Tuesday, July 13, 2010

Questions you can't ask a probationer in Fort Worth

Liberty and Justice for Y'all alerts us to a potentially momentous decision out of Fort Worth's Second Court of Appeals which found that probationers retain their Fifth Amendment right against self-incrimination, a decision which likely contradicts the day-to-day practices of probation departments statewide. According to LJ4Y:
In Ex Parte Dangelo, the applicant, who was on probation for pleading guilty to one count of "injury to a child," filed an application for writ of habeas corpus when the trial court incarcerated him after he refused to answer the following questions during a polygraph exam given to him as part of his probation:

  1. "Since you have been on probation, have you violated any of its conditions?";
  2. "Since you have been on probation, have you had sexual contact with any persons younger than 17?";
  3. "Since you have been on probation, have you tried to isolate and child for sexual purposes?"; and
  4. "Since you have been on probation, have you intentioanlly committed any sexual crimes?"
The court agreed that violating the probationer's bond for refusing to answer those questions violated his Fifth Amendment right against self-incrimination. Extraordinary! Key to the court's reasoning (from pp. 7-8 of the opinion):
The Texas legislature has explained that the purpose of the communitysupervision statute is to remove “from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems ofcommunity supervision in the public interest.” Tex. Code Crim. Proc. Ann. art. 42.12, §1 (Vernon Supp. 2009) (emphasis added). Thus, the trial court’s broad authorityto create community supervision terms does not extend to imposing terms thatviolate a defendant’s constitutional rights as balanced with the goals of the defendant’s probation.
Questions related to probation violations or the offense for which the probationer was convicted are still fair game, but "if a condition of a defendant’s probation requires the defendant to admit to anoffense that could lead to criminal charges independent of those that the defendant is serving probation for, the defendant has a Fifth Amendment right to not answer such questions."

Who knows whether the Texas Court of Criminal Appeals might ultimately hear this case or how that divided court might rule? But for now, at least in Fort Worth, the Fifth Amendment to the US Constitution still applies to probationers. Who'da thunk it?

If the Texas high criminal court did reverse the 2nd Court of Appeals, it might set the CCA up for yet another showdown with SCOTUS. The Cowtown appellate court relied primarily in its ruling on a US Supreme Court case from 1984, Minnesota v. Murphy, in which SCOTUS held that:
A defendant does not lose [Fifth Amendment protection] by reason of his conviction of a crime; notwithstanding that a defendant isimprisoned or on probation at the time he makes incriminatingstatements, if those statements are compelled they are inadmissible ina subsequent trial for a crime other than that for which he has been convicted. . . . .'

If [a defendant asserts Fifth Amendment rights], he “may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time beingassured that neither it nor its fruits may be used against him” in asubsequent criminal proceeding.
I don't know what the precedents are in other Texas appellate jurisdictions, but this ruling seemingly would alter quite a few common practices at Texas probation departments if it were applied statewide. Indeed, it will be interesting to track what will be the impact within the jurisdiction of Texas Second Court of Appeals.

35 comments:

Anonymous said...

Grits, you said in your comments that the probationer "violated his bond." Was he on probation yet or on bond? Not clear.

Gritsforbreakfast said...

Honestly, that's unclear to me as well, 11:32. See p. 4 of the opinion (pdf). The part that made me use that language reads as follows:

"On July 10, 2009, the trial court declared that appellant’s bond was insufficient and ordered a warrant to be issued for his arrest because of his failure to submit to a polygraph exam."

However, the polygraph was quite clearly a probation condition that had been added post-sentencing by the court. I don't quite understand the "bond" reference myself, and anyone who does please help us out and clarify.

Anonymous said...

DOA at the CCA.

Anonymous said...

All I can figure is that this probationer must have been arrested on one of the state's motions to adjudicate guilt and later released on bond. Evidently, while on bond he refused the polygraph exam which gave rise to this issue. To me, this case best exemplifies why prosecutors shouldn't try to get creative in plea bargaining sex offense cases. When you start changing the charge on sex offenses to avoid some of the more onerous sex offender probation conditions, you leave yourself wide open to this type of circumstance. Reading between the lines, it looks like they had a sex offender who'd reoffended and refused the polygraph for that reason. Don't blame him for not wanting to answer the questions, but I wonder if the decision of the court of appeals might have been different if this guy had been on a real sex offender probation where polygraph exams are required by statute. This should be an interesting case to follow up the appellate ladder.

Anonymous said...

Fort Worth CSCD hasn't been doing too well with their sex offender probation side. I have seen several recent revocations and such overturned by the appellate court. In this case I also feel it will die at the CCA level, but it still makes you wonder if those supervising the caseload have any business doing it.

