Monday, June 30, 2008

Fair death penalty administration and proposed Golden State innocence reforms

Since I've been writing more than usual in the last few days about the death penalty, innocence cases, and intersections between the two, it's worth pointing readers to a new report by the California Commision on the Fair Administration of Justice, a study group created to analyze the ramification of recent innocence cases regarding flaws in the justice system in the nation's most populous state. Their latest offering is on CA's administration of the death penalty (pdf).

Here are all the CCFAJ reports and recommendations so far:

Why not test DNA to corroborate capital innocence claim?

After more than 30 Texas exonerations based on DNA evidence in recent years, I can't understand how Grayson County prosecutors could even consider opposing DNA testing of old evidence before they put a defendant to death this summer who's claiming actual innocence.

Reacting to recent media reports, a witness has come forward who says death-row inmate Lester Bower's long-time innocence claims are true, and that her ex-boyfriend and three other men committed the quadruple murder of which he was convicted. This news arrives just weeks before Bower's scheduled execution on July 22. But inexplicably, the Grayson County DA opposes DNA testing that might corroborate this new testimony, preferring instead to push forward with the execution. Reports the Fort Worth Star Telegram ("Witness says condemned Arlington man not responsible for 1983 slayings," June 29):

Bower’s lawyers say they have identified the four men whom Pearl alleges to be the killers, have documented their long criminal records and have confirmed other key parts of her story. In recent months, a defense investigator has also located another witness, the wife of one of alleged accomplices who said she heard the four men discussing the killings. The names of the new suspects, though known to defense lawyers, have remained sealed by court order.

"I don’t want Mr. Bower to die for something that he didn’t do," said Pearl, who broke up with her boyfriend shortly after the slayings and remains fearful of him today. Since she signed the affidavit in 1989, her identity has been concealed by court order. "I know in my heart that he didn’t do it. I just could not in my conscience sit back and just go, 'Oh well, sorry.’

"If he would have gotten life in prison, I can’t sit here and honestly say I would have done something different. Life is what, 30 years in the state of Texas? But he got the death penalty, and there’s no getting out of that."

This past week, Bower’s lawyers filed a 65-page legal motion in Sherman’s 15th state District Court detailing the scenario developed after Pearl came forward. The petition asks state Judge Jim Fallon to delay Bower’s execution, vacate his conviction and death sentence, and conduct hearings on his innocence claim.

Because of the plodding appellate system in death penalty cases — Bower’s appeal languished in federal court alone for 16 years — and the shifting nature of capital punishment law, this is the first opportunity for a Texas court to seriously consider the merits of Bower’s innocence claim, his lawyers say. When Pearl first came forward, Texas law precluded state judges from considering evidence gathered more than 30 days after a conviction. The so-called 30-day rule is no longer in effect in Texas because federal judges have ruled that such post-conviction claims need to be adjudicated by the state.

"Whatever you think about the benefits of having capital punishment, no one could possibly argue that executing an innocent man is in the interests of the state, or our society," said Anthony Roth, one of Bower’s lawyers. "Our interests as lawyers and as people should be that our government, when in doubt, should not go forward with an execution. There is ample evidence to give people reasonable doubt about whether Les committed these murders. In my view, the evidence is compelling that he didn’t."

A Grayson County prosecutor, Karla Hackett, said Wednesday that the state will vigorously contest Bower’s innocence claim. Prosecutors also oppose a defense motion to have saliva, hair fibers and cigarette butts from the crime scene tested for DNA. Bower’s lawyers hope that the analysis will link one of the men accused by Pearl to the crime.

"There’s no way there is actual innocence here," Hackett said, citing the large amount of circumstantial evidence against Bower. "DNA is not going to make all that go away. It’s another delaying tactic. It’s normal. We expect it. There’s four dead men, and all the evidence points straight to Lester Leroy Bower Jr."

The science to match biological evidence through DNA simply didn't exist when a Grayson County jury convicted Bower in 1983. What could be the harm of testing the evidence?

Even if Bower was involved, why ignore evidence that might identify an accomplice? If the conviction was right, the state has nothing to fear from DNA testing. If they're wrong, why wouldn't they want to catch the mistake before the fellow's pending date with the lethal injection chamber?

Does the death penalty deter murder? How about gun control?

Two researchers whose work on death penalty deterrence was misapplied by opposing US Supreme Court Justices in a recent death penalty ruling teamed up today for a Washington Post editorial to clear up the confusion ("A death penalty puzzle," June 30).

The whole thing is well worth the read, but here's the money quote: "the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty."

RELATED (somewhat): The New York Times yesterday reacted to the Supreme Court's Heller ruling by interrogating evidence that gun control reduces crime. Similarly to the case for death penalty deterrence, the Times reports that "Many criminologists say cultural, economic and demographic factors play a big role in murder rates, and some say the number of guns and the number of murders may well be uncorrelated."

So there's no hard evidence killing people who kill reduces murder, and scant reason to think reducing gun availability does so. These results make you wonder exactly what if any public policies do evidence murder rate reductions?

Death row exoneration show flaws in sex offender registration concept

While we're on the subject of botched capital murder cases in Plano, I'd be remiss not to mention another recent exoneration from death row - Michael Blair, who was convicted of raping Ashley Estell in a case that spawned Texas' sex offender registration laws. The Texas Court of Criminal Appeals overturned his conviction last week based on an actual innocence claim. Reported the Dallas News ("Appeals court overturns Michael Blair's conviction in Ashley Estell case," June 26):

Steve Miers, Mr. Blair's defense attorney who handled the original trial, said he doubts his former client will be tried again in Ashley's death.

"In my opinion, that's not very likely, because exhibit number one is going to be the press release from Mr. Roach saying that there's another suspect," Mr. Miers said.

Collin County investigators found a "person of interest" who might have been connected to Ashley's death. That man could not be cleared as a suspect, but he died more than 10 years ago.

Hair evidence that supposedly connected Mr. Blair to Ashley's body has been disproved by DNA testing that was not available at the time of the trial. Additional DNA testing showed that there was no forensic evidence placing Mr. Blair at the crime scene or connecting him to Ashley.

Ashley's death prompted state Sen. Florence Shapiro, R-Plano, to create a series of stricter sex offender legislative changes, now known as "Ashley's Laws." She said in a written statement Wednesday that Mr. Blair's overturned conviction doesn't lessen the value of those laws.

"That does not diminish the fact that Ashley Estell was molested and murdered; and that Ashley's Laws ... stand as strong today as they ever have," Mrs. Shapiro said. "From 1995 until today, these laws forever changed the way the state of Texas deals with these heinous crimes."

Sen. Shapiro sounds a little defensive, and perhaps she should. She's correct that Blair's exoneration indeed does not "diminish the fact that Ashley Estell was molested and murdered." What it does do, however, is demonstrate how easily the harsh laws Sen. Shapiro spearheaded can be applied to the wrong person. (The man DNA identified as Estell's actual killer died ten years ago without being prosecuted for the crime.)

Three factors contributed to Michael Blair's wrongful conviction: Inaccurate eyewitness testimony, shoddy forensic science, and assumptions of guilt by police based on Blair's past conviction for sex crimes. The sex offender laws Shapiro spearheaded institutionalized such assumptions - encouraging instead of preventing them - making it more likely in such cases the wrong person gets convicted and the guilty man goes free.

Frankly, IMO the whole sex offender registry idea was always more a public relations stunt than a public safety strategy. The registries includes too many petty offenders, they tend to be filled with errors and perhaps most importantly from a public safety perspective, research shows that "community notification deters first-time sex offenses, but increases recidivism by registered offenders." (emphasis added)

Sen. Shapiro is correct that the registration laws she passed "forever changed the way the state of Texas deals with these heinous crimes," but not for the better, and not in ways that necessarily make anyone safer. Indeed, to the extent the laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception.

