R.I.P. Harris County DA Mike Anderson

Harris County DA Mike Anderson passed away this morning in hospice care, the Houston Chronicle reported. "Anderson, who announced in May that he had cancer, died Saturday from the illness." Condolences to his family and friends. Murray Newman offered personal remembrances; Kuff explains why he voted for Anderson in the 2012 general election.

Prison phone rates decline after FCC vote.

Source: Campaign for Prison Phone Justice

The Campaign for Prison Phone Justice has put out this fact sheet (pdf) in the wake of the Federal Communication Commission's recent decision to regulate prison phone rates. "In their order, the FCC acknowledged that the prison telephone industry has failed to deliver either competitive rates or choices to inmates and their families." The new rules regulate how much prison systems and vendors can profit from phone revenue, setting maximum "safe harbor" rates for phone calls where excessive rates are presently on the books.

On the campaign's website, there's a fascinating chart (pdf) created before the FCC ruling showing how widely states vary in prison phone costs. Texas' rates are around the middle of the pack, to the extent it's possible to make apples to apples comparisons. That table had TDCJ receiving a 40% "kickback" on the costs families pay for inmate phone calls. Under the new rules, said the fact sheet, "Costs resulting from kickbacks cannot be passed on to inmates and their families, and are no longer considered part of the cost of providing phone service."

After the FCC ruling, according to this chart (pdf) posted by the campaign, TDCJ rates for a 15-minute call would decline by 32.5%, from $6.45 to $4.35. The old rate for collect calls was $.26 per minute for in-state calls and $.43 for calls out of state, with $2.49 per month tacked on for "billing" costs. (Source.) Grits emailed the TDCJ Public Information Office to ask for the updated rates and will pass them along when I get them.

Entrepreneurial jails and the excuses made for them: TDCJ prison closures not contributing to county jails pops!

Add Walker County to the list of jurisdictions that ended up raising taxes to pay for an expanded jail that was pitched as a moneymaker. Reported the Huntsville Item ("Sheriff speaks about new jail," Aug. 27):

County officials said Tuesday that some of the budget cuts proposed by citizens at the second of two public hearings on a proposed 7 percent tax increase would hurt — not help — residents.

People lined up to speak their minds about the county’s proposed tax increase at two public hearings recently. Virtually all were against the tax increase, some saying higher taxes would mean selling their homes or continuing to put off medical treatment.

County officials are proposing to adopt a tax rate of 67.78 cents per $100 taxable assessed valuation for fiscal year 2013-14. That is 2 cents more than the Walker County Appraisal District’s calculated effective rate of 65.78.

The tax increase would help the county cover operating expenses for the new jail and give non-elected or appointed county employees a 3 percent raise in pay.

Citizens told commissioners they done their own line item review of the 2013-14 fiscal year budget and Monday night suggested trimming the county’s budget by eliminating employee raises and additional jailer positions for the new Walker County Jail facility, which is set to open in 2014.

Predictably, the Sheriff replied, “Our goal is to create a revenue stream with other counties paying us to house their inmates.” Regular readers know how well that's worked out for other Texas counties. Meanwhile, some of the Sheriff's justifications for a full jail were utter rubbish.

A couple of citizens asked the commissioners during the hearing why they approved the construction of the new jail when the Texas Department of Criminal Justice is shutting down prisons around the state.

McRae said that the closing of TDCJ prisons was putting more of a burden on county jail facilities.

“The way the law currently is, if TDCJ continues to close prisons, the county jails are going to see more inmates,” McRae said. “When the inmates are sentenced, they have to stay at the county jails longer while TDCJ searches for a place to house them. The Texas Sheriff’s Association has a big concern about this.

“Our goal is to create a revenue stream with other counties paying us to house their inmates,” - See more at: http://itemonline.com/local/x865763946/Sheriff-speaks-about-new-jail#sthash.llG8Jxdj.dpuf

To be clear: It's just not the case that TDCJ's prison closures created any backlog. Senate Criminal Justice Committee Chairman John Whitmire said this month there were more than 2,000 empty beds at TDCJ, suggesting inmates from the Connally unit could be moved elsewhere after their water supply was disrupted for the second summer running. They weren't. TDCJ has plenty of beds and the closure of two facilities did nothing to increase the burden on county jail populations. It's simply a false allegation. A reporter for the Huntsville Item, of all papers, should have caught that fib!

County officials said Tuesday that some of the budget cuts proposed by citizens at the second of two public hearings on a proposed 7 percent tax increase would hurt — not help — residents.

People lined up to speak their minds about the county’s proposed tax increase at two public hearings recently. Virtually all were against the tax increase, some saying higher taxes would mean selling their homes or continuing to put off medical treatment.

County officials are proposing to adopt a tax rate of 67.78 cents per $100 taxable assessed valuation for fiscal year 2013-14. That is 2 cents more than the Walker County Appraisal District’s calculated effective rate of 65.78.

The tax increase would help the county cover operating expenses for the new jail and give non-elected or appointed county employees a 3 percent raise in pay.

Citizens told commissioners they done their own line item review of the 2013-14 fiscal year budget and Monday night suggested trimming the county’s budget by eliminating employee raises and additional jailer positions for the new Walker County Jail facility, which is set to open in 2014 - See more at: http://itemonline.com/local/x865763946/Sheriff-speaks-about-new-jail#sthash.llG8Jxdj.dpuf

County officials said Tuesday that some of the budget cuts proposed by citizens at the second of two public hearings on a proposed 7 percent tax increase would hurt — not help — residents.

People lined up to speak their minds about the county’s proposed tax increase at two public hearings recently. Virtually all were against the tax increase, some saying higher taxes would mean selling their homes or continuing to put off medical treatment.

County officials are proposing to adopt a tax rate of 67.78 cents per $100 taxable assessed valuation for fiscal year 2013-14. That is 2 cents more than the Walker County Appraisal District’s calculated effective rate of 65.78.

The tax increase would help the county cover operating expenses for the new jail and give non-elected or appointed county employees a 3 percent raise in pay.

Citizens told commissioners they done their own line item review of the 2013-14 fiscal year budget and Monday night suggested trimming the county’s budget by eliminating employee raises and additional jailer positions for the new Walker County Jail facility, which is set to open in 2014 - See more at: http://itemonline.com/local/x865763946/Sheriff-speaks-about-new-jail#sthash.llG8Jxdj.dpuf

Judge pondering habeas writ based on erroneous science testimony

Speaking of cognitive bias in forensic examinations, Jordan Smith at the Austin Chronicle this week published a story ("Can Keller conviction stand without physical evidence," Aug. 27) on the locally infamous case of Fran and Dan Keller, who were convicted in the early '90s of sexually assaulting children at a daycare they ran in Oak Hill. A habeas corpus writ filed in January on Fran's behalf disputed a key forensic examination of one of the children by an emergency room doctor who diagnosed a girl's normal hymen as having been damaged. Jordan's earlier reporting on the case dug up new information that helped spur the current writ application. KUT also had coverage of the hearing.

Paraphrasing the doctor's recantation in court, Smith wrote that he came to the case in "good faith," but with "an institutional bias toward nabbing bad guys" and ignorance of the basic science about which he was testifying. His testimony was the only physical evidence supporting the conviction, which otherwise was based on sometimes fanciful testimony by children and allegations by a therapist of satanic ritual abuse. Back in 1994, Gary Cartwright's Texas Monthly feature on the case concluded, "What happened at Fran’s Day Care Center was a tragedy. If the Kellers did even a fraction of what is alleged, they got what they deserved. If they didn't, then the tragedy is compounded beyond measure, because the children believe that the stories of humiliation and torture that they were encouraged to tell are real and also because innocent people are in prison, their lives and the lives of their families wrecked. Stories of unimaginable horrors have been told and repeated and refined so many times by parents, therapists, and law enforcement authorities – told with such passion and conviction that they are permanently planted in these children's minds. In that respect, some form of ritual abuse obviously took place."

