see that DAs in Houston and Hidalgo County similarly aren't too aggressive about prosecuting abuse cases.

Grand juries in Texas are largely tools of the local DA's office. There's an old courthouse saying that a prosecutor can get a ham sandwich indicted if they like. So when you see ten abuse cases dismissed in a single month in Hidalgo County, that speaks to the DA's own commitment as much as the grand jury's judgments about the facts.

The DAs, for their part, say the Lege created a new bureaucracy with the TYC special prosecutor that "doesn't need to be there." But would anybody even know about such cases being silently no-billed if these new oversight offices weren't there? It's only because the Lege created new oversight mechanisms that the public even has the opportunity to know what's happening and debate the topic.

Now certainly I don't want special prosecutors or local DAs to become the enforcers of TYC's human resources policy, but the incident described by Falkenberg is a straight up assault, and a rather sadistic, self-congratulatory one at that.

At least the fellow was promptly fired. A couple of years ago at TYC, I'm not sure that would have been the outcome.

Surveillance cameras and crime

Having written before about longitudinal research showing that, except for a handful of specific circumstances (like car parks), surveillance cameras don't reduce crime, I was interested to see a study described by the blog Judgement Day about camera use in Philadelphia, where researchers claimed cameras reduced crime in target areas by 13%.

That's a pretty startling claim of success that flies in the face of meta-research on the topic.

Examining the study itself (pdf) more closely, the topline summary of a 13% reduction based on the cameras looks pretty overstated. When you get down to the bottom line (see the chart at the bottom of page 11), researchers found crime did not go down overall at half the sites.

Researchers divided 18 cameras into 8 different sites because several were placed close to one another. Of those 8 sites, they found no crime reduction at four of them. At two sites, crime went down but increased just outside of camera range (one of the two, said researchers, had a net gain despite crime displacement). At only two of the sites did the cameras reduce crime, supposedly without displacing crime elsewhere.

That's a much more mixed set of results than the topline finding that crime declined 13%. And of course, only analyzing 8 sites for a short period of time, the Philadelphia study is analyzing a pretty small dataset. When the British Home Office looked at camera effectiveness in London (pdf), cameras were already in place much more ubiquitously, and could be analyzed over much longer periods of time.

Over at HowStuffWorks, Cristen Conger had this assessment of the overall body of research on the effectiveness of police cameras that I more or less agree with:

So taken as a whole, what do all these numbers mean? The Home Office Research Group conducted another more comprehensive study in 2005, confirming that CCTV networks appear nearly ineffective [source: Gill]. A similar evaluation from 2006 by the U.S. Department of Justice, also questioned the reported success of CCTV systems, finding little evidence that they significantly reduce crime [source: Ratcliffe].

This isn't to say that crime cameras are entirely useless. Evidence consistently points out that cameras reduce auto-related crimes as much as 41 percent [source: Welsh and Farrington]. They are also more helpful with reducing crime in enclosed areas with less foot traffic when combined with other law enforcement efforts. And they're helpful in conducting post-crime investigations [source: Ratcliffe].

Nevertheless, the 2005 Home Office study revealed that the cameras did not produce enough bang for the buck. Federal and state governments have poured millions into the set-up and upkeep of crime cameras, but the Home Office study revealed that they were underutilized and not fully integrated into police strategies [source: Gill].

That's a good summary of the current state of research on surveillance cameras' effectiveness. They're useful for some, specific purposes, but in general public spaces are more what Bruce Schneier refers to as "security theater," which is to say, not entirely useless but mostly for show.

Over the weekend I happened to listen online to a talk by Schneier in which he reminded his audience not to be entirely dismissive of security theater, but to understand it for what it is and not mistake it for real-world security; that's good advice for policymakers regarding surveillance cameras. There's good research out there (much of it cited above by Conger) about when and how cameras do and don't work to improve safety. Beyond those uses, surveillance cameras in public spaces are more about theatrics than security.

Speak for Yourself: FLDS voices trickling into the blogosphere in response to YFZ raid; most Grits readers say 'send kids home'

Not surpirsingly, I suppose, given the stances I've taken on this blog, 75% of Grits readers who responded to last week's survey (out of 465 respondents) said that all or most of the FLDS kids should be sent back to their parents. Thirty two percent of readers thought all the kids should be sent home, while 43% of readers said only kids who have been physically or sexually abused should go into foster care. Since, so far, the state has accused no one of physical or sexual abuse of any YFZ child, and the rape allegations that caused the raid turned out to be a hoax, in essence most Grits readers appear to agree that nearly every FLDS kid should be sent home to their parents. Only 8% of readers thought all the kids should go into foster care, and another 7% agreed with my (I thought) facetious suggestion that the state should "Send them to good Baptist homes where they'll be taught the Christian gospel." Another 7% said each child should be asked what they want, which naturally reminded me of this 55-year old editorial cartoon.

Assuming most kids do want to go home to their parents (go ahead, trolling commenters, explain for the zillionth time how they're all suffering from "Stockholm Syndrome"), that means more than 82% of respondents think most FLDS families should be reunited.

As we await Judge Darlene Byrne's ruling today on the fate of a 22-year old FLDS woman who's been sleeping on the floor of the Austin CPS office with her newborn (see the comments re: the correction), away from her monogamous husband and two other children, I thought I'd point readers to a number of interesting items I'd seen or read lately about this enormous mess:

First, I'm glad to see FLDS members themselves are beginning to speak up in the blogsophere and on the web, beginning with interesting posts from "Pligchild" at FLDS View, including:

• Feminine Feminists
• Top 5 Lies About the FLDS
• FLDS vs. Forced Marriage
• Children's Songs
• The FLDS Life
• My Cousin Austin Weighs In
  

It's sad that it took such a tragedy to bring FLDS voices out into the open, but I think we benefit a lot from hearing people speak up directly for themselves.

Similarly, see the "open letter" to Gov. Perry and Judge Walther from an octogenarian YFZ Ranch resident Samuel Roundy on the hopefully named website, Truth Will Prevail. Somebody needs to set Mr. Roundy up on a blog, pronto; I want to hear more of what he has to say about his religion and what's going on with the YFZ kids. Reporters, too, IMO should locate Mr. Roundy and put them on their contact list when discussing FLDS views. A lot of folks with hostile (or mercenary) intentions appear happy to accuse the group of countenancing every form of evil imaginable, and those views can't be effectively nuanced unless folks like Mr. Roundy, who have the ability and motivation to speak articulately in defense of their own rights, are given the chance to do so.

At CaptiveFLDSChildren.org, a site hosted by FLDS itself, the group posted children's usual daily schedules and activities for social workers who asked for information about their usual routines. Interesting reading, mostly for its utter normalcy and ultra-religiosity.

Beyond the FLDS itself, at the FAIR Blog (dedicated to "Defending Mormonism") I saw a fascinating historical discussion of the question of "Lost Boys" that's well worth a read. Another Mormon blogger quotes Aleksandr Solzhenitsyn from Gulag Archipelago, comparing the Soviet writer's predicament fighting public opinion and the state behemoth to that faced by fundamentalist Mormons in Texas. A related piece worth reading: Monogamist Pot, Meet Polygamist Kettle.

From Introspections of a Plural Wife (at Heart), we see an account of a Today Show appearance by FLDS members who explained the phony basis for state allegations about teen mothers at the ranch:

One mother said that she has a daughter in state custody who is 23, but who the state of Texas insists is 15 or 16 years old. She says her daughter has a birth certificate and a driver's license, and that she herself submitted her own driver's license and attested to her daughter's age, but the state will not accept any of the identification as legitimate.

What other kind of evidence can any person offer as to the age of an individual? Age is not something that DNA can establish.

She's right about that. If DNA can't tell age, you won't accept documentary evidence (like a Texas driver's license) and your abuse case is premised on the idea that the women are lying so you can't use their testimony, how can the state prove anything one way or another?

Finally, since fundamentalist Mormon polygamy for most of us is an alien concept, I wanted to share this extensive chronology of federal legislation on polygamy.

This story is rapidly ballooning beyond my own ability to track all of its various moving parts, so I'm really glad to see so many voices chiming in.

MORE: From The Common Room.

Frequency of mentally ill youth in juvie detention twice as high as previously believed

America has reached the point, sadly, where we treat prisons, jails and youth detention as substitutes for mental health treatment or else the only place where indigent people can access mental health care.

For adults the issues can be more complex, but for kids they're pretty simple: Criminalizing mental health problems only makes sense from a bureaucratic perspective (to get the person access to treatment), not from any viable theory of justice anyone could possibly describe.

Last week the Houston Chronicle's Sarah Viren published some astonishing data ("Survey of youth in custody find half have mental health problems," May 8):

Nearly half of the youths locked up in the Harris County Juvenile Detention Center suffer from mental health problems — far more than the estimated 20 percent with mental disorders in the general youth population — figures released Thursday show.

These youngsters, mostly teenagers, have been diagnosed with maladies including bipolar and attention deficit disorders, according to data compiled by a group of organizations studying the issue. Nearly 20 percent have severe emotional problems, the data show, and a quarter had never been diagnosed previously. ...

Researchers and juvenile justice workers have long noted a correlation between mental health issues and delinquency. In Harris County, however, juvenile offenders held in the detention center were not routinely psychologically evaluated until last year.

"When I go out and speak or just have conversations with the general public, they just don't realize that there are that many kids," said Harvey Hetzel, head of the probation department. "It's high and people need to realize that."

With the help of private foundation grants and public dollars, Operation Redirect spent the past year testing close to 3,500 juveniles in detention, or about 90 percent of those in lock-up awaiting a court hearing. That's up from 10 percent to 15 percent tested the previous year.

Identified problems ranged from mood to psychotic disorders for kids arrested for crimes such as theft, drug possession and violence against a family member.

Judge Mike Schneider, the newest member of the juvenile courts, said his cases frequently involve kids hampered by their mental issues.

"One of the things we see is either kids who commit offenses or violate their probation when they make the decision on their own to stop taking the medication that they are supposed to take," he said.

Of the youths with severe emotional disorders in juvenile detention, 22 percent had been physically abused and 12 percent were abused sexually, the new data show. More than half have experienced some form of traumatic loss.

Schneider said the county has options for those with severe problems, but could use more. Operation Redirect members voted Thursday to fund a pilot program, used successfully in other cities including Dallas, which works with mentally ill kids and their families.

These are pretty astonishing data, and a lot higher than already disturbing earlier estimates. As Scott Hickey from the Harris County MHMR authority reported in a presentation last year, when "Harris County matched mental health records with the juvenile probation rolls, they found 24.8% of kids matched." So a more thorough vetting of kids for mental illness, attempting to diagnose those who weren't already plugged into the system, nearly doubled that figure!

