Thursday, February 28, 2013

Half of law enforcement requests for personal cell-phone data involve only a supboena

KUT-News today has a story on bills related to location tracking by law enforcement, including companion bills HB 1608/SB 768 by Rep. Bryan Hughes and Sen. Juan "Chuy" Hinojosa, respectively. That legislation would require a warrant for law enforcement to access location data from cell phones and other mobile electronic devices except in emergencies and in cases involving devices reported stolen. Presently location data may be obtained with only a subpoena, in which case no judge will even know about the request unless it's later admitted into evidence. (Current law treats such information as third-party business records over which, it is presumed, cell-phone customers have no reasonable expectation of privacy.)

The piece also highlights a pair of bills headed in the other direction by state Rep. Allen Fletcher who "introduced a bill, H.B. 1322, that would keep ... warrants [for mobile tracking devices] sealed. And another, H.B. 919, that would prevent freedom of information requests from revealing the movements of uniformed and undercover officers." Wrote KUT's Mark Dewey:
That has the Texas Association of Broadcasters--of which KUT is a member--worried. The TAB’s Michael Schneider says the so-called “law enforcement exception” that allows governments to deny freedom of information requests is used too much already. 

"The public needs to be able to determine for themselves whether or not law enforcement is following proper procedures, whether the investigation actions are justified, and if you remove information from that process, the public is kept in the dark, " Schneider said.

Matt Simpson is with the American Civil Liberties Union of Texas. He monitors bills in the Texas legislature and makes sure the ACLU's point-of-view is heard. He’s more concerned about another tracking device that tracks almost everyone – almost constantly: Your cell phone.

"Our cell phones put a signal out to towers as we move around and this creates a digital log of where you’ve been," Simpson said.

He says police don’t need a warrant to get your location records from your cell phone company. They just  file a sealed subpoena and get whatever location records they want. There’s no judge involved.
A rep from the Austin Police Department complained about "burdensome reporting requirements" in Hughes and Hinojosa's bill, which are modeled after reporting requirements involving wire taps and pen registers already required in the law. But without such reporting, it would be impossible for the public to know the scope of police surveillance activities.

This evening Grits spent a little time examining responses by cell phone companies to a Congressional inquiry last summer and found that the majority of requests by law enforcement for their customers' data involved only a subpoena, not a warrant or other court order. Not every company broke out their data completely, but AT&T reported that 50.3% of law enforcement requests in 2011 involved subpoenas only, Verizon said the figure for that year was "about half," as did T-Mobile. US Cellular reported 53.3% of law enforcement requests that year were based on subpoenas.

AT&T's letter in particular provided some interesting data. Requests involving warrants increased 35% from 2007 to 2011, while requests involving subpoenas grew 108% over the same period. "Exigent" or emergency requests - which require no warrant - grew at an even greater clip . The larger category of exigent requests involved 911 calls. AT&T responded to 65,500 such requests in 2011, which was 182% more than in 2007. But an even greater growth rate was seen in "exigent" requests that did not involve 911 calls. That category grew by a whopping 667% from 2007 to 2011, from 1,800 to 13,800, representing the highest growth rate among request types broken out by the company. One wonders, given that rapid growth rate, if claims of exigency are being exaggerated and/or overused.

AT&T also included its 2010 price list detailing how much it charges law enforcement for customer data. Their "mobile locate" service costs a $100 setup fee and $25 per day per number, with an additional $100 fee if the agency wants email updates on location more frequently than once per day. It costs $75 per hour for "detailed cell site coverage maps." "Data orders," "content orders," and "packet data" each involve a $325 setup fee and a $5 per day fee for data orders, $10 per day for the other two. They charge $50 just to tell police if a customer changed their billing address. Sprint's charges to law enforcement were quite a bit lower. The other vendors did not provide such a detailed breakout.

According to the responses by cell phone companies to Congress, law enforcement made more than 1.3 million requests in 2011 for cell-phone customer information, most often involving no judicial oversight at all. Police just issued a subpoena, paid a fee, and the companies conveniently emailed them their customers' data.

The rapid expansion of law enforcement requests for cell-phone location data and other customer information to me justifies increased reporting and judicial oversight. We'll find out as the session goes forward if the Texas Legislature agrees.

Help Grits pay for electronic privacy coverage

Time to ask for Grits readers' assistance to raise funds for extraordinary blog expenses. Regular readers know legislation has been filed in both the Texas House and Senate to require a warrant for law enforcement to access location tracking data from cell phones and other personal electronic devices without a warrant - a topic which Grits has covered more aggressively than any media outlet in the state. This weekend I'll be attending a conference on that topic in Connecticut at the Yale Law School with a spectacular-looking lineup of speakers and experts, but along with several recent open records requests, the cost has exceeded what's available in Grits' tip jar (i.e., contributions via the Pay Pal buttons in the right-hand column).

If you find Grits' coverage of electronic privacy issues and other criminal-justice topics useful, please make a donation to help with expenses for the trip. I need to raise about $800 to cover all expenses. Either donate via Pay Pal using the button below or shoot me an email at shenson[at] if you'd prefer to mail a check. When I return I'll write up what I've learned and everyone benefits.

Until then, thanks for reading and thanks in advance for your help.

Sequester effects on federal prisons, immigration detention

Grits finds the expressed outrage over releasing immigration detainees because of the looming sequester misplaced. Texas Congressman Lamar Smith took the opportunity to take a politicized swipe at the Obama Administration, declaring it “either incompetent and unable to prioritize spending, or reckless. Neither is acceptable.” Ironically, though, prioritizing spending is precisely what's going on here ... for once.

The episode made me think of the panel on immigration detention your correspondent moderated at the UT LBJ-School last fall where former state Rep. Jerry Madden, who before this session chaired the House Corrections Committee, argued for saving money by limiting detention of asylum seekers and low-risk immigration detainees, urging the feds to adopt lessons on saving money spent on incarceration that drove Texas' 2007 probation reforms. That's exactly what's happening now thanks to fiscal necessity rather than good public policy. But sequester-imposed austerity makes the important point that immigration detention is not free - even if borrowed budget dollars at times make it seem as though spending on it is unlimited - and is now forcing the feds to engage in cost-benefit analyses regarding which immigrants should be incarcerated while they wait for backlogged courts to process cases.

More concerning than the politicized debate over low-risk immigration releases are the $338 million in cuts to the federal Bureau of Prisons, which has no authority to increase releases to accommodate its reduced budget. According to Business Insider:
The Bureau oversees 188 facilities and contracts 16 facilities out to private prison companies. Currently, there is a grand total of 217,249 inmates in the federal prison system, a number BOP  expects to rise to 229,300 by the end of 2013. In 2012, the BOP had a budget of $6.6 billion, with 41,310 employees. Correctional officers make up around half of the staff, with 19,756 employees in 2012. 

According to DOJ, the sequester budget cuts will result in 5 percent reduction in the Bureau's workforce, which will be achieved by freezing future hiring and furloughing 36,700 staff for an average of 12 days. This means that almost every employee will have to go home without pay for some time, leaving BOP to function at unnecessarily low security levels. 

Attorney General Eric Holder indicated that this reduction in force would endanger the lives of staff and inmates. 

According to the Attorney General, the BOP will have to implement full or partial lock downs across the board. In a letter to Senate Appropriations Chair Barbara Mikulski (D-Md.), Holder said "This would leave inmates idle, increasing the likelihood of inmate misconduct, violence, and other risks to correctional workers and inmates."

Complicating all of this is the fact that the federal prison system is already severely over capacity.
According to the 2012 Justice Department annual report, the system is 38 percent overcapacity, a problem that the Department has identified as a major weakness.
Holder has said the Department of Justice will be forced to cancel funding for rehabilitation programs and staffing, but, "To be blunt, sequestration means less money, not fewer inmates." The immigration system can safely adjust to lower funding levels. The federal prison system, OTOH, will be screwed six ways from Sunday.

