Federal judge may reverse ruling on TYC firings

According to Emily Ramshaw at the Dallas News:

A U.S. district judge should overturn his ruling that the Texas Youth Commission improperly terminated two longtime employees after the agency's sexual abuse scandal, a federal magistrate has ruled.

Two weeks ago, Judge Orlando Garcia of San Antonio said the TYC erred when it forced Patricia Logterman and Corinne Alvarez-Sanders to resign or be terminated in mid-2007. The judge made the decision without input from the Texas Attorney General's office, which mistakenly failed to file briefs defending the TYC.

On Wednesday, U.S. Magistrate Judge Pamela Mathy said the court should reconsider the case in light of the state's belated argument. Mathy also said the women should be denied their request for summary judgment, meaning they'll have to take the case to a full trial. Judge Garcia is expected to sign off on the order.

"We are pleased with the magistrate's recommendation," TYC spokesman Jim Hurley said. "This case will now proceed and the merits will be heard."

See earlier Grits coverage from when federal District Judge Orlando Garcia had ruled in favor of the fired employees.

Johnnie Lindsey, Dallas DA, tell exoneration story on daytime TV

Go here to see a clip of DNA exoneree Johnnie Lindsey, Dallas District Attorney Craig Watkins, Lindsey's attorney Michelle Moore and Lindsey's fiance' appearing this morning on the daytime TV show, The View. (N.b., It made me download special software to watch the clip on ABC's site.)

Lindsey was falsely imprisoned for rape for 26 years; he was released last year and I was lucky enough to get to meet him in Dallas on the day he finally got out of prison. Along with about a dozen other exonerees, Johnnie's been down to Austin several times this spring to help lobby for changes to eyewitness identification procedures and other innocence reforms.

Lindsey's is one of the worst eyewitness ID cases I've ever heard of: Detectives on the case MAILED the lineup photos to the victim a full year after the incident occurred and that's how he was identified. Also, the jury in his case 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.

Johnnie's case is profiled on the initial episode of the new TV show Dallas DNA which is currently running on the Investigation Discovery channel.

Via Unfair Park.

BS claim of the day: 'Justice doesn't have anything to do with revenue'

Arlington, TX was the lead example in a USA Today story about cities and counties boosting reliance on traffic ticket and fine revenue to raise money during the economic downturn ("Courts trying to nail fine dodgers," April 29):

Spurred on by tight budgets and long lists of delinquents, courts across the USA are stepping up efforts to catch fine-dodgers who, combined, owe hundreds of millions of dollars in unpaid fines.

Strategies include computer upgrades, bank account garnishment and special court hearings to recoup money owed for everything from parking tickets to penalties for felonies.

"Justice doesn't have anything to do with revenue, but payment of traffic fines is important to each city that has a court," says Arlington, Texas, Deputy City Manager Bob Byrd.

This month, a law firm started combing through 37,011 unpaid fine cases in Arlington, some dating back years, to focus on collecting some of the $7.6 million owed to the court, Byrd says.

Arlingtonstarted getting tough on ticket-dodgers last year, issuing warrants for people who didn't answer Class C misdemeanors after 30 days. According to Byrd, the city pulled in $10.5 million from the payments last fiscal year, up 40% from 2007.

What the article doesn't mention is that, in Texas, this is like shooting fish in a barrel. Thanks largely to excessive fines and fees associated with traffic offenses, more than 10% of Texas drivers have outstanding arrest warrants.

Houston crime lab only reported prosecution friendly evidence

New evidence in a Houston case may or may not exonerate a man convicted of rape, the Houston Chronicle reports ("Houston man likely to be freed after 22 years," April 30), but it definitely exposed egregious misconduct by Houston crime lab personnel:

A Harris County man who spent 22 years in prison for a rape that forensic tests now indicate he did not commit is expected to be freed Thursday.

Gary Alvin Richard's expected release is the latest case to discredit the Houston Police Department's crime lab, which has been under scrutiny since 2002 because of inaccuracies.

Prosecutors and Richard's defense attorney said they will ask a judge to set him free on bail. But the two sides differ on whether recent tests clear Richard of a 1987 rape conviction that resulted in a life sentence.

Defense attorney Bob Wicoff said the new tests prove his client's innocence. Prosecutors agree that the new results contradict crime lab evidence but said they do not know if Richard is innocent.

If cleared, Richard would be the fourth Harris County man to have his conviction overturned because of faulty forensics from the Houston crime lab.

His case was revived as part of a review of more than 150 cases involving questionable blood-typing evidence from the lab. Lawyers discovered in Richard's case that crime lab analysts had conflicting results, but reported conclusions favorable only to the prosecution.

This is another example of a "team spirit" mentality that contributes to many forensic-based false convictions. Houston crime lab workers apparently weren't acting as scientists seeking independent answers but considered themselves part of the prosecution's team, omitting lab results that might not favor the side they wanted to win.

Before this, in the most recent, previous exoneration in Houston, Ronald Taylor's false conviction also resulted from HPD crime lab errors; in that case, bad forensic analysis from the Houston crime lab corroborated an incorrect witness identification. These examples show how a too-close relationship between detectives and crime lab workers can corrupt forensic results. When lab workers are told too much information about the case - e.g., "a witness ID'd him and we just need you to confirm" - they go into the test with a bias about what the results should be.

Such lab errors (if you can call knowingly withholding exculpatory findings an "error") constitute double tragedies because not only does an innocent person go to prison, the real perpetrator cannot be brought to justice. In both cases, the statute of limitations had run out for the actual perpetrator by the time the exonerating evidence was discovered.

While Texas and Houston have both made initial investments and taken first steps toward improving forensic science (by spending money to boost capacity, e.g., and requiring accreditation), the state has yet to do what it takes to make crime labs more independent from law enforcement or figured out how to change the institutional culture that encourages this kind of behavior.

Related Grits posts:

• Houston's Ron Taylor case shows worst possible outcome from forensic errors
  
• Crime lab workers suffered from 'team spirit' mentality
  
• Correcting forensic science errors
  
• Background materials on shoddy forensics
  
• NAS Report: Many forensic disciplines prone to error
• Justice system commonly relies on shoddy forensic science
• Shoddy forensic science ruins real people's lives
  
• CSI-Houston would be dark comedy
  

While I'm out ...

Just a few odds and ends before I head out the door for the day:

Dallas DNA
I wanted to watch and review the new TV show Dallas DNA, which premiered last night, but apparently we don't get the Investigation Discovery channel in Austin. It's focused on the efforts of the Dallas District Attorney's Conviction Integrity Unit and appears to feature quite a few people I've personally gotten to meet over the last year working for the Innocence Project of Texas. Here's an AP report about the series and the debut of its first episode last night.

Exoneree reentry struggles
The Dallas News Crime Blog brings word of a conference for exonerees on Friday in Dallas to help them deal with their reentry struggles.

Will expanded DNA database contribute to crime solving backlog?
According to an ACLU of Texas fact sheet (pdf) about Sen. Dan Patrick's SB 727 (discussed on Grits here), a bill which would vastly expand Texas' offender-DNA database to include probationers and juveniles, "A recent report on the expansion of California’s DNA databank shows that expanding the database to all felons resulted in delays of six months or more in analyzing rape kits. In one case, a rapist attacked two more victims, including a child, while his DNA sat on a shelf awaiting analysis." The bill "will cost over $4 million in State Highway 6 funds for the Department of Public Safety to process the DNA" and require new fees from probationers.

Immigrant hunger strikers demanding right to bail
Democracy Now! has a feature on 100 hunger striking prisoners at a federal immigration detention center in Port Isabel, TX. A spokesman for the hunger strikers said they're demanding the federal government recognize their constitutional right to a reasonable bail while their civil court proceedings progress. The also interview Bob Libal of Grassrooots Leadership who blogs over at Texas Prison Bidness. Here's the video (the Port Isabel story is first up):

Should it be a felony to steal a $35 goat?

(Updated and corrected.) A senate bill being heard today in the Texas House Criminal Jurisprudence Committee - SB 1163 by Seliger - to me is a classic case study of how the road to hell (or at least bad public policy) is frequently paved with good intentions.

Sen. Seliger's bill would make it a third degree felony to steal any number of cattle, horses, or exotic fowl, regardless of their value a single goat, sheep, swine or any other type of livestock. Rep. Lois Kolkhorst is carrying the bill in the House. Judging from the witness list, this is a special-interest backed bill coming from the livestock industry.

CORRECTION (see below): My apologies for misreading the bill to increase penalties for goats, sheep and swine to a state jail felony when that was already the case. This penalty hike is only for cattle, horses, or exotic fowl and livestock, stealing one of which, if the bill passes, would be a third degree felony no matter what its value.

On the Senate floor, Seliger defended the bill as deterrence against cattle rustlers but it's actually written much broader than that. But these penalties are way too high for the offense. Does it make sense to give somebody a life-long "felony" tag for stealing a goat? Searching Craigslist I found a "Nigerian Dwarf Buck Goat" for sale in Caldwell, TX for $35. Should it really be a state jail felony if someone steals a $35 animal?

In addition to boosting penalties for petty livestock theft, Seliger's bill makes it an automatic third degree felony (2-10 years) to steal any number of cattle, horses, or exotic fowl, regardless of their value. But these animals are plenty valuable and the traditional framework for theft - the higher value the item, the heavier penalty - is perfectly reasonable for these purposes. There's no good reason at all to make a special exception for goats. Or cattle, or sheep. Or any other animal for that matter.

Beyond the policy madness of a felony rap for stealing a $35 goat, This bill raises a more general complaint I have about such legislation: The political process is not honest about what it would cost. As with all bills expanding incarceration at the Texas Legislature, the official "fiscal note" for SB 1163 claims the legislation is a freebie to taxpayers, but obviously that is false.

Clearly SB 1163 will categorize more petty thefts as felonies which means more people will enter state prisons a few people will receive longer sentences for the offense, but the Legislative Budget Board says there would be no fiscal impact from this bill. That's just silly: Boosting a new category of offenses to third-degree felony status means the state now must pay more incarceration costs for anyone convicted (at around $18K+ per year in Texas). And former Class A misdemeanors that will now be state jail felonies would cost the state incarceration dollars instead of the counties.

According to the bill's criminal justice impact statement, "During fiscal year 2008, five offenders were admitted to prison and 14 offenders were placed on felony probation for theft of livestock." But a state jail felony would mean only 2 years or less for those five imprisoned individuals, while a third degree felony involves a 2-10 year sentence. And some unknown number of people formerly charged with misdemeanors for stealing small animals will now be going to Texas state jails. How can that not cost taxpayers more money?

Seliger and Kolkhorst are actually among my favorite legislators at the capitol so this isn't intended to criticize them. (The same fiscal critique can be made of nearly every "enhancement" bill.) Instead my aim is to focus attention on an ongoing institutional folly of the first magnitude: The idea that every problem can be solved through more incarceration and it costs no money to do so.

As long as I've been around the Texas Legislature, they've allowed (or arguably, encouraged) LBB to tell them official lies ("no significant fiscal implication") in their fiscal notes about how much it costs to incarcerate people. And since nobody wants a fiscal note on their own "enhancement" bill, legislators all nod and smile and go along with it.

Texas already has 2,324 separate felonies on the books, including eleven involving oysters. I wonder how many felonies this will make involving goats?

UPDATE/CORRECTION: Well, everybody sometimes makes embarrassing mistakes and I suppose yesterday was my day - probably one of many but two readers caught this one in the comment section. I misread this bill not once, but twice, mistakenly thinking it increased the penalty for goat theft when (somewhat astonishingly) that is already a state jail felony. Only theft of cattle, horses, and exotic livestock would be affected by the bill. Consider this a humble mea culpa. It was a careless, unintentional error.

Even so, it's utterly ridiculous that theft of a $35 goat would get you a felony record (just like it's absurd that it's a state jail felony to graffiti a school). As noted in the bill's criminal justice impact statement, only five people per year are sent to prison for livestock theft, but according to the cattle raisers association, last year "there were 970 cases of cattle thefts in Texas and Oklahoma, three times the number from the previous year." So it's not like they're catching a large enough percentage of cattle rustlers for the increased penalties to make a difference.

It costs $18,000 per year to incarcerate somebody in Texas prisons. So what if Texas reduced the penalty for livestock theft to the same value-based assessment we use for everything else and spent the money saved to support a single investigator at the Texas Rangers focused on livestock theft rings? I'll guarantee that would do more to actually solve the problem and in the long run it'd be cheaper, smarter and more effective.

Newspapers endorse compensation for false convictions

Two major daily newspapers today urged the Texas Senate to approve legislation improving compensation for exonerated defendants.

• Austin Statesman: Compensation for unjust convictions in Texas
• Dallas News: Exonerees deserve better compensation

The Statesman argued that the bill:

could actually save the state money by preventing lawsuits and avoiding large settlements and legal fees. Those who are awarded benefits would forfeit their rights to sue the state. And the legislation would not reward people who were exonerated but went on to commit other crimes. They would not qualify for benefits.

The best reason to pass the legislation is because it is the right thing to do. No one can give back the time or erase the miseries endured in prison. And Texas leads the nation in the number of people, 38, who have been exonerated by DNA testing. Perhaps attaching a cost to wrongful convictions will help improve the legal system.

The Dallas News editorial concluded:

Without this measure, the state will continue committing a double injustice to these people – once for their wrongful imprisonment and again for the failure to help them rebuild their lives once they're set free. Two wrongs make the Timothy Cole Act the right thing to do.

Meanwhile, quite a bit of other postive innocence-related legislation is still alive and moving, including the Senate version of a bill to require police departments to implement policies governing eyewitness identification procedures that will be heard tomorrow in the House Criminal Jurisprudence Committee.

Several other Senate bills on innocence-related topics have come over to the House, including legislation related to recording police interrogations, requiring corroboration for jailhouse informants, and expanding post-conviction writ access for defendants in cases where scientific evidence has been discredited. Most of this legislation doesn't face significant opposition and, as is often the case at the end of Texas legislative sessions, time is arguably its biggest enemy.

MORE: See a press release from Rep. Rafael Anchia about the compensation bill.

Repaying Debts: Child support, victim restitution should be top priorities for offender payments

After I wrote recently about a slew of bills increasing fees for probationers, Carl Reynolds from Texas' Office of Court Administration pointed out a recent report from his shop in conjunction with Dr. Tony Fabelo of the Council of State Governments' Justice Center titled "Repaying Debts" that addresses these and other closely related subjects. Some of their recommendations fell right in line with the issues raised in my post:

• Provide lawmakers who are considering legislation that would impose or increase fines, fees, or surcharges with an impact statement projecting the legislation's effect on the ability of a person released from prison or jail to meet his or her child support and restitution obligations.

• Curb the extent to which operations of criminal justice agencies rely on the collection of fines, fees, and surcharges from people released from prisons and jails.

In addition, the report suggests some creative solutions for this longstanding, seemingly intractable problem:

• Design sanctions, such as increased supervision and mandatory service at a restitution center, to compel people under community supervision to meet their financial obligations.

• Develop a range of incentives, such as certificates of good conduct and waivers of fines, fees, and surcharges to help people who are willing to meet their financial obligations.

See also OCA's analysis of the financial burden facing parolees (pdf) from Texas prisons when they get out and how that can contribute to recidivism.

I've not read the full report in detail, but it appears to emphasize, appropriately, repayment of child support and restitution to victims over court fees and supervision costs, a re-prioritization that I would wholly endorse.

I'm glad to see there are folks out there thinking about these issues more systematically than the bipartisan bill authors promoting new nickel-and-dime fee hikes each and every legislative session.

Impeaching Sharon Keller: First Lege discussions on removing Court of Criminal Appeals' Presiding Judge

For the first time in 34 years last night, the Legislature heard an impeachment resolution regarding a sitting judge - Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals. I couldn't attend but am listening to the hearing online this morning.

Rep. Lon Burnam who brought the resolution said the Judiciary and Civil Jurisprudence Committee is being asked to recommend that the Speaker of the House form a committee to scrutinize Keller's conduct and make a recommendation whether to impeach, not to act themselves as finders of fact.

Here's initial coverage from the Dallas News , the Austin Statesman, the Fort Worth Star-Telegram, and the Daily Texan. For those with a few extra hours on their hands, here's a link to the hearing video archive; Burnam's HB 480 begins at the 3:03 mark.

Impeachable offenses are not defined in the Texas Constitution, said Burnam, but a 1924 ruling in the impeachment case against James "Pa" Ferguson established that officials can be impeached in Texas. In fact, that case held it was the "responsibility" of the Legislature to pursue impeachment if the officeholder breached the public trust.

Burnam's resolution focuses only on her actions in the Michael Richard case, but he said there were at least three other grounds for impeachment he believes are applicable. If the House were to approve impeachment articles, he said, Judge Keller would be temporarily removed from the bench until a trial in the Senate could permanently remove her.

A former appellate judge from the First Court of Appeals in Houston, Michol O'Connor (a female), was the first witness, declaring that three things justified her impeachment - her actions in the Michael Richard cases, her stated partiality toward the prosecution, and her incompetence as a judge. In the Richard case, she said, the court wasn't closed "in any real sense" at 5 p.m., she said, since the assigned duty judge was waiting there to hear the appeal. She said she'd never heard of a capital case when a request for a 20-minute delay was denied by an appellate court.

Judge O'Connor particularly emphasized Judge Keller's partiality toward the prosecution, declaring that alone should be enough to justify her removal. This to me is an even stronger argument for her ouster than the Michael Richard debacle. Imagine a family court judge who declared themselves "pro-husband"!

Judge O'Connor went through all the various reasons judges had been removed from office in Texas, arguing that Judge Keller's behavior was worse than any of them. She said she doesn't know anyone who believes Keller should stay in office.

The hearing lasted nearly three hours with most of the testimony favoring impeachment.

See also an analysis of the facts in the case from two dozen legal ethicists recently submitted to the Commission on Judicial Conduct.

MORE: From Mark Bennett who attended the hearing; he testified in favor of the resolution at the 5:41 mark in the archived video on behalf of the Harris County Criminal Lawyers Association.

AND MORE: At my request, Rep. Burnam's office forwarded me a copy of the written testimony from Charles Herring, an attorney, scholar and author on legal ethics and malpractice who testified at the hearing.

Also, go here to download the Texas Supreme Court's ruling in Ferguson v. Maddox (1924), a case that was much discussed at the hearing. This appears to be the key precedential case governing impeachment proceedings in Texas.

Finally, Burnam's office forwarded me another document that I'm having trouble uploading - a resolution from the Texas House in 1975 appointing a committee of the type Burnam is seeking to prepare impeachment articles against Judge O.P. Carillo from Duval County. The House later charged Carillo with 12 counts of misconduct, including stealing groceries. (Only two counts were sustained by the Senate.) That's the last time the state of Texas impeached a sitting judge, and according to Burnam, Rep. Senfronia Thompson is the only current legislator who actually sat on the impeachment committee.

MORE: Steve McGonigle at the Dallas News has a good account of the testimony from Keller's only defender at the hearing, former CCA Judge Frank Maloney. Here's an account of the hearing from Mary Alice Robbins at Texas Lawyer.

Exposing judicial misconduct on right-to-counsel

Following up on sentiments expressed in this thought provoking post, Harris County Criminal Lawyers Association chief Mark Bennett issued this message to Harris County criminal court judges who aren't following the law regarding bail and the right to counsel:

Dear Harris County judges:

The following is a non-exhaustive list of conduct, engaged in by you or your staffs, that is likely to get you grieved:

• Telling defendants, “If you don’t hire a lawyer, you’re going to come back every day and stay until 11:30 until you hire a lawyer.”
• Telling defendants, “Go hire a lawyer from the hallway.”
• Telling defendants, “You made bond. You can’t have an appointed lawyer.”
• Removing appointed counsel from cases when defendants make bond before substitute counsel is hired and without a hearing.
• Telling defendants, “Hire a lawyer or go to jail.”
• Jailing people for not hiring lawyers.

The days of the Harris County Criminal Lawyers trusting the Commission for Judicial Conduct to do its job are past. If a grievance is filed, it will be news.

Most of you would never do any of these things. That’s great. No need to protest. I hope your staffs realize that you would never do these things.

I know that some of this conduct has been going on for longer than I’ve been a lawyer. If you have a quibble or doubt about whether any of it is unethical, I’d be happy to have a friendly discussion with you about it; maybe you can convince me that it is not only traditional, but also legitimate. I raise these issues because I don’t want HCCLA to have to grieve any more judges. I’d rather the unethical behavior just stopped.

Love,
Mark.

There you have it. Harris County judges can't say they haven't been warned!

Improving criminal justice data

A couple of GOP senators want Texas criminal justice data improved:

The House Public Safety Committee today will hear SB 777 by Sen. Steve Ogden that requires DPS and local agencies to gather statistical information about outcomes in Texas DWI cases - how many are dismissed, how many plead to lesser charges, etc.. See the text of the bill (pdf) for the information they'd gather in an annual, statewide report.

Meanwhile, speaking of crime data, a good bill by Sen. Florence Shapiro, SB 1061 - aimed at counties which aren't meeting their obligations for reporting crime and adjudication data to the Department of Public Safety - passed the Senate last week and is waiting to be assigned to a House committee. This is a longstanding problem I've written about several times. Counties that don't report 90% of the required data will be required to create a committee to come up with a "data reporting improvement plan." Shapiro said on the Senate floor that if this doesn't do the trick, in two years the Lege will need to come back to add penalties and put more teeth in the law.

I like both these bills and am glad to see them moving through the process. It's good to see legislators seeking more information to help them make decisions instead of just winging it and flying blind.

