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
Interview
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.

Transcript: December 2018 episode of the Reasonably Suspicious podcast hosted by Scott Henson and Amanda Marzullo

Amanda Marzullo: Hi, I'm Amanda Marzullo. While executing a search warrant, San Antonio Police and Animal Services discovered 136 snakes, all pythons, in a two bedroom, one bath home along with 451 mice and rats, which apparently were food for the serpents. The Express News reported that the pet owner was handcuffed at the scene, and angry that his property was being taken. So, Scott, do you think the homeowner's anger was justified?

Scott Henson: You're damn right I was angry. As it happens, I have a very large extended family. And the snakes were intended as Christmas presents for cousins, and nieces, and nephews, and all sorts of other assorted kinfolk.

Amanda Marzullo: As everyone puts on their list, right?

Scott Henson: That's right. The stocking stuffers, if you will is really how they were intended because who doesn't want a python curled up at the bottom of your stocking? And if I can't get my property back from impound, this whole Bah Humbug mentality is about to ruin Christmas.

Amanda Marzullo: Absolutely. I'm sure your friends, family, and kinfolk will agree that this is just destroying their holiday.

Scott Henson: When will the war on Christmas end, Mandy?

Amanda Marzullo: I don't know.

Scott Henson: When will it end?

Amanda Marzullo: Never, Scott.

Scott Henson: Hello boys and girls, and welcome to the December 2018 episode 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, Mandy Marzullo, who's Executive Director at the Texas Defender Service. How are you doing today, Mandy?

Amanda Marzullo: I've never been better, Scott.

Scott Henson: All right. Well, that sounds awfully good.

Amanda Marzullo: ... and I'm not getting a snake for Christmas.

Scott Henson: Well, not now you're not. That's for sure. On today's show, we discuss shocking developments at the Court of Criminal Appeals, or forum blueprint for 21st century prosecutors. And here, two police union negotiators square off with a Texas civil rights activist. Mandy, what are you looking forward to on the podcast today?

Amanda Marzullo: I am looking forward to discussing the Court of Criminal Appeals. We have two items, I'm not going to pick between the two of them because they're both excellent topics.

Scott Henson: So, you just go straight for the sexiest items, Court of Criminal Appeals decisions, just-

Amanda Marzullo: Yeah, that's what people tell me all the time, right? I mean, you can't pull the guys away from me. That's what people always say.

In our top story, 19 reform minded prosecutors from around the country gathered in Houston last week for the release of a new report titled, 21 Principles for the 21st Century Prosecutor. Produced jointly by the Brennan Center Fair and Just Prosecution, and The Justice Collaborative.

Four of those were from Texas, Kim Ogg from Harris County, John Creuzot from Dallas, Joe Gonzalez from San Antonio, and Mark Gonzalez from Corpus Christi.

Accompanying each principle, the report included numerous specific policy proposals for reducing the size and scope of the Justice system, and making it more humane. Scott, what stood out to you from their suggestions?

Scott Henson: I think what stood out to me more than any one thing, although, we're gonna talk about some specific items, was just how this is one of the first times you've seen advocacy groups lay out an agenda for what is a progressive prosecutor. We've talked on the podcast before about how when Larry Krasner produced his memo directing his prosecutors about how they should charge, and how they should talk about costs of, or incarceration to the jury, and all these different elements.

That was really the first time someone had shown, okay, here's what a prosecutor could do if you wanted to reduce mass incarceration. And I think that these 21 principles is furthering that conversation in a productive way. I don't think it's the final say so. There's a lot of things in here I agree with.

I also think there's some suggestions that maybe they left out probably to get all the prosecutors onboard that they got. And so, there's probably more to the discussion than just this. But, when Kim Ogg, or Mark Gonzalez from Harris County and Corpus Christi respectively were elected, there was no Krasner memo. There was no 21 principles.

And so they just got to declare themselves progressive prosecutors. They didn't have to say match up their policy agenda with some policy agenda of here's what progressive prosecutors believe. They just got sort of assume that mantel. And maybe they're progressive on some items, and maybe on some of the others much less so. But, we didn't have a way to judge, or have that conversation, or hold them accountable once they're in office before this intellectual work had been done.

