Fair death penalty administration and proposed Golden State innocence reforms

Since I've been writing more than usual in the last few days about the death penalty, innocence cases, and intersections between the two, it's worth pointing readers to a new report by the California Commision on the Fair Administration of Justice, a study group created to analyze the ramification of recent innocence cases regarding flaws in the justice system in the nation's most populous state. Their latest offering is on CA's administration of the death penalty (pdf).

Here are all the CCFAJ reports and recommendations so far:

• Eyewitness Identification
• False Confessions
• Use of Jailhouse Informants
• Problems with Scientific Evidence
• Professional Responsibility and Accountability of Prosecutors and Defense Lawyers
• Remedies for Wrongful Conviction
• Fair Administration of the Death Penalty

Why not test DNA to corroborate capital innocence claim?

After more than 30 Texas exonerations based on DNA evidence in recent years, I can't understand how Grayson County prosecutors could even consider opposing DNA testing of old evidence before they put a defendant to death this summer who's claiming actual innocence.

Reacting to recent media reports, a witness has come forward who says death-row inmate Lester Bower's long-time innocence claims are true, and that her ex-boyfriend and three other men committed the quadruple murder of which he was convicted. This news arrives just weeks before Bower's scheduled execution on July 22. But inexplicably, the Grayson County DA opposes DNA testing that might corroborate this new testimony, preferring instead to push forward with the execution. Reports the Fort Worth Star Telegram ("Witness says condemned Arlington man not responsible for 1983 slayings," June 29):

Bower’s lawyers say they have identified the four men whom Pearl alleges to be the killers, have documented their long criminal records and have confirmed other key parts of her story. In recent months, a defense investigator has also located another witness, the wife of one of alleged accomplices who said she heard the four men discussing the killings. The names of the new suspects, though known to defense lawyers, have remained sealed by court order.

"I don’t want Mr. Bower to die for something that he didn’t do," said Pearl, who broke up with her boyfriend shortly after the slayings and remains fearful of him today. Since she signed the affidavit in 1989, her identity has been concealed by court order. "I know in my heart that he didn’t do it. I just could not in my conscience sit back and just go, 'Oh well, sorry.’

"If he would have gotten life in prison, I can’t sit here and honestly say I would have done something different. Life is what, 30 years in the state of Texas? But he got the death penalty, and there’s no getting out of that."

This past week, Bower’s lawyers filed a 65-page legal motion in Sherman’s 15th state District Court detailing the scenario developed after Pearl came forward. The petition asks state Judge Jim Fallon to delay Bower’s execution, vacate his conviction and death sentence, and conduct hearings on his innocence claim.

Because of the plodding appellate system in death penalty cases — Bower’s appeal languished in federal court alone for 16 years — and the shifting nature of capital punishment law, this is the first opportunity for a Texas court to seriously consider the merits of Bower’s innocence claim, his lawyers say. When Pearl first came forward, Texas law precluded state judges from considering evidence gathered more than 30 days after a conviction. The so-called 30-day rule is no longer in effect in Texas because federal judges have ruled that such post-conviction claims need to be adjudicated by the state.

"Whatever you think about the benefits of having capital punishment, no one could possibly argue that executing an innocent man is in the interests of the state, or our society," said Anthony Roth, one of Bower’s lawyers. "Our interests as lawyers and as people should be that our government, when in doubt, should not go forward with an execution. There is ample evidence to give people reasonable doubt about whether Les committed these murders. In my view, the evidence is compelling that he didn’t."

A Grayson County prosecutor, Karla Hackett, said Wednesday that the state will vigorously contest Bower’s innocence claim. Prosecutors also oppose a defense motion to have saliva, hair fibers and cigarette butts from the crime scene tested for DNA. Bower’s lawyers hope that the analysis will link one of the men accused by Pearl to the crime.

"There’s no way there is actual innocence here," Hackett said, citing the large amount of circumstantial evidence against Bower. "DNA is not going to make all that go away. It’s another delaying tactic. It’s normal. We expect it. There’s four dead men, and all the evidence points straight to Lester Leroy Bower Jr."

The science to match biological evidence through DNA simply didn't exist when a Grayson County jury convicted Bower in 1983. What could be the harm of testing the evidence?

Even if Bower was involved, why ignore evidence that might identify an accomplice? If the conviction was right, the state has nothing to fear from DNA testing. If they're wrong, why wouldn't they want to catch the mistake before the fellow's pending date with the lethal injection chamber?

Does the death penalty deter murder? How about gun control?

Two researchers whose work on death penalty deterrence was misapplied by opposing US Supreme Court Justices in a recent death penalty ruling teamed up today for a Washington Post editorial to clear up the confusion ("A death penalty puzzle," June 30).

The whole thing is well worth the read, but here's the money quote: "the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty."

RELATED (somewhat): The New York Times yesterday reacted to the Supreme Court's Heller ruling by interrogating evidence that gun control reduces crime. Similarly to the case for death penalty deterrence, the Times reports that "Many criminologists say cultural, economic and demographic factors play a big role in murder rates, and some say the number of guns and the number of murders may well be uncorrelated."

So there's no hard evidence killing people who kill reduces murder, and scant reason to think reducing gun availability does so. These results make you wonder exactly what if any public policies do evidence murder rate reductions?

Death row exoneration show flaws in sex offender registration concept

While we're on the subject of botched capital murder cases in Plano, I'd be remiss not to mention another recent exoneration from death row - Michael Blair, who was convicted of raping Ashley Estell in a case that spawned Texas' sex offender registration laws. The Texas Court of Criminal Appeals overturned his conviction last week based on an actual innocence claim. Reported the Dallas News ("Appeals court overturns Michael Blair's conviction in Ashley Estell case," June 26):

Steve Miers, Mr. Blair's defense attorney who handled the original trial, said he doubts his former client will be tried again in Ashley's death.

"In my opinion, that's not very likely, because exhibit number one is going to be the press release from Mr. Roach saying that there's another suspect," Mr. Miers said.

Collin County investigators found a "person of interest" who might have been connected to Ashley's death. That man could not be cleared as a suspect, but he died more than 10 years ago.

Hair evidence that supposedly connected Mr. Blair to Ashley's body has been disproved by DNA testing that was not available at the time of the trial. Additional DNA testing showed that there was no forensic evidence placing Mr. Blair at the crime scene or connecting him to Ashley.

Ashley's death prompted state Sen. Florence Shapiro, R-Plano, to create a series of stricter sex offender legislative changes, now known as "Ashley's Laws." She said in a written statement Wednesday that Mr. Blair's overturned conviction doesn't lessen the value of those laws.

"That does not diminish the fact that Ashley Estell was molested and murdered; and that Ashley's Laws ... stand as strong today as they ever have," Mrs. Shapiro said. "From 1995 until today, these laws forever changed the way the state of Texas deals with these heinous crimes."

Sen. Shapiro sounds a little defensive, and perhaps she should. She's correct that Blair's exoneration indeed does not "diminish the fact that Ashley Estell was molested and murdered." What it does do, however, is demonstrate how easily the harsh laws Sen. Shapiro spearheaded can be applied to the wrong person. (The man DNA identified as Estell's actual killer died ten years ago without being prosecuted for the crime.)

Three factors contributed to Michael Blair's wrongful conviction: Inaccurate eyewitness testimony, shoddy forensic science, and assumptions of guilt by police based on Blair's past conviction for sex crimes. The sex offender laws Shapiro spearheaded institutionalized such assumptions - encouraging instead of preventing them - making it more likely in such cases the wrong person gets convicted and the guilty man goes free.

Frankly, IMO the whole sex offender registry idea was always more a public relations stunt than a public safety strategy. The registries includes too many petty offenders, they tend to be filled with errors and perhaps most importantly from a public safety perspective, research shows that "community notification deters first-time sex offenses, but increases recidivism by registered offenders." (emphasis added)

Sen. Shapiro is correct that the registration laws she passed "forever changed the way the state of Texas deals with these heinous crimes," but not for the better, and not in ways that necessarily make anyone safer. Indeed, to the extent the laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception.

Courts won't examine alleged judicial and prosecutor misconduct in Charles Hood capital murder case

The execution for Charles Hood has been re-scheduled for September, but there's still little indication that the courts will look into allegations of serious judicial and prosecutorial misconduct before he's executed. The prosecutor and the judge in this case allegedly were having an affair during his capital murder trial. Reported AP:

Hood's attorneys contend his trial judge and one of the prosecutors in the case were involved in an improper and legally unethical romance at the time that tainted Hood's trial in 1990.

Retired Judge Verla Sue Holland and then-Collin County District Attorney Tom O'Connell have declined to address the allegations.

The Texas Court of Criminal Appeals, the state's highest criminal court and where Holland was a judge in the mid-1990s, rejected Hood's efforts to appeal on the grounds of the alleged relationship, citing procedural reasons for the rejection but not addressing the merits of the accusations.

"It is now apparent that the principals involved in the conduct that forms the basis of ... Hood's claim of judicial bias will remain mute until Mr. Hood is executed," Hood's attorneys said in their latest motion to the trial court and the appeals court seeking to block the setting of the date.

Lawyers A. Richard Ellis and Gregory Wiercioch noted both Holland and O'Connell "have been remarkably silent" and neither has denied the allegations "that they were involved in an intimate relationship ... that they themselves took extraordinary measures to keep secret."

They also accused the pair of refusing to cooperate with Hood's investigation.

"This strategy of silence is understandable — if ethically and morally indefensible," the prisoner's lawyers said.

It's nearly unfathomable to me that Hood's execution might occur without the prosecutor and judge in the case ever being required to answer for the record whether they had sexual relations during his trial. In a reader survey last week, 87% of Grits readers (205 out of 235 respondents) said that if the prosecutor and judge were having a sexual relationship, he deserves a new trial. Ineffably, though, the Texas Court of Criminal Appeals did not agree.

To me this isn't an issue of being for or against the death penalty, nor even a question of Hood's guilt or innocence. It's more about preserving a semblance of integrity for the justice system. If the state's willing to enact its harshest punishment in such a case without even examining possible collusion by the judge and prosecutor (they don't call it "pillow talk" for nothing), it all but destroys the system's public credibility. It's one thing for the affair to have occurred at the time - that would represent mere misconduct by two individuals. But it's quite another for appellate courts to know of the allegations after the fact and still allow the execution to move forward without requiring they be vetted. That seems to put an official stamp on the repugnant idea that such conflict of interest could be tolerated.

Finally, if the affair is ever proven - and the principals do not deny it happened, they just don't confirm it - IMO Judge Holland and Tom O'Connell deserve at a minimum to be ridden out of the State Bar on a rail. No one should be licensed to practice law who conceals such information in a death penalty case.

RELATED: See Rick Casey's column on the Hood case, and from the Dallas News, see "Ethics questions in Charles Dean Hood case," in which the editorial board opines that:

The public deserves more than avoidance. This is more than a question of guilt or innocence of one man. Rather, the judiciary must recognize the cloud of suspicion that hovers and the need to clear the air.

Failure to do so risks casting doubt on the quality of justice for the entire period in which Tom O'Connell was DA and Sue Holland presided over cases brought by his office. The integrity of other cases is drawn into question, and that is an affront to a host of crime victims.

Hearing sought in Lubbock for posthumous exoneration based on DNA

The wave of DNA exonerations continues around the state at an impressive clip, but the latest instance comes too late to bring justice for the wrongly convicted man. A Lubbock man convicted of rape in 1986 died in prison while serving the sentence for an apparent wrongful conviction. He's now been excluded as a suspect by DNA posthumously for the crime for which he was convicted. Reports AP:

Attorneys want a court to hold a hearing that could lead to the posthumous exoneration of a man who died in prison while serving a 25-year sentence for rape.

If a court finds Timothy Brian Cole was wrongfully convicted, his would be the first posthumous DNA exoneration in Texas, said Jeff Blackburn, Innocence Project of Texas chief counsel.

Lawyers with the Innocence Project filed a petition Friday asking the 99th District Court in Lubbock for an inquiry into Cole's conviction.

The court filing says evidence in the case had been preserved and was retested. Blackburn said the Lubbock County district attorney confirmed this week to him that DNA testing of a semen sample excluded Cole and matched another man serving time for rape.

The man Innocence Project attorneys believe committed the rape for which Cole was convicted has written letters saying he was the rapist.

The Lubbock Avalanche Journal just began a three part series on Cole's case (see part one here), detailing how flawed evidence was allowed to be submitted at trial, only to be declared harmless error later on by Texas appeals courts. Reported the Avalanche Journal:

The victim who accused Timothy Brian Cole never saw Johnson's photo or looked at him in a lineup. Tim's defense attorney, Mike Brown, could not push during Tim's trial his theory that Johnson had committed the March 1985 rape.

Brown carried the theory through the appeals process. He argued the jury should have been allowed to hear the striking similarities between the March rape and another attack in the same parking lot in February.

The woman was taken by an attacker fitting the same description and following the same methods.

The victim never identified Tim, and fingerprints recovered from the earlier victim's car didn't match. The circumstances should have raised doubt Tim was involved in almost the same crime more than a month later, Brown argued.

He complained he could not cross-examine the forensic work in the case, either, since the chemist who performed the test sent a subordinate working off of notes to the trial.

Tim lost his immediate appeal in Amarillo. But a higher court chose to take up the issue in 1990, and agreed years later with Brown's argument on the forensic evidence. The case shook up trial law across the state but the victory proved bittersweet.

Tim's fight for innocence stopped.

Yes, the trial court had erred in admitting the evidence, the appeals court ruled, remanding the case to a lower court. But the error in forensics testimony was not significant enough to warrant a new trial, the appeals court found. The court also found the fingerprint evidence collected too weak to matter to a jury.

They had won the battle and lost the war.

Now DNA evidence and confessions by the man whose DNA ultimately matched have forced authorities to take another look, though it's too late to help Tim Cole. Because he is dead, the usual appeals processes are closed to Cole's family who're still seeking to clear his name. The Innocence Project of Texas (IPOT) on Friday requested a posthumous "court of inquiry" into the wrongful conviction. (Conflict alert: I'm a paid policy consultant for IPOT, though I have nothing to do with their legal cases.) IPOT argued in their petition that:

This is an extraordinary case that demands an extraordinary remedy. Because Mr. Cole is dead, he cannot assert his innocence through the normal procedures allowed by law. Despite that, his family- who are as much victims of the original crime as anyone in this matter, just as he was- has a right to have his name formally cleared in a court of law.

The court of inquiry idea seems like a useful approach to posthumous exonerations. There needs to be some way to manage the issue of posthumous exonerations, most obviously for death penalty cases but also in many other instances like the Timothy Cole case. Dying in prison over a crime you didn't commit: What a tragedy

Should states' anti-drunk driving campaign shift to civil side of the courthouse?

More on the question of whether criminal law enforcement is the best way to reduce drunk driving:

The missus just read yesterday's post describing the legal blawgger debate over whether DWI should be criminalized, coming up with what I thought was a clever solution. She thinks the legal tactics to reduce DWI should shift from the criminal to the civil side of the courthouse, using civil litigation to promote and finance anti-drunk driving strategies.

The massive TV ad campaigns that helped drive public opinion so heavily against smoking in the last decade, she pointed out, were financed with billions in civil judgments won by the states in compensation for indigent medical costs. The same could happen with liquor, she suggested.

Under this scheme, states or the courts could allow lawsuits to go forward against alcohol manufacturers just like they did against Big Tobacco. The money would be used to finance prevention schemes, TV advertising, expanded treatment options and other anti-alcoholism measures. Coupled with a TV advertising ban similar to the one for cigarettes, such a strategy would aim not to punish individuals but to change the overall culture, she said, financing the idea with profits from the product that's causing the problem.

Kathy's a pretty smart gal, huh? Whaddya think of her idea?

MORE: See Grits' earlier post, plus earlier discussions from Mark Bennett here, here, and here; from Shawn Matlock, from WindyPundit here and here, and also from Scott Greenfield.

Scheme to finance county jail with immigration detainees puts future Montgomery County finances at risk

Texas counties hoping that federal immigration detention dollars will subsidize local jail building need to pay closer attention to what's happening in national politics, where both presidential candidates strongly support comprehensive immigration reform. In particular, if elected President, John McCain says he will make changing US immigration policies his top priority, according to headlines today. Said McCain:

"It will be my top priority yesterday, today and tomorrow," drawing sustained applause.

"There are 12 million people here and they are here illegally but they are God's children, they are God's children," McCain said, pounding the podium for emphasis as he repeated the words.

The apparent inevitability of an immigration reformer assuming the presidential mantle makes recent financial decisions by some counties about their jails appear short-sighted, perhaps even doomed. Take Montgomery County, which will open a new privately operated jail in August. According to an editorial in the Montgomery County Courier:

county commissioners decided to build a new 1,100-bed facility in 2006, which essentially will double the number of jail beds in Montgomery County when the new facility opens Aug. 1.

The county decided on creative ways to pay for the construction of the jail annex and its operations, which will spare taxpayers additional costs. A nonprofit organization, Montgomery County Jail Financing Corp., was formed to fund the $42 million project. Commissioners make up the members of the corporation, which will build the jail through tax-exempt bonds and lease the facility back to the county.

In turn, the county will pay for the facility by housing federal inmates from the U.S. Marshal’s Service and Immigration and Customs Enforcement at an estimated price of $55 per day per inmate. At 70 percent capacity, the jail annex should pay for itself, according to county officials.

The combination of housing federal inmates and leaving enough bed space for local inmates helps the county pay for the facilities while creating bed space for local offenders. County officials say the contracts should pay for the facility, which will meet the county’s needs over the next 10 to 20 years.

The contracts with the federal agencies are expected to cover operational costs, insurance, $3.4 million in debt annually, as well as the contract with the management firm.

The GEO Group, a private security firm specializing in correctional facilities, will run operations at the annex.

A few years ago, commissioners considered contracting with The GEO Group to operate the existing jail, or at least its 400-bed wing that opened in 2005. However, Sheriff Tommy Gage developed a plan that enabled the county to hire more jail workers, which saved the county money compared with contracting with GEO. The county also contracted with the federal agencies to house nearly 150 of their inmates at the jail wing, enabling the county to bring in around $2 million annually and offset most of the costs of operating the jail wing.

So Montgomery County gets a jail on the cheap only if federal immigration detainees keep the new facility 70% full. If immigration reform passes, though, there's a good chance the recent massive expansion of immigration facilities will cease or even joltingly retract. The demand for new beds is caused by policies both presidential candidates now promise to change. I was quoted recently in the Nacogdoches Daily Sentinel making the same point about a proposed facility there:

Scott Henson, a public policy researcher who authors the Grits for Breakfast blog about Texas criminal justice, said the private prison industry as a whole faces an uncertain future in the U.S. The demand for prison beds to house immigrant detainees may decline with changes to federal policy dictated by the next president, he said.

"The rise in the need and demand for immigration beds is a result of very specific policies," Henson said. "Expansion in cases for Texas U.S. Attorneys in the last 3 years is incredibly dramatic. That was a choice. They could choose not to do it when the next president gets in.

"Who's the next president going to be, McCain or Obama? Both of them favor comprehensive immigration reform. Do you think their attorneys general are going to continue the high rates of prosecution? Probably not. Do you think that once we have comprehensive immigration reform, immigration detention facilities will be a viable investment? Probably not."

Immigration detention rose quickly and dramatically in recent years, but the ascension of a new president, a new crop of US Attorneys and the passage of comprehensive immigration reform could turn that trend around in a heartbeat. Under a President McCain or Obama, in 2-3 years time, who will be surprised if Montgomery County's projected $2 million profit on the jail turns into a $4 million annual debt payment for which the county is on the hook?

There's no free lunch in economics, and as it turns out that includes jail economics, too.

DWI: A social problem masquerading as a crime wave?

A fascinating discussion is underway in the legal blawgosphere regarding DWI, the threat it creates, and whether criminal sanctions are an appropriate response.

Our pal Mark Bennett in Houston began the fray with a discussion of when it's appropriate to refuse a breathalyzer test, concluding there are only two circumstances when you should say "No": When you're guilty, and when you're innocent. (This advice, I should mention, is not universally popular, at least among the folks trying to score convictions.) The main reason to refuse if you're sober, says Bennett, is the possibility of false positives: The error rate on the commonly used Intoxilyzer 5000, he says, is an astonishing plus or minus 25%! That would make breath tests one of the least reliable of the commonly used forensic tests.

Going further in another post, Bennett (accurately if controversially) observed that in the vast, vast majority of cases DWI is a victimless crime. Fort Worth attorney Shawn Matlock really threw down the gauntlet though with the clam that DWI shouldn't be a "crime" at all. As WindyPundit summarized Matlock's position, "when someone gets a DUI, nearly all the legal action is about suspending their license and taking their money. Why not just finish the process and remove the criminal aspect completely?"

Scott Greenfield chimed in to say he thinks Matlock went too far, that DWI should be a crime. But I can certainly see the reasoning behind Matlock's argument, at least for criminalizing DWI only after multiple offenses or if injury or property damage result. After all, non-drunk drivers kill more people than drunk ones; not every risk denotes a criminal act. The current approach treats defendants as cash cows with little regard for prevention. Why not just do away with the pretense?

Windy and Bennett each followed up with statistical explications of the risks from DWI, though for reasons discussed in the comments at Bennett's shop, I don't think they've quite yet identified the data needed to get to a reliable number. Windy concludes from the exercise, "So, don't drive drunk, and don't let friends drive drunk. But if you or your friend happen to drive drunk one night, don't sweat it too much." (!)

This discussion raises a number of fascinating questions to which I don't know the answers (and probably no one does). For starters, what options besides criminal sanctions might reduce DWI, potentially at a lesser cost? How about expanding public transportation? Or maybe taxing alcohol to fund a program of rides home from bars? As with cigarette smoking (which has declined more than drunk driving over a comparable period), TV ads might be more effective at reducing drunk driving than anything a cop can do.

Another question: How much do criminal sanctions deter drunk driving? Punishment only prevents wrongdoing if its certainly applied. In the case of drunk driving, where Bennett estimates officers arrest one drunk driver out of every 114 trips, most drunk driving brings no penalty and thus likely little deterrent. (As Matlock emphasizes, most offenders are more worried about their license suspension than any criminal culpability.)

How much do current DWI laws cost to enforce? It's hard to tell because costs are divvied up among all sorts of state, county and municipal jurisdictions, with some occasional federal money thrown in to boot. (A back of the napkin estimate indicates Texas spends between $80-100 million per year on prison for felony DWIs alone; most DWIs, however, are misdemeanors handled at the county level.) Given the limited deterrence factor of one arrest per 114 drunken trips, would we see a greater reduction in drunk driving if the same resources went to non-punitive means of reducing drunk driving? Maybe.

If DWI is worth deterring as a public policy then it's worth paying to deter. Indeed, we're already paying some unknown amount on a pure enforcement approach that yields limited results. Is criminalizing DWI the best way to go, or does the tactic soak up money that could be used for more effective approaches?

CPS Chief Abandons Ship; 14-day hearing transcrips from Polygamist Roundup now online

In the wake of the botched Great Eldorado Polygamist Roundup, the head of Texas Department of Family and Protective Services, Cary Cockerell, has announced he would retire at the end of the summer. Some legislative committee needs to hold a hearing before he leaves and get Mr. Cockerell on the record about what went wrong with the YFZ Ranch raid.

Meanwhile, the blogger at I Perceive has posted the transcripts from the 14-day hearings for YFZ Ranch kids, see here and here.

Indeed, I Perceive has been keeping much closer track of the case than I have in recent weeks, and those tracking the story should check there regularly. And as always, The Common Room continues to follow the story closely.

New local websites explain "what to expect from jail"

The group Jailmedia has put up several new websites have gone up that include firsthand accounts about various aspects of jail life in Texas' largest county jails:

Harris County Jail
Dallas County Jail
Bexar County Jail
Tarrant County Jail

Why not Austin or El Paso, one wonders? Perhaps down the line. The goal of the websites are to "help the potential inmate or their family and loved ones know what to expect from jail." This seems like an interesting and useful project if it's done consistently and they keep the sites up.

Delay in Waller's DNA testing kept innocent man in prison, let guilty one go free

It turns out that the actual rapist for whose 1992 crime Patrick Waller was wrongly convicted went free earlier this year because former Dallas District Attorney Bill Hill delayed DNA testing for too long. According to the Dallas News, Waller's defense attorney

said prosecutors under Mr. Hill opposed both [of Waller's] requests for testing. One prosecutor testified at a hearing that she would prosecute him again even if the DNA testing cleared him. Two trial judges and two state appeals courts agreed that testing should be denied.

Craig Watkins, who succeeded Mr. Hill as district attorney in January 2007, granted the DNA test to Mr. Waller. The results came back six months ago, but the tests did not fully exonerate him then because the victim was sexually assaulted by two men.

Early this year, DNA from the case matched DNA of a 38-year-old Dallas man serving time for burglary that occurred months after the abduction, Mr. Ware said. DNA connected Byron Demond Bell, the man who was serving a 45-year-sentence for burglary of a residence that occurred months after the abduction, Mr. Ware said. In April, DNA taken from Mr. Bell, now 38, to double-check the hit was once again a match.

Mr. Udashen said Mr. Hill's office paved the way for Mr. Bell to go free.

"Had they done a DNA test back in 2001 or 2005, they would have matched it up to Bell, and Bell would have never been paroled," Mr. Udashen said.

The DA, two trial judges and two appeals courts denied Waller DNA testing, but he turned out to be actually innocent. What does that tell you about the quality of those entities' vetting past convictions for possible innocence claims? Either the courts just aren't taking these cases seriously, or there's some legal standard that's not strict enough to cause them to act when they should.

Hopefully DAs in other jurisdictions who've been opposing post-conviction DNA analysis will take note and begin agreeing to more tests. It's not just a function of freeing the innocent, as important as that is. Waller's case shows that delays in post-conviction testing can also serve to let the guilty go free.

We also learn a little more in the Dallas News story about the witness identifications (four of them) that wrongly accused Waller:

Mr. Waller was arrested after a Dallas police officer selected him from a photo lineup as one of two men who fled from police in the West End days after the robbery.

At trial, prosecutors presented the identification of Mr. Waller by three of the victims and the police officer. They also introduced testimony from a forensic analyst who said Mr. Waller's blood type was consistent with that of the rapist. No DNA testing was performed at that time.

A Dallas County jury convicted Mr. Waller of aggravated robbery in December 1992 and sentenced him to life in prison. Mr. Waller then pleaded guilty to two aggravated kidnapping charges in exchange for dual, 30-year prison terms.

