Saturday, October 30, 2010

Pardoning the Duke of Duval

Pardon Power has an historical piece on President Harry Truman's pardon of George B. Parr and Parr's later association with alleged election fraud on behalf of Lyndon B. Johnson in the 1948 Texas Senate primary. Well worth a read for those unfamiliar with this particularly sordid piece of South Texas history.

'What did the TYC whistleblower claim?'

The Statesman's Eric Dexheimer gets to the heart of allegations against TYC by former administrative law judge Chris Koustoubardis in a blog post titled as above. I won't spoil the surprise, go read his account.

San Angelo checkpoint cites mostly economic crimes

DWI checkpoints are supposedly banned in Texas (or at least the legislation which would supposedly authorize them failed to pass in 2009) so I'm not sure how the Sheriff in San Angelo can justify checkpoints for insurance and drivers licenses - "Show me your papers, Comrade!" From the San Angelo Standard Times (Oct. 28):
More than one of every six vehicles stopped in a two-hour checkpoint in San Angelo on Wednesday morning received a citation, the San Angelo Police Department said.
The police, Tom Green County Sheriff’s deputies and San Angelo City Marshals conducted the checkpoint from 8:15 a.m. to 10:20 a.m. in the 300 block of East Avenue L, stopping 585 vehicles, said Lt, David Howard, a San Angelo police spokesman.

Citations included 50 tickets for no insurance, 28 for driver’s license violations, 24 for other violations such as expired or missing registration or inspection, and two warnings.

One driver was arrested on a misdemeanor marijuana possession charge, Howard said.
Consider: What does it say about the state of overcriminalization on the roadways that when you stop every car on the road, one in six are breaking the law? These are mostly economic crimes. It's a crime to fail to pay a private company for insurance. Many of those with driver's license violations likely lost their licenses thanks to onerous Driver Responsibility surcharges. And of course inspection and registration are both government-mandated fees (with inspection often including the cost of getting this or that defect on the car fixed before it will pass muster).

So you stop a bunch of people who already couldn't pay for insurance, surcharges, registration fees, vehicle repairs, etc., and lard on an added criminal penalty they likely also can't pay. That makes no sense from any perspective but revenue generation. It's no wonder they cited one in six drivers stopped, when you think about it. Employing these kind of tactics makes it less likely they can pay all the fees and penalties they already owe, manufacturing ever-more violators and building the pool for additional citations down the line like sort of a grotesque perpetual-motion machine.

Maybe the problem isn't all the lawbreakers but that there are too many damn laws and too much reliance on the criminal justice system to bleed drivers (read: taxpayers and voters) with citations and fines over economic crimes.

Choosing the wrong victim: 5 years for corrupt SA police union treasurer

Here's a case that's flown under the radar: A San Antonio police union official was convicted of embezzling $104,000 from union coffers and received a five year sentence, though the judge retained the option of switching to shock probation within the next six months. Reported Craig Kapitan at the Express-News:
[Clifford] Morgan, who served with the department for 11 years, came to court Friday with a $56,899 restitution check for the police union. Given the effort to pay the money back, defense attorney Steven Price said, he should be given a chance at probation.

Theft between $100,000 and $200,000 is a second-degree felony punishable by up to 20 years in prison. In exchange for his no contest plea in August, prosecutors agreed to ask the judge for no more than 10 years in prison.

Because of the payment, prosecutors opted to remain silent during the brief punishment hearing, letting the police report speak for itself, said first Assistant District Attorney Cliff Herberg. But five years in prison is appropriate given his position of trust, he said.
Via Injustice Everywhere.

Flurry of media surrounding Anthony Graves exoneration

Rounding up coverage of Anthony Graves' exoneration, check out:
And of course, for the definitive history of the case, comparable in scope and import to David Grann's New Yorker piece on Todd Willingham, see Pam Colloff's "Innocence Lost" from the October issue of Texas Monthly and a short documentary video the magazine produced to accompany the story.

One thing that occurred to me this morning reviewing the coverage: It took a federal appellate court to overturn this conviction and order a new trial (see their order here) based on the extreme prosecutorial misconduct that's being alleged. Texas state appellate courts had already rubber-stamped Graves' death papers and would have sent him to the execution chamber by now, if they had their way.

Friday, October 29, 2010

Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta

From the Houston Chronicle:
A day after prosecutors dismissed the capital murder charges that sent Anthony Graves to death row in 1994, they accused the district attorney who convicted him of prosecutorial misconduct.

“Charles Sebesta handled this case in a way that could best be described as a criminal justice system’s nightmare,” Kelly Siegler declared. “It’s a travesty, what happened in Anthony Graves’ trial.” Graves, now 45, was released from jail Wednesday after spending 18 years behind bars for a crime he did not commit, according to Bill Parham, the current DA for Washington and Burleson counties. Parham, Siegler and two investigators called a Thursday news conference at which they accused the former district attorney of hiding evidence and threatening witnesses.
Siegler said this example of prosecutorial misconduct was “The worst I’ve ever seen.” Sadly, there's no apparent remedy available here. Clearly the State Bar Association is completely worthless when it comes to holding prosecutors accountable. Again from the Chron:
In 2007, Houston attorney Robert Bennett filed a bar complaint saying Sebesta and two assistant district attorneys acted unethically in the prosecution.

The State Bar dismissed the complaint, and officials said Sebesta has no disciplinary record.
Thanks for nothing, State Bar. Way to uphold the integrity of the profession.

Mark Bennett says that "Sebesta will go to his grave carrying the burden of the private knowledge that he’s lying, cheating filth who destroyed an innocent man’s life." That's not nearly sufficient.

To me, this case and others like it require a legislative remedy. The doctrine of absolute prosecutorial immunity is a construct created out of whole cloth by the US Supreme Court, and that means this corrupt and corrupting concept could be vitiated by legislative action. Police officers, after all, only have "qualified immunity"; why should prosecutors get no accountability at all for decisions made when they have time to deliberate when police officers - who often must make decisions on the spur of the moment - receive less protection under existing court precedents? It doesn't make sense and this case shows it's a recipe for injustice.

I'd like to see the Texas Legislature pass legislation next spring - with a bill named after Anthony Graves - to make prosecutors subject to qualified immunity by statute. That would still limit their liability drastically - just as it's incredibly difficult to hold police officers accountable for on-the-job misconduct under "qualified immunity" standards - but at least in extreme cases like this one there'd be some recourse against prosecutors who think it's okay to cheat to win.

Thursday, October 28, 2010

Housing the homeless ... in jail

I thought this was an interesting money quote from a speaker at a Lubbock City Council meeting on the subject of criminalizing homeless people storing or using camping equipment on public property:
“It kind of contradicts statements by City Council members that they do not want to spend taxpayer money housing the homeless” if they end up sending homeless to jail, said Chad Wheeler, pastor of Carpenter’s Church.
No kidding. Creating criminal penalties results in paying for their housing, too, plus food bills, medical care, etc.. That's certainly an irony in the stance of those who would criminalize homelessness but reject spending money on supportive housing options.

Applying actual science to blood splatter evidence

A recurring theme on this blog has been the lack of actual science behind many so-called forensic "sciences," as highlighted last year in a major study by the National Academy of Sciences, and the need for primary research in many fields where flawed evidence is commonly relied upon in court. In that vein, here's an interesting article from Inside Science News Service about primary research into blood-splatter evidence which debunks past techniques while pointing to possible, actually science-based methodologies for using such evidence:
Sanjeev Chandra, an engineer at the University of Toronto who helps General Motors develop better ways to spray paint its cars. "A lot of the physics is exactly the same for blood."
In soon to be published research, Chandra and his team have revisited the techniques and software packages that forensic experts have developed over the years to reconstruct the origin of blood splatters. By testing this software scientifically on splatters of pig blood in the lab, they've shown that there is significant room for improvement in the models, which typically use straight lines to trace the path of blood droplets a surface back to their point of origin.

