Tuesday, September 30, 2008

Balko interviews DEA House of Death whistleblower

Since I've been back on the topic of snitching recently, I should mention that Radley Balko did an interview with the DEA whistleblower in the infamous House of Death case in which El Paso-based "federal agents had allowed a paid government informant to participate in a dozen brutal murders [across the river in Juarez] — all but the first of which could have been prevented." Balko gives a great backgrounder and taste of recent developments in his piece at Reason Online.

TYC deprioritized abuse allegations while media frenzy raged

The Texas Youth Commission Ombudsman's first ever report to the state's political leadership (pdf) of “particularly serious or flagrant” problems at the agency alleged that TYC had closed files on hundreds of allegations of staff-on-youth abuse without proper investigation. I've finally had a chance to look through the relevant documents, so here's my take what we've learned from this new report, at least in broad strokes:

The story begins in June 2007, when Governor Perry's "fixer" Jay Kimbrough left the TYC conservator's post for a cushier job at Texas A&M, and former TDCJ #2 man Ed Owens took over in his stead. At the time, I marveled that Governor Perry "appointed a man to run the agency for whom the state [in 2006] paid to settle allegations in a civil suit that he (and others) ignored sexual harassment complaints from subordinates at his old employer, the Texas Department of Criminal Justice."

By the time Owens ascended from interim executive director to conservator in June 2007, TYC and other agencies had established widely publicized hotlines to gather complaints of abuse, past and present, some of which turned out to be credible and spawned a flurry of mostly negative media attention about the agency throughout much of the year. Confounding the problem was a great deal of confusion and overstatement of aggregate data caused by uncoordinated systems that double-counted cases and made it difficult to track them internally.

It was at just this moment in July 2007, we learn in the Ombudsman's memo, that the Youth Rights Division was reorganized and "the number of Youth Care Investigators dropped from 21 to 8; a 62% decrease." Indeed, "two facilities did not have a Youth Care Investigator assigned at all."

So to summarize: The Governor brought in Ed Owens from TDCJ - a man for whom the state had previously paid a civil settlement over allegations he covered up sexual misconduct by a subordinate - who proceeded to slash the number of abuse investigators by 2/3 at a time when the volume of complaints was higher than ever. Though the Ombudsman's timeline is careful not to name names of individual decisionmakers, that sequence of events was the most astonishing revelation to me in the entire document.

However, the memo also raised additional, significant legal concerns. In an addendum to the original report, Assistant Ombudsman Kim Bennink wrote in an addendum (pdf) that "TYC is not in compliance at this time with the Evins [settlement] agreement" with the US Department of Justice because of the agency's inability/failure to document and track incidents of misconduct.

Bennink also raised "serious concerns about the agency's compliance with the Prison Rape Elimination Act of 2003 (PERA given the apparent status of the AMI system." In PREA, Congress asserted under the Act's findings that "The Supreme Court ruled that the deliberate indifference to the substantial risk of sexual assault violates prisoners rights unde rthe Cruel and Unusual Punishment Clause of the Eigth Amendment." I'm not sure whether slashing the number of investigators at a time when complaints were pouring in constitutes "deliberate indifference," but it's sure headed in that direction.

The good news is that many of these problems can and will be fixed going forward, though every delay risks the statute of limitations running out regarding some of the older cases. More than 500 cases will be revisited now by the Office of Inspector General, so ultimately the OIO report has identified - and the agency has agreed to implement - a way for TYC to work itself out of the dilemma created by lapsed investigations.

From a global perspective, I tend to agree with House Corrections Chairman Jerry Madden who told me last week that while he thought the Ombudsman's findings were significant, the situation now seemed to be under control. He considered this not nearly as critical as the special education shortcomings identified in a comprehensive OIO analysis released this summer, and on the whole I'd have to agree.

The decision to slash the number of investigators while the number of complaints was booming was made by specific agency leaders who are now gone. There's not much left to do in that regard but pick up the pieces - one more unhappy task awaiting the new Executive Director.

Here are the full, related materials from the OIO:

Why owning a 3-year old Kia may mean indigent defendants can't get a lawyer in Collin County

I've wondered before what the hell is the matter with Collin County justice and this latest report does little to boost my confidence. Now it turns out if you own a car or any other non-liquid asset worth more than $2,500 in Collin County, judges don't consider you indigent for purposes of having an attorney appointed in a criminal case! According to the McKinney Courier Gazette ("Determining the right to an attorney," Sept. 30):
A new report compiled and published earlier this month by the Brennan Center for Justice at the New York University School of Law mentions Collin County as an example of a court system that “explicitly require screeners to view the non-liquid assets of potential clients as available to pay for counsel” citing a financial consideration in the county’s fair defense plan for felony cases that defendants with assets of $2,500 or higher are not considered indigent
Bill Baumbach at the Collin County Observer adds:

From what I've seen, too many defendants are in court without an attorney, and too many are forced to plea bargain either without an lawyer or because they can't afford one.

The criteria for claiming indigency are entirely too severe. Owning a 3 year old Kia can keep you from getting a court appointed lawyer. Prisoners are handed long intimidating forms, and I've heard stories that they've been told that if one thing is untrue, they will be prosecuted for perjury.

See Collin County has cut spending on legal defense for the poor - by Ed Housewright of the DMN, Jan. 27, 2008

Also see Collin cuts court costs, but at what price? by Ed Housewright of the DMN, Aug.4, 2007

For good measure, here's a link to the report from the Brennan Center, titled "Eligible for Justice," for anyone interested.

There was another reference in the report to a Texas example, Midland County, which requires screeners to include spousal income and assets when calculating a defendants' indigency. I have no idea if that's typical elsewhere in Texas, but the Brennan Center found it remarkable.

Federal coercion to implement Adam Walsh Act doesn't justify the cost

Thanks to a reader for pointing out these shocking statistics from the D.C.-based Justice Policy Institute which calculated that it will cost Texas $38,771,924 to implement the requirements in the 2006 federal Adam Walsh Act, which expands and broadens state sex offender registries into a national program at the states' expense.

As has become typical, Congress threatened states by telling them they won't get back their fair share of tax dollars they sent to Washington if they don't give up this or that measure of sovereignty - in this case they'll lose 10% of federal Byrne grant funds which are block grants given to states to support law enforcement.

The new federal law "Broadens the range of offenses covered from aggravated sex acts, such as rape, to include sex crimes with elements of sexual contact, even if they are not sex acts," according to the Juvenile Probation Commission (ppt), and expands the lifetime registry to include youth as young as 14. The federal law also quadruples requirements for verification of information in the database (from annually in Texas now to every three months), creating significant additional bureaucratic costs at all levels of government.

Regardless, different Texas state agencies are implementing pieces of the federal law on their own, but purely as an administrative decision without budgetary authorization from the state. I mentioned earlier the Department of Public Safety recently began putting sex offenders' employment information online, which it turns out is a new requirement in the Adam Walsh act. The Department of Protective and Family Services has similarly chosen to comply with the new federal regs on their own as they relate to that agency.

By contrast, Texas officialdom has received the idea much more coolly. Last year the Legislature balked at mandating implementation, so basically those agencies are doing this on their own. Wrote prosecutor association lobbyist Shannon Edmonds earlier this year on the TDCAA website:
Legislation to implement the revised Adam Walsh Act was introduced last session but failed to pass -- primarily because the bill's own sponsors ... decided it was bad public policy.

For the text of the bill, see here.

Some other states have also backed away from coming into compliance, although I can't recall which ones. All states have until the summer of 2009 to come into compliance or face the loss of some federal funds (which just so happen to be getting cut in D.C. anyway, so the loss may not actually amount to anything anyway).
As Shannon alluded, the penalty for Texas not implementing the changes would be to lose 10% of its annual Byrne grant funds, a pot of money which has declined dramatically in recent years.

In 2006, Texas received just $14,045,713 in Byrne grant funds, which means Texas would only lose $1,404,571 if the state chose not implement these new national standards. (Long-time readers will recall that these are the federal monies that once funded Tulia-style drug task forces in Texas, now abolished. Today most of it goes toward expanding treatment-oriented programs and to pay for the Governor's border security program.)

