Saturday, December 16, 2017

Journalists failing to call out official lies in Austin police contract debate

Local, mainstream media coverage of the Austin police union contract - which was rejected Wednesday night after a dramatic, 8-hour special-called city-council meeting - has been disturbingly bad. People whom I've considered good reporters on other topics have written pablum-filled junk on this one. For the most part, journalists appeared to go out of their way to avoid reporting factual information when it was provided by advocates or movement leaders, and instead chose to report spin and outright falsehoods from the police union and (to a slightly lesser extent) police department management.

With the exception of Michael Barajas at the Texas Observer, most reporters leading up to the council vote portrayed opposition to the contract as coming from only a handful of critics, often suggesting Austin Justice Coalition's Chas Moore was the sole, vocal opponent.

The Austin Statesman at one point estimated that "several" activists opposed the contract, and after the council vote, a local TV station said "dozens of community members" opposed it. In reality 20 different organizations signed on against it - including Travis County Democratic Party precinct chairs voting unanimously to recommend rejecting it - and more than 220 people signed up to speak against the contract Wednesday night, with 54 police officers and their family members signed up for it, the Mayor announced at end of the meeting. (The total actually speaking was lower on both sides in the end because many people donated their time to others or had to leave before their name was called.)

Beyond simply downplaying the size of the movement, a lot of false information has been  propagated because reporters simply accept official sources uncritically and do not seek out alternative sources or views. Sometimes these official sources lie, but the reporters aren't performing even the most basic legwork to fact check those falsehoods.

To take the most immediate example, Chief Brian Manley and the police union have been saying - and the Statesman repeated the line as the top news about the contract - that up to 300 veteran officers could retire if the contract was rejected. These were official falsehoods being promoted as a scare tactic.

And now that the contract has been rejected? Reported KXAN-TV, police union president Ken Casaday said, “We’re expecting somewhere between 25 and 50 to leave.” So between 1/12 and 1/6 of the number he was estimating a week before. While KXAN reported the new, much smaller estimate, the headline did not not say, "Far fewer officers will retire than expected." Instead, they doubled down on the original falsehood with the scary headline, "Some APD officers already putting in for retirement after contract was stalled." Not one media outlet has called out police management or union officials on their earlier misrepresentations. Instead, they're collaborating in a spin campaign.

So, since we can't expect local reporters to do it, let's go ahead and answer the question, "Is 25-50 retirements significant?" It turns out, according to the annual report from the Austin police officer retirement system (p. 133), 56 officers retired in 2016, and 71 retired in 2015. So even minimalist reporting, checking the most basic facts about the topic in easily accessible public sources, would show that these numbers of retirements aren't really a big deal at all. Austin cops with enough years in to make them eligible for retirement make upwards of $120K per year, including overtime - among the highest paid in the nation. There aren't other jobs, anywhere, where they can make that much, so most will stay put.

Reporters should aspire to be more than stenographers. These are the sorts of failures by the journalism profession which, on the macro level, brought us Donald Trump: Quoting public figures without fact checking their comments, refusing to report factual information because it doesn't come from a preferred source (usually the government), and focusing on personalities instead of issues.

Austin journalists who've covered the police contract for the most part should be embarrassed. They never provided the public with a meaningful assessment of the issues at stake, despite ample documentation, numerous community meetings, public forums and other opportunities to cover them. A massive, city-wide debate has taken place on this topic over the last six months, and it has occurred almost entirely without the MSM playing any meaningful role.

You could read everything written in the MSM about the contract before Wednesday's vote and have at most a minimalist understanding of the issues contract critics raised. Only one Statesman article, in October, even listed the eight accountability measures demanded by AJC and its allies. From that story, here's the most detailed MSM discussion Austinites ever got of the policy questions that ultimately caused the police-union contract to be shot down:
The resolution suggested, as Austin activists have for months, eight different reforms to the police contract: reforming the department’s 180-day rule, which limits the amount of time the police chief has to discipline officers; eliminating automatically downgraded suspensions; giving subpoena power to current oversight bodies; allowing misconduct to be considered equitably in promotions; allowing citizens to make complaints online or over the phone; allow the police monitor to initiate investigations even without a citizen complaint; stop permanently sealing records related to police misconduct; and releasing records without removing content.
And I should give those reporters credit: No one else except Barajas ever even listed them. However, each of these amounts to a complex debate into which the general public cannot meaningfully enter without much more detail and context than what's being provided. No media outlet ever discussed them at length, much less linked them thematically to the various cases which inspired the recommendations in the first place. Police union positions, however, were quoted over and over again.