This account confirms my sense that police may have biased the witness identifications based on an assumption the police officer ID'd the right guy. He didn't, of course, but the fact that an officer made the first identification means investigators probably were dismissive of any notion Waller didn't do it. Add three corroborating eyewitnesses mistakenly identifying him, sprinkle in some shoddy forensic science, and Waller's case becomes a near perfect recipe for wrongful conviction.

A prison so nice people "want to break in"?

In Nacogdoches the Utah-based private prison firm Management and Training Corporation hopes to construct a new immigration detention facility reports the Daily Sentinel ("Federal prison proposed for Nacogdoches," June 26). As usual, boosters portray the project as all but a dream come true, both boon to the economy and source of civic pride for the town.

The President of the Nacogdoches Economic Development Corporation actually had the nerve to tell the paper, "Once they see this facility, no one's going to want to break out. They're going to want to break in." Hmmmm. Wanna bet? Reporter Matthew Stoff contacted me for the story and also Texas Prison Bidness blogger Bob Libal, giving the blogosphere a particularly strong voice in the article. Reported the Sentinel:

MTC, which operates five other prisons in Texas, has been criticized for its operation of several facilities, especially an immigrant detention facility in Raymondville, known as "Tent City" because of its prefabricated, windowless appearance.

"MTC is certainly a company that has run into numerous problems and controversies over the years," said Bob Libal, who is the Texas coordinator for the private prison watchdog group, Grassroots Leadership, and who co-authors Texas Prison Bid'ness, a blog that tracks issues related to Texas prisons. "The Tent City example is certainly an egregious one. There have been maggots in the food at Tent City ... Really terrible conditions you hear about in some of these private prisons."

Libal's blog also recorded federal charges filed against four MTC employees in Brownsville for apparently smuggling illegal immigrants using a company van.

Bell responded to the criticism, saying the company is committed to meeting federal standards for prisons. "No one can make any guarantees that something won't draw criticism, but overall, our practice is to run a good, secure correctional facility to ensure that we meet compliance of the contract." Some oversight by federal employees would provide an additional assurance of quality, Bell said.

Scott Henson, a public policy researcher who authors the Grits for Breakfast blog about Texas criminal justice, said the private prison industry as a whole faces an uncertain future in the U.S. The demand for prison beds to house immigrant detainees may decline with changes to federal policy dictated by the next president, he said.

"The rise in the need and demand for immigration beds is a result of very specific policies," Henson said. "Expansion in cases for Texas U.S. Attorneys in the last 3 years is incredibly dramatic. That was a choice. They could choose not to do it when the next president gets in.

"Who's the next president going to be, McCain or Obama? Both of them favor comprehensive immigration reform. Do you think their attorneys general are going to continue the high rates of prosecution? Probably not. Do you think that once we have comprehensive immigration reform, immigration detention facilities will be a viable investment? Probably not."

Henson also said the prison could hurt Nacogdoches' tourism and its efforts to recruit retirees.

"When Nacogdoches gets in the newspaper, I know that the chamber of commerce would prefer that it not be because prisoners had maggots in their food," he said. "One nasty story in the Dallas news about mistreatment there, and all those Dallas retirees all of a sudden say, 'Well, maybe I'll go to Tyler.'"

Dr. Gregory Hooks, a sociologist at Washington State University, said his research casts further doubt on claims that prison construction can bolster economic development. His paper, published in Social Science Quarterly in 2004, examined every prison in the U.S. and its impact on surrounding counties.

"We find no evidence that prison expansion has stimulated economic growth. In fact, we provide evidence that prison construction has impeded economic growth in rural counties that have been growing at a slow place," the paper concluded.

SCOTUS worried about wrong 'spectacle' when prosecuting mentally ill defendants

Having focused so much on the Rothgery and Kennedy cases in recent days, I failed to update readers on the outcome of another SCOTUS case I've been waiting on, Indiana v. Edwards. The US Supreme Court last week declared by a 7-2 majority (see the opinion) that mentally ill defendants can be denied the right to represent themselves in court.

Essentially SCOTUS said that just because someone is "competent" to stand trial doesn't mean they're competent to exercise their other rights as a free person under the US Constitution. In other words, it's possible to be competent enough to have your liberty curtailed, but simultaneously incompetent to be the person who explains why that shouldn't happen.

According to the New York Times, Justice Stephen Breyer's decision emphasized the "spectacle" of letting mentally ill people pontificate on their own behalf in open court:

Noting that the court has referred to the right to self-representation as an aspect of individual dignity, Justice Breyer said dignity was lacking in the “spectacle that could well result” from a mentally ill defendant’s efforts, which he said were “at least as likely to prove humiliating as ennobling.”

Well, Justice Breyer - what about the "spectacle" of filling up our prisons with mentally ill people so deranged that merely allowing them to articulate their own defense to charges against them is too "humiliating" for the courts to bear?

Is it any less a spectacle if we just lock up mentally ill people in prison en masse without the trial judge having to listen to them personally? Why aren't you humilated by the fact that we've all but criminalized mental illness among the indigent and treat medical conditions with prison time?

In Texas, three of ten inmates in state prisons are prior clients of the state's indigent mental health system, and defendants declared incompetent routinely sit in jail for weeks or months waiting for state hospital beds to open up to do "competency restoration." I consider that unhappy circumstance a more egregious "spectacle" than the efforts (even pitiful ones) by a mentally challenged person to defend themselves in court.

Justice Scalia's retort to Breyer was more philosophical, declaring that the dignity at stake is not whether a defendant makes "a fool of himself by presenting an amateurish or even incoherent defense. Rather, the dignity at issue is the supreme human dignity of being a master of one's fate rather than a ward of the state -- the dignity of individual choice." There is a difference, in other words, between "dignity" and "decorum."

This was an activist decision by judges for judges to make their jobs and lives easier, leaving for some other day any latent concern for either the rights of mentally ill people or the righteousness and public policy consequences of using the criminal justice system as de facto asylums. To that extent, as Justice Alito said in his dissent, “the court’s opinion does not even have the questionable virtue of being politically correct.” Again from the Times:

The decision, Indiana v. Edwards, No. 07-208, drew a vigorous dissenting opinion from Justice Antonin Scalia, joined by Justice Clarence Thomas. Justice Scalia said the treatment Mr. Edwards received in being denied to present the defense of his choice “seems to me the epitome of both actual and apparent unfairness.”

The only reason the court has previously accepted as valid for denying self-representation, Justice Scalia said, was a threat to the orderliness of the trial. But Mr. Edwards was “respectful and compliant” and did not even have the chance to try representing himself ...

Justice Scalia said that “trial judges will have every incentive to make their lives easier” by appointing lawyers rather than giving mentally ill defendants a chance to proceed on their own.

Finally, this is another instance where the court declined to decide the case in a way that's meaningful for practitioners, ensuring, as the Times put it, there will be "sequels." Again from Scalia:

Today’s holding is extraordinarily vague. The Court does not accept Indiana’s position that self-representation can be denied ‘where the defendant cannot communicate coherently with the court or a jury.'…It does not even hold that Edwards was properly denied his right to represent himself. It holds only that lack of mental competence can under some circumstances form a basis for denying the right to proceed pro se…We will probably give some meaning to this holding in the future, but the indeterminancy makes a bad holding worse.

So SCOTUS has said the standard for competency is NOT the standard for self representation, but declined to articulate a new standard for how to determine when someone can't self-represent. That's decidedly unhelpful - or rather, it's helpful only to trial judges annoyed by pro se defendants who now can choose any reason they like to deny mentally ill defendants' self representation.

Via Prevention Not Punishment. See prior Grits coverage and also commentary from Simple Justice and SCOTUSBlog.

BREAKING NEWS: Patrick Waller latest Dallas DNA exoneree; case shows need for 'blind' administrators for police lineups

Hot of the presses, the Dallas County District Attorney's Office issued a press release at 8:22 p.m. this evening announcing yet another innocent Dallas man has been exonerated by DNA evidence and will soon be released 16 years after his wrongful conviction and incarceration. Here's the text:

Patrick Waller is Dallas County’s 18th Wrongfully Convicted Citizen; DNA results clear him of 1992 robbery and kidnapping convictions

(DALLAS – June 26, 2008) – Today, the Dallas County District Attorney’s (DA) Office announced that Patrick Waller, 38, is the County’s latest wrongfully convicted citizen. Waller, who is represented by Gary Udashen, has spent the past 16 years in prison and was serving a life sentence for aggravated robbery with a deadly weapon, along with two 30-year sentences for aggravated kidnapping which arose from the same incident. He is the 18th person in Dallas County cleared of crimes by DNA evidence.

“Technological advances in science have proved another Dallas County man’s innocence and identified the actual perpetrator, but because the statute of limitations has run on these offenses, the State cannot prosecute the two men who did this 16 years ago,” said Dallas County District Attorney Craig Watkins. “This is a perfect example of why I plan to address the current statute of limitations on certain offenses during the 2009 Legislative session in Austin. It is a gross understatement to say that we are displeased with the fact that we cannot seek justice for the victims in this case because of the laws back in 1992.”

On the night of March 25, 1992, a man and his wife were abducted from the West End in downtown Dallas at gunpoint by two men. This occurred as the couple was returning to their parked vehicle. The two abductors kidnapped the couple in their vehicle, forced one of the victims to drive to an ATM in the Oak Cliff community of Dallas and then forced them to withdraw the maximum amount of cash that could be withdrawn from the bank account in one transaction, which was $200. The two abductors then made them drive to an abandoned house. The two men forced the couple inside the house at gunpoint, made them disrobe, tied them up in the basement and sexually assaulted the woman.

Testimony from Mr. Waller’s trial reveals that sometime during this episode, another couple drove up to the abandoned house and the man got out of the vehicle to relieve himself. One of the abductors, identified in court during the 1992 trial as Waller, approached the couple, forced them inside the house at gunpoint and assaulted them with his Tech 9 firearm. The second couple also was forced to disrobe and tied up in the basement with the first couple. The woman from the second couple made a remark about her feminine hygiene product and, at about the same time, a DISD security officer drove past the house — both of which, apparently contributed to scaring the two abductors off without sexually assaulting the second woman. One abductor left the scene in the first couple’s vehicle and the other abductor left in the second couple’s vehicle.

Approximately one week later, Waller’s photo was put in a photo line-up by the Dallas Police Department for reasons that are unclear and three of the four victims picked him out as one of the abductors, resulting in Waller’s arrest. The testimony at trial indicates that the fourth victim (the woman who was sexually assaulted) later picked him out of a live line-up.

There was never a second suspect. Waller testified at his trial that he had nothing to do with the offense and knew nothing about it. He also presented alibi witnesses; however, the jury convicted him and sentenced him to life in prison for aggravated robbery with a deadly weapon.

As part of the Conviction Integrity Unit’s DNA Review initiative, the DNA from the sexual assault kit in Waller’s case was tested late last year (2007). Testing was paid for by the Innocence Project of Texas. The DNA test results concluded that there was only one male profile present and that profile was not from Patrick Waller. During the DA’s investigation, the Conviction Integrity Unit ran the unknown male profile through the Texas Department of Public Safety’s (DPS) CODIS Convicted Offender File, which is a national database of DNA profiles from convicted offenders.

Through CODIS, the unknown male profile came back as a match to Byron Bell, who when confronted about the 1992 crime, confessed to committing the offense. Bell said that his co-actor in that offense was, a 19-year-old (at the time of the offense) African-American male named Mondo Green, whom he had not seen since the night of the offense. Bell later passed a polygraph test as to the identity of his co-actor. Bell also said that he had a 9 mm Glock that night but never carried or used a Tech 9 and did not remember Mondo having one.

The DA’s Office, working with the Dallas Police Department in reinvestigating the case, established that a man by the name of Lemondo Simmons had been associated with the address where Bell said Mondo Green’s grandmother lived. After Bell passed a polygraph as to the identity of his co-actor, they found Simmons and the State subpoenaed him to appear before the grand jury on June 25, 2008.

Because grand jury proceedings are secret and cannot be disclosed, the DA’s Office is prohibited from releasing any of the testimony from that hearing without a court order. However, it is confirmed by the DA’s Office that Mr. Simmons, who unfortunately cannot be prosecuted for the crimes because of the expired statute of limitations, confessed to committing the offense with Bell in 1992.

A previous request by Waller for post-conviction DNA testing was denied prior to District Attorney Craig Watkins’ administration. Records indicate Waller was the third inmate from Dallas County to file a Chapter 64 motion for post-conviction DNA testing after the statute was passed in 2001.

This one blows my mind: In this case four different witnesses wrongly identified the defendant as the perpetrator - three in photo arrays and one in a live lineup - but we now know they were all unquestionably wrong!

Those kind of seemingly unfathomable results make me think about research I've been reading recently on "The Role of Interviewer Behavior in Eyewitness Suggestibility" in prep for my new consulting gig with the Innocence Project of Texas. Unless Waller was simply a dead ringer for one of the actual perpetrators, which can certainly happen, it's hard not to think that biased interviewers somehow influenced these eyewitness IDs, and that the lack of double-blind identification procedures may have contributed to Waller's false conviction.

Faulty eyewitness identifications are the leading cause of wrongful convictions nationwide, but I've never before heard of a case where four different witnesses misidentified the same man in varying versions of police lineups!

I'd like to see police departments shift to these best practices regarding eyewitness ID of their own accord, but since the likelihood of that happening en masse is slim to none, it's definitely time for the Lege to require them to do so in 2009. I'm sick of reading these exoneration stories only to discover that the police practices causing the false conviction are still common as dirt today.

You don't suppose Judge James Nowlin is a UT alum?

My esteem for US District Judge James Nowlin increased after reading this recent order (pdf), found via the inestimable Eugene Volokh in a post from earlier this month. Wrote Nowlin:

Apparently, the parties are unable to agree if the deposition of Wal-Mart's corporate representative should occur in San Antonio, Texas or in Bentonville, Arkansas.

The Court is sympathetic with the Defendant's argument. Surely Defendant's corporate representative, a resident of Arkansas, would feel great humiliation by being forced to enter the home state of the University of Texas, where the legendary Texas Longhorns have wrought havoc on the Arkansas Razorbacks with an impressive 55-21 all-time series record.

On the other hand, the Court is sympathetic with Plaintiff's position. Plaintiffs might enter Arkansas with a bit of trepidation oas many residents of Arkansas are still seeking retribution for the "Game of the Century" in which James Street and Darrell Royal stunned the Razorbacks by winning the 1969 National Championship.

Because the Court is sympathetic to both parties' positions, it has found a neutral site intended to avoid both humiliation and trepidation of retribution.

ACCORDINGLY, IT IS ORDERED that unless the parties agree otherwise, the deposition of Defendant's corporate representative shall occur at 9 AM on June 11, 2008 on the steps of the Texarkana Federal Building, 500 State Line Ave, TX/AR 71854.

IT IS FURTHER ORDERED that each party is to remain on his or her respective side of the state line.

Soooowweeee! (UT fans, see the footnotes in the order for an added bonus.) Volokh didn't say, but how much do you want to bet the parties came to an agreement besides holding the deposition on the steps of the Texarkana Courthouse?! Both the content and the Judge's tactic tickled my funny bone.

Prof. Volokh followed up by posting a nice adumbration by Brian Kalt of the complexities of operating a Texarkana federal courthouse that straddles state lines titled "Article III, Congress, and the Texarkana Courthouse." Interesting stuff; well worth a read.

For Michael. ;)

Rothgery ruling "trumped" counties leeway to delay counsel appointments

From Texas Lawyer, more clues about the impact of the recent Supreme Court ruling in Rothgery and whether it will require Texas counties to appoint counsel earlier in the process ("Released defendants to get speedier access to counsel," June 26):

Wesley Shackelford, special counsel for the Texas Task Force on Indigent Defense, says the Supreme Court's ruling in Rothgery defines when "adversarial judicial proceedings" are initiated under Texas law -- an issue Shackelford says has not been totally clear since the Texas Legislature passed the Fair Defense Act in 2001.

Shannon Edmonds, the Texas District and County Attorneys Association's governmental affairs director, says the Legislature crafted a compromise in the 2001 legislation to provide that if an indigent defendant was released prior to having an attorney appointed, the appointment of counsel "is not required until the defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first." The Legislature included that language in Texas Code of Criminal Procedure Article 1.051(j), he says.

"Now the Supreme Court has trumped that compromise or overturned it," Edmonds says.

Andrea Marsh, executive director of the Texas Fair Defense Project and one of the attorneys who represents Walter Rothgery, says she doesn't view the language in Article 1.051(j) as a compromise. But Marsh says many people have interpreted the language of that statute to mean that indigent defendants who bonded out of jail did not need lawyers appointed as quickly as other defendants.

As Shackelford points out, "That's been the interpretation in most jurisdictions."

Marsh says the Rothgery ruling now makes it clear that the timeline for appointing counsel is the same for indigent defendants who are released as for those who remain in jail.

Under Code of Criminal Procedure Article 1.051(c), an indigent defendant in a county with a population of 250,000 or more is entitled to have an attorney appointed by the end of the first working day after he or she requests the appointment of counsel. An indigent defendant in a smaller county is entitled to have an attorney appointed not later than the end of the third working day after requesting an attorney.

Shannon Edmonds said SCOTUS "trumped" or "overturned" the compromise on when counsel must be appointed, but from my perspective they merely clarified it. SCOTUS ruled that "adversarial proceedings" begin with the article 15.17 bail hearing, so if under Texas law counsel must be appointed "when adversarial judicial proceedings are initiated," the Supreme Court just told us exactly when that is. By this logic, Texas law would require appointment of counsel for indigent defendants who're out on bail and who request a lawyer within a 1-3 day timeframe, depending on the size of the county. (Some counties already do this; most don't.)

So even though SCOTUS didn't stipulate counsel be appointed earlier because the right to counsel attaches at the bail hearing, that appears to be the net result of their ruling under Texas law.

Prior related Grits posts:

• A possible explanation for Rothgery confusion
• Dallas County data entry errors could lead to more wrongful arrests like Walter Rothgery's
• What does Rothgery really mean?
• SCOTUS to Texas: Provide counsel earlier in the process
• Rothgery v. John Wiley Price: Move to slash Dallas defender budget couldn't come at worse time
• When does the adversarial process commence?
• Number arrested with no charges filed closer to 2% than half
• Rothgery oral arguments reveal new insight about murky systems
• Do they really have to appoint you a lawyer when you ask for one?
• SCOTUS to decide in Texas case when right to counsel attaches

How many innocents in prison: Exonerations make up 3% of Texas DNA case resolutions

It's hard to say if the data reflect a rate or percentage of wrongful convictions, but more than 3% of criminal cases solved by DNA since Texas began using the forensic technology have resulted in overturned convictions.

Somehow I'd missed the news announced earlier this year that Texas solved its 1,000th criminal case using DNA. OTOH, Texas has witnessed 33 exonerations of innocent men (mostly in sexual assault cases) using DNA evidence.

DNA exists in only about 10% of violent crimes, so the group is a pretty random sample compared to the larger criminal class. Might the rate of exonerations to convictions based on DNA give a potential wrongful conviction rate? There are a lot of factors going into both convictions and exonerations, so I'm not sure the comparison is entirely valid - too many variables. But at least it adds another data point toward the discussion about how many Texas prisoners may be actually innocent.

I'd noted earlier that death row exonerations occurred at a rate of 1.52% in Texas since the death penalty was reinstated in 1982. The percentage of DNA cases solved resulting in exonerations, however, doubles that number.

So how many innocent people are actually in Texas prisons? If it's 1.52% (the exoneration rate from death row), that would mean more than 2,300 innocent people are locked up in Texas for various crimes. If it's 3.3% (based on the DNA exonerations), the number would top 5,000.

By contrast, the lowest estimate I've seen for the rate at which innocents are convicted - the unlikely low figure of .027% cited by Antonin Scalia - would still mean more than 400 innocent people are locked up in Texas prisons.

Increasingly I'm coming to believe the number's a lot higher than most people working in the system would feel comfortable admitting.

A possible explanation for Rothgery confusion

Folks are still trying to figure out what the Rothgery case decided by SCOTUS this week really means. A perhaps helpful insight comes from the blogger at South Carolina Criminal Defense Lawyer, who points out that:

this was not an appeal from a criminal conviction. It was not a question of a statement that a defendant was asking to be suppressed because he was denied his Sixth Amendment right to counsel. This was a civil claim under 42 U. S. C. §1983. The Plaintiff was arrested and charged with felon in possession of a handgun, although he was not a felon. At his first appearance before a magistrate, he asked repeatedly for his attorney which was not provided to him. He appeared before a magistrate, was released on bail, was indicted and re-arrested, and spent three weeks in jail before an appointed attorney was able to explain to the prosecutor that he was not a felon and should not have been arrested in the first place.

His claim was that if he had been provided a lawyer within a reasonable time after he requested one at the initial appearance before the magistrate, he would not have been indicted, re-arrested, and jailed for those three weeks.

So part of the confusion about Rothgery may be that, since the ruling stems from a civil case, it contains none of the usual trappings one expects from a criminal court decision - the exclusion of evidence, etc.. For example, the court notably declined to dictate at what point in the process Gillespie County must appoint a lawyer, narrowly defining the question they answered in terms of the civil case. However, IMO the court's conclusion that Texas' article 15.17 hearing marks the point of attachment for the Sixth Amendment right to counsel still has significant implications for Texas criminal law - at least for counties that weren't appointing counsel until after indictment - even if that's not the context in which SCOTUS decided the question. This was a narrow decision, but for Texas at least, not quite vanishing.

Death penalty in Texas' 'Jessica's Law' not viable after SCOTUS' Kennedy decision

SCOTUSBlog reports that the US Supreme Court's ruling in the Kennedy case out of Lousiana bars states from legislating the death penalty for the crime of child rape "when the victim does not die and death was not intended." The 5-4 ruling written by swing-man Justice Anthony Kennedy will invalidate a portion of Texas' new "Jessica's Law" statute, which included the death penalty for the second offense.

Though the ruling will disallow a portion of Texas' statute and the state participated in an amici brief to support Louisiana's position, the ruling will affect no pending Texas cases. That's because, cleverly, the House members involved with Texas' 2007 Jessica's Law - notably Jerry Madden and Dan Gattis along with Rep. Debbie Riddle who accepted their amendments on the House floor - found a way to put off the real-world application of the death penalty with a bit of legislative sleight of hand.

They created a new statute - "continuous sexual abuse of a child" - which did not previously exist in the world, so no one had ever violated it before. Since the first conviction for this new crime gets a mandatory 25 year sentence before parole could even be considered, the first possible Texas death sentence for this crime could have come sometime around 2033.

I didn't support the final product and still think it has other problems, but I've gotta give Gattis, Madden and Riddle credit for a nifty piece of law-writing, performed in a highly politicized environment with lots of pressure from the leadership to pass a bill including a death sentence. Thanks to their prudence, Texas avoided having DAs pursue high-profile, emotion-filled death-penalty cases based on what turned to be an unconstitutional premise. For once we didn't actually step in the cow patty before having to clean it up.

See the SCOTUSWiki page on Kennedy, a roundup from the Stand Down blog, and related coverage from Doc Berman at Sentencing Law & Policy. Here's the intial New York Times coverage.

UPDATE: See the statement on Kennedy from the Texas Association Against Sexual Assault in support of the SCOTUS opinion, as well as intitial reactions from Corey Yung at the Sex Crimes blog.

NUTHER UPDATE: Shannon Edmonds from the Texas District and County Attorneys Association emails to say I'm remembering the House version of "Jessica's Law," that the version that cleared the Senate did include the death penalty for near-term offenses. Writes Edmonds:

First, most prosecutors did not support the death penalty provision; in fact, several elected prosecutors (including John Bradley) publicly testified against that provision during committee hearings on the bill, and even after its passage, no prosecutor has sought death in any such case, so I think your fears about Texas leaping before it looked are misplaced.

Second, the death penalty provisions of Jessica's Law applied to the repeat commission of certain "super"-aggravated sexual assaults against children. It did not apply to continuous sexual assault of a child. (Earlier House versions of the bill did so, but that was changed in the Senate).

Third, due to the particular wording of the statute, the death penalty was very much on the table for those repeat "super"-aggravated offenders as of September 1, 2007.

Fourth, at the urging of prosecutors, the law included a savings provision that ensured a sentence of life without parole for those "super"-aggravated offenders would survive an adverse ruling from SCOTUS.

In any event, in whatever form the death penalty made it into Texas' Jessica's Law and similar statutes in other states, it's now been defenestrated by the Kennedy ruling. Thanks Shannon for the clarification on Texas' statute.

CCA backs off changes to attorney-client privilege rule

The first dead-tree coverage of a proposed change to the Texas attorney client privilege rule didn't arrive until after the idea was retracted. The Court of Criminal Appeals last week backed off a proposed change to Texas' attorney client privilege rule in response to complaints generated in the blogosphere. Reports Texas Lawyer:

The Texas Court of Criminal Appeals has defused a heated debate that has raged in blogs and e-mails to CCA judges over a proposal to eliminate a special rule of privilege in criminal cases. CCA Judge Cathy Cochran says the state's highest criminal court unanimously decided June 16 to defer the proposed deletion of Texas Rule of Evidence 503(b)(2) at least six months to allow ample opportunity for all interested parties to draft a proposed substitute for that rule or to draft a rule or statute to govern the attorney work-product doctrine.

This was a debate that occurred almost entirely within the blogosphere or though private emails, with the MSM apparently only noticing what was happening after the fact (with the exception of SA Express New reporter Elizabeth Allen on her own blog). Robert Guest at Dallas Criminal Defense Lawyer and Mark Bennett at Defending People first raised the alarm, then Court of Criminal Appeals Judge Cathy Cochran graciously authored a guest post on Grits explaining the court's suggestion. Keith Hampton from the Texas Criminal Defense Lawyers Association authored a guest post in response, while Jeff Rambin at Tyler Appeals also weighed in. See also the academic memo that started all this and an analysis by federal public defender Richard Anderson.

Perhaps it's the case, as Judge Cochran declared in her guest post, that the rule is a "vestigal tail" with "no wag," but the truth is the CCA has trust problems with the defense bar, not least because the presiding judge openly declares herself pro-prosecution. What's more, the court fairly routinely identifies as "harmless error" in its rulings all sorts of egregious errors that clearly did indeed cause harm, a fact the defense bar well knows. So there's little reason for defense lawyers to trust the CCA's good intentions or believe it when the court says the change won't hurt them. From their perspective, the CCA's idea of what's "harmless" routinely includes quite a bit of possible harm.

It was the right move IMO for the court to give the defense bar more time to come up with alternative language. It might be wiser still for the court to just let this sleeping dog lie, vestigal tail and all, letting some future court with more balance and fewer credibility issues with the defense bar tackle purely cosmetic changes to the rules.

