A plea to Texas budget conferees: Close two prison units, don't buy empty cells we don't need

This is a plea to the ten conference committee members on the budget from both chambers of the Texas Legislature, who for the record are:

• House: Pitts, Crownover, Otto, S. Turner, Zerwas
• Senate: Williams, Duncan, Hinojosa, Nelson, Whitmire

Let's talk for a moment about prisons. First the House and Senate have both agreed in the base budget to fund 5% employee raises for correctional workers. Please don't start slashing at those wage hikes to pay for prison units you don't need. Including the extra money to bail out Jones County, the House decision to buy a prison instead of closing two will cost Texans an extra $116.8 million in incarceration costs over the biennium for those line items compared to the Senate budget. Close the privately-run Dawson State Jail and Mineral Wells pre-parole units as suggested by Senate-side budget writers and tell the folks in Jones County they're on their own, just like so many other counties that built speculative prisons and jails they now can't fill.

Also, know up front that you have likely underfunded prison healthcare by around $50 million or so and will need to come back and fund it with a supplemental on the back end like the Lege did this year. TDCJ/UTMB, et al., have told the Lege what it will cost to provide care to prisoners but even the more generous Senate version of the budget is $55 million shy of the requested amount. Why not just budget what the health care actually costs instead of paying tens of millions on the back end as though it's some big surprise or "emergency?" Incarcerating felons is a core function of state government. Budget what it costs.

Members on the House side, given that your chamber suggested paying for employee raises as well as three extra prison units, you could agree to prison closures, increase prison health care funding to the requested amount, and still call the result a "savings." That would be the truly "fiscal conservative" approach: Reduce spending where feasible but pay your bills in full.

To Senators, each of you has been around long enough to see TDCJ require "supplemental" funds for health care at the beginning of each session year after year. Why intentionally underfund that line item and perpetuate the cycle?

With the two chambers in disagreement on prison closures, it's your decision. Texas made history and received national attention for closing the Central Unit. Grits urges you to follow Chairman Whitmire's lead, double down on that success and close two more. The state doesn't need them and the money is better spent on employee raises, prisoner healthcare, and probation programming.

MORE: A couple of different sites are calling for people to contact conference committee members telling them to close two prisons and don't buy another one, see here and here.

AND MORE: From the Fort Worth Star-Telegram, "Texas shouldn't keep spending on unneeded prisons."

Discovery reform, innocence commission bills chugging along

The House worked late and I didn't stay for the committee festivities, but it sounds like the hearing on the discovery bill in Judiciary and Civil Jurisprudence went well:

• Texas Tribune: House panel hears testimony on "Michael Morton Act
• Dallas Morning News: Michael Morton Act left pending, could go soon to House floor

See also coverage from the SA Express News on passage by the Texas House of the Timothy Cole Exoneration Commission. At the Fort Worth Star Telegram, Bob Ray Sanders has a column titled, "Texas Senate should approve exoneration commission."

Written testimony against expanding local PD wiretap authority

Read written testimony your correspondent submitted on his own behalf to the Texas House Criminal Jurisprudence Committee asking them to reject HB 530 by Fletcher and its senate companion SB 188 by Huffman expanding the authority of the largest police departments to perform wiretapping without Department of Public Safety oversight. Right now when local PDs want to use wiretaps they must get DPS to perform the actual interception or else partner with the feds. Grits readers have seen much of the detail before but I didn't want the bill to make it through committee and to the floor without somebody at least registering opposition. Here are the main points from the written testimony:

• Wiretaps are seldom requested by local PDs
• Agencies saying they want them rarely ask
• Texas maintains greater accountability by keeping invasive surveillance technology at one agency
• There's no harm in the feds doing most of the wiretapping
• Don't expand authority before updating laws to account for 21st century technology

As I told Rep. Allen Fletcher and his chief of staff yesterday when I stopped by their office to give them a copy of the testimony before the hearing, I've been opposing this bill since it was John Whitmire and Debbie Riddle carrying it, and possibly before then. So just as there's no pressing need for this bill, with so few agencies requesting wiretaps each year, there's also no rush. If the committee shoots it down, it'll be back again next session.

MORE: From the Dallas Observer's Unfair Park blog.

See past Grits posts related to the bill:

• Local police want to bypass DPS on wiretapping but rarely use labor-intensive tactic
• Lege shouldn't needlessly expand wiretapping authority
• If it ain't broke ... no need to expand wiretapping authority to local PDs
• Texas bucks national trend on state-level use of wiretapping, feds do 98% of them

Previewing criminal justice committees, floor action at the Texas Lege

If the sound of bills dying were audible there'd be death rattles echoing around every corner of the capitol these days. Monday week is the last day House committees can report out House bills, which means that bills which never received a hearing or haven't been voted out of committee on the House side after this week are DOA. Senate bills have a little more time because they suspend the rules whenever they want, but even in the upper chamber the end of the session looms and  everyone's turning their attention to bills over from the other side of the building. Here's a brief overview of what's going on in the criminal justice committees at this very fluid moment in the session. Click on the committee's names to see their full agendas.

Senate Criminal Justice

When lots of House bills begin to be heard in Senate committees and vice versa, you know the end of the session is drawing mercifully near. Six bills are posted for a hearing Tuesday in the Senate Criminal Justice Commitee, five of them House bills. The short docket is a testament to the fact that the House hasn't passed much of significance this session on criminal-justice topics outside its ill-conceived prison budget, for good or ill.

House Criminal Jurisprudence

By contrast, this committee is taking its last opportunity to hear a raft of House bills on Monday before a looming deadline later this week. I'd already mentioned the questionable wiretapping bill. A couple by Jessica Farrar, HBs 1701 and 1703 repealing homosexual conduct ban and the death penalty, respectively, are both late-session culture-war fodder, posted after the point when there's a reasonable possibility of passage. Indeed, most of the House bills being heard without a senate companion already on the way have a foot in the grave as I write this.

House Corrections

Nothing posted for next week as of this writing. See their last slate of House bills heard on Thursday.

House Judiciary and Civil Jurisprudence

For Grits' purposes, the big bill of the day is SB 1611 by Ellis/Thompson related to discovery in criminal cases.

House Homeland Security and Public Safety

On Wednesday, May 1, the committee will hear invited testimony investigating the causes of the fertilizer plant explosion in West. To my knowledge this is the first official public hearing digging into the topic by government at any level, so this should be an interesting and important hearing filled with new information. I hope the members come into it adequately prepared, there's a bit of an historic burden on their shoulders as the first to publicly dig into what happened.

On Thursday, the committee will hear their final slate of House bills. One of the bills up, HB 3165 by Jonathon Stickland, would mandate that cities with surveillance cameras must post near each camera a sign that declares, "Warning: You are under surveillance by [name of municipality]." At least our law enforcement readers may rest assured he wouldn't have mandated an exclamation point!

There's also a bad bill with thankfully just as little chance of passing this session that would keep accident reports from being filed against police officers, fire fighters and EMTs for minor accidents while on duty or where an investigating officer found they are not at fault.

And one more update from this committee: HB 104 putting the Driver Responsibility surcharge on hold for two years is still waiting in Calendars Commettee for a House floor vote. These are the folks who will decide whether the bill moves any further or dies.

