Thursday, December 13, 2018

Tax deadline for exonerees, Blakinger on 'Fresh Air,' judge rubber stamps flawed blood-spatter forensics, and other stories

Lots going on this week, even if your correspondent hasn't had much blogging time. Here's a quick roundup of items presently filling up Grits' browser tabs:

Texas Exonerees: Tax deadline looming
Any Texas exonerees receiving compensation from the state: You have until December 17 to file to have your state compensation declared tax exempt. Act now! This time next week it will be too late!

Journalistic scoop scored inmates dentures, national press for reporter
Congrats to Keri Blakinger! Terry Gross from NPR's "Fresh Air" interviewed her about her great journalistic victory securing dentures for toothless Texas prisoners. The Department of Criminal Justice has begun issuing 3D-printed dentures to toothless inmates. What an excellent result. Keri, you should be very proud. And I'm proud of TDCJ, too, for doing the right thing here.

Rubber stamping prosecutor findings upholding bad forensics
Visiting Judge Doug Shaver ignored evidence of flawed forensics in the Joe Bryan murder case to recommend against habeas corpus relief, despite blood-spatter evidence connecting Bryan to the crime being thoroughly debunked and discredited during the hearing. (The same judge once ruled that a lawyers sleeping through his client's death penalty case had not provided ineffective assistance!) Reporter Pam Colloff was shocked that Shaver simply adopted the prosecution's findings without alteration, but this is actually a more common practice than most people know. The Court of Criminal Appeals should reverse the judge's conclusions. It's disingenuous to pretend that the only forensic evidence connecting the defendant to the crime did not contribute to his conviction. This case is exactly the type of circumstance for which Texas' junk science writ was created.

Demagoguery backfires: Flag desecration case more complex than portrayed
In September, the Denton County Sheriff held a press conference to engage in demagoguery regarding a man alleged to have desecrated an American flag. Now, it turns out the guy is mentally ill, has a sad, complex backstory, and can't make bail because of a bad credit record. The county has spent thousands of dollars to incarcerate him - with no end in sight, until he's deemed competent to stand trial - all based on ~$300 worth or property damage. The ACLU has taken up his case, alleging he is being singled out and punished more harshly because of his political message. See coverage from the Denton Record Chronicle.

Asset forfeiture in TX tops $50 million
Texas cops seized more than $50 million in assets from Texans in 2017, alleging they were contraband. But in many instances, property owners were never convicted of a crime.

How cops turn mental health crises into deportations
I'd missed this when it came out in August, but the excellent reporting from the Texas Observer on the topic remains timely.

Prosecutor misconduct alleged, execution goes forward anyway
Alvin Braziel was executed on December 11 just hours after a member of the prosecution team admitted to alleged misconduct in the case. Judges Walker and Alcala dissented.

How bogus blood-spatter evidence 'spread like a virus'
Excellent historical background from ProPublica from Leora Smith, a young researcher who worked with Pam Colloff on the Joe Bryan story.

Wanted: Generalist forensic scientists
A new paper argues that traditional forensics will be a dead profession in a few decades if generalist scientists do not step up to engage the profession.

Fewer murders this year
Nationwide, murder rates appear to be declining in 2018.

The First Step Act will get a vote in the Senate
Thank heavens!

For podcast listeners
In addition to Just Liberty's Reasonably Suspicious podcast (I was particularly pleased with the December episode), the Marshall Project has a good roundup of recent #cjreform podcasts and multi-media projects that may interest Grits readers. In addition to the ones listed there, I've also been enjoying Villains - neat concept for a podcast.

Wednesday, December 12, 2018

Podcast: Adversaries over Austin police-union contract sit down; when is it okay for courts to electrocute mentally ill defendants?; pythons as stocking stuffers?; and other stories

When is it okay for a judge to electrocute a mentally ill defendant?

What leverage did a Texas civil rights activist say enabled Austin advocates to force reforms into the city's police-union contract?

How many pet pythons are too many, and are they appropriate to give at Christmas as stocking stuffers?

These and other questions are answered on this month's episode of the Reasonably Suspicious podcast. As always, you can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:

Here's what's in this month's episode:

Opening: Pythons as stocking stuffers?

