Friday, February 26, 2010

Clearing the desk: Rounding up Texas justice stories

Here are a few items about which I apparently won't get around to writing full blog posts this week, despite my best intentions, but which may interest Grits readers heading into the weekend:

DNA database for infants as well as crooks?
The state appears to be backtracking now, but a lot more babies than crooks have had their DNA compiled in state databases over the last few years, reports the Texas Tribune.

Clean car, following the law = 'reasonable suspicion'? Not.
Liberty and Justice for Y'all assures us that, at least in the jurisdiction of Texas 7th Court of Appeals, "It is not a crime in this State to drive a clean car, look away from passing police officers, drive a vehicle of one's choice, obey traffic warnings, and abide by posted speed limits." Remarkably, both a state trooper and a local judge had earlier reached the opposite conclusion. Reversed and remanded. Paul Kennedy also has a good post on "When does a traffic stop become unreasonable?"

DEA Agents aren't embedded in Juarez anti-drug units
In case you were wondering.

Forensic analysts seek scientific basis for their work, find little
At the nation's largest forensic science conference in Seattle, reports the Seattle Times:

"The theme of this meeting is 'Putting our house in order,' " said Thomas Bohan, the physicist-turned-forensics-expert who leads the 6,000-member organization. ... "The dominant message here ... is that the emperor really doesn't have all his clothes on," said Donald Kennedy, former president of Stanford University and an organizer of the NAS review.

A curious murder charge
In Collin County, prosecutors took a murder case to trial after an overdose where one heroin user helped another shoot up. Reports the Dallas News Crime Blog, "Although evidence indicates that Stevie May, 21, was a willing participant in obtaining and using the heroin, prosecutors contend that in this case, the drug was a deadly weapon that Metz wielded in a 'clearly dangerous' manner."

A rare CCA victory for 'weenie wagglers'
Mark Bennett brings word of a win by his former officemate Melissa Martin at the Texas Court of Criminal Appeals, which found that Harris County's longstanding standard charging language in indecent exposure cases was defective.

Law enforcement administrators losing control of deployment, promotion decisions
If I had more time and energy, I've got a rant brewing about the difficulties faced by law enforcement administrators at all levels to promote or transfer officers according to the needs of their departments, thwarted by antiquated civil service rules that value length of tenure over skills and competence and emasculate administrators. Recent cases at Austin PD and DPS reflect this trend. In Austin the chief can't name his own administrative team and at DPS, unlimited overtime has apparently become a God-given right.

'Failing to punish prosecutorial misconduct only invites more'

So argues John Terzano of the Justice Project in this editorial.

'How to really fight DWI - mass transit and neighborhood bars'
That's the headline to a post by John Lomax at the Houston Press' Hairballs' blog, who interviewed me briefly this afternoon following up on themes raised in a Grits post in January.

Obama dawdling on most Texas US Attorney appointments

Apparently the Texas delegation has sorted out its druthers regarding Texas' US Attorney nominations, and now the ball is in President Obama's court. Today he announced the nomination of Judge John B. Stevens, Jr. as the new US Attorney for the Eastern District of Texas.

Heaven only know what's holding up the other appointments. The Austin Statesman reports that Texas' senators have signed off on House Democrats' selection for the Western District:

U.S. Rep. Lloyd Doggett, D-Austin, said he didn't know why the White House has held up its nomination of San Antonio lawyer Michael McCrum to be U.S. attorney for the Western District of Texas, which covers 68 counties and includes Austin, San Antonio and El Paso.

"Strengthening our justice system should have a much higher priority at the White House," Doggett said. "I don't understand why the process has taken as long as it has."

The White House doesn't comment on potential or upcoming nominations.

Doggett said McCrum, who couldn't be reached, is a highly qualified candidate for the job. He's a lawyer at Thompson & Knight in San Antonio and a former chief of the major crimes unit in the San Antonio division of the U.S. attorney's office. ...

The members of the Democratic congressional delegation have been in agreement on McCrum since late last year, when they officially notified President Barack Obama about their preference.U.S. attorneys ultimately must be confirmed by the Senate, but Doggett said Texas' senators, both Republicans, support McCrum. A spokeswoman for Sen. John Cornyn confirmed the junior senator's support. Sen. Kay Bailey Hutchison's office didn't respond.

This has gone on way too long. We're a quarter of the way through the President's term and they still don't have US Attorney nominees? There's much that needs to be done. Surely that's the kind of thing they should have been figuring out during that much-touted transition phase after the 2008 election, but here we are in 2010 still with interim USAs in three of Texas' four districts. Please, Mr. President, get on with it already.

SCOTUS: Police can still try to interrogate you after you request a lawyer if they wait 14 days

I should at least mention an important ruling by the US Supreme Court this week that moved the goalposts significantly for defendants regarding police interrogations and the right to counsel. Via SCOTUSBlog,
The Court’s decision [Wednesday] in Maryland v. Shatzer – holding that a suspect’s request for counsel is only valid for fourteen days if the suspect is released from custody during that time – dominates today’s news coverage of the Court. Jesse J. Holland of the Associated Press, Adam Liptak of the New York Times, James Vicini of Reuters, Debra Cassens Weiss of the ABA Journal, Jurist, LA Times, and all provide coverage of the case, as does NPR’s Nina Totenberg, whose story on the decision includes analysis by a law professor who describes the fourteen-day rule as “totally arbitrary” but ultimately a “good” one.
See also SCOTUSBlog's opinion recap. At the Volokh Conspiracy, Orin Kerr points out the obvious - that the US Constitution includes no "14-day rule," a number that was pulled out of thin air - and that the majority opinion by Justice Scalia on its face amounts to legislating from the bench. Kerr then gives an excellent, brief rendition of Scalia's 20 years of history on this subject that explains his enthusiasm for such out-of-character judicial dabbling.

I'm not a lawyer so maybe I'm missing something, but I can't help but wonder how this ruling will interact with the Court's Rothgery decision, where SCOTUS said a defendant's "initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." So if a defendant is assigned counsel after that initial appearance but is then released on bail, does that mean two weeks later police can now take another run at the defendant and seek a waiver in order to interrogate them outside the presence of their lawyer? That's how Scalia's opinion reads to me, but such an interpretation seems open to abuse.

Thursday, February 25, 2010

What role should crime victims play in plea bargains?

Prosecutors represent the state, not crime victims, and they're charged with seeking justice, not convictions. But the Houston Press published a feature questioning whether prosecutors should be required to notify crime victims or get their sign-off before entering into a plea deal. The Harris County DA's Office says "There is no obligation to give advance notice to all victims of plea bargains," a policy which has the Mayor's crime victim advocate Andy Kahan hopping mad.

There's a problematic conflation throughout the article of "victim's rights," which is a largely ephemeral, political idea, with legal rights of defendants accused by the state, which are enshrined in the US Constitution. The Press article is rife with examples of crime victims who say "their rights have been walked on," but those aren't legal rights, only theoretical ones the speakers think they should have. After all, as the Press notes, "The law does not provide victims any way to enforce their rights after they've been violated." And if you can't enforce a "right" when it's violated, then it isn't one - not in a legal sense, anyway.

The main example in the story probably isn't the best one for victim's rights advocates since it atypically involves a high-profile, politically connected defendant: Former US Congressman Craig Washington. His light plea deal (2 years probation) probably isn't what the average black man firing a gun at white youth could expect in Houston, regardless of the victim's wishes.