On the House floor

On Tuesday, there's an enhancement bill for felony DWI limiting parole opportunities (HB 517 by Pitts). The orginal, filed version according to the criminal justice impact statement would have increased the state's demand for prison beds by 7,351 by 2018. Reported HRO, "The committee substitute amended the original bill so that it would apply to those serving a sentence of 25 years or more for intoxication offenses, while the original bill would have applied to certain repeat offenders whose offense was enhanced to a third-degree felony." (N.B., An earlier version mis-attributed the criminal justice note from the filed version of the bill to the narrower version passed out of committee. Grits regrets the error.)

Also Tuesday, Corrections Committee Chair Tan Parker brings to a floor a bill addressing the problem of "pre-suit depositions by offenders" so grave that no one showed up in committee to testify in favor of the legislation. Seems like another solution in search of a problem.

On Wednesday, the House will vote (again) on whether to ban Salvia Divinorum. Rep. Sheets wants to help bail bond companies with their taxes. Another bill would allow the parole board to set off capital life and other aggravated felons for 10 years at a time instead of five.

TDCJ's Sunset bill is scheduled for a floor hearing next Saturday, nearly by itself.

AND IN THE OTHER CORNER:  The Senate side schedule is more difficult to predict, but see the bills presently on the senate's "intent calendar," meaning they are eligible for a vote.

RELATED: Medical examiner issues dominate early criminal justice bills sent to Governor's desk.

Budget conferees gather with opposing mandates on prison closures, purchases

Earlier this month, Grits had reported, the Texas House approved a budget that rebuffed the Senate's decision to close two private prison units, deciding to keep them and purchase another, empty unit in Jones County that the state doesn't need. On Friday they made it official as representatives of the two chambers head into the conference committee, reported the Statesman's Mike Ward:

The Texas House on Friday voted to buy an unused West Texas prison for $19.5 million, brushing aside growing criticism that the state has 12,000 empty prison beds and is wasting taxpayers’ money.

The decision to leave intact funding for the 1,100-bed Jones County lockup is expected to set up a showdown with Senate leaders, who have openly criticized the House as engaging in pork barrel politics.

The House approved the purchase in House Bill 1025, a supplemental appropriations measure, by a 129-9 vote.

“We’ll look forward to a discussion with the Senate,” said House Appropriations Committee Chairman Jim Pitts, R-Waxahachie. “This is just putting it out there for discussion. This is not the final version of the bill.”

From the story, it sounds like Rep. Sylvester Turner, who's on the conference committee, isn't a fan of the Jones County unit, and Chairman Pitts is open to omitting excess capacity from the "final version." If Senate conferees stick to their guns - and with John Whitmire among conferees, you'd expect them to - there's a decent, bettor's chance Texas may end up closing units this time instead of pointlessly expanding capacity, as the House has suggested. Here are the lists of House and Senate budget conferees, respectively:

• House: Pitts, Crownover, Otto, S. Turner, Zerwas
• Senate: Williams, Duncan, Hinojosa, Nelson, Whitmire

Surprising opposition has arisen in the House to closing the Dawson State Jail and the pre-parole facility in Mineral Wells, as the Senate has suggested. Besides the obvious, pork-barrel reasons (Corrections Corporation of America runs both facilities and its champions don't want them shuttered), it's been suggested that the Dawson State Jail in particular services women from the Dallas area disproportionately. That's true to a small extent, but the Hutchins State Jail takes even more inmates from Dallas, presently operates under capacity and could take the extra Dallas inmates and gender-specific programming, if so-directed. The relatively minor, bureaucratic adjustments that would be required to manage the inmate population if Dawson were closed pales in comparison to the extra expense of keeping it open. The Senate essentially paid for a 5% prison guard pay hike by eliminating two private-prison contracts the state doesn't need. If those units stay open, as the House envisions, and the state buys another empty unit, the question for conferees becomes, "How does the state pay for wage increases for corrections staff, or do those just go away?" Root for the senate conferees to stand firm on this one and hope for the House side to give into the imperatives of reason and math.

MORE: In another story by Mike Ward on related subjects, he quotes Sen. John Whitmire succinctly summing up the conflict on prisons between the upper and lower chambers. “The people in the House who are for buying a prison we don’t need, and are for keeping two existing prisons open that we don’t need, are the same tea party, fiscal conservatives who campaigned for less government and cutting wasteful spending,” he said. “Everyone wants to cut government waste, but it’s very hard to shut down anything.”

AND MORE (4/29): Patti Hart reported that John Whimire is "irate" over the House's decision to purchase the Jones County facility, and I can understand why. That said, if Chairman Whitmire were "irate" nearly as often as the MSM portray him that way the poor man would surely have suffered a coronary by now. Still, the starting position of the House on prisons in the budget is certainly insensible and frustrating. Where are all the small-government budget cutters when you need them?

Texas praised for response to DPS Houston crime lab scandal, compared to Yankees

If you've been following the DPS crime lab misconduct scandal out of Houston, first reported on this blog, that may endanger thousands of southeast Texas drug convictions, then you're probably aware, or should be, of the similar but even more profound scandal in Massachusetts involving a woman named Annie Dookhan and possibly others. Unlike the Texas Court of Criminal Appeals, Massachusetts courts have resisted a "global solution" to Dookhan's old cases, which number in the tens of thousands. (Jonathan Salvador worked on just fewer than 5,000 cases and unlike Dookhan did not allegedly seek to actively frame people.) In an article comparing Texas' response to the Salvador situation to the Massachusetts debacle, the Lone Star State earned praise in the Massachusetts Lawyers Weekly for the rapid and decisive responses by the Department of Public Safety, some local District Attorneys and the courts to the Jonathan Salvador episode at the DPS crime lab in Houston. The column opened:

Two states with little else in common — Massachusetts and Texas — now face similar criminal justice scandals. In each state, misconduct at state labs has tainted thousands of drug convictions. One state, a leader in progressive criminal justice reform, is handling its lab scandal with efficiency, integrity and justice.

The other state is Massachusetts.

Since the editors generously removed the paywall at your correspondent's request, I'll refer you to the MLW for the full story instead of quoting more fully. But it's a good  reminder that, however imperfect Texas' response - and believe me, it's got flaws! - both DPS and, to me surprisingly, the Court of Criminal Appeals have dealt with the issue decisively and without nearly the amount of flailing and malaise that's going on in the Bay State. And the Forensic Science Commission investigation gave the issue a public face as well as some independent oversight and a venue for solutions-oriented networking across the system. Not perfect, but not bad. The author concluded, "The Texas example proves that the Massachusetts debacle cannot be blamed on Annie Dookhan alone. Her misconduct has created such a huge mess only because it occurred at a dysfunctional lab and within a justice system that, to this point, has delivered neither clear procedures nor just outcomes."

The author, who is one of the attorneys petitioning Massachusetts courts for relief in Dookhan's old cases, is definitely idealizing Texas' system: If we look good on this, the credit mainly goes to DPS for self-reporting the episode (if it didn't it would lose its accreditation) while in Massachusetts there was a coverup. And the Court of Criminal Appeals' choice to issue a global solution was likely borne as much of judicial economy as anything else, though it should result in a much cleaner, clearer outcome than the mess they've got going in Boston. 

The Massachusetts scandal is numerically a much bigger deal; Ms. Dookhan worked on 7-8 times as many cases as Jonathan Salvador. For that reason, Dookhan appears to have left that much smaller state's justice system in complete disarray while our episode was more localized to one region. Further, because Houston PD has its own crime lab, Salvador's cases were mostly from the surrounding counties, not the main urban area in the region. Dookhan worked on tens of thousands of cases - nobody knows exactly how many - in the heart of the state. So to the extent Texas has handled this mess better than Massachusetts, a big reason is that we have a much smaller problem.

