Tuesday, September 30, 2008
Balko interviews DEA House of Death whistleblower
Since I've been back on the topic of snitching recently, I should mention that Radley Balko did an interview with the DEA whistleblower in the infamous House of Death case in which El Paso-based "federal agents had allowed a paid government informant to participate in a dozen brutal murders [across the river in Juarez] — all but the first of which could have been prevented." Balko gives a great backgrounder and taste of recent developments in his piece at Reason Online.
TYC deprioritized abuse allegations while media frenzy raged
The Texas Youth Commission Ombudsman's first ever report to the state's political leadership (pdf) of “particularly serious or flagrant” problems at the agency alleged that TYC had closed files on hundreds of allegations of staff-on-youth abuse without proper investigation. I've finally had a chance to look through the relevant documents, so here's my take what we've learned from this new report, at least in broad strokes:
The story begins in June 2007, when Governor Perry's "fixer" Jay Kimbrough left the TYC conservator's post for a cushier job at Texas A&M, and former TDCJ #2 man Ed Owens took over in his stead. At the time, I marveled that Governor Perry "appointed a man to run the agency for whom the state [in 2006] paid to settle allegations in a civil suit that he (and others) ignored sexual harassment complaints from subordinates at his old employer, the Texas Department of Criminal Justice."
By the time Owens ascended from interim executive director to conservator in June 2007, TYC and other agencies had established widely publicized hotlines to gather complaints of abuse, past and present, some of which turned out to be credible and spawned a flurry of mostly negative media attention about the agency throughout much of the year. Confounding the problem was a great deal of confusion and overstatement of aggregate data caused by uncoordinated systems that double-counted cases and made it difficult to track them internally.
It was at just this moment in July 2007, we learn in the Ombudsman's memo, that the Youth Rights Division was reorganized and "the number of Youth Care Investigators dropped from 21 to 8; a 62% decrease." Indeed, "two facilities did not have a Youth Care Investigator assigned at all."
So to summarize: The Governor brought in Ed Owens from TDCJ - a man for whom the state had previously paid a civil settlement over allegations he covered up sexual misconduct by a subordinate - who proceeded to slash the number of abuse investigators by 2/3 at a time when the volume of complaints was higher than ever. Though the Ombudsman's timeline is careful not to name names of individual decisionmakers, that sequence of events was the most astonishing revelation to me in the entire document.
However, the memo also raised additional, significant legal concerns. In an addendum to the original report, Assistant Ombudsman Kim Bennink wrote in an addendum (pdf) that "TYC is not in compliance at this time with the Evins [settlement] agreement" with the US Department of Justice because of the agency's inability/failure to document and track incidents of misconduct.
Bennink also raised "serious concerns about the agency's compliance with the Prison Rape Elimination Act of 2003 (PERA given the apparent status of the AMI system." In PREA, Congress asserted under the Act's findings that "The Supreme Court ruled that the deliberate indifference to the substantial risk of sexual assault violates prisoners rights unde rthe Cruel and Unusual Punishment Clause of the Eigth Amendment." I'm not sure whether slashing the number of investigators at a time when complaints were pouring in constitutes "deliberate indifference," but it's sure headed in that direction.
The good news is that many of these problems can and will be fixed going forward, though every delay risks the statute of limitations running out regarding some of the older cases. More than 500 cases will be revisited now by the Office of Inspector General, so ultimately the OIO report has identified - and the agency has agreed to implement - a way for TYC to work itself out of the dilemma created by lapsed investigations.
From a global perspective, I tend to agree with House Corrections Chairman Jerry Madden who told me last week that while he thought the Ombudsman's findings were significant, the situation now seemed to be under control. He considered this not nearly as critical as the special education shortcomings identified in a comprehensive OIO analysis released this summer, and on the whole I'd have to agree.
The decision to slash the number of investigators while the number of complaints was booming was made by specific agency leaders who are now gone. There's not much left to do in that regard but pick up the pieces - one more unhappy task awaiting the new Executive Director.
Here are the full, related materials from the OIO:
The story begins in June 2007, when Governor Perry's "fixer" Jay Kimbrough left the TYC conservator's post for a cushier job at Texas A&M, and former TDCJ #2 man Ed Owens took over in his stead. At the time, I marveled that Governor Perry "appointed a man to run the agency for whom the state [in 2006] paid to settle allegations in a civil suit that he (and others) ignored sexual harassment complaints from subordinates at his old employer, the Texas Department of Criminal Justice."
By the time Owens ascended from interim executive director to conservator in June 2007, TYC and other agencies had established widely publicized hotlines to gather complaints of abuse, past and present, some of which turned out to be credible and spawned a flurry of mostly negative media attention about the agency throughout much of the year. Confounding the problem was a great deal of confusion and overstatement of aggregate data caused by uncoordinated systems that double-counted cases and made it difficult to track them internally.
It was at just this moment in July 2007, we learn in the Ombudsman's memo, that the Youth Rights Division was reorganized and "the number of Youth Care Investigators dropped from 21 to 8; a 62% decrease." Indeed, "two facilities did not have a Youth Care Investigator assigned at all."
So to summarize: The Governor brought in Ed Owens from TDCJ - a man for whom the state had previously paid a civil settlement over allegations he covered up sexual misconduct by a subordinate - who proceeded to slash the number of abuse investigators by 2/3 at a time when the volume of complaints was higher than ever. Though the Ombudsman's timeline is careful not to name names of individual decisionmakers, that sequence of events was the most astonishing revelation to me in the entire document.
However, the memo also raised additional, significant legal concerns. In an addendum to the original report, Assistant Ombudsman Kim Bennink wrote in an addendum (pdf) that "TYC is not in compliance at this time with the Evins [settlement] agreement" with the US Department of Justice because of the agency's inability/failure to document and track incidents of misconduct.
Bennink also raised "serious concerns about the agency's compliance with the Prison Rape Elimination Act of 2003 (PERA given the apparent status of the AMI system." In PREA, Congress asserted under the Act's findings that "The Supreme Court ruled that the deliberate indifference to the substantial risk of sexual assault violates prisoners rights unde rthe Cruel and Unusual Punishment Clause of the Eigth Amendment." I'm not sure whether slashing the number of investigators at a time when complaints were pouring in constitutes "deliberate indifference," but it's sure headed in that direction.
The good news is that many of these problems can and will be fixed going forward, though every delay risks the statute of limitations running out regarding some of the older cases. More than 500 cases will be revisited now by the Office of Inspector General, so ultimately the OIO report has identified - and the agency has agreed to implement - a way for TYC to work itself out of the dilemma created by lapsed investigations.
From a global perspective, I tend to agree with House Corrections Chairman Jerry Madden who told me last week that while he thought the Ombudsman's findings were significant, the situation now seemed to be under control. He considered this not nearly as critical as the special education shortcomings identified in a comprehensive OIO analysis released this summer, and on the whole I'd have to agree.
The decision to slash the number of investigators while the number of complaints was booming was made by specific agency leaders who are now gone. There's not much left to do in that regard but pick up the pieces - one more unhappy task awaiting the new Executive Director.
Here are the full, related materials from the OIO:
Why owning a 3-year old Kia may mean indigent defendants can't get a lawyer in Collin County
I've wondered before what the hell is the matter with Collin County justice and this latest report does little to boost my confidence. Now it turns out if you own a car or any other non-liquid asset worth more than $2,500 in Collin County, judges don't consider you indigent for purposes of having an attorney appointed in a criminal case! According to the McKinney Courier Gazette ("Determining the right to an attorney," Sept. 30):
There was another reference in the report to a Texas example, Midland County, which requires screeners to include spousal income and assets when calculating a defendants' indigency. I have no idea if that's typical elsewhere in Texas, but the Brennan Center found it remarkable.
A new report compiled and published earlier this month by the Brennan Center for Justice at the New York University School of Law mentions Collin County as an example of a court system that “explicitly require screeners to view the non-liquid assets of potential clients as available to pay for counsel” citing a financial consideration in the county’s fair defense plan for felony cases that defendants with assets of $2,500 or higher are not considered indigentBill Baumbach at the Collin County Observer adds:
For good measure, here's a link to the report from the Brennan Center, titled "Eligible for Justice," for anyone interested.From what I've seen, too many defendants are in court without an attorney, and too many are forced to plea bargain either without an lawyer or because they can't afford one.
The criteria for claiming indigency are entirely too severe. Owning a 3 year old Kia can keep you from getting a court appointed lawyer. Prisoners are handed long intimidating forms, and I've heard stories that they've been told that if one thing is untrue, they will be prosecuted for perjury.
See Collin County has cut spending on legal defense for the poor - by Ed Housewright of the DMN, Jan. 27, 2008
Also see Collin cuts court costs, but at what price? by Ed Housewright of the DMN, Aug.4, 2007
There was another reference in the report to a Texas example, Midland County, which requires screeners to include spousal income and assets when calculating a defendants' indigency. I have no idea if that's typical elsewhere in Texas, but the Brennan Center found it remarkable.
Federal coercion to implement Adam Walsh Act doesn't justify the cost
Thanks to a reader for pointing out these shocking statistics from the D.C.-based Justice Policy Institute which calculated that it will cost Texas $38,771,924 to implement the requirements in the 2006 federal Adam Walsh Act, which expands and broadens state sex offender registries into a national program at the states' expense.
As has become typical, Congress threatened states by telling them they won't get back their fair share of tax dollars they sent to Washington if they don't give up this or that measure of sovereignty - in this case they'll lose 10% of federal Byrne grant funds which are block grants given to states to support law enforcement.
The new federal law "Broadens the range of offenses covered from aggravated sex acts, such as rape, to include sex crimes with elements of sexual contact, even if they are not sex acts," according to the Juvenile Probation Commission (ppt), and expands the lifetime registry to include youth as young as 14. The federal law also quadruples requirements for verification of information in the database (from annually in Texas now to every three months), creating significant additional bureaucratic costs at all levels of government.
Regardless, different Texas state agencies are implementing pieces of the federal law on their own, but purely as an administrative decision without budgetary authorization from the state. I mentioned earlier the Department of Public Safety recently began putting sex offenders' employment information online, which it turns out is a new requirement in the Adam Walsh act. The Department of Protective and Family Services has similarly chosen to comply with the new federal regs on their own as they relate to that agency.
By contrast, Texas officialdom has received the idea much more coolly. Last year the Legislature balked at mandating implementation, so basically those agencies are doing this on their own. Wrote prosecutor association lobbyist Shannon Edmonds earlier this year on the TDCAA website:
In 2006, Texas received just $14,045,713 in Byrne grant funds, which means Texas would only lose $1,404,571 if the state chose not implement these new national standards. (Long-time readers will recall that these are the federal monies that once funded Tulia-style drug task forces in Texas, now abolished. Today most of it goes toward expanding treatment-oriented programs and to pay for the Governor's border security program.)
So the Texas Legislature could save taxpayers $37,367,353 and keep the public safer just by telling the feds to "go to hell" and informing DFPS and DPS the state will not comply. That's a big ol' unfunded mandate - a lot of agencies scratch and claw each others eyes out at the Legislature for a lot less money than $37 million. Given that sex offender registries increase recidivism for people on their rolls, I'd prefer we just not do it!
RELATED: See this excellent resource page on the Adam Walsh act from our pal Corey Yung at the Sex Crimes Blog and a power point presentation from the Juvenile Probation Commission about the Adam Walsh act and what would be required for Texas to implement it.
As has become typical, Congress threatened states by telling them they won't get back their fair share of tax dollars they sent to Washington if they don't give up this or that measure of sovereignty - in this case they'll lose 10% of federal Byrne grant funds which are block grants given to states to support law enforcement.
The new federal law "Broadens the range of offenses covered from aggravated sex acts, such as rape, to include sex crimes with elements of sexual contact, even if they are not sex acts," according to the Juvenile Probation Commission (ppt), and expands the lifetime registry to include youth as young as 14. The federal law also quadruples requirements for verification of information in the database (from annually in Texas now to every three months), creating significant additional bureaucratic costs at all levels of government.
Regardless, different Texas state agencies are implementing pieces of the federal law on their own, but purely as an administrative decision without budgetary authorization from the state. I mentioned earlier the Department of Public Safety recently began putting sex offenders' employment information online, which it turns out is a new requirement in the Adam Walsh act. The Department of Protective and Family Services has similarly chosen to comply with the new federal regs on their own as they relate to that agency.
By contrast, Texas officialdom has received the idea much more coolly. Last year the Legislature balked at mandating implementation, so basically those agencies are doing this on their own. Wrote prosecutor association lobbyist Shannon Edmonds earlier this year on the TDCAA website:
Legislation to implement the revised Adam Walsh Act was introduced last session but failed to pass -- primarily because the bill's own sponsors ... decided it was bad public policy.As Shannon alluded, the penalty for Texas not implementing the changes would be to lose 10% of its annual Byrne grant funds, a pot of money which has declined dramatically in recent years.
For the text of the bill, see here.
Some other states have also backed away from coming into compliance, although I can't recall which ones. All states have until the summer of 2009 to come into compliance or face the loss of some federal funds (which just so happen to be getting cut in D.C. anyway, so the loss may not actually amount to anything anyway).
In 2006, Texas received just $14,045,713 in Byrne grant funds, which means Texas would only lose $1,404,571 if the state chose not implement these new national standards. (Long-time readers will recall that these are the federal monies that once funded Tulia-style drug task forces in Texas, now abolished. Today most of it goes toward expanding treatment-oriented programs and to pay for the Governor's border security program.)
So the Texas Legislature could save taxpayers $37,367,353 and keep the public safer just by telling the feds to "go to hell" and informing DFPS and DPS the state will not comply. That's a big ol' unfunded mandate - a lot of agencies scratch and claw each others eyes out at the Legislature for a lot less money than $37 million. Given that sex offender registries increase recidivism for people on their rolls, I'd prefer we just not do it!
RELATED: See this excellent resource page on the Adam Walsh act from our pal Corey Yung at the Sex Crimes Blog and a power point presentation from the Juvenile Probation Commission about the Adam Walsh act and what would be required for Texas to implement it.
Monday, September 29, 2008
Snitching stories from all over
Having discussed over the weekend one of the most egregious horror stories I've seen regarding mendacious informants and prosecutorial misconduct, I thought I'd point readers to several recent non-Texas cases involving snitches that demonstrate more problems associated with their unregulated use:
- Encouraging Illegal Break-Ins. In Virginia, reports Reason's Radley Balko, two police informants "broke into Ryan Frederick's home and stole the alleged marijuana plants the police then used as probable cause to obtain the search warrant." One of the burglars had earlier told a reporter that "police were actually encouraging these illegal break-ins." When police raided the house the homeowner shot and killed one of the officers as they were attempting to break down the door; they found less than a third of an ounce of pot. The informant told the Virginia-Pilot, "he and an accomplice didn't worry about breaking into Frederick's garage because police assured them they would be protected. 'The dude said he was going to look out for us, so let's go do it,' he said."
- Protecting Criminals. Donna Weaver at Women in Crime Ink reports on the trial of an FBI agent who allowed informants associated with Boston mobster Whitey Bulger to literally get away with murder of an accountant/rat within their organization who was giving information to the feds. Weaver poses a series of poignant questions for the former agent; my favorite: "If John Callahan’s murder was a result of information you provided to your CIs in order to protect them, why are you then not guilty of murder? Did you think your CIs would send Mr. Callahan on an all-expense paid vacation to the South Pacific?"
- Planting Drugs. In New Orleans, the city settled a lawsuit alleging that four officers planted drugs on suspects during a 2002 raid. All four were later fired for unrelated misconduct.
- Setting Up Innocent People. A DEA Agent whose lying informant set up an innocent man in Florida 15 years ago, we learn at TalkLeft, moved to Ohio and enlisted another snitch who did the same thing to nearly two dozen people. Wrote a federal judge in Florida in a 2002 civil judgment against the state: "Today's criminal justice system is at risk of being exploited by confidential informants ... The only people who can protect the system against the 'rogue actions' of confidential informants are those who use them: the government."
- Lack of Oversight. A 23-year old informant in Tallahassee, Florida was murdered when "an 18-member team of local, state and federal law enforcement lost contact with [her] midway through the [undercover] operation" Police broke many of their own rules regarding informant use, including coercing her "to become a confidential informant without arresting her, cutting out the state attorney's office from being involved in crafting the cooperation agreement."
- Unethical Coercion. Finally, I was fascinated to read this account of methods used by the Israeli secret police in the Gaza strip to develop informants, including not only torture but denial of critical medical care if families of sick people do not agree to become government collaborators.
Promoting familiy ties behind bars
Children of incarcerated parents tend to rebel and act out because of their parent's absence and are 5-7 times more likely than their peers to end up incarcerated themselves, so I was encouraged to learn of this program in a Missouri women's prison aimed at encouraging mothers behind bars to spend quality time with their children. Reported USA Today ("MO program fosters family ties behind bars," Sept. 25):
The crayons, construction paper and toddlers scattered on the floor suggest a typical daycare center or kindergarten classroom. The armed guards and surveillance cameras reveal a painful reality.The handful of inmates gathered for the monthly program at the Women's Eastern Reception, Diagnostic and Correctional Center include some of the state's most notorious female convicted murderers.
But their crimes don't prevent the women's loved ones from calling them Mommy and Grandma, or from needing a hug or words of encouragement. And while the inmates do time, their children and grandchildren often struggle with feelings of anger, resentment and betrayal.
University of Missouri outreach workers started the family support program in 1999 at the state's maximum security prison in Potosi. Known as the Living Interactive Family Education program, or 4-H LIFE, is now offered in Potosi, Vandalia and the Algoa Correctional Center in Jefferson City.
"There are many education programs for incarcerated parents," said program director Tammy Gillespie. "But not a whole lot that work with the entire family."
More than 1.7 million children in this country have a parent in prison, according to the federal Bureau of Justice Statistics. And more than half of the estimated 1.5 million inmates in U.S. prisons last year were themselves parents.
From a loss of custody to emotional damage and financial hardship, those fractured families face challenges even after the missing parent is released, Gillespie noted. The inmate education program is designed to strengthen family bonds while also teaching the parenting skills necessary to survive in the outside world.
"We're not just an activity to keep people busy," she said. "We're trying to build skills that will last a lifetime."
"They get to practice their parenting skills in a safe environment," Gillespie added. "And they get a chance to show their family and their children that they're trying to do better."
Arlington returning to foot patrols
The City of Arlington reports success in crime reduction after reinstating foot patrols, especially around crime-ridden apartment complexes. The Fort Worth Star-Telegram says that since they:
started their foot patrol, Arlington Police Department statistics show a slight drop in crime. More importantly, residents feel safer.In a sidebar to the piece, the Startlegram published an interview with UT-Austin Prof. Bill Spelman about the efficacy of foot patrols. Said Spelman:"Foot patrol was just a godsend," said Eleanor Powell, who directs social service programs at the Artisan. "We had a lot of graffiti. We had fights. We had vehicle thefts. But all of that is down."
The department reports similar results in the two other neighborhoods where it launched its foot patrol pilot program in December. It’s too soon to gauge results for three patrols that started in June, but the City Council recently approved funding for 12 more foot patrol officers, and the department expects to add two patrols in January, Police Chief Theron Bowman said.
Several cities across the country have resurrected foot patrols in recent years. San Francisco’s Police Department was ordered to start a foot patrol program in 2006. In Atlanta, foot patrol is the first assignment for all rookie cops. But in Tarrant County, Arlington’s program is unique. It’s modeled after one in Providence, R.I.
The best example in the country right now is in San Diego. They’re training all their officers in recognition and analysis of recurring problems. A growing number of departments are recognizing it’s great if they have some officers they can dedicate to community policing, but also that they can stretch their resources if all officers recognize that part of their job is getting out of their car and finding out what’s going on in the community.
It’s not the presence of a police officer that’s getting crime to go down, it’s what they’re doing.
Sunday, September 28, 2008
Snitch who walked for his testimony turned out to be real killer, rapist; prosecutor became judge, and soon elected DA
As DNA evidence sorts out errors made in old cases, sometimes it also reveals examples of official misconduct from decades past, in this case by a lawyer who's about to become elected District Attorney in Cooke County, a rural county along the Oklahoma border (Gainesville is the county seat).
The prosecutor in question cut a deal for the testimony of Gerald Pabst back in 1986 to gain his assistance prosecuting rape-murder charges against his brother-in law, Clay Chabot. This fact was never disclosed to the defense, but last year DNA evidence proved Pabst himself was the rapist, and last week Pabst was convicted of the murder, though Chabot may still be recharged.
However Chabot's case turns out, it's fascinating the way DNA evidence sheds light on the the specific causes of wrongful convictions. In this instance, the prosecuting attorney failed to disclose information about a snitch-and-you-walk deal with Pabst in which she agreed to drop all charges against him in exchange for his testimony.
Given that Pabst actually committed the crime, that would have been a hard deal to pass up! That observation, of course, points directly to the problems with allowing such compensated testimony in court without corroboration or vetting the informant's reliability.
To bring the story full circle, the prosecutor whose misconduct was identified in the Pabst case went on to become a Dallas County judge and is about to win an unopposed election to become an elected DA. The Dallas News Crime Blog picked up this tidbit from the Pabst murder trial coverage:
The prosecutor in question cut a deal for the testimony of Gerald Pabst back in 1986 to gain his assistance prosecuting rape-murder charges against his brother-in law, Clay Chabot. This fact was never disclosed to the defense, but last year DNA evidence proved Pabst himself was the rapist, and last week Pabst was convicted of the murder, though Chabot may still be recharged.
However Chabot's case turns out, it's fascinating the way DNA evidence sheds light on the the specific causes of wrongful convictions. In this instance, the prosecuting attorney failed to disclose information about a snitch-and-you-walk deal with Pabst in which she agreed to drop all charges against him in exchange for his testimony.
Given that Pabst actually committed the crime, that would have been a hard deal to pass up! That observation, of course, points directly to the problems with allowing such compensated testimony in court without corroboration or vetting the informant's reliability.
To bring the story full circle, the prosecutor whose misconduct was identified in the Pabst case went on to become a Dallas County judge and is about to win an unopposed election to become an elected DA. The Dallas News Crime Blog picked up this tidbit from the Pabst murder trial coverage:
The prosecutor who withheld the evidence is Janice Warder, also a former Dallas County judge. She is running unopposed next month to become Cooke County's District Attorney.A murder charge was dropped against Mr. Pabst after he testified in 1986, but last year prosecutors filed a capital murder charge after DNA tests showed Mr. Pabst was the rapist.
Judge Mike Snipes recommended in March a new trial for Mr. Pabst's brother-in-law, Clay Chabot. He said that Ms. Warder withheld information that would have helped Mr. Chabot at trial.
Let the Chips Fall
Where They May.
The Dallas News presents speculation pro and con on the $64 Question that arises now that former Court of Criminal Appeals Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell admitted engaging in a long-term romantic affair while she was a district judge, during which time the DA's office prosecuted hundreds of defendants before her court: What will happen to all the other cases besides Hood's which may also be ethically compromised?
Reports Diane Jennings ("Former prosecutor, judge intimacy may affect more than a single death row case," Sept. 27):
The Dallas News presents speculation pro and con on the $64 Question that arises now that former Court of Criminal Appeals Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell admitted engaging in a long-term romantic affair while she was a district judge, during which time the DA's office prosecuted hundreds of defendants before her court: What will happen to all the other cases besides Hood's which may also be ethically compromised?
Reports Diane Jennings ("Former prosecutor, judge intimacy may affect more than a single death row case," Sept. 27):
Keith Hampton of the Texas Criminal Defense Lawyers Association,Some legal ethicists say prosecutors have a responsibility to identify cases from the years the two held office and ensure that the convicted have their day in court. Others doubt that is the prosecutors' role.
"They do have a proactive responsibility," argues Robert Schuwerk, a University of Houston law professor who co-wrote the Handbook of Texas Lawyer and Judicial Ethics.
"The principal duty of a prosecutor under our system is not to convict but to see that justice is done," he said. "I would think that a prosecutor has the duty to either bring those cases forward or, at the very least, cooperate in establishing which cases were affected by this behavior."
Others say it is a defense responsibility to raise issues about the validity of a conviction.
Collin County Assistant District Attorney John Rolater says it is his duty to see "that justice is done," but the chief of the county's appellate division declined to comment on whether the county will proactively identify cases that might have been affected by the relationship between the judge and prosecutor. ...
It's "uncharted territory," said Rob Kepple, executive director of the Texas District and County Attorneys Association. "I'm at a loss to answer that."
Prosecutors "normally wait for a defendant or someone else to raise these questions," he said. And, he added, prosecutors "want to see where the injury is, where the harm is. We want someone to spell it out for us. ... If the defendant can link that up and show me something in the record, I guess we can talk about it."
Texas Attorney General Greg Abbott – who stepped in days before Mr. Hood's most recent execution date to urge an investigation into the relationship– said he would have "to know more background facts, what exactly happened, when did it happen" in each case before deciding whether a review was warranted. ...
said he does not expect a blanket order from either the district attorney or a court to cover all cases potentially affected by the relationship. Instead, "they're going to have to do this one case at a time."
But Lawrence Fox, former chair of the American Bar Association Ethics Committee, said sweeping steps may be necessary to preserve confidence in Texas' criminal justice system. Not only does he think the district attorney is obligated to bring the cases to the attention of the court, he suggested that the state should provide attorneys for defendants to challenge their convictions.
"I would hope that, under these circumstances, the state would recognize a special obligation to these people, because, remember, it was two state officers who did all this.
"You would hope somebody would say the system of justice has a black eye right now, and one way to remove it is to make sure these people who are in a prison get counsel to deal with these issues," he said.
DPS boosts sex offender ostracization without reason
Via Crime and Consequences:
From the beginning, when a later-exonerated man was pilloried in the Ashley Estell case as the prime example justifying the bill, Texas' sex offender registry has been based on faulty premises. Research has consistently shown that sex offender registries "increas[e] recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior," making it hard to keep employment and function in society without harassment or ostracization.
Now DPS wants to reduce the chance sex offenders can be gainfully employed - for what reason (beyond a pure, cynical public relations ploy) I cannot fathom. There's certainly zero public safety benefit. It's basically an overt decision to increase the number of sex crimes in Texas. What is DPS thinking?
Texas Registry Posts Sex Offenders' Jobs: In addition to a sex offenders' name, home address, photograph and criminal record, the Texas Department of Public Safety is now posting their employers, according to the story by Brian Collister, of WOAL TV in San Antonio. The state is providing the employment information to allow the public to learn if sex offenders are working in jobs that bring them in contact with children. The link to the Texas registry is here. A therapist notes that the new information may cost some offenders the jobs they need for rehabilitation.This is a foolish move by the Department of Public Safety, and one taken on the agency's own initiative, not because of any legislation directing them to do so. This decision by DPS makes it more likely sex offenders will not be able to successfully rehabilitate and successfully make their way in society when their sentence is complete.
From the beginning, when a later-exonerated man was pilloried in the Ashley Estell case as the prime example justifying the bill, Texas' sex offender registry has been based on faulty premises. Research has consistently shown that sex offender registries "increas[e] recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior," making it hard to keep employment and function in society without harassment or ostracization.
Now DPS wants to reduce the chance sex offenders can be gainfully employed - for what reason (beyond a pure, cynical public relations ploy) I cannot fathom. There's certainly zero public safety benefit. It's basically an overt decision to increase the number of sex crimes in Texas. What is DPS thinking?
Friday, September 26, 2008
Why should snitches' testimony get extra scrutiny?
One of the CCA "Integrity Unit" members, Texas House Corrections Chairman Jerry Madden, posed a question to Justice Project President John Terzano regarding snitches during his presentation yesterday that inspired me to (perhaps rudely?) interject from the audience a response to his concerns. (I was attending as part of my consulting gig with the Innocence Project of Texas.)
Terzano was arguing that informants whose testimony will be compensated by money, reduced charges or more lenient sentences for other crimes they've committed should be subjected to a pre-trial reliability hearing in which a judge, outside the purview of the jury, makes an independent determination whether the informant is a reliable source.
Regular readers know this is an idea that I've long regarded highly since first hearing about the concept from Loyola (CA) law prof Alexandra Natapoff, a former federal public defender turned law professor and a deep thinker on snitching-related topics. I know of many cases where such a precaution might have prevented a lot of heartache.
Madden asked whether the courts subject any other witnesses to this sort of pre-vetting and why shouldn't they just rely on the jury to determine if the witness is credibile? Terzano replied that informants were a special case because they had special incentives to lie, but I could tell by the look on the Chairman's face he was dissatisfied with the response.
So I raised my hand like a schoolkid from my seat in the peanut gallery (the event was held in the CCA court room), and, receiving the barest acknowledgment, burst in to insist that the more precise analogy would compare snitches to paid, expert witnesses, for whom the courts have established the Daubert standard to determine whether jurors can hear their testimony. Though it's more notoriously true in civil court, because experts are paid by advocates aiming for a particular outcome that's in dispute, frequently opposing sides of a legal matter can find qualified experts willing to espouse entirely opposing views if they're both paid by people with conflicting agendas (in this case conviction vs. acquittal).
Similarly, I said, confidential informants should be considered compensated witnesses just like experts who're evaluated based on the Daubert standard. Even when snitches aren't compensated directly with cash, their reduced or eliminated culpability for other crimes constitutes compensation more valuable, in a real sense, than anything money can buy! After all, what is the price for human freedom?
In an era when so-called "tort reform" has been a cause celebre in Texas politics for more than a decade, the idea of pay-per experts with college degrees, suits and briefcases willing to testify to anything for a buck has almost become a cliche. How much more willing would some criminal be to lie or manipulate evidence when their "compensation" for doing so is their freedom instead of just a 3-figure hourly fee?
MORE: Commenter Don Dixon asked "isn't this what cross-examination is for?" I emailed his question to Prof. Natapoff after replying myself, curious about her answer. She replied, in relevant part:
Terzano was arguing that informants whose testimony will be compensated by money, reduced charges or more lenient sentences for other crimes they've committed should be subjected to a pre-trial reliability hearing in which a judge, outside the purview of the jury, makes an independent determination whether the informant is a reliable source.
Regular readers know this is an idea that I've long regarded highly since first hearing about the concept from Loyola (CA) law prof Alexandra Natapoff, a former federal public defender turned law professor and a deep thinker on snitching-related topics. I know of many cases where such a precaution might have prevented a lot of heartache.
Madden asked whether the courts subject any other witnesses to this sort of pre-vetting and why shouldn't they just rely on the jury to determine if the witness is credibile? Terzano replied that informants were a special case because they had special incentives to lie, but I could tell by the look on the Chairman's face he was dissatisfied with the response.
So I raised my hand like a schoolkid from my seat in the peanut gallery (the event was held in the CCA court room), and, receiving the barest acknowledgment, burst in to insist that the more precise analogy would compare snitches to paid, expert witnesses, for whom the courts have established the Daubert standard to determine whether jurors can hear their testimony. Though it's more notoriously true in civil court, because experts are paid by advocates aiming for a particular outcome that's in dispute, frequently opposing sides of a legal matter can find qualified experts willing to espouse entirely opposing views if they're both paid by people with conflicting agendas (in this case conviction vs. acquittal).
