Saturday, March 31, 2012

Blackwell: Texas State Bar 'not set up to oversee prosecutors'

The Dallas Observer has an interview with Austin attorney Betty Blackwell who is a recent, former chair of the state bar disciplinary committee and participated on a panel discussion Thursday at the UT law school on prosecutorial oversight. These answers, I thought, were particularly enlightening:
Have you seen awareness of prosecutorial misconduct change over the years?

\I will tell you DNA and the fabulous work done by the Dallas D.A.'s office has really brought this to the forefront because Dallas was so conscientious about saving all of its biological material that its office has had the most exonerations. It has really come very much to the forefront that there are innocent people in prison.

Why is it that almost no prosecutors are disciplined for procedural errors or withholding evidence?

It's because the State Bar system is set up on a complaint-driven system. And one of the things we talked about at that symposium yesterday was getting judges to file complaints when they see this, getting prosecutors in their own office to file complaints against people in their own office that they've seen do this, would help the State Bar discipline these people.

And then the other issue as to why people haven't been disciplined, particularly about Brady violations, is that there is a four-year statute of limitations on all grievances. Brady never gets discovered within that four year period. So if you go online and look at Anthony Graves exoneration, and Charles Sebesta has a website -- he's the D.A. that convicted Anthony and put him on death row even though he was totally innocent. Charles Sebesta holds up the letter from the State Bar saying that they exonerated him. Well, you can read the letter. It says the statute of limitations has expired. And that's the issue. Most of these complaints on Brady cannot be brought to the Bar in a timely manner.

And so, one of the suggestions is to eliminate that statute of limitations so that the Bar can investigate these cases even though it's been many many years since it happened. There should be no statute of limitations.
She added that "the State Bar is really not set up to oversee prosecutors because we have to receive complaints in a timely manner. Well, the Bar Association can suspend these lawyers if they violate Brady -- well, not if they're not told about it, and not if they're not told about it within the statute of limitations. So they [yesterday's speakers] brought those [issues] to the public, to say the Supreme Court relied on some safeguards that are just not working."

Of Connick v. Thompson she opined that "We all believe that's an unjust opinion."

See the full interview for more.

'Released but not exonerated'

Texas Monthly's Michael Hall has a feature in the New York Times today on the Kerry Max Cook case.

Hasta la vista, Carl Reynolds

Congratulations to Carl Reynolds on his retirement this week from the Texas Office of Court Administration after 27 years in state government. I saw him yesterday at the capitol at an event on pretrial detention during the final hours of his tenure at the OCA, and he looked like the cat who ate the canary. He'll be moving on to work with Tony Fabelo, he told me, at the Council of State Governments. A former TDCJ general counsel, Reynolds represents a small mountain of institutional memory on obscure criminal justice topics exiting the premises that few other Texans can replicate.

Carl will still be around, I'm sure. From what I can tell, he mostly travels by bicycle so he can't get far. ;) And I hope he continues writing at his blog Courtex. Perhaps he'll even enjoy writing there more without the yoke of public duties restricting his opinions. But wherever life's journeys take him, Grits wishes him well. He'll be missed in state government.

McLennan Commissioners may end speculative private prison partnership

Bob Libal at Texas Prison Bidness pointed out a local TV news story out of Waco focused on the fallout from a debt-trap contract jail deal with private prison company Community Education Centers (CEC) that looms over the county budget like a financial Sword of Damocles. County commissioners are considering rescinding their contract with CEC - just as Liberty County is now contemplating after their jail population lowered substantially - because of a lack of available contracts to fill hundreds of unneeded jail beds built as part of an entrepreneurial partnership with the company.

Today Texas jails overall are experiencing substantial vacancy rates in part because of a wave of speculative building by counties since the turn of the century. Statewide, according to the Commission on Jail Standards, about a third of county jail beds were empty as of March 1. Jail populations are plummeting for reasons no one can entirely explain. So many Texas counties that bet on the come - overbuilding their jails hoping to cash in on contract incarceration through public-private partnerships like this one - now must eat their losses, or rather pass them on to taxpayers. And that's where McLennan County Commissioners find themselves today.

TPB adds that "Critiques of CEC's handling of immigration detainees continued [recently] as New York University and New Jersey immigrant rights groups issued a report claiming the company's Delaney Hall facility does not 'fully comply with ICE standards, the report documents problems with everything from access to legal assistance and worship services to adequate health care, food and other basic services for detainees.' (Washington Post, March 23)"

In other private prison news, reports Yahoo! Finance, "SunTrust downgraded Corrections Corp citing expectations for mixed news regarding state budgets and lower occupancy at some facilities." Apparently they don't expect states to take the company up on its recent buy-leaseback offer. Grits has argued that Corrections Corp and, even more so, its main competitor the GEO Group, are too overloaded with debt to justify rosy financial projections, particularly if the incarceration bubble continues to burst.

Friday, March 30, 2012

Showdown brewing between Travis judge, state health agency over competency restoration

Disappointing, but not unexpected: The State of Texas says it cannot comply with Judge Orlinda Naranjo's court order requiring state hospitals to accept pretrial defendants declared incompetent by the courts within 21 days, and also asked the judge herself to reconsider her decision, reports Andrea Ball at the Austin Statesman ("State fights order to move prisoners requiring psychiatric care into hospitals," March 29):
State officials say they can't obey a court order forcing them to move more than 150 mentally incompetent prisoners to psychiatric hospitals by June 1 because they don't have enough space, staff or money to do so.

The Texas attorney general's office has asked Austin-based state District Judge Orlinda Naranjo to review her January decision forcing the Department of State Health Services to start moving all current "forensic commitments" to state psychiatric hospitals by June 1. All such prisoners who arrive after that date would have to be moved to a psychiatric hospital within 21 days of a judge's order. Forensic patients are people accused of crimes who have been deemed incompetent to stand trial because of mental illness.
Complying with the court order would cost between $39 million and $55.2 million, according to a motion for a new trial filed by the attorney general's office this month.

"The short timelines set forth in the court's order makes it physically, fiscally and logistically impossible for DSHS to comply and indicates a lack of appreciation for the magnitude of the task and the complications inherent in implementing the terms of the order," the state wrote in its motion.

The attorney general has also appealed the ruling with the state's 3rd Court of Appeals.
See prior, related Grits posts:

Michael Morton, John Thompson highlight prosecutor misconduct forum

It was a privilege to meet exonerees Michael Morton and John Thompson in person at yesterday's UT law school event on prosecutorial oversight. It's an incredible honor that my job with the Innocence Project of Texas affords me the chance to meet so many exonerees, and I'm always especially humbled by those like Thompson who've endured this sort of life tragedy and react by attempting to improve the system that betrayed him. He struck me as an energetic reformer and a good guy.

Though both men have endured unspeakable nightmares, in Mr. Thompson's case the courts added insult to injury. Louisiana doesn't have a compensation law for exonerees like we passed in Texas. So after he was framed by the New Orleans DA's office, spent 18 years in prison (14 on death row), then was exonerated thanks to DNA and exculpatory evidence concealed at his first trial, Mr. Thompson filed a federal civil rights suit, winning a $14 million verdict which was affirmed by the Fifth Circuit, only to have it overturned by the US Supreme Court in Connick v. Thompson last year. (See Prof. Jennifer Laurin's description for more detail.) That compensation law is one thing Texas does right compared to other states.