Even so, this is far from over. Because of our lack of a public defender system and the tedious, case-by-case mechanisms of the habeas corpus process, Texas' Achilles' heel may be processing all the old claims. There's really not an obvious mechanism for doing so without cooperation from local prosecutors, even now that the Court of Criminal Appeals has said defendants are entitled to relief if Mr. Salvador were ever in sole custody of the evidence. If Texas looks "good" by comparison to our Yankee cousins in our response to this mess then at best it's a back-handed compliment. Anybody'd look good compared to the catastrophe they're working through in Massachusetts.

See the Texas Forensic Science Commission's recently released report (pdf) for more background on the Salvador case.

Related Grits coverage:

• On Defining Drylabbing: More from forensic commission meeting on DPS crime lab debacle
• 17 and counting: Texas Tribune on DPS crime lab scandal
• CCA habeas roundup: Four more free from DPS crime lab debacle, an actual innocence writ on pot possession, and death sentence overturned
• Fort Bend DA failed to notify defendants of misconduct by DPS lab worker
• The Weakest Link: TDCAA agrees nearly 5,000 cases 'may be jeopardized' by DPS lab worker misconduct
• Thousands of drug cases may be overturned because DPS lab worker allegedly faked results
• DPS crime lab SNAFU may overturn thousands of years worth of drug sentences
• Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challenged
• Bad apple at DPS crime lab could spoil barrel of convictions
• DPS analyst who faked results worked on 4,944 drug cases
• Drug analyst at DPS crime lab issued erroneous reports

Local police want to bypass DPS on wiretapping but rarely use labor-intensive tactic

Earlier, Grits complained at length about a bill passed out of the Texas Senate, SB 188, by Sen. Joan Huffman, expanding wiretapping authority and on Monday its House companion HB 530, by Rep. Allen Fletcher, will be heard by the House Criminal Jurisprudence Committee. The legislation would let the six largest police departments and the Harris County Sheriff engage in wiretapping on their own authority. Under current law, when local prosecutors get wiretap orders they must be implemented by DPS officers. The argument by bill proponents last week, and in prior committee hearings, was that DPS was too overwhelmed to handle wiretapping duties. But here's a table Grits compiled of the total number of wiretapping requests by local Texas agencies since before the turn of the century.

Wiretap orders issued by
Texas state district judges: 1997-2011

2011: 2
2010: 1
2009: 0
2008: 2
2007: 4
2006: 2
2005: 4
2004: 0
2003: 4
2002: 2
2001: 1
2000: 0
1999: 4
1998: 5
1997: 0

Source

Why do local agencies need this authority when right now they hardly ever use wiretaps? At last week's House Criminal Jurisprudence meeting there was a telling exchange when the committee heard essentially similar legislation to SB 188 from state Rep. Gene Wu. Committee member Matt Schaefer asked a Houston police detective, who said this bill would let him do more wiretaps, how many times HPD had requested a DPS wiretap last year. He replied that HPD had not requested any because they knew DPS was too "busy." DPS, however, has never turned down an agency that asked them to perform a wiretap if they've got the proper orders from their local judge. The argument seems to be, "If we didn't have to go through DPS we'd do more of them." But why? Can they credibly say that without having even tried going through the existing legal mechanisms?

The other big complaint was that, right now, local PDs often have to ask the feds for assistance when they need a wiretap. But so what? Is that really a terrible thing? Let the feds do their thing. They're a lot better equipped to do those sorts of labor-intensive investigations, anyway. But if Texas agencies aren't even using their current wiretapping authority, why expand it?

This bill amounts to a solution looking for a problem. If Houston PD had received judicial approval for a wiretap and DPS was unable to implement it, that'd be one thing. But if it's just to give them a leg up in some bureaucratic turf war with the feds, or to keep from having to involve DPS, those don't seem like very good reasons to let the big local PDs have this authority.

MORE (Monday, April 29): See written testimony I submitted to the committee against the bill.

RELATED:

• Lege shouldn't needlessly expand wiretapping authority
• If it ain't broke ... no need to expand wiretapping authority to local PDs
• Texas bucks national trend on state-level use of wiretapping, feds do 98% of them

Medical examiner issues dominate early criminal justice bills sent to Perry's desk

Not too many criminal-justice related bills of significance have finally passed yet and gone to the governor but here are three senate bills that came through  the House Criminal Jurisprudence Committee then out of Calendars remarkably quickly. They've all been approved by the lower chamber and are or soon will be on their way to Rick Perry's desk for final approval or veto:

SB 336 by Rodriguez/Moody on qualifications as a medical examiner, allowing a physician certified to practice in another state and who has applied for licensure in Texas to work as a M.E. with a provisional license. I don't care that much but it reads like a post hoc justification for a hire already made.

SB 387 by Nichols/Clardy would exempt a county from participation in an otherwise mandatory collections program "if the county has a population of 50,000 or more due to the inmate population of a correctional facility within its borders." This would only effect Anderson, Cherokee, and eventually Rusk counties, according to the bill analysis. One notices inmates count when legislators want them to and not when they don't. For example, one suspects those counties don't mind disproportionate representation in the state capitol because of prisoners counted in their number.

SB 457 by Rodriguez/Márquez makes autopsy photos closed records with two exceptions, according to the bill analysis: (1) under a subpoena or authority of other law; or (2) if the photograph or x-ray is of the body of a person who died while in the custody of law enforcement.

Let's hope the Calendars Committee expedites these bills just as promptly.

All that stands between the senate bills above and becoming Texas law is the Governor's signature so anyone with a dog in one of these fights, be sure to let him know if you like 'em, love 'em, or hate 'em.

Sentencing policy, cell-privacy: Good criminal justice bills waiting for House floor vote

A pair bills voted out of the House Criminal Jurisprudence Committee recently would begin to adjust drug laws in deference to pragmatic reality:

The committee approved Rep. Senfronia Thompson's HB 2914 which would clarify that prosecutors couldn't charge felony possession in "trace" cases where less than .02 grams of a controlled substance was found (often scraped off a pipe or other paraphernalia). Regular readers will recall this is a longstanding demand of Houston judges, including several staunch, tough-on-crime Republicans, who complain that their felony dockets are filling up with trace drug cases that in other jurisdictions are being charged as Class C misdemeanors for paraphernalia. Then-Harris DA Pat Lykos briefly ended the practice but he replacement, Mike Anderson, made renewing it a central campaign promise. The Lege could and should override that decision, though, by passing Thompson's bill.

The committee also approved a watered down version of Rep. Harold Dutton's HB 184 reducing the penalty category for up to an ounce of pot to a Class C misdemeanor. The committee substitute, which is not yet online, would only apply to defendants under 21 years old, I'm told - an idea that was suggested in committee. I'd have preferred just notching down the penalty altogether, but this is better than a sharp stick in the eye.

Relatedly, if the Lege is not going to take a serious stab at reducing nonviolent criminal penalties this session more broadly than these minor adjustments, at a minimum the House leadership should give Rep. Thompson's HB 990 a floor vote. That bill would launch a review of the penal code to evaluate state sentencing practices, among other criteria, by what amounts to a cost-benefit analysis.

