Friday, June 27, 2014

How Houston can boost police coverage without busting the budget

Say you're chief of the fourth largest police department in the country. You need more warm bodies to investigate crimes but the city's revenue cap means you can't afford to hire more officers. Why not use the ones you've got more intelligently?

A consultant's report (pdf) released last month found that Houston PD failed to investigate 20,000 offenses for which officers had "workable leads." Reported the Houston Chronicle, "The report noted that 15,000 burglaries and thefts, 3,000 assaults and nearly 3,000 hit-and-runs were not investigated last year. The data was based on monthly HPD management reports of cases with workable leads." From the Chron, see:
I meant to post these links before now except Grits suffers from the same nagging feeling as Charles Kuffner that "We need more context to the HPD no-investigations issue." Many cases go uninvestigated for a variety of reasons, so is 20,000 typical, high, low? The low clearance rates on burglaries don't surprise me; we have the same issues in Austin. Reported crime has declined in recent years in Houston, so something's working in a positive direction. But whether that's because of police practices, demographic changes, economic improvement, declining background levels of lead, the rise of video games and cable TV, who knows? What's responsible remains largely a mystery.

In Houston, the announcement has predictably led to calls for H-Town to hire more police officers, so let's focus on that. Assume for a moment more officers are needed (and I agree with Kuff that how many is a legitimate debate). The city is strapped so how to pay for it?

Here's how to boost the number of police officers available on patrol while freeing up officers to work as detectives in the burglary and other backlogged divisions:
  • Implement verified response for burglar alarm calls, requiring alarm companies to verify a crime was committed before dispatching police. These alarms are 98-99% false, almost never result in arrests, and account for 10-12% of most departments' patrol calls. This one reform would be the equivalent of increasing patrol staffing by ten percent.
  • Begin to use discretion given police by the Legislature in 2007 to write citations instead of making arrests for driving with a suspended license and possession of marijuana.
  • Follow Texas' other large cities by issuing paraphernalia citations for crack pipes instead of sending them to the crime lab to scrape traces off for state-jail felony possession prosecution. (See Harris County District Judge Mike McSpadden's letter to the Legislature urging this reform.)
Those three changes would free up many thousands of police hours without costing the city a dime - certainly enough to allow HPD to adjust staffing levels to create a few dozen new detective slots. Indeed, the last couple of bulleted items would probably save the county money, too.

Thursday, June 26, 2014

Surging toward Groundhog Day, and other stories

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

Pointless 'surge': Waiting for the punchline
DPS' $1.3 million per week border surge IMO is a bad joke. Brandi Grissom must think it's Groundhog Day. How many "surges" have we witnessed in Texas since Operations Linebacker, Wrangler, etc.? What did they solve? And how will this one convince some teenager in Honduras not to begin the march northward fleeing oppression and poverty to come here for a job that Texas businesses want give him? The feds seem to have a more pragmatic response: bringing in emergency judges to process immigration cases. Maybe this would be a good time for the US Senate to fill some of Texas' empty federal judicial posts.

Eat This
A Tyler company admitted no guilt as it entered into a $392,000 settlement with the US Department of Agriculture after meat it sold as pet food wound up being fed to inmates at the federal Bureau of Prisons.

'Pregnant women in Texas county jails deserve better than this'
Horrific. From the Dallas News (June 26), "A federal lawsuit in Wichita Falls shines a spotlight on a dramatic example of how the opportunity for lifesaving medical intervention is often missed in county jails. In this case, a child was tragically lost." See the full, gut wrenching column coauthored by the Texas Jail Project's Diana Claitor and Burke Butler of the Texas Civil Rights Project.  

Arson and false convictions
As evidence that Texas' arson review has had national influence, check out this NBC piece on a Michigan man exonerated in an arson-murder case. It hails Texas as authoring "the most comprehensive overhaul of fire investigation in the nation" and holds up the state fire marshal's review of old cases as a model.

Weather litigation heating up with summer
The Dallas Observer has details from one of the lawsuits over excessive heat at Texas prisons focused on the Hutchins State Jail. Wrote Sky Chadde, "Larry McCollum's death received most of the press. McCollum was a 58-year-old Hutchins inmate -- in for a nonviolent crime -- who suffered a seizure after several 100-degree-plus days in a row. At the hospital, his body temp was 109.8 degrees. He fell into a coma and died six days later, from living in a place with high temperatures and no A/C. Lawyers from the Texas Civil Rights Project sued the Texas Department of Criminal Justice, which runs the state's prison system. That lawsuit is still playing itself out, but now the department has another one on its hands." The story noted at the end that, "Recently, the AP reported that the criminal justice department is hoping to make seven state prisons a little more bearable by using large fans, like those football teams use to cool down on game days."

FBI to TX: Give our informant a PI license
Eric Dexheimer at the Austin Statesman has the story of an FBI informant with impeccable references from his handlers who was nonetheless turned down for a private investigator license because of his criminal history.

Bad analogies and the Fourth Amendment
Here's hopeful assessment from Vox of the import of yesterday's SCOTUS decision that cell phones can't be searched incident to arrest. "The Supreme Court's new attitude is best summarized by a single sentence in the opinion. The government had argued that searching a cell phone is no different from searching other items in a suspect's pocket. That, the court wrote, 'is like saying a ride on horseback is materially indistinguishable from a flight to the moon.'" Much of the debate surrounding the Fourth Amendment in the 21st century hinges on bad analogies, the author argues.

Habeas corpus post-Guantanamo
The Stanford Law Review has a nice little summary of the effectuation of federal habeas corpus and due process rights in recent D.C.-circuit case law for prisoners at Guantanamo Bay.

There are also worthy, recent items at Texas Prison Bidness, Defending People, and The Defense Rests.

Wednesday, June 25, 2014

LBB brief: 'Adult parole in Texas'

The Legislative Budget Board today published a two-page issue brief titled "Adult Parole in Texas" (pdf) - a pretty general overview that is perhaps most useful to those already familiar with the system for the list of budget line items affecting parole in the current biennium at the end of page two.

Texas CCA beat SCOTUS to punch on cell-phone search issue

The US Supreme Court unanimously ruled today that law enforcement may not search the contents of cell phones incident to arrest without a warrant. This decision will be much-heralded as a victory for privacy, and rightly so. But I wanted to take a moment to point out that, for once, the Texas Court of Criminal Appeals was ahead of the curve on this one, ruling 8-1 in February that law enforcement couldn't search the contents of arrestees' cell phones without a warrant after they'd been booked into the jail. Grits criticizes the CCA when I think they get things wrong - to the occasional annoyance of more than one member of the court - so it's worth acknowledging when they got it right. This time they did.

MORE: See a SCOTUSBlog symposium on the new case.

Some prosecutors demanding waivers from defense before handing over Michael Morton Act discovery

Since Court of Criminal Appeals Judge Barbara Hervey's Criminal Justice Integrity Unit announced it will address issues raised by stakeholders related to the Michael Morton Act at their next meeting in the fall, here's a topic for her list from the Texas District County Attorneys Association's discussion forum: Can/should prosecutors seek waivers from defense counsel for any further discovery of inculpatory evidence when they hand over the information required under the Michael Morton Act?

A prosecutor from Wharton County opened the discussion with this June 10 post:
Our defense bar is very unhappy we are using a 39.14 waiver (which only waives further discovery of inculpatory evidence AND NEVER exculpatory evidence). Anybody else dealing with this? [Ed. note: 39.14 is the Michael Morton Act]

Do we need a waiver?

