Friday, January 31, 2014

Raskolnikov still resonates with Texas prison inmates

Check out Maurice Chammah's story in Texas Monthly, "When prisoners read Dostoevsky's 'Crime and Punishment,' it's pretty powerful."

Tuesday, January 28, 2014

Texas among states where former red-light camera exec says company gave illicit gifts, bribes

Reported the Chicago Tribune last week, "A fired executive of Chicago's beleaguered red light camera company alleges in a lawsuit that Redflex Traffic Systems doled out bribes and gifts at 'dozens of municipalities' in 13 other states and says he is cooperating in an ongoing federal investigation." Former sales executive Aaron Rosenberg told the paper "that during his tenure Redflex 'bestowed gifts and bribes on company officials in dozens of municipalities within, but not limited to the following states: California, Washington, Arizona, New Mexico, Texas, Colorado, Massachusetts, North Carolina, Florida, New Jersey, Tennessee, Virginia and Georgia.'"

Among Texas municipalities contracting with Redflex are Austin, El Paso, Plano, Corpus Christi, Grand Prairie, North Richland Hills, Hurst, Port Lavaca, League City, Carrollton, Killeen, Mesquite, and Longview - or at least those are the ones Grits could uncover via a quick online search. This 2008 press release said Redflex operated cameras in "39 communities" across the state. It will be interesting to learn in which ones the former executive alleges the company "bestowed gifts and bribes" to local officials to secure their contracts. This simmering issue could quickly heat up once the fellow starts naming names to the feds.

License plate readers fail to accomplish crime fighting goals

Civil libertarians have expressed serious privacy concerns related to the widespread use of license plate readers by law enforcement, but an equally strong argument against may be that they simply fail to accomplish their goals and aren't worth the bang for the buck.

With the Texas Senate State Affairs Committee charged with evaluating the collection of geolocational data by government this year as part of their interim charges (pdf), I was interested to see that CrimeSolutions.gov - a federally sponsored site which provides evidence-based evaluations of crime-fighting strategies - lists license plate reader technology as a tactic which has "no effect" on crime.

Studies have found neither general nor specific crime deterrent effects from deployment of license plate readers and only a slight increase in recovery of stolen vehicles. There was a short-term spike effect on vehicle thefts when police used manual license plate readers as opposed to the stationary ones installed on the side of the road, but "the effect faded over time."

Given those results, it's hard to justify government spending on license plate readers given that "The cost of the license plate recognition (LPR) technology is approximately $20,000-25,000 per unit."

Sunday, January 26, 2014

Statesman Newsflash: Burglar alarms almost never catch burglars

Finally covering a topic Grits has been hammering on for years, the Austin Statesman today published a report by Eric Dexheimer regarding wasted police resources spent responding to false burglar alarms, though the article IMO understated the problem. Reported Dexheimer ("Nine times out of ten, a burglar alarm means no crime," Jan. 25):
An American-Statesman analysis of police statistics over the past five years shows that, on average, Austin police respond to more than 80 burglary alarms every day. Nine out of 10 of those are false.

The high rate of false alarms — most commonly the result of equipment failure or user error — isn’t unusual. Industrywide, false alarms rates of 90 to 99 percent are common.

Large municipal police forces have complained for years that answering tens of thousands of unnecessary calls for service to check out alarms installed and monitored by private companies drains away manpower and diverts their attention from more serious policing — such as genuine burglaries, which are reported about 20 times a day in Austin. While security companies say alarms can deter break-ins and limit their severity, police say they rarely catch criminals thanks to an alarm. ...

And, while the city’s alarm calls trended slowly downward between 2008 and 2012, last year saw an increase in both the number of alarms and percentage that were false. In some parts of the city, especially well-to-do residential neighborhoods, false alarms demanded more police attention than any other type of calls except traffic stops.
The article stressed a point this blog has been making nearly since its inception: That burglar alarms in practice don't actually contribute to solving burglaries:
Many customers are under the impression that home and business alarms installed and monitored by private companies, which can cost upward of $100 a month, help police nab crooks. “Somehow, the idea has been planted in their heads that we’re going to beam down Star Trek-like and catch the burglar,” said Shanna Werner, alarm coordinator for Salt Lake City.

But in truth, police say most burglars are in and out in minutes. And like most departments, Austin treats alarm calls as a low priority — responders use no lights or sirens, and travel at the speed limit. More urgent calls bump alarm calls.

The result: “By the time it’s dispatched, the chance of catching anyone is next to zero,” said Sgt. Robert Hester, a former longtime supervisor in Austin’s burglary unit.
Austin Chief Art Acevedo defended the policy of police responding to burglar alarms but said the department does not keep records on how many arrests result from them. If that's true (and I must say I doubt it), it's because such data would show the policy he's defending is a complete waste of time and resources. In 2007, an internal APD analysis of burglar alarms found that 99% of alarms - well above the 90% estimated by Dexheimer - were false, and just eleven arrests were made based on burglar alarm responses compared to 7,467 burglaries reported in Austin that year. All those arrests were from commercial alarms; no arrests that year resulted from residential alarm calls.

There's no reason to believe Austin PD has gotten more efficient since then. Indeed, wrote Dexheimer, "The department’s efforts [to reduce false alarm calls] have been hampered by a series of weak ordinances and laws that provide little incentive for alarm companies and their customers to cut down on the frequency of false alarms." Dexheimer quoted from a 2012 Urban Institute report on the topic that I hadn't seen before which demonstrates this is a national, systemic problem.

For many years, Grits has argued that one of the best ways to boost patrol coverage without raising taxes to hire ever-more officers would be to implement "verified response," placing the burden on alarm companies to verify a crime has occurred before sending police to investigate. In a town like Austin with one of the lowest clearance rates for burglaries in the country, that would allow police to devote more resources toward actual crime instead of showering subsidies on alarm companies and more affluent neighborhoods. The biggest barrier to this is political: Whenever they're asked to foot more of the burden, alarm companies gin up their customers with inflammatory, misleading propaganda to scare local decision makers into backing off. But if the public really understood the economics of the situation, IMO even alarm company customers should support verified response - at least if the goal is to reduce burglaries and catch burglars.

One more aside: After the Texas Tribune covered a story last year that Dexheimer had broken about Attorney General Greg Abbott drilling a well on his property to avoid mandatory watering restrictions, Eric published a snarky blog post about how the story seemed "familiar" because the Statesman had done it first. So it's hard to resist mentioning that the only online version of the internal APD report referenced in today's Statesman story is posted on Grits' Google drive, much less that this blog beat the Statesman to the punch about the prevalence of burglar alarm calls in affluent areas of town. It'd be nigh impossible to Google this topic without finding those articles. I'm not generally one to fret over credit; indeed, I tend to think the "scoop" is dead. But if media folk are going to grouse about who scooped whom, perhaps they should acknowledge when they're the ones following up on stories somebody else reported first.

See related Grits posts:

Thursday, January 23, 2014

Critiquing Dallas PD policy giving cops, but not citizens, a "cooling off period" before questioning

Radley Balko and the blog Unfair Park have good posts up criticizing the new Dallas Police Department policy giving cops 72 hours to get their stories straight after shooting incidents. From Unfair Park:
Last September, Jeff Noble, a retired deputy chief with the Irvine, California, police department and University of South Carolina criminology professor Geoffrey Alpert performed an analysis of existing scholarship for the FBI Law Enforcement Bulletin. Their conclusion? Giving cops "cooling off periods" is a bad idea.