Finally, Rep. Bryan Hughes' cell-phone location tracking bill, HB 1608, was voted out of committee in a version that addresses most of the major concerns expressed by law enforcement. It now awaits a decision by the Calendars Committee (which includes 11 "co-authors" of the bill) whether the full House (which includes 107 joint and co-authors) gets to vote on the issue.

All these bills deserve prompt votes on the House floor.

Withdrawn TDCJ board nominee is sister-in-law of chair

Crikey! Annette Raggette was not just TDCJ board chair Oliver Bell's business associate, a story this blog broke last week, it turns out she is his sister-in-law, though she allegedly didn't reveal it on her application for the TDCJ board job. Confirmed the Statesman's Mike Ward:

The union that represents prison guards in Texas on Friday called for the chairman of the prison system’s governing board to resign for trying to get his sister-in-law selected for a spot on the nine-member board.

Lance Lowry, president of the Huntsville-based Texas Correctional Employees Local of the American Federation of State, County and Municipal Employees, said Gov. Rick Perry — who nominated Annette Raggette to the prison board, then withdrew her name Wednesday amid the controversy — should ask for Bell’s resignation.

Lowry also asked for Travis County prosecutors to investigate whether any state laws were broken — whether nepotism laws cover board appointments and whether Raggette may have falsified a government document when she answered a question on the application form, and specified she was not related to any state official.

Bell is married to Raggette’s sister.

Grits thought the business relationship looked a little hinky, but I didn't see that coming. Not only did Raggette allegedly conceal her family relationship with the board chair on her application, an earlier story by Ward mentioned that "Bell was listed by Raggette as a reference on her application form." Did anyone check her references? At first blush, I thought Lowry's call for Bell's resignation was overkill. But upon reflection, perhaps it was just premature. It really depends on what Chairman Bell said when he was called by TDCJ or the governor's office as Raggette's  reference. Did he reveal the family relationship? Did he disclose that she was a long-time employee? And if TDCJ knew, why wasn't that on her public bio? If the chairman misrepresented anything to the people vetting Ms. Raggette - and I have no idea if that's the case - then that would justify calling for his resignation. At the moment, Grits doesn't feel like we've got enough information in the public realm to join Mr. Lowry in making that call. It's not inconceivable, though, my opinion could change depending on the answers to those questions.

The episode also raises questions about the quality of the vetting process for governor's nominees. Does any of this ever come out if this blog hadn't published a three-sentence post last Thursday before the Monday hearing about the business relationship and emailed it to members of the Nominations Committee, encouraging them to ask further questions? The information came up on the first page of a Google search on her name, for heaven's sake. How much vetting could really have been done? By TDCJ? By the governor's staff? By committee members' offices? The whole, tawdry near-miss deserves fuller investigation by either the Nominations Committee or perhaps the House or Senate Committees charged with TDCJ oversight. Either the family and business relationships should have been caught sooner or perhaps people knew and let it go with a wink.

See related Grits posts:

• Perry withdraws TDCJ board nomination
  
• Whitmire: Appointment of chairman's business associate to TDCJ board 'not smart'
• Employee of TDCJ board chair nominated to join him on board

Texas at forefront of national debates on electronic privacy

A couple of national stories have implication for electronic privacy legislation presently moving through both chambers of the US Congress:

Law enforcement as computer hackers
Texan Jennifer Valentino-DeVries broke the story for the Wall Street Journal,, but since her article is behind their paywall see a summary from Slate by Ryan Gallagher about a decision by Houston Magistrate Judge Stephen Smith this week to deny "an FBI request to install a spy Trojan on a computer in an unknown location in order to track down a suspected fraudster. The order rejecting the request revealed that the FBI wanted to use the surveillance tool to covertly infiltrate the computer and take photographs of its user through his or her webcam. The plan also included recording Internet activity, user location, email contents, chat messaging logs, photographs, documents, and passwords."

Grits was privileged to meet Judge Smith and hear him talk on related Fourth Amendment topics at a conference at the Yale Law School earlier this year, so I'm not surprised to learn he's requiring more information from prosecutors before allowing the use of this sort of spyware. Wrote Gallagher, "Back in 2007, the bureau was revealed to be using a spyware that could infect computers and gather IP addresses, the last visited website address, and a range of other metadata. But the spy Trojan disclosed in the Houston documents is far more advanced, capable of copying content and turning a person’s webcam effectively into a surveillance camera."

Federal electronic privacy legislation moving
Relatedly, yesterday the Senate Judiciary Committee approved legislation requiring a warrant to access emails held by third parties more than 180 days old, a bill that mirrors Texas legislation by freshman state Rep. Jon Stickland to require warrants for state and local law enforcement in Texas to access old email. Meanwhile, in the US House a congressional subcommittee heard testimony yesterday related to regulating law enforcement access to cell phone location data. See their press release. DOJ declined to testify at the hearing. The chair said he was tempted to leave an empty chair at the witness table in case they changed their mind. Go here to access the congressional webcast and written testimony from invited experts. See more from the Blog of Legal Times and ACLU's Free Future Blog. Texas' HB 1608 by Hughes requiring law enforcement to obtain a warrant for cell-phone location data was recently reported favorably out of committee and now needs the House Calendars committee to set it as soon as possible for a vote.

More on location tracking and biometrics conference
Finally, the Connecticut Law Tribune this month published a story about the conference Grits attended in early March at the Yale Law School on Location Tracking and Biometrics. Thanks again to readers who generously paid for that trip; I learned a lot there. Here's my own blow-by-blow coverage of each of the panels at that event.

Ross Ramsey on waning prosecutorial power

A lot of folks have asked me why (most) prosecutors have acquiesced to a one-sided, open-file discovery bill after insisting for most of the last decade that they would only do so if the defense bar agreed to "reciprocal discovery" like they have in federal court and most other states. Grits believes the answer may fundamentally be found in an item at the Texas Tribune by Ross Ramsey titled, "Texas prosecutors no longer unassailable." His colunn opens:

Image via the Texas Tribune

An elected prosecutor used to have one of the most respected jobs at any level of Texas government.

District attorneys were often big personalities — the courtroom muscle of the criminal justice system, the people showing up on TV to play out the real-life version of “truth, justice and the American way.”

Candidates for Texas attorney general — an office with almost no duties in criminal law — have tried to capture the crime-busting aura of prosecutors for years. It was strong stuff in a political arena.

Running a political campaign against a sitting prosecutor in Texas was a job for egotistic dunces and legal-minded Quixotes. Even weak DA’s were invincible.

But a strange thing is happening in the impervious ranks of high-profile Texas prosecutors. That cachet is taking a beating.

One prosecutor is in jail. A former district attorney is facing charges related to sending an innocent man to jail. One county spent nearly $400,000 settling a sexual harassment charge against its DA. Another prosecutor is fighting contempt of court charges after refusing to testify in a prosecutorial misconduct inquiry.

He mentioned only in passing Dallas DA Craig Watkins' bizarre decision making this year that led a Democratic judge to declare him in contempt of court. And he could have added the strange episode where DA Association executive director Rob Kepple and newly elected Harris County DA Mike Anderson, who was elected on a revanchist platform, made bizarre Us. vs. Them comments at a prosecutor training that drew fire from the conservative blogosphere and various MSM outlets. It's been quite remarkable to watch the terms of debate shift among capitol opinion leaders. It'd be interesting to see some fresh, state-level polling on public attitudes on the topic.