The event was informative, but I also agree with local attorney Don Dickson who sat next to me and wrote on Facebook that "The presentation itself was kinda discouraging. It's very clear that the difficulty of addressing prosecutorial misconduct is surpassed only by the difficulty in discovering it in the first place." That's particularly true of so-called Brady violations, or failures to disclose exculpatory evidence, where the defense and judges cannot as a practical matter know what prosecutors have hidden from them. Of course, I do think there are things that can be done legislatively to retard if not eliminate prosecutorial misconduct, but in the wake of Connick v. Thompson, the existing landscape on oversight of prosecutors is pretty bleak.

I'll write up my own notes from the event over the weekend, but here's some of the initial MSM coverage from yesterday's forum, most of which so far has focused on Michael Morton's case as opposed to the broader issues, as well as a two-part interview with Michael Morton in the Austin Statesman:
The Texas Tribune and the Austin Chronicle should also have coverage before long, since Brandi Grissom and Jordan Smith were both at the event; I'll link to those when they're up.

Thursday, March 29, 2012

Study: Prosecutor misconduct in Texas rarely disciplined

The Texas Tribune has published some of the preliminary data from a report to be released later today (at the forum previewed by Grits below) analyzing Texas cases where appellate courts identified examples of prosecutorial misconduct but the state bar failed to discipline the attorneys. The item by Brandi Grisssom opens:
In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.

None of those prosecutors has ever been disciplined.

“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states. ...
In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.
The McEachern case is certainly the only example I know of where a prosecutor has been disciplined by the state bar since I've been paying attention to such things (the actions that led to his probated suspension took place well before the study period), so I'm not surprised this research turned up no others. Those 91 cases, too, are just a sample identified from 2004-2008, Grits was told by one the study's collaborators, and not a comprehensive list. As Prof. Laurin pointed out, the research "explores documented court findings of prosecutorial error and there are many ways in which documented court findings, to the extent they’re publicly available, are not great ways of getting at ... how widespread of a problem there is." Still, it's notable if unsurprising that the state bar took action in none of the 91 cases identified during the period studied.

MORE: Find an excerpt from the press release below the jump:

Transcript of interview with Prof. Jennifer Laurin on prosecutorial oversight

Below the jump, find the transcript of my interview with Assistant Professor Jennifer Laurin from the UT law school, who spoke with Grits on Tuesday about prosecutorial oversight in anticipation of a panel discussion at 1:30 p.m. CDT today at the UT law school, which will be webcast live on this dedicated site. In it she describes the Supreme Court decision last term in Connick v. Thompson and why it's important, previews new research on prosecutor misconduct that will be released at the event, suggests potential areas for improving prosecutorial oversight, details who will be on today's panels and what will be discussed, and talks a little about her own academic writing on Connick. Here's the text of my conversation with Prof. Laurin:

'Veterans Defender Resource' from Indigent Defense Commission

Received this press release from the Texas Indigent Defense Commission that may interest those concerned with specialty courts: 

AUSTIN –The Texas Indigent Defense Commission published the Veterans Defender Resource for county and court officials who are interested in the creation of a new Veterans Court or enhancing their existing problem solving courts with the addition of a defender component. A law recently passed by the Texas legislature authorized counties to establish a Veterans Courts. According to Senator Leticia Van de Putte, “Senator Rodney Ellis and I authored legislation to create Veterans Courts in Texas counties because we saw the need to recognize the unique challenges faced by service members who have endured the stresses of combat. Our war fighters have sacrificed so much for us; they deserve special consideration in helping deal with the complexities within the criminal justice and legal system.”
Defendants are eligible to participate in a veterans court program only if the attorney representing the state consents to the defendant's participation in the program and if the court in which the criminal case is pending finds that the defendant is a veteran or current member of the United States armed forces, including a member of the reserves, national guard, or state guard; and suffers from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, that resulted from the defendant's military service in a combat zone or other similar hazardous duty area and materially affected the defendant's criminal conduct at issue in the case.
The Texas Indigent Defense Commission provides an array of support to counties that wish to implement initiatives that will improve access to the right to counsel. The Veterans Defender Resource provides information about how counties can access this support through the Commission’s discretionary grant programs. Additionally, the Resource includes a directory of the currently operating Veterans Courts programs throughout the state. Many of the judges who have chosen to run Veterans Courts may be valuable sources of wisdom and advice as a new court is formed. According to Judge Brent Carr of Tarrant County, “The veteran’s court has been an incredible experience.  This program is not a gift to a veteran, it is an opportunity.  By completing a professionally designed course of therapy and treatment, the veteran has the opportunity to correct destructive behavior and have his or her good name restored.  This is good for the veteran, the veteran’s family, and the community.  It’s the least we can do.”
The Veterans Defender Resource is available on the Commission’s website (pdf).

Wednesday, March 28, 2012

SCOTUS to consider what training, credentials needed for drug-dog alert probable cause

The US Supreme Court agreed this week to hear arguments regarding a case from the Florida Supreme Court to decide what level of training, certification, etc., is sufficient for a narcotics dog's alert to count as probable cause. The Florida Supreme Court held the dog in Florida v. Harris was not sufficiently credentialed, so if SCOTUS doesn't like the ruling, there's a risk they took it up to overturn it.

The opinion out of Florida is fascinating, and they appear to have caught the state in a Catch-22: "The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle."

The Florida court declined "to adopt the view of the First, Fourth, and Fifth Districts" because it would "place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability — evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case." Absent such documentation, "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person."

Bottom line, if I'm reading the opinion correctly, the dog in Harris had been "trained" and "certified," but the department kept no ongoing training records and considered their hit-rate in the field meaningless and so didn't record it. Thus the court ruled that merely being trained and certified, at some point in time by somebody, is not enough to judge a dog reliable without more documentation. "Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog's alert," said the Flordia court, "the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog's reliability."

How many K-9 handlers keep training and field records recording accuracy rates, and what proportion of US drug dogs might this case affect if SCOTUS accepts the Florida Supreme Court's view? Who knows? Or maybe they just took the case up to bench slap the Florida high court and bring it in line with the more permissive federal districts?

This is an area of forensics - used on the front end for probable cause as opposed to the back end at trial - that deserves much more scrutiny. Dog alerts in other contexts have been deemed unreliable. As the court noted, "there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs."

I'm hardly sanguine the US Supreme Court will agree with their brethren jurists from the Sunshine State, but Grits welcomes the debate. Even if they strike down the Florida ruling, the case will be an opportunity for a belated discussion over what dog handlers should be doing with regards to training and record keeping compared to what often happens in the field.

MORE: See an article Radley Balko wrote last year on the reliability of drug dog alerts and how humans interpret them.

AND MORE: See a discussion of drug dogs on the Texas prosecutor association user forum in which Williamson County DA John Bradley confidently predicts that "SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial." Tarrant County prosecutor David Curl, though, noted that the Florida court emphasized that "evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found."

FURTHER THOUGHTS: We don't know which justices wanted to hear the case, so it's hard to say before oral arguments whether Harris will be more about reinforcing the court's decision in Caballes giving carte blanche for drug sniffing dogs, or more about policing drug dogs' misuse in light of a greater awareness of forensic errors. I"m not a lawyer, but as it's been explained to me, "probable cause" generally means "more likely than not," or above a 50% likelihood. ("Reasonable suspicion" is an even lower standard.) So if a drug dog finds contraband only 45% of the time it alerts - to pull a number out of the air - would that constitute "probable cause," or must the dog's reliability be higher? And what happens when a law enforcement agency avoids that question simply by failing to keep records? Those are the questions Grits hopes the court will focus on when it takes up Florida v. Harris.

The fundamental role of states in crime lab regulation

Apropos of recent Grits discussions of crime lab accreditation and oversight, reader Ryan Goldstein alerts me to his student note in the Texas Law Review titled "Improving Forensic Science Through State Oversight" (pdf).