Should it blow up a plea if counsel won't agree or acknowledge the waiver?

I've also heard some judges won't allow a waiver? Anybody run into this?

I was pretty sure I had thought this all through already, and a waiver was the way to go when we enter a plea. Things are getting messy, though. Anybody out there running into any new related 39.14 issues?
A prosecutor in Collin County said they required a similar waiver. In an additional post, the Wharton County prosecutor clarified, "All we are asking is the waiver of any further right to inspect or copy discoverable items other than Brady and/or subsection (k) items."

I'm not a lawyer so perhaps some defense attorney readers can explain to me: Why would anybody sign that? The prosecution is required to give the defense statutorily required discovery under the Michael Morton Act, whether counsel signs a waiver or not. I understand why the prosecutors might want a waiver, but what's in it for the defense side? Thoughts?

Also, have defense counsel in other jurisdictions encountered similar waivers? If so, please say where in the comments. (In fact, if you're willing, email me examples if you've got them at

Anyway, the CCA's integrity unit can add this to the list of Michael Morton Act issues they should delve into this fall. To my knowledge, nobody's really examined closely how the new law is being implemented on the ground. Doing so in a public forum with all the stakeholders in the room will be a mitzvah.

On 'The Excessive Militarization of American Policing'

National ACLU this week published a new report titled "War Comes Home: The Excessive Militarization of American Policing." (Hmmm, seems like there was a recent book on that topic.) I haven't had a chance to read it yet but thought I'd pass the link along. There appear to be quite a few Texas-specific details and examples in the full report (pdf), for anyone interested. I also found their framing of the issue potentially compelling: "Nearly 80% of the SWAT raids the ACLU studied were conducted to serve search warrants, usually in drug cases. With public support for the War on Drugs at an all-time low, police are using hyper-aggressive, wartime tools and tactics to fight a war that has lost its public mandate." (Wonder how that would test on a poll?) They've even produced a pretty potent passel of short web videos, maps, slideshows, and other online accoutrements supporting its release. Nicely done.

Audit: Failures of oversight at Dallas police academy

Grits has not been closely following the ongoing back and forth between the Dallas police chief and local police unions over failures in management, allegations of racial bias, supposed lax standards for new recruits, retaliation against whistle blowers,  etc., at the Dallas Police Academy.  The police union has accused DPD internal affairs of “Bullying and manipulating officers and civilians into providing manufactured statements that fit what the command staff may be looking for.” As DPD Chief David Brown put it, the whole thing is a "hot mess" into which I haven't had time to deeply delve.

But when I noticed in this article that the Texas Commission on Law Enforcement (TCLE) issued an audit of the academy this week, I asked for it under open records and thought I'd post a copy for anyone interested. Here it is:
Not too much there, I'm afraid, that could help resolve the issues being raised between the chief and the unions.

TCLE found the academy's Advisory Board wasn't composed correctly, had no chair, and failed to function properly. There were also documentation issues. Nearly 20 percent of training rosters weren't submitted to TCLE within required time frames (30 days after completion), with the worst one 107 days late. DPD said a chair has now been appointed and plans to fix the rest.

One of the most strident complaints spurring the audit related to allowing students to take multiple retests of their driving test if they failed the first time. DPD has changed its policy to allow multiple retests but only if they're taken on the same day as the first one. They also created a policy for a single retest on written examinations if a cadet scores lower than 70.

Perhaps most concerning: The audit found that DPD exercised little oversight over in-service or academy curricula. Lesson plans hadn't been updated, contained insufficient detail, and the academy made little if any effort to ensure instructors were accountable for teaching from the lesson plan. And among instructors there was significant variation and little consistency regarding how students were graded. DPD was directed to "Develop a review of instructors to determine if the instructor is effective and ensure a process is in place to capture the student's critiques of the instructor." DPD says it will do so, but why wasn't it happening before?

Grits' own opinions on this nascent fiasco remain largely unformed. So far it feels more like a skirmish in a larger battle between the chief and the Dallas Police Association than a scandal in-and-of itself. But it does appear that DPD's management of the academy had become relatively lax and laissez faire, to say the least. So the episode gives the chief's critics more ammunition with which to attack him at a vulnerable spot where management is culpable. Ironically, cleaning house among academy leadership was probably necessary given that lack of oversight and supervision were the main flaws found in the TCLE audit. That won't stop the union from criticizing him, though. When there's blood in the water, sharks circle.

Tuesday, June 24, 2014

Private lab may have mixed up hundreds of DWI samples

Here's another mess for the Texas Forensic Science Commission to sort through, this time related to a private lab handling DWI blood work for Bexar County. The San Antonio Express News coverage ("Lab errors place DWI cases under scrutiny," May 23) opened thusly:
Hundreds of Bexar County driving-while-intoxicated cases now are under scrutiny after a forensic lab contracted by the county fired an analyst accused of turning in sloppy paperwork on several occasions — including once when she recorded names incorrectly on 350 blood samples.

Integrated Forensic Laboratories LLC in Bedford fired the employee, analyst Cherrie Lemon, on May 16 upon determining that she “misplaced, lost or destroyed another analyst's worksheet,” according to a letter the lab director sent to the Bexar County district attorney's office.
Multiple phone calls to IFL's lab director, Dr. Nate Stevens, and several others in the lab's parent company weren't returned Thursday.
Stevens' email states that IFL is conducting an audit to determine which, and how many, DWI cases were affected by the fumbled documentation. The investigation should be complete by May 30, he said.
“We have no indication that there's anything wrong with the test results, it's just that she can't testify,” First Assistant District Attorney Cliff Herberg said. “But I imagine there will be quite a few requests for retesting.”

He said there are “several hundred” cases that could be eligible for retesting, which takes a couple of weeks. Because many of the cases still are awaiting trial, Herberg said he doesn't expect any retesting to cause significant court delays.

Last summer, Lemon was scolded for a separate incident in which she recorded the wrong names on 350 blood alcohol cases, Herberg said, adding it remains undetermined how many of those cases originated locally. ...

But local defense attorneys are more dubious of IFL's work, and have correspondence detailing additional mix-ups involving Lemon and others. One letter from last August states that while correcting one issue, Lemon found that “many packages” of blood tubes had not been properly sealed before they were refrigerated; in another instance, lab employees left a bottle of acetone in a preparation room that may have contaminated blood samples.

“People do make mistakes, but at this point, it seems a little bit more systemic,” said Robert Featherston, president of the San Antonio Criminal Defense Lawyers Association. “Nobody wants to see anybody convicted on contaminated evidence, and everybody's real interested in getting this stuff retested, if we can figure out whose blood is whose.”
This is the sort of large-scale situation for which the state needs to establish firmer protocols, particularly for identification and representation of already-convicted defendants whose cases may have been tainted by forensic error. IFL is a DPS accredited crime lab so it falls under the Texas Forensic Science Commission's purview and the incident has already been reported to the commission by the lab, the Express-News reported. IFL has also got a brand-new general manager, I discovered via a web search, who's got quite a job in front of her reacting to this mess.

Via Paul Kennedy, who has some choice words regarding notification issues in particular. He argued:
Now not to be too persnickety here, but letting the state and its agents decide when defense counsel should and shouldn't be notified of potential evidential issues is a bit like letting the fox guard the hen house. The question isn't whether an audit revealed "issues" with any of the tests, the question is whether or not the revelations cast doubt upon the reliability of the test results.

