Former prosecutor, now a judge, discplined by state bar for role in texting scandal

More fallout from the Polk County case where Judge Elizabeth Coker was caught texting suggested questions for witnesses to the prosecution team in criminal cases during trial. In the latest episode,  then-prosecutor, now District Judge Kaycee Jones was the target of the state bar's public disapprobation, receiving one of the state bar's rare public reprimands for exchanging texts with Judge Coker and relaying them to the first chair. Via the Houston Chronicle ("State bar reprimands former prosecutor in texting scandal," May 27):

The Texas Bar Association has issued a public reprimand to state district Judge Kaycee Jones for her role in clandestine texting during a criminal trial while she was a prosecutor and before her election to the bench last year.

Jones, who oversees the 411th court in Polk, Trinity and San Jacinto counties, signed the agreed judgement citing her for "professional misconduct" just before she came in front of the bar's grievance panel for a hearing this month.

Jones, 39, was an assistant Polk County prosecutor for 11 years before becoming a judge in 2013. ...

The agreed judgment documented how Jones had received text messages from state district Judge Elizabeth Coker, while she was seated on the bench during a trial in a child injury case.

Jones, then an assistant prosecutor and observer during the trial, wrote down the message that suggested a line of questioning to bolster the prosecution's case and relayed it to the lead prosecutor.

The improper communication violated the "ex parte rule" which forbids judges, who must remain impartial arbiters, from communicating about a case unless both sides are present. ...

An ethics expert at South Texas College of Law, Jim Alfini, also said the state bar's action was a mere slap on the wrist for a serious violation.

"Jones was an admitted accomplice to a serious judicial ethics violation," he said. "They went very easy on her. I could imagine a much more severe sanction."

But judicial ethics expert and author Lillian Hardwick said Jones will not come through this unscathed as she will be required to disclose the reprimand on her bar record for the next 10 years.

Now that the state bar has publicly spoken, one wonders if the State Commission on Judicial Conduct will follow up to evaluate Judge Jones' fitness to serve on the bench?

Corrections committee to vet TDCJ programs

Tomorrow, Thursday, May 29, at noon, the Texas House Corrections Committee will hold a wide-ranging hearing in which they shall:

Study and review the correctional facilities and processes within Texas Department of Criminal Justice, Texas Board of Pardons and Paroles, and Texas Juvenile Justice Department with emphasis on efficiencies, effectiveness, and recidivism. Examine the existing programmatic approach per facility in the areas of the vocation, education, visitation, rehabilitation, health and mental health services, parole supervision, and reentry initiatives. Evaluate opportunities for partnerships between facilities and private industries to offer education, job training, and potential employment for offenders during incarceration, parole, and final release.

The Committee will not consider testimony for the Texas Juvenile Justice Department at this hearing and will consider this agency at a later date.

What are your thoughts related to those issues, Grits readers? I know many of y'all have opinions on TDCJ and parole board processes as they relate to "efficiencies, effectiveness, and recidivism," as well as the proper "programmatic approach ... in the areas of the vocation, education, visitation, rehabilitation, health and mental health services, parole supervision, and reentry initiatives." Be as specific as possible and use the comments to offer whatever opinions, information or suggestions the committee should consider on these topics.

At noon on Thursday you can watch the hearing live online here. If you're in Austin, the hearing will be in room E2.010 in the capitol.

Falsely accused by CPS

One "goes with the job" aspect of working with the Innocence Project of Texas is that, when you tell people you work on "innocence" issues, there is a certain proportion of the public who will begin to tell you about their CPS case. This story from Andrea Ball at the Austin Statesman ("Overturned child abuse rulings point to problems, advocates say," May 24) puts some data to the phenomenon:

Each year, the state overturns more than 1 out of 3 decisions challenged by people who CPS says have abused or neglected a child. Of the 1,146 cases appealed in 2013, 42 percent were reversed, up from 27 percent in 2009. By the time such rulings are overturned, however, they may already have had profound effects. CPS decisions are used in criminal and civil court cases. They can bar people from becoming foster parents. And, as in Hall’s case, they can play into custody disputes.

The 42 percent rate of reversal surprised and alarmed child advocates.

“I think it’s positive for me to see that CPS is actually admitting to wrongdoing and correcting it,” said Johana Scot, executive director of the Parent Guidance Center. “On the other hand, it’s a very scary statistic. That means there are probably a lot of wrongful substantiations, which is scary to me because it’s very harmful to the children and families.” ...

Child Protective Services investigates 160,000 neglect and abuse cases in Texas each year. Investigators confirm the allegations in about 40,000 of those cases.  ...

Fewer than 3 percent of the 40,000 confirmed abuse cases — the only type eligible for CPS review — are appealed each year.

Extrapolating roughly from these data - between 27 and 42 percent of appeals being overturned, assuming no one was falsely accused who didn't appeal - that conservatively puts the number of people falsely accused by CPS in Texas at between 300 and 500 per year. No data in the story to indicate what proportion may have caught criminal cases as part of that process, but I bet it's not insignificant. This is an agency not known for subtlety in its overreach.

Just a few hundred people per year from every corner of the state falsely accused by the government of harming their children. Nothing could go dodgy in that scenario, could it?

Hot in Louisiana: Federal suit may set precedent for Texas

A federal judge has ruled in favor of plaintiffs from death row in Louisiana, calling excessive heat there "cruel and unusual" punishment and appointing a "special master" to supervise compliance with his court order, which includes installation of air conditioning as well as "providing chests filled with ice and allowing inmates once-daily cold showers." I'm sure Texas prison officials are closely watching our neighbor's reaction and wondering whether the hottest Texas prisons may be next.

Louisiana, like Texas, lies in the the Fifth Circuit Court of Appeals. So if the Fifth Circuit greenlights a heat mitigation order there, it could signal which way Texas' pivotal litigation may go. The state of Louisiana has already announced it would appeal: “Given the significant issues involved in this litigation which have far-reaching effects on many correctional institutions in Louisiana, Texas and Mississippi, the Department intends to seek a thorough review of the trial court’s decision with the U.S. Fifth Circuit Court of Appeals.” Count on the state of Texas at some point to submit amici, which should be interesting to read.

