Wednesday, November 30, 2011

Public hearing to evaluate eyewitness ID model policy

Tomorrow I'll be spending my afternoon at a public hearing  at the capitol to discuss the draft model policy on eyewitness identification procedures for potential use by Texas law-enforcement agencies. In the statute, HB 215, the Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT) out of Sam Houston State was charged with creating a model policy, with input from law enforcement and special interests like my employers at the Innocence Project of Texas (I participated in their working group as part of my day job). They'll receive public comment through tomorrow's hearing and then come up with a final version in the next couple of weeks.

Hopefully the MSM will pick up on the story, which hasn't yet gotten a lot of attention but which will affect law-enforcement agencies in every corner of the state. Here are the public hearing details if you're interested in attending, either to testify or just to watch:

WHAT:          Bill Blackwood Law Enforcement Management Institute (LEMIT) will hold public hearings on its new eyewitness identification policy.

WHO:             Cory Session, Innocence Project of Texas Policy Director; Rebecca Brown, Innocence Project Senior Policy Advocate for State Affairs; Michele Mallin, a rape victim whose eyewitness testimony lead to Timothy Cole’s wrongful conviction; Seven Texas exonerees: Charles Chatman, James Giles, Johnnie Lindsey, Johnnie Pinchback, Christopher Scott, Billy Smith and James Waller.

WHEN:          Thursday, December 1, 2011
1:00-4:00 p.m.
6:00-9:00 p.m.

WHERE:       State Capitol             
                        House Hearing Room E2.030 (located in the Capitol Extension)
                        Austin, TX
It's nice of them to add the extra time in the evening for folks who can't make it there during the workday, but I know most of the experts, exonerees and advocates, your correspondent included, are planning to testify in the afternoon session.

Once LEMIT has published its model policy, local law enforcement agencies must produce their own departmental policies by September of next year. Those policies don't have to use language from LEMIT's model, but if history is any guide, most of them will. (The Innocence Project of Texas plans to request all those local policies - more than 1,000 of them - under open records next fall to determine which departments included all the important elements and which ones are still using inadequate procedures.)

For many years eyewitness testimony was considered gold standard evidence in court. Today, scientists understand that it's really a form of "trace" evidence, and like any trace evidence it can be contaminated during its collection. In this case, though, rubber gloves, tweezers and zip-locs won't do the trick. Enacting procedures like those required in the new law and actively training detectives on acceptable methods is the only long-term way to change what's happening at the police station when these lineups are performed.

If LEMIT's model and local departmental policies, in their final form, end up based on nationally recognized best practices, as the legislation clearly calls for - including criteria for filler choice, blind administration, sequential presentation, witness admonishments, the gathering of confidence statements, etc. - it will improve the reliability of  eyewitness testimony by reducing (though not eliminating) errors on the front end. As a practical matter, every false accusation prevented on the front end is far preferable to exonerations decades after the fact, which are endlessly thrilling but also always bittersweet.

I'll update this post later today to add a link to the IPOT's written testimony, which I'm presently finalizing, and with a link to a live video feed for tomorrow if and when I find one.

RELATED: From the national Innocence Project blog: "The Role of Memory in Eyewitness Identification."

UPDATE: Go here for live streaming beginning at 1 p.m. on Thursday, Dec. 1.

See related Grits posts:

Tuesday, November 29, 2011

Surveillance Tech: Fantasies of tin-foil hat crowd coming true

Examining the array of high-tech gadgetry available to law-enforcement to monitor people, Wired magazine identifies "Nine reasons Wired readers should wear tinfoil hats." They are:

• Warrantless Wiretapping
• Warrantless GPS Tracking
• Tracking Devices in Your Pocket
• Fake Cell Phone Towers
• The Border Exception
• The “6 Months and It’s the Government’s” Rule under ECPA
• The Patriot Act
• Government Malware
• Known Unknowns

License plate readers coupled with roadside cameras would've made my Top 9 list, but it's hard to fault these choices. Problem is, Fourth Amendment issues are a political nightmare, with a sturdy bipartisan consensus among  elite circles for gutting its protections like a fish. For those who think voting Democrat will save you from such abuses, please read this paragraph from the Wired story carefully:
The Obama administration claims Americans have no right to privacy in their public movements. The issue surfaced this month in a landmark case before the U.S. Supreme Court to determine if law enforcement agents should be required to obtain a probable-cause warrant in order to place a GPS tracking device on a citizen’s car. The government admitted to the Supreme Court that it thinks it would have the power to track the justices’ cars without a warrant.
As for Republicans, short of a Ron Paul upset victory in the primaries, I doubt any current presidential candidate would be better than Obama on the subject and some would be much worse. So in the near term we're not going to vote our way out of this.

In the government arena, that leaves the courts (which are sharply divided on the subject), or else constructing bipartisan legislative coalitions on narrow, popular elements of a Fourth Amendment reform agenda. Examples that might have legs could be: Rolling back routine TSA frisks at the federal level, requiring warrants to access cell-phone data (which the states could do), or empowering drivers at traffic stops to refuse searches and avoid arrest for fine-only offenses (bills passed by the Texas Lege that Rick Perry vetoed).

Grits also continues to believe that the market may provide better short-medium term preventives than the courts to abuse of such technologies as detection devices become cheaper and more widespread.

The kinds of technologies described by Wired concern me, but such controls can only go so far. Think of a game of chess: Both players can see all of the other player's pieces, but unable to peer into your opponent's mind, it's still easy to be defeated. Besides, all these new technologies are labor intensive: They mainly generate mountains of data that some government employee (or these days, perhaps a private contractor) must sort through then presumably do something with. In an era of government downsizing, there's a limit to the amount of resources which can be applied to such endeavors. So surveillance has practical limits and its wide application is antithetical to popular calls for budget cutting and government efficiency. That's the good news.

The bad news, says Wired: "a tinfoil hat won’t help you at all." Via

See related Grits posts:

Tarrant specialty court focused on family violence by youth on 'nonintimate' relatives

The Fort Worth Star-Telegram has an article ("Tarrant County court program helps youth in trouble with the law," Nov. 27) describing a special family violence court called:
Youth Offender Diversion Alternative, or YODA, [which] is aimed at addressing the rise in Tarrant County of family violence cases involving people ages 17 to 25 and nonintimate relatives such as mothers, fathers or siblings.

A combined effort of Judge Jamie Cummings' court in Tarrant County and the University of Texas at Arlington's Center for Clinical Social Work, it is funded by a $92,000 grant from the Amon G. Carter Foundation.
That's the first time I've heard of the specialty court concept aimed at this particular offender cohort. Of defendants assigned to the court,
Most have clean records but have other problems, such as with school, work or family relationships.
Nearly two-thirds are male, and most of their assaults involved either their mother (43 percent) or sister (17 percent). Of the young women assigned to the program, most involved assaults on a sister (25 percent) or their father's partner, such as a stepmother or girlfriend (19 percent).

The program accepts people up to age 25, but more than two-thirds are 17 to 19. If they complete the program, the charge will be erased from their record as if it never happened.
So far, their aggregate outcomes appear positive, though the programs barely been operating more than half a year so far:
Since the program began in March, 54 participants have been diverted into the program, including eight who signed on last week. Nine have been removed from the program, largely for poor attendance in one-on-one counseling.

