McLennan Sheriff ignores data, research on ill-conceived DARE program

In McLennan County, where District Attorney Abel Reyna's hard-nosed approach to plea bargaining has resulted in a dramatic uptick in the number of cases taken to trial, the Sheriff and county commissioners are struggling with how to provide sufficient courthouse security for all the extra court proceedings. The Waco Tribune-Herald reports ("Commissioners struggle to fund courthouse security for uptick in trials," Nov. 29) that the commissioners court is considering eliminating the DARE program and reassigning the deputies to courthouse security. Grits thinks eliminating DARE is a good idea no matter what the deputies do instead. As the paper noted at the article's conclusion:

national statistics do not support the idea that the DARE program is successful.

The Alcohol Abuse Prevention website states that the U.S. Department of Education doesn’t allow school money to be used toward DARE because it has proved to be ineffective in convincing children not to choose drugs.

“Scientific evaluation studies consistently have shown that DARE is ineffective in reducing the use of alcohol and drugs and is sometimes even counterproductive — worse than doing nothing,” the website states.

Sheriff Parnell McNamara said he is sensitive to the security and budget issues the court faces, but added he disagrees with national data and is against the elimination of the drug awareness classes.

McNamara said his task forces are working hard to eliminate drug activity in the county and that he fully supports anything that would give the department an advantage.

McNamara said 90 percent of the people he arrests are associated with illegal drugs in some way. He said the standard excuse for any criminal activity is being mentally unsound on an illegal substance.

“As serious as the drug situation is in McLennan County, I wish the court would look long and hard before doing away with the DARE program,” he said.

Leave it to McLennan County law enforcement to insist on a program that data shows is not just "ineffective" but "counterproductive." DARE is not a law enforcement initiative, it's a propaganda campaign. And prioritizing it at the expense of courthouse security is just dumb as dirt.

The upsides of recording custodial police interrogations

Regular readers know that requiring police to record custodial interrogations, especially in the most serious cases, is the final recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions that the Texas Legislature has yet to implement. The Crime Report this week published a good overview of the hows and whys of the issue, noting that the International Association of Police Chiefs has embraced the idea:

The International Association of Chiefs of Police has made wrongful convictions a priority. A recent article from Police Chief Magazine reported that the best practices to avoid false confession include recording the entirety of interrogations, and keeping secret some crime details to ensure innocent suspects do not just parrot back inside information gleaned from their interrogators.

Richard Leo, an academic who has been doing empirical research on police interrogation practices for 20 years and is a frequent expert witness in cases involving false confessions, said he is seeing a growing movement nationally to record confessions.

Leo said the movement has developed because of greater understanding of what causes false confessions. He listed, for example: 

• lying to suspects about the evidence against them;
• the length of interrogations;
• the propensity of people to comply with authority;
• mental illness or low intelligence;
• and implications from police interrogators that if a suspect makes an admission, he is “not admitting to a crime or admitting to something that has very serious consequences.”

Not only does recording interrogations help prevent false convictions (or at least identify them after the fact), it also provides better evidence for prosecutors and juries, prevents he-said she-said disputes about what went on in interrogation rooms, serves as a buffer against police misconduct, and prevents false accusations against police interrogators. “I think that police officers and prosecutors, properly trained, could do this and do it well,” said a prosecutor quoted in the story. “It would just enhance the cases and take away a lot of the arguments about coercion and force and things of that nature.”

One hopes the Texas Legislature will prioritize this issue when it re-convenes for its 84th session in 2015.

See related Grits posts:

• Shaky science, un-recorded confession lie form basis of El Paso habeas writ
• El Paso case highlights need for recording interrogations
• Canales: Record custodial interrogations
• Record interrogations, reduce false confessions
• Police arguments against recording interrogations allow fear to impede self interest
• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

Fran Keller released based on refuted junk science

Jordan Smith at the Austin Chronicle reports on another case where Texas' new junk-science writ has been used to free a defendant - this time Fran Keller, accused of abusing kids via satanic rituals at an Austin daycare - who was convicted based on false forensic science testimony. Reported Smith:

That [emergency room Dr. Michael] Mouw provided false medical testimony for the state at the 1992 trial was among the claims included in an exhaustive appeal filed on Fran Keller's behalf in January by Austin defense attorney Keith Hampton. A hearing on the issue was held in district court in August, leading Travis County District Attorney Rosemary Lehmberg earlier this month to agree with Hampton that Keller received an unfair trial, Hampton said. (An appeal raising the same claims was filed last week for Dan, and the agreed findings related to Mouw's testimony are also applicable to Dan.) The agreed findings have not yet been officially filed, Hampton said, because he was waiting for Lehmberg to sign a second copy that will be filed under Dan's name. In short, the state has agreed that the medical testimony presented at the Kellers' trial was false, was material, and likely affected the outcome of the Kellers' trial. As such, its inclusion violated their right to due process. In a press release late Tuesday afternoon, Lehmberg said that she agreed to the relief because of the "crucial nature" of Mouw's testimony, and the "reasonable likelihood that his false testimony affected the judgment of the jury and violated Frances Keller's right to a fair trial."

The fact that Lehmberg and Hampton have agreed to that finding, and to the fact that the Kellers conviction should be overturned, triggers a provision of state law that allows a district judge to grant a personal bond to release them from prison while the appeal continues to move through the process. The agreed findings will be forwarded to the Court of Criminal Appeals for final approval; once that happens, the case will be kicked back to Lehmberg to decide whether to retry the case.

As in the case of the San Antonio Four, prosecutors won't agree to Keller's actual innocence claim but have agreed to a new trial which, assuming the Court of Criminal Appeals signs off on her writ, will almost certainly never occur. (It's a rare prosecutor indeed who's willing to admit mistakes in such cases.) The main witness in the case, who was three at the time she was allegedly abused and four when the Kellers were convicted, was not a very credible witness and it was the forensic testimony that secured the conviction. At first, she accused the Kellers only of spanking her. But then, reported Smith:

With a bit of pressing, first by her mother and then by therapist Donna David Campbell, [those] initial allegation soon morphed, first into an allegation of sexual abuse and then, by the fall, into far more fantastic allegations – including that the Kellers took [her] and other children on plane rides to Mexico where they were abused by various individuals, that Fran cut off the arm of a gorilla at Zilker Park, that the Kellers performed a satanic bone-replacing ritual on one child, and that the Kellers forced the children to watch them sacrifice babies and small animals. Ultimately, Campbell concluded that [she]  was a victim of "ritual abuse."

No way Rosemary Lehmberg will take the case back to court based solely on that sort of garbage testimony. Noted Smith, "The Kellers were among hundreds of child-care workers across the nation who, in the Eighties and Nineties, were accused of being part of a network of satan worshippers who abused children taken to daycare."

Keller's husband, "Dan, who will turn 72 in prison on Friday, is slated to be returned to Travis County and finally released in early December," Smith reported.