So the Texas Legislature could save taxpayers $37,367,353 and keep the public safer just by telling the feds to "go to hell" and informing DFPS and DPS the state will not comply. That's a big ol' unfunded mandate - a lot of agencies scratch and claw each others eyes out at the Legislature for a lot less money than $37 million. Given that sex offender registries increase recidivism for people on their rolls, I'd prefer we just not do it!

RELATED: See this excellent resource page on the Adam Walsh act from our pal Corey Yung at the Sex Crimes Blog and a power point presentation from the Juvenile Probation Commission about the Adam Walsh act and what would be required for Texas to implement it.

Monday, September 29, 2008

Snitching stories from all over

Having discussed over the weekend one of the most egregious horror stories I've seen regarding mendacious informants and prosecutorial misconduct, I thought I'd point readers to several recent non-Texas cases involving snitches that demonstrate more problems associated with their unregulated use:
  • Encouraging Illegal Break-Ins. In Virginia, reports Reason's Radley Balko, two police informants "broke into Ryan Frederick's home and stole the alleged marijuana plants the police then used as probable cause to obtain the search warrant." One of the burglars had earlier told a reporter that "police were actually encouraging these illegal break-ins." When police raided the house the homeowner shot and killed one of the officers as they were attempting to break down the door; they found less than a third of an ounce of pot. The informant told the Virginia-Pilot, "he and an accomplice didn't worry about breaking into Frederick's garage because police assured them they would be protected. 'The dude said he was going to look out for us, so let's go do it,' he said."
  • Protecting Criminals. Donna Weaver at Women in Crime Ink reports on the trial of an FBI agent who allowed informants associated with Boston mobster Whitey Bulger to literally get away with murder of an accountant/rat within their organization who was giving information to the feds. Weaver poses a series of poignant questions for the former agent; my favorite: "If John Callahan’s murder was a result of information you provided to your CIs in order to protect them, why are you then not guilty of murder? Did you think your CIs would send Mr. Callahan on an all-expense paid vacation to the South Pacific?"
  • Setting Up Innocent People. A DEA Agent whose lying informant set up an innocent man in Florida 15 years ago, we learn at TalkLeft, moved to Ohio and enlisted another snitch who did the same thing to nearly two dozen people. Wrote a federal judge in Florida in a 2002 civil judgment against the state: "Today's criminal justice system is at risk of being exploited by confidential informants ... The only people who can protect the system against the 'rogue actions' of confidential informants are those who use them: the government."
  • Lack of Oversight. A 23-year old informant in Tallahassee, Florida was murdered when "an 18-member team of local, state and federal law enforcement lost contact with [her] midway through the [undercover] operation" Police broke many of their own rules regarding informant use, including coercing her "to become a confidential informant without arresting her, cutting out the state attorney's office from being involved in crafting the cooperation agreement."
  • Unethical Coercion. Finally, I was fascinated to read this account of methods used by the Israeli secret police in the Gaza strip to develop informants, including not only torture but denial of critical medical care if families of sick people do not agree to become government collaborators.

Promoting familiy ties behind bars

Children of incarcerated parents tend to rebel and act out because of their parent's absence and are 5-7 times more likely than their peers to end up incarcerated themselves, so I was encouraged to learn of this program in a Missouri women's prison aimed at encouraging mothers behind bars to spend quality time with their children. Reported USA Today ("MO program fosters family ties behind bars," Sept. 25):
The crayons, construction paper and toddlers scattered on the floor suggest a typical daycare center or kindergarten classroom. The armed guards and surveillance cameras reveal a painful reality.

The handful of inmates gathered for the monthly program at the Women's Eastern Reception, Diagnostic and Correctional Center include some of the state's most notorious female convicted murderers.

But their crimes don't prevent the women's loved ones from calling them Mommy and Grandma, or from needing a hug or words of encouragement. And while the inmates do time, their children and grandchildren often struggle with feelings of anger, resentment and betrayal.

University of Missouri outreach workers started the family support program in 1999 at the state's maximum security prison in Potosi. Known as the Living Interactive Family Education program, or 4-H LIFE, is now offered in Potosi, Vandalia and the Algoa Correctional Center in Jefferson City.

"There are many education programs for incarcerated parents," said program director Tammy Gillespie. "But not a whole lot that work with the entire family."

More than 1.7 million children in this country have a parent in prison, according to the federal Bureau of Justice Statistics. And more than half of the estimated 1.5 million inmates in U.S. prisons last year were themselves parents.

From a loss of custody to emotional damage and financial hardship, those fractured families face challenges even after the missing parent is released, Gillespie noted. The inmate education program is designed to strengthen family bonds while also teaching the parenting skills necessary to survive in the outside world.

"We're not just an activity to keep people busy," she said. "We're trying to build skills that will last a lifetime."

"They get to practice their parenting skills in a safe environment," Gillespie added. "And they get a chance to show their family and their children that they're trying to do better."

Arlington returning to foot patrols

The City of Arlington reports success in crime reduction after reinstating foot patrols, especially around crime-ridden apartment complexes. The Fort Worth Star-Telegram says that since they:
started their foot patrol, Arlington Police Department statistics show a slight drop in crime. More importantly, residents feel safer.

"Foot patrol was just a godsend," said Eleanor Powell, who directs social service programs at the Artisan. "We had a lot of graffiti. We had fights. We had vehicle thefts. But all of that is down."

The department reports similar results in the two other neighborhoods where it launched its foot patrol pilot program in December. It’s too soon to gauge results for three patrols that started in June, but the City Council recently approved funding for 12 more foot patrol officers, and the department expects to add two patrols in January, Police Chief Theron Bowman said.

Several cities across the country have resurrected foot patrols in recent years. San Francisco’s Police Department was ordered to start a foot patrol program in 2006. In Atlanta, foot patrol is the first assignment for all rookie cops. But in Tarrant County, Arlington’s program is unique. It’s modeled after one in Providence, R.I.

In a sidebar to the piece, the Startlegram published an interview with UT-Austin Prof. Bill Spelman about the efficacy of foot patrols. Said Spelman:

The best example in the country right now is in San Diego. They’re training all their officers in recognition and analysis of recurring problems. A growing number of departments are recognizing it’s great if they have some officers they can dedicate to community policing, but also that they can stretch their resources if all officers recognize that part of their job is getting out of their car and finding out what’s going on in the community.

It’s not the presence of a police officer that’s getting crime to go down, it’s what they’re doing.

Sunday, September 28, 2008

Snitch who walked for his testimony turned out to be real killer, rapist; prosecutor became judge, and soon elected DA

As DNA evidence sorts out errors made in old cases, sometimes it also reveals examples of official misconduct from decades past, in this case by a lawyer who's about to become elected District Attorney in Cooke County, a rural county along the Oklahoma border (Gainesville is the county seat).

The prosecutor in question cut a deal for the testimony of Gerald Pabst back in 1986 to gain his assistance prosecuting rape-murder charges against his brother-in law, Clay Chabot. This fact was never disclosed to the defense, but last year DNA evidence proved Pabst himself was the rapist, and last week Pabst was convicted of the murder, though Chabot may still be recharged.

However Chabot's case turns out, it's fascinating the way DNA evidence sheds light on the the specific causes of wrongful convictions. In this instance, the prosecuting attorney failed to disclose information about a snitch-and-you-walk deal with Pabst in which she agreed to drop all charges against him in exchange for his testimony.

Given that Pabst actually committed the crime, that would have been a hard deal to pass up! That observation, of course, points directly to the problems with allowing such compensated testimony in court without corroboration or vetting the informant's reliability.

To bring the story full circle, the prosecutor whose misconduct was identified in the Pabst case went on to become a Dallas County judge and is about to win an unopposed election to become an elected DA. The Dallas News Crime Blog picked up this tidbit from the Pabst murder trial coverage:

The prosecutor who withheld the evidence is Janice Warder, also a former Dallas County judge. She is running unopposed next month to become Cooke County's District Attorney.