Goldstein says forensic science faces two core problems: "questionable validity and questionable reliability." The "questionable validity" speaks to fundamental concerns whether the scientific basis underlying many forensic practices is truly sound: E.g., whether tool marks, ballistic matches or tire track comparisons should be considered dispositive identification in criminal courtrooms? Goldstein's suggestions for a state-centered regulatory structure do not speak to "validity" questions, and IMO it probably is a federal role to fund the sort of research needed to move that ball forward in the way that science, for example, has improved eyewitness ID techniques and arson investigations over the last two decades.

On questions of "reliability," though, where the underlying science is valid, Goldstein rightly calls state regulation of crime labs "an ignored resource." States inherently have a role regulating forensic science because forensic evidence is most often used in state courts. So in each state, either the legislature does the regulating, it hands off regulation authority to some executive-branch entity, or else the courts must do it themselves on an ad hoc basis. But somebody at the state level must do it, and Goldstein points out that states are "well positioned to implement reforms ... that target reliability." He argues that:
The NAS Report charged the federal government with implementing its recommendations. But, as mentioned above, this ignores the direct control that states have over their laboratories and criminal justice systems. Furthermore, federal reform requires uniformity and ignores the benefits of state experimentation. It ignores geographic differences in values and the differences in the ways that states administer their systems of criminal justice and criminal investigation. Finally, with the current political climate in Washington, federal reform may be difficult to pass. And even if it were to pass, it may reflect a compromise between differing interests rather than the most robust oversight possible.
Goldstein thinks mandatory accreditation is insufficient (as do I) in part because "accreditation only addresses issues of compliance with existing scientific practices. It does not address the validity of the underlying science, identify cases of technician negligence or fraud, remedy past injustices, or necessarily advocate for the best possible laboratory practices." For those issues, he said, states have turned either to independent investigations in high-profile cases, a tactic made more attractive by the availability of federal funds for the purpose in recent years, or else some type of oversight board or independent investigative body like Texas' Forensic Science Commission or the North Carolina's Innocence Commission. Each has pros and cons, but these are all examples of state-level experimentation through which we're learning important overall lessons about what crime lab regulation should look like, argues Goldstein.

Prof. Paul Gianneli has a response (pdf) to this piece in the same issue of the Texas Law Review pointing out the need for federal support on improving forensic "validity" while agreeing that "The states are indeed responsible for their crimes laboratories, and it is a responsibility that they have often neglected." Meanwhile. CrimProf blog points to another response (pdf) by Jessica Gabel and Ashley Champion arguing that centralized federal oversight would be more "practical." Gianelli, though, notes the federal and state approaches are not mutually exclusive: "The proposed federal legislation ... would not preempt state innovation; it would fund accreditation, not require it. This funding, however, may never materialize, and the states (as Mr. Goldstein notes) are independently obligated to regulate their crime labs."

On one, key point, I wholeheartedly, vociferously disagree with Mr. Goldstein when he writes that "the NAS Report‘s call for the removal of laboratories from law enforcement is infeasible and unlikely to receive political support." That's a political assessment, not a data-driven one, and in my experience it's deeply flawed. The political class generally gets why it's a conflict for police to control crime labs, they just don't have a great set of options available to them or, at the moment, extra resources. But politicians in Houston, e.g., which is the central example in Goldstein's essay, mostly pay lip service to the idea of removing the crime lab out from under law enforcement, though the devil is of course in the details. Still, I've neither seen nor heard of opposition in the political sphere so intense that it makes me think the goal of separating crime lab management from law enforcement is categorically impossible. Certainly, can't never could.

That said, in all, this student note was a worthy contribution, locating the cutting edge of a debate that's presently very much a moving target. This post portrayed just a fraction of what's in these three pieces, so those with more than a passing interest in such matters should read them for yourselves.

Prof. Jennifer Laurin previews forum on prosecutorial oversight

Tomorrow afternoon at the UT law school there will be a 2-hour panel discussion on prosecutorial oversight, part of a "national conversation" promoted by the national Innocence Project and the Veritas Initiative in the wake of the Supreme Court's Connick v. Thompson decision affirming that prosecutors have "absolute immunity" for on-the-job misconduct. Assistant Professor Jennifer Laurin will be moderating the event, and yesterday I got a chance to sit down with her to discuss the issues in this Grits for Breakfast podcast/interview. (See the transcript here.)

Laurin describes Connick v. Thompson in some detail, and explains why the subject merits such a "national conversation." She then gives a rundown of the heavy hitting lineup on the dais, and discusses broadly some of the possible approaches or potential "sites" for reform that could be considered. And we discuss Laurin's own writing on Connick v. Thompson, about which she recently authored a chapter in a manual on federal civil rights litigation. She's very knowledgeable and we could easily have spoken about the subject a lot longer (the interview runs a little over 20 minutes).

The event itself will be broadcast live online on this dedicated website for those who can't attend. Here's a copy of the press release:
Prosecutorial Oversight: A national dialogue in the wake of Connick v. Thompson

Thursday, March 29, 2012
1:30 to 3:30 PM
Francis Auditorium
University of Texas School of Law – Austin, Texas

Please join us for the Texas stop of a national tour to address the issue of prosecutorial oversight.  The Supreme Court’s recent decision in Connick v. Thompson rejected civil liability for Brady violations in lieu of what it took to be effective status quo mechanisms for training, supervising, and remediating prosecutorial disclosure issues. A discussion followed by Q&A will address existing oversight mechanisms in Texas, assess their adequacy, and explore possible avenues of reform.

Speakers include:
  • Betty Blackwell – Attorney, former chair of the Texas Commission for Lawyer Discipline
  • Jennifer Laurin (moderator) – Assistant Professor, University of Texas School of Law
  • Jim Leitner  - First Assistant District Attorney, Harris County
  • Michael Morton – Freed after 25 years in prison in Texas following DNA exoneration and revelation of concealed exculpatory evidence
  • Hon. Bob Perkins (Ret.) – Former judge, 331st District Court, Travis County
  • Professor Robert Schuwerk – Professor, University of Houston Law Center, author of leading treatise on Texas rules of professional conduct
  • John Thompson – Founder and Director of Resurrection After Exoneration and Voices of Innocence and plaintiff in Thompson v. Connick, imprisoned in Louisiana for 18 years (14 on death row), freed after revelation of concealed exculpatory evidence
  • Emily West – Research Director, The Innocence Project

Tuesday, March 27, 2012

Public intoxication, hypothetical harms, and 'contempt of badge'

The Austin Statesman today published a story ("Public intoxication laws too fuzzy, critics say," March 27) questioning Austin PD's alleged use of public intoxication charges as "contempt of badge" and detailing the loosey goosey standards under which the law is enforced. "I can't believe the haphazardness with which they're arresting people for public intoxication," former DA candidate Mindy Montford told the paper. "You'd be hard-pressed in the penal code to find another crime as subjective as this one."
Montford said most offenses in the Texas penal code include some stipulations about a suspect's mental state, such as whether they acted recklessly or intentionally. They also put the burden of proving the offense's veracity on prosecutors.

But the public intoxication charge has none of this, Montford said, especially when compared with the state's laws against driving while intoxicated. "When you compare the two, the amount of evidence that goes into a DWI" is massive, she said, such as a field sobriety test and breath or blood alcohol tests. "There's none that goes into P.I."

Attorney David Gonzalez said he has represented college students who drove to the entertainment district downtown, had some drinks, decided it was best not to drive and then were arrested for public intoxication while walking home.

Gonzalez said the public intoxication charge is "the only law on the books that allows hypotheticals."