MORE: From the Austin Statesman. AND MORE: From Texas Monthly's Michael Hall who credited Jordan Smith for reporting that "led directly to yesterday's release." He also added this observation:

Another similarity between the San Antonio [Four] and Austin cases is that both are being driven by changing science—the medical science of the hymen. The only physical evidence in the San Antonio Four case was testimony from a pediatrician named Nancy Kellogg, who said that a 2-3mm white “scar” (about the width of a quarter) on the hymen of one of the young girls making sex-abuse allegations against the four defendants could have been evidence of sexual assault. Now we know better. What about the dozens of other inmates in Texas convicted of child-sex abuse and sent away because of testimony that scars or lacerations on hymens were evidence of abuse? It’s safe to say we should expect to see more writs soon based on changing science. 

'I've been to Athens' ... and Paris ... and Muleshoe

Before this blog takes some time off for the holiday, let's round up a few items that merit Grits readers' attention:

'12,000 days later, Texas still won't release Jerry Hartfield from custody'
This is just pathetic. Conviction overturned, a new trial ordered, then 33 years in prison without any additional movement on his case.

Audits coming for county court costs
The Office of Court Administration will begin auditing counties' court collection reporting for data integrity as a result of recommendations from the state auditor. See here for more recommendations and the full report.

Good news: Gubernatorial candidate calls for red-light camera ban
The bad news: It wasn't Greg Abbott.

Scheck: 'I've been to Athens'

Barry Scheck of the national Innocence Project praised the Texas Legislature at a recent event in Houston for its willingness to pass innocence reforms, the Houston Press reported. While this comment bordered on hyperbole - "I went back to New York and told them, 'You won't believe this! I have been to Athens. They have a real democracy in Texas. You can actually get things done'"- it's true that, to my knowledge, Texas has passed more innocence-related legislation than any other state. Of course, we started with one of the most slanted, unfair systems in the country so we had (and have) a long way to go to catch up. (Ask Jerry Hartfield.)

Brennan Center Byrne grant recommendations behind the curve
The Brennan Center issued a new report suggesting improved performance measures for the federal Byrne grant program and establishing program goals aimed at reining in drug task forces whose focus on low-level drug busts contribute to over-incarceration. See the press release and the full report. Strangely, the report doesn't mention Texas' experience. In 2005, legislation by state Sen. Juan "Chuy" Hinojosa put drug task forces under DPS management and the agency implemented performance measures of just the sort the report advocates. When the task forces couldn't (or really, wouldn't) meet them, Gov. Rick Perry pulled the plug on their funding, shifting resources to specialty courts, diversion programs and border security. Back when I worked for ACLU of Texas, your correspondent authored a pair of public policy reports in 2002 and 2004 (see here and here) advocating for the establishment of better performance measures and the abolition of Texas' drug task forces, though none of that work was acknowledged in the Brennan Center report, which all in all struck me as about a decade behind the curve compared to debates over these issues in Texas.

Hope for probation reform
Check out this PBS News presentation on a strong probation initiative out of Hawaii called the "Hope program" which embodies most of the reforms Grits would like to see in Texas' probation system: Closer supervision of probationers for shorter time periods, with swift and certain consequences for probation violators short of actually revoking them to prison. As a criminologist in the story described the program, "What they have done with the HOPE model has been to ratchet down the level of penalty so that it's something you can actually afford to do and then ratchet up the likelihood that if you engage in misconduct, you will actually experience that penalty."

Why private prisons don't (and shouldn't) have immunity from civil rights litigation

Attorney Jennifer Hulvat has an article at Corrections One ("Unprotectcted: Private prison personnel and civil liability," Nov. 25) explaining why private prison companies and staff do not enjoy the same qualified immunity from civil rights lawsuits as publicly owned and operated prison units.

Historically, Title 42 U.S.C. §1983 has provided a procedural mechanism for state and local prison inmates claiming violations of their civil rights to sue those acting “under color of law”. Qualified immunity, however, bars §1983 suits against certain state, local and federal officials unless the actor reasonably believes that his conduct violates a clearly established constitutional right. Certainly, claims suggesting deprivation of rights rooted in the Fourth Amendment, the Eighth Amendment and the 14th Amendment are ripe in the prison context. ...

We need only look as far as the most recent Supreme Court opinion on the matter to quickly conclude that prison guards in private prisons are, for all practical purposes, exposed and vulnerable to liability for civil rights violations. The 1997 Supreme Court case of Richardson v. McKnight established that prison guards working for a private prison company that contracted with the state could not assert the defense of qualified immunity against civil rights allegations. There, two inmates in a privatized Tennessee prison alleged that prison guards subjected them to severe physical restraints, thereby depriving them a constitutionally protected right. The Court believed that “history does not reveal a ‘firmly rooted’ tradition of immunity applicable to privately employed prison guards”. Most notably, the Court found no reason to extend this critical protection to private contracted prison guards. The key factor in the Courts decision was that the person being accused of the constitutional deprivation was not hired directly by the government, rather “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for the profit and potentially in competition with other firms”.

Hulvat clearly believes qualified immunity should extend to government contractors including private prisons and their employees, but that's a slippery slope she's suggesting the courts head down. The Geo Group is to TDCJ as the mercenary firm Blackwater was to the US Marines. There are good reasons why Blackwater retained liability when performing its functions and you couldn't set the precedent for one sort of entity without extending it to others. The government contracts for all sorts of services with the private sector: Should rental car firms enjoy qualified immunity because the government sometimes rents cars from them? Where would it end?

In any event, Ms. Hurvat's complaint won't be satisfied anytime soon. She noted that a Supreme Court case in 2012 finding qualified immunity for an attorney hired to perform a police Internal Affairs investigation "was very careful not to overrule Richardson, finding that the employment relationship of a privately retained 'one' is quite different than the position and relationship of 'many' working for the entity hired by the government. For the time being, then, private prison guards facing civil rights allegations remain exposed and susceptible to liability."

Strip away that liability and abuses would surely rack up. Already, private facilities tend to be less accountable and more prone to abuse than publicly operated ones (though both have their problems). In part that's due to underpaid, under-trained staff, high turnover, fewer services and a tendency to cut corners to maximize their bottom line. How much worse would those problems be if private facilities weren't accountable in court for abuses? In that vein, via Texas Prison Bidness, this morning I noticed this new report (pdf) from the Detention Watch Network about alleged civil rights violations at private immigration detention facilities, including in Polk County, TX. 

 Government agencies are accountable to legislatures or other elected entities who can and do intervene - as happened at the Texas Youth Commission, for example - when serious problems arise. But private companies are only accountable to their board and shareholders. In Grits' view, SCOTUS was wise not to extend them immunity.

Brownsville can't keep 911 dispatchers on board

Brownsville PD is having trouble finding dispatchers who'll stay past their training period, reported a local TV station:

"We have a difficult time finding people who can fill those slots and can make a commitment to stay with it," Brownsville Police Chief Orlando Rodriguez said.

Starting next year, all dispatchers will have to be licensed by the Texas Commission on Law Enforcement Officer Standards and Education. They must first go through a 20-hour observation period to see if they want to apply for the job. Officials said about 80 percent decide it's not the job for them after that part of the process.

