Harris County judges vote next week on creating new mental health court

An editorial in the Houston Chronicle supporting creation of a Harris County mental health court mentions that on Wednesday, November 4:

[Harris County] criminal district court judges will vote whether to approve a detailed plan for a new “mental-health court,” a program that promises to cut crime, take a humane stance toward mental illness and save taxpayer money all at the same time. If the judges vote yes — and if Harris County commissioners then budget money for the program — the court could begin operation June 1.

The plan, created by 184th State District Court Judge Jan Krocker, a Republican, and more than a hundred mental-health stakeholders, would work like this: If charged with a non-violent felony, someone diagnosed with a significant cognitive impairment or mental illness (schizophrenia, bipolar disorder, post-traumatic stress disorder and the like) would quickly be offered a choice: regular court or mental-health court. Defendants not competent to make the choice aren't eligible; those defendants are either sent to a state hospital or medicated in hopes that they become competent to stand trial.

Staffed by a judge, lawyers and caseworkers trained to deal with mental illness, mental-health court would be far less adversarial than regular courts. Both the prosecution and defense would agree that the goal is for the defendant to successfully complete the treatment plan prescribed by the court's psychiatrist, including mental-health treatment and anything else, such as drug-abuse counseling, health care or job training, deemed necessary to straighten out the defendant's tangled life. Court social workers would help find housing and health care.

And the court's judge would monitor the defendant's progress — meeting with him or her every week, if necessary — and could punish failures to comply with jail time.

Travis County's mental health court appears to be having success, so hopefully the new one in Harris will, too. The biggest barrier to expansion in Houston, says the Chronicle, may be a lack of community based treatment resources:

The Harris County proposal suggests starting small in 2010, sending 26 percent of a narrowly defined group of eligible defendants — about 200 a year — to the new mental-health court. More than that, notes the planning team, would overwhelm the already strained patchwork of social services that provide support for Texas' mentally ill. The court, after all, has to be able to refer its defendants somewhere for help.

Stronger probation methods and problem solving courts seem tailor-made for so-called "frequent flier" defendants who are likely to wind up on the mental health docket, but only if community-based services are adequately supported. Some have been incarcerated dozens of times, so it's not like jailing them is keeping the public from interacting with them. But their past interactions with the jail, as the county's largest mental health provider, nobody ever helped them how to control the underlying illness under supervised conditions where they're held accountable for things like staying on their meds and keeping a job. Instead, probationers were left on their own to sink or swim.

The shortage of services isn't just a problem in H-Town. The public health system has gotten so used to treating mental illness in county jails that community-based resources have atrophied, even though they're cheaper and in most instances more effective. Simply creating a new court docket won't help in the long run if the service shortage isn't addressed, but perhaps the court can also be an effective advocate to communicate with the commissioners court what resources are needed to manage this large subpopulation of offenders that soaks up a vastly disproportionate share of criminal justice resources.

Prosecutorial Misconduct Roundup

Here are several recent stories related to prosecutorial misconduct that merit Grits readers' attention:

• Joe Palazzolo, Main Justice: Justice Department Opposes Expanded Brady Rule
• Radley Balko, Reason: No Accountability: Why are bad prosecutors so rarely punished?
• Brian Rogers, Houston Chronicle: Harris County prosecutor accused of hiding evidence
• Chuck Lindell, Austin Statesman: CCA upheld Travis prosecutorial misconduct finding by appellate court

Training tomorrows narcos on the US taxpayers' dime: Importing Plan Colombia to Mexico

Seeing the USA Today story, "US training bolsters Mexico's war on drugs" (10/28), I couldn't help but think the headline writer perhaps failed to grasp the irony.

Since July, a total of 81 U.S. law enforcement officers have come here on three-week shifts to teach such basic police skills to their Mexican counterparts. The program, part of a $1.4 billion U.S. aid package for Mexico, marks a major escalation in American involvement in the drug war here.

It's also a first for Mexico, where the government has historically been reluctant to allow U.S. agents or troops on its soil because of animosity that dates to the 1846-48 Mexican-American War.

"This is really historic," said Noe Sánchez, academic director at the academy. "We've never had this kind of international cooperation before."

Well, almost never. While US trainers haven't previously worked in Mexico, American special forces officers at the School of the Americas in Fort Benning, GA, notoriously trained the core group that made up the original Los Zetas. They defected, trained hundreds of others in the same tactics, and became the enforcement arm of the Gulf Cartel, later freelancing their bloody services to the highest bidder.

So what guarantee is there that we aren't just training the next generation of narco-crooks who will wind up fighting for the drug cartels? About 150,000 Mexican soldiers have allegedly deserted over the last six years, and it's not like there isn't a strong job market demanding their services at higher rates than the government can pay.

Can training underpaid police be enough when the cartels can hire them away for double the pay? I've got a nagging fear these 81 trainers will turn out to be this generation's equivalent of John Paul Vann and the advisers sent by Kennedy to Vietnam, dragging the United States into a conflict from which we can't disentangle ourselves. I understand why they're there, and a more professional police force is needed in Mexico, but corruption among Mexican police has much more to do with economics than training.

I was also a little displeased they hired a private contractor to do the training and surprised the Mexican government went for the idea. According to USA Today:

So far, 2,052 Federal Police have graduated from the training program, and an additional 1,051 are taking classes now, program administrator Rafael López said.

The $4.5 million program is funded by the U.S. State Department's Narcotics Affairs Section and run by Kaseman LLC, a Virginia-based contractor. It also brings in police from Colombia, El Salvador, Spain, Canada, the Czech Republic and the Netherlands. The U.S. government is also providing aid in the form of helicopters, X-ray trucks and computer systems. ...

Colombians make up the bulk of the other foreign instructors. Many are graduates of similar U.S. training efforts in Colombia, where Plan Colombia — a U.S.-backed program — has helped the government beat back leftist rebels and drug traffickers.

Ariel Lozano of the Colombian National Police says he went through basic training with a U.S. instructor four years ago. Now he's a teacher here.

Well, everybody knows how brilliantly Plan Colombia has worked - with $6 billion down the toilet and more drugs than ever on the market to show for our troubles - so this all ought to work out well, don't you think? Why do we keep repeating the same failed strategies, pretending, somehow, this time they'll work? This is truly America's hour for not comprehending.

Fort Worth seeks non-punitive alternatives on graffiti

Fort Worth police have been fighting graffiti for years, but despite their best efforts, graff has exploded since 2005, reports the Star-Telegram. The "city cleaned up more graffiti last year than it has in the previous five years." The volume of graff simply outpaces law enforcement's ability to arrest and prosecute, with a 62% increase in graffiti incidents just in city parks, but just a handful of prosecutions:

The Parks Department cleaned up 7,633 sites in fiscal 2009, mostly using money from the city’s sales tax devoted to crime prevention. That’s an increase from 7,586 sites the year before and 4,710 in 2005. It’s historically been difficult to catch and prosecute taggers and graffiti vandals, though. Police reported 59 juvenile cases and 16 adult cases in 2009.

Given how much graffiti occurs and how seldom perpetrators are caught and prosecuted, clearly solutions must come from other quarters besides law enforcement, so I'm glad to see Fort Worth seeking more non-punitive, education-based solutions:

Long term, it’s less expensive to prevent the problem, Assistant Parks Director Melody Mitchell said. The Parks Department and Fort Worth schools are using curriculum developed by the Keep America Beautiful Foundation in after-school programs. Between 2,500 and 3,000 students in grades three to five have gone through the program.

