Grits for Breakfast

Dallas jail population dropping as crime declines

2012-02-02T11:44:00.004-06:00

The Dallas County Jail right now houses roughly 7,800 inmates, according to comments by the Dallas County Sheriff's Office to the Texas Commission on Jail Standards this morning, down from more than 10,000 at its height. That's more than a 22% reduction, but even that may be low-balled. According to the most recent TCJS jail population report (pdf), as of Jan. 1 the Dallas Jail had just 5,741 inmates, which would amount to more than a 40% reduction, from the 10,000+ max.

This news comes on the heels of reports that Harris County (Houston) has 31% fewer inmates than their maximum just a few years ago. In both counties, crime has dropped significantly throughout the period that jail populations declined.

Kitchen culture behind bars

2012-02-02T10:09:00.001-06:00

Several female inmates from TDCJ's Mountain View unit have published a prisoner cookbook describing methods for (sometimes illegally) cooking with commissary items. Interesting.

'Sending a message' on graffiti: Two approaches

2012-02-02T08:40:00.001-06:00

Regular readers know Grits thinks "sending a message" though criminal penalties is one of the worst communication methods imaginable. Almost no one actually reads the laws, the media never reports on most of them, and when they do they get things wrong 1/3 to 1/2 the time. Besides, few criminals read the newspaper. If you want to "send a message," in general buying billboard space or TV time is a far superior method to any criminal-law one might pass, and that goes triple for crimes with very low clearance rates. Which brings us to two recent stories about "sending a message" regarding graffiti. The first arises out of Corpus Christi, where local officials have been obsessed with graffiti enforcement now for several years now, to little practical effect judging from continued public outcries and media hype over the problem. A story from KVII-TV this week made the "send a message" goal explicit:

As the war on graffiti vandalism rages, a word of warning from the people who's job it is prosecute taggers. They say you will be caught, arrested and more than likely will go to prison. It's the type of vandalism that's more than just a costly nuisance. It's a crime. Prosecutors want to send out a message to all "taggers" reminding them that this crime will get you prison time.

"You have to be held accountable for what you do...and that's why you're going to be doing time behind bars," says prosecutor Joe Mike Pena.

The problem with that message is that much of it is a bold-faced lie, particularly the contention that "you will be caught, arrested and more than likely will go to prison." At least for 99.9% of graffiti crimes (less than one tagger is arrested per 1,000 offenses), the overwhelming majority of offenses go unsolved and are not prosecuted.

How likely is it that taggers will go to prison? According to the Criminal Justice Impact Statement for a recent graffiti enhancement bill (discussed in this Grits post): "In fiscal year 2010, 212 offenders were placed on misdemeanor community supervision, 56 offenders were placed on felony community supervision, and 21 offenders were admitted to prison or state jail." So that's 289 people total convicted and sentenced for graffiti crimes in FY 2010 statewide, most of them juveniles. By contrast, there were hundreds of thousands of tags thrown up in Texas in 2010. The chances of getting caught and convicted are, in fact, minuscule. And even for those convicted, most of them (rightly) received misdemeanor probation, with just 7% going to prison. (mostly those who tagged a church, school, or community center, which now carries an automatic state jail felony charge).

Two recurring Grits themes are that heightened criminal penalties can't solve every social problem and that penalty enhancements have little effect on crimes with low clearance rates. Both observations apply in spades to graffiti crimes. The "message" sent by jacking up punishments for the handful of people caught is not only rarely delivered, it's in some ways a counterproductive one, serving to glamorize the activity for rebellious youth without actually solving the problem.

Meanwhile, a different and far more effectively delivered message about graffiti is being trumpeted in Dallas, where graffiti artist Shepard Fairey (the man who did the Obama Hope posters and was featured in Banksy's Exit Through the Gift Shop) has been hired to paint a dozen large, outdoor murals. Reports the Morning News (behind paywall):

Fairey and his team fly in on Sunday and begin scouting 12 to 15 locations on Monday before pulling out the paintbrushes on Tuesday. The end result will be at least a dozen giant murals (with one stretching 150 feet wide) in such communities as West Dallas, Oak Cliff and Deep Ellum. Highland Park is not on the list.

Dallas Contemporary, which revels in the edginess of Fairey’s art, commissioned the project. Its director, Peter Doroshenko, loves Fairey’s ability to provoke reaction, no matter where his eerily bold images leave their imprint.

Aside from two events feting Fairey, none of his art will be shown at the Design District museum, even as it foots the bill for the outdoor murals.

“We’re doing this project to go beyond our walls, our building,” says Doroshenko, who came to Dallas Contemporary 14 months ago and worked with Fairey on a project in the United Kingdom in 2006.

Doroshenko cites Fairey as one of several artists he hopes to bring to Dallas “who work in nontraditional or outdoor kinds of ways, so that you don’t have to travel to Toulouse or Tunisia to see their work. It’s here, in the city, where it will reach millions of people as they drive by on the freeway or on their way to work.” Fairey loves having an outdoor canvas, Doroshenko says, rather than having to confine his work to a museum. Fairey, like Doroshenko, revels in the notion of “adding art to a person’s everyday repertoire.”

Doroshenko calls the project “giving back to the community and on a grand scale.” He says he picked Fairey not just because he knows him but also because “all the street artists that work in Dallas or Texas are influenced by him.” Even city officials and private landlords have come to appreciate what Doroshenko calls Fairey’s “art intervention” in their communities.

This turn of events reminds me of a Grits headline from 2010: "Yesterday's graffiti is today's art and tomorrow's economic growth." Fairey's illegal tagging hobby has transformed him into an internationally known artist whose talents are so well recognized that he's now being paid (in Texas, no less) to do projects for which he previously would have been prosecuted.

So in Corpus Christi, prosecutors hope to "send a message" by prosecuting the one out of a thousand or so offenses where taggers are caught, while in Dallas they're sending a message with 150' wide murals that graffiti can be real art and that some graff writers must be viewed as true artists, worthy of the admiration of their peers.

Which "message" do you suppose will influence taggers more?

See related Grits posts:

Grits commenter played role initiating lawsuit over timely competency restoration

2012-02-01T09:30:00.002-06:00

The SA Express News had an editorial today praising a district court ruling last week requiring state mental hospitals to timely accept defendants for "competency restoration" who've been deemed incompetent to stand trial by the courts. Here's a notable excerpt:

In San Antonio, criminal defendants in need of a bed in a state psychiatric facility are routinely spending months in the Bexar County jail waiting for transfer.

Late last week, there were 17 inmates at the Bexar County jail awaiting transfer to a state hospital bed. Some of them have been in the county jail for almost 300 days.

In what many hail as a major court victory for the mentally ill in Texas, state District Judge Orlinda Naranjo has ordered the Department of State Health Services to transfer defendants who have been ruled incompetent to stand trial due to mental illness to a state psychiatric hospital within 21 days of receiving a judge's order, the Austin American Statesman reported.

That is indeed great news for advocates and the families of defendants with mental health problems who have fought long and hard against the criminalization of the mentally ill. Mental health patients need treatment and should not be held in local lockups. On average, mentally incompetent prisoners are spending up to six months in jail before being transferred to a state hospital.

The state attorney general's office has not yet decided if it will appeal the judge's ruling.

Complying with the judge's order will be a major undertaking. Over the last two years, there has been a waiting list of about 400 inmates for the 800 available state hospital beds.

I had forgotten about the backstory to this lawsuit when Grits wrote about it on Friday, but as it turns out this litigation actually originated - believe it or not - from a comment posted on this blog. As recounted in this 2006 post, the group Advocacy Inc. (which has now changed its name to Disability Rights Texas) first learned about the issue from a Grits post, filing the lawsuit after investigating the case of a commenter who turned out to be an attorney with an incompetent client. Of course, Beth Mitchell and the lawyers at Disability Rights Texas did all the work, and the situation is so messed up that surely litigation was inevitable, anyway. But I'm pleased as punch at the small role this blog played in initiating the process.

MORE: From the Texas Observer.

Jury: No liability, this time, but improvements needed in MH treatment at Travis County Jail

2012-01-31T14:37:00.002-06:00

In Travis County, a federal jury declared that, although jailers weren't the "proximate" cause of Rachel Jackson's death, but there were areas where the county's operation of its jail needs to improve. Reported Steven Kreytak at the Austin Statesman:

A federal jury in Austin ruled [Friday] that neither the actions of Travis County officials nor of a former jail psychiatrist caused the death of a mentally ill woman found dead in her cell in 2008. But in an extraordinary move, the jury issued a statement calling on the county to improve the operations of its jails.

Following the jury’s decision in the lawsuit brought by the family of 21-year-old Rachel Jackson, who died while in “psych lockdown” in the Del Valle jail, U.S. District Judge Sam Sparks agreed that the panel could read a statement into the record.

“While we cannot find that Travis County proximately caused the death of Rachel Jackson,” the foreman said while standing in the jury box, “we do see significant opportunity for improvement in the processes, documentation and communication within the Travis County Correctional center.”

Outside the courthouse, jurors declined to elaborate on the statement to a reporter.

In too many cases, jails and prisons substitute for mental health beds, and that appears to be what happened here, with fatal results. Jail facilities weren't created for this purpose, jail staff for the most part aren't trained for it, and in general the criminalization of mental illness has become one of the darkest stains tainting modern society. I'll be interested to learn more about the concerns underlying jurors' public statement.

RELATED: From Patricia Kilday Hart: "Help mentally ill on outside so they don't end up inside."

No indictments from Houston BAT van probe

2012-01-31T14:24:00.004-06:00

A grand jury investigating misconduct at the Harris County District Attorney's Office declined to issue indictments, but put out a stinging public statement critical of the DA's Office's handling of the affair. Reports Brian Rogers at the Houston Chronicle:

A Harris County grand jury ended its session Tuesday, ending a months-long investigation into the district attorney's office and the Houston Police Department's DWI testing vehicles with a blistering report, but no indictments.

"There was no evidence of a crime," said grand jury foreman Trisha Pollard.

Pollard signed off on a one-page report blasting the DA's office for "unexpected resistance" and accusing the office of launching an investigation into the grand jurors, the special prosecutors and judges.

The grand jury also harshly criticized Rachel Palmer, a prosecutor who invoked her fifth amendment right to refuse to testify.

"The stain upon the HCDAO will remain regardless of any media statements issued or press conferences issued by anyone," according to the statement.

Certainly, the spectacle of a prosecutor taking the 5th Amendment to avoid testifying was an almost absurdist display, and Grits cannot recall another DA called to testify before a grand jury in the fashion that occurred here. I'm not sure what if anything has been resolved, or what conclusions to draw. I'll look forward to reading a copy of the grand jury's report.

MORE: Big Jolly, who sees this as vindication for Pat Lykos, has posted the grand jury statement and Lykos' official response. Lykos portrays the grand jury proceedings as a witch hunt by her political enemies, and there is something to that assessment. But I also think the DA's Office and especially Houston PD bear responsibility in the matter. One of Lykos' prosecutors, Rachel Palmer, notoriously took the 5th (the right against self-incrimination) instead of testifying about activities performed on the job. That's a highly unusual development, and it's hard not to wonder if the outcome of the investigation might have been different if the ADA had testified. Lykos likely deflated the matter as a campaign issue, though, by testifying herself.

The DA's public statement declares, "Despite repeated public insinuations to the contrary, there was no criminal conduct in the operation of HPD BAT vans, nor was there suppression of evidence." "No criminal conduct" I'll accept, but the truth is Houston PD knew about problems with BAT vans in fall 2010 when the issues were raised by their own analysts, two of whom later resigned rather than participate in flawed forensics. It was only after defense attorneys found those ex-analysts and brought one of them to court that anyone in officialdom publicly acknowledged potential problems with BAT vans' accuracy. So while this may be the end of the runaway grand jury story (and HPD BAT vans generally, which are being phased out later this year), your correspondent sees little vindication for anyone coming from this episode, just an enormous politicized mess that pretty much tarnished everyone remotely associated with the process.

AND MORE: From Big Jolly.

Court-of-inquiry a unique Texas proceeding for seeking justice

2012-01-31T06:03:00.000-06:00

From Tim Cole's posthumous exoneration to a failed effort in the Todd Willingham case and now in the aftermath of Michael Morton's exoneration, defense attorneys have sought to use courts of inquiry, not always successfully, to ferret out injustice and police and prosecutor misconduct when official channels have been barred. The military has a much-different process with the same name, but according to the Texas Tribune, the type of "court of inquiry" sought in the Michael Morton case is unique to Texas, and the proceedings have been upheld as constitutional by the federal 5th Circuit. The Trib has a "Texplainer" column on these rare proceedings, which have "primarily been used in attempts to resolve issues related to wrongful convictions."

Chiefs' push to weaken eyewitness ID improvements could boost market for defense experts

2012-01-30T11:29:00.011-06:00

Law enforcement interests, both through the Texas Police Chiefs Association and individually, are seeking to undermine the new model eyewitness ID policy from Sam Houston State University's Law Enforcement Management Institute of Texas (LEMIT), produced under the auspices of a bill, HB 215, passed last year at the Texas Legislature.

LEMIT did a fine job creating the model policy (pdf), by most expert accounts, closely following the large body of research developed in the last three decades on preventing eyewitness errors. Many of their recommendations were included in best practices from the National Institutes of Justice as far back as 1999, so for the most part these are not new ideas. But some chiefs are balking at prescribing neutral witness instructions, as well as using blind administration and presenting photos sequentially. Animated by these complaints, the police chiefs association reportedly is attempting to develop its own, watered-down policy to promote among its members in lieu of the official one.

The first shot across the bow of LEMIT's model policy at the capitol came in a letter from McAllen Police Chief Victor Rodriguez (uploaded here) to Senate Criminal Justice Committee Chairman John Whitmire, offering a stream of red herrings and misinformation about the law and the new model policy. See also an informative FAQ (pdf) created by LEMIT in response to agency questions.

Under the new statute, LEMIT produced a model policy but law-enforcement agencies are not required to follow the university's advice. Local departments must enact their own "detailed written policy," including specific "procedures" in several different areas, by September of this year, but the law does not require them by any means to adopt the model. Soon after the Legislature left town, however, the Texas Court of Criminal Appeals gave departments a big, extra incentive to use LEMIT's version.

Before getting to that, however, it's worth disputing Chief Rodriquez's utterly bogus, central claim that "unless a law enforcement agency chooses to risk evidentiary admissibility of a photograph or live lineup in a criminal matter, that agency must prove up adoption of the LEMIT policy or the 'credible research' or proof of '[common acceptance]' behind that agency's adopted procedures." This is ... how may we put it delicately? A lie.

The new statute specifically says that "Evidence of compliance with the model policy or any other policy adopted under this article or with the minimum requirements of this article is not a condition precedent to the admissibility of an out-of-court eyewitness identification." (Emphasis added.) So there is literally zero, nil, zilch, nada chance that eyewitness testimony won't be admitted because of this law. "Our side" considered it a loss (I was lobbying for the Innocence Project of Texas on the subject), but the law simply did not give criminal defendants the means to keep eyewitness testimony out of evidence if lineups don't follow written policies, nor if written policies are inadequate.

Ironically, though Chief Rodriguez wants to blame the Legislature for his woes, the much more significant penalty for failing to follow best practices was laid down in October by the Texas Court of Criminal Appeals in a case called State v. Tillman (pdf). In Tillman, Texas' highest criminal court ruled that a judge abused his discretion by failing to allow expert testimony to tell a jury about flaws in a police lineup - a truly landmark ruling for that particular court.

Combined with HB 215, however, that ruling takes on even greater weight, informing us what the real "penalty" will be if departments adopt policies not based on the LEMIT model policy or credible research: The county may have to pay for expert witnesses for indigent defendants - or allow expert testimony for defendants with their own counsel - to explain how deviation from best practices might harm the accuracy of identifications. In other words, if a local department chooses not to follow the LEMIT policy, they have a right to do so and all witness testimony will still make it into evidence. But if a department failed to follow key best practices - particularly if they overtly chose to do so by deviating from the LEMIT policy - it seems hard (at least for this non-lawyer) to see how judges could interpret Tillman any way other than to require judges to admit expert testimony critical of the deviant policy - to do otherwise, according to Tillman, would constitute an abuse of discretion..

So no, eyewitness testimony will NOT be thrown out if local departments don't use LEMIT's model policy. But counties may have to pay for expert witnesses that wouldn't be necessary if law-enforcement agencies based their policies on science instead of habit and folklore. Further, LEMIT's model policy could provide courts a handy guideline as to whether a local policy deviates from best practices. Though at this point we may only speculate, Grits won't be surprised if the LEMIT policy becomes the de facto standard by which Texas judges analyze whether the defense gets a Tillman expert.

Finally, at the Innocence Project of Texas (IPOT, from whom your correspondent draws his main paycheck) we're planning to ask under open records for eyewitness ID policies at more than 1,000 Texas law-enforcement agencies this fall after the deadline passes for policies to be finalized. IPOT will evaluate policies based on compliance with LEMIT's published model policy, grading each to identify which followed best practices and which are deficient. So now judges have a standard to judge whether a deviant policy or procedure violates best practices (LEMIT's model policy), and by the end of the year they'll a handy list of departments whose base policies fail to pass muster.

It's true, then, that there will be a lot of pressure on local departments to simply adopt the LEMIT policy, with most of it coming from the judiciary and the court of public opinion, as opposed to any language in HB 215. Eyewitness testimony in all cases will remain admissible under the new law, regardless of what local policies are adopted or whether they're followed. But the CCA has created a greater incentive for compliance in Tillman than the Lege could last year muster. Color Grits unsurprised that there are police chiefs out there grousing about the new statute and the contents of the model policy, even if their complaints come a day late and a dollar short.

See related Grits posts:

Hate crimes statute seldom used

2012-01-30T09:27:00.002-06:00

I neglected to mention that at the Austin Statesman, Eric Dexheimer last week had a lengthy item in which your correspondent was briefly quoted critiquing Texas' seldom-used hate crimes statute, which has yielded just 10 successful prosecutions since Gov. Perry signed it into law in 2001. "'The law should punish bad actions, not unpopular or ignorant beliefs,' said Scott Henson, who writes the Grits for Breakfast criminal justice blog. 'It's another enhancement passed more out of political posturing than from good public policy or common sense.'"

From Grits' perspective, the hate-crimes statute flew in the face of the concept of equal protection under the law, creating an Animal-Farm type scenario where some are theoretically more equal than others. Of course, the same is true of nearly all "enhancements." E.g., when the livestock industry successfully seeks state-jail felony status for theft of a $35 goat, that means stealing from a protected class gets harsher penalties than stealing from you or me. The same theory underlay Texas' hate-crimes enhancements, and like so many special-interest driven enhancements (how many people are prosecuted for Texas' eleven oyster felonies, after all?), the statute in practice is seldom used.

Besides, aren't nearly all murders hate crimes? (Or at least the ones that aren't part of black-market business transactions?) Is the murderer's grim endeavor or the harm they reap worsened because the perpetrator indulged racist thoughts, or mitigated if they were thinking of unicorns and rainbows while dispatching their victims? I think not. Though it was enacted before this blog began, your correspondent disliked Texas' hate-crimes law at the time it passed and sees nothing to dislodge that view now that history has borne out most of its weaknesses and so few of the benefits touted by its proponents.

Houston Chron surveys employee discipline at county jail

2012-01-30T08:08:00.006-06:00

At the Houston Chronicle, James Pinkerton has a story today ("Discipline problems persist behind bars," Jan. 30) describing employee misconduct that spawned disciplinary actions and terminations at the Harris County Jail from 2008 to 2010. The article opens:

A female jailer ordered, without authorization, an entire cellblock of women prisoners to strip naked during a July 2010 search. She's still on the job.

Another jailer punched a seriously ill inmate as he lay in the infirmary in May 2010. The inmate died the next day, and the jailer's punishment: one day in jail.

Last year, a sergeant slugged an inmate so hard it took 14 staples to close a gash over his eye. The sergeant said the inmate raised his hands to hit him, but other jailers swore the inmate didn't. The sergeant was fired but not charged with a crime. He's fighting to return.

These incidents and dozens of others highlight how the Harris County Jail, one of the busiest in the nation, continues to experience problems similar to those cited in a 2009 U.S. Department of Justice report critical of the use of excessive force against inmates.

A Houston Chronicle review of disciplinary records indicates that from 2008 through 2010, more than 200 jail employees were disciplined for various offenses, some serious and others minor. Last year, the Sheriff's Office disciplined 88 employees working in detention, including jailers, deputies and civilians.

Their offenses included excessive use of force, having sex with inmates, mistakenly releasing dangerous prisoners including suspected drug dealers, sleeping on the job, and even leaving their post to have a 90-minute-long domino game. One jailer destroyed mail sent to prisoners, and another ruined a picture of an inmate's son by spraying it with cleaning solvent.

Read the whole thing; it's an interesting snapshot of an HCSO disciplinary process rarely glimpsed by the public.

Indeed, Grits' pitch in light of this coverage goes out to TV and print editors and local criminal-justice beat reporters across Texas and beyond: Pinkerton's story could be replicated via open-records requests for any county jail in the state. In fact, information requests about misconduct by Sheriff's deputies get MORE information than comparable requests in many larger police departments (at least those in municipalities which have adopted civil service under Chapter 143 of the Local Government Code) because their activities are governed by the much-more transparent Public Information Act (Chapter 552 of the Government Code). So it's more difficult under that statute (though by no means impossible) for agencies to conceal embarrassing documents. Without reporters like Pinkerton digging into public records, in most cases these stories would remain forever secret. Notably, spokesman Alan Bernstein told the Chron, "families are not told of incidents that happen in jail unless they cause death."

Of course, as is always the case, such anecdotes do not speak to the character or professionalism of every HCSO employee. In most law-enforcement and correctional settings, a minority of officers are responsible for a disproportionate share of misconduct allegations, and that's surely the case at HCSO. Still, the story gives outsiders an idea of the range of disciplinary challenges facing managers at one of the nation's largest jails. And it's certain they're not unique.

It's great that a city the size of Houston gets this sort of in-depth, research-based coverage, but there's no reason Pinkerton's methodology couldn't be reproduced by media in other jurisdictions. You never know what you'll find until you look.

Did APD detectives commit felony investigating Morton-Baker cold case?

2012-01-29T11:43:00.004-06:00

Police can lie to suspects to get a confession; that is well established law. But what, exactly is a lie? As it turns out, that was well established law, too, at the time Austin PD officers allegedly crossed the line to hoping Mark Alan Norwood would confess to the murder of Debra Baker. Austin police "doctored" a forensics report to try to get Norwood - now the prime suspect in the Christine Morton murder case for which her husband, Michael was falsely convicted and spent 25 years in prison - to confess to murdering Baker, reports Tony Plohetski this morning in the Austin Statesman ("Austin police use of doctored DNA report in interrogation raises questions," Jan. 29):

As his defense lawyers were working to free Michael Morton from prison because of a wrongful conviction that raised questions of prosecutor misconduct, Austin police doctored a crime lab report to use during the interrogation of a suspect in a related case, the American-Statesman has learned.

Austin police officials and Travis County prosecutors confirmed last week that they are looking into the techniques investigators used as they questioned Mark Alan Norwood during lengthy interviews in September.

The detectives used what Police Chief Art Acevedo called "an investigative prop" when seeking information from Norwood in the 1988 bludgeoning death of Debra Masters Baker in her home.

Officials at the state crime lab told Austin police cold case investigators that DNA tests had linked Norwood to the crime scene, officials said. But investigators did not yet have the written report, so they took a DNA report from a separate case, altered it to indicate it was from the Baker case and showed it to Norwood during the interrogation, officials said. Acevedo said the scientist who conducted the test also had authorized them to share the result.

Norwood didn't confess and has not been charged in Baker's death but remains a suspect, according to Austin police.

Norwood's lawyer and legal experts said they do not think the officers' actions will impede the case because Norwood did not confess, but several raised concerns about whether the detectives' actions may have violated laws on evidence tampering.

So if cops can lie, what's the problem here? Well, altering documentary evidence goes a bit beyond lying, and is clearly prohibited under not just one but two separate felony statutes. Thus, Chief Acevedo's artful attempt to re-frame the document as "an investigative prop," rather than an actual crime-lab report doctored to suit investigators' needs.

Lying to suspects, while clearly legal, isn't always a great idea and can have its own harsh, unintended consequences. Nobody should know that better than Austin PD, which has a long, inglorious history with false confessions, most famously with Christopher Ochoa's and Richard Danziger's false convictions, not to mention with the botched Yogurt Shop murders investigation, in which details of the crime scene were leaked and police obtained more than 50 false confessions, likely including the men they prosecuted for the crime. APD has a track record of reacting in a frenzy in high-profile cases to put maximum pressure on a suspect. (Witness Chief Acevedo's congratulatory comments to the community after public pressure apparently prompted a suspect's suicide: "I personally want to thank the people of Austin," he said. "We put pressure on this person with that community outpouring.")

Against that backdrop, doctoring lab reports to manipulate suspects strikes Grits as par for the course at APD, and indeed Chief Art Acevedo essentially defends the practice as well as the integrity of the investigators. Plohetski notes that:

Police are generally allowed to deceive suspects during interrogations in an effort to get a confession, but the creation of a false government document to use in such interviews raises legal questions. A March 2010 decision by the Texas Court of Criminal Appeals threw out the confession of a man in San Antonio after a detective obtained the statement by using a falsely created report showing the suspect's fingerprints were on a gun used in a homicide.