A preliminary evaluation of the program after about six months shows that participants who completed the program decreased their aggression and abuse of alcohol and drugs, and increased mental health, resilience, hope and their ability to find solutions to their problems. None of the 20 people who completed the program have committed another offense.
The program was begun with outside grant funding:
YODA is part of the Innovative Community Academic Partnership, or iCap, which is funded by grants from the Carter Foundation.

"It occurred to me that we needed to find a different way to address the violence in the community," said Sheila B. Johnson, a director of the Carter Foundation and granddaughter of Amon G. Carter. "They really were basically OK kids but they didn't have a chance."

The program is funded through December, and tentative funding has been lined up to extend the program through 2012.

Lower jail population provides budget relief in Wichita County

In Wichita County, reducing the county jail population has resulted in substantial, welcome savings in the county budget. The Wichita Falls Times Record News has a story by Matt Ledesma with the bland title "County jail has fewer inmates" which documents Wichita County's remarkable, concerted effort this year among the sheriff, judges and prosecutors to reduce the local jail population quite dramatically: The story opened:
Wichita County Jail officials faced a big problem to start 2011 — concerning a record-setting number of inmates.

The large jail population — which reached a high of 653 in January — put a significant strain on staff and the county's budget to maintain the downtown and Sprague Annex jails.

That burden has been lifted somewhat recently through the efforts of several entities at the Wichita County Courthouse, according to Wichita County Sheriff David Duke.

"Our jail population has slowed down quite a bit, and it's an accumulation of several factors," Duke said. "A lower jail population means there's been a substantial savings to Wichita County. We've had an excess of more than $600,000 to $700,000 we're not using that we've been able to turn back in to the budget."

Population numbers in November have averaged about 420. That's a significant decrease from an average of about 613 in January.

That average has dropped steadily since February, though that's not due to a lack of law enforcement activity, Duke said. Daily book-ins have remained nearly the same throughout the year, hovering at about 24.
Instead, Duke credited several groups at the courthouse for the stretch of desirable population numbers.

"One of those factors is our staff being able to process faster, inmates that are ready to be sent to (Texas Department of Corrections) or state jail," Duke said. "We've also gotten help from the District Attorney's Office. We have more people being convicted and sent to prison now than we ever have that I can remember in the last 29 years of my service to Wichita County. That's because of the new district attorney and her staff that have changed a lot of the ways they do business up there."

Duke also touted the efforts of the district court and county court at law judges in dealing with plea arrangements on felony and misdemeanor cases. He said the judges are also able to handle many of those cases at the same time, further expediting the process.

The savings to the county, brought on by that streamlined process, have also helped out in other problem areas. Funds once earmarked for the crowded conditions are now being put toward a large amount of amassed overtime pay for county employees, Duke said.

He said the low numbers have also meant a cutback on overtime pay for jail staff requirements based on the daily inmate population.
That's an impressive 31.5% reduction in the local jail population in less than a year. Not many other counties could make that claim. This example highlights how addressing jail crowding problems really requires cooperation across an array of entities from the police to the DA, the Sheriff, judges and even the defense bar  - there are too many cooks in the kitchen, many of them elected officials, and as the proverb says, it's difficult for them all to work together without spoiling the broth. Maybe such cooperation is easier in a mid-size county like Wichita than in larger cities like San Antonio and Houston.  In any event, if they can sustain it, their example shows such problems are not insoluble, or rather there are more solutions to be had than simply ever-expanding jail construction.

Monday, November 28, 2011

Grievances filed against Bradley, Anderson and Davis

A group I'd not heard of, the Texas Coalition on Lawyer Accountabilty announced that it has filed grievances aganst current Williamson County District Attorney John Bradley, former Williamson County District Attorney (and current District Judge) Ken Anderson, and former Williamson County Assistant District Attorney Mike Davis. Go here to download copies.

The grievance against Bradley includes allegations related to the Forensic Science Commission's investigation into flawed forensics underlying Todd Willingham's conviction, in addition to alleged misconduct related to the Morton case. Via Wilco Watchdog.

MORE: See additional analysis from Wilco Watchdog. And from the Texas Tribune.

UPDATE/RELATED: Via KXAN-TV, "John Bradley files for re-election."

Legislative recommendations from LBB criminal-justice focus group, practitioner interviews

Scanning the Legislative Budget Board's new Adult and Juvenile Correctional Population Projections (pdf), in the "qualitative analysis" section, for which they queried more than 100 people in "Focus groups and interviews with criminal justice practitioners, juvenile justice practitioners, and adult offenders," I ran across these interesting summaries about what these insiders told LBB they think could/should be done to improve the justice system:
Focus group and interview participants most consistently mentioned the need for investment in mental health resources of all types. Expanded inpatient and outpatient treatment, additional funding for specialized community supervision caseloads, increased reimbursement rates for mental health professionals, and additional state hospital capacity for competency restoration were all mentioned as important needs. Practitioners also agreed statutes and policies regarding DWI punishments need revision. Currently, DWI offenders have little incentive to obtain treatment through community supervision; offenders increasingly prefer short terms of incarceration in county jail. Possible solutions mentioned for this issue included offering deferred adjudication and potential early termination from community supervision for DWI offenders. Participants also voiced support for ending or reforming the Driver Responsibility Program (DRP), which provides significant financial burden on DWI (and other) offenders with seemingly little to no public safety enhancement. Other legislative recommendations included providing Community Supervision and Corrections Departments (CSCDs) additional flexibility in the use of state funding and providing offenders more incentives to choose community supervision over incarceration.  (emphasis added)
Equally important, questioning offenders:

Offenders most consistently mentioned three factors that would improve criminal justice and keep offenders in the community: employment opportunities and assistance, expanded access to substance abuse treatment, and additional educational opportunities. Offenders indicated employment opportunities and assistance as the most important need of these three responses.

According to focus group and interview participants, mental health treatment options are the most needed resources to rehabilitate offenders in the community. Specifically mentioned resources included additional residential treatment, additional outpatient treatment, and increased reimbursement rates for mental health treatment providers. Along with mental health resources, practitioners indicated offenders need additional incentives to choose and/or remain on community supervision in lieu of incarceration. Participants also mentioned the need for additional resources specifically directed to meet the needs of female offenders.

LBB forum on TX juvie corrections populations

Regrettably I missed the last LBB presentation on their uniform cost report, but there's another one this week related to juvenile justice, which may interest those of you here in the capital who're able to attend. The notice reads:
Juvenile Correctional Population Projections
December 2, 2011 (1:30pm – 3:00pm)
Presenter: Jamie Gardner

To determine appropriate funding levels and appropriate policies regarding correctional populations, accurate population projections are vital. Correctional population projections also provide a road map of indicators that influence population growth or reduction. This forum will explore the methodology, techniques, and software used to develop projections for various juvenile justice correctional populations.
See the related LBB document projecting adult and juvenile corrections populations here (pdf).

LBB believes the precipitous drop in youth prison populations has bottomed out and will remain at current, historic low levels for the foreseeable future. Juvenile arrests continue to drop, but LBB does not expect juvenile probation populations to drop much further.

The event is at the Robert E. Johnson Conference Center in Austin. "Capitol visitor parking is available on the corner of 12th Street and San Jacinto Street. ... For questions you may contact us at or call Michele Connolly or Ed Sinclair at 512-463-1200. Copies of the reports we will be presenting from can be found on our website here."