"They aren't very accurate," said Chandra. "They don't consider the effects of gravity on blood droplets. They ignore air drag, which can be very significant."

Calculating the speed at which drops of blood leave the body during an attack is an important measurement for blood pattern analysis. The physics behind the velocity and size of a blood drop gives investigators an idea of what kind of wound was inflicted.

A drop of blood falling from a cut finger, for instance, is a battle primarily between the force of surface tension, which keeps it stuck to the body, and gravity, which pulls it downwards. Solve the equations, and you'll find that a typical drop released this way has a volume of less than one percent of a teaspoon.

Blood released from a wound by a violent impact -- such as a bullet -- tends fly in even smaller drops. That's because the force of a bullet is much stronger than gravity and easily overcomes the surface tension, flinging tiny drops away at high speeds.

Forensic investigators look at the size of blood spots created on surfaces at the crime scenes to get an idea of the volume and velocity of blood drops produced by a wound. But this doesn't always provide a clear picture.

"Often, the same pattern can be produced in many ways," said Daniel Attinger, an expert in fluid dynamics at Columbia University in New York who is working with the Department of Justice to strengthen the scientific framework behind blood pattern analysis.

A large spot could be the result of a small drop moving very quickly that spreads out on impact, or a large drop that contains more liquid but hits the surface at a slower speed.

That's why Chandra and his group are taking a closer look at not only the size but the shape of blood spots. They're developing a new method for calculating the speed and volume of a drop of blood by measuring the tiny spines that extend from blood drops like the tentacles of an octopus.

In a paper published in 2005, they showed that counting these spines could help to differentiate different velocities. A forensic investigator asked to analyze a spatter of pig blood in the lab using this new method had "fairly reasonable success," said Chandra.

One limitation of this technique, though, is that a spot of blood must be well-preserved to maintain these spines. This depends on the surface: wood and drywall preserve these shapes, but glass and tile are too smooth.
Applying scientific rigor to forensics is a win-win for everybody. These critiques of traditional blood-splatter evidence - particularly the false assumption that blood travels in a straight line and the failure to account for the effects of surface tension - are among the reasons I recently included it in the "Top Ten Forensic Sciences That Aren't Really Science." Until this research is complete and new techniques (which are still being developed) have been tested and replicated by others, the questions arise: Will the old techniques continue to be used in court, and will past convictions where false forensic conclusions were presented to juries as fact be revisited to make sure innocent people weren't convicted based on junk science? My guess, regrettably, is the answer to those two questions will be "yes" and "no."

Longview SWAT team raids wrong home

Radley Balko called it "another isolated incident": In Longview, a SWAT team broke down the door of the wrong home last week in an apparent no-knock raid. The News Journal reported that "officers apparently were distracted by 'known suspects' in front of a home." The real targets were next door - alleged drug dealers who were arrested later the same evening without incident, so clearly in this case SWAT wasn't necessary to capture the actual suspects. In an editorial yesterday, the local paper declared that "local officials could do themselves — and taxpayers — a favor by inviting an outside, totally unbiased agency to come in and do their own investigation."

As Balko wrote in the executive summary to a white paper for the CATO Institute on the subject in 2006:
These increasingly frequent raids, 40,000 per year by one estimate, are needlessly subjecting nonviolent drug offenders, bystanders, and wrongly targeted civilians to the terror of having their homes invaded while they're sleeping, usually by teams of heavily armed paramilitary units dressed not as police officers but as soldiers. These raids bring unnecessary violence and provocation to nonviolent drug offenders, many of whom were guilty of only misdemeanors. The raids terrorize innocents when police mistakenly target the wrong residence. And they have resulted in dozens of needless deaths and injuries, not only of drug offenders, but also of police officers, children, bystanders, and innocent suspects.  
One of the key recommendations in that CATO white paper was to "Return SWAT Policing to Its Original Function—defusing those rare, emergency situations in which a suspect presents an immediate threat to someone’s life or safety. SWAT teams should not be executing search or arrest warrants, conducting routine police patrols, or engaging in similarly proactive police work. SWAT teams should never be used to serve search warrants on drug offenders with no history of violence." I couldn't agree more.

SWAT teams were originally inspired after the Charles Whitman UT-Tower shootings here in Austin, but increasingly they're used for execution of routine arrest warrants instead of intervening in already violent situations, initiating violence instead of quelling it. Here's an interview with Mr. Balko from earlier this year lamenting the unnecessary trend toward SWAT teams' overuse.

Wednesday, October 27, 2010

Anthony Graves: Innocent and free 16 years after unfounded death sentence

Anthony Graves was convicted of capital murder in 1994 and 12 years on death row and the last four in the Burleson County jail, but today walked out of the courthouse an innocent man. From the Houston Chronicle:
Washington-Burleson County District Attorney Bill Parham dismissed the case after he and his team investigated the case for five months.
"He’s an innocent man," Parham said today. "There is nothing that connects Anthony Graves to this crime." He said the dismissal was just.

"I did what I did because that’s the right thing to do, and I’m fine with it," he said.

An attorney for Graves, Jimmy Phillips, Jr. said his client was released about 5:30 p.m. "The first place he wanted to go is to go hug his mama," Phillips said. "He is a free man and he’s home."

Kelly Siegler, a prosecutor hired to re-try Graves, agreed with Parham.

"After months of investigation and talking to every witness who’s ever been involved in this case and people who’ve never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder," Siegler said.

"This is not a case where the evidence went south with time or witnesses passed away or we just couldn’t make the case anymore. He is an innocent man."
The only witness against Graves was the actual killer in the incident, a man who recanted his testimony to prosecutors the night before Graves' trial, but was threatened with prosecution of his wife if he did not go ahead and accuse Graves of being his accomplice. Students from the innocence clinic at the University of Houston Innocence Network at the University of St. Thomas first discovered the prosecutorial misconduct five years ago, leading the US 5th Circuit Court of Appeals to later throw out the conviction because the prosecution did not disclose this exculpatory evidence to the defense. As far as I'm concerned, the original prosecutor in the case, Charles Sebesta, should be immediately disbarred and lose any prosecutorial immunity for his willful failure to disclose the recantation. What a disgrace to his profession.

It's interesting to note the language used by the prosecutors in the story, declaring they could find "not one piece of credible evidence." That's particularly significant because Deputy Keith Pikett's infamous dogs reportedly picked out Graves in a "scent lineup," but clearly prosecutors, to their credit, don't consider that evidence "credible."

Congratulations to Graves and his attorneys and kudos especially to the students whose research led to this jaw-dropping turn of events, not to mention the latter-day prosecutors who finally admitted (better late than never) that Graves is actually innocent. For more background on the case, check out Jeff Blackburn's guest post on Grits published while I was on vacation and an excellent Texas Monthly feature by Pam Colloff.

See prior, related Grits posts:

Ignorance, paranoia over phony Halloween sex-offender 'threat' more frightening than ghosts and goblins

I wrote last week that I expected more media hype surrounding the phony-baloney non-threat of registered sex offenders assaulting trick-or-treaters on Halloween, and sure enough the stories are rolling in like the tide. Just looking at recent Texas examples, see here, here, here, here, here, here, here and here. Perhaps most startlingly, in El Paso a TV station reports that law enforcement is so enamored of the prohibition of Halloween decorations, they're considering similar rules for Christmas! (To stave off the rampant assaults of carolers, perhaps?)

In this sense, Stephen Colbert's "March to Keep Fear Alive" this weekend in D.C. is incredibly well timed.

OTOH, at least a few folks out there are beginning to counter these absurd memes. In the Wall Street Journal today, Lenore Skenazy, who blogs at Free-Range Kids, has an excellent column titled "'Stranger Danger' and the Decline of Halloween" (found via the blog Sex Offender Issues) in which she offers the insightful observation that "Halloween is the day when America market-tests parental paranoia. If a new fear flies on Halloween, it's probably going to catch on the rest of the year, too."

