Were indigency, amnesty programs for Driver Responsibility Surcharge secretly "dropped"?

The Dallas News today has a story on the Driver Responsibility Surcharge program that worrisomely neglects recent board-level activities on the subject at the Public Safety Commission in the last six months. Here's a substantial excerpt:

The Texas Driver Responsibility Program was designed to assess large additional fines – into the thousands of dollars apiece – to discourage certain offenses, such as drunken driving, and generate money for trauma care and highway construction. ...

And while the Legislature may give some relief to lower-income drivers in two years, a leading critic said the program remains a modern-day "debtors prison" for a large number of Texans. An estimated one in nine arrest warrants in Austin, El Paso and other cities are being issued because of the surcharge program.

"It's a complete failure," said state Sen. Eliot Shapleigh, D-El Paso, who sponsored unsuccessful legislation to kill the program last year. Shapleigh was able to insert language into a related bill that would waive surcharges for indigent Texans, but it won't be effective until the fall of 2011, and then only if it has no significant impact on the state budget.

"What's happening is that people can't pay their fines, and then they lose their driver's license. That means they can't get to work," he said. "It has a snowball effect that's hurting a large number of citizens."

Gov. Rick Perry, who signed the surcharge legislation into law, remains a backer of the program despite its troubles. In signing the measure in 2003, he cited projections indicating it would raise $1 billion for trauma care centers by 2008.

"The governor continues to support this program, but he expects the Public Safety Commission to continue looking for ways to improve it," said Katherine Cesinger, a spokeswoman for Perry.

But the program never worked as planned. More than 60 percent of the surcharges – $1.05 billion – has not been paid. Of the 1.9 million Texas drivers who have been told to pay, about 1.2 million have not, nearly two-thirds of those in the Driver Responsibility Program. If drivers don't pay, their licenses are automatically suspended 30 days after their initial conviction.

The state has collected more than $672 million, but none of it has gone to highways. And just a fraction has gone to trauma centers, said Shapleigh, who noted that the original push for the program came during the state's budget crunch in 2003, when lawmakers were scrambling for new revenue sources. The money is sitting in the state Treasury. The law that created the program required that collections pass a certain threshold before money is allocated.

The story oddly doesn't mention that the Public Safety Commission in August ordered staff to draft rules implementing an amnesty/indigency program; most recently I was told they would come up at the PSC in February.

In that light, one is mildly alarmed about a sentence toward the end of the story declaring "The Public Safety Commission at one time was considering a partial amnesty and incentive plan to boost payments, but that effort has been dropped." If that effort has been "dropped," that's not anything that was ever announced to stakeholders.

The last public action by the PSC I'm aware of was a motion by Commissioner Tom Clowe unanimously approved at the September meeting directing staff to bring back a version of the proposed rules that would apply retroactively. At the time, commissioners seemed enthusiastic about the proposal. DPS staff have insisted since then that they wouldn't share the draft with the public or members of the Legislature until the board had seen them. Maybe the rules have since died due to some invisible, internal bureaucratic machinations, but that's not what I was told as of Friday.

Supposedly Governor Perry's office expressed concern last fall about the fiscal impact of reduced surcharge revenue, which probably accounts for the delays. But rather than view this as lost money - and keep in mind they weren't collecting 70% of it, anyway - from a free-market perspective, the suggested DRP amnesty rules in practice amount to a substantial tax cut for 1.2 million Texans. What's more, in some cases lowering surcharges to manageable amounts could generate higher payment rates that offset losses. And amnesty would give drivers incentives to become street legal and buy insurance, whereas currently the surcharge is a disincentive that spawns illegality.

In an election year, you'd think it'd be easier to sell a policy that de facto puts money in the pockets of 1.2 million Texans and reduces the rate of uninsured drivers. In my fantasy world where I have enough money to buy the list of 1.2 million DRP scofflaws from the state and send them direct mail, I'd love to see postcards showing up in these voters' mailboxes telling them, "Times are hard, you deserve a break." There's some latent political oomph behind this issue, in other words, if it were ever properly tapped - 1.2 million people is a lot of folks.

Time will certainly tell, and the delay lets us know something's going on behind the scenes, but who knows what? It probably can't be good. I'll keep rooting around to see what I can find out.

Classics, serious literature included on TDCJ's reading ban list

Eric Dexheimer at the Austin Statesman examined the 5,000 book titles rejected by the Texas Department of Criminal Justice over the last five years and says "Texas prisoners are missing out on some fine reading." A notable excerpt from the story reads:

Novels by National Book Award winners Pete Dexter, Joyce Carol Oates, Annie Proulx and William T. Vollmann have been banned in recent years. Award finalists Katherine Dunn and Barry Hannah are on the Texas no-read list, too, as are Pulitzer Prize winners Alice Walker, Robert Penn Warren and John Updike.

Prisoners can't peruse certain books by Pablo Neruda and Andre Gide, both Nobel laureates. "Krik? Krak!" by Haitian writer Edwidge Danticat, who last year won a MacArthur "genius" grant, is prohibited behind Lone Star bars. Books of paintings by some of the world's greatest artists — da Vinci, Picasso, Botticelli, Michelangelo — have been ordered out of state correctional facilities.

And just because a book is a best-seller in the free world doesn't mean it's available on the inside. Harold Robbins, Pat Conroy, Hunter S. Thompson, Dave Barry and James Patterson belong to the don't-read fraternity. Mystery writer Carl Hiaasen does, too, as do Kinky Friedman and Janet Fitch, whose "White Oleander" was an Oprah's Book Club selection.

John Grisham has had four blockbusters banned since 2005. And inmates will have to wait for parole before diving into "Precious," the book by Sapphire that last year was turned into a critically acclaimed movie.

Political connections don't seem to count for much, either. Her father may have been governor and president, but Jenna Bush's "Ana's Story: A Journey of Hope" made the banned list in November 2008.

Debunking Dallas crime stats

Dave Hiott at the Dallas News Crime Blog doesn't know whether to believe Dallas crime stats anymore, despite purported improvements in 2009. He provides this excellent list of recent Dallas News stories critical of DPD crime data reporting:

The major stories:

-- Police not counting all crimes -- Omitting legitimate auto burglary cases improves stats; system being reviewed
-- Do police count all burglaries? Kunkle says intent must be clear in break-ins as some fault classification system
-- Experts: Dallas undercount of assaults builds 'artificial image'

And there's more:

-- Crime counts to change -- Procedural move, review planned after car break-ins underreported
-- Steve Blow: Truth takes a beating in Dallas crime stats
-- Editorial: Crime statistics must be accurate
-- Dallas police count more car burglary reports

More on juvie mental health summit

I couldn't attend the summit at the capitol Thursday on juvenile justice and mental health, but Ben Philpott from the Texas Tribune has a brief podcast covering the event.

See also the group Texans Care for Children's page on the Summit from their website, including selected materials from the event.

Archived video is not yet posted on the Senate website but should be listed here when it becomes available.

Hectoring approach works for John Bradley at Forensic Science Commission, for now

If I were a Forensic Science Commissioner who'd gone to Harlingen for yesterday's meeting, I'd be pretty darn grumpy at my chairman today for:

• Usurping power from commissioners: Bradley refused to put "action items" on the agenda that were designated in the minutes from the last meeting.
• Hijacking the meeting agenda: The chairman arrived in Harlingen with a detailed set of "rules" that were never authorized by the commission and insisted they focus on them exclusively.
• Concealing key activities from commissioners: Most FSC members were never told the chair was drafting rules nor did they authorize him to do so. They were first informed of the rules' existence and given a draft the day before the meeting.
  
• Wasting commissioners' time: After spending all day on "rules," the chairman revealed at the end of the meeting that the commission had no rulemaking authority, announcing that these were only voluntary "guidelines" representing an informal agreement that is "not even enforceable on ourselves."
• Ignoring "process": Though the Commission historically operated under Robert's Rules, Bradley ran the meeting on a "consensus" basis, which removed limits on the chair, obfuscated members' right to control the process, and allowed Bradley to railroad through his agenda.
• Dissembling: When a commissioner told the chairman her vote hinged on whether old cases already in the pipeline - including ones where the Commission had already paid outside consultants (there are only two) - would be subjected to the new committee process, Bradley said no, they would not. After the vote, when the meeting had nearly ended, Bradley insisted that Willingham's case must go through "part of" the new committee process. If he'd been honest about that during the debate, IMO a majority of commissioners present wouldn't have supported his rules.

