Thursday, April 07, 2011

Odds and Ends: On the harmlessness of being convicted of a non-existent crime

Here are a few odds and ends that deserve Grits readers' attention:

Praising Pat Lykos
Newsweek has an article this week praising Pat Lykos' transformation of the Harris County District Attorney's office that would make Murray Newman pull his hair out if he had any. (Just kidding, Murray, and my sincere condolences on your friend's recent tragedy.)

Everybody wants a piece of asset forfeiture money
The Department of Public Safety has $140 million in seized drug money that the Legislature would like to tap to help solve its budget woes, but Mario Carillo at Reporting Texas has a podcast declaring that Congressman Mike McCaul wants the feds to require that money be spent on border security.

DNA testing access expanded
The Senate this week passed a bill by state Sen. Rodney Ellis expanding access to postconviction DNA testing, eliminating procedural hurdles that have in the past delayed proving innocence in several cases. Said Sen. Ellis in a press release, "SB 122 will ensure that if there is DNA evidence available to prove someone's innocence, it can and will be tested. ... No longer will the door to justice be shut just because of a procedural error."

Budget crunch has Dallas deputies eating what they kill
In Dallas, the county commissioners court has created a "strike team" to go after ticket scofflaws with a twist: If they don't collect enough money, the officers will lose their jobs, which are only funded as long as they pay for themselves, reports Kevin Krause at the Dallas News. I've heard of nonprofit fundraisers who're required to raise their own salary - who "eat what they kill," in the lingo - but applying that scheme to cops seems like a bad idea. As for the scofflaws, adds Krause, those who don't pay will be taken to jail, despite the fact that the county has only recently "gotten the jail population under control after years of crowding. Officials don't want to throw misdemeanor offenders in the jail, but [Commissioner John Wiley] Price said they will manage it." The county budget office even proposed forcing judges to increase fine amounts, but Krause reported that "Judges say they're sympathetic to the county's budget woes but that it's not their duty to save the county money. They say dispensing justice is their role and that you can't get blood from a turnip." UPDATE: A commenter rightly declares this policy may violate Sec. 720.002 of the state Transportation Code. Under that statute, "A violation of this section by an elected official is misconduct and a ground for removal from office."

Another counterproductive graffiti enhancement
After two decades of passing bills "enhancing" penalties for graffiti crimes, you'd think if higher criminal penalties were going to solve the problem it'd have done so by now. But the Texas House passed yet another graffiti "enhancement" bill this week, making it a state jail felony to apply graffiti to historic structures. (Thanks to past enhancements, it is already a state jail felony to do graffiti at schools, churches and community centers.) But like schools, churches and community centers, graff on historic structures is more likely to be a one-off, while the repeat offenders typically look for more out of the way targets that are more difficult to buff. Meanwhile, despite tens of thousands of graffiti crimes each year, fewer than 300 people annually are actually arrested and convicted for the offense. So boosting penalties for the handful of people actually caught is among the least effective tactics because it only ever applies to a handful of taggers. Because of this limited impact, the most effective graffiti policies focus more on non-criminal justice solutions, but the Legislature has pretty much been a one-trick pony on this subject.

Error in convicting Enron chief of non-existent crime deemed "harmless"
Tom Kirkendall and Ellen Podgor have excellent discussions of the implications of the latest Fifth Circuit  decision finding "harmless error" in the Jeffrey Skilling/Enron case regarding so-called "honest services fraud," with Tom decrying "the "utter vacuity" of the latest ruling. The Supreme Court declared the honest-service fraud statute invalid, but the Fifth Circuit said the prosecutors' error in relying on it was "harmless" because jurors could have convicted on other counts. Tom calls that "Poppycock," citing "the absurd amount of time that the prosecution spent during trial on Skilling's alleged honest services violations in regard to Photofete." Doug Berman says the decision makes Skilling's recent win at the Supreme Court "pyrrhic," but there's still a long way to go before this saga is complete: Next up: Re-sentencing at the District Court.