Dallas County data-entry errors could lead to more wrongful arrests like Walter Rothgery's

Why should anyone care if the Dallas County Sheriff has flaws in its data entry for crime reporting or allows uncredentialed people to use the system? You might ask Walter Rothgery, the Gillespie County defendant who was falsely accused of being a felon in possession of a firearm when he had no prior felony conviction. (His arrest and the denial of an attorney to defend against those false charges just led to a new Supreme Court ruling.)

The Dallas News last week ("Audit reveals flaws in how how Dallas County Sheriff's Department uses state, federal databases," June 19) detailed similar data entry problems in Dallas County to the one that led to falsely accusing Mr. Rothgery and launching his federal civil rights case. Reported the News:

A state audit of the Dallas County Sheriff's Department's use of state and federal criminal justice databases revealed a lack of required training as well as some inaccurate records.

In January, the Texas Department of Public Safety audited the department's use of the FBI's National Crime Information Center computer database as well as the state version, the Texas Crime Information Center system.

The audit said terminal operators must receive required training, as must Sheriff Lupe Valdez, Executive Chief Deputy Jesse Flores, Chief Deputy Gary Lindsey and two assistant chiefs.

The audit also found that some records that have been certified by the Sheriff's Department as being complete and accurate were inaccurate. Other records needed to be double-checked by a second person for accuracy.

For want of a nail, the shoe was lost, for want of a shoe, etc., etc. ... If data entry errors hadn't caused Rothgery to be falsely accused in the first place, Gillespie County would never have suffered the consequences from his wrongful arrest and detention, not to mention the cost and embarrassment of a loss at the US Supreme Court.

Data entry sounds like perhaps the most boring part of law enforcement duties. But in the modern information age - when errors can travel in seconds across the continent to compound themselves in other jurisdictions - it's more important than ever that criminal justice agencies get that stuff right.

Mental health and school finance implicated in TYC policies

Two otherwise unrelated stories about the Texas Youth Commission show how interconnected the agency and its facilities are at a fundamental level both with other social service agencies and the communities they serve.

First, the Texas Observer blog wonders if the Texas Youth Commission can ever be fixed as long as it remains a dumping ground for the failures of schools and the indigent mental health system.

Perhaps the agency has been so hard to rehabilitate because its problems extend beyond a handful of troubled facilities or a flawed approach to juvenile justice. Mental health advocates blame public officials’ failure to recognize the importance of early intervention programs within the mental health system statewide as a key culprit.

“If we addressed these problems early on, with community and school-based programs, these kids wouldn’t end up at TYC,” says Jodie Smith, public policy director of Texans Care for Children.

But, in Texas, a state ranked 49th in the nation for mental health funding, kids in need often don’t get any psychiatric help until they are already deeply entrenched in the criminal justice system. ...

The fact remains, however, 38 percent of its youth have serious mental health problems, and another 72 percent come from “chronically chaotic households” (a condition often linked to later development of PTSD, depression and addiction)—shifting the culture and practices of the agency to meet such a large need takes money, resources and time.

Meanwhile in a bizarre TYC-related development, a tiny West Texas school district struggling to make up lost revenue when TYC closed the Sheffield unit has contracted to provide educational services in Galveston for the "Seaborne ChalleNGe Corps, a military-style program for troubled teens based in Galveston" operated by the Texas National Guard.

The Iraan-Sheffield school district pursued the arrangements because of revenue lost when the Sheffield unit closed earlier this year, hoping to generate revenue entrepreneurially to make up for TYC's past subsidies to local programming.

Though there's nothing wrong with it per se, this strikes me as an unusual arrangement. I don't know of any other school district providing contract correctional education services outside their own jurisdiction, nor was I previously aware the National Guard ran youth camps. Live and learn.

Asset-forfeiture dependent Sheriff views Hwy 77 as a "piggy bank"

Not long after the Texas State Senate held an informative hearing on law enforcement's use and misuse of asset forfeiture funds, NPR's John Burnett offered up this report I'd missed giving a global overview on the topic, but profiling specifically the Kleberg County Sheriff, who called US Hwy 77 a "piggy bank." Reported Burnett:

Federal and state rules governing asset forfeiture explicitly discourage law enforcement agencies from supplementing their budgets with seized drug money or allowing the prospect of those funds to influence law enforcement decisions.

There is a law enforcement culture — particularly in the South — in which police agencies have grown, in the words of one state senator from South Texas, "addicted to drug money."

Part of the problem lies with governing bodies that count on the dirty money and, in essence, force public safety departments to freelance their own funding.

In Kleberg County, where Kingsville is the county seat, Sheriff Ed Mata drives a gleaming new police-package Ford Expedition bought with drug funds. This year, he went to his commissioners to ask for more new vehicles.

"They said, 'Well, there ain't no money, use your assets,' " he says. He says his office needs the money "to continue to operate on the magnitude we need."

Another county agency, the Kingsville Specialized Crimes and Narcotics Task Force, survives solely on seized cash. Said one neighboring lawman, "They eat what they kill." A review by NPR shows at least three other Texas task forces that also are funded exclusively by confiscated drug assets.

The concern here is that allowing sworn peace officers — who are entrusted with enormous powers — to make money off police work distorts criminal justice.

"We're not going to sidestep the law and seize people's money just for the financial gains of the department," Tamez says. "It's not going to happen."

If law enforcement is so brazenly violating federal restrictions on using forfeitures to supplant their own budgets, that's one more good reason for the Legislature to consider taking a portion of those funds to finance drug courts and treatment programs.

What does Rothgery really mean?

Lots of talk in the legal blawgosphere about what today's Rothgery decision from SCOTUS really means:

Gideon at A Public Defender says the Rothgery ruling is narrower than I've portrayed, while TalkLeft interpreted the outcome more as I did.

Orin Kerr at the Volokh Conspiracy thinks Rothgery raises as many questions as it answers.

Scott Greenfield is also confused what the decision does in practice.

Crime and Consequences calls it a "narrow, almost vanishing, opinion on counsel."

Carolyn Elefant at Legal Blog Watch wonders if Rothgery actually won!

See also an initial story from AP and more nuanced coverage from Law.com.

Austin Reentry Roundable seeking input on policy priorities

Tomorrow night (Tuesday, June 24) the Austin Travis County Re-Entry Roundtable invites the public to contribute to crafting the group's 2009 legislative agenda, via email:

The Austin/Travis County Reentry Roundtable invites you to join us for our upcoming "Policy Reform" community forum.

Recognizing that people with criminal histories face significant barriers and that more effective reentry policies and laws will provide a greater opportunity for success, we ask that you please join us as we identify and prioritize issues that will determine the focus of our advocacy work both now and during the legislative session.

The forum will be Tuesday, June 24 from 6:00 to 8:00 PM at Town Lake Center (721 Barton Springs Road). Please see the flyer for more details including how to RSVP.

A flyer attached included the following additional detail:

* How can we keep people out of jail while holding them accountable for their actions?

* Do you have a family member or friend who has or will be leaving jail or prison and is struggling with reintegration into the community?

* How do we balance successful reentry of formerly incarcerated people and public safety?

The Goal of this Forum Is To:
Help the Austin/Travis County Re-Entry Roundtable's Policy Reform Committee identify the policies, practices, and challenges that impact successful reentry for persons with criminal backgrounds.

Take their survey and RSVP here or just show up at the event.

I thought of one reentry-oriented idea recently that Travis County wouldn't need any legislative authority to enact. A friend recently had all sorts of trouble getting arrangements with their Travis County probation officer because this person and the P.O. had the same days off. So every month the same choice arose: Either miss work or miss a P.O. appointment. Eventually, both the job and the P.O. were unhappy, but the situation seemed entirely preventable.

I don't see why the Travis County probation department can't do its best to acquire work schedules for offenders' who're employed and schedule office visits when they're not on the job. How simple would it be to ensure that probationers with jobs can take care of their office visits on their days off? Ditto for parolees though I've no firsthand knowledge the same thing happens there.

For that matter, I continue to believe probation and parole departments should use the employment rate among supervised offenders as one of the primary outcome measures by which both administrators and line officers are judged. Prioritizing employment for probationers - or at least getting the probation department out of the offender's way - would go a long way toward preventing recidivism an improving public safety. When the the probation officer creates barriers to employment instead of encouraging it, IMO our priorities are backward.

RELATED: See this Power Point presentation (pdf) explaining the makeup and activities of the Austin/Travis County Reentry Roundtable.

SEE ALSO:

• Transportation, Employment and Reentry
• Making sure ex-offenders find employment
• RIO: First steps toward reintegrating offenders

YFZ Ranch dispute far from over

Grits' coverage has died down but that doesn't mean everything's over regarding the Great Eldorado Polygamist Roundup. Though I find myself with little to add beyond what's been said already, here's some recent coverage that may interest Grits readers:

• Fort Worth Star Telegram: Polygamist sect fights back by emerging from isolation
• London Times: What next for polygamists?
• Salt Lake Tribune: Was FBI probe in 1980s lost chance to curbe FLDS leaders?
  
• Salt Lake Tribune: Jeffs daughter wants to ditch her attorney
  
• San Angelo Standard Times: CPS, judge threatened American foundation
• AP: Cost of raid tops $14 million
• The Spoof: Polygamists to replace same sex couples in Ikea ads (satire)
  
• The Common Room: FLDS June 22
  

SCOTUS to Texas: Provide counsel earlier in process

Via SCOTUSBlog, the US Supreme Court today issued its ruling in Rothgery v. Gillespie County (see the opinion and the SCOTUSWiki on the case), in which the majority held that:

A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Pp. 5–20.

(a) Texas’s article 15.17 hearing marks the point of attachment, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made.

What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

That's how most other states do it; Texas had just been skimping by not appointing counsel earlier. According to the opinion, "The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority."

Pero no mas. Now Texas and those six other states must hire attorneys for indigent clients earlier in the process. As I pointed out earlier, it's not a very wise time for counties to be slashing indigent defense budgets. (UPDATE: The ruling was narrower than first portrayed. SCOTUS said what Gillespie County did was wrong, but expressly did not say what they should have done instead.)

Congrats to everybody over at the Texas Fair Defense Project who spearheaded the case. This was a big win on an important topic.

See prior related Grits posts:

• Rothgery v. John Wiley Price: Move to slash Dallas defender budget couldn't come at worse time
• When does the adversarial process commence?
• Number arrested with no charges filed closer to 2% than half
• Rothgery oral arguments reveal new insight about murky systems
• Do they really have to appoint you a lawyer when you ask for one?
• SCOTUS to decide in Texas case when right to counsel attaches

Chronicle oversells rise in burglaries from Uniform Crime Reports

When the latest Uniform Crime Statistics came out, I mentioned that because of the poor quality of the data and the lack of contextual information, one should be wary of promoting misinterpretations of the data by singling out one area that increased and claiming it represents a crime problem. That's the approach taken in an article in the Houston Chronicle today ("Burglary increase puzzles experts," June 22):

The burglary was among more than 29,000 reported in Houston in 2007 — an 8 percent increase from the year before, based on preliminary Uniform Crime Report numbers recently released. Burglaries also went up in other major Texas cities — by 14 percent in San Antonio, 8 percent in Austin and 4 percent in Dallas.

Though such crimes rarely make the news or draw the public outrage that accompanies homicides and carjackings, they have the potential to become just as dangerous. That was evident last week when a 74-year-old ranch owner, Floyd Nauls Sr., was seriously wounded by gunfire after surprising two intruders inside his northeast Houston home.

Burglars can also destroy a sense of security not only in the homes they target, but also in neighborhoods, said Dr. Bob Walsh, retired criminal justice professor and former associate dean at the University of Houston-Downtown.

Victims "just have a sense of vulnerability that comes over them," said Walsh, a former burglary detective. "That feeling is communicated with other people, and it becomes magnified."

Experts say they don't know why Houston's annual burglary numbers jumped up, even as the city's homicides, rapes and car thefts declined.

Population growth is not entirely to blame. Even when factoring in the surge of new residents, Houston's annual burglary rate still increased from 1,296 to 1,339 per 100,000 residents, amounting to an increase of slightly more than 3 percent.

I view these data as the equivalent of a ruler with an error rate of plus or minus 12 inches. Too many unknown variables make this data impossible to interpret as concretely as the Chronicle story attempts to do with it. E.g., did the number of burglaries go up, or for some reason were a greater percentage reported? Reporting rates for property crimes are so low a slight increase can make a big increase in the numbers.

Thankfully some of the experts quoted in the Chronicle played down the numbers and added some context to their interpretation:

The rise in burglaries does not mean a crime wave is coming, experts say.

"As a scholar of policing, I would not be at all concerned that this represents some kind of a serious jump in crime," said Dr. Larry Hoover, a professor at Sam Houston State University's College of Criminal Justice, who studies crime rates and trends. "You have to look at the other property crime in conjunction with it — larceny stayed even, and motor vehicle theft went down."

While crime uniformly went up across the country in the 1980s and dropped in almost all major cities from 1991 to 2004, the last three years produced uneven patterns with some areas showing unexplained increases and declines in certain types of crime — changes that Hoover describes as "baffling."

The Uniform Crime Reports occasionally will reveal variations in some crime rates of 5 percent to 8 percent for which no obvious reasons can be pinpointed, he said.

"Alarmists see this as a precursor to a new surge in crime," Hoover said. "Others see it as random variation — that we've driven crime to historical lows, and you're going to see spots of increase."

To Dr. Brian Lawton, another professor at Sam Houston State University's College of Criminal Justice, Houston's burglary statistics are not that remarkable.

Even so, the story was accompanied with a list of tips to keep their homes safe from burglars, which might have some pub ed use, I suppose, but flies in the face of the experts quoted in the article saying there's no cause for alarm. Indeed, to some extent the numbers showing increased crime may be due to extra Houston PD resources expended to address the topic:

HPD has tried to halt the rise in burglaries by educating the public, such as placing fliers on cars or homes where obvious security lapses are noticed, and assigning officers to concentrate in particularly troubled areas of northeast, west and southwest Houston instead of responding to calls on the radio.

The department's newly created Crime Reduction Unit, which has made nearly 3,000 felony arrests since its inception six months ago, has moved into places with the worst burglary trends, Mayor Bill White said.

HPD also has begun distributing 3,000 fingerprint kits to officers and cameras to supervisors so they can gather more evidence at burglaries instead of waiting for hours on a fingerprint technician to arrive, said HPD Executive Assistant Police Chief Charles McClelland.

"If we can take away the target, reduce the opportunity or apprehend the suspect," McClelland said, "we're going to reduce the crime."

For all these reasons it's a risky business to take Uniform Crime Reports and focus in on one narrow portion to say "Burglaries are increasing." With respect to the author of the article Peggy O'Hare, who's a good reporter, that's reaching to generate conflict when the data doesn't really support it.

Traveling Open Thread

I'm leaving town for a couple or three days and blogging will be light. Consider this an open thread to let me know what Texas criminal justice subjects deserve Grits readers' attention.

Overburdened parole system failing to meet minimum monitoriing requirements: Audit blames old computers

This blog frequently discusses how Texas' full jails, overcrowded prisons and high caseloads for probation officers make it difficult to closely oversee offenders, moderate rising costs, and focus on rehabilitation. In the parole system, too, they're singing a familiar song: Too many parolees under supervision by too few officers.

The Fort Worth Star Telegram brings word of a new state auditor's report detailing how an oveburdened parole systems struggles to monitor ex-prisoners under its charge ("Survey reveals flaws in parole system; officers blame computer system," June 21):

In a survey, auditors found that for 55 percent of offenders, parole officers scheduled drugs tests one to three months later than required by state regulations.

In 12 percent of the cases reviewed, parole officers did not make all of the required monthly contacts with parolees.

Part of the problem is aging equipment.

Parole officers complained about frequent slowdowns in the computer system used to track parolee records. The system was supposed to be completely replaced seven years ago, but the replacement is still incomplete, auditors said.

The Parole Division of the Department of Criminal Justice employs about 1,250 parole officers to keep track of about 78,000 parolees.

According to the report itself (available in pdf here) "The Department supervised 77,526 offenders on parole and mandatory supervision during fiscal year 2007. During this same time period, 31,904 allegations of parole violations were presented by the Department to the Board of Pardons and Paroles (Board) for administrative decisions, which resulted in 10,251 revocations of parole."

Providing adequate support, oversight and re-entry services to parolees is important because recidivism is a big source of crime - around 30% of Texas parolees re-enter prison within three years. Of course, that also means 70+% don't.

From the report, here's the list of the ten Texas counties with the most people on parole or mandatory supervision:

Harris 15,228
Dallas 10,445
Tarrant 6,025
Bexar 4,633
Travis 2,992
El Paso 1,776
Hidalgo 1,047
Collin 562
Denton 741
Fort Bend 682

All Other Counties and Offenders Supervised Out of State 33,395

Total 77,526

Isett: TYC could be 'sunsetted'

Not much detail in the article, but the Lubbock Avalanche Journal reports that Sunset Commission Chair Carl Isett says the Texas Youth Commission may be either "phased out or restructured," as well as the Texas Transportation Commission.

Sen. John Whitmire has been proposing to "abolish TYC," but like Isett hasn't given precise details what that might mean other than to shift responsibility for managing most delinquent youth to the counties, presumably funded from the state budget. By the end of the year, however, Isett's Sunset Commission will make suggestions that are much more concrete which will lead directly to legislation in 2009.

Steroid use negligible among high school jocks; what about testing police?

After a Texas law passed demanding steroid testing for high school athletes, I argued the program wasted money and ignored more seriously problematic classes of steroid users, particularly in law enforcement where the state has a more compelling interest in preventing illicit steroid use.

Now the results are nearly all in, and the state got back only two positive tests after randomly testing more than 10,000 student athletes. That rate of return is good news to the extent it confirms steroid use isn't a big problem among Texas high school athletes, but it was sure a massively expensive and needless waste of time and money to prove that point.

Dallas PD recently announced it would begin steroid testing for its officers, but most other Texas police departments do not. As I'd argued in the comments to a prior Grits post:

Certainly there are good arguments for police officers wanting to take steroids, and I'm actually quite sympathetic to the idea that they ought to be able to do so. My personal view is that steroids, like marijuana, pose modest risks that are knowingly taken by those using the substances, and probably should be legalized. But as long as steroids are illegal, making sure cops don't participate in an illicit drug culture is a LOT more important than policing [athletes].

When I wrote that I was talking about professional athletes, but that goes double for high-schoolers where the state testing regimen proved there was no significant problem. If testing for police officers revealed similarly low rates, I'd be happy to be proven wrong. But the stakes are a lot higher and from anecdotal accounts, the problem of steroid use among police is more widespread than these data reveal among high school jocks.

Houston's Ron Taylor case demonstrates worst possible outcome from forensic errors

The third exoneree convicted with flawed evidence from the Houston crime lab received word this week of his pardon by Texas Governor Rick Perry, the Houston Chronicle reported today ("Ron Taylor says pardon brings new meaning to life," June 20):

Ronald Gene Taylor on Thursday broke free of the bonds of the wrongful rape conviction that has defined his life for 15 years after receiving news of a pardon confirming his innocence.

"It's been hard to get restarted," Taylor said in a telephone interview from Atlanta. "Little things, like filling out a job application or renting an apartment are hard when you have to say you are a convicted felon. Now, I am officially a free man. I am so relieved." ...

Taylor, 48, has worked to reclaim his life in the eight months since a Harris County judge ordered him released from prison after DNA evidence cleared him of a 1993 Houston rape. He moved to Atlanta in October and reunited with the woman who patiently had waited for him. In December, they married. This spring he started his own lawn care business.

But the shadow of his conviction darkened each of those milestones.

Taylor was accused in the 1993 attack of a woman in her Third Ward home, which sat less than a mile from where Taylor lived. He maintained his innocence, but prosecutors built a case on the victim's identification of Taylor and the now-discredited testimony of a Houston Police Department crime lab analyst.

Jurors at Taylor's 1995 trial found him guilty, and a judge sentenced him to 60 years in prison.

As in many wrongful convictions, evidential errors by investigators multiplied one another's bad effects: A flawed eyewitness identification was "corroborated" by flawed crime lab testimony.

Worse, there's little reason to believe the same thing couldn't happen again. Even if HPD fixed problems at the crime lab (and nobody believes they're there yet), Houston police are still using the same eyewitness ID procedures they did in 1993. The checks and balances simply failed and an innocent man paid the price. He may not be the last one, either. Reported the Chronicle:

Taylor's case has served as a rallying point for efforts to review cases that may have relied on faulty evidence from the HPD crime lab. Taylor's first act as a free man was to set off from the Harris County Jail to City Hall, where he told council members that they must take action to ensure other innocents are not wrongly imprisoned.

The next day, Harris County's criminal district judges set in motion a plan to appoint attorneys to review about 200 cases with blood and body fluid evidence similar to that in Taylor's case.

"Ron's case really jump-started the review of all the serology cases," Innocence Project co-founder Barry Scheck said. "It is a reminder as to how much damage this crime lab did over the decades and how we will never get a full and complete understanding of how many miscarriages of justice resulted from their incompetence.

Finally, Taylor's case underscores the truism that when wrongful convictions occur, it not only harms the innocent but frees the guilty from facing consequences for their actions:

The new evidence cleared Taylor and pointed to another man, Roosevelt Carroll, who has a history of violent sexual crimes. Carroll is serving a 15-year sentence in a Texas prison for failing to register as a sex offender. He cannot be prosecuted for the 1993 attack because the statute of limitations for filing charges has expired.

You have to feel for the victim who suffered the double whammy of a) realizing her identification helped convict the wrong guy and b) that the real perpetrator can't be charged with the offense. That's truly a worst-case scenario outcome, isn't it?

RELATED: Here's a Dallas case where, similarly, the conviction of an innocent man wound up ensuring the actual perpetrator could never be prosecuted.

Was Rockwall DA's fall from grace a singular failing or part of a pattern?

The resignation sent from a jail cell by former 2001 Texas "Prosecutor of the Year," Rockwall County DA Ray Sumrow, ends another sad saga of corruption by an elected official and leads me to reflect on how many recent high-level law enforcement types we've seen get into trouble recently:

• Bexar County Sheriff: Resigned to avoid prosecution for bribery related to the commissary. (2008)
• Potter County Sheriff: Convicted of bribery related to jail commissary. (2008)
• Bastrop County Sheriff: Convicted of bribery to protect illegal gambling. (2008)
• Harris County DA: Resigned over drug addiction, sexually and racially demeaning emails revealed in a lawsuit, and alleged special privileges given his secretary/mistress using county funds. (2008)
• Laredo Police Chief: Convicted of bribery and aiding drug smugglers. (2007)
• Cameron County Sheriff: Convicted of bribery and aiding drug smugglers. (2006)
• Gray County DA: Convicted of drug and weapons crimes. (2005)

And those are just the highest profile examples that come immediately to mind; I may be missing some. Four other elected sheriffs in South Texas have gone to prison in recent years according to one news report.

There's no telling how far the commissary related corruption goes. Another Sheriff from Kleberg (Kingsville) awarded the company accused of bribing the Bexar Sheriff a contract during his final weeks in office then allegedly accepted a consulting contract with them when he was a private citizen.

And that's leaving aside a slew of corruption cases involving lower level officers. Among the most brazen: Four deputies in Tyler including the chief deputy over the low-risk portion of the jail were arrested this spring for allegedly using trustees to collect scrap metal and pocketing the profits. The special agent in charge of the FBI's El Paso bureau from 2001 to 2003 was indicted for corruption in 2006, but I can find no record of how that case came out.

This pattern brings to mind the opening lines to the old Buffalo Springfield tune, "There's something happening here. What it is ain't exactly clear." Perhaps the rate of high-level corruption and misconduct cropping up is routine and I've merely noticed it more because I'm tracking it on the blog. Perhaps it's because enforcement improved, so we're seeing more cases. Maybe the rash of incidents is purely anomalous? Or perhaps it portends some larger societal trend toward corruption that that's only barely beginning to become fully visible. Who can say? What do you think?

Conflict Alert: Author accepts new gig promoting innocence policy reforms

A reader alerted me to the publication of a Texas House Research Organization interim report (pdf) on the subject of a proposed Innocence Commission and other reforms aimed at preventing false convictions. The HRO article gives a good overview for the uninitiated as to the range of opinions and examples about what an "innocence commission" can become in its most useful incarnations or in its least effective ones. Those interested should give it a read.

Speaking of innocence commission proposals, this is as good a time as any to inform readers (in the interest of full disclosure, since I've written on these subjects for many years) that I recently accepted a part-time consulting gig working with the Innocence Project of Texas to help them develop public policy aspects of their program (as distinct from their legal cases).

As always, this blog is operated on my own time. When I worked for them, I never billed ACLU of Texas for time spent writing on the blog and the same will be true of IPOT, which is a consulting arrangement not a full-time job. For the record, views expressed on Grits are my own, not those of any organization which happens to pay me for political services, just like the politicians whose campaigns I worked on over the years don't necessarily subscribe to opinions on Grits.

Ironically, past experience indicates the new association may cause me to write less on innocence topics rather than more (we'll see how it works out) since the relationship exposes me to information and insights revealed in confidence and not intended for public exposure. But I'll try to walk that line honorably and at least ensure full disclosure when I do write on these subjects. I've no intention of concealing the relationship, and will leave readers free to judge for themselves whether it influences what I write.

Finally, with my personal financial situation improving, I should also say how much I appreciated readers who assisted this blog financially earlier this spring, helping me make ends meet at a critical juncture before this new gig materialized - it made a huge difference and I was humbled at the generous responses. Thank you, folks.

Preparing for the price tag of Texas prisons

As Congress focuses on costs of the drug war, I was interested to receive notice of this brief and informative Texas Public Policy Foundation podcast titled "Preparing for the price tag of Texas prisons," featuring an interview with TPPF criminal justice policy analyst Marc Levin. Give it a listen.

The only effective way to control costs in Texas prisons, said Levin, is to control the population numbers. The state already skimps as much on minimizing conditions, cutting calories in meals, etc., he said, as the federal courts will allow. Levin praised incentive funding to local probation departments passed by the Legislature in 2007 aimed at providing more funds to departments that help probationers succeed.

The success of the new reforms, he said will depend on judges and prosecutors using the new tools. Harris County, in particular, "has 16% of the state's population but they account for 50% of the state jail inmates who are incarcerated for less than a gram of drugs." There's a "perverse incentive" for local officials to "over-utilize prisons just because they'll be sending the bill to the state."

Congress interrogates economic cost of drug policy

I'm listening online right now to an interesting Congressional hearing from the US Joint Economic Committee (see the hearing page here), via Sentencing Law & Policy.