Top Story
Police-union negotiators Ron DeLord and Chris Perkins sit down with a now-familiar adversary, Chas Moore of the Austin Justice Coalition, to discuss the aftermath of the year-long fight over the capital city's police-union contract.

Home Court Advantage
  • When is it okay to electrocute a mentally ill defendant in court? Discussion of James Calvert oral arguments
  • Ken-Paxton prosecutors de-funded, but at what cost to indigent defense?
The Last Hurrah
  • Dallas PD officer indicted for murder
  • Lawsuit challenges driver surcharges
  • Ray Hill, R.I.P.
Find a transcript of the show below the jump.

Tuesday, December 11, 2018

Conflation of punishment with price system distorts justice in sex-assault cases

We live in an era when "justice" has been defined largely in terms of the price system, as though it were subject to laws of supply and demand. The root theory behind our modern justice system, in large part, holds that punishments are a "price" paid for misconduct and, if they do not deter, it's because the "price" wasn't high enough.

Defining punishment abstractly as the "price" of crime generates perverse cultural meanings for victims, prosecutors, jurors, and others engaged with the system. Under the price-system mindset, harsh punishment by the state (which monopolizes the currency of punishment) is evidence that the victim is valued, while more lenient outcomes are evidence that they are not, that a lower "price" has been placed on their suffering.

This implicit pricing model distorts nearly every part of the justice system, but particularly regarding sexual assault. Certainly, some women want maximal punishment for their rapist. But because the overwhelming majority of women know their perpetrators, often including beloved family members, harsh punishments can also perversely prevent some women from reporting crimes against them. For them, defining the "value" placed on their suffering vis a vis the "price" of punishment harms their interests, making them less safe and abnegating their needs rather than meeting them.

This is why Grits has often thought that restorative justice tenets may ultimately provide a viable, alternative path for how to confront these horrible situations. Such interventions focus on the questions, “Who was harmed? What do they need? Whose obligation is it to meet those needs?,” which seems like a more constructive approach than one-size-fits-all punishment regimens.

But the pricing model is what we've got, and a couple of recent, high-profile cases help demonstrate how treacherous this terrain can be.

In Waco, the town is in a furor over outgoing DA Abel Reyna's office agreeing to a plea bargain for a former Baylor frat president, Jacob Walter Anderson, indicted by a grand jury on four counts of sexual assault. Under the deal, he pled to a third-degree felony charge of unlawful restraint. He'll serve no jail time, undergo counseling, pay a $400 fine, and won't be required to register as a sex offender. Reported the Tribune-Herald:
The victim, who has been outspoken against the plea bargain, began to cry loudly Monday after Strother announced his decision to accept it. She urged the judge to reject the plea offer and set a trial so she could have her day in court. She said Anderson sexually assaulted her, repeatedly choked her and left her for dead after she fell unconscious. 
Later, in an emotional victim impact statement, she told Strother she is devastated that he approved the plea bargain. She called out prosecutor Hilary LaBorde, who struck the deal with Anderson, and McLennan County District Attorney Abel Reyna for not attending the hearing. 
“If I had the courage to come back to Waco and face my rapist and testify, you could at least have had enough respect for me to show up today,” she said. “You both will have to live with this decision to let a rapist run free in society without any warning to future victims. I wonder if you will have nightmares every night watching Jacob rape me over and over again?” ... 
The woman described in sometimes graphic detail what she said Anderson did to her. 
“When I was completely unconscious, he dumped me face down in the dirt and left me there to die,” the woman said. “He had taken what he wanted, had proven his power over my body. He then walked home and went to bed without a second thought to the ravaged, half-dead woman he had left behind.” 
The woman said she has learned through this process that “the McLennan County justice system is severely broken,” but she thanked the women who created an online petition opposing the plea agreement that she said was signed by more than 85,000 people.
So why did the McLennan DA's office fail to go to trial? They feared an acquittal, was supposedly the reason. ADA Hillary Labord
declined comment about the case. However, in an email she sent the woman and her family after they learned of the plea agreement by reading the Tribune-Herald, she said she offered the deal after an acquittal in a sexual assault case that she said was similar to Anderson’s. She said she was concerned Anderson would be found not guilty. 
“(The jury) engaged in a lot of victim blaming — and the behavior of that victim and (this victim) is very similar,” she said. “It’s my opinion that our jurors aren’t ready to blame rapists and not victims when there isn’t concrete proof of more than one victim.”
The prosecutor's motive ostensibly was to protect a victim who didn't want to be protected, but she never spoke to the victim to tell her about the deal, letting her learn about it in the newspaper. So far, one notices, no one has judged the behavior or credibility of the victim but the prosecutor. Jurors never had  the chance.