Anonymous said...

If it was going to happen anywhere in Texas, I'd say Ft. Worth is as likely as anywhere. They're fairly progressive.

But I second (3rd?) the DOA at the CCA.

Rage

R. Shackleford said...

Yes! Gun rights implications!....maybe.

Anonymous said...

Shackleford:

Now that the 2nd has been incorporated against the states, that might be right.

Although, I think more it's more likely that they now make a distinction between constitutional rights that are defensive, such as those a criminal defendant is entitled to, and those that are not, such as the right to assemble, bear arms, etc.

Rage

Anonymous said...

In response to the wonder if the person was on "real" sex offender probation, If they were asking those questions he was either on bond for a 'real' sex offense charge, or was already on probation for same.

I survived rso probation, and we were told we MUST answer all questions or be revoked. In therapy they would discharge us for saying we had rights. We would have been revoked for saying the same to our PO's or the poly examiner. Years I spent in therapy being told I was two steps below shit and industrial waste.

While I have changed my thought processes, taken full responsibility for my crime(and for my terrible behavior before it), I believe that it is finally time that the courts step up and put the Constitution back on the front table. For far too long, when RSO's are looked at, the Constitution has been used as toilet paper when referencing the rights that are supposed to promised from the founding father's efforts.

While I hope the guy didn't re-offend, we all need to realize that citizens of the United States are guaranteed rights by the Constitution of the United States. These are not ideas granted on a whim, and cannot be taken away on a whim either.

R. Shackleford said...

Hence the 'maybe'. But damn these distinctions, a right is a right. Just once, I'd like to see some lawmaker say, "Sweet Christ in the applesauce, we have enough damned laws. In fact, let's just go through the list here and repeal a bunch of 'em".

Anonymous said...

Yeah, but the 'maybe' is really un-necessary. if a person is on probation for what was originally a sex offense, guaranteed he has all the restrictions (sometimes even the registry sign up) that someone with Triple rape of a goat, would. so whether his charge was rape or child endangerment, the restrictions are usually the same , unless ofcourse he had a REALLY good lawyer.

The Criminal Code has been changed so much in the last 12 years. What used to not be considered a sex offense is now treated like the worst of the worst. Endangerment of a child without sexual contact will get you on the registry in some instances.

Be that as it may, again I hope dude did not sexually re-offend. However I hope that any appeals from the state is met with the same intelligent thought from the courts. There is a time when even righteous DA's have to say enough.

I've been off probation for 4 years now, one offense, and 1 victim total. I've passed all the tests, been evaluated several times as a non threat, yet just yesterday I learned that I can now not get an FHA loan, and unemployment benefits are denied to me due to my status. These are both laws passing through Congress NOW! My crime was paid for IN FULL 4 years ago. So to say that I am joyful that a small battle against the fascists was won here would be an understatement.

c_cosper said...

grits.. totally unrelated sub.
i would like to know if you have any suggestions on how to handle court issues in smith county?
my sister is involved in a custody battle with a non blood relative that is an important member of the tyler bus. community and she is in judge clarks court room. i have personally been in her court room and have seen how on sided and self centered she is and we are getting no where . is there not a time limit on how long she can keep sending us out of court with no solution? we need help and i found you blog , if you have any suggestions ; because my sister is running out of money she sold her only car to help pay the lawyer, please contact me . carlacosper@ yahoo.thank you

Gritsforbreakfast said...

I'm sorry, Carla, I don't have any good advice for you.

R. Shackleford said...

8:40,
the maybe was aimed at Rage's comment. But I must say, once you've done your time the bastards ought to leave you alone. I know people get real sketchy about sex offenders, but if you're done, then you ought to BE done. Punishments that end in 10 years or so aren't supposed to last a lifetime. On the other hand, if someone raped my kids, I'd shoot him/her in the face. Tough issue.

Anonymous said...

Answering the questions cited in this post truthfully would not, and should not, lead to revocation of the community supervision term, unless the offender provided more information beyond a simple yes or no. Legal action can't be taken against someone for re-offending unless the victim is known, and if no names or details are provided, then there is no legal action that the officer can take. Sex offender officers rely on these polygraphs and certain lines of questioning to guage whether a probationer is fully engaged in sex offender treatment and to measure the progress being made. Some offenders will lie on their initial polygraph exams, then over time are more truthful, and admitting that you have a problem or that you made a bad choice is the first step towards solving that problem. I know some officers push a bit too hard to get information out of offenders, which is wrong in many instances, but telling offenders that they don't have to answer certain questions is dangerous for the community and the offender's rehabilitation.