Courts won't examine alleged judicial and prosecutor misconduct in Charles Hood capital murder case

The execution for Charles Hood has been re-scheduled for September, but there's still little indication that the courts will look into allegations of serious judicial and prosecutorial misconduct before he's executed. The prosecutor and the judge in this case allegedly were having an affair during his capital murder trial. Reported AP:

Hood's attorneys contend his trial judge and one of the prosecutors in the case were involved in an improper and legally unethical romance at the time that tainted Hood's trial in 1990.

Retired Judge Verla Sue Holland and then-Collin County District Attorney Tom O'Connell have declined to address the allegations.

The Texas Court of Criminal Appeals, the state's highest criminal court and where Holland was a judge in the mid-1990s, rejected Hood's efforts to appeal on the grounds of the alleged relationship, citing procedural reasons for the rejection but not addressing the merits of the accusations.

"It is now apparent that the principals involved in the conduct that forms the basis of ... Hood's claim of judicial bias will remain mute until Mr. Hood is executed," Hood's attorneys said in their latest motion to the trial court and the appeals court seeking to block the setting of the date.

Lawyers A. Richard Ellis and Gregory Wiercioch noted both Holland and O'Connell "have been remarkably silent" and neither has denied the allegations "that they were involved in an intimate relationship ... that they themselves took extraordinary measures to keep secret."

They also accused the pair of refusing to cooperate with Hood's investigation.

"This strategy of silence is understandable — if ethically and morally indefensible," the prisoner's lawyers said.

It's nearly unfathomable to me that Hood's execution might occur without the prosecutor and judge in the case ever being required to answer for the record whether they had sexual relations during his trial. In a reader survey last week, 87% of Grits readers (205 out of 235 respondents) said that if the prosecutor and judge were having a sexual relationship, he deserves a new trial. Ineffably, though, the Texas Court of Criminal Appeals did not agree.

To me this isn't an issue of being for or against the death penalty, nor even a question of Hood's guilt or innocence. It's more about preserving a semblance of integrity for the justice system. If the state's willing to enact its harshest punishment in such a case without even examining possible collusion by the judge and prosecutor (they don't call it "pillow talk" for nothing), it all but destroys the system's public credibility. It's one thing for the affair to have occurred at the time - that would represent mere misconduct by two individuals. But it's quite another for appellate courts to know of the allegations after the fact and still allow the execution to move forward without requiring they be vetted. That seems to put an official stamp on the repugnant idea that such conflict of interest could be tolerated.

Finally, if the affair is ever proven - and the principals do not deny it happened, they just don't confirm it - IMO Judge Holland and Tom O'Connell deserve at a minimum to be ridden out of the State Bar on a rail. No one should be licensed to practice law who conceals such information in a death penalty case.

RELATED: See Rick Casey's column on the Hood case, and from the Dallas News, see "Ethics questions in Charles Dean Hood case," in which the editorial board opines that:

The public deserves more than avoidance. This is more than a question of guilt or innocence of one man. Rather, the judiciary must recognize the cloud of suspicion that hovers and the need to clear the air.

Failure to do so risks casting doubt on the quality of justice for the entire period in which Tom O'Connell was DA and Sue Holland presided over cases brought by his office. The integrity of other cases is drawn into question, and that is an affront to a host of crime victims.

Sunday, June 29, 2008

Hearing sought in Lubbock for posthumous exoneration based on DNA

The wave of DNA exonerations continues around the state at an impressive clip, but the latest instance comes too late to bring justice for the wrongly convicted man. A Lubbock man convicted of rape in 1986 died in prison while serving the sentence for an apparent wrongful conviction. He's now been excluded as a suspect by DNA posthumously for the crime for which he was convicted. Reports AP:
Attorneys want a court to hold a hearing that could lead to the posthumous exoneration of a man who died in prison while serving a 25-year sentence for rape.

If a court finds Timothy Brian Cole was wrongfully convicted, his would be the first posthumous DNA exoneration in Texas, said Jeff Blackburn, Innocence Project of Texas chief counsel.

Lawyers with the Innocence Project filed a petition Friday asking the 99th District Court in Lubbock for an inquiry into Cole's conviction.

The court filing says evidence in the case had been preserved and was retested. Blackburn said the Lubbock County district attorney confirmed this week to him that DNA testing of a semen sample excluded Cole and matched another man serving time for rape.

The man Innocence Project attorneys believe committed the rape for which Cole was convicted has written letters saying he was the rapist.

The Lubbock Avalanche Journal just began a three part series on Cole's case (see part one here), detailing how flawed evidence was allowed to be submitted at trial, only to be declared harmless error later on by Texas appeals courts. Reported the Avalanche Journal:

The victim who accused Timothy Brian Cole never saw Johnson's photo or looked at him in a lineup. Tim's defense attorney, Mike Brown, could not push during Tim's trial his theory that Johnson had committed the March 1985 rape.

Brown carried the theory through the appeals process. He argued the jury should have been allowed to hear the striking similarities between the March rape and another attack in the same parking lot in February.

The woman was taken by an attacker fitting the same description and following the same methods.

The victim never identified Tim, and fingerprints recovered from the earlier victim's car didn't match. The circumstances should have raised doubt Tim was involved in almost the same crime more than a month later, Brown argued.

He complained he could not cross-examine the forensic work in the case, either, since the chemist who performed the test sent a subordinate working off of notes to the trial.

Tim lost his immediate appeal in Amarillo. But a higher court chose to take up the issue in 1990, and agreed years later with Brown's argument on the forensic evidence. The case shook up trial law across the state but the victory proved bittersweet.

Tim's fight for innocence stopped.

Yes, the trial court had erred in admitting the evidence, the appeals court ruled, remanding the case to a lower court. But the error in forensics testimony was not significant enough to warrant a new trial, the appeals court found. The court also found the fingerprint evidence collected too weak to matter to a jury.

They had won the battle and lost the war.

Now DNA evidence and confessions by the man whose DNA ultimately matched have forced authorities to take another look, though it's too late to help Tim Cole. Because he is dead, the usual appeals processes are closed to Cole's family who're still seeking to clear his name. The Innocence Project of Texas (IPOT) on Friday requested a posthumous "court of inquiry" into the wrongful conviction. (Conflict alert: I'm a paid policy consultant for IPOT, though I have nothing to do with their legal cases.) IPOT argued in their petition that:
This is an extraordinary case that demands an extraordinary remedy. Because Mr. Cole is dead, he cannot assert his innocence through the normal procedures allowed by law. Despite that, his family- who are as much victims of the original crime as anyone in this matter, just as he was- has a right to have his name formally cleared in a court of law.
The court of inquiry idea seems like a useful approach to posthumous exonerations. There needs to be some way to manage the issue of posthumous exonerations, most obviously for death penalty cases but also in many other instances like the Timothy Cole case. Dying in prison over a crime you didn't commit: What a tragedy

Should states' anti-drunk driving campaign shift to civil side of the courthouse?

More on the question of whether criminal law enforcement is the best way to reduce drunk driving:

The missus just read yesterday's post describing the legal blawgger debate over whether DWI should be criminalized, coming up with what I thought was a clever solution. She thinks the legal tactics to reduce DWI should shift from the criminal to the civil side of the courthouse, using civil litigation to promote and finance anti-drunk driving strategies.

The massive TV ad campaigns that helped drive public opinion so heavily against smoking in the last decade, she pointed out, were financed with billions in civil judgments won by the states in compensation for indigent medical costs. The same could happen with liquor, she suggested.

Under this scheme, states or the courts could allow lawsuits to go forward against alcohol manufacturers just like they did against Big Tobacco. The money would be used to finance prevention schemes, TV advertising, expanded treatment options and other anti-alcoholism measures. Coupled with a TV advertising ban similar to the one for cigarettes, such a strategy would aim not to punish individuals but to change the overall culture, she said, financing the idea with profits from the product that's causing the problem.

Kathy's a pretty smart gal, huh? Whaddya think of her idea?