Keller impeachent proceedings begin today

I didn't think we'd see this during the 81st Texas Legislature, but the impeachment resolution for Presiding Judge Sharon Keller of the Court of Criminal Appeals will be heard this afternoon in the Texas House Judiciary and Civil Jurisprudence Commitee. The Dallas News Trail Blazers blog has this preview:

- Back in committee, Sharon Keller, the chief justice of the Texas Court of Criminal Appeals, could soon face impeachment proceedings - there's a resolution under review by the House Judiciary and Civil Jurisprudence Committee to consider impeachment for "gross negligence of duty ... with willful disregard for human life." Keller's court hears appeals in capitol murder cases, and she refused to keep her office open past 5 p.m. to accept an appeals filing hours before an execution in 2007. The committee hearing begins upon final adjournment of the House.

- At the same hearing is a bill to dissolve the Court of Criminal Appeals and combine its role with the Texas Supreme Court. There's also a bill requiring state documentation of frivolous lawsuits.

Mark Bennett, blogger extraordinaire and president of the Harris County Criminal Lawyers Association will be coming in to town for the event and points to this request for public input by resolution sponsor Lon Burnam:

“It is important that the committee be made aware of the public’s desire for impeachment,” [Texas Representative Lon] Burnam said. “I encourage anyone who wishes to see justice done in this matter to come to room E2.010 in the capitol on Monday afternoon and register ‘for’ House Resolution 480.”

See Burnam's press release about the resolution and hearing, which begins upon adjournment of the Texas House of Representatives this afternoon.

RELATED: "Ethicists say Keller should be removed from bench."

CPPP: Foster kids face more school discipline

It's not particularly shocking that abused and neglected kids in foster care are more likely to be disciplined in school (and thus more likely to wind up in the juvenile justice system), but according to a new policy paper (pdf) by the Center for Public Policy Priorities, "31 percent of all [Texas] students in foster care received at least one discipline action versus 17 percent of the general student population."

Foster kids are nearly twice as likely to be disciplined as average students, says the group, and they're significantly more likely to receive an out-of-school suspension for misbehavior compared to their peers. Among youth who received discipline, foster kids were half again as likely to engage in "serious/persistent misconduct."

CPPP suggests that, as the kids' managing conservator, the Department of Family and Protective Services may not be doing enough for to assess foster kids' fairly predictable support needs. "Getting more students in foster care who have emotional problems eligible for special education services will not only get them the support they need to do better in school," the paper suggests, "it should improve discipline outcomes as well."

See more in the policy paper (pdf) from CPPP (or as I call them, the Center for too many Ps) on the Texas school disciplinary system and foster care children, including a good overview of the disciplinary process facing Texas youth along the way toward the juvenile justice system.

'Imprisoned by Stereotypes'

From Doc Berman:

Inside Out, the online magazine of the Prison Fellowship, has this interesting cover story with the same title as the title of this post. Here is how it gets started:

When the average person conjures an image of a prisoner, what is pictured? Does the mind’s eye see a lone shadow with defiance and anger on his face and evil and ill-intent in his heart, prowling for trouble and poised to wreak violence? And who or what provides this image? Movies? The news media? Fear?

When three people from Texas look into the faces of prisoners, they see an opportunity for repentance, a prospect for a second chance, a vessel of potential. Their perception of prisoners is not based on sensationalized images from any screen, or on what they think it means to be a prisoner. Among them, they have more than three decades of experience in prison ministry. And while they, too, acknowledge that there are prisoners who live up to society’s stereotypes, there are also those who reduce such notions into myth.

Here's a brief description of the three Texas prison ministry volunteers profiled:

With 15 years of prison ministry experience, Lloyd Knapp points out that people inside prison and people outside of prison have at least one major similarity: the capability of making poor choices. The difference between prisoners and nonprisoners most often lies within circumstance. “There are those of us who commit crimes, and there are those of us who don’t get caught. Obviously most of us haven’t committed murder or done drugs, but we’ve done things that we regret or wish we hadn’t. Prisoners make mistakes, too, but they habitually make those mistakes. They’re not evil at heart; they’ve just been down that road so long, it’s difficult for them to change.”

Judy Indermuehle, a prison volunteer for more than nine years, agrees with Lloyd. In fact, she says that looking inside a prison is like looking into a large cultural mirror. “The prison population is a large mix of society,” says Judy, “same as we have outside. Prisoners are bad and evil, just like we are. We are capable of what they’ve done, and unless we are able to view ourselves that way, it would seem we are full of arrogance.”

Adelaide Biggs, a volunteer with more than nine years of experience inside prisons, echoes Judy’s tenacious sentiment. “We need to remember that we’re all sinners,” she says. “Jesus changes us. Most of the people I see have lived a horrible life and made terrible choices, but they know they can be different people through Christ. And isn’t that the Christian faith?”

All three volunteers agree: Prisoners are neither more nor less evil than those outside of prison. The main difference between the majority of the incarcerated and the majority of the free is not something inherent, so much as it is something acquired.

Lubbock reporter honored for Cole case coverage

Kudos to Lubbock Avalanche Journal reporter Elliott Blackburn on winning a statewide journalism prize for his three-part series titled "Hope Deferred" about DNA posthumously exonerating Timothy Cole, a Texas Tech student falsely convicted of rape who died in prison in 1999. (The reporter is not related to Jeff Blackburn, the Innocence Project of Texas attorney who represented Cole's family in his recent, posthumous exoneration.) Avalanche-Journal editor Terry Greenberg said " 'Hope Deferred' is the best piece of journalism we've done during my three years at The A-J, and Elliott deserves this recognition."

See Blackburn's full, award winning series here, here, and here.

Probation fees a sleeper issue, barrier to success of reforms

At a moment in history where more than 10% of adult Texans have outstanding arrest warrants, the ever growing array of increasingly unmanageable fines for low level offenses and fees for probationers is a mundane "sleeper" issue, one that may have profound implications in particular for how well the probation-centered de-incarceration reforms approved by the Texas Legislature in 2007 work in the long term.

This subject of onerous fees too seldom rises to a high enough priority level, I'm afraid, even on this blog. But with every new legislative session, probationers suffer from a death from a thousand cuts, and every new fee and fine makes it less likely they'll be able to successfully complete court-ordered community supervision.

The most egregious example is the Orwellian-named Driver Responsibility Program, especially the high fines for DWI offenders - it suffers about a 70% noncompliance rate! Similarly, rates of restitution payments are strikingly low in part because the amount of restitution expected from low-income defendants is frequently unrealistic in the first place.

Every two years in Texas, more nickel and dime fees are added onto probationers' plates until we've reached the point where, for many, it's unrealistic to expect them to pay. After all, most of these folks, carrying a criminal record, don't qualify for high paying jobs and a felony record precludes them from many occupations. It doesn't matter, though; the Lege just keeps tacking on fees.

I mention this after noticing a bunch of bills in this vein moving through the process, starting with one by Rep. Paula Piereson attaching a new $50 fee for probationers who are required to do community service. Similarly, version of Sen. Dan Patrick's DNA database expansion bill that passed out of the Senate includes a new $34 fee to cover the costs of processing DNA tests.

According to the criminal justice impact statement, HB 666 by Gutierrez "would increase the court cost on the conviction of certain intoxication and drug offenses from $50 to $60 and make it applicable to any offense classified as a Class B misdemeanor or higher that falls within specified offenses types, including assault, arson, robbery, burglary, theft, fraud, weapons, and intoxication."

A bill that passed out of the House Criminal Jurisprudence Committee and is waiting in Calendars, HB 2389 by Hernandez lards on more fees for alcohol offenses, creating "a $50 breath alcohol testing program fee as a court cost for persons if convicted of one of seven Penal Code offenses: Driving While Intoxicated (DWI), Driving While Intoxicated with a Child Passenger, Flying While Intoxicated, Boating While Intoxicated, Assembling or Operating an Amusement Ride While Intoxicated, Intoxication Assault, or Intoxication Manslaughter. It would allow counties to retain $5 of each fee collected for administrative costs," according to the fiscal note.

Another bill that's out of committee makes mandatory use of "ignition interlocks" for all DWI probationers and makes them pay for the costs. A bill requiring electronic monitoring for registered sex offenders requires them all to pay for the equipment. Another bill that passed out of committee in the Senate would authorize arrest for someone who is able to pay for monitoring costs, in the view of the court, but fails to do so.

Maybe it sounds petty to complain about a $50 additional fee, but my real complaint is the overarching trend. We see more of these fees literally every session, and probationers already owe fines, court costs, probation department fees, restitution and can be required to pay for their own drug or alcohol treatment and testing. If they don't pay the mounting fees, fines and costs, they face revocation or at least an array of intermediate sanctions, none of which are themselves free to the taxpayers.

These costs partially explain why so many defendants actually choose jail over probation for many low-level offenses, even though it costs the taxpayers much more. When that happens, or if they're revoked to prison, the state all of a sudden must foot ALL their costs, so surely it makes sense to invest the much smaller amounts on the front end if it means not overburdening probationers with fees to the point they cannot succeed?

It won't happen in the 81st Legislature, but somewhere down the line - perhaps in an interim charge by one of the relevant committees - this issue needs to be studied in more detail and the issue of probation fees rationalized. If we as a society believe that police protection, criminal adjudication and the incarceration of people for crimes is a primary role of government, then we need to pay for those functions with tax dollars and stop larding on ever-higher pile of debts onto people who largely can't afford them.

You can't squeeze blood from a stone, the saying goes, and trying doesn't make us any safer. In fact, it can contribute to probationers' sense that the system is so slanted against their success they should just stop trying, contributing to despair and, ultimately, to recidivism.

House to consider exoneree compensation bill today

I'm headed to the capitol this morning on behalf of the Innocence Project of Texas to hear the Texas House consider legislation to boost state compensation for innocent inmates who've been exonerated by DNA evidence, and also expanding compensation claims to include the families of innocent people who die in prison, precluding civil ligiation if they take the settlement. Dallas News editorial writer Tod Robberson has a good item in support of the legislation, writing that:

This bill, sponsored by Rep. Rafael Anchia of Dallas, is named for Timothy Cole, whom we've written about on our editorial page. Cole died in prison in 1999 while serving a 25 year sentence after being wrongfully convicted for the rape of a Texas Tech student in 1985. Another man confessed to the crime and subsequent DNA tests confirmed that Cole could not possibly have been the rapist. It was the very definition of a travesty of justice.

Anchia's bill would increase the lump sum compensation paid to victims of wrongful imprisonment from $50,000 to $80,000 for each year of imprisonment. In addition to the lump sum payment, the bill also requires the State of Texas to make monthly payments to the exonerated individual for life plus pay health insurance and provide up to 120 hours of free tuition at a career center, community college or state university.

This is one bill that deserves quick approval so we can at least partially compensate individuals who, largely because of prosecutorial overzealousness, served prison time for offenses they didn't commit.

Timothy Cole's youngest brother and his mother, Cory and Ruby Cole-Session, will also be in the gallery today to hear Rep. Anchia's legislation considered. This has been quite an emotional journey for them.

UPDATE: The House approved this legislation overwhelmingly on a voice vote on the Major State Calendar, a signal from the leadership that they considered this a high-priority bill. I was pleased to discover 8 of Texas DNA exonerees - in addition to the Cole family - had come into town to watch the vote - I hadn't expected that! The House members stood and applauded them when Rep. Anchia recognzied them after the bill had passed. A number of the reps came out to greet them afterwards in a sea of smiles, hugs and goodwill.

I've gotta tell you, I couldn't be more proud of the exonerees for having the moral strength and personal fortitude to come to Austin over and over to support improving Texas' laws, not just on this but on all the good public policy bills, too. If I'd spent two decades or more in prison for a crime I didn't commit, I don't know that I'd be able to muster enough faith in the system to even bother participating in the legislative process. The boost in compensation, access to healthcare and educational opportunities in the bill will be a huge boon for these fellows, and I couldn't be more happy for them.

Thank you to Rep. Anchia, his joint and coauthors, and many other supportive House members for taking a substantive and important step toward securing a modicum of justice for Texas' DNA exonerees.

More graffiti shennanigans in the House

Having added graffiti to the friggin' organized crime statute yesterday, today the Texas House will hear yet another bill boosting penalties for graffiti, HB 1633 by Walle et. al., making graffiti of any amount a felony on the third offense and boosting restitution and community service requirements, combining the contents of several different pieces of legislation. When those bills were heard in committee, I wrote:

At this point, graffiti crimes have been enhanced so many times that further penalty increases can only be viewed, IMO, as acts of showmanship rather than statesmanship. Lawmakers want to be seen as doing something about graffiti in reaction to angry constituents, but the only thing anyone ever does is jack up penalties, which has basically done nothing to abate the problem.

The fact is, penalty hikes are among the least effective ways to reduce graffiti because a) penalties have already been increased many times and b) so few people are arrested for the offense, particularly compared to the tens of thousands of separate graffiti offenses committed statewide every year (much of which goes unreported). Austin alone had more than 15,000 reported graffiti incidents in 2007. By contrast, according to the criminal justice impact statement for the bill:

In fiscal year 2008, approximately 174 persons [statewide] were placed on community supervision (42 felony and 132 misdemeanor), approximately 29 persons were admitted to state jail, and one person was admitted to prison for the offense of graffiti. Based on arrest history data, direct court sentencing trends, and revocation rates, approximately 14 percent of the individuals would be sentenced to a term of incarceration in a state jail and approximately 21 percent of the individuals would be placed under felony community supervision annually as a result of the provision providing penalty enhancement for previous graffiti convictions.

So these "enhancements" will affect only a tiny number of people compared to the volume of graff writers out there, boosting the number sent to state jail from 29 to 47 in the first year. That's why I say such legislation is "just for show." It won't impact the amount of graffiti in the world substantially and instead is more about politicians wanting to look "tuff."

It will, though, cost the taxpayers. As usual for penalty enhancements, the fiscal note claims the bill will have "no significant fiscal implication," but that's just an official bureaucratic lie. Obviously, when you incarcerate more people it is not free. In reality, even at only 18 people per year and an average cost per day of $47.50 (according to LBB), HB 1633 will cost more than $300K in the first year and double that in the second, not to mention every year afterward.

That same analysis, btw, is true of every penalty hike for which the Legislative Budget Board says there's no significant fiscal imact - you don't get to incarcerate people for free and the no-cost estimates are just politicized math to allow the bills to pass without being required to allocate money to pay for them in the budget. How many legislators can think of a project for which they'd like to spend $900K over the next biennium? If the fiscal note were honest they could have that debate, but instead the Lege just pretends locking people up is free.

By contrast, in Corpus Christi it cost $77,000 to purchase a "graffiti buster" truck to actually remove graffiti, which is a much greater service to crime victims. For the cost of this bill in the next biennium, the Lege could issue grants to purchase 11-12 such trucks for use by local probation departments to clean up graffiti using probationers' community service hours. That approach would actually reduce graffiti significantly and get a lot closer to placating victims of graffiti crime. (But then they would have to admit the solution costs taxpayers money.)

Nothing will "solve" graffiti, which has been with us since ancient times; it can only be managed, IMO most successfully through a three-pronged approach of enforcement, rapid cleanup (hence my advocacy for the graffiti-buster trucks) and provision of public spaces for invited art.

This legislation is more an act of public relations than legitimate public policy, but if that's the goal it'd be cheaper for the taxpayers if the authors just issued a press release.

UPDATE: The bill was modified slightly with a house floor amendment suggested by the ACLU of Texas that applies the enhancement only when the defendant is older than 17 years of age.

See related Grits posts:

• Kids do less art in school, more in street: Lege reacts with hammer
• Boosting penalties the wrong approach on graffiti
• Graffiti solutions: A cost-benefit analysis
• Toward a restorative graffiti policy
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Out of our minds: Isn't felony graffiti overkill for sixth graders?

Graffiti as organized crime?

On the House floor today, Rep. Joe Moody had a perfectly reasonable bill that added people conspiring in prison and jail escapes under the organized crime statute. But the freshman Democrat accepted a "friendly" amendment from Rep. Dwayne Bohac to define graffiti offenses, of all things, as "organized crime" if committed by three or more people in combination.

Bohac said he wants to target criminal street gangs, but as written the amendment would allow prosecution of any three high-school kids who spray paint an underpass as "organized crime," enhancing Class A misdemeanor graffiti offenses to a third degree felony.

Overkill, much?

If your teenager was caught with two friends writing their names on a wall, would you think it's justified to prosecute them under the same laws created to go after the mafia?

What are these people thinking? Are they thinking at all?

Roundup: Judges, Journalists and Jails

While I'm focused elsewhere today, let me point readers to several items that might deserve individual blog posts if I had more time:

No good answers for picking judges
I'm virtually certain nothing will change this session, but there's been a lot of debate this year over whether to shift from elected to appointed judges. Personally I don't have a big problem with electing judges because the appointed ones can be just as biased and political.

Protecting journalists before they're extinct
By contrast, it looks like the Lege may finally pass a journalists' shield law, possibly just before the last ones leave the building and turn out the lights at the state's daily newspapers.

Collective bargaining for private jails?
Texas Prison Bidness lets us know about a bill by Rep. Mando Martinez that would probably do more to improve conditions in private jails than any regulatory reform: It would void private jail contracts unless the county enters into the contract in a collective bargaining agreement between the county and sheriff's department employees. Texas police unions have been pushing for collective bargaining for years, but before now I've seldom heard anyone supporting the concept for jail or prison guards.

Scholarships backed for TDCJ-bound students
Rep. Lois Kolkhorst is pushing legislation to create a "pilot program to be based at Sam Houston State University that create[s] a loan repayment program for students who agree to a career path at Texas Department of Criminal Justice" Relatedly, the SHSU student newspaper has a story about historic ties between Sam Houston State and TDCJ.

Jail guard violated civil rights
A Bexar County jail guard pled guilty in federal court to violating an inmate's civil rights after punching him and throwing him to the ground in a detention cell.

Capital murder for killing a snitch
The Beaumont Enterprise has a story about a capital murder case in which a police informant was murdered in a federal prison.

Obama vs. right to counsel
Anyone in the criminal defense bar who considers President Barack Obama some sort of savior will find sobering the Administration's call to overturn Michigan v. Jackson, which forbids police from questioning a defendant after they've requested counsel.

Protecting judges from threats or scrutiny?
I think it's a terrible idea to conceal personal information about judges and other officials from the public - particularly information like birthdates and addresses which help identify individuals in corruption inquiries and other public interest investigations.

Call for more Senate transparency
A Dallas News editorial this week made the excellent point that the Texas Senate needs to catch up with the House regarding how much information about votes and floor amendments it puts on line and how promptly the information is posted. Particularly in an age when the MSM provides much less coverage than in the past, it's more important than ever that the public have direct, instant access to what's going on in the legislative process.

Consensus developing around juvie diversion programs

Here's a report from yesterday's joint legislative meeting on juvenile justice reform from Grits intern Tara Haelle.Thanks, Tara, for attending the hearing and providing this writeup. As always, none of the opinions expressed here in any way represent those of UT, the LBJ School, her teacher, nor anybody but the writer and editor.

At last the House and Senate are talking to each other at the Texas Legislature to iron out differences in their approaches on juvenile justice. Several hours of testimony yesterday about proposed pilot programs and the future of TYC revealed a surprisingly high amount of support for the county pilots on all sides—albeit with some caveats. There were some tense moments in the discussion, often even when conflicting legislators basically agreed. But by the end of the evening, it might not be a stretch to say the Lege is finally moving toward a consensus for supporting more community-based programs to divert kids from TYC.

The most significant development was probably a commitment from Sen. John Whitmire to try to replace the Title IV E foster care funds that have dried up from the federal government. Additional funds to fill the gap were in the House budget but not the Senate’s, which was Juvenile Probation Executive Director Vicki Spriggs’ primary concern. “I have never been against the pilots,” Spriggs said four times. “I have been for Title IV E dollars, and those are very important to me for the bigger picture.”

Counties were concerned that the legislature was going to fund the pilot programs instead of replacing Title IV-E funding. Several people who testified thanked Whitmire throughout the hearing for making the commitment to try to find replacement funds for the lost Title IV E funds

Travis County District Judge Jeanne Meurer, who has been working closely with Sen. Whitmire to develop his diversion initiative, declared the proposed “pilots” are not new, experimental, or untested programs as the phrase might imply. She said they would provide “tried-and-true programming” to divert kids from TYC, though she also strongly supports adequately funding the agency. Meurer said the counties need funding to keep diverting kids, but she does not support a competitive grant program because it doesn’t make sense to compare different counties with different populations and different needs.

Meurer said that the scandal at TYC forced her to fundamentally rethink her approach about who Travis County should be sending to TYC and who could be helped in community based settings. Not long ago, she said, Travis County sent more than 100 kids per year to TYC; in 2008 they sent 16.

Dallas juvie probation chief Michael Griffiths suggested pilot counties would accept a "cap" on the number of commitments to TYC - perhaps cutting the total they send each year by half - if they received new funding for diversion programming. He said the program could be structured so that counties must return money to the state if they go over the cap. (The decision whether to send youth to TYC will still be made by judges, he pointed out, not the probation departments - see a memo describing his suggestions.)

William Carter from Fort Bend Counties gave legislators a copy of a plan (downloadable here) from counties in the Southeast region of the state and said he believes they can divert many youth currently going to TYC if the pilots are adequately funded.

Rep. Ruth McClendon, who authored the House Sunset bill, said even with the most ideal pilot program in “Timbuktu county,” focused on mental illness and substance abuse programs and keeping kids out of TYC, it’s still necessary to make sure TYC gets the funding it needs:

“There are going to be SOME kids who are not going to fare well in my program, and no matter innovative my program is, those kids are just not going to be able to complete my program successfully and those judges are not going to sit back and let those kids terrorize the community because the state says it’s better for them to stay at home. They’re going to be burning down three and four house a night, biting off their neighbor’s ears and feet and toes, and the judge is going to say this kid cannot stay here. Timbuktu is going to be safer if I send this kid somewhere, and TYC is the place that kid is going to go. You can’t TYC down to the minimum bones.”