Keller's writ is pending before retired District Judge Wilford Flowers, who heard the original case.

Cognitive bias and forensics: Expert psych testimony may change depending on which side calls them

Among randomly chosen forensic psychologists, found a new study from researchers in Texas and Virginia, "experts who believed they were working for prosecutors tended to rate sexually violent offenders as being at greater risk of re-offending than did experts who thought they were working for the defense." Reported the magazine Popular Science ("Researchers expose troubling bias in forensic psychology," 8/28):

It's already known, of course, that lawyers may choose to call only experts who support their cases. So there's probably a biased sample of psychologists going on the stand in the U.S., anyway. But four psychologists from the University of Virginia and Sam Houston State University wanted to see if a large sample of psychologists, chosen without a side in mind, might also be vulnerable to bias.

he researchers recruited 99 forensic psychologists and psychiatrists, pretending that they wanted help with real cases. (Well, the cases files were real, but the forensic psychologists' evaluations wouldn't have an effect on the real defendants' trials.) The researchers gave each of the forensic experts the same four case files, but told half of them that the defense had hired them, while telling the other half that the prosecution was paying the bills. The cases the experts examined were for violent sexual offenders, whose sentences depend heavily on their perceived likelihood of reoffending.

On average, in most measures, the defense-hired experts came to significantly different conclusions than the prosecution-hired ones. This was using surveys that previous studies have shown work well—that is, a bunch of psychologists assessing someone using the surveys will generally come to the same conclusions—when they're not used in court.

"Most expert witnesses believe they perform their job objectively. These findings suggest this may not be the case," one of the researchers, Daniel Murrie of the University of Virginia, said in a statement. He and his colleagues' work points to a need for scientists to develop ways to reduce this bias, they wrote in a paper they published last week in the journal Psychological Science.

It's unlikely that only forensic psychology suffers in this regard. The results remind me of studies of fingerprint examiners who said the same set of fingerprints were a match in one context and, given a different set of fact circumstances, said they were not. And of course, both sides gravitate toward their favorite experts who are more likely to support the state's or the defendant's point of view. The state, though, is more likely to have money to hire them.

If who hires forensic psychologists matters significantly, that helps explain findings in a study released earlier this year by the same research team, described here by Dr. Karen Franklin, showing that Montgomery County jurors in civil commitment cases paid little attention to risk assessment scores, which they didn't trust nor understand. "What did make a difference to jurors was whether the defense called at least one witness, and in particular an expert witness," wrote Franklin. "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." Now that this followup study suggests who hires a forensic psychologist can substantively influence their testimony, the question becomes, to what extent has that imbalance has significantly affected real-world outcomes?

New limits on Texas ISD cops giving tickets for breaking school rules

The Texas Tribune has a feature on one of the more significant juvenile justice reforms from the 83rd session: Eliminating most Class C tickets given to students for violations of school rules. The story by Jody Serrano ("School officers can no longer issue on-campus citations," Aug. 29) opens thusly:

Public school students in Texas who have chewed gum in class, talked back to teachers or disrupted class have often received citations from school police officers. Beginning in September, students who engage in such levels of misbehavior will face discipline in a different manner.  

While school administrators and teachers have traditionally handled student discipline, some school districts in Texas over the years have allowed school police officers to deal with certain types of misbehavior by charging students with Class C misdemeanors, a practice commonly referred to as student ticketing. Students charged must appear before a county or municipal judge and can face fines of up to $500 if found guilty by a judge.

Students who do not pay their fines could be arrested as soon as they turn 17 years old. Even if students pay the fines, the offenses could still appear on their criminal records.

The Legislature took steps this year toward decriminalizing such misbehavior at school with Senate Bill 393 by Sen. Royce West, D-Dallas. The measure prevents school police officers from issuing citations for misbehavior at school, excluding traffic violations. Officers can still submit complaints about students, but it will be up to a local prosecutor whether to charge the student with a Class C misdemeanor.

If students are charged, prosecutors can choose to make students get tutoring, do community service or undergo counseling before they get sent to court. According to the Texas Supreme Court, roughly 300,000 students each year are given citations for behavior considered a Class C misdemeanor, including disruption of class, disorderly language and in-school fighting.

TDCJ guard union joins inmate litigation over excessive heat

You might not think prison guards and inmates have much in common, but on the question of too-hot prisons they've found a mutual interest. Reported Mike Ward at the Austin Statesman ("Guards to join convict litigation over hot state prisons," Aug. 29):

The union that represents Texas’ correctional officers on Thursday announced its support for lawsuits filed over the deaths of at least 14 convicts in sweltering state prisons, saying the lockups should be cooled to relieve unbearable and dangerous conditions.

At a time when civil-rights lawsuits are pending in several Southern states, where the summer heat is hottest and most state prisons are not air conditioned, the development could add new impetus to a public debate in Texas over whether the time has come for some form of cooling systems.

At a press conference in Austin, Lance Lowry, president of a Huntsville-based local of the American Federation of State County and Municipal Employees, said the union plans to join in pending litigation — including a possible request for federal court intervention over temperatures inside prisons that he said can reach 130 degrees on some days.

The article closed with details of the guard's complaints:

A temperature log at the Hutchins State Jail outside Dallas shows heat indexes of 150 degrees July 19, 2011, among other readings reaching well over 100 degree at other times that same day. In general, the outside air temperatures recorded at those times were about 10 degrees cooler.

For Lowry and other Texas correctional officers, working in temperatures that hover around 100 degrees in summer months is too much — especially for correctional officers who are on heat-sensitive medication, are obese or have hypertension and other health issues.

“It feels like you’re working inside a convection oven,” said Lowry, a 13-year veteran. And the large fans that have been installed in prisons, “just blow hot air … . The noise can drown out cries for help, even calls on the radio.”

Lege committee looking to tweak Drivers Responsibility Program; incentive program about to gear up

The Texas House Homeland Security and Public Safety Committee plans to draft legislation during the interim to reform, but likely not eliminate, the Driver Responsibility Surcharge - at least unless somebody finds a source to supplant the revenue generated by the program. Go here to watch Monday's hearing online, with the portion on surcharges beginning at the 1:37:15 mark.

Rebekah Hibbs, who runs the program for DPS, told the committee a new "incentive" program for drivers between 125% and 300% of federal poverty levels will come online by the first of October, joining a more generous indigency program created in 2010. Drivers who qualify can have their surcharges reduced by 50% and pay the amount in a lump sum or over a six month stretch. (Those who qualify for the indigence program can have them reduced even more.)

Only four states have similar programs and none are very successful, said committee Chairman Joe Pickett, who appears to have been delving into the weeds on the topic. Since the Driver Responsibility Program's implementation in 2003, the state has assessed $3.2 billion in surcharges but only received about $1.2 billion in payments. That $2 billion in unpaid surcharges has caused a couple of million drivers to lose their licenses, with more than 1.2 million of them still suspended as of this week. Because most of these are working people who need their car to drive, Williamson County Justice of the Peace Edna Staudt told the committee, they usually continue to drive anyway.

Staudt and Hibbs disputed whether DPS will allow those folks to get an occupational license. Hibbs insisted it was legal but Judge Staudt said as a practical matter "they won't do it." A committee member who was an attorney (couldn't tell who from the video) said his firm charges $2,500 to secure an occupational license, so that's probably not a realistic option for low-income folks, anyway.

These surcharges are issued for accruing too many points from moving violations, driving without insurance, driving with a suspended license, and DWI, but the driver of such enormous numbers are tickets for no insurance. This can create a vicious cycle: People can't afford insurance and get ticketed. They pay the ticket but can't afford the surcharge so their license is suspended, anyway. Because they must get to work, they keep driving, then if they're stopped again they get more surcharges for both the insurance offense and driving with a suspended license.

By then, even if they pay the surcharges their license is still suspended for at least a year, giving them little incentive to pay up. To get their license reinstated they must pay even more fees - between $100 and $425, the committee was told. No wonder nearly 2/3 of surcharges go unpaid.