Geo Group corporate debt downgraded
For several years this blog has been following the growing debt burden of the Geo Group (formerly Wackenhut), which is one of the largest private prison operators. In their SEC filings for the last several years, GEO warned that its debt burden could "require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness." So I was interested to learn via NPR that in January the company's "credit rating was downgraded to B+." Quite candidly, though, the dynamics that caused the debt downgrade have been evident for some time; lowering the company's credit rating was long overdue.


Anonymous said...

Ref Budget crunch has Dallas deputies eating what they kill......

I believe this is borderline a violation of Section 720.002 Texas Transportation Code as it relates to deputies. It is a clear violation as it relates to judges and courts.

A violation of this section by an elected official is misconduct and a ground for removal from office.

Under 542.402, A municipality or county shall use a fine collected for a violation of a highway law in this title to:(1) construct and maintain roads, bridges, and culverts in the municipality or county;(2) enforce laws regulating the use of highways by motor vehicles; and(3) defray the expense of county traffic officers.

"County traffic officer" under 701.001 are different and the salary paid to the officer is independent of a salary paid to the sheriff and sheriff's deputies who do not act as highway officers.

Retired LE

Anonymous said...


Let me say that 720.002 has to do with quotas. Left that out.

Retired LE

Anonymous said...

"Budget crunch has Dallas deputies eating what they kill"

Hmm, self fulfilling prophecy? Wonder what double 0 percentage the traffic ticket racket will jump to with this little doozy?

Anonymous said...

Re: Budget Crunch has Dallas Deputies . . .

The linked DMN article says that "Still, the county budget office recently offered up this idea for generating more revenue: 'Modify judicial criminal fine assessment behavior.' Doing so, it said, would result in an additional $1.5 million in revenue from the misdemeanor courts."

From there, you jump to this: "UPDATE: A commenter rightly declares this policy may violate Sec. 720.002 of the state Transportation Code."

What "policy" are you referring to? Even at it's worst reading, the suggestion of the budget office that county criminal court judges as a group should increase the amounts of the fines imposed on persons convicted of Class A and Class B mismeanors (and the Penal Code gives them lots of discretion as to the amount of a fine) seems to be a far cry from what Transportation Code Section 720.002(b) proscribes, which is this:
(b) A political subdivision . . . may not require or suggest to a . . . judge of a county court, statutory county court . . . :
* * *
(2) that the . . . judge is required or expected to collect a predetermined amount of money from persons convicted of a traffic offense within a specified period."

An unrelated issue:

I am not familiar with the courts of Dallas County, but TC 720.002 refers to "traffic offenses," which are defined as offenses under Chapter 521, Transportation Code (the driver's license law) and under Subtitle C, Title 7, Transportation Code. The vast majority of those "traffic offenses" are Class C misdemeanors, which in most counties are tried in the municipal courts and the justice courts of the county.

Unless Dallas County is decidedly different from other counties, it seems to me that the author of the DMN article focused entirely too much attention on one of the judges who handle Class A and Class B misdemeanors and not enough on the justice of the peace in Dallas County.

Gritsforbreakfast said...

3:33, I was referring not to the budget office's request of judges but to the Sheriff and constables' new policy of assigning officers to this with the explicit goal of recouping their salaries.

Anonymous said...

Sorry Grits for my confusion, but both links imbeded in your posting led me to the same DMN article: "Dallas County judge and former nun not strict in handing out fines."

Gritsforbreakfast said...

Gotcha, 4:29, I fixed the other link. Here it is, fyi.

Anonymous said...

A "strike team" of 25 sheriff's deputies and deputy constables need to collect enough money from deadbeats to pay their salaries and save their jobs. Once the money dries up, their jobs will be eliminated.

IMO the paying of salaries for traffic ticket related cases could be a violation of 542.002 unless the person being paid is defined as a ‘”county traffic officer” under 701.001.

Commissioner John Wiley Price said Tuesday that of the roughly $110 million owed to the county, about $60 million of it is collectible. If so, that will be enough to keep those warrant deputies employed for some time.

A good question for Price to answer; of the amounts listed, what percentage would go to the state comptroller’s office for the various state fees that must be collected.

See at

Audrey said...
This comment has been removed by the author.
kay sieverding said...

