Does Tarrant ME deserve praise following FSC 'professional misconduct' finding?

The Fort Worth Star-Telegram today has a story on drylabbing at the Tarrant County Medical Examiners office and recent findings of professional misconduct by the Forensic Science Commission, which Grits reported last week. The FSC had commended the Tarrant ME for self reporting, however:

Critics, including some of the nation's forensic scientists, say "not so fast."  

"They are going to do a commendation to the lab for doing its job -- for doing the bare minimum?" said Amy Driver, a forensic scientist in Washington, D.C., who hosts a blog on the forensic science community.

A deeper examination is needed because the findings call into question the serologist's previous work, they said.

When someone has done something "grossly dishonest,'' said Maine forensic scientist Thomas L. Bohan, "you have to really suspect everything that person has done."

How can crime lab officials be assured that other problems don't exist?, they asked.

"If I was put in prison based on a test that guy had done and if I was the attorney who represented someone based on the DNA test, I'd be hammering down the door of the courthouse to get my appeal in,'' said Driver, who is a firearms examiner and an expert on crime-scene reconstruction."That's outrageous."

An investigative panel of the commission announced at the meeting Friday that the lab doesn't need to do further testing.

Grits can see both sides of the question: On one hand, labs are in a damned if you do, damned if you don't situation. You want agencies to self report when something goes wrong and it would be unfortunate if doing so means the good actors are punished more than those who conceal problems. OTOH, the FSC's fulsome praise of the Tarrant ME may stem to some degree from deference on the panel to their former chair, Dr. Nizam Peerwani. I too, during the discussion on Friday, felt that the ME was being praised too much merely "for doing its job." After all, labs have a self-interest in self-reporting, because a) it's required by law and b) managers will get into much more trouble after the fact if they don't. So yes, Dr. Peerwani acted quickly to suspend the employee and review his old cases, but isn't that what he's supposed to do?

In the big picture, it's part of the culture of law enforcement organizations (LEOs) that any time they're found to have engaged in misconduct, critics and the media are expected to frame their analyses to highlight everyone's good intentions. Otherwise, LEOs just become defensive and clam up (or sometimes counterattack). You see this repeatedly when police departments or District Attorneys are criticized, but the same dynamic goes on with crime labs at the FSC. The commission's reports tend not to soft-pedal the details of alleged negligence or misconduct in the cases before them, but they often go out of their way to praise agency managers for just "doing their job."

Maybe that's the most politically effective tactic: One catches more flies with honey, after all, than with vinegar. But especially when doing that with regards to an agency run by one of the commissioners, as in this instance, there's a potential for the appearance of whitewashing. It's certainly a fine line to walk.

Read more here: http://www.star-telegram.com/2012/07/30/4139295/state-panel-commends-tarrant-crime.html#storylink=c

5th Circuit: Inmates can sue TDCJ over excessive heat

After the suit was thrown out at the district court level, the federal 5th Circuit Court of Appeals said the Texas Civil Rights Project could sue the Texas Department of Criminal Justice on behalf of inmates over excessive heat. (See Grits coverage of oral arguments and a recent, related NY Times story.) TCRP this afternoon put out this press release:

State fire marshal pledges to assist in innocence review of old arson cases

Texas' new state fire marshal, Chris Connealy, told the Forensic Science Commission on Friday that he will use recommendations in the commission's report on the Todd Willingham arson investigation as a blueprint for reforming the agency, and even "go beyond" them. The former Houston and Cedar Park fire chief, who took the job about a month ago, embraced scientific advancements in the arson field that the agency heretofore strongly resisted. The fire marshal will update its training and standard operating procedures, he said, and create a new science advisory committee. Connealy also pledged to work with my employers at the Innocence Project of Texas (IPOT) to review arson convictions of current TDCJ inmates for potentially valid innocence claims based on flawed forensics.

I got to visit a bit with Mr. Connealy after the meeting and he seemed just as committed to confronting flawed arson forensics as his predecessor seemed committed to ducking the issue. Frankly it was a breath of fresh air.

Jeff Blackburn, chief legal counsel at IPOT (and my boss at my day job), updated the commissioners on the work that's gone into the arson review project so far. IPOT conducted reviews of 1,085 arson convictions, said Blackburn, and identified 25 or 26 which justify significant additional review. Blackburn said he expected a more thorough vetting would weed out more, and speculated that perhaps 10-15 arson cases may end up going forward seeking relief, though it's too early to say for sure, he emphasized. (N.b., Grits works with IPOT on the policy side and is not involved with the arson review or any legal work regarding innocence claims.)

The common denominator in the 25-26 cases, said Blackburn, was poor work by the defendants' (usually appointed) legal counsel who failed to adequately vet questionable testimony from arson investigators, either through cross-examination or their own expert witnesses. (For those interested, I've uploaded a document Blackburn presented to commissioners updating them on the process.)

Once IPOT has narrowed down the numbers as much as they can through their own research, they and the state fire marshal will convene mutually agreed upon experts to evaluate potentially flawed testimony from arson investigators. At that point, where experts believe flawed testimony led to false convictions, the question becomes whether it's possible to secure relief from the Court of Criminal Appeals through writs of habeas corpus, or if the court's majority will continue to block innocence claims based on invalid science.

Juvenile Justice Roundup: Appeals uncommon in Texas juvie cases, and other stories

Several recent juvenile justice related stories merit Grits readers' attention:

• Austin Statesman: Texas confronts broken juvenile justice system, again
• Texas Tribune: TJJD doing blanket review of youths in facilities
• Texas Tribune: Juvie detention center seen as model for reform

The Statesman story by Mike Ward mentioned that, "On Friday, the agency will ... [hold] a public hearing in Austin to discuss the newly opened facility in Mart, near Waco, intended to house the most violent and chronic troublemakers."

See a new report (pdf) from TJJD assessing Juvenile Justice Alternative Education Programs at Texas school districts.

See also, via CrimProf Blog, a new academic paper, Juvenile Justice on Appeal, assessing juvenile appellate procedures, including in Texas. The Lone Star State gets high marks for disallowing waivers of the right to counsel when juveniles are charged as adults. However, juveniles in Texas do not have access to habeas corpus, the article notes (footnote 82) because they're considered civil instead of criminal cases. (See correction/clarification below.) Nationally and in Texas, juvenile appeals are rare. In 2010, said the article, just 52 Texas juvenile cases - only .26% of total juvie adjudications - resulted in some sort of appeal. Florida had the highest rate of juvenile appeals, with appellate proceedings in roughly 2% of cases.

UPDATE/CORRECTION: A commenter rightly pointed out that, "The statement that juvenile defendants do not have access to habeas corpus relief is incorrect. Although a juvenile defendant cannot seek habeas relief through Chapter 11 of the Texas Code of Criminal Procedure since juvenile adjudications are deemed civil, a juvenile defendant can seek habeas corpus relief through a writ under article V section 8 of the Texas Constitution. A denied article V section 8 writ can be appealed to the intermediate court of appeals." A quick Google check confirmed that and I apologize for the error. The law review article linked above said the habeas statutes in the Code of Criminal Procedure did not cover juveniles, but did not mention they retain habeas rights under Art. 5 Sec. 8 of the Texas Constitution.

Thanks to the commenter for the correction, which itself raises some interesting questions. In particular, I found the comment notable that a "writ can be appealed to the intermediate court of appeals." Here's a link to the governing opinion from the Court of Criminal Appeals, Ex Parte Valle, which held the habeas rules under the Code of Criminal Procedure don't apply but a constitutional right still exists. The opinion concluded, "Although we express no opinion on the matter, we notice that a court of civil appeals held that it had appellate jurisdiction of an appeal from a habeas corpus proceeding in which the validity of an adjudication of delinquency was challenged but upheld, and that several courts of appeals have entertained appeals when writs of habeas corpus were issued by district courts on the application of juveniles accused of delinquent conduct." So could a juvenile habeas writ be appealed to the Texas Supreme Court? ¿Quien sabe? For adults, habeas writs are only final when the Court of Criminal Appeals rules on them. The habeas process for juveniles appears more muddy.

Further, it does appear the lack of access to the statutory habeas rights in the Code of Criminal Procedure in some ways functionally restricts juvenile access to the Great Writ. For example, in 2006 an appellate court (see here) ruled that a juvenile did not have a right to counsel to assist him in filing a motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure, though an adult would have such a right. This is the statutory vehicle through which so many of Texas' DNA exonerations have occurred since it was added to the code in 2001. If the defendant had been an adult at the time of conviction, Chapter 64 would require that "The convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter." Grits has never before had occasion to consider the question of habeas corpus for juveniles, but it's an interesting one.