But I was interested to notice the main reason the victims say they're unhappy at Washington's plea deal: Not at the outcome but because they didn't get the chance to say their piece. The two boys who Craig Washington shot at "wanted to tell their side of the story to a jury, and made it clear to Harris County prosecutor Lynne Parsons that they didn't want to settle for a plea deal. If a jury let Washington off, so be it."

I find fascinating this overarching desire by the victims to tell their story to 12 people they do not know. Indeed, getting to tell their story, by their own account, was more important than any punishment Washington might receive. This powerful psychological need to formally, publicly speak about what happened reminds me of an analysis by restorative justice advocate Howard Zehr, which I described on Grits thusly after hearing him speak in 2007. According to Zehr:
Victims typically have many questions: Why me or why my family member? They often want to know the details of crimes, what else happened that they didn't know about, and most frequently, why the offender did what they did?

In general, said Zehr, victimization authors three crises: A crisis of identity, a crisis of relationships (who can I trust?), and crisis of meaning. Transcending these crises requires a "re-creation of meaning" of oneself and the world. They must reconfigure their lives, "re-story" their life - they must somehow create a new narrative of self.

Part of this process is encapsulating experiences of victimhood and making them part of your own story, drawing boundaries around them, trying to articulate new metaphors for self. People seldom have adequate words for this process, he said, so they use metaphors. A central part of truly restoring victims to wholeness is enabling them find new metaphors to transform their narrative of humiliation into stories of honor and vindication.

When someone wrongs us we need to be vindicated, Zehr said. Victims want to know what their own responsibility was for what happened, if any, but most importantly for offenders to take responsibility for what they did. We search for ways to replace humiliation with honor.

A particularly important insight was Zehr's observation that the failure to make victims whole contributes to future crimes, because frequently victims later victimize others. Victims become offenders when have no other outlets, he said.

To keep that from happening, victims need safety, answers, truth-telling from everyone involved (authorities as well as the offender), empowerment (which the system generally denies them) and most importantly vindication and a chance to "re-story" what happened to them in a way that lets them regain honor.

In many ways, said Zehr, the current criminal justice system denies victims almost everything they need. He quoted Judy Herman saying that if you set out to design a system to create post traumatic stress for a victim, you couldn't do better than a court of law. This theme was repeated in other conference events so far - that the court process places unfair demands on victims that exacerbate their emotional response to crime instead of help them.
Restorative justice models focus more on giving victims that opportunity to confront both their victimizer and and their own personal demons - to publicly have their say and "'re-story' what happened to them in a way that lets them regain honor." However those approaches have proven difficult to graft onto the traditional adversarial system, where there is no real avenue for victims to "reconcile differences" with offenders.

Especially without a trial (and 98% of felony cases end in plea bargains), the adversarial system seldom provides victims that much-desired opportunity to tell their story. Yet any practitioner will tell you that, without plea bargains, the entire system would collapse under its own weight. Ditto for making victims a straight-up party to plea bargains; indeed, most crime victims likely wouldn't want that responsibility.

A lot more work needs to be done to identify the best way for the legal system to satisfy these emotional needs of crime victims, and restorative justice theories may provide a good starting point for re-imagining the system. But the adversarial process as we know it probably can't accommodate those needs without taking every case to trial, which like it or not is a practical impossibility.

DPS plan would put x-rays, metal detectors at Texas capitol entrances

Texas Department of Public Safety Director Steve McCraw told the Senate Transportation and Homeland Security Committee earlier this month that DPS plans to put metal detectors and X-Ray machines at the entrances to the state capitol to aid in "gun detection." DPS solicited a security review from the US Secret Service and is in the process of updating legislative leadership on the plan.

This idea was considered and discarded after 9/11, but has apparently been revived after a man fired off gunshots outside the capitol in January after an argument with state Sen. Dan Patrick's staffers.

I've long considered the Texas Legislature one of the most "little d" democratic political institutions in the country, and a big part of what makes that true is the ability for average citizens to move freely around the capitol.

After 9/11, the Austin city council turned their offices into their own little fortress, installing metal detectors and ceasing the longstanding practice of allowing constituents to go directly to councilmembers' offices to talk to staff, the councilmember, etc.. The result was to make them much less accessible, more insular, and ultimately IMO more aloof and full of themselves. The physical infrastructure created to protect these "important people" more than the rest of us had an unintended side effect on officeholders and staff, creating an even more significant psychological distance from constituents than the physical one. The change dramatically altered the culture at city hall, very much for the worse as far as I'm concerned.

I'd very much prefer not to see that happen to the Texas state capitol.

Last session, DPS operated metal detectors going into the balconies in the Texas House and Senate chambers respectively. At times it created significant logistical problems, not just from long lines to get into the gallery, but because there are actually offices on the other side of the chambers. In at least one instance to which I was privy, the long wait to get through security actually bogged up time-sensitive legislative communications related to the innocence compensation bill. How much more frequently will that happen when everyone entering the capitol must go through the equivalent of airport security lines?

In this case the shooter fired off shots outside the capitol. Wouldn't he have more targets if there's a huge gaggle of people waiting at the door to get through the metal detector?

For that matter, most of these legislators (including Sen. Patrick) claim to be pro-Second Amendment and supportive of the right to bear arms. How does that jibe with rhetoric about the need for "gun detection," as though a gun is some scary bogeyman, even in the hands of the law abiding? How well will that message play, one wonders, with NRA members in Republican primaries?

There are plenty of armed troopers and cops at the capitol at any given moment (and often even one or two armed legislators!), plus committee chairmen can already request security at hearings if they think there's a risk. I'd much rather see them beef up staffing for capitol security than waste every visitor's time (including busloads of schoolchildren, tourists, countless lobbyists, etc.) with metal detectors, X-rays, taking off their belts and shoes, etc..

Even better: Maybe if legislators are concerned about security they should use some of their campaign funds to send themselves and their staff through the necessary training to get their concealed carry permits.

But for heaven's sake, state officials shouldn't let either fear or an overblown sense of self-importance spur security measures that degrade the fundamental culture of the institution. It's important to protect legislators, but we hold elections every two years precisely to remind each of them that they're replaceable. It's not their capitol, it's ours.

Paris, TX may be scene of next DNA exoneration

Texas may see yet another post-conviction DNA exoneration today out of Paris, TX, after DNA on an alleged murder weapon turned out not to belong to the victim or the defendant. A judge this morning will determine whether this means the defendant gets a new trial now that the main evidence against him has been debunked. Reports the Paris News:
Danny Holloway, who has served more than eight years in the Texas Department of Criminal Justice System for the stabbing death of a young Paris woman, has been returned to Lamar County Jail for an evidentiary hearing to determine if he should get a new trial in the case.

The case will be heard in Judge Eric Clifford’s 6th District Court at 9 a.m. Thursday.

Holloway was convicted in the 2001 stabbing death, but DNA tests determined the knife allegedly used in the stabbing could not have been used to kill her.

The tests, ordered by Clifford last year and performed by Southwestern Institute of Forensic Sciences in Dallas, show the knife used to convict Danny Holloway was likely not the weapon that killed Ashley Lee during a fight outside a north Paris night club in July 2001.

At the time of the death, forensic DNA testing was either not available or available but not technologically capable of providing probative results. ...

There were no latent fingerprints on the knife, and Holloway was never connected to the knife by evidence.

Holloway’s Arlington attorney, John Stickles, said he asked for the hearing “to determine if Holloway should get another trial.
I'll update the story later today when we find out how Judge Clifford rules.

UPDATE: Via AP, "Texan to receive new trial after DNA test on knife."