Two years ago, the Fifth Circuit ruled that Texas prisoners could sue over excessive heat. This Louisiana case may tell us the extent to which the court is willing to endorse more coercive remedies to limit heat in prisons under its jurisdiction. Bottom line: If this judgment and precedent is allowed to stand, it's not difficult to chart a path on which Texas could find itself facing federal court orders to mitigate heat in many prison units, not just death row.

As a practical matter, a federal court order is the only way politically Texas prisons could ever be forced to install air conditioning, even in the hottest units, or pay for more labor-intensive heat mitigation measures that cost the state money. If a federal court were to issue such an order, there would be much bipartisan weeping and gnashing of teeth among the political classes about the relative comfort of prisoners vs. the poor, soldiers in Afghanistan, etc., and a great deal of post hoc grumbling about the misplaced priorities of liberalism and the federal government. But the state really would have no choice, in the end, but to pony up and comply.

Time will tell. I've been surprised at the Fifth Circuit's reaction in recent years to heat litigation. They have a reputation as generally unfriendly both to prisoners and civil rights litigation. So if they allow district judges in Louisiana to order heat mitigation at the state level, Texas prison officials and the legislature had better start reaching for their pocketbooks. There's a good chance the hottest Texas prisons won't be far behind.

See related Grits posts:

• Report: 'Deadly heat in Texas prisons'
• Union rep: TDCJ focuses on pigs' comfort over staff, inmates
• Climate-controlled hogs' barn spurred union participation in prisoner heat suit
• TDCJ guard union joins inmate litigation over excessive heat
• Saving TDCJ's bacon: Cool pigs vs. overheated inmates
• TDCJ's pigs to get air conditioning but not prisoners
• More litigation over heat in Texas prisons now that 5th Circuit cleared the way
• 5th Circuit: Inmates can sue TDCJ over excessive heat
• NY Times: Heat a death sentence for ten Texas prisoners last summer
• More litigation over summer heat in Texas prisons: Wrongful death suit filed
• Appellate judge: 'These guys are sitting in and oven ... and no one gives a darn'
• Lack of AC chilling for TDCJ staffing efforts

Probation for ex-trooper charged over roadside cavity searches

Via the Dallas News ("Former DPS trooper gets probation, fine for illegal body cavity searches," May 23), we learn of a dissatisfyingly ambiguous outcome from the infamous 2012 episode when a Texas state trooper performed roadside cavity searches caught on dashcam video:

A former state trooper was sentenced to probation and fined Friday for performing illegal roadside body cavity searches on two women that were described as “humiliating and shamefully embarrassing.”

State District Judge Dominique Collins sentenced Kelly Helleson, 34, at the recommendation of Dallas County prosecutors after Helleson pleaded guilty to two counts of official oppression. She received a year in jail — which was suspended — and instead will serve two years of supervised probation. She must also pay a $2,000 fine. Two counts of sexual assault against Helleson were dropped.

The convictions stem from a July 13, 2012, traffic stop on the side of State Highway 161 near Irving. Angel Dobbs and her niece Ashley Dobbs were pulled over after state trooper David Farrell said he saw the women throw something out the window, according to the complaint.

Farrell called Helleson to perform the searches, which the women said she did using the same latex glove and in full view of passing motorists. The searches were captured on dashboard video camera.
 But Russell Wilson, special fields bureau chief with the [Dallas] district attorney’s office, said Helleson confessed the crime to authorities. ...

Following the incident, the Department of Public Safety changed its policy to prohibit troopers from conducting body cavity searches without search warrants.

Helleson, a state trooper for 10 years, was fired after the search and lost her peace officer’s license. Her attorney, Bob Baskett, said Friday that she has no desire to get back into law enforcement “after this crap.” ...

Farrell was indicted but later acquitted on a charge of theft by a public servant for allegedly stealing a bottle of hydrocodone pills during the search of the Dobbses’ car. DPS officials said last year that he would return to “full-duty status.”

Last June, the two victims received a $185,000 settlement from the state in a federal civil rights lawsuit. After Friday’s hearing, Angel Dobbs, 39, said she was disappointed with Helleson’s probation sentence.

Considering prosecutors walked in the door seeking felony sexual assault charges, walking out with probation and a $2,000 fine for a misdemeanor is a significant step-down, despite all the self-congratulatory rhetoric from the Dallas DA's office. Perhaps, given that DPS changed its policies after this and similar episodes to eliminate roadside cavity searches, Hellerson's claims that she was following DPS training carried some substance. We won't learn those details from the legal process, though, since the case resulted in a plea deal rather than a jury trial. Lots of records are newly available about the case under the Public Information Act now that the criminal cases are finished. This'd be a good spot for journalism to pick up the ball.

Exonerating video surfaces midway through Hays County murder trial

The Austin Statesman reported ("Exonerating video surfaces midway through Hays County murder trial," May 23) on a dramatic turn of events in a Hays County murder trial, in which the prosecution handed over exonerating video to the defense four days into the jury trial, though it had been in the state's possession, supposedly never viewed, for 15 months. Wrote Esther Robards-Forbes:

Brelyn Sorrells was halfway through his murder trial, meeting with his attorney at the Hays County Jail, when they got a call from the prosecution.

A video had been found. ...

Sorrells, 21, knew that video, recorded at a party where he was accused of stabbing 20-year-old Arthur Martinez to death, was the key to his exoneration. It had been self-defense, he said.

The video had sat in evidence, unwatched for more than 15 months ... because the digital file had a time stamp indicating it was shot hours after the fight had happened. Investigators had not realized that it was stamped in Greenwich Mean Time, not Central Standard Time, a possible glitch in the phone or the data, police said.

“Nobody viewed the video because it was thought that it was not relevant to the trial,” Williams said.

According to court documents, the video was part of the large batch of evidence turned over to the defense in May 2013. But Payan said the video wasn’t part of the evidence he received.

It was at the end of the fourth day of the trial, May 15, that prosecutors alerted Payan to the video. It was the same day prosecutors had discovered it actually showed the fight in question. It is unclear why or how the video came to light. Officials with the DA’s office have refused to comment beyond an official statement that was issued this week.