As a result, Statesman readers, and consumers of all other local MSM, were essentially shut out of the real conversation. Instead, the most important debates took place online, in hundreds of one-on-one conversations behind the scenes, and in numerous public forums to which our journalist friends had access, but of which they chose not to avail themselves. Most reporters took the lazy way out, filling their stories with quotes from the police union and the city and using their authority to marginalize critics.

At times, it almost seemed intentional. More than a few of these reporters have shown they're better than that in other settings. In this instance, though, the local Austin press corps chose to serve as shills and propagandists for the powers-that-be, missing the story about an eruption of public discontent over a major public policy issue until after the fact. It was a sad and disappointing display.

Thursday, December 14, 2017

Uncharted territory: Rejected police union contract leaves many open questions

The Austin City Council last night unanimously voted against accepting a police-union contract - one that took almost 8 months to negotiate and was approved by 85% of union members - after more than 150 reform supporters, including your correspondent, spoke at a special called meeting to oppose the current version and demand accountability reforms. (More than 220 people signed up to speak against the contract, but the hearing lasted seven hours, late into the evening, and many people had to go home.) See coverage from:
These accounts entirely underestimate the import of this vote. Austin's City Council hasn't voted against a union-ratified police contract, ever. Nor have any other American city rejected a union contract on accountability grounds, as far as I can tell. (In Portland, when civil rights advocates protested their contract, they were pepper sprayed and sent on their way.)

Crowd who stayed for the vote at end of a 7-hour meeting
The vote creates, for the first time in two decades, an opportunity to improve police oversight in Austin, which was ineffective at best and a public embarrassment at worst. None of the local coverage has effectively plumbed the depths of the issues at stake, typically portraying one young activist - the Austin Justice Coalition's Chas Moore - as some lone-wolf critic instead of the voice of a massive, city-wide accountability movement.

Local advocates led by the Austin Justice Coalition (conflict alert: my wife Kathy Mitchell was among the campaign's principle organizers) attended every negotiation session, researched the issues thoroughly before engaging, organized their asses off in dozens of various forums, meetings, and events, and arrived at the denouement last night loaded for bear. 

The Austin Police Association and city management presented a united front in defense of the contract, but struggled to defend the pricetag -- more than $80 million over five years to give raises and bonuses to a police force that's already the highest paid in the state. A core group of council members clearly were disturbed by the lack of accountability measures demanded by the community. (AJC had proposed eight measures; one was fully implemented, one partially, the others were ignored.) The entire council was unhappy that the exorbitant cost of the contract would squeeze out spending in all other areas of the budget for the next five years.

That mix of advocates' frustration with police abuse, coupled with Council's frustration at having so little money to keep the pools open or even add new police officers, tipped the vote away from the deal. 

The union had said that if the council rejected the contract they would not come back to the negotiating table for a year. But there's too much money at stake so I don't see that happening. Their members would lose a lot of goodies, including sweet overtime deals for court appearances

The council's motion last night gave city negotiators unto March 22, 2018 to come back with an amended agreement that was cheaper and included more accountability reforms. And with that unanimous vote, the city, the union, and police reformers move into uncharted territory.

Wednesday, December 13, 2017

A brief primer on forensic hypnosis

In the November Reasonably Suspicious podcast, my colleague Amanda Marzullo and I discussed a capital case out of Dallas - Ex Parte Flores - in which the Dallas PD used hypnosis on the primary witness, who ultimately switched her story. She at first said a long-haired white man was the perpetrator before identifying a short-haired Hispanic man (Mr. Flores) at trial.