The rule going forward should be that should any issues arise at a crime lab (or contracted lab), both the court and defense counsel should be notified. The court should then determine whether the problem is serious enough to compromise a test result (or to present the appearance that a test has been compromised).
For anyone who still harbors illusions that our modern day crime labs are as sophisticated and well-run as the labs on CSI and other forensic science procedurals, let this be a wake-up call. The purpose of a crime lab isn't to discover the truth - it is to produce useful evidence for the prosecution. This mission creates a culture where problems are to be swept under the rug lest those pesky defense attorneys find out what's going on behind closed doors. It's only when there are clear cases of misconduct that any of us find out just what happened.
That last observation in particular is right on the money. And it's one of the reasons I think the Forensic Science Commission has been valuable. The fact that problems must be reported to them and are publicly vetted greatly increases transparency, has produced numerous fruitful recommendations and outcomes, and has fostered a useful public forum for deliberation among stakeholders surrounding these topics, which is all it was ever really empowered to do. When they meet again in August, I'd expect the FSC to vote to investigate Bexar County case, based on their prior patterns. Seems right up their alley.

Nuther Houston crime lab mess

The Houston Chronicle reported last week (June 18) about yet another clusterf&%k at the Houston crime lab, this time involving a tech from the DNA lab. The article by Brian Rogers opened:
Scores of pending criminal cases and past convictions could be in jeopardy in the wake of revelations that a former Houston Police crime lab technician resigned after an internal investigation found evidence of lying, improper procedure and tampering with an official record.

Former DNA lab technician Peter Lentz worked on 185 criminal cases, including 51 murders or capital murders, according to letters sent out by the Harris County District Attorney's Office and obtained by the Houston Chronicle through an open records request.

"It's a mess," said Gerald Bourque, an attorney who has several cases in which Lentz tested the DNA evidence, including two capital murder cases, one of which went to trial earlier this year. "If you're not following protocol, there's potential for contamination, transference, all kinds of stuff." ...

The disclosure about the technician's resignation comes as control of the perennially troubled lab was transferred in April from HPD to a civilian-led board of directors.

Integrity unit plans for training, 'white paper', Michael Morton Act evaluation

The Texas Court of Criminal Appeals' Criminal Justice Integrity Unit yesterday issued a press release describing its recent activities and plans for the future. Four of the six items listed related to training.

Of particular note, "The TCJIU will hold a meeting this fall with all stakeholders regarding the Michael Morton Act. Stakeholders at the meeting will discuss the Act, its impact on the various stakeholders in the Texas criminal justice system, and how to assist participants in the criminal justice system to allocate the necessary resources to comply with the Act." I'm quite looking forward to that discussion.

In addition, “Following up on the successful May 1 meeting, stakeholders are providing 'best practices' for disclosure with respect to notifying interested parties when an irregularity has occurred in a criminal case or cases. Once the TCJIU has worked with stakeholders to identify 'best practices,' it will produce a white paper to provide a blueprint for statewide notification in an effort to prevent insufficient piecemeal solutions that could result in people 'falling through the cracks.'” (See Grits coverage of that meeting; you can listen to the whole thing here.) Grits wonders why the press release limited the white paper's focus to "notification"? At the May 1st meeting, there was a consensus that notification by itself would be ineffective without also creating a vehicle for indigent and/or incarcerated people to secure legal representation. Since the most important reform suggested for dealing with "irregularities" at that meeting (besides "training") was to create an appellate public defender for forensic writs, one hopes any "white paper" based on stakeholder suggestions would advocate and further that goal.

Sunday, June 22, 2014

US incarceration rate world's highest; Texas, southern states leading the pack.

If one were to rank U.S. states as independent nations, Texas would have the fifth highest incarceration rate worldwide (i.e., the number of people incarcerated per 100,000 population), behind Louisiana, Mississippi, Oklahoma, and Georgia, reported the Prison Policy Project in a remarkable chart. (H/T: Sentencing Law and Policy.) Of course, Texas is so much larger than those other states that our prison population numbers greater than the combined total of the four states above us on the list (calculated based on prison population estimates here). Texas has the largest prison population of any individual U.S. state - higher even than California which has a much larger free-world population.

Ranked thusly, other nations don't even come into the incarceration picture until way down the list, beginning with Cuba, Rwanda, Russian Federation, and El Salvador. Choice company, eh?

Here's another remarkable graphic from their research:

Saturday, June 21, 2014

Pot penalties, jails and mental health, prison heat, recording interrogations, immigration and judges

Here are several items that aren't going to make it into independent Grits posts but which deserve readers' attention:

Pot penalties too harsh on large amounts and small
The Statesman editorial board joined the chorus this week to say the 5-99 year penalty range being applied for pot brownies to a Williamson County teen is too harsh. While I don't believe the kid's at significant risk of spending 99 years in TDCJ for the offense or anything like it, it's true the penalties are out of whack. We've talked about reducing marijuana penalties on the misdemeanor end, but is there any level of marijuana possession that deserves the same first-degree felony charges one would get for murder or kidnapping? Really all Texas marijuana penalties, not just user-level penalty categories, should be ratcheted down one notch.

Harris Sheriff blasts state for failure to fund mental health treatment
Reported Ross Ramsey at the Texas Tribune, Harris County Sheriff Adrian Garcia says the Department of State Health Services "is not offering the care that it is required to provide." "Given proper treatment, the sheriff argues, some patients would not be committing the crimes of which they are accused. Instead, they end up in Harris County’s jails, where they are a health care and financial burden to the county." Garcia's "recommendations include increasing staff for the hospitals and expanding capacity by contracting with local providers whenever possible" I do find questionable Garcia's claim that "the majority of people who are in my custody who are in this mental illness category are coming here largely because of their illness and not necessarily because of their actions." IMO, that's not true, and the best research on the topic conflicts with that view. Mental-health treatment is an important component for the sub-group of offenders who need it, but it's not a silver-bullet cure all.

Veterans, PTSD, and medical pot
Grits recently spent a morning in San Antonio listening to Texas legislators from two House committees discuss Veterans Courts and treatment services for ex-military personnel charged with crimes who suffered from PTSD and Traumatic Brain Injury. But nobody addressed the question from the angle taken by Bill Martin in this June 2014 Texas Monthly story, "War Without End": Medical pot. The subhed to his story sums up his well-versed argument: "As veterans return home from combat in the Middle East, many struggle to leave their experiences behind. They are sleepless, anxious, and angry. And medications often make the situation worse. No wonder a growing number of former soldiers are turning to a treatment that makes them criminals in Texas: Marijuana."

Texas heat litigation seeks class-action status
Yet more litigation has been filed related to excessive heat in Texas prisons, this time out "at a Navasota lockup where [inmates] allege it is so hot that metal tables are too hot to touch and metal-walled cell blocks are like ovens." According to the Houston Chronicle, out of all the various heat-related lawsuits against TDCJ, this is "the first one seeking class-action status that could open the prison system up to statewide litigation." See additional coverage from Texas Monthly and the Washington Post.

A law enforcement response to a humanitarian crisis
So thousands of unaccompanied minors show up at the Texas border from Central America: Texas' response: DPS will conduct another pointless "surge" at a cost of $1.3 million per week. If Texas Republicans want to a) show it's untrue they cease to care about children the moment they're not aborted, b) convince Latino voters to stop believing they're a bunch of xenophobic zealots, and c) confront actual problems at the border instead tilting at trumped up fictions, why not respond with humanitarian assistance for the kids instead of overtime pay for troopers to drive around the Valley? Just a thought.

