Wednesday, September 30, 2009

Perry scuttles Willingham arson inquiry with new Forensic Commission appointment: John Bradley


It'd be hard to make this up; it seems more like caricature or some tale from days of yore out of Tammany Hall, but it's actually today's news: Governor Rick Perry has ousted the head of the Texas Forensic Science Commission, which had displeased him by soliciting what turned out to be damning expert opinion regarding the Cameron Todd Willingham case (in which supposedly expert arson testimony used to convict Willingham and justify his execution was later debunked by modern science). The case has drawn national attention since the release of expert testimony solicited by the commission followed by the publication of a widely cited New Yorker article last month.

As the new chair, Perry chose (of all people) Williamson County District Attorney John Bradley, who prides himself on being one of the most outspoken proponents among Texas prosecutors of a sort of neoconservative, tough on crime philosophy. The Statesman called Bradley "a tough-on-crime politically connected conservative." I've certainly heard him called worse! ;) (Hi John!)

Bradley's first act as chair? To cancel a hearing Friday where the Commission was scheduled to hear a report from experts they've paid tens of thousands of dollars to analyze the science behind Todd Willingham's conviction. No word on whether or if the public hearing might be rescheduled. At a minimum, one imagines Bradley wants more time to prepare a full cross-examination of Dr. Beylers.

Perry is the only governor ever to appoint members to the Forensic Science Commission so this signals his displeasure, one assumes, with his prior appointees. Perry has said previously he believed Cameron Todd Willingham was guilty even if the arson science presented at his trial was wrong.

I understand if the Governor and Mr. Bradley don't think the Commission should have launched the investigation in the first place (though that was sort of its raisson d'etre), but shutting down the inquiry now seems like closing the barn door after the horses have run away. Dr. Beyler's (quite damning) findings have already been made public, so this move cannot succeed at suppressing the truth.

This really took a lot of chutzpah! But the governor can't rewrite history by simply stopping the Commission from making official findings. That ship has sailed. More people read that New Yorker article than will ever read anything the Commission publishes, so concern about polishing the state's image on the Willingham case is both belated and misdirected. We'll see what happens next; the ball is in Mr. Bradley's court.

The Commission had also planned a series of roundtable discussions around the state (pdf) beginning in November; no word on whether the leadership change will also affect those plans.

UPDATE (Oct. 1) Lisa Falkenberg at the Houston Chronicle likens the move to Nixon's Saturday Night Massacre. A Tarrant County prosecutor who was among the commissioners replaced told the Star-Telegram, "I feel like a jilted lover, except that he's prettier than I am." See more initial coverage from the New York Times, the Austin Statesman, the Dallas News, AP, Kuff, Eye on Williamson, and Burnt Orange Report.

Autopsy caseloads rise thanks to shortage of forensic pathologists

Here are two new stories in the Fort Worth Star-Telegram's series on forensic errors in Texas autopsies:
The issue of a pathologist shortage was raised prominently in Chapter 9 of the National Academy of Science's report from last spring critiquing the non-scientific basis of modern forensics. NAS said the shortage occurred because "The selection pool is local and small (because work is inconvenient and pay is relatively low), and medical training is not always a requirement." Indeed, said the report, "death investigations in the United States rely on a patchwork of coroners and medical examiners and that these vary greatly in the budgets, staff, equipment and training available to them and the quality of services they provide."

Said NAS, an estimated 1,300 pathologists have been certified in forensic pathology nationwide since the certification was first offered in 1959. Currently between 400-500 physicians in the United States practice forensic pathology full-time. "Although there are only about 70 positions available each year, recent data indicate that only 70% of the slots are filled."

"Texas doesn’t keep track of how many certified forensic pathologists work in the dozen county medical examiner offices," reports the Startlegram; "some put the number at 50," but "That’s not enough to serve large counties, let alone the 200-plus smaller ones that turn to them for autopsies." Based on autopsy caseload levels recommended in best-practices research, said NAS, there is an estimated national need for around 1,000 forensic pathologists.

The NAS attributes the shortage to high debt loads faced by physicians after college and the relatively low pay of forensic pathologists compared to other medical fields. Sounds to me like some targeted loan repayment assistance for medical examiners might be a way to get more doctors to take these jobs, particularly given how few positions, relatively speaking, come open each year in this subspecialty.

Craig Watkins learns the Golden Rule of politics

I've been ignoring the tit for tat feud between the Dallas County Commissioners Court and District Attorney Craig Watkins because it has become personal, petty, boring, and I hoped it'd go away after the county budget passed. But apparently the hard feelings engendered during that and other recent spats have continued to escalate and yesterday the Commissioners Court decided to show Watkins who's boss, hiring private counsel to advise them on an investigation of two constables over Watkins' bitter opposition. Reported the Dallas News:
Over the strenuous objections of District Attorney Craig Watkins, Dallas County commissioners voted Tuesday to hire an outside lawyer to advise them about an investigation they ordered into the activities of two constables.

By a 3-1 vote, commissioners selected Dallas lawyer Sidney H. Davis Jr. A contract was expected to be signed by the end of the day Tuesday, officials said.

Watkins, who clashed with commissioners for months over budget cuts, said they acted outside their authority Tuesday and that his office will file an injunction against them before Friday in an attempt to block the move.

"They're usurping the power of this office," he said. "It's never been done before."

The contract will pay Davis $300 an hour and $200 an hour for his associates.
While Watkins deserves credit for his office's continuing work on innocence cases, his ham-handed catfight with the Commissioners Court has devolved into dysfunctional disaster. He seems not to understand which decisions in the local political system are his to make and which are theirs. So a majority on the court decided to teach the rookie DA the political version of the Golden Rule: He who has the gold, makes the rules.

This is not worth fighting over. Let them hire whoever they want, Mr. Watkins, that's their business - yours should be running the District Attorney's office, and you can't focus on that while you're spending your days in a media pissing match with the Commissioners Court. You've got an important election next year and you won't help your cause being shrill and reactive every time your critics bait you.


Tuesday, September 29, 2009

Harris County Commissioners Court approves public defender office

Via press releae from state Sen. Rodney Ellis' office:

(Houston , TX )// Harris County Commissioners approved the creation of a public defenders office at today's mid-year review hearing. The decision came after both the District Courts Administrator and the County Courts Manager recommended its creation. The plan to create a public defender office with divisions in appellate, felony trial, juvenile, and mental health will now be sent to the Criminal Justice Coordinating Council for implementation.

"I want to commend Judge Emmett and the commissioners for unanimously voting to do the right thing for Harris County . Until today, Harris County was the only urban area of its size without a public defender office. Today, we can say that we're taking a significant step towards following best practice models that are both economical and smart on crime," said Senator Ellis. "I look forward to working closely with the Council to implement a plan that is efficient and ensures that indigent defendants are receiving quality representation." Ellis began urging for the creation of the office in early 2008.

The commissioners court unanimously voted to study the feasibility of a public defender office back in April 2008.

UPDATE (Sept. 30): From the Houston Chron:

Prodded by two dozen Houston ministers and civil rights activists, Harris County commissioners voted Tuesday to develop a hybrid public defender office under consideration for more than a year.

But the critical details of the office, including its potential use in courts overseen by 40 criminal judges, the operating budget, the hiring of a director and the number of attorneys to staff it must be decided by next February for it to be funded in the county's 2010 budget.

“It's going to take however long its going to take,“ Commissioner El Franco Lee said. “It's now in the hands of judges, and bureaucrats and accountants who will tell us what that costs, can we afford it, and when we can afford if we can't afford it now.”

Officials are hoping a public defender office will help reduce the backlog of jail inmates awaiting trial in the overcrowded county jail system — currently holding 11,430 inmates in jails from Houston to Louisiana — and divert others with mental problems from incarceration.

“At the end of the day this really isn't just about money, it's about justice. We have to ensure the public that defendants are getting an adequate defense,” County Judge Ed Emmett said afterward. “The court's unanimous vote to move forward is a clear indication of an intent to establish a pubic defender's office in next year's budget.”

