Odds and Ends

Here are a few odds and ends that would likely become full posts in their own right if I had more bandwidth to focus on the blog today:

End of an era
As of tomorrow, Americans must present a passport to cross the Mexican and Canadian borders. For my entire lifetime, a driver's license and a declaration of citizenship have sufficed.

Legal ethics and other oxymorons
Mark Bennett takes notable exception to ethics instruction by Williamson County DA John Bradley in the wake of a recent Supreme Court case on the right to counsel. Bradley advises that a recent Supreme Court opinion voids a longstanding Texas disciplinary rule barring prosecutors from approving contact by police with a defendant who is represented by counsel ("taking a run" at a suspect, in the parlance) without notifying their lawyer. Bennett says those who take Bradley's advice are putting their bar card at risk, though I've seen little evidence the State Bar of Texas aggressively pursues misconduct allegations against prosecutors.

A tribute
See an excellent profile of Louis A. Bedford, Dallas' first black judge, on the occasion of the publication of a new biography. Dallas DA Craig Watkins, the first black man to hold the position, says Bedford was a lifelong role model for him.

A "coordinated effort" to "eradicate" businesses
In a tanking economy, it's odd to see officials boasting that "a coordinated effort among state, city and neighborhood leaders, Dallas communities are beginning to see many of those businesses eradicated. " The rules are different, I guess, and the desire for economic growth dampened, when we're talking about sexually oriented businesses.

Final deal reached on TYC funding
The agency will undergo Sunset review again in two years.

A radical approach on graffiti
Buenos Aires has eliminated laws against graffiti, with surprisingly positive results. See this excellent report from ABC News:

There are no specific laws banning graffiti in the capitol, unless it is contains ethnic or racial slurs, ABC News producer Joe Goldman in Buenos Aires reported.

"One could paint a wall of a police station without having any problem in Buenos Aires," Goldman added.

Bonnie and Clyde 75 years hence
Last weekend was the 75th anniversary of the death of Bonnie and Clyde, two Texans whose larcenous exploits became larger than life in the repeated retelling until they became national anti-establishment icons upon their death. The FBI released a bunch of new information on the couple in commemoration of the anniversary and a couple of new books on the topic have been published. Like John Dillinger, whose exploits about the same time will be chronicled in a major motion picture this summer, Bonnie and Clyde posed a problem the justice system of the day couldn't solve; both were gunned down in cold blood by what were essentially government assassins, a fact which probably contributes significantly to the popular appeal of both the Dillinger and Bonnie and Clyde legends.

Texas prison cell-phone scandal making national news

The latest issue of Wired magazine includes a feature on the problem of cell phone smuggling in Texas prisons by Vince Beiser, highlighting the much-ballyhooed case where a death-row inmate began calling state Sen. John Whitmire, launching a statewide lockdown that revealed dozens more phones at units statewide.

Though certainly there are cases out there of prisoners using phones to commit crimes, and Wired runs through the most frequently cited examples, most cell phone use, of course, is to stay in touch with family and friends not to "order hits" or commit new offenses. Still the issue certainly constitutes a security threat, most immediately because it contributes to guard corruption, a point the story emphasizes:

the easiest—and probably most common—way mobiles are moving into prisons is in the pockets of guards and other prison staff. "There's no question that corrupt officers are involved," says Texas inspector general [John] Moriarty. The risk is small, the payoff big. Correctional staff coming to work are typically searched only lightly, if at all, and a phone can fetch a couple thousand dollars. One California officer told investigators he made more than $100,000 in a single year selling phones.

Deep into the article after listing several stories of crimes related to illegal cell phones, the tone changes when Beiser begins to talk about solutions:

There's no question that prisoners are using cell phones to foment all kinds of mayhem. But investigations have established that most calls placed on contraband mobiles are harmless—just saying hi to family and friends. Whatever their crimes, most convicts have parents, children, and others they're desperate to stay in touch with. Letters are slow, and personal visits often involve expensive, time-sucking travel. Some prisons have public phones for making collect calls, but access is limited, conversations are often monitored, and phone companies often charge much higher rates than on the outside.

Texas prison officials quoted in the story agreed part of the solution must be expanding legal communication between inmates and their families:

the most compelling reason to let inmates ... talk to their families isn't that it's nice for them or even their mothers. It's that it could reduce crime and save the public a bundle by cutting recidivism. Most of the more than 2 million men and women behind bars in the US will eventually be released, and decades of research show that those who maintain family ties are much less likely to land back in jail. Every parolee who stays straight saves taxpayers an average of more than $22,000 a year.

Even tough-on-crime Texas has embraced that logic. The state has long refused to allow phones of any sort for inmates in its prisons, but this year officials are installing landlines. "Once they're in place, we expect a decrease in the problem," Moriarty says.

Wired's story was followed up by pieces in Time magazine and on CNN referencing Texas' cell phone smuggling woes.

The best solution here, unfortunately, must come from the federal level: A 1934 law bans state and local governments from jamming broadcast signals and would have to be altered by Congress, according to officials at the FCC.

See related Grits coverage:

• Senate committee examines reasons for contraband smuggling
• FCC has no authority to approve cell phone jammers
• Chasing illegal cell phone use in TDCJ
• Cell phone trafficking in Texas prisons
• Guards and contraband smuggling in prisons and jails
• Texas prison guards smuggle cell phones to inmates
• Even death row not immune to contraband smuggling
• Has TDCJ learned the right lessons from death-row cell-phone scandal?
• Few prison guards fired, prosecuted for contraband smuggling
• New rules for TDCJ phone service approved

Last ditch effort to salvage eyewitness ID reform fails

In the wake of yet another DNA exoneration based on faulty eyewitness testimony, the 20th out of Dallas, state Sen. Rodney Ellis and Dallas County District Attorney Craig Watkins held a press conference yesterday at the state capitol calling for immediate action by the Legislature, before it shuts down on Monday, to pass legislation requiring law enforcement agencies to have written procedures on presenting photo lineups.

Sen. Ellis called on the House of Representatives to appoint a conference committee on HB 498, the Innocence Commission study bill approved with amendments this week by the Texas Senate, and suggested that the conference committee be authorized to "go outside the bounds" in order to include eyewitness ID legislation. Sure enough, a couple of hours later, Rep. Ruth McLendon did indeed ask the House to appoint a conference committee for HB 498 (made up of Thompson, Hodge, Moody, Pierson, and McLendon as chair). Senate conferees should be appointed today. (UPDATE: Senate conferees are Huffman, Hegar, Carona, Whitmire, and Ellis as chair.)

Once Senate conferees are named, the conference committee can propose a resolution to go "outside the bounds" to add the eyewitness ID bill to the existing language.

As has been the case since session began, time is the main enemy as the eyewitness ID legislation has always had broad support. SB 117 passed 31-0 in the Senate and was poised to pass easily in the House (in this writer's opinion) before it was delayed to death by the ignominious voter ID fight.

FINAL UPDATE: What a disappointment! The conference committee report (pdf) not only failed to add SB 117 on eyewitness ID, they actually stripped out the two good bills amended onto HB 498 in the Senate. Given that the House had already finally approved HB 498 before Rep. McLendon made a motion to reconsider and sent the legislation to conference committee, this gambit seized defeat from the jaws of victory, leaving only a "study bill" on an innocence commission and eliminating the substantive portions of the legislation.

Big Brother Watch: TX Senate would authorize license plate readers on TX highways

I've been busy elsewhere and neglected to mention that the Texas Senate approved an amendment authorizing the damn license-plate readers after TXDoT denied a request by the DEA last year, discussed previously on Grits here and here. In their blog post on the story, the San Antonio Current lets us know that "Texans who are concerned about Article 33’s Orwellian implications can use a form set up by the ACLU to ask their representatives to call for it to be taken out of the bill."

Potential for significant unintended consequences lie in these devices' deployment, particularly in Texas, where high traffic fines, sometimes with absurdist "civil" fees larded on top, have combined to leave more than one in 10 drivers with outstanding arrest warrants - mostly for traffic tickets - widespread use of license plate readers would make theoretically possible a dragnet that would overwhelm the jails and courts in a heartbeat if it were ever implemented to even a fraction of its full potential.

The solution is to scale back those too-high (and mostly unpaid) fees, not to use the jails as debtor's prisons in order to generate a revenue stream. Conference committee members should strip this ill-considered provision out entirely.

MORE: From the Texas Observer.

AND MORE (June 1): After the red-light camera lobby had their way with the conference committee, this legislation thankfully died. We'll find out by the end of session whether that necessitates a special session or if the Lege can resuscitate a "safety net" bill to keep the Department of Transportation going without completing the sunset process.

Attack on in-prison employment based on phony claims of harm

With all the bills dying at the Texas Legislature, it's a shame to see ones making it through that do more harm than good, which IMO is the case with HB 1914 placing greater restrictions on the small number of "prison industries" programs (PIE) through which private employers pay inmates to work in a commercial business, allowing inmates to contribute to victim compensation, child support payments and even their room and board. PIE has 200-300 working inmates at any given time - only five companies currently participate.

The bill was spawned after claims by Sen. Robert Nichols and an East Texas company Lufkin Trailer when they claimed one of the prison industry programs had undercut their price and put them out of business. As I wrote the when the bill was heard in the House, however, this turned out to be an entirely false representation.

Unlike grandstanding statements to the newspapers, public companies must make statements to the SEC, in this case their 2008 corporate 10-K filing, for which they suffer criminal penalties if they're not truthful. And in those corporate filings, where they're required to list their primary competitors, the PIE-involved company wasn't even on the list:

The companies with the highest market share are Great Dane and Wabash, along with several other large manufacturers like Utility, Stoughton, Fontaine, Vanguard and Hyundai. [Lufkin Trailer] does not have a significant market share in the trailer market.

So Lufkin Trailer's competitive disadvantage wasn't really with a small shop working out of a Texas prison, it was with international manufacturers participating in an utterly globalized market. Blaming the tiny bunch of trailermakers in the PIE program was nothing but a PR excuse for a publicly unpopular decision that the company really made for other reasons. Contrary to their claims in the press that competition from prison labor had caused their demise, in their official SEC documents, the company blamed the closure of their trailer division on:

reduced activity in the home and road construction markets as well as reduced profitability from higher fuel prices. In 2007, industry order rates and backlog for flatbed trailers decreased over 40% and for dump trailers over 25% compared to 2006 levels. In the fourth quarter of 2007, industry order rates and backlog for flatbed and dump trailers decreased almost 50% compared to the fourth quarter of 2006. Due to these market conditions, in January 2008, the Company announced the decision to suspend its participation in the commercial trailer markets and to develop a plan to run-out existing inventories, fulfill contractual obligations and close all trailer facilities during 2008.

No mention of competition from prison labor at all, though if it's really that big a deal they are required by law to disclose their competitive disadvantage. I just don't buy it. If this was as big a problem as Sen. Nichols and Lufkin Trailer claim, the company would be legally obligated to disclose the issue in their SEC filings. But they never did.

The only silver lining in the bill is that it mostly leaves alone current PIE program participants, but it places fairly radical restrictions on any new programs. That probably means we won't see Texas' program expanded any time soon. According to the Cherokean Herald:

H.B. 1914 will help stop job loss and unfair competition by:

• eliminating sweetheart deals and requiring businesses using prison labor to pay a fair market value for use of facilities
• moving oversight of the program from the Prison Industry Oversight Authority to the Texas Department of Criminal Justice (TDCJ) board
• preventing TDCJ from approving contracts resulting in job loss anywhere in Texas
• allowing employers to submit a sworn statement that their business would be hurt and jobs could be lost by approval of a specific prison industry contract
• requiring job and product descriptions be specific so employers can recognize a prison industry contract that would unfairly threaten their business
• creating notification for area businesses and posting information about programs online
• notifying the state senator and state representative in whose districts the project would be located

Those so-called "sweetheart deals" are being misrepresented. TDCJ gives employers low rent in the PIE program to entice any employer to work there at all. Working in a prison involves its own discomforts and anxieties for the free world workers who participate. Plus, their employees' work is subject to disruption by lockdowns, disciplinary actions, and any number of other common prison occurrences that are entirely out of the control of both the worker and the employer. For example, last fall's lockdown searching for cell phones resulted in immediate, unplanned work stoppages for PIE units that free-world companies don't have to face. So by eliminating incentives, only charities, not businesses, would ever consider working with the PIE program.

Meanwhile, the "notification" requirements are an attempt to drum up opposition. But a "sworn statement" that a PIE program might harm their business is not remotely the same as demonstrable proof that's the case, though the bill seems to imply it should be accepeted as such. As shown above, in the example spawning the rule, the claim about this program putting Lufkin Trailer out of business was demonstrably false, at least according to the company's sworn statements to the SEC.

Personally I wish they would scale this bill back in conference committee or else the Governor should veto it outright - not that I'm holding my breath. HB 1914 is a solution looking for a problem and it harms a (small) program with a solid track record of improving inmate behavior and reducing recidivism for its participants.

Cockfighting, piracy, black helicopters and needle exchange

Here are a few more odds and ends from yesterday's Senate proceedings wrapping up the narrative on bills this blog has covered at various times throughout the session:

Cockfighting and highway piracy
Sen. John Whitmire tacked on his SB 1529 regulating asset forfeiture "waivers" to an enhancement bill on cockfighting, the Statesman's Mike Ward reports. The bill was on the major state calendar for days but never received a vote in the House before time ran out. See prior Grits coverage.

'Black helicopters' take out needle exchange
Less fortunate was Sen. Bob Deuell's needle exchange bill SB 188, which like the asset forfeiture bill was left sitting on the calendar in the House thanks to all the chubbing waiting on a vote that would never come. Sen. Troy Fraser spearheaded efforts to kill the amendment, leading Sen. Deuell, an East Texas Republican (and medical doctor) to pronounce, "I think it's time, especially for you Republicans, that if we're to remain a viable party, we need to start looking at medical facts and dealing with reality and not dealing with black helicopters and other myths that are out there by the right wing extremists."

DPS Sunset bill becomes Christmas tree
The DPS Sunset bill was approved by the Senate with a battery of amendments I've yet to examine. I did notice Sen. Florence Shapiro got her data reporting improvement plan, favorably discussed here and here, tacked onto the bill as an amendment. Sen. Tommy Williams added an interesting looking amendment that transfers "certain records and regulatory functions relating to dispensing controlled substances by prescription" from DPS to the Texas State Board of Pharmacy.

Conference committee to decide red-light cameras' fate
House amendments to the Department of Transportation Sunset bill requiring that municipalities phase out use of red-light cameras did not make it into the Senate version, leaving the issue to be decided by a conference committee. Gary Elkins out of Harris County is urging House conferees to stand firm; I couldn't agree more.

Innocence bills resurrected, doomed as Senate deadline tolls

Wednesday was a big day on the innocence front. It began with the announcement of the 20th DNA exoneration in Dallas (yet another case where an eyewitness picked the wrong person out of a photo lineup), saw the Governor sign the state's compensation bill for falsely convicted inmates, and ended with a couple of innocence bills that died in the House coming back to life as amendments in the Texas Senate.

Work on pending innocence legislation came literally down to the wire last night, with the Texas Senate considering Rep. McLendon's HB 498 less than an hour before their deadline cut off consideration of additional bills for the session. Sen. Rodney Ellis carried the bill in the capitol's eastern chamber.

HB 498 was scaled back to a study whether an innocence commission should be created in order to mollify concerns from the Governor and others about creating a new bureaucracy. Those revisions, however, cleared the way for the bill to become a vehicle to tack on two other good pieces of innocence legislation that died in the House thanks to "chubbing" on voter ID.

Amended to the bill were agreed versions of SB 1864 expanding access to DNA testing and SB 1976 clearing technical hurdles to filing writs in cases where discredited scientific evidence was used at trial. Hopefully, the House will concur in the Senate amendments and at least this much can be salvaged from the wreckage they caused over Memorial Day weekend.

Senators did not add SB 117, which would have required police departments to have written policies on eyewitness identification procedures, even though that body had already passed the same legislation unanimously once before and the Governor was willing to sign the bill. Freshman Sen. Joan Huffman spearheaded efforts to keep such language out.

I can't believe senators wouldn't accept the agreed language on SB 117, which they'd earlier approved unanimously. The Court of Criminal Appeals' "Criminal Justice Integrity Unit" said eyewitness ID reform should be the Legislature's highest priority for preventing false convictions, but thanks to a handful of recalcitrant senators and the meltdown in the House, Texas must wait two more years before rectifying this glaring problem.

Similarly, objections were raised to adding even a relatively watered down version of SB 116 encouraging law enforcement agencies to record custodial interrogations, leaving another lingering, well-documented source of false convictions unresolved. (About a quarter of DNA exonerees either confessed or pled guilty.)

It's terrific Senators Ellis and Whitmire were able to resurrect SBs 1864 and 1976 from the ashes of the House of Representatives' flameout. For that, both men (and their staffs) deserve thanks and approbation.

However, with the deaths of SBs 116 and 117, the only significant legislation passed aimed at preventing false convictions was SB 1681 by Hinojosa requiring corroboration for testimony by jailhouse informants. That bill has already been approved by both chambers and sent to the Governor.

So all in all, the 81st Legislature leaves a lot of work undone if they hope to reduce the number of innocent people convicted and sent to prison in this state. For all the well meaning statements from the leadership, particularly regarding the Tim Cole case, the bills that finally passed this session barely scratched the surface of the most important innocence issues facing the state, in particular failing to address the main cause of Tim Cole's false conviction, not to mention Jerry Lee Evans who was freed in Dallas yesterday: Biased and flawed eyewitness identification practices.

If the Governor decides (God help us) to bring the Lege back for a special session, IMO he should heed the CCA Integrity Unit's advice and add eyewitness ID reform to the call. The idea already has strong support in both chambers and would likely have passed save for the voter ID meltdown.

Yesterday's fresh exoneration serves as a strong reminder that what Texas is doing now isn't working, at least not all the time. Modern policing techniques can reduce mistaken eyewitness testimony significantly using well-established, common-sense procedures for showing photos and handling lineups. Going forward, continuing known bad practices threatens to foment a crisis of confidence in the justice system - with increasing justification.

Carona's law enforcement integrity unit another victim of Chubfest 2009

The reform bills mentioned earlier weren't the only good criminal justice bills that died in the House at midnight yesterday.

It looks like John Carona's SB 388 - creating a law enforcement integrity unit at DPS to investigate police corruption - was another victim of what Harvey Kronberg called the "Tommy Williams Memorial Day Chub." The Governor was down with it and it looked for a fleeting moment like a compromise bill had a good chance of passage. It had been approved by the Calendars Committee and was sitting on the general state calendar when time expired last night.

Exoneration punctuates need for eyewitness ID reform

As if to punctuate the gravity of the error, the day after the Texas House killed legislation to require eyewitness ID reforms among police, Texas will see its 40th DNA exoneree (the 20th from Dallas) walk out of court a free man today. The Dallas News ("DNA testing clears Dallas County man in 1986 rape of SMU student," May 27) reports that:

Jerry Lee Evans matched the description of the man who abducted and raped a woman in Deep Ellum in 1986. He even had a similar speech impediment.

But today Evans, 47, is expected to walk out of the courtroom a free man because DNA testing shows he is not the man who raped an 18-year-old Southern Methodist University freshman at knifepoint.

As science has discovered more about how eyewitnesses really identify suspects, it's become clear, as the Justice Project's Edwin Colfax likes to say, that eyewitness testimony should be considered more like "trace" evidence which shoddy or biased collection methods can easily contaminate. That's what happened in this instance, said the News:

Dallas County prosecutors Tuesday pointed to questionable witness identification procedures as a leading reason for his wrongful conviction.