Wednesday, February 27, 2013

'Cassandra-like' hearsay testimony wasn't harmless error, says TX Court of Criminal Appeals

"A witness who testifies to what the murder victim said before her death frequently gives extraordinarily powerful testimony," Texas Court of Criminal Appeals Judge Cathy Cochran wrote in a concurring opinion overturning the capital murder conviction of defendant Jason Payne. "The jury hears the victim's Cassandra-like voice rising from the grave predicting her own death, detailing past abuses, and pointing the finger of blame at the defendant." Problem is, wrote Cochran, the defendant victim "cannot now be asked about her words and their context. This is an example of classic inadmissible hearsay."

Judge Michael Keasler issued the opinion of the court granting Payne a new trial, overruling the lower court's judgment that the admission of hearsay testimony was "harmless error." (Judge Larry Meyers dissented in a very brief opinion.) Keasler argued that, although it was possible a jury would have convicted Payne without hearsay testimony from her friend alleging marital troubles and past death threats, the "statements most likely had a telling effect upon the jury." "While the totality of the evidence is legally sufficient to sustain Payne's capital murder conviction," he wrote:
it was certainly not overwhelming. The jury's verdict was primarily supported by the cumulation of arguably weak circumstantial evidence. There were no eyewitnesses; nor was there forensic or direct evidence clearly linking Payne to the deaths.

In light of the absence of direct evidence linking Payne to the deaths combined with the statements' indelible character, it is likely that these statements influenced the jury's assessment of the State's circumstantial evidence, the inferences drawn from that circumstantial evidence, and its resolution of the considerable amount of conflicting "battle of the experts"-type testimony in the State's favor.
Before the ruling, Payne had been serving a sentence of life without parole for the alleged 2007 murder of his wife and stepson. See a web page on the case maintained by the group Advocates 4 Wrongfully Convicted.\

MORE: From the Tyler Morning Telegraph which mentioned that:
Smith County Sheriff Criminologist Noel Martin told the Tyler Morning Telegraph during an interview in July 2011 that there was never any motive for a double homicide and that the evidence he had seen did not point toward anything but a murder-suicide.

Martin was at the scene the day of the shootings and later contracted to complete an in-depth forensic over-view.

Conviction overturned based on DPS lab worker misconduct, hundreds more likely to be challenged

Hundreds of drug cases will likely be overturned via habeas corpus writs after it was revealed last year that DPS lab analyst Jonathon Salvador fabricated results while testing a batch of Alprazolam tablets. (See Grits' earlier discussion of the case, "Bad apple at DPS crime lab could spoil barrel of convictions.") In a per curiam opinion, the Texas Court of Criminal Appeals today overturned the conviction of Junius Sereal out of Galveston because evidence in the case had been destroyed and therefore cannot be retested. From the opinion:
Applicant contends that his due process rights were violated because a forensic scientist did not follow accepted standards when analyzing evidence and therefore the results of his analyses are unreliable. The State and the trial court agreed that relief was warranted before remand, but the record was insufficient to decide the case at that time. This Court remanded the application to obtain more information. Specifically, the Court needed three additional pieces of information to resolve this case: (1) a copy of the Department of Public Safety (DPS) report Applicant was relying on for his claim; (2) a determination that the lab technician named in that report was the only scientist that worked on this sample; and (3) a finding as to whether the sample was destroyed or could be retested. The trial court has now provided this Court with all the information necessary to resolve this case on the merits. The DPS report shows that the lab technician who was solely responsible for testing the evidence in this case is the scientist found to have committed misconduct, and the evidence in this case has been destroyed and therefore cannot be retested. Applicant is therefore entitled to relief.
Relief was granted in another Galveston case, as well, in a non-published opinion. What's most astonishing: At a meeting of the Forensic Science Commission last month, it was estimated that evidence had similarly been destroyed in 25-50% of the nearly 5,000 cases the now-terminated lab analyst had worked on, meaning hundreds more cases  may be overturned before all is said and done. The analyst performed tests in cases from 36 counties - 1,281 of them from Montgomery County alone.

This story hasn't received much traction in the MSM so far, mainly because the big papers no longer routinely send reporters to cover the activities of the Texas Forensic Science Commission, which has been reviewing details of the episode. I'll bet that changes, though, now that defendants are starting to walk out of prison based on the lab worker's alleged incompetence. What a fiasco!

Nuther dog-scent lineup case overturned; how many more are out there?

The Texas Court of Criminal Appeals has overturned another convictions based on dog-scent "lineups" performed by now-retired Fort Bend County Sheriff's Deputy Keith Pikett, the Texas Tribune reported. See the majority opinion by Judge Cathy Cochran overturning Megan Winfrey's conviction and a dissent by Presiding Judge Sharon Keller. The defendant's father's conviction stemming from the same incident was overturned 2-1/2 years ago.

Notably, no one has ever compiled a comprehensive list of cases where Deputy Pikett's testimony and his dogs' scent lineups were introduced as evidence, though at one point he claimed to have worked on more than 2,000 cases.

MORE: YNN-Houston reports that, unless the District Attorney refiles the case,Winfrey will be released on March 25.

See also prior, related Grits posts:

Prosecutor: Blacks and Hispanics with money? Must be drug dealers

SCOTUSBlog brings word of a federal case originating in Texas in which a prosecutor made an improper, race-based argument, earning him a stern rebuke from the newest US Supreme Court justice:
The comments by Justices Sotomayor and Breyer on a Texas prosecutor’s racial remarks in a drug conspiracy trial came as the Court denied review in Calhoun v. United States (docket 12-6142).   The two Justices did not dissent from that denial, but said they were commenting “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutors’ racially charged remark.  It should not.” ...

At the trial of Bongani Charles Calhoun, who is African American, the issue of his intent came up when he was being cross-examined by a prosecutor.  Calhoun had contended that he did not know what was going on when a friend arrived at their hotel room with a bag of money, and had said that he did not want to be there.

Here is what Sotomayor’s opinion said happened next: “The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room.  Eventually, the District Judge told the prosecutor to move on.  That is when the prosecutor asked, ‘You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money.  Does that tell you — a light bulb doesn’t go off in your head and say, This is a drug deal?’ ”

The two Justices went on to criticize not only the prosecutor, but also Calhoun’s defense lawyer for failing to object, as well as Justice Department lawyers for their response.  When the case was on appeal to the Fifth Circuit Court, Sotomayor wrote, “the government failed to recognize the wrongfulness” of the prosecutor’s question, calling it “impolitic.” Belatedly, Sotomayor wrote, the U.S. Solicitor General had called the remark “improper” as the case unfolded in Supreme Court filings.

Sotomayor commented: “It is deeply disturbing to see a representative of the United States resort to this base tactic more than a decade into the 21st Century.”