A murder charge was dropped against Mr. Pabst after he testified in 1986, but last year prosecutors filed a capital murder charge after DNA tests showed Mr. Pabst was the rapist.

Judge Mike Snipes recommended in March a new trial for Mr. Pabst's brother-in-law, Clay Chabot. He said that Ms. Warder withheld information that would have helped Mr. Chabot at trial.

Let the Chips Fall

Where They May.

The Dallas News presents speculation pro and con on the $64 Question that arises now that former Court of Criminal Appeals Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell admitted engaging in a long-term romantic affair while she was a district judge, during which time the DA's office prosecuted hundreds of defendants before her court: What will happen to all the other cases besides Hood's which may also be ethically compromised?

Reports Diane Jennings ("Former prosecutor, judge intimacy may affect more than a single death row case," Sept. 27):

Some legal ethicists say prosecutors have a responsibility to identify cases from the years the two held office and ensure that the convicted have their day in court. Others doubt that is the prosecutors' role.

"They do have a proactive responsibility," argues Robert Schuwerk, a University of Houston law professor who co-wrote the Handbook of Texas Lawyer and Judicial Ethics.

"The principal duty of a prosecutor under our system is not to convict but to see that justice is done," he said. "I would think that a prosecutor has the duty to either bring those cases forward or, at the very least, cooperate in establishing which cases were affected by this behavior."

Others say it is a defense responsibility to raise issues about the validity of a conviction.

Collin County Assistant District Attorney John Rolater says it is his duty to see "that justice is done," but the chief of the county's appellate division declined to comment on whether the county will proactively identify cases that might have been affected by the relationship between the judge and prosecutor. ...

It's "uncharted territory," said Rob Kepple, executive director of the Texas District and County Attorneys Association. "I'm at a loss to answer that."

Prosecutors "normally wait for a defendant or someone else to raise these questions," he said. And, he added, prosecutors "want to see where the injury is, where the harm is. We want someone to spell it out for us. ... If the defendant can link that up and show me something in the record, I guess we can talk about it."

Texas Attorney General Greg Abbott – who stepped in days before Mr. Hood's most recent execution date to urge an investigation into the relationship– said he would have "to know more background facts, what exactly happened, when did it happen" in each case before deciding whether a review was warranted. ...

Keith Hampton of the Texas Criminal Defense Lawyers Association,

said he does not expect a blanket order from either the district attorney or a court to cover all cases potentially affected by the relationship. Instead, "they're going to have to do this one case at a time."

But Lawrence Fox, former chair of the American Bar Association Ethics Committee, said sweeping steps may be necessary to preserve confidence in Texas' criminal justice system. Not only does he think the district attorney is obligated to bring the cases to the attention of the court, he suggested that the state should provide attorneys for defendants to challenge their convictions.

"I would hope that, under these circumstances, the state would recognize a special obligation to these people, because, remember, it was two state officers who did all this.

"You would hope somebody would say the system of justice has a black eye right now, and one way to remove it is to make sure these people who are in a prison get counsel to deal with these issues," he said.

DPS boosts sex offender ostracization without reason

Via Crime and Consequences:
Texas Registry Posts Sex Offenders' Jobs: In addition to a sex offenders' name, home address, photograph and criminal record, the Texas Department of Public Safety is now posting their employers, according to the story by Brian Collister, of WOAL TV in San Antonio. The state is providing the employment information to allow the public to learn if sex offenders are working in jobs that bring them in contact with children. The link to the Texas registry is here. A therapist notes that the new information may cost some offenders the jobs they need for rehabilitation.
This is a foolish move by the Department of Public Safety, and one taken on the agency's own initiative, not because of any legislation directing them to do so. This decision by DPS makes it more likely sex offenders will not be able to successfully rehabilitate and successfully make their way in society when their sentence is complete.

From the beginning, when a later-exonerated man was pilloried in the Ashley Estell case as the prime example justifying the bill, Texas' sex offender registry has been based on faulty premises. Research has consistently shown that sex offender registries "increas[e] recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior," making it hard to keep employment and function in society without harassment or ostracization.

Now DPS wants to reduce the chance sex offenders can be gainfully employed - for what reason (beyond a pure, cynical public relations ploy) I cannot fathom. There's certainly zero public safety benefit. It's basically an overt decision to increase the number of sex crimes in Texas. What is DPS thinking?

Friday, September 26, 2008

Why should snitches' testimony get extra scrutiny?

One of the CCA "Integrity Unit" members, Texas House Corrections Chairman Jerry Madden, posed a question to Justice Project President John Terzano regarding snitches during his presentation yesterday that inspired me to (perhaps rudely?) interject from the audience a response to his concerns. (I was attending as part of my consulting gig with the Innocence Project of Texas.)

Terzano was arguing that informants whose testimony will be compensated by money, reduced charges or more lenient sentences for other crimes they've committed should be subjected to a pre-trial reliability hearing in which a judge, outside the purview of the jury, makes an independent determination whether the informant is a reliable source.

Regular readers know this is an idea that I've long regarded highly since first hearing about the concept from Loyola (CA) law prof Alexandra Natapoff, a former federal public defender turned law professor and a deep thinker on snitching-related topics. I know of many cases where such a precaution might have prevented a lot of heartache.

Madden asked whether the courts subject any other witnesses to this sort of pre-vetting and why shouldn't they just rely on the jury to determine if the witness is credibile? Terzano replied that informants were a special case because they had special incentives to lie, but I could tell by the look on the Chairman's face he was dissatisfied with the response.

So I raised my hand like a schoolkid from my seat in the peanut gallery (the event was held in the CCA court room), and, receiving the barest acknowledgment, burst in to insist that the more precise analogy would compare snitches to paid, expert witnesses, for whom the courts have established the Daubert standard to determine whether jurors can hear their testimony. Though it's more notoriously true in civil court, because experts are paid by advocates aiming for a particular outcome that's in dispute, frequently opposing sides of a legal matter can find qualified experts willing to espouse entirely opposing views if they're both paid by people with conflicting agendas (in this case conviction vs. acquittal).

Similarly, I said, confidential informants should be considered compensated witnesses just like experts who're evaluated based on the Daubert standard. Even when snitches aren't compensated directly with cash, their reduced or eliminated culpability for other crimes constitutes compensation more valuable, in a real sense, than anything money can buy! After all, what is the price for human freedom?

In an era when so-called "tort reform" has been a cause celebre in Texas politics for more than a decade, the idea of pay-per experts with college degrees, suits and briefcases willing to testify to anything for a buck has almost become a cliche. How much more willing would some criminal be to lie or manipulate evidence when their "compensation" for doing so is their freedom instead of just a 3-figure hourly fee?

MORE: Commenter Don Dixon asked "isn't this what cross-examination is for?" I emailed his question to Prof. Natapoff after replying myself, curious about her answer. She replied, in relevant part:
1. The large number of exonerations in snitch cases suggest that cross examination doesn't do a very good job, since juries apparently believe lying snitch witnesses anyway even when they are cross examined. Professor George Harris [George C. Harris, Testimony for Sale : The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)] points out that while cross may be effective for regular witnesses, snitches whose own lives are on the line may be particularly difficult witnesses to budge from their stories.

2. In federal court, the Jencks Act delays the government production of witness statements until after the witness has testified, meaning that the defense won't even get to see the snitch's prior statements until after he takes the stand - it's hard to cross effectively under those circumstances. See Ellen Podgor, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 Georgia St. U.L. Rev. 651 (1999).

3. Professor Jeff Neuschatz's study [Jeffrey S. Neuschatz et al., The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, 32 Law & Hum. Behav. (2008)] found that mock jurors didn't even care whether the snitch was compensated - they convicted at the same rates whether they were told of the deal or not. In other words, jurors may be impervious to the things that we think will cause them to disbelieve snitches.

4. By the way, the Supreme Court in the Hoffa case clearly believed that cross examination would be effective against informants and prevent fundamental unfairness to defendants. It's just not so clear that the Court was right.