Tony might have cited not only the 2010 Court of Criminal Appeals case throwing out a confession when it was obtained with a fabricated document, but also Texas' Penal Code Sec. 37.09, which defines felony evidence tampering, in relevant part, as when someone "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding." Under that provision, evidence tampering is a third degree felony garnering as much as 2-10 years in prison, plus assorted fines, fees, etc..Or prosecutors could potentially apply Sec. 37.10 of the Penal Code, Tampering with a Government Record, which applies a similar penalty to anyone who "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record." Allegedly making up a phony lab report for use in an interrogation (one assumes they did it "to affect the course or outcome of the investigation") tracks almost exactly the language of activity made illegal under the Penal Code.

It should be said, these were not rogue detectives but instead the activity in question is apparently routine departmental pattern and practice. Indeed, the detectives in question, reports Plohetski, were ordered by their supervisor to manufacture the document.

The story quotes County Attorney David Escamilla saying he will take any appropriate action, but if these two penal code provisions are indeed the applicable law, one would expect it prosecuted in district court as a felony by DA Rosemary Lehmberg, whose office commendably uncovered the alleged misconduct. However, reports Plohetski, Lehmberg asked Escamilla "to oversee the inquiry because of the assistant district attorney's involvement in the case." (Grits hopes that doesn't mean he'll limit the investigation to misdemeanors; I don't understand why the prosecutor's role explaining the law to APD would require the DA Office's recusal.)

Surely the relevant felony statutes were taught to investigators during their training (if not, you can be sure ignorance of the law, in this case, will be treated by the civil service system as an excuse). Both existed long before the 2010 court ruling, though Chief Acevedo acts in the story like this is something new under the sun that would have changed departmental practices had he known about it. Either way, it's the actual fabrication of the document that may get detectives in trouble (or, IMO more likely, not). If detectives had told Norwood a lie about the report's contents and he believed it, they'd fall well within the realm of legality, whatever one may personally think about the tactics of deception in interrogations. But they allegedly went several steps further.

Whatever excuses Chief Acevedo wants to make for his detectives, the law limits them just like everybody else. And if it turns out detectives were never trained on these longstanding penal code provisions, much less recent court rulings governing Texas interrogations, he and his command staff may need to find a mirror to accurately place blame for Austin PD instructing its detectives to commit felonies in the course of a cold-case homicide investigation.

MORE: See a Statesman editorial on the topic.

Childress boot camp 90% empty amidst questions about value, recidivism

2012-01-29T09:21:00.000-06:00

A lingering anachronism from a failed social experiment, the Amarillo Globe-News ("Boot camps: Learn new or pay later," Jan. 26) describes a boot camp facility that barely receives commitments these days (370 out of 400 beds are empty), as well as debates within criminal-justice circles over whether such programs make sense given well-documented evidence that they do not reduce recidivism. Here's an excerpt from the article by Joe Gamm:

Criminal Justice officials would not permit an Amarillo Globe-News reporter access to the Roach Unit near Childress, but a prison official offered a small glimpse into life behind the fences.

“It involves physical activity and community projects,” said Criminal Justice spokesman Jason Clark. “They have accelerated GED projects over there. They are inmates who are sentenced through the district courts — they are not prison inmates. There are only 30 people in there right now.”

The unit has 400 beds available for the boot camp — 370 remain empty.

Boot camps were the rage nationwide in corrections circles in the late 1980s and early ’90s, but faded away as questions emerged about whether they prevented recidivism.

Studies conducted by the U.S. Justice Department, National Institute of Corrections and academia showed boot camps weren’t effective programs, said Terry Easterling, probation director for Potter, Randall and Armstrong counties.

As the programs closed, a 2003 Justice report, “Correctional Boot Camps: Lessons From a Decade of Research,” concluded that corrections officials should learn from boot camps’ failure to reduce recidivism or prison populations. The report said corrections personnel should emphasize programs to ease offenders’ re-entry or re-integration into their communities. Corrections systems should offer more treatment programs, the report said.

The camps evolved from early ’80s Scared Straight programs, said Easterling said, but probation officials remain divided about their effectiveness.

See related Grits posts:

Montgomery County seeks to reduce jail costs from mentally ill

2012-01-29T08:54:00.001-06:00

The Conroe Courier yesterday had the story of a new mental health docket in Montgomery County (using "managed assigned counsel," whatever that means) created with a grant from the Texas Indigent Defense Commission aimed at diverting mentallly ill defendants from the jail:

In the past few days, the county launched its managed assigned counsel program for indigent defendants to focus on representing defendants with mental health issues. Sara Forlano, a former assistant county attorney for Montgomery County, recently left private practice to start up the new program.

The county also will have a mental health court docket to closely monitor probationers with serious mental illness, according to a press release. The programs were created through a $487,000 grant from the Texas Indigent Defense Commission, and supported by matching funds from the county.

The managed assigned counsel would work with an oversight board, whose members commissioners approved in February.

“The goal of this program is to lower the rate of recidivism,” Judge Cara Wood, of the 284th state District Court, stated in the release. “There is a high rate of recidivism among this population.”

Williamson County saved $3.2 million from 2005-08 through reduced jail bookings and necessary medications in jail, while Bexar County has saved “at least” an estimated $5 million annually through a similar program, Wood previously told commissioners.

“We anticipate the same or similar savings to our county,” she said in February. “And we never want to lose sight that it’s the right thing to do.”

Wood previously said approximately 600 indigent defendants would be served by the program.
The cost to house a mentally ill person in jail is about $55,000 per year, while the cost for a typical inmate is about $20,000 a year, she said.

Uncaging America requires 'a thousand smaller sanities'

2012-01-28T07:44:00.002-06:00

At The New Yorker, Adam Gopnik this week has a remarkable article, "The Caging of America," which Grits recommends as a must read. If nothing else, it prompted me to purchase a copy of the late Bill Stuntz's book, The Collapse of American Criminal Justice, which arrived yesterday by post. Here's Gopnik's description of Stuntz's thesis:

William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong
warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life.

You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.

Read all of Gopnik's piece, but I wanted to point out a few other notable items from the story. First, he articulates ably the central conundrum of modern mass-incarceration in America: States that incarcerated their populace at lower rates generally saw even larger crime declines than high-incarceration states like Texas. New York, where crime declines doubled the national average, is the iconic example:

One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” [criminologist Franklin] Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison.

The secret to New York's super-high crime reduction during a time of de-incarceration, writes Gopnik, stemmed from "small acts of social engineering" as opposed to focusing on arrests and convictions. According to this view, New York City's experience undermined the "supply side" theory of criminal justice that "The only way to stop crime was to lock up all the potential criminals." Writes Gopnik:

In truth, criminal activity seems like most other human choices—a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.

Further, observes Gopnik:

Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things—just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime.

Grits would add the rise of the internet and video gaming to that list of non-law enforcement factors. (Anything that takes up lots of young men's time in benign activities will IMO reduce crime.) Gopnik notes that "Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either."

There's much more in the lengthy article; these were just tidbits. But it's a fascinating piece exploring some of the most thoughtful, contemporary literature in print on the subject. I'll close with Gopnik's expression of an incrementalist philosophy that in many ways mirrors this blog's approach to criminal-justice reform since Grits launched in 2004:

Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities.

TX conviction overturned because of failure to challenge junk sciene in child death case

2012-01-28T05:58:00.001-06:00

Via PBS Frontline and ProPublica, a conviction for the death of a child was overturned this week by the Texas Court of Criminal Appeals because the defendant's attorney failed to challenge bogus medical evidence presented in the penalty phase of the case that the infant had been sexually assaulted:

The Texas Court of Criminal Appeals [on Wednesday] set aside the conviction of Ernie Lopez, an Amarillo man found guilty in 2003 of sexually assaulting six-month-old Isis Vas. The baby died shortly after the purported attack.

Lopez has been serving a term of 60 years in Texas prison for the crime. But a joint reporting effort by ProPublica, NPR, and PBS "Frontline" last year explored the possibility that Lopez might be innocent.

In the years since Lopez's trial, a host of physicians have reviewed the medical evidence in the case, raising questions about the soundness of his conviction. Many of these specialists have come to believe that Vas actually died of natural causes, and that Lopez never assaulted the child at all.

During a tearful prison interview, the inmate insisted he wasn’t a sex offender and killer. "That's not my character," he said. "That's not who I am."

"We are very pleased with the Court of Criminal Appeals' decision to set aside Ernie’s conviction," said one of Lopez’s attorneys, Heather Kirkwood, in an email. "The Texas courts deserve ample recognition for the careful review of the record that led to today’s decision."

The Lopez case highlights the growing international controversy about the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people have been wrongly accused of killing children based on questionable medical evidence, and California Gov. Jerry Brown is currently considering commuting the sentence of a grandmother convicted of fatally shaking her 7-week-old grandson.

The Texas court didn’t rule on Lopez’s culpability and did not set him free. Instead, the court concluded that Lopez received ineffective legal representation during his trial because his lawyers failed to challenge the prosecution’s medical evidence.

UPDATE: The Potter County DA says he will re-prosecute the case.

"Old Behind Bars"

2012-01-27T11:17:00.000-06:00

From a Human Rights Watch press release:

Aging men and women are the most rapidly growing group in US prisons, and prison officials are hard-pressed to provide them appropriate housing and medical care, Human Rights Watch said in a report released today. Because of their higher rates of illness and impairments, older prisoners incur medical costs that are three to nine times as high as those for younger prisoners.

The 104-page report, “Old Behind Bars: The Aging Prison Population in the United States,” includes new data Human Rights Watch developed from a variety of federal and state sources that document dramatic increases in the number of older US prisoners.

Human Rights Watch found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.

“Prisons were never designed to be geriatric facilities,” said Jamie Fellner, senior adviser to the US Program at Human Rights Watch and author of the report. “Yet US corrections officials now operate old age homes behind bars.”

Long sentences mean that many current prisoners will not leave prison until they become extremely old, if at all. Human Rights Watch found that almost 1 in 10 state prisoners (9.6 percent) is serving a life sentence. An additional 11.2 percent have sentences longer than 20 years.

A Texas-based fact-bite from the report: "In Texas, although elderly inmates represent only 5.4 percent of the inmate population, they account for more than 25 percent of hospitalization costs. The healthcare cost per day in fiscal year 2005 for an elderly offender was $26, compared to $7 per day for the average offender.[180] In fiscal year 2010, the state paid $4,853 per elderly offender for healthcare compared to $795 for inmates under 55.[181]"

Judge: State mental hospitals must take incompetent inmates within 21 days

2012-01-27T07:01:00.008-06:00

Big news for mentally ill defendants in Texas declared incompetent to stand trial, not to mention the state agency that is supposed to provide "competency restoration" services, which presently has a months-long waiting list. After a court ruling this week, such long delays have been deemed unconstitutional and state mental hospitals have been ordered to begin taking inmates within 21 days after they've been declared incompetent. Reports Andrea Ball at the Austin Statesman ("Judge: Mentally incompetent inmates being kept in jail too long," Jan. 26):

Texas routinely violates the constitutional rights of mentally incompetent prisoners by forcing them to stay in jail for up to six months before moving them to psychiatric hospitals, a Travis County judge ruled this week.

State District Judge Orlinda Naranjo ruled that the Department of State Health Services must start moving "forensic commitments" — people accused of crimes who have been ruled incompetent to stand trial because of mental illness — to state psychiatric hospitals within 21 days of receiving a judge's order. Over the past two years , the average prisoner spent six months in jail waiting for a hospital bed, the ruling states.

"Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time violates the incompetent detainees' due process rights as guaranteed by the Texas Constitution," Naranjo wrote.

A final order that would specifically lay out how the health department should proceed has not been issued, said Tom Kelley , spokesman for the attorney general's office. That agency has not decided whether it will appeal the case. Right now, there is no timetable for when the changes might be instituted.

I contacted the attorney in the case from the group Disability Rights Texas, Beth Mitchell, who forwarded a copy of Judge Naranjo's ruling (uploaded here on Google Documents).

The lawsuit is aimed at the Commissioner of the Department of State Health Services, and while everyone thinks it'd be a good idea to reduce waiting times, the decision raises as many questions as it answers. The state cut state hospital funding and other mental health services this year, so seeking more resources in the near term will be like squeezing blood from a stone. Meanwhile, the average waiting list for beds in 2011 was about 300 people, wrote Judge Naranjo, with about 800 beds designated for "forensic" use.

How will DSHS comply with this ruling or will they balk and appeal? If they comply, will they contract for beds, and if so where, and with what money? Will they shift more beds to forensic purposes, and if so what impact will that have on other severely mentally ill folks with civil commitments (69% of state hospital patients, says the ruling)? Will the Legislative Budget Board authorize extra interim expenditures - as they did for the $5 million per month extra being spent on TDCJ healthcare - or will they let the system limp along, noncompliant, until the 2013 session? And what remedy might Judge Naranjo be able to muster to compel them to act sooner? ¿Quien sabe?

This is a welcome ruling, but it doesn't manufacture extra hospital beds out of thin air. Perhaps, though, it will set in motion a process that forces the Legislature to focus on the question much more seriously, and immediately, than they have in the past.

23% of Texas prison spending outside of TDCJ's budget

2012-01-26T14:50:00.000-06:00

According to a new report (pdf) by the Vera Institute, "Texas taxpayers pay an average 23 percent more for state prisons than the state’s annual corrections budget reflects," reports Mike Ward at the Austin Statesman: "The new report by the Vera Institute of Justice, a New York-based research organization that tracks criminal justice trends, calculates the state’s total costs for its adult corrections and prison programs at $3.3 billion — almost $783 million higher than the $2.5 billion annual budget for the Texas Department of Criminal Justice." Wrote Ward:

While Texas’ costs were 23.7 percent higher with the associated additional costs, other states ranged from 1 percent higher (Arizona) to 34 percent (Connecticut). Texas was one of six states — Connecticut, Illinois, Missouri, New York and Pennsylvania — where between 20 and 34 percent of the corrections budgets were outside the prisons system budget.

When all costs are considered, the annual average taxpayer cost in these states was $31,166 per convict, according to the study. In Texas, the cost is $21,390 a year per convict.

See the full report, The Price of Prisons: What Incarceration Costs Taxpayers, here.

Factors outside of TDCJ's budget included employee benefits and taxes, underfunded pension benefits and retiree health contributions, retirement costs, judgments and claims, and statewide administrative costs. I wonder what the folks at the Legislative Budget Board would have to say about Vera's calculations, and whether they need to update their Uniform Cost Report (pdf) on corrections as a result?

SCOTUS expands scope of Fourth Amendment in divided 9-0 ruling

2012-01-26T14:17:00.010-06:00

At the US Supreme Court case this week, the opinion in US v. Jones on GPS tracking of private vehicles was a fascinating piece of jurisprudence. Ostensibly a 9-0 decision, the only thing all nine justices agreed on was the bottom line that "the decision of the Court of Appeals must be affirmed," and none of them for precisely the reasons on which the lower court based its decision!

To make matters even more confusing, as Tom Goldstein pointed out at SCOTUSBlog, most of the mainstream media misinterpreted the opinion to say a warrant is required to use GPS tracking on a personal vehicle. But the ruling does not address the warrant requirement, only whether the GPS tracking constituted a "search."

What's the distinction? The Fourth Amendment only bans "unreasonable" searches without a warrant, but the courts have carved out wide swaths of legal territory where warrantless searches are routinely allowed. Wrote Goldstein, "The government probably conducts fifty times as many warrantless searches a day as warrant-based searches. The government can sometimes conduct warrantless searches on less than probable cause, as when a police officer pats down someone on the street or TSA puts carry-on luggage through an x-ray machine." I'd also add consent searches at traffic stops and searches incident to arrest as examples of warrantless searches. They're far more common than search warrants, and there's no guarantee this ruling will require a warrant in every instance GPS is used by federal agents, particularly when it's used for a relatively brief period of time.

In an earlier post, Goldstein discussed the breakdown among justices as insightfully as I've seen on this case:

I think that the correct way to understand the case is to read it as having two separate majority opinions. This odd alignment occurs because Justice Sotomayor agrees with both theories: she agrees with the majority “at a minimum” (Sotomayor op. at 1) and also seemingly agrees with the concurrence’s “incisive” conclusions (id. at 3). Justice Sotomayor does not formally join the Alito opinion, but her sympathy for its finding of a Fourth Amendment “search” in GPS monitoring is fairly obvious, as she expresses a broader view of privacy than any other member of the Court.

Here is the upshot. Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view. Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.

Votes on Fourth Amendment questions tend to defy partisan makeup. In Jones, basically court conservatives and Sotomayor sided with Scalia for the majority opinion expanding the Fourth Amendment's scope, while Alito teamed up with those considered the "liberal" wing to denounce the expansion and critique Scalia's judicial activism.

Seldom do 9-0 rulings reveal such sharp, underlying disagreement. But that's not the biggest story coming out of the case, which surely marks one of the most important moments in Fourth Amendment jurisprudence in the last 50 years. As Orin Kerr pointed out at the Volokh Conspiracy, Scalia's majority opinion articulated a new test for what constitutes a search, reaching back to historic court precedents based on property rights as opposed to modern jurisprudence based on a "reasonable expectation of privacy," first articulated in the Katz decision in 1967. That case, which dealt with an eavesdropping device planted in a phone booth (ask your parents or watch an episode of Dr. Who if you don't know what that is), found that “the Fourth Amendment protects people, not places” abandoning the "trespass" model.

Scalia's opinion, though, demands that a defendant's "Fourth Amendment rights do not rise or fall with the Katz formulation" and makes the claim that "Katz did not narrow the Fourth Amendment’s scope." That's a matter of opinion and I surely disagree with it. I think Katz significantly narrowed the Fourth Amendment's scope by placing the focus almost solely on "reasonableness," and that this opinion reinforcing other aspects - in particular, the enumerated, protected places and items - represents a welcome corrective, broadening the Fourth Amendment's scope instead of narrowing it for the first time in decades.

Regardless, according to Scalia's most recent pronouncement, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." So going forward, the court has effectively added a new definition of what is a search while keeping the old one intact, expanding the scope of the Fourth Amendment in some as-yet-to-be-defined way.

Though I happen to agree with Scalia's policy choice in this case, it's pretty clear he's the one adding to Fourth Amendment jurisprudence, expanding the definition of a search beyond its Katz-based limits. Justice Alito called the majority opinion "unwise," declaring that "It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial." For Alito, as the court had expressly declared in its Kyollo ruling, the Katz opinion “decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property,” which is certainly how this non-lawyer always understood it. While IMO Alito's concurrence accurately reflects the trajectory of Fourth Amendment stare decisis, Scalia's back-to-basics approach revitalizes aspects of the Fourth Amendment that the Katz approach brushed past too breezily in the name of reasonableness.

Justice Sonia Sotomayor received a great deal of attention for her concurrence, in which she expressed the fear that “GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may 'alter the relationship between citizen and government in a way that is inimical to democratic society.'” (I'm glad somebody said it!)

Even "more fundamentally," wrote Sotomayor, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Hear, hear! That indeed is the great dark cloud looming over Americans' privacy frontier. Too bad the court's second-most junior justice couldn't get any of her colleagues to sign onto the sentiment that the court should address the question.

Just to mention it, for us here in Texas this ruling only applies to federal agents, as we already have a requirement that law-enforcement get a court order before placing a "mobile tracking device" on your car.

MORE: From Lori Andrews at The Crime Report. Here's a related editorial from the Houston Chronicle.

Red-light cameras in Houston and the price of democracy

2012-01-26T10:23:00.000-06:00

Some in the Houston media are giving the mayor and city council heat for a proposed settlement with its red-light camera contractor (ATS) - delayed for two weeks at the Wednesday city council meeting - that may eventually cause taxpayers to bail out the contract, which was supposed to be paid solely with red-light ticket fines. But under the circumstances, the settlement seems like a reasonable, if not an inevitable result.

Here's the extenuating circumstance: A citizens group gathered by gathered signatures to put the issue on the ballot, and a majority of Houstonians voted against red-light cameras. Later, a federal judge said the plebiscite couldn't override the city's contract with the red-light vendor, but the majority of city councilmembers, including the mayor, decided to succumb to the will of the voters. So the city council first made an unpopular decision, was rebuffed at the polls by their constituents, and now faces expenses associated with undoing a hastily implemented contract, which turns out to have just been a bad idea that's caused them nothing but grief.

Casting another fly in the ointment, brothers Michael and Randy Kubosh, who launched and funded the referendum drive against the cameras, got the 5th Circuit Court of Appeals on Tuesday, the day before the city was to consider the settlement agreement, to make them a party to the suit in order to challenge the judge's ruling that the plebiscite was illegal. That prompted the city attorney to recommend against the settlement with ATS unless the Kuboshes dropped out of the suit. The council delayed the decision for two weeks to sort things out.

What a mess. Politically, the Kuboshes have won the red-light camera fight, with even camera proponents like the mayor now toeing the no-more-cameras line. Legally though, their fight has morphed from one over taking down red-light cameras to a different, unrelated battle over the limits of initiative and referenda, and the new focus could disrupt their original political objective. I'm not sure quite how I feel about that. Part of me wishes they'd have declared victory and moved on.

From Grits perspective, given the city's contractual obligations and federal court rulings in the case, the settlement looked like a good deal. Kuff points out that, with some $3 million in the bank, "the up front payment and most of the first year’s payment after that are covered. The city – presumably, an agent on their behalf – would take over collection duties from ATS. We’ll see how that goes." So if the taxpayers are on the hook, it won't be for at least another couple of years, and maybe not then depending on collection rates.

How much might taxpayers eventually have to pay? The total owed is $4.8 million, but a local TV station reported the city had $2.3 million in the bank while the Mayor's office told Kuff they had $3 million in that account. So taxpayers could be on the hook for $1.8 to $2.5 million judging from that range of estimates. Mistakes can be costly, in politics and life. OTOH, in the long run Houston drivers will save a LOT more than $2.5 million in fines from having the cameras taken down, and they pay taxes, too.

(BTW, Kuff mentions another upcoming Texas plebiscite on red light cameras: "Finally, in red light camera news elsewhere, League City residents will vote on whether or not to extend that city’s contract with a red light camera company. The contract runs through 2014, and a proposition about it will be 'in the next special municipal election', whenever that is. Red light opponents have a pretty good track record in these elections, and I’m sure they will be gunning for this one as well.")

The red-light camera fad is an example of seeking criminal-justice solutions to engineering problems out of essentially a financial motivation. Lengthening yellow-light times at those intersections by one second would do more than cameras and tickets to reduce accidents, but that wouldn't have generated the new revenue stream. (They can and should still lengthen yellow-light times at problem intersections, in fact.) Perhaps it was a costly lesson, but if the settlement gets done, Houston can chalk up that $1.8 to $2.5 million to the price of democracy.

Upward budget pressure at crime labs

2012-01-25T13:43:00.001-06:00

A pair of stories from out of state underscore two sources of upward budget pressure at crime labs that Grits suspects apply equally here in the Lone Star State. Crime labs are expensive, labor-intensive operations, and Texas and other states have traditionally underinvested in them, leading to significant backlogs. Meanwhile, a combination of court rulings and technological innovation will ratchet up demand considerably for these services in the near term.

First, re: court rulings. In Melendez-Diaz and subsequent cases, Justice Anontin Scalia has led a US Supreme Court majority in reinvigorating the Confrontation Clause, requiring crime lab experts to testify in person (in order to be cross-examined) instead of simply sending written reports which cannot be interrogated. The inevitable result is crime lab scientists going to court more often, and in Arkansas, 42% of crime lab scientists' courtroom trips last year did not result in giving testimony, reported AP (Jan. 22):

The Arkansas Democrat-Gazette reported Sunday (http://bit.ly/wP2ZHQ ) that lab analysts such as DNA specialists, drug chemists and medical examiners traveled to county courthouses around the state but ended up not testifying 238 out of 573 times last year. That means 42 percent of the lab experts' court trips didn't yield any testimony in 2011.

I've never seen similar data regarding Texas crime labs, but I'll bet the Arkansas situation is not unique. After Melendez-Diaz (2009), it's almost inevitable crime lab scientists would go to court more often without testifying. Certainly the SCOTUS justices were aware of that fact during their discussion at oral argument. There's a pricetag associated with that judgment, however, and this story out of Arkansas is the first time I've seen somebody put a dollar figure to it.

Grits was also interested to see a story out of Connecticut, where the overwhelmed state crime lab established new guidelines discouraging agencies from submitting evidence:

Police agencies across Connecticut are now being asked for the first time to limit their submissions to the state lab under new guidelines that took effect Jan. 1. The state also plans to hire 25 to 35 new lab workers to reduce the backlog to a manageable level, but it may take two to three years before the new employees are trained and ready to work, said Michael Lawlor, criminal justice aide to Gov. Dannel P. Malloy.

The number of DNA cases that have not been started at the forensics lab in Meriden skyrocketed from less than 250 in mid-2006 to nearly 3,900 last year, according to the state Department of Emergency Services and Public Protection, which oversees the lab. During the same time period, the number of lab workers has decreased about 10 percent to 90. The wait for DNA testing in many cases is more than three years.