Whitmire bristled at the suggestion that he wants to underfund TYC, insisting that he simply doesn’t believe the reduced TYC population merits a higher budget than the Senate proposed. “There is no way that an organization that used to have a population of 5000 needs the same money” they used to get when they’re now “about the size of a junior high,” he said. “I’ll give them more damn money if they want to justify it,” he added.

Sen. Whitmire lauded TYC chief Cherie Townsend, “who’s got great vision” for continuing to implement SB 103 reforms, but emphasized that it “should be the legislature doing vision and planning with [Cherie’s] input.” Townsend made it clear that the pilot programs are not inconsistent with trying to regionalize TYC but expressed the hope that there is a clear plan for evaluating the pilots’ success. “We need evidence-based models,” she told them, but assured the committee, “whatever the will of the legislature is, we’ll participate in that.”

Michele Deitch, a UT LBJ School professor representing the Blue Ribbon Task Force on TYC, testified that the task force “strongly supports the proposed juvenile probation pilot projects” and that the pilot project proposals address numerous recommendations in the Blue Ribbon Report. The Report called on policymakers to “emphasize keeping youth in the community” and to redirect savings from decreased incarceration to prevention and community-based programs. The Task Force had also recommended limiting TYC placements to high-risk and chronic felons, and moving TYC towards a more regionalized system of care, consistent with the proposals discussed at the hearing.

Advocacy groups also support the programs as long as they “promote evidence-based nonresidential programs,” testified Isela Gutierrez from the Texas Criminal Justice Coalition. Several also called for a system of independent data collection that shows what’s really working in the programs.

MORE: See coverage of the hearing from the Austin Statesman's Mike Ward.

Crawford protesters earn First Amendment victory at TXCCA

Here's an unexpectedly positive ruling from Texas' high criminal court that shows how divided the court has become. Via the Houston Press' Hairballs blog:

The Texas Court of Criminal Appeals -- the Supreme Court for criminal matters -- has upheld a lower court's decision to toss out the convictions of two protesters arrested outside of President Bush's Crawford ranch (Does he still go to that thing anymore?)

By a 5-4 vote, the TCCA found that the arrests were not warranted.

"Today's court ruling is a monumental victory for the First Amendment," ACLU of Texas Legal Director Lisa Graybill said. "Time and again we have said that Dr. Hardy and Mr. Myers were arrested for no other reason than expressing their views."

Here's what the majority opinion said:

One might also "obstruct" a highway by aiming a strobe light at oncoming traffic, thereby rendering passage unreasonably hazardous, but cavorting on the sidewalk while dressed as a gorilla would not "obstruct" a highway. A large object placed on the side of the road, but in the line of sight on a curve in the road, might also "obstruct," although a smaller object in the same location would not. In sum, an order to move to prevent an obstruction must be reasonable in the prevailing circumstances.

[Presiding Judge Sharon] Keller took time out from fighting for her legal career to write the dissent:

Photographs from the August protest show tents, cars, and port-a-potties encroaching on the pavement, and people sitting, standing, and walking on the pavement. Implicit in the testimony of one of the officers is that no arrests were made because there were so many protesters and so few officers. The situation in August had gotten out of hand, and law enforcement officers - quite reasonably - wanted to prevent that from happening again.

We're just glad the ACLU got its filings in on time.

If we were talking about any other court, this case probably wouldn't have been so close. After all, the court was being asked to decide when someone violated the "obstruction of a roadway" statute (Penal Code Sec. 42.03) "when no actual obstruction occurred."

Judge Keller's dissent, joined by Judges Meyers, Keasler, and Hervey, agreed they weren't blocking traffic, but bizarrely claimed that defendants, "by sitting in a tent beside the road, rendered passage unreasonably inconvenient or hazardous."

It's a strange fact that four members of the Court of Criminal Appeals think you can obstruct a roadway when you're not in it, but perhaps the bigger surprise is that five judges on the court disagreed with them.

Keller impeachment resolution to be heard on Monday

I've gotta admit, I didn't believe this idea would even get a hearing, but the articles of impeachment against Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals will be heard in committee on Monday, according to a press release by Rep. Lon Burnam (received via email):

Hearing on Keller Impeachment set for April 27th

AUSTIN - The Texas House Committee on Judiciary and Civil Jurisprudence announced today that it would hear public testimony regarding the impeachment of Chief Justice Sharon Keller of the Court of Criminal Appeals on April 27th.

The impeachment resolution was introduced by Rep. Lon Burnam (D - Fort Worth ).

"It is important that the committee be made aware of the public's desire for impeachment," Mr. Burnam said. "I encourage anyone who wishes to see justice done in this matter to come to room E2.010 in the capitol on Monday afternoon and register 'for' House Resolution 480."

The impeachment resolution stems from Judge Keller's alleged violation of the Court's practice of remaining open on scheduled execution nights. On September 25, 2007, the judge instructed court staff to refuse appeal filings from lawyers for death row inmate, Michael Richard.

Richard's appeal was based on announcements made by the United States Supreme Court the morning of they scheduled execution. Although Richard was executed that night, the Court of Criminal Appeals (over which Judge Keller presides) later granted two stays of execution based on the same arguments Richard's lawyers attempted to present.

If passed, HR 480 calls on the House of Representatives to form a committee to investigate Judge Keller for "gross neglect of duty and willing disregard for human life." If the House finds cause for impeachment, a trial would then be held in the State Senate.

The State Ethics Commission is also currently investigating Judge Keller; a hearing has been scheduled for August 16th to investigate the judge's actions in the Richard Case. In addition, the Ethics Commission is investigating Judge Keller's omission of 20 million dollars in Dallas area real estate holdings from mandatory disclosure forms filed with the Commission.

Strange debate on recording interrogations

The Senate this afternoon passed Sen. Ellis' SB 116 encouraging police to record custodial interrogations on a 28-2 vote. The debate over the bill, though, was bizarre, with opponents raising strange objections that simply ignored what the bill actually does. According to the Austin Statesman:

The approved measure provides that, when practical, a custodial interrogation should be recorded, in its entirety, using audio-visual equipment or audio equipment. It requires the Texas Department of Public Safety to adopt rules for providing funds or electronic recording equipment to law enforcement agencies.

Ellis called the change, headed to the House, “a very modest step in the right direction.”

Senators acted after Ellis fielded questions from Sen. Dan Patrick, R-Houston, who expressed concern that the failure of a police officer to record an interview might be exploited by defense attorneys.

“I don’t want this to be a big loophole that you could drive a truck through to get people off” from criminal charges, Patrick said. He added that he supports Ellis’s intent.

Sen. Joan Huffman, R-Houston, aired similar concerns.

Patrick and Huffman voted against the bill (though doing his best John Kerry impression, Sen. Patrick voted for the bill in committee before he was against it).

Both senators kept saying that confessions might be excluded or defense attorneys might "get people off" because an interrogation wasn't recorded, ignoring explicit language in the bill stating that "Nothing in this article affects the admissibility of a statement that is otherwise admissible as evidence in a criminal proceeding."

So even if an interrogation is not recorded, all the evidence gained from it still would get into court. Sen. Ellis kept reading that language to him over and over, but Sen. Patrick wouldn't take "yes" for an answer.

I don't know if Patrick and Huffman simply didn't read the bill (it's only a one-pager and not very complex) or were misled by critics in the law enforcement lobby, but the whole conversation was odd and off point. Congrats to Sen. Ellis, in any event, for getting his bill through.

The legislation now heads to the House where Rep. Jessica Farrar is carrying companion legislation.

MORE: From the Texas Observer's Floor Pass blog.

See prior, related Grits posts:

• Jurors from false confession case call for recorded confessions
  
• Recording interrogations in best interest of law enforcement, justice
  
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

"In my experience, people did sometimes stick things in my underwear"

At oral arguments in a case over whether a school in Arizona had the right to strip search a 13-year old girl to search for ibuprofen, US Supreme Court Justice Justice Stephen Breyer offered up this gem of a misstatement attempting to justify the school's actions: "In my experience, people did sometimes stick things in my underwear."

Unfortunately, the case itself is no laughing matter and Tony Mauro at the Legal Times said a majority of justices seem prepared to approve strip searching students in public schools, even though the state's attorney conceded that even "cavity searches" might be constitutional if SCOTUS rules for the school district.

Apparently there's little reason to fear yesterday's SCOTUS ruling in the Gant case will presage some renewed commitment to protecting our rights against unreasonable search and seizure. Just pitiful. We need more legislative champions willing to step forward to protect the Fourth Amendment via statute because it's increasingly clear federal courts aren't up to the task.

Crunch time: Bills dying right and left with little fanfare

If you're supporting a House bill this session that was assigned to the Texas House Criminal Jurisprudence Committee but has not yet received a hearing, chances are it's already dead. As sine die looms ever closer, this is the first week that committee will cease hearing House bills. Every bill on its agenda this afternoon has come over from the Senate. (Other committees are still hearing bills for the originating chamber, though probably not for much longer.)

I wasn't a big fan of Chairman Pete Gallego's decision to set up half a dozen subcommittees where most bills assigned to Criminal Jurisprudence received their hearings, but in retrospect that was a wise move that enabled them to have hearings on a remarkable number of bills in a relatively short span of time.

Bills that have already received a hearing in Criminal Jurisprudence (or one of its subcomittees) could still possibly move through the process in time to pass this session, but those bills still waiting for a first hearing are almost certainly goners, just because of the calendar. OTOH, bills being heard from the other chamber have an excellent (though certainly not guaranteed) chance of passage.

Among senate bills that will be heard in House Criminal Jurisprudence today:

SB 257 by Estes banning sale of salvia divinorum to minors. I've written before why this appears to be a solution looking for a problem.

SB 359 by Patrick enhancing penalties for thefts, burglaries, robberies or assaults committed during a period of time and with a locale designated as a disaster area by the President, the Governor, or "any other government official under state or federal law." This seems a bit too broad and ham-handed to me. After the experience with Hurricane Katrina, it strikes me that some looting in the aftermath of disasters may be a function of straight up survival needs. I can see penalizing someone more if, taking advantage of a disaster, they decide to go steal TVs, cars, or other goods in an opportunistic fashion. But the bill doesn't have any exception, for example, for those who steal food out of desperation in the wake of a chaotic disaster. That's of particular concern in instances like in New Orleans where it took way too long for government help to arrive. This legislation doesn't quite seem ready for prime time.

SB 625 by Wentworth would revamp the Texas Task Force on Indigent Defense, renaming it the Texas Indigent Defense Council, and impose new rules on counties pursuing public defender programs, particularly those which choose to contract services to a nonprofit. I can't readily tell what the implications of this bill might be for existing PD programs, so I'd encourage readers with more specific knowledge of the topic to read the bill and let us know in the comments what you think of it. (I put in a call to Sen. Wentworth's office to clarify what exactly the bill aims to accomplish and will update when I find out more.) UPDATE: I'm informed this bill grew out of two resolutions from the Texas Judicial Council, see here and here (pdf files) for more background.

SB 828 by Whitmire is an incrementalist anti-corruption bill that would allow tallying up multiple transactions in abuse of official capacity cases in order to get to a higher penalty range "if separate transactions that violate [the statute] are conducted pursuant to one scheme or continuing course of conduct."

SB 1091 by Senators Ellis and Duncan would establish a "capital writs committee" to assist indigent death row residents in filing state habeas writs. The committee will both have staff attorneys and also farm out cases to a list it will develop of qualified habeas attorneys. The bill also would reimburse counties for similar services when the capital writs committee has a conflict of interest or otherwise is not in a position to take on the client. The committee would be disallowed under the proposed bill language from working on federal habeas appeals.

Cameras, crime reduction and cost

Do surveillance cameras in public spaces reduce crime and are they worth the cost?

I've been highly skeptical of claims by Dallas police that new surveillance cameras downtown have radically reduced crime, mainly because their results dramatically contradict the experience in other jurisdictions that have used such cameras from a long time. Typically, DPD officials simply state that crime has declined because of cameras with no documentation and the Dallas News dutifully reports it without delving into specifics.

So I was unsurprised to see this story in the Dallas News yesterday by Steve Thompson, "Dallas surveillance cameras cut crime but are costly to monitor," claiming that in areas covered by cameras downtown, "crime there so far this year is down 11 percent from 2008."

That sounds like a big number, but it wasn't until the News published a story today by Tanya Eiserer ("Dallas crime drops 18.7% in first three months of 2009") that we gained enough context to know if that means cameras "worked." She reports that, overall, reported crime in Dallas is down a whopping 18.7% compared to last year!!

So if crime in the areas with cameras declined LESS than in areas without them, how can anyone credibly claim cameras are reducing crime? It's just not true. Simply repeating officials' claims that cameras "work" doesn't mitigate actual statistical evidence that they don't.

Meanwhile, the expense from camera systems is too much for the city to handle - a quarter million dollars a year to monitor 25 cameras 24/7 - so the city will begin to ask neighborhood groups to foot the monitoring bill, in many cases after they've already ponied up to buy the cameras in the first place. Reported Thompson:

The cameras were bought with money from neighborhood, business and philanthropic groups. They cost $8,000 to $10,000 each and thousands more dollars to link their feeds to the police dispatch center.

Police, meanwhile, have provided the manpower to monitor them. Retired and light-duty officers watch feeds 24 hours a day, zooming in on people of interest.

Industry standards recommend one pair of eyes for each 25 cameras. But in Dallas, usually only two employees juggle the nearly 100 feeds at any given time.

"There's different staffing on each watch, but generally right now, we do not have the ideal staffing down there for the cameras," Deputy Chief Tom Lawrence said.

This, as dozens more cameras have been proposed and are expected in places like Fair Park, Uptown, White Rock Lake, and along Jefferson Boulevard in Oak Cliff. Money raised by neighborhood groups is helping pay for them.

"I believe they're seeing the effectiveness of the cameras, and they want to see if they can partner with the police department," Lawrence said.

At Monday's meeting, Dallas police recommended that the city pay to monitor the cameras only in designated violent-crime hot spots. In other areas, neighborhood and business groups would have to pay for the manpower themselves.

The committee members agreed and voted to take the recommendation to the full council.

Police say it costs about $250,000 a year in manpower to monitor one station of 25 camera feeds around the clock.

This is so back-assward it's incredibly frustrating. "Violent crime hotspots" aren't the appropriate place for cameras because police can't respond quickly enough. What you need in those places are boots on the ground - actual street patrols or even walking beats in targeted areas have a much greater impact on safety because a camera cannot intervene to stop a crime. Instead, the best security studies say cameras are most useful when targeting specific, high-value assets, but not for general public surveillance.

There's no cost-benefit analysis that justifies $8-10K per camera and $250K per year for monitoring 25 of them, which is why the City of Dallas is unwilling to foot the bill for their installation or expansion to new areas. And Thompson's cost analysis doesn't even take into account the hundreds of hours police must spend watching useless video that in most cases won't actually help to solve the crime. (After all, cameras can be easily defeated by high-tech means like hats, sunglasses and hoodies.)

Dallas' experience is producing some important lessons about surveillance cameras - ones they've long ago learned in the UK: Surveillance cameras in public spaces don't reduce crime, are costly to operate, and are never a substitute for police officers actually patrolling crime-ridden areas.

MORE: A commenter points out that Dallas PD's crime reduction numbers likely have more to do with the fact that they recently altered their crime reporting protocols to reclassify or omit many reported offenses - particularly burglaries. Given that, it's clear these "reductions" in crime aren't comparing apples to apples and it's impossible to tell from these data whether crime has declined overall, downtown, or anywhere else in Dallas, much less whether surveillance cameras "worked."

Bill would expand oversight of state DNA labs

The Texas Forensic Science Commission would gain authority to audit DNA labs around the state if SB 1909 by Sen. Juan "Chuy" Hinojosa becomes law. The bill will be heard today in the Texas Senate Criminal Justice Committee. Audits would include periodic, unannounced on-site inspections and off-site retesting of one or more samples from each laboratory. Audit reports would be made public only after the DNA lab had 30 days to correct any deficiencies and auditors have an opportunity to perform a subsequent evaluation which might

Erecting barriers to in-prison employment

I've already lamented the bipartisan effort to scale back the too-small number of "prison industries" programs employing Texas convicts while they're incarcerated, so rather than separately analyze SB 1169 by state Sen. Robert Nichols, which is up today in the Texas Senate Criminal Justice Committee, I'll just point readers to the item I wrote when the companion bill was heard in the House: "False claim of unfair competition could limit in-prison work programs." Personally, I'd prefer the Legislature expand such programs instead of scale them back.

UPDATE: Sen. Nichols said in laying out the committee substitute that the altered bill will grandfather existing prison industry programs and that restrictions would only apply to new participants. The substitute also expands the number of prisoners who can participate in these programs from 400 - 750. That's definitely an improvement, but I still think it's unwise to erect new barriers to participation in prison industries programs.

"Partial" bail bill aims to reduce "hardship" on defendants

State Sen. Jeff Wentworth has an interesting bill up today in the Texas Senate Criminal Justice Committee - SB 498 - which would allow counties to accept a partial cash bond from pretrial defendants "if the magistrate determines that requiring the defendant to deposit a cash bond or to procure a surety bond in the full amount of bail will impose an unreasonable hardship on the defendant."

Judges can already accomplish the same thing through "personal bonds," but many are loathe to do so for political reasons (i.e., fear of being labeled "soft on crime"). In that climate, giving judges this authority may help reduce needless pretrial incarceration and jail overcrowding without being seen as reducing or eliminating bail. One would expect opposition from the bail bond industry, but perhaps they'll be placated by the fact that "partial" bonds can come from surety bondsmen as well as in cash.

This is a thoughtful, commendable approach: Somebody brought Sen. Wentworth a good bill.

UPDATE: At the hearing, Sen. Wentworth said some counties had done this for years and the bill reacts to an Attorney General's opinion that said the practice was illegal. Judge Raymond Angelini said the same thing has been done in the federal system for many years. He said it would save the county money because defendants could use money they would otherwise spend on bail to pay for an attorney.

Sen. Hinojosa, though, said such savings could be offset if counties then have to pay to find that individual and take them back to jail, whereas right now that burden lies with the bail bondsmen. Judge Angelini said this would be a discretionary system and judges would not be required to use this mechanism.

Sen. Patrick said that California and New Jersey had tried this system and scrapped it, but Judge Angelini said Bexar County had used the system for years without significant problems. Keith Hampton from the Texas Criminal Defense Lawyers Association said a similar program also worked well in Travis County.

Andrea Marsh of the Texas Fair Defense Project said federal data showed defendants with these types of bonds were just as likely to appear in court as defendants with regular surety bonds. (Another witness contradicted her with a dueling study, testifying that the failure-to-appear rate was twice as high for partial-bail participants.) In addition, it's a myth, Marsh said, that bail bondsmen were out there catching large numbers of absconders - 90% of absconders in Houston, she said, are brought in by law enforcement officers, not surety bondsmen.

Lots of opposition signed up against this bill (160 people recorded their opposition without giving testimony!), including prominent judges from across the political spectrum, from Charlie Baird in Austin to Cynthia Kent in Tyler. Chairman Whitmire said he intended to leave the bill pending for the various parties to work on the language.

SCOTUS rolls back police search authority at traffic stops

Here's some good news for liberty-loving drivers:

The US Supreme Court today issued a rare pro-4th Amendment decision to restrict vehicle searches incident to arrest. In a 5-4 ruling, the high court held in Arizona v. Gant that "Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest."

The majority lamented that "Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result."

In a concurring opinion, Justice Scalia wrote that:

Law enforcement officers face a risk of being shot when-ever they pull a car over. But that risk is at its height at the time of the initial confrontation; and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car.

Bottom line, said the court: "Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

Though Gant is a relatively narrow ruling, one hopes it portends a renewed commitment to basic Fourth Amendment protections which have been battered and abused by the Court recent years.

RELATED: See the SCOTUSWiki page on the case.

MORE: From Mark Bennett at Defending People, Mark Sherman at the Huffington Post, Debra Weiss at the ABA Journal, Orin Kerr at the Volokh Conspiracy, Gideon at A Public Defender, and Scott Greenfield at Simple Justice.

AND MORE: See a discussion of the case from the TX prosecutors' user forum.

Ethicists say Keller should be removed from bench

One of the signators forwarded me a copy of this document filed yesterday with the Texas Commission on Judicial Conduct by two dozen of the nation's leading judicial ethicists. You can read the full document here:

• Expert declaration regarding alleged misconduct by Judge Sharon Keller to the Texas Commission on Judicial Conduct (pdf)
  

These lawyers and scholars accuse Texas Court of Criminal Appeals Presiding Judge Sharon Keller of failing to maintain impartiality and of "dishonesty" in both her financial reporting and attempts to obtain money from the state to pay for her lawyers. They're particularly critical of Keller's self-described status as a "pro-prosecution" judge.

According to the declaration, referencing the Texas Constitution (Art. 5, sec. 1-a(6)A), "her egregious misconduct 'casts public discredit upon the judiciary [and upon the] administration of justice.'" The ethicists conclude, "These violations are sufficiently serious to require Judge Keller be removed from the bench."

MORE: From Mary Alice Robbins at Texas Lawyer.

Corrupt Dallas deputy facilitated multinational drug ring

Investigation of a corrupt Dallas Sheriff's deputy led to discovery of an international smuggling ring connecting Mexican drug cartels with the Italian mafia, Jason Trahan at the Dallas News reports ("Mexican cartels unloading drugs to Italian mafia," April 21):

"We've got some of the major cartel members established here dealing their wares in Europe," said James Capra, head of the Drug Enforcement Administration's Dallas office.