"Hypothetically, they could trip and fall down, so they're a danger to themselves or others," he said. In all other crimes, from theft to murder, a criminal act has to have been committed to justify a charge, he said.

While public intoxication is only a class C misdemeanor, meaning it is punishable by a fine not to exceed $500, it is also an arrestable offense and one that could cause problems at job interviews and other situations, attorneys said.
The offense accounts for a significant number of arrests for a Class C misdemeanor. "Austin police made about 5,600 public intoxication arrests last year, according to data obtained by the American-Statesman through an Texas Public Information Act request. In the past five years, the department has typically made between 5,500 and 6,000 arrests annually, except in 2009 when that number rose to 6,730 arrests, according to the data."

Michael Morton speaking out

The Texas Tribune and KXAN news in Austin each have interviews with Michael Morton, who's making the rounds in the media, apparently, after breaking his cherry with a national splash on 60 Minutes Sunday night.
For those in Austin, Mr. Morton will be speaking on a panel Thursday at the UT law school at 1:30 p.m. about prosecutorial misconduct (see more detail in the second half of this post), which will be his first public speaking engagement to my knowledge since his exoneration. The event is part of a "national dialogue in the wake of Connick v. Thompson," an effort launched earlier this year by the national Innocence Project and the Veritas Initiative. See more detail at a website created to support this public education effort.

Monday, March 26, 2012

'Crashing the system,' crime lab follies, and a route off death row

Here are a few odds and ends for you that didn't make it into their own, full Grits posts but still merit readers' attention:

'New doubts arise in case surrounding 1985 murder'
Brandi Grissom at the Texas Tribune examines the possibility that a man recently convicted of a gruesome 1985 murder in a prominent Austin cold case may be innocent and gives voice to calls for DNA testing. The defense has posited a theory that Mark Norwood, the man accused of killing Michael Morton's wife Christine as well as another Austin woman, was responsible for the murders and asked for any DNA evidence from the scene to be tested to see if it matched him or anyone else in the CODIS database. The Travis County prosecutor in the case, incidentally, is Mark Pryor who blogs at DA Confidential.

'Crime is down and so is the cost of fighting it' 
So says the Texas Public Policy Foundation's Marc Levin in a recent Houston Chronicle op ed.

Walker commissioners may bypass voters on jail building
In Huntsville, Walker County Commissioners are considering building a new jail with certificates of obligation so they don't have to go to the voters for approval. Readers may recall that Harris County voters rejected a new jail several years ago and Smith County voters said "no" three times before persistence finally paid off for Tyler jail builders. So I understand why they'd want to bypass the voters. But they shouldn't.

Retrials provide route off death row
Brian Rogers at the Houston Chronicle has a story on the recent upsurge of retrials ordered in Harris County death penalty cases because of flawed jury instructions, most of which resulted in life sentences. Said my ol' college pal Danalynn Recer, "We structure the plea in a way that there's not ever going to be parole."

Crime Lab Follies: Empire State edition
Having written recently about the shortcomings of crime lab accreditation, Grits was interested to see this item from Paul Kennedy at The Defense Rests describing the meltdown in oversight at the Nassau County (Long Island) crime lab in New York, which was closed in 2011 "due to grave concerns about the integrity of testing being performed at the lab," according to a massive but revealing report on the subject the NY Office of Inspector General. More from Kennedy on lab accreditation here.

'Crashing the system'?
Michelle Alexander recently had an op ed in the New York Times calling for defendants to organize and choose en masse to take their cases to trial in order to "crash the system," declaring that when a friend mentioned the idea she was so stunned she found herself "speechless." She asks: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?” The short answer is that if you were able to organize hundreds of thousands of people you could change the laws at the Legislature and wouldn't need to crash the system! So organize them, already, if it's that easy! See a prosecutor's reaction to the suggestion. MORE: See a biting response from A Public Defender.

'Life, With Dementia'

Here's a notable New York Times feature and editorial on some of the unique healthcare problems facing the growing cadre of senior-citizen inmates in American prisons with dementia, a phenomenon resulting from long prison sentences meted out over the last several decades:
Here's a summary tidbit from the main story:
Dementia in prison is an underreported but fast-growing phenomenon, one that many prisons are desperately unprepared to handle. It is an unforeseen consequence of get-tough-on-crime policies — long sentences that have created a large population of aging prisoners. About 10 percent of the 1.6 million inmates in America’s prisons are serving life sentences; another 11 percent are serving over 20 years.

And more older people are being sent to prison. In 2010, 9,560 people 55 and older were sentenced, more than twice as many as in 1995. In that same period, inmates 55 and older almost quadrupled, to nearly 125,000, a Human Rights Watch report found.
The editorial puts it even more starkly, echoing themes regular Grits readers will recognize: "According to a report from Human Rights Watch, in 2010 roughly 125,000 of the nation’s 1.5 million inmates were 55 years of age and over. This represented a 282 percent increase between 1995 and 2010, compared with a 42 percent increase in the overall inmate population. If the elderly inmate population keeps growing at the current rate, as is likely, the prison system could soon find itself overwhelmed with chronic medical needs."

Most of the main story is about a California program that trains inmates with good behavior records to provide care for inmates with dementia, Alzheimer's, or other such disabilities. But Texas and other high-incarceration states face similar dynamics. Older prisoners are both one of the fastest growing segments of the inmate population and among the most costly, mainly because of high healthcare expenses.

Just as society increasingly uses prisons and jails in lieu of mental hospitals, they're beginning to also replace nursing home beds for a small but rapidly growing class of elderly prisoners. Over the next five to ten years Grits expects this to become one of the central challenges of modern prison management, not to mention a source of increasingly poignant moral conundrums for the legislature and the parole board. There are no easy answers for the questions that arise when the end of life nears, either for families when tasked with such decisions or the state when acting in loco parentis.

60 Minutes interviews Michael Morton

"It's not every day that a convicted murderer clears his name and then returns to court to argue that his prosecutor should be prosecuted," correspondent Lara Logan said at the opening of 60 Minutes' segment last night featuring Michael Morton's first media interview since his exoneration. See the clip (there's a ad at the beginning of each):

And here's an additional online discussion from the 60 Minutes reporter and producers:

The account of Morton's relationship with his son is one of the most heartbreaking you'll ever encounter, like some epic, tragic Russia novel with a surprise, wholly Americanized happy ending - like a "present from heaven," as Morton himself put it. Morton's is an amazing tale. Once again, congrats to him and everyone involved over the years in fighting the Williamson County DA's office to free him.

RELATED: Reacting to the story, Wilco Watchdog says that "Ken Anderson put Morton in prison and John Bradley kept him there." Bradley wasn't mentioned in the 60 Minutes piece, but there's little doubt the issue looms large over his re-election campaign, for the reasons articulated by the Watchdog, and this national press coverage won't help matters. In a sense, it may benefit Bradley that the redistricting battle forced the state to push back its primaries, or Williamson County voters would be going to the polls next week with the 60 Minutes story fresh in their minds. OTOH, it's also possible the longer timeline will give Bradley's opponent a chance to make the associations among voters between Bradley and the Morton case that 60 Minutes left out. We won't know until May how this may impact the Williamson DA's race, but the incumbent must be worried.

ALSO: In the second clip embedded above, the producer said they interviewed Michael Morton for nearly three hours in preparation for this story, with just a few minutes broadcast during this segment. This was Morton's first media interview since his release last fall, so I hope CBS goes ahead and puts more of the extended interview online. That's historic material.

AND MORE: Texas Monthly's Paul Burka has a bloggerly assessment of the Williamson County DA's race in the wake of 60 Minutes' coverage.