I think that a jury is more likely to convict on a second count if they have already decided that one count is valid.

I was also held for a nonexistent crime -- 5005 civil contempt. I was not arraigned and there was no trial and no bail hearing. I was held by the feds for 5 months and extorted.

28 "USC section 401 recognizes two types of contempt: direct and indirect. Direct contempt is contumacious conduct committed in the actual presence of the court, . . . and may be punished summarily.” 741 F.2d at 135 (internal citation omitted). See also United States v. Wilson, 421 U.S. 309, 316 (1975). All other contempt must be treated as indirect contempt. Bearing in mind the principle that only “the least possible power adequate to the end proposed should be used in
contempt cases,” Anderson v. Dunn, 6 Wheat. 204, 231 (1821), the Supreme Court said in Wilson that “[w]here time is not of the essence, . . . the provisions of [FED. R. CRIM. P.] 42(b) may be more appropriate to deal with contumacious conduct. 421 U.S. at 319. Other factors distinguishing direct from indirect contempt include whether the act was committed in the presence of the judge and whether extrinsic evidence will be needed to prove the contempt.”

“It is worth underscoring, in this regard, that criminal contempt is a crime, like all other crimes. See Bloom v. Illinois, 391 U.S. 194, 201 (1968). It is for that reason that the Supreme Court has held that a person accused of criminal contempt enjoys the normal range of procedural rights. See Int’l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 826-27 (1994) (referring to In re Bradley, 318 U.S. 50
(1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self-incrimination and right to proof beyond a reasonable doubt);”...

“We read § 401 to permit either a fine, or imprisonment, or both, as a penalty for criminal contempt, but not to permit any other penalty.”

re Troutt, 460 F.3d 887 (7th Cir. 08/21/2006)

Anonymous said...

I have watched several court cases that turned in to drama's on CBS News 48 Hours Mystery and I was amazed at the acting and drama involved in these cases. I was shocked that a sitting judge would even allow that kind if circus in their court rooms. Those clowns I mean prosecutors got away with misconduct if you ask me. No wonder someone does not get a fair trail. But what really amazed me was after the trail when the jury was interviewed a lot of them and I mean a lot of them said they would not have voted guilty if they would have known this particular evidence. So much evidence was being surpressed during these trails that the jury if known would have voted not guilty. Now how is this a fair trial? Prosecutors not only by law but ethics and morals should and need to be held accountable. I heard this same office had an office pool to see who could put away the most people. I am not sure if this is true but I have to believe it just from what I watched on television. Everyone of those cases when the show ended I walked away not convience of guilt. There was reasonable doubt and I was thaught in school that means not guilty. I pray for anyone caught in our current legal system and pray I never get caught up in it either but I know I will never even drive into or through Harris County, Texas.

Audrey said...

It's so difficult to see how convicting someone based on a non-existent crime could be considered harmless. The impact prosecutors have on the jury is significant as I saw in my own case. Whoever provides the best drama WINS. It would seem the only way to avert trouble is to stay out of ALL counties in Texas, not just Harris County.

Anonymous said...

Grits: Your commenter on Trans. 720.002 is precisely WRONG. Trans. 720.002 is the "ticket quota" prohibition in Texas. However, these deputies are not issuing citations to pay for themselves. They are going after folks who were issued citations already, bringing in those who are in active warrant status as owing money. Those are two VERY DIFFERENT actions. In the first instance, having officers "pay for themselves" by issuing citations creates the perverse incentive of encouraging officers to issue as many citations as possible, whether or not there is a lawful reason. In the second instance, having officers "pay for themselves" by chasing down scofflaws does not have that same perverse incentive. They are only going after those to whom the system has already provided due process in the form of a warrant already duly authorized by a judge who is not paid per warrant issued, but hopefully just did his job and issued one if the individual legally deserved it. The second set of officers is actually under court order directed at any "Texas peace officer" to arrest those individuals anyway; having them pay for themselves by doing it just means you're encouraging them to follow as many court orders as possible.

Sad that Retired LEOs don't know the difference between citation issuance and warrant enforcement, but not surprising.