Saturday, May 19, 2018

You're getting sleepy, so you won't notice Texas is still using junk science like 'forensic hypnosis' in death penalty cases

Before reading the rest of this post, relax, breathe, and follow the swinging pocket watch.

Feeling suggestible? Great, now we can begin!

Junkiest of junk science
While Grits was out of pocket this last week, Lauren McGaughy of the Dallas News had a feature on forensic hypnosis in light of the looming execution of "Charles Don Flores, 48, [who] was convicted in the 1998 slaying of Elizabeth “Betty” Black after a neighbor was hypnotized to recall the features of two men she’d seen going into the victim’s Farmers Branch home the morning of the murder."

A Farmer's Branch police officer who'd never hypnotized anyone before failed to follow a number of mandatory requirements under Texas Court of Criminal Appeals jurisprudence in Zani v. Texas, and even those today seem absurdly outdated.

For more background, Mandy Marzullo and I discussed the case in the November episode of Just Liberty's Reasonably Suspicious podcast, and the Dallas Observer published a feature heavy on adumbration of the relevant court cases earlier this year. Those cases so far have all approved of forensic hypnosis. And Texas has the most robust regulatory structure in the country for a practice that to most informed people ranks on the level of psychics or palm readers when it comes  to sources of good evidence.

As Grits recounted in December, the Zani case allowed forensic hypnosis to go forward based on an understanding of human memory that science now considers rudimentary and false. From the majority opinion:
Proponents of the use of hypnosis to restore a crime victim's memory to facilitate his trial testimony, most notable of whom is Dr. Martin Reiser, a psychologist and forensic hypnotist with the Los Angeles Police Department, advocate a "videotape recorder" theory of human memory. By this theory the human mind is thought to receive and store in the subconscious every bit of data taken in by the senses. Hypnosis is regarded as a legitimate vehicle for tapping the subconscious to retrieve data recorded therein which has proven to be inaccessible to the subject's conscious memory.
As it turns out, the "videotape recorder" theory of human memory is hoakum. Junk. A.k.a., bullshit.

That's why, reported McGaughy, "According to a 2012 study, half of U.S. states now have "per se inadmissibility rules" barring hypnotically induced evidence in criminal cases."

Scientists now believe memories are recreated anew each time the brain retrieves them, Grits learned during debates over eyewitness identification practices. Moreover, memories are malleable, and Elizabeth Loftus has shown that they can be altered or even created through hypnosis.

Texas' new junk-science writ provides a new vehicle with which to test this antiquated junk science, which hasn't been considered by the Court of Criminal Appeals since 2004, the year before the creation of Texas' Forensic Science Commission.

Today, the practice has fallen out of favor at most agencies. "There are about two dozen forensic hypnotists in Texas at this time, the majority of whom serve in the Harris County Sheriff’s Office and Texas Rangers." That's down from 152 statewide in 1999, McGaughy reported.

There's been a lot of water under the bridge since 2004 regarding Texas' statutory and jurisprudential posture toward junk science. So Grits believes there's a decent chance the CCA could reverse their past position on this, perhaps (tea-leaf reading from afar) by as much as a 6-3 margin.

OTOH, the state just executed Juan Castillo without ever hearing arguments regarding whether recanted jailhouse informant testimony was significant enough to warrant a new trial. So it's always possible they'll do the same thing here, finding excuses to look past the issue in order to allow the machinery of death to lurch forward unimpeded.

A conundrum: Why capital cases are the best/worst vehicles for reforming bad practices
This brings up an odd conundrum with capital cases: The Texas public overwhelmingly supports the death penalty and has little sympathy for capital defendants. At the same time, death-penalty defendants frequently are the only indigent clients who get anything like a zealous defense throughout the appellate process, not to mention two experienced attorneys at trial.

So death-penalty cases often raise issues with broader implications for the justice system - e.g., the implications of allowing forensic hypnosis as evidence - just because enough lawyers focus on the case as time goes by to more thoroughly vet issues and raise problems. But they often feature unpopular defendants about whom the media may have been beating the drums for many years by the time problems in their case are examined. When I was with the state Innocence Project, even actually innocent defendants were typically unpopular in their home jurisdiction until the day of their exoneration, and sometimes even after that (ask Anthony Graves).

That's why Grits is sanguine, but not overly optimistic, that Texas' 19th-century conceptions of forensic hypnosis might be overthrown in the face of 21st century science. I believe if the issue were to come squarely before the CCA on the merits, forensic hypnosis would likely be dumped. But there are many ways the issue could avoid serious consideration and Mr. Flores still be executed, and unfortunately, that's not an unlikely outcome, either, if one were setting odds on where all this might lead.

Saturday, May 12, 2018

Did Texas DPS 'border surge' cause DWI enforcement reduction?

A Grits commenter suggested a fascinating and viable theory regarding the source of radical reductions in DWI arrests across Texas in recent years:
a local judge that I know who oversees a DWI Court he has opined that DWI placements are way down in his jurisdiction and that he felt there was a correlation between the redeployment of local DPS troopers to the border. He said DPS made up the majority of their local DWI arrest. It would be interesting to see if there was any actual link between the border surge and decreases in local DWI arrest.
What do we think about this?

Grits was immediately reminded of a bout of reporting in 2015 detailing how DPS coverage in the rest of the state went down when the border surge began. As R.G. Ratcliffe wrote for Texas Monthly:
The [El Paso] Times' Marty Schladen reports that DPS warning tickets have increased since 2012 by 14.5 percent in border counties, which also saw a 13.5 percent decline in fatal accidents. During the same period, warning tickets elsewhere in Texas declined by 29.3 percent, while the number of fatal accidents increased by 6 percent. 
If the number of warning tickets in non-border-surge areas of the state declined 29% from 2012 to 2015, the idea that the same trend caused a statewide decline in DWI arrests (34% reduction from 2010-2016) doesn't seem far-fetched.

Grits doesn't immediately have enough information to confirm this hypothesis, but it fits more of the data points, not to mention the timeline, than most other possible explanations.

Meditating on misdemeanors, the human toll of prison understaffing, and other stories

Here are a few odds and ends that will simultaneously clear my browser tabs and point readers to a few interesting items about which I don't have time to blog now.

Latest Texas DNA exoneree denied testing for years
Congratulations to Texas' latest DNA exoneree, John Nolley, and thank you to the Tarrant DA Conviction Integrity Unit and our friends at the national Innocence Project for getting him out and clearing his name. For that matter, good for the Court of Criminal Appeals for finally overturning his conviction, though they did not join in proclaiming him actually innocent. If the Tarrant DA vouches for his innocence, however, he would be able to receive compensation, anyway, under the exception carved out for Anthony Graves. Notably, reported a local TV station, "After years of defense attorney attempts, a judge ordered that the DNA of Nolley be retested" once the DA's Conviction Integrity Unit was on board. So while that speaks well of the Tarrant Conviction Integrity Unit, CIU's are a recent phenomenon and only exist in a few counties. The case remains a black eye on a system that could not secure justice for Mr. Nolley through traditional mechanisms and speaks to the system's failure to adequately vet convictions without extraordinary interventions.