Wednesday, February 24, 2010

CA prosecutors dismiss high-profile case based on false results from Texas forensics expert

A speaker at today's Indigent Defense Summit referenced a high-profile case dismissed in northern California this week after it was discovered that Houston-area forensic lab called Expertox allegedly generated false lab results that were later debunked by multiple other scientists.

The speaker from the San Mateo County private defender office used the case as an example why attorneys for indigent defendants need access to money to hire experts. In this instance, he said, if attorneys hadn't had resources to secure specialized labwork from France and elsewhere, they couldn't have debunked what turned out to be faulty (and possibly fraudulent) labwork performed in Texas.

Interested in the local connection, I Googled and found this account of the story from the San Jose Mercury News ("Molestation case against San Carlos man dropped," Feb. 22), describing dismissal of all charges against a fellow:

who was arrested and charged in 2007, adamantly denied all of the allegations and is currently in divorce proceedings with his wife, defense attorney Geoff Carr said.

Carr said Monday's decision came after the defense raised doubts about the credibility of lab results from a forensic expert in Texas who tested a sample of the woman's hair for GHB.

"It's pretty damn clear what we've been saying for some time is true, that this lab had fraudulent results," Carr said.

Carr said the expert's results showed very high levels of the drug, while a lab in France hired by the defense showed naturally occurring levels of GHB in the woman's hair.

Chief Deputy District Attorney Steve Wagstaffe said prosecutors intended to call a Southern California expert to explain the discrepancy between the Texas and French lab tests. But Wagstaffe said prosecutors discovered last week that a third forensic expert in Hayward also tested the hair before it went to Texas and similarly cast doubt on the Texas lab's findings.

"This expert over in the East Bay did not believe the results from Texas were reliable," Wagstaffe said. "With that information, it became apparent to us this was not evidence we could rely on in attempting to convict a man."

Another story declared that "labs in France, Canada and Chicago who looked at the [Texas lab's] work said it was 'completely wrong and actually fabricated,'" identifying the scientist who performed the tests as Dr. Ernest Lykissa.

Indeed, Lykissa's results were so problematic that it's possible they'll result in their own criminal case: "Prosecutors have also not ruled out criminal charges in the chain of events which led to the test results on which they based their case," reported the San Mateo County Daily Journal yesterday. Today's speaker also said it was his understanding prosecutors are considering charges against the Texas scientist.

Beyond the links provided, I don't know anything about the lab or this case and perhaps there'll turn out to be a good explanation for the error. But that was a pretty big bomb dropped at the summit in the midst of an otherwise mundane discussion of indigent defense economics!

Harris County owed millions by bond companies for bail skips

In a must read story, Lise Olsen reported yesterday ("Bail bonds no bounty for Harris County") that "A Houston Chronicle review shows 500 current and former bond companies and individuals still owe taxpayers more than $26 million in default judgments, some dating back decades."

The whole story is so chock-full of journalistic goodness I won't excerpt it so you'll go there and read the whole thing.

Just one quibble: Olsen wrote that "various studies" show just five percent of surety bond clients fail to show up for court, but that figure sounds low to me. In Tarrant County, for example, defendants with surety bonds had a 16% no-show rate, Fort Worth Weekly reported a few years ago. A 2007 federal report (pdf) put the national failure-to-appear rate for surety bonds at 20%. Perhaps it depends on who's funding the study?

It's also worth mentioning that some 90% of absconders in Houston, according to the Texas Fair Defense Project's Andrea Marsh, are brought in by law enforcement officers, not surety bondsmen. So in addition to bond companies not always being financially responsible, most defendants who skip aren't caught by bail bondsmen, Dog the Bounty Hunter notwithstanding.

Given these outcomes - the lack of financial responsibility for absconders and the fact that law enforcement already pick up most no-shows in Houston - using personal bonds instead of commercial bail for lower-risk offenders makes more sense to me all the time.

Charles Hood death sentence thrown out: Texas CCA admits it 'completely misunderstood' SCOTUS for past 20 years

Here's another astonishing development in the increasingly infamous Charles Dean Hood case: The Texas Court of Criminal Appeals this morning threw out Hood's death sentence (!), not because the judge and prosecutor were sleeping together (which wasn't an issue for six of them) but instead thanks to a flip flop over claims about flawed jury instructions that the court had earlier rejected. The Associated Press reports that:

The Texas Court of Criminal Appeals has thrown out the death sentence of a convicted killer whose case has been dogged by admissions of an affair between his trial judge and the prosecutor.

The court, in a split decision, says Charles Dean Hood is entitled to a new punishment trial because jurors were not allowed to consider mitigating evidence that could have convinced them he didn't deserve a death sentence.

Wednesday's ruling makes no mention of the affair between the judge and prosecutor in Collin County in suburban Dallas. Last year, the same court refused Hood's appeal for an entire new trial.

Hood, now 40, a former topless club bouncer, insists he's innocent of the 1989 fatal shootings of 26-year-old Tracie Lynn Wallace and 46-year-old Ronald Williamson at their Plano home.

Though it doesn't mention at all the now-admitted affair between the trial judge and prosecutor in Hood's case, this is a major decision which basically amounts to a mea culpa by the CCA majority about its past rulings in an array of similar cases. From Judge Cochran's majority opinion:

This is all very awkward. To grant a Texas death-row inmate relief on his subsequent Penry I and Penry II claim under the recently decided Tennard, Smith, et al. cases, we must find that those decisions announced new law, but the federal courts cannot grant relief on those very same claims unless they find that Texas courts misapplied clearly established law at the time of the relevant state-court decision. Hence, a death-row inmate must argue in this Court that Tennard, Smith, et al. announced new law, but, once he arrives in federal court, he must argue that those same cases simply reiterated clearly established law. There is no logical way in which Tennard, Smith, et al. can simultaneously be both "newly available law" for state-court purposes and "clearly established law" for federal-court purposes.

This conundrum has produced starkly different descriptions and versions of the historical development of Penry law. In each of the five most recent cases, the United States Supreme Court majority has been at pains to emphasize that "well before our decision in Penry I, our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty[.]" Thus, Penry itself did not announce new law, nor did the five most recent cases, Tennard, Smith I, Abdul-Kabir, Brewer, and Smith II. Under the majority's reasoning, this Court (along with the Fifth Circuit) completely misunderstood the scope and applicability of Penry for almost twenty years and reached "'decision[s] that [were] contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States'" in virtually all of our Penry cases. Had the Supreme Court concluded otherwise, it could not have granted relief to any of the habeas corpus applicants in Tennard, Smith I, Abdul-Kabir, Brewer, or Smith II.
Judge Keasler's dissent sounded downright furious at this 180 degree reversal in course. I'd suggested in this Grits post from 2008 that staying Hood's case on these grounds amounted to a near-explicit admission of error by the court, but I never expected the Texas CCA to overtly admit that they'd "completely misunderstood the scope and applicability" of a Supreme Court ruling "for almost twenty years." As I wrote back then:
I can think of only two possible explanations for this odd and surprising move by the court: Either the CCA egregiously erred last spring by failing to accommodate Smith v. Texas, or else the court is now using this issue as a stratagem, the way an illusionist uses misdirection, to avoid revisiting their colleague's admitted misconduct. Neither reason reflects well on the court.

Given today's developments I now think both explanations may be correct. A plurality on the CCA now believe that "Texas courts misapplied clearly established law" in Hood's case and others like it, but I also continue to suspect that judges chose to revisit the issue (and perhaps timed the release of today's opinion) to deflect heat generated by their past rulings in this case protecting their former colleague.