So, in some way we put the cart before the horse, started electing the prosecutors before we had a way to sort of judge whether their achieving those progressive goals. But, this is part of how we make those judgements.

Amanda Marzullo: Yeah, I think for me the big thing that also stood out was that a lot of this we've seen prosecutors like you said endorse pieces of it, going on for decades here in Texas, but not all of it. And I just would urge that the funders and policy makers out there that a report like this isn't the final product.

And that we really need to be evaluating compliance with these principles. From a defense practitioners perspective, I think that even the four Texas prosecutors who showed up, don't necessarily sink up with these principles.

At least, not all of them for sure. But, for example, Mark Gonzalez, is horrendous on the death penalty. I know, he may be great on other issues, but our office alone is involved in four cases out of his jurisdiction.

Scott Henson: Right. And wasn't one of them one where the defendant had actually given CPR at the scene and stayed there until the cops arrived?

Amanda Marzullo: Yes. He actually is scheduled, jury selection in his case is scheduled for January. And the prosecution is seeking death. And that is a case that would not be a death case in other jurisdictions in Texas.

Scott Henson: Right. And that's an example where among these 21 principles, and one of them is worked in the death penalty. Other examples are play fair with forensic evidence, expunge and seal criminal records, and the poverty trap of fees and fines, broaden discovery, make diversion the rule, charge with restraint, and plea bargain fairly, end toward moving cash bail, or a move toward ending cash bail, excuse me.

So, and numerous others. And so, that's what I was saying many prosecutors, I would say most of these progressive prosecutors, there's probably gonna be two or three of these that they do really well.

Amanda Marzullo: Yeah.

Scott Henson: And they really are trying to do the best you could possibly do. There's probably two or three more for each of them where they've sort of made a hat tip. They're giving some thought to it. And then most of the rest, their office operates like it always has because when you move in and take over a new bureaucracy, you can't change everything at once.

And Krasner's really the one who's trying the most to say, okay, just soup to nuts, we're gonna change everything. And God bless him, but that's difficult to do, and it's not the choice most elected prosecutors make.

Amanda Marzullo: Last month, Austin activist, Kathy Mitchell provided podcast listeners with an update on the final result of the Austin Police Union contract. An agreement which had been the subject of an intense local battle over police accountability.

After the city council rejected the contract last December without accountability reforms, police went almost a year without a contract, not to mention without numerous lucrative stipends for officers which were built into the labor agreement.

With the new contract in place, local activists secured several important reforms to the disciplinary process while the overall cost of the contract reduced by about 10 million dollars per year. Now, that the dust has settled, tempers have died down and a new agreement is in place.

Scott invited the union's chief negotiator, Ron DeLord, and Chas Moore, one of Texas's top up and coming civil rights leaders and Executive Director of the Austin Justice Coalition to discuss what happened. Let's listen to their conversation.

Scott Henson: On December 13th, 2017 the Austin City Council rejected a contract negotiated between city management and the local police union. After local activists, led by the Austin Justice Coalition rallied the community to oppose it, demanding greater police accountability.

Nearly one year later, a new contract was signed, but this time it included numerous reforms championed by local activists and cost tax payers tens of millions less. Last month on the podcast, we recapped the results detailing new reforms included in the contract.

This month I asked Ron DeLord, the founder of the Combined Law Enforcement Associations of Texas, and Chris Perkins, who paired with Ron as lead negotiators on the union side to sit down with Chas Moore from The Austin Justice Coalition to reflect on what happened and why.

I'll put up a recording of the full conversation on my blog next week. But, in the mean time, here's some notable excerpts. Ron DeLord began by situating Austin's contract fight within police reform efforts nationally.

Ron DeLord: I've done this about four times. I was asked to go and speak, but only to the last one that I did in California was I, did I have a conclusion because the others was what happen, why'd it get voted down? But, I didn't know the ending.

And so, when it ended, then I actually could go back and reflect on what I saw as the difference. So, Nashville activists got a charter amendment up and they passed it against the union. Seattle activists where there's the police union and the department's under a federal consent decree, tried to block it, but the council passed it. But, now they've gone to the federal judge to see if he agrees.

Recently there was some similar stuff in Oakland. So, St. Paul, Minneapolis, have all had activists groups that go and one of two approaches. Don't hire anymore police officers because we wanna use the money on other social programs. And the other is just the arguments about transparency and accountability.