Grits dates the beginning of Texas DAs' recent slump to Harris County DA Chuck Rosenthal's ignominious, public meltdown. When Rosenthal imploded, his heir apparent lost a primary runoff and much of the old-guard staff left the agency. Meanwhile, Craig Watkins took out Dallas DA Bill Hill's own heir apparent, then launched his DNA/innocence review, similarly dissipating the old guard among senior prosecutors. From that time, prosecutors' relative political clout changed. All of a sudden, they no longer spoke with one voice. Not only were two hard-line prosecutorial political bases (Dallas and Houston) replaced with ostensible reformers, but those rookie reformers were focused on their own jurisdictions, not projecting political power at the capitol the way their predecessors had done.

That left John Bradley in Williamson County as the tuff-on-crime standard bearer for Texas DAs. He was based close to Austin, had legislative experience (including at one point two decades ago as a staffer to Senate Criminal Justice Chairman John Whtimire) and for several sessions he had the Governor's ear, getting Perry to veto Jerry Madden and Whitmire's probation reforms in 2005 and throwing his weight around on the Texas Forensic Science Commission. But history, the Texas Senate and ultimately his own local Republican primary voters did not deal kindly with JB.

Today, who is there to replace him among elected DAs in that tuffer-than-thou vein? Susan Reed in Bexar County, to some extent, though perhaps for partisan reasons her delegation doesn't reliably carry her water. Abel Reyna  from Waco is outspoken and based just 90 miles away but his office is not engaged at the capitol. Neither is the Smith County DA - they have a hard-line reputation but they're not represented at the capitol day-to-day the way the larger counties often assign a full-time prosecutor to monitor legislation in Austin. El Paso's DA qualifies as a modest reformer. Prosecutors from the Valley occasionally show up, though mostly for local issues. And as for Harris County, my own dealings with new DA Mike Anderson's statehouse lobby team have been civil and productive - a much more pleasant and reasonable experience than either under Lykos or Rosenthal.

The result has been a remarkable change in tone from prosecutors' own representatives, exemplified by their new stance on discovery. There are still some outliers who'd like to kill discovery reform, I'm reliably told, but the prosecutors' association is doing its best job at cat herding to try to keep them in line. Enjoy it now, there's no telling how long this kinder, gentler face will predominate.

Either way, Ramsey is right that that Texas prosecutors recently faced remarkable political and legal setbacks and no longer enjoy an air of invincibility. However, I don't think they've agreed to a one-sided discovery bill just because they're weak. Many of them already have open file policies and so don't see the harm. I think it's also because they want to position themselves again as the guys in the white hats, a perception that just a few years ago at the capitol all of them took for granted. Folks like Lehmberg, Anderson, and Bradley aren't used to being the bad guys and their peers don't like being tarnished by their actions. They're still a powerful force at the capitol, though, and it'd be a mistake to suppose these temporary setbacks will diminish Texas prosecutors' clout any time soon, even if they need to find new messengers.

RELATED: Rough day for Central Texas prosecutors: Lehmberg, Anderson headed to jail

Isolation, mental illness, and a call for legislative oversight of Texas ad seg

Check out a pair of op eds in the Houston Chronicle published today about solitary confinement from a former Texas Department of Justice general counsel Steve Martin and exoneree Anthony Graves, who spent nearly two decades on death row in "administrative segregation," as Texas euphemistically calls it:

• Martin: Long-term segregation fails to solve mental illness issue
• Graves: Solitary confinement brings no benefit to prison inmates

Martin made, essentially, a cost-benefit argument: "Right now Texas, like many other jurisdictions, is wasting money and undermining public safety with its segregation policies and practices. We simply over-use administrative segregation. Given the lack of human contact and very limited access to treatment programs, inmates are functionally programmed to fail when held for months and years in such confinement. Because the conditions are so harsh, it should be used sparingly as the costs are high - for offenders, taxpayers and public safety." Good stuff; read the whole thing.

Like his Congressional testimony on the topic, Graves' column focused on his personal experience in isolation, concluding thusly:

I was proven innocent in 2010, and became Death Row Exonoree No. 138. Some of us on Death Row were innocent. Some were unlawfully sentenced to death and had their sentences thrown out. We all suffered the same.

If you believe in the death penalty, I hope you would at least agree that some of us - the innocent ones and ones unlawfully sentenced to die - did not deserve this torture. Even if you believe in the death penalty, these torturous conditions make no sense. They damaged guys so much they could not repent for their crimes. Guys could not focus on the wrong they had done when they had a legitimate complaint of being tortured in administrative segregation by the state of Texas. And the torture was unnecessary.

Many people housed in solitary confinement in Texas prisons are not in prison for the rest of their lives. These individuals will one day return to our communities with all the mental health issues and physical problems administrative segregation causes. Hundreds of people are released from solitary confinement directly to the street each year with no oversight of any kind. After years in solitary, these individuals will find the outside world very difficult to navigate.

Now the Texas Legislature is considering two bills - House Bill 1266 and Senate Bill 1003 - that will take a hard look at the administrative segregation policies that caused me so much harm and continue to harm so many behind prison walls. These bills call on Texas to find better solutions to solitary.

I lived through solitary and I know there is a better way. These bills should become law because solitary is simply a tool to break a man's spirit - it doesn't make him better or our communities safer.

RELATED: See more on solitary confinement and mental health and if you follow the subject don't forget to check in periodically at the indispensable blog Solitary Watch.

Perry withdraws TDCJ board nomination

Governor Rick Perry has withdrawn the nomination of Annette Raggette to the Texas Board of Criminal Justice which oversees the state prison system after this blog broke the news, followed up by a story in the Austin Statesman, that she has close business ties and worked for years for an eponymous company run by TDCJ board chairman Oliver Bell. The story in the Texas Tribune announcing the nomination's withdrawal included this jab from rookie senator Sylvia Garcia:

“I’m not surprised because I think there are a lot of concerns. It surprises me that the governor’s office doesn’t do a fuller review,” said Sen. Sylvia Garcia, D-Houston, a member of the Senate Nominations Committee. “It appears to us there was a business relationship and we have reason to believe there was a family relationship. We thought brother-in-law deals were a thing of the past.”

Hadn't heard about the possible "family relationship." But it's true there seems to have been little review of the nomination. Grits discovered the potential conflicts of interest with a simple Google search of the nominees' names that led to Raggette's (since altered) LinkedIn Profile.

A conservative critique of speculative jail privatization: Montgomery County edition

The blog Texas GOP Vote has an interesting and detailed critique of the financing mechanisms behind the speculative Joe Corley Jail in Montgomery County. Here's a notable excerpt:

Texas law allows Counties to issue Revenue Bonds, which are secured by the revenues of a project, without voter approval. But it is inconceivable that the legislature intended this provision to be used where the source of the revenue is not a third party. That is exactly the situation created by the Joe Corley Jail financing. The County established a special purpose company and then made itself the source of the revenue to repay the bonds. While this arrangement may have met the letter of the law, it is unimaginable that it met the spirit of the law. The members of the Commissioners’ Court who participated in this deception should be ashamed of themselves. It appears that the only conceivable reason this financing was structure this way was to avoid having to ask voters to approve the County using their credit for a deal like this. And that is outrageous.