I've no idea what the implications of this decision might be for the recent request for the US Supreme Court to hear Hood's case, but I hope it doesn't derail efforts to get a SCOTUS ruling on the separate issues raised by the trial judge and prosecutor's long-concealed liaisons.

Indigent Defense Summit today

An "Indigent Defense Summit" begins at 9 a.m. this morning at the Texas capitol with opening remarks from state Sen. Rodney Ellis. You can watch the day-long event online at this link. Here's the agenda (pdf). I can't attend but plan to watch as much as I can online.

Shocker of the Day: DOJ rarely disciplines its prosecutors

Let me refer readers to a good overview of deficiencies in federal oversight of prosecutorial misconduct by the DOJ Office of Professional Responsibility from the blog EmptyWheel, following up on analyses by Mike at Crime and Federalism and recent journalistic critiques. EmptyWheel is a partisan Democratic blog setting the stage for a series on torture politics, which is beyond Grits' purview. But their preliminary discussion of lax federal infrastructure overseeing DOJ prosecutors, relying mostly on OPR annual reports and recent testimony from DOJ's Inspector General, interested me much more.

To bottom line the concern: Very few federal prosecutors are disciplined by DOJ, even when judges found they engaged in serious misconduct. Further, DOJ's independent Office of Inspector General has no authority to investigate misconduct by Justice Department attorneys, whose misconduct is instead investigated by the Office of Professional Responsibility,
which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government.
In 2007, according to the most recent OPR annual report, DOJ received 906 complaints of misconduct by its attorneys but only opened investigations in 71 cases. Of those, they found negligence in 22 instances and intentional misconduct in only one, initiating discipline in just 14 cases, or just 1.5% of complaints.

What's more, it's not like all these dismissed allegations are coming from crackpots. An overwhelming majority (75%) of complaints resulting in investigations came federal judges, according to the annual report, so this low rate of affirmative findings either means quite a few judges are making false allegations against DOJ prosecutors, or else the OPR is a toothless watchdog. My money's on the latter.

According to the OPR annual report, the most common allegations investigated were:
  • Abuse of authority, including abuse of prosecutorial discretion: 23%
  • Improper remarks to a grand jury, during trial, or in pleadings: 16%
  • Misrepresentation to the court and/or opposing counsel: 17%
  • Failure to comply with Brady, Giglio, or Fed. R. Crim. P. 16 discovery: 12%
  • Interference with defendant's rights: 9%
But perhaps the biggest questions surround those complaints they chose not to pursue at all: What were their topics? How many came from judges, fellow prosecutors, etc.? I'm curious, for example, how many total complaints about Brady violations (failing to hand over exculpatory evidence) the OPR received, but they report tells us little about the majority of complaints OPR chose not to investigate.

I'm pleased EmptyWheel chose to address these questions, but it's important to keep in mind that these are institutional problems, not partisan ones. They're raising the issue in preparation for a critique of Bush torture policies and the failure of DOJ to condemn attorneys like John Yoo. But criticisms of the structural flaws in DOJ's ability to hold its attorneys accountable apply equally - indeed, perhaps even more directly - to less politicized, more workaday misconduct, a situation that without question persists in the Obama/Holder administration.

DOJ's Inspector General suggested in recent testimony to Congress that authority to investigate misconduct by DOJ attorneys should be made independent, shifting it under the OIG's domain. That might be a good start, but by itself it can't change departmental culture if DOJ leadership and supervisors aren't thoroughly committed to enforcing ethical obligations among prosecutors.

What should concern us most aren't the high-profile, exceptional cases of DOJ overlooking attorney misconduct, but the fact that the same culture of denial permeates the justice system, both at federal and state levels. (Don't believe it? In Texas our courts still want to execute you if the prosecutor and judge were sleeping together during your capital murder trial.)

In a related post, Tom Kirkendall at Houston's Clear Thinkers connected the dots between more mundane prosecutorial misconduct (his focus is on white-collar cases) and the partisan catfights in Washington over torture: "Our failure to hold governmental officials responsible for abuse of power toward our fellow citizens helped create the culture in which the leap to sanction torture against enemy combatants was a small one.," he lamented. "That culture will be very difficult to change."

Tuesday, February 23, 2010

Stay warm

We got just enough of a snow flurry in Austin today for a little to stick on the ground a couple of hours. Watching my dogs leaving tentative footprints and yellow trails in the snow before begging to be let back inside recalled a photo I noticed recently via the Texas State Troopers Association - a shot from Feb. 11 in Midlothian southwest of Dallas that reminded me, as if it were needed, that central Texas winters are ridiculously mild (the upside, I suppose, of living with 100 degree summer days and the semiannual threat of flash floods):

Brrrrr. Just looking at that photo makes me want to turn up the heat. Good camera shot by Trooper Rick Smith.

Stay warm, folks.

Budget cuts at Harris jail could preclude expansion plebiscite

Demands by the commissioners court that Harris County Sheriff Adrian Garcia cut tens of millions from his department's budget could put the kabosh, one would think on a plebiscite to expand the jail which had been suggested for later this year. Reports KTRK-TV:
Harris County Commissioners are trying to figure out how to make up for falling tax revenues. The sheriff's department has already cut more than $34 million from its 2010 - 2011 budget, and we're told commissioners may ask the department to shave off another $15 million.

Most of the original cuts came from overtime and spending on the county jail. There's no word yet on what effect the new cuts could have when it comes to public safety.

The Harris County Jail was already understaffed and relying on overtime to house the number of prisoners it holds now. Reduce that overtime and capacity will drop further. Given that the Sheriff can't adequately staff the facilities he's running now, I don't see how on earth anyone could think they can afford to build and staff even more capacity.

One silver lining surrounding the current budget crunch is that it's forcing corrections agencies at all levels to rethink incarceration policies instead of continually expand prison and jail capacity. The Sheriff and some judges in Harris County have heretofore behaved as though they were immune to such macro-level concerns. But at least during the next couple of budget cycles, Harris officials must seek more creative, less expensive options to pretrial detention or raise taxes to build and staff more jail cells. And by all appearances, new taxes aren't presently on the table.

To their credit, some Harris County judges have been quietly taking steps to reduce jail incarceration rates. As of February 1, the county housed just more than 9,400 inmates in a jail with a capacity of 11,000; another 1,100 are housed out of county (many in Louisiana). The reason is staffing: If those 1,100 were brought back to Harris County they'd theoretically have space to put them, but not enough warm bodies to guard them.

That's why, if Harris County slashes Sheriff Garcia's budget this greatly, he not only won't get to build more jail space, he must begin to seriously concern himself with reducing inmate numbers to safely operate the understaffed facilities he has now, which already faced their own challenges. In this case, I'm convinced that's a good thing; it will force county leaders to make tough choices they wouldn't otherwise have the political will to make, starting with Sheriff Garcia and the criminal court judges.

UPDATE (2/24): The Houston Chronicle has more on growing jail costs and staffing shortages:

A growing jail population has fueled a 66 percent increase in sheriff's spending during the past four years.

The sheriff has spent about $34 million this year alone on overtime, much of it to cover shifts at its understaffed jail. A consultant's study in December concluded that the county has 342 fewer jailers than it needs.

“It begs the question as to whether or not the number of employees he has is enough,” said Precinct 2 Commissioner Sylvia Garcia. “If it's not, then let's hire the people with the same money we're spending on overtime.”

Emmett, too, suggested that hiring more deputies could actually save the Sheriff's Office money.