That was really quite a display. I'll give him this. John Bradley came into Harlingen with an agenda; he was on his A-game when other commissioners were back on their heels and didn't know what to expect; and as a result he got what he wanted out of the meeting: Delay discussing anything substantive about flawed forensic science and a new "process" in which he can bury the Willingham case in committee until after the November election.

It was a pretty brazen performance, but judging by minimalist MSM media coverage, the Williamson County DA clearly made a good bet that - by moving the meeting to the Rio Grande Valley on a Friday and waiting to produce the rules until the last minute - he would get away with such bold hectoring of the commission. It's not a great start to Bradley's relationship with his fellow commissioners, but he's obviously not there to make friends. He's there to delay the commission's work and to impede the Willingham investigation by hook or by crook. And he's succeeding.

MORE: See AP's coverage of the meeting.

More delays on DPS driver responsibility rules

The Public Safety Commission met today but did not take up proposed (though still unveiled) new amnesty and indigency rules for the ironically named Driver Responsibility Program, I was told by a reliable source. This person indicated it would be taken up next month, but then I was also told it would be taken up this month, and back in September ...

These delays and an ominous silence from within the agency about what changes have been made to the original proposal make me nervous, but I'm trying to remain hopeful that this news doesn't mean they're weakening the proposed amendments behind the scenes.

RELATED: Thanks to a reader for pointing me to this recent column by state Sen. Eliot Shapleigh on the DRP rules, arguing that "Our founders never intended for debtor’s prisons to substitute for a tax system."

Forensic Science Commission meets today, but does it have rulemaking authority? Some say "No"

(LIVEBLOGGING BELOW) This was received via email from the national Innocence Project out of NYC, which will webcast today's Forensic Science Commission meeting out of Harlingen:

As you are probably aware, the Texas Forensic Science Commission is meeting [this morning] for the first time in six months. This is the commission’s first meeting since Gov. Rick Perry suddenly replaced its chair and several of its members while it was in the middle of an investigation into the case of Cameron Todd Willingham.

The Innocence Project will stream live video of the meeting on our website. The meeting begins at 9:30 a.m. (Central) on Friday, January 29, and will run several hours. Newly appointed commission chairman John Bradley decided to hold the meeting in Harlingen, which makes it difficult for many interested parties in the state to attend. Those who cannot be in Harlingen can watch the meeting live online starting at 9:30 a.m. (Central).

The agenda for the meeting is here. The Willingham case is not on the agenda, which Bradley set, although it was on the agenda for the last scheduled meeting of the commission (which was canceled when Gov. Perry replaced the chair and several members). ... The agenda for tomorrow’s meeting does include a discussion of pending cases. Also, individual commissioners have the authority to place a discussion of the Willingham case on the agenda during tomorrow’s meeting.

Willingham was executed in 2004 for allegedly setting a fire that killed his children. Before and after his execution, leading experts found that there was no scientific basis for deeming the fire an act of arson. The Innocence Project formally asked the Forensic Science Commission to investigate the case in 2006. That request specifically asked the commission to determine whether there was negligence or misconduct in the forensic analysis that initially deemed the fire an arson and – importantly – to determine whether other arson convictions in Texas may have been based on the same kind of unreliable forensic analysis. Nearly two years ago, the commission unanimously decided to pursue an investigation, which proceeded in an objective, transparent fashion until October 2009, when the chair and several members were removed. For full background on the Willingham case, go to: http://www.innocenceproject.org/willingham.

I was also forwarded by the Innocence Project a letter they'd sent to every individual commissioner arguing why the shift in focus toward policies and procedures is unnecessary. When I asked this morning, they wouldn't post it online until after the meeting. But a notable portion of the letter reads:

We were surprised by Mr. Bradley's suggestions since the Commission has proceeded transparently, with regard for its enabling statute and Texas law, and with advice from the Attorney General's office throughout the process. The comments also raised questions for us about whether the Chair, without a majority vote of the Commission, might be able to unilaterally invalidate, alter or delay the Commission's ongoing work. This is of particular concern to us as a case that we submitted three years ago is now approaching the final stages of review by the Commission.

Consequently we asked the law firm of Weil, Gotshal & Manges to educate us about two related legal issues: (i) The proper procedures for decision making by the Texas Forensic Science Commission; and (ii) The relative authority of individual commissioners, inclusing that of the presiding officer. ... In summary,[Weil's] memo finds:

• The enabling statute for the Texas Forensic Science Commission did not provide the Commission with rulemaking power;
• The Texas Forensic Science Commission is not a "state agency;"
• The Commission appropriately established the policies and procedures that enable it to fulfill its statutorily prescribed duties;
• The business of the Commission is governed by parliamentary procedure, which directs that the powers of the presiding officer are generally ministerial, and that the will of the majority controls; and
• There does not appear to be any reason to further delay the Commission's pending investigations, and that it would be most appropriate in light of the Commission's statutory responsibility for the Chair or any Commissioner to propose that a vote be taken at the January 29th meeting to renew action on such investigations as soon as possible.

The legal analysis echoes what the Attorney General's representative has already told the Commission. The Commission sought and received speciffic and tacit approval about how it conducted its meetings from the Attorney General's representative who was present during your meetings. In short, it is clear that the Commission does not need to take time from its ongoing work to revisit its operating policies and procedures.

You can watch the proceedings here starting at 9:30. Sounds like commissioners who dislike the chairman's new approach may now have more ammunition to push back, if they choose to use it.

UPDATE (11:03): I've only gotten to watch bits and pieces so far, but a couple of commissioners were pretty unhappy that Chairman Bradley had begun drafting rules and issuing statements to the media without the knowledge or consent of other commissioners. The Commission never approved that work, the chairman was told, and they felt like he was going around them. Bradley replied with a tone-deaf retort that they should have known because he'd said he was working on new rules in his op ed, though he apologized if his fellow commissioners felt left out.

When a commissioner suggested that, instead of Mr. Bradley's unsolicited "rules," they instead take up the half-dozen "action items" listed in the minutes from the last meeting, the chairman declared that they would only discuss items listed on the agenda. The room appeared disgruntled, and rather than debate the matter further Bradley declared they would "take a break" and resume in ten minutes with a discussion of his proposed policies.

Bottom line, for somebody concerned about having procedures in place, some members think Chairman Bradley violated the commission's existing procedures by moving forward on unauthorized action items while ignoring the action items the group was working on before he came on board. That's a pretty plausible interpretation, if you ask me.

NUTHER UPDATE: (11:30) Chairman Bradley now is going down the detailed list of his proposed new rules and nobody on the commission is asking any questions or debating the sometimes rather arbitrary language. (One wonders what was said to whom during that break?) These rules are way too much for the commission to digest and vote on in one meeting when they'd never authorized their creation in the first place. I hope they vote to delay the rules to give more time for public vetting and that someone on the commission moves that all of their old action items be placed on the next agenda.

AND MORE: Now commissioners are speaking up, particularly about the narrow definition of "misconduct" that requires the FSC to prove an actor's behavior was "deliberate." One commissioner (I wish I could match names to faces!) said that evaluating individuals' culpability was outside the scope of the commission's charge to investigate science. Another said the requirement of showing "deliberate" misconduct meant too many errors would get a pass.

Bradley replied by saying the Legislature told them to investigate "misconduct," which implies passing judgment on intent. And Dr. Peerwani pointed out that cases could still be investigated as "negligent" if intent couldn't be proven. Annoyingly, Bradley's schtick was filled with comparisons to prosecutions and the rights of criminal defendants, but the FSC does not investigate individuals and has no power to punish them. Their focus is on bad science, not bad actors.

Unfortunately these proposed rules aren't available online, and commissioners only got them yesterday, they lamented. In an astonishing moment of hubris, Bradley announced he "cannot be held responsible" for failing to get commissioners' input on either the meeting agenda or the rules! He claimed doing so would have violated the Open Meetings Act. That seems highly unlikely. Other state commissions get such information to members in advance of their meetings.

