Wednesday, February 29, 2012

Plea deals without open files turn off ignition on adversarial system's truth-seeking engine

An exchange between judge and defendant during a guilty plea out of Williamson County in a remarkable, 33-year old murder case caught Grits' attention.

Benny Tijerina was sentenced to concurrent 40 year sentences in Williamson and McLennan counties for the crimes, though he claims and a victim's mother agrees that another man was the shooter (the prosecutor claimed to have jailhouse informants who say otherwise). Anyway, as cold cases solved by DNA go, this was at once both a remarkable and increasingly a routine event.

What caught Grits' eye was an exchange recorded at the end of the Austin Statesman story: "After he was sentenced, Tijerina asked [Judge] Carnes why he hadn't been allowed to see any of the evidence against him in the case. Carnes said that was standard and that Tijerina would only have seen the evidence if the case had gone to trial."

That's true as far as it goes under the US Supreme Court's Brady v. Maryland ruling, but it's also a "standard" that shifts in Texas county by county at the whim of the local elected prosecutor. In Tarrant County, for example, defense attorneys have access to prosecutor files - electronically, no less - even in cases that result in plea agreements. In El Paso, too, DA Jaime Esparza told a conference at the Task Force on Indigent Defense that his office allows defense counsel to get access to case files within 24 hours, noting that it facilitated more routine cases getting disposed of within three days or less, reduced jail costs, overcrowding and liability, relieved court dockets, and even freed up space in the jail that's now leased out to house federal inmates and make extra money.

We live under a justice system where 98% of cases result in plea bargains instead of trials. Under the Williamson County rule, in the overwhelming majority of cases nobody outside the prosecutor's office ever actually vets the evidence before a sentence is dispensed. If the adversarial system is a truth seeking engine, in 98% of felony cases the engine's ignition switch remains locked in the "off" position under that "standard."

According to the Texas Office of Court Administration's annual report (pdf), "Less than two percent of all criminal cases (excluding transfers and motions to revoke probation) went to trial in 2010" in district (felony) courts. Just 3,633 felony cases in FY 2010 went to either jury or bench trials, says OCA. So in the overwhelming majority of cases, under the Williamson County system, the defense never sees the evidence.

I have no knowledge of the case beyond this report from the Statesman and don't argue with the sentence(s), but that exchange between defendant and judge about what is "standard" in Williamson County - and too many other Texas courtrooms - should raise alarm. The same sort of prosecutorial gamesmanship takes place in more routine cases all the way down to the misdemeanor level. Make Grits philosopher-king and I'd prefer that, as in El Paso and Tarrant, both sides had full access to the police investigation as early in the process as possible. Clearly some DAs - like Williamson's John Bradley - just won't do that unless they're required, so in the interests of justice the Legislature should make them.

Will Cowtown cell-phone trackers be used based on probable cause, or to obtain it?

The Fort Worth PD insists it was a misstatement, but an internal memo on its new Kingfish cell-phone tracking system said the device could be used for "developing probable cause." Previously the department had said they would only use the device after obtaining a search warrant, which would require obtaining probable cause before using it. Reported a local TV station:
A city memo describing the system's use sounds to some like police will track people's cellphones without first getting a warrant.

"The police department will use the KingFish System, a portable cellphone tracking system, to assist in locating, identifying, developing probable cause and apprehending priority offenders," the memo said.

The "developing probable cause" phrasing caught the attention of the American Civil Liberties Union. Police need to obtain a search warrant first, the organization said.

"Having a neutral party like a judge review and sign a warrant is the safeguard for individual privacy rights that prevents the police from simply using whatever tools are at their disposal to peek at, observe, watch or invade the privacy of folks at will," said Lisa Graybill, ACLU legal director.

But Fort Worth police say the description was misleading. The department always intended to obtain a search warrant before tracking someone, police said.

The department also said that if an arrest came from tracking someone, the district attorney, defense attorneys and a judge would all review the case.
If it was just a misstatement and they really do plan to get warrants, fine. If police intend to use the devices BEFORE they have probable cause, that's a problem. At a minimum they need some written policies on the subject. This was a consent-agenda item which wasn't discussed at all when the City Council approved it, and it sounds like the department's plans for the device and safeguards against abuse aren't as well-developed as they should be.

Tuesday, February 28, 2012

Why are Texas cops writing fewer traffic tickets?

A story by Scott Goldstein at the Dallas Morning News ("Dallas police tickets fall by tens of thousands," Feb. 28, behind paywall) opened:
Dallas police issued almost 59,000 fewer tickets last fiscal year than in the previous year, continuing a dramatic decline that could equate to millions of dollars less in city revenue, according to public records.

Police officials in Dallas, as in other cities reporting similar declines, offer several possible explanations for the decline in citations, most of which are generated by traffic stops.

They also emphasize that the number of traffic stops has gone up by tens of thousands, even as the number of tickets has dropped.

“We’re more interested in traffic stops, not necessarily citations,” Dallas Police Assistant Chief Tom Lawrence said. “The issuing of citations to a driver has always been the discretion of the officer, and we continue to be that way. We’re not going to change that.”

Tickets issued dropped by 67,000 in fiscal 2007-08, an additional 43,000 the next year and 18,000 in 2009-10. The total in fiscal 2006-07 was about 479,500, compared with 292,683 last year.

Lawrence said more than half of last year’s decrease is attributable to a 30 percent cut to a grant that financed officer overtime to work traffic enforcement exclusively in specified areas.

Police officials said that the federal grant is funneled through the state and that they did not know why it was cut.

Officers have other possible reasons for the decline in tickets.

Some officers say they are reluctant to write as many because they aren’t getting overtime pay for court appearances and because the citations they do write have gotten increased scrutiny from supervisors after ticket-writing scandals in recent years.

In addition, traffic unit personnel have been assigned recently to crime-fighting initiatives rather than strict traffic enforcement duties.

The decline comes as the city has seen an unprecedented eight straight years of overall crime reduction. For most of that time, the size of the force was steadily rising, thanks to a hiring push.
What's remarkable is not just this year's drop but the overall 39% decline since '06-'07. Wondering if the same trend is occurring statewide, Grits pulled the total number of new, non-parking traffic cases filed in municipal courts in recent years from the Office of Court Administration's annual reports. I was surprised to find that FY 2011 numbers reported represented a remarkable drop of more than 600,000 traffic tickets per year, more than 10%, compared to FY 2008:
Total new non-parking traffic cases filed statewide in Texas municipal courts:
2006: 5,711,966
2007: 5,581,607
2008: 5,749,780
2009: 5,684,813
2010: 5,521,029
2011: 5,148,510
Some police departments - notably Austin's - view traffic stops as their primary anti-crime strategy, particularly in so-called "hotspots," so I was surprised to notice that trend. It has budget implications, certainly, but more importantly, what is causing it? Are police deployment patterns changing, and if so, how and why? Perhaps the price of gas and a depressed economy are just making people drive less, which could make the trend meaningless if the economy picks back up. Perhaps Dallas' remarkable drop explains a disproportionate share of the total. OTOH, perhaps other cities, like Big D, are scaling back traffic enforcement in tight budget times because of limited resources. Or maybe there's something bigger going on, just as we've witnessed a steady drop in index crime rates over the last two decades.

Why are Texas cops writing fewer traffic tickets? What do you think is going on?

Upcoming interim hearings on eyewitness ID, juvenile justice

A coupla upcoming interim Texas legislative hearings may interest Grits readers. Tomorrow morning, the House Criminal Jurisprudence Committee will consider sentencing issues related to the mentally ill and implementation of the new eyewitness ID bill. Then next Tuesday, the House Corrections Committee will hold a hearing on an array of juvenile justice topics including the creation of the new Juvenile Justice Department. Both hearings you can watch online.

Executing innocents still okay after SCOTUS cert denial; will Texas take them up on it?

Like Pontius Pilate washing his hands of the dispute, the US Supreme Court yesterday declined to consider the question of whether the US Constitution permits the execution of an innocent person if the government has not violated their due process rights. The issue could have been taken up in the Texas death-penalty case of Larry Swearingen, but SCOTUS denied cert (i.e., they refused to hear it). Reports Bloomberg News:
Questions about the constitutionality of executing an innocent person are a “brooding omnipresence” in federal law that have “been left unanswered for too long,” Judge Jacques Wiener wrote in a 2009 ruling on Swearingen at the New Orleans- based 5th U.S. Circuit Court of Appeals. Swearingen’s appeal “might be the very case” for the Supreme Court “to recognize actual innocence as a ground for federal habeas relief,” Wiener wrote.

Swearingen was sentenced to die for the murder of 19-year- old Melissa Trotter, a college student who disappeared on Dec. 8, 1998, and was missing for 25 days before her body was discovered in Sam Houston National Forest, north of Houston.

Swearingen, who knew Trotter and was seen with her on the day she disappeared, was considered a suspect early in the police investigation. He was arrested Dec. 11, 1998, on unrelated warrants and has been in jail ever since.

Swearingen’s lawyers say forensic specialists -- including the medical examiner who testified for the prosecution -- have looked at evidence that wasn’t considered at Swearingen’s trial and now agree that Trotter’s body was placed in the forest no earlier than Dec. 18, 1998, a week after Swearingen’s arrest.

More than that, Swearingen’s lawyers say medical examiners who looked at tissue samples say Trotter’s internal organs were in a condition suggesting that she was killed no more than several days before her body was found.

The Innocence Network, an umbrella group of more than 60 organizations that helps prisoners uncover favorable evidence, said in a friend-of-the-court brief that Swearingen has “an airtight alibi -- he was in jail when the victim was murdered.”

Imposing the death penalty on someone who isn’t guilty of a capital crime, Swearingen’s lawyers said, would violate the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s due process protections.

Texas authorities said strands of Trotter’s hair were found in Swearingen’s truck, and fibers matching Swearingen’s jacket, bedroom carpet and truck upholstery were found on Trotter’s clothing. Cleaning Swearingen’s trailer after Trotter’s body was discovered, the suspect’s landlord found part of a torn pair of pantyhose that, prosecutors said, matched hosiery used to strangle the victim.

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.
For readers interested in more detail, Jordan Smith at the Austin Chronicle last year had an excellent, detailed article explicating the new forensic evidence in the case.

The question is, can habeas corpus reviews by appellate judges only examine procedural questions or if defendants can ask for relief simply based on actual innocence, as in, "I didn't do it." The issue is most poignant in capital cases like Swearingen's where the punishment is permanent, but the implications are even more far reaching.

While it almost seems offensive to say the Constitution permits the execution of an innocent person, as Bloomberg News put it, "as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution." It remains thus with this disappointing SCOTUS non-decision. (Of course, the Constitution's authors envisioned that a robust pardon power would prevent such injustices, but Goveror Rick Perry's pardon record provides only glimmers of hope that that might happen in Swearingen's case.)

In addition to the hot-button culture-war question of whether the Constitution permits executing the innocent, Swearingen's case also implicates Texas habeas law. The Court of Criminal Appeals belatedly ordered a hearing on the new scientific evidence, which coincidentally began in Houston yesterday. Reported the Houston Chronicle:
An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.
Depending on the outcome of that hearing, perhaps this case will give the CCA an opportunity to overturn their despicable misstep in Ex Parte Robbins.

What a remarkable case. SCOTUS chickened out on addressing perhaps the most high-stakes question in constitutional law, which leaves the matter in the hands of the Texas Court of Criminal Appeals, and thereafter quite literally at the mercy of the Board of Pardons and Paroles and Gov. Perry.

This is not the Todd Willingham case where new expert testimony was elicited at the last moment when courts and the Governor had little time to consider it. If Swearingen is executed despite hard scientific evidence of actual innocence, it will have happened following a slow, deliberate process whereby, from Washington to Austin, those responsible for ensuring the integrity of the system chose to look the other way.

Monday, February 27, 2012

Misdemeanors, the Fourth Amendment, courts of inquiry and true love

I've little extra time for much writing today but here are quite a few cool and interesting items Grits would opine about if there were more hours in the day, or fewer duties to occupy them:

The newest toy in the box, part two: DPS deploying military-style gunships in Rio Grande

The Texas Department of Public Safety will soon deploy its own mini-navy along the Rio Grande consisting of gunboats armed with automatic weapons, according to KHOU-TV, which reported that:
next month it's about to launch its own fleet of gunboats.

"It sends a message: Don't mess with Texas," said Jose Rodriguez, Texas DPS Regional Commander.

The state is spending almost $3.5 million in tax money for six 34-foot gunboats, each which can operate in as little as two feet of water. The vessels are outfitted with automatic weapons and bulletproof shielding.
The state's first boat is scheduled to be launched next month to operate alongside the Border Patrol.

"One agency cannot do this alone," Rodriguez said.

The gunboats will be looking for suspicious scenes, like another one the DPS helicopter captured in December showing 10 men riding down the river and sitting on bundles of drugs that were no doubt destined for the U.S.
Anytime someone in law enforcement says they're doing something to "send a message," much less in the same breath with the slogan "Don't Mess With Texas," that's a red flag for spending on worthless pork and PR-driven policing. The vast majority of contraband comes in through the checkpoints, not across the river. (According to a recent report by the Texas Border Coalition, "There is a mere 28 percent chance that a smuggler will get caught at the nation’s ports of entry, compared with a 90 percent of being detected between the ports of entry.") So why double down resources on the parts of the border - i.e., the stretches of river between the checkpoints - where smuggling has mostly been successfully restrained?

There's also real potential for creating unnecessary problems, starting the first time somebody fires off those automatic weapons toward the Mexican side of the river.

"Send a message" is code for "just for show." Patrolling the Rio Grande in crafts outfitted like Swift Boats headed up the river in Vietnam won't make anyone any safer or reduce the availability of drugs in the US, but the boat sure looks cool pictured there in the newspaper, doesn't it? And I suppose for the troopers it's more interesting duty than making traffic stops.

Sunday, February 26, 2012

The newest toys in the box: Police deploy cell-phone trackers, drones

A pair of stories show how technology is rapidly reshaping old debates about the Fourth Amendment and privacy, raising questions about whether sketchy protections outlined in the 18th Century still serve to prevent government abuses using technologies the Founding Fathers couldn't imagine.

First, the Fort Worth Star-Telegram has a story about "a new cellphone tracking system authorized for purchase by the Fort Worth City Council this week."
The KingFish system, which gives police the ability to track cellphones without having to go through a provider or service, will cost more than $184,000 during its first year of operation, according to a memo prepared for City Council prior to its vote.

The memo said that Fort Worth police officers have already utilized the technology and have received training from agents with the U.S. Secret Service and the U.S. Marshal's task force, agencies that have assisted the police in using the tracking system in the past. The KingFish units are mobile and can be mounted on a vehicle or carried by officers in the field.

Those concerned about the technology's capabilities worry that police will use the system to monitor the movements of suspects or subjects of its investigations without first obtaining warrants or a judge's permission.

Read more here:
Fortunately Texas state law is actually better developed than federal law on this question, and the Fort Worth police would absolutely be required to get a warrant court order in most circumstances. (A recent SCOTUS case ruled that using a GPS tracker on a vehicle is a "search," but declined to decide whether it required a warrant in federal cases.) Of course, it doesn't take very much to get a search warrant court order, and if the information is never used in court, nobody would know if they failed to get one, so in practice even that is a relatively weak limitation.

Another problem with spending that much on a piece of technology is that then the agency will feel compelled to find reasons to use it, if only to reduce the cost-per-case figure when trying to justify the expense in the budget..