The budget office imposed a hiring freeze last October.

You love to fly and it shows

Bruce Schneier, who is a frequent critic of pointless airport "security theater" (a term he coined) held a contest to create a humorous new logo for the Transportation Security Administration. Upon describing some of the entries to the missus, she instructed me, "Put a link to that on your blog so I can look at it later." "That's not a Texas story," I grumbled, to which she replied, "that's okay, your readers will appreciate it." Sigh. Sometimes in life it's easier to do as you're told, so here's a link to all the entries, the finalists, and the ultimate winner. Several were quite funny, but this was my favorite:

TYC sex abuse case in Pyote will finally begin soon

The trial of former TYC administrator Ray Brookins - who was accused of sexually assaulting youth under their care at the West Texas State School in Pyote - is scheduled to begin April 20, some three years after charges were filed. The Odessa American has an article today covering a pretrial hearing in which the two sides debated whether pornography and sex toys in Brookins' possession at the facility could be admitted as evidence (the judge will rule later, prior to the trial). The defendant's lawyers say it would be prejudicial, while the prosecution says it corroborates students' accounts. See the full story for more detail.

Monday, February 22, 2010

Will SCOTUS benchslap Texas CCA for tolerating judicial tryst?

The New York Times' Adam Liptak today reviewed the request by Charles Dean Hood for the US Supreme Court to decide whether Hood's due process rights were violated because the prosecutor and judge in his capital murder case engaged in a romantic affair. (The Texas Court of Criminal Appeals already signed off on the arrangement.) From his assessment of recent, thematically related cases before SCOTUS, it sounds as though Liptak thinks the high court may well take the case and side with the defendant:

The Supreme Court has lately taken some interest in the integrity of the judicial system.

Last year, it ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

“The probability of actual bias on the part of the judge,” Justice Anthony M. Kennedy wrote for the majority, was “too high to be constitutionally tolerable.”

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift — a penis made of chocolate.

“From beginning to end,” the unsigned majority decision said, “judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”

To review the bidding: Campaign spending may undermine the integrity of the judicial system. The same goes for a gag gift of confectionary genitalia. But a love affair between the judge and prosecutor in a death penalty case is, in Texas, at least, another matter.

Liptak writes that Judge Holland is angry with Hood's lawyers for “annihilating my reputation," but as far as I can tell, she has no one but herself to blame on that score. She indulged in a secret sin. She admits that, because of that secret, if she'd been asked to recuse herself she would have done so. But because she concealed the information (and the DA actually lied about it) nobody knew to ask her to do the ethical thing and remove herself from the case. That Judge Holland thinks anybody but her is responsible for that chain of events beggars belief. She may be unhappy she got caught - that much I understand - but the only thing annihilating her reputation is the truth that finally came out and her self-serving delay in telling it.

Between Judges Holland and Keller, the last week has been a particularly unhappy one for current and former Court of Criminal Appeals judges. Both women blame their accusers for their troubles, not seeming to understand that the biggest disgrace wasn't necessarily their initial misbehavior but their continued, defiant insistence that no one had the right to hold them accountable.

These aren't the first examples of egregious judging from the Texas Court of Criminal Appeals, but they're arguably the highest profile ones yet. Yet another benchslapping from SCOTUS, this time over sexually tinged misconduct by a former CCA judge, probably won't be enough in this author's opinion to cause the court to change its ways. That must ultimately happen at the ballot box. The Hood case shows that simply having become a national laughingstock clearly has had little impact on the court's self-satisfied behavior.

MORE: From Rick Casey at the Houston Chronicle, "Best clue: The case of the erotic candy."

See related Grits coverage:

House Corrections Committee has much to discuss regarding probation/diversion programs

The Texas House Corrections Committee will meet March 17 at the capitol to discuss one of its interim charges:
Charge 2: Study and evaluate the availability and efficiency of community-based corrections supervision and treatment programs and their impact on prison capacity and recidivism rates. Determine whether the supervision and treatment programs have been designed in accordance with evidence-based practices and whether adequate evaluation methods have been incorporated.
Among topics I hope will be discussed:

Why wasn't a new annual report on diversion programs published in December? The latest information publicly available (pdf) is pretty dated. Here's the latest evaluation (pdf) of diversion programming and Grits' writeup of the document, which gives a lot of background on how programs are working.

The committee should question TDCJ's decision to focus possible budget cuts on diversion programming instead of selectively closing the most expensive and inefficient prisons. If cuts to diversion programs would increase recidivism and thus the inmate population, as TDCJ has said, wouldn't it make sense to increase investment in community supervision and reduce prison spending by closing facilities?

I hope they also interrogate TDCJ's suggestion for reducing the budget for "underutilized treatment programs." Why exactly aren't those programs being used? Are they simply not needed or are there barriers to wider use? Did the Lege authorize inpatient beds when probation departments more immediately needed more outpatient treatment, as one probation director has suggested? Will they be needed in the future or should they be taken offline? Why were the state's need projections off? There are a lot of questions here.

Also, why have Bexar and Collin counties, in particular, thumbed their noses at best practices they agreed to utilize when accepting sizable state grants for diversion programming? What can be done to bring these wayward counties into compliance? Should they continue to receive these grants if they refuse to use the money for the purpose it was given?

Since they're charged with determining whether programs fit best practices, I'd like to hear a discussion regarding whether best practices for drug courts should include mandatory treatment, or assign it on a case by case basis after failures in a stronger probation regimen. The much-praised HOPE program out of Hawaii takes the latter approach with reportedly excellent success.

Overall, given the state's need for large budget cuts looming darkly over the horizon, I hope the committee will explore in detail the relative cost-benefit analysis of prisons vs. community supervision. They should press witnesses to identify alternative budget-cut scenarios that would preserve diversion programming and build on recent successes at reducing prison populations, recidivism, and crime.

This hearing should provide a lot of new, more current information about the state of Texas' diversion programming. It should also give us a sense of how legislators feel about TDCJ focusing budget-cut suggestions on probation and staff in ways that seem destined to fill up prisons and wipe out hard-fought improvements by the community supervision system that reduced crime and saved taxpayers money.

Taking the easy way out: Dallas police substitute 'knock and talk' for real investigation

Last Wednesday at the Dallas News Crime Blog, Steve Thompson reported that:

Dallas police began a new initiative today to combat drugs. Citywide, officers are headed to suspected drug houses to "knock and talk" with the occupants.

The technique involves knocking on the door of a suspected drug house and trying to talk the people inside into inviting officers in to search without a warrant. Police can enter without a search warrant if they see illegal activity happening.

Dallas police have long used the technique, but its use will be widened during the next few months to include more officers and more areas within the city. ...

"We're doing this to close these particular locations down," said Deputy Chief Rick Watson at Southwest Patrol, who is heading up the effort.

I'm always amazed that anybody - much less anybody with a drug stash in their house - would consent to a police officer searching their home without a good reason or a warrant. That said, such methods have stood up in the past as a legal tactic under current 4th Amendment case law (depending on what's said and done at the door). Crooks and non-crooks alike are intimidated by police and most folks don't know their rights in such situations, so often they'll acquiesce. Given how drivers react when police ask to search their vehicles (almost always consenting), there's good reason to believe many would do the same at their residence.

On the flip side, this is lazy police work that lends itself to abuse when neighbors start calling the cops on one another or officers use the tool perniciously. As I wrote in the comments at the Dallas News Crime Blog, "If these are 'suspected drug houses,' presumably they have reason to suspect them. Why not investigate, establish probable cause and get a search warrant?" Taking morally dubious shortcuts seldom pays off in the long run.