AND MORE (11:51): Complaints were made that the most controversial sections of Mr. Bradley's rules are also the portions with no references to sources and appear not to rely on definitions and standards from other jurisdictions or the feds, who are currently in the process of addressing exactly these questions. Dr. Sarah Kerrigan said the FSC should wait for those national standards to be fleshed out, but Bradley said he wouldn't wait on the feds to act and the Commissioners in the room were more qualified than whoever the feds had assigned to the job. (Of course, Bradley didn't consult all the knowledgeable people in the room - he wrote the standards himself!)

(12:05): The AG rep described a "small gap" in the negligence and misconduct definitions (I don't have a copy so I can't be specific) that includes people who are aware of professional standards and fail to follow them but where the incident may not rise to the definition of "negligence" in the rules - a category the AG's rep said would likely make up a large number of cases submitted to the commission. The scientists on the committee didn't seem to understand the significance of what was being said to them on this score (and the defense attorney's rep isn't there), so they moved forward without changing the language or closing the "gap." Ouch!

(12:16) This just occurred to me: If the FSC is a "state agency" as Bradley contends (contradicting the Weil firm's interpretation), can they really enact these rules today, as the chair keeps saying? Don't they have to publish the rules in the Texas Register then hold a public hearing like everybody else? Surely Chairman Bradley can't just hand out a long set of rules the day before the hearing then push for a final vote the next day? For somebody concerned about "process," he's pretty quick to ignore such formalities!

(12:24): They're on a break. I wish these commissioners knew more about parliamentary procedure; Bradley's running the show on the agenda, but they get to make motions, too! Someone should have moved to add the other six action items from the last meeting's minutes and take them up first!

(12:28): Bradley wants the Commission to meet less often and for more work to get done in new committees yet to be created, whose chairs he wants sole power to appoint.

(12:43): Lots of pushback from several committeemembers on the chair's overreaching power in the rules, particularly by Dr. Kerrigan. They democratized the committees somewhat, requiring their membership to be approved by the whole committee and letting each committee name their own chair. These committees, according to Mr. Bradley, won't be subject to open meetings and don't have to post their agenda before they meet, which judging by his overall goals for the commission is probably in part why he wants to create them.

(12:50): A "Complaint Screening Committee" is the next Bradley innovation. Previously, the whole commission evaluated whether to accept complaints without the open meetings exemption. Bradley has a long, detailed list of case evaluation criteria here that nobody's questioning as they go through it. These rules really need more vetting before adoption.

(1:20): Dr. Kerrigan is asking all the right questions, particularly about the investigations committee structure, but there's a bit of what I'd dub a parliamentary procedure gap. Though the Commission supposedly operates under Robert's Rules, the chair is running the meeting based on "consensus," ironically. That gives him a big edge because it removes limits on the power of the chair. That adds to the edge Bradley enjoys from being the only one who's had more than 24 hours to look at the rules.

Those dynamics have combined to generate many moments during this meeting when someone could move to change the rules in response to criticisms made, but for the most part nobody ever does so. And whenever the cacophony of criticism becomes too strong, it's always the chairman, not the committee, rewriting the draft. Frustrating. I don't always like his agenda, but John Bradley's a smart fella. Manipulative, but smart. Giving commission members the rules draft the day before was really a low-rent move. Wish I had a copy! It's hard to follow the discussion without it.

(1:36): The scope of the proposed legislative committee's issue areas seemed pretty limited to me - more about the commission's own funding than recommending new laws to improve forensic practices - but it's hard to tell without reading them. The chair read the description just once, and pretty quickly. Some committee members are state employees and most of the discussion was about to what extent they were allowed to participate in the legislative process. (That makes me laugh when you consider the sweeping legislative agendas of large agencies like DPS or TDCJ.) Did I mention I'm looking forward to reading the actual rules draft?

(1:50): Bradley thinks the FSC, which currently only has a single staff member (who actually, formally, works for Sam Houston State University), needs its own full-time General Counsel. The FSC's entire staff would then consist of one administrative staffer who's officially paid by someone else and one lawyer - no scientists, investigators, etc.. The AG rep said the duties so far had not overburdened her and she'd not suggested the idea. The committee is pushing back.

The news that the only staffer actually works for SHSU actually makes a strong case for the Weil firm's contention that the FSC is not really a "state agency" at all and therefore not empowered to even create these rules.

(2:02): Kerrigan suggested that the commission's "communications policy" should be written down. Though Bradley had previously ordered commissioners not to speak to the press or other state agencies, he backed off that when Kerrigan pressed him on it and said that decision would be made when they created a written policy, until which they were free to speak to whomever they wanted. Dr. Kerrigan got off a good line: "Talk about us making up the rules as we go along!"

At the end of the process, Bradley himself admitted the FSC doesn't have rulemaking authority! Asked if these were laws, rules, or guidelines, Bradley said "guidelines" is a good word, though he prefers "policies and procedures." He described the policies as an informal agreement. "They're not even enforceable on ourselves," he opined.

So why are they going through all this then?

(2:09): Dr. Kerrigan asked whether these rules apply to pending cases or new ones. Good question! Bradley said new or recent cases would be affected but not those already in the pipeline. A commissioner asked particularly whether cases where they'd already spent money on outside consultants would now have to go through the new process. Bradley said "no."

(2:12): The rules passed. The chair appears quite proud of himself, but the body language of the other commissioners conveys a different set of emotions.

(2:27): Bradley backtracked after the rules passed to say old cases like Todd Willingham's in fact will go through his new committee process. That's a complete 180-degree flip from what he told the commission members twenty minutes ago, back when Commissioner Kerrigan told the chair her vote depended on his answer.

Bradley did not allow public comments - for the first time in the commission's history, one member noted - but told those present they could submit written comments to the commission coordinator if they cared to do so.

Busy day at capitol on juvie, women's corrections

Regrettably, I won't be able to attend two events at the capitol today that look really interesting: the House Corrections Committee meeting this morning on women and corrections and the juvie justice summit going on simultaneously at the capitol. Thankfully, both will be broadcast online and archived, so I'll try to watch them soon. You can watch the Corrections Committee live here beginning at 9 a.m., and the juvie justice summit will be streamed online here.

I received this press release this morning from Texans Care for Children, the group holding the juvie justice summit:

Juvenile Corrections System Acts as Mental Health Provider of Last Resort for Many Texas Families

Panelists at Thursday Capitol Summit on Mental Health and Juvenile Justice will explore the issue

AUSTIN – A Texas parent who resorted to turning her mentally ill son over to the Texas Youth Commission so he could get treatment and the mother of a Texas child with disabilities, incarcerated from ages 10-15, for a misdemeanor are among the families whose stories will be shared at a special Texas Summit on Mental Health and Juvenile Justice Thursday. Family members will be joined by national policy experts, advocates for children and state leaders and their staff for a Capitol discussion about the connection between shortages of children’s mental health services and incidences of juvenile delinquency in Texas.

“Providing more children and youth with reliable access to mental health care, not only can prevent crime in Texas, it also gives more of our kids the chance to be successful,” said Eileen Garcia, executive director of Texans Care for Children, the nonprofit child advocacy organization hosting the summit. “By connecting youth who need treatment to community-based services, we can prevent many kids from acting out in the first place – and we can reverse a trend that now has more kids in Texas than any other state growing up to enter prison, instead of the workforce.”

The Summit, whose partners include Methodist Healthcare Ministries and Texas Mental Health Juvenile Justice Action Network, involves first-hand family stories and policy discussions about:

• The juvenile justice system acts as the de facto mental health delivery system for Texas, and several experts believe this trend is on the rise. Fewer than one in five Texas children diagnosed with a mental illness, serious emotional disturbance, or other condition that puts them at risk of being removed from their home or school actually receives mental health treatment. More than 40 percent of youth involved with the state’s juvenile probation system are mentally ill. In the Texas Youth Commission, a third of all inmates have a serious mental health problem, and not all receive treatment. For example, fewer than half of TYC youth in need of substance abuse treatment receive it.