They say this for two reasons, both of which are more or less intuitive. One is that giving officers several days to replay -- and, consciously or not, revise -- an incident in their minds seems to harm their recall. The research on the subject is still in its infancy, but generally backs this up. ...

The other part is that such cooling off periods are deeply unfair.

"Now you have this dichotomy where police are treating themselves one way and treating everyone else in the world another way," Noble tells Unfair Park.

"We would never in law enforcement allow a suspect, who may have also undergone a stressful event, to have two or three days to collect their thoughts," he adds. They're asked to provide details as soon as possible.

If, as Brown argues, officers give a more accurate account of events after three days, then it follows that it would be in the interest of justice to give the same leeway to suspects.
See related Grits posts:

Wednesday, January 22, 2014

State-level anti-NSA surveillance bills popping up

Reported Mother Jones (Jan. 21):
This month, lawmakers in six states introduced versions of model legislation designed to deny the NSA state resources or cooperation from state officials. The bills cover everything from banning evidence collected by the NSA from being introduced in state courts to shutting off the supply of water and electricity to the agency's in-state data centers.

"If the feds aren't going to address the issue, then it's up to the states to do it," says David Taylor, a GOP member of the Washington state House of Representatives whose Yakima Valley district hosts an NSA listening post. Taylor's bipartisan bill, introduced last week, would cut off "material support, participation or assistance" from the state and its contractors to any federal agency that collects data or metadata on people without a warrant. Practically speaking, it would mean severing ties between the NSA and state law enforcement, blocking state universities from serving as NSA research facilities and recruiting grounds, and cutting off the water and power to the agency's Yakima facility.

Similar bills, some of them less broad, have been floated in California, Oklahoma, Indiana, Missouri and Kansas. Others are expected in coming months in Michigan, Arizona, and Utah.
Given that one of the NSA's main spook data centers resides in San Antonio, I'd love to see similar legislation filed in Texas during the 84th legislative session in 2015. According to this video from the Tenth Amendment Center, an NSA data center in Utah uses 1.7 million gallons of water per day. If the San Antonio location uses anywhere near that much, it's not an insignificant thing given that city's chronic water shortage:


Since Barack Obama will still be president when the Texas Legislature meets again, I could see this gathering significant attention and momentum among the Tea Party crowd, though it would be virtually impossible to pass: The fact that House Speaker Joe Straus hails from San Antonio probably means it could never get a floor vote in that chamber, while the 2/3 rule would probably keep it from getting a vote in the Texas Senate. Still, the tactic would raise the profile of electronic privacy issues and, if something like that ever passed in a state like Texas or Utah where the NSA has a big physical plant, it'd be awfully fun to watch what happens.

RELATED: What can states do to rein in NSA phone surveillance?

Tuesday, January 21, 2014

Graves: State bar should discipline Charles Sebesta

Now that the Texas Legislature has extended the statute of limitations for the state bar to discipline prosecutors, exoneree Anthony Graves wants former Burleson County District Attorney Charles Sebesta to face discipline for withholding exculpatory evidence in the trial that sent him to death row. See coverage from:

Media demagoguery won't help Potter County with jail crowding solutions

Local media discussions about jail overcrowding can sometimes be dishearteningly ignorant. At the Amarillo Globe-News, the "cirector [sic] of commentary" Dave Henry had a column on Jan. 18 titled "Get out of jail free cards no solution to crowding" that includes so many misperceptions and red herrings it's hard to know where to begin.

Earlier Globe-News reporting on the subject of Potter County Jail overcrowding had been downright thoughtful, explicating a consultant's analysis that broke down the various contributors to a full jail.  Kevin Welch reported ("Potter commissioners review options to ease jail overcrowding," Jan. 13) that:
Larry Irsik, a principal at Architexas, presented an overview of his company’s analysis, which involved many county departments.

He said Architexas looked at the types of inmates the jail holds, the process of moving through the justice system, pretrial risk assessment, probation and alternative monitoring, the speed of investigations and pretrial alternatives to incarceration.

One factor contributing to case delays is the backlog of the Texas Department of Public Safety crime lab.

“That was consistent throughout,” said Jeff Bradley, vice president and global director of HOK’s justice department.

Other delays were caused by the inability of courts, the jail and prosecuting attorneys to share information.

“There’s actually three software systems,” Bradley said, leading to redundant input of information and the potential for errors.
Using technology is one way the county could reduce its jail population. GPS tracking devices would cost about $2 per day for inmates awaiting trial versus $54 per day to house an inmate, according to the report.
Arguably, many folks in the jail could just be released on personal bonds. But even if judges felt that GPS tracking were necessary, by these data it would cost 3.7% of what they're paying to keep those folks locked up. In an era of declining crime, jail overcrowding is more often a result of failures in the system than an explosion in the number of lawbreakers. The consultants are right to look at excessive pretrial detention and inefficiencies in the courts as central causes of overincarceration.

Looking at the most recent jail population data for Potter County, a whopping 61% of inmates in the county jail hadn't been convicted of anything yet but were being held pretrial - nearly a quarter of Potter jail inmates are being held pretrial on lower-level misdemeanor or state jail felony offenses. Statewide, just 18.4% of jail inmates are misdemeanor and state jail defendants awaiting trial, so Potter is holding a greater proportion of low-level arrestees than other jurisdictions.

Bottom line, they're just incarcerating more people in Amarillo than they need to: Of counties with more than 100,000 residents, Potter County has the fifth highest county-jail incarceration rate, according to the Commission on Jail Standards. Their incarceration rate is 3.98 per 1,000 residents (compared to 2.2 per 1,000 in next-door Randall County, which is about the same size).

In his column, Mr. Henry never acknowledged that most Potter County Jail inmates have not been convicted of anything and compared suggestions that some of them be released to a jailbreak, echoing the Sheriff's line that if released they'd immediately launch a crime spree:
Last Thursday, there were 506 inmates at the jail — 263 considered violent and 243 considered nonviolent. That breaks down to 52 percent violent and 48 percent nonviolent.

It sure would be nice to get rid of nearly half the jail population just to ease the numbers, but is this really a solution?

“Just because they have a drug possession (charge), that means ‘Oh, well, we’ll just cut these people loose.’ OK, we’re going to cut them loose. So we’re going to give them more time to go do something else (illegal),” said Potter County Sheriff Brian Thomas. “What’s the answer? I don’t know.”
So the Sheriff a) has no solutions to offer (except, implicitly, soaking the taxpayers for new jail construction) and b) appears to think the purpose of jail is to punish people before they're convicted, not after. If defendants are a danger to the community and need to be locked up, that's for a jury or a judge to decide after their case has been adjudicated. Before then, they're still "innocent until proven guilty," though admittedly that legal principle (particularly in Potter County, apparently) is mostly honored in the breach.