New US Senate filibuster rules haven't busted Texas' federal judge shortage 
Like the Statesman editorial board, I'm glad to see more federal judge slots filled in Texas, but as  Jazmine Ulloa reported, "federal judicial vacancies across the state remain among the highest nationwide, even as the Texas courts struggle to handle some of the busiest and most complicated dockets in the country. Recent budget cuts have compounded the problem." Couple the ongoing shortages with the recent arrival of tens of thousands of unaccompanied children at the Texas border and all the family law issues those cases will entail, and the feds need to fill judicial vacancies in the southern and western districts, in particular. Wrote Ulloa, "Two more vacancies are expected within the next year," so, "If there are no replacements by then, one federal bench in every five in the state will be empty. And there aren't enough judges allotted to Texas' Western district to handle their dockets, even if they were fully staffed at present levels. How is it possible to stiffen up immigration enforcement if the federal judiciary isn't staffed up sufficiently to handle the caseload?

Arguments against recording interrogations falling by wayside
If the FBI can record custodial interrogations, why can't Texas? Momentum on this issue is shifting. The Rodney Ellis/Terry Canales bill requiring police to record interrogations in serious cases has a good chance to finally make it through the Texas legislative process in 2015.

Thursday, June 19, 2014

Juvenile crime, incarceration down; extra capacity at TDCJ?

Mistakenly thinking the Legislative Budget Board had finally released its much-anticipated long-term prison population projections, I clicked on this link on their site only to find myself staring at a routine Monthly Tracking Report for the Texas Department of Criminal Justice (TDCJ) and the Juvenile Justice Department (TJJD). Ho hum. Glancing quickly through it, I did see a couple of interesting items I didn't know.

Extra capacity at TDCJ?
From the bottom of page 1:
  • As of May 2014, the agency had 1,473 beds temporarily removed from capacity due to staffing shortages.
  • Also in May, 849 Substance Abuse Felony Punishment (SAFP) beds were temporarily converted into Intermediate Sanctions Facilty (ISF) beds. 
The report doesn't say which units shut down capacity because of understaffing, but 1,473 is a significant number. That makes me think the agency has yet more capacity it could shed, perhaps starting with units that can't keep their staffing up. TDCJ's monthly population reduced slowly over the last year, from 150,931 to 150,461, so basically flat.

That's where the long-term projections I was looking for come in. Sometime in June, LBB is scheduled to come out with an important set of official prison population projections on which legislative appropriators must base their various funding schemes. At a recent House Appropriations Committee hearing, LBB staff implied that the new projections would not show long-term growth in prison populations to the same extent as their last projection, which is now 15 months old. But we won't know for sure until the document is released.

If the downward trend continues, the Lege should cut more prison capacity and use the savings for treatment, rehabilitation and reentry programs.

Juvenile crime plummeted after Texas de-incarcerated youth prisons
Another fascinating tidbit from the tracking report: Despite having reduced the population of Texas youth prisons by nearly 80 percent after the 2007 sex-assault scandals and closed most of them, the average daily population of juveniles on probation statewide declined by 30 percent in Texas over the last five years, from 35,645 in 2008 to 24,896 in 2013. Referrals to probation fell over the same period, from 97,584 in 2009 to 68,386 in 2013, according to the report. And in schools, the number of Mandatory Attendance Days at Juvenile Justice Alternative Education Programs (JJAEPs) also went down, from 110,189 in the '08-09 school year to 73,227 in 2012-13. And that's despite the Legislature mandating that school police write fewer Class C tickets to students who misbehave.

Since juvenile incarceration fell almost 80% from its height after the Legislature first reformed, then disbanded, the Texas Youth Commission, what caused juvenile referrals (read: new offenses) to decline so rapidly in the years that followed? Many people associate incarceration with crime reduction, assuming prison keeps us safe from predators who would harm us if they were out. So how does the tuff-on-crime crowd explain such a radical reduction in juvenile incarceration corresponding to a 30-percent drop in juvenile crime over the last several years period?

Grits finds the rapid but inexplicable drop in juvenile crime one of the most remarkable, yet little-remarked stories in Texas criminal justice. A tremendous achievement. Too bad nobody knows what caused it nor how if at all it related to government policies, so it can't be readily replicated.

Tuesday, June 17, 2014

'Leading Fire Investigation Into the 21st Century'

At, Brantley Hargrove has a substantial piece titled "Leading Fire Investigation Into the 21st Century" about the case of Sonia Cacy, a West Texas woman accused of arson who was found guilty based on flawed junk science. For the record, Cacy is currently represented in her habeas corpus proceeding by Gary Udashen, who is board president of my employer, the Innocence Project of Texas.

Hargrove framed the story in terms of the renewal and revival of arson science in Texas beginning when Gerald Hurst first analyzed expert testimony in Sonia Cacy's case to help her secure parole in the 1990s. He related the role of the Todd Willingham execution and the post-mortem political fiasco surrounding the Texas Forensic Science Commission as a spur to banishing bad science in Texas arson cases. And he described state fire marshal Chris Conneally's panel of experts reviewing old arson cases like Cacy's and Ed Graf's to identify bad science and reinforce the use of the good stuff.

Grits is happy to see wider coverage of these obscure but important topics. Go read the whole thing.

Saturday, June 14, 2014

Jonathan Salvador fallout: Two cases bookend range of options

A pair of notable cases related to the Jonathan Salvador DPS-Houston crime-lab fallout demonstrate the range of options for how thousands of affected drug cases might go. Salvador, readers will recall, was caught and fired for engaging in "drylabbing," or recording results without having performed the underlying testing.

On June 4th, the Texas Court of Criminal Appeals (CCA) delivered a brief, 5-page opinion in Ex Parte Coty denying habeas corpus relief after re-testing of the evidence confirmed it was cocaine. Important case. Former DPS crime lab worker Jonathan Salvador worked on just fewer than 5,000 cases while he worked there. So, as of the Coty case, and contrary to the court's prior ruling, all those cases aren't automatically jeopardized. If evidence is available for retesting and the results confirm Salvador's findings, or if prosecutors possess other material evidence of guilt, convictions may be sustained by the CCA. At their weekly case summary, the prosecutors' association was clearly pleased:
With this decision, the State now clearly has hope when confronted with a case in which the conduct of a bad scientist has threatened to ruin a conviction. Back in January in this case, the court gave us a new set of rules to follow in “bad scientist” cases that backed away from a “defendant always wins” approach. Now with this decision and with the new rules put into practice, the State has a clear roadmap to save an otherwise valid conviction. Thank goodness. The prospect of the finding of an automatic due process violation would have been devastating. The State is still going to have to do some work, as evidenced by this case, but at least now there is some hope.
Ah, hope springs eternal. Meanwhile, Fox-26 in Houston this week (June 12) reported on a Conroe man soon to be freed because of the Jonathan Salvador mess. According to that short piece by Isiah Carey:
It could be a matter of days before a Conroe man is free after being convicted on what prosecutors call shoddy crime lab work.

This comes two years after a Department of Public Safety crime lab employee was fired for falsifying drug test results.

Defense attorney Rick Brass says his client Diedrik Cavil was sentenced to 45 years on the evidence prepared by the now former worker.

Brass says there are at least 5000 cases affected in the two year old investigation. ...

Montgomery County prosecutors say they have about two hundred cases affected but they don't believe all of them will be dismissed like the Cavil case. [Ed note: See the CCA's May 7 opinion in that case.]
So, some convictions sustained from the Salvador debacle, some dismissed, what's the difference? What's happening here?