Texas 'Students Do Without Art,' but streets still open to graff writers

I was interested to see the headline from Business Week on Texas' failure to resolve its school funding crisis: "Texas School Finance Fix Eludes Perry as Students Do Without Art." Grits would add a coda to Business Week's art reference, captured in a headline from this 2009 post: "Kids do less art in school, more in street; Lege reacts with hammer." That post argued that:
Texas schools have seen the arts de-prioritized to focus on the TAKS test. As a result, Texas experienced "a drop in middle school fine arts participation from 75 percent student participation in 1999 to 66 percent in 2006."

Perhaps relatedly, during this same period in Texas graffiti crimes soared; the amount of graffiti in Austin, for example, increased 400% from 2002 to 2007. But all legislators can think to do is increase punishments, not artistic opportunities.
How 'bout it? Do you believe the fact that Texas youth are doing less art in school and more graffiti in the streets is a coincidence? Might providing more legitimate outlets for youth creativity produce the added benefit of reducing illicit tagging?

Cuts to mental health may leave Texas jails warehousing more mentally ill

As was predicted even before the 82nd Texas Legislature began, large budget cuts to front-line mental health providers are handcuffing community-based treatment programs and shifting the burden (and cost) to local police and county jails. Reports Kevin Krause at the Dallas News (Nov. 27, behind paywall):
Dallas County officials and homeless advocates say millions of dollars in planned state cuts to mental health care will severely tax an already overburdened system and could lead to increases in the homeless and jail inmate populations.

Money for Dallas County and six neighboring counties that receive mental health services under a privatized system called NorthStar will see $10.7 million less in the 2012 fiscal year, officials said.

That includes about $5 million used to treat people who are sent to state hospitals such as the one in Terrell.

Dallas County commissioners recently sent a letter to the Legislature’s two top budget writers, explaining the situation and asking for help. Ron Stretcher, the county’s criminal justice director, said help was promised.

But it may not come soon enough.

“We’re asking to have that money restored,” said Stretcher, who acknowledged that that is unlikely. “We’ve had to start cutting.”

The first round of cuts will go into effect Dec. 1, he said.

Between 70 and 100 clinic-based caseworkers will be laid off, Stretcher said. And less inpatient psychiatric care will be contracted for at Green Oaks Hospital.

Also, an after-hours clinic operated by MetroCare Services for people who missed appointments or have trouble seeing doctors will close, he said.

And the county will have fewer case managers at housing projects for those who previously were homeless because of mental illness or substance abuse, Stretcher said.

Those cuts cover about half of the expected deficit, he said.
The same story, no doubt, could be localized nearly everywhere in the state. Of all the dunder-headed, penny-wise, pound-foolish decisions affecting criminal justice coming out of the 82nd Legislature, this one strongly competes for top billing (perhaps along with underfunding prison healthcare by $100 million without reducing their number of patients). At this point, ironically, for some folks on the lowest rungs of society, the only way to access mental-health services really is to commit a crime.

In particular, cutting "case managers at housing projects for those who previously were homeless because of mental illness or substance abuse" has real public-safety implications, taking some of the support out of "supportive housing" often aimed at frequent flyers from the jail. It also has implications for the county budgets, since most big-county jails are full and the mentally-ill often cost several times as much per day to incarcerate as the average prisoner.

As a practical matter, this year's cuts to community-based mental-health programming amounted to an all-but-overt decision to dump the costs onto local criminal-justice systems, particularly county jails, as a back-end, off-the-books substitute for community-based care. As a result, “'We’ve won the race to the bottom,' said Matt Roberts, president of Mental Health Association of Greater Dallas," to Kevin Krause.

The justice system has a lot of moving parts, some of which, as with community-based mental health services, aren't formally even part of the justice system. In too many cases, when somebody's homeless, mentally ill and stealing, trespassing, begging or sleeping where they oughtn't or even engaging in aggressive behavior, local authorities have few short-term solutions available to them besides the jailhouse. This year's cuts narrowed locals' options even further, by this account gutting community-based supports in Dallas that divert folks from jail and prevent crime.

Shifting costs to counties in a way that costs taxpayers even more isn't so much a conservative budgeting approach as it is an abdication of leadership. If your goal were to cut overall costs to the taxpayer and maintain or improve on the all-time low crime rate the state and nation enjoy at the moment - and if, heaven forbid, you didn't suffer from the myopia of focusing one funding stream but instead sought overall cost containment - a wiser strategy would be to boost resources for community-based alternatives to avoid using (more expensive) local jails as a primary mental-health provider whenever possible. Instead, the Lege de facto chose the most expensive and least practical approach to the problem, further transforming large wings of the jailhouse into mental health wards while cutting social services on the front end.

That's a helluva way to run a railroad.

Sunday, November 27, 2011

Roundup: Lightning strikes, news flashes, and principle ducks for cover

A few odds and ends for your holiday reading pleasure:

When lightning strikes
Williamson County District Attorney John Bradley told the Dallas News that the Michael Morton DNA test results hit him like a "lightning bolt." Though they didn't invoke the road to Damascus, they did say the Williamson County DA now "testifies to a conversion." Declaring, “We need to leave the window open a little bit more,” Bradley says he hopes speaking up will influence how other prosecutors approach post-conviction DNA cases: “I finally decided that it was more important that I overcome my concerns about people’s opinions about my shifting of my personal opinions, because I saw that it has public value in helping other prosecutors, I hope, adjust their point of view.” Abel Reyna, are you listening?

Police, distracted driving and civil liability
Austin PD accounts for the largest proportion of payouts in civil suits of any city-owned department in the capital, including the electric utility and the airport. Chief Art Acevedo blamed distracted driving on a significant number of settlements related to automobile accidents involving police officers: “They're in the patrol car environment where there is a lot of things going on. You've got the computer going on, you've got the radio going on. They're looking where they're at. They're looking for violations, they're looking for risks.”

Spillover violence documented in Valley
Law enforcement reports the first, documented example of "spillover" cartel violence in the Rio Grande Valley, if you don't count gang members from the Texas side spilling over to commit violence in Mexico. This event is an important marker, but still a far cry from the absurdist, politicized claims made recently on behalf of Texas DPS and the Ag Department.

Drug violence in Puerto Rico
Lots of interesting detail in this story about which I wasn't aware; you never hear PR violence discussed in any of the "spillover" discussions.

News flash: Prison-industrial complex exists
Conservative columnist Jonah Goldberg offers a "small apology" to his ideological foes, admitting to the existence of "a prison-industrial complex" he'd "long thought" didn't exist. He sees it as dominated by public-employees unions rather than private-prison companies and other such corporate-welfare recipients. For my part, I consider both special interests to be partially culpable for the situation, and many other elements besides. These are not mutually exclusive factors.

MSM scorns principle in criminal-justice debates
A frequent theme on this blog is that, despite how they're framed in the mainstream media, criminal-justice issues seldom fall along partisan nor strictly ideological lines. Nowhere can that be seen more clearly than in the LA Times headline, "Criminal defendants find an unlikely friend in Justice Scalia." The story by David Savage is fairly typical of modern MSM criminal-justice coverage, demonstrating many of its shortcomings all in one place. Notice how, for example, a judgment in favor of the defense (e.g., on Confrontation Clause issues) makes US Supreme Court Justice Antonin Scalia a "friend" to criminals. All nuance is lost: You're either for criminals or against them, though bizarrely the headline complains of Scalia, "For him, there are no shades of gray." That's the pot calling the kettle black, indeed. The newspaper quotes a law professor explaining, "This is not a left-right split. This is principle versus pragmatism" (though Grits would argue that some of Scalia's most controversial assertions on criminal justice have been profoundly pragmatic). But the issue is presented as though judges basing decisions on principle - as opposed to the convenience of government bureaucrats or the structural biases of the press - is somehow a bad thing. Perhaps, in light of the string of modern DNA exonerations and the lessons learned by John Bradley mentioned above in the top item, 21st-century journalists shouldn't be so quick to dismiss every effort to instill fairness or adhere to principle in the justice system as somehow coddling criminals? Just a thought.