If no extra staff were added, officials say the lab's DNA unit by April 2013 would only be able to perform testing in felony cases that are reaching the statute of limitations for prosecution. The lab wouldn't be able to test samples in hundreds of other criminal cases.

The lab is also dealing with backlogs in other types of evidence testing, including nearly 1,700 firearms cases and 1,400 latent fingerprinting cases.

The state lab's backlog follows a national trend. DNA casework backlogs at labs across the country increased from about 38,000 in 2005 to nearly 112,000 in 2009, according to the latest available U.S. Justice Department statistics. In addition to an increase of samples from crime scenes, most states have passed laws requiring DNA testing of criminals, adding to many labs' backlogs.

The advent of "touch DNA" and the expansion of DNA evidence to nonviolent offenses like burglary mean the near-term growth potential for DNA examiners may be limited only by how much state and local governments are willing to pay for them. Add to that forensic scientists spending more time in the courtroom away from the lab, and crime labs are being asked to do much more with fewer scientists available to perform the tasks.

This problem isn't going away: State budget writers will be grousing about crime labs as money pits for many years before lab capacity finally catches up to demand.

Blind administration would improve accuracy of forensics

2012-01-25T10:12:00.001-06:00

The Economist argues that even the most powerful forensic tools, including DNA can be tainted by "cognitive bias" when scientists are given too much "contextual information" about the case, citing a study where DNA analysts unfamiliar with case details were less likely to find a match than the original examiners who knew the case details. The magazine grants that:

one example does not prove the existence of a systematic problem. But it does point to a sloppy approach to science. According to Norah Rudin, a forensic-DNA consultant in Mountain View, California, forensic scientists are beginning to accept that cognitive bias exists, but there is still a lot of resistance to the idea, because examiners take the criticism personally and feel they are being accused of doing bad science. According to Dr Rudin, the attitude that cognitive bias can somehow be willed away, by education, training or good intentions, is still pervasive.

Medical researchers, by contrast, take great care to make drug trials “blind”, so that neither the patient nor the administering doctor knows who is receiving the drug being tested, and who is getting a control drug or placebo. When someone’s freedom—and, in an American context, possibly his life, as well—is at stake, it surely behooves forensic-science laboratories to take precautions that are equally strong.

Blind administration turned out to be a key reform for eyewitness identification, and your correspondent has long believed the same approach is justified in other forensic disciplines. Why does a DNA analyst need to know case details before deciding if two samples match? Not only is it irrelevant to the analysis, it may actually turn out to reduce its accuracy.

Liberty County lowers jail pop nearly 2/3, private contractor wants to up rates, county may de-privatize

2012-01-23T07:54:00.002-06:00

Remarkably, Liberty County has reduced its local jail population by nearly 2/3 since early 2011 simply by issuing more personal bonds to low-risk defendants, reported the Cleveland Advocate ("County's jail population down, but companies now asking for more money per inmate," Jan. 22):

Liberty County is already seeing a reduction in costs for the operation of the county jail thanks to a plan initiated by 253rd District Court Judge Chap B. Cain and supported by County Judge Craig McNair, County Court-at-Law Judge Tommy Chambers and 75th District Court Judge Mark Morefield to reduce the inmate population. Morefield discussed the plan as guest speaker of the Cleveland Rotary Club luncheon on Jan. 18

According to Morefield, at the time the plan was put into place, the county was spending 11 percent of its total budget, around $3.85 million, to fund the county jail. Much of the burden had to do with the fact that non-violent offenders were not being released because they were unable to pay their bond.

“It is not about overcrowding. It’s about the expense to the county and ultimately the taxpayers of Liberty County,” said Morefield. “The plan is designed to release low-risk inmates. Give them a PR (personal recognizance) bond and get them out of jail and off the fee list. With PR bonds, there hasn’t always been oversight, but our plan alleviates some of the concern.”

In early 2011, there were 372 male and female inmates in the county jail. For each inmate, the county was required to pay $46.50 to the company contracted to manage the jail, Community Education Centers (CEC).

That equated to around $17,000 per day in costs to the county for housing the inmates.

When the judges met in April prior to the plan being implemented, the inmate population had dropped, but the cost to the county was still around $10,000 per day. According to Morefield, the recent inmate population has dropped to 132.

“That is still not sufficient. We ought to be able to get it down to 100-110,” he said.

While saving county taxpayers is the objective of the plan, the judges are not totally focused on money matters.

“We would never sacrifice the safety of our citizens for economy,” said Morefield.

Liberty County's approach works for one simple reason: The local judiciary led the effort and that's who actually makes the decision regarding whether defendants must put up bail. Any objections by local bail bond companies were apparently overruled and the DA, judging from comments in the article, didn't fight the change, so this is a model that may not be replicable elsewhere.

There's a kicker, though: The private prison company which manages the facility, alarmed by declining inmate numbers (and the state's closure of a small intermediate sanctions faciliity housed at the jail), wants to raise the county's per-inmate rate, wiping out savings to the taxpayer from all their hard work. Reported the Advocate's Vanessa Brasher:

The judges’ plan, having saved the taxpayers millions, may have inadvertently forced the county to no longer outsource the jail’s operation.

The county is currently accepting bids for the jail contract. Morefield said companies submitting bids are apparently aware of the judges’ inmate reduction plan. All of the bids received so far are set on a sliding fee scale.

“One bid said that if the inmate population goes below 200, the cost per inmate goes from $63 to $68 per day. If we work really hard to decrease the inmate population, the cost will go up to $70 per day,” said Morefield. “They are taking all the incentive out of it.”

Morefield feels the county is capable of managing its own jail.

“The prevailing thought any time the government undertakes a project is that the government will pay 1.5 times for something. Government is wasteful. I challenge that thinking that government cannot compete with the private sector. I advocate that you talk to county commissioners about the county taking over the jail,” said Morefield. “I am not saying it will be economically feasible but the taxpayers deserve answers to this issue.”

Most Texas counties can run their jails at a far lower cost per day than the estimates being bandied about in this story, so de-privatization may indeed make a great deal of economic sense, particularly now that jail population numbers are down an amazing 64.5% in just a single year's time!

Grits mentioned the other day how remarkable and noteworthy it is that crime rates (including homicides) declined dramatically in Houston during a period when the county jail population decreased 31%. And in Bexar County, the commissioners court is interrogating why a large reduction (1,000+) in inmate numbers hasn't yielded more savings for the county.

Liberty County's relative achievement (though on a much smaller scale) is even more impressive and worthy of emulation. Their example shows that when judges take the lead, excess incarceration at county jails can be reduced pretty darn rapidly, with little identifiable detriment to public safety. The main barrier to reducing jail costs is a lack of leadership and political courage among judges, who have the authority to act and are uniquely positioned to build consensus among other elected officials (particularly DAs, who can easily throw monkey wrenches into the gears of they have no incentive to work together, and commissioners courts, who must pay for incarceration alternatives).

Finally, it's a welcome development that counties are beginning to see jails as an expense that could be cut instead of a sacred budget cow they daren't touch. I don't think Harris, Bexar, and Liberty will be the last counties we hear of in the next 3-5 years reducing jail populations to save costs.

Audits of asset forfeiture funds yield questions, felony conviction of Brooks/Jim Wells DA

2012-01-23T06:13:00.002-06:00

Joe Frank Garza, the former DA of Brooks and Jim Wells counties, which slice through rural South Texas along US 281, gave his first interview since his conviction last year for misappropriation of public funds to Mark Collette of the Corpus Christi Caller-Times ("As new questions emerge, former District Attorney Garza speaks about forfeiture funds," Jan. 22). Here's a notable excerpt from the article:

From 2002 to 2008, [Garza] used the funds for himself and to supplement employee salaries without approval. An audit showed more than $4.2 million went to salary supplements for Garza and at least three of his employees, and trips to casinos. Three secretaries received more than $1 million during a five-year period — or more than $66,000 per secretary per year, effectively doubling or tripling their pay. Garza said the secretaries deserved it.

As part of the plea deal, Garza was sentenced to 10 years in prison, which was suspended for 10 years probation. Garza spent six months in jail as a condition of probation and was forced to surrender his law license. He also was ordered to pay $2.16 million in restitution and a $10,000 fine.

State law requires custodians of forfeiture funds to submit detailed budgets outlining how they intend to use the money. Garza said he didn't understand the budget requirement because the statute was "so confusing."
In 2001 the statute contained the same requirement it has today for district attorneys: "The budget must be detailed and clearly list and define the categories of expenditures."

Garza said the law, which allows district attorneys to used seized funds for official purposes, lets the district attorney determine what qualifies as an official purpose. He claimed he asked state officials in 2000 whether there were limitations on how he could use the money and was told, "You can spend it for whatever, so long as you don't put it in your wallet."

He said he received advice from a county auditor and county judge who told him he didn't need to submit budgets for forfeiture fund expenditures.

The state's prosecutors didn't buy it.

"He knew better," Assistant Attorney General Shane Attaway said when Garza took the plea deal. "This is pure greed. This isn't an accident."

Garza complained that the audit of his funds and subsequent prosecution were politically motivated.

Meanwhile, Collette reported yesterday in a separate item ("Former Brooks County Sheriff under investigation for use of seized cash"), the former Brooks County Sheriff has his own asset-forfeiture related woes, reports Collette:

An auditor found more than $500,000 in questionable purchases through former Brooks County Sheriff Balde Lozano's criminal asset forfeiture funds, prompting a local prosecutor to refer the matter to the Texas Attorney General's office.

According to the audit, some of the purchases were channeled through funds controlled by Joe Frank Garza, the former 79th District Attorney who pleaded guilty in March to a felony charge for paying himself and his employees more than $2 million from his office's forfeiture fund without county commissioners' approval.

Lozano, 59, who is now a Falfurrias police officer, was sheriff from 1997 through 2009. He did not accept requests for an interview but provided a written statement saying the audit was politically motivated.

"I have been out of politics for the last three years," Lozano wrote. "It seems like the present sheriff's administration continues to try to drag me back into it."

Indeed, Lozano shouldn't spend too much time wondering why he's being dragged back into it! Reports Collette, "State law requires sheriffs, district attorneys and other officials who oversee seizure funds to submit forms yearly to the state comptroller and Texas attorney general detailing the money and seized property flowing through the funds and listing how much money was spent in various categories, such as salaries, equipment and travel expenses. There is no record of Lozano submitting the paperwork during his 12 years in office." Whoops.

Further, wrote Collette, "The county has no record of any budgets submitted by Lozano. The audit reports that when a county auditor raised objections about the sheriff's spending, Lozano and Garza replied with statements such as 'the sheriff can do whatever he wants with his money.'" Big ticket item to be accounted for include $88K in credit card purchases which appear mostly unrelated to law enforcement. Also, "About $394,000 was spent to buy 18 vehicles, apparently without competitive purchasing procedures. The auditor had difficulty tracking what happened to the vehicles and whether the county received money when they were sold." (Here's a copy of the October 2011 audit (pdf) of the Sheriff's asset forfeiture fund.)

So the former DA in Brooks and Jim Wells counties pled guilty to a first-degree felony for overpaying himself and his staff with asset-forfeiture money, but thinks he did nothing wrong. Meanwhile, the ex-Brooks County Sheriff treated asset forfeiture money as his own private slush fund with little accountability. One wonders what similar audits would find in other jurisdictions? Are these examples outliers or would similar self dealing and/or misappropriations be discovered elsewhere, if anyone bothered to look?

MORE: From Texas Watchdog.

Inmates and media: The Prison Show, snail mail and appreciating the Apostle Paul

2012-01-22T10:30:00.000-06:00

A coupla interesting stories discussing inmates' relationship to media caught Grits' attention. First, NPR this week had a feature on The Prison Show, emphasizing how the long-running Houston-based radio show focuses on connecting inmates to their families.

"So many people go to prison and those relationships end," [host David] Babb says. "The families will write to them for a while, they'll go visit them for a while and it becomes a burden, it just tends to fades away."

But the show gives prisoners a way to stay connected and the call-ins they get from children are proof of that. One daughter left this message for her incarcerated dad: "Well, school's going great. I don't have any classes with my friends but I'm seeing that as the bright side to make new friends ... And I'm just loving school right now. So I hope you can wish me luck when it comes to all the tests I have to take this year. OK, love you, Dad. See you soon, I hope."

At The Baptist Standard, there's an interesting article suggesting inmates understand the ancients' relationship to the written word more innately and viscerally than those in the free world because of their relationship to snail mail.

Stephen Presley, who teaches a biblical interpretation class at a maximum-security prison near Houston, said the inmates' familiarity with letter writing has given them a unique perspective on the epistles that comprise a large portion of the New Testament.

"I think that (for) those of us who live in a world that's dominated by e-mail and controlled by other forms of technology, sometimes it's hard for us to understand the genre of letter writing—the genre of the epistles," Presley said.

"But for those who live in this world (behind bars), it was so easy for them to comprehend and to almost identify with the early church in the way they would have felt receiving these letters from Paul and how they would have treated the letter, perhaps, even in ways we don't, in terms of reading it from start to finish, reading it closely and observing every word."

Change v. Tradition, lawyers v. journalists, and other perennial conflicts

2012-01-20T07:33:00.002-06:00

Lots of tidbits this morning competing for Grits attention:

Travis DA race: Change v. Tradition
At the Austin Chronicle, Michael King has a pair of interviews with challenger Charlie Baird and incumbent Travis County District Attorney Rosemary Lehmberg in what shapes up to be a dandy of a Democratic primary race between two political and legal veterans during which, judging from these interviews, many seldom-discussed aspects of the justice system will be vetted.

APD crime lab whistleblower interviewed
In Austin, KVUE-TV has an interview with the whistleblower alleging violations at the APD crime lab.

Dumped
Video: Littlefield, Texas: 'Meet town bankrupted by private prisons."

Dumped?
Liberty County is considering un-privatizing their jail and letting the Sheriff run it. The facility is currently run by Community Education Centers.

It's the checkpoints, stupid
No surprise to Grits readers, but the Texas Tribune reports that most contraband crossing into Texas from Mexico comes in at the checkpoints, not through the empty regions in between, which is one of many reasons this blog always opposed a border wall as misdirected enforcement.

Senate Criminal Justice interim charges
Interim charges (pdf) for the Texas Senate Criminal Justice Committee include studies of money laundering, the Crime Victims Compensation fund, the bail bond industry, solitary confinement (ad seg) at TDCJ, prescription drug abuse, and school discipline.

Senate Homeland Security charges
Interim charges (pdf) for the Texas Senate Transportation and Homeland Security Committee of interest to Grits' topic areas include the effect of drug trafficking and cartel violence on the economy, 911 staffing, limitations of using national guard for border security, the anticipated impact of the Panama Canal expansion, oversized vehicle enforcement (as it relates to preventing road damage), and pursuing toll scofflaws.

Okie prosecutors seek probation profits
In Oklahoma, prosecutors have begun taking on probation supervision duties for low-risk offenders, the Wall Street Journal reports, with an eye toward a new revenue source from offender fees. But critics wonder exactly how much supervising is going on.

Lawyers v. Journalists, innocence edition
Unless you've been on the inside of such fights - and Grits has occasionally found himself on both sides, over the years, as well as in the middle of such feuds - it's difficult to grasp the good-faith conflicts that arise thanks to the differing roles of journalists and lawyers. This story from the ABA Journal about innocence project work at Northwestern University captures some of those conflicts better than most depictions.

Upcoming criminal justice events in Austin

2012-01-19T14:54:00.000-06:00

These upcoming events in Austin may interest some Grits readers:

UT Law School conference to address developments in civil rights litigation since 9/11, February 3, 2012 (see the conference website)
Legislative Budget Board (LBB) staff discuss adult correctional population projections, February 3, 2012, 1:30-3 pm.
LBB staff discuss adult recidivism data, March 9, 2012, 1:30-3 pm.
Mental health and substance abuse seminar, Texas Court of Criminal Appeals, Criminal Justice Integrity Unit, March 22-23

What grants might be cut if counties don't update crime data?

2012-01-19T09:53:00.000-06:00

Earlier this week Grits published a list of Texas counties at risk of losing eligibility for federal Justice Assistance Grants if they don't meet minimum standards for recording judicial data, and at the time I asked the Governor's office for a list of those grants: Here are the grant awards for 2012 so far; they aren't in every county, but a lot of the bigger ones and all those along the border. Grant awards include funds for quite a few drug, mental health and other specialty courts, equipment purchases, border security grants, overtime pay, and an array of other specialized projects. Counties may become ineligible for these grant funds, the Governor's Criminal Justice Division has announced, if they don't update records to include at least 90% of criminal case dispositions from '06-'10. The CJD has said they're willing to assist counties with grant funds to upgrade local data systems.

Florida to close 7 prisons, why couldn't Texas?

2012-01-19T08:20:00.004-06:00

Florida recently announced they will close seven prisons and four work camps under a gubernatorial plan from Republican Rick Scott that's being tarred by Democrats and prison-guard unions as soft on crime and evidence of an "extreme Tea Party agenda." The state was able to close the units because of declining prisoner populations: “No inmates will be released early as a result of this decision, and there will remain adequate bed space to accommodate projected prison admissions, which have steadily decreased since FY 2007-08,” the corrections department said in a statement.

Regular readers know Grits believes Texas could have realized similar savings in the 82nd Texas legislature last year (we have more prisons and prisoners, by a longshot, than the Sunshine State) with just a few key policy tweaks, but the Lege instead cut funding, mostly for prisoner healthcare, without doing anything to reduce the inmate population. Within months, the state was paying $5 million per month over budget in an interim contract for healthcare costs with UTMB. When 2013 comes, if they want to cut TDCJ's budget they'll have to reduce the number of people incarcerated there.

Last week the Texas Public Policy Foundation held a panel at their annual policy conference (thanks to Marc Levin and David Guenther for the invite) featuring outgoing House Corrections Chairman Jerry Madden, chief Harris-County judicial cat-herder Caprice Cosper, House Rep. Marisa Marquez, and Adam Gelb from the Pew Center on the States.

Gelb's presentation focused on five "myths" about crime and punishment, but one of them spoke directly to the fallacy that "crime rates drive incarceration rates." In fact, he said, policy changes are the primary driver where states have reduced incarceration. That's how Texas avoided new prison building throughout most of the last decade, and it's the only way to reduce costs now.

Much was made at the event, and rightly so, of Texas 2007 investments in probation and diversion programs which have been oft-credited with keeping TDCJ's population 17,000 prisoners lower than had been projected five years ago. But in the "what have you done for me lately?" category, protecting those investments was the main accomplishment claimed for 2011.

In the Q&A section, I got to ask the panel why the Lege hadn't enacted more policy reforms to reduce inmate numbers and prison costs, "doubling down" on their earlier success to actually empty out and close prisons, as is happening in Florida. Madden replied that recidivism studies take three years and in 2011 they didn't have enough data to judge outcomes from the 2007 investments. While it's clear they worked overall, he said, the 2007 budget investments financed an array of different programs, and the Lege needed to wait on data to see which worked and which didn't to decide how to proceed.

That's a fair point, but in some ways the answer dodges the central conundrum facing the state on corrections spending. After all, the Lege slashed healthcare spending at TDCJ utterly without forethought or regard for reality, while failing to pass legislation that reduced the number of prisoners (particularly the sickest and/or elderly prisoners who cost the most money) commensurate with the smaller budget. Now, for this biennium, TDCJ will be coming in nearly nine-figures over budget, if the $5 million per month premium to UTMB continues, with 2013's budget expected to be even tighter. Last year they cut prisoner food, bled prisoner commissary accounts, reduced programming and educational opportunities, and likely cut all they reasonably can without addressing the elephant in the room: How can they change policies to reduce incarceration costs?

For the most part in 2011, that didn't happen, and there are few signs it's being seriously considered now (though one of the Senate Criminal Justice Committee's interim charges asks them to study diversion programs in part with an eye toward "reductions in correctional populations"). Tight budgets, though, have a way of forcing radical decisions on legislators that no amount of external advocacy could ever persuade them to make. At a minimum, it'd be helpful for TDCJ to reduce inmate numbers enough to end some of its contract arrangements with private-prison companies instead of paying for each marginal, extra inmate on a per diem basis.

As Chairman Madden pointed out on the TPPF panel, in the near future TDCJ's Sunset process is the most likely vehicle for enacting such fundamental reforms. Grits hopes the Sunset reviewers evaluate the agency and make recommendations with an eye toward revamping TDCJ to correspond to these new budget realities, strengthening probation and parole while seeking creatively ways to emulate Flordia, New York, Michigan, and other states which have reduced incarceration and shut down prisons. That's the recipe for budget stability in Texas corrections - a lot of insiders already know it - and really the question becomes more one of political courage than budget sense. In that context, tight budgets could force legislators to do the right thing for the wrong reasons, letting them scale back mass incarceration without paying the same kind of political price one might pay, say, from closing neighborhood schools, by pointing out that's the tradeoff. Caprice Cosper echoed that sentiment, saying the budget crunch was an opportunity to think creatively.

Time will tell. Texans like to boast, I commented to the panel, and Madden was right to boast about the 2007 budget reforms - they were a great accomplishment. I'm glad this session they were mostly protected. But it's time to acknowledge that their effects have pretty much played out and more will need to be done in 2013 to actually cut the budget, much less avoid new prison building (or expanding use of contract beds) by the end of the decade.

Nuther challenge to Harris Co. ME: Called administrative and judicial officers by county at different times

2012-01-19T06:10:00.005-06:00

A second attorney has filed claims that Harris County medical examiner reports are invalid based on researcher and occasional Grits commenter David Fisher's findings that most of them had not signed constitutionally required oaths of office or bribery statements which are seemingly required for them to perform their duties. Michael Reed at Houston Community Newspapers proivides a good overview of the issues at stake based on recent court filings ("Legal standing of Harris County medical examiner at issue," Jan. 13):

In a Sept. 15, 2011 opinion, ... Glen Van Slyke, assistant county attorney, wrote that the medical examiner is not an appointed public “officer,” but rather an “administrative employee” of the Commissioners Court. As such, holding the position does not require taking an oath of office or providing any written statements.

Oddly, in 2009, Harris County went before the 1st Court of Appeals to argue that Sanchez was a judicial officer and as such could not be barred from performing an autopsy opposed by the deceased’s family for religious reasons.

Harris County was joined in its position by Tarrant, Dallas, Bexar, El Paso and other medical examiner counties. When challenged later, each of these, unlike Harris County, executed the oath and statement as required by the state Constitutional.

Sanchez, through a spokesman, declined to comment Friday.

In the 2009 case, Harris County vs. Afsaneh Saghian, the court ruled “the Medical Examiner of Harris County is a judicial officer and that it is manifestly improper for a district court to enjoin him from performing duties which he deems — in a valid exercise of his discretion — to be necessary and required of him by statute.”

That may be for the best from the county’s vantage point. If the medical examiner is not a judicial officer, according to the defense attorneys, an even bigger problem arises — one that could result in criminal charges, rather than constitutional violations.

Unlike in many other states, physicians in Texas are prohibited by state law from taking part in “corporate practice of medicine.” In other words, doctors cannot practice medicine that is “any way controlled or directed” by a non-physician. This, according to Bollinger, includes partnerships and employee relationships.

“A non-physician cannot hire a physician to be a physician except in very limited exceptions,” Bollinger’s motion said. “None of those circumstances or exceptions apply to the claimed relationship between the Commissioner's Court and the Harris County Medical Examiner.”

Possible penalties for practicing corporate medicine include $1,000 fine for each violation with each day a separate infraction, and the possibility of third-degree felony changes for each violation against the doctor in question.

“Each of these penalties could be applied to both Sanchez and the employer, who the county attorney claims is the Harris County Commissioner's Court,” the motion said.

That would entail roughly 1,750 civil violations and criminal offenses on the part of the both parties since Sanchez took office, January 2003.

The underlying issues may seem like bureaucratic trivialities, but at the same time, the county clearly is in a bind, having argued to an appellate court in 2009 that the ME is a judicial officer (when they wanted to maximize the office's authority to override family religious prerogatives), but now contradicting themselves to say the ME is an administrative employee in order to wiggle out of the Catch-22 they're caught in.

Other counties faced the same dilemma and most went ahead and had their ME file the relevant oath and bribery statement, but it's an open question what the implications would be if a court found MEs work in past cases was invalid, and it's not just Fisher and a few defense attorneys who suspect that may be the case. As Grits noted last year when this came up, "The Webb County Attorney had declared that 'Until such time as she has taken the oath with the appointment as medical examiner then everything she did prior to that is void.' Which raises the question, what happens to older cases that the medical examiner evaluated without the oath and bribery statement? Are they 'void' as well?"

I can't speak to which legal position is correct, but even if Fisher and Co. are right, it would take great courage for a judge to side with them, raising questions about dozens if not hundreds of inquests in murder and manslaughter cases performed while documentation was inadequate, not just in Harris County but potentially in many jurisdictions, if a single judge cracks the door open. Scott Durfee at the DA's office told Reed that they're paying little attention to the issue at the moment (perhaps distracted by proceedings at the grand jury), but "that would change, if an adverse ruling were reached." Indeed, if that happens, a lot of things could change. For want of a nail, the shoe was lost ...