Before they are hired, they must pass a background check and go through a psychological examination. They must attend 64 hours of training. Usually, they work for six to eight months before they start working as a dispatcher alone without a trainer.

One recalls the Legislature raided "dedicated" 911 fees the last couple of sessions to help balance the budget. I don't know whether or not that has anything to do with the shortage in Brownsville.

Good idea in Dallas on domestic violence prevention, but few resources to implement it

Here's an interesting, proactive approach to family violence being pursued in Dallas, following the lead of a successful, similar program in New York City: Home visits following up on high-risk domestic violence episodes. Reported the Dallas News ("Dallas police consider home visits to prevent domestic violence deaths," Nov. 23):

Right now, many domestic abuse victims don’t hear from police beyond the initial response to a 911 call. Victims of felony offenses receive a follow-up with an investigating detective, but even then, police involvement ends once the case is handed over to the district attorney’s office.

[Maj. Robert] Sherwin said he wants home visits to fill the gap during the eight to 10 months it can take for the case to reach a result in court.

The plan is already working well in New York City, where police respond to about 250,000 family violence incidents a year. Dallas police respond to about 13,000 domestic abuse incidents annually.

To deal with its large caseload, NYPD assigns about 450 officers to conduct home visits with the most vulnerable victims: children, elderly and people police suspect will be abused again. They go on a “high propensity” list and must be visited at least once a month, said Chief Kathleen O’Reilly, who oversees the domestic violence unit.

On their visit to New York, the Dallas officers joined their NYPD colleagues on a visit to a Harlem public housing complex, where they navigated dark, narrow hallways and knocked on doors. The officers chatted with victims, looked for signs of further abuse and helped create a safety plan — putting Social Security numbers, credit card information and other necessities in one place in case the victim needs to leave in a hurry.

Though the program has existed for years, O’Reilly said, her unit re-emphasized the visits after the city saw a spike in domestic violence murders a few years ago. Now, family violence homicides have fallen and, O’Reilly added, “We don’t know how many lives we’ve saved just by showing up.”

Problem is, Dallas wants to implement the program without assigning extra resources.

the biggest challenge is deciding how to choose which victims to visit. Sherwin said police are considering using the lethality assessment program, criminal background checks on the abuser and knowledge of previous assaults on the victim.

The success of the program would likely hinge on such a filter system.

“That’s kind of the sticky wicket,” Sherwin said.

This is a good idea but it flies in the face of the current policing model where patrol officers rush from 911 call to 911 call without an overarching strategy. Thanks in part to more than 10% of police calls responding to false burglar alarms, there's little extra patrol power to assign to this sort of proactive approach. Make me philosopher king and I'd pull the plug on home-burglar alarm responses, implementing a verified response system and using the extra manpower for more of these sorts of targeted, risk-based policing tactics. But it's become clear that, certainly in Dallas, verified response is "good public policy" but "bad politics," as former Dallas police chief David Kunkle has said.

You can't get something for nothing in this world and that includes extra police resources, even if it's to implement a good idea. Policing, like every other government function, involves trade-offs. Not everything can get done in a world of limited resources. I'd rather see officers following up on high-risk domestic violence cases than chasing after thousands of false burglar alarms, but between the public's ignorance and the alarm industry's political clout, in the near term the trade-off will almost certainly continue to prioritize the latter over the former.

MORE: From Texas Monthly.

Lies and damn lies about sex trafficking data

Houston attorney Mark Bennett has an fine post up debunking a claim by the Dallas Morning News that, "In Hous­ton alone, about 300,000 sex traf­fick­ing cases are pros­e­cuted each year." The real number: Two, if you tally up state-level prosecutions; add in federal indictments and the number gets into the double digits. "So 300,000?," writes Bennett, "Utter and com­plete nonsense." Read the full post. MORE: The DMN has now updated its editorial to delete the false information; hope they also included a formal correction in the print version of the paper.

Harris DA 'simulator' primes grand juries to no-bill cops when they shoot unarmed civilians

The final installment of the Houston Chronicle's series on police shootings of civilians by James Pinkerton, titled "Bulletproof," (see parts one and two, and prior Grits coverage), revealed the use of an unusual "simulator" as part of grand jury trainings showing dramatic portrayals of justified police shootings. The DA employs a:

firearms training simulator as part of orientation that new grand jurors receive from the Harris County District Attorney’s Office. Grand jurors, whose duties include reviewing police shootings, play the role of police officer in the simulations by using a modified gun to shoot a beam at the screen.

The use of the shooting simulator, which was not widely known until a Houston Chronicle investigation, has prompted questions among defense attorneys and civil rights activists about whether it could prejudice grand juries. Harris County grand juries have cleared HPD officers in shootings 288 consecutive times. ...

The DA’s office, which began using the simulator in 2003, contends it helps grand jurors understand pressures of police work and the split-second decisions officers must make.

Only one other large Texas county - Bexar - shows grand jurors a similar presentation, according to the article. The use of the simulator to educate (indoctrinate?) grand jurors wasn't something even insiders in Harris County's criminal justice system were aware of, the paper reported:

Grand jurors empathizing with police officers is at the heart of questions raised about the shooting simulator.

Julian Ramirez, who is head of the DA’s civil rights unit, said the training simulator uses scenarios including school shootings, a domestic violence call, the scene of a sexual assault and traffic stops. Ramirez said the simulator gives grand jurors a better understanding of the “police officer’s experience when he goes on some of these calls.”

The DA’s office began inviting the news media and defense attorneys to use the simulator after the Chronicle began asking about the practice. The device’s use was not previously known by some local defense attorneys.

“Damn, I’ve never heard of that,” said Danny Easterling, who has spent 32 years as a defense attorney and is a past president of the Harris County Criminal Lawyers Association. “That does raise concerns … the neutrality of it could be questioned. It seems to be a bias towards the police.”

Harris County criminal district judges David Mendoza, Jan Krocker and Katherine Cabaniss said they also were not aware of the simulator’s use.

“I’m surprised. I’ve never heard of that occurring or that procedure,” said Mendoza, judge for the 178th court.

Though "Harris County District Attorney Devon Anderson said the simulations educate jurors about situations when self-defense claims are legitimate — not just for police officers but for all residents," it sounds like the only justified shootings shown in the simulations involve someone with a badge pulling the trigger.

Certainly the use of the simulator isn't the only reason Houston cops are unlikely to be indicted by grand juries. "University of Houston assistant professor of criminal justice Larry Karson conducted a 2004 study that found more than half of the 129 grand jury commissioners selected in Harris County in a two-year span had close ties to the legal system. They included judges, attorneys, court employees, bail bond agents, probation officers and law enforcement officers." So many grand jurors are people predisposed toward siding with police officers, anyway.

And, of course, grand juries can only base their decisions on the information given to them by the same District Attorney's Office that's showing them the simulator video. There's no one else representing the victim's interests in the room and because transcripts are secret, no one can ever know what the ADA said to them or what information may have been omitted in the presentation.

