Negotiations extended over TDCJ-UTMB prison health contract

The UT Board of Regents approved a 30-day extension of UTMB's contract with the Department of Criminal Justice to provide prison healthcare, but vowed to end the contract after December if the state can't come up with roughly $100 million more than was budgeted by the Lege this spring, reports Mike Ward at the Austin Statesman.

New York Times takes on Perry's mixed criminal justice record

The New York Times published a feature today by Deborah Sontag on Gov. Rick Perry's Texas criminal justice record, mostly focused on the death penalty but with a handful of comments, including from your correspondent, suggesting that the exclusive focus on capital punishment risks ignoring more moderate aspects of the Governor's record:

Scott Henson, author of “Grits for Breakfast,” a well-read blog on Texas justice, said that Mr. Perry, believing that “only egg-headed liberals” oppose the death penalty, liked to bait the news media so he would be given a chance to show some swagger.

“And y’all take the bait,” Mr. Henson said, “even though Rick Perry has nothing to do with executions. All his bluster about the death penalty is like the rooster who crows taking credit for the sun rising.”

Grits has argued an admittedly counterintuitive position articulated best in the story by my colleague Jeff Blackburn from the Innocence Project of Texas. He told Sontag that the politics of capital punishment make it a special case but that, by comparison, the rest of Perry's criminal justice record is admirably moderate:

Death sentences and average yearly executions have declined during [Perry's] tenure compared with that of his predecessor, George W. Bush. And persistent efforts to fix Texas’s troubled justice system have finally borne some fruit. Mr. Perry has not been a crusader, but he has signed reform-minded legislation and acknowledged some of the system’s mistakes, once referring to an exonerated prisoner’s murder conviction as a “great miscarriage of justice.”

“He has done more good than any other governor we’ve ever had,” said Jeff L. Blackburn, chief counsel of the Innocence Project of Texas. “He approaches criminal justice issues like a lay person rather than like a prosecutor or judge, which makes him open-minded and willing to embarrass the system. Unless, of course, it involves the death penalty.

“On the death penalty, Rick Perry has a profound mental block,” Mr. Blackburn continued. “The death penalty is part of our fine state’s religion; it’s somewhere up there with football. To oppose or weaken it would be like playing with dynamite, and Rick Perry, a quintessentially political person, is not going to blow himself up.”

Certainly on any issue remotely related to the death penalty Gov. Perry may be counted on to give voice to the most extremist, regressive and aggressive positions possible, blatantly pandering to what Blackburn called the "state's religion." The on-the-ground reality, though, looks much different. Sontag notes that, during Perry's tenure, the number of new death sentences in Texas steadily declined from 33 in his first year in office to seven last year, at least in part because of legislation Perry signed into law improving capital defense standards and creating a life without parole option for juries. Meanwhile, Texas passed a slew of criminal justice reform measures unrelated to the death penalty on Perry's watch. And after the Tulia scandal, on the advice of his "fixer," Jay Kimbrough, Perry boldly de-funded the state's system of regional narcotics task forces to pay for drug courts, diversion programs and border-security initiatives.

In the scheme of things, the death penalty is a minor piece of the justice system. It's worth remembering that, while seven new people were sent to death row last year, at any given moment around 750,000 adults in Texas are in prison, jail, on probation or on parole. Capital punishment may be important to many from an ideological perspective, but too often myopic focus on the death penalty by activists and the media drown out debates over issues surrounding the other 3/4 million people supervised by the Texas justice system.

Governor Perry is no reformer and his views on the justice system certainly don't reflect my own. But neither does the caricature of Rick Perry as an execution-crazed, tuff-on-crime Yosemite Sam figure stand up to close scrutiny. The Times article shows the national media is struggling to make sense of the disconnect.

See related recent Grits posts:

• Perry should expand clemency, trump Obama in Christmastime ritual

• Perry signed bill vetoed by Gov. Moonbeam banning shackling of inmates giving birth

• Texas death sentences plummeted during Bush, Perry tenures

• Rick Perry has little role in 'ultimate justice

• Should reformers praise or chastise Rick Perry's criminal justice record?

• Things to like about Rick Perry as a criminal justice reformer

Texas media waits till last minute for annual Halloween sex offender hype

Grits had been somewhat surprised this year that fewer Texas media outlets had succumbed to the annual Halloween hype over monitoring registered sex offenders out of fear they may give out candy. But on the weekend before Halloween, such stories appeared with a vengeance, especially on local TV news, see here, here, here, here, here, and here.

In politics, Halloween is when demagogues take their latest fear mongering tactics out for a spin to see if a gullible public will bite, and how hard. As the National Post put it, “A one-night festival of ghoulish subject matter, unhealthy food and talking to strangers, it is no surprise that Halloween is an annual magnet for moral criticism. Halloween is when parental paranoia is 'market-tested,' American columnist Lenore Skenazy wrote in a 2010 blog post. 'If a new fear flies on Halloween, it’s probably going to catch on the rest of the year, too.'”

Which is how we get this annual flurry of sex-offender-related stories on Halloween. Forget for a moment that there are only two instances that anyone has identified in the history of the nation of kids being sexually assaulted on Halloween, and in neither instance did the offender have a criminal record that would place them on the sex-offender registry. Reality isn't as important as the opportunity for hyping fear.

When Grits first noticed this annual phenomenon several years ago I blamed the media. But tracking it closely, one discovers that nearly all local stories on the subject stem from a press release from the local Sheriff, probation department, or some other official, local source, so really it's law enforcement hyping the issue that drives coverage. Since it's not actually news but really just self-interested spin, I doubt the media would bother to produce these stories on their own without explicit prodding from officialdom.

Bottom line: Your kids are in FAR greater risk from traffic accidents, drunk drivers, or even being struck by lightning (not to mention obesity and tooth decay) on Halloween than from sex offenders luring them with sweets. Indeed, in terms of sex crimes against children, Halloween may actually be the safest day of the year. If you're lecturing your kids on the risks from sex offenders before they go out instead of making sure they can safely see through their Halloween mask and reminding them to watch for traffic, you're probably diverting their attention - and yours - from the most serious public safety issues surrounding the holiday.

MORE: James Alan Fox makes the excellent point that there is indeed a crime spike on Halloween, but that it's not sex offenses against children but workaday street crime that routinely increases on that day and should be the main policing focus.

AND MORE: See related items from Diane Dimond , Karen Franklin, and at Slate.

See related Grits posts:

• Ignorance, paranoia over phony Halloween sex-offender threat more frightening than ghosts or goblins
• Annual Halloween scare tactic on sex offenders doesn't improve public safety
• More on Halloween sex offender hype
• Pushback beginning on Halloween sex offender hype
• Time for annual Halloween sex offender hype

Weekend Roundup: Brady violations to police 'code of silence'

Here are several items that haven't made it into stand-alone Grits posts but which merit readers' attention:

John Bradley defends, obfuscates hide-the-ball tactics by his office
Williamson County DA John Bradley has a rather disingenuous op-ed in the Round Rock Leader defending his office against charges that it withheld exculpatory evidence. But the Wilco Watchdog parses the claims in detail, concluding that:

Whoever is giving him advice about trying to make a silk purse out of a sow's ear is badly misguided. And, if he had made that 'going public' decision totally on his own, he's living in fantasyland if he believes reasonable people will buy it. No matter how hard he might try, Bradley can't change the record involving his history as in the Morton case, his admission in another 2010 case involving an assistant DA in his office, Tommy Coleman, his performance as chair of the Texas Forensics Science Commission, and the public disclosures now being made by criminal defense attorneys who have fought the uphill battle of defending their clients against the tactics employed by Bradley's 'policies.'