The Trials of Eroy Brown

2012-01-18T18:53:00.000-06:00

Eroy Brown, a TDCJ prisoner serving time in a South Carolina prison to protect him from state retaliation, is up for parole, reports Mike Ward at the Austin Statesman ("Brown case highlights reluctance to parole long-time offenders," Jan. 18). "Brown is serving 90 years as a habitual criminal for robbing a Waco convenience store of $12 and some candy bars." His story is the subject of a recent book, which I've not yet read, but based on that account, Ward describes in broad strokes the incident that made Brown notorious:

Within the prison system, he is most noteworthy for what happened during a deadly struggle on April 4, 1981, alongside a drainage ditch called Turkey Creek in the farm fields at the Ellis Unit near Huntsville. When it was over, the farm manager, Billy Moore, lay dead from a gunshot from the warden's pistol and the warden,

Wallace Pack, was drowned. Brown claimed self-defense, saying that Moore had been stealing tires from the prison and was afraid Brown was about to snitch on him.

The trial transcript, detailed in a 2011 book about the case, "The Trials of Eroy Brown: The Case That Shook the Texas Prison System," details the events of that day:

Moore drove Brown to the ditch and called for Pack to join them.

"You ain't going to be able to tell a (expletive) thing on me. You ain't going to tell (expletive) on me," Brown testified Moore told him.

Pack pulled the pistol from his car's trunk, and with Brown handcuffed by his left wrist, threatened to shoot the convict, with the revolver cocked at his temple.

"Shut your (expletive) up, boy. I will splatter your brains all over this street here," Brown testified the warden told him.

Spread-eagled astride Pack's car, Brown struggled to wrest the gun from Pack.

The gun went off five times. Brown was shot in the foot. Moore was fatally shot in the head. A third shot grazed Pack's hand. Pack and Brown continued to fight for the gun, rolling into the water-filled ditch. Pack pushed Brown's face into the muddy water, trying to drown him. Brown rolled on top of the warden in the water.

"I laid on him and laid on him," Brown testified. "I don't know how long I laid on him. He stopped moving."

Prison officials insisted the deaths were murder, and prisons were later named for both Moore and Pack.

Brown went to trial three times. Each time, he was acquitted. The acquittal of a black convict in the deaths of two white prison officials never went over well in the hidebound world of Texas prisons, where prison farms were run like plantations and inmates often called their guard supervisors "boss."

By 1984, Texas had agreed to settle a separate federal civil rights case ensuring that Brown and about two dozen other convicts who had assisted in the investigation and other cases would never have to serve time in Texas prisons because it would be too dangerous for them.

That's why Brown has spent the past 26 years in federal prisons in California and South Carolina for the Waco robbery. His attorneys blamed the long sentence on publicity about the prison murders.

Go here for more on the book, The Trials of Eroy Brown, by Michael Berryhill from the University of Texas Press.

Obama Administration hands lucrative, belated Christmas gift to private prison industry

2012-01-18T09:21:00.010-06:00

In a major victory for private prison lobbyists, the Obama Administration has announced a dramatic change in incarceration policy regarding economic migrants, aiming to incarcerate pre-trial and adjudicate a much larger percentage of non-criminal immigration cases instead of using "voluntary returns," or just shipping economic immigrants back to Mexico, typically without processing through the court system. Illegal immigration has plummeted since the onset of high unemployment in the United States, so this policy props up a massive federal immigration bureaucracy built up during the last two presidential administrations with a new, enhanced raisson d'etre. Reported the El Paso Times ("US will toughen voluntary returns," Jan. 18):

El Paso lawyer Carlos Spector, who specializes in immigration and asylum issues, said he does not believe there are enough federal prosecutors and judges to handle all the potential cases that could be referred to the U.S. Attorney's Office. "We have about 5,000 cases on the docket of the Downtown courthouse," Spector said. "We are waiting two to three years to get a hearing for some cases.

"With the apprehensions being down so much, the Border Patrol really needs to justify all the money it's been getting for its budget," Spector said. "It's like bringing the soldiers back from Afghanistan, and then once they're here, what do you do with them?"

Spector said Mexico's drug cartel wars also have created new dangers for immigrants seeking to cross the border illegally. Mexican authorities have implicated violent cartels in the kidnappings and murders of hundreds of immigrants, usually stemming from disputes between rival human smugglers associated with the drug cartels.

Not only are there dangers from cartels (busloads of economic migrants have been massacred as part of the savage violence in northern Mexico), but "Officials of Mexico's National Commission for Human Rights, a government agency, said that 3,000 Mexican migrants died while crossing the border between 2000 and 2010, many of whom got lost without food and water in the desert." So incredibly desperate people are already willing to risk their lives from cartels and the elements - the death penalty, if you will - to get into the United States. That's far more people than have been executed over the same period for capital murder! Think about it: As a practical matter, will the possibility of a year or two in a Geo-Group run prison and formal deportation really be a big deterrent for such folk? This policy is much more about Democratic positioning among independents and conservative Dems before a presidential election than addressing dysfunctionality in the immigration system.

As a byproduct of that electoral political agenda, private prison companies and potentially even counties that built speculative prisons might see a wave of new, taxpayer-funded contracts. That's a disappointment for anyone who hoped federal expenses might fall after the rate of growth in immigration detention finally seemed to be receding with the deflated economy. As usual, though, incarceration rates are driven mostly by policy decisions as opposed to the actual scope of the problem the state is trying to solve. That's why immigration detention may increase while illegal immigration drops, just as incarceration rates may rise even while crime is dramatically falling.

A US Attorney in California explained the fundamental difference in the new approach to CBS News: "It has not been the practice ... to target and prosecute economic migrants who have no criminal histories, who are coming in to the United States to work or to be with their families. ... We do target the individuals who are smuggling those individuals." Now in many cases that could change, if the Border Patrol gets their way. Prosecuting non-criminal migrants themselves opens up such a vast new pool of incarceration possibilities that I won't be surprised to see stocks at Geo Group (GEO) and Corrections Corporation of America (CXW) jump in response.

As a middle-aged man, from a purely selfish perspective, I want as many immigrants as possible here, low-waged and high, all legal, amnestied, documented, and paying into social security and Medicare, preferably, if only so there will be enough workers footing the bill when it's my turn to benefit from those programs. Immigration benefits the economy, just as a large proportion of Texas' much-admired economic miracle may be attributed to large-scale migration to the state (including illegal immigration, most of which IMO should have been formally allowed), but that's a different polemic for another day. Setting aside one's big-picture stance on immigration, this particular policy is a solution quite literally searching for a problem (except, I suppose, for the problems of the punishment-for-profit crowd), providing little additional deterrent or benefit, but with a large price tag attached and lucrative new contracts handed out like candy to private-prison interests. Pointless policy, dumb idea.

Most Texas counties don't meet governor's new crime data criteria, may lose grants

2012-01-17T16:02:00.005-06:00

Grits mentioned earlier this month that the Governor will withhold a portion of federal grant funding from counties beginning next year if they don't adequately update criminal history records, particularly dispositions of cases after an arrest has been made. Of the largest counties, Harris and Bexar have no worries, but Dallas, Travis, Tarrant, El Paso, and many other counties all have significant remedial work to do to avoid losing grant funds. (Find a complete list of non-compliant counties below the jump.) I asked the Governor's office for a copy of the memo, and here's the text:

To:                        Criminal Justice Division (CJD) Grant Recipients of Future Funds
From:                    Christopher Burnett, CJD Executive Director
Date:                    December 14, 2011
Re:                       Important Changes in Eligibility Requirements for Future Grants

While most counties have made great strides over the last few years in reporting criminal history dispositions as required by Code of Criminal Procedure, Chapter 60, to the Texas Department of Public Safety (DPS), the State Auditor’s September 2011 audit of the reporting requirement system shows that more needs to be done. To assist this effort, the Criminal Justice Division (CJD) is taking the following steps:

Effective September 1, 2012, each county must comply with Chapter 60 reporting requirements in order for the county or any political subdivision within that county to be eligible for grants under CJD’s Justice Assistance Grant (JAG) program. This means that by August 1, 2012, each county and any political subdivision within that county that has applied to CJD for JAG grants must provide CJD with a criminal history disposition completeness report documenting that it has reached a 90% disposition completeness rate for adult arrests for calendar years 2006-2010, as measured by DPS. All jurisdictions, such as cities, in a non-compliant county will be ineligible for JAG funds regardless of whether the county itself applied to CJD for JAG.

Effective September 1, 2013, any entity, public or private, in a county that does not report at 90% or above will be ineligible to receive grants from any state or federal fund sources managed by CJD.

CJD will discuss possible grant funding to help counties get into compliance.

Criminal histories must be reported correctly and promptly to DPS as required by Chapter 60. Many public and private employers use criminal histories as part of the review process when hiring persons for sensitive positions. Texas and national law enforcement officers need complete criminal histories during traffic stops or during other contacts. Also, this information is vital for judges to make proper decisions regarding magistration and sentencing. For these reasons, the Texas Legislature has stressed the need for timely and complete information and has established timelines for counties to achieve average compliance reporting at 90% or above.

I urge you to pay close attention to how these reporting requirements may affect your entire county’s eligibility to receive future grants from CJD. Please contact Judy Switzer (judy.switzer@gov.texas.gov) for CJD and JAG questions.

If you have technical questions regarding the Chapter 60 data reporting requirements, please contact Angie Kendall at the Texas Department of Public Safety at angie.kendall@dps.texas.gov.

Click here for a list of counties and their criminal history reporting averages with DPS.

Sincerely,

Christopher Burnett
Executive Director
Criminal Justice Division

When I communicated with the governor's office, they emphasized they were willing to help fund data entry and improvements to data systems, so there's a carrot to go along with the stick. Though it would have been less time consuming to compile a list of counties that DID update reports in 90% of cases, here's the list of the 191 (out of 254) Texas counties that didn't provide sufficient case dispositions for '06-'10, as of the most recent November 2011 reporting period. Each of them, if they don't improve, is at risk of losing a portion of federal grant money flowing into their jurisdiction.

Anderson: 46%
Andrews: 87
Angelina: 84
Archer: 84
Armstrong: 67
Atascosa: 70
Bastrop: 78
Bee: 65
Bell: 87
Blanco: 81
Borden: 64
Bowie: 80
Brazos: 88
Brewster: 57
Briscoe: 86
Brooks: 22
Brown: 86
Burleson: 83
Burnet: 75
Caldwell: 84
Calhoun 84
Cameron: 43
Camp: 78
Carson: 84
Cass: 71
Castro: 42
Chambers: 88
Cherokee: 84
Childress: 77
Clay: 83
Cochran: 55
Coke: 83
Coleman: 81
Collingsworth: 39
Comal: 63
Comanche: 88
Concho: 56
Coryell: 83
Cottle: 53
Crane: 88
Crockett: 82
Crosby: 84
Culberson: 28
Dallam: 76
Dallas: 80
Dawson: 85
Deaf Smith: 86
Denton: 85
Dimmit: 39
Donley: 72
Duval: 62
Eastland: 87
Ector: 84
Edwards: 27
El Paso: 81
Fannin: 84
Fayette: 88
Fisher: 86
Floyd: 74
Foard: 9
Fort Bend: 80
Franklin: 69
Freestone: 69
Frio: 52
Garza: 74
Glasscock: 36
Gonzales: 78
Gray: 70
Grayson: 84
Gregg: 76
Grimes: 59
Guadalupe: 87
Hale: 45
Hall: 47
Hamilton: 73
Hansford: 86
Hardeman: 82
Hardin: 83
Harrison: 84
Hartley: 82
Hays: 83
Hemphill: 76
Hidalgo: 73
Hill: 44
Hockley: 63
Howard: 88
Hudspeth: 2
Hunt: 89
Hutchison: 64
Irion: 87
Jack: 85
Jackson: 87
Jasper: 77
Jeff Davis: 25
Jefferson: 83
Jim Hogg: 72
Jim Wells: 54
Johnson: 88
Jones: 89
Karnes: 75
Kaufman: 85
Kendall: 64
Kenedy: 75
Kent: 81
Kerr: 87
Kimble: 89
Kinney: 54
Kleberg: 81
La Salle: 56
Lamb: 86
Lee: 73
Liberty: 88
Limestone: 83
Live Oak: 74
Llano: 67
Loving: 22
Lubbock: 85
Lynn: 73
Martin: 56
Maverick: 30
McCulloch: 82
McMullen: 88
Medina: 66
Midland: 83
Mills: 88
Mitchell: 85
Montague: 63
Nacogdoches: 84
Navarro: 81
Nueces: 84
Oldham: 61
Orange: 87
Panola: 61
Parker: 86
Parmer: 77
Pecos: 59
Polk: 83
Potter: 89
Presidio: 20
Rains: 87
Randall: 89
Reagan: 72
Real: 56
Red River: 67
Reeves: 54
Refugio: 86
Roberts: 56
Robertson: 89
Rockwall: 89
Runels: 78
Rusk: 78
San Augustine: 48
San Jacinto: 81
San Patricio: 89
San Saba: 63
Schleicher: 88
Scurry: 87
Shelby: 78
Sherman: 60
Somervell: 86
Starr: 19
Stephens: 84
Sutton: 68
Swisher: 30
Tarrant: 69
Terrell: 27
Terry: 59
Throckmorton: 74
Titus: 61
Tom Green: 89
Travis: 77
Trinity: 39
Tyler: 83
Upton: 74
Uvalde: 60
Val Verde: 69
Van Zandt: 73
Victoria: 79
Walker: 74
Waller: 74
Webb: 30
Wharton: 86
Wheeler: 74
Wichita: 81
Willacy: 63
Wilson: 87
Winkler: 79
Wood: 86
Yoakum: 83
Young: 84
Zapata: 3

John Bradley named '2011 Worst Prosecutor of the Year'

2012-01-17T13:59:00.004-06:00

Your Winner: 2011 Worst Prosecutor of the Year, John "Marty" Bradley

Over at The Agitator, Williamson County DA John Bradley edged out an extremely competitive national field to win Radley Balko's 2011 Worst Prosectuor of the Year Award based on a reader poll. As one of Radley's Agitatortots commented, "although the award is given for a year, it is effectively a lifetime achievement award." Indeed. Well earned.

Meanwhile, Grits feels compelled to point readers to this hilarious video clip of a scene from a WWII film in German which somebody subtitled with biting dialogue drawing on themes from the Michael Morton exoneration. Normally Grits disdains Hitler references on the web, deferring to my college pal Mike Godwin's dicta regarding the uselessness and disrespectful nature of such comparisons. However, this piece doesn't compare Bradley's actions to those of Hitler's, which is the usual Godwinian trope. Instead, it uses the scene to explore the emotional state of a megalomaniac in free fall. Anyway, it made me laugh.

On a more serious, related note, last week the Texas Tribune interviewed Michael Morton's attorney John Raley about the case, and published excerpts in video and transcript form. And Wilco Watchdog is going through old John Bradley posts from the District and County Attorneys user form and finding lots of controversial opinions expressed that don't always jibe with his comments to the MSM.

Bradley's GOP primary opponent, Williamson County Attorney Jana Duty, has been racking up law-enforcement endorsements and this week received the endorsement of the former Williamson County DA Ed Walsh, who preceded Ken Anderson and John Bradley in the office. A reader from Williamson County emails to say, "There are bandanas appearing on his signs all over the county. People are really sick of him and no longer scared to speak out."

What a difference a year makes! This time in 2011 Bradley was on top of the world, with many anticipating that by the end of the year his long-time patron Governor Perry may even appoint him to the Court of Criminal Appeals. But first the Texas Senate rejected JB's nomination as chair of the Forensic Science Commission, then the Michael Morton exoneration splashed his and Ken Anderson's names across the national press as poster children for indifference toward valid innocence claims and alleged prosecutorial misconduct. Now, not only is appointment to Texas' high criminal court a pipe dream, he might not even win reelection in Williamson County. Grits remains flabbergasted by Bradley's eye-poppingly rapid downfall, which will reach truly epic proportions if he actually loses the April primary. I'm sure the DA himself must be stunned at the development.

Counties seeking jail population reductions

2012-01-16T15:04:00.000-06:00

A pair of stories out of smaller jurisdictions provide examples of ways Texas counties are attempting to save money by reducing jail populations:

In Coryell County, commissioners are hoping local judges will begin using personal bonds more frequently for non-violent defendants, allowing them to be supervised pretrial by the probation department to clear up space in the jail. Meanwhile, in Angelina county a retired judge is assisting to process cases more rapidly, reducing the jail population by more than 50 people per month in a facility with a capacity of 279.

Peer pressure promoting police binge drinking begins in academy

2012-01-16T09:42:00.002-06:00

Tanya Eiserer at the Dallas News has a crackerjack story on the hot-button topic of alcoholism and law-enforcement culture ("They drink when they're blue: Stress, peer pressure contribute to police's alcohol culture," Jan. 16, behind paywall). Here's a notable excerpt:

Drinking is part of the police culture.

“They drink a lot, and they drink together,” said John Violanti, a research associate professor at the University at Buffalo and a former New York state trooper who studies police stress and alcohol use. “It’s part of the macho image, part of being a cop.”

Experts on police, and many officers, say cops drink because of peer pressure and high stress levels. They get into trouble with alcohol because they feel invulnerable and, as society’s helpers, are less likely to show weakness by seeking help. As mores change and technology advances, they’re more likely to get caught and their colleagues less likely to risk assisting them in covering up their problems.

The article is filled with examples of officers binge drinking with other officers then getting in serious accidents. The story opened with these anecdotes:

Kelly Beemer drank heavily at a South Dallas bar before hitching a ride home in a squad car, where she fired a gun through the floorboards.

Rachel Nicely downed margaritas at a Greenville Avenue bar before climbing behind the wheel, hitting a parked car and being arrested for drunken driving.

Jesus Cisneros had eight beers and four shots at a birthday party and later slammed his city vehicle into another car, killing the driver.

All were police officers with promising careers. All drank heavily with other off-duty officers on the day they got into trouble.

Their careers were ruined.

Other tales included an officer who showed up at a SWAT assignment with alcohol on his breath and later, in another incident, was found passed out in a running city vehicle with a can of Foster's in his lap. Despite those lapses, he was allowed to remain on the force eleven more years until another DWI forced his resignation. So some of these issues arise form lax police management giving second and third chances to chronically alcoholic officers, even when they drink on the job.

A treatment provider said that "suppressing trauma and stress" is a root cause of alcoholism in law enforcement, but it's also clear that peer pressure to participate in police drinking culture begins well before officers ever hit the street. According to one expert quoted, "Rookies are indoctrinated into the brotherhood in blue and the culture of alcohol consumption at the police academy." One of the ex-Dallas officers interviewed said that's where her problems started:

Former Dallas police officer Shelly Pierce said in an interview that she drank a lot while in the academy and afterward. She typically drank, off duty, with other officers and a shared expectation that it was going to be a wild night.

“When we go out, we’re going out,” said Pierce, who lost her job over a 2006 drunken-driving arrest. “We’re getting drunk. We’re going to be the loudest. All the attention is going to be on us. … It’s because of that whole ‘shock and awe’ thing. I’m going to be the one that shocks.”

Laura Brodie, a California-based psychologist who worked with the Los Angeles Police Department’s employee assistance program, said she has found a lack of moderation prevalent in the police culture.

“It’s all or nothing,” she said. “When they get into drinking, they start competing in their drinking.”

First-rate reporting by Eiserer on a seldom-discussed subject. As she'd reported in a 2009 story, roughly 89% of police suicides (which occur far more frequently than deaths in the line of duty) involve alcohol abuse, so this subject not only impacts the safety of the public (nobody wants a drunk in uniform wielding a gun or arrest authority) but also the officers themselves.

'Neither punished nor treated, just jailed'

2012-01-16T08:40:00.000-06:00

At the Dallas News, columnist Steve Blow had a piece yesterday ("Mental illness leaves man trapped in county jail," Jan. 15) about a defendant named Reveau Skinner suffering from paranoid schizophrenia who was declared incompetent to stand trial but then waited in jail more than a year (so far) for a state hospital bed to open up to provide competecy restoration services (i.e., treatment to stabilize and medicate the iillness so the defendant is competent to participate in his own defense). Notes Blow:

If it were his heart or a hip that malfunctioned, he would undoubtedly be in treatment. But since it’s his brain that has the problem, he sits in jail month after month.

He should have been released a long time ago. But now he’s caught in the abyss between our criminal justice and mental health systems, neither being punished nor treated. Just jailed.

Earlier, a plea bargain was struck that would have released Skinner on probation - the victim in the domestic violence that sent him there incident had no desire to press charges. But after the court declared him incompetent, he couldn't even enter a guilty plea until after he'd been restored to competency, and that part of the process has stalled because of the shortage of state hospital beds.

The judge apologized to Skinner, but with that apology and a dollar he perhaps could get a soda at the commissary, but not much else. IMO, after such a long time the judge should have flat-out ordered the state hospital to take this fellow, as judges in other jurisdictions have begun to do.

The Legislature this year gave with one hand on competency restoration while taking away with the other. They passed a statute for misdemeanor defendants requiring their release if they don't get timely competency restoration, but for those charged with a felony, as in this case, there's no such safety valve. Meanwhile, they actually cut funding for state hospitals and mental health treatment, heightening scarcity and increasing time on waiting lists for competency restoration treatments.

This situation has lingered as long as your correspondent has been paying attention to county jail issues, and it's an area where underinvestment by the state heaps big problems and costs onto counties. To make matters worse, the only legislator who last session made the issue a real priority - Rep. Will Hartnett - is retiring from the Lege and will not return. Texas desperately needs somebody to take leadership on this question, but a betting man would likely wager the malaise and inaction will continue indefinitely, particularly with large budget shortfalls projected again in 2013. The situation is difficult for local officials but impossibly frustrating and cruel for the defendants themselves.

Indeed, in some ways the system seems more incompetent than the defendants. We understand that mental illness caused Skinner's incompetence, but what explains the incompetence of legislators, the governor, and the Department of State Health Services (which operates state mental hospitals) to cease this recurring nightmare? At least Mr. Skinner has a good excuse.

See prior, related Grits posts:

Feds nix grants subsidizing SHSU crime lab

2012-01-15T09:45:00.000-06:00

Texas' newest crime lab, run by Sam Houston State University in Montgomery County, opened in 2010 with the promise of three years of federal startup funding. But after budget cuts associated with raising the debt ceiling, that funding dried up and the lab has had to nearly double some of its fees. Reported the Conroe Courier (Jan. 6):

The Sam Houston State University Regional Crime Lab, which is operated by the university’s College of Criminal Justice and located in The Woodlands, started taking evidence from five counties, including Montgomery, in November 2010. A $1.5 million federal grant got the lab up and running.

But those agencies using the lab had agreed to three years of federal funding, after which the lab would complete its transition to becoming self-sustaining through fees, said Assistant District Attorney Warren Diepraam, chief of the Vehicular Crimes Division for the Montgomery County District Attorney’s Office.

Diepraam said District Attorney Brett Ligon and SHSU officials have asked U.S. Rep. Kevin Brady, R-The Woodlands, to help find additional federal funds to supplement the fees paid by agencies.

“We are hopeful some funding will be found,” Diepraam said.

Montgomery County supplied 86 percent of the lab’s business, and the lab was charging a $200 flat fee for all drug and alcohol tests, Diepraam said.

Now, with the cut in funding, the lab will charge agencies $386 for alcohol tests and $290 for drug toxicology tests used for driving while intoxicated cases.

From November 2010 to October 2011, the lab ran 1,034 drug toxicology tests and 900 of those were from Montgomery County, Diepraam said. During that same time period, the lab analyzed 4,335 controlled substance evidence items, with 86 percent of them coming from Montgomery County, according to a casework overview by the lab.

The Regional Crime Lab will continue to run the drug toxicology and blood-alcohol tests, but all controlled substance evidence tests now will be sent to the Texas Department of Public Safety lab in Austin.

The average length of time for the Regional Crime Lab to turn around controlled substance tests is about two weeks, while the DPS lab can take up to nine months because of the volume of cases it gets from across the state, Diepraam said.

So the the county can pay $290-$386 for testing at the lab and get results back in 2 weeks, or send the sample to DPS and have it done for free, but not see results for up to nine months.

Unaddressed in the story, though, are the costs of delay: If the defendant is unable to make bail, say, in a controlled substance case, that also tacks on thousands of dollars in additional jail costs while wating for tests to come back. When that happens, the overall cost-benefit analysis still favors using the local lab, even at the higher price. Problem is, different revenue streams pay for lab testing and the jail, with different elected officials managing each sliver of the process. So budget myopia may cause prosecutors to send out for testing, even if in the long run it costs Montgomery County more money.

Attorney Paul Kennedy at The Defense Rests adds an additional concern about a possible fix suggested by the local DA:

MoCo District Attorney Bret Ligon now wants to use the asset forfeiture fund to pay for the tests.

The problem, of course, is the increased incentive to seize property and file forfeiture actions against defendants. Forfeiture actions serve to tie up defendant's assets and make it that much harder to muster a defense against the state. You will also find out that the vast majority of defendants either default or negotiate settlements in which they receive just a portion of the value of the items seized. The asset forfeiture funds then become a private slush fund for whoever's running the DA's Office (just ask former MoCo DA Michael McDougal). Of course there's no telling where the property seized in Tenaha went.