On the podcast, we marveled that DPD had access to an on-staff hypnotist, wondering whether DPD might also consult Tarot card experts or palm readers? But Grits underestimated the level of official status that "forensic hypnosis" has achieved in Texas, by quite a bit! I'm putting these links up mostly for my own purposes, but thought Grits readers may also be interested, so here you go:

For starters, to be clear, most states (28) do not allow hypnosis-influenced testimony to be admitted into evidence at all. Of the states that do, Texas has over the years had one of the more robust programs. The Texas Court of Criminal Appeals approved the use of hypnosis in a case called Zani v. State from 1988, the year after  the Texas Legislature via SB 992 ordered what was then the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) to create an "Investigative Hypnosis certificate." (See a 2015 synopsis of their 50-hour training course, and here's the relevant section of the Occupations Code.)

The CCA reaffirmed the use of hypnotically induced testimony in a 2004 case, State v. Medrano.

The best journalism on this topic that your correspondent has seen came from Andy East at Reporting Texas in December 2014, in a story I'd missed when it came out. According to Mr. East:
Texas and 21 other states allow court testimony by witnesses who previously were hypnotized to enhance their memories, according to a study by Steven Lynn, a professor of psychology at Binghamton University in New York. The Texas Rangers have used hypnosis 66 times since 2009, according to the state Department of Public Safety. Most law enforcement agencies in Texas don’t keep statistics on hypnosis.
Further:
Investigative hypnotists in Texas must be certified by the Texas Commission on Law Enforcement. That requires taking a 50-hour course and passing an exam. Since licensing was mandated in 1987, commission records show that 858 law enforcement officers have been certified . Four officers have been certified in the past two years. In October 2013, the commission began requiring licensed investigative hypnotists to take a refresher course every two years.
According to an article by a former DPS trooper and prominent forensic hypnotist (touting the "Texas model" and outlining a "Road Map to Admissibility" for hypnotically enhanced witness testimony), some 80 police officers participated in the first TCLEOSE training once the official certification was created.

There is actually a Texas Association of Investigative Hypnosis, and regrettably we just missed their annual conference! That would have been a hoot. Here's a website of a prominent practitioner and former DPS trooper.

American Public Media in 2016 took on the story from a national perspective. They warned that:
Especially if done poorly, the process - basically a means of trying to induce a more focused state of mind — can plant memories or skew existing memories. It can also make witnesses or victims more certain of what they saw, even if the recollections turn out to be false. Today, hypnosis is a rare feature in police work and even rarer in the courtroom, partly because so many courts have ruled "hypnotically induced" testimony inadmissible. The process is viewed as roughly on par with another quasi-scientific investigative tool, the polygraph test.
They noted that, "Minnesota was one of the first to restrict such testimony when the state Supreme Court ruled in State v. Mack, in 1980, to bar testimony recalled for the first time under hypnosis." Here's a Candadian case from 2007 declaring post-hypnosis witness identifications inadmissible.

Over the years, scientific support for the technique has eroded significantly. These days, a 2016 academic analysis concluded, "Scientific research ... suggests, fairly overwhelmingly, that hypnosis does not reliably increase the accuracy of eyewitness recall and recognition; rather, the research shows that when effects do occur, hypnosis can produce an increase in false, distorted, or manufactured memories."

Further, said the same source: "it is not only the distortion of memory which is at issue, but also the sincerity with which people believe their distorted memories to be accurate. Because hypnotically recovered memories are remembered in such detail and with such emotion, subjects often develop and false confidence in it."

According to this academic analysis (FN 35), there are at least five DNA exonerees who were convicted after information about hypnosis-induced testimony was concealed from their juries!

DOJ manual for US Attorneys informs practitioners, "The information obtained from a person while in a hypnotic trance cannot be assumed to be accurate."

Memory expert Elizabeth Loftus has shown that hypnosis can be used to implant memories of things that never occurred.

Most academic papers I've found on forensic hypnosis are behind paywalls. The abstract to this 2015 academic paper suggests that hypnosis poses more risks of error than other memory recall methods. Another academic paper suggested more errors occur from hypnosis when the contents of memories are very emotional.

