Tuesday, February 20, 2018

Podcast: Texas DA primaries, Court of Criminal Appeals races, and much more

Check out the February 2018 episode of Just Liberty's Reasonably Suspicious podcast, featuring discussions of Texas District Attorney and Court of Criminal Appeals primary races, Just Liberty's campaign to install justice reform in party political platforms, how Texas' law about driving on the shoulder is similar to the NFL's debate over what is a catch, and much more. You can listen to the podcast here:

In this episode you'll find:

Top Stories
  • Competitive Texas District Attorney primaries
  • Texas Court of Criminal Appeals primary races
  • Just Liberty's campaign to put #cjreform into party platforms
Home Court Advantage
  • Court of Criminal Appeals considers pretext stops #DezCaughtIt
  • Victim of prosecutor misconduct denied relief at 5th Circuit
Errors and Updates
  • Harris County loses bail litigation
  • TDCJ settles heat litigation
  • Management shakeup at Texas Department of Juvenile Justice
The Last Hurrah
  • Juvenile probationers in Harris County overincarcerated
  • TDCJ wage hikes create problems for youth prison employee turnover
  • Fort Worth and Austin opted out of Great Texas Warrant Roundup
Subscribe via  iTunesGoogle PlayYouTube, or SoundCloud. And find a full transcript of the podcast after the jump.

Februrary 2018 Reasonably Suspicious podcast featuring co-hosts Scott Henson and Amanda Marzullo.

Amanda Marzullo: Hi, I'm Amanda Marzullo. A blogger in Laredo known as Lagordiloca, which roughly translates to fat, crazy lady, has been charged with a third degree felony for reporting "information that has not been made public with the intent to obtain a benefit" after she posted the names of a suicide victim and a person who died in a car accident online. Prosecutors say the benefit she allegedly sought was more Facebook followers. So, Scott, what do you think?

Scott Henson: You know, it's been a long time since I've worked as a journalist. But from my recollection, the entire job was reporting information that had not been made public. The only reason you did it was for the benefit of a paycheck. I mean, when you report information that's already been made public, that means you've been scooped. Kind of an odd thing, isn't it?

Amanda Marzullo: Yeah, no. They're basically saying that journalism is illegal.

Scott Henson: Right. They don't want journalists, they want stenographers for the government.

Hello boys and girls. Welcome to the February 2018 edition of the Reasonably Suspicious Podcast. Covering Texas Criminal Justice, Politics, and Policy. I'm Scott Henson, Policy Director at Just Liberty. Here today with our good friend Amanda Marzullo, whose day job is Executive Director at Texas Defender Service. Mandy, what are you looking forward to on the Podcast today?

Amanda Marzullo: Actually, it's our top story. I'm looking forward to talking about some upcoming elections.

Scott Henson: Me, too. Let's get right to it.

Amanda Marzullo: Okay. Texas Primary Elections are coming up on March 6. There are several District Attorney Contest and couple of Court of Criminal Appeals races, of which everyone should be aware. In Dallas and San Antonio, the action is in the Democratic Primary. Big D Democrats are choosing who will oppose the Republican Incumbent Faith Johnson, who was appointed by Governor Abbott.

Meanwhile, in San Antonio, Democratic Incumbent Nico LaHood faces a strong challenge in a race that has become combative and increasingly negative with LaHood lashing out at critics and constituents alike. So, Scott, what do you make of these races?

Scott Henson: Well, these are the two highest profile DA races in the state, no doubt. In Dallas what's fascinating to me is for the first time, in my adult lifetime for sure, we're seeing an election where two candidates are competing to see who can be the most reform minded. Who's the most reform minded DA.  That's extraordinary and frankly even Faith Johnson, the Republican in Dallas, has made a lot of noise and movement toward some of these reform angles. So the debate at the Dallas DAs race being so reform oriented, I think, is fascinating.

With Nico LaHood, this is an odd race because it's less probably about reform or any sort of typical issues than this very odd man who is the incumbent. He's being attacked, not necessarily for issues around the DA's Office, but about being against Muslim immigration and being against people having their children vaccinated. Some of these weird issues that he's brought into this debate of sort of isolated him within the Democratic Party. Then, he's made some enemies in the Defense Bar in San Antonio, too. That's where his strong challenge has come from.

Meanwhile, Texans should be aware of a few other important Prosecutor races. In McLennan County, DA Able Reyna faces re-election at a time when cases from the Twin Peaks Biker Massacre are falling apart. With his office facing most of the blame for Grandstanding and overreach.

In Victoria County, the daughter of a former DA is running against the incumbent on a reform agenda. Chastising him for a failed policy of taking every first offense DWI case to trial. Mandy, what do you think about these races?

Amanda Marzullo: I think these two cases are important to watch because I think they're a big test on voters controlling Prosecutors who have gone too far. So in McLennan County, that is a very strange situation.  Our listeners will remember the Twin Peaks biker massacre was a situation where they rounded up over a hundred people, almost two hundred people who were at the scene of a crime and charged them with a felony.  Many of them lingered in jail for several months, which presumably lost their job, it had huge economic effects. They have yet to get a single conviction, three years later.

Scott Henson: Not only have they not gotten a single conviction, but the DA's Office is dropping out of cases. They tried to get the Attorney General's Office to take them over. The Attorney General's Office said no. So, it's all a complete mess.  It's fascinating that it's all come to a head right before the Primary. Probably the worst possible time for Abel Reyna, but that's what it is.

Amanda Marzullo: Then, when it comes to Victoria County, you're dealing with a policy that would generate a huge backlog. Taking every single case to trial is an incredible demand on the system.

Scott Henson: It apparently was a complete catastrophe. There's always been this sort of fantasy laid out among the defense bar that, oh well, if we took every case to trial, it would shut the system down. Well, ironically, the Prosecutor here tried that. He tried to take every case to trial.

Amanda Marzullo: Not every case, just the DWIs.

Scott Henson: Just the DWIs. Two years after he's into the policy, apparently their courts are still completely overwhelmed. It's still causing problems. So, you're right. These are examples of going after Prosecutor overreach in a very specific way that's kind of unusual.

Amanda Marzullo: Yeah, so we'll see what happens.

In Denton County, challenger Brent Bowen says the reputation of incumbent Paul Johnson's office has been marred by lawsuits and misconduct. In Tyler, where the DA is not running for re-election, the Smith County District Attorney's Office released an audit that amounted to an opposition research file on one candidate while the sitting DA supported the other. The targeted of the information released, Jacob Putman had complained on the campaign trail of, "A good old boys club in Smith County for whom it matters more about who you know than what you did." So, Scott, what do you make of these two cases?

Scott Henson: Smith County is actually my home county. I grew up in Tyler. Mr. Putman is not the first to say that there's a good old boys club there. Or that certain attorneys may get better treatment than others. These have been allegations that have swirled around Smith County Criminal Justice for decades. Really, what's interesting here is that it's the first time that those issues are making their way into a DA race. So, as such, you're kind of not surprised to see the DA's Office jumping into the race and trying to put their thumb on the scale. We'll see what happens.  Tyler's a very insular place and Mr. Putman is a brave man to take that stance.

On the other side of the coin, a couple of the other DA races and GOP Primaries are being fought along a more traditional axis. In Galveston, Jack Roady faces a primary challenger accusing the incumbent of being soft on crime.  In Walker County, the county seat of which is Huntsville. The First Assistant of incumbent David Weeks, is battling it out with a civil attorney whose supporters say the DA's Office isn't tough enough on DWI.  So, Mandy. What about these races caught your eye?

Amanda Marzullo: Well, the Walker County case in particular is catching my eye because of the focus on DWIs. As you noted in our discussions leading up to this, the Walker County position on DWI is probably driven by the Driver Responsibility Surcharge.  Which listeners will remember, it is a non-waivable surcharge that they put on your Driver's License if you have certain offenses. In the case of DWIs, it's fairly hefty. It's $1,500.00.

Scott Henson: Per year for three years, in fact.

Amanda Marzullo: Yeah. So that is an incredible sum, particularly in some areas of the state where incomes are low. So it's understandable that defendants would seek pleas deals that would be to a different offense and the Prosecutors might agree to it, if the circumstances merited it.

Scott Henson: Right. This has come up in the Legislature in recent years. One of the reasons the Mothers Against Drunk Driving finally came out for alternatives to the Driver Responsibility Surcharge was that there's pretty strong evidence that quite a few District Attorney's around the state are pleading some of these DWI cases to things like reckless driving, or blocking a roadway, or things like that.  So that the person will not have to get this surcharge. It has been intentional, and it had been cited as a reason why DWI convictions have declined in Texas significantly, even as the number of arrests have stayed about the same.  This is about the Driver Responsibility Surcharge creating such problems for the courts in so many other ways that the DAs just decide, hey it's not worth the hassle and I know that person is never gonna be able to pay that $1,500.00. It's just going to cause them to not have a Driver's License and be-

Amanda Marzullo: Probably end up back in front of them under a different offense.

Scott Henson: That's exactly right. So that is what that's about, it's unfortunate to see that office being attacked as soft on crime for that policy. That's actually a pretty pragmatic policy and it's unfortunate that that's the terms of debate on that.

Amanda Marzullo: I hope it will change.

Meanwhile, there are a couple of competitive Criminal Appeals races in the GOP Primary. Presiding Judge Sharon Keller faces a strong challenge from Justice David Britches from the Fifth Court of Appeals. There's a three way race for an open seat to replace Judge Elsa Alcala. Judge Barbera Hervey ran unopposed. So, Scott. What stands out to you about these races?

Scott Henson: First of all, let's just say for the record, how much are we going to miss Elsa Alcala? I mean, oh my gosh, she has been wonderful. She has been a bright shining star on the Court. For someone who's only been in ... I guess she was appointed and then had one full term.

Amanda Marzullo: She was a District Court Judge before joining the court.

Scott Henson: That's right. Well, she was on the First Court of Appeals in Houston before she came here.

Amanda Marzullo: Okay.

Scott Henson: So, she went District Court, Court of Appeals, then Court of Criminal Appeals. But she's been a bright star and it's really sad to see her go. Many of her dissents wound up being essentially US Supreme Court majority opinion fodder, wwhere she dissented in Texas cases and the Supreme Court ended up siding with her. That's happen a number of times now. So thank heavens for her and I'm sorry to see her go.

Amanda Marzullo: Yeah. No, we will miss you Elsa Alcala.

Scott Henson: Among the races here, the Sharon Keller race is the one that has the potential to be a huge blockbuster. We are in this weird time where there's an incredible hostility toward incumbents. We've seen in these Court of Criminal Appeal races in the past few cycles, that because these are such low information races where voters know almost nothing about any of these people. They kind of will just vote for anybody and anything goes. The people who got into the run-offs a couple of years ago. Or people that didn't even run real campaigns necessarily sometimes. Or who were not really engaged. All of a sudden, they're serious players.

So, having a sitting Appellate Court Judge running against her is dangerous. Who knows that she's been there 24 years. The odds are she'll make it, but if she were to lose, that would be a huge change on the Court. She's sort of the intellectual leader of that Government-Always-Wins faction and if she goes, that will change the dynamic on the Court quite a lot.

Amanda Marzullo: As soon as the Primaries are over, Just Liberty supporters will be flocking to their Precinct Conventions aiming to get Criminal Justice reform planks into the platforms of both political parties. The group even has a little jingle promoting the campaign performed by some of the same artists who did our original Podcast music. Let's give it a listen.

Amanda Marzullo: So, Scott. Tell us about Just Liberty's campaign. What do you hope to accomplish?

Scott Henson: Our goal here is to get substantial Criminal Justice Reform planks into both party platforms. The way this is done is through the process of participating in Party Conventions. Staring with Precinct Conventions right after the Party Primary. Most people have never participated in these processes unless you're a real Party insider. Or somebody who works in Politics for a living. But anyone who votes in the Primary can participate in their Precinct Convention and potentially become a Delegate to their County Convention or even go up to the State Convention. At these Precinct Conventions, right after the Primary election, they will get an opportunity to propose resolutions to change the Party platform. Just Liberty has rolled out resolutions related to reducing incarceration in the Adult System, closing Youth Prisons and shifting to community supervision, on indigent defense, on limiting Police powers to arrest for Class C misdemeanors. So, folks who are interested in Criminal Justice Reform can pick which ones of these they're interested in, take these to their Precinct Convention, and we're gonna try and have a grass roots efforts to push all of this into the Party platforms.

Amanda Marzullo: Sounds exciting. How do people participate?

Scott Henson: If you're a Democrat, on the night of the Primary, you simply go back to wherever you voted. There will be a Precinct Convention held there at 7:15 the night of the Primary election. In most counties, you do the exact same thing on the Republican side. However, there's a slight twist and this makes it a little more complicated. In some counties, they let them do it in different ways, some counties will have their Precinct Convention the day of their County Convention three weeks after the vote. So if you want to know how to participate, go sign up on our list at justliberty.org. As soon as that information about which Counties have their Precinct Conventions, when on the Republican side, we'll be getting that to everyone on our list everything they need to participate.

Amanda Marzullo: Okay, exciting. So stay tuned.