So, this came, was the first time I've been involved in it just myself, although, I now, that I have been, I've been watching around the country.

Scott Henson: I asked The Austin Justice Coalition's Chas Moore what lessons he had learned from the experience, and here's how he responded.

Chas Moore: You remember when we first started out we were just like any other activist group. We were in the streets marching, and protesting, and it didn't really solve anything. It was just like a space created for people to vent and be emotional, and be mad, which is needed in the movement in some capacity.

But, we looked at the reasons why we were marching, which was police brutality, the lack of discipline, lack of transparency. And for us that lined up with one question, how do we actually fix some of the things that we're out here protesting and shutting down traffic for, right?

So, here in Austin that led to us doing some homework, and some history of our own, and looking back at 1999 through 2001. That period with the police oversight workgroup I believe that you were on, or Kathy was on.

Scott Henson: I wasn't on the focus group, but I was part of the group that got the Austin Police Association boot planted firmly up my ass when we lost that fight. So, yeah, that's, I was part of that.

Chas Moore: Yes, so looking at that group, looking at some of the things that happened, or probably didn't happen that the group recommended that was taken away in this kind of last minute kind of a thing. And then looking at the root for the issues that we were concerned about.

And it all led to the police contract. And it led to us really focusing in on that, right, which is something that a lot of activists don't do, right? We like to protest, and march, and hashtag this and that, but for us it was like we really wanted to create change, and have change, and that's what it was.

So, for the last 18 months up until last couple of weeks ago in November, it was all contract. That's what I did for the last year and a half. And it was an interesting fight. It started with these guys basically saying I was a dumb piece of shit. And then, actually-

Scott Henson: That won't ever stop by the way. I mean, if you know Charlie Wilkinson, but that'll go on for a long time.

Chas Moore: Yeah, but now I think we agree to disagree on some things. And I think Ron, and Chris, and Thomas finally just said, "Well, like what do you guys actually want?" What's the motion and all that, and it led to some pretty good conversations. And I think it led to something historic.

Scott Henson: Chris Perkins had taken over as one of the lead negotiators relatively late in the process after contract negotiations had stalled. I asked him to describe what changed about the union's strategic approach with him at the helm?

Chris, you sort of stepped in maybe not quite at the 11th hour, but nearly as one of the lead negotiators. And I think it's fair to say that everything was at an impasse before you came one. The police association president had gone before the city council, and raised his voice and yelled at them, and really seemed at the end of his rope. And you stepped in very soon thereafter as sort of the closer, and negotiator to sort of take it home. And it seemed like there was a change in strategic approach then. That you all softened up, started to talk to the activists. Tell me about what was going on when you stepped in and how you were able to get to the conclusion.

Chris Perkins: Well, it was really a total team effort, though. I mean, I recognize that myself and Ron sat up as the face. But, we had a pretty diverse team. I harden back to December 13th of 2017. And that's the day where we as an association recognized that we were gonna have to take a different approach.

Scott Henson: I really enjoy that you remember the date.

Chris Perkins: I will never forget that date. I actually was on that negotiation team. I was not in a leadership role. But, I had been in the police association before as a full time representative. I had gone back to patrol, and to be a detective. And they kind of brought me back in. So, I was there for December 13th, 2017.

And all of our eyes were wide open. And we sat down. The level of organization, that for lack of better terms has caught us completely off guard. We underestimated. We were not communicating with some of the loudest voices in the community.

I've told Chas this several times. I don't call him an activist. He's a lobbyist. And some of the work that was done there, we had to sit down and take a real hard look at it. So, yes, we did take a different approach.

We started, actually, someone was a little bit harder to approach, and he might wanna accept it now. I tried reaching out to several members of The Austin Justice Coalition, and other organizations. And I guess it took them a little while just because of maybe past history. And they thought I might be trying to play some games.

But, I really wasn't because it wasn't just my belief, it really was Ron's as well. He'd seen this all over, and he saw this. We all were caught a little flat-footed by that day, but we said, "We have to take a new approach. Let's sit down. Let's have conversations because I bet there's a lot more that we agree upon than we don't, that we disagree with."

Because, it's my firm belief when these conversations happen, that not just the community, but the police officers themselves can become safer. If we're able to knock down some of those misconceptions, we're able to explain our side and listen to the opposite side, that's diplomacy, is a really good way to move forward.