The 5-0 vote came during the court's annual mid-year budget review. The court referred the implementation of the plan to the newly formed Criminal Justice Coordinating Council. The council, chaired by Lee and drawn exclusively from elected officials, was created by the court this summer to help alleviate chronic jail overcrowding and streamline the county's criminal justice system.

Chief Harold Hurtt: Move along, nothing to see now at Houston crime lab

Houston police chief Harold Hurtt had an editorial in the Houston Chronicle recently declaring it a new day a the Houston Crime Lab, that by achieving accreditation the organization had professionalized to the point where it should be cut slack for past abuses. "HPD now has an entirely different crime lab," he pronounced. Only time will tell.

But even if the crime lab meets all current standards, there's increasing evidence that current standards often aren't good enough to pass scientific muster.

I didn't write much about the National Academy of Science's book-length report on forensics when it came out this spring because the legislative session was full upon us, but that document deserves more focus than I've given it, though it's received wide attention in other quarters, notably as last month's featured Popular Mechanics cover story.

Regular readers know about much-reported problems with arson science, with dog scent lineups, with faulty urinalysis, with fraud by technicians, so-called "shaken baby syndrome" diagnoses, and even potentially fallible fingerprints, The NAS report would add to the questionable list all the subjective comparative disciplines, including matching ballistics, tool marks, shoe and tire tracks, and handwriting. NAS also said what goes on at the medical examiners office needs to be professionalized and best practices enforced, a problem the Academy first identified as far back as 1928.

The NAS lamented that little money is spent on either primary or applied research in forensic fields and thus many commonly used tactics in crime labs are essentially unscientific and untested. For me to be comfortable the Houston Crime Lab needs no more special oversight, I'd need to hear the chief explain how the department plans to reevaluate its practices and stay current with modern science going forward. This op ed was silent on that question.

Perhaps most importantly, the NAS urged that labs be made independent of law enforcement, but they've not gone that route in Houston, where the crime lab remains under Chief Hurtt's jurisdiction. The biggest problem at the Houston crime lab historically wasn't a lack of training but the fact that they considered themselves on the prosecution's team and concealed findings that might benefit the defense.

Have the problems at the Houston crime lab been fixed? I hope so. But it will take more to convince me than an op ed from a man who probably shouldn't be in charge of the crime lab, anyway.

Add autopsies to list of frequently shoddy forensics

The Fort Worth Star-Telegram yesterday launched a series on shoddy forensics in Texas autopsies with a story titled "With little oversight in Texas, autopsies often careless." Here's a tasty excerpt:.
over the years, Texas medical examiners have misidentified bodies, botched examinations and had to do a double take on cases of individuals later exonerated by law enforcement. That has opened the door for innocent men and women to go to prison and killers to go free. The slapdash work of some medical examiners could also allow public health threats, wrongful deaths and preventable medical errors to go undetected, experts warn. 

"The work of the medical examiner’s office is just so slipshod," said Tommy Turner, the former special prosecutor who put a Lubbock medical examiner behind bars for falsifying autopsies. 
Critics say the medical examiner’s office is "the last bastion of junk science." The problems, they say, are similar to those that plagued the state’s crime labs for years: lack of performance standards, poor documentation, a shortage of qualified personnel and lax oversight. 

"The state does not keep track of MEs in any shape, form or fashion," Bexar County Chief Medical Examiner Randall Frost said. The state doesn’t even know how many certified forensic pathologists work in government offices, he added. 
And a medical examiner doesn’t have to be trained in forensics or pass a specialty exam to do an autopsy. All that’s required is a state medical license. That’s akin to having your family doctor do brain surgery, says a growing chorus of medical examiners.
Some of these problems are a function of state law, said the Startlegram understatedly: "One significant weakness: Texas law doesn’t require medical examiners to take notes, produce body diagrams or photograph evidence." Reporter Yamil Berard has compiled numerous examples of medical examiners failing to do any of those things and subsequently making errors and botching cases, often egregiously. Travis County's long-time, now-retired medical examiner, Robert Bayardo, told the Startlegram he "never took notes because he feared they would be subpoenaed." That's just unfathomable to me. The purpose of the examination is to generate information for court. But Bayardo apparently considered himself on the prosecution's team and thus feared the other side might obtain information that would help them. Un-friggin-believable.

Read the whole article for a long list of autopsy-error horror stories, beginning with the opening lines.
A sidebar to the story describes when autopsies are required in Texas:

Autopsies required
In Texas, inquests by medical examiners are required when:
■ A person dies within 24 hours of admission to a hospital or institution.
■ A person dies in prison or jail.
■ A person is killed or dies an unnatural death.
■ A person dies in the absence of one or more good witnesses.
■ A body part or body of a person is found and the cause or circumstances of death are unknown.
■ The circumstances of the death are suspicious.
■ A person commits suicide or is suspected of having done so.
■ A person dies without having been attended by a physician and the cause of death is unknown.
■ A child younger than 6 dies and the death is reported under state law dealing with child welfare services.
■ The attending physician is not certain about the cause of death.
MORE: Here are the followup stories in the series (last updated 9/30):
UPDATE: Find old Startlegram stories here.

Monday, September 28, 2009

Meet Phillip Linder: Craig Watkins' 2010 Republican opponent

The Dallas Observer has an interview with the only serious, announced Republican in the 2010 Dallas District Attorney's race who will apparently be the guy competing with Craig Watkins for the slot next year: Meet Phillip Linder.

Espeically after rookie DA Pat Lykos in Harris County held serve for Republicans while Democrats took judgships countywide in the 2008 elections, the GOP will likely see this race in Dallas and the 2010 county judge contest as their last, best chance for a countywide pushback in Big D. Though recent electoral trends favor Watkins, I wouldn't be surprised to see this become a hotly contested race.

Elected officials' guide to jail population management

Via Bob Cushman, here's a new publication from the National Institute of Corrections, prepared in cooperation with the National Association of Counties, to help counties better cope with jail overcowoding through more aggressive use of pretrial services:
There are more than a few counties in the state that could stand for their leaders to read and implement the jail-population reduction strategies described in this short manual. Most population growth in Texas jails since 2000 has been the result of expanded pretrial detention, not more crimes being committed. I may have more to say about this document after I've had a chance to give it a read, but for now I wanted to get the link out there.

"How to end the slaughter in Juarez?"

The title to this post is the headline to a troubling Houston Chonicle story about how resistant drug violence in Juarez has proven to military and police interference. It's also arguably a much more pressing foreign policy question for the United States than anything happening in Afghanistan. The article opens:
Seemingly impervious to any treatment, murder has settled into the sinews of this border city like a pestilence.

The thousands of federal soldiers and police injected into Ciudad Juarez haven't proved a cure. Neither have the remedies of sociologists, economists, criminologists or psychologists. Nor have the prayers, potions and petitions of its haggard citizens.

Gunmen claim dozens, sometimes scores, of new souls each day, hundreds by the month. There's no end in sight.

Bolstered by U.S. encouragement and money, President Felipe Calderon has made Juarez a laboratory of his strategy to militarily end the bloodshed and the drug trade alike. But rather than a showcase of success, Juarez has become, by many accounts, the poster child of failure.

“We saw the army come in and not finish anything,” Hugo Almada, an economist who's written books on Juarez's haphazard growth, said of this year's military offensive to end the slaughter. “So the question is now what?”

RELATED: From NarcoNews: Merida Initiative Police Screenings "Inefficient" and "Ineffective"

Too little data to draw conclusions about spike in Houston police shootings

One of my all-time favorite lines from a Simpsons episode came at the abrupt end of a chaotic story when the family tried to discern what the "moral" to it all was. Finally, Lisa suggested, "Perhaps there is no moral to the story," to which Homer eagerly agreed, replying it was "just a bunch of stuff that happened."