Scott Henson: That's right.

Amanda Marzullo: Now we're moving on to a game that we call home court advantage. During which, we discuss some of the most important decisions in the Lone Star State. In January, the Texas Court of Criminal Appeals issued a divided ruling. Finding that the Police Officer did not have probable cause to stop a driver whose wheels touched the fog line delineating the shoulder of the road.  Three TCCA Judges dissented with presiding Judge Sharon Keller offering a hair splitting defense of the Officer's decision to conduct a stop. The result of the decision was the suppression of drug evidence found when the car was searched. So, Scott, who gains an advantage based on this ruling and why?

Scott Henson: Really, I think all Texas drivers gain an advantage. What this ruling found was that there has to be some actual, real, probable cause to make a traffic stop. Ever since the Supreme Court Case called Whren vs. United States back in the 90's, what's called a pretext stop often in drug cases, has been basically allowed. Something that the courts have been okay with. That means that maybe the real reason that you're stopping them is you suspect they might have drugs, but you're gonna use some traffic offense or something, in this case, driving on the shoulder, as an excuse to pull them over. The courts over the years have increasingly lowered the bar and said okay, there doesn't have to be much to the original stop. The pretext is fine. Well, we've now gotten to the point where this is saying, okay, can it be completely bogus? Can it just be fake?

Where Judge Keller's opinion said that the reason there might be probable cause is that it was possible that the shadow at one split second may have touched the inside edge of the fog line, but you couldn't really tell. It's a very hair splitting defense. It was fascinating.

On my blog ... This case came out right before the Super Bowl. I made the joke that this basically was essentially similar to the, what is a catch issue in the NFL #DezCaughtIt. This hairsplitting thing where, do you have to go all the way over the line? Do you have to be in the shoulder? Or do you just have to touch the line? Or what is it?

All the hairsplitting issues that you can bring to that potentially is kind of similar and it's almost just as confusing. The majority on the court basically said, look we're gonna use common sense. We're not gonna just go way out of our way to say all stops are okay.  But three Judges dissented on this. There were 13 Judges, all told, that ruled on this case. The only three who wanted to side with the Officer and approve the stop on the Court of Criminal Appeals. So this shows how important these CCA races are because we have Judges on there who are not necessarily sort of within the mainstream with the rest of the Judiciary.

Amanda Marzullo: Good point.

Scott Henson: Back in July, Mandy and I discussed the case of George Alvarez, a Brownsville teenager who was framed for assaulting a Police Officer after Law Enforcement withheld video showing he was the real victim. But a three Judge panel of the Fifth Circuit Court of Appeals ruled that because Alvarez entered into a guilty plea, he's not entitled to damages for his wrongful conviction. The case will now be heard on en banc by the full Fifth Circuit.  So, Mandy. What are the implications to the Fifth Circuits ruling? Who gains an advantage if the decision stands?

Amanda Marzullo: The implications of the ruling can be fairly sweeping, in terms of the Constitutional context because over ninety percent of all criminal cases are resolved with a guilty plea. That said, in Texas, we have the Michael Morton Act, which does clarify that this information needs to be disclosed to the defense as soon as possible.

Scott Henson: Right. This case was actually before the Michael Morton Act was implemented.

Amanda Marzullo: Yeah, so it didn't apply here, so it won't necessarily have an implication for court operations. Now, it could affect to whether someone is entitled to relief. Or if they're entitled to damages as poor Mr. Alvarez apparently has not received yet.

Scott Henson: That's right. You told me that there was a split among the Circuits on this. That this is possibly something we'll see go to the Supreme Court.

Amanda Marzullo: Yeah. This isn't an issue that the U.S. Supreme Court has addressed yet. There are decision in both directions. So, we'll see. It could be well primed.

Next up, our segments Errors and Updates.  We have no errors to report this month that we are aware of. But we have several important updates.

Scott Henson: First, the Fifth Circuit Court of Appeals ruled against Terrace County on most aspects of it's Bail policies. Agreeing with the lower court that past practices were unconstitutional. The county's only win, misdemeanor defendants can be held up to 48 hours as opposed to 24 as Judge Lee Rosenthaw's order had put it. It's unclear precisely how this ruling might impact litigation in Dallas or Bail Policies in other counties. We'll return to this topic in the coming months as the implications become more clear.