As far as Grits can tell, this is junk science at its worst. In Zani, ironically, the CCA already understood that proponent's claims had been seriously challenged: The majority opinion observed that:
Proponents of the use of hypnosis to restore a crime victim's memory to facilitate his trial testimony, most notable of whom is Dr. Martin Reiser, a psychologist and forensic hypnotist with the Los Angeles Police Department, advocate a "videotape recorder" theory of human memory. By this theory the human mind is thought to receive and store in the subconscious every bit of data taken in by the senses. Hypnosis is regarded as a legitimate vehicle for tapping the subconscious to retrieve data recorded therein which has proven to be inaccessible to the subject's conscious memory. "The assumption, however, that a process analogous to a multichannel videotape recorder inside the head records all sensory impressions and stores them in their pristine form indefinitely is not consistent with research findings or with current theories of memory." 
Today, thanks to research with fMRIs and other modern neuroscience advancements, we know conclusively that the "videotape recorder" theory is hoakum. It can't even be said to be a disputed question anymore. And that's the main basis upon which proponents rested their arguments for using hypnosis on witnesses.

It's hard to understand how "forensic hypnosis" is still a thing in 2017. Further evidence, if any were needed, that judges in general make rotten forensic gatekeepers. This is just embarrassing.

Tuesday, December 12, 2017

TX DPS diverting focus to immigration enforcement, and other stories

Grits has been neglecting this channel a bit - family obligations have kept me as busy as a one-legged man in an ass kicking contest. But here are a few odds and ends that merit readers' attention while mine is focused elsewhere:

DPS now engaging in immigration enforcement
Texas DPS is calling the Border Patrol to the scene of traffic stops to pick up suspected illegal immigrants, reported The Intercept, which tracked what happened to the families in several of these cases. This amounts to explicitly diverting state-level law enforcement resources to fulfill a federal immigration function, reducing resources available to fight crime.

Dallas pilots non-cop-led teams on mental-health calls
Dallas is launching a pilot program to send a team led by medical personnel instead of  police officers to most mental health calls. "Under the pilot program, three people would be dispatched to each mental health call: a paramedic, an officer and a behavioral health professional."

Suspending drivers licenses for debt a policy flop
Texas is one of 43 states that suspend drivers licenses for unpaid court debts, reported the Marshall Project. Your correspondent is especially excited to see how the new policy in California rolls out, where the CA Legislature ended license-suspensions for nonpayment earlier this year. IMO Texas should move in that direction.

MSM belatedly notices bipartisan #cjreform in Texas
The Houston Chronicle has discovered that the Right on Crime campaign at the Texas Public Policy Foundation exists, but thinks they've been "quiet" until now. Happy to see RoC getting in-state attention. But they've hardly been quiet, even if the Texas MSM hasn't been paying attention.

Law-of-parties debate heating up
Debates over the "law of parties" are heating up as a result of the Jeff-Wood capital-murder case, with the prosecutor from the case calling for his sentence to be commuted, reported the Texas Tribune. The law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. American law is an outlier on this one.

Jury selection critiques
Houston law prof and Grits contributing writer Sandra Guerra Thompson has posted an older article on SSRN critiquing jury selection procedures in the context of Miller El v. Texas. Meanwhile, Brittany Deitch of Harvard Law has a new article out critiquing jury selection procedures arguing that "that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial. Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power."

'Sources of Contamination in Lineup Identifications'
In our November Reasonably Suspicious podcast, Amanda Marzullo and I discussed a capital case out of Dallas in which an eyewitness was subjected to hypnosis, after which she identified a short-haired Latino defendant as the perpetrator of a crime when she'd originally said a long-haired white man did it. Grits couldn't help but think of that case when reading this short article on "Sources of Contamination in Lineup Identifications." It was almost a textbook violation of best practices designed to prevent false identifications.

Cops' views on bodycams
What do police officers think about when they should and shouldn't be required to activate their bodycams? A new academic paper asked a bunch of them and reported the results.

Changes to Crime Victimization Survey create headaches
The feds have so radically altered the national Crime Victimization Survey that it's no longer comparable to data from the older surveys, which poses a major dilemma for researchers and criminologists who rely on this instrument. Unlike changes to the Uniform Crime Reports, though, where 70 percent of the data tables were simply eliminated by the Trump Administration, these changes have been in the works for a while and are supposed to provide better data in the long term. But in the near term, the inability to compare the results to past years surveys is a problem.

Monday, December 04, 2017

CCA: Parole board cannot be made to follow statutes

What a difference a year makes. In 2016, the Texas Court of Criminal Appeals unanimously ruled in Ex Parte Antonio Sepeda that habeas corpus writs were the "proper remedy" to compel the Texas Board of Pardons and Parole to comply with state statutes. Pero, no mas.