Congressman Jim Webb in his opening statement declared that marijuana is now California's most lucrative cash crop, surpassing even winemakers' profits, and that 4/5 of illegal marijuana fields in California are owned by Mexican drug cartels.

Webb said 86% of US high school students said it is "very easy" or "fairly easy" to buy marijuana, even though the number of people in custody on drug charges increased 13-fold in the last 25 years.

Here's the link to watch the archived hearing.

RELATED: From the Congressional website:

Charts:

• Percent of High School Seniors Who Can Obtain Drugs (PDF - 173.5 KBs)
• Total Prisoners in Custody on Drug Charges (PDF - 177.7 KBs)
• Price of Cocaine (PDF - 191.8 KBs)
• Drug Arrests as a Percent of Total Arrests (PDF - 164.4 KBs)

Witness Statements:

• Anne Swern, First Assistant District Attorney, Kings County, Brooklyn, NY (PDF - 155.4 KBs)
• Norma Fernandes, Community Coordinator, Kings County District Attorney (PDF - 17.8 KBs)
• Peter Reuter, Dept. of Criminology, University of Maryland (PDF - 144.6 KBs)
• John Walsh, Senior Associate, Washington Office on Latin America (PDF - 151.4 KBs)

American guns fueling Mexican cartel violence

Speaking of the Mexican justice system, our neighbors to the South would have a lot easier time getting crime and drug running under control if the United States didn't allow massive trafficking of guns southward, often in the same vehicles used to bring drugs north. That's the subject of an excellent investigative story by James Verini in the July issue of CondeNast Portfolio, who relays this tidbit in passing about the identity of Los Zetas' commander in Nuevo Laredo that I'd not read elsewhere:

Everyone knows who the Zetas are. They dress in designer jeans and boots and drive around in new Jeep Cherokees and pickups, the butts of their guns visible through the windows. Everyone knows Nuevo Laredo’s Zeta gatekeeper by reputation, but few know him by sight. When I ask Ana [a reporter's pseudonym] his name, she refuses to say it, beckoning me to hand her my notebook. She hides it from view and scribbles “Miguel Treviño.”

Treviño’s name has an incantatory power in Nuevo Laredo, and his sadism is notorious. He is said to be fond of employing the guiso—a word that means stew but has come to signify a form of execution in which victims are burned alive in oil drums. With Treviño’s help, the Zetas have taken on sideline operations that go beyond their Gulf cartel duties: human smuggling, extortion, and, of course, gunrunning. There are warrants out for Treviño in Mexico and Texas, but Ana has little faith that the police or army will arrest him. To her, they seem mostly inept, not to mention mendacious. Whenever she asks the police about a murder, she says, they call it a suicide. “No one tells the truth here,” she adds. Lately, the Zetas have even taken to hanging recruitment banners in public spaces. “Kids used to say that they wanted to be police. Now they want to be Zetas,” Ana says. “They think that’s the only way to get respect.”

Meanwhile, regard for the U.S. has never been lower. “The only thing the people here know about the U.S. is that it won’t give them visas,” Ana goes on. Actually, they do know something else—that the Zetas’ guns come from across the border."

It's an important mitzvah for reporters to expose cartel leaders in the press, even if it sometimes places them in as much danger as the cops who're trying to capture them. I'm increasingly of the belief that in the modern era, old "intelligence" strategies used by police holding sources close to the vest have become outdated, that what's needed is a new open-sourced intelligence model that exposes drug cartels to sunlight's inevitable disinfectant even when law enforcement fails to eradicate them.

Anyway, the tidbit about Los Zetas in Nuevo Laredo is just a smidgen from what I thought was a fantastic piece. It's a long one, but anyone interested in guns, Mexico or the drug war should read the whole thing.

Mexico approves shift to more open, adversarial court system

Truly historic news from south of the Rio Grande this morning, via AP:

President Felipe Calderon on Tuesday signed landmark judicial legislation that allows U.S.-style public trials and creates a presumption of innocence for the accused.

Under the long-awaited constitutional amendments, guilt or innocence no longer will be decided behind closed doors by a judge relying on written evidence.

Prosecutors and defense lawyers will argue their cases in court, and judges must explain their decisions to defendants.

"Now we can offer citizens a more transparent judicial system that respects human rights and protects your rights with more speed and efficiency," Calderon said.

The law is expected to take effect Thursday. But it is unclear how quickly public trials will begin. The law says the changes must be implemented by 2016.

Thousands of lawyers and judges must be trained on the logistics of holding a trial. Courthouses must be modified to make room for participants.

It probably will take even longer to change the treatment of the accused in Mexico, where suspects are routinely paraded before cameras -- sometimes holding weapons they are accused of using in crimes -- even before they have been charged.

The old system "encouraged corruption and led to many wrongful convictions," say legal observers, but even so it will remain in place for years to come. A change this dramatic can't be initiated by fiat when Mexico doesn't have lawyers or judges trained in the procedures. Indeed, one can envision a lot of chaos during the transition if things aren't managed exceptionally well.

At the LA Times, Deborah Bonnello gives a little more detail and identifies initial criticisms of the proposal:

A plan for warrantless searches was dropped after human rights groups protested, according to the New York Times.

But Human Rights Watch still objects to certain elements of the judicial reform, which includes the ability to hold people suspected of participating in organized crime for up to 80 days without trial.

"This proposed 80-day limit for pre-charge detention would be, by far, the longest of its kind in any Western democracy," said José Miguel Vivanco, executive director of the Americas division of the rights group, in a letter to Calderon.

"Detention without charge for such a long period of time violates the fundamental right to liberty and security of the person and the associated protections against arbitrary detention enshrined in international law. Even if exceptional, this 80-day limit is excessive."

Effecting this transformation in the midst of ongoing cartel wars will be an immense challenge, and The Mex Files fears the involvement of the Army will delay needed changes. I'll be interested in learning more details about what they did and how implementation plays out.

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

Demagoguing Amarillo Sheriff joins ranks of "clowns" "scumbags" and "maggots" he railed against

Potter County Sheriff Mike Shumate has been convicted of bribery and yesterday was sentenced to six months jail time and eight years on probation. Reported the Amarillo Globe News:

He called them clowns, scumbags, maggots and idiots. He said he'd load criminals on a bus to jail where they would meet "Bubba," a fictional cellmate.

Former Potter County Sheriff Mike Shumate gained attention when he headed up Amarillo Crime Stoppers and castigated criminals on weekly radio spots.

He's now part of the gang.

Shumate was sentenced Tuesday to eight years of probation and 180 days in jail for accepting bribes while he was the top law enforcement officer in the county. He chose to accept a plea deal rather than have a jury decide his fate.

Shumate faced up to life in prison after he was found guilty Thursday of engaging in organized criminal activity. Shumate accepted bribes from Mid-America Services Inc. and its president, Robert Wayne Austin Jr., in exchange for ensuring the company received the county jail's food service and commissary contracts. Mid-America and Austin are both charged with bribery and trials are expected to begin in Collin County in September.

Globe News columnist Greg Sagan said he was:

baffled by some of what has come out about the Shumate affair. Two of Shumate's statements at trial, which were quoted in this paper, were ripe for all manner of pungent comment.

One was his reply to a question about why he had not accepted money that was offered to him from a contractor. Shumate's reply, "I didn't need the money," was an egregious blunder. Had I been in the jury box and heard such a comment, I would wonder long and hard what the outcome might have been if, indeed, he had needed the money. Was that all that kept him from accepting it, or was there, you know, like, some principle involved?

Such contemplation would have led me to believe that someone else had given him money first.

The second comment was Shumate's response when asked what he would have done had the cash been placed in his hand. He testified that the money would have fallen to the ground because of a wound he suffered to his right arm in Vietnam. No attorney should have ever allowed his client to say such a thing in court. My immediate reaction when I read this was, "Gee, what if they put it in his left hand?"

Right after that I thought to myself, "So why didn't he arrest the guy on the spot for attempting to bribe a public official?"

Meanwhile, over at the Fort Worth Star Telegram columnist Bud Kennedy realized that:

the same company, Mid-America Services, has $4.5 million in contracts with Tarrant and Wise counties.

Jurors in Amarillo convicted Potter County Sheriff Mike Shumate of bribery for taking money, computers and free meals, and then hiring or recommending Mid-America to run both the jail snacks-and-sundries cart and the jail kitchen. ...

Defense witnesses countered that the executive, the late Jack Madera of Kaufman County, was simply a gambler who needed cash to pay his bookie.

Nothing on either side of this story makes me feel good about our county contracts.

Officials in both Tarrant and Wise counties said they will review the contracts this summer and have not decided whether Mid-America should be eligible to bid.

The company and its current president, Bob Austin of Ellis County, are scheduled for trial Sept. 5 in the same case. That trial has been moved to McKinney.

The Wise County Sheriff told Kennedy he "lets vendors buy an occasional lunch," which is more of an admission than I'd be making after what happened to Sheriff Shumate! I'd bet even money we haven't seen the last allegations yet of bribery and jail commissary corruption.

The Dead Messenger: "You do not falsely lock up people and call yourself human."

I'm not sure why there's been no MSM coverage, but whistleblower Sheri Simonelli at the Bexar County adult probation department was fired last Friday after going public with evidence that a private urinalysis lab had changed its protocols in a way that encouraged "false positives" that were then used for detention decisions.

I've come to know Sheri a little through the blog, and from all appearances Bexar CSCD is losing a competent and dedicated employee: Good luck, Sheri. I'm sorry it came to this.

This appears to be the denouement of a longstanding feud between probation director Bill Fitzgerald and employees who wanted to unionize the department. (Sheri is/was the union local head and the lead defendant in a federal lawsuit (pdf) challenging Fitzgerald.) Fitzgerald reacted to unionization proposals by trying to force every employee to submit to "retention interviews," and even trying to out anonymous blog commenters, both ham-handed strategies from which he later backed down.

Payback, though, can be a bitch. Said Simonneli in an email to Grits: "I'm still proud of what I did. You do not falsely lock up people and call yourself human."

Simonelli's firing doesn't end the saga: What will Bexar judges (who govern the probation department as a board) do about shoddy forensic science used by the probation department. They've been silent so far, but the whistleblower's departure drops the matter squarely into their lap. Will Fitzgerald and Co. continue to use the vendor following flawed UA procedures? Probably, until somebody sues over it. I also wouldn't be surprised to see a wrongful termination lawsuit develop. Meanwhile, this latest broadside on the newly formed union can only worsen already sour employee relations at the Bexar adult probation department.

In Sun Tzu's The Art of War, Master Sun wrote that to be victorious, leaders must achieve "The Way," which he defined as "inducing the people to have the same aims as the leadership." By that standard, the Bexar County probation chief has lost his "Way." As near as I can tell from comments on Grits and private emails I've received, Bexar probation officers are as worried, frustrated and on edge as were TYC employees last year at the height of then-Executive Director Dimitria Pope's unhappy and ill-fated reign.

There comes a point when the management utterly loses the respect and fealty of those working under them, when they lose their "Way," and if Fitzgerald hadn't reached that point before last Friday, he's certainly done so now.

Spanking for Truancy? On the limits of corporal punishment in juvie corrections

I don't get too worked up at parental spanking (or even by school officials and such), but my own parenting experience tells me there are limits to its effectiveness. I grew up in a household that used corporal punishment quite liberally and consider it a legitimate parenting technique when properly employed. But these two recent stories taken together makes me think the courts should not coerce parents into using it:

• Brownsville Justice of the Peace gives option of fines or corporal punishment by parents for truants

• Boy dies after his parents tied him to a tree "because he was being disobedient and other disciplinary actions had failed"

Parents who use corporal punishment walk a thin line between discipline and abuse when the tactic is used in anger, with excessive violence or with the aim of terrorizing the child. Everyone who employs it must find their own comfort level with how they implement spanking, and every responsible parent knows there's a limit to how well the tactic works.

There comes a point when you can't improve your kids' behavior just by amping up physical punishments; the Texas Youth Commission is full of kids who're prime examples. There's simply a fundamental illogic to the demand that "beatings will continue until morale improves."

Spanking seemed like a near-ubiquitous part of growing up when I was a kid, with coaches and assistant principals in school hanging the dreaded paddle like a trophy fish on their office wall to intimidate their charges. But even then I noticed big differences between how it was used in my house, in school, and what sometimes appeared to be more abusive uses by some parents I knew.

My attorney father's version of corporal punishment, in retrospect, was very court-like: The punishment wasn't issued at the scene of the crime. I was never yanked up in a grocery store or whatever and whipped on the spot. Instead, in the privacy of the home after everyone's emotions had died down, I'd be informed of the punishment and required to voluntarily accept it. My Dad would make us bend over and place our hands on a desk or counter; moving your hands to intercept the blow earned you another clean one in its stead. If you were told you'd get three, you got three clean ones; told you'd get five, you'd get ten if five times you moved your hands back to shield yourself.

Though I seldom had the discipline to stoically take the licks, frequently earning myself more en toto than the assigned punishment, I never considered spanking a serious deterrent during my own misspent youth, and after a certain age I doubt most kids do. That went for the kids I knew whose parents more abruptly and angrily "spanked" them in public settings. We'd all laugh about it afterward, and the boys who endured it took it as a sign of their manhood that they didn't care about being whipped. Not infrequently, a publicly punished kid would behave even more audaciously to impress their friends in the wake of their disgrace, after which of course they'd disappear for a while since grounding was the inevitable aftermath when whipping didn't work.

For that reason I question the Brownsville JP's plan to coerce parents into using corporal punishment. (A district judge halted the practice after nearly 100 kids had been spanked in the JP's courtroom since January.) Some parents lack the necessary discretion to responsibly use force against their kids and might see the JP's stance as judicial affirmation of what turn out to be beatings instead of spankings. Using courts to promote spanking sends a false, even demagogic official message to parents that the answer to youth misbehavior is ever harsher physical punishments; often that's just wrong.

Even worse, depending on the circumstance, the crucible of corporal punishment can cause kids to act out worse afterward, exacerbating the problem instead of helping. Spanking may have a role, but it's by no means a cure-all. It certainly won't stop truancy (or at least, I can tell you to a certainty, it never stopped me from skipping school - a day off was easily worth a few licks if you were caught).

Used properly spanking has a place, but it should be a judgment call for parents, not the courts. The answer to juvenile delinquency cannot only be to ratchet up physical punishments ad infinitum in order to "get their attention." The end of that storyline is a dead 13-year old tied to a tree.

Ombudsman is a useful tool for inmate families who know what an 'ombudsman' is

At a brand new blog called TDCJ and Your Loved One, a recent post focused on how to get help for family members on the inside for day to day matters and gives contact information for the Texas Department of Criminal Justice Ombudsman.

Seeing this reminded me of an incident yesterday in the neighbhorhood that's worth relating: A young mother approached me to ask if it were possible for her Mom, who's locked up in Gatesville, to get out to attend the funeral of her father, the girl's grandfather.

"Maybe," I said. "Do you know what an 'Ombudsman' is?"

Sheepishly, she allowed that she'd never heard the word in her life. I explained the concept and we came inside to look up their information online. Later that evening she came back to excitedly tell me that it had worked, that the Ombudsman was able to secure a furlough for her Mom and she'd be able to attend the funeral.

What's more, my young friend told me while literally giggling with joy, the Ombudsman was helping get furloughs for her two brothers who were also in TDCJ to attend the funeral. Her delight at this news was infectious; her father is deceased and what remains of her nuclear family have not all been in the same room for years. I was happy for her, even if the reunion must take place under such a grim circumstance.

The incident made me think that the term "Ombudsman" may be a tad arcane for use in TDCJ's context. Maybe the name ought to be changed to something average people understand, like the "Help Desk."

Contact Info:

Ombudsman Coordinator
General Issues concerning the agency’s operation and policy and procedures.
P.O. Box 99, Huntsville, TX 77342-0099
(936) 437-8035 (936) 437-8067 fax
ombudsman@tdcj.state.tx.us

TDCJ-Correctional Institutions Division
Ombudsman Office
Issues from the public relating to secure facilities (prison units, state jails, and substance abuse felony punishment facilities), and any specific concerns regarding offenders confined in these types of facilities.
P.O. Box 99, Huntsville, TX 77342-0099
(936) 437-6791 (936) 437-6668 fax
ci.div@tdcj.state.tx.us
*Bilingual Staff Available - Se habla Espanol

Charles Hood's execution stayed: 11th hour recusal in case where judge accused of tryst with death penalty prosecutor

A former Texas Court of Criminal Appeals Judge's old CCA colleagues yesterday found procedural cause not to delve into her extra-judicial antics (Judge Verla Sue Holland was accused of carrying on a tryst with the prosecutor in a death penalty case when she was a trial judge), though the current judge then recused himself about an hour before Charles Hood's scheduled execution , delaying it indefinitely at the last minute. (CORRECTED: Reacting to initial reports, the original post misstated the details of the recusal.)

Whether or not Hood his guilty (and from all accounts of the evidence and the now-possibly tainted jury verdict, he likely is), that kind of gross judicial and prosecutorial misconduct cannot be tolerated in any legal venue, much less in death penalty proceedings. For my money if the allegations of the secret relationship turn out to be true, both Judge Holland and her prosecutorial paramour, former Collin County District Attorney Tom O'Connell, should be disbarred for concealing the affair in such a grave proceeding.

As for Holland's former colleagues on the Texas CCA, this was not your finest hour. Just in case you thought the rest of the country doesn't notice when you give a pass to your friend in such a high-profile manner, here's what CBS News is saying today about this case:

The Texas Court of Criminals Appeals, in three separate rulings Monday (which it requested not be made public), declared on procedural grounds that “rumors” of an intra-court, intra-trial romance aren’t legally sufficient to warrant a 30-day reprieve from Hood’s execution in order to allow his lawyers to investigate the allegations. The court ruled that because Hood’s investigator could not prove back in 1997 that there was an affair Hood now is barred from raising the issue today, on the eve of his execution. It also rejected Hood’s request for a delay because the wrong lawyer signed the appeal papers.

This is the same court, remember, that has repeatedly gone head-to-head with the United States Supreme Court in capital cases over the past few years - and lost. This is the same court that rubber-stamped a capital conviction in a case where another doomed defendant’s lawyer slept through significant portions of his trial. It is an incurious court which has demonstrated repeatedly it is more interested in serving as a processing center for executions rather than as an independent safeguard against government excess.

Even if you're a death penalty supporter you can't think it's a good thing for Texas' highest criminal court to rubber stamp executions with such obvious problems in the case, especially when there's a conflict of interest that might implicate them personally. You just don't use a legal technicality to avoid examining possible wrongdoing by your friend, not when somebody's life is literally hanging in the balance.

All of the recent SCOTUS-created restrictions on the death penalty - for juveniles, for the mentally retarded, in cases where black jurors were eliminated because of race - were established because of routine abuses, both real and perceived, allowed in Texas courts by the CCA. In each instance, SCOTUS found Texas' judicial practices so egregious it eliminated the death penalty or ordered new trials for large classes of defendants. I've often thought that if SCOTUS ever does wind up abolishing the death penalty entirely down the line, it might well be because Texas does the most executions and our courts aren't giving these cases enough scrutiny.

UPDATE: The CCA ruled later in the evening that the judge did not have the authority to stay the execution, but it was delayed anyway when TDCJ couldn't perform the deed by midnight. Governor Perry issued a 30 day reprieve in the case. Sounds like there was a lot of action last night - as one commenter pointed out, apparently for some causes, the Court of Criminal Appeals does work after five.

NUTHER UPDATE: At State of Mine, Texas Monthly editor Evan Smith posts a video interview TM did with Hood last week. The magazine's intrepid Mike Hall will be covering the story in an upcoming issue. AND MORE: Michael Hall gives a front-lines account of last night's yo-yo like legal proceedings surrounding Hood's ultimately delayed execution.

Massive rate of federal immigration prosecutions in Texas' Southern and Western districts not sustainable given prison guard shortages

For a great primer on recent federal sentencing dynamics in Texas' Southern and Western districts driving national immigration detention policy, see this collection of recent data compiled by the wonderful (at least for data geeks) Transactional Records Access Clearinghouse out of Syracuse U. They reported:

Federal immigration prosecutions in March 2008 continued their recent and highly unusual surge, apparently reaching an all-time high, according to timely data from the Justice Department. The total of 9,350 such prosecutions was up by almost 50% from the previous month and 73% from the previous year.

See Figures 2 and 3 for graphs displaying the massive shift in prosecutorial resources now being devoted to civil and criminal immigration offenses. In the Western district that's largely thanks to "Operation Streamline," a so-called zero-tolerance program that began in 2006. In the Southern district prosecutors began more aggressively pursuing immigration charges in 2004.

These data explain why two years ago on Grits I was predicting a "coming immigration detention boom." Texas state prison growth has leveled off in large part thanks to bipartisan legislative leadership that created and funded new diversion programs and stronger probation regimens. County jails are still experiencing growth, but with a few exceptions they're not major clients of private prison systems.

Instead, the major growth in private prison beds in Texas will nearly all come from immigration detention in the near future, or as some would have it, "holding pens for wetbacks" (!).

Never mind that all sorts of prisons, detention centers, jails, whatever you want to call them are already facing a shortage of guards that make them unsafe for employees and insecure environments for detainees.

The supply of border crossers to catch and prosecute is nearly limitless, and I've little doubt the feds can sustain these high rates on the front-end, funneling ever-more people into the system. But I don't for a second think Texas (or other border states) have remotely enough detention beds to house all these folks at the rates documented by TRAC.

One suspects that, no matter who's elected President, the next set of US Attorneys appointed won't be encouraged to pursue such cases with the same zeal as Bush appointees in the last couple of years.

Via Bender's Immigration Bulletin

What, me to blame? Austin city council gets "wake up call" on police budget crisis they knowingly caused

The debate in the Austin Statesman today over why the Austin Police Department's costs rose more than other PDs in the last decade strikes me as utterly disingenuous. Despite officials' incredulous comments, everyone quoted knows full well why Austin police cost so much - an extravagant union contract spearheaded by then Mayor Kirk Watson that made Austin police the highest paid officers in the country. Ridiculously, council members behaved as though they'd never heard this before:

"These numbers are eye-opening," City Council Member Brewster McCracken said Monday. "It is a wake-up call about a concerning budget trend."

Council Member Lee Leffingwell said he wants more information before forming an opinion about the new data, including whether the other cities had comparable growth rates.

"It would be premature to jump to any conclusions without that information," he said.

Both McCracken and Leffingwell knew years ago their support for massive police raises would cause this result. They were told, I can personally assure you. They said they didn't care. But now this news is a "wake up call"? It takes a lot of chutzpah to believe the public is stupid enough to accept that flip flop! Leffingwell in particular during his campaigns apologetically told opponents of the last police contract that he's afraid to confront the police union and feels like he must give them whatever they want to keep getting re-elected. No wonder he's asking for more "information"! The information all the rest of us have available indicates he and his colleagues are to blame.

Though I first began focusing on criminal justice policy because of a local Austin case, I pay little attention to APD policy anymore because it's just too frustrating: Our local city council has for years been in the pocket of local police union, and the liberals who tend to get elected are so scared someone will label them "soft on crime" they fall over one another to give the cops more money while opposing added accountability. Bottom line: Austin needed more officers over this period, but the council caved in to union demands to dramatically boost pay for those already on the force and fill gaps with overtime. That made it financially impossible to hire uniformed cops in the numbers the city should have and squeezed out other budget priorities. (In the same contract they gutted Austin's already weak civilian oversight of police.)

Now, though, years of pandering have come home to roost in the city budget. The Statesman reports that APD costs went up 84% over the last nine years, "while expenses in six other departments, including Dallas and San Antonio, increased 34 percent at most."

It's absurd for councilmembers to claim they didn't know these policies would make Austin lose control of its police budget - me and a couple hundred other Austinites showed up to tell them exactly what the budget impact would be, both before they approved the current union contract and the one in 2001. Indeed, I testified at city council back in 1998 to complain about high costs in Austin's very first "meet and confer" contract, particularly because, like other recent APD raises, it was bestowed with no added accountability in return. For anyone at the city to claim these numbers were unexpected beggars credibility.

Chief Art Acevedo asks the question, "Can you put a pricetag on public safety?" Well of course you can, sir! It's called "your budget." The questions before us are a) why that pricetag is so much higher for Austinites than everyone else, and b) what if any additional public safety benefit do we gain from it?

I think the answers are a) political pandering, and b) not much.

Asset forfeiture funds may get more accountability, money diverted to drug courts

Why shouldn't money forfeited by drug dealers be used to finance drug courts and treatment programs? If a local DA misuses asset forfeiture funds, who can prosecute them? Have these monies simply become local political slush funds?

Those were some of the questions posed at a June 5 hearing of the Texas Senate Criminal Justice Committee (I was out of town that day and just got around to listening to the asset forfeiture discussion - the video archive is here.)

Committee Chairman John Whitmire of Houston first considered the need for an interim charge on asset forfeiture, he said, after receiving immense backlash from district attorneys in 2007 when he proposed taking 10% of forfeiture funds and using them to create drug courts.

Whitmire said his staff calculated that local governments currently had around $65 million sitting in forfeiture-generated accounts; Harris County alone has more than a $14 million balance. However some DAs and police departments are using the funds for parties, trips, liquor, and even campaign contributions, he said We will "ruin a very good program," said Whitmire, if more accountability can't be added to the system.

Eric Nichols from the Attorney General's office laid out the utterly minimalist oversight mechanisms the law regarding forfeiture, which have barely changed since they were first enacted in 1989:

Seized money is placed in a special fund by the county or municipality whose officers seized it or who participated in the seizure, divvied up by percentage either by standing contract or in case by case agreements. Each agency receiving seized money must submit a budget for approval by its governing body (though later testimony revealed this doesn't always happen). Local governments must do audits, but only report a minimalist dataset from the audit on a brief questionnaire to the AG, which does not follow up with any examination "behind the numbers." Agencies that don't do audits are reported by statute reports to the Comptroller (more than a dozen per year, typically), which has the authority to do its own audits but has not done so in recent memory. No state agency audits or provides direct oversight regarding use of local forfeiture funds, said Nichols.

Sen. Rodney Ellis wanted to know how Texas' practices compared with other states, and asked the AG to prepare recommendations regarding whether it needed additional authority to investigate abuses regarding forfeiture accounts. Whitmire was interested in identifying which statutes a DA might be prosecuted under (and by whom) if they spent forfeiture money for unjustified purposes.

Department of Public Safety Commander Patrick O'Burke testified how DPS changed its own policies related to highway interdiction as a result of the overhaul of the agency's rules several years ago. In 2003 and 2004, he said, only seven people were convicted of money laundering statewide. An analysis of DPS practices at the time, said O'Burke, revealed that highway interdiction strategies yielded few arrests, little intelligence gathering or information sharing, and generally provided few positive law enforcement outcomes.