Partly, it's that drug evidence in Coty's case was still available in an evidence locker somewhere for re-testing. The state went through that process and the results confirmed Salvador's original findings. But that's not always the situation. The Texas Forensic Science Commission (FSC) estimated that evidence has been destroyed and is thus unavailable for retesting in a quarter to half of all cases, or approximately 1,250 to 2,500.

So you've got three categories of cases: Those where evidence exists and retesting confirmed Salvador's findings, those where evidence has been destroyed or is unavailable for retesting, and those where Salvador actually engaged in misconduct. (There's also a fourth group in some counties where no one has bothered to check or even notify the defendant about what happened and retesting may or more-likely may not occur.)

If all the defendants were notified and provided access to habeas counsel, one would expect 1,200 to 2,500 successful habeas claims, at a minimum, where evidence was destroyed, plus however many cases of actual misconduct are discovered. In reality, though, most defendants eligible for relief may not know about Mr. Salvador or, if they do, be able to afford a lawyer to pursue the case. They may or may not, for a variety of reasons, file pro se (on their own, without a lawyer) from their prison cell, much less while they're on probation or parole. In a few counties like Galveston, Montgomery, and Harris, defendants may be notified and, if eligible, promptly appointed counsel. But in other jurisdictions it's been much more hit and miss.

This is why Mary Ann Wiley, the new general counsel at the governor's office (congrats MAW, btw!), a few weeks ago suggested creating a public defender office for forensic writs. The Salvador episode should be a wake up call. The example offers the strongest possible argument in favor of such a post: The habeas corpus process isn't designed to carry such weight, especially if it's all done haphazardly via often imprisoned, pro se inmates. With many more Salvador-fallout cases likely to soon be filed (now that the case law is clear) and hair-and-fiber cases waiting in the wings, the Lege would do well to create a process in 2015 for handling this and similar situations. This won't be the last.

UPDATE: Just as a reminder, here's the distribution of Salvador's ~5,000 cases scattered across 36 Texas counties:
  • More than 250 cases: Montgomery, Galveston, Fort Bend, Harris, and Liberty
  • 101-250 cases: Brazoria, Chambers, Grimes, Hardin, Jasper, Matagorda, Polk, Walker, Waller, Wharton
  • 10-100 cases: Austin, Jefferson, Newton, Orange, San Jacinto, Trinity, Tyler, Washington
  • Fewer than 10 cases: Angelina, Brazos, Burleson, Colorado, Hidalgo, Houston, Jackson, Leon, Madison, Nacogdoches, Sabine, San Augustine, Shelby
Related Grits coverage:

Friday, June 13, 2014

Timely panel on online privacy: Assessing prospects for Texas legislation

One wouldn't fancy Grits would be asked to address a roomful of computer geeks, but I'm headed later today to participate on a panel at Texas Linux Fest dubbed an "Online Privacy Discussion" along with Ron Yokubaitis, Co-CEO of Golden Frog, attorney Scott McCollough, and Brian Hauss, a Legal Fellow from the national ACLU.

Very timely topic, considering all that's going on in the world. The federal Eleventh Circuit Court of Appeals this week ruled a warrant is required to access historic cell-phone location data, a ruling which contradicted the Fifth Circuit (which includes Texas) and frustrated Orin Kerr to no end. (A pretty obvious pickup for SCOTUS, one would think, with blatantly conflicting circuit rulings.) The governor of Tennessee recently signed legislation requiring state and local law enforcement to gets warrants for cell-phone location data in that state, joining Montana, Maine, Utah, and Virginia in the club of states who did so through the legislative process. Supreme Courts in New Jersey and Massachusetts have implemented state-level warrant requirements in those states.

Everywhere you turn, electronic privacy is a hot button issue. Motherboard has a story this morning about stingrays or "IMSI catchers" (see prior Grits coverage) titled "Stealing cell phone data is so easy, even police departments can do it."

Grits knows little about Linux beyond some inept and so far fruitless fumbling with a Raspberry Pi. I'm joining the LinuxFest panel on behalf of the Texas Electronic Privacy Coalition (whose website is in woeful need of updating!) to talk about why Texas' legislation requiring warrants for cell-phone location data didn't pass, why an amendment requiring warrants for email and other cloud-based content did, interim charges on the topic prescribed by Lt. Gov. David Dewhurst in the senate, and prospects for electronic privacy gains in the 84th Texas Legislature next spring.

The main difference between 2013 and 2015 is that, when Texas' bills protecting location data and cloud-based content were filed and heard in committee in early 2013, Edward Snowden hadn't changed the world yet. If his revelations had come two months earlier, legislation by Rep. Bryan Hughes in the House and/or bills by Senators Juan Hinojosa and Craig Estes in the Senate would have easily passed, I've little doubt. Nobody in the political class had ever heard of "metadata." The issue was (relatively) new to everyone whose name was not Christopher Soghoian; it had to be explained, repeatedly, often laboriously. Once legislators understood the bill, it was popular (107 joint and co-authors in the House). An amendment containing the bill language passed 126-4 in the House, but was left off the final version of the bill to which it was amended thanks to a legislative maneuver by the senate author (who incidentally was defeated in a primary and is not coming back - Adios, John Carona!).

The interim charges on electronic privacy in the Texas Senate State Affairs Committee that looked so promising when David Dewhurst announced them are now in limbo and nobody knows when or even if there may be hearings. Heck, nobody knows who would even call such hearings. State Affairs Chairman Robert Duncan was appointed to be chancellor at Texas Tech, vacating his seat, which awaits his replacement via special election. The vice chair, Robert Deuell, lost his primary and probably isn't real motivated to aggressively pick up the mantle. Dewhurst could appoint someone else, but he's a lame duck, too. And with elections in November, there's not a lot of time for someone to come in new and start from scratch - these aren't the only issues on the committee's plate.

So, while State Affairs staff is working on the interim report (because somebody has to), there may be no interim hearing unless a few senate dominoes fall in the near future, I'm disappointed to report. Nobody knows anything for sure. But even if the State Affairs Committee remains temporarily dormant, electronic privacy issues are bubbling up in the news almost daily and the Lege can count on being asked again to address them next year.

Thursday, June 12, 2014

Alcala: Texas judiciary fails to protect constitutional right to interpreters for non-English speakers

"It seems that, despite the great strides that Texas's criminal-justice system has made in ensuring that all people will have fair trials, for every two steps forward there is one step back," Judge Elsa Alcala at the Texas Court of Criminal Appeals wrote in a dissent issued this week lamenting the failure of the high court to enforce defendants' right to an interpreter. Chuck Lindell at the Austin Statesman has an article on the case (June 11). His coverage opened:
In an unusually blunt condemnation, Texas Court of Criminal Appeals Judge Elsa Alcala rebuked her court Wednesday for endangering the rights of non-English speakers and for being “a stumbling block in the path toward a better criminal-justice system.”

The case that riled Alcala, and two fellow judges who joined her fiery dissenting opinion, involved Irving Garcia, who is serving a 20-year prison sentence for fatally shooting a man about a dozen times outside a McAllen shopping center in 2010.

Garcia, a Spanish speaker who doesn’t understand English, declined the trial court’s offer of an interpreter on the advice of his lawyer, who spoke Spanish and briefly summarized the testimony of 13 English-speaking witnesses for his client.