Lab personnel rarely collect crime scene evidence directly

Another few tidbits from yesterday's meeting of the Criminal Justice Integrity Unit created by the Court of Criminal Appeals; this time let's highlight some comments from the event about Texas forensic labs:

Pat Johnson, who's the field supervisor for DPS' state-run crime labs and a member of the Integrity Unit panel, performed an informal survey of non-DPS crime labs in Texas operated by local jurisdictions. Respondents said that less than 10% of evidence collected at crime scenes was gathered by lab personnel, with most of it being collected by cops. Austin PD is the main exception, he said, with an entirely civilian Crime Scene Investigation unit.

A majority of labs, when asked how good a job they were doing, replied that some improvements were needed.

One lab said they did not believe they were receiving all available evidence that should be examined, while a majority said "we don't know."

Johnson said 2/3 of local labs provided some training to staff but relatively few people were actually receiving it. He asked about evidence storage. DPS labs return evidence to whoever sent it to them, while local labs vary, with some storing it themselves while others return it to police property rooms. On biological evidence, though, even when evidence is returned most labs have a policy of retaining a DNA sample.

Several respondents expressed concerns about storage space, which corroborates concerns expressed by John Vasquez's presentation on space shortages at police property rooms. Jim McLaughlin, a lobbyist for the police chiefs' association who's a member of the Integrity Unit, said three schools - Texas State, Texas A&M, and Sam Houston State University - were all developing training programs for crime lab personnel. He urged expanded funding for training if the state expected everyone to participate.

Another speaker, John Terzano who's the President and co-founder of the Justice Project, said that forensic errors or malpractice was the second biggest cause of false convictions in Texas behind erroneous eyewitness/vicitim IDs. He urged expanded funding and staffing for the Forensic Science Commission to allow it to be more proactive instead of just "backward looking." He also argued for "blind testing" in forensic labs so the technicians actually running the tests don't know the details of the case in order to avoid bias and pressure to be a "team player."

Terzano also mentioned that Texas recently received $500,000 in federal grant funds for DNA testing but that money had not been finally allocated yet to individual departments. This is a so-called "Bloodsworth" grant authorized under the Federal Innocence Protection Act, he said. Four other states - Washington, Arizona, Kentucky and Virginia - also received money under this federal grant program.

Police evidence rooms are 'red-headed stepchidren' of law enforcement, Integrity Unit told

At yesterday's meeting of the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit, created earlier this summer to examine proposed innocence-related reforms, John Vasquez from the Texas Association of Property and Evidence Inventory Technicians (TAPEIT) gave an interesting presentation about evidence preservation failures and the need for greater professionalism and implementation of best practices by police department property rooms. TAPEIT has about 600 active members who work in law enforcement agencies around the state, he said. (See their rather active message boards.)

Vasquez gave these examples of property room failures from years past:
  • In Fort Worth in 1997, a murderer used a knife stolen from the Fort Worth Police Department property room to kill someone. His mother, who worked for the Fort Worth PD, supplied him the weapon. Police found a house full of property stolen from the evidence room when they came to arrest him.
  • Galveston's PD's property room was recently called "the worst" she'd seen in 30 years by a consultant brought to recommend changes after an employee stole cocaine, ecstasy and $18,000. The thief was actually a TAPEIT member, he said, who'd attended their previous year's conference, but the agency suffered from a lack of supervision and documentation procedures to prevent an unethical person from stealing.
  • In Houston earlier this year 30 guns turned up missing and Vasquez provided additional detail about that case. The culprit was a telephone repairman, he said, who had free access. They also found a temp employee with evidence room access while he was awaiting trial on aggravated robbery charges. He said the department didn't have "enough personnel to follow others around" when non-PD employees needed evidence room access.
  • Money seized as part of pending asset forfeitures was stolen from the Hillsboro PD evidence room in 2006, said Vasquez. A single thief took the money, but there were no checks and balances, paperwork, audits or other preventive methods to oversee staff.
He needn't have stopped there, of course, but the examples made Vasquez's point that evidence room management could "make or break a department." Within many departments, evidence rooms are considered a "black hole" or "red-headed stepchild," he said, and are typically stuck in a basement somewhere treated with an "out of sight, out of mind" attitude. Nearly every evidence room in the state is full and needs more space, he said.

A key problem arises from departments' historical approach to staffing evidence rooms, said Vasquez. Many agencies assign officers who have disciplinary problems or who've been relegated to desk duty pending an Internal Affairs investigation. Some officers are put there as "light duty" because of physical handicaps that supposedly prevent them from being able to perform field work, but that practice ignores how much lifting and toting must be done by those who work in property rooms. Most departments use police officers to manage evidence, he said, but that's not required and TAPEIT recommends that civilians perform that function.

There's very little training for evidence managers beyond what TAPEIT provides, said Vasquez, and typically departments prioritize field officers in their training budgets. Flawed methods are often passed down by word of mouth or picked up on a "learn as you go" basis, while many evidence room managers don't know the laws that govern their activities. Rep. Jim McReynolds questioned whether techs could learn everything they needed to in the 8-hour TAPEIT training, to which Vasquez replied, "No."

The most immediate problem with Texas evidence rooms stem from a lack of space, he said, and unclear laws and rules about what can be kept or disposed of. When dealing with biological evidence, for example, some DAs want only a sample of whatever was tested - a piece of bloody fabric from a couch instead of the whole couch, e.g. - while others want the entire item saved for trial. Also, too many evidence rooms fail to exercise their "right of refusal" for items that are shoddily packaged or too dangerous to store around where people immediately work.

The advent of "touch DNA," he said, threatened to overwhelm agencies' storage capacity. Potentially lots of new items could be stored for touch-DNA testing, even though labs already have tremendous backlogs. That means long lag times during which the evidence must be securely stored despite limited space.

Another issue: The law allows pre-trial destruction of most drug evidence as long as it was weighed, measured, photographed, and at least five random samples were taken with sufficient quantities for testing. But some DAs want all the drugs saved for "show and tell" in front of the jury, even when large volumes are involved. Vasquez thinks photographs would do the job just as well.

Seized meth labs are especially toxic, he said, and many evidence managers struggle with how to handle them as evidence or safely destroy them. He also said air quality in evidence rooms can create health and safety hazards. For example, keeping too much marijuana laying around for a long time can spawn Aspergillus, a toxic mold that can be inhaled by evidence room workers.

Rep. Jim McReynolds, a member of Judge Hervey's "Integrity Unit" as well as the budget officer for the Corrections Committee in the Texas House, said he wants to carve out evidence preservation as an area for his office to work on and likely propose legislation next year during the 81st Legislature.

RELATED: For those interested in reading more about this topic, I should have mentioned that the Denver Post last year produced the most in-depth recent journalistic analysis yet of problems related to evidence retention around the country, an account I highly recommend. To pull one Texas gem from the story: In Houston, a "courthouse official" said to the Post, "Biological evidence? That would include tree bark, right?"

CCA gets another chance to probe ethics of their former colleague in Charles Hood case

The Texas Court of Criminal Appeals will get another chance to do the right thing and evaluate whether their former colleague Judge Verla Sue Holland's extramarital exploits tainted the 1990 Charles Hood capital murder trial. Hood's attorneys filed another habeas appeal yesterday, even though the CCA previously made it clear they had no intention of reviewing Judge Holland's alleged misconduct before Hood's execution.

Since eight of the nine court members previously served on the bench with Judge Holland, their studied indifference to the now-admitted affair in this writer's view amounted to a stunning ethical lapse. Now, at least, the CCA will get a chance to partially, belatedly redeem itself.

With the new filing, from the Dallas News ("Attorney General defends actions in investigation of affair between judge and DA," Sept. 26) we get more details of the relationship than have been previously reported:

The petition filed Thursday seeking a new trial shed more light on the relationship between Judge Holland and Mr. O'Connell. According to the petition, Judge Holland told attorneys it began in 1982 and ended in 1987; Mr. O'Connell recollected it started in 1984 or 1985 and did not end until 1991 or 1992.