How best to tell jurors about shortcomings of eyewitness ID

Texas law enforcement agencies must have eyewitness ID policies in place by September 1 of this year which may, but are not required to, follow a "model policy" developed by the Law Enforcement Management Institute of Texas at Sam Houston State University. The Texas Court of Criminal Appeals has said that when police don't follow (an undefined set of) best practices, judges would be guilty of abuse of discretion if they don't allow a defense expert to explain the problems with eyewitness IDs. Even if agencies don't adopt the full model policy, however, and judges allow such experts, Texas statutes and case law mandate no special jury instruction regarding eyewitness testimony. Remarkably, in New Jersey, the Supreme Court recently took it upon itself to issue such a requirement. Reported the New York Times (July 20):

Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the "troubling lack of reliability in eyewitness identifications," it issued instructions ... for judges to give jurors to help them better evaluate such evidence in criminal trials.

A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness's ability to make an accurate identification. 

Factors like the time that has elapsed between the commission of a crime and a witness's identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.

And in cases involving cross-racial identifications, judges were directed to tell jurors that "research has shown that people may have greater difficulty in accurately identifying members of a different race."

"You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness's identification," the instructions say.

The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.

"Human memory is not foolproof," the instructions say. "Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex."

The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.

Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.

The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said. 

Erroneous eyewitness testimony has been by far the most common cause of false convictions among DNA exonerees and these instructions go a long way toward reducing the chance of false convictions. Though falling short of requiring corroboration of eyewitness testimony - which Grits thinks is justified when the witness had never previously seen the defendant - these sorts of cautions go a long way toward rebutting false assumptions by jurors which have contributed to so many high-profile miscarriages of justice.

The New Jersey jury caution could have implications for Texas courts as well. The Court of Criminal Appeals cited the New Jersey ruling in their own landmark eyewitness ID case last year, State v. Tillman. The Tillman case said judges abuse their discretion if they don't allow expert witnesses to educate jurors when police fail to follow best practices, but the ruling did not identify in detail just what those best practices are. Arguably the SHSU model policy provides significant guidance, but the New Jersey rulings provide an especially strong basis for making such a judgment.

Ironically, Texas' statute was designed to give more deference to law enforcement, but the Tillman case means when proper procedures aren't followed, counties must pony up (in indigent cases) for a defense expert. By contrast, New Jersey's approach informs the jury of essentially the same limitations on eyewitness testimony without having to pay for additional expert testimony. Despite the Texas Legislature's intention to cater to law enforcement by not including a jury instruction, New Jersey's approach - creating a hard and fast rule - would probably be simpler for police, prosecutors and jurors alike.

Small-town chief on paid leave for allegedly falsified documents

A small-town police chief allegedly was caught falsifying documents and was given a two-month paid vacation as a result, reported KWTX-TV:

Buckholts Police Chief James Blackmon was suspended with pay for 60 days ... after he was [arrested] on [a] misdemeanor charge of falsifying a government document.

After 60 days, a city spokesperson said the police chief could return to work, be permanently suspended or his suspension could be extended until the close of the investigation.

Officers representing the Texas Commission on Law Enforcement Standards and Education and Milam County deputies arrested Blackmon at around 4:15 on July 5 at the Buckholts Police Department on the warrant charging falsifying a government document, which is a Class A misdemeanor.

TCLEOSE, which is charged with certifying peace officers in the state, said they initiated the investigation that led to the arrest after receiving reports that Blackmon carried more than a dozen officers on his roster when there were only three actually working at the department.

The extra officers were listed as members of the town's police force so they could qualify to do private security jobs, according to TCLEOSE.

TCLEOSE said Blackmon has been a police officer for 24 years and 11 months and during that time has held 22 different jobs.

Remarkable: 22 different law enforcement jobs in 25 years. That's almost the definition of a "gypsy cop."  It's notable that TCLEOSE initiated the investigation only after receiving a report. The agency could and arguably should proactively ensure (or at least spot check) that officers listed as employed at local agencies are actually drawing a paycheck. I bet this isn't the only jurisdiction carrying extra officers on the books so somebody's buddy can get a security job.

El Paso may close crime lab, outsource controlled substance testing

El Paso PD is having such problems finding a crime lab director that it may shut down its one-person lab performing controlled substance analysis and begin outsourcing the work, according to a draft report presented yesterday to the Forensic Science Commission. (See earlier Grits coverage; for whatever reason, I have seen no other media reports on the FSC probe.)

FSC Chairman Vincent Di Maio wondered if that might not be a good thing, since small labs may not have the oversight or quality assurance controls of bigger facilities. But prosecutor rep Richard Alpert worried that the need to have lab workers available for court appearances could pose a practical problem if El Paso began to outsource because of the town's relative isolation. DPS would like to expand its crime lab facility outside El Paso but needs budget authorization that couldn't come before next year.

Interestingly, part of the problems at the El Paso lab (which as of this spring has supposedly been resolved) stemmed from their reliance on UTEP for technical assistance when the lab was established. The lab was using a device that's more commonly applied in university research settings than for forensic drug analysis, so their results couldn't be easily cross-checked with other labs. Given recent events surrounding the Criminal Justice Program at UT El Paso, Grits would like to learn more about the backstory to UTEP's involvement in the El Paso PD's crime lab woes.

UPDATE: A knowledgeable source informs Grits that rather than outsource per se, El Paso is considering "insourcing" (I know, it seems a bit like hair splitting), i.e., paying for a private lab to operate on their premises - probably Integrated Forensic Labs, out of Euless, whose director Ron Fazio is presently serving as interim director of the El Paso lab. If that happens, the current analyst - who is an EPPD police officer - would be transferred to other duties and an employee of the private lab would take his place.

Head of UTEP Criminal Justice Program resigns amidst corruption scandal

The head of the University of Texas at El Paso's Criminal Justice Program recently resigned amidst allegations of impropriety and corruption, reported the El Paso Times this week ("UTEP's embattled professor to resign," July 27):

Fernando Rodriguez, the former head of UTEP's Criminal Justice Program who has ties to El Paso's public-corruption scandal, will resign effective Aug. 31, UTEP Executive Vice President Richard Adauto said Thursday.

Rodriguez, the target of an FBI investigation, was suspended in February after the El Paso Times reported that he had received more than $914,000 in outside employment between 2001 and 2009 without reporting it as required by University of Texas at El Paso rules. Additional documents showed that Rodriguez was paid an additional $233,000 by Aliviane Inc. in 2010, bringing his total pay by the nonprofit to more than $1.1 million.

Several projects evaluated by Rodriguez have led to federal investigations and so far resulted in two corruption convictions, including former County Judge Dolores Briones. The CEO of Alviane will go to trial this fall. See much more detail in the Times story.

Another questionable project Rodriguez worked on was a so-called "open sourced crime lab" which never quite lived up to its billing. The Times reported earlier this year ("UTEP: Agencies say university's Open Sourced Crime Lab hasn't given pledged help," March 25) that area law enforcement agencies had never heard of the project and few if any deliverables could be identified.

NY Times: Heat a death sentence for ten Texas prisoners last summer

In a story today, the New York Times reported that:

Last summer’s record-breaking heat wave had a grim impact on Texas, playing a role in the deaths of roughly 150 people. Many of them were found in their homes or apartments, but a few were discovered somewhere else — in their prison cells.

Ten inmates of the state prison system died of heat-related causes last summer in a 26-day period in July and August, a death toll that has alarmed prisoners’ rights advocates who believe that the lack of air-conditioning in most state prisons puts inmates’ lives at risk.

The 10 inmates were housed in areas that lacked air-conditioning, and several had collapsed or lost consciousness while they were in their cells. All of them were found to have died of hyperthermia, a condition that occurs when body temperature rises above 105 degrees, according to autopsy reports and the state’s prison agency.

Other factors contributed to their deaths. All but three of them had hypertension, and some were obese, had heart disease or were taking antipsychotic medications, which can affect the body’s ability to regulate heat.

Less frequently discussed than the effects of heat on prisoners is the effect on staff:

At least 17 prison employees or inmates were treated for heat-related illnesses from June 25 through July 6, according to agency documents. Many of them had been indoors at the time they reported feeling ill.