The human toll from prison understaffing: Telford Unit case study
At the Texas Tribune, Jolie McCullough performed a deep dive into the effects of extreme understaffing at the Telford Unit in New Boston, a problem which dramatically worsened after the murder of a guard in 2015. Understaffing creates problems both for staff and inmates, she reported, making things more dreadful and dangerous for both. The report comes on the heels of a story from USA Today about the deadly effects of prison understaffing in South Carolina - in that case from slashed budgets as opposed to the vicissitudes of labor economics.

Arrested for pot, raped in jail
This young mother's story sounds like a living nightmare.

Ramsey-unit quota scheme on inmate discipline revealed
TDCJ is reviewing inmate disciplinary cases at the Ramsey Unit after it was revealed a captain there had implemented a quota system requiring minimum numbers of disciplinary reports. This is another Keri Blakinger scoop from the Houston Chronicle. Jennifer Erschabek from the Texas Inmate Family Association was quoted in the story saying, "One of the biggest complaints we have from family members is that an officer has written a bogus case and there's no way for people to fight that because it becomes a he said-he said type of situation and an inmate has no recourse."

'My life as an execution witness'
The Houston Chronicle has an interview with former TDCJ spokesperson Michelle Lyons about her new book chronicling her experience witnessing more than 200 executions over the course of her career.

Meditating on misdemeanors
Edward Spillane, a municipal court judge in College Station, has an interesting article in the University of Chicago magazine titled, "The Meditative Judge," in which he discusses issues of "mindfulness" and what he's learned applying meditative focus methods on his misdemeanor court docket. He believes that, "A mindful focus on individual defendants in the courtroom can allow judges to contribute to large-scale reform. Applying punishments mechanically actually creates criminal justice failures. A focus on the present allows a judge to gain more insight into each defendant and serve the best interests of everyone in his or her court."

AG pitch on revenge porn a PR move
Mark Bennett has written how some folks simply can't believe the US Supreme Court meant what it's said in rulings about protected speech, and apparently Attorney General Ken Paxton is one of them. His office filed an amicus brief with the 12th Court of Appeals seeking to overturn their ruling that Texas' revenge-porn law is unconstitutional. (Bennett appears unfazed.) I'm not a lawyer, but Grits predicts this effort will be futile: Way too little, too late, that ship has long-ago sailed. This is more about positioning oneself in a culture-war debate, with little relation to the legal questions at stake. IRL, the AG needed to win earlier cases declaring "improper photography" or "online solicitation of a minor" unconstitutional if they wanted Texas courts to reject the First Amendment doctrines at stake, which themselves rely on long-established SCOTUS 1A interpretations that Texas probably couldn't buck, anyway. (Bennett has also maintained that the statute against online impersonation fails on the same grounds.) But now that the Court of Criminal Appeals has, multiple times, unanimously adopted precisely the reasoning upon which the 12th Court is relying, it's hard to imagine how a rehearing would make any difference. Which means that, since the AG's motion got press, he has already achieved his goals.

Reyna doubling down on dubious Twin Peaks cases
The original Twin Peaks cases are being dismissed but McLennan County DA Abel Reyna is doubling down and recharging a couple dozen defendants on charges of murder and rioting. At this point, it seems unlikely Reyna will be in office when these new cases finally get their day in court, so it's hard to say if this is pure grandstanding. But past reports indicated that everyone actually involved in the shootout that day is dead, either from a biker enemy's bullet or at the hands of a police sniper. If that's true, the murder charges seem spurious and the rioting charges dubious. But IMO we probably can't trust official pronouncements on these questions until Reyna is out of office.

Sacerdotal schooling for inmate preachers
The seminary at TDCJ's Darrington Unit for prisoners with very-long sentences who go on to serve as ministers throughout the Texas prison system just had its fourth graduation, and the Houston Chronicle's Keri Blakinger had a report.

Jade Helm taught Russian trolls how to divide Americans
"Blue Lives Matter" posts were the most successful progeny of Russian troll farms during the 2016 presidential election, The Daily Beast reported recently. In related news, the Jade Helm controversy to which Gov. Greg Abbott responded by assigning the Texas State Guard to "monitor" federal troops also turned out to be a fabrication of Russian internet trolls. And our governor fell for it.

Medicine is the best medicine
The best approach to combating addiction is treatment, not incarceration. So it's not surprising that Virginia has discovered that expanding Medicaid is the best way to combat the opiod epidemic and rising overdose deaths. The program pays for treatment which may otherwise only be accessed by indigent people if they're arrested and ordered into treatment as a punishment.

Wednesday, May 09, 2018

Texas' unnoticed reduction in alcohol-related crimes: DWI and 'drunkenness' arrests way down

An observant commenter suggested declines in DWI cases may have contributed to plummeting misdemeanor probation caseloads, and he raises a good point. Grits replied thusly in the comments:
Re: DWI arrest stats* (see historical statewide arrest data here): 
2010 Texas adult DWI arrests: 94,236
2016 Texas adult DWI arrests: 62,216 
Also, arrests for "drunkenness" (public intoxication?): 
2010: 130,564
2016: 64,120 
And as you know, traffic ticket numbers have significantly declined
For that matter, on "all other" offenses, excluding traffic: 
2010: 320,492
2016: 225,924 
So, ... I have to wonder if the DWI reductions are part of broader trends involving alcohol, as implied by reductions in drunkenness, part of a trend in traffic enforcement, as implied by the reduction in overall traffic tickets, part of a more generalized crime reduction, as implied by the reduction in the "all other" category, or, as you imply (and as I've suggested before), maybe it's a policy shift in part reacting to excessive surcharges, as some Texas prosecutors and judges have suggested. Or none of these things. Or all of them, and more. ¿Quien sabe? 
But you're 100% right, that's a big reduction, and one of which the press and the public are largely unaware.
Big picture: Traffic fatalities in Texas remained more or less level over this period, even as the population boomed and DWI arrests dropped more than a third. So there hasn't been any notable public safety reduction from the decline in traffic and DWI enforcement. Indeed, as I implied at the end of my reaction to the commenter, it appears hardly anyone has noticed or minded at all, except the probation directors and criminal-defense lawyers whose revenue plunged with the drop in cases.

* While 2017 data is out for Texas courts, we haven't seen data more recently than FY 2016 (which ended 21 months ago) on either arrests (DPS) or prison/parole/probation systems (TDCJ). Hard to understand why the OCA can get its annual statistical data from a decentralized court system out more promptly, but for DPS and TDCJ , annualized data is nearly a year old when they finally release it. State political leaders should care about such delays. It's impossible to manage what one cannot measure.