Similarly, I said, confidential informants should be considered compensated witnesses just like experts who're evaluated based on the Daubert standard. Even when snitches aren't compensated directly with cash, their reduced or eliminated culpability for other crimes constitutes compensation more valuable, in a real sense, than anything money can buy! After all, what is the price for human freedom?
In an era when so-called "tort reform" has been a cause celebre in Texas politics for more than a decade, the idea of pay-per experts with college degrees, suits and briefcases willing to testify to anything for a buck has almost become a cliche. How much more willing would some criminal be to lie or manipulate evidence when their "compensation" for doing so is their freedom instead of just a 3-figure hourly fee?
MORE: Commenter Don Dixon asked "isn't this what cross-examination is for?" I emailed his question to Prof. Natapoff after replying myself, curious about her answer. She replied, in relevant part:
1. The large number of exonerations in snitch cases suggest that cross examination doesn't do a very good job, since juries apparently believe lying snitch witnesses anyway even when they are cross examined. Professor George Harris [George C. Harris, Testimony for Sale : The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)] points out that while cross may be effective for regular witnesses, snitches whose own lives are on the line may be particularly difficult witnesses to budge from their stories.
2. In federal court, the Jencks Act delays the government production of witness statements until after the witness has testified, meaning that the defense won't even get to see the snitch's prior statements until after he takes the stand - it's hard to cross effectively under those circumstances. See Ellen Podgor, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 Georgia St. U.L. Rev. 651 (1999).
3. Professor Jeff Neuschatz's study [Jeffrey S. Neuschatz et al., The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, 32 Law & Hum. Behav. (2008)] found that mock jurors didn't even care whether the snitch was compensated - they convicted at the same rates whether they were told of the deal or not. In other words, jurors may be impervious to the things that we think will cause them to disbelieve snitches.
4. By the way, the Supreme Court in the Hoffa case clearly believed that cross examination would be effective against informants and prevent fundamental unfairness to defendants. It's just not so clear that the Court was right.
Lab personnel rarely collect crime scene evidence directly
Another few tidbits from yesterday's meeting of the Criminal Justice Integrity Unit created by the Court of Criminal Appeals; this time let's highlight some comments from the event about Texas forensic labs:
Pat Johnson, who's the field supervisor for DPS' state-run crime labs and a member of the Integrity Unit panel, performed an informal survey of non-DPS crime labs in Texas operated by local jurisdictions. Respondents said that less than 10% of evidence collected at crime scenes was gathered by lab personnel, with most of it being collected by cops. Austin PD is the main exception, he said, with an entirely civilian Crime Scene Investigation unit.
A majority of labs, when asked how good a job they were doing, replied that some improvements were needed.
One lab said they did not believe they were receiving all available evidence that should be examined, while a majority said "we don't know."
Johnson said 2/3 of local labs provided some training to staff but relatively few people were actually receiving it. He asked about evidence storage. DPS labs return evidence to whoever sent it to them, while local labs vary, with some storing it themselves while others return it to police property rooms. On biological evidence, though, even when evidence is returned most labs have a policy of retaining a DNA sample.
Several respondents expressed concerns about storage space, which corroborates concerns expressed by John Vasquez's presentation on space shortages at police property rooms. Jim McLaughlin, a lobbyist for the police chiefs' association who's a member of the Integrity Unit, said three schools - Texas State, Texas A&M, and Sam Houston State University - were all developing training programs for crime lab personnel. He urged expanded funding for training if the state expected everyone to participate.
Another speaker, John Terzano who's the President and co-founder of the Justice Project, said that forensic errors or malpractice was the second biggest cause of false convictions in Texas behind erroneous eyewitness/vicitim IDs. He urged expanded funding and staffing for the Forensic Science Commission to allow it to be more proactive instead of just "backward looking." He also argued for "blind testing" in forensic labs so the technicians actually running the tests don't know the details of the case in order to avoid bias and pressure to be a "team player."
Terzano also mentioned that Texas recently received $500,000 in federal grant funds for DNA testing but that money had not been finally allocated yet to individual departments. This is a so-called "Bloodsworth" grant authorized under the Federal Innocence Protection Act, he said. Four other states - Washington, Arizona, Kentucky and Virginia - also received money under this federal grant program.
Pat Johnson, who's the field supervisor for DPS' state-run crime labs and a member of the Integrity Unit panel, performed an informal survey of non-DPS crime labs in Texas operated by local jurisdictions. Respondents said that less than 10% of evidence collected at crime scenes was gathered by lab personnel, with most of it being collected by cops. Austin PD is the main exception, he said, with an entirely civilian Crime Scene Investigation unit.
A majority of labs, when asked how good a job they were doing, replied that some improvements were needed.
One lab said they did not believe they were receiving all available evidence that should be examined, while a majority said "we don't know."
Johnson said 2/3 of local labs provided some training to staff but relatively few people were actually receiving it. He asked about evidence storage. DPS labs return evidence to whoever sent it to them, while local labs vary, with some storing it themselves while others return it to police property rooms. On biological evidence, though, even when evidence is returned most labs have a policy of retaining a DNA sample.
Several respondents expressed concerns about storage space, which corroborates concerns expressed by John Vasquez's presentation on space shortages at police property rooms. Jim McLaughlin, a lobbyist for the police chiefs' association who's a member of the Integrity Unit, said three schools - Texas State, Texas A&M, and Sam Houston State University - were all developing training programs for crime lab personnel. He urged expanded funding for training if the state expected everyone to participate.
Another speaker, John Terzano who's the President and co-founder of the Justice Project, said that forensic errors or malpractice was the second biggest cause of false convictions in Texas behind erroneous eyewitness/vicitim IDs. He urged expanded funding and staffing for the Forensic Science Commission to allow it to be more proactive instead of just "backward looking." He also argued for "blind testing" in forensic labs so the technicians actually running the tests don't know the details of the case in order to avoid bias and pressure to be a "team player."
Terzano also mentioned that Texas recently received $500,000 in federal grant funds for DNA testing but that money had not been finally allocated yet to individual departments. This is a so-called "Bloodsworth" grant authorized under the Federal Innocence Protection Act, he said. Four other states - Washington, Arizona, Kentucky and Virginia - also received money under this federal grant program.
Police evidence rooms are 'red-headed stepchidren' of law enforcement, Integrity Unit told
At yesterday's meeting of the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit, created earlier this summer to examine proposed innocence-related reforms, John Vasquez from the Texas Association of Property and Evidence Inventory Technicians (TAPEIT) gave an interesting presentation about evidence preservation failures and the need for greater professionalism and implementation of best practices by police department property rooms. TAPEIT has about 600 active members who work in law enforcement agencies around the state, he said. (See their rather active message boards.)
Vasquez gave these examples of property room failures from years past:
A key problem arises from departments' historical approach to staffing evidence rooms, said Vasquez. Many agencies assign officers who have disciplinary problems or who've been relegated to desk duty pending an Internal Affairs investigation. Some officers are put there as "light duty" because of physical handicaps that supposedly prevent them from being able to perform field work, but that practice ignores how much lifting and toting must be done by those who work in property rooms. Most departments use police officers to manage evidence, he said, but that's not required and TAPEIT recommends that civilians perform that function.
There's very little training for evidence managers beyond what TAPEIT provides, said Vasquez, and typically departments prioritize field officers in their training budgets. Flawed methods are often passed down by word of mouth or picked up on a "learn as you go" basis, while many evidence room managers don't know the laws that govern their activities. Rep. Jim McReynolds questioned whether techs could learn everything they needed to in the 8-hour TAPEIT training, to which Vasquez replied, "No."
The most immediate problem with Texas evidence rooms stem from a lack of space, he said, and unclear laws and rules about what can be kept or disposed of. When dealing with biological evidence, for example, some DAs want only a sample of whatever was tested - a piece of bloody fabric from a couch instead of the whole couch, e.g. - while others want the entire item saved for trial. Also, too many evidence rooms fail to exercise their "right of refusal" for items that are shoddily packaged or too dangerous to store around where people immediately work.
The advent of "touch DNA," he said, threatened to overwhelm agencies' storage capacity. Potentially lots of new items could be stored for touch-DNA testing, even though labs already have tremendous backlogs. That means long lag times during which the evidence must be securely stored despite limited space.
Another issue: The law allows pre-trial destruction of most drug evidence as long as it was weighed, measured, photographed, and at least five random samples were taken with sufficient quantities for testing. But some DAs want all the drugs saved for "show and tell" in front of the jury, even when large volumes are involved. Vasquez thinks photographs would do the job just as well.
Seized meth labs are especially toxic, he said, and many evidence managers struggle with how to handle them as evidence or safely destroy them. He also said air quality in evidence rooms can create health and safety hazards. For example, keeping too much marijuana laying around for a long time can spawn Aspergillus, a toxic mold that can be inhaled by evidence room workers.
Rep. Jim McReynolds, a member of Judge Hervey's "Integrity Unit" as well as the budget officer for the Corrections Committee in the Texas House, said he wants to carve out evidence preservation as an area for his office to work on and likely propose legislation next year during the 81st Legislature.
RELATED: For those interested in reading more about this topic, I should have mentioned that the Denver Post last year produced the most in-depth recent journalistic analysis yet of problems related to evidence retention around the country, an account I highly recommend. To pull one Texas gem from the story: In Houston, a "courthouse official" said to the Post, "Biological evidence? That would include tree bark, right?"
Vasquez gave these examples of property room failures from years past:
- In Fort Worth in 1997, a murderer used a knife stolen from the Fort Worth Police Department property room to kill someone. His mother, who worked for the Fort Worth PD, supplied him the weapon. Police found a house full of property stolen from the evidence room when they came to arrest him.
- Galveston's PD's property room was recently called "the worst" she'd seen in 30 years by a consultant brought to recommend changes after an employee stole cocaine, ecstasy and $18,000. The thief was actually a TAPEIT member, he said, who'd attended their previous year's conference, but the agency suffered from a lack of supervision and documentation procedures to prevent an unethical person from stealing.
- In Houston earlier this year 30 guns turned up missing and Vasquez provided additional detail about that case. The culprit was a telephone repairman, he said, who had free access. They also found a temp employee with evidence room access while he was awaiting trial on aggravated robbery charges. He said the department didn't have "enough personnel to follow others around" when non-PD employees needed evidence room access.
- Money seized as part of pending asset forfeitures was stolen from the Hillsboro PD evidence room in 2006, said Vasquez. A single thief took the money, but there were no checks and balances, paperwork, audits or other preventive methods to oversee staff.
A key problem arises from departments' historical approach to staffing evidence rooms, said Vasquez. Many agencies assign officers who have disciplinary problems or who've been relegated to desk duty pending an Internal Affairs investigation. Some officers are put there as "light duty" because of physical handicaps that supposedly prevent them from being able to perform field work, but that practice ignores how much lifting and toting must be done by those who work in property rooms. Most departments use police officers to manage evidence, he said, but that's not required and TAPEIT recommends that civilians perform that function.
There's very little training for evidence managers beyond what TAPEIT provides, said Vasquez, and typically departments prioritize field officers in their training budgets. Flawed methods are often passed down by word of mouth or picked up on a "learn as you go" basis, while many evidence room managers don't know the laws that govern their activities. Rep. Jim McReynolds questioned whether techs could learn everything they needed to in the 8-hour TAPEIT training, to which Vasquez replied, "No."
The most immediate problem with Texas evidence rooms stem from a lack of space, he said, and unclear laws and rules about what can be kept or disposed of. When dealing with biological evidence, for example, some DAs want only a sample of whatever was tested - a piece of bloody fabric from a couch instead of the whole couch, e.g. - while others want the entire item saved for trial. Also, too many evidence rooms fail to exercise their "right of refusal" for items that are shoddily packaged or too dangerous to store around where people immediately work.
The advent of "touch DNA," he said, threatened to overwhelm agencies' storage capacity. Potentially lots of new items could be stored for touch-DNA testing, even though labs already have tremendous backlogs. That means long lag times during which the evidence must be securely stored despite limited space.
Another issue: The law allows pre-trial destruction of most drug evidence as long as it was weighed, measured, photographed, and at least five random samples were taken with sufficient quantities for testing. But some DAs want all the drugs saved for "show and tell" in front of the jury, even when large volumes are involved. Vasquez thinks photographs would do the job just as well.
Seized meth labs are especially toxic, he said, and many evidence managers struggle with how to handle them as evidence or safely destroy them. He also said air quality in evidence rooms can create health and safety hazards. For example, keeping too much marijuana laying around for a long time can spawn Aspergillus, a toxic mold that can be inhaled by evidence room workers.
Rep. Jim McReynolds, a member of Judge Hervey's "Integrity Unit" as well as the budget officer for the Corrections Committee in the Texas House, said he wants to carve out evidence preservation as an area for his office to work on and likely propose legislation next year during the 81st Legislature.
RELATED: For those interested in reading more about this topic, I should have mentioned that the Denver Post last year produced the most in-depth recent journalistic analysis yet of problems related to evidence retention around the country, an account I highly recommend. To pull one Texas gem from the story: In Houston, a "courthouse official" said to the Post, "Biological evidence? That would include tree bark, right?"
CCA gets another chance to probe ethics of their former colleague in Charles Hood case
The Texas Court of Criminal Appeals will get another chance to do the right thing and evaluate whether their former colleague Judge Verla Sue Holland's extramarital exploits tainted the 1990 Charles Hood capital murder trial. Hood's attorneys filed another habeas appeal yesterday, even though the CCA previously made it clear they had no intention of reviewing Judge Holland's alleged misconduct before Hood's execution.
Since eight of the nine court members previously served on the bench with Judge Holland, their studied indifference to the now-admitted affair in this writer's view amounted to a stunning ethical lapse. Now, at least, the CCA will get a chance to partially, belatedly redeem itself.
With the new filing, from the Dallas News ("Attorney General defends actions in investigation of affair between judge and DA," Sept. 26) we get more details of the relationship than have been previously reported:
Since eight of the nine court members previously served on the bench with Judge Holland, their studied indifference to the now-admitted affair in this writer's view amounted to a stunning ethical lapse. Now, at least, the CCA will get a chance to partially, belatedly redeem itself.
With the new filing, from the Dallas News ("Attorney General defends actions in investigation of affair between judge and DA," Sept. 26) we get more details of the relationship than have been previously reported:
Texas Attorney General Gregg Abbott told the News:The petition filed Thursday seeking a new trial shed more light on the relationship between Judge Holland and Mr. O'Connell. According to the petition, Judge Holland told attorneys it began in 1982 and ended in 1987; Mr. O'Connell recollected it started in 1984 or 1985 and did not end until 1991 or 1992.
The two apparently remained good friends even as the romance waned. As late as 1991, they traveled to Santa Fe together, and Mr. O'Connell attended Judge Holland's family reunion that same year.
The depositions reportedly said both parties professed their love for each other during the relationship. Mr. O'Connell said Judge Holland talked about getting married, but Judge Holland denied that.
Both parties said they kept the relationship secret. "Their sexual encounters took place at each other's homes when their spouses were away," according to the petition.
According to the petition, Judge Holland said during her deposition it was "absolutely not" improper for her to preside over the Hood case. Her attorney has said the romance was not going on at the time of Mr. Hood's arrest and trial.
While I'm glad Abbott finally stepped forward when he did, to be honest it was clear long before this recent episode that Texas' highest criminal court did not plan to examine Judge Holland's allegedly unethical bench behavior before Hood was killed. Houston Chronicle columnist Rick Casey bottom lines the whole mess thusly: "Texas came very close to becoming, once again, a source of national amazement. We very nearly executed a man, only to learn days later that his judge and prosecutor had been lovers." Heck, depending on the CCA's decision, the state may still execute Mr. Hood even knowing that information!that he had expected Texas courts to "step up and do the right thing" by investigating an affair between the judge and prosecutor in the trial of condemned killer Charles Dean Hood.
Only when they didn't, did his office publicly intervene in a case that he says "has called into question the integrity" of the Texas justice system. ...
"A real triggering event was when it was learned that a hearing was set to look into this matter days after the execution was set," he said. It was then that the former Texas Supreme Court judge took public action.
Thursday, September 25, 2008
Open Thread
I'll be out most of the day to attend the second meeting of the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit, so check out the blogs in Grits' sidebar while I'm gone and use this post as an open thread to let us know what Texas criminal justice issues you're paying attention to that the rest of us should be watching.
Also, though I've not covered the West Texas polygamy story in a while, a college pal of mine, Susan Hays, who was one of the nearly 300 attorneys ad litem involved in the case, was interviewed extensively about the case and her experiences in this extended ABA Journal article. Those interested should give it a read.
Also, though I've not covered the West Texas polygamy story in a while, a college pal of mine, Susan Hays, who was one of the nearly 300 attorneys ad litem involved in the case, was interviewed extensively about the case and her experiences in this extended ABA Journal article. Those interested should give it a read.
Wednesday, September 24, 2008
Ombudsman: TYC closed abuse cases without proper investigation
SB 103 required the Texas Youth Commission's Ombudsman to report to the Governor, the Lt. Governor and the Speaker of the House whenever he discovers "particularly serious or flagrant" problems or abuses, and Ombudsman Will Harrell issued his first such report today to say TYC closed more than 500 cases of alleged mistreatment without making a final determination or forwarding information about criminal allegations to the Inspector General. (See AP's initial coverage.)
Here's an excerpt from the cover letter giving an overview of the Ombudsman's concerns:
MORE (9/25): The SA Express News has coverage; here's an excerpt:
Next Wednesday, a meeting of the joint legislative committee on TYC oversight will consider the details of Harrell's report and other TYC-related matters.
Here's an excerpt from the cover letter giving an overview of the Ombudsman's concerns:
The Office of the Independent Ombudsman (OIO) is statutorily required to report “particularly serious or flagrant” abuse of youth rights or problems with the TYC administration immediately to certain officials. This is the first occasion that the OIO has felt that something we uncovered triggered that provision. ...The cases summarily closed referenced by the OIO were among those that came in last year in response to the massive publicity about sexual and physical abuse at TYC. While sexual abuse cases were quickly identified, physical abuse and other types of mistreatment didn't always merit the same administrative focus, the Ombudsman found. The report isn't online yet but I'll get a link up when it's available and provide a more thorough account after I've had a chance to fully read it.
The OIO has identified several structural and procedural flaws with the administration of the TYC Alleged Mistreatment Incident system (AMI). Our greatest concern, and the reason for which we are contacting your office, is that we discovered hundreds of abuse or neglect allegations that were administratively closed without proper administrative and/or law enforcement investigation.
Additional concerns include the following:
• Failure to ensure disciplinary consequences follow confirmed AMI’s
• Wrongful assignment of AMI investigations in halfway houses
• Substantial delay in assignment and investigation of AMI’s
• Inadequate staffing levels for AMI system and poorly trained and underqualified investigative and managing staff
• Lack of independence for AMI system
• Lack of data integrity in AMI system
In March of 2007, the State Auditor suggested that the AMI system be placed under the direction of the TYC Inspector General. That restructuring was recently directed by Conservator Nedelkoff and we believe that it will insure that the problems we have identified do not persist.
MORE (9/25): The SA Express News has coverage; here's an excerpt:
MORE: The Houston Chronicle quotes Sen. John Whitmire declaring, "I personally cannot guarantee any judge or parent that their kid is not going to be abused" ... I want very specific documentation, no cover-ups, no smoothing things over," continued Whitmire. "Do I have confidence in the current administration? No. Do I have confidence in the current dynamics of this agency? No."Texas Youth Commission ombudsman Will Harrell identified 85 cases of alleged abuse or neglect that — according to the agency's own records — were closed without being investigated by the agency's administrative arm, the Youth Rights Division, or by any law enforcement agency, in violation of procedures.
Another 88 recently closed abuse and neglect cases were investigated “by a law enforcement agency, but not by the Youth Rights Division as required by policy,” Harrell said in a blistering report he delivered to the state's top leadership Wednesday.
A total of 564 cases alleging mistreatment of youths were closed by the agency without any record indicating how they were disposed, the report says.
In some instances, abuse allegations were assigned to the alleged perpetrator to investigate, Harrell said. Other cases were left hanging after being assigned to people who had been transferred to other departments and not notified, or to people who had left the agency.
Next Wednesday, a meeting of the joint legislative committee on TYC oversight will consider the details of Harrell's report and other TYC-related matters.
When DNA evidence accuses after the statute of limitations runs out
The preservation of biological evidence has not only led to a remarkable string of DNA-based exonerations in Dallas, it's also helping police solve cold cases in violent crimes, even where the statute of limitations has run out. Reports the Dallas News: ("DNA links rapes to men where statutes of limitations have expired," Sept. 24):
Along with the string of exonerations in Big D, these cases show why evidence preservation can be important even when it may not prove anything at the time. Dallas' practice of saving old biological evidence not only has exonerated the innocent but identified the guilty. Who knows what new technologies may exist 20 years from now that might provide a similar, future window on innocence and guilt based on re-examined evidence in today's cases?
While I think the Lege might be receptive to Watkins' idea to enter DNA-identified suspects into the sex offender registry, my educated guess would be that the federal courts would not let that stand without actual convictions to back up the entries. Moreover, I'm unconvinced the sex offender registries work as advertised thanks to research showing they actually increase recidivism for those on their rolls, so for my money it doesn't sound like Watkins has struck upon the right solution, yet, though I understand his frustration.It's an issue Dallas must face because, unlike most counties nationwide, it has preserved DNA evidence for decades. And though 19 prisoners have been exonerated as a result, that evidence is incriminating people as well.
Dallas police are taking a second look at hundreds of old rape cases in light of advancing technology. That leaves officials grappling with how to handle the newfound suspects.
If they can't be charged, Dallas police and District Attorney Craig Watkins would like to require them to register as sex offenders, and to have their deeds noted in their criminal histories.
"This is all new," Mr. Watkins says. "We're going into uncharted territory." ...
The statute of limitation on rape in Texas spanned only five years in the 1980s. Such laws protect the rights of defendants in situations where time has washed away evidence that could exonerate them. People die, memories fade, records disappear.
Because of the certainty brought by new technology, Texas' statute of limitations for rape was eliminated in 1996 for cases with suspect DNA. But the U.S. Constitution says those accused of crimes in the past can only be held accountable based on the laws in place at the time.
Along with the string of exonerations in Big D, these cases show why evidence preservation can be important even when it may not prove anything at the time. Dallas' practice of saving old biological evidence not only has exonerated the innocent but identified the guilty. Who knows what new technologies may exist 20 years from now that might provide a similar, future window on innocence and guilt based on re-examined evidence in today's cases?
Innocent until reported guilty
I've spent a great deal of time on Grits discussing a panoply of possible innocence reforms, from improving eyewitness ID procedures to requiring corroboration and reliability tests for informants to improving forensic labs and recording police interrogations. But in Miller-McCune Magazine Steve Weinberg suggests that improved journalism about crime and punishment may be the best remedy:
BLOGVERSATION: At Simple Justice.
Weinberg wraps his critique around the remarkable story of a wrongful conviction in Missouri based on a pair of jailhouse informants who accused an innocent woman, showing how any cursory investigation by a reporter would have revealed the main flaws in the case many years before the courts finally admitted it. He continues:One solution for wrongful convictions, however, has not been explored in a sustained, meaningful manner. It is a solution that cannot be legislated or even come from the government. The solution requires writers and editors for newspapers, magazines, radio stations, television stations, Web sites and books to practice preventive journalism rather than after-the-conviction, too-late journalism.
Until and unless journalists improve their performance, far more innocent people will be imprisoned than the criminal justice system seems likely ever to acknowledge. The logical extension of the preceding statement seems obvious, but I’ll say it anyway: Unless journalists get better at covering the justice system, many criminals will continue to go unpunished, free to murder or rape or rob again. So investigating wrongful convictions is not — as perceived by too many police, prosecutors and judges — an assault by soft-on-crime bleeding hearts. Rather, it is an attempt to serve law and order, to improve the administration of justice and to foster faith in the criminal justice system.
Writing in the University of Missouri, Kansas City Law Review, researcher Rob Warden noted just six years ago, “Throughout most of history, until quite recently, journalism generally was hostile to claims of innocence by those convicted or accused of serious crimes. The annals of reporting are replete with instances of prejudicial sensationalism, often published in concert with police and prosecutors under pressure to convict someone without credible evidence. On rare occasions when post-conviction discoveries of innocence were chronicled, the reporting invariably was subdued and devoid of any explicit suggestion that there might be systemic problems.”
But advances in DNA testing over the past 15 years have led more and more journalists to listen carefully when contacted by inmates claiming innocence. High-profile exonerations based on DNA testing demonstrate the wrongful-conviction problem convincingly; those exonerations also suggest the scope of the problem in the vast majority of cases that have no testable DNA evidence.
To be fair, I'd add to Weinberg's assessment that among innocence cases, there have definitely been instances, at the Dallas News and Houston Chronicle, for example, where journalists were ahead of the curve. In Austin recently, the Austin Chronicle's Jordan Smith has tracked the infamous Yogurt Shop murder cases at a level of detail that leaves little doubt the defendants falsely confessed after DNA from the rapist was recovered from a vaginal swab that matched none of the defendants. Here's a typical paragraph from Jordan's coverage:The typical situation within newsrooms today looks like this: Coverage of criminal cases is spotty and often superficial when it occurs. Elected prosecutors tend to be treated as the last of the sacred cows, the white hats who keep the streets safe for law-abiding citizens. The lawyers hired by the elected prosecutor are rarely mentioned in print and even more rarely subjected to meaningful scrutiny, despite their considerable power. The police in general are not treated so sacredly by journalists. That said, almost all individual police officers operate anonymously as far as most journalists are concerned, allowing rogues to make questionable arrests with relative impunity.
The criminal cases that do receive coverage are usually those proceeding all the way to trial. Because in a typical jurisdiction only about 5 percent of defendants reach trial (the other cases are dismissed or plea bargained by the prosecutor), the math is basic: Around 95 percent of criminal cases never receive coverage by journalists after the arrest.
Even the cases that reach trial almost never receive the kind of journalistic scrutiny that could reveal a wrongful conviction in the making. Instead, reporters and editors handling trial coverage simply summarize what is occurring within the confines of the courtroom, rather than conducting an independent inquiry.
The revelation in April that there was a new male profile collected from semen found on a vaginal swab taken from the youngest victim, 13-year-old Amy Ayers, appeared to deliver another stunning blow to the state's already weak case against Scott and Springsteen. Indeed, although the state insists the two are responsible for the murders, there is absolutely no physical evidence tying either man to the crime. The same is true for two other suspects – Maurice Pierce, the man the state has said was the "mastermind" behind the crime but against whom all charges were dismissed in 2003, and Forrest Welborn, who was dropped as a suspect after two grand juries failed to indict him – even though plenty of physical evidence was recovered from the scene, inside a North Austin yogurt shop.That's exactly the type of independent assessment Weinberg's calling for, and while I agree it's not typical, it's not entirely accurate to say it never happens. By comparison, the daily newspaper has tended to provide so-called "balanced," he-said she-said coverage that fails to delve deeply into the facts of the case. So I certainly agree with Weinberg that critical reporting about crime stories isn't typical, and we'd all be better off if it happened more often. Via CrimProf Blog.
BLOGVERSATION: At Simple Justice.
Waco jail affairs clouded in controversy
Having earlier covered debates in Waco over new jail construction and privatization, I should point readers to several recent articles on the McLennan County jail that show those topics haven't yet fully resolved themselves.
First, departing House Urban Affairs Committee Chairman Kevin Bailey "has asked the state attorney general to determine whether it is legal for a sheriff to accept a fee for work with a private detention company that contracts with his county to operate a county jail," reported the Waco Tribune Herald. (See more on the AG request from Texas Prison Bidness.)
Meanwhile, jail plans in Waco are at a standstill because the consultant chosen by the county can't figure out how to build a jail that complies with state regulations within the minimalist package approved by the commissioners court. (The jail may turn out to be a two-story building instead of a one-story structure.) Jail planners also proposed using video visitation at the jail in lieu of adding more parking space and building a larger visitation area:
First, departing House Urban Affairs Committee Chairman Kevin Bailey "has asked the state attorney general to determine whether it is legal for a sheriff to accept a fee for work with a private detention company that contracts with his county to operate a county jail," reported the Waco Tribune Herald. (See more on the AG request from Texas Prison Bidness.)
Meanwhile, jail plans in Waco are at a standstill because the consultant chosen by the county can't figure out how to build a jail that complies with state regulations within the minimalist package approved by the commissioners court. (The jail may turn out to be a two-story building instead of a one-story structure.) Jail planners also proposed using video visitation at the jail in lieu of adding more parking space and building a larger visitation area:
Finally, besides new jail building, county practices in the current jail have also come under fire. The Austin-based Texas Civil Rights Project has filed suit against the McLennan County jail to stop its practice of strip searching inmates. A few years back I heard an attorney involved in successful California jail litigation on strip searches, and from that account I'm guessing the sort of blanket strip searches described as going on in Waco are clearly unconstitutional. TCRP is working with co-counsel from California in the Waco case who:Another design issue is deciding how much space should be dedicated to the jail’s visitation center. Officials are contemplating building video visitation kiosks throughout the jail that would be linked to a video conferencing center off-site for families to contact inmates. The video conferencing center would contain private booths similar to pay phones.
Visitation hours still would be held at the facility for people who choose to do in-person visits. Less space would be set aside for the parking lot, and a smaller visitors’ center would be created under the assumption that fewer people would come to the jail for visits, leaving more space for cells.
“We envision it being something like the pay phones in the jail now, except instead of the phone portion it would be video,” Adams said. “These things will be regulated, so you won’t have people getting visitation at 2 o’clock in the morning. But there would be set times for when inmates can visit, and it will be more convenient for the families.”
Sheriff Larry Lynch said during the meeting he supports video visitation, citing success of the practice at Collin County jails in North Texas. He said the video conferencing also could be used by attorneys to meet with their clients, a practice that is being used in the 54th and 74th state district courts.
“There could be longer visits, depending on how we get this worked out,” he said. “It would be more convenient for people because they won’t have to come out to the jail and sit out in the parking lot waiting to get in. And they won’t get turned away because there are too many people (coming to the jail).”
has settled several class-action strip-search cases against county jails in at least three other states and currently has a similar suit pending in Bexar County in Texas, a Texas Civil Rights Project spokesman said. In 2005, Sacramento County, Calif., agreed to pay $15 million to 4,000 inmates who were strip-searched “without reasonable suspicion,” the spokesman said.See prior, related Grits posts:
- McLennan commissioners back on private jail track after raucous debate
- Commissioner wants off jail privatization train
- What options besides jail building for Waco?
- A couple of Jillls with their eyes on a couple of bills
- Costs of privatization debated in Waco
- Deputies oppose Waco jail privatization plans
Tuesday, September 23, 2008
Harris County needs an independent Public Defender office
Even as Dallas County commissioners' new caseload quotas and heightened bureaucracy gutted their Public Defender office (I learned over the weekend a 6th felony attorney turned in their resignation on top of the five mentioned earlier on Grits), in Harris County the commissioners court today will hear the details of a preliminary plan on how to create a PD office in Houston. The idea is still in the early stages and would require approval of the commissioners court to proceed. Reports the Houston Chronicle ("Harris County to review plan for public defenders office," Sept 23):
Clearly, though, from Dallas' experience, part of any plan for a Harris PD should include ways to insulate the office from direct manipulation by the politicians who set their budget. With prosecutors it's easier because a District Attorney is independently elected, but nationally we see episodic problems with politicized interference by counties similar to what recently happened in Dallas. That's the crux of the concerns raised in the Chronicle story by the defense bar:
State Sen. Rodney Ellis deserves a lot of credit for pushing this idea in Harris County and getting the ball rolling. Generally I'm a big supporter of public defender offices. They not only save the county money on attorneys fees (thanks to economies of scale) but also help process defendants more quickly and to that extent even help with jail overcrowding. While some attorneys fear it will take money out of their pockets, that doesn't have to be the case. In Dallas about half of indigent assignments still go to private attorneys. And there's always the much-more desirable market of defendants who can pay.A public defenders office would represent some indigent defendants in four criminal district courts and one juvenile court under a proposal to be presented to Commissioners Court today.