A bigger question that this raises for me is whether the CCA feels that offenders can pick and choose which conditons of community supervision they are going to follow. Offenders agree, in writing, to follow ALL of the conditions in their probation order when they sign the order, which is why attorneys need to do their jobs by reviewing the conditions with their clients THOROUGHLY. I have seen way too many attorneys skim through a probation order and never show it to their clients. Then, the attorney is shocked at the bench when the judge lists the conditions they are expecting to be followed, or the offender reports to the CSCD and throws a fit because they "didn't know" they had certain conditions. Will the CCA allow them to ignore the ones they don't agree with after the fact? So many questions like this will need to be answered by the court. I am eager to see what happens next.

Gritsforbreakfast said...

9:32: The question is not "whether the CCA feels that offenders can pick and choose which conditions of community supervision they are going to follow." It's whether the state can require conditions of supervision that violate the probationer's 5th Amendment rights? Plea bargains are not freely entered into contracts - the state is applying threats and coercion. However, the Constitution limits the extent to which threats and coercion may be use to force self-incrimination as part of these or any other contracts.

As pointed out by others, the same arguments can be made regarding First Amendment rights, Second Amendment (after McDonald), and other rights deemed "fundamental" by the courts but routinely abrogated in probation agreements. Bottom line: This is an area (acknowledging fundamental, constitutional rights of convicted offenders) which is ripe for the pendulum to swing back from the extreme fringe where it's been the last few years.

Anonymous said...

I understand what you mean, but this decision also opens the door to many other issues. My other concern (that I did not mention in the previous post) is what will eventually end up happening to victims' rights. The courts (and implicitly the state) have imposed many conditions to protect the rights of the community in general and victims specifically (and yes, I understand that in a majority of criminal cases, the only victim is the law that was broken). I fear that this could lead to a further deterioration of victims' rights down the road. So I wait in earnest to see where this leads. I am all for civil liberties for everyone, including offenders. But where do we draw the line? After someone is victimized? The system has struggled with this for a long time. I just hope the policymakers actually hold an open discussion on this rather than doing what is in their "best political interest."

Anonymous said...

Grits, plea bargains are freely entered into contracts. If there are threats and coercion, the plea is involuntary. The prospect of getting a worse deal if one goes to trial before a judge or a jury is a potential adverse consequence of a defendant's choice. It's not a threat, and if it's coercive, it's only so in the mind of the defendant.

Irrespective of your mistake on this issue, there are many constitutional liberties which give way to one's status as a probationer or convicted felon. Particularly, as it relates to sex offenders, society, legislatures and Congress have drawn a very hard line when it comes to punishment for those types of crimes. I don't see the Supreme Court, as presently constituted at least, backing down anytime soon. I guess we'll see what happens with this case from Fort Worth.

As an aside, for those who feel that sex offenders who've "done their time" should be forgiven and freely accepted back into society, I'm sorry, but your crimes are different. You took something very personal and important from another person that can never be repaid or given back. In many cases, your victim was an innocent child. Those victims will have to live with the consequences of your selfish actions for the rest of their lives. So should you.

Gritsforbreakfast said...

"If there are threats and coercion, the plea is involuntary."

One of the great myths on which the justice system justifies itself. It's a lie.

For example, a capital defendant pleads to get a life sentence. The state has told him, "We will kill you if you don't accept this deal." That is coercion, flat out.

Anonymous said...

It's not a lie, Grits. If the State offers life in a capital murder context, the choice is still up to the defendant with the advice of his attorney. The State is not saying "we will kill you if you turn it down." They are, however, saying "we will try to convince a jury to kill you if you turn it down." There's a distinction there and you know it. A defendant may still go to trial and hope to be acquitted, or convicted of some lessor offense. They have that option. Of course, in many death penalty cases, life is never even offered. At any rate, the facts and evidence may be coercive to any given defendant. A guilty concience may be coercive. But in the case of a legally negotiated plea bargain, it's a contract. And the only threats or coercion is in the mind of the defendant.

Anonymous said...

I'm going to punch you in the nose if you don't give me your lunch money. That's not coercion, mind you. I'm just informing you of the adverse consequences you could suffer if you don't give me your lunch money.

Gritsforbreakfast said...

Believe that if it makes you sleep better at night, 11:54.

And of course the coercion is "in the mind of the defendant." Coercion can only be defined by the perception of the coerced. It's not happening to anybody else.

Lots of innocent people take pleas to avoid a possible trial penalty, and they do it because of coercion, not in a freely entered to "contract" comparable to those described in contract theory class in law school.

Mark # 1 said...