Experts say warring cartels battered by unprecedented U.S. and Mexican government crackdowns are increasingly looking to Europe as an expansion market. Across the Atlantic, demand for cocaine is high and prices are up. A kilo sold for $20,000 in Dallas is worth up to three times as much overseas, experts say.

Mexican cartel operatives in North Texas "are dealing with Italy, Spain, you name it," he said. "They can operate their logistical center from here and coordinate between Mexico, Central America and Europe."

Italian capos are venturing to North Texas to get in on the action, says one mob expert.

"Places like Houston and Dallas are where these criminal organizations are most likely to invest their money," said Antonio Nicaso, an internationally recognized author and lecturer on Italian organized crime. "This is the right time, with the recession going on."

Dallas has long been a recognized distribution hub for drugs smuggled up the Interstate 35 corridor from Laredo. From here, narcotics head out across the country to Atlanta, Chicago, New England and elsewhere.

The revelation that the cartels are forming alliances with Italian syndicates came last year when the DEA revealed that the Mexican Gulf cartel, which supplies Dallas with cocaine, was working with New York associates of the powerful Italian 'Ndrangheta mafia.

Last August, the DEA arrested a Dallas County jailer accused of tipping off drug dealers to what appeared to be a small-time local narcotics conspiracy. The jailer, Brenda Medina Salinas, has pleaded guilty and is awaiting sentencing. As others pleaded guilty and court documents piled up, it became clear that the drug pipeline in that case reached all the way to Europe and the clandestine world of the Camorra.

Excellent reporting. Be sure to read the whole story. Notably, it was the feds who discovered the corrupt deputy, not any internal checks and balances at the Dallas Sheriff's office - further evidence why an external monitor is needed to investigate law enforcement corruption.

RELATED: See an excellent story from El Proceso, translated into English by Kristin Bricker at The Narcosphere, about Sinaloa cartel chief Joaquin "El Chapo" Guzman who heads a criminal smuggling organization operating in 38 countries.

Bill would allow habeas appeals based on discredited science

Yet another piece of important new innocence-related legislation, SB 1976, passed the Texas Senate yesterday and is headed over to the House. According to the Austin Statesman's Mike Ward:

Criminals who were sent to prison — or sentenced to death — based on discredited scientific evidence would be given a new way to challenge their convictions under a bill passed this morning by the Texas Senate.

In recent years, an increasing number of arson and gunshot convictions in Texas have triggered alarm as new technology proved earlier evidence wrong, and convictions were cast into doubt — including at least one case in which the prisoner was executed.

The measure by state Sen. John Whitmire, D-Houston, would allow discredited scientific evidence that figured in a criminal conviction to be considered by an appeals court in order to establish the innocence of a defendant.

“This could help restore someone’s liberty in cases where discredited evidence was used to convict them,” Whitmire said. “I majored in political science, not forensic science, but I know this will improve current law.”

Advancements in forensic testing — DNA, ballistics and arson — have led to new evidence being uncovered in several cases in Texas. Whitmire said that led him to file the bill, which clarifies how discredited scientific evidence can be used in court appeals.

Key issue for those appeals: That the new information could not have been known earlier, when the defendant was convicted, because the science used to validate it has since been invalidated.

See also an Innocence Project of Texas fact sheet describing an earlier version of the bill.

Jurors from false confession case call for recorded interrogations

Three jurors from the infamous Richard Danziger case coauthored a column in the Houston Chronicle over the weekend arguing that interrogations should be recorded to give jurors better evidence ("Jurors regret convicting innocent man," April 18):

When we were called to serve as jurors in an Austin sexual assault and murder case, we could never have predicted the ending of this story. Twelve years after we found Richard Danziger guilty of aggravated sexual assault, new DNA evidence revealed that Richard was, in fact, innocent. This shocking discovery left us confused, angry and wondering how this tragic error could have ever happened. ...

Unfortunately, Danziger’s case is not unique. False confessions have played a role in about 25 percent of the 234 DNA exonerations across the country. Whether because of mental incapacity, youth or persuasive threats, DNA evidence proved that each of these people was convicted of a crime he did not commit.

We were horrified to learn after Danziger’s exoneration that Ochoa’s interrogation was characterized by lies about inculpatory evidence and threats that if he did not confess and testify against Danziger, he would receive the death penalty. None of this came to light during the trial, however, because there was no record of the interrogation procedure. Had we been given the opportunity to see the context of Ochoa’s confession, including the coercive tactics that were used for hours against him, we would have at least had something to deliberate about. We did the best we could with the evidence provided to us; unfortunately, that evidence was dangerously incomplete, undocumented and untrue. ...

If interrogations are recorded in their entirety — from the reading of rights to the end — jurors will have access to a clear, complete picture of the circumstances that led to a confession. This is essential in order to effectively evaluate the quality of that evidence. While many police departments have begun to record suspect interrogations, there is currently no requirement that they do so. Some things are too important to leave optional, and we think this is one of them. A complete record of suspect interrogations documents a crucial part of a criminal investigation, and it is essential for jurors to do their jobs well and reach justice.

I'd recently discussed pending legislation to require recording interrogations (HB 4090 by Farrar) which I'm hoping will be voted out of the House Criminal Jurisprudence Committee this week. Meanwhile, Sen. Ellis' somewhat weaker companion bill, SB 116, has yet to receive enough support to make it out of the Senate. Neither bill would exclude information from court under any circumstances, though Rep. Farrar's bill would give a jury instruction if an interrogation wasn't recorded; a long list of exceptions gives judges discretion not to apply the instruction where it's unwarranted.

The Danziger jurors offer an incredibly powerful argument for why both legislative chambers need to act on this legislation pronto. There's nothing partisan or ideological about these bills - they're solely about ensuring juries, judges, and other decisionmakers have access to the best possible evidence on which to base their decisions. It's hard for me to understand why anyone would oppose that.

Texas Senate endorses penalty reduction for juvenile capital murderers

I'm as shocked to see the Texas Senate unanimously endorsed eliminating life without parole for juvenile capital murderers as I was to see Williamson County DA John Bradley testify in favor of the bill in committee. Congratulations to Sen. Juan "Chuy" Hinojosa for getting this landmark legislation through the Legislature's upper chamber. If it earns approval from the House and the Governor, the new law would make juvenile capital offenders eligible for parole (though not entitled to it) after 40 years, so in most cases sometime in their 50s.

I don't track capital sentencing issues closely, but Doc Berman over at Sentencing Law & Policy has written a lot on this topic, see:

• Assailing LWOP for juvie offenders
• Effective examination of juvie LWOP problems in Michigan
• HRW report assails juvie LWOP in California
• Nebraska working to reform juve LWOP sentences
• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"
• Does Roper suggest young juve LWOP is unconstitutional?

A drug dealer registry? One unworkable, bad idea deserves another

Apparently because the sex-offender registration program has been such a glowing success (/snark), Rep. Larry Taylor has proposed HB 4411, creating a "Drug Dealer Registration Program."

I guess we're going to skip over murderers in the Legislature's registry mania and go straight for the dope dealers? This is pure silliness - basically make-work for DPS. Drug dealers' criminal history, after all, is already public information (as is murderers').

The House Public Safety Committee will consider the bill today.

Poor representation in capital cases rewarded with new appointments

With judges now fully empowered, according to the 5th Circuit, to exclude attorneys they don't believe are qualified, there seems to be little excuse for tolerating the kind of attorney performance described by Lise Olsen in a Houston Chronicle piece this morning, "Death row lawyers get paid while messing up," April 20):

Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys, a Chronicle records review shows.

Missing deadlines means their clients can be automatically denied constitutionally mandated reviews before their execution. Houston lawyer Jerome Godinich missed three recent federal deadlines, the Chronicle reported in March. One client was executed in February after the federal appeal was filed too late. In March, the 5th Circuit Court of Appeals chastened Godinich for using the same excuse — a malfunctioning after-hours filing machine — for missing another deadline for a man still on death row.

A recent review of the Harris County Auditor’s billing records and district court records shows Godinich remains one of the county’s busiest appointed criminal attorneys, billing for $713,248, including fees for 21 capital cases. He was appointed to handle 1,638 Harris County cases involving 1,400 different defendants from 2006-March 2009, court records show.

He refused comment.

Godinich is not the only attorney to miss death row deadlines. A San Antonio lawyer failed to file four state appeals on time, according to opinions last year by the Texas Court of Criminal Appeals. A Fort Worth lawyer has missed both state and federal deadlines in at least five recent cases, though he sought and was granted more time to prepare on four of them, according to court records reviewed by the Chronicle.

The failure to file such appeals, called writs of habeas corpus, means death row inmates risk missing their last chance to submit new claims of innocence or evidence that could alter their conviction — or death sentence. State judges can be flexible, but federal judges follow tight and sometimes confusing deadlines.

Only one of three Texas lawyers who repeatedly missed such death row deadlines has faced fines or been forced to forgo fees by judges.

There's little doubt representation in capital cases has improved in Texas since the passage of the Fair Defense Act, but accountability mechanisms for excluding poor attorneys clearly haven't yet matured to the point where judges have clear guidance for when it's appropriate to reject or remove attorneys from the appointment list.

RELATED: Gideon has more.

The Judicial Immunity Community: 5th Circuit shuts down attorney suits over court appointments

What happens when judges improperly reject attorneys for the appointment "wheel" to represent indigent clients? Why, nothing, of course. They're judges, you see, so they're immune. Whadidya expect?

Over at Texas Lawyer, John Council brings word of a federal court opinion shutting down litigation over judges' selection of attorneys under the 2001 Fair Defense Act ("5th Circuit rejects suit against judges over court appointments," April 20):

Eight years after the Legislature passed the Texas Fair Defense Act, some lawyers still are not happy with how judges carry out the law, which requires judges quickly to appoint qualified attorneys to represent indigent defendants.

Lawyers get frustrated when judges exclude them from a county's rotating appointment system, and some even sue the county and the jurists. But on April 8, the 5th U.S. Circuit Court of Appeals found that a lawyer couldn't sue Tarrant County and the criminal district court judges hearing felony cases there because the judges denied his application to be put on a list to receive court-appointed cases.

Specifically, in Davis v. Tarrant County, et al. the 5th Circuit decided that when judges create a list of attorneys eligible for court appointments within the county, that is a "judicial act" protected by judicial immunity.

The 5th Circuit also ruled that Tarrant County could not be held liable for the state judges' actions because, again, the jurists were acting in their judicial capacities pursuant to their obligations under the 2001 Fair Defense Act, Article 26.04 of the Texas Code of Criminal Procedure. [See the court's opinion.]

Without having analyzed the opinion, I'll note that the folks whose views I usually trust on these matters sided with the plaintiff on this one:

The Fair Defense Project filed an amicus brief in support of Davis' position that the defendant-judges acted as county policymakers and that Tarrant County should be held liable for the defendant-judges' actions in implementing the appointment policy.

Andrea Marsh, executive director of the Texas Fair Defense Project, disagrees with [the plaintiff's attorney's] assessment that the 5th Circuit's decision undermines the Fair Defense Act.

The Fair Defense Act requires judges to set objective standards in creating an appointment list, such as requiring lawyers to try a certain number of cases before they can be put on an appointment list, Marsh says. But the act also allows judges as a group subjectively to use their discretion when deciding whether lawyers should be on the list, she says.

"The Fair Defense Act says over and over again that counties are responsible for implementing state law for indigent defendants and having policies that comply with the Fair Defense Act," Marsh says. The 5th Circuit focused on the Tarrant County judges' ability to reject individual attorney applications but did not reach whether the judges are liable for the role they play in adopting a procedure for appointments required by the act, she says.

Marsh also believes the 5th Circuit opinion will shut down similar attempts by attorneys to sue counties and judges over the appointment systems. There have been several such suits filed in Texas over the past few years, she says.

I understand Andrea's point that the crux of the Fair Defense Act remains intact and the court did not address whether judges are liable for adopting procedures that compy with the law. But this does seem like a case of judges protecting judges, excusing judicial behavior (rejecting attorneys for reasons besides their qualifications) that flouts the Fair Defense Act in deference to court-created judicial immunity. I don't know the details of the plaintiff's suit beyond what's published in the article, so I can offer no opinion whether this attorney is qualified. But I wonder, if the courts won't allow civil suits when judges violate the Fair Defense Act in their appointments, how can that law be reasonably enforced? And by whom?

RELATED: See more top-notch blogging on indigent defense issues from Mark Bennett in his excellent recent post, "Revisiting the problem of the working poor."

Innocence Project of Texas faces Madoff-spawned budget shortfall

This one hits pretty close to home:

The Innocence Project of Texas faces potential economic oblivion later this year after a foundation whose funds made up the bulk of its income closed its doors due to an infamous Wall Street scandal. In a column in yesterday's Fort Worth Star Telegram, Cory Session, the youngest brother of the late Timothy Cole (who was exonerated posthumously this spring), writes:

The Innocence Project of Texas fights daily for its survival.

Bernie Madoff’s Ponzi scheme robbed the nonprofit of its funding. It will cease to exist after July, unless there is "manna from heaven." The project is operating on fumes and the credit card of one of its volunteers to seek justice for the incarcerated innocent.

On the floor at the Innocence Project office sit boxes of files. Most will never be investigated because there’s no money.

Luckily, [Timothy] Cole’s file was investigated — only it was eight years after he died in prison. The volunteers at the project promised Tim’s mother that they would still seek justice for her son. Their promise resulted in the first posthumous DNA exoneration in Texas.

Often, I have read about millions of dollars being donated to support the arts, which are a vital part of our culture, but I can’t help but wonder why those who "have" are not willing to do the same for the innocent.

The Innocence Project of Texas has a proven track record of numerous exonerations.

Tim Cole will never get to enjoy the arts.

I've been working since last year as the Policy Director for the Innocence Project of Texas, so obviously this unhappy possibility of the group's closure means a great deal to me personally, but so does the potential loss of an organization that's been an important change agent in Texas over the last couple of years.

If you've been following Texas' DNA exonerations on this blog or elsewhere and believe the work of the Innocence Project of Texas is important and needs to continue, I hope you'll consider making a donation to the group, as Kathy and I just did, in Timothy Cole's memory. And thanks, Cory, for your kind words and the helpful plug for the group.

Senate would let judges reduce misnamed 'driver responsibility' fees

It's not nearly a far as I'd like to see them go, but the Texas Senate passed legislation this week to knock off some of the rough edges on Texas' so-called "driver responsibility fee," which has been a complete public policy bust. Reports the Dallas News ("Texas Senate votes to ease surcharges on DWI, other driving violations," April 18):

The Senate voted Friday to revamp the troubled Texas Driver Responsibility Program, under which more than 1 million Texans have been unable or unwilling to pay stiff surcharges on top of their regular fines for driving violations.

Compromise legislation sent to the House would give judges discretion to lower the surcharges – which can run as high as $3,000 for a single driving-while-intoxicated conviction – and also bar the state from assessing surcharges against students and the indigent.

The bill by Sen. Eliot Shapleigh, D-El Paso, would also allow drivers who are slapped with a surcharge to get credit for each year that they have no violations. It was approved, 23-5.

"This is a terrible program that used punitive fines to plug holes in the state budget," the senator said, noting that it became law in 2003 when the Legislature was trying to erase a $10 billion revenue shortfall.

Shapleigh said that of the 1.6 million Texas drivers who are being forced to pay the surcharges, nearly 1.1 million have not paid, and many can't afford to.

"Our founders never intended for debtors' prisons to substitute for an adequate tax system," he said, adding that most lawmakers "now recognize that this program has never worked and needs some fundamental changes."

Shapleigh originally proposed that the program be terminated. But opposition from Republican senators forced him to accept a compromise.

Why not just tattoo their foreheads and be done with it?

Drivers licenses are the wrong place to try to solve unrelated social problems, and here's a good example why.

On Monday, the House Public Safety Committee will hear legislation - HB 1091 by Rep. Tan Parker - that would identify sex offenders as such on their drivers licenses. How will this prevent sex crimes, exactly? Does anyone really think a sex offender will show their victim their personal identification before assaulting or molesting them?

The goal of this bill and much of other legislation aimed at sex offenders these days isn't to protect the public so much as to impose permanent pariah status on those convicted of sex crimes. Many people might agree with that goal, but in practice the labels are sometimes unfairly applied to lesser offenses, and the recent string of DNA exonerations has revealed quite a few actually innocent people who'd been falsely convicted are also harmed by such quasi-official shunning policies.

What's more, as a practical matter, if sex offenders can't find any place to live, work, or even shop, this state-sponsored scarlet letter makes the public less safe because the risk is they'll give up trying to do the right thing and start committing the offenses that got them in trouble in the first place. Why does every store clerk who takes a check need to know somebody is on the sex offender list? IMO that would create more problems than it solves.

Unless you prefer more unlicensed drivers on the road, it's counterproductive to single out unpopular categories of drivers with special denotations on their license that are identifiable by the general public, whether we're talking about sex offenders or immigrants. In both cases the tactic borders on an invitation to needless harassment of licenseholders; indeed, that almost appears to be the point.

Report: Shortchanging indigent defense budgets diminishes constitutional rights

Dr. Tony Fabelo, one of Texas' leading criminal justice policy experts, emails to let us know about a new report, produced by a national committee on which he participated, arguing to spend new resources to shore up public defender systems and corresponding press coverage on NPR.

The report goes into detail about the wide range of ways public defender systems fail poor defendants. Sometimes people don't get lawyers at all. Other times they get a lawyer who is so overworked and underpaid that there's no way the accused can get a real defense.

When that happens, the system ends up with people like Alan Crotzer, a man who spent 24 years in prison for a crime he did not commit. "I was poor and indigent," said Crotzer. "I didn't have no political connections, but I was innocent. And because of that fault in me, I spent more than half of my life in prison."

Crotzer was released when DNA evidence proved his innocence. He has been out for three years, and he's part of the committee that helped produce the report.

The study includes a list of recommendations to fix public defender systems — for example, each state should have a commission to oversee indigent defense. These steps may not be cheap, and it's a difficult time to convince states to spend money.

[Former federal judge Tim] Lewis argues that there's really no choice. "Even in difficult economic times, how much is a constitutional right worth?" he asked. "What price tag do we place on the right to vote? The right to be free from illegal searches and seizures? This is no different."

RELATED: See coverage from the Stand Down Blog.

Bills boosting penalties make statements rather than solve problems

More new, increased criminal penalties are coming down the pike this session, it appears, likely adding to the 2,324 separate felonies Texas already has on the books.

Sen. Jackson's latest oyster enhancement passed out of committee. Trey Martinez-Fischer (and many others) want to boost penalties for owners of dogs who attack children. Meanwhile, Mike Ward reports that computer hacking into government systems may become a felony, even if no data is taken, if a bill by Sen. Kel Seliger that just passed the Senate becomes law.

Dave Montgomery at the Fort Worth Star Telegram has a story about a bill to make theft of livestock a third degree felony no matter how small the animal's value; it passed the Senate on a 29-2 vote. The bill will be another good test case to measure whether increasing criminal penalties deters crime, as evidenced by this exchange on the Senate floor:

Sen. Carlos Uresti, D-San Antonio, questioned whether making a third-degree felony was too much.

“Up to 10 years in prison for one cow?” he asked.

“This will deter rustling,” Seliger said.

The Senate agreed, voting 29-2 for final passage of the measure.

Whether rustling is deterred will be a measurable outcome, so if that turns out not to be the case, I hope Sen. Seliger will step forward a couple of sessions down the line to roll that penalty back. The described boost in the volume of rustling (a trebling in one year, supposedly, to 970 cases of cattle theft) could easily be attributable to the existence of just one or two active theft rings. This is another instance where more vigorous enforcement of laws currently on the books would have more impact that making the laws tuffer.

Indeed, frequently the assumed "deterrence" hoped for by backers of higher penalties simply doesn't pan out in the real world. E.g., last session the Lege boosted penalties for theft of any amount of scrap metal to a felony, only to see the offense rate skyrocket after the new laws were enacted because of rising copper and metal prices. The predictable legislative response: Expand the list of items that trigger an automatic felony charge.

In reality, the penalty class assigned to scrap metal theft didn't have much to do at all with the frequency of the violation, and I'll bet the same is true of cattle rustling.

The House is only now beginning its biennial penalty-hike spree in earnest. On Monday's House calendar, for example, HB 671 by Darby would boost penalties for theft by one category (or "enhance" it, to use the Orwellian capitol euphemism) if the victim is a nonprofit organization. Would this have prevented Bernie Madoff, et. al., from defrauding foundations or other nonprofits? It seems doubtful - this bill is designed to make a statement, not solve a problem.

Another bill on Monday's House calendar, HB 1813 by Vo, would boost penalties for forensic technicians for tampering with government records, based largely on one recent case with no real precedent or reason to believe the problem is widespread. I'm glad if legislators want to address crime lab flaws, but there are a lot more pressing concerns than this.

And that's just a taste of the dozens of bills increasng criminal penalties still moving through various committees in both chambers. I've not been tracking so-called "enhancement" bills this session as closely as in the past, but in almost every instance there are other ways to pursue the same policy goals by using the laws currently on the books, as well as approaches that don't involve the justice system.

'American Violet' portrays landmark TX drug task force scandal

The movie American Violet opens today nationwide, including several Texas locations (see the complete list). The film fictionally depicts an infamous case that occurred here - a large drug bust in Hearne, a small town near Bryan-College Station, back in 2000 - the year after the "Tulia" raid.