That bit of wisdom came to mind when I was reading Jim Pinkerton's story from the Houston Chronicle, "More people shot by Harris officers" (Sept. 28), presenting various (mostly self-interested) explanations for why Harris County saw a jump in the number of police shootings and death at the hands of police officers last year. There were a long list of people quoted in the article looking to find the story's moral:

The police union blames the economy, but also says it's because officers aren't getting enough overtime opportunities and also that, "This state, and the country, does a terrible job of taking care of the mentally ill." Activist Quanell X said too many of those shot were unarmed (the story contained no data one way or the other about that). The Harris County DA blamed new laws allowing more citizens to legally carry firearms. (No data to support that, either.) The president of the Harris County Criminal Lawyers Association "wondered if the shootings are a lingering effect from police confrontations with criminals mixed with the wave of Hurricane Katrina refugees."

There's really no evidence presented to support any of these theories, which is why personally I'm inclined to agree with the Sam Houston State professor quoted who thought it was too early to draw any hard conclusions:

One criminal justice expert said the increase is not significant, adding that alarms should sound only if the numbers climb steadily upward for another two years.

“You've got ... a short-term random fluctuation,“ said Larry Hoover, professor of Criminal Justice at Sam Houston State University, and director of the Police Research Center. “I don't think there's been any social, demographic, economic or crime change that explains the increase.”

Hoover noted that “overall, homicide rates fluctuate fairly broadly in a given jurisdiction, and it should come as no surprise that police-related shootings might do the same by chance circumstance.”

The problem is we're talking about really small numbers of total fatal shootings so even single-digit fluctuations appear statistically large, even if they may not be statistically significant. IMO it'd be wrong to assume this one-year spike represents a meaningful trend, but at the same time it'd be wrong to consider last year's number of fatal shootings some sort of goal or baseline. As the police union boss told the paper, “In law enforcement, we never want to discharge our weapon. But when we have to, it's inevitable that it's life or death ... I'd like it to be zero.”

Certainly, it'd be useful to answer some of the questions raised by those speculating in the story. Were there more unarmed people shot than usual? Were more of those shot legally carrying weapons, as the DA claims? Were there instances where not enough officers were on the scene because of understaffing, or where the person shot was in a mental health crisis? And how would those breakdowns come out applied to the last several years?

That information is for the most part knowable through public records, though it takes a lot of legwork to get at it and police departments are (regrettably) loathe to do it proactively. In Austin the American-Statesman at one point undertook an extensive analysis of use of force incidents in the capital that tried to answer some of those questions (though it didn't win them any popularity contests among officers). But you couldn't conclude too much from the topline data and off-the-cuff speculation presented in this article. Perhaps there is no moral. It could be just a bunch of stuff that happened.

Data don't match Austin police policy claims on investigating citizen complaints

It's interesting to learn that the percentage of sustained complaints against police officers has gone up under Austin Police Chief Art Acevedo, but there's something a bit squirrelly about attributing the increase to a new policy having supervisors investigate low-level complaints instead of Internal Affairs.

APD told the Statesman shifting to supervisor investigations "has resulted in a higher percentage of officers getting disciplined and has reduced the number of days such investigations take to conclude." But the policy only took effect this summer, while the numbers used to support it included year-to-year data. Reported Tony Plohetski at the Statesman ("Number of disciplined officers increases with supervisor investigation," Sept. 28):

Police department statistics showed that from July 2007 to July 2008, 69.8 percent of low-level allegations investigated by internal affairs detectives resulted in disciplinary action against officers. That percentage increased to 77.3 percent from July 2008 to July 2009, the first year of the supervisor inquiries.

Meanwhile, the number of days officials spent looking into such complaints went from 44 to 35 days.

During the same period, the number of residents who expressed dissatisfaction about the resolution of their complaints stayed about the same, according to the statistics. ...

Critics had raised several concerns last year about Acevedo assigning supervisors to investigate lower-level complaints against officers, including fears that the supervisors would be too lenient.

Police officials have said that requiring supervisors to investigate certain offenses will make them more accountable and that they could face punishment for failing to properly supervise. They also said it would free internal affairs detectives to investigate more serious complaints, including allegations of criminal acts. ...

Austin police still assign internal affairs detectives to review supervisor investigations once they end.

Police had wanted to put the new system in place last spring but delayed it until July at the request of Police Monitor Cliff Brown.

Brown had expressed concern about when interviews would be carried out with officers who are subjects of complaints and citizens who make the allegations. Representatives from his office can monitor such interviews.

Brown said last week that the change "hasn't been as bad as we thought it would be."

"The perception is still out there that it's not the fairest thing," Brown said. "The person who is doing the investigation is the same person who is close to the situation."

Shifting to supervisors doing investigations in lower-level complaints doesn't inherently bother me: It's not like Austin PD's Internal Affairs has done a great job over the years. What's more, I'd like to see more mechanisms in the department that hold supervisors accountable for their subordinates' actions. But if the policy was delayed until July, I don't see how you could credibly attribute the year-to-year increase to it. You'd need to see monthly baselines to make that assessment, and even then it's too soon and there's not enough data on the new method to draw strong conclusions. This is still an issue to watch; these numbers won't be the last word.

RELATED: Speaking of Internal Affairs units and when they should investigate, the Texas Alcoholic Beverage Commission is taking criticism in the wake of a controversial raid on a gay bar in Tarrant County for leaving disciplinary investigations to supervisors and rarely punishing its agents, according to a records review by AP :

An Associated Press review of the Texas Alcoholic Beverage Commission's internal affairs logs found that all but 39 of the 234 allegations of excessive force or unprofessional conduct lodged against agents since 2004 have been closed without disciplinary action. Moreover, in nearly every excessive force case reviewed by the AP, the accused agents' bosses were the ones who conducted the investigations.

The allegations ranged from officers improperly tackling, punching and using pepper spray on people. The agency has long had a reputation for heavy-handedness and garnered national attention in 2006 when state legislators forced it to cancel a program that aggressively sought to curb public drunkenness through stings that arrested people - even some bartenders - in bars.

The commission has recently drawn scrutiny because of a June raid at a Fort Worth gay bar, the Rainbow Lounge, that put a patron in the hospital for a week. Two agents and their supervisor were fired for violating agency policy, and an investigation is ongoing.

Collin 'restitution center' closing as failed experment

Following a statewide trend toward getting rid of them, Collin County's probation department will soon close its in-house "restitution center," reports the Dallas News. Here's how the story opens:

Pay the fine or do the time. That's been the philosophy behind the Collin County Restitution Center.

Here probationers delinquent on court-ordered fees and fines spend nights and weekends in jail until they make regular payments. Currently only four offenders remain in the program, one of only a handful left in the state.

And soon, after a decade in operation, Collin County's will close as well. Officials believe they can collect just as much money from probationers without the expense of keeping them overnight.

"We're going to try this and see if it's more effective ... and saves a little bit of money for the county," state District Judge Chris Oldner said.

In closing the center, situated inside the county's minimum-security jail, Collin is following a statewide trend. Like boot camps, restitution centers gained popularity two decades ago but are now widely rejected as ineffective, officials say.

Dallas County opened its restitution center in 1985 and closed it in 2004, officials there said. Tarrant County operated a restitution center from 1983 to 2001.

Sunday, September 27, 2009

Politics push toward expanded fingerprinting, biometric profiles

Three thematically related stories related to fingerprints caught my eye this morning and may interest Grits readers:
A common theme for all three is that there's intense political pressure to expand fingerprint systems and integrate them nationally. At the same time, fingerprint matching is a subjective craft and especially because of its wider use in immigration cases, in particular, demand for these services is increasing at a time when the science behind its use is being questioned. The story out of California highlights some of the hidden costs to agencies from this expansion.

Meanwhile, one wonders if "scent evidence" will be included in the comprehensive biometric profiles the FBI plans to create on the millions of Americans who come into contact with the justice system? According to Computerworld, "The next-generation FBI database system is under design by MorphoTrak and is expected to include DNA, iris scans, advanced 3-D facial imaging and voice scans among its multi-modal biometrics."