The two Justices did not dissent from the denial of review, concluding that the Court was right because Calhoun and his lawyer had forfeited the arguments they could have made in lower courts and in their Supreme Court petition.
Go here to read Sotomayor's full statement. Ken at Popehat identified the prosecutor in question as Assistant US Attorney Sam L. Ponder of Texas' Western District in San Antonio. Talking Points Memo (TPM) identified Calhoun's defense attorney at trial, the one who failed to object, as Jay Moritz, who now says he "probably should have asked for a mistrial." TPM added that, "A spokesman for the U.S. Attorney’s Office ... said the incident was referred to the Office of Professional Responsibility at the Justice Department but declined to comment further. The Office of Professional Responsibility is the Justice Department’s internal watchdog tasked with investigating allegations of misconduct involving DOJ attorneys. The Justice Department has not responded to requests for comment about Sotomayor’s statement."
The Supreme Court’s refusal to hear the appeal by Danielczyk and Biagi means that the case will now return to lower courts, either for trial or for a plea.   In their petition, the two contended that the Citizens United decision requires that the flat ban on corporate contributions be struck down.  As usual, the Supreme Court offered no explanation in denying review.
The comments by Justices Sotomayor and Breyer on a Texas prosecutor’s racial remarks in a drug conspiracy trial came as the Court denied review in Calhoun v. United States (docket 12-6142).   The two Justices did not dissent from that denial, but said they were commenting “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutors’ racially charged remark.  It should not.”
At the trial of Bongani Charles Calhoun, who is African American, the issue of his intent came up when he was being cross-examined by a prosecutor.  Calhoun had contended that he did not know what was going on when a friend arrived at their hotel room with a bag of money, and had said that he did not want to be there.
Here is what Sotomayor’s opinion said happened next: “The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room.  Eventually, the District Judge told the prosecutor to move on.  That is when the prosecutor asked, ‘You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money.  Does that tell you — a light bul doesn’t go off in your head and say, This is a drug deal?’ ”
The two Justices went on to criticize not only the prosecutor, but also Calhoun’s defense lawyer for failing to object, as well as Justice Department lawyers for their response.  When the case was on appeal to the Fifth Circuit Court, Sotomayor wrote, “the government failed to recognize the wrongfulness” of the prosecutor’s question, calling it “impolitic.”   Belatedly, Sotomayor wrote, the U.S. Solicitor General had called the remark “improper” as the case unfolded in Supreme Court filings.
Sotomayor commented: “It is deeply disturbing to see a representative of the United States resort to this base tactic more than a decade into the 21st Century.”
The two Justices did not dissent from the denial of review, concluding that the Court was right because Calhoun and his lawyer had forfeited the arguments they could have made in lower courts and in their Supreme Court petition.
- See more at:

Whitmire: End secret state bar sanctions for withholding exculpatory evidence

State Senate Criminal Justice Committee Chairman John Whitmire filed legislation yesterday - SB 825 - that would disallow the state bar from issuing private reprimands to prosecutors who withhold exculpatory evidence from the defense. It would also cause the statute of limitations for state bar grievances alleging Brady violations (withholding exculpatory evidence) in exoneration cases to begin tolling when an exoneree leaves prison. At the Texas Tribune, Brandi Grissom quoted the head of the prosecutors' association saying DA's would likely not oppose the bill:
Polk County district attorney Lee Hon, president of the Texas District and County Attorneys Association, said most prosecutors would likely not oppose Whitmire's bill.

"Texas prosecutors are willing to discuss adjustments to the bar grievance statute of limitations where Brady violations are implicated," Hon wrote in an email. "We understand that given the nature of the non-disclosure, discovery of a Brady violation might sometimes be hard to find. At the same time, the reason that you have statutes of limitations for both criminal offenses and civil causes of action is that there comes a point in time when the ability of the person accused of the violation to defend the claim becomes significantly compromised due to the passage of time."
Chuck Lindell at the Austin Statesman noted that the bill in particular would clarify the state bar's authority to pursue its grievance against Williamson County District Judge Ken Anderson, who was the lead prosecutor in the Michael Morton case:
A state bar disciplinary committee, acting on its own initiative after news reports of Morton’s exoneration, filed a lawsuit last October accusing Anderson of violating his duty as a prosecutor by withholding evidence that could have supported Morton’s contention that an unknown intruder killed his wife.

If the accusations are upheld after a future civil trial, Anderson could be reprimanded, disbarred or temporarily lose his law license.

Anderson’s lawyers have challenged the lawsuit on several grounds, including a claim that the statute of limitations bars filing a grievance tied to the now-murky events of a quarter-century ago.

The state bar’s lawsuit is separate from a court of inquiry that convened earlier this month to examine allegations that Anderson violated state law in his handling of the Morton case. A decision in that proceeding is not expected until April at the earliest.

Morton called Whitmire’s legislation an important step in ensuring justice.

“As long as somebody is in prison as a result of fraudulent or illegal activity from an overzealous prosecutor, they shouldn’t have their ability to have their day in court taken from them,” Morton said in a statement released by the senator’s office.
Chairman Whitmire's legislation is a big improvement over current law, particularly the part eliminating secret, "private" reprimands for Brady violations by prosecutors.

On the question of when the four-year statute of limitations begins tolling, the bill would impact cases like Michael Morton's or Anthony Graves' where the defendant is finally exonerated, but that's just a small subset of Brady violations. After all, exonerations are much more rare than false convictions. The majority of Texas' exonerations have stemmed from post-conviction DNA testing. But biological evidence only exists in 10% or so of violent crimes and in many older cases it was long ago destroyed. Exonerees like Morton who actually win their freedom represent just a fraction of false convictions, but the act of prosecutors withholding exculpatory evidence should be punished whenever it arises.

Grits would prefer the statute of limitations on Brady grievances began tolling for all cases at the time the defense learns of the withheld, exculpatory evidence, whether the person is exonerated or not. But there are enough cases of Brady violations involving exonerees that the bill would still be a significant first step toward accountability and transparency.

MORE: See an editorial endorsing the bill from the Austin Statesman.

Tuesday, February 26, 2013

Sympathetic reception for bill allowing health insurance for exoneree dependents

This morning I was at the House Insurance Committee on behalf of the Innocence Project of Texas (IPOT) along with Tim Cole's brother, Cory Session, and seven exonerees who showed up to support HB 361 by Anchia. The bill expands a program through which exonerees could purchase the same health insurance as TDCJ employees, but which has been underutilized because their spouses and dependents weren't also eligible.

Only nine exonerees have enrolled in the program, Chairman John Smithee said when he laid out the bill on behalf of Rep. Anchia (who had been called back to attend business in his district). But exoneree Charles Chatman explained that that many of them instead were paying for health insurance for spouses and dependents and going without themselves. If they were allowed to cover immediate family members, the committee was told, more of them would participate. Several other exonerees repeated that theme and indeed, after the hearing a number of the fellows said they planned to sign up to get insurance through the program immediately if and when the bill passed.

The committee seemed receptive and sympathetic and several of them came up afterwards to shake hands and introduce themselves to the exonerees. With seeming unanimity from the dais, Chairman Smithee pledged to vote the bill out of committee next week.

Afterward we had a chance to visit with Appropriations Committee Chairman Jim Pitts outside the House chamber to thank him for the committee's recommendation to reinstate funds cut last session from innocence clinics at the four public Texas law schools. We asked him to do what he could as teh bill moved forward to expand clinic funding to allow them to hire additional support staff to manage the nearly 3,000 requests for assistance per year these clinics receive.

I can't tell you how proud I am of all the exonerees who continue to show up at the Legislature to lobby on innocence-related bills. This one benefited their families, of course, but for some it's the second time they've been to the capitol since session started and all of them told me they'd be back when the policy bills start to come up. It's incredibly humbling and a great honor to be able to work with and on behalf of such folks.

Committees begin to hear criminal justice bills

Texas legislative committees are finally beginning to consider bills, with the first criminal-justice related legislation up for hearings today and tomorrow.

This morning at 8:30 a.m., the House Insurance Committee will hear HB 361 by Anchia which would expand the ability of exonerees to purchase health insurance at state rates to their spouses and dependent children. Anyone with a family knows that having everyone covered under the same insurance policy makes lots of sense, and since exonerees are paying for the insurance out of their own pockets, there would be no fiscal impact. This is a small bill, but it's surely important to exonerees, a couple of whom I believe are coming to town to testify.

Later on, at 10:30 a.m. or after the full House adjourns, the Criminal Jurisprudence Committee will consider legislation for the the first time, though only three bills are up in their first session.