The two apparently remained good friends even as the romance waned. As late as 1991, they traveled to Santa Fe together, and Mr. O'Connell attended Judge Holland's family reunion that same year.

The depositions reportedly said both parties professed their love for each other during the relationship. Mr. O'Connell said Judge Holland talked about getting married, but Judge Holland denied that.

Both parties said they kept the relationship secret. "Their sexual encounters took place at each other's homes when their spouses were away," according to the petition.

According to the petition, Judge Holland said during her deposition it was "absolutely not" improper for her to preside over the Hood case. Her attorney has said the romance was not going on at the time of Mr. Hood's arrest and trial.

Texas Attorney General Gregg Abbott told the News:

that he had expected Texas courts to "step up and do the right thing" by investigating an affair between the judge and prosecutor in the trial of condemned killer Charles Dean Hood.

Only when they didn't, did his office publicly intervene in a case that he says "has called into question the integrity" of the Texas justice system. ...

"A real triggering event was when it was learned that a hearing was set to look into this matter days after the execution was set," he said. It was then that the former Texas Supreme Court judge took public action.

While I'm glad Abbott finally stepped forward when he did, to be honest it was clear long before this recent episode that Texas' highest criminal court did not plan to examine Judge Holland's allegedly unethical bench behavior before Hood was killed. Houston Chronicle columnist Rick Casey bottom lines the whole mess thusly: "Texas came very close to becoming, once again, a source of national amazement. We very nearly executed a man, only to learn days later that his judge and prosecutor had been lovers." Heck, depending on the CCA's decision, the state may still execute Mr. Hood even knowing that information!

Thursday, September 25, 2008

Open Thread

I'll be out most of the day to attend the second meeting of the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit, so check out the blogs in Grits' sidebar while I'm gone and use this post as an open thread to let us know what Texas criminal justice issues you're paying attention to that the rest of us should be watching.

Also, though I've not covered the West Texas polygamy story in a while, a college pal of mine, Susan Hays, who was one of the nearly 300 attorneys ad litem involved in the case, was interviewed extensively about the case and her experiences in this extended ABA Journal article. Those interested should give it a read.

Wednesday, September 24, 2008

Ombudsman: TYC closed abuse cases without proper investigation

SB 103 required the Texas Youth Commission's Ombudsman to report to the Governor, the Lt. Governor and the Speaker of the House whenever he discovers "particularly serious or flagrant" problems or abuses, and Ombudsman Will Harrell issued his first such report today to say TYC closed more than 500 cases of alleged mistreatment without making a final determination or forwarding information about criminal allegations to the Inspector General. (See AP's initial coverage.)

Here's an excerpt from the cover letter giving an overview of the Ombudsman's concerns:
The Office of the Independent Ombudsman (OIO) is statutorily required to report “particularly serious or flagrant” abuse of youth rights or problems with the TYC administration immediately to certain officials. This is the first occasion that the OIO has felt that something we uncovered triggered that provision. ...

The OIO has identified several structural and procedural flaws with the administration of the TYC Alleged Mistreatment Incident system (AMI). Our greatest concern, and the reason for which we are contacting your office, is that we discovered hundreds of abuse or neglect allegations that were administratively closed without proper administrative and/or law enforcement investigation.

Additional concerns include the following:

• Failure to ensure disciplinary consequences follow confirmed AMI’s
• Wrongful assignment of AMI investigations in halfway houses
• Substantial delay in assignment and investigation of AMI’s
• Inadequate staffing levels for AMI system and poorly trained and underqualified investigative and managing staff
• Lack of independence for AMI system
• Lack of data integrity in AMI system

In March of 2007, the State Auditor suggested that the AMI system be placed under the direction of the TYC Inspector General. That restructuring was recently directed by Conservator Nedelkoff and we believe that it will insure that the problems we have identified do not persist.
The cases summarily closed referenced by the OIO were among those that came in last year in response to the massive publicity about sexual and physical abuse at TYC. While sexual abuse cases were quickly identified, physical abuse and other types of mistreatment didn't always merit the same administrative focus, the Ombudsman found. The report isn't online yet but I'll get a link up when it's available and provide a more thorough account after I've had a chance to fully read it.

MORE (9/25): The SA Express News has coverage; here's an excerpt:

Texas Youth Commission ombudsman Will Harrell identified 85 cases of alleged abuse or neglect that — according to the agency's own records — were closed without being investigated by the agency's administrative arm, the Youth Rights Division, or by any law enforcement agency, in violation of procedures.

Another 88 recently closed abuse and neglect cases were investigated “by a law enforcement agency, but not by the Youth Rights Division as required by policy,” Harrell said in a blistering report he delivered to the state's top leadership Wednesday.

A total of 564 cases alleging mistreatment of youths were closed by the agency without any record indicating how they were disposed, the report says.

In some instances, abuse allegations were assigned to the alleged perpetrator to investigate, Harrell said. Other cases were left hanging after being assigned to people who had been transferred to other departments and not notified, or to people who had left the agency.

MORE: The Houston Chronicle quotes Sen. John Whitmire declaring, "I personally cannot guarantee any judge or parent that their kid is not going to be abused" ... I want very specific documentation, no cover-ups, no smoothing things over," continued Whitmire. "Do I have confidence in the current administration? No. Do I have confidence in the current dynamics of this agency? No."

Next Wednesday, a meeting of the joint legislative committee on TYC oversight will consider the details of Harrell's report and other TYC-related matters.

When DNA evidence accuses after the statute of limitations runs out

The preservation of biological evidence has not only led to a remarkable string of DNA-based exonerations in Dallas, it's also helping police solve cold cases in violent crimes, even where the statute of limitations has run out. Reports the Dallas News: ("DNA links rapes to men where statutes of limitations have expired," Sept. 24):

It's an issue Dallas must face because, unlike most counties nationwide, it has preserved DNA evidence for decades. And though 19 prisoners have been exonerated as a result, that evidence is incriminating people as well.

Dallas police are taking a second look at hundreds of old rape cases in light of advancing technology. That leaves officials grappling with how to handle the newfound suspects.

If they can't be charged, Dallas police and District Attorney Craig Watkins would like to require them to register as sex offenders, and to have their deeds noted in their criminal histories.

"This is all new," Mr. Watkins says. "We're going into uncharted territory." ...

The statute of limitation on rape in Texas spanned only five years in the 1980s. Such laws protect the rights of defendants in situations where time has washed away evidence that could exonerate them. People die, memories fade, records disappear.

Because of the certainty brought by new technology, Texas' statute of limitations for rape was eliminated in 1996 for cases with suspect DNA. But the U.S. Constitution says those accused of crimes in the past can only be held accountable based on the laws in place at the time.

While I think the Lege might be receptive to Watkins' idea to enter DNA-identified suspects into the sex offender registry, my educated guess would be that the federal courts would not let that stand without actual convictions to back up the entries. Moreover, I'm unconvinced the sex offender registries work as advertised thanks to research showing they actually increase recidivism for those on their rolls, so for my money it doesn't sound like Watkins has struck upon the right solution, yet, though I understand his frustration.

Along with the string of exonerations in Big D, these cases show why evidence preservation can be important even when it may not prove anything at the time. Dallas' practice of saving old biological evidence not only has exonerated the innocent but identified the guilty. Who knows what new technologies may exist 20 years from now that might provide a similar, future window on innocence and guilt based on re-examined evidence in today's cases?

Innocent until reported guilty

I've spent a great deal of time on Grits discussing a panoply of possible innocence reforms, from improving eyewitness ID procedures to requiring corroboration and reliability tests for informants to improving forensic labs and recording police interrogations. But in Miller-McCune Magazine Steve Weinberg suggests that improved journalism about crime and punishment may be the best remedy:

One solution for wrongful convictions, however, has not been explored in a sustained, meaningful manner. It is a solution that cannot be legislated or even come from the government. The solution requires writers and editors for newspapers, magazines, radio stations, television stations, Web sites and books to practice preventive journalism rather than after-the-conviction, too-late journalism.