In that light, how did anything that happened throughout this process meet this woman's needs? The state demonstrated they didn't value her by judging her credibility, failing to communicate, even to say the DA planned to dishonor her wishes, then they placed a low, abstract "price" on her pain through lenient punishment without giving her a chance to tell jurors her side of the story. No wonder the woman's angry! A statement released by the victim's family, the Tribune-Herald reported, declared:
“This is an absolute travesty,” the statement reads. “By agreeing to this plea, (prosecutor) Hilary LaBorde and the McLennan County DA’s office have allowed that rape is no longer a crime in Texas. They are telling the rapists and sexual predators, ‘Go ahead and violently rape, choke to near death and abandon your unconscious, ravaged and used-up victim and we will make darn sure you get some counseling. Even if a grand jury indicts you on four counts of sexual assault, we don’t care.’ 
“Oh, and ‘All you rape victims, don’t bother to report it, because we will put you through hell for years, make promises about getting a conviction and lie to you about not accepting a plea the whole time. We will give your rapist counseling and drop all charges and let him go free. We don’t care about about justice and we don’t care about you,’ ” she said in the statement.
The victim here isn't just angry about a light sentence, although she clearly thinks her rapist should have been punished more harshly. But she's also angry about not being kept informed, about the DA's office ignoring her willingness to testify, and not getting her day in court. She feels lied to. She felt throughout the process that she wasn't being heard, viewed the trial as the moment when she finally could be, then saw that opportunity taken from her in a deal considered friendly to her assailant. Anyone would be mad.

By contrast, consider this recent story:  In Bell County, a man disproved false rape allegations by producing a selfie taken in Austin as an alibi. An ex-girlfriend accused him of breaking into her house, raping her, and carving an "X" into her chest. Police initially believed her, and the guy was in serious jeopardy of spending a long stretch in prison if he hadn't been able to prove his whereabouts.  Now, she has been charged for making the false report.

Thank heavens the fellow was out of the county and could produce a time-stamped selfie! If the same fact-pattern occurred in the pre-cell phone era, he'd be screwed.

False allegations are rare but do happen. Indeed, the FBI has asserted that, 'The “unfounded' rate, or percentage of complaints determined through investigation to be false, is higher for forcible rape than for any other Index crime." Some false allegations, as in the San Antonio Four case, appear to arise from retaliation. Some come from young women embarrassed at their own behavior. And some are women who are raped by a stranger and make an honest but tragic mistake about their assailant's identity.

In those incidents where a rape did occur but the wrong person was accused, a double tragedy occurs. An innocent is punished for the sins of another and the real perpetrator goes free. That's a worst-possible-case scenario that should justifiably scare anyone - say, jurors asked to pass judgment in these instances.  Women deserve justice, but justice is poorly served when an innocent person is punished.

Grits values both the victim's pain in Waco and the liberty interests of the man in Bell County. For that matter, I hope that the defrocked frat president turns his life around, repents his sins, goes on to live a productive life, and never does anything like that again. It's possible the best way to ensure that happens is to send him to prison for decades, but I've no evidence that's true.

I don't know how to resolve these high-level contradictions based on evidence, particularly when the evidence we do have suffers from undercounts and corrupted data about how many rapes are actually solved. One bit of good news: changes on the misleading data front are apparently in the works.

In response to the Reveal podcast criticizing Austin PD's categorization of "exceptionally" cleared rape cases (see Grits coverage here and here), the FBI will change its definitions regarding what qualifies a rape investigation for "exceptional" clearance, according to a followup story from the Center for Investigative Reporting.

For decades, law enforcement lumped cases which were "cleared" by arresting a suspect into categories along with much more numerous cases where police had identified a suspect, had probable cause to make an arrest, but chose not to do so because a judgment had been made by police or prosecutors that the case wasn't winnable. As with the case in Waco, typically victims weren't involved in or often even notified of those judgments.