Saturday, November 26, 2011

Few cases against judges sustained by Judicial Conduct Commission

Looking at the self-evaluation report (pdf) from the State Commission on Judicial Conduct, we discover that scarce few complaints against judges result in any sort of disciplinary action, including reprimands, warnings, or "private admonitions." Here's a chart Grits compiled from data on p. 19:

A total of 22 judges over this period resigned in lieu of disciplinary action by the commission, including 10 in FY 2010. (Analyzing details of those stories would make an interesting study of the dark underbelly of Texas jurisprudence!) Of the tiny number of cases resulting in disciplinary actions, a whopping 118 of the 260 sanctions (45.4%) against Texas elected judges over this period were kept private, with details never reported to the public.

In none of those years, though, did the commission take the extraordinary step of recommending the Supreme Court suspend a judge, as they did in William Adams' case.

Holding Texas judges accountable for past misconduct: William Adams and Ken Anderson

Quite a few readers contacted Grits a couple of weeks ago asking if I planned to comment on the Aransas County family law judge who was videotaped beating the living crap out of his then-16 year old daughter for illegally downloading music. She made the video in 2004 before releasing it in retaliation earlier this month when he threatened to cut her off financially (revenge, unlike grits, is best served cold). Grits refrained, mainly because the topic was being widely discussed by others more effectively than anything I could have said, and I had nothing in particular to add to what was mostly a family-law discussion. (Besides, 3+ million people had seen the YouTube clip before I did; it hardly needed my promotion.) The video was horrendous, nearly unwatchable, far exceeding any acceptable fatherly punishment to surpass the threshhold to "abuse." But the statute of limitations had run out, the daughter is now 23 and no longer lives with her father, and most attorneys who've looked at the question, including the local DA, agreed there's no way to turn it into a criminal matter.

Even so, I was fascinated to learn via CNN that the State Commission on Judicial Conduct is not only investigating the old abuse allegations but has convinced the judge to accept a paid suspension while it does so:
Judge William Adams, who made national headlines after the release of a 2004 video of him beating his then-teenage daughter, has been suspended by the Texas Supreme Court.
Adams, while not admitting guilt or wrongdoing, agreed to the suspension. He will be paid during the suspension.

The judge's lawyer, William Dudley, said his client proposed the suspension motion with input from the state Commission on Judicial Conduct, which is investigating the incident. Adams already was on voluntary leave, Dudley said in a statement to CNN.
See the order (pdf) and the commission's public statement (pdf) in Judge Adams' case, and the commission's rules (pdf) for disciplining or removing judges. What interests Grits in particular are possible parallels to Williamson County District Judge Ken Anderson, the prosecutor in the Michael Morton case who 25 years ago apparently hid exculpatory evidence from both the defense and the court to convict an innocent man, allowing the guilty one to remain living free in Bastrop County for the intervening decades. Just as the statute of limitations has run out on any possible offenses in the video from Adams' years-ago incident, the statute or limitations on any prosecutorial misconduct in the 25-year old Morton case have also likely expired. But if the Commission on Judicial Conduct can investigate Judge Adams over old abuse allegations, and even facilitate his suspension while they do so, why can't or won't they do the same for Judge Anderson in Williamson County?

I've been told privately that, even though the statute of limitations on Adams' conduct may have expired, there's an argument to be made that the commission could pursue him under its constitutional authority to discipline judges who engage in "willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice." A family law judge who engaged in that kind of behavior in his own family life, the argument goes, willfully engaged in behavior that cast discredit on the judiciary.

Similarly, assuming withholding exculpatory evidence from the judge was a willful act (instead of an act of extreme, near-unfathomable incompetence), it's hard to argue that Judge Anderson's recently-revealed shortcomings aren't "inconsistent with the proper performance of his duties or casts public discredit upon the judiciary." If the Commission on Judicial Conduct found a hook to justify intervention on older charges in Adams' case, Judge Anderson's should be similarly fair game.

Ken Anderson hid evidence and misled the judge in perhaps the biggest trial of his prosecutorial career. His alleged misconduct was primarily responsible for a false conviction which ranks among the worst injustices in the state's history, threatening to elevate him to Mike-Nifong status in the pantheon of convict-at-any-cost prosecutors willing to cheat to win. He's an embarrassment to his county and his profession - yet he still sits on the bench in a Williamson County District Court, dispensing what passes for "justice" in that jurisdiction. Why? Anderson's past misdeeds weren't violent but they discredit any claim he might make to integrity or impartiality on the bench in much the way that Judge Adams' tumultuous family life discredits his family-law credentials.

Grits suspects Anderson himself has insufficient capacity for self-reflection or shame to himself contemplate stepping down; his failure to accept responsibility - apologizing for "the system" but insisting he himself was blameless - surely demonstrates that. But if the Commission can find a hook to go after Judge Adams regarding years-old charges, they should find a way to do the same thing in Williamson County. Much as with Judge Adams, every day Anderson remains on the bench taints and demeans not just the integrity of Texas' judiciary but the entire legal profession.

Opportunity for activism
Speaking of the Commission on Judicial Conduct, they're up for Sunset review along with TDCJ and the Board of Pardons and Paroles, and you can see their self-evaluation report here (pdf). (More soon analyzing that document.) Anyone frustrated with the impotence of judicial oversight in Texas should view the Sunset process as an excellent chance to suggest improvements to the process.

Friday, November 25, 2011

Roundup on Williamson County prosecutor misconduct fiasco

Several recent essays on the prosecutorial misconduct mess surrounding the Michael Morton case out of Williamson County caught my eye and deserve Grits readers' attention:

Wednesday, November 23, 2011

No fluff to cut: Policy changes needed to reduce next TDCJ budget

State Rep. Susan King held a town hall meeting in Abilene recently and got an earful from a Texas Department of Criminal Justice (TDCJ) employee unhappy about budget cuts at the agency, according to the Abilene Reporter-News:
King said that because there was no increase in revenue, the state was left in a "structural deficit" with no way to pay for existing programs.

"If we don't increase revenue, something will have to be catastrophically cut," she said.

The most lively exchange came between King and a Texas Department of Criminal Justice employee from the French Robertson Unit who complained about excessive cuts to the criminal justice system.

"Where would you cut?" King asked the man. "What agencies do you think have too much fluff?"

"I can't answer that," he acknowledged.

After the meeting, King said that although she appreciated the man's fervor, it typified the problem that arises when it comes to making cuts.

"Nobody can tell you where to make cuts in their department," she said. "It's other places where cuts can be made."

Earlier in the meeting, she remarked that she had heard the admonition not to "balance the budget on the backs of the schoolchildren."

"People say the exact same thing about the elderly and the exact same thing about the infrastructure," she said.
Bingo! She's exactly right. Indeed, next session's budget gap will likely be even larger than the state faced this time, when the Lege cut TDCJ's budget but did virtually nothing  to reduce the number of people in prison.

The real problem isn't that the agency's budget was cut - Grits believes it could be reduced substantially more - but that the Legislature failed to enact policy changes to make that reduction tenable. (E.g., they underfunded prison healthcare by more than $100 million while doing nothing to reduce the number of prisoners covered.) At this point, to further reduce corrections spending safely, the state must shift spending emphasis at TDCJ from prisons to community supervision - i.e, probation and parole. If the Lege would change policies to incarcerate fewer low-risk offenders, cutting TDCJ's budget would appear not only possible but wise.

I'm pleased to see King's comments because too often Texas pols, just like in Washington, pretend they can be all things to all people, claiming they can cut "waste" without reducing services while lowering taxes despite yawning budget shortfalls. But there's no more fat to cut at TDCJ: Either the Lege must enact policies that let TDCJ reduce inmate numbers and close more prisons, or else live with a ever-increasing incarceration bill paid for with higher taxes.

Perhaps Rep. King is prepared to begin believing impossible things.

Tuesday, November 22, 2011

Bearish on private prison stocks if mass-incarceration bubble bursts

Over the past several years Wall-Street analyst types have been touting private prisons as a wise long-term investment, primarily for three reasons:
  • The rise of mass incarceration over the last three decades, assuming the trend will continue
  • State budget cuts reducing the likelihood that state governments will spend to build more prisons, and
  • A massive increase in immigration detention policies that began under Bush II and escalated dramatically under Obama.
So I was interested to notice that Market Intelligence Watch, which has been bullish on private prison stocks for a quite a while, in the last couple of months issued statements about the two largest private prison firms - Corrections Corporation of America and Geo Group declaring both suffer from "bearish technicals," which would be much closer to my own assessment. Geo stock recently hit a 52-week low, down 30% from just a year ago.

For several years now, Grits has believed that, examining the underlying fundamentals, both firms (particularly GEO) are far too laden with debt to justify bullish advice to investors. GEO has warned in corporate filings that its debt load could soon require them to divert money from operations to pay for debt amassed to gobble up competitors. Similarly, CCA's latest 10-K report on file with the SEC says its large debt could "require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness."

Even more than their massive debt loads, though, a bigger potential problem for these companies may be the possibility that we're nearing the end of the largest incarceration boom (read: bubble) in the history of the planet. The three bulleted factors above all could easily reverse in the next few years. More states are contemplating de-incarceration measures because of budget shortfalls, for example, and states like Texas have seen their incarceration rates decline. If states implement such policy changes on a wider scale, it could reverse the upward trend mentioned in the first bullet and debunk the premise of the second - that incarceration rates will continue to increase even if states can't afford new prison construction.

Meanwhile, the boom in immigration detention is a short to medium-term phenomenon at best, driven largely by nativist sentiments that will not prevail long-term in political circles because of their radical impracticality. Even Rick Perry has suggested a program to let the 12-14 million undocumented immigrants get visas to stay here legally, while bipartisan proposals for comprehensive immigration reform, like the bygone McCain-Kennedy legislation, would likely go even farther. Immigration detention on its present scale is at best a short-term fix that will decline dramatically whenever a long-term political solution, of any sort, is finally reached. The companies' long-term debt, however, won't go away just because their number of contract beds decline.

If Grits is right that we're nearing the end of America's mass-incarceration bubble - and admittedly that may be wishful thinking, though I believe there are signs of a sea change in both elite and public opinion on the topic - then in coming years these companies' high debt loads will become entirely untenable. As CCA put it in their 10-K:
A decrease in occupancy levels could cause a decrease in revenues and profitability. While a substantial portion of our cost structure is generally fixed, a significant portion of our revenues are generated under facility management contracts which provide for per diem payments based upon daily occupancy. We are dependent upon the governmental agencies with which we have contracts to provide inmates for our managed facilities. We cannot control occupancy levels at our managed facilities. Under a per diem rate structure, a decrease in our occupancy rates could cause a decrease in revenues and profitability. When combined with relatively fixed costs for operating each facility, regardless of the occupancy level, a decrease in occupancy levels could have a material adverse effect on our profitability.
These companies' biggest nightmare would be a combination of drug legalization and comprehensive immigration reform. Again from CCA's 10-K:
The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.
Investing in private prisons basically is a wager that the United States has such a dysfunctional political system that we can't solve the immigration question or scale back the drug war, ever, and for many years that's seemed like a prescient gamble. Betting on the intelligence and competence of government officials will always get you poor odds. But if that longshot comes in and America's mass-incarceration bubble finally bursts, investors in both these companies will take a huge hit. The "bearish technicals" identified at CCA and the GEO Group may just indicate that, at this particular point in history, those long odds could be getting shorter. I certainly hope so.

Monday, November 21, 2011

Texas reports disproportionate number of arrest-related deaths

I was interested to see a new report (pdf) out from the Bureau of Justice Statistics on arrest-related deaths, revealing that 696 Texans died while being arrested from 2003-2009. Here are a few highlights from the summary:
  • A total of 4,813 deaths were reported to the Arrest-Related Deaths program from January 2003 through December 2009.
  • Of reported arrest-related deaths, 61% (2,931) were classified as homicides by law enforcement personnel, 11% (541) were suicides, 11% (525) were due to intoxication, 6% (272) were accidental injuries, and 5% (244) were attributed to natural causes.
  • State and local law enforcement agencies employing 100 or more full-time sworn personnel accounted for 75% of the 4,813 arrest-related deaths reported during 2003-2009.
  • Among reported arrest-related deaths, 42% of persons were white, 32% were black, and 20% were Hispanic.
So Texas accounted for 14.5% of arrest-related deaths, while comprising a little over 8% of the US population. That said, it's not simply that Texas cops are more trigger happy: Just 44% of arrest related deaths in Texas were homicides by police (308) compared to 61% nationally, while suicides and intoxication-related deaths made up a greater proportion than in other states for reasons not articulated in the report.

Last year 39 Texas law-enforcement agencies reported an arrest-related death, a seven-year low down from 53 in 2007.

To be clear, these data are neither comprehensive nor rock-solid due to different methodologies of identifying and reporting arrest-related deaths among the states. Texas' numbers may appear inflated because many states submit incomplete data - three (Georgia, Maryland, and Montana) submitted none at all over the period - while Texas and California both mandate data collection under state law. Also, the report does not include "deaths that occurred in a jail or other long-term holding facility and deaths that occurred in the custody of federal law enforcement officers."

Sunday, November 20, 2011

Waco DA issues spurious 'guidelines' on post-conviction DNA testing

McLennan County District Attorney Abel Reyna appears to be struggling with the conflict between enforcing the law and promoting his own policy preferences in the courtroom, at least when it comes to DNA testing in the so-called Lake Waco murder cases, which he continues to oppose despite having no legal basis to do so. As Cindy Culp reports in the Waco Tribune Herald (behind paywall), Reyna's stance sets him apart: "In stark opposition to prosecutors in some of Texas’ largest jurisdictions, ... Reyna has no plans to adopt a policy generally supporting prisoners’ requests for DNA testing after conviction," the story opens.

Wrote Culp, "Reyna, who took office in January, said he won’t support testing requests unless a case meets a rigorous set of guidelines."

The problem is, his "guidelines" have no basis in law and in fact contradict a Texas statute passed earlier this year expanding access to post-conviction DNA testing. Quoting my colleague Nick Vilbas from the Innocence Project of Texas, the story described how, in the past, prosecutors who opposed testing "usually [did] so on the grounds that other evidence proved the defendant’s guilt." But the Legislature this year eliminated those grounds as a reason to prevent testing. Instead:
Under current law, inmates can ask for DNA testing if biological evidence in their case has never been tested, regardless of the reason why.