Mr. Henry is particularly concerned that pot smokers - mostly misdemeanor defendants, it should be noted - might be released from the jail:
Those who advocate the release of “nonviolent” offenders caught with a miniscule amount of an illegal drug have a rather unrealistic view of such offenders. If it could be guaranteed that all such offenders were merely puffing away in their parent’s basement with the only negative effect being a case of the munchies, most would probably say throw open the jail cell doors.
However, no man is an island.
What of drug users who neglect their responsibilities (children, family members, loved ones) just to get high? Or committed a crime for which they did not get caught in order to finance their high?
I hear often that the supposed innocent use of weed does not lead to the use of hard drugs. True, this is not automatic. From personal experience, though, I know of several acquaintances that started off with pot, and are now paying the price later in life (health-wise) for using hard drugs.
A little jail time, rather than a slap on the wrist and a get-out-jail-free card, just might wake some people up to the dangers of drug use.
This is pure ignorance: Most of these defendants, even if convicted, will never be sentenced to jail time. Pot possession under two ounces is a Class B misdemeanor and defendants almost always receive probation. For that matter, people convicted of possessing less than a gram of harder drugs get probation on the first offense, by law. They'll spend more jail time pre-trial than as a result of a sentence, a manifestation of the adage in Grits' epigraph that one might beat the rap but you won't beat the ride. Those folks are ALL getting out of jail sooner or later (sooner, if their families come up with bail.) To read his column, you'd think he believes they'll stay locked up forever and Amarillo will never need worry about them again.

As for Henry's friends who "are now paying the price later in life (health-wise)" after starting out as pot smokers, it must be said that alcohol is far more unhealthy than marijuana, by any measure, which is why a half-day's drive up Highway 87 from Amarillo in Colorado they've flat-out legalized the substance altogether. But one suspects the Globe-News won't soon be leading the charge to ban booze and incarcerate beer drinkers.

In recent years, many counties overbuilt local facilities and ended up needlessly boosting taxes to pay for debt on jails they didn't need. Folks in Amarillo could ask their friends in Lubbock about that. It sounds like Potter County commissioners are getting decent advice from their consultants on the actual sources of jail crowding (I've filed an open records request for the consultant's report to see for myself), but this sort of foolish, fact-free demagoguery from the local press won't help matters.

Monday, January 20, 2014

Rare coverage of high criminal court races comes from blog, not MSM

The MSM has all but completely ignored the races for Texas Court of Criminal Appeals, but thankfully Bob Mabry at the blog Courts and Writing has synopses of the Republican primary candidates, which are frankly the only ones that matter. See his writeups of candidates running for:
The latter two items are more substantive. Mabry also has posted brief writeups of several races for various Court of Appeals in Southeast Texas:
I must say, given that crime coverage is such a staple of every daily newspaper and TV news broadcast in the state, Grits doesn't understand why these Court of Criminal Appeals races have been all but completely ignored by the press. (The Longview News-Journal started running profiles of the CCA candidates, then stopped before finishing the job.) The MSM seems transfixed on the most salacious details of a handful of cherry-picked individual cases - usually chosen for their shock value rather than their societal import - but pays almost no attention to Texas' high criminal court, even when their rulings affect thousands of cases or degrade constitutional rights. And nobody in the press seems to care about vetting candidates for that body, even in a year when there are three open seats for the first time in recent memory.

It's difficult to make sense of that dynamic without viewing the media's crime coverage through an incredibly cynical lens. I try to give my reporter-friends the benefit of the doubt, but there are days when they don't make it easy.

RELATED: Dearth of small-government candidates in Court of Criminal Appeals races, and High-court watching: When the right-hand shoulder becomes the middle of the road.

Sunday, January 19, 2014

Mississippi gets Right on Crime

There's been a Jerry Madden spotting in Mississippi where the former Texas House Corrections Committee Chairman was brought in to advocate de-incarceration proposals palpable to that state's conservative Republican legislature, according to AP (Jan. 19):
Republicans brought in an unlikely evangelist for prison reform: American Legislative Exchange Council.

There are few organizations more likely to raise a Democrat's dander than ALEC, which has faced numerous allegations that it's a conduit for big business to pass out model bills that Republicans state lawmakers then enact for corporate benefit. ALEC says the attacks are unfair — that it's a place for lawmakers and businesses to work together and that lawmakers modify bills to fit local conditions. But it's safe to say that liberals find the group odious and that ALEC doesn't love them back.

But last year, ALEC enlisted in "Right on Crime," a push by a conservative Texas think tank that argues states are spending too much money locking up nonviolent offenders in exchange for not very good results.

"Prison serves a necessary role, but it's not the right answer for every offender," said Cara Sullivan, director of ALEC's judicial performance project.

Sullivan argued before a small group of Mississippi lawmakers that what they're doing is holding prisons accountable for the dollars they spend.

"Just because public safety is important doesn't mean we can give it a hall pass on spending," she said. "We need conservatives to lead the charge on this. These are conservative reforms."
To bolster her case, she brought along former Texas Rep. Jerry Madden, who helped pass a prison reform that cut the number of inmates in that state. Madden is now a senior fellow with Right on Crime, traveling the country to argue that lawmakers make smart changes to cut the prison population while enhancing public safety.

Madden then joined the competition to link the term "conservative" with shrinking the number of prisoners.

"It was a conservative plan," Madden said. "It was saving us money; it was making us safer; it was treating people who had drug problems, who had alcohol problems, who had mental health problems."
Sometimes Texas seems like the conservative gold standard among Mississippi Republicans, where cowboy-boot wearing Gov. Phil Bryant seems to consciously invoke echoes of longtime Texas Gov. Rick Perry. So, maybe it worked.

"It is conservative," former prosecutor and state Sen. Brice Wiggins, R-Pascagoula, said afterward.

Saturday, January 18, 2014

Jury: Coercive interrogation, false arrest violated rights of innocent woman accused of murder

Hephzibah Olivia Lord won her false arrest lawsuit against Dallas Detective Dwayne Thompson three years after she was arrested and later released on a murder charge when her boyfriend committed suicide, the Dallas Morning News reported. The jury concluded Thompson, a detective prominently featured on A&E's reality TV show, The First 48, acted with malice after viewing a tape of an interrogation where he flew into a profanity-laced rage. Reported the News' Kevin Krause (Jan. 17):
Thompson and his murder cases have been featured prominently on the popular A&E reality show The First 48. The show’s premise is that officers’ chances of solving a murder are “cut in half if they don’t get a lead within the first 48 hours.”

Thompson, a former Army captain who served in Saudi Arabia during Operation Desert Storm, was suspicious of Lord almost from the beginning. She alleged in her lawsuit, filed almost three years ago, that he lied about certain evidence while ignoring other evidence that was favorable to her.

One of Thompson’s former colleagues in the homicide unit testified against him during the trial. Kim Sanders, who retired from the Police Department in 2008 after more than 30 years, told the jury he believed Lord was innocent based on his review of the evidence. He also questioned Thompson’s tactics while questioning Lord shortly after her boyfriend died.

In a video of the interrogation, Thompson asks Lord basic questions about what happened that night. He then explodes without warning into a rage and screams accusations at Lord, telling her over and over that she is lying and that he knows she killed Burnside.

During one of the more dramatic moments of the trial, Thompson’s lawyer acknowledged fearing that the jury could be swayed by a video of that intense interrogation. The lawyer, Jason Schuette, looked at Lord and told her he didn’t think she killed Burnside.