No doubt, in many cases a no-bill was justified. But even a conservative Republican judge questioned Harris County grand juries' lack of action on questionable Houston PD shootings. “The big void on indictments of police officers is certainly alarming, and I just hope each grand jury had decided those cases based on the facts independently of what the district attorney wants them to do,' said 209th District Judge Mike McSpadden.” Remarkably, "The newspaper’s investigation showed that more than a quarter of the 121 civilians Houston Police Department officers have shot in the last five years were unarmed."

Fort Worth chief apologizes for use of off-duty officers at NHTSA roadblock

The Fort Worth Police Chief issued an apology on Thursday for allowing off-duty police officers to participate in a federal survey in which they stopped drivers to request DNA swabs, breathalyzer tests and blood samples, the Dallas News reported. Though the survey was ostensibly voluntary, the use of uniformed officers meant drivers were under the impression they had no choice but to pull over. Here's the text of the chief's statement, which included contact info for the federal agency that initiated the effort:

TO OUR CITIZENS:

The National Highway Traffic Safety Administration hired off-duty Fort Worth Police officers to assist with the Roadside Survey by providing traffic safety and security of cash used to pay survey participants. This survey was intended to be voluntary and was conducted by NHTSA personnel.

We are reviewing the approval process for this survey’s utilization of FWPD off-duty officers not only to ensure that our policies and procedures were followed, but also to ensure that any off-duty job is in the absolute best interest of our citizens.

We realize this survey caused many of our citizens frustration and we apologize for our participation.

“I agree with our citizens concerns and I apologize for our participation. Any future Federal survey of this nature, which jeopardizes the public’s trust, will not be approved for the use of Fort Worth police.”

Chief Jeffrey Halstead

*** Please express your concern with this survey to the media relations office with the USDOT NHTSA - Kathryn Henry 202-366-6918; kathryn.henry@dot.gov

Readers concerned about this tactic should contact the NHTSA to tell them to re-think their methods. 

RELATED: Fort Worth cops used roadblock to gather cheek swabs, blood draws for federal research project.

Citizen complaints rising vs. Austin PD

According to the Austin Police Monitor's latest six-month update (pdf):

In the first half of 2013, 674 people contacted the OPM with the intent of filing a complaint. As of this writing, it looks like calendar year 2013 will see more complaints than were received in 2012. If so, this will be the first time in three years, the OPM has seen an increase in the number of complaints.

In the first half of 2013, the very first mediation session between members of the APD and a member of the public occurred at the Dispute Resolution Center. 

See also their most recent 2012 annual report (pdf), which is much more detailed.

As a practical matter, there are very few complaints filed against Austin PD officers by citizens because the system is utterly opaque and perceived to be rigged, with few officers ever disciplined and virtually no information coming back to complainants about how or why their accusations are (almost inevitably) dismissed without any consequences for the officers. When people ask me whether they should file complaints with APD over alleged misconduct, Grits routinely tells them they're wasting their time. If it's a really big deal, file a lawsuit; if not, go on about your life. APD's complaint process will bring you little but frustration and aggravation, accomplishing nothing.

By contrast, internal complaints by police officers against their peers are much less numerous but taken much more seriously by department brass and are more likely to ultimately result in discipline. 

One good thing Police Monitor Margo Frasier has done is begin to publish police disciplinary records online. See here. In civil service cities like Austin, information about police discipline only becomes a public record if an officer is suspended for multiple days. In non-civil service departments - which include the overwhelming majority of Texas agencies - information about ALL complaints and disciplinary actions are public records, making those agencies much more accountable.

H/T: Austin Statesman.

Judge who berated jurors could have violated judicial canons

Texas Lawyer's John Council has a feature (Nov. 21) on the story (covered here on Grits) of a visiting judge in Tarrant County berating jurors for issuing a verdict with which he disagreed in a DWI case. The conclusion of the story suggests the judge may have even violated canons of judicial ethics:

There's a reason why judges are well advised to keep their thoughts about a jury's verdict to themselves, said George Gallagher, judge of the 396th District Court in Tarrant County.

"The Code of Judicial Conduct is the first thing, to start out with. And then you have, on top of that, the Texas ethics rules—the rules that lawyers and judges have to follow. And both of those codes emphasize that, whether you're a judge or a lawyer, you should take no action that can contaminate jurors," Gallagher said. 

Those same jurors may be called back for service years later, Gallagher noted, and it could become problematic if during voir dire they detail their prior bad experience with a judge. 

"And then you've got 45 other people that say, 'Yeah we agree with them,' " Gallagher says. 

Judges normally refrain from publicly disagreeing with jurors because of Canon 3 of the Code of Judicial Conduct, according to Lillian Hardwick, an Austin lawyer who consults on judicial ethics issues and is co-author of "The Handbook on Texas Lawyer and Judicial Ethics.'

She points to Canon 3 B (4), which requires that a judge "shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity ... " and Canon 3B (5) which requires that a judge "shall perform judicial duties without bias or prejudice."

Another reason judges usually refrain from publicly disagreeing with jurors is it may create recusal issues for the jurist later, Hardwick said.

Overcrowding at S. Texas detention center forces juvie offenders to sleep on floor

In Hidalgo County, the recently expanded juvenile detention facility is already full, mostly with misdemeanor offenders, primarily because of paperwork delays by the local PD and the inexplicable failure of Judge Jesse Contreras to show up for work and stay there long enough to move his cases, reported the McAllen Monitor (Nov. 16). "During the past three months, The Monitor observed Contreras routinely arrive late or delay hearings for hours without explanation. On Aug. 30, Contreras suddenly announced a brief recess, left the building and didn’t return for about two hours." Judge Contreras says the only solution is to build more jail space, but clearly there's a lot more that can be done on his end to move cases along. These are issues of process, not capacity.

San Antonio Four Roundup

Here are a few notable articles published in the wake of the release of the "San Antonio Four" that merit Grits readers' attention:

• S.A.4 release 'just the beginning,' lawyers say
• Freedom for 'San Antonio Four' overdue
• 'San Antonio 4' hope case inspires others
• 'San Antonio 4' speak out after prison release: 'We're actually innocent'
• 'San Antonio Four' case could factor into DA's race

See also a Tumblr account about the case featuring video clips and photos, and recent, related Grits posts.

Union rep: TDCJ focuses on pigs' comfort over staff, inmates

Though perhaps ill-timed in light of today's cold front, Lance Lowry, a correctional officer and the president of the Huntsville-based local of the American Federation of State, County and Municipal Employees, has a column in the New York Times today titled, "In Texas, inmates and officers swelter." Here are some highlights:

In August, right around the time when the Texas summer heat was at its brutal worst, the state’s prison system finalized a bid to replace its aging swine-production facilities with six new climate-controlled modular barns, at a cost of $750,000. 

The pigs raised for inmate consumption were going to get relief from the heat, but the state’s inmates would continue to suffer. In the last six years, at least 14 inmates died from heat stroke or hyperthermia in overheated Texas prisons, where air-conditioning is scarce and temperatures can reach 130 degrees. 