Then, at CNBC there's an item about the increasing use of drones by civilian police agencies, news media and an array of other possible users. The story opens:
Heads up: Drones are going mainstream. Civilian cousins of the unmanned military aircraft that have tracked and killed terrorists in the Middle East and Asia are in demand by police departments, border patrols, power companies, news organizations and others wanting a bird's-eye view that's too impractical or dangerous for conventional planes or helicopters to get.

Along with the enthusiasm, there are qualms.

Drones overhead could invade people's privacy. The government worries they could collide with passenger planes or come crashing down to the ground, concerns that have slowed more widespread adoption of the technology.

Despite that, pressure is building to give drones the same access as manned aircraft to the sky at home.
"It's going to be the next big revolution in aviation. It's coming," says Dan Elwell, the Aerospace Industries Association's vice president for civil aviation.
Unlike mobile tracking devices, Texas law - either our statutes or case law - are no more prepared for the challenges posed by police use of drone technology than at the federal level. There's basically a vacuum that, for now, lets police and other users do nearly whatever they want.

Every kid wants to play with the newest toy in the box, and police are no different, so these technologies are going to be used. The question is can they be adequately regulated, or will their novelty confound the courts and prevent lawmakers from adequately constraining them?
Read more here:

Saturday, February 25, 2012

'Review' of death penalty doesn't diminish public demand for blood sacrifice

Dallas County District Attorney Craig Watkins this week revealed that his great grandfather was executed by the state of Texas. According to AP, his reference was to:
the execution of his great-grandfather, Richard Johnson. According to state criminal records and news accounts, Johnson escaped from prison three times while serving a 35-year sentence for burglary, and he was charged with killing a man after his third escape. He was convicted of murder in October 1931 and executed in the electric chair in August 1932.

Watkins said he did not get a full explanation of what happened until he became district attorney. His grandmother, who was a young girl when her father was executed, still struggles with the story, according to Watkins and his mother, Paula.
Whether because of this reveation or coincidental to it, Watkins announced he's reconsidering his position on capital punishment, somewhat opaquely calling for a review of the death penalty in Texas. Grits must admit, I never know what that means whenever it's said. How much more "review" can there be? It's virtually the only criminal justice-issue besides police shootings that the MSM consistently covers.

I don't care how much you "review" the death penalty, the Texas public overwhelmingly supports it, even if it turns out the state has executed an innocent person. My boss Jeff Blackburn has called the death penalty Texas' "state religion," and in many ways I think that captures it: For the public, it's important for the same reasons the Aztecs valued ritual blood sacrifice. Blood sacrifice among the Aztecs didn't really make the seasons change or impact cosmology, just as our modern, more sanitized version does little to reduce murders or crime. (Ironically, though murder rates have gone down everywhere, they've declined less rapidly in states like Texas that use the death penalty most frequently.) But you could never convince Aztec priests nor politicians supporting the death-penalty of that intellectual disconnect because it's important to the public at an almost psychic and/or symbolic level: "The world is a terrible place so we must do a terrible thing to make it right."

To me, whether the death penalty is right or wrong is not a rational question with a "correct" yes or no answer. One's opinion on it usually tells you more about the person than it does the issue - it's in many ways a moral, ethical and political Rorschach test - and the best answer, as is frustratingly often the case, is "it depends" ... as always, pending review.

'Science should be crime labs' client, not prosecutors'

Rick Casey says science should be crime labs' client, not prosecutors:

Friday, February 24, 2012

Louis Sturns to oversee Michael Morton 'court of inquiry' over alleged prosecutor misconduct

Gerry Goldstein, Michael Morton, John Raley and Barry Scheck, via AP
Last week, Texas Supreme Court Justice Wallace Jefferson named the judge in the Micheal Morton "court of inquiry" - fellow black Republican state District Judge Louis Sturns of Tarrant County. (Bob Ray Sanders at the Startlegram provides background, for those who need it.) A defense attorney who's practiced a great deal under Sturns told me he's the "nicest guy you'd ever want to meet," though that doesn't mean he won't also hand down extremely long sentences. Most folks seem to think he will be fair, which is all one can ask. See AP's acccount, and Brandi Grissom's coverage. If you're really interested and have the stomach for it, here's the 140+ page report (pdf) that convinced Chief Justice Jefferson to appoint a judge to oversee these unusual proceedings. Fittingly, his decision comes days after the silver (25th) anniversary of Morton's false conviction, a coincidence whose force is heightened by the protagonist's silver hair and beatific camera visage. In most pictures I see of Michael Morton he has a big grin on his face, like the cat who just ate the canary. In the one above he shows no teeth, but his eyes are smiling.

Courts of inquiry are strange birds - a seldom used, Texas specific vehicle for making an end-run around the DA's office to seek an indictment for alleged criminal wrongdoing without ever having the case heard by a grand jury. Lately, attorneys like my boss Jeff Blackburn from the Innocence Project of Texas (Timothy Cole) and Barry Scheck of the national Innocence Project (Todd Willingham) have sought (with 50-50 success) to use the procedure as a truth-seeking vehicle in posthumous innocence cases. Now Raley, Scheck and Co, hope to  use it to punish prosecutorial misonduct. These are mostly uncharted legal waters  for all involved, both for the attorneys and Judge Sturns.

What a dramatic hearing that will be! Grits may have to drive up to Cowtown for that one.

Read more here:

Wednesday, February 22, 2012

Dallas jail will take fees for inmate health services out of commissary accounts

Dallas County will soon begin charging inmates fees for healthcare services reports the Dallas Morning News ("Dallas County begin charging jail inmates for medical care," Feb. 22, behind paywall). The story opens:
Dallas County Sheriff Lupe Valdez said Tuesday that she will soon begin charging certain jail inmates for their basic medical expenses, a practice common in some other states and a few Texas counties.

Valdez said Tuesday that within six months she will implement the plan to charge inmates a medical co-payment by tapping money in their commissary accounts, which they use to buy such items as toiletries and snacks. Inmates and their families put money in the accounts.

Those without commissary money will not be charged for medical services, officials said, and emergency and chronic care will still be covered by taxpayers.

“The families are putting money there and inmates can use it for gummy bears or to take care of their health,” said County Commissioner John Wiley Price.

Dallas County spent $32.3 million last year on jail medical services, which are provided by Parkland Memorial Hospital, said budget director Ryan Brown. Roughly 65 to 70 percent of the total inmate population receives some medical care, he said.

The Sheriff’s Department is working with Parkland to establish fees to charge for certain medical services, Price said.

The county has explored the co-payment idea, which is used in Travis, Harris and Collin counties, since 2004. But it has only become possible with a new three-year, $18 million commissary contract that the county commissioners awarded Tuesday to Keefe Commissary Network, Price said.
One statement in the story by Kevin Krause merits correction, where he mistakenly reported that a bill to have state prisoners pay for healthcare died in the Legislature:
A bill that would have increased inmate medical fees in state prisons passed the House in June but died after failing to receive support in the Senate . The bill, authored by state Rep. Jerry Madden, R-Plano, would have charged prisoners $100 per year for medical care unless they were poor.

Currently, state prisoners pay $3 per doctor’s visit.
In fact, though that bill died, the measure passed attached to another bill and has been implemented. See TDCJ's explanation of the new fee (pdf). That said, TDCJ's fee is a little different from how it's done in jails. Reports Krause:
The idea is not to generate revenue for the county but to cut recurring costs of transporting inmates to receive care, Price said.

“We won’t get what is called frivolous calls. So it saves us on staff,” he said. “We’ve got to try to contain costs where we can. Most of the time it’s about staff.”