I Am Art Acevedo

Could the headline to this post, especially if written anonymously in a critical blog comment, lead to third degree felony charges? I didn't mean to harm Austin Police Chief Art Acevedo, but certainly I'd like to bring to ruin his plans to pursue anonymous commenters for potential criminal charges or civil litigation. It all depends on how broadly you interpret a new law that took effect September 1, described thusly by Chris Matyszczyk at Technically Incorrect:
It so happens that Texas passed a state law [effective] September 1 that specifically targets those who "use another person's name to post messages on a social-networking site without their permission and with the intent to harm, defraud, intimidate or threaten." Such willful behavior is now a third-degree felony.
This new law, HB 2003, was yet another "enhancement" bill (a capitol euphemism for criminal penalty hikes) passed out of the House Criminal Jurisprudence Committee - one of 40 new crimes and 36 penalty hikes the Lege created this year, according to the DA's Association.

I didn't watch these enhancement bills closely and neither did the media, but now that Chief Acevedo is threatening to seek prosecutions under the new law, it's worth looking at in more detail.

One fascinating thing about the bill stands out unrelated to the current topic: It's actually a defense to prosecution for using another's name to harm, defraud, intimidate or threaten if you are an employee of a commercial social networking site, an Internet Service Provider, an interactive computer service, a telecommunications provider, or a video or cable service provider. In that case, please, go right ahead!

One wonders why create a defense for companies but not a defense for, say, SATIRE or other First Amendment protected speech? How about an exception for public figures, as we have in libel law? I didn't watch the debate on this bill so I don't know if they just thought it wasn't needed or if nobody brought it up.

An example that arose soon after session, however, raised this issue somewhat prominently: This summer somebody created a funny but rather mean-spirited Twitter site in the name of Harris County DA Pat Lykos, changing it to FakePatLykos (which is still active) after the DA complained and Twitter shut it down.

It was just a gag and nobody with half a brain really thought it was her. But frankly some people are pretty dense, a few didn't get the joke (Jared Woodfill, I'm talking to you), and whether it's intended to "harm" her or not, certainly the author didn't create the site to benefit the DA but to essentially mock her. Is harm to reputation enough to trigger the bill's punishments? Quite arguably. And that's the rub.

There's a particular risk that political figures in law enforcement like the DA and the police chief could use such a statute to seek prosecution of anonymous critics whose speech should be protected. There are existing constitutional protections for that kind of speech but they aren't written in the statute and Texas lawmakers carved out no specific defense the way they did for corporations, leaving the lines for the courts to draw.

Perhaps simple political prudence in the end will be the biggest deterrent to misusing the law that way. It would just be a strategically stupid thing to do. The Statesman editorial board got in the best line of the debate last week on that score, urging Acevedo to accept counsel from George Bernard Shaw, who advised "never to wrestle with a pig. You get dirty, and besides, the pig likes it."

This is Art Acevedo and I approved this message.

DOJ grant pays for peer mentors during post-TYC reentry

Here's something they're doing with federal grant funds in South Texas that merits expansion statewide. According to the San Antonio Business Journal:

The Office of Juvenile Justice and Delinquency Prevention will award Big Brothers Big Sisters of South Texas $625,000 in grant funding over the next three years to provide mentoring services to juvenile offenders being released from Texas Youth Commission facilities.

The money will support Big Brothers Big Sisters’ “Second Chance Mentoring Project.” The program will employ a peer-mentoring strategy that will involve frequent contact between the mentor, Big Brothers Big Sisters staff, the youth offender and Texas Youth Commission staff. Youth offenders face multiple challenges when re-entering the community. Having the support of a peer mentor can help foster a different perspective for the offender, according to Big Brothers Big Sisters.

The Office of Juvenile Justice and Delinquency is a component of the Office of Justice Programs within the U.S. Department of Justice.

More innocent people accused by dog 'scent lineups' but FBI now using technique

Yet more people were identified this week who'd been falsely accused by dogs in "scent lineups"after the Innocence Project of Texas released a new report (pdf) on Fort Bend Sheriff's Deputy Keith Pikett and his bloodhounds. The Houston Chronicle describes the case of Curvis Bickham ("Scent lineups may be failing smell test," Sept. 27), where the defendant spent eight months in jail on capital charges:

“I lost my home, I lost my business, I lost my reputation,” Bickham said. “I have three little boys depending on me — ages 6, 8 and 9 — and they charge me with the most heinous thing they can charge a man with.”

Bickham, 49, gets emotional in the retelling of the October 2008 arrest and the painful months that followed before charges were dropped for lack of evidence.

The evidence against Bickham may have been slight, little more than a positive reaction from Keith Pikett's bloodhound. But it was enough to charge him.

Now Bickham has added his voice to the growing chorus of critics who call Pikett a fraud and the use of so-called scent lineups “voodoo science.”

“This has got to stop,” Bickham said.

Meanwhile, the Victoria Advocate identified two new cases where defendants spent up to a year in jail pretrail based on one of Pikett's scent lineups before they were cleared, including one who saw charges dismissed this week. Reported the Advocate ("More suspects point fingers at dog-scent lineups," Sept. 25):

On Wednesday, prosecutors dismissed a case against 26-year-old Jamal Miller. Miller was accused in a 2008 bank robbery, based entirely on scent evidence, said his lawyer, Damiane Curvey Banieh.

Prosecutors had video of the robbery, Banieh said, and her client looked nothing like the man in the tape. Miller was 70 pounds thinner and had darker skin than the man in the tape, Banieh said.

Most notably, though, Miller was clean-shaven because he worked at a plant and federal safety regulations prohibited facial hair, Banieh said. The man in the video had a goatee and mustache.

"It's amazing how bull-headed they were once they had the scent lineup," Banieh said.

Harris County prosecutor Angela Welton said the case was dismissed because of lack of evidence.

"Scent evidence was one piece of evidence that was looked at," she said.

Roetzel said her group, which works to free the falsely convicted, was also contacted by Ronald Curtis this week. The 39-year-old Houston man said he spent a year in prison for a crop of 2007 burglaries he did not commit.

"That was a year of my life wasted," he said. "I lost my car. I lost my job. My credit was ruined."

Again, the results of a scent lineup accounted for most of the evidence against Curtis. A video from the crimes clearly showed Curtis was not the burglar, he said.

Even so, just as Texas comes to grips with shoddy forensic "scent lineups" by law enforcement, it's somewhat disturbing to learn that the FBI is developing its own stockpile of scent evidence that's apparently being stored about suspects en masse, reminiscent of the scent warehouse in Cuba used to target political dissidents. According to a TV station in Albuquerque:

The FBI is using new technology at crime scenes that can literally bottle up a person's distinct odor.

The STU 100 Portable Vacuum Collection Unit has been in service in FBI offices for the past two years.

The unit collects scents "in such a way that can store that scent for later use," FBI Special Agent Darrin Jones told KRQE News 13.

The FBI used the unit to collect the odor of Joseph Burgess, better known as "the Cookie Bandit," who died in a shootout in the Jemez Mountains that also killed a Sandoval County sheriff's sergeant. According to the New Mexico Police Report on the shootout, the FBI had Burgess' clothing processed to maintain his distinctive scent.

The unit vacuums the odor onto sterile scent pads. The scent pads are then stored inside a sealed tube for later use.

I'd like to learn more about how and how often the FBI uses scent lineups by dogs and the scope of what must be a massive growing catalog of suspect scents. For that matter, I wonder if they've used Deputy Pikett?

Saturday, September 26, 2009

"Brick City"

Last night we watched the first episode of a new documentary from the Sundance Channel, "Brick City,"about fighting crime in Newark, N.J. produced by Forest Whitaker (available in the free movies on demand section for Time Warner subscribers).

It had been billed as Newark meets The Wire, though it's not living up to that yet. An extraordinary portion of the first episode was spent on an earnest if somewhat dreary hagiography of Mayor Cory Booker and setting up characters in a familial drama that emerged at the end of the hour. Perhaps down the line the series will get me to the thing that actually drew me to it - the Newark police director Garry McCarthy's reportedly successful use of more pro-active, data-driven policing as opposed to primarily reacting to calls. Only references to this in part one, but little detail.