Monday, May 07, 2018

Zero tolerance makes zero sense, and other stories

Here are a few odds and ends that merit readers' attention:

Learning the ropes
Politico ran a nice feature on Nueces County DA Mark Gonzalez, focusing on his much-ballyhooed "biker gang" connections.

Proponents of revenge-porn restrictions must face 1A contradictions
Houston attorney Mark Bennett picks apart a forthcoming law review article trying to salvage a legal justification for Texas' anti-revenge porn law. Prosecutors and legislators hoping to rewrite the law after the Texas Court of Criminal Appeals inevitably strikes it down on First Amendment grounds should/must suck up and solicit Bennett's advice. Ignoring him in 2015 is what got them in this mess. And they should be prepared: for reasons demonstrated in the above-linked blog post, his advice may well be that they simply can't get where they hope to go.

Zero tolerance makes zero sense
I thought zero-tolerance policing was fading out of style, but Austin PD announced they'd focus a zero-tolerance approach toward petty offenses in an East Austin neighborhood in response to complaints. They referred to it as a "special tactic," but there's nothing special about it. Really, it's sort of old hat.

Both R and D Bexar DA candidates back needle exchange
The needle exchange pilot in San Antonio, discussed here, not only has the support of the outgoing District Attorney, but also "the two candidates seeking to replace him in November," reported the Express-News. Said the Republican DA candidate, Tylden Schaeffer, “Distributing clean needles to addicts saves lives, saves money, and prevents the spread of deadly diseases. Done properly, by those with the right intentions, such a program should not cause more people to use and abuse drugs. I would allow a bona fide program to operate.” Schaeffer's position coincides with the Republican-controlled House of Representatives, which in 2015 approved needle-exchange operations statewide if they didn't use government money. (The bill never received a hearing in the Texas Senate.) Top state leadership has been consistently cool to harm-reduction measures like needle exchange, but an increasing number of lower-level GOP officials have now publicly supported them.

Why conservative should lead
The former head of the Texas Association of Business makes the case why conservatives should lead on justice reform.

Feds take cash from nurse destined for medical clinic, hold it hostage for liability waiver
A sympathetic asset-forfeiture victim from Katy challenges Customs and Border Protection policy of demanding victims hold the agency harmless before returning their money.

Heat-litigation settlement adds pressure on Texas to decarcerate

In response to federal heat litigation, reported Gaby Banks at the Houston Chronicle, "Bryan Collier, executive director of the Texas prison system, is planning to relocate at-risk prisoners at 75 uncooled units to 29 prisons already equipped with air conditioning, according to two lawmakers briefed on the plan." A settlement will be reached this week over cooling inmates at the Pack Unit, Banks reported, but:
Other inmates could also benefit. Even before negotiating a deal, Texas prison officials began looking to move tens of thousands of vulnerable inmates into cooler quarters, perhaps to avert a swarm of additional lawsuits from other prisons.
“I’m not sure it would have happened without a federal lawsuit,” said state Sen. John Whitmire, D-Houston, chair of the Texas Senate's corrections committee. “It’s an attitude among the public and the Legislature, which speaks for the public, that we don’t want to spend money on people who are murderers and rapists.”
The 2014 suit filed by the Pack inmates challenged the deadly hot conditions inside the rural prison, saying they violated constitutional protections against cruel and unusual punishment. U.S. District Judge Keith P. Ellison has already concluded the state showed “deliberate indifference” to inmate conditions.
Sen. Whitmire has been making remarks like that for years on this topic, which probably didn't hurt the plaintiff's case that the indifference toward heat-related deaths was "deliberate."

But now, the federal courts have mooted legislative and for that matter public opinions. The state just has to pay for A/C or other cooling measures for various, vulnerable prisoner populations including the aged and infirm.

All of this was predictable. After the 5th Circuit said TDCJ could be sued, I'd opined that, "Grits expects TDCJ to ultimately lose the pending heat litigation and for the Legislature to eventually find itself forced to implement significant mitigation measures to reduce heat exposure of inmates and guards. It won't be popular but, if the 5th Circuit rules like they did in Louisiana, they won't have a choice." Now, that's exactly what happened.

The Lege is already spending $3.4 billion per year to house Texas prisoners. And despite beginning the 86th session facing billions of dollars of red ink, they'll now have to spend more per prisoner to pay to cool so many of them.

This puts even greater pressure on the Legislature to reduce prisoner populations and close more units. With crime declining, and public support for decarceration reforms on the rise, the cost of continuing to incarcerate Texans in the same numbers we did when crime was high makes little sense on its face. That goes double if the state must now pay to air condition a significant proportion of its 104 prison units. And it must.

Plummeting probation numbers leave fewer Texans under corrections control than nationally

Grits recently calculated the ten-year change in rates for the proportion of adults under control of the correctional system in Texas from 2008 to 2018, defined as everyone in prison, in jail, on probation and on parole, comparing that total to the total adult population. Texas' rate of people under government-control was one-in-22 adults in '08, compared to one-in-41 in 2018.

Let's revisit the question after the Washington Post publishing a similar analysis using national data for the period 2006-2016. According to them "In 2016, 1 in 38 adults were under one of these forms of “correctional supervision”; 10 years earlier, the figure was 1 out of every 31."

By these lights, Texans overall are supervised in 2018 at slightly lower rates than the 2016 national average. That surprised me.

How could that be? Texas' prison population remains the largest in the country. And parole numbers grew slightly over this period (Texas releases nearly 70,000 inmates per year).

That means the big reductions have come on the probation rolls, and to a much lesser extent, at county jails. By the numbers:

In 2008, the total probation population in Texas, felony and misdemeanor, stood at 429,689, according to TDCJ's annual statistical report.  Earlier this year, a TDCJ legislative handout put the number at 232,278, representing an astonishing 46 percent reduction!

Jail numbers also declined, though far less dramatically. On March 1, 2008, the statewide jail population was 69,397. On March 1st of this year it was 64,537. So just a seven percent reduction, which was entirely offset by an increase in the number of parolees being supervised.

Notably, most of the change in probation numbers is relatively recent. After a step down in the total cohort of probationers following reform measures passed in 2007, their numbers remained relatively high: In 2016, according to TDCJ, the total number of felony and misdemeanor probationers was 374,980. So that's a 38 percent drop in the last two years!

Grits cannot explain the plummeting numbers from 2016 to 2018 - certainly I can't think of any change in state policy which would justify it - but the fact of it helps clarify many political dynamics surrounding decarceration reforms.

In recent years, the most vocal opponents of sentencing reform in Texas have been probation directors, who fear that shifting non-violent offenses from a felony to a misdemeanor will reduce their funding. That's because they receive more money for supervising felons than misdemeanants, and felony probation generally lasts longer.

But Grits had underestimated the extent to which probation departments were feeling the squeeze. They survive on probationer fees and a per-probationer stipend from the state. So reducing numbers means reducing revenue. If their probationer numbers really dropped 38 percent in two years, then so did their budgets. No wonder they're in a panic about their money!

This news doesn't justify probation directors' regressive stances, but it explains some of the self interest behind them. And perhaps it will help state leaders put probation directors' advocacy for tough drug penalties in context as more a plea for budget relief than for public safety.


Theft reductions explain much of probation decline

On Twitter, Doug Smith from the Texas Criminal Justice Coalition offered this explanation for the reduction:
It's a decline in misdemeanor placements. Felony placements are up slightly 2016-2018. Over past 10 years, felony placements ↓ 8% and misdemeanors ↓ 25%. Index crime rate ↓ 29% over same period, so felony placements should be lower, but possession cases up 30%+.
Digging a little deeper, much of the decline in misdemeanor probation appears to stem from reductions in theft cases, a trend made more pronounced when the Legislature in 2015 adjusted property-theft thresholds to account for inflation. According to the Office of Court Administration's Annual Statistical Report for FY 2017, "The number of new misdemeanor theft cases filed [in FY '17] fell 28 percent from the previous year and was the lowest number filed in at least 30 years."

An accompanying chart (p. 27 of the pdf) showed misdemeanor theft charges maxxed out in Texas in 2004 at >120,000, but came in at less than a third of that (38,377) last year. By contrast, "The number of new misdemeanor drug cases filed [ed. note: almost all marijuana possession cases] increased 1 percent from the previous year, reaching a new peak in filings in this category."

In the five years ending in 2017, misdemeanor theft filings overall declined by 41 percent. This trend was led by a 76 percent reduction in "theft by check" charges. The theft-by-check part of that trend is technologically driven, but the decline in theft charges exceeds the amount which can be explained by that reduction. Texas has a larger population that's simply accused of stealing at much lower rates than in years past.

Notably, this has been a period when many types of petty criminal cases in Texas have dropped like a stone. The number of traffic and parking tickets issued, for example, maxxed out in 2006 at 12.1 million, declining more than 50 percent to 5.5 million last year. Non-traffic citations declined from 2.1 million to 1.1 million over the same stretch (p. 31 of the pdf).

Nobody has been able to fully explain that traffic-ticket drop, which occurred across agencies and jurisdictions, seemingly without any coordinated effort.

But other types of cases have fallen, too. The number of new juvenile cases of all types maxxed out in 2008 at just more than 53,000 and has fallen to 29,153 last year (p. 33 of the pdf). Led by a reduction in truancy-related cases following legislative reforms, all non-traffic categories of Class C tickets given to juveniles declined radically over the last five years.

So, as Doug described, Texas has just gone through an era when crime declined quite a lot, and the number of case filings - except for drug cases, which accounted for 32 percent of felony charges in 2017 and 21 percent of misdemeanors (p. 26 of the pdf) - has mostly gone down with it.

Grits' conclusion from these data: The failed War on Drugs is propping up mass incarceration in Texas. That's why Texas probation directors oppose right-sizing penalties for low-level drug possession. That's the only growth-area in their business.

Thursday, May 03, 2018

Remembering how truly terrible Ann Richards was on criminal justice

On Twitter, Texas Observer editor Forrest Wilder came up with this blast from the past: An old Ann Richards tuff-on-crime commercial from 1994 in which she touts plans to expand prisons by 75,000 beds and brags of reducing parole rates by 2/3. Go watch it.

These policies weren't just a bad idea with 20/20 hindsight; you could tell they were a bad idea at the time. Less than two years after that commercial ran, Robert Draper had a feature in Texas Monthly in which the lede featured Ann Richards' prison chief, Andy Collins, declaring the prison expansion was "the stupidest thing the state of Texas has ever done." To be clear, that's a pretty high bar!

"I mean, look who was behind it all," Collins told him. "Prosecutors, cops, politicians—all of them with a self-serving agenda."

Draper blamed "The media and the politicians," declaring, "So eager were they to sate the public’s bloodlust for locking up criminals and throwing away the key that they helped create a climate of hysteria in which corruption could flourish."

It's almost impossible to overstate how deep, at the time, the bipartisan consensus was surrounding exactly the message Richards is touting. Not only was it the zeitgeist of the moment, there was also a political calculation. Dems naively saw prison construction as a rural jobs program in the WPA mode. In addition, Dem strategists viewed Sheriffs and District Attorneys as their bulwark against a complete GOP takeover in small-town Texas and so deferred to them completely on policy. (Of course, the GOP takeover happened anyway.)

It's not that there were no critics back in the mid-'90s, but they were disempowered and disorganized: A few Ron Paul libertarians on the right and a few black Democrats on the fringes of the party. Mainstream black Dems mostly supported Richards' initiative at the time, just as they supported Clinton's 1994 crime bill.

The debates in 2018 surrounding police accountability, prosecutors elections, or mass incarceration could not have and did not occur back then. By contrast, a candidate producing that ad today would be openly mocked. And rightly so.

Wednesday, May 02, 2018

Houston's budget busting police budget, crime lab glitches in Dallas, and other stories

Here are a few odds and ends to clear Grits' browser tabs of items which deserve readers' attention, even if I haven't gotten around to blogging about them:

Crime lab DNA glitches delaying Dallas cases
In Dallas, reported WFAA, a capital murder case was delayed "because of a recent issue with county’s new DNA testing kits, which proved to be defective. The county crime lab suspended DNA testing in cases set for trial. The lab plans to restart testing in September with new testing kits."

Most Twin Peaks biker cases soon to be dismissed
Special prosecutors in the Twin Peaks biker cases in McLennan County dismissed one high-profile case, reported the Waco Tribune Herald, with many more likely to come soon:
In a status conference Friday, Assistant District Attorney Amanda Dillon told Judge Ralph Strother that the DA’s office likely will dismiss all but 25 to 30 cases during a re-evaluation of the Twin Peaks cases. Many of those dismissals could come this week, she said.
What a mess! County officials should get ready for a wave of civil litigation and start socking away money for a fat settlement. Thanks, Abel Reyna! BTW, Tommy Witherspoon at the Tribune-Herald is an old-school courthouse reporter of the highest order and a Texas state treasure. Though state and national media mostly neglected the story (frankly, because nobody wants to go to Waco), his coverage has been consistent and consistently amazing. Whoever hands out journalism awards needs to give him a few.

Email: Prosecutor in Alfred Brown case knew of withheld evidence
In Harris County, prosecutor Dan Rizzo allegedly perjured himself about exculpatory evidence withheld from the defense in Alfred Brown's capital murder trial, Houston Chronicle columnist Lisa Falkenberg reported. He denies it, but an email was discovered proving he knew of phone records he said he'd never received (later found in a police officer's garage, leading to the re-opening of Brown's case in 2015). The local defense bar at one point suggested Rizzo to be prosecuted for attempted murder (!), and calls for stripping his bar license have already begun. Rizzo could be the first Texas prosecutor not long-since retired from the job (a la Anderson and Sebesta) to lose his license over prosecutorial misconduct.

Houston's budget busting police budget
Mayor Sylvester Turner wants voters to bust the city's revenue cap to pay for public safety. However, we're at a moment in history when crime is at historic lows and the demands on law enforcement are rapidly evolving. Just hiring more warm bodies to throw at an endless stream of 911 calls and false burglar alarms on patrol wouldn't be worth it. Rather, investments in the civilian side - crime labs, crime-scene techs, evidence management, etc. - make a lot more sense. When Houston's chief, Art Acevedo, was in Austin, he focused almost exclusively on bolstering patrol in his budget requests while our crime lab failed under his watch and all civilian functions basically withered on the vine. Houston shouldn't make the same mistake.

PEP a reentry model
In a Dallas Morning News op ed, a Prison Entrepreneurship Program alum touts its reentry benefits. The Lege would do well to identify what they're doing that's working (especially the reentry supports) and scale up!

What happens when you cut prison spending without reducing prisoner numbers?
A feature in USA Today explored the relationship between corrections budget cuts and prison riots.

District Attorneys behaving badly
Two stories from other states that may give our Texas reporters some good ideas: 1) The Marshall Project has a feature on how the DA in Manhattan prosecutes the poor, and 2) the Nashville Scene has a story about how their DA's Association killed drug-reform legislation in Tennessee - not because they opposed the policy but because they didn't get extra resources they wanted in exchange for going along with it. See also related recent coverage about prosecutor associations' regressive lobbying activities from Josie Duffy Rice at In Justice Today.

The Great US Crime Decline
Check out a CNN segment featuring Fareed Zakharia and Adam Gopnik on the Great US Crime Decline.

One in three murder charges in TX a capital case

Now that the new Annual Statistical Report for the Texas judiciary is out, let's take a quick look at data on capital murder cases in Texas from FY 2017. (See p. 111 of the linked pdf from the Office of Court Administration.)

Texas prosecutors filed capital-murder charges in 446 cases last year, and gained capital convictions 249 times, including 162 by plea bargain and 74 by jury trial.*

Almost all of these resulted in LWOP sentences. The OCA reported that prosecutors announced plans to seek the death penalty in only three cases in 2017.

Six defendants were acquitted of capital murder at trial last year. Charges were dismissed in another 84 cases. (That'd be an interesting subset to review - that's a pretty high number.)

There were 897 capital murder cases pending statewide at the end of the year.

By comparison, there were 854 "regular" murder charges filed in 2017, with prosecutors generating 536 convictions. In addition, 31 murder defendants were acquitted at trial, with another 187 having charges dismissed.

One thought from these data: If prosecutors filed capital murder 446 times in 2017 and murder 854 times, then capital charges are not being reserved for the "worst of the worst." Not unless one believes one in three killers deserves that moniker. This overcharging is fueling an unnecessary shortage of capital-qualified trial attorneys statewide. While some have seen that shortage as a reason to reduce qualifications for capital-qualified attorneys, to me the better solution is for prosecutors to rein in this overcharging penchant and only use capital charges in truly exceptional cases.

*Obviously, these aren't all the same cases. Few capital murder cases are resolved within 12 months, and many if not most convictions were from cases filed in previous years. I'm analyzing overall patterns here, not claiming the cases in the "indicted" column are the same as those "convicted" in the same year.

Import of recanted informant testimony never evaluated in capital case

In the latest Reasonably Suspicious podcast, my co-host, Texas Defender Service Executive Director Mandy Marzullo, described the case of Juan Castillo, who is scheduled for execution on May 16. His conviction was based in part on informant testimony which was later recanted, but the courts have never meaningfully evaluated how this allegedly false testimony affected Castillo's case. Since there has only been sparse coverage of these events, I pulled this segment out as a stand-alone. Give it a listen:

Find a transcript of our conversation below the jump. MORE: From the indefatigable Keri Blakinger. AND MORE (5/7): See a plea for clemency for Mr. Castillo published in the SA Express News.

Tuesday, May 01, 2018

Most felony drug convictions in Texas get incarceration as a sentence

The new Annual Statistical Report on the Texas Judiciary from the Office of Court Administration is out.

Grits took a quick look at the data for felony drug possession cases in Texas District Courts. On. p. 112 we see that District Judges in Texas generated just more than 25,000 new felony drug possession convictions in 2017. Of those, nearly all were sentenced to incarceration of some sort:
Sentences Related to Felony Drug-Possession Convictions in Texas, 2017 
Prison: 5,281
State Jail: 7,243*
Local Jail: 8,554
Probation/Community Supervision: 3,859
Shock probation: 15
Fine Only: 58
Other: 410
Only 15 percent of drug-possession convictions resulted in a probated sentence in 2017, according to these data. (Clarification: these sentencing data are only for convictions and do not include cases resulting in deferred adjudication. See the comments for a discussion.)

In an additional 8,557 drug cases, a defendant with a prior drug conviction was revoked to prison in 2017. So probation revocations accounted for about 40 percent of drug offenders entering TDCJ last year.

*State Jails are Texas' euphemism for prisons which hold low-level offenders who committed what are known in the Penal Code as "State Jail Felonies," the equivalent of a 4th degree felony. The maximum sentence is 2 years, most offenders stay just 6-9 months, and there is no supervision upon release. Offenders who've been in state jails notoriously have the highest recidivism rates of all Texas prisoners.

Poll: GOP primary voters support #cjreform

The Texas Smart on Crime Coalition released a new poll today, let's review the highlights.

The most impressive finding in their survey of GOP primary voters? A whopping 76 percent supported reducing small-time drug possession penalties to a misdemeanor, following the lead of Oklahoma voters in 2016.

Legislation to that effect has been filed each of the last two sessions, but probation directors killed the plan. With polling numbers like these filling out it sails, however, some version of the Phil King/Senfronia Thompson legislation will certainly be back. Such a bill is also the shortest distance to closing more prison units and reducing long-term costs at the Texas Department of Criminal Justice.

In a related finding, 72 percent of Republican primary voters agreed that, "Changing certain crimes from felonies to misdemeanors will make our communities safer by allowing law enforcement to spend less time arresting people due to drug addiction and more time fighting more serious and violent crime."

The people remain way ahead of the politicians on these topics.

Finally, apropos of Grits' last post, "71% of GOP primary voters favor changing the way technical probation violations (such as missing a meeting with a probation officer, not committing a new crime) are handled, so those who have a minor infraction are not incarcerated but instead held accountable through enhanced curfews, electronic monitoring, or increased check-ins."

See the memo from Baselice and Associates for more details from the poll. MORE: see coverage from USA Today's John Moritz..

Related: See coverage of a national, Vera Institute poll on related topics.

Checking in on TX probation revocations: A major incarceration driver

Revocations from probation remain a major source of new entrants into Texas prison system (>23,000 on FY 2017). Here's the best report we have in Texas describing probation revocations, covering FY 2017. A few highlights:

The number of probation officers statewide is down more than 400 since 2010 (3,530/3,115). However, this decline tracks the overall reduction in probationer numbers, caseloads remain below 2010 levels.

Only 20 percent of probationers revoked to prison in Texas were serving time for violent offenses, according to the report. The others were on probation for nonviolent property or drug crimes (63%), felony DWI (6.2%) or other miscellaneous offenses (10.8%).

Technical revocations - or revocations for violating probation rules as opposed to committing new crimes - were up slightly since 2010 and accounted for 50% of all revocations statewide. These are the percentage of revocations which were for "technical" violations among Texas' largest counties:
Harris: 57.6
Dallas: 57.4
Bexar: 41.9
Tarrant: 56.8
Travis: 34.8
El Paso: 46.3
Said the report: "The majority of technical revocations were among offenders who were placed on community supervision for a property or controlled substance offense (66.0%)."

Despite crime declining overall during this period, felony probation placements have increased each year since their 2014 nadir. Similarly, early discharges from probation - where a probationer is rewarded for good behavior via early release from probation - decreased each year since 2014. Caseloads also began to rise slightly after 2014.

Bexar, El Paso, and Collin Counties saw big one-year spikes in their numbers of probationers revoked to TDCJ from FYs 2016 to 2017: Increases were 20.1%, 29.7%, and 28.2%, respectively.

Overall, about a quarter of probationers with the shortest probation sentences (up to two years) were revoked last year: "Revocations accounted for 38.9% of those offenders terminating community supervision with a probation length of up to two years and 25.3% of all offenders placed on community supervision in FY2015 for up to two years."

Even after they've succeeded on probation for more than two years, most probationers still face active supervision: "Less than a quarter of offenders remaining under supervision two years after placement were supervised indirectly. Most offenders were directly supervised, meaning they had face-to-face contact with a community supervision officer at least once every 90 days."

Justice system controls fewer Texans than a decade ago, but more than in other large states

Here's some good news, but then a somewhat deflating context for it. Still, let's begin on a positive note: The justice system in Texas oversees a significantly lower proportion of its residents than just a decade ago.

I ran across an old Grits post citing a Pew analysis of 2008 data. Back then, one in 22 adults, or 4.56 percent of all Texas adults, were in prison, jail, on probation, or on parole - in other words, in some way under the control of the criminal-justice system.

Updating with 2018 data (see below), Grits calculates that the comparable numbers today are 2.43 percent of adults, with one in 41 adults under supervision of the justice system. So the supervision rate has fallen nearly by half! 

Texas is a more free place than it was a decade ago.

While this is good news and should be appreciated, this is no time to break out the party hats. There's a tendency among Texans to embrace every bit of good #cjreform news with revelry and saturnalia, frequently declaring whatever we've done should be considered a "national model." 

This ain't that.

Texas still has the largest prison system of any American state. Moreover, our incarceration rates remain extraordinarily high compared to other states, particularly the other, most populous ones. California's per-capita imprisonment rate is 58 percent of Texas', for example, and we'd need to reduce our incarceration rate another 20 percent just to reach the national average (far more to reach the median).

Compared to where Texas was a decade ago, things look pretty good. Compared to other large states, we have significantly more incarceration and a greater percentage of our population under supervision by the government. And, despite our relative "tuffness," we still have more crime, too.

So things are better, but still not great. Indeed, most of the gains seem attributable to larger, national (probably international) trends from which Texas has received less benefit than other jurisdictions. There remains a lot of room for improvement.

(Sourcing for Texas' 2018 supervision-rate estimate: Three of the four datapoints for the numerator in the 2.43 percent number are listed on page 3 of this recent legislative handout. The fourth, county jail populations, may be discovered here. For population, I used official state projections for 2018 totals, estimating the percentage of adults from 2017 data.)

Sunday, April 29, 2018

Stop the Train! An Epic Indigent Defense Fail in Travis County, execution scheduled without hearing on snitch recantation, new music from Just Liberty's decarceration campaign, and other stories

Here's the latest episode of the Reasonably Suspicious podcast for April 2018. You can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:

In this episode, we discussed:

Top Stories
Death and Texas
Fill in the Blank
  • Litigation in Galveston County made national press after a judge refused to pay for defense-attorney investigation in misdemeanor case. 
  • Two Tarrant County cases show how politicized elections-based criminal prosecutions can be. 
  • Former Congressman Sylvestre Reyes authored a clueless column on Texas and the opiod crisis.
The Last Hurrah
Find a transcript of this episode below the jump.

Friday, April 27, 2018

Eleven years later, San Antonio finally gets its needle-exchange pilot

Long-time readers and drug-reform afficianodos will recall that, in 2007, the Texas Legislature approved a pilot needle exchange program in San Antonio. But then-District Attorney Susan Reed vowed to prosecute government employees (or anyone else) associated with the program, then-Attorney General Greg Abbott agreed she could do so, even though the Legislature had authorized it, and so the program never got off the ground.

However, in the wake of losing his primary election, Bexar County DA Nico Lahood is reversing his predecessor's position and giving the go-ahead to a needle-exchange pilot in River City, the SA Express-News reported.

This is excellent news!

In 2015, the Texas House passedbipartisan bill that would have allowed private charities to legally operate needle exchange programs without being prosecuted, but the Senate never considered the legislation. Now, the long-ago pilot championed in 2007 by the late Ruth McLendon-Jones and Dr./Sen. Bob Deuell can demonstrate the practice for the rest of the state.

Being Texas, of course, the fact that needle exchanges have proven effective all over the nation and globe won't convince our pols to do it, but a demonstration project in San Antonio might.

Thursday, April 26, 2018

Travis managed-assigned-counsel program an unmitigated catastrophe

The Texas Tribune's Neena Satija authored an excellent story about the Travis County managed-assigned-counsel system, but IMO she cut them too much slack for truly crappy outcomes.

The new system was created due to "widespread allegations of favoritism and concerns that overloaded attorneys were providing poor representation." 

Judge Mike Lynch told her he "is confident that the new system in Travis County is far better than the old one."

However, the concentration of indigent defense cases among a handful of lawyers WORSENED after the move to a managed-assigned-counsel system, Satija reported. "According to data from the Texas Indigent Defense Commission, the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017 — compared to an average of 428 in 2014, the year before the new system began."