The problem, Alcala wrote, was that the trial judge and defense lawyer didn’t fully advise Garcia of his constitutional right to an interpreter, impeding his ability to confront the witnesses against him. Garcia, 25, should be granted a new trial with a full-time interpreter, she concluded.

Instead, six members of the court determined that Garcia’s murder conviction was proper. While defendants must be provided an interpreter if they cannot understand English, they can waive that right if desired, the majority determined.

Alcala, however, argued that Garcia’s lawyer, not named in the opinion, declined an interpreter during an off-the-record meeting at the desk of District Judge Bobby Flores, who failed to question Garcia about his choice. Had he asked, Alcala wrote, Flores would have learned that Garcia’s decision had been coerced by his lawyer, who claimed an interpreter would be a distraction that would hinder his ability to provide quality representation.

Defendants cannot waive a constitutional right through coercion, Alcala said.

By failing to uphold Garcia’s right to understand the legal proceedings against him, she added, the majority delivered a “smoke-and-mirrors” ruling that jeopardized the rights of an estimated 2 million people in Texas who, like Garcia, don’t speak English.
Alcala's statement about two steps forward, one step back was not just a general observation but also a specific comment on the provision of translation services in Texas courts:
The Texas criminal-justice system has recently taken two steps forward with respect to providing for language access in courts. First, according to the Office of Court Administration (OCA), the Texas Legislature has recently provided funding for a Language Access Program to "help reduce linguistic barriers to meaningful justice in Texas courts." Second, as of April 2014, the "Texas Court Remote Interpreter Service (TCRIS) has now completed four months of successful operation, responding to requests from 52 judges in 39 counties for 157 hearings, for quality Spanish interpretation by licensed court interpreters." Despite these two steps forward to provide language access for non-English-speaking defendants in court, this Court's majority opinion takes the Texas criminal-justice system one step back in this regard. Here, although an interpreter was actually present in the trial court ready to provide his translation services for appellant, the trial court did not use him to translate for appellant, not even to ask appellant if he knew he had a right to an interpreter, if he wanted to waive one, and if so, whether his waiver was being made intelligently, knowingly, and voluntarily. Regardless of any steps taken by the Legislature and the OCA to provide language access for defendants in court, this Court will continue to constitute the stumbling block in the path toward a better criminal-justice system in Texas until a majority of the judges on this Court consistently enforce the federal constitutional right to an interpreter.
Alcala concluded that "This is not a problem caused by a lack of funding or inadequate access to interpreters, but is instead one that implicates a judicial failure to enforce federal constitutional rights."

Correa: Time to adjust Texas drug laws

Ana Correa at the Texas Criminal Justice Coalition had an essay this week in the Texas Tribune's "TribTalk" section titled, "It's time to reform Texas' drug laws." In particular, she argues for lowering penalties for possessing user-level amounts of marijuana (to a Class C misdemeanor) and less-than-a-gram of harder drugs (to a Class A misdemeanor) to save incarceration costs and focus more on treatment for people whose main crime is their addiction. The article closes:
For drugs other than marijuana, possession of less than a gram — the equivalent of less than a sugar packet — is a state jail felony in Texas. This saddles convicted men and women with a lifelong felony record, limiting their access to housing, employment and other assistance. Texas could reduce the charge to a Class A misdemeanor, punishable by up to a year in a local county jail. Such a change would relieve crowded felony court dockets and save Texas millions in state prison spending, a percentage of which could be reinvested in county programs to address substance abuse.

Most individuals charged with felony possession crimes are not high-end drug dealers but petty users, often with substance abuse problems, whose behavior won’t be altered by prison time. Michael McSpadden, a Republican and longtime district court judge in Harris County, believes these penalties should be reduced. McSpadden and 11 fellow Harris County judges last year sent a letter to the chairman of the Senate Criminal Justice Committee saying that “the public has realized that draconian punishment of minor drug offenses as state jail felonies is not working, and as judges, we hear countless complaints from trial juries and grand juries who do not believe these cases should be tried as felonies.”

Texas’ punitive drug laws are out of sync with the public’s views and are costing state and local governments more than could possibly be justified by any public safety-based cost-benefit analysis. Adjusting these penalties would reduce the burden on taxpayers and let police and courts focus on more serious crime, better protecting everyone.

Wednesday, June 11, 2014

'Right on Crime' seeks world domination

Did you do as much last month as the conservative Texas Public Policy Foundation and its Right on Crime campaign to combat overcriminalization and mass incarceration? (See their newsletter.)

If not, shame on you. Work harder. Here's video of former U.S. Attorney General Ed Meese praising them at a "leadership summit" in Washington D.C. in late May, along with the ubiquitous Newt Gingrich, and former Virginia Attorney General Ken Cuccinnelli. The gathering even received a video message from Texas Gov. Rick Perry, who gave Marc Levin a by-name shout out. (The event was covered by TIME magazine, Huffington Post, and CNN, among others. Richard Viguerie spoke favorably of the movement on C-SPAN's Washington Journal. And anti-tax activist Grover Norquist published a joint column in Time magazine with Move-On co-founder Joan Blades calling for a reversal of mass-incarceration policies.

Some newsletter, huh? Congrats, Marc and Co., on the continued success of this unlikely pursuit.

In April, Right on Crime's Marc Levin tag-teamed with Ana Correa from the Texas Criminal Justice Coalition to give a forum conducted by the Legislative Budget Board a Right-Center perspective of what criminal justice may look like next session. See their presentations here (pdf).

Why restrict using asset forfeiture fund for drug treatment?

Random bill idea: I was looking up something unrelated in Chapter 59 in the Texas Code of Criminal Procedure on all things asset forfeiture and noticed this odd restriction at 59.06(j): "the director of a state law enforcement agency may use not more than 10 percent of the amount credited to the special fund of the agency under that subdivision for the prevention of drug abuse and the treatment of persons with drug-related problems."

Why restrict spending on drug treatment to 10 percent of asset-forfeiture funds if the local agency wants to spend more? And, one wonders, where did the 10 percent figure come from? That subsection should be deleted during the 84th Texas Legislature or at least the percentage raised. That's exactly the sort of thing for which asset-forfeiture income should be paying, if we're going to have it at all.

Does anybody know why this restriction exists? If so, please enlighten us in the comments.

And speaking of asset forfeiture, Forbes recently (6/5) published a story titled "Cops in Texas seize millions by 'Policing for Profit'." The article opened:

Monday, June 09, 2014

Few states following Texas to defy prison-rape regs

Emily DePrang at the Texas Observer recently had a story ("Rick Perry fails to get many governors to defy prison rape law," May 30) about Rick Perry's limited influence among his fellow governors. In a letter to US Attorney General Eric Holder, he'd vowed to to rally other governors to join him in opposing implementation of the Prison Rape Elimination Act. Four other states have also said they won't follow PREA, reported AP: Idaho, Indiana, Utah and Arizona. (NPR had a good national overview this week of how states are responding to PREA.)

Noting that the governor is not responsible for certifying facilities which aren't under his operational control, and that it's "not true" that “governors must certify their state’s compliance 'under threat of criminal penalties,'” DePrang had a sense, as I did, that, "The further you get into the letter’s nitty-gritty, the stranger Perry’s defiance seems." Part of the reason I've followed this story so closely (besides the fact that this blog broke it), is that there's something I don't understand going on, some unknown adviser, perhaps, who has influenced the governor. While regrettable, I tend to think non-compliance with PREA will eventually take care of itself at the federal courthouse. It's the inexplicable backstory to Perry's decision that keeps nagging at me.