MORE: See Grits' earlier post, plus earlier discussions from Mark Bennett here, here, and here; from Shawn Matlock, from WindyPundit here and here, and also from Scott Greenfield.

Scheme to finance county jail with immigration detainees puts future Montgomery County finances at risk

Texas counties hoping that federal immigration detention dollars will subsidize local jail building need to pay closer attention to what's happening in national politics, where both presidential candidates strongly support comprehensive immigration reform. In particular, if elected President, John McCain says he will make changing US immigration policies his top priority, according to headlines today. Said McCain:
"It will be my top priority yesterday, today and tomorrow," drawing sustained applause.

"There are 12 million people here and they are here illegally but they are God's children, they are God's children," McCain said, pounding the podium for emphasis as he repeated the words.
The apparent inevitability of an immigration reformer assuming the presidential mantle makes recent financial decisions by some counties about their jails appear short-sighted, perhaps even doomed. Take Montgomery County, which will open a new privately operated jail in August. According to an editorial in the Montgomery County Courier:
county commissioners decided to build a new 1,100-bed facility in 2006, which essentially will double the number of jail beds in Montgomery County when the new facility opens Aug. 1.

The county decided on creative ways to pay for the construction of the jail annex and its operations, which will spare taxpayers additional costs. A nonprofit organization, Montgomery County Jail Financing Corp., was formed to fund the $42 million project. Commissioners make up the members of the corporation, which will build the jail through tax-exempt bonds and lease the facility back to the county.

In turn, the county will pay for the facility by housing federal inmates from the U.S. Marshal’s Service and Immigration and Customs Enforcement at an estimated price of $55 per day per inmate. At 70 percent capacity, the jail annex should pay for itself, according to county officials.

The combination of housing federal inmates and leaving enough bed space for local inmates helps the county pay for the facilities while creating bed space for local offenders. County officials say the contracts should pay for the facility, which will meet the county’s needs over the next 10 to 20 years.

The contracts with the federal agencies are expected to cover operational costs, insurance, $3.4 million in debt annually, as well as the contract with the management firm.

The GEO Group, a private security firm specializing in correctional facilities, will run operations at the annex.

A few years ago, commissioners considered contracting with The GEO Group to operate the existing jail, or at least its 400-bed wing that opened in 2005. However, Sheriff Tommy Gage developed a plan that enabled the county to hire more jail workers, which saved the county money compared with contracting with GEO. The county also contracted with the federal agencies to house nearly 150 of their inmates at the jail wing, enabling the county to bring in around $2 million annually and offset most of the costs of operating the jail wing.

So Montgomery County gets a jail on the cheap only if federal immigration detainees keep the new facility 70% full. If immigration reform passes, though, there's a good chance the recent massive expansion of immigration facilities will cease or even joltingly retract. The demand for new beds is caused by policies both presidential candidates now promise to change. I was quoted recently in the Nacogdoches Daily Sentinel making the same point about a proposed facility there:

Scott Henson, a public policy researcher who authors the Grits for Breakfast blog about Texas criminal justice, said the private prison industry as a whole faces an uncertain future in the U.S. The demand for prison beds to house immigrant detainees may decline with changes to federal policy dictated by the next president, he said.

"The rise in the need and demand for immigration beds is a result of very specific policies," Henson said. "Expansion in cases for Texas U.S. Attorneys in the last 3 years is incredibly dramatic. That was a choice. They could choose not to do it when the next president gets in.

"Who's the next president going to be, McCain or Obama? Both of them favor comprehensive immigration reform. Do you think their attorneys general are going to continue the high rates of prosecution? Probably not. Do you think that once we have comprehensive immigration reform, immigration detention facilities will be a viable investment? Probably not."

Immigration detention rose quickly and dramatically in recent years, but the ascension of a new president, a new crop of US Attorneys and the passage of comprehensive immigration reform could turn that trend around in a heartbeat. Under a President McCain or Obama, in 2-3 years time, who will be surprised if Montgomery County's projected $2 million profit on the jail turns into a $4 million annual debt payment for which the county is on the hook?

There's no free lunch in economics, and as it turns out that includes jail economics, too.

Saturday, June 28, 2008

DWI: A social problem masquerading as a crime wave?

A fascinating discussion is underway in the legal blawgosphere regarding DWI, the threat it creates, and whether criminal sanctions are an appropriate response.

Our pal Mark Bennett in Houston began the fray with a discussion of when it's appropriate to refuse a breathalyzer test, concluding there are only two circumstances when you should say "No": When you're guilty, and when you're innocent. (This advice, I should mention, is not universally popular, at least among the folks trying to score convictions.) The main reason to refuse if you're sober, says Bennett, is the possibility of false positives: The error rate on the commonly used Intoxilyzer 5000, he says, is an astonishing plus or minus 25%! That would make breath tests one of the least reliable of the commonly used forensic tests.

Going further in another post, Bennett (accurately if controversially) observed that in the vast, vast majority of cases DWI is a victimless crime. Fort Worth attorney Shawn Matlock really threw down the gauntlet though with the clam that DWI shouldn't be a "crime" at all. As WindyPundit summarized Matlock's position, "when someone gets a DUI, nearly all the legal action is about suspending their license and taking their money. Why not just finish the process and remove the criminal aspect completely?"

Scott Greenfield chimed in to say he thinks Matlock went too far, that DWI should be a crime. But I can certainly see the reasoning behind Matlock's argument, at least for criminalizing DWI only after multiple offenses or if injury or property damage result. After all, non-drunk drivers kill more people than drunk ones; not every risk denotes a criminal act. The current approach treats defendants as cash cows with little regard for prevention. Why not just do away with the pretense?

Windy and Bennett each followed up with statistical explications of the risks from DWI, though for reasons discussed in the comments at Bennett's shop, I don't think they've quite yet identified the data needed to get to a reliable number. Windy concludes from the exercise, "So, don't drive drunk, and don't let friends drive drunk. But if you or your friend happen to drive drunk one night, don't sweat it too much." (!)

This discussion raises a number of fascinating questions to which I don't know the answers (and probably no one does). For starters, what options besides criminal sanctions might reduce DWI, potentially at a lesser cost? How about expanding public transportation? Or maybe taxing alcohol to fund a program of rides home from bars? As with cigarette smoking (which has declined more than drunk driving over a comparable period), TV ads might be more effective at reducing drunk driving than anything a cop can do.

Another question: How much do criminal sanctions deter drunk driving? Punishment only prevents wrongdoing if its certainly applied. In the case of drunk driving, where Bennett estimates officers arrest one drunk driver out of every 114 trips, most drunk driving brings no penalty and thus likely little deterrent. (As Matlock emphasizes, most offenders are more worried about their license suspension than any criminal culpability.)

How much do current DWI laws cost to enforce? It's hard to tell because costs are divvied up among all sorts of state, county and municipal jurisdictions, with some occasional federal money thrown in to boot. (A back of the napkin estimate indicates Texas spends between $80-100 million per year on prison for felony DWIs alone; most DWIs, however, are misdemeanors handled at the county level.) Given the limited deterrence factor of one arrest per 114 drunken trips, would we see a greater reduction in drunk driving if the same resources went to non-punitive means of reducing drunk driving? Maybe.

If DWI is worth deterring as a public policy then it's worth paying to deter. Indeed, we're already paying some unknown amount on a pure enforcement approach that yields limited results. Is criminalizing DWI the best way to go, or does the tactic soak up money that could be used for more effective approaches?

Friday, June 27, 2008

CPS Chief Abandons Ship; 14-day hearing transcrips from Polygamist Roundup now online

In the wake of the botched Great Eldorado Polygamist Roundup, the head of Texas Department of Family and Protective Services, Cary Cockerell, has announced he would retire at the end of the summer. Some legislative committee needs to hold a hearing before he leaves and get Mr. Cockerell on the record about what went wrong with the YFZ Ranch raid.

Meanwhile, the blogger at I Perceive has posted the transcripts from the 14-day hearings for YFZ Ranch kids, see here and here.