Sunday, March 25, 2012

Judicial Conduct Commission facing Sunset review in April

Grits hasn't had a chance to read the Sunset Advisory Commission report (pdf) on the State Commission on Judicial Conduct, nor the agency response (pdf), nor the agency's self-evaluation (pdf), but I at least wanted to give readers the links as well as point out bloggerly critiques at Texas Watchdog and the Burnt Orange Report, both of which fault the agency in particular for a lack of transparency. A public hearing April 10 will focus on the agency (with TDCJ and correctional managed health care up in June, see their meeting schedule [pdf]).

One key Sunset recommendation for the Judicial Conduct Commission, the first one, in fact, harks back to the Sharon Keller fiasco where the commission imposed what turned out to be an illegal sanction after adopting findings of fact critical of the judge's decision making and forthcomingness with her fellow judges in the whole "We Close At 5" brouhaha. Sunset Staff recommended Texas adopt a "Constitutional Amendment," to "Authorize the Commission to use its full range of sanctions following formal proceedings."

Another key problem identified by Sunset staff was also readily apparent in the Keller fiasco, in retrospect: "Inconsistencies Between Its Statute and Rules Create the Potential for Litigation and Inefficiencies in the Commission's Operation." Indeed, discussions by commissioners during that episode made it clear this was an ongoing issue that arises for them frequently, whereas the first recommendation was more or less unique to Keller's situation.

Other recommendations and critiques, say the two blog posts, related to a lack of transparency even (perhaps particularly) with Sunset staff. I'd have to read the reports themselves to say more, but anyone interested in participating in the agency's Sunset process should find all they need in the above-linked documents to get engaged.

Gitting tuffer on plea deals boosting McLennan County Jail costs

The changing of the guard at the McLennan DA's Office (Waco) in 2010 appears to have resulted in an overcrowded, over-budget county jail as the new District Attorney rejects more plea deals, forcing defendants to wait in jail longer, judging from a Waco Tribune Herald report this week ("McLennan County Sheriff out of money for prisoner overflow," March 21, behind paywall). The Sheriff has requested emergency funds for the jail, blaming "the rapid spending on an unexpected and prolonged increase in the county’s jail population." Reported the Trib:
[Sheriff's Captain Paul] Wash said when the sheriff’s office prepared its current budget last spring, the county on average was housing 30 to 40 inmates each day at Harwell.

But by the time the commissioners court approved the budget in August, the inmate population at the county jail started climbing. In the fall months, the sheriff’s office sent an average of 175 to 200 inmates to Harwell [a privately run facility where the county must pay by the head].

The county had 130 inmates at Harwell as of midnight Monday. Plemons said the county jail had only 28 vacant inmate beds.
The Sheriff's office couldn't give a definitive cause, citing classification issues (male/female, violent, non-violent) sometimes creating inefficient allocations. But Wash said the main problem is quantitatively more inmates housed at the jail, stemming either from "an increase in arrests made by law enforcement agencies throughout the county, or [else] fewer inmates are being offered or accepting plea deals, thus staying in jail longer while awaiting trial," the paper reported.

The data isn't available yet (to me, anyway) to tell for sure, but Grits believes DA decision making and policy changes are the more likely cause of extra inmates than increased arrests. After all, crime statewide has been declining and Waco is among the cities that saw a massive drop in traffic enforcement by local police in 2011, with municipal courts processing just under 14,000 traffic cases in 2011 compared to 19,582 in 2010. That's more than a 28% drop. Since so many arrests on other charges originate at traffic stops, it seems unlikely there were significantly more arrests in McLennan County in 2011 with traffic tickets down that much and overall crime trending downward. Indeed, just last year the same reporter was lamenting declining inmate numbers at the jail and exploring the cause of lower crime rates to explain them.

Instead, it's far more likely changes in plea bargaining stances by rookie DA Abel Reyna account for the biggest difference. There was a report just last month about  the DA's office implementing a strict policy on DWIs that caused Reyna's former law partner Damon Reed to predict rising costs for the county:
Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.
Now we see it's not just court dockets clogged as a result of this and similar plea-bargain policies but also the county jail. If the DA is negotiating fewer plea deals with DWI (and presumably other classes of) defendants, no wonder the jail population is rising! Moreover, the timing of Waco's jail population rise coincides roughly with the new DA's changes in plea bargaining policies.

In fact, the McLennan DA's example is almost a case study of tuff-on-crime policies equating directly to getting tuff on the taxpayers, with little identifiable public safety benefit. Jails and criminal justice generally are behemoths in county budgets, and small policy changes can have big budget consequences. Whether county commissioners, reporters or for that matter McLennan County voters make the connection is another matter. But those who want to avoid county tax hikes should dislike Reyna's new plea policies based on budget considerations unless a stronger case can be made that increased pretrial detention boosts public safety. In most instances, certainly on routine DWIs, the cost-benefit analysis just isn't there to support it.

Saturday, March 24, 2012

DA race highlights Travis diversion program populated mainly by better-off defendants

Grits is thankful for Travis County's contested DA primary if only because it means we get some actual journalism on otherwise obscure courthouse subjects when the challenger attacks the  incumbent, and vice versa. In that vein, Steven Kreytak at the Austin Statesman has a story today titled, "Blacks, poor underrepresented in Travis County second chance program," March 24) which opens:
Defendants who are black or unable to hire their own lawyers have been underrepresented in a Travis County district attorney's office program that gives select felony defendants a rare chance to escape their charges without a criminal record, according to an Austin American-Statesman analysis.

Travis County District Attorney Rosemary Lehmberg said she is concerned about the imbalance and hopes to further diversify participation in her pretrial diversion program, which she started in 2010, with more education for defense lawyers about it.

Lehmberg said she hopes to encourage defense lawyers to be on the lookout for clients who would qualify and succeed, especially African Americans.

But defense lawyers interviewed said they know about the program, and some believe that it's Lehmberg's rule that disqualifies anyone with a prior criminal record that has led to the dearth of participation by black defendants and people represented by court-appointed lawyers.

They said many defendants who require court-appointed lawyers often have a disqualifying criminal record.
This is coming up because District Judge and Democratic DA challenger Charlie Baird has made it an issue in the race:
The program has been criticized by former District Judge Charlie Baird, Lehmberg's challenger in the May Democratic primary for the county's top felony prosecutor position.

Baird called the entry requirements discriminatory, saying he does not believe that prosecutors are rejecting applications because of the race or ethnicity of defendants. He said he would allow defendants convicted of some misdemeanor crimes to participate and would expand the list of crimes considered for the program, although he said he is still developing specifics on his proposed new criteria.

Baird said he wants more people to get the chance to avoid a felony conviction, which can forever affect a person's ability to secure things such as loans, jobs and housing.

"The collateral consequences of a felony conviction are just devastating to an individual who is truly repentant, remorseful and who otherwise would live a good, solid, happy life supporting themselves and their family," he said.

The American-Statesman analysis comes after a review of court files, data from Lehmberg's office and data from the Travis County court administration office.

The analysis found that although African Americans made up about 32 percent of those arrested in Travis County on new felony charges during 2010 and 2011, they account for 9 percent of the 131 defendants who have been accepted into the pretrial diversion program since its creation in 2010.

About 73 percent of felony defendants in Travis County during the previous two years were found to be poor and given a court-appointed lawyer. About 11 percent of defendants accepted into the pretrial diversion program were represented by court-appointed lawyers.

Lehmberg said she has already taken some steps aimed at ensuring the program is fairly administered.

Late last year she added two trial court prosecutors — Monica Flores, a Latina, and Craig Moore, an African American — to the panel that decides who gets into the program. That panel had previously had three veteran white male supervisors in her office.