Grits cannot presently discern the path leading from an unsatisfactory status quo to a system that more reliably delivers just outcomes in sexual-assault cases. But it's clear to me the justice system as presently constituted exacerbates the problem, and IMO a big source of the disconnect is this conflation of the value society places on victim's suffering with punishment as the "price" paid for crime.

Wednesday, December 05, 2018

Federal suit challenges TX driver surcharges, debtors-prison practices account for 1/5 of jail admissions, and other stories

Here are a few browser-clearing odds and ends that merit Grits readers' attention:

Federal suit challenges driver surcharge
New federal civil rights litigation  from the group Equal Justice Under the Law has been filed challenging Texas' Driver Responsibility surcharge, reported the Houston Chronicle. See also: the original complaint in the case.

DPS to audit Austin PD rape-clearance definitions
Austin PD has asked the Texas Department of Public Safety to audit how its categorizing cleared rape cases, reported the Austin Statesman. Good. Chief Manley's responses to the allegations before that had been insufficient.

Criminal charges finally cleared vs innocent SA-4
The San Antonio Four have finally had their false convictions expunged, reported the SA Express News.

TDCJ staff allegedly falsified disciplinary records, again
More Texas Department of Criminal Justice staff are under investigation for allegedly falsifying records to make their disciplinary statistics look better, reported the Houston Chronicle's Keri Blakinger. This is a major, ongoing story. There's no telling how deep this rabbit hole goes!

Levin: Debtors-prison policies account for one-fifth of jail admissions
In The Hill, the Texas Public Policy Foundation's Marc Levin had an op ed opposing state-and-local debtors-prison policies. About one-fifth of people entering county jails, Levin declared, are admitted because of failure to pay a government-imposed fine or fee.  RELATEDThreatening letters from a government debt collector. ALSO: N.b., as evidence of the populist basis for opposition to these mulct-the-public practices, a restaurant in D.C. had taken to giving people discounts if they bring in a traffic or parking ticket, and holding a raffle to pay off one person's ticket per month! AND MORE: Check out the Texas snapshot from a 50-state debtors-prison reform tool created by the Criminal Justice Policy Program at Harvard Law School.

De-funding Paxton special prosecutors may impact indigent defense
A Texas Observer report on the Court of Criminal Appeals decision in on payment of Attorney General Ken Paxton's prosecutors raised the same issue about indigent defense as did this Grits post.

8-year sentence for improper voting upheld
The Second Court of Appeals upheld the eight-year sentence of a woman who illegally voted in Tarrant County because she thought she was allowed. The court failed to reach the merits of the argument, declaring her lawyer had not properly preserved an objection. These cases are an embarrassment.

Annual report for Texas judicial support agencies
Read what's happening with a small constellation justice-related boards, commissions, and agencies you've probably never heard of.

Nativist knucklehead peddling anti-Muslim views to law enforcement
Read about a defrocked FBI agent now peddling anti-Muslim conspiracy theories to West Texas law enforcement. smh

McConnell balking on First Step Act
Senators have surpassed the number of yes votes that Mitch McConnell said were necessary to bring up the First Step Act, but the majority leader is still balking.

Other odds and ends
Here are a number of national items and stories from other states that caught Grits' eye this week:

Squeaky wheels get grease: CCA posting oral arguments again

Grits had been complaining to court staff about the failure to post videos of Texas Court of Criminal Appeals oral arguments for a couple of months. But they only, finally began posting the video after I publicly wrote about it on the blog last week.

Since your correspondent is both a public-policy advocate and also media, in a sense, I'm frequently afforded a unique perspective when these sorts of situations arise.

There is a telling pattern regarding how government agency leaders and politicians respond to advocates vs. how they respond to the media. Grits gets to see both.

Say a problem exists in government (any problem, pick a problem), but the only people aware of it are those trying to manage it. As an advocate deep in the weeds on policy, one becomes aware of problems about which the general public may not know. As a general model, an advocate might tell the folks in charge of the situation about the problem and, where feasible, recommend solutions. That's the job.

The smartest agency heads will admit mistakes instead of cover them up and attempt to fix the situation then. But most are not the smartest. Most are average. Indeed, by definition, half are below average! And so the typical response is to ignore the problem and stonewall advocates.