They also can ask for new analysis of previously tested evidence if newer methods that might yield more accurate results have become available since the initial testing.

“The fight shouldn’t be about getting the testing done,” Vilbas said. “The fight should be about what does the testing mean.”
Not only does the DA's opposition have no basis in law, the practical concerns he expressed in the story have no basis in reality: “What does any person who’s ever been pled or been tried have to lose [from requesting testing]?” Reyna said. “McLennan County would probably need another felony district court to just handle (testing) motions.” However, wrote Culp, "That’s not the experience of some of Texas’ largest jurisdictions, where DNA testing requests are generally supported by their offices, prosecutors there said." For example:
Austin’s Travis County, for example, usually gets two to three requests per month. The county has a population of more than 1 million people.

Dallas County — which has a population of 2.4 million people and has had more DNA exonerations than any jurisdiction in the nation — gets fewer than 10 testing requests per month.
Judges in Waco must have pretty light caseloads if that volume would require creating a new district court. These are ignorant comments by someone who was seemingly unaware of the law until recently and now, having read it, wishes to substitute his own policy preferences for those of the Legislature.

Bizarrely, Reyna continues to couch his opposition to testing in the Lake Waco murder case as respect for "jury verdicts," seemingly ignorant of or oblivious to the fact that the case ended in a plea bargain, not a jury trial. In this instance the defendant pled guilty then later recanted, "saying he falsely confessed because his attorneys told him he would almost certainly get the death penalty if he went to trial." In that light, Reyna's commentary about respect for juries comes off as weird and out of context. As Scott Greenfield noted, "the inability to test DNA at the time makes this new evidence, and there's no disrespect to the jury (even if there had been one) or the system's interest in finality when new evidence comes to light."

Bottom line, as I suspect Reyna will learn definitively when the court rules on the pending motion, the new law means it doesn't matter much whether Reyna supports or opposes DNA testing and his "guidelines" are mainly useful as toilet paper: The law no longer includes those caveats and he cannot impose them by fiat.

See related Grits posts:

Messing with Texas death sentences, and other stories

Grits noticed several interesting if disparate items I thought I'd pass along:

Peach state contemplates de-incarceration
In Georgia, a special task force on reducing prison costs has released its recommendations. See the full report (pdf). Among them:
  • Reserve expensive prison beds for the most violent, high-risk offenders and find alternatives for nonviolent offenders found to be low risks to offend again.
  • Readjust the sentencing ranges for burglary, with more serious punishment reserved for break-ins of homes and less severe sentences for burglaries of unoccupied structures, such as tool sheds, barns and buildings.
  • Decriminalize minor traffic offenses that clog up the court system, making them violations and not misdemeanors.
  • Expand access to effective substance abuse and mental health treatment in communities across the state.
  • Allow inmates and those under supervision after release to be allowed to shave time off their sentences if they behave and take affirmative steps toward rehabilitation.

Okies suggest reforms around incarcerated fathers
In Oklahoma, a task force examined the issue of fathers in prison and the impact on their children:
Ideas for how to improve the father-child bond are among the recommendations that the task force will make to the Oklahoma Legislature.

For one, the issue of how incarcerated fathers pay child support has been discussed.

Basler said many incarcerated fathers don't mention their children because they owe child support and don't understand how to apply for a reduction in payments while incarcerated.

Because of this issue, the task force has on its list of recommendations an informational DVD on child support that would be shown to offenders upon entry.

Other recommendations include creating a standardized parenting curriculum and increasing the availability of parenting classes, increasing communication through video technology such as Skype and providing training for police on how to deal with an arrest when a child is present.

Tracking the trackers: Analyzing the tools of high-tech surveillance
With the US Supreme Court currently considering whether GPS tracking devices should require a warrant, I was interested to see a law student note titled "Where are we now? Location tracking, technological change and the Fourth Amendment." As it turns out, says the article, "courts use the term 'GPS tracker' to mean any one of a number of different kinds of devices, all with varying capabilities." The note purports to "analyze the specific details of current tracking devices—how they work, what they can do, and what they cannot," exploring the implications of those factors on Fourth Amendment jurisprudence. In particular,
some location tracking devices reveal the target’s location every second of every day, while others only provide information when asked; some devices require the investigator to approach the car to retrieve the information, while others allow the officer to retrieve the information from miles away; some devices are incredibly accurate, while others provide only general tracking information such as the direction and approximate distance of the target; some are able to alert the police when a target is moving or is outside of a certain area, while others require the police to retrieve the device from the car in order to download the information; some are powered by batteries, while others are connected to the suspect’s car and draw power from its power source.

All of these factors could be relevant to the Fourth Amendment analysis. For example, devices that investigators attach to car batteries may result in an unlawful seizure of the battery power or violated a protected interest in the car, and devices that allow the investigator to access the information from anywhere in the world may reveal information that is not actually exposed to the public the same way as devices that require police action. Increasingly more accurate devices may violate the sanctity of the home.
Grits had argued in the wake of oral arguments in the Jones case that the courts appear incapable of addressing these issues and that state legislatures should step in to fill the void. On that front, the article noted that:
a half-dozen legislatures have prohibited the use of electronic tracking devices without prior judicial approval. In California, for example, the legislature made it a misdemeanor to “use an electronic tracking device to determine the location or movement of a person.” The legislature made an exception for “the lawful use of an electronic tracking device by a law enforcement agency,” but it does not define the term lawful use. It did, however,“declare [...] that the right to privacy is fundamental in a free and civilized society and that the increasing use of electronic surveillance devices is eroding personal liberty. The Legislature declares that electronic tracking of a person’s location without that person’s knowledge violates that person’s reasonable expectation of privacy.”

What's messing with Texas death sentences?
Via CrimProf Blog, law professor David McCord from Drake University examined the causes of the decline in death sentences in Texas over the last couple of decades, noting that the decline in Texas death sentences has almost precisely mirrored the national decline over the same period:
During the peak five-year period for Texas death sentences—1992-1996—an average of 40 per year were pronounced; by contrast, in the most recent five-year period—2005-2009—an average of only 14 death sentences per year were handed down. The drop from 40 to 14 per year represents a 65% decline. In this, Texas has almost exactly mirrored and participated in the national trend: from an average of 312 death sentences per year nationwide in 1992-1996, to 119 per year for 2005-2009—a 62% decline.
So why has Texas witnessed fewer death sentences?
Analysis reveals five causes for the decline, with varying degrees of effect. Three causes are changes in the legal landscape: 1) fewer capital murder convictions—modest effect; 3) the advent of the life-without-parole (LWOP) alternative—large effect; 3) and the exemption of mentally retarded and juvenile defendants from death sentences—modest effect. The other two changes are at the county level beyond what can be accounted for by the three causes above: 4) the less-populous county opt-out—large effect; 5) the Harris County plunge—large effect.
Of these, the least discussed factor is the "less-populous county opt out." Smaller counties are seeking death sentences much less often than in the past, largely because of cost. Notes McCord, “Back in 2001 the Houston Chronicle reported that in smaller counties, '[County] commissioners have been known to second-guess prosecutors, raise property taxes, or suggest passing special bond issues to pay for death penalty trials.'”

    Friday, November 18, 2011

    On the Road to Damascus: The Conversion of John Bradley?