Collin County charges $10 for a sick call visit, $3 for each medication prescription, and $15 for a doctor visit as well as a dental visit, officials there said. Mental health services are free as are chronic care services for such things as blood pressure conditions and diabetes.
Bexar, Fayette and Stephens counties also charge jail inmates for medical services, said Adan Munoz, executive director of the Texas Commission on Jail Standards.
Grits must admit, reducing malingering and unnecessary clinic visits was by most accounts a big effect of TDCJ's new fee, which is $100 per year, due on the first clinic visit from your commissary account or as your friends and relatives add money in the future (that's a ham-handed summary, see here for details). Though Grits generally disapproves of casting off incarceration costs on prisoner families, at the same time I must admit at being pleasantly surprised that the economic incentive reportedly worked to reduce malingering in an already overburdened system. (Prison Doc, Nurseypooh and other prison health workers/commenters, please correct me if I'm wrong about that in the comments.)

Down the line at TDCJ, it remains to be seen if those who do pay go back more frequently because they've "already paid" the fee (which is still far below the cost of actually providing healthcare). But in the short term, from what I've heard anecdotally, its success in reducing frivolous clinic visits was fairly dramatic when the fee was first initiated. The fee structure described for health services in jails creates somewhat different incentives than the higher TDCJ fee, but then jail inmates are also incarcerated there a lot shorter periods, at least in most cases.

Stepping back to look at the broader picture, there are a lot of important but seldom discussed policy issues surrounding commissaries, which let prisoners purchase goods with money put in an account for their use by family members or friends. So when government mulcts money from the commissary, they're not taking it from offenders (or in the case of pretrial defendants in jail, alleged offenders), but from their families and friends. Lately the state and some counties have been taking money out for healthcare costs. But they've also been in the news related to corruption scandals where private vendors allegedly bribed Sheriffs and or others, took them on lavish trips, etc., in order to get the lucrative contracts.

The Department of Justice says prison gangs use commissary accounts to "support gang members in prison by funneling [drug] money into prison commissary accounts of gang leaders."

Then there are the health issues, since everyone is worried about inmate healthcare costs. The examples of commissary foods given in the article are "gummy bears" and "Twinkies." You've literally got a captive market, why not offer healthier alternatives? (That goes for regular prison and jail meals, too.)

Then there's the big issue that separates TDCJ's fee on families to doing the same thing at the jail: Prisoners in TDCJ have all been convicted, while at the jail most are pretrial defendants who may or may not end up being convicted. Should the inmate or their family get the money back if charges are dismissed? How do you navigate that, or do you just ignore it?

In any event, I doubt we've seen the last of this trend. What do folks think about it?

Tuesday, February 21, 2012

Man jailed 83 days extra after McLennan DA fails to notify of dropped charges

Rookie McLennan County DA Abel Reyna is a man who, during his brief tenure as District Attorney in Waco, has shown himself unafraid to pick fights. First he wanted to buck the Legislature over complying with the state's updated DNA testing statute, delaying testing of potentially exonerating (or incriminating) evidence in the 30-year old Lake Waco murders case. Then he announced what amounts to his own, personal mandatory minimum on DWI deals, including big increases from prior practice in fine and fee amounts. But the longer the young DA remains in office, he'll discover that there isn't as much time to go out picking fights in a job where more than your fair of them come your way of their own accord. Most recently, reported the Waco Tribune Herald ("Waco man wrongly jailed for 83 days may sue county," Feb. 1, behind paywall).
A Waco man is deciding if he will sue the county because he was wrongfully detained for 83 days after the district attorney’s office declined his case for prosecution but failed to notify the McLennan County Jail.

Damion Wayne Evans, 33, stayed in the county jail with no other charges pending against him for almost three months after the district attorney’s office declined to prosecute him on a tampering with physical evidence charge.

District Attorney Abel Reyna said Evans’ improperly extended incarceration was the fault of his office. His staff did not fax a case disposition report to the sheriff’s office so it would know to release Evans.

Damion Evans was jailed for 83 days after the McLennan County district attorney’s office decided they would not prosecute his case.

“I will accept responsibility for the error in my office, and my apologies go to Mr. Evans,” Reyna said. “Though it doesn’t change what happened to him, the only thing I can do is work hard to make sure it doesn’t happen again.”

According to court records, Evans was arrested Oct. 12, 2011, after Waco police pulled him over and saw him chewing on something. The officers assumed he was eating drugs or items containing drugs, according to records filed in the case. But they did not take him to a hospital to empty the contents of his stomach.

A case disposition report dated Jan. 17 said prosecutors did not accept the case because without the object the suspect allegedly swallowed, they were “unable to prove what it was or that it was illegal.”

The decision to refuse the case was made Oct. 25, two weeks after Evans’ arrest. Once that decision was made, the disposition report should have been sent to the jail and Evans should have been released, Reyna said.

But the error was not discovered until Jan. 17, after Evans’ attorney, David Bass, filed a motion asking Judge Ralph Strother to set a bail Evans could afford because he had been in jail more than 90 days and had not been indicted.

Strother granted the motion, and it was not until after the hearing that officials discovered that Evans’ case had been refused Oct. 25.
What does "accept responsibility" mean in a world where prosecutors  have "absolute immunity" for harm caused by their errors? Do you think Mr.Reyna will be forced to "accept responsibility" in the same way you or I would? The DA refuses the case but fails to notify the defendant, his counsel, the jail, or anybody who might be in a position to get him released. 

The wag who notified me of this via email added that this is "another way to keep the McLennan County Jail full." That's a joke, but regular readers know maximizing the number of jail inmates is no small motivation for McLennan County officials at the moment.

Wrongful Convictions Blog

Say "Howdy" to the brand spanking new Wrongful Convictions Blog, run by Mark Godsey who directs the Ohio Innocence Project. Mark's rounded up a terrific stable of writers if he can keep them all producing regularly; they're off to a great start.

Few defendants getting surcharges waived by judges based on indigence

Thousands of  Texas drivers have successfully applied for waivers of most of their Driver Responsibility surcharges under new rules implemented by the Public Safety Commission last year. But only a handful of defense attorneys have asked judges to declare their clients eligible to have their surcharges waived entirely after a little-publicized law took effect September 1 empowering judges to order surcharges in new cases waived for indigent defendants.

According to Tom Vinger with DPS' media relations, the agency began receiving court orders from judges waiving surcharges based on indigency (under an amendment authored by state Rep. Sylvester Turner) in October 2011, and despite their earlier representation, DPS now says they "process the court order once the conviction is placed on the record. There have only been 29 orders received and 13 processed." That's discouraging. I'm certain there have been many more DWIs pled out than that with clients who qualified for indigence waivers. I'm not an attorney and certainly no expert on what constitutes a successful bar grievance, but IMO it borders on ineffective assistance for a defense attorney not to apply for an indigency waiver on DWIs or other surcharge-eligible offenses when their client qualifies - even though surcharges are technically a separate, civil matter, it's a direct collateral consequence of the conviction.

In any event, where the real action has been is under the Indigence rules created  (to their credit) by the Public Safety Commission. As of January 9, DPS had received 19,668 applications for reduction of surcharges under DPS indigence rules, and had approved 18,249 of them, or 92%. In addition, more than 100,000 drivers - about one in seven of those eligible - applied for and received amnesty last spring, so the new rules pushed by Grits and the good folks at the Texas Fair Defense Project so far have helped more than 120,000 people regain their drivers licenses.

Why aren't appointed defense attorneys asking judges for a waiver of surcharges for their indigent clients when they're eligible? I have no idea but it surprises me so few have done so. The statute has been on the books since 2009, though it only took effect Sept. 1, 2011, so the defense bar should have had time to educate themselves and prepare to use it. By contrast, I'm glad to see significant numbers of people are successfully applying for surcharge reductions (to $250 or less) under the (relatively) new DPS rules.

Grits also asked DPS for more information on when the "Incentive" rules - mandated by the Lege to be implemented sometime this biennium - might take effect. (They're already on the books, the Public Safety Commission just needs to pull the trigger and make them take effect.) More on that when I hear back.