Things are different for the media, because drawing outside attention to an issue creates political pressures and hassles, highlighting failures the agency would rather conceal, either from voters or the people controlling its purse strings. So, the Houston Chronicle's Keri Blakinger might see the Texas Department of Criminal Justice act on concerns in her articles when the same problems raised by Jennifer Erschabek of the Texas Inmate Family Association were more easily ignored.

Grits sees this a lot. My go to move as an advocate is not to immediately run to the blog and flame anyone who's not doing what I prefer. There have been plenty of instances when Grits has identified a some glitchy, technical problem in government, shared it with someone in charge, and it was fixed without my ever having discussed it on the blog. By the time I'm writing about such matters, frequently it's out of exasperation, grumpy that I'm having to use political capital to pressure someone to do their job, when quietly fixing the situation would have avoided conflict.

That's sort of the dynamic here. I've been asking the CCA to post this material since before the October episode of Reasonably Suspicious. We had hoped to cover the James Calvert case, argued in September, in a podcast segment. By the November episode, it was still not available. Last week, once more I asked when the files would be posted and was told there was an indefinite delay, that there was no way to tell when they might resolve technical problems. Since the court is, after all, required by statute to post the video, Grits reported that news. And lo and behold, the Calvert file was posted online Monday.

For the record, thank you to CCA and Office of Court Administration staff who finally got these posted. But wouldn't have it been easier and less embarrassing to behave with similar alacrity two months ago when I first inquired?

Monday, December 03, 2018

Texas courts already know how to handle debt without incarceration; now the #txlege should apply those lessons to Class C misdemeanor fines

In a private conversation, a frequent #cjreform opponent recently criticized a proposal endorsed by both the Republican and Democratic Party platforms in Texas to eliminate arrests for non-payment of Class C misdemeanor debt.

"So you're just saying they shouldn't be punished?," our critic wondered, in an exasperated voice. "How is that justice? Should they face no consequence at all?"

We're going to be hearing this argument a lot in the coming months, so let's address it.

First, of course, no one is saying offenders shouldn't be punished. Overwhelmingly, most people who receive traffic tickets just pay them. And states that treat traffic infractions as non-criminal and send the debt to collections have essentially similar payment rates to us here in Texas.

So the question becomes, is it "justice" when a judge assesses debt which cannot be paid but fails to incarcerate the debtor for nonpayment?

Indeed, we need look no further on this question than to the same Texas Justices of the Peace who handle Class C traffic tickets at the county level. Those courts also handle civil claims up to $10,000.

When a defendant loses in small-claims court (it's not called that, anymore, but that's what it is), a JP typically orders monetary payment as judgment.

If the defendant cannot pay, jailing them is not allowed. Instead, plaintiffs must pursue debt collection using other methods, such as liens on property, turnover orders, sending the debt to commercial collections, etc..

We're left to wonder, why is debt to the government somehow such a big deal that it warrants incarceration of those who cannot pay? Clearly, non-carceral methods are sufficient for these same judges to declare "justice" done if the beneficiary of court-declared debt is a person, not the government.

The government has created a double standard to benefit itself. Ethical qualms about the private sector excessively squeezing the poor are routinely ignored in the public sector when it comes to criminal-justice debt, particularly Class C misdemeanor traffic fines.

Locals enjoy wide leeway on these questions and cities' reliance on Class-C-fine debt for revenue varies widely. Though apples-to-apples data is hard to come by, an item in Forbes a couple of years ago calculated 2013 per-capita ticket revenue for US cities with more than 250,000 population: In El Paso, the city received $6.16 per capita from these sources in 2013; in Houston the per-capita figure was $17.89; Dallas, $32.58; Plano, by contrast, received $43.36 per capita. That's all over the map.

Since municipalities which rely more heavily on ticket revenue have lower clearance rates for more serious crimes, no one should aspire to match those higher per-capita totals.

The use of incarceration to punish the poor for non-payment of traffic fines appears flat-out ironic when one considers that wealthier people are more likely to commit traffic offenses. So the class of folks facing the harshest punishments for Class C misdemeanors is also the least culpable. In a nation where 40 percent of the population, according to the Federal Reserve, cannot afford a surprise $400 bill without going into debt or selling something, that makes little sense.