Public defenders also would be assigned to some defendants with mental retardation or significant mental illnesses in the four district courts and all 15 county criminal courts under the plan crafted by the county's budget and management services office.
The plan, submitted as part of the court's annual mid-year budget review, offers a long-awaited but early look at the kind of system Harris County could adopt. A final vote is not expected until shortly before the court adopts the 2009-10 budget in March.
It remains unclear if supporters of the proposal could muster enough support on the five-member board to prevail.
The only step court members are expected to take today is authorizing further studies by a team of representatives from county and district courts, the county attorney's office, each Commissioners Court member's office, the criminal defense bar, the Texas Fair Defense Project and the Texas Task Force on Indigent Defense. ...
Clearly, though, from Dallas' experience, part of any plan for a Harris PD should include ways to insulate the office from direct manipulation by the politicians who set their budget. With prosecutors it's easier because a District Attorney is independently elected, but nationally we see episodic problems with politicized interference by counties similar to what recently happened in Dallas. That's the crux of the concerns raised in the Chronicle story by the defense bar:
I've found Commissioner Radack's comments throughout this discussion particularly interesting because he insists he'll base his decision solely on whether a PD office will save taxpayers money. Since there's literally no question at all that's the case, you'd think he'd be a supporter. However, the bigger sticking point may turn out to be whether the commissioners court is willing to cede enough control to make a PD office independent.Criminal defense lawyer Tate Williams said the plan does not go far enough to eliminate the appearance of impropriety.
"If the judges get to control who gets what case, you're always going to have the allegations of bias and favoritism," Williams said.
He said he would oppose any public defender plan unless the legislature capped the number of cases each attorney could handle and required counties to provide those offices with the same money and access to resources given to prosecutors.
A 15-member Public Defense Board would oversee the whole system, setting those standards, appointing the director and approving the annual budget.
Commissioner Steve Radack said he opposes giving the Public Defense Board authority over a county department. He said the report submitted to the court raised more questions than it answered.
"If it can save the taxpayers money, that's one thing," Radack said. "If it actually provides something better than what we're providing today, we can talk about it."
County Judge Ed Emmett said he had some of the same questions. Commissioner Sylvia Garcia said the report is a step in the right direction.
California prison reform package implodes amidst partisan bickering
Regular readers know that the Texas Legislature in the last two sessions successfully forged remarkable bipartisan agreements supporing key first steps toward reforming the criminal justice system in ways that reduce the number of new inmates entering Texas prisons, though we still have a long way to go.
In California, by contrast, partisan bickering this month killed a legislative package aimed at cutting the state's prison population and reducing the corrections budget, thanks to tuff on crime demagoguing, largely along partisan lines.
To provide a little background, it's worth mentioning that California's prison system currently suffers an even more significant crisis than Texas - by far - because unlike here, the US Department of Justice has not been shy about stepping in to address shortcomings in both juvenile and adult systems. In 2007 California's "Little Hoover Commission" issued a report titled, "Solving California's Corrections Crisis: Time is Running Out," which outlined the problem thusly in a transmission letter to the Lege:
In California, by contrast, partisan bickering this month killed a legislative package aimed at cutting the state's prison population and reducing the corrections budget, thanks to tuff on crime demagoguing, largely along partisan lines.
To provide a little background, it's worth mentioning that California's prison system currently suffers an even more significant crisis than Texas - by far - because unlike here, the US Department of Justice has not been shy about stepping in to address shortcomings in both juvenile and adult systems. In 2007 California's "Little Hoover Commission" issued a report titled, "Solving California's Corrections Crisis: Time is Running Out," which outlined the problem thusly in a transmission letter to the Lege:
California’s prisons are out of space and running out of time.And yet, despite the threat of courts taking over their decisionmaking role, at much greater cost to taxpayers, and a massive state budget crisis, the California Legislature couldn't muster the political will to pass anything constructive. Reports the Sacramento Bee:
The State already has ceded control to the federal courts for prison mental health, juvenile justice and the prison health system. In December, a federal judge ordered the State to fix the overcrowding problem within six months, or face the prospect of a prison population cap.
The State is past the point for assigning blame. The urgency of the crisis demands we look now to those who can produce a solution. That responsibility lies with the Governor and the Legislature. You have the authority and, as California’s leaders, must share the duty of fixing California’s failed corrections system.
A default strategy of waiting until federal judges order needed changes is not governing. The Governor and Legislature need to take the initiative away from federal courts by demonstrating you have a better plan. That way, the Governor and Legislature can regain the confidence of the courts as well as the Californians they govern. ...
The Governor and Legislature must find the political will to move past rhetoric and address ways to solve the prison population crisis and make good on promises to improve public safety. “Tough on Crime” sentencing laws have to be judged by outcomes and matched with fiscal responsibility. To ensure public safety, reforms will have to jettison posturing to make room for smart on crime policies.
You must act decisively on the problem or turn it over to an independent body, insulated from politics, that can. Our recommendation and preference is for you to do it yourselves.
The problem does not need further study. The State knows what the answers are, thanks to nearly two decades of work by such groups as the Blue Ribbon Commission on Population Management, the Corrections Independent Review Panel and a series of reports by this Commission.
Despite ample evidence and recommendations, policy-makers have been unwilling to take on the problem in a purposeful, constructive way. The consequences of failing to act aggressively now leave the State open to losing control of the State correctional system and with it, control of the state budget.
Gov. Arnold Schwarzenegger and Democratic lawmakers agreed earlier this year on a set of carefully written reforms that would have made the prisons more effective, and cheaper. Democrats estimated the savings at $445 million.
The elements were:
• Parole reforms. Instead of the standard three-year parole after serving a prison sentence, nonserious, nonviolent offenders would be discharged from parole after five months of clean time.
• Early release of dying or paraplegic offenders who pose no risk.
• Good-time credits for inmates who complete training programs, providing incentives to prepare for life after prison.
• Updated sentencing thresholds for property crimes (such as grand theft and forgery). For example, the grand theft threshold is $400, unchanged from 1982. That's $925 in today's dollars.
This $445 million package was whittled to $175 million in August. But even that minimal package was unacceptable to Republicans, who tried to paint the Democrats as soft on crime, when in fact the proposals arguably would have made Californians safer. In the end, the package dwindled to just $14 million in savings.
With federal courts already so actively involved in oversight of California's corrections system, this failure to rein in rising prison populations amounts to a breach of fiduciary responsibility. The Sac Bee blames Republicans in the legislature, but that body is controlled by Democrats so the majority party clearly couldn't muster its forces to counter concerted opposition.
I've frequently wondered why USDOJ has targeted California prisons and youth detention centers so aggressively, but not those in Texas where many of the health and safety outcomes that spawned court action in the Golden State are just as bad or worse?
My working theory is that Texas has been spared systematic, Ruiz-style prison litigation over the last seven years because there was a Texan in the White House and, for a time, atop the pyramid at the Department of Justice itself. It's hard to imagine Alberto Gonzales unleashing the hounds at USDOJ on his buddies back in Texas. By contrast, California is a "blue" state run by Democrats, particularly before election of the Governator, so politically it made a more inviting target for partisan Texans in the Bush administration.
If that interpretation is accurate, Texas may not be spared a similar fate once a senator from Arizona or Illinois takes control of the reins of power.
Monday, September 22, 2008
Jerry Madden on TYC, prison diversion
Dallas Blog has an interview with House Corrections Committee Chairman Jerry Madden about the Texas Youth Commission, prison diversion programs, and what to expect in the 2009 legislative session. Give it a read.
Emotional pair of DNA exonerations argue for changing eyewitness ID procedures
This weekend in Fort Worth at a training event sponsored by the Innocence Project of Texas (for whom I'm employed as a consultant) and the Texas Criminal Defense Lawyers Association, I had the privilege of meeting some of the people whose stories were highlighted in recent Grits posts about DNA exoneration cases.
Johnnie Lindsey was released Friday after spending nearly 26 years in prison on a false conviction for rape. He's a quiet, gentle and somewhat fragile-looking man who underwent chemotherapy treatments for cancer while in prison. Lindsey speaks with the commitment and humility of a cancer survivor about the value of a second chance, and pledged to work toward the release of other innocent people in prison now that he's out.
Lindsey's quick to flash a smile, and he lit up when I asked him if he'd gotten to see any family yet. He described a tearful reunion with his son on Friday, who was 2 years old when Johhnie was sent to prison. He'd been out of contact with his son since he was five, and now the young man is nearly the same age as was Lindsey himself when he was wrongly accused and convicted. Tiara Ellis of the Dallas News was there for their reunion and published this account:
I met another remarkable set of people over the weekend who were highlighted in a recent Grits post, including the family of Timothy Cole - a Texas Tech student falsely convicted of rape who died in prison in 1999 but was exonerated by DNA evidence this summer. They were joined by the rape victim in the case, Michele Mallin (along with her husband), who had misidentified him first in a photo array and then in court.
Their presentations dramatically moving, particularly watching Cole's 71-year old mother break down and cry as she told Mallin in front of the group that she forgave her, that they were all victims of injustice in her son's case. She blamed the Lubbock DA's office and two detectives, she said, but not Mallin. I've gotta admit I teared up hearing her story, and I think probably everyone in the room did. Cole's youngest brother, Corey Sessions, vowed to take his brother's story to the statehouse in Austin to back innocence-related legislative reforms.
Hearing Mallin relive the episode was equally brutal. She insisted both in her comments Friday evening and in private conversation that she'd never wanted anyone but the guilty man punished - that should go unsaid, one would hope, but clearly she felt terrible about what had happened and felt the need to explain herself. You couldn't help but feel sorry for her, to rush to tell her "Nobody thinks that!," but it's easy to understand why she would feel that way.
The police had another suspect in Mallin's case who turned out, based on recent DNA testing, to be the real rapist. In fact his name, Jerry Johnson, was even mentioned several times during Cole's trial by the defense as an alternative suspect, though only when Mallin, who was a witness, was out of earshot. Johnson began writing first the DA's office to say he'd actually committed Mallin's rape when the statute of limitations ran out, but nobody told Mallin or Cole's family until Johnson contacted Cole's mother earlier this year.
Mallin said she'd never been told there was another suspect and always assumed the police had other evidence Cole had committed the crime beyond her identification. They did not. She was 20 years old at the time and justly proud of herself for testifying in the trial and doing the right thing. She said she'd now been "victimized twice" and it's hard to deny it.
It's difficult to imagine two cases making a more persuasive and compelling case for enacting eyewitness ID reforms in Texas.
BLOGVERSATION: The Friends of Justice blog discusses these two cases. More from TalkLeft, Crime and Federalism, and the Dallas News' Metroblog.
UPDATE (9/23): Michele Mallin and Ruby Session were featured on NPR's News and Notes segment today discussing the wrongful conviction of Timothy Cole and the Innocence Project of Texas' efforts to obtain his posthumous exoneration. Listen here.
Johnnie Lindsey was released Friday after spending nearly 26 years in prison on a false conviction for rape. He's a quiet, gentle and somewhat fragile-looking man who underwent chemotherapy treatments for cancer while in prison. Lindsey speaks with the commitment and humility of a cancer survivor about the value of a second chance, and pledged to work toward the release of other innocent people in prison now that he's out.
Lindsey's quick to flash a smile, and he lit up when I asked him if he'd gotten to see any family yet. He described a tearful reunion with his son on Friday, who was 2 years old when Johhnie was sent to prison. He'd been out of contact with his son since he was five, and now the young man is nearly the same age as was Lindsey himself when he was wrongly accused and convicted. Tiara Ellis of the Dallas News was there for their reunion and published this account:
Lindsey's case, like so many others, resulted from a faulty eyewitness identification, but this one had a twist: Detectives on the case MAILED the lineup photos to the victim a full year after the incident occurred. Not only that, the photos in the array seemed to improperly single Lindsey out; his picture was one of two men in the photo array not wearing a shirt and the victim had described her assailant as shirtless. What's more, a jury ignored especially strong alibi evidence - a time card and a work supervisor who said if Lindsey weren't there the business' work would have stopped. That goes to show just how powerful eyewitness testimony can be, even when it's inaccurate.For the first time in more than 25 years Friday, Johnnie Earl Lindsey embraced his son – and freedom.
"My son, he wasn't even 2 years old when I left," Mr. Lindsey said. "His name is Johnnie, but we call him J.J."
"Nah, it's just Jay," said 27-year-old Johnnie Cooper, his eyes red and wet with tears as he looked at the stranger he has been told is his father.
I met another remarkable set of people over the weekend who were highlighted in a recent Grits post, including the family of Timothy Cole - a Texas Tech student falsely convicted of rape who died in prison in 1999 but was exonerated by DNA evidence this summer. They were joined by the rape victim in the case, Michele Mallin (along with her husband), who had misidentified him first in a photo array and then in court.
Their presentations dramatically moving, particularly watching Cole's 71-year old mother break down and cry as she told Mallin in front of the group that she forgave her, that they were all victims of injustice in her son's case. She blamed the Lubbock DA's office and two detectives, she said, but not Mallin. I've gotta admit I teared up hearing her story, and I think probably everyone in the room did. Cole's youngest brother, Corey Sessions, vowed to take his brother's story to the statehouse in Austin to back innocence-related legislative reforms.
Hearing Mallin relive the episode was equally brutal. She insisted both in her comments Friday evening and in private conversation that she'd never wanted anyone but the guilty man punished - that should go unsaid, one would hope, but clearly she felt terrible about what had happened and felt the need to explain herself. You couldn't help but feel sorry for her, to rush to tell her "Nobody thinks that!," but it's easy to understand why she would feel that way.
The police had another suspect in Mallin's case who turned out, based on recent DNA testing, to be the real rapist. In fact his name, Jerry Johnson, was even mentioned several times during Cole's trial by the defense as an alternative suspect, though only when Mallin, who was a witness, was out of earshot. Johnson began writing first the DA's office to say he'd actually committed Mallin's rape when the statute of limitations ran out, but nobody told Mallin or Cole's family until Johnson contacted Cole's mother earlier this year.
Mallin said she'd never been told there was another suspect and always assumed the police had other evidence Cole had committed the crime beyond her identification. They did not. She was 20 years old at the time and justly proud of herself for testifying in the trial and doing the right thing. She said she'd now been "victimized twice" and it's hard to deny it.
It's difficult to imagine two cases making a more persuasive and compelling case for enacting eyewitness ID reforms in Texas.
BLOGVERSATION: The Friends of Justice blog discusses these two cases. More from TalkLeft, Crime and Federalism, and the Dallas News' Metroblog.
UPDATE (9/23): Michele Mallin and Ruby Session were featured on NPR's News and Notes segment today discussing the wrongful conviction of Timothy Cole and the Innocence Project of Texas' efforts to obtain his posthumous exoneration. Listen here.
The stench of justice
Here's a Hurricane Ike tidbit from the Harris County courthouse that wasn't widely reported, from Life at the Harris County Criminal Justice Center:
After Ike came through over the weekend, one of the biggest problems it created within the Harris County Criminal Justice Center was a back up of raw sewage that pretty much permeated the first floor of the building. Trust me on this one, folks -- it was freaking NASTY!This report comes as part of a longer post criticizing Harris County for forcing the DA's office secretarial pool to dip into vacation time to fix up their homes after the storm passed. AHCL has been providing regular updates on the process of getting the Harris County Courthouse up and running last week.
Private prison news
These notable private prison stories showed up in the news over the weekend:
Laredo 'Superjail' launched.
Texas Prison Bidness informs us that the so-called Laredo Superjail - a controversial 1,500 bed facility that earlier drew staunch opposition - finally opened last week. TPB blogger Bob Libal offered this account:
Three prisoner deaths including two suicides in Texas are spurring a debate in Idaho over the state's reliance on out of state private prisons, according to a lengthy article in the Magic Valley Times News ("Families feel loss as out of state prison population grows," Sept. 21):
Laredo 'Superjail' launched.
Texas Prison Bidness informs us that the so-called Laredo Superjail - a controversial 1,500 bed facility that earlier drew staunch opposition - finally opened last week. TPB blogger Bob Libal offered this account:
Idaho's 'Virtual Prison' monitors oversee Texas facilitiesI was able to attend the opening, and have to admit it was even more surreal than I could have imagined - complete with a high school mariachi band singing Spanish language ballads, a cake in the shape of the GEO Group's corporate logo, and a slew of new GEO Group prison guards (many of whom looked to be 18 or 19) wearing desert-camo style uniforms.
GEO Group executives George Zoley and Wayne Calabrese mingled with local politicos, including Laredo mayor Raul Salinas and Webb County judge Danny Valdez, who apparently have forgotten their respective councils' rejection of GEO money a little over a year ago.
The prison will hold pre-trial federal detainees for the U.S. Marshals - many of whom will be immigrants prosecuted for criminal violations under the program Operation Streamline. The facility was proposed back in 2003, and even before the official launch of Streamline, the Marshals capacity was being pushed almost exclusively by expanded criminal prosecution of immigration violations (PDF), a departure from the old style of dealing with immigration issues in the immigration court system.
Simply put, this $100 million gift to the GEO Group is almost exclusively due to the government holding border-crossers in criminal jail for 30-90 days before deporting them. Doesn't seem too "streamlined" to me.
Three prisoner deaths including two suicides in Texas are spurring a debate in Idaho over the state's reliance on out of state private prisons, according to a lengthy article in the Magic Valley Times News ("Families feel loss as out of state prison population grows," Sept. 21):
Idaho has so many prisoners scattered around the country that the IDOC last year developed the Virtual Prison Program, assigning 12 officers to monitor the distant prisons.The Virtual Prison program is documenting problems, even if it's not necessarily solving them:
In 2007 Idaho sent 429 inmates to Texas and Oklahoma. This year; more than 700 - and by one estimate it could soon hit 1,000.
During recent visits to the Bill Clayton Detention Center in Littlefield, Texas - where about 371 Idaho inmates are now held - state inspectors found there wasn't a legal aid staffer to give inmates access to courts, as required by the state contract. Virtual Prison monitors also agreed with Aragon's assessment:Arkansas prison system says privatization wrong overcrowding fix. Arkansas' prison system oversees a total 14,816 people, reports the Arkansas Democrat Gazette ("State still opposes private prisons," Sept. 20), but 1,247 are presently housed in county jails because the state doesn't have enough beds. In response, four legislators co-sponsored legislation last week to use private prisons for the overflow, but the state prison system is resisting the idea. Said a Department of Corrections spokesperson:
"No programs are offered at the facility," a state official wrote in a recently redacted Idaho Virtual Prison report obtained by the Times-News. "Most jobs have to do with keeping the facility clean and appear to be less meaningful. This creates a shortage of productive time with the inmates.
"Overall, recreational activities are very sparse within the facility. Informal attempts have been made to encourage the facility to increase offender activities that would in the long run ease some of the boredom that IDOC inmates are experiencing," according to a Virtual Prison report.
“I will say our department is not overly eager to step back into privatization.” [Dina] Tyler cited the state’s experience with the Wackenhut Corrections Corp., which ran the Grimes and McPherson units in Newport from 1998 to 2001.“That experiment didn’t go well. The state had to assume management of those two facilities because the company couldn’t do what it said it could do,” Tyler said.
Wackenhut performed poorly in sanitation and maintenance issues, she said.
Tyler also pointed to a U. S. Department of Justice probe into the McPherson and Grimes units in November 2003 which characterized conditions at the two prisons as “unconstitutional” because of inadequate medical care and unsafe living conditions.
“That happened right after we stepped back in,” Tyler said.
[Privatization supporter Rep. Johnnie] Hoyt, who is in his first term as a state representative, said “if I’d been here a hundred years like everyone else, I’d know that. But is Wackenhut OK now ? Let’s revisit all aspects of that.” A subsequent agreement between the state and the Justice Department to remedy conditions at the prisons has been completed, releasing the state from federal oversight, Tyler said.
Sunday, September 21, 2008
Pro-jail bond committee created in Tyler
In Tyler, a pro-jail committee will announce itself Monday in support of Smith County's third jail bond ballot in three years, reports the Morning Telegraph:
Tyler District Judge Cynthia Kent predicts the jail will be full on the day it opens because the commissioners court remains too focused on new construction instead of diverting people from jail or processing cases more quickly through the courts. Smith County has created a couple of successful diversion programs in light of recent jail bond rejections, but by all appearances the only way to get them to fully commit to that strategy would be for voters to reject the jail for the third year running. I predict that's exactly what will happen.
I'd reported earlier on the creation of Tyler's local jail opposition group, the "What part of no don't you understand committee." With nine figures of school bonds also on the ballot in Tyler and a high turnout election with the presidential race on the ballot, I have a hard time imagining how local officials think a jail vote will pass now when it was rejected by 2/3 of the voters two years running.The "Finally! A Jail Plan We Can Afford Committee" will hold a news conference announcing the formation of its action group in support of the Smith County Jail Bond proposed Nov. 4.Former jail opposition leader Bobby Curtis and past jail proposition supporter Herb Buie, along with Treasurer Harold Beaird and Campaign Manager Sharon Guthrie make up the committee that will lobby for the passage of the $59 million jail bond.The press conference will take place inside the Smith County Annex Building Court Room at 200 E. Ferguson 11 a.m. on Monday.
Tyler District Judge Cynthia Kent predicts the jail will be full on the day it opens because the commissioners court remains too focused on new construction instead of diverting people from jail or processing cases more quickly through the courts. Smith County has created a couple of successful diversion programs in light of recent jail bond rejections, but by all appearances the only way to get them to fully commit to that strategy would be for voters to reject the jail for the third year running. I predict that's exactly what will happen.
Friday, September 19, 2008
Rape victim seeks court to clear the name of now-deceased man she misidentified
A Texas rape victim is working to clear the name of the man convicted of attacking her. Michele Mallin of Baytown is traveling to Fort Worth today to meet with the family of Timothy Cole, a Lubbock man convicted of raping her who was posthumously cleared by DNA. She told the Fort Worth Star Telegram ("A rape victim is working to clear the name of the dead man convicted of attacking her," Sept. 19):
Just as there's no real process for courts to review post-conviction actual innocence claims in cases with no DNA, there's also not an established way for courts to clear the name of innocent people where the wrongfully convicted defendant has died. The Innocence Project of Texas (Disclosure: for whom I work as a policy consultant) has taken on Cole's case and is pursuing a legal strategy to posthumously exonerate him that will next take Cole's family and Mallin to Austin:
Mallin's participation with Cole's family emphasizes how doubly harmful it is when an innocent person is convicted, since that also means the guilty person won't be punished. I really admire her reaction to this terrible scenario and her willingness to work with Cole's family."I felt total guilt. My words. My pointing the finger at him, were the reason he went to prison," Mallin said. "I felt just terrible. . . . I never wanted the wrong man to be convicted. I hope everyone knows that."
Back then a 20-year-old Texas Tech sophomore, Mallin was a woman on a mission, determined to send Cole — nicknamed the "Tech Rapist" — to prison. Now, at 43, she is equally determined to clear Coles’ name, making him the first posthumous exoneration by DNA in Texas.
She will meet with Cole’s mother and brothers today in Fort Worth and will work with their attorney in filing a petition next week seeking a court of inquiry to clear Coles’ name.
Ruby Session, Cole’s 71-year-old mother, is looking forward to meeting Mallin.
"I don’t blame her. We don’t blame her. We never did," Session said. "Because she is a victim, too. She was victimized. She and Tim were the victims." ...
"I thought this family probably hates me. He can’t, but they must," Mallin said. "I couldn’t believe that they wanted to talk to me or see me. They were very gracious and nice people. They said they didn’t blame me."
Just as there's no real process for courts to review post-conviction actual innocence claims in cases with no DNA, there's also not an established way for courts to clear the name of innocent people where the wrongfully convicted defendant has died. The Innocence Project of Texas (Disclosure: for whom I work as a policy consultant) has taken on Cole's case and is pursuing a legal strategy to posthumously exonerate him that will next take Cole's family and Mallin to Austin:
Jeff Blackburn, chief counsel for the Innocence Project of Texas, said he plans to go to Travis County to seek the court of inquiry after being rejected by a Lubbock County judge in early August.
"What they want, and Michele Mallin wants, is a judge in some court in this state to finally tell it like it is and set the record straight," Blackburn said. "Only that will clear his name and provide some closure for Michele."
Hurricane News
TCJS heads to Galveston. Texas Commission on Jail Standards Chief Adan Munoz is headed down to Galveston today to check on the deputies and inmates who've been stranded in the county jail after Hurricane Ike without electricity, working toilets or running water.
Victoria jail still evacuated. It sounds like the Sheriff's emergency jail plans in Victoria were a lot smarter than in Galveston. They released 200 non-violent offenders prior to the storm and moved the rest to safety 36-48 hours before the hurricane hit. They're temporarily refusing to accept low-level arrestees in the Victoria jail until everyone gets re-settled, something which happened for a more extended period with apparently no ill effects in Chambers and Gregg Counties after Hurricane Rita.
Waiting to make bond. Texas City finally brought in a bond company Wednesday to get petty offenders out of their municipal jail who'd been kept there since before the storm. I don't know why they didn't release non-violent misdemeanants prospectively like in Victoria.
Sex offenders rounded up from evacuation shelters. The SA Express News reports that "About 1,000 sex offender parolees displaced by Hurricane Ike have been rounded up and sent to prisons and jails across the state." In Austin, police simply evicted sex offenders from evacuation shelters. “I have no idea where they went (after being put out) but they're not allowed to come back,” said James Mason, an Austin police detective. An ACLU analyst called Austin's policy "mystifying," declaring, “It's the opposite of keeping track of people.”
Victoria jail still evacuated. It sounds like the Sheriff's emergency jail plans in Victoria were a lot smarter than in Galveston. They released 200 non-violent offenders prior to the storm and moved the rest to safety 36-48 hours before the hurricane hit. They're temporarily refusing to accept low-level arrestees in the Victoria jail until everyone gets re-settled, something which happened for a more extended period with apparently no ill effects in Chambers and Gregg Counties after Hurricane Rita.
Waiting to make bond. Texas City finally brought in a bond company Wednesday to get petty offenders out of their municipal jail who'd been kept there since before the storm. I don't know why they didn't release non-violent misdemeanants prospectively like in Victoria.
Sex offenders rounded up from evacuation shelters. The SA Express News reports that "About 1,000 sex offender parolees displaced by Hurricane Ike have been rounded up and sent to prisons and jails across the state." In Austin, police simply evicted sex offenders from evacuation shelters. “I have no idea where they went (after being put out) but they're not allowed to come back,” said James Mason, an Austin police detective. An ACLU analyst called Austin's policy "mystifying," declaring, “It's the opposite of keeping track of people.”
Another Dallas DNA Exoneree
Yet another Dallas exoneree will walk free this morning after spending 26 years in a Texas prison on a false rape conviction thanks to newly tested DNA evidence that cleared him.
This is another terrible case of misidentification by an eyewitness. Believe it or not, a witness actually picked Johnnie Lindsey out of a photo lineup that was mailed to her a year after the incident! Lindsey's "was one of two pictures that showed a shirtless man, a description given by the victim immediately after the attack," according to a summary of the case issued by the Innocence Project of Texas which represented Lindsey at his findings hearing.
It was also an instance where investigators and jurors discounted strong alibi evidence that "included a timecard for the day of the attack and testimony by Johnnie’s boss that his absence would have shut down their commercial laundry operation on that day."
Dallas has seen so many innocent men leaving prison recently the effect can become numbing. Blogger Trey Garrison offered these bon mots when the DNA results were announced, "Yet another Henry Wade era conviction is overturned on DNA evidence. Or as we call it in Dallas, a Tuesday."
Johnnie Lindsey is the 19th Dallas man proven innocent and freed from prison through DNA evidence and the 35th Texan overall.
This is another terrible case of misidentification by an eyewitness. Believe it or not, a witness actually picked Johnnie Lindsey out of a photo lineup that was mailed to her a year after the incident! Lindsey's "was one of two pictures that showed a shirtless man, a description given by the victim immediately after the attack," according to a summary of the case issued by the Innocence Project of Texas which represented Lindsey at his findings hearing.
It was also an instance where investigators and jurors discounted strong alibi evidence that "included a timecard for the day of the attack and testimony by Johnnie’s boss that his absence would have shut down their commercial laundry operation on that day."
Dallas has seen so many innocent men leaving prison recently the effect can become numbing. Blogger Trey Garrison offered these bon mots when the DNA results were announced, "Yet another Henry Wade era conviction is overturned on DNA evidence. Or as we call it in Dallas, a Tuesday."
Johnnie Lindsey is the 19th Dallas man proven innocent and freed from prison through DNA evidence and the 35th Texan overall.
Around the blogs
Several recent posts from other blogs deserve Grits readers attention, starting with Texas Prison Bidness which has these private prison-related nuggets:
At the Friends of Justice blog, Lydia Bean offers a thoughtful post on the New Testament book of Philemon and its relevance to modern civil rights struggles.
The Deception Blog has an excellent post on using MRI brain scans for purposes of lie detection, concluding that recent arguments that such technology may soon be reliable enough to become admissible in US courts are "way off-beam."
- More opposition to MTC's Nacogdoches prison
- Grayson County moving ahead with private jail plans despite opposition
- Major incident at Cornell's Big Spring unit
At the Friends of Justice blog, Lydia Bean offers a thoughtful post on the New Testament book of Philemon and its relevance to modern civil rights struggles.
The Deception Blog has an excellent post on using MRI brain scans for purposes of lie detection, concluding that recent arguments that such technology may soon be reliable enough to become admissible in US courts are "way off-beam."
Thursday, September 18, 2008
'Move along, nothing to see here,' says FBI on anthrax attacks
Pat Leahy, one of the US senators targeted in the 2001 anthrax attacks, made this shocking declaration yesterday that he doesn't believe Bruce Ivins, the scientist blamed for the attacks who committed suicide earlier this year, acted alone:
These matters can get particularly dicey for the FBI when a primary crime victim is also the chair of the Senate Judiciary Committee! Rightly or wrongly, Leahy's in a position to insist that they show their work when otherwise, clearly, they'd rather call the case closed and forget about it.