The correctional officers, whose working conditions are the same as the inmates’ living conditions, have taken note. Several inmates’ families have filed wrongful-death lawsuits, and the officers’ union supports them. We also support those officers who plan to take legal action against the state because of intolerable heat in their workplace. ...

The prison system also tries to save money on climate control. The Texas Commission on Jail Standards requires all county jails to keep the temperature below 85 degrees — not necessarily a comfortable temperature, but a humane one. Still, the county jails house only 70,000 inmates, fewer than half as many as the state prisons, which are exempt. Some prisons have had air-conditioning installed, but only in the hospital areas and the administrative offices.

The overheating in prisons is made even more dangerous by other cost-cutting measures. Employment screening for correctional officers is inadequate, and a physician’s examination isn’t required for applicants — even though they’ll be expected to work in a physically demanding job up to 12 hours a day, sometimes in heavy Kevlar vests, often in extreme heat. And just as the inmate population is aging, the officer population is getting older, too: with the economic downturn, we’ve seen retired officers returning to the job. I once worked with an officer who was 82 years old.

Like the older inmates, many of these older officers take medications that make them particularly sensitive to the heat, including antidepressants and diuretics to control high blood pressure.

Under the Americans With Disabilities Act, the prison system may be liable for not providing reasonable accommodations. More than 15 percent of the inmate population has been found to have a mental illness, and some of them refuse to take their psychotropic medications in the summer, because the drugs can make them heat intolerant, leading to assaults on other inmates and correctional officers.

Regular readers may recall that this blog broke the story of TDCJ's pigs getting air conditioning while prisoners and COs sweated through the summer. I'm pleased to see the meme continuing to spread.

Regulate data collection from license-plate readers

When the 84th Texas Legislature convenes in 2015, Grits hopes they will consider and pass restrictions on the use of license plate readers by law enforcement and the private sector. Stateline published a story this week including details about how other states are handling the new technology:

Privacy advocates don’t object to police using LPRs to catch criminals. But they are concerned about how long police keep the numbers if the plates don’t register an initial hit. In many places there are no limits, so police departments keep the pictures—tagged with the date, time, and location of the car—indefinitely.

The backlash against LPRs began in earnest this year, as three more states limited law enforcement use of the systems and in some cases banned private companies from using the systems, for example, to track down cars for repossession. So far, five states limit how the cameras are used, and the American Civil Liberties Union anticipates that at least six other states will debate limits in the upcoming legislative session.

In New Hampshire, police and private companies (with the exception of the tolling company EZ Pass) are forbidden from using license plate readers. Utah requires police to delete license plate data nine months after collection. In Vermont, the limit is 18 months and in Maine it is three weeks. Arkansas police have to throw out the plate numbers after 150 days and parking facilities are the only private companies allowed to use the technology.

See the full story for more background.

DPS sharing closely held intelligence info with media ally Stratfor

Some readers may recall that Wikileaks in 2012 released a cache of emails from Stratfor, an Austin-based private firm with close ties to law enforcement that makes its money publishing expensive online intelligence briefings. A friend forwarded me a link to all their emails related to Occupy Austin, which for the most part revealed more about the juvenile attitude of various Stratfor analysts than it did about Occupy, however critical Grits has been of that movement.

More interesting, searching the files on Texas DPS one discovers they have a close relationship with Stratfor, sharing internal intelligence reports that aren't disseminated to traditional media. Here's a link to those DPS-related emails.

In some cases, DPS prepared information for Stratfor directly while concealing the fact that it was doing so. Stratfor Vice President of Intelligence Fred Burton sent an email to an analyst at one point declaring, "DPS put this together for me so we have data sets on the scope of spill-over crime into Texas from Mexico. We can use the data, but cannot attribute to DPS." Asked how they could use the data, Burton replied, "As long as we don't compromise DPS or any of the specific agencies cited, we can utilize." Burton appears to be in close contact with DPS Col. Steve McCraw, calling him a "good friend," and has friends in the Texas Rangers providing him intel outside of formal channels. One email chain with DPS chief of staff Robert Bodisch found Burton seeking (apparently successfully) to place a young woman in an internship; in another, he sought employment for a retiring Marine captain and Bodisch said to have the man contact him directly.

After McCraw became head of DPS, he asked Burton to take a leave of absence from Stratfor in 2009 to help launch the agency's "Intelligence and Counterterrorism Division, a slot that Burton thought would be good for Stratfor's long-term business interests:

On the business side, I think this would be a wonderful opportunity to open doors into markets that would serve us very well. Frankly, the long-term intelligence liaisons alone are worth their weight in gold.  We have the door cracked into the national fusion centers now (as Darryl knows) and this would put it over the top. Steve asked if I would consider stepping in Sept 1st and the state would compensate me for the time away. My goal would be to set up their CT structure, then leave to let them run with the ball.

Burton appears to be quite a piece of work. After a lunch meeting with the governor of the Mexican state of Quintana Roo, he wrote to his colleagues "Interestingly, the Gov had at least one armed shooter as muscle wearing a black tactical vest. The shooter kept giving me the evil eye, but I was packing heat and knew I could kill him if I had too [sic]." Yeah, right. In another email exchange he asked DPS Col. Steve McCraw if he could be made "some sort of Special Ranger." McCraw replied, "I am sure we can do honorary Texas Ranger. Let me check. Special Ranger requires TCLEOSE certification."

Burton's hope that his stint with DPS would result in special access to information apparently paid off.  At least during the period covered by the emails, DPS was giving Statfor access to Joint Operations and Intelligence Center briefings, daily summaries from Operation Border Star, BOLOs ("be on the look out" advisories), copies of DPS' weekly Border Operations Security Assessments, and internal updates from the DPS Intelligence and Counterterrorism Post Seizure Analysis Team. I didn't notice any representatives of Texas' regular mainstream media on the recipient lists, though Stratfor basically is just a specialized, high-dollar publishing outlet catering to corporations, government clients and rich folks. One wonders why, other than Burton's relationship with McCraw, they merit that sort of special treatment?

UPDATE: According to this Wired magazine article from August 2012, Burton also used his DPS connections to convince the agency to  install a surveillance tool called "Trapwire" for which Stratfor got a cut for referrals.

'Bulletproof': One quarter of suspects shot by Houston PD unarmed, officers hardly ever disciplined

Following up on reporting this summer by Emily DePrang at The Texas Observer, the Houston Chronicle is in the middle of a three-part series on shootings by the Houston Police Department called "Bulletproof." So far they've published parts one and two, with part three coming on Sunday. Here's how part one opened:

Houston police fired their guns at civilians more than 100 times in the last five years, resulting in numerous injuries and deaths, but never in charges against the officers.

From 2008 to 2012, officers shot 121 people, 52 of them fatally.