The blog offers a conservative critique of a financing scheme that's been all too common in Texas counties that mostly are perceived as conservative bastions:

the mess we have with the Joe Corley financing is exhibit number 1 as to why taxpayers do not want their elected officials expanding government into areas where we are on the hook for commercial risks. So far, what has happened to the Joe Corley financing is due to the County making a commitment on the jail’s utilization that made no sense. But the commercial risk continues, since there is no way anyone knows whether the federal use of the facility, which is committed only for 100 day increments, will continue. And if it doesn’t, does anyone really believe the County will risk its credit rating by not continuing to appropriate the lease payments?

Joe Corley is a classic example of what happens when government gets into activities it shouldn’t. This expansion of government is a liberal action taken by people on the Montgomery Commissioners’ Court who claim to be conservative. This is not an example of limited government; it’s an example of expansive government. It is also, sadly, appears to be an example of not only a total lack of transparency, but possibly an intentional effort to dupe and bypass the voters. It is an example of why the Tea Party exists and why it is so important. We the people have negligently assumed our elected officials would behave responsibly. This appears to have been extremely naïve.

This outcome was both foreseeable and foreseen. See past Grits coverage, including this 2008 item which presciently concluded, "who will be surprised if Montgomery County's projected $2 million profit on the jail turns into a $4 million annual debt payment for which the county is on the hook?"

Related Grits posts:

• Scheme to finance county jail with immigration detainees puts Montgomery County finances at risk
• Entrepreneurial prison scheme in Montgomery County may lose nonprofit status for too-few local inmates
• 'Texas prison boom going bust' 
• 'Private prison promises leave Texas towns in trouble'
• Private prison bubble bursting? Empty, speculative jails in Texas

Criminal discovery bill to be heard in Civil Jurisprudence Committee Monday

I find it interesting that Sen. Rodney Ellis' SB 1611 - now a one-sided open-file bill for Texas prosecutors instead of a reciprocal discovery bill as originally filed - has been referred to the House Judiciary and Civil Jurisprudence Committee and scheduled for a public hearing on Monday, April 29th. One might have expected the bill to be referred to the Criminal Jurisprudence Committee, since that's where criminal discovery bills filed in the House with identical captions were sent.

This is the second bill I've noticed where similar or identical legislation from the Senate was sent to another committee than House Criminal Jurisprudence which heard the issue the first time. (This is the other.) Speaker of the House Joe Straus makes those calls. It's curious that the committee hearing the discovery bill most likely to pass isn't the one that's been considering the issue for the last month. Hard to know whether to read anything into that or not.

ALSO: The Homeland Security and Public Safety Committee on May 1 will hold a public hearing on the fertilizer plant explosion in West, which I suppose makes some sense but is a change of pace from the topics they usually cover.

SCOTUS ruling leaves Texas' warrantless DWI blood draws in legal limbo

Last week, the US Supreme Court (sort of) decided Missouri v. McNeely relating to the authority of police to take blood samples from DWI suspects without a warrant. See the opinions (pdf). A divided court split along non-partisan lines ruled (barely) that mere, natural dissipation of blood alcohol levels did not per se create exigent circumstances justifying the state to draw blood without a judge's approval. It left open, though, the possibility that other exigent circumstances, which the court declined to articulate, might conceivably justify warrantless blood draws. The decision has prosecutors around the state questioning whether relatd Texas law - which allows blood draws without a warrant for several types of felony DWI cases - may be in jeopardy.

Corporate welfare alert: Don't criminalize internet terms-of-service violations

There's a bill up in the House Criminal Jurisprudence today, HB 1064 by Luna Hernandez, which would criminalize accessing an open wi-fi connection without express permission - the new crime would be a Class B misdemeanor, normally, and a state jail felony if the open wi-fi belongs to a government entity. The Senate companion was amended in a way that's equally disturbing, SB 249 by Patrick, is over from the upper chamber and has been amended in ways that apply the same penalties for accessing any computer network in violations of " a contractual agreement," which in practice means a company's "terms of service" agreement.

These terms-of-service agreements have become a joke and criminalizing their violation would create a bevy of pointless prosecutions. A body of contract law already exists; there's no need to use criminal law to bolster it, especially when these "contracts" are so problematic. How many times have you agreed to a site's "terms of service" with just a click of a button that says "Agree" without reading the voluminous, small-print legalese that accompanies it? Everybody has; nobody reads those things.

In 2010, just to reinforce that point, a British gaming firm began satirically including in their "terms of service agreements" language that declared users agreed to literally sell their souls. The agreement read:

By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.

Some 7,500 people clicked "Agree" before the company revealed the joke and removed the language. Reported Fox News, "The terms of service were updated on April Fool's Day as a gag, but the retailer did so to make a very real point: No one reads the online terms and conditions of shopping, and companies are free to insert whatever language they want into the documents." That's precisely why criminalizing violations of terms of service is bad public policy.

As filed, Hernandez's bill that's up today criminalizes those who access someone else's computer network to "obtain a benefit." which would include accessing someone's open wi-fi network. As Grits wrote when the Senate bill was heard, 'Since accessing the internet for free is a benefit and effective consent is defined in the penal code as 'consent by a person legally authorized to act for the owner,' on its face accessing someone's wi-fi without their express permission would be a crime. Personally, I consider leaving wi-fi unsecured simply common courtesy, though internet service providers would like to restrict it for their own commercial benefit. As far as I'm concerned, criminalizing a neighbor using my wi-fi is akin to criminalizing their reading by my porch light. People can always restrict access if it bothers them." This bill is less about protection of the public and more about using law enforcement as corporate welfare to enforce terms-of-service agreements with wireless internet providers.

This is a bad bill. Too many unintended consequences would arise from the House version and the Senate version, which explicitly criminalizes terms of service violations, improperly uses criminal law to enforce private contracts. The legislation is a classic case of overcriminalization, usurping civil and contract law by imposing criminal penalties, including jail time, and shifting the enforcement burden onto the justice system. Both the House and Senate versions and should be roundly rejected.

Judge Sturns on Ken Anderson

A reader forwarded me a copy of Friday's ruling by Judge Louis Sturns against Judge Ken Anderson from the Michael Morton court of inquiry. Here's the link for those interested in reading the whole thing and a few related news stories for more background:

• Associated Press: Texas official faces charges in man's prosecution
• Austin Statesman: Statute of limitations first hurdle in misconduct charges against former DA
• YNN-Austin: Warrant issued for prosecutorial misconduct, Judge Anderson turns himself in to Wilco Jail
• Houston Chronicle: A big step for justice in Texas (editorial)

MORE: See analysis of the ruling from the blog Simple Justice. AND MORE: From Mark Bennett on the statute of limitations question. Y MAS: from Paul Kennedy.

Whitmire: Appointment of chairman's business associate to TDCJ board 'not smart'

Grits last week raised questions about the appointment to the Texas Board of Criminal Justice of Annette Raggette, a woman whose LinkedIn profile listed her as an employee of board chairman Oliver Bell. Raggette has now altered her profile to say she quit working for Bell in 2010 (it had previously said she'd worked for him for more than nine years, now it says seven, ending in 2010). Also, the website for Oliver Bell, Inc., has removed the page that listed her as a vice president of the company as of last week. (Grits' lesson: Always get a screen shot.) The changes appear to have been made after Mike Ward at the Austin Statesman's story yesterday in which Senate Criminal Justice Chairman John Whitmire said the appointment was "not smart" and "Without knowing anything else, the perception is certainly bad." The article ("Prison board appointee's business connection questioned," April 21) opened:

Questions are being raised about Gov. Rick Perry’s newest appointment to the Texas prison system’s governing board because she is a longtime business associate of the current chairman.