See prior, related Grits posts:
"If he is the one who sent the letter, I do not believe in any way, shape or manner that he is the only person involved in this attack on Congress and the American people," Leahy told FBI Director Robert S. Mueller III at a hearing yesterday. "I believe there are others involved, either as accessories before or accessories after the fact. I believe that there are others who can be charged with murder."Noting that GOP senator and former prosecutor Arlen Specter joined Leahy in aggressively discounting the FBIs claims, telling Mueller that the case wouldn't pass muster in a criminal trial, Glenn Greenwald at Salon summed up the import of the hearing:
Indeed, it does!The bottom line is that it is quite extraordinary that the FBI has claimed it has identified with certainty the sole culprit in the anthrax attacks, but so many key Senators, from both parties, simply don't believe it, and are saying so explicitly. Leahy's rather dark suggestion that there were others involved in these attacks -- likely at a U.S. Army facility or key private CIA contractor -- is particularly notable. It has been crystal clear from the beginning that the FBI's case is filled with glaring holes, that their thuggish behavior towards their only suspect drove him to commit suicide and thus is unable to defend himself, and yet, to this day, the FBI continues to conceal the evidence in its possession and is stonewalling any and all efforts to scrutinize its claims.
It takes a lot for Senators from both parties to so openly and explicitly say they don't believe the FBI's definitive accusations in such a high-profile case.
These matters can get particularly dicey for the FBI when a primary crime victim is also the chair of the Senate Judiciary Committee! Rightly or wrongly, Leahy's in a position to insist that they show their work when otherwise, clearly, they'd rather call the case closed and forget about it.
See prior, related Grits posts:
Blogger wants Collin County to follow Dallas in reviewing capital cases
Upon observing that Dallas County District Attorney Craig Watkins this week told the press he wanted to re-examine about 40 death penalty cases from Dallas County, Bill Baumbach at the Collin County Observer said the Charles Hood and Michael Blair cases show a similar review is needed in his county, offering this blog-cry in the wilderness about the damage recent incidents have caused to pubic confidence in the courts:
While I share Baumbach's sentiment that these cases show something may be deeply wrong with Collin County justice, asking John Roach to review these cases is a lot different from Craig Watkins doing it in Dallas. There are reviews and then there are reviews.
One facet of Watkins decision I found interesting was when the man he beat in the DA's race, Republican Toby Shook, complained to the Dallas News, "Perhaps he hasn't thought this through, but essentially what he's saying is, 'There is one more court of appeal and that's me."
That's a clever way to phrase it, but it's not really what's happening. The DA has a role in when executions get set and his office is exercising its prerogative. Instead, Watkins is issuing a no-confidence vote on the work of his predecessors at the Dallas DA's office, including Shook, in light of the rising tide of successful actual innocence claims.
Michael Blair's exoneration shows that even in death penalty cases the system can make mistakes and get the verdict 100% wrong, with appellate courts routinely approving even obvious mistakes. Watkins is right to want to identify and correct any errors before they become irreversible.
Collin County is well known for its no-nonsense harsh sentences and vigorous prosecution of evil doers. Unfortunately, it appears that, at least some of the time, our zeal to convict has overrun our sense of justice.Beyond those high-profile cases, he said, "Judicial and prosecutorial zeal has caused the recusal of another Collin County judge in the case of Mark Bell," an incident I hadn't heard about.Our notion that all defendants are innocent until proven guilty in a fair trial is one of the glues that holds our society together. Most of us don't fear our courts, because we are confident that even if we are wrongly charged, the truth will prevail.
When that confidence is lost, we no longer live under the rule of law, but the rule of men - men who wish us harm.
In a letter to DA Roach on the Hood case, Texas Attorney General Greg Abbott wrote, "... a death sentence is most serious and solemn act of any state. The impartiality of a defendant's trial and conviction must be beyond reproach."
As important as the notion of a fair trial is the unavoidable problem that when an innocent man is convicted, a guilty criminal is left free to commit new crimes - to hurt more victims.
While I share Baumbach's sentiment that these cases show something may be deeply wrong with Collin County justice, asking John Roach to review these cases is a lot different from Craig Watkins doing it in Dallas. There are reviews and then there are reviews.
One facet of Watkins decision I found interesting was when the man he beat in the DA's race, Republican Toby Shook, complained to the Dallas News, "Perhaps he hasn't thought this through, but essentially what he's saying is, 'There is one more court of appeal and that's me."
That's a clever way to phrase it, but it's not really what's happening. The DA has a role in when executions get set and his office is exercising its prerogative. Instead, Watkins is issuing a no-confidence vote on the work of his predecessors at the Dallas DA's office, including Shook, in light of the rising tide of successful actual innocence claims.
Michael Blair's exoneration shows that even in death penalty cases the system can make mistakes and get the verdict 100% wrong, with appellate courts routinely approving even obvious mistakes. Watkins is right to want to identify and correct any errors before they become irreversible.
Missing ATF laptops bigger concern than stolen guns
Federal ATF agents misplaced 76 firearms and hundreds of laptops in the last five years according to a recent audit, AP reports. While we see weapons at police agencies show up missing rather frequently, I'm especially interested in what's becoming an even more widespread problem of lost or stolen law enforcement laptops, in this case at ATF. Most went unreported and nobody knows whether they contained critical case information, identities of informants or undercover agents, or just downloaded porn:
That's a bigger deal than the missing guns, IMO. Crooks can buy firearms anywhere, but information compiled on an ATF investigator's computer might be a particularly valuable commodity.
Nobody knows for sure if any of these laptops fell into the hands of organized crime, but at least two of the guns wound up in the hands of crooks:
RELATED: From Bruce Schneier, "UK Ministry of Defense loses memory stick with military secrets."
ATF employees did not report 13 of the 76 lost weapons, or 365 of the 418 missing laptops, to internal affairs as required. ATF officials also did not report much of the lost equipment to the Justice Department.A few years ago a DEA agent had a laptop stolen containing personal information about 100 confidential informants and thousands of pages of internal case files. That could have also happened with ATF, except that auditors have no idea what was on 95% of the missing laptops.Investigators could not conclude what was on 398 of 418 missing laptops — except that few were encrypted. That means any sensitive material on the laptops could have been exposed.
Moreover, "we found that ATF did not regularly attempt to determine whether the lost, stolen or missing laptop computers contained sensitive or classified information," the audit said.
That's a bigger deal than the missing guns, IMO. Crooks can buy firearms anywhere, but information compiled on an ATF investigator's computer might be a particularly valuable commodity.
Nobody knows for sure if any of these laptops fell into the hands of organized crime, but at least two of the guns wound up in the hands of crooks:
Two weapons reported stolen were used to commit crimes. In one instance, a gun was stolen from an ATF car parked outside the agent's home and later used to shoot through the window of another residence, the audit found. In the other, a stolen ATF gun was taken from a burglary suspect.So if some of the weapons wind up in the hands of criminals, it's a good bet the same is true for at least some percentage of ATF's missing laptops.
RELATED: From Bruce Schneier, "UK Ministry of Defense loses memory stick with military secrets."
Exoneration shows sex offender registration based on faulty premise
During the legislative process when it first passed, Texas' sex offender registration statute was dubbed "Ashley's Law," named after 7-year old Ashley Estell who was raped and murdered in Collin County in 1993. Authorities at the time decided a man named Michael Blair committed the crime, targeting him in part because he'd been convicted previously of a sex offense.
As it turned out, though Blair was no angel, he had nothing to do with Ashley Estell's death. DNA tests this year cleared Blair - who had been sent to death row for the crime - and identified a culprit who died ten years ago without ever being prosecuted for the offense. This week the courts finally dismissed the case against Blair, reports AP. (Though leaving death row he remains in prison for other offenses he admitted to while behind bars.)
The collapse of the case against Blair shows the wrong thinking behind modern sex offender registration laws, which make public information about offenders' past criminal history and portray this as having predictive value as to whether people should fear them. As in Blair's case, though, that can backfire if sex offender registration causes police and the public to develop a "round up the usual suspects" mentality.
The premise behind Texas' sex offender registration laws was that if Ashley's family could have known about Blair's past they could possibly have better protected their child. Except that since Blair didn't do it, his case instead shows how widely distributing that knowledge can lead to wrongful persecution and prosecution. As a result, the real killer was never held accountable. As I've written previously, "to the extent [Texas' registration] laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception."
The worst part: That error produces more crime and more victims. Research shows that sex offender registration can increase recidivism for those on the registry "by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive."
DNA evidence has been an incredibly valuable tool, not only for solving old cases but providing a window onto a variety of common errors in the justice system from faulty eyewitness ID procedures to unregulated use of informants and shoddy forensic techniques. With Blair's case we can add the premises behind sex offender registration laws to the list of errors identified post facto thanks to DNA evidence.
As it turned out, though Blair was no angel, he had nothing to do with Ashley Estell's death. DNA tests this year cleared Blair - who had been sent to death row for the crime - and identified a culprit who died ten years ago without ever being prosecuted for the offense. This week the courts finally dismissed the case against Blair, reports AP. (Though leaving death row he remains in prison for other offenses he admitted to while behind bars.)
The collapse of the case against Blair shows the wrong thinking behind modern sex offender registration laws, which make public information about offenders' past criminal history and portray this as having predictive value as to whether people should fear them. As in Blair's case, though, that can backfire if sex offender registration causes police and the public to develop a "round up the usual suspects" mentality.
The premise behind Texas' sex offender registration laws was that if Ashley's family could have known about Blair's past they could possibly have better protected their child. Except that since Blair didn't do it, his case instead shows how widely distributing that knowledge can lead to wrongful persecution and prosecution. As a result, the real killer was never held accountable. As I've written previously, "to the extent [Texas' registration] laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception."
The worst part: That error produces more crime and more victims. Research shows that sex offender registration can increase recidivism for those on the registry "by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive."
DNA evidence has been an incredibly valuable tool, not only for solving old cases but providing a window onto a variety of common errors in the justice system from faulty eyewitness ID procedures to unregulated use of informants and shoddy forensic techniques. With Blair's case we can add the premises behind sex offender registration laws to the list of errors identified post facto thanks to DNA evidence.
Wednesday, September 17, 2008
Dallas nixes verified response for commercial burglar alarms
The Dallas City Council earlier this month last year foolishly rejected Police Chief David Kunkle's highly successful initiative to require verification for commercial burglar alarms before sending police to respond. Mayor Tom Leppert pushed the council to vote 10-4 to overturn the nearly two-year old policy, despite the fact that it saved the department money, reduced fines on local businesses and enabled DPD to improve other services, all while burglaries declined.
More than 97% of commercial alarms in Dallas turn out to be false and of those that are real police almost never arrive in time to catch anyone in the act. For home alarms that figure is even higher.
Burglar alarm services sold by private companies are a classic example of "security theater." They make people feel safer but don't make it any less likely your home will be burglarized or that police will catch the person who robbed you.
What's more, the business model schlepps actual costs of providing the service onto taxpayers who pay for the cops who show up and mill around after each alarm goes off. The security company does nothing for their income but install the alarm system and call 911 when it's activated.
Bottom line: 911 is for emergencies and burglar alarms almost never qualify as such, but in many jurisdictions they're the single most common type of police service call.
According to the Dallas News ("Dallas police to respond to business burglar alarms," Sept. 7):
Mayor Tom Leppert said, "We've got to be concerned about the policy and the wider message it sends." But what message is that, exactly? To me it's basically, "We'd rather make the general public less safe in order to subsidize private alarm companies who profit from selling fear instead of using police resources for fighting crime."
Is that really the message they want to be sending?
CORRECTION: The original post mistakenly said this change was made earlier this month. In fact, Dallas' verfied response ended one year ago and the Dallas News blog post I was reacting to was reporting, instead, on a new proposal by Dallas to ask the Legislature to give cities authority to fine people after the first false alarm. Sorry about the mixup.
UPDATE: A reader sent me data on Salt Lake City's verified alarm system, which appears to work great and save the city a lot of money. According to a handout from the Salt Lake PD I received via email:
More than 97% of commercial alarms in Dallas turn out to be false and of those that are real police almost never arrive in time to catch anyone in the act. For home alarms that figure is even higher.
Burglar alarm services sold by private companies are a classic example of "security theater." They make people feel safer but don't make it any less likely your home will be burglarized or that police will catch the person who robbed you.
What's more, the business model schlepps actual costs of providing the service onto taxpayers who pay for the cops who show up and mill around after each alarm goes off. The security company does nothing for their income but install the alarm system and call 911 when it's activated.
Bottom line: 911 is for emergencies and burglar alarms almost never qualify as such, but in many jurisdictions they're the single most common type of police service call.
According to the Dallas News ("Dallas police to respond to business burglar alarms," Sept. 7):
The Dallas City Council should be going the other direction, requiring verified response for home alarms as well. Instead their decision will reduce police coverage and increase response time for more serious calls. I'm sure the Dallas Council isn't planning to hire more officers to make up the difference.Wednesday's vote comes 21 months after the council voted 8-5 to institute verified response for businesses, with Mayor Laura Miller arguing: "I believe in the chief. This makes sense."
With the repeal, Mr. Leppert, who took office in June, scored his first major political victory on a contentious item before the council.
As recently as last week, Mayor Pro Tem Elba Garcia said she believed she had enough votes to reaffirm verified response, which Mr. Leppert placed on the council's agenda for a vote.
But Mr. Leppert persuaded council colleagues who remained undecided earlier this month to ultimately repeal the policy.
The policy shift also is redemption for a local alarm industry that's relentlessly lobbied council members since verified response became law in Dallas.
Dr. Garcia decried Wednesday's decision, saying it hurls Dallas back to the situation it found itself in earlier this decade, when hundreds of police officer work hours were wasted responding to false burglar alarms.
"Today's choice is whether we back up our chief of police and the Dallas Police Department and continue to prepare to protect citizens from harm, or we cave in to the alarm industry," Dr. Garcia said.
"It's about the utilization of a scarce resource," District 5 council member Vonciel Jones Hill said. "Verified response has worked the way it was intended to work. It does not make sense to continue to send a scarce resource to false alarms when we have higher priorities."
District 14 council member Angela Hunt said: "Our police chief helped us use our scarce resources ... to their highest and best use. Why are we taking them off the street? Why are we taking them out of our neighborhoods to cater to false alarms? We should listen to [Chief Kunkle's] guidance and not be swayed by politics."
Between February 2006 and March 2007, Dallas experienced a 45 percent reduction in burglar alarm calls and redirected $1.56 million in manpower costs previously spent on responding to false alarms to other work, according to the city staff's briefing to the council. It also noted that fees charged for false alarms decreased by $1.19 million.
Business burglaries declined by 0.6 percent during a one-year period that ended Feb. 28, according to the presentation to the council.
Dr. Garcia offered a substitute motion to shelve Wednesday's vote and direct the council's newly constituted Public Safety Committee, of which she is chairwoman, to further study verified response.
But her motion failed, and Mr. Leppert called for a vote on the original motion.
The council's decision is effective Oct. 1.
Mayor Tom Leppert said, "We've got to be concerned about the policy and the wider message it sends." But what message is that, exactly? To me it's basically, "We'd rather make the general public less safe in order to subsidize private alarm companies who profit from selling fear instead of using police resources for fighting crime."
Is that really the message they want to be sending?
CORRECTION: The original post mistakenly said this change was made earlier this month. In fact, Dallas' verfied response ended one year ago and the Dallas News blog post I was reacting to was reporting, instead, on a new proposal by Dallas to ask the Legislature to give cities authority to fine people after the first false alarm. Sorry about the mixup.
UPDATE: A reader sent me data on Salt Lake City's verified alarm system, which appears to work great and save the city a lot of money. According to a handout from the Salt Lake PD I received via email:
The Verified Response ordinance became effective on December 1, 2000. Our department immediately experienced an unprecedented 90% reduction in alarm responses. Past efforts to reduce the volume of false alarms through permits, warnings, fines and suspensions had only a modest effect. Police response to alarms was most effective and efficient when it was first verified that alarm activation was indicative of suspicious activity. Private security guards are ideally suited to make this initial verification. Police continue to respond to human-activated alarms such as robbery, panic and duress which continue to be 99% false.
In the first year, Verified Response freed 8,482 officer hours which could then be redirected to other police priorities and also saved $508,920 in associated personnel costs. ...
Verified Response has been a win-win for our citizens and our department. Due to the low priority of alarm signals, private guard response time to alarm activations has been much quicker than police response. Police have been able to reduce the response time to high priority emergency calls, including panic, robbery and duress alarms, by nearly one minute. Most citizens will pay as little as an additional $5 per month on their monitoring account for guard response, rather than the former $100 false alarm fines. Most importantly, our officers were able to redirect time spent on answering false alarm signals to other public safety concerns.
Major Gulf Cartel Bust
The Dallas News Crime Blog brings welcome news that:
Today's arrests also contained an Italian connection. According to the USDOJ press release:
It remains to be seen what kind of dent this makes in Gulf Cartel operations or whether their competitors move in to take over their turf.
A 15-month investigation cracking down on one of Mexico's largest drug cartels resulted in the arrests of 175 suspects yesterday and today, 22 of them in North Texas.One wonders if these North Texas arrests are related in any way to the Gulf Cartel snitch found working in a Collin County constable's office earlier this year?So far, Project Reckoning has led to more than 500 arrests and the seizure of $60 million and more than 40 tons of drugs, U.S. Attorney General Michael Mukasey announced today.
Those indicted include three alleged leaders of the Gulf cartel: Ezequiel Cardenas-Guillen, Heriberto Lazcano-Lazcano (right) and Jorge Eduardo Costilla-Sanchez. ...
The international investigation was centered in Atlanta, but attorneys in the Northern District of Texas are handling some of the cases. More details on the local efforts to come.
Today's arrests also contained an Italian connection. According to the USDOJ press release:
Today’s operation also involved significant cooperation from Italy, for which I thank Dr. Gratteri. Among those charged in today’s indictments are members of an organized crime group based in Calabria, Italy, who allegedly sold cocaine supplied by the Gulf Cartel via New York. The Italian government’s firm commitment to combat drug trafficking is evident in the success of this operation.I remain convinced that these multinational smuggling operations are a greater threat to US security than any Muslim terrorist, certainly for us here in Texas. The cartels have gone far beyond drugs to smuggling every type of black market contraband from crop pickers to sex workers to Asian porn, stolen cigarettes and anything else someone wants to sneak across the border.
It remains to be seen what kind of dent this makes in Gulf Cartel operations or whether their competitors move in to take over their turf.
Disbarment is readers' preferred punishment for lovebird judge and DA
Grits' week-long reader poll has ended and the results are in regarding what should be the punishment for Judge Verla Sue Holland and former Collin County DA Tom O'Connell, the pair of legal lovebirds from Collin County whose adulterous, years-long affair has left hundreds of cases in question.
One third of Grits readers, 33%, thought they should face criminal prosecution, while 45% said they should be disbarred. Only 15% said a public reprimand would be sufficient, while 6% said there should be no punishment because "it was a long time ago."
I personally voted with the group who believes Holland and O'Connell should be disbarred; in a past era I might even approve if they were tarred, feathered, and run out of town on a rail. But I see no sense in wasting a dime of taxpayer money to prosecute the pair.
An AP story today shows Grits readers aren't alone in finding the judge and prosecutor's behavior almost inconceivably stupid and harmful:
One third of Grits readers, 33%, thought they should face criminal prosecution, while 45% said they should be disbarred. Only 15% said a public reprimand would be sufficient, while 6% said there should be no punishment because "it was a long time ago."
I personally voted with the group who believes Holland and O'Connell should be disbarred; in a past era I might even approve if they were tarred, feathered, and run out of town on a rail. But I see no sense in wasting a dime of taxpayer money to prosecute the pair.
An AP story today shows Grits readers aren't alone in finding the judge and prosecutor's behavior almost inconceivably stupid and harmful:
Legal experts are harshly criticizing a former judge and an ex-Texas prosecutor, saying their alleged sexual affair while handling cases together represents a black eye to the system."It's such incredible bad judgment because it throws every conviction into doubt," said Fred Moss, a Southern Methodist University law professor.
An apparent open secret 20 years ago in Collin County legal circles, the alleged affair became part of the public record again last week. ...
About 30 former prosecutors and federal and state judges have already signed a letter sent to Gov. Rick Perry arguing the alleged relationship had to be considered when it came to Hood, convicted in 1990 of fatally shooting two people in Plano.
The letter states that a sexual relationship, which Hood's lawyers say the judge and prosecutor acknowledged under oath during depositions last week, "would have had a significant impact on the ability of the judicial system to accord Mr. Hood a fair and impartial trial." ...
"The appearance of impropriety is absolutely there and it does affect the integrity of the system," said Rick Hagen, president of the Texas Criminal Defense Lawyers Association. "And you can't deny that." ...
Neither Holland nor O'Connell have been publicly disciplined by the State Commission on Judicial Conduct or the State Bar of Texas. ...
Moss said he expects the appeals court to find a reason to grant a new trial for Hood, who was convicted of killing a 26-year-old former dancer and her 46-year-old boyfriend.
"What it does is bring the whole system into question," Moss said. "It's a real black eye to the system and very unfortunate. It shakes the confidence of the public in the criminal justice system."
All that said, Grits reader poll question asked only what SHOULD happen to Holland and O'Connell. If asked what WILL happen, my own prediction would be "nothing." No public reprimand, much less disbarment, and no prosecutor will ever even crack the lawbooks looking for possible charges. The Court of Criminal Appeals will grant Hood relief based on other grounds, if I had to predict, conveniently avoiding any formal inquiry that would further embarrass their former colleague.
Maybe that's too cynical, but how cynical was it for the judge and DA to remain mum about their affair hoping Hood would be executed to cover up their misconduct? In an environment where this kind of behavior is blatantly tolerated at the courthouse and overlooked in the appellate courts on a death penalty case, I'm not sure you can be too cynical. I'd love to be proven wrong.
Galveston jail unprepared for Ike aftermath
When the Galveston Sheriff chose to make jail inmates and deputies ride out Hurricane Ike despite warnings to evacuate or face "certain death," the justification was that the jail was on high ground and built to withstand hurricane force winds.
That overlooked two important factors: First, the main risk was flooding; fortunately the worst of Ike barely missed Galveston, but here's the official pre-storm prediction of how a worst-case scenario would have engulfed the jail along with the rest of the island had it happened. (The blog Facing South has an update including post-storm pictures of the jail released yesterday by the Sheriff.)
Second, and this is the problem they're struggling with now - once the storm has passed the jail is stranded in a disaster area with no electricity, running water or working toilets, reported the Houston Chronicle:
Galveston officials are complaining to the press that FEMA hasn't reacted quickly enough to bail them out of their bad decision, but FEMA didn't force the Sheriff to keep his jailers and inmates on the island contrary to evacuation warnings, particularly when his jail doen't have sufficient generators to keep the lights on or air circulation flowing.
Staying on the island wasn't a very wise choice on the Sheriff's part. As I wrote on Friday, many Galveston inmates were sitting in jail awaiting trial or for low-level offenses who could have been released if the county had planned ahead. The rest should have been moved, just like they did with TDCJ inmates and at other coastal jails. Although the threat from the storm has passed, Galveston Island remains essentially uninhabitable and everyone pretty much knew it would be that way at the time the Sheriff made the decision not to move the inmates.
That overlooked two important factors: First, the main risk was flooding; fortunately the worst of Ike barely missed Galveston, but here's the official pre-storm prediction of how a worst-case scenario would have engulfed the jail along with the rest of the island had it happened. (The blog Facing South has an update including post-storm pictures of the jail released yesterday by the Sheriff.)
Second, and this is the problem they're struggling with now - once the storm has passed the jail is stranded in a disaster area with no electricity, running water or working toilets, reported the Houston Chronicle:
"We've been trying to get some power hooked up inside the justice center," [jail architect Dudley] Anderson said. "There's a small one in there now, but they need power." ...It's certainly good news that no one was hurt during the storm at the jail, but that still doesn't make leaving the inmates there a good idea and this story shows why. Just like after Hurricane Katrina, the devastating aftermath in Galveston will continue for quite a while after the storm surge has officially passed. Any idiot could have predicted there would be no electricity and a "lack of water and properly working toilet facilities" at the jail. (A local church is providing charity packages for jailers, but not for inmates.)
Anderson said the only generator in the jail this morning was supplying a small operator area. He had another generator ready to help a bit with air flow, but the large generators expected from the federal government are what he's frustrated about. ...Anderson said that, without air circulating in the closed facility in this climate, mold and mildew can start growing everywhere. The lack of water and properly working toilet facilities exacerbates the problem, he said. ...
Anderson said that, despite his frustration, he has had cooperation from two fronts: the weather and the inmates.
He said some of the inmates helped him repair the small generator that works in the control area.
And, he said, without the good weather these past few days, the jail area would be in a far worse situation.
Galveston officials are complaining to the press that FEMA hasn't reacted quickly enough to bail them out of their bad decision, but FEMA didn't force the Sheriff to keep his jailers and inmates on the island contrary to evacuation warnings, particularly when his jail doen't have sufficient generators to keep the lights on or air circulation flowing.
Staying on the island wasn't a very wise choice on the Sheriff's part. As I wrote on Friday, many Galveston inmates were sitting in jail awaiting trial or for low-level offenses who could have been released if the county had planned ahead. The rest should have been moved, just like they did with TDCJ inmates and at other coastal jails. Although the threat from the storm has passed, Galveston Island remains essentially uninhabitable and everyone pretty much knew it would be that way at the time the Sheriff made the decision not to move the inmates.
Tuesday, September 16, 2008
A closer look at the 'Missouri model' for juvie corrections
During the height of last year's debates over what should happen at the Texas Youth Commission, the state of the art best practices legislators were most often encouraged to follow - including by a "blue ribbon commission" appointed by the Governor - came from the "Missouri model," which was used as a catch phrase to describe a range of reforms that generally promoted smaller facilities and more therapeutic, less prison-like approaches.
Since that time reforms in Texas have moved a long way from the Missouri model, but the St. Louis Post Dispatch offered a story to at least remind us of what Texas should be aiming for ("Missouri leads nation in juvenile justice reform," Sept. 13). The approach at first blush sounds like it would be criticized reflexively as "soft on crime," except that it achieves anti-recidivism results that won over even the most hard-nosed cynics in Missouri. Reports the Post-Dispatch, tracking the story of a single inmate:
TYC is at least lurching toward smaller facilities, to some extent, but not as small as the ones in Missouri, except for a few halfway houses, and not with the same therapeutic approach. And if TYC caseloads increase, the pressure to revert to larger facilities to warehouse delinquent youth could become overwhelming.
All this to say, the Missouri model may be too lofty a goal for Texas to reasonably strive for in the current environment, but reading this Post-Dispatch story will at least give readers a sense of what Texas' best experts (pdf) told the Lege they should be shooting for during the 80th Legislature, whether or not it's achievable.
Since that time reforms in Texas have moved a long way from the Missouri model, but the St. Louis Post Dispatch offered a story to at least remind us of what Texas should be aiming for ("Missouri leads nation in juvenile justice reform," Sept. 13). The approach at first blush sounds like it would be criticized reflexively as "soft on crime," except that it achieves anti-recidivism results that won over even the most hard-nosed cynics in Missouri. Reports the Post-Dispatch, tracking the story of a single inmate:
Instead of being imprisoned like a criminal, he became a kid again.It took political courage, initially, to launch the Missouri program, but now that it's been in place for a while, the numbers tell the tale: Their recidivism rates were just 8% over three years compared with 30% in Maryland, which has a similar sentencing scheme and more traditional youth prisons like Texas.
Instead of cell bars and handcuffs, he was given a tidy dorm room, stuffed animals and even a pet turtle. Instead of shame, he was given group therapy, school work, job training and a support group of 10 peers led by a therapist — not a prison guard.
It is that approach to juvenile delinquency, dubbed the "Missouri Model," that garnered the Missouri Division of Youth Services last week the 2008 Annie E. Casey Innovations Award in Children and Family System of Reform. The award, administered by Harvard University's Kennedy School of Government, comes with a $100,000 prize to promote the model.
Judges commended the program for its staying power, its current push to link its programs with community advisory boards and its growing influence on juvenile justice nationwide.
So far, Missouri has hosted visitors from 30 states seeking to overhaul juvenile systems in which recidivism and suicide rates are high, and where youths are often written off as hardened criminals.
TYC is at least lurching toward smaller facilities, to some extent, but not as small as the ones in Missouri, except for a few halfway houses, and not with the same therapeutic approach. And if TYC caseloads increase, the pressure to revert to larger facilities to warehouse delinquent youth could become overwhelming.
All this to say, the Missouri model may be too lofty a goal for Texas to reasonably strive for in the current environment, but reading this Post-Dispatch story will at least give readers a sense of what Texas' best experts (pdf) told the Lege they should be shooting for during the 80th Legislature, whether or not it's achievable.
On jailhouse snitches and access to courts for non-DNA innocence claims
A long list of DNA-based exonerations in recent years have overturned the convictions of innocent people locked up in prison, sometimes for decades. The reasons are pretty consistent - mistaken witness identification, faulty forensic evidence, prosecutors withholding exculpatory evidence, false confessions, and lying snitches cause the bulk of cases where innocents are convicted.
But DNA evidence exists in just 10% of violent crimes and even more rarely in other cases. And while Texas law allows for post-conviction DNA testing if the evidence exists, there's no mechanism for evaluating innocence in non-DNA cases where these same problems arise.
A situation involving a mendacious jailhouse snitch out of Orange, Texas shows how such cases play out when DNA evidence doesn't exist to prove innocence to a certainty. KPRC-Channel 2 in Houston recently told the story of Daniel Meehan (Sept. 4) whose 1998 conviction and 99-year sentence was based in part on testimony by an informant who now says he lied to get his own cases dismissed and that prosecutors told him what to say:
Given what we know about how and how often innocent Texans are convicted, the current system is too restrictive on non-DNA based writs alleging actual innocence. That aspect of the law needs significant changes to be fair to the falsely convicted. Virginia recently created such a process and its first actual innocence writ in a non-DNA case was granted in August.
Regarding jailhouse snitches, the Justice Project recently came out with a study (pdf) on the problem and suggested these reforms, all of which would require legislative action:
But DNA evidence exists in just 10% of violent crimes and even more rarely in other cases. And while Texas law allows for post-conviction DNA testing if the evidence exists, there's no mechanism for evaluating innocence in non-DNA cases where these same problems arise.
A situation involving a mendacious jailhouse snitch out of Orange, Texas shows how such cases play out when DNA evidence doesn't exist to prove innocence to a certainty. KPRC-Channel 2 in Houston recently told the story of Daniel Meehan (Sept. 4) whose 1998 conviction and 99-year sentence was based in part on testimony by an informant who now says he lied to get his own cases dismissed and that prosecutors told him what to say:
Despite the strong circumstantial evidence he was the killer, Meehan maintained he did not do it. In 1998, he pled not guilty and the case went to trial inside an Orange County courtroom."It's unsurprising Meehan can't find relief in this instance, which raises broader questions about whether adequate access to the courts exists for innocent people who've been wrongfully convicted. Without DNA evidence to back up Harris' recantation, the law seldom allows people in Meehan's position another bite at the apple. Indeed, before 2001 when the Lege established rights to post-conviction DNA testing, even those cases had trouble making it back into court. But we know the same kinds of faulty evidence were used in cases, like Meehan's, where no DNA evidence exists.
About that time, their star witness came along that kind of saved the day for them is what it seemed like," said Meehan. "Because he seemed to be their case."He was Gary Harris -- a fellow inmate inside the Orange County jail.
When District Attorney John Kimbrough called Harris to the stand, Harris testified Meehan had confessed to the murder behind bars -- describing how he shot his girlfriend point-blank, saying, "I can't have her, no one can."
"When he looked at the jury and said that statement, you know, it blew me away," Meehan said. "It really did. I was 31 years old and I was thinking, 'My life is over.'"The jury convicted Meehan after deliberating less than half an hour.