There's nothing sacrosanct about debt to the government, certainly from the point of view of the debtor. From the perspective of the stone, it doesn't matter who wants to squeeze blood from it; none is forthcoming.

Saturday, December 01, 2018

Roundup: Lawsuit alleges cronyism and corruption at DPS; murder indictment of Dallas cop no aberration under outgoing DA; informant testimony makes for messy innocence claims; Pam Colloff's favorite #cjreform podcasts, and other stories

Here are a few browser-clearing odds and ends of which Grits readers should be aware:

Dallas cop indicted for Botham Jean murder
In Dallas, former DPD Officer Amber Guyger has been indicted for murder in the shooting death of her unarmed neighbor, Botham Jean. You've got to hand it to outgoing Republican DA Faith Johnson: She's been more willing to charge officers in wrongful shooting episodes than any Democratic elected prosecutor in Texas, or for that matter, as she boasted in this 13-second clip from the campaign trail, any other District Attorney in the country:

Lawsuit: DPS suffers from 'cronyism,' 'corruption'
A federal lawsuit has been filed accusing the Texas DPS under Col. Steve McCraw of "a 'good old boy' culture of cronyism and outright corruption." See initial coverage from KXAN in Austin.

Corrections Committee Interim Report out
The TX House Corrections Committee has published its Interim Report. Topics studied included responses to Hurricane Harvey, the need for specialized programming for 17-25 year olds, flaws in the state jail system, and heat litigation. More on this soon after Grits has had a chance to read it thoroughly.

Creuzot looking forward to Dallas DA stint
D Magazine published an interesting interview with Dallas DA-elect John Creuzot, for those looking for clues as to how this party hopping fixture in Dallas justice politics might operate at the helm of the DA's office. See the October Reasonably Suspicious podcast for excerpts from a debate between Creuzot and his Republican-incumbent opponent, Faith Johnson; the full 1.5 hour debate is here. Note to Judge Creuzot and other incoming elected prosecutors: Consider hiring this guy for prosecutor trainings.

Forum promotes public defender option for Travis County
A public-defender office has been proposed for Travis County. Those interested should check out this recent community forum discussing the possibility. See prior, related Grits coverage.

TDCJ troubles lead to calls for independent oversight
At the Texas Tribune, see coverage of prospects for independent oversight at the Texas Department of Criminal Justice in light of recent scandals, a rise in suicides, and gross understaffing at numerous rural units. House Corrections Chairman James White doesn't sound convinced.

Recanted witness, corrupt DEA agent won't sway Harris prosecutors on innocence claims
Especially in the context of the drug war, but also high-profile murders and violent crimes, the reliance of the justice system on self-interested testimony by confidential informants is one of the most significant causes of wrongful convictions. It's also among the hardest causes to prevent, and one for which the courts are loathe to provide redress. The Houston Chronicle's Keri Blakinger describes a case in which a DEA informant, who has since recanted his testimony, accused Lamar Burks of murdering someone at a dice game. But the Harris County Conviction Integrity Unit wouldn't budge. Now, one of the agents centrally involved with the investigation has been indicted in an unrelated case in New Orleans for perjury and falsifying evidence, evincing a similar fact pattern to what Burks' attorneys allege.

In The Dark shines light on amazing, terrible case
At Pam Colloff's recommendation, I've been listening to Season 2 of the podcast, In the Dark, focused on an apparent false conviction for a quadruple murder in Mississippi. This investigative tour de force is taking the form to new levels. Awesome work, as detailed in this Longform podcast interview about how the story was put together. When I interviewed her for the August episode of Reasonably Suspicious, Pam also recommended the second season of the Missing and Murdered podcast, and the podcast After Effect from WNYC, dissecting the aftermath of a tragic SWAT team raid. Just for fun, I excerpted her recommendations into a short, 2.5 minute clip, for anyone interested:

Sandra Bland documentary premiers on HBO Monday
Last, but definitely no least, on Monday, a documentary titled, "Say Her Name: The Life and Death of Sandra Bland," premieres on HBO. Grits simultaneously cannot wait to see it and dreads the broadcast. It's such a terrible, heart breaking story! Here's a review from the SA Express News, and the trailer: