One cheer for CJAC ... okay, maybe half a cheer ... alright, a modest grunt of approval

After my previous two items about the recommendations of Texas Governor Rick Perry's Criminal Justice Advisory Council (CJAC), Charles Kuffner emailed to ask me if there was anything I did like about the group's proposals. I'm sure my kibitzing seems odd to folks like Charles who read the glowing media accounts then wondered why I didn't seem so positive on the subject.

Certainly CJAC proposed a handful of positive reforms, but they were small things that will only make a marginal difference, hardly "Reforming Texas justice" as Doc Berman titled his blog post about the report. The big stuff they said should be "studied" more before taking action, even though the Governor's charge was for CJAC to study them and make recommendations. Study, study, study. For those not schooled in the wimp words of public relations and bureaucratese, to "study" such subjects when the answers are obvious means "do nothing, but make the public think you're addressing the problem," which of course is the reason CJAC was created in the first place.

Still, it would be wrong to portray their report as containing nothing positive.

Certainly providing funds to support Texas' four law-school-based innocence projects is a good thing, for example, and I don't want to downplay it. I just wish more emphasis were placed on stopping innocent people from being convicted in the first place. Ideally, we'd reform the front end, too, and in a few years the innocence projects would work themselves out of a job.

I've already discussed how suggestions regarding Texas crime labs would throw money at the problem without addressing the reasons innocent people are convicted. I hope I didn't imply the money isn't needed -- it is. There's a large backlog of cases plugging up the system that will be expensive to resolve. But that's not the same as enacting reforms that would ensure innocent people aren't convicted in the first place. That's what I hoped we'd see from this group that simply wasn't forthcoming.

Similarly, two recommendations suggest giving judges more "discretion" to order DNA tests and to have the state pay for them. That's a good thing, because "A judge right now does not have the discretion to just order a DNA test in the interest of justice, and a judge ought to be able to do that," says Keith Hampton of the Texas Criminal Defense Lawyers Association.

I'm afraid, though, that still won't fix the problem without additional reforms. "In our experience, it's harder to get DNA testing in Texas than in almost any other state in the country with a DNA testing law," said a lawyer with the NYC-based Innocence Project in December. "While it's a well-written law in Texas, many prosecutors fight hard and litigate aggressively, and as a result, little testing happens." Reformers suggested making it more difficult for prosecutors to ask judges to deny DNA tests, which many do as an automatic first step in every case. CJAC did NOT adopt that recommendation, so it's a crap shoot whether giving judges' more discretion will result in more testing. I hope so.

Another recommendation would "Encourage local law enforcement agencies to use in-car audio-video record of all law enforcement contact with citizens at traffic stops and, if possible, fund local jurisdictions which may have insufficient resources for audio-video equipment." That's a positive thought to put out in the world, and I strongly support cameras in police cars both for protection of citizens and officers. But who will pay? Most agencies received funding for such cameras in 2002 as a result of Texas' racial profiling statute (if they have cameras, they don't have to gather the full range of data), but no state funding is available for replacement cameras, upgrades, for for agencies who didnt' get cameras in 2002. Other CJAC recommendations identified funding sources like grants from the Governor's Criminal Justice Division, and that source could fund these cameras, too, but instead the state will simply "encourage" camera use unless, apparently, money for them just falls from the sky.

The recommendation that peace officers receive continuing education on search and seizure laws is an improvement over the status quo - if you can imagine, they currently don't receive such training. But CJAC did not recommend the real reform on the table at the Legislature: requiring officers to obtain written or recorded consent to search at traffic stops when they don't have probable cause. The Governor vetoed that bill but told legislators to study the topic and bring it back in 2007. In that context the proposal for training feels like half a loaf, or really just the crumbs.

Which brings us to the proposals for further "study." These are the most substantive reforms discussed by CJAC, and in the end they didn't advocate implementing any of them but pretended they need to be "studied" more. That's utterly disingenuous, IMO -- in each case the topics have been studied to death and everyone pretty much knows what the best practices should be. In that context, to advocate further study amounts to opposition, not advocacy for the proposals. Proposals receiving this backhanded compliment were the most important ones discussed by CJAC:

1. Providing state funding for a public defenders office .

2. Increasing the compensation of individuals who are wrongfully convicted.

3. Adopting established best practices to reduce eyewitness misidentification.

4. Videotaping the interrogation and confession of suspects in major crimes.

Now THOSE would be important changes to recommend, but CJAC didn't recommend them. (Indeed, CJAC is largely made up of representatives of special interests who opposed those reforms in the past.) By saying we should study them, though, CJAC gets to pretend it's interested in reforms to protect innocent defendants without actually advocating them.

I hope I'm wrong about that. I've been at this a while and maybe I'm too cynical. But it sure seems like I've seen this song and dance routine before.