"I do not agree with (Baird) that the answer to this is to throw open the doors to the program to anybody," Lehmberg said. "This program is intended to provide an opportunity to nonaddicted defendants with no record who made a mistake and want to accept responsibility and go on with their lives."
I don't believe the reason the program has few black folks in it is that there weren't enough minority prosecutors in decision making slots. Instead, there's something about the criteria set by the DA - perhaps especially surrounding prior convictions or indigence - that's playing into those distinct ratios, something probably more related to class than race. When just 11% of defendants in the program have appointed counsel compared to 73% overall, that tells you there are barriers to entry that for the most part only the well-heeled are overcoming. Maybe the answer isn't to "open the doors ... to anybody," but perhaps it's worth considering cracking the door a bit wider to avoid such disparate outcomes.

Friday, March 23, 2012

Competency restoration: Clinical vs. forensic assessments

One often hears folks in the system say that, though it's lamentable to use jails as a substitute for mental health treatment, at least sick people get services there. Seldom discussed, though, is that the process begins with a concerted effort to prove that mentally ill defendants are not, in fact, sick so they can be shown competent to stand trial. A presentation this morning at the Texas Criminal Justice Integrity Unit's mental health seminar by Dr. Bryan Scott - who assesses defendants' competency for Bexar County - identified some of the key distinctions between his forensic role and that of a clinical diagnostician, both in his discussion and his own demeanor and attitude toward the work.

Scott emphasized the radical differences between the role of a forensic mental health examiner vs. clinical psychologist psychiatrist. In a clinical assessment, he would typically run down a checklist of symptoms: Do you hear voices, etc.? In a forensic setting, he said, he doesn't interrogate symptoms, assuming malingerers would cop to all of them. but instead lets defendants bring symptoms to him. And when they do, he views them very skeptically, with his main task - and to hear him tell it the most "fun" part of the job - that of rooting out alleged malingerers (I say "alleged" because in one prominent example he insisted a man was faking though a jury had overruled him).

For example, instead of listing possible real symptoms, Scott will often suggest phony symptoms (e.g., are symptoms worse when you lie down, stand up, urinate, etc.?) to trip them up if they agree with items not associated with the possible illness. Or he'd ask a series of 50/50 questions ("Does a cow have three legs or four? Is a quarter worth 25 cents or a dollar.? Many mentally ill people, he pointed out, will answer those questions just fine. If they get most wrong, not 50/50 as you might if guessing, he assumes they're likely malingering. So that line of questioning is aimed at tripping up malingerers and merely wasting the time of the actually sick, and is not something you'd see in a clinical assessment.

In some cases, things that might cause a clinical diagnostician to think a mental illness more likely, said Dr. Scott, may mitigate against him believing a defendant. For example, mental illness (particularly bipolar and schizophrenia) are to some extent inheritable, so a family history normally implies it's more likely a patient will have the same problem. In the case of defendants, though, Scott said if their mother suffered from schizophrenia, a malingerer might have more intimate knowledge of symptoms and be able to mimic them. For this reason, he considers family history both "a rule-in and a rule-out" criteria.

Another key difference, said Scott: Forensic examiners determining competency do not have a doctor-patient relationship, though he does tell defendants "I'm here to help you." But his role is "not therapeutic," said Scott, who said it's a "totally different role than seeing a patient." He's not there to get them treatment. There is "no confidentiality," and he lets them know that up front. Indeed, he said, often defense attorneys will sit in on the interviews. That alone is a huge difference between the mental health treatment in jail and out: Is the client the client, or is the court the client?

Scott emphasized he wasn't assessing mental illness per se but legal competency to stand trial, declaring "Just because someone is delusional doesn't mean they're incompetent."

Dr. Scott's gleeful tone as he recounted "tricks of the trade" for identifying (or at least accusing) malingerers was difficult to suppress, and mostly he didn't really try. I don't say that to criticize him, at least too harshly (though at times it did seem a bit much). Malingering happens and somebody has to try to root it out. I certainly don't envy the task. Problem is, everybody including the legitimately ill, who are processed through the system in large numbers, get treated as potential malingerers on the front end, where possible diagnoses aren't probed so much to identify problems as to find excuses to ignore them. What a strange, almost perverse aspect of the system.

In jail, but not 'in custody'

Liberty and Justice for Y'all has the story of a recent US Supreme Court case ruling that an inmate questioned while in jail for an unrelated crime is not "in custody" for purposes of requiring a Miranda warning. Talk about a term of art, when you can be in jail, but not "in custody"!

Hays County 'moveable jail' looking to settle down

Here's a bit of Texas carceral history I was unaware of; reports the Hays County Free Press:
The Hays County Jail’s Moveable Jail Cell in San Marcos is one of nine sites that a statewide preservation group has named to its ninth annual list of Texas’ Most Endangered Historic Places.

The moveable jail cell was constructed for the Hays County Jail in Kyle and, today, it is a rarity of its kind. The cells were referred to as a “calaboose,” the Spanish word for jail, and were constructed using the cribbing method where the walls are arranged in sets of logs or timber in a log-style cabin formation to create a rising rectangle or square.

The jail cell remained in use until 1925 as Kyle’s city jail and, later, was moved to the Texana Village at Aquarena Springs. Due to lack of funding, the jail cell along with other buildings and artifacts were removed from the Village. At the eleventh hour, the jail cell was saved and moved to its current location at the San Marcos Academy.
The jail cell is a valuable piece of Hays County history but for generations it has been shuffled around the county. It needs a permanent home where it can be restored and appreciated, Preservation Texas argues. Local advocates are working to raise funds and to increase public support to preserve the moveable jail cell in order to tell a broader story of the county’s history.
Here's a picture of Hays County's two-man "moveable jail":

Looks like it could be mistaken for a deluxe outhouse! The story says "calaboose" is the "Spanish word for jail," but to clarify, "jail" in Spanish is typically "cárcel," while "calabozo" has more the dark, dank implications of the English "dungeon." Sitting out in the sun during a hot Texas summer, though, this structure would have felt more like some sadistic, claustrophobic sweat lodge.

Is there a place in the modern world for a moveable jail? What functions did mobility fulfill (work crews, perhaps?) that a stand-alone structure wouldn't? Or was it just the case that until 1925, Kyle didn't need more than that?

You can see the idea might be taken to an extreme, if perhaps in the realm of fiction. In my mind's eye I imagine prisons designed as mobile pods with prison transfers accomplished by cranes picking up whole sections filled with inmates and stacking them on trains like boxcars. Or then, perhaps I shouldn't give TDCJ any ideas!

A moveable jail ... who'da thunk?

Overcriminalization Folly of the Week: Felony driving without a license

Grits went to read an important new US Supreme Court opinion (pdf) out this week, Missouri v. Frye, related to whether a plea deal never submitted to a client by his attorney was grounds for post-conviction relief because of ineffective assistance of counsel. It's an interesting question, but I did a double, then a triple take when I read the opening lines describing the underlying case in the opinion, then couldn't get past it: "Respondent Frye was charged with driving with a revoked license. Because he had been convicted of the same offense three times before, he was charged, under Missouri law, with a felony carrying a maximum 4-year prison term."

Huh? A max four-year prison term for driving without a license? Even for the fourth offense, that seems extreme. According to this source, actually, in Missouri it's a felony on the third offense. That seems borderline totalitarian - "Show me your papers, comrade, or I'll slap you in prison for four years." Yikes! You can fill up a gulag pretty darn quickly that way! Even with that extreme penalty, though, one in ten Missouri drivers have no license.