Scott Henson: Proving you can still teach an old dog new tricks, Ron DeLord described how his approach and attitude had changed over the course of the Austin contract fight.

Ron DeLord: Here's the number one lesson that we learned. Round one, okay, they were loaded, they had prepared, they had a concise message, the police did not. They were able to find lots of allies, groups that totally surprised us that had really nothing to do. I mean, the Sierra Club, or Save Our Springs, what in the heck have they got to do with police bargaining?

But, they got 'em against us. And so, but what, but the lesson learned was when we came back I just ignored the chatter from Chas and the groups. I mean, they were picketing, they were out. They were at every meeting. And in numerous group ones would say, "But, we don't have a seat at the table."

But, for 50 years, it wasn't my problem because I dealt with the city. And the city is their representative. So, they weren't getting a voice on that side, or our side. But, I'll tell you, after the Round One, when we came back Chris and I, our team, made a decision.

We're going to go ahead and engage with activist groups, and we're gonna talk to them because the first time we ignored 'em, and they tripped us up. But, this time, I don't know that we can reach an accord on everything, and we couldn't.

But, once we sat down, it took several conversations back and forth that I would tell groups now, we're gonna look for things of which we can mutually agree that provides protection for the officers' due process, but at the same time, doesn't defend practices that don't make any sense.

Scott Henson: Finally, I asked Chas Moore to describe for the benefit of activists elsewhere, where he thought his leverage came from when confronting such a powerful adversary.

Chas Moore: I agree with Ron. And I don't think a lot of activists and organizers would like this, but I think, so what we wanted to do was win, right? We didn't care if you cared about our issue or our cause, we wanted to win. And we knew in order to win, the best way was to talk about money, right?

I agree 110% with Ron on that, right? I'm not sure, all but one, maybe two council members cared about the transparency and accountability. But, for the most part out of that 11-O vote, nine of those people probably cared about money, right?

So, instead of talking about stop killing unarmed black people, and stop mistreating people, we just had to talk about the money. And that's how we get the strange bed fellows of Sierra Club, and Save Our Springs, and all these things that really didn't make sense when you talk about it, right?

We had the parks people come out and talk about don't pay the cops, right? So, but, so, it was, for us it was how do get, what's the road to win, right? And that was a huge part of it, which something we agree with, right? But, that's not the most important thing for at least for my organization, right?

We care about, we do care more about the transparency and accountability. But, the money factor, which is equally important was the most important to the people that ultimately made that decision. So-

Scott Henson: Right.

Chas Moore: ... that was something that we lifted up for, probably about six months of last year. And then once we got that initial no on December 13th, now we can start talking about other stuff, right? I think if people were really paying attention to it, I think the money issue became incredibly transparent that, that was the key issue back in I believe, February, March, or April when they again just didn't give them a stipends back.

So, for me, I knew at that time, okay, that's the leverage point. And in order for us to get what we want, and for them to get what they want, we were gonna have to have these conversations, right, because city council could have easily hid behind us again if they wanted too.

But, we also looked at well, can we actually live with a better contract? Can they get some money back? Because, we did want the information, right? We wanted the-

Scott Henson: Right.

Chas Moore: ... the information on a bad cops because everybody thinks we're an anti-cop group, and we're not. We're anti-bad cop, right? We're anti-secret cop, and all that type of stuff. So, the leverage point for us, which we identified very quickly was money.

Scott Henson: In September, the Texas Court of Criminal Appeals heard oral arguments in James Calvert v. State, a death penalty case out of Smith County in which the mentally ill defendant represented himself at trial.

The case mad headlines after Mr. Calvert was electrocuted with a 50,000 volt stun belt by the court security team for disobeying a command to stand up. As we'll hear, not even the government suggests there was a safety based reason to do so.

But, Mr. Calvert's headline making courtroom electrocution has overshadowed other important issues raised by his attorneys. Let's dig into them.

Court clerk: Oye, Oye, Oye. The Honorable Court of Criminal Appeals is now in session.

Amanda Marzullo: James Calvert was a particularly difficult defendant, as his lawyer even admitted in court.