• Texas ranks 49th in the country in per capita spending on mental health treatment and suffers shortages of mental health providers in two-thirds of its counties. Nationwide, mental health experts say the juvenile justice system is seeing its worst crisis in decades, as few health plans offer coverage for mental health services for children, states cut back on funding for community-based mental health programs due to budget shortfalls, and the number of specialists able to provide mental health services to youth declines.

“All these factors are converging to suggest Texas should act right now to meet mental health challenges head-on at the time when interventions often matter most – early in life,” Garcia said. “We are pleased that the 81st Texas Legislature took steps to close loopholes that prevented some juveniles from getting mental health services they need. The next step must be ensuring services for all youth with mental illnesses, including those in the juvenile justice system today and those we can prevent from entering it in the first place.”

Zero tolerance on TDCJ contraband hasn't worked. What now?

At this point, IMO state officials concerned about stopping contraband at Texas prisons should cease using the term "zero tolerance." It has no meaning at all and makes those who use the term appear incapable of achieving their goals.

This week we learn of a death row inmate who'd taken a picture of himself with a cell phone and had it posted online. This after an inmate last year used a smuggled gun to escape from a TDCJ medical transport - a mystery they still can't solve.

Perhaps Sen. Whitmire should be thankful that the inmate who notoriously contacted him by phone in 2008 didn't send him sexting photos!

I'd don't care what title is in front of your name - Governor, Senator, TDCJ Executive Director, or for that matter, POTUS - announcing a "zero tolerance" policy on prison contraband sets up the person using that language to later be accused of gargantuan failure, as in the case of the escapee with a gun more than a year into TDCJ's zero-tolerance era. As long as prisons have existed in human history, contraband has been smuggled into them.

"Zero tolerance" cannot succeed at its stated goal because human ingenuity (as well as human depravity) is unbounded and government resources are not. The use of the phrase "zero tolerance" for contraband reminds me of its frequent use in response to drugs or graffiti: It sounds good to the public and it certainly indicates someone's upset about the problem, but just saying it don't make it so. In the real world those activities still occur and what's really needed are systems for managing the problems.

Similarly, what's needed at TDCJ, in addition to existing on-the-ground tactics for finding contraband, are separate management-level systems (with authority to require policy improvements) to evaluate each failure and adjust tactics to combat each new smuggling method identified. New incidents should be viewed not necessarily as a failure that requires punishing agency officials (unless it turns out TDCJ staff were directly culpable and violated the law), but as an opportunity to learn and adjust over time in a formal, systematic way. In other words, what's needed is a process, not a slogan; a system, not just an attitude.

Forensic backlogs force tough choices

Bradley Olson at the Houston Chronicle has a good piece on the problem of backlogs at the Houston crime lab ("Backlog woes continue at HPD lab," Jan. 27):

The Houston Police Department has developed a backlog of more than 300 cases in which firearm forensics have not been performed, the third major area of evidence awaiting analysis to build up as the crime lab works to achieve full legitimacy after being engulfed in scandal for years.

Despite years of effort aimed at cleaning up the problems that led to the wrongful convictions of at least four men, backlogs for thousands of cases also have developed in rape kits and fingerprint analysis.

Although the recent issues highlighted in an audit of HPD's fingerprint unit do not involve the crime lab — the two are separate entities — police in both instances have cited ongoing staff shortages, retirements and training requirements to explain the backlog of evidence. ...

The backlogs cause two major problems in the justice system, said JoAnne Musick, president of the Harris County Criminal Lawyers Association.

First, she said, because people often are arrested before evidence is processed, innocent people are jailed and forced into preliminary legal proceedings unnecessarily. Second, criminals who may be identified through forensic testing are able to remain on the streets and, potentially, commit new crimes.

HPD's backlog on processing fingerprints is currently 6,000 cases, reports Olson.

Harris County District Attorney Pat Lykos says in the article that the backlog argues for making the crime lab independent. That could be true, to the extent that the problem is the police department treats it like a dependent stepchild and diverts resources toward patrol or other activities. But whether the lab is independent or part of the police department, the problem of chronic backlogs stems from a shortage of resources - it's going to cost Houston a lot more money to fix this problem, either way, than they're spending on forensics now. The only other option is to choose not to devote forensic resources to certain categories of offenses, and if backlogs become too onerous, to expand those categories. That's a difficult array of political options, but somebody's going to have to make some tough choices to get the seemingly flailing Houston crime lab on track.

Cops expect a discount

From the Hubcap Grill Twitter feed out of Houston:

Geez. LOL. 4 HPD officers didn't order cause I wouldn't give them 50% off. If I get a speeding ticket will I get 50% off?

Via The Defense Rests.

Women's, juvie corrections up for discussion mañana

There are a couple of competing events up at the capitol tomorrow both of which deserve Grits readers attention, and thankfully both of which will be broadcast online. First, via an email from the Texas Criminal Justice Coalition:

On Thursday, January 28, 2010, at 9:00 am in Room E2.010, the Corrections Committee will also hold its first interim hearing to listen to both public and invited testimony on interim Charge 5, to review the range of services provided to females in the juvenile and adult criminal justice systems and hear recommended changes to ensure responsiveness to gender-specific issues. The charge also calls for the review of institutional and community supervision programs and utilization of correctional facilities that house non-adjudicated populations.

Committee members will also hear public and invited testimony on Interim Charge 6, which requires the monitoring of agencies and programs under the committee's jurisdiction.
Click here to view posting!

Note: This event will be broadcast live. If you cannot attend, click here the day of the hearings.

Meanwhile, at the same time the nonprofit group Texans Care for Children will be holding a juvenile justice issues summit. Here are the details from their press release:

WHAT: Texas Summit on Mental Health and Juvenile Justice

WHEN: 9 a.m.-12:30 p.m. and 1:30-3 p.m., Thursday, Jan. 28

WHERE: The Capitol Auditorium, E.1004 (in the Capitol Extension of the State Capitol Building, Austin)

Live broadcast online: http://www.senate.state.tx.us/bin/live.php

WHY: Recent events have put the mental health-juvenile justice connection in the spotlight—from the murder of a Tyler teacher by a former TYC inmate discharged for mental illness, to the spike in the use of new antipsychotic drugs for troubled teens, to the growing number of parents forced to forfeit their children to the corrections system in order to obtain mental health treatment for their kids.

To illuminate these issues and discuss policy solutions for Texas, the summit features:

· Texas parents who turned their children in to the juvenile justice system, Texas’ mental health service provider of last resort

· Nationally renowned featured guests, Kathy Skowyra, David Arredondo, M.D., and Joyce Burrell

· State policy experts in mental health and juvenile justice

WHO: The panelists above, state leaders and their staff, and host Texans Care for Children, a statewide child policy advocacy organization

FOR MORE INFORMATION CONTACT: Christine Sinatra, Communications Director, Texans Care for Children: csinatra@texanscareforchildren.org

I've been a bit under the weather this week but hope to head up to the capitol for at least part of both events.

California begins release of thousands of nonviolent offenders

I normally try to stick to Texas stories, but this news out of California merits the attention of anybody who cares about the topis covered on this blog ("Inmates released under new law," San Diego Union Tribune, Jan. 26):

A new law aimed at reducing the state’s inmate population took effect yesterday and had an immediate effect in San Diego County, where about 260 nonviolent offenders were released.

The convicts here — all doing time for offenses such as drug possession or petty theft — were let go under a provision that forces local officials to retroactively recalculate how they shorten sentences for good behavior and other credits.

Local law enforcement and court officials reviewed the files of 1,600 inmates, including those in county jails, to determine who should get out early, said Lisa Rodriguez, a deputy district attorney. Those convicted of serious, violent or sex crimes aren’t eligible for the accelerated credits, Rodriguez said.

Statewide, corrections officials launched their plan to reduce the prison population by 6,500 inmates and save the state more than $100 million over the next year. They said some of the revamped program’s elements will cut down on recidivism and allow parole agents to focus attention on more dangerous former convicts.

This is just the first step. Judges have ordered California to reduce its inmate population by 40,000 in the next couple of years. If they come even close to that, it will leave Texas (with only 60% of California's population) as the largest prison system in the country.