In response to questioning, Hibbs told the committee that these surcharges could be eliminated through Chapter 13 bankruptcies but not Chapter 7. Rep. Dan Flynn pointed out the oddity of that situation: Chapter 13 is a reorganization of debt while typically Chapter 7 is more sweeping. But Hibbs said a case styled Holder v. State of Texas (a driver named Holder, not the US Attorney General) found that the surcharges were essentially similar to a criminal punishment and therefore couldn't be vacated. That's bizarre considering these are explicitly civil surcharges over and above any criminal penalties, but that was the ruling.

Judge Staudt argued for abolishing the program entirely and going back to punishing these offenses exclusively through the court system. "It's an unjust program," she told the committee. Texas is "creating a debtors prison," she said, lamenting that there's "no due process" in the application of surcharges.

Chairman Pickett asked Staudt how to replace the trauma care funding and she suggested it would be better to do it through court fees, which are presently $95 on most traffic tickets, she told the committee. Pickett said there was "no way" the Lege would eliminate the program without an alternative funding source but Staudt replied, "I beg you to look at the fact that you're going to have to put the need for the money aside." Right now, she pointed out, the "state gets money from the program but the counties, the courts, and the people are paying the price." The overall cost to the locals, she said, was greater than the benefit to the state.

Grits should also mention a report from the state auditor issued earlier this year on the contract with Municipal Services Bureau to run collections for the surcharge program. The report criticized DPS for two significant errors: Failing to run the contract by the Legislative Budget Board before approval and failure to notify competing bidders of changes to the RFP. That gave MSB the upper hand because competitors didn't know to update their bid applications in light of additional requirements. The audit was not discussed at Monday's hearing but Hibbs told the committee the contract will be up for re-bid in late 2014.

The audit also revealed that MSB is raking in more money than just the 4% commission that's been previously disclosed, charging debit and credit card fees as well as an extra fee for each payment in an installment plan. According to the audit, "For example, an individual convicted of driving while intoxicated will be assessed a surcharge of $1,000 per year for three years. If the individual uses a credit card to make monthly installment payments over three years, that individual would pay a toal of $3,286.50: $120 in service fees, $76.50 in credit card fees (unless prohibited by law), $90 in installment fees, and the $3,000 surcharge." By those figures, MSB would be charging drivers an additional 5.5% on top of their 4% commission if they used a credit card to pay in installments. In all the years Grits has been working on this issue, that's the first I've heard of those extra costs.

Rep. Dan Flynn said the committee is looking more seriously at revamping the program than ever before and that appears to be the case. If one were to judge by suggestions from Hibbs and Staudt at the hearing, we could see them eliminate or scale back mandatory drivers license suspensions and perhaps explicitly change the law to allow surcharges to be discharged through bankruptcy proceedings. They could also streamline the occupational license program so you don't have to pay a lawyer $2,500 to get one. (Hibbs said she'd sent three pages of reform suggestions to Pickett, but when Grits requested the document from DPS their public information office wouldn't give it to me and said to file an open records request. I did; more on that later, hopefully.)

Really, though, Judge Staudt nailed it: This is a bad, "unjust" program that should be flat-out eliminated. If the state wants to subsidize trauma hospitals (despite all the Ted Cruz rhetoric hailing the benefits of market forces in healthcare), they should do it with general revenue dollars. The state hasn't even been paying hospitals the full amount, instead using DRP funds to "certify" the budget instead of doling out the full sums. Punish traffic offenses through the courts: At the end of the day, the DRP surcharge is and always has been just a tax by another name.

Pickett said he expected this issue to be among the committee's interim charges when they're finally released, meaning they'd likely have at least one more hearing on the topic before the 84th session convenes in 2015. However, he said he hoped to have a first draft of possible reform legislation put together by the end of the year.

See prior, related Grits posts:

• Piling on: TPPF offers more reasons to abolish Driver Responsibility surcharge
• House rep promotes abolition of Driver Responsibility surcharge
• Is 2013 the year legislators axe Orwellian-named Driver Responsibility surcharge?
• Did the Driver Responsibility Surcharge cause Texas' voter ID law to be rejected?
• Few defendants getting surcharges waived by judges based on indigence
• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'

Tuff-on-crime ideology should play no role in Williamson County forensic science

The Austin Statesman last week published an ill-considered op-ed by Williamson County Justice of the Peace Bill Gravell titled "Time to plan for medical examiner's office and crime lab" (Aug. 22) arguing that Williamson County should create its own medical examiner's office and crime lab instead of continuing to rely on larger Travis County. Here are the three reasons Gravell argues Williamson County should reject a proposal for joint expansion and chart its own path:

First, the Travis County project lacks clarity. The numbers were unclear and confusing. One supporter of the Travis County plan stated the project would cost between $400 and $600 dollars per square-foot simply for the bricks and mortar. Williamson County would be expected to contribute between $6- and $8 million, while continuing to pay the cost of each autopsy. The fine folks of Williamson County know the value of a dollar. We are fiscally very conservative. A project costing $600 per square-foot would put many of us in the morgue.

Second, we have different values than Travis County. People move to Williamson County because of our values. We like the tough on crime attitude and our small-town feel. Our elected officials have a strong track record of working together. Is it wise for us to collaborate on a multi-million dollar project when our political, financial and philosophical views are so divergent? I don’t think so.

Third, the plan lacks vision. We are a people from strong stock. It is time for us to be independent and be visionary leaders. Williamson County is one of the fastest-growing counties in America. Within the next 25 to 30 years, we will exceed Travis County in size.

Reasons one and three are essentially the same ("lacks clarity," "lacks vision") and the economics of the proposal are a judgment call, even if rhetoric like "put many of us in the morgue" sounds like silly hyperbole. On its face, one would think both counties would benefit from economies of scale and that it'd be cheaper in the long run to run just one shop, though the devil inevitably lies in the details. This is an area where skimping on costs up front can generate larger costs and delays on the back end. Running a crime lab involves ongoing investments in both lab tech and personnel. It's not something counties should try to do on the cheap.  The Houston Chronicle opined several years ago that, "In Houston, we're now paying a high cost for trying too hard to save money on forensics."

But it's reason number two that raises a big red flag. Whether Williamson County residents have a "tough on crime attitude" or a "small-town feel" should have zero implications for how a crime lab does its business. Crime labs operating essentially in the pocket of law enforcement have created big headaches for the agencies that run them - ask the City of Houston and most recently, the state of Massachusetts, where lab techs viewed themselves as part of the law enforcement team instead of acting as independent scientists rigorously evaluating evidence.

Notably, eliminating conflicts of interest and cognitive bias were big reasons the National Academy of Sciences in 2009 recommended making crime labs independent of law enforcement agencies. There's too much potential for cross-contamination when police and prosecutors are in a position to pressure scientists for the results they want.

The Michael Morton case out of Williamson County provides an excellent example of how biased science can lead to catastrophic results. Robert Bayardo, the Travis County medical examiner who testified in Morton's case, was exactly the sort of ME who viewed his role as an agent of the prosecution instead of an independent, objective scientist. (Bayardo notoriously never took notes during autopsies so that defense counsel couldn't later subpoena them.) Texas Montly's Pam Colloff described how Bayardo changed his testimony to implicate Morton after meeting with prosecutors:

Originally, based on his belief that she had eaten dinner as late as 11 p.m., Bayardo had found that Christine could have died as late as 6 a.m., a half hour after Michael left for work. But the medical examiner would later testify that he made that determination when “I didn’t know all the facts. I didn’t know when she had her last meal.” Bayardo changed his estimate shortly after [prosecutors] Boutwell and Anderson visited the City Grill and retrieved a credit card receipt showing that Michael had paid for their meal at 9:21 p.m. According to Bayardo’s revised time of death, Christine could not have died after 1:30 a.m.