David Debruin: As we acknowledged in our briefs, faced with a difficult situation that he did not want, and feeling that he had no choice but to proceed pro se, James Calvert proved to be a difficult pro se litigant with obvious mental health impairments. He was paranoid, he was highly obsessive, compulsive. He readily perceived offense.

Scott Henson: Calvert's attorney, David Debruin, criticized arguments by the prosecution in the penalty phase of the case where testimony was given by a former prison guard who'd been stabbed in the eye by an inmate.

David Debruin: The Court allowed the State to contend that Calvert should be executed because some other unknown inmate, having no connection to Calvert, stabbed a pencil through David Logan's eye and into his brain. The Court also repeatedly expressed in the presence of the jury, the Court's own view of the evidence, and its own feeling about Calvert.

The Court ultimately encouraged deputies to electrify Calvert with an electric shock device simply because Calvert occasionally failed or forgot to stand when addressing the Court. The Court also wrongfully terminated Calvert's pro se status.

For all of these reasons, I submit, Calvert is entitled to a new trial, or a minimum to a new capital sentence and Hearing.

Amanda Marzullo: Judge Alcala wondered how prosecutors could make the case for future dangerousness without ascribing dangerous prison conditions. But, Debruin pushed back insisting the case law requires an individual assessment.

Elsa Alcala: But, in prison, people turn pencils into stabbing objects, and they kill each other, and they throw bleach on each other. I mean, it's a horrible place, and horrible things happen.

David Debruin: I understand Your Honor, and that is certainly true. But again, in Cavil this Court said, you still have to pose that face on the individual's circumstances of the defendant. And to take an incident like what happen to Logan, that had nothing to do with Calvert. And then basically say, "Execute Calvert because of what happened to Logan by some other inmate who may have absolutely no relation in terms of his background, in terms of his record, in terms of his makeup to James Calvert." I submit is impermissible.

Scott Henson: Debruin also criticized the Trial Judge, Jack Skeen for repeatedly commenting on the evidence and being openly hostile to Mr. Calvert.

David Debruin: Given the number of instances that we point out in our reply on pages 26 to 29, where the Court commented on the evidence, and also commented about Calvert, finding his cross examinations to be just a total waste of time.

Can you imagine if the Court had the State's first witness called, and the Court said after the State's witness rested, well that was a total waste of time. Again, this is the Court not acting as the neutral arbiter in a case.

But, expressing its own views and opinions. And this Court has recognized jury's pay attention to that. The Court has enormous respect. And given the volume of comments, the Court stating in the presence of the jury, "I can't hear you, James Calvert, but I don't know what difference it makes if I can hear you." Again, signaling the Court's opinion about Calvert.

Scott Henson: Debruin didn't spend much time talking about Calvert being zapped with an electrified stun belt. But, it was all the government's lawyer wanted to talk about.

Michael West: In Calvert, you have a situation where number one, you have a pro se defendant who from the get go was nothing but full of contempt for the proceedings, full of contempt for the Trial Court, full of contempt for the State.

David Newell: Is it, let me ask you this, are you suggesting that, are you suggesting that I'm serious, I'm interested in what'd you say about this, that the law, there's a law, our law would allow for a judge to use a stun belt, or something for some purpose other than security?

Michael West: There's no case law to help me that question.

Amanda Marzullo: The prosecutor's representative, Michael West, conceded that there is no finding in the record that Mr. Calvert posed a security threat. Instead, he insisted that the defendant's continued insolence justified zapping him. Judge Alcala wasn't buying it.

Elsa Alcala: Mr. West ...

Michael West: Yes, Your Honor.

Elsa Alcala: I'm still coming back to whether you're seriously arguing that this was for security. The record says, I mean, they quote the record in the brief that the judge says, "Stand up." And then the captain says, "Stand up." And then the sergeant says, "I told you to stand up." And then the captain says, "Stand up." And then he's shocked.

So, he was just sitting there. It's pretty obvious to me. And then later on they get testimony from this Captain Caraway who says, "At the time he was zapped, he wasn't making a move to the DA, making a move toward the Court. He wasn't making a move toward Court personnel. He was basically being disrespectful, and not standing up when he was supposed to, and sitting down?" And the answer is, "Yes."

So, how can you argue that he was a security risk where the record to me is more than clear that he was sitting down, the judge says stand up, and he didn't do what the judge, well, one of them says stand up, he didn't stand up, and then he gets shocked. How on earth is that for security?

Michael West: I haven't said it was for security, ma'am, Your Honor. I've said there's no findings that represent that it was for security reasons-

Elsa Alcala: But the-

Scott Henson: Judge Alcala insisted that the use of the stun belt in this case was wholly inappropriate.

Michael West: It's not in the record, but when you're in the courtroom and you see it, and ...

Elsa Alcala: Believe me, I was a trial judge, I had all kinds of crazy people in front of me. And I was as frustrated as all get out. But, the remedy is not to put a shock device on him and shock him when they don't stand up. That is just, they even know of black and white, you don't do that.

Scott Henson: There's a lot to chew on there. So, Mandy, what's your takeaway on this case?

Amanda Marzullo: I think this case is outrageous. And essentially, the outcome undermines the integrity of our system and public confidence in it. In particular, to me what stands out is the judge commenting on the evidence.

In the defense briefs they note 20 instances where the judge talked about the evidence and made comments to undermine Calvert. That is not a judge that's calling balls and strikes. That is a judge that has a particular point of view and is communicating it to the jury.

Scott Henson: Clearly had become frustrated and angry with Calvert, and made no effort to hide that from what it sounds like in the record.

Amanda Marzullo: Yeah, no, and so, it's hard to imagine that this was a fair trial.

Scott Henson: Yeah, the Court seemed to say, to be saying, they seem to be telling the attorney for the state that if he can come up with some security reason, they might find some way to justify it. But, there was none. There simply is not any secure, the guy was just sitting there when it happened.

For me, the issue in the case is whether the jury heard it is sort of how the framing, that the oral arguments went. To me, even if the jury didn't hear it. Going back to what you were saying about the constant badgering of the witness and dismissing what he said, and oh, well, that was a waste of time after he had presented parts of his case.

And even if the jury didn't hear him zapping Mr. Calvert, to me it shows Skeen's prejudice, the judge's prejudice in the case against him that, and okay, I'm gonna clear the courtroom and now it's time for you to get yours. And Calvert said to him after, well, I bet you enjoyed that.

But, you know what? It kinda seems like he probably did. It seems like that Skeen got some satisfaction from that. That there is, it was more personal than it should have been for a judge engaging, overseeing a death penalty case.

Amanda Marzullo: No, it's terrifying. I mean, it's really a worse case scenario from sort of an observer's standpoint about how it, a trial can be convened.

Scott Henson: Well, and as the attorney for the defense said, Calvert should not have been representing himself in the first place. I mean, the whole thing about allowing a mentally ill defendant to represent himself at trial, and then wondering why everything goes sideways. Well, gee. I'm really surprised honestly, that any judges are looking at this trial and thinking, oh, yeah, we wanna go ahead and implement a death penalty based on what happened here. It's just a mess from start to finish. It's very hard to see how a jury could not have been biased by what occurred.

And I hope very much that they go ahead and allow for a new trial, or at least a new sentencing hearing because this is not what our justice system needs to look like. We don't need the judge being dismissive of the defendant, and telling the jury that their arguments are worthless and don't matter.

That's not how this oughta be done, certainly not in a death penalty case. So, the zapping aside, the whole trial looks biased, and really embarrassing, and just something that Texas shouldn't be standing behind.

Next, the Texas Court of Criminal Appeals recently ruled against special prosecutors over their fees in the criminal case against Attorney General Ken Paxton. The court declared special prosecutors couldn't charge more than the trial rate established by the county for indigent defendants.

But, in a notable dissent, Judge Elsa Alcala declared the ruling was effectively a decision to deny paying a reasonable fee to defense attorneys appointed to represent indigent defendants, predicting that the ruling quote, "Will likely result in more cases of ineffective assistance of council." Mandy, what do people need to know about this case?

Amanda Marzullo: Well, in a nutshell that Judge Alcala is right. This ruling has potential to be a rollback pretty much on the Fair Defense Act itself. And it's pretty scary.

So, by way of background, the way the Texas statutory scheme works is that the county government, the commissioner's court, is supposed to put together an indigent defense, an indigent defense plan that sets sort of rates for compensation for defense council.