See related Grits posts:

• States slashing spending costs, closing units
• Some states actually shutting down prison units
• Emptying prisons makes Wired magazine's 'Smart List'
• California must reduce inmate numbers to achieve budget savings
  
• California to release older inmates to reduce medical costs
  
• California's partisan prison meltdown: Why Texas didn't go there

Odds and Ends

Here are a handful of odds and ends that merit Grits readers attention:

Third Court of Appeals reducing backlog
After lagging behind other courts in case backlogs for years, under its new chief justice Austin's 3rd Court of Appeals is making a dent in its older cases. The 8th Court of Appeals out of El Paso now has the longest delays.

Batson not just an issue in old cases
Racial discrimination in jury selection by Dallas prosecutors continued at least until 2002, according to a ruling by a federal appeals court. Judge Catarina Haynes ruled in a so-called Batson challenge that "the state's reasons for striking [black jurors] ... were implausible or invalid, and therefore were pretexts for discrimination." What's more, the story mentions "a 2005 investigation by The Dallas Morning News that found prosecutors excluded blacks from juries at twice the rate they excluded whites.

Pick 'em
Speaking of juries, The Jury Expert has republished Mark Bennett's 16 Simple Rule for Better Jury Selection, which includes an interesting set of responses from various jury consultants.

Steroid investigation ignores juiced cops to go after athletes
Reporters are still trying to link the late steroid dealer David Jacobs out of Plano to professional athletes - most recently Michael Vick - but everybody seems to have forgotten, and stopped investigating, Jacobs' allegations that he'd sold steroids to police officers at five Metroplex departments, only one of which later implemented steroid testing. It continues to amaze me that Texas mandates testing for high-school athletes but not for police officers, though there's a much greater demonstrated problem with the latter than the former.

The Junk Science Conundrum
Jordan Smith at the Austin Chronicle has coverage of the Texas House Criminal Jurisprudence Committee hearing a couple of weeks back on the standards for introducing forensic evidence into court.

Jailed in Wichita County
The Wichita Falls Times Record News published a detailed story walking through the intake process at the Wichita County Jail.

Dallas prosecutor allegedly coached witness, concealed other suspect
The sole witness in a 1995 murder case now says he didn't see the defendant and picked him out "because that was what I was instructed to do by the prosecutor and not because I recognized him as being the shooter." The defendant "was freed after Dallas County prosecutors began to re-examine his case when a memo was found in a police file identifying someone else as a suspect. That memo was never turned over to his defense team as required by law."

Bexar jail suicides up
The year 2009 witnessed the highest number of suicides at the Bexar County Jail in a decade - six, which is the same number they'd seen over the previous five years.

Snitching: Criminal informants and the erosion of American justice
Alexandra Natapoff as a post at TPM Cafe Book Club promoting the themes in her new book, an also provides a link to the excerpted introduction.

Death penalty for corporations?
Now that the Supreme Court has ruled that corporations are people for First Amendment purposes, a satirist wonders if companies can receive the death penalty when they kill?

El Paso medical examiner allegedly lied on resume

Reports KCBD out of Lubbock:

There's more trouble for the former Deputy Medical Examiner of Lubbock County.

Paul Shrode was already under scrutiny amid allegations that he lied on his resume while working in Lubbock in order to get the job as Chief Medical Examiner in El Paso County.

Late last week, NewsChannel 11 obtained documents that indicate that the Texas Medical Board will investigate. A document analyst from Austin who often works for defense attorneys in criminal cases, David Fisher, filed the complaint against Shrode with the medical board.

There have already been questions raised about the science behind autopsies and whether practitioners use sloppy methods. Now we learn that the Chief Medical Examiner in a large Texas county allegedly falsified his credentials. Yikes!

There's a full chapter on autopsies and medical examiners in the National Research Council's report last year on Strengthening Forensic Science which stressed the chronic shortage of qualified forensic pathologists, the lack of (or failure to use) best practices for death investigations, inadequate quality controls, and a lack of university-level research supporting existing techniques. Among the forensic disciplines, this isn't one I've ever focused on much, but clearly Texas has problems in this area, too.

RELATED:

• Add autopsies to the list of frequently shoddy forensics
• Autopsy caseloads rise thanks to shortage of forensic pathologists

HOPE program pilots strong probation methods for addicts without mandatory drug treatment

Drug courts have been at the forefront of using strong probation methods in Texas and throughout the country, but evidence-based practices in community supervision are applicable to all sorts of crimes and don't necessarily involve drug treatment. So I was interested to read this discussion from Reuters distinguishing drug courts from the much-ballyhooed HOPE program out of Hawaii:

The first drug court was founded in the Miami area more than 20 years ago and there are now nearly 2,400 nationwide.

They focus on probationers "because if you use drugs for a long period of time, sooner or later you will more than likely end up in trouble with the law," RAND's Kilmer said.

A number of studies have shown that drug courts reduce crime in their area by up to 40 percent and cut rearrests and convictions by up to 26 percent. According to an April 2008 Urban Institute study, for every $1 spent on drug courts, $2.21 is saved through reduced police, hospital and other costs.

Treatment programs also cost about 50 percent less than incarceration, a fact that has apparently grabbed the attention of many cash-starved U.S. states.

"Quite frankly, we're in a very tough economy," Kerlikowske said. "That is spurring people to look at different solutions, especially ones that cost less than incarceration."

Domanick of John Jay College estimates 800,000 Americans a year are arrested for marijuana and said the situation has become unsustainable. "All of the data shows drug treatment works for people who are ready... if it works, you don't have to spend $50,000 to incarcerate people," he said.

Federal funding for drug courts was increased in the fiscal 2010 budget to $88.8 million from $63.8 million in 2009. West Huddleston, head of the National Association of Drug Court Professionals, said the group aims to use bipartisan support in Congress to seek $1 billion in federal funding over four years to expand drug courts because they only reach about 10 percent of people who need them.

Others like Mark A. R. Kleiman, a professor of public policy at UCLA, argue in favor of a new approach used in Hawaii, called Project Hope. Started by Judge Steven Alm, Hope uses swift punishment of a few nights in jail for those who fail drug tests and makes drug treatment voluntary -- in drug court, participation in treatment is mandatory.

Kleiman said the program had led to a 50 percent reduction in crime and a recidivism rate of 7 percent. "Drug courts are resource hogs," he said. "This system is much cheaper and more effective."

Critics of the program say without treatment for addiction, they doubt that drug addicts can go clean.

Drug Czar Kerlikowske said the Hope program would also be considered by the administration as part of the drug strategy it will make public in February.

For people like Chief Lamkin in St Charles, working with the drug court involves partnering closely with judges and defense attorneys to work out who has a chance of making it through the treatment program and who would be better off going to jail.

"But one thing is clear," he said. "If we locked up all the drug users we'd break the bank. It just isn't physically possible."

I tend to agree that not everyone convicted of drug possession needs mandatory treatment, and many (probably most) drug users who quit do so without treatment. But I know quite a few drug court judges (starting with John Creuzot up in Dallas) who would balk at the prospect of making treatment voluntary.

OTOH, Dr. Edward Latessa and others have argued for focusing treatment resources on only the most high-risk offenders, and that high treatment levels for low-risk offenders actually increase recidivism. That mitigates in favor of HOPE's approach. It's likely the majority of drug-possession defendants don't fit into the "high risk" category.

Latessa argues for use of screening and assessment tools to figure out where is that dividing line among drug users - who would benefit from mandatory treatment and who would not. At the HOPE program, though, the process is essentially self selective. Treatment is not initially required, but "repeat offenders are often ordered into residential treatment."

In any event, with all the attention paid recently to Hawaii's HOPE program, which has been touted as among the most promising strong-probation methodologies, I hadn't realized that key distinction compared to drug courts - the lack of mandatory treatment, at least on the front end. That probably represents better stewardship of scarce resources than a one-size-fits-all approach.

MORE: Thanks to Jake Horowitz for letting me know that the Pew Trusts' Public Safety Performance Project this month released a research brief (pdf) on the HOPE program based on an evaluation (pdf) funded by the National Institute of Justice that came out in December.