Another on-point remark: "Halloween taught marketers that parents are willing to be warned about anything, no matter how preposterous, and then they're willing to be sold whatever solutions the market can come up with." No kidding! Skenazy's column concludes with these excellent observations:
And now comes the latest Halloween terror: Across the country, cities and states are passing waves of laws preventing registered sex offenders from leaving their homes—or sometimes even turning on their lights—on Halloween.

The reason? Same old same old: safety. As a panel of "experts" on the "Today" show warned viewers recently: Don't let your children trick-or-treat without you "any earlier than [age] 13, because people put on masks, they put on disguises, and there are still people who do bad things."

Perhaps there are. But Elizabeth Letourneau, an associate professor at the Medical University of South Carolina, studied crime statistics from 30 states and found, "There is zero evidence to support the idea that Halloween is a dangerous date for children in terms of child molestation."

In fact, she says, "We almost called this paper, 'Halloween: The Safest Day of the Year,' because it was just so incredibly rare to see anything happen on that day."

Why is it so safe? Because despite our mounting fears and apoplectic media, it is still the day that many of us, of all ages, go outside. We knock on doors. We meet each other. And all that giving and taking and trick-or-treating is building the very thing that keeps us safe: community.

We can kill off Halloween, or we can accept that it isn't dangerous and give it back to the kids. Then maybe we can start giving them back the rest of their childhoods, too.
In the nation's entire history, there's only been one instance - in Wisconsin in 1973 - where a child was abducted and molested while trick or treating: The perpetrator (who murdered the youth)  had no prior criminal record so even if sex-offender registries had existed back then, he wouldn't have been on the list. Indeed, targeting registered sex offenders arguably ignores far greater risks: Grits mentioned on Monday "a 2008 study [which] found 'that over 95% of all sexual offense arrests were committed by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully reduce sexual offending.'" Another recent study found Halloween may be the "safest day of the year" as it pertains to sex offenses against children because, according to one of the researchers, "it was just so incredibly rare to see anything happen on that day."

Urban planning theorist Jane Jacobs, one of my personal intellectual heroes, persuasively argued that encouraging greater density and pedestrian traffic in cities does more to reduce crime than all the cops you could throw at the problem because, as her obituary in the New York Times put it, "Whether neighbors or strangers, people are safer because they are almost never alone."  That's exactly why Halloween is the "safest day of the year" regarding sex crimes against children, and all the hype to the contrary harms children more than it helps them.

Tuesday, October 26, 2010

Did court illegally order state to pay Sharon Keller's legal bills?

Examiners for the State Commission on Judicial Conduct have filed a motion for rehearing with the three-judge panel that dismissed charges against the Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals, arguing that the judges should have sent the case back down to the commission for resentencing, reports Chuck Lindell at the Austin Statesman. I agree, but I'd be shocked if the court revisits the question.

Lindell's story included another tidbit, though, that I hadn't caught from the court's earlier decision: "The motion also asked the court to rescind its decision to let Keller recoup her legal costs from the state, noting that Texas law explicitly bans the practice when judges are investigated for potential wrongdoing." I didn't realize they'd said the state should pay her legal bills and indeed was under the impression they could not do so. Indeed, according to the motion:
Section 33.031 of the Texas Government Code ... expressly prohibits the award of costs or attorneys’ fees in this proceeding. See TEX. GOV’T CODE Section 33.031, “No Award of Costs” (“Court costs or attorney’s fees may not be awarded in a proceeding under this chapter.”)
So to recap. First the fact finding judge made sanction recommendations beyond his purview, then the SCJC gave Keller what she called "lawless" leniency by not punishing her more harshly, then the three-judge appellate panel apparently issued its own "lawless" ruling telling the state to pay for Keller's high-priced lawyer.

This whole affair has frequently been called a "circus" and increasingly it's clear that's an apt description: Every step of the process has been governed by clowns.

When lawyers strike (or not)

I've been debating whether to devote space on Grits to a suggestion from the new blog "Lawyers on Strike" that Texas lawyers "strike" next month to protest Judge Sharon Keller, but I hesitated because Mark Bennett and Scott Greenfield have cataloged most of the critiques I have of the idea from a practical perspective. It seems like the tactic, even if successful, would throw the lawyers' clients under the bus. For my part, I'd lose respect for any attorney who followed through on the idea without getting their cases reset, which of course would require showing up in court and make the idea of a strike moot.

However, I'll add a few observations from the perspective of a political tactician that make me even more skeptical about the idea beyond issues of legal ethics: IMO the notion is simply bad political strategy and misunderstands the role of blogs and new media in modern politics, for several reasons.

Direct action like strikes are risky endeavors and the stakes must be high to justify it. When unions strike it's to force concessions at the negotiating table in their contracts. This suggestion, however, merely serves a symbolic purpose; even if wildly successful it would not provide leverage for political actors to make substantive change in its wake. Such symbolism may massage the egos of those promoting it but it doesn't actually help anybody in the real world as a practical matter. In the writer's initial post on the subject he asks: "Will it matter?  Will anyone even pay attention, to say nothing of actually engaging in a strike?  If anyone did, would it ever be an effective remedy for what ails the system?  That’s the experiment." IMO those are questions  that responsible leaders must be able to answer before calling for direct action. You don't "experiment" with people's livelihood or the fate of defendants just out of curiosity with no identifiable prospects for success.

Direct action gets romanticized by folks who've read tales of success by Gandhi, MLK, and sit-ins at southern lunch counters in the '60s. But in more recent times, those tactics have become dated and those in power have learned how to counter them or just sit them out. The best example is probably the futile sign-holders at anti-death penalty protests in Huntsville prior to every execution. Only the most jejune gudgeon would fantasize that approach has a remote chance of ending the death penalty in Texas. I don't want to be mean about it, but even those participating in such efforts don't believe their actions will change anything; they just can't think off anything else to do.

In my 20+ years in Texas politics, I've seen direct action succeed exactly once out of dozens of examples (excluding labor disputes over contracts), and that was because it was part of a broader strategy, with environmentalists chaining themselves to construction equipment long enough for attorneys to go to court to stop illegal destruction of endangered species habitat by a developer west of Austin. But direct action itself didn't change anything, it just bought time to get the issue into a courtroom. If the tactic hadn't been part of a broader strategy it would have been pointless. That's my biggest problem with the suggestion that lawyers strike, however corrupt or dysfunctional one may consider the system to be: I don't see the endgame.

Further, blogs are not an effective vehicle to promote this tactic, even if you think a symbolic statement serves some purpose (which in general, I do not). Blogs have extremely limited reach, at best. Grits has been operating for more than six years and gets upwards of 50,000 visitors per month. But when I was at the Innocence Project of Texas' annual meeting recently, Jeff Blackburn asked the audience - mostly criminal defense lawyers and law students - how many of them read Grits for Breakfast: perhaps a third of the group raised their hands. I'll guarantee the blog Lawyers on Strike enjoys a tiny fraction of Grits' readership, so how can Atticus hope to inspire collective action if most people being asked to act will never hear the request? Blogs are frequented by people who are actively seeking out information, which is a small subset of folks: Their audience is made up of opinion leaders, not the "masses."

Strikes require disciplined organization and blogging is an endeavor that at best generates only weak connections among people. (See this recent Malcolm Gladwell article from the New Yorker fleshing out that argument.) Political organizing for direct action requires strong leadership and tremendous group cohesion, whereas the blogosphere is more analogous to a a bunch of leaderless, milling cats who can barely agree on the time of day. That's even more the case when, as Greenfield pointed out, the blogger advocating direct action is anonymous - in this case adopting the hackneyed nom de plume "Atticus" from To Kill a Mockingbird. One cannot build strong connections with your constituency if they don't even know who you are. And since, as mentioned, strikes are risky endeavors, nobody is going to act on the suggestion of somebody who won't even risk revealing their name. You can bet the courts will know the names of lawyers who strike, and as Bennett points out they'll likely face sanctions and maybe even jail time for contempt if they follow Atticus' advice.