This is overcriminalization run amok. With incarceration costs running in the $20,000 per year range, it'd be a lot cheaper to remove barriers to licensure and spend the money you would have spent on prosecution and incarceration to give out free bicycles and bus passes. The absurdist cost-benefit analysis behind making driving without a license a felony worthy of prison time boggles the mind.

Reduction in federal pork one cause of reduced Texas traffic tickets

A commenter on the last Grits post suggested that a key reason the number of traffic tickets written by Texas police went down last year in Austin and elsewhere may have been cuts to the "Selective Traffic Enforcement Program" (STEP), which are federal pass-through grants distributed to law enforcement through the Texas Department of Transportation to pay for overtime devoted to traffic enforcement. And indeed, that may partially, but not fully, explain the recent decline in traffic tickets written by Texas police.

Searching around on TXDOT's website, I found this memo to law enforcement agencies (pdf) from April 2011 detailing 30% cuts to STEP grants - from $20.2 million to $14.2 million statewide - with a table at the end showing how much each department's grants were cut.

Houston, which has seen its number of traffic tickets decline, lost $360,000 with the reduction in STEP grant funds; Dallas' grant fell by a like amount. The Department of Public Safety took the biggest hit with a $424,521 reduction.

Austin lost about $158,000 in grant funding for overtime with that 30% reduction - not chump change, but not remotely enough to account for the 26% reduction in tickets they recorded in 2011. Austin PD says it wrote fewer tickets because of a policy change - "because the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183" - which seems like a more plausible explanation.

Plus, data from the Office of Court Administration showing a statewide decline in tickets processed in municipal court covered the state fiscal year from September to August, so cuts that took effect April 29 wouldn't have impacted most of that year. In other words, there are indications the decline in ticketing a) predated cuts to STEP grants and b) are too large to be completely explained  by them. That's certainly one of several contributing factors, though, and perhaps reason to think the trend might continue in the near term without local traffic enforcement getting artificially pumped up through federal pork.

See related Grits posts:

Thursday, March 22, 2012

Austin police gave 26% fewer traffic tickets in 2011

It turns out Austin's decline in the number of traffic tickets given out last year was even greater than Grits had supposed according to the city's recent racial profiling report (pdf), which I noticed via this story by Patrick George in the Austin Statesman. Grits has earlier reported that tickets processed in municipal court in Austin had declined from roughly 233,000 to 205,000 from 2010 to 2011 - part of a statewide trend.

The racial profiling report shows Austin officers last year gave far fewer tickets last year. "Austin police officers made 179,882 motor vehicle stops in 2011 compared to 232,848 in 2010," according to the city's racial profiling report. One caveat: That's comparing calendar year to calendar year whereas the Office of Court Administration is measuring the fiscal year (September to August).

Still, that's an amazing 26% fewer tickets from year to year! Said the report: "Overall, the number of stops is lower in 2011, in part, because the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183. As a consequence, the number of traffic citations declined from 224,662 in 2010 to 165,757 in 2011, a 26% reduction. The overall number of motor vehicle stops also decreased by 23%." That has trickle down effects at the jail and throughout the court system because so many arrests originate at traffic stops.

Austin also saw the number of consent searches at traffic stops decline last year, from the highest total since they began tracking in 2010 (19,519) to a more modest 2011 total (11,719)), for a 40% drop.

I went to check the same data source for other cities and was disappointed to see this on the TCLEOSE website: "Note: The link to the 2010 Racial Profiling reports from the TCLEOSE website is no longer available on-line, but may be purchased for $35 (CD disk) through Open Records Request." That's pointless. How much space does it take to archive past years' reports for comparison? I might go ahead and get a couple of years worth for comparison purposes, but that's gratuitous. At least leave the last 3-5 years of reports online to supply some context for the annual data.

SCOTUS expands habeas access on ineffective assistance claims

The US Supreme Court issued an important habeas corpus decision (pdf) this week that may have implications in prominent Texas cases, and though Grits hasn't had time to read through it and digest the implications, I thought I'd at least round up the relevant links, if only so I can go through them myself soon. First, here's how Brandi Grissom at the Texas Tribune described the case:
The nation’s highest court ruled that the failure of initial state habeas lawyers to argue that their client’s trial counsel was ineffective should not prevent the defendant from making that argument later on. Lawyers across the country, including those for at least two Texas death row inmates, were eagerly awaiting the court’s ruling in the Martinez v. Ryan case out of Arizona, which could expand appeals access for inmates.

“A procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in the proceeding was ineffective,” the court majority held.

Habeas lawyers investigate issues that could or should have been raised during a defendant’s original trial.
The ruling may have direct implications for a case mentioned recently on Grits:
The ruling could also be a boon for death row inmate Rob Will, who was convicted in 2002 of fatally shooting a Harris County sheriff’s deputy. Will says that the man he was with that night was the real shooter and that he is innocent.

In January, U.S. District Court Judge Keith Ellison denied Will’s pleas for a new trial but wrote that he lamented doing so because of “disturbing uncertainties” raised about his guilt.

Will is hoping the court’s ruling in Martinez will allow him to argue that he should get a new trial because both his trial lawyer and his state-appointed habeas lawyer were ineffective when they failed to track down several witnesses who have testified that the other man confessed to the killing.
See the SCOTUSBlog Wiki page on Martinez v. Ryan, good guest blogging on the subject at Sentencing Law & Policy, as well as Adam Liptak's coverage in the New York Times and notable commentary at the ABA Journal, the Courthouse News Service, and the Habeas Book Blog.

Prosecutor Misconduct Roundup: 60 Minutes to feature Michael Morton exoneration Sunday

The TV news show 60 Minutes will broadcast a segment about Michael Morton's exoneration and the struggle to hold Williamson County prosecutors accountable through a court of inquiry this Sunday, March 25 (6:00-7:00 PM, CT) on CBS.

Relatedly, the blog Wilco Watchdog has been diligently chronicling Williamson County DA John Bradley's re-election foibles, including a recent rumpus with a local police union that endorsed his opponent and accused Bradley of misrepresenting their political motives.

That is a hot, hot DA's primary fight in Williamson County. So despite his latter-day conversion, another turn in the barrel for the Michael Morton case in the national media likely won't do Bradley's re-election campaign much good. The man fought for years to keep Mr. Morton from getting exculpatory evidence tested, a record that earned him the distinction of Worst American Prosecutor of 2011, according to a reader poll at The Agitator blog. And Judge Ken Anderson, the former DA accused of withholding evidence in Morton's case 25 years ago, is Bradley's patron, mentor and even sometime writing partner, though JB now says they're on the outs.

Hopefully coverage on the respected 60 Minutes will also ratchet up pressure for reforms at the Texas Legislature next year aimed at stemming prosecutorial misconduct - a subject on which Grits has been compiling reform suggestions. Bradley's future isn't nearly as important as whether the state learns from mistakes like this or allows prosecutors to throw up a smokescreens to prevent legislative intervention. It's clear the courts and/or existing statutes aren't up to the task, so if one wants stronger incentives for prosecutors to play by the rules, the legislative branch is perhaps the best hope.

Finally, I wanted to alert readers in Austin to a timely event on this topic that Grits plans to attend:
Prosecutorial Oversight: A national dialogue in the wake of Connick v. Thompson

Thursday, March 29, 2012
1:30 to 3:30 PM
Francis Auditorium
University of Texas School of Law – Austin, Texas

Please join us for the Texas stop of a national tour to address the issue of prosecutorial oversight.  The Supreme Court’s recent decision in Connick v. Thompson rejected civil liability for Brady violations in lieu of what it took to be effective status quo mechanisms for training, supervising, and remediating prosecutorial disclosure issues. A discussion followed by Q&A will address existing oversight mechanisms in Texas, assess their adequacy, and explore possible avenues of reform.