About the interrogation, Sanders said the interview amounted to intimidation and called the tone and line of questioning a “formula for a false confession.”
[Lord's lawyer Don] Tittle told jurors during his closing arguments that a verdict for his client would curb police abuses and reduce the chances of someone being arrested for murder when the evidence isn’t there.
As Grits noted on Wednesday, to me it wasn't just Thompson on trial but the Reid technique of interrogation, whose central tenets were on display in Lord's interrogation video: Intimidation, accusation, psychological manipulation, lying about evidence, cutting off denials ... these methods are taught to police interrogators across the country and, as Mr. Sanders told the jury, amount to a "formula for a false confession."

The Reid technique was developed to fill a void in the years after "third-degree" interrogation tactics were banned, using psychological manipulation rather than physical force to coerce interrogations but based on a similar approach. The US Supreme Court's famous Miranda warning was instituted in part as a (insufficient) buttress against the method's coercive tactics.

Ironically, one of the most prominent cases on which Det. John Reid, its creator who built a consulting empire around the approach, built his reputation in the 1950s resulted in a false confession that wasn't exposed until the poor forester, Darrel Parker, was exonerated and released in 1991. "In August 2012, the state of Nebraska issued a declaration of innocence to Parker and agreed to pay him $500,000. Attorney General Jon Bruning publicly declared that Parker was wrongly convicted and apologized."

In the U.K. and several other countries, the Reid technique has been abandoned in favor of a less confrontational method focused more on gathering information than extracting a confession. Dubbed the PEACE technique, the name is a mnemonic for Preparation and Planning; Engage and Explain; Account, Clarify and Challenge; Closure; and Evaluation. In the United States, though, the Reid method reigns supreme.

One reason police have resisted requirements to record interrogations - despite the superior evidential value of recordings in court - is that Reid methods often appear coercive and prejudicial to an outside viewer. That's because they are. When they're employed against a guilty suspect, people don't tend to care. But when they're employed against the innocent, they undermine the credibility of the investigation and the investigator. And in the case of Hephzibah Olivia Lord, a Dallas jury decided that, coupled with her false arrest, it violated her civil rights.

RELATED: From Texas Monthly, "How to get a teenager to admit to a crime he didn't commit."

Friday, January 17, 2014

'First 48' profits from false accusations against innocent people

The New Times in Miami has an exceptional piece about an reality show on A&E titled "The First 48 makes millions off imprisoning innocents." Premised on the (dubious) notion that most murders are solved in the first 48 hours or not at all, the reality show depicts police investigations during those first two days after a murder. In Dallas, Detective Dwayne Thompson, whose interrogation methods were highlighted in this Grits post, has been one of the detectives profiled.

The Miami New Times hones in on the fact that the show's producers are looking for good television, not necessarily the truth about who committed the crimes depicted. One of the innocents they identify who was falsely accused on the show was from Houston:
1,300 miles south in Houston, an innocent man named Cameron Coker languished inside a Harris County jail awaiting trial. In mid-July 2009, 16-year-old Eric Elizarraraz had been shot at an apartment complex just off Highway 6. The boy had confronted a group of men who'd insulted his girlfriend. At least three witnesses offered county deputies a similar description of the killer — tall, light-skinned, skinny — and later picked 18-year-old Coker out of a lineup. As cameras rolled, Coker, who professed innocence, was arrested and charged with murder.

When the episode "Straight Menace" aired on March 11, 2010, viewers howled for Coker's execution. "Put him down," one commenter wrote in an online forum. "They got the death penalty in Houston?"
But the case was substantially more fraught with error than viewers realized. Though the show didn't broadcast it, none of the witnesses whom detectives used were positive Coker was the shooter.

In February 2012 — after Coker had spent nearly three years in jail — Steven M. Smith, a professor of psychology at Texas A&M and an expert in human memory, tracked down the witnesses as part of Coker's defense. The first, Andrew Nguyen, confessed he hadn't seen the shooting and had "taken a good guess," picking Coker out of the lineup "based on what my other friends had told me," according to court documents.

Another witness, Roberto Valdez, who confessed he'd been drunk and high on weed and Xanax the day of the murder, said he told detectives he wasn't sure who pulled the trigger and would "guess." At the bottom of the photo array, he wrote, "I'm p.," which he later told Smith had meant, "I'm probably wrong." A third witness also admitted he hadn't been sure.

In mid-2012, after spending 1,095 days in prison, Coker was released. Prosecutors' closeout memo had cited "witness identification problems."

"I couldn't believe they did that to me," Coker now tells New Times. "It was like a torture that no one should have to go through in this life." Coker's attorney, Vivian King, says she's repeatedly asked The First 48's producers to stop rebroadcasting the episode now that Coker has been exonerated, but they've declined. First 48 producers refused to comment for this article.

"Just imagine the image they made out of me," Coker says, adding he fears retribution for a crime he didn't do. "Even when I walk places I've never been, people know me from The First 48 without really knowing what happened."
Read the whole story. Grits has never been comfortable with the notion of crime as entertainment, so I must admit this New Times story confirms many of my own biases. It's irresponsible when accusations are trumpeted from the mountaintops but dismissals are back-page news, if they're acknowledged at all. They'll keep doing it, though, as long as the method generates strong ratings.

Texas parole board can't handle the truth if it's "I am innocent"

Check out Dallas exoneree Cornelius Dupree's account in Guideposts of what it was like to be denied parole because he wouldn't admit to a crime he did not commit as part of a sex-offender treatment program. The entire piece is compelling and well-written so I won't excerpt it, just go read the whole thing. The article is titled "Nothing but the truth," but it's hard to read it without recalling Jack Nicholson's line from A Few Good Men:

Salvaging Salvador: Part Two

The other day Grits linked to and offered initial thoughts on the unanimous Texas Court of Criminal Appeals decision in Ex Parte Coty, in which the court reversed course regarding how to handle habeas corpus writs related to drug convictions based on lab analyses from fired and discredited DPS crime lab worker Jonathan Salvador. As it turns out, a concurrence to that opinion by Judge Tom Price clears up some of the questions raised in that initial post, so here's Judge Price elucidating exactly what all this means:
Once the habeas applicant is able to establish a pattern of misconduct by an agent of the State (here, Salvador), then the burden shifts to the State to produce evidence to show that its agent did not behave in accordance with this pattern of misconduct in the applicant's particular case. In the absence of such a specific rebuttal, it may be said that the applicant has demonstrated that false evidence was used against him. But even if the State cannot satisfy this shifted burden of production, and the presumption of falsity therefore prevails, the due process inquiry is not over. It remains incumbent on the applicant, as a prerequisite to relief, to establish that the false evidence was material.