Finally, the suggestion is naive insofar as it dramatically underestimates what's required to pull off an action on the scale necessary to have any impact. Atticus has recommended November 17 as the target day for a strike. But even if you believe the tactic has merit, that's an absurd goal for a statewide action. If one were serious about promoting that kind of large-scale event, it would take a year or more to do all the legwork necessary to make it happen. One would have to identify all members of the target group to be organized, expend resources (mail, phones, public meetings, advertising, etc.) to educate them on the hows and whys of the effort, create mechanisms for individuals to have input and buy-in, then mobilize them using an array of tactics, just like electoral campaigns do with GOTV efforts on election day. You're not going to get there just by setting up a blog on Wordpress and announcing anonymously "Everybody do what I say."

It's not that I don't believe blogging has a role in political activism. Recently Grits launched and ultimately succeeded in a year-plus-long effort to create Indigence and Amnesty programs for the million-plus drivers who've lost their licenses under Texas' Driver Responsibility Program. However. it wasn't editorializing on the blog that achieved that goal: I had to physically go speak to the Public Safety Commission (and not anonymously, either), build alliances with sympathetic organizations, and participate actively in deliberative processes at DPS to win even a partial victory. I'd been criticizing the DRP for years on this blog and in other forums before that, but in and of itself blogging wasn't going to change public policy. It's just one tool in the toolbox and you can't build a house if the only tool you've got is a hammer, however helpful it may be at the one task for which it's suited.

Blogs and social media have a role but they cannot and will never be the end-all-be-all of political activism. To have an impact, one must know what they're good for and what they're not: Organizing strikes definitely falls in the latter category.

UPDATE: See the "strike" organizer's response.

Monday, October 25, 2010

The evisceration of habeas corpus in American jurisprudence

Let me point readers to a fascinating academic review by American University Prof. Steven Vladek of a book I just ordered today online: Habeas Corpus: From England to Empire, by Paul Halliday. Here's a excerpt describing the impressive primary research behind Halliday's project:
There is relatively little in the Constitution’s drafting history or ratification debates to illuminate the meaning of “the Privilege of the writ of Habeas Corpus.” Still, most jurists and commentators now seem to agree on the constitutional floor. As Justice Stevens put it in 2001, “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” And yet, even that limited point of consensus only begs a separate question: what was the scope of the writ in English law in 1789, the practice from which we presume the Founders meant to borrow?

In Habeas Corpus: From England to Empire, Paul Halliday, a University of Virginia historian, provides an answer to that question (and many others) by comprehensively surveying the scope of English habeas practice during the sixteenth, seventeenth, and eighteenth centuries. Rather than peruse the published reports of English judicial decisions or the works of contemporaneous treatise writers, Halliday went to the archives. His study examines every writ of habeas corpus ad subjiciendum issued by King’s (or Queen’s) Bench in every fourth year between 1502 and 1798, and also covers writs issued during intervening non-survey years of particular importance. The result of Halliday’s quadrennial review was a set of some 2757 writs from the survey years, along with over 2000 from other periods. From these numbers, Halliday conservatively extrapolated that King’s Bench issued well over 11,000 such summonses during the course of his study, as compared to the far smaller number of habeas decisions from the same era available via the English Reports.
Vladek describes Halliday's thesis that:
Because of our modern preoccupation with the rights that individuals hold against their governments, scholars have long understood habeas corpus incorrectly as part of a framework of individual liberties, belying the extent to which the importance of the writ in pre-revolutionary England was much more about the courts than about the litigants.
Halliday argues provocatively that “what constituted liberties was the result rather than the starting point of judicial decision-making,” and that the British Parliament's role was mainly to limit habeas authority rather than establish it.

Ironically, despite Justice Stevens' claim that the status of the "Great Writ" in 1789 provides the floor for its authority, Vladek says "perhaps the most radical way in which American practice has diverged from England’s has been the evisceration ... of the common law as a basis for habeas jurisdiction." Justice John Marshall in 1807 was the first to withdraw habeas authority from its more robust and wide-ranging common law roots to insist that “the power to award the writ by any of the courts of the United States, must be given by written law.” Writes Vladek, "In other words, the Article III federal courts—including the Supreme Court—were powerless to issue common-law writs of habeas corpus, and could only act pursuant to express statutory jurisdiction." The reviewer concludes that "Whether he misunderstood English history or misrepresented it, Marshall thereby perpetuated critically incorrect assumptions about the scope of common-law habeas corpus at the Founding."

I'm looking forward to reading Halliday's book myself and may have more to say on the subject after I've done so, but in the meantime Vladek's review offers some thought provoking fodder for anyone interested in the topic.

RELATED: On the usefulness and limits of federal habeas petitions

'The Correctionists'

Governing magazine named Texas state Sen. John Whitmire and Rep. Jerry Madden 2010 Public Officials of the Year to honor their work to create new diversion programs that staved off new prison construction. See interviews with both men here and an accompanying editorial titled "The Cost of Blind Justice." Here's a taste from the opening of the magazine's profile:
It was a large funding request but not an unusual one, at least not for Texas. Over the course of the previous decade, Texas had more than doubled the number of people behind bars, increasing its inmate population from roughly 64,000 in 1993 to 154,000 in 2007. Now the Texas Department of Criminal Justice wanted the state Legislature to provide $523 million in additional funding for three new prisons, which would allow the prison population to grow to more than 168,000 by 2012.

The department had good reasons to expect a positive response. The chairman of the Senate Criminal Justice Committee, John Whitmire, was a conservative Democrat from Houston and the author of Texas' famously tough penal code. His counterpart in the House was a conservative Republican from Plano, Jerry Madden. Gov. Rick Perry and Lt. Gov. David Dewhurst were on board.

But instead of OK'ing the request, Whitmire and Madden did something unexpected. They teamed up to convince the Legislature, governor and lieutenant governor to spend $241 million on treatment, mental health and rehabilitation instead. Three years later, the state that once put the "t" in tough is widely seen as a model of corrections reform.
Congratulations to both men on the well-deserved accolades.

Curfew enforcement: 'Breaking the cycle of crime' or just another money grab?

Corpus Christi will begin charging juveniles arrested for more serious crimes with curfew violations in municipal court, whereas previously when juveniles were charged with other offenses, police hadn't bothered to write the Class C citations. Reports the Caller Times:
[Corpus Christi Police Cmdr. Mark] Schauer said officers got away from issuing the citations for a few reasons, mainly because the criminal offense goes through juvenile district court while a curfew violation is a citation that goes through municipal court. Many officers don’t want to write up two violations, and figure it is easier to hit offenders with the more severe criminal act.

“They just don’t bother with it now, and the thought is there is no reason we can’t hold them more accountable than we are,” Schauer said. “There is a chance a juvenile will get probation or they’ll beat the charge, and then there’s no punishment. But we can fine them for the initial crime and they will have to pay in one way or another.”

Also, if an officer picks up a juvenile, they have to keep them until the child can be released to a guardian or the juvenile curfew center, which recently was moved to a more central location in the Leopard Street Wilson Building. Picking up a juvenile became such a time-consuming process that it was doing more harm than good by keeping officers from answering calls where they were needed, Schauer said.

Schauer plans to put out a memo this week about the new focus, but it will not require a policy change. If a juvenile is detained in the Juvenile Justice Center for a crime, they receive the citation with their property when released. Otherwise they are taken to the Wilson Building where they get their citation while waiting for a guardian — who will have to be present in municipal court when the fine, as much as $569, is paid.
Schauer said police also are within their rights to cite parents for allowing their children to stay out after curfew and for truancy, and they can be subject to as much as a $500 fine.
A local municipal judge makes the dubious claim that this will help "break the cycle of crime."
“By exercising this Class C misdemeanor, we can shut down crime at the most basic level,” [Judge Melissa] Madrigal said. “These are the offenses that they start out with, and then they start doing drugs, breaking into cars, breaking into houses. If we can get a hold on them here in municipal court, they won’t have to go to criminal court, and the city will be safer.”
That doesn't make a lot of sense, though, since the offenders given citations under the new policy have already committed more serious offenses. To me this just sounds like a straight up money grab.