TDCJ can't parole illegal immigrants in part because of federal judge shortage
Though Texas passed a law this year to speed up parole of deportation-eligible prison inmates, the state has yet to begin doing so, reports the Houston Chronicle, because the feds don't have adequate staff to process the extra cases. Reportedly, "part of the problem lies in a shortage of immigration judges" which gets us back to the conundrum of opposing all of President Obama's judicial and (until recently) prosecutor appointments while complaining that immigration cases aren't processed more quickly.

By appointment only
The appointment procedures for individual Harris County district courts are all online. Coupla things stand out: Many judge use an "attorney of the day" or an "attorney of the week" of their own choosing instead of using the wheel or the new public defender office. Some policies specify those attorneys cannot give campaign contributions to the appointing judge; others do not.

Spate of alcohol incidents spawns more lenient policy for Cow Town cops
Reports the Star-Telegram, "Since 2008, at least 13 Fort Worth police officers have been disciplined -- ranging from a one-day suspension to termination -- on allegations involving driving while intoxicated or being intoxicated while on- or off-duty." The new chief has made departmental policies on alcohol use more lenient. Previously officers were fired for alcohol-related indiscretions, particularly DWI, whether they occurred on or off duty. "Punishments now range from a written reprimand or three-day suspension for off-duty public intoxication to a 15-day suspension or termination for DWI." Officers who are convicted of DWI may lose their license for 10 years under state law, but not if charges are reduced or if deferred adjudication is granted.

New Orleans PD cleaning house
Not a Texas tale but Grits readers will likely be interested in an extraordinary story out of New Orleans where the number of police officers dismissed for cause has skyrocketed, with one officer fired or resigning amidst an investigation on average every ten days.

Cops' views on 'Code of Silence'
Via the Golden State blog, Voice of Orange County, I ran across this dated but fascinating poll of police officers on the question of the "code of silence" which is police slang for police officers protecting one another from misconduct accusations, even when they're justified. In the decade-old analysis:

Twenty-five basic law enforcement academies from 16 states took part in the research by administering and collecting 1,016 confidential questionnaires completed by academy recruits. The findings included that:

· 79% said that a law enforcement Code of Silence exists and is fairly common throughout the nation.

· 52% said that the fact a Code of Silence exists doesn’t really bother them.

· 24% said the Code of Silence is more justified when excessive force involves a citizen who’s abusive.

· 46% said they would not tell on another officer for having sex on duty.

· 23% said they wouldn’t tell on another cop for regularly smoking marijuana off duty.

Prisons as a business model
These two recent MSM stories may interest Grits readers:

• PBS Frontline: Lost in Detention 
• CNBC: Billions Behind Bars: Inside America's Prison Industry

Dramatic increase in kids with incarcerated parents
This stunning and depressing chart from the Pew Charitable Trusts via the blog Prison Culture tracks the rise of the number of US children with incarcerated parents, who it should be mentioned are 6-8 times as likely as their peers to end up in prison themselves:

Droning on in Montgomery County: Unmanned aircraft could be mounted with weapons

Must we? Really?

From Montgomery County, the headline of the Click2Houston story was "New police drone near Houston could carry weapons." "To be in on the ground floor of this is pretty exciting for us here in Montgomery County," Sheriff Tommy Gage said, reassuringly, adding "We're not going to use it to be invading somebody's privacy. It'll be used for situations we have with criminals." Got that? Move along. Nothing to see here. No, don't look up ...

How much you wanna bet this new technology spawns a new felony of some sort next session for shooting a paintball or throwing a rock at a police drone flying over your backyard? Do you remember the brilliant shot from the intro to The Wire where the kid hurls a rock at the surveillance camera, cracking the lens? Run this drone flying low in urban areas and you're going to get a little of that. Also, the headlines won't be so cheerful the first time the remote pilot crashes the thing or flies into a building or through the electrical wires.

Of course, DPS is already operating drones in border counties (and elsewhere in the state), as is the federal government. Several Texas jurisdictions have bandied the idea about, including larger Harris County to the south, but Montgomery County is the first to decide that the technology is worth the bang for the buck ($300K plus fuel and ground staffing). The Sheriff has said he won't use the drone for traffic enforcement, but that doesn't mean that he won't change his mind about that, or that the next guy won't.

The legal theory allowing them to fly over your house with a camera zooming in to snap your picture is that police aren't invading your privacy if they see something while in a "public space" - in this case public airspace flying over your house with a zoom lens - from a spot off your property where they don't need your permission to be. That makes it formally constitutional, I suppose, since existing Supreme Court precedents have failed in any meaningful way to apply 18th century privacy principles to 21st century technology. But just because Justices Alito, Thomas, Roberts, Scalia and Kennedy (at least) would probably consider it constitutional doesn't make it any less creepy. The Legislature could and should regulate police drone use or even ban it except for certain, limited circumstances.

Whatever they do, I'd prefer the Lege decide on the front end, i.e., in 2013: Don't wait around for years like they did with red-light cameras, where dozens of jurisdictions adopted the technology before the Lege got around to creating rules to govern them. This technology isn't going away, so lawmakers should get out in front of the privacy issues surrounding its use by police agencies.

This appears to be a promo video for the model UAV purchased by the Montgomery County Sheriff:


Noisier than I'd expected, and rather unnerving for use in an urban setting, particularly if it were armed. I wonder what the rules would be regarding private use, e.g., by paparazzi or something?

Shift away from checking reduced hot-check fund revenues in Odessa

Here's an unexpected consequence of the shift away from checks to plastic in recent years - less money in county Hot Check Funds, which are slush funds controlled by County Attorneys generated by an escalating array of fees on hot checks. Reported KOSA out of Odessa:

The Ector County Attorney's office is passionate about going after hot check offenders, but over the past two and a half years that Hot Check fund has depleted from $305,667 at the beginning of 2009 to just $108,709 as of May 31, 2011.

County Attorney Cindy Weir-Nutter explains they're working hard to go after hot check offenders, but with a decrease in businesses accepting checks, there are fewer to recover.
.
"It's just common sense that checks are a thing of the past and so the fund is going to go down."

An election opponent agrees the shift away from checks is the main driver for the lower fund balance, though she also accuses the incumbent Ector County Attorney of unnecessary spending on office furniture. An even bigger factor, though, may be that lower-income families, who are most likely to bounce checks, have been closing their bank accounts in droves in part because of higher bank fees and minimum balances as well as, naturally, "overdraft" fees. So if fewer poor people have bank accounts and fewer businesses are accepting checks, it's a reasonable bet that County Attorneys' hot-check fund balances will continue to decline and I wouldn't be surprised to learn that the same thing happening in other counties as well.