I asked my friends over at the Texas Criminal Justice Coalition - Leah Pinney and Isela Gutierrez - what resources they knew of that might help make sense of this figure, and they turned me onto a lengthy report on the identification and treatment of youth with mental health needs in the juvenile justice system (pdf), and pointed out this short YouTube video by one of the report's authors.


Thanks to Leah and Isela for sending along the extra info. I've not had a chance to read the report they mentioned, but wanted to make it available for those working on these issues. Perhaps I'll have more to say about this topic after looking over it more carefully.

Phony statistic on pregnant teens clouds YFZ Ranch debate

Mark Twain famously said that a lie can travel halfway around the world before the truth can tie its shoes, and ample proof of that may be discovered by analyzing the claim from the Texas Department of Family Protective Services that 31 of 53 teens found on the YFZ Ranch were pregnant or had children, even though in court the agency only claimed five teens were discovered who fit that description.

This statistic is still being used in the mainstream press even though a cursory interrogation shows it's probably false. Yesterday on the Dallas News' opinion blog, Sharon Grigsby cited the 31 of 53 statistic as a primary reason their editorial board hasn't criticized the state's handling of the case.

At the original 14-day hearing, CPS said it had found five underage mothers, though several of those were disputed by their lawyers. Then, all of a sudden, just before FLDS mothers were to be separated from their children, 26 more underage pregnant "girls" were supposedly identified, and headlines across the planet claimed 60% of teenage girls at the ranch were pregnant.

Even when they issued the statistic, though, DFPS knew it was disputed, contradicted documentary evidence, and was likely inaccurate. Several days after the misleading statistic was put out in the world, DFPS clarified where the new numbers came from, according to a DFPS spokesman: "26 claim to be 18 or older. But we don't think they are."

So add those 26 to the original five, and that's how you get so quickly from 5 to 31. But that math only works if you assume someone is lying. The question is who? And why?

We now know at least part of the answer. DFPS can say whatever it likes in its press releases, but lying in court will get you in trouble. It's telling, then, that in the first instance where one of these mothers whose age is disputed went to court, it turned out DFPS admitted she was really 22 years old, and monogamously married to a 24 year old man. (The agency still wants to seize her kid, though.)

How did she end up in DFPS custody? Here's what happened in a nutshell: Before the kids were herded onto the buses to be taken away from the San Angelo sports arena where they were initially held, their moms were told that only mothers who were underage could stay with their kids (see, e.g., this DFPS press release saying the agency planned to "keep the teenage girls and their children together"). In order to stay with their children, 26 more women announced they were minors, boarded the bus with their kids, and there's your 31.

In other words, as a commenter at The Volokh Conspiracy put it, "CPS' placement strategy intentionally skews the reported ages of mothers by withholding placement with their own children unless they lie."

If the Dallas News and other media are still relying on that 31 of 53 number as anything but media hype from a badly discredited PR machine at CPS, their editorial board should dig deeper and reconsider. That's a phony baloney statistic.

Around the blogs

While I tend to other affairs for a while, check out recent posts at these fine blogs:

• Texas Prison Bidness
• Not Guilty
• Stand Down Texas
• Simple Justice
• The Underdog Blog
• Life at the Harris County Criminal Justice Center
• The Deception Blog

Are crime lab reports "testimonial" documents? SCOTUS will decide

Doc Berman over at Sentencing Law & Policy recently asked what "sleeper" cases at the US Supreme Court people were watching, and I mentioned that, though not a sentencing issue per se, I was interested in the outcome of of Melendez-Diaz v Massachussetts, which was granted cert this spring and will be argued this fall. The case will decide whether a lab report is "testimonial" evidence subject to Crawford/confrontation requirements, meaning a defendant would have the right to cross examine the lab technicians who performed the lab work.

This case has important implications for challenging bad forensic science in court; circuit courts are split 6-5 in (bare) favor of concluding lab reports are "testimonial" documents.

Unequivocally my own view is that considering lab reports anything but written expert testimony seriously misunderstands modern forensic science, which is not "objective" science but a results oriented, conviction driven body of techniques, not a formal application of the scientific method. In real science, a theory is not valid unless it can be tested and possibly disproven. In forensic science, the "theory" is that this or that person did it, and the goal is to find evidence that bolsters that case, which is a slightly different breed of cat. A few years back I wrote on this topic,

Forensic science isn't "objective" science, it's goal oriented. Police scientists tend to find the answers prosecutors want because, as a Dallas scientist testified to the Senate Criminal Justice Committee in Houston, it's prosecutors who tell the scientists what avenues of inquiry are "probative" -- in other words, prosecutors tell the scientists what questions to ask, not defense attorneys. If defense counsel want to ask their own scientific questions - for example, to perform tests that might exclude the defendant as a suspect - the defendant must pay for outside lab testing, or convince a reluctant judge to release the funds.

Forensic science is contextual, not neutral, and outside the classroom it's always employed with a purpose. In court, innocent people get roped in by bad science largely because the purpose of the science is to convict, not to exonerate.

In more than a few Texas cases that lack of neutrality has led to wrongful convictions, which is one of the reasons Senate Criminal Justice Committee Chair John Whitmire recently called for removing Houston's crime lab from under control of the police department, so that the culture of the lab would be dominated by scientists instead of police officers. Another possible solution is for the state to provide experts for the defense in cases (e.g., like arson) that hinge particularly on interpretive lab results.

In the context of the growing effort to prevent and remediate wrongful convictions, it would be a big blow if SCOTUS says lab reports can't be interrogated at trial. Over at the Confrontation Blog, U. Michigan law prof Richard Friedman summarizes the Melendez-Diaz case, and gives links to the particulars:

Melendez-Diaz v. Massachusetts, No. 07-591, seeking review of Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. 2007), an unpublished decision that follows Commonwealth v. Verde, 827 N.E.2d 701 (Ma. 2005). You can see the petition by clicking here, my amicus brief by clicking here, the amicus brief filed by three other law professors and several defense organizations by clicking here, the Commonwealth's brief in opposition by clicking here, and the petitioner's reply brief in support of the petition by clicking here. This one is much simpler: Massachusetts is among the states holding that forensic lab reports are not testimonial. I think this is plainly wrong, and the Supreme Court should resolve the conflict quickly. This is an important theoretical matter, because there is no sound theory of what “testimonial” means under which lab reports are not testimonial. And it is an important practical issue because of the many thousands of cases involving lab reports each year. I think courts holding these reports to be non-testimonial are motivated largely by faith in the reliability of these reports – faith that in some cases is misplaced and in any event is inapposite under Crawford – and by concern about the costs of requiring the authors to testify subject to confrontation. I believe those costs could be significantly reduced by providing for depositions of the authors.

Many aspects of forensic science like fingerprint and ballistics analysis have simply proven less reliable over time - as they've been subjected to rigorous, peer reviewed testing - than was long believed to be the case by the courts. Arson investigators for years routinely testified to a certainty to "facts" that turned out not to be true at all. DNA analysts frequently overstate in court the level of certainty their identifications prove. Breathalyzer technology has been legitimately challenged.

At the "Actual Innocence" conference in Plano last month, former executive director of the National Forensic Technology Science Center Bill Tilstone told the audience that most "pattern evidence" - handwriting analysis, shoe and tire print comparisons, etc., has no research-based foundation at all. Much of forensic science is "soft" science, he said, that at best has not or even cannot be comprehensively tested for accuracy.

Perhaps someday, somehow, it will be possible to rid the courtroom of the actual pseudoscience, but at a minimum, in the meantime, expert testimony shouldn't be excluded from cross examination just because a technician wrote down her results on a standardized form.

"We learn from history that we do not learn from history" - Hegel

Salt Lake Tribune reporter/blogger Brooke Adams' coverage of the Great Eldorado Polygamist Roundup continues to outclass all of the Texas media by a country mile. Yesterday she published this wonderful historic image on her blog at the paper, The Plural Life, along with links to various present-day cartoonists' portrayals of the Texas raid. This cartoon was published in the Salt Lake Tribune toward the end of the Short Creek saga in 1953:

Ironically, a commenter pointed out, the state legislator who sponsored new statutes in 2005 specifically targeting FLDS, Rep. Harvey Hildebran, R-Kerrville, recently told the press "I don't think this will be another Short Creek." But he's already wrong. You could change the characters above to Governor Rick Perry and the Texas 3rd Court of Appeals, and the cartoon would be utterly current.

Don't Jump, And Here's Why

The state of Texas might want to kill you later, Bethany Anderson notes wryly at the Eleventy Billionth Blog, so after all it would be rude to commit suicide out of remorse after beating your wife to death with a baseball bat. Read her open letter to alleged killer Brent Douglas Stephens on behalf of the State of Texas.

YFZ kids abused and neglected under CPS care

I've not kept close track lately of the goings on with the ever changing number of "kids" seized from the YFZ Ranch in Eldorado, but wanted to round up recent links and sources that are slowly beginning fill out the picture.

For starters, it's becoming clear other states don't see Texas' child seizure action as a model. The Utah Attorney General is resisting calls to mess with polygamists, declaring “I don’t care how many talking heads you see on cable television shows that tell us that we need to cowboy-up and be like Texas. We don’t believe that’s the answer,” said Utah AG Mark Shurtleff. (Further detailing Utah's approach, a law professor explained in an informative column why CPS should begin now to fulfill its statutory obligation to reunite children who weren't abused with their families.)

Shurtleff told a crowd last week, according to The New York Times, that Utah wants to identify relatives who might provide foster homes if Texas takes these kids long term:

Utah’s attorney general, Mark L. Shurtleff, sat before a room of perhaps 400 people, most of them fundamentalist polygamists, at a town hall meeting here on Thursday night. He asked for a show of hands. How many people, he wanted to know, were related to the children who were seized last month in a raid in Texas in an investigation of possible marriage and abuse of child brides?

Scores of hands shot up. Then Mr. Shurtleff asked his follow-up: How many of you would be willing to take those children into your homes? Without a moment’s hesitation, the same hands rose.

“We think it would be wonderful if that were to happen, and we’re going to continue to try to encourage that,” Mr. Shurtleff said, as the room exploded with applause.

I wonder what Texas CPS' reaction will be to that idea? Since their legal theory is that fundamentalist Mormons' religion is an inherent threat to children, they may fight it, but it'd sure be a lot better for the kids to wind up with relatives instead of strangers.

On the legal front, although child by child court proceedings begin next week (and I've not made time yet to read the relevant court filings), one family with a newborn convinced a judge to listen to their pleas a little earlier, reported the Dallas News:

AUSTIN – Child Protective Services tried to whisk a newborn and his mother, in state custody as a minor after being removed from a polygamist sect's ranch, to a different city within hours of childbirth on Monday.