Ten years later, inside a newly filed criminal appeal, Harris says his testimony was all a lie. Meehan believes it should change the decision that put him in prison for the rest of his life."All these years I've explained to them that one day the truth is going to come out and there's going to be some surprised people," said Meehan. "That's what I hope this is."
"He (Kimbrough) said you do this for us and we will help you," Harris said on a recorded phone call last year from jail included in the court documents. "They had a case, but it was very weak. He said he need a conviction and he needed it bad."Harris has been a career criminal before and after his testimony 10 years go.
Now, Harris says not only did he lie about Meehan's murder confession, Harris describes specific meetings with Kimbrough and his investigators that helped fabricate his testimony.
"He elaborated that he was new in his career as district attorney and this would make him look real good in everyone's eyes," Harris said on the recorded call. "It was his first murder trial and he wanted a conviction."Harris claims Kimbrough's team met with him in the DA's office for two hours and spelled out specific details of the crime. Harris claims they even told him exactly what to say.
"They said to make it even sweeter, that I want you to put in one last detail. He said, 'I want you to look dead at the jury and tell them that Danny told you, if he couldn't have her, then nobody else could have her,'" he said.
Court papers show three of Harris' relatives say Harris also told them about making up the jailhouse confession.
Records show Harris was released from jail days after his testimony. The charges against him were dismissed."When the prosecutor put Gary Harris on the stand, he said you can't take a check from this guy, but you can believe what he's saying here today," Meehan said. "I'm curious what John Kimbrough would say now."
Kimbrough initially told us the evidence was strong enough even without Harris' jailhouse testimony. However, Kimbrough later denied repeated requests from Local 2 Investigates for an interview.
Local 2 legal analyst Brian Wice says Harris' testimony itself does bring up serious questions."My take in almost three decades of practicing criminal defense law is that you see jail house snitches by and large when the prosecution has to throw a 'Hail Mary', when they have a borderline case," Wice said. ...
Despite the recanted testimony, Wice and other legal experts we spoke with say the chances of a court ordering a new trial is slim.They all say it usually take new physical evidence like DNA or fingerprints to be convincing enough to force a new hearing.
Meehan's appeal has been denied by Kimbrough's office and the trial judge in his original case. Meehan's appeal is now sitting with the Texas Court of Criminal Appeals.
Given what we know about how and how often innocent Texans are convicted, the current system is too restrictive on non-DNA based writs alleging actual innocence. That aspect of the law needs significant changes to be fair to the falsely convicted. Virginia recently created such a process and its first actual innocence writ in a non-DNA case was granted in August.
Regarding jailhouse snitches, the Justice Project recently came out with a study (pdf) on the problem and suggested these reforms, all of which would require legislative action:
The Justice Project’s Recommendations for Improving
Standards for Admissibility of Accomplice and Snitch Testimony
Standards for Admissibility of Accomplice and Snitch Testimony
- Required mandatory, automatic pretrial disclosures of information related to jailhouse snitch testimony, including witness compensation arrangements and other information bearing on witness credibility.
- Mandated pretrial hearings on the reliability testimony in cases where the prosecution intends to employ a jailhouse snitch.
- A requirement that jailhouse snitch testimony be corroborated.
- Cautionary jury instructions alerting the jury to the reliability issues presented by snitch testimony.
Monday, September 15, 2008
FBI: US crime down overall in 2007
The FBI issued its annual report on crime data today; see their web page devoted to the new data. Let's walk through a few highlights from the topline numbers. Bottom line, reported crime last year was down across the board:
It should be mentioned that national crime data are fairly flawed. Not all information gets reported. And year to year fluctuations may not mean much or necessarily depict a long-term trend. Still, less crime reported on its face must be be considered good news.
Though crime rates are declining overall, it's not necessarily because police are solving more crimes. Clearance rates remained low: "Nationwide in 2007, law enforcement cleared 44.5 percent of violent crimes and 16.5 percent of property crimes by arrest or exceptional means." The highest clearance rate was for murder, at 61.2% nationwide. Here's a graphic depicting clearance rates for various crimes:
I was also interested to learn that the vast majority of arrests are not for violent or property crimes: "In 2007, the FBI estimated that 14,209,365 arrests occurred nationwide for all offenses (except traffic violations), of which 597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses, a figure which seems surprisingly low to me.
Some of that can be explained by the drug war: "Law enforcement made more arrests for drug abuse violations (an estimated 1.8 million arrests, or 13.0 percent of the total number of arrests) than for any other offense." What's more, 42.1% of drug arrests were for pot possession.
Murder in large cities was predictably higher than the suburbs - towns with more than 100,000 people had a murder rate of 4.7 per 100,000, compared with 2.9 per 100,000 in towns with 25,000 to 99,999 people. But murder rates in the smallest towns were higher still, the FBI reports, with towns under 25,000 having a murder rate of 5.5 per 100,000. That also seems like a surprising outcome. Overall, 87% of murder victims knew their killer.
Texans reported 1,172 murders in 2007 and 6,853 forcible rapes, 79,103 auto thefts, and 181,502 home burglaries. See this table for city by city index crime details.
There's a lot more information and fodder for commentary in this annual report for those interested.
MORE: TalkLeft looks at the numbers and informs us that " contrary to the notion often expressed by crime warriors that there is less crime because more offenders are locked up, this Justice Policy Institute factsheet (pdf) shows the opposite: Areas with lower incarceration rates experienced greater crime reductions."
Nationwide, violent crime fell for the first time since 2005. Property crime declined for the fifth straight year. And each of the seven specific offense categories—from aggravated assault to murder—was down from 2006.DOJ created this graphic analyzing this year's overall crime trends:
It should be mentioned that national crime data are fairly flawed. Not all information gets reported. And year to year fluctuations may not mean much or necessarily depict a long-term trend. Still, less crime reported on its face must be be considered good news.
Though crime rates are declining overall, it's not necessarily because police are solving more crimes. Clearance rates remained low: "Nationwide in 2007, law enforcement cleared 44.5 percent of violent crimes and 16.5 percent of property crimes by arrest or exceptional means." The highest clearance rate was for murder, at 61.2% nationwide. Here's a graphic depicting clearance rates for various crimes:
I was also interested to learn that the vast majority of arrests are not for violent or property crimes: "In 2007, the FBI estimated that 14,209,365 arrests occurred nationwide for all offenses (except traffic violations), of which 597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses, a figure which seems surprisingly low to me.
Some of that can be explained by the drug war: "Law enforcement made more arrests for drug abuse violations (an estimated 1.8 million arrests, or 13.0 percent of the total number of arrests) than for any other offense." What's more, 42.1% of drug arrests were for pot possession.
Murder in large cities was predictably higher than the suburbs - towns with more than 100,000 people had a murder rate of 4.7 per 100,000, compared with 2.9 per 100,000 in towns with 25,000 to 99,999 people. But murder rates in the smallest towns were higher still, the FBI reports, with towns under 25,000 having a murder rate of 5.5 per 100,000. That also seems like a surprising outcome. Overall, 87% of murder victims knew their killer.
Texans reported 1,172 murders in 2007 and 6,853 forcible rapes, 79,103 auto thefts, and 181,502 home burglaries. See this table for city by city index crime details.
There's a lot more information and fodder for commentary in this annual report for those interested.
MORE: TalkLeft looks at the numbers and informs us that " contrary to the notion often expressed by crime warriors that there is less crime because more offenders are locked up, this Justice Policy Institute factsheet (pdf) shows the opposite: Areas with lower incarceration rates experienced greater crime reductions."
TYC commitments to grow dramatically despite declining juvie crime
Having analyzed on Saturday the Legislative Budget Board's incarceration projections for the adult prison system, let's take a look at LBB's projections regarding youth crime and incarceration in their five year population estimate (pdf) which is used to set agency budgets.
Regular readers know that in 2007 the Legislature took steps aimed at reducing inmate populations at the Texas Youth Commission, including shifting 19-20 year olds to TDCJ and refusing to take misdemeanants at state youth prisons. The population drop can be seen most dramatically in the number of releases. TYC released 4,375 inmates during fiscal year 2007, up from 3,554 in fy 2006. By comparison, the number of new inmates entering TYC decreased from 3,462 in fy 2006 to 2,994 in fy 2007 and an estimated 2,090 in 2008 (based on the monthly rate for the first seven months). LBB predicts the new level of intakes will hold steady at 2,090 over the next five years.
Those declines mainly represent implementation of a new law disallowing judges from sending misdemeanants to TYC, reduced lengths of stay, and reduced numbers from a handful of counties that essentially quit sending kids to the agency. Indeed, the reduced numbers allowed TYC to meet minimum staffing requirements for the first time in years.
On its face, TYC's reduced inmate population seems like it might be sustainable, particularly given that juvie crime is declining: "Texas juvenile arrest rate decreased between calendar years 2005 and 2006 (1.3 percent) following a decrease between calendar years 2004 and 2005 (8.3 percent)." Not only are arrests down, says LBB, Texas' overall juvie population is growing at a slower rate than in the past.
Even so, TYC's reduced inmate population will be shortlived unless more is done to reform the system. Today TYC operates at 6.5% below maximum capacity, and will slightly exceed max capacity in fy 2009, says LBB. But it's what happens after that which made me sit up and take notice. LBB predicts TYC's inmate population will resume fairly rapid growth in the near term, rising to 13.5% above apacity by 2010 and shooting up to 23.3% above capacity in 2012.
So the situation is this: Juvie crime is declining but total commitments to TYC will increase by about a quarter over the next four years as the agency's inmate population creeps back up toward their previous, higher levels. By contrast, LBB projects the increase in Texas' juvie probation population will be de minimus over the same period, with the number of juvie probationers overall expanding just .03% annually.
These data have significant implications for proposed TYC reforms. For starters, those like Sen. John Whitmire proposing the agency's abolition will be chagrined to see projections indicating a greater dependence on youth prisons going forward, not less of one.
That said, the adult system predicted massive overcrowding just a couple of years ago, and as discussed Saturday. reforms implemented by Sen. Whitmire and his colleagues staved off that increase for the foreseeable future by expanding treatment and diversion programs. They could do the same for TYC, but according to these data, changes implemented in 2007 failed to resolve the agency's crowding problems long term.
Regular readers know that in 2007 the Legislature took steps aimed at reducing inmate populations at the Texas Youth Commission, including shifting 19-20 year olds to TDCJ and refusing to take misdemeanants at state youth prisons. The population drop can be seen most dramatically in the number of releases. TYC released 4,375 inmates during fiscal year 2007, up from 3,554 in fy 2006. By comparison, the number of new inmates entering TYC decreased from 3,462 in fy 2006 to 2,994 in fy 2007 and an estimated 2,090 in 2008 (based on the monthly rate for the first seven months). LBB predicts the new level of intakes will hold steady at 2,090 over the next five years.
Those declines mainly represent implementation of a new law disallowing judges from sending misdemeanants to TYC, reduced lengths of stay, and reduced numbers from a handful of counties that essentially quit sending kids to the agency. Indeed, the reduced numbers allowed TYC to meet minimum staffing requirements for the first time in years.
On its face, TYC's reduced inmate population seems like it might be sustainable, particularly given that juvie crime is declining: "Texas juvenile arrest rate decreased between calendar years 2005 and 2006 (1.3 percent) following a decrease between calendar years 2004 and 2005 (8.3 percent)." Not only are arrests down, says LBB, Texas' overall juvie population is growing at a slower rate than in the past.
Even so, TYC's reduced inmate population will be shortlived unless more is done to reform the system. Today TYC operates at 6.5% below maximum capacity, and will slightly exceed max capacity in fy 2009, says LBB. But it's what happens after that which made me sit up and take notice. LBB predicts TYC's inmate population will resume fairly rapid growth in the near term, rising to 13.5% above apacity by 2010 and shooting up to 23.3% above capacity in 2012.
So the situation is this: Juvie crime is declining but total commitments to TYC will increase by about a quarter over the next four years as the agency's inmate population creeps back up toward their previous, higher levels. By contrast, LBB projects the increase in Texas' juvie probation population will be de minimus over the same period, with the number of juvie probationers overall expanding just .03% annually.
These data have significant implications for proposed TYC reforms. For starters, those like Sen. John Whitmire proposing the agency's abolition will be chagrined to see projections indicating a greater dependence on youth prisons going forward, not less of one.
That said, the adult system predicted massive overcrowding just a couple of years ago, and as discussed Saturday. reforms implemented by Sen. Whitmire and his colleagues staved off that increase for the foreseeable future by expanding treatment and diversion programs. They could do the same for TYC, but according to these data, changes implemented in 2007 failed to resolve the agency's crowding problems long term.
Sunday, September 14, 2008
Waiting for word on 1,000+ stranded at Galveston jail (Updated)
Still no word on what happened with the 1,000 inmates and their jailers stranded at the Galveston County jail during Hurricane Ike. Perhaps we may find small comfort in the notion that if full-blown tragedy had struck there it would likely have been reported by now.
However, I can still find no report from any media outlet on the stranded inmates written after the storm passed. Things must be quite a mess right now. Did the jail flood? If so, how badly? What happened at the peak of the storm?
I'm sure their electricity is out. How about potable water? Toilets? How are they being fed? Was anyone hurt? Were there any health crises during or after the storm? The Sheriff reportedly only left behind a skeleton crew to manage these responsibilities.
Did the Sheriff stay at the jail himself or just abandon his deputies and inmates and skedaddle? For that matter, did all the assigned deputies stay, or did they abandon their posts and leave the prisoners behind as happened during Katrina?
There are so many unanswered questions. Any reader with information or who sees news coverage on the topic please let us know in the comments.
Let's hope that the storm's last minute shift in course, which spared the island from Ike's greatest fury, also kept folks in the jail safe. But I'm thinking this dastardly decision cannot be allowed to stand as precedent.
After every major emergency like this we learn things that allow laws and policies to be adjusted heading into the next incident. For example, after guns were confiscated from New Orleans residents post-Katrina leaving law abiding folks at the mercy of looters and criminals, the 80th Texas Legislature passed a statute insisting that law enforcement could not confiscate weapons during an emergency.
There will be similar lessons to be learned from Hurricane Ike during the 81st Texas Legislature next spring, and one of them should definitely be to formally require jails in mandatory evacuation areas to evacuate their inmates, especially when they're kept on the first floor as is apparently the case in Galveston. TDCJ does it, and their prisoners are a lot bigger security risk than county jail inmates.
UPDATE: Good news! A Dailykos diarist who picked up the story refers us to IngeniousGirl who brings this report:
However, I can still find no report from any media outlet on the stranded inmates written after the storm passed. Things must be quite a mess right now. Did the jail flood? If so, how badly? What happened at the peak of the storm?
I'm sure their electricity is out. How about potable water? Toilets? How are they being fed? Was anyone hurt? Were there any health crises during or after the storm? The Sheriff reportedly only left behind a skeleton crew to manage these responsibilities.
Did the Sheriff stay at the jail himself or just abandon his deputies and inmates and skedaddle? For that matter, did all the assigned deputies stay, or did they abandon their posts and leave the prisoners behind as happened during Katrina?
There are so many unanswered questions. Any reader with information or who sees news coverage on the topic please let us know in the comments.
Let's hope that the storm's last minute shift in course, which spared the island from Ike's greatest fury, also kept folks in the jail safe. But I'm thinking this dastardly decision cannot be allowed to stand as precedent.
After every major emergency like this we learn things that allow laws and policies to be adjusted heading into the next incident. For example, after guns were confiscated from New Orleans residents post-Katrina leaving law abiding folks at the mercy of looters and criminals, the 80th Texas Legislature passed a statute insisting that law enforcement could not confiscate weapons during an emergency.
There will be similar lessons to be learned from Hurricane Ike during the 81st Texas Legislature next spring, and one of them should definitely be to formally require jails in mandatory evacuation areas to evacuate their inmates, especially when they're kept on the first floor as is apparently the case in Galveston. TDCJ does it, and their prisoners are a lot bigger security risk than county jail inmates.
UPDATE: Good news! A Dailykos diarist who picked up the story refers us to IngeniousGirl who brings this report:
I just talked to Deputy at the jail - here is what I learned. ... The Deputy would not give me her name, but she told me that the inmates are safe ...
Plenty of heat, food, water, and the facility is 2 years old and is safe
She also said, the jail is not flooded.
All's well that ends well, but this was still a terrible judgement by the Sheriff that shouldn't be allowed in the future. Buildings can be constructed that withstand hurricane force winds, but on barrier islands like Galveston, flooding is the biggest danger. Everyone who chose to stay, including the jailers and inmates left behind, must count themselves lucky the storm shifted course at the last minute. If it hadn't the jail could have become the site of a serious tragedy.
NUTHER UPDATE (9/15): Here's the first MSM report letting us know everybody at the jail got by okay.
Saturday, September 13, 2008
LBB: Texas' prison population will dip next year for the first time in decades before rising further
Ever since the Governor fired Dr. Tony Fabelo and abolished the state's independent criminal justice number crunchers, the Texas Legislative Budget Board assumed responsibility for issuing population projections for the adult and juvenile justice systems. These are the official data on which state agencies base their budget requests and legislative budget writers authorized the expenditure of tax dollars for the Department of Criminal Justice and the Youth Commission.
See the latest projections here (pdf - June 2008). To me this is a fascinating and useful document, and a truly interdisciplinary one. LBB has to pull data from all sorts of different agencies and sources to produce these estimates, and the methodology sections are essentially a prose description of the mathematical reasoning contained in the main section.
Prior to the 80th Legislature, LBB projected the adult system might be as much as 17,000 beds short by 2012, prompting an aggressive commitment of new funds by the Lege to divert offenders away from prison and stave off new prison building, especially since the state cannot adequately staff the facilities we've got. According to the June 2008 analysis, Texas' total prison population will actually decline slightly next year (!) for the first time in many moons because of the 2007 probation/diversion reforms, eliminating the short-term need for expensive new prison building. The total will then begin to creep back up slightly, said LBB, which projects Texas will exceed current capacity by .6% in 2013 if nothing changes, needing to find 942 more beds instead of 17,000. (Thanks Jerry Madden and John Whitmire!)
Both parole and probation revocations are down thanks the the Legislature's expansion of treatment options and intermediate sanctions facilities, LBB reports. Statewide, in FY 2007, 7.5% of felony probationers and 9.7% of parolees were revoked back to prison, which compares favorably, e.g., to revocation rates of 8.8% and 14.8%, respectively, in 2004. (Regular readers know, of course, that such gains vary widely from county to county.)
Interestingly among LBB's assumptions, just 50% of those placed in new diversion beds are assumed to be people who'd otherwise be revoked to prison. That means the Lege has created a true intermediate sanction. It's not just a program that's LESS harsh than prison, for half of those using diversion beds it's actually a HARSHER sanction than would otherwise be available.
So where does the upward pressure on incarceration come from in Texas' adult prison system? For starters, Texas recently has averaged a 6% annual growth rate recently in direct court commitments to prison, said LBB, this compared to about 2.5% annual population growth statewide over the same period. LBB's numbers assume that high rate of increase will continue. This is true, they say, even though "The crime rate declined from its peak in 1988 and has remained steady at a lower level since 2000."
Another big driver of Texas'expanding prison population is the oxymoronically named "Discretionary Mandatory Supervision" statute, which requires just a bit of explanation for the uninitiated. Prior to 1996, offenders were automatically released when their served time and good time added together equalled their sentence. The Lege eliminated mandatory release, creating the bizarrely named DMS system that still requires a parole panel to approve offenders' release. These offenders - who prior to 1996 would have all been out the door - today are released only 52.2% of the time a parole panel considers them. That means almost half of offenders who would earlier have been eligible for mandatory release are today kept in prison by the parole board.
Overall, the parole approval rate averaged over the last 5 years was 28.7%, though in FY 2009 that ticked up to 29.9%. However a bigger factor has been a slow but significant increase in the number of parolees considered for approval - with that expansion, the number of approved paroles has increased slightly, said LBB, even though the overall approval rates didn't rise that much.
In the past, LBB's projections were used like a hammer to demand approving construction of unnecessary new prison beds. These projections won't have the same usefulness to prison builders. They show diversion programs worked, that investing in them reduced reliance on prisons and created meaningful alternatives that courts are actually using.
Coming Soon: I'll discuss LBB's juvie projections and the surprising increase they predict in TYC's inmate population.
See the latest projections here (pdf - June 2008). To me this is a fascinating and useful document, and a truly interdisciplinary one. LBB has to pull data from all sorts of different agencies and sources to produce these estimates, and the methodology sections are essentially a prose description of the mathematical reasoning contained in the main section.
Prior to the 80th Legislature, LBB projected the adult system might be as much as 17,000 beds short by 2012, prompting an aggressive commitment of new funds by the Lege to divert offenders away from prison and stave off new prison building, especially since the state cannot adequately staff the facilities we've got. According to the June 2008 analysis, Texas' total prison population will actually decline slightly next year (!) for the first time in many moons because of the 2007 probation/diversion reforms, eliminating the short-term need for expensive new prison building. The total will then begin to creep back up slightly, said LBB, which projects Texas will exceed current capacity by .6% in 2013 if nothing changes, needing to find 942 more beds instead of 17,000. (Thanks Jerry Madden and John Whitmire!)
Both parole and probation revocations are down thanks the the Legislature's expansion of treatment options and intermediate sanctions facilities, LBB reports. Statewide, in FY 2007, 7.5% of felony probationers and 9.7% of parolees were revoked back to prison, which compares favorably, e.g., to revocation rates of 8.8% and 14.8%, respectively, in 2004. (Regular readers know, of course, that such gains vary widely from county to county.)
Interestingly among LBB's assumptions, just 50% of those placed in new diversion beds are assumed to be people who'd otherwise be revoked to prison. That means the Lege has created a true intermediate sanction. It's not just a program that's LESS harsh than prison, for half of those using diversion beds it's actually a HARSHER sanction than would otherwise be available.
So where does the upward pressure on incarceration come from in Texas' adult prison system? For starters, Texas recently has averaged a 6% annual growth rate recently in direct court commitments to prison, said LBB, this compared to about 2.5% annual population growth statewide over the same period. LBB's numbers assume that high rate of increase will continue. This is true, they say, even though "The crime rate declined from its peak in 1988 and has remained steady at a lower level since 2000."
Another big driver of Texas'expanding prison population is the oxymoronically named "Discretionary Mandatory Supervision" statute, which requires just a bit of explanation for the uninitiated. Prior to 1996, offenders were automatically released when their served time and good time added together equalled their sentence. The Lege eliminated mandatory release, creating the bizarrely named DMS system that still requires a parole panel to approve offenders' release. These offenders - who prior to 1996 would have all been out the door - today are released only 52.2% of the time a parole panel considers them. That means almost half of offenders who would earlier have been eligible for mandatory release are today kept in prison by the parole board.
Overall, the parole approval rate averaged over the last 5 years was 28.7%, though in FY 2009 that ticked up to 29.9%. However a bigger factor has been a slow but significant increase in the number of parolees considered for approval - with that expansion, the number of approved paroles has increased slightly, said LBB, even though the overall approval rates didn't rise that much.
In the past, LBB's projections were used like a hammer to demand approving construction of unnecessary new prison beds. These projections won't have the same usefulness to prison builders. They show diversion programs worked, that investing in them reduced reliance on prisons and created meaningful alternatives that courts are actually using.
Coming Soon: I'll discuss LBB's juvie projections and the surprising increase they predict in TYC's inmate population.
Friday, September 12, 2008
Hubris: Galveston Sheriff leaves inmates, deputies, in hurricane's path
Galveston Island residents were told to flee Hurricane Ike or face "certain death," but the Sheriff has inexplicably decided not to evacuate 1,000 prisoners from the county jail, even though serious flooding has already begun.It's bad enough to risk the inmates' lives, but downright bizarre to me that the Sheriff is willing to risk his deputies. The National Hurricane Center has predicted waves that will top Galveston's seawall potentially by several meters, which would easily flood the town. Take a look at these scary projections of how much flooding might occur if Ike does its worst.
"We did this during (Hurricane) Rita (in 2005) and no one knew until it was absolutely done," said a Sheriff's spokesman. Of course, Rita didn't hit Galveston Island directly and there was never a serious risk that it would breach the seawall. By contrast, with Ike still two hundred miles away, the surge has already raised water levels more than five feet, with 25 foot surges expected.
In 1900, more than 8,000 people died on Galveston Island after a major hurricane (pictured). The Sheriff is definitely tempting fate to take such a risk.
UPDATE (9/13): The Galveston Daily News reported last night before the storm fully hit quoting a mother who'd spoken to her son in the jail:
“He said, ‘Mom. I’m worried, scared and hungry. All of us are here cramped into this little room on the first floor. The flood waters are rising and we’re not going to evacuate.’”So from this we learn that the jail is a one-story structure, while most of the people who stayed in Galveston lived on the second or third floor, which is why they thought they'd survive widespread flooding. Besides, those folks chose to stay; inmates were put in this situation by the Sheriff. The whole thing sounds like a recipe for disaster potentially worse, even, than the abandonment of thousands of prisoners in the New Orleans jail during Katrina.
Nuzzo said her son didn’t see water in the jail, but heard it was rising on the island.
“I called but they’re not answering the phones. It’s ludicrous they left the inmates there.”
Tuttoilmondo said the jail is primarily one level. Its phones were ringing all day
The Sheriff's decision tees me off the more I think about it. If he didn't stay at the jail himself along with the prisoners and the deputies he left behind, the man frankly should be run out of town on a rail when the Hurricane is past.
I checked the most recent (Aug. 1) Galveston jail population report (pdf) which showed 1009 inmates at that time, about the same number in the jail now. The majority of them, 653, hadn't yet been convicted but were sitting in jail awaiting trial; 264 of those were charged with a misdemeanor or state jail felonies (low level drug and property crimes). The Sheriff said these prisoners couldn't be moved for security reasons, but that's a bogus claim. The truth is he could have RELEASED most of them without harming security.
NUTHER UPDATE: Officials announced at 9:30 p.m. last night that there was no Ike-related loss of life, but I can't find any reports mentioning the jail from after when the bulk of the storm hit. I found some tidal data for Galveston showing the surge - nearly eight feet above normal levels around 3 a.m. - has gone back down, thank heavens. But that's high enough to risk drowning inmates on the first floor if those floodwaters reached the jail. What security concerns could justify such a risk?
AND MORE: Still no word on the jail. There was an earlier report that six feet of water surged into the county courthouse next door, but this morning CNN reports "The storm flooded the historic district with 7 feet of water, which has since subsided to 4 feet, according to a Galveston county official. A foot of water flooded the city's main courthouse, where many people rode out the storm." If folks in the courthouse are okay, that's also a good omen, one would think, for the stranded jail inmates. Other areas of Galveston were harder hit. According to the New York Times:
[Fire] Chief Varela said flooding in the city was from 8 to 10 feet deep in some areas. On the way to a fire that his department couldn’t reach, he said he saw a pickup truck that had water over its roof.
“The low-lying neighborhoods are extremely flooded right now,” he said.
STILL NO WORD: As of this morning, Governor Perry's spokespers said she "did not know about any Ike-related deaths and did not have any information about inmates at a jail on Galveston that was not evacuated."
Commissary vendor pleads guilty to organized crime charges
I should mention after reporting how Sheriffs in Bexar and Potter Counties were hounded out of office over allegations of commissary-related bribery, prosecutors finally nailed down a conviction of one of the companies alleged to have bribed them, reported the Dallas News ("Jail food provider based in Dallas found guilty in organized crime case," Sept. 6):
The president of a Dallas company that provides food services for several jails around the state, along with the company itself, has been found guilty in the bribing of a former Potter County sheriff.
Mid-America Services Inc. will pay a $100,000 fine for engaging in organized criminal activity, according to the terms of a plea agreement finalized Friday in Collin County.
This comes a day after Robert Austin Jr., Mid-America president, pleaded guilty to a lesser charge of giving a gift to a public servant. Mr. Austin, who was accused of using bribes to obtain contracts, was sentenced to two years of probation and ordered to pay a $4,000 fine.
Potter County will receive the fines from both cases, which were moved to McKinney from Amarillo on a motion for venue change.
The guilty pleas are the culmination of a two-year investigation by the FBI into public corruption allegations against former Potter County Sheriff Michael Shumate.
A call for prosecutorial shaming
Doc Berman turns us on to a new paper by Prof. Adam Gershowitz at the South Texas College of Law which:
explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed the misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who commit serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.Gershowitz's call for a "neutral set of third parties" responsible for "publicly identifying prosecutors who commit serious misconduct" sounds like a great idea for a blog if somebody with Westlaw access wanted to undertake it.
Thursday, September 11, 2008
Most Texas gun deaths are suicides
There's an old and wise saying, "Never bring a knife to a gunfight." Perhaps a corollary to that adage should be, "Never bring a gun when you're fighting emotional demons." Reports News 8-Austin:
Here's more evidence Texas underspends on mental health treatment compared to prisons and jails, where thousands of mentally ill offenders are anyway locked up. We're justifiably concerned with a killer shooting somebody else, but from a statistical perspective that's a smaller problem than suicides. So if the goal is to minimize gun deaths, why don't government spending priorities reflect that fact?
I think some of it has to do with the political strategies described in the last post, Governing through Crime. Modern politics overprioritizes "crime, and particularly the fear of it," while ignoring social problems that may actually take more lives and cause more harm.
To their credit, this data comes from an announcement that the Austin PD and the Suicide Prevention Council are teaming up for a public ed campaign on gun suicides.There are more suicide deaths by guns in the state of Texas than gun-related homicides. ... Suicides account for nearly 57 percent of the state's gun deaths. That’s compared to 41 percent who die by homicide.
Here's more evidence Texas underspends on mental health treatment compared to prisons and jails, where thousands of mentally ill offenders are anyway locked up. We're justifiably concerned with a killer shooting somebody else, but from a statistical perspective that's a smaller problem than suicides. So if the goal is to minimize gun deaths, why don't government spending priorities reflect that fact?
I think some of it has to do with the political strategies described in the last post, Governing through Crime. Modern politics overprioritizes "crime, and particularly the fear of it," while ignoring social problems that may actually take more lives and cause more harm.
Governing through Crime
I've been hearing good things about the book Governing through Crime, by Jonathon Simon, and was interested to see this review in Governing Magazine, which actually holds Texas up as a "glimmer of hope" against the trends described in the book, which may sound familiar to regular Grits readers:
To be politically effective, elected officials believe they must be tough on crime. Simon writes, "Simply put, to be for the people, legislators must be for the victims and law enforcement, and thus they must never be for (or capable of being portrayed as being for) criminals or prisoners as individuals or as a class."
As part of the war on crime, according to Simon, "Americans have built a new civil and political order structured around the problem of violent crime. In this new order, values like freedom and equality have been revised in ways that would have been shocking, if obviously unimaginable, in the late 1960s, and new forms of power institutionalized and embraced — all in the name of repressing seemingly endless waves of violent crime." This new civil and political order is, following Simon, a modern era of "governing through crime," making crime, and particularly the fear of it, the rationale for laws and policies which have resulted in mass incarceration — over 2 million Americans in prison.
"Governing through crime" is a challenging description of the politics and administration of the so-called "carceral state." Unlike "governing crime" — the ordinary work of the police, the courts and the penal system, particularly as they deal with those who break the law — "governing through crime" is the politics and administration of mass incarceration.