Random Friday morning roundup

I've got a busy day but here's some interesting reading material until Grits has more time to post:

Anderson deposition ordered, more prosecutor misconduct allegations in Williamson County
Judge Ken Anderson's motions to the Court of Criminal Appeals were all quashed and he now faces deposition regarding allegations that Williamson County prosecutors withheld evidence in the Michael Morton case. Meanwhile, Wilco Watchdog and Your News Now-Austin have more on separate allegations that the Williamson DA's office withheld evidence in another, more recent case.

Does cell-phone data monitoring too often trump personal privacy?
At the Texas Lawyer, read Peter Crusco on Cell Phone Data and Expectations of Privacy.

Reentry reform
See a power point presentation from the Texas Criminal Justice Coalition's Ana Correa titled "Reentry Reform in Texas: 2005-2011."

Private prisons
Lots of new, interesting material up over at Texas Prison Bidness.

Training magistrates on bail hearings post-Rothgery
From the Texas Indigent Defense Commission, see a power point (ppt) from a judicial training on Article 15.17 magistrate proceedings (bail hearings). All I can say is the Supreme Court's Rothgery ruling doesn't seem to have completely trickled down to the practitioner level. It's mentioned in passing but honored mostly in the breach.

Prep reading to participate in TDCJ, parole board Sunset process
Activists who work on issues related to the Texas Department of Criminal Justice or the Board of Pardons and Paroles will want to at least skim though their"self evaluation reports" here and here (large pdfs), respectively. They provide tons of sometimes obscure background and detail on day-to-day functions and the Sunset review process provides a unique opportunity to influence how these usually-insular agencies operate. Around 90% of success in politics is just showing up. The Sunset process is an important chance for reformers to address issues where there's seldom an opportunity to do that.

Grand jury investigating BAT van coverup to question DA Pat Lykos

It seems that as a practical matter, examinations of flawed forensics in the justice system virtually never result from the mature, public exercise of judgment aimed at seeking scientific truth but inevitably are cinched up in some taut, emotional knot by whatever painful, uncomfortable or inconvenient memories or secrets may be exposed if the flaw were to come to light in a particular case. So when investigating flawed arson science, for example, the Forensic Science Commission gets sidetracked by death penalty politics. Similarly, flawed breathalyzer forensics at the Houston PD were only exposed when a crime lab supervisor quit rather than sign off on questionable results, then faced alleged retaliation from the District Attorney and the Harris County Commissioners Court, which eliminated her new job soon after she took it. So the question of breathalyzer mechanics gets wrapped up in a nasty employment dispute. For whatever reason, when flawed forensics are exposed the case is seldom as simple as the science.

In the Harris County B.A.T. van case, the Houston Chronicle today reports that DA Pat Lykos herself has been called to testify before a grand jury that's apparently investigating Brady violations (withholding exculpatory evidence) in addition to retaliatory termination regarding whistleblower Amanda Culbertson who exposed flawed forensics on mobile DWI testing units. Wrote Brian Rogers:

The testimony could affect dozens of past and future DWI cases that relied on evidence handled by the testing equipment in the vans.

Even more serious is the possibility that Lykos and other prosecutors had doubts about the tests' accuracy while prosecuting past DWI cases but did not alert defense attorneys.

Culbertson resigned rather than sign off on flawed breath-test analyses and went public with her allegations, taking a job at Lone Star College which held a decades-old training contract for breath alcohol testing with Harris County. If not in response to Culbertson's disclosures then at least soon after them, DA Lykos successfully pressed the Commissioners Court to transfer the contract to the Texas Department of Public Safety. Lisa Falkenberg writes that, "Retaliation, and perhaps even intimidation, seem far more likely motives for the DA's office to want to end Lone Star's contract," but added that "we'd never know for sure without a thorough investigation."

It seems, at least, the grand jury is performing one. What a dramatic turn of events! I'd love to learn the backstory of how it was orchestrated. We could use grand jurors like that in quite a few other Texas counties. The Houston Chronicle has been covering this well, so far, but if you're interested in the straight-up schadenfreude angle on this juicy story, Murray Newman's your man.

See related Grits posts:

• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• 'We've had enough of courthouse cronyism'
• Holy junk science BAT van!  Houston portable breathalyzers' accuracy questioned
• Paycheck vs. Integrity: Houston PD lab supervisor resigns over faulty breathalyzers, feared retaliation

Forensic technique that was 'judicially accepted for decades' called 'highly unreliable'

Having recently examined advice being given to judges on how to interpret the science or lack thereof behind ballistics evidence, I thought I'd continue in that vein with a discussion of "microscopic hair analysis" from the same source (see the online version here, beginning on p. 112). Both analyses are drawn from the third edition of the "Reference Manual on Scientific Evidence," produced by the Federal Judicial Center and the National Research Council of the National Academies of Science. While microscopic hair evidence has been "judicially accepted for decades," says the manual, you can add it to the list as "another forensic identification discipline that is being reappraised today."

The 2009 NRC-NAS report contained an assessment of hair analysis, says the manual, "observing that there are neither 'scientifically accepted [population] frequency' statistics for various hair characteristics nor 'uniform standards on the number of features which must agree before an examiner may declare a 'match'" The report concluded that "testimony linking microscopic hair analysis with particular defendants is highly unreliable," recommending DNA testing of the evidence where practical.

Hair analysis is better at excluding suspects than individuating them: E.g., they could tell if someone had blonde with straight hair vs. curly hair from an African American, whether hair had been dyed, etc.. But even the best estimates of the technique's accuracy say the possibility of a false match is 1 in 4,500 for scalp hair and 1 in 800 for pubic hair. Other proficiency studies, have found much higher "false positive" rates - sometimes above 12%. Even more damning, an examination of the first 137 DNA exonerations found that 38% included invalid hair comparison testimony, with most of the cases involving "invalid individualizing claims."

In the courtroom, prior to the US Supreme Court's Daubert opinion in 1993, "an overwhelming majority of courts accepted expert testimony that hair samples are microscopically indistinguishable." However, 1990 decision in North Carolina held it an error to admit testimony that"it would be improbable that these hairs would have originated from another individual." The court held that such testimony amounted "effectively to positive identification of the defendant."

The first, significant post-Daubert challenge to such evidence came in Williamson v. Reynolds out of Oklahoma in 1995, where a district court was "unsuccessful in its attempt to locate any indication that expert hair comparison testimony meets any of the requirements of Daubert." Before retrial, that particular defendant was exonerated by exculpatory DNA evidence.

The section of the manual on microscopic hair analysis concludes:

Post-Daubert, many cases have continued to admit testimony about microscopic hair analysis. In 1999, one state court judicially noticed the reliability of hair evidence, implicitly finding this evidence to be not only admissible but also based on a technique of indisputable validity. In contrast, a Missouri court reasoned that, "without the benefit of population frequency data, an expert overreached in opining to "a reasonable degree of certainty that the unidentified hairs were in fact from" the defendant. The NRC report commented that there appears to be growing judicial support for the view that "testimony linking microscopic hair analysis with particular defendants is highly unreliable.

RELATED: Go here to read the manual online or purchase a hardcopy. See also: Judges cautioned against reliance on overstated ballistics testimony.