In response DPS began to focus more on outcome measures related to making investigation-generated arrests, identifying and prosecuting co-conspirators, and de-emphasizing asset forfeiture as an outcome by which officers' productivity was judged. (In fairness, perhaps it's easier for DPS to ignore the profit motive inherent in forfeiture laws because the money they seize goes into the state's general fund instead of a slush fund controlled by the agency.)

There was a sense at the hearing that the usual opponents of asset forfeiture reform found themselves back on their heels. Rob Kepple, speaking for the District and County Attorneys Association, surprised me by saying his members understood there were problems and that more oversight and accountability were needed. I would have expected TDCAA to oppose any changes to the current statute six ways from Sunday.

I like Whitmire's idea of spending asset forfeiture money on drug courts and treatment options. It makes a lot of sense considering a) $65 million is sitting around in local slush funds with no significant oversight, and b) there's a critical need for startup funds to expand drug courts around the state. Indeed, I think 10% for treatment is too low: Half or more sounds like a more reasonable number, at least as a starting point for discussion.

Read memo spawning proposed CCA changes to privilege rule

In the interest of providing a complete record regarding the debate over deleting criminal defense lawyers' "special rule of attorney client privilege," I wanted to give readers access to the memo by UT law professor Stephen Goode which originally suggested the change to a committee of the Texas Court of Criminal Appeals. See Professor Goode's memo, which appears fairly minimalist and less persuasive than Judge Cochran's recent offering.

RELATED: See also the text of the proposed rule change, CCA Judge Cochran's guest post on Grits, TCDLA Treasurer Keith Hampton's guest post defending the rule, blogger reactions from Tyler Appeals and Robert Guest, and a letter from federal public defender Richard Anderson regarding the proposed deletion.

Accrediting handwriting "experts" may not prevent wrongful convictions

Some improvements mandated by the Legislature at Texas crime labs apparently are taking a while to filter down into daily practices, to judge by this notice (doc) from the Department of Public Safety, found at the Texas prosecutors' website. DPS says many prosecutors still aren't aware that only handwriting experts from accredited labs can have their forensic analysis presented in court:

Texas law enforcement agencies and prosecuting attorneys need to be aware that anyone presenting court testimony in a criminal trial regarding handwriting examination must work in a laboratory accredited by the Department of Public Safety, under the auspices of ASCLD, Inc.

The Department further requires that the laboratory be accredited by a nationally recognized accrediting body. DPS maintains a list of the accredited laboratories on its web site at www.txdps.state.tx.us. Search under “accreditation” to locate this list. The accreditation requirement resulted from bills adopted by the Texas Legislature in 2003 and 2005 (article 38.35 of the Code of Criminal Procedure and section 411.0205 of the Government Code). Since adoption of these laws, some confusion has existed over which forensic analyses require accreditation.

Forensic analysis of questioned documents (for example, printed documents and handwritten documents) must be performed in an accredited laboratory. Examinations not performed in an accredited laboratory do not meet evidence admissibility requirements of Texas law. (emphasis in original)

Only two crime labs in Texas are accredited to evaluate "questioned documents" - the Houston PD crime lab and the DPS crime lab in Austin. Indeed, since the Houston crime lab has a limited client base (to go along with a well-earned reputation for sloppy work), the Austin DPS lab, for most Texas agencies, is their only real-world option. But is mere accreditation enough when the basis of the craft itself has been called into question? The NYC Innocence Project points out that:

Scientific errors, fraud or limitations were a factor in 63% of the first 86 DNA exoneration cases, according to an August 2005 analysis of the cases published in Science magazine. These forensic science mishaps include everything from lab analysts who committed fraud to expert witnesses who relied on analyses of forensic disciplines which have never been adequately validated to identify a perpetrator such as: hair, bullets, handwriting, footprints, or bite marks. Using DNA – which provides a precise identification that other methods cannot – wrongful convictions were exposed years or even decades later.

Handwriting analysis unfortunately is one of the softer comparative forensic procedures that's widely hailed by law enforcement advocates but enjoys little support based on independent testing of field results. According to a recent academic analysis published earlier this year by Paul Gianelli of Case Western Law School:

forensic labs show unacceptably high error rates in certain fields. Several types of examinations caused concern: fiber, paint, glass, and body fluid comparisons resulted in incorrect results in more than ten percent of the cases. A review of five handwriting comparison proficiency tests in 1987 showed that, at best, “[d]ocument examiners were correct 57% of the time and incorrect 43% of the time.”

Even the requirement for using accredited labs seems insufficient when the entire field of handwriting anlaysis has been labeled "junk science" that produces staggeringly high error rates. Gianelli found proficiency testing for examiners in these comarative forensic fields to be highly suspect:

In addition, the rigor of some voluntary proficiency tests is suspect. For example, a fingerprint examiner from New Scotland Yard testified in one case that the FBI proficiency tests were deficient: “It’s not testing their ability. It doesn’t test their expertise. I mean I’ve set these tests to trainees and advanced technicians. And if I gave my experts these tests, they’d fall about laughing.” The district court agreed, noting that “the FBI examiners got very high proficiency grades, but the tests they took did not. . . . [O]n the present record I conclude that the proficiency tests are less demanding than they should be.” The FBI’s own report acknowledged this shortcoming. Similarly, in a trial involving handwriting comparisons, the court wrote:

There were aspects of Mr. Cawley’s testimony that undermined his credibility. Mr. Cawley testified that he achieved a 100% passage rate on the proficiency tests that he took and that all of his peers always passed their proficiency tests. Mr. Cawley said that his peers always agreed with each others’ results and always got it right. Peer review in such a “Lake Woebegone” environment is not meaningful.

If proficiency programs are not rigorous, they provide only an illusion of reliability. Indeed, by bestowing an undeserved imprimatur, they are affirmatively misleading.

In this "Lake Woebegone environment" where every forensic expert supposedly is above average, "experts" never disagree, and proficiency testing of experts fails to screen out analysts with high error rates, handwriting analysis takes on the appearance of pseudoscience - an inherently subjective instead of analytical forensic approach.

This morning I contacted Wil Young who's in charge of Quality Assurance for DPS crime labs. He told me that handwriting experts from DPS accredited labs must take a proficiency test once per year, but acknowledged that DPS and the FBI use the same accrediting group, so any deficiencies identified by the federal judge above may apply equally to DPS and HPD handwriting experts.

With a few exceptions like the federal case mentioned above, most courts have so far upheld the use of handwriting analysis when performed by accredited forensic specialists. Indeed, the accreditation requirement only applies to criminal proceedings, said Young; civil cases and federal prosecutions don't require the use of accredited handwriting examiners. But the mood of the judiciary nationally is shifting as evidence begins to mount that some forensic science is entirely subjective with no basis in peer reviewed methodologies. As the American Bar Association Journal recognized in 2005:

many previously accepted forensic techniques--including handwriting analysis, hair comparisons, fingerprint examinations, tool mark identification, bite mark evidence and comparative bullet-lead analysis--have come under sharper scrutiny from courts. ...

“All of these fields are vulnerable,” Giannelli says, “because they’ve never done the kind of empirical research that would be demanded today under Daubert.”

The justice system remains fraught with faulty forensic science containing little or no basis in experimentation or the scientific method, and by all accounts handwriting analysis falls into that category. Error rates from 10-40% are too high to tolerate in an environment where convictions must be sustained beyond a reasonable doubt.

MORE: Here's a reference to a 2002 study purporting to support use of handwriting analysis, finding a 2-5% error rate when researchers had writing samples four pages long to compare. That still seems like a high error rate in practice. Identifying a forged check is a different matter, though: ''Even in laboratory settings, there is no evidence they can do it."

Writ Writer

See this review of the public television special aired last night featuring the life and work of Fred Cruz, a legendary TDCJ "writ writer" convicted of armed robbery in 1960 who insisted upon his own innocence until his death in prison. The documentary examines Cruz's legal work on behalf of himself and (more successfully) other prisoners through the lens of interviews with those who knew him, court records and Cruz's own journals. I missed the initial airing and hope they run it again soon.

View from the Piney Woods on proposed deletion of privilege rule

Jeff Rambin over at the Tyler Appeals blog summarizes the controversy over the Court of Criminal Appeals proposed deletion of what Judge Cathy Cochran called a "vestigal tail" with "no wag" - the attorney client privilege Rule 503(b)(2), and concludes the CCA shouldn't rush to change it. While most of debate so far has occurred over what the rule meant in the past, Rambin wisely observes that an "equilibrium" has settled around the "vacuum" of cases regarding the rule, and suggests that discussion of any change should center on the future "post-vacuum" equilibrium. He declares:

I'm for streamlined writing and efficient machines, but once words are put into operation as law or rule, fine tuning those operations on the fly is no longer a matter of clean blueprint draftsmanship. Instead, it's more akin to working under the hood of a NASCAR vehicle as it circles the track. With that in mind: 1. If it ain't broke, don't fix it. 2. What's the rush? After all, another side of the "no recent cases" argument is that there are no troubled waters to be stilled. Which leads to ... 3. Unintended consequences/Newton's Third Law/Strategic Uncertainty. If you set about to destroy something that you say really isn't there but others say is, you are destroying the equilibrium surrounding the uncertainty and creating the need for a new equilibrium to account for a new and now demonstrably certain vacuum. Judge Cochran's rebuttal acknowledges that a new equilibrium will need to be created around the vacuum. But at the moment, nobody can say what that equilibrium will be. So, 4. let's not jump out of the frying pan into the fire. Unless and until there is agreement that the post-vacuum equilibrium will be better than what we've got now, maybe the best thing to do would be to postpone the deletion of the "rule of special privilege." Doing anything else has the feel of taking away the defense bar's chips before everyone sits down at the table.

See also the text of the proposed rule change, Judge Cochran's guest post, TCDLA Treasurer Keith Hampton defending the rule, and a letter from federal public defender Richard Anderson regarding the proposed deletion.

Hampton defends privilege rule: "The vestigal tail you save may be your own"

Long-time Texas Criminal Defense Lawyer Association stalwart Keith Hampton offered up this response to Court of Criminal Appeals Judge Cathy Cochran's guest post yesterday in which she defended the court's proposed deletion of part of the attorney client privilege rule. See also the text of the proposed rule change, Judge Cochran's post, and a letter from federal public defender Richard Anderson regarding the proposed deletion.

From Keith Hampton, via email -

As one who very much respects the views and great work of Judge Cochran, I agree that the discussion for rule changes should be deliberative and thoughtful, an approach I have no doubt the advisory group has taken, and I am encouraged to see Judge Cochran lead the way. Past TCDLA president Richard Anderson’s letter was offered to the group in that spirit, as was current President Craig Jett’s participation. I also do very much agree the defense bar should write a work product privilege and make it explicit, and we are preparing to do just that. But the elimination of the special rule of privilege has no support among the lawyers who would be directly impacted by its abolition; in fact, defense lawyers are widely opposed, in part because we see no concrete proof in support of any of the more abstract objections lodged against it.

To the law professor who was apparently the chief advocate for the proposal and who somehow feared “mischief” by its retention, I would suggest that “mischief” can be generated as easily by the removal of language as by its insertion. What some prosecutors would do with the change in the law can be left to their (and our) imaginations. As for the perceived frailty of the rule, reenacted in every Code of Criminal Procedure since 1856, its treatment seems unfair: first, it is rendered toothless through judicial interpretation, then its lack of bite is duly noted by scholarly law commentaries, and now its abolition is proposed on grounds that it lacks teeth. If there has been any victim of mischief, it is the rule itself.

While civil practitioners and some scholars may view the rule as “confusing,” it is sparkling clear to the criminal defense lawyer who will take the law at its word: she will be protected from compulsion to divulge “any other fact” arising from her relationship with her client. This language plainly supplements the other provisions regarding the attorney-client privilege, whatever literary criticism might be lobbed against it. For the defense lawyer at the immediate end of a prosecutor’s interrogation, the rule’s clarity is at least comforting, and if adequately enforced, a true shield for the attorney-client relationship.

A defense attorney might argue in a future case, perhaps more successfully than his predecessors, that this language has meaning specific to the realm of criminal defense, where lawyers themselves are targeted by the prosecution to give up confidences and to become the enemy of their clients. It is in the criminal defense crucible where the value of such a rule currently declared to be “lost of meaningful content” might yet be fulfilled. The tail may be theoretically less vestigial than a professor might think, and it will be wagged vigorously the next time the State subpoenas a defense lawyer for “facts” she might have learned by virtue of her representation of someone the prosecution very much would like to imprison or kill. We should keep the rule. To every person who may ponder its worth, you would do well to remember: the vestigial tail you save may be your own.

Keith S. Hampton, Treasurer of the Texas Criminal Defense Lawyers Association

"Home-grown" terrorists sprung from FBI snitch garden

A guilty verdict in Ohio this week is being hailed as the first successful prosecution by the feds of a "home grown" terrorist cell in the United States, and so it is. That observation begs the question, though: Who grew it?

Law enforcement justifies its employment of criminals as "snitches" with the claim that frequently there's no other way to solve a crime, which is true enough. But in some instances, informants themselves may generate more crime than they're stopping. The latest example of that phenomenon comes from the "War on Terror," where an FBI informant recruited and trained alleged terrorists for the Justice Department to prosecute. According to an AP report in the International Herald Tribune ("Defense attorney says FBI informant manipulated meetings with 3 charged in US terrorism plot," June 10):

Three men accused of plotting to kill U.S. soldiers in Iraq never would have met if it were not for an FBI informant who lied to create the illusion of a conspiracy, an attorney for one of the defendants said Tuesday during closing arguments in the men's trial.

The informant, former U.S. Army soldier Darren Griffin, initiated conversations about training for a holy war and arranged meetings between the defendants, attorney Stephen Hartman told jurors.

"He admitted he brought these men together," Hartman said. "It was his idea."

Griffin was the key witness against the three — Mohammad Amawi, Marwan El-Hindi and Wassim Mazloum — who have pleaded not guilty to conspiring to kill or maim people outside the United States. They face a maximum penalty of life in prison if convicted.

Jurors on Wednesday will begin deciding the case that began on April 1.

Griffin testified that he won the trust of the men by posing as a disgruntled soldier who converted to Islam. He secretly recorded his conversations with them for about two years until they were arrested in 2006.

At one point, Griffin told an FBI agent that he would meet with the men and "get them together to train," according to a transcript of the conversation.

Hartman said it was clear that Griffin manipulated the defendants and pointed out that investigators arrested them even though they found no guns, explosives or targets.

"He admitted he was fishing. Is that how we do things here now?" said Hartman, who represents El-Hindi. "This case is remarkable for what's not there."

The trial, he said, says a lot about how the government treats Muslims in America since the Sept. 11 terrorist attacks.

All three defendants are Muslim and have ties to the Middle East. All are U.S. citizens except Mazloum, who came to the U.S. legally from Lebanon. El-Hindi was born in Jordan. Amawi was born in the United States but also has Jordanian citizenship.

Justice Department attorney Gregg Sofer scoffed at the notion that Griffin orchestrated the investigation and coerced the defendants. "Darren Griffin isn't that bright," Sofer said Tuesday.

Prosecutors said last week that the three men had been actively planning to recruit and train terrorists while also learning to shoot guns and make bombs. It should not matter that they did not carry out any attacks, Sofer said.

Having not heard the other facts in the case, I can't judge the defendants' guilt or innocence from afar and don't mean to second-guess the jury. But one can certainly judge the wisdom, or the lack thereof, of a paid FBI informant recruiting and training people not otherwise involved in any ongoing criminal enterprise to plan to commit violence.

Mr. Griffin introduced the defendants, and he was the one who would "get them together to train." He wasn't informing on the group, by this account, he was leading it! Perhaps it's true he's "not that bright," as the prosecutor said, but it's a good bet his FBI handlers are.

The FBI, readers will recall, last year refused to reassure Congress that they do not tolerate "serious violent felonies" by their informants. That seemed like a surprising revelation at the time, but if the FBI is sending out informants who're charged with independently recruiting and training terrorists, the policy of tolerating "serious violent felonies" makes a certain perverse sense, though it's hard to see a valid public safety argument for the approach.

During the '60s and '70s the FBI used famously used spies and provocateurs to counter domestic anti-war and civil rights protesters, with informants even rising to relatively high-profile positions in the movement. The US Senate's Church Committee in 1976 studied the use of informants in counterintelligence and raised:

the issue of an informant's conduct and behavior. The Committee heard testimony on the difficulties inherent in an informant reporting on violent and criminal activity. To be in a position to report, the informant may have to participate in the unlawful activity to some degree. As one FBI handling agent testified of an informant in a violence-prone element of the Ku Klux Klan, "he couldn't be an angel and be a good informant." Where such an informant is paid and directed by the FBI, the Government may be placed in the at least unseemly posture of involvement through its agents in the activity it is seeking to prevent. At the extreme, the Government's informant may be held to have acted as an agent provocateur, that is, an agent of the Government who has provoked illegal or violent activity.

That appears to be at least to some extent what happened in this case, with the informant instigating and encouraging illegal activity instead of merely ratting out others.

Most reasonable people would agree the world would be a better place if these three extremists had never met and never been trained in weapons and explosives. So why did the FBI pay an informant for two years to recruit and train them?

Prescription drugs kill more people than illegal ones; new harm reduction strategies needed

Lately on this blog, discussions of "harm reduction" have centered around the Attorney General's nonsensical legal opinion and Bexar District Attorney Susan Reed's efforts to bully out of existence a legislatively approved needle exchange program in San Antonio. But to judge by newly available data, drugs targeted via needle exchange programs cause less "harm" to the general public than the ones distributed by pharmacists.

The biggest public safety threats related to illegal drugs in the United States arise from drug enforcement strategies that force the product to be delivered through a black market, resulting in violent conflicts among distributors, dangerously impure products, coercion and bribery of police, and a variety of other anti-social outcomes. Purely from a safety perspective, however, new data reveals that prescription drugs cause more deaths related to the drugs' actual effects, reports the New York Times ("Legal drugs kill far more than illegal, Florida says" June 15):

An analysis of autopsies in 2007 released this week by the Florida Medical Examiners Commission found that the rate of deaths caused by prescription drugs was three times the rate of deaths caused by all illicit drugs combined.

Law enforcement officials said that the shift toward prescription-drug abuse, which began here about eight years ago, showed no sign of letting up and that the state must do more to control it.

“You have health care providers involved, you have doctor shoppers, and then there are crimes like robbing drug shipments,” said Jeff Beasley, a drug intelligence inspector for the Florida Department of Law Enforcement, which co-sponsored the study. “There is a multitude of ways to get these drugs, and that’s what makes things complicated.”

The report’s findings track with similar studies by the federal Drug Enforcement Administration, which has found that roughly seven million Americans are abusing prescription drugs. If accurate, that would be an increase of 80 percent in six years and more than the total abusing cocaine, heroin, hallucinogens, Ecstasy and inhalants.

The Florida report analyzed 168,900 deaths statewide. Cocaine, heroin and all methamphetamines caused 989 deaths, it found, while legal opioids — strong painkillers in brand-name drugs like Vicodin and OxyContin — caused 2,328.

Drugs with benzodiazepine, mainly depressants like Valium and Xanax, led to 743 deaths. Alcohol was the most commonly occurring drug, appearing in the bodies of 4,179 of the dead and judged the cause of death of 466 — fewer than cocaine (843) but more than methamphetamine (25) and marijuana (0).

The study also found that while the number of people who died with heroin in their bodies increased 14 percent in 2007, to 110, deaths related to the opioid oxycodone increased 36 percent, to 1,253.

Florida scrutinizes drug-related deaths more closely than do other states, and so there is little basis for comparison with them.

The implications of this shift are enormous: More than one in five people in Texas prisons are there for crimes related to illegal drug sales or possession, but those strategies don't affect the drugs killing the most people. The same tactics could never be applied en masse to prescription drug abuse - the economies of scale would quickly overwhelm police and prisons. It would also tick off powerful political constituencies like doctors and drug companies who hire armies of lobbyists to promote their interests, as opposed to their Mexican drug cartel counterparts who just hire armies.

The substitution effect here is palpable: People abuse prescription drugs largely because of the stigma and legal difficulties arising from gaining access to illegal ones, even though they're not as safe. So to that extent, the shift toward prescription drug abuse counts as a drug war "success," but only if you redefine the term "success" to mean causing more deaths instead of preventing them. (The Economist recently declared it a success to shift people from using meth to cocaine, but the Florida study says coke is much more dangerous to users than crank; by that logic, to judge by these data, it'd be a public safety success to get people to shift from Vicodin or Xanax to marijuana, which didn't kill any Floridians last year.)

"Harm reduction" historically focused on illegal drugs, but what if that's not main source of drug-related harm? What's needed now, apparently, are more addiction treatment resources and harm reduction strategies aimed at legal prescription drugs.

CCA Judge Cathy Cochran: Privilege rule proposed for deletion a "vestigal tail" with "no wag"

Here's an update straight from the source on proposed changes to Texas' attorney client privilege rule in criminal cases that's been in place since 1856. I couldn't be more flattered that Texas Court of Criminal Appeals Judge Cathy Cochran offered up this guest post reacting to a recent Grits item quoting Dallas defense lawyer Robert Guest, a law blawgger who's been sounding the alarm. I should be clear, though, as she was, that Judge Cochran is writing on her own behalf as an attorney, not in her capacity as a CCA Judge. (Even so, I wonder if any of the other eight want to sign up for guest blogging stints?!)

For more background, here's the text of the new rule she's discussing, and here's a letter from a federal public defender defending the rule. Lawyers in particular, let us know in the comments what you think of the proposed rule change in light of Judge Cochran's explanation. And thanks, Judge Cochran, for sharing your views with Grits readers.

From Judge Cathy Cochran, via email -

I am responding to your June 9, 2008, posting about the proposed deletion of Rule 503(b)(2) of the Texas Rules of Evidence, not as a judge on the Court of Criminal Appeals, but as an attorney who has studied and written about our rules of evidence for 25 years.

The deletion of the “Special Rule of Privilege in Criminal Cases” was proposed by UT Professor (and former interim Dean) Steve Goode, one of the three authors of the Texas Practice Guide to the Texas Rules of Evidence. Professor Goode has called this provision a “deceptive little sentence” which is confusing, misleading, and does not have any known independent meaning. In the most recent edition of his treatise, Professor Goode states:

When the consolidated rules of evidence were promulgated [in 1998], it [this “special” rule] reappeared, this time as Rule 503b)(2). The decision to include this oft-repudiated language in the new rule, under the title “special rule of privilege in criminal cases,” is truly bizarre. One can only hope that the Court of Criminal Appeals will reconsider and delete this provision from the new Rule before it generates any mischief.

Professor Goode is a member of the Rules Advisory Panel, an informal working group of two professors, a court of appeals justice, a district court judge, a defense attorney, and a prosecutor that advises the Court of Criminal Appeals on possible changes to the Rules of Evidence and Rules of Appellate Procedure. Professor Goode wrote a scholarly memo to the group in October of 2007, recommending the deletion, and, at its November meeting, the group unanimously agreed that the “special rule of privilege” was confusing, misleading, and devoid of any known content. It recommended that the Court delete it, but added an official comment to the deletion:

This rule governs only the lawyer-client privilege. The deletion of former Rule 503(b)(2) [Special rule of privilege in criminal cases] is not intended to restrict the scope of either the work-product doctrine or the lawyer’s professional duty not to reveal the confidential information of a client. See Texas Disciplinary Rule of Professional Conduct 1.05.

That is, the deletion did not affect the attorney-client privilege as it is set out in the rest of Rule 503 and it did not affect either the attorney work-product doctrine or the lawyer’s ethical responsibilities of confidentiality. In essence, the deletion was intended to eliminate a vestigial tail that had no wag to it. See Texas Rules of Evidence Handbook, 513 (Houston Law Review 1993) (suggesting that “one might conclude that the last sentence in Criminal Rule 503 is nothing but a vestigial tail carried over from the prior statute where it also had lost any meaningful content.”)

Why did Professor Goode think this rule has no independent meaning in the modern era? The language itself has been enshrined in Texas statutes since 1856. At that time it was seen as part of the common-law attorney-client privilege. In 1965, the Texas Legislature enacted article 38.10 which set out the then-existing attorney-client privilege:

An attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which comes to the knowledge of such attorney by reason of such relationship.

This was a very succinct (perhaps too succinct) expression of the attorney-client privilege as it existed under the common law. As noted by Mr. Richard Anderson, the Federal Public Defender of the Northern District of Texas, in a recent, scholarly letter to the Court of Criminal Appeals opposing the deletion of Rule 503(b)(2), “A series of cases winnowed the ‘any other fact’ language to providing little additional substantive protection at all” to the common-law attorney-client privilege.

Thus, even before the enactment of the Criminal Rules of Evidence in 1986, this “mysterious” language did not appear to have any independent meaning. When the Criminal Rules of Evidence were promulgated in 1986, the drafters recommended that this infelicitous and superfluous language be left out of Rule 503, but defense attorneys asked that it be included in the attorney-client privilege, if only for its symbolic value. So it was. And, despite the fact that this “special rule” had not been used as the basis for excluding evidence in the twelve years between the promulgation of the Criminal Rules of Evidence in 1986 and the melding of the Civil and Criminal Rules of Evidence in 1998, it was dutifully carried forward in the combined rules. In fact, this “special” rule has not been used to exclude otherwise admissible evidence for more than a century.

It may be thought that this “special rule” is an oblique reference to the attorney work-product doctrine in Texas. It might be, but the scope of the work-product doctrine has been developed by judicial cases, not by this rule. Rule 503 does not even pretend to deal with the entirely distinct concept of the work-product privilege. It deals only with the attorney-client privilege, as the title of the rule states. These are two separate privileges and they should not be confused, mingled, or mashed together. As Professor Goode has argued, the “special rule,” nestled within the attorney-client privilege rule, confuses the two different doctrines.

Mr. Craig Jett, President of the Texas Criminal Defense Lawyers Association, came to last month’s meeting of the Rules Advisory Panel and asked the group to recommend retaining the “special rule” as a bulwark against encroachment upon the work-product doctrine. He did not believe that the official comment to the 2008 deletion of the “special rule” was sufficient to guard against a possible erosion of the work-product privilege. The Advisory Panel thought that he had valid concerns. It suggested that he and Mr. Anderson draft a proposed rule covering the scope of the work-product doctrine in Texas criminal cases–a separate evidentiary rule protecting both defense and prosecution work product–that might be promulgated by the Court of Criminal Appeals or as a Code of Criminal Procedure statute to be enacted by the Texas Legislature. It was felt that a rule that actually said something concrete would be more valuable than a “mysterious” rule that, according to Richard Anderson, has only the power of “sympathetic magic.” The panel agreed with Mr. Anderson that

there are few policy arguments against codifying work product as a rule of evidence. The fact that work-product performs a different function than the attorney-client privilege only militates in favor of its inclusion into the rules of evidence. The evidentiary rules provide a legal protection from the court. The professional rules of conduct cannot prevent a court from compelling a defense attorney to testify about facts underlying his investigation of the case. In other words, keeping the provision could only be beneficial for the criminal justice system and hardly causes any harm.