HB 61 by Guillen is an enhancement for arson, boosting penalties from a second to a first degree felony for setting fire to an agricultural facility or a state park. Readers already know how I feel about enhancements: If the prospect of a second degree felony won't deter someone, changing it to a higher penalty - that most offenders will never know was altered until they're charged - won't increase that deterrence. The bill's  "fiscal note" was deemed insignificant, though that's not really true. With prisoner health costs alone at more than $9 per day, any extra inmates incarcerated for longer stretches will cost the state more money in the long run.

HB 153 by Taylor alters definitions in the law banning sale of firearms to intoxicated persons, deleting a more general definition and adopting the same one used for drunk drivers, including a BAC level of .08. The change seems mostly nonsubstantive, though it slightly broadens the scope of firearm sale prohibition. It's unclear to me how gun sellers are supposed to know if someone's BAC is at .07 vs. .09.

HB 70 by Fletcher is perhaps the most substantive of the three, changing what attorneys refer to as "The Rule" to allow one, designated prosecution witness who may be in the courtroom while others testify. Traditionally, witnesses aren't supposed to be in the room so their testimony won't be tainted by what they hear from others. If the designated witness getting to attend the hearing is a police officer, that person would be forbidden from wearing their uniform in court. The defense side, of course, would not be afforded the same privilege. Houston defense attorney Paul Kennedy last session argued that the bill is "a solution for a problem that doesn't exist. The only purpose is to make it easier for the state to obtain convictions."

Tomorrow, the House Corrections Committee will hear bills for the first time. They too have just three bills on the agenda.

HB 144 by Raymond expands the scope of "mental examinations" of juvenile offenders to include diagnosing substance abuse.

HB 431 by Riddle (which seems like it ought to have a fiscal note, though as of this writing one hasn't been posted) would expand the categories of offenders ineligible for release under "mandatory supervision," a category which only includes offenders convicted many years ago before the Lege modified "mandatory supervision" to become (oxymoronically) "discretionary mandatory supervision" if the offense involved a child victim. That's already the case for the most serious offenses. Riddle's bill would expand the prohibition to second and third degree felonies, forcing TDCJ to incarcerate those individuals longer. Hard to see how that wouldn't have a budget impact.

HB 634 by Farias would require TDCJ to verify inmates' veteran status via lists held by the Health and Human Services Commission and assist them (presumably upon reentry) with applying for benefits for which they may be eligible from the federal Department of Veteran Affairs. The fiscal note says there would be one-time automation costs to perform this function but suggests the duties could be absorbed in the agency's current budget.

And of course I'd already mentioned that the House Transportation Committee today will consider bills related to banning texting and/or talking on a cell phone while driving.

The game is afoot!

Monday, February 25, 2013

Texting ban pushed despite veto last session

Tomorrow, the Texas House Transportation Committee will consider several bills banning or limiting use of cell phones for talking or texting. Ironically, though you wouldn't know it from the MSM coverage, "Texting bans haven't reduced crashes at all. In a perverse twist, crashes increased in 3 of the 4 states we studied after bans were enacted," according to the Insurance Institute for Highway Safety. Shannon Edmonds at TDCAA said Friday that, of the four related bills on the agenda, "HB 63 is the one to watch; it will be amended in committee and probably voted out first." Governor Perry, regular readers know, vetoed similar legislation in 2011.

MORE: From the Austin Statesman, "A spokeswoman for Gov. Rick Perry, just hours after a tear-laden House committee hearing on a proposed texting-while-driving ban, said Tuesday that Perry continues to see education rather than regulation as the solution for the increasingly widespread but dangerous practice."

Sunday, February 24, 2013

Instapundit interviews Levin

Glenn Reynolds of Instapundit fame has an interview up at Pajamas Media from earlier this month with Marc Levin of the Texas Public Policy Foundation on overcriminalization. Check it out.

RELATED: See the latest Right on Crime update.

Cleaning out the snake pit at Williamson DA's office

This anecdote gives a good sense of why change was needed at the Williamson County District Attorney's office: "When new District Attorney Jana Duty moved into her office in the Williamson County Justice Center in Georgetown on Jan. 2, she found a dead coral snake with the head cut off in her desk drawer."

Classy, huh? Former DA John Bradley said he had nothing to do with it, and I believe him, but the episode surely says something about the office culture that surrounded him. Duty has begun to clean out the snake pit, but odds are whoever put the reptile there still works in the DA's office.

101 House members endorse bill criminalizing warrantless drone photography

Check out the list of joint and co-authors on HB 912 by sophomore Rep. Lance Gooden  of Terrell restricting surveillance by unmanned drones - four joint authors and 96 co-authors last week joined Gooden to support legislation making it a crime to use or authorize someone to use "an unmanned vehicle or aircraft to capture an image without the express consent of the person who owns or lawfully occupies the real property captured in the image." Extraordinary! That's even more people - and a much more bipartisan list - than have signed onto Rep. David Simpson's TSA anti-groping legislation (HB 80), virtually guaranteeing passage if the drone bill makes it to the House floor. Senate Criminal Justice Committee Chairman John Whitmire has reportedly agreed to sponsor it in the Senate.

The new offense would be a Class C misdemeanor for possessing such photos and a Class B misdemeanor for displaying or distributing them. There are exceptions carving out drone photos taken under the authority of a search warrant, by police in pursuits, for purposes of fire suppression, for drone use within 25 miles of the border, for drone photography without magnification, and for photos taken of people on public property.

While I'm generally not a fan of creating new crimes, Grits is broadly sympathetic to the impetus behind the legislation. Humorously, when I recently told my father about legislation by Rep. Bryan Hughes and Sen. Juan Hinojosa to require a warrant for GPS tracking of your cell phone by law enforcement, he joked that the day was coming when the state may use GPS to locate individuals then send armed drones after them to "rain death from the sky." For now, such concerns may be more applicable in Afghanistan or Pakistan than here, but the joke emphasizes that we're only just beginning to understand how all these newfangled 21st century technologies of control may work together in the future to violate rights in ways that are inconceivable today.

What remains unclear (to me, anyway) is how old court precedents related to photography and the First Amendment may apply to legislation like HB 912. After all, 101 state House members may be trumped by five US Supreme Court Justices, and traditionally courts have held that photographs of private property - even taken with magnification - are allowable if the photographer has a legal right to be in the spot where they snapped the picture. And based on those precedents, it's hard to see the distinction between photos taken by unmanned aircraft vs. a helicopter hovering over one's house with a photographer hanging out the side. For that matter, I'm not sure how the bill would distinguish between drone photography and satellite photos like those used by Google Earth.

At the same time, there are only so many manned helicopters police or news organizations can deploy at any given time, so there's a real limit on how much surveillance anyone can afford to conduct. In a future already visible from here, the number of unmanned drones that could be deployed may be essentially limitless and surveillance could be as easy as turning on your computer. Much like the GPS tracking bill, HB 912 bucks against the trend toward making surveillance ever cheaper and easier. Instead of drones, surveillance without a warrant would still require actual human beings (outside of the above-listed exceptions).

Past court precedents emphasized the First Amendment rights of the photographer over the privacy rights of those being photographed. Because freedom of the press is explicitly protected in the Constitution while privacy rights are at most implied, courts have tended to err on the side of the picture takers. But really, photography was invented decades after the First Amendment was written and the Constitution's framers could not have anticipated how it would be applied, just as judges interpreting the rights of paparazzi or police photographers in the past could not have anticipated the use of unmanned drones. How to balance those competing rights is a question which will be revisited over and over in the coming years. Whether or not this bill passes, it likely represents the beginning of a debate and not its denouement.