There were brief hints -in total probably fewer than two minutes of air time - of difficulties faced by the chief in getting his officers to shift to the new approach. Scenes of managers struggling to understand what it means not to merely report data but to "analyze" and understand its implications. Another telling, brief scene (my pals over at CLEAT would probably be yelling at the screen) showed McCarthy intervening to stop a fired police officer from speaking to the Mayor at a public event. But overall the episode substituted rousing speeches by Booker for any real examination of the controversies that arose in the execution of McCarthy's new approach.

For example, implementation of public surveillance cameras usually is controversial. But the episode examined that controversy by filming a youth forum led and controlled by Booker, who seemed to treat the differences of opinion as a high school debate exercise, congratulating all for a good job at the end. Even with that soft-pedaled approach, about half the room raised their hands to say they didn't like the surveillance cameras.

We did learn a few interesting tidbits about what Newark does with its cameras. In most places where they employ public CCTV - as in London where they have thousands of cameras everywhere in the city - they're either tape-only or occasionally you'll see a smaller number (as in Dalllas) staffed with volunteers. Newark put up just 109 cameras, and their monitoring was staffed by on-duty officers. These hotspot locations were apparently aimed at turf-war zones in an ongoing Crips/Bloods feud about which presumably future episodes will focus.

While Booker and McCarthy credited the cameras with a reduction in murders - and sure enough, they captured some murders on tape - you couldn't identify anyone from the grainy pictures, so the primary benefit seemed to be the ability to immediately dispatch officers. Still, they may be squeezing the maximum effectiveness out of the tactic compared to many other places they're used.

Don't know if we'll watch the rest of the five part series - Kathy agreed the Cory Booker hagiography was pretty over the top and we both thought it needed much tighter editing - but perhaps future episodes tell more about what the police director is doing differently on the ground. Part one was a little like the Mayor's audition tape for "The Bachelor," or perhaps more accurately for New Jersey Governor or Senator, one suspects.

Friday, September 25, 2009

"How does the governor think Willingham killed his kids if not by arson?"

Michael Landauer at the Dallas News Death Penalty Blog poses two absolutely excellent questions about the Cameron Todd Willingham case, where arson testimony used to convict Willingham was later debunked by modern science after his execution for killing his children:

"How does the governor think Willingham killed his kids if not by arson?," and "Why is the prosecutor who took Willingham's life smiling?"

The question for the governor referenced this story where Perry actually put air quotes around "latter-day supposed experts" when describing to reporters why he still thought Todd Willingham was really guilty, something he said he believed even if the conclusion of arson was wrong. Scott Cobb noted in the comments that:

The author of the report to the Texas Forensic Science Commission was Dr Craig Beyler. He is chairman of the International Association for Fire Safety Science.

Dr. Beyler holds a B.S. degree in fire protection engineering from the University of Maryland, a B.S. in civil engineering from Cornell, an M.S. in mechanical engineering from Cornell, an M.Sc. in fire safety engineering from the University of Edinburgh, and a Ph.D. in engineering science from Harvard.

And there's an increasingly long and distinguished list of others who reached the same conclusions, including before Todd Willingham was executed, which oh by the way happened on Rick Pery's watch. If the governor continues this attitude of stubborn defiance, it may be a big enough deal to make "innocence" a gubernatorial campaign issue in 2010.

I particularly love the use of "latter-day"! It's one thing for GOP candidates in competitive primaries to disavow belief in evolution, but I've never heard that extended to arson science. I wonder if he subscribes to 18th Century medical practices as well? Sing along, everybody: Give me that old time science, it's good enough for me!

Head over to Michael's shop for the low-down on the smiling prosecutor.

Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence

I'm very much looking forward to the oral arguments forthcoming at the US Supreme Court on November 4 regarding Pottawattamie County vs. McGhee, et. al., in which SCOTUS will decide whether prosecutors have "absolute immunity" when they fabricate evidence and present it at trial.

Of course, prosecutors are concerned that opening themselves up to civil liability could have a "chilling effect," but quite frankly I want their behavior "chilled" if they're fabricating evidence or coercing witnesses to lie, which is what allegedly happened in this Iowa case. According to Raw Story:

In 1978, Iowa teenagers Curtis McGhee Jr. and Terry Harrington were sentenced to life imprisonment after being convicted of murdering a security guard. After serving more than two decades, both men were released after Harrington obtained "previously undisclosed reports from the Council Bluffs Police Department that pointed to the existence of another suspect for the murder," according to court documents.

The two men claim that in investigating the murder, Pottawattamie County prosecutors had coerced a witness to implicate them, "disregarded obviously false details" of the witness's accounts, "coached" the witness to give an account more consistent with the known facts of the case and then "coerced" other false witness testimony to corroborate that account.

County prosecutors, however, invoked "prosecutorial immunity," a concept University of Iowa College of Law Professor Todd Pettys described to Raw Story as "this notion that no matter what a prosecutor does at trial they can't be sued."

The blogs Simple Justice and Crime and Federalism analyze competing amici briefs in the case, which are all available here. The CATO Institute also weighed in, and there's a discussion over at the Volokh Conspiracy over the Department of Justice's contention that prosecutors enjoy "absolute immunity." Jonathon Adler points out that police officers, by comparison, have only "qualified immunity," noting that "it seems incongruous to defend the position that prosecutors should have greater immunity for deliberate misconduct of this sort than do police officers." Doesn't it, though?

Battered escapee was TYC alum

(SEE CLARIFICATION AT THE END) In 2007, the Texas Legislature changed the max age for Texas Youth Commission inmates from 21 to 19, sending 19-20 year olds who committed their crimes as juveniles to state prisons. But perhaps in 2011 - after the administration has had time to implement the Sunset bill and get its feet under them after a period of rough transition - lawmakers should rethink that decision..

Few criticized the move at the time, but in the next two years one heard increasing rumblings out of TYC - especially from the old-timers but also from then-Ombudsman Will Harrell - that this had been a mistake and that the move was sending lambs to the wolves, setting up those who were transferred for abuse or worse at the hands of older inmates. According to the Ombudsman, youth sent to TDCJ were "five times more likely to be sexually victimized, eight times more likely to commit suicide, and twice as likely to be attacked with a weapon or beaten by corrections officers,"

Which brings us to Joshua Barnes, the inmate who made a daring escape from the UTMB prison hospital in Galveston and was just caught Wednesday in Irving. Today is his 21st birthday and he's a TYC alum. I don't know why Barnes tried to escape, but looking at this photo taken at the prison hospital I think I can guess:

Yesterday I received an email about the case from a long-timer at TYC who writes:
I knew this kid. He was at Sheffield. This troubles me to no end to see him like this and making the news. He did really well in TYC but was one of those kids who needed our attention in the community. If they had not changed the law regarding aging out of TYC at 19 as opposed to 21, then I doubt this one would be looking at such a long prison term. This was a good kid. His parents gave up on him. His future is a shame. Take a look at TDCJ's Fugitive Watch web page. Take a look at this kid who looks like he was beat badly at TDCJ which is why he was at UTMB in Galveston. I think I'd run too if I took a beating that bad. He turns 21 years old tomorrow. This may not of happened if they didn't change that law in SB103. Take a look. Now, instead of a 35 year prison term, he's looking at adding 15-20 more years I'd bet.

We need to change the law and TYC should be able to work with these kids until age 21.
This escape has many folks questioning what went wrong, but it's quite possible that moving 19-20 year olds from TYC to adult prisons was a significant contributing factor that nobody's talking about.