One might conclude that the “special” rule has not caused any harm because its “mysterious language” has been studiously ignored. If Texas criminal practitioners want an effective and meaningful attorney work-product privilege rule, they can and should draft one. “Sympathetic magic” may have some symbolic value, but it surely does not have the value of a robust, explicit, and clear rule that courts may easily apply.

Informed and deliberate debate is essential to the progress of the Texas criminal justice system. One hopes that the current dispassionate and scholarly debate will lead to tangible improvements.

Potter County Sheriff convicted of bribe taking; comprehensive audit needed of jail commissary contract awards

An all-woman jury yesterday in Amarillo brought back a guilty verdict against Potter County Sheriff Mike Shumate for taking bribes from the Dallas-based commissary manager, Mid-America Services. The "bribes" the state was able to prove were mostly meals, though quite a few of them, according to the Amarillo Globe News ("Shumate guilty," June 13):

Shumate testified he never took any bribes, but did say he accepted meals from Austin and Jack Madera, the founder of Mid-America.

Prosecutors with the Texas Attorney General's Office have shown receipts and bank statements that show Shumate attended about 36 meals with Madera and/or Austin that were paid for by the Mid-America employees.

During testimony, Shumate said Madera offered him $10,000, but that he declined the money.

"I said I didn't need it," Shumate testified.

Hmmmm. I'd prefer the Sheriff had replied to Mr. Madera, "It's illegal to try to bribe a public official. You're under arrest." (Madera has since died of cancer.)

Mid-America Services was also previously accused of bribing former Dallas County Sheriff Jim Bowles, but charges against Bowles and Madera were dropped after the Sheriff left office.

Commissary contracts have been a big source of alleged corruption in Texas Sheriff's Departments in the past year. In Bexar and Kleberg Counties, a Louisiana based company called "Premier" allegedly bribed the Bexar County Sheriff with swank golfing trips and gave the Kleberg Sheriff private consulting contracts after he left office.

In San Antonio, DA Susan Reed asked a grand jury to indict the Sheriff on bribery charges, but did not pursue them against the company allegedly doing the bribing. Unlike in Amarillo, she and the Sheriff were from opposite political parties and some locals thought the charges smacked of political opportunism. In Amarillo, though, the Sheriff and DA are both Republicans and the alleged briber has been indicted, too. (Unlike in Bexar, the DA handed off actual prosecution duties in the case to the Attorney General.)

Looking back at past Grits coverage, I find the conclusion I arrived at last year still applies equally well today:

It's clear that Texas needs to perform a comprehensive investigation/audit of county jail commissary contracts statewide. The obvious entity to investigate would be Attorney General Greg Abbott. But that would anger a lot of local pols and generate entirely predictable blowback, so I'm not holding my breath for him to do that. Otherwise, the Texas Commission on Jail Standards lacks the staff and perhaps the expertise and authority. The State Auditor might be another agency that could investigate in greater detail. Or perhaps one of the legislative committees on criminal justice will include the subject in an interim study.

But since none of that is likely to happen anytime soon, for now I'd call on every local newspaper and media outlet in the state (including any ambitious bloggers) to talk to your local Sheriffs' Office. Find out if commissary services are contracted or performed in house, and if it's a contract, file open records requests for all the communications you can lay your hands on between the company and the department, particularly the Sheriff. Odds are, similar corruption is going on elsewhere that nobody has uncovered yet.

That's as true today as when I wrote it; to my knowledge no one has begun to comprehensively examine how counties award commissary contracts despite the rash of alleged corruption. Once may be an anomaly, twice a coincidence, but three cases in a year seems to be a pattern. Where will the next allegations of jail commissary corruption crop up, and who will discover them?

Sheriff Shumate's sentencing hearing will occur on Tuesday.

Tales from death row: Passion and intrigue marked two capital trials

To mind-blowing stories from death row deserve Grits' readers attention:

At State of Mine, Texas Monthly editor Evan Smith reprints an email from reporter Mike Hall about the astonishing case of Charles Hood, who was sent to death row after a Collin County trial in which the judge and the prosecutor were secretly having an affair. As Hall wrote, "If you were on trial, would you want to go before a judge who was having an affair with the person trying to send you to prison — or worse, trying to have you executed?" That's a pretty grim thought, alright. (RELATED: See "Ardor in the Court" from Salon.)

Meanwhile, the Burleson judge in the long-running Anthony Graves capital murder case keeps allowing into evidence testimony by a dead man who later recanted in gross contradiction with the US Supreme Court's Crawford ruling regarding the right to confrontation of witnesses. Reported Jordan Smith at the Austin Chronicle:

Judge Reva Tows­lee-Corbett denied a writ filed by Anthony Graves' defenders, who argue that the charges against their client should be tossed because the state's attempt to retry Graves violates his right to due process and amounts to double jeopardy. Towslee-Corbett's latest ruling reaffirms the position she took last summer, concluding that the testimony of a dead man, Robert Carter, could be used as evidence against Graves at trial – even though the fact that Carter is dead, executed by the state in 2000, would certainly preclude Graves from exercising his Sixth Amendment right to cross-examine the witnesses against him.

Indeed, the dead-man-testimony issue lies at the heart of the writ filed by Graves' new defense team, attorneys Kather­ine Scardino and Jimmy Phillips Jr. They argue that because Carter's coerced and perjured testimony at Graves' original 1994 trial was crucial to the 5th U.S. Circuit Court of Appeals decision in 2006 to vacate Graves' conviction, the state cannot now use that tainted testimony in their attempt to secure a second conviction.

Carter, convicted and executed, fingered Graves as his accomplice in the 1992 multiple murder of Bobbie Joyce Davis, her daughter, and four grandchildren. Graves has maintained his innocence, and none of the physical evidence links Graves to the crime. Carter later recanted, telling Graves' lawyers that Graves was not at all involved in the grisly murders, that he'd merely plucked Graves' name out of the air (he'd seen him earlier on the day of the murders), and that he had done so to protect his wife, Cookie, from police scrutiny. (Indeed, minutes before his execution, Carter again swore Graves was innocent: "Anthony Graves had nothing to do with it. I lied on him in court.")

What Graves did not know at the time of his 1994 trial, however, was that Carter had already recanted his statement implicating Graves in the murder to then-Burleson Co. District Attorney Charles Sebesta, before Sebesta put Carter on the stand at Graves' trial. Not only did Sebesta fail to provide the exculpatory evidence to the defense – as required by law – but he ignored it in presenting Carter as a witness, allowing perjured testimony to be entered into the record. After more than a decade of appeals, the 5th Circuit in 2006 overturned Graves' conviction based on Sebesta's misconduct: "[I]t is obvious from the record," the 5th Circuit opined in 2006, "that the state relied on Carter's testimony to achieve Graves' conviction."

Notwithstanding the 5th Circuit's conclusion, Towslee-Cor­bett ruled that the transcript of Carter's questionable testimony would be allowed in court. ...

The defense argument goes like this: In finding that the state essentially suborned perjury from Carter at the trial and failed to provide to Graves information that Carter had recanted the portion of his statement inculpating Graves, the 5th Circuit ruled that the district court could not again allow the tainted testimony to be used as evidence against Graves. By ruling that the testimony would be allowed, Towslee-Corbett has thumbed her nose at the federal bench, once again stacking the evidentiary deck in favor of the state.

Anthony Graves' is one of those cases that makes you think Dallas DA Craig Watkins' idea to create penalties for Brady violations might be a good idea. That's pretty smarmy lawyering to use testimony from a dead man who recanted and not tell the defense he'd changed his testimony.

Cost per case at Dallas Public Defender much lower than private attorneys

Over at the Dallas Observer's blog, Unfair Park, Robert Wilonsky links to this 2005 "feasibility analysis" (pdf) from the Texas Task Force on Indigent Defense regarding creation of a PD offices in Texas that specifically compares the savings Dallas County enjoys because of it's PD office to the cost of hiring private attorneys (see Table 2, p. 10):

In 2005 according to these data, the attorney cost per felony case at the public defender office was $303.04 per case, compared with $544.62 per case for private attorneys handling indigent clients. For misdemeanors, the average cost per case at the PD office was a paltry $65.86 in 2005 compared with $118.94 for private counsel.

All told, found the report, the total savings from using the PD office instead of private appointed attorneys would have been $7.2 million that year if all indigent cases had used the PD attorneys. The analysis concluded, "In both misdemeanor and felony courts, where judges rely more heavily on public defenders for indigent defense, costs per case are substantially lower. Conversely, costs per case are highest where courts choose not to use public defenders."

The problem arose after the 2006 elections, when some rookie local judges quit assigning as many cases to the public defender office, causing their per-case cost to rise (for specific courts - overall PD costs per case are still lower). In addition, PD lawyers in recent years have more frequently taken cases to trial and spent more time securing services and shepherding mentally ill clients through the system, the Dallas News reported.

The more I consider the matter, Price's complaints seem to stem from the notion that he'd like the criminal courts to act even more as a plea mill (i.e., more cases processed per lawyer) than is already the case. Take a case to trial, give extra attention to the mentally ill, go out of your way to zealously defend your client's rights or even prove their innocence, and Commissioner Price thinks you're lazy and not processing cases quickly enough. At least that's the attitude that's come across in his public statements.

It's pretty clear that when Dallas judges use the PD system it saves the county money. Mr. Price should aim his animosity at jurists whose decisions are costing the county instead of PD lawyers who can't control the cases they're assigned.

RELATED:

• Rothgery v. John Wiley Price: Move to slash public defender budget couldn't come at worse time
• Dallas public defender budget saves county money compared to neighbors

Rothgery v. John Wiley Price: Move to slash Dallas public defender budget couldn't come at worse time

In the wake of Dallas County Commissioner John Wiley Price's high-profile putsch at the county's public defender office, many in Big D are taking seriously Price's threat to fire large numbers of lawyers, slash the PD office budget, or even eliminate it entirely.

His timing couldn't be worse.

Sometime soon the US Supreme Court will issue its opinion in Rothgery v. Gillespie County, a Texas case about which oral arguments were heard in March. At issue: Whether the right to counsel attaches at the bail hearing or only upon indictment, as is currently the case?

According to briefs before the court (see the Rothgery SCOTUSWiki page), 45 of 50 states already attach the right to counsel at the earlier stage in the process, but not Texas. A majority of justices during oral arguments, led by Justice Kennedy, appeared sympathetic to the plaintiff and inclined to overturn the 5th Circuit (which is becoming sort of a hobby for SCOTUS).

If Mr. Rothgery prevails - and the decision could be released at any time - then the right to counsel will attach sooner in the process than in the past, increasing the county's cost for lawyers and requiring more attorneys to be appointed earlier. But if the timing of the change coincides with a reduction of public defenders in Dallas, Price's putsch will create more docket delays, more unnecessary incarceration, and greater cost for the county while courts go through the process of hiring private attorneys sooner.

Commissioner Price proposed PD Office cuts hoping to stave off a tax increase, but depending on how SCOTUS decides the Rothgery case, cutting their budget right now could have unintended but entirely foreseeable consequences that balloon the county indigent defense budget instead of deflate it.

RELATED: Dallas public defender saves county money compared to neighbors.

ACLU lawsuit challenges strip searches, punitive isolation of girls at TYC Brownwood unit

ACLU's national women's project and the ACLU of Texas filed suit today over use of solitary confinement and strip searching among girls housed at the Brownwood unit, according this press announcement :

a class action lawsuit [filed] today on behalf of five girls – all of whom have histories of sexual, physical, or emotional abuse – held in the Brownwood State School. Brownwood is a “high security” youth prison located in central Texas and operated by the Texas Youth Commission (TYC), the state’s juvenile corrections agency. The ACLU charges that TYC subjects the girls to unwarranted solitary confinement, routine strip searches and brutal physical force.

“Throwing children into cold, bare solitary confinement cells is profoundly damaging, especially to children who previously have been abused," said Mie Lewis, staff attorney with the ACLU Women’s Rights Project. “The ACLU has closely monitored developments in the Texas Youth Commission over the last year, and although we see some improvements, TYC’s reliance on solitary confinement has to stop.”

The ACLU charges that the treatment the girls have suffered violates their constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments as well as international standards protecting children from abuse and prohibiting torture and other forms of cruel, inhuman or degrading treatment or punishment. The lawsuit was filed in U.S. District Court for the Western District of Texas.

“We are optimistic that we can meet with the defendants soon and come to an amicable solution,” said Lenora Lapidus, Director of the ACLU Women’s Rights Project. “It’s in the interests of both the children and TYC to stop these practices.”

Brownwood State School serves as the reception site for all girls committed to TYC custody and nearly all girls in custody in Texas are held there. Brownwood holds approximately 150 girls who have been sent there for offenses ranging from school-related disciplinary infractions to minor property offenses and more serious offenses.

Girls at Brownwood are regularly placed in punitive solitary confinement in oppressively cold, concrete cells, empty except for a metal slab intended to be used as a bed. Solitary confinement is imposed for minor misbehavior, for self-harm or for expressing a desire to commit self-harm. Terms of solitary confinement can be brief or can last for days, weeks and even months.

Upon entering or exiting solitary confinement and on other occasions when they have not left the facility - for example, when they finish a work assignment within the prison - girls are subject to invasive strip searches. When girls resist, guards regularly use physical force, pepper spray, handcuffs and leather straps to force them to comply. These tactics are also used on girls already in solitary confinement in response to self-harm, shouting, and banging on the wall. Girls subjected to this treatment report suffering flashbacks to childhood rapes and feeling degraded, humiliated and afraid.

“The link between psychological trauma and delinquent behavior is well established,” said Lisa Graybill, Legal Director of the ACLU of Texas. “Instead of helping girls learn to cope with their experiences, TYC is re-traumatizing them through the use of solitary confinement and strip searches. TYC must do better, for the sake of our clients and all children in the state's custody."

Attorneys on the lawsuit, K.C. et. al v. Nedelkoff et. al, include Lewis and Lapidus from the ACLU Women’s Rights Project, Graybill from the ACLU of Texas, Steven M. Watt from the ACLU Human Rights Program and Elizabeth Alexander from the ACLU National Prison Project.

The complaint is available online here.

The motion for class certification and memorandum in support of motion for class certification are available online here.

Some of the complaints in the press release echo those set forth by national ACLU's women's rights project in their report last year proposing reforms aimed at girls housed at TYC. A cursory review of the complaint reveals the crux of ACLU's lawsuit appears to oppose "punitive solitary confinement and routine strip searches," particularly for girls housed the Brownwood unit

Perhaps relatedly (?), TYC recently stopped using long-term isolation as part of their "aggression management" program, but ACLU's allegations appear to be aimed at the BMP ("Behavioral Management Program") which is the euphemism used to describe more routine use of solitary confinement on individual campuses.

UPDATE: See initial coverage from the Abilene Reporter News, the Houston Chronicle, AP, and a profile of ACLU's 5 plaintiffs.

Recording full interrogations would have saved a lot of grief in Austin's Yogurt Shop case

It's been 17 years since the infamous Yogurt Shop murders rocked the Texas capital, and as time passes it's becoming more difficult to determine where investigators went wrong in building their case against Robert Springsteen and Michael Scott.

But go wrong they did.

A combination of coerced confessions and new DNA evidence appear to be causing their case to crumble. The Austin Statesman's Steven Kreytak reports ("Yogurt defense lawyer lashes out at prosecutors," June 12):

A lawyer for Robert Springsteen, facing retrial in the 1991 Austin yogurt shop slayings of four teenage girls, chided prosecutors Wednesday for failing to disprove his contention that DNA evidence disclosed this year exonerates his client.

Joe James Sawyer spoke outside court after an otherwise uneventful pretrial hearing in the case of Springsteen's co-defendant, Michael Scott, whose lawyers say also is cleared by the DNA evidence.

Both men disavow confessions they gave Austin police in 1999, saying they were coerced. An appeals court threw out their previous convictions, saying Scott's confession was improperly allowed at Springsteen's trial and vice versa.

They stand accused of capital murder in the deaths of Amy Ayers, 13; Eliza Thomas, 17; and sisters Sarah and Jennifer Harbison, 15 and 17. The girls died during a robbery at the I Can't Believe It's Yogurt store near Northcross Mall in North Austin.

In April, prosecutors said that in preparation for the retrials, they ordered new DNA testing of swabs taken from Ayers' body. Prosecutors said previously undiscovered DNA was found and it did not come from Scott, Springsteen or two men initially charged as co-defendants: Forrest Welborn and Maurice Pierce.

Prosecutor Gail Van Winkle said at the time that the discovery does not prove that Scott and Springsteen are innocent and said prosecutors were having testing done to determine the source of the newly discovered DNA.

On Wednesday, she said that testing had not been completed.

Sawyer said they are moving too slow.

"The law has passed them by," Sawyer said, referring to the appeals court rulings.

"The science has surpassed their arguments," he said of the DNA evidence.

False confessions are much more common than most people think, and in this high-profile case they were a particular problem. More than fifty different people confessed to the Yogurt Shop murders! By definition most people who confessed weren't involved. In that context, virtually any confession becomes suspect.

Now that DNA evidence found at the scene failed to match any of the suspects in the state's theory of the crime, the case against Springsteen and Scott appears to be wearing awfully thin, especially since the appellate courts have said they can't use one another's confessions against each other.

The critical piece of evidence in the case - Michael Scott's confession - was videotaped, but only the end result, not the full interrogation which lasted more than 22 hours. The Court of Criminal Appeals later agreed it should be excluded. If the entire interrogation were recorded, we'd either see a coercive situation were the defendant was pressured to confess, or clear evidence the police did the right thing. We wouldn't be wondering after the fact whether coercion took place: We'd know.

I'm learning in a book I'm currently reading, Police Interrogations and American Justice by Richard Leo, that part of the reason false confessions happen is that US police are trained to use an inquisitory instead of an information gathering approach to interrogations like police in other countries. Under the American model, the investigative target is accused of the suspected offense as a routine part of the investigation. Denials are cut off by interrogators, sometimes angrily. Crime details or even false information may be fed to suspects in order to trap them into a lie.

According to Leo, about half of all criminal convictions (45-55%) result from confessions to police. "American detectives assume that the suspects they interrogate will initially lie to them and deny their guilt," he writes. "Detectives assume suspects will lie because it is not in their rational self-interest to provide the state with testimonial evidence that almost certainly will lead to his arrest, prosecution, conviction and incarceration. The modern methods of psychological interrogation have been designed to break down a suspect's denials of guilt by persuading him that he has no meaningful choice under the circumstances but to comply with detectives, and that contrary to all appearances, logic, and common sense he is better off by confessing."

So applying that observation to the current instance, Austin detectives used these inquisitorial techniques to aggressively accuse hundreds of possible suspects during their investigation, in many cases refusing to let them out of the interrogation room for many hours. The questioning was so aggressive that many innocent people threw up their hands and agreed, "I did it." That's how you get dozens more people confessing to a crime than could actually have been involved, as in the Yogurt Shop case.

Remember, if Springsteen and Scott didn't do it, that means the real killers may still be out there.

Recording interrogations helps prevent wrongful convictions and protect officers from false allegations. In most cases it actually helps the prosecution more than the defense, at least when they've accused the right person. Given how cheap recording technology has become, I can see little justification for not routinely recording what happens in police interrogation rooms. Not only does the practice prevent false accusations of coercion or misconduct during questioning, it captures tidbits of information that might be missed if an interrogating officer must write up the event from memory or notes afterward.

It's just impossible to know what went on in the hours before Michael Scott's confession, and that's the main reason these cases appear headed for the rubbish pile.

If the pair is actually innocent, it's taken far too long to figure it out and a tremendous injustice has been done to them. If they're guilty, the failure to record what happened in that interrogation room back in 1999 will most likely be the reason the state can't convict them.

Former official voice of Texas death row now a defense witness

After serving as TDCJ's public spokesman for Texas' death penalty system for eight years, Larry Fitzgerald switched sides, earning him the label "traitor" from some of his former colleagues along with a new career as an expert witness. The Chicago Tribune has an interesting story today documenting Fitzgerald's new career ("Voice of death testifies for life," June 12) and the blowback its earned him from those on whose behalf he previously spoke. Since he left the state's employ in 2003, he's testified in more than two dozen trials, mostly capital defendants.

Fitzgerald's testimony most frequently focuses on the issue of future dangerousness, describing what happens to a prisoner who's convicted of a life sentence. "I needed somebody [who] could speak with firsthand information about how someone convicted of capital murder and sentenced to a life sentence would be handled," one attorney told the Tribune. "So the jury would be assured the security system could handle someone like that. It was his business as spokesman to make sure he knew what was going on all over the prison system."

See also (above) the effective chart published with the story portraying the portion of executions in Texas by year as a percentage of the whole. Texas accounted for 37% of all executions since the death penalty was revived in 1982, and 60% of executions in 2007. Texas' first execution since the Baze moratorium was lifted occurred last night, and 12 more are currently scheduled between now and the fall.

Dallas public defender saves county money compared to neighbors

The main reason I think Dallas County Commissioners must have some ulterior motive in hounding chief public defender Brad Lollar out of his position this week is that their stated reasons - lazy lawyers and high costs at the PD office - make little sense on their face. Lawyers in the Dallas PD office have been told their agency may be dramatically slashed in the coming budget or even eliminated.

Most counties in recent years would have been thrilled to see their indigent defense costs rise as slowly as in Dallas. Indeed, if Dallas county were to slash the public defender budget, there's little question their costs would increase to match higher recent costs experienced by counties without a PD.

In 2005 a consultant hired by neighboring Tarrant County (Fort Worth) contrasted their indigent defense costs in the wake of passage of Texas' Fair Defense Act in 2001 to their neighbors and the rest of the state, and officials would do well to recall that the Dallas defender office fared particularly well by comparison. Expenditures for court appointed counsel increased 40% statewide in the three years after the Fair Defense Act passed, compared to 13% in Dallas. In Tarrant, the increase was a whopping 87% over that period.

Dallas never absorbed those extra costs because the public defender office buffered county taxpayers from the blow. But if they decide to get rid of the PD office or scale it back dramatically, they need only to ask their neighbors in Tarrant how much indigent defense costs will increase down the line.

The right to counsel in criminal cases is a constitutional guarantee, not an optional expense for the county. If Dallas County Commissioners think the PD office is too pricy, I think they'll be shocked to discover the alternatives cost a lot more.

RELATED: In Georgia, a judge decries "irresponsible" cuts to Fulton County PD office. Some of the Dallas judges are ex-members of the PD office. I wonder what they think about what's happening? Several other states are struggling with rising indigent defense costs. People in the US seem to forget that if you want to operate the largest prison system on the planet, you have to pay to play.

Odds and Ends

Several recent stories captured my attention that I haven't had time to write about, but I wanted to at least take a minute to point them out to Grits readers in case y'all had something to say about them:

• Dallas DA Craig Watkins accused of exchanging "face time" with the DA to corporations for office party sponsorship. AHCL over at Life at the Harris County Criminal Justice Center calls the incident a "stumble during the walk on water."

• The prosecution rested yesterday and the all-woman jury may begin deliberating soon in the commissary-related corruption trial of Randall County Sheriff Mike Shumate in Amarillo.

• The Murphy police chief who facilitated a partnership with NBC's Dateline resulting in a suicide by an investigative target (an assistant DA from a neighboring county) was fired for his role in the TV show cum investigation.

• An elderly civilian was killed in Dallas when a "bait car" left on the side of the road to lure auto thieves crashed during a getaway. Police were unable to disable the bait car remotely, which was the premise of the program. The "bait car" idea has been temporarily suspended while DPD evaluates the incident (and probably their legal liability).

• A jury acquitted a former Wilson County Sheriff's deputy of pistol whipping a suspect last year, but the department doesn't want him back and he's probably leaving law enforcement.

• Austin police fired an officer this week - a rare occurrence indeed, for lying about a suspect in an investigative report. The officer claimed the suspect resisted arrest and alleged facts disputed by the in-car video, which the officer tried to conceal from investigators. See the APD memo terminating the guy.

Meanwhile, in border towns just south of the Rio Grande:

• Juarez (El Paso's sister city) has witnessed more than 500 drug-related murders since the beginning of the year, and the situation has deteriorated to the point where the city of El Paso is asking for federal assistance to pay for medical care for wounded Mexican cops.

• Mexican police have botched the investigation of reporter Roberto Mora from Nuevo Laredo, who was assassinated after reporting on activities of local drug cartels, "by torturing suspects and mishandling evidence, the country's human's rights commission said."

Judge to CPS: Shut down investigation of YFZ family

Now that the Texas Supreme Court has sided with the YFZ Ranch parents, other judges are beginning to step up to the plate to rein in overreaching policies by Texas CPS. In one of the child custody cases resulting from the Great Eldorado Polygamist Roundup, a San Antonio District Judge:

issued the restraining order, which for now keeps Child Protective Services investigators from continuing their investigation.

“I am not going to allow CPS or any other agency to interfere with parents in this state,” the judge said.

According to the FLDS couple's attorney, "the state had already tried to move the case back to West Texas and was denied by the 4th Court in a May 22 ruling." Now the state is heading to the 4th Court of Appeals again to overturn the restraining order.

This could be the beginning of a chain of events that could actually shut down CPS' investigation into families where there's no allegation of abuse, whereas the Supreme Court's ruling merely sent the kids home but allowed the investigation to continue. Definitely one to watch.

MORE: From the Common Room.

Study: Mentally ill offenders account for 10% of homicides

Thanks to Kristin Houle at Prevention Not Punishment for pointing out this Wall Street Journal op ed ("Compassion, compulsion and the mentally ill," E. Fuller Torey, June 9) discussing new research on how much violent crime by mentally ill people may be attributed to underfunded mental health treatment:

"The debacle of deinstitutionalization continues to worsen with each passing year. In 1955, there were 559,000 individuals in America's state mental hospitals. By 2005, there were only 47,000 state hospital beds left in the country, a number that continues to fall. Numerous studies have documented the tragic effects of releasing hundreds of thousands of seriously mentally ill individuals from state hospitals while failing to ensure that they receive treatment.