Indeed, I Perceive has been keeping much closer track of the case than I have in recent weeks, and those tracking the story should check there regularly. And as always, The Common Room continues to follow the story closely.

New local websites explain "what to expect from jail"

The group Jailmedia has put up several new websites have gone up that include firsthand accounts about various aspects of jail life in Texas' largest county jails:

Why not Austin or El Paso, one wonders? Perhaps down the line. The goal of the websites are to "help the potential inmate or their family and loved ones know what to expect from jail." This seems like an interesting and useful project if it's done consistently and they keep the sites up.

Delay in Waller's DNA testing kept innocent man in prison, let guilty one go free

It turns out that the actual rapist for whose 1992 crime Patrick Waller was wrongly convicted went free earlier this year because former Dallas District Attorney Bill Hill delayed DNA testing for too long. According to the Dallas News, Waller's defense attorney

said prosecutors under Mr. Hill opposed both [of Waller's] requests for testing. One prosecutor testified at a hearing that she would prosecute him again even if the DNA testing cleared him. Two trial judges and two state appeals courts agreed that testing should be denied.

Craig Watkins, who succeeded Mr. Hill as district attorney in January 2007, granted the DNA test to Mr. Waller. The results came back six months ago, but the tests did not fully exonerate him then because the victim was sexually assaulted by two men.

Early this year, DNA from the case matched DNA of a 38-year-old Dallas man serving time for burglary that occurred months after the abduction, Mr. Ware said. DNA connected Byron Demond Bell, the man who was serving a 45-year-sentence for burglary of a residence that occurred months after the abduction, Mr. Ware said. In April, DNA taken from Mr. Bell, now 38, to double-check the hit was once again a match.

Mr. Udashen said Mr. Hill's office paved the way for Mr. Bell to go free.

"Had they done a DNA test back in 2001 or 2005, they would have matched it up to Bell, and Bell would have never been paroled," Mr. Udashen said.

The DA, two trial judges and two appeals courts denied Waller DNA testing, but he turned out to be actually innocent. What does that tell you about the quality of those entities' vetting past convictions for possible innocence claims? Either the courts just aren't taking these cases seriously, or there's some legal standard that's not strict enough to cause them to act when they should.

Hopefully DAs in other jurisdictions who've been opposing post-conviction DNA analysis will take note and begin agreeing to more tests. It's not just a function of freeing the innocent, as important as that is. Waller's case shows that delays in post-conviction testing can also serve to let the guilty go free.

We also learn a little more in the Dallas News story about the witness identifications (four of them) that wrongly accused Waller:

Mr. Waller was arrested after a Dallas police officer selected him from a photo lineup as one of two men who fled from police in the West End days after the robbery.

At trial, prosecutors presented the identification of Mr. Waller by three of the victims and the police officer. They also introduced testimony from a forensic analyst who said Mr. Waller's blood type was consistent with that of the rapist. No DNA testing was performed at that time.

A Dallas County jury convicted Mr. Waller of aggravated robbery in December 1992 and sentenced him to life in prison. Mr. Waller then pleaded guilty to two aggravated kidnapping charges in exchange for dual, 30-year prison terms.

This account confirms my sense that police may have biased the witness identifications based on an assumption the police officer ID'd the right guy. He didn't, of course, but the fact that an officer made the first identification means investigators probably were dismissive of any notion Waller didn't do it. Add three corroborating eyewitnesses mistakenly identifying him, sprinkle in some shoddy forensic science, and Waller's case becomes a near perfect recipe for wrongful conviction.

A prison so nice people "want to break in"?

In Nacogdoches the Utah-based private prison firm Management and Training Corporation hopes to construct a new immigration detention facility reports the Daily Sentinel ("Federal prison proposed for Nacogdoches," June 26). As usual, boosters portray the project as all but a dream come true, both boon to the economy and source of civic pride for the town.

The President of the Nacogdoches Economic Development Corporation actually had the nerve to tell the paper, "Once they see this facility, no one's going to want to break out. They're going to want to break in." Hmmmm. Wanna bet? Reporter Matthew Stoff contacted me for the story and also Texas Prison Bidness blogger Bob Libal, giving the blogosphere a particularly strong voice in the article. Reported the Sentinel:

MTC, which operates five other prisons in Texas, has been criticized for its operation of several facilities, especially an immigrant detention facility in Raymondville, known as "Tent City" because of its prefabricated, windowless appearance.

"MTC is certainly a company that has run into numerous problems and controversies over the years," said Bob Libal, who is the Texas coordinator for the private prison watchdog group, Grassroots Leadership, and who co-authors Texas Prison Bid'ness, a blog that tracks issues related to Texas prisons. "The Tent City example is certainly an egregious one. There have been maggots in the food at Tent City ... Really terrible conditions you hear about in some of these private prisons."

Libal's blog also recorded federal charges filed against four MTC employees in Brownsville for apparently smuggling illegal immigrants using a company van.

Bell responded to the criticism, saying the company is committed to meeting federal standards for prisons. "No one can make any guarantees that something won't draw criticism, but overall, our practice is to run a good, secure correctional facility to ensure that we meet compliance of the contract." Some oversight by federal employees would provide an additional assurance of quality, Bell said.

Scott Henson, a public policy researcher who authors the Grits for Breakfast blog about Texas criminal justice, said the private prison industry as a whole faces an uncertain future in the U.S. The demand for prison beds to house immigrant detainees may decline with changes to federal policy dictated by the next president, he said.

"The rise in the need and demand for immigration beds is a result of very specific policies," Henson said. "Expansion in cases for Texas U.S. Attorneys in the last 3 years is incredibly dramatic. That was a choice. They could choose not to do it when the next president gets in.

"Who's the next president going to be, McCain or Obama? Both of them favor comprehensive immigration reform. Do you think their attorneys general are going to continue the high rates of prosecution? Probably not. Do you think that once we have comprehensive immigration reform, immigration detention facilities will be a viable investment? Probably not."

Henson also said the prison could hurt Nacogdoches' tourism and its efforts to recruit retirees.

"When Nacogdoches gets in the newspaper, I know that the chamber of commerce would prefer that it not be because prisoners had maggots in their food," he said. "One nasty story in the Dallas news about mistreatment there, and all those Dallas retirees all of a sudden say, 'Well, maybe I'll go to Tyler.'"

Dr. Gregory Hooks, a sociologist at Washington State University, said his research casts further doubt on claims that prison construction can bolster economic development. His paper, published in Social Science Quarterly in 2004, examined every prison in the U.S. and its impact on surrounding counties.

"We find no evidence that prison expansion has stimulated economic growth. In fact, we provide evidence that prison construction has impeded economic growth in rural counties that have been growing at a slow place," the paper concluded.

SCOTUS worried about wrong 'spectacle' when prosecuting mentally ill defendants

Having focused so much on the Rothgery and Kennedy cases in recent days, I failed to update readers on the outcome of another SCOTUS case I've been waiting on, Indiana v. Edwards. The US Supreme Court last week declared by a 7-2 majority (see the opinion) that mentally ill defendants can be denied the right to represent themselves in court.

Essentially SCOTUS said that just because someone is "competent" to stand trial doesn't mean they're competent to exercise their other rights as a free person under the US Constitution. In other words, it's possible to be competent enough to have your liberty curtailed, but simultaneously incompetent to be the person who explains why that shouldn't happen.

According to the New York Times, Justice Stephen Breyer's decision emphasized the "spectacle" of letting mentally ill people pontificate on their own behalf in open court:
Noting that the court has referred to the right to self-representation as an aspect of individual dignity, Justice Breyer said dignity was lacking in the “spectacle that could well result” from a mentally ill defendant’s efforts, which he said were “at least as likely to prove humiliating as ennobling.”
Well, Justice Breyer - what about the "spectacle" of filling up our prisons with mentally ill people so deranged that merely allowing them to articulate their own defense to charges against them is too "humiliating" for the courts to bear?

Is it any less a spectacle if we just lock up mentally ill people in prison en masse without the trial judge having to listen to them personally? Why aren't you humilated by the fact that we've all but criminalized mental illness among the indigent and treat medical conditions with prison time?

In Texas, three of ten inmates in state prisons are prior clients of the state's indigent mental health system, and defendants declared incompetent routinely sit in jail for weeks or months waiting for state hospital beds to open up to do "competency restoration." I consider that unhappy circumstance a more egregious "spectacle" than the efforts (even pitiful ones) by a mentally challenged person to defend themselves in court.

Justice Scalia's retort to Breyer was more philosophical, declaring that the dignity at stake is not whether a defendant makes "a fool of himself by presenting an amateurish or even incoherent defense. Rather, the dignity at issue is the supreme human dignity of being a master of one's fate rather than a ward of the state -- the dignity of individual choice." There is a difference, in other words, between "dignity" and "decorum."

This was an activist decision by judges for judges to make their jobs and lives easier, leaving for some other day any latent concern for either the rights of mentally ill people or the righteousness and public policy consequences of using the criminal justice system as de facto asylums. To that extent, as Justice Alito said in his dissent, “the court’s opinion does not even have the questionable virtue of being politically correct.” Again from the Times:

The decision, Indiana v. Edwards, No. 07-208, drew a vigorous dissenting opinion from Justice Antonin Scalia, joined by Justice Clarence Thomas. Justice Scalia said the treatment Mr. Edwards received in being denied to present the defense of his choice “seems to me the epitome of both actual and apparent unfairness.”

The only reason the court has previously accepted as valid for denying self-representation, Justice Scalia said, was a threat to the orderliness of the trial. But Mr. Edwards was “respectful and compliant” and did not even have the chance to try representing himself ...

Justice Scalia said that “trial judges will have every incentive to make their lives easier” by appointing lawyers rather than giving mentally ill defendants a chance to proceed on their own.

Finally, this is another instance where the court declined to decide the case in a way that's meaningful for practitioners, ensuring, as the Times put it, there will be "sequels." Again from Scalia:
Today’s holding is extraordinarily vague. The Court does not accept Indiana’s position that self-representation can be denied ‘where the defendant cannot communicate coherently with the court or a jury.'…It does not even hold that Edwards was properly denied his right to represent himself. It holds only that lack of mental competence can under some circumstances form a basis for denying the right to proceed pro se…We will probably give some meaning to this holding in the future, but the indeterminancy makes a bad holding worse.
So SCOTUS has said the standard for competency is NOT the standard for self representation, but declined to articulate a new standard for how to determine when someone can't self-represent. That's decidedly unhelpful - or rather, it's helpful only to trial judges annoyed by pro se defendants who now can choose any reason they like to deny mentally ill defendants' self representation.

Via Prevention Not Punishment. See prior Grits coverage and also commentary from Simple Justice and SCOTUSBlog.

Thursday, June 26, 2008

BREAKING NEWS: Patrick Waller latest Dallas DNA exoneree; case shows need for 'blind' administrators for police lineups

Hot of the presses, the Dallas County District Attorney's Office issued a press release at 8:22 p.m. this evening announcing yet another innocent Dallas man has been exonerated by DNA evidence and will soon be released 16 years after his wrongful conviction and incarceration. Here's the text:
Patrick Waller is Dallas County’s 18th Wrongfully Convicted Citizen; DNA results clear him of 1992 robbery and kidnapping convictions

(DALLAS – June 26, 2008) – Today, the Dallas County District Attorney’s (DA) Office announced that Patrick Waller, 38, is the County’s latest wrongfully convicted citizen. Waller, who is represented by Gary Udashen, has spent the past 16 years in prison and was serving a life sentence for aggravated robbery with a deadly weapon, along with two 30-year sentences for aggravated kidnapping which arose from the same incident. He is the 18th person in Dallas County cleared of crimes by DNA evidence.

“Technological advances in science have proved another Dallas County man’s innocence and identified the actual perpetrator, but because the statute of limitations has run on these offenses, the State cannot prosecute the two men who did this 16 years ago,” said Dallas County District Attorney Craig Watkins. “This is a perfect example of why I plan to address the current statute of limitations on certain offenses during the 2009 Legislative session in Austin. It is a gross understatement to say that we are displeased with the fact that we cannot seek justice for the victims in this case because of the laws back in 1992.”

On the night of March 25, 1992, a man and his wife were abducted from the West End in downtown Dallas at gunpoint by two men. This occurred as the couple was returning to their parked vehicle. The two abductors kidnapped the couple in their vehicle, forced one of the victims to drive to an ATM in the Oak Cliff community of Dallas and then forced them to withdraw the maximum amount of cash that could be withdrawn from the bank account in one transaction, which was $200. The two abductors then made them drive to an abandoned house. The two men forced the couple inside the house at gunpoint, made them disrobe, tied them up in the basement and sexually assaulted the woman.

Testimony from Mr. Waller’s trial reveals that sometime during this episode, another couple drove up to the abandoned house and the man got out of the vehicle to relieve himself. One of the abductors, identified in court during the 1992 trial as Waller, approached the couple, forced them inside the house at gunpoint and assaulted them with his Tech 9 firearm. The second couple also was forced to disrobe and tied up in the basement with the first couple. The woman from the second couple made a remark about her feminine hygiene product and, at about the same time, a DISD security officer drove past the house — both of which, apparently contributed to scaring the two abductors off without sexually assaulting the second woman. One abductor left the scene in the first couple’s vehicle and the other abductor left in the second couple’s vehicle.

Approximately one week later, Waller’s photo was put in a photo line-up by the Dallas Police Department for reasons that are unclear and three of the four victims picked him out as one of the abductors, resulting in Waller’s arrest. The testimony at trial indicates that the fourth victim (the woman who was sexually assaulted) later picked him out of a live line-up.

There was never a second suspect. Waller testified at his trial that he had nothing to do with the offense and knew nothing about it. He also presented alibi witnesses; however, the jury convicted him and sentenced him to life in prison for aggravated robbery with a deadly weapon.

As part of the Conviction Integrity Unit’s DNA Review initiative, the DNA from the sexual assault kit in Waller’s case was tested late last year (2007). Testing was paid for by the Innocence Project of Texas. The DNA test results concluded that there was only one male profile present and that profile was not from Patrick Waller. During the DA’s investigation, the Conviction Integrity Unit ran the unknown male profile through the Texas Department of Public Safety’s (DPS) CODIS Convicted Offender File, which is a national database of DNA profiles from convicted offenders.

Through CODIS, the unknown male profile came back as a match to Byron Bell, who when confronted about the 1992 crime, confessed to committing the offense. Bell said that his co-actor in that offense was, a 19-year-old (at the time of the offense) African-American male named Mondo Green, whom he had not seen since the night of the offense. Bell later passed a polygraph test as to the identity of his co-actor. Bell also said that he had a 9 mm Glock that night but never carried or used a Tech 9 and did not remember Mondo having one.

The DA’s Office, working with the Dallas Police Department in reinvestigating the case, established that a man by the name of Lemondo Simmons had been associated with the address where Bell said Mondo Green’s grandmother lived. After Bell passed a polygraph as to the identity of his co-actor, they found Simmons and the State subpoenaed him to appear before the grand jury on June 25, 2008.

Because grand jury proceedings are secret and cannot be disclosed, the DA’s Office is prohibited from releasing any of the testimony from that hearing without a court order. However, it is confirmed by the DA’s Office that Mr. Simmons, who unfortunately cannot be prosecuted for the crimes because of the expired statute of limitations, confessed to committing the offense with Bell in 1992.

A previous request by Waller for post-conviction DNA testing was denied prior to District Attorney Craig Watkins’ administration. Records indicate Waller was the third inmate from Dallas County to file a Chapter 64 motion for post-conviction DNA testing after the statute was passed in 2001.
This one blows my mind: In this case four different witnesses wrongly identified the defendant as the perpetrator - three in photo arrays and one in a live lineup - but we now know they were all unquestionably wrong!

Those kind of seemingly unfathomable results make me think about research I've been reading recently on "The Role of Interviewer Behavior in Eyewitness Suggestibility" in prep for my new consulting gig with the Innocence Project of Texas. Unless Waller was simply a dead ringer for one of the actual perpetrators, which can certainly happen, it's hard not to think that biased interviewers somehow influenced these eyewitness IDs, and that the lack of double-blind identification procedures may have contributed to Waller's false conviction.

Faulty eyewitness identifications are the leading cause of wrongful convictions nationwide, but I've never before heard of a case where four different witnesses misidentified the same man in varying versions of police lineups!

I'd like to see police departments shift to these best practices regarding eyewitness ID of their own accord, but since the likelihood of that happening en masse is slim to none, it's definitely time for the Lege to require them to do so in 2009. I'm sick of reading these exoneration stories only to discover that the police practices causing the false conviction are still common as dirt today.

You don't suppose Judge James Nowlin is a UT alum?

My esteem for US District Judge James Nowlin increased after reading this recent order (pdf), found via the inestimable Eugene Volokh in a post from earlier this month. Wrote Nowlin:
Apparently, the parties are unable to agree if the deposition of Wal-Mart's corporate representative should occur in San Antonio, Texas or in Bentonville, Arkansas.

The Court is sympathetic with the Defendant's argument. Surely Defendant's corporate representative, a resident of Arkansas, would feel great humiliation by being forced to enter the home state of the University of Texas, where the legendary Texas Longhorns have wrought havoc on the Arkansas Razorbacks with an impressive 55-21 all-time series record.

On the other hand, the Court is sympathetic with Plaintiff's position. Plaintiffs might enter Arkansas with a bit of trepidation oas many residents of Arkansas are still seeking retribution for the "Game of the Century" in which James Street and Darrell Royal stunned the Razorbacks by winning the 1969 National Championship.

Because the Court is sympathetic to both parties' positions, it has found a neutral site intended to avoid both humiliation and trepidation of retribution.

ACCORDINGLY, IT IS ORDERED that unless the parties agree otherwise, the deposition of Defendant's corporate representative shall occur at 9 AM on June 11, 2008 on the steps of the Texarkana Federal Building, 500 State Line Ave, TX/AR 71854.

IT IS FURTHER ORDERED that each party is to remain on his or her respective side of the state line.
Soooowweeee! (UT fans, see the footnotes in the order for an added bonus.) Volokh didn't say, but how much do you want to bet the parties came to an agreement besides holding the deposition on the steps of the Texarkana Courthouse?! Both the content and the Judge's tactic tickled my funny bone.

Prof. Volokh followed up by posting a nice adumbration by Brian Kalt of the complexities of operating a Texarkana federal courthouse that straddles state lines titled "Article III, Congress, and the Texarkana Courthouse." Interesting stuff; well worth a read.

For Michael. ;)

Rothgery ruling "trumped" counties leeway to delay counsel appointments

From Texas Lawyer, more clues about the impact of the recent Supreme Court ruling in Rothgery and whether it will require Texas counties to appoint counsel earlier in the process ("Released defendants to get speedier access to counsel," June 26):
Wesley Shackelford, special counsel for the Texas Task Force on Indigent Defense, says the Supreme Court's ruling in Rothgery defines when "adversarial judicial proceedings" are initiated under Texas law -- an issue Shackelford says has not been totally clear since the Texas Legislature passed the Fair Defense Act in 2001.

Shannon Edmonds, the Texas District and County Attorneys Association's governmental affairs director, says the Legislature crafted a compromise in the 2001 legislation to provide that if an indigent defendant was released prior to having an attorney appointed, the appointment of counsel "is not required until the defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first." The Legislature included that language in Texas Code of Criminal Procedure Article 1.051(j), he says.

"Now the Supreme Court has trumped that compromise or overturned it," Edmonds says.

Andrea Marsh, executive director of the Texas Fair Defense Project and one of the attorneys who represents Walter Rothgery, says she doesn't view the language in Article 1.051(j) as a compromise. But Marsh says many people have interpreted the language of that statute to mean that indigent defendants who bonded out of jail did not need lawyers appointed as quickly as other defendants.

As Shackelford points out, "That's been the interpretation in most jurisdictions."

Marsh says the Rothgery ruling now makes it clear that the timeline for appointing counsel is the same for indigent defendants who are released as for those who remain in jail.

Under Code of Criminal Procedure Article 1.051(c), an indigent defendant in a county with a population of 250,000 or more is entitled to have an attorney appointed by the end of the first working day after he or she requests the appointment of counsel. An indigent defendant in a smaller county is entitled to have an attorney appointed not later than the end of the third working day after requesting an attorney.
Shannon Edmonds said SCOTUS "trumped" or "overturned" the compromise on when counsel must be appointed, but from my perspective they merely clarified it. SCOTUS ruled that "adversarial proceedings" begin with the article 15.17 bail hearing, so if under Texas law counsel must be appointed "when adversarial judicial proceedings are initiated," the Supreme Court just told us exactly when that is. By this logic, Texas law would require appointment of counsel for indigent defendants who're out on bail and who request a lawyer within a 1-3 day timeframe, depending on the size of the county. (Some counties already do this; most don't.)

So even though SCOTUS didn't stipulate counsel be appointed earlier because the right to counsel attaches at the bail hearing, that appears to be the net result of their ruling under Texas law.

Prior related Grits posts:

How many innocents in prison: Exonerations make up 3% of Texas DNA case resolutions

It's hard to say if the data reflect a rate or percentage of wrongful convictions, but more than 3% of criminal cases solved by DNA since Texas began using the forensic technology have resulted in overturned convictions.

Somehow I'd missed the news announced earlier this year that Texas solved its 1,000th criminal case using DNA. OTOH, Texas has witnessed 33 exonerations of innocent men (mostly in sexual assault cases) using DNA evidence.

DNA exists in only about 10% of violent crimes, so the group is a pretty random sample compared to the larger criminal class. Might the rate of exonerations to convictions based on DNA give a potential wrongful conviction rate? There are a lot of factors going into both convictions and exonerations, so I'm not sure the comparison is entirely valid - too many variables. But at least it adds another data point toward the discussion about how many Texas prisoners may be actually innocent.

I'd noted earlier that death row exonerations occurred at a rate of 1.52% in Texas since the death penalty was reinstated in 1982. The percentage of DNA cases solved resulting in exonerations, however, doubles that number.

So how many innocent people are actually in Texas prisons? If it's 1.52% (the exoneration rate from death row), that would mean more than 2,300 innocent people are locked up in Texas for various crimes. If it's 3.3% (based on the DNA exonerations), the number would top 5,000.

By contrast, the lowest estimate I've seen for the rate at which innocents are convicted - the unlikely low figure of .027% cited by Antonin Scalia - would still mean more than 400 innocent people are locked up in Texas prisons.

Increasingly I'm coming to believe the number's a lot higher than most people working in the system would feel comfortable admitting.

Wednesday, June 25, 2008

A possible explanation for Rothgery confusion

Folks are still trying to figure out what the Rothgery case decided by SCOTUS this week really means. A perhaps helpful insight comes from the blogger at South Carolina Criminal Defense Lawyer, who points out that:
this was not an appeal from a criminal conviction. It was not a question of a statement that a defendant was asking to be suppressed because he was denied his Sixth Amendment right to counsel. This was a civil claim under 42 U. S. C. §1983. The Plaintiff was arrested and charged with felon in possession of a handgun, although he was not a felon. At his first appearance before a magistrate, he asked repeatedly for his attorney which was not provided to him. He appeared before a magistrate, was released on bail, was indicted and re-arrested, and spent three weeks in jail before an appointed attorney was able to explain to the prosecutor that he was not a felon and should not have been arrested in the first place.