Until and unless journalists improve their performance, far more innocent people will be imprisoned than the criminal justice system seems likely ever to acknowledge. The logical extension of the preceding statement seems obvious, but I’ll say it anyway: Unless journalists get better at covering the justice system, many criminals will continue to go unpunished, free to murder or rape or rob again. So investigating wrongful convictions is not — as perceived by too many police, prosecutors and judges — an assault by soft-on-crime bleeding hearts. Rather, it is an attempt to serve law and order, to improve the administration of justice and to foster faith in the criminal justice system.

Writing in the University of Missouri, Kansas City Law Review, researcher Rob Warden noted just six years ago, “Throughout most of history, until quite recently, journalism generally was hostile to claims of innocence by those convicted or accused of serious crimes. The annals of reporting are replete with instances of prejudicial sensationalism, often published in concert with police and prosecutors under pressure to convict someone without credible evidence. On rare occasions when post-conviction discoveries of innocence were chronicled, the reporting invariably was subdued and devoid of any explicit suggestion that there might be systemic problems.”

But advances in DNA testing over the past 15 years have led more and more journalists to listen carefully when contacted by inmates claiming innocence. High-profile exonerations based on DNA testing demonstrate the wrongful-conviction problem convincingly; those exonerations also suggest the scope of the problem in the vast majority of cases that have no testable DNA evidence.

Weinberg wraps his critique around the remarkable story of a wrongful conviction in Missouri based on a pair of jailhouse informants who accused an innocent woman, showing how any cursory investigation by a reporter would have revealed the main flaws in the case many years before the courts finally admitted it. He continues:

The typical situation within newsrooms today looks like this: Coverage of criminal cases is spotty and often superficial when it occurs. Elected prosecutors tend to be treated as the last of the sacred cows, the white hats who keep the streets safe for law-abiding citizens. The lawyers hired by the elected prosecutor are rarely mentioned in print and even more rarely subjected to meaningful scrutiny, despite their considerable power. The police in general are not treated so sacredly by journalists. That said, almost all individual police officers operate anonymously as far as most journalists are concerned, allowing rogues to make questionable arrests with relative impunity.

The criminal cases that do receive coverage are usually those proceeding all the way to trial. Because in a typical jurisdiction only about 5 percent of defendants reach trial (the other cases are dismissed or plea bargained by the prosecutor), the math is basic: Around 95 percent of criminal cases never receive coverage by journalists after the arrest.

Even the cases that reach trial almost never receive the kind of journalistic scrutiny that could reveal a wrongful conviction in the making. Instead, reporters and editors handling trial coverage simply summarize what is occurring within the confines of the courtroom, rather than conducting an independent inquiry.

To be fair, I'd add to Weinberg's assessment that among innocence cases, there have definitely been instances, at the Dallas News and Houston Chronicle, for example, where journalists were ahead of the curve. In Austin recently, the Austin Chronicle's Jordan Smith has tracked the infamous Yogurt Shop murder cases at a level of detail that leaves little doubt the defendants falsely confessed after DNA from the rapist was recovered from a vaginal swab that matched none of the defendants. Here's a typical paragraph from Jordan's coverage:
The revelation in April that there was a new male profile collected from semen found on a vaginal swab taken from the youngest victim, 13-year-old Amy Ayers, appeared to deliver another stunning blow to the state's already weak case against Scott and Springsteen. Indeed, although the state insists the two are responsible for the murders, there is absolutely no physical evidence tying either man to the crime. The same is true for two other suspects – Maurice Pierce, the man the state has said was the "mastermind" behind the crime but against whom all charges were dismissed in 2003, and Forrest Welborn, who was dropped as a suspect after two grand juries failed to indict him – even though plenty of physical evidence was recovered from the scene, inside a North Austin yogurt shop.
That's exactly the type of independent assessment Weinberg's calling for, and while I agree it's not typical, it's not entirely accurate to say it never happens. By comparison, the daily newspaper has tended to provide so-called "balanced," he-said she-said coverage that fails to delve deeply into the facts of the case. So I certainly agree with Weinberg that critical reporting about crime stories isn't typical, and we'd all be better off if it happened more often. Via CrimProf Blog.

BLOGVERSATION: At Simple Justice.

Waco jail affairs clouded in controversy

Having earlier covered debates in Waco over new jail construction and privatization, I should point readers to several recent articles on the McLennan County jail that show those topics haven't yet fully resolved themselves.

First, departing House Urban Affairs Committee Chairman Kevin Bailey "has asked the state attorney general to determine whether it is legal for a sheriff to accept a fee for work with a private detention company that contracts with his county to operate a county jail," reported the Waco Tribune Herald. (See more on the AG request from Texas Prison Bidness.)

Meanwhile, jail plans in Waco are at a standstill because the consultant chosen by the county can't figure out how to build a jail that complies with state regulations within the minimalist package approved by the commissioners court. (The jail may turn out to be a two-story building instead of a one-story structure.) Jail planners also proposed using video visitation at the jail in lieu of adding more parking space and building a larger visitation area:

Another design issue is deciding how much space should be dedicated to the jail’s visitation center. Officials are contemplating building video visitation kiosks throughout the jail that would be linked to a video conferencing center off-site for families to contact inmates. The video conferencing center would contain private booths similar to pay phones.

Visitation hours still would be held at the facility for people who choose to do in-person visits. Less space would be set aside for the parking lot, and a smaller visitors’ center would be created under the assumption that fewer people would come to the jail for visits, leaving more space for cells.

“We envision it being something like the pay phones in the jail now, except instead of the phone portion it would be video,” Adams said. “These things will be regulated, so you won’t have people getting visitation at 2 o’clock in the morning. But there would be set times for when inmates can visit, and it will be more convenient for the families.”

Sheriff Larry Lynch said during the meeting he supports video visitation, citing success of the practice at Collin County jails in North Texas. He said the video conferencing also could be used by attorneys to meet with their clients, a practice that is being used in the 54th and 74th state district courts.

“There could be longer visits, depending on how we get this worked out,” he said. “It would be more convenient for people because they won’t have to come out to the jail and sit out in the parking lot waiting to get in. And they won’t get turned away because there are too many people (coming to the jail).”

Finally, besides new jail building, county practices in the current jail have also come under fire. The Austin-based Texas Civil Rights Project has filed suit against the McLennan County jail to stop its practice of strip searching inmates. A few years back I heard an attorney involved in successful California jail litigation on strip searches, and from that account I'm guessing the sort of blanket strip searches described as going on in Waco are clearly unconstitutional. TCRP is working with co-counsel from California in the Waco case who:
has settled several class-action strip-search cases against county jails in at least three other states and currently has a similar suit pending in Bexar County in Texas, a Texas Civil Rights Project spokesman said. In 2005, Sacramento County, Calif., agreed to pay $15 million to 4,000 inmates who were strip-searched “without reasonable suspicion,” the spokesman said.
See prior, related Grits posts:

Tuesday, September 23, 2008

Harris County needs an independent Public Defender office

Even as Dallas County commissioners' new caseload quotas and heightened bureaucracy gutted their Public Defender office (I learned over the weekend a 6th felony attorney turned in their resignation on top of the five mentioned earlier on Grits), in Harris County the commissioners court today will hear the details of a preliminary plan on how to create a PD office in Houston. The idea is still in the early stages and would require approval of the commissioners court to proceed. Reports the Houston Chronicle ("Harris County to review plan for public defenders office," Sept 23):

A public defenders office would represent some indigent defendants in four criminal district courts and one juvenile court under a proposal to be presented to Commissioners Court today.

Public defenders also would be assigned to some defendants with mental retardation or significant mental illnesses in the four district courts and all 15 county criminal courts under the plan crafted by the county's budget and management services office.

The plan, submitted as part of the court's annual mid-year budget review, offers a long-awaited but early look at the kind of system Harris County could adopt. A final vote is not expected until shortly before the court adopts the 2009-10 budget in March.

It remains unclear if supporters of the proposal could muster enough support on the five-member board to prevail.