Indeed, I just mentioned in the previous post how Sen. Juan "Chuy" Hinojosa had carried legislation in 2001 requiring corroboration for informants in undercover drug stings, a bill that grew directly out of the Tulia and Hearne cases. (A documentary about the Tulia drug stings, coincidentally, recently aired on PBS.) So it's fitting, perhaps, for the movie to open the day after he passed a bill through the Texas Senate extending the corroboration requirement to jailhouse snitches.

I've not seen the film yet, but here are some initial reviews:

• New York Times: Fighting injustice in small-town Texas
• Washington Post: Wronged Mother No Shrinking 'Violet'
• LA Times: 'American Violet'
• Washington Times: Putting a face on the drug war
  
• Rex Reed: Finally, a good movie to see and a true story I can believe in!
• Huffington Post: A powerful movie about race and the drug war
  
• Chicago Tribune: Beyond the Screen: For 'American Violet' inspiration the work isn't over
• Beliefnet.com: Breakthrough Performer: Nicole Beharie
• Atlanta Journal Constitution: Cast members touched by film's story of injustice
• Los Angeles Wave: Innocence Project
• NPR: A Drug War's collateral damage
  
• Hollywood-Chicago.com: Interview with director Tim Disney
  
• Miller-McCune: Taking drug task forces to task

And here's the official trailer:

Eyewitness ID, corroborating jailhouse informants clear Senate

Two positive, if incrementalist pieces of legislation passed the Texas Senate yesterday related to preventing false convictions:

• SB 117 by Ellis requiring law enforcement agencies to adopt written policies related to eyewitness identification procedures, and

• SB 1681 by Hinojosa requiring corroboration for jailhouse informant testimony in order to secure a conviction.

Sen. Ellis' bill, in particular, is a much stronger piece of legislation than the Senate passed last session on the same topic, perhaps bolstered by the large number of exonerated men since then. Faulty eyewitness identifications are the leading cause of false convictions among DNA exonerees, and the Court of Criminal Appeals' Criminal Justice Integrity Unit told the Lege eyewitness ID reform should have the "highest priority of any efforts in the area of wrongful convictions."

Hinojosa's bill builds on legislation he carried several sessions ago requiring corroboration for informant testimony in undercover drug stings (back in 2001 when he chaired the House Criminal Jurisprudence Committee). At the committee hearing on the bill, Hinojosa agreed that, ideally, no one should be convicted based on uncorroborated testimony for which a witness receives official compensation or leniency. But ideals aside, you do what's possible in the legislative process and Hinojosa is extending the corroboration requirement to a significant new category of informants.

Now these bills move to the House, which has yet to move any legislation from the Calendars Committee to the floor (though a few bills have passed on "local" calendars). Both of these are agreed bills whose main barrier to passage at this point may be the calendar, rather than any organized opposition.

An anachronistic debate over 'racial profiling' data

While I was busy on Tuesday at a House Criminal Jurisprudence subcommittee meeting and then watching the House Human Services Committee discuss the Great Eldorado Polygamist Roundup, the Senate Criminal Justice Committee was hearing a bill that I've long supported - SB 1120 by Royce West - creating a central repository of so-called "racial profiling" data generated by law enforcement officers at Texas traffic stops.

Listening to the hearing this afternoon (video is here, starting at the 35:45 mark), I was surprised how this has become a veritable cause celebre for the police unions. They attacked it like a beachfront they were storming. My old pals Charlie Wilkinson of CLEAT, Tom Gaylor of TMPA, and Mark Clark of the Houston Police Officers Union all lined up one after another to rail against the bill.

I've got a lot of history with this legislation, as did most of the folks testifying in opposition. I worked on the original bill requiring the gathering of data and the installation of cameras in police cars when I was Police Accountability Project Director for the ACLU of Texas back in 2001. And for a while, when the data first started coming in, I worked closely with statisticians and staff at the Texas Criminal Justice Coalition to create a private repository there based on annual open records requests, which for years was managed by the indefatigable Molly Totman.

So I got to see up close exactly what the data did and didn't show, and in fact the push for a repository has always been, in part, about the fact that many agencies don't compile reports, respond to open records requests, or produce data in a usable or meaningful format. Some agencies' data was useful and informative, and for others internal discrepancies made it difficult to even perform basic calculations.

The debate over this bill seems like something out of a time capsule, with Gaylor stridently complaining that the purpose of data collection was to "determine if racism exists in law enforcement." But that's not really how the law played out on the ground. As Sen. West got Charlie Wilkinson to admit, nobody can point to a single example of an officer ever disciplined for racial profiling without due process. The fears expressed seemed to ignore the state's 8 years of history with data collection that generated none of the ill effects they predicted.

To further demonstrate the odd, time-capsule quality of this debate, here's something I wrote about a similar bill two years ago that almost exactly mirrors what I'm inspired to write in reaction to Gaylor and Clark:

We've learned a lot from this data over the years since police began to collect it. Before departments gathered racial profiling data in Texas, it was common for police to claim there were not disparities in how many minorities received tickets compared to white people, or how often they were subjected to searches. The existence of those disparities has been confirmed by the data once and for all, and now the debate has shifted to the CAUSE of the disparities and how to reduce them. That change alone to me was worth the price of admission, inching us one step closer to admitting and dealing with race in law enforcement in a more honest way.

But a funny thing happened along the way in that debate - it turned out oversearching in Texas isn't only about race. Indeed, often racial disparities aren't the biggest ones. Some departments have a policy of searching more often at traffic stops generally in ways that affect everyone, white folks included. As I wrote based on Molly's report two years ago, in

My hometown of Tyler, for example in Northeast Texas, [police] searched blacks 2.6 times more than whites, compared to the town of Longview down the road which searched blacks 2.7 times more often. Sounds pretty similar, right? Well, check out the numbers as a percentage of traffic stops:

How many Tyler/Longview drivers were searched
as a percentage of local traffic stops by race

	Blacks	Latino	Anglo
Tyler PD	3.3%	3.1%	1.3%
Longview PD	19.6%	9.8%	7.2%

So once again, while both department's search patterns exhibit racial disparties, as a percentage of total stops, Longview is engaging in MANY more unnecessary searches than the Tyler PD. Indeed, whether a department has a policy of oversearching is a more significant factor than race: a white driver in Longview is more than twice as likely to be searched at a traffic stop as a black driver in Tyler.

To me, the debate over racial profiling isn't about accusing cops of racism, it's about treating people fairly and giving the public and departments tools to measure police practices to see if they're fair. These stats show that disparate treatment at traffic stops is about more than just race -- it's about documenting police practices that are eroding the Fourth Amendment for everybody.

I swear I was about to write the same thing, including the hometown example, before having a moment of deja vu and retrieving this item from 2007. Obviously, though, those arguments aren't enough because the legislation didn't pass and the opposition to the bill is more strident and focused than ever.

So something else is needed. Perhaps a mea culpa will help: We mis-framed this bill from the beginning. It should have never been pitched as "racial profiling data," but as "traffic stop data." It's supervisory functions should have been more strongly emphasized, and its goal should have been firmly stated as bolstering the Fourth Amendment.

Indeed, the data from Sen. West's SB 1074 in 2001 gave supervisors more information about what their officers did in the field - both in terms of numbers on the form and video from new dashcams in police cars - than they'd ever had before. But the racial angle has been used by Gaylor and Co. to drum up populist fervor among their ranks to try to convince their members that Sen. West and the bill's supporters were out to pillory them as racist.

That's really a mis-characterization. In retrospect, having seen up close what the data does and doesn't prove, I'd argue the data is useless for "proving racism" and anyone who has that as a goal will want to find another path to pursue.

That said, this information tells us more about basic police practices at traffic stops than we ever knew before, in particular honing in sharper focus on the practice of "consent searches," where disparities were a) often higher than disparities among drivers stopped and b) were a function of officers' discretion as opposed to a reaction to probable cause.

Some agencies began requiring written consent at traffic stops of their own accord after the first couple of rounds of data came out, and in 2005 the Legislature passed (but Governor Perry vetoed) a bill to require written or recorded consent for police to search at traffic stops, largely as a result of the data generated by this bill.

Gaylor objected to centralizing the data in a repository because it would take it out of context, but Longview's high numbers would have no context if they couldn't be compared to other, similar communities. Tom's got it exactly backward.

Bottom line: So-called "racial profiling" data in Texas is not identifiable by officer and is only reported in aggregate numbers. For that reason, it's useless for "attacking" individual officers, as Gaylor and Clark alleged, but instead puts pressure on supervisors to justify their use of resources. Why would Longview search so many of its citizens? This calls into question how management prioritizes its officers' time and focus, not any individual officer's decisions.

The key change to the data gathered under the bill would require officers to check off whether they find contraband or not when they perform consent searches. That would actually give agencies a performance measure to tell whether these tactics were justified. Would Longview continue to search at so high a rate if they could measure how many more cases were made? This would give the department another tool to evaluate that choice in an objective, evidence-based fashion.

Sen. West's SB 1074 back in 2001 was a better bill than we knew at the time, and for different reasons. His SB 1120 builds on what worked best in that 2001 legislation while, to my mind, entirely avoiding the misuses that his detractors insist will inevitably happen. Another example of interest groups opposing a reform more out of habit than reason.

Senate committee backs juvie probation pilots

The Senate Criminal Justice Committee heard SB 1374 on Tuesday that gives form to the proposed pilot programs at county juvenile probation departments aimed at diverting youth from TYC. Mike Griffiths from Dallas County said he thought his department could cut its commitments to TYC in half if the pilot program passed.

Sen. Whitmire noted that the Senate Finance Commitee did not fund the Victory Field facility in its budget and that 2/3 of the youth housed there were from the Dallas area. If the pilot worked in Dallas, he said, it would help facilitate the Victory Field closure. There was no opposition voiced to the bill, which was voted favorably from the committee.

House budget would spend $5 billion-plus on corrections without big prison guard raises

Here's LBB's big-picture summary (pdf) of criminal justice funding in the base budget coming out of the House Appropriations Committee to be debated on the floor this week:

• $4.7 billion in All Funds is provided for the incarceration and treatment of adult offenders. This reflects an increase of $80.9 million in General Revenue Funds primarily caused by state approved salary increases in fiscal year 2009; increased funding for correctional security equipment and reentry transitional coordinators; multi-year contract rate increases; increased funding for initiatives provided by the Eightieth Legislature, 2007; vehicle replacements; healthcare equipment replacements; and increased costs for food, overtime, utilities, hazardous duty pay, and adjustments to the corrections officer career ladder in fiscal year 2009. The recommendations include a decrease of $27.6 million in General Revenue Funds for contracted temporary capacity based on January 2009 population projections.

• $401.5 million in All Funds is provided for residential services provided by the Texas Youth Commission. This represents a reduction of $40.9 million in General Revenue Funds primarily caused by an institutional capacity reduction of 1,841 beds; a reduction in contracted capacity based on institutional reductions and January 2009 population projections; efficiency reductions; and one-time appropriations made by the Eightieth Legislature, 2007, for video surveillance equipment and an electronic medical records system. Recommendations for fiscal years 2010-11 include funding for the continued operation of the Victory Field Correctional Academy and the West Texas Regional Facility; two 48-bed state-operated leased facilities; additional specialized treatment; regional community reentry and specialized after-care pilot programs; an automated risk assessment and data sharing system; and radio communication upgrades and replacements.

• $82.1 million in All Funds is provided for border security operations including funding for law enforcement surge operations, Joint Operation and Intelligence Centers, the Border Security Operation Center, a Regional Emergency Operations Center and crime lab in Laredo, upgrades to Texas Task Force II in Dallas, Department of Public Safety personnel and aviation support.

The base budget includes a 5% pay hike for Texas prison guards. Tomorrow will be the real free for all when more than 400 riders (floor amendments) will be considered in what's sure to be an excruciating and grueling session. The Senate version contained more money for both prison diversion programs and guard pay.

Roundup: From the Lege to the courthouse to the jailhouse

Here are a few items that deserve Grits readers attention even if I don't have time to devote a full blog post to each topic:

Slow boating
Particularly on the House side, bills are moving more slowly in the 81st Texas Legislature than at any time in recent memory, raising the possibility that a great deal of legislation - good and bad - may just die for lack of time. See the Houston Chronicle's discussion: "Scorecard in Austin: 92 days of work, one bill." (April 15)

Big Brother rising
One critical exception to the slow pace has been the Senate's approval of an array of new police powers, cataloged by Jay Root at AP in his piece, "Expanded police powers under consideration" (April 15), including sobriety checkpoints, authorizing electronic license plate readers, and expanding the offense of "failure to identify." "We get into some real civil liberty concerns when we're allowing that broad power under detainment only," said Sen. Wendy Davis, D-Fort Worth. "I think we're opening ourselves up to some unforeseen consequences."

Backing boost for guard pay
The Beaumont Enterprise this week devoted a feature story and a staff editorial to supporting a 20% raise for Texas prison guards. According to one line officer quoted, "What I'm seeing is that the correctional system is going to collapse if we don't get that 20 percent - not 5, not 10, maybe 15 percent ... We are the only line of defense between the criminals and the public."

Banning native sage
The Senate passed legislation to ban sale of salvia divinorum, a type of sage native to Texas and commonly used among gardeners, to minors in Texas, the Austin Statesman reports. The companion bill, however, has been sitting stagnant in the House Criminal Jurisprudence Committee since early March with seemingly little momentum after its sponsor presented a video created as a spoof as part of his argumentation.

Debating bail and appointed counsel
Mark Bennett has a great post on the law and ethics surrounding judges refusing to appoint someone an attorney because they made bail, responding to comments by the Texas Fair Defense Project's Andrea Marsh that the fiery Bennett was letting judges off the hook for violating the law.

Feds want updgrades to Dallas jail health
The feds say the Dallas jail has made "remarkable" improvement in inmate health care but still needs to install an infirmary at the Lew Sterret jail that will cost taxpayers $50 million. Reported the Dallas News ("Infirmary remains issue for Dallas County jails in latest report, April 16):

Besides the lack of infirmary care, other nagging issues included a slow response to sick calls, failure to track seriously ill inmates and lack of proper maintenance, which has contributed to the fire safety problems, according to the report.

The inspectors looked at 27 sick call requests, for example, and found that 12 patients weren't seen at all.

It's still taking two to three days for inmates to receive medications, although that's an improvement over the four-day average delay found during the previous inspection.

During the last inspection, the inspectors pointed out high numbers of inmates being sent to Parkland's emergency room. That number, however, has fallen by 45 percent, indicating "better on-site services," the report said.

'Sorry' not nearly enough
Confessed kidnapper Lernondo Simmons, while sitting in jail in Dallas on new charges, apologized for committing a 1992 rape that was blamed on Patrick Waller, an innocent man later cleared through DNA evidence. Simmons, the real rapist, would probably be in prison today if they'd pursued Waller's innocence claims more vigorously. Simmons is now awaiting trial for another violent crime.

Prosecutors' delay in pursuing innocence claims were what allowed Simmons to escape justice for the 1992 offense. Reports the Dallas News: "Had Waller, now 39, been granted post-conviction DNA testing when he first asked (before Dallas County District Attorney Craig Watkins took office in 2007), the information could have been used to deny parole to Simmons and [his accomplice Byron] Bell. Simmons was paroled in 2004 for assault of a public servant; Bell, whose whereabouts are unknown, was paroled a few years later on a burglary conviction."

Did Ranger mislead judge into issuing Eldorado warrant?

It was revealed Tuesday at the Texas House Human Services Committee hearing (see Grits coverage) that a court filing today would provide more detail about the still-murky backstory of what occurred in the five days between the initial hoax phone call to a San Angelo women's shelter and the legal and political catastrophe that became the Great Eldorado Polygamist Roundup at the YFZ Ranch. Here's the initial MSM coverage:

• San Angelo Standard Times: Attorneys: Walther misled into issuing FLDS warrant
• Salt Lake Tribune: FLDS motion challenges Texas' reasons for raiding polygamous ranch
• Deseret News: FLDS challenges Texas search warrants
• AP: Sect's lawyers accuse Ranger of misleading judge
  

Brooke Adams' account in the SL Tribune is typically excellent:

in a sworn affidavit used for the first search warrant, Texas Ranger Brooks Long said Barlow was at the ranch, the motion says. Brooks also failed to disclose he had confirmed with an Arizona deputy sheriff that Barlow needed permission to leave Arizona as a condition of his probation.

In addition, Schleicher County Sheriff David Doran spoke to Barlow by telephone and confirmed he was in Arizona, not Texas.

"Like the clock that strikes thirteen, this fact alone should have called everything they had heard before into question," the motion states.

Long also "failed to even make a single telephone call to corroborate or verify this caller's information" and, despite checking, was unable to verify her claim of recent treatment at the Schleicher County Medical Center, the motion says.

After being told no "Sarah Barlow" existed, officers asked to interview all females between the ages of seven and 17 and were granted access to the ranch. That showed their intent not to "seek evidence of a special crime" but to "check evidence of any crime against the children present," the motion states.

After three days of searching, there was still no sign of "Sarah Barlow, the motion states.

"It is clear that the authorities used a hoax phone call as an excuse for staging a massively intrusive raid upon a disfavored religious group," it says.

The search of the ranch, which is bigger than some Texas cities, based on one "general" warrant "far exceeds that of any reported case in this or any other jurisdiction," it says.

"This wholesale search of an entire village, pursuant to a single warrant, is by far the most sweeping and expansive invasion of our citizens' right to privacy since our founding fathers attempted to do away with King George's 'writs of assistance' more than two hundred years ago."

It contends that the state's "omissions, misstatements, and failure to exercise the requisite diligence, protocol and expertise expected of any reasonably well-trained law enforcement officer" led to "one of the most intrusive, invasive and wide-reaching raids of a religious community in our country's history."

That's quite a ringing critique! Looks like the legal wrangling over these cases may heat back up again while the Legislature is still in session.

I've been beefing about the breadth of that search warrant since right after it was filed, so it will be interesting to see it finally, formally disputed. The Third Court of Appeals has already held the whole ranch was not a single household, so the state begins its reaction to this motion very much on the defensive.

Says the San Angelo Standard Times, "The motion covers 10 of the 12 defendants, excepting sect leader Warren Jeffs, who is facing charges in Arizona, and ranch doctor Lloyd Barlow, who faces only misdemeanor counts."

Related Grits posts:

• Bill targeting FLDS larded with unintended consequences
• Why no prosecution of false child abuse report in Great Eldorado Polygamist Roundup?
• Search warrants for polygamist compound may be invalid

State auditor: CCA needs written rules for grant oversight

The state auditor has published a new report casting light on a subject I've long thought deserved more scrutiny: Training grants made by the Texas Court of Criminal Appeals as part of the court's administrative functions. On the Dallas News' Crime Blog, Diane Jennings says:

The lengthy report is full of mind-numbing statistics, but one in particular jumps out: In 2008 a hefty portion of the money--about half--received by seven grant recipients went towards administrative expenditures, including salaries. The Texas Criminal Defense Lawyers Association spent a whopping 75 percent of their grant on administrative costs, while the Center for American and International Law spent only about 36 percent.

The report notes that a 2001 study of nonprofit organizations spent an average of 16 percent of total expenditures on administrative costs and says the Court "is ultimately responsible" for determining what is reasonable.

Let's run through the highlights. According to the SAO summary, the Court:

does not limit the amount of grant funds that can be expended on grantee administrative costs. Grantees' administrative expenditures in fiscal year 2008 ranged from 36.5 percent to 75.1 percent, with an average administrative expenditure rate of 49.5 percent across the seven grantees. The Court also should improve its financial monitoring by requiring grantees to report budget-to-actual expenditures and ensuring that audits of state and non-state funds are conducted as required by the grant provisions.

The Court also should develop written policies, procedures, and performance measures to monitor grantees' program performance. ... Without implementing performance standards and monitoring grantee performance, the Court cannot effectively ensure that grantees comply with grant agreements or use state funds efficiently.

The Court lacks formal, written policies and procedures for awarding and administering grants. While the Court ensures that grant applications considered for evaluation are substantially complete, it does not document the rationale it uses to make award decisions. In addition to $16.9 million in judicial education program grants, the Court reported that it awarded approximately $171,626 in supplemental grants during fiscal years 2007 and 2008; however, the Court did not have a written agreement to document the purposes and amounts of supplement grants awarded. As a result, the Court could not ensure that these supplemental grant funds were used as intended. Also, these supplemental grants were awarded through a noncompetitive process.

The Court's Education Committee is required by Texas Government Code, Section 56.005, to provide curriculum recommendations to the Court. However, the Court could not provide any documentation showing that the Education Committee had formally met or issued an annual report of recommendations since the committee was created in fiscal year 2004. As a result, the Court primarily relies on the grantees' curriculum committees to identify training needs of state judicial and court personnel.

Here's a list of the grants given by the Court of Criminal Appeals in 2008 and the percentage of the grant that was spent on administrative costs (from a table on pp. 8-9 of the pdf):

• Center for American and International Law $ 299,696, 36.5%
• Texas Association of Counties $489,220, 50.6%
• Texas Criminal Defense Lawyers Association $1,098,670, 75.1%
• Texas Center for the Judiciary $1,738,265, 41.7%
• Texas District and County Attorneys Association $1,798,289, 47.8%
• Texas Justice Court Training Center $1,931,037, 50.6%
• Texas Municipal Courts Education Center $2,127,274, 44.7%

Total: $9,482,451, 49.5%.

That means the Court is financing a great deal of core infrastructure for both the prosecutors' association and the state criminal defense bar! I knew those groups received grants from the court, but I'd never seen the numbers.

The prosecutors' association received $34,000 more in administrative support than TCDLA, but because they received $700,000 more overall, the defense bar's administrative percentage was higher. That's a not-insignificant amount of pork, making the CCA a big-fish funder in the small ponds inhabited by these groups.