But her husband, saying his wife is 22 and should never have been taken into state custody with the ranch's children last month, rushed to court and prevented it.

Because CPS had no foster care placement in Travis County that was suitable for the newborn, the mother and child were poised to spend the night in a CPS office, a lawyer for the husband said. ...

State District Judge Orlinda Naranjo issued an injunction that temporarily halted CPS' plan to move the mother, the newborn and the couple's two other children, ages 2 and 3, to San Antonio within hours of the delivery at an Austin birthing center.

The judge said the mother and the three youngsters will remain in Travis County until after a hearing Thursday on Mr. Jessop's request that another district judge in Austin, Darlene Byrne, order his wife and children released from state care.

Of course, the reason some older women claimed to be minors at one point, the state well knows, is that CPS told them that was the only way they'd be allowed to stay with their children, in this case a 2 and 3 year old. According to her lawyer, as of last night Mrs. Jessop was staying with her newborn "in the offices of CPS because they don't have anywhere else to put her."

Who seriously contends this woman and her newborn are possibly better off sleeping in CPS' foyer in Austin instead of back home with her (monogamous) husband? It's difficult to understand what the state thinks its accomplishing with such shenanigans. Aren't there any actual abuse cases in Texas to worry about?

Indeed, it's becoming clear that these kids are being abused and neglected worse under CPS' care than they were at the YFZ Ranch. Reports the Salt Lake Tribune, kids have endured:

Children living in crowded quarters that led to upper respiratory illnesses. Youngsters plagued with diarrhea from unhealthy foods they usually did not eat. Distressed mothers enduring widespread rudeness - such as flashlights shined in their faces as they tried to sleep.

Mental health professionals who helped care for FLDS women and children in the weeks after an April raid on the YFZ Ranch describe conditions and treatment they perceived as harsh and unnecessary.

"Never in all my life, and I am one of the older ladies, have I been so ashamed of being a Texan and seeing what and how our government agencies treat people," wrote one employee of Hill Country Community Mental Health and Mental Retardation Center in an unsigned statement.

Texas contracts with Hill Country to provide mental health services during disasters. Staff members met with the center's board of trustees last week, leaving them "spellbound." The board has gathered nine written statements critical of Child Protective Services.

Chairman John Kight said he wants state legislators and the governor to hear the employees' stories. "You have damaged these children for their lives," he said. "This is an agency that looks like it's gone out of control."

The tales from these mental health workers included one of the most sad, poignant images yet to emerge from this debacle, describing:

A boy estimated at age 3 walked along a row of cots asking for someone to rock him after he was separated from his mother, one employee wrote. Two CPS worker trailed the youngster taking notes but not helping him. His brother, age 8, eventually took the child into his arms and sat with him in a rocking chair.

"That little boy will always be in my mind," the employee wrote. "How can a beautiful, healthy child be taken from a healthy, loving home and forced into a situation like that, right here in America, right here in Texas?"

How, indeed? Remember, this is supposedly justified on the theory that 30-40 years from now this 3-year old boy "may" become a sexual predator.

My God, Texas ... what in heaven's name have we done? And how long before Texans of good conscience find the courage and means to stop it?

UPDATE: From the Salt Lake Tribune, here are links to the letters from MHMR workers:

"The floor was literally slick with tears ..."
Here are links to letters written by staff members from the Hill Country Community Mental Health-Mental Retardation Center, which provided assistance to FLDS women and children in San Angelo shelters in April. They are critical of conditions in the shelters and how child welfare workers treated the women and children.

"This was a travesty."

"This situation was a tragedy."

"It was heartwrenching."

"Our roles bacame... confidant and a broker."

"That is a very good question."

"Ashamed of being a Texan."

"I often felt helpless."

"Vast amounts of hypocrisy."

"Even to be an observer was difficult."

"This incident... is not what America or Texas stands for."

"Even the simplest request was discounted."

Dallas News backs innocence commission

Reacting to last week's "Innocence Summit" (see Grits coverage here and here), the Dallas News on Sunday editorialized in favor of the state of Texas creating and "innocence commission," an idea that I think has merit but which is also vague enough to become a mere do-nothing PR stunt if it's not given sufficient authority.

The News editorial focused on stories of the nine exonerees in attendance at the event, who collectively spent more than 161 years behind bars for crimes they did not commit. Said the News' editorial board:

Some told their stories with passion and resolve, others with sadness. The facts chill to the bone. They reveal how scant or sketchy evidence, faulty witness identification, faulty forensics and gamesmanship by prosecutors helped railroad innocent people – and let the guilty get away.

"It was a nightmare," said Mr. McGowan, erroneously picked out of a photo lineup by a rape victim in Richardson in 1985. "It could happen to your kids; it could happen to you."

Lawmakers in Texas must do something about that ghastly possibility. Eight lawmakers were in the audience Thursday to hear the testimonials of the exonerated men. Also attending were legal experts, judges, police brass and other law enforcement officials.

They gathered at the invitation of Sen. Rodney Ellis of Houston, who has championed the forMation of a state innocence commission to dissect cases of exonerated people and recommend ways to improve the system. The concept is a sound one and has been adopted by at least five states.

It's needed badly in Texas, which has 33 DNA-established exonerations to date, more than any other state. Seventeen are from Dallas County, more than in any other U.S. county.

News flashes about Dallas cases obscure the fact that local exonerations would not be achieved were it not for the sound practice of storing biological evidence in all criminal cases. No other Texas county has done that; one can only imagine how many wrongly convicted people from the 253 other Texas counties have no shot at DNA exoneration. A special commission could recommend best practices for evidence storage, among a long list of other law enforcement procedures.

To be effective, an Innocence Commission needs authority to do more than just make recommendations, but should have the power to review possible wrongful convictions independently, especially where scientific advances or other evidence cast doubt on whole classes of older final convictions. There needs to be some vehicle for innocent people whose cases are examined to actually be released if they didn't commit the crime.

For example, I've been writing about arson cases and how many past convictions were based on flawed forensic evidence that's since been disproven, including one death penalty case where the defendant was executed. These cases may be among the best reasons for creating an innocence commission - with arson we find a class of hundreds of cases that all need to be vetted because of new scientific advancements casting many old convictions in doubt. There's no procedure in existing law for handling that problem.

Last year legislation to create an innocence commission was killed by Democrats in the House Criminal Jurisprudence Committee after passing out of the Republican controlled Texas Senate. The Chair of that committee, Tom Craddick ally Rep. Aaron Peña, was noticeably absent from last week's innocence summit, so it's hard to say whether his committee will be any more receptive to the idea in 2009.

If an innocence commission would have teeth and power to investigate old cases, I think it could be a great idea. If it's going to become a watered down entity that only makes recommendations, though, there are plenty of substantive procedural reforms - including improving eyewitness ID procedures, recording interrogations, giving prisoners limited open records access, and improving access to the courts for writ writers - that could more effectively prevent or correct wrongful convictions.

BLOGVERSATION: Scott Greenfield at Simple Justice says every criminal case needs an "innocence commission of one," with the judge as the "innocence commissioner." I don't think that's how Texas judges tend to view their jobs, certainly at the highest appellate levels.

Dropouts and Crime: Dallas using GPS in pilot truancy program

I've never been a believer that GPS tracking systems are a serious alternative to incarceration in most cases, but for certain offenders they make a lot of sense. The New York Times this morning focuses on the use of GPS to combat juvenile truancy in Dallas, which might just be one of those areas where the technology is worth the bang for the buck ("To curb truancy, Dallas tries electronic monitoring," May 12).

That's because GPS doesn't restrict those wearing it, so it doesn't actually prevent crime. But it can provide metrics for authorities to check on the location of an offender to ensure they're where they're supposed to be, which is exactly what's needed in truancy cases. It's certainly a superior alternative for truants than juvenile detention!

It's nearly a truism that jails and prisons fill up when society's other institutions fail, and two of the biggest crime-generating failures IMO involve our indigent mental health systems and public schools. This blog has focused more in the past on the mental health system's contribution, but here during graduation season, it's worth considering in more depth the role public schools play in contributing to crime, or rather in failing to prepare kids to have and exercise better options.

The group America's Promise, founded by former Secretary of State Gen. Colin Powell, last month produced a public policy report on the high school dropout crisis (pdf) in America, and even though I knew things were bad, the numbers shocked me:

Powell's group says that one US kid drops out of high school every 26 seconds. A chart on page one analyzing high school graduation rates in the '03-'04 school year shows national graduation rates for all students are just 69.9%, but in the 50 largest cities kids graduated at only a 51.8% rate.

Some of this is skewed by race, but in the big picture tens of thousands of kids of all races are poorly served by public schools. Nationally black kids ranked the lowest, graduating at an abominably poor 53.3% rate, while white kids' graduation rate was a still anemic 76.2%.

Dallas ISD has the worst dropout rate in Texas among large cities, according to America's Promise, but all the big Texas cities fell far below the already-abysmal national average:

Dallas: 44.4%
Houston: 54.6%
San Antonio: 51.9%
Austin: 58.2%
Fort Worth: 55.5%

I'd concur with America's Promise that, "If three out of every 10 students in the nation failing to graduate is reason for concern, then the fact that just half of those educated in America’s largest cities are finishing high school truly raises cause for alarm." Even for those who graduate, there's a real question whether US high schools have adequately prepared them for the work force. But in the modern economy, what future awaits the masses of folks who never even complete high school?

Why does this matter for the criminal justice field? Most American kids who drop out of high school have two things in common: They have few marketable skills and have never learned how to work hard. Bottom line: That makes it a lot more likely they wind up selling drugs or burglarizing your house for a living instead of getting a job, paying taxes, etc..

A study produced in 2007 (see chart on p. 19 of the pdf) promoting school choice in Texas calculated that, "Although the chances that any one individual will be incarcerated are small, the probability is more than twice as high for a Texas high school dropout as it is for a Texas high school graduate."

Straight-up illiteracy is a key criminogenic factor. It's long been known, for example, that while dyslexics make up about 10% of students, they make up 30% or more of those in prison.

As far as reducing crime, an even more important subcategory are kids with incarcerated parents, who tend to be 6-8 times more likely than their peers to wind up incarcerated themselves. Making sure those kids stay in school and have real opportunities to succeed might be the single most important contribution society could make to reducing future crime.

Obviously, it should be said, most dropouts don't go on to commit crimes. My own belief is that it's not the diploma per se that makes the difference, but more often influences at home and whether the kid acquired basic reading and math skills before leaving school. (Beyond that, in my experience, for most people their most important learning is either autodidactic or happens on the job.)