Monday, February 20, 2012

McLennan DA implements 'one size fits all' DWI deals, but a deal takes two

In Waco, McLennan County DA and John-Bradley wannabe Abel Reyna has implemented a new policy for first-time DWI defendants that "prohibits DA assistants from negotiating plea deals and sets probationers up for failure with higher fines and related fees," according to a story forwarded to me by a reader by Tommy Witherspoon at the Waco Tribune Herald ("DA's DWI policy under fire from area attorneys," Feb. 19, behind paywall).

Remarkably, "The policy is so unpopular that attorney Damon Reed, Reyna’s former law partner, asked a judge last week to order the district attorney’s office into mediation with Reed’s 23-year-old DWI client because of Reed’s perception that the district attorney’s office won’t negotiate or treat defendants fairly." A judge denied the motion, but attorney Damon Reed, who is Reyna's former law partner, criticized new DA's approach as a "one size fits all" policy. Reported the Trib:
Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.

“The point of it is so the district attorney can look like he is tough on crime and the judges will artificially appear that they are being soft on criminals if they take into consideration any of the circumstances of the individual in shaping justice for that individual.”

Reyna said he has set a standard offer of 15 months probation and $1,000 fines for those charged with their first DWI. Offers are higher if there are aggravating factors, such as an unusually high breath or blood-alcohol test, causing a wreck or being belligerent to the arresting officer.

The maximum penalty for a first-time DWI is two years in jail and a $2,000 fine.
Regular readers know, of course, those only include the criminal penalties. There is also a civil surcharge, which for DWI defendants can be quite high and have caused a decline in the DWI conviction rate statewide.

The issue is, at what point do penalties become so severe that defendants would prefer to just sit out their sentence in the county jail than agree to probation, which is what happened in Harris County when the previous DA, Chuck Rosenthal, tried to turn up the screws. And as attorneys in the story pointed out, a big part of the problem is expensive DWI "surcharges," as well as probation fees, costs for treatment, urinalysis, any required classes, etc.:
Reed and other attorneys say a typical DWI defendant placed on probation will incur fines, probation fees, state surcharges and possibly other charges that easily can total $500 or more a month.

“If I slap a poor man 20 times to get his attention, I guarantee you I had his attention after the first time,” Waco attorney Mike Roberts said. “If I give him a fine he can’t pay, it is not in the best interest of justice because he is not going to be able to pay it, you are setting him up to fail and the taxpayers will have to pay to keep him in jail and to pay for more jury trials. It is nothing more than political posturing.”
Will defendants in McLennan County pay through the nose, or will this result in clogged dockets, demands for trials, or even pleas to jail sentences? I suppose, looking at it through the prism of local politics, at least that last option would provide some extra bed days for these guys, which a cynic might imagine could even be the point.

Medical paroles plummeting while TDCJ-UTMB wrangle over healthcare costs

The Dallas News reports ("Fewer seriously ill Texas inmates being released on medical paroles," Feb. 20) that medical parole rates are at their lowest in years and that Texas' Board of Pardons and Paroles may approve fewer medical paroles in FY 2012 (they'll hit 33, at the current rate) than at any time in recent memory, despite TDCJ facing prison healthcare costs more than nine figures greater than the Legislature budgeted.:
Each of the past three fiscal years, the Texas Department of Criminal Justice said its medical providers — the University of Texas Medical Branch at Galveston and Texas Tech — referred more cases for medical release. There were 1,318 referrals in 2009 and 1,807 cases in 2011.

Another government office, the Texas Correctional Office on Offenders with Medical or Mental Impairments, narrows that pool and presents cases to the state Board of Pardons and Paroles.

In fiscal year 2011, 349 cases were formally presented for medical release, and 100 cases, or 29 percent, won approval. The previous year, 22 percent were approved. Almost always, the parole board makes the decision. In a few state jail cases, the sentencing judge decides.

Each year, some inmates approved for release die before they can be freed or their cases are reconsidered.
So far this fiscal year, from September through December, the board has approved only 16 of the 125 cases presented, or 13 percent.

The Legislative Budget Board, which monitors state spending, told lawmakers in January 2011 that expediting the release of inmates who need high-cost medical care could save the state an average of $10,545 per year per inmate. The board noted that inmates are not eligible for Medicare or Medicaid while in prison, so the state pays the full cost of care.
Strange and troublesome - from the perspective of reducing prison medical costs - that in 2011, doctors recommended more than 1,800 people for medical release, but only 349 were presented to the board, which approved less than a third of those. Most inmates/patients recommended by their doctors for medical parole are getting screened out by TDCJ parole staff (according to some criteria not described in the article) before the board ever hears about them.

The Board of Pardons and Paroles, of course, is functionally separate from TDCJ, but historically they have acted somewhat in tandem, particularly back when Rissie Owens' husband, Ed, ran TDCJ's institutional division. So it's a bit of a surprise that the parole board isn't doing more to help TDCJ out on the health-cost question, though of course they're under no obligation to do so.

Grits recognizes the board has discretion, but they should at least consider all the recommendations doctors send them. TDCJ is seriously over-budget on health care, with its major provider (UTMB) at this point outright rebelling, so paroling some of the sickest, most expensive inmates could help relieve pressure. I'd have expected to see them considering and approving more medical paroles in 2012 given the current funding situation. As it turns out, it's been substantially less.

Congratulations to Richard Miles, Dallas' latest non-DNA exoneree

Congratulations to Richard Miles, his attorneys, and supporters in Dallas after his exhilarating exoneration last week, as the Court of Criminal Appeals formally dismissed charges against him - a rare instance indeed given that there was no DNA evidence in his case, which is how most recent Texas exonerees have been sprung. Reported Leslie Minora at The Dallas Observer:
Congratulations to Richard Miles. Hurrah!
Free for two years, Richard Miles has nevertheless waited and waited for today -- the official acknowledgement that he did not commit the  murder and attempted murder at a Texaco near Bachman Lake in 1994 for which he was sent to prison. The detailed 52-page opinion handed down from the Texas Court of Criminal Appeals reads like the outline of a Hitchcock film, detailing two police reports that weren't disclosed at the time of Miles's conviction, a 2010 recantation from the only uninvolved eyewitness and the determination that the small amount of gunshot residue on Miles' hand was inconclusive. All of which amounted to the decision that the wrong man spent 14 years behind bars.

"When we balance the newly available evidence ... with other exculpatory evidence and the evidence of guilt presented at trial, we are satisfied that Applicant has shown by clear and convincing evidence that no rational jury would convict him in light of the new evidence," reads the court's opinion released today.

The Dallas County District Attorney's office recommended Miles's release in 2009 after they determined that flaws in his trial violated his constitutional rights. Since his release more than two years ago, he's been working, piecing his life back together and finding support in other exonerees as he waited for a decision from the state court, which must rule on all exoneration cases. But finally, as of today Miles can file for state compensation for his years spent locked up.

"This is going to be great for him because now he can do some of the things he wanted to do" like help his mother, said Charles Chatman, an exoneree who was released in 2008. Chatman and the other exonerees, including Miles, meet monthly, and Chatman tells Unfair Park that he and the other guys have given Miles a helping had since his release.

"We have helped him," Chatman says, quickly adding that Miles isn't "the kind of person who just depends on nobody." Miles has been getting by working at a hotel, Chatman said, but even finding a job was difficult without a declaration of "actual innocence."

The state court's decision comes a year after The Dallas Morning News checked in with him as he continued to await the ruling. Miles was released after Centurion Ministries, a non-profit that explores wrongful convictions, found previously withheld evidence that linked another man to the 1994 murder and compiled evidence in favor of Miles's innocence.