The latest, carried out by Jason Matejkowski and colleagues at the University of Pennsylvania, found that individuals with serious mental illnesses are responsible for 10% of all homicides in Indiana. That translates into approximately 1,700 out of 17,034 total homicides in the U.S. in 2006. Over the past 20 years – during which time the public mental-health system has progressively deteriorated – that would mean 38,000 of 388,311 total homicides. ...

Although the Indiana study is the largest research of its kind in the U.S., two earlier but smaller studies reported that seriously mentally ill individuals were responsible for 10% of homicides in Contra Costa County, Calif., and 29% of homicides in Albany County, N.Y.

Most of these homicides were preventable, since the perpetrators in most cases were not being treated. Nontreatment, a past history of violent behavior and substance abuse are strong predictors of potential dangerousness in this population. We have proven options for decreasing such violence, including outpatient commitment. These programs require mentally ill individuals at high risk for violence to continue taking medication as a condition for living in the community. ...

Another is the misconception that such programs are expensive. In fact, it is our failure to use such laws that is expensive. Repeated hospital readmissions, incarceration costs, and the costs of homicides and other associated violence take a far greater toll on local, state and federal coffers.

The societal cost of not treating the seriously mentally ill is staggering. They constitute at least one-third of the homeless population. Unable to defend themselves because of their disabilities, they are often exploited and victimized. Approximately 5,000 commit suicide each year – one-sixth of all suicides. An estimated 230,000 are in jails and prisons, 10% of all incarcerations. ...

In the end, involuntarily treating people with serious mental illnesses – who, because of their illnesses, are not aware they are sick – does not infringe on their civil rights. The fears of civil libertarians notwithstanding, the paramount civil right of someone who is severely mentally ill should be adequate treatment.

It's long been clear to me that from an economic perspective, front-end investments in mental health treatment make a lot more sense than waiting for failure and paying the much-greater costs of back-end incarceration when a mentally ill person commits serious crimes. (The latter approach also generates a lot of chaos within the system before they finally get to that point.) About 30% of Texas prison inmates were prior clients of the state's indigent mental health system. But these data seem to show there's a tangible public safety benefit to expanding publicly funded mental health care.

Conversely, they show the current underfunded mental health system may actually harm public safety.

Levin: Britain's Conservative Party pushing incentive-based prison models similar to Texas' probation reforms

One of the reasons I track jail overcrowding around the state is that many counties face the same problems, so it makes sense to compare different solutions that arise and share them with others facing the same challenges. Similarly, Texas' prison system isn't alone in facing an overcrowding crisis. Other states and even other countries face essentially the same dilemma (though usually on a lesser scale).

Marc Levin from the Texas Public Policy Foundation has an op ed column in the Fort Worth Star Telegram today ("Getting more out of Texas prisons," June 10) calling for use of incentive-based funding for prisons, probation and parole departments aimed at reducing recidivism.

Leaders from the Texas Capitol to European houses of parliament are increasingly recognizing that reducing recidivism is crucial to controlling future incarceration costs and the incalculable human costs to victims and communities from criminal activity. This realization inspired a 111-page manifesto released in March by England's Conservative Party, titled Prisons with a Purpose: Our Sentencing and Rehabilitation Revolution to Break the Cycle of Crime.

The plan would fund prisons partly based on their results. A basic tier of funding would keep the lights on at prisons and parole offices, while a second tier of funding would be based on performance, primarily measured by recidivism within several years of release.

See the full paper from Britain's Conservative Party, "Prisons with a Purpose" (pdf), which opined that:

Overcrowding is the key cause of failure in the current prison system. By overburdening the prison estate, it inhibits the process of rehabilitation and attempts to reduce re-offending. British prisons have often in the past reached near to maximum capacity. However, never before has its capacity been exceeded. Prison overcrowding has now reached dangerous levels. At the end of January 2008, 85 out of 143 prisons were overcrowded, and more than 15 prisons were above the total number each could safely and securely hold.

The Conservative Party said overcrowding reduces prisoners access to rehabilitative programming and increases both suicides and a variety of misbehaviors by prisoners, from minor disturbances to violence. Prison crowding also causes "churn," said the CP, meaning "Prisoners are moved to the available space, which means frequent moves from prison to prison. An inmate’s ability to settle in, maintain links with his family, establish a stable regime or receive continuous training and educational programmes is significantly reduced." The report continues:

Whether offenders serve their sentences in the community or in custody, there should be a far stronger focus on rehabilitation. Community sentences must contain an element of punishment which is enforced – but they should also ensure that offenders get off drugs or alcohol dependency, and get into the world of work. Equally, prisons should be places of education, hard work, rehabilitation and restoration. ... Offenders leaving custody, especially short-term prisoners, need support to get resettled and find work.

Levin picks up on the Conservative Party's incentives idea to argue for expanding incentive-based private prison contracts, but he also likens the approach to the probation policies promoted over the last couple of sessions by House Corrections Committee Chairman Jerry Madden and Senate Criminal Justice Committee Chairman John Whitmire: Using incentives to encourage policy changes at local probation departments. Writes Levin:

Probation is also well suited to pay-for-performance. Since 2005, $55 million in [Texas] state probation funding has been incentive-based.

County probation departments are eligible if they adopt progressive sanctions and pledge to reduce their technical revocations -- prison referrals that result from missing meetings, failing drug tests and other probation violations not related to a new conviction.

Progressive sanctions prior to a technical revocation include increased reporting, community service, curfews, electronic monitoring, mandatory treatment and overnight jail stays intended to remind someone on probation of what's at stake.

Participating departments have reduced their technical revocations by 16 percent, while nonparticipating departments increased technical revocations by 8 percent.

Had all departments increased revocations by 8 percent, another 2,640 probationers would have been sent back to prison at a cost of $119 million, not including the construction cost of additional prisons.

Departments receiving the funding used most of it to reduce caseloads of probationers per supervising officer from 150 to about 110.

Texas should build on the success of this initiative. Performance-based probation funding should include rewards for high rates of employment; educational and vocational degrees and certificates earned; and restitution and child support payment. It should also include penalties for new offenses based on their severity. And counties should be rewarded, not penalized, for handling high-maintenance offenders on probation.

Measuring correctional outcomes is challenging, but if the state just pays based on the number of bodies behind bars or on probation rolls, taxpayers will indeed get what they pay for: an ever-growing system that recycles more offenders than it reforms.

To be sure, Texas and Britain are different places (and not just because our state prison system is nearly three times as large as theirs, while their overall population is nearly three times as large as ours). Texas' three-year recidivism rate is half that of Britain's, and our community supervision system is many times larger, with much longer probation and parole terms.

Still it's fascinating and instructive to see that the "conservative" solutions proposed in Great Britain are essentially similar in theme and often substance to new laws passed at the Texas Legislature during a period of GOP control. These ideological and legal trends make me hopeful that, slowly but surely, our friends on the right are ceasing to view the terms "conservative" and "tuff on crime" as synonyms.

Dallas PD will implement steroid testing after David Jacobs' allegations

In the wake of allegations that deceased steroids dealer David Jacobs sold the drugs to officers at Dallas PD and four other area departments, Dallas PD had decided to implement random drug testing, the Dallas News reports, though they insist they've been planning it for some time. Will the other departments Jacobs named - Plano, Garland, Richardson and Arlington - follow suit?

I haven't seen a copy of the policy but it sounds like a good faith start to addressing the problem, and DPD deserves credit for taking this step. Still, I still wish feds or some other outside entity would take over the investigation into Jacobs business connections with Metroplex police officers.

Top Dallas public defender fired

Dallas County Commissioner John Wiley Price took some cheap shots at head public defender Brad Lollar as the latter man resigned today. According to the Dallas News, "The Public Defender's Office is not a retirement home for lawyers who don't want to work," Mr. Price said. "You can't treat it as if it's a part-time job."

Hmmmm. Price had better have the goods to back up those charges because he's running out a pretty widely respected PD chief in Brad Lollar.

Besides a general complaint that PD's don't work hard enough, Price had few other suggestions for the office except to hire Lynn Richardson as Lollar's replacement. Price had championed Richardson earlier for Lollar's post but she didn't get it. Now he's strong-armed her into the top slot.

The main reason PDs have been underused in Dallas according to prior media reports is that some judges haven't been assigning them cases as often. That's hardly evidence that they're all lazy. Some of the things Lollar has done don't show up in the statistics as far as processing cases more rapidly, including improving services for mentally ill clients and taking more cases to trial than in the past, the News reports.

One wonders if Price is scrutinizing the budget of the District Attorney as closely as the PD? It seems unlikely that his allegations are singularly true only of one side of the bar. This seems like an instance where there's a backstory that explains most of what's going on that we just don't know right now. Maybe Price is just on a crusade against lazy bureaucrats, or perhaps there's a less obvious agenda at play that I can't identify at the moment.

MORE: Dallas public defender saves county money compared to neighbors.

New Texas crime data available, but what do they capture?

Both violent and property crimes are declining nationwide, reports the Justice Department, though in Texas' city by city numbers (below) one finds a more mixed result.

I never quite know what to make of raw, aggregate reported crime stats. One's gut instinct is to tally them up to determine whether crime is "increasing" or "decreasing," but there are so many variables to consider when deciding if that's accurate. Did Dallas' crime stats decline because there is less crime, for example, because the new DA is doing a better job, or because police supervisors are under political pressure to report less crime? Such answers lie outside the confines of this report.

For that matter, how many offenses go unreported to the police? Do police comprehensively upload complaint data to the feds? (In Texas, often not.) What is the clearance rate for the crimes reported last year? Without such details, it's hard to tell what conclusions can be drawn from this data, particularly when the aggregate changes, both upward and downward, have been fairly small on the margins in recent years. In any event, I thought I'd at least share the data with y'all, FWIW:

"A door to a brick wall": CCA approves Texas lethal injection protocols without a hearing

After a last minute stay of an execution last week, the Texas Court of Criminal appeals today approved Texas' lethal injection procedures, clearing the way for Texecutions to resume. Here are the relevant opinions:

CHI, EX PARTE HELIBERTO FROM TARRANT COUNTY

DISMISSED-OPINION JUDGE HERVEY [HTML] [PDF]

CONCURRING OPINION JUDGE COCHRAN [HTML] [PDF]
(JUDGE WOMACK JOINED )

DISSENTING OPINION JUDGE PRICE [HTML] [PDF]

DISSENTING OPINION JUDGE JOHNSON [HTML] [PDF]
(JUDGE HOLCOMB JOINED )

PUBLISHED

To judge by the dissents, the court felt under pressure to approve a new method to allow executions to resume, but Judge Tom Price thought the ruling was premature, from his dissent:

No fair-minded citizen approves of the execution of an innocent man. As judges, we are only a little less appalled at the prospect of executing a man without due process of law. We should be equally hesitant to execute a man in a manner that would violate his Eighth Amendment guarantee against cruel and unusual punishment. We are expected to insist upon all ordinary process to protect against such an unpalatable result.

As the Court acknowledges, ⁽³⁹⁾ the applicant has alleged, inter alia, that the first, anesthetic drug is not adequately administered under our lethal-injection protocol. He has thus stated a claim that, if true, would seem to entitle him to relief under Baze. ⁽⁴⁰⁾ Moreover, because a challenge to the particular method of execution was not yet ripe at the time these applicants filed their initial applications for writ of habeas corpus, those claims were factually unavailable at that time and may be brought in a subsequent writ application. ⁽⁴¹⁾ When a claim in a subsequent writ application states facts which, if true, would entitle the applicant to relief, and also includes a pleading of facts sufficient to establish that the subsequent writ application is not abusive, Article 11.071 contemplates that it be returned to the convicting court where the writ issues as a matter of law, and the convicting court can proceed with whatever factual development it deems appropriate, at its discretion. ⁽⁴²⁾

Now that the Supreme Court has provided the applicable standard, we should allow the litigation to proceed in accordance with the statutory scheme. It should be easy enough to litigate whether the Texas protocol for lethal injection, as actually implemented by the Director of the Texas Department of Criminal Justice, Correctional Institutions Division, passes Eighth Amendment muster. There can be only two outcomes to such litigation, if it is allowed to proceed on the merits. Either (after adequate discovery and factual development below) our protocol (as implemented) will be deemed substantially similar to Kentucky's, and hence, constitutional, or it will be found lacking in some respect (probably involving the procedures for assuring that the first drug is adequately administered). If we find substantial similarity, that will end the litigation--in this and, presumably, every other capital writ that raises the issue, so long as the protocol is maintained and followed. If not, then the Director should know how to modify the protocol to achieve a constitutionally acceptable method of lethal injection, and the matter will be put to rest soon enough. It is only a matter of time. Still, the plurality denies the applicant a state forum to develop the issue, though his pleading is sufficient. ⁽⁴³⁾ I am at a loss to understand why.

Apparently the Court will not tolerate actual litigation of the issue if that means the death machine meanwhile must stand idle. But we cannot fix the machine while the cogs are turning. I would maintain the stays of execution in these causes and return them to their respective district courts for ordinary factual development. Because the Court does not, I am compelled to dissent. ⁽⁴⁴⁾

Though he's historically an avid death penalty supporter, one almost notes a tone of sarcasm in Judge Price's comment that the majority could not bear for the "death machine" to "stand idle."

Similarly, Judge Johnson's dissent emphasized the hasty dismissal of Chi's claims without even giving them a hearing:

Chi, Alba, and all the other cases being held for them, hang on a single issue-the constitutionality of the Texas lethal-injection protocol-that has never been subject to a hearing of any kind. Certainly the Texas protocol is similar to the Kentucky protocol in the kind of drugs administered and some of the training standards for executioners and dissimilar in other ways, such as the amount of each drug used. Remaining at issue is whether the Texas protocol has safeguards that are at least at the level of Kentucky's practices-approved by Chief Justice Roberts and excoriated by Justice Ginsberg. Due process requires that there be, in at least one case, a hearing that considers the Texas safeguards to determine whether they pass muster. Without a hearing, we cannot say whether applicant does or does not have a clear right to relief.

At this point, we cannot say whether applicant's allegations, if true, entitle him to relief. To dismiss them without a hearing of any kind by saying that his claims have no merit turns the writ of prohibition into a door to a brick wall.

That's pretty strong language - "a door to a brick wall" - Judge Johnson used to describe the majority's position!

Judge Hervey, in an opinion representing a plurality of CCA judges (4), characterized the lethal injection procedures analyzed in Baze as "materially indistinguishable from Texas' lethal-injection protocol." Judge Cochran's concurrence similarly concluded the procedures were the same based on:

a post-Baze supplemental response from the Texas Department of Criminal Justice (TDCJ) that graphically demonstrates the similarities between the Texas lethal-injection protocol and that of Kentucky which was upheld by the United States Supreme Court in Baze. ⁽⁴⁾ TDCJ's comparison is based primarily upon data in the TDCJ Execution Procedural Manual which was attached to applicant's Petition for Writ of Prohibition. ⁽⁵⁾

In other words, Judge Cochran (and Judge Womack who joined her opinion) read TDCJ's post-Baze communique to the court and decided the factual issues without the need for any sort of adversarial procedure to vet the matter. Whatever TDCJ says, goes, I guess.

So there you have it. Texas currently has 13 executions scheduled, beginning with Karl Chamberlain two days from now. FWIW, Craig Watkins' Dallas DA office has been the most aggressive in pushing for quick execution dates - 4 of the executions scheduled post-Baze are from Dallas County; no other county including Harris has more than one.

UPDATE: Ohio's high court actually held a hearing and decided their state's three-drug protocol didn't meet the new Baze standard.

The Mechanics of a Wrongful Conviction

Two recent items regarding the possible conviction of innocent people deserve Grits readers' attention:

First, see Rev. Alan Bean's essay, "The Mechanics of a Wrongful Conviction," from the Friends of Justice blog, in which he compares the recent conviction of Alvin Clay in Arkansas, a case he's been closely following, to the Tulia cases and others Alan has worked on over the last decade. An interesting if opinionated read from a man on the front lines.

Meanwhile, in a death row case that may turn out to define "the mechanics of a wrongful conviction," check out this video from KXAN-TV (via the Texas Death Penalty Blog) regarding the recent conviction of a Georgetown police officer in Williamson County and its relation to the possible actual-innocence claims of current death-row resident Rodney Reed. If Reed's innocence claims pan out, it will uncover a web of police corruption that's pretty deep, not to mention an extensive official coverup aimed at pinning the case on an innocent man.

Governor's Mansion Fire: What's your alibi?

Proving your innocence in the face of false accusations may be a lot harder than it seems. For instance, just before 2 p.m. on Sunday morning an arsonist set fire to Texas' antebellum Governor's mansion in downtown Austin. I can prove I was in New Orleans when it happened, though no one else was with me at precisely that time. If you were wrongly accused of this crime, would you have an alibi? Can you prove where you were at 2 a.m. Sunday morning? The last time I asked a similar question, 20% of Grits readers said they could not.

A corollary question: Is your alibi a family member or close personal friend? If so, investigators and a jury may disbelieve them anyway.

UPDATE: Fort Worth Star Telegram columnist Bud Kennedy interviews an arson investigator who thinks the fire may have been accidental. Another reminder that many past arson convictions have been based on flawed forensic science.

Photo via KVUE

CCA could weaken attorney-client privilege rule in place since 1856

Heads up, criminal defense lawyers!

Robert Guest over at the Dallas Criminal Defense Lawyer Blog reports brings word the Texas Court of Criminal Appeals:

is moving to abolish the special rule of criminal attorney-client privilege. This would leave defendants with a much weaker protection currently only used in civil cases.

Here is the [rule] COCA is seeking to abolish-
Texas Rule of Evidence 503(b)(2)

(2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.

The Court of Criminal Appeals has ruled (see their proposal here) that this protection will be deleted on September 1st, 2008. COCA has made this decision without any public input. The Texas Criminal Defense Lawyers Association was only notified of this decision after it was made.

This special rule has protected Texans since 1856. There is no reason to change it. This letter by Federal Public Defender Richard Anderson documents the history and case law surrounding 503(b)(2).

You Can Help
The COCA judges who made this decision are also politicians. They are elected by the public and accountable to them. Let these judges know that you do not want 503(b)(2) deleted.

Here is their contact information-
Judge Cathy Cochran, cathy.cochran@cca.courts.state.tx.us
Judge Tom Price, tom.price@cca.courts.state.tx.us
Judge Cheryl Johnson, cheryl.johnson@cca.courts.state.tx.us
Judge Larry Meyers, larry.meyers@cca.courts.state.tx.us
Judge Barbara Hervey, barbara.hervey@cca.courts.state.tx.us
Judge Charles Holcomb, charles.holcomb@cca.courts.state.tx.us

Or you may snail mail your letters to individual judges at:
Texas Court of Criminal Appeals, P.O. Box 12308, Capitol Station, Austin Texas 78711

It is bad enough that appellate judges rewrite the Constitution to destroy your rights, now they want to rewrite the rules of evidence.

Yikes! Where'd that come from?

MORE: See Houston defense attorney Mark Bennett's analysis of the proposed rule change, which to his credit he first published back in March.

Possible suicide by snitch who alleged police doping deserves outside inquiry

As the mainstream media continues to focus on whether the National Football League will investigate allegations by deceased Plano steroid dealer David Jacobs, I continue to wonder who will investigate allegations that he sold steroids to police in five Metroplex departments?

Jacobs' death was ruled a suicide, but the more I learn, the more I think his case deserves an outside investigation.

Let me be clear I have no first-hand knowledge; I can't know what happened. Perhaps it really was a murder-suicide, the denouement of a rocky and jealous relationship with his bodybuilder girlfriend Amanda Jo Earhart-Savell. But when a police department Jacobs accused of harboring steroid abusers is the same one conducting the investigation, that creates an inherent appearance of conflict that would be better served by enlisting independent investigators. I agree with Bill Baumbach from the Collin County Observer who:

hope[s] Collin County DA John Roach takes a very hard look at this case. Even if the evidence supports suicide, Rossi died before he could give testimony against law enforcement officers . An outside investigation is warranted. If Mr. Roach will not investigate, then the feds should.

I'd earlier compared Jacobs' case to a New York steroid dealer who accused police and was soon thereafter found dead from gunshot wounds to the chest and head, which was ruled a suicide. (NYPD instituted department-wide steroid testing as the result of his allegations.) It turns out David Jacobs was also shot in the abdomen and head, but the medical examiner concluded his death was a suicide, too.

In general, how likely is it that a suicide requires two shots? Certainly possible, but statistically speaking, not very. Via Steroid Nation I found this study from North Carolina that has the biggest dataset I've seen on the topic. Here's the abstract:

Suicide by firearm is a frequent mode of death and the most common mode of suicide in the United States. So typically is there but one bullet entrance would in the suicide victim, and so often are there multiple wounds with homicide that some investigators and the public are unaware or forget that the person intending suicide may discharge his gun into himself more than once. The frequency, incidence, and other characteristics of the phenomenon deserve more recognition. The data presented are from medical examiner reports and related material from 7,895 gunshot deaths, including 3,522 suicides by firearm, that occurred in North Carolina in the 7-year period 1972-1978. The 58 multishot firearm suicides represent 0.7% of all firearm deaths (one in 136) and 1.6% of forearm suicides (one in 61). Characteristics of the individual entrance wounds such as body regions involved and muzzle distance were the same as those of single shot cases. Long gun use was not rare, but 0.22 caliber handguns predominated. Other characteristics of weapon, victim, wounds, and situations are presented. Each of the cases was assessed by forensic pathologists as it was reported and was reviewed again for the study. The type of data presented is one advantage of a structured, centrally guided, statewide medical examiner system.

So .7% of gunshot deaths were two-shot suicides, but steroid dealers who accused police in New York and Plano both died that way? (A possibly probative followup study question might have been, "what percentage of two-shot suicides were people who had pending accusations against police officers regarding misconduct?")

Also, who tries to commit suicide by shooting themselves in the abdomen?

Another piece of datum makes me think there's more to investigate: the North Carolina study found most two shot deaths were with "long guns" and .22 caliber handguns. But David Jacobs supposedly couldn't do the job with a .40 caliber Glock?

Over the weekend, Tanya Eiserer at the Dallas News gave more detail about what police found ("Steroid dealer David Jacobs death ruled a suicide," June 7):

Police responded to Mr. Jacobs' home after receiving a missing-person call about midnight Wednesday from Ms. Earhart-Savell's family. The family told police they had not heard from her and thought she might be at Mr. Jacobs' house.

Police were still trying to determine who owned the gun believed to have been used in the shootings.

Authorities said they found "no sign of forced entry" and have no reason to believe anyone else was in the home at the time of their deaths. But according to the court records, they found signs of a struggle, six fired bullets and 10 bullet casings.

After the bodies were found, Plano police wearing masks over their faces were seen entering the house and taking evidence away, some in boxes. Police say they were undercover officers who need to protect their identities because of other work.

According to the court records, police seized computers, several cellphones, video equipment and other computer-related equipment, as well as more than $3,000.

One wonders exactly how many undercover Plano cops are working on steroid cases? After all, Jacobs already cut a plea deal and was no longer an investigative target. For whole groups of investigators to be hiding their identity while they're investigating the snitch who accused their colleagues of crimes simply leaves an eery and decidedly ambiguous impression. Wrote Dallas News columnist Kevin Sheridan:

Frankly, Jacobs made lots of public allegations, which was part of the problem. Besides counting athletes as customers, he said he sold to police officers in Garland, Richardson, Dallas, Arlington and Plano. He even said a Plano cop stole $4,500 from him during a raid last year.

"One of the feds told me that [Jacobs] was talking a lot more than they wanted him to," [said Don] Hooton [father of a steroid using high-school pitcher in Plano who committed suicide] ... "They weren't happy about that at all.

"The last thing they want to see is all this stuff on the evening news."

I've argued previously that the Department of Justice has little business investigating drug use by professional athletes, but DOJ has longstanding authority and responsibility to investigate allegations of police corruption. If it's true that Jacobs operated one of the largest steroid rings in America and sold his product to police officers, the feds need to step in so the public can feel confident nothing will get swept under the rug. At the end of the day, it's a lot more important to root out police officers who're trafficking in illegal steroids than to investigate a bunch of overpaid NFL jocks.

Open Thread: Travel Day(s)

I'm off to the Crescent City on a business trip involving a new consulting gig, and don't know whether or not I'll have a chance to get back on the blog over the weekend. While I'm gone, visit these fine blogs where this morning I noticed quality recent posts:

• The Back Gate
• Dallas Criminal Defense Lawyer Blog
• Simple Justice
• Sentencing Law & Policy

Also, regarding the Great Eldorado Polygamist Roundup, be sure to see this item with Gov. Perry placing his personal imprimatur on the YFZ Ranch raid, and this one praising Salt Lake Tribune reporter Brooke Adams and her team on their fine work on the story. As always, see Brooke's blog, The Plural Life, for the latest on the YFZ Ranch imbroglio.

If Texas build new jails and prisons, will more guards come?

Every time you hear some "tuff on crime" Texas pol supporting jail and prison building, the first question to ask them is "Where are you going to find the guards?"

The Texas prison system is nearly 4,000 guards understaffed statewide, and federal prisons, local jails and immigration detention facilities all have similar problems. The Texas Department of Criminal Justice already had to close a wing at one unit (in Dalhart) and reorganize another because they can't hire enough staff.

Now Mike Ward at the Austin Statesman reports on another prison wing closing in Fort Stockton for the same reason ("State closes part of W. Texas prison because of guard shortage," June 5):

Amid warnings that Texas' chronic shortage of prison guards is compromising security and public safety, officials said Wednesday that they are closing part of a remote West Texas prison because they don't have enough guards to properly staff it.

It was the third such move in recent months and signals that the guard shortage is not improving significantly, despite recent pay incentives for new hires that have reduced the guard vacancy rate slightly.

"It's the greatest challenge we currently face," Brad Livingston, executive director of the Department of Criminal Justice, told a joint Senate-House hearing Wednesday.

At the hearing, prison officials said they are closing a 334-bed wing of the 1,375-bed Lynaugh Unit in Fort Stockton that has been operating nearly 40 percent short of staff.

Testimony during the hearing indicated that large amounts of contraband — cell phones, illegal drugs and tobacco — are being brought into state prisons by guards who are being bribed by convicts. A cell phone can bring $400.

"For seasoned correctional officers who take home just $1,900 a month, who are being overworked in an increasingly dangerous environment and having trouble making ends meet, the temptation is great," said state Sen. John Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee. "We don't have enough correctional officers to properly search the staff coming on to the units and, if we did, I'm told we might lose as much as 10 percent of our staffing."

The problem runs much deeper, he said, because the agency is hiring guards with questionable qualifications.

"We'll take almost anyone who signs up," he said.

