Thursday, December 26, 2013

Top Ten Texas Criminal Justice Stories of 2013

Here's Grits' list of the top ten Texas criminal justice stories of 2013. Let me know in the comments what other stories you think should have been included in the list.

1. Michael Morton Act opens up prosecutor files. The 83rd Texas Legislature required prosecutors to open up their files to the defense instead of playing hide-the-ball with their evidence until trial. The law takes effect in January 2014 and will go a long way toward reducing prosecutorial misconduct.

2. Habeas corpus can now confront junk science. The Legislature this year approved SB 344 by Sen. John Whitmire allowing courts to reconsider convictions obtained using junk science. Already, just a few months after it took effect, courts have overturned high-profile convictions such as the San Antonio Four as well as Fran and Dan Keller based on the new law. Texas was the first state in the country to expressly direct courts to confront junk science through habeas corpus writs in this fashion.

3. Drug cases overturned based on DPS crime lab screwups. After DPS crime lab worker was caught drylabbing evidence (reporting results without running the tests), the Court of Criminal Appeals (CCA) tossed more than a dozen cases in which he'd handled drug evidence, concluding that his unreliability tainted the chain of custody. Currently, a case is pending at the CCA which will decide whether all of Salvador's cases may be overturned or only the ones in which evidence has been destroyed and is no longer available for re-testing. Salvador handled nearly 5,000 cases over the course of his career.

4. Closing more prison units. After ordering the Central Unit closed in 2011, Texas closed two more adult prison units in 2013 - private prison facilities in Dallas and Mineral Wells. They also ordered three more juvenile facilities closed - a mental health unit in Corsicana and two halfway houses - thanks to radically declining numbers of juvenile inmates following juvie diversion reforms enacted in 2007.

5. Lege takes on electronic privacy. Texas became the first state in the nation to require police to obtain search warrants to access cloud-based email and other content. Previously, following federal law, Texas cops could access cloud-based content "stored" by third parties (think Gmail and Google Drive) without getting a search warrant. The Lege also passed a law banning drone surveillance, requiring police to obtain a search warrant to use unmanned spy drones in most circumstances. In addition, the Texas House voted 126-4 to require warrants for police to access cell-phone location data, but the measure did not clear the Senate before session ended. Lt. Governor David Dewhurst has ordered the Senate State Affairs Committee to consider a number of criminal-justice related electronic privacy issues in 2014 and make recommendations for legislation in the 84th session.

6. Elected District Attorneys breaking bad. Former Williamson County DA and District Judge Ken Anderson went to jail and lost his law license for infamously concealing evidence in Michael Morton's case. Former Cameron County DA Amando Villalobos was convicted of bribery (along with a local judge, a state rep, and several attorneys). He faces up to 20 years in prison; his sentencing hearing is scheduled in January. Travis County DA Rosemary Lehmberg was arrested for DWI with a BAC three times the legal limit and spent several weeks in jail. Polk County District Judge Elizabeth Coker was drummed out of her seat by the State Commission on Judicial Conduct for texting assistance to prosecutors while trials were going on. She left the bench this month and immediately announced she's running for District Attorney against incumbent Lee Hon, the outgoing chair of the Texas District and County Attorneys Association who testified against her during the SCJC proceedings.

7. Forensic commission granted authority to review old junk science cases. The Legislature expanded the jurisdiction of the Forensic Science Commission after an Attorney General's opinion had earlier limited their ability to examine older cases. This year, acting on an FSC recommendation, the state fire marshal began examining junk science in old arson cases and the FSC also launched a review of convictions based on hair and fiber evidence which has proven to be unreliable. Coupled with the new junk science writ (see above), these developments put Texas at the cutting edge of state-level innocence work.

8. DPS backs off roadblocks. The Texas Department of Public Safety set up roadblocks in South Texas that were greeted with an embittered public backlash. After they ended, DPS Col. Steve McCraw announced the agency would cease using the controversial tactic unless the Texas Legislature explicitly approved it.

9. Prison heat litigation gets a boost. TDCJ faced more lawsuits after the 5th Circuit Court of Appeals allowed litigation to go forward over excessive summer heat inside Texas prison units, most of which lack climate control. At least 14 inmates have allegedly died in recent years from heat-related causes. Texas prison guards joined the litigation after Grits broke the story this summer that TDCJ was constructing climate-controlled facilities for its hogs, even though most guards and prisoners lack air conditioning inside the units. In December, a federal judge in Louisiana, which is also in the 5th Circuit, ruled that the heat index at the facility housing death-row inmates must be kept below 88 degrees Fahrenheit. This issue appears primed to blow up in TDCJ's face in 2014.

10. Online solicitation statute ruled unconstitutional. In a surprising, unanimous decision, the Court of Criminal Appeals ruled part of Texas' online solicitation of a minor statute unconstitutional, deciding that the only parts that weren't redundant with other statutes criminalized constitutionally protected speech. Houston attorney Mark Bennett, who litigated the case and operates the blog Defending People, has predicted that other, related statutes may also fall based on First Amendment grounds.

Honorable Mention:
RELATED: See the Texas Tribune's 2013 Year in Review on criminal justice topics.


Anonymous said...

Regarding 'Junk'

Anyone know if SB 344 applies to folks like long time GFB subscriber Mrs. Audrey White. A blacked out hush, hush, case that hinged on the assumed contents of a company laptop that the ADA couldn't retrieve and submit to the court or jury due to a drained battery? I let one of mine drain for 6 months as I left it in a storage shed and I'm using it right now, works just fine.

If that doesn't qualify as Junk then I guess we need another SB to cover the Junk Computer Sciences and ADA Assumptions. Then there are juries that think they work for the ADA to consider.

Thomas R. Griffith said...

Grits, if you get time please consider including the story in the form of a Guest Post over at Defending People by Mr. Rob Fickman, where he takes a one of a kind stand on behalf of: the taxpayers, the citizens, the criminal defense niche and the state of Texas as a whole. Maybe as number 10 & 1/2 and maybe not as much a Story but more as a call to end a long running F-Story.

As I look for the DP link, here is one to his website.

Btw, The list you created is spot on. Thanks.

Gritsforbreakfast said...

I linked to that when Bennett posted it, TRG. I definitely agree with it, though perhaps not with the fasting part.

An Attorney said...

Interesting comment on NY Times editorial page today: Cites that all death penalties arise from 2 percent of U.S. counties.

Anonymous said...

Its not very surprising that death penalties would be most frequent in a small number of counties. Around 50% of the population is found in about 4% of counties. Violent crime rates are also higher in these urban counties. Comparisons of frequency counts across counties (which vary greatly in population) are pretty meaningless for understanding trends (although they do make nice memes for propagandizing). Comparisons of rates is of much greater value.