In a December feature, the Observer explored the complexity of exoneration cases where there is no DNA evidence to definitively prove guilt or innocence. Miles's case, a non-DNA exoneration, rested squarely on eyewitness testimony, and when the case was explored years later, it was discovered that two police reports were never turned over to the defense, as is required of the prosecution.
Wherever you are, take a moment to stand and applaud, or issue a triumphant "Hurrah!" on Mr. Miles' behalf. With no DNA evidence, and the recent Ex Parte Robbins ruling that raised the bar to near impossible heights to challenge tainted, inaccurate forensic testimony, it's unlikely Miles could have been exonerated if they couldn't prove prosecutors withheld exculpatory evidence, which once again was discovered after the fact via the Public Information Act. But the fact that all that other existed surely contributed to the convicting court recommending, with the assent of the Dallas DA's office, that Miles be granted habeas relief based on "actual innocence" as a result of the "Brady" violations.

This case provides another data point for Grits' hypothesis that, because of limitations imposed by the Court of Criminal Appeals in Robbins as well as an array of other court precedents and statutes over the years that chipped away at the efficacy of state habeas claims, today "prosecutorial misconduct - particularly withholding exculpatory evidence ... may be the quickest route to exoneration."

That was the path taken here. Miles' lawyers almost had to go that route because it's the main avenue the Sharon Keller Court and the Texas Legislature have left open, so byzantine and restrictive has modern Texas habeas law become. In truth, there were many grounds to call Miles' conviction into question that in an ideal world should have garnered him relief in addition to the Brady claims: As a reader put it via email, this was an "Amazing case that involved the Dallas Police not turning over exculpatory evidence, a show-up ID, and an expert who changed her opinion of the gun-shot residue evidence. A perfect storm of the various causes of wrongful convictions."

False convictions occur for a vast array of reasons, but under Texas habeas law, proving prosecutors violated Brady v. Maryland is one of the few areas besides DNA testing where Texas courts seem willing to provide relief.

Anyway, back to Richard Miles' exoneration. The same day the court's ruling was announced, an elated paralegal named Jena Parker, who formerly worked for the Dallas DA's office and now works for two former Craig Watkins-lieutenants now in private practice, sent out an mass email rejoicing and praising everyone involved. She worked on the case both at the DA's Office and in private practice, and certainly has forgotten more about it than I'll ever know, so let's close out this post by reprinting Jena's email here with her permission:
I am just emailing everyone that I have in my address book so if you get offended then hit your delete key.  Most of you know that I  have been very fortunate to work for Mike Ware for 18 years.  When Craig Watkins got elected D.A. in Dallas County he hired Terri Moore as his first assistant.  I could go on and on about what a remarkable job she did and that was brilliant that Mr. Watkins hired her.  Terri Moore came up with the idea of the Conviction Integrity Unit (CIU).  She knew that there were cases prior to Mr. Watkins taking office that had been turned down for DNA testing and she knew that there were already 10 exonerees.  So she came up with the idea of creating the CIU to look at cases where defendants were saying that they were innocent.   But she knew that in Dallas County, SWIFS had kept the evidence in these old cases.  So Terri asked Mike to head up the CIU.  I was very fortunate that I worked for Mike so he took me with him. 
To try to make this short.  I truly believe 100% if Craig Watkins wasn’t elected District Attorney then the other 17 exonerees (I think there are 28 exonerees now.  We had just finished working on Ricky Dale Wyatt when we left so it might be 29 exonerees total now.  I lose track  But I think after Craig Watkins was elected the CIU had a part in 17 or 18 of the 28 or 29 exonerees).
Back to my story.  In 2009, Jim McCloskey from Centurion Ministries came to talk to Terri about a defendant, Richard Miles.  Cheryl Wattley from Centurion Ministries and Jim had been investigating Richard’s claims of actual innocence.  Richard was convicted of a 1994 murder. Jim had done an TPIR request on the Dallas Police Dept and found 2 reports of 2 other suspects.  Jim had interviewed one of the possible suspects. Jim brought the case to Terri and Terri immediately had me try to get the D.A. file which I did and the CIU began its investigation.  This was a non DNA case.  Through our investigation we talked to the only witness that identified Richard as the shooter.  When we were interviewing him, he told us that when he got to court, he had told the prosecutor that he couldn’t identify the shooter.  The prosecutor told him to identify the guy at defense table. (The prosecutor was Tom D’Amore.)  After the CIU investigated this case along with Michelle Moore and John Stickels, they were also exonerated.) The witness signed an affidavit to that effect of what the prosecutor (Tom D’Amore) said about identifying Richard at trial.
The only other witness was the trace analyst from SWIFS. We sent her trial testimony and other evidence to her for her to re-review then Mike spoke to her.  She told Mike and also signed an affidavit that she would not have testified now to what she testified at Richard’s trial regarding the gun residue.  This was huge as it could open the door for other gun residue cases.  Based on this newly discovered evidence, Richard filed another writ which we agreed to his innocence.  This was over 2 years ago.  Today, the Court of Criminal Appeals wrote a published 26 page opinion which can be found here. The opinion stated all the investigation on his case including that there was a fingerprint on top of the victim’s car where the shooter would have put his hand.   Mike had our investigator, Jim Hammond (who is the greatest) to run it through AVIS and sure enough it came back to this guy.  Jim and Mike interviewed him and also he did a polygraph which he failed about the shooting.  I think it is a great opinion but what it does not do is name the prosecutor....
I have worked on cases that Michelle Moore (several) Gary Udashen, John Stickels, Jason Kreag from Innocence Project, Shirley Baccus-Lobel and other defense attorneys who had clients that the previous administration fought against from finding out the truth.  Patrick Waller’s case is another example of how I could go on and on about what Gary went through and then all the investigation CIU did to find the truth.  (And brother the CIU did an extensive investigation)  Steven Phillips another example of a WOW case.  Anyway, I could get on a roll about each case.  How in some of those cases the real perpetrator was in the previous administration’s file all along .  Just makes me ill thinking about all the injustice that went on.
Back to my story.  It has been over 2 years since Richard’s actual innocence writ was filed and today the court agreed that Richard is innocence.  Oh by the way.  On a different case that we worked on, Mike told the truth about a previous prosecutor not disclosing evidence and it was printed.  John Bradley, Williamson County District Attorney (and who all know about him fighting DNA testing in Michael Morton case for 2 years or longer.  And we all know that Michael Morton is innocent) called Mr. Watkins up and wanted Mr. Watkins to fire or discipline Mike.  (I forgot which one) Why did Bradley want Mike fired.  Because the previous prosecutor withheld Brady and Bradley didn’t like that Mike told the truth about her withholding Brady.  (Guess he figured that withholding Brady was ok as long as there was a conviction.)
Again, there is no doubt in my heart that if Craig Watkins had not got elected and if Terri Moore and  Mike Ware were not hired to be First Assistance and Chief of the Conviction Integrity Unit then those other exonerees would still be in prison today.  There is no doubt in my mind.  I hope I don’t get in trouble by sending this email as Mike and Terri don’t know but you all know me and my mouth.  I am sure it won’t be the last time I open it or type it.  I just hope this makes some sense because my emails are really confusing especially when I am trying to explain things.
Please take the time to read the opinion and if anyone has any pull its time we stood up to prosecutors who hide the truth.  Because as you know for every innocence guy in prison there is a guilty person still committing crimes on other victims.  Just ask the other victims in Stephen Phillips case or Thomas McGowan case or Stephen Brodie case or Michael Morton’s case. . . .
Stephen Brodie (false confession).  Another case you know I can talk about but I will shut up.  I got to work.
As you all know, Mike and Terri are back in private practice and I am really truly blessed that I am still working for Mike and Terri where they continue to seek justice. And Thank Goodness that the Court of Criminal Appeals did the right thing in finding that Richard Miles is innocent of murder.
Amen. Congratulations again to everyone involved.