The only step court members are expected to take today is authorizing further studies by a team of representatives from county and district courts, the county attorney's office, each Commissioners Court member's office, the criminal defense bar, the Texas Fair Defense Project and the Texas Task Force on Indigent Defense. ...

State Sen. Rodney Ellis deserves a lot of credit for pushing this idea in Harris County and getting the ball rolling. Generally I'm a big supporter of public defender offices. They not only save the county money on attorneys fees (thanks to economies of scale) but also help process defendants more quickly and to that extent even help with jail overcrowding. While some attorneys fear it will take money out of their pockets, that doesn't have to be the case. In Dallas about half of indigent assignments still go to private attorneys. And there's always the much-more desirable market of defendants who can pay.

Clearly, though, from Dallas' experience, part of any plan for a Harris PD should include ways to insulate the office from direct manipulation by the politicians who set their budget. With prosecutors it's easier because a District Attorney is independently elected, but nationally we see episodic problems with politicized interference by counties similar to what recently happened in Dallas. That's the crux of the concerns raised in the Chronicle story by the defense bar:

Criminal defense lawyer Tate Williams said the plan does not go far enough to eliminate the appearance of impropriety.

"If the judges get to control who gets what case, you're always going to have the allegations of bias and favoritism," Williams said.

He said he would oppose any public defender plan unless the legislature capped the number of cases each attorney could handle and required counties to provide those offices with the same money and access to resources given to prosecutors.

A 15-member Public Defense Board would oversee the whole system, setting those standards, appointing the director and approving the annual budget.

Commissioner Steve Radack said he opposes giving the Public Defense Board authority over a county department. He said the report submitted to the court raised more questions than it answered.

"If it can save the taxpayers money, that's one thing," Radack said. "If it actually provides something better than what we're providing today, we can talk about it."

County Judge Ed Emmett said he had some of the same questions. Commissioner Sylvia Garcia said the report is a step in the right direction.

I've found Commissioner Radack's comments throughout this discussion particularly interesting because he insists he'll base his decision solely on whether a PD office will save taxpayers money. Since there's literally no question at all that's the case, you'd think he'd be a supporter. However, the bigger sticking point may turn out to be whether the commissioners court is willing to cede enough control to make a PD office independent.

California prison reform package implodes amidst partisan bickering

Regular readers know that the Texas Legislature in the last two sessions successfully forged remarkable bipartisan agreements supporing key first steps toward reforming the criminal justice system in ways that reduce the number of new inmates entering Texas prisons, though we still have a long way to go.

In California, by contrast, partisan bickering this month killed a legislative package aimed at cutting the state's prison population and reducing the corrections budget, thanks to tuff on crime demagoguing, largely along partisan lines.

To provide a little background, it's worth mentioning that California's prison system currently suffers an even more significant crisis than Texas - by far - because unlike here, the US Department of Justice has not been shy about stepping in to address shortcomings in both juvenile and adult systems. In 2007 California's "Little Hoover Commission" issued a report titled, "Solving California's Corrections Crisis: Time is Running Out," which outlined the problem thusly in a transmission letter to the Lege:
California’s prisons are out of space and running out of time.

The State already has ceded control to the federal courts for prison mental health, juvenile justice and the prison health system. In December, a federal judge ordered the State to fix the overcrowding problem within six months, or face the prospect of a prison population cap.

The State is past the point for assigning blame. The urgency of the crisis demands we look now to those who can produce a solution. That responsibility lies with the Governor and the Legislature. You have the authority and, as California’s leaders, must share the duty of fixing California’s failed corrections system.

A default strategy of waiting until federal judges order needed changes is not governing. The Governor and Legislature need to take the initiative away from federal courts by demonstrating you have a better plan. That way, the Governor and Legislature can regain the confidence of the courts as well as the Californians they govern. ...

The Governor and Legislature must find the political will to move past rhetoric and address ways to solve the prison population crisis and make good on promises to improve public safety. “Tough on Crime” sentencing laws have to be judged by outcomes and matched with fiscal responsibility. To ensure public safety, reforms will have to jettison posturing to make room for smart on crime policies.

You must act decisively on the problem or turn it over to an independent body, insulated from politics, that can. Our recommendation and preference is for you to do it yourselves.

The problem does not need further study. The State knows what the answers are, thanks to nearly two decades of work by such groups as the Blue Ribbon Commission on Population Management, the Corrections Independent Review Panel and a series of reports by this Commission.

Despite ample evidence and recommendations, policy-makers have been unwilling to take on the problem in a purposeful, constructive way. The consequences of failing to act aggressively now leave the State open to losing control of the State correctional system and with it, control of the state budget.
And yet, despite the threat of courts taking over their decisionmaking role, at much greater cost to taxpayers, and a massive state budget crisis, the California Legislature couldn't muster the political will to pass anything constructive. Reports the Sacramento Bee:

Gov. Arnold Schwarzenegger and Democratic lawmakers agreed earlier this year on a set of carefully written reforms that would have made the prisons more effective, and cheaper. Democrats estimated the savings at $445 million.

The elements were:

• Parole reforms. Instead of the standard three-year parole after serving a prison sentence, nonserious, nonviolent offenders would be discharged from parole after five months of clean time.

• Early release of dying or paraplegic offenders who pose no risk.

• Good-time credits for inmates who complete training programs, providing incentives to prepare for life after prison.

• Updated sentencing thresholds for property crimes (such as grand theft and forgery). For example, the grand theft threshold is $400, unchanged from 1982. That's $925 in today's dollars.

This $445 million package was whittled to $175 million in August. But even that minimal package was unacceptable to Republicans, who tried to paint the Democrats as soft on crime, when in fact the proposals arguably would have made Californians safer. In the end, the package dwindled to just $14 million in savings.

With federal courts already so actively involved in oversight of California's corrections system, this failure to rein in rising prison populations amounts to a breach of fiduciary responsibility. The Sac Bee blames Republicans in the legislature, but that body is controlled by Democrats so the majority party clearly couldn't muster its forces to counter concerted opposition.

I've frequently wondered why USDOJ has targeted California prisons and youth detention centers so aggressively, but not those in Texas where many of the health and safety outcomes that spawned court action in the Golden State are just as bad or worse?

My working theory is that Texas has been spared systematic, Ruiz-style prison litigation over the last seven years because there was a Texan in the White House and, for a time, atop the pyramid at the Department of Justice itself. It's hard to imagine Alberto Gonzales unleashing the hounds at USDOJ on his buddies back in Texas. By contrast, California is a "blue" state run by Democrats, particularly before election of the Governator, so politically it made a more inviting target for partisan Texans in the Bush administration.

If that interpretation is accurate, Texas may not be spared a similar fate once a senator from Arizona or Illinois takes control of the reins of power.

Monday, September 22, 2008

Jerry Madden on TYC, prison diversion

Dallas Blog has an interview with House Corrections Committee Chairman Jerry Madden about the Texas Youth Commission, prison diversion programs, and what to expect in the 2009 legislative session. Give it a read.

Emotional pair of DNA exonerations argue for changing eyewitness ID procedures

This weekend in Fort Worth at a training event sponsored by the Innocence Project of Texas (for whom I'm employed as a consultant) and the Texas Criminal Defense Lawyers Association, I had the privilege of meeting some of the people whose stories were highlighted in recent Grits posts about DNA exoneration cases.

Johnnie Lindsey was released Friday after spending nearly 26 years in prison on a false conviction for rape. He's a quiet, gentle and somewhat fragile-looking man who underwent chemotherapy treatments for cancer while in prison. Lindsey speaks with the commitment and humility of a cancer survivor about the value of a second chance, and pledged to work toward the release of other innocent people in prison now that he's out.

Lindsey's quick to flash a smile, and he lit up when I asked him if he'd gotten to see any family yet. He described a tearful reunion with his son on Friday, who was 2 years old when Johhnie was sent to prison. He'd been out of contact with his son since he was five, and now the young man is nearly the same age as was Lindsey himself when he was wrongly accused and convicted. Tiara Ellis of the Dallas News was there for their reunion and published this account:
For the first time in more than 25 years Friday, Johnnie Earl Lindsey embraced his son – and freedom.