For the reasons mentioned above, I understand why the DA would want to subsidize the lab. But I agree with Kennedy it's problematic to rely on asset forfeiture funds for any government entity's base budget. Back when Texas used grant money to prop up dozens of regional narcotics task forces around the state, many of those local entities used asset forfeiture funds to pay for local matching under their grants, leading to skewed enforcement priorities.

Grits' view: By the time you add in additional jail costs from delays, the county in most cases is still better off paying to process cases more quickly. Balking at a $300-$400 fee seems foolhardy when the result is $40-$50 per day extra jail costs for up to nine months. (The phrase "penny wise, pound foolish" comes to mind.) The criminal justice system is just that, a system, with a lot of moving parts, so one can never look at cost figures like this in isolation. It's common for "savings" in one part of the system to result in even greater costs elsewhere. So federal subsidies are nice, but if Texans want a massive criminal justice system that, at any point in time, supervises more than 3/4 million adults in prison, jail, on probation and on parole (roughly the population of Austin), then paying for ancillary services like crime labs is an unavoidable expense.

Kennedy suggested three takeaway lessons from the episode: "First, for entities involved in the criminal (in)justice system who rely upon government funds to operate - those funds will diminish or vanish at some point, even if the entity is there to help the state. Second, the lab should have charged a more realistic rate for their services; the excess would allow for a "cushion" when the funding was cut or dropped. Third, no one gives a rat's ass about the people accused of committing a crime." That pretty much sums it up.

Forensic commission reviewing Austin, El Paso crime labs

2012-01-13T16:28:00.007-06:00

The Forensic Science Commission directed their complaint screening committee today to consider a new case out of the Austin crime lab, discussed here on Grits, in which a fired analyst claimed that reports were issued without performing the underlying testing. They will decide at a future meeting whether to form an investigative panel based on the Complaint Screening Committee's recommendation. The Commission also questioned why Austin or Travis County officials hadn't forwarded the allegations about "drylabbing," in the industry terminology, at the time they first heard of the complaint. (The City had requested the Department of Public Safety look into the allegations, so they were clearly aware before now and could have notified the FSC.)

In other developments at the FSC, most of their day was spent discussing management shortcomings at the El Paso PD crime lab, were a lab worker who analyzed controlled substances turned out to be unqualified and incompetent. About 7-8 folks were there from El Paso including the District Attorney, an assistant city manager and various crime lab personnel.

Bottom line, while most of the media attention has focused on a single lab worker who couldn't pass basic competency tests, Commissioner Sarah Kerrigan, to the nodding affirmation of her peers, strongly urged that that lab worker not be used as a "scapegoat" to avoid bigger changes. When the El Paso lab began its certification process in 2006, the accrediting body found a list of shortcomings they asked them to fix, and which the lab claimed to have resolved. In 2011, though, when the incompetent lab worker came to light, a new assessment identified virtually all the same problems at the lab, still unresolved, that were cited in 2006.

The biggest problems involved the culture of the lab, which until recently was run by a police sergeant with no scientific background who had ultimate decision making authority, including the authority to resolve conflicts among scientists. The Quality Assurance manager, until recently, was disempowered and couldn't stop work when something went wrong. Indeed, during one period in 2010, two different people both thought they were the official quality manager; one of them was mistaken, but clearly there was a lot of confusion.

At times, very junior staff newly qualified in their field were put in the position of doing technical reviews of others' work and performing other high-level functions that were likely over their head. Kerrigan likened it to someone just getting their drivers license and then being hustled off to race in a Grand Prix.

The lab's internal culture discouraged questioning other examiners: "trust the examiner" was the office philosophy, said Kerrigan, but unfortunately not all of the examiners were trustworthy. Kerrigan mentioned one staffer who at different times came back with positive and negative results from the same sample. At least one false positive has been identified - a case where the test came back negative 44 times and positive once, so the lab reported the result as positive without mentioning the 44 negatives.

Kerrigan said their review of more than 1,400 pages of records and interviews with numerous officials during a site visit had revealed a fundamental lack of scientific leadership at the lab. The lab in particular still cannot find a qualified manager. A recent job search turned up empty, and they're reposting the position on January 23. Another commissioner expressed that it sounded like the lab was staffed by technicians instead of scientists able to engage in independent thinking. Kerrigan noted that lab staff attended training that taught correct practices, but nobody ever connected the dots when they came back to El Paso and things operated in a more rudimentary, less professional way. Another odd red flag: Caseloads at the EPPD crime lab are exceedingly low and it's not clear everyone employed in the controlled substance testing division is really needed. In 2010 they processed 863 cases; in 2011 it was 504. By contrast, a crime lab chief sitting next to me at the meeting said his analysts processed 150-200 samples per month, apiece!

The El Paso crime lab was put on probation last year by the accrediting body, which extended probation in September but finally took them off two days before Christmas. A representative of the accrediting body, though, told commissioners that ending "probation" didn't mean all is well or that El Paso is off the hook. They only have until April 6, he said, to find a qualified lab director and fix the other problems identified by the accrediting agency.

The Department of Public Safety agreed to perform a fairly extensive audit of the EPPD crime lab's controlled substances division within the next 30 days, so there will be more to come on this story.

Off-duty police employment deserves greater vetting

2012-01-13T06:34:00.000-06:00

A story from the Austin Statesman published January 5 reminded Grits of a research project I conceived awhile back, but put on the back shelf because of a lack of resources and manpower (Oh, how I miss having interns!). The Statesman story opened:

Federal and local authorities are looking into the off-duty employment of several Austin police officers who were paid cash by a wealthy Mexican man to watch over his daughter while she attends college, the American-Statesman has learned.

Two officers have left the Austin Police Department in the past month since the inquiry started, and others who may have also worked on the private security assignment have been questioned.

Austin Police Chief Art Acevedo confirmed Wednesday that the department recently learned of allegations concerning one officer and "immediately launched criminal and administrative investigations." He declined to describe the nature of the allegations or disclose who alerted the department, citing the ongoing inquiry.

Acevedo also would not say how many officers have since been investigated or questioned.

"Anytime we investigate incidents, you are much better off as an organization to start with a very broad view to ensure that we don't miss anything," Acevedo said.

Sgt. Wayne Vincent, president of the Austin police union, said "less than 10" officers had their duties restricted in recent weeks after the department initially learned about outside employment concerns.

We won't know more about this case until the department releases more detail, but over the years Grits has observed that, when police corruption arises, there is sometimes a nexus of money changing hands surrounding either approved, off-duty employment or separate small businesses owned and operated by officers, who as a group are a remarkably entrepreneurial bunch. You'd be surprised how many veteran police officers have one or more small business registered in their names in addition to their day jobs, including a disproportionate share of officers with significant disciplinary records..

At one point a few years back while I was unemployed for quite a few months on end, your correspondent seriously considered taking up a major research project aimed at exactly these sorts of off-duty employment issues at Austin PD. The idea was to get all the approval forms for off-duty employment under open records for some period of time, say a year, and to simultaneously take the complete list of Austin police officers and run their names at area courthouses and the Secretary of State to identify all sole proprietorships, business partnerships or Texas corporations registered under their names.

Once you've created a database of businesses owned by officers and those which employ off-duty cops, the larger task becomes systematically vetting the businesses to look for discrepancies, improprieties, litigation, government contracts, shady associations, etc.. It would be a monstrously large undertaking for a force the size of Austin PD - almost worthy of a book-length project - and in the end I decided Grits didn't have the resources to take it on as a one-man show, choosing to focus on other, more attainable priorities.

But I've always thought that the extracurricular moneymaking activities of law enforcement deserve more focused attention because often, when you look closely, as in this case, it can become a point of vulnerability for the department in many, perhaps too many, respects.

Former Austin crime lab scientist says reports issued without testing

2012-01-12T06:22:00.011-06:00

A fired scientist at the Austin PD crime lab is making serious, public allegations, including that the lab issued reports in drug cases without performing any lab testing. Reported the Austin Statesman ("Fired scientist files complaint against Austin police crime lab," Jan. 12):

A fired former Austin Police Department crime lab scientist has filed a complaint against the lab with the Travis County district attorney's office, alleging lab administrators do not have proper accreditation and that drug evidence was not analyzed before reports were submitted.

The complaint, filed in December, has prompted District Attorney Rosemary Lehmberg to ask the Texas Department of Public Safety to review the charges.

APD says the complainant, a scientist named Debra Stephens, is a disgruntled ex-employee seeking to bring discredit on the agency. Stephens, for her part, says she was fired last year in retaliation for raising these problems. "Stephens said Wednesday evening that she raised concerns about the lab last January or February with department officials and was then fired in April. She said she was fired because of her allegations." Issuing reports without having done testing was definitely the most serious allegation:

Stephens wrote in her letter to [Travis County DA Rosemary] Lehmberg that "results are being reported and charges are being filed without any analysis being conducted at all."

[Defense attorney Dan] Dworin said if that proves to be true, "that's a God-awful scandal."

Stephens also estimated that hundreds of other drug cases analyzed by the Police Department's crime lab since 2005 were "analyzed without regard to laboratory protocols."

These, she wrote, came in "rush" cases.

Defense lawyers interviewed suggested that the "rush" cases were required to meet prosecutors' accelerated prosecution schedule under the so-called Rocket Docket. Under that program — which initially was implemented for low-level drug cases to clear space in the crowded Travis County Jail — prosecutors present to defendants a summary of the evidence in the case, including the drug testing report, along with a plea bargain offer within about two weeks of an arrest.

Defense lawyer Amber Vazquez Bode said that following protocol is essential in such cases because it ensures accuracy.

"It's a pretty big deal if in fact a substance was not crack cocaine and you are sitting in state jail for a year," she said.

Dworin and Vazquez Bode said it's too early to predict whether the outcomes of any prosecutions or the course of any pending cases will be affected by Stephens' letter.

The Department of Public Safety said in a letter to the DA's office that they could reach no conclusion about reports being issued without testing because of a lack of record keeping, though they note that "The Austin Police Department lab policy does not specify when the review must be performed, nor did any case records indicate review dates. Therefore, no judgments on this allegation can be made." Further, "The documents provided on two of the cases ... do not show any testing before the 'Preliminary Report' was emailed.," though DPS recommended further investigation before concluding that was a problem. But it's fair to say the official DPS review so far has not debunked Ms. Stephens' most explosive claims and in fact slightly bolstered them.

Notably, tomorrow the Forensic Science Commission will be discussing a somewhat similar episode from the El Paso crime lab, where an incompetent labworker apparently signed off on test results without performing the appropriate procedures, or in some cases interpreting the results incorrectly; they were put on probation by the national accrediting body but recently taken off that status. From the media accounts, the Austin episode, if the allegations are true (a big if, at this early stage), the malpractices described seem to stem more from bureaucratic malaise than any one person's specific incompetence, but the result is the same: Test results are issued by the lab without any justifiable, scientific basis.

These allegations come on the heels of reports last fall of high error rates in DWI blood testing at the Austin PD crime lab, which is a growing concern in light of so-called "no refusal" policies and the tendency of Austin police to arrest people for DWI when the charges are unsustainable.

Earlier, in 2010 an Austin crime lab worker alleged that quality assurance personnel at the lab were underqualified and that staff were threatened with retaliation if they reported problems in the lab. Though an investigation said claims were unfounded, at the time Cecily Hamilton, a former crime-lab scientist in the DNA division, said in a public statement that "APD is covering up the fact that their DNA lab has issues and that they performed a bogus internal investigation and they are trying to discredit and slander me so that people will not listen when I tell the truth about what occurred during my employment there."

Similarly, the DA and police department are circling the wagons and seeking to discredit Ms. Stephens in the media, but that's a short-sighted approach. If she turns out to be right, and the DPS letter doesn't contradict that possibility - they're setting themselves up for bigger future problems. And if she's wrong, a more thorough investigation should reveal it; there's no call for a rush to judgment. Generally, discrediting one's critics works better if you're able to show someone is a liar; just saying it over and over can only fend them off for so long. So far, Ms. Stephens' central allegation of misconduct has not been disproven, at least by DPS' investigation.

When the Forensic Science Commission dismissed an earlier, more generic complaint against the Austin crime lab last year, to my knowledge it did not include these hot-button allegations of fraudulently issuing reports without having done testing, so Grits won't be surprised if the FSC decides take up this issue, nor if the Austin allegations are mentioned tomorrow in the context of the Commission's discussion tomorrow of the El Paso crime lab.

Maybe the Forensic Science Commission needs to take up Ms. Stephens' allegations. The situation needs to be investigated by somebody who doesn't begin already knowing the conclusions they want to reach, either for or against the crime lab, and then cherrypick evidence to support it. And from their defensive public comments I don't trust APD nor the Travis County DA - who's currently in the midst of a hotly contested primary battle - to perform that function without shifting into CYA mode.

RELATED: For anyone interested in more detail, Grits has uploaded Stephens' letter to the DA onto Google documents, as well as DPS' letter to the DA's office. Thanks to a reader for passing them along.

New arrests made for murder in which victim's brother was convicted as lone gunman

2012-01-11T15:25:00.000-06:00

A reader alerts me to a possible false conviction out of Brownwood, and a recent one, to boot. Reports the Abilene Reporter-News ("Was Brownwood man wrongly convicted of killing brother? New arrests made in case," Jan. 10):

A recent twist in a December 2009 Brownwood murder case may cast doubt on the guilt of a man convicted of killing his brother, authorities said.

New information has led to two arrests and an ongoing investigation into additional suspects into the death of Ronald Philen, said Micheal B. Murray, Brown County District Attorney.

In November, Randall Philen, 52, was sentenced to life in prison by a jury that found him guilty of shooting his younger brother, Ronald, 49, in the chest. A motion for a new trial was filed by the district attorney’s office Tuesday.

“If it is determined that Randall Philen was not a party to the crime, this office will act swiftly to dismiss the murder charge against him,” Murray said. “If it is determined that he was a party to the crime, then he will be retried in light of all available information.”

Police unions finding renewed opposition after years of bipartisan kowtowing

2012-01-11T10:04:00.004-06:00

In a local story from the Valley about a change of leadership at the police union in the McAllen police department ("Police officers union to move forward under new leadership," Jan. 7), I was interested to see a reference to the union's losses in their recent contract negotiations. Reported the McAllen Monitor:

Sgt. Joe Garcia, the union’s president since 2009, will be replaced by his vice president, Officer David Alvarado.

They helped negotiate the union’s four-year collective bargaining agreement, which runs until Sept. 30, 2015.

The agreement, inked July 18 after negotiations failed and the union unsuccessfully sued McAllen, was widely seen as a victory for City Hall.

“One thing I’ve learned is you’ve got to pick your fights with the city,” Garcia said, referencing the contentious negotiations.

The contract phased out a health insurance subsidy for some retired officers and eliminated a union information session for police cadets, an important recruiting opportunity. Union officials had pushed for an across-the-board raise and permission to work security at downtown bars while off duty, but city officials rejected those proposals.

With the contract behind them, Garcia decided to step down, and Alvarado ran unopposed to succeed him. Alvarado will be officially sworn in later this month.

While the union doesn’t attract much attention when there isn’t a contract to be negotiated, it’s a major player within the Rio Grande Valley’s largest police department, which has 275 certified police positions. The union’s contract sets pay and benefits, and the union provides work-related legal services to members.

In the wake of the contract losses, the new union president "said he wants to build closer ties between the police union and the public, in part to improve the image of public employee unions, which have been under attack nationwide." McAllen snubbing the union in contract negotiations is a notable contrast to the way elected officials from both parties in recent years have kowtowed to police unions in larger cities. Being a "right to work" state, Texas has few strong unions anymore in the private sector and our public-sector unions are incredibly weak compared to those in other large states. (E.g., our prison guards are virtually unorganized and unconsidered compared to their powerhouse counterparts in California.) As a result, police unions in Texas elections often are the only union interest with significant political muscle, money to spend, etc..

These unions - particularly those under the CLEAT umbrella - historically in Texas have tended to garner bipartisan fealty among politicians at all levels. I understand why Democrats strongly support unions; less so why Rick Perry does, except to associate himself generally with law enforcement. In Austin, then-Mayor Kirk Watson's extravagant handouts to the police union were the driver for a decade and counting of continuous property-tax growth since the turn of the century, with more of the same projected in the foreseeable future. From the 30,000 foot level, there's a growing resistance by taxpayers to paying - usually through local property tax hikes - for the kind of lucrative pay and benefit packages they themselves lost to corporate restructuring and the recession.

Like the new McAllen police-union president, ever since the budget fights in Wisconsin Grits has been wondering if and when anti-public employee sentiment within the conservative movement might bubble up as feuding with local police associations. To hear CLEAT Executive Director John Burpo tell it, the fight is already here, and the barbarians are at the gates:

A little background is in order. From the 1960’s to just a few years ago, law enforcement pensions were improved significantly and then maintained. Law enforcement officers and their unions advanced and state legislators pushed the proposition that policing is a tough, dangerous job that deserves decent retirement benefits greater than other public employees.

Unfortunately, private sector unions have declined significantly over the last 20 years, and with that decline there has been an attendant decline in private sector defined pension benefits. The majority of private sector employees no longer have retirement plans – they are now fortunate to even have a 401(k) and a meager contribution by the employer. Sadly, most folks in the law enforcement world did not pay attention to this development because it was their problem, not ours.

In the past 2 years public sector pension plans have come under attack, including law enforcement retirements. These attacks have taken place in other states so once again, it was their problem and Texas law enforcement officers didn’t worry.

But it is definitely now our problem as antiretirement forces are on the march right here in Texas. A cabal of anti-union, anti-public employee businessmen out of Houston are leading the charge to take away your long held and much deserved retirement rights. This cabal doesn’t care that each one of you lays your life on the line every day; or that the Memorial Wall on the State Capitol grounds is filled with the names of heroic law enforcement officers who have sacrificed their lives protecting Texas citizens.

CLEAT will lead the fight to take on these Forces of Darkness. We have a battle plan that is eloquently outlined in Todd Harrison’s article on page 2 of this edition of The Police Star (pdf). Please take the time to read this important article so that you understand what we will be doing over the course of the next 2 years.

I find Burpo's language wonderfully hyperbolic, if sadly typical of much internal police-union rhetoric: Anyone with a different opinion on something they care about is generally considered by CLEAT to be part of the "Forces of Darkness," which in this case includes a "cabal of anti-union, anti-public employee businessmen out of Houston." Who knew? A shadowy cabal! Throw in a few references to the Trilateral Commission and the Bilderberg Group and he could write for Alex Jones.

The schtick about dangerous jobs will only get them so far when garbage collectors, whose jobs are statistically far more dangerous, are paid much less and get no comparable memorial on the capitol grounds. (In 2009, according to the most recent Census of Fatal Occupational Injuries (pdf), "refuse and recyclable materials collectors" died on the job at a rate of 26.5 per 100,000, compared to 12.9 for "Police and Sheriff's patrol officers.")

CLEAT's plan includes backing electoral opponents to run against incumbents who support restructuring retirement benefits (through their PAC), extensive polling to craft messages that will sell with the public, creating a "Truth Squad" to quickly attack critics who question the viability of large police pensions, fundraising for their PAC (surprise, surprise!), and engaging union locals in their message delivery. The plan, or at least its public, fundraising-letter version, notably does not contemplate any path to compromise on the kinds of issues (ethics, accountability, public information) that might demonstrate the union's commitment to the sort of professionalism expected of government workers who make more money and have better pensions than the average voter. Instead, the plan is to attack anyone who questions them.

In McAllen, the city manager said part of the union's trouble was a simlar us-against-the-world mentality:

City Manager Mike Perez said the relationship between the police union and city leaders has been “rough at best.”

“I think the approach they take is: City Hall is the enemy,” Perez said. “The fact that they’ve gotten involved in politics and supported candidates hasn’t helped the relationship.”

Perez said he’s heard second- and third-hand reports that officers thought Garcia wasn’t tough enough on City Hall, and backed Alvarado because he’d take a harder stance.

When the GOP took over Texas state politics, police-union interests never missed a beat and continued to wield significant power, thanks in large part to their influence with Rick Perry and the advisers surrounding him (as well as a few, key, senior legislators, many of whom have now departed). Will that continue to be the case as a radicalized GOP base sends more Tea-Party types - Burpo's "Forces of Darkness" - to the legislature and city councils? Or will the police unions, perhaps for the first time in a generation, finally be forced to learn the art of compromise, both at the capitol and at city hall? Time will tell.

Mt. Pleasant bail bond board lets industry write its own forms

2012-01-11T07:01:00.002-06:00

In Mount Pleasant, Grits was interested to see a debate covered at the local bail bond board over whether Titus County should create its own forms for "Surrender of Principal," or use forms supplied to them by the bail bond industry, which they lamentably ended up doing ("Bail bond board works on new documentation," Jan. 7).

There was a long discussion on a standardized format for the formal document required for the Surrender of a Principal. In the end, the board decided not to use a form of its own, but agreed to let bondsmen use standard forms designed by their professional association.

Surrender of Principal is the legal term for canceling a bail bond. County Judge Brian Lee noted it is used most often when the subject may already in jail, prison, or dead.

[District] Attorney Charles Bailey expressed concerns over the forms as presented to the bail bond board members. If the board mandates county bondsmen use their forms, it could be construed “as practicing law without a license,” said Bailey.

Kellye Cooper with AAA Bail Bonds said bondsmen have been using a standard form for many years.

We don't know from the story what are the terms in either the industry form or the one prepared by the county; there's some likely-economic reason the bondsmen prefer their contract to the one produced by staff. Is the industry form full of loopholes or other favorable provisions? ¿Quien sabe? But it seems like an outrageous interpretation to say that a local bail bond board, which was expressly created to regulate the local bail industry, can't even create their own forms without being accused of "practicing law without a license." Bizarre - isn't the DA sitting in the room as counsel? I'm not a lawyer, but I've never heard of any such concern. Regulatory bodies everywhere, in all walks of life, create their own forms instead of letting the regulated industry write them, which strikes Grits as an essentially corrupt process.

When Wall Street writes its own regulations, we've seen what happens. The same risk exists for the bail bond industry, which is why I"m skeptical of such self-regulation. In Dallas, for example, Morning News reporters figured out that bond companies were filing phony rearrest reports in which they falsely claimed to have recaptured defendants who'd skipped in order to avoid paying what they owed. And you're going to let them write their own forms, too?

When an industry controls the regulatory body that's supposed to govern it, that's a corrupt system, even if nobody was paid off (and Grits is alleging no such improprieties). And there's little greater form of control than an industry being empowered to literally put in place forms from their industry association instead of having the regulatory agency prepare them. The devil's in the details and I haven't seen the two forms for comparison, but from a distance the episode seems troublesome. Why even have local bail bond boards at all if the industry gets to write the rules themselves?

Williamson County prosecutors playing defense

2012-01-10T09:03:00.000-06:00

Williamson County District Judge Ken Anderson, reports Chuck Lindell at the Austin Statesman, filed a brief with the court which "accused [exoneree Michael] Morton's lawyers of employing falsehoods, incomplete facts and an incorrect reading of trial records to accuse Anderson of hiding evidence that could have spared Morton from a receiving a life sentence for a crime he did not commit." See Anderson’s brief here (pdf) and accompanying exhibits here (pdf).

Meanwhile Williamson County DA John Bradley is reportedly out blockwalking for his campaign, just as Wilco Watchdog has discovered the internet treasure trove that is the incumbent's collection of 7,500+ posts at the Texas District and County Attorneys Association's user forum, posting a comparison of Bradley's public media statements about disclosing exculpatory evidence with his running commentary among friends on the TDCAA site. My favorite bit: In a brilliant moment of understatement, one forum user responded to Bradley's authoritative disdain for handing over exculpatory evidence with the observation, “The contention that there is no constitutional obligation to turn over exculpatory evidence when the defendant pleads guilty seems highly dubious.” Dubious, indeed! Regrettably, the blogger doesn't provide permalinks for the quotes, though I'd read most or all of it before. See the full Watchdog post for more.

For those who haven't seen it, if you're a regular Grits reader and are interested in the topics this blog covers, I encourage reading the TDCAA forum purely for its entertainment value, as evidenced by the quotes pulled out by the Watchdog. (Their site appears to be inexplicably down, hopefully not in order to expunge years of dialogue as a result of the Watchdog's post!) A lot of interesting discussions happen at the TDCAA user forum on subjects I don't see addressed anywhere else, for good and sometimes for ill. One caveat: Before ever quoting the forum, as the Watchdog did, always get a screen shot or cut and paste the string into a separate document. Mr. Bradley in particular, but other forum participants, too, have been known to change or delete comments when they were cited in the media.

The primary battle for Williamson County DA this year is shaping up to be a real hoot!

See related Grits posts:

2011 retrospectives look at criminal justice stories, x 10

2012-01-09T15:25:00.000-06:00

See Jordan Smith's Top Ten Criminal Justice stories of 2011 at the Austin Chronicle, which has some crossover but quite a few differences (in part due to geographic focus) from Grits list of the ten biggest Texas criminal justice stories of the year. The website The Crime Report published a similar ten-stories list with a national focus. Relatedly, Jordan Smith also has a top-ten list of the biggest marijuana-related stories, and Phil Smith from Stop the Drug War has a list the top ten national drug-war stories. A good set of links to have if you like your news retrospectives to come in multiples of ten.