    Saul, Saul, why persecutest thou me?
    -Voice of Jesus speaking to St. Paul on the road to Damascus, Acts 9:4, KJV

    Just bizarre: Like Saul's conversion on the road to Damascus, Williamson County DA John Bradley claims to have suddenly seen the light after Michael Morton's DNA exoneration. He now plans to repent his sins and henceforth will walk the path of righteousness, we're asked to believe. Brandi Grissom at the Texas Tribune has a remarkable and lengthy story today featuring Bradley eating humble pie over the Michael Morton DNA exoneration. The article opens with the line, "John Bradley is a man evolving." I hope and pray that's true, but this "evolution" is also conveniently timed as the DA approaches a tough primary challenge.

    In the Trib story, Bradley describes his former vision of the prosecutor's role literally as that of a "predator": “I always felt like I was swimming among sharks,” he said. “And you had to defend yourself, and you have to be the same predator back.” I've never seen a prosecutor openly compare their role to a "predator," usually aiming such inflammatory language toward their adversaries (as Bradley more comfortably does in the first half of the quote). But it's a revealing statement, nonetheless.

    If Bradley-the-prosecutor cared little about building relations with the local defense bar, the story tells us, he certainly knew which relations to develop to advance his political career:
    As then DA Ken Anderson's first assistant, "Bradley developed a close relationship with his boss. They co-wrote two law books. Under Anderson, he began working with lawmakers at the Capitol, just a 30-minute drive south of Georgetown. When Gov. Rick Perry appointed Anderson as a state judge in 2002 he also appointed Bradley to take over as district attorney."
    So we've got a self-described "predator" who came to Williamson County from Houston with the mentality of a shark who treated the small pond full of perch and catfish in the defense bar essentially as prey while spending his spare time currying favor with officials in Williamson County and Austin. Largely thanks to those powerful patrons, particularly Judge Anderson and the Governor, until now Bradley has never faced a serious electoral challenge since Perry first appointed him. (He lost the only truly competitive race he's ever run, for the the Court of Criminal Appeals in the '90s.)

    Like Ken Anderson's second chair Mike Davis, Bradley attempted to shift blame and focus for the Morton fiasco onto Judge Anderson, whose situation increasingly appears untenable. (I'm quite looking forward to reading his forthcoming deposition.) But Anderson's failings don't excuse Bradley's own decisions to fight disclosure of exculpatory evidence and DNA testing that eventually exonerated Mr. Morton. Grissom provides a detailed recital of Bradley's own role in this mess for which there's no one to blame but him:
    In 2005, Morton began asking the state to test DNA evidence on a number of items, including a bloody blue bandana found near their home the day after the murder.

    Bradley tenaciously fought the requests. In the press, he berated the idea that DNA would lead to some “mystery killer.” And he said Morton’s lawyers were “grasping at straws.” ...

    Morton’s lawyers also asked Bradley, through public information requests, for investigative materials in the case. From the time of his conviction, Morton’s lawyers suspected that prosecutors had withheld key evidence that could have caused jurors to doubt his guilt. Bradley fought that request, too, arguing it would interfere with the DNA litigation.

    Eventually, Bradley lost that fight and turned over the files. Reports from the sheriff’s department showed that in 1987 investigators had several clues that pointed to someone other than Morton as the killer. There was a transcript in which Morton’s mother-in-law told a sheriff’s deputy that the couple’s 3-year-old son saw a “monster” with a big mustache attack his mother — and the monster wasn’t his father. There were reports that Morton’s credit card had been used and a check had been cashed with her forged signature days after her death. Morton’s lawyers, though, had seen none of that information during his trial. ...

    While the Willingham controversy continued in 2010, the Morton case was beginning to unravel. An appeals court ordered the prosecutor’s office to allow DNA testing on the bandana found near the murder scene. In June, the test results revealed that Christine Morton’s blood was mixed with the hair of a man who was not her husband. In August, a national DNA database search matched that DNA to a felon with a record in California....

    But it wasn’t just the DNA.

    The court in August also ordered the unsealing of a file that was supposed to contain all of the reports from the initial investigation of Morton’s murder. During a dispute in 1987 over evidence, the judge had ordered Anderson, the prosecutor, to provide him all of the investigator’s reports so that he could determine whether there was any information that could help Morton prove his innocence.

    When that file was opened two decades later, Bradley and Morton’s lawyers found a paltry six pages of police reports.

    Both Bradley and Morton’s lawyers knew that there were many more pages. Despite his order, the judge was not given the transcript that included the Mortons’ son’s description of the murder or the financial transactions that occurred after Morton’s death.

    For the defense attorneys, it seemed to confirm their suspicions: the prosecutor’s office had withheld critical information so they could secure a conviction. For Bradley, the development was a shocking revelation that raised serious questions about his former boss and friend.

    “I fully expected that that sealed file would contradict some pretty strong accusations,” Bradley said. “It didn’t.”
    In September, Travis County investigators linked the DNA from the Morton bandana to DNA found on a hair at the scene of the 1988 murder of Debra Masters Baker. The man whose DNA was on those items during the 1980s lived only blocks away from Baker and about 12 miles away from the Morton’s home.

    “It’s the kind of thing that happens only in Hollywood movies,” Bradley said. "I am still awed by the combination of circumstances that came together at the right time."
    Corroborating reports of a closed-door shouting match between the two, Grissom writes: "Because of the continuing investigation, Bradley won’t say whether he believes [Judge Ken] Anderson knowingly hid exculpatory evidence. But, for now, he said, their personal relationship is gone. 'It saddens me, but that’s the facts,' he said."

    For Grits, the supposed transformation in Bradley's thinking brings to mind not a Hollywood story but a biblical one: The Apostle Paul's miraculous conversion from persecutor of Christians to their champion. Your correspondent was quoted at the end of Grissom's article making that allusion: "Scott Henson, who writes the well-regarded criminal justice blog Grits for Breakfast, said Bradley could demonstrate his changed perspective by joining with innocence advocates to promote reforms to the Texas justice system. 'He’s got a long record,' Henson said. 'And it will take more than a few words of humility to get everyone to believe that he’s had some road to Damascus moment.'"

    Somewhat ironically, Bradley now says, "I consider Barry Scheck a good friend," so perhaps Barry can play Ananais to Bradley's St. Paul, causing the scales to fall from his eyes and leading him toward a path of righteousness. Any such optimism regarding Bradley's newly announced conversion, though, should for now remain measured. As Christ warned Saul on the road to Damascus, "it's hard for thee to kick against the pricks."

    MORE: See the transcript from the Trib's Bradley interview.

    AND MORE: From Wilco Watchdog. Also, from Jordan Smith at the Austin Chronicle, "Morton prosecutor wrote the book on crime." YET MORE: From Wilco Watchdog on John Bradley's "election transformation."

    Thursday, November 17, 2011

    Apologies, incompetence, tweaks and farewells

    Here are a few odds and ends that may interest Grits readers:

    Adios, Jerry y Suerte, Pete
    There's a nice, exeunt profile of Jerry Madden in the Plano Star-Courier after the House Corrections Chairman announced his retirement from the Legislature. And it turns out House Criminal Jurisprudence Chairman Pete Gallego left his seat to run for Congress. Both were fine legislators and I wish them well. MORE on Madden's departure from Rodger Jones at the Dallas News.