At the Darrington Unit near Rosharon on June 25, a 56-year-old corrections officer fainted in a supervisor’s office and was taken to a hospital. Heat exhaustion was diagnosed. At the four-story Coffield Unit near Palestine, where one inmate died of hyperthermia last August, dozens of windows have been broken out — prisoners slip soda cans or bars of soap into socks and throw them at the windows, hoping to increase ventilation.

TDCJ disputes the numbers cited by the Times, claiming "12 inmates had died of heat-related causes since 2007." But if the Times is right that hyperthermia was listed in the autopsies as the cause of death for all ten men cited in the story, that claim seems a bit self serving. At a minimum, it sounds like inmates diagnosed with hypertension, heart disease or taking antipsychotic medications should be prioritized for removal from units without air conditioning. Grits understands it's unreasonable to expect every unit to be air conditioned anytime soon, at least short of a federal court order, even though A/C is mandated for county jails. But at this point, the risk factors that make heat-related death more likely are becoming pretty clear, and it's probable the state needs more air-conditioned units than it's got.

Regardless, I expect state officials to remain in a state of denial on the subject unless and until a federal court tells them otherwise. We should find out soon whether or not the Texas Civil Right Project will be allowed to take the first such case to trial. When that happens, the rhetorical and political dynamic surrounding the topic could change quite rapidly, particularly if the plaintiffs prevail.

DPS analyst who faked results worked on 4,944 drug cases

A bit more detail came out at yesterday's Forensic Science Commission meeting about an incident (see here) at a Department of Public Safety lab in Houston where an analyst was caught using a sample from an unrelated case to validate a positive finding for Alprazolam (the generic name for Xanax). DPS self-reported the event to the FSC after the falsified test was accidentally discovered by a co-worker, and the FSC yesterday accepted the recommendation of their Complaint Screening Committee to accept the case. According to the description presented to the commission, the discovery happened by accident and would not have been revealed through regular management and audit systems.

In the wake of this revelation, DPS analyzed all the labworker's cases over the previous 90 days and found additional discrepancies in two other instances. In most of the cases, though, DPS has already sent the evidence back to the originating agency. The same analyst had performed work on 4,944 cases since 2006, but it's likely that in many of them, the evidence has been destroyed. in cases which have already been adjudicated. Further, DPS has no way to track the adjudication status of cases it's worked on and lab director Pat Johnson told the commission the agency has no idea in what percentage of affected cases the evidence still exists to re-test. What a fiasco!

DPS has notified prosecutors and the defense bar, and the District and County Attorneys Association provided effective guidance for vetting these cases. But it's not at all clear that every defense attorney, much less every defendant, whose cases were handled by that analyst, have been notified, nor how individual DA offices are handling the cases.

FSC member and Tarrant County prosecutor Richard Alpert said the disclosure could lead to many cases - even those that resulted in plea bargains - being overturned either through a writ of habeas corpus or even an "untimely motion" for new trial. However, the defense attorney rep on the FSC, Bobby Lerma, worried that defense counsel who'd worked these cases for indigent clients may not aggressively respond to this news, or even necessarily receive it.

Johnson told commissioners that requests for re-testing are still trickling in and there's no telling at this point how many cases might ultimately be challenged as a result of this muddled misadventure.

No charges for lab worker drylabbing in Tarrant

The Tarrant County District Attorney will not impanel a grand jury to evaluate the actions of a lab worker in the medical examiners office who allegedly reported negative test results from at least five rape kits without having ever opened most of the evidence, the Forensic Science Commission was told yesterday by their general counsel Lynn Robitalle. (For whatever reason, I've not seen any press coverage of this episode besides a couple of mentions on this blog.)

The lab worker had failed to perform tests on five rape kits where the offense report said no penetration had occurred, simply reporting falsely that the tests came up negative without actually doing them. Dr. Sarah Kerrigan said she'd closely examined the reports themselves for any ambiguity, but the analyst had clearly listed all the unopened items of evidence specifically as having been tested.

There was some confusion as to whether the lab worker was allowed to resign instead of being fired for cause, but in any event, there apparently will be no legal consequences beyond termination of employment. The FSC found that this "drylabbing" episode amounted to "professional misconduct," though the finding brings with it no substantive punishment.

This type of fraud cannot be caught through regular "tech reviews," the commission was told, and as a result the Tarrant ME will begin doing periodic audits of case work in addition to tech reviews.

FSC members praised the Tarrant Medical Examiner's Office - which is run by Dr. Nizam Peerwani, a commission member who was not present at the meeting - both for diligently vetting the lab worker's old cases and for self-reporting the violation when it was discovered. But it's also notable that the commission didn't interview the employee in question because the Tarrant ME wouldn't give them his contact information. Robitaille said the former employee had told the Tarrant ME he didn't remember the cases in question. FSC Chair Vincent DiMaio said it may have been just as well, noting that 'Anyone with any intelligence would not talk to you," anyway.

Thanks for stopping by: Four million visitors and counting

Sometime yesterday, I just noticed, Grits for Breakfast surpassed its four millionth visitor, according to SiteMeter (representing more than 6.3 million page views). Counting this one, those readers over the years have visited a total of 6,750 individual posts since this blog launched in October 2004. So, Grits thought it felicitous to take this opportunity to say "thank you" to everyone who follows this blog, which at this point includes nearly 1,300 daily email subscribers. Grits for Breakfast matters not so much because of the things I write as because of who reads it and what they do with the information, so thanks for reading and I hope you've found the site interesting and useful.

Since I haven't promoted the email subscription option in a while, let me remind readers that you can receive a daily email with links to the previous day's Grits posts by signing up here.

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This blog's readership has grown almost exclusively through word of mouth, so if you like what you read here, help spread the word. Beginning in the fall, there will be a few changes coming to the site that I'll describe later in more detail. But fear not. If Grits has anything to say about it, the best is yet to come.

Rocky start for private forensic psych facility

A bit more detail emerged on fines recently levied against a public-private forensic psychiatric hospital operated by the GEO Group in Montgomery County (see earlier coverage) in a report froms the Houston Chronicle ("Conroe psychiatric hospital may face big fines," July 28). The story by Lomi Kriel, opened:

Texas health officials recommended levying more than $100,000 in fines against the state's first publicly funded, privately run psychiatric hospital in Conroe for violations including the improper restraining and inadequate monitoring of patients and other infractions committed in its first year.

County leaders who oversee the Montgomery County Mental Health Treatment facility and officials with GEO Group, a prison company running the center for mentally incompetent defendants, met with state health officials last week. The company, based in Fort Lauderdale, Fla., contracts with the county, which has a two-year, $15 million-per-year agreement with the state. Since company officials said they have fixed the problems, the state tentatively agreed to halve the fines. 

The GEO Group portrayed the violations as mostly related to paperwork, but there were also allegations of under-qualified managers, improper restraints used on patients/inmates and "several" policies that "violated patients' rights":

According to a July 19 notice of alleged non-compliance and a May 11 notice of licensing violation, state investigators outlined a range of issues it deemed troublesome.

Among them: Half of 50 incidents where officials restrained or secluded patients were not accompanied by an "appropriate" doctor's order. Investigators found a "significant lack of compliance with physician orders for initiating restraint." State law says restraint can only be used when ordered by a doctor and when evidence of imminent harm exists.

Several hospital policies violated patients' rights, state officials found, including a prohibition on possessing items for reasons other than patient safety. Investigators detailed spotty record-keeping, including gaps suggesting patients were not properly monitored, and a lack of documentation related to patient consent for receiving psychoactive medications. The director of psychiatric nursing, meanwhile, had only an associate's degree, not the required master's degree in psychiatric mental health or related experience.

To be fair, state-run mental hospitals have certainly had their own problems. As the Austin Statesman recently reported, "Last month, former Austin State Hospital psychiatrist Charles Fischer was indicted by a Travis County grand jury on charges that he sexually abused five patients under his care at the facility." Still, for a project spawned in a back-room budget deal, the private facility in Montgomery County has gotten off to a rocky start.

DEA refuses help in forensic investigation for fear of affront to prosecutors

As part of their investigation of the Austin PD crime lab, the Forensic Science Commission contacted the DEA lab in Dallas to ask them to re-test 23 controlled-substance samples for them. Darrell Davis, the manager of the Dallas lab, was enthusiastic and didn't believe it to be a problem, FSC general counsel Lynn Robitaille told commissioners at their meeting today, but felt he needed to ask permission from his superiors at the Department of Justice in Washington D.C. before he said "yes."