Good blogging by others

2012-01-09T11:30:00.001-06:00

Several posts from other Texas blogs related to topics sometimes discussed on Grits deserve readers' attention:

Some Harris County grand juries runaway, some never leave the station
I haven't written much about the "runaway" grand jury in Harris County evaluating potential misconduct by the District Attorney, nor the apparent failure to timely empanel grand juries in the new year, mainly because the process is secret and at this distance I can't make hide nor hair of what's happening amidst all the campaign-driven allegations and counter-allegations. Some folks closer to the action, though, are attempting to divine the true circumstances, most notably Mark Bennett, who analyzes the imbroglio here, and Murray Newman, who sees the delay in empaneling grand juries as nigh-on the end of the world. Paul Kennedy, by contrast, can't understand what all the fuss is about. Much more serious, clearly, is the grand jury's subpoena of DA Pat Lykos, which seems like a late Christmas present to Newman. Bennett considers it "unprecedented for a Texas grand jury to subpoena a sitting District Attorney. Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the Fifth, it’s because she really means it." Good stuff all around. The Houston legal blogosphere is working through these issues more quickly and deftly than the MSM.

Kuff: Still "too many" inmates after Harris jail pop reduction
Charles Kuffner reacts to good news that murders are down nearly as much as the local jail population, a development discussed in this Grits post. Kuff suggests that "We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time."

Cart before horse: Implications of possible innocence in Lake Waco murders
The Texas Moratorium Network has a pair of posts discussing the possible implications if DNA testing in the 30 year old Lake Waco murders comes back exonerating the men convicted of the crime, which could prove for the first time that the state has actually executed an innocent man:

While I'm interested in this case, regular readers know Grits doesn't believe "proving" an innocent person was executed will be the silver bullet many death-penalty abolitionists hope. Moreover, I've learned from harsh experience that one never knows what the results of DNA testing will be until it comes back from the lab. If the two men convicted are actually innocent, for the sake of the remaining fellow I hope the DNA can prove it; if they were guilty, I hope that's proven, too. The worst outcome where a past execution is involved would be if the tests came back inconclusive (as happens, I'm told, about a third of the time) or if DA Abel Reyna were to succeed (as seems unlikely) in his effort to suppress DNA testing. You don't want more cases hanging out there like Todd Willingham's where unresolved doubts linger forever, undermining public confidence almost more than if the execution of an innocent had been definitively proven.

Bias, the judiciary and the death penalty
Another post from the Texas Moratorium Network chides the Texas judiciary for only being intolerant of bias in one direction: If Teresa Hawthorne Must Recuse Herself From Death Penalty Case, Then Sharon Keller Must Recuse Herself From All Cases. The post opens, "In Texas it is apparently ok for a Republican judge to say that they are “pro prosecution”, as Judge Sharon Keller has done, and not have to recuse herself from any cases, but if a Democratic judge expresses any doubts about the constitutionality of the death penalty, then she must recuse herself. If Teresa Hawthorne must recuse herself from the current death penalty case because of “bias”, then Judge Sharon Keller should recuse herself from all cases before her court." Mike Hashimoto at the Dallas News was less kind to Judge Hawthorne, calling her opinion "goofy." See more from the Dallas Observer blog.

Growth in 'forensic' commitments exacerbate budget pressure on state mental hospitals

2012-01-09T10:30:00.000-06:00

I ran across a "legislative primer" (pdf) published in February 2011 by Legislative Budget Board that I hadn't seen before which included this notable excerpt about the growth in demand for forensic beds at Texas state mental hospitals.

INCREASING FORENSIC POPULATION

According to DSHS, the forensic population in SMHs [state mental hospitals] is increasing. The role of the SMH in the treatment of forensic patients has expanded in recent years as some SMHs have experienced a significant increase in the number of forensic patients they serve. As described earlier a forensic patient is one who is admitted to a SMH by judicial order because they have been determined unfit to stand trial or found not guilty by reason of insanity. Some of the forensic patients who are in SMHs for competency restoration have been accused of minor crimes such as trespassing and misdemeanor assault. In fiscal year 2010, the total number of beds at SMHs was 2,461 including 1,558 civil beds and 903 forensic beds....

Forensic commitments generally involve longer lengths of stays in the SMHs. According to DSHS, the average length of stay for a non-forensic patient is less than 30 days compared to more than 30 days and often more than 90 days for forensic patients.

As of December 14, 2010 there were a total of 282 persons on waiting lists at SMHs for forensic beds. According to DSHS, the wait for a forensic bed can be as long as six months in jail for some nonviolent offenders needing inpatient services. These long wait periods can have a negative effect on the forensic patients’ mental conditions.

Longer wait times and longer lengths of stay at the SMHs before a forensic patient is declared competent may result in offenders waiting in jail longer for competency restoration than their sentence would be if they were convicted. It is likely that before some forensic patients have had their competency restored, they have already served the maximum amount of jail time for sometimes minor criminal offenses and are released without sufficient on-going mental health services or resources. This situation may contribute to re-offending and cycling back into the judicial system.

Further, driven largely by the increased number of forensic beds: "SMHs have seen an increase in the average lengths of patient stay. The average length of stay at discharge from SMHs for each fiscal year were 44.5 days in fiscal year 2006, 43.5 days in fiscal year 2007, 47.3 days in fiscal year 2008, 46.3 days in fiscal year 2009 and 51.5 days in fiscal year 2010. The average length of stay increased 15.7 percent when comparing fiscal year 2006 to fiscal year 2010."

Legislation approved last year (HB 2725 by Will Hartnett, who will be missed upon his retirement) ordered judges to count time on the waiting list for restoration services against defendants' ultimate sentence, making it easier to get charges dismissed when time spent incarcerated reaches the maximum sentence length. The bill gave jails a back-end release valve for less serious cases, but it didn't even pretend to resolve the underlying trend. As judges have lately begun to order forensic commitments regardless of waiting lists, the situation in the near term will only worsen.

Lege raided red-light revenue, shorting trauma center hospitals

2012-01-09T08:38:00.000-06:00

Money from red-light cameras designated for Texas trauma hospitals isn't actually making it to the intended recipient, the Dallas News reported yesterday ("Texas lawmakers sit on red-light revenue dedicated to trauma centers"):

The law directs a portion of fines generated by the cameras toward trauma centers. But instead of helping hospitals, the money is simply piling up in Austin.

The $46 million pot earmarked for hospitals is helping lawmakers certify a balanced budget even though much of the money in state accounts can’t be used for general expenses. It’s an accounting trick that has been used for years and defended by budget writers who say such maneuvers are necessary in lean times.

Budget writers face a choice: They either have to cut spending or reduce appropriations, said Steven Polunsky, spokesman for Sen. John Carona, R-Dallas, who wrote the bill that set aside red-light camera funds for trauma centers.

“In the past, the state has appropriated trauma funds,” Polunsky said. “However, the state was in a difficult budgetary situation.”

In their last session, lawmakers set a record by refusing to spend $4.1 billion raised from earmarked fees and taxes. The programs that suffer include electricity discounts for the poor and, in the case of red-light ticket revenue, trauma centers.

While Greyson was among those who lobbied for red-light cameras, critics of the law say the state’s refusal to let go of the money is another reason for repeal.

“This is just another lie we were told,” said Byron Schirmbeck of Baytown, who successfully petitioned to get the cameras removed from his city. “They sell the system to the public by saying that all this money will come back to the community — to the trauma centers. But the state is holding on to the money.”

The Lege cut its line-item appropriation for trauma centers by 23% in 2011, so the loss of red-light camera revenue pales in comparison to their overall shortfall (and likely is a subset of the larger number), but it's still notable that they hijacked a dedicated revenue stream. This is one of the valid reasons why the "no new taxes" crowd opposes tax hikes, etc., across the board. Even when the supposed justification is "dedicated" to a good cause, like trauma centers, in practice they divert the money whenever they want.

Grits queried DPS this a.m. to clarify the precise extent to which the Lege did the same thing with revenue from the Driver Responsibility surcharge, so stay tuned for a followup on these themes.

Will review of junk science in old arson cases go forward?

2012-01-08T11:41:00.003-06:00

The Fort Worth Star-Telegram has a story today ("Texas debate on arson science reignited") on the review of junk science in old arson cases recommended by the Texas Forensic Science Commission in conjunction with my employers at the Innocence Project of Texas. The article suggests the project may be curtailed with the transition to a new state fire marshal who may not be as committed to the review. The story by Yamil Berard opens:

It wasn't too difficult to convince a jury that Garland Leon "Butch" Martin of Midland was a wife abuser and a baby killer.

The day in 1998 that his common-law wife, Marcia Pool, threatened to leave him because of abuse, their house went up in flames, killing Pool and their 20-month-old daughter. Martin, who was not at home, was convicted of arson and is serving three concurrent life sentences.

But now, modern science may impugn the jury's decision. Martin's conviction is one that some believe was based at least in part on "junk" science.

A number of forensic scientists and others are calling for additional reviews of arson-murder cases like Martin's because evidence was analyzed by methods now called into question or proved wrong. Members of the Texas Forensic Science Commission say they don't have the jurisdiction to investigate these cases, but they have told the Texas Innocence Project to team up with the State Fire Marshal's Office to determine whether the state has incarcerated people for arson-murders based on outdated science.

"To the extent that this review goes on, it is because of the voluntary participation of these agencies who think it's the right thing to do," commission attorney Lynn Robitaille said. The commission is expected to discuss the issue in more detail at its meeting Friday.

At issue, however, is whether a comprehensive review of such cases can or will be done. Skeptics say that the assessments would require a lot of time and resources and that such extensive work may not be possible.

An estimated 700 to 900 people are in Texas prisons for arson-related crimes, according to various sources. Of those, about 100 are from Tarrant and Dallas counties, state inmate records show.

Furthermore, the marshal's office, which early on pledged to assist such a review, is in transition. Any success in reviewing cases may largely depend on whether the new state fire marshal makes such an effort a priority, some say.

Let's not have this fight again. The new fire marshal should stick with the agreement to review old cases.

MORE: In her coverage, the Texas Tribune's Brandi Grissom sounds more sanguine that the review will go forward.

See prior, related Grits posts:

Read more here: http://www.star-telegram.com/2012/01/08/3642858/texas-debate-over-arson-science.html#storylink=cpy

Governor's office will withhold grants for counties not updating criminal histories

2012-01-07T13:15:00.000-06:00

The Governor's office will begin restricting grant money to jurisdictions that don't upload sufficient crime data into the state system, according to a story from the Corpus Christi Caller Times that could almost certainly be localized in many other Texas jurisdictions ("State warns of grant cuts for Coastal Bend Law Enforcement," Jan. 6):

Nueces County law enforcement agencies could lose about $2.5 million in funding by 2013 should they fail to meet a Sept. 1 deadline for uploading criminal histories into a statewide database.

The bite out of the Nueces County Sheriff's Office and Corpus Christi Police Department could be as high as $213,000 if officials don't upload data from 90 percent of all adult criminal cases that originated between 2006 and 2010, Nueces County government affairs director Tyner Little said.

Nueces County has uploaded 84 percent of the cases from that period of time, according to data provided by the governor's office.

Information such as a suspect's arrest date, charge and final disposition is uploaded to the Texas Department of Public Safety's Texas Criminal Information Center, a real-time database accessible to law enforcement agencies and prosecutors.

Law enforcement agencies statewide were warned of the potential grant cuts in a memo sent last month by the governor's criminal justice division.

Officials from the county information technology department met Thursday with representatives from the district attorney, sheriff's and district clerk's offices as well as city police officials to determine why the data is lagging.

"The problems are all over the map," Little said.

Last year, the state auditor issued a report listing counties (pdf, p. 35) that failed to submit dispositions for arrests from two years ago, finding many agencies' data woefully incomplete. Judging from that data, this will be a big challenge for many counties, including most of the big ones except Harris.

Related: Dismissals, outcomes, often don't make it into state criminal history database.

Harris County crime reduction undeterred by 31% fewer jail inmates

2012-01-07T08:21:00.004-06:00

News of Houston's lowest murder rate in decades coincides with a seemingly a counter-intuitive report that the Harris County Jail population has declined 31% in the last three years.

Long-time readers will recall that, in a 2007 plebiscite, despite overcrowding and hundreds of prisoners housed in contract facilities as far away as Louisiana, Harris County voters rejected the issuance of debt for new jail construction. Writers like Grits and the Texas Public Policy Foundation's Marc Levin argued that policy changes by elected officials - particularly the District Attorney and judges - could resolve the problem a) without expensive new jail construction and b) without crime increasing, and it turned out that's exactly what's happened. Reports the Houston Chronicle's Mike Morris this morning ("Thanks to less crowding, overflow inmates staying in Harris"):

Dropping inmate numbers at the Harris County Jail will let the county end its nearly 5-year-old practice of shipping overflow inmates to Louisiana and other Texas counties within days, Sheriff Adrian Garcia said this week.

The jail population has fallen 31 percent since 2008, to 8,573 inmates. The jail has a capacity of 9,434, but has at times held more than 12,000. Garcia hopes the expense of contracts with far-flung jails - totaling $31 million in the last two years - has ceased for the foreseeable future.

As of Friday, the sheriff had no inmates in Louisiana and just 21 elsewhere in Texas; more than 1,600 inmates had been outsourced as recently as June 2010.

Grits finds this news downright incredible after being told time and time again by so many in offiicialdom how naive I was to oppose Harris County jail construction and how unrealistic it was to expect local officials to change. My position at the time was, "if you build it, they will come"; new jail construction, Grits argued, would accommodate bad policies while jail crowding forced the system's collective managers to confront them. So I'm particularly encouraged by indications that Harris County judges are now acknowledging their role in the problem and attempting to help resolve it. A defense attorney:

praised the Criminal Justice Coordinating Council, and said judges are beginning to examine their pretrial and sentencing choices.

State District Judge Jan Krocker, who will be opening a court for mentally ill offenders within weeks, agreed.

"Making your community safe in terms of both violent crimes and property crimes involves not only pronouncing appropriately long sentences, but also in rehabilitating those people who can be rehabilitated," Krocker said. "A lot of us are working a lot harder at that."

Good news, indeed. A big chunk of the decline stems from the DA's new policy on how to charge drug paraphernalia, which has drawn heat from police unions but praise from nearly every other corner of the justice system. (Clearly the change hasn't spawned some great crime wave.) But the story also mentions other initiatives that contributed to the jail population decline:

The county has launched various diversion programs. In April 2010, Garcia began allowing nonviolent inmates who enroll in educational or work programs to earn three days' credit for each day served. As of mid-December, 3,661 inmates had been released early under the program, which can shave up to two months off the maximum county jail sentence.

Garcia also noted that 48 people have been diverted from jail by the county's Crisis Intervention Response Team. That program, approved in August, pairs police with mental health clinicians to respond to crises among the mentally ill, hoping to treat them rather than jail them. The sheriff also has tested a program allowing some low-level offenders to serve their sentences at home while wearing an ankle monitor.

For a county the size of Harris - whose jail at its largest was more populous than more than half the states' prison systems - a 31% incarceration reduction in three years is a remarkable achievement, made even more impressive when one realizes that crime rates have continued to plummet and the county has only scratched the surface of possible de-incarceration reforms.

There's still a great deal more to do. Local law enforcement agencies in Harris County don't use discretion granted them by the Legislature to issue summons instead of arresting for certain low-level misdemeanors. And to the extent a new mentality has caused judges to reduce pretrial detention, it's certainly only just begun, in only a few courtrooms. Bail is still the rule for most offenses and pretrial services remains the red-headed step-child of the county justice system, despite anguished cries from the bail industry over even marginal expansion in the use of personal bonds.

This impressive rate of de-incarceration shows that all the "can't get there from here" naysayers were blowing smoke, that the county could incarcerate a LOT fewer people without crime rates worsening. IMO there's still a lot of slack to take up. Now that the county is no longer outsourcing inmates, the next question becomes, how long till the county can reduce the jail population enough so the facility can be run without using substantial overtime? Counties can achieve significant budget relief through de-incarceration, just as overincarceration inevitably becomes a budget burden. Hopefully, Harris County will continue down this path, both for the benefit of its own citizenry and as an example inspiring other Texas counties to rethink their approaches. It's about time!

I don't think the county could possibly have reached this point if they'd expanded jail capacity; there'd have simply been no incentive for change.

On texting, driving, fact checking, murder rates, borderline competency and global security

2012-01-06T08:14:00.010-06:00

A few, disparate tidbits:

Houston 2011 murder rate nearly as low as Mexico City
The murder rate in Houston is at its lowest since 1965, (and nearly the lowest since data began to be recorded), with 198 murders last year compared to a high of 701 in 1981, reported KUHF radio. Still, the murder rate of 9.4 per 100,000 is substantially higher than the statewide murder rate of 5.0 in 2010, according to DPS data (pdf). To put that number into perspective, Mexico City's murder rate is 8.3 per 100,000, so in that light 9.4 perhaps isn't exactly being all you can be. Still, Less Murders = Good. MORE: From Kuff.

After death, inquiry finds most youth at Granbury juvie detention in isolation for unjustified reasons
Now that the new Texas Juvenile Justice Department is up and running, there's no time to lose in exercising its oversight function. Reports the Weatherford Democrat, "A state investigation of the Granbury Regional Juvenile Justice Center following the death of a 14-year-old Cleburne boy in October has raised questions about the role of the facility’s non-compliance with detention facility standards in the boy’s death." Said the paper, a TJJD "report released last week found several violations related to keeping the juveniles in isolation nearly all day on Oct. 10 outside of the physical presence of a juvenile supervision officer. The 11 residents of 'Alpha Pod' were kept locked in their rooms most of the day, not allowed to participate in educational and other activities as required and left without the supervision level required during daytime program hours, the TJJD investigation found." Further, "Investigators found that only one of the 11 residents of 'Alpha Pod' was 'confined for a reason justified by standards, namely the resident’s disciplinary seclusion status.'" In other words, 10 of the 11 kids in isolation at the time of the boys death shouldn't have even been there.

Borderline competency: Good question, no easy answers
Asks a prosecutor on the DA Association user forum, "What do you do with those VERY low functioning defendants who are already receiving services from MHMR and whose competency is borderline?... Seems they are getting more plentiful." While one wag replied, "Send them off to law school?," others including John Bradley noted there are no easy answers, particularly in the wake of budget cuts to mental health services in the most recent legislative session.

Constable resigns in lieu of prosecution
The DA in Lubbock won't pursue criminal charges against a local constable in exchange for his resignation and lifetime ban from serving as a peace officer.

H-Town burglar alarm fees don't pay for city services
In Houston, according to HPD's website, "The cost of responding to alarm calls for service in FY2007 was approximately $11.8 million dollars and exceeded the City's total annual revenues in that fiscal year ($7.99 million dollars) derived from permit fees and penalties associated with burglar, panic, holdup and similar alarm systems."

Balko: Anger vs. Lykos stems from 'efforts to change the culture'
Radley Balko suggests that in the Harris County District Attorney primary, "intra-party anger seems to stem mostly from [Pat Lykos'] efforts to change the culture in the Harris County DA’s office." Exactly. There's an odd nostalgia among her most ardent critics which Grits suspects can never be satisfied. It's a new century, and whatever happens in April or November, Johnny Holmes won't be walking through the door anytime soon.

Problem with texting while driving is the driving, not the texting
Fascinating. Fewer teens are driving and studies say cars are no longer the status symbol of freedom that they once were among young Americans, particularly in cities. Texting while driving is bad, argues Lisa Hymas at Grist, but more importantly, "we need to work urgently on making driving less necessary in the first place." Great line from Clive Thompson at Wired: "When we worry about driving and texting, we assume that the most important thing the person is doing is piloting the car. But what if the most important thing they're doing is texting? How do we free them up so they can text without needing to worry about driving?" How's that for reframing the question? I'm still rather amazed that Gov. Perry vetoed the texting while driving ban passed in Texas this year.

Iran, Pakistan, Mexico, None-Of-The-Above: Which is biggest threat to world stability?
This is nuts to me: From any rational American perspective - certainly for those of us living in border states - the biggest threat to stability in 2012 isn't Iran, surely it's from drug violence and instability in Mexico and Latin America, arguably followed by anti-western sentiment in already-nuclear Pakistan, where our troops are entrenched across the border for the foreseeable future. In Grits' book, I'd put high food prices (at least) third on the list. Why downplay instability in a nation that already has nukes, much less massive corruption and bloodshed on the US southern border, to proclaim Iran the ultimate threat? That's the sort of demagoguery that makes people vote for Ron Paul. Which is more dangerous for world security: A nuclear Iran or a starving Africa?

Fact check this
Greg Marx at the Columbia Journalism Review has an essay articulating numerous criticisms which have been gelling in Grits' own mind in recent months about so-called "fact checking" services like Politifact and the limits of the framework under which they operate, particularly regarding legal issues. I finished his piece and thought, "Damn, I wish I'd written that," which of course is the highest compliment one writer can pay to another. My biggest frustration with Politifact, et. al.: Grits despises the notion that fact checking should be somehow considered specialty work among journalists, implying that most journalists are mere mouthpieces for special interests who don't provide a significant truth filter between their sources and the public. That may be accurate as a practical, workaday matter, but it's not a model to aspire to.

'Texas prison burials are a gentle touch in a punitive system'

2012-01-05T09:22:00.000-06:00

There's an interesting if macabre story from the NY Times today with the same title as this post on a mostly hidden aspect of the system: the solemn, longstanding administration of a pauper's field for Texas inmates in Hunstsville dating from the earliest days of statehood in the 1840s (the Texas Republic had before then repeatedly rejected a central prison, which was pushed through in the first Texas state Legislature). See especially the accompanying slide show.

No last meal, anymore, but a final place to rest one's bones.

Inmates who die in TDCJ custody are buried there if no one claims the body, though "many family members fail to claim the bodies because they cannot afford burial expenses and want the prison agency to pay the costs instead. The same relatives who declined to claim the body will then travel to Huntsville to attend the state-paid services at the cemetery." According to the Times. "Prison officials have verified 2,100 inmates who are buried at the cemetery, but they say there may be additional graves. Professor [Franklin] Wilson recently photographed every headstone and estimated that there were more than 3,000 graves."

RELATED: From the Texas Prison Museum: “The Captain Joe Byrd Cemetery is located about a mile southeast of the Walls Unit on Bowers Boulevard. It covers twenty-two acres between Sycamore and Sixteenth Streets. The land was donated to Governor John Ireland in 1855 by Sanford Gibbs and George W. Grant. The deed describes the land as 'the same upon which convicts from the State Penitentiary have been buried since the establishment of said institution, said Burial Ground having been located there-on by mistake.'”

Turf wars may thwart justice solutions in Harris County

2012-01-05T07:59:00.003-06:00

Turf wars may scuttle the idea of an independent crime lab in Houston separate and apart from law enforcement, to judge by the response to the mayor's inaugural address ("Parker wants HPD to give up control of crime lab," Houston Chronicle, Jan. 5):

Two of Mayor Annise Parker's goals for her second term, as outlined in her inaugural address this week, may hinge on the cooperation of Harris County.

Parker said she intends to take the city's long-troubled crime lab from the Houston Police Department and make it independent; she also wants to phase out the city jail and house offenders in the county jail instead.

The HPD crime lab has been a headache for city leaders since 2002, when an audit noted unqualified personnel, lax protocols and shoddy facilities. Last month, HPD said its backlog of untested rape kits could be as high as 7,000. To date, six Houston men have left prison after retesting of evidence indicated they were convicted of crimes they did not commit.

Parker wants to make the lab independent of HPD and the city, overseen instead by a local government board similar to the Port of Houston Authority, whose members are jointly appointed by the city, county and other local municipalities. Mayoral spokeswoman Janice Evans said a proposal may come before City Council this spring.

County leaders say their Institute of Forensic Sciences already is independent, free from law enforcement influence. They point to its respected work and lack of a case backlog. Parker, however, said the city lab's future is not with Harris County.

"The area that I'm in control of is to have an independent crime lab," the mayor said Wednesday. "If that can become a regional crime lab where the county is a full participant, I'd love to see that happen. Sending all our work over to Harris County simply substitutes one government master for another government master."

County officials, by contrast, vowed to move ahead independently with rhetoric that smacks less of partisanship than old-school turf-war bickering, spiced with a smattering of juvenalia. (E.g., "Precinct 3 Commissioner Steve Radack said that if Parker thinks she has a better model than the county, she should pursue it on her own.") That said, I'm not sure how any entity with a taxpayer-funded budget can avoid a "government master," so short of creating some new taxing district or some such, your correspondent has difficulty imagining a solution which might please the mayor. Both sides seem entrenched, intractable, perhaps allowing soured personal relationships and partisan spite to interfere with their good sense and the public weal. It wouldn't be the first time, but it's not a great sign.

Meanwhile, Parker suggested phasing out city jails by creating a "sobering center," which sounds not unlike a suggestion from Harris DA Pat Lykos for "detox centers," as a front-end jail alternative:

Parker said the city jails could be phased out even without the type of joint processing center that bond voters rejected in 2007.

The city is negotiating to buy a property that would be used a "sobering center" to divert some inmates from the jail.

"If someone just needs a place to sleep it off, sober up, maybe get connected to some social-service help, we think we can accommodate that," Parker said.