“In this case, the main issue was always whether or not the defendant acted in self-defense,” the statement said. “A grand jury heard evidence and determined that there was probable cause to indict the case.”

The grand jury indicted Sorrells in May 2013, before the video came to light. ...

A [petit] jury took nine hours to find him not guilty. They told defense attorneys that the video had significantly contributed to their decision.

 Better late than never, I suppose, but wow! Talk about your eleventh hour Brady disclosures!

Publishing jail poetry

I don't think I've ever plugged a Kickstarter campaign on Grits, but a friend of the blog suggested this one by a young creative writing instructor named Kelsey Erin Shipman who volunteers to teach poetry classes at the Travis County jail: She needs $500 to publish a limited edition of inmate poetry from her class and looks to be a third of the way there. A worthwhile cause. Looking at her page, though, then listening to her video, I think she buried her lede. The pitch could have been truncated to these three themes:

• "If any part of you believes that inmates deserve to be rehabilitated and that it's healthy for society to rehabilitate its criminals, you should know it's not happening on the institutional level."
• "I listen to their stories, I try to teach them how to turn their suffering, their pain, their confusion into works of art. And that's beautiful."
• "Teaching in jail has reminded me over and over again who art is for: It's for the survivors."

If you're the kind of person who supports such things, support it. It's a small project but would bolster a fledgling program in innumerable ways.

The folks on the ground doing educational programs or jail ministry are few and far between, with the handful of writing instructors among them particularly close to my heart. Those of us not doing that work ought to help 'em when we can. Throw her a bone, Grits readers.

UPDATE (6/24): Looks like y'all pushed this project over the top! According to the kickstarter page, her project has topped $550 in pledges, up from $170 yesterday morning. Though I've no doubt they could still use a few extra bucks if anyone were so inclined, that means her publishing project should now be fully funded. Thank you, folks, and good luck to Ms. Shipman.

FINAL UPDATE (6/26): It looks like the final tally was $821 pledged, nearly five times the total when I published this post. Thanks, Grits readers, for supporting this young lady's work.

Roundup: Naming the new Travis DA's office, and other stories

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

Troopers association litigation fails
A judge dismissed the civil suit against the state from the Texas State Troopers Association, which faces penalties and the removal of boardmembers over an illegal telemarketing scheme. Reported the Austin Statesman, "In its lawsuit, the troopers association accused the attorney general’s office of trying to bully the group into signing an agreement that called for fines and the resignation of executive director Claude Hart and board members Lee Johnson, Anne Johnson and Herschel Henderson. Those leaders would also be banned from working for or volunteering with any Texas group that purports to benefit public safety, the document states." Further, "According to the organization’s 2012 tax forms, the group raised more than $3.2 million and paid $2.5 million of it to a telemarketing firm. The association’s largest expense, $311,000, was for salaries. Other costs included $76,000 for lobbying and $35,000 in benefits to members." For long-time readers, this is a different group from the Texas Highway Patrol Association, though the economics of their telemarketing program operated on the same model.

Audit draft criticizes Dallas probation on technical violations
Reported the Dallas Morning News, a leaked TDCJ-CJAD audit of the Dallas County probation department found that "officers did not follow court or department policies more than two out of three times when handling 'technical violations' by probationers, according to a preliminary draft of an audit" obtained by the paper. But "Michael Noyes, the head of Dallas County adult probation, said he doesn’t believe the numbers in the state’s draft report are accurate. He said auditors from the Texas Department of Criminal Justice may have confused strict policies that apply to probationers only in certain court programs and applied them to all probationers."

CCA: New punishment hearing because prosecutor failed to turn over snitch jacket
The Texas Court of Criminal Appeals this week ordered a new punishment hearing in a capital  murder case because the prosecution did not reveal that a confidential informant planted a shank in the defendant's cell that was used to argue his "future dangerousness." Remarkably, "Following the evidentiary hearing, the trial court found that the State did not fail to produce exculpatory evidence or knowingly present false testimony. However, the trial court also found that [the informant] fashioned and planted the shank as described. Therefore the evidence that applicant possessed the shank was false. The trial court also found that this evidence was central to the State’s future dangerousness case and to the jury’s decision at punishment." The court deferred to those findings, including the declaration prosecution "did not fail to produce exculpatory evidence," even though the exculpatory evidence they failed to produce was the basis for a new punishment hearing.

Out of control: A substantive claim
Note to prosecutors: Before accusing someone of committing fraud to obtain a controlled substance, first make sure the substances you're after are, you know, controlled. In another CCA habeas writ granted this week, the "Applicant was convicted of attempting to obtain a controlled substance by prescription fraud and was sentenced to two years’ imprisonment." Her prevailing habeas claim: "there is no evidence that Naproxen is a controlled substance." The trial court agreed, the CCA agreed, bada bing, bada boom, relief granted. This sounds like another episode where lengthy crime lab wait times may have ended up coercing a plea from someone for a crime they didn't commit.

All in the family bank robbing
From the "only in Texas" file, and Texas Monthly's Skip Hollandsworth.

Dumb: Life in prison for pot brownies?
With a possible first-degree felony sentence for drug possession of 5-99 years, it's possible, if unlikely, for a 19-year old defendant to spend the rest of their life in prison on a weight-based drug charge, a possibility touted in KEYE-TV's report on a Williamson County case. But how ridiculous is it for authorities to include the brownies in calculating the weight of the controlled substance (hashish) being used to bump that charge up to first-degree felony levels? Really?

If the feds can do it ...
Now that DOJ has told the FBI, DEA, and other federal investigators to begin recording custodial interrogations, shouldn't the Texas Legislature follow suit and require it for law enforcement agencies here? The Lege considered such legislation in 2013 and, next spring will have an opportunity to polish off this last, unimplemented recommendation from the Timothy Cole Advisory Panel on Wrongful Convictions.

The era of mass incarceration in America is not over
Regular readers know we're seeing declining incarceration rates in Texas, like many other large states, but most American states have seen incarceration increase over the last decade, judging from these data.