New report offers solutions on local jail overcrowding

This notice from the Texas Criminal Justice Coaltion (TCJC) arrived in my Inbox this morning:
New TCJC Report Provides Solutions to Address Jail Overcrowding in Texas

TCJC proudly announces the release of Costly Confinement & Sensible Solutions: Jail Overcrowding in Texas.

This report offers more than 60 front-end and corrections-level solutions to help system stakeholders identify smart-on-crime strategies that will reduce jail populations among Texas' 235 jails.  Specifically, the report serves as a go-to guide for county officials, policy-makers, law enforcement executives, attorneys and judges, pre-trial services staff, probation and parole heads, treatment providers, corrections personnel, re-entry specialists, and other agencies and organizations interested in creating more efficient and cost-effective corrections and diversion models throughout Texas.

With approximately 70,000 individuals incarcerated in Texas county jails - almost 11,000 of which are misdemeanants - Texas has six of the 50 largest national jail populations.  At an average per-inmate cost of $45 per day, counties are spending drastic portions of their budgets on the confinement of oftentimes low-risk, nonviolent individuals.  Alarmingly, more than half of all inmates have not yet been convicted of a crime.  In the absence of jail population management strategies, further jail construction will become a reality, and it will necessitate significant, additional resources at both the county and state levels.

Especially in light of an ongoing statewide budget shortfall, it is crucial that state and local leadership implement public safety-driven, cost-effective policies that tackle the root causes of crime and deliver taxpayers a return on their investment.

Please click here to download this report, and please forward it to your colleagues or others who may benefit!

Click here to download TCJC's press release announcing our new report.
An introductory letter from Adan Munoz of the Texas Commission on Jail Standards which declares the report is:

certainly one of the most useful tools for criminal justice planners and should be required reading for each stakeholder within the criminal justice community.

As counties face budget restrictions that will require them to make tough decisions, the information and recommendations contained within this report will provide officials with data and options to make informed decisions while still ensuring public safety.
Brandi Grissom of the Texas Tribune was Johnny-on-the-spot with initial coverage of this detailed, 116 page report.

I read and provided comments over the summer on an earlier draft of this document (and appreciate TCJC's thanks expressed in the acknowledgments), and will likely have more to say about the report after I've had a chance to read the final version. In the meantime, local officials owe a debt of gratitude to our friends at TCJC for highlighting solutions besides new jail construction to this intractable, budget-busting problem for county government.

Opportunity costs and the sex-offender registry

In Dallas, manpower shortages caused police to routinely turn away people trying to update their sex-offender registration status, reports Diane Jennings at the Dallas News ("Dallas police 'erred badly' in turning away sex offenders who sought to register," Oct. 24):
Sex offenders who must update their registration with the Dallas police have been routinely turned away after waiting outside the department door for hours. 
"I've got to abide by the law or they put me back in prison," said one offender who asked not to be identified.
Department spokesman C.L. Williams said the department "erred badly" by limiting the number of registrants to about three dozen a day in recent weeks, a short-term response to a manpower shortage during the State Fair of Texas. On one recent day, a small waiting room was packed and lines snaked down to the sidewalk outside the Jack Evans Police Headquarters. Similar scenes had been reported in recent weeks.
After the problem was called to its attention, the department stopped turning offenders away before they are registered.

Dallas residents shouldn't be "alarmed that there are large numbers of offenders in the general public who are out there unregistered because of this error," Williams said.
Despite those assurances, Dallas residents and indeed, all of us should  be alarmed that the sex offender registry has become so bloated that it stretches policing resources to the limit. In this rubber-meets-the-road example, it's monitoring the registry that got short shrift. Usually, though, it's other mundane but practically more important policing tasks which are ignored to waste time tracking people who for the most part aren't really a threat.

By trying to monitor everybody convicted of sex-related crimes - even those convicted only of minor, non-violent offenses and Romeo and Juliet romances - the system too often ends up montoring nobody. There's an "opportunity cost," to use economists' jargon, to the registry growing as big as it's become in recent years. During a budget crunch like cities are facing now, the problem may finally come to a head as departments devote scarce resources to perform such mundane, bureaucratic tasks with little public safety benefit.

This story reminds me of another one last month by Jordan Smith in the Austin Chronicle about the budget-busting expense of monitoring an ever-growing list of registered sex offenders, most of whom pose no ongoing risk. Smith wrote that:
a growing body of research on the effect of broad sex offender laws reflects that requiring thousands of individuals to register for increasingly long periods of time actually undermines public safety. "That's what the current science is telling us," says Liles Arnold, a sex offender treatment provider and chair of the state's Council on Sex Offender Treatment. Moreover, research also reflects that the restrictions placed on individuals by the municipalities in which they live – such as barring individuals from living near schools, parks, or in a home with young children, even if they're the offender's own children or siblings – create extensive collateral damage. "There are a growing number of registrants, not just in Texas but across the country," says Arnold. But there's no "delineation of who is dangerous or not."
Even police whose job it is to monitor these offenders said they were wasting resources tracking so many people who posed little threat, the Chronicle reported:
"The public in general only hears, 'He's a registered sex offender.' Through ignorance, they believe that is synonymous with 'sexual predator,'" says Austin Police Department Lt. Greg Moss. "Registered sex offenders are not only sexual predators."
An expert on the enforcement of the state's sex offender laws, Moss is the former supervisor over the APD's Sex Offender Apprehension and Registration Unit, a three-detective squad tasked with keeping track of more than 1,500 sexual offenders registered as living in the city of Austin – including Henry. Of those on Austin's list, Moss estimates that just 10% are "your sexually violent predators," those folks who "we should be proactively monitoring, to ensure they're abiding by probation and parole." But APD is responsible for monitoring everyone on the list – a task that is expensive and time-consuming and has very little, if any, positive impact on public safety.
As cities across the state face tighter budgets, coupled with ever-increasing demands for using criminal enforcement to solve a variety of social problems, Texas' over-large sex offender registry inevitably will strain law-enforcement resources in other cities besides Austin and Dallas, diverting focus from tasks that actually make the public more safe.

That's one of the reasons I find the attention paid to registered sex offenders on Halloween so ill-conceived. Between drunkenness and youthful vandalism there are actually significant public safety problems to deal with on Halloween, but law enforcement all over the state are focused on making sure registrants don't give out candy or put up decorations, despite the fact that the vast majority have no history of kidnapping children or committing violent sex crimes. Ironically, a 2008 study found "that over 95% of all sexual offense arrests were committed by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully reduce sexual offending."

Tight budgets in the criminal justice arena will inevitably force re-evaluation of priorities as resources for such tasks level off or decline even as the number of registrants (and other demands for service) continue to grow. Scaling back the sex-offender registry dramatically would actually improve public safety. The biggest barrier to doing so, however is self-serving hype by the media and demagoguery by politicians, who have discovered a useful fiction with which to manipulate the public in pursuit of advertising and votes, respectively. I consider the whole exercise as pointless as it is cynical.

Saturday, October 23, 2010

Reducing 'chemical restraint' of TYC youth

Reacting to an excellent recent investigative article published in Youth Today, the Fort Worth Star-Telegram has a story on TYC's recent decision to reduce use of psychotropic drugs among the youth in their care. The story opens:
Anti-psychotic drugs meant to treat mental illness were being used instead as chemical restraints on youths incarcerated in Texas Youth Commission facilities, Commissioner Scott Fisher said.

The medications, which have a sedating effect, are intended to treat schizophrenia and bipolar disorder but were used on youths who did not have those diagnoses.

Fisher, a Bedford pastor, said the commission has worked over the past year to implement a system that focuses on matching drugs to need. Statistics show that since last year the commission has throttled back spending on the drugs.