When the woman looked at a six-picture photo spread, Dallas police officers "were leading and encouraging" her to pick Evans out of the photo lineup, said Mike Ware, who oversees the DA's conviction integrity unit. Officers were also "enthusiastically encouraging" after the woman selected Evans.

The Dallas Police Department changed its policies this year in an attempt to eliminate intentional or unintentional encouragement of witnesses through words or body language. Now, photo lineups are shown by an officer not involved in the case and are shown sequentially.

Given that most Texas departments have no written policies on the topic, more law enforcement agencies need to follow Dallas' lead and create written procedures for photo lineups that require blind administration and other best practices.

'Chubbing' kills innocence bills, and many others, in Texas House

Given that yesterday was a rare weekday when Grits was silent (due to work and familial duties), it was an awfully big news day both in Texas and nationally on the criminal justice front.

I'll post something later about Barack Obama's new US Supreme Court nominee once I know enough about her to have an opinion. SCOTUSBLog is the go-to source on that topic and also on SCOTUS' decision yesterday to overturn Michigan v. Jackson, a case about the right to counsel with significant field implications for how officers interact with suspects.

At the Texas Lege, the news was disappointingly grim. Several key "innocence" bills and other criminal justice reform legislation pending in the House died when the clock tolled midnight last night, though there's a chance some of them can be revived at the last minute as amendments to House bills in the Senate. Basically, partisans were playing a big game of "chicken." No one blinked, so the result was a head-on crash that more or less totaled the 81st legislative session, especially since the House had passed relatively few bills before their final, homestretch run.

That's terribly bad news - an example of badly misplaced priorities by the majority in both parties in the lower chamber. I was frankly disappointed in the whole lot of them for letting this petty matter derail four months of work, leaving issues these bills would have addressed lingering for the next two years. In a state as large as Texas, if the Legislature is only going to meet biennially, I'd like to think legislators understand they have a responsibility to accomplish something when they're in town. (We didn't elect them, after all, to get nothing done.) Instead, everyone is focused on their own re-election or else scoring partisan political points. Voter ID only really interests hard-core partisans on both sides, but of course that's who tends to get elected.

Lots of stuff that really impacts Texans was on the list of now-dead bills in the House, including windstorm insurance and the Department of Insurance Sunset bill. On the issues I follow, the House allowed legislation sitting on its calendar since last week to die on the altar of the voter ID fight which would:

• Require police departments to maintain written policies following minimum best practices on eyewitness identification procedures.
• Encourage recording custodial interrogations of suspects by police.
• Expand access to the courts for habeas writs based on discredited scientific evidence used at trial.
• Restrict police and DA's ability to request "waivers" in asset forfeiture cases when no criminal or civil case has been filed as was done in Tenaha and elsewhere.
  
• Allow big cities to operate needle exchange programs to prevent disease and promote drug treatment.

The Court of Criminal Appeals' Criminal Justice Integrity Unit told the Legislature that passing eyewitness ID reform should be their highest priority for preventing false convictions, but the House decided that could be put off for two years and voter ID was more important. Thanks, guys.

There's one more day to see if the Senate can amend some of this language onto other bills, but even if they do, it won't mitigate how irresponsible it was to shut down the whole legislative session over voter ID. These folks have some seriously screwed-up priorities.

Drug war corruption deja vu

I had a serious deja vu moment last night watching 60 Minutes' expose on a bizarre case involving a multijurisdictional drug task force in Missouri in which some 20 people were arrested in an undercover drug sting before it unraveled in a web of lies and scandal.

Anyone who followed the "Tulia" case in Texas would be hard-pressed not to think of convicted perjurer and former police officer Tom Coleman, whose accusations sent dozens of people to prison before he was proven a liar and his victims were released and pardoned. (That nightmarish episode was also profiled on 60 Minutes a few years back.) A similar drug sting in Hearne, TX has been portrayed on the silver screen in the movie American Violet, which came out last month.

The Missouri case added an even more bizarre twist: The main cop in the story turned out to be an impostor, a fake who got a phony badge off the Internet, printed up his own business cards and convinced the small-town cops he represented a federal agency. Unreal.

This lets you know that locals elsewhere don't provide any more supervision for drug task force officers than did the folks in Tulia and Hearne. We got rid of these troublesome pseudoagencies in Texas and it's about time the rest of the country followed suit.

Voter ID fight puts criminal justice reform bills at risk

In some ways, the comeuppance seems fitting - the Texas Senate early in the session used a parliamentary loophole to get around the so-called 2/3 rule to pass Voter ID legislation, and now House Democrats have created a de facto 2/3 rule to block it. An example of smart political chess, if I ever saw one.

In the meantime, though, several important innocence-related bills and other critical reform legislation is at risk of being sacrificed on the Voter ID altar, as House Democrats "chubb" away on every penny ante bill as a delaying tactic to pressure their colleagues to back off Voter ID. The following bills would have most likely already been voted on by now if not for the delay tactics:

• Eyewitness Identification: SB 117 by Ellis would require police departments to create written policies governing eyewitness identification procedures to prevent false identifications of the type that caused 80% of convictions among Texas' DNA exonerees. The Court of Criminal Appeals' Criminal Justice Integrity Unit said this should be the Legislature's highest priority for preventing false convictions.

• Recording Interrogations: SB 116 by Ellis would encourage (but not require, unfortunately) departments to record custodial interrogations.

• Habeas Writs and Junk Science: A compromise reached with prosecutors on SB 1976 by Whitmire would let appellants overcome the "subseqent writ" hurdle when they bring forward new claims involving new or discredited science that undermines their conviction.

• Post-conviction DNA Testing: SB 1864 by Ellis limiting judges' discretion to deny post-conviction DNA testing and requiring samples be run against the CODIS database to identify possible suspects.

All of these bills come after Voter ID on the calendar, so if House Democrats successfully kill that bill through delay, they'll have killed all this good innocence legislation, too. That must not happen.

The House thankfully already passed the exoneree compensation bill and legislation to require corroboration of jailhouse snitches, but these remaining bills represent the heart of innocence-related policy reforms proposed during the 81st session. If they were to die without a vote at this point, it would be a major blow and a tremendous missed opportunity.

Two other good bills I've been tracking on Grits are in the same boat - sitting on the calendar for days waiting for the chubbing to end:

• Asset Forfeiture Reform: SB 1529 by Whitmire would improve state oversight of seized assets and prevent solicitation of "waivers" for seized assets until a civil suit was filed in district court, aiming to address situations like in Tenaha where the practice allegedly amounted to officially backed highway robbery. This bill actually comes before Voter ID on the Major State calendar, but not by much and could still fall victim to the ticking clock.
  

• Local-option Needle Exchange: SB 188 by Deuell would authorize creation of local-option needle exchange programs to prevent the spread of disease and promote drug treatment among addicts in Texas' large cities and counties. Thirty six states have formally authorized needle exhange operations, and Texas is the only state in the union where they cannot legally operate in some form or fashion.

I'd be quite disappointed if all this positive legislation falls victim to what amounts to a partisan feud.

Voter ID was always going to be dicier in the House than the Senate because of the more or less even partisan split. With the Speaker not voting and Rep. Edmund Kuempel hospitalized recovering from a heart attack, the House is essentially divided 74-74 between Democrats and Republicans.

While in truth, IMO there's probably room for compromise on both sides on Voter ID, in the present environment I don't see that happening. More likely, one side either must give in or else one side's tactical maneuvering will prevail. Personally, I don't have a dog in that fight; I'm a lot more worried about the collateral damage it's causing.

Exploring Texas crime data

Having posted an initial reaction to press coverage of the new Uniform Crime Reporting data (which showed so-called "index crimes" declining by 3% overall in Texas), let's adumbrate a few more details from this new dataset out of the Department of Public Safety:

Despite declining crime last year and for most of the decade, according to the UCR, the number of adult Texans arrested increased by 2% in 2008, just as it increased in six of the last seven years. So Texas arrest trends appear disconnected from crime rates, to judge by these metrics. The number of juveniles arrested, by contrast, declined for the fourth year running.

Among countervailing trends to the overall downward tendency, reported arson offenses increased 6%; one wonders whether that's in any way related to the economic downturn as homeowners look to their insurance company for an easy way out of a difficult financial problem?

The value of stolen property recovered in 2008 was $552 million compared to $2 billion stolen.

One eye-catching statistic buried beneath the headlines: "There were 5,184 officers assaulted during 2008 compared to 4,396 in 2007. This represents an increase of 17.9 percent." That's an enormous increase! I wonder what explains it? An increase that large almost makes me wonder if somebody began reporting who wasn't doing so before or if some other technical glitch explains the numbers. Otherwise, that seems like an incredibly alarming trend. Nine Texas law enforcement officers were killed in the line of duty in 2008, according to the report.

Law enforcement in 2008 began to prioritize drunkenness over drug possession, to judge by a chart on page 2: Arrests for the former increased 6.6% while arrests for the latter declined 4.1% and DWI arrests remained steady. In 2007, the number of arrests for drunkenness and drug possession were nearly equal, with 136,201 for drunkenness and 134,692 for drug possession, but in 2008, arrests for drunkenness topped 145,000 while those for drug possession declined below 130,000. It'll be interesting to see over the next few years if that trend continues.

Grabbing most of the MSM headlines, rates per 100,00 for murder, rape, and robbery declined 5.1%, 6.8%, and 4.3% respectively, while aggravated assaults rose 2.1%. But since aggravated assaults make up the majority of violent crimes - 76,487 out of 123,621 total - the overall number of violent crimes declined just 0.6%.

Some but not all of the increase in agg assaults can be explained by a 3.2% increase in the number of family violence victims; 14.9% of Texas' 208,071 family-violence offenses in 2008 were aggravated assaults, according to DPS. That puts the number of family-violence related agg assaults at around 31,000 out of 76,487, or 40.5% of the total and growing.

For property crimes the most eye popping reduction was motor vehicle thefts, which were stolen (at a rate per 100,000) 10.8% less frequently in 2008 than the year before. The number of arrests for vehicle theft also declined by more than 10%, says DPS, so the reason for the decline must be external, not because they caught more people.

Unfortunately, vehicles are the smallest category of property thefts, so the effect on the overall numbers was mitigated by a 0.9% increase in the total number of burglaries and just a 3% decline in the largest category, "larceny-theft" (about 2/3 of the total).

A 3% total reduction? Perhaps. But overall this data presents quite a mixed bag of good and bad news.

Declining crime would be better news if data weren't corrupt, incomplete

As has been discussed many times on this blog, data in Texas about both ongoing crime and criminal histories are incomplete and often corrupt, with wide variations from county to county and department to department regarding what gets reported and how. Sometimes what looks like a big reduction in crime may result from minor changes in reporting rates, while conversely, simply reporting all the data instead of just a portion of it might give a false appearance crime has increased.

So when I see headlines like the ones yesterday claiming a 3% drop in crime statewide, I take it with a grain of salt. Much more important is the overall trend - the Dallas News says there have been drops in seven of the last ten years, which makes me comfortable concluding crime is indeed declining, even if I don't 100% accept the measuring stick being used.

Even so, much of this data is suspect. Dallas is claiming large crime reductions, for example; 10% down in the fiscal year measured. But reminiscent of scenes out of The Wire, they've been jiggering their definitions to give the appearance of less crime, regardless of the overall level of victimization. By contrast, San Antonio saw property crimes spike at rates that seem inexplicable given trends everywhere else in the state. Who knows what's behind that? It could result from more crime, but could also be explained by more reporting of crime or improved data processing by police. Ditto for crime spikes in Austin's suburbs.

The best approach IMO is not to react much to this particular metric: Taking credit for statistical crime reduction sets law enforcement up to take blame when crime goes up, when really the rate of offenses fluctuate independently from their actions based on many other variables, particularly for homicides and other violent crimes.

Relatedly, I'm hopeful the Legislature may address equally flawed reporting by counties of dispositions in criminal cases, that is, if the House can hustle through a whole bunch of bills ahead of it to get to SB 1061 by Sen. Florence Shapiro, which just made out of House Calendars. That bill (discussed earlier on Grits here) would require counties with rates of reporting case dispositions of lower than 90% to create a data improvement plan to rectify problems with case reporting. This is especially critical in cases where charges are dropped; often counties will report when initial charges are filed but don't follow up when the case is dismissed, leaving a record that invites misreading in the state criminal history database. Good job by Sen. Shapiro to proactively address it.

If she's still with us at the capitol then (she's announced she'll make a run for the US Senate if Kay Bailey Hutchison resigns), I wish Sen. Shapiro would pursue a similar program for improving Uniform Crime Reporting data from Texas law enforcement agencies. Without a better effort to standardize definitions and strong incentives for agencies to comprehensively report crime data, these numbers will continue to be quirky, incomplete and more or less incomparable city-to-city or year-to-year.

See the full report.

Only a hit dog hollers: Brady violation at root of latest Dallas exoneration

I've read this story though several times now, and I think former prosecutor Patricia Hogue protests just a bit too much in her shrill accusation that Dallas DA Craig Watkins and his Conviction Integrity Unit misled the Court of Criminal Appeals and let a rapist free. "If the DA's office wants to do that and let rapists out of jail, that's OK. I'm not part of it anymore," Hogue said. "It's still absolutely false that I withheld evidence."

At issue: Hogue accepted a plea from Antrone Johnson, then a juvenile, on sexual assault charges after the victim told her the day before trial that she hadn't really been raped. Reported Jennifer Emily at the News:

Withholding such evidence from the defense is called a "Brady violation." The term refers to a 1963 U.S. Supreme County case – Brady vs. Maryland – in which the court found that prosecutors violate defendants' constitutional rights if they intentionally or accidentally withhold evidence favorable to the defense.

There is no criminal charge for a Brady violation in Texas.

The day before Johnson's trial, the girl told prosecutors that Johnson did not sexually assault her, according to court records. A school official also called her "a great liar," according to another notation in the file.

Hogue claims she would have disclosed the recantation verbally to the defense attorney, but defense counsel in the case doesn't agree and it's awfully hard to imagine any lawyer worth their fee who wouldn't get the case dismissed, or at least reduced, once they knew the victim backed off her accusation.

From this distant perspective, it doesn't seem credible to believe Ms. Hogue told Johnson's attorney her main victim/witness changed her story at the eleventh hour. No one but her behaved like they had that information.

See prior Grits coverage.

Dallas News: Pass innocence bills

In an editorial titled, "Legislature, pass these bills," the Dallas News this morning encouraged the Texas Legislature to approve several innocence-related bills still awaiting final votes this week, three of which could be heard as early as today on the House floor:

Despite advances in lineup techniques in recent years, many Texas police agencies have failed even to adopt internal guidelines or practices. That leaves the court system vulnerable to more cruel but avoidable outcomes.

A bill to provide safeguards (SB 117) has cleared the Senate, and House members are duty bound to pass it as well. Authored by Sen. Rodney Ellis of Houston and sponsored by Rep. Pete Gallego of Alpine, it requires police to adopt written lineup policies based on best practices established by outside experts. The Dallas House delegation should be the fiercest advocates of this proposal.

A related bill (SB 116) by Ellis, national chairman of the New York-based Innocence Project, addresses the bewildering fact that 25 percent of exonerated men had given false confessions. His bill pushes police agencies to electronically record their suspect interviews as another safeguard on wrongful convictions. It, too, deserves House approval.

Lawmakers should be commended for one bill to safeguard against fatal error. Passed by both House and Senate, it establishes a new office to provide qualified counsel to death row prisoners for state habeas corpus appeals, which may involve constitutional rights and matters of prosecutorial conduct.

Considering Texas' experience with wrongful convictions and active death chamber, we hope both houses also pass a strong version of a pending capital punishment bill (SB 1976). It would ensure access to the courts when a death sentence should be reviewed anew in light of advances in science. Texas must do everything possible to avert fatal error in its courts.

Finally, lawmakers should put the final touches on another long-standing Ellis proposal, that of a so-called innocence commission to analyze the breakdowns exposed by DNA exonerations and recommend ways to address them. HB 498 has cleared the House and awaits Senate approval.

A minor clarification: SB 1976 actually applies to habeas writs for all types of crimes, including but not limited to capital offenses as the editorial states. (An agreement was reached with prosecutors on that legislation, so it will likely be approved with a floor amendment implementing the compromise.) That bill will be heard today on the House floor, while SB 117 and 116 are eligible to be heard but quite a ways down the calendar and could still be pushed back until Friday.

Bill requiring corroboration for jailhouse snitches heads to Governor

The Texas House this afternoon (on third reading) passed the same version of SB 1681 (by Hinojosa/Gallego) as did the Senate, so legislation requiring corroboration to secure a conviction based on jailhouse informant testimony will now head to Governor Perry's desk.

Though hardly a cure-all, corroboration of jailhouse snitches was a key recommendation of the California Commission on the Fair Administration of Justice. Florida recently passed much more comprehensive legislation to rein in abuses related to informants. See a resource page from the Justice Project on the problem of jailhouse snitches.

Harrell out as TYC Ombudsman; Senate to discuss TYC/TJPC Sunset

Emily Ramshaw at the Dallas News reports that my former boss Will Harrell will leave his post as TYC Ombudsman and become "director of special projects" under Cherie Townsend at the Youth Commission. Good luck to Will, and to TYC. If history is any guide, you'll both need it.

Note to self: An opening for Shanda Perkins? ;)

RELATED: An email notice from the Texas Criminal Justice Coalition reminds me that:

Juvenile Justice Sunset Bill to be Heard in the Senate Today

On Wednesday, May 20, 2009, at 1:30 pm or upon adjournment in Rm. E1.004 (Extension Auditorium), the Senate Committee on Government Organization will hold its hearing on the Sunset bill (HB 3689) for the Texas Youth Commission (TYC), Texas Juvenile Probation Commission (TJPC), and Office of the Independent Ombudsman (OIO).

This hearing is where the rubber meets the road regarding any outstanding differences between the House and Senate versions of reforming juvenile justice, and the first discussion of the agency's future following the finalization of the next biennium's budget numbers. One expects they'll also get a chance to interview Will Harrell on his way out the door. Live video for that hearing will be available here once the meeting begins.

MORE (5/21): Isela Gutierrez reports (via email):

Yesterday's Sunset hearing was anti-climactic. No bill was voted out, although Senate Gov't Org did lay out and approve a substitute of CSHB 3689, with some possible amendments to come. There was coverage of the hearing by the Statesman blog and KUT (links below):

• KUT Morning NewsPod
• Austin Statesman blog

Guard pay, 2 TYC units snubbed in budget

The Statesman's Mike Ward has a couple of budget updates that will interest Grits readers:

• Prison guards get 3.5% raise
• Two TYC lockups on closure list, again

Both these are half-a-loaf solutions. Prison officials last year said they needed a 20% pay hike to solve their understaffing crisis, so one supposes this amount won't do much to fix that problem in the near term. This the Legislature telling the prison system it doesn't care if they have too many prisoners and not enough guards. "Tough it," is the implied retort.

Even so, emphasizing how costly the bloated prison system has become, even this much more modest raise will cost taxpayers an additional $120+ million; actually fixing the problem would have cost around $ 1 billion over the biennium. However failing to address understaffing doesn't make the problem go away; in fact, quite the contrary.

On the juvie side, the proposed conference committee budget would keep open TYC's Victory Field and Pyote facilities for one more year before closing them, a move which satisfied neither those who wanted the facilities closed before now nor those who would keep them open indefinitely. The idea of fixing the facilities up to keep them going was shot down. “We should not use kids as economic stimulus … which is what we’re doing here,” said Sen. John Whitmire. “I don’t know why you’d fix up something that there’s not going to be any demand for.”