Later, though, the FSC was informed the DEA lab would not perform the testing. When they asked why, the FSC was told that DOJ managers in D.C. feared that, if they found any "discrepancies," it would "put prosecutors in a bad position." Robitaille emphasized that, in this case, the Travis County DA supported re-testing. But it didn't matter. DEA still said no, and refused to give their reasons in writing upon request.

Ultimately, Austin PD agreed to pay for re-testing and the samples were sent to a private Pennsylvania lab. No discrepancies were discovered, but just the risk of an adverse outcome was too much for the DEA.

In the end, none of the samples cited by the complainant which were re-tested came back as errors. The FSC found that one senior APD analyst had routinely reported results without properly documenting the underlying tests. (The analyst called it a "bad habit.") Another person was allowed to change an answer on a proficiency test after the fact (from saying they found no controlled substances to identifying one). Employees should not be performing "tech reviews" of their own analyses, commissioners said, as happened at APD in some cases. (APD said they've discontinued the practice.)

The FSC did not formally find negligence or misconduct at the APD crime lab, but they identified numerous "improvement opportunities" particularly regarding how they document their work. The commission concluded that lab failed to follow protocols that were in place at the time, but the infractions did not rise to the level of negligence because they did not affect the test outcomes. (Basically, the ruling was "no harm, no foul.") The Austin lab will be cited by their accrediting body, ASCLD-LAB, for non-compliance with standards, the commission was told.

Defining away negligence and misconduct at crime labs

Grits is headed this morning to the Forensic Science Commission's quarterly meeting (see the agenda), but yesterday, reported Patrick George at the Austin Statesman, an FSC investigative panel recommended no finding of negligence or misconduct at the Austin crime lab, despite confirming the allegation that at least one employee had issued results in preliminary reports without performing the underlying tests. Reported George, "Panel members on Thursday said that during their investigation, they found only one lab employee who engaged in that practice. It is no longer allowed at the lab, they said."

Instead, panelists blamed the result on poor note taking and record keeping:

"While there may have been some sloppiness in note-taking ... I don't think negligence occurred," said commission member Dr. Jeffrey Barnard.

His colleagues on the panel, which consisted of three commission members, agreed.

"There's certainly a need for some documentation improvements," said Richard Alpert, the Tarrant County district attorney. But Alpert said that after examining each point made in the complaints, some of the allegations appeared to be "exaggerated."

Still, if the FSC knows at least one lab worker engaged drylabbing - i.e., reporting results without documenting the underlying tests - and the Austin crime lab actually had to change its policies  to prevent it (implying it was allowed under the old policy), was there really no negligence or misconduct?

As described in some detail in this Grits post, the explanation may partly lie with inadequate definitions of negligence and misconduct in Forensic Science Commission policies dating back to former Chairman John Bradley's tenure. When Bradley pushed through the agency's policies - despite the fact that the FSC has no rulemaking authority - their Attorney General adviser warned them of a "gap" in the definitions of negligence and misconduct that meant that did not cover instances where labworkers were aware of professional standards and fail to follow them. The FSC, though, adopted Bradley's definitions without amendment and they're still on the books. So now when the FSC finds no "negligence or misconduct," as has been recommended in Austin, that doesn't mean that labworkers didn't knowingly violate procedures.

Those definitions are inadequate for another reason: They only call for negligence or misconduct findings if it affects the result of the test. So if a labworker engages in "drylabbing," it's not necessarily negligence or misconduct under FSC rules if they guessed correctly. E.g., recently Tarrant County self-reported that a crime lab employee had failed to test rape kits when the police report said no penetration occurred, claiming to have performed tests in at least five cases when he did not. Since further testing of those kits found no semen, it didn't change the results and so may not constitute negligence or misconduct under FSC policies. But that doesn't mean that labworker's results should be viewed as reliable.

Similarly, the FSC found no negligence or misconduct at the El Paso crime lab despite their employing a clearly incompetent analyst for the same reason: No one had yet demonstrated it changed the "result" of any specific test. The current definitions seem to assume the ends justify the means.

The Statesman report says the FSC results may "vindicate" the Austin crime lab. But until those definitions are upgraded, it frankly doesn't mean much when the FSC concludes there's no negligence or misconduct because they've defined away some of the biggest problems. In FSC cases so far such as Todd Willingham's and at the El Paso crime lab, such findings masked serious problems which were well-documented in the underlying investigation.

MORE

'Gagged, sealed and delivered,' and other stories

Here are a few odds and ends that didn't make it into their own separate posts but merit Grits readers' attention:

'Gagged, Sealed, and Delivered'
Houston federal Magistrate Judge Stephen Smith has published an article titled "Gagged, Sealed, and Delivered," criticizing secrecy in issuance of federal search and arrest warrants under the Electronic Communications Privacy Act. See New York Times coverage and commentary from Simple Justice. 

Location, location, location: Real estate and private prison stocks
Grits recently linked to a Motley Fool column arguing, as I've believed for some time, that private prison stocks were overvalued. This Fool blogger, however, argues that industry leader Corrections Corporation of America has hidden value thanks to its real estate holdings that could be spun off into a real estate investment trust. The Texas Department of Criminal Justice, it should be pointed out, has similar latent value in its own vast real estate holdings.

Privatizing healthcare in prisons and jails: Uncertainty when providers sell
Twenty states have privatized some or all of their prison healthcare, reported Kaiser Health News. What happens, though, when the provider a prison or jail contracts with is bought up by another company. Three jails in the Panhandle are about to find out.

Conservatives and mass incarceration
Conservative columnist Michael Barone says that just as liberals have changed their tune on gun rights, as evidenced in the debates following the Aurora shootings, so have many conservatives begun to change their views on mass incarceration.

Probation news and other notes
The Texas Criminal Justice Coalition's newsletter has a number of items that may interest Grits readers including probation news and recommendations for the Department of Criminal Justice's Sunset process.

When the state sues your car: Asset forfeiture follies

At the Houston Press, Craig Malisow has a feature on a pair of asset-forfeiture cases, including a constitutional challenge to the practice pending in Texas' 14th Court of Appeals brought by the Virginia-based Institute of Justice. (See also a sidebar accompanying the story.) Grits has long been critical of the fact that the state may seize property in cases not only where there's been no criminal conviction, but even after defendants were acquitted, and the article's opening depicts just such a case - a fellow acquitted in June of a variety of gun and money laundering charges who still couldn't retrieve all his property. (The state ultimate settled the civil litigation, returning the money but not his firearms or prescription medication.)

Prosecutors in the story are quoted saying things like, "There are sufficient checks and balances to make sure that the state does not overreach when it comes to these types of offenses," but it's frankly hard to see where those "checks and balances" come into play since the law places the burden on property owners to prove they're an "innocent owner" as opposed to forcing the state to prove guilt. However:

undue burden-shifting [is] a contention [prosecutor Karen] Morris calls "a harebrained, illogical argument." She says the innocent owner claim is an affirmative defense — akin to a claim of self-defense by a criminal defendant in a homicide case — and as such, the burden naturally falls on the person asserting the claim. Therefore, any fuss about burden-shifting is simply smoke and mirrors.

"I mean, it sounds great; it makes really good news," Morris says. "It makes quite a story and it sounds very inflammatory, but when you get down to the nuts and bolts of the legal explanation, that's when people go, 'Oh, yeah, I can see that.'"

Attorney [Brad] Frye can't see that.

Despite Morris's example of the self-defense assertion in a criminal case, Frye says the innocent owner defense is not truly an affirmative defense — it's a freak of nature.

"Under Texas law," he says, "'innocent owner' has no analogy."

This is largely because it's the property itself — not a person — that's being accused of a crime, and unless a seized Chevy suddenly becomes sentient, it can't defend itself.

Further, the proceedings take place in civil court and involve a lower standard of proof - "preponderance of the evidence" as opposed to "beyond a reasonable doubt").  That's part of why Grits doesn't buy the analogy to self defense in homicide cases, where the burden of proof for the state is much higher. In a homicide, self defense becomes an affirmative burden because someone was actually harmed and there's an ostensible victim. But if there's no crime, and no victim, placing the proof burden on the property owner IS an undue burden because there's no countervailing justice interest. Plus, the evidentiary standard for asset seizure is much lower than required for a criminal conviction: A "preponderance of the evidence" (more likely than not) requires scarcely more than credible supposition, not actual proof.