Police say their lives or others were threatened in all those incidents, although more than a quarter of the civilians shot by the Houston Police Department during that time were unarmed. Of the unarmed people shot, 10 died. They include a mentally ill double amputee in a wheelchair and a Navy veteran diagnosed with schizophrenia.

Officers shot unarmed civilians who “reached” or “grabbed” for their waistlines — or held objects such as cellphones or a hairbrush that police mistook for weapons.

Harris County grand juries have cleared HPD officers of criminal wrongdoing in all shootings from 2008 to 2012 that they have reviewed so far, a Houston Chronicle investigation has found.

The last time an HPD officer was charged for a shooting was in March 2004, when Arthur Carbonneau was indicted in the death of 14-year-old Eli Escobar Jr. Carbonneau was convicted of negligent homicide in that case. Since then, Houston police officers have been cleared by Harris County grand juries 288 consecutive times for shootings.

The newspaper also found that most HPD officers receive less shooting range training annually than what national and international police agencies recommend. And when it comes to fulfilling that basic training requirement, the department appears lagging. Houston police officers currently on the force have been cited 405 times by their superiors for failing to undergo annual firearms qualifications, according to an HPD database of sustained internal affairs complaints.

Very few HPD patrol vehicles, meanwhile, have dashboard cameras, denying officers and the public a proven method of documenting whether or not the use of force is appropriate. Jeff Monk, manager of HPD’s open records unit, said he was not aware of any HPD shooting from 2008 to 2012 that was captured on a dashboard camera.

Fort Worth cops used roadblock to gather cheek swabs, blood draws for federal research project

Here's a revolting development: Law enforcement performing roadblocks where private contractors perform cheek swabs and breathalyzer tests on behalf of the federal government. NBC-DFW.com reported yesterday that:

Some drivers along a busy Fort Worth street on Friday were stopped at a police roadblock and directed into a parking lot, where they were asked by federal contractors for samples of their breath, saliva and even blood.

It was part of a government research study aimed at determining the number of drunken or drug-impaired drivers.

"It just doesn't seem right that you can be forced off the road when you're not doing anything wrong," said Kim Cope, who said she was on her lunch break when she was forced to pull over at the roadblock on Beach Street in North Fort Worth.

The National Highway Traffic Safety Administration, which is spending $7.9 million on the survey over three years, said participation was "100 percent voluntary" and anonymous.

But Cope said it didn't feel voluntary to her -- despite signs saying it was.

"I gestured to the guy in front that I just wanted to go straight, but he wouldn't let me and forced me into a parking spot," she said.

Once parked, she couldn't believe what she was asked next.

"They were asking for cheek swabs," she said. "They would give $10 for that. Also, if you let them take your blood, they would pay you $50 for that."

At the very least, she said, they wanted to test her breath for alcohol.

She said she felt trapped.

"I finally did the Breathalyzer test just because I thought that would be the easiest way to leave," she said, adding she received no money.

Fort Worth police earlier said they could not immediately find any record of officer involvement but police spokesman Sgt. Kelly Peel said Tuesday that the department's Traffic Division coordinated with the NHTSA on the use of off-duty officers after the agency asked for help with the survey.

"We are reviewing the actions of all police personnel involved to ensure that FWPD policies and procedures were followed," he said. "We apologize if any of our drivers and citizens were offended or inconvenienced by the NHTSA National Roadside Survey."

FWPD demonstrated poor judgment in cooperating with this effort. If it was performed by off-duty officers in uniform, it seems like an even more egregious abuse of their authority than if it'd been part of their official duties. Either way, police roadblocks that stop every driver are an abomination from a civil liberties perspective and a waste of manpower from the point of view of maximizing benefits from limited police resources. Using them for an Obama Administration research project that doesn't even pretend to promote law-enforcement goals is just a flat-out outrage. They may call it "voluntary," but when a cop tells you to pull over, no reasonable driver would think ignoring them was a viable option.

CNN reported earlier this year that the same thing is happening in other states. One wonders how many other Texas jurisdictions participated in the NHTSA survey and what the feds will do with the data collected?

MORE: From Unfair Park.

Dallas DA's mortgage litigation crumbles under its own weight

A huge proportion of those prosecuted in the criminal justice system are poor folks represented by underpaid, appointed counsel. That may explain why, when it comes to white-collar crime, Texas prosecutors generally find themselves out-gunned, lacking the expertise or political will to aggressively pursue cases. And when they try, it frequently doesn't end well. The Dallas News has a story about a white-collar criminal prosecution that backfired after Dallas DA Craig Watkins out-sourced the case to politically connected attorneys. The article by Kevin Krause in today's paper opened:

A settlement in a complicated lawsuit in which Dallas County District Attorney Craig Watkins retained high-powered outside lawyers in an attempt to recover tens of millions of taxpayer dollars has died because those lawyers and the county couldn’t agree on legal fees.

After county commissioners kept delaying a vote on the proposed settlement, mostly because of the fee dispute, U.S. District Judge Reed O’Connor threw out the bulk of the lawsuit earlier this month.

Now the attorneys — most of whom are allies of Watkins or the Democratic Party — and the county both are empty-handed. The only satisfied party is the suit’s defendant, Mortgage Electronic Registration System.

“We are very pleased with this development,” said Janis Smith, Merscorp’s vice president for corporate communications. “The scope of this case has been substantially narrowed.”

Merscorp is the parent company of MERS. ...

The suit alleges that MERS — which was founded by Fannie Mae, Freddie Mac and several large U.S. banks in 1995 — was a conduit for buying and selling mortgages by lenders. The suit said MERS avoided paying recording fees to the county when mortgages changed hands, as required by law.

The county was seeking to recoup years of lost revenue from those recording fees. Other counties across the nation also filed similar suits against the company. MERS has won many of those cases.

To be fair, if the feds had aggressively pursued white-collar offenses after the derivatives mortgage-related financial fiasco nearly brought down the US economy several years ago, local prosecutors wouldn't be stuck trying to go after these complicated cases piecemeal. But the episode suffers from bad optics - particularly the selection of politically connected attorneys to spearhead the case - and demonstrates why white-collar offenses tend to go un-prosecuted and un-punished while poor folks fill up the jails and prisons for much smaller-scale matters.

Similar litigation has been greenlighted in Nueces County. Too bad Dallas couldn't get its act together.

CORRECTION: An attorney friend emailed to say, "It isn't really 'derivatives' litigation.  That word indicates a securities law case.  MERS is about the mortgage industry creating a straw man non profit of sorts to 'hold' mortgages while the notes are traded behind the scenes.  The consumer/debtor has no idea -- and no way of confirming -- who really owns the debt they owe.  And counties get screwed out of filing fees.  Although the liens and notes are changing hands, the county records are not updated." She's entirely correct, I misstated that, should have known better, and regret the error.