Officials confirmed that Annette Raggette, who owns a management consulting firm, worked for years for Oliver Bell, chairman of the Texas Board of Criminal Justice — a business tie that would be a rarity for two members of the nine-member prison board.

Though business ties between members of state boards used to be common in decades past, it has become rare in recent years, partly to avoid criticism about cronyism and to avoid the perception of voting blocks on agency boards — or that one might be beholden to another on important votes — that might compromise members’ independence in operating huge state operations such as the prison agency, the nation’s largest state corrections system with a $4 billion budget.

Raggette’s LinkedIn profile indicates she is vice president of Bell’s company, but prison officials said the online résumé is out of date. The online profile and prison officials say she worked for another Bell firm from 2003-2009.

Neither Raggette nor Bell returned phone calls seeking comment.

The Senate Nominations Committee is scheduled to consider her appointment today.

MORE: Nominations to the TDCJ board have been delayed while the Governor's office decides whether to withdraw her nomination. See an update from the Austin Statesman. Wrote Mike Ward:

Senate Nominations Committee Chairman Glenn Hegar, R-Katy, said a vote on Annette Raggette to the Texas Board of Criminal Justice was delayed indefinitely, along with two other reappointments to the nine-member board that oversees Texas’ corrections system, the largest in the United States.

“The (Raggette) nomination has not been withdrawn, it’s just on hold right now,” Hegar said, noting he expects a decision from Perry’s office this week on whether it will move forward with Raggette.

There has been speculation among senators that Raggette’s appointment may be withdrawn, after questions surfaced Friday about whether she should serve on the board since she was as business associate for several years with board chairman Oliver Bell.

FWIW, these questions actually arose Thursday, not Friday, when this blog broke the story of Raggette's employment links to the TDCJ board chairman.

Leach: Pro-life means protecting the innocent accused

Republican state Rep. Jeff Leach from Plano has a column in the Dallas Morning News promoting HB 166 by McLendon, of which he is a joint author, establishing an "exoneration review commission" to examine the causes of wrongful convictions. The column describes the cases of Christopher Scott, Michael Morton and Timothy Cole, then concludes:

I am unashamedly and passionately pro-life. I believe the most basic duty of government is to protect innocent life — from the womb to the tomb — which is why I am as passionate about protecting innocent defendants as I am about protecting the unborn.

This is why I am honored to joint-author HB 166, authored by my friend and colleague Rep. Ruth Jones McClendon, D-San Antonio, which would create a commission of nine members appointed by the governor to investigate wrongful convictions for the purpose of singling out the core causes of exonerations. Named the “Timothy Cole Exoneration Review Commission,” this nine-member commission would submit its findings to governmental agencies, identify any patterns of prosecutorial misconduct, and propose solutions through legislation or procedural changes, among several other tasks, all at no expense to the taxpayer.

While this legislation is only a small step toward resolving this growing trend, it is a step in the right direction no less, and I am proud of the bipartisan support it has received. We owe it to our citizens to make this right, and the time is ripe for the Legislature to act.

The bill is scheduled for a vote on the House floor tomorrow.

MORE: See an editorial supporting HB 166 from the Dallas News editorial board. AND MORE (4/23): from the Texas Tribune. UPDATE: The bill passed the Texas House April 23rd on second reading with some minor amendments. One more vote to go before it heads to the Senate. NUTHER UPDATE: The bill finally passed on a record vote of 115-28

RELATED: From the Austin Statesman, "Reforms prompted by Morton bill await action by state House."

Previewing committee highlights from the week ahead

Here's a quick look at a few bills of interest being heard in criminal-justice related committees this week at the Texas Legislature that jumped out at me: Click on the committee names for the full agendas.

House Criminal Jurisprudence

HB 967 by S. Turner is the companion to SB 344 by Whitmire which has already passed the Senate. The bills stem from a recommendation from the Timothy Cole Advisory Panel on Wrongful Convictions to amend the habeas corpus statute to allow petitions based on newly discovered scientific evidence that contradicts expert testimony at trial, an issue that has come up in cases from dog-scent lineups to so-called "shaken baby" cases. See more from Grits and the Texas Tribune.

HB 3164 by Stickland would require law enforcement to obtain a search warrant to access personal, cloud-based email older than 180 days old. Currently Texas' statute, tracking the 1986 federal Electronic Privacy Communications Act, does not require a warrant for electronic communications stored more than six months. See related Grits coverage.

HB 2964 by Alonzo would allow writs of habeas corpus in cases where a defendant "was not properly advised as to a material direct or indirect consequence of the plea." This would create in state habeas law a remedy for lawyers' failure to advised their clients of collateral consequences, following a recent SCOTUS precedent on-point in Padilla v. Kentucky.

HB 3637 by Hughes adds one sentence to the Code of Criminal Procedure defining the role of juries, declaring, "The court shall inform the jury of its role to judge the facts and to apply the law in relation to the facts in controversy." Sort of a throwback bill. In modern courts, judges interpret the law and narrowly proscribe what jurors may decide. That one sentence would be a pretty big change.

Senate Criminal Justice

SB 368 by Whitmire would "authorize a county sheriff to operate an electronic monitoring program or house arrest program for inmates serving a term of confinement in the county jail, with the sheriff selecting those inmates," according to the bill analysis. Seems like a common sense, permissive bill to reduce local jail costs.

SB 1360 by Rodriguez would enhance the penalty for witness tampering in domestic violence cases to a second degree felony. I wonder if he can effectively answer Marc Levin's questions?

SB 1439 by West would recodify all the statutes related to evidence retention and preservation in one section and "create a training and certification process for all law enforcement personnel assigned to receive, store and process property held in police evidence rooms." Professionalization of this long-ignored substrata of law enforcement is overdue.

House Corrections

HB 937 by Farias would create a restorative justice pilot program for juvenile offenders, bracketed to Harris County.

HB 2520 by Springer would increase juvenile probation fees 400% from $15 to $60, comparable to what adult probationers pay, and also increases certain juvenile court costs a whopping 1,500%, from $20 to $300.

HB 2650 by Allen would empower the Criminal Justice Legislative Oversight Committee - made up of the chairmen of House Corrections, Senate Criminal Justice and appointees of the Speaker of the House and Lt. Governor, to provide for the regular inspection of at least 25 adult prison units per biennium.

House Judiciary and Civil Jurisprudence

SB 393 by West, according to the bill analysis, would "remove ticketing as a means to address certain behaviors on school district property and puts in place a complaint-based system, similar to what is currently done for truancy. It establishes graduated sanctions, such as warning letters, school-based community service, or referral to counseling, for juveniles who committed certain fine-only misdemeanors prior to referral to court.  It expands the use of juvenile case managers by allowing for their use without a formal court order and prior to cases being filed.  Finally, it authorizes local juvenile boards to authorize law enforcement to dispose of certain fine-only offenses without referral to a court, and adds Class C misdemeanors, other than traffic offenses, to the list of offenses that can be disposed of through the use of first offender programs."