His claim was that if he had been provided a lawyer within a reasonable time after he requested one at the initial appearance before the magistrate, he would not have been indicted, re-arrested, and jailed for those three weeks.

So part of the confusion about Rothgery may be that, since the ruling stems from a civil case, it contains none of the usual trappings one expects from a criminal court decision - the exclusion of evidence, etc.. For example, the court notably declined to dictate at what point in the process Gillespie County must appoint a lawyer, narrowly defining the question they answered in terms of the civil case. However, IMO the court's conclusion that Texas' article 15.17 hearing marks the point of attachment for the Sixth Amendment right to counsel still has significant implications for Texas criminal law - at least for counties that weren't appointing counsel until after indictment - even if that's not the context in which SCOTUS decided the question. This was a narrow decision, but for Texas at least, not quite vanishing.

Death penalty in Texas' 'Jessica's Law' not viable after SCOTUS' Kennedy decision

SCOTUSBlog reports that the US Supreme Court's ruling in the Kennedy case out of Lousiana bars states from legislating the death penalty for the crime of child rape "when the victim does not die and death was not intended." The 5-4 ruling written by swing-man Justice Anthony Kennedy will invalidate a portion of Texas' new "Jessica's Law" statute, which included the death penalty for the second offense.

Though the ruling will disallow a portion of Texas' statute and the state participated in an amici brief to support Louisiana's position, the ruling will affect no pending Texas cases. That's because, cleverly, the House members involved with Texas' 2007 Jessica's Law - notably Jerry Madden and Dan Gattis along with Rep. Debbie Riddle who accepted their amendments on the House floor - found a way to put off the real-world application of the death penalty with a bit of legislative sleight of hand.

They created a new statute - "continuous sexual abuse of a child" - which did not previously exist in the world, so no one had ever violated it before. Since the first conviction for this new crime gets a mandatory 25 year sentence before parole could even be considered, the first possible Texas death sentence for this crime could have come sometime around 2033.

I didn't support the final product and still think it has other problems, but I've gotta give Gattis, Madden and Riddle credit for a nifty piece of law-writing, performed in a highly politicized environment with lots of pressure from the leadership to pass a bill including a death sentence. Thanks to their prudence, Texas avoided having DAs pursue high-profile, emotion-filled death-penalty cases based on what turned to be an unconstitutional premise. For once we didn't actually step in the cow patty before having to clean it up.

See the SCOTUSWiki page on Kennedy, a roundup from the Stand Down blog, and related coverage from Doc Berman at Sentencing Law & Policy. Here's the intial New York Times coverage.

UPDATE: See the statement on Kennedy from the Texas Association Against Sexual Assault in support of the SCOTUS opinion, as well as intitial reactions from Corey Yung at the Sex Crimes blog.

NUTHER UPDATE: Shannon Edmonds from the Texas District and County Attorneys Association emails to say I'm remembering the House version of "Jessica's Law," that the version that cleared the Senate did include the death penalty for near-term offenses. Writes Edmonds:
First, most prosecutors did not support the death penalty provision; in fact, several elected prosecutors (including John Bradley) publicly testified against that provision during committee hearings on the bill, and even after its passage, no prosecutor has sought death in any such case, so I think your fears about Texas leaping before it looked are misplaced.

Second, the death penalty provisions of Jessica's Law applied to the repeat commission of certain "super"-aggravated sexual assaults against children. It did not apply to continuous sexual assault of a child. (Earlier House versions of the bill did so, but that was changed in the Senate).

Third, due to the particular wording of the statute, the death penalty was very much on the table for those repeat "super"-aggravated offenders as of September 1, 2007.

Fourth, at the urging of prosecutors, the law included a savings provision that ensured a sentence of life without parole for those "super"-aggravated offenders would survive an adverse ruling from SCOTUS.
In any event, in whatever form the death penalty made it into Texas' Jessica's Law and similar statutes in other states, it's now been defenestrated by the Kennedy ruling. Thanks Shannon for the clarification on Texas' statute.

CCA backs off changes to attorney-client privilege rule

The first dead-tree coverage of a proposed change to the Texas attorney client privilege rule didn't arrive until after the idea was retracted. The Court of Criminal Appeals last week backed off a proposed change to Texas' attorney client privilege rule in response to complaints generated in the blogosphere. Reports Texas Lawyer:
The Texas Court of Criminal Appeals has defused a heated debate that has raged in blogs and e-mails to CCA judges over a proposal to eliminate a special rule of privilege in criminal cases. CCA Judge Cathy Cochran says the state's highest criminal court unanimously decided June 16 to defer the proposed deletion of Texas Rule of Evidence 503(b)(2) at least six months to allow ample opportunity for all interested parties to draft a proposed substitute for that rule or to draft a rule or statute to govern the attorney work-product doctrine.
This was a debate that occurred almost entirely within the blogosphere or though private emails, with the MSM apparently only noticing what was happening after the fact (with the exception of SA Express New reporter Elizabeth Allen on her own blog). Robert Guest at Dallas Criminal Defense Lawyer and Mark Bennett at Defending People first raised the alarm, then Court of Criminal Appeals Judge Cathy Cochran graciously authored a guest post on Grits explaining the court's suggestion. Keith Hampton from the Texas Criminal Defense Lawyers Association authored a guest post in response, while Jeff Rambin at Tyler Appeals also weighed in. See also the academic memo that started all this and an analysis by federal public defender Richard Anderson.

Perhaps it's the case, as Judge Cochran declared in her guest post, that the rule is a "vestigal tail" with "no wag," but the truth is the CCA has trust problems with the defense bar, not least because the presiding judge openly declares herself pro-prosecution. What's more, the court fairly routinely identifies as "harmless error" in its rulings all sorts of egregious errors that clearly did indeed cause harm, a fact the defense bar well knows. So there's little reason for defense lawyers to trust the CCA's good intentions or believe it when the court says the change won't hurt them. From their perspective, the CCA's idea of what's "harmless" routinely includes quite a bit of possible harm.

It was the right move IMO for the court to give the defense bar more time to come up with alternative language. It might be wiser still for the court to just let this sleeping dog lie, vestigal tail and all, letting some future court with more balance and fewer credibility issues with the defense bar tackle purely cosmetic changes to the rules.

Tuesday, June 24, 2008

Dallas County data-entry errors could lead to more wrongful arrests like Walter Rothgery's

Why should anyone care if the Dallas County Sheriff has flaws in its data entry for crime reporting or allows uncredentialed people to use the system? You might ask Walter Rothgery, the Gillespie County defendant who was falsely accused of being a felon in possession of a firearm when he had no prior felony conviction. (His arrest and the denial of an attorney to defend against those false charges just led to a new Supreme Court ruling.)

The Dallas News last week ("Audit reveals flaws in how how Dallas County Sheriff's Department uses state, federal databases," June 19) detailed similar data entry problems in Dallas County to the one that led to falsely accusing Mr. Rothgery and launching his federal civil rights case. Reported the News:

A state audit of the Dallas County Sheriff's Department's use of state and federal criminal justice databases revealed a lack of required training as well as some inaccurate records.

In January, the Texas Department of Public Safety audited the department's use of the FBI's National Crime Information Center computer database as well as the state version, the Texas Crime Information Center system.

The audit said terminal operators must receive required training, as must Sheriff Lupe Valdez, Executive Chief Deputy Jesse Flores, Chief Deputy Gary Lindsey and two assistant chiefs.

The audit also found that some records that have been certified by the Sheriff's Department as being complete and accurate were inaccurate. Other records needed to be double-checked by a second person for accuracy.

For want of a nail, the shoe was lost, for want of a shoe, etc., etc. ... If data entry errors hadn't caused Rothgery to be falsely accused in the first place, Gillespie County would never have suffered the consequences from his wrongful arrest and detention, not to mention the cost and embarrassment of a loss at the US Supreme Court.

