tag:blogger.com,1999:blog-8597101.post712823252964014893..comments2024-03-25T20:06:39.794-05:00Comments on Grits for Breakfast: Williamson County man actually innocent of drug possession where lab found no drugs existed: Habeas relief grantedGritsforbreakfasthttp://www.blogger.com/profile/10152152869466958902noreply@blogger.comBlogger43125tag:blogger.com,1999:blog-8597101.post-20574419742869367642014-03-10T08:42:51.501-05:002014-03-10T08:42:51.501-05:00In Harris County, we do not present drug cases to ...In Harris County, we do not present drug cases to grand juries without a lab test. If defendants plea before indictment, that's where the issue lies.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-31810031458777927732014-03-09T21:00:34.158-05:002014-03-09T21:00:34.158-05:00Actually, 12:41, in many instance in the sheetrock...Actually, 12:41, in many instance in the sheetrock cases no tests had been done beyond field tests. The Dallas News reported at the time that when the Tulia statute requiring corroboration for undercover drug informants passed in 2001, they sent the drugs off for testing to corroborate the informant testimony and found they were fake. That's what ultimately caused the scandal to unravel.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-2113505758937494162014-03-09T12:41:08.834-05:002014-03-09T12:41:08.834-05:00In the "sheet rock" example Dallas (I be...In the "sheet rock" example Dallas (I believe that it was actually powdered pool cue chalk) there was testing performed in many of the cases. There was field testing that gave a positive result because the chalk had been spiked with a little cocaine, so that it would give a positive result on a color test. Samples sent to the DPS lab also also came back positive, because they were just running a qualitative test that also gave a positive result with a trace level of cocaine (any level of cocaine is illegal). It was testing by a non-DPS lab that performed quantitative testing that showed the material was just chalk spiked with a little cocaine.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-54195614790476992472014-03-08T15:45:10.005-06:002014-03-08T15:45:10.005-06:00@Red, the fellow Scalia was relying upon for that ...@Red, the fellow Scalia was relying upon for that .027% number was a DA from Oregon named Josh Marquis, who later revised his estimate upward after Scalia's opinion came out to .75% (<a href="http://gritsforbreakfast.blogspot.com/2008/05/counting-innocent-discussion-of.html" rel="nofollow">see here</a>). But he admits that's just a back-of-the-envelope estimate based on assumptions he pulled out of the air. Virtually all the data-driven estimates are twice as high or more.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-63208517238672268292014-03-08T13:50:31.089-06:002014-03-08T13:50:31.089-06:00Please help me out here Shannon because I'm ha...Please help me out here Shannon because I'm having a real hard time understanding your explanation.<br /><br />Do the prosecutors in these cases inform the grand jury that they have not gotten around to testing these substances?<br /><br />This is just wierd....<br /><br />"Ladies and gentlmen officer Obie found this little bag containing white powder and it sure looks like cocain. It might be sheetrock dust but we reckon it really is cocain and we're going to get around to testing it one of these days. In the meantime, I'd sure apriciate it you'd return a True Bill for possesion of cocain against Mr. Bojangles here so we can get this ball a roling"Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-66792434571190322322014-03-08T13:36:12.107-06:002014-03-08T13:36:12.107-06:00Also, I'm sorry, I know you've been over t...Also, I'm sorry, I know you've been over this before; but I just recently read Scalia's concurrence in Kansas v. Marsh and my head just about exploded when he said that the wrongful conviction rate was .027 percent. <br /><br />I know this is old news to you, but it's new to me! "Red" Merriweather Coasthttps://www.blogger.com/profile/16462819680150178346noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-89648535933255596802014-03-08T13:21:20.146-06:002014-03-08T13:21:20.146-06:0025% is quite outside all other data relating to fa...25% is quite outside all other data relating to false convictions, if he is talking about that and not false statements from defendants?"Red" Merriweather Coasthttps://www.blogger.com/profile/16462819680150178346noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-7204149154349857362014-03-07T20:56:28.916-06:002014-03-07T20:56:28.916-06:00Yes, Harris is extrapolating from DNA exoneration ...Yes, Harris is extrapolating from DNA exoneration data, but given the point already made about how the trial penalty hammers people to take pleas or face very steep sentences, I don't think his estimate is off by much. Candace McCoy's research shows that the punishment for invoking your right to trial averages nine times the sentence obtained by a guilty plea. <br /><br />Too often all parties in the courtroom work group assume that if a defendant has a criminal record, they are probably guilty of something. <br /><br />In NYC some years back, young men of color were systematically framed by transit cops for "jostling" (essentially unconsummated pickpockting) or sexual abuse. The cops were just chasing the numbers to increase their chances for a promotion.<br /><br />When the scandal was exposed, the prosecutors' office responded by saying, "well, if you look at their criminal records, you can see that the cops are arresting the right people."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-51473148680898460292014-03-07T18:31:34.008-06:002014-03-07T18:31:34.008-06:00"Is a conviction based on an unconstitutional..."Is a conviction based on an unconstitutional law a case of actual innocence?"<br /><br />I'm not a lawyer, but IMO, yes.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-80037991870249079202014-03-07T16:58:35.670-06:002014-03-07T16:58:35.670-06:00This is quite an informed opinion on a very import...This is quite an informed opinion on a very important topic. The point is that prosecutors especially in Harris county are quick to "score" a conviction and therefore overlook mitigating issues on the defense side. The result is the state ends up coughing up 80k. My question to you is how is this different from cases like improper photography where the DA keeps charging people knowing full well the law will be found unconstitutional. Is a conviction based on an unconstitutional law a case of actual innocence? How can you be guilty of a crime that doesnt exist?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-69820273636075902632014-03-07T16:57:56.210-06:002014-03-07T16:57:56.210-06:00Shannon, I'm resorting to the "sheetrock ...Shannon, I'm resorting to the "sheetrock card" because it's the most prominent Texas example of multiple defendants being convicted via plea deals even though the drug evidence was never tested and turned out to be fake. You're claiming it never happens that innocent people plead out and that everyone in such situations thought the drugs were real. I'm pointing out a major, prominent example where that wasn't the case. How that relates to Godwin's law remains a mystery to me despite your (strange, convoluted) explanation.<br /><br />The original post suggested prosecutors should have drugs tested BEFORE finalizing plea deals, a stance you've said your own organization endorses. Honestly I'm not sure what you're upset about, much less how you get to nazi analogies.<br /><br />@3:16, all things considered, I think Harris' estimate is high. He's looking at the coterie of DNA exonerations, which for several reasons IMO don't extrapolate to ALL criminal cases. I've vetted the available estimates pretty carefully and the 1.5 to 2.5% is what I'm comfortable with. I know some have landed on higher estimates, one or two lower, but IMO the number most likely falls somewhere in the 1.5-2.5% range, or between 2,250 to 3,750 people currently in TDCJ.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-66404489731044398412014-03-07T15:16:44.777-06:002014-03-07T15:16:44.777-06:00But Grits, in his book, "Failed Evidence: Why...But Grits, in his book, "Failed Evidence: Why Law Enforcement Resists Science," David Harris estimates that "we should expect to see false confessions and statements by defendants in 25 percent of ALL cases." <br /><br />That suggests that your estimate do 1.5-2.5 percent is a tad low, especially in your state, where prosecutors are especially ferocious.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-45442549698461863832014-03-07T14:16:00.208-06:002014-03-07T14:16:00.208-06:00Scott,
Of course I know what Godwin's Law is....Scott,<br /><br />Of course I know what Godwin's Law is. And just as that observation holds that people are more likely to play the Nazi card the longer discussions like this go on, it seems that you're resorting to playing the sheetrock card, not because anything like that happened in any of the recent drug-case exonerations, but merely as an ad hominem attack to discredit the person who is refusing to agree with you. And you're better than that. So let's not go there.<br /><br />And for the record, I don't think prosecutors should get credit for pleading out these cases at all. But it's something of a Catch-22 and I understand why it happens, which is more than I can say for most people who immediately jump to uninformed conclusions (like you did). The problem is much more complicated and systemical than your initial dig at prosecutors. Frankly, that's true of almost everything that goes wrong in the CJ system, but as long as people want to shoot blame first and ask questions later, the problems won't ever get solved. And that's not something either side should want.Shannon E.http://www.twitter.com/TDCAAnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-85608056683417610592014-03-07T11:56:23.337-06:002014-03-07T11:56:23.337-06:00@ Red, Several times over the years, on this blog ...@ Red, Several times over the years, on this blog and elsewhere, I've compiled and analyzed all the available estimates on the prevalence rates of false convictions. My personal best guess is that 1.5-2.5% of TDCJ inmates did not commit the crime for which they are incarcerated. The higher estimates often look at too-small cohorts and lower estimates tend to be mostly ideological-based wishful thinking, not data driven.<br /><br />It's really not surprising when you think about it: People are convicted if guilt can be proven "beyond a reasonable doubt," not beyond any doubt. That means people can be and are convicted when there is still SOME doubt, and a 97.5-98.5% certainty rate more or less reflects that.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-27498451579897651942014-03-07T11:40:47.581-06:002014-03-07T11:40:47.581-06:00"there is no evidence in any of these recent ..."there is no evidence in any of these recent cases from the exoneration registry of foul play by law enforcement. None."<br /><br />Frankly, that makes me more upset, not less, that this happens. Foul play could mean a bad apple: one or two corrupt people in law enforcement cutting corners or setting people up. It could mean that an entire administration is corrupt from the mayors to the cops, like in Chicago. <br /><br />If actually innocent people are being sent to jail with no evidence of misconduct on the part of law enforcement, that means that the system itself doesn't work. <br /><br />(I know that the counter-argument is that wrongful convictions are extremely rare. But the only way to reliable estimate the number of wrongful convictions would be to take a random sample of convictions and check for actual innocence. As far as I'm aware, the nearest to this being done was the testing on the archived DNA in Virginia; that resulted in a 5% error rate for murder and sexual assault. http://www.urban.org/publications/412589.html) "Red" Merriweather Coasthttps://www.blogger.com/profile/16462819680150178346noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-85510113019599385472014-03-07T11:27:46.735-06:002014-03-07T11:27:46.735-06:00I was going to make a joke about how no innocent p...I was going to make a joke about how no innocent person pleads guilty, but then I read the comments and saw that people were actually believing it.<br /><br />Texas definitely needs to improve the crime lab situation (how many rape kits are on backlog? 20,000?), but I don't think that's a problem that can be solved by throwing more money at it. You need to ensure that the labs are doing quality work and that the science behind the testing is sound. Forensic science is a bit of a mess currently; it's probably a smarter move to spend more money on developing forensic science at this point.<br /><br />On the other hand, getting more public defenders is a problem you can fix by throwing money at it. We have the lawyers! Just hire them. "Red" Merriweather Coasthttps://www.blogger.com/profile/16462819680150178346noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-14097424020844805142014-03-07T10:46:12.413-06:002014-03-07T10:46:12.413-06:00Godwin's law? Who mentioned Nazis? Do you know...Godwin's law? Who mentioned Nazis? Do you know what <a href="http://en.wikipedia.org/wiki/Godwin%27s_law" rel="nofollow">Godwin's Law</a> is?<br /><br />Otherwise, I was discussing the Dallas sheetrock scandal and yes, there is evidence fake drugs were planted there.<br /><br />In the case described in this post, I only know of evidence that an innocent man was convicted before the facts were in. And as the commenter "Everybody Wins!" pointed out, you think prosecutors should get credit for both hurrying the false conviction so the charges won't be "hanging over their heads" and also for "freeing these defendants when the new information comes to light." <br /><br />We can agree to disagree over whether that's a wise use of prosecutorial discretion. But invoking "Godwin's law" is just head-scratchingly inaccurate on your part.<br /><br />Mike Godwin's an old friend of mine, BTW; editor at the Daily Texan when I ran their editorial page.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-4191544950254242832014-03-07T10:35:23.581-06:002014-03-07T10:35:23.581-06:00Scott, if you have any information indicating that...Scott, if you have any information indicating that fake drugs were planted on anyone in the cohort we are discussing, or that anyone in these recent exonerations was "set up," then by all means, share it. <br /><br />If not, then it's merely a pointless ad hominem attack, and I would encourage you to resist the urge to fulfill Godwin's Law. I expect that of your anonymous comment trolls, but not you.Shannon E.http://www.twitter.com/TDCAAnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-39642916019892722192014-03-07T09:57:50.073-06:002014-03-07T09:57:50.073-06:00Shannon, did defendants in the Dallas sheetrock ca...Shannon, did defendants in the Dallas sheetrock cases plead out "for possessing what they themselves thought were drugs," or because they were threatened with such long sentences that the truth didn't matter?<br /><br />As I said above, there is more than one way "these cases go."Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-63929290052578984382014-03-07T09:32:14.917-06:002014-03-07T09:32:14.917-06:00Scott,
For the sake of argument, even if prosecut...Scott,<br /><br />For the sake of argument, even if prosecutors were successfully opposing bond reductions every time a reduction was requested, that still would be a very small fraction of overall pre-trial incarcerations for low-level drug cases. It would be statistically insignificant for your purposes. <br /><br />IMO, the simplest explanation for why judges don't grant more pre-trial releases is that doing so represents the path of least resistance for them. But that's just my guess.<br /><br />If you want to fault prosecutors for pleading out defendants for possessing what they themselves thought were drugs, I'm afraid you'll have to find another angle.<br />Shannon E.http://www.twitter.com/TDCAAnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-72881182792689242452014-03-07T06:07:34.404-06:002014-03-07T06:07:34.404-06:00Not required by law, Shannon, but required as a pr...Not required by law, Shannon, but required as a practical matter in the real world.<br /><br />I blame judges, too, for not giving more personal bonds, and have done so often on this blog. But since my earlier comment was that prosecutors often oppose personal bond when the defendant can't make bail, I was referencing bail reductions as Ware was discussing and prosecutors do play a role in opposing those.<br /><br />On Travis County, for a while they were using more personal bonds than other big counties. But checking the most recent <a href="http://www.tcjs.state.tx.us/docs/AbbreRptCurrent.pdf" rel="nofollow">commission on jail standards report</a> just now, 31% of their local jail inmates are being held pretrial for misdemeanors and state jail felonies compared to 21% statewide, which surprised me. But I'd have to crunch the numbers for other jurisdictions to know if they're really the highest. May followup on that when I have some extra time. Thanks for the tip.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-88076456727693964392014-03-06T20:49:46.626-06:002014-03-06T20:49:46.626-06:00Scott,
I'm glad to hear that Mr. Ware checks ...Scott,<br /><br />I'm glad to hear that Mr. Ware checks with prosecutors before seeking a bond reduction--that is not required by law in non-3g cases, but it is certainly the professional way to seek to lower bonds already set by a judge. But bond reductions are rare.<br /><br />I've been talking about the initial bonds, the ones that apply to ~99% of offenders and which are established by judicially-determined bond schedules or set by individual judges themselves. Prosecutors have no say in those as far as I know (w/ one unique exception in El Paso applicable to certain cases). Now, Hollywood or Dick Wolf's Law & Order franchise may lead the public to conclude differently, but those movies and shows don't depict Texas law. That's why Texas prosecutors had to fight for legislative change about a decade ago to get the courtesy of notice and a right to a hearing before a judge reduced bonds in 3g (violent) cases. But that's never been extended to non-3gs, in part because nobody has the funding to pay for prosecutors to be at every bond hearing. So in Texas, initial bonds are set at magistration with no prosecutor (or defense lawyer, usually) present. Thus, I think you're going to have to lay that complaint at the judges' feet, not ours.<br /><br />BTW, someone recently told me that Travis Co has perhaps the highest rate of pre-trial incarceration for low-level offenders. Is that so? That surprised me, having worked there in the past.Shannon E.http://www.twitter.com/TDCAAnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-27701942733887269772014-03-06T18:58:14.942-06:002014-03-06T18:58:14.942-06:00So Shannon, I asked Mike Ware - a defense attorney...So Shannon, I asked Mike Ware - a defense attorney in Tarrant who was formerly head of the Dallas DA's Conviction Integrity Unit - about the veracity of your statement that "Texas prosecutors have ZERO role in pre-trial release on non-3g cases, so you can't blame them for a lack of bond; those decisions are made by the courts w/o input from prosecutors."<br /><br />He replied that, "Truth is that there is almost nothing prosecutors don't have a say in." While acknowledging that larger counties have bond schedules, he continued, "I have never asked to have a bond reduced without judge soliciting prosecutor input. Usually I go to prosecutor first."<br /><br />Perhaps you should doublecheck with your constituents, it doesn't sound like your perception of prosecutors' influence on bonds is entirely accurate.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-90190253630780410822014-03-06T14:51:00.284-06:002014-03-06T14:51:00.284-06:00Scott, I have no opinion on the trace policy in Ha...Scott, I have no opinion on the trace policy in Harris Co.; I can argue it square or argue it round. I wouldn't be surprised to see legislation addressing that issue again next session, though.Shannon E.http://www.twitter.com/TDCAAnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-43045503047864337442014-03-06T14:48:07.434-06:002014-03-06T14:48:07.434-06:00That flippant comment is rather uninformed, Scott....<i>That flippant comment is rather uninformed, Scott.</i><br /><br />Uninformed? Because the system takes a long time but a plea can be coerced in minutes?<br /><br />You get more ridiculous every time you write one of your prosecutorial apologies.Anonymousnoreply@blogger.com