Naming the new Travis DA's office
Travis County is trying to decide an eponym for a new building that will house the District Attorney's office. Some are saying "Ronnie Earle," but I think it should be named after Richard Danziger. Or perhaps, in light of the current DA's recent history, the "Happy Hour Tower." Offer up your own suggestions in the comments.

High probation fees, bail as a 'poverty penalty'

Good series from NPR this week on the high cost of probation fees and laws allowing defendants to be billed for supervision costs. The series documents ways that excessive fees can hinder reentry and rehabilitation for otherwise successful probationers, imposing a "poverty penalty." See:

• As court fees rise, poor are paying the price
• Unpaid court fees land the poor in 21st century Debtors Prisons
• Supreme Court ruling not enough to prevent Debtors Prisons
• Big fees for the Big Easy's poorest defendants
• Court fees drive many poor defendants underground
• State by state court fees

And speaking of a "poverty penalty," check out this item from Huffington Post, "Posting bail for the poorest of the poor," describing a charity in the Bronx that helps poor people make bail. I've never heard of anybody doing that in Texas; it's an interesting role for a nonprofit to play, don't you think?

Of kingpins, pirates and privateers: The application of civil asset forfeiture to alleged college-student pot dealers

When Texas first created asset forfeiture law it was ostensibly to go after "kingpins," if one were to believe proponents' rhetoric. Law enforcement, though, has moved well beyond kingpins when it comes to asset seizure, as evidenced by this May 16 story from the Fort Worth Star-Telegram, reported in part by TCU journalism students, about the aftermath of an 23-person bust of an alleged student pot sales ring at TCU in 2012. From there, the process devolved into an ongoing, low-level property grab by local authorities:

The criminal cases would end in a fizzle — Anderson got 48 months’ probation for two counts of delivery of marijuana, and the others all received probation, often followed by deferred adjudication, or a lesser punishment.

Still, as Anderson and other former students would find, the economic penalties of the drug arrests could far outweigh the results of the criminal cases.

The haul seized by police through civil asset forfeiture was substantial: $46,243 in cash; 15 cars, trucks and SUVs valued at more than $250,000; and nine weapons, according to an after-action report released five days after the slew of arrests.

Other assets picked up by police included iPhones, iPads, MacBooks and an assortment of cellphones — 36 items totaling around $17,650.

The items were seized before formal charges were filed and months before any convictions. Under state law, police have the power to seize items that might have been used in a crime or paid for with money from a crime.

A person doesn’t have to be convicted, or even formally charged, for police to take their assets and for the county to keep them.

“They make the arrest and ask questions later,” said Tim Evans, the attorney for Matthew Davis, one of the TCU students arrested.

Read more here: http://www.star-telegram.com/2014/05/16/5823680/retrieving-property-challenging.html?rh=1#storylink=cpy

If I were an artist, I'd illustrate this story with an image of Lady Justice peeking out from under her blindfold to assess the relative wealth of defendants, willing if need be to lay down her sword to better fill her robes with gold from their pockets. Her scales have been reduced from a metaphor for equality under the law to a mere merchant's tool for weighing the students' coinage.

Good coverage; read the whole thing. See also this interesting, related item analyzing the process of auctioning off forfeited items. Eric Nicholson at the Dallas Observer's Unfair Park blog summed the issue up well with this conclusion:

Here's betting Fort Worth police seize this type of property in lower-profile drug cases all the time; why should the college kids be any different?

The potentially concerning thing is how the outcome is arrived at. These are civil seizures, meaning that defendants don't get the due process protections they do in criminal cases and that the burden of proof for law enforcement is much lower. Indeed, prosecutors need not even secure a conviction in order to keep someone's property. It turns the presumption of innocence on its head.

One is reminded of the important distinction between a pirate and a privateer.

TCLE form fails to track gypsy cops fired for misconduct

The Austin Statesman over the weekend published a fine investigative piece by Eric Dexheimer and Tony Plohetski about the problem of "gypsy cops" fired from one police department and later rehired at other agencies ("Town's police force highlights struggle to track cops with a history," May 17). Reported the paper:

Despite a number of efforts by regulators to restrict the practice, Texas police officers with histories of misconduct often move easily from department to department.

At the heart of the failure is a piece of paper called the F-5, which must be filled out by chiefs every time an officer leaves a department and placed on file at the Texas Commission on Law Enforcement. Required in Texas since 2005, the confidential form requires chiefs to label departing officers’ performance as “honorable,” “general” or “dishonorable.”

Yet changes over the years have created incentives and opportunities for the document to be manipulated so as to obscure an officer’s true performance. The result: Regulators say the F-5 has turned into an essentially worthless piece of paper.

“You can no longer trust it to tell you what it’s suppose to,” said Kim Vickers, the state commission’s executive director. “The system is broken.”

It is also a reminder of how difficult it can be to remove bad police from the profession generally. Teachers, doctors and other professionals can all lose their state licenses for unprofessional behavior. Texas laws covering police officers, by comparison, contain no blanket provision for suspending or revoking an officer’s license for misconduct — making it virtually impossible to take away an officer’s license for anything short of a felony conviction.

The Legislature has created a system that lets bad cops easily get their discharges upgraded and created disincentives for departments to accurately describe reasons for dismissal on the state's F-5 form. Again, from the Statesman:

“Are there small town chiefs not checking ‘dishonorable’ when they should? Absolutely,” said Christopher Davis, who was the top lawyer at the Texas Commission on Law Enforcement until retiring two years ago.

[TCLE Chief Kim] Vickers said he knew of a half-dozen cases in the past year in which a chief agreed to let an officer resign in lieu of firing as long as he agreed not to seek a new law enforcement position in nearby jurisdictions. In other instances, Vickers said, police chiefs simply don’t show up to contest dishonorable appeals, which means the case is automatically decided in favor of officers.

The number of “honorable” discharges across the state has climbed steadily. In 2009, 74 percent of the 15,000 discharge reports issued were “honorable,” with about 22 percent of the departing officers receiving a “general” discharge.

By last year, 85 percent of the 16,500 departing officers leaving a department received “honorable” discharges. Barely 11 percent were labeled “general.” The number of dishonorable discharges has stayed flat.

“It’s not that there are not problem officers out there,” Vickers said. Rather, more and more are being given upgraded classifications, making it difficult for hiring departments to distinguish good cops from bad ones.

The minimalist F-5 form and the failure of departments to apply dishonorable discharges to fired cops is surely a problem. And it's exacerbated by the statute closing records about police officer discipline in civil service cities like Austin. Those issues are easier to track in non-civil service cities like Dallas where the open records act applies.

See related Grits coverage.

PREA deadline passes: Perry tells Holder Texas won't comply

Yesterday was Texas' deadline to provide assurances to the US Department of Justice that it would comply with the federal Prison Rape Elimination Act. Today, Gov. Perry sent this letter to US Attorney General Eric Holder restating his earlier declaration that Texas would not accede to new federal rules. His latest missive had a much less defiant tone than the first one, but reiterated the state's refusal to fully enact PREA standards. Wrote Perry:

No one disputes PREA's good intentions, but the standards as currently written do not adequately allow for differences among states' juvenile laws, impose substantial financial burdens on communities and set unrealistic compliance dates, Texas has shared our successes and challenges with your office and has sought assistance in our efforts to seek compliance. Unfortunately, our legitimate concerns regarding the unfeasible standards on cross-gender viewing, youthful offenders and staffing ratios have not been properly addressed by DOJ.

Some of this still strikes me as odd because correspondence between TDCJ and a consultant hired to advise the state on PREA compliance did not include any concern that the agency "would be forced to deny female officers job assignments and promotion opportunities," as the letter suggests. Hard to tell where that's coming from. I don't think it's true.

A more legitimate concern stems from the conflict created by Texas' outlier status of classifying 17 year olds as adult offenders under criminal law (we're one of only 10 states that does so). Perry's letter acknowledges that the simplest solution may be to change the age of adult criminal culpability, but notes that the earliest that could happen is next year:

In addition, PREA defines youthful offenders as those under the age of 18 and maintains that offenders be separated from the adult inmate population, The federal Juvenile Justice and Delinquency Prevention Act (JJDP Act) also requires that juvenile inmates be separated from adult inmates, but defines adult inmates as those who have reached the age of full criminal responsibility under applicable state law, which in Texas is 17. This creates a conflict that would require Texas to either violate the JJDP Act by placing adult 17-year-old offenders in juvenile facilities or violate PREA by keeping 17-year-old adult offenders with other adult offenders aged 18 or older. This could require the construction of new correctional facilities or the extensive modification of existing facilities in order to house only offenders who are 17 years old, An alternative solution would be changing Texas law to change the definition of full age of responsibility to 18. But since our legislature meets only in odd numbered years, the soonest Texas could possibly meet this requirement would be in 2015 and only then if the Texas Legislature changes the law.

Of course, that's not entirely accurate since the Texas governor has authority to call the Legislature into a special session whenever he wants to address any specific issue he chooses. But as a practical matter, he's probably right that the best solution would be for the Lege in 2015 to raise the age of responsibility to 18 to match federal law. That would resolve quite a few situations where that conflict causes problems, not just regarding PREA compliance. The Speaker of the House issued an "interim charge" to the House Criminal Jurisprudence Committee to study that proposal, and this is another strong argument for making the switch.

Perry also lamented that, "the cost to implement the mandated staffing ratios within juvenile facilities would be unsustainable for many counties with limited operating budgets. Appropriate staffing ratios should be determined by each state based on recommendations from professionals with operational knowledge." But this, too, strikes me as a strange complaint. For starters, the juvenile staffing ratios under PREA that Perry's concerned about (requiring one JCO per 8 youth instead of 12) don't go into effect until 2017. More to the point, local juvenile detention facilities in Texas are not "under executive control" and Perry is not required to certify their compliance. While local facilities may be subject to Sec. 1983 civil rights litigation if they do not comply, that's true whether Perry certifies the state's PREA compliance or not.

Bottom line: Texas will lose some grant money because of Perry's recalcitrance, though his gubernatorial successor will be the one affected, not him. And in the medium to long run, non-compliant state and local facilities may find themselves dealing with these issues in federal civil rights litigation. At that point, the costs of obeying PREA on the front end may, in retrospect, look like a bargain.

See related Grits posts:

• More on Texas' PREA compliance
• Potential civil liability for failing to comply with Prison Rape Elimination Act
• Radio news questions Perry PREA stance in light of consultant's report
• Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'
• Who is advising Rick Perry on prison rape?
• Perry: Texas won't comply with federal Prison Rape Elimination Act

Roundup: Rogue cops and DWI news

Here are a few items that merit Grits readers' attention but haven't made it into independent posts this week:

Dallas settles another six-figure police lawsuit
This time for a no-knock raid resulting in excessive force. DPD thought the plaintiff was trafficking cocaine for a Mexican drug cartel, but all they found was .1 grams of cocaine and a sawed off shotgun; the defendant was never charged with a crime. This makes eleven six-figure lawsuits settled by DPD since 2011 totaling more than $6 million.

Ex-trooper, sheriff's deputy, constable candidate worked more than a decade as drug courier
In McAllen, "A former Texas state trooper and [Hidalgo County] sheriff's deputy pleaded guilty to money laundering Monday, two years after a traffic stop revealed more than $1 million in the trunk of his car." According to AP, "Robert "Bobby" Maldonado, who was running for constable in Hidalgo County at the time of his February 2012 arrest in Victoria County, spent about 12 years working as a courier bringing drug proceeds back to the Texas-Mexico border from the U.S. interior, according to prosecutors."

Man paralyzed after alleged excessive force by Round Rock PD
Reported the Killeen Daily Herald, "On March 21, a Florence resident was sitting in his car charging his phone when six Round Rock police officers tried to arrest him, according to court documents. Intoxicated and outside of Rick’s Cabaret in Round Rock, William Slade Sullivan, 44, now is a quadriplegic after the officers’ “extremely aggressive use of force,” one of his lawyers said."

'Fracking and the flow of drugs'
National Journal reports that the South Texas fracking boom has created new opportunities for drug smugglers thanks to massive, increased truck traffic north-bound from Mexico.

DWI dominates Harris County probation rolls
Reported the Houston Chronicle (May 11), "In 2013, about 13,000 people - half of all Harris County probationers - were on supervision for a misdemeanor driving-while-intoxicated conviction. Thousands more crowd county jails." Despite that, "A 2009 report found that 60 percent of traffic deaths in Harris County were alcohol related - twice the national average." Further, "Harris County has the highest rate of alcohol-related traffic fatalities among large counties in Texas and, some years, the nation." Grits believes that's because they're focused on an enforcement-only approach and have utterly failed to confront potential structural solutions to DWI that would get more bang for the buck.

The Fourth Amendment and mandatory blood draws
After the US Supreme Court imposed Fourth Amendment warrant requirements on mandatory blood draws in McNeely v. Missouri, writes Houston attorney Paul Kennedy, Texas' implied consent laws related to mandatory blood draws were called into question "when the Supreme Court overturned a conviction in Aviles v. State and sent the case back down to Texas for a new trial in line with the holding in McNeely." The San Antonio Court of Appeals "held that neither the implied consent law, the mandatory blood draw provision of the Transportation Code nor the dissipation of alcohol justified a warrantless blood draw without a showing that an established exception to the warrant requirement existed."

In April, Texas' Seventh Court of Appeals, agreed in a case called Sutherland v. State, which according to the prosecutors' association held that, "By vacating and remanding a case from the San Antonio court of appeals, Aviles v. State, 385 S.W.3d 110, the United States Supreme Court has rejected any position that would treat Transportation Code §724.012(b)(3)(B) as an exception to the Fourth Amendment. To the extent that §724.012(b)(3)(B) can be read to permit a warrantless seizure of a suspect’s blood without exigent circumstances or consent, it violates the Fourth Amendment’s warrant requirement." Though TDCAA notes that the legal status of Texas' mandatory blood draws remains in doubt and "the State may ultimately lose the implied-consent argument under application or extension of Missouri v. McNeely," they advised prosecutors, "Do not spend too much time worrying about this decision. The dispute will be decided soon enough by a higher court (probably the Court of Criminal Appeals), and that court will take longer than one paragraph to analyze the issue."

'Putting cameras on police officers is an idea whose time has come'
A Washington Post editorial with the same title as this subhed lays out the central conundrum facing policymakers who want to install bodycams as a standard part of police officer gear: "Some thorny details need to be clarified before D.C. police go ahead with a pilot project. Chief among them is how and when the cameras are activated. If individual officers are allowed complete discretion, the cameras will be of little use; but if the cameras are rolling for an officer’s entire shift, problems will arise involving privacy and good policing. (Some informants will get cold feet if they know they’re being filmed, and victims of some crimes may be inhibited from providing testimony.)"

TDCJ issued "misinformation," prosecutors failed to disclose evidence re: capital defendant's mental retardation

The Fifth Circuit Court of Appeals held on May 13 that TDCJ withheld mitigation evidence that supported capital defendant Robert James Campbell's claims of mental retardation (an "Atkins" claim, in legal parlance), ordering a stay of his execution. The federal court ordered an adversarial hearing to determine whether the withheld evidence supported the defendant's claims of mental retardation.

The week before, the Texas Court of Criminal had denied Campbell's writ on the same topics, but a dissent by Judge Elsa Alcala (joined by Judges Price and Cochran) suggested that, "Had TDCJ not misinformed former habeas counsel regarding applicant's available IQ test scores, then this Court would have had IQ testing supportive of applicant's mental retardation claim ... and applicant would have been able to make out a prima facie case of mental retardation."

"Furthermore," wrote Alcala, "although there is nothing to suggest any impropriety of any kind by it, the Harris County District Attorney's Office was in possession of material evidence about applicant's possible, if not probable, mental retardation at the time that this Court decided his Atkins claim in 2003, but that information was not brought forward to this Court either by applicant's former habeas attorney or by the prosecution."

I must say, it's hard to understand the assertion that there's "nothing to suggest any impropriety of any kind" if prosecutors had material evidence relevant to Campbell's Atkins claim and failed to inform either defense counsel or the court. The Fifth Circuit said this information was "in the exclusive possession of the District Attorney's office." I suppose Alcala is saying defense counsel may have been ineffective in not asking for the information, even though they didn't know it existed. But surely prosecutors should have proactively provided the information or at least not withheld it in their own court pleadings.

See MSM coverage related to the case.

MORE: From The New Republic, "How Texas Keeps Putting the Intellectually Disabled on Death Row."

Odd, 'arguably unethical' argument to salvage 'improper photography' statute

Mark Bennett breaks down the state's odd argument before the Court of Criminal Appeals aiming to uphold the constitutionality of Texas' "improper photography" statute (see prior Grits coverage) in a fashion so narrow that it would no longer criminalize the defendant's conduct in the instant case. Says Bennett:

The State’s narrowing argument in Thompson’s case stinks. While the facts of the case are not legally relevant to the as-written challenge, if the State had interpreted Section 1.07(a)(11) as the prosecutor urged at the Court of Criminal Appeals, Mr. Thompson would never have been charged—the subjects of his photographs were in public. It’s disingenuous—arguably unethical—for the State to argue a theory of the law on appeal under which the State would never have charged the defendant in the first place. If the State had follow its proposed rule, the defendant would never have been charged, never had to go to the expense and trouble of hiring Don to defend him through three courts.

The Court of Criminal Appeals could adopt the State’s proposed narrowing of the law and find that the statute does not forbid taking photos of people’s exposed parts in public because people with parts exposed in public consent, as a matter of law, to those parts being photographed. (Part of Volokh’s argument was that this could save the statute from overbreadth, but might cause a vagueness problem.) If the Court of Criminal Appeals does this, Mr. Thompson wins. Bexar County loses, and could lose big—since, according to the State’s own logic, Mr. Thompson should never have been prosecuted, Bexar County might find itself writing him a large check after he files his Section 1983 suit.

Texas youth in detention less likely to receive high-school credit than nationwide

Via this Waco Tribune Herald article, I ran across this study published in April by the Southern Education Foundation: "Just Learning: The Imperative to Transform Juvenile Justice Systems into Effective Education Systems" (pdf). The Trib story expressed pride that, though the study:

found 9 percent of juvenile students nationwide — or fewer than one in 10 — enlisted in a detention facility for 90 days or longer earned their GEDs or high school diplomas.

McLennan County’s Juvenile Probation Department is slightly higher with 15 percent of long-term students earning their GEDs through an in-house program designed specifically for at-risk students.

Overall, Texas' juvenile systems came in slightly higher than the national average by that measure, with 11% of eligible students earning a GED or graduating high school. But Texas logged a far lower rate of eligible students in detention facilities receiving high school course credits - 30% compared to 46% nationwide, according to the report's appendices.

In McLennan County, the juvenile detention center twenty years ago "formed an in-house reading program, but it wasn’t until the probation department added staff and received judicial support in 2007 that the GED program started." Since then, "45 students have enrolled in the program and 38, or 80 percent, have passed the GED test," reported the Trib.

That said, the report lamented that inadequate data sets caution against drawing hard conclusions from state to state comparisons:

The education data that Southern states have reported to the US Department of Education for children and youth in juvenile justice systems often has been incomplete and inconsistent. The reporting forms are too generic and fail to capture the reality of juvenile justice schools. With in and across states, the annual data offers very limited information about what is actually achieved in the juvenile justice schools for students and appears entirely divorced from any consideration of how student assessments should primarily be used for improving instruction and learning.

The report calls for rethinking juvenile justice programs through a primarily educational lens, creating individualized education programs for youth detainees and judging performance of the justice system by measuring educational outcomes in addition to recidivism. It also endorsed "a national goal of diverting more youth from large state facilities to local, non-institutional settings in the juvenile justice systems," a trend that Texas has led by reducing the number of inmates in state institutions by 80% since the 2007 Texas Youth Commission sex scandal. Even so, because the Texas Juvenile Justice Department does not closely regulate local juvenile detention facilities, it's unclear if that de-institutionalization has led to better educational outcomes, and the low number of juvenile detention students earning high-school course credit suggests it has not. The report concluded:

This is not a call for state juvenile justice systems to re-brand themselves as educational institutions. It will require a great deal more than simply changing the image and language of juvenile justice – much more than calling juvenile facilities “schools” or “campuses” and referring to incarcerated youth as “students.” Those kinds of cosmetic changes would be fraudulent with out first enabling a fundamental transformation of the mission, methods, goals, and accountability of the juvenile justice systems. Calling the Florida School for Boys a “reform school” did not prevent the tragedies that took place there in the distant and more recent past.

By establishing an educational mission and by re-designing their processes and functions primarily to provide effective education, juvenile justice systems will need to design and provide good schooling inside their own systems and to help to redesign and recreate effective schooling for these students in the communities they re-enter.

Nothing less will assure that juvenile justice systems help young people to leave and never to return to the juvenile system or to adult prisons. Nothing less will produce just learning and just results. Nothing less will deliver in the coming years on a promise of justice for the children and youth in custody and for the communities they re-enter. And nothing less will provide the South and the nation with the effective governmental systems that succeed in providing the nation’s most under-educated, vulnerable youth with a future that is better than the past. 

Police unions target 'enemies,' and other stories

Here are a few odds and ends that I likely won't find time this week to turn into individual blog posts but deserve Grits readers' attention:

Police unions target their 'enemies' at Lege
Somehow I'd missed the creation last fall of a new 501c(4) dubbed the Texas Law Enforcement Council by the Texas Municipal Police Association and the Dallas and Houston police unions. The Harris County Deputies Association and the DPS Officers Association have also joined the group. Houston Police Officers Union President Ray Hunt declared, "We have seen enemies of working law enforcement officers with R’s and D’s behind their names," and this group aims to target those "enemies." Their stated goal is to work on pension issues and officer "rights," but TMPA and the Dallas union in particular have been prone in recent years to stick their noses into policy issues at the Lege that really have nothing to do with union business. The group's bylaws specifically state that "A unanimous vote of the Board of Directors is required any time that TLEC opposes or supports a bill.  A member of the Board of Directors for TLEC and their respective member organizations (TMPA, HPOU, and DPA) shall not oppose a bill that is supported by TLEC and shall not advocate in favor of a bill that is opposed by TLEC." It's notable that the new group doesn't include the Combined Law Enforcement Associations of Texas, which is the state's largest umbrella group for police unions. The TLEC collaboration may be seen as an effort to shore up union clout in an environment where the big players have often spent as much time feuding with one another at the Lege as advocating on behalf of their members.

Lawsuits against Dallas police costing millions
Reported the Dallas News, "Since 2011, the Dallas City Council has approved 10 six-figure settlements or verdicts for lawsuits against the police department, according to city records. Those payouts have added up to about $6 million." Said the paper, "two things are certain: Video is increasingly playing a major role in the cases, and the city has had to dole out money frequently and in some of the biggest sums since the fake drugs episode in the early and mid-2000s. That scandal rocked the department and led to millions of dollars in lawsuit payments, demotions, firings and even criminal charges."

Austin police detective indicted for on-duty shooting of fleeing forger
A former detective became the first Austin police officer in a decade to be indicted by a grand jury over a shooting incident, the Austin Statesman reported. "[Det. Charles 'Trey'] Kleinert, who retired from the department amid an internal affairs investigation, surrendered himself Monday to officers at the Travis County Jail, where he was booked, fingerprinted and released on bail. It was unclear how quickly the case could go to court. He faces up to 20 years in prison if convicted on the second-degree felony charge." An accompanying story declared, "Indictments in police shootings rare, convictions even rarer."

Hearne officer who shot and killed 93-year old woman fired
Reported the Houston Chronicle, "Officials voted Saturday to fire the police officer who shot and killed an armed 93-year-old woman last week while responding to an incident at her home in Hearne, a central Texas town of about 5,000 residents two hours northwest of Houston."

Jury: Four Galveston officers used excessive force
The Houston Chronicle reported that, "A federal jury concluded Monday that four Galveston police officers used excessive force during a 2008 wedding party and awarded a total of $48,900 in damages to injured plaintiffs."