SB 462 by Huffman would create "a new Subtitle K within the Government Code where all relevant specialty court provisions can be easily located; improves oversight of specialty court programs by requiring them to register with the criminal justice division of the Office of the Governor and follow programmatic best practices in order to be eligible to receive state and federal grant funds; and changes the composition of the Governor's Specialty Courts Advisory Council to nine members and requires the council to recommend programmatic best practices to the criminal justice division." Specialty courts have sprawled across the state rapidly over the last decade, in many different forms, so it's probably a necessary evil for the state to begin to get a better handle on them. The rubber will meet the road when the Specialty Courts Advisory Council (SCAC) created last session recommends "programmatic best practices" and the Texas Judicial Council approves them. All I can say is I hope they do a good job. The quality of those best-practice guidelines will be what determines, ultimately, whether this bill is a good thing or a bad one. MORE (4/22): See KUT News coverage.

As Senate bills being heard in a House committee, both of these are well on the way to passage.

House Homeland Security and Public Safety

HB 3246 by Callegari declares that "a person may not be assessed a fine for driving within 10 miles per hour of the posted speed limit unless in the opinion of the officer, adverse weather or traffic conditions, or other hazardous situations constitute an imminent danger to the general public." There are exceptions near schools, hospitals, and when officers judge weather or other conditions create an imminent danger.

I was happy to see this committee unanimously voted out HB 104 by Gonzales last week. The committee substitute would eliminate the Driver Responsibility Surcharge for two years to try to find alternative hospital funding. Hopefully the Calendars Committee will give it a floor vote soon.

* * *

See also the Texas District and County Attorneys Association summary of current action on related topics, where Shannon Edmonds rightly notes that, "This week is probably the last week for House bills to get a hearing in a House committee before they are unofficially declared dead—and truthfully, most of the ones being heard this week already have one foot in the grave, which is why you will start to see Senate bills debated in House committees.  Senate bills have another week of life in their own committees because of more lenient deadlines in that chamber, but they also must move quickly to avoid the hangman’s noose."

Levin: 'Look Askance Before You Enhance'

The headline to this post is the title of a two-page policy brief from Marc Levin at the Texas Public Policy Foundation giving legislators guidance when considering new criminal penalty enhancements. Here are the questions Levin says legislators should be asking. (See the full  document for more detail.)

• Have sentences already gotten tougher?
• Is there evidence that current penalties are ineffective?
• Will an enhancement deter the conduct?
• Does the enhancement reduce the discretion of judges, juries and corrections officials?
• Will the enhancement make the penalty for the offense more or less commensurate with other penalties?
• Are there other solutions?

This is a sequel to his 2011 document, "Analyze Before You Criminalize."

Please use the comments to suggest other potential, rhyming titles along these themes for Marc's 2015 edition, e.g., "Don't enhance with insouciance," or "New crime weaning time."

Does the 'right to remain silent' require silence or 'magic words'?

On Wednesday, the US Supreme Court heard oral arguments in Salinas v. Texas (see prior Grits coverage) in which the Texas Court of Criminal Appeals ruled that prosecutors may argue that silence in response to questioning demonstrates guilt if the questions were asked prior to the defendant being taken into custody and read their Miranda rights. Here's a link to the transcript (pdf) and the TXCCA opinion being challenged.

At SCOTUSBlog, Lyle Dennistron suggested that, "If the sentiment that seems to run high in a Supreme Court hearing dictated how a case would come out, the Justices might well be on their way to declaring that the Constitution forbids prosecutors from telling juries that a suspect’s silence when talking to police in any criminal investigation means he is guilty."

In technical legal terms, [Stanford Law Prof. Jeffrey] Fisher was arguing that, in the pre-arrest context, when an individual is being questioned, the suspect should not have to explicitly claim the Fifth Amendment privilege in order to keep his silence in response to a damaging question from being used against him.

The state of Texas, with the support of the federal Department of Justice, told the Court that in no situation before trial should the Fifth Amendment privilege apply unless the individual explicitly, or by strong implication, says something to claim that right.   While no prior precedent of the Court settles whether the Fifth Amendment does or does not apply in that circumstance, the Texas lawyer at the lectern Wednesday, Alan K. Curry, encountered a largely skeptical Court in reaction to his plea for such a flat limitation of Fifth Amendment rights.

Curry argued that, if an individual does not invoke the Fifth Amendment, then silence in response to a specific police question about the crime should be open to the prosecutor to use against the individual at the trial.

The debate seemed to center on whether a defendant must specifically utter "magic words" to invoke their Fifth Amendment right or whether merely exercising the right, as opposed to invoking it, is enough to secure the privilege. Fisher argued that requiring such magic words amounts to "nothing more than a trap for the unwary, who is told, through culture and learning, that he has a right to remain silent." Mr. Salinas, he said, did the "one thing that is consistent with his right, which is exercising it," and so the state should not be able to "walk into court and say, because he remains silent, he's guilty of a crime; jury, you should conclude he's guilty of a crime."

That's exactly what happened in this case. Police questioned Salinas for nearly an hour about other possible suspects, but he turned mute and refused to answer once they began asking questions that indicated they considered him a suspect, in particular whether ballistics would match a shotgun he owned to shell casings found at the crime scene. Here's an excerpt from the Harris County prosecutor's closing argument that's in dispute:

The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody – there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there. He didn’t respond that way. He didn’t say: No, it’s not going to match up. It’s my shotgun. It’s been in our house. What are you talking about? He wouldn’t answer that question. 

If the the defendant had either a) been in custody or b) expressly stated "I invoke my Fifth Amendment right to remain silent," even the state granted that the prosecution's closing argument would have been improper. The state's argument hinged on a distinction between custodial and non-custodial interrogations, hanging their hats on the fact that past SCOTUS precedents dealt solely with questioning while in police custody.

In a preview of the case, SCOTUSBlog laid out (and linked to) the key court precedents relied upon by the state, but as Mr. Fisher pointed out those were instances where the defendants' silence on particular questions was used to impeach their testimony after they'd chosen to take the stand at trial. I hope Denniston is correct in his tea-leaf reading and SCOTUS extends Fifth Amendment protections to pre-custodial interrogations. IANAL but the idea seems like a no-brainer to me.

Washington state crime lab faces Texas-size quandary: How to deal with old cases processed by lab manager accused of misconduct?

Grits has been highlighting the overturned convictions based on alleged misconduct by a former analyst at the DPS crime lab in Houston and has compared the episode to a similar but even larger-scale scandal out of Massachusetts involving tens of thousands of cases. Now another, similar, case has cropped up in Washington State, reported AP:

The manager of the state crime lab in Cheney resigned last week as authorities determined he lied about performing work in several cases, the Washington State Patrol said Tuesday.

Kevin Fortney headed the Cheney lab for about a decade. His subordinates prompted the investigation by reporting their concerns to Fortney's boss, the commander of the patrol's Crime Laboratory Division, the patrol said in a news release. ...

Fortney was previously mentioned in a 2004 Seattle Post-Intelligencer story about ethical problems at the patrol's crime labs: In late 2000, he was suspended for two days after admitting he cruised Internet porn sites at work, disciplinary records showed.

The patrol documented at least five cases - mostly arson investigations - in which Fortney reported in a computer system that he had completed work when other records proved he was lying, said patrol spokesman Bob Calkins.

Just as in Texas, whatever management implications there are from the scandal, front-line workers at the lab deserve credit for outing the alleged bad actor. But that doesn't resolve the question of how to handle all the cases the fellow worked on in the past, nor what changes could be made to improve day-to-day oversight. The Chairman of the Texas Forensic Science Commission, Dr. Vincent DiMaio, argued earlier this month that the state should develop "disaster protocols" for when large numbers of cases are called into question by labworker misconduct. Apparently we're not the only state that needs to consider such contingency measures.