This conclusion was based on an examination of her partially digested stomach contents, a notoriously imprecise method for determining the time of death that was not recognized, even 26 years ago, as sound science. Bayardo’s math also defied logic; although the time that the Mortons’ dinner ended had been revised by less than two hours, he had adjusted the estimated time of death more dramatically, by nearly five hours. Still, his conclusion was crucial to the state’s case: besides [Morton's son] Eric, the only person who had been with Christine between 9:30 p.m. and 1:30 a.m. was Michael.

Though Bayardo told Morton's attorneys he was "very much disturbed" that prosecutor (now judge) Ken Anderson misrepresented his forensic testimony to the jury, he never stepped forward to say so until DNA testing exonerated Morton a quarter-century later. Morton's exoneration was an internationally publicized disgrace for Williamson County, but it sounds like Judge Gravell is willing to risk replicating that approach.

From an economic perspective, one can debate whether Williamson County should own and operate its own crime lab. But to argue based on the county's "values" that it needs a pro-law enforcement crime lab and medical examiner's office defies basic ethics and common sense.  Science should stand on its own, independent of the values held by jurors who hear the evidence or the voters electing the judges and DA. It's fairly stunning to see that argument made in Williamson County so soon in the aftermath of the Michael Morton exoneration.

Justice for Sale: Cameron judge took bags of cash to influence court outcomes

Via AP (Aug. 21), here's the denouement of an  extraordinarily ugly story of South Texas corruption:

A former judge who turned his South Texas courtroom into a money-making operation was sentenced Wednesday to six years in prison followed by three years of supervised release.

U.S. District Judge Andrew Hanen sentenced former state district Judge Abel Limas, 59, on one count of racketeering in Brownsville, on the border with Mexico. He also ordered Limas to pay almost $6.8 million in restitution. ...

Limas drew the FBI's attention in late 2007 as he neared the end of his second term in office. Investigators intercepted some 40,000 phone calls and collected surveillance photos documenting how Limas had converted his courtroom into a criminal enterprise, collecting bribes and kickbacks totaling $257,000.

Limas pleaded guilty in 2011 and became the government's star witness in four related trials that shook Cameron County's justice system. He could have faced up to 20 years in prison but received credit for cooperation.  ...

Racketeering is a charge typically associated with organized crime. But in Limas' case, prosecutors said his courtroom was the criminal enterprise where he generated cash.

Limas took kickbacks from friends, accepting thousands of dollars for favorable rulings. In one case, he accepted $5,000 in cash handed to him in a McDonald's bag by then Cameron County District Attorney Armando Villalobos, just to keep his mouth shut. ...

In March 2010, Limas was summoned to by the FBI. A year later, he pleaded guilty to one count of racketeering and agreed to cooperate with authorities.

Limas talked to the FBI more than three-dozen times and became federal prosecutors' star witness at all four trials that followed. He helped take down the sitting district attorney and a former state lawmaker [ed. note: this was Jim Solis], and cast doubt on a large chunk of the Cameron County bar.

Even beyond the dozen people charged in the investigation, Limas implicated many more attorneys in his testimony for practices that were at a minimum unethical.

See coverage from the McAllen Monitor of related civil litigation published recently while Grits was out of town. Here's more background on the former DA's role.

Texas reforms helping change D.C. gridlock on drug-law sentencing

Changing attitudes in Texas are altering the conversation in Washington D.C. about drug law reform. For evidence, check out these two items published today which both cite Texas de-incarceration strategies as contributing to new momentum for reforming federal drug laws:

• The Hill: Amid gridlock, a surprising accord on drug-law sentencing
• The American Prospect: Prison reform: No longer politically toxic?

RELATED: Ideology, interest and Texas' probation reforms

'Dallas police are finding drug houses by walking up and asking'

It has long amazed Grits how frequently people - both law abiding folks and criminals - give police consent to search, both at traffic stops and in their homes. The Dallas News has a fascinating story ("Dallas police are finding drug houses by walking up and asking," Aug. 25) about:

Source: Dallas Morning News.

how a 3-month-old “knock-and-talk” task force finds criminals.

The task force is part of a renewed effort to target small-time drug dealers after the department reduced the number of undercover detectives dedicated to investigating low-level drug crimes more than two years ago. Police shifted their focus to larger-scale traffickers, but now they blame petty drug disputes for an uptick in murders this year.

Since the 46-member knock-and-talk task force started in May, its officers have made 509 arrests and seized 131 firearms and 404 pounds of drugs, said Deputy Police Chief Christina Smith, who oversees the narcotics division. The task force also has made 399 possible drug house contacts.

“It’s another way to lower crime and to make good arrests that will end up putting and keeping the criminals in jail,” Smith said.

But some experts say knock-and-talks are risky and may yield only the easiest cases.

The investigations rely mostly on neighbors’ tips about unusual activity. Uniformed officers walk up to front doors and ask for permission to go inside. Police record the audio of the conversations to ensure that they have explicit consent to enter.

Consent searches have sometimes been abused at traffic stops, leading several Texas jurisdictions to require written consent to search. In Austin, after racial profiling reports found significant racial disparities regarding who was subjected to consent searches, the department began to require officers to get supervisors' permission before performing them. Over time, once the low-hanging fruit has been disposed of, Dallas may find similar problems with "knock and talk." It's good that they're using their body mics to record consent, but the department should insist that officers continue recording throughout their interactions.

Still, the dynamic is fascinating. Reported the News, "The shift in strategy caused strife among narcotics officers who think the best way to eliminate drug houses is to make undercover drug purchases." But that case is hard to make given the large number of arrests resulting from the tactic. This method seems to lead to plenty of arrests and has the added benefit of generating more confidential informants who may have information about more high-volume distributors.

Radley Balko has described how ubiquitous the use of SWAT teams has become during the routine execution of search warrants in the war on drugs, but Dallas cops are finding that, if they show up and ask nicely, plenty of suspects will invite them in the front door. Given that reality, couldn't the use of SWAT teams to execute routine search warrants be diminished? It seems like the risks have been dramatically overstated.

As death drugs dwindle, why not use firing squads for Texas executions?

Image via Sentencing Law and Policy

Prosecutors have been complaining that a requirement for DNA testing before executing someone will slow down executions, but a much more practical concern is likely to reduce their number in the near future: Texas is running out of one of the drugs it uses in executions, with the remaining supply expiring in September. Any change they make is likely to be litigated all the way to the US Supreme Court, delaying executions far longer than a requirement that they make sure they're executing the guilty party.

Grits tends to favor a solution to this dilemma posed recently by Robert Blecker on CNN.com: Reverting to the firing squad. This would remove the medicalized facade that lethal injection promotes, stripping away phony appeals to execute inmates "humanely" and simply portray capital punishment as it really is: A raw expression of state power.

Indeed, make me philosopher king and I'd require that the sitting Governor - the only person empowered to commute the sentence - perform the execution with a single, large-caliber shot to the forehead of a kneeling prisoner. Let the people's representative carry out the people's will. Forget any nonsense about putting blanks in the gun of one of the firing squad members. If we're going to have the death penalty, it should be performed in a way that lays bare the power dynamics behind it. At least then debates on the subject would be more honest and we wouldn't drag the medical community into the matter in violation of their Hippocratic Oath. Put the onus on the pols, not the doctors. Barring that approach, to me the firing squad would be the next best thing.

Regular readers know Grits remains more or less agnostic about the death penalty, for a variety of reasons. For starters, I don't consider it the "worst" punishment the state can dole out and therefore reject the idea that death is reserved for the "worst of the worst." Everybody dies; not everyone is locked up in a cage for the rest of their life. To me, the latter punishment is "worse." I understand that's not a widely held view, but it's mine.

Part of me rejects total abolitionism simply because of respect for the democratic impulse. The public overwhelmingly supports the death penalty and in certain high-profile cases, the public's demand for blood from a real-world political perspective must be honored. An eye for an eye may leave everyone blind, as the saying goes, but there are too many folks who hold that view for a political realist in a democracy to sweep them aside. Though more rare than death-penalty proponents tend to portray, there are true monsters in the world whom I don't care to waste time nor energy defending. And though I personally believe Texas has executed at least two and likely more innocent people, polling shows that the public doesn't change their views on the subject even if they believe such mistakes have been made. C'est la vie. Lamenting the facts doesn't change them.