Tweaking the machinery of death

There's a bill up on today's Texas House calendar which I've not tracked closely - SB 1091 creating a capital writs committee for indigent defendants (by Senators Ellis and Duncan) - that deserves Grits readers attention. See the House Research Organization report for background on the bill.

The inadequacy of indigent counsel on capital cases is one of those shortcomings that IMO contributed mightily to bringing the wrath of the US Supreme Court down on Texas' capital punishment system, so to the extent this new office would contribute to boosting the credibility of representation for capital defendants, even proponents of the death penalty have an incentive to support this bill if they want Texas' executions to continue to pass constitutional muster.

The House will consider another capital-punishment focused senate bill today, SB 839 by Hinojosa, which would eliminate life without parole for juveniles convicted of capital crimes, substituting a minimum, real-time sentence of 40-years. This bill has been surprisingly uncontroversial after Williamson County DA John Bradley and other hardliners came out in support of the concept. And at this point in the legislative session, lack of controversy is a good thing for those who want the bill to pass.

UPDATE: Both bills passed to third reading.

UK to police: Cameras in public spaces don't reduce crime

After learning recently that Dallas crime declined less in areas covered by surveillance cameras than in the city overall, I'm unsurprised to see more longitudinal research out of the UK - widely considered the world's most surveiled society - showing that surveillance cameras in public spaces don't reduce crime. Reports the UK Guardian ("CCTV schemes in city and towne centres have little effect on crime, says report," May 18):

The use of closed-circuit television in city and town centres and public housing estates does not have a significant effect on crime, according to Home Office-funded research to be distributed to all police forces in England and Wales this summer.

The review of 44 research studies on CCTV schemes by the Campbell Collaboration found that they do have a modest impact on crime overall but are at their most effective in cutting vehicle crime in car parks, especially when used alongside improved lighting and the introduction of security guards.

Given the growing body of research on the topic, particularly out of Britain, even many CCTV proponents and vendors now admit that the data fails to support claims that surveillance cameras reduce crime.

Where they are useful is to protect specific assets - e.g., in car parks where a security guard is monitoring cameras in real time. But because of the related expense, both for cameras and more importantly, staffing, cities need to develop evidence-based methods for deciding when to deploy surveillance cameras based on where (and how) they actually work. Just paying somebody to monitor cameras downtown risks misallocating scarce policing resources and wasting taxpayers' money without delivering on the promised safety benefit.

There's no reason for Dallas or anybody else to reinvent the wheel by constructing vast camera systems that don't pass a basic cost-benefit test.

Prosecutors justify opposition to DNA testing

Several readers forwarded me a copy of The New York Times' piece yesterday about prosecutors blocking access to exculpatory DNA testing.

It's a good read and covers the terrain well. One point I'd add from Texas' experience (particularly in Dallas), is that there's a potential unintended consequence for the state avoiding DNA testing: If the defendant turns out to be actually innocent, the clock may be ticking on the statute of limitations for prosecuting the real offender. Texas has seen cases where the statute of limitations ran out on the actual perpetrator WHILE prosecutors were fighting to prevent DNA testing that turned out to prove a false conviction.

Today, Texas courts are much more likely just to order the tests, but some prosecutors still fight DNA testing. Indeed, one of the examples in the Times story was from Austin:

In one such case near Austin, Tex., a defendant who was convicted in the bludgeoning death of his wife requested a DNA test on a bloody bandanna found 100 feet from the house. On its own, a test of the bandanna would not prove the guilt or innocence of the defendant the same way testing semen in a rape case might. But if it matched DNA found at the scene of a similar crime in the same county, or DNA in a database of convicted felons, it would be significant evidence that someone else might be responsible — the kind of evidence that might plant a reasonable doubt in a juror’s mind or lead to a confession by a perpetrator.

Although such matches have been found in many cases, most state DNA statutes focus only on whether a test alone could prove innocence. The purpose of Tennessee’s DNA statute, a court there said, was “to establish the innocence of the petitioner and not to create conjecture or speculation that the act may have possibly been perpetrated by a phantom defendant.”

Law enforcement officials often say, “ ‘We’re not going to consider the possibility that a third party did it,’ ” Mr. [Barry] Scheck said, adding, “which is completely crazy because you use the databank every day to make new criminal cases.”

For my money, that's an argument for why the defense bar deserves equal access to the national CODIS database along with prosecutors. Maybe the defendant is on a fishing expedition, but the reason folks go on fishing expeditions is that sometimes they come back with a fish. Many of these actual innocence cases amount to a needle found in haystack. Plus, law enforcement goes on fishing expeditions every day. Some guilty defendants undoubtedly will also request testing, but too many innocent ones have been identified through DNA to justify opposing any motion with a legitimate chance of producing probative information.

In general, I think both the prosecution and defense should have access to sufficient forensic testing to prove up their side, including DNA testing when it might inculpate someone else. DAs would be wise to heed the counsel of an attorney for one of the men described in the story seeking a DNA test: “The one thing I’ve learned in doing this for seven years is there’s no reason to guess or speculate. You can just do the test.”

RELATED: I should add that this stereotype about DAs isn't universally true. The Fort Worth Star Telegram profiled Dallas DA Craig Watkins over the weekend, praising him for his willingness to break with tradition and allow DNA tests in cases, some proving actual innocence, where his predecessor opposed it.

Can't take a hint: Shanda Perkins back for Round Two

I'd seen this article in her hometown paper declaring Shanda Perkins, who the Texas Senate recently rejected by a 27-4 margin for a $95K per year slot on the Board of Pardons and Parole, thought there was still a chance for her nomination to get through this session, but it seemed like piling on to make too much of it. Yesterday, though, the Austin Statesman's Mike Ward reported that Ms. Perkins was meeting with senators in the capitol seeking to switch enough votes (she's 17 short) to resurrect her nomination in the 81st Legislature's waning days.

Asked about the chances of reviving her candidacy, Nominations Chair Mike Jackson told Ward, “What was the vote, 24-7? [Ed note: 27-4, actually.] She’s got a lot of work to do, I’d say.” Indeed she does, and not a lot of time left to do it in.

Photo via the Fort Worth Star-Telegram.

Regard for Keller plummets among Houston lawyers

According to the Houston Chronicle's Legal Trade blog, respect among Harris County lawyers for Court of Criminal Appeals Judge Sharon Keller has plummeted in recent years:

The Houston Bar Association's judicial evaluation poll released [May 8] (see it here) shows some big losses in confidence in jurists who have been in the news - especially Sharon Keller on the state's highest criminal appellate court and David Medina on the state supreme court.

Keller, the presiding judge of the Texas Court of Criminal Appeals, is facing formal proceedings from the state Judicial Conduct Commission accusing her of violating the rights Michael Wayne Richard who was executed in 2007. She ordered the court clerk's office closed promptly at 5 p.m. the day of his execution though his attorneys had a late filing.

In 2007 Keller had 39.7 percent of 78 voters rate her poor and 52.1 percent rate her outstanding. In the 2009 poll, 81.3 percent of 201 voters rated her poor and only 14.1 percent rated her outstanding.

Texas Supreme Court Justice David Medina's wife was indicted on a first-degree arson charge in a fire that destroyed their home and a neighbor's house in Spring. This was after a controversy surrounding the Harris County grand jury that looked into the case and the prosecutor withdrawing the grand jury's charge against the judge for tampering with a document.

In 2007 Medina had 28.8 percent of 292 voters rate him poor and 41.2 percent rate him outstanding. In the 2009 poll, 50.5 percent of 315 voters rated him poor and only 21.9 percent rated him outstanding.

It's pretty telling when an alleged arsonist on the state Supreme Court is viewed more favorably by Houston lawyers than is the Presiding Judge of the Texas Court of Criminal Appeals. At this point, she should just resign. It further discredits and undermines the court every day Sharon Keller continues to sit on it.

Bill creating repository for traffic-stop data needs to move if it's going to pass

As the 81st Texas Legislature winds down, everyone around the capitol is busy surveying the terrain for the few, remaining bills among the 7,000+ filed that survived the carnage, and in doing so this morning I notice a good bill many years in the making: SB 1120 by West, which would reduce and standardize the amount of data gathered for so-called racial profiling reports at traffic stops and create a statewide central repository to gather and compile them. This senate bill is up in the House Criminal Jurisprudence Committee hearing on Wednesday, and despite the late hour, I hope it can move quickly through the lower chamber to a successful denouement.

This important cleanup legislation fixes problems with traffic-stop data as the law currently requires it to be gathered and creates a more stringent requirement that it be reported annually. Dozens of agencies have simply ignored both the law and open records requests from the Texas Criminal Justice Coalition - a nonprofit that heretofore has served as an informal repository of racial profiling reports using the Public Information Act - for access to their local data.

The debate over racial profiling at traffic stops has changed a lot since I've been involved with the issue, entirely because of the 2001 law requiring data gathering at the departmental level. Before that, police administrators and union reps would boldly claim to anyone who would listen that there was no evidence of racial disparities at traffic stops and critics didn't know what they were talking about.

Then the numbers came out and the average disparity between races was well beyond statistically significant. Over time, as this new reality sunk in, the debate among Texas' law enforcement community (to judge by their interactions with activists pushing for reform) transformed from denial ("racial profiling never happens") to what IMO has been a more constructive if often contentious debate about the reasons for disparity. That's a subtle but important shift that occurred pretty rapidly because of the data gathering required in that 2001 statute. Quite a few departments also altered their policies on consent searches as a result of data reported under the statute, including Austin PD which moved to require written consent to search vehicles at traffic stops.

Today's debate, as a result, poses new questions that drafters of the 2001 law couldn't have foreseen, but which over time became apparent as experts from all sides parsed the resulting data. SB 1120 reduces and simplifies the amount of data officers must gather but makes the data points regarding searches more specific, parsing them in a way that will allow more probative, useful analysis for managers, supervisors, and those outside the agency who want to understand the sources of disparity, racial and otherwise, that crop up variously in routine traffic stop searches.

For example, by requiring that police record whether contraband is discovered as a result of the search, it's possible to assess a "hit rate" that measures the relative effectiveness of performing consent searches. Right now, the data required in state law doesn't include that critical metric, so everyone is left looking at the resulting data on "consent searches" without knowing how often the tactic worked. I don't know what the contraband data will say (though from departments that gathered that data in the past, I could hazard a guess). Without question, no matter what the overall trend, results among departments are still likely to vary widely. But I do know that the debate over racial profiling and 4th Amendment rights at traffic stops has been taken as far as it can go based on the 2001 law without the additions required in this bill.

The other key issue SB 1120 would resolve is compliance: A nonprofit pursuing open records requests at hundreds of departments statewide (just under 1,000 out of 2,500+ agencies registered with TCLEOSE), only has so much leverage to get agencies to produce the required reports. Plus, because they're viewed as reform advocates, some departments never accepted TCJC's de facto, semi-official role as keepers of Texas' racial profiling data, which may partially explain their lack of compliance. This bill hands the collection task over to a neutral arbiter at a state agency and gives them enforcement authority to insist by rule that the data be produced as the law requires.

The final House calendar with Senate bills will be published next Sunday, so there's not a lot of time. But this bill cleared a big hurdle by getting out of the Senate in one piece and the House would do well to seize the opportunity and pass SB 1120 while they have the chance.

Habeas writs by the numbers

Discussing post-conviction habeas corpus writs, a topic about which I've been learning much more this session, Doc Berman says he'd like to see more state-level numbercrunching:

US District Judge Lynn Adelman's new article titled "The Great Writ Diminished" aspires to "stimulate a discussion about the current state of habeas corpus. Wonderfully, the article has already started such a discussion in these blog comments, and I want to keep the momentum going in this post.

Specifically, I would like to see a lot more number crunching concerning habeas appeals of state convictions in federal courts. Judge Adelman builds off the ground-breaking 2007 Vanderbilt study which, as discussed here, found that of 2384 non-capital filings examined, petitioners received relief a rate of 1 in every 341 cases filed, whereas of the 267 capital cases examined, about 1 in 8 petitioners received relief. These national numbers may obscure lots of significant state variations and also significant issue-specific variations that could and should tell us a lot more about how the great writ is really working.

Happy to oblige.

In Texas, evaluating (and mostly denying) habeas writs makes up a large amount of the caseload for judges on the Court of Criminal Appeals and their staff. According to the annual activity report for the CCA (pdf, page 2, right column), in fiscal year 2008 Texas high criminal court considered 5,290 individual habeas writs, but granted relief in only 8 of them. That's a rate of about one out of every 661 cases, or about half as often as federal judges evaluated in the Vanderbilt study. (Another 350 were remanded for evidentiary hearings by a trial judge and not finally decided.)

Federal District Judge Lynn Adelman, by contrast, approved 12 writs out of 300, or approximately 4%, leading the judge to argue that "if the author’s experience is any indication, on average district courts are not granting habeas petitions as often as they should be." Maybe so, but the judge's colleagues are decidedly friendlier to claims by writ writing prisoners than the Texas Court of Criminal Appeals, by a longshot.

'Born Behind Bars'

The Lubbock Avalanche-Journal today published a nice piece by Logan Carver ("Born Behind Bars") exploring what happens to pregnant women in the Lubbock jail and in Texas state prisons. About 250 women per year give birth in a Texas prison hospital, the A-J reports, and dozens more pregnant women (nobody knows how many) are housed in Texas county jails at any given time. Well worth a read.

Relatedly, legislation discussed here regarding pregnant jail inmates - one bill to ban shackling during labor and delivery and another to require an accurate count of pregnant inmates - has passed the Texas House.

• HB 3653: Bans the shackling of incarcerated women in labor and delivery (with some necessary exceptions for safety).
• HB 3654: requires county jails to plan their medical care for pregnant women and also requires them to count how many pregnant women they have incarcerated.

No mention of the bills or the issue of shackling during delivery in the A-J story, but I did notice a recent letter to the editor on the topic out of Waxahachie, of all places. Both bills are awaiting action by the Senate Criminal Justice Committee where, according to the Texas Jail Project, freshman Sen. Wendy Davis will hopefully shepherd them through the upper chamber.

'Is there credibility in citizen journalism?'

At Digital Journal last week, the question was raised, "Is there credibility in citizen journalism?" But from my perspective, that turns the question on its head. Instead I'd ask, "Would citizen journalism exist if the mainstream media had more credibility?"

Don't get me wrong, I think we need the mainstream media, but as one of these so-called citizen journalists (that's just a "blogger" for those of us in the flyover states) I can tell you part of my motivation for doing this is precisely a reaction to my own criticisms of how the MSM cover stories. They should at least acknowledge the beef goes both ways.

Digital Journal quotes a grey-bearded ex-journalist from the Tornonto Globe and Mail, Jack Kapica, who offers this critique of blogging:

"Much of the writing I’ve read, on most citizen journalism sites, shows little understanding of the process of gathering the news and writing it in a conventional form. Conventionality of presentation is important because it can give readers a recognizable framework to assess and understand what’s being written."

Style issues aside, Kapica says citizen journalists need to focus on doing more original reporting rather than working as a rewrite desk in a newsroom. "One of the critical things many citizen journalism writers do not understand is the necessity of interviewing people and quoting them. The value of original quotes cannot be overstated. Too frequently I see citizen journalists quoting the mainstream media stories and I can’t see how this differs from mainstream media."

These comments interest me, particularly the bit about conventional presentation, because of the other main critique of bloggers Kapica offers - "bias." This confluence of opinions tells me Kapica (and, believe me, many other grey-bearded journalists) doesn't understand the biases inherent in traditional news reporting to which the blogosphere is largely a reaction.

When Kapca talks about "conventionality of presentation," he's referring to what in journalism school is called a reverse-pyramid format for news-writing: Where the "most important" news is presented in the "lede" or opening stanza to the story with less important items by rank appearing further down in the copy. The idea was, in the old days, that editors at daily newspapers making snap decisions could reliably just "cut from the bottom" and be confident that they didn't remove the crux of the story.

But that "conventionality" reflects an historical belief by journalists in a faux objectivity that most bloggers believe does not exist. When you think about it, a lot of value judgments must be made to decide what's "important" about a story and different people may think different facts are key.

Indeed, most quality blogging in my experience comes from folks with expertise in a field who see that MSM coverage of their area fails to adequately cover or even identify what's important. In Grits' case, I launched this site in part because I was sick and tired of the MSM's crime coverage dichotomy: Tuff vs. Soft seemed like the the only terms of debate, usually "balanced" with quotes from "both sides." I thought such discussions deserved more nuance.

Which is another reason I think Kapica overstated the value of getting independent quotes. "Getting quotes" is a means of maintaining the appearance of objectivity by attributing views expressed to others. Often the journalist already knows what they want the source to say but comes to them to fill in already-made assumptions about the story. Quoting sources can be useful when journalists earnestly explore different perspectives, but that's a lot rarer than the formulaic use of quotes in most MSM stories, particularly on crime and punishment.

That explains why often bloggers will simply quote and comment on the MSM: Their role isn't to supplant it but to fill in its gaps missed by the he-said/she-said formula, to assert meaning to the news beyond the reporter's faux objectivity and identify biases and agendas that underlie MSM coverage but are too often un-acknowledged by it.

That's also why I'm less concerned than Kapica about journalists or bloggers acknowledging their biases, which he thinks reduces journalism's credibility.

"I see [citizen journalists] freely mixing opinion with factual reporting in obvious ignorance of how this is a conflict of ambition," Kapica says. "In one story I read a while ago, a fairly well-structured news story suddenly included the following sentence opener: 'Now come on, folks...' If the mainstream media tried to pull a stunt like that, it would be flayed for bias. For some lucky reason citizen journalism is being held to a different standard."

I see this completely differently, believing the oberserver's bias is inherently part of any high-quality written piece. If the reporter masks their opinions, their views are still latent in decisions about what is important, who to quote or which quote to use and which ones to discard. I'd rather the writer tell me their opinion, even if I disagree. That way, I can identify the threads of fact they present that I believe independently are probative and which ones merely support the writer's personal views. Indeed without that knowledge, I don't always know whether to trust the conclusions in a piece of reporting sans independent verification.

I think Kapica's right that the blogosphere could use more original reporting, but it's easy to overstate how much original reporting many MSM reporters historically have done. Many stories begin with a press release or a single insider source with an agenda. That's particularly true in politics and on the crime beat, where the local police department PR office is the source for the vast majority of what's printed about local crime. While not universally the case, it's true often enough that workaday journalists can't be too high and mighty about the amount of shoe-leather spent getting their stories.

I do agree with Kapica that the lack of editors in the blogosphere is a tremendous loss and can sometimes lead to embarrassing slip ups. But these days even MSM journalists produce unedited prose in daily newspaper blogs so that trend goes beyond the amateur/professional gap. For that matter, publishers frequently don't finely edit books anymore; either an agent does it or the job is left to an amateur, family member etc.. In such an unfiltered context, though, isn't knowing the reporter's biases even more key to understanding what you're reading?

I also agree that would-be bloggers would benefit from training, but perhaps we should think about that more broadly than just that wannabe bloggers need to take a few classes before they can play in the big-leagues. Such classes may be needed by some in the current class of bloggers, but going forward maybe we need to rethink how we teach writing in public schools if, in the future, the public will rely more on average citizens' journalistic contributions.

Obviously I believe there can be credibility in citizen journalism or Grits wouldn't have more than 4,000 posts published in the last five years. IMO, perhaps its time to discuss instead how to boost journalism's credibility generally, regardless of medium or employment status.