Add to that the remote location of many state prisons, the lack of housing and the low pay, "and you see the dangerous situation we're in," said Whitmire, who has led the oversight committee for well over a decade. "The lack of staff means more inmates are locked in their cells more often, without programs, without recreation, without treatment."

Meanwhile, Fort Bend County finds itself in a familiar position. Pols there convinced voters to approve a jail expansion, but county commissioners don't provide adequate funds to staff the ones they've got. Reported the Fort Bend Herald ("Jobs? County needs jailers," June 4), "No less than 110 people will be needed to staff the new jail, and the sheriff's office is already short 48 employees, said Sheriff Milton Wright." In order to solve the understaffing crisis, Fort Bend County plans to use uncertified jailers, the Herald reports:

In Texas, individuals must be 21 years old to receive peace officer certification, and therefore work patrol and supervisory law enforcement jobs. However, Wright said not all jailers need to be state certified, and he said the prospect of being a civilian jailer could have allure for young individuals in the community.

“But they've got to have a mature personality. They can work here in the jail and get into police academy later. We're going to really be going after 18-year-olds in the community,” he said. ...

Wright said he believes the department will meet its hiring goals but said his office will likely face incorrect assumptions about the job of jailer among potential recruits.

“It's still perceived as being a dangerous occupation, but it's really not,” he said.

The Sheriff has to downplay the dangers, I'm sure, to justify the low pay he's offering. But shortchanging money for jail staff and training is a penny wise, pound foolish decision that brings with it many obvious downsides.

And anyway, don't you want actual adults working in the jail, somebody with a few more years under their belt? Hiring 18 year olds who've not received state-required certification might be a short-term crisis-management solution, but it seems like an ill-fated plan for staffing an entire new jail facility!

TYC ending practice of long-term isolation as "aggression management"

The Texas Youth Commission will end its "aggression management" program in which violent youth were kept in individual cells for months on end, a welcome move away from the use of adult corrections techniques imposed by the agency's last conservator.

TYC eliminated the program because extensive use of isolation did not reflect national best practices, said spokesman Jim Hurley, and also to alleviate staffing shortages at the Mart 1 unit. According to the Waco Tribune Herald ("TYC violent youth program scrapped," June 6), "The program was housed at one of the two TYC units in Mart, with youths being sent there from juvenile prisons all over the state, Hurley said. It had the capacity for 24 youths and required 40 staff members." Reported the Tribune Herald:

As TYC has continued to examine its practices in light of an abuse scandal that rocked the agency last year, it has the agency last year, it has determined the program does not reflect national best practices in dealing with youth offenders, Hurley said. So the state decided to discontinue it.

To fill the gap, TYC is revamping its “behavior management program, which is conducted at all TYC facilities, Hurley said. It will be called Redirect and will revolve around a specialized treatment curriculum designed to manage aggressive youths.

The revamped program will focus on getting inmates to recognize what triggers their violent behavior so they can stop it, Hurley said. He added that it will operate on a privilege system, rather than a punitive one.

Each facility will continue to have so-called security cells where violent youths can be isolated if necessary, Hurley said. However, the cells will be used only for short periods of time.

“It won’t be sticking a kid in there for months on end,” he said.

The 40 staff members who worked for the discontinued program will be transferred to other areas of Unit I at Mart, Hurley said. Since the facility has a shortage of juvenile corrections officers, the shift should ease understaffing there, he said.

Using local police for immigration enforcement creates sticky, expensive problems for counties

With several Texas jurisdictions hoping to empower local police to enforce immigration laws, I was interested to see this item from Laura Nicholes at the Texas Association of Counties ("Juveniles and immigration reform: What is the counties' role?") detailing problems that result when locals wind up with custody of minors as a result of immigration actions. She writes:

Recently in rural north Texas, a Department of Public Safety traffic stop revealed eleven suspected illegal aliens – ten adults and one juvenile - and resulted in a call to Immigration and Customs Enforcement (ICE). Since there was a minor on scene, the judicial district’s juvenile probation officer was also contacted. ICE detained the ten adults but refused to accept custody and transport the 16-year-old to their facilities with the rest of the group. ICE officers told the local juvenile probation officer that according to a new federal policy they no longer accepted juveniles into their custody. With no criminal charges alleged against the juvenile (being in the U.S. without documentation is considered an administrative violation) the probation officer had no jurisdiction over the youth so he called Child Protective Services to let them know he needed help with placement. CPS refused to take the youth into their care, saying it was an ICE responsibility. Approaching the time limit for detaining a juvenile without cause, the officer exhausted all local resources and finally contacted the Mexican Consulate in Dallas for guidance. In the end, the county absorbed the tab for the expenses incurred for the youth’s meals, lodging and bus ticket to the Mexican Consulate, as well as the juvenile officer’s time away from his routine duties and case management.

The incident prompted a county judge to ask: what does a local official or law enforcement officer do when nobody is willing to accept responsibility for a juvenile suspected of being in this country illegally? And with the strengthening of immigration reform, will more situations like this occur and place unfunded mandates on local governments?

When asked in a phone conversation if ICE accepts juveniles into their custody, Mr. Reginald Sakamoto, Acting Chief of ICE’s Juvenile, Family and Residential Unit located in Washington, D.C., suggested local law enforcement “follow the directions provided in the Homeland Security Act of 2002 as it applies to unaccompanied alien children.” He said, “Typically, individuals under the age of 18 are processed the same as adults but are treated differently. Each situation involving a juvenile [with questionable citizenship] is handled on a case-by case basis” because there are many variables to consider when determining citizenship and providing for the care and placement of a minor who may or may not have parents or eligible guardians in this country.

That's a lot of resources eaten up as a result of a single traffic stop where no criminal charges will be filed. Such incidents wouldn't have to play out too many times per month to completely overwhelm most departments' ability to handle the volume, particularly for juvenile systems with no place to house non-criminal kids.

TAC couldn't confirm for sure WHAT policy, if any, forbade ICE from taking the juvenile described in the story into custody, but in any event, the feds' said it wasn't the locals' role:

Several contacts with ICE representatives failed to yield confirmation of a new policy (as conveyed to a juvenile officer by an ICE field officer) prohibiting ICE from accepting juveniles into their custody for questioning. However, the Assistant Director of ICE’s San Antonio Field Office, Agent Adrian Ramirez, said “It’s unfortunate that counties are even worrying about this procedure because it’s a federal responsibility.”

RELATED: From the New York Times, "States take new tack on immigration," June 9.

The Gift

Just a quibble over definitions, perhaps, but is it really "using the restroom" when one defecates in the back seat of a police car? And while I've no doubt such behavior should be punished, it also strikes me as funny that Athens police charged the fellow under a law penalizing those who create "a noxious odor by chemical means."

“He didn’t want to go to jail,” declared Athens PD's Captain Obvious.

Informant who accused Metroplex police of steroid use turns up dead

I normally try not to indulge too readily in conspiracy theories, but a pair of killings this year of informants who ratted out steroid using cops, taken together, are beginning to give me the creeps, not to mention make me wonder when Congress will investigate steroid use in law enforcement as aggressively as they did in baseball.

Most recently, an informant in Plano who threatened to out police officers in five Metroplex departments was found shot to death in his home this morning, making him the second steroid dealer/informant killed this year before he could testify against law enforcement. Reported Jason Trahan at the Dallas News ("Convicted steroid dealer David Jacobs found dead in Plano home," June 5)

Convicted steroids dealer David Jacobs, who recently agreed to tell the NFL which football players received banned substances he manufactured, was found dead in his Plano home this morning.

The body of a woman identified as Amanda Jo Earhart-Savell, 30, and a gun were also found at the home.

About 11:30 a.m., four men in ski masks and raid jackets with “police” on the back — indicating they may be undercover narcotics officers — arrived at the busy scene and entered the home with a cart to carry documents.

The Dallas Morning News spoke to Mr. Jacobs frequently and exchanged e-mails with him as recently as this weekend. He was interested in getting on with his life after accepting a plea deal for three years of probation on charges related to his steroids trafficking.

Mr. Jacobs said he wanted to rebuild his nutritional supplement business, but he was having trouble getting his old client base to work with him. He also was having financial problems, but the former Marine seemed to be in good spirits.

Jacobs claimed to have sold steroids to officers from the Garland, Richardson, Dallas, Arlington, and Plano police departments.

A similar case involving NYPD in January caught my eye, and made me wonder just how deep the rabbit hole goes regarding steroid use in law enforcement. A pharmacist set to testify against NYPD police was found shot to death. As I pointed out previously, "his case was ruled a suicide, despite 'gunshot wounds to the chest and head.'"

Reacting to this news, I'd wondered "Have you ever heard of a suicide with two shots to the chest and the head? If the guy accusing Roger Clemens turned up dead under these circumstances, do you think there'd be a bigger media hoopla than the one-day story in passing that constituted coverage of this pharmacist's death?"

Now we've seen informants accusing police of steroid use at two of the largest police departments in the country turn up shot to death within months of one another under suspicious circumstances before they could testify.

Maybe it's a coincidence. Maybe both cases were suicides, or perhaps one or both were killed by non-police customers or suppliers. I'm not so much speculating about likelihoods as acknowledging a dark, unhappy, but seemingly inescapable hunch. I'd certainly feel better if the FBI or somebody outside Plano PD took over the task of investigating David Jacob's' death.

See prior related Grits posts:

• Plano steroid dealer said he sold to police in five Metroplex cities
• NYPD requires steroid testing of officers in wake of scandal
• Feds should check names of steroid customers with state law enforcement registries
• 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
  
• Readers back steroid testing for cops and high school athletes

SCOTUS: Just finding hidden cash not enough to justify asset seizure

It's a truism in Texas drug enforcement that dope runs north on the highways while money and guns flow south, so much so when the Department of Public Safety took over Texas' now-defunct drug task force system, they discovered some agencies were only working southbound lanes, ignoring the drug supply in hopes of making a big asset forfeiture score.

In case after case, courts have deemed simply finding large amounts of hidden, unexplained cash sufficient to justify state seizure, often when no associated crime is prosecuted. That should change, though, after the US Supreme Court just ruled in a Texas case this week that more investigation is required to justify asset seizures. Reports the Christian Science Monitor ("Harder task to nail money launderers," June 3):

Ruling against federal prosecutors in two cases on Monday, the high court reversed the conviction of a man caught with cash hidden in his car in Texas near the Mexican border, and the court refused to reinstate a money-laundering conviction in a case involving an illegal gambling operation in Indiana.

Both decisions hold potentially important implications for crime fighting. In both cases the justices rejected the Justice Department's expansive reading of the federal money-laundering statutes.

In the hidden cash case, the court ruled 9 to 0 that prosecutors had failed to prove their case when Humberto Fidel Regalado Cuellar was convicted of money laundering after authorities discovered $81,000 in a secret compartment in his car.

An appeals court upheld the conviction, but the Supreme Court on Monday reversed it.

Writing for the court, Justice Clarence Thomas said: "We agree with the petitioner that the government must demonstrate that the defendant did more than merely hide the money during its transport.

Uh, Clarence Thomas writing for the defense? Wow! That's the kind of ruling that makes you glad federal judges have lifetime appointments. Anyone worried about their political future would never make that determination, but SCOTUS supported it 9-0. (See a fuller discussion of the ruling at SCOTUSblog.)

The other ruling mentioned in the article might also have significant ripple effects if support for the majority weren't so shaky and disputed. SCOTUS ruled much more narrowly (4-1-4, with JP Stevens, the one, siding with Scalia's faction) that a law allowing seizures of "proceeds" from illegal gambling applied only to profits, but not payouts for winning bets or employee wages. Stevens and Alito cannot agree if the interpretation applies beyond gambling cases.

That's a good ruling in my view; it reduces incentives significantly for speculative forfeiture actions, making it more likely forfeiture decisions will be based on justice interests, not profit motives.

UPDATE: Scott Greenfield at Simple Justice says I misunderstood the implications of the ruling; they can still seize the cash, they just can't charge a defendant with money laundering for hiding it, he said. Check out his post.

Hervey on innocence proposals: "We're past meet and discuss"

After speaking this afternoon with Texas Court of Criminal Appeals Judge Barbara Hervey about the CCA's new Criminal Justice Integrity Unit (CJIU), described yesterday on Grits here, I think there's room to hope the new body will spearhead an important range of modest reforms. (I appreciated her personally calling me back about it.)

This new "unit" definitely represents a shift in the terms of debate among Texas' top judicial circles. The CJIU could be a great thing so long as state leaders don't acquiesce in the idea that the court's new reform body will solve all the problems related to convicting innocent people.

On some matters under the purview of the court, Judge Hervey said she's confident change can occur rather quickly. "We're past meet and discuss," she told me, "we want some of them accomplished."

For a range of limited reforms, this may be a good vehicle to do that. But if every reform Hervey envisions is enacted to the fullest extent she describes, the discussion about preventing wrongful convictions will still be far from over.

Judge Hervey predicted legislation to increase compensation for wrongful convictions would pass next year, as well as legislation to improve crime lab reliability and promoting "education" on eyewitness ID best practices.

Hervey also foresees implementing writ training for attorneys and judges. The CCA processes 6-8,000 post conviction writs per year, she said, and 50% are remanded to the original judge for further consideration, creating a great deal of unnecessary confusion and lag time.. "Judges need to better understand how to handle writs," said Hervey. "Some jurisdiction have writ staff, some don't." (The CCA already administers millions in training funds and needs no additional authority to implement that plan.)

She admitted, though, that her vision of writ training wouldn't do anything to make it easier for innocent defendants with no DNA evidence in their case to get their writs heard. About 75% of post-conviction writs are pro se, Hervey said. She thinks forms the court has developed helped the problem somewhat, but stopped short of agreeing writ writers in prison should have legal assistance. "I don't know if they get help or not," she said, but if they claim actual innocence, the CCA sends them a letter telling them to contact one of the law-school based Innocence Project clinics. If their innocence claims can be corroborated by DNA, she said, writs claiming actual innocence can be heard by the CCA even if prior writs were denied multiple times.

I'm glad the courts' new CJIU will be contemplating these issues, as long as their efforts are not portrayed as the end-all be-all of possible changes. From Hervey's description, the CJIU sounds like some sort of hybrid activist advisory board that will mostly limit itself to endorsing legislation and executing projects within the CCA's administrative authority. She didn't dispute my characterization of the group as "just another blue ribbon panel," but responded, "it's a pretty good group, though, isn't it?" I allowed that it is.

There are limits, though, to how far the CJIU can be expected to take innocence reforms. On eyewitness ID best practices, for example - particularly regarding "double-blind" procedures or showing photos sequentially instead of in a group - Hervey said the group would at most play an educational role. They plan to bring NY Innocence Project chief Barry Scheck to Texas to give presentations to key law enforcement leaders, and will encourage "best practices," she said, without requiring them.

Asked whether the CCA itself might ever require evidence-based lineup procedures, Hervey said that would be difficult because small agencies may not have sufficient resources to implement reforms. (She predicted the first time the issue comes before the court will probably be to decide whether an expert on flaws in eyewitness testimony can be used to debunk a witness.)

The same goes for requiring interrogations to be recorded. While it may be a good idea and the CJIU could recommend it, she said, disparate resources among agencies make it impossible to require them to all buy recording equipment. (As an aside, in 2001 the Lege authorized and voters approved $18 million in bonds to purchase dashboard cameras for local agencies, so perhaps the same could be done with recording equipment for the interrogation room.)

These recommendations represent a dramatic shift in the political center on these topics, but they aren't enough by themselves to prevent wrongful convictions in the future or identify those from the past. Simply recommending critical reforms but leaving them discretionary for police seems problematic. Texas has 2,500+ separate law enforcement agencies registered with the state licensing agency (TCLEOSE) and there's no way to ensure they all do the right thing without enshrining stronger requirements into law.

UPDATE: See related Dallas News coverage. And from Unfair Park: So the state will have an integrity unit, which will do what exactly?

RELATED: The Dallas News says the new CCA unit should not forestall additional legislative reforms.

Smith County appears headed for jail-bond rejection hat trick

Somehow Smith County Judge Joel Baker (the head of the commissioners court, not a magistrate) thinks that two overwhelming defeats for local jail bonds means the public really supports a "scaled-down" jail, but they won't support non-carceral strategies to reduce overcrowding.

Why, one wonders? Did you ever consider, Judge Baker, that when voters twice rejected jail bonds by overwhelming margins that they might have wanted you to go in a different direction?

Repeatedly Baker and Co. have rejected that chance in favor of a quixotic jail building quest, and they did so again this week. Tyler District Judge Cynthia Kent on Monday argued in vain for the commissioners court to avoid a jail-bond rejection hat trick. Reported the Tyler Morning Telegraph ("Smith County commissioners rule out new court facilities," June 3):

Judge Kent attended Monday’s Commissioners Court meeting to make the case that new courts facilities would do more to relieve jail overcrowding than new jail space.

“We cannot jail-build our way out of this problem,” she said. “By the time a new jail opens, it will be overcrowded. Building more jail space just increases the room to backlog cases.”

But the county could “case-dispose our way out of jail overcrowding,” she said.

“Smith County taxpayers would fare better spending money to build courts,” Judge Kent said.

She added that there could be an additional advantage to new, better courts facilities: more respect for the law.

“A new courts facility can be designed to be dignified and stately to enhance society’s adherence to rule of law,” she said.

“I would love to see a new courts building,” responded County Judge Joel Baker. “But I don’t believe that in the state of our current economy that people will support it. I believe people see the jail is the critical need.”

Commissioner Bill McGinnis also agreed with Judge Kent, but said the court must remain realistic about what voters will approve.

“I think you proved your point that courts are critical to keeping the jail population down, with your successful AIC (Alternative Incarceration Center jail diversion) program,” McGinnis said. “But we need a lot of things in this county, and with $4-a-gallon gas, I’m not sure what the public will support.”

Commissioner JoAnn Hampton said commissioners can’t get sidetracked.

“It’s important we stay focused,” she said. “We’re working on a long-range plan, something no other court has done before us. But we need to stay focused on building a new jail.”

You've gotta wonder why commissioners remain fixated on new jail building instead of seeking out other means of solving their problems in the face of not one but two failed jail plebiscites? What do voters have to do to send a message to the Smith County Commissioners Court they don't want new jail bonds?

Judge Kent was the most prominent local official who opposed more jail building, so I'm sure to some extent the jail building faction on the court (which appears to include all five members!) views her as "the opposition." But she also is the only Tylerite who's identified small-government solutions that save money instead of cost the taxpayers.

All along Judge Kent has been more in tune with the desires of the local electorate, but jail-fixated commissioners won't listen to her. (Several of her most significant proposals to reduce jail overcrowding were shelved when first proposed.) Will it to take a third walloping at the polls - or perhaps the ouster of sitting commissioners - to convince officials that voters meant what they said when they turned down jail bonds in 2006 and 2007?

RELATED: See also, Cynthia Kent: Smith County needs more court space, not a bigger jail, and here's her letter to county officials arguing the county would get more bang for the buck by expanding courts than jail building.

UPDATE: I forwarded this post to Judge Kent who replied thusly:

Date: June 4, 2008

TO: Scott Henson
FROM: Judge Kent
RE: Smith County Jail Overcrowding

Dear Mr. Henson,

Thank you, again, for your continued interest in this issue. The County Judge and County Commissioners were very polite to me on Monday. However, they made it abundantly clear that they were unanimous in their decision to build a "scaled down" jail, build a new sheriff's office and other administrative offices but are NOT interested in more court facilities. They indicated, but did not say, that if a new court was created that it will be crammed into the old courthouse. This courthouse was built in 1954 for two courts and now houses seven courts. Perhaps in the future it will house eight or nine courts and become even more unsafe for the public, jurors, witnesses, defendants, attorneys, judges, court staff, and court observers.

Insanity has been defined as "continuing to do the same thing and expecting different results." Smith County has ignored the needs of the justice system, judges, courts, and citizens and has since 1984 generally addressed jail overcrowding by building more jail bed space. I predict this new jail construction plan will cost millions of dollars, if approved by the voters, and once constructed the new jail will be overcrowded the first day it is opened. Sounds crazy to me.

Sincerely,
Judge Cynthia Stevens Kent

Another Tylerite who did not want their name used informed me that:

the situation is even worse than it looks. The reason is that commissioners are planning on a November bond election. But so is the Tyler Independent School District. If the county asks for, say, $60 million, on the same ballot on which the schools ask for $130 to $200 million, what are the chances of a yes/yes outcome? And if voters pick one of the two, which will prevail: schoolkids or inmates?

To judge by the last two jail vote outcomes in Tyler, it's pretty easy to guess the answer that last question.

Houston judges responsible for massive jail overcrowding tab

The Harris County Commissioners Court has just one group to blame for their budget busting jail overcrowding woes: Local district judges who overuse pretrial detention in order to funnel money to bail bondsmen or help the DA's office extract guilty pleas.

Proponents of building a new jail in Harris County like to point out that nearly 20% of Harris County's approximately 11,730 jail inmates either sleep on "transitional" cots on the floor or in leased space in Louisiana.

However a big portion of those extra inmates don't really need to be there, and the tab (in jail costs) for Houston judges' insistence on jailing them is rising. The Harris commissioners court this week approved a $15 million contract to move another 1,000 Houston inmates to the Bayou State, reported the Houston Chronicle ("Harris County rejects leasing Galveston jail, June 4"):

the Commissioners Court on Tuesday approved one-year contracts with three Louisiana parishes to house up to 1,000 inmates at a cost of up to $15 million. The county already pays a private facility in northeast Louisiana to hold up to 730 prisoners. ...

County leaders will discuss options for permanently easing jail overcrowding at a meeting on capital improvement projects later this month and at its mid-year budget review in September, Budget Officer Dick Raycraft said. ...

As of Tuesday, about 11,000 inmates were being held in Harris County Jail facilities. The jail is certified to hold 9,400 inmates, but the county has the state's permission to temporarily hold 2,000 more on "variance beds," nonstandard metal frame bunks on the floor.

It's interesting to me that the next private prison contract will house 1,000 inmates. That's nearly exactly the number of first offender drug defendants incarcerated in Harris County who judges ordered into county jail as a condition of probation. Five years ago the Legislature changed state jail felony sentences so that that drug defendants convicted of possessing less than a gram of a controlled substance (besides pot) would receive probation and treatment instead of prison term. In Harris County, judges have used their discretion to send those defendants to county jail for up to six months as a condition of their probation.

According to the Texas Commission on Jail Standards (pdf), 1,102 state jail felons were sentenced to county jail terms as a probation condition as of May 1 - more than the number of new private beds for which the county just contracted. In other words, that extra thousand beds would not be needed if it weren't for discretionary use of the jail by Harris judges, who're thumbing their noses at the Legislature's treatment priorities.

The other big source of Harris jail overcrowding can also be laid at the feet of district judges. Statewide, according to Dr. Tony Fabelo, overall jail population increased 18.6% between 2000-2007, while the number of pretrial detainees increased 49.2% over the same period. Harris County led the state's largest counties with the biggest increase both in raw numbers and by percentage.

The Houston Chronicle reported in April that use of personal bonds in lieu of bail continues to decline in recent years despite the jail overcrowding problem. In Harris County, use of personal bonds for felony offenses declined more than 94% between 1994 and 2004.

Meanwhile, now-retired DA Chuck Rosenthal refused to allow police to use new authority created by the Legislature to give citations instead of arresting for certain low-level misdemeanors, a measure aimed at reducing jail overcrowding and keeping more cops on the beat. Every unnecessary arrest for such offenses amounts to increased jail costs that could have been avoided.

When local judges and the DA aren't using tools available to them to stop overcrowding without jeopardizing public safety, taxpayers have no one but their elected officials to blame for all the extra costs. If those elected officials won't fix the problem, voters will get a chance in November at the ballot box to find new people who will.

MORE: From Texas Prison Bidness.

Dallas public defender office faces possible cuts thanks to underuse by judges

In the modern era, politicians must begin to choose between two historic mantras: "Tuff on crime" vs. "No new taxes." In Dallas this week, county commissioners announced a "no new taxes" stand that threatens to run head on into successful efforts to reduce overcrowding at the jail.

With more than 6,000 inmates, the Dallas County Jail houses more people than the prison systems in a dozen states, so you don't really get to operate it on the cheap, but you wouldn't know it to read this article from the Dallas News ("Dallas County Commissioners pledge no tax increases amid budget deficit," June 4), where Kevin Krause reported that the county may slash the public defender budget to cut costs:

Some ideas discussed Tuesday include self-imposed hiring freezes and cashing unclaimed tax refunds. The public defender’s office was at the center of proposed cuts. Generally, using public defenders is cheaper than paying court-appointed private defense lawyers, according to county statistics.

Many of the county and district judges have increased their use of public defenders in recent years, but some judges are not assigning enough cases to them, county officials said. As a result, costs per case are increasing.

If the judges continue not sufficiently using their public defenders, the positions will be cut, commissioners said.

Some judges have public defenders who cost more than court-appointed lawyers.

The public defender’s separate appeals division that began operating in 2007 at a cost of $629,675 annually appears headed for the chopping block due to lack of use by district judges. It was supposed to save money, but costs associated with that division increased 50 percent last year, county records show.

Part of the problem, officials said, was that the 2006 elections swept into office a new slate of criminal court judges who weren’t as aware of using public defenders for certain cases as a cost savings.

Commissioners asked Chief Public Defender Brad Lollar why his misdemeanor attorneys weren’t handling more of the easier cases. Mr. Lollar said quality of representation is more important to him than costs and it’s difficult to know which cases will end up going to trial and which ones will end in a plea bargain.

Slashing the public defender budget would be penny wise and pound foolish. A much better approach would simply be to convince local judges to use the agency more. Why appoint private counsel when the county already pays lawyers to handle the cases? What's more, the appointment process creates delays in the system while representation by a public defender can help process cases more quickly, reducing unnecessary (and expensive) jail time.

Dallas operates a hybrid public defender system that also relies partially on court appointed lawyers. You have to wonder what incentives Dallas judges act on when they fail to use the public defender office? Is the answer, as Krause wrote, simply that new judges elected in 2006 were unaware of the PD office, or is there some darker political influence? A good followup to Krause's story would be to figure out which attorneys are getting the most appointments, then cross reference their names to judges' campaign contributors. (Ditto for the county commissioners court.)

The Dallas jail only recently began to pass state inspections, and the Sheriff can barely keep it staffed adequately. Any new hitch that boosts the jail population - like extra delays caused by appointing counsel instead of using a PD - could bump up expenses far beyond the small savings Dallas might achieve by cutting PD jobs.

Why do readers think new Democratic judges in Dallas aren't using the public defender office as much as their GOP predecessors? Based purely on stereotypes, one might assume Democrats wo