Prostitution/law enforcement follies

A couple of stories about law enforcement in Texas allegedly protecting prostitution lately caught Grits eye:

First, a major prostitution bust in San Antonio in 2007 "fizzled amid allegations from some who alleged the FBI interfered with the SAPD probe, and that [the main target Samuel] Flores was protected because he cooperated with the FBI on unrelated investigations," the SA Express-News' Guillermo Contreras reported last week. Mr. Flores "was nabbed [last] week in Austin on an indictment alleging he was dealing methamphetamine in San Antonio. He was denied bond during a hearing in Austin on Thursday, and ordered transferred to San Antonio for trial. "

Wrote Contreras, "The FBI and U.S. attorney's office denied the allegations, but nonetheless, the matter bruised feelings between the FBI and SAPD and resulted in an internal affairs investigation by the FBI's Office of Professional Responsibility," the results of which were never released.

Meanwhile, in Dallas vice squad Detective Jose Luis Bedoy has been indicted on federal charges for tipping off a prostitute with whom he was engaged in intimate relations about upcoming Dallas PD stings, giving her tips on how to avoid arrest, Tanya Eiserer at the Dallas News reported. “Authorities allege that the relationship lasted for years and during the entire time Bedoy provided 'law enforcement-sensitive information to her about DPD Vice Unit prostitution raids and other enforcement actions.'”

Both stories hint at larger, big-picture issues. The latter reminds me of a study out of Chicago that found 3% of tricks by prostitutes operating without pimps were "freebies given to police" in exchange for protection. The former reminds us of the pitfalls of police reliance on criminals as confidential informants, who frequently go on to commit as many crimes as they help police solve, but under the de facto protection of law enforcement.

In an era when HBO has turned a legal Nevada brothel into a popular reality TV series, Grits has to wonder whether, when it comes to keeping the "oldest profession" illegal, the juice really is worth the squeeze. Many of the worst negative consequences - including human trafficking, exploitation by pimps, and law enforcement corruption - primarily result from delivering services through a black market.

Godsey: 'Texas now on cutting edge of efforts to free the innocent'

Nice to see my employers at the Innocence Project of Texas (IPOT) getting national kudos for the group's legal and policy work in light of the ruling today overturning convictions of the "San Antonio Four." Wrote Mark Godsey at the Huffington Post:

Today in Texas, four wrongfully convicted women--known as the "San Antonio Four"--had their convictions overturned and were freed. This came about thanks to the latest in a line of innovations Texas lawmakers and the Innocence Project of Texas have devised to help the wrongfully convicted. Often thought of as a rough-and-tumble, "Hang 'Em High" state--and still leading the nation in capital punishment--Texas is surprisingly now a trendsetter for innocence reforms. 

Go here to read the full story.

The legislation Godsey credits with helping secure the overturned convictions (see more on that here) was something your correspondent worked on for several years on IPOT's behalf before coming to terms with prosecutors to push the bill across the finish line. Sen. John Whitmire carried the bill for three sessions before it finally passed, and Rep. Sylvester Turner was the house sponsor. Thanks again to both of them. And congrats in particular to Mike Ware, the former head of the Dallas County Conviction Integrity Unit, an IPOT boardmember and the lead attorney who worked on the women's habeas corpus writs. Given how long it took to get the law changed, this was a particularly gratifying win.

MORE: See coverage and photos from the SA Express-News.

Barney Fife gets demoted following one-man shoot-out

Mclennan County District Attorney Abel Reyna has demoted his First Assistant, Michael Jarrett, after he fired a pistol in his office, shooting out a window. Though it's a Class A misdemeanor to fire a handgun within the city limits of a town the size of Waco, no one should be surprised that Reyna declined to prosecute one of his own. The most pathetic part of the story, though, was that the DA launched an aggressive investigation to discover who leaked a photo of the shot-out window to the Waco Tribune Herald. The paper reported:

After the shooting incident, an internal office investigation was launched to try to determine who sent a photograph of the shattered window to the Tribune-Herald, courthouse sources said.

Prosecutors’ phones have been examined and prosecutors have been interviewed by Reyna’s staff in an effort to uncover who sent the photo to the newspaper.

Reyna said Monday the investigation was not conducted because the photo appeared in the newspaper. He said it was conducted because the photograph “jeopardized the security of this entire office and was a huge security issue.”

Grits calls "bullshit." The notion that it created a "huge security issue" is nonsensical. (See the picture in question above.) What it created was a huge embarrassment. Or maybe it was McLennan County voters who did that when they installed Reyna and Co. in the first place.

RELATED: Time to implement the Barney Fife rule at McLennan DA's office.

Every girl crazy 'bout a sharp-dressed man

Texas Monthly's Leslie Minora has a short piece in the New York Times about exoneree Christopher Scott, who took his compensation money and opened a men's clothing store two years ago. The item honed in on the Beau-Brummellesque fashion sense peculiar to Dallas-area exonerees that's been much remarked upon when they've come to the Texas capitol to lobby and testify. “The spiffy look is unique to the Dallas group, according to Karen Wolff, a social worker with the Innocence Project.  'That’s just who they are; they’re just regal,' Wolff said.  Seeing the men, she added, is 'like you walked into some kind of conference for large, snappy-dressed black men. It’s a sight.'”

She's not lying. Having attended dozens of events over the years with Dallas-area exonerees as part of my work with the Innocence Project of Texas, including numerous lobby sessions and committee hearings at the capitol, Grits has become accustomed to feeling like a pigeon amidst a field of peacocks whenever I'm around them. Wrote Minora:

Scott’s store is both a convenience and a physical reminder of the group’s expectations. They have an image to uphold, and it’s not that of criminals.

Dr. Jaimie Page, co-director of the Texas Exoneree Project and a social work professor, said that as more exonerations took place and the group became a brotherhood, fashion became part of their culture.

“Part of it is very deep and meaningful, and part of it is fun,” Page said. “It helps with their new identity. It helps with their self-image and self-esteem.”

See the full story. Congrats on the coverage, Chris. Hope it draws you some business.

TDCJ bigwigs got much bigger pay hikes than front-line COs

The Austin Statesman's Mike Ward reported ("Texas prison managers got double digit pay raises while rank and file got 5%," Nov. 17) that, in contrast to front-line prison employees who received a five percent pay raise in the new state budget, "Executive pay increases ranging from 8 percent to more than 23 percent were given in September to top leaders in the Texas Department of Criminal Justice."

The executive pay issue has arisen at agencies that include the Texas Department of Transportation, Employees Retirement System, Department of Public Safety and Texas Juvenile Justice Department. At those agencies, executive directors and some members of upper management teams are making six-figure salaries well in excess of the governor’s pay: $150,000 a year.

The prison-system raises ranged from a $66,000 increase for Dr. Lanette Linthicum, the medical director who went from $309,000 to $375,000; a $22,000 per-year increase for Carey Welebob, director of the Community Justice Assistance Division who went from $94,120 to $116,150; to a $16,600 increase for Deputy Executive Director Bryan Collier and Chief Financial Officer Jerry McGinty, who both went from $133,301 to $150,000.

Several other top officials received pay bumps of more than 12 percent, including Inspector General Bruce Toney, General Counsel Sharon Howell, Parole Director Stuart Jenkins, Facilities Director Frank Inmon and Chief of Staff Jeff Baldwin.