Now, five members of a sharply split court have decided to "disavow" that decision in Ex Parte Morris Johnson II, leaving no viable enforcement mechanism available when the parole board ignores its statutory duties.

Judge Elsa Alcala in a dissent summed up the import of this change: "Can the parole board disregard applicable statutes without any judicial oversight?," she asked rhetorically in the opening lines to her opinion before answering her own question: "After today's majority opinion, the answer to this question is 'Yes.'"

Judges Walker and Richardson filed a separate dissent suggesting a writ of mandamus was the right legal vehicle rather than a habeas corpus writ. That opinion details the argument that the Board has a clear "ministerial duty" to consider certain parole applications because of mandatory statutory procedure requirements. (Mandamus/habeas would not be appropriate, all agreed, if exercised in an area where the board has independent discretion over a decision, but four judges believed they could be obligated to comply with statutory duties.) Judge Newell dissented without giving a reason.

The majority opinion represented the views of the three members of the Government-Always-Wins faction, plus Judges Keel and Yeary to get to five. Two GAW members, Keasler and Hervey, offered a concurrence suggesting that the parole board could resolve the immediate issue itself without the court forcing it. They contended that the failure to consider the Mr. Johnson's parole application as envisioned by the statute fell within the board's discretion and did not implicate its "ministerial duties."

The details of the case were highly technical, involving a defendant with multiple concurrent and consecutive sentences and a parole board policy which delays when a second "consecutive" sentence starts for purposes of how long a "concurrent" sentence must run.

But the bigger question involved whether the parole board may be legally constrained by statutes in a way that's enforceable through the courts, or whether they are, in essence, above the law. For now, they remain above the law, at least as far as the state courts are concerned.

Friday, December 01, 2017

What next after TJJD's Gainesville scandal?

In the wake of recent sex-abuse allegations at the Gainesville State School, the Dallas Morning News editorial board recommended closing Texas' five remaining youth prisons. But they didn't really address what should happen with the inmates there or how the juvenile-justice system should be structured in the aftermath of youth prison closures.

For more detailed thoughts on that, check out this GFB post from several days after the story broke anticipating that recommendation and also what might lie beyond.

In that vein, yesterday, four liberal groups called for the creation of a joint House-Senate legislative committee to create a plan to close Texas' remaining youth prisons and utilizing alternatives to secure lockups including TJJD halfway houses located closer to urban areas. Grits has no problem with the policies they're suggesting but am not certain a joint-legislative committee is the way to go. For starters, that would require that Dan Patrick and Joe Straus to both assent, and presently I doubt those men could agree on what to order for breakfast. Moreover, it feels to me like it's already fairly obvious what needs to be done.

After the Texas Youth Commission sex scandals put the agency into conservatorship in 2007, the Legislature commissioned a blue-ribbon panel to recommend how to transform the system. They suggested shifting to the "Missouri model" where youth offenders are housed in smaller facilities (fewer than 48 beds) closer to urban areas where more treatment and mental health services are available. That goal has been partially achieved, but the Gainesville episode shows that youth left in those few remaining large facilities are still at risk.

All this to say, the state has a long history here and most people involved understand in broad strokes what needs to be done. State leaders just need to muster the political will, and money, to finish the job.

MORE/TEASER: This week Grits interviewed Brandi Grissom-Swicegood on the Gainesville State School scandals for the December episode of our Reasonably Suspicious podcast. We discussed similarities and differences to the TYC episode and where state leaders may go from here. As veterans of the 2007 episode, we shared the same sense of deja vu, and exasperation, that such similar problems had recurred. And we talked about how to prevent such episodes in the future instead of merely document and prosecute them after the fact. Look for an excerpt of our conversation in the main Reasonably Suspicious podcast for December, then Grits will post the full interview online soon thereafter. Brandi just left her job as Austin Bureau Chief of the Dallas Morning News to pursue a career as a professional triathlete, and this was her last story. So it was fun to get to interview her on her way out as she reflected on her career reporting on the capitol, in addition to discussing all this juvenile justice stuff. Coming soon! (And thanks for doing that, Brandi, that was a lot of fun.)