Saturday, February 23, 2013

Roundup: Fumbling DAs, DPS policy reversal, Harris jail won't privatize

A few odds and ends from this week's news that failed to make it into individual Grits posts:

DPS reverses policy on shooting at vehicles from helicopters
Too bad it took a tragedy. Shooting hogs from helicopters is still okay.

Harris County won't privatize jail
Too much risk and uncertain savings.

Leadership 'crisis' lamented at McLennan DA
A fumbling, petty PR strategy exacerbated the rift between the District Attorney and Waco Police Department, said the Waco Tribune-Herald editorial board.

Leadership crisis lamented at Dallas DA
Dallas DA Craig Watkins is fumbling through another alleged corruption scandal.

Immigration practicalities
See critical commentary on border security and the importance of illegal immigrants to Texas' construction industry.

The conservative case against solitary confinement
From George Will, of all people.

Friday, February 22, 2013

House Appropriations criminal justice highlights

The Texas House Appropriations Committee yesterday adopted recommendations (pdf) from its subcommittee on Article V of the budget, which covers Public Safety and Criminal Justice. Obviously the Senate Finance Committee will have their say, too, and there's a long way to go before anything is final. But here are a few highlights from adopted committee recommendations on the House side that caught Grits' eye:

Bill filed to require warrant for GPS tracking of cell phones

Woo Hoo! Many thanks to state Rep. Bryan Hughes (R-Mineola) for filing HB 1608, which would require police to obtain a warrant to access location tracking data from your cell phone or other wireless communications device. Rep. Hughes sits on the House Criminal Jurisprudence Committee which would likely hear the legislation. Thanks also to the volunteers who've been helping promote the idea at the Lege, along with EFF-Austin, ACLU of Texas and Texans for Accountable Government, who have now formed a coalition to support the bill.

This is a project your correspondent began working on last year after it was revealed in Congressional hearings that law enforcement made more than 1.3 million requests for location data from cell-phone carriers in 2011.

Grits should add that there's been a lot of interest in the legislation from other members as well, and the process of shopping the bill has convinced me it will receive significant bipartisan support. See more background from EFF-Austin, and find below the jump an op ed I wrote on the subject which was published last month in the Dallas News.

UPDATE (2/23): Excellent news. On Friday, state Sen. Juan "Chuy" Hinojosa, who sits on the Senate Criminal Justice Committee, filed a companion bill, SB 786, so the legislation now has been filed in both chambers.

Story conflates jails, prisons to misrepresent scope of unemployment 'fraud'

A TV news report out of Houston blares with the headline, "Prisoners collecting millions in unemployment while behind bars," but that claim obscures more truth than it illuminates. The story opened:
Unemployment benefits are supposed to be life lines to out-of-work Texans.

But the KHOU 11 News I-Team uncovered millions of dollars in unemployment payments are flowing into jails and prisons across Texas.

All of it comes as the Texas Workforce Commission insists that fighting fraud is one of the agency’s top priorities.

But after we found more than 1,700 cases of inmates collecting unemployment, some want to know if anyone is really watching the system?
Grits replied in the comments, though, that, "If someone is convicted and sent to prison, they shouldn't receive benefits. But most people in jail have been convicted of nothing yet and still enjoy the presumption of innocence. Their benefits should not be terminated. This article lumps those categories together in a way that's fundamentally misleading and borders on demagoguery. Please give the break out for how many of those 1,700 were in jail vs. prison." I'm betting that, if we ever see that data, most of the 1,700 people mentioned were in fact eligible and did not  engage in "fraud" at all.

Thursday, February 21, 2013

Pulling back the curtain on prosecutor paranoia

Ever wonder how prosecutors speak to one another when they think no one's watching? Conservative blogger Big Jolly, a GOP activist in Houston, pulled back the curtain, obtaining a copy of a video under open records of the first mandatory prosecutor training under new Harris DA Mike Anderson, conducted by the Texas District and County Attorneys Association. Here's an excerpt from Jolly's summary:
The entire tone of the video suggests a sort of “bunker” mentality, an us against them, almost a “whine-fest” from the trainer, Rob Kepple of the Texas District and County Attorneys Association. Did you know the Innocence Project is the “enemy” of prosecutors? Nevermind that their work has resulted in the release of innocent men and women convicted by prosecutorial abuse. DA Anderson goes so far as to say that in the eyes of the Innocence Project, prosecutors are nothing more than pondscum. I suppose the old axiom is true – no good deed goes unpunished.

The “training” also describes our legislature as “out to get them” – “them” being prosecutors because they are “government employees” and the legislature apparently hates government employees. Oh, and the only reason crime has gone down since the 1980′s in Houston is because the legislature built more prison capacity. But now, “they” want to release criminals in prison for minor offenses because it is a whole lot cheaper to put someone on probation than it is to house them in a prison. Imagine that.

Mr. Kepple goes through a whole series of how people cheat in life and it isn’t cheating if you get away with it. I think his point was to say that prosecutors can’t do that but you’ll have to watch it to see how bad he made that point. And remember Pedro Oregon? You know, the guy that was killed dead, dead, dead because a bunch of yahoo cops forced a drunk driver to give them the address of his “dealer” and then started shooting for no reason? Yeah, he presents that as an example of using Johnny Holmes’ stellar reputation to get away with anything. Just totally bizarre.
Having worked for several years for the Innocence Project of Texas, I'm pretty used to prosecutors considering that group the "enemy," though like Jolly I've never fully understood it. After all, when an innocent person goes to prison, that means a guilty person remains free. One would think prosecutors would have an interest in rectifying that situation. Still, we see instances like in Williamson County, where DA John Bradley fought for years to keep the national Innocence Project from testing evidence that eventually exonerated Michael Morton. Does anybody believe that, if Bradley had agreed to DNA testing when it was first requested, that Judge Ken Anderson would currently be facing judgment in a court of inquiry? Things got to that point because, thanks to the bellicose stance of the DA, a balls-to-the-wall fight was the only way to prove Morton's innocence. The open-records requests that discovered alleged prosecutorial misconduct would never have even been filed if Bradley had agreed to retesting from the get-go.

Similarly, the idea that the Repbublican-dominated Legislature somehow hates prosecutors or is soft on crime beggars belief, but prosecutors and the police unions see themselves particularly at odds with freshman and sophomore Tea-Party types. These special interests are so used to absolute deference that they consider even modest questioning of their practices tantamount to betrayal.

I'll be interested to learn what Mark Bennett, Paul Kennedy, Robb Fickman and other Houston criminal defense lawyers think about the presentation. Sounds like quite a show. Grits hasn't had time to watch the full video yet, and may have more to say about it after I do. (I've heard Kepple's schtick and such paranoid, "us against them" rhetoric fails to shock me as much as it once did.) For now, head over to Jolly's shop to see it for yourself.

MORE: From Big Jolly, breaking out highlights from the two-hour event.

Wednesday, February 20, 2013

Require pre-approval to prescribe psychotropic drugs to young children

This idea seems like a no-brainer to me.

About 49,000 prescriptions for antipsychotic and neuroleptic drugs are currently given to children under five years old through the Texas Medicaid program, many of whom are in foster care, state Rep. Sylvester Turner said yesterday in a hearing on HB 473. (Some of those represent multiple psychotropic drugs prescribed to the same child, so the total number of kids receiving the drugs is lower than that). Turner's bill would require pre-authorization for such prescriptions for very young children. In Illinois, according to one witness, similar pre-authorization is required up to age 8.

Chairman Richard Raymond suggested the drugs were being used as a substitute for parental "patience." A GAO study (pdf) from 2011 found that children in foster care are given psychotropic drugs at much higher rates than kids who are not.

The Texas Medical Association opposed the bill, arguing the decision should be left to doctors. Go here to watch the hearing; the bill was brought up at the 28:00 minute mark.