Mexico, Central American prison and jail problems make ours look petty

Just to keep Texas' prison and jail problems in perspective, in Honduras 358 or more inmates died last week in a prison fire, while yesterday in Monterrey, an affluent-business oriented town a two-hour drive from the Rio Grande, at least 44 were killed and guards were taken hostage during feuds between rival cartel members housed in the same facility. (According to the Austin Statesman, Los Zetas forces massacred prisoners associated with the Gulf Cartel "then staged a mass escape.") Indeed, for those keeping score at home, it's worth adding to the tally that in December 2010, prison officials helped 140 inmates escape through the front gate of a prison in Nuevo Laredo.

Texas prisons face much different challenges than Mexican or Central American ones. Ours mostly involve paying for the Legislature's mass-incarceration policies and preventing even more expensive prison building, with a little contraband-related corruption around the edges. But unlike in Mexico or, say, California, Texas has enough prison capacity (barely) to house the prisoners it incarcerates. By contrast, the facility which endured yesterday's riot in Monterrey was horribly overcrowded: "The prison, built to house some 1,700 inmates is jammed full with some 2,700 prisoners."

Meanwhile, the escape in Nuevo Laredo assisted by prison officials shows how corruption problems complicate all these other challenges. I don't know what prison-guard pay is in Mexico, but if it's anything like what Mexican cops receive, it isn't much. Mexican prison corruption, though, typically goes much deeper than just line staff.

As for the fire in Honduras, I've heard many a Texas Sheriff grouse about the Commission on Jail Standards flunking their facility's inspection over faulty sprinkler systems and fire alarms, which some (especially rural) jail administrators consider relatively petty violations. But when 358 people die locked up in jail as a fire consumes them, it doesn't seem so petty. And overcrowding played a role as well. Paul Kennedy picked up on the fact that "At the time of the fire there were 856 inmates in a facility designed to hold but 500. Even more appalling is the fact that more than half the inmates at the prison were either awaiting trial or being held as suspected gang members."

This blog focuses on criminal-justice reform in Texas because I live here. But it's important to recognize things could be much, much worse and some of these annoying bureaucratic dicta and inefficiencies that prison and jail administrators complain about actually serve to make everybody much safer. Just look south to see what happens without them.

Sunday, February 19, 2012

'Affidavit: Texas constable admits ordering bugging'

Out of the East Texas town of Tenaha, another remarkable story from the Fort Worth Star-Telegram about an asset-forfeiture scandal, this time centered around an elected constable. The story opens:
A small-town Texas constable told the FBI he secretly bugged other officials' offices after they were accused of illegally forcing motorists to forfeit their cash, according to a search warrant affidavit.

The affidavit, based on interviews conducted by FBI agents and Texas Rangers, quotes Shelby County Constable Fred Walker as saying he authorized the installation of hidden surveillance cameras and digital recorders even though he didn't have legal authority. It also includes a statement from a witness who claims Walker helped organize a scheme to sell drugs seized from suspects.

It's just another chapter in a longtime drama in Tenaha, a town of 1,160 near the Louisiana border, where nearly $800,000 in cash seized from motorists stopped for traffic violations along U.S. Highway 59 has led to lawsuits and a federal criminal investigation of the county's former district attorney and other officials.

Walker, 53, was Tenaha's city marshal at the time the alleged bugging occurred. He was elected constable in 2010. ...

According to the affidavit, McClure told authorities that Walker had him install surveillance cameras disguised as smoke detectors and hidden voice-activated digital recording equipment in the offices of Tenaha Mayor George Bowers and deputy city marshal Barry Washington. Walker said he wanted to "cover" himself over the traffic stops, most of which were conducted by Washington, McClure said in the affidavit.

Walker acknowledged in an interview the same day that he had authorized the installation of the devices in Washington's office and at City Hall, the affidavit states.
What a pit! This story just keeps getting worse and worse.

News flash: Cop calls Grits a liar

Grits is a liar, says Austin Police Chief Art Acevedo! Go here to read why then come back here for, as Paul Harvey used to say, the rest of the story.

Let's start by quickly granting what was incorrect  in my original post about getting stopped twice Friday night a week ago with my granddaughter on the way home from roller skating (an account which received, much to my surprise and without my assistance, an almost absurd amount of social media attention until eventually the Statesman picked it up). Throughout, with the chief's approbation, I declined comment.

Basically two things I wrote were flat-out wrong, both of which are detailed in an Update/Correction posted at the end of the original item on Friday. First, I recalled an officer pulling his taser out when in fact his hand hovered over his weapon but it remained holstered. After I finally got to see some of the video for myself, I posted a correction. I also posted another correction: I originally thought the deputy constable (the first officer who detained us) had called in the rest of the cavalry and assigned blame to her when I shouldn't. Turns out, she did the right thing and IMO it was APD who overreacted, an opinion which explains why the chief is mad.

What's still in dispute? Mostly red herrings. I never alleged police brutality nor misconduct. In fact, in the comment section and more than a few emails to reporters I insisted there was none. I did say in the post I was "roughly cuffed." And if the tape rolls long enough (I don't know what was released to the media) at some point I asked them to loosen the cuffs as they were cinched up tight enough to be painful - a small thing, perhaps, if it's not you, but a "lie"? To his credit, one of the officers loosened the cuffs shortly before I was released.

Acevedo also pretends in the Statesman article that his officers stopped us because I refused to identify myself to the deputy constable. In fact, the deputy constable's written report, which the chief let me read in his office but would not give me a copy of, she said she stopped us, asked Ty a few questions, seemingly did not think the situation required further investigation and had begun to return to the Millenium Center. It was then that APD was told a deputy constable was on the scene, and they had her patched through via dispatch. Moments before APD was about to roll up on us, the deputy constable told APD that she'd spoken to us, gave them the child's name, told them I was her grandfather, and began to run toward the scene. She never told APD I did not identify myself before I was handcuffed, so that fact-bite was irrelevant. (Judging from the one-sided account, Acevedo apparently did not release the constable's written report, nor the dispatch tape of her saying that to APD along with the materials he gave the Statesman Friday.)

What aspects of my original recitation were correct? Well, basically everything else. Despite Acevedo's inflammatory attack on my credibility, not much is actually in dispute. Someone called 911 when I left the Millennium Center with my granddaughter. I was stopped not once but twice. I did, in fact, allow the Constable to question Ty and she left understanding that I was Ty's grandpa. We were then stopped by several APD officers. I counted six cars initially, with three more arriving soon thereafter and a supervisor arriving later. Acevedo didn't dispute any of that. I was handcuffed. Ty was taken away from me, pulled into a police car and questioned. We were not immediately released. Some minutes later, after they finally called my wife and daughter, we were let go without an apology. And the child had numerous questions and opinions about the incidents that I tried to accurately recollect.

So, on the basis of one factual error which I readily owned after seeing the conflicting video, I am a liar, says the chief. The strangest part is, Acevedo brought me into APD headquarters Thursday afternoon to meet with him and his staff, proposing that we do a media interview together and try and make all this a "teaching moment" for the public (his words). He was upset that the issue was being discussed without him getting to "frame" it. I'd turned down more than two-dozen requests for media interviews on this topic, from every local print and TV outlet to Anderson Cooper, but because the media frenzy had gotten so out of hand even without my participation, after mulling it over with the family, I agreed to do a joint interview with him (now decidedly not happening).

My first hint that Acevedo was about to show me an especially Janus-faced visage came Friday afternoon, when he began leaking emails and launching personal attacks on a local listserv through his favorite stalking horse, retired Texas Monthly publisher Mike Levy. Then Saturday in the paper he's calling me a liar. "Teaching moment" my ass.

It would be convenient for him if I were. Grits has been a bit of a thorn in the department's side dating to the mid-'90s when I co-founded a political action committee that successfully pushed for the creation of Austin's Police Monitor Office and ran a website publishing police misconduct reports from the department garnered under open records. So taking this opportunity to try and discredit me personally must have been just too tempting to pass up.