Another critical difference: If you're accused of a crime you're entitled to have the state pay for a lawyer if you can't afford one. If the state sues in civil court, though, the legal actions are titled things like "State of Texas v. One Ford F-250, One 2005 Cadillac Escalade and One 2009 Polaris 850 4-wheeler." Your Ford F-250 doesn't have a Sixth Amendment right to counsel. The burden is on the property owner to either pay for a lawyer to contest the seizure or simply lose their property. While some people routinely keep receipts and records for everything, for others, that burden will be untenable.

The plaintiff in the case at the Fourteenth Court of Appeals - where oral arguments took place in April - had leased a vehicle to someone with multiple drunk driving convictions, and Harris County seized the vehicle on the pretext that the owner "knew, should have known or purposefully avoided knowing that [the lessee] had a history of drunk driving." That case, brought by a libertarian think tank, is challenging the fundamental constitutionality of asset forfeiture as opposed to relying on the "innocent owner" defense. Malisow thinks they may have picked a poor poster-child as plaintiff: The fellow had a 12-year old misdemeanor domestic violence conviction he failed to disclose and changed his story about how much money the lessee owed him. But since the court is considering the constitutionality of the law instead of an "innocent owner" defense, that may not matter.

Grits doesn't oppose seizing criminal assets, but I do think the state should be required to prove they're criminal assets by the same standard they must prove a person committed a crime in order to secure a conviction. Preponderance of the evidence is too low -- too arbitrary -- and opens the doors for abuse even if most DAs use the law as it's intended.

See prior related Grits posts:

• Discretionary funds from commissary to asset forfeiture bolster local law enforcement budgets
• Audits of asset forfeiture funds yield questions, felony conviction of Brooks/Jim Wells DA
• Making the same old mistakes on asset forfeiture: Profit motive has no place in law enforcement strategy
• Counties upset DPS doesn't share more asset forfeiture income from I-40
• DA convicted of misusing asset funds
• Voter ID fight puts criminal justice reform bills at risk
• Tenaha poster child for asset forfeiture abuses
• Reining in asset forfeiture abuses
• DA's overreliance on asset forfeiture violates the law
• Take the profit motive out of asset forfeiture
• Senate committee: Asset forfeiture too often a profit-making venture
• Outgoing Sheriff went on forfeiture-backed spending spree
• Asset forfeiture dependent Sheriff views Hwy 77 as 'piggy bank'
• Asset forfeiture funds may get more accountability, money diverted to drug courts
• Levin: Assets seized from criminals shouldn't become political slush fund
• What's the difference between a pirate and a privateer?

Written consent for vehicle searches and déjà vu at Austin PD

Grits was pleased to read that, starting next month, the Austin Police Department will require officers to obtain written consent for searches at traffic stops when they don't have probable cause, and to notify drivers they have the right to refuse. See coverage from the Austin Statesman, the Austin Chronicle, and a Statesman editorial out today. However, the news left me with an odd sense of déjà vu.

I was under the impression this was already the policy in Austin based on prior media reports. E.g., here's a 2005 UPI story which mentioned that "When the Austin Police Department recently began requiring written consent to search a vehicle at a traffic stop, the number of consent searches dropped by more than 60 percent." In 2006, the Austin Chronicle's Jordan Smith reported that, "The APD already requires officers to get written consent," though her most recent story didn't mention it. See also this Grits coverage based on a Statesman account that's no longer online. Indeed, at one point Grits even posted a copy of the written consent form (pdf) APD was supposedly using (which the Texas Criminal Justice Coalition obtained under an open records request).

One tidibit about the new/old policy remains unclear: The Statesman reported that it applies only to "vehicle searches," while the Chronicle reported that it would apply during any stop - "traffic, cyclist, or pedestrian." (Since most searches of pedestrians and cyclists are so-called "Terry frisks" performed ostensibly for officer safety, it's hard to envision precisely how written consent would work.)

In any event, the supposedly new policy was announced after the release a report by the Police Monitor finding that one in eight traffic stops by Austin police last year involving black folks resulted in searches compared with one in 28 among white people. The Chief clearly felt the need to counter bad publicity and almost immediately reacted with this policy "change."

My question(s): Was the earlier written-consent requirement a) erroneously reported or b) eliminated without publicity between then and now? If the latter, why, and by whom? I suppose there's also an option "c": That the chief cynically re-announced an existing policy to deflect criticism based on the latest Police Monitor's report. ¿Quien sabe? Maybe if the Police Monitor report says the same thing next year, he can announce it again.

Indeed, coverage of this news has been decidedly bereft of historical context. The Statesman editorial mentioned that "The notion of written consent is not new. Legislation that would have required officers to obtain a written permission to search vehicles was introduced in the 2009 session but encountered resistance from police groups and died." But in fact, legislation to require written consent for searches at traffic stops has been filed at least since 2001 (back then, by then-state Rep. Domingo Garcia, who's presently in a runoff battle for a DFW-area Congressional seat). In 2005, Sen. Juan "Chuy" Hinojosa and Rep. Harold Dutton pushed through a requirement that consent for searches at traffic stops be written or recorded; the bill passed both chambers of the Texas Legislature only to be vetoed by Governor Perry at the behest of police unions.

Grits will attempt to sort this out but the MSM coverage so far raises more questions than answers.

MORE: See more coverage from The Daily Texan.

AND MORE: I forwarded this post to Austin's Police Monitor Margo Frasier who replied thusly:

Unfortunately, I cannot tell you for sure when APD abandoned the written consent form and began to rely on audio/video consent.  From looking at General Orders, as early as March, 2006, they allowed an officer to record consent on audio/video instead of having the person sign a consent form.  The consent form was to be used if the "consent" was not recorded on audio/video.  The same policy continued when APD redesigned its policy manual and began using "Lexipol" in August, 2011. 

One of my many concerns is that APD has been deficient in following the current policy.  For example, in 2011, 68% of the searches were non-consent (probable cause or incident to arrest), 6% (actually 5.9%) were consent, and 26% were "unknown".  In other words, the APD told the State of Texas in its Racial Profiling Report that it doesn't know whether the search was due to an arrest, probable cause, consent, or, I would suggest, unlawful due to not being based on one or more of the first three listed.  Additionally,  I do not know of a single case (during my time here) in which an officer has been disciplined for not following the Search and Seizure policy requiring either audio/video consent or written consent.  My hope is that APD not only issues a clear policy of requiring written consent, but also follows it up with training, and, if necessary, discipline. 

You bring up the issue of "Terry frisks." Although I know that you are knowledgeable in these things, some of your readers may not be.  The term "Terry frisks" comes from the Supreme Court decision Terry v. The State of Ohio and are to be used in a limited circumstance.  It is be a protective frisk based on reasonable suspicion.  In other words, it is to be a frisk limited to patting the outer surfaces of a person's clothing in an attempt to find weapons.  However, it is only supposed to occur when an officer can otherwise justify stopping the person and has a reasonable fear for his/her safety...not as a pretext to search the person for evidence of a crime such as possession of drugs.

Smugness unwarranted in counties with low DNA exoneration totals

I groaned upon readong Bob Ray Sanders' Sunday column in the Fort Worth Star-Telegram purporting to explain "Why Tarrant County has many fewer exonerations than Dallas County." In a journalistic spasm of parochial jingoism, Sanders quoted a local prosecutor claiming that Tarrant's superior open file system and more conscientious prosecutors explain why Tarrant has seen just one DNA exoneration compared to Dallas' 32 since 2001.

Grits was thankful, then, that Leslie Minora at the Dallas Observer beat me to rebutting Sanders' argument, following up with an article seeking "the real reason" for the difference. For that purpose, she called up a pair of attorneys who, in the interest of full disclosure, are on the executive committee at my employer, the Innocence Project of Texas:

Mike Ware, a Fort Worth criminal defense attorney who lead the Conviction Integrity Unit in the Dallas County District Attorney's office until last year, doesn't feel the Star-Telegram's conclusion that open files explain lack of exonerations is well-supported. "He just doesn't have near enough information to reach that conclusion," Ware says.

The writer of the Star-Telegram piece deduces that stewards of criminal justice in Tarrant County can rest easy: "[I]t's good to know there have long been procedures in place that helped prevent many of the horrendous miscarriages of justice we've seen in Dallas and other places around the state."

That seems patently ridiculous to Jeff Blackburn, an Amarillo criminal defense attorney and chief counsel to the Innocence Project of Texas.