Finally, I find many death-penalty abolitionists (like many in the pro-life movement) disingenuous. Very few people believe "all life is sacred" when it comes down to it, or else the same folks would be equally upset about America's various volitional wars, drone strikes, etc.. For that matter, far more people die in prison because of inadequate healthcare than Texas has ever executed, but almost no one seems to care about them. Timothy Cole, one recalls, died from an untreated asthma attack. In 2012, just 3% of deaths in custody at TDCJ were executions; more than twice as many people committed suicide.

Culture-war driven debates about capital punishment tend to revolve around phony, trumped up axes that I consider a waste of time and a diversion from other important matters. Too much attention is paid by the media and politicians to the 10-20 death sentences carried out each year in Texas and far too little to the 3.7% of the adult population whose liberty is constrained in more workaday cases.

Like it or not, Texas will soon change how it executes capital murderers and no amount of litigation over how we do it will prevent executions in the future. So why not take the opportunity to be more honest and straightforward about what we're doing in Texans' name?

Bad facts, tales of dead men, and NSA pick up lines

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

David Dewhurst makes the call
Note to public officials: If your relative is arrested, don't call the cops to ask that they be released. Get them a lawyer. That's how it's done.

'Stuck in jail'
So much for the right to a speedy trial. Reported the Houston Chronicle, "Dozens of suspects have remained behind bars in the Harris County jail for years without going to trial, according to a Houston Chronicle investigation. Legal experts and judges called the situation outrageous and said it may be a violation of the suspects’ constitutional rights." See a slideshow on some of the cases involved.

Bad facts make bad law: Exoneree compensation edition
Michael Blair was falsely convicted of capital murder but, while incarcerated for the murder he didn't commit, confessed to four child molestation cases that earned him four life sentences. He will almost certainly die in prison. A divided Texas Supreme Court ruled that he is not eligible for compensation for the false conviction. See the Texas Tribune's coverage. Reading the opinion, a concurrence, and the dissent, the old adage "bad facts make for bad law" comes to mind. Blair's unique situation is unlikely to be repeated. Meanwhile, some exonerees have had prior convictions and part of the reason they were convicted was that police had a "round up the usual suspects" mentality. I understand the justices not wanting to see Blair compensated, but the contortions undertaken by Justice Nathan Hecht to reach his desired outcome flew in the face of what the Legislature intended, which was that future, post-exoneration convictions would make people ineligible for compensation, not past crimes. The main decision was only fully joined by a plurality (four judges), so it's possible these issues could come back to the court with different and less prejudicial facts surrounding them the next time the Comptroller denies a compensation claim under Justice Hecht's standard.

Cop regained job after excessive force incident
A man won an excessive force lawsuit against the Carrollton PD after an officer slammed his head against a wall while in custody. The cop was fired but (unsurprisingly) regained his job through the civil service appellate process.

New law lets police sell confiscated guns
The Texas Tribune has the story.

Houston PD finally testing old rape kits
Houston PD has eliminated its rape kit testing backlog by sending all the old kits to an outside lab for independent testing. No word yet on how many cases may be solved, but each one will be its own mini-scandal.

Tales of dead men
Dead men tell no tales, but an historian is seeking people who can tell tales about them, searching for answers to mysteries regarding old inmate graves before those who might know about them are all gone.

NSA Pickup Lines
The offerings at Twitter hashtag #NSApickuplines are hysterical. E.g., "You look way prettier in person than in your webcam." Let's hope it's true that Twitter memes are an accurate predictor of political behavior. The Twitterverse doesn't appear to think much of NSA phone snooping.

State justice system constrains liberty of 3.4% 3.7% of Texas adults: How to reduce the government footprint

Yesterday Grits spent a couple of hours going through a recent, fact-laden report (pdf) from the Texas Criminal Justice Coalition, pulling out interesting tidbits and money quotes to highlight. Then I asked the missus for an edit and the text was accidentally deleted, leaving nothing but the above title. I'm not doing it again but if you'd like a high-level overview of Texas prison, probation and parole systems, TCJC has it for you.

One bit that I will re-create: According to TCJC, as of Aug. 31, 2012 Texas had 152,303 prisoners locked up, and another 493,340 people were supervised on probation or parole. Combining those figures and dividing by Texas' estimated adult population in 2012 (source), we discover that 3.4% of Texas adults had their liberty constrained by state government in 2012 in some form or fashion via the justice system.

The report includes recommendations on how to reduce the government footprint through a variety of sentencing and probation reforms.

UPDATE (9/1): I suppose we should round out this number by adding in the 67,096 Texas county jail inmates. That gets you to 3.7% of the adult population in prison, jail, on probation or on parole.

Habeas history

Grits mentioned the other day the much-misunderstood fact that habeas corpus is a governmental power - not a right of individuals the way we think of the bill of rights - and that historically interventions by legislative bodies served to weaken the writ, not bolster it. Here's a recent column by Anthony Gregory of the Independence Institute who has recently published a book titled, "The Power of Habeas Corpus in America: From King's Prerogative to the War on Terror." This excerpt from his column elaborates on some of that history:

When members of Parliament fought the king over despotic detentions, they championed an idealized writ, but this was wishful thinking, even disingenuous. Soon after Parliament beheaded King Charles in 1649, it proved itself just as tyrannical as the monarch, and jailed the opposition. The celebrated Habeas Corpus Act of 1679 was more administrative than revolutionary and contained loopholes.

In colonial America, habeas corpus arose from the bottom up. The legal community was informal. The common law that developed on this side of the Atlantic had a more organic development than in England, where it arose in the royal court system. In myth, Queen Anne gifted habeas corpus to Virginia in 1719, but Virginians had long observed it by then. The colonists, like their counterparts in Parliament, began romanticizing the Magna Carta and the Common Law for their libertarian elements.

American habeas corpus was originally decentralized. The Constitution of 1787 ruined this arrangement, centralizing the suspension authority, and its celebrated Suspension Clause allowed the central state to override state habeas corpus. Thomas Jefferson objected, although as president he tried to suspend habeas in his struggle with Aaron Burr’s conspirators.

In antebellum America, however, state habeas corpus remained prominent. State courts used habeas corpus against the federal government, although this fact has tragically gone missing in most literature on federalism. States even used habeas to challenge military enlistments, and they also used habeas to enforce as well as undermine slavery. The great writ’s usage to seize blacks in northern states with personal liberty laws, and return them to bondage, is a most shameful and neglected episode in U.S. legal history.

Prior to the mid-nineteenth century, the federal government had very little habeas authority over the states. A major shift came in the 1833 Force Act, where, to stop nullification of the tariff, the feds claimed the power to shield tax collectors from state imprisonment. In practice, the true expansion of federal habeas over states accompanied the Fugitive Slave Law, to protect federally-approved slave catchers from state obstruction. In the 1859 case Ableman v. Booth, the Supreme Court, in a pro-slavery decision, ruled against the state power to question federal detentions.

During the War Between the States, both the Union and Confederacy seriously violated habeas corpus rights. Lincoln delegated to a military authority the unilateral power to suspend habeas without congressional approval. (Ed. note: See a Confederate-era Texas exception described in this Grits post.) In 1871, the Supreme Court finalized its revolutionary claim over the states in Tarble’s Case.

Libertarians should favor strong due process protections, but the nationalization of due process has had limits. Although the feds have expanded their scope over habeas, in less than 1 percent of the cases do prisoners get relief. Most convicts don’t file because the review process takes longer than their sentence. Once championed as a way to guarantee a speedy trial, habeas is now a bureaucratic process that takes half a decade.

Those interested in these topic should  read the whole thing. Grits found the column interesting enough to request a review copy of Mr. Gregory's treatise, which the publishers graciously sent me, so more on this topic subject when I've finished the book.