Governing through crime has resulted in mass imprisonment noted by its scale, its categorical (racial) application, and its increasingly warehouse-like or waste management-like qualities. Simon says: "The distinctive new form and function of the prison today is a space of pure custody, a human warehouse or even a kind of social waste management facility. ... The waste management prison promises no transformation of the prisoner through penitence, discipline, intimidation, or therapy."
What has governing through crime done to government? "Whether one values American democracy for its liberty or its equality-enhancing features, governing through crime has been bad. First, the vast reorienting of fiscal and administrative resources toward the criminal justice system at both the federal and state levels has resulted in a shift aptly described as transformation from the ‘welfare state' to the ‘penal state.'"
There are glimmers of hope. After a decade of stunning growth in prison inmates, the Texas legislature decided it was time for a change. Drug treatment is being expanded, parole practices are being reformed, parole boards are adjusting to earlier release dates, and special drug courts are being established, all designed to slow the growth of incarceration. To reduce parole violation-based reincarceration, Kansas is making grants to community corrections agencies for parolee training and monitoring, and is setting guidelines to assist judges and officers in revocation decisions. Nevada is recalibrating good time served to reduce sentences. And, there are many other examples. Nevertheless, American penal practices are abysmal, an affront to democracy and to justice.
Reasons for PD departures explored
The Dallas Observer has a feature titled "Broken Cogs" focused on the fallout from five attorneys resigning in recent weeks from the Dallas Public Defender office as a result of high caseloads, new bureaucracy and quotas that swamped even the most productive lawyers. The story prominently features our pal Mike Howard, the former kickboxer turned public defender who recently left the PD office to launch his own law firm, and more importantly, his own blog.
RELATED:
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Latest Hood stay shows Texas CCA not adequately vetting capital cases
Rather than authorize investigation into misconduct by a former colleague, the Texas Court of Criminal Appeals instead took one for the team this week, essentially admitting with its execution stay in the Charles Hood murder case that its members flouted recent Supreme Court precedents on jury instructions when they approved Hood's execution last spring.
I fail to see how else their actions can be interpreted. They were willing to let Hood die earlier this year based on the same jury instructions they're now questioning. What changed? If they really made such a mistake, it's only by happenstance that it's not an irreparable one.
The Hood case at times feels almost like an optical illusion by M.C. Escher, with more things wrong with the picture from each new angle one examines.
To recap: Last spring the Court of Criminal Appeals declined to review allegations that trial judge Verla Sue Holland (who later served on the CCA herself with 8 current members) had been sleeping with the prosecutor during Hood's capital murder trial - what one blogger called "extreme ex parte conduct." The CCA denied Hood's last appeals and sent him off to die.
By all rights, Hood's life should have terminated that night. But thanks to delays caused by last-minute appeals to the federal courts, the Department of Criminal Justice said they could not finish the job of killing him by the 12 a.m. deadline, delaying the execution. So with the extra time, Hood's attorneys filed a civil suit seeking damages. This week, a judge finally granted depositions where Judge Holland and her paramour admitted to a long-time, secret affair in the late '80s and early '90s.
On the same day the judge and prosecutor admitted their misconduct, the Court of Criminal Appeals granted Hood a stay, but based on a separate issue about jury instructions, not the just-proven affair involving their former colleague. The blog Crime and Consequences gives this account of their reasons for the stay:
So why didn't the CCA stay the execution back then and demand the jury instructions be revisited? By staying the execution on these grounds after earlier having authorized his final execution, isn't the court essentially saying "We were prepared to kill this guy even though his jury instructions were unconstitutional?" How else can this be interpreted?
I can think of only two possible explanations for this odd and surprising move by the court: Either the CCA egregiously erred last spring by failing to accommodate Smith v. Texas, or else the court is now using this issue as a stratagem, the way an illusionist uses misdirection, to avoid revisiting their colleague's admitted misconduct. Neither reason reflects well on the court.
However one interprets it, the Charles Hood stay was an extraordinary ruling. I've heard defense lawyers and abolitionists frequently complain that under Presiding Judge Sharon Keller, the CCA allows executions without addressing major, legitimate constitutional claims. Now the CCA is basically admitting it sent someone to the death chamber with a constitutionally deficient case. I'm frankly somewhat stunned at the implications.
UPDATE: See a related editorial from the Austin Statesman.
I fail to see how else their actions can be interpreted. They were willing to let Hood die earlier this year based on the same jury instructions they're now questioning. What changed? If they really made such a mistake, it's only by happenstance that it's not an irreparable one.
The Hood case at times feels almost like an optical illusion by M.C. Escher, with more things wrong with the picture from each new angle one examines.To recap: Last spring the Court of Criminal Appeals declined to review allegations that trial judge Verla Sue Holland (who later served on the CCA herself with 8 current members) had been sleeping with the prosecutor during Hood's capital murder trial - what one blogger called "extreme ex parte conduct." The CCA denied Hood's last appeals and sent him off to die.
By all rights, Hood's life should have terminated that night. But thanks to delays caused by last-minute appeals to the federal courts, the Department of Criminal Justice said they could not finish the job of killing him by the 12 a.m. deadline, delaying the execution. So with the extra time, Hood's attorneys filed a civil suit seeking damages. This week, a judge finally granted depositions where Judge Holland and her paramour admitted to a long-time, secret affair in the late '80s and early '90s.
On the same day the judge and prosecutor admitted their misconduct, the Court of Criminal Appeals granted Hood a stay, but based on a separate issue about jury instructions, not the just-proven affair involving their former colleague. The blog Crime and Consequences gives this account of their reasons for the stay:
The decision of the Texas Court of Criminal Appeals is here. The court denies the affair-based claim, along with a nonsense double jeopardy claim, on the ground that "they do not meet the requirements of Article 11.071, § 5, for the consideration of subsequent claims." In Texas, as in most jurisdictions, there is an appeal, one collateral review, and only a narrow window for any further collateral reviews after that.There's only one problem with the Texas court's otherwise reasonable decision to bow to "developments in the law regarding nullification instructions": Those developments took place in 2007, not between the CCA's last review of Hood's case (June 2008) and now!The court goes on to say, though, "Because of developments in the law regarding nullification instructions, this Court has determined that it would be prudent to reconsider the decision we issued in dismissing applicant’s second subsequent writ application. See Ex parte Hood, 211 S.W.3d 767(Tex. Crim. App. 2007)(No. AP-75,370)."
The primary development is likely the Supreme Court's 2007 decision three months later in Smith v. Texas. As with many old Texas cases, the state is still litigating in Hood the consequences of instructing juries in accordance with a statute the Supreme Court expressly upheld in Jurek v. Texas, 428 U.S. 262 (1976), a practice later found to violate the constitutional requirement the Court fabricated in Lockett v. Ohio, 438 U.S. 586 (1978).
So why didn't the CCA stay the execution back then and demand the jury instructions be revisited? By staying the execution on these grounds after earlier having authorized his final execution, isn't the court essentially saying "We were prepared to kill this guy even though his jury instructions were unconstitutional?" How else can this be interpreted?
I can think of only two possible explanations for this odd and surprising move by the court: Either the CCA egregiously erred last spring by failing to accommodate Smith v. Texas, or else the court is now using this issue as a stratagem, the way an illusionist uses misdirection, to avoid revisiting their colleague's admitted misconduct. Neither reason reflects well on the court.
However one interprets it, the Charles Hood stay was an extraordinary ruling. I've heard defense lawyers and abolitionists frequently complain that under Presiding Judge Sharon Keller, the CCA allows executions without addressing major, legitimate constitutional claims. Now the CCA is basically admitting it sent someone to the death chamber with a constitutionally deficient case. I'm frankly somewhat stunned at the implications.
UPDATE: See a related editorial from the Austin Statesman.
Wednesday, September 10, 2008
Ike Evacuations
The weather has become a bigger story than usual for the Texas justice system in 2008. Some private prisons - especially the tent city down in Raymondville created to house immigration detainees - haven't yet gotten over damage from Hurricane Dolly, Texas Prison Bidness reports. Even so, Hurricane Ike may follow Dolly and hit land by this weekend on the Texas Gulf Coast. All accounts depict the storm's path as highly erratic. Ike enters the Gulf of Mexico leaving jail-related debacles among other catastrophers in its Caribbean wake. In the Turks and Caicos, "The prison also suffered significant damages, resulting in crammed conditions." Eighty people died in Cuba, so the roof torn off a prison there was likely the least of their worries. (In a minor postive note in the wake of Cuba's tragedy, President Bush is considering whether to temporarily lift the decades-long embargo against the storm-wracked island nation.) In Haiti, where 47 died in Ike-related flooding, "At the local jail, emaciated inmates waited for food to stave off starvation." Check out this sad news story from Al Jazeera depicting Ike-related flooding at a Haitian prison and devastation in the surrounding town:A check of hurricane-related reporting so far finds the Houston Chronicle mentioning yesterday that "The state prison system moved 12 female dialysis patients from the Carole S. Young Medical Facility Complex in Dickinson to the Estelle Unit in Huntsville. The system also is staging nearly 60 inmate transport buses in the Beeville area should the evacuation of South Texas facilities become necessary."
Already, said the Chron, "More than 1,300 inmates from Cuero's medium-security Stevenson Unit in South Texas were moved to prisons in Beeville and Kenedy, and 597 were moved from the Glossbrenner Unit for felony substance abusers in San Diego, also in South Texas, to a lockup in Dilley." Beyond that, according to The Back Gate, a prison guards' web site, "At this point, TDCJ states they are just watching the storm closely, and will make evacuation deteminations if need be later this week."
Aransas County has evacuated its jail. In Corpus Christi, "The Nueces County Sheriff's Department also began initial preparations, which could include evacuating some of the county's inmates from the North Padre Island Drive annex."
Those are the only notices I've seen so far about Ike-related jail and prison evacuations. Let me know in the comments what else you're hearing and as the week goes on I'll add updates the end of this post.
UPDATE: According to the Huntsville Item:
Texas Department of Criminal Justice officials are evacuating four TDCJ units located in areas likely to be affected by Hurricane Ike
The Terrell and Clemens units in Brazoria County and the Carole S. Young Medical Facility Complex in Galveston County began evacuations early today, while TDC’'s Hospital Galveston medical facility will begin evacuations early this afternoon.
Inmates are being transferred to TDCJ units in the Gatesville, Huntsville and Palestine areas.
Weekend visitation will be canceled at the following TDCJ prison units, although it is advised that visitors contact the unit prior to traveling to ensure visitation has not been canceled at other TDCJ facilities not listed below.
Beto Unit in Tennessee Colony
Briscoe Unit in Dilley
Byrd Unit in Huntsville
Central Unit in Sugar Land
Clemens Unit in Brazoria
Coffield Unit in Tennessee Colony
Connally Unit in Kenedy
Darrington Unit in Rosharon
Eastham Unit in Lovelady
Ellis Unit in Huntsville
Estelle Unit in Huntsville
Ferguson Unit in Midway
Gatesville Unit in Gatesville
Goree Unit in Huntsville
Hamilton Unit in Bryan
Hightower Unit in Dayton
Hilltop Unit in Gatesville
Hobby Unit in Marlin
Hodge Unit in Rusk
Hospital Galveston in Galveston
Huntsville Unit in Huntsville
Jester I Unit in Richmond
Jester III Unit in Richmond
Jester IV Unit in Richmond
LeBlanc Unit in Beaumont
Lewis Unit in Woodville
Luther Unit in Navasota
Lynaugh Unit in Fort Stockton
McConnell Unit in Beeville
Michael Unit in Tennessee Colony
NUTHER UPDATE: As of 10 a.m. Thursday morning, 1,000 inmates at the Galveston jail still hadn't been evacuated, though the Sheriff promised they'd "take care of it."
SEE ALSO: From the Palestine Herald, "TDCJ relocating coastal prisoners."
Tuesday, September 09, 2008
Judge and DA in Charles Hood case admit to sexual relations
Who is surprised that the affair between the Collin County DA and the judge presiding over Charles Hood's case definitely occurred, with both lovebirds admitting to the tryst in depositions over the last 24 hours? Now it's up to Governor Perry to decide whether that merits commuting Charles Hood's sentence as Attorney General Greg Abbott has requested. (9/10 update: The case was stayed on other grounds - see below.) Here's the relevant excerpts from a letter from Hood's attorneys to the Governor with results from the depositions (via email, not online):
Should Holland and O'Connell be prosecuted for what they've done, or merely disbarred? Or will they get a slap on the wrist?
What do readers think will happen, not just in Hood's case but in all these old cases where Holland and O'Connell have admitted a fundamental conflict of interest?
UPDATE: A reader lets us know that the Court of Criminal Appeals stayed Hood's execution pending consideration of a separate issue related to the jury instructions. This case is full of novel legal strategies, including this one by the CCA. It sounds like the Court of Criminal Appeals hopes to delay the case in deference to growing public and political pressure without formally addressing any misconduct by their former colleague. ABC News reports:
Last night and today, counsel for Mr. Hood deposed the former Collin County District Attorney, Thomas S. O'Connell, Jr., and the Hon. Verla Sue Holland. Judge Holland and Mr. O'Connell admitted under oath that they had an intimate sexual relationship for many years.From this account it sounds like one of the pair - probably Judge Holland - denied the affair was still going on during Hood's capital murder trial but admitted it had gone on for years prior. It's hard to guess now what Gov. Perry will do - the ball is in his court. Whether or not this information helps Charles Hood's case, many unanswered questions remain going forward: The courts must decide whether the affair taints not just Hood's case but all cases Holland presided over involving Mr. O'Connell. The answer is "probably," but then what should be done about it?
Judge Holland and Mr. O'Connell confirmed that they kept the relationship secret. She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney. Similarly, Mr. O'Connell never disclosed the romantic relationship to any of his adversaries nor did he recuse himself or his office from prosecuting a single case because of his affair with Judge Holland.
The intimate sexual relationship between the judge and district attorney began several years prior to the trial of Mr. Hood. While Mr. O'Connell and Judge Holland have different recollections as to when the affair ceased containing an intimate sexual component, there is no doubt that the relationship was sexual in the years immediately leading up to the time that Judge Holland had jurisdiction over the case. Even after the romance ended, Judge Holland and Mr. O'Connell remained good, close friends.
Should Holland and O'Connell be prosecuted for what they've done, or merely disbarred? Or will they get a slap on the wrist?
What do readers think will happen, not just in Hood's case but in all these old cases where Holland and O'Connell have admitted a fundamental conflict of interest?
UPDATE: A reader lets us know that the Court of Criminal Appeals stayed Hood's execution pending consideration of a separate issue related to the jury instructions. This case is full of novel legal strategies, including this one by the CCA. It sounds like the Court of Criminal Appeals hopes to delay the case in deference to growing public and political pressure without formally addressing any misconduct by their former colleague. ABC News reports:
Though the former judge, Verla Sue Holland, and former district attorney, Tom O'Connell, reportedly admitted today to having a sexual relationship, the Texas Court of Criminal Appeals granted the stay based on a technical legal issue unrelated to the reported affair.
Instead, the court said it would reconsider whether jurors in Charles Dean Hood's death penalty trial received proper jury instructions. Hood was scheduled to be executed Wednesday.
The court had rejected a similar claim from Hood's attorneys, but said it would revisit the issue based on new developments in the law.
MORE: See a related editorial from the Dallas News.
Dallas may close jail to save money
Kevin Krause at the Dallas News Crime Blog reports that the new Dallas County budget includes provisions to close one of the county's five jails to save money on staffing costs.
This should be a cautionary tale for communities like Smith County (Tyler) to the East of Dallas or McLennan (Waco) to the South which hope to solve overcrowding problems by expanding capacity. Even if you've got extra jail space, the biggest expense will be paying to adequately staff it. That may not be financially possible without large tax increases, even if a new jail gets built.
This should be a cautionary tale for communities like Smith County (Tyler) to the East of Dallas or McLennan (Waco) to the South which hope to solve overcrowding problems by expanding capacity. Even if you've got extra jail space, the biggest expense will be paying to adequately staff it. That may not be financially possible without large tax increases, even if a new jail gets built.
Women in Crime Ink publishing Texan bloggers
I was pleased to discover via Prevention Not Punishment a relatively new (and new to me) blog called Women in Crime Ink, and especially grateful to find a couple of substantive recent posts from Texas writers. Today Jenna Jackson, who moved to Jacksonville at age 10 and now lives in Houston, has a thoughtful post about the KFC murder trial in Kilgore 25 years after a five people were abducted and murdered in one of Texas' most notorious unsolved killings, which investigators now believe they've solved via DNA evidence. My own experience living in Tyler when this happened is similar to Jackson's:
Another excellent, recent WICI piece comes from Houston psychiatrist Lucy Puryear, who concludes a discussion of this spring's Indiana v. Edwards (see Grits' discussion) with these comments:
Finally, I'd be remiss not to mention that former Harris County DA candidate Kelly Siegler, who left the office after losing the Republican DA nomination earlier this year, has a blog post up at WICI titled "Too beaten down to cry." Several other Texas gals are listed among their regular bloggers. I've added Women in Crime Ink to Grits' sidebar links and am glad to have found it.
For most everyone who lived in East Texas, those killings represented this sad, pointless mystery that would likely never be solved. Routinely at breakfasts at the local cafes—or high school football games—the subject would come up. And everyone would describe their six degrees of separation from the people involved in the case—and their theories regarding who might have done such an unspeakable crime.Along with Jackson, "I hope, for the sake of the five victims’ families—and for the investigators who never let this one go—that the right men are in custody and that they identify and track down the third man involved."
Another excellent, recent WICI piece comes from Houston psychiatrist Lucy Puryear, who concludes a discussion of this spring's Indiana v. Edwards (see Grits' discussion) with these comments:
The United States has long struggled with the treatment of the mentally ill. From locking them up in sanitariums for years to locking them up in jails. No one knows quite what to do with the mentally ill defendant who, although it may be obvious that they've committed a crime, it's also obvious that they are seriously disturbed. In Houston alone it is estimated that some 50% of the inmates in the juvenile justice system are seriously and chronically mentally ill. Jail is not a great treatment for a psychiatric disorder.I'll be looking forward to reading her followup.
Texas in particular has struggled with the death penalty and the mentally ill criminal. We have had a history of executing those with known, documented, and profound psychotic illness. This is an embarrassment for our state and a terrible example for respecting human rights. This ruling by the United States Supreme Court is a very small step forward in assuring that those who commit crimes and are suffering from mental illness have both their rights protected and receive fair trials. What to do with a mentally ill defendant after conviction is the topic of another blog.
Finally, I'd be remiss not to mention that former Harris County DA candidate Kelly Siegler, who left the office after losing the Republican DA nomination earlier this year, has a blog post up at WICI titled "Too beaten down to cry." Several other Texas gals are listed among their regular bloggers. I've added Women in Crime Ink to Grits' sidebar links and am glad to have found it.
Plane used for CIA renditions also smuggled drugs
Nearly a year after it went down in the Yucatan jungle, a Mexican newspaper has obtained documentation that a US-owned plane previously used by the CIA for renditions and trips to and from Guantanamo Bay was also used to smuggle cocaine. Reports Agency France Press:
There can be few explanations beyond straight up corruption, it seems to me, for why the DEA or FBI has not followed up on this major lead. After all, the downed plane represents a concrete link between Mexican drug runners and American spooks. If an American using planes for US government rendition then sold one (or more) to the Sinaloa drug cartel, that should be easy for investigators to track. So where are the US-side arrests?
MEXICO CITY (AFP) - A private jet that crash-landed almost one year ago in eastern Mexico carrying 3.3 tons of cocaine had previously been used for CIA "rendition" flights, a newspaper report said here Thursday, citing documents from the United States and the European Parliament.To give credit where it's due, the Fort Worth Star Telegram's Jay Root first broke the story last year (reporting with Kevin Hall of McClatchy News), and the web-based Mad Cow News was all over the case after it came out. According to MCN reports, this plane is just the tip of the iceberg in terms of US-registered planes smuggling dope for Mexican cartels. Even so, the story almost immediately died down here in the States, though obviously the Mexican press continues to investigate.
The plane was carrying Colombian drugs for the fugitive leader of Mexico's Sinaloa cartel, Joaquin "Chapo" Guzman, when it crash-landed in the Yucatan peninsula on September 24, El Universal reported.
The daily said it had obtained documents from the United States and the European Parliament which "show that that plane flew several times to Guantanamo, Cuba, presumably to transfer terrorism suspects."
It said the European Parliament was investigating the private Grumman Gulfstream II, registered by the European Organization for the Safety of Air Navigation, for suspected use in CIA "rendition" flights in which prisoners are covertly transferred to a third country or US-run detention centers.
It also said the US Federal Aviation Administration's (FAA) logbook registered that the plane had traveled between US territory and the US military base in Guantanamo.
There can be few explanations beyond straight up corruption, it seems to me, for why the DEA or FBI has not followed up on this major lead. After all, the downed plane represents a concrete link between Mexican drug runners and American spooks. If an American using planes for US government rendition then sold one (or more) to the Sinaloa drug cartel, that should be easy for investigators to track. So where are the US-side arrests?
Ethicist: Judicial misconduct to blame for delays in Charles Hood case
Find below a guest post by Lawrence J. Fox, Professor of Law at University of Pennsylvania Law School and former Chair of the ABA Ethics Committee. He was one of the 36 legal ethicists who signed onto Professor Monroe Freedman's opinion stating that the romantic relationship between the judge and DA in the Charles Hood case created a "structural defect" rendering the conviction and sentence "invalid per se." Judge Holland will finally be deposed at 10 a.m. this morning.
Executing Justice in the Texas Courts
By Lawrence J. Fox
They did not execute Charles Hood on June 17. On that night, the State of Texas did the right thing for the wrong reason. The execution was postponed not to cure a grave injustice, simply because the State of Texas ran out of time. But the aroma of injustice remains just as strong as it did on that date. Mr. Hood now faces execution on September 10, and if allowed to go forward, that execution will place a black mark on the ethics of the judiciary and the rule of law, one that can never be erased.
How could this be? Because until a lawyer in the office that prosecuted Charles Hood came forward just days before the original execution date, there was no proof of what had been long rumored and this lawyer now confirmed: Thomas O'Connell, the chief prosecutor of Mr. Hood was – at that time – engaged in a personal relationship with Verla Sue Holland, the judge who presided at the trial.
Our canons of judicial ethics say that judges must avoid even the appearance of impropriety. But this conduct is judicial impropriety itself. Judges who are no more than close social friends with lawyers will recuse themselves from their friends' cases. The relationship that occurred here, of course, was so much more serious and objectivity-destroying than that example. No one can look at a case in which a judge is involved romantically with one of the lawyers and conclude that the judge is not biased. And that universal principle – echoed by dozens of ethics scholars who have looked into the Hood case – applies to every matter, from a garden variety civil suit involving mere money to a defendant who stands trial for a capital crime.
Then how, once this serious ethics violation was revealed, can the state of Texas proceed to execute Mr. Hood? Because the prosecution argues this issue should have been raised sooner.
Talk about placing the blame on the wrong party! The judge had a duty to disclose this juicy fact to Mr. Hood. If the judge failed, then the duty fell to the prosecutor, no matter how embarrassed he might be. But the two of them apparently were in an 18-year conspiracy of silence that permitted the judge to preside over who knows how many of O'Connell's cases. Yet these two public officials pay no price for their transgressions while Mr. Hood faces execution next month based on a hopelessly flawed trial.
Holland and O'Connell's silence remains deafening. To date, they have refused to discuss their relationship. And no one has heard their sworn testimony or conducted any discovery on the topic, steps that cry out to be accomplished before any execution can proceed.
Mr. Hood's attorneys filed a petition in August to compel the alleged lovers to testify under oath. After months of inaction, yesterday a district court judge finally ordered Holland and O'Connell to give their testimony. This presents the first real opportunity to bring down the wall of silence surrounding Holland and O'Connell's relationship. They must be compelled to disclose the truth. Were there any gifts? Any intimate dinners? Any faraway vacations on sandy beaches? We do not know.
We are obviously going to continue to have the death penalty in the United States. But if we are, we must do everything in our power to assure that every defendant who faces death (indeed, every litigant who appears in court) receives a fair trial before an impartial judge. Having Mr. Hood facing execution following a trial in which we are now told the judge was sleeping with the prosecutor makes a mockery of that standard and cries out for granting Mr. Hood a new trial.
There is a lot more at stake here than justice for one man. Our entire system of justice and our byzantine death penalty jurisprudence is put to the test by these revelations. Let us hope we pass.
Executing Justice in the Texas Courts
By Lawrence J. Fox
They did not execute Charles Hood on June 17. On that night, the State of Texas did the right thing for the wrong reason. The execution was postponed not to cure a grave injustice, simply because the State of Texas ran out of time. But the aroma of injustice remains just as strong as it did on that date. Mr. Hood now faces execution on September 10, and if allowed to go forward, that execution will place a black mark on the ethics of the judiciary and the rule of law, one that can never be erased.
How could this be? Because until a lawyer in the office that prosecuted Charles Hood came forward just days before the original execution date, there was no proof of what had been long rumored and this lawyer now confirmed: Thomas O'Connell, the chief prosecutor of Mr. Hood was – at that time – engaged in a personal relationship with Verla Sue Holland, the judge who presided at the trial.
Our canons of judicial ethics say that judges must avoid even the appearance of impropriety. But this conduct is judicial impropriety itself. Judges who are no more than close social friends with lawyers will recuse themselves from their friends' cases. The relationship that occurred here, of course, was so much more serious and objectivity-destroying than that example. No one can look at a case in which a judge is involved romantically with one of the lawyers and conclude that the judge is not biased. And that universal principle – echoed by dozens of ethics scholars who have looked into the Hood case – applies to every matter, from a garden variety civil suit involving mere money to a defendant who stands trial for a capital crime.
Then how, once this serious ethics violation was revealed, can the state of Texas proceed to execute Mr. Hood? Because the prosecution argues this issue should have been raised sooner.
Talk about placing the blame on the wrong party! The judge had a duty to disclose this juicy fact to Mr. Hood. If the judge failed, then the duty fell to the prosecutor, no matter how embarrassed he might be. But the two of them apparently were in an 18-year conspiracy of silence that permitted the judge to preside over who knows how many of O'Connell's cases. Yet these two public officials pay no price for their transgressions while Mr. Hood faces execution next month based on a hopelessly flawed trial.
Holland and O'Connell's silence remains deafening. To date, they have refused to discuss their relationship. And no one has heard their sworn testimony or conducted any discovery on the topic, steps that cry out to be accomplished before any execution can proceed.
Mr. Hood's attorneys filed a petition in August to compel the alleged lovers to testify under oath. After months of inaction, yesterday a district court judge finally ordered Holland and O'Connell to give their testimony. This presents the first real opportunity to bring down the wall of silence surrounding Holland and O'Connell's relationship. They must be compelled to disclose the truth. Were there any gifts? Any intimate dinners? Any faraway vacations on sandy beaches? We do not know.
We are obviously going to continue to have the death penalty in the United States. But if we are, we must do everything in our power to assure that every defendant who faces death (indeed, every litigant who appears in court) receives a fair trial before an impartial judge. Having Mr. Hood facing execution following a trial in which we are now told the judge was sleeping with the prosecutor makes a mockery of that standard and cries out for granting Mr. Hood a new trial.
There is a lot more at stake here than justice for one man. Our entire system of justice and our byzantine death penalty jurisprudence is put to the test by these revelations. Let us hope we pass.
Monday, September 08, 2008
Hood hearing canceled: Interpreting Judge Holland's recusals
UPDATE: Charles Hood's attorneys won remand of the case back to state court. Judge Greg Brewer has granted Mr. Hood's Motion to Take Depositions and has ordered Mr. O'Connell to be deposed immediately. Judge Holland is scheduled for deposition on Tuesday morning at 10 a.m. central time.
The hearing scheduled today was canceled that would have decided whether Judge Verla Sue Holland and former Collin County DA Tom O'Connell must submit to depositions regarding an alleged affair nearly 20 years ago during Charles Hood's capital murder trial. The pair of alleged lovebirds at the last minute asked the matter to be moved to federal court, reports the Dallas Morning News on its website.
Meanwhile, the Texas Defender Service today released significant circumstantial evidence that Judge Holland, once she ascended to the Court of Criminal Appeals, recused herself from Collin County cases 160 times more often than CCA judges from neighboring Dallas County. That implies there's some ongoing conflict of interest, which would be explained if the affair had occurred, and gives the courts and Gov. Perry a little more substance to hang their hats on. Here's a substantial excerpt from the TDS press release:
The hearing scheduled today was canceled that would have decided whether Judge Verla Sue Holland and former Collin County DA Tom O'Connell must submit to depositions regarding an alleged affair nearly 20 years ago during Charles Hood's capital murder trial. The pair of alleged lovebirds at the last minute asked the matter to be moved to federal court, reports the Dallas Morning News on its website.
Meanwhile, the Texas Defender Service today released significant circumstantial evidence that Judge Holland, once she ascended to the Court of Criminal Appeals, recused herself from Collin County cases 160 times more often than CCA judges from neighboring Dallas County. That implies there's some ongoing conflict of interest, which would be explained if the affair had occurred, and gives the courts and Gov. Perry a little more substance to hang their hats on. Here's a substantial excerpt from the TDS press release:
Judge Holland ’s Shockingly High Recusal Rate Warrants Full Investigation into Alleged Affair with D.A.
New Data Supports Charles Dean Hood’s Claim that Judge and Prosecutor at His Trial were Romantically Involved
(Austin , Texas ) Attorneys for Charles Dean Hood filed an Application for Writ of Habeas Corpus and Motion for Stay of Execution (attached) today in the Court of Criminal Appeals of Texas with new data indicating that his rights to an impartial judge and a fair trial were violated in his capital murder trial. During her tenure as a judge on the CCA (from 1997 to 2001), Verla Sue Holland recused herself from four out of every five cases from Collin County, where she is alleged to have had a romantic relationship with District Attorney Thomas O’Connell. Hood is scheduled for execution on September 10.
Data recently collected by the Texas Defender Service reveal that Judge Holland recused herself from nearly 80 percent of the cases coming from Collin County , where D.A. O’Connell was prosecuting cases and she previously served as trial judge. In comparison, Judges Price and Keasler who – like Judge Holland – served on the district court bench before they were elected to the CCA, recused themselves in less than one percent of the cases that came from Dallas County , where they previously sat. Court records show:
- Judge Holland recusal rate: 78.6% (381 recusals out of 485 Collin County cases).
- Judge Price recusal rate: 0.42% (28 recusals out of 6,641 Dallas County cases).
- Judge Keasler recusal rate: 0.50% (37 recusals out of 7,396 Dallas County cases).
“Judge Holland’s recusing herself at a rate nearly 160 times more than her fellow jurists cries out for an explanation, especially in light of the evidence Mr. Hood has previously presented in support of his judicial bias claim. The simplest explanation is the most plausible one: Judge Holland recused herself at such an off-the-charts rate, because she had previously been romantically involved with [D.A. O’Connell],” Hood states in today’s habeas application.
Hood’s petition requests a stay of execution and a remand to the convicting court for further proceedings, including depositions or an evidentiary hearing where Judge Holland and Mr. O’Connell would be subject to questioning under oath. If Hood’s claim is proven, his rights to an impartial judge and a fair trial were violated and his conviction and sentence are null and void.