We also know that those clients are getting worse outcomes as a result. A new analysis from the Council for State Governments Justice Center found that 80 percent of state-jail-felony drug defendants are convicted when represented by appointed counsel, compared to 48 percent of those who hired attorneys.

Further, Satija reported that defendants under the new system, "also spent an average of nine days in jail last year, up slightly from eight days in 2014. That’s still much longer than similar defendants who could afford their own lawyer: They spent an average of just one day in jail last year."

So lawyer caseloads are higher, not lower. Indigent defendants are sitting in jail longer. And people represented by appointed counsel in drug cases are a whopping 67% more likely to be convicted than people with retained counsel.

That's an unmitigated catastrophe! A failure on every level.

Former Texas Indigent Defense Commission chief Jim Bethke championed the new system when it was created but has no explanation for its persistent and obvious failures: “I wish I had a good explanation for that, but I don’t,” Bethke told the Tribune. "I believe in what that program's doing. Do I think it can be done better? Absolutely." 

For my part, I do not think it can be done better under a managed-assigned-counsel regime. Local lawyers wanted to control the process and, when control was given to them, they adjusted the system for their own benefit, not in the public interest.

Bottom line, when this shop was created Grits opined that Travis County should have created a public-defender office instead, and this news confirms that premonition. Yes, it would cost more, but Travis County will also  have to pay more to improve the system under a managed-assigned-counsel program. And we can already see that doubling down on this failed program would amount to throwing good money after bad.

Wednesday, April 25, 2018

Scam soliciting money for fallen officers in wake of Dallas shootings

Grits just got a scam robocall from something called the National Police and Troopers Association, which apparently has an affiliation with the national AFL-CIO' International Union of Police Officers, trying to collect donations in the wake of the shootings of two Dallas police officers, one of whom has now died. But there's almost no way any of that money would never end up in the hands of dead officers' families. A blogger who checked the group out a few years back found that:
for the year ending March 31, 2012, the union and its outside fundraisers collected $8.2 million and kept $7.7 million for fundraising fees and expenses, leaving about $500,000 for other purposes. That’s a fundraising efficiency of 6%–less than one-tenth the 65% threshold that charity watchdogs consider the bare minimum for a legitimate operation. 
But it’s really stinks even more. According to the tax return, out of that last $500,000, the union handed out charitable grants–scholarships, and a death benefit for one officer in Indiana–totaling just $35,000. That rounds to just 1/2 of 1% of the money raised.
Perhaps I'm missing something, but I don't see the group on the the Texas Attorney General's list of registered organizations licensed to do this sort of law-enforcement themed fundraising. Correction: They're listed as an AFL-CIO affiliate, and spend 77% of their earnings on fundraising, according to the AG.

Grits has railed against these law enforcement themed charity scams for years, but this is a new low. Sleazebags.

For the record, if you want to give a donation which will actually go to the Dallas officers' families instead of a bunch of scam artists, this is the link to use, via the Dallas Morning News.

Tuesday, April 24, 2018

TXDoT waived $1.3 billion in defaulted toll late fees; shouldn't old DRP surcharges also be waived?

The Texas Department of Transportation has announced it will waive $1.3 billion dollars in late fees on toll fines,  The agency had sent 2.2 million accounts to collections agencies last year, alone, reported KXAN.

The change comes after the Legislature capped late fees at $48 per year, so the agency waived old ones going back to 2007.

Grits' first thought: The anti-toll people got a bigger win last session than I knew!

My second: That's in the ballpark of the size of the unpaid surcharges in the Driver Responsibility program. If the Lege can suck up and eliminate that much bad debt on the toll side, they should be able to do the same thing for the surcharge program, which deals out a comparable amount of economic misery, plus the added legal problems arising from a revoked driver's license.

A lot of legislators are now aware of problems with the surcharge program, so Grits still harbors hopes that all Texas needs to get rid of it is a session with a little black ink in the budget to cover the on-paper losses. Unfortunately, that won't be the 86th session in 2019.

But news that the Lege eliminated this old debt last year in another red-ink budget makes me a tad more sanguine. It shows they can do it when they want to.

Judges explain need for bail reform; Exonerated, Exonerating; and other stories

Here are a few odds and ends which merit readers attention:

Judges explain need for bail reform
See Harris County District Judges Mike Fields and Darrell Jordan, a Republican and a Democrat, respectively, discussing the need for bipartisan bail reform on Reasonable Doubt, a cable-access program from the Harris County Criminal Lawyers Association.

Exonerated, Exonerating
Congrats to Chistopher Scott, Steven Phillips, and the late Johnnie Lindsey for being featured on a PBS Independent Lens production. These Texas DNA exonerees are themselves investigating other potential wrongful convictions; those efforts are the subject of the film.

Equal Justice, or Justice Politicized?
So, a black, formerly incarcerated woman in Tarrant county got a five-year prison sentence for voting illegally, and a sitting jurist gets probation for engaging in fraud to get on the ballot! (See here and here.) Yes, the judge pleaded guilty. OTOH, he actually committed an offense with mens rea, as well as violated the public trust. So there's that.

Meaty sentence in South Texas corruption case
A juvenile detention officer in South Texas who was convicted of stealing $1.2 million worth of fajita meat over nine years was sentenced to a 50 year term. That's way too high given the nature of the crime; there's no real public safety justification for it.

Who are homeless?
Most homeless youth in Dallas County are girls, and nearly 60% are black, a study found. See KERA's report.

Incarcerated women
The Texas Criminal Justice Coalition issued a report based on a survey of incarcerated women in Texas. See a summary of their work from The Crime Report.

Do hospitals do deescalation better than cops?
The New York Times published a feature on what law enforcement could learn from hospital training on deescalating potentially violent encounters.

From the Shooting-Yourself-in-the-Foot Department
Eliminating food stamps eligibility for certain drug offenders resulted in increased recidivism, an academic analysis found.

Missouri modeling collections reforms, practices
After the Ferguson report from USDOJ criticizing the use of fine and fee revenue to bolster municipal revenue, the state passed reform measures and collections plummeted around the state of Missouri, spurring one local municipality to merge with another because the majority of its revenue evaporated. Among the new measures, "municipalities are now banned from piling on charges when a defendant does not pay a fine or show up in court. Some municipalities ... now treat unpaid tickets as any other unpaid bill and close the case after sending the ticket to collection."

On prosecutor associations and legislative power
Josie Duffy Rice at In Justice Today had a must-read piece on the legislative power of prosecutor associations and Radley Balko in the Washington Post followed up.