Police tech: Body cams, Google Glass, and cop cars of the future

A decade ago Texas passed significant incentives as part of its 2003 racial profiling statute to put dashcams in police cars, with voters approving $18 million to pay for departments to install them. At the time the police unions complained of "Big Brother" and chiefs said they couldn't afford the expense. Since then, dashcams have proven invaluable both in prosecuting crime and protecting officers from false accusations, as well as occasionally catching police misconduct on video (at least when they don't conveniently "malfunction," which is a recurring theme when misconduct allegations arise). Very few Texas LEOs complain about them anymore, the benefits so far outweigh the detriments.

Now a new generation of cameras - so-called "body cams" - are stirring up a nearly identical debate. Cops in New York City are balking at their use. But Fort Worth, Austin, and other cities are both joining the trend of agencies experimenting with body cams, and where they're in use police officials sing their praises. Here's a news report out of California where the Rialto PD has decided to use body cams for all their officers:


In particular they find them useful for writing reports and ensuring that law enforcement testimony is as credible and backed up as possible. The cameras aren't a cure-all but they'd solve a lot of problems and prevent many he-said she-said disputes.

A related technological development are law enforcement applications being designed for Google Glass, where officers would get information related to vehicles, suspects, video feeds, etc., though the Google Glass technology in real time. According to Tech Crunch (Aug. 19):

Mutualink is demoing one such app today at APCO, a conference for public safety communications, with its Glass App for police, firefighters and first responders.

The app would allow public safety officers and officials to communicate in real-time via streaming video from the scene, as well as to receive and view key documents, including things like building schematics, medical records of victims, live feeds of security cameras in the area and more. It’s the ultimate on-demand intel platform for agents working in the field, and a way to stay in contact with HQ and other organizations even when radio systems won’t talk to each other.

Of course, there could be privacy concerns with such an app. Recently, news came out that NYC Mayor Michael Bloomberg and other officials in the U.S. oppose the idea of police body cameras, suggesting they’d be open to all kinds of dangerous interpretation. Mutualink says its solution emphasizes agency control of media and recording on glass, so privacy would be in the hands of the cops and other officials using them and should be protected.

A tactical heads-up display being used by safety officers is a natural fit for Glass, and as the enforcement agents would be using the head-mounted computer as part of their uniform, they wouldn’t have to worry about looking like idiots, so this could be a place where Google actually finds some long-term adoption. Mutualink is also already a service provider used by NATO Special Operations Forces, homeland security, police and fire departments, so it has the relationships in place to make this happen.

It’s not Robocop, but it’s a step closer.

Robocop, indeed! This application brings to mind fantasy and science fiction scenarios that not long ago seemed too fantastic to believe. Readers with children might recall J.K. Rowling's "Omnioculars" in the Harry Potter series where sports fans (in that case, Quidditch) could see instant replays, slow down action and retrieve detailed information about the game, players, strategies, etc., by looking through magical lenses.  Or, consider the contemporary TV show, Continuum, on the SciFi channel, where the main character is a cop from the future who wears a special suit linked to a chip in her head that presents real-time data linkages, facial recognition analyses, and even monitors vital signs of people in view of the agent. Suddenly, those sorts of uses seem less fanciful than just a short time ago.

While we're on the subject of police tech, the Los Angeles Auto Show asked car manufacturers to come up with examples of what police vehicles would/should look like in 2025. See a slideshow with examples.

The Google Glass app, police body cams, and probably even the vehicles could and likely would  eventually be merged, giving police more information on the world around them but also gathering video and audio of what the cop sees, hears, says and does - these technologies inevitably cut both ways.

Habeas reform at the Texas Legislature: The backstory

At the Texas Bar Journal, Harris County criminal defense attorney Brian Wice has a short essay (pdf) describing his involvement in the passage of SB 344 by Sen. John Whitmire expanding access to habeas corpus writs for prisoners convicted based on junk science. In a nutshell, the bill says prisoners may be granted relief if new science contradicts expert testimony presented by the prosecution at trial to such an extent that, by a preponderance of the evidence (i.e,. a greater than 50% probability), the defendant would not have been convicted without the erroneous testimony.

'Mr. Wice Goes to Austin'
In the article, Mr. Wice informed us that his "degree of enthusiasm for participating in the legislative process on any level was akin to watching a Here Comes Honey Boo Boo marathon on TLC." But IMO he was overly self deprecating in the piece about minor hiccups during his testimony, which I thought was quite effective- especially because Wice tag teamed at the committee hearing with former Montgomery County District Attorney Michael McDougal, who'd been on the other side of a murder case involving a defendant named Neal Robbins where false, expert testimony helped secure a conviction. It was quite powerful to have both the prosecutor and defense attorney in the case saying the Court of Criminal Appeals majority had denied Mr. Robbins justice. Wice said his reticence about the legislative process:

changed with a late-spring phone call from Amarillo criminal lawyer Jeff Blackburn, founder and chief counsel of the Innocence Project of Texas. Blackburn, Gary Udashen, a top-notch Dallas criminal lawyer, and Scott Henson, an Austin lobbyist and author of the critically acclaimed blog “Grits for Breakfast,” had drafted Senate Bill 344, which would ensure access to the courts for defendants convicted on junk science, including those whose initial post-conviction writs had been rejected. S.B. 344, part of the 83rd Legislature’s laudable attempt at reducing the specter of wrongful convictions — highlighted by S.B. 1611, otherwise known as the Michael Morton Act, which required prosecutors to open all of their files to the defense during pre-trial discovery—provided that a defendant could obtain relief by a showing of a preponderance of the evidence that scientific evidence essential to his conviction had been “contradicted” by relevant scientific evidence that was unavailable at his trial. Almost identical versions of S.B. 344 made it out of committee the past two legislative sessions but died in the final days of those chaotic conclaves. Blackburn wanted to know if I would drive in from Houston for the day and testify in support of the bill.

Blackburn’s call was no coincidence. He knew that I had suffered a bitter defeat two years earlier when the Court of Criminal Appeals, by a vote of 5-4, had denied a new trial for Neal Robbins, who was serving a life sentence for the 1998 capital murder of a young child in Montgomery County. The bare majority rejected the recommendation of the trial judge, veteran jurist K. Michael Mayes, that a new trial was warranted because the state’s key witness, Dr. Patricia Moore, the assistant medical examiner who performed the autopsy, had re-evaluated her trial testimony and concluded, based on the additional five years of training and experience she had acquired, that the cause and manner of death should have been ruled “undetermined” and not “homicide.” Notably, Moore’s expert opinions had been jettisoned by her superiors in Robbins and a number of other cases involving the deaths of young children. What made the Robbins decision even more caustic was that 18 months later, an almost identical CCA majority granted a new trial to Cathy Henderson, sentenced to death for the 1994 capital murder of an infant in Travis County, because the state’s medical expert re-evaluated his opinion as to the cause and manner of death based on a change in the underlying science.

Given that the factual distinction between Robbins and Henderson was one without a meaningful difference — especially to the jurors who convicted Robbins on expert testimony that the expert herself had disavowed — reasonable minds can differ as to whether the Robbins’ majority was wrong. I believe, with all due respect, they were a little weak on being right. My job was to convince the committee that S.B. 344 crafted a workable standard that would bring order to the stark disconnect between Robbins and Henderson.

Ultimately Wice, McDougal, et. al. convinced the committee and the Lege approved SB 344, which goes into effect on September 1st. I should also mention my appreciation that Justin Wood, the lobbyist for the Harris County DA's office this year, worked amicably to nail down the bill language. After that office stonewalled us the prior two sessions, erecting every obstacle they could to keep this bill from passing, Justin's forthrightness and accessibility came as a welcome change of pace.

Habeas corpus vs. legislatures
Helping pass SB 344 on behalf of the Innocence Project of Texas ranked among my proudest moments as an advocate. As a result of this effort, which for me began back in 2008, over the past several years your correspondent has spent more time studying and thinking about habeas corpus writs than I could ever have imagined (or desired). In particular, I've learned that most of the idealized public impressions - and even the impressions of attorneys, for that matter, since scarce few of them will ever file a habeas writ - don't really comport with how the process functions on the ground.