'Trouble in Mind'

A story by Brandi Grissom at Texas Monthly with the same title as this post tells the horrifying story of Andre Thomas, a schizophrenic capital murderer who plucked out both of his own eyes and ate them. An excerpt can't do it justice so read the whole thing, but this passage sums up the big picture question.
The toughest questions that Andre’s case presents, however, are not political in nature but moral. As a society, we want justice for the victims of his horrific crime. But what if Andre is not capable of understanding right from wrong or of comprehending why he is facing execution? Conversely, if the death penalty is not intended for someone who cuts out the hearts of two children, then for whom is it meant? At the center of this dilemma is Andre himself, who, now almost thirty, is presently too mentally ill to be housed on death row. For the past four years, he has been confined to a special psychiatric prison facility, where he remains indefinitely. All of which raises perhaps the most difficult question of all: What should be done with Andre Thomas?
See prior, related Grits posts:

Bell County Sheriff Office allegedly faked training results, TCLEOSE oversight failed to catch it

An investigative report by the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE), which regulates peace officers' licensure and training, alleges that the Bell County Sheriff's Lt. Danny Kneese, the department's training coordinator, provided training for deputies and even officers from other agencies by letting them take materials home instead of sitting in a classroom, then faked test results that were sent to TCLEOSE. A local TV station reported that the agency "revoked the Bell County Sheriff's Department’s training license for two years," but looking at the full report (pdf), that's just the tip of the iceberg.

Just-elected Sheriff Eddie Lange first reported the problem to TCLEOSE last fall, but from the beginning investigating officer Mike Hobbs was "suspicious of his motives" and "his actions." Lange had allegedly promised Kneese a position as Jail Administrator and Kneese, anticipating Lange would become Sheriff and need the training hours for his license, allowed Lange to take the training materials home for credit. But Lange's role allegedly extended beyond that of a supposed whistleblower.

Upon interrogation, Lt. Kneese admitted to not holding classroom trainings as he'd reported to TCLEOSE but initially refused to give a written statement, instead requesting a lawyer. After consulting with Lange, who was then a county commissioner but at the time was running for Sheriff, Kneese came back later with a typed statement in which he took full blame and insisted Lange "did not know that being given a packet to learn core courses was illegal." However, wrote Hobbs, "it was clear to me that it was not a truthful statement but one that had been well thought out and prepared by either a legal team or someone other than Kneese." He also expressed the belief that Lange "is not being honest with me during this investigation. It is clear to me that he his coaching" Lt. Kneese, said the report. "It is clear to me at this point that Eddie Lang (sic) contacted TCLEOSE knowig that we would find issues with the training and that if we found issues we would have to investigate." Wrote Hobbs, "It is likely that Lang (sic) and Kneese were working together." He surmised that Lange, "became afraid of his campaign being affected" and "let Kneese take the fall for the entire incident." Kneese has since surrendered his peace officer's license.

The reasons behind the revocation of training authority are flat-out startling, particularly the allegations of faked course examinations:
Almost all the examinations and evaluations were typed on the same computer and were all exactly the same. In almost every case I found a typo on the examinations and evaluations and all of them had the same typo. That means every student would have had to type the same typo. This is highly unlikely and with Kneese admitting to teaching courses by packets it is clear that the test and evaluations are made up on his computer and completed by him all at one time.
That's the sort of thing that could get somebody indicted - you'd think the local TV news coverage might have mentioned it! People were getting credit for physical fitness training by signing workout logs in the gym. Indeed, the scope of training-related misconduct was so great that TCLEOSE decided to limit its investigation so the results wouldn't impact the training hours of "every Jailer and every Peace Officer working for Bell County." Again from Hobbs' report:
As I continued my investigation I realized that every Jailer and every Peace Officer working for Bell County could be affected by this illegal training and could end up losing hours.If this were to occur then the most likely scenario would be that none of them would have time to catch up on hours. After discussing this with Deputy Director John Helenburg it was decided that we would focus only on Intermediate Courses and two other courses that Bell County reported to us. Those courses are 3512 Health and Safety, and 6012 Health and Physical.
So TCLEOSE is protecting the probably improper training hours of most of the Bell Sheriff's uniformed staff through essentially a "don't ask, don't tell" approach. If they dug deeper, it's possible few if any jailers or deputies or jailers would have sufficient training hours to justify their licensure. That decision seems problematic, though as a practical matter it's understandable as an alternative to, say, shutting down the jail while everyone retakes all the training they missed. If all or most of the training was faulty, how could the department ever make it all up? What a mess. Grits won't be surprised if defense counsel down the line begin challenging the legal  status of Bell County Sheriff's deputies based on failure to meet state training requirements.

One wonders, would TCLEOSE have ever discovered this if Lange hadn't contacted them? Are there other agencies doing the same thing, and if so, could TCLEOSE even tell? ¿Quien sabe?

Tuesday, February 19, 2013

Defense disclosure the sticking point in 'reciprocal discovery' bill

The Texas Tribune has a brief article describing legislation filed by state Sen. Rodney Ellis and Rep. Joe Moody related to "reciprocal discovery" in criminal cases, i.e., what evidence each side must give to the other before trial. Most court watchers agree the state has obligations to disclose potentially exculpatory evidence to the defense, though DAs differ from county to county have widely different definitions of what constitutes an "open file" policy.

In the past, the sticking point has been opposition by the defense bar to the "reciprocal" aspect of the bill, believing the practice abrogates the defendant's Fifth Amendment right against self incrimination. The burden of proof is on the state, the argument goes, and the defense is not obligated to put on witnesses or evidence at all. Meanwhile prosecutors have vehemently opposed codifying an "open-file" policy without the defense giving up something, too - hence "reciprocal discovery." The result has been a years-long stalemate. Here's a summary of what would be required of the defense under the filed bill (see the bill text):
  • Written or recorded statements from witnesses the defense intends to call at trial,
  • Any criminal record history of defense witnesses, if known,
  • Any physical or documentary evidence the defense will present at trial, giving the state an opportunity for independent testing upon a showing of materiality by the state,
  • Names of witnesses who will testify, addresses of some,
  • Any report prepared by an expert witness who will testify,
  • Prior notice of any alibi defense, including location and witnesses.
I'm not a lawyer and would be curious to hear the views of those who are, but the first three wouldn't particularly bother me. In most cases there likely will not be written or recorded statements of witnesses, only privileged attorneys' notes. This is not civil court and criminal defense lawyers do not generally depose witnesses. Criminal history information is already available to the state. And the physical evidence won't change just because it's disclosed. Similarly, I'm not particularly troubled by the suggestion that expert witness reports be shared before trial.

The fourth and sixth bullets, though, are where I've heard the most complaints from defense counsel when this bill came up in the past. Specifically, there's a concern that prosecutors or the police will engage in witness intimidation, threatening alibi witnesses or others scheduled to testify for the defense.

Another, broader complaint I've heard is that reciprocal discovery fails to take into account how trials actually work and the way defense strategies may change over their course.  E.g., imagine that a defendant knows of a witness whose testimony might help his or her case, but the initial defense strategy was simply to put on no witnesses and force the government to prove the elements. Then, during trial, the testimony of a prosecution witness turns out to be particularly devastating and the defense strategy changes. If they then call a witness they hadn't previously disclosed, will they get dinged over it by the courts? Will the witness be allowed? ¿Quien sabe?

Finally, the draft bill seemingly would require disclosure of witnesses that may be called to impeach government testimony, something even federal reciprocal discovery rules do not require. And even in the federal system, the distinction between impeachment evidence and an affirmative defense can be fuzzy, as in the case of an eyewitness called to rebut assertions by a state's witness. Some evidence may be used for either impeachment or non-impeachment purposes, and the distinction may not become clear until events at the trial begin to unfold.