Data entry sounds like perhaps the most boring part of law enforcement duties. But in the modern information age - when errors can travel in seconds across the continent to compound themselves in other jurisdictions - it's more important than ever that criminal justice agencies get that stuff right.

Mental health and school finance implicated in TYC policies

Two otherwise unrelated stories about the Texas Youth Commission show how interconnected the agency and its facilities are at a fundamental level both with other social service agencies and the communities they serve.

First, the Texas Observer blog wonders if the Texas Youth Commission can ever be fixed as long as it remains a dumping ground for the failures of schools and the indigent mental health system.

Perhaps the agency has been so hard to rehabilitate because its problems extend beyond a handful of troubled facilities or a flawed approach to juvenile justice. Mental health advocates blame public officials’ failure to recognize the importance of early intervention programs within the mental health system statewide as a key culprit.

“If we addressed these problems early on, with community and school-based programs, these kids wouldn’t end up at TYC,” says Jodie Smith, public policy director of Texans Care for Children.

But, in Texas, a state ranked 49th in the nation for mental health funding, kids in need often don’t get any psychiatric help until they are already deeply entrenched in the criminal justice system. ...

The fact remains, however, 38 percent of its youth have serious mental health problems, and another 72 percent come from “chronically chaotic households” (a condition often linked to later development of PTSD, depression and addiction)—shifting the culture and practices of the agency to meet such a large need takes money, resources and time.

Meanwhile in a bizarre TYC-related development, a tiny West Texas school district struggling to make up lost revenue when TYC closed the Sheffield unit has contracted to provide educational services in Galveston for the "Seaborne ChalleNGe Corps, a military-style program for troubled teens based in Galveston" operated by the Texas National Guard.

The Iraan-Sheffield school district pursued the arrangements because of revenue lost when the Sheffield unit closed earlier this year, hoping to generate revenue entrepreneurially to make up for TYC's past subsidies to local programming.

Though there's nothing wrong with it per se, this strikes me as an unusual arrangement. I don't know of any other school district providing contract correctional education services outside their own jurisdiction, nor was I previously aware the National Guard ran youth camps. Live and learn.

Asset-forfeiture dependent Sheriff views Hwy 77 as a "piggy bank"

Not long after the Texas State Senate held an informative hearing on law enforcement's use and misuse of asset forfeiture funds, NPR's John Burnett offered up this report I'd missed giving a global overview on the topic, but profiling specifically the Kleberg County Sheriff, who called US Hwy 77 a "piggy bank." Reported Burnett:

Federal and state rules governing asset forfeiture explicitly discourage law enforcement agencies from supplementing their budgets with seized drug money or allowing the prospect of those funds to influence law enforcement decisions.

There is a law enforcement culture — particularly in the South — in which police agencies have grown, in the words of one state senator from South Texas, "addicted to drug money."

Part of the problem lies with governing bodies that count on the dirty money and, in essence, force public safety departments to freelance their own funding.

In Kleberg County, where Kingsville is the county seat, Sheriff Ed Mata drives a gleaming new police-package Ford Expedition bought with drug funds. This year, he went to his commissioners to ask for more new vehicles.

"They said, 'Well, there ain't no money, use your assets,' " he says. He says his office needs the money "to continue to operate on the magnitude we need."

Another county agency, the Kingsville Specialized Crimes and Narcotics Task Force, survives solely on seized cash. Said one neighboring lawman, "They eat what they kill." A review by NPR shows at least three other Texas task forces that also are funded exclusively by confiscated drug assets.

The concern here is that allowing sworn peace officers — who are entrusted with enormous powers — to make money off police work distorts criminal justice.

"We're not going to sidestep the law and seize people's money just for the financial gains of the department," Tamez says. "It's not going to happen."

If law enforcement is so brazenly violating federal restrictions on using forfeitures to supplant their own budgets, that's one more good reason for the Legislature to consider taking a portion of those funds to finance drug courts and treatment programs.

Monday, June 23, 2008

What does Rothgery really mean?

Lots of talk in the legal blawgosphere about what today's Rothgery decision from SCOTUS really means:

Gideon at A Public Defender says the Rothgery ruling is narrower than I've portrayed, while TalkLeft interpreted the outcome more as I did.

Orin Kerr at the Volokh Conspiracy thinks Rothgery raises as many questions as it answers.

Scott Greenfield is also confused what the decision does in practice.

Crime and Consequences calls it a "narrow, almost vanishing, opinion on counsel."

Carolyn Elefant at Legal Blog Watch wonders if Rothgery actually won!

See also an initial story from AP and more nuanced coverage from

Austin Reentry Roundable seeking input on policy priorities

Tomorrow night (Tuesday, June 24) the Austin Travis County Re-Entry Roundtable invites the public to contribute to crafting the group's 2009 legislative agenda, via email:
The Austin/Travis County Reentry Roundtable invites you to join us for our upcoming "Policy Reform" community forum.

Recognizing that people with criminal histories face significant barriers and that more effective reentry policies and laws will provide a greater opportunity for success, we ask that you please join us as we identify and prioritize issues that will determine the focus of our advocacy work both now and during the legislative session.

The forum will be Tuesday, June 24 from 6:00 to 8:00 PM at Town Lake Center (721 Barton Springs Road). Please see the flyer for more details including how to RSVP.
A flyer attached included the following additional detail:
* How can we keep people out of jail while holding them accountable for their actions?

* Do you have a family member or friend who has or will be leaving jail or prison and is struggling with reintegration into the community?

* How do we balance successful reentry of formerly incarcerated people and public safety?

The Goal of this Forum Is To:
Help the Austin/Travis County Re-Entry Roundtable's Policy Reform Committee identify the policies, practices, and challenges that impact successful reentry for persons with criminal backgrounds.
Take their survey and RSVP here or just show up at the event.

I thought of one reentry-oriented idea recently that Travis County wouldn't need any legislative authority to enact. A friend recently had all sorts of trouble getting arrangements with their Travis County probation officer because this person and the P.O. had the same days off. So every month the same choice arose: Either miss work or miss a P.O. appointment. Eventually, both the job and the P.O. were unhappy, but the situation seemed entirely preventable.

I don't see why the Travis County probation department can't do its best to acquire work schedules for offenders' who're employed and schedule office visits when they're not on the job. How simple would it be to ensure that probationers with jobs can take care of their office visits on their days off? Ditto for parolees though I've no firsthand knowledge the same thing happens there.

For that matter, I continue to believe probation and parole departments should use the employment rate among supervised offenders as one of the primary outcome measures by which both administrators and line officers are judged. Prioritizing employment for probationers - or at least getting the probation department out of the offender's way - would go a long way toward preventing recidivism an improving public safety. When the the probation officer creates barriers to employment instead of encouraging it, IMO our priorities are backward.

RELATED: See this Power Point presentation (pdf) explaining the makeup and activities of the Austin/Travis County Reentry Roundtable.


YFZ Ranch dispute far from over

Grits' coverage has died down but that doesn't mean everything's over regarding the Great Eldorado Polygamist Roundup. Though I find myself with little to add beyond what's been said already, here's some recent coverage that may interest Grits readers:

SCOTUS to Texas: Provide counsel earlier in process

Via SCOTUSBlog, the US Supreme Court today issued its ruling in Rothgery v. Gillespie County (see the opinion and the SCOTUSWiki on the case), in which the majority held that:
A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Pp. 5–20.

(a) Texas’s article 15.17 hearing marks the point of attachment, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made.
What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

That's how most other states do it; Texas had just been skimping by not appointing counsel earlier. According to the opinion, "The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority."

Pero no mas. Now Texas and those six other states must hire attorneys for indigent clients earlier in the process. As I pointed out earlier, it's not a very wise time for counties to be slashing indigent defense budgets. (UPDATE: The ruling was narrower than first portrayed. SCOTUS said what Gillespie County did was wrong, but expressly did not say what they should have done instead.)

Congrats to everybody over at the Texas Fair Defense Project who spearheaded the case. This was a big win on an important topic.

See prior related Grits posts: