Grits for Breakfast: 2013

Tuesday, December 31, 2013

New DOJ homicide stats: Murders at 50-year low; blacks 6x more likely to be victims; mass shootings rare

Check out these highlights and lowlights from the new DOJ Bureau of Justice Statistics report, Homicides in the U.S. Known to Law Enforcement, 2011:

The U.S. homicide rate declined by nearly half (49%), from 9.3 homicides per 100,000 U.S. residents in 1992 to 4.7 in 2011, falling to the lowest level since 1963. From 2002 to 2011, the average homicide rate for males was 3.6 times higher than the rate for females. The average homicide rate for blacks was 6.3 times higher than the rate for whites.
From 2002 to 2011, young adults ages 18 to 24 had the highest homicide rate of any age group and experienced the greatest rate decline (down 22%) over the 10-year period, from 15.2 per 100,000 in 2002 to 11.9 in 2011.
The rate of homicides involving a firearm decreased by 49% from 1992 to 2011, while the percentage of homicide victims killed by a firearm (67%) remained stable.
Large cities of 100,000 or more residents experienced the largest decline (23%) in homicide rates from 2002 to 2011, compared to communities with less than 100,000 residents.
From 2002 to 2011, the majority (95%) of homicide incidents involved a single victim. In 2011, 66% of homicides with a single victim involved a firearm, compared to 79% of homicide incidents with multiple victims.

Not only was the 4.7 per 100K homicide rate in 2011 the lowest since 1963, it was "54% below its peak of 10.2 per 100,000 persons in 1980." Further, despite all the publicity surrounding high-profile mass shootings, "Since 2002, the percentage of homicide incidents involving two or more victims has remained relatively stable." According to the report, "In 2011, about 110 homicide incidents involved three victims, or less than 1% of all homicides that year. Homicide incidents involving four or more victims were even less frequent. In 2011, of an estimated 13,750 reported homicide incidents, about 25 involved four or more victims."

Rehearsing arguments for warrant requirement re: cell phone location data

Since Texas' legislation to require law enforcement to seek warrants for cell-phone location data failed to pass in 2013 (despite stalwart efforts from state Senators Juan Hinojosa and Craig Estes and state Rep. Bryan Hughes, along with his many joint and coauthors), Grits has continued to follow debates in other states that could inform a renewed push for such a bill next session. To that end, I was interested to see this amicus brief (pdf) from the Electronic Frontier Foundation, filed in a Connecticut case, arguing for the courts to impose a warrant requirement.

The brief argues that cell-phone location data "reveals a detailed map of a person's location over time," and urge the court to take seriously the US Supreme Court's admonishment in Kyollo to reject "mechanical interpretations" of the Fourth Amendment, and the 7th Court of Appeals declaration that "The meaning of a Fourth Amendment search must change to keep pace with the march of science."

There are now more cell phones than people in the United States, according to the brief, and 56% of them are "smart phones" that allow for even more accurate location tracking (because they're constantly pinging the nearest cell tower for emails, texts, etc..) The growth in smart phone use has been accompanied by an explosion in the number of cell towers, which as a practical matter "means that a person's location can be pinpointed with even greater precision." EFF cited a 6th Circuit case, US v. Skinner, in which:

law enforcement was able to track a phone (and the person carrying it) almost 770 miles from Tucson, Arizona to Abilene, Texas over two days. Agents could see the suspect's travel point by point, and waited until he stopped at a rest stop before swooping in to arrest him. Most critically, [a]t no point did agents follow the vehicle or conduct any type of visual surveillance." The cell phone made the government surveillance easier. Agents would not need to follow the truck physically around the clock or run the risk that they would be discovered. Nor did they need to find a way to surreptitiously install a GPS device onto the truck to track its movements. Instead, as the New Jersey Supreme Court recently noted, cell site information "is akin to using a tracking device that can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. (Citations ommitted.)

Further, "cell phone tracking can even reveal information about a person in the most constitutionally protected space: a home. One federal magistrate judge has noted 'pinging a particular cellular telephone will in many instances place the user within a home, or even a particular room of a home.'"

Argued the brief, "Imposing a search warrant requirement would not result in an unnecessary burden on law enforcement because the law currently requires the government seek judicial authorization before obtaining" cell-phone location data. Under Texas law, by comparison, the current standard for obtaining this information is less clear. In legislative hearings last spring, most agencies said they too were seeking court orders - albeit at a lower standard than required for a warrant - to access cell-phone location data. But the Texas Department of Insurance told legislators it obtained that information using only a subpoena, and representatives of cell-service providers said they provided information under both subpoenas and court orders based on reasonable suspicion. The EFF brief concluded:

cell-phone location data "is a valuable crime fighting tool because of its power to intrude on a traditionally private sphere to obtain an enormous amount of sensitive information about where a person has been, their patterns of movements and their associations and affiliations. Law enforcement should be permitted to use this information to keep people safe, provided they adhere to strict safeguards designed to protect privacy. The proper way to balance these interests is to require a search warrant supported by probable cause before authorizing disclosure of cell site location information.

Expect similar arguments to be made next year when the Texas Lege again considers these issues. Maine, Montana and New Jersey have all instituted warrant requirements for police to access this information and I fully expect other states to follow suit before the 84th Texas Legislature re-convenes. Indeed, if the scandal over the NSA's collection of cell-phone records had erupted just a couple of months earlier than it did, I have little doubt Texas would already have passed such legislation. If we get it done in 2015, though, that would still be better late than never.

Make appellate public defender in Bexar County independent

Lately, more Texas counties have been experimenting with public defender systems - some of them rather specialized, like the Bexar County Appellate Public Defender - but apparently not everyone has worked out all the organizational kinks.

In Bexar County, the commissioners court placed the Appellate Public Defender's office under the "Judicial Services Department," a division led by a non-lawyer which also oversees the crime lab, pretrial services, the medical examiner, and several other departments. The problem with that arrangement arises when the public defender must dispute the findings of forensic experts employed in their same division. The Bexar office filed a motion to withdraw as counsel in a drug case over this issue. According to the motion:

The conflict arises from the fact that both the undersigned counsel and the forensic scientist, Robert Rodriguez, are employed by the same county department: Judicial Services. ...

Appellant recently wrote to the undersigned counsel asking him to challenge the work of the forensic scientist and assert that trial counsel was ineffective in failing to attack the veracity of the lab tests. The undersigned has reviewed the record and finds no support for an appellate challenge to the veracity of the lab tests or the work of the forensic scientist. Nevertheless, it is apparent that Appellant wishes to raise that issue on appeal. That is where the conflict lies. If the undersigned refuses to challenge the work of the forensic scientist on appeal, then Appellant may well assume that his refusal is due to a conflict of interest arising from the fact that the undersigned and the forensic scientist both work for the same county department and both ultimately answer to the same department chief, the Judicial Services Director. ...

The conflict of interest extends to all attorneys employed by the Public Defender's Office, and the entire office is disqualified from further representation of Appellant unless he waives the conflict.

Upon remand from the appellate court, Bexar County District Judge Phillip Kazin recommended that the motion be granted.

Article 26.044, Code of Criminal Procedure says a public defender's office is supposed to be "a department of a county," and Grits was always under the impression that meant it should be a stand-alone entity. I hadn't realized there were counties that stuck their PDs in the same division as the crime lab, ME's office, etc., but one can see where it presents at least the appearance of a conflict. Imagine if the Harris County Public Defender suffered the same sort of conflict when the Jonathan Salvador fiasco arose at the DPS crime lab in Houston? What a mess that would be!

The Texas Indigent Defense Commission is reviewing the situation in Bexar and may formally address it in the new year. Until then, the Bexar commissioners court should seriously consider making the public defender a stand-alone entity, as this issue is likely to recur. Better to fix it now while the scope of the problem remains narrow than to wait for the sort of mess they're dealing with in Houston when the conflict could affect a small avalanche of cases.

Monday, December 30, 2013

Few Houston cop cars outfitted with cameras

Houston has the lowest proportion of squad cars in their fleet outfitted with dashcams among the largest Texas law enforcement agencies, reported the Houston Chronicle ("HPD lags in dashboard cameras; many shootings not filmed," Dec. 29). Here are the stats for the biggest agencies:

Houston Police Department: 3,984 fleet, 199 dash cameras
Texas Department of Public Safety: 4,411 fleet, 2,396 dash cameras
Austin Police Department: 1,335 fleet, 510 dash cameras
El Paso Police Department: 825 fleet, 365 dash cameras
Fort Worth Police Department: 1,227 fleet, 326 dash cameras
Dallas Police Department: 1,757 fleet, 960 dash cameras

Reported the Chronicle:

Houston police have fewer dashboard cameras than any major Texas law enforcement agency, providing them with little of the recorded evidence that other departments have to determine whether an officer violated procedures or laws. ...

A recent Houston Chronicle investigation showed more than one-fourth of civilians shot by HPD from 2008 to 2012 were unarmed, and apparently none of the 121 shootings in that time frame were captured by dash cameras.

HPD Chief Charles McClelland this month announced a program to test 100 small cameras worn on the front of officers' uniforms, saying this newer technology has made dash cameras obsolete. He did not address the future of HPD's dashboard cameras.

Grits is a fan of dashcams and has long believed that the bodycams HPD will be "testing" should be universally adopted. I don't know whether they'll make dashcams "obsolete" - given how often dashcams conveniently seem to malfunction during critical incidents, personally I'd welcome the redundancy. But the arguments in favor of cameras far outweigh those against them, particularly now that costs have precipitously declined.

One of these days these boots are gonna walk all over you

This unfortunate Reuters story (Dec. 22) about a murderer-turned-bootmaker-turned-parole-violator provides a window into the difficulties of ex-prisoners trying to reintegrate into society, especially those who've spent many years behind bars. The article opened:

Lawmen would come from across Texas just to walk a few miles in the boots made by inmate Arnold Darby.

Darby, 64, soft-spoken, bespectacled and tattooed, was once one of the most prodigious bootmakers in the Texas prison system, turning out more than a thousand pairs of custom-made footwear for police, FBI agents and the governor's office, prison officials said.

But freedom put an end to that.

After 37 years behind bars, serving time for robbery and murder, Darby was released on parole in 2011.

The highly skilled bootmaker was looking to open his own shop in a state that loves its boots. But lacking start-up cash, he settled for making boxes at a food-processing plant.

After only a year on the outside, Darby violated parole by driving while intoxicated and was sent back to prison.

This time, however, he has not been in the new unit long enough to earn what is considered a privileged position in a workshop, and the once-vaunted jailhouse cobbler is not sure if he will ever make boots again.

"I was working six or seven days a week, and I started drinking a little bit. That is what brought me back," said Darby in an interview from the Goree Unit prison in Huntsville, about 70 miles north of Houston.

The Texas parole board said in an emailed statement: "Mr. Darby was revoked on August 29, 2012, after he waived his hearing for DWI, failure to stop and render information and violation of the GPS monitor."

His next parole review is in March 2015, and Darby does not expect to be at a bootmaking bench until then.

"He was once a model prisoner and he made boots for everybody" said Larry Fitzgerald, a longtime spokesman for the Texas Department of Criminal Justice who has since retired.

"You have to be, to work in the craft shop - because you are surrounded by weapons of all kinds," he said.

Fitzgerald himself owns three pairs of Darby's boots.

Darby went to prison in 1974 for aggravated robbery. He later received life sentences for killing two fellow inmates in gang violence. There was also an attempt to escape along the way, where he was shot in the head.

"My biggest regret of all was getting in the game," Darby said.

So many lamentable angles to this article: A murderer who no one thinks will kill again but still could be locked up forever. An inmate leaving prison after decades without effective treatment for alcoholism, returning over a DWI. (Too bad, given his age and circumstances, he wasn't considered a candidate for treatment at an Intermediate Sanctions Facility instead of leaping to immediate revocation.) An aging prisoner whose healthcare costs will be borne by the state of Texas instead of Medicare. A skilled bootmaker who can't practice his craft outside prison and now, can't do so on this inside, either. A prodigious craftsman who made high-end footwear on the cheap for lawmen across the state but only made about $2,000 per year doing so, nearly all of which was spent at the prison commissary. (In the outside world, you can pay $600 to $800 or more for a single pair of hand-made boots without batting an eye.) Then there are the barriers to successful reentry: A man who entered prison during the era of eight-track tapes and predictably struggled to re-launch his life in the 21st century. Someone with a marketable skill but no access to capital and whose record prevented employment in his field, leaving him underemployed at a job that failed to utilize his talents. These aspects of the story aren't unique to Mr. Darby, but his example epitomizes them.

I'm sure there are many who think Darby should never have been released in the first place. But Texas prisons release more than 70,000 inmates per year and, from a systemic perspective, that's not a realistic view. With as many people as the state keeps sending in, some of them have to be let out. And as a general rule, people age out of crime. A return to drinking may be more typical of someone of his generation (he and Travis County DA Rosemay Lehmberg, who was recently convicted of DWI, are about the same age), but it's highly unlikely this person would ever have returned to robbery or killing.

Mr. Darby's story exemplifies the formidable obstacles to successful reentry for those leaving prison and reminds us that the state places too little emphasis in assisting ex-cons in making a new life. As a result, the state will pay for his housing, meals and medical care for a few years longer, providing no real benefit to anyone. If Darby could have found an employer willing to give him a chance to use the skills he'd spent decades honing in prison, maybe this saga would have a more convivial ending.

Thursday, December 26, 2013

Book 'em: New law criminalizes overdue library books

AP reported today on a new crime in Texas that I hadn't noticed during last spring's legislative session:

Call it throwing the book at the bookworms.

A Texas man who was arrested for failing to return an overdue library book ignited an online flurry of snarky comments and headlines about the Lone Star State extending its tough-on-crime bravado to books. But such cases aren't unheard of, and many communities faced with shrinking budgets and rising costs have ordinances calling for fines or even arrest warrants when library property isn't returned.

In Texas alone, the issue has cost libraries an estimated $18 million.

Jory Enck learned that the hard way. He was arrested for not returning a GED study guide that he checked out three years ago in the Central Texas community of Copperas Cove. Enck declined comment to The Associated Press, but he told the Killeen Daily Herald that he wouldn't set foot in a library again: "I think I will probably just purchase a book from Amazon."

A Texas state law took effect in September that defines the failure to return library books as theft. The law, which doesn't trump stricter community ordinances, mandates up to a $100 fine per offense.

Other states also call for fines or even arrest warrants in such cases, including Iowa — where an overdue-book offender was jailed for a week — Vermont and Maine.

Of course, the US Supreme Court ruled in Atwater v. City of Lago Vista that police can make arrests for fine only offenses, so the new statute won't prevent people for going to jail over library fines. But Grits in the past has suggested a rule which IMO should still apply: Nobody making arrests for overdue library books gets to complain about jail overcrowding.

No sex offenders at the junk yard?

At the Austin Statesman, Eric Dexheimer the other day reported on a case (Dec. 23) regarding whether the state should deny licensure to sex offenders as a general rule as opposed to when their offense relates to the nature of their work.

In a rare move, an Austin judge has recommended a man with a history as a sex offender keep his state-regulated job.

Wendell Adkins was convicted of sexual assault of a child in February. State regulators tried to take away his license to work as a used auto part recycler, court documents show, but Administrative Law Judge John Beeler advised them not to.

The state Department of Licensing and Regulation sought to revoke Adkins' license, but Beeler said they shouldn't:

State laws require that regulators demonstrate why a person’s crime will imperil public safety. According to court documents, the licensing agency claimed Adkins “might be a continuing threat to society and allowing him to maintain his license would create an environment that would allow him to repeat his crime.”

Yet when pressed for specifics, regulators conceded Adkins’ crime occurred only once and in his home. His sentence did not prevent him from having contact with other children.

Administrative law judges, who hear occupational licensing disputes, can only recommend a course of action. In his Dec. 9 decision, Beeler sided with Adkins, recommending he be allowed to keep his license.

“The profession of used auto parts recycling involves answering the telephone, greeting customers and determining what the customer needs at a facility commonly referred to as a ‘junk yard,’” he wrote. “Any connection between (Adkins’) conviction and his occupation is slight at best.”

Although Adkins’ “crime was of a serious nature,” the judge continued, the licensing agency must show how his job “might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved. (Yet) the ALJ (administrative law judge) can think of almost no occupation where a person would have less unsupervised access to minor females than at a used auto parts facility.”

The licensing and regulation department can decide whether to accept Beeler’s recommendations or appeal them to district court. Its next meeting is scheduled for Jan. 28.

Unless we're just going to say sex offenders should never be allowed to work at all - and that seems anathema to public safety - this knee-jerk reaction by the DLR should be rescinded. Would you want this fellow working at a day care? No. But at a junk yard? If he can't work there, where in heaven's name would he be allowed to work? Indeed, I'm not sure why a junk-yard employee whose job consists of "answering the telephone, greeting customers and determining what the customer needs" should require a license in the first place.

Wednesday, December 25, 2013

Daniel Villegas granted habeas relief, but not home for Christmas

After a year and a half delay since a trial court recommended he be freed and declared actually innocent, the Texas Court of Criminal Appeals agreed to grant habeas corpus relief to Daniel Villegas last week (see earlier Grits coverage). But they denied his actual innocence claim with only the barest of explanations in a terse ruling, instead basing relief on ineffective assistance of his trial counsel. The El Paso Times reported that the trial court won't have jurisdiction over the case until January 13, for reasons I don't completely understand, at which time he's expected to be released on bond until the DA decides whether to re-try the case. (Most observers consider that unlikely; a recanted, apparently coerced confession contradicted by other witnesses was the only evidence against him.) Until then, Villegas, who was sentenced to life in prison in 1995, is waiting in the county jail while he, his family and supporters await a belated Christmas present in January.

There were a handful of other interesting habeas corpus writs granted on the same hand down list.

Serena Staglin of Dallas County had a capital murder conviction overturned and reduced to a second degree felony, for which she will now face re-sentencing. See the court's ruling. Staglin pled guilty to a second degree felony to avoid the capital murder charge, but at sentencing continued to insist on her innocence, causing the court to throw out her plea deal and order the capital murder trial to go forward. She was convicted and sentenced to life imprisonment, but in her habeas writ argued that "she would have withdrawn her problematic testimony" if her lawyer had advised her of the consequences. The CCA reinstated the original plea deal and ordered her back to Dallas County for re-sentencing based on ineffective assistance of counsel. The sentence range for a second degree felony is 2-20 years; her capital murder sentence was life without parole.

Jamal Ahmed of Harris County was granted relief by the court after he was sentenced to four years in prison for a state jail felony, a crime for which the maximum sentence is only two years. Oops.

The CCA did grant one actual innocence claim last week after laboratory testing proved that Jerrell Bell, who was convicted in Harris County of possessing less than a gram of cocaine, in fact "did not possess a controlled substance." Seems like the crime lab should have caught that one on the front end, but at least his conviction was overturned.

Monday, December 23, 2013

Prosecutor misconduct, police deaths, prison heat, overcriminalization and more

Just to clear Grits' browser tabs before a Christmas break, here are a few items that caught my eye but haven't made it into individual blog posts:

Why the state bar went after Ken Anderson but not Charles Sebesta
If former Williamson County DA Ken Anderson was punished for prosecutorial misconduct for his withholding evidence in the Michael Morton case, why wasn't former Burleson County DA Charles Sebesta punished for even more egregious actions taken to secure a false conviction against Anthony Graves? Pam Colloff at Texas Monthly explored the issue and said the answer was the statute of limitations. Lisa Falkenberg at the Houston Chronicle followed up with a column and reached the same conclusion.

However, SB 825 by state Sen. John Whitmire changed the law this year so the four-year statute of limitations on Brady violations doesn't begin to toll in exoneration cases until after an innocent person is released. That should mean a new complaint against Sebesta wouldn't face the same statute of limitations bar. After the holiday, Grits will follow up with a post about new rules being promulgated by the Texas Supreme Court implementing SB 825 and concerns expressed by lawmakers and advocates. IANAL, but it's possible Sebesta could still face disciplinary action from the state bar if the complaint were re-filed.

Louisiana prison heat litigation could presage Texas ruling
The Texas Civil Rights Project, which is litigating over excessive heat in Texas prisons on behalf of inmates and correctional officers, has won similar federal litigation in Louisiana, where a judge ruled prisons must keep the "heat index" below 88 degrees Fahrenheit on death row. See coverage from the Austin Statesman and a copy of the judge's 102-page order. While it's clear Texas pols will never pay for cooling Texas' prisons of their own accord, in the end federal judges may leave them no choice. The 5th Circuit Court of Appeals, whose jurisdiction includes both Texas and Louisiana, already greenlighted Texas' essentially similar litigation.

You tell 'em, Paul
Writes Paul Kennedy at The Defense Rests, complaining that an acquitted defendant was sent back to jail before being released, "There are far too many judges sitting on the bench in Harris County who have the mistaken belief that they work in the district attorney's judicial division." In another recent post, Kennedy lamented that, "the prison population has grown by nearly 900% over the past 30 years while the population of Texas has only doubled. What's wrong with this picture?"

Texas law enforcement can't keep its hands out of people's pants
So says the Bayou Blog at the Beaumont Enterprise. Overstatement? Sure. But it does seem to have become a recurring theme.

On-duty law enforcement deaths lowest since WWII
As usual, most on-duty police deaths happen because of traffic accidents. In 42% of those, officers weren't wearing their seat belts. More evidence disputing the indisputable.

Federal prisons too costly, unsafe
According to a new DOJ inspector general's report, DOJ "is facing two interrelated crises in the federal prison system. The first is the continually increasing cost of incarceration, which, due to the current budget environment, is already having an impact on the Department’s other law enforcement priorities. The second is the safety and security of the federal prison system, which has been overcrowded for years and, absent significant action, will face even greater overcrowding in the years ahead." See a good summary of the report at Salon, which reported that “the number of inmates over the age of 65 has grown by almost a third, while the population under 30 fell by 12 percent. 'Elderly inmates are roughly two to three times more expensive to incarcerate than their younger counterparts,' according to the review.”

Federal overcriminalization
The same DOJ-OIG report questioned the rising tide of overcriminalization. "By one estimate, the number of federal criminal offenses grew by 30 percent between 1980 and 2004; indeed, there are now well over 4,000 offenses carrying criminal penalties in the United States Code. In addition, an estimated 10,000 to 100,000 federal regulations can be enforced criminally." That's a pretty broad guesstimate, don't you think?

FCC should regulate video visitation rates
After the FCC implemented new regulations regarding phone rates for the incarcerated, some prisons and jails are switching to fee based video visitation schemes which are still un-regulated, says the Prison Policy Initiative, which just submitted comments suggesting upgrades to federal rules.

'Santa was in prison and Jesus got the death penalty'

Concludes a terrific post from Solitary Watch on the topic, "Christians go to church to worship an executed savior and shop to commemorate an incarcerated saint. And most Americans give little thought to their 2 million countrymen who are spending this Christmas behind bars."

While most folks are familiar with Jesus' fateful run-in with the criminal justice system, "Less well known is the fact that Saint Nicholas, the early Christian saint who inspired Santa Claus, was once a prisoner, like one in every 100 Americans today. Though he was beloved for his kindness and generosity, Nicholas acquired sainthood not only by giving alms, but by performing a miracle that more or less amounted to a prison break."

TPPF: 'Texas should lead on restorative justice'

Derek Cohen of the Texas Public Policy Foundation has an interesting essay in the SA Express-News titled, "Texas should lead on restorative justice." The article opens:

As children, we learn two wrongs don't make a right. However, a wrong can often be made right. To accomplish this in the criminal justice system, we must prioritize the role of wronged individuals, rather than viewing the government as the victim.

Our legal tradition marginalizes the victim from the process. The government also has primary claim to all payments received from the offender, often put toward satisfying court fees and criminal fines before they are passed on to the victim. If the offender is incarcerated, a victim is likely to see little to no restitution. While incarceration may be necessary to incapacitate violent offenders and career property offenders, Texas puts many offenders in jail for offenses such as shoplifting and hot checks, where a restorative justice approach that emphasizes restitution could achieve better results for victims, taxpayers and offenders.

Restorative justice programs place the focus on the victim. The victim, in mediation with the offender, establishes an agreement involving an apology, restitution, and, in many cases, community service. These programs can begin before or after the trial phase, all with the consent of the victim. The mediation begins with the victim or a proxy acknowledging to the offender the harm caused. The offender accepts responsibility and begins working toward repayment.

Ideally, restorative justice programs are entered into as diversions, not as a formal sanction. This ensures “good faith” by the offender, as opposed to a ploy to avoid punishment.

Globally, victim-offender mediation programs have shown promise, particularly for nonviolent and first-time offenders. They decrease repeat offenses and increase the percentage of victims who receive restitution. These programs also cut costs over traditional forms of sentencing.

See also Cohen's recent report, "Reviving Restorative Justice: A Blueprint for Texas" (pdf). Go here for more background on restorative justice.

Sunday, December 22, 2013

Thinking through state-level regulation of automatic license plate readers

Since Lt. Governor David Dewhurst ordered the Texas Senate State Affairs Committee to research possible privacy-protecting legislation regarding geolocation data, among other electronic privacy topics, I was pleased recently to notice a law review article by Stephen Rushin of the Illinois College of Law titled "The Legislative Response to Mass Police Surveillance." He proposes model legislation for regulating what he calls "digitally efficient investigative technologies," especially Automatic License Plate Readers (ALPR) and surveillance cameras, the latter particularly when they're connected to facial recognition technology that allows police to individually identify people en masse.

To me, his paper is most useful for its analysis of license plate reader regulation. While surveillance cameras are used by many departments, very few (and none I know of in Texas) have them connected with facial recognition software, though one supposes that could be coming. According to a Denver Post article he cited, "[t]hirty-seven states currently load driver's license photographs into state databases, which are searchable using facial recognition software." For now, though, Grits thinks fusing the two issues would unnecessarily muddy the waters. As a legislative matter, I'd rather see the topics confronted separately.

The breathtaking efficiency of license plate readers (which can scan and cross-reference up to 1,800 plates per second) means they're already in a position to be abused in ways that aren't yet broadly true of facial-recognition equipped surveillance cameras. ALPR technology is already quite widespread. A 2009 survey conducted by the International Association of Police Chiefs found that 66% of agencies larger than 501 officers and 80% of agencies larger than 1,001 officers utilize ALPR technology, and 85% of chief at all agencies "plan to acquire more ALPR devices or increase use in the future."

Rushin describes in some detail how and why 20th century Fourth Amendment jurisprudence is ill-equipped to address highly efficient surveillance in public, arguments that are especially on point as they relate to present-day use of ALPR. Courts have long assumed citizens have no reasonable expectation of privacy regarding any activity occurring in public, but those norms were influenced in the past by the fact of limited police resources. Yes, police can theoretically tail a suspect anywhere, but limited resources mean they can't do it forever. OTOH, public surveillance based on location data from license plate readers (or as the NSA scandal demonstrated, cell phones) removes resource limits and makes mass surveillance not just possible but relatively inexpensive. Moreover, noted Rushin, "because the digitally efficient investigative state monitors the entire community, it collects information on illegal activity as well as innocuous behavior," meaning "it will invariably gather enormous amounts of data on innocent people."

While about half of departments retain license-plate reader information for six months for less, 28% of agencies either have no retention limits or by policy retain the information indefinitely. Given that it's possible to identify individuals using a very small number of location data points, this information over time becomes increasingly invasive to everyone's personal privacy. Such expansive powers breed potential for abuse. Wrote Rushin:

Psychological and historical evidence suggests that the availability of pervasive surveillance tools may facilitate law enforcement corruption. With the unregulated ability to monitor an entire community, law enforcement may be incentivized to conduct fishing expeditions that "exacerbate racism, stereotyping, or profiling." This elevates the risk of false positives and harms citizens' perceptions of procedural fairness. Thus, while the digitally efficient investigative state may be an important development for crime prevention, it also raises numerous privacy concerns.

The article outlines model state-level legislation to regulate these technologies and, while I don't agree with all of his choices, Rushin's discussion provides a useful framework for analyzing the decisions that must be made when implementing state-level regulation.

His model statute differentiates between "observational comparison" and "indiscriminate data collection." The former he defines as "the retention of locational or identifying information after an instantaneous cross-reference with a law enforcement database reveals reasonable suspicion of criminal wrongdoing." The latter involves retention of such data "without any suspicion of criminal wrongdoing" and is the type he suggests should be the focus of the bulk of state regulation.

Among states, Maine, Arkansas, New Hampshire, Vermont, and Utah have regulated ALPR tech through legislative measures. In New Jersey the Attorney General used constitutional authority to hand down directives regulating use of ALPR and limiting data collection, while Virginia has "passed relatively broad laws that regulate the retention of data by the government in all forms." New York has suggested model guidelines on the topic that are not prescriptive. Between them, these states provide examples of the various forms ALPR regulation might take.

All state legislatures regulating this tech put some restriction on data retention. Maine is the most restrictive, limiting retention to 21 days unless it specifically relates to a criminal investigation, while Vermont allows retention up to 18 months. (Rushin's model policy suggests one year, but given that half of departments surveyed have policies maxing out retention at six months or less, to me that seems too long.) New Jersey's Attorney General rules allow for retention for up to five years, which seems flat-out excessive.

Several states, like New Jersey, include limits on disclosure of personally identifying information "unless there is a legitimate and documented law enforcement reason for disclosing" it. In general, the longer states allow such data to be retained, the more important that aspect of regulating ALPR tech becomes. My preference would be to retain "indiscriminate" data for a shorter period, as in Maine, but either way there should be a requirement that the data only be used for legitimate investigative purposes.

Some states restrict sharing of ALPR data, though Rushin's model statute would allow it. He suggests limiting sharing to agencies that comply with minimum standards on retention, access, etc.. To me, at a minimum, states also should forbid sharing the data with commercial vendors. (For that matter, there's a gaping hole in his model statute in that it doesn't regulate the collection and sale of data by privately owned ALPRs, like those used by towing companies.)

Rushin also suggested rules limiting who may access ALPR data stored by police, requiring prior authorization as well as maintenance of logs documenting every user and every time they access the information. His model policy would require that stored data only be accessed only for legitimate law enforcement purposes, though IMO his limiting language could be stronger. He also suggests mandatory training in proper procedures for handling and accessing data, as well as discipline for police employees "who fail to follow policy parameters." The New York guidelines sensibly suggest "that departments establish a list of designated personnel who are authorized to access ALPR data."

Enforcement may be the most difficult nut to crack. In New Jersey, the AG can revoke an agency's authority to use ALPR if they don't comply with state rules. Arkansas provides for civil remedies if individuals can show harm, while Utah, New Hampshire and Maine criminalize misuse of ALPR data. Rushin's model statute would give the Attorney General of the state authority to file civil suits over misuse, but that structure wouldn't fit well with the historical role of the AG in Texas. I do like his suggestion that the AG perform and publish the results of regular compliance audits of ALPR use.

During the 83rd Texas Legislature, the Texas Electronic Privacy Coalition, of which your correspondent was a member, proposed two pieces of legislation: Requiring warrants for law enforcement to access cloud-based email and other content, which passed, and requiring warrants for them to access personal location data from cell phones and other electronic devices, which cleared the House by a 126-4 margin but did not make it through the Senate side. There have already been behind-the-scenes discussions among TXEPC members about whether regulating license-plate readers should be the next phase of regulating government tracking of geolocation data. Lt. Gov. Dewhurst's interim charges on electronic privacy gave such suggestions additional, recent momentum.

While I don't agree with every jot and tittle of Rushin's model statute - in particular he'd allow data retention for longer than I'd prefer and his enforcement mechanisms wouldn't be a great fit for Texas - I appreciate the good professor's efforts to think through the fundamental components such legislation might include. His article provides a fine starting point for considering how automatic license plate readers should be regulated at the state level.

See related Grits posts:

Friday, December 20, 2013

Research on pretrial detention, sentencing and recidivism

This research brief (pdf) from the Laura and John Arnold Foundation summarizes research on pretrial detention and included a number of important findings. For example:

A study, using data from state courts, found that defendants who were detained for the entire pretrial period were over four times more likely to be sentenced to jail and over three times more likely to be sentenced to prison than defendants who were released at some point pending trial. And their sentences were significantly longer – almost three times as long for defendants sentenced to jail, and more than twice as long for those sentenced to prison.

On recidivism, "pretrial detention is associated with long-term recidivism, particularly for low-risk defendants." According to the brief:

what if, rather than protecting society, the pretrial phase of the system is actually helping to create new repeat offenders?

That is the question raised by an LJAF-funded study that analyzed data on over 153,000 defendants booked into jail in Kentucky in 2009 and 2010. The analysis showed that low-risk defendants who were detained pretrial for more than 24 hours were more likely to commit new crimes not only while their cases were pending, but also years later. In addition, they were more likely to miss their day in court. Conversely, for high-risk defendants, there was no relationship between pretrial incarceration and increased crime. This suggests that high-risk defendants can be detained before trial without compromising, and in fact enhancing, public safety and the fair administration of justice.

Those are just highlights that jumped out at me. The whole thing (pdf) is well worth a read.

Debating drones

A few stories related to drone surveillance caught my eye and may interest Grits readers:

The city of Alpine in Presidio County rejected a proposal that would have made it one of six FAA testing sites for drones. Reported a local TV station:

Alpine was designated as a possible launch and recovery site last month but city council members voted against it.

Pilots in the area, including Kevin O'Cuillin, were worried about safety.

"It's a very dangerous situation. A drone can't see us. As we learned earlier, there is no air traffic control," O'Cuillin said.

Residents in the tri-county area do feel better. Oscar Cobos started a petition against drones in Alpine and talked with Presidio County about taking measures to prevent a testing site.

Meanwhile, down south, "The U.S. Border Patrol will evaluate the use of three helium-filled surveillance balloons along the Texas-Mexico border that were originally used by the Department of Defense in Iraq and Afghanistan," reported AP. See earlier Grits coverage of surveillance blimps on the Texas-Mexico border.

Finally, at Slate, Nabiha Syed discusses why the FBI thinks warrantless drone surveillance is legal. Regular readers know that, after the passage of HB 912 last session, state and local law enforcement in Texas must now get a warrant to use drone surveillance, and the new statute includes a super-tough exclusionary rule when agencies use them without one.

Christmas clemency trivializes pardon process

Regular readers know Grits is no fan of the modern practice of Christmas-time clemency, which I think trivializes presidential and gubernatorial pardon powers by treating them as some sort of "gift" as opposed to an ongoing duty of the executive branch. Unfortunately, disgracefully, that's how clemency is treated in 21st century America nearly across the board.

This year, Texas Gov. Rick Perry issued a dozen pardons, mostly for trivial offenses committed long ago. Only one pardon from this most recent batch was for an offense committed while he was in office. Go here for a tally of Perry's pardons prior this latest round.

President Barack Obama's 21 clemency grants this year were slightly more interesting, including eight commutations of drug sentences including two Texans whose life sentences were commuted to 20 and 21 years, respectively. These were sentences for which penalties were recently lowered by Congress to reduce the crack/cocaine disparity. That's all well and good, a fine symbolic exercise, and welcome news for the eight individuals involved. But there are thousands of people in federal prisons sentenced under the same guidelines. Grits still believes the president should use his pardon power to reduce those sentences across the board as a class rather than pick out a few, lucky individuals for symbolism's sake. (See more on Obama's latest clemency grants here, here and here.)

MORE: Doug Berman at Sentencing Law & Policy expressed similar mixed feelings about the important precedential value but limited scope of Obama's commutations:

though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.

Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."

RETROSPECTIVE: A few years ago, I authored a column in the Dallas Morning News titled "Holiday pardons send wrong message" that criticized the modern-day Christmas clemency practice. With the exception of Obama's eight commutations, you could swap out the trivial cases chosen for clemency this year, or virtually any year, with the ones described in that article without missing a beat. Find that 2010 column republished below the jump.

Radio Free Grits

Last week Grits did an hour-long radio interview with Thorne Dreyer from KOOP's Rag Radio show covering a variety of Texas criminal justice topics. For anyone interested in hearing it, it's now been uploaded here in mp3 form.

Thursday, December 19, 2013

'Burning Injustice'

The Dallas Observer's Brantley Hargrove has an excellent, extended piece out today with the same title as this post on the Sonia Cacy arson conviction, one of the cases that was reviewed by the state fire marshal for faulty forensics and found wanting. My employers at the Innocence Project of Texas are handling her post-conviction innocence claim, which includes a challenge of forensic evidence misinterpreted by an expert at trial to falsely claim there was accelerant (gasoline) used at the scene under Texas' new junk science writ. Fine reporting on a complex topic, read the whole thing.

MORE: From the Dallas Observer's Unfair Park blog, "Why the District Attorney's Arson Case Against Sonia Cacy Remains Weak."

Cornyn: Reform federal prisons based on Texas model

Texas' US Sen. John Cornyn this month introduced federal legislation, S. 1783, styled the Federal Prison Reform Act of 2013, that he says is modeled after state-level reforms in Texas. According to his press release on the topic, here's a summary of what the bill would do:

• Requires the Department of Justice to use existing funds to develop and implement recidivism reduction programming (drug rehabilitation, education, skills training, work programs, etc.) for 100% of eligible federal prisoners within 5 years. Ineligible prisoners include violent offenders, sex offenders, terrorists, child abusers, human traffickers, and repeat federal offenders.

• Requires the Attorney General to enter into partnership with non-profit and faith-based organizations to provide many of these programs at little or no cost to the taxpayer.

• Requires the use of existing resources to develop a federal post-conviction risk assessment tool that uses empirical data to classify all federal prisoners as (1) low-risk of recidivism; (2) medium risk of recidivism; or (3) high risk of recidivism, and allow for regular reassessments of each eligible prisoner over time.

• Allows prisoners who are classified as low-risk to earn up to 50% of their remaining sentence in home confinement or a halfway house, with earned time credit accruing at a rate of 30 days for every 30 days the prisoner is successfully completing recidivism reduction programming.

• Allows medium-risk and high-risk prisoners to earn time credits at a rate of 30% and 20% while they are successfully completing recidivism reduction programming, but does not allow them to cash in this credit until the risk assessment tool shows that they are a low-risk of recidivating.

• Reduces the need for new federal prison construction allocation by working to cap and reduce the number of incarcerated offenders by shifting prisoners near the end of their sentence to home confinement.

See the full text here. Haven't read the full thing myself, yet, so Grits may have more to say later on the topic, particularly if the legislation gains traction. Presently, Cornyn has three co-sponsors - Republican Senators Chuck Grassley, Orrin Hatch, and Mike Lee - and the bill has been referred to the Senate Judiciary Committee. Sounds good from the summary, but I'd feel more sanguine about its chances if the bill had bipartisan sponsorship - a key factor in passing Texas' 2007 reforms - and/or there was companion legislation in the House.

Wednesday, December 18, 2013

Dallas County most prolific source of TX death sentences since 2008

Dallas County under District Attorney Craig Watkins has displaced Harris County over the last six years as the death penalty capital of Texas. (UPDATE: More from the Unfair Park blog.) See a detailed press release on the topic below the jump:

Tuesday, December 17, 2013

San Antonio Four case, Texas junk science writ lauded in national press

Attorney Mike Ware and Elizabeth Ramirez/AP

A couple of national stories - from USA Today and Time magazine deserve Grits' readers attention related to the San Antonio Four case and Texas' new law allowing habeas corpus writs for convictions based on junk science. Mike Ware, pictured at right, who's a member of the Innocence Project of Texas board of directors, was lead attorney on the case. The new law was championed in the Texas Legislature by state Sen. John Whitmire and state Rep. Sylvester Turner. Here's a notable excerpt from the Time magazine story, in which your correspondent was quoted:

[I]t was unlikely the San Antonio Four would have walked free without the passage of the so-called “junk science” law earlier this year. Habeas writs based on new evidence are very difficult to win, according to legal experts, especially in Texas courts.

The seeds of change were sown in 1999, the first year of prison life for the San Antonio Four. That July, a drug task force raided a poor, black community in the Panhandle town of Tulia, sweeping up scores of residents. Perry later pardoned 35 defendants, casting a shadow on law enforcement practices in rural Texas. That same year, convicted rapist Timothy Cole died in prison, 14 years into a 25-year sentence. He had refused to admit guilt in exchange for parole, and was later exonerated by DNA evidence.

More people have been exonerated by DNA evidence in Texas than any other state, according to the National Innocence Project, which puts the state’s total 48 ahead of Illinois with 43 and New York with 27.

“The DNA exonerations have changed the terms of the debate for everyone,” says Scott Henson, policy director for the Innocence Project of Texas, which lobbied for the “junk science” law and several other similar measures.

Henson credits Republican lawmakers open to religious appeals for changing attitudes about criminal justice, beginning in 2003 when the party took control of both houses of the state legislature. Under GOP control, the statehouse reduced sentences for drug possession and ended the state’s prison-building boom.

“Over the past several cycles we had more and more religious conservatives coming into the legislature,” Henson says. “These are folks who hear these stories and tend to be moved by the DNA exonerees who come to the capitol. Hearing their stories — Christ was an innocent man hung on the Cross and here are these innocents — it resonated with them.”

Driverless cars and the future of law enforcement

The Texas Tribune has a story out on a new report (pdf) from UT-Austin's Center for Transportation Research that opens thusly: "Self-driving cars once seemed the stuff of science fiction. But with such projects from companies like Google already being showcased in Texas, lawmakers and transportation officials see an opportunity to use new technology to relieve congestion and improve safety in the rapidly growing state."

Volvo has suggested they'll have cars on the market by 2020 that are "impossible to crash"; the Tribune estimates driverless cars will be marketed to the public by 2025. And of course, it'll take some time to transition to the new tech and/or retrofit older vehicles. But a couple of decades from now, when the technology has been well-established, one can foresee a day when insurance companies may charge more or even refuse to cover people driving without such high-tech crash prevention technology.

From a traffic safety perspective, self-driving cars can't come soon enough as far as I'm concerned. When it finally happens, though, it's going to change law enforcement forever. For starters, no more drunk drivers, roadside breathalyzers, DWI cases in court, or for that matter $1,000 per year surcharges . Ethan Couch could be as drunk as he wanted in Google's driverless car and get home safely every time. But the even bigger change could be redirecting law enforcement away from the traffic stop as their primary enforcement strategy, since presumably vehicles would be programmed to obey the traffic laws. In that case, what would become of law enforcement's much-beloved pretext stop? As pointed out in this Grits post from January:

In 2008, according to the Bureau of Justice Statistics (pdf), 59.2% of all citizen contacts with police were traffic related. That year, police conducted searches at about 5% of traffic stops nationally, discovering contraband in about one out of every10 searches. While most drivers (84.5%) thought they were pulled over for good cause, an overwhelming majority of drivers searched, said BJS, said the search was "perceived as not legitimate." Police arrested 2.6% of drivers they stopped that year.

When police no longer have traffic enforcement as a pretext for getting around the Fourth Amendment, law enforcement in this country will lose what's become a primary crime fighting strategy. In that sense, Grits views the focus on traffic enforcement and pretext stops as an example of short-term, numbers-driven myopia. Just as fishermen fish where the fish are, law enforcement focuses on traffic enforcement not just to prevent crashes but also because that's the most cost-effective way to maximize arrests for other offenses, allowing police to find contraband when they otherwise would have no cause to stop, much less search average citizens. For now that makes sense if their goal is to maximize arrests. But police seeking to maximize arrests in the future may have to rely on different tactics that today they tend to downplay, like investigating and solving reported crime.

Overall, I'd view such a shift in law enforcement tactics and culture as a good thing.

On the negative side, the privacy implications are fairly profound because GPS tracking is pivotal to the functioning of driverless cars. There would need to be some way to ensure anonymity before driverless cars are unleashed en masse. That's not an insurmountable problem, but if driverless cars rolled out in large numbers without some sort of anonymizing feature, it would be a privacy concern on the scale of the NSA mining cell-phone location data.

There will be pros and cons to change but make no mistake: In the words of Sam Cooke, "Change is gonna come."

MORE: Here's a piece from Forbes on the massive amounts of data accumulated by new cars and potential privacy implications. The author also articulates some of the limits of anonymizing vehicle data.

70 years for stealing Christmas lights?

The KHOU headline reads "Woman sentenced to 70 years for stealing Christmas lights." Absurd. Texas needs to amend its habitual offender statute so that it's not triggered by low-level offenses.

Wags in the comment section snarked that her problem was she didn't suffer from "affluenza."

UPDATE/CORRECTION: Here's a story with a more complete account of her prior offenses. KHOU misreported the bit about her most recent conviction being for stealing Christmas lights. That episode was related to jurors at sentencing, but the 70 years was issued for stealing a weed whacker and a power washer from someone's garage.

MORE: From Paul Kennedy at The Defense Rests.

Monday, December 16, 2013

County Catch 22: Pay for lawyers or pay for incarceration

For a county paying through the nose to house jail inmates they can't afford, this seems like an odd and counter-productive choice; from the Waco Tribune-Herald (Dec. 14):

An ongoing McLennan County Sheriff’s Office investigation into indigent defense fraud resulted in an arrest Friday.

James Tyrone Johnson, 40, was arrested just after 1 p.m. on charges of falsifying or tampering with a government document, Chief Sheriff’s Deputy Matt Cawthon said.

The McLennan County Commissioner’s Court this year approved the creation of a new position to investigate false claims of indigence, because the county must provide an attorney for any defendant who cannot afford a lawyer.

Cawthon said this is just the first arrest and he expects the investigation, which has been led by Detective Eric Carrizales since early November, to uncover how much money the county is losing on false indigence claims.

I've not heard of other counties employing someone full-time to verify indigence applications - much less prosecuting people over false claims of indigence - but given that the McLennan County Commissioners Court has been chomping at the bit to reduce jail costs from pretrial detention, it's hard to see how this makes financial sense. They may save money on attorneys for the indigent but if those folks wait in jail longer while their relatives scrape together money for lawyers, or don't, it's going to cost a lot more than it saves: Almost the definition of penny wise and pound foolish. Grits would bet that county commissioners end up scratching the new position once it begins to rack up extra jail costs.

Judicial activism allows police to get away with illegal conduct

The Texas Court of Criminal Appeals last week adopted yet another court-created federal exception to the exclusionary rule in state-level search and seizure cases that allows evidence to be admitted in the face of clear police misconduct, even though Texas has a statutory exclusionary rule that - unlike the court-created federal version - includes no exceptions on its face. See Judge Elsa Alcala's opinion (pdf) on behalf of the majority, a concurrence (pdf) from Judge Tom Price, and a dissent (pdf) from Judge Lawrence Meyers.

The case - Wehrenberg v. State - involved a drug bust in Parker County in which officers received a tip from a confidential informant that the defendant and others were "fixing to" cook meth later that evening. Three or four hours later, after midnight, officers illegally entered Mr. Wehrenberg's residence "without a search warrant and without consent," handcuffing everyone inside and escorting them all into the front yard, conducting a "protective sweep" of the house. Then they held everyone outside in handcuffs for an hour and a half while one of the officers went to find a judge to secure a search warrant. The search warrant affidavit did not inform the judge that officers had already entered the premises and detained everyone found in the house. The judge issued a warrant, police found contraband, and charged Mr. Wehrenberg with a second degree felony, for which he was convicted.

Alcala and the majority overturned a ruling (pdf) by the Fort Worth Second Court of Appeals, which had held that the federal "independent source doctrine" conflicts with Texas' statutory exclusionary rule, applying an exception created by federal judges that is not contemplated in the plain text of Texas' statutory rule. They decided that the confidential informant's tip provided an "independent source" for the search warrant and therefore the evidence could come in to court.

Judge Meyers, though, wasn't buying it. In his dissent, he said the 3-4 hour delay was

completely inconsistent with the idea that the officers had to conduct an unwarranted entry because of exigent circumstances or to prevent destruction of evidence. Had such circumstances actually existed, the officers would have proceeded immediately to the residence rather than delaying for the number of hours that they did. There was more than enough time to secure a search warrant before the officers' intrusion into the premises, but they deliberately chose not to attempt to obtain it until after they had conducted the unlawful entry. Further, had the officers entered the home and found the occupants only baking cupcakes, the officers would not have bothered to then obtain the warrant at all. It was only after unlawfully entering and finding suspicious activity that they felt the need then to secure the warrant in order to cover their tracks and collect the evidence without the taint of their entry.

Meyers felt that it "seems unreasonable that the trial judge could not decipher that the officers involved were less than truthful when indicating they relied solely on the confidential informant in obtaining the search warrant." Judge Price, OTOH, noting that the trial judge had declined to issue findings of fact on the matter, even though the defendant requested them, said Meyers was substituting his judgment for the trial judge's and that the proper course was for the Fort Worth Court of Appeals, when considering the case on remand, to insist that the trial judge formally explain why he considered the officer's explanation credible.

In addition, Judge Meyers lamented, after this decision "search warrants may now be based on predictions of future crimes." After all, "The informant's tip that Appellant and his group were 'fixing to' cook methamphetamine that evening was a prediction of a future crime rather than an assertion that a crime was being or had been committed. Probable cause for a search warrant cannot be based on anticipation of a prospective crime" (citation omitted). This aspect of the ruling reminds me of the "Pre-Crime Division" in the movie Minority Report, in which police could arrest people based on what psychics predicted they would do in the future.

I'm not a lawyer so Grits is not qualified to estimate how much difference this new, judge-created exception will make on the ground. The basic idea of an independent source doctrine, the majority pointed out, isn't greatly different from the Court of Criminal Appeals' caselaw about "attenuating the taint" of an unlawful search. But the actions of police in the case don't pass the smell test. If their informant was so credible, why not go to the judge for a search warrant in the 3-4 hours before their illegal entry? The judge was available in the middle of the night, so there's little basis to believe they couldn't have gotten it earlier. And why conceal the fact that they'd already swept the house and detained the suspects in the search warrant application if everything was on the up and up?

In that light, whether or not the majority's hair-splitting legalisms are valid, the net effect of the ruling in this particular instance was to allow police to gloss over actions that everyone agrees were illegal conduct. Bottom line: In Texas, if citizens break the law, they go to jail. If police break the law, some activist judge will find or create a reason to excuse their misbehavior, which is precisely what happened in this case.

MORE: From The Dallas Observer's Unfair Park blog. AND MORE: From Raw Story. AND MORE: From Simple Justice. AND: From Huffington Post. AND: From TechDirt. AND: From RT.com. AND: From Opposing Views, and several more. This Grits scoop has seemingly gone viral. :)

Long delay by CCA in El Paso false confession case

The HuffPost Crime Blog had an article this week profiling a habeas corpus writ involving an alleged false confession case out of El Paso that the Court of Criminal Appeals has been sitting on for nearly a year and a half. The story opened:

Is Daniel Villegas innocent?

According to a district judge, at least 18 alibi witnesses, the jury foreman, one of his alleged shooting victims, the former mayor of El Paso and a local businessman who has turned into his most vocal advocate, the answer is an unequivocal yes.

Daniel Villegas, 36, is serving a life sentence for the shooting deaths of teens Armando "Mando" Lazo, 18, and Robert England, 17, in Northeast El Paso. He has been incarcerated since 1995.

Villegas, who was 16 at the time of the killings, confessed, but claimed immediately after he was separated from then-El Paso police Detective Al Marquez that the confession was aggressively coerced.

According to the HuffPost article:

In August 2012, Judge Medrano ruled that Villegas' confession was coerced -- something that Villegas communicated to juvenile officers immediately following his removal from the custody of Detective Marquez.

"For our justice system to work it must make two important promises to its citizens: A fundamentally fair trial and an accurate result," Judge Medrano told a courtroom. "If either of these two promises are not kept, our system loses its credibility, our citizens lose their faith and confidence in our court system, and eventually our decisions and laws become meaningless."

This summer, supporters of Daniel Villegas marched on the Capitol a year to the day of Medrano's ruling, hoping to get the Texas Court of Criminal Appeals to address Villegas' case. Supporters included former El Paso Mayor John Cook, who said he believed Villegas should be granted a new trial, as well as several former death row inmates who lived to be vindicated.

But the appellate court has not so much as set a hearing.

Ironically, Villegas rejected a plea bargain for a 10 year sentence in the double homicide because, he said, he didn't believe an innocent person could be convicted in America. That was nearly 20 years ago. Cases like these, Grits has repeatedly maintained, argue strongly for a requirement that police record interrogations, at least in the most serious cases. But in this case, even the version of the confession obtained by police doesn't match up with other facts in evidence, according to the judge's findings and published reports. I have no idea why the Court of Criminal Appeals has waited to long to confirm or reject the district judge's ruling, but it sure seems like it's time for them to get on the stick.

Grits for Breakfast