Indigent defense symposium to be livestreamed

Today I'll be at an Indigent Defense Symposium at the capitol. Here's a flier (pdf) for the event, a detailed agenda, beginning at 8:30 a.m., and a link to live-stream of Symposium (scroll down to Extension Auditorium (E1.004))

Why judges rubber stamp search warrants based on anonymous CIs

If you ever wonder why judges sign off on questionable search warrants in drug cases based on information from unnamed criminals working as informants on behalf of police, the short answer is, "they have to." As evidence, look no further than a recent example in Houston where Judge Kevin Fine's denial of a search warrant was overturned by the 14th Court of Appeals. What drew this benchslapping? Applying too-strict scrutiny to hearsay information from an anonymous informant. Even where judges think such testimony merits more corroboration, in Texas judges are apparently bound to accept it uncritically when considering pre-indictment search warrants. The Houston Press has the story.

Criminal-justice items among TX House interim charges

Looking through the interim charges (pdf) for Texas House Committees (i.e., the questions the Speaker of the House has formally asked committee chairman to examine in between the state's biennial sessions), here are the ones I identified as potentially interesting from a criminal justice perspective:

Appropriations
 For reasons made clear in this recent Grits post, this subject may delve more than expected into criminal justice topics: "Study existing financing mechanisms and delivery methods for long-term services and supports in the Texas Medicaid program. Consider best practices, expansion of consumer-directed models, and successful programs in other states. Make recommendations to simplify and streamline existing programs and to provide services in a more cost-effective manner to a greater number of eligible individuals while ensuring an appropriate level of services for those with significant needs."

Appropriations will also cross into the criminal justice arena when they "Assess the current infrastructure and funding mechanisms for mental health services in both rural and urban areas throughout the state. Study innovative local programs that could be expanded, as well as successful delivery and financial models in other states. Make recommendations to expand access and improve services through increased efficiency, competition, and transparency."

And they'll formally revisit prison health financing in the wake of devolving negotiations between TDCJ and UTMB: "Monitor the administration of the Correctional Managed Health Care system. Examine the implementation of reforms passed during the 82nd Legislative Session, including the contracts between the Texas Department of Criminal Justice and participating entities under Rider 55 to ensure the expenses incurred match the appropriated amounts."

In a joint charge with the House Committee on Homeland Security and Public Safety, Appropriations will "Monitor the Texas Department of Public Safety's implementation of the driver's license improvement plan and the use of the funds appropriated to the department for such purposes by the 82nd Legislature" and "Evaluate the feasibility of privatization with the intent to minimize wait times for Texans."

Border and Intergovernmental Affairs
In a joint charge with the House Committee on Homeland Security and Public Safety, the committee will investigate "whether existing provisions adequately address security and efficiency concerns for steamship agencies and land ports of entry along the Texas-Mexico border," and "Evaluate whether the state and the federal government have provided sufficient manpower, infrastructure, and technology to personnel in the border region."

Also portending a interesting hearing: "Examine the extent of interstate coordination concerning border security and intelligence sharing and determine whether any changes to state law are needed to enhance such coordination and cooperation."

Corrections

This committee will have a big juvenile focus in the interim, overseeing the creation of the new juvenile justice department and entertaining notable, juvenile related charges including to, "Study ways to reduce the number of youth referred to the juvenile justice system. Consider the availability of mental health services, diversion and early intervention programs, and other prevention methods." The committee will also "Study and make recommendations about issues related to the certification of juveniles as adults.

On the adult side, the Corrections Committee has been charged with taking a prolonged look at parole: "Review current parole supervision strategies to ensure that resources are being used efficiently to maximize the state's need for public safety and rehabilitation."

County Affairs
This committee has a potentially far-reaching charge to "Conduct a general study of issues facing county jails. The study should include innovative ways to address overcrowding, the impact homelessness has on the county jail population, and recommendations for handling inmates undergoing detoxification and withdrawal from drugs and alcohol." That charge could go almost anywhere.

Criminal Jurisprudence
Shannon Edmonds said it was inevitable. Interim charge number one for this committee is to study the feasibility of so-called "Caylee's Law." "Study and make recommendations for criminal penalties for the failure of a parent or guardian to report a missing child or the death of a child." As Grits reported in July after attending the prosecutor association's post-legislative briefing, "According to Edmonds the law is unnecessary in Texas. There are at least seven crimes on the books here, he said, with which Anthony could be charged besides murder, including tampering with physical evidence - a second degree felony. Even though it's unnecessary, Edmonds declared 'I guarantee you' the Lege will pass Caylee's Law in 2013. He thinks they simply won't be able to help themselves." He may be right.

One hearing that should be interesting in the wake of passage of SB 122 this session will  be when the committee studies and makes recommendations "regarding the current procedures used in the testing of DNA evidence in Texas. Include a review of the feasibility of certifying additional DNA testing centers." Michael Morton, Hank Skinner, and other names familiar to Grits readers will crop up in that discussion, I'm guessing.

The committee will also broadly examine issues related to sentencing and the mentally ill: "Review the current sentencing practices for defendants with mental illnesses and make recommendations. Study practices in other states," and "[c]ompare recent incarceration trends between those who have mental illnesses and those who do not."

Culture, Recreation and Tourism
The best chance for new seafood-related felonies in 2013 may come from interim recommendations by this committee which includes among its interim charges a call to "Evaluate strategies to control known existing invasive aquatic species, including species commonly referred to as giant salvinia (Salvinia molesta), water hyacinths (family Pontederiaceae), and zebra mussels (family Dreissenidae)." There are presently 11 oyster-related felonies, and if they do one for mussels IMO it should count.

Homeland Security and Public Safety
In addition to the joint committee charges listed above, this committee will "Examine the role of law enforcement personnel assigned to school district campuses and postsecondary education campuses and determine whether any changes to laws concerning the enforcement of safety and discipline are necessary. Determine whether additional training of law enforcement personnel assigned to school district and secondary education campuses is necessary."

Public Education
This committee's main criminal-justice related charge is to "Review and make recommendations on the effectiveness of Disciplinary Alternative Education Programs (DAEPs) and Juvenile Justice Alternative Education Programs (JJAEPs) in reducing students' involvement in further disciplinary infractions. Determine the appropriate role of disciplinary alternative placements in promoting education achievement and how technology could be used to supplement education services. Consider appropriate placements in DAEPs or JJAEPs and consistent funding models for those programs. Consider options for counties without a JJAEP or inefficiently few placements in a JJAEP. Identify positive behavioral models that promote a learning environment for teachers to appropriately instruct while addressing any behavioral issues and enforcing student discipline."

Relatedly, the committee will "Review methods and best practices in Texas and other states to encourage more parental and community involvement in the education of Texas children."

State Affairs
This committee, in a joint effort with the Committee on Government Efficiency and Reform, will "Examine areas of potential privatization of state services in an effort to achieve a higher level of service and greater efficiency for Texas taxpayers."

Technology
This committee will "Examine the benefits and financial costs associated with modernizing 911 call centers with the newest technology to connect dispatchers with callers using mobile means of communication in the fastest and most accurate manner possible during a time of emergency."