Amanda Marzullo: In another Fifth Circuit case, the Texas Department of Criminal Justice has settled with plaintiffs who alleged that un-air conditioned cells at the Wallace Pack unit placed heat sensitive inmates in danger.  For now, the settlement only affects one unit, but there are many other inmates in the heat sensitive categories outlined by the court. It remains to be seen if other units eventually will also be required to comply.

Scott Henson: Finally, after I interviewed Brandy Grissom in December about sex abuse scandals in Texas Youth Prisons, the Governor replaced the Executive Director and Board Chair at the Texas Department of Juvenile Justice.  More controversial though, is the Governor's decision to get rid of the Independent Ombudsman for TJJD, Debbie Unruh, whose good work had uncovered many of the problems at the agency. On my blog, Grits For Breakfast, I called her firing an example of shooting the messenger.  My interview in December with Brandy Grissom was filled with examples where Unruh's work was the only available source of information about serious problems at the agency. She was replaced by a Texas Ranger with no Juvenile Justice background.

Amanda Marzullo: Now it's time for our rapid fire segment we call The Last Hurrah. Scott, are you ready?

Scott Henson: Locked and loaded, let's do it.

Amanda Marzullo: In Harris County, the Juvenile Detention Centers overflowing because Judges are jailing youth for technical probation violations, which account for 70 percent of all probation revocations.  Meanwhile, juvenile crime is way down. So, Scott, does this make sense?

Scott Henson: Makes no sense at all. You'd think if crime goes down, Detention numbers would go down. The fact that they're going up means that there's something wrong with the process and the policies.

Texas' adult prison system has increased wages for Entry Level Correctional Officers to try to reduce high turnover rates. But the move has exacerbated high turn over at Texas Youth Prisons, which are all situated in rural areas where they compete with Adult Prisons for employees.  So, Mandy. Is the answer to throw more money at this problem?

Amanda Marzullo: Temporarily, yeah, that makes sense. That's how they're going to compete for the employees that they need. But longer term, it's not really a workable solution. At the end of the day, they can't staff up to handle the number of people that we're incarcerating.

Scott Henson: Just need to incarcerate fewer people. That's it.

Amanda Marzullo: Yes. Last one. The Great Texas Warrant Round-up is nearly upon us. But two Texas cities, Forth Worth and Austin, have opted out. With Fort Worth implementing a "warrant forgiveness month" instead.  So, Scott, give me the elevator pitch for why more jurisdictions should follow their lead.

Scott Henson: This is part of the fall out from the Legislature trying to address the debtors prison issues in 2017. They made a good first start, but they've not addressed all of the issues surrounding jailing people for criminal justice debt.  So, it's good to see these two jurisdictions taking the lead and pioneering sort of new methods to avoid jailing people for debt whenever possible. Happy to see it.

Amanda Marzullo: All right, we're out of time. But we'll try and do better the next time. Until then, I'm Amanda Marzullo with the Texas Defender Service.

Scott Henson: I'm Scott Henson with Just Liberty. Goodbye and thanks for listening. We'll be back next month and until then, keep fighting for Criminal Justice Reform. It's the only way it's going to happen.

Shout out to Brooke Robbins from the Texas Public Policy Foundation. Congratulations on your new gig with the Trump administration.

Transcribed by Rev.com, edited lightly by Scott Henson for accuracy and clarity.


Steven Seys said...

It's quite interesting that the Dallas DA primary race is centered on reform since it was Henry Wade's tough on crime policies that made the need for reform so apparent. He kept evidence in criminal cases perpetually in the hope of using it to reconvict the original defendant should another similar case arise. That's the only reason Dallas County has so many exonerations and other counties don't. Smith County has had a policy of destroying all evidence as soon as TCCA issues a final judgment or the defense fails to file an appeal.

Anonymous said...

For clarification purposes, it was the Wallis Pack unit, not the Walls-pac unit.
Anyone familiar with TDCJ-ID knows the difference.

Anonymous said...

Steven Seys -

I am in Dallas, and the reason that Dallas County retained evidence in perpetuity (which has resulted in the exonerations you reference) had absolutely nothing to do with Henry Wade. That decision was made decades ago by the Dallas County Medical Examiners Office with the approval of the County Commissioners.

Anonymous said...

Anonymous 2/21/2018 10:00 am - For clarification purposes, it's Wallace Pack Unit, not the Wallis Pack unit. 'Anyone familiar with TDCJ-ID knows the difference.' We need participants in reform, not spell checkers. We know that they meant.

Gritsforbreakfast said...

@9:10, that's a transcription service error. Will correct. Except it's the Wallace Pack Unit, not Wallis, fwiw.