For older students, city officials are developing an educational program for first-time offenders.

The city has also included money for outdoor murals in this year’s public art program, with the belief that young people are less likely to vandalize walls and buildings that already have art on them.

Moncrief and other council members pressed city employees to be more creative. Moncrief suggested working with utility companies to help spot vandalism. Councilman Sal Espino suggested that the educational programs include material about historical buildings.

"I think if the kids learned the history of these buildings, it would go along with what Keep America Beautiful is teaching," he said.

Increasing money for outdoor murals, in particular, should help displace graffiti, as will expanded after-school programming for youth, whether the Keep America Beautiful curriculum or more traditional activities. IMO the next step should be to create a system to promote invited graff in underutilized public spaces or where property owners don't object. Nothing will "solve" the problem in the near term - it can only be managed - but current approaches don't appear to be making a dent, and boosting penalties hasn't helped.

That's why I'm glad to see at least one Texas city looking to solutions beyond arrest and incarceration for this common, non-violent offense. It'll be interesting to watch how well Fort Worth's new programs work compared to other jurisdictions. Enforcement is important, but it's just one leg of the stool. It works best combined with rapid cleanup of uninvited graffiti and the proliferation of acceptable artistic and social outlets for youth.

See related Grits posts:

• Toward a restorative graffiti policy
• Graffiti solutions: A cost-benefit analysis
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Invited graffiti: Solution or enabling for unwanted tags?
• Grading graffiti? What do youth want?
• Paint responsibly: Museum offers hands-on graffiti exhibit
• Allowing invited graff best way to reduce unwanted graffiti
  
• Mexico prevents graffiti by encouraging it at El Azteca Stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings
• Gittin' tuff on graffiti spawns more of it in Corpus Christi
  
• Austin lags on important third component of graffiti policy
• Kids do less art in school, more in streets; Lege reacts with hammer
  

Maggie Lee for Good: One day, one deed

Today would have been Maggie Lee Henson's 13th birthday, and I still can hardly believe she won't see any more. At left, see a picture from her 12th birthday.

Regular readers will recall that over the summer, my niece Maggie Lee was tragically killed when a church bus she was riding on its way to youth camp flipped over and landed on her. She spent three seemingly interminable weeks in a Mississippi ICU, mostly in an induced coma, before finally giving up the ghost. But in the meantime, her story spread virally across the internet, with thousands of people (including many the family didn't know) tracking her progress on Facebook and through a website called Caring Bridge. The story was distributed so widely on listservs and Facebook pages that it garnered its own Snopes.com entry confirming the details.

Maggie Lee's death was an unthinkable blow to the family and a true test of faith for my brother John, a Baptist preacher, and his wife Jinny. It's impossible to endure the death of a happy, healthy, vibrant child and not think, "It's not fair. Why would God let this happen? What good could possibly come from such a tragedy?"

After she died, a friend of the family suggested that they honor Maggie Lee by attempting to get 1,300 people to commit to performing an act of kindness on her 13th birthday. Her Mom posted the suggestion on the Caring Bridge site, and almost immediately several times that number pledged to participate in the one-day commemoration, dubbed "Maggie Lee For Good." Check out the website created for the effort. Pretty soon, they upped the goal to 13,000, which they also topped.

As of today, her birthday, some 17,800 individuals have signed up to commit to performing a single act of kindness in Maggie Lee's honor. Here are some examples of things people are doing. In some cases, entire schools are participating. E.g.:

St. Thomas Moore Catholic School is having a Mass in Maggie Lee's name where the written good deeds of all students will be placed in a box on the altar. ...

TROPHY CLUB, TX - Lakeview Elementary is having a Maggie Lee For Good WEEK!!!! and donating food items to the Northwest Area Food Bank.

When I saw John and Jinny over the weekend for their son Jack's 11th birthday party, I learned there is even a budding clothing and jewelry line, with several different folks selling items to raise money for various good causes (with the family's blessing). Somebody created a neat logo for them (see below) and there are yard signs and even a small billboard around Shreveport promoting this special day.

For those who care to do so, I'd encourage you to honor Maggie Lee's memory today, even if you never met her, with some commemorative act of kindness or good deed. And if you want to let my brother's family know what you've done on their daughter's behalf and perhaps leave a message of encouragement, you can use this form on the MaggieLeeForGood.org website.

If you're interested, check out my brother's blog, Wondering Thoughts, where he's posted his own thoughts this morning along with a link to Shreveport Times coverage.

Thanks a lot for your off-topic indulgence.

Media spin prevents flu vaccines for high-risk prisoners, cost taxpayers' $$$

Headline writers had a field day this week touting the supposedly alarming notion that "Some Texas convicts may get H1N1 vaccines before you." To this I responded first with a yawn, then with a "Duh," then with a "so what?" But I've been surprised how widely the story has been given play, and now the Department of State Health Services says prisoners won't be prioritized for the vaccine.

The MSM spin on this story IMO was just a tad misleading since prisoners weren't being put ahead of everyone, but rather it was proposed that "prisoners who are considered high-risk could get their shots before members of the general public who are not high-risk." Isn't that as it should be, targeting high-risk populations first?

What's more, of all citizens, prisoners are the only ones for whom the state bears a constitutional obligation to provide healthcare. If a flu pandemic hits an enclosed prison unit, it could easily spread very quickly. And who do you think pays then? Not some private insurance company or even a split with the feds like with Medicaid, but the money comes 100% from Texas state coffers. Thus the state has an enormous economic incentive to keep prisoners from contracting the flu.

This seems like a no-brainer, but the spin of "prisoners might get something you don't" turned this into a negative story when really TDCJ was doing the right thing, being proactive and preventing avoidable extra spending on healthcare. Is that realy such a bad idea?

RELATED (10/29): Via Human Rights Examiner, here's an important unintended consequence from failing to inoculate at-risk county jail inmates for swine flu: In Riverside County, CA, the H1N1 virus has hit the jail and is causing trial delays thanks to inmate quarantines. One supposes that in state prisons, too, flu quarantines could impact work programs, trustee functions, and worsen understaffing among front-line corrections officers. The decision not to inoculate high-risk inmates (much less staff) seems foolish and short-sighted.

Charges against Yogurt Shop defendants dismissed

One of the state's more notorious examples of apparent false confessions was finally resolved this afternoon when charges against defendants in Austin's Yogurt Shop murders were dismissed. This decision was long overdue, IMO. It was definitely past time to fish or cut bait on this one.

The conviction had already been overturned by the Texas Court of Criminal Appeals, which ruled (following SCOTUS in Crawford) that recanted confessions by co-defendants couldn't be put on as evidence without providing a chance for cross-examination. But the big break for defendants came when DNA evidence was analyzed post-conviction pointing the finger at an unknown suspect and contradicting both the recanted confessions and the prosecution's theory of the case. More than 50 other people also confessed (all of them falsely, police believe) to the high-profile 1991 crime that took the lives of four teenage girls. See initial AP coverage of the dismissal.

An expert brought in by the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit last year said Michael Scott's confession in the Yogurt Shop case showed classic signs of being "persuaded" by interrogators, while most of the other false confessions in the case were "voluntary," i.e., given by people who saw the case on the news and simply wanted attention (or whatever motivates such inexplicable behavior).