Federal Judge: TYC firings were unconstitutional

Long-time readers will remember that, two years ago, dozens of Texas Youth Commission employees were fired when the state switched them all to at will employment in the much ballyhood SB 103. Now we learn those firings were illegal, potentially paving the way for more former employees to pursue litigation against the agency. What a mess!

No MSM coverage yet, but here's the money quote from a ruling Monday by federal district Judge Orlando Garcia in San Antonio related to Texas Youth Commission employees who were fired in Spring 2007:

It is further ORDERED and DECLARED that Section 37 of Senate Bill 103, codified in Texas Human Resources Code Sec. 61.035 (Vernon Supp. 2008), that attempted to remove the "for cause" status of Texas Youth Commission employees before the effective date of Senate Bill 103, is unlawful pursuant to provisions of the Constitution of the State of Texas and the United States of America.

The section of the bill Judge Garcia said was unconstitutional removed language that said employees could be fired "for cause" and substituted "at will" employment, including retrospectively.

It will be two years next month that dozens of employees at TYC were let go under the same provisions as the two plaintiffs in this court case, so there's still a window when more litigation may be filed now that this precedent has been set.

UPDATE: My first attempt to upload the pdf files to the web didn't work, so let's try this: Go here to download the judge's ruling and here for the plaintiffs' petition he granted. See if that works. Best I can do, apparently.

MORE: See initial coverage from the Dallas News.

Recording interrogations in best interest of law enforcement, justice

I'm headed up to the capitol this morning to testify in favor of legislation to require recording custodial police interrogations on behalf of the Innocence Project of Texas, so I thought I'd point readers to past Grits posts on the subject:

• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

The main argument being trotted out against the idea by law enforcement appears to be cost, but digital audio recording equipment has become quite cheap and given the potential costs of false convictions - not to mention extra expenses for suppression hearings, etc., made necessary by an unrecorded interrogation - the cost of relatively inexpensive recording equipment would be de minimus. These aren't like the in-car dashcams that require more sophisticated systems to operate. Requirements under this bill would be satisfied with a cheap digital recorder from Radio Shack.

Trumping the meager cost is the benefit from stronger cases, fewer suppression hearings, and protection for officers falsely accused of misconduct. If a recording exists of the entire interrogation, it may occasionally generate evidence of a false confession, but more than 9 times out of 10 (where a confession is legitimate), it would likely benefit the prosecution more than the defense.

I get the sense that much of the opposition to this idea comes more or less out of habit, not from some well-thought out policy stance. Some folks are so used to opposing every single reform suggestion that comes down the pike, they simply don't bother to look past who's proposing the idea to decide if it's a good one. In this case, as the saying goes, opponents are cutting off their nose to spite their collective face.

See also a public policy report from The Justice Project on the national trend toward recording custodial interrogations.

Bill targeting FLDS larded with unintended consequences

UPDATED

The Lege will revisit the Great Eldorado Polygamist Roundup this morning, the Austin Statesman reports:

The House Human Services Committee will meet at 10:30 a.m. in E2.016 to look at how the state handled last year’s child-welfare operation at a West Texas ranch owned by a polygamist sect. The Statesman’s Corrie MacLaggan wrote yesterday on the Postcards blog, “Testimony is expected from people invited by the panel, including Anne Heiligenstein, commissioner of the Department of Family and Protective Services; Willie Jessop, a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints; Scott McCown, executive director of the Center for Public Policy Priorities; and Kevin Dietz of Texas RioGrande Legal Aid, which represented some of the FLDS mothers. Jessop said he plans to tell lawmakers that he takes issue with Heiligenstein’s recent public comments about how she did not think the state made any mistakes in the case and that her agency would respond swiftly to any future abuse allegations.”

MacLaggan also reported, “he human services committee is also scheduled to consider a proposal by state Rep. Harvey Hilderbran, R-Kerrville, that would clarify when Child Protective Services should remove suspected perpetrators — rather than children — from a home. The proposal, a response to the FLDS case, seeks to allow a suspected perpetrator of child abuse or neglect to be removed from the home only if there is evidence that the parent who would remain at home would monitor the residence and report any attempt by the accused to return. It would also enhance criminal penalties for failing to report abuse or neglect. There is a similar measure in the Senate by Jane Nelson, R-Flower Mound. Meanwhile, a Senate panel is considering a separate measure by Nelson that would extend the statute of limitations for bigamy.”

See a discussion of Sen. Nelson's legislation here, the text of which is included in Hildebran's bill en toto.

The invited list of speakers at the Eldorado hearing seems disappointingly slanted, but not nearly as much as Rep. Hildebran's bill, for which an interested reader forwarded me a copy of the committee substitute, calling it " a Christmas Tree of mischief."

The most egregious section of the bill IMO - certainly the most mischevious - would insensibly boost the penalty for parents whose kids play hooky from school from a Class C to a Class A misdemeanor, with a second offense garnering a third degree felony charge.

Talk about unintended consequences! That won't just affect the FLDS but potentially myriad homeschoolers and many thousands of parents struggling to enforce discipline on rebellious youth. Given Texas' high dropout rates, this bill seems likely to fill the jails needlessly with parents who aren't criminals but are simply unable to force their child to go to schools they don't find relevant, useful or engaging. The bill also boosts penalties for students' non-attendance from a C to a B misdemeanor.

This is no solution to any problem that arose in the Great Eldorado Polygamist Roundup. Instead, it uses that event as an excuse for jacking up penalties for petty offenses that, in past generations, wouldn't even be considered a crime.

Similarly, nothing about this case indicates that increasing penalties for failure to report child abuse would have helped resolve the problem, but the bill boosts penalties for that crime, too. Of course, most all the allegations of abuse by Texas CPS turned out to be entirely unsubstantiated - from the initial hoax phone call that launched the raid to repeated overstatements by the agency claiming hundreds of children were abused. So if there was little if any abuse documented, there's scarce reason to think there was some widespread failure to report it.

The bill also eliminates a requirement that CPS - when seizing children without a court order - make "reasonable efforts ... with respect to preventing or eliminating the need to remove a child from the child's home or to make it possible to return a child to the child's home." Under Hildebran's proposed language, "the court may find that based on the circumstances no reasonable efforts would prevent or eliminate the need to remove a child and that the department satisfied the requirements ... even though the department made no efforts to prevent or eliminate the need to remove a child." That essentially guts the requirement that CPS make a good faith effort to keep families together.

Another section of the bill disallows parents from accompanying a seized child, but given how the FLDS kids were treated while in the state's care, this case actually argues for the opposite policy. It was unnecessary and terribly traumatic to take those young kids away from their Moms after storming their home with hundreds of armed men and forcibly removing them based on a hoax phone call. This was only a problem because of the volume and that was a mistake by the state, not something kids or their moms should be punished for.

Hildebran's bill is a laundry list of solutions looking for a problem. But the real problems with the Great Eldorado Polygamist Roundup all involved state overreach, not any deficiency in state authority. The bill boosts penalties for families - as though low penalties were somehow a barrier to achieving state enforcement goals in Eldorado (they weren't) - but does nothing to restrict CPS and in fact further empowers them to override familial rights. This is a bad bill, and a pointless one.

LIVEBLOGGING THE HEARING: I just got home from testifying at the Lege this afternoon and turned on the Health and Human Services Committee hearing (see here) just in time to hear Department of Family and Protective Services Commissioner Anne Heiligenstein say, "Given the extraordinary circumstance, I don't believe the action taken [seizing more than 400 kids] was imprudent." But Chairman Patrick Rose (a former campaign client of mine in a past life) pressed her to reconcile that defense with the Supreme Court's ruling against the actions, insisting she say whether they would do the same thing again if it happened again. She finally acquiesced that the agency would "follow the guidance of the court" in the future and evaluate each case on an individual basis. It seemed like a grudging acknowledgment.

Rose pointed out that Heiligenstein continued to define the term "household" as "the entire compound," which even she admitted "was a bit of a stretch." I'm glad the chairman picked up on that - that mis-definition was a key source of mischief in its own right throughout this fiasco.

Contradicting Heiligenstein, who claimed deceit by FLDS parents was the main reason youth couldn't be treated on a case by case basis, Kevin Dietz of Texas RioGrande Legal Aid said he was not aware that any of his clients had been accused of misrepresenting to CPS whose children were whose. He said it was clear from their first client interview that his clients all had individualized interests, backgrounds and legal issues, and that a key mistake by the department was to treat them as a group instead of as individuals. "It's just bad practice to have removed so many children based on so little evidence," he said. All but one of this FLDS children have now been returned to their parents.

Willie Jessop said there is a suppression hearing tomorrow where more information will likely come out about the hoax phone call from Rozita Swinton that set off this fiasco.

Patrick Rose asked Jessop point blank: Did you tolerate the marriage of underage girls to adult men on your ranch. Jessop wouldn't answer. "I don't live at the ranch," he said. He said he could speculate, but he didn't know. Are there underage marriages in your church, he retorted, and if so should we roundup all the children in every family in the congregation (not a quote, but the gist)? It was an unsatisfying answer to a straightforward question; it seems pretty clear there have been at least a handful of documented cases (several of which have resulted in indictments), though some of those marriages occurred outside Texas many years ago. Rose pointedly said he would respect Jessop more if he just refused to answer the question than if he claimed he did not know. Jessop replied it would be "inappropriate to speculate." "I don't believe that you don't know," Rose concluded.

Jessop did reasonably well but was a little raw, and there were a couple of questions (particularly from Rose) that he couldn't successfully dodge, though I thought he partly rehabilitated his position before he was done by emphasizing the lack of due process and the Kafka-esque position of being asked to account for people who didn't exist based on allegations that turned out to be a hoax.

Former district Judge Scott McCown said, somewhat to my surprise, said he thought no changes were needed to the Texas Family Code in light of the incident. The Family Code, he said, "is not a barrier to removing some of these kids." Maybe it's just his tone, but it seems like McCown's stance has softened somewhat since last year when he was more gung ho. "We can't look to CPS to deal with the issue of underage marriage in the FLDS community," he said. Only "vigorous criminal law enforcement" could solve the problem and CPS doesn't do that. He also said it's a question of whether the Lege would "pony up the money" to investigate and prosecute the statutes on the books.

Rep. Darby tried to get McCown to endorse Hildebran's enhancement bill (to which he's signed on as joint author), questioning whether we care enough to pay "whatever it takes" to prosecute these cases. McCown replied that Texas shouldn't pass new criminal penalties pretending that's what will solve the problem when we know in our hearts that what's really needed is a $10 million appropriation to DPS for enforcement.

Susan Hays, a college pal of mine, testified about her experience as an ad litem for a 2-year old FLDS child and conferring with other attorneys about an array of clients with all sorts of different circumstances. The state made a great mistake, she said, by not knowing a lot more about who they were dealing with. She also said that the "sins of the leadership" shouldn't be visited on the churches congregants and especially the children.

Hays said that the state made a mistake by thinking this was a parallel to the Branch Davidian catastrophe, when really the better parallel was the 1953 raid on the FLDS at Short Creek, Utah, a subject discussed here on Grits last year. "It's their Alamo," she said, and Texas just replicated the scenario for a new generation. "You've got small children who're going to grow up bragging to their grandkids that they were part of the Eldorado raid," she said, adding that Texas' approach reinforced the group's insularity and needlessly traumatized the kids.

Susan said it's true it was hard to tell who was telling the truth throughout the episode, but that CPS' "refusal to communicate with" ad litems was at least as big a source of obfuscation as FLDS-generated confusion about parentage. Ad litems can't represent their clients, she told the committee, if CPS won't tell them why they think their clients have been abused.

The hearing will continue on into the evening but I've got to cook dinner. Go here for the livestream video.

MORE (4/15): Here's the archived broadcast of the hearing.

See MSM coverage (4/15):

• San Angelo Standard Times: Live from the FLDS hearing in Austin
• Dallas News: DFPS: Biggest mistake in polygamist raid was not separating mothers from children
• Dallas News: Polygamist ranch spokesman tells legislators he doesn't know if underage girls forced to marry
• Daily Texan: Bill proposes harsher penalties for child abuse
• Austin Statesman: FLDS Home: Ranch or compound?
• Austin Statesman: Sect members get an earful
• CBS-42: FLDS spokesman tells committee what he thinks went wrong
• AP: State agency defends actions at polygamist ranch
• Texas Observer: 'Lessons learned' after polygamous ranch raid
  

Background materials on shoddy forensics

Via the Innocence Blog:

The National Academy of Sciences Committee on Identifying the Needs of the Forensic Science Community posted a wealth of forensic research and presentations on its website this week – including the complete submissions from dozens of presenters at its five public meetings.

I was particularly interested to see this presentation (pdf) by Michael Risinger, a law professor at Seton Hall University, calling for blind administration and testing for error rates in all forensic disciplines. See especially the chart on page 2 of the presentation listing error rates for common forensic techniques.

RELATED: Plain Error points to a new report from the Innocence Project of New York titled "Investigating Forensic Problems in the United States: How the Government Can Strengthen Oversight through the Coverdell Grant Program."

Related Grits posts:

• NAS Report: Many forensic disciplines prone to error
• Justice system commonly relies on shoddy forensic science
• USDOJ should embrace, not fight science-based forensics

Improving Prosecutorial Accountability

Via email:

Today, The Justice Project is pleased to announce the release of Improving Prosecutorial Accountability: A Policy Review, which analyzes prosecutorial misconduct and presents comprehensive recommendations to improve the accountability of our nation's prosecutors.

Prosecutors are arguably the most powerful figures in the criminal justice system. Because of their role, the decisions made by prosecutors invariably have an enormous impact on defendants, victims, and their respective families. However, the responsibility of a prosecutor is not to simply seek convictions, but to seek justice. This means that, in addition to convicting the guilty, the prosecutor has a duty to protect the innocent and guard the rights of the accused. But because of a dangerous and pervasive lack of prosecutorial accountability throughout the criminal justice system, prosecutorial misconduct has become a widespread problem, leading to flawed verdicts in our courtrooms and the wrongful convictions of innocent people.

Read more about The Justice Project's National Agenda

There are numerous examples of prosecutors undermining their duty to seek justice by abusing their power and committing acts of misconduct in order to secure convictions. For example:

• Last week, Federal District Court Judge Emmett Sullivan ordered a special investigation of six federal prosecutors tainted with allegations of misconduct that led Attorney General Eric Holder to dismiss the indictment against former Alaska Senator Ted Stevens.
• In February of this year, the California State Bar recommended the suspension of Santa Clara County prosecutor Benjamin Field from the practice of law for four years as a result of acts of misconduct in multiple criminal cases spanning nearly a decade.
• In June of 2007, North Carolina Durham County District Attorney Michael Nifong was disbarred for suppressing evidence of innocence and making inflammatory public statements related to the prosecution of three Duke Lacrosse players.

Unfortunately, these high profile examples of prosecutorial misconduct are not isolated incidents. The Justice Project's policy review reveals that prosecutorial abuse of power occurs with troubling regularity, and the vast majority of misconduct cases go unnoticed-prosecutors are rarely held accountable when they make egregious errors or abuse their power. Jurisdictions around the country have failed to effectively investigate or sanction prosecutors. This lack of accountability has led to widespread abuse of prosecutorial power, and a flawed and inaccurate criminal justice system.

The policy review released today explores the systemic causes of prosecutorial misconduct by using recent research, studies, and commission reports on the issue. By implementing the reforms recommended in Improving Prosecutorial Accountability: A Policy Review, states can finally ensure the level of prosecutorial accountability necessary for the fair and accurate administration of justice.

Juvie funding update

Here's an update from Ana Correa at the Texas Criminal Justice Coalition, received via email, regarding juvenile justice funding issues in the 81st Texas Legislature. Clearly from this account, the House and Senate versions of the budget radically differ and will require resolution in a conference committee. That means we won't know what's going to happen until the bitter end of session.

On my to-do list today is to edit Grits intern Tara Haelle's latest report on the House and Senate Sunset bills, so more on these subjects soon.

Status of State Juvenile Justice Funding

Vastly different pictures have emerged in the House and Senate in terms of state juvenile justice funding for the Texas Youth Commission (TYC) and the Texas Juvenile Probation Commission (TJPC).

While the House has not yet passed its final budget, the decisions made by the House Appropriations Committee will support TYC's continued reform efforts - initiated in 2007 with the passage of S.B. 103 - toward a regionalized system that delivers a continuum of quality rehabilitative services to the state's most troubled youth. In the Senate, TYC's budget was cut dramatically, with a large chunk of the cuts re-allocated to TJPC for the funding of two diversion pilot programs in Dallas and Travis Counties.

These decisions represent two different perspectives on how best to advance the ongoing juvenile justice reform effort in Texas, which will have to be ironed out in conference committee.

Quick highlights of the different budget pictures are below:

In the Senate

TYC's budget was decreased by $81 million - an almost 20% reduction in funding. This translates into:

• A reduction in TYC's number of contract bed placements from 340 in FY2009 to just 47 in FY2010 and 36 in FY2011.
  
• Closure of two TYC facilities, the West Texas State School in Pyote, and the Victory Field Correctional Academy in Vernon.
  
• A reduction in full time employees (FTEs) of 500 in FY2010 and an additional 250 in FY2011. While some of the FTE cuts will come from TYC administration, institutional staffing is also likely to be affected. The FY2010 cuts are likely to reduce TYC's ability to meet the 1:12 JCO-to-youth ratio mandated by last session's S.B. 103, while the FY2011 cuts may result in a decrease of clinical staff.

TJPC's budget was increased by $35 million - a 14% increase in funding. This translates into:

• Funding for two diversion pilot programs in Dallas and Travis Counties, which are intended to divert high-risk youth offenders, including violent youth, from commitment to TYC. An additional $18 million was placed in Article XI of the Senate budget for another diversion pilot in a 22-county Southeast Texas consortium. ( Note: Items in Article XI have not been funded, but may be considered for inclusion in the budget by conferees.)
  
• No restoration of the one-time loss of federal Title IV-E dollars incurred by juvenile probation departments during the 2008-09 biennium. This funding is typically used by juvenile probation departments to serve lower-level offenders and for non-secure placements. TJPC anticipates that this loss of federal funding will impact 122 counties statewide. Unfortunately, the additional diversion pilot funding provided by the Senate to only two counties will not offset the loss of federal Title IV-E funding. TJPC has predicted an increase in commitments to TYC of as many as 1,900 youth - who are not currently included in the Legislative Budget Board's January 2009 population projections for TYC - if this loss of federal funding is not restored by the state.

In the House

TYC's budget was decreased by approximately $20 million - a 5% reduction in funding. This translates into:

• A decrease to adjust for one-time expenditures in the 2008-2009 biennium related to S.B. 103's implementation and associated population reductions.
• A promising restructuring of the kinds of state services delivered to committed youth, including:
  • Additional capacity in regional specialized treatment facilities, including contract beds and two 48-bed TYC-operated regional facilities, which will help reduce the number of youth housed in large, remote TYC institutions.
  • A regional pilot program in a major urban area that would facilitate community re-entry and specialized aftercare using innovative, evidence-based programs.
  • Continued operation of the West Texas State School in Pyote, and the Victory Field Correctional Academy in Vernon.
  • Reauthorization of $25 million in bond funding (originally appropriated to TYC for use in the 2008-2009 biennium) to build three 48-bed facilities near metropolitan areas.

TJPC's budget was increased by $28 million - an 11% increase in funding. This translates into:

• Restoration of the one-time loss of federal Title IV-E dollars incurred by juvenile probation departments during the 2008-09 biennium. $23 million was allocated to TJPC as a one-time expense only, and an additional $11 million was placed in Article XI of the budget.
  
• Three additional FTEs were added to address increased agency responsibilities, such as abuse and neglect investigations, fiscal auditing, and computer programming.
  
• Development of a Juvenile Case Management System in conjunction with the major urban counties. This will enhance the state's ability to access information about youth in county-operated juvenile probation programs, and to identify successful juvenile probation programs that effectively address youths' rehabilitative needs, so that state funding can be targeted toward what works best.
  
• Development of an automated juvenile mental health assessment instrument to ensure that youth with mental health needs are identified and receive appropriate services, particularly when confined in county-operated secure pre- and post-adjudication facilities.
  
• Operation of a juvenile mental health facility in East Texas to provide inpatient mental health treatment services to youth who cannot be served in the community due to lack of adequate mental health resources.

Why Has TYC's Cost-Per-Day Gone Up?

Last month, an article drew attention to the increase in cost-per-day for youth in TYC institutions, from $56,553 in 2003 to $98,734 in 2008. This kind of increased cost is consistent with a system in transition, as the state strives to provide improved quality of care and programming to a smaller number of youth, in a system originally designed to serve thousands more. In order to provide additional context for the discussion about cost-per-day, TYC has provided a breakdown of the daily cost components, and an explanation for the increased costs

MORE: From the Austin Statesman, "Juvenile justice picks held up."

Deporting US citizens

Dozens, perhaps hundreds of US citizens have been deported accidentally because immigration officials at county jails disbelieved their claims of citizenship and thought they were illegal immigrants, according to AP:

Pedro Guzman has been an American citizen all his life. Yet in 2007, the 31-year-old who is mentally ill and not able to read or write — while in jail for a misdemeanor violation — signed a waiver agreeing to leave the country without a hearing. The Los Angeles native was deported to Mexico as an illegal immigrant.

For almost three months, Guzman slept in the streets, bathed in filthy rivers and ate out of trash cans while his mother scoured Tijuana, its hospitals and morgues, clutching his photo in her hand. He was finally found trying to cross the border at Calexico.