Jail commission will webcast discussion on new standards

Another item from the Texas Criminal Justice Coalition newsletter that will be welcome news for those outside of Austin with an interest in the Commission on Jail Standards, which is more than a few folks:

Meeting on Jail Standards Revisions to Be Webcast

The Texas Commission on Jail Standards (Commission) will re-engage its initiative to update minimum jail standards.  To encourage ongoing interaction with key stakeholders throughout the process, the Commission will meet in a workshop session on November 2, 2011, at 2pm, in the John Reagan building, Room 120, to outline proposed changes.  The initial workshop session will discuss procedures and process, but NO action will be taken on these proposed changes at this workshop.

• Click here for a list of the proposed changes. 

Since not everyone with a vested interest can attend the meeting, comments on any of the proposed changes should be sent to info@tcjs.state.tx.us or faxed to 512-463-3185.

In addition, the Commission will be launching its first-ever webcast of the meeting.  It will be available online here!  Once you open the link, go to "Video Broadcasts" (right-hand column in gray, under "Legislative Activity") and open the "House" link.

In addition to viewing the workshop session through this link, you can also view the Commission's quarterly meeting on November 3, 2011, at 9am.

TCJS will continue to broadcast both workshop and regular quarterly meetings as its budget allows.

Some of the proposed changes (pdf) are interesting, including a provision to find jails non-compliant if they don't promptly respond to public information requests. Excellent suggestion! Another provision would "allow sheriffs to utilize peace officers in addition to jailers when inmates are outside the security perimeter." Many are technical changes holding little interest for reformers or jailers either one, but some are substantive so if you're professionally interested read the whole thing (pdf). Here's the agenda (pdf) for that meeting, which incidentally includes variances requested by the Harris County Jail among "new business," possibly related to the volume of inmates in pretrial detention who must be transported to court everyday. A webcast, particularly if they'll archive them, will make TCJS activities a lot easier to follow.

TDCJ, parole board publish self-evaluations for Sunset process

From the Texas Criminal Justice Coalition's latest newsletter:

TDCJ's Sunset Review is Beginning - We Want Your Input!

If you care about criminal justice reform, now is the time for you to speak up and voice your concerns.

TCJC is very excited to tell you about a unique opportunity to offer input and suggestions that will help improve Texas' criminal justice system. Presently, the Sunset Advisory Commission has begun its review of TDCJ and other criminal justice-related agencies, including the Board of Pardons and Paroles, the Windham School District, and the Correctional Managed Health Care Committee.  Based on its evaluation, the Commission will make recommendations on how each agency can be improved or whether the agency should be abolished.

You can take part in this opportunity for improvement by letting us know what should be done to improve Texas' criminal justice agencies.  TCJC has created a comprehensive guide to the Sunset process to help individuals understand the process, how they can get involved, and what resources are available.  Please click the link below to download a PDF version of our guide to Sunset:

• Policy Guide to the Sunset Review Process

To download a 1-page flyer on how to participate in the Sunset process, please click below: 

• Share Your Story - Participate in TDCJ's Sunset Review Process!

Again, the Sunset process is in its beginning stages, and most agencies under review have already submitted Self-Evaluation Reports (SERs), which are available on the Sunset Advisory Commission's website.  To view each agency's SER, visit the Sunset SER webpage here!

To view individual agency SERs, please click on the links below:

• Texas Department of Criminal Justice
• Texas Board of Pardons and Paroles
• Windham School District

• Note: The Correctional Managed Health Care Committee's SER is not yet published.

An agency's Sunset review typically only occurs every 12 years, so we must seize upon this rare opportunity to improve the criminal justice system.  Through the Sunset process, and with your help, we can achieve the necessary reforms that can make Texas' criminal justice system a model for others.

They're right. The Sunset process is a unique opportunity to suggest improvements at the agency at a deeper-in-the-weeds level than is often possible. Check out those self-evaluations, as will I, and I'm sure Grits readers will be hearing more on these subjects sooner than later.

Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct

In a pair of extraordinary cases in Williamson and Harris Counties, prosecutors are being forced to testify regarding alleged misconduct and as one might expect, they're not universally happy about it.

In Williamson County, reported the Wilco Watchdog last night, "In a hearing on Monday morning, [visiting Judge Sid] Harle ruled against the Motions to Quash filed by Davis and Anderson, which meant the depositions [will] go forward" to determine the cause of alleged Brady violations in the wake of Michael Morton's DNA exoneration.  Further, the investigation has already begun: "Retired Detective Don Wood, the lead investigator did not challenge his deposition and testified in deposition today. However, John Bradley said a few weeks ago Wood has a "health issue effecting his memory."

Rightly notes the Watchdog, "A powerful sub-plot in this drama involves the calendar. If Davis and Anderson can frustrate the deposition process until the final exoneration of Morton is filed and perfected by the Third Court of Appeals, then the discovery in the case—including the depositions—would cease, based on a crafty provision in the AGREEMENT constructed by Williamson County District Attorney John Bradley. Given the legal games now being played to delay the process, it is becoming clear why Bradley was insistent on including this provision in the agreement."

The Statesman reports that  second-chair prosecutor Mike Davis has relented and agreed to be deposed, but District Judge Ken Anderson, first chair in Morton's prosecution, has filed an additional litany of motions hoping to stall until after time runs out on the discovery agreement with Williamson County. Reported the Watchdog::

Ken Anderson filed:
1. A Motion to Leave For File
2. A Petition for Writ of Prohibition
3. A Petition for Writ of Mandamus
4. A Motion for Temporary Injunction
5. A Motion to Quash
6. A Motion for Protective Order
7. A Motion for Stay of Discovery

Meanwhile, in Harris County, a rogue grand jury has refused to allow Harris County prosecutors to participate in their questioning of witnesses related to alleged retaliation surrounding a whistleblower who wouldn't sign off on results from the Blood Alcohol Test (BAT) van testing. But they have called four prosecutors to testify as witnesses and asked for a special prosecutor not affiliated with the Harris Couty DA's office. This could turn on DA Pat Lykos quickly and provide Murray Newman, who has already dubbed the event "Watergate on the Bayou," enough additional fodder to last the rest of his bloggerly days.

Feds investigating Shelby DA in alleged Tenaha shakedown cases

According to the Associated Press (Oct. 25), the Shelby County District Attorney responsible for infamous asset forfeiture scandal in Tenaha is now herself facing scrutiny from federal prosecutors. The story opens:

The district attorney in a Texas county with a well-known drug-trafficking route repeatedly allowed suspected drug runners and money launderers to receive light sentences - or escape criminal charges altogether - if they forfeited their cash to prosecutors.

As a result, authorities collected more than $800,000 in less than a year using a practice that essentially let suspects buy their way out of allegations that, if proven, would probably have resulted in prison sentences.

"They were looking out for the treasury of their county instead of doing the job of protecting society," said R. Christopher Goldsmith, a Houston attorney who represented one of the defendants.

The system engineered by Shelby County District Attorney Lynda Kaye Russell is now one focus of a federal criminal investigation that is also reviewing whether Russell and other law enforcement officials targeted black motorists for traffic stops.

Interviews, court records and other documents reviewed by The Associated Press show numerous examples of suspects who went unpunished or got unusually light sentences after turning over tens or hundreds of thousands of dollars.