And in theory, they're supposed be based on fair market value of those services. But, in reality there is a lot of deviation. So, in Collin County where the Paxton case was taking place, the fee set for $1,000 flat fee for non-capital felonies, which would include potentially a murder case.

Scott Henson: Right.

Amanda Marzullo: And then, another $1,000 for pre-trial prep. And then once you get in court, $1,000 a day. Now, that means that, that's $2,000 for all of the preparation for a case, which can be tens of thousands of dollars.

And frequently, often is at that rate. So, it would make sense for courts to deviate from those statutory schemes when paying defense council. And what happens is in typical cases is the defense attorney fills out a voucher with an itemized bill that explains what they did, and that extra time. And then they're paid an hourly rate.

And I've seen that in bills from Collin County itself. But, what this decision says is that the trial court has no discretion to deviate from that schedule. So, that means that the defendants are locked into just $1,000 for payment.

Scott Henson: And the strange thing in this circumstance is that of course, this is not the lawyer for an indigent client, this is a special prosecutor in a case involving corruption allegedly committed by a statewide elected official.

And when you look at the history of the prosecution of statewide elected officials in Texas, they typically come up with defense teams that are simply through the moon. I don't know the numbers on what Ken Paxton has spent, but when Rick Perry was accused of crimes, and had to hire some attorneys, they spent 2.2 million dollars-

Amanda Marzullo: Yeah.

Scott Henson: ... on their defense. And hired some of the biggest names in the Texas legal system to defend him. Well, if that's the case, then having a couple of thousand dollars to spend on lawyers' means you probably shouldn't even bother to prosecute corruption anymore.

Amanda Marzullo: Yeah.

Scott Henson: What's the point-

Amanda Marzullo: You're not-

Scott Henson: ... if you're gonna just bring a pea shooter to a fight with a Howitzer. And so, that's the sort of direct implications. These indirect implications of wait, what about every murder case that's more complex? What about all the circumstances where somebody needs to hire an expert, or all these things?

Amanda Marzullo: Well, I think the bigger issue is that as [Kelo 00:35:51] noted in her dissent that these statutory schedules, or these schedules, they're not statutory, aren't reflective of a reasonable rate. And so, that means that this entire scheme that they've put together for compensating defense council doesn't hold muster.

The majority opinion pretty much acknowledges that towards the end they say, hey, this is just a special prosecutor case, and so this is how it has to operate in terms of compensating attorney pro tems. But, when it comes to indigent defendants, there are six amendment implications that may trump this understanding of the law, which in and of itself leaves the trial courts with not a lot of guidance-

Scott Henson: No guidance at all.

Amanda Marzullo: Exactly.

Scott Henson: It just says, oh, you all, here's something we can litigate for years and years, fun-

Amanda Marzullo: Yeah, without paying you.

Scott Henson: Just, that's right. Let's just throw out the statutory scheme, and just throw it wide open, and just openly predict in the majority opinion basically, years of litigation that we have no idea how it's gonna end up when they could have just said right there.

This is one other example to me of outcome oriented judging at the Court of Criminal Appeals. They typically decide who they want to win. And then just make a bunch of spurious arguments to justify that, or I say they, the government always wins faction on the court.

This is sort of their modus operandi. And frankly, it's what we saw in some of the Calvert discussion. And they decided that they wanted Ken Paxton to win. The only difference in this case is that for once in the blue moon, the all Republican court wanted the defendant to win.

Normally, they would just want the prosecution to win. But, the common thread is the outcome oriented judging. The choosing what you want the result to be, and saying it doesn't really matter what damage is done by me just hacking through all this precedent. We're gonna get the outcome I want.

And if it takes years of litigation and it throws the whole indigent defense system, under the bus, ah, so be it. Ken Paxton got off, so that's good.

Amanda Marzullo: Judge Alcala is right. If defense attorneys are gonna be locked into the compensation that is under the county schedule, you're gonna see a lot of lawyers minimizing the time that they spend on their client cases. And we're reverting back to the plea mills that there's been a movement against.

And on top of that, attorneys may be litigating their fee, but you're probably not gonna see that in misdemeanor cases. It's gonna be in the bigger cases where they're going to say in order to execute my duties to my client, I need this departure from the fee schedule.