"I will tell you it wasn't just the reduction in cost that was at issue; it was the inappropriate levels of anti-psychotic medications kids were being subjected to," he said. "And in many cases it was a situation of using a chemical restraint."

Fisher spoke to the Star-Telegram about a recent investigation by Youth Today that uncovered extensive use of anti-psychotics with incarcerated juvenile offenders nationwide. Texas' spending on the drugs was among the highest. Critics say the drugs have replaced leather straps as a way to keep youths under control. Supporters say the drugs reduce aggression and soothe, making youth "more malleable" to treatment, according to Youth Today.
The biggest concern is the off-label use of anti-psychotic drugs on youth who haven't been diagnosed with an illness that corresponds to their recommended use. Just 29% of TYC youth receiving those drugs had diagnoses justifying them, according to Youth Today. Good for Cherie Townsend for beginning to confront this practice before the Youth Today article was published. One hopes the article spurs the Commission to grab this bull by the horns and wrestle it to the ground. The idea of using such drugs as "chemical restraints" is a morally repugnant grotesquery.

TDCJ offers bogus argument to conceal info on lethal injection drug

The Texas Department of Criminal Justice is making an incredibly disingenuous, bogus argument to try to conceal whether they have sufficient quantities of a drug used in lethal injections to continue Texas' historic pace on executions, reports the Dallas News Crime Blog:
Patricia Fleming, assistant general counsel for the Texas Department of Criminal Justice, said in a letter to Attorney General Greg Abbott that prison employees are under "a substantial threat of physical harm." She refers to the "inherently volatile" nature of executions as a reason to withhold information about the amount of drugs available in Texas for lethal injections.

The use of various drugs for executions has been an issue for death penalty opponents for years. In recent months some states have postponed executions because of a shortage. TDCJ spokesmen have answered queries about Texas' supply of the drugs in vague terms, but the department does not want to reveal specifics. Fleming's letter is part of a request for Abbott to rule on disclosure.

"The TDCJ has been lucky that those gathered or picketing outside the Huntsville Unit on a scheduled execution date have never fired weapons or even used knives, but both of these events are very real possibilities and amount to more than a generalized and speculative fear of harassment or retribution," the letter reads. "If the requestor published how much sodium thiopental we currently have and when it expires, this would operate to inflame an already volatile situation..."
Under Texas' open records precedents, TDCJ would only get to keep this information secret if there is a specific threat, not just a "generalized or speculative fear" that release of information might create security problems. But "generalized and speculative" is precisely how I'd characterize the idea that the handful of nonviolent protesters who show up at executions, who have never in all Texas' history engaged in violence, might do so because this information is released.

Indeed, I can't tell how this particular data would increase risk at all - why would violence be more likely if people knew how much of the drug TDCJ has in stock or when it expires? That information creates no specific vulnerability for employees and I fail to understand how a question about inventory would "inflame" people one way or another. Other states have released the same information without negative consequence. The argument makes no sense and the Attorney General's open records division should order the information released.

MORE: From the Austin Statesman.

Friday, October 22, 2010

For every false conviction, a guilty perpetrator goes free

A reminder out of Dallas that for every innocent person falsely convicted, a guilty person goes free to victimize others. From AP:
A convicted child molester linked to the crime that sent an innocent deaf man to prison in Texas was indicted Thursday in two similar cases involving sexual assaults on children.
A Dallas County grand jury indicted Robert Warterfield, 42, on two unsolved 1989 cases involving Dallas children who were 7 and 9 at the time they were attacked.  ...
The cases shouldn't have taken two decades to crack. Evidence of Warterfield's likely involvement had been sitting untouched and ignored for more than 16 years in Dallas County files but was recently discovered by Watkins' Conviction Integrity Unit, which examines possible innocence cases. ...
As it turned out, Warterfield had actually confessed to the rape that Stephen Brodie was ultimately convicted for as part of a plea bargain in a separate case, plus fingerprint evidence at the scene matched Warterfield but not Brodie.
In his 1994 plea bargain agreement, Warterfield essentially presented a road map of his crimes. Attached to his pleas bargain is a supplement that lists 13 sex assaults. The deal he reached was that if prosecutors charged him in any of those 13 cases, they could not use his guilty plea against him in pursuing convictions.

Two of the cases listed in the plea agreement are the ones for which Warterfield was indicted Thursday.

Another case listed in the plea bargain was the one that led to the 1993 wrongful conviction of Stephen Brodie, who was exonerated last month after spending 10 years behind bars. 
Indeed, police ignored physical evidence pointing to Warterfield instead of Brodie and relied on the deaf man's confession instead, which was secured after he was "questioned for hours by Richardson police without an interpreter, according to court documents."
In Brodie's case, a 5-year-old Richardson girl was assaulted by an unknown man who entered her room at night and led her outside to a nearby yard. Brodie was eventually convicted, despite a lack of physical evidence tying him to the crime. Brodie, who has been deaf since childhood and communicates by sign language, was questioned for hours by Richardson police without an interpreter, according to court documents. 
A year after Brodie's conviction, Richardson police learned that a fingerprint at the crime scene belonged to Warterfield, who around the same time pleaded guilty to sexually assaulting a 15-year-old girl in 1994. Warterfield also was suspected by Dallas police in the other unsolved sexual assaults and attempted assaults of young girls in the area.

But Richardson police never charged him, believing they had arrested the right man in Brodie, according to court documents.

Watkins' office reopened the Brodie case and supported his release. In doing so, the unit asked the county forensics lab to conduct DNA tests on the other "North Dallas Rapist" cases from two decades ago listed in the plea bargain documents.

The testing confirmed matches between Warterfield and the 1989 cases. Watkins declined to say whether DNA tests are pending on the other cases.
Bully for Craig Watkins' Conviction Integrity Unit for finally springing Mr. Brodie and bringing the right guy to justice. With 20/20 hindsight it's easy to see this false conviction could have been prevented or at least rectified much earlier. The question now is whether Texas will have the foresight to implement reforms to prevent more false convictions in the future?

Thursday, October 21, 2010

Inside Books benefit

For those of y'all in Austin, the group Inside Books will hold a benefit tomorrow, Friday Oct. 22, and has announced a "work party" in November. Here are the details, received this afternoon via email:
Friday October 22nd- 3121 E. 12th St Music at 7:30pm (sharp), Movie at 8:30pm We are very excited to be hosting a special screening of this wonderful film ( in our scenic backyard at Space12. The filmmakers will be on hand to present the movie, and there will be live music by Bad Blood and David Israel beforehand. It'll be like a drive-in movie, Texas county fair, and Inside Books all rolled into one! We'll also have "in the bag" vegetarian frito pie and great cheap used books for sale! $5-$10 dollar suggested donation. Bring a soft-cover dictionary and get $1 off!

Friday November 5th to Sunday November 7th Join us for our three day fall work party the first weekend of November. We'll have free food, music, and thousands of letters from Texas inmates ready to be answered! This is the work party where we get as much done as possible in time to mail thousands of packages for the Holidays.

Finally! Indigence, Amnesty rules approved for Driver Responsibility Program

On this blog I more frequently play the role of critic than cheerleader, I told the Public Safety Commission today during their public comment period, but this morning I showed up at the commission's monthly meeting with pom poms (figuratively) in hand to praise them for approving the new Indigence and Amnesty rules for the Driver Responsibility Program on their consent agenda. (See the rules here.)

As a reminder, these rules pertain to civil surcharges added by the Legislature in 2003 on top of criminal penalties for driving with no insurance, no license, or while intoxicated. While criminal fines for these offenses are paid in a single shot, the surcharges are owed over three consecutive years, which is why as a practical matter they mostly go unpaid. The result has been devastating, with more than a million drivers losing their licenses and courts reducing charges against drunk drivers to avoid the excessive fees. Since 2004, the total surcharges collected came to $767 million, while the total uncollected exceeds $1.1 billion.