The money from those and other defendants increased the DA's forfeiture account by more than two hundredfold and helped ease a tight budget. The county's former auditor has testified that at least a portion of it was spent on campaign materials, parades, holiday decorations, food, flowers, gifts and charitable contributions.

In one instance, a man accused of transporting 15 kilos of cocaine and more than $80,000 in cash got probation after forfeiting the money to the district attorney. When the Justice Department learned about the deal, federal officials regarded it as so outlandish that they took the rare step of building their own case.

In another case, a woman caught with more than $620,000 stuffed into Christmas presents walked away after reaching a similar agreement.

Russell, who has been district attorney in the county on the Texas-Louisiana border since 1999, did not respond to repeated requests for comment. She announced in June that she was resigning, effective at the end of the year, to care for her sick mother.

Law enforcement agencies across the country often seize money or property believed linked to criminal activity. If they can prove the link in civil court, authorities can take possession of it permanently. But it's highly unusual to make deals that provide suspects with freedom or leniency if they agree to forfeit their cash.

Perry should expand clemency, trump Obama in Christmastime ritual

Last year, Grits authored a column for the Dallas Morning News published December 30 analyzing Rick Perry's paltry Christmastime pardons and lamenting the way holiday pardons minimize the intended, much-more robust role of executive clemency. Since most pardons, experts tell us, are issued in December, I thought I'd recycle last year's prose in time to suggest a more aggressive approach for this year's Christmas pardon ritual on the front end: Governor Perry (and for that matter, President Obama) should consider pardoning or commuting sentences for whole classes of offenders - any class, however modest - instead of picking a few, symbolic cases from many decades ago. Here's the argument I made in the Dallas News last year, edited slightly to add links and update statistics, followed by additional thoughts on how this analysis applies during the campaign season.
__________________

Holiday pardons send wrong message

Dalas Morning News, Dec. 30, 2010

In Federalist Paper 74, Alexander Hamilton predicted today's sorry state of justice without "easy access" to clemency from the executive: "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Who can look at America's prisons - a nation with 5 percent of the planet's population and 25 percent of its prisoners - and not recognize the sanguinary and cruel countenance of justice feared back in the day by Publius?

Clemency is now treated mostly as a holiday ritual, with little more practical significance than the pardoning of Thanksgiving turkeys. True to form, this month President Barack Obama issued nine pardons and Texas Gov. Rick Perry issued eight. In both cases, the clemency granted was a symbolic gesture focused on trivial, long-ago cases chosen more for their lack of political risk than the particular merits of the petitioners.

Obama took longer than any other Democratic president to issue his first, paltry pardons.

And while Perry's done better than the president - maxing out at 73 pardons in 2003, including 35 convicted in the notorious Tulia drug sting - he pardoned just eight people in fiscal 2009, and the fiscal 2010 total won't be much higher.

Georgia, by contrast, pardoned or restored rights to 561 people in fiscal 2010 - about four times as many as our governor has pardoned in his entire gubernatorial tenure. In Georgia, 38 percent of clemency applications are granted. In Texas, it's less than 3.5 percent.

I've become disenchanted with the Christmastime pardon ritual, for reasons ably articulated by pardon expert P.S. Ruckman: "Christmastime pardons send a very wrongheaded - if not outright dangerous - signal to the American people that pardons are something like Christmas gifts, passed out during the holiday season, to those who actually may or may not deserve them. Which is to say, it is no wonder the [federal government is] so shy about pardons. The very timing of them implies their work [regarding] the assessment of pardon applications is a joke."

Indeed, it's hard to not consider these pardons a joke when you look at the details. For example, Perry granted clemency to a 73-year-old man for a theft conviction from 1955. If the governor had waited any longer, he might have had to issue his second-ever posthumous pardon. Another pardon recipient spent three days in jail 31 years ago for unlawfully carrying a handgun. If it's true that justice delayed is justice denied, these latter-day pardons hardly constitute justice.

And why pardon just one individual who "was convicted of possession of marijuana in 1971 at the age of 21"? Are there no other men and women who've grown up to lead productive lives after a pot conviction in their youths? Texas arrests tens of thousands for pot possession every year; hundreds of thousands are in similar circumstances who will never benefit from such gubernatorial largesse.

If the governor is going to issue pardons for such petty offenses, the fair thing would be to pardon entire classes of offenders - for example, pot offenders with no other convictions on their records 10 years later. For that matter, commuting long drug sentences and those of low-risk elderly offenders with high health care costs would actually save the state a great deal of money. Plus, the possibility of clemency creates incentives for good behavior.

I'm not holding my breath for Perry or Obama to embrace a robust, Hamiltonian clemency, but there's a strong case to be made that they should treat the pardon power as more than just a token Christmastime genuflection to values of mercy and forgiveness - which are then ignored in practice the rest of the year.
_________________________

Certainly Perry isn't alone in this. Sentencing Law and Policy recently published a post titled "Clemency policy and practice as symbol of failed Obama presidency," arguing that Obama's failure to exercise his clemency authority shows he "lacks the core convictions and political courage" for the job he holds. In that vein, why shouldn't Gov. Perry use gubernatorial clemency power to differentiate himself from the President?

Who could argue today that, as Hamilton predicted, "The criminal code ... partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel"? If you're going to embrace states rights, it seems to me, you need to also demonstrate you're prepared to shoulder these long-neglected Hamiltonian responsibilities incumbent to states' governance. I harbor no illusions that Perry will exercise clemency authority as aggressively as suggested in that column, but there's a less radical, more politic version that doesn't seem so out there to me:

In the past, Perry has rejected about 2/3 of clemency recommendations from the Texas Board of  Pardons and Parole. Perhaps a good start would be to simply accept more or most of the BPP's recommendations this year (it's not like the people he's appointed to the parole board are a bunch of softies) instead of selecting a symbolic few. Nobody can grant clemency except state or federal executives like Perry and Obama, so a robust clemency approval by Perry this December might generate at least a news cycle or two of interesting press analyzing the pair's relative clemency records (where Perry already compares favorably). By granting more-than-usual clemencies this December, Perry would likely generate good media with little near-term Wille-Horton-esque risk, while setting the story up inevitably as comparing Perry and Obama (since none of the other GOP candidates can grant pardons) and thereby making the governor appear more presidential.

I'm not confident Perry will do that, but if he doesn't he'll have missed an opportunity to separate, even elevate himself in a controlled, positive media moment from the other GOP contenders and the president. And at the moment, his is a campaign that needs to separate itself from the pack.

MORE: For reference, I added FY 2010 clemency data from the Board of Pardons and Paroles annual report (pdf) to update the chart Grits compiled last year on Rick Perry's clemency record, which, while timid, is still superior to the president's:



RELATED: Should have mentioned that the Texas Tribune has a widget to search Rick Perry's past pardons and related acts of clemency.

Why does Texas AG continue to fight DNA testing in Hank Skinner case?

In the Hank Skinner capital murder case, a state court will soon interpret for the first time a new Texas statute passed last spring (SB 122 by Rodney Ellis) which removed most grounds for prosecutorial objections to post-conviction DNA testing when the results might be probative. Reports Brandi Grissom the Texas Tribune:

the primary question the federal court had to answer about whether Texas' DNA testing law violated Skinner's civil rights faced a major change during the legislative session this year.