Hood’s attorneys also filed a Motion to Recuse eight of the nine judges on the Court of Criminal Appeals from hearing Hood’s habeas corpus petition because they served with Judge Holland and their personal knowledge of the facts may create the appearance of impropriety.
Also today, Judge Greg Brewer of the 366th Judicial District Court in Collin County is expected to hold a hearing on Hood’s civil petition seeking permission to depose Mr. O’Connell and Judge Holland. Both parties have been ordered to appear and be prepared to give sworn depositions, but scheduled hearing remains uncertain, because in an attempt to avoid giving depositions under oath, Judge Holland and Mr. O'Connell have asked a federal court to remove Judge Brewer’s jurisdiction over the case.
This is now essentially in Governor Perry's hands. Attorney General Greg Abbott urged the Governor to stay the execution until claims of the affair could be investigated in order to "protect the integrity of Texas' criminal justice system."
Odds are the civil courts will eventually allow Holland and O'Connell's depositions, the question is whether that happens before Hood is put to death. Though Holland's attorney called the request for depositions a "suberfuge," it's his client who's attempting to conceal the truth about her past.
If the allegations are true but the revelations don't come out until after Charles Hood's execution, the thoughtless zealots calling for Hood's immediate extermination will have surely done more harm to the pro-death penalty cause than any abolitionist ever could. Even if the public supports the death penalty in general, that could change down the line if the state proves irrevocably it's willing to tolerate a rigged game. Texans surely support the death penalty, but IMO they also support its fair administration.
Houston appeals court: Church of Christ, other Protestants may have no privilege in communications with clergy
Are communications with your minister covered by the clergy-commnicant privilege? To find out you'd better first study up on your Church's detailed doctrines on the topic. Catholics and Jews seem pretty much safe, but if a new appellate ruling stands, most Protestants in Texas may no longer be eligible to claim the privilege.
Rule 505 from the Texas Rules of Evidence declares that "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser."
Further, declares Rule 505, "A 'member of the clergy"' is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual.
So perhaps readers will forgive this non-lawyer's confusion over a recent appellate decision by the First Court of Appeals in Houston declaring there exists no privilege for communicants and clergy in the Church of Christ, which is a major Protestant denomination in Texas. The court ruled that the Church of Christ has no doctrine of keeping confessions secret. As usefully described at Evidence Prof Blog:
There's a slippery slope factor here - if this ruling stands, in the First Court's jurisdiction, at least, now each individual religion's doctrines are subject to evaluation by judges to determine if Rule 505 applies to their clergy. I'd guess most evangelical and Protestant Christian denominations in particular have no such formal doctrine.
I don't believe such judicial interpretations of Church doctrine were either intended or authorized by Rule 505, which makes no such distinctions in the plain language of the text. Though I'm not a lawyer, I agree with Evidence Prof blogger Colin Miller this is a novel distinction established by the First Court, which enjoys a reputation as one of the more aggressively activist, pro-prosecution appellate courts out of the 14 in Texas.
One hopes the state Court of Criminal Appeals might take up the issue and overrule the First Court; this seems like a pointless, even anti-religious instance of judicial activism and a bad precedent to set.
BLOGVERSATION: Corrupt Hive agrees with the ruling.
Rule 505 from the Texas Rules of Evidence declares that "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser."
Further, declares Rule 505, "A 'member of the clergy"' is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual.
So perhaps readers will forgive this non-lawyer's confusion over a recent appellate decision by the First Court of Appeals in Houston declaring there exists no privilege for communicants and clergy in the Church of Christ, which is a major Protestant denomination in Texas. The court ruled that the Church of Christ has no doctrine of keeping confessions secret. As usefully described at Evidence Prof Blog:
Does Judaism have any formal doctrine of confessional secrecy? If so I'm not aware of it but "rabbis" are specifically named in the rule. Certainly there's no such formal doctrine among Southern Baptists, the faith tradition in which I was raised.Without even having to get into waiver issues, the Court of Appeals of Texas found that the privilege did not apply. Why? According to the court, a former elder of [defendant] Leach's church, the Church of Christ, testified that the church does not have a doctrine that confessions will be kept confidential. Moreover, Leach's father testified that a member of the congregation can confess to an elder, and the elder will stand up and tell the congregation what he has confessed, and they will all pray together
Leach's father also indicated that no communication is private unless requested. And one of the elders of the church testified that Leach never told him that he wanted his communication to be kept private. Moreover, Leach's mother and father both testified that Leach never expressly indicated that he wanted his statements to the clergy to be kept private. Finally, Leach's mother also testified that Leach "knew when he told us what had happened that it was no longer going to be private once it got out."
All of this is fairly fascinating to me. I had assumed that all religious institutions had policies of keeping their penitents' "confessions" confidential, meaning that such confessions would normally be inadmissible under cleric-penitent privileges in the same way that confessions to attorneys are normally inadmissible under the attorney-client privilege and confessions to psychotherapists are normally inadmissible under the psychotherapist-patient privilege. Obviously, though, this is not the policy with the Church of Christ, and it might not be the policy with other religious institutions. In Evidence class, I like to say that the so called "professional privileges" are all very similar, but this seems to me to be a key difference.
There's a slippery slope factor here - if this ruling stands, in the First Court's jurisdiction, at least, now each individual religion's doctrines are subject to evaluation by judges to determine if Rule 505 applies to their clergy. I'd guess most evangelical and Protestant Christian denominations in particular have no such formal doctrine.
I don't believe such judicial interpretations of Church doctrine were either intended or authorized by Rule 505, which makes no such distinctions in the plain language of the text. Though I'm not a lawyer, I agree with Evidence Prof blogger Colin Miller this is a novel distinction established by the First Court, which enjoys a reputation as one of the more aggressively activist, pro-prosecution appellate courts out of the 14 in Texas.
One hopes the state Court of Criminal Appeals might take up the issue and overrule the First Court; this seems like a pointless, even anti-religious instance of judicial activism and a bad precedent to set.
BLOGVERSATION: Corrupt Hive agrees with the ruling.
Is TYC's central administration too top heavy?
If youth inmate levels are down, asks Senate Criminal Justice Committee Chairman John Whitmire, why has the number of administrators gone up? And why are TYC administrators so highly paid? From the Houston Chronicle this morning, we see this story ("Bureaucratic ranks swell at TYC," Sept. 8):
TYC's staffing levels were set by the Texas Legislature during the budget process and new reforms implemented last year required hiring more administrators, as noted in the story by conservator Richard Nedelkoff, including in the much-ballyhooed Office of the Inspector General. Then interim executive director Dimitria Pope established more layers of bureaucracy in the agency, actions Whitmire's committee was informed about and approved of at the time. She also made the top-level hires legislators are complaining about now - particularly general counsel Steve Foster and government affairs/PR man Jim Hurley - and set their original salaries, but no one from the Lege complained about it then.
It's worth pointing out another key fact regarding overall staffing levels: 18 months ago TYC was woefully understaffed and couldn't come close to implementing its required 12:1 staffing ratio. Indeed, at many units the ratio routinely exceeded 24-1.
So during the same period the Lege added oversight and the interim E.D. added new layers of bureaucracy, staffing in the field, for the first time in many years, began to approach levels of normalcy. (The biggest staffing crisis continues to occur, last I heard, at the intake center in Mart, but other units reportedly are mostly meeting their staffing requirements thanks to guarding far fewer kids.) So to a certain extent, the Lege had been shortchanging TYC for quite a while and its increased per-unit costs are merely a function of the agency coming much closer to meeting its baseline obligations.
Finally, as for comparing TDCJ salaries with TYC's, if TYC administrators lived in Huntsville instead of Austin, maybe they could get by on lower base pay. Move TYC admin to Pyote, for example, and I'm sure their folks could get by on less. But as long as they live in Austin, unless you tell me their salaries are higher than at the Department of Insurance, for example, where Jim Hurley worked previously, that doesn't seem like a fair comparison
If folks in the Legislature now want to change course from what they told TYC to do just a year ago, that's certainly their prerogative. With adequate funding and services in place, I'd probably support Chairman Whitmire's plan to shift most of these kids downstream to be handled in counties, as California is doing. But it's not particularly helpful in this writer's opinion to blame agency management for implementing what the Lege told them to do.
While I'm sympathetic to this complaint, we shouldn't understate the extent to which the new "bureaucracy" created last year stems from a legislative mandate to make kids safer and provide greater oversight to an out-of-control agency. When you add oversight, you simultaneously add warm bodies to implement the new functions.From its headquarters in Austin, 368 administrators oversee the state's juvenile correctional agency, 47 more than early last year, when TYC had 4,000 offenders in its lockups, nearly double today's number. As the offender population has dwindled — the result of a new state law that closed the agency to offenders ages 18 to 21 and offenders sentenced on misdemeanors — the total cost of paying all those employees has risen by nearly a quarter, to $18.7 million a year.
Some lawmakers say agency bigwigs have shown a willful disregard for reining in expenses. Last month, the chair and co-chair of the joint committee that oversees the agency asked the state auditor, John Keel, to step in and investigate.
"It's an agency of high-priced employees in the central office trying to protect salaries and turf," Sen. John Whitmire, D-Houston, the chairman of the joint committee and one of the letter writers, said last week. ..
"Instead of spending money retaining and attracting new (juvenile correctional officers), TYC has chosen to increase central office personnel," Whitmire and Rep. Jerry Madden, R-Plano, said in their letter to the auditor.
TYC's staffing levels were set by the Texas Legislature during the budget process and new reforms implemented last year required hiring more administrators, as noted in the story by conservator Richard Nedelkoff, including in the much-ballyhooed Office of the Inspector General. Then interim executive director Dimitria Pope established more layers of bureaucracy in the agency, actions Whitmire's committee was informed about and approved of at the time. She also made the top-level hires legislators are complaining about now - particularly general counsel Steve Foster and government affairs/PR man Jim Hurley - and set their original salaries, but no one from the Lege complained about it then.
It's worth pointing out another key fact regarding overall staffing levels: 18 months ago TYC was woefully understaffed and couldn't come close to implementing its required 12:1 staffing ratio. Indeed, at many units the ratio routinely exceeded 24-1.
So during the same period the Lege added oversight and the interim E.D. added new layers of bureaucracy, staffing in the field, for the first time in many years, began to approach levels of normalcy. (The biggest staffing crisis continues to occur, last I heard, at the intake center in Mart, but other units reportedly are mostly meeting their staffing requirements thanks to guarding far fewer kids.) So to a certain extent, the Lege had been shortchanging TYC for quite a while and its increased per-unit costs are merely a function of the agency coming much closer to meeting its baseline obligations.
Finally, as for comparing TDCJ salaries with TYC's, if TYC administrators lived in Huntsville instead of Austin, maybe they could get by on lower base pay. Move TYC admin to Pyote, for example, and I'm sure their folks could get by on less. But as long as they live in Austin, unless you tell me their salaries are higher than at the Department of Insurance, for example, where Jim Hurley worked previously, that doesn't seem like a fair comparison
If folks in the Legislature now want to change course from what they told TYC to do just a year ago, that's certainly their prerogative. With adequate funding and services in place, I'd probably support Chairman Whitmire's plan to shift most of these kids downstream to be handled in counties, as California is doing. But it's not particularly helpful in this writer's opinion to blame agency management for implementing what the Lege told them to do.
Dallas County slashing public safety budgets while $48 million rainy day fund sits idle
If Dallas County can't afford to hire enough public defenders to keep caseloads reasonable or pay enough staff to guard the jail, why does the Commissioners Court have more than $48 million in a rainy day fund they're refusing to spend? According to the Dallas News ("Dallas County likes to keep its fat reserve," Sept. 8):
During the height of the budget crisis in May, the county was sitting on $31 million in reserves. And when commissioners approve a 2008-09 budget in less than two weeks, that surplus in the General Fund will jump to at least $48 million – for day-to-day operations alone.
Additional reserves are available in other accounts that pay for major expenses like buildings, roads and technology upgrades.
The reserves – equal to 10.5 percent of the budget, by policy – are meant for unanticipated emergencies.
But they haven't been tapped for as long as anyone can recall. Not for an economic downturn; not for any emergency.
This blog has focused on changes at the public defender's office, where the commissioners court recently imposed ridiculously high caseloads that caused several felony defenders to resign. But at the Sheriffs office the hiring freeze is exacerbating their ongoing guard shortage and and contributing to the jail overcrowding crisis:
Allen Clemson, the Commissioners Court administrator, said reserves weren't needed because no social or other major services were cut this year. "We didn't make any rash budget cuts," he said. Sheriff's Department labor groups, however, take issue with that. Sgt. Greg Porter, chairman of the Dallas County Sheriff's Association, says commissioners are hoarding excessive surpluses while law enforcement positions are being frozen and cut. He said a tax increase may be needed to keep services intact. "At some point, something's got to give," he said.
Reduced jail staffing at a time when the county is losing civil suits over failing to provide adequate healthcare is a sure-fire recipe for disaster.
News of the surplus affirms my sense that the Dallas County budget crisis is a manufactured event clouding some alternative agenda I don't understand. County commissioners initially created the crisis by announcing they wouldn't raise taxes no matter what, then refused to dip into their rainy day fund and insisted on slashing staff instead.
Gutting the public defender office and freezing new hires at the jail are mere on-paper fixes that boost actual real-world costs. With fewer public defenders, more expensive private attorneys will take more cases, running up costs. And understaffing the jail requires making up the difference with overtime, further starving the jail budget when just hiring more staff would be cheaper.
Sunday, September 07, 2008
More on Mexico's legal reforms
Since radical changes to Mexico's legal system were announced earlier this year, I've been waiting mostly in vain for more detailed English language accounts of all the details. This AP account (Sept. 6) doesn't fully fill that gap, but gives a little more detail about the training going on and what reforms may look like upon implementation:
Under the constitutional amendment passed by the legislature, approved by all 32 states and signed by President Felipe Calderon, Mexico has eight years to replace its closed proceedings with public trials in which defendants are presumed innocent, legal authorities can be held more accountable and justice is equal. ...Since the Spanish conquest in the 1500s, Mexico has had an inquisitorial system adopted from Europe in which the accused is not presumed to be innocent and proceedings are largely carried out in writing and in secret.
Inquisitorial systems are still used in many countries. But Mexico's version had become so corrupt, Gonzalez said, that "if police put someone's head in excrement and the person confessed, the confession was admitted if the paperwork followed procedures as far as fingerprints, the signature of the public minister, etc."
Without the threat of exposure in public trials, mistaken arrests, bungled investigations and confessions extracted under threats and torture have become common in Mexico. ...
Under the old rules, suspects are routinely paraded in front of cameras before they have been charged, sometimes holding weapons allegedly used in crimes. Lawyers often pay witnesses to write favorable testimony, Gonzalez said, and there are no cross-examinations of witnesses, emotional courtroom exchanges or clever closing arguments. ...
Judges often get their shoes shined while presiding over trials. Gonzalez said the judges sometimes send court secretaries to oversee the closed proceedings, where the few questions asked of defendants often don't relate to the charges, such as "Are you Catholic?"
"It's an amazing change that judges will be listening to someone's voice," Gonzalez told her class at Mexico's Federal Judicial Institute. "The judge will look into the eyes of those testifying. He will see if they stutter, if they are nervous. Does all that count? Of course!"
Judges — not juries of peers — will still determine guilt or innocence. "This is not a copy of the gringo system," Gonzalez told the class.
Instead, Mexico chose a criminal code similar to the one adopted in 2005 by Chile, where cases are examined by three judges who consider the legality of the evidence and whether the defendant's rights were respected. Then, the judges send cases to trial or recommend other means of adjudication, such as a plea bargain or probation.
The new penal code is no miracle cure, but supporters say it has more safeguards, such as limits on detention without charges, the right to a lawyer and a speedy trial.
Still, many are skeptical.
"This favors the guilty," said court clerk Maria del Carmen Rojas. "It gives them too many rights, and because of the speedy trials, judges are not going to have time. Judges are going to be under a lot of pressure."
Other officials suggested that many police, prosecutors and judges would simply ignore the changes.
Some worry a new provision allowing organized crime suspects to be held for up to 80 days without charges could lead to abuses. New York-based Human Rights Watch says that's one of the longest pre-charge detention times of any Western democracy. Terrorism suspects can legally be held for no more than two days on U.S. soil without being charged.
No one knows exactly when the first federal oral trial will take place.
Why only athletes and bodybuilders? Plano steroid prosecutions ignore alleged police doping
With disgraced sprinter Marion Jones heading home to Austin this week from a federal prison and the feds prosecuting amateur bodybuilders in Plano for steroid use, I continue to wonder with each new headline when the same level of attention will be focused on steroid use by police officers, particularly in the Plano case?
Steroid dealer David Jacobs and his body builder girlfriend died under suspicious circumstances that police ruled a murder-suicide soon after he accused police officers from five Metroplex departments of being his customers. (Today's coverage inexplicably doesn't mention the police angle, but see these prior Grits posts and others linked below for background.)
It's a lot more important for public safety to ensure cops aren't using illicit steroids than is policing foot races or body building competitions, but you wouldn't know that by paying attention to state and federal enforcement priorities.
After Jacobs' death, no law enforcement agency disciplined any of his alleged police officer clients; of the five, only Dallas PD implemented steroid testing going forward. Otherwise, the officers Jacobs sold to have never been identified or disciplined, and are likely still on the force using illicit steroids.
In that light, there's a bold hypocrisy to pursuing amateur bodybuilders who were for the most part also merely Jacobs' clients. What's good for the goose is good for the gander. If they're prosecuting bodybuilders who bought steroids from Jacobs, the police officers who purchased from him should be pursued just as aggressively.
See prior related Grits posts:
Steroid dealer David Jacobs and his body builder girlfriend died under suspicious circumstances that police ruled a murder-suicide soon after he accused police officers from five Metroplex departments of being his customers. (Today's coverage inexplicably doesn't mention the police angle, but see these prior Grits posts and others linked below for background.)
It's a lot more important for public safety to ensure cops aren't using illicit steroids than is policing foot races or body building competitions, but you wouldn't know that by paying attention to state and federal enforcement priorities.
After Jacobs' death, no law enforcement agency disciplined any of his alleged police officer clients; of the five, only Dallas PD implemented steroid testing going forward. Otherwise, the officers Jacobs sold to have never been identified or disciplined, and are likely still on the force using illicit steroids.
In that light, there's a bold hypocrisy to pursuing amateur bodybuilders who were for the most part also merely Jacobs' clients. What's good for the goose is good for the gander. If they're prosecuting bodybuilders who bought steroids from Jacobs, the police officers who purchased from him should be pursued just as aggressively.
See prior related Grits posts:
- Dallas PD will implement steroid testing after David Jacobs' allegations
- Possible suicide by snitch who alleged police doping deserves outside inquiry
- Informant who accused Metroplex police of steroid use turns up dead
- 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?
- Steroid use negligible among high school jocks; what about testing police?
- 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
Saturday, September 06, 2008
Research on happiness examines effects of punishment
Just as cutting edge brain science research has begun to force reformulation of many core assumptions in the justice system, modern punishment theories could be radically altered by empirical research on happiness according to a new article which Doc Berman linked to recently, "Happiness and Punishment, by law and economics professors John Bronsteen, Christopher Buccafusco and Jonathan Masur out of the University of Chicago,.
These law profs say an increasingly mature field of research known as "hedonic psychology," or simply hedonics, has developed tools for longitudinal measurements of happiness and a consensus on the effect of punishment on people's happiness levels. Based on this research, their article examines "how and to what extent do fines and incarceration negatively affect happiness or well-being," then demonstrates how the results have major implications for utilitarian, retributivist, and mixed punishment theories.
Much early hedonics research focused on people with disabilities, resulting in the surprising discovery that their happiness levels adapted quite well to even radically changed physical circumstances. (An early study found little difference in happiness levels among groups of para/quadraplegics compared with lottery winners!) Within this relatively new subspecialty:
That said, humans adapt to some changes much better than others, it's just that incarceration and money fines aren't the big triggers. Researchers say the post-incarceration stigma and harm from severing family and societal ties is actually the greater "punishment," if punishment is defined as reducing "happiness."
The rest of the article applies this analysis to various, currently popular punishment theories. In particular, the discovery argues against the so-called utilitarian assumption that "the deterrent 'punch' of punishment [is] equal to the pain that punishment inflict[s] upon an offender." Thus to maximize deterrence, according to this worldview, one must maximize prison sentence lengths:
Research on happiness and punishment similarly throws a wrench in the gears of retributivist punishment theory, which holds that punishment should be based on what the offender deserves, not maximizing social happiness. If punishment must be based on deserts, though, then everyone receiving the same, harsh post-incarceration punishment is decidedly unjust, while the failure of longer incarceration lengths to punish more harshly calls into question whether they're justified based on desert alone.
Other "mixed" models of punishment similarly find their underlying assumptions challenged by hedonics, the authors show.
These research findings cast light on an obscure set of assumptions underlying how the criminal justice system assigns punishment. According to a hedonic analysis, "to some considerable extent, only two significant levels of punishment exist (any fine or any imprisonment)." Otherwise, say the authors, differences in punishments fail to impact the individual by reducing their happiness a greater amount. And the harshest punishments are applied across the board, even to the lowest level nonviolent offender.
I don't present this research to argue for any particular interpretation or punishment theory, nor do I fully understand yet all the implications for how this analysis might inform modern sentencing practices. I merely found the results interesting and probative, so I'm sharing them.
Questions raised by hedonics strike at core, first-order assumptions about the effects of punishment, some of which may turn out to be wholly incorrect. For the most part, they're questions about which no one had previously provided any evidence-based answers, so in that sense this research is quite exciting, cutting edge stuff.
These law profs say an increasingly mature field of research known as "hedonic psychology," or simply hedonics, has developed tools for longitudinal measurements of happiness and a consensus on the effect of punishment on people's happiness levels. Based on this research, their article examines "how and to what extent do fines and incarceration negatively affect happiness or well-being," then demonstrates how the results have major implications for utilitarian, retributivist, and mixed punishment theories.
Much early hedonics research focused on people with disabilities, resulting in the surprising discovery that their happiness levels adapted quite well to even radically changed physical circumstances. (An early study found little difference in happiness levels among groups of para/quadraplegics compared with lottery winners!) Within this relatively new subspecialty:
Among its most robust and consistent findings are two that are highly relevant to the study of punishment: 1) most life events, whether positive or negative, exert little lasting effect on an individual’s well-being because people adapt rapidly to them; and 2) people do not recognize or remember how quickly they adapt and thus make very poor estimates about the hedonic impact of future events. Studies have shown that, after immediate, short-term changes, people rapidly return to prior levels of well-being following experiences ranging from learning that they scored poorly on a personality test to becoming paraplegic.Over the past three decades, researchers focused these new tools on both the subjects of incarceration and financial loss, with potentially profound implications for how most of us think about punishment. Here's a good summary of what they describe as a consensus among existing research on happiness and punishment:
Contrary to expectations, adjusting the size of a fine or the length of a prison sentence does not meaningfully adjust the amount of unhappiness that is ultimately experienced by the offender. Paying more money or staying in prison for a longer period are highly susceptible to adaptation. As a result, virtually any fine imposes only fleeting harm. On the other hand, virtually any term of imprisonment imposes large and lasting harm by causing disease, unemployment, and loss of social connection; but longer prison terms do not diminish happiness much more than do shorter ones. It is therefore impossible to tailor a punishment to fit the severity of a crime, given the penal options available.There are major implications for this finding, which the authors accurately characterize as "depriving punishment of proportionality."
That said, humans adapt to some changes much better than others, it's just that incarceration and money fines aren't the big triggers. Researchers say the post-incarceration stigma and harm from severing family and societal ties is actually the greater "punishment," if punishment is defined as reducing "happiness."
While adaptation seems pervasive, further research has demonstrated its limits. Thus, people are less likely to adapt to some health-related stimuli like noise, chronic headaches, and certain degenerative diseases such as rheumatoid arthritis, multiple schlerosis, HIV/AIDS, and hepatitis C infection. Additionally, socially relevant stimuli such as divorce, the death of a spouse, and unemployment prove incredibly difficult to adapt to, with hedonic penalties lasting even after remarriage or reemployment.The authors substantively discuss the major research backing up these findings, for those interested - I'm just hitting the highlights of a pretty substantial article. But it's a fascinating and counterintuitive notion that the portion of the punishment causing offenders the most unhappiness isn't prison but what happens to them when they get out. It makes sense, though, once you see the research about what does and doesn't affect happiness:
People who have spent any time in prison are significantly more likely to experience chronic, stress-related health impairments, unemployment, and the breakdown of psychologically vital social ties. Unlike fines and imprisonment itself, these post prison consequences of incarceration are likely to generate substantial and long-lasting hedonic penalties for ex-inmates regardless of the lengths of their sentences. (emphasis added)That last bit is key - the worst punishments according to this view are applied uniformly, after incarceration, regardless of how long someone is locked up.
The rest of the article applies this analysis to various, currently popular punishment theories. In particular, the discovery argues against the so-called utilitarian assumption that "the deterrent 'punch' of punishment [is] equal to the pain that punishment inflict[s] upon an offender." Thus to maximize deterrence, according to this worldview, one must maximize prison sentence lengths:
Among utilitarians, the temptation to impose increasingly harsher penalties is strong and omnipresent. The optimal social frequency of most crimes is exactly zero; the country would likely be better off if there were no murders, no armed robberies, no assaults, and so forth. ... Rather, from a utilitarian perspective, the most significant check on the degree of punishment is the cost associated with the punishment itself.However, if there's limited utility from deterrence due to longer punishments - i.e., if the punishment instituted is no harsher from the recipients' perspective when sentences are longer - then the only utilitarian purpose remaining for longer sentences would be cases where safety requires straight-up incapacitation. That's a significant group, to be sure, but only a small subset of those receiving years-long sentences now.
Research on happiness and punishment similarly throws a wrench in the gears of retributivist punishment theory, which holds that punishment should be based on what the offender deserves, not maximizing social happiness. If punishment must be based on deserts, though, then everyone receiving the same, harsh post-incarceration punishment is decidedly unjust, while the failure of longer incarceration lengths to punish more harshly calls into question whether they're justified based on desert alone.
Other "mixed" models of punishment similarly find their underlying assumptions challenged by hedonics, the authors show.
These research findings cast light on an obscure set of assumptions underlying how the criminal justice system assigns punishment. According to a hedonic analysis, "to some considerable extent, only two significant levels of punishment exist (any fine or any imprisonment)." Otherwise, say the authors, differences in punishments fail to impact the individual by reducing their happiness a greater amount. And the harshest punishments are applied across the board, even to the lowest level nonviolent offender.
I don't present this research to argue for any particular interpretation or punishment theory, nor do I fully understand yet all the implications for how this analysis might inform modern sentencing practices. I merely found the results interesting and probative, so I'm sharing them.
Questions raised by hedonics strike at core, first-order assumptions about the effects of punishment, some of which may turn out to be wholly incorrect. For the most part, they're questions about which no one had previously provided any evidence-based answers, so in that sense this research is quite exciting, cutting edge stuff.
Friday, September 05, 2008
Two Texecutions scheduled next week, but will either one go through?
Texas has a dozen more executions scheduled in 2008, including two back to back next Thursday and Friday.
The first of those, Gregory Wright, will receive a stay, reports the Dallas News' Crime Blog, to allow DNA testing the defendant hopes will support his actual innocence claims. If there's biological evidence to be tested, I don't know why the courts wouldn't allow it until the 11th hour, but if it turns out to belong to someone else, Wright wouldn't be the first person freed from death row based on DNA evidence.
The other scheduled execution has been the source of more attention here on Grits: Charles Dean Hood is still scheduled to meet his Maker next Friday, but a new judge (the last one recused himself) yesterday moved up the date for the civil hearing to determine whether Hood will get to depose the judge and prosecutor from his 1990 capital murder case to find out if they were conducting a romantic affair during the trial. Reports AP, "State District Judge Greg Brewer in suburban Dallas moved the date to Monday, two days before convicted killer Charles Dean Hood is set to die."
This is some high drama, isn't it? Will the judge finally allow their depositions? If so, that could happen as early as Monday. AP reported:
More importantly, even, than Charles Hood: If this alleged 6-year affair is admitted, what happens to the hundreds (thousands?) of convictions obtained by O'Connell's office in Judge Holland's court during that stretch in the late '80s and early '90s? What a mess!
Even Attorney General Greg Abbott thinks these questions need answering before Hood is finally executed. According to the Moratorium Network blog: "The Dallas Morning News says a stay may be on the horizon in the case of Charles Hood after the Texas Attorney General's office said it would file a legal brief today asking that the trial court fully review the matter, even if it means delaying the execution." Though AG Greg Abbott said there "appears to be little doubt that Hood deserves the sentence he was given,"
Even if the two principles belatedly admit to an illicit relationship, it's hard to decipher what happens next. The AG called for the original trial court to revisit this issue, while a letter from retired judges and prosecutors earlier this week called on Governor Perry and the Board of Pardons and Parole to give Hood a temporary reprieve.
If Holland (pictured at right) and O'Connell deny they had an affair on Monday, or if the new judge won't let the pair be deposed, I'd anticipate Hood's execution will go forward next Friday as scheduled. If not, this could mushroom quickly into a lot bigger story.
As for the question in the title of the post: I'd put the odds at a little better than 50-50 that Hood gets a stay, mostly because I think if Holland and O'Connell didn't have an affair they would have denied it long ago, and I doubt two experienced lawyers are dumb enough to perjure themselves. Having said that, if they did engage in the alleged conduct they're clearly unethical enough to do so. Quien sabe? Who knows what will happen? Stay tuned.
The first of those, Gregory Wright, will receive a stay, reports the Dallas News' Crime Blog, to allow DNA testing the defendant hopes will support his actual innocence claims. If there's biological evidence to be tested, I don't know why the courts wouldn't allow it until the 11th hour, but if it turns out to belong to someone else, Wright wouldn't be the first person freed from death row based on DNA evidence.
The other scheduled execution has been the source of more attention here on Grits: Charles Dean Hood is still scheduled to meet his Maker next Friday, but a new judge (the last one recused himself) yesterday moved up the date for the civil hearing to determine whether Hood will get to depose the judge and prosecutor from his 1990 capital murder case to find out if they were conducting a romantic affair during the trial. Reports AP, "State District Judge Greg Brewer in suburban Dallas moved the date to Monday, two days before convicted killer Charles Dean Hood is set to die."
This is some high drama, isn't it? Will the judge finally allow their depositions? If so, that could happen as early as Monday. AP reported:
Brewer ordered retired Judge Verla Sue Holland and former Collin County District Attorney Tom O’Connell to be ready to be interviewed by lawyers Monday — if Brewer, after the hearing, agrees with Hood’s attorney that the pair should be deposed.And what will these two say when finally forced to break their silence? They could just deny it, though if it's a lie, perjury would get them in more trouble than they'd likely be in otherwise. (So often it's not the original sin but the coverup that winds up nailing public officials.) Even if they admit the affair, will the Texas courts act on the information or allow Hood's execution to go forward anyway? Would it be the trial court or the Court of Criminal Appeals who makes such a call? The last of Hood's habeas appeals, as I understand it, have all been denied.