How many Dallas cops gave tickets to non-English speakers?

I couldn't make this stuff up; from the Dallas News:

Since 2007, at least 20 Dallas police officers from five patrol divisions have wrongly cited motorists for not speaking English, according to records.

The number of officers tied to the tickets is greater than police initially estimated. And it is likely to grow because Dallas police officials say they plan to look back several more years and include the supervisors who signed off on the tickets in the investigation for possible dereliction of duty.

Almost all of the 38 people cited for the offense – which is not a crime in Dallas – were Hispanic. None of the officers who wrote the tickets were Hispanic, records show. The officers range from rookie to 13-year veteran and wrote as many as five tickets each for not speaking English.

In five cases, the person cited paid all or a portion of the $204 fine. In the other cases, the charges were dismissed, officials said. Police initially said 39 tickets had been issued in the last few years, but Administrative Judge C. Victor Lander said one of those tickets was voided.

One could almost imagine the combination of ignorance, bigotry and departmental folklore that might combine to cause 20+ officers to give tickets for this imaginary offense, but what explains how or why the municipal courts processed guilty pleas and fines in five cases? Apparently a case of the blind judging the blind.

Kathy and I would like to drive down to Veracruz state next summer to Xalapa and I hope the Mexicans don't reciprocate and require me to demonstrate Spanish fluency. If they do, though, just like these five people did in Dallas, I'll probably just pay la mordida and move on.

If this doesn't make it into Texas Monthly's annual Bum Steer awards then Jake Silverstein and Co. just aren't paying attention.

Does Texas need constables in the 21st century?

Here's a pair of must-read articles from Ed Timms and Kevin Krause at the Dallas News on the evolving role of constables over the last 15 years and whether they've seen too much mission creep:

• Dallas County constables' growing ticketing said to boost safety - and county coffers
• With little scrutiny, Dallas County constables have turned offices into de facto police departments

According to the first story:

[Will] Hartnett, a Republican state representative from Dallas, is concerned with what he sees as a "dramatic expansion" of constables' duties. Constituents, he said, are upset about constables "setting up speed traps and stop-sign traps" – more to write a lot of tickets than to enforce traffic laws.

"There's a difference between enforcement and traps," he said.

Traffic enforcement by constables is praised by some community leaders as a public service that makes Dallas County roads safer. But for a county that relies heavily on fines and fees to pay the bills, such energetic traffic enforcement also is an important revenue stream – especially during an economic downturn. And traffic enforcement has contributed to an unprecedented expansion of constables' operations.

Some justice of the peace courts also are helping to get money from errant motorists into the county's coffers as quickly as possible. They do so by offering deferred disposition – with a probationary period of just a day – for some traffic offenses. If offenders complete the probationary period without another offense, the traffic violation stays off their record.

Such practices have produced results.

Constables are responsible for the majority of traffic cases that end up in JP courts. Revenue from traffic cases in JP courts was about $7.3 million in 2003. It topped $25.8 million in 2008 – an increase of more than 250 percent.

It's interesting to me that it's Republicans like Will Hartnett and Bob Duncan who are raising the most poignant and important questions about constables:

"The question is, in modern-day society, do we need independently elected constables?" said [Robert] Duncan, the state senator from Lubbock. "Because they're basically serving the same function as a [sheriff's] deputy could and probably should be serving."

But this isn't a particularly partisan issue, or it shouldn't be, but really a matter of basic good governance. I absolutely agree that constables are redundant in many of their modern duties and also less accountable generally than municipal PDs and county Sheriffs. Constables are relics; one hundred years from now, I've little doubt history will view them as the same kind of quaint joke as the recently abolished county inspector of hides and animals.

I also thought the whole idea of "deferred disposition" with a one-day probationary period for traffic tickets was quite a remarkable development - pretty much an overt omission that county officials view traffic enforcement as little more than a money grab. While it might be better for the defendant who's concerned that a moving violation might raise their insurance rates, I thought this critique from a Houston attorney was spot on:

Sy Shamsie, an attorney in The Woodlands near Houston, recently found out about deferred dispositions after he was ticketed in Dallas County by a deputy constable. The deferred disposition, he said, provides an incentive not to fight a ticket. He said he believes that collecting money, not public safety, is the intent.

"They're just saying, 'Write me a check' " he said. "They've looking for any way to just generate revenue. That's the easiest way to do it."

This is what happens when government comes to view the criminal justice system more as a source of revenue generation than a means to promote public safety. The latter inevitably gets shortchanged in pursuit of the former.

Did Todd Willingham confess or did Stacy Kuykendall lie?

"We're not calling [Stacy] Kuykendall a liar," said the Dallas News editorial board, after she released a written statement to the Fort Worth Star-Telegram claiming Todd Willingham secretly confessed his guilt to her in her last visit with him on death row before he was executed.

I guess, then, that task will fall on me. It must be said: Not everything Stacy Kuykendall has said about the Todd Willingham case is true. Either she is lying now or she lied in the past, including under oath at her ex-husband's trial. There are just no two ways about it. As the New Yorker's David Grann pointed out, her recent statement:

directly contradicts numerous previous statements she has made: in interviews with police and fire investigators; in testimony during the trial; in letters to public officials and Willingham’s lawyers; and in her comments to the press ...

After the fire, police and fire investigators interrogated Kuykendall. Each time, she said that she and Todd had not fought the night before the blaze, and that they had gone to Kmart to pick up photographs of the family to get ready for their Christmas celebration. She never mentioned that she intended to divorce Willingham, whom she had married three months earlier. She said he would not have hurt the children.

She had this exchange with a police detective and the deputy state fire marshal, Manuel Vasquez:

VASQUEZ: Did you and your husband have any disagreements on the night after Kmart?

KUYKENDALL: No. No we didn’t.

VASQUEZ: Did he get angry at you for any reason?

KUYKENDALL: No. ...

Kuykendall continued to give the same version of events long after the fire and after she and Willingham were divorced. In 1999, she spoke to Elizabeth Gilbert, a teacher and playwright from Houston who had begun to investigate Willingham’s case. According to a tape recording of the conversation, Kuykendall made it clear that she still believed that Willingham was innocent and that he had no motive to hurt their children. She noted that he had an inadequate defense, saying of one of his lawyers, “He’s not a good lawyer. He’s just not.” She also said the prosecution was motivated to find anyone to blame. “I think they were after somebody,” she said. “They didn’t care who.” She said, “I don’t think he did it…. He was a mean person to me, but something like that, no.”

Now she claims they'd argued and she'd threatened divorce soon before the fatal fire and that Willingham confessed to her at the 11th hour. But she told the Corsicana Sun immediately after that last death-row visit that Willingham still maintained his innocence, describing his version of the story in significant detail. By that time as his final days approached, she told the Sun, Kuykendall herself had come to be convinced of her ex-husband's guilt, but she insisted Willingham never confessed and still maintained the fire was an accident.

I feel sorry for Stacy Kuykendall and I know this must seem like a never ending nightmare that has devastated and defined her entire adult life. (Somebody please explain to me again how the death penalty provides "closure" for victims?) As though losing three children isn't a big enough tragedy, no one has ever believed her, it seems. When she testified in her husband's defense, prosecutors considered her as a dupe. Now that she's changed her mind about what happened, these latest recollections of her ex-husband's confession simply cannot be reconciled with all she's said in the past.