For those reasons I tend to sympathize with defense critics of this bill, but also think that the need for open-file legislation is so great that, if it were me, I'd be willing to compromise. Making the defense disclose all witnesses, including impeachment, is way too broad. But having them disclose witnesses related to any affirmative defense, like an alibi or insanity, strikes me as a more reasonable, modest suggestion that would cause fewer practical problems. I don't know whether prosecutors would think that's enough (somehow I doubt it), but make me Philosopher King and that's how I'd split this particular baby.

We've been round and round these debates for too long. With all the focus on the issue following the Ken Anderson court of inquiry, the issue of open files is ripe for legislative action. It'd be a shame if Texas passed up the chance to require them by allowing the perfect to become the enemy of the good.

CORRECTION: This post incorrectly stated that the bill could require disclosure of impeachment witnesses, but in fact it only requires disclosure of witnesses the defense intends to call at trial. Grits regrets the error.

Monday, February 18, 2013

Bigger safety threat: Guns or violent video games?

A recent opinion poll (pdf) of Republican primary voters posed the question, "What do you think is a bigger safety threat in America: guns or violent video games?" Among respondents, an amazing 67% said video games, 14% said guns, 19% said not sure. The sample size was rather small (just over 500), but still, that's an enormous difference.

My personal belief is that, in fact, the opposite is true: IMO video games likely reduce crime because of the incapacitation effect of young males spending large amounts of time playing them. As a 2011 study on the subject put it, "Even if a gamer is predisposed to being more aggressive due to gaming, he can express this aggression only over a shorter time non-gaming period." Or in layman's terms, the kid who spends hours perfecting his skills at Grand Theft Auto has less time to spend stealing my car.

At the macro-level, too, the threat from violent video games falls flat. Max Fisher at The Washington Post reported in December that, "the United States has the highest firearm murder rate in the developed world. But other countries where video games are popular have much lower firearm-related murder rates."

Hidalgo Sheriff claims expanded jail would be profit center

Stop me if you've heard this before:
"Since 2003 we have paid out 11.2 million dollars to outsource our inmates to the private corrections corporations, we are making millionaires out of them," said [Hidalgo County Sheriff Lupe] Trevino.

And money to pay that bill comes directly out of tax payers wallets. But Trevino said he knows a way to end this never ending money pit.

"The solution I believe to our overcrowding is expansion. and that is really about the only way we can do it. We can expand this current facility to 2,000 beds, which is an addition 768 beds," said Trevino.

Expansion comes at a price, fortunately Trevino has a solution for that too.

"We could work out a contract with the U.S. Marshals where I could lease them 500 beds at about 52 to 57 dollars a day per bed depending on the negotiation. And we could probably raise, generate $10 million a year," said Trevino.
How many Texas counties have issued bonds to build oversized jails only to look up afterward and find that the contracts for prisoners weren't forthcoming? Here's a short, probably incomplete list. Jails are never free and incarceration is seldom a profit center for counties. Even if they strike a deal, their client can pull out in the future when they don't need the beds, while the county is stuck paying on the bonds no matter what.

Roundup: Forensic reform, testilying, risk assessment and more

Just a few items that haven't made it into independent posts but deserve Grits readers' attention:

Federal forensic institute created
Implementing the first recommendation of the National Academy of Sciences' 2009 report on problems in forensic science, the US Department of Justice today announced the creation of the National Institute on Forensic Science. See the press release.

'Largely perjurious' police testimony in asset forfeiture case
Somehow I'd missed this story, but in December Dallas Judge Carl Ginsberg threw out an asset forfeiture case, declaring that testimony of Officers Jon Llewellyn and Randolph Dillon in the proceedings were "largely perjurious." Yikes! The department denied wrongdoing and the state appealed the case.

Waco judges nix public-defender idea
Judges in Waco said they would not assign cases to a proposed public-defender office, nixing the idea for a grant request to the Texas Indigent Defense Commission. McLennan County courts are currently suffering from backlogs but local observers attribute that problem to the District Attorney, not the defense bar.

Community court helps Austin's 'most frequent offender'
The Austin Statesman reported on a success story involving one of the city's long-time frequent flyers.

Privatized jail employees charged with bribe taking
Via Texas Prison Bidness, "Recently, officials from the Department of Justice, charged 13 Ector County Correctional Center employees with bribery.  The private jail employees are alleged to have supplied federal inmates with contraband items such as cell phones, marijuana and tobacco in return for cash."

Mentally ill youth outnumber gang members at TJJD
The Associated Press reported last week that, "Young offenders with mental illnesses now outnumber youths who are gang members at juvenile jails in Texas, according to new figures that justice officials submitted to state lawmakers."

License plate readers' shouldn't retain data
In Corpus Christi, the police chief wants to purchase more license plate readers. Critics say departments using the devices should not retain the data past the amount of time needed to check against warrants, Amber Alerts, etc.. That's exactly right: It's one thing to check someone's plates for warrants, quite another to gather massive amounts of driver location data (the readers can scan 1,000 plates per minute) over time.

Union invites Austin PD to poach San Jose cops
In San Jose, CA, the local police union invited Austin PD to come recruit its members as retaliation for local budget cuts.

Risk assessment, expert witnesses and civil commitments
All civil commitment hearings for "sexually violent predators" statewide are heard in a single civil court in Montgomery County. Forensic psychologist Karen Franklin has a piece describing how little stock Montgomery County jurors place in risk-assessment scoring by prosecution experts, agreeing to civil commitments in virtually every case even when predicted risks are low, citing a study out of Sam Houston State. Though jurors cared little for risk scoring, "What did make a difference to jurors was whether the defense called at least one witness, and in particular an expert witness. Overall, there was a huge imbalance in expert testimony, with almost all of the trials featuring two state experts, but only seven of 26 including even one expert called by the defense." She has another excellent item detailing problems with risk assessment scoring tools and studies calling into question their accuracy - either at predicting recidivism or good behavior - because of high margins of error at the individual level. Good stuff in both posts, as well as in this fascinating item on cognitive bias in interpreting sex-offender risk.

Ex-prisoners as entrepreneurs
See a Texas Tribune story and slideshow about the Prison Entrepreneurship Program. I'm occasionally approached by ex-offenders who're desperate at the lack of employment opportunities, and often  recommend they consider small-scale entrepreneurship as an alternative. The barrier to entry is usually capital, but that's often easier to overcome than prejudices against hiring ex-offenders.

Saturday, February 16, 2013

A Grits Manifesto: Ten Maxims for Making Journalism Relevant in the 21st Century

Most political blogging is implicitly media criticism, though at times on Grits such criticism has become explicit. Let's face it: There's a lot to criticize. Some say the internet is killing the newspaper industry but the truth is it was dying long before most readers had a PC and an email account. (Ask the former employees of the Dallas Times Herald and the Houston Post.) Grits instead believes a major underlying reason for journalism's decline is a preponderance of poor quality, formulaic journalism that fails to meet  popular needs for engaging the democratic process. Here are ten maxims, many of which violate canons of political journalism as they're taught in universities and newsrooms today, that IMO would improve the overall usefulness of 21st century reporting:
  1. Never publish things you personally believe are false without saying so, even if you can't immediately "get a quote" from someone else to counter it. If you can't find a countervailing source and don't feel comfortable calling BS yourself, do not publish spin or likely falsehoods even (especially) when you're "only" quoting someone else. That's a cop out. You're the one giving the person a megaphone. If you think what you're hearing is false or misleading, either debunk it or let somebody else "break" that story.