MORE: From Off the Kuff.

See related Grits posts:

Jail poetry kickstarter funded

I received an email from Kelsey Erin Shipman - the creative writing instructor who teaches a poetry class in the Trafis County Jail - to say "thank you" to donors and report that the limited edition prison-poetry books by her students "will be printed and mailed in early July." She added, "I would like to offer a special thank you to contributors from Grits For Breakfast -- you all swept in and saved the day!" Her reference was to this Grits post promoting her kickstarter campaign in its dwindling hours. Readers of this blog responded, bumping the project well past her goal of $500 to finally close out at $821.

So, consider yourselves thanked, people. And thanks from me as well for helping her out. Well done.

Sunday, June 08, 2014

Tic Tac Toad and Red Ball Tripler: Your comment?

I'm not sure why it amuses me so much to see the Texas Lottery Commission publish rules for new lottery games in the Texas Register (May 30) for public comment, but it does. See:
I wonder if anyone ever makes comments like: "These odds suck!"? Or, "Why should I play if you're just going to dock the money for my child support?" Or, "Please stop telling people to give me lottery tickets at Christmas"?

Use Grits' comments to suggest other objections or comments people might make to the producers of new Texas Lottery games. If they're specific to these games, all the better. Alternatively, suggest criminal-justice themed names for Texas Lottery games. Be creative, people, give those lottery folks some options.

Indigent defense agenda packed

Looks like quite the full agenda (pdf) at next Friday's Texas Indigent Defense Commission wonkfest quarterly meeting.

Note to reporters: These meetings offer one-stop shopping for identifying statewide issues with local examples and often all the players in one room. Don't just cover the meeting, use the meeting to identify other issues to cover. Looking at this agenda, there may be a half dozen different stories of significance discussed next Friday that nobody really talks about anywhere else.

Criminal justice coverage would be a lot better in this state if just a couple of paid professionals were assigned to cover the significant, ongoing meetings of the relevant state agencies and legislative committees. Hundreds of writers weighed in on "affluenza," but there's a decent chance not one paid reporter shows up at next Friday's TIDC meeting.

Pressure to raise salaries for county jailers

Competition is driving up labor costs at county jails as well as state prisons. In the next budget cycle,  according to the Abilene Reporter-News, Taylor County commissioners will likely boost jailers' pay to attract more applicants for entry-level guard spots:
Those in the county’s “public safety” matrix whose current salary is less than $30,000 will be brought up to that amount.

The decision, primarily designed to both attract new employees to the jail and help with retention of those already employed, will draw from unspent salary and — if needed — contingency funds.

“We’re having trouble retaining people because they’re going elsewhere for higher salaries,” said Sheriff Ricky Bishop after the meeting, who said he hoped that the increase would make a difference in both retention and hiring.

The starting salary for a new jailer was $27,000, a recent salary increase over the $25,300 previously paid. Commissioners said Tuesday that $30,250 is the average salary for a jailer in four counties — Tom Green, Lubbock, Brazos and Wichita — comparable to Taylor.

Chief Jail Administrator Terrie Noret told commissioners Tuesday that the jail is down 15 employees, with two set to transfer to the Taylor County Sheriff’s Department. Employees typically work in the jail before taking on patrol duties.
So if the county is lucky, higher wages will help them fill 15 positions that presently aren't drawing a salary, adding half a million or so to Taylor's jail budget. Don't hire them, and you rack up overtime while contributed to low morale and a dispirited, overworked staff. It's a less-government conservative's nightmare.

Listen to CCA's latest integrity unit meeting, CLE for police

Here are a couple of notable resources from the website of the Court of Criminal Appeals' Texas Criminal Justice Integrity Unit:
The former is an audio recording of the TCJIU's May 1 meeting (see related Grits posts here and here). The 'Brady' video is a CLE prepared to help law enforcement comply with the Michael Morton Act. See also this repository of older recordings from the TCJIU.

Saturday, June 07, 2014

Speculating on Texas' pot policy timeline

The Baker Institute Blog at the Houston Chronicle recently posed the question "When will marijuana be legalized in Texas?" - IMO a bit of a presumptuous query but one optimistically explored in a link-rich post. Rob Kampia of the Marijuana Policy Project thinks Texas may legalize pot by 2019. Mark Jones of the Baker Institute thinks outright legalization couldn't happen until at least 2023. I agree more with Jones on the timeline, but not necessarily his reasoning.

Jones starts out okay, rightly observing that the two states which have moved to a legalize, tax and regulate model are both places where citizens can propose statutes on the ballot via referenda. We don't have that in Texas (thank heavens!). Whatever laws pass must win approval from both chambers of the Texas Legislature and a new sitting governor. As such, if it ever occurs, Texas' version of "legalization" will happen in stages over multiple sessions, not all at once as it might after a ballot initiative. Jones views the matter through a purely partisan lens, concluding:
In Texas, the legalization of the sale and consumption of marijuana would require the passage of a law. At least until January 2023, and quite possibly even after that date, Republicans will possess a majority of the seats in the Texas House and Senate. And for these Republican legislators, a vote in favor of drug legalization would have a negative impact on their probability of winning in the GOP primary. Finally, if and when Democrats return to majority status in the Texas Legislature, we should not expect the Democratic delegation to be unanimously in favor of marijuana legalization, at least not in the short to medium term. In sum, similar to Texans who today want to legally play the slots, blackjack or craps, Texans who want to smoke pot legally will, at least for the next dozen years or so, need to travel to another state or country to do so.
Where Jones' analysis goes south is his odd assumption that "legalization" or other drug-policy reform couldn't happen while Texas is run by Republicans. He thinks 2023 will be the first gubernatorial race Texas Democrats can win but cautions that pot legalization won't be high on their priority list. But that reading ignores divisions within the GOP that play out along the pro-free market, less-government, "Right on Crime" axis touted by the Texas Public Policy Foundation. There are Republicans in the Texas Legislature who are perfectly comfortable suggesting the state reduce criminal justice costs by reducing the number of things we criminalize.

Jones doesn't appear fully aware how much criminal-justice reform legislation has passed since the GOP first came to power in Texas. Heck, often advocates themselves have been surprised, both by reforms that inexplicably had legs and more modest proposals that seemingly couldn't buy a break. Any Bayesian prediction of the odds must be moderated by the rodeo truism: There's never been a horse that can't be rode, never been a cowboy can't be throwed. A fractured, ultra-conservative GOP presents opportunities for peeling off factions, much like when Democrats controlled Texas as a one-party state a generation or two ago.

Grits believes framing the debate in terms of "legalization" does a disservice to the much-more moderate proposals likely to actually make it out of committee in 2015. In the near term, the issue isn't so much "will Texas legalize" but "will Texas reduce penalties for low-level pot possession?" Right now, possession of less than two ounces of marijuana is a Class B misdemeanor in Texas, meaning in theory the defendant faces a threat of up to six months in the county jail. Because the defendant's liberty is at risk, the county must pay for an attorney if they're indigent. Changing low-level pot possession to a Class C fine-only offense - or, some have suggested, a non-criminal "civil" citation akin to those given out by red-light cameras - would move low-level non-violent offenders out of the jail, save counties money on lawyers, and possibly even generate a new stream of fine revenue from future ticket writing.