I don't know which time Kuykendall was telling the truth or what was her motive when she didn't, but I know for sure it can't all be accurate. That fact can't be overcome just from sympathy for her unfortunate and painful history. It's regrettable that she put herself in that position in such a high-profile case, but that's where we are.

It did strike me that there might be a way to find out for sure whether Todd Willingham really confessed. TDCJ is set up to electronically record non-attorney visitations with death row inmates. Their online policies say they "may" record visits, but I've been told in the past they record all of them on death row except those with the inmates' attorneys. To find out for sure, I spoke this morning with TDCJ's lead PR person, Michelle Lyons, but she could not confirm whether all conversations are recorded or only selected ones. No one had ever asked her that question, she said, though I'm willing to bet in light of recent events I won't be the last one who wants to know. So to get more information, I filed an open records request today asking for the following information:

• Any TDCJ policies regarding recording of conversations during death-row inmates' non-attorney visitations, including any policy describing how often recording occurs, under what circumstances, whether every call is recorded, what is done with the recordings, who has access to them, how long they're kept, what documentation must be maintained, etc..
• Any log or record of recordings from visitations for now-deceased death row inmate Cameron Todd Willingham.
• Any log or record of who has accessed or listened to recordings from visitations for now-deceased death row inmate Cameron Todd Willingham.
• The tape or audio file (in whatever format it's maintained in) of any recorded visitations with Cameron Todd Willingham during the month before his execution.

Maybe we can get to the bottom of this confession question once and for all.

RELATED: Also from the Star-Telegram, Dave Montgomery has a good piece detailing the specific conclusions from testimony by the fire marshal at Todd Willingham's trial that modern arson experts say were flawed and unwarranted. Said one of the nine arson experts who have independently concluded the forensic testimony was flawed, "I really did get sick to my stomach after I reviewed that case ... He could have done it, but he probably didn’t." That's also pretty much my conclusion from everything I've seen so far. That said, if this open records request comes back with a recorded confession, it'd pretty much put an end to the "innocence" debate in this case. The debate over faulty arson forensics, however, is arguably more important at this juncture and deserves a more complete airing whether or not Todd Willingham confessed.

Grits to readers: Cut me some slack

Before launching back into Grits' usual topics, I wanted to say a word about some comments and emails received over the last few days while I was away from the blog, particularly regarding three stories some people were offended I haven't covered yet: Possible criminal charges against the TYC Ombudsman, the dismissal of a lawsuit against the Bexar probation department by a union leader, and Stacy Kuykendall's claim that Todd Willingham confessed to her before his execution.

In reality, my failure to immediately comment on these topics shouldn't be viewed as some devious effort to avoid uncomfortable subjects: I didn't write anything on the blog those days, was focused on family matters and didn't even follow the news while I was out. Each topic in turn will likely make it onto Grits after I've had a chance to read recent reports and formulate an opinion, but to be clear, that will happen on my timetable, not yall's.

Bottom line: Please remember that Grits is a private weblog, not a news site - a place where I record my opinions on topics that interest me, not a comprehensive news source. While to some extent I'm pleased that readers have come to hold high expectations regarding what and how frequently I publish on Grits, this blog is a hobby, not anything anyone is paying me to write. So please try not to read quite so much into missing a day or three of "work." Everybody deserves a break now and then and this writer is no exception.

Traveling Day Open Thread

I'm headed out of town today, so use this as an open thread to discuss whatever you want until I return in a couple of days. In the meantime, here are several recent items that merit Grits readers' attention:

Free Standing Innocence
Several good items are up at the blog A Criminal Enterprise, including this piece on whether there exists (or should exist) a free standing actual innocence claim under the 8th Amendment.

Wall Street Meets The Wire
See, from White Collar Crime Prof Blog, "Wall Street Meets The Wire," and also Alexandra Natapoff's related comments on differences between white collar and street informants.

The crime of unprofitability
From Houston's Clear Thinkers, "More thoughts on business 'crimes'."

Snitching theory and practice
Speaking of Sasha Natapoff, check out an early review of her forthcoming book on "Snitching: Criminal Informants and the Erosion of American Justice." I'm looking forward to reading it myself and reviewing it here on Grits. See more from Natapoff at here recently launched Snitching Blog.

Judge ousted for bias toward DA
From TexParte, a judge in Kerrville stepped down last month to avoid state bar discipline over pro-prosecution bias thanks to the DA using forfeiture money for a CLE in Hawaii and the judge's office equipment. Of course, Judge Sharon Keller has openly admitted a pro-prosecution bias, but she's still with us - for now. Perhaps money must change hands for such bias to be punishable?

Check the books: Inmate trust fund robbed
A jail employee in Montgomery County was arrested for stealing between $20,000 and $100,000 from inmate trust fund accounts. Between this episode and the rash of commissary bribery scandals in recent years, IMO jail inmate trust accounts and commissary funds could stand a comprehensive review by either the State Auditor or the Comptroller. There's just a lot of unregulated money sloshing around in that part of the system and too many examples of a lack of accountability.

Do sick inmates get medication in Burnet County jail?
Burnet County's privately run jail received a failing grade from the Commission on Jail Standards thanks to a failure to give (or at least to document) medication to seriously ill inmates. According to TCJS director Adan Munoz, "of the 500 inmates housed at the jail during last week’s visit, none were recorded to have ever received any type of medication during their stay."

La Familia en Tejas
From Mike Ward at the Austin Statesman, "Austin was shipping hub for Mexican drug cartel."

Austin rejects vampire cops just in time for Halloween
The Austin City Council, led by Bill Spelman, passed a resolution discouraging police officers from taking blood in DWI cases, insisting that trained medical professionals should continue to perform the task. Though the resolution was weakened at the last minute, Chief Art Acevedo says APD will honor the council's wilshes and not train its officers as phlebotomists.

How low can you go? Taser tells police don't aim at chest

Taser International yesterday issued an advisory to police agencies using their product not to shoot suspects in the chest (which of course is where they're taught to aim because it provides the largest target) but to "aim a little lower." (!)

Uh, exactly how much lower? This advice immediately made me think of a video from a police training session I saw awhile back depicting an officer accidentally tasered in the groin. The trainer who shot him was laughing so hard he fell to his knees and forgot to shut off the switch, something he said is known in law enforcement circles as "riding the lightning." But hey, what's 50,000 volts to the balls among friends? (If nothing else, one supposes this new advice will generate more such videos for humor sites.)

According to CBS News:

The bulletin from Taser says there is a slight risk of their device causing cardiac arrest. And it states 'We believe this recommendation will improve the effective use of taser ECD's while also further increasing safety margins and enhancing the ability to defend such cases in post event legal proceedings.'

"The information they're sending us simply states if you want to avoid controversy than you might want to avoid that target area," said Lt. Henderson. "And we take that very seriously in light of recent events".

Opponents of the Taser use say the company is admitting for the first time its product is dangerous.

Sloppy practices alleged at Dallas crime lab

A lawsuit has been filed in Dallas by a crime lab employee alleging he was fired for pointing out sloppy practices in the serology lab that could contaminate findings. Reported WFAA-TV:

A forensic biologist who was fired by Dallas County's crime lab said he will file a whistleblower lawsuit against his former employer on Wednesday.

about conditions inside and the overall credibility of the lab.