There are several axes around which these misconceptions occur. For example, nearly all analyses of habeas center around the federal writ (Guantanamo Bay, etc.), but most prisoners (around 93%) are incarcerated in state systems and the examination of state-level habeas processes like those in Ex Parte Robbins are mostly ignored in policy debates. Also, this is another area where myopic focus on writs in death penalty cases (which by law must receive federal habeas review, even in state-level cases) has distorted discussions as awkwardly as a reflection in a fun-house mirror. Neal Robbins was not on death row so there was no culture-war circus surrounding the case, which is perhaps one of the reasons the Lege could effectively confront the underlying issues.

In his outstanding history, Habeas Corpus: From England to Empire, Paul Halliday dispelled the myth that habeas corpus is a "right" of individuals the way the First Amendment protects free speech rights or the Fourth Amendment (in theory) protects one's right against unreasonable searches and seizures. He argued definitively that habeas is and always has been a prerogative of the state - in its origin, in fact, the prerogative of kings. Habeas issues don't fall out along partisan lines. Instead, they arise from power struggles between the executive and judicial branches. Lamentably, the former tends to prevail whenever such controversies reach legislative bodies.

In its heyday, Halliday showed, habeas was used far more sweepingly and in a much greater variety of cases than the modern legal system would ever contemplate, in contexts both laudable and lamentable, from freeing abused women being held against their will by their husbands to justifying or thwarting detention of political prisoners to cases involving escaped slaves (in Britain, sometimes, to free them; in the US, usually to return them to their masters).

Halliday's book, though, demonstrated how the historical arc of legislative action regarding habeas has focused on limiting its use. When legislative bodies, state or federal, engage in habeas "reform," the change nearly always limits the writ's use rather than expand it. That's why SB 344 stands out as a singular accomplishment, flying in the face of legislative trends going back not just decades but centuries.

I'm thankful Mssrs. Wice and McDougal came to Austin and hope Brian sharing the experience encourages attorneys, and the Texas Legislature, to continue to bolster the flagging "Great Writ."

Austin police calls for service flat, handled less effectively by ever-more officers

While I was out of town there was a nice story at KUT-Austin on Councilmember Bill Spelman's argument that the City of Austin doesn't need to fund more police officers or detectives in its next budget. Here are the charts Spelman presented to support his arguments. The article closed thusly:

Council member Spelman came prepared for this conversation – as he had prepared several charts outlining calls, responses and crime in Austin since 1999.

•  The first chart Spelman showed displayed a remarkably consistent number of dispatch calls from 1999 to 2013 – despite the total Austin population growing significantly since 1999.
• Subsequent slides went on to display an increase in the number of patrol officers, and a slight increase in non-violent crime – while noting the number of investigators doubled over that time.
• The primary question raised by the data – the title of a slide overlaying all the data – was  “Why do we need more detectives?”

While Spelman qualified his remarks by stating that there are many factors that statistics can’t encapsulate, he argued Austin has not gotten consistently better results over this time period. “I feel I need also to point out that we actually cleared more crimes in 1999 than in 2013,” he said, “despite the fact that the number of, at least general assignment, detectives more than doubled.”

Acevedo alluded to the need for more security against terrorism as a reason why it is not possible to compare police budgets prior to 9/11 to today’s requirements.

“I think as our footprint increases, in terms of our visibility on an international level, it makes me a lot more nervous as a police chief,” Acevedo said.

The Austin City Council takes up budgetary matters again Aug. 22, as a part of its regular council meeting.

Spelman could have added that nearly 12% of Austin PD service calls are for burglar alarms that almost never result in arrests (most are false alarms and in the tiny handful of real ones, the culprits have virtually always left the scene before police arrive). If Chief Acevedo wants more manpower for homeland security duty, he's got plenty of officers; they're just performing too many useless tasks that don't contribute significantly to public safety.

Dallas PD Family Violence Unit shelved hundreds of cases without investigation

One lazy or apathetic cop can cause a lot of woe; an entire unit of them can wreak havoc. In Dallas, reported the Morning News (Aug. 19), an investigation into the Family Violence Unit discovered:

hundreds of unworked offenses, mostly from the latter part of the last decade through 2011, ranged from dozens of simple misdemeanor assaults to stalking cases and felony child abuse or sexual assault cases.

The unworked cases represent additional evidence of widespread problems with the Police Department’s family violence unit. Since an embarrassing incident in late 2009 where thousands of cases were discovered in another detective’s garage, the department has improved supervision of investigators, implemented an automated case-tracking system last year and increased the number of detectives.

Paige Flink, executive director of The Family Place Shelter, said she’s confident that police now have the right leadership and reforms in place to prevent something similar from occurring again. But the discovery that hundreds more pleas for help from victims went unheeded because of the two detectives is disheartening, she said.

“I’m almost speechless that people who thought the police were going to help them didn’t get help,” Flink said.

After more than a year, internal affairs investigations into [Shawn] Wash and [Durman] Johnson were recently completed. It is unclear what discipline, if any, they will receive. Wash is assigned to the property room and did not return a request for comment. Johnson declined to comment. He is answering phones in the crimes against persons division.

Many of Wash and Johnson’s mishandled cases are from the same era in which Detective Mickey East failed to properly pursue thousands of cases. East retired in February 2012 after a 2½-year investigation. He said he took the cases home when he was overwhelmed by the workload.

Police officials say Wash and Johnson exhibited many of the same tendencies as East, such as repeatedly failing to properly document what they did and did not do on their cases.

“There’s not a whole lot that they can do that we can’t catch them on now,” said Deputy Chief Sherryl Scott. “It’s all about making sure that our domestic violence victims are getting the service that they need from our detectives.”

What a gross failure of supervision! That one cop could defraud the unit's supervisors might be viewed as an isolated incident. That three did so (at least) means the unit essentially was unsupervised and if any investigations were performed, it was only due to the diligence of the individual detective assigned the case. The supervisor clearly wasn't keeping tabs and the culture of the unit apparently encouraged such behavior.

Grits must also object to the practice of assigning bad cops to the evidence room, as was done with Officer Wash, instead of firing them.  Historically police department considered the property room essentially unimportant, a notion that the era of DNA exonerations and property-room thefts should have by now dispelled, especially in Dallas which leads the state in exonerations. That the department still uses the property room as punishment instead of staffing it with committed professionals indicates the agency has not learned all the lessons it should from Dallas-area innocence cases.

MORE: From the Dallas News (Aug. 20):

Dallas Police Chief David Brown fired five police officers Tuesday, including two former family violence detectives who failed to work hundreds of cases.

One of the fired officers, Bryan Burgess, was booked into Dallas County Jail on Tuesday night on a charge of criminally negligent homicide in connection with the death of a bicyclist who collided with his squad car in April.

Police officials said they are referring another criminal case against Burgess to a grand jury to consider whether he tampered with evidence at the scene of the accident.

40% increase in cattle rustling followed 2009 penalty enhancement

Grits readers are aware of my longstanding view that "enhancing" (read: increasing) criminal penalties for things that are already illegal rarely has any impact on the rate at which those crimes are committed. A fine example comes from StateImpact Texas, a project of public radio stations KUT-Austin and KUHF-Houston, which reported today that a 40% rise in cattle rustling supervened the Texas Legislature's 2009 enhancement of penalties for that crime.

Ranchers saw a sharp jump in cattle rustling last year in Texas and Oklahoma. Over 10,000 cows and horses were reported missing or stolen. That’s an almost 40 percent increase from the year before. It’s a trend that’s surprised some in law enforcement.

Doug Hutchison is a special ranger commissioned by the Texas Department of Public Safety to investigate cattle theft. He points out that -since the drought ravaged herds in 2011- there’s simply less and less Texas cattle to steal.