Chatman prosecutor: 'Let's get this system fixed'

James Fry, a former Dallas ADA and protoge' of District Attorney Henry Wade who prosecuted recent DNA-exoneree Charles Chatman's case nearly 30 years ago, reflects on his role in the false conviction and the implications of recent DNA exonerations for the justice system in an excellent Dallas Morning News op ed titled, "I put away an innocent man," which concludes:

Chatman's case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?

For years, Texas has led the nation in the number of executions. Why don't we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?

For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.

I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.

But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let's get this system fixed.

Revenge of McLovin: Bills good and bad try to sneak in under deadline

Taps played in the Texas House last night as the clock struck midnight, signaling the death of several thousand bills filed in the lower chamber that didn't make it out by the deadline, at least for this session. (Now, of course, begins the biennial sport of tacking on dead bills to still-moving legislation.)

Looking at the bills that did make it through on the final day, these criminal justice highlights stand out:

Innocence Investigated
HB 498 (McLendon) - Creating an Innocence Commission to investigate false convictions and identify reforms to prevent their recurrence. (See prior Grits coverage.) This bill in 2007 passed the Senate but died in the House, so its prospects look fairly bright headed into the eastern wing of the capitol, where most senators have already voted for it. Earlier in the day, the House concurred with Senate amendments on HB 1736, approving increased compensation for exonerated inmates.

Rethinking the 'Law of Parties'
HB 2267 (Hodge) - Would require severing trials in capital cases involving the law of parties and make the maximum penalty for nonkiller accomplices in capital cases life without parole. (See prior Grits coverage.)

Investing in Human Capital at TDCJ
HB 518 (Kolkhorst) - Would create a student loan repayment program at Sam Houston State for graduates who go to work at the Texas Department of Criminal Justice. Not as good as a pay hike, but as my father likes to say, it's better than a sharp stick in the eye.

As always, there were also a few penalty "enhancements" thrown into the mix:

Cinderella's Last Dance
The last House bill approved by the lower chamber before Cinderella's carriage turned into a pumpkin was HB 1396 by Farrar, increasing penalties for "burglary of a vehicle" to a state jail felony on the second offense. This is an attempt by the House to go back on a deal with the Senate from 2005 that resulted in the current statutory construction (SJF on a third offense with a mandatory incarceration stint in the county jail on a second offense).

If there's one thing I've noticed about such deals at the capitol, it's that deals that satisfy pro-incarceration interests are considered sacrosanct while every deal to limit incarceration is always open to renegotiaton. When discussing state jail felony statutes at the Lege, you'll often hear someone tell you, "Oh, we can't do that, it would go back on the deal we made with prosecutors in 1993." Forget that most of the elected DAs from 1993 are gone now or that deals like this one on burglary of a vehicle can be reneged on two sessions down the line.

As usual, the Legislative Budget Board claims the 24 new prisoners per year and a couple hundred additional probationers will all be free to house and manage, a legislative fiction that allows the bill to pass with no "fiscal note."

Revenge of McLovin
The other remarkable enhancement bill from last night was HB 2411 by Fletcher, which failed on a 90-39 record vote after the chair had already announced its voice-vote approval. The bill would have made it a third degree felony to attempt to use phony documents to get a drivers license, though humorously the bill as it came out of committee would have (erroneously) removed all penalties for that offense. It also made it a third-degree felony to lend your own drivers license or make it available for someone else's use.

Rep. Jim Dunnam came to the back mike to question Fletcher, telling him that his "primary constitutent," his son, it turns out, had called him to say he wanted to keep the language that made it legal to seek an ID under a false name. The reason, he said, was that his teenager wanted to get an ID with the name "McLovin" on it, and this bill as written would allow him to do that. :)

Dunnam was also concerned, he said, about the penalty for making your drivers license available to someone else. He said he was hoping Dan Branch or some other GOP legislator would invite him to visit a country club one day, and he understood you have to give your ID to get a towel, without which he couldn't go to the pool. "My hair doesn't look very good air dried," the Democratic Caucus leader deadpanned. Another rep chimed in that the idea of Rep. Dunnam without a towel brought up "a visual" that disturbed him and suggested a "bracket" for the Waco legislator.

All fun aside, nobody was laughing when, after initially the bill appeared to pass on a voice vote, a record vote was granted and 90 members voted against the legislation. (Okay, maybe there was a small, wry grin on Warren Chisum's face; he seemed to be enjoying the exchange.) Eight others joined the majority in a motion to reconsider and table the bill for good, permanently killing it for the session. (Watch the video here beginning around the 8-hour, 47-minute mark.)

Houston's white-collar crime beat

Tom Kirkendall at Houston's Clear Thinkers has been a go-to source lately on white-collar crime coverage outta H-Town.

Discussing a Fifth Circuit opinion in Enron CEO Jeffrey Skilling's case, Big Tom notes that, "Inasmuch as there is now a clear split between Fifth Circuit decisions and other circuit appellate courts on the scope of honest services wire-fraud, the issue appears ripe for Supreme Court consideration. Indeed, Skilling's petition notes Supreme Court Justice Scalia's recent observation about the need for the high court to take up the issue."

He also describes alleged prosecutorial misconduct in the Skilling case that brings to mind the Ted Stevens prosecutors withholding evidence. Tom writes:

After Skilling's conviction, the Skilling defense team discovered Fastow interview notes that the Enron Task Force had failed to disclose to the Skilling team prior to trial. Among other things, those notes revealed that Fastow had told the Task Force lawyers that he didn't think he had told Skilling about the Global Galactic agreement. The Fifth Circuit characterized the Task Force's non-disclosure as "troubling" in inviting Skilling to file a motion for new trial with the District Court.

HCT also discusses how Sir Allen Stanford's alleged role as a drug informer may have influenced prosecutorial decisions in that case.

Finally, I can only shake my head and wonder with Tom over Galveston federal district Judge Sam Kent's fall from grace, "How did it come to this?"

Op eds support eyewitness ID bill

The Austin Statesman has an editorial today about the Austin PD's adoption of best practices for photo lineups conducted by police, encouraging the Legislature to pass SB 117 (currently in House Calendars) requiring all law enforcement agencies using them to develop written policies:

Both kinds of lineups, photo and live, lend themselves to abuse because relatively few police departments have written, updated policies about how they should be done. Often such procedures are passed along orally from one investigator to another. Bad habits are passed along with good ones. This is an antiquated, unprofessional way to do business.

Some best practices that have emerged include making sure lineups feature people with similar appearances and that the investigators conducting the lineups are unaware of a suspect's identity. The latter is important to prevent investigators from deliberately or unintentionally aiding a witness. The Legislature is poised to spread those procedures statewide with Senate Bill 117, requiring Texas police departments to develop best practices crafted by Sam Houston State University's Law Enforcement Management Institute.

It is a tragedy that Cole, a Texas Tech University student with a bright future, died in prison in 1999 while serving a 25-year sentence for a crime he did not commit. The most compelling evidence against Cole was the mistaken eyewitness identification from the rigged photo lineup.

With better, written procedures, police can decrease or prevent mistakes and errors in photo and live lineups that send innocent people to jail and permit the guilty to escape accountability.

In a similar vein, at the Fort Worth Star Telegram Bob Ray Sanders hopes the House won't spend so much time debating Voter ID that it fails"to pass, without too much tampering, other bills proposed by the Innocence Project of Texas, including one to improve eyewitness procedures as they relate to unreliable photo line-ups. The real 'ID' issue lawmakers should be dealing with is the one in criminal cases," he said.

RELATED: The House just concurred with Senate amendments this morning on HB 1736 by Anchia/Duncan which expands compensation for exonerated inmates. The bill now goes to the Governor. MORE on the compensation bill from the Dallas News editorial page.

Indigency program for 'driver responsibility' fees?

The Texas House yesterday approved Sunset legislation for the Department of Public Safety, and it looks like Sylvester Turner added a couple of good amendments regarding the Orwellian-named "Driver Responsibility" surcharge, which adds a large, multi-year administrative fee on top of criminal penalties for DWI and no-insurance cases. The first one required DPS to make rules establishing an "indigency" program for the surcharge, and the second one required notice and mandated a 75% reduction if they're deemed "indigent" by DPS rule. Much needed.

I'm sure there's technically a budgetary cost to the amendment, but with a 70% non-payment rate on the fee - a situation that's resulted in a staggering 10+% of Texas drivers scooting around the roads with outstanding arrest warrants - the money the state forgoes wasn't really coming in anyway.

Perkins' parole nomination scuttled!

What a shocking outcome: On Sen. Whitmire's motion, with Sen. John Carona's vocal, bipartisan support, the Senate rejected Shanda Perkins' nomination to the parole board on a 27-4 vote, calling her unqualified. Whitmire said he respected Perkins but she should not be on the parole board, which literally considers matters of life and death. Texas has increased pay for the full-time slot, he said, to $95,000 per year to attract the most qualified candidates possible and she didn't fit the bill. He suggested the Governor appoint Perkins to a different slot, possibly a university regent. Watch the debate here beginning at the 2:42:30 mark; here's initial AP coverage.

Senators Whitmire, Carona, and Shapleigh deserve huge credit for speaking out to oppose this nomination. I've never seen a vote quite like that!

MORE: From the Austin Statesman, where Mike Ward reports that "The four votes to confirm the nomination were Sens. Craig Estes, R-Wichita Falls; Troy Fraser, R-Horseshoe Bay; Mike Jackson, R-La Porte, chairman of the Nominations Committee, and Jane Nelson, R-Flower Mound." Several senators who voted for Perkins in the Nominations Committee actually changed their votes. AND MORE: The Fort Worth Star-Telegram says, "It was the first time in decades that a gubernatorial appointee has been rejected on the Senate floor."

Education a solution to crimes from murder to graffiti

After many years of criminal penalty hikes and prison building, I've wondered if we may have reached the limits of crime reduction based on incarceration and if other investments in healthcare (particularly mental health) and education might not do more to reduce crime.

So via USA Today, I was interested to see a new website called the Common Good Forecaster (from the United Way and the American Human Development Project) which makes concrete that connection, estimating improvements in various social indicators thanks to more people getting an education.

Noting that more than one in 5 Texans age 25 and over didn't graduate high school, the site focuses on murder rates as its key crime indicator; Texas' rate is 6.6 per 100,000, compared to 5.9 nationally. By their data, if Texas were to increase the number of people who graduate college from 25-32%, it would reduce Texas' murder rate to the national average (and boost median personal earnings by 5%).

But murder may not be the only area where improved education might reduce crime. Another USA Today piece from yesterday says much of the nation finds itself in the grip of increased graffiti crime, though some cities like New York and Dallas are bucking the trend. Texas and other states have responded largely by increasing penalties for graffiti, but I've argued before that erasing a deficit in fine arts education might be a better approach:

While these bills flail with a hammer at the problem (at this point punching holes in the wall instead of pounding a nail), we see a telling item over at the Houston Chronicle's Texas Politics blog which informs us that "Music, fine arts are seeking more respect" at the Legislature, noting that Texas schools have seen the arts de-prioritized to focus on the TAKS test. As a result, Texas experienced "a drop in middle school fine arts participation from 75 percent student participation in 1999 to 66 percent in 2006."

Perhaps relatedly, during this same period in Texas graffiti crimes soared; the amount of graffiti in Austin, for example, increased 400% from 2002 to 2007. So kids are doing less art in school and more out in the streets. But all legislators can think to do is increase punishments, not artistic opportunities.

In that light, I was pleased to see Sen. Florence Shapiro amend her big public schools bill, HB 3, to require fine arts and physical education credits in the state's minimum graduation requirements. To my mind, boosting fine arts in schools may do more to reduce graffiti by youth than any other public policy we could undertake because it provides an artistic alternative. I don't believe the fact that Texas youth are doing less art in school and more in the streets is a coincidence.

Sen. Shapiro, though, didn't mention graffiti but said what convinced her to add the amendment (which she'd rejected when it was offered previously by Sen. Leticia Van de Putte) was a new study from the Texas Cultural Trust released May 1st about the impact of the creative sector on the economy. Said the press release:

An economic study released today shows that the creative sector of the Texas economy is growing faster and paying higher wages than jobs in the non-creative sector. According to the data, creative sector industries such as digital media, film, music, performing arts, visual arts and arts-related tourism have become a cornerstone of the state’s economy and are on a trajectory for continued growth. ...

The data demonstrates a clear link between the cultural arts, a vibrant creative sector and a strong economy. But the study’s findings also imply that the bright spot in Texas won’t last forever if the state stops investing in arts education and the cultural arts.

According to the report, said Shapiro, by 2016 one in 12 Texas jobs will be in the creative sector.

I suspect that promoting arts in school will have at least as great an effect on graffiti - if not more so - than has boosting criminal penalties, which seems to have been an ineffective approach.

Florida can't pay for new penalties, prisons

More states are rethinking their incarceration policies because of the current economic downturn. Most recently Florida, according to the Orlando Sentinel, has run up against the limits of their ability to pay for state prisons.

With the state short on cash and prison beds, Republicans in the Florida Legislature are being forced to reassess the tough-on-crime mentality that has permeated their politics for years.

Florida's prison population cracked 100,000 this year, and state prison officials expect to need more and more prison beds during the next five years as the number of people incarcerated swells past 120,000. ...

"Our prisons are growing faster than anything else in our state," said Senate criminal-justice budget chief Victor Crist, a Tampa Republican.

Texas would be in the same boat if we hadn't begun reforming the probation system in 2007, and more work is needed to keep the prison system afloat beyond the short-term.

Florida is spending new money for drug courts and diversion programs while putting off opening new prison beds because they can't pay for staffing:

This year's money crunch also prompted lawmakers to abandon plans to bond out $300million in new prison construction in future years.

Rather, to address its prison-population growth, lawmakers ended years of resistance and included plans in the state's $66.5billion budget passed Friday to beef up drug courts across the state. These courts are designed to find programs for drug users instead of dumping them into the state prison system.

Though in many ways Texas is ahead of the Sunshine State on prison diversion, the Sentinel reports that Florida's budget crunch has caused legislators to take a step that our legislators haven't been able to muster: They've actually ceased passing new criminal penalties because they can't afford new prison beds.

Lawmakers also directed circuit judges to keep more nonviolent offenders who commit lower-level crimes out of prisons. ...

Lawmakers shied from the normal bills stiffening sentences for sexual predators, drug crimes and other offenses.

Another bill to crack down on smuggling illegal immigrants into the country passed only after the penalty was watered down from prison time to a fine.

By contrast, Texas keeps passing bills with increased criminal penalties, seemingly oblivious to the long-term financial costs. For some reason, the cognitive dissonance of passing prison diversion bills at the same time they're boosting penalties doesn't seem to phase our legislators.

Heading into the home stretch

A key deadline passed last night at the Texas Lege; as of today, bills filed in the House which have not been scheduled for a floor vote (and do not have a Senate companion) cannot pass, barring their resurrection as amendments to other legislation. By rule, all bills originating in the House must be passed from that chamber by midnight Thursday, at which point the home stretch of the session begins in earnest.

Only 51 bills out of more than 7,000 have been finally passed and sent to the Governor. Most of these bills are dead, though with a few exceptions, for the most part that's probably a good thing.

The pace this session has been achingly slow, and last night was stalled further by a legislator's health crisis when Edmund Kuempel of Seguin was found unconscious, not breathing and with no pulse in a capitol elevator. He was revived by fellow legislator Dr. John Zerwas and is reportedly in a "stable, guarded condition" at a local hospital. (UPDATE: He is reportedly in a medically induced coma.) Kuempel is an affable, good humored fellow to whom I wish a full and speedy recovery.

Parole board vacancy: Insert dildo joke here

(UPDATED) The full Texas Senate today will consider the nomination of Shanda Perkins, the anti-sex toy crusader from Burleson who Governor Perry has nominated to serve on the parole board despite having no apparent experience regarding criminal justice besides the effort to ban dildos from Johnson County. (I know, I know, it can't be done - they're indigenous.) The Fifth Circuit Court of Appeals later overturned Texas' statutory sex toy ban.

Hard to know what to say about this that's not been said before, so see prior, related Grits posts:

• More disapprobation for Shanda Perkins nomination
• Senate should reject sex toy activist for parole board
  
• Nomination of anti-sex toy activist to parole board draws more criticism
• Governor appoints anti-sex toy crusader to parole board

Perkins says her role in the sex-toy prosecution was overblown and she only passed around copies of the law she thought should be enforced and tried to pass a resolution to ban short skirts worn by her nemesis, the dildo saleswoman, to local Chamber of Commerce events. (A commenter on another blog noted that we've heard this song before.)

Normally sex toys don't come up much in the nominations process so at least her appointment has provided some comic relief, but for those whose lives will be affected by Perkins' decisions, it's no laughing matter. There's a time and a place for everything, including dildo jokes, but you'd think an appointment to the parole board wouldn't be one of them.

UPDATE: Who'da thought? Mike Ward at the Austin Statesman says her nomination appears to be in trouble:

“She appears to be toast. Burned toast,” said one senator.

By several reports, the Senate’s 12 Democrats are lined up to not confirm Perkins’ nomination and two Republicans said privately the are among several GOPers who also oppose it.

MORE: I'd have never anticipated this:

The Texas Senate has blocked 1 of Gov. Rick Perry's nominees to serve on the state board of pardons and parole over concerns she is unqualified for the job.

The 27-4 vote Wednesday to send the nomination of Shanda Perkins of Burleson back to committee was a resounding bipartisan rejection of the former banker.

Open meetings laws a First Amendment violation?

Here's an unfortunate and potentially devastating new ruling by a 3-judge panel of the 5th Circuit Court of Appeals that deserves to be overturned en banc, via the Chicago Tribune:

Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws.

A ruling last month by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit that city council members in Alpine, Texas, filed against the local district attorney and state attorney general after two members were charged with violating the state's open meetings law. The council members allegedly violated the law by discussing a city project in an exchange of e-mails. ...

Texas Attorney General Greg Abbott's office says the 5th Circuit's ruling could serve as a precedent for striking down any open meetings law that doesn't pass that test.

"Until the panel's ruling," Abbott's office wrote, "no court had ever held that any of these statutes is a content-based restriction on speech subject to strict-scrutiny review under the First Amendment, nor have these statutes been struck down -- in whole or in part -- for violating the Amendment's free speech protections."

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."

Reliance on fees left drug courts underfunded

According to the Killeen Daily Herald ("Bell County making progress on drug court," May 12), the Lege did not provide enough funding for drug courts mandated by the 80th Texas Legislature in 2007, putting some counties in the position of possibly losing state probation funds:

A mandate came out of the last legislative session, requiring counties with a population of more than 200,000 to create a drug court.

Bell County received $100,000 for the program, but [County Judge Jon] Burrows said this will not cover all the expenses incurred, for which they originally requested $240,000.

The county applied for $261,000 in state grants for the next fiscal year.

If the county does not implement a drug court, the state would withdraw funding from adult probation programs.

Burrows said the risk of not having state funds for those services is enough incentive to implement the drug court, even though he and other officials said a drug court was not needed in Bell County.

"Our judges were already doing the same thing a drug court would do," Burrows said in an interview last month. "This is another unfunded mandate on us for a program we didn't ask for, and our judges said we don't need."

Burrows said he contacted the governor's office on criminal justice, which told him the funding mechanism in the statute failed to generate enough funds for all Texas counties.

Todd Jermstad, interim director for Bell County's judicial district Community Supervision and Corrections Department, created Bell County's drug court plan with Judge Rick Morris of the 169th District Court.

