Friday, March 21, 2014

Of changing science, dead letters, cell phones, pants, money laundering and declining incarceration

Here are a few items that deserve Grits readers' attention but haven't made it into independent posts this week.

CCA debates new junk science writ
On Wednesday Grits attended oral arguments at the Texas Court of Criminal Appeals re: Ex Parte Robbins, the first case in which the high court considers how to interpret Texas' new junk science writ. Judge Larry Meyers thought the Legislature had overstepped its bounds by passing a law that snubbed one of the court's past decisions, but the rest seemed to accept the new statute on its face and instead debated the merits. The crux of the issue: In Robbins, the state's expert later decided she was wrong after she gained more experience and learned more science, so the court struggled to determine if her new position "contradicts scientific evidence relied on by the state at trial," which is the central issue under the newly minted CCP 11.073. (Your correspondent thinks it does, but I don't get a vote.) There were especially good questions from the bench - all eight judges present participated in the discussion - resulting in one of the more probative oral argument sessions I've ever witnessed at the CCA, though it was impossible (for me, anyway) to guess how the vote will come out. See initial MSM coverage here, here, here and, en EspaƱol, here.

Dead letters: CCA flexes its muscles
Here's the Texas District and County Attorneys Association's take on the CCA ruling striking down as unconstitutional a statute requiring that courts send notice to the Attorney General when they consider constitutional challenges (see earlier Grits coverage): "Whether one views §402.010 as an attempt by the Legislature to ensure someone stands up for the validity of legislation in court or an attempt by the AG to step into high-profile constitutional cases, it is clear that in criminal cases, the section is a dead letter. Perhaps more importantly, though, the Court of Criminal Appeals’ decision striking down part of the online solicitation statute is essentially final." Speaking only for myself, I don't see how the statute can be resuscitated.

EFF: Give Texas credit for knowing a cell phone is not a pair of pants
Texas was one of the states lauded by the Electronic Frontier Foundation's Hanni Fakhoury in this column at JURIST titled "State courts stepping up on cell-phone privacy." Noted Fakhoury, "Common sense says a cell phone and a pair of pants are not the same thing and thankfully, the high court agreed." See Grits coverage of the case he's discussing.

TPPF: Too many youth incarcerated for 'status offenses'
Reported the Texas Tribune, "While the number of youths in confinement for noncriminal offenses has dropped by 52 percent nationally in the past decade, thousands, including many young Texans, remain in detention for minor misbehavior like truancy and curfew violations, according to a report released this week by the Texas Public Policy Foundation, a conservative think tank." Though Texas has reduced incarceration rates, according to TPPF, the state "accounts for more than 15 percent of the confinements nationally, with 1,300 juveniles being held in detention facilities for status offenses, which are nonviolent misbehaviors, such as causing disruption in schools, running away from home or consuming tobacco or alcohol."

States slashing incarceration rates
The Pew Charitable Trusts released this analysis noting that both incarceration rates and crime rates are declining. More than half of states reduced incarceration rates from 2007-2012, Pew noted.

Big banks and money laundering
In the wake of the arrest of the long-time chief of the Sinaloa drug cartel, NPR examined the role of mega-banks in laundering money from Mexican drug runners. The story portrays banks as "vulnerable," but Grits has long considered this dirty little secret as evidence of hypocrisy among America's drug warriors. If you really wanted to stop drug smuggling, the way to do it is to end the flow of capital, not to overrun courts and jails with low-level drug possession cases.


"Red" Merriweather Coast said...

I think this is one area where the law does not align with common sentiment at all. I think that most Texans would agree that no one should be kept in prison if a key witness in the trial recants. If that witness is the medical examiner who said she made a mistake, I think that most non-lawyers would say that of course that conviction doesn't hold up.

Actually, how does that work in Texas? Is it possible to get a new trial if a witness recants post-appeals? I'm not sure if that counts as "new evidence."

Anyway, it seems to me that this would qualify as "junk science" because it's not just that the medical examiner changed her mind; research about shaken baby syndrome has definitely advanced our knowledge of it in the past few years. But I don't get a vote either.

If the guy is guilty, wouldn't there be evidence of that in the autopsy results? Doesn't the state still have records of those?

What's your take on the medical examiner? How does she seem to be dealing with changing her testimony? How did she come to the conclusion that she was wrong?

Anonymous said...

I like the TDCAA's "essentially final" comment.

Uhhh, it's dead, Jim.