"I worked there for fourteen months," said Chris Nulf, Ph.D. "I started off in the serology lab which means we analyzed evidence for blood or semen."

Dallas County terminated Nulf in May for insubordination, saying he displayed unsatisfactory progress as a trainee, was unproductive and did not follow procedures at the Southwestern Institute of Forensic Science, also known as SWIFS.

But in a lawsuit to be filed Wednesday, Nulf says he was terminated for pointing out problems inside the lab, including:

• an outdated protocol manual used by analysts to conduct their daily work

• equipment that isn't calibrated

• analysts using expired chemicals

• criminal case files stored in an unsecured hallway

• a box fan which blew over areas where evidence is examined

"The evidence may have blood flakes on them or hair and fiber on them," Nulf explained. "If you have a box fan going in the background, those fibers could be blown across the evidence, lost forever or cross-contaminated into someone else's evidence."

"From what we've been able to gather, there are high school labs that are cleaner than the lab at SWIFS," added Nulf's attorney, Raul Loya.

Loya said the lawsuit could force the district attorney to review hundreds of cases. "This is evidence that has the power to exonerate a suspect or imprison him for life," he said. "This is a serious matter."

A followup on WFAA includes this quote: "The question is: 'Is this for real?'" asked Gary Udashen a Dallas attorney. "Because if this is for real, it's a big deal." ... "If I'm going to trial tomorrow on a criminal case where there's somebody coming in from this crime lab, then I'm going to use this information for cross-examination purposes and perhaps challenge the admissibility of the crime lab evidence," Udashen said.

Last week I received several emails from an anonymous source that included pictures corresponding to the allegations in this suit, showing, for example, outdated chemicals, the box fan pointing at an evidence table, layers of dust covering areas around a workspace, and a page from an official-looking "corrective action request" stating that the trace evidence lab had been contaminated with blood. I had no context for the information, and didn't even know which lab they were referencing, but this looks to be the related case. Each photo came in an email that stated, "If you can guess what's wrong with this picture, you're one step ahead of the lab Management." Here are some examples:




Time will tell whether this particular case makes, but after Houston's ignominious experience this'll definitely be one to watch.

Two more innocent men from Dallas getting out after 12 years

Dallas DA Craig Watkins' Conviction Integrity Unit has identified exonerating evidence regarding two more Dallas men sentenced to life in prison, the Dallas News reports:

Claude Alvin Simmons, Jr., 54, and Christopher Shun Scott, 39, who are both serving life sentences for the April 7, 1997, shooting death of Alfonso Aguilar, will both be released after convicted robber Alonzo Hardy gave authorities a detailed confession implicating himself and another man in the murder.

A confession by a man already in prison for another crime will lead to the exoneration of two men wrongly convicted for a 1997 capital murder, the Dallas County district attorney's office said today.

Hardy, 39, has been in prison since 1999, serving a 30-year sentence for a robbery committed a year after the Aguilar slaying.

Aguilar, 41, was fatally shot in the chest during a home-invasion robbery in the 4600 block of Hopkins Avenue. A female relative was also sexually assaulted during the incident, authorities had said. A Dallas County jury convicted Simmons after just six minutes of deliberations.

Dallas police Tuesday night arrested Don Michael Anderson, 40, in Houston for his role in the killing. According to the district attorney's office, Hardy's confession implicated Anderson and cleared both Simmons and Scott of any involvement in the crime.

The News article by Diane Jennings doesn't say what was the underlying cause of the false conviction, but looking at the photos it appears to have been a bad eyewitness identification. Here are pictures of the falsely convicted men:

Claude Alvin Simmons, Jr. (left) and Christopher Shun Scott

And here are the pictures of the actual perpetrators:

Alonzo Hardy (left) and Don Michael Anderson

Pretty darn close, huh? More and more I believe that, in cases where the witness didn't previously know the defendant, all eyewitness identification testimony should require corroboration in criminal court, particularly if the Legislature and the courts don't require police to use best practices when gathering eyewitness evidence. Witnesses just get it wrong too frequently, and too predictably.

UPDATE: AP confirms this was a case of mistaken eyewitness ID: "'This is a classic misidentification, eyewitness case,' said Simmons' attorney, John Stickels."

NUTHER UPDATE (10/22): I spoke last night to Mike Ware, the head of the Dallas DA's Conviction Integrity Unit, who told me a little more about the case. He said the new confession - taken over two days of depositions in June - was detailed and matched up with crime scene evidence a lot better than the prosecution's theory of the case.

A single, uncorroborated witness was the sole basis for both false convictions, he said. Both defendants testified on their own behalf and put on alibi evidence, but the jury believed the prosecution's witness over them. (I don't know the stats on how many DNA exonerees in Texas presented alibi evidence at trial, but it was quite a few of them.) He pointed out that back then Dallas had not yet improved its eyewitness ID procedures to require blind administration and showing pictures sequentially instead of in a photo array.

What's more, says Ware, the apparent real perpetrators were suspects back in 1997 and one of them actually confessed at the time to a third party, but the judge wouldn't let the jury hear that evidence. Mike thought that judicial decision was likely the deciding factor in the false conviction - that the outcome might have been different if the jury had heard all the evidence. As is often the case with recent exonerations, it wasn't just the eyewitness ID error but that combined with other breakdowns in the process that allowed this mistake to happen.

Both the currently imprisoned men and the new confessor passed polygraphs, said Ware, and the DA's office offered no promises or deal to Alonzo Hardy for his testimony. They plan to prosecute both new suspects for the offense, he said.

MORE: The Dallas Observer interviewed Craig Watkins about the cases. Here's a longer version of the Dallas News story.

Might white collar cases be next venue for innocence claims?

Given the scope of subjects covered on this blog, I don't focus as often as perhaps I'd like on white-collar crime issues, but here are several recent posts on the topic from others that deserve Grits readers attention:

Doc Berman ponts to the abstract of an academic paper by White Collar Crime Prof blogger Ellen Podgor who suggests that "the next phase of wrongful convictions might move beyond street crimes into the white collar world" because the "trial penalty" for not cutting a deal is so great that "in order to minimize the possible consequences, innocence becomes an irrelevancy." I certainly agree that's a big cause of false convictions, and not just in the white-collar arena. So if it takes white-collar cases to put the issue on the map, so be it.

Some of the best recent writing I've seen on this topic has come from Tom Kirkendall at Houston's Clear Thinkers, who believes that "There is a huge difference between what Marc Dreier did and what Jeff Skilling did. It reflects poorly on us that our criminal justice system cannot distinguish between the two." His post, "The reeling prosecution in the Skilling case," is a must-read. In another post he points out that

it's not every day that a federal appellate court concludes that a newspaper's coverage of a particular event was a major factor in the creation of a presumption of community prejudice," but "that's precisely what the Fifth Circuit Court of Appeals did with regard to the Houston Chronicle's coverage of the demise of Enron generally and the prosecution of Jeff Skilling specifically (see pp. 41-45 of the Fifth Circuit decision).

This morning, reacting to the dismissal of charges against Enron Broadband Director Scott Yeager, Tom suggests Enron prosecutors grossly abused their prosecutorial authority:

The prosecutors who pursued these cases ruined careers and harmed families by abusing the state's overwhelming prosecutorial power. They remind me of Ayn Rand's observation about socialists who use state power to further their supposedly altruistic goals:

"[T]he truth about their souls is worse than the obscene excuse you have allowed them, the excuse that the end justifies the means and that the horrors they practice are means to nobler ends."