I write further only to caution that, on remand, the convicting court and the parties take care not to conflate the two issues - falseness and materiality. For example, it would be a mistake to believe that the state can satisfy its shifted burden to rebut the inference of falsification with evidence that Salvador's purported test results were later verified by [labworker Brian] Nacu. Later verification does not necessarily serve to rebut the inference that a State agent who has falsified evidence in the past also falsified evidence in the instant case. After all, the false evidence is Salvador's lab report itself, which falsely claims to have reached an accurate result from legitimate testing. Similarly, neither the fact that a drug dog alerted to the evidence and Officer Jacobs believed it to be cocaine, nor the positive results of the field test, say anything with respect to whether Salvador later falsified his own test results. That the drug testing letter issued by the Department of Public Safety and signed by Salvador was dated thirteen months prior to the applicant's guilty plea likewise fails to prove that Salvador did not report fraudulent test results. The right inquiry with respect to falsification would simply be whether the State can offer specific evidence to rebut the inference that, notwithstanding that he has falsified reports in the past, the State's agent did not likewise falsify his report in the instant case. An inquiry that is any broader than this - such as an inquiry into the ultimate accuracy of the State agent's purported test results, or whether they can later be verified by legitimate testing - is really part and parcel of the materiality analysis. And that analysis is distinct from, and comes after (or alternatively to), an inquiry into whether false evidence was used.
John Stride summarized the import of the concurrence in the Texas District and County Attorney Association's case summary thusly:
Rebutting the presumption of falsity is not as easy as it seems. For example, if a scientist had just guessed a substance’s type and weight without doing the tests he claimed he did, the State can’t show that evidence is not false by proving the guess was accurate. The actual evidence that the jury used to convict, the scientist’s report that claims he ran tests he never ran, is still a lie. And that lie is the source of the due-process violation. The fact that the guess was still accurate will go to the materiality of the evidence, not its falsity.  
Still, if the presumed false report is deemed immaterial, the conviction still stands. Bottom line, wrote Stride:
the CCA has taken a step back from a “defendant always wins” rule. Now, even if there was a bad chemist on a case, prosecutors can point out that the defendant had other, properly tested dope at the time of the arrest, confessed, etc., and perhaps save the case. But with a bad enough scientist, a defendant may be able to win in those cases where the bad science mattered to the case and we cannot retest the evidence.
That clarifies some of the questions raised in the previous post, but not all. In cases where evidence has been destroyed, I'm still unclear how a positive dog-sniff or preliminary field test would impact whether a presumed-false lab result was material. Such evidence couldn't provide a sole basis for securing a conviction beyond a reasonable doubt, so standing alone I still fail to see how it could be used to deny habeas relief unless, for example, the defendant confessed to police or a second, legitimate lab report confirmed the presence of illegal drugs. But then, IANAL; one suspects all will be made clear as various cases work their way through the pipeline.

There's a sense in which Judge Price's analysis, while making better sense of Judge Hervey's main opinion, reflects a distinction without a difference. Whether additional evidence overcomes the falsity or the materiality prong of the court's new test won't matter much to defendants. Bottom line, except for cases where re-testing shows Salvador falsified results, the only defendants likely to receive relief are those in whose cases the drug evidence has been destroyed, and even then the CCA has given prosecutors potential means to keep the convictions intact.

Thursday, January 16, 2014

Balko: 'Two-and-a-half cheers for Dallas Police Chief David Brown'

The topic of police union attacks on Dallas Police Chief David Brown was on Grits' to-do list to write about tomorrow morning but Radley Balko beat me to the punch at his new blog at the Washington Post (congrats on that, btw). With only minor caveats, I pretty much agree with his comments down the line so just go read the whole thing.

RELATED: Dallas police management should ignore union demagoguery.

Roundup: Too crazy to drive? ... and other stories

Here are a few odds and ends that haven't made it into their own, individual posts but deserve Grits readers' attention:

Drivers license application includes pointless, invasive mental health question
The Houston Chronicle today reported on criticism of a question on the Texas Department of Public Safety driver's license application asking, "Within the past two years, have you been diagnosed with, been hospitalized for or are you now receiving treatment for a psychiatric disorder?" The question has been on the application since the 1970s, but "Gyl Switzer, public policy director for Mental Health America of Texas, said the mental health questioning should be purged from applications." In 2012, 242 applications were flagged for review by an advisory board at the Department of State Health Services. Of those, 102 "did not forward information from their doctor so their applications were tossed out. The board recommended 32 people be denied a license."

Travis jail eliminates in-person visitation, profits from video contract
The Travis County Jail has switched exclusively to video visitation, eliminating face-to-face visits with inmates by friends and family, reported the Austin Statesman. Now, only attorneys can meet in person with inmates. Notably, the jail is making money off the deal. "Securus Technologies Inc. installed the system at no cost to the county last year. Securus charges outside callers $20 for a 20-minute conversation with an inmate and gives the county $4.60 from each call." County commissioners, though, weren't told when the deal was approved that face-to-face visits would be eliminated. Notably, the Prison Policy Initiative last month called on the FCC to regulate charges for video visitation, complaining that the elimination of in-person visits often resulted from "perverse incentives" created by such contracts.

Metal detectors installed to prevent cell-phone smuggling in Bexar Jail
The Bexar County Jail has installed metal detectors that all staff are now required to pass through in order to combat contraband smuggling after they found a smuggled cell phone, reported the SA Express-News. "In October, inmate Paul Reyes was caught with a cellphone after photos of him in jail surfaced on Facebook."

'The Real Victims of Satanic Ritual Abuse'
An article from Slate with the same title as this subhed explored the Fran and Dan Keller case out of Travis County.

Frisco man arrested for sign warning drivers of speed trap
Another arrest for contempt of cop.

SAPD may test "feasibility" of body cameras
San Antonio is considering a pilot program to test the "feasibility" of police officers wearing body cams, reported the Express-News. I'm a big fan of this idea. A New York Times story on the topic last year said departments using body cams saw dramatic reductions both in citizen complaints and use of force incidents. (Note to Adafruit and other wearable tech producers: Don't let Taser International corner this market!)

Border Patrol lending drones to local law enforcement
The Border Patrol has been using drones on behalf of local law enforcement agencies, including along the Mexican border, though they won't say which ones. Reported the Washington Post, "there is a huge, unfed appetite among police agencies for drones and their powerful surveillance tools, which include infrared cameras and specialized radar."

Wednesday, January 15, 2014

Salvaging Salvador: CCA reverses course in DPS crime lab mess

Reversing course from its prior rulings that would have overturned nearly every conviction in which former DPS crime lab employee Jonathan Salvador analyzed evidence (nearly 5,000 cases), a Texas Court of Criminal Appeals ruling today cleared the way for many if not most of those convictions to be upheld.

The court established a two-part test, dividing the burden between the state and defendants. The court continued to maintain that, because of Salvador's egregious misconduct, his lab results should be presumed false. But now the state can overcome that presumption through re-testing. (According to the Forensic Science Commission, evidence is available for re-testing in about 50-75% of cases.) Further, it now falls to the defendant to show that the tainted evidence is "material."

Hard to bottom-line this ruling. In cases where evidence exists to be re-tested, convictions will likely be sustained unless it's discovered that Salvador actually faked the results. (Unlike the Forensic Science Commission, the CCA used the term "dry labbing" to describe Salvador's misconduct.) But the court also seemed to say other, weaker evidence may counter the presumption of falsity, such as a positive dog-sniff or a field test (reading footnotes 12 and 7, taken together). That part of the ruling seemed a bit flaky to me, indicating the court will bend over backward to keep these convictions intact. A dog sniff wouldn't be enough to secure a conviction beyond a reasonable doubt, so if Salvador's analysis is presumed false, how can it be sufficient to uphold one?

As a non-lawyer, it's also difficult for me to understand the issue of "materiality" as it pertains to these cases. If someone is convicted of drug possession, the lab test is presumed false, and the state has no other evidence indicative of guilt, I can't think of any circumstances where the presumed-false drug evidence could be considered immaterial. Perhaps I'm missing something.