  2. Wherever possible, quote primary sources and link to them. Read the report, read the bill, read the government documents, the budgets. File open records requests. Constantly ask sources for documentation. Scavenge archives and records repositories. Crunch the numbers. Talk to the wonks and bureaucrats. Attend public hearings to discover first-hand what's said and speak to players outside the hearing room. These are actual news sources whereas much of what passes for 21st century "news" is really fluffy commentary - reaction quotes in response to a press release or this week's cultural spectacle. If writing online, link directly to your sources whenever possible. Let readers decide for themselves if your interpretation is valid.

  3. Give your opinion, explain it, admit mistakes. Call BS when you see it and explain in your own words what you think is really going on in your stories, even (especially) if you can't find a source to say it outright. Your opinion is not the point of the story but it must be part of it lest you conceal an important element from your readers. That's because, just as in quantum mechanics, the act of observing an event can alter it. Like it or not, you're part of the story. You were the one who attended the meetings, read the documents, interviewed the subjects, etc.. Your readers are poorly served by a formulaic hodgepodge of official statements and predictable retorts. Refrain whenever possible - unless you haven't enough information to form an opinion - from he-said, she-said formulations without saying which side the reporter thinks is closer to the truth and why. Indeed, if you don't have enough information to form an opinion then you're not ready to publish the story yet because that means your readers won't, either. Of course, there's a corollary: If future events, new information or superior arguments later show you were wrong, freely admit errors: The admission and exploration of countervailing facts will just be fodder for another article and your readers/viewers will appreciate the candor.

  4. Interviews are only one of many information gathering tools and should be used sparingly. They are appropriate when the source has access to information or knowledge the reporter does not. If you don't understand something and find someone who does, by all means, call them and get them to explain it. And certainly give anyone accused of wrongdoing or error an opportunity to respond, if they have not done so elsewhere. But many if not most journalistic interviews are charades where the reporter knows what they want a source to say and merely calls to "get a quote" or to "balance" assertions by others. Even worse, often interviews are performed to avoid the reporter taking time to read a report, documents or other underlying source material. Savvy communications experts in the public and private sectors have long ago figured out how to manipulate the ubiquitous, lazy "quote both sides" methodology, and the MSM's decision to stick with it anyway has degraded modern journalism.

  5. You don't always need to get a quote from "the other side" in the age of Google. Unless you're tilling truly virgin soil - and it's a lucky, lonely reporter who finds they're in that situation - it's often possible to identify countervailing information or themes, giving full credit (and preferably links), without going through the  farce of calling a "source" to get them to tell you something you already know or to repeat something they've told someone else. Build on the work of others and your own work can reach greater heights.

  6. The scoop is dead. With the exception of a handful of long-term investigative stories or innovative data analyses, the concept of a "scoop" has become an anachronism in the internet era. Today, when a journalist gets a "scoop" it usually just means their source doesn't have (or chose not to use) a Twitter account. If you and I attend the same press conference and my story comes out an hour before yours, that's not a "scoop" in any meaningful, important sense. Ditto for most "exclusive" interviews with politicians and celebrities or revelations from government reports. Today, the best journalism takes what's said at a press conference or public event and adds value by providing additional context and analysis. The latest new fact-bite typically isn't what's important. We live in an era of information overload where facts are overabundant. Understanding what they mean is the hard part, and that's also where traditional "quote both sides" journalism falls down.

  7. Identify your sources' sources. Identify information sources relied upon by decision makers on the topics you're covering and monitor them yourself to the extent possible, whether it's government reports, professional journals, court precedents, the writings of particular experts, etc.. If you attend a public hearing, try to get access to the backup material given to folks on the dais. For beat reporters, subscribe to professional newsletters, journals or magazines your sources read or listservs on which they participate. Seek out academic articles on your subject area (and be sure to check the footnotes for additional leads). Instead of just quoting decision makers as a source, put yourself in a position to engage them on the substance of their decisions.

  8. Avoid press gaggles. The fact that one exists means the issue likely will be amply covered. Unless you've got long-term stakes in the story or are covering an angle others won't catch, skip them and go cover a timely story that the press gaggle is missing - likely there will be several. N.b. If you skip a press conference and over the next couple of days no one covers it, you can always call whoever sponsored it and get their pitch, materials, etc.. Since their press strategy failed, they'll be happy to talk to you.

  9. Distrust all in whom the urge to punish is strong. Okay, Nietzsche actually said that, but it applies to journalists who traffic in outrage to sell their media products. Think of all those angry sources who insist, "Something must be done!" Often what must be done is to fact check their quotes before publicizing them.

  10. Follow the money, follow the process. Follow the money is an old reporter's adage, but it's an incomplete strategy if you don't also closely track the process, identifying players, information sources, and critical decision points for governments, companies, and other journalistic targets. Closely tracking the process also lets you know when reporting is timely and can influence decision making as opposed to merely recording decisions after the fact, or worse, engaging in gratuitous scandal-mongering.
Finally, not just journalists but anyone who writes on political subjects for a general audience should read and diligently follow the advice in George Orwell's Politics and the English Language. And if you have never read that brief but powerful essay, as a public service stop writing nonfiction until you do.

MORE (2/17): See a similarly themed (if less prescriptive) essay published today at Monday Note titled "The Need for a Digital 'New Journalism'"

Judge lets police hide informant identity from allegedly leaky McLennan DA Office

Here's a bizarre tale: A judge has allowed the Waco Police Department to keep the identity of a confidential informant secret from the District Attorney Abel Reyna's office because they suspect prosecutors as the source of information leaks. Reyna on his Facebook page (he's in a childish snit and refuses to talk to the local paper) at first had said it was just one disgruntled Waco PD officer who'd alleged leaks in his department. But on Friday an attorney for the city formally made the allegations in court, reported the Waco Tribune-Herald. The judge agreed with the police department, prompting the prosecutor to threaten to dismiss the cases against seven people charged in an auto theft ring. What a zoo!

Piloting parole: One ship, two captains, and a senator wants one of them to walk the plank

Mike Ward at the Austin Statesman this week reported ("Senators propose removing parole duties from prison agency," Feb. 13) that parole board chair Rissie Owens has been "quietly shopping" a proposal to shift control of parole operations from the Texas Department of Criminal Justice to the Board of Pardons and Paroles. They're also considering more prison closures. The story opened:
In a surprise move to reverse a 23-year-old merger of Texas’ criminal justice agencies, a key legislative committee moved Wednesday to shift all parole operations and programs from the Texas Department of Criminal Justice to the Board of Pardons and Parole that now just votes on releases.

In addition, a Senate working group writing the first draft of the 2014-15 state budget proposed closing two private prisons that house state convicts to save $97 million over two years, and hinted it might push to close or mothball even more lockups in a system that now has thousands of empty bunks because of a declining convict population.

“It’s time to move ahead with doing what needs to be done,” said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, who a day earlier had castigated prison officials for what he said were almost 11,000 empty prison beds.

“The parole board should oversee parole operations, instead of having that managed by the prison system. I know we merged it in 1989, but that was then and this is now,” Whitmire said. “The system has changed.”
Grits contacted Huntsville parole attorney Bill Habern to ask his view of the proposal to move TDCJ's Parole Division to the Board of Pardons and Paroles, and he responded that, "During Sunset Committee several of us testified that the board should be unified as one agency. I also opposed it being split back in the late 1980s," he noted. Further, said Habern:

Friday, February 15, 2013

More than 130 new crimes, penalty enhancements filed so far

According to Shannon Edmonds at the Texas prosecutors' association, of the 2,026 bills and resolutions filed as of yesterday, "78 bills would create new criminal offenses, 55 bills would increase current punishments, [and] 11 bills would decrease a current punishment." While the overcriminalization trend toward higher penalties and more crimes remains troubling, in past sessions the number of bills filed reducing punishments has seldom reached double digits.

MORE: From Paul Kennedy.