Maybe FLDS just drew a really bad judge: Walther spitefully delays sending YFZ kids home

Is San Angelo District Judge Barbara Walther the worst judge in Texas?

There are many jurists competing for that lowly dishonor, but I'm beginning to wonder if Walther's name shouldn't be placed on the short list for discussion. After her petulant display in the courtroom yesterday, it's increasingly clear the judge has taken rebukes by higher courts personally and begun to behave like a pouting 9-year old. Here's how the San Angelo paper described yesterday's events:

A proposed order, which seemingly was approved by CPS and attorneys representing the families, was introduced at the beginning of the hearing that states the department would begin returning the children at 8 a.m. Monday.

The proposal also stipulated the parents would undergo parent counseling and cooperate with the ongoing investigation, and that the parents wouldn't leave the state, at least until Aug. 31.

Technically the order was for just the mothers in the original appeal, but the implications were for all children, Walther said.

Walther took a break and countered with a proposal that put more restrictions on travel and other stipulations.

Her proposal gave the same time frame for releasing the children. However, it also said that if children were to travel more than 60 miles from their designated residence, the CPS must be given at least 48 hours' notice.

It also said case workers should have access to the ranch at "any and all times necessary to the investigators."

As well, it states case workers could interview and examine the children, which could include medical, psychological or psychiatric examinations.

Lawyers for sect members objected to the new proposal, saying it wasn't what they had originally agreed to, and that the court has no authority to impose those stipulations because there is no evidence those sect members broke any laws.

Walther countered that the Texas Supreme Court ruled that the court can put conditions on reunification to keep the children safe.

The Supreme Court ruling seemed to indicate Walther has some latitude to order parents to refrain from removing their children "beyond a geographical area identified by the court" while a thorough investigation continues.

Lawyers argued it does not give her the authority to allow some of the conditions she put in her version of the proposed agreement.

Walther eventually ruled that if each parent signed the agreed-upon ruling, then the court would sign it as well. ...

Laura Shockley, an attorney representing a mother and several children, said attorneys are usually allowed to sign such orders for their clients.

"The effect is that all children will be unlawfully detained for at least 48 hours and probably more," she said.

Andrea Sloan, an attorney who represents several disputed minors, said many mothers are scattered across the state near their children, and reaching them so they can sign the order will put a further strain on attorneys and the families.

Still, she said she is confident in the court system of Texas to get the children home.
Jessop was incensed that Walther didn't sign the order and wanted clarification.

"The judge left the court in total disarray," Jessop said. "There is no way to know when relief will be here to fix what happened on April 3. It's total confusion."

So bottom line, Walther demanded MORE restrictions on families than CPS had agreed to, injecting herself as a party in the dispute rather than an arbitrator. After hours of wrangling, the judge backed off her demand that FLDS parents agree to extra stipulations, but insisted that each FLDS mother sign the agreement instead of their attorneys, just to inconvenience them and make their lives more difficult. Then she stormed out without explanation, leaving attorneys to guess what she meant.

That said, by all accounts, before her abrupt exit, Walthers backed off on the extra requirements and consented to sign the agreement between CPS and parents if they all put their signatures on it. While FLDS could take this to the 3rd Court, their interests might be better served simply by hustling everybody back home and getting them to sign the damned document. If the Judge flip flops again, there's plenty of time to appeal to the 3rd Court. I'd guess that, at this point, the subsequent bench slap wouldn't be long in coming.

There's no justification I can see for Walther's ill-tempered departure nor the arbitrary delay it created - at least none except spite and mean-spiritedness. It's as though she doesn't realize that her actions are playing out on an international stage, that she's in danger of having her name transformed into a verb, like Duke lacrosse prosecutor Mike Nifong, where people whose children have been seized without cause have been "Walthered."

With yesterday's decidedly un-judicial display, Judge Walther disgraced her robes and embarrassed her constituents. Her actions displayed the same brand of disrespect for the law and parents' rights - in the 3rd Court's words, the same "abuse" of her "discretion" - that caused her earlier rulings to get shot down

Judge Walther deserves a lion's share of blame for everything that's gone wrong during this fiasco.

First arrest made involving fraudulent Ex-Im Bank loans; Did money lent to boost trade wind up in hands of drug cartels?

Somehow I'd missed that the first arrest has been made in Texas regarding fraudulent Ex-Im Bank loans. Byron Harris at WFAA TV in Dallas in December reported that the federal agency gave loans to figures associated with Mexican drug cartels that were never repaid, but until now no arrests had been made. Here's a report from The Financial:

On May 1, 2008, the United States Attorney for the Western District of Texas (USAO) announced the arrest of Andrew M. Parker, owner of San Antonio Trade Group, Inc., on conspiracy, wire fraud, money laundering, false statements and tax charges.

The Bank said an indictment returned this week by a federal grand jury sitting in San Antonio, Tex. alleges that from February 2003 to November 2006, Parker schemed to defraud the Export-Import Bank of the United States (Ex-Im Bank) by stealing millions of dollars in loan proceeds obtained by Mexican business owners from private U.S. lenders and causing multi-million dollar losses to Ex-Im Bank, which guaranteed or insured those loans based on false applications and supporting documentation submitted by Parker. The indictment also charges Parker with defrauding lenders in transactions not insured or guaranteed by Ex-Im Bank.

The information which started the investigation was provided by Ex-Im Bank. Ex-Im Bank will continue to work closely with law enforcement authorities to combat attempts to steal from the taxpayer.

See also the press release from the US Attorney on the arrest (pdf). It's impossible to tell from available information whether this is one of the individuals identified by WFAA, but I'm glad to see the US Attorney investigating fraudulent loans by Ex-Im Bank. It's clear they're not willing to effectively police themselves.

I've long contended on Grits that money spent cleaning up corruption, whether among police or in the financial sector, generates much greater marginal return (i.e., a "bigger bang for the buck") in the short term than just spending money on guns and overtime. If Byron Harris' report was accurate, there's still more to do. WFAA alleged multiple loan recipients with connections to multiple, competing cartels received loans totaling $243 million, so one hopes this arrest marks the first volley by the US Attorney, not the last.

RELATED: From the SA Express News:

• SA exporter indicted for fraud
• Indicted Texas exporter tied to woman at bilked bank
• High roller will remain in jail

See also prior, related Grits posts:

• Who are the big American drug bosses? How about the Ex-Im Bank?
• Voluntary guidelines don't ensure Ex-Im Bank won't give more loans to drug cartels
• New Ex-Im Bank guidelines won't prevent loans to drug cartels
• Ex-Im Bank stonewalling media on weak, new anti-corruption guidelines
• Ex-Im Bank scandal looks like tip of corruption iceberg

For the sake of accuracy ...

The Texas Department of Protective and Family Services has adopted a new motto on its logo. However, given the agency's behavior during the Great Eldorado Polygamist Roundup, the new slogan seemed both cliched and inaccurate, so I took a stab at improving it for them:

Whaddya think?

Also why do readers think that conservative bloggers tend to oppose the Great Eldorado Polygamist Roundup, while liberal bloggers seem more likely to support it?

Galveston, Brazoria police react wisely by dismissing cases after evidence room thefts

After the Tulia drug stings I began watching Texas' network of drug task forces, which Gov. Perry ultimately abolished in 2006, and a recurring theme in corruption cases involved lax standards and procedures allowing thefts from evidence rooms.

Though the task forces are gone now, the same problem cropped up in two recent cases in Southeast Texas where officials alleged police personnel stole cash or drugs. According to the Houston Chronicle ("2 area police departments hit by turmoil," May 30):

Criminal cases are being dismissed, a police detective has resigned and a former clerk has been indicted as police departments in two Houston-area communities deal with the disappearance of evidence, including drugs.

In the Brazoria County town of West Columbia, a detective quit the force after he couldn't comply with the chief's request that he produce cocaine that was held in evidence.

In Galveston, a grand jury has indicted a former clerk on a charge of stealing evidence from the Galveston police property room, causing the dismissal of 18 criminal cases.

The Galveston County grand jury Wednesday indicted former property room clerk Heidi Aline Domino, 27, of Texas City, on a charge of theft by a public servant, a felony punishable by up to 10 years in prison. If convicted, she would face a minimum sentence of two years in prison.

The investigation that led to Domino's indictment began after an undisclosed amount of cash was discovered missing from the property room in February.

The Sheriff's Office began an investigation, and Galveston County District Attorney Kurt Sistrunk asked the Texas Rangers to take it over.

The investigation uncovered missing cash, drugs and weapons held as evidence in the property room, leading to the dismissal of 18 criminal cases.

Seven of the dismissed cases were felonies, six for drug possession and one for sale of cocaine near a school. The remainder were misdemeanor drug and gambling violations.

The dismissal of the cases led Sistrunk to ask the Texas Rangers to conduct an audit of the property room in addition to the criminal investigation.

Officials also are dismissing seven to 10 drug cases investigated by a West Columbia police detective who resigned after being asked to produce some missing cocaine.

Joe McElroy, who had worked for the Brazoria County town's department since October, resigned May 20, chief Michael Palmer said Thursday.

Palmer said all the cases McElroy handled individually will be dismissed. "I don't want to erroneously put anybody in jail," the chief said.

Officials in Galveston and Brazoria County deserve extra credit in my book for their decision to drop low-level drug case that relied missing evidence or tainted officer testimony, particularly with so many exonerations peppering recent headlines. Why risk convicting an innocent person?

If authorities in Tulia had reacted that way when they first found out undercover officer Tom Coleman was an alleged thief at his prior police job (a subject revealed when an arrest warrant popped up for him in the middle of the investigation), the state of Texas could have been avoided that expensive and embarrassing public lesson.

Gas prices driving TDCJ to consider regional release of prisoners

With gas at $4 per gallon, the idea of releasing Texas prisoners from their own facilities or "regional release centers" instead of driving them all back to Huntsville is picking up steam, reports the Austin Statesman ("Texas considers regional prison release plan," May 30):

For years, most Texas prisoners have been taken to Huntsville when they complete their sentences before being discharged.

But now, officials are quietly considering a plan to begin releasing them at regional prisons, a historic policy shift that could save money and thousands of miles of crisscrossing bus rides across the Lone Star State.

At a time when fuel prices are squeezing the state budget, officials at the prisons agency concede the change could save big money. Officials so far haven't estimated the potential savings, but the Texas Department of Criminal Justice has budgeted $11 million for fuel for fiscal year 2008, and officials already expect they'll spend at least $16 million.

"No decisions have been made, but yes, we are looking at that concept," said Michelle Lyons, spokeswoman for the department. "The idea is that, by using regional release centers, it would be a way to release them closer to their final destination."

Under current policy, most freedom-bound convicts travel by prison bus to the vintage, high-walled Huntsville Unit — the state's oldest prison — where they are processed out and given $100 and a voucher good for a bus ride to anywhere in Texas.

Many go to nearby Houston, in what at times has been a controversial policy when recent releases commit new crimes.

"Taking everybody back to Huntsville to release them is one of the nuttiest policies I've ever heard of, and one that I've been trying to change for years and years," said Sen. John Whitmire, D-Houston, chairman of the Criminal Justice Committee.

A switch to regional releases has been proposed several times in the past two decades, to save money and increase operational efficiency of the prison system. But each time, it has been derailed for all but just a limited number of convicts, out of concern that prisoners need to be eyeballed with their records, including their mugshots, in Huntsville to make sure no one is mistakenly released. There have also been behind-the-scenes protests from local officials who would rather the ex-cons go live someplace else rather than return home or get released in their community.

Several years ago, women, state jail "confines" — generally lower-level criminals — and prisoners in some drug treatment and rehab programs started getting released at their lockups, rather than solely in Huntsville, Lyons said.

But of the 41,808 convicts who were released between September 2006 and August 2007, 33,655 gained their freedom in Huntsville, state statistics show. On average, 448 convicts per week are released there, according to Lyons.

Under the proposal, prison officials said the Robertson Unit in Abilene could be used as a discharge point for convicts from West Texas. If the program proves successful, prisons in other regions could also begin discharging convicts.

The reason they're considering the idea is purely economic, hoping to defray high gasoline costs. But I particularly like the idea of creating regional release centers if they could be used to coordinate and deliver re-entry services, not only to make sure they're releasing the right person.

Next steps, remaining questions in Great Eldorado Polygamist Roundup

Wow! The Texas Supreme Court's ruling that the Great Eldorado Polygamist Roundup was unjustified dramatically changes the terms of debate regarding the largest child removal case in US history.

Let's ponder a few implications of this ruling for the near and long term.

For starters, of course, the ruling means FLDS kids should be allowed to go home soon. It will be telling to see, though, if the court and CPS act with the same alacrity and disdain for detail with which they first seized the kids. My guess is that we'll see a bit more legal wrangling before that happens, mostly because of language in the opinion cited by an anonymous commenter in the last post, who added this spot-on observation, citing the next to last paragraph in the SCOTX ruling which states:

"While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief. The court of appeals’ decision does not conclude the SAPCR proceedings.”

Essentially, the SC puts the ball back into district judge Walthers’ court —to do as she pleases ordering ‘other appropriate relief to protect the children’ in the way of SAPCR orders (court orders on custody/parentage, etc.) And, especially, the Supreme Court particularly traps those mothers who ‘concede’–’admit’–likely being those who signed the coerced CPS ‘Plans’ – admitting they were abusive by clauses contained therein.

The best positive from the SC’s decision is it nearly forces Walthers to deal with each family individually. However, the bad news is the SC turned the whole ‘vacate the order’ over to Walthers, again,—but, qualifying that by telling her she can use other ‘appropriate protective’ measures.

That seems likely to me, which would mean there's a lot more lawyering yet to come. By all accounts Judge Walthers has behaved defiantly in the wake of the Third Court's ruling, hoping to justify her decisions instead of accepting that they were wrong. I don't expect that to change soon.

But there's another implication to this development that I find amusing and ironic. Texas CPS argued to the Supreme Court that the main reasons they couldn't return kids to their families were that they couldn't identify their parentage (despite the fact that they'd matched kids to parents in court and they didn't bother matching kids with parents when they seized them), and that if CPS released the kids, their families constituted a flight risk.

As a result, FLDS women's attorneys argued that the court had authority to use less punitive means to restrict families from leaving the jurisdiction, and the Supremes agreed; that's what gives Judge Walther the extra leverage mentioned above.

However, for the locals like Sheriff Doran and Judge Walther, IMO the real purpose of the raid was never to investigate child abuse but to run the YFZ Ranch residents flat out of the region. (This goal has frequently been openly discussed, including suggestions that the entire ranch's assets be seized to pay for CPS' boondoggle.)

After the women and kids were all gone, media accounts described the YFZ Ranch as nearly a "ghost town." But now a court order and CPS restrictions will REQUIRE them to stay in one place instead of going back to Arizona, etc.. Probably, even more sect members will join them, since these folks can't leave and the only FLDS temple is at the ranch. With FLDS recently ordering hundreds of voter registration cards, and court proceedings possibly stretching on for years, I predict the ruling virtually guarantees a huge FLDS voting bloc will henceforth act in Schleicher County to oust the politicians who sponsored this mess.

In other words, the raid likely has facilitated the future takeover of this West Texas community that locals had feared but which heretofore never actually occurred. If I'm right that the real goal was to remove them entirely, then this whole operation really backfired. If we don't see a wave of politicians in that county over the next few years named Jeffs, Barlow and Jessop, I'll be darn surprised.

After the Third Court of Appeals ruling, I posed several questions, some of which still remain unresolved in the wake of yesterday's result.

What does this mean for families that already signed CPS "service plans"? Will those be deemed invalid since the child seizures that spawned them weren't justified?

Similarly, if the judge had no authority to order the children's seizure, does that mean she also had no authority to order the much-ballyhooed DNA testing, results of which are expected back soon? What happens with those results?

Another still-unanswered question: "if CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as 'fruit of the poisonous tree' from any criminal prosecutions?" It seems likely, but I don't know.

What happens with the 90 new staff positions CPS got approval for in order to handle this case? Will the Legislature still allow them to move forward with those new hires, or will they shut down the expansion?

Perhaps most critically, when will the press investigate the pre-raid machinations that launched this fiasco? When will we hear the story of Rozita Swinton, the hoaxer whose phone calls started the mess? She's been incommunicado now for nearly two months. I want to know how she latched onto FLDS, who she spoke to before the incident, and when someone first figured out she was faking. Why hasn't she been charged in the YFZ case? Why haven't we heard her story?

All that said, yesterday's ruling was a mitvah and a blessing. Guy over at Messenger and Advocate offered this eloquent statement about the ruling's larger meaning for the nation and the Constitution:

I suppose in part it means, that the Founding Fathers, back in the day of this country’s infancy, were indeed inspired men, raised up by God to enshrine God given rights in our Constitution and Bill of Rights. In part it means that the rule of law is still paramount even today, even when a state is investigating an extremely unpopular religious movement. In part, I think it means that we should be grateful that the passions of the moment are subject to later review by cooler and calmer minds.

He's right; we should be grateful. So let me say formally, "Thank you Texas Supreme Court. ... Thank you Third Court of Appeals."

As egregious as the state's actions have been, you provided a constitutional backstop that limited the damage and protected individual rights. Today I'm proud of these members of the Texas judiciary. Let's hope Judge Walthers pays attention to what they've told her.

UPDATE: FLDS kids will begin returning home Monday.

NUTHER UDPATE: Judge Walthers added extra conditions that may delay the kids' return. More appellate filings expected. The Lone Star Times says FLDS was 'Walthered' again.

Texas Supreme Court rules against CPS, Judge Walthers; when will FLDS kids go home?

HUGE NEWS!! Many Grits commenters heard the announcement before I did, but the Texas Supreme Court this afternoon upheld the Third Court of Appeals mandamus order regarding children seized in the Great Eldorado Polygamist Roundup. Here's some of the initial press coverage:

• Salt Lake Tribune
• San Angelo Standard Times
• MSNBC
• Houston Chronicle
• Fort Worth Star Telegram
• Wall Street Journal Law Blog
• The Common Room
• National Public Radio
• Talk Left
  
• Dallas News
• Messenger and Advocate
• Coram Non Judice
• The Beldar Blog
• The Volokh Conspiracy
  
• TRLA: Fighting the Good Fight
  

And here's a copy of the Texas Supreme Court ruling, and here's the partial concurrence/partial dissent. Congrats to FLDS families and Texas Rio Grande Legal Aid attorneys who defended their parental rights in these cases.

UPDATE: The ruling is another unmitigated bench slap for San Angelo District Judge Barbara Walthers, if more modestly worded than pronouncements by the Third Court of Appeals. Said the Supreme Court of Texas: "Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted." Translation: "We 'carefully examined' the judge's work at trial, and the 3rd Court is right - she screwed up big time."

MORE: See Next steps, remaining questions in Great Eldorado Polygamist Roundup

Foundation backed juvie program in Indianapolis may hold clues for near-term reforms in Dallas and Houston

Via CrimProf Blog I noticed this article about the Annie Casey Foundation-inspired reforms to the local juvenile justice system in Indianapolis ("Transforming juvenile justice: Effort has cut numbers in lockup," Indianapolis Star, May 27).

I'm interested in learning more about what they're doing because the Annie Casey Foundation is also working with courts in Dallas and Houston to reform their juvie systems, and Indiannapolis appears to be several steps further along in the process. Reported the Star:

Far fewer youths file into Marion County's juvenile lockup each day, a key result of a reform effort that has reduced crowding and diverted thousands of children into programs outside the center's walls.

But architects of the overhaul of the juvenile justice system see the changes as only a starting point. In the third year of a program fueled by a national advocacy group, officials are aiming at ending racial disparities in punishment and transforming a system that many see as perpetuating delinquency rather than healing it.
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Changes have come quickly. The county's juvenile court judge and magistrates reject more delinquency cases submitted by prosecutors or schools. Some get resolved short of court by involving offenders' families in the case.

And a reception center screens youths more stringently, sending more lower-risk offenders home before trial instead of locking them up.

That might sound like a way to promote crime rather than stop it. But juvenile court Judge Marilyn Moores says data collected through the project have helped earn police support for the approach.

"Kids who are low-level offenders need to be out in the community and stay connected with the community, because it positively affects them," she said.

In detention, "the low-level offenders become high-level offenders."

It makes a lot of sense that if such a mentality could take hold, it would happen first in the juvenile system. The Annie Casey Foundation (not to mention local officials) deserve a lot of credit for embracing this innovative and research-based model.

Local juvie justice officials in Texas will want to watch these pilot programs closely. Especially with Senator John Whitmire and others at the Legislature proposing a radical downsizing of the Texas Youth Commission - a move that would shift responsibility for most serious juvenile offenders to the counties - it's timely that the foundation and Texas' two largest counties have teamed up to pioneer new alternatives. Here's a little more about how the Annie Casey sponsored program is playing out in the ground in Indianapolis:

The Casey Foundation's aim is to tailor decisions to each child's circumstances, sending a child to detention as a last resort. Advocates say the Casey reforms drive down detention costs, make lockups safer and reduce repeat offenses, improving public safety.

In Indianapolis, early data show stark changes taking hold without a surge in juvenile crime.

In 2004, the detention center held 171 detainees on an average day, far more than the 144 beds could accommodate. Earlier this year, the same measure was below 100. Officials have closed units to reduce capacity to 112.

Detention admissions have fallen by more than half, to 2,214 last year.

A committee of court officials, experts and community leaders developed a way to screen kids who most need to be in custody. The goal is to allow detention only when an offender likely won't show up for court or is a danger to the community. Alternatives include electronic monitoring, home detention and a curfew.

The project has drawn in prosecutors, public defenders and other players in the system, spurring more changes.

Some problems now are resolved short of a criminal case. Minor misdemeanor case filings have decreased, and probation violation filings are down nearly 40 percent over two years. In the past year, the probation department offered informal administrative punishments to more than 600 violators, keeping them from being thrust back into court.

It'll be interesting to see what version of this model folks in Dallas and Houston come up with; if those two counties could achieve those kind of results, it might indeed reduce inmate populations enough to reasonably speak of downsizing TYC.

Court filings all in; TX Supreme Court set to decide YFZ Ranch custody battles

Thanks to commenter KBP and others for pointing out that the following documents were filed with the Supreme Court of Texas regarding the Great Eldorado Polygamist Roundup:

TRLA's response to the Writ

and, better late than never:

BRIEF OF AMICI CURIAE, American Civil Liberties Union & American Civil Liberties Union of Texas, IN OPPOSITION TO RELATOR’S PETITION FOR MANDAMUS

Also, for reference, here's the state's filing with the Supreme Court and the Third Court ruling they're appealing.

The Supremes could now make their decision at any time. Though perhaps I'm engaged in wishful thinking, I'd put the odds at about 6-5 in favor of rejecting the state's writ of mandamus - perhaps even a little better than that, but with a lot of room for error.

What's your prediction on the outcome? What will happen if the state wins its appeal? What will happen if they lose?

Cynthia Kent: Smith County needs more court space, not a bigger jail

Forget building a bigger jail that voters don't want, says Tyler District Judge Cynthia Kent. She wants to reduce the need for more jail space by adding one or two courts to process cases more quickly. Reported the Tyler Morning Telegraph ("Judge: New court would clear out Smith County jail," May 28):

State District Judge Cynthia Stevens Kent says adding one or more new courts would do more to solve Smith County’s jail overcrowding problem than adding ever-higher numbers of new jail beds.

In a meeting of the Council of District Judges, she said Smith County should ask the Texas Legislature to create at least one — preferably two — new district courts for the county when lawmakers convene in January.

“We can’t build our way out of the jail overcrowding problem,” she said. “So let’s look at what we can do.”

With the regular session nearing, she said, Smith County commissioners should ask the Legislature to create the courts. The county currently has four district courts and three county courts-at-law.

Adding a court would help move cases through the county’s judicial system faster, she contends, and help clear out jail beds.

Smith County has the capacity to house a maximum of 755 prisoners, and a state remedial order to ship out all inmates above that number to other counties. As of Wednesday morning, 197 prisoners were housed in other facilities at a cost of $40 per day, per prisoner.

Voters rejected a bond proposal for a new jail and criminal justice complex last November, leaving officials scrambling to deal with the overcrowding and the remedial order. One new program judges offered even before the bond vote — the Alternative Incarceration Center — has shown good results.

But a second program, the Jail Expedited Case Court, showed disappointing results and was disbanded in March.

“I know that for many reasons, the JECC didn’t work,” Judge Kent said Wednesday. “There were some mechanical problems.”

But the principle was sound, she believes: a more efficient court system is an integral part of solving the jail overcrowding problem.

But Judge Kent added that a new court, without proper facilities, would be limited in its effectiveness.

“Let me be blunt,” she said. “We (the courts) have not had our facilities needs addressed for 30 years. This courthouse was built for two courts, and we now have seven.”

Kent is dead right that “We can’t build our way out of the jail overcrowding problem,” and it would behoove officials in other jurisdictions to also come to that realization.

I don't have enough information to hand to predict whether more courts would reduce jail overcrowding in Smith County. But I certainly agree with Judge Kent the building is far too small for the functions it serves. Not only that, I don't think many people would disagree with me that it's one of the ugliest courthouses in the state, appearing as though it were designed by some Soviet-era architect with a fetish for concrete boxes.

As if to advertise the building's deficiencies, even the requisite statue of Lady Justice next to the courthouse entrance holds aloft her traditional scales but wears no blindfold. The Houston Chronicle awhile back said that omission is "fodder for a rueful joke among defense attorneys. In Smith County, they say, justice is far from blind."

Judge Kent led the charge against new jail bonds in 2006 and 2007, and has been a key leader in Smith County promoting incarceration alternatives. I'm glad to see she's not done promoting alternatives to unnecessary jail building in my hometown.

UPDATE: Thanks to Judge Kent for sending me a copy of this letter to Smith County officials providing her research and arguments in support of adding 2 new courts in Smith County with the goal of reducing jail overcrowding.

See prior Grits coverage of the Smith County Jail saga:

• Memo to Tyler officials: Listen to your voters and use new tools to reduce jail overcrowding
  
• Counties that rejected new jails must now get serious about diversion'
• Voters who rejected county jails looking for better justice policies
• Texas prison and jail vote results
  
• Public participation required for vigorous jail debates
• The Jail that Ate Tyler' and other stories
  
• Debate intensifies over Tyler's $125 million 'Taj Mahal' jail
  
• Architect: Voters should accept nine-figure pricetag for new jail
  
• Tyler's jail alternative saves $1 million in first nine month
  
• Smith County voters have more options than building Taj Mahal jail
• Tyler's day reporting center reduces overcrowding, saves money
• 'Unsellable' Tyler jail still too small
• Tyler's Alternative Incarceration Center opens; DA thinks no one qualifies
• Tyler judge: End jail overcrowding with community supervision of nonviolent offenders
• More on Tyler's alternatives to jail overcrowding
• Incarceration Alternatives: From Smith County, a plan emerges
• Update: Tyler Alternative Incarceration Plan, Day Reporting Center funded
• Tyler voters: Jail bonds a 'No-No"
• Jail bond vote may become annual affair in Tyler

Required to Confess?

Former Dallas City Councilmember James Fantroy's conviction on corruption charges and refusal to admit his guilt in the face of the verdict has Big D political observers in a tizzy. The news inspired Dallas News columnist Steve Blow to overcome his gag reflex long enough to produce this insight about the wisdom of insisting defendants confess to obtain a lower sentence ("Confession shouldn't be a condition of Fantroy's freedom," May 28:

in a larger context, I have to confess some unease about making confession a requirement in any part of our criminal justice system.

As recent events in Dallas County have made so clear, innocent people really do get convicted.

So while confession may be good for the soul, I’m not sure it should ever be a requirement for freedom.

This issue has emerged as more and more innocent people have been freed by DNA evidence. Some talked about the squeeze they felt when they came up for parole.

Prisoners are routinely asked about their crimes. There’s the distinct impression that owning up to a crime and showing some remorse will go a long way in winning parole.

“It’s a Catch-22 if you are an innocent person,” said the Rev. Jim McCloskey, executive director of Centurion Ministries, which works to free the wrongly convicted.

“It’s very common. It has happened in a number of our cases.”

It has happened to kids, too. One of the many criticisms leveled at the Texas Youth Commission was that it required young people to confess to crimes as a condition of being “resocialized” and ready for release.

“Basically, if you were wrongly convicted and sent here and then stuck to the truth, you could be punished for that. If you lied, you could move ahead,” said Youth Commission spokesman Jim Hurley.

While TYC counselors still like to see young offenders take responsibility for their actions, confession is no longer a condition of release, he said.

Blow's point is well taken, especially since so much of the investigatory process in modern US policing is about convincing defendants to confess. About half of criminal convictions result from confessions, according to a book I'm reading by Richard Leo on police interrogations. But coercing confessions has consequences; mainly the risk of punishing the innocent and freeing the guilty.

Among those who was penalized by his failure to confess to crimes he didn't commit was James Lee Woodard, who was released from prison recently after spending 27+ years behind bars. He actually "stopped attending his parole hearings because gaining his release would have meant confessing to a crime he didn't do."

Fantroy appears by all accounts but his own to be guilty as homemade sin, but quite a few people like James Lee Woodard who "looked guilty"on the front end have wound up exonerated down the line. I tend to agree with Blow that a confession shouldn't be required for a reduced sentence or parole. Fantroy's circumstances aside, occasional errors by the system are simply a fact, and when they occur it'd be unfair to further punish actually innocent people for them.

RELATED from the Dallas News:

• Scott Farwell: Fantroy says he'll go to prison rather than admitting guilt
• Gromer Jeffers: Why did Fantroy choose jail?

Killing the Messenger: Bexar probation chief wants to fire PO who snitched on faulty urinalysis results

Instead of acting to resolve the use of questionable forensics by a private vendor, Bexar County probation director Bill Fitzgerald decided to kill the messenger. He plans to fire Sherri Simmonelli, the head of an employees' group and lead whistleblower regarding the lab, and her co-workers are protesting. Reported KSAT:

Probation officers gathered at the Bexar County Justice Center in support of one of their own, now facing termination because the officer said she spoke to the media.

Sheri Simonelli said she was recently placed on administrative leave pending termination for talking about a county-contracted drug testing lab producing a significant number of high positives.

"They are going to take retaliatory action against this individual for conducting herself in a manner of the highest calling of conscientiousness and conscience and duty to a fair justice system, attroney David Van Os said.

Bexar County currently contracts Treatment Associates on the 700 block of San Pedro Avenue for its drug testing.

In February, the number of positive urinalysis tests jumped dramatically, leading Simonelli and others to begin asking questions.

Simonelli, also president of the Central Texas Association of Public Employees, said some of the positive tests were taken to another lab, which produced negative results.

Fitzgerald of all people should know that problems at the Bexar probation department's troubled urinalysis lab aren't new. It's been producing sloppy or questionable results for much of his tenure. You'd think he'd thank an employee for trying to fix errors instead of fire her over it.

But then, this is Bill Fitzgerald's general modus operandi. He famously announced a couple of years ago just before Christmas that he would have all 430 employees re-apply for their jobs and submit to retention interviews. Why? He was upset some of his employees, including Simmonelli, were trying to form a union.

Now he reacts to news of flaws by a urinalysis lab by firing the employee who caught the errors?

Judges in Bexar County need to rein in Mr. Fitzgerald, and consider shipping him back to Phoenix. He seems a lot more concerned with covering up problems than fixing them. This boorish behavior can have no good result except to allow future problems to fester and further alienate his already disgruntled staff.

What options besides jail building for Waco?

So what should McLennan County do to reduce jail overcrowding instead of building a new private jail?

In my view they need plans to address the demand side of the equation; counties statewide face the same problems, and they cannot all build their way out of the dilemma.

According to these data from the Commission on Jail Standards (pdf), McLennan County has the second highest incarceration rate in Texas among counties with more than 200,000 people, incarcerating more than 4 people per 1,000 residents. More than 20% of McLennan's pretrial detainees (95 out of 473 as of April 1) are charged only with misdemeanors

More than half of McLennan's jail inmates were incarcerated awaiting trial as of April 1st (pdf), while not too many years ago the statewide average was only 30%. To get back closer to that level, judges need to more aggressively use pretrial services to vet low-level offenders for release on personal bonds.

The Sheriff, Waco PD and county commissioners should also look at implementing HB 2391 in their county, which allows officers to give citations instead of arresting for certain low-level, non-violent misdemeanors. I've argued repeatedly since it passed in 2007 that voters should reject new jail building proposals if their officials aren't using new tools available to them to reduce overcrowding, particularly the new discretion under HB 2391.

The other option McLennan commisioners should pursue is to create low-level incarceration alternatives, perhaps modeled after the day reporting center in Tyler which has saved big bucks for a comparably sized jurisdiction.

Jail building should be a last resort, but McLennan County wants to pursue building more jail beds than they need without even trying other methods to reduce the jail population.

I've previously wondered which would prevail: Texans' taxation revulsion or their incarceration addiction. McLennan's example shows some counties don't want to make such a choice, wrongly thinking they can have their cake and eat it too.

'A couple Jills with their eyes on a couple bills': McLennan County seeks profit over public safety with privatization schemes

Because there ain't no man
Who got the money in his hand
Who got any of that bread
Bein' slow in the head
The easier it looks
The hotter it hooks
There ain't no such thing as easy money

- Rickie Lee Jones, Easy Money

Nearly every jail in the state of any size is overcrowded and struggling to find enough guards, but there are still some local officials that think they can solve the problem for free or cheap.

In McLennan County (Waco is the county seat), a story in today's Waco Tribune Herald ("Solutions aplenty sought for jail overcrowding dilemma," May 28) informs us that the county commissioners court is "seeking proposals from private vendors to alleviate overcrowding at the county jail, a situation that earlier this month prompted them to authorize the hiring of 12 new jailers." The commissioners court laid out four different versions of a privatization option - indeed, the only possibility that seems not to be on the table is to let the Sheriff's department run the jail. Reported the Tribune Herald:

County commissioners have settled on four options for solving jail overcrowding.

With the county’s lease with private detention company Community Education Centers to operate a 329-bed downtown jail expiring Oct. 1, one option seeks proposals to operate and manage the McLennan County Detention Center on Columbus Avenue.

In recent years, the county has earned about $800,000 a year from its contract with CEC, formerly CiviGenics, which contracts with several agencies, primarily the federal government, to detain prisoners.

However, in the past year, the county’s revenue stream has dipped to about $200,000 because the county is paying CEC to house overflow prisoners from the county jail on State Highway 6.

Lewis has described the county’s current contract with CEC as a “sweetheart deal” but warned Tuesday that the good times are almost up and that a new contract might approach $61 a day to house each prisoner.

Precinct 4 Commissioner Ray Meadows bristled at the suggestion.

“For $61, we could just put them all on a cruise ship and let them float around and let the cruise people take care of them,” Meadows said.

A second option calls for a private company to finance, design, construct, operate and manage a new 1,000-bed jail to be built on 8.9 acres west of the current 931-bed facility on Highway 6.

A third option combines the first two, with a company operating the downtown jail and building and operating the new 1,000-bed jail on Highway 6.

The fourth option calls for a private company to take over all county detention duties except for booking, releasing and records. That would include operating the downtown and Highway 6 jails and building a new one.

Commissioners hope to look far enough into the future and build a large-enough jail that can help pay for itself or make money for McLennan County by leasing prisoner space to other counties with overcrowded jails, Lewis said.

The jail standards commission’s remedial order has also focused on the prisoner-to-staff ratio, which the state says is out of compliance. The sheriff is in the process of hiring 12 new jailers at a cost of $203,000 to help regain compliance.

Several thoughts come to mind reading this account. First of all, if the contract with CEC earns $200,000 per year and the county just spent more than that on extra jailers, they're really not saving any money at this point through the privatization route.

That makes me wonder why they think that would change going forward? When a private contractor can hold federal immigration inmates for $88 per day per head, what incentive do they have to house McLennan County's prisoners on the cheap?

The line about putting inmates on a cruise ship for $61 per day is funny, but it displays a pretty grave misunderstanding of the private prison market in Texas. A few years back private companies were willing to give "sweetheart deals" like the one McLennan County has to get their foot in the door; with fat federal contracts available, those days are likely behind us.

What's more, even if they can find someone to operate the jail on the cheap, the county is still liable for conditions, abuse, etc.. It may be less hassle for the Sheriff to let someone else manage the operation, but the county must still pay to operate the jail, plus the company's profit, and if anything goes wrong county taxpayers are still on the hook.

The McLennan County private jail scheme is a speculative proposal wherein the commissioners court hopes to become carceral entrepreneurs, selling bed space to others. It may sound good to suggest building "a large-enough jail that can help pay for itself or make money for McLennan County by leasing prisoner space." But what that really means is that - if present, untenable increases in incarceration rates in the face of declining crime are not sustained - the county will wind up with a huge, empty jail and local taxpayers must still pay off the bonds.

For example, if John McCain becomes President in 2009 and enacts comprehensive immigration reform, which he favors, the federal demand for immigration beds could evaporate nearly overnight, freeing up existing private prisons to soak up excess demand by the counties.

Alternatively, many counties are implementing alternatives to incarceration that could reduce carceral demand over time.

Either of those eventualities - not to mention a litany of other conceivable vicissitudes of fate - could turn McLennan County's entrepreneurial jail scheme from a moneymaker into a long-term financial disaster.

MORE: What options besides jail building for Waco?

Ambrogi: Appellate court ruling made blogging about YFZ raid safe

Having earlier criticized the legal blogosphere's relative silence regarding the Great Eldorado Polygamist Roundup, Robert Ambrogi at Legal Blogwatch writes that with the "appeals court ruling that the state had no right to seize the children, the blogosphere is at last breaking its silence." He continued:

In my earlier post about the silence of the blogs, some of those who commented proved prescient. One wrote that the raid "has both the Left and the Right holding their breaths with uncertainty." Another said that the issues "are so complex and distasteful" that many blawgers are "adopting a wait and see attitude." Still another said, "the 'ick' factor overwhelmed the facts." With yesterday's opinion, it is now safe for bloggers to break their silence.

Among legal blogs Ambrogi singled out:

Peter Tillers, for one, calls the case a "civil liberties disaster." Steven Ballard says the court "did the right thing in denouncing the outrageous government raid." Eugene Volokh describes the opinion as "a sharp and detailed rebuke of the Texas Department of Family and Protective Services," and considers the possibility of lawsuits against the department. Dahlia Lithwick finds parallels to Guantanamo, "as a noble effort suddenly got mired down in tricky factual disputes, cultural and religious clashes, and the practical necessity of warehousing hundreds of human beings for an indefinite period of time."

A few more legal blawggers have chimed in since Ambrogi wrote that. Civil Commitment adds that "much of the problem with the FLDS kidnapping is that there's nothing to like," quoting Wendy McElroy, an "individualist" and "feminist" who's hopping mad. At American Thinker, an attorney and a philosopher co-author an essay explaining the real precursor to the Great Eldorado Polygamist Roundup: "The McMartin daycare abuse tragedy blazed a trail."

Meanwhile, here's an MSM piece for the attorneys in the crowd: The Christian Science Monitor yesterday surveyed the church-state issues evoked by the YFZ raid and its aftermath. The story included this observation:

"If I had been advising the [DFPS officials] in their suit, I would have said, 'Don't even think of asking about their beliefs,' " says Marci Hamilton, an expert on church-state issues at the Cardozo School of Law in New York. "Ask about their conduct and intent to act. They don't have to abuse a child to be guilty of a felony if they have the intent. There should have been more focus on conduct."

The Third Court agreed with Hamilton's interpretation of what's historically been considered justifications for removing somebody's kids - their actions, not their religious beliefs. It's the affirmation of that legal touchstone, I think that perhaps has made the lawyers in the blogosphere more loose lipped on the subject.

In any event, there's plenty to talk about. To call the situation "fluid" would insult the relative stability of fluids. "Explosive" would be a more accurate term. Ambrogi's right there should be lots of continuous fodder going forward for the legal blogger crowd.

MORE: Forgot to mention a couple of Texas lawyer-bloggers who've written on the subject, starting Big Tom Kirkendall's recent post over at Houston's Clear Thinkers. Also, John Floyd reminds me that I should have mentioned his recent extended commentary on the subject. Several arguments in favor of the state's position have been assembled by our friend TxBluesman at Coram Non Judice. Who else am I missing among legal bloggers?

No 'male sexual perpetrators' identified involving FLDS kids in SCOT case

Here's an interesting line quoted in the Salt Lake Tribune from the CPS' pleading to the Supreme Court regarding FLDS mothers:

"Failure to grant a stay will mean that approximately one hundred twenty-four children will be returned to alleged mothers without any male sexual perpetrators being identified," state attorneys wrote.

I take that as an admission that, for the children whose mothers were covered by the Third Court's ruling, the state has not yet identified a single "male sexual perpetrator" despite six weeks of investigation. How then, is this anything more than an expensive and ham-handed fishing expedition?

I've repeated this ad nauseum, but it's worth pointing out again the four reasons CPS is allowed to seize someone's children in Texas:

1. an immediate danger to the physical health or safety of the child
2. the child has been the victim of sexual abuse
3. the parent or person who has possession of the child is currently using a controlled substance
4. the parent or person who has possession of the child has permitted the child to remain on premises used for the manufacture of methamphetamine

So if no one alleges FLDS members engaged in meth manufacturing or drug use, the children were physically healthy and well cared for, and weeks of investigation have identified no "male sexual perpetrators," how can CPS justify keeping these kids, exactly?

See The Common Room for much more news on the Great Eldorado Polygamist Roundup.

Plano steroid dealer says he sold to police in five Metroplex cities

Somehow I missed the story from earlier this month about a Plano steroid distrubutor who's threatening to blow the whistle on Metroplex area police officers. While headlines focused on his alleged sale of steroids to former Cowboys punter Matt Lehr, reported WFAA-TV ("Man says Plano police stole steroids from him during a raid," May 1):

David Jacobs says he’s ready to name names of police officers who got steroids from his network. "We as people have given them a set of authority to uphold these laws, but they are breaking them right in front of our faces," said Jacobs.

Jacobs is talking about officers in five cities: Garland, Richardson, Dallas, Arlington, and Plano. He says the Plano officers stole from him during a raid.

"And to steal money from my house, and steal steroids, and steal growth hormones from my house, then put handcuffs on me and then judge me," said Jacobs.

Plano police say Jacobs has yet to file a formal complaint with them so they have not investigated the allegations.

Federal prosecutors are investigating professional athletes.

When asked if he thought that a lot of professional athletes would be brought into this scandal, he answered: “I think this is way bigger than baseball.”

According to the Dallas News, Jacobs informed police about the alleged theft and steroid use by officers when he was arrested, but apparently Plano PD was waiting for him to complain formally to Internal Affairs. That's a pretty lackadaisical response to allegations by a known steroids dealer that he sold drugs to your officers!

Will these allegations of steroid use by Metroplex police be investigated or swept under the rug? And will authorities express as much interest in Jacobs' police officer clients as those who are professional athletes? They should, but I doubt it.

See prior related Grits posts:

• Where is Congressional investigation of steroid abuse among law enforcement?
  
• Why test Texas high school athletes for steroids but not police officers?
• Arbitrator reinstates steroid using police officer
  
• Cops on Steroids
• Lawsuit: Private mercenaries, police trainers abuse steroids in Iraq
• Insert Shrunken Testicle Joke Here: Book by ex-Texas cop defends steroid use by police
  
• Feds should check names of steroid customers with state law enforcement registries
• Readers back steroid testing for cops and high school athletes
  

Will expanded immigration detention exacerbate Texas' prison guard shortages?

Regular readers know that Texas prisons and county jails face a severe understaffing crisis caused by low pay and the rural location of facilities, and that in federal facilities the problem may be even more pronounced.

Meanwhile, my prediction that immigration detention would drive prison expansion in the near term has come true, adding another category of detention facilities that require more guards when no one can find any. It's hard to see how these long-term trends can co-exist viably. Where does it all end?

At the Fort Worth Star Telegram, Jay Root had this story Sunday ("Border patrol employs zero tolerance approach in Del Rio," May 25 ) detailing outcomes from ending the so-called "catch and release" policy that allowed undocumented immigrants out of detention while awaiting a detention hearing. The result has been:

an almost insatiable demand for jail space.

Eight years ago, the Val Verde County Jail had 180 beds. This year, after a second 600-bed expansion, the maximum-security jail has room for 1,425 prisoners, an increase of almost 700 percent. While the state prisoner population in Val Verde has remained about 70 to 80 a day on average, the number serving time for federal immigration and drug offenses has skyrocketed, officials say.

"If it wasn't for federal prisoners, we wouldn't need any of this. It just wouldn't be necessary," Jernigan said while giving a tour of the huge facility he oversees in Del Rio. "This is a federal court city, and there's a need to house federal prisoners here."

Two prisons specializing in federal detainees are going up along the Texas-Mexico border southeast of here -- a 654-bed unit in Eagle Pass and a 1,500-bed jail nearing completion in Laredo. Like the Val Verde lockup, these facilities are run by the Geo Group, formerly known as Wackenhut, which last year posted its best financial results ever, the company said.

Even the largest jail for illegal immigrants, the Willacy County Jail, is too small to accommodate federal demands. Located in Raymondville -- nicknamed "Prisonville" -- it is expanding capacity from 2,000 to 3,000 beds this year, officials say.

The detention boom hasn't been done on the cheap.

According to Immigration and Customs Enforcement, it costs $88 a day to house a prisoner in privately run jails.

By comparison, the state of Texas spends about $40 per day to house state prisoners, and in many county jails the cost is less than that. So the expansion of immigration detention facilities puts tremendous financial pressure on counties and the state to increase guard pay to keep enough warm bodies in C.O. slots. For the most part, they're not in a position to do that.

Meanwhile, I swear I see a different set of arguments and logic used every time somebody tries to claim that border enforcement is "working." Here's Root's effort:

In 2007, 22,920 people were caught in the Del Rio sector, many of whom passed through the Val Verde jail. In 1974, the earliest year-end figures available, almost twice that many -- 44,806 --were caught. Authorities believe that fewer captures mean fewer illegal crossings.

Of course, those data don't tell us there were "fewer illegal crossings." They only mean that for all the extra spending, there were fewer detentions. It could be true that the number of crossings overall went down - in fact that's almost certainly the case since the housing market in Texas and elsewhere crashed overnight last year and many jobs drawing immigrants were in construction. (Root also reports that overall arrests last year were down all along the border, though not as much as in the Del Rio sector.)

However, simply using the metric of how many ICE caught to tell if they're succeeding amounts to a self fulfilling prophecy. There's little hard evidence I can see that expanded enforcement is responsible for the decline. Indeed, if the number of detentions had increased, I'm pretty sure that would have also been spun as a success.

In any event, my question for the moment isn't whether the policy works, but is it sustainable?

Will overcrowded county jails be forced to send local inmates out of county to make room for increased immigration holds? Harris County already must send hundreds of inmates to a private prison in Louisiana, yet their Sheriff is plowing forward to expand detention of immigrant in the jail.

Further, will high per-inmate rates for immigration prisoners indirectly raise costs for locals by putting pressure on guard pay or causing guards to leave public employ to work for rapidly expanding private facilities?

Some counties are even proposing speculative jail building hoping to lease bed space to ICE, apparently banking on the idea that immigrant detention will remain high for the next 20 years or so while they pay off public bonds. With all remaining presidential candidates favoring comprehensive immigration reform, that's probably a bad assumption. Talk about sowing the seeds of your own destruction!

Texas prisons and largest jails already can't hire enough guards to function safely at full capacity. If immigration detention continues to expand at double digit rates, we may soon reach a tipping point regarding cost and safety, if we haven't already, that forces prison builders to put on the brakes.

RELATED: From the Austin Statesman, "More illegal immigrants are being charged criminally in Austin," May 28.

SEE ALSO: If you didn't see Stephen Colbert's suggestions for prison expansion options, check it out here via Texas Prison Bidness:

Rounding up news on the Great Eldorado Polygamist Roundup

Just checking in to point readers to good newspaper and blog coverage of the Great Eldorado Polygamist Roundup:

• Fort Worth Star Telegram: Sect case hitting CPS employees in pocketbook
• Salt Lake Tribune: FLDS court fight heats up
• Salt Lake Tribune: Battle over FLDS kids gets rough
• Houston Chronicle: Lawyers cry foul in FLDS seizures
• By Common Consent: A brief apology for the LDS apologia regarding FLDS
• Beldar Blog: Beldar on Volokh on the Texas polygamy child custody case
• The Common Room: Updates and links

Have a happy Memorial Day folks. Check back tomorrow for more Grits.

Which is worse: Life without parole or the death penalty?

Reacting to the Juan Quintero verdict, the ADA blogger over at Life at the Harris County Criminal Justice Center poses the question: Which is worse? The death penalty or life without parole (LWOP)? The blogger, A Harris County Lawyer, concludes that "I don't think anyone can really make the argument that LWOP is more severe than the death penalty." I reacted thusly in the comments:

How do you know ... the afterlife isn't entirely glorious and we do every executed offender a tremendous favor by hastening their arrival? Perhaps the streets are paved with gold and all our deceased friends and family will be there to greet us on the other side. Many Christians believe some version of that to be the case, and more than a few offenders turn to Christ during their travails, just like the thief on the cross before he expired.

To repeat my earlier reasoning, everyone dies but not everyone stays locked up in a cage for decades. Death is perceived as a relatively more severe "punishment" because we don't know what comes after, so people fear the unknown. But death is also a sentence to which we're all condemned - everyone's entry card to the human condition bears an unknowable expiration date - which makes it at once as un-extraordinary as it is exceptional. That sounds contradictory, but that's because death as a punishment creates a paradox that's just not there for LWOP. With LWOP, society knows EXACTLY what punishment the offender is getting, because we're all here on earth to see it. With death, at most one can "hope" it's enough. And since vengeance cannot bring back the victim, it never is.

What do you think? Which is the harsher punishment, LWOP or the death penalty?

BLOGVERSATION: At Simple Justice, Scott Greenfield tells this related anecdote about attitudes toward prison and the death penalty in China:

I was half of a contingent meeting with a judge from Mainland China. My bookend was Larry Goldman, former president of the National Association of Criminal Defense Lawyers and sophisticated New York bon vivant.

Eventually, discussion turned to China's execution of prisoners, enough to make a Texan blush. Bearing in mind that China (pre-quake) had far more people than it could handle, I anticipated that the judge would view life as a rather expendable commodity, and justify the imposition of the death penalty as being a fairly mundane sanction, where a billion fewer people would not be noticed.

The judge did not. Not at all. He was quite serious in explaining that he believed that death was a kinder outcome to the defendant than life in a Chinese prison without parole. In fact, he was critical of our view that putting a human being in prison for the rest of his life like a caged animal was less cruel.

The picture he painted (mind you, he was talking about Chinese prisons, not American) was of a slow, lingering death of 20 to 50 years, maybe even longer, making it sound like a means of horrible torture. Death by a thousand days, rather than swift and painless not too painful. He could not understand why we would think the suffering of life in prison was of a lesser quality than execution.

See recent related Grits posts:

• Why choose life? Exploring possible reasons for the Quintero verdict
• Danalynn Recer on the Quintero verdict

ALSO RELATED: From the Houston Chronicle, "Will death become the exception, not the rule," May 26

Study: Elected judges issue more opinions of lesser quality

A story today in the New York Times by Adam Liptak focuses on electoral selection of judges in the US, and mentions this interesting if predictable tidbit ("Rendering justice with one eye on re-election," May 25):

A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.

“A simple explanation for our results,” wrote the paper’s authors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”

The story also supplied some interesting data on elected judges in the US compared to the rest of the world:

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

My own views on this controversy are somewhat transient and situational; I like judicial elections because it gives you a chance to vote out bad judges. But the races are too dependent on candidates atop the ballot, and most voters don't typically make informed decisions about judicial candidates. The idea of a retention election seems to possibly capture the best of both worlds.

Will next Texas DNA exoneree come from death row?

Will the next "actual innocence" exoneration in Texas come from death row?

Michael Blair was condemned to death for raping and killing Ashley Estell, but now collin County DA John Roach admits DNA evidence proves he didn't do the deed. Says the Texas Death Penalty Blog:

Don't worry, though. Because this man has confessed to other brutal sexual assaults, he won't be freed. Ever. But a Texas DA, a Texas jury and several appeals courts almost had the blood of an innocent man (in this case) on their hands. He was convicted because he was a known child molestor who showed an interest in the case. If the process moved as quickly as death penalty proponents wished it did, he'd be dead by now.

Even more to the point, authorities wouldn't know they should still be looking for Ashley Estell's killer. See early media and blog coverage of the story:

• Stand Down Texas' analysis and news roundup
• Collin County Observer: Roach calls to void Blair's death sentence
• Dallas News: Michael Blair Case Unravels
• Capital Defense Weekly: Texas death row exoneration in the works?
• Defending People: Actual Innocence in Collin County

Danalynn Recer on the Quintero verdict

Yesterday evening the missus and I had dinner with a friend from our college days, Houston attorney Danalynn Recer, founder of the Gulf Regional Advocacy Center. She's taking a break in Austin after concluding the long and grueling capital murder trial of Juan Quntero last week, an illegal immigrant copkiller who jurors gave a sentence of life without parole (LWOP), a verdict that surprised many court watchers.

The Quintero trial wasn't about guilt or innocence, but entirely about what sentence to give out: life without parole or the death penalty. Dana barely spoke to the press during the trial, much to their chagrin, so I appreciated that she agreed to a short interview about the Quintero case for Grits.

Speculation has abounded since the verdict, including on this blog, about why the jury voted they way they did, but Recer thinks that "if people want to take a lesson from this case, they should take the jurors at their word" when one of them declared, "I believe he has value ... He's loved by many of his family and friends, and that was number one." She said the jury simply lived up to their duty identified by the Supreme Court to issue a verdict based on a "reasoned moral response."

Quintero was "so remorseful and self-hating over the incident," said Recer, that he seriously considered becoming a "volunteer," i.e., simply acquiescing in a death sentence in order to punish himself and avoid life in prison. Quintero's two teenage daughters talked him into going to trial and participating in the "mitigation" defense, Recer said, which allowed his lawyers to dig deep into his personal life and medical history. They convinced him that "his life is not over, he's still a Dad."

Asked why Quintero committed this unspeakable act, Recer said the bottom line was he was afraid, and reacted in the heat of a panic attack, responding to a "threat that didn't exist." Quintero has a chronic anxiety disorder, she said, and self-medicated with alcohol. (Quintero drank daily on a scale that could only be defined as gross alcoholism - up to a case of beer a day.) To that extent, she said ironically, one psych expert believed Quintero may not have shot Officer Johnson if he wasn't sober (!).

Recer also believes that a childhood brain trauma contributed to the circumstances, though she acknowledges many people were dismissive of the claim when it was raised by the defense. The frontal lobe injury, she said, made him cling to routines and caused him panic attacks when confronted with the unexpected. Then he found himself in a most unexpected, un-routine circumstance - arrested at a traffic stop for reasons he didn't understand, sitting in the back of a police car with a gun hidden in his belt - and she thinks the brain injuries inhibited his decision making functions during those critical moments.

Finally, Recer said some of the information that might have better explained Quintero's mindset was excluded or made unavailable because prosecutors went after his employer and family members on other charges, making them unavailable or unwilling to participate in Quintero's trial. However, she said over the three months leading up to the shooting Quintero had become increasingly paranoid and irrational, as well as fearful and distrustful of police, mostly from hearing second hand accounts of abuse or alleged corruption, and from his experience with police in Mexico.

None of this justifies Quintero's actions, Recer said, which is why his lawyers did not contest the elements of the offense and only argued over the correct sentence. But she believed all these were contributing factors; they were the reasons for what happened, even if no one can point to a single good reason for shooting a police officer in the back.

Given these "bad facts," what explains the verdict? Recer believes the case shows people in Harris County "are not as bloodthirsty as we're generally led to believe." In voir dire (jury selection), lawyers vetted 126 jurors, and by a 5-1 margin jurors were excluded because they refused to consider the death penalty compared to those who said they would refuse to consider life. She thinks Harris County DA's office "misunderstands its constituency," and that the jury they got was essentially representative of their jury pool and the citizenry at large.

She did say, however, that the Batson and Miller El cases from the US Supreme Court, which limited prosecutorial jury strikes based on race, kept the prosecution from using pre-emptory strikes as aggressively as in the past. So in that sense, I asked, is it fair to say you didn't win the case at jury selection but the prosecution lost it there? "Possibly," she nodded. "There were a lot of reasons, plus a lot of luck, but jury selection was big." The jury "was a necessary but not sufficient condition," she said, for getting the LWOP verdict.

Recer said they'd tried unsuccessfully to convince the state to agree to a plea and avoid an expensive, drawn-out and unnecessary trial. She was roundly criticized for releasing that information to the media, which reinforced her inclination, she said, simply to tell the press nothing at all. Recer said the proffer had been discussed in open court as well as written pleadings, and the fact it had been made wasn't privileged.

In any event, the time came when Quintero's lawyers got a meeting with the Harris County DA's Office, where they hoped to present most of the mitigation evidence that later went to the jury. She was amazed, she said, the state's lawyers didn't just shut up and listen to their opponent's case, even if they intended to go to trial. After all, the defense presentation amounted to "free discovery." But Chuck Rosenthal, himself representing the office at the meeting, was openly dismissive that anything could mitigate the crime, shutting down discussion before she'd even laid out her evidence. If he'd let the meeting continue, she said, at least they "would have known what's coming."

Recer believes the verdict reflects changing public attitudes generally toward the death penalty, as well as changes in the law. The Legislature's decision to make LWOP the only alternative to a death sentence played a big role in the jury's verdict, she thinks. But their experience in voir dire makes her believe the pendulum may be swinging away from more punitive public attitudes in the '90s.

One last thing I should mention: A recurring theme throughout our talk was Recer's displeasure with reporters covering the case. She said MSM journalism focuses solely on generating conflict to sell newspapers, so they wanted to portray every story as filled with conflict as possible. In fact, she said, Quintero's defense granted most of the facts alleged by the state, and there was little real disagreement. She considers the sentencing phase of the trial a function of "nonviolent conflict resolution" that becomes distorted by the media formula of conflicting "balanced" quotes on "opposing" sides. Everyone in the courtroom was really on the same side, she said. They all knew what Quintero did was wrong and were all seeking justice.

Photo via the Houston Chronicle/Billy Smith.