"The truth is that those horrors are their ends."

It's rather amazing to me that so many people in Washington refuse to regulate corporations but it's somehow fine to prosecute their leaders for bad business decisions. Tom's right, there's a difference between Ponzi schemers or bribe takers and aggressive businesspeople who played by the rules of the game at the time but ended up losing money. I couldn't cite chapter and verse, but my sense is that part of the reason this trend has developed is that tort reform has disempowered civil courts as a meaningful remedy for investors in these multi-billion dollar calamities, so punitive criminal charges are all that's left as a remedy to recoup what they can from the losses and assuage the public anger in the aftermath.

Harris County rebuffs Houston's drive for red-light camera revenue

As a long-time critic of using red-light cameras as revenue-generation schemes, I was interested to see this story in the Houston Chronicle ("County to City: Do not pass go," Oct. 20) about a city-county dispute over using coercive methods to force payment from ticketed drivers. Reported James Pinkerton:

The city's plan to withhold vehicle registrations of motorists who have ignored $16 million worth of red-light camera citations has hit a roadblock at the county courthouse.

The county judge and three county commissioners oppose a proposed city-county scofflaw contract, with some describing it as a money-grab by the city and others concerned it could hamper collection of the county's portion of state vehicle registration fees.

“The downside is becoming a tool of the city for their incredible revenue grab,“ Precinct 3 Commissioner Steve Radack said. “It's come to look like it's more of a revenue situation than trying to change people's behavior.”

Only the county tax office, after executing a contract approved by the commissioners court, can refuse vehicle registrations based on non-payment of citations and fines, a spokeswoman for the Texas Department of Transportation said Monday.

At stake is some $16 million in uncollected civil fines from motorists caught by 70 red-light cameras since the city program began in May 2006. To date, the city has issued 607,000 violations and collected $21.3 million in fines.

Interestingly, there appears to be bipartisan consensus on the Commissioners Court against the deal, with El Franco Lee, Steve Radack, Jerry Eversole and Sylvia Garcia all speaking out against it. I was particularly pleased with Garcia's comments:

Garcia said she is concerned that residents whose registrations are blocked could face penalties if they are ticketed for an expired registration.

“All it does if you tack on fees, you're going to make if more difficult to collect and right now is not the time to be beating someone to death with fines and fees,” said Garcia, former chief of Houston municipal courts.

Obviously I agree the county on this dispute. IMO the red light cameras are only really there for revenue generation, anyway, since other measures like lengthening yellow light times are much more effective at reducing accidents in intersections. So I'm glad to see them pushing back at the city's drive to maximize revenue from this source. Good for them.

Rick Perry's execution review method: What Sharon Keller says goes

If it weren't for Rick Perry's defensive reaction and attempts to stymie a review of the Todd Willingham arson investigation, I doubt the issue would ever have made it into the political arena. The public supports the death penalty and innocence cases won't/don't sway that view. But the governor keeps digging himself a deeper hole, to the point that even ardent death penalty supporters are questioning his behavior. In the New York Times today:

Katherine Cesinger, a spokeswoman for Mr. Perry, said that on the night of the execution, the governor’s general counsel thoroughly briefed him on the report of the arson expert and various appellate court decisions. He denied the reprieve, she said, because the courts “all agreed that the Hurst report was no more than an opinion and did not merit reopening the case.”

This is the first admission that the Governor actually was aware of Hurst's conclusions about arson testimony before Willingham was put to death. But since Hurst's report was filed with a last-minute habeas brief, it wasn't "all" the courts that reviewed it but only one: the Texas Court of Criminal Appeals. And they think it's okay to execute someone even if the judge and prosecutor were sleeping together during trial.

So Rick Perry thought it was okay to overlook the possible execution of an innocent man because Sharon Keller said it was alright so there was no need to think about it further. That really boosts your confidence, doesn't it?

Prosecutors seek to thwart post-conviction innocence claims

I'm glad to learn that US Attorney General Eric Holder is reviewing a Bush Administration policy of securing plea waivers from federal defendants of their right to post-conviction DNA testing that could prove their innocence. But it's too bad the scope of that review won't extend to Texas prosecutors who seek DNA destruction as part of plea deals. Reports the Washington Post:

Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.

The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence. More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing. They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts. ...

Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision. Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.

Josh Marquis of the national District Attorneys Association told the Washington Post that "he's never heard of DNA waivers in state court and that the organization opposes the concept. 'I think it's important to always leave the door open for actual proof of innocence,' he said." However, this tactic reminds me of a method used by Texas prosecutors to prevent post-conviction DNA claims: Requiring as part of plea deals that DNA evidence be destroyed to prevent future testing.

Indeed, the newly appointed Texas Forensic Science Commission chairman John Bradley has openly argued that destruction of DNA is important as part of a plea deal because "innocence trumps everything" and so what appear to be solid cases might unravel after conviction if the evidence isn't destroyed.

Innocence cases tend to represent gross errors in the system, seldom outright malicious prosecution. But choosing to destroy or limit testing of evidence in order to avoid those errors from being discovered surely borders on malicious: Certainly it's unfair, unjust, and simply bad public policy.

It strikes me that Texas prosecutors appear to be far ahead of their brethren among the feds and in other states at concocting methods to avoid successful innocence claims. Walter Reaves has a good post up about another tactic by Mr. Bradley (who is the Williamson County DA) to thwart post-conviction innocence claims: Prosecuting for aggravated perjury when someone who pled guilty later claims innocence in a habeas corpus writ. Writes Reaves:

Even the most staunch defender of law order might sense some unfairness in this. Other than concerns about decency and fairness, there are also some practical problems with this approach. The first is that just because a defendant pleads guilty doesn't mean he agrees he is guilty.

Long ago the United States Supreme recognized that defendants might who don't believe they are guilty might not want to risk going to trial. Although this can be he subject of a separate post, its basically common sense. Would you rather be innocent and spend 10 years in prison or innocent and spend 50 years in prison. Prosecutors know this, and sometimes make offers to good to be true. So a defendant basically fibs, and admits guilt in return for a favorable outcome.

The Court of Criminal Appeals recognized this a few years ago in DNA cases. Some of the persons who have been exonerated actually plead guilty originally. The court recognized there could be a number of reasons for pleading guilty, and held that would not prevent you from claiming innocence and filing a motion for DNA testing.

The Catch-22 Mr. Bradley would impose on defendants is further evidence of how absurd it is to analyze plea agreements as though they're voluntary contracts.

I don't blame prosecutors for the occasional mistake, but I do blame them when they attempt to cover up errors after the fact or seek to prevent them from ever being discovered. Habeas writs are a safety valve that exists to correct such errors - for example, when science improves to allow better testing or new evidence is discovered after the fact. Just because the law gives prosecutors tools to close off that safety valve using these kind of aggressive tactics doesn't make it wise or moral to do so.

Judge William Wayne Justice, RIP 1920-2009

Having grown up in Tyler, the passing of the late, great federal Judge William Wayne Justice last week hit very close to home.