Did I intentionally make up the drawn taser? Of course not, no more than a witness who falsely identifies a suspect by mistake. In 2001, I helped pass the legislation to require cameras in police cars, for heaven's sake, I knew full well the incident was being taped! I said what I remembered and remembered that detail wrong. Vision and memory is not the same as a videotape. Anyone who follows innocence issues knows much of our vision of constructed from memory and witnesses make mistakes. Carl Reynolds from the Office of Court Administration once recounted how, after he and several others were accosted in a robbery in Atlanta, he "learned later that [he and his] colleagues ... did not even agree on the number of young men." Were some of them lying? I don't think so. Neither was I, and I'm man enough to admit I was wrong. Hence the correction.

Similarly, I was wrong to assume the deputy constable called in the cavalry. With 20/20 hindsight, having reviewed all the materials the chief showed me (which is more than the press has seen so far), she's the one who did it right, investigating a serious allegation without needlessly scaring a child or applying more restrictive force than was necessary to contain the situation. She also told APD moments before they detained me that she'd spoken to the child, gave them her name, and said I was her Grandpa. My apologies for my original, false interpretation, both to the deputy and Constable Danny Thomas' shop.

Many, many people have asked whether I will sue or file a complaint, so let me reiterate here, just as I said in the blog comments and in writing to Chief Acevedo and Ms. Osborn (though somehow she didn't find it fit to print): "Not only am I not going to sue the police, I doubt anyone even violated APD policies so a complaint wouldn't do much either - they're TRAINED to respond like that, which is my main beef with what happened. This wasn't a bug in the system, it's a feature."

As I said in Grits comments and to the Chief, both face to face in front of a roomful of brass and in writing, I don't believe what those officers did violated any law, departmental policy or court ruling, and in fact it likely conformed to APD's training and the expectations of their supervisors. I never said otherwise. It was completely "by the book." But there are some really good books that may not be completely appropriate for a five-year old. I'm not saying don't investigate, I'm saying exercise some self-restraint, discretion and common sense, like the deputy did. When your investigation is happening in front of a small child and there's no immediate threat, I prefer the deputy constable's book to APD's approach. That's the full extent of any policy criticism I have on the incident.

What bugs me most about the Statesman article wasn't some cop calling me a liar - that happens twice a week if you read Grits comments. No, what gets my goat is the chief spent nearly two hours glad handing me on Thursday and never once called me a liar, never once alleged bad faith, said he wanted us to move forward to respond together, blah, blah, blah. Then the next day he ropes in some in-the-can Statesman reporter, dripping out partial information to do a hatchet piece.

There are many types of courage in the world. The kind of courage to confront criminals on the street is certainly one type. Then there's the courage required to admit a mistake. And there's having the grit to look a man in the eye and say the same things to his face that you do behind his back. Or perhaps that last one has become an outdated virtue?

RELATED: Just so Grits can say they've been published as prominently as the original post, here are the two corrections I appended to the original blog post on Friday:
UPDATE/CORRECTIONS (2/17): Yesterday afternoon I had the opportunity to review the documentation, video, audio and police reports related to this incident in Art Acevedo's office and heard his pitch why this blog post was unfair. There are really only two corrections I'd make having now seen the videos and other documentation Chief Acevedo showed me yesterday. (I'm probably going to write about it again over the weekend.) First, I recollected in the blog post that an officer had a taser drawn and from the video the officer's arm was only crooked and prepared to draw. It happened in a flash and like many eyewitnesses, when under a perceived threat, my mind filled in some pieces erroneously, I'll be the first to admit in light of the video evidence. It was not an intentional error. That said, I correctly perceived that all of a sudden a LOT of cops were on us out of nowhere and if I'd made any sudden or untoward moves I'd be tazed or worse. I think it wasn't unreasonable for either of us to feel threatened by them rolling up on us like that.

The other error was that the original post cast unfair blame on the deputy constable. Her report said that after we'd spoken, she was heading back to the Millenium Center thinking the incident was over when the dispatcher patched into the constable's frequency because they'd heard from the Millenium Center she'd gone after us. In the dispatcher's audio, she tells APD just before they roll up on us that she'd spoken to us, gave them Ty's name and told them I was her grandpa. Though I blamed her (unfairly) both at the scene and in the initial post, falsely thinking she'd called in the cavalry, she did not. In fact, in the scheme of things she got it right. Basically two departments with overlapping jurisdictions responded to this complaint: One came at us based on a community policing approach where she walked up calmly, asked a few questions, and according to her report was satisfied and had begun to return to her shift until she heard on the radio APD was coming. By contrast, APD handcuffed first and asked questions later. That's the big difference between the two departments' approaches.

Friday, February 17, 2012

AG pushing warrant roundup to replenish crime victim's fund

Brandi Grissom at the Texas Tribune has the story of "big cuts" by the Legislature at the Texas Compensation to Victims of Crime Fund, noting remarkably that in order to plug the budget gap, "the AG’s office is working with law enforcement agencies statewide to conduct warrant roundups to encourage people to pay their fines and penalties to avoid arrest and to increase revenue into the fund for crime victims."

It's not often you see the government so crassly referring to traffic enforcement initiatives as driven by budget concerns, but times are tight.

Notably, court fees and fines going down likely means fewer criminal convictions. That's positive news overall, despite a shortfall in this one fund (which sounds like it resulted from optimistic budgeting, something which I suspect will be a recurring theme). On the upside, fewer fees from convictions likely indicates lessening near-term incarceration pressure.

The Statesman recently reported the statewide "roundup" is scheduled for Feb. 25.

Thursday, February 16, 2012

Don't politicize 'independent' Houston crime lab

In an incredibly frustrating development, Houston Mayor Annise Parker has decided to ignore Harris County's offer to partner on a joint, regional crime lab, instead suggesting the city create its own "independent" lab governed by a board of political appointees. Reported Chris Moran at the Houston Chronicle, "Under the mayor's plan, the crime lab would take the form of a local government corporation, a combination of nonprofit and government agency similar to the organizations that run the city's convention business, Parks Board and zoo."

What a waste from duplicated resources if they go this route! A regional lab operated jointly with the county would make far more sense, but the big barrier is the city and county politicians cannot work together on a personal level. Councilman C.O. Bradford, a former Houston police chief, expressed that sentiment: "It would be a sad day if we were to go and renovate some existing facility or acquire a new facility and the county were to continue building a new facility," he told the Chron. "To the extent that we can save public tax dollars and not duplicate equipment and not duplicate a facility, I think we will have scored a perfect score."

But that ship appears to have sailed and Mayor Parker now says a concrete proposal for a separate, independent lab may come before the council as soon as next month. She even suggested that one of the Innocence Project groups have a representative on the crime lab board (in the interest of full disclosure, your correspondent works for the Innocence Project of Texas), but this immediately turned the discussion to suggestions that would dramatically politicize the new entity.
District K Councilman Larry Green called for a place on the board for community groups such as the NAACP or the League of United Latin American Citizens.
District E Councilman Mike Sullivan said suggestions to have defense bar or civil rights representatives on the board "all sound like what I'll term, and I mean this with all due respect, kind of politically correct perspectives and points of view. I think that we need to be sure to have some representation by law enforcement, pro-victims' rights groups, Parents of Murdered Children, groups like that."
This are TERRIBLE suggestions, all the way around. If you're going to create an independent board, scientists, not political appointees, should run the lab, based on the interests of science and not the NAACP, victim's rights groups, etc.. For God's sake don't turn the friggin' crime lab into just another opportunity to feud over the culture wars! I could see designating one slot for a prosecutor and one for the defense bar - so that those with professional interest in the crime lab's functioning would have an avenue to express concerns. But most of the board should be chosen for their scientific chops and independence from the system. It would be a catastrophe if the board packed with a cadre of culture warriors.

To her credit, Mayor Parker said, "I clearly prefer to have our forensics sciences not under the influence of police, prosecution or politics," but designating spots on the board for special interest groups would run contrary to that goal.