Levin: Rural counties need to get on justice-reform train

The Texas Public Policy Foundation's newsletter arrived in my Inbox this morning and their top story related to over-incarceration in rural counties, focusing on pretrial detention:
What to Know: Criminal justice reforms are decreasing jail populations and recidivism rates. 
“The American criminal justice system’s gradual realization that too many people are in jail needlessly just got a large, visible boost from the city of Philadelphia,” the Washington Post reports. “The city announced last week that it would close its notorious 91-year-old House of Correction jail because reforms begun two years ago have dropped the city’s jail population by 33 percent, without causing any increase in crime or chaos. 
Defense attorneys are working harder to get defendants released quickly with no bail or low bail, prosecutors typically don’t oppose that, and the city’s judges are releasing them. Philadelphia police are taking more defendants to treatment rather than jail. More petitions for early parole from longer sentences are being granted. More space is now available in the city’s six jails for rehabilitation programs, and less overtime pay is needed for jail guards.” 
The TPPF Take: Such reforms are making a real difference in many urban areas like Philadelphia, but some rural areas are lagging behind. 
“Rural jail populations are continuing to explode even while the last five years have seen sharp declines in urban areas and modest drops in suburban areas,” says TPPF’s Marc Levin, who heads the Right on Crime project. “The largest contributor to these jail populations are defendants awaiting trial. Fortunately, there is light at the end of the tunnel. As we highlight in a report to be released at the end of the month, many jurisdictions are stepping up to stem the tide of pretrial incarceration in rural areas.”
They then linked to a recent column in The Hill by TPPF's Marc Levin arguing that rural over-incarceration risks those areas being "left behind as the criminal justice reform train leaves the station."

Wrote Levin, "rural jail populations are continuing to explode even while the last five years have seen sharp declines in urban areas and modest drops in suburban areas. The largest contributor to these jail populations are defendants awaiting trial."

He could (and perhaps should) have also added, as the New York Times reported last fall, that rural counties are sending people for incarceration in state prisons at vastly greater rates than their urban counterparts. And of course, since people who can't make bail are sentenced to incarceration more often than those who are released pretrial, there's a strong correlation between excessive pretrial detention and over-incarceration at TDCJ.

These are choices being made by local officials in rural counties - it's not just them being left behind by the criminal-justice-reform train because they don't have the internet, or a ticket, or whatever. Not in 2018. 

The fact that the the tuff-on-crime ideology of rural over-incarcerators remains intractable has political consequences, explaining a great deal of the opposition to criminal-justice reform at the Texas Legislature.

The Texas Sheriff's Association, for example, is politically dominated by rural Sheriffs because they far outnumber their urban counterparts with the result that they're among the most regressive anti-reform advocates at the capitol. Same goes for the Texas District and County Attorneys Association. The big city DAs get more press, but as far as the Association's internal politics goes, they're outnumbered by their rural counterparts. That's why the group retains an essentially regressive agenda, even though the big-city DA offices who pay most of their bills are moving in a more moderate direction. (Related: From In Justice Today on state prosecutor associations: "Prosecutors aren't just enforcing the law, they're making it.")

Grits is glad to see TPPF focusing on rural over-incarceration; there's no other organization in Texas taking up the banner, and the conservative think tank is well-positioned to address the topic. 

At some point, reformers must also address rural law enforcement's regressive impact on both the state-prison population and its political culture. But journeys of a thousand miles begin with first steps.

Monday, April 23, 2018

Lessons for Texas legislators from an unconstitutional revenge-porn statute

As soon as it passed, Houston criminal defense attorney Mark Bennett opined that Texas' "revenge porn" law passed in 2015 was an unconstitutional restriction on free speech. Now, he's backed it up and the 12th Court of Appeals out of Tyler agreed. See coverage from:
Here's the opinion. I am not a lawyer but, given its basis, Grits will go on the record right now to declare there's zero chance the Texas Court of Criminal Appeals as currently constituted will fail to back Bennett and uphold the 12th Court's ruling - even if the case is not decided until after Michelle Slaughter replaces Elsa Alcala.

These are issues the CCA has visited repeatedly, usually unanimously, as Texas prosecutors foisted a series of unconstitutional statutes on the state related to regulating online speech. Whether it's "revenge porn" or "improper photography" or "online solicitation of a minor," Texas legislators and their tuff-on-crime abettors keep tripping over the same thinking errors regarding the state's power to regulate online speech. (See oral arguments in one of Bennett's cases involving the same constitutionality issues before the First Court of Appeals earlier this year.)

Bennett told legislators in 2015 the bill was unconstitutional before it passed, and Grits warned legislators at the time:
Mark's the attorney who successfully convinced the Texas Court of Criminal Appeals - hardly a bunch of libertines - to vote 9-0 to invalidate Texas' online solicitation of a minor statute. So it'd be wise for legislators to consider Bennett's counsel. If they don't, he may well be the guy knocking the law down on the back end.
Now, here we are three years later and that's exactly what happened.

Bennett has tapped into a vein of First Amendment law which will remain an obstacle to expanding government power to criminalize online speech in the ways legislators and our prosecutor friends might like. The things they can criminalize are already criminalized, and the fact of a new medium doesn't change the same First Amendment rights that let Larry Flynt publish Hustler. They don't get to make up new rules and these statutes all ignore the old ones. The next time Bennett tells legislators one of their bills is unconstitutional, regardless of what the DA's association tells them, maybe they ought to listen.

Saturday, April 21, 2018

'Firepower to the People!,' and More: Justice Issues Reading List

Using this post to record links to several notable academic papers I've seen recently, saving them for perusal later. Perhaps some of them will also interest Grits readers:

Newsflash: "Touch DNA" doesn't necessarily require touching

Grits has discussed problems with DNA mixture evidence - particularly regarding so-called "touch DNA" - at some length. But conversations in Texas about the math have ignored an even bigger problem raised in this Wired magazine article: Touch DNA from an individual can be transferred to places to which the suspect has never been. 

The featured case involved an innocent man whose DNA wound up under the fingernails of a murder victim. But the crime was committed while he was hospitalized and could not have committed the offense. It turned out, the same paramedics treated the suspect and responded to the murder scene, somehow transferring his DNA in the process.

This may be more common than anyone - even innocence advocates - have understood. It turns out, for example, about one in five people "walk around with traces of other people's DNA on our fingernails," a study found

Or consider: Scientists have determined that a man who shakes hands with another person then goes to the restroom may end up with their DNA on his penis. Or, according to this Canadian study, a father's DNA may frequently wind up on his daughter's underwear because it "migrates there in the wash." (One wonders how often that latter circumstance may have contributed to false convictions in child molestation cases?)

The emerging questions around touch DNA - both the math surrounding the analysis and the assumptions surrounding what the results mean - are a lot more complex than anyone could have imagined five or ten years ago. Unfortunately, the criminal-court judges charged with sorting out the mess are ill-equipped and unprepared to do so.

Indeed, if these questions are resolved a decade from now, Grits will be pleasantly but seriously surprised. The Trump Administration shut down forensic reform efforts soon after Jeff Sessions became Attorney General, and it's doubtful state-level activities like the review at the Texas Forensic Science Commission can forge national or (really) international standards, which is what's ultimately needed.