Lawmakers passed a measure that expanded access to DNA testing and eliminated the limits that prosecutors have cited in their objections to Skinner's requests. State Sen. Rodney Ellis, D-Houston, who helped write the bill, has said that Skinner's case is one the law was designed to affect.

Last month, Skinner's lawyers filed a request in Gray County District Court for DNA testing under the new law. They are now awaiting a decision on that request.

"The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner," Owen said in an emailed statement. "The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."

The Texas Attorney General's office, which is representing the state, today filed its objection to Skinner's request in state court for DNA testing. The state's lawyers argued that the Texas Court of Criminal Appeals has already twice denied Skinner's pleas for additional testing and that even if additional testing were done it would not prove Skinner's innocence.

Since the Legislature passed SB 122 after and in many ways because of and as a rebuke to the Court of Criminal Appeals decisions relied upon to oppose DNA testing under the old statute, I don't understand why the Texas Attorney General is fighting testing so vigorously, any more than I understand why the DA in McLennan County would oppose DNA testing in the Lake Waco murders case. In Skinner's case, as Grits had written previously, "Whether the evidence exonerates him, implicates him, or is deemed inconclusive, [his] case has had a significant effect on jurisprudence surrounding DNA testing, setting new federal precedent and helping spur a new state law." Now it appears likely he'll be a beneficiary of that state statute.

I have no way to judge the likely outcome. Fort Worth attorney Mike Ware, who previously ran Dallas DA Craig Watkins' Conviction Integrity Unit and is now in private practice, once told me that after their unit and my employers at the Innocence Project of Texas vetted cases for DNA testing among a cache of old rape kits discovered in Dallas, the numbers played out roughly 1/3 each in three categories: exculpatory, inculpatory, and inconclusive. Maybe Skinner's test will fall in one of the latter two categories and the AG attorneys will feel vindicated, but if DNA testing is exculpatory - particularly if it contradicts the prosecution's theory of the case or implicates someone else - those lawyers might wish down the line that they hadn't fought testing so hard. Ask John Bradley in Williamson County about that.

'Missing evidence is among military crime lab's new problems'

Just a reminder that crime-lab woes aren't specific to Houston or to Texas, I was interested to read this report published yesterday by McClatchy Newspapers with the same title as this post on problems at the US military's most important criminal lab. The story opens:

The Army's crime lab, already beleaguered by multiple internal investigations, has something new to explain: missing evidence.

Examiners misplaced evidence in a possible suicide investigation and an assault case. One of the analysts didn't notify his superiors for months that a handwriting sample he was supposed to examine had been missing, a miscue that delayed an investigation into the matter until recently.

Meanwhile, two former senior employees of the lab's high-profile forensics testing in Afghanistan have accused their bosses of firing them in August in retaliation for complaining about mismanagement.

Their lawsuits are the latest in a growing list of employee complaints about the lab. In less than four years, at least seven internal investigations have been launched and eight complaints filed against managers. Employees say the turmoil has distracted them from their mission of analyzing evidence.

The U.S. Army Criminal Investigation Laboratory, near Atlanta, is the military's most important forensics facility, handling more than 3,000 criminal cases a year.

Now the lab is trying to determine how evidence that was supposed to have been tested was lost.

These aren't the first reports of problems with military crime lab work (see here and here). It's something we're witnessing at all levels of government: Forensic science has been treated for decades as a backwater of applied science tailored to meet the needs of police and biased as an appendage of law enforcement as opposed to an independent scientific arbiter. Now, the National Academies of Science and others have called for moving to a more independent role, but that bucks up against generations of institutional culture, not to mention historic funding relationships vis a vis whose turf you're on in which government jurisdiction. 

 

The growing pains so far haven't been pretty to watch. Between  the need to upgrade standards of professionalism, greater emphasis on evidence cataloging and retention, and bringing day-to-day practices and court testimony into line with scientific principles, crime labs are in for a rough decade or two before their profession settles down. Hopefully, after change shakes out, they'll find their work more professional, science-based and independent of law enforcement. We need crime labs, but we need them to be better.

That said, the magnitude of missing evidence in the military lab pales in comparison to the worst examples of evidence preservation in Texas, or the lack thereof, especially after police departments in the last few years "discovered" thousands of old, untested rape kits and other biological evidence, which some are now earnestly sorting through and which others are more or less ignoring. So I don't read this news as speaking (particularly) ill of the military crime lab so much as demonstrating that the industry, profession, whatever you want to call it needs to seriously up its game across the board.

'Bubble' in expanding life sentences, LWOP driving TDCJ health costs for older inmates

Sentencing Law & Policy points out an AP story addressing a trend toward greater use of live and life without parole sentences which - somewhat like the housing bubble - Texas came to late in the party but has embraced for the time being until either the bubble bursts or state leaders finally do the math and/or come to their senses. Reports AP:

Nationally, nearly 10 percent of more than 2.3 million inmates were serving life sentences in 2008, including 41,095 people doing life without parole, up 22 percent in five years, according to The Sentencing Project, which advocates alternatives to prison.  The increase resulted from lawmakers "dramatically" expanding the types and repeat offenses that carry potential life terms, research analyst Ashley Nellis said.

"The theme is we're protecting society, then the question is: From what?" said Soffiyah Elijah, executive director of the Correctional Association of New York, a watchdog group. She said with the cost of keeping a state inmate $55,000 a year — a cost that grows as they age and their medical needs increase — a financial analysis shows that parole and probation are far cheaper punishments that can also satisfy the public need for retribution.

Meanwhile, data show new crimes by convicted felons steadily declining from their teens through their dotage. "Most criminal behavior is tied with impulse control. The section of the brain that controls impulse control is the last section of the brain that becomes fully developed," Elijah said. There's a large drop-off in criminal behavior and recidivism after 40 or 45, she said, a point seldom made in public discussion "because it's not convenient. It doesn't dovetail with the kind of tough-on-crime mentality that results in votes."

Patricia Gioia, whose daughter was murdered 26 years ago in California and who runs the Albany chapter of Parents of Murdered Children, said killers should spend their lives locked up, contemplating what they did, the person whose life they took and the lifelong suffering of families and friends.  "They should in effect be punished for this and should not enjoy the freedom that other people have to wander the world," she said.

A Stanford University study in September showed the recidivism rate was less than 1 percent among 860 murderers paroled in California since 1995.  Five returned to prison for new felonies, none for similar life-term crimes. By contrast, nearly 49 percent of all released California inmates were recommitted for new crimes.

"Not only are most violent crimes committed by people under 30, but even the criminality that continues after that declines drastically after age 40 and even more so after age 50," the study found.

Regular Grits readers have known for a long time that Texas faces a growing number of elderly and infirm prisoners in its prison system, many of them with extraordinarily high healthcare costs. These prisoner demographics are the main cost driver for prison healthcare during an era when the Legislature has slashed funding for that purpose.

In recent years, having made virtually everything a felony and pretty much maxxing out on possible sentence enhancements (hence all the absurd ones we get now like misrepresenting the size of a fish), the Texas Legislature has expanded use of mandatory-minimum sentences, introduced life-without-parole (which accounts for scores of new TDCJ admissions each year), and just this year for the first time began to expand use of life-without-parole to non-capital crimes. At last count, around 6% of Texas prisoners were serving life sentences, compared to about 20% in California. (Prisoners with life sentences, as well as sex offenders, are also ineligible for medical parole.)