Scott Henson: And attorneys aren't gonna litigate their fees very often because they want the same judge to appoint them the next time. And if you go suing over higher fees, they're not gonna do it. And so, it's nice to think that that's an option, an outlet, but as a practical matter, it kind of isn't.

Amanda Marzullo: Yeah. And so, I mean, this is an area where I think the legislature should consider a statutory preemption of some sort, or I mean, the other answer to this is for county commissioners to update their fee schedules. But, there isn't always a willingness to do that, or it requires a lot of fact finding on their part. But, there are things that people can do now to prevent a disaster.

Scott Henson: Let's hope. Now, it's time for our rapid fire segment we call, The Last Hurrah. Mandy, are you ready?

Amanda Marzullo: I'm ready. Okay, first one. A grand jury has indicted Dallas Police Officer, Amber Guyger, for murdering her neighbor, Botham Jean in one of the most high profile police shootings of 2018. Scott, what's your reaction?

Scott Henson: We have to give Faith Johnson credit where credit's due. She's a Republican appointed District Attorney. Greg Abbott put her there. And she has prosecuted more police officers for improper shootings. Not just than any other prosecutor in Texas, including all our Democratic prosecutors, but any other prosecutor in the entire country in the time she's been there. So, credit where credit's due. She's got guts, and she's taking these cases on.

A new federal civil rights lawsuit filed by the group, Equal Justice Under the Law, challenges Texas Driver Responsibility Surcharge, alleging that it discriminates against poor people and creates incentives for the government to keep them trapped in a cycle of debt. Mandy, what do you think about this development?

Amanda Marzullo: I'm really excited to see it from the activist community. There've been discussions about filing a similar lawsuit for a long time. I think it's overdue. And I'm really hoping that the timing will incentivize lawmakers to preempt this lawsuit.

Okay, last one. In Houston, Ray Hill, a legendary LGBTQ rights activist and creator of The Prison Show at KPFT 90.1 passed away after an extended illness. Scott, how will you remember him?

Scott Henson: Ray was a bad ass, and a hell raiser, and a pioneer on civil rights fronts on every level. On gay, lesbian issues, he was out front at a time when people were dropping dead right and left. And you were on the frontline to something really pivotal and important.
When I first started working on criminal justice reform, The Prison Show was already an institution. And he's one of the few folks in all this work who was in this long before I was. And really deserves a lot of credit for having done a lot at a time when he mostly was doing it alone.

All right. We're outta time, but we'll try and do better the next time. Until then, I'm Scott Henson with Just Liberty.

Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Goodbye, and thanks for listening.

Scott Henson: You can subscribe to Just Liberty's Reasonably Suspicious Podcast on iTunes, Google Play, or SoundCloud. We'll be back next month with more hopefully, better news. And until then, keep fighting for criminal justice reform, it's the only way it's going to happen.

Trancscribed by Rev.com. Lightly edited for accuracy and clarity by Scott Henson.

2 comments:

Fat Jack AKA "Junior" said...

I'm thinking James Calvert may be smarter than most think. He knew that whether he represented himself or not, the outcome would be the same--death penalty. Why line the pockets of some lame Smith County indigent defense contract lawyer when you can go down in a blaze of glory by making the whole thing into a circus? The "James Calvert Show" was entertaining in a horrible, perverse way, like those videos online showing people dismembered in motorcycle accidents. Hell, he probably did himself a favor by provoking Skeen to show his true colors by yet again wiping his fat backside with the Constitution and disregarding evidentiary rules, giving more openings for an appeal.

As far a judge ordering a defendant to be shocked...

Why is Jack Skeen still on the bench, again? Since when did it become acceptable for a judge to torture a defendant who hasn't been convicted of a crime yet--for refusing to stand up and "honor" his dishonorable fat a-- no less?

I think the best I could probably muster if I were ever addressed by Skeen would be to use the title "Judge." No way would I ever address him as "Your Honor," as that is an attribute the man absolutely lacks.

I'm a law-abiding, conservative citizen who is frankly afraid of Jack Skeen Jr. Fortunately he has to retire by the end of his current term. But many of us are fearful that his protégé, current DA Matt Bingham may take his place by being appointed by the governor if Skeen retires before the end of his term. In many ways Bingham is just as bad, if not worse, than Skeen. We will all still have to watch our steps in Smith County for a while...

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