CLARIFICATION: Whoops! Larance Coleman, the policy director at the Texas Senate Criminal Justice Committee, emails to say my contact at TYC gave me bad information. He writes:
Scott, major problem with your post, check the public conviction data at DPS, he was received in TYC in 2001, he was out on the street and arrested for an adult felony (possibly the same year he was released) on 10-13-2006. This would have made him 18 and if he was not a determine sentence youth TYC could have kept him until he was 21, since the new law was not passed until 2007. Although I do not know his TYC status, it appears that TYC made the release decision and as an adult he has committed one crime after the other, often days after his release from custody. Thanks.
NUTHER UPDATE: And here's a response from the original emailer:
The kid was on TYC parole status at a foster care home when he absconded and burglarized some homes. He could have had his parole revoked and returned to TYC. Instead they put him in jail, and while there, it appears he escaped and was charged with that as well. It was his first time on parole. It's not like he had multiple TYC parole revocations. If that were the case, I'd feel different. If his crimes were not property crimes, and instead murder, rape and so forth, I'd feel different. The thing that bothers me is that I think we should have had another crack at rehabilitating him in a TYC program.
So there's the crux of debate - over what happens to parole revocations for those convicted as juveniles. My apologies if the original post mischaracterized Barnes' TYC-related status.

Thursday, September 24, 2009

Harris County has big financial incentives to create new public defender

The Harris County Commissioner's Court next week (September 29) is scheduled to consider a proposal to create a public defender office, and in preparation the Texas Fair Defense Project yesterday issued a new "white paper" (pdf) detailing benefits the county could expect if it establishes one. (Ed note: After some confusion, it's been confirmed that this item has been placed on the agenda.) Out of the 17 most populous urban areas in the country, only Harris County has no public defender and relies solely on appointed counsel.

According to the report, Harris would likely see significant financial advantages by creating a public defender office. Once established, "these offices do not significantly raise indigent defense spending and in fact generate savings in other areas of the criminal justice system," particularly reducing jail expenses, which are a major concern for Harris.

Public defenders typically are cheaper per-case than appointed counsel, says the report, but jail costs arguably may be the most important area a PD office would produce savings. "For example, the Hidalgo County Public Defender Office reduced the average number of days between arrest and disposition of an imprisoned misdemeanor defendant's case from 15 to 11 days." In Kaufman County, officials attribute reducing the county's average jail population from 306 to 246 inmates their new public defender.

Using an appellate public defender similarly can result in jail cost savings by reducing the amount of time defendants spend in jail post-conviction:
Bexar County‟s Appellate Defender Office has been successful in shrinking the number of post-conviction days individuals spend in county jail by expediting court proceedings and implementing filing deadlines that often are in advance of the 30-day time period allowed under the Rules of Appellate Procedure. These innovations have decreased the average time inmates spend in Bexar County custody after conviction from six months to 55 days. As a result, inmates are transferred to the Texas Department of Criminal Justice (TDCJ) more quickly ... and the County yielded a $531,000, savings in incarceration costs between October 2007 and August 2008 alone.
Because Harris County currently sends inmates to other counties and to a private prison in Louisiana, TFDP estimates that for every reduction of ten prisoners in the jail, the county saves $10,800 per month in money paid to other jail systems.

PDs also offer greater financial predictability on indigent defense and reduce administrative costs, says TFDP, because they "dramatically reduce the number of decisions judges have to make about attorney appointments, training and experience qualifications, caseload management and fee vouchers," which translates into savings in the time and money spent by court officials performing these functions.

In addition to the financial benefits, the paper argues that creating a public defender office would improve oversight of appointed attorneys and give decisionmakers more information about their activities.

Currently some appointed attorneys maintain caseloads that are far greater than the maximum recommended by the National Legal Aid and Defender Association. TFDP cited one attorney (who was paid $1.9 million over an eight year stretch) who carried as many as 12 capital cases in a single year as well as an above-guidelines caseload of non-capital felony clients. The Houston Chronicle reported in May that about a third of attorneys who take felony appointments in Harris have more appointed clients than recommended by these guidelines.

Further, appointed attorneys may be less likely to visit their clients in jail before going to court. Citing courtroom observations by a staffer in 2008, TFDP says that "attorneys frequently fail to meet with their clients promptly and in advance of formal court proceedings" and that "many lawyers clearly had never met their clients before the clients' first court date." (They knew this because "lawyers would call out client names, ask clients to identify themselves, and then introduce themselves to the clients," according to a footnote.)

PD offices also boost defense access to investigators. Texas public defenders from 2003-2005 spent between $38 and $49 per case on investigators in felony cases, according to a study out of Texas A&M, while cases with appointed lawyers saw $17-$18 spent on investigators per case.

PD offices increase professionalism, TFPD argues, by offering entry level positions and opportunities for advancement that enable them to recruit and develop young talent just like prosecutors, as well as offering better training and intangible but important benefits from greater institutional memory. They also allow specialization in areas where clients have "special needs" - particularly in cases involving mentally ill defendants (who represent about a quarter of defendants in the county jail, to judge by how many are taking psychotropic medication).

TFDP could have suggested another strong argument for creating a public defender office that was made Tuesday by Stephen Bright of the Southern Center for Human Rights in testimony (pdf) before Congress: Preventing the conviction of innocent people. Specifically citing Harris County's example, Bright said that sloppy representation by appointed counsel who take on too many cases increases the chance that innocent people will be convicted who receive inadequate representation.

Hopefully the Harris Commissioners Court will heed the arguments in this white paper and move forward next week toward creating a new defender office. So far there's been no media coveage of the TFDP report, so I hope commissioners will take the time to educate themselves on the subject. Given their chronic jail overcrowding problems, it might be a chance for Harris County to kill more than one bird with a single stone.

RELATED: See this letter (pdf) to the Harris County Commissioner's Court from the Texas Criminal Justice Coalition and an array of religious and community groups supporting the creation of a public defender office.

Wednesday, September 23, 2009

Corruption, 'cartel' violence rampant in Mexico as drug policy debated in El Paso

Here are several stories related to Mexico and the drug war that recently caught my eye. First, check out this coverage from the El Paso Times of a conference on the drug war currently going on in Sun City:Meanwile, the Mexican army has found more evidence of widespread corruption in Nuevo Leon state among police and the press, reports AP:

Four people were arrested and $5 million in U.S. and Mexican currency was seized during the raid Monday in the industrial city of Monterrey, according to an army statement. Soldiers, acting on an anonymous tip, also seized drugs, money counting machines, cell phones and five vehicles.

Monterrey and the surrounding state of Nuevo Leon, which borders Texas, have been a focus of the federal government's crackdown on police corruption.

The cash and seized items were displayed at military barracks north of the city, with dozens of white envelopes containing some of the cash arranged in rows on a table.

Envelopes at the front of the rows had yellow post-it notes with the names of police precincts in Monterrey and other municipal forces in Nuevo Leon state. One was labeled "press."

In what could be viewed as a disturbing, watershed event, an American who was apparently involved in the drug trade was kidnapped on the US side and gruesomely murdered in Juarez, AP reports:
A body found with its severed arms crossed and placed on its chest in Ciudad Juarez, Mexico, was identified by authorities Wednesday as a Texas man kidnapped from his home.

Sergio Saucedo, 30, was kidnapped from his Horizon City house outside El Paso last Thursday. His mutilated body was found Tuesday in the Mexican border city across the Rio Grande, said El Paso County Sheriff's spokesman Jesse Tovar.

"It's apparent that the spillover has occurred," Tovar said of the drug violence plaguing Juarez and much of Mexico. ...

Saucedo's body was found dumped in the street late Tuesday with his severed arms placed on top of a cardboard sign on his chest, said Arturo Sandoval, spokesman for a regional prosecutor's office in Juarez. He said the killers stuffed plastic bags into Saucedo's mouth and taped his eyes.

The sign was immediately removed and authorities have not revealed what it said. Drug cartels often leave messages with victims they kill.

Ciudad Juarez is Mexico's deadliest city with more than 1,300 drug-related killings this year.

The Christian Science Monitor today offered up an interesting piece describing how many Latin American countries are increasingly breaking with US policy on the war on drugs and following their own path toward decriminalization.

Finally, as somebody who majored in economics in college I found interesting this analysis from the New York Times critiquing the use of the term "drug cartel." While the difference is purely semantic, it's certainly the case that these aren't "cartels" in the same economic sense as OPEC or other cartels whose aims are to control prices. These are criminal gangs, or perhaps "organized crime syndicates," but from a purely technical perspective, they're not "cartels." I'm not sure why such linguistic distinctions matter but I agree it's a non-precise use of the economic terminology.