More importantly, even, than Charles Hood: If this alleged 6-year affair is admitted, what happens to the hundreds (thousands?) of convictions obtained by O'Connell's office in Judge Holland's court during that stretch in the late '80s and early '90s? What a mess!
Even Attorney General Greg Abbott thinks these questions need answering before Hood is finally executed. According to the Moratorium Network blog: "The Dallas Morning News says a stay may be on the horizon in the case of Charles Hood after the Texas Attorney General's office said it would file a legal brief today asking that the trial court fully review the matter, even if it means delaying the execution." Though AG Greg Abbott said there "appears to be little doubt that Hood deserves the sentence he was given,"
As Attorney General, I believe that the unique issues in this case, which involve the impartiality and fairness of his trial, warrant thorough review before his sentence is carried out. Tomorrow, the Office of the Attorney general will file an amicus brief asking the trial court to fully review the matter, even if doing so requires delaying the defendant's execution.
Even if the two principles belatedly admit to an illicit relationship, it's hard to decipher what happens next. The AG called for the original trial court to revisit this issue, while a letter from retired judges and prosecutors earlier this week called on Governor Perry and the Board of Pardons and Parole to give Hood a temporary reprieve.If Holland (pictured at right) and O'Connell deny they had an affair on Monday, or if the new judge won't let the pair be deposed, I'd anticipate Hood's execution will go forward next Friday as scheduled. If not, this could mushroom quickly into a lot bigger story.
As for the question in the title of the post: I'd put the odds at a little better than 50-50 that Hood gets a stay, mostly because I think if Holland and O'Connell didn't have an affair they would have denied it long ago, and I doubt two experienced lawyers are dumb enough to perjure themselves. Having said that, if they did engage in the alleged conduct they're clearly unethical enough to do so. Quien sabe? Who knows what will happen? Stay tuned.
Thursday, September 04, 2008
When, if ever, should police shoot at moving cars?
The Senate Criminal Justice Committee earlier this year held a hearing on causes of law enforcement officer deaths and ways to prevent them, so I was interested to see a discussion in the Dallas News about whether a law enforcement officer who believes a driver is trying to run him over should shoot at the vehicle ("Police policies on shooting at cars differ," Sept. 4). A criminologist from South Carolina offered this advice that might save lives: "If you've got time to pull and point your weapon," he said, "use that time to get out of the way."
The News examines Metroplex police department policies on shooting at moving cars and discovers they're all over the map:
Giving officers such discretion also leaves to chance whether an officer misinterprets a driver's intent and shoots someone who wasn't intentionally trying to harm them, as was claimed in the Garland case and in other high profile reported around the country that spawned changes in other cities' policies.
There are obvious problems with shooting at moving cars. For starters, it puts bystanders at risk when officers miss. Not only that, if they're successful in disabling the driver, the vehicle might wreck and injure more innocent people, or else harm the officer who's now standing in front of the car and shooting instead of dodging out of the way. In the Garland case described in the News story, the suspect took two bullets, drove away, then crashed the car down the road. Here are the details:
Policies giving police wide discretion to shoot at moving vehicles put the public at risk and force officers to evaluate options at a moment when their safety is best served by them getting out of the way.
The News examines Metroplex police department policies on shooting at moving cars and discovers they're all over the map:
The language in the Fort Worth policy strikes me as the example most likely to minimize injury and general harm while giving officers full authority to protect themselves. By comparison, the Garland policy authorizing shooting at vehicles to "prevent the escape of a violent felon" leaves open the possibility of using of force in a variety of troubling circumstances.Dr. [Geoffrey] Alpert, who studies police use of force, believes agencies should ban shooting at moving vehicles except in extreme cases, such as if an officer has fallen or is trapped with no escape and deadly force is a last resort.
"And these extreme situations should be detailed," he said.
The Garland Police Department's policy authorizes the use of deadly force to "protect the officer or others from what is reasonably believed to be a threat of death or serious injury" or to prevent the escape of a violent felon. It doesn't address shooting at moving vehicles, but other local departments do.
The Dallas Police Department limits but doesn't ban the practice: "Discharging a firearm at a moving vehicle is prohibited unless necessary to prevent imminent death or serious bodily injury to the officer or another person."
The Fort Worth police policy says: "We will not shoot at moving vehicles unless there is no other option due to the risk of imminent serious injury or death."
Plano police also limit the use of deadly force against moving vehicles "except in self-defense, the defense of another police officer, or another person."
"The assumption that a fleeing vehicle is a deadly weapon ... is not in itself justification to use deadly force," said Officer Rick McDonald, a Plano police spokesman.
But Garland isn't the only agency that leaves the matter to an officer's discretion.
Maj. Charles Ruckel of the Collin County Sheriff's Department said that agency's policy doesn't address moving vehicles.
"If an officer's life is in danger or the life of another, they can use deadly force," Maj. Ruckel said.
The Texas Department of Public Safety, which includes the Highway Patrol, Texas Rangers and other state agencies, doesn't address the matter in its policy guidelines because "every situation is different," spokeswoman Tela Mange said.
"It's officer discretion," she said. "If they perceive that there's an imminent threat, they can take any action they feel necessary to protect themselves."
State policyLocal agencies can write their own policies on the use of deadly force, said Frank Woodall of the Texas Commission on Law Enforcement Officers Standards and Education, the state agency that licenses police officers.
But he said individual policies must be at least as restrictive as the state's basic police academy curriculum, which cites the Penal Code authorizing deadly force to defend oneself or a third person from an imminent lethal threat.
"That's the minimum that has to be taught," Mr. Woodall said.
However, the curriculum doesn't address shooting at moving vehicles.
Giving officers such discretion also leaves to chance whether an officer misinterprets a driver's intent and shoots someone who wasn't intentionally trying to harm them, as was claimed in the Garland case and in other high profile reported around the country that spawned changes in other cities' policies.
There are obvious problems with shooting at moving cars. For starters, it puts bystanders at risk when officers miss. Not only that, if they're successful in disabling the driver, the vehicle might wreck and injure more innocent people, or else harm the officer who's now standing in front of the car and shooting instead of dodging out of the way. In the Garland case described in the News story, the suspect took two bullets, drove away, then crashed the car down the road. Here are the details:
Luckily in this instance the shot suspect only caused additional property damage, but it's easy to imagine a scenario where someone veers into a crowded sidewalk instead of just a parked car.Charlie Wright kept driving, even after being shot twice early Aug. 23 by an officer who believed the 19-year-old was trying to run him down in the driveway of a gated apartment complex.
Garland police spokesman Joe Harn said Officer C. Stallings fired "several rounds" at Mr. Wright about 2:30 a.m. in the 2700 block of Lookout Drive, where police were investigating reports of a loud party.
"Our officers have a right to defend themselves," Officer Harn said.
But Mr. Wright insists he wasn't trying to hurt anyone.
"I didn't see the officer until the shots were fired," said Mr. Wright, who says he was shot through an open passenger-side window and from the back.
Wounded in the right shoulder and left thigh, he drove away from the apartments and was spotted about three miles away going the wrong way in the 2800 block of Belt Line Road, near Jupiter Road. He was arrested after hitting a parked car.
Policies giving police wide discretion to shoot at moving vehicles put the public at risk and force officers to evaluate options at a moment when their safety is best served by them getting out of the way.
Wednesday, September 03, 2008
Former judges and prosecutors: Investigate official misconduct before executing Charles Dean Hood
Here's another dramatic turn of events in the Charles Dean Hood case: Attorneys for Mr. Hood learned today that State District Judge Robert Dry has recused himself. Dry had earlier acknowledged he personally knew both the Collin County judge and prosecutor involved who allegedly carried on a romantic affair during Hood's capital murder trial, but before now he'd refused recusal. (UPDATE: Here's an initial AP report on Dry's recusal, which he announced citing a "previous business relationship with the ex-husband of now-retired Judge Verla Sue Holland.")
No word on whether Dry's decision means next week's hearing will now be expedited to occur before Hood's execution date, which presently is set for Sept. 10. But pressure is mounting for Governor Perry to delay Hood's date with death long enough for courts to investigate allegations of judicial and prosecutorial misconduct. Relatedly, this came in today from Hood's attorneys via email:
Bottom line: If Judge Holland or Mr. O'Connell had once ever denied these charges, the controversy would have died down by now. Their refusal to address these scandalous allegations unnecessarily fueled the fire. Whether the affair occurred or not, it's obvious that the interests of justice were poorly served by their silence.
No word on whether Dry's decision means next week's hearing will now be expedited to occur before Hood's execution date, which presently is set for Sept. 10. But pressure is mounting for Governor Perry to delay Hood's date with death long enough for courts to investigate allegations of judicial and prosecutorial misconduct. Relatedly, this came in today from Hood's attorneys via email:
Today, a letter from 22 former federal and state judges and prosecutors (pdf) from Texas and across the country was delivered to Governor Perry urging him to grant a 30-day reprieve to Charles Dean Hood who is scheduled for execution on Wednesday, September 10, 2008. The former judges and prosecutors are asking the governor to grant a reprieve to allow the Texas courts to conduct a meaningful review of the allegations of a secret romantic relationship between Judge Verla Sue Holland, who presided over Mr. Hood’s 1990 capital murder trial, and former Collin County District Attorney Thomas O’Connell, who prosecuted the case.See initial coverage from the Austin Statesman and AP.
The letter states: “We write because our long experience as jurists and law enforcement officials leads us to believe that justice cannot be served unless the courts are able to consider whether Mr. Hood’s conviction and sentence are invalid.”
Signatories to the letter include: John J. Gibbons, former Chief Judge, United States Court of Appeals for the Third Circuit; W.J. Michael Cody, former Attorney General of Tennessee; J. Joseph Curran, former Attorney General of Maryland; William S. Sessions, former Chief Judge, United States District Court for the Western District of Texas and former Director of the FBI; Kenneth J. Mighell, former United States Attorney, Northern District of Texas; Jay Burnett, former Criminal District Court Judge, Texas; and Sam D. Millsap, former District Attorney, Bexar County, San Antonio, Texas.
The former judges and prosecutors say that “Mr. Hood’s claim appears on its face to have substantial credibility.” In June, a former assistant district attorney who worked in the office with Mr. O’Connell filed an affidavit stating that “[i]t was common knowledge in the District Attorney’s Office, and the Collin County Bar, in general, that the District Attorney…and Judge Verla Sue Holland had a romantic relationship.” Mr. Hood’s trial attorney and a private investigator have also signed affidavits corroborating this claim.
To-date, the Texas courts have refused to consider the charges on their merits or allow an investigation before the scheduled execution. Judge Robert Dry of the 199th Judicial District Court has scheduled a hearing on Mr. Hood’s request to take investigatory depositions of Judge Holland and former District Attorney Tom O’Connell on September 12, 2008 – two days after the scheduled execution.
“It is an irrevocable wrong to send a man to his death without ever hearing this critical evidence,” the letter from the former judges and prosecutors states.
Earlier this summer, the nearly 500-member Association of Professional Responsibility Lawyers and three dozen of the nation’s leading legal ethicists also called Mr. Hood’s conviction into question (pdf). They say the affair constitutes a violation of Mr. Hood’s constitutional rights and must be investigated.
Bottom line: If Judge Holland or Mr. O'Connell had once ever denied these charges, the controversy would have died down by now. Their refusal to address these scandalous allegations unnecessarily fueled the fire. Whether the affair occurred or not, it's obvious that the interests of justice were poorly served by their silence.
Tracking Texas' budget
Will Texas prison guards get their 20% raise? Will the Youth Commission get permission to spend bond money on multiple small facilities, or only one big one? Will Texas continue to fund diversion programs or leave local probation departments to fend for themselves?
As in all public policy matters, some of the most important questions about crime and punishment get answered not in court but during the legislative budget writing process. In Texas, thankfully, these procedures are relatively transparent compared to a lot of other states. Travis Fell at Voice in the Wilderness has a great synopsis of what Legislature-watchers need to know about the Texas budget process, including links to key primary sources.
A small addendum: For the topics covered on this blog, it's worth following the actions of the House Appropriations subcommittee on criminal justice, while in the Senate the full Finance Committee typically involves itself in criminal justice appropriations. Also, several of the criminal justice-related agencies are presently up for Sunset review - see here for documents related to that process, which could significantly affect those agencies' structures and funding needs.
As in all public policy matters, some of the most important questions about crime and punishment get answered not in court but during the legislative budget writing process. In Texas, thankfully, these procedures are relatively transparent compared to a lot of other states. Travis Fell at Voice in the Wilderness has a great synopsis of what Legislature-watchers need to know about the Texas budget process, including links to key primary sources.
A small addendum: For the topics covered on this blog, it's worth following the actions of the House Appropriations subcommittee on criminal justice, while in the Senate the full Finance Committee typically involves itself in criminal justice appropriations. Also, several of the criminal justice-related agencies are presently up for Sunset review - see here for documents related to that process, which could significantly affect those agencies' structures and funding needs.
Jail standards commission needs greater healthcare focus
Interested readers should see recommendations for the Texas Commission on Jail Standards submitted to the Sunset Commission from Matt Simpson at the ACLU of Texas, compiled in response to a survey of advocates. Key proposals include stricter evaluation of medical care provided at county jails and improving medical care and services for pregnant inmates.
I agree with most of what Simpson has proposed, but this statement in particular strikes me as only 2/3 correct: "Currently, the statutory authority of TCJS does not allow it to inspect in a meaningful way the quality of medical care, the quality of mental health services, or the conditions of confinement."
While it's accurate TCJS has no capacity for meaningful oversight of jail medical services, they do a pretty good job IMO of identifying problems with "conditions of confinement." The bigger dilemma in that regard, and TCJS' own agency self-evaluation (pdf - p. 13) said the same thing - is that the agency suffers from a "lack of enforcement options available to bring jails into compliance." In other words, TCJS rules need more teeth.
Simpson's right, though,that TCJS presently has no staff qualified to evaluate jails' delivery of medical care. Current TCJS inspections ensure at least that medical grievance procedures exist, but the agency has no way to tell whether appropriate care was given. What's more, TCJS has no authority nor capacity to go in after specific incidents to see whether rules have been broken.
In particular, I'd like to see TCJS perform after-action reviews in certain jail deaths - perhaps along the lines of hospitals' morbidity and mortality conferences - to identify causation and what if any procedural fixes might have prevented what happened. Perhaps that's not necessary in every instance, but we've seen jail deaths recently that cry out for greater oversight by the state.
For more on this subject, see earlier recommendations for the jail commission's sunset review from Bob Libal at Texas Prison Business and from the Texas Jail Project.
I agree with most of what Simpson has proposed, but this statement in particular strikes me as only 2/3 correct: "Currently, the statutory authority of TCJS does not allow it to inspect in a meaningful way the quality of medical care, the quality of mental health services, or the conditions of confinement."
While it's accurate TCJS has no capacity for meaningful oversight of jail medical services, they do a pretty good job IMO of identifying problems with "conditions of confinement." The bigger dilemma in that regard, and TCJS' own agency self-evaluation (pdf - p. 13) said the same thing - is that the agency suffers from a "lack of enforcement options available to bring jails into compliance." In other words, TCJS rules need more teeth.
Simpson's right, though,that TCJS presently has no staff qualified to evaluate jails' delivery of medical care. Current TCJS inspections ensure at least that medical grievance procedures exist, but the agency has no way to tell whether appropriate care was given. What's more, TCJS has no authority nor capacity to go in after specific incidents to see whether rules have been broken.
In particular, I'd like to see TCJS perform after-action reviews in certain jail deaths - perhaps along the lines of hospitals' morbidity and mortality conferences - to identify causation and what if any procedural fixes might have prevented what happened. Perhaps that's not necessary in every instance, but we've seen jail deaths recently that cry out for greater oversight by the state.
For more on this subject, see earlier recommendations for the jail commission's sunset review from Bob Libal at Texas Prison Business and from the Texas Jail Project.
Tuesday, September 02, 2008
NPR focuses on pitfalls of informant use
I've been critical of law enforcement relying too heavily on confidential informants when they contribute to police corruption and falsely accuse innocent people, but an NPR story today shows snitches can also cause loads of trouble when they make false allegations against their police handlers.
National Public Radio is running a three part series on the use of snitches by law enforcement, particularly in the FBI. The first installment focused on the Whitey Bulger case out of Boston that's been a frequent topic of discussion on this blog.
Today's story focuses on informants who falsely accused their handlers of crimes, honing in on the story of a New York FBI agent, Lin DeVecchio, who racked up hundreds of thousands of dollars in legal bills fighting false claims by a much relied-upon mob informant:
Tomorrow NPR will focus on a bill in Congress that would hold law enforcement accountable for the crimes of their informants. I'm pretty sure that legislation stems from revelations at a committee hearing last year covered on Grits where the FBI refused to reassure Congress that they do not tolerate "serious violent felonies" by their informants and would not promise to notify local authorities when snitches committed serious crimes. I'm interested to learn there's federal legislation on the topic and look forward to learning more details.
Good stuff from NPR on a topic that's only recently begun to get the serious media attention it deserves.
UPDATE: Here's the NPR story about the (not-yet filed) federal legislation.
National Public Radio is running a three part series on the use of snitches by law enforcement, particularly in the FBI. The first installment focused on the Whitey Bulger case out of Boston that's been a frequent topic of discussion on this blog.
Today's story focuses on informants who falsely accused their handlers of crimes, honing in on the story of a New York FBI agent, Lin DeVecchio, who racked up hundreds of thousands of dollars in legal bills fighting false claims by a much relied-upon mob informant:
Part of the problem lies with the fact that police must build up their informants' credibility with the courts in order to convict the bad guys, so if they accuse an innocent person or a police officer, there's a presumption they're telling the truth. As Agent DeVecchio lamented in the story, ""My question is, where do I go to get my reputation back?"Jim Kossler was the coordinating supervisor for organized crime for the FBI in New York — DeVecchio's boss. He says that what happened to DeVecchio has become a cautionary tale for agents in the field.
"I mean this story is so unbelievable," says Kossler. "The fallout of it as it relates to how the bureau does its business in the future — it is going to have a great impact."
Kossler says agents can't help but think about what they put at risk — personally — when they tap a criminal to get them inside information. DeVecchio paid a heavy price. Among other things, he lost his reputation, and he even lost his business.
"He had a pretty good investigative business," says Kossler. "And he lost that whenever he got indicted. He couldn't work. When you get indicted like that, it is a harrowing experience. He handled it very well. I don't know if I could handle it."
Tomorrow NPR will focus on a bill in Congress that would hold law enforcement accountable for the crimes of their informants. I'm pretty sure that legislation stems from revelations at a committee hearing last year covered on Grits where the FBI refused to reassure Congress that they do not tolerate "serious violent felonies" by their informants and would not promise to notify local authorities when snitches committed serious crimes. I'm interested to learn there's federal legislation on the topic and look forward to learning more details.
Good stuff from NPR on a topic that's only recently begun to get the serious media attention it deserves.
UPDATE: Here's the NPR story about the (not-yet filed) federal legislation.
The bill — as envisioned by Rep. William Delahunt (D-MA) — would subject FBI agents to criminal prosecution if they don't alert local law enforcement when one of their informants has committed a crime. ...The story reminds us that dismay in Congress over misusing informants goes back at least to the publication of this 2005 report (pdf) by the USDOJ Inspector General, which found discrepancies in 87% of informant files reviewed. (See coverage from Slate and the Federal Crimes Blog.) Then in 2007, the House Judiciary Committee held hearings on the subject. (See Grits' coverage of the hearing last July.) Delahunt's concerns particularly derive from the Whitey Bulger case in Boston; see this 5-minute excerpt from his questions to the FBI on the topic at a Congressional hearing last July:
The attorney general is expected to release revised guidelines for FBI investigative procedures in the next couple of weeks. Delahunt says he'd like to see those provisions before he moves ahead with his bill. Rep. Dan Lungren (R-CA) has been working with Delahunt on the bill.
Do taxpayer-funded ads contaminate DWI jury pools?
While attorneys have long railed against taxpayer funded sloganeering over DWI, at The Matlock Blog, defense lawyer Shawn Matlock suggests an hypothesis I've long harbored in some deeply cynical pocket of my soul but never publicly pronounced: Is the main, real-world function of anti-DWI advertising of the type Texans see everywhere on billboards and television, essentially to contaminate the jury pool? If not in intent, certainly I think that occurs in practice. Matlock writes:
To give credit where it's due, Shawn isn't the first Tarrant County lawyer to notice the mendacious overreach of these now ubiquitous billboards and ads. According to Alcohol Problems and Solutions:
I've thought since I first saw them these billboards were misleading and relied on a poor message that's factually inaccurate - they're writing PR checks, so to speak, that the justice system can't cash. Matlock's conversation with his Dad shows why that's harmful and not just wrong, wasteful and dumb.Not too long ago, I had a conversation with my father about some federal case I had where there were some complex search and seizure issues. I tried to explain to my twenty-ninth generation Texan, former rodeo cowboy, straight-talking father that the government can’t actually just walk into your house and seize everything on a hunch. To my dismay, he apparently assumed the government could.
As I began to dissect this somewhat horrifying situation, the conversation turned to DWI cases. My father quizzed me on how I defend (or at least try) various DWI cases. I explained the common fact scenarios for a DWI case that might go to trial. During the middle of the conversation, my father interrupted me to state very matter-of-factly that “If you drink and drive, you go to jail. End of story.”
Somewhere, a Texas prosecutor is smiling. It dawned on me. Those billboards are not about deterrence. Whoever came up with that slogan wasn’t thinking that the campaign was going to stop anyone from having a drink before driving. The purpose of these billboards is to contaminate the jury pool.
You see, after I wiped the drool from the sides of my mouth, I tried to explain that that little catch-phrase is not actually Texas law. I went over the definition of intoxication and explained how a typical DWI case is constructed. I even went so far as to show him a copy of a jury charge that I happened to have saved onto my laptop.
Despite all of that, he wasn’t sure. He had questions about how the definition of intoxication worked with the catch-phrase. He questioned the thinking of someone that drank before driving knowing that it was against the law. The point is, he was swayed by the billboard. He was confused by billboard because he thought for the longest time that the billboard was the law.
To give credit where it's due, Shawn isn't the first Tarrant County lawyer to notice the mendacious overreach of these now ubiquitous billboards and ads. According to Alcohol Problems and Solutions:
Of course, its only illegal to drive with a blood alcohol concentration (BAC) of .08 or higher. Therefore, the billboards present a falsehood apparently intended to intimidate drivers into abstinence.
In reaction to these dishonest billboards, Mimi Coffey of Fort Worth has posted a billboard of her own. “Drink, Drive -- go to jail. Another government lie.” (Dallas Morning News, 4-22-04) She earlier posted a billboard asking rhetorically “Who said responsible social drinking is illegal?”
Ms. Coffey wants both the Texas Department of Transportation, which created the slogan, and anti-alcohol activists to stop putting out propaganda that’s creating an atmosphere of terror. She says the crusade unnecessarily scares people and is part of an effort to discourage alcohol consumption under any circumstances.
To be sure, public education programs have done a lot to reduce many vices from cigarette smoking and drunk driving particularly those that focus on truth telling instead of promoting inaccurate hype, so I don't think any reaction should throw out the baby with the bathwater. The real issue in the example of TXDOT's ads, IMO, is that the PR campaign is obviously, factually inaccurate, not necessarily that government should not ever fund them.
I also wonder about the wisdom of a) overhyping the actual, real-world risks of what is usually a victimless crime, and b) failing to focus on reasons for not driving drunk besides just fear of short-term incarceration. That message only goes so far, especially when claims of the tactic's effectiveness were seriously overstated in the first place.
Why are attorneys leaving the Dallas Public Defender's office?
Five attorneys have resigned from the Dallas Public Defender's office in the past month thanks to oversized caseloads and pressure from the county commissioner's court to short-change clients legal representation via a new, weekly reporting system. Two of those lawyers - Mike Howard and David Woodruff - just opened their own practice, and their website includes a blog whose first post gives their reasons for leaving the PD office:
Good luck to Howard, Woodruff, the others who've departed and everybody they left behind at the PDs office, who are clearly going through a rough stretch. The irony is, these lawyers will continue to represent indigent defendants at the courthouse, I'm sure. The only difference will be that in both the short and long haul, their services will cost the county more.
MORE: Unfair Park, which profiled Howard a couple of years ago, comments on recent public defender defections.
See related Grits posts:
It should be mentioned that attorneys must now take 40 NEW cases each month, but without a similar statistical emphasis on dispositions. So unless they become essentially a cog in the plea mill machine, this rule insists that PDs caseloads will balloon exponentially over time, quickly devolving into absurdity with PDs expected to zealously represent hundreds of clients with serious felony cases at any one time. The commissioners court has demanded these attorneys choose between their job and their ethics to the detriment of the taxpayers and the justice system.A while back the county commissioners’ court started making life difficult for the PDs for seemingly no reason. We had always been required to keep monthly stats on our docket (number of cases appointed, pending cases, cases disposed by trial, plea, revocation, et cetera) and that was okay. But then the commissioners wanted weekly stats. Why? Who knows. I mean all you have to do is divide our monthly stats by four and you have a pretty good idea what we did on a weekly basis. And because they wanted them in different formats, it meant keeping two sets of stats. And then they wanted us to use an absolutely worthless case management program. So with stats and the new program, every time I did anything, it took about three times as long as it should. When you add that on top of the legendary heavy caseload a PD juggles, it’s a recipe for disaster.
And that brings us to the caseload. Until a few months ago, there was no written rule about how many cases we had to carry. But supposedly some people weren’t carrying their weight. But instead of addressing those specific problems (if there were problem people not carrying their weight the commissioners would’ve known just who they were based on the various stats they kept), they upped the number of cases we all had to take. First it was 30 new cases a month for felony attorneys. Then 35. Then 40. 40! 40 felonies a month. And many of us handled little or no “easy” cases like probation violations. Try handling 40 1st, 2nd, and 3rd degree felonies a month. All my friends outside the PDs office recognized it for what it was: madness.
So all this built up until David and I couldn’t take it. We resigned because we knew we couldn’t give all our clients the representation they deserved with the way the office was headed. And we weren’t alone. In the past month or so five attorneys have resigned. One was even board certified in criminal law. I love the PDs office with all my heart. I respect the attorneys up there and hope they’re able to right the ship. It’s a tragedy that is absolutely pointless if you ask me.
Good luck to Howard, Woodruff, the others who've departed and everybody they left behind at the PDs office, who are clearly going through a rough stretch. The irony is, these lawyers will continue to represent indigent defendants at the courthouse, I'm sure. The only difference will be that in both the short and long haul, their services will cost the county more.
MORE: Unfair Park, which profiled Howard a couple of years ago, comments on recent public defender defections.
See related Grits posts:
- State indigent defense task force: Dallas public defender caseloads too high
- Texas Lawyer: Dallas public defender lacked protection from political winds
- Dallas public defender purge raises legal and policy questions
- Cost per case at Dallas Public Defender much lower than private practice
- 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
Monday, September 01, 2008
Mexico rallies against kidnappings, cartel violence, police corruption
In Mexico, a popular political backlash may be swelling thanks to the rising tide of drug cartel-related killings and the lawlessness left in its wake, at least to judge by reports of a rally in Mexico City Saturday drawing more than 200,000 people in the capital as well as simultaneous rallies in all 32 Mexican states.
Kidnappings more than corrupt cops or even narco-homicides appear to be driving the most public anger, at least in the capital, reported the LA Times:
The old offer to police on the border now applies everywhere in Mexico - plata o plomo, silver or lead. Police who don't comply pay the price, as evidenced by the recent murder of a police chief in Chihuahua State on his first day at the job after he'd replaced another murdered police chief. Nationwide, more than 500 police have been murdered during the recent bout of violence.
There was a time not long ago when serious crime, even by drug runners, was mostly limited to the border region and to seedier regions of the capital. Today the violence has spread to every corner of Mexico.
Thankfully for the United States, so far most of the violence has stopped at the border. The El Paso Times reports that:
Kidnappings more than corrupt cops or even narco-homicides appear to be driving the most public anger, at least in the capital, reported the LA Times:
The abduction anxieties run across a surprisingly wide swath of society. There have been cases in which working-class families were ordered to pay as little as $500 to get a relative back.Whether police were involved in abducting Marti, clearly Mexico must dramatically reduce police corruption to have a prayer of ever defeating deep-pocketed drug cartels. While the United States has its own serious corruption problem, for the most part the public still trusts the cops. In Mexico, police impotence in the face of cartel violence has left them utterly discredited. The New York Times reports that "A big debate circulates over police checkpoints. Should one stop and risk that the people dressed as police officers really are on the side of the law?"
A report by the daily Milenio newspaper said a review of federal statistics showed that only 1 in 8 kidnapping victims was a business executive. About half were in the middle class or below, the newspaper reported.
"They call it an elitist crime because only the rich get kidnapped, but that's not true. They'll kidnap you for $1,000 or $2,000," said Alfredo Neme Martinez, who heads a national association of wholesale merchants.
The kidnapping furor has gripped the country since the death early last month of 14-year-old Fernando Marti. The youth was found dead in Mexico City after his wealthy family, founders of a chain of sporting goods stores, reportedly paid kidnappers millions of dollars for his release.
The case has provoked public outrage by seeming to crystallize the nation's broader problems of crime and corruption, and the failure of successive governments to deal with them. Worse, the abduction may have involved police, stoking a long-held suspicion here that law enforcement officers are more a problem than a cure.
The old offer to police on the border now applies everywhere in Mexico - plata o plomo, silver or lead. Police who don't comply pay the price, as evidenced by the recent murder of a police chief in Chihuahua State on his first day at the job after he'd replaced another murdered police chief. Nationwide, more than 500 police have been murdered during the recent bout of violence.
There was a time not long ago when serious crime, even by drug runners, was mostly limited to the border region and to seedier regions of the capital. Today the violence has spread to every corner of Mexico.
Thankfully for the United States, so far most of the violence has stopped at the border. The El Paso Times reports that:
With more than four months remaining in 2008, there have been almost 900 homicides in Juárez.Still, there was a time when the violence stopped at the borders of Colombia, but that didn't stop drug traffickers influence from steadily creeping north over time. The rallies across Mexico come during the same week that a new US intelligence report predicted cartel-related violence will increase in the near term until one group of traffickers becomes dominant. Again from the El Paso Times:To date in 2008, El Paso has had 12 homicides -- none believed to be related to Mexican drug violence.
"Once a dominant cartel is established in the El Paso-Juárez plaza, stability will return to the area and the flow of drugs most likely will increase," states an annual analysis of the West Texas High Intensity Drug Trafficking Area, or HIDTA, released in May by the National Drug Intelligence Center. ...There's a good chance the main foreign policy debates in the presidential race this fall will mostly be about Iraq, the war on terror and American policy in the Middle East. But Americans, particularly those of us in border states, have a much greater interest in learning what the candidates would do about ascending violence on our own continent than half a planet away.The National Drug Intelligence Center analysis says six major Mexican drug organizations plus 120 multistate groups and 606 local drug trafficking rings are operating in West Texas. The groups range in size from five to dozens of members.
The Mexican cartels also have distribution cells in dozens of cities across the United States, and have formed alliances with prison gangs, street gangs and outlaw motorcycle gangs, stated a Congressional Research Service report issued in February, titled "Mexico's Drug Cartels."
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