Texas could avoid going California's route, i.e., paying through the nose to incarcerate prisoners who pose little threat to public safety so this or that elected official can boast they're "tuff on crime." But that's where the system is headed if the state continues down its current sentencing path. California's federal litigation over inadequate health-care funding shows what happens when this particular bubble bursts.

Nuther Brady violation alleged from Williamson County DA's office

The blog Wilco Watchdog breaks the news of another alleged "Brady" violation - i.e,. failure to hand over exculpatory evidence - from the Williamson County DA's office, this time in a more recent 2010 case. Reports the Watchdog, "A fresh piece of evidence in a 2010 case which apparently involved prosecutorial misconduct by an attorney in John Bradley's office has added to a growing concern that hiding evidence which might help defendants wasn't just isolated to Michael Morton's case."

According to court documents, a motion for a new trial (Click here to read motion) was filed in June 2010 based on issues of suppressed evidence by prosecutors. A portion of the motion reads (page 3 of the motion): ”Defense counsel became aware of the evidence during the discussion with the jury panel after sentencing. The State’s attorney, Tommy Coleman (second chair) and defense counsel were discussing what evidence the jurors wished they had seem. Juror number 1, Jennifer Reasner and juror number 25, Michelle, both specifically said they needed to see the sales flyer because it ‘would have most likely been exonerating.' Mr. Coleman then told defense counsel the state had been emailed the piece of evidence in question but had not produced it to the defense.  When defense counsel questioned why Mr. Coleman failed to disclose the information during the trial, (defense) counsel was told ‘it’s too late now, your guys already pled.’” (emphasis in original)

Like his boss, John Bradley, says the Watchdog, the same prosecutor openly mocked requests for DNA testing that ultimately exonerated Mr. Morton: "During one of the Michael Morton hearings in September of this year, Coleman was overheard by several people mocking Morton's attorney, John Raley, who had argued for the relevance of a key piece of evidence which played a pivotal role in exonerating Morton.  In a demeaning tone, Coleman said, "Ewwww!  Bloody bandana! Bloody bandana!" in a cynical attempt to discredit the evidence."

The prosecutor in question, as it turns out, has also served a political stalking horse for the District Attorney and the establishment faction on the commissioners court in local Williamson County political feuds:

Tommy Coleman was employed by John Bradley in 2008. Coleman announced in early 2011 his intentions to run for County Attorney, but he later withdrew his name after discovering a lack of support according to several local political observers.

Coleman has since endorsed Hal Hawes, the Williamson County Commissioners Court legal advisor, who has announced his candidacy for county attorney.

In addition to assuming the role of Hawes’ campaign manager, Coleman also launched a PAC supporting Hawes and is listed as the PAC's treasurer.

For the Watchdog, allegations of additional, more recent Brady violations make the writer wonder just how deep the rabbit hole goes: "With this discovery of Coleman's role involving hiding exculpatory evidence, as revealed by an official filing in the case, one has to wonder how many other times has this evidence-withholding problem has happened? Defense attorneys across the state have chided Bradley for having a closed file policy. Ironically, in one of District Judge Ken Anderson's books, he promotes an open file policy within a prosecutor’s office." (Of course, this is par for the course: Regular readers will recall that Mr. Bradley supported destruction of DNA evidence as part of plea agreements to prevent future habeas writs like Morton's based on actual innocence claims.)

The problem with the Brady requirement for prosecutors to produce exculpatory evidence is that it assumes good faith  and so imposes no penalties for non-compliance beyond - at the very worst - ordering a new trial. For most prosecutors, that's plenty of incentive to follow the rules. But for those willing to cheat to win, prosecutors are immune from civil penalties and except in rare events, face no professional consequences from the state bar disciplinary committee as a practical matter (though that group has announced they're investigating the Morton case). There might be ways to tweak the law to make prosecutors more accountable for overt misconduct, but as it stands, public disapprobation is about the worst penalty they face, even when misconduct was willful and egregious.

Grits wonders why every Brady violation where the prosecutor actually knew about exculpatory evidence and failed to disclose it - as opposed to another agency having information prosecutors were never made aware of - shouldn't result in an automatic referral by the court to the state bar disciplinary committee? I also wonder why courts and the state bar historically haven't taken such misconduct much more seriously than has typically been the case? Instead, court opinions finding Brady violations typically don't even name the prosecutor responsible, much less sanction them, allowing such conduct to be too easily swept under the rug. That should change; if they haven't already, the Williamson DA's office may soon become the statewide poster child driving reforms to strengthen Brady disclosure requirements.

Thousands of Texas prisoners now "brunch" (before 7 a.m.) - weekend meals reduced at 36 units

The New York Times reported this week (Oct. 20) that:

Thousands of ... inmates in the Texas prison system have been eating fewer meals since April after officials stopped serving lunch on the weekends in some prisons as a way to cut food-service costs. About 23,000 inmates in 36 prisons are eating two meals a day on Saturdays and Sundays instead of three. A meal the system calls brunch is usually served between 5 and 7 a.m., followed by dinner between 4 and 6:30 p.m.

The meal reductions are part of an effort to trim $2.8 million in food-related expenses from the 2011 fiscal year budget of the Texas Department of Criminal Justice, the state prison agency. Other cuts the agency has made to its food service include replacing carton milk with powdered milk and using sliced bread instead of hamburger and hot dog buns.

Prison administrators said that the cuts were made in response to the state’s multibillion-dollar budget shortfall in 2011, and that the weekend lunches were eliminated in consultation with the agency’s health officials and dietitians. Michelle Lyons, an agency spokeswoman, said that inmates with health problems who have been prescribed a therapeutic diet continue to receive three meals per day. 

The Times' Manny Fernandez notes that these reductions actually began in April, during the last fiscal year. The cuts as a practical matter were even bigger than depicted in the Times article. Grits reported back in January that this line item was formally cut 13.5%, or more than $14 million, from 2009 levels (which IMO is the better point of comparison in a biennial budget). Still, this is the first story I've seen offering any detail on how implementation has directly impacted the quantity and quality of prisoner food. One imagines scaling back to two meals might also spur commissary sales, which through a jaundiced eye might look cynical after the Lege told TDCJ last spring to seize money in prisoner commissary accounts to pay for their healthcare and confiscated commissary profits for budget reduction that would have gone to "inmate recreational and educational materials."

It was a long, hot, un-air conditioned summer in most Texas prisons, with another one likely next year. Tack onto that rationing food and healthcare and reduced oversight of private facilities, and this issue joins the list of looming budget-related flashpoints before the Legislature meets again. That's especially true since, between weather and the commodities market, as Grits wrote when the budget cuts were announced, "food costs are rising, so that leaves reduced quantity or quality as the only real ways to save money on that line item - unless, of course, the state decides to simply reduce the total number of people it's feeding three times per day." Having failed to do that, front-line austerity in the prison cafeteria became inevitable. The question becomes, is it sustainable?

MORE: Best headline on this from CNN-Money, "Texas prisoners lose their lunch." AND MORE: At Texas Justice Dot Org.