Forensic commission meeting in Harlingen, but Willingham off the agenda

The Texas Forensic Science Commission will meet on Friday in Harlingen, about as far away from the capitol press corps as the new chairman could set the meeting. As described by the Washington Post ("Texas panel to meet, but Willingham not on the agenda," Jan. 22):

The meeting is the first since July. In September, Perry dismissed three members of the commission, two days before it was to consider a report critical of the arson finding that led to the execution. Bradley canceled the subsequent meeting.

The Willingham case is not on the agenda for the upcoming meeting. Nor is Craig Beyler, the renowned fire expert who authored the report in question.

Bradley said he isn't ignoring Willingham, and that the board's investigation of the case could conclude this summer. He said he will assign pending cases, including Willingham, to the nine-member body, which includes a defense attorney and several medical examiners.

He said his top priority is bringing structure to the commission, which he said doesn't have policies in place that answer "simple questions, like 'What is the standard for accepting or rejecting a complaint?'"

But the shift in emphasis from Willingham to procedural matters confirms the fears of those supporting the Willingham inquiry. Barry Scheck, co-director of the Innocence Project, a New York group that focuses on overturning wrongful convictions, called it "an agenda that deflects attention from what everybody wants answered."

And Sam Bassett, the panel's deposed chairman, said it appears the group's new direction "is in my view unnecessarily delaying the investigations we had going." ...

Bradley said he chose Harlingen because a new commissioner lives there, because of interest from state Sen. Juan "Chuy" Hinojosa and to show diversity in the location of the meetings.

Scheck said the Innocence Project hopes to broadcast the meeting on the Internet.

"There is intense public interest," Scheck said. "We certainly are interested in seeing that the commission ... is not hijacked and its good work undone by a chairman trying to jettison and repudiate all their past work."

With this news about the FSC agenda, I think we've got an answer to a question that's been open since last fall, as I put it in this Grits post:

we don't need to listen to Mr. Bradley's words to know if this was a political ploy, we can observe his actions. If the commission quickly reschedules the Willingham hearing before the gubernatorial primary and the chair allows them to produce strong recommendations as a result, it will quickly, easily dispel criticisms that Mr. Bradley is just a political hack brought in to hide the truth instead of seek it. I'd be more than happy to publicly eat crow for my critiques of Bradley's appointment if that's how things pan out.

If on the other hand the Commission's Willingham inquiry is delayed past the March primary or shut down altogether, all the excuse making in the world won't convince me this wasn't, as Paul Burka called it, a straight-up "Cover Up."

So now we know. The inquiry into the validity of arson science in the Willingham case will be put on hold until after the March primary. Is anyone surprised?

What's more, given that the commission could hardly "conclude" its business on arson science by this summer if they won't even address it at this meeting, part of me suspects from Mr. Bradley's statements that he hopes to establish procedures at the Harlingen hearing then dismiss the case on procedural grounds instead of evaluating the merits. I'd also expect him to "assign" the case (by some procedure, one assumes, he hopes to create on Friday) to one of the Governor's new appointees who likely share his apparent goal of delaying or sidetracking the investigation. Perhaps that's too cynical. We'll soon see.

The article mentioned the NY Innocence Project hopes to broadcast the meeting online, which is a lot more attention than anybody has paid the the Forensic Science Commission in the past. One of the juicy ironies of this episode is that, by trying to cover up findings about invalid science used to secure the death penalty, the Governor and Mr. Bradley have unintentionally focused more attention on the subject and the agency investigating the problem than was ever the case in the past.

Correction: Long term estimates support multi-billion savings from prison diversion

I'd suggested the other morning that a national study (pdf) by the National Council on Crime and Delinquency overstated potential cost savings to Texas from implementing alternatives to incarceration. I forwarded the post to them, and they responded in the comments that their methodology included savings from future costs over the length of what would have been their sentence. In other words, I was focused on short-term savings and their estimate covered the out-years beyond the biennial budget. My bad; their math was good. Here's their response:

Thanks for your comment regarding our newest publication. We hoped that it would generate discussion on the topic.

There are many factors to consider in a cost analysis. We believe that we have put forth the most accurate report possible within the limits of the available data, and we appreciate the chance to respond to any comments.

The 2009 budget for TDCJ was $2.9 billion. However, this is an annual operating budget and not directly relevant to our calculation. Our calculation of $2.8 billion is not based on a single year but rather, on the cost of incarcerating an individual for an entire sentence. In Texas, the average nonserious offender is behind bars for approximately four years.

Specifically, our figure was derived by multiplying the number of nonserious offenders by the annual cost per capita times the average number of years served. According to the National Corrections Reporting Program, the average prison time served in Texas for nonserious drug offenders is 48.6 months and for other nonserious offenders is 38.4 months. Thus the weighted average cost of incarcerating nonserious offenders is 3.9 years per inmate. This times $17,400 per year is $69,405 per inmate. This is the key difference between your calculation and our report. We then multiply that total cost per inmate by 80% of nonserious offenders (or 40,821) and arrive at $2.8 billion.

Annual savings could be derived similarly by using new admissions to prison instead of the sitting population. We estimate that an annual cost savings would be roughly 1/3 of the one-time savings. This is another valid way to look at the issue. There is ample detail on our methods on pages 4 and 5 of the report, and in each state section.

The costs for alternatives come from reports by the Texas Criminal Justice Policy Council and the Texas Legislative Budget Board. They represent costs of the programs that are run in Texas, adjusted for 2009.

We are glad that we agree on the importance of helping policymakers and the public understand that large numbers of inmates can be effectively sentenced to alternatives, saving tax-payer money and still protecting public safety.

My apologies for the error.

Unfortunately, state budgetmakers (and my initial, erroneous post) look at savings in terms of short-term, two-year increments, which is one reason why it was remarkable that Texas made its 2007 and 2009 investments in prison diversion programming. While long-term numbers clearly support prison diversion, in the first biennium it was proposed, to budgeters diversion looked like an "extra" - something they could justify mainly because key committee chairman assured them it would let them avoid spending billions on new prisons (which turned out to be accurate).

Now a few years out, we can see that Texas' incarceration rates have dropped, that crime has not increased as a result, and that the number of Texas prisoners is actually dropping whereas earlier we were projected to need 17,000 more beds by 2012. But as these remarks point out, those investments pay off over a longer term than just the initial biennium.

Expanding on those investments, as NCCD advocates, represents the best path forward toward further reducing incarceration rates and actually beginning discussions in earnest about closing prisons and significantly reducing the number of prisoners.

Texas needs process to vet convictions based on forensic hokum

It's time to put in place a process for reviewing convictions when key forensic testimony that helped send people to prison turns out to be a bunch of hokum. The FBI's response to cases involving bullet-lead analysis, while too leisurely by far, provides a starting point if Texas can decide who's going to carry the ball. According to AP ("FBI reviews cases where flawed evidence used," Jan. 18):

Nearly five years after the FBI abandoned its so-called comparative bullet lead analysis, the FBI has yet to complete its review of nearly 2,500 cases where law enforcement used such evidence to investigate a case.

So far, the agency has found 187 cases where so-called comparative bullet lead analysis evidence was not only used in the investigation, but came into play at trial where FBI experts provided testimony. It has notified prosecutors in those cases where testimony from its experts "exceeds the limits of the science and cannot be supported by the FBI," one agency letter says.

At least three convictions — that of a Colorado man who served 12 years in prison for a double slaying, a Florida man who served 10 years after being convicted of killing his wife, and an Oregon man convicted of a triple slaying — have recently been overturned.

All three men are now free.

Comparative bullet lead analysis was based on the theory that lead bullets pick up trace elements such as copper, antimony, arsenic, bismuth and silver during manufacturing. When the soft metal is shaped into bullets and packaged, bullets in the same box would contain similar amounts of the trace elements, the theory went.

FBI lab technicians compared bullet fragments from a crime scene with bullets possessed by suspects. If the trace elements closely matched, prosecutors — backed by FBI testimony — would argue the suspects' guilt.

Defense attorneys say the analysis appeared to be a miracle of science: It required a small nuclear reactor, once housed at an FBI lab at the Hoover Building in Washington, D.C., and relied on the expertise of only a handful of qualified FBI agents.

FBI experts wowed jurors by explaining how gamma rays, energy released from bombarding a bullet with neutrons, could be measured to make a match.