In any event, it's clear the CCA intends to give the state plenty of wiggle room, even in cases where evidence has been destroyed and can't be re-tested. This was an enormous flip-flop by the court and a big win for prosecutors hoping to salvage convictions in cases worked by an incompetent and disreputable forensic analyst.

MORE: An attorney friend emailed to say it's possible the court opinion may have opened the door for Jonathan Salvador to be called to testify in habeas hearings, declaring "the only thing I might quibble with (or is still an open question) is your statement that “now the state can overcome that presumption through re-testing.” The decision said that the state must “offer evidence demonstrating that the laboratory technician committed no such intentional misconduct in the applicant’s case.” Will retesting alone get them there or does Salvador have to testify? I wouldn’t be surprised if the CCA would be happy with retesting alone, but Salvador could be called to testify at the writ hearing and impeached by the defense too and then it might come down to his testimony."

Good point! As I said, it's difficult to tell precisely what this ruling will mean on the ground. It would make for an interesting (and for prosecutors, a troublesome) development if Salvador's testimony were required to demonstrate his intent in every case.

AND MORE: See a followup post answering some of these questions.

How Dallas cops are trained to interrogate suspects

At the Dallas News, Kevin Krause has a story ("Dallas detective defends investigation of woman later cleared in murder," Jan. 14) on a false arrest lawsuit against Dallas Detective Dwayne Thompson, brought by a woman named Hephzibah Olivia Lord who was arrested and later released on a murder charge after her boyfriend committed suicide. This bit jumped out at me:
Thompson also defended his aggressive interrogation of Lord several hours after the death. Jurors watched a video of the session during which he shouted profanity-laced accusations at Lord while working himself into a rage. Thompson said he employed techniques that he had learned during training, one of which is to directly accuse someone of a crime to see how they react.
“As unpleasant as it is, you have to make every attempt to arrive at what happened,” he testified.

But that interview, while revealing some inconsistencies, yielded no strong evidence of murder, Thompson said.
Lord did not crater under such "questioning." But some folks do, including innocent ones. (Ask Christopher Ochoa.) Thompson is almost certainly correct that he was trained to behave that way - it's a significant cause of false confessions and a method central to the so-called "Reid technique," which is the basis for nearly all police interrogation training in America. (See here, here, here, here, and here.) But does it really help to shout "profanity-laced accusations" while working oneself "into a rage" when there's a good chance the person is innocent (and legally are presumed to be)? Should that really be a routine part of police investigation?

There are alternatives to the Reid technique, but it's hard to blame officers for following their training. It's much harder, though, to understand why officers are still trained to behave that way.

MORE: An alert reader pointed out that Tod Robberson beat me to the punch on this topic yesterday at the Dallas Morning News Opinion Blog. Concluded Robberson:
These tactics reflect an outdated way of eliciting false confessions and justify why all such interrogations must be recorded. I don’t know what it is about some detectives, sheriffs and headstrong prosecutors who think that the goal is to win a confession and/or prosecution no matter what, and regardless of whether the person charged is guilty or not. That’s how Michael Morton wound up spending 25 years in prison for a murder he did not commit. That’s how Christopher Scott spent 12 years in prison for a murder he did not commit. Both faced these aggressive, brutal interrogation tactics by overly eager law enforcers who refused to look at the evidence first before charging ahead with their assumption of guilt.

I hope Lord wins her current lawsuit against Thompson, because it’ll send a message to law enforcers everywhere that these tactics have to stop.
AND MORE: From Robberson. AND MORE: Kevin Krause reports on a former Dallas homicide cop named Kim Sanders, a 30-year veteran, who testified for the plaintiff at the trial. Here's a notable excerpt:
Sanders testified that he reviewed evidence in the case and that the Burnside death looked like a self-inflicted accidental shooting or a suicide.

Sanders also said he was shocked by how Thompson treated Lord during her interrogation.
Thompson shouted accusations at Lord in a booming voice, using profanity and whipping himself into a rage. He defended his actions during the trial, saying he was using acceptable methods that he learned during training.

“This went beyond anything I’ve ever seen,” Sanders said during testimony.
He said you can’t intimidate someone into saying something, and he called it a “formula for a false confession.”

But Thompson said it was one of three interview techniques he learned from the Federal Law Enforcement Training Center.

Tuesday, January 14, 2014

'Poor Farms': On the historical conflation of poverty and criminality

At County magazine, Liz Carmack recently had a fascinating piece (Nov. 8) on "poor farms" in Texas, which for decades doubled as support systems for the indigent and punishment systems for low-level offenders. In Kaufman County, remarkably, the last residents didn't leave the poor farm until the 1970s.
Since then, the county has repurposed much of the land for other uses — the county’s library, emergency children’s shelter, appraisal district offices and courthouse annex. But Kaufman County kept the core 27 acres of the farm intact with what remain of its 19th and 20th century buildings, including residents’ living quarters, the farm superintendent’s house, barns, a silo, a well and pump house, a chapel, a jail, a hen house and several pieces of farming equipment. 

The poor farm received a Texas Historical Commission Subject Marker in 1997, which the Kaufman County Historical Commission dedicated a year later. Today, the site is one of the few county-owned poor farms in Texas.
The story offered up some history of which I was personally unaware:
Poor Farm Cemetery, Hallettsville, TX (source)
The hardships of the Civil War and concurrent demise of charitable organizations that served the indigent left many more needy Texans at war’s end. To help them, an 1869 addendum to the Texas Constitution charged the state’s counties with providing a Manual Labor Poor House “for taking care of, managing, employing and supplying the wants of its indigent and poor inhabitants.” It also specified that “all persons committing petty offences in the county may be committed to such Manual Labor Poor House, for correction and employment.”
 
Several Texas counties established poor farms as an efficient way to aid their indigent residents, who would live and work on the farms to support themselves. County inmates often worked off their sentences on the farms and were jailed there as well. 

A 1987 Texas Historical Commission Survey of county clerks revealed that at least 65 of the state’s 254 counties at one time had poor farms. According to the survey, most were in the state’s central, northern and eastern counties.
Fascinating the way "poor" and "criminal" were conflated back in the day, a notion that dated from 17th century "poor laws" in Elizabethan England. Outside of convicts, most poor farm residents were elderly and white. (With few exceptions, "Mexicans and blacks were simply told that they were not eligible for relief and would have to find assistance elsewhere," according to one historical account.) Poor farms were also used to house the infected during contagious epidemics. The flood of poor folk during the Great Depression and the enactment of national and state-level supports for the indigent elderly rendered poor farms either obsolete or mainly work farms for county jail inmates after the 1930s. A dark, grim history indeed. Amazing that the one in Kaufman County continued to operate into the 1970s.

See more detail from the Kaufman County Historical Commission. See also "The County Poor House System in Texas" from the Southwestern Historical Quarterly, Volume 93, July 1989 - April, 1990, and this website devoted to the topic.

'Want treatment for mental illness in Houston? Go to jail'

See the excellent story in the Texas Observer by Emily DePrang (Jan. 13) with the same title as this post. Here's a notable excerpt that pegs the lack of mental health treatment resources in the justice system to the state's failure to expand Medicaid under the Affordable Care Act, a factor this blog has previously lamented:

Deal with the Devil? DEA allegedly overlooked Sinaloa cartel drug smuggling for intel on rivals

Simultaneously shocking and also utterly unsurprising. According to a report by Business Insider:
An investigation by El Universal found that between the years 2000 and 2012, the U.S. government had an arrangement with Mexico's Sinaloa drug cartel that allowed the organization to smuggle billions of dollars of drugs while Sinaloa provided information on rival cartels.