Car seizures next step in collecting unpaid tolls
Reported the Dallas News, "Under a new state law, [North Texas Tollway Authority] officials say, about 30,000 drivers are eligible to have their registrations blocked or cars impounded. These top scofflaws have racked up at least 100 unpaid tolls each, and together owe the agency millions." Specifically, "After due notice and a chance to appeal, the agency can now ban drivers from its tollways — fining each up to $500 if caught on one. If caught a second time, the agency can impound their cars, which may be auctioned unless they pay their tolls."

'Forcing change in forensic science'
Check out an article on the newly minted National Commission on Forensic Science, which includes a couple of Texas members.

Border Patrol agents in the Rio Grande Valley have highest complaint rates
So says this article from The Brownsville Herald.

Feds won't disclose phone tracking sans convictions
The feds say they don't have to disclose the use of cell-phone location tracking unless a case results in a conviction. That leaves a big accountability gap. There are lots of reasons the government might want to use cell-phone location tracking besides just criminal prosecutions. (See below.) Somewhere in the bowels of hell, J. Edgar Hoover must be smiling.

'We kill people based on metadata'
So says a former CIA director explaining the national security importance of controversial NSA communications tracking.

Public transport, less regulation would reduce DWI arrests

The Austin Statesman on Saturday published an item touting expanded public transportation options as a remedy for DWI. The article opened:

In the wake of several high-profile deaths in which pedestrians were hit by suspected drunken drivers this year, an Austin council member is seeking to expand the city’s transportation options during hours when the most people need rides.

Council Member Chris Riley wants the city to create a pilot program for so-called transportation networking companies, such as Uber and Lyft, and for the city to work with the three taxi companies that operate in Austin to figure out how to meet peak taxi demand.

Many residents have recently expressed concerns about transit options, Riley said, largely because of problems with drunken driving.

“They don’t feel there are adequate alternatives to driving home after a night of drinking,” he said. “If we had better cab service, if we had options like transportation networking companies, and if we had a well-known and convenient public transportation service, then that would go a long way toward providing more alternatives to drunk driving.”

I couldn't agree more. Grits has long held that such structural barriers to getting drinkers home from the bar districts play a big role in preventing more substantial reductions in DWIs. Austin has failed to invest in public transportation on anything remotely like the scale required to accommodate its recent, fantastic growth rates. And our antiquated taxi regulations are more about protecting a local oligopoly than maximizing benefit to the public. Again from the article:

Sara LeVine, founder of ATX Safer Streets, a group aimed at reducing impaired driving through late-night transportation options, said she’d like to see the city issue more taxi permits and legalize transportation networking companies while protecting existing cab services.

But Ron Means, general manager of Austin Cab, said both ideas have the potential to decimate the taxi industry in Austin and endanger residents who might get in a car with a unvetted driver working for a transportation networking company.

I don't know about you, I'm far less afraid of a sober, "unvetted driver" than a drunk one. And the idea that rideshare services like Uber, Lyft or Sidecar "endanger residents" more than traditional cab companies is dramatically overblown.

The website for ATX Safer Streets, a group begun after the horrific crash at this year's SXSW event, has a good number of interesting research and proposals for expanding transportation options to reduce DWI. IMO they're very much onto something: There's a limit to how much an enforcement-only approach to DWI can affect the problem when structural design, regulatory and zoning issues encourage the problem police are trying to solve through arrests and jail threats.

See prior, related Grits posts:

• Public transit can prevent DWIs
• A private sector remedy to DWI?
• 'Are some cities built to encourage drunk driving?' I'm talking to you, Houston
• Why so few DWIs in Berlin? Public transport
• Public transport, less restrictive zoning would reduce DWI

CCA to decide if Texas' improper photography law unconstitutional

The Texas Court of Criminal Appeals on Wednesday held oral arguments regarding the constitutionality of Texas' "improper photography" statute in a case styled Ex Parte Thompson. There's a post on the case from Eugene Volokh, who along with Don Flanary III of San Antonio argued the case on behalf of the defense, and one from Mark  Bennett, who has long held that this statute violates the First Amendment. See also prior Grits coverage, and here's the state’s brief, defendant’s brief, and an amicus curiae brief from the Reporters Committee for Freedom of the Press, whom Volokh represented.

Mark Bennett argued that:

The San Antonio Court got the question of whether 21.15 is content-based or content-neutral wrong. (It matters because a content-based statute has to pass stricter scrutiny than a content-neutral one; the San Antonio Court found that 21.15 did not even pass the lesser scrutiny.) ...

For the convenience of courts of appeals for whom this concept might be too complex, I offer the Grumpy Cat Rule: If the statute favors images of grumpy cats over other images, its regulation of speech is content-based.

Following the Court of Criminal Appeals unanimously overturning the online solicitation of a minor statute on First Amendment grounds, this may be one to watch. Prosecutors are worried that, since the online solicitation statute was struck down on essentially similar grounds to the Fourth Court of Appeals ruling in this case, the improper photography law might also be deemed unconstitutional. I wouldn't be surprised. Time will tell.

Criminal justice data from feds: Prison rape, jail pop, executions

From the Bureau of Justice Statistics, here are several new reports that may interest Grits readers:

• "PREA data collection activities" (pdf) and  a related press release. "Administrators of adult correctional facilities reported 8,763 allegations of sexual victimization in 2011, a statistically significant increase over the 8,404 allegations reported in 2010 and 7,855 in 2009." Also, "About 52% of substantiated incidents of sexual victimization in 2011 involved only inmates, while 48% of substantiated incidents involved staff with inmates."
• "Jail inmates at Midyear 2013: Statistical tables" (pdf) and the related press release. "After a peak in the number of inmates confined in county and city jails at midyear 2008 (785,533), the jail population was significantly lower by midyear 2013 (731,208)."
• "Prisoners Executed": Here's the press release and Excel spreadsheet. From 1977 to 2013, Texas accounted for 508 out of 1,356 executions nationwide (37.5%). The states with the next most executions were Virginia (110), Oklahoma (108), Florida (81), Missouri (70), Alabama (56), Georgia (53), Ohio (52), and North and South Carolina at 43 apiece. Notably, while Texas continues to have the most executions annually of any state, the overall trend from 1977 to 2013 in Texas and nationally track pretty closely. See the chart below.

Executions since 1977: National vs. Texas