UPDATE: See more coverage of the El Paso conference from Newspaper Tree.

Emptying prisons makes Wired magazine 'Smart List'

Earlier this year I was asked by Texas Monthly to submit a "Big Idea' for Texas and I suggested radically reducing the state's prison population:
Texas should dramatically slash its prison population and eliminate a majority of felony crimes. We have criminalized too many different activities: Texas has 2,324 separate felonies on the books, including 11 involving oysters. From 1978 to 2008, Texas's population increased 80 percent, while the prison population increased 595 percent. If prison growth had matched population growth, around 40,000 would be in Texas prisons today - instead the number is about 155,000. Texas must stop trying to manage every social problem through the justice system and re-empower its civil courts and regulatory functions to handle more conflicts among citizens.
So I was pleased to see a similar suggestion in the current issue of Wired magazine as part of its cover feature "The Smart List: Twelve Shocking Ideas That Could Change the World." The list included a suggestion from criminologist Nils Christie to dramatically reduce incarceration rates. He offered this interesting observation:
"I don't like the term crime—it's such a big, fat, imprecise word," says the renowned University of Oslo criminologist. "There are only unwanted acts. How we perceive them depends on our relationship with those who carry them out."
Regular readers know the United States far outstrips all other nations in terms of incarceration (and Texas' rates far exceed the national average). America has 5% of the planet's population but incarcerates 25% of its prisoners. The Wired article included this graphic comparing US incarceration rates to various other countries:

Taser death in Laredo

When Tasers first came out they were billed as a non-lethal alternative to firearms.

In reality, both parts of that claim were false. People have died from Taser shocks, and far from being an "alternative" to firearms, most police Taser discharges occur in situations where shooting the suspect with a gun would not be justified under standard police policies. Today Taser has backed of the "non-lethal" claim and now markets the weapon as "less lethal," which is certainly a more accurate portrayal.

The latest Taser-caused death in Texas occurred Monday in Laredo, according to the Houston Chronicle:
Three Laredo police officers are on administrative duty pending investigation of the death of a man they shocked with a Taser gun.

Police spokesman Alberto Escobedo says the three officers answered a pre-dawn criminal mischief report Monday and confronted 44-year-old Richard Battistata. That's after the man allegedly had broken a bedroom window and entered an apartment.

Escobedo says that during the confrontation Battistata turned combative and one officer used the Taser to subdue him.

Instead, Battistata became unresponsive and police called an ambulance. He died soon after arriving at Doctors Hospital.

I generally support deployment of Tasers but I also think most departments' use of force policies allow them to be used WAAAAY too early on the so-called "use of force continuum." Tasers should never be used merely to force compliance with officer commands, particularly in a case like this where three officers were on hand to subdue the unarmed suspect. But from what I can tell, forcing compliance appears to be a primary way officers use the weapon in a large number of the reported incidents.

Tuesday, September 22, 2009

Texas Innocence Project report discredits unscientific dog 'scent lineups'

Yesterday the Innocence Project of Texas released its report criticizing "scent lineups" used by Fort Bend County Sheriff's Deputy Keith Pikett, who as regular readers know has seen his dogs' identification of suspects debunked in several recent, high-profile cases, including two capital murders. See a copy here (pdf) and initial coverage from the Houston Chronicle and the Victoria Advocate. The brief report, written by IPOT legal director Jeff Blackburn, is well worth a full read but I thought I'd point out a few highlights.

One new fact-bite in the report concerns the use of scent lineups in communist Cuba, where "secret police have amassed thousands of bottles of scents taken from anti-Castro slogans painted on walls and other such 'crime scenes' and are using them as 'proof' against dissidents." A footnote pointed out this recent Miami Herald story on the use of scent lineups in Cuba, where we get a glimpse of the totalitarian origins of this bizarre practice:
the use of 'criminal odorology' started in the Soviet Union in the 1960s, was developed by the former East Germany and in 1972 was established around Communist-ruled Europe.

After East Germany collapsed in 1989, West German investigators found a warehouse packed with tens of thousands of sealed jars containing bits of cloth impregnated with the odors of criminals and dissidents -- used to identify or track them.
(See an academic paper in Spanish on the use of scent lineups in Cuba.)

But the meat of the report related to Deputy Keith Pikett, who along with his wife undertook training pet bloodhounds as police dogs in the early '90s "on their own without using any known or established program."

The most extensive scientific testing of "scent lineup" methods has occurred in the Netherlands says IPOT, citing this 2002 New York Times story. They use elaborate methodologies which include controls that Deputy Pikett has not adopted.

When he gets into the courtroom, Pikett has sometimes misrepresented his credentials. In one of his first big cases he "testified that he had a Bachelor of Science in Chemistry degree from Syracuse University and a Master's degree in Chemistry from the University of Houston. This was a lie: Pikett has never received degrees from either institution." In the case where appellate courts formally affirmed his status as an expert witness, he also misrepresented himself as having a masters degree in Chemistry. Defense attorneys in that case did not challenge his testimony.

Pikett asserts outlandish success rates for his dogs, claiming one of them had only made one error in 2,831 lineups. "According to the research done by the Dutch police and other experts in the field, this is absurd. Even using rigorous training methods, experts believe that the best dogs worked in perfectly controlled conditions can only be right approximately 85% of the time."

According to the report, "Pikett has also claimed that his dogs can identify scents more than a decade old and that they can follow scents left by cars - claims which have been criticized by experts in this field."

The report quotes police dog experts from the around the country (including from the National Police Bloodhound Association) and from the UK harshly criticizing Pikett's methods. One called him an "unprofessional charlatan." Another concluded Pikett had "intentionally misspoke concerning the capabilities and expertise of his scent discriminating bloodhounds in given situations."

Finally, the report calls on police agencies and prosecutors to immediately stop using scent lineups by Deputy Pikett, and for the Attorney General to "conduct a full and complete investigation into every case in which scent lineups have been used, and to aid in the release of any person convicted on such testimony."

The recommendation about the AG vetting these old cases is particularly salient. Who knows how many false convictions have been obtained using this type of garbage evidence?

See prior, related Grits coverage:

Monday, September 21, 2009

A conservative case for reducing incarceration

Via Think Outside the Cage, I was pleased to discover this remarkable editorial from the right-leaning Colorado Springs Gazette analyzing partisan debates over corrections spending in that state ("The case for early prison release plan: We can't afford lock 'em up politics," Sept. 16). Here's how the op-ed opens:

Seldom do Republicans clamor for more state spending, and more government bureaucracy, in opposition to Democrats. That’s exactly what’s happening in Colorado, however, as leading Republicans blast Democrat Gov. Bill Ritter for his proposal to save money by shrinking the prison population.

GOP gubernatorial candidate Josh Penry called the governor’s plan “Ill-conceived and reckless.” Colorado Attorney General John Suthers said the plan “will seriously compromise public safety.”

Colorado, like the rest of the country, has been on a foolish incarceration spending spree for years. Our state’s bloated prison bureaucracy has contributed to this country’s dubious distinction as having the largest prison population in the world — even larger than the prison population of China, which has more than four times the general population of the United States.

The editorial writers go on to make a strong, conservative case for reducing expenses on incarceration, particularly incarceration for drug-possession offenses.

Convicted felons are freedom-robbing scum who deserve no sympathy. Government should punish them and try to prevent them from causing more harm. The governor, the commission, and the police chiefs’ association aren’t trying to move our state in a soft-on-crime direction. Instead, they are trying to move Colorado in a direction that is realistic and fiscally responsible, given the condition of the economy. Prisoners are pure liability. They cost Coloradans 10 percent of their tax money and produce nothing of significant value. The less we spend on prisoners, the more we can spend on roads and bridges and higher education — assets that help facilitate the creation of wealth and therefore good jobs.