Services, Evans said, could include help for the mentally ill, whom Parker said also must be diverted from jail.

Such steps could reduce the city jail population enough to allow the remaining inmates to be handed to the county, the mayor said.

The second idea makes sense to try, at least. On the crime lab, though, both sides sound needlessly obstructionist, driven more by the motive of defending political turf than improving science at the lab and in the courtroom.

Making crime labs independent is as important to unbiased sciences as "blinding" administrators of suspect lineups and photo arrays in witness identifications. You want crime lab administrators, much less line staff, outside the command and control of law enforcement because you don't want them to have a stake in the outcome. They're scientists; they're not (or shouldn't be) on one or another "side." Grits predicted a couple of years ago independent crime labs would become a political flash point, and it may remain so for the immediate future in Houston until the electorate changes some of the players and compiles a group capable of working together. Until then, without some pay-to-play beneficiary driving the train, an independent crime lab for now remains a good idea without a political constituency, and one that flies in the face of historic jurisdictional turf lines, to boot.

Never is the importance of money and self-interest in politics so apparent as when its absence hinders what everyone agrees are necessary and proper improvements.

On preconviction shaming and the role of the prosecutor

2012-01-05T06:21:00.000-06:00

Fort Worth criminal defense attorney Richard Henderson authored a response in the Star-Telegram to the Tarrant County District Attorney Joe Shannon and assistant DA Richard Alpert, who held a splashy press conference last week announcing a new policy of publishing DWI defendants' names on their website as a shaming tactic (discussed here on Grits). Wrote Henderson:

I would support a joint effort by the DA and the defense bar to prevent DWI, so long as it does not include the publishing of names on the DA's website.

The Texas Disciplinary Rules for lawyers specifically state that a lawyer is not supposed to seek publicity to gain an advantage in a proceeding.

Prosecutors have their own special rule stating this. They are to seek justice, not merely be advocates and seek convictions.

Alpert has stated that merely publishing the names is not a comment on the case for giving evidentiary details.

This contradicts what Alpert states on the website:

"Over the years, we have tried to make it clear to the public that during a 'no refusal weekend' there will be no way to hide the evidence of their intoxication. This year we are adding the promise that they also won't be able to keep their charges a secret."

Such rhetoric goes beyond merely publishing the names. The direct implication of having the name of a person charged with DWI on the DA's website is that the person is guilty.

All people are presumed innocent until found guilty in court. A police officer's finding of probable cause for DWI is not legal proof, yet that is all that is required for a DWI arrest.

Potential jurors will have access to the DA's website and the names of persons accused of DWI.

I think Shannon and Alpert mean well, but they need to rethink this policy and remember their role in the system.

Exculpatory forensics not disclosed to defense in capital salt poisoning case

2012-01-05T05:55:00.000-06:00

Via Food Safety News, Pam Colloff at Texas Monthly has a new story out this month about Hannah Overton, sentenced to life without parole for allegedly poisoning her child with large quantities of salt, questioning the conviction based on forensic evidence about stomach contents that wasn't turned over to the defense:

Dr. Michael Moritz, clinical director of pediatric nephrology at Children's Hospital in Pittsburg, is a specialist in children's kidney diseases. According to Texas Monthly, he published a seminal paper on salt poisoning in 2007.

Moritz was brought in when Cynthia Orr, Overton's appellate attorney discovered the records of Burd's stomach contents not previously disclosed to the defense. They showed salt levels were not elevated with the boy arrived at the urgent care clinic.

In his earlier research, Moritz found children who accidentally ingest too much salt often fit a narrow profile, living in the foster system or being from abusive homes, and suffering from a disorder known as pica.

While Burd was depicted by Texas prosecutors as being a "normal" four-year-old boy, TM's Pamela Colloff provides extensive biographical details on the Overtons and the foster boy they wanted to adopt that tell otherwise. Andrew's adoption supervisor suspected the boy had pica, an eating disorder.

It involves eating largely non-nutritive substances, sometime including clay or chalk or other materials.

Moritz said the stomach contents report is evidence no murder was committed. "If someone was trying to murder Andrew, they would have restrained him and prevented him from drinking water, " Moritz's affidavit says. "The very dilute gastric sodium contents suggest...that he had unrestricted access to water."

Moritz goes on to say: "There is not a single piece of evidence which suggests that Hannah Overton salt-poisoned Andrew." He says it is far more likely Andrew "salt-poisoned himself."

Currently again on appeal to the Texas Court of Criminal Appeals, Overton's conviction was made possible by jury instructions. It made no difference whether Overton forced the boy to eat salt or he did it on his own and she failed to get him timely medical attention.

Read Colloff's whole story here.

Is John Bradley the worst American prosecutor of 2011? ... and other burning questions

2012-01-04T07:57:00.004-06:00

Here are a few, disparate items that won't make their way into full Grits posts but which deserve readers' attention:

Is John Bradley the worst American prosecutor of 2011?
At The Agitator, Radley Balko has placed Williamson County DA John Bradley on his list of nominees for "The 2011 Worst Prosecutor of the Year Award." Of course, he's up against quite a rogues gallery of competitors, and as of this writing is in second place. Go vote.

Send her to jail
Joe Gamm at the Amarillo Globe News has an article on the growing proportion of female inmates and the classification problems it creates in county jails. Sheriffs all over the state are dealing with the same issue.

Dallas man freed after 31 years after prosecutor misconduct revealed
A man in Dallas, Ricky Wyatt, has been released after 31 years after prosecutors agreed there was prosecutorial misconduct in the case where information wasn't turned over to the defense that would have changed the outcome of the trial if jurors had seen it. "Both [Dallas DA Craig] Watkins and Wyatt's attorney, Jason Kreag of the New York-based Innocence Project, said prosecutors withheld evidence that clearly disputed testimony by the victim that her attacker did not have facial hair and weighed significantly more than Wyatt did at the time." Grits recently argued that, given recent court precedents, in the near future prosecutorial misconduct claims may be the most fruitful avenue for non-DNA innocence cases because it's the one area where there's a clear, viable legal path to a new trial. This case is precisely an example of that.

Harris DA primary battle marred by challenger missteps
At the Houston Chronicle, Brian Rogers analyzes the primary battle to unseat incumbent DA Pat Lykos. Grits' prognostication: Her opponent, Mike Anderson, started off on the wrong foot, can't unseat her without attacking her viciously, and will lose most GOP women if he does, which in a Republican primary would be deadly. Anderson's poor positioning stems mainly from poor initial strategy by his campaign, IMO, and may have already doomed his candidacy. From the perspective of a political strategist, I could envision a path to unseat this incumbent, but Anderson chose a different one. He's already missed the opportunity to frame this (very short) campaign around wedge issues that might unseat her, and instead his bid looks from the outside as though it results from some highly personal squabble. The GOP establishment didn't want this fight, which even Anderson says he regrets undertaking (Big Jolly reports Anderson told him "he wished he hadn’t been convinced that he had to file"). Anderson could have been a very difficult opponent for Lykos, and may still be, but his own missteps have somewhat diminished the threat. Murray Newman can mock Pat Lykos all he wants, but if his own candidate doesn't improve - and improve by ceasing to pander to folks with Murray's views - Pat Lykos will get the last laugh on election day.

County would resurrect empty TYC facility as juvenile campus
Brown County may take over the old Ron Jackson Unit II detention center that was closed in the Texas Juvenile Justice Department consolidation and use it for the county's own, local juvenile detention center. Locals say it is "constructed better than the county’s current facility and is not in a flood plain," which are both strong arguments for a move. If counties are going to be responsible for ever-more juvenile programming, they'll need adequate facilities they haven't historically provided.

'This Old Courthouse: Harris County edition'
Paul Kennedy has pics of the renovated historic courthouse in downtown Houston which will soon house the 1st and 14th Texas Courts of Appeals.

Sam Sparks on humor in the courtroom
At Texas Lawyer's Tex Parte Blog, Federal District Judge Sam Sparks in a video interview discusses his recently controversial use of humor in the courtroom, and discusses the need for judges to provide on-the-job training to inexperienced attorneys from the bench.

So, you've been disappeared ...
See a tip sheet for American citizens indefinitely detained by their government.

'End of the Road for Bonnie and Clyde'
See a remembrance of Texas' most famous outlaws, Bonnie and Clyde, from a local paper in Bastrop, LA, where the couple was slain. Remarkably, after all these years, "Every now and then, visitors leave flowers at the site" of their ambush.

News you can use from the Texas Public Policy Foundation

2012-01-04T07:55:00.004-06:00

Check out these links from the Texas Public Policy Foundation's most recent e-newsletter from their Center for Effective Justice:

New TPPF Publications

“Ten Truths About Juvenile Justice Reform” by Jeanette Moll

”The Texas Model: Comprehensive Juvenile Justice Reform” by Marc Levin and Jeanette Moll

“The Texas Model: Adult Corrections Reform” by Marc Levin

Center for Effective Justice and Right on Crime in the News

TPPF Juvenile Justice Policy Analyst Jeanette Moll’s Houston Chronicle op-ed on priorities for new Texas juvenile justice agency

Texas Tribune Quotes Levin in “Hoping to Reform Justice System, Groups Eye Sunset Review”

TPPF’s Right on Crime initiative featured in The Guardian (UK) article: “Oddly, Texas can teach the UK a thing or two on criminal justice”

Right on Crime Named Top Criminal Justice Story of 2011 by The Crime Report

Levin quoted in Houston Chronicle article on the District Attorney’s decision to discontinue prosecuting trace drug cases as a state jail felony

Gibson Guitar CEO joins Right on Crime initiative (WKNO-FM NPR)

Jeanette Moll quoted in Texas Tribune article on new Texas juvenile justice agency

“Right on Crime and the Conservative Focus on Juvenile Justice” – Juvenile Justice Information Exchange

Canadian Broadcasting Company: “Texas Conservatives Reject Harper’s Crime Plan”

Listen to TPPF Primer on Mental Illness & Texas Corrections and Related Podcast

TPPF held a policy primer luncheon on more thoughtful approaches to addressing the intersection of mental health and corrections on December 7 which was attended by more than 70 stakeholders. Speakers included key Texas policymakers and experts on the subject. Listen to the full program.

TPPF’s Vikrant Reddy’s December podcast on mental health and corrections

Center for Effective Justice Presentations & Legal Briefs

Amicus Brief authored by TPPF’s Vikrant Reddy filed in the U.S. Court of Appeals for the 11^th Circuit (Legal brief in opposition to Florida’s application of strict criminal liability (lack of any intent element) in its Controlled Substances Act)

The Right Prescription for the Mentally Ill in the Texas Corrections System by Marc Levin (Presentation to 4^th Annual El Paso County Mental Health Law Conference)

Thinking Outside the Cell: A Roadmap to More Cost-Effective Corrections by Marc Levin (Presentation to Texas Federation of Republican Women State Convention)

Arresting the Runaway Growth in State Criminal Law by Marc Levin (Presentation to the Civil Justice Reform Group)

Georgia latest southern state pushing de-incarceration reforms

2012-01-03T16:12:00.004-06:00

Georgia is the latest conservative, southern state to embark on a path of reducing incarceration to reduce the corrections budget, and some of their leaders are citing Texas among their inspirations, reports the Atlanta Journal-Constitution ("Georgia rethinks its prison stance," Jan. 3). Here's a notable excerpt:

The General Assembly this winter will debate a shift in emphasis toward alternatives to prison time for nonviolent offenders, as suggested by a special council appointed last year to study the state’s prison population and criminal code. The effect of its recommendations would be to send fewer people to jail for property and drug crimes and boost alternative punishments.

That shift has the firm backing of Gov. Nathan Deal, who said it is time for Georgia to follow the lead of Texas, South Carolina and other Southern states and take a more effective approach to punishment.

He said Georgia, which now spends more than $1 billion a year on state prisons and has seen its inmate population double in the past 20 years, simply cannot afford to keep the current sentencing regime.

“We’re at a point in time where the necessity for doing something has gotten so big that to turn our head and pretend the problem does not exist is not responsible government,” Deal said in an interview.

“If we don’t make some changes, we’ll see an ever-increasing percentage of our state budget having to be allocated to our correction system. That takes away funding for things like education and other areas where many think the money is better spent.”

Among the recommendations that will be taken up in the Peach State legislature:

Changes to the criminal code proved to be more controversial among those on the special council, especially when it came to drug offenses. But the group reached consensus on some changes, including:
Increasing the threshold that makes a theft a felony to $1,500 -- up from the current $500 which was established in 1982 -- and increasing the felony threshold of theft by shoplifting from $300 to $750.
Adjusting sentencing ranges for burglaries, with more serious punishment reserved for break-ins of homes and less severe sentences for burglaries of unoccupied structures, such as tool sheds, barns and other buildings.
Giving judges a “safety value” that would allow them, after making certain findings, to depart from mandatory sentences in the current law for drug trafficking.

More controversial in Georgia has been a measure Texas approved in 2003 mandating probation on the first offense for the lowest level drug offenses (in Texas' case, possession of less than a gram of a controlled substance, which is a state jail felony). A prosecutor on the panel argued that "To give only probation for having small quantities of illegal drugs in effect 'decriminalizes drug possession.'" This view fails to recognize that probation for many offenders can be a more difficult punishment than incarceration, particularly if it requires them to change their lifestyle. Jail or prison time can be waited out; fighting addiction, earning a living, providing for a family, etc. ... those things are a lot harder than prison for many offenders, particularly addicts. Or at least that's the premise on which Texas' 2003, '05, and '07 probation reforms were based.

As a southerner (it ain't "Grits" for nothing), I'm glad to see this happening in the South: Texas, Arkansas, Mississippi, and now Georgia (at least) have witnessed conservative champions rise up to denounce mass incarceration as too costly and unnecessary.

The Texas Legislature, of course, as Grits readers know, this year regrettably departed from its reformist path, allowing our prisons to fill up again (they're projected to be beyond capacity by 2013) and reducing their funding without doing much to reduce the numbers of prisoners. Next session, for a variety of reasons, I doubt it will be nearly so easy to punt on these questions, forcing Texas to once again confront the economic costs of its tuff-on-crime self image and seek ways to reduce the expense. The only other option is to raise taxes to build more prisons, creating a tension between fiscal conservatives and the tuff-on-crime crowd, particularly prosecutors, whose political stance invariably is that, when it comes to their own budgets and prisons, money should be no object (and you're "soft on crime" if you say otherwise). By 2013, with prison health over budget, line-staff employment churning, and more prisoners entering TDCJ by the day, that tension will force Texas to either double down on de-incarceration reforms, following our southern brethren, or else tax-and-spend is the only way out of the mess we're in, which is exactly the reason Georgia is acting now.

RELATED: Via Sentencing Law & Policy, from The Crime Report, "Getting prison numbers down for good." From the Kansas City Star, "Tougher sentences boost cost of justice in Kansas." And from The Oregonian, "Bring on the debate on corrections."

As predicted: State bar dismisses grievance against John Bradley from Morton case

2012-01-03T14:56:00.001-06:00

Grits is shocked, shocked I tell you that the state bar announced it has dismissed the ethics complaint filed against Williamson County DA John Bradley stemming from alleged prosecutorial misconduct in Michael Morton's false conviction, a development the Austin Statesman reported today. Except ... oh yeah ... Grits predicted earlier the state bar "almost certainly" wouldn't do anything. As pointed out then, "The State Bar didn't even discipline a [former] DA or judge from Collin County after the prosecutor admitted in a deposition they'd been sleeping together during a capital murder trial." If that won't get a prosecutor sanctioned, how could one expect action stemming from the Michael Morton exoneration?

I'm not a lawyer, but to me Bradley calling in all the prosecutors involved for a meeting to review evidence before their depositions (unbeknownst at the time to Morton's attorneys) struck me as straight up evidence tampering, giving the alleged perpetrators an opportunity to get on the same page and get their story straight while muddying independent recollections. The state bar, though, apparently said that was okay by them.

Granted, the complaint against Judge Ken Anderson may be stronger on the merits, if potentially hindered by a statute of limitations, but Bradley's politically convenient, belated, and half-hearted mea culpa doesn't mitigate the fact that he fought for years to keep Judge Anderson's misconduct from being exposed, mocking Mr. Morton's innocence claims while obstructing every possible avenue for proving them. If that wasn't technically unethical according to state bar rules, it certainly was heartless and fundamentally antithetical to the prosecutor's oath to seek justice, not convictions.

Examples like this have convinced your correspondent that the Legislature must find some way to beef up sanctions for prosecutorial misconduct and/or implement preventive procedures, e.g., mandating open prosecution files. The courts won't do it, and it's wholly evident the legal profession is incapable of policing itself on questions of prosecutorial misconduct.

See related Grits posts:

And more generally on the subject of prosecutorial misconduct:

See also the report (pdf) by Morton's attorneys on proseuctorial misconduct in the case and a deposition (pdf) of Bradley former appellate chief who worked on the Morton case, current Williamson County Court at Law Judge Doug Arnold.

MORE: From Simple Justice where, reacting to this case, Scott Greenfield accused the Texas state bar and Supreme Court Justice Clarence Thomas of "horseradish vision."

Poor Mexico: Reports from the cartel wars

2012-01-03T09:34:00.000-06:00

A number of stories related to Mexican drug cartels and their relationship with US-side prison gangs, as well as other articles about US-side cartel infrastructure and organized crime in Mexico and Latin America, caught my attention over the holidays and may interest Grits readers:

Houston Chronicle: Cartels cooperate with prison gangs
Austin Statesman: Authorities work long hours to stamp out Mexican mafia
Brownsville Herald: Prison gangs enforce brutal reign
SA Express News: Prosecutors like RICO
Huffington Post: Mexican drug cartels recruit young latinos in Southern California
Catholic Online: Mexican drug cartels recruiting American teens
Gant News Service: DEA: Mexican drug cartel extortion moving more into US
McAllen Monitor: Gulf cartel lieutenant linked to various incidents on US side
AP: Mexican cartels build own national radio system
Wired: Radio Zeta: How Mexican drug cartels stay connected
Global Post: Mexico police tortured suspects in Ciudad Juarez, human rights body says
El Paso Times: Juarez forensic team a work in progress
Honduras Weekly: Holding the United States accountable

Reading these stories reminds me of Porfirio Diaz's famous lament: "Poor Mexico, so far from God, so close to the United States!"

Private Prison Foibles

2012-01-02T09:31:00.001-06:00

Last week the blog Texas Prison Bidness gave us their list of the top 5 private prison stories in 2011:

1. CCA takeover would make Harris County Jail largest private prison

2. Resistance to private immigrant detention centers grows

3. ALEC and private prison lobbying exposed

4. ICE's 'detention reforms' benefit private prison contractors

5. Lawmakers attempt to privatize state jails

In related news, at this point the McLennan County Jail in Waco appears cursed by the foolish management decision to build excess capacity and let a private company manage the facility. Now they're stuck with an empty, money-losing jail and a management contractor accused of abuse that recently cost them an immigration contract with the feds. Reported KXXV-TV (Dec. 27):

The McLennan County Commissioners Court is giving Community Education Centers (CEC), a third party management company, more time to generate revenue at one local jail, despite their company being accused of abuse at another area facility.

County commissioners decided to renew a contract with the CEC for the downtown McLennan County jail Tuesday morning. The jail is currently empty while improvements are being made to bring the facility to state guidelines.

The court agreed to extend the CEC's operation of the downtown jail just days after the county had learned about abuse claims from the McLennan County Jack Harwell Jail (another facility ran by the CEC).

"I really don't know what is involved till we get the facts in," said Kelly Snell, McLennan County Commissioner. "I can't speculate on rumors."

The rumors include complaints filed by inmates about not receiving medical treatment and proper care while in the Harwell facility.

Immigration and Customs Enforcement (ICE) recently moved all 80 of their existing inmates out of that facility after it investigated those complaints.

The ICE investigation must have come up with something if they transferred all their inmates as a result, so I suspect there's more than "rumors" behind the decision to remove them. It's difficult to feel sorry for McLennan County commissioners, who brought this on themselves, but of course it's taxpayers who bear the true burden. This star-crossed project was ill-conceived from the beginning, with today's financial woes mere recompense for commissioners' decision to gamble with taxpayer money on unneeded, speculative jail construction.

See prior Grits posts:

Haskell cop who planted drugs at traffic stop target of civil suit

2011-12-31T11:04:00.000-06:00

A police officer from Rick Perry's hometown of Haskell pleaded no contest two weeks ago "to fabricating physical evidence ... and was sentenced to seven years probation" for planting meth on a suspect at a traffic stop, the Abilene Reporter-News reported (Dec. 31). Now, another man has filed a civil-rights lawsuit claiming the same officer planted drugs on him, resulting in the loss of his job as a car salesman after his arrest and photo were published on the front page of the Haskell weekly paper. The officer told a judge he had supporting information from an unnamed confidential informant in order to obtain a search warrant before allegedly planting the drugs, according to the suit.

The officer, William "Bill" Glass, sounds like your typical, Tom-Coleman style gypsy cop: "Apart from working at the Haskell Police Department, public records show Glass has been employed with at least seven law enforcement agencies" since 1995.

This could get (even more) ugly. Will more people come out of the woodwork to claim Officer Glass set them up? Once may be an outlier; twice (if allegations are true) would make a pattern. In the Dallas fake-drug cases, where informants helped police set up defendants using doctored pool chalk, investigators found two dozen defendants who'd been convicted and/or deported based on false allegations. How many more, one wonders, were victims of this fellow's frame-up jobs before he was finally caught?

Does pre-conviction shaming deter DWI or just obliterate presumption of innocence?

2011-12-30T08:37:00.001-06:00

The Tarrant County District Attorney's website is posting the names of everyone charged with DWI as a supposed deterrent to drunk driving over the holiday weekend, reports the Fort Worth Star-Telegram. But this pre-conviction shaming sanction has its critics:

Defense attorneys, however, said the postings could violate the civil liberties of those accused of driving drunk.

"I absolutely condemn driving while intoxicated ... but these people are presumed innocent," attorney Richard Henderson said. "I just don't think that's right."

Attorney Steve Gordon, president of the Tarrant County Criminal Defense Lawyers Association, said the postings could violate state ethics rules for prosecutors.

"There are some people [members] who are very upset about it," Gordon said. "Is he going to pull the information on the case when he loses?"

Good question about what happens when the DA loses a case - haven't they then just slandered somebody who didn't deserve it? In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions. This seems like putting the cart before the horse.

For the DA to do this raises a host of questions about pretrial punishments, presumption of innocence, etc., but commercial media do the same thing all the time. The broader and seldom-broached question is whether it need be reported at all? In Britain, by contrast, most information about criminal prosecutions is confidential pre-conviction. As a young man, I considered that an outrageous restriction on the press, but anymore I'm not so sure. As Grits has written previously, "much US crime coverage is quite poor, sensationalistic, frequently misleading, one-sided, and often flat-out counterproductive. In Texas, there are at most half a dozen news reporters who I consider to produce high-quality crime beat coverage, and most of the rest often do more harm than good. That's not a great ratio."

A topic Grits hopes to delve into more deeply in the coming year is the extent to which such pretrial publicity - whether it's the DAs doing it themselves, the Austin Statesman publishing booking photos, a Denton art student putting arrests on Twitter, or Nancy Grace flailing defendants in nationally publicized cases - serves or harms the public interest. Stuff like booking photos, arrest logs, jail logs, etc., are historically public data but nobody but insiders, journalists, and those viewing it in a professional capacity would, as a practical matter, ever access it. Now it can be easily disseminated electronically, but doing so before the conclusion of a criminal case, especially high-profile ones, can be highly prejudicial. Shaming can properly be in and of itself a punishment - indeed, some sentencing theorists actively promote shaming sanctions - but punishment should occur after a conviction rather than merely as the consequence of an accusation that may prove unfounded.

Grits fears the issues surrounding the Tarrant DA's DWI arrest list are merely the point of the spear, and that widespread publication of such data will become a major flashpoint among 21st century privacy concerns. I noticed that over at the Texas Tribune, their largest database app (government employee salaries), drew 125 times as many page views as their most popular news story, at 19.1 million page views compared to 153,000. Their second most popular data app was their Texas inmate database, a service which duplicates one on the TDCJ website, which came in at just over 5 million page views.

With web-traffic flagging, more media are putting unfiltered government data online precisely because of numbers like those - they look at their web traffic and see their prose isn't nearly the draw they hoped it might be, but database apps get much more traffic. Lots of papers these days are putting booking photos online to draw eyeballs, but like the Trib's employee salary database, its draw is mostly a function of voyeurism, not because the practice is a boon to public safety or a driver of improved public policy. Grits considers it ethically questionable for the media to publish booking photos and unproven allegations about non-public figures, and even more problematic when the Tarrant DA engages in public shaming while defendants still retain a presumption of innocence.

Unregulated bail bonds can burn smaller counties

2011-12-29T10:26:00.000-06:00

The Dallas Morning News offers up a cautionary tale ("Smaller Texas counties struggle with bail bond regulation," Dec. 29, behind paywall) regarding bail bond regulation, or the lack thereof, in smaller Texas counties (with populations below 110,000, which are not required to have a local bail bond board. They tell the story of

a West Texas bail bond company [that] ended up in a financial bind.
The company shut its doors. Dozens of its clients forfeited their bonds when they failed to show for court dates.