    Empty Apology
    Williamson County District Judge and former prosecutor Ken Anderson apologized for Michael Morton's false conviction that earned him 25 years in prison based on false allegations that Morton murdered his wife. If Anderson had included $4 with that apology perhaps Mr. Morton could have gotten himself a latte at Starbucks after the presser. Morton's second chair, Mike Davis, at his deposition said he was "shocked" by then-DA Anderson's failure to disclose exculpatory evidence. Wilco Watchdog rightly says Anderson's substance-free press conference was a (mostly successful) attempt at "pre-emptive damage control" before the transcript of his deposition is released next week.

    'Mental health facility? The county jail'
    At the Houston Chronicle, Patricia Kilday Hart asks "How did Texas law enforcement get in the mental health business?"

    Cameron constable merger?
    The Cameron County commissioners court voted to eliminate two constable positions in light of a budget crunch. "The consolidation still requires the approval of the U.S. Department of Justice."

    'Texas Tweakers'
    The Houston Press has a lengthy article on meth in Lufkin. The Wall Street Journal recently ran a fascinating story about the rise of "one pot" or "micro" meth labs, which use a small enough amount of pseudoephedrine to fly under the registries' radar.

    Texting bans hard to enforce
    Police told the Amarillo Traffic Commission that a ban on texting in school zones is hard to enforce because, predictably, officers have "difficulty distinguishing between a driver tapping a phone to make a call or text messages."

    Incompetent defendants 'held hostage'
    See an essay and new report (pdf) on a subject much discussed here at Grits: "defendants found to be incompetent [who] are being held hostage by the court," in particular a Baltimore-based mental health court, but the circumstances are far from unique.

    Prisoners online?
    Matt Kelley has a column promoting a group dedicated to "giving prisoners a voice online," which reminded me of Grits' email exchange with Michael Landauer at the Dallas News earlier this year titled "Putting iPhones behind bars." Notably, Facebook recently announced it will disable prisoners' accounts if they're updated while the prisoner is incarcerated, since by definition prisoners have no legal access and it's a violation of their user agreement if the page is updated by someone other than the account holder.

    Death to the Facilitators: Why Grits won't be "occupying" anything anytime soon

    With public support weakening, police today will roust Occupy Wall Street (OWS) protesters in multiple cities, most notably at the epicenter in New York. In general, Grits disapproves of police rousting protesters of whatever ilk, but since the OWS folks appear to have no goals and no endgame, I suppose it had to happen sooner or later.

    OWS has accomplished one amazing thing. They've re-framed how Americans talk about wealth inequality in a way that gives most Americans an "us" (the 99%) to align with. But there's a lot more to do to turn that important but potentially short-lived shift in public perception into tangible reform. Getting to actual change takes more than vague ideas and slogans. It requires leadership, decision making, and long-term movement-building and mass organizing.

    Sign at OWS protest, via the International Business Times
    The main reason I won't join the OWS movement any time soon has nothing to do with its lack of a well-defined agenda (there are plenty of opportunities for good work on their issue areas), but mainly with its lack of a well-defined leadership. Sun Tzu said millenia ago that formations dictate outcomes, and it's true. I vowed several years back never to join another political group that operates based on a "consensus" decision making process, which unfortunately is one of the hallmarks of the OWS movement. Indeed, I wrote a disgusted polemic several years ago articulating a detailed case against that bane of lefty movements and corporate retreats titled "Death to the Facilitators! In Favor of Roberts Rules of Order." The issues addressed in that unpublished essay are incredibly relevant IMO to why the OWS movement is losing steam as winter sets in: Their structure disavows leadership to the point that their decisionmaking processes become as frozen as Zuccotti Park campers in a snowstorm.

    Your correspondent has never been a big "joiner" when it comes to political groups, and I'm not much of a "little d" democrat. I'm as suspicious of the mob as I am of law enforcement. In general, I do not consider public camping a viable nor sustainable political tactic. When I hear a protester chant into a bullhorn, "This is what democracy looks like," I must (usually successfully) resist the urge to physically attack them. When sitting through any meeting involving a "facilitator," I harbor dark fantasies of hitting them over the head, covering them with a sack, and transporting them to a dimly lit warehouse where I'd hold a gun to their head and force them to read aloud from Robert's Rules of Order.

    So while I share many of the "Occupy Wall Street" critiques of society - particularly regarding the complicity of the financial sector in both a casino mentality and severing middle-class wage hikes from productivity gains - I think we're witnessing the limits of their tactics. Professional lobbyists and political campaigners are disdained as sell-outs by the drum-circle crowd, and Robert's Rules are considered antiquated and hierarchical compared to cool, supposedly more democratic "consensus" approach. But the OWS folks could learn a thing or sixty about the nuts and bolts of mass organizing from those who've organized successful mass movements in the past. For reasons presaged in my 2005 essay, reliance on a "consensus" decisionmaking structure doomed this effort before it ever got started. The OWS episode may have symbolic resonance going forward, but regrettably, in its current form, it's unlikely to have much structural impact on laws, regulations, or how Wall Street operates.

    Which devil do you want to dance with? Do conservatives prefer pot or national health care?

    This cracks me up: Mother Jones reports that the central arguments which will be considered by the US Supreme Court in favor of "Obamacare" hinge on the high court's past judicial finagling to justify federal regulation of medical marijuana. Wrote Stephanie Menciner:
    In both the DC Circuit and the 6th Circuit, the two appellate courts that have upheld the health care law, judges relied heavily on a 2005 Supreme Court ruling in Gonzalez v. Raich—a medical marijuana case. That case involved a California woman named Diane Monson who'd been growing marijuana in her backyard for medicinal reasons. (Monson was joined in the case by Angel Raich, a woman who'd also had her medicinal marijuana seized by federal agents.) The DEA swooped in one day and destroyed her plants, even though medical marijuana use in California is legal under state law. The high court found that the Commerce Clause gave Congress wide authority to regulate interstate commerce, even when that commerce takes place mostly in someone's backyard.

    Monson had claimed the DEA's action was unconstitutional and a violation of the Commerce Clause because federal agents were moving to prohibit noncommercial, intrastate cultivation of a plant intended for personal consumption. The pot wasn't crossing state lines—it wasn't even being sold at all. That, the plaintiffs believed, made the weed beyond the reach of the feds.

    The Supreme Court would have none of it. In a 6 to 3 decision, the court held that Congress could regulate backyard pot cultivation because it still constituted part of a very large, interstate market. It’s hard to see how the individual mandate doesn't square with that view of the law, given how enormous the national health care market is. Sixth Circuit Judge Jeffery Sutton, a George W. Bush nominee and a former clerk for Supreme Court Justice Antonin Scalia, wrote, "If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care."
    How's that for unintended consequences? If the US Supreme Court upholds the "individual mandate" in Obamacare, the Tea Party types will mainly have overreach by Big Government drug warriors to blame. The prevailing narrative has it that states rights were radically scaled back first by the Civil War, then Reconstruction and later the destruction of Jim Crow, all of which is true. But less frequently discussed is how, after that, the remnants of states rights were all but annihilated over the ensuing four decades in the name of the drug war, which is why they now are nonexistent when the same mechanisms used to justify the drug war are trotted out to impose national healthcare.

    If movement conservatives had to choose, I wonder, would they prefer to end Obamacare but allow Californians to grow pot in their back yards, or would the urgent necessity to regulate medical marijuana justify living with federalized healthcare and mandatory coverage? Which devil do you want to dance with? Like many constitutional liberties, states rights, or its abrogation, is a two-edged sword.