"There are still grants that can be disbursed, that free up funding for this year through August," Jermstad said. "The biggest need is for outpatient treatment, but the state did not provide enough money for that."

Drug court will begin as soon as the county receives grants for it.

To me, this shows why it can be problematic to rely on probationers' fees to pay for criminal justice programming when they're already overloaded and too high. Paying for outpatient treatment is much cheaper than sending more folks to prison (which is paid for out of state general revenue), so in that sense it's penny wise but pound foolish to not do a drug court because probationers' fees won't cover it.

We'll see what the conference committee on the budget comes up with, but I'm somewhat concerned that the 81st Legislature hasn't included enough resources to make up this shortfall and pay for necessary treatment programs. That leaves new Texas stimulus funds for law-enforcement grants as the main available source for making up that amount. That money will be distributed entirely at the Governor's discretion.

Reader poll: Most think Keller gone by year's end

Taken collectively, IMO Grits readers pretty accurately assessed in a poll last week the relative likelihood that Court of Criminal Appeals Presiding Judge Sharon Keller will be removed from the bench for official misconduct by the end of the year.

Somewhat surprisingly, two-thirds of readers think Keller will no longer be a judge by year's end, though a plurality (34%) think nothing will happen to her. I agree that if a bettor were laying money on the subject, that outcome enjoys the best odds. Slightly fewer (28%) think she'll be removed by the Commission on Judicial Conduct. Nearly as many (26%) think Judge Keller will resign (though I suspect she's got too much chutzpah for that). Just 11% believe the House of Representatives will impeach her.

That sounds like about the right order if we're ranking the possibilities. Most likely: She gets away scot-free. The best chance for Keller's ouster is likely the Commission on Judicial Conduct (which has already instigated removal proceedings) or her own resignation, with impeachment remaining an outside shot.

'Worst of the worst'? House will consider 'law of parties' in capital cases

Should the death penalty be applied only to the worst of the worst, or also to those who associate with them?

That's a question the Texas House will answer today when they take up and consider legislation to eliminate the death penalty for accomplices who didn't kill anyone based on the "law of parties." The issue rose in prominence last year when Governor Rick Perry commuted Kenneth Foster's death sentence under the law of parties and called on the Legislature to reconsider the issue of whether accomplices in capital murder cases should receive separate trials.

The bill up today would require an accomplice in a capital murder case to stand trial separately from the actual killer and eliminate the death penalty for people who didn't personally murder anyone. As Scott Cobb described HB 2267 by Hodge on Burnt Orange Report:

HB 2267 would require separate trials for co-defendants in capital trials in which the death penalty is sought and would prohibit the state from seeking the death penalty for people who do not kill anyone but are convicted under the Law of Parties. It is fundamentally unfair to sentence someone to death, like Kenneth Foster was, if they did not kill anyone. The death penalty is intended to be reserved for the worst of the worst killers. People who do not themselves kill anyone are not only not the worst of the worst, they are not even killers.

The Law of Parties allows people who "should have anticipated" a murder to receive the death penalty for the actions of another person who killed someone. A person sentenced to death under the Law of Parties has not killed anyone. They are accomplices or co-conspirators of one felony, such as robbery, during which another person killed someone. However, in some cases a person can end up on death row under the law of parties even though they did not even know their co-defendant had any intention to hurt or even rob the victim, which is what happened to Kenneth Foster. A person who did not kill anyone, or intend anyone to be killed, should not be executed for the actions of another person.

Non-killers convicted of capital murder under the law of parties could still receive life without parole, as I read the bill, but the death penalty would be off the table. See a good discussion of the legislation and its pros an cons from the House Research Organization.

Relatedly, see also an open letter I wrote last year to the Governor and the parole board regarding Kenneth Foster and the law of parties, which declared in part that, "Increasingly I've come to believe that, if the death penalty is ever abolished, at least in this state, it will not be because its opponents succeed politically but as a backlash to its overzealous implementation." In that sense, arguably, this legislation does more to preserve the death penalty than to limit it. I hope they approve it.

House would put stop to red-light cameras

Here's some surprising but welcome news: The Texas House on Friday amended its big transportation sunset bill to ban new contracts for red light cameras and to require cities to phase them out as current contracts expire. According to the Amarillo-Globe News ("Red light cameras dealt blow," May 9):

[Bill sponsor Rep. Carl] Isett has long opposed the use of the cameras at busy intersections - including at five in Amarillo - on grounds that they are money-making operations for local governments (the average fine is $75) and unconstitutional because the program doesn't allow motorists to fight charges that they ran a red light.

Isett has pushed this legislation for several years but usually has been met with opposition from lawmakers representing large metropolitan areas such as Dallas, Houston and San Antonio, which are municipalities that use the cameras. Dallas recently reported that it made more than $3 million ticketing motorists who the automated devices caught running red lights.

But this time that bloc of big-city lawmakers didn't hold the influence it once did on the issue.

The authors were pleased.

"Let's be honest with the public," Elkins said. "This is all about generating revenue for the cities, not about public safety."

In Houston, for example, at intersections using red-light cameras, accidents, mainly rear-end collisions, increased by 118 percent, Elkins said.

If the Senate approves the Elkins-Ortiz amendment in Isett's transportation bill - the TxDOT reorganization is a legislative priority this session - the phasing out of red-light cameras would be gradual, Elkins explained.

For starters, TxDOT, not local governments, would have jurisdiction over the devices. In addition, starting June 1, no more red-light camera contracts would be approved in the state, and existing contracts would not be renewed.

Carl Isett and Gary Elkins deserve huge kudos for their stalwart opposition to the cameras over the years on personal liberty grounds, and I'm glad to see them working across party lines with Ortiz and others to get rid of them. The amendment passed on a 107-36 vote.

In addition, they've crafted a particularly clever approach in case the Senate refuses to keep the amendment on. According to KBTX out of Bryan:

The Senate still has to look at the issues. The authors of the bill apparently have a back up plan if the Senate doesn't see Red like the House did.

Ortiz and Elkins have added this line to their amendment: "[TxDOT] by rule shall require that the change interval in a light equipped with a photographic traffic signal enforcement system must be at least one second longer than the minimum change interval established in accordance with the Texas Manual on Uniform Traffic Control
Devices."

Ohio and Georgia have enacted longer yellow requirements to great effect. In Georgia, seven cities known to have lengthened yellows since January have seen violations decrease by 70 to 80 percent. A Texas Transportation Institute (TTI) study documented a 40 percent decrease in collisions after testing the benefits of increasing the yellow warning given to motorists before an intersection signal changes from green to red.

Requiring cities to lengthen yellow light lengths will reduce revenue dramatically for red light camera schemes and likely cause cities to eliminate them on their own. Everyone says they're about safety, but those data are inconclusive while what cities seem most excited about everywhere they're implemented is revenue from tickets. When that declines 40-80%, the cameras won't look nearly so appealing.

RELATED: Paul Burka dislikes a lot of the other stuff that made it into the DoT Sunset bill.

Exoneree compensation bill passes Texas Senate

The Texas Senate today passed the Tim cole Act to improve compensation for false convictions and create a mechanism for posthumous exonerations. Here's a press release received via email from the Senate bill sponsors, Robert Duncan and Rodney Ellis:

Senate Passes Tim Cole Act to Improve Compensation for Wrongfully Convicted and Their Families
HB 1736 ensures justice for those posthumously exonerated

(Austin , Texas ) The Texas Senate today passed HB 1736, the Tim Cole Act, legislation to improve compensation for the wrongfully convicted and ensure justice for wrongfully convicted Texans who have died in prison.

The legislation, by Senators Robert Duncan (R-Lubbock) and Rodney Ellis (D-Houston), provides compensation for family members of wrongfully convicted Texans who have been posthumously exonerated, and increases compensation levels for other exonerees.

"The Tim Cole case should serve as a wake-up call to Texas ," said Senator Ellis. "It is time to get our house in order and enact reforms that, wherever possible, can help avert miscarriages of justice before they happen."

"It is a tragedy that brought House Bill 1736 to the Senate floor today, but the grace and dignity that Mr. Cole's family demonstrated while leading this important cause would surely make him proud," said Senator Duncan. "As a result of their efforts, Tim Cole's untimely death was not in vain. Criminal justice in Texas will be more fair and compensation for those wrongly convicted will be more adequate because the Legislature responded to Mr. Cole's terrible and sad struggle."

HB 1736 would:

• Increase the lump sum compensation for all exonerees from $50,000 to $80,000 per year of incarceration, including time spent in city or county jail. Current compensation only applies to time in a TDCJ cell, but not another kind of cell.

• Allows the lump sum compensation to pass to the family in the event the innocent person dies before release, as Timothy Cole did.

• Allows lump sum compensation of $25,000 per year spent on parole or registered as a sex offender.

• Creates lifetime annuity payments to the exoneree based on a present value of the lump sum compensation, annuitized using a 5% interest rate and payable in equal monthly installments using actuarial factors.

• Provides up to 120 hours of free tuition if the claimant desires to attend a state college.

• As under current law, a person who receives a subsequent felony conviction loses their eligibility for compensation. Any annuity payments would cease.

• Any person who accepts state compensation must give up any civil suit against the state, municipalities or other parties.

Tim Cole was a veteran, loving son, and student at Texas Tech University when he was wrongfully convicted of rape in 1985. He maintained his innocence until he died in prison of an asthma attack in 1999. The real rapist, Jerry Johnson, attempted to confess as early as 1995 and was finally successful at getting the attention of authorities in 2007 after he sent a letter to Tim Cole's mother. In 2008, DNA testing exonerated Tim Cole and implicated Mr. Johnson.

On February 4, 2009, the House of Representatives and the Senate passed resolutions honoring Tim Cole. On February 6, Cole was officially exonerated when Travis County District Judge Charlie Baird announced "to a 100 percent moral, factual and legal certainty" that Timothy Cole did not commit the crime which sent him to prison.

"I offer my sincere condolences and deepest sympathies to Tim Cole's family for the 13 long years he was forced to suffer in prison for a crime DNA proved he did not commit, and for the decade plus they fought to clear his name,' said Senator Ellis. "I hope that this legislation will help them finally find the peace they have so difficultly earned."

Now HB 1736 goes back to the House which is expected to concur with Senate amendments, then the bill heads to the Governor's desk. Congrats to the Cole family and Texas exonerees - IMO this is a landmark achievement.

MORE: From the Lubbock Avalanche Journal, the Dallas News, and the Austin Statesman.

Tanking economy prompts rethinking incarceration

As states struggle with paying for expanding prison populations in a tanking economy, Texas' 2007 diversion reforms were cited as a model in a New York Times editorial today titled "Shrinking the Prison Population":

New prison sentencing and re-entry policies are already taking hold in several states, thanks in part to work by the Council of State Governments’ prison policy arm, the Justice Center, with the support of the Pew Charitable Trust’s Center on the States.

Their results have been especially impressive in Texas and Kansas, law-and-order states that were facing huge increases in their prison populations before they turned to the Justice Center for analyses and policy suggestions. Last month, representatives from both states testified about their experience before a House appropriations subcommittee.

State officials said that after studying the problem they found their prison populations were being driven up, not by crime, but mainly by breakdowns in their parole and probation systems.

Simply put, they were sending too many people back to jail. Many were drug-addicted or mentally ill offenders who could be safely dealt with in community programs.

Legislatures in both states decided to expand community-based drug treatment and mental health services, and encouraged localities to provide closer supervision for released inmates. The changes, put in place two years ago, have yielded especially strong results in Texas. State officials said that the new system had already reduced parole revocations by an astonishing 25 percent and helped the state avoid a projected increase in the prison population that would have cost the Texas treasury hundreds of millions of dollars.

Of course, Texas still can't afford to pay for the prison system we've got, but without the initiative described in the op ed, the problem would by now have reached crisis levels. See this analysis from the Justice Reinvestment Project on the impact of Texas' 2007 reforms (pdf).

Relatedly, in Ohio they're debating whether to reduce the prison population abruptly by more than 10% because they can't afford to pay for incarceration. Doc Berman points to news from the Buckeye state that:

With a near-record 50,919 inmates behind bars as of May 4, Gov. Ted Strickland said he has no choice but to start releasing people because the state can't afford it. His proposal isn't just a scare tactic.

Ohio lawmakers are considering sweeping prison reform in which prisoners will be sent to live in halfway houses in communities -- or be paroled to a house down the block. Many more will never set foot in a prison under a proposal to amend sentencing laws so some crimes are no longer considered serious enough to warrant prison.

Strickland predicts his proposed changes could reduce the prison population by 6,736 indefinitely and save state taxpayers almost $28 million per year.

Mass incarceration is a rich country's game, with the United States accounting for 5% of the planet's population but 25% of its prisoners. Forcing states to rethink draconian incarceration policies could turn out to be a silver lining amongst the economic storm clouds. I predict that over the next few years, with the economy feeling the pinch, more states will be forced to get serious about reducing prison populations, which were already too large and expensive before the economy dipped.

Allen Stanford: DEA snitch?

Did the US government tolerate fraud, money laundering and white-collar crime by Houston billionaire Allen Stanford because he was a snitch for the DEA? Reports the Press Association today:

Stanford guaranteed himself against fraud investigations by working with the US DEA, turning over details of money-laundering from Latin American clients from Colombia, Mexico and Venezuela and Ecuador, the corporation claims.

"We were convinced that Stanford's bank attracted millions of narco-dollars, but it was very difficult to get the evidence to nail him," sources apparently told Panorama.

"The word is that Stanford has been a confidential informer for the DEA since 99."

This is exactly the kind of scenario criticized by Prof. Alexandra Natapoff, arguably the nation's leading academic expert on the uses and abuses of confidential informants, who maintains that snitch agreements can actually produce and tolerate crime instead of preventing it. As she wrote in 2006 in the San Francisco Chronicle ("California reconsiders snitching," Nov. 19, 2006):

Unlike the law-abiding citizen who calls 911 to report a crime or who testifies at trial, criminal informants face prosecution for their own crimes, and thus have deep incentives to lie. If a snitch can convince the police officer or the prosecutor that his information is useful, he may avoid arrest, avoid the filing of serious charges or obtain a reduced sentence.

Snitches may also receive cash, drugs, permission to buy drugs, forgiveness for prior crimes and lenience for new crimes, even those committed in other jurisdictions. In return, law enforcement agents obtain information and convenience: They avoid having to expend time and resources prosecuting the snitch.

These secret deals between the government and criminals can last for years, and they can be very costly to the public welfare.

In the worse cases, informants continue to commit new crimes, while government handlers may turn a blind eye as long as the informant is useful.

This makes snitching a kind of "get-out-of-jail-free" card.

That's apparently what may have happened in the Stanford case. In retrospect, though, the crimes the feds tolerated arguably dwarfed any offenders who Stanford's information helped finger.

Related Grits posts:

• Natapoff: Snitching can be "crime producing and corrupting"
  
• Snitch rules protect lying DEA agent
  
• Congress should restrict criminal informant use to prevent false convictions, police corruption
• Snitch whose crimes were tolerated by feds will be extradited to Mexico
  
• DEA snitch data lost
  

Inmate used as enforcer by corrupt Montague County Sheriff

The indicted Montage County Sheriff died last week, unfortunately before being held to account for his numerous crimes against inmates, female informants and the state. The Fort Worth Star-Telegram today has an extended story based on interviews with inmates, guards and other involved parties ("On Sheriff's watch, North Texas jail became den of drugs and debauchery," May 9). Here's a notable excerpt:

Though it remained largely hidden from view, lawlessness and debauchery in the jail continued and intensified, according to interviews with authorities, jailers and prisoners. Luke Bolton’s story, authorities say, is largely consistent with discoveries of state and federal investigators.

Bolton said that in 2006, a few months after his arrest for assaulting his girlfriend, jailer Calvin Morales approached him with an offer that came "from the very top." Keating wanted a misbehaving prisoner to be taught a lesson.

"It was a hit, in other words," Bolton said in the recent interview. "He said, 'If you handle this, it’s two packs of cigarettes.’ They moved [the other prisoner] to [Bolton’s cell]. I whipped him down and stomped on his head.

"Morales [and another deputy] were standing at the window there outside of Cell 19b, and when they saw the blood, they came in and said, 'It’s over.’ They pulled him out, bandaged him up and put him in another cell."

Bolton said he was handed the promised packs of Marlboro reds within minutes, itself a violation of state law. In the months to come, Bolton said he was involved in 17 jailhouse fistfights, almost all of them at the request of the sheriff, either directly or through guards.

Bolton described a jailhouse drug ring that included both prisoners and jailers.

"We were distributing it throughout the jail . . . meth, marijuana, cocaine . . . and the sheriff was getting his 10 percent," Bolton said. "I was told this by Calvin Morales, that the sheriff was getting his 10 percent."

Getting creative on polygamy prosecution

It being Mother's Day, let's turn our attention to the legislative aftermath of the 2008 Great Eldorado Polygamist Roundup, where more than 400 children were taken from their parents at a West Texas ranch run by a polygamous Mormon sect, the Fundamentalist Latter Day Saints (FLDS).

This time last year, FLDS children were separated from their mothers based on a creative legal ruling that the parents' religious beliefs constituted per se abuse; appellate courts later overturned those interpretations and ordered the children's return. Now the Texas Legislature is flexing its own creative muscles trying to salvage prosecutions from this fiasco.

Legislation to lengthen the statute of limitations on bigamy passed the Senate and will be heard this week in the House Criminal Jurisprudence Committee. Apparently, since authorities couldn't prosecute polygamists at the YFZ Ranch in West Texas as they'd prefer, they now want to give prosecutors up to seven years to pursue bigamy cases, ten if they involve a minor (although no victims are clamoring for prosecutions). The current statute of limitations for bigamy is just three years, as is the case for most felonies.

A different House committee already heard related but much broader legislation that has not moved nearly so far along in the process, so if this gets to the floor, I'd expect Reps Harvey Hildebran and Drew Darby to try to load it up with all the extra mischief in their bill. Sometimes you really have to get creative if you want to use the force of the state to impose your personal moral code on others but can't figure out how to do so within the constraints of their constitutional rights.

The blogger at Sore Toes and a Bleeding Heart yesterday blogged about the creative lawmaking that changed Texas' marital laws in 2005 to target polygamous Mormons who'd recently moved to West Texas. "Toes" pulled the money quote of the hearing from state Rep. Harvey Hildebran, who told the committee that any abuse report "has to come from inside, so we’ve got to be a little bit more creative in how we get the report."

Given what transpired after that, with more than 400 children seized on the basis of a hoax phone call, this is one of those quotes that makes you go, "Hmmmm." After all, the search warrant on which the raid was based was full of official "creativity."

Over at The Common Room, the Headmistress Zookeper further analyzes details from the original affidavit used to obtain the YFZ search warrant, noting that we now know a worker at a women's shelter suggested the name "Dale Barlow" to Rozita Swinton, the hoax phone caller (who claimed she'd been married three years but didn't know the name of her husband), after finding it on an Internet search while they were talking. The Headmistress also points out that Rozita's claim to have been treated at the local hospital was checked out by the Texas Rangers before the raid but couldn't be confirmed.

"There doesn't seem to have been any single identifying information in Ranger Brooks' application for a search warrant that he or somebody else didn't find via googling," she concludes. In other words, as Grits first suggested three days after the raid, the Great Eldorado Polygamist Roundup was a "setup job."

None of this inspires confidence. What's needed at this point to reestablish trust in the system are fewer "creative" efforts and more respect for the law and individual rights by Texas' political leadership.