For readers of this blog, Judge Justice will be best known as the jurist who virtually controlled the Texas prison system for nearly two decades in the aftermath of the infamous Ruiz v. Estelle litigation. And just to put it out there, with 20/20 hindsight, it's easy to see that in that case, Judge Justice was right and all of his myriad critics were wrong. One need only look to California to see exactly where the state of Texas' prison system would be today if not for Judge Justice - segregated, overcrowded, and with its public policy enslaved to myriad special interests.

For a while Judge Justice was an unwelcome thorn in the side of state prison officials, to be sure, but as it turns out, the old saying is true that an ounce of prevention is worth a pound of cure. In the decades since Ruiz was decided, Texas' prison population exploded. But thanks to Judge Justice, our prison system actually maintained a more professional, modern approach than in California during the massive recent expansion witnessed in both states. Now the Golden State is having to make very similar changes to those Judge Justice ordered in Ruiz, but they must do so with a prison population of 170,000 inmates; when Ruiz was decided, Texas had closer to 30,000 locked up.

Justice has already been the subject of a book-length biography and numerous obituaries have recounted episodes from his life's work, so I won't reiterate his judicial accomplishments here. I've had several friends who clerked for him who could do a much more able job of that task, so I won't attempt it for fear of embarrassing myself. But as a Tylerite, I should comment on the intense, often irrational hatred he endured while he lived and judged there.

In Tyler, Justice was held personally accountable by the public not just for this or that ruling someone disliked but as an anthropomorphic symbol of the cultural sea change that took place in America from the civil rights movement going forward. People despised him, frequently for things he actually had nothing to do with, or else for settlements by litigating parties that were reached in his court but which he did not craft.

Bill Hobby once said of Judge Justice that the best kind of scapegoat is one you can't do anything about - like a federal judge with a lifetime appointment. Justice became a perfect foil for Tylerites in the culture wars of the post-desegregation era. That part of East Texas was settled by descendants of the Confederacy who fled to the Texas frontier to escape Union occupation after the Civil War. (The Smith County Judge during most of my years growing up was a descendant of John C. Calhoun.) Though its demographics are changing now due to an influx of Dallas-area retirees and a Latino working class, during that pre-GOP era, Tyler's politics were dominated by folks who ultimately became "Reagan Democrats," shifting partisan allegiances largely as a result of the GOP's successful "southern strategy" - people who a generation earlier might have been identified in Texas as "Shivercrats." And for the most part, that group hated Judge Justice with a passion normally reserved for black folks who rape white women.

Justice's house near Bergfeld Park in Tyler was the first place I ever saw electronic surveillance cameras, which were installed because he received frequent and occasionally credible, physical threats. (I couldn't swear to it, but my recollection is that the surveillance cameras at Justice's house predated the first ones I ever saw at local banks.) I can vividly remember after Judge John Wood was murdered in San Antonio, Tylerites openly predicting of Judge Justice: "He's next." Others might turn tail and run in the face of that kind of animosity, but Justice was from there - he was an Athens native - and with a calm, professorial demeanor he withstood every attack with what outwardly seemed like aplomb, though I'm sure it was personally tough for him and his family.

What I remember most about Judge Justice from my childhood in Tyler, though, wasn't the animosity toward him from the public but the respect afforded him in my own own household, where my father was a workaday corporate defense attorney practicing frequently in his court. Notably, though my father and Justice came from ideologically very different places, my Dad would never let others - particularly non-attorneys - run Justice down in his presence, even when I was young. My Dad has told me many times that he admired Justice for being smart, respectful of the law, always well prepared, and most importantly, he always knew he'd get a fair trial in Justice's court, no matter who his client was. I can tell you for sure: A judge couldn't get much higher praise from my old man.

Vaya con Dios, Judge Justice. Texas is a better place for the lifetime of public service you devoted to her.

Corsicana Sun hyping bogus Willingham 'confession' shames paper, state

Locals in Corsicana are circling the wagons on the Todd Willingham case, and they've enlisted the enthusiastic assistance of the local newspaper, The Corsicana Sun, to their cause. It's hard not to conclude the paper is embarrassing itself, their town and the state with ignorant, hyperdefensive attempts to counter conclusions by arson experts in the Todd Willingham case. (Indeed, I find such bad reporting nearly as noxious as Willingham's turncoat defense attorney, who Anderson Cooper said sounded more like a Sheriff in the case than a defense lawyer.)

Virtually everything the Sun publishes about Todd Willingham comes off as a parochial, naive, one-sided defense against recent challenges to the forensics presented at trial. I have no beef with advocacy journalism, so part of me thinks that the Sun adopting that role could serve a productive function. But in practice, they frequently allow local sources to make demonstrably inaccurate claims without contradiction. It's like they fantasize their readers won't also see coverage from the Dallas News or CNN, so they can just ignore widely reported facts instead of confront them.

The one that put it over the top for me came this week in a story titled "Affidavits dispute claims of innocence," in which the Sun published a five-year old affidavit based on disputed hearsay:

from Ronnie Kuykendall, brother of Stacy Kuykendall, who gave a statement to Kirby Hill regarding one of Willingham’s last visits with his ex-wife. Kuykendall said that on Feb. 8, 2004, a week before Willingham was to be executed, that Willingham’s ex-wife, Stacy called her family together to tell them about her last visit with her ex-husband.

“Stacy asked all of us to come into the living room, at this time she started crying and told us about her visit with Willingham,” Kuykendall said in the affidavit. “She stated that after visiting with him for about one hour and 45 minutes he told her that he had set the fire because he knew that she was going to leave him in January (1992) like she had said and that she was going to divorce him and he figured if he did this she would stay with him and she could get her tubes untied and that they could start another family and that he wanted her to write the board a letter because he did not want to die.”

Stacy Kuykendall has refused to talk to the media since her ex-husband’s execution. However, she spoke to Daily Sun reporter Loyd Cook in 2004, shortly before Willingham’s death.

At the time she said she was convinced Todd Willingham did kill their children.

Now check out David Grann's response to this surprising claim on the New Yorker blog to see how a real reporter analyzes such information when it's given to them by city government - i.e., critically. As it turns out, Willingham's wife has spoken to the media since her husband's execution, when she told reporters from the Chicago Tribune that her brother's affidavit was untrue. Whoops! But hey, why bother to report what she actually said when you can recycle hearsay from someone who wasn't there? Pitiful.

Investigative reporters from the Chicago Tribune were the first to break the story nationally about faulty arson testimony in this case, so if reporters and editors at the Sun haven't read that story, then folks in their shop aren't really even paying attention, they're just serving as a de facto bulletin board for local officials. The alternative conclusion must be that they have read the Tribune story but simply chose not to present facts to their readers that contradicted what local officials told them that day. Either way, this was hardly journalism's finest hour.

Even more embarrassing, the Sun actually misrepresented their own reportage of exactly that meeting. Writes Grann:

Stacy gave an interview to the Corsicana Daily Sun on February 8, 2004—the very day that Ronnie Kuykendall claimed Stacy had told him that Willingham had confessed. In the interview, she said that during her visit with Willingham he maintained that the fire was accidental and that their daughter Amber had likely caused it

So again, why disbelieve your own reporter, who talked to Ms. Kuykendall immediately after the conversation, and then present as some sort of new facts this old hearsay from her brother? If Grann can dig that story up from the Sun's own online archives, so can they.