I sent Blackburn the link and asked for his thoughts as someone who's handled innocence cases around the state.

His response: "That's baloney, and awfully smug. How about a call."

He says the discrepancy between the number of people exonerated in Tarrant County and Dallas County isn't due to the system that locked them up but to the system that's freeing them. In many cases, Tarrant County doesn't have the biological evidence to test, Blackburn and Ware both point out. Dallas does, has for decades.

That last point is perhaps the most important: Dallas has identified more false convictions than Tarrant for the same reason the guy with a metal detector on the beach is more likely than me to find buried treasure: He's looking for it. Dallas partnered with the Innocence Project of Texas to set up a system to vet potential false convictions, while most other counties (besides Harris) tend to react defensively to the possibility and fly by the seat of their pants instead of submitting the cases through a well-defined vetting process.

Grits agrees Tarrant's open file policy represents the gold standard among Texas prosecutors, but no one should get carried away by that to reach the conclusion Sanders posits. After all, prosecutor misconduct isn't a factor in every exoneration (ahout a quarter of them), and where it happens often other factors combine to produce error, much in the way that airline crashes are often found to result from a combination of events and seldom a single, fatal mistake.

And it should be mentioned that, despite Tarrant County's open-file policy, their prosecutors sometimes violate it, including in high-profile capital cases. Pride, perhaps, is warranted over their open-file policy, but hardly smugness nor conceit. If prosecutor misconduct only occurred in a quarter of Texas exonerations, does it makes sense to attribute the entire difference to that policy? After all, most exonerations come after an eyewitness erroneously identifies someone: How would an open-file policy prevent that?

Also, Sanders quoted stats on DNA requests which had been opposed by the DA's office and denied, implying all of them were false innocence claims. But he failed to point out that many of the Dallas exonerees - not to mention others like Michael Morton in Williamson County - had prosecutors successfully oppose testing for years before their innocence was proven. Indeed, that's why the Texas Legislature changed its post-conviction DNA testing statute last year to limit the grounds on which prosecutors may object to testing probative evidence. Just because the prosecution successfully opposed DNA testing under the old law doesn't mean that none of those cases would have resulted in exonerations. It just means the evidence hasn't been tested yet.

Finally, let's be clear: Even in Dallas only a small fraction of false convictions have been uncovered, as most of them have resulted from testing old DNA evidence. But probative DNA exists only in about 10% of violent crimes, meaning in 90% or so of such cases that avenue for exoneration is irrevocably closed. And in counties like Tarrant (and the rest of the state, besides Dallas) which did not retain most DNA evidence from old cases, the chances an innocent person might be exonerated decline even further because exculpatory evidence wasn't kept.

The number of DNA exonerations in recent years should not be viewed as a "total" but as a "sample," the way pollsters sample public opinion. They give us enough data to discuss causes of false convictions, but it's hubris to point to the mere absence of evidence and claim "the system works," which is the gist of Sanders' thesis.

Those interested in these debates should read Sanders' whole piece and Minora's retort. Between them they cover the ground pretty well, and I'm particularly pleased Minora did the followup so Grits didn't have to. :)

SA police lieutenant fired again, and again

Seeing this headline out of San Antonio - "Chief fires lieutenant again after his 15th suspension" - reminded me of a recent story out of Oregon about the near impossibility of firing police officers in Portland. Queried the Oregonian, "just what does it take to discipline a Portland police officer?" Answer: "Frankly, if push comes to shove and it goes to arbitration, you can’t do it."

RELATED: What does it take to get a bad cop fired in civil service cities?

ALSO: See another recent item from Simple Justice on arbitration overturning a firing for excessive force in Oklahoma.

Private psych hospital born of back-room deal fined, investigated

The Austin Statesman's Andrea Ball has a feature today on the GEO Group's public-private psych hospital in Montgomery County, which opens:

Sixteen months after the Montgomery County Mental Health Treatment Facility opened in Conroe, the state's first publicly funded, privately run psychiatric hospital is facing at least $53,000 in state fines for serious shortcomings in patient care.

The private operator, Geo Care, is a subsidiary of Geo Group, a private prison company that has drawn attention in recent years because of deaths, riots and sexual abuse at some units in Texas and other states. ...

Meanwhile, the facility's construction, by a different firm, is the target of a separate federal grand jury inquiry.

The new facility has been much cheaper than state-run hospitals, according to initial reports, but reviews by the Department of State Health Services has criticized the facility for problems "including unauthorized restraint and seclusion of patients, incomplete medical records, failure to show patient consent for medications and failure to report serious injuries to the state."

Grits agrees Texas needs more state mental hospital capacity, but given the company's record, the GEO Group partnering with county government would be among the last ways I'd advocate providing that extra capacity. There's a chance, though, that the GEO Group could become even more involved in managing Texas mental hospitals if the state privatizes one of its facilities:

The problems come to light as the Department of State Health Services prepares to privatize one of the 10 public psychiatric hospitals it oversees. If Geo Care bids on the ongoing privatization effort — and it has expressed interest to public officials in doing so — its work in Montgomery County could be a harbinger of what taxpayers can expect if a for-profit company wins control of a public state hospital.

This week, the agency will accept bids from contractors seeking to run one of those facilities for at least 10 percent less than the current cost, a move that could save the state millions of dollars each year. If an offer is accepted, a private company could be running a state hospital by the end of the year.

Finally, Ball reported on an investigation into possible improprieties in the Montgomery County hospital's construction:

In September 2009, Montgomery County commissioners hired Alliance Development Inc., to build the hospital. The Shenandoah-based company also constructed the Joe Corley Detention Facility, which is owned by the county and is run by Geo Group. It opened in August 2008.

Now, the construction of the jail and the hospital are part of a federal grand jury investigation. In May, the U.S. attorney's office in Houston issued a subpoena to the county, asking for records, contracts, subcontracts and other information related to the development of those projects. They also wanted to know how the county chose Alliance Development for the jobs.

The possibility of insider baseball on the contract jibes with the secretive origins of the facility. Funding was approved in 2009 as a last-minute addition to the state budget, added in conference committee even though DSHS hadn't asked for it and neither legislative chamber's budget included the measure. So this project had no public vetting by the Lege on the front end and hasn't operated up to state standards since it opened.

No doubt, Texas needs more forensic beds at state mental hospitals, but this back-room privatization deal was more about pork than policy. I'm not surprised things haven't gone smoothly.

Global banks' role in money laundering probed, but mostly tolerated

A global bank awash in blood money from Mexico's drug wars was called on the carpet in Congress last week, but the episode only highlighted the relative futility of existing anti-money laundering efforts.

The Senate Homeland Security and Governmental Affairs Committee's Permanent Subcommittee on Investigations last week released a massive report (large pdf) on money laundering and held a hearing on the subject, highlighting in particular massive alleged money laundering at HSBC, a $2.5 trillion bank based n London with global affiliates including in Texas. Here's a press release from the subcommittee, here's the hearing page.

David Cohen, Undersecretary for Terrorism and Financial Intelligence, US Treasury Department (testimony here), told the subcommittee that, "by any estimate, the total amount of illicit money moved through and concealed within the U.S. financial system is massive—in the hundreds of billions"

"In one case, failure to effectively monitor foreign correspondent banking relationships with high-risk customers and file suspicious activity reports (SARs) resulted in the processing of $420 billion in cross-border financial transactions with thirteen high-risk Mexican casas de cambio from 2004-2007, through wire transfers, bulk cash and pouch and remote deposits, including millions of dollars subsequently used to purchase airplanes for narcotics traffickers." Said Cohen, "the United States government has instituted criminal fines and forfeitures totaling more than $4.6 billion in approximately 20 ... criminal prosecutions of financial institutions over the past 6 years."

Leigh Winchell, Assistant director of investigative programs, ICE (testimony here), updated the committee on a relatively new initiative based out of El Paso aimed at reducing bulk cash smuggling:

On August 11, 2009, [ICE] officially launched the National Bulk Cash Smuggling Center (BCSC), in cooperation with the El Paso Intelligence Center, as a 24/7 investigative support and operations facility. The BCSC has undertaken a full assessment of the bulk cash smuggling threat and developed a strategic plan to address the problem. By analyzing the movement of bulk cash as a systematic process, HSI develops enforcement operations specifically designed to combat the various methodologies currently employed by trafficking organizations. This targeted approach allows us to more efficiently and effectively utilize our interdiction and investigative resources.

Compared to the hundreds of billions being laundered, though, the bulk-cash center deals in small change: "Since its inception, the BCSC has initiated over 500 criminal investigations resulting in 132 seizures totaling $65.8 million. These investigations have culminated in 319 criminal arrests, 96 indictments, and 68 convictions in both Federal and state courts." The most significant federal effort against bulk cash smuggling, dubbed Operation Firewall, resulted in "6,700 seizures totaling more than $621 million, and arrests of over 1,400 individuals" over the last seen years - hardly a rounding error given the illegal drug industry's enormous gross revenue.

Winchell did mention a positive change in Mexican banking regulations:

One of the most significant developments in recent years was a change in Mexican banking regulations implemented in June 2010 that severely limits the amount of U.S. dollars that can be deposited within Mexican financial institutions. This change has ultimately proven to be a successful tool in combating drug trafficking and the TCOs that control the movement and smuggling of drugs by causing them to change how drug proceeds are laundered. We believe that as a result of this change, TCOs may seek to place these funds into U.S. financial institutions and then wire the proceeds back to Mexico.

So the new Mexican regs are expected to alter how money is laundered - perhaps routing the money through other countries - but nobody thinks it will prevent the practice. And of course, we must wait and see how rigorously those regulations are enforced.

Testimony of the Office of Comptroller of the Currency (see here) reminds us of charges of massive money laundering at Wachovia bank and gave a brief recap of the case. Wachovia paid $270 million in fines, penalties and forfeitures in 2010 after accepting more than $55 billion (with a "b") in laundered deposits.

The OCC found that Wachovia: (a) failed to implement adequate policies, procedures, or monitoring controls governing the repatriation of nearly $14 billion of U.S. dollar (USD) bulk cash for high risk casa de cambio (CDC) and other foreign correspondent customers; (b) failed to conduct monitoring of high volumes of monetary instruments flowing through the CDCs and other foreign correspondent accounts in the form of RDC products, consisting of nearly six million checks worth approximately $41 billion; (c) failed to conduct adequate levels of due diligence of high risk CDC and foreign correspondent customers; (d) failed to appropriately monitor traveler’s checks in a manner that was consistent with the bank’s policy limits over sequentially numbered traveler’s checks for high risk CDC customers; (e) failed to appropriately institute risk-based monitoring of the bank’s foreign correspondent customers, primarily as a result of placing too much emphasis on staffing considerations when setting alert parameters; (f) failed to file timely SARs involving suspicious transactions conducted through certain foreign correspondent accounts at the bank; and (g) failed to adequately report cash structuring activity from review of alerts generated in the bank’s Financial Intelligence Unit. After conducting a voluntary look back, the bank filed over 4,300 SARs involving suspicious transactions conducted through the bank by CDCs and high risk foreign correspondent customers.

Keep in mind that when banks launder money, they're not just clipping a small fee like the bulk-cash smuggler taking money to Mexico in a suitcase. Like other deposits, they're able to loan and invest that money as though it's their own. If Wachovia (which has since been purchased by Wells Fargo) earned greater than a one-half of one percent return on those illegal deposits, then they still made profit from the enterprise despite the fines and forfeitures. Such enforcement actions basically amount to an acceptable cost of doing business.

It was evidence from the Wachovia case, said the Comptroller, that led federal officials to begin investigating HSBC. Reported the UK Guardian, "HSBC continued to operate hundreds of accounts with suspected links to Mexican drug cartels, even after ... executives were told by regulators that HSBC was one of the worst banks for money laundering." The bank was singled out at the hearing not because they're the only ones engaging in such activities, but as a "case study." Who knows what's happening at other, similar institutions?

According to the report, "A senior HSBC executive told the Subcommittee that HSBC acquired its U.S. affiliate, not just to compete with other U.S. banks for U.S. clients, but primarily to provide a U.S. platform to its non-U.S. clients and to use its U.S. platform as a selling point to attract still more non-U.S. clients." In particular, HSBC bought a Mexican bank in 2002 which had virtually no anti-money laundering controls in place and treated it as a "low risk" affiliate until 2009. The bank does not closely apply anti-money laundering controls to transactions from countries with medium or low risk assessments.

Banking regulations enacted so far are inadequate to prevent the same thing from happening again. Said the subcommittee report, "the money laundering risks associated with correspondent banking have not been eliminated. Correspondent accounts continue to provide a gateway into the U.S. financial system, and wrongdoers continue to abuse that entryway."

It's worth mentioning that HSBC's compliance failures went beyond Mexico, Latin America and the drug trade. "From 2001 to 2007, HSBC affiliates sent almost 25,000 transactions involving Iran worth over $19 billion through HBUS and other US accounts, while concealing any link with Iran in 85 per cent of the transactions." The bank proactively deleted references to Iran from documents, presumably to conceal the transactions from regulators.

Like Wachovia before it, Grits suspects HSBC will receive a relative slap on the wrist, at most, probably as part of a deferred prosecution agreement which prevents individuals involved from being held accountable. So HSBC's shareholders take a minor hit, but that was more than made up for by profits made from illicit deposits and money transfers over the last decade.

Ironically, HSBC was one of the few global banks that did not experience a major liquidity crisis in 2008: Perhaps now we know why.

Ramping up drug war wrong approach to East Austin crime

The Austin Statesman this morning published an op ed by yours truly on the failure of drug-war based crime fighting strategies in Central East Austin, arguing that arresting hundreds of people on drug charges hasn't worked to eliminate open air drug markets, has produced severe unintended consequences, and doesn't directly attack the types of crimes folks in the neighborhood are most concerned about. See related, recent Grits posts here and here.

Austin police monitor finally doing its job, but still a poor substitute for transparency

After years of inactivity and malaise under previous management, Austin's Office of the Police Monitor (OPM) has been much more active under former Travis County Sheriff Margo Frasier, and this week produced its latest annual report. I may have more to say later on the subject, but wanted to provide the link (pdf) and point to brief, initial Statesman coverage, which highlighted the OPM's finding that "One out of every eight traffic stops involving a black Austin resident included a police search, compared with one out of 28 times for white residents." However, said the report (p. 16), "Despite the percentage of searches, there is virtually no difference in the likelihood of contraband being discovered within the three groups."

Frasier has made this office about all it can be, actually performing all the tasks (including publishing this report so the public can glimpse into the process) that most of her predecessors inexplicably failed to accomplish. Whether or not the toothless agency can make a difference by merely pointing out problems (often behind the scenes) and making much-resisted recommendations, at least Frasier is doing those things. That hasn't always been the case.

One interesting thing to see is how seriously complaints by police officers against other officers are taken compared to those from civilians. Officers complaints were sustained 83% of the time in 2011 compared to 20% of civilian complaints (and that 20% figure was up from 10% and 11% in '09 and '10 respectively).

Where you really see the difference, though, is in punishments. Police officers in Austin are FAR more likely to be punished based on a sustained complaint from a fellow officer than a member of the public. See tables 27 and 28 on pp. 50-51 of the report (pdf), for example, which inform us that 272 disciplinary actions resulted from police officer complaints against colleagues, compared to just 43 resulting from complaints from the public* (see below).

So the public's complaints are less likely to be sustained and when they're sustained they're less likely to result in disciplinary action than if misconduct were reported by a fellow officer. Perhaps this is because Internal Affairs thinks officers have more credibility, or maybe when officers show up to complain they do so with better evidence. But for whatever reason, officers' complaints have much more juice.

As one might expect, just a few officers are generating a disproportionate number of complaints from the public. "When aggregating the complaints brought by members of the public against officers within the 2007‐2011 timeframe," said the report (p. 64), "the OPM found that 19% of officers [who received External complaints in 2011] had just a single complaint; the remaining 81% had two or more complaints." Indeed, "There were twelve (12) officers who had ten or more complaints (i.e., External Formal complaints and Supervisory Inquiry complaints). A full 52% of the officer complaints comprise officers with 2, 3 or 4 complaints each."

Grits should remind readers that because of amendments to state civil service laws passed at the Lege by police unions in the '80s, cities like Austin that opted into the civil service code decades earlier now for the most part have completely closed records about police misconduct: Only summary information is available about discipline under open records, and then only if the officer was suspended for two days or more. By contrast, much more detailed information would be available about the same misconduct by a deputy at the Travis County Sheriff's Office, or at non-civil service agencies like police departments in Dallas, El Paso, and hundreds of others.  The records blackout on police misconduct at Texas' 70 or so civil service cities does citizens in those towns a great injustice.