More media focus on Tim Cole's posthumous exoneration

CBS Evening News will air a story on Timothy Cole's false conviction and posthumous exoneration tonight, Saturday, May 9^th, at 5:30pm CST. Check local listings on your CBS local station. (UPDATE: Here's the link.)

See also a Mother's Day themed editorial in the San Antonio Express News on the Tim Cole case, in which the author writes, "Texans ought to be outraged enough by what happened to Cole to take a hard look at the state's criminal justice system and take tangible steps to assure that justice, not convenient convictions, is sought at every turn."

RELATED: When Dallas DNA exoneree Johnnie Lindsey appeared last week on the daytime TV show The View, he said he and his fiance' weren't getting married yet because he couldn't find a job. The Dallas News' Crime Blog reports that since then he's received three different job offers. Congratultions, Johnnie!

AND MORE: Rounding out the current media flurry regarding false convictions in Texas, Radley Balko at Reason reviews the new movie, American Violet, and discusses the TV series Dallas DNA.

'Writ Writer' film wins ABA award

Congratulations to Susanne Mason for winning a "Silver Gavel" award from the American Bar Association for her documentary film, "Writ Writer," chronicling the history of Texas prison inmate and famed jailhouse barrister, the late Fred Cruz. The film aired on PBS' award winning Independent Lens series and earlier this year was screened at the Texas capitol.

Legislature 'picking on kids'?

Christy Hoppe at the Dallas News last week noticed a trend at the Texas Legislature of the Lege injecting itself in the role of parent ("Are proposed laws at the Texas Legislature picking on kids?," May 3):

Lawmakers don't want kids driving after 10 p.m., buying cigarettes or climbing into tanning beds. ...

Teenagers appear to be a target for lawmakers this year; everyone knows they need protection from their own self-destructiveness, and they can't vote. Lawmakers cite safety issues, but a few, such as [Jodie] Laubenberg, are starting to raise questions about parental rights as several measures move through the Legislature.

They include a number of restrictions on drivers under 18, including no text messaging or talking on cellphones without a hands-free device. Legislators also apparently believe that no good can come after 10 p.m. They propose that those 17 or younger shouldn't be driving after that hour – a change from the current midnight curfew.

"None of us would want to target any age group, but 17 and younger are inexperienced and still developing judgment and are prone to danger," said Sen. John Carona, R-Dallas, whose bill with the 10 p.m. curfew has cleared the Senate and is pending in the House.

"The Legislature continues to try and find the appropriate balance between good policies and parenting," Carona said. "Government couldn't and shouldn't try to raise their kids, but where and when we can, we should find appropriate measures to protect them."

House Transportation Committee Chairman Joe Pickett, D-El Paso, said he favors the restrictions on driving while texting or phoning for young motorists, although he's not sure the earlier curfew is going to win House support.

"While I know it's like we're attacking young people, it's really helping them," Pickett said. "It's not that we want to be restrictive."

Pickett's last comment sums it up, doesn't it? It reminds me of Ronald Reagan's famous quip that the scariest words in the English language are "I'm from the government and I'm here to help." Pickett is certainly right that it's "like" they're "attacking young people." That's how the young people see it, no doubt, and perhaps also their parents whose decisions are being usurped.

One recalls that when the United States attacked Iraq, President Bush said we were "helping" them, too. (Note to policymakers: "Helping" and "attacking" are not synonyms!)

Why it should be up to the government and not their parents whether a teen wears a cowboy hat or a helmet in a rodeo or uses a tanning bed is beyond me. As with many new laws passed each session, much of this falls under the heading (in my book, anyway) of "none of the government's damn business."

Guilty plea from corrupt border Sheriff

Updating a story covered here on Grits last fall, StoptheDrugWar.org brings this news from a high-profile South Texas corruption case:

In San Antonio, a former Starr County sheriff pleaded guilty last Friday to one drug trafficking charge for assisting the Mexican Gulf Cartel as it smuggled drugs through his border county. Former Sheriff Reymundo "Rey" Guerra was arrested last October after he was one of 29 people indicted by a federal grand jury. He admitted passing information to an informant whom he knew had gone back to work for the cartel in return for payments of $2,000 to $3,000. He also admitted passing information about who tipped off authorities in a raid that resulted in the seizure of 314 kilos of pot and one kilo of cocaine. Guerra pleaded to one count of conspiracy to distribute narcotics as part of a plea deal that saw two other charges dropped. He faces from 10 years to life in prison when sentenced in July. Until then, he remains free on bond.

Austin PD to create eyewitness ID policy

The stories of dozens of innocent men falsely convicted by mistaken victims and eyewitnesses in photo lineups are beginning to spur law enforcement to become more professional in this area.

The Texas Legislature is responding - legislation to require law enforcement agencies to have written eyewitness ID policies yesterday passed out of the House Criminal Jurisprudence Committee after already clearing the Senate. Now, Austin PD is taking the hint and creating a written policy on their own without waiting for legislative prompting. The Travis County Sheriff may follow suit, reports the Austin Statesman ("Austin police developing photo lineup policies," May 8):

Austin police officials said detectives use photo lineups dozens of times each month in cases that include homicides, sexual assaults and burglaries. Investigators use live lineups less frequently, although the department has written policies for how to do so.

Austin police Lt. Mark Spangler, who is charge of drafting the new policy, said detectives have historically relied on techniques used by previous investigators that have been passed from generation to generation.

Under those procedures, a lead investigator working on the case generally compiles a photo lineup involving the suspect and five others who have similar physical characteristics. In most instances, Spangler said, that same investigator also administers the lineup to victims or witnesses.

Spangler said the new policies probably will require that an investigator not associated with the case administer the lineup.

Austin defense attorney Bill Hines said he commends the police effort to adopt photo lineup policies. However, he said he thinks it is "embarrassing and shameful that they are only now coming into modern criminal jurisprudence."

These are important changes. The policy also needs to require that the witness be warned that the suspect may not be in the lineup, and that a failure to make an ID will not end the investigation. Investigators conducting lineups should also record a "confidence statement" from the witness declaring how sure they are of the identification in their own words.

Earlier this year Dallas PD decided to reform their lineup policies, mandating "blind administration" of lineups and that pictures be shown to a witness sequentially instead of as a group - a practice which further reduces chances of error.

Edwin Colfax of the Justice Project, who has authored an excellent public policy report (pdf) analyzing eyewitness ID policies at Texas police agencies, likes to say that eyewitness ID evidence should be considered more like "trace evidence" than some sort of evidentiary gold standard, and like other trace evidence, if not gathered carefully using correct procedures can become tainted, discriminatory and unusable.

Kudos for Austin PD for taking the initiative before the Lege forced them to do it.

See related Grits posts:

• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures
• Eyewitnesses in staged test only 8% accurate
• When eyewitnesses are wrong
  
• Exonerations educate courts, Lege on innocence
  
• 5th Harris County DNA exoneration an indictment of eyewitness IDs
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Emotional pair of DNA exonerations argue for changing eyewitness ID procedures
• CCA Integrity Unit: Eyewitness ID reform should be top innocence priority

Harris Sheriff can't spend stimulus money on guns and gadgets

The infusion of federal stimulus money for law enforcement purposes raises significant questions about oversight of those funds and how best to spend them, so I'm glad to see the Harris County Commissioners Court setting the proper tone by rejecting proposals from the new county Sheriff to buy the department machine guns and lease a helicopter. According to the Houston Chronicle ("Harris County cuts Sheriff's wish list," May 5) :

The Harris County Commissioners Court on Tuesday tossed out almost all of Sheriff Adrian Garcia’s requests for federal stimulus funding, instead allocating his office $6.2 million for electronic inmate medical records.

The court balked at Garcia’s original plan to spend $6.6 million leasing a helicopter and another $550,000 buying equipment, including a covert surveillance van and machine guns for boats patrolling the Houston Ship Channel.

The sheriff’s revised proposal included a scaled-back helicopter program, but called for spending most of the money on computer systems to better manage inmates and jailers. Just $1.5 million would have gone toward electronic medical records under that plan.

That was a smart move by Harris County Commissioners. I'm glad to see somebody in Houston has figured out that job one for the Sheriff is running an overcrowded jail with 10,000 inmates. Fixing the jail's inmate record systems is a much more pressing concern than buying fancy surveillance equipment or adding machine guns to patrol boats in the harbor.

All over the state, counties are making similar decisions right now about what to do with federal stimulus money, and my guess is we'll see a lot of it squandered buying guns and gadgets instead of spending it on fundamentals. That would be a waste and a shame.

Larger cities may get needle exchange option

Excellent news! SB 188 - authorizing local-control needle exchange programs in Texas' largest cities and counties - passed out of the House Public Health Committee this afternoon on a 7-3 vote! Outstanding!

Voting in favor of the legislation, according to the needle-exchange focused blog, Sifting the Haystack, were: Garnet Coleman, John E. Davis, Veronica Gonzales, Susan King (a professional nurse), Elliott Naishtat, Vicki Truitt, and Doctor John Zerwas. Three of those - Davis, Truitt and Zerwas - are pickups from the House floor vote in 2007 that authorized a pilot needle exchange program in San Antonio.

Now SB 188 heads to the Calendars Committee, where I'm pleased to see that the Chairman, Brian McCall, was actually one of the authors of a companion needle exchange bill - HB 272 by Ortiz. That makes me optimistic SB 188 will get a vote on the House floor. Once there, SB 188 stands an excellent chance of passage. The Bexar County pilot last session passed on a 71-60 vote, so many members have already gone on the record in favor of the idea.

RELATED: Needle exchange, treatment and prevention.

Florida passes compromised snitching reforms

While legislation in Texas is moving along to protect innocent defendants by requiring corroboration to obtain a conviction based on testimony from jailhouse informants, Florida's GOP Governor Charlie Crist just signed a bill (discussed here on Grits previously) to protect the rights of informants themselves. According to the Tampa Bay Times:

The legislation is named for Rachel Hoffman, a Florida State University grad who was murdered while on an undercover drug buy for Tallahassee police a year ago today. ...

"Rachel's Law" calls on agencies to take into account a person's age and maturity, emotional state and the level of risk a mission would entail. Police also would be barred from promising an informer more lenient treatment; only prosecutors and judges can do that.

Not included are several provisions [Rachel] Hoffman's parents said could have prevented their daughter's death, including barring anyone in a drug treatment program, as 23-year-old Rachel was, from going on undercover drug buys. (more background here)

"This bill represents a great consensus," Crist said, flanked by the bill sponsors, Rep. Peter Nehr and Sen. Mike Fasano. "It’s probably not everything everybody wants. But it’s an awful lot of what is good and right and just about making sure that people are more safe."

There are a lot of questionable and disturbing aspects of informant use and it's interesting to see two large, southern states addressing different parts of the problem simultaneously. Maybe in two years here in Texas we can come back to address some of the problems they were confronting this time around in the Sunshine state.

Here's the text of the enrolled version of the Florida bill. My favorite part: Law enforcement must "Provide a person who is requested to serve as a confidential informant with an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant."

However, while establishing a number of new protections, the bill also includes a disappointing caveat that "any failure to abide by the act does not create any additional right enforceable by a defendant in a criminal proceeding." (In essence they had to make the same compromise to pass the bill as was made on Texas' eyewitness ID legislation, which in its current form specifically exempts failure to abide by eyewitness ID procedures from falling under state's statutory exclusionary rule.) I'm not sure exactly how that would work if a defendant is denied the right to counsel before entering a snitch agreement, as now required in Florida law.

Florida's snitch-protection legislation passed unanimously in both chambers. Watered down or not, the fact that it passed and was signed by the Governor in a GOP-controlled state reinforces my sense that the issue of informant-based corruption of the justice system has sturdy, bipartisan legs.

BLOGVERSATION: At the South Carolina Criminal Defense Blog, Bobby Frederick writes:

If a person is trying to get clean or stay clean, they cannot repeatedly go into houses and make drug deals - sooner or later they will use and their recovery will be blown to bits. Many narcotics officers do not care if you stay clean or not - you are a tool that they use to do their job for them. Many narcotics officers do not care that you are placing yourself in danger - again, you are a tool that they require to make drug arrests. Rachel Hoffman's death in Florida, although tragic, was representative of the ethics problems that narcotics officers often ignore in their work and thankfully brought national attention to the problem.

Counties seek help on jail crowding, diversion

Two stories today related to county jail overcrowding caught my eye:

In my hometown of Tyler, Smith County officials have decided to forego a fourth vote on a new jail for the time being, with County Judge Joel Baker declaring, "Now is not the best time to bring up the bond option, so we have to find other ways to stop the bleeding."

That's good news. Jail proponents got their butts whipped in Smith County elections three years running, so it's definitely time they gave it a rest.

There ARE ways for Smith and other counties with overcrowding problems to reduce the "bleeding," though, if courts and jails utilize more diversion programs, focusing use of the jail more on safety concerns and less on money making ventures.

Meanwhile, the Dallas News today has an editorial about their jail's problems calling for the creation of a new position at the Texas Commission on Jail Standards to consult with counties about jail diversion. The paper opined that an independent view would be more constructive than a consultant beholden to the commissioners court who might tell them whatever they want to hear. (I tend to agree, though I think TCJS might need to be budgeted more than one person for that role if they're going to cover the entire state.)

The opinion piece was timed to coincide with a TCJS meeting in Austin today. Wrote the Dallas News editorial board:

The immediate problem is today in Austin, where several Dallas County officials will attempt to convince the jail commission board that they're doing all they can to reach compliance.

In immediate jeopardy is a 15-year-old variance that allows the county to exceed bed limits in the jail tower with serious, persistent fire-safety problems. If the board isn't convinced, it could order the county to move about 900 inmates out of the North Tower. County Judge Jim Foster estimates the cost at $4 million a month.

"They're tired of being told what we're doing," he says. "They want results."

Our suggestion is that they get behind Munoz's program specialist plan, which so far has survived the budget knives. If county commissioners want to add another consultant on top of that, fine. As many fresh eyes as possible for an increasingly tired problem.

RELATED: Here's a list of the 5 counties currently sending the most overflow inmates to other jails and private contractors:

• Harris: 1,021 inmates
  
• Fort Bend: 314
• Lubbock: 234
• Smith: 148
• Bexar: 76

Much of this results from choices by elected officials, not capacity shortages. All but one of these counties incarcerates its citizens at higher rates than the statewide average:

• Harris: 3.11 per 1,000
• Fort Bend: 2.20
• Lubbock: 3.74
• Smith: 4.22
• Bexar: 2.87
• Statewide: 2.63

Tenaha becoming poster child for asset-forfeiture abuses

Last night when laying out Sen. John Whitmire's SB 1529 regulating asset forfeiture, House Criminal Jurisprudence Committee Chairman Pete Gallego said he was sending a DVD to committee members with this story from CNN's Anderson Cooper 360 about Tenaha, a small town in East Texas that allegedly decided ripping off drivers passing through town was easier than raising taxes.

Key to ending the practice in Tenaha, the legislation would forbid police or prosecutors from requesting, requiring, or in any manner inducing defendants to waive their property interests until a formal civil foreiture case has been filed in a district court. Hopefully that will at least slow down the highway robbery mentality that appears to have infected some Texas jurisdictions when it comes to asset forfiture.

See related Grits posts:

• Reining in asset forfeiture abuses
  
• DA's overreliance on asset forfeiture violates the law
• Take the profit motive out of asset forfeiture
• Senate committee: Asset forfeiture too often a profit-making venture
• Outgoing Sheriff went on forfeiture-backed spending spree
  
• Asset forfeiture dependent Sheriff views Hwy 77 as 'piggy bank'
• Asset forfeiture funds may get more accountability, money diverted to drug courts
• Levin: Assets seized from criminals shouldn't become political slush fund
• What's the difference between a pirate and a privateer?

Innocence legislation wending through process

It's the time of year at the Texas capitol that bills are dying left and right because they can't make it through the process in time. Bills originating in the House of Representatives, for example, are dead if they do not pass out of committee by Monday May 11 and the final House floor calendar including House bills (excepting local and consent) will be issued the next day. As such, there's a great deal of anxiety right now under the pink dome.

Fortunately, quite a bit of legislation I've been working on for the Innocence Project of Texas is still alive and variously wending its way through the process. I spent a long, grueling day a the capitol yesterday waiting for the House of Representatives to adjourn so the Criminal Jurisprudence Committee could hear several pieces of innocence-related legislation at a hearing that didn't start until 10 p.m.:

• SB 116 by Ellis/Farrar which promotes recording custodial interrogations
• SB 1976 by Whitmire/Gallego expanding post-conviction writ access in cases with discredited forensics
  
• SB 1681 by Hinojosa/Gallego requiring corroboration for jailhouse informants
• SB 1847 by Hegar/Moody letting exonerated inmates access the same services as parolees when they immediately leave prison.
  

I felt lucky my boss Jeff Blackburn and I made it out of the building before 1 a.m.; the poor folks waiting to hear SB 298 on DWI roadblocks (and there were a bunch of them) had to stay to the bitter end to testify, by all appearances mostly against the bill, though I didn't stay to listen to them (and neither, btw, did the bill sponsor).

Another important innocence-related bill, SB 117 (Ellis/Gallego), has already been heard and is awaiting action by the same committee. It would require law enforcement agencies to have written policies regarding eyewitness identification procedures, a reform that the Court of Criminal Appeals' Criminal Justice Integrity Unit said should be the highest legislative priority for preventing false convictions.

Meanwhile, HB 1736 (Anchia/Duncan), increasing compensation for exonerees, passed out of the Senate State Affairs Committee on Monday and will likely be heard on the Senate floor by the end of the week.

The fact that these bills are all being considered in the second chamber means they've got an excellent chance of passing in some form or fashion, though we won't necessarily know for another few weeks what that final form will be.

What's clear, though, from the support garnered by these bills so far, is that many folks at the Legislature now understand the parade of innocent men walking out of Texas prisons exonerated by DNA evidence should be a wake up call that a broken justice system needs their attention - not just because prisons are expensive but because some of the prisoners in them shouldn't be there.

Jeff Blackburn said it well to the committee last night testifying on SB 1976: The reason we've seen 39 DNA exonerations in Texas is because the Legislature passed a DNA-testing statute in 2001, not because the courts did their job or the system was working well. And it's folly to expect the justice system to improve further without additional legislative action.

Most of this legislation has been scaled back and compromised during the process, and none of these bills is a cure-all: The Lege can't just pass them and then go back to their districts to declare the problem of convicting innocent people "fixed." But I feel like the body - in both chambers - is taking the issue much more seriously this year than at any time in recent memory. As I told the Criminal Jurisprudence Committee (sometime after midnight) last night, I'm thankful for it.

UPDATE: This afternoon (5/7), SB 116, SB 117, SB 1976, and SB 1681 were all voted out of the House Criminal Jurisprudence Committee.

More disapprobation for Shanda Perkins nomination to parole board

I'm not the only one, apparently, dissatisfied with Shanda Perkins' nomination for the Texas Board of Pardons and Parole. Harold Cook at Letters from Texas vents that:

Yesterday, the nomination of Dr. Bryan Shaw came up, to continue as one of three commissioners over the Texas Commission on Environmental Quality.

Most of the Senate Democrats opposed the confirmation, based on the silly notion that the state agency charged with protecting the environment should...well, you know...do a little of that from time to time.

During the course of that debate, Republican Senator Mike Jackson, who chairs the Senate Nominations Committee, the first stop for all these appointees, remarked in defense of Dr. Shaw that the Senate needs to look beyond policy differences, and instead cast their votes based on a particular appointee's qualifications, experience, and expertise.