These days, back home in California, "he just changes from one second to another. His brain jumps back to when he was missing," said his brother, Michael Guzman. "We just talk to him and reassure him that everything is fine, and nobody is going to hurt him."

In a drive to crack down on illegal immigrants, the United States has locked up or thrown out dozens, probably many more, of its own citizens in the past eight years. A months-long Associated Press investigation has documented 55 such cases, on the basis of interviews, lawsuits and records obtained under the Freedom of Information Act. These citizens were detained for periods from one day to five years. Immigration lawyers say there are hundreds of such cases.

I've heard isolated complaints about this same phenomenon at Texas jails, but until now hadn't seen documentation that the problem was that widespread. Good reporting.

'Round the blogs

Check out excellent coverage of the topics routinely covered on Grits at these Texas-based blogs:

• The Back Gate
• Texas Prison Bidness
• Defending People
• Dallas Criminal Defense Lawyer Blog
• Women in Crime Ink
  
• Dallas News Crime Blog

And for those looking forward to Tuesday's hearing of the Texas House Human Services Committee regarding the state's conduct in the Great Eldorado Polygamist Roundup, Brooke Adams at The Plural Life is your go to source. Apparently they'll be hearing invited testimony only.

A "scent lineup"? Rover in the witness box

Erroneous eyewitness testimony and the makeup of lineups and photo arrays have been the subject of much discussion this spring as key contributors to false convictions, which makes me wonder how high the error rate might be for a "scent lineup," particularly when the witness in question is a dog?

To say the least, that would make cross-examination more difficult.

At the Texas prosecutors' user forum, we find a discussion of "scent lineups", including case law on their legality, begun by a commenter from Bryan:

My department is researching "police" bloodhounds, specifically the use of scent evidence lineups in criminal cases. If anyone knows where I can find case law and/or citations on this topic it would be greatly appreciated. Personal opinions on this topic are welcome too.

An ADA from Parker County chimed in with some personal background:

As an intern in the Fort Bend County DA's office, i got to write the appellate brief on Marcus Omar Winston v. State. 78 S.W. 3d 522. At the time, Texas had very little case law about scent hounds that were not drug dogs and as such, much of my research involved out of state case law. The Houston Court published the opinion and its holding is still good law.

Discussion on the string centered around Deputy Keith Pikett out of the Bend County Sheriffs Office. I'd not heard of Mr. Pikett's dogs, but a quick Google found they've earned some measure of regional renown.

They've also drawn litigation from those who question whether it's Pikett or the dogs doing the leading. A judge in January refused to dismiss Pikett from civil litigation that alleges he led his dogs to a suspect in Victoria by re-scenting them near a location targeted by local police. The lawsuit accuses Pikett and the Victoria PD of using "contrived and unreliable methods ... to create evidence" in a murder case.

Looking around for scientific evaluations of dog-scent evidence, I didn't find much. Here's a description of a "scent lineup" involving Pikett's dogs from the Austin Statesman a couple of years ago (5/15/07):

A police officer went to [defendant Reginal] James’ jail cell and lightly touched his skin with a gauze pad. Then Hawthorne called Pikett and told him he needed to see him soon.

The detective took the sample from James in a Ziploc bag and started the three-hour drive to meet with Pikett. He also took four other gauze pads that had been wiped on the woman’s bed, her ring, her dresser and a doorway.

In the lineup, the dogs’ job was to see if the samples from the crime scene matched the sample from James.

The lineup consisted of six cans about 10 feet apart — one had a sample from James, and five contained gauze with the scents of people unrelated to the case.

The dogs were then given the scent from one of the crime scene samples and went to the cans to see if there was a match. The process was repeated for each sample from the crime scene.

Both dogs — Quincy and James Bond — matched James’ scent to the crime scene in all four tests.

What little research-based analysis I could find online did not support dog-scent evidence having a scientific basis, though Texas courts appear to allow it. This paper from 1999 concluded that:

Canine identification of human scent does not yet have a proper scientific foundation ... however, such expertise should not be called junk science" in general.

The method has been introduced into trial proceedings too early, by overly hasty police practitioners which have caused miscarriages of justice. Moreover, there have been no field studies. ... In this situation the criteria of "scientific evidence" like those in Daubert, are of great importance. ... After all, nobody should be convicted solely on the basis of a dog wagging its tail.

Interesting stuff - I'd never heard of "scent lineup" before and wonder what is the real-world error rate and to what extent the technique would hold up to scientific scrutiny?

RELATED: From Fortune Magazine, "Sit, Stay, Testify!"

MORE: In the comments, a reader suggests looking at the Wikipedia entry for "Clever Hans," and indeed it appears to be on point. The entry begins:

Clever Hans (in German, der Kluge Hans) was a horse that was claimed to have been able to perform arithmetic and other intellectual tasks.

After formal investigation in 1907, psychologist Oskar Pfungst demonstrated that the horse was not actually performing these mental tasks, but was watching the reaction of his human observers. Pfungst discovered this artifact in the research methodology, wherein the horse was responding directly to involuntary cues in the body language of the human trainer, who had the faculties to solve each problem. The trainer was entirely unaware that he was providing such cues.^[1]

In honour of Pfungst's study, the anomalous artifact has since been referred to as the Clever Hans effect and has continued to be important knowledge in the observer-expectancy effect and later studies in animal cognition.

For these reasons, blind administration would be critical for "scent lineups" to be valid. If the dog handler knows ahead of time which choice contains the scent of the suspect, it would be easy for dogs to pick up on nonverbal cues - like Clever Hans did with his trainer - instead of reacting solely to a similar scent. And since the dog can't be cross examined, no one can know why the animal made the choices it did. This is poor evidence, particularly if used without blind administration.

Johnny Sutton: He gone. More US Attorney replacement gossip

A little more Texas US Attorney replacement news:

US Attorney Johnny Sutton of Texas' Western District - more famous now for prosecuting two Border Patrol agents who shot a drug smuggler than for his days as a UT-Austin baseball great - has resigned. Three names have been forwarded to President Obama by the Democratic Congressional delegation for possible replacements, according to the Austin Statesman:

Sutton declined to disclose his plans, but as a GOP appointee in a new Democratic administration, his resignation was no surprise. Potential replacements — recently whittled down to three candidates, including Travis County Attorney David Escamilla — have been jockeying to replace Sutton since the early days of Obama's victory in November.

The names of Escamilla and two San Antonio lawyers were recently submitted to the White House by the Texas congressional delegation, led by Democratic Rep. Lloyd Doggett of Austin, as potential replacements for Sutton, a Democrat familiar with the selection process said Thursday. ...

The other names sent to the Obama administration, the Democratic source said, were Michael Bernard, the city attorney for San Antonio, and Michael McCrum, a private San Antonio lawyer who spent most of the 1990s in the U.S. attorney's office as a prosecutor and chief of the major crimes unit in the San Antonio division.

Bernard, who was on the dais during a San Antonio City Council meeting Thursday night, was not available for comment. An after-hours message left for McCrum at his office with the Thompson & Knight law firm was not returned.

I'd written earlier that I didn't know much about Michael McCrum, after which the man himself sent me a nice note giving more details about his background. I've uploaded the text of McCrum's email into a Google document which you can view here. (Sorry, Mike, for not getting that out sooner.)

Meanwhile, in Texas' Eastern District, the Dallas News reports that:

Becky Gregory is stepping down as U.S. Attorney for the Eastern District of Texas, taking a job as senior counsel with the Texas attorney general's office.

Gregory's departure as chief federal prosecutor for the swath of Texas stretching from Plano to Beaumont is effective April 30. ...

Gregory's top assistant, Tammy Reno, will likely be chosen as acting U.S. Attorney until President Barack Obama picks a permanent replacement. His choice must be approved by the U.S. Senate.

In the Northern District, reports Gromer Jeffers, Jr., at the Dallas News:

Based on several conversations with Johnson, I believe she's supporting little-known Dallas civil attorney Roger Williams.

Democrats in the know consider Williams the No. 1 contender and say his name is bound for the White House.

I'm told that there are possibly two other names under consideration, including federal prosecutor Sarah Saldana and Dallas County Criminal Court Judge Mike Snipes.

I've seen no word on the Southern District slot beyond Mary Flood's reporting for the Houston Chronicle last month.

As always, leave additional rumormongering in the comments.

Massive judgment upheld against private prison over inmate murder

Everybody from Texas Prison Bidness to the New York Times is oohing and aahing that the 13th Texas Court of Appeals approved a $42.5 million judgment against the Geo Group (formerly Wackenhut), a private prison contractor over a murder in a South Texas Prison, for failing to protect inmates under their care. According to the opinion (pdf):

This case involves the horrific and gruesome death of Gregorio de la Rosa, Jr. (“Gregorio”). Gregorio, an honorably discharged former National Guardsman, was serving a six-month sentence at a prison operated by Wackenhut Corrections Corporation for possession of less than 1/4 grams of cocaine. A few days before his expected release, Gregorio was beaten to death by two other inmates using a lock tied to a sock, while Wackenhut’s officers stood by and watched and Wackenhut’s wardens smirked and laughed.

See other Grits posts related to the Geo Group:

• Pecos prison dreams up in smoke
• Whistleblower alleges document fraud at Geo-run federal prison
• Revolving door at TDCJ: Give a contract, get a cushy job
• Geo lobby pressure inspires hearing on private prisons; what should they discuss?
  
• Idaho inmates housed in squalid conditions in Texas at Geo facility
• Scandals involving Idaho inmates in Texas Geo prisons
• Suicide aftermath reveals squalor at private rural Texas prison
• Mother of deceased inmate sues over Texas Geo unit conditions
• Rosy financial outlook for Geo, or will debt and scandals be its undoing?
  
• Meet the Geo Group: Texas' largest private prison contractor

What's wrong with fusion centers?

Bill Baumbach at the Collin County Observer has authored a must-read post titled, "What's wrong with the North Texas Fusion Center?" - see particularly the excellent linkfest at the end.

MORE: From my pal Forrest Wilder at the Texas Observer.

Related Grits coverage:

• Fusion centers in Texas: What we have here is a failure to communicate
• Fusion centers might be scary if they actually worked
• Biometrics slope got slippery awfully quick

Values debate behind DWI checkpoint vote crosses party lines

Last week's record vote in the Texas Senate on SB 298 authorizing police to employ DWI checkpoints, a bill discussed here, demonstrated an interesting bipartisan breakdown:

The motion prevailed by the following vote: Yeas 20, Nays 10.

Yeas: Averitt, Carona, Davis, Duncan, Ellis (D), Fraser, Harris, Huffman, Lucio (D), Nelson, Nichols, Patrick, Seliger, Shapiro, Shapleigh (D), Van de Putte (D), Watson (D), Wentworth, West (D), Zaffirini (D).

Nays: Eltife, Estes, Gallegos (D), Hegar, Hinojosa (D), Jackson, Ogden, Uresti (D), Whitmire (D), Williams.

Absent: Deuell.

You'll rarely find a more thoroughly bipartisan split than that on a vote in the Texas Senate - both among aye and nay votes (under the 2/3 rule, that's one shy of having enough votes to block the bill). What's more, the motive of those conservatives voting with the "Nays" appears to be fundamentally civil libertarian. According to the Montgomery County Courier:

Sen. Tommy Williams, R-The Woodlands, an advocate of DWI laws, voted against Senate Bill 298.

“I do not believe that we live in a country where we should have police pulling over people who are law-abiding citizens with no probable cause,” Williams said Friday. “This is one of those civil liberties issues.”

Rep. Rob Eissler predicted the legislation would "have a rougher time" in the House, where it's been assigned to the Public Safety Committee. That may be true; I have no way to predict. But I'll betcha it's also true that votes in the lower chamber don't break around party lines on this bill any more than was the case in the Senate, though perhaps the pro-personal liberties faction will be a little more robust.

See a related editorial from the Brazosport Facts.

Bigamy, Integrity, Identity debated in senate committee

While I was busy elswhere on Tuesday, the Senate Criminal Justice Committee approved a number of bills worth mentioning at their weekly meeting (see video of the hearing here):

Polygamist Roundup Fallout: Enabling Bigamy Prosecutions
No testimony at all, for or against, accompanied Sen. Jane Nelson's legislation SB 787 extending the statute of limitations for bigamy from 3-7 years, and 10 years after the 18th birthday if one of the partners is a minor. Sen. Nelson particularly cited the Great Eldorado Polygamist Roundup as spurring her desire to change the law. She said she was concerned about "minors forced into polygamous situations," but of course the bigger issue arises with minors of legal marrying age who choose those relationships. They have broken the law, yes, but how long should those involved be criminally liable? Why does the statute of limitations on this crime, in particular, deserve extending beyond other offenses?

This legislation seems premature to me - a half-cocked, git-tuff response to a lingering social conflict between church and state. In many ways it mirrors the ham-fisted approach by law enforcement when they first invaded the ranch looking for a Waco-style confrontation.

Why not see what if anything prosecutors can prove under the current laws before clamoring for tuffer ones? They went through all the marriage and lineage-related documents at the YFZ Ranch, so if it occurred they should be able to prove it. Why not wait to see what happens in those cases and evaluate the situation afterward?

Not an "Integrity Unit," but still a good idea
Sen. John Carona amended his SB 388 to create a "Public Corruption Unit" within the Texas Rangers instead of a "Law Enforcement Integrity Unit" as the bill was originally drafted. (See prior Grits posts here, here, and here, plus coverage from the Houston Chronicle. Discussion of the bill begins at the 45:40 mark.) The bill was also changed to disallow the unit from investigating administrative violations.

In laying out the bill, Carona's main focus was on law-enforcement corruption related to drug cartels. His goal, he said, is not to accuse Texas law enforcement of being particularly corrupt but to "ramp up for the greater threat ahead" from Plata o Plomo style corruption/intimidation of police.

Ana Correa of the Texas Criminal Justice Coalition saidthe bill isn't anti-law enforcement but "quite the opposite," because most good cops don't want their ranks sullied by criminals who're collaborating with those they should be trying to arrest.

Even Tom Gaylor of the Texas Municipal Police Association admitted it's "not the most comfortable position" to oppose the bill, but he worried in particular about creating a unit whose sole "performance measure" would be the number of police officer scalps they'd taken over corruption beefs.

In making his "performance measures" critique, Gaylor actually compared the agency to the old drug task force system, where drug units measured effectiveness based on higher arrest and seizure rates. It was an interesting argument, but Sen. Juan Hinojosa pointed out that no such performance measures were included in the bill.

Personally I don't think they're going to discover a shortage of cases to investigate and if DPS can't figure out the right performance measures for their employees, that's a question to be addressed at the agency rulemaking level. Hinojosa's right that the current bill doesn't speak to the issue one way or the other.

Identify yourself or go to jail
Finally, the committee approved a bill, SB 1175, that would allow police to give a Class C ticket for "failure to identify" when they detain a suspect. (Discussion of the bill begins at the 1:32:00 mark.) Currently, Texans don't have to identify themselves unless they're actually arrested, and it's not a crime if you don't do so. In practice, of course, police can't write a ticket without the identifying information, so this would give them cause to arrest you and cart you off to jail (under authority affirmed by the US Supreme Court in Atwater v. Lago Vista, a Texas case).

What kind of situations are we talking about? Under what circumstances might you be "detained" when police have no cause to arrest you? The examples given were things like "taking pictures in front of a nuclear power plant," but I think the new power would be used more widely than that, and mostly in non-terrorism related cases.

I wrote about a situation last year where I was detained on the street for, essentially, "babysitting while white." Some busybody called 911 because they saw me walking down the street with a two-year old of a different race. Three police cars were sent to detain and question me over this grave matter. That was a formal "detention" and Sen. Patrick's statute would have applied. More than a few commenters were offended that I wasn't more cooperative with police - though I did give my name and address when asked, I refused to answer detailed or personal questions. I thought a lot afterward about why I reacted the way I did. Mostly it's because the officer precisely didn'task for my name at first, but instead asked a series of questions aimed at determining whether I was some sort of child molester or kidnapper.

Sen. Whitmire asked why any law abiding citizen would refuse to identify themselves, and while I can't speak for others, I know why I wouldn't answer questions that day. As I said in reply to a commenter in that post, "Talking to cops who want to investigate you for false allegations of sex crimes has many potential negatives that simply refusing to speak to them wholly avoids." When the conversation starts out with an accusation, it's wholly justified and probably wise from the perpective of a potential defendant to not give police any information at all.

Whitmire himself identified another reason someone might not want to tell police who they were - if they were having an affair or some other "domestic situation." There are many possible scenarios where someone might not want their spouse, their job, etc., to know their whereabouts, but that wouldn't imply a crime was committed. The point is, in a free society, that person has free will to make bad choices as long as they don't harm others or violate the law. "None of your business" is still a valid response.

To demand, "if you don't have cause to arrest me, let me go" IMO is a reasonable exercise of one's rights and shouldn't require subjecting yourself to a check in the warrants database, which is the main thing this is really about at the end of the day. With more than 10% of adult Texans having outstanding traffic warrants, every time someone walks away without running them through the system, police miss a 10% chance they'll owe money that can be leveraged from them with a trip to the jail.

This is not a slippery slope toward a police state but a straight chute. I've joked before how, during the Cold War, we used to consider it the height of totalitarianism that Communist police might stop an average citizen on the street, demand to see their papers, and arrest them if they didn't comply. But that's exactly the kind of power Sen. Patrick's legislation would give police in Texas: Identify yourself or go to jail. "Can I see your papers, comrade?" That's unnecessary. The law's just fine like it is.

Odds and Ends

Just a few odds and ends I'd blog about if I had more time.

• Innocence Commission gets nod from House committee.

• The blog Uncovering Mexico says 'adios' after Cox Newspapers shut down its Mexico City and other foreign bureaus. See Jeremy Schwartz's excellent final post.

• The two faces of US drug policy under Obama: Treat drugs as a war in Mexico and a health problem at home.

• The Christian argument for needle exchange.

• DEA Agent Manual notes on managing informants.

• Proximo at Dallas Sidebar has been posting more regularly lately.

• Housing key to confronting the chronically homeless, mentally ill in Dallas.

National restorative justice conference coming to San Antone

From the Dallas News Crime Blog:

Those looking for an alternative to the 'lock 'em up and throw away the key' approach to criminal justice, might want to attend the second national conference on restorative justice. The University of Texas at San Antonio is hosting the conference May 13-15 and officials are expecting attendees from 10 different countries. Co-sponsors of the conference are an eclectic bunch, including everyone from School of Social Work at the University of Texas at Austin and St. Mary's University School of Law to the Baptist General Convention of Texas and the United Methodist Church. Here's the link to more information.

Go here for links to Grits coverage of the 2007 national restorative justice conference.

Timothy Cole: Exonerated

In what he said was probably the "most important opinion of my judicial career," Judge Charlie Baird yesterday formally, posthumously exonerated Timothy Cole in a 16-page ruling in front of a bank of reporters and TV cameras. (See the full opinion.)

Baird concluded that "the faulty work of the police and the misidentification produced by it was the primary reason why Tim Cole was wrongly convicted." But he expressed equal frustration with the courts for failing to rectify the wrong:

From the day he was falsely convicted Mr. Cole asserted his innocence. Through years of appeals and later effort, he told anyone who would listen that he had not committed the crime.

Court officials did not listen. His appeals and writs were routinely denied and his pleas were ignored.

Worse, however, was the attitude of the courts to [the actual rapist Jerry] Johnson’s claim of guilt. As early as 1995- four years before Tim Cole died- Johnson tried to clear Tim Cole and admit to the rape of Michelle Mallin. His letters were ignored, set aside, and thrown away until one was received by the family of Tim Cole and the Innocence Project of Texas.

Up until that time, no official of the state had conducted any sort of investigation into the innocence of Tim Cole despite repeated pleas to do so.

The opinion also suggested that similar, future such situations might be prevented if lawmakers at the Lege approve legislation "mandating the use of fair practices in eyewitness identification procedures," improving access to the courts for innocence claims, and adequately compensating the falsely convicted, including "their survivors" in cases like Tim Cole's. Read the whole opinion, which I've uploaded onto a Google document.

Before the hearing, I had the pleasure of going to lunch with Cole's family and the crime victim, Michelle Mallin, who had come in from Fort Worth and from the coast, respectively, for the event. While we were waiting for our food, a fellow at the next table was looking on intently. I paid little attention until he stood up and came to present two lovely drawings he'd done - one of the members of Tim Cole's family who were at the table and one of Mallin and her husband, both with poetic inscriptions. He'd recognized who they were - perhaps overhearing our conversation - and spat out the sketches completely on the fly. Cole's nieces and nephews were especially delighted at the gesture. A cool, very Austin moment.

Today, Cole's mother and brother will be meeting with Governor Rick Perry about Timothy's case to request a posthumous pardon.

Check out coverage from AP, the Lubbock Avalanche Journal, the Austin Statesman, the Dallas News, and the Fort Worth Star Telegram.

Arson cases fueling innocence debates

The Texas Observer last week took on a topic discussed frequently on this blog - arson investigations based on debunked forensics. Examining a 2004 case, Dave Mann writes:

Florida-based John Lentini, one of the best-known fire investigators in the nation, agrees. “What we had was a bunch of guys who claim to be expert fire investigators telling a jury that they can see multiple origins,” Lentini says. “Quite frankly, I couldn’t see that.” The investigation of the Lone Star Guns fire was typical, he says. “It’s an appealing notion that you can calculate multiple points of origin. This school of thought hasn’t been validated, and it leads to false convictions.”