There are probably 76+ votes in the Texas House of Representatives right now for making possession of less than 2 ounces of pot a Class C, ticket-only offense. In fact, that's been true for several sessions. In the past, though, House leadership, both under Speakers Tom Craddick and Joe Straus, have been loathe to allow members to take a floor vote. Somehow get the measure out of the Calendars Committee and before the members and I think Mr. Jones may be surprised that more than a few House Republicans would vote for penalty reduction.

It's possible the 21 votes needed to reduce pot penalties could be found in the Senate, too, but not at present to "legalize." Ironically, it'd be easier to get the penalty-reduction measure through the Senate if, say, a Lt. Governor Dan Patrick were to get rid of the 2/3 rule and require only 19 (out of 31) votes to get a floor vote, as he's sometimes discussed.

Texas would do well to get that far (reduce penalties to a Class C for less than 2 oz) by 2017 or '19; next year would be possible but optimistic. Whenever it happens, that would be a huge get. From there, to me it depends on what happens in Colorado and Washington. If it turns out to be no big deal and a new source of tax revenue we're just missing, legalization by 2023 is perhaps on the outer edge of possible. That's not because Democrats might be back in power by then but because the Lege will covet the money and public opinion is rapidly changing. On the other hand, if there's some horrible, unforeseen harm that befalls those states, that might push things back. Any prediction on such matters beyond a five year time horizon IMO is tantamount to fiction writing.

Texas could eventually alter its marijuana policies to the point where they could be dubbed "legalization," but only after a series of false starts, half-measures and incremental steps that will each take time to pass and implement. It's not uncommon for far less controversial legislation to take two or three sessions (4-6 years) or more to pass. And marijuana bills will not fly under the radar.

Bottom line, I agree with Jones' first three points but not his last two. It's definitely significant that Texas does not have initiative and referendum and must pass any new law through the legislative process. That means marijuana reform likely must pass in stages, not in one fell swoop. OTOH, that doesn't mean it's impossible under Republican rule, just that Republicans must be split on the issue. And lo and behold: They are.

Thursday, June 05, 2014

The Michael Morton Act five months in: Too much? Too little? Too soon to tell

The Texas Tribune's Terri Langford last week had a brief overview (May 29) discussing implementation of the so-called Michael Morton Act, which readers will recall was Texas' open-file discovery statute for prosecutors in criminal cases. The big complaint: "Prosecutors say the [law] ... is driving up evidence costs." The article closes with this summation of perceived flaws of the Michael Morton Act according to the sources in Langford's story:
There have been some kinks to work out, though. Besides the cost, there are questions about measures in the Morton law that prevent criminal defense attorneys from disclosing some information to their clients. The law prevents lawyers from disclosing certain information, primarily to protect victims. A motion has been filed in a Lubbock case that claims the Morton Act violates a defendant's Sixth Amendment right to effective assistance of counsel because preventing full disclosure impedes a thorough investigation.

And back in Dallas County, the law has raised questions about whether prosecutors should get more access to grand jury transcripts. 

Brad Lollar, a Dallas County public defender who is defending a client charged with capital murder, said the district attorney is fighting his request for a grand jury transcript.

Defense attorneys are not permitted in grand jury proceedings. But they can ask a judge for transcripts of the prosecution witnesses' testimony before the grand jury.
Defense attorneys must prove that they have a "particularized need" for the information. Lollar argues that because a transcript of any witness testifying before a grand jury could potentially help his client, the particularized need requirement has been expanded by the Morton law.

“We routinely request grand jury testimony in our pre-trial motions. That is routinely granted by the judges,” Lollar said. “I think they are concerned that the Michael Morton Act will require them to turn over grand jury transcripts across the board, if [transcripts] exist. We’re saying a reading of the Michael Morton Act will require that.” 

Kepple said his reading of the new Morton law says it does not “disturb” the protections of grand jury secrecy already in place.

“I would argue that grand jury testimony is still covered under the same rules beforehand,” he said. 
Grand jury testimony, though, is not specifically addressed in the Morton law, so lawmakers may re-examine questions about access to it during next legislative session.
Those aren't the only hiccups, though. For a few more examples, let's return to Grits' notes from the May 1 gathering of the Court of Criminal Appeals' Criminal Justice Integrity Unit (TCJIU), reviving a few aspects of the event that didn't make it into my earlier writeup from the meeting.

Judge Barbara Hervey and others expressed concern that, while prosecutors are responsible in the courtroom for revealing exculpatory information held by any arm of the state, folks like crime-lab employees or local police may not fully understand that the state is responsible for revealing every detail of their work. For example, said Hervey, some agencies have begun scanning officers' written field notes and attaching them to incident reports while others have been resistant, fearing the notes and the report may contradict. Calling these debates "fallout" from the Michael Morton Act, she suggested that the Texas Commission on Law Enforcement expand training for police officers on Brady/Michael Morton Act obligations as well as report writing. She also suggested that crime lab workers receive similar training, which in my experience is sorely needed.

Another Brady issue raised but left unresolved from the TCJIU meeting: Many if not most District Attorneys keep a list of police officers in their jurisdiction who have had disciplinary problems that might impeach them as witnesses on the stand. In Harris Tarrant County this has been dubbed "the pink list," while in other counties DAs call it a "do not sponsor" list. The problem: Police departments sometimes fail to notify DAs of significant disciplinary actions. Worst case outcome for the state: The information is discovered independently by defense counsel and sprung on prosecutors at some critical point in the process. El Paso DA Jaime Esparza told the integrity unit that information on his county's version of a do-not-sponsor list often comes from defense counsel.

In non-civil service cities (the biggest are Dallas and El Paso), incomplete reporting about police disciplinary histories would eventually backfire because the bulk of disciplinary files are open records under the Public Information Act. So often defense counsel can independently find them, if they try. But thanks to 1989 amendments to the statute, the +73 cities which have adopted the state civil service code now keep two personnel files: A public one where they keep commendations and brief summaries of disciplinary actions (defined as suspensions or demotions), and closed files that include most workaday disciplinary violations and potentially other information that arguably should be turned over to the defense under the new discovery law.

If those lesser violations include, for example, confirmed allegations of lying, does the Michael Morton Act trump the civil service code? How much of the second, secret personnel file must civil service departments reveal to prosecutors or for that matter defense counsel? At the moment, that's being interpreted differently by different departments. And that doesn't even take into account disciplinary actions against an officer by past law-enforcement employers: Even police human resource officers can't seem to crack that nut.

At the TCJIU, panelists mostly suggested more training as the remedy for most Michael-Morton-Act related complaints they discussed, and for now, I agree. It's too early yet to tell if the law needs to be "fixed." By 2017-19, it'll be clearer exactly what is and isn't working with the Michael Morton Act. These issues will have either worked themselves out or wound themselves into a knot; the same is true for prosecutors' concerns about the law raised in Langford's story.

Whether one considers the Michael Morton Act too onerous or incomplete, the statute only took effect five months ago and Grits would argue that it's too early yet to talk about significant changes in the coming 84th legislative session. The Lege should give the law a couple of years to get its legs under it, for prosecutors and cops to train on it, for judges to rule on it, for appellate courts to interpret it, for analysts to study more than anecdotes, before looking to alter a law that at most needs tweaking.

CORRECTION/Ed. note: An earlier version of this post erroneously stated that Harris County maintained a "pink list" of police officers with significant disciplinary problems. It was actually Tarrant County.  My apology for the error and thanks to the commenter who listened to the TCJIU audio to do the needed factchecking. My bad. Lo siento.

Y MAS: Paul Kennedy has little sympathy for complaints with the Michael Morton Act.