Fair enough, Chairman Jackson. Let's talk about Shanda Perkins . Ms. Perkins is pending in Jackson 's Nominations Committee, as a Perry appointee to the Texas Board of Pardons and Paroles. Her committee hearing is today.

What are Shanda Perkins' qualifications? Well, she led a revolt against sex toys .

Her holy quest to rid Planet Earth of the scourge of people doing whatever they want in the privacy of their own homes landed one woman in jail, and the whole mess ended up in Federal Court. The courts eventually ruled that Ms. Perkins' goal, and the law that goes with it, is unconstitutionally illegal.

Perkins' only other qualification for appointment by Perry seems to be that she was caught passing out anonymous fliers attacking Senator Kay Bailey Hutchison at Republican events.

So what's it gonna be, Mr. Chairman? Is the talent bar in Texas so low these days that we're going to entrust decisions, regarding who remains in prison and who is set free, to a political hack anti sex toy crusader who is unconcerned with the U.S. Constitution?

The appointment is an embarrassment .

The Senate Nominations Committee will consider Perkins' nomination at a meeting this aftenoon at 1 pm. or 30 minutes after the Senate adjourns in the Senate chamber.

UPDATE: The Senate Nominations Committee approved Perkins' nomination on a 4-1 vote, with Sen. Elliott Shapleigh the lone opponent. Unfair Park broke the news of the committee vote; see also brief coverage from AP.

MORE (5/7): From the Dallas News' Trail Blazers Blog:

When Shapleigh quizzed Perkins and three other Perry appointees to the board about their credentials, the other three cited advanced degrees, years of prison work and experience in state and local government. Perkins cited her experience as a Sunday school teacher and a church youth counselor.

AND MORE: Best coverage yet of the hearing from Jim Vertuno at AP who reports:

The ACLU sent Perry's office a letter Wednesday saying Perkins' has "no relevant qualifications for the position and no identifiable experience in the area of corrections policy" and her nomination should be withdrawn.

Perkins' approval "will fail to promote fairness on the parole board or confidence in the criminal justice system," the letter said.

and also this tidbit:

Shapleigh also asked how she would vote if there was new evidence that could show a death row inmate may be mentally disabled, which would prevent them from being executed.

"I would vote against," execution, Perkins said.

Jeff Blackburn Hagiography

A blogger writing under the nom de plume "Harry Homeless" last month posted a notable hagiography of my boss Jeff Blackburn, the Legal Director at the Innocence Project of Texas (who incidentally will be in town this afternoon to testify on innocence legislation moving at the Lege).

The writer recounts his relationship with Jeff going back to the 1980s when the blogger worked as a contract janitor in Amarillo and he turned to Blackburn during an hilarious dispute with an ex-employer, who was then running for Mayor. The post includes several admiring tales of Blackburn's civil rights work in Amarillo; I've known Jeff for nearly a decade and there was much in this piece I'd never heard. But then, Jeff Blackburn is a man with a lot of war stories so I'm sure for the price of a beer or two he'd be willing to elaborate. ;)

Senate should reject anti-sex toy activist for parole board

The nomination of Shanda Perkins to the parole board - the anti-sex-toy activist chosen by Governor Rick Perry to make decisions about releasing prisoners - comes up tomorrow afternoon in the Senate Nominations Committee. See prior Grits posts for more background:

• Governor appoints anti-sex toy crusader to parole board

• Nomination of anti-sex toy activist to parole board draws more criticism

Perkins' push for harsh enforcement of petty vice laws against her neighbors in Johnson County ultimately resulted in Texas' law banning sex toys being overturned by federal courts. As I wrote when her nomination was announced, "She's so tough on crime, in other words, she's tough on crimes the federal courts say cannot exist because they're acts protected by the First Amendment."

Perkins appears to have no other criminal-justice related background besides her effort to have vibrator sales prosecuted. But there's another reason the Governor might believe (according to his press office) that she's the "most qualified candidate": She's lately been out distributing anonymous attack literature against Kay Bailey Hutchison at Republican Party events.

This nominee should be rejected; Perkins simply doesn't have a background to inspire confidence she'll make wise and judicious decisions on the parole board, and the board is already slanted in its membership and failing to meet its own release guidelines. Adding Perkins to the mix would only exacerbate that problem.

Auditor: TYC not processing abuse complaints quickly enough

The State Auditor's Office today issued a followup report on the Texas Youth Commission's compliance with reforms mandated in 2007. While the SAO found the agency had implemented 72% of reforms suggested in its 2007 audit, they identified several shortcomings:

- TYC did not competitively bid 11 contracts totaling $19.5 million that it awarded while the agency was in conservatorship from March 2007 to October 2008. While the Texas Government Code grants a conservator a series of powers and duties, it does not specifically exempt a conservator from complying with state procurement rules.

- TYC has not increased the number of certified sex offender counselors in its treatment programs or retained necessary documentation to support its staffing projections for juvenile correctional officers for fiscal years 2008 and 2009.

- In fiscal year 2007, TYC proposed closing five residential facilities. As a result, the Legislature reduced TYC's appropriations for fiscal years 2008 and 2009. However, TYC continues to operate the Victory Field Correctional Academy and the West Texas State School, which were two of the facilities that TYC proposed closing. TYC reported it spent $21.8 million during fiscal year 2008 to operate these two facilities.

- TYC did not ensure that its Office of Inspector General (1) received and investigated all reported allegations of mistreatment or (2) initiated and completed investigations of alleged mistreatment within 30 days as required by agency policy.

As for the facility closures, those will be decided in the conference committee on the budget. The House wants to keep them, the Senate wants to close them. The no-bid contracts are an unfortunate legacy of conservators' past, but not anything the current management can do anything about now.

Emily Ramshaw at the Dallas News focused particularly on new data about delays in investigating abuse cases, pointing out that SAO says "TYC took an average of 100 days to complete an abuse or neglect investigation - compared to 57 days in 2006, before the abuse scandal broke. The agency requires them to be complete in 30 days. 'TYC should evaluate whether [it has] the staffing resources necessary to complete investigations within the required time frames,' the report states."

See the full SAO report (pdf).

DPS Colonel ousted

Another nasty black eye for Texas law enforcement: The interim top cop at the Texas Department of Public Safety, Col. Stanley Clark, resigned abruptly over allegations of sexual harassment.

It's hard to ignore how the decision to force out long-time DPS Col. Tommy Davis last year doesn't look quite as clever now as it apparently did to the Public Safety Commission last summer. Col. Davis was a little too independent for the commission's tastes, bucking some of their proposed reorganization efforts, but surely that was preferable to this embarrassment?

Needle exchange, treatment and redemption

Local-control needle exchange legislation, SB 188, sounds like it's in pretty good shape from what I heard of the Texas House Public Health Committee hearing this morning. Rep. Ruth McLendon laid out the bill with an emotional story of personally going into her own district in East San Antonio to distribute needles with a volunteer group (presumably illegally!) and meeting a young man whose family she knew who later went voluntarily into drug treatment.

Chairwoman Lois Kolkhorst had earlier sent the bill to a subcommittee chaired by Rep. Susan King; there's no video in the broadcast archives of their April 16 subcommittee hearing, but it sounds like it was quite a meeting. They produced a committee substitute to include the following changes:

• Includes a preamble written to clarify the purpose of bill (prevent disease and facilitate treatment)
  
• Bracketed the legislation to jurisdictions of 300,000 and above
• Made the bill permissive - no one will be required to have a program
  
• Required programs to have an outreach component promoting drug treatment
  

Kolkhorst said an editorial by Dr. Bill Martin (pdf) in the Houston Chronicle arguing that needle exchange is "the Christian thing to do" had moved her to give the bill a hearing despite initial concerns about the bill. Rep. Susan King, who chaired the subcommittee, was an especially knowledgeable and enthusiastic proponent for the legislation; I hope she'll repeat the performance when it comes up on the House floor because she did a great job arguing the merits of the program.

Reacting to urging from the chair and committee member Dr. John Zerwas, King said the subcommittee added a strong counseling component to the bill, requiring syringe exchange programs to be "one stop shopping" information centers for helping drug addicts access treatment and medical services.

The witnesses began with ministers from St. Mark's in San Antonio and another minister from Austin who gave a faith-based argument for the program. A minister from St. Mark's said Christ ate and sat with sinners, not to condone them but to redeem them. The Austin minister said healing was a central activity of Jesus' own ministry - 72% of Jesus' miraculous activity relates to healing those with physical or mental illness, he said.

I got pulled away on a phone call and soon thereafter the committee recessed to go to the House floor, leaving the bill pending. They'll resume testimony during the House's lunch break around noon. From the sounds of things, though, the subcommittee has come up with a bipartisan compromise on which they can mostly agree. So far, so good.

UPDATE: Here's a link to the archived video of the first part of the hearing. The discussion of SB 188 begins at the 1:00:45 mark. MORE: Here's a link to video of part two of the hearing on SB 188.

A Big Idea for Texas Monthly: Slash Texas' prison system

I neglected to mention that Texas Monthly published a short blurb I wrote in their May "Ideas" issue - the one with Joel Osteen on the cover - touting "82 various and visionary ideas for how to make Texas a better place (Better than it already is, of course, which is pretty darn good)." My piece was in the printed magazine, but here are the ones they published on the web.

When he asked for my contribution, TM editor Jake Silverstein said the idea proposed "should be as daring, unusual, and ambitious as possible (even to extent of being entirely unworkable, so long as it’s a conversation-starter)." So here's what they published from me (at least, after their fact checkers updated the numbers):

Texas should dramatically slash its prison population and eliminate a majority of felony crimes. We have criminalized too many different activities: Texas has 2,324 separate felonies on the books, including 11 involving oysters. From 1978 to 2008, Texas's population increased 80 percent, while the prison population increased 595 percent. If prison growth had matched population growth, around 40,000 would be in Texas prisons today - instead the number is about 155,000. Texas must stop trying to manage every social problem through the justice system and re-empower its civil courts and regulatory functions to handle more conflicts among citizens.

Needle exchange bill reaches milestone Tuesday

Legislation to authorize local-control needle exchange programs will reach a milestone Tuesday when SB 188 finally receives a hearing in the House Public Health committee. The previous chair, Dianne Delisi, had singlehandedly blocked the bill in 2007 after a bipartisan supermajority of senators approved it. But this year's Chair Lois Kolkhorst greenlighted a hearing and promised sponsors the legislation will get a committee vote.

A majority of Public Health Committee members already voted for needle exchange once. The House had a vote in 2007 on an amendment by Rep. McLendon to allow a needle exchange pilot in Bexar County that tells us a lot about the bill's likely reception on committee. Here's how the committee members voted on that 2007 amendment:

Ayes: Naishtat; Coleman; Gonzales; Hopson; McReynolds, King, S;

Nays: Laubenberg, Truitt

Absent: Kolkhorst; Davis, J;

Present not voting: Zerwas

Though Rep. Kolkhorst wasn't there for the 2007 vote, the fact that the chair decided to give the bill a hearing shows she's at least open to the idea, and if she allows the committee to vote on the bill, by this count the votes are there to pass it.

Two other notable, key "aye" votes for needle exchange from 2007 pop out from the list: Calendars Committee Chairman Brian McCall and House Speaker Joe Strauss. That makes me hopeful SB 188 will make it to the House floor for a vote if it clears the Public Health Committee.

Needle exchange isn't a cure all, but it helps at the margins to prevent disease, reduce public health costs and make it more likely program participants access drug treatment. According to a fact sheet from the Texas Department of State Health Services, found via the blog Sifting the Haystack:

• More than 14,000 Texans got HIV when they were injecting drug users.

• About 240,000 cases of hepatitis C in Texas are linked to sharing syringes.

• Preventing 100 new cases of HIV would save $38,000,000 in medical costs.

• Syringe exchange could prevent 100 new cases of HIV per year in Texas.

• A study comparing 81 cities found the HIV infection rate decreased 5.8% per year in cities with SEPs and increased by 5.9% in cities without SEPs.

SB 188 is scheduled for a hearing in the House Public Health Committee on Tuesday, May 5, 2009, at 8:00 AM in E2.012 in the Texas Capitol. Go here to watch it live when once it begins.

See prior, related Grits posts:

• Needle exchange bill sails through Senate, heads to House
  
• Will 2009 be the year Texas approves needle exchange?
  
• Good chances for Texas' needle exchange bill next year, but assume nothing
• Needle exchange gets unexpected 2009 boost
• Bully Bexar DA says she didn't pick needle exchange fight (but she did)
  
• Needle exchange bill pits small government Republicans vs. authoritarian wing
• Texas Senate prescribes voluntary needle exchange
• Wow! Texas House approves pilot needle exchange
• Lone Star Times: Delisi needle exchange stance shows why GOP may lose majority
• Delisi: Research, Smesearch, I don't wanna
• Dr. Deuell prescribes needle exchange legislation

Texas considers eliminating LWOP for juvies, two steps ahead of SCOTUS

Amazingly, for once Texas appears to be ahead of the curve regarding reforms to capital sentencing, with the state Legislature poised to potentially eliminate life without parole entirely for juveniles, even as the US Supreme Court has decided to consider whether to ban the practice for juveniles in non-murder cases.

SCOTUS today agreed to hear two cases out of Florida that will determine the constitutionality of sentencing juveniles in non-murder cases to life without parole (LWOP), Reuters reports:

The nation's high court agreed to hear two Florida cases, one involving a 13-year-old convicted of raping an elderly woman and the other involving a 17-year-old who took part in an armed home-invasion robbery while on probation for an earlier violent crime.

Their lawyers appealed to the Supreme Court and argued that life imprisonment, without the possibility of parole, for juveniles whose crimes did not involve murder violated the Constitution's ban on cruel and unusual punishment.

The Supreme Court in 2005 abolished the death penalty for juveniles.

The justices will consider in the two cases whether to extend that ruling to sentences of life without parole for juveniles convicted of crimes other than murder.

Doc Berman notes that in one of the cases before SCOTUS, a Florida youth sentenced to LWOP was actually sent to prison for a probation violation (!) after earlier committing armed robbery.

Meanwhile, Texas law only authorizes LWOP for juveniles in capital murder cases, but the Texas House Criminal Jurisprudence Committee on Wednesday will consider SB 839 by Hinojosa to eliminate LWOP for juveniles entirely and substitute a 40-year minimum sentence. Most observers believed clearing the Senate was this bill's biggest hurdle and the legislation has an excellent chance of making it through the process and becoming law, thanks in part to assistance from some unlikely supporters.

It's nice, for a change, to feel like our state is one step ahead of SCOTUS on these matters. Perhaps it's possible, just this once, for Texas to adjust our most extreme sentencing practices without first enduring a series of embarrassing scandals and bench slaps from the federal courts.

SCOTUSBlog has the relevant legal materials from the Florida cases.

Declining Houston crime doesn't justify politicized rhetoric

Crime in Houston is substantially down, reports the Houston Chronicle's Bradley Olson ("Houston crime is down but not the fear of it," May 4), but demagoguery by media and politicians about crime is on the rise:

In the words of a statistician, the decrease in criminality appears to have an inverse relationship, at least for now, with political rhetoric on crime, which has ramped up in recent months.

“It’s probably very difficult for any politician to acknowledge that the problem of crime is decreasing, because that undermines the importance of the issue,” said Dennis Longmire, a professor of criminal justice at Sam Houston State University who has studied public attitudes toward crime. “Politicians use a fear of crime to garner support and get voters’ attention.”

Former Houston police chief and Mayor Lee Brown told the paper, “This always happens ... It becomes a political issue, rather than the reality of what a city is going through. It appears to be as if [the politicians] haven’t looked at what the reality is … The objective is to draw attention to themselves and get voters.”

Company associated with chair of white-collar crime panel subject of fraud investigation

Man alive! You can't make up ironies like this one:

The chair of the White Collar Crime Subcommittee of the Texas House Criminal Jurisprudence Committee is affiliated with a company that's been accused of securities fraud by state and federal white-collar crime investigators, Texas Monthly's Nate Blakeslee reports. Nate poses the question thusly: "How does a man like Allen Fletcher, a retired police sergeant who spent years heading a white-collar-crimes unit at the Houston Police Department, find himself in business with a group of alleged con artists?" Ouch!

It's too early to speculate whether placing Fletcher in charge of white collar crime policy amounted to putting a fox in charge of the henhouse: But I'll bet if Chairman Gallego had known this backstory when he made the appointment he would have chosen someone else.

For his part, the freshman Republican "said he was a victim of deception in that case as well and denied any wrongdoing." A federal case against his business partner was later dropped but could be refiled. (Read the full story as my overview here does not do it justice.) For now, I'll take Fletcher at his word that he was involved in no wrongdoing until I see evidence to the contrary.

That said, Nate Blakeslee is the ace reporter who first broke the story about the Tulia drug stings that led to his excellent book-length investigation of the case. He later was first to report about alleged sexual abuse at the Texas Youth Commission that turned that agency on its ear. So when Nate raises a red flag, in my experience, it generally behooves a wise observer to pay attention.

On the Criminal Jurisprudence Committee, Fletcher has seemed like a nice guy with no particular axe to grind. He's at times more thoughtful than some others on the panel but, unsurprisingly for an ex-cop, can also exhibit a greater degree of tunnel vision than I might prefer. (I attribute that to being a freshman; people tend to grow into these jobs.) He's been a consistently conservative vote - pretty much what you'd expect from someone whose political patron is state Sen. Dan Patrick, who donated $68K in radio ads and direct mail services to Fletcher' campaign and whose chief of staff was Fletcher's consultant.

The first time I met Rep. Fletcher earlier this year, before committees had been appointed yet and not long after the legislative session had begun, the first thing he said to me upon learning I worked for the Innocence Project of Texas was that, as a former police officer, he knew that the hardest thing in the world was to undo a false conviction because once someone was wrongly accused, suspicion would forever continue to hang over them. So I want to give him the benefit of the doubt and not presume without evidence that Fletcher knew about his business partners' alleged misdeeds. (Though arrests were made three months before his primary election, Blakeslee reported, the "raid was not reported in the press, and Fletcher was not publicly linked to the investigation.")

However, Fletcher and his partners had a checkered history together and Blakeslee's article at a minimum raises questions about Fletcher's judgment, who he associates with and how he runs his businesses. And there are parts of Blakeslee's story - like an elderly cop friend who loaned Fletcher $50,000 and died without getting it back - that could be immensely damaging if run on a TV ad or via direct mail.

Which is the problem with this story coming out now - AFTER the fellow has been chairing a legislative subcommittee on white-collar crime for two months, for heaven's sake. This is the kind of story you wish the local press or an opponent's campaign had discovered during election season so it could be discussed when voters could do something about it instead of bringing it up at crunch time late in session.

With the number of newspapers and professional reporters in a free fall, increasingly it will fall to political campaigns and parties to vet opposing candidates running for public office because there's no longer an independent institutional player (i.e., a local newspaper) performing the function. Clearly Fletcher's incumbent opponent - Republican Corbin Van Arsdale - didn't invest enough money in opposition research (a business I was in myself for a dozen years and 68 campaigns). This appears to all be stuff they could have found through routine records searches at the Harris and Montgomery courthouses if somebody had bothered to run the traps at the time.

MORE: Rick Casey at the Houston Chronicle has Fletcher's reaction to the Texas Monthly story.