I also suspect, since officers' unstated goal during these visits is to "close these particular locations down," that these targets won't be expressly told they can refuse the search if they choose to do so. That knowledge makes a big difference as to whether people consent, though courts have ruled police don't have to tell them they have that right. In Austin, after APD began requiring informed written consent for searches at traffic stops, the number of vehicle searches performed without probable cause declined 63%.

If Dallas police were serious about ending drug dealing in these neighborhoods, they wouldn't be looking for shortcuts based on rumors but applying strategies with more proven track records. The most successful approach I'm aware of is the High Point model, where police actually investigate, make cases on individuals, then confront them and their families with evidence in an effort to coerce them to change their behavior. Without that community assistance, a new crackhouse pops up as soon as you get rid of the last one. But it's hard work to empower communities to confront crime, while doing "knock and talk" in response to unverified complaints from neighbors basically amounts to engaging in fishing expeditions that require few investigative resources.

The "knock and talk" tactic will inevitably result in arrests here and there, but it won't solve the problem, may create a few, and amounts to taking the easy way out without reducing the city's drug problem.

Sunday, February 21, 2010

US Attorney should step in if Dallas DA won't pursue allegedly corrupt constables

I agree with most of what the Dallas News had to say in this editorial yesterday calling for District Attorney Craig Watkins to investigate and prosecute alleged crimes and abuses by Dallas County constables. Opined the News:

As Watkins is quick to point out, if anyone is going to investigate allegations that county constables broke the law, it's going to be him and his office. By statute, that's his call, and he won't be pushed into anything by any county commissioners or outside critics. No special prosecutors or Attorney General's Office busybodies need apply.

So get to work, Mr. DA.

The Defenbaugh report relies on the sworn affidavits of 23 constable's deputies and clerks and other county employees, all obtained without subpoena power. The absence of subpoena power, you'll recall, was one of Watkins' many specific objections to County Judge Jim Foster and other commissioners deciding to hire Defenbaugh to conduct a civil investigation into Cortes and Precinct 1 Constable Derick Evans.

Watkins correctly notes that only his office had such subpoena power and either was – or wasn't – working its own investigation into the same allegations raised by Cortes and Evans employees. Sadly, it was next to impossible to get a straight answer from the district attorney, which is what forced the commissioners to act. Remember, these allegations supposedly hit Watkins' office in June; commissioners didn't vote to hire Defenbaugh until Sept. 1. (His preliminary report on Evans is not yet complete.)

Anyone who chooses to read the Defenbaugh report on Cortes will learn that what began as allegations of a shady relationship with a towing company now spirals into accusations of bribery, kickbacks, official oppression against employees and an unusually sweet deal for one of his deputies identified as his "paramour."

All obtained without subpoena power. Imagine that.

Instead of battling commissioners tit-for-tat with lawsuits and fast-and-loose handling of grand jury testimony, Watkins, who again declined last week to discuss the matter, has real work to do now. Since he played the constable situation from the start as a political issue, rather than a criminal case, he now resides in a small box.

The way out is to bring a criminal prosecution. That's about it. Replicate the sworn interviews with Defenbaugh's team to satisfy the standards needed for a criminal trial and use that well-guarded subpoena power to compel other witnesses. It's a shame voters weighing the Cortes and Evans re-election bids in the March 2 primaries won't get an answer in time, but that clearly wasn't the DA's concern.

Still, if Cortes and/or Evans ever face justice, everyone who reads the Defenbaugh report can suspect that Watkins and his office never would have gotten there without a blatant shove from county commissioners.

I differ from the News on just two points. First, perhaps they should be urging acting Northern District US Attorney James Jacks, not Craig Watkins, to look into allegations of public corruption. After all, if the DA wanted to pursue these cases, he'd have done so long before now.

Second, the News accurately says Watkins painted himself into a political box, then declares "The way out is to bring a criminal prosecution." But I don't care how much political trouble he's in, the DA shouldn't pursue prosecutions just to get himself out of a political jam, but only if there's a legitimate case to be made (which from the Defenbaugh report, there appears to be). That's another good argument why the US Attorney should step in; the DA has backed himself into a damned-if-you-do, damned-if-you-don't position that threatens to leave a cloud over the matter regardless of the outcome.

Whether this feud between the DA and the Commissioners Court is as petty and ego-driven as it appears from the outside, or whether there's some darker, subterranean reason Watkins wouldn't pursue these cases, I cannot say. Going forward, though, Watkins' continued refusal to either act himself, bring in a special prosecutor or seek help from the Attorney General would threaten his long-term credibility in ways that just aren't worth it. Mr. Watkins needs to put the conflict behind him and admit the county judge was right to be concerned about the constables.

The Dallas Observer helpfully supplied a link to the full 92-page report. The constables themselves, of course, are denying every word. I've just skimmed the document, but it alleges overt corruption and abusive employment tactics (especially wringing deputies for campaign assistance) that really do need to be vetted for criminal wrongdoing - particularly allegations of kickbacks from towing contracts. If Watkins won't do it, the acting US Attorney should (or the new one, whenever Obama gets around to appointing them).

RELATED: Dallas County Judge seeks constable's civil removal.

Friday, February 19, 2010

Fort Hood shooter may be housed in Bell County Jail

Some national politicos have worked themselves into a tizzy over whether alleged terrorists should be brought to New York City and put on trial for the 9/11 attacks. So it's an especially odd juxtaposition from that debate to learn that the Fort Hood shooter Maj. Nidal Malik Hasan may end up awaiting trial in the Bell County Jail, according to KWTX TV:

Bell County Sheriff Dan Smith confirmed Friday that his office and Fort Hood officials have been talking for several weeks about transferring accused Fort Hood gunman Maj. Nidal Malik Hasan from a San Antonio military hospital to the Bell County Jail.

Hasan is charged with 13 counts of murder in the shooting rampage on Nov. 5, 2009 at the post’s Soldier Readiness Center that left 13 dead and 29 injured. He was left paralyzed in an exchange of gunfire with two civilian police officers who are credited with ending the massacre.

For 15 years, the Bell County Jail has had a contract with Fort Hood for housing military prisoners charged under the Uniform Code of Military Justice.

“Because of this existing contractual relationship,” Smith said, “Fort Hood has asked me to consider housing Hasan in our jail.”

I've never completely understood what folks are upset about regarding the 9/11 terrorists being brought to New York City, but if Bell County is up to the task, Mayor Bloomberg and Co. should be able to pull it off in the Big Apple. And you know what? I'm willing to bet it will work out just fine in Belton, just like it would in NYC.

Ticket roundups are taxation masquerading as a public safety initiative

Williamson County District Attorney John Bradley called the Driver Responsibility surcharge "taxation masquerading as a public safety initiative," and I can't think of a better description for these increasingly common "ticket roundups" like the one more than 250 Texas law enforcement agencies will participate in March 6. Whenever I see these I think that 1) the jurisdiction is mainly hoping to mulct taxpayers for money, not prevent crime, and 2) they're filling jails with petty offenders who don't need to be there, generating hidden costs on the back end.

Given the scope of "wanted" Texans, "roundup" really is the right word and the livestock imagery appropriate - if they "rounded up" everybody you're talking about a staggering number of people. More than 10% of Texas adults have outstanding arrest warrants. In Collin County, more than one third of arrest warrants are for failure to pay tolls. Unless counties have jail facilities the size of the Chicago stockyards, there's just no way to arrest everybody with an outstanding warrant.