I basically went to the meeting today to say "thank you." To give credit where it's due, I've rarely seen a state agency governing body as engaged on an issue as were the five commissioners at the Texas Department of Public Safety. Not only are they all well-informed on the subject, they even overruled staff to insist that an Amnesty program be created along with the Indigency rules, something I've seldom seen in all my years working on criminal justice topics (an earlier version published in the Texas Register failed to include an Amnesty provision). While the final result didn't include all the changes I might prefer, the commission was extraordinarily responsive to public input and the final rules are nearly as strong as I could have hoped for when this blog petitioned the agency for rulemaking last summer.

I should also take this opportunity to say "thank you" to Amanda Marzullo and the Texas Fair Defense Project who worked with me on this endeavor every step of the way, not to mention all the Grits readers who submitted comments or attended the public hearing on the rules.

As PSC Chairman Allan Polunsky said today, ultimately the Legislature needs to revisit (and IMO abolish) the surcharges, but these new rules are a significant step and may even help force the issue onto the the Legislature's agenda next spring.

I know a lot of readers have questions about when and how Amnesty will be granted or how Indigency applications will be processed. As I understand it, those decisions have not all been made yet, but I'll keep y'all informed as more information becomes available.

MORE: A press release from DPS includes this description of the programs approved:
Driver Responsibility Program changes approved

The Texas Public Safety Commission adopted proposed changes to the Driver Responsibility Program rules during their meeting today. The adopted rule will be published in the Texas Register as a final rule in November, and will consist of the following reduction programs:

The Amnesty program:

· Will apply to individuals who have been in default, and the Department will determine the time in default for each amnesty period
· Will reduce amount to 10 percent of total surcharges owed, not to exceed $250
· Will rescind suspension for those who receive amnesty while payments are being made

The Indigency program:

· Will apply to individuals at or below 125 percent of poverty level, using a sworn affidavit
· Will reduce amount to 10 percent of total surcharges owed, not to exceed $250
· Will rescind suspension for those who receive indigency while payments are being made
The press release adds that "The programs will be phased in over several months, with the Amnesty program being implemented during tax season. The Indigency program will be implemented immediately after the Amnesty period ends."

The press release also reminds me that I should have mentioned the new rules include provisions for an "incentive" program aimed at drivers currently paying their surcharges. However, because of the potential fiscal impact, the agency won't immediately be implementing that part of the rules. Instead, the "Incentive program will be evaluated for implementation" in the future.

In a way, it's unfair that noncompliant drivers get a break while those who paid are still on the hook, but that's a function of the politics of the current budget crunch: Half the money from surcharges goes to the state's general revenue fund, and budget folks from the Governor's office feared the incentive program might reduce overall income. By contrast, the state wasn't getting any money from indigent drivers or those who'd already defaulted and lost their drivers licenses, so for the Indigence and Amnesty program the budget impact wasn't a big concern.

OTOH, for the million-plus Texas drivers who've defaulted on their surcharges and lost their driver licenses, the new rules will be a godsend. I'd like to see the agency implement the Incentive program sooner than later, but I also know better than to look a gift horse in the mouth.

See related Grits posts:

On the usefulness and limits of federal habeas petitions

Before the raft of DNA exonerations in recent years, I didn't know much about habeas corpus petitions, certainly outside of capital punishment cases (where federal habeas reviews are mandatory). Since then, I've come to realize that habeas petitions, while relatively rare and even more rarely successful, remain one of the most important legal remedies available for flaws in or mistakes by the justice system.

Recently I ran across a couple of interesting items related to federal habeas corpus rights that may interest Grits readers. First, here are two academic articles I read this week debating the role of federal habeas petitions - this one (pdf) published last year arguing to abolish federal habeas review in most state cases, and this response (pdf) published more recently arguing that federal habeas review still has a role. (Via CrimProf blog.) I certainly agree with critics that habeas relief is regrettably unavailable for most defendants, that "We need a new federal approach that focuses on avoiding constitutional errors instead of trying to fix them after they have occurred," and also that ineffective assistance of counsel is probably "the most serious constitutional deficiency in state criminal justice today." What's more, I know from watching Texas cases that federal habeas petitions frequently fail to correct even egregious problems with state cases. So I can muster sympathy for the argument that the mechanism is so dysfunctional we might be better off without it.

That said, I don't find persuasive the argument that resources expended on processing habeas writs would significantly improve indigent representation if the money were shifted to that purpose. The cost of providing indigent defense on the front end is much greater and eliminating habeas review wouldn't make a dent in the problem. What's more, I don't consider improving indigent defense and providing post-conviction relief to be mutually exclusive. Most importantly, I agree with the respondents that framing the debate over habeas petitions in terms of civil-rights era reforms is short-sighted. After all, they argue:
even if racial discrimination were totally eliminated – something far in the future , in our estimation – we find it at least unwise to predicate judgments about the importance (or unimportance) of habeas on its prevalence. Habeas in Civil War times was not primarily beneficial for those facing racial discrimination; rather, it was those facing procedural issues raised by Reconstruction who most wanted habeas review.  ... Times change, as the does the nature of governmental infringements on individual rights . If we can expect new issues to generate new need for habeas review from time to time, limiting it now because one form of governmental abuse is on the wane seems foolish indeed; it is hard to imagine that non-capital habeas could later be resurrected.
I also tend to agree with the authors' argument that "The problem of too little success in non-capital habeas could be effectively addressed by modifying, rather than abandoning, the current scheme," removing time-consuming legal barriers that "prevent merits review of claims of constitutional error." So my own views correspond more directly with the second piece, but both articles are thought provoking and deserve to be read by anybody concerned with the subject of post-conviction writs.

Then there's this item from's Criminal Justice Blog describing habeas review of prisoners from Guantanamo Bay, pointing out that of the petitions processed so far by federal courts, 38 prisoners have been released and just 19 detentions were deemed justified. Of course, these are federal cases and thus aren't implicated by the debate over habeas in state cases, but it's interesting to see an instance where the habeas process is seemingly working as it should.

RELATED: Parsing post-conviction writs

Which blog scooped the Houston Chronicle on Harris County Sheriff firings?

I can understand Harris County Sheriff Adrian Garcia wanting to bring in his own command staff, but he's coming under fire after the man he put in charge of Internal Affairs was fired for sexual harassment, his personnel director was let go for incompetence, and the major who hired the personnel director (allegedly the major's close friend) resigned after he was found by Internal Affairs to have engaged in "behavior contrary to good order." All these folks were let go last spring, the Houston Chronicle reported today.

Interestingly, the personnel director, Mark Canfield, "was fired 10 days after deputies questioned his credentials in anonymous postings on an Internet site." Which site? Other than telling us it was a "deputy's blog," the Houston Chronicle didn't consider that detail fit to print. But I'd like to know where that sort of information is coming from, if only to monitor it for other news about the Sheriff's department the Chronicle didn't happen to tell us about.

If anybody knows whose blog they're talking about that broke this story months before the Houston Chronicle reported it, please let me know in the comments.

'Reining in Overcriminalization' (federal edition)

On average, the US Congress creates 56 new federal crimes per year, and many of them are written broadly with no "mens rea" requirement that the offender knowingly engaged in illegal activity, according to testimony last month before the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security on the subject of "Reining in Overcriminalization," video of which has been posted on the subcommittee's website.

The Heritage Foundation and the National Association of Criminal Defense Lawyers deserve credit for forcing this issue onto the Congressional radar screen with their report from last year, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.

The hearing's featured witness, of all people, was former racecar driver Bobby Unser, who was prosecuted for getting lost on a snowmobile in a blizzard and accidentally wandering into a restricted wilderness area near his ranch in New Mexico. Legislators also heard testimony from Houston attorney Jim Lavine and Brian Walsh from the Heritage Foundation, as well as former Assistant US Attorney Andrew Weissman and law professors Ellen Podgor and Stephen Smith. (Those interested should check out their written testimony in the links provided.)