Okay, 1:31; what offense is next to be "different" so that you feel comfortable eviscerating the Constitution? Isn't murder by definition "different?" Or are you one of those patriarch-oriented persons who feel that "rape is worse than death" for a woman?
Moreover, your red-herring claim (JB, anyone?) that anyone wants former sex offenders to be forgiven and freely accepted back into society sounds as if you are in favor of creating a permanent underclass who can be poked with sticks at will just to make everyone else feel good. No one is trying to minimize the offenses of those who have committed a sex offense. What most people who are disgusted with the registration regime want is for is truthfulness in sentencing. If you truly believe that a sex offense is somehow "different," then by all means vote for those who will increase the penalties for such offenses--and let's go to trial. But do it up front, and in the open. Raise the actual sentence to be imposed, rather than sneak it in at the back with some sort of "registration" boondoggle, which does nothing more than give the state one more chance to punish after the fact. Though most courts are currently smoking the legal fiction that registration is "merely remedial and not punishment" in order to get around the pesky ex post facto clause, ask the families of former sex offenders what registration means in real life. I note that your language implicitly recognizes that registration is punishment. We will look back on this era of ridiculous registration (and the war on ourselves, too) and wonder just how the hell we let the constitution run off the tracks--or, maybe not, to our sorrow.

Mark # 1 said...

11:54, substitute "the over-arching power of the state" where you have "facts and the evidence" in order to see what is really coercive in the plea bargain context. But I suspect you already know that, and are probably just fine with it.

Anonymous said...

Okay, Grits, I give up. Our system is unfair and corrupt. No "checks and balances" whatsoever. Sex offenders are treated terribly unfairly in this country--bordering on "cruel and unusual punishment." By the way, did you see where Iran was going to stone a woman to death for committing adultery?

Don said...

To the JB impersonator: That last post is a coward's way out of an argument you started but can't finish. Climb out from under your "anonymous" rock and tell us which county your prosecute for and where you had John Bradley for a mentor.

Gritsforbreakfast said...

12:54, since I never said there are "No 'checks and balances' whatsoever" I feel no obligation to defend a stance I never took. But I certainly maintain that the idea a plea bargain is an un-coerced, freely entered into contract is a BS legal fiction.

Anonymous said...

"As an aside, for those who feel that sex offenders who've "done their time" should be forgiven and freely accepted back into society, I'm sorry, but your crimes are different. You took something very personal and important from another person that can never be repaid or given back. In many cases, your victim was an innocent child. Those victims will have to live with the consequences of your selfish actions for the rest of their lives. So should you."

It seems you buy the line 100% of the time. My victim wasn't forced. I picked her up in a bar while we were both drinking. She had a fake ID, she agreed to go home with me, agreed to take off her clothes and agreed to everything else. so don't give me any of the standard BS lines.

yeah there are some of us that beat someone over the head, or grabbed a kid off the street, but alot of us got shafted dude. When you face 20 years or are offered a deal, there isn't much of a choice. While I am on the subject. I don't have a conviction, but still every year get new laws passed against me, most call that exposte facto; atleast people with other crimes hanging on them (there isn't anything civil about fear man, just so you know). When I came on Probation, there was the ability to get off the registry after proving your threat level was low, I proved it, but the lege took it away in 99

It is funny though that you mention it is all for the safety of the community. Sex Offenders carry a maximum 12% re-offense rate. so 12 out of 100 will do it again statistically, yet more people are harmed by drunk drivers than by the RSO community as a whole.

And don't give me the don't do the crime if you can't do the time crap either, if I had known she was 15, she'd have gotten another guy that night, not me. But so you know. my wife and my kids are comforted every night worrying about who the next asshole will be to flatten one of the tires or spray paint my house.

For all the rest reading, forgive me, but I get a little irritated when one of the 'righteous' attempts to tell me who I am, or what I deserve.

Anonymous said...

Okay, Grits, I give up. Our system is unfair and corrupt. No "checks and balances" whatsoever. Sex offenders are treated terribly unfairly in this country--bordering on "cruel and unusual punishment." By the way, did you see where Iran was going to stone a woman to death for committing adultery?

I never said that Sex Offenders should not be punished for PAST actions while on probation or in jail. The issue is the continued punishment under the guise of 'civil' or 'safety' laws. You and I both know those terms are utter bullshit.

I am wondering, if your idea of an RSO is someone who 'took' something. what is your stance on same-aged teen offenses where both want to do the act? would you throw them both in jail or just the guy? How about the kids that took pictures of their girlfriends naked and got caught? Attica for them too? Or the guys getting popped for pissing on a tree in an alley? They hardened criminals as well?

if you are a DA, it certainly shows. Here's to a very short career for you.