Sinaloa, led by Joaquin "El Chapo" Guzman, supplies 80% of the drugs entering the Chicago area and has a presence in cities across the U.S.

There have long been allegations that Guzman, considered to be "the world’s most powerful drug trafficker," coordinates with American authorities.

But the El Universal investigation is the first to publish court documents that include corroborating testimony from a DEA agent and a Justice Department official.
See the full BI story for more details. My Spanish isn't good enough to closely parse the El Universal story, and the Google translate version is pretty raw, so I'm looking forward to followup reports. Certainly, it's not uncommon for law enforcement to cut deals with criminals for information. But this story alleges the US conspired with the Sinaloa cartel at the very highest levels. A few years ago, American intelligence officials were telling the press that Guzman and the Sinaloa cartel appeared to be "winning" the bloody feud with its rivals for control of smuggling routes into the U.S.. What they didn't say was that Sinaloa was "winning" because the US government was helping them!

MORE: From Forbes. AND: A rebuttal from the Washington Post. AND: Paul Kennedy adds his two cents.

Report: Providing counsel at bail hearings would lessen Harris County jail costs

A new report from the Texas Fair Defense Project makes the case for providing appointed counsel to indigent defendants at bail hearings to reduce unwarranted pretrial detention. Harris County, in particular, spends nearly a quarter-million dollars per day to lock up defendants who've not yet been convicted and are awaiting trial. Find TFDP's press release announcing the new publication below the jump.

Texas' review of faulty hair and fiber forensics underway

Jordan Smith at the Austin Chronicle has a brief story (Jan. 13) on the review of potentially faulty forensics in older cases using hair microscopy before the advent of DNA, a topic addressed at last week's quarterly Texas Forensic Science Commission. It opens:
The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.

Texas' planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers.

Many of the Texas' hair examiners were trained by the FBI, so the state review makes sense, according to the Innocence Project of Texas, which is among the stakeholders collaborating with the FSC on the review. Indeed, the FSC noted this in its most recent annual report. "The FBI has also indicated that it trained many microscopic hair analysts in state and local crime laboratories, including some laboratories in Texas," reads the report. "Of course, this does not necessarily mean that state and local analysts made similar [scientific] overstatements" as did the FBI analysts at issue in the federal review. Still, as it is with that review, Texas' inquiry will focus on older cases, because microscopic hair analysis was more common in the 1980s and 1990s, before the rise of DNA testing. ...
Twenty labs across the state do hair analysis, FSC general counsel Lynn Robitaille Garcia told the commissioners, including 12 Department of Public Safety labs and eight additional public labs (generally county or police department crime labs). The labs are currently in the process of going back and "identifying hair cases" to submit for possible review, she said. So far, four labs – including the Southwestern Institute of Forensic Sciences in Dallas and the Bexar County lab – have supplied lists of cases, she said, totaling "a few dozen" where "positive association" was made between a defendant and crime scene evidence. Garcia said a database review of appeal court decisions that mention hair analysis yielded a list of some 85 cases. Those cases will be sorted by jurisdiction and supplied to county prosecutors and to participating labs to help them cull through relevant records.
My colleague Nick Vilbas from the Innocence Project of Texas told the FSC that, so far, they've identified 20-25 names out of those 85 cases who've contacted IPOT in the past requesting help to prove their innocence, and they haven't finished vetting the list. Without exculpatory DNA evidence, there was little IPOT could do for those folks in the past. But between the FSC review and Texas' new junk science writ that became law September 1st, the landscape has changed. So there's a decent chance this undertaking may result in viable innocence claims and future exonerations, though right now the process remains in the early stages.

Between changes to the habeas corpus statute, the new focus on hair-and-fiber analysis and the ongoing arson review, Texas has lept to the forefront nationally among states confronting junk science that may have resulted in wrongful convictions. Not many years ago, it would have been hard to envision the day when one could say that with a straight face, but there it is.

See related Grits posts:

El Paso Sheriff still seeking rapist deputy, fugitive, ten years after flight

The El Paso County Sheriff has PR campaign dubbed "Manhunt Mondays" in which it seeks the public's help locating fugitives. This week the target is a former sheriff's deputy who's been on the lam for more than a decade. Reported the El Paso Times:
Peter Calzada
Peter Calzada, 54, has been missing since 2003 when he skipped out on his sentencing in a federal case.

Calzada and another former sheriff's deputy, Michael Duran, pled guilty to kidnapping a woman who was stranded and raping her while they were on duty in 1997.

Deputies have received numerous tips on Calzada's location since he went missing, but have been unable to catch him.

In 2009 it was reported that Calzada gained weight, grew his hair long and was teaching English deep in Mexico.

In 2012, a person called a tip that Calzada was in a Arizona airport, but quickly left after the person saw him.

There have even been sightings of Calzada in the Borderland area, but he has eluded capture despite being featured on Manhunt Monday every year.

Monday, January 13, 2014

Reality, not law, barrier to charging DWI defendants for blood tests

Harris County officials want to charge defendants for the cost of blood tests used to gather evidence against them in DWI cases, reported Kiah Collier at the Houston Chronicle (Jan. 13). "Bill Murphy, spokesman for the District Clerk's office, which assesses court fees, said there do not appear to be any laws on the books allowing or disallowing the collecting of fees for blood draws or other lab tests in criminal cases." Precinct 4 Commissioner Jack Cagle suggested the Legislature should pass a new law authorizing the charge.

But the Twitter feed of the Texas District and County Attorneys Association notifies us that this is "Already in law; see CCP Art. 42.12 Sec. 11(a)(19)," and indeed, that provision authorizes judges to require defendants to "[r]eimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense." It does seem like "analysis" of "raw materials" and "controlled substances" would get you there.

Another solution looking for a problem.

The real issue appears to be that the Harris County DA doesn't seek reimbursement. Reported Collier:
Criminal Court-at-Law Judge Sherman Ross, presiding judge for misdemeanor courts, said he never has gotten a recommendation from prosecutors to include the cost of blood draws in restitution orders. It is not a concept he would advocate for, he said, but it "doesn't sound unreasonable" and he would consider accepting a prosecutor's recommendation, assuming the defendant could pay for it.

"I don't think anybody's interested in ordering something that's simply uncollectable," he said. "I think it's part of the cost of doing business as far as the agencies are concerned, and if there was a way to do it without diminishing our effectiveness, then I think that decision should be made by the district attorney."
Ironically, decisions by the new DA Devon Carter are driving higher costs for DWI lab testing, Collier reported:
Last April, District Attorney Devon Anderson began enforcing "no refusal" traffic stops every day.

That decision and other factors mean the county toxicology lab's case load will continue to grow, officials said.

"We pride ourselves on becoming increasingly more efficient," crime lab Director Roger Kahn said, "but there comes a point when our responsibilities begin to exceed our capability and our capacity."
The reason DWI defendants aren't charged for blood tests isn't that the law won't allow it but that, in reality, the state already soaks DWI defendants (in addition to fines, probation fees and court costs they still have to pay their Driver Responsibility Surcharge) and the juice typically isn't worth the squeeze.