"Sure, you have this whiz-bang, whipper-dipper machine that looks at all the elements of the universe, but it doesn't mean anything," said attorney Dave Wymore, a former director of the Colorado public defenders office who fought successfully to exclude such evidence in a triple-murder case and won an acquittal in 1999.

The FBI began the tests in the mid-1960s. It quit in 2005, after the National Research Council of the National Academy of Science concluded that while its methods of measuring trace elements were sound, its conclusions were flawed. Millions of other bullets could contain trace elements in identical quantities, the council said. That rendered the FBI's box-by-box conclusions meaningless.

This type of review should be triggered whenever older, flawed forensics are discredited by modern science, though obviously it needs to occur with much greater alacrity than is happening at the FBI. It would also behoove the feds to send notice to defendants, as well as prosecutors, and to provide notice in cases that resulted in a plea bargain. In the face of damning but false forensic evidence, an innocent person may take a plea to avoid the steep "trial penalty," which is to say the much higher sentence defendants receive if they take their cases to trial. We know from the stories of DNA exonerees that it's not unheard of for an innocent man to plead guilty under those circumstances.

There's an immediate need for Texas to figure out how to vet old cases with faulty forensics. For example, Fort Bend County Sheriff's Deputy Keith Pikett announced he's retiring this month soon after the Court of Criminal Appeals agreed to hear a case evaluating the validity of his work with bloodhounds performing "scent lineups" for prosecutors all over the state, including for the Attorney General's office. Recent DNA exonerations of men accused by Pikett's dogs - including a police officer falsely accused of murder - combined with national dog experts' criticisms of his methods and the deputy's exaggeration of credentials in trial testimony, have made Deputy Pikett a statewide poster boy for the kind of shoddy, less-than-reputable forensics that Texas' weakened standards for forensic evidence have come to routinely allow.

Looking forward, let's assume for the sake of argument that the Court of Criminal Appeals concludes later this year that Pikett's methods don't pass muster. Nobody knows how they will decide, of course, and the CCA's track record leans toward admitting such evidence. But my sense is the Court took the case to overturn precedents allowing Pikett's testimony, based in part on apparently perjured testimony about his credentials, especially since he's the only person in the state who performed this procedure.

If Deputy Pikett's work with dogs is declared invalid by the court, somebody needs to step up and take responsibility for vetting those old cases and notifying prosecutors (or better yet, both parties) in cases where Pikett performed lineups.

Deputy Pikett boasts that his dogs have performed scent lineups in some 2,000+ cases over the last 20 years. Vetting them is not an insurmountable task if somebody like the Attorney General decided to staff the project. I'm willing to bet this cop cleared by DNA wasn't the first person Pikett's dogs falsely accused, and it wouldn't surprise me if there are a significant percentage of false or questionable convictions in cases where Pikett testified or his "evidence" was used to pressure a plea bargain.

The Fort Bend Sheriff could perform this task--it was his employee engaging in junk science--but the Sheriff has consistently defended Pikett's work. That's why it makes more sense to set up the review process in an office independent of the original investigation.

So far Attorney General Greg Abbott has also balked at undertaking this responsibility, even in cases where his own prosecutors used Pikett's dog-scent evidence. Maybe that will change depending on the Court of Criminal Appeals' ruling (or perhaps after the November election).

Old arson cases based on unscientific, since-discredited folklore in my opinion deserve the same kind of comprehensive review. Again, we're talking about a finite, identifiable number of cases. It would be a large job but not an insurmountable one. Researchers in other jurisdictions are already developing a screening process to vet old arson cases, so nobody would have to reinvent the wheel. The Todd Willingham case got the debate over faulty arson forensics sidetracked into a death penalty dispute, but the truth is a lot of people have been convicted because an arson "expert" told a jury things were true about fire that science has since discredited.

This isn't going to be the last time this comes up. How should we respond when we discover innocent people were potentially sent to prison based on flawed forensics? With the exception of Dallas District Attorney Craig Watkins, so far the answer among Texas state law-enforcement leaders has mostly been to look at one another in embarrassed silence, hoping somebody else will step up first so they won't look soft on crime. But it's not "soft" to believe that innocent people shouldn't go to prison, or stay there, based on discredited forensics. And it only makes sense to develop systems to handle that eventuality instead of relying on underfunded nonprofits and law students to perform the task ad hoc.

If the AG continues to sit on the sidelines, the Legislature next session should consider assigning the task - with clear mandates and sufficient resources - to the Forensic Science Commission, which surely merits a dramatic overhaul, anyway, after the recent Todd Willingham fiasco. The agency should be empowered (and required - no malingering, JB!) to perform this type of review-and-notice function whenever courts or the Commission determine that modern science has rebutted older, discredited forensic methods.

Just like when DNA evidence first began exonerating defendants in ways Texas laws had never countenanced, we're at at a moment in history when there's an obvious need for a way to move forward but no existing process. Somehow, some way, the state needs to create one. Executive branch leaders could and arguably should take the lead on their own volition, but if they don't the Legislature should mandate their action, just like they had to require courts to allow postconviction DNA testing when prosecutors refused.

El Paso judge caught on tape accepting bribe

The evidence coming out in this El Paso corruption trial sounds pretty damning. The El Paso Times reported yesterday that:

Jurors today watched a videotape of an FBI informant paying money to state judge Manuel Barraza in return for favorable treatment in her sister's drug case.

The exchange occurred in Barraza's courthouse office while he was the presiding judge of a drug court.

The tape was one of five played in U.S. District Court during Barraza's corruption trial.

Jurors heard a total of five taped conversations between Barraza and Sarai Valencia, sister of criminal defendant Diana Rivas Valencia. Sarai Valencia and Barraza talked about his getting paid in money and sex for helping Rivas Valencia, who was arrested in September 2008 and charged with possessing 2 kilos of cocaine.

Jurors also watched a videotape of a meeting between Barraza and Sarai Valencia inside Barraza's office. She made the recordings at the behest of the FBI.

Given the evidence against him, one wonders how in the world did this guy not choose to plea out?

Dallas to use DNA in auto theft cases

The Dallas PD will begin using DNA in auto theft cases, reports the Dallas News. This will make them, to my knowledge, the first Texas police department to routinely use DNA evidence in property crimes. Jurisdictions in other states have had success using DNA for home burglaries, but the Dallas pilot will focus on auto theft.

In particular, it's worth closely watching whether expanded use of so-called touch DNA in property crime investigations will overwhelm state crime labs. DNA labs have big backlogs, and if it begins to be used widely in property crime cases, the system could bog down pretty quickly.

RELATED:

• DNA could solve burlgaries if crime labs were bigger, better, more trustworthy
• Large backlogs for DPS forensics testing
• Unanalyzed evidence held by law enforcement agencies
• Test possible innocence cases among Bexar DNA cache
• Backlog of DNA cases complicates Houston crime lab's bias problems

NPR investigates Lubbock bail system: Should taxpayers foot a $7K incarceration bill for stealing $30 worth of blankets?

About half a dozen readers this morning fowarded me the link to this excellent piece from National Public Radio titled "Bail Burden Keeps US Jails Stuffed with Inmates," which features the Lubbock County Jail as its prime example. The story opens by describing the case of Leslie Chew, a homeless man arrested for stealing four blankets worth $30 from a grocery store to stay warm while he was living in his station wagon last winter. At the time the reporter spoke to him last August, Lubbock taxpayers had spent $7,068 to incarcerate Mr. Chew because he could not make bail.

NPR also documents the overarching (and improper?) influence bail bondsmen appear to have over pretrial release decisions in Lubbock County, as evidenced by this notable excerpt:

There are about a dozen bail bond companies in Lubbock, serving a rather small population of 250,000. [Local bail bondsman Ken] Herzog says it's a cutthroat business that leaves no room for even a modest pretrial release program. As an example, he describes a time he was working to make bond for an inmate. A clerk at the courthouse told him that the inmate had been interviewed by pretrial release program workers who were working to get him out of jail.

"I said, 'Oh no, they ain't,' " Herzog says he told the clerk. "So I went to the judge that signed the motion for pretrial and told her what was up. They had no business even talking to this person. They pulled their bond, and I got the person out of jail."