Collin County prosecutors could let CCA off the hook for ethical morass in Charles Hood case

National CBS News last evening covered the Charles Dean Hood case, in which a Collin County prosecutor and judge conducted a secret romantic affair during Hood's capital murder trial. (The judge was later appointed by then-Governor Bush to serve on the Texas Court of Criminal Appeals with 8 of the 9 current members who now must decide whether to give Hood a retrial because of her misconduct.) CBS legal reporter Andrew Cohen offered this suggestion how prosecutors could help the CCA save face:

Now that Judge Brewer has found facts that establish the affair, and the efforts of two sworn public servants to hide it, it’s hard to identify a legal theory upon which Texas or its appellate courts could rely in denying Hood a new trial. Is there a more direct conflict of interest, negating the duty of impartiality and integrity in the criminal justice system, than what Holland and O’Connell did? Would you want to be a defendant in those circumstances? Would you trust the judge’s rulings, or the prosecution’s conduct, or the interaction between the two knowing that your adversary and tribune had been shacking up?

It’s possible, I suppose, that the appellate court could reject Judge Brewer’s legal conclusion that Hood’s attorneys can push this matter further even though all of the relevant events took place 19 years ago. It’s even possible, I suppose, that the appellate court will reject the interpretation Judge Brewer gave to the facts before them. But such poor judgments surely would themselves generate an appeal, and another, and maybe even a Supreme Court review. And before you know it we’ll be five more years down the road without any finality or certainty for Hood or the families of his victims, Tracie Lynn Wallace and Ronald Williamson.

Texas might consider doing here what the Justice Department did in the Ted Stevens corruption case. Faced with evidence of prosecutorial misconduct, the feds simply walked away from the conviction they obtained. Texas wouldn’t need to go nearly that far - no one (except for Hood) is suggesting that he ought to be freed or that he is necessarily an innocent man. All Texas would have to do, saving time and money, is agree now that Hood can and should be tried again before an impartial judge and an honest prosecutor. There appears to be ample evidence suggesting Hood’s culpability.

Texas then could use the money it saves fighting against a new trial for Hood on ensuring that its judicial officials understand what a conflict of interest is, and how it can be avoided, why it’s never okay for a judge and prosecutor to be romantically involved when they are working on the same cases together and why, worst of all, it’s never okay to hide such a material fact from opposing counsel. Hood’s judge and prosecutor lied, over and over again, to hide their affair. Any blame for the delay in bringing justice to Hood is their fault, not his, and Texas would be better off acknowledging that now.

Cohen raises a possibility I hadn't considered. Knowing what we now know, the Collin County DA could simply move to dismiss current charges against Hood in the interest of justice and seek to retry the case in front of a new judge, one who hopefully can contain their libido throughout the proceedings this time. That would be the right thing to do and it would spare the CCA the agonizing quandary they face now.

It would also seem anticlimactic. Part of me would like to see the high court forced to make that decision. If there are CCA members who believe it's okay to execute a man even if the judge and prosecutor were sleeping together during the trial, I want them to put their reasons on the record for history to see, and to judge.

RELATED: Rick Casey from the Houston Chronicle has a column on the case.

Sharon Keller: Out by 2010?

I just put up a reader poll in the sidebar posing the question, "Will Texas Court of Criminal Appeals Presiding Judge Sharon Keller keep her job through the end of the year?" Possible answers are "Yes," "No, she'll be impeached," No, she'll be removed by the Commission on Judicial Conduct," or "No, she'll resign."

Until the House Judiciary and Civil Jurisprudence Committee hearing last week, I would have prognosticated the chances Judge Keller would be impeached were exceedingly slim. Now I'm not so sure. For starters, a GOP committee chairman gave Burnam's resolution a hearing - a signal that concern about the CCA's presiding judge to at least some extent crosses party lines, something that was also evident among committee members at the hearing.

What's more, Burnam vowed to bring a resolution to the floor of the House before the end of the legislative session to impeach Judge Keller, saying that a) it's a "privileged" motion, so the chair can't keep him from making it, and b) the Lege does not need a special "call" by the Governor to consider the matter after the biennial 140 day session ends on sine die. Assuming both things are true, he can probably force a record vote in some form or fashion. If the House votes to impeach, Keller would be temporarily removed until the Senate can hold a trial.

That makes her removal via impeachment at least a within-the-ballpark possibility, even if it's an outside shot. The House is closely divided at 76 Republicans and 74 Democrats. But if Rs start to bolt the stable, it wouldn't take very many to tip the balance, assuming most Dems vote to impeach (which may be, I'll admit, an invalid assumption). In any event, it's not a mathematical impossibility assuming Burnam is actually allowed to make the motion.

The next option - her ouster by the Commission on Judicial Conduct - also appears more likely than I'd have ever predicted. They've initiated formal removal proceedings and appointed a judge who will hold hearings beginning August 17. That looks pretty serious and they might force her removal as part of a settlement in the case.

Retirement would no doubt be the easiest way out - "I'm taking more time to spend with my family," etc, etc. - but something tells me Sharon Keller's not a quitter and I won't be surprised to see her fight it out to the bitter end.

Which leads us to the other option: That she makes it through the end of the year and just sticks out her term through 2012. There's a decent chance the House won't impeach her, after all, and an even better chance the Senate wouldn't convict her. And even if the Commission on Judicial Conduct Commission finds against her, there are remedies available to them (that they may be inclined to use) short of removing Judge Keller from office.

So this question seems like a tossup to me. I can't decide which outcome I think is most likely. Register your opinion in the sidebar poll and use the comments to say why you voted the way you did.

BONUS QUESTION: Since we're speculating, who might Rick Perry appoint to replace her?

The testilying 'Bushmen'

At the Dallas News, Tanya Eiserer had an excellent story this week ("Dallas police officer's testimony may taint dozens of cases," May 2) about Sgt. Randy Sundquist, a Dallas police officer officially branded a liar and banned from testifying in court after an administrative judge overturned his firing in the mid-'90s. But over time, apparently, everyone forgot, and he was promoted to supervise a unit responding to drug complaints - an unimaginably poor judgment to put a known liar in charge of such a unit. Now, dozens of cases in which he participated may be tainted.

Eiserer's story concludes with an especially fascinating account that suggests Sundquist's lying wasn't just malfeasance by a single officer but actually part of a pattern attributed to his entire unit:

In the mid-1990s, Sundquist and other patrol officers were known among prosecutors as the "Bushmen," a reference to the group's fondness for hiding in bushes when conducting surveillance on suspected drug houses in South Dallas.

Colleen Murphy, a prosecutor, testified in Sundquist's 1995 appeal of his firing that some prosecutors didn't want to work with the "Bushmen" because their cases "were just totally unbelievable."

"They'd see amazing things in the middle of the night with no lights, from far distances," she testified.

Internal police investigators found that Sundquist had conducted an illegal search. They also concluded that Sundquist lied to them, finding among other things that he couldn't have seen what he claimed to have seen when he said that a man was standing in a doorway with a bag of cocaine.

"I found numerous flaws in their testimony and very shoddy arrest reports," Sgt. Jose Losoya told internal investigators. "These omissions or flaws could prove disastrous in a court case. As it was, it gave the impression that the officers were falsifying their reports to get drug dealers at all costs."

After he was fired, prosecutors issued the first letter barring him from further court testimony. An administrative law judge subsequently reinstated Sundquist and reduced the punishment to a 40-day suspension. ...

Sundquist then worked in the communications division for about three years, receiving high marks. He eventually returned to patrol duties and was promoted to sergeant in 2002.

Senior police officials say that over time, the squad Sundquist supervised morphed into a de facto narcotics unit, frequently tasked with working drug activity complaints. Commanders instructed them to no longer work such cases earlier this year.

My question: How could anybody with a brain put this guy in charge of a unit working narcotics in 2002, which is the year AFTER the "fake drug" scandal broke at the Dallas PD?

In that egregious case, Dallas' official narcotics unit was caught collaborating with crooked informants who packaged pool chalk faked to look like cocaine in order to to set up illegal immigrants on felony charges. Combined with this tale about the testilying "Bushmen," history is beginning to cast an especially ugly light on Dallas drug enforcement during the mid to late '90s, and Sundquist's advancement in the department provides little evidence they've appointed leaders capable of changing the culture that led to that ugly scandal.

Dallas has released 19 innocent men so far based on DNA evidence, but 24 innocent people were set up in the Dallas "fake drug" scandal, and God knows how many innocent people the "Bushmen" put away.

Oh, THOSE assets: Judge Keller not so poor after all

After pleading poverty and asking the state to pay for her defense counsel in removal proceedings by the Texas Commission on Judicial Conduct, Court of Criminal Appeals Presiding Judge Sharon Keller has revealed $2.4 million in assets she previously had not disclosed in her state ethics filings. Said one wag, "If a defense attorney in a death penalty case before Judge Keller's court filed briefs as carelessly as Keller filed her financials, the client in question already would have been executed." Ain't that the truth?

The Guessing Game

Watching an old movie with the missus this evening, this line made me laugh out loud:

"Without the facts, the science of criminal investigation is nothing more than a guessing game."

- Inspector Clouseau, The Pink Panther, "A Shot in the Dark," 1964

Indeed. :)

Sex parte: Coverup of judicial tryst tests CCA's ethical mettle

March and April were both memorably bad months for the Texas Court of Criminal Appeals, with the Commission on Judicial Conduct initiating removal proceedings against Presiding Judge Sharon Keller followed by the House of Representatives considering a resolution to impeach her. Unfortunately, the month of May didn't start off any better for Texas' high criminal court.

A state district judge ruled yesterday that death row inmate Charles Dean Hood did not wait too long to raise the issue that the judge and the prosecutor in his case were having an affair during his capital murder trial 19 years ago, setting the stage for the Court of Criminal Appeals to revisit misconduct allegations against one of its own former members. Judge Verla Sue Holland (pictured) was the trial judge in Hood's case and was later appointed to Texas' high criminal court where she served with 8 of the current members. According to the Plano Courier-Star ("Judge deems death row inmate did not receive a fair trial because of sex scandal," May 2), Judge Greg Brewer yesterday:

issued Findings of Fact and Conclusions of Law that concludes that attorneys for Hood discovered proof of Judge Vera Sue Holland and District Attorney Tom O’Connell’s secret, sexual relationship in a timely fashion and that Hood’s attorney are not at fault for not discovering this information earlier because the parties kept it secret for so long.

In his recommendation to the CCA, Brewer determined Hood should be able to raise judicial bias claims and that the affair between the judge and the district attorney violated his right to a fair trial.

Brewer found that Holland and O’Connell did not abide by their ethical and constitutional duties during the 1990 trial and conviction of Hood.

According to court records, Brewer states: “Judge Holland and Mr. O’Connell took deliberate measures to ensure that their affair would remain secret,” and “Judge Holland and Mr. O’Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship.”

In attempts to keep their affair secret, Brewer states “Mr. O’Connell misled habeas counsel during the successive state habeas proceedings and Judge Holland resisted counsel’s investigative efforts.”

The Findings of Fact and Conclusions of Law that Brewer made will now be sent up to the CCA for their review, where they can either accept or reject Brewer’s recommendations. According to Andrea Keilen, Texas Defender Service executive director, the CCA will either grant a new trial or find they are not bound by the trial-court recommendation.

I think Brewer made the right call: The judge and the DA had an ethical duty to disclose their misconduct and were playing hide-the-ball, so the defendant shouldn't be penalized for not knowing about the affair or not being able to prove it earlier.

Brewer's decision drops the whole mess right back in the lap of the Court of Criminal Appeals, which has done everything in its power so far to avoid directly ruling on their former colleague's ethical lapses. According to the Dallas News ("Old love affair gives death row inmate a new chance in 1989 murder case," May 2):

In his ruling, Brewer said Hood's legal team exercised "reasonable diligence" during the years, and that prosecutors' claim that the defense had moved too slowly was not valid.

"Judge Holland and Mr. O'Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship," the judge wrote.

Attorneys for Hood were unavailable for comment; assistant district attorney John Rolater declined to comment, citing pending litigation.

The case goes back to the court of criminal appeals for consideration on the judicial bias claim.

The court still is considering the other claim: that jurors were given contradictory instructions regarding mitigating circumstances, such as Hood's family background or childhood abuse, when considering the death penalty.

The CCA stayed Hood's execution based on the mitigation claim, not Judge Holland's affair, but that only bought the court time. Now the CCA must directly rule whether Judge Holland's misconduct justifies a new trial, which puts them in a particularly awkward spot.

Either they must publicly rule that someone most of them served with on the court is an unethical jurist who committed about the most egregious misconduct imaginable, or they must issue a public ruling that says a tryst between a judge and prosecutor during trial doesn't invalidate the results. Pick your embarrassment, in other words: Either admit you shared the bench for years with a grossly unethical colleague or issue a CYA ruling that would make the court even more of a national laughingstock than is currently the case.

The worst part: Charles Hood is as guilty as homemade sin. But the victim's family and friends now may have to endure a new trial as a direct result of misconduct by the prosecutor and trial judge. There's nobody else to blame: It's not like the pair didn't know what they were doing was wrong at the time it happened.

This case has become perhaps the most severe test imaginable of the Court of Criminal Appeal's ethical mettle - a test that so far they've miserably failed. In many ways it poses more of an embarrassment, even, than Judge Keller's "We close at 5" imbroglio because so many members of the court were colleagues of Judge Holland, so it will look like they're all protecting her if they don't go along with Judge Brewer's findings and give Hood a new trial.

If I were a betting man, I'd wager this will be a 5-4 ruling, but it's a tossup which way they'll go.

MORE: See Judge Brewer's findings - good stuff. He performed a thorough, credible review, which at this point is exactly what the public needed to see from the judiciary in this case. Now we'll see if the same can be said for how the CCA receives his findings.

ALSO: See coverage from the ABA Journal.

TDCJ closing visitation this weekend over swine flu

This notice has been place at the top of the Texas Department of Criminal Justice website regarding visitation this weekend:

As a preventive measure, the Texas Department of Criminal Justice is canceling visitation at all facilities for the weekend of May 2 – 3, 2009. Also, all programs that include visitors will be canceled for the weekend of May 2 – 3, 2009.

Further advisories regarding visitation shall be provided prior to visitation next weekend.

What is TDCJ doing about H1N1 (swine) Flu?

40% of Criminal Jurisprudence bills boost criminal penalties

As has probably been the case every legislative session in living memory, bills boosting criminal penalties account for a lion's share of legislation coming out of the Texas House Criminal Jurisprudence Committee this year. According to Emily Ramshaw at the Dallas News ("Texas legislature cranking out a variety of stiffer penalties for obscure crimes," May 1), "Of the more than 100 bills the House Criminal Jurisprudence Committee has endorsed this session, roughly 40 percent strengthen penalties for crimes or tighten restrictions on criminal offenders."

I was quoted in the story: "These are easy bills to pass," said Scott Henson, a criminal justice expert turned public policy blogger. "No one can say, 'I'm for stealing air conditioners.' "

The article also quotes two senior Democrats who strongly disagree over the direction of the committee on enhancements, and while I respect each man immensely, I must say I disagree with both of them:

Rep. Pete Gallego, who chairs the Criminal Jurisprudence Committee, said there will always be some criminal enhancements, from lawmakers who "have an incident in their home district, and want to make sure their folks are protected next time."

But he said these measures are far outweighed by the progressive legislation his committee has endorsed, including bills to ban execution of criminals with mental disabilities, commission a study on the death penalty and broaden mentally ill offenders' insanity defense.

"Texas was once a 'lock 'em up and throw away the key' state," said Gallego, D-Alpine. "That's no longer the case."

Rep. Harold Dutton, D-Houston, couldn't disagree more. During the early 1990s, he said, "Texas was building more prisons than schools." Late that decade, lawmakers changed their strategy, rewriting the penal code to focus on diversion and rehabilitation. Now, Dutton says, Gallego's committee is taking Texas back in time, bowing to attorneys and special interest groups and sending more people to prison.

"Soon we're going to have not just 150,000 prisoners in Texas, we're going to have 250,000," Dutton said. "It's a committee that's hostile to average citizens and plum for prosecutors."

For Chairman Gallego to claim Texas is no longer a lock-em up state strains credulity, though certainly initial steps have been taken to turn the ship. But I think Dutton is wrong, too, that the Criminal Jurisprudence committee has somehow shifted gears to approve more enhancements than in the past.

Under Gallego's leadership the committee has voted out a lot more positive legislation than in 2007 when Criminal Jurisprudence was a virtual killing field for reform legislation and really was under the thumb of the prosecutor lobby. But let's be clear:

One in 22 Texans is still in prison, in jail, on probation or on parole - as many people as live in Washington, D.C. and more people than live in four US states are under control of Texas' criminal justice system at any given time. The number of people actually incarcerated has leveled off but until the sheer volume declines, it borders on absurd to say it's "no longer the case" that we rely too much on incarceration.

Texas has indeed shifted more resources toward prison diversion in recent years, but that's been done through other committees and the Criminal Jurisprudence Committee has simultaneously been working at cross purposes the whole time, continuously creating new felonies and boosting penalties for existing ones even while other legislators worked to limit prison population growth.

It's also worth noting that prosecutors aren't the main source of most so-called "enhancement" bills, special interest groups are. Shannon Edmonds at the Texas District and County Attorneys Association estimates only 3% of so-called "enhancements" are proposed by prosecutors, and in my experience that estimate is about right. As long as I've been watching this committee - under both Democratic and Republican chairmen - the trend of passing dozens of new penalty increases every session has looked very similar.

Who are these special interests? Just about all of them. The goat herders want harsher punishments for theft of a goat. Teachers and school districts want to criminalize disobedient students. The telecom and electric companies want higher penalties for theft of copper wire. Coastal fisherman want to boost penalties for poaching shellfish.

Every part of every code is laden with "enhanced" penalties for narrow special interests, IMO largely because the political class has an exceedingly limited view of government's role and a shortage of good ideas for how to curb behaviors that make us mad or infringe on commercial interests. It's not that special interests don't understand, at some level, that their enhancement bills don't work. After all, they keep having to come back asking for higher penalties year after year.

On the Senate side, Ramshaw's article failed to mention, Criminal Justice Committee Chairman John Whitmire has held the line much more strongly on boosting criminal penalties, largely because in the Senate the same committee is responsible for prison diversion efforts so it's easier to recognize the cognitive dissonance of doing prison reform and penalty hikes at the same time. For his consistent prudence on this matter, the state owes Sen. Whitmire an enormous debt of gratitude: If it were up to the House of Representatives, it's not an exaggeration to guess that perhaps 5 or more times as many new penalty hikes would become law every session.

I should also mention that Emily portrayed my view on the future of enhancements as slightly more pessimistic than is actually the case:

Henson, the former director of the American Civil Liberties Union's Police Accountability Project, said criminal enhancements aren't likely to end – ever – because they're an easy "freebie" for lawmakers. Though sending more people to prison costs the state money, lawmakers don't have to take that into account in their bills. It's how Texas has more than 2,300 felonies on the books, Henson said – 11 of them involving oysters.

"At this point, we've criminalized everything that remotely needs to be criminalized," he said.

My point, though, wasn't that it's impossible to "ever" put an end to the Legislature's enhancement fetish, but that the only way to stop it would be to put an accurate price tag on each new penalty hike.

Traditionally, the Legislative Budget Board tells the Lege that all penalty increases cost nothing and needn't be accounted for in the state budget. If LBB were disallowed from claiming more incarceration is free and there was a rule that every new penalty hike required new money in the state budget, I actually believe much of this foolishness would die down awfully fast.

As I've written before, penalty hikes almost always reflect a lack of imagination about other ways to influence human behavior. Increasing current penalties should be a last resort since it's among the least effective approaches - once something is illegal, after all, making it more illegal won't reduce the number of people who do it much. But usually penalty hikes are 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.