Speakers include:
  • Betty Blackwell – Attorney, former chair of the Texas Commission for Lawyer Discipline
  • Jennifer Laurin (moderator) – Assistant Professor, University of Texas School of Law
  • Jim Leitner  - First Assistant District Attorney, Harris County
  • Michael Morton – Freed after 25 years in prison in Texas following DNA exoneration and revelation of concealed exculpatory evidence
  • Hon. Bob Perkins (Ret.) – Former judge, 331st District Court, Travis County
  • Professor Robert Schuwerk – Professor, University of Houston Law Center, author of leading treatise on Texas rules of professional conduct
  • John Thompson – Founder and Director of Resurrection After Exoneration and Voices of Innocence and plaintiff in Thompson v. Connick, imprisoned in Louisiana for 18 years (14 on death row), freed after revelation of concealed exculpatory evidence
  • Emily West – Research Director, The Innocence Project
The event is free and open to the public, but RSVPs are encouraged. Please register by Tuesday, March 27 by emailing
Event moderator Jennifer Laurin, I notice, has an academic paper on Connick v. Thompson which must also go on Grits' reading list.

CCA Integrity Unit hosts capitol seminar on mental health

Today and tomorrow the Court of Criminal Appeals' Criminal Justice Integrity Unit is holding a two-day seminar on mental health at the capitol. (See a flyer [pdf] for the event.) If you haven't registered (I understand it's full), you can watch online beginning at 9 a.m. this morning; go to the Texas Senate's video page and scroll down to the "Court of Criminal Appeals Seminar," clicking on the Real Player icon to launch the broadcast once it begins. The first day focuses on substance abuse issues; tomorrow they'll cover competency restoration, involuntary commitment, and representing the mentally ill.

Wednesday, March 21, 2012

Pedestrian deaths in Austin and the trouble with drawing conclusions from small numbers

One seldom-discussed drawback with data-driven policing - particularly when its used in mid-size and smaller cities - is that small statistical samples often make drawing valid inferences problematic, and here's a good example: Writes reporter Brenda Bell, "auto-pedestrian deaths are up in Austin, even as deaths from other vehicular collisions are falling. Last year marked an 83 percent increase in pedestrian-bicyclist fatalities; there were 22, compared with a dozen in 2010." Bell reported Sunday that "This year, eight people, including one walking his bike, have already died in collisions with motor vehicles. All but one happened after dark or at dusk. One-third were hit-and-runs."

While certainly it's accurate to say there was an 83% one-year increase, when the numbers are so small that means very little as far as identifying a statistical trend of increasing deaths, and the story didn't include prior years' data. On Sunday Bell did report that "Auto-bike fatalities have averaged one per year over the past seven years," but that means the year you have two it's a hundred percent increase. Is that meaningful data, or just random fluctuation? You see the same issues with murder trends and other infrequent events. Media will report a one-year increase with tremendous drama as a possible trend, even during periods like we're in now when long-term murder rates are declining. When numbers are so small, you need multiple years of data to perform a probative trend analysis, which of course doesn't make for the most attention-grabbing news story.

Perhaps the most obvious death-causing trend evidenced in the stories is that a significant proportion of pedestrian deaths in Austin happen along Interstate 35, which for significant stretches (especially north of 51st Street) is difficult to cross legally on foot and is flanked by extremely busy frontage roads. This datapoint reinforces my sense that jaywalking can be better addressed via traffic engineering solutions that make it safer for pedestrians to get where they're going. If you're walking any significant distance along the access road on I-35, it's likely because you have no other choice.

Another notable trend mentioned is bicyclists being hit after dark, which might argue for efforts narrowly aimed at improving safety equipment. (I see cyclists these days with flashing lights on their bikes instead of reflectors that make them MUCH easier to see after dark.) Cyclists' deficient equipment can be addressed with a variety of tactics from public education, warnings or tickets for equipment violations, improved lighting for dangerous intersections and popular bike routes, etc..

For the most part, though, the city should address these mainly as traffic engineering questions as opposed to law-enforcement concerns. For example, would auto-pedestrian/bike accidents downtown be reduced by creating the proposed Nueces Bike Boulevard? (See here [pdf] for more detail.) Quite possibly. A fascinating and telling map of recent auto-pedestrian/bike accidents accompanying the story shows a large number downtown, though some are concentrated on the east and west entry corridors. Those wouldn't be affected by a north-south route on Nueces, which more aims to reduce accidents on, say, Congress and Lamar.

Instead, Austin PD took a one-size-fits-all enforcement approach, employing a hammer in lieu of a scalpel. In a highly unpopular two-week crackdown last October:
Pedestrians got 1,336 citations and warnings, for offenses such as failure to observe traffic signals, panhandling or stepping into roadways midblock. Drivers got 174.

That lopsided scorecard is par for the course. Between 2008 and 2010, Austin police issued nearly 11,000 citations for violations of auto-pedestrian laws; only 7 percent went to drivers.
Ticketing cyclists may prompt them to get better equipment for biking at night - just handing out lights might even be better - but jaywalking will always be a function of convenience and opportunism. Focusing significant resources on ticketing them IMO is just silly. Meanwhile, as for Austin's much-ballyhooed "3 foot rule" that's supposed to protect "vulnerable" road users?
A city ordinance passed in 2009 requires vehicles to keep at least 3 feet away when passing a "vulnerable user" — a bicyclist, motorcyclist, pedestrian or runner. On four-lane roads, motorists are supposed to yield the lane entirely.

Austin police have issued just eight citations — four per year — under that law.
So that was a bust. Now they're going to try using police as pedestrian "decoys" to ticket motorists. But with 11,000 citations for auto-pedestiran laws over three years and a supposed increase in the problem just now, it doesn't seem like the enforcement-only approach gets to the heart of the problem. Assessing tickets and fines for petty offenses while telling the public it's for their own protection comes off as self serving as it is patronizing in an era when municipal tickets are viewed as a lucrative revenue source.

To be fair, the city does have $13.5 million in bond money available "for projects to enhance mobility and safety for pedestrians, bikers and disabled people," which should do a lot more to prevent deaths than giving pointless tickets to jaywalkers. Certainly it will do more than APD's various proposals for new city bonds at ten times the cost.

Police Chief Art Acevedo told the paper he thinks this trend - which nobody can really say is a trend yet - results from the declining moral character of the citizenry: "Drivers think (pedestrians) don't have the right to cross the street, and pedestrians think they can jump out at the last second," he said. "It used to be ... that when a pedestrian set foot in an intersection, that people stopped. I think it's a commentary on society that we've lost that respect," adding that we're all a bunch of drunks Austin is "one of the heaviest drinking cities in the country."

For Grits' part, I think it's a commentary on Austin PD that, although the chief and the union complain constantly they don't have enough uniformed officers, when they get them they want them deployed ticketing jaywalkers while the civilian APD crime-scene unit doesn't even investigate a majority of burglaries for lack of manpower. And it's perhaps a commentary on the local media that police pronouncements of an "increased rate of pedestrian fatalities on Austin streets" are accepted as valid based on such a limited dataset. (If earlier years' numbers of pedestrian deaths are higher than 12, it might almost seem like the data was cherrypicked.)

These two stories give us insight into Austin PDs traffic enforcement tactics but in many ways for Grits raise more questions than they answer. Once we've seen the number of pedestrian deaths by year, preferably per capita, over a longer period of time, perhaps it would be safer to draw conclusions about trends.