I ask him if he is talking about Henderson from Lubbock's pretrial release office. "If he gets in my business, I told him, 'I do this for a living,' " Herzog says. "I said, 'You don't do that. We set this thing up.' I said 'I'll work with you any way I can, but you're not going to get in my business.' Well, he backed off."

It's unlikely Henderson had much choice. Henderson works for county officials. And county officials are elected.

"We take care of the ones who take care of us," Herzog says. "We don't want to pay anybody off, per se. We just want to support the people who are trying to help our business." ...

According to Lubbock campaign records, bondsmen make frequent donations to elected officials. Indigent jail inmates do not.

I wonder how common is such ex parte contact with judges by bail bondsmen in other counties? I've been covering these issues for a while and not much surprises me anymore, but I had no idea that criminal court judges allowed bondsmen (read: campaign contributors) to approach them ex parte on an individual case to keep a defendant from being processed by the county pretrial release office! I'm not an attorney and I can't say offhand if that's legally permissible, but it sure doesn't pass the smell test.

It also fascinated me to learn that the Lubbock County Jail charges the county pretrial services office for collect calls from inmates, which county commissioners have not given them the budget to accept. Since that's just money shifted from one county department to another, it'd be easy to remedy that, but NPR says it's that way because it's how the bail bondsmen want it.

Strong stuff, read or listen to the whole thing. This is the first in a promised three-part series.

CCA candidate Hampton flip flops on eyewitness ID

The campaign manager for Democratic Court of Criminal Appeals candidate Keith Hampton emailed me to ask if I would republish this blog post from Burnt Orange Report by Keith titled "My Recommendations for the Forensic Science Commission." Here's what he wrote:

Last week, the House Criminal Jurisprudence Committee, chaired by Representative Pete Gallego, invited me to testify about how Texas might improve the state of forensic science.

Texas has exonerated many individuals who were wrongfully imprisoned, and many of the exonerees were victims of bad identification procedures, prosecutorial misconduct, incompetent representation and junk science. During the last session, as the legislative director for the Texas Criminal Defense Lawyers Association, I worked for meaningful reform of eyewitness identification, among many other issues. In my testimony to the committee, I made these recommendations based on the principle that the interests of science should be paramount to the interests of legal adversaries:

1. The Forensic Science Commission should be overseen and managed by scientists and not lawyers. Lawmakers can easily make a change to the statute that ensures a scientist acts as the presiding officer of the Commission.

2. No area of forensics should be off-limits to scientific inquiry. Currently, the statute prohibits the Forensic Science Commission from investigating fingerprint examinations, breath-testing and digital evidence. All prohibitions should be removed and the Commission should be permitted to investigate all forensic science it deems necessary.

3. The Commission should become the accrediting agency for Texas crime labs. The Commission should also determine the error rates of all accredited crime labs and publish them on the Commission website.

All of these proposals would advance the integrity and scope of the Commission and its ongoing mission to identify and exclude junk science from Texas courtrooms. Further, in light of the difficult budgetary circumstances our state is facing, none of these measures would entail a fiscal note.

Because of my passion for justice, whether advocating for common-sense forensic reforms or 20 years of defending the underserved in the courtroom, I am now taking the next step towards making Texas’s judicial system the best it can be: I am running for the Court of Criminal Appeals. I hope you share my concerns about the state of forensic science in Texas and will support my campaign for the Court of Criminal Appeals. Please go to hamptonforjudge.com to sign up for my mailing list and make a contribution.

Thank you for your support,

Keith Hampton

I agree with those three proposals (see Grits' coverage of the hearing he's talking about), but not with everything said here. One imagines that, when I was asked to repost this, Hampton's campaign manager was unaware that I'd already left this comment at BOR disputing part of it:

Though Keith and I have not always seen eye to eye, I support him for the CCA. But he in fact inexplicably OPPOSED Texas' eyewitness ID legislation - at first agreeing to a compromise then retracting that agreement, taking a hard line, and ultimately flat-out opposing the bill on the House side.

It's a bit of a stretch to claim Keith "worked for meaningful reform of eyewitness identification" when in fact he opposed the only meaningful eyewitness reforms proposed at the Lege last year.

I'm just sayin'

I think the CCA needs greater diversity - of opinion, not race, gender, etc. - so my disagreements with Keith over eyewitness ID won't keep me from voting for him in the fall. But that doesn't change the fact that Hampton and the Texas Criminal Defense Lawyers Association were the lone opponents of eyewitness ID reform at the Legislature, not great champions of the idea.

When is breaching an "oral tradition" different from violating an "unwritten rule"? When you're Judge Sharon Keller

Readers of this blog by now surely have heard about the fact finding report issued yesterday in Judge Sharon Keller's case before the Commission on Judicial Conduct. From the moment I posted about this on Grits, it was clear lots of people have strong opinions about the ruling. Here's mine.

Having now had time to read and digest Judge David Berchelmann's findings of fact (pdf), I think I've honed in on what bothers me most about this outcome. Berchelmann concludes that Judge Keller "did not violate any written or unwritten" rule of the court. But his own description of facts in the case defies that conclusion. He describes the detailed, unwritten procedures followed by the court in death penalty cases - rotating turns as the "duty judge" in charge of all after-hours communications in the case. Aren't these "unwritten rules," one might wonder? And didn't Keller violate them?

Instead of acknowledging that uncomfortable fact in his "fact finding," Judge Berchelmann employs a bizarre term of art, saying the court's internal procedures represented an "oral tradition," not unwritten rules. An "oral tradition" - as though the Court of Criminal Appeals were some Native American tribal council passing down the stories of their ancestors.

Given that as soon as this "oral tradition" was violated the Court codified it as a public, written rule, it's hard to see much distinction between an "oral tradition" and an "unwritten rule" in this context. Indeed, on page 7 of the opinion, Berchelmann himself uses the terms interchangeably, writing of this "oral tradition" that "the purpose of this rule was to ensure that one judge was the point person for anything related to the case."

How does an "unwritten rule" differ from an "oral tradition" if, even in the parlance of the fact finder, those things are one and the same? What does that distinction say about the veracity of Judge Berchelmann's conclusion that Keller "did not violate any written or unwritten rules"? In that respect, the conclusions reached in the document don't seem to jibe with the facts described.

Bottom line: Judge Berchelmann was asked by the Commission on Judicial Conduct to serve as a fact finder, but instead he acknowledged then ignored the facts, characterizing them in a disingenuous way to excuse Judge Keller's usurpation of the duty judge's responsibilities under this "oral tradition."

Mainly this document is not a statement of facts but an argument by Judge Berchelmann to the Commission about what the punishment should be. Judge Berchelmann's recommendation that Judge Keller deserves no sanction primarily hinges on the conclusion that she violated no unwritten rules. If she had, the ruling implies, the need for stronger sanctions than "public humiliation" might be merited. For my part, I think it's pretty clear she violated the court's unwritten rules, its oral traditions, its verbal prescriptions or its lingual decrees, whatever you want to call them.

The Commission on Judicial Conduct should ignore Judge Berchelmann's punishment recommendation and reprimand Judge Keller, but not recommend removing her, based on these findings of fact. Berchelmann is wrong: Keller did violate the court's unwritten rules. And Keller brought any "public humiliation" on herself. But her technical distinctions between the court and the clerk's office (at one point Berchelmann basically calls her a liar, saying no "reasonable person" would say she'd close the clerk's office again under the same circumstances) probably obfuscate the legal question enough to conclude removal isn't justified, even if "there is a valid reason why many in the legal community are not proud of Judge Keller's actions."

This outcome doesn't surprise me; it's what I predicted after the Commission's charges first came out. But I do think that Judge Berchelmann got it wrong, and I'm disappointed that the thing ended up looking so much like a whitewash.

The Stand Down Project has compiled MSM coverage. See related commentary from:

• Rick Casey
• Simple Justice
• Robert Guest
• Jeff Gamso
• Jamie Spencer
• Michael Hall
• Wall Street Journal Law Blog
  
• The Texas Tribune
• Off the Kuff
  

MORE: Register your opinion in the reader poll in the sidebar: Will Sharon Keller run for reelection when she's up again in 2012, and if so will she win?