In the past 15 years, tough-on-crime politics have led to runaway spending on corrections. Just 15 years ago, Colorado prisons housed roughly 9,600 convicts. Today, the population is closing in on 25,000. While the prison population has more than doubled, the state’s general population has grown by only a third. As we spend 10 percent of the state’s budget on prisons, we spent only 4 percent in 1995. All this in an era that has been marked by dropping crime rates, a phenomenon related directly to an increase in the average age of the population.

Going forward, state leaders should consider all possibilities for minimizing Colorado’s prison population without endangering the public. Drug enforcement should be a low priority, in order to keep nonviolent dealers, smugglers and other habitual drug offenders from becoming expensive wards of the state. The Legislature should legalize marijuana. State leaders should familiarize themselves with all new and emerging GPS tracking gadgetry, which gives law enforcement officials the opportunity to know the exact location of convicts at all times. The state should reserve prison space for the long-term incarceration of the most violent offenders. ...

Never should our state become the least bit soft on crime. Never should state politicians busy themselves with compassion for criminals. But the days of spare-no-expense, lock-’em –up-and-throw-away-the-key politics are over. It’s an indulgence we can no longer afford.

These arguments pretty much exclusively draw on conservative ideology for reform proposals, right down to the writers' view of prison inmates as "freedom robbing scum." And yet, their proposals for de-incarceration jibe closely with suggestions from sources more closely associated with the left. IMO that's because any rational analysis of the economics of incarceration unavoidably leads to many of the same conclusions, no matter what point of view you subscribe to.

Texas' example has shown there's a lot of room for finding common ground between conservatives and liberals on criminal justice reform. But political actors must be able to set aside partisanship to focus on public safety and the wisest stewardship of taxpayers' money.

State prisons are Abilene's biggest water user

This summer's drought elevated water-usage issues to the fore throughout Texas. Given current population growth and the fact that we're already facing shortages, it's not difficult to predict the crisis will only worsen in the next few years.

So I was interested to see this story from the Abilene Reporter News ("Water use likely to rise this year," Sept. 19) indicating that the Department of Criminal Justice is the largest water user in Abilene, with two TDCJ units soaking up 240.7 million gallons last year. "Usage at TDCJ outdistanced Dyess Air Force Base’s nearly 236.7 million gallons, Coca-Cola’s 94 million gallons, Abtex Beverage Corp.’s 67.1 million gallons and Abilene Independent School District’s 66.9 million gallons," according to the Abilene Reporter-News.

This is a bit of a sleeper issue that I'd not considered previously. Spokesman Jason Clark "attributes TDCJ’s high usage in Abilene to the approximately 5,000 offenders — as well as 900 employees — at the two prison units. The Middleton Unit also does all laundry for the Robertson Unit, Clark said." That means these units between them are using a little more than 48,000 gallons per year per inmate.

Abilene residents used 5.7 billion gallons of water last year, and more than one out of every 23 gallons went to TDCJ. With 110 other TDCJ prison units around the state, I'll bet that's not the only place where TDCJ is the biggest community water user. Indeed, it's quite possible that, in aggregate, TDCJ is the largest water user in the state (possibly in competition with the Department of Defense).

Clark told the paper TDCJ is already taking some steps to reduce water use:

Clark said the TDCJ has taken steps to conserve water, including replacing 306 shower heads with “economizer shower heads,” which use 1.5 gallons of water per minute — with some having timers. TDCJ has also wrapped steam line pipes at the facilities with insulation to “help with evaporation and conserve energy as well as reducing the amount of water required when heat isn’t lost,” Clark said.

Clark said TDCJ has an active program statewide to reduce utility costs and the amount of usage and continually encourages all manners of conservation.

I don't know exactly what all TDCJ is doing to reduce utility bills, but this issue isn't going away anytime soon. Keeping the water flowing will likely be a source of increased expense in the coming years. Texas faces a growing water shortage and at root there are two ways to address it: Rationing or pricing. So far, rationing has been the method of choice for most local governments and those restrictions mostly fall on residential customers, not institutional users.

By contrast, large commercial and institutional water users typically get volume discounts compared to residential rates. But if we have too many more repeats of this year's rain shortage, the day will come when rationing is inadequate and utilities begin charging higher prices to their most voluminous customers to enforce conservation goals. And TDCJ appears to be among the most voluminous of all.

Sex offender registration applies scarlet letter to juveniles

The Houston Chronicle today has a feature on the issue of juveniles in the state sex offender registry. Juvenile sex offenders must remain on the registry 10 years after the end of their sentence. Reports the Chron ("A long wait to get past crime," Sept. 21):
About 3,600 people on the state's registry were added as juveniles, according to the Texas Department of Public Safety, which administers the registry. Eleven were 10 years old when they registered.

The registry has 26 juveniles who are currently 13 to 16 years old, according to state records. Of the more than 340 juvenile registrants who live in Harris County, three are currently 16 years old, records show.

Many people are not aware that juveniles can be registered as sex offenders in Texas. State legislators made registration mandatory for adults and juveniles when they established the sex offender registry in 1991. Texas does not have a minimum age for juvenile registration, but the minimum age for prosecution is 10. ...

Juvenile registration has been debated by lawmakers, child advocates and crime victim proponents for the past decade. Those who support it contend the community has a right to know about dangerous sex offenders — adult or juvenile. Critics argue that the negative consequences on juveniles and their families far outweigh any benefits to the community. No research suggests registration makes communities safer, they said.

Access to court records for juveniles with delinquent backgrounds are generally restricted to protect them from shame and to give them a fresh start. But anyone can access the state's online sex offender registry and see the juvenile's criminal charge. The registry, which went online in 1997, also makes available the juvenile's address, where he attends schools and annual mug shots.

A requirement in the federal Adam Walsh Act to increase juvenile registration to 25 years after the offense was one of the balking points that caused Texas to request an extension for compliance, the paper reports: “We're not sure if we're ready to pass the Adam Walsh Act,” said Sen. John Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee. Registration “should be left up to the states.” That federal legislation would eliminate discretion currently enjoyed by Texas judges to remove well-behaved juveniles from the registry or to waive registration at sentencing.

Time magazine profiles Texas crimjust reforms

Time magazine this week has a feature calling Texas the "kinder, gentler hang 'em high state" thanks to the passage of the Tim Cole compensation act for those convicted and exonerated and legislation to create a new office of capital writs. Here's how the story opens:
Tim Cole couldn't tell his own story and so his family recounted the saga to the hard-bitten Texas legislators last spring. The convict had insisted he was innocent right up to the day he died. He had refused parole because that would have required him to admit he was guilty of raping a fellow student at Texas Tech University. The ordeal was wrenching: Cole wept during the nights as he awaited a trial that would sentence him to 25 years in jail. Twice during his prison term he was found unconscious in his cell, the result of the asthma that had plagued him since childhood. The third time he suffered an attack, Dec. 2, 1999, he died from heart failure. Then, in 2007, another man confessed to the crime and Cole was declared innocent. The Texas lawmakers wept at the tale; and as a result, the state that has the reputation of being toughest on crime came up with one of the most generous and supportive programs to compensate those wrongfully convicted: the Tim Cole Act.

"I think Tim Cole's story moved a lot of people," says Lubbock attorney Kevin Glasheen, who represents 12 men exonerated after serving lengthy terms for rape. "As far as the politicians go, there are a lot of Republicans who do not like abusive government power." But the legislators from both parties did more than shed tears. Apart from the Tim Cole Act, they passed a second law this spring creating a well-funded office of expert appellate lawyers to represent death row inmates, a move to overcome the tales of sleepy defense attorneys and inept lawyering. The two new laws are now being implemented and their backers hope they will mitigate the state's hang 'em high image.
Of course, the last thing on anybody's mind at the Texas Legislature was trying to "mitigate the state's hang 'em high image." If anything, legislators were worried that reform bills might damage their reputations as "tuff on crime." Time perhaps flatters its readers in the rest of the country that Texans in public office give a tinker's damn about their good opinion.

Still, its good to see these reform efforts getting national recognition. While Texas historically deserves its super-tough reputation, recent years have witnessed countervailing trends that fly in the face of that stereotype, even if Time magazine didn't notice until now.