It's not really a surprising assertion that illiteracy and ignorance reduce legitimate economic options, or that that uneducated youth are more likely to commit crimes, but when school districts in major Texas cities suffer dropout rates this horrendous, the raw math of the problem becomes overwhelming.

Wishing a Happy Mothers Day to FLDS Moms

This Mother's Day, take a moment to think about the mothers and kids from the YFZ Ranch in Eldorado who've been separated from each other by the state of Texas, and perhaps give a prayer that, by Father's Day, CPS has separated any actually allegedly abused kids from those where the state just dislikes their parents' religion, and returned the rest to their families, as about 75% of Grits readers appear to favor in the ongoing reader poll.

Otherwise, Happy Mothers Day to FLDS Moms, and to every other parent, spend just a moment today to consider what you really think is the right thing to do in the Eldorado case.

RELATED: From the Houston Chronicle, Mental health workers rip CPS over traumatized kids, disregarding mothers' rights.

Many arson convictions based on invalid science

My recent conversation about arson cases with Innocence Project of Texas director Jeff Blackburn left me more interested in the issue of how and why people are wrongly convicted of arson based on faulty forensic science, and how many innocent people may be implicated.

As it turns out, in 2006 Barry Scheck's Innocence Project in New York sponsored a formal peer review of expert testimony in two Texas arson cases - Cameron Todd Willingham, who was executed for capital murder, and Ernest Ray Willis who was exonerated after courts overturned essentially similar forensic testimony. Here's the full 49-page report (pdf), which is a sad and fascinating read, concluding that:

The State’s expert witnesses in both cases relied on interpretations of “indicators” that they were taught constituted evidence of arson. While we have no doubt that these witnesses believed what they were saying, each and every one of the indicators relied upon have since been scientifically proven to be invalid. To the extent that there are still investigators in Texas and elsewhere, who interpret low burning, irregular fire patterns and collapsed furniture springs as indicators of incendiary fires, there will continue to be serious miscarriages of justice.

What's more, said the peer review committee, the problem wasn't just that forensic science had disproved bad assumptions from the past, but the state's expert witnesses (whose verbatim testimony is vetted in the document in some detail) misrepresented physical science that should have been known at the time. One expert arson investigator, for example, displayed "a surprising lack of knowledge about compartment fire dynamics," and merely behaved "As if constant repetition would make the assertion true."

To judge by this "peer review," every arson conviction obtained prior to the mid to late '90s, or that used investigators trained before that time, should probably be re-examined comprehensively to look for actual innocents who were wrongly convicted. Part of the problem, said the committee, is that:

Prior to 1992 the state of the art in fire investigation was, in a word, dismal. Fire investigators, by and large, were, and continue to be, individuals without any serious training in scientific methodology. More experienced fire investigators would mentor less experienced fire investigators, and pass on what became a collection of myths. Many investigators, who obtained their “basic training” before 1995, were trained with misinformation and misconceptions. Some of those investigators have taken very little additional training since then, and of those, many refuse to recognize how flawed their early training was.

The peer review committee offered a recommendation for what should happen in these old cases, and a pre-emptive dismissal of the inevitable, defensive reactions by those on whose erroneous testimony wrongful convictions were based:

If an investigator is willing to admit that a citizen was convicted based on bad science, then the only civilized course of action is to reopen the investigation. It was resistance to this concept that allowed the state to execute Mr. Willingham, even though it was known that the evidence used to convict him was invalid. When interviewed by the Chicago Tribune about the Willingham case, Mr. Cheever (who was involved in the case but did not testify) acknowledged the validity of published criticism of the conviction. He stated, “At the time of the Corsicana fire, we were still testifying to things that aren't accurate today, They were true then, but they aren't now. Hurst, was pretty much right on. ... We know now not to make those same assumptions.”

Actually, the behavior of fire is no different in 2006 than it was in 1986, so Mr. Cheever’s statement that “They were true then, but they aren’t now” is very far wide of the mark. The laws of physics did not change between 1986 and 2006. What is false today was false in 1986 and 1992. The fact that some poorly trained fire marshal believed it does not make it any more true, although it may make the fire marshal feel better about his errors.

The justice system has no right to take such a “feel good” approach to miscarriages of justice. Inevitably, when a convict like Ernest Ray Willis is exonerated, someone remarks, “See? The system worked!” Even by that low standard, the system failed to work for Cameron Todd Willingham.

The group also made this sensible suggestion that defense counsel should get to retain its own fire investigator in felony arson cases:

Because of the increasingly “scientific” approach to fire investigations, and because scientific evidence is held in such high regard by juries, defendants in arson cases should be afforded the opportunity to retain an independent fire investigation expert to evaluate the State’s expert’s fire analysis. Without expert assistance, defense counsel is unlikely to be in a position to render effective assistance to his client.

Though shoddy DNA labs, questionable ballistic evidence, flawed serology and other crime lab problems have grabbed more headlines, arguably arson is a unique case where forensic testimony needs to be vetted even more closely, said the committee, because:

There is no crime other than homicide by arson for which a person can be sent to death row based on the unsupported opinion of someone who received all of his training “on the job.” All that is necessary for a conviction is that the jury accepts that opinion. If an incompetent witness renders a false opinion in a confident manner, how is a jury to know?

How, indeed?

According to these data, Texas has convicted more people of arson than any other state, followed by Ohio, even though California has double the number of fires caused by arson. You have to wonder if that's because our investigators aren't all using valid forensic science when they make their accusations.

No wonder Jeff Blackburn thinks arson cases may be the next big venue for innocence claims in Texas. Sounds like such a review is long overdue.

What were the terms of TYC's settlement with the US Justice Department over the Evins unit?

The Texas Youth Commission and the US Justice Department entered into a settlement this week over allegations of abuse at the Evins unit in South Texas, but the MSM coverage was pretty vague and I haven't had time until this morning to review the Agreed Order itself (which Jim Hurley graciously emailed me upon request - it's not online).

Here are some highlights:

New Use of Force Rules: Under the previous executive director, use of force rules were revised near constantly, adding and removing pepper spray to the continuum and changing rules on manual restraints until nobody really knew what was going on. The new conservator backed off TYC's more frequent pepper spray use, but it's still not been clear what policies actually govern staff on the front lines. Under the settlement, within 60 days, "the State shall develop and implement policies, procedures and practices to reasonably ensure that only safe methods of restraint are used at Evins, and only in those circumstances necessary for safety and security, and that restraints are never used to punish youth." Senior TYC management must review all incidents involving manual restraint, inappropriate staff-youth relationships, and youth on youth sexual relations.

More Consistent Abuse Reporting: TYC must change its definitions of "use of force," "staff on youth assault," "youth on youth assault," and "inappropriate staff relationships with youth" to comply with DOJ's own terminology and make incident reporting more accurate. DOJ must sign off on the new definitions before they're finalized. You can't tell from the Agreed Order what exactly was deficient in TYC's old definitions, or how the changes might affect overall abuse reporting data. (If somebody knows more details, please let us know in the comments.) The order also requires UTMB medical providers to complete incident reports and report to the Office of Inspector General whenever they suspect staff on youth abuse.

Use of Solitary Confinement Reviewed: The Agreed Order declares that "the State shall develop and implement an evidence-based behavior management program," which at TYC is the euphemism for solitary confinement. Ombudsman Will Harrell has been harping on the overuse and misuse of BMP for many months now, so it's little surprise this is one of the areas requiring remediation.

Revamping Youth Classification, Again: After TYC was criticized last year for hiring a politically connected consultant to redesign its classification system, the Agreed Order will require them to go through the process again. Within 90 days TYC must produce "a classification system that considers factors including youth age, committing offense, gang affiliation, delinquent history and treatment needs to reasonably ensure that youth are safely placed within Evins, and provides for reclassification in appropriate circumstances."

Training: Within 180 days all staff at Evins must be re-trained in approved restraint techniques, de-escalation and crisis prevention, and incident reporting.

Monitoring: DOJ "monitoring shall include, on-site inspections of Evins, interviews with Evins youth, staff and administrators, and a review of relevant documents. The DOJ shall retain a juvenile justice consultant" to assist in overseeing the Agreed order, and will "routinely" report to the court on the progress fulfilling the order. The order doesn't say how often is "routinely," but these reports to the court should tell the tale as far as whether Evins is improving in the covered areas. To "the extent that the DOJ's assessment is that the State is not in compliance with any particular paragraph(s) of the Agreed Order, the DOJ's report shall include the specific factual basis for this assessment and technical assistance recommendations to assist the State in achieving compliance with such paragraphs."

As with many of the reform efforts in the past year, it can be difficult to distinguish at TYC between nice words, which are common, and real change, which has been much harder to come by. The Agreed Order contains many nice words, but only time will tell how much impact this settlement really has.

See related coverage from AP and the McAllen Monitor.

Thanks to the commenter who supplied this link to the Agreed Order (pdf).

Cedric Benson learns there are some things in life Mom can't help you with: Like police brutality

I don't frequently blog about celebrity crime cases, but the story of Chicago Bears running back Cedric Benson's run in with officers from the Lower Colorado River Authority appears to have more dramatic twists the more we learn about it.

Benson was a star at UT Austin but has been a bust on the field in Chicago, so his legal troubles aren't earning him much love among Windy City sportswriters or fans. But since I still remember Benson's Texas career fondly (and as a Cowboys fan, suffer no bitterness regarding the Bears wasting their #4 draft pick on him in 2005), I wanted to highlight some of the oddities about the case that are slowly creeping out and casting doubt on the original story put out by LCRA.

First, I was as curious as Jamie Spencer exactly how they perform a field test "to prove his sobriety while he is still standing on his boat. While it’s on the water. Moving around. Waves underneath the boat." That seems like an inexact science, at best!

Then we learn that the accounts from other witnesses cast a different light entirely on the event. One scared person on the boat actually called 911 to report Benson was being abused by police! The Sporting News reported:

Elizabeth Cartwright, a 22-year-old friend of Benson's from the University of Texas, told the newspaper, "I called my dad and told him, 'Call 911, my black friend is getting beaten up by police on Lake Travis.' It's more what I heard than what I saw. I have never heard or seen Cedric that scared."

Unaware the friend in question was Benson, Jeff Cartwright called 911 and told the dispatcher that police "were beating up a black kid on Lake Travis," the Tribune reports.

Elizabeth Cartwright has written her version of events and wants to submit her account as evidence supporting Benson's claims that he was mistreated by authorities. Benson is scheduled to appear in Travis County Court on May 19.

Lower Colorado River Authority officers said Benson failed a sobriety test while operating a 30-foot boat on Lake Travis near Austin, Texas, and resisted arrest before being hit with pepper spray, Travis County Sheriff's Department spokesman Roger Wade said Sunday.

Benson was released from jail early Sunday on a $14,500 bond. The charges are class B misdemeanors, each punishable by up to six months in jail and a $2,000 fine.

Cartwright, an English major at UT, said she and her fiance had been boating with Benson about six times this spring and each time the Lower Colorado River Authority pulled them over for a safety check.

She said Benson was irritated when the police approached the boat Saturday because of the number of times he has been stopped on Lake Travis.

After the boat passed a safety inspection, Benson was asked to step into the LCRA boat for a sobriety test.

The police say Benson smelled "strongly" of alcohol, became "cocky" and needed to be forcibly removed from his boat.

Cartwright says Benson had two drinks and was not drunk. She also says Benson screamed after being pepper-sprayed, begging his mother, who was in the boating party, for help, saying, "Please stop, Mom, make them please stop."

His mother was on the boat? How drunk do you really suppose the guy was riding around with his Mom! An unsympathetic Jay Mariotti in the Chicago Sun Times gives Benson's version of events:

Benson would avoid league punishment if he indeed wasn't drunk and didn't resist arrest. "I was not intoxicated. There was alcohol on the boat, and others were enjoying themselves, but I wasn't drunk," he told the Sun-Times earlier this week, adding that he was cooperative throughout the ordeal. His description of how he allegedly was dragged to a car, which hauled him to jail, is chilling.

"They kicked my feet out from under me and slammed my face down," he said. "They had a hose and were running it over my face. They were choking me and stuff, not with their hands but with the hose in my face. I couldn't breathe. I don't know if they did that because of the pepper spray, but I didn't ask them to put the hose in my face."

Obviously, someone here is lying, either Benson or the arresting officers. If we ever learn the actual truth, it will be inside a courtroom in several weeks ...

As it turns out, it's not just Benson's family and friends who say the LCRA cops crossed the line. KXAN-TV quoted another witness who gave this account of watching them drag Benson off the boat when they got to shore:

"It was uncalled for, it was ludicrous, no point for it," said Toby Patch.

Patch said what he saw at the Emerald Point Marina Saturday makes him distrust law enforcement.

"It seemed to me they were manhandling him a little bit," Patch said. "As they were taking him up the dock, they stopped, he said, ‘I am fine, I can continue walking,' and they put their legs behind his knees and knocked him over his knees and started hog-carrying him."

Then he said when the officers got Benson to the parking area, things really got out of hand.

"They ended up -- I don't know why -- but laid him on his back, I heard him say, 'Please don't pepper spray me, please don't pepper spray me,'" Patch said.

Elizabeth Cartwright, one of Benson's friends, told KXAN's sister station WMAQ in Chicago that she was on Benson's boat when he was taken onto the Lower Colorado River Authority's boat.

She also said she thinks authorities were out of line.

"You could hear in his voice pain, like I thought he was crying, I thought he was getting beaten up," Cartwright said.

Cartwright said LCRA officers have targeted Benson before.

"I think they know his boat, and we always get stopped," Cartwright said.

Meanwhile, LCRA spokeswoman Krista Umscheid said the agency's officers followed protocol.

I'm not a fan of administrative agencies like the Lower Colorado River Authority having their own police officers for precisely this reason. LCRA was created to operate the dam system along the Colorado River, not to operate its own police force. There's no good reason this function can't be performed by the Travis County Sheriff's Department.

Texas' Code of Criminal Procedure lists 32 different types of specialized police officers, in addition to municipal police and sheriffs. Indeed, Texas has more than 2,500 separate law enforcement agencies registered with the state, many of them not directly affiliated with a municipal PD or Sheriff. (For more background see this written testimony.)

As a rule, higher quality officers go into better paying municipal PDs, county sheriffs departments, or perhaps into federal employ. As a result, often the quality of officers in these peripheral agencies is quite low (and with commensurate pay and training). Even more problematic, there's just not enough high-quality supervisory talent to go around for all these little agencies.

If I were Benson I'd be searching for a top-notch plaintiff's lawyer as well as a criminal defense attorney. I think he's still got a future in the NFL - hell, I'd like to see the Dallas Cowboys pick him up, truth be told; football-wise, he's a stud running back who just wound up injured and in the wrong system. But if his pigskin career turns out to be a bust, perhaps he can make a pretty penny suing LCRA, which has pretty darn deep pockets.

RELATED: A good column on the topic from a San Antonio sportswriter on BlackAthlete.com.

More from the Texas Innocence Summit

Just wanted to mention a couple more highlights from yesterday's "Innocence Summit" in the Texas Chambers before putting my notes away:

Robert Wilonsky cited AP for the money quote from Dallas DA Craig Watkins' presentation, that "It can be argued that Texas ... may have one of the worst criminal justice systems in this country." A couple of heads shot up in the audience for sure, I can tell you, when he made that comment (though nobody spoke up to argue the point).

Some of the strongest exoneree testimony came from Billy Smith, who actually declared that "nineteen years in prison made me a better person," even though he believes strongly that "I am a victim." Why then, is he "better"? "I'm not mad anymore," he declared, "because if I'd hung onto my anger and rage I wouldn't have survived." If he's not mad about what happened, he's certainly a better man than I am.

"It doesn't make a difference if I was in prison two times before," said Smith, "I didn't do this one." Like the other men, Smith knew he was lucky that DNA testing ultimately cleared him. "A lot of innocent people are going to die in prison," he said, "I'll guarantee you that."

Another exoneree, Alejandro Hernandez from El Paso, mentioned an issue I'd like to learn more about: He's concerned that Texas' statute (Chapter 64 of the Code of Criminal Procedure) allowing post-conviction DNA testing only contemplates new tests if the "identity" of the defendant is at question, but he wants to expand the use to help identify other suspects, which he said would have helped in his case. (If I remember correctly, Steven Phillips was also caught in that legal conundrum.) One of the terrific things about so many exonerations occurring back to back to back is that each one is just a little bit different, and frequently, with 20/20 hindsight, it's possible to identify unnecessary barriers, like these limits on post-conviction DNA testing, to clearing more innocent people.

Barry Scheck of the original NYC based Innocence Project emphasized that while some exonerations had come in cases that clearly resulted from prosecutor misconduct, an even more common contributing factor to wrongful convictions is "ineffective assistance" by criminal defense lawyers. He suggested complaints against lawyers on both sides of the aisle should be more thoroughly tracked and vetted (and I would add, publicized). Those sentiments were repeated in some vein by several speakers, including Sen. Ellis.

Senate Criminal Justice Committee Chairman John Whitmire had several poignant comments and questions that are worth recording. For starters, he declared (with Chief Harold Hurtt in the audience) that he thinks Houston PD should not operate its own crime lab, that forensic science work should be done by an independent body who think of themselves as scientists first instead of police. Good point! Regular readers know I'm not a great believer in the supposed neutrality of most forensic science.

Whitmire told the public officials in the room that "You need to read your mail," implying (accurately) that many elected officials pay little attention to jail mail and don't take letters from prisoners seriously. That mentality has contributed to wrongful convictions by sweeping legitimate voices under the rug, he said.

He also emphasized that any legislator who wants to be "tuff on crime" should also be tough on wrongful convictions, because that meant the guilty person went free. Whitmire criticized the Houston crime lab for ending its investigation into possible wrongful convictions before the lead investigator, Michael Bromwich, thought he was finished.

An audience member from Houston protested that they only ended the investigation after the city spent $6 million dollars on it, but Whitmire shot back that they hadn't gone through all the cases, and the Harris DA had $20 million sitting in its asset forfeiture fund that Chuck Rosenthal could have used to finish the job. No rebuttal was offered amidst the awkward silence that followed that declaration!

See yesterday's post about the event for more on the topic.

Elected officials to blame for Harris jail overcrowding, says editorial

Earlier this week Grits placed the blame for Harris County jail overcrowding at the feet of their elected officials, especially local judges, and an editorial this morning in the Houston Chronicle agreed, concluding:

A large part of the jail overcrowding problem resides with the elected judges here. They don't make good use of pre-trial release and other jail diversion programs that allow minor, nonviolent offenders to return to their jobs and families while awaiting trial.

Some judges set up defendants to fail, making the terms of their probation so onerous that successful completion is unlikely. A minor infraction can send a probationer back to jail and then to prison to serve a long sentence.

The Legislature is also to blame. Over the years it has made too many minor offenses felonies. Judges are allowed to set high, unattainable bail, dooming many indigent inmates to months or years of jail time before they have a chance to make their case in court.

Voters in November rejected a bond issue to expand the jail by 2,500 beds, rejecting the notion of placing more Harris County residents needlessly and pointlessly behind bars. That leaves the criminal justice system here with the duty to reduce jail overcrowding by decreasing the number of inmates.

I've gotta say, it seems like the terms of debate on criminal justice topics may be shifting when a major daily is editorializing the Legislature is "to blame" for increasing criminal penalties. For years many in the MSM, including at the Chronicle, have been cheerleaders for heightened criminal penalties as a solution to nearly every social ill, so perhaps we're witnessing what would be a welcome pivot in conventional wisdom.

"Lock 'em up" is never the end of the conversation, especially for county jails. The next question is inevitably, "then what?" Maybe once the media begins asking it regularly, elected officials will follow suit.

Related Grits posts:

• Counties that rejected new jails now must get serious about diversion
• Levin: What should Harris County do now that jail bonds have failed?
• Texans' taxation revulsion vs. their Incarceration Addiction: Which will prevail on county jail building?
• What they're reading at the Harris County probation department (2005 series)
• Grits' best practices to reduce county jail overcrowding, Part One
• Grits' best practices to reduce county jail overcrowding, Part Two

Innocence summit drew officials, opinion leaders from around the state

I attended this afternoon an interesting "summit" on innocence and wrongful convictions in the Senate chamber at the Texas capitol. (UPDATE: See Part Two)

I was a bit annoyed when I was told bloggers couldn't go onto the Senate floor because we're not real journalists, so I didn't get to take the photos I'd hope to get. (That crap really needs to change next session - in all modesty, this blog reports circles around some of the reporters who had credentials to get on the floor.) But even from my perch in the gallery, the discussion was awfully interesting.

Nine exonerated men were on the dais along with Senators Rodney Ellis, John Whtimre, Bob Deuell, and other notables. There were reps from the criminal defense lawyers and the prosecutors lobby, the Texas Criminal Justice Coalition, the Innocence Project of Texas, the Governor's office, two judges from the Court of Criminal Appeals, several members of the House of Representatives, a police union rep, and several DAs and police chiefs, mostly from larger cities.

I was particularly impressed with commentary from James Lee Woodard, a writ writer who spent his entire 27 years wrongfully incarcerated trying to get courts to hear his innocence claims. He suggested that judges needed to look at prisoner writs with a more open mind, and that "jail mail" shouldn't just be dismissed out of hand. Quite a few folks in the room were people who Woodard had personally written about his plight but from whom he never heard a response.

Alejandro Herndandez, an innocent man who spent 13 years for a crime he didn't commit in El Paso, emphasized that in most cases no DNA existed to be tested, and that efforts to discover "innocence" needs to look beyond those cases with available DNA, which are increasingly few and far between.

Hernandez also echoed a call from Brandon Moon, another writ writer freed after 17 years incarcerated for a rape he didn't commit, also from El Paso. Three years ago Moon told a Senate committee that prisoners needed greater access to public records via open records requests in order to get a chance to prove their innocence. Legislators have balked in the past for fear open records requests wold be abused, but denying information to actually innocent inmates clearly inhibits their ability to prove up their defense.

Finally, Court of Criminal Appeals Judge Barbara Hervey said she intends to request more money during the next legislative session to pay for grants for innocence related trainings, and to my surprise declared the court is interested in pursuing either statutory or court-ordered changes in eyewitness ID methodologies, which account for the lion's share of wrongful convictions identified through DNA testing. She also wants an inspection team created to do surprise visits to state and local crimes labs to root out ongoing problems with shoddy forensic science.

I was encouraged so many opinion leaders were there from across the political spectrum, and representing a wide array of interests that are frequently at odds. There is room for consensus on some of these questions, if participants coming at the topic from different angles can each set aside their parochialism and actually look for solutions instead of ways to block them.

UPDATE: See more coverage from AP , The Houston Chronicle, and the Fort Worth Star Telegram.

BLOGVERSATION: Scott Greenfield at Simple Justice is offended on my behalf that Texas bloggers don't qualify for capitol press passes, lamenting "the fact that he types articles that never kill trees renders him less important than the kid from the Podunk Gazette, readership 278." (For the record, according to SiteMeter, Grits had just over 62,000 visitors last month, averaging more than 2,000 visitors per day.) Muchas gracias, Scott, for the supportive commentary.

Roy Mersky, RIP

Claire Osborn has a nice and well-deserved obituary in the Austin Statesman for the late great Roy Mersky, who ran the UT-Austin law library since before I was born. Osborn writes:

Roy Mersky was a giant in his field who made the University of Texas law library one of the best in the nation, friends and colleagues said. Along the way, he taught worldwide, wrote prolifically and compiled a résumé more than 40 pages long.

"He was probably the most famous law librarian in the history of legal education," said Larry Sager, dean of the University of Texas School of Law.

Mersky, 82, died Tuesday at an Austin hospice. The director of the UT Tarlton Law Library had lymphoma and injured himself in a fall days before his death, his colleagues said.

Mersky had a "ruthless" determination to provide "absolutely magnificent" service to all library users, Sager said. "We may never see a heroic figure like Roy again."

Mersky, who fought in the Battle of the Bulge in World War II, was interested in fighting for civil rights and religious freedom, UT President William Powers Jr. said. "He saw the law as a vehicle for doing that."

Mersky built an extensive collection of legal research and rare books at the library, Powers said.

Mersky also established a system so that each law school faculty member had a librarian to help with research, Powers said.

"I cannot imagine the profession without him. ... He was a legend," said Taylor Fitchett, director of the law library at the University of Virginia and a friend of Mersky's for 30 years. A book that Mersky helped write, "The Fundamentals of Legal Research," is the bible of legal research, she said.

Mersky, who was married with three children, became director of the library in 1965 after receiving three degrees at the University of Wisconsin, including a law degree. He pushed the people he trained at the library to teach and publish so that they got top jobs across the country, said Bob Berring, a law professor at the University of California-Berkeley.

The Tarlton Library has long been a gem for legal and political researchers, and more than most other university law libraries it's been a leader in putting useful information online. I only met Professor Mersky a couple of times (he once helped me as a background source on a story), but I knew enough from those encounters to say he was more than just a librarian, a teacher and a scholar, he was an unsung Texas hero. Probably no one will ever know the full extent of his quiet contributions. We may mourn his passing, but should also celebrate a life well lived.

RELATED: Roy Mersky Remembered.

Dallas prosecutor backs shift to 'double-blind' lineups

I'd missed the outstanding news, found via the Eyewitness ID Blog, that Dallas prosecutor Mike Ware (who's spearheading DA Craig Watkins efforts along with the Innocence Project of Texas to identify and reverse wrongful past convictions) now wants to make double blind photo lineups mandatory. That's a major development, and my hope is that many other prosecutors and law enforcement agencies will follow in their footsteps. According to the Eyewitness ID blog:

Ware is now publicly embracing the importance of mandatory double-blind lineup procedures for photo arrays, which is an important and significant development, at least to my knowledge. As we reported previously, Dallas County has been laying the groundwork for a field study on police lineups in a purported attempt to develop more reliable procedures, and until now there appeared to be reason for concern that the study would replicate the fundamentally flawed methodology of the now-infamous Illinois/Mecklenburg study that turned out to be little more than a rubber-stamping of the flawed status quo procedures that continue to cause innocent people to be put in prison.

Now, Mr. Ware is on record stressing the importance of double-blind procedures, which all social scientists (and reformers) have long agreed must be a component of any standard lineup procedure that hopes to reduce wrongful convictions. Presumably this means that the Dallas study won’t repeat the futile endeavor of “testing” blind procedures against non-blind procedures, as was done in Illinois under the guidance of Sheri Mecklenburg, with the number of suspect picks as the measure of “reliability.”

This is big news on the eyewitness ID reform front. We’ll try to stay on top of this as more information on the Dallas field study begins to surface.

Ware's comments came in reaction to the exoneration of Thomas McGowan, in which, the Dallas News reported (April 15):

What is remarkable about Mr. McGowan's case, according to one of his defense attorneys, is the ordinariness of the process that ultimately branded him a rapist.

Richardson police obtained his photograph from a traffic arrest two days after the rape. Out of seven total pictures, Mr. McGowan's color photo was placed in an array that contained three other color originals. A fifth photo was black and white. The remaining two were black-and-white photocopies of photographs.

When the 19-year-old victim tentatively picked Mr. McGowan's picture, she said Richardson Detective Mike Corley told her, "I had to make a positive ID. I had to say yes or no."

Barry Scheck, whose New York-based Innocence Project has worked for the last year to free Mr. McGowan, said the detective's remarks were a routine police practice that the U.S. Justice Department has discredited as improperly suggestive.

By not allowing the victim to describe her certainty in her own words, Mr. Scheck contended, Detective Corley implied Mr. McGowan was the attacker.

"I have no doubt that the officer wasn't trying to do anything wrong here," Mr. Scheck said. "It's just a terrible, bad practice."

Dallas County prosecutor Mike Ware, who oversees the conviction integrity unit, said Tuesday that problems with photo lineups are "a common thread that runs through almost all of the wrongful conviction we've run across."

Victims are going to compare photos and will typically pick the one which most looks like the perpetrator. There is no protocol within individual police departments for how to conduct lineups, Mr. Ware said.

There's little doubt in my mind that Texas could prevent a significant percentage of false convictions by mandating best practices for eyewitness IDs that are already widely used in other jurisdictions: E.g., double-blind procedures, showing photos sequentially instead of as a group, and requiring the neutral lineup administrator to advise witnesses that the perpetrator may not be in the photo array.

RELATED: Craig Watkins, Mike Ware, Innocence Project of Texas Jeff Blackburn, numerous recent exonerees, and others involved with this issue will participate in an "innocence summit" this afternoon from 1-4 p.m. in the Texas Senate chambers. I'm planning to attend, but if you can't make it you can still watch the proceedings here online once they begin. See also several press releases from state Sen. Rodney Ellis regarding today's event and recent exonerations.

Fusion center intelligence gathering in crisis limited to watching local TV news

The Collin County Observer poses a terrific question: What good is the North Texas Fusion Center - an intelligence gathering collaboration between various regional law enforcement agencies - if during a crisis they're getting their information from the local TV news channel like everyone else?

Bill Baumbach put it succinctly: No one seems to be asking the questions, "Why have millions been poured into an early warning system if local officials still believe their best information is from Channel 8?"

Related Grits coverage:

• Fusion centers in Texas: What we have here is a failure to communicate
• Fusion centers might be scary if they actually worked
• The Governor's Great Border Security Power Grab
• Perry moves to consolidate intelligence gathering in Governor's office
• Biometrics slope got slippery awfully quick

Mexican Cartels openly recruiting military, courting public opinion

Here's an amazing example of chutzpah in Gulf Cartel recruiting efforts in Nuevo Laredo: The Washington Post has a fascinating story about public recruiting efforts by the cartels:

It was printed on a 16-foot-wide banner and strung above one of the busiest roads here, calling out to any "soldier or ex-soldier."

"We're offering you a good salary, food and medical care for your families," it said in block letters.

But there was a catch: The employer was Los Zetas, a notorious Gulf cartel hit squad formed by elite Mexican army deserters. The group even included a phone number for job seekers that linked to a voice mailbox.

Outrageous as they seem, drug cartel messages such as the banner hung here late last month are becoming increasingly common along the violence-savaged U.S.-Mexico border and in other parts of the region. As soldiers wage a massive campaign against drug trafficking across Mexico, they are encountering an information war managed by criminal networks that operate with near impunity.

The cartels' appeals -- which authorities generally believe to be authentic recruitment efforts -- seem designed in part to taunt a military plagued by at least 100,000 desertions in the past eight years.

That might be the most brazen act by an organized crime gang I think I've ever heard of! The Post also mentions cartel expenditures aimed at winning the hearts and minds of the public:

Last week, clowns entertained 500 children and gave out presents at a party in the city of Acuña, across the border from [Del Rio in] southeast Texas. A banner said the party was sponsored by Osiel Cárdenas Guillén, the Gulf cartel kingpin who is now imprisoned on drug trafficking charges in the United States.

"Your friend Osiel Cárdenas Guillén wishes you a Happy Children's Day," the banner read. "You are the future of Mexico."

The battle against Mexican drug cartels can never be won solely by force. What's equally needed is to facilitate a cultural transformation on both sides of the border to isolate cartels from the general public to make them more vulnerable. From this account, and others I've seen, the cartels are winning the battle for the public's hearts and minds, even when the government enjoys a short-term interdiction success.

Why won't Texas officials admit YFZ call was hoax?

The first of 463 individual child custody hearings from the Great Eldorado Polygamist Roundup (which is the appellation I've settled on for the incident on this blog), will begin in Judge Walther's court on May 19, reports the Dallas News today.

Can anyone explain why authorities won't just admit the original phone call was a hoax? The same News article reports:

Authorities have decided to no longer pursue an arrest warrant for a man identified by the caller as the man who beat and raped her. The caller said she was a 16-year-old girl and a member of the sect, but officials are investigating whether the call was a hoax by a woman in Colorado.

Really? Are they actually STILL investigating "whether the call was a hoax"? And if so, can we please get some competent investigators on the case?

There's really little question, at this point, that Rozita Swinton, a 33-year old Colorado Springs woman with a history of false allegations and making up fantastic stories, was the person who made the original phone call to a San Angelo women's shelter: The calls came from her phone number and anti-polygamist activist Flora Jessop recorded many hours of conversation with her.

I personally don't believe the Rangers are still investigating "whether" the call was a hoax, at this point. Instead, keeping the "hoax" story alive buys time for lawyers, who are investigating arguments for how to justify the search warrant once they admit they knew that named target wasn't at the YFZ Ranch before they went in.

The Salt Lake City Tribune figured out the phone call was a hoax very soon after the raid. Reporter Brooke Adams seems like a pretty smart gal, but is she really THAT much more clever than the Texas Rangers?

Judge Mary Roman's re-election ensures an "absence of an impartial judge on the bench"

When San Antonio District Judge Mary Roman presides over a criminal case, as the Fourth Court of Appeals recently put it when overturning a death sentence issued by her court, defendants may suffer from the "absence of an impartial judge on the bench."

That's the language they used recently in overturning a death sentence obtained in her court, declaring her behavior had "infected the integrity of the trial process." Reported the Express News:

Democratic primary foe Anthony Zamora cited the 4th Court ruling as the reason he ran against Roman, and the judge countered that relying on the reversal was premature because it was on appeal.

Democratic voters sided with Roman, who does not have a Republican opponent in November.

But it is no longer premature to cite the 4th Court's reversal.

Death penalty cases get a lot of additional scrutiny, but my sources around the courthouse tell me this isn't the only instance where, in Judge Roman's court, there's frequently been an "absence of an impartial judge on the bench" that “infected the integrity of the trial process," not to mention many other judicial functions.

Unfortunately, with no GOP opponent in November, there's little to be done. As the Express News delcared, "Citizens can only hope that she shows a new dedication to professional standards in the future." How frustrating! Roman really shouldn't be on the bench after what amounts to a no-confidence vote by the 4th Court of Appeals and the CCA.

Did understaffing cause "riot" at TYC's Gidding unit?

I'm curious to hear reactions from readers who work at the Texas Youth Commission about the disruption at the Giddings Unit (or "riot," depending on who you talk to) on May 5. AP reported that:

More than 70 inmates at a Texas juvenile prison ran from their dorms and climbed into trees or on top of buildings before staff got them all back inside, Texas Youth Commission staff said Tuesday.

No injuries were reported in Monday's night's incident at the Giddings State School in Giddings, the agency said.

The incident started at about 8:30 p.m. when 74 inmates forced open fire exit doors and ran out of their dorms. Some of them climbed trees and others climbed to the roofs of buildings, said TYC spokesman Jim Hurley.

"There were no fights, no injuries. They just ran around like, well, kids," Hurley said.

The Giddings facility currently holds 375 inmates. Giddings police and the Lee County sheriff's office helped secure the perimeter to prevent escapes while TYC staff got the inmates back into their dorms. The final group of students climbed down from the gymnasium roof about 3:15 a.m.

"TYC works with a unique population juvenile offenders. You have to be prepared for offender behavior, but you can also expect juvenile behavior," said Tim Savoy, TYC communication director. "Fortunately, the youth in this situation were not attempting to assault staff or other youth, or cause major property damage."

A usually reliable reader, though, emailed yesterday to say the situation was more serious than that, that the kids had caused significant property damage. I've not confirmed this report with TYC administrators, but this reader says that

On May 6, 2008 48 youth were transferred from the Giddings Unit to the Mart Unit. Additional Giddings youth will be transferred to the Mart Unit to stabilize the Giddings facility. ... Mart 2 was near riot status within the past few days. It is only a matter of time before riots are common place due to staffing shortages.

So which was it? As TYC PR man Tim Savoy put it, was this a "disturbance" in which "the youth ... were not attempting to assault staff or other youth, or cause major property damage"? Or was it a "riot" that threatened the safety of staff and students? I'd love to hear opinions of those who were there or have more information or background on the topic.

If those kids are organized enough to pull off a mass exodus from the dorms like that, the agency's darn lucky they didn't appear to have significantly malicious intent. As understaffed as TYC facilities are, if the kids really wanted to they could probably just take over with that kind of coordination!

TYC's Giddings facility is the flagship for the whole agency, so if their staffing problems are leading to mass disruptions, I wouldn't be surprised if other, even more understaffed facilities have similar problems soon. What are folks hearing about this episode?

RELATED: From Children and the Law Blog, Interpreting Ambiguities in Media Coverage of Youth Behavior.

Counting the Innocent: A discussion of estmates

As the number of exonerated Texans mount, the media and courts have begun to indulge in speculation as to just how many more actually innocent people might be locked up, both in Texas and elsewhere across the country.

The United States has less than 5% of the planet's population but 25% of the earth's prisoners. When you deal in that kind of unprecedented volume, after a while, mistakes inevitably get made.

The debate was set off officially some time ago when SCOTUS Justice Antonin Scalia cited an estimate by Astoria, Oregon District Attorney Josh Marquis, who calculated in an op ed that the system enjoyed a 99.973 percent accuracy rate. In other words, he estimated the wrong person was convicted only .027% of the time.

See this blog post by Marquis explaining his estimate's methodology, in which he took an academic's running tally of exonerations, multiplied by a factor of ten, then compared it to total felony convictions to get this infinitesimal ratio.

If the error rate were that low, said Scalia, "that rate, he said, is acceptable. 'One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,' he wrote. 'That is a truism, not a revelation.'”

But what if the error rate were higher - and it might be - when would we reach an unacceptable threshold of wrongful convictions? Scalia to my knowledge hasn't given us that benchmark, but Marquis has written that if the justice system "is hurling innocents into prison at a rate of 2 or 3 percent I would agree that such a system is dangerously flawed."

This spring in the New York Times, Adam Liptak took Marquis' estimate as a starting point for a discussion of how to estimate the number of innocent people behind bars. He focused on the principal statistical conundrum in this debate, that "there is no obvious control group to measure these exonerations against."

In other words, whatever you decide is the right numerator for the number of innocence cases, it's difficult or impossible to know what denominator to compare it to.

That's why yesterday I felt pretty good about the innocence estimate based on Texas death row inmates, whose final convictions were reversed at about a 1.52% rate since the death penalty in Texas was reinstated. Unlike murders or sexual assaults, capital murder cases constitute a finite enough group to supply reliable denominator, which as Liptak says is the hardest part of making a credible estimate.

Since I was reacting in part to his calculations, I sent that piece to Josh Marquis and he responded suggesting this caveat, which I mostly agree with:

Here's the problem with extrapolating numbers of "innocents" based on such relatively small numbers when doing systems analysis. One can't say that Valujet is a deadly airline because they lost 75 passengers out of 1000 flights the month that plane crashed. We can say how dangerous flying is in America if we take ALL flihts in one yeear and divide that by air crash deaths.

That's true, and it's part of the tradeoff for using a smaller dataset to make the estimate: It makes the denominator easier to identify, but the margin of error for any estimate becomes greater.

That's why I especially appreciated Marquis forwarding me a letter he sent to the New York Times in response to Liptak's article, in which he updated his estimate in light of criticisms of his math, essentially using a more narrowly defined denominator:

In a column by Adam Liptak Professor Samuel Gross criticized the method by which Justice Scalia relied upon in determining that wrongful convictions are exceedingly rare. Gross' study published in 2005 listed just under 400 cases of both rape, murder, and a few other felonies which he claimed were exonerations. Since it was my arithmetic that is under challenge I refined my statistics. Using federal statistics for the relevant time period (1989-2003) of total rapes and non-negligent homicides only (not merely felonies) and still allowing for the assumption that Professor Gross under-reported exonerations by a factor of 10, so that there were in fact 4000, not 400 false convictions, the rate of rightful conviction is still 99.25%.

No-one is claiming the justice system is infallible and it can always use tinkering but is it better for 1000 guilty men go free to spare one innocent man? How many innocent victims are acceptable losses for those who criticize my math?

Joshua Marquis
District Attorney
Astoria, OR

The DA's updated estimate that perhaps .75% of people convicted were actually innocent gets us closer to the ballpark of the 1.52% number seen among Texas death row exonerees, especially since, Marquis is correct, both numbers suffer from limits because of their datasets and assumptions.

Applying the .75% figure to Texas' prison population, which is currently around 160,000, give or take, that would mean about 1,200 innocent people are locked up in Texas prisons right now. If my estimate based on death row stats is closer to the truth, double that figure.

Those get to be awfully big numbers pretty quickly, don't they? At what point, I wonder, would Justice Scalia consider the error rate too high?

Thanks, Josh, for generously sharing your views and your updated estimate.

Solutions for Harris County jail overcrowding may come at ballot box

I'm beginning to think the only way to solve Harris County's jail overcrowding problem may be at the ballot box this fall.

It's been clear for a while now what policies the county needs to implement to reduce overcrowding, but I don't think they can happen unless voters oust judges who refuse to stop requiring high bail for low-level crimes, not to mention the Chuck-Rosenthal era prosecutorial leadership that's spearheaded policies that overuse the jail.

The Houston Chronicle reports that Harris County may send 1,100 more prisoners to a private facility in Louisiana, joining 600 already housed in contract beds in the Bayou State. According to the Chron ("Harris County may send more inmates out of state," May 6):

the sheriff's department is asking Commissioners Court for permission to send another 1,130 more inmates to Louisiana facilities.

Harris County already incarcerates 600 inmates at a private detention center in northeast Louisiana at a cost of $9 million a year.

The proposal on today's agenda calls for sending 130 more inmates to that facility and negotiating with other lockups for another 1,000 beds on an as-needed basis. At $38 per inmate per day, those additions could bring the annual cost for incarcerating inmates outside Harris County to $24 million.

As of Monday, a little more than 11,000 inmates were being housed in the jail's four facilities, sheriff's department spokesman Capt. John Martin said.

The Harris County Jail is certified to hold a maximum of 9,400 inmates. The state jail commission temporarily has authorized the detention of 2,000 more inmates on so-called "variance beds," nonstandard metal frame bunks on the floor. The county originally was granted permission for 1,000 extra bunks last year, but has had to ask for increases several times in the past year, Martin added.

"We're very rapidly approaching maximum capacity," he said.

For the most part, this is a self-inflicted wound. Big chunks of these inmates don't need to be there. Consultants hired by the county awhile back found that judges have all but quit using personal bonds for many defendants, even where flight risk and the likelihood of re-offending is low.

The Harris DA's office charges felony drug possession when police find paraphernalia with drug residue, though elsewhere such charges get a Class C misdemeanor, i.e., a fine-only ticket. This not only fills up the jails, it needlessly floods the crime lab with petty cases, and state jails with offenders who dont need to be there. Meanwhile, the Sheriff wants to jail more illegal immigrants, and local law enforcement has not utilized new authority to issue citations for certain low-level misdemeanants instead of arresting them.

For these reasons and more, the rise in inmate numbers per se isn't all the Sheriff's fault, but his nonchalant mismanagement has sure contributed to the crisis. The biggest issue for Harris County isn't actually finding jail space, it's finding enough guards to staff its facilities, the Chron reports:

To meet staffing requirements, the Sheriff's Office spent $29 million for overtime at the jail in the fiscal year that ended in February. Most guards are working double shifts more than once a week, Martin said, raising concerns about their health and safety.

"It's a huge concern for us the number of hours that people can physically work without just becoming burnt out or before they get to a point where they're not really as aware as we need for them to be on the job," he said.

Sending more inmates to Louisiana would help offset the amount of overtime the department has to pay and reduce wear and tear on county facilities, Martin said. Leasing space in a similar facility in Texas would cost $45 to $55 per inmate per day, Martin added.

Between $29 million last year in overtime costs, and as much as $33 million per year in lease payments to a private prison - that's around $62 million Harris taxpayers will fork over in the next year that's attributable to understaffing. (Simply hiring enough warm bodies to fully staff facilities can reduce jail costs tremendously.) Bottom line: Sheriff Thomas doesn't employ enough jailers, partially because the county commissioners court hasn't authorized enough, and partly because few people want the job at prevailing wages.

For those reasons, I don't think Harris County can build its way out of the problem, since new jail construction merely add beds the county can't staff at the minimum 48-1 ratio. Spending more than $60 million per year on crisis-type solutions makes no more sense than building jails the county can't staff.

Commissioner Sylvia Garcia said the proposal [to lease beds in Louisiana] appears to be the only viable option. But she said she also thinks there needs to be a full-scale review of the criminal justice system, from arrest and booking to prosecution and sentencing.

"That's a lot of money for short-term solutions," she said.

The county plans to build a 1,100-bed facility in Atascocita, but officials still are examining that proposal.

Last November, voters defeated a $245 million bond referendum to build a 2,500-bed jail in the downtown jail complex.

Commissioner Jerry Eversole said the county has to be wary of building facilities to accommodate its summer jail population since the number of inmates usually falls later in the year.

Voters were right IMO to reject a new jail when the Sheriff can't staff or manage the one he's got, particularly when the elected DA and judges are misusing it to incarcerate too many low-level offenders. Commissioner Garcia is spot on that the solutions lie in re-examining the process, not throwing more money at the problem.

As long as Sheriff Thomas, Chuck Rosenthal, and Houston's current crop of ex-prosecutor judges runs the show, however, such a review would be pointless. The problems were identified years ago, the solutions all proposed, but if the elected people currently in charge won't embrace them, what can you do?

Kuff has more.

Related Grits posts:

• DOJ investigating Harris County Jail
• Marc Levin: What should Harris County do now that jail bonds have failed?
• Counties that rejected new jails must now get serious about diversion
• Pretrial detention, unnecessary incarceration driving Texas jail overcrowding
• Bail blunders boost bulging Harris jail population
• Extra bail conditions: When tough on crime means tough on taxpayers
• Should county government subsidize bail bond companies?
• Lack of counsel, information are bail barriers
• Harris County detains low-risk offenders for no reason
• Homegrown Harris Jail Jam: Jailed probationers swell inmate numbers
• Harris revokes probation most among big Texas counties
• TPPF: Counties must act to prevent overincarceration
• JPI report illuminates causes of Harris jail overcrowding
  
• Harris County officials wrongly think they'll build their way out of jail overcrowding
• Harris Sheriff makes jail overcrowding worse with optional immigration inmates
• Sheriff disingenuous to claim no cost for jailing immigrants

As execution dates resume, how many on Texas death row are likely innocent?

After a brief moratorium in 1922 when Texas shifted executions from the hangings at county jails to electrocution at the state prison in Huntsville, five men were executed on the first day capital punishment was reinstated. Texas won't reach that clip anytime soon, but the execution dates are being set so rapidly right now TDCJ hasn't had time yet to update its website.

CrimProf blog cites a New York Times article reporting that five Texans have received execution dates between June 3 (Derrick Sonnier) and August 20 (Denard Manns). Meanwhile, via Doc Berman I saw this AP story declaring that the "Mexican-born Texas prisoner whose death sentence set off an international dispute and a U.S. Supreme Court rebuke of the White House received an execution date Monday."

States are slowly but surely working through what the Baze case means for them, and Texas' Court of Criminal Appeals is expected to approve the state's procedures in some form or fashion in the coming weeks in the Chi case.

According to data from the Texas Department of Criminal Justice death row information website, Texas currently has 369 inmates on death row, and 405 have been killed by the state since 1982. Another 253 have actually left death row for a variety of reasons, including death by natural causes, murder by other inmates, a commuted sentence (often to life), and for a handful of prisoners, because their convictions were reversed.

(By comparison, "When capital punishment was declared 'cruel and unusual punishment' by the U.S. Supreme Court on June 29, 1972, there were 45 men on death row in Texas and 7 in county jails with a death sentence.")

Since the death penalty was reinstated in 1982, nine Texas death row inmates have walked away free men after a reversed conviction, and another whose conviction was reversed died in prison, according to these data. (Several more had convictions reversed but continued to serve time for other offenses.) Seeing that data, perhaps it's worthwhile to calculate a rough "innocence" rate.

Let's make a few conservative assumptions, for example, that only those ten reversed convictions were actually innocent people sent to death row. Let's also assume none of the executed people were innocent (something I personally don't believe). Leaving aside those whose appeals are still in progress, Texas has executed or removed from death row 658 people, at least ten of whom were innocent. That's a rate of 1.52%.

If those numbers hold up for the rest of the group, five or six people sitting on Texas' death row today are likely actually innocent people who've been wrongly convicted.

Texas AG: Lege intended prosecution of participants in needle exchange pilot it authorized

Egged on by Bexar County DA Susan Reed, Texas Attorney General Greg Abbott sided with opponents of a legislatively approved needle exchange program in San Antonio, likely pushing the issue to the courts - in the form of the prosecution of Christian activist Bill Day, who was arrested for distributing clean needles to addicts - and back to the Legislature in 2009.

See General Abbott's opinion.

I'm not a lawyer, but I find the stance ridiculous. The Legislature authorized a needle exchange pilot in Bexar County, which by definition involves allowing needles to be exchanged with addicts. But according to Abbott, because:

the Legislature has expressly demonstrated its ability and willingness to exclude otherwise criminal acts from prosecution under the Texas Controlled Substances Act--but did not do so here--this office can neither assume nor legislate such an intent.

So in other words, Abbott believes the Legislature intended to allow a needle exchange program in San Antonio but simultaneously intended for participants - both addicts and government employees - to be prosecuted for engaging in it. That's angeringly stupid, but there's little to be done about it until the Legislature gets back to town. Personally, I think Wentworth should have eschewed the opinion and just let the county launch the program. Often in such matters, it's better to ask forgiveness than permission.

Needle exchange legislation in 2007 enjoyed bipartisan support, and its main opponent in the House of Representatives, Dianne Delisi, won't be back next year, so I suspect the pilot won't have trouble passing again. In fact, I wouldn't be surprised if other counties (like Travis) wanted in on the deal. For now, though, Abbott and Reed have succeeded in delaying the project, though for the life of me I don't understand their motives.

First officer from Dallas fake drug scandal heads to prison

Nearly seven years after Dallas authorities became aware that fake drugs had been used by a crooked confidential informant in cahoots with corrupt cops to trump up charges against two dozen defendants, the first involved police officer, Mark Delapaz, has exhausted his appeals and is finally headed to prison for a five year term. Reported the Dallas News ("Dallas officer convicted in fake drug scandal begins prison term," May 5):

A Dallas police officer convicted in what became known as the fake drug scandal turned himself in Monday morning to the Dallas County Jail to begin serving his sentence, the Dallas County District Attorney’s office said.

Mark Delapaz was convicted in 2005 and sentenced to five years in prison after lying to a judge to obtain a search warrant. He had been free on appeal but the Texas Court of Criminal Appeals refused in February to hear his case.

In December, the 5^th District Court of Appeals in Dallas reversed two of Mr. Delapaz’ other convictions that were tied to the scandal in which paid police informants planted fake drugs. Those decisions are being appealed.

Given what we learned recently about loosey goosey informant rules at DPD's sister agency, the Dallas County Sheriff's Department, which allowed one of its snitches to participate in an armed robbery then allegedly helped cover his trail, I don't think this issue has gone away just because it disappeared from the headlines. I'm aware of few agencies outside Dallas PD and the Texas Department of Public Safety that changed their rules regarding informants significantly after the fake drug scandal.

In the past, Grits has wondered why nobody brings up this episode whenever media cover the phenomenon of "Stop Snitching" t-shirts. Within this bitter fable lies many good reasons to "stop snitching," at least as currently practiced, though my view has always been that rather than "stop snitching," what's needed is to reform it.

For those who don't know the story of the Dallas fake drug scandal, it's on par with the Tulia case in the gravity of the injustice and the depth of evidenced corruption, even if it never garnered as much national media attention. Eight DPD Narcotics officers signed false statement confirming field tests of phony drugs in order to accuse 24 different defendants. Delapaz, though, is the first to actually do prison time.

When you include these cases, it brings the total number of innocents exonerated from prison in Dallas since the turn of the century to 41. For that matter, dozens more people were set up by the same informants (who themselves were drug dealers) using real drugs, but those convictions were never seriously re-examined by the previous District Attorney.

See the Dallas News' interactive website for the whole story, and also prior Grits posts:

• Dallas fake drug case shows why many distrust informants
• Truth trickling out in Dallas fake drug case
• Dallas PD hasn't learned fake drug lessons