“I was really starting to think that maybe we’d start to see a downturn, because these ranchers are watching so close to what they have with the downsizing of the herd, it’s a little easier to track,” said Hutchison.

He might have had another reason to expect a decline in thefts: Penalties against rustlers were toughened by Texas lawmakers in 2009. Now, the crime could put you in prison for up to 10 years. But ironically more and more cattle have gone missing or stolen since that law was passed.

Richard Hartley Chairs the Criminal Justice Department at UT San Antonio. He says it goes to show that tougher sentencing doesn’t generally serve as a deterrent. After all, cattle rustlers plied their trade even when the penalty was death.

“If you read a lot of the research or even just the historical writings on that era. When there was hangings in the town square crime would actually go up,” Hartly said. “Because when you had a lot of people congregated in an area where pickpockets would know that we steal stuff from them.”

Grits has never understood: Since empirically enhancing criminal penalties (I despise that euphemism) has little effect - indeed, often the opposite - what exactly is the point?

So much for second chances: Pardons plummet under Obama

Almost nobody seems to care that presidential pardons and commutations under Barack Obama have fallen to appallingly low rates, making him perhaps the least merciful president in American history. A recent op ed in the Washington Post concluded:

Alexander Hamilton wrote in the Federalist Papers: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Hamilton knew giving that power to one person could tempt him to be too forgiving, or too cruel, and end up making him too cautious for fear of criticism, but he argued that “humanity and good policy” would prevail and show “that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”

So far, Obama has done little to justify Hamilton’s optimism. He has granted just 39 pardons and only one commutation, while denying more than 6,700 petitions. In his first term, Ronald Reagan signed more than 10 times as many pardons and commutations as Obama did (250 vs. 23); George H.W. Bush more than three times as many (77); and Bill Clinton more than twice as many (56). The “easy access” that Hamilton envisioned has nearly disappeared.

In January 2010, Obama said that “one of the great things about America is that we give people second chances.” He could do just that by ordering a special review of the thousands of clemency applications at the Justice Department and White House that are growing older by the day, and by commuting the sentences of offenders of all races that are too severe, like those for the five serving life terms without hope of parole for nonviolent offenses. The Founders gave the president the pardon power for good reason; Obama has not only the right, but also the duty, to use it.

Following up, Peter Ruckman at Pardon Power posted this excellent chart putting Obama's no-pardon policy in historical perspective. E.g., Richard Nixon granted a third of all pardon and commutation applications; Obama has granted one out of every 239.

Dallas probation department to audit drug and alcohol tests after positive UAs went unreported

The Dallas County probation department is under fire for failing to inform a district judge of failed drug and alcohol tests of its probationers, the Dallas News reported last week (Aug. 14). The story opened:

Dallas County judges have ordered an extensive review of felony cases after discovering that probation officers failed to report probationers violating repeated drug and alcohol tests. 

The audit is designed to tell the extent of the breakdown and whether potentially dangerous criminals have remained free instead of facing probation revocation.

“This is a failure of supervision in the field. It’s extremely dangerous for Dallas County,” said state District Judge Tracy Holmes.

Holmes’ concerns already have triggered an overhaul and staffing changes in the county probation department.

The decision to have an outside agency examine current probation files also signals courthouse efforts to move quickly to uncover cases that could pose a risk to the public.

The probation department chief acknowledged the errors.

“Regardless of the number, the quality of the supervision was indeed unacceptable,” said its director, Michael Noyes.

Holmes began questioning probation practices after finding 34 cases in which the department didn’t tell her probationers had been repeatedly drinking or using drugs in violation of their sentences.

She was most outraged to learn about the case of a drunken driver who, over 18 months, saw at least eight probation officers. He tested positive for alcohol more than 30 times, but she was never told.

Dallas probation director Michael Noyes fell on his sword and has begun the obligatory reshuffling of employees and duties that such incidents inevitably engender:

With 450 probation officers and supervisors in charge of 50,000 probationers, the caseload is high. But Noyes said that doesn’t excuse the “system failures.”

The probation department already has shuffled its staffing, including reprimands, a firing, more training and more personnel.

In general, high caseloads do seem to be the main culprit. Though the felony DWI probationer in question had eight probation officers over 18 months, "testimony showed that none appeared to have read his complete file before meeting with him." That's directly related to excessive caseloads, even if it's not politically correct at the moment for Noyes to say so.

With the department having admitted fault, DMN columnist Jacquielyn Floyd took the easy shot, opining, "If probationers realize they can ignore the rules without getting hauled back to court, then probation is no longer the closely monitored second chance it’s supposed to be – it’s a free pass. If that’s the case, then what’s it for?"

Though we'll learn more from the audit, from what's been reported IMO that's the wrong lesson from the episode. Grits responded to Floyd in the comments: "A big part of the problem is [that probation departments] give drug and alcohol tests to too many people and the volume swamps them. Felony DWI cases, sure. But requiring it for every single case overwhelms the system. Do less drug testing and it's easier to focus on violations in cases where it's used. Do it for everybody and there simply aren't enough resources to effectively monitor or sanction every violator." That's especially true when the department is understaffed.

That's similar to what IMO was the main issue last year when the Harris County probation director was forced to resign over drug-test results falsely attributed to the wrong probationers, a fiasco that ended up getting some innocent people's probation revoked. There, the department's sweeping use of drug and alcohol testing on non-high risk probationers overwhelmed the under-resourced system. It won't surprise me if an audit shows the same dynamic underlying the mess in Dallas.

The News reported that Dallas County judges have discussed "creating a standard for all 17 felony courts about when probationers should be sent to court for violations." They would also do well to standardize and limit the type of probationers for whom they order drug and alcohol testing in the first place, and to identify probationers eligible for early release. Otherwise, the most likely solution will simply be "spend more money," a suggestion for which there is no obvious or ready revenue source.

Budget cuts at McLennan DA due to plea-bargain policies, not expert testimony costs

After enduring budget cuts for the second second year, the McLennan County DA Abel Reyna is dipping into his asset forfeiture fund to pay for expert testimony and outside lab testing, reported the Waco Tribune Herald ("DA sees rise in costs for testimony, evidence analysis," Aug. 17).

The district attorney’s original 2014 requested budget was more than $4 million. After the cuts, the proposed budget is 
$3.9 million.

But an increase in costs for evidence testing and professional testimony could drain those accounts and Reyna said using forfeiture money is only a temporary solution to pay for his office.

The Texas Department of Public Safety’s Waco crime lab does all forensic evidence testing for free for the district attorney’s office, but Reyna said the DPS 
also is feeling the strain of budget cuts and sometimes can’t return evidence in time for a trial. This forces Reyna to use a private company in Dallas to 
process evidence.

County auditor’s office spokeswoman Frances Bartlett said the district attorney’s office spent $1,000 on evidence analysis in 2011.

The district attorney’s office didn’t spend any money on evidence analysis in 2012, but already has spent about $8,000 on testing in the 2013 fiscal year.

That amount is expected to increase.

“The law is pretty clear on what you’re supposed to do. The bottom line is, it’s a protection against 20 years later having to get it tested,” Sims said.

County records also show professional testimony expenses have more than tripled since 2011.

The district attorney’s office spent $13,000 for professional testimony in 2011, and $24,000 in 2012. Costs jumped again in 2013 when the district attorney’s office spent almost $42,000 for expert opinions.

Reyna said the jump in these costs is almost entirely from caseload growth.

Because of the rise in trial cases — 46 in 2010 and 70 in 2012 — the need for expert testimonies has increased, he explained.

As Grits pointed out in the comments, while DPS crime labs do face strains from expanding caseloads, it's simply false that the agency's crime-lab budget was cut. In recent years it has dramatically expanded. The real cause of the increased costs for expert testimony and lab work, which seem like small potatoes compared to the department's overall budget, is that final stat on the increase in cases going to trial. Reyna's ill-considered plea-bargain policies boosted costs at the county jail which put the squeeze on the commissioners court to reduce his budget. The McLennan DA has been hoisted by his own petard.