Anyway, very few of these people pose a threat, but instead represent a profit center for government to squeeze when money gets tight. Unfortunately, that's also when things are tight for people of modest means, many of whom probably would have paid the fines - particularly these blasted surcharges - if they could afford them in the first place.

Yes, perhaps people with warrants can take money from the car-insurance bill or the family grocery budget keep from going to jail - and certainly many will - but they'll resent it for the same reason Americans resent taxation in the first place, knowing full well that this backdoor path to their wallet is not justice but mere government avarice.

Dallas, Sugarland locals to TDCJ: Move, please

I mentioned in the last post that local political interests wanted to close the Central Unit in Sugarland, but neglected to add that the Dawson State Jail in downtown Dallas similarly stands in the way of development the city would like to promote along the Trinity River. The Dallas News reported in December 2008:

"The [state] jail is sitting right in the middle of the biggest development project in our city, so we've got to do something," Dallas City Manager Mary Suhm said.

But the Texas Department of Criminal Justice, which owns the facility, has never relocated a jail at a city's request.

"Those are beds we need," said agency spokeswoman Michelle Lyons. "Absent the Legislature's direction, we have no plans to move this jail."

So those are at least two state-owned units which would likely face little local opposition if the state decided to close them. The Dawson state jail is in the district of soon-to-be-former state Rep. Terri Hodge, who opposed moving it largely because of where they proposed to build the new one. But if the state simply reduced capacity overall, there'd be no problem with siting a new facility.

I've long thought it'd be relatively easy for the Lege to take pressure off state jails, in particular, if they'd accept the bipartisan recommendation from Houston judges to reduce less-than-a-gram drug crimes to Class A misdemeanors (a suggestion then-House Corrections Chairman Ray Allen first proposed back in 2003, and which in more recent years has been championed by state Rep. Harold Dutton). If they did so, it'd be possible to close the Dawson State Jail, boost economic development in downtown Dallas, and contribute immensely to long-term budget savings across the board.

Might private prisons face budget cut axe?

Nicole at Texas Prison Bidness makes a good point: Politically, the easiest prison beds for the state to cut as a result of the coming predicted budget crunch might be those operated by private contractors.

She observed that the Department of Criminal Justice already suggested the possibility of eliminating 817 private prison beds, saving $10.7 million this biennium. Given that the state already has 2,300 beds worth of excess capacity, that should be done as soon as practicable.

She also noted with approval that "Senator John Whitmire, who chairs the Criminal Justice Committee, has specifically mentioned [the possibility of closing] the Mineral Wells lockup which is managed by the Corrections Corporation of America." (See Grits' discussion of those comments.)

Tack onto those suggestions the fact that TDCJ has replacement contracts with several private facilities it's scheduled to renew in the next 12 months - something they revealed in their budget-cut proposal earlier this week - and the state could soon see more opportunities for reducing excess beds. To the extent the state has excess capacity, it makes a lot of sense to eliminate those contracts going forward and absorb the prisoners back into state-owned units.

Of course, I still think there are several state-owned facilities that merit closure, but with the exception of the Central Unit in Sugarland (where the Chamber of Commerce crowd wants the unit closed to make way for airport-related development), those decisions would probably generate greater political backlash than simply reducing private capacity.

Texas AG: Sheriffs can't accept extra pay from private prison contractors

See the opinion (pdf) and coverage from Texas Prison Bidness.

Sex Parte Redux: SCOTUS should "remedy appalling acts by a judge and officer of the court" in Charles Hood case, since Texas CCA won't

Bully for the Constitution Project and the former federal judges and other officials who signed an amicus brief requesting the Supreme Court of the United States hear the Charles Dean Hood case, in which the Texas Court of Criminal Appeals denied a habeas petition without giving a reason after the trial judge and prosecutor lied about or concealed an affair that occurred before and possibly during the trial. Reports the Dallas News Crime Blog:

A former governor, a former district attorney, a former U.S. attorney from North Texas, and the former director of the FBI are among a group of 21 lawyers who have petitioned the U.S. Supreme Court to hear a controversial Texas death penalty case.

The group, which was organized by the Constitution Project, is asking the court to hear the case of Charles Dean Hood, who was sentenced to death for killing two people in Collin County in 1989. Hood's case has garnered national attention not for the horrific crime, but because the prosecutor in the case had an intimate relationoship with the judge.

See the Constitution Project's press release. According to the petition, "Amici are deeply concerned that, if the judgment [by the Texas CCA] is allowed to stand, the Due Process Clause’s guarantee of fundamental fairness—especially in death penalty cases— will be imperiled, and public confidence in the courts will suffer."

The brief asserts that "the Due Process Clause forbids a trial judge from presiding over a criminal proceeding in the circumstances presented here." SCOTUS should intervene, they said, because it "has an extraordinarily strong interest in preserving the reputation of the judiciary—in particular affirming the courts’ willingness to recognize and remedy appalling acts by a judge and officer of the court that violate fundamental fairness."

It's worth mentioning that all but one of the sitting members of the Texas CCA served on Texas' high criminal court with the judge in question - Verla Sue Holland - so there's an appearance that they declined to correct this obvious error out of an excess of collegial deference (read: cronyism). Only three CCA judges - Cochran, Price, and Holcomb - dissented to that embarrassing ruling. (Good for them, btw - I'm sure there was pressure to do otherwise.) So whether or not SCOTUS reviews the case, the majority of judges on the Texas Court of Criminal Appeals have already affirmed their un-willingness to "recognize and remedy appalling acts by a judge and officer of the court that violate fundamental fairness."

This is perhaps an even more embarrassing, despicable spectacle than Presiding Judge Sharon Keller's defiant insistence that she'd repeat her behavior from the "We close at 5" imbroglio. Keller, at least, is just one vote on the court. But here, five others joined her in shirking their responsibilities to protect their ex-colleague, and not on the spur of the moment, as in Keller's infamous decision that got her into trouble, but in a deliberative setting when they had full power to right the wrong.

One bad apple could perhaps be overlooked, but in this case the barrel's spoiled. Hopefully SCOTUS will take the case and clean up the Texas Court of Criminal Appeals' mess, again.

See related Grits coverage:

Thursday, February 18, 2010

New Driver Responsibility rules unveiled today at DPS

Despite recent coverage in the Dallas News declaring proposed amendments to the Driver Responsibility surcharge had been dropped, the Public Safety Commission today will take up proposed revisions to the rules, which haven't yet been publicly released. I'm headed up there to hear the presentation later today on their revised proposal. Here's their meeting agenda (pdf).

UPDATE (5:14): Despite concerns expressed by key commissioners that they were too weak, the Public Safety Commission today approved publication in the Texas Register of a scaled back version of new indigency rules. I couldn't get a copy today, but in the public presentation by Drivers License division chief Michael Kelly, eligibility under today's proposal would be limited to those who:
  • Are at 125% or below of federal poverty levels
  • Submit supporting documentation (yet to be determined)
  • Provide proof of insurance
  • Make a one-time payment per surcharge owed ($500 for DWI; $250 for no insurance, $150 for no drivers license)
Unfortunately, that's a radically scaled back program compared to what Kelly suggested to the PSC last summer. But commissioners emphasized that they may decide to strengthen the proposal depending on what came out in the public hearing and comment period.

Kelly said the proposal had been revised because the comptroller told them it would not be budget neutral - calculations which to my knowledge have not been made public. I'd really like to see those, because as far as I can tell, collection rates are already so low there's a good chance a broader amnesty program would significantly improve collections.

Right now, DPS collects just 37% of Driver Responsibility surcharges owed, which is actually higher than other states (New Jersey's similar surcharge has a 25% collection rate, the commission was told.) What's more, after several months sending debtor-drivers more strongly worded collections-oriented letters, which had been touted as a way to increase returns, there was no significant increase at all and collection rates remained at 37%, commissioners were told today.

That means that 63% of those owing surcharges (a number which accumulates over time) aren't paying anything at all. If expanding an amnesty program beyond 125% of poverty (as DPS staff suggested last summer) enabled a significant percentage of those folks to pay the reduced fee, that's actually money coming in the door that the state wouldn't otherwise see.

What's more, there's more economic harm done by the surcharge than just to the state budget. Drivers who lose their license because of surcharges can't buy insurance. (Roughly 25% of Texas drivers are uninsured.) So any economic analysis should include on the debit side of the ledger the costs from accidents involving uninsured motorists facing unaffordable surcharges. Ditto for costs to county jails and court for processing the increasingly vast number of no-insurance, no-driver license cases. Taking that factor into account, the cost-benefit analysis becomes a no-brainer.

But whether or not collections increase or decline, in the bigger picture there are many, many other good reasons to aggressively expand an amnesty program beyond the minimalist suggestions released today. It just creates too many problems, as Texas prosecutors have been saying for years. On this question, I happen to agree with Williamson County District Attorney John Bradley, who once wrote that:
Regardless how we measure the program, it is a disaster. It is a taxation masquerading as a public safety initiative. It probably has more negatives (jail, prosecution, uninsured drivers, etc.) than positives (money in the state's coffers). Unfortunately, the costs are hidden in county and city budgets.
Looking atomistically at bottom line revenues for the Driver Responsibility program ignores these broader social costs and the best interests of the public overall. Thankfully, the Commissioners in their discussion seemed to understand that this minimalist approach wouldn't do enough, and openly discussed the possibility of strengthening the rules, depending on the recommendations received in the public hearing.

More on this after I see the actual proposed rules. I'll let folks know when they're posted and the
public hearing set, and encourage anyone interested to submit comments or attend the hearing

See related Grits posts:

Examiner: Findings from Sharon Keller misconduct case left too much unsaid

The case against Texas Court of Criminal Appeals Presiding Judge Sharon Keller has never been more strongly laid out than in the 14-pages of objections to Judge David Berchelmann's Findings of Fact, which purported to exculpate the state's top criminal court jurist.

I'm not going to repeat points commonly made in MSM coverage, so to get the basics, see:
But anyone really interested in the story should read the latest primary documents themselves. the objections (pdf) to the Special Master's findings (pdf) and Judge Keller's response (pdf).

Before getting to the meat, it's interesting to me how everyone (including most reporters, as well as this writer) has struggled to accurately portray this rarified and seldom-viewed judicial disciplinary process. Hardly anyone is familiar with it, so coverage of these events has tended to analogize it with a criminal trial. So, in translation, "examiners" become "prosecutors," "findings of fact" become a "ruling." But this is an administrative procedure governed by its own rules (pdf). I'll admit, I've found myself struggling to wrap my own head around the intricacies and nuance of the process.

In any event, these new "objections" identify what was to me the most frustrating aspect of Judge Berchelmann's work: He didn't actually issue findings on most of the questions asked of him, instead opining at length on other topics. Nobody asked him whether the Texas Defender Service or Judge Keller was more at fault, but that was the main focus of his writing. What's more, "The Special Master exceeded his role by making recommendations as to sanctions, if any." Said examiners:
The issue here is not TDS's conduct, but Judge Keller's conduct. The Special Master's conclusions concerning causation are irrelevant to the issue of whether Judge Keller by her conduct violated the constitutional, statutory and canon provisions cited by the examiner. The Commission should not be diverted by the Special Master's erroneous attempt to frame this case in terms of who ultimately caused the failure of the USSC to grant a stay.
Instead of focusing on TDS, said examiners, "Judge Keller's conduct on September 25, 2007 should be examined based on what she knew, heard, thought, said, did, decided, and failed to do - and not on things she didn't know."

Most importantly, Berchelmann failed to rule on whether Keller's actions constituted incompetence, and whether they were willful and persistent. Examiners suggested substitute language to the Commission urging them to find affirmatively in the case of both. This was such a gapingly bizarre omission in the findings, one wonders if Judge Berchelmann, like the reporters covering the process, didn't fully understand or appreciate his role.

Examiners bypassed the whole question of whether this was an administrative or judicial decisions, noting that the administrative employees involved were under Keller's direct control and acted based on her orders. So she can't point the finger at underlings like Ed Marty when they reported to her and did what she said, and whether the decision was an administrative or judicial one rightfully becomes irrelevant, by this logic. Judge Keller retained her duties as a member of the court no matter which hat she's wearing. Notably, Judge Berchelmann "failed to make any finding, despite the Examiner's request, as to whether Mr. Acosta and Mr. Marty were 'subject to [Judge Keller's] supervision and control.'"

I also thought the examiner devastated Judge Berchelmann's strange and inexplicable distinction between the court's "oral tradition" and "unwritten rules," though Keller's response clung to that bizarre trope. They proposed replacement language "in light of Judge Keller's testimony that the unwritten protocol on September 25, 2007 was known by her and was verbatim the same as what was reduced to writing in November 2007," when the unwritten rule was formally codified.

The most remarkable thing about Judge Keller's response to the Special Master was its agreement with the examiner that most of Judge Berchelmann's findings were irrelevant to the case at hand. In other words, the only thing the two sides seem to agree on is that Judge Berchelmann did a poor job.

In any event, don't take my word for it. Read the documents themselves and make up your own mind. Given the acknowledged gaps in the record, the State Commission on Judicial Conduct has a tough job ahead of them to come up with findings on all the issues where the Special Master punted. I'm less confident than before, however, that they'll give Judge Keller a free pass. The examiners are sticking to their guns.

Next up: Judge Keller will file a response to the examiners, and I'm hopeful the commission also receives amici briefs from concerned parties. Then, probably several months from now, the SCJC will hold a public hearing before recommending whether or not to sanction Texas' most polarizing, controversial judge.

Wednesday, February 17, 2010

Examiner's objections due today in Sharon Keller removal proceedings

Today is the deadline for any objections by the examiner to findings of fact by the Special Master in Judge Sharon Keller's case before the Texas Commission on Judicial Conduct. I'll post a link when it becomes available.

UPDATE: Here are the formal objections (pdf) to the Special Master's findings, which were released at the end of the day. More tomorrow morning after I've had a chance to review the document. See also Judge Keller's response (pdf) to the Special Master.

ADDITIONAL THOUGHT: Judge Berchelmann's findings purporting to exculpate Sharon Keller were heavily covered by the media. Do you think the examiner's suggestion today that Judge Keller exhibited a "total failure in acceptance of any accountability" will receive equally wide play?

The examiners noted that Berchelmann failed to reach conclusions on the main issues he was asked to explore and instead focused on "what actions 'caused the death of Michael Richards,' which is irrelevant in this proceeding." Instead, they said, the case is really about "whether a judge should allow herself to disregard at will a long-standing established protocol of her court that is designed to safeguard proper handling of all time-sensitive communications on an execution day."

Whether the MSM notices or not, this is not over for Judge Keller, by a longshot.

MORE: From the Austin Statesman's Chuck Lindell. Good job, Chuck.