"My son, he wasn't even 2 years old when I left," Mr. Lindsey said. "His name is Johnnie, but we call him J.J."

"Nah, it's just Jay," said 27-year-old Johnnie Cooper, his eyes red and wet with tears as he looked at the stranger he has been told is his father.
Lindsey's case, like so many others, resulted from a faulty eyewitness identification, but this one had a twist: Detectives on the case MAILED the lineup photos to the victim a full year after the incident occurred. Not only that, the photos in the array seemed to improperly single Lindsey out; his picture was one of two men in the photo array not wearing a shirt and the victim had described her assailant as shirtless. What's more, a jury ignored especially strong alibi evidence - a time card and a work supervisor who said if Lindsey weren't there the business' work would have stopped. That goes to show just how powerful eyewitness testimony can be, even when it's inaccurate.

I met another remarkable set of people over the weekend who were highlighted in a recent Grits post, including the family of Timothy Cole - a Texas Tech student falsely convicted of rape who died in prison in 1999 but was exonerated by DNA evidence this summer. They were joined by the rape victim in the case, Michele Mallin (along with her husband), who had misidentified him first in a photo array and then in court.

Their presentations dramatically moving, particularly watching Cole's 71-year old mother break down and cry as she told Mallin in front of the group that she forgave her, that they were all victims of injustice in her son's case. She blamed the Lubbock DA's office and two detectives, she said, but not Mallin. I've gotta admit I teared up hearing her story, and I think probably everyone in the room did. Cole's youngest brother, Corey Sessions, vowed to take his brother's story to the statehouse in Austin to back innocence-related legislative reforms.

Hearing Mallin relive the episode was equally brutal. She insisted both in her comments Friday evening and in private conversation that she'd never wanted anyone but the guilty man punished - that should go unsaid, one would hope, but clearly she felt terrible about what had happened and felt the need to explain herself. You couldn't help but feel sorry for her, to rush to tell her "Nobody thinks that!," but it's easy to understand why she would feel that way.

The police had another suspect in Mallin's case who turned out, based on recent DNA testing, to be the real rapist. In fact his name, Jerry Johnson, was even mentioned several times during Cole's trial by the defense as an alternative suspect, though only when Mallin, who was a witness, was out of earshot. Johnson began writing first the DA's office to say he'd actually committed Mallin's rape when the statute of limitations ran out, but nobody told Mallin or Cole's family until Johnson contacted Cole's mother earlier this year.

Mallin said she'd never been told there was another suspect and always assumed the police had other evidence Cole had committed the crime beyond her identification. They did not. She was 20 years old at the time and justly proud of herself for testifying in the trial and doing the right thing. She said she'd now been "victimized twice" and it's hard to deny it.

It's difficult to imagine two cases making a more persuasive and compelling case for enacting eyewitness ID reforms in Texas.

BLOGVERSATION: The Friends of Justice blog discusses these two cases. More from TalkLeft, Crime and Federalism, and the Dallas News' Metroblog.

UPDATE (9/23): Michele Mallin and Ruby Session were featured on NPR's News and Notes segment today discussing the wrongful conviction of Timothy Cole and the Innocence Project of Texas' efforts to obtain his posthumous exoneration. Listen here.

The stench of justice

Here's a Hurricane Ike tidbit from the Harris County courthouse that wasn't widely reported, from Life at the Harris County Criminal Justice Center:
After Ike came through over the weekend, one of the biggest problems it created within the Harris County Criminal Justice Center was a back up of raw sewage that pretty much permeated the first floor of the building. Trust me on this one, folks -- it was freaking NASTY!
This report comes as part of a longer post criticizing Harris County for forcing the DA's office secretarial pool to dip into vacation time to fix up their homes after the storm passed. AHCL has been providing regular updates on the process of getting the Harris County Courthouse up and running last week.

Private prison news

These notable private prison stories showed up in the news over the weekend:

Laredo 'Superjail' launched.
Texas Prison Bidness informs us that the so-called Laredo Superjail - a controversial 1,500 bed facility that earlier drew staunch opposition - finally opened last week. TPB blogger Bob Libal offered this account:

I was able to attend the opening, and have to admit it was even more surreal than I could have imagined - complete with a high school mariachi band singing Spanish language ballads, a cake in the shape of the GEO Group's corporate logo, and a slew of new GEO Group prison guards (many of whom looked to be 18 or 19) wearing desert-camo style uniforms.

GEO Group executives George Zoley and Wayne Calabrese mingled with local politicos, including Laredo mayor Raul Salinas and Webb County judge Danny Valdez, who apparently have forgotten their respective councils' rejection of GEO money a little over a year ago.

The prison will hold pre-trial federal detainees for the U.S. Marshals - many of whom will be immigrants prosecuted for criminal violations under the program Operation Streamline. The facility was proposed back in 2003, and even before the official launch of Streamline, the Marshals capacity was being pushed almost exclusively by expanded criminal prosecution of immigration violations (PDF), a departure from the old style of dealing with immigration issues in the immigration court system.

Simply put, this $100 million gift to the GEO Group is almost exclusively due to the government holding border-crossers in criminal jail for 30-90 days before deporting them. Doesn't seem too "streamlined" to me.

Idaho's 'Virtual Prison' monitors oversee Texas facilities
Three prisoner deaths including two suicides in Texas are spurring a debate in Idaho over the state's reliance on out of state private prisons, according to a lengthy article in the Magic Valley Times News ("Families feel loss as out of state prison population grows," Sept. 21):
Idaho has so many prisoners scattered around the country that the IDOC last year developed the Virtual Prison Program, assigning 12 officers to monitor the distant prisons.

In 2007 Idaho sent 429 inmates to Texas and Oklahoma. This year; more than 700 - and by one estimate it could soon hit 1,000.
The Virtual Prison program is documenting problems, even if it's not necessarily solving them:
During recent visits to the Bill Clayton Detention Center in Littlefield, Texas - where about 371 Idaho inmates are now held - state inspectors found there wasn't a legal aid staffer to give inmates access to courts, as required by the state contract. Virtual Prison monitors also agreed with Aragon's assessment:

"No programs are offered at the facility," a state official wrote in a recently redacted Idaho Virtual Prison report obtained by the Times-News. "Most jobs have to do with keeping the facility clean and appear to be less meaningful. This creates a shortage of productive time with the inmates.

"Overall, recreational activities are very sparse within the facility. Informal attempts have been made to encourage the facility to increase offender activities that would in the long run ease some of the boredom that IDOC inmates are experiencing," according to a Virtual Prison report.
Arkansas prison system says privatization wrong overcrowding fix. Arkansas' prison system oversees a total 14,816 people, reports the Arkansas Democrat Gazette ("State still opposes private prisons," Sept. 20), but 1,247 are presently housed in county jails because the state doesn't have enough beds. In response, four legislators co-sponsored legislation last week to use private prisons for the overflow, but the state prison system is resisting the idea. Said a Department of Corrections spokesperson:
“I will say our department is not overly eager to step back into privatization.” [Dina] Tyler cited the state’s experience with the Wackenhut Corrections Corp., which ran the Grimes and McPherson units in Newport from 1998 to 2001.

“That experiment didn’t go well. The state had to assume management of those two facilities because the company couldn’t do what it said it could do,” Tyler said.

Wackenhut performed poorly in sanitation and maintenance issues, she said.

Tyler also pointed to a U. S. Department of Justice probe into the McPherson and Grimes units in November 2003 which characterized conditions at the two prisons as “unconstitutional” because of inadequate medical care and unsafe living conditions.

“That happened right after we stepped back in,” Tyler said.

[Privatization supporter Rep. Johnnie] Hoyt, who is in his first term as a state representative, said “if I’d been here a hundred years like everyone else, I’d know that. But is Wackenhut OK now ? Let’s revisit all aspects of that.” A subsequent agreement between the state and the Justice Department to remedy conditions at the prisons has been completed, releasing the state from federal oversight, Tyler said.