And when county officials tried to collect what was owed, they discovered that the bail bond company’s listed assets didn’t match with reality.

Dozens of Texas counties face similar prospects. At a time when, critics say, some larger counties don’t have enough authority to regulate bail bond companies, smaller counties have even less.

Bail bond boards are required in counties with at least 110,000 residents. The boards have significantly more power than the sheriffs responsible for regulating bail bondsmen in smaller counties.

For example, bail bond boards require security deposits of “not less than $50,000” from licensees. But sheriffs cannot impose the kind of licensing system found in bail bond board counties, according to a state attorney general’s opinion.

That means less oversight of such companies and potentially more trouble for counties trying to recover bond money.

The counties that lack bail bond boards “are just the wild, wild West,” said Bryan Clayton, first assistant district attorney for the 119th Judicial District, covering Tom Green County and two nearby counties.

Ed Timms and Kevin Krause have been doing a great job on their bail series throughout 2011, and this end-of-the-year special is no exception. Terrific stuff, guys.

'Justice and Prosecutorial Misconduct'

2011-12-29T08:13:00.002-06:00

Today's New York Times includes a staff editorial focused on Judge Ken Anderson's role in Michael Morton's false conviction out of Williamson County. Opined the Times, "While this process is an urgent matter for Mr. Morton, it is also a test of American justice — whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction." They acknowledge, though, that it's a test that's been long-ago, many-times failed, as "bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors."

The Times recommends that "Courts should more closely supervise prosecutors by using pretrial conferences where prosecutors must say what they are disclosing under the Brady rule and what they are withholding. Prosecutors must understand that they will be held accountable — with strong criminal sanctions — when they violate their constitutional duties." Criminal sanctions, to me, though, are mostly pointless because there's no one except the DA's offices themselves with jurisdiction to prosecute such cases and no incentive for them to do so aggressively. OTOH, I like the pretrial conference idea, and will henceforth add that to the grab bag of suggested legislative solutions which Grits has been compiling on the subject.

'Beyond DNA': Innocence focus in Dallas shifting to non-DNA cases

2011-12-29T07:05:00.001-06:00

There's an excellent piece in the Dallas Observer this week (Dec. 29) by Leslie Minora titled "Beyond DNA, Difficult Tests for the Justice System," which brings readers up to speed on a pair of non-DNA exonerations in Dallas this year and the future of innocence cases. Particularly troubling was the case of Dale Duke, who accepted a no-contest plea on a 1992 sexual assault he always denied in order to stay out of prison, but

In an Orwellian twist, prosecutors brought Duke back to court in 1997 and claimed he did not complete the treatment program. In effect, Duke violated the terms of his probation by not admitting to a crime he didn't commit. Duke took a Tuesday off work as a customer-service assistant at Eckerd to appear in court. He never returned to that job. The judge revoked his probation and saddled him with a 20-year prison sentence.

Watkins' Conviction Integrity Unit found corroborating evidence for Duke's innocence claims in their files that had never been turned over to the defense, which was the basis for overturning his case. The judge ruled that, with the evidence prosecutors concealed back in 1992, no reasonable jury would have convicted him. Though four of the 17 exonerations under DA Craig Watkins have been non-DNA cases, former public defender

Michelle Moore worries that the unit's gears are sticking and cases that could be moving forward more quickly are stalled. "I think I see the tendency now to be overly cautious and it's to the detriment of the innocent man," she says.

"I get that sometimes it's not as clear-cut as a simple DNA test, because that's a gold standard, but there are cases ... where there should be some things happening," she says, though she wouldn't mention any specifically, fearing they would take even longer. "[Russell Wilson] is a very well respected attorney; he's the nicest man on the planet. I just want to see more action," Moore says.

Granted, she concedes the system would naturally slow down as the DNA cases thin out and the question of guilt or innocence becomes thornier and more subjective. "I'll be honest with you: We took the easiest cases first, the ones we could prove definitely by DNA testing," Moore says, but she's still concerned that the Conviction Integrity Unit is simply not visiting prisoners, administering polygraphs and calling victims as expediently as it once did.

Grits has said in the past that non-DNA case are "the future of the innocence movement," and this article aptly explains why. DNA exonerees, Minora points out:

occupy a troubling time in criminal justice history. Their arrests, and the arrests of nearly all of the Dallas County exonerees, occurred from the early 1980s to the early 1990s. In this decade-long window, DNA samples were collected because blood-type testing was available, but the samples were not tested with the technological acumen that's been developed since.

Starting in the mid-1990s, the testing of DNA evidence became standard protocol, meaning the number of incarcerated people who can be exonerated by previously untested DNA evidence is finite, with few exceptions.

Tis true. In most older cases, DNA either wasn't collected or wasn't kept, and it only exists in the first place in around 10% of violent crimes. In essence, DNA provided the equivalent a statistical sampling of innocence cases and a unique window into their causes.

"Now we've shown that there are wrongful convictions, so now our conversation can be extended to eyewitness identification, investigative techniques, even prosecutorial misconduct, the culture of district attorney's offices ... and our failure to live up to the code of criminal procedure," seeking not only convictions, but justice, Watkins says.

Williamson County DA John Bradley raised his head out of his electoral foxhole long enough to put a devilish spin on the quest for non-DNA exonerations. He:

said as more DNA cases are resolved and there are fewer of them, organizations like the Innocence Project must take on new kinds of cases. "We have an Innocence Project, therefore there must be innocent people," he says, leading up to his point that "just as we sometimes wrongfully convict a person, sometimes we wrongfully exonerate a person."

Ironically, given that Mr. Bradley is commenting on it, in the near term, prosecutorial misconduct - particularly withholding exculpatory evidence, as notoriously occurred in the Michael Morton case on his predecessor's watch - may be the quickest route to exoneration. That's what got Mr. Duke out.

Besides so-called "Brady violations," though, the concern was expressed by others, IMO accurately, that "DNA evidence may have raised the bar to a level too often unattainable by cases without it." Certainly there are still categories of non-DNA cases to mine for valid innocence claims. An examination of arson cases by my employers at the Innocence Project of Texas and the state fire marshal, initiated at the recommendation of the Forensic Science Commission, could discover false convictions based on flawed forensics testimony. Nobody has thoroughly vetted (nor to my knowledge, even identified) the 2,000 or so cases where former Fort Bend Sheriff's Deputy Keith Pikett claimed to have used his dogs in "scent lineups." And there are other similarly discrete categories of cases to explore.

But looming over all such cases, and indeed, though unstated, over this entire article, was a decision by the hard-line wing of the Texas Court of Criminal Appeals this summer in Ex Parte Robbins, in which the court overtly realized fears that DNA "raised the bar" for exoneration too high. Particularly in cases centered around bad forensics, the Legislature will likely need to adjust the habeas statutes for anyone to actually make use of them in junk science cases.

So I agree, the future of the innocence movement must inevitably move "beyond DNA," and on the policy side in Texas where I work, it has, with the passage of eyewitness ID legislation and requiring corroboration for confidential informants, in particular. But those are front-end fixes. On the back end, access to DNA testing has been expanded and the Lege has provided compensation for exonerees. But after Ex Parte Robbins, there likely needs to be a separate legislative fix before the courts will be able or willing to act on significant numbers of non-DNA "actual innocence" habeas corpus claims - particularly regarding junk science, from arson cases to dog-sniffs - however valid or compelling.

Juvie, adult prison guards atop list of high-turnover state jobs

2011-12-28T12:22:00.001-06:00

The combined turnover rate for Texas juvenile and adult correctional officers (i.e., prison guards) in FY 2011 was 23.4%, according to a new report (pdf) on state employee turnover by the state auditor. That's 22.3% for adult COs, and 39.6 for JCOs, including layoffs. Other key highlights:

Statewide, 29.6% of turnover came from involuntary separations - either firings or other reductions in force (RIF), sometimes for budgetary reason, with 14% of departing employees dismissed for cause and another 9% resigning in lieu of dismissal.

The Texas Education Agency had a higher one-year turnover rate than TDCJ, but that's a statistical fluke resulting from a budgetary RIF. TDCJ "accounted for the largest percentage of separations (29.6 percent) within the State. The majority of the separations at TDCJ during fiscal year 2011 were voluntary. TDCJ’s turnover rate was 19.2 percent in fiscal year 2011."

The most experienced staff are more likely to retire these days: Statewide across all agencies, "Between fiscal years 2007 and 2011, retirements increased by 40.6 percent." (Some of those folks may still be working: A wag might add that even Governor Rick Perry has taken retirement, and is surely counted among those statistics.) The number of voluntary separations increased 12.9% over last year.

"Thirty-four state agencies experienced reductions in force. The Texas Youth Commission, the Texas Education Agency, and the Department of Criminal Justice accounted for 72.6 percent of all staff reductions due to reductions in force in fiscal year 2011."

Reductions as TYC was merged into the new Juvenile Justice Department accounted for a large chunk of involuntary separations: "The three job classification series with the most separations as a result of reductions in force in fiscal year 2011 were Juvenile Correctional Officers, Program Specialists, and Administrative Assistants."

TDCJ lost 8,116 employees in FY 2011, 3,025 of them via involuntary separation (including layoffs).

The turnover rate at the Department of Public Safety was 9.9%, with 66 involuntary departures out of 846 total.

Via the Austin Market Examiner.

What proportion of young people gets arrested?, or, 'We are the 41%'

2011-12-28T09:55:00.003-06:00

There are some false memes in the criminal justice system about which even those who work in the field have serious misconceptions, often fundamentally misunderstanding the reality of the system they work in because of professional myopia.

A great example may be found in the recent writings of former Harris County prosecutor turned defense attorney and blogger, Murray Newman, who has a lengthy post up complaining that people who never have contact with the criminal justice system still get to vote and thus give us elected officials like his nemesis Harris County District Attorney Pat Lykos, etc., etc.; if you read Murray's blog it's all familiar territory, and this post isn't meant to defend or criticize Lykos (or Murray, for that matter). But Grits feels compelled to dispute a central premise around which much of the rhetoric in that essay revolves: Writes Newman, "Let's face it, as a wise Homicide Investigator once told me, we deal with probably less than 5% of the population (if that much). The President, the Governor, or the Legislature can enact laws that affect us all, yet most citizens' involvement with the criminal justice system comes from jury duty."

Following that theme, Murray spends much of the rest of the post discussing the differing perspectives of "the 5%" and "the 95%," playing off of the Occupy Wall Street movement's "We are the 99%" meme. The "95%," in Murray's worldview, are the average citizens who never come into contact with the justice system except for jury duty. Let's leave aside the oddity of the premise that the criminals referenced by Murray's Homicide Investigator friend are more likely to have an informed opinion about who would make a good DA than Republican politicos or people who sit on jury duty. Instead, let's take a closer look at that 95% number.

There's a sense in which it's formally accurate: At any given time, about 4% of adult Texans (1 in 25, or around 3/4 million) are under direct supervision of the justice system, either in prison, jail, on probation, or on parole, according to the most recent data. But more people are charged than convicted, and many more are arrested than charged. So in a broader sense, a lot more people than that 4% have brushes with the justice system, particularly early in life. However, even Grits was surprised to see a recent study published estimating that "between 30.2% and 41.4%" of youth will be arrested before they're 23 years old (excluding arrests for minor traffic violations). That's up from 22% of the population in a cohort studied in the '60s. So it's never been 5%, but today the figure is higher than ever.

In the future, then, will the politics of criminal justice change with generational demographics? Murray's dreamworld where bad guys who break the law are just 5% of the public and "the 95%" need never really think about the justice system was never more than wishful thinking. But for a generation among whom a third or more will face arrest and prosecution, it's an almost absurdist contention.

All this to say, as today's generation of youth ages, a greater number of adults than ever will have been arrested on charges they consider either reasonable or unfair, humiliated or treated respectfully through a jail booking, faced a prosecutor who was either fair, unreasonable or somewhere on the spectrum in between, sought an attorney and found (or been assigned) a good or a bad one, and have memories of the whole experience burned into their souls. Are such folks the system's frequent flyers? No. Do they remember the cold smell of jail, the behavior of police and jailers, the treatment of other inmates, hours waiting in a cell or "on the bench," the anxiety about the strength of friendships or family ties as they waited to be bailed out? Probably, yes. That means that many aspects of the criminal justice system are not, in fact, merely theoretical for a substantial block of voters. It's a disorganized and relatively unconsidered constituency, in political circles, at least, but it's not a small one.

Are such memories front and center when people head to the polls to vote for a new DA? Perhaps not, because that's not how these races are run. Candidates in contested campaigns for judge, DA or Sheriff typically tell people to vote based on fear of some dangerous "other" (killers, sex offenders, drunk drivers, etc.). Candidates from both parties routinely ignore (or like Murray, are in denial about) the common experiences of the justice system by a legion of less serious offenders, so questions about how the average person might want to be treated never come up. The terms of mainstream political debate just won't allow it for fear of being labeled "soft on crime."

It's not inevitable, though, that that will be the case forever. Part of the change brought about by the innocence movement - and cases like the Michael Morton exoneration in Williamson County - has been that DAs and the tuff-on-crime crowd can no longer ignore the fact that the system's biggest errors are now well known to most voters, who can suddenly identify with the possibility such mistakes could happen to them or their loved ones. Similarly, the dynamics of courthouse politics may subtly but significantly shift over the years if a large proportion of today's youth grow up with personal experience as criminal defendants and, in some cases, as much empathy for people caught up in the justice system as respectful awe of prosecutors of police.

Murray's right that a majority of voters in the April GOP primary won't know much about criminal justice beyond the scope of an occasional round of jury duty or the flotsam they see on the nightly news. But he overestimates the extent to which those caught up in the justice system represent a tiny, marginal class. It's not such a small group, these days, just an incoherent one.

Battle of the yard signs heating up in Williamson County

2011-12-27T17:22:00.001-06:00

In Williamson County, vandals are leaving reminders on John Bradley's yard signs of the District Attorney's role delaying Michael Morton's exoneration by opposing DNA testing of a bloody bandana for years on end:

Via the Wilco Watchdog

Ouch! Grits doesn't condone vandalism, but you gotta admit that's a poignant image, borne of a dark humor. For anyone familiar with the story, little more need be said, but Wilco Watchdog says most of it anyway.

Meanwhile, speaking of yard signs, the Watchdog reports that attorney Adam Reposa has made up hundreds of these yard signs targeting Williamson County District Judge Ken Anderson, who prosecuted the Michael Morton case and failed to turn over exculpatory evidence to the defense counsel or the court.

Who'da thought? The battle of the yard signs in Wilco is heating up.

UPDATE (Dec. 28): More from KXAN-TV.

Clearing the decks: Blog posts that might have been

2011-12-27T08:07:00.002-06:00

Let's clear the decks of a few items that, but for the holidays, probably each deserve more discussion than these brief blurbs. Feel feel to provide some in the comments.

Interviewing Anthony Graves
Via Life at the Harris County Criminal Justice Center, check out this extended interview with exoneree Anthony Graves and his attorney Nicole Caearez on a local show, Reasonable Doubt, by the Harris County Criminal Lawyers Association.

Terrific blog coverage of Houston DA's race
Pat-Lykos supporter David Jennings at Big Jolly Politics parses an open records request in an an attempt to separate fact from campaign-driven fiction regarding the Harris County District Attorney's DIVERT program. In another post he commented on the "freaking mess" that is the grand jury inquiry into retaliation via county contracting on DWI breath testing, questioning the political motivations of the "runaway grand jury" and providing primary documents. Yet another post earlier this month offered up a respectful, loyal-opposition type interview with Lykos' opponent in the GOP primary, Mike Anderson. Dave's takeaway: " I wish he hadn’t filed. And he told me last night that he wished he hadn’t been convinced that he had to file." First rate blog work, Dave. MORE: Soon after I posted this, Dave put up another item in the series in which he interviewed Lykos face-to-face, along with one of her lieutenants, Rodger Bridgewater. This primary battle is getting far more discussion and substantive coverage in the blogosphere than in the MSM.

Reentry volunteers work from personal motives
Nice story in the Fort Worth Star-Telegram about a coupla volunteers at Tarrant County reentry programs, one an ex-prisoner in a faith-based program and another whose daughter was murdered in a domestic dispute who now counsels ex-offenders on domestic violence.

Private prison company has 10,000+ beds in extra capacity
In a recent conference call with investors, reports Texas Prison Bidness, Corrections Corporation of America reported increased short-term revenue but also revealed they have an excess bed capacity of 10,500, confirming Grits' intuition that the "incarceration bubble" may be bursting and that private prisons in the near term will have increasing trouble filling beds. The company's stock (CXW) dropped just before Christmas when the state of Arizona announced it would not go ahead with privatization plans.

'Drug violence kept Texas families apart on Christmas'
Reports KWTX.com. Also, Reuters has an excellent if depressing report on the organized crime wars in Ciudad Juarez, the Mexican city across the river from El Paso..

Police disbanded in Veracruz, MX
In Veracruz, Mexico, the entire municipal police force has been disbanded and the military has taken over security as Los Zetas and the Sinaloa cartel vie for supremacy. "The government in Veracruz state reportedly said on Wednesday that 800 police officers and 300 administrative employees had been laid off in an effort to root out corruption." This is sad: I love Veracruz, the city, the capital of Xalapa, and the rest of the state. For a while it was spared this kind of violence, but as the killing receded somewhat this year in Juarez, it escalated in Veracruz and other parts of the country. What a disaster!

Who watches for sleepers when watchers sleep?

2011-12-26T14:25:00.002-06:00

Brilliant! When the "Occupy" movement came to San Antonio and took up residence in a downtown park, the city sent a parks-police officer to the protest site to enforce the city's ban on sleeping there. The protesters snapped photos of the poor fellow (who of course didn't ask for the assignment of harassing "Occupy" protesters) while sleeping on the job. KENS-TV reported that "the officer was supposed to be keeping an eye on the Occupy camp to make sure that the protesters didn't fall asleep, and to write them tickets if they did." In other words, he'd have probably done more harm had he been awake. Via Injustice Everywhere. Related: See "Police v. OWS," from The Crime Report. See also: Matthew 7:3. Your tax dollars at work, San Antonio.

Triumph or Tragedy? Drawing meaning from the Michael Morton exoneration

2011-12-26T10:20:00.011-06:00

"If you want a happy ending, that depends, of course, on where you stop your story."

- Orson Welles

Regular readers will recall that Grits recently named the Michael Morton exoneration out of Williamson County the biggest Texas criminal justice story of 2011. Morton spent a quarter-century in prison for allegedly murdering his wife before he was exonerated by DNA and a team of won't-quit attorneys who fought Williamson County DA John Bradley over testing the evidence for six long years (prevailing only after the Legislature changed the law to remove Bradley's grounds for objection). It turned out prosecutors 25 years ago had failed to release exculpatory evidence to the defense, and the man who apparently did so, then-elected DA Ken Anderson, is today a sitting Williamson County District Judge. You really can't make this stuff up!

As the year's biggest criminal justice story, several publications recently issued end-of-the-year retrospectives on the event:

Texas Tribune: "Murder cases put 'junk science' in the spotlight"
Austin Chronicle: "Williamson County Injustice"
Houston Chronicle: "Special holiday for lawyer John Raley, innocent client"

Now that Morton's defense team has released their prosecutorial misconduct report (pdf), as a pure news story the Morton exoneration is over. As these articles demonstrate, though, what remains is to understand what his story means and how or whether lessons may be drawn from it that could prevent more, similar false convictions in the future. Those questions are all wide open, as are what consequences any of the state actors might face and what if any reforms might be implemented in the wake of exposing such gaping, systemic flaws.

Interestingly each of the writers in the stories bulleted above seeks to draw different conclusions regarding how we should understand this horrifying episode.

For Grissom at the Tribune, the lesson is that "Despite scientific advancements like DNA testing, the use of unreliable scientific techniques in the criminal justice system persists." She quotes a lawyer from the Texas Defender service who observes, "“What passes for science in courtrooms is not always, in fact, science.” That might sound like a radical statement if the National Academy of Sciences hadn't recently found the same thing. Moreover, the Court of Criminal Appeals ruled this summer that legal and scientific truth were different things and expert testimony could be legally true but scientifically false.

Jordan Smith at the Austin Chronicle is more focused on whether "whether current D.A. John Bradley has also acted, if not improperly, at least imprudently, in his handling of the Morton case since he succeeded Anderson in 2001. Bradley fought mightily against testing of the bandana, telling at least one local reporter that to allow the DNA testing in what he apparently considered an open-and-shut case against Morton would be 'silly'; Morton was merely 'grasping at straws,' he has also said."

At the Houston Chronicle, Patti Hart focuses on the seemingly insurmountable barriers overcome by Morton's obsessively persistent defense team, without whom Morton would have spent the rest of his life in prison, as well as the larger question of how to make prosecutors fulfill their duty to turn over potentially exculpatory evidence in criminal trials, making Judge Anderson her poster child: "Under well-established law, prosecutors must share exculpatory evidence. By withholding crucial facts, Anderson could face contempt charges or even disbarment," wrote Hart. She decries prosecutors use of tactical maneuverings to avoid so-called "Brady" disclosures (after the US Supreme Court's decision in Brady v. Maryland mandating the state disclose such evidence).

Which is the right conclusion to draw? All of the above, and more. Morton's attorneys have requested a "court of inquiry" to investigate prosecutorial misconduct charges (after Grits reads their 144-page report (pdf), along with Judge Doug Arnold's deposition (pdf), I'm sure there will be more to say about that subject). In the meantime, what are the lessons for prosecutors, judges, and even defense counsel, all of whom failed miserably at their jobs 25 years ago?

Texans will be hotly debating those questions for many years, well past the legislative session in 2013, just as the Tulia exonerations still raise hackles in certain quarters. Indeed, like the Tulia case, I suspect Mr. Morton's story may become the subject of books, documentaries or even a Hollywood fillm (the Halle Berry Tulia flick was delayed because of her pregnancy but reportedly is now tentatively scheduled for a 2014 release; the story of a similar Texas drug sting inspired a Disney-backed Hollywood film, "American Violet."). If we don't see similar cultural artifacts spin off of Mr. Morton's story, I'd be surprised; his has been a truly epic saga - an almost unparalleled story of tragedy and triumph.

We shouldn't let Morton's triumph, though, deflect attention from the tragedy, however (rightly) exultant Morton and his legal team are at his release. This was a tragedy so grim it would baffle Kafka and make Shakespeare wince: Morton's wife, Christine, was brutally murdered. He professed his innocence but was falsely accused and wrongfully convicted, the victim of apparently overt prosecutorial misconduct and misrepresentations of forensic science. Then prosecutors fought for years to keep from revealing exculpatory evidence and to prevent DNA testing that ultimately led to discovery of the alleged real killer - a man whose DNA had also been discovered at a similar murder scene near the Mortons home four years after Christine's death. The alleged real killer had been living in neighboring Bastrop County for most of the intervening quarter century.

It all sounds like a Hollywood movie plot, complete with a "happy ending." But for Morton and his family, the victory, however satisfying, must be bittersweet. Nobody can give them that quarter century back. No amount of money can repay stolen time. And who knows what other crimes were committed by the real killer while Morton was locked up? We already know of one other alleged murder by the same suspect; were there more?

Indeed, isn't it a matter of interpretation whether this episode constitutes a triumph or tragedy? As Orson Welles said in the epigraph to this post, it all depends on where you end the story, or in this case, when opinion leaders and the media decide it has ended. If his conviction in 1986 had never been overturned, Morton's would remain a secret tragedy, like hundreds or probably thousands of others in TDCJ. But with Morton's triumphant release does that mean "the system worked"? Is that the end of the story? If Anderson were punished professionally, even disbarred, as Patti Hart suggests, would that retributivist homage constitute a happy ending? Would it make things "right"? How about John Bradley losing re-election, would that democratic rebuke be enough? Or perhaps if the Legislature passed a law named after Morton mandating an open-file policy for prosecutors or punishing willful Brady violations with jail time, would such preventives provide a satisfactory conclusion?

For the story writers, perhaps. But it won't bring back Morton's late wife, nor will state compensation nor half-hearted press conference apologies ever make up for what was stolen from him. For Michael Morton, who yesterday spent his first Christmas with his family since the last visit of Halley's comet, the story will continue as he struggles to rebuild a shattered life and to keep this horrible nightmare from defining and defeating him. Indeed, for Mr. Morton, not only is this not the end, the most important part of the story is just beginning. Grits wishes him all the luck in the world in the new year as he seeks to begin writing his own happy ending. I hope he finds it.

Perry persists in paltry, pusillanimous pardon policy

2011-12-23T08:37:00.002-06:00

Well I was wrong: Grits predicted Governor Perry would issue 10 or more pardons this week after issuing none for the rest of the year. I was right to expect some, but guessed high: He issued eight - all for trivial, long ago offenses. Three of the eight don't even live in Texas anymore. While in general Grits calls "Humbug!" on Christmastime pardons, this was a missed opportunity. Grits had suggested that if the Governor issued 23 pardons or more, he would ensure positive national coverage by pardoning more people in one day than Barack Obama has granted clemency in his entire tenure. (Perry surpassed that mark in two prior years.) But instead, with Mitt Romney on the campaign trail saying he won't grant pardons at all, Governor Perry decided to play it safe. Disappointing.

MORE: From the Texas Tribune.