That early carve-out from the Open Records Act is part of the reason, for all its faults, that Austin's Office of the Police Monitor was created in the first place. But frankly, even in full flower under Margo Frasier's leadership, it's a poor substitute for actual transparency.


*Some officers may receive more than one disciplinary action in response to multiple allegations in a single case, so those numbers don't equate to the total number of officers disciplined. See the caveats on p. 50 of the report.

Texas' decision to reject Medicaid expansion quickens trend toward using justice system as mental health substitute

Grits has been further pondering the implications of recent national health care politics on the criminal justice system, now that Gov. Rick Perry and Lt. Governor David Dewhurst have both said they'll oppose expansion of the state Medicaid program to cover Texans with incomes up to 133% of federal poverty levels, even though the feds would pay 100% of costs for the first three years, and 90% of costs after 2019.

Obviously this means the Texas prison system won't be taking advantage of possible state-budget savings from pawning off prisoner hospital costs on the feds. But the more I consider it, the implications for the justice system from this ill-considered political stance are profound and much more far reaching, particularly as it regards the use of jails and prisons as a substitute for funding a more robust community-based mental health system.

At Monday's House County Affairs hearing, Chairman Garnet Coleman noted the irony in response to testimony by witnesses regarding the effectiveness of Veterans Courts, which are essentially mental-health courts aimed at current and former military members. Citing the example of a mentally ill veteran coming back from Afghanistan who, as a civilian, earned less than 133% of the poverty rate, Coleman noted such a person could essentially gain access to mental health services only by committing a crime.  (The Department of Veterans Affairs provides some services, he noted, but nothing like those needed for someone with a chronic, serious mental illness.) By rejecting Medicaid funds, said Coleman, the state would strip away options for indigent veterans and everybody else below the 133% threshold to access treatment services outside the justice system.

His comments got me thinking: The biggest implication for the criminal justice system from rejecting Medicaid funds really stems from the missed opportunity to attract billions (with a "b") in new funding for mental health services that would be delivered outside the criminal justice system.

This would be huge. When discussing the problems posed by the criminalization of mental illness, there's bipartisan acknowledgement that the justice system isn't the best vehicle for providing mental health services. But it's all we've got for now, the fatalists lament, and if one wants to suggest expanding community-based mental-health services, the first response is always "show me the money." Heck, last session legislators even cut mental-health budgets in prison, much less community-based services. With the opportunity to expand Medicaid services on the table - and the feds paying for ALL of it for the first several years, 90% after 2019 - the money to pay for indigent mental services is now officially available. State leaders only need say "yes."

Without such an influx of community-based mental health funds, indigent mental-health care costs will continue to plague county jails and local emergency rooms. Other testimony at Monday's House County Affairs hearing mentioned that, while the overall Bexar County jail populations is declining (as is happening to various degrees across the state), demand for mental-health beds is the one category that continues to increase, straining capacity. And their experience is a microcosm of what's happening statewide.

The reasons are obvious. Texas has under-invested in mental-health care to the point that the state faces a court order declaring long wait times for forensic hospital beds unconstitutional. Mentally ill inmates in jails cost much more than the per-inmate average and pose unique procedural challenges resulting from the justice system's inability to constructively deal with them. The decision to reject billions in community-based mental health funds for the indigent only exacerbates the problem.

House County Affairs Committee examines jail overcrowding, homelessness and substance abuse

I listened this afternoon to yesterday's House County Affairs Committee's hearing on their interim charge to "Conduct a general study of issues facing county jails." The charge specified that "The study should include innovative ways to address overcrowding, the impact homelessness has on the county jail population, and recommendations for handling inmates undergoing detoxification and withdrawal from drugs and alcohol."

Here's a summary of important or interesting items that stood out from my notes. Your mileage may vary. Those who'd like to watch the hearing for themselves can do so here. The interim charge on county jails begins at the 3:57:50 mark.

Texas should conduct review of hair and fiber forensics comparable to feds

Excellent news for those concerned with the lack of rigor in certain forensic science disciplines, this time hair and fiber analysis. The Washington Post reported last week ("Justice Department, FBI to review use of forensic evidence in thousands of cases," July 10) that:

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said.

The review comes after media reports alleging that the agencies had known of flawed hair and fiber analyses and covered it up. Here's a little more detail

The Post reported in April that hair and fiber analysis was subjective and lacked grounding in solid research and that the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate. But bureau managers kept their reviews limited to one agent, even as they learned that many examiners’ “matches” were often wrong and that numerous examiners overstated the significance of matches, using bogus statistics or exaggerated claims.

Details of how the new FBI review will be conducted remain unclear. The exact number of cases that will be reviewed is unknown. The FBI is starting with more than 10,000 cases referred to all hair and fiber examiners. From those, the focus will be on a smaller number of hair examinations that resulted in positive findings and a conviction.

It also is unclear whether the review will focus only on exaggerated testimony by FBI examiners or also on scientifically unfounded statements made by others trained by the FBI, or made by prosecutors. Also unclear is at what point government officials will notify defense attorneys or the Innocence Project.

In past reviews, the department kept results secret and gave findings only to prosecutors, who then determined whether to turn them over to the defense.

To my knowledge the FBI has only done this one other time, and then they didn't do it very well, and certainly not quickly: When actual science demonstrated that FBI experts had been falsely claiming for years that they could differentiate bullets by their lead content (e.g., "this bullet came from the same batch at the factory as the ones found in the possession of the defendant"), they had to retract the testimony and systematically identified every case in which it'd been used, leading to several cases being overturned.

But lead-content testimony was relatively uncommon: The number of times it was used at trial ran to less than 200. Hair and fiber analyses have been much more common for much longer and done at labs across the country, not just at the FBI. Will other crime labs now begin similar reviews? There's no requirement they do so, and really no process for it.

Texas, to its credit, in some ways pioneered the concept that old cases need to be comprehensively reviewed when forensic errors are found. The watershed moment perhaps was Dallas DA Craig Watkins partnering with my employers at the Innocence Project of Texas (IPOT) to review old DNA cases and recommend which ones deserved testing, a process that led to numerous high-profile exonerations and landed Watkins a feature on 60 Minutes and other national acclaim.

Similarly, the Forensic Science Commission and State Fire Marshall have partnered with IPOT to review  arson cases of people currently incarcerated in TDCJ for errors that may have led to false convictions. And after incompetent drug analysts were discovered in El Paso and at a DPS lab in Houston, the agencies systematically notified defense counsel. After the incident in Houston, the DA's Association recommended that "For any case with a bad retest, or cases with now-destroyed evidence, [prosecutors should] request that the court appoint an attorney to take the case through a writ process if appropriate."

Still, though, that's happening only on an ad hoc basis. Fort Bend Sheriff's Deputy Keith Pikett for years used highly suspect techniques in "scent lineups" which Texas courts have now disavowed. Even so, Pikett claimed to have performed scent lineups with his dogs in more than 2,000 cases and testified in court many times, but there's been no official review - by the Fort Bend Sheriff, the Texas Attorney General, the Forensic Science Commission (outside their jurisdiction), or anyone else.

In this case, analysts from Texas crime labs including at DPS testified for years about hair and fiber evidence in similarly overstated ways as the FBI, recently reining in the language they use in court and relying more where possible on much more accurate DNA evidence. Pretty much everybody agrees such overstated analyses were both problematic and used for a long time. But there's no state-level review of hair-and-fiber testimony in past cases comparable to what's happening at the FBI, neither here in Texas nor to my knowledge in other states, even though it's obvious the same issues extend far beyond FBI analysts.

Grits has long insisted there needs to be a mechanism - arguably at the Forensic Science Commission, with expanded jurisdiction - for reviewing old cases when the science behind long-used forensics are called into question or debunked. We're starting to do that when new forensic errors arise, but for the most part haven't addressed the lingering old ones like flawed or overstated hair and fiber testimony. It's time to start.

See prior, related Grits posts:

• Texas needs process to vet cases based on forensic hokum
• What is state duty to inform defendants of flawed forensics in old cases? 
• What is the duty to notify defendants of past crime lab errors?
  
• Forensic commission urges review of old arson cases based on junk science
• The politics of reexamining flawed arson foresics 
• If arson science in Willingham case was 'flawed,' what about other, similar cases?
• How best to vet old arson innocence claims?
• Faulty hair forensics used to convict executed defendant
• Hair analysis technique that was 'judicially accepted for decades' called 'highly unreliable'