There's lots more to talk about on this case than I have time to focus on, but the MSM and blogosphere are buzzing about it. If you're looking for more, Steve Hall at the Stand Down Project is pretty constantly rounding up coverage. Also check out:

• David Grann, The New Yorker: What Stacy Said
• Scott Cobb, Burnt Orange Report: Todd Willingham's defense lawyer embarrasses Texas justice system.
• Glenn Smith, DogCanyon: Supreme Court Judge David Medina, Once Indicted for Arson, Was Perry's General Counsel when Willingham Stay Denied.
• Scott Greenfield, Simple Justice: Never smear your own client
• Mark Bennett, Defending People: Willingham's trial lawyer speaks up
• Gardner Selby, Austin Statesman: Opportunities missed in fatal Texas arson case
• Steve Mills, Chicago Tribune: Statements by Gov. Perry, others don't align with facts
  
• CNN: Willingham juror no longer sure of his guilt in Texas case
• R.G. Ratcliffe, Houston Chronicle: Perry keeps Willingham memo a secret
  

Friday Open Thread

I'm taking today away from the blog to focus my attention elsewhere. Use this as an open thread to talk about whatever you want on crime and punishment topics, and/or check out these blogs while I'm away:

• The Crime Report
• Change.org: Criminal Justice
• Defending People
  
• Simple Justice
• Sentencing Law & Policy

Hasta mañana, amigos.

Pretrial defendants, not convicted felons, are main cause of Howard County jail overcrowding

Having tracked county jail overcrowding issues on Grits over the last several years, there's one pass-the-buck excuse I'm sick of hearing from Texas county Sheriffs that wrongly deflects accountability for local actors: The idea that jails are full because already-convicted prisoners are lingering around waiting for the Texas Department of Criminal Justice to take them off their hands. TDCJ must transport them to a state facility within 45 days (usually less). In Howard County, reports a local TV station:

Sheriff Stan Parker says state prisons have been backed up forcing them to hold dozens of inmates for more than a month.

"It's frustrating for us because these people are sentenced, ready to go to jail, and you can't get them out of your jail, because they can't except them. But I understand it's not their fault they have this problem, because they're doing their job, just like we're doing ours," Howard County Sheriff Stan Parker, said.

Local officials are hoping the back up in the Texas prison system is solved. But Sheriff Parker says right now, that's not likely, and for now he says they're having to make adjustments.

Let's look at Howard County's most recent jail population data (pdf) from the Texas Commission on Jail Standards. As of September 1, they had 73 people locked up in a jail designed to hold 96 inmates. Of those, just 9 had been convicted of felonies and were waiting to go to TDCJ. By contrast, the jail held 44 pretrial defendants, including 19 being held on misdemeanor charges. Just like other Texas jurisdictions, pretrial detention is the primary source of recent jail overcrowding in Howard County, but saying that implicates local judges and the commissioners court.

The National Association of Counties recently put out a publication, Jail Population Management: Elected County Officials' Guide to Pretrial Services (pdf), that might might give Howard County officials a few more clues about how to address this problem than their Sheriff is presently providing them.

There are a lot of ways to skin that cat: Reduce bail or give more personal bonds, establish a day reporting center, use GPS tracking, divert mentally ill offenders to supervised treatment, get prosecutors to evaluate cases quicker, create a public defender office so indigent counsel is assigned sooner. The problem is, all those things require one or more local actors to change how they've traditionally done things, and no one ever wants to. So the Sheriff blames TDCJ, whose real contribution to the problem is minimal. That excuse in particular, though, is getting tired.

'Scent lineup' evidence may be used in Anthony Graves' capital case

Jordan Smith at the Austin Chronicle reports that Fort Bend Deputy Keith Pikett's dogs generated a scent lineup hit in a 17-year old capital murder case. The 5th Circuit Court of Appeals overturned Anthony Graves' conviction three years ago because the state withheld information that its lone witness had recanted. But prosecutors have still been hot to go forward despite the rather profound lack of evidence. Now Deputy Pikett's dogs have given them more ammunition, but will also likely cause more delays:

new "evidence" that the state is seeking to use against Graves will likely cause yet another pretrial hiccup. Specifically, prosecutors this summer brought in Fort Bend County Deputy Keith Pikett to conduct a "scent lineup" – a practice of dubious scientific validity that was recently the subject of a scathing report from the Lubbock-based Innocence Project of Texas. This type of lineup, with dogs supposedly matching a scent from a crime scene to a scent collected from a suspect, is junk science, the Innocence Project charges, while questioning Pikett's techniques in conducting the dog-led lineup. The procedure has indeed been implicated in a number of wrongful arrests and convictions. According to the report, released Sept. 21, Pikett has no formal training in the practice – nor does he apparently think any is necessary. Pikett has testified in court (in a matter unrelated to Graves) that there is no need for formal training or for scientific rules or protocols when conducting such lineups, and Pikett has rejected the importance of scientific studies regarding scent identification. Nonetheless, prosecutors across the state – including with the Texas Attorney General's Office – have relied on Pikett for "expert testimony" in a number of criminal cases.

In the Graves case, Pikett's dogs apparently "hit" on two items of clothing evidence taken from the scene of the 1992 murders – linking them to Graves' scent during a lineup conducted in a parking lot. But the validity of those results is hardly credible, says Scardino. For starters, the evidence was collected from a burned-out house 17 years ago and then was part of evidence that was "lost" for years, until the state finally found it among a host of evidentiary items that had been stored in a cell in the old and unused Caldwell jail. The notion that the evidence has not been compromised and that dogs could smell Graves on two of six items presented to them by Pikett is simply ludicrous, says Scardino. The "evidence was burned," she said, and Graves' "scent wouldn't be on evidence after it burned." Scar­dino said Graves' defense team has not yet filed a motion seeking to exclude the evidence but is likely to do so. Given Towslee-Corbett's rulings thus far, Scardino isn't confident that Pikett's evidence will be excluded. But if it's allowed, she said, the Graves team has a nationally renowned FBI expert who will take it apart in court.

To Scardino, the bottom line is that the state has no case against Graves but is going to extremes to pretend that it does: "It's junk science," Scardino said. "I am embarrassed and ashamed of my fellow lawyers who would agree to use that kind of evidence in a case where a man could die."

This would be an excellent case for Texas appellate courts to reexamine precedents related to dog scent lineups and start getting this type of garbage forensics out of Texas courtrooms.

See prior, related Grits coverage:

• CNN profiles cop wrongly accused by dog scent lineup
  
• A 'scent lineup'? Rover in the witness box
• DNA exoneration indicts Rover in the witness box
• 'Scent lineups stink to critics'
• 3 false convictions relied on dog-based scent lineups in Florida
• Scent lineups by dogs don't pass the smell test
• Texas Innocence Project vetting dog scent lineup cases
• Evidence mounts against dog handler, scent lineups
• Texas Innocence Project report discredits dog 'scent lineups'
• More innocent people accused by dog 'scent lineups,' but FBI now using technique

American Violet DVD released

Pete at Drug War Rant informs us of the DVD release of the feature film American Violet, which is based on a prominent drug-war scandal out of Hearne, in Central Texas near Bryan:

American Violet is an important and compelling film based on the real-life incident in Hearne, Texas where a large segment of the African-American population was busted on false drug charges in a massive operation. One young single mother, with the help of the ACLU, brought the house of cards down.

The film is available today on DVD and Blu-Ray. Get it now at Amazon or it’s also available through Netflix.

• Main American Violet Site
• IMDB entry