In that case:

Two of the leading arson experts in the country believe the fire at Lone Star Guns was accidental. They say it had a single point of origin, sparked by a frayed electric cord found at the scene, and was spread by a case of aerosol cans sitting nearby. The cans were filled with highly flammable gun cleaner. When aerosol cans explode, they can act like blowtorches, spewing flaming liquid all over. These experts say the ATF agents, using sloppy methods, mistook an aerosol-can explosion for a three-point-of-origin fire.

“Spray cans can create the illusion of multiple origins,” says Gerald Hurst, an arson and explosives expert who lives in Austin. “Arson investigation always has one basic tenet. You have to eliminate all reasonable natural and accidental causes of the origins of the fire.” In Severns’ case, “There is no way in hell you can eliminate those spray cans.” ...

Over the past 15 years, many unscientific assumptions about how fire spreads—inherited knowledge passed from one generation of investigators to another—have turned out to be wrong. Using newer methods, Hurst has helped exonerate dozens of people wrongly convicted of arson, including two infamous cases in Texas, and has helped save several defendants from the death chamber. He believes [Curtis] Severns was railroaded. As Hurst put it at Severns’ 2006 trial in Sherman when asked how the fire spread, “If that’s not a spray can, I’m a monkey’s uncle.”

Read the whole thing and watch a video demonstration by the ATF of what happens when aerosol cans burn - evidence that contradicts "expert" forensic testimony put on by the prosecution at trial.

See also an Innocence Project of Texas fact sheet about good legislation that would help inmates convicted based on now-discredited forensics, particularly arson, get back into court via post-conviction writs.

Related Grits posts:

• Many arson convictions based on invalid science
• Arson convictions may be next venue for innocence claims
• College to develop screening processes for vetting old arson cases for bad forensic science
• Forensic Science Commission to investigate faulty forensics in Cameron Willingham case
• Improving access to post-conviction writs for junk science
  

Final chapter of Tim Cole saga written today

I'll be missing the Texas Senate Criminal Justice Committee meeting this afternoon to head to the Travis County Courthouse for the unveiling of Judge Charlie Baird's opinion on the Timothy Cole posthumous exoneration. (See AP's coverage.)

This is the final chapter of an epic false-conviction story that first began more than 20 years ago with a false eyewitness ID in Lubbock. The victim in that case who misidentified Cole will be in town for the hearing along with Cole's family, with whom she has reconciled.

Speaking of exonerations, I join the national Innocence Project's blog in congratulating Brandon Moon on yesterday's fourth anniversary of his exoneration. I covered one of Brandon's first public appearances after he got out on this blog at a Senate Criminal Justice Commmittee hearing in Houston, and just saw him a couple of weeks ago, also in H-Town at an Innocence Network conference. He's living in Missouri and his website is Exoneree.net.

Perhaps as evidence for how the increasingly long string of DNA exonerations has altered the discussion about the justice system in America, both my word processing and blog software fail to recognize the plural of the word "exoneree," as though such a rarity would never come in large enough numbers to add an "s" on the end. Ditto for the word "exoneration" - Blogger says it's misspelled if I write about multiples of them.

These days, though, we talk about DNA exonerees in terms of volume, with more than 200 nationally and 39 in Texas - 19 in Dallas County alone, mostly because they kept old forensic evidence that was unavailable for testing elsewhere. And we know that the same errors that led to exonerations in these cases were likely made in many more where exculpatory DNA evidence was unavailable.

Read more about Brandon Moon, Timothy Cole, and all Texas' other exonerees in an excellent recent report from the Justice Project titled, "Convicting the Innocent: Texas Justice Derailed."

Sharon Keller Show postponed till August

Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals won't have her removal hearing until August 17, it was announced yesterday, which means the circus won't be in town until after the Legislature has packed up and gone, barring unthinkable (and yet widely contemplated) special sessions over the summer.

Her high-dollar lawyer says she'll fight it out to the end, though, against the complaint first brought by Keller's court colleague, Judge Cheryl Johnson, so it should be a good show when it finally comes to town. Bring popcorn.

See related coverage from the ABA Journal, AmericaBlog, the Stand Down Project, Texas Watchdog, and Mark Bennett.

Debating tobacco prohibition for 18 year olds

Over at the Lone Star Times, David Jennings offered a thoughtful reaction to SB 1049 by Uresti, legislation with bipartisan support that would raise the legal age to purchase tobacco from 18-19, concluding:

Lots of questions on this one. The first one being the most basic, is it “right” to tell an 18 year old that he/she is not old enough to make a decision about tobacco? And if it is “right”, why not go all the way to 21?

Texas youth can drive and get married at 16 with parental consent, but can't legally have sex outside of marriage until they're 17. At 17 they can be prosecuted as felons and join the military with parental consent. At 17 and 18, respectively, they can get married and joint the military without parental consent. At 18 they can smoke, though Uresti's bill would increase that to 19. At 21 they can drink.

This array of age criteria will inevitably seem unfair to youth, teaching the implicit lesson that rules are arbitrary, pointless, and something they can reasonably ignore, as they see their peers doing without significant penalty. (As an aside: Don't you find it odd that Texas law would prefer you were married before subjecting you to all the various vices later in life that might undermine your marriage?)

Indeed, parents today are few and far between who can credibly lecture their kids about teen drinking, smoking, etc., without just a whiff of hypocrisy because they did the same thing - something that I'd bet dollars to donuts is true of most senators who voted for the bill. Drinking and smoking are both a significant part of American culture, for good or ill, and have been since the founding of the republic. Jennings quotes a youth who believes that extending the ban on tobacco will only add to its mystique.

For me, I've always thought the key age threshold should be when the state begins to hold you criminally culpable as an adult, which in Texas is seventeen. At that point you've assumed the full responsibilities of adult citizenship, and they should give you all the rights.

If there's some argument that youths' mental faculties aren't fully developed enough to exercise their rights, then it's unjust to ask them to bear the full burden of adult responsibility in criminal court. Whatever threshold you think is right for intoxicants, tobacco, etc., much less military service, I think should be the same as for criminal culpability - be it 17, 18, 19 or 21 - wherever you want to draw the line distinguishing juveniles from adults, it should be the same for everything.

Penalty hikes represent failure of imagination

Here's a thought for the day while I'm busy at the capitol this morning - something I wrote in reaction to a blog commenter here about the effectiveness of increasing criminal penalties as social policy:

Penalty enhancements almost always reflect a lack of imagination about other ways to influence human behavior. Enhancing current penalties should be a last resort since it's among the least effective approaches - once something is illegal, making it more illegal won't reduce the number of people who do it much. Instead, penalty hikes are usually the first thing legislators want to do, even though by definition it's an admission that the same strategy (criminalizing the behavior) failed to solve the problem in the first place.

Discuss.

Was allegedly corrupt El Paso judge part of broader conspiracy?

Speaking of drug cartels, here's a high-profile judicial corruption that sounds like something you'd more readily expect on the Mexican side of the river:

A newly elected felony District Judge in El Paso, Manuel Barraza, was arrested this week for allegedly dismissing or offering to dismiss drug cases in exchange for money and sexual favors. According to the El Paso Times ("District Judge Manuel Barraza charged with bribery," April 3):

In just three months on the bench, the indictment said, Barraza sought bribes from women and solicited a bribe from an undercover female agent, who helped the FBI build the case against him.

Barraza's encounter with the undercover agent occurred Feb. 5, according to the indictment. He allegedly promised to intervene in a felony case filed against her friend. Barraza also said he would transfer the case to his court if the woman had sex with him, the indictment stated.

Barraza allegedly gave her the name of a lawyer that she should hire. Then the law yer, not identified in the indictment, was to request that the case be transferred to Barraza's court.

The criminal case was never moved to Barraza's docket, records show.

Because of Barraza's immediate suspension, his caseload will have to be divided among other judges.

Under Texas law, the State Commission on Judicial Conduct may suspend a judge from office immediately upon his indictment. Barraza has 30 days to appeal.

The El Paso DA's office is reviewing dismissals in about 100 drug cases disposed of by Barraza during his three months on the bench. (Thanks to reader Matthew Venhaus for pointing out the El Paso Times misreported that Barraza dismissed 100 drug cases during that time. Oops!)

The local website, Newspaper Tree, wonders why the US Attorney instead of the local DA is prosecuting the cases, but that's a pretty typical result in a federal corruption investigation.

More concerning to me is the possibility that this isn't just a case of personal malfeasance, but that Barrraza was put in this position by individuals associated with drug smugglers to benefit from his corruption. The feds should be checking into his campaign supporters in addition to Barraza's own finances to discover whether this was merely a case of personal weakness and greed, or a full-blown conspiracy by drug smugglers to knowingly elect a corrupt district judge.

UPDATE: Newspaper Tree has a copy of the indictment (pdf).

Related Grits posts:

• El Paso flooded with drugs for five years while authorities watched
• FBI: Border corruption increasing on the US side
• Cartel corrupted top FBI official in El Paso
• What do we know about US-side cartel infrastructure?

Resources on Mexican drug war

A few items for those following topics related to combating Mexican drug cartels:

• See this detailed press release listing all US Department of Justice assets being used to combat Mexican drug cartels.

• The Washington Post has begun a year-long series focused on the Mexican drug war that has its own home page.

• If you habla español, the Post series identified LaPolaka.com as Ciudad Juarez's leading political blog. The writer has fled to El Paso and now publishes the blog from there.

RELATED: Obama's Mexico policy depressingly familiar.

Enhancing crustacean-related crime

I've frequently made fun of the fact that Texas has labeled 2,324 separate acts "felonies," including eleven felonies involving oysters. As if on cue, then, Sen. Mike Jackson this session has proposed another oyster-related enhancement, this time from a Class B to a Class A misdemeanor in the Parks and Wildlife Code for repeat offenders who take oysters from restricted areas. SB 2379 will be heard in Monday's Senate Agriculture and Rural Affairs Committee.

The wag who pointed this out to me wondered, "What do you call an enhancement for oyster crimes? A Tabasco bill? A horseradish bill? This is ridiculous. It's enough to put me off oysters altogether." I replied that since this is "only a misdemeanor enhancement. I suspect Mike Jackson is soft on oyster crime."

See related Grits posts:

• Can you think of eleven different felonies you can commit with an oyster?
• Oyster-related crime and its absurdist consequences
• Why is the solution to every social problem more cops, courts and punishments?

Abolishing, merging TYC, juvie probation, sort of

This, my friends, is why God created interns. Here's a slightly edited report on yesterday's House Corrections Committee hearing on TYC-TJPC Sunset legislation, filed by Tara Haelle, a grad student who's helping out the blog this session covering juvenile justice legislation that otherwise would fall by the wayside. As always, none of the opinions expressed here in any way represent those of UT, the LBJ School, her teacher, nor anybody but the writer and editor. Feel free to congratulate Tara in the comments, btw: She's a new bride.

Thursday’s Sunset hearing on House Corrections firmly established that a full-blown Texas Youth Commission - Juvenile Probation Commission merger is off the table, but the new Sunset draft does not keep TYC and TJPC completely independent either. Instead the bill, the latest draft of which is not yet online, proposes creating a 13-member Texas Juvenile Justice Board who would be “responsible for overseeing and coordinating the functions and operations of the Texas Youth Commission and the Texas Juvenile Probation Commission.” This new board would be “the policy-making body for the Texas Youth Commission and the Texas Juvenile Probation Commission and is not a separate state agency.”

In addition, the new bill requires the executive directors of TYC and TJPC to co-preside over a new Juvenile Justice Improvement Plan Committee, which will create a five-year plan for improving the juvenile justice system in Texas, as well as developing a process for sharing information among TYC, TJPC, local probation departments and other state agencies that serve youth, including the Department of Family and Protective Services, the Dept of State Health Services, the Health and Human Services Commission, and TEA.

Also required as part of the plan are goals for reserving state facilities as much as possible for only higher risk juveniles, finding more alternatives to secure placement and keeping juveniles as close to home as possible.

The last big part of the bill is the establishment of community pilot programs. Unlike the county pilot programs proposed in the Senate right now, this bill would expand TJPC’s purse, providing funding for competitive grants for local programs. Although Dallas, Travis and the Southeast counties have already come up with plans, offering competitive grants gives other counties more time to develop program proposals that they weren’t able to draw up in just the first month of the session. Among the grant conditions are reduced commitment targets, specific performance measures and restrictions on use of grant money.

What’s most remarkable about the Sunset hearing was that, so far, almost everyone seemed to like the new draft. Cherie Townsend and Vicki Spriggs both expressed support of this draft, and nearly everyone who testified supported at least some parts of the bill. Today’s work group meeting will hash out some of the issues brought up in testimony:

• Some people still want to see the agencies remain completely separate, so tomorrow’s meeting will likely determine whether the new board will exist or if the two agencies remain completely independent.

• What agencies will be included as part of the juvenile justice improvement plan? The committee needs to determine the extent to which the plan might involve TEA, MHMR, CPS, and other programs that directly affect youth.

• Who will be on the governing board? Some testified that there are people missing who ought to be a part of the board. The bill currently lists one juvenile court prosecutor, but not a defense attorney. Terri Hodge suggested appointing a youth to the committee.

• The bill allows counties applying to participate in the proposed pilot programs to contract services with “nonprofit, for-profit, or faith-based organizations.” Southwest Key testified against authorizing county pilots to use for-profit juvenile prisons, questioning whether they would operate in the best interest of the juveniles.

By the end of Friday’s work session, the Sunset substitute bill will likely be ready a vote at next week’s Corrections Committee meeting.

RELATED: See an initial MSM report from KXAN's Jenny Hoff on the hearing.

Where are champions for open government in online era?

Echoing concerns I'd raised about limiting information available on elected judges, the Dallas News' Reese Dunklin says legislation making personal information about state employees closed records limits accountability and would have prevented the News' investigative journalism on the Texas Youth Commission in 2007.

There really needs to be more focused debate on transparency and open government in the online era, or in the current political environment we're going to lose the Texas Public Information Act as a practical matter over the next few sessions. It's already a shadow of its former self - particularly on law enforcement records - and is suffering a slow death by a thousand cuts. Every two years, it seems like a lot more bills are filed to close records than to make government more transparent.

For all of my adult life, the only powerful constituency for open records at the Texas capitol has been the mainstream media themselves - particularly the newspaper and broadcasters' associations. (And mostly, it should be said, they fought and lost.) But the decline in newspapers seems destined to upset whatever balance previously existed on the issue, and nobody is actively filling that gap.

So-called "grass roots" media like blogs don't tend to have the money to pay for significant open records requests, nor the training how to use them. And they certainly don't pay lobbyists to fight for open records at the capitol the way industry associations for the MSM do.

In the online world, the skillsets of a paper-trail dogging investigative reporter from years past seem a little scary. But that doesn't mean open records and investigative journalism aren't just as important to a functioning democracy as they were a decade ago, or in 1973 when the Texas Open Records Act was created. They just have fewer champions now in the political arena.

MORE: See more from Reese Dunklin on the topic.

Romeo and Juliet, Abraham and Isaac: Who to criminalize?

While waiting yesterday in the House Criminal Jurisprudence Committee hearing for a late bill on which I was testifying, Rep. Garnet Coleman brought forward two very interesting pieces of legislation worthy of note:

HB 3564: Relating to the prosecution of certain conduct constituting the offense of indecency with a child.

HB 2973: Relating to the insanity defense in a criminal case.

HB 3564 would expand the "Romeo and Juliet" defense (consensual sexual partners are within three years of one another's age) to indecency with a child to include gay relationships, or as Rep. Debbie Riddle put it, adding a "Romeo and Romeo" exception.

Throughout all the discussion of the "Romeo and Juliet" exception to the so-called "Jessica's Law" in 2007, that oversight certainly never occurred to me, and I watched the process pretty closely. Good catch.

Coleman's second bill, HB 2973, focuses on a topic discussed here recently on Grits in the context of Andre Thomas, the schizophrenic death row inmate who murdered his family then plucked out both his eyes and ate one: Whether the test for legal insanity should be simply whether the defendant "knows the difference between right and wrong." NAMI-Texas said the current definition is so narrow as to be "meaningless."

Under Coleman's proposed redefinition, it would be an affirmative defense to prosecution if an actor with a severe mental illness or defect "was unable to appreciate the nature and quality of the actor's conduct" or did not "appreciate that the actor's conduct was legally or morally wrong."

Rep. Miklos raised the objection that saying someone's conduct was "morally wrong" was a subjective standard, that everyone's definition of morality may be different. Chairman Gallego added that everyone on the dais likely had a different moral view of abortion, which could make "morally wrong" a moving target.

But George Parnham, a criminal defense lawyer testifying for the bill, did a good job of explaining the standard. He compared the subjective nature of the standard to defendants claiming "self defense" as an affirmative defense in a murder case. When assessing "self defense," juries are asked to consider the relative danger of a situation from the perspective of the shooter. Similarly, if a severely mentally ill person hears voices they believe to be God commanding them to do something, for example, since disobedience to God is wrong in the moral construct of the mentally ill individual, a killer following such "divine" instructions would qualify for the affirmative defense.

The discussion centered mostly around the Andrea Yates case - the mother who drowned her five children in a fit of postpartum psychosis believing it would save their immortal souls.

Somehow, as the discussion went on, I found myself thinking of the story of Abraham in the Bible, ordered by God to take his son Isaac to the top of the mountain and sacrifice his life. Abraham dutifully took Isaac to the appointed spot and tearfully raised his blade, ready and willing to plunge it into the body of his only progeny, when Divine Intervention stayed his hand. Abraham serendipitously found a goat whose horns were stuck in the brambles and sacrificed it instead.

No one else was there with Abraham to verify this story on the mountaintop, but from a modern perspective, we would not be surprised to discover Abraham was a schizophrenic hearing voices he believed to be God. Perhaps it's only by chance of fate that he didn't end his filial line at that moment rather than siring the Jewish people. I found myself wondering how the story about nearly killing Isaac would be viewed if Abraham were evaluated today by a mental health professional? It's as though Andrea Yates had decided at the last minute not to drown her children and instead founded a religion.

Such theological matters aside, Coleman's proposed definition reflects a medical understanding of mental illness rather than taking a black and white, "right and wrong" approach to mental-illness driven tragedies. He referred to current law as the "Hinckley Standard," reflecting changes made to various state laws in the '80s as a backlash after John Hinckley tried to assassinate President Ronald Reagan and was found not guilty by reason of insanity.

Andrea Yates' story, said Coleman, brought that reactionary standard back into focus and inspired this bill. Yates' defense lawyer was one of the witnesses testifying. Another gentleman related a heartwrenching tale of his step-daughter's struggle with schizophrenia and the religious delusions that led her to attack her father with a bow and arrow before she was shot by her father's officeworkers and police. A terrible story. I felt awful for the poor guy and his family.

The committee had an interesting and informative discussion on the subject of people who, as Judge Cathy Cochran wrote recently about Andre Thomas, are "clearly 'crazy,' but ... also 'sane' under Texas law."

I liked both bills. You can watch the video here, beginning at the 4:17:45 mark.

House Corrections to consider TYC Sunset legislation today

This afternoon, the House Corrections Committee will be discussing the Texas Youth Commission and Juvenile Probation Commission's Sunset legislation, as well as at a "work session" tomorrow. Those interested can watch the hearing here after the House adjourns this afternoon.

Exoneree testimony is powerful stuff

I spent all day yesterday at the Texas capitol on behalf of the Innocence Project of Texas prior to and during a lengthy House Criminal Jurisprudence Committee hearing in which testimony was heard regarding several key innocence-related bills, most notably eyewitness ID and compensation for false convictions (see coverage from AP).

Committee Chair Pete Gallego sponsored the House version of the main eyewitness ID bill this session (SB 117/HB 3583), and he substituted agreed language from the Senate, avoiding what was shaping up before session to be a big catfight over that legislation. The compromise will require police departments to create policies that comply with a model policy that will be created by the Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State University.

The Dallas DA's office argued - rightfully, IMO - that the bill would be more effective if it required a jury instruction when police didn't comply. But politics is the art of compromise, and since 88% of Texas law enforcement agencies have no written policy on the subject, requiring one is a good first step. (The bill is much stronger than the eyewitness ID bill that died in the House Calendars Committee in 2007.)

Especially impressive, for the second day in a row, was the showing by Texas' DNA exonerees, who accounted for themselves admirably in testimony about eyewitness ID and compensating those who'd been false convictions. Cory Session and his mother, Ruby Cole-Session - the brother and mother respectively of the late and lately exonerated Timothy Cole - were there, too, and Mr. Session continued to earn himself a reputation as quite an orator.

I've gotta tell you, one of the treats of getting to work for the Innocence Project of Texas this session has been watching the exonerees get plugged into the legislative process, testify at hearings, and participate in a lobby day in February where they did dozens of office visits. I couldn't be more proud of them; it's been a privilege and an honor to be around these guys, if sometimes emotionally overwhelming.

When I give testimony at the Lege, I prepare a little outline or list of talking points on whatever bill we're addressing, but when these guys give testimony, it's like testimony in church, as in, "This is my testimony, what I learned from the still, small voice that spoke to me at my darkest hour during years of sadness and isolation."

Every one of these exonerated men is like a novel, or perhaps an epic poem, unto himself. (John Grisham recognized that.) Some of them - James Waller comes to mind - have lived out tragedies Shakespeare couldn't fantasize, both during and after their incarceration, but still have enough faith in the system to come to Austin and confront the people who made the laws that wrongly took their lives away because they believe telling their stories can make a difference.

And I'll be damned if it doesn't. I don't care how jaded you are, you can't listen to such stories and not be moved. Here's the video link to watch testimony on the first couple of bills heard by the committee (technically the first three bills), for a taste of what I'm talking about. It's not a quickie - probably a couple of hours to hear all the testimony on the eyewitness and compensation legislation - but well worth watching. Be sure to grab a box of Kleenex before you hit "Play."