R. Shackleford said...

9:32,
I second what everyone else said, with the addition of a hearty "F U, I hope you end up in the jails you helped fill, bent over a washing machine."

Don said...

yes 5:29 he is a prosecutor of the John Bradley ilk--just too cowardly to let us know who he really is. A symbol for a f*cked up system.

Anonymous said...

ahh damn, JB-clone didn't come back. funny how when others begin to mentions those pesky facts and case examples the fear mongers seem to run as fast as they can to their own "truths"...

I really was interesting in finding his answer to the same age RSO offense, or the texting one..

But then again, sometimes the supporters of such are only there to retain their public seats and have no real agenda to present.

Anonymous said...

As a Licensed Sex Offender Treatment Provider, this ruling creates significant personal and professional conflict. I'm all about constitutional laws and believe them to be applicable to all US citizens. HOWEVER, in cases lowered from sexual to nonsexual offenses, I can not help you if you are ordered into SO treatment but invoke the 5th. It is a terrible catch 22 and one that will change the course of treatment throughout the state. The same applies to annual monitoring polygraphs. I have a tremendous amount of respect for my clients who come in weekly and give 100% in treatment. Most people will never know the stigma and shame associated with a sex offender label OR the courage it takes to accept full responsibility for comitting a sex crime(s). As treatment providers, it is our job to help these individuals - with the ultimate goal of "no more victims". This ruling certainly impedes our ability to fulfill our obligations. The standards of treatment set forth by The Council on Sex Offender Treatment are rigid and currently in direct conflict with this appellate ruling. At this time, we are all awaiting word from Austin about how to proceed. I will not knowingly violate the constitutional rights of another human being. Is discharging an individual from treatment (for invoking the 5th)such a violation or is the resulting revocation filed by the probation dept. the actual violation? This ruling has long-term, serious implications for providers, clients, probation depts., polygraphers, victims, and the community at large. There is definitely an increased risk to public safety. The easy way out of this quandry would be a decision from county prosecutors NOT to lower any sex cases to nonsexual offenses - but this will never happen. Too many cases too difficult to prove, too many mitigating circumstances to adopt such a blanket policy. Even if such a policy were adopted, this doesn't take into account the annual polygraphing requirements in treatment. This is truly a mess. It is my hope that we receive clarification from CSOT quickly. Until then, I am treading carefully and mindful that my actions might start the unconstitutional ball rolling...

Anonymous said...

I applaud you for coming on the forum to answer this. SOme of us (myself included) are a tough crowd.

The standards of treatment set forth by The Council on Sex Offender Treatment are rigid and currently in direct conflict with this appellate ruling.

While I will agree completely the rules are tough, if the CSOT would fulfill their mandate and put the tools in place that the law ordered them to do 10 years ago, the problems could be mitigated. When the law was passed in 2001 to have the CSOT develop tools to intelligently access the probability of an RSO of re-offense, there should have been tools available for treatment providers instead of having to rely solely the Static 99, Able, Plethesmo, and poly. Being from a group myself, these new tools are needed to better categorize the RSO into more manageable groups with those of lower offense risks being allowed development of a different caliber than those who show to be a present risk. After spending 7 years in treatment, I can't say it was impossible for me to spot a minimizer/reoffender; however some where a surprise. Proper classification would help the treatment providers spot those that are in lapse and allow them to take action, versus having to give 100% to each and every person walking through the door. Treatment gaged on crime charged is no replacement for individual accessment.

Too many cases too difficult to prove, too many mitigating circumstances to adopt such a blanket policy.

This is the entire problem with the current registry itself. The mob mentality is always the easiest road as those who scream the loudest are the ones heard most often. That doesn't mean the loud screamers are right mind you, mostly they are wrong and opinionated; However, scream gets the most attention and with that for odd reasons they are believed.

For your part, I have to agree, you ARE in a terrible pickle. I understand why the good ones go into treatment providing, you really do want to right a listing ship, and protect others. That is a commendable thing, on the other hand though with great power comes great responsibility and Constitutional law trumps state 'rules' 100% of the time. This leaves you with serious professional and legal issues on your shoulders. I cannot say I would want to be in your shoes.

When you take a professional out of a decision making process and instead put law enforcement and politicians in charge this is how things get so messed up.

Anonymous said...

Update: Looks like we'll know something from CSOT by October. The meantime calls for our best and most ethical judgement. Unfortunately, the ball has already started rolling in my county and we'll end up in court before then. DAs office is already backpedling, therapists are frustrated and the probation officer will shoulder the responsibility of supervising a dangerous sex offender without any sex offender probation terms or counseling requirements. Here we go...