Hervey, DiMaio named to National Commission on Forensic Science

Judge Barbara Hervey of the Texas Court of Criminal Appeals and former Bexar County Medical Examiner Dr. Vincent DiMaio, chair of the Texas Forensic Science Commission, were among thirty people named to the newly minted National Commission on Forensic Science, as was Peter Neuefeld, co-founder of the national Innocence Project. According to a DOJ press release:
Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system.  The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

The commission is co-chaired by Deputy Attorney General James M. Cole and Under Secretary of Commerce for Standards and Technology and NIST Director Patrick D. Gallagher.  Nelson Santos, deputy assistant administrator for the Office of Forensic Sciences at the Drug Enforcement Administration, and John M. Butler, special assistant to the NIST director for forensic science, serve as vice-chairs....
“This latest and most impressive collaboration between the Department of Justice and the National Institute of Standards and Technology will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all,’” said John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy.
Creation of the commission doesn't go as far as the recommendation from a National Academy of Sciences' 2009 report to create a permanent National Institute of Forensic Technology to perform research and set standards. That report was highly critical of the non-science-based nature of many forensic disciplines.

Another appointee to the commission, Case Western law prof Paul Giannelli, has said that, "Forensic science has been a stepchild in the law enforcement community and an orphan in the scientific community." This new entity gives the issue higher profile, for sure, but it'll be a long time before we know if it represents a serious step toward strengthening the quality of forensics or will merely apply window dressing to a perception problem.

Disciplinary files from jail, probation office not admissable as 'business records' sans confrontation

In Smith v. State, the First Court of Appeals ruled in December (pdf) that disciplinary records of jail and prison inmates and probationers are not "business records" but testimonial evidence and the defendant must be allowed to cross-examine whoever created them under the US Constitution's Confrontation Clause. Harris County prosecutors entered disciplinary records into evidence from the probation department, the Harris County Jail and the Texas Youth Commission during the punishment phase of a murder trial and the trial judge allowed it over defense objections. The appellate court ordered a do-over on the trial's punishment phase. Opined the TDCAA case summary: "Ouch."

The ruling distinguishes between records that merely list top-line disciplinary actions taken by a correctional facility from "testimonial" statements characterizing the memories and opinions of particular COs and/or probation officers. Not groundbreaking stuff, but a relatively rare pro-defendant ruling from the First Court.

Autopsy report from ME indicted for making false statements under oath can't come into evidence unless she testifies, except it did

Via TDCAA, somehow I'd missed that a now-former assistant medical examiner in Harris County, Dr. Luisa Florez, had been indicted for making false statements under oath, apparently related to a loan application. (See coverage here.) Her husband has since been convicted and sent to federal prison "for conspiring to obtain approximately $1 million in disaster relief funds by fraudulent means." Florez's case has not yet reached its denouement.

The issue arose because a Harris County district judge allowed a report from an autopsy she performed to be entered into evidence in a murder trial (Lee v. State). "The jury was not made aware of the indictment, however, because the State chose to have another medical examiner, Dr. Robert Milton, relay the findings of Dr. Florez‘s report." The Fourteenth Court of Appeals ruled this was a Confrontation Clause violation, holding "that autopsy reports are testimonial and the defendant must be allowed to cross-examine the medical examiner who created them." (Read the opinion.)

However, the court held that the error was "harmless" because "ample additional evidence established appellant‘s guilt" and Dr. Milton's testimony "was mostly undisputed." Further, "although the autopsy report might have added credence to Dr. Milton‘s testimony that wounds caused by appellant‘s rifle, standing alone, could have caused complainant‘s death, that determination was not important to appellant‘s liability as a party." Though IANAL, their conclusion seems a bit odd to me since Dr. Milton's conclusions, which the court said were allowable, were based on Dr. Florez's report. But I'm never surprised when a Texas appellate court overlooks constitutional errors as "harmless" to uphold a conviction.

Who knows how many autopsies Dr. Florez performed? In the future, at least within the jurisdiction of the 14th Court of Appeals, her reports can't come into evidence unless the state puts her on the stand to testify, which given her indictment for making false statements under oath seems unlikely, at best. According to TDCAA's case summary, "Take from this case the lesson that maybe the State can get another expert to present testimony, but that will not allow bootstrapping a report otherwise inadmissible under the Confrontation Clause."

Costs of constant police surveillance plummet thanks to cell-phone tech

The cost of surveillance has plummeted in the era of cell-phone location tracking, reported Andy Greenberg at Forbes. His Jan. 9 article begins:
It’s no secret that the ability to track a cell phone has led to a sea change in law enforcement surveillance methods. But now a pair of researchers have actually put a number to the plummeting cost of that covert spying in the modern world: Tracking a cell phone’s location, they found, costs somewhere between 1.9% and .015 % of the price of tailing someone the old fashioned way.

In a paper published Thursday in the Yale Law Journal, privacy-focused researchers Ashkan Soltani and Kevin Bankston have calculated the per-hour cost to law enforcement of tracking a person’s location using every method from officers on foot to police-planted GPS devices to obtaining the suspect’s location from their cell carrier. The results show that the cost of 24/7 surveillance operations have been reduced from hundreds of dollars an hour to employ teams of agents to track individuals in shifts to just a few dollars or even just pennies to query AT&T or Sprint for the same location data. ...
With their study, the researchers intend to show that cell phone tracking, like GPS tracking, is so cheap that it enables surveillance on a massive scale. In fact, their paper deduces a “rule of thumb” from the Jones ruling and other lower-court rulings to determine when location tracking without a warrant should be considered unconstitutional: “If the new tracking technique is an order of magnitude less expensive than the previous technique, the technique violates expectations of privacy and runs afoul of the Fourth Amendment,” they write.

That means cell phone tracking, which is often even cheaper than the warrantless GPS tracking the Supreme Court ruled unconstitutional in Jones, require the same level of privacy regulations if not more, Soltani argues. “When it was physically impossible to track everyone at the same time, you didn’t need a law for it,” he says. “What we’re saying is that technology changes what’s possible, and as a result, we may need to add legal barriers to compensate for those changing technical barriers.”

Read Soltani and Bankston’s full paper here.

Sunday, January 12, 2014

Interview: Whitmire on Whitmire

Charles Kuffner has posted a 68-minute interview with Senate Criminal Justice Chairman John Whitmire. Go here to listen to the whole thing. Wrote Kuff, "Sen. Whitmire had a lot to say in the interview, so much so that I hardly had to ask any questions. He just got on a roll and went places that I wouldn’t have known to ask about if I’d been directing things." Whitmire opined on topics from the criminal justice system, adult and juvenile, to the budget, schools, park space, food banks, senate rules, and a variety of other subjects.

The Dean of the Texas Senate has a Democratic primary opponent, Damian Lacroix, for the first time in recent memory. Listen to Kuff's interview with him here. Lacroix has blasted Whitmire for his criminal-justice record in terms that frankly were uninformed and disingenuous. I don't always agree with Chairman Whitmire, but he's directly or indirectly responsible for most of Texas' criminal-justice reforms in recent years. Without him, there's zero chance Texas would have closed three prison units over the last two sessions.

As Texas' longest serving senator, a committee chairman, and Harris County's only senator on the budget conference committee last session, it'd be nuts for SD15 voters to replace John Whitmire with a rookie at this juncture. Judging from this interview, he appears to be taking the opposition seriously.