By contrast, the more than 23,000 correctional officers who make $37,000 or less got a 5 percent bump in pay.

Grits considers it bad form to count other people's money so I wouldn't join those "Prison employees [who] complain those pay hikes are too generous." But internally, the raises undoubtedly suffer from bad optics during a period when thousands of guard positions go unfilled thanks to low pay, grueling summer heat, and rural prisons located far outside Texas' main population centers. "Told of the executive raises, several corrections officers responded with expletives. None wanted to be quoted, citing a fear of job reprisals," Ward reported.

Perhaps it's true, as TDCJ insists, the raises were "necessary to retain top talent." But there's little doubt that low pay and poor morale have lately worsened retention rates for front-line correctional officers. Arguably that's a bigger problem for the agency than the risk that Brad Livingston or Sharon Howell might leave for higher paying gigs elsewhere in Huntsville.

Electronic Privacy Roundup: What can states do to rein in NSA phone surveillance?

Here are a few recent items related to electronic privacy that may interest Grits readers:

Check out a recent GAO report titled,  "Information Resellers: Consumer Privacy Framework Needs to Reflect Changes in Technology and Marketplace" (pdf). Regarding location information, which has been a focus on this blog, GAO found that apart from a law regulating information about young children, "No federal privacy laws that we evaluated ... expressly address location data, location-based technology, and consumer privacy." (Texas came close to passing a statute this year regulating location data and several other states have done so since then.) The GAO report noted in passing that "In 2010, [the federal Department of] Commerce recommended that the Administration review [the Electronic Communications Privacy Act] to address privacy protection of location-based services." (Those interested can view that report here.)

Regrettably, while the GAO report included some discussion of the privacy implications for consumer information shared with third parties, it utterly failed to address the Fourth Amendment implications of the third-party doctrine as it applies to law enforcement accessing consumer data held by vendors. Meanwhile, the Obama Administration continues to apply a sweeping interpretation of the 1979 US Supreme Court case, Smith v. Maryland, to claim that consumers have no significant privacy interests once data from their computer or smart phone is shared with a third-party vendor. For example, ACLU's Free Future blog has a post detailing the feds' arguments for allowing the Drug Enforcement Agency to access a massive database of phone calls maintained by ATT, apparently part of the "Hemisphere" program which was recently revealed in reporting at the New York Times. According to the civil liberties group:

The government relies on a 1979 case, Smith v. Maryland, to argue that people have no reasonable expectation of privacy in their phone records under the Fourth Amendment. But that case involved collection of just a few days’ worth of dialing information about a single phone. Hemisphere involves searching a database containing billions or trillions of phone records and analyzing individuals’ communications over an extended period of time. The Smith opinion simply can’t justify the kind of mass surveillance the government is engaged in now.

The sweeping implications of court-created exceptions to the Fourth Amendment authored in Smith v. Maryland cannot be overstated in the wake of the technological revolution witnessed in the 21st century. Offering just a glimmer of hope on that score, computer security guru Bruce Schneier recently suggested that "the public/private surveillance partnership between the NSA and corporate data collectors is starting to fray. The reason is sunlight. The publicity resulting from the Snowden documents has made companies think twice before allowing the NSA access to their users' and customers' data."

Finally, Truthout published an interesting item by Michael Boldin, executive director of the Tenth Amendment Center, posting the question, "How can the states provide Fourth Amendment protection against the NSA?" Boldin suggests that states could rely upon a longstanding legal principle called the anticommandeering doctrine" to potentially thwart mass surveillance of Americans by the NSA. In essence, "This means the federal government cannot require a state to carry out federal acts. The federal government can pass a law and try to enforce it, but your state isn't required to help them." He thinks the doctrine "can have a significant impact on the NSA's ability to continue its mass-spying programs." Moreover, Texas and Utah, in particular, are in unique positions to influence these national programs because, in the middle of the last decade, the NSA maxxed out its growth potential in the Washington D.C. area, turning to those two states for expansion:

To get around the physical limitation of the amount of power required to monitor virtually every piece of communication around the globe, the NSA started searching for new locations with independent resources.

A location was chosen in San Antonio because of the independent power grid in Texas. The new Utah Data Center was chosen for access to cheap utilities, primarily water. The water-cooled supercomputers there require 1.7 million gallons of water per day to function.

That water is being supplied by a political subdivision of the State of Utah. Under the anticommandeering doctrine, Utah isn't required to provide that water.

No water = No NSA data center.

Boldin's group has put forward model legislation (pdf) called the 4th Amendment Protection Act to forbid "material support, participation or assistance, to any federal agency which claims the power, or with any federal law, rule, regulation, or order which purports to authorize the collection of electronic data or meta data of any person(s) pursuant to any action not based on a warrant that particularly describes the person(s), place(s) and thing(s) to be searched or seized." I don't know how that suggestion would jibe with existing Texas law regarding provision of electrical power, but it's a bold and fascinating proposal. Argued Boldin:

This same process was used effectively by northern abolitionists in resistance to the Fugitive Slave Act of 1850. Today, states like Washington and Colorado are helping end the war on cannabis by refusing to comply with federal prohibition.

We should follow their courageous path against the NSA as well.

Should the Fourth Amendment apply to foreigners?

In the wake of reports that the US tapped the phone of German Chancellor Angela Merkel and other world leaders, Washington Post editorialist David Ignatius offered up an interesting discussion of whether the Fourth Amendment should apply to foreigners. Responding to a blog post from Georgetown law prof David Cole advocating the affirmative, George Washington University law prof Orin Kerr offered an opposing view, suggesting that his differences with Cole "are based on two different conceptions of government. I tend to see governments as having legitimacy because of the consent of the governed, which triggers rights and obligations to and from its citizens and those in its territorial borders. As I understand David, he has more of a global view of government, by which governments are accountable to all humans worldwide." By Kerr's reckoning, their arguments were "essentially playing out the majority and dissenting opinions in United States v. Verdugo-Urquidez, with me echoing Chief Justice Rehnquist’s majority opinion and David echoing Justice Brennan’s dissent."

When you actually read that case, though, Kerr misrepresented Justice Brennan's views. Brennan's stance was not based on some fuzzy-headed citizen-of-the-world mentality but instead the argument that the Constitution imposes limits on government, not just the citizenry. From his dissent in Verdugo-Urquidez (citations omitted):

What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The "sufficient connection" is supplied not by Verdugo-Urquidez, but by the Government. Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose "societal obligations," such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment.

By concluding that respondent is not one of "the people" protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. We have recognized this fundamental principle of mutuality since the time of the Framers.

So Brennan wasn't saying that the American government should be accountable to foreigners, he was arguing that it should be accountable to the Constitution. Verdugo-Urquidez was handed down in 1990, an example of the Supreme Court denuding the Fourth Amendment in deference to the drug war. There's a growing array of cases in which SCOTUS has eroded Fourth Amendment protections to make it easier for the government to prosecute and convict drug offenders, and this is an example where application of those precedents leads to unintended consequences.