Even Texas Congressmen Louie Gohmert and Ted Poe - neither of them touchy feely liberals by any measure - expressed concern over the proliferation of federal criminal laws and their often breathtaking scope. Lavine framed the issue with these remarkable data:
There are over 4,450 federal crimes scattered throughout the 50 titles of the United States Code. In addition, it is estimated that there are at least 10,000, and quite possibly as many as 300,000, federal regulations that can be enforced criminally. The truth is no one, including the government, has been able to provide an accurate count of how many criminal offenses exist in our federal code. This is not simply statistical curiosity, but a matter with serious consequences.
No one offered great suggestions on how to stop Congress from enacting new criminal laws year in and year out. The practice of identifying an activity this or that constituent group doesn't like, engaging in demagoguery to play to their worst instincts, then passing (usually pointless, redundant) criminal statutes to demonstrate how "tough" they are is so deeply ingrained in the psyche of American politicians that it's hard to guess what if anything might reverse that ignominious trend.

There were, however, interesting suggestions to confront the lack of a mens rea (i.e., criminal intent) component in so many laws passed in recent years. Prof. Podgor and others urged Congress to create a freestanding mens rea requirement. She pointed out that “The American Law Institute‟s Model Penal Code (MPC) has both a default mens rea component and an explicit statement that '[w]hen the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.'” Podgor went on to give advice in drafting statutes that Texas legislators would do well to follow:
It is important in drafting legislation to incorporate specific mens rea terminology that would mandate that an accused act purposefully or with knowledge that the conduct was illegal. With many federal statutes failing to provide a clear statement of mens rea, or having a weak mens rea statement that fails to account for the importance of knowing the illegality of the conduct, it is important to provide a default mens rea that would require proof that the accused knew his or her conduct was illegal.
Another interesting suggestion was to codify the "rule of lenity," As described by Supreme Court Justice Antonin Scalia, "This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead."

Florida's statutes specifically codify this rule, and multiple speakers testified Congress should do the same. I don't know the status of that rule in Texas - whether it's codified, embodied in court precedent, or what weight it tends to carry (I'm guessing very little) in practice in Texas courts, but that sounded like a good idea to me.

There's lots more good stuff in the testimony and video posted on the subcommittee's website for anyone interested.

Wednesday, October 20, 2010

Latest Harris County exoneration

I got to meet Michael Green last week at the annual meeting of the Innocence Project of Texas, so I'm especially pleased to learn he's been formally exonerated today by the Court of Criminal Appeals. Green spent 27 years in prison based on faulty eyewitness identification and told me he plans to show up at the Legislature next spring to argue for innocence-related reforms. Congratulations, Michael!

Time for annual Halloween sex offender hype

The Houston Press' Hairballs blog recently ran a post called "The Five Best Halloween Warnings Forwarded By Frantic Moms," and I'm somewhat surprised overblown fears about sex offenders giving out candy didn't make the list. (See prior, related Grits posts.) Thankfully, media hype over that non-threat seems to have died down somewhat this year: I've only seen two Texas-based news stories on the subject this fall, whereas just a couple of years ago they were ubiquitous during the month before the event. That said, I bet we see more between now and the big day.

I've pointed out previously that "there's only one case in the history of the planet where a child was abducted by a stranger while trick or treating (in Wisconsin in 1973). In that instance, the killer had no prior record and wouldn't have been on any sex offender registry even if it had existed." Kids are at greater risk of being hit by lightning on Halloween than they are from registered sex offenders. Indeed, a recent study found Halloween may be the "safest day of the year" as it pertains to sex offenses against children because, according to one of the researchers, "it was just so incredibly rare to see anything happen on that day." But then, reporting the truth wouldn't grab readers' attention as much as hyping a de minimis threat.

The real threats to children on Halloween: Drivers (drunk or not) hitting pedestrians, fire-related accidents, choking, and food allergies. There's by far a far greater risk that an ill-fitting mask will impede your kid's vision and cause them to step into traffic without looking than there is that a registered sex-offender will abduct them. As far as I'm concerned, law enforcement agencies and media outlets hyping non-threats while ignoring the real risks to kids do the public a significant disservice, even if the practice is common as dirt.

New TYC Ombudsman appointed

Perhaps the fourth time will be the charm. Via a letter from the executive director on TYC's website, we learn that a new Ombudsman has been appointed at the agency: Debbie Unruh, a jail administrator from Amarillo. Here's the text of the letter:
TYC Staff:

I am happy to inform you that Texas Governor Rick Perry has appointed Debbie Unruh of Amarillo as the new Independent Ombudsman for the Texas Youth Commission (TYC). This appointment is effective November 1st.

Ms. Unruh is captain and jail administrator for the Randall County Sherriff’s Office, a former instructor for Amarillo College, and a past director of the Amarillo Bail Bond Board. She is a member of the Texas Jail Association, Sherriff’s Association of Texas, Texas Crime Victims Institute Advisory Council, and Region XVI Adult Education Advisory Board. She is director of the Prepare Inc. Prisoner Re-Entry Project, and a volunteer for Amarillo Family Support Services, Sharing Hope Ministries and Amarillo March of Dimes. She is also a licensed Master Peace Officer, Texas Commission on Law Enforcement Officer Standards and Education instructor, internal affairs investigator, K-9 handler and private investigator.

Ms. Unruh received a bachelor’s degree in criminal justice from Wayland Baptist University, a bachelor’s degree in human behavior from Newport Beach University, and received peace officers and corrections officers certifications from Amarillo College.

I look forward to meeting and working with Ms. Unruh. I am certain she will quickly become a valuable partner in our efforts to treat, educate and rehabilitate the youth in our care. Please join me in welcoming her to the Texas Youth Commission.

Cheryln "Cherie" K. Townsend
Executive Director
Texas Youth Commission

Justifying BS traffic stops

There's a telling discussion string at the Texas District and County Attorneys Association user forum in which an assistant DA from Snyder, TX is seeking to justify a traffic stop where a driver was pulled over for not having mud flaps on their truck. Only problem: That's not actually an offense under the Transportation Code. Prosecutor Ben Smith asked his colleagues:
Is there any statutory authority to stop a dually pickup truck because it is missing a mudflap? I've scoured the transportation code and the closest authority I can find is the 547.004 general offense of operating a vehicle that is unsafe so as to endanger a person (AKA "defective equipment"). If this is all I have to rely upon I will need some evidence as to how this was putting persons in danger -- flying gravel perforating hapless hitchhikers perhaps.

Any ideas on where there might be some specific authority for this stop?
Another forum member informed Mr. Smith that the only requirement for mudflaps on such vehicles arises if it is towing something, which the driver in question was not.

You see discussion strings like this all the time on the TDCAA user forum, and they always stick in my craw. This ADA has the process back-assward, seeking to justify the stop after the fact instead of insisting that police don't pull people over without cause in the first place. He seems to think his job isn't to evaluate the cop's actions but to rationalize them.

A prosecutor's duty is to seek justice, not convictions. So here we have a prosecutor evaluating a case where there was no legal justification for a traffic stop that he or anybody else can identify. But instead of dismissing the charges, he's seeking to stretch unrelated statutes to justify overreach by police on the street. His suggestion for claiming the truck had "defective equipment" ignores the fact that there's no requirement in the law that the truck have the equipment in question, not to mention no evidence (beyond speculation about "flying gravel perforating hapless hitchhikers") that the vehicle was in fact "unsafe."

This is an example of seeking a conviction instead of justice, and only a naif would say it's an isolated instance.

UPDATE: An attorney from DPS this morning posted a link to DPS' inspection criteria, which require "safety guards or flaps" on such trucks. Mr. Smith is happy to find something to hang his hat on, declaring "The DPS inspection requirements seem to require them on all dually pickups so I'm gonna go with that." However there's no Transportation Code violation and no evidence the vehicle had an invalid inspection sticker. Clearly he'd "go with" any argument that would support the officer's bogus traffic stop. It still strikes me that this fellow is looking for an excuse to justify the stop as opposed to following the law as it's written.