Thursday, July 31, 2014

Roundup: Expensive jails, paid-for pols, broken grand juries, and flawed forensics

Here are a few odds and ends that haven't made it into full, individual posts since my return from Mexico City but which still deserve Grits readers attention:

This week in Cow Town: Hair microscopy and other forensic conundrums
The Forensic Science Commission will hold meetings of its hair and fiber microscopy panel (2 p.m.) and the Complaint Screening Committee (4:30 p.m.) in Fort Worth this afternoon, with its main, full committee meeting tomorrow morning. Go here for the agendas and a livestream of each event.

Contract jail scheme failed to turn profit because of high jailer pay
El Paso county commissioners say they have the most expensive jail in the state because of high jailers salaries that start at $37K and rise to $60K after eleven years, which is certainly the highest I've heard of in Texas. The county takes in $10-11 million per year in revenue for federal prisoners they house but can't turn a profit (I know Grits readers are surprised) because of high overhead costs.

John Wiley Price: Federal defendant
So much to say ... so little of it fit for polite company. In Dallas, county commissioner John Wiley Price has been arrested on federal corruption charges and hauled away in irons. He has been "indicted on 11 bribery- and conspiracy-related charges that allege that he took things of value to influence his vote on business matters," reported Texas Lawyer. Price for years acted as a self-appointed czar of the Dallas County Jail as well as the county bail bond board, so there's a particular irony in his present situation. I don't know much about the specifics of the feds' case against Price beyond published newspaper reports, but it'd be hard for any allegation to surprise me. The feds and Price have been dancing around the issue for years, so I'd be surprised if the US Attorney failed to come loaded for bear. If this fiasco ends with Price rising from the political grave, vampire-like - or worse, Messiah-like, stronger than before - it will balkanize and poison Dallas politics for years. So if they've got him, I hope it's dead to rights.

'Is the grand jury system broken?'
At Texas Monthly, Dan Solomon followed up on Lisa Falkenberg's reporting about grand jury misconduct with a short essay titled, "Is the grand jury system broken?" Good question. IMO the answer is, "There's no way to tell." Last session, state Rep. Bryan Hughes filed an unsuccessful bill to require recording of witness testimony in addition to suspects. That'd be a start, and even better would be for those proceedings to be recorded and turned over to the defense prior to trial, just like Brady material. At a minimum, the information should become public after conviction, like other materials in police and prosecutors' possession that becomes public under Sec. 552.108 of the Government Code when a conviction is final.

Rising law enforcement costs in Montgomery County
The Sheriff's office accounted for the bulk of a recent budget increase in Montgomery County.

Make death-in-custody reports more easily available
I wish the Attorney General would link copies of death in custody reports to the names on their macro list published on their website. It's all public record and doing so would make them a lot easier to use without wasting everyone's time with pointless bureaucracy. According to the list, there have 1,736 deaths in custody at TDCJ between 2005 and so far in 2014.

Consensus on privacy of cell-phone location records?
I agree we are approaching a national consensus that cell-phone location records should be private, but unlike this author I'm not sure all the evidence so far blows that direction. If the Texas and California Legislatures pass warrant requirements, it would be hard for SCOTUS to deny there's a significant national trend. The array of less populous states whose legislatures have so far acted may not yet count as a consensus, particularly when federal circuit courts are split on the question and mine in particular (the 5th) is on the wrong side of history.

A big advocate for bail reform
Times have changed when New Jersey Gov. and presidential hopeful Chris Christie feels politically comfortable getting out in front of bail reform. He wants to give judges discretion to deny bail based on dangerousness and to have most release decisions governed by risk assessments instead of the ability to pay a bondsman.

Wednesday, July 30, 2014

'Do border surges work?' For incumbent pols, but not really the rest of us

The Austin Statesman on Sunday published an extended investigative piece on Texas' beefed up border security efforts and posed the simple but controversial question: "Do border surges work?" The article tracks several themes examined on Grits earlier this month about the lack of articulable goals or success metrics for an expensive, open-ended deployment which now includes not just Texas DPS but 1,000 National Guard troops, all of which so far is being paid for, un-budgeted, out of the state's general fund.

Government claims victory both when seizures go up and down, making the metric meaningless for evaluating whether taxpayer money is well spent funding "surge" efforts. The authors attempt to apply a normative analysis based on the facts and interests at stake and concluded there's little evidence Texas boondoggle border surges are helping the problems they're ostensibly aimed at resolving. All these troopers and soldiers arrive at the border with no obvious jurisdiction or meaningful role to play.

Still, the bottom line answer to "Do border surges work" is "Yes," though not for the reasons one might think. Certainly they're not thwarting illegal immigration, drug smuggling, nor maximizing the state's bang for the buck fighting crime. But those expectations misunderstand what's really going on with this latest round or border security spending.

Like its predecessors dating back to Operation Linebacker, recent surges by state and local law enforcement, much less by the National Guard, are nothing more nor less than expensive political theater. Border surges "work" not to reduce crime at the border but to allow Texas pols to claim they're "doing something" about the illegal immigration since Obama won't fix the problem. Never mind that their actions also won't fix the problem and may worsen it. Or that state leaders have prioritized a politicized "surge" over road maintenance. Or that a purely martial response ignores the real and immediate humanitarian crisis facing children from Central America who're piling up like kindling in Texas-based detention facilities. The meme plays well to portions of the GOP base and in the near term, to win an election, ginning  up the base matters a lot more than the truth. As long as that dynamic holds, we'll see more border surges because incumbent politicians have seen they "work,"  at least for purposes of political expediency, though not because they make us one iota safer.

What would it mean for border security to really "work"? Grits has argued in the past that any new border security funding should go first to pay for expanded Internal Affairs capacity (or maybe some sort of anti-corruption unit) to rein in bribery and collusion with drug runners among border law enforcement that contributes to the chronic, intransigent nature of the problem. Just paying overtime for more vehicle patrols, in the end, won't accomplish much.

Meanwhile, Politifact took on questions about a purported crime wave by "criminal aliens" touted by Attorney General Greg Abbott and Governor Rick Perry to support the border crackdown. I'm not a fan of Politifact. I think their only two ratings with any real meaning are "True" and "Pants on Fire." But lo and behold, they gave a "Pants on Fire" rating to Gen. Abbott for asserting that about 3,000 murders in Texas could be attributed to lax border security, calling the claim "incorrect and ridiculous." They also gave a "Pants on Fire " rating to Gov. Perry for similar overstatements a couple of weeks prior for claiming a phony Mexican murder wave. Of course, in the real world immigrants - legal and undocumented alike - commit crimes at very low rates compared to American citizens. But one wouldn't want to let facts interfere with one's opinions, so instead we must witness the disgraceful spectacle of the state's top politicians bearing false witness to pander to the nativist wing of the GOP base.

Another, accompanying article from AP posed the question: "Lawmakers: Is beefed up border security worth it?" with the additional National Guard troops announced while I was out of town (in Mexico City, ironically), Texas is now spending $4.3 million per week out of un-budgeted general revenue to support DPS' and the National Guards' expanded presence, perhaps indefinitely. That's nearly a quarter-billion dollars per year if it goes on that long. I know people have short memories, but those who can recall at least back to the George W. Bush governorship should understand why sending soldiers to the border is as likely to end tragically as to improve things. 

Increasingly I wonder if much of the extra hype we're seeing about the border from state leaders isn't intended as a pre-emptive counter to House Speaker Joe Straus' stated desire to stop spending state highway money on DPS and spend it on roads and transportation instead. By getting him to commit to this extra spending before session even begins and Straus can appoint a new budget chair (Adios, Jim Pitts!), the Speaker seems to have been outmaneuvered, ensuring money from the state highway fund will continue to be siphoned to DPS, perhaps even in increased amounts. Col. McCraw and his allies knew better than to let a crisis go to waste and seized on the humanitarian plight of Central American kids to justify proposing a much more militarized southern border.

That's my best guess as to the larger chess match being played here, with all the overheated border security rhetoric that's dominated the public debate a convenient smokescreen for DPS and its allies hoping to stave off budget cuts if their highway money goes kaput. Now it's the Speaker's move. He can acquiesce, or insist after some respectable interlude that DPS prioritize and cut other spending in its budget to cover the cost. That'd be a Hail Mary, though. He'd need a strong Republican Senate ally (or a governor with line-item veto power) to pull himself out of the corner he's been backed into.

Regardless, that to me seems like the Speaker's only option, besides giving up his quixotic push to spend highway funds on highways before it ever properly got off the ground.

Monday, July 28, 2014

Dallas man exonerated via testing rape kit backlog

While I was on vacation in Mexico last week, Texas saw its first exoneration in which the District Attorney proactively tested samples from rape kit backlogs and the exoneree had pled out, long ago served his time, and was not actively sought DNA testing. Reported Mark Berman at The Washington Post (July 25):
In 1990, Michael Phillips was convicted of raping a 16-year-old girl at a motel in Dallas, Tex., where they both lived. Phillips pleaded guilty because, he said later, his attorney told him that as a black man who had been accused of raping a white teenager, he should try to avoid a jury trial. He went to prison for a dozen years and, after his release, spent another six months in jail after failing to register as a sex offender
Now, nearly a quarter of a century after he was convicted, Phillips’s name is being cleared. And, in an unusual twist, he didn’t even realize it was happening.
Hundreds of people have been exonerated through DNA testing, with 317 such post-conviction exonerations since 1989, according to the Innocence Project. This week, the office of Craig Watkins, the Dallas County district attorney, announced that Phillips, 57, was going to join their ranks.
Phillips, though, was not aware that DNA testing was going to prove his innocence, nor was he seeking such tests or pushing for an exoneration. He is the first person exonerated by a prosecutor’s office without doing these things, according to Watkins’s office and the National Registry of Exonerations.

“This is different from other exonerations…in a very important way,” said Samuel R. Gross, editor of the National Registry of Exonerations and a law professor at the University of Michigan. “The man who was exonerated, this wasn’t on his mind. He wasn’t thinking about it, he hadn’t thought about it.”

Instead, the first he heard about it was when someone from the Conviction Integrity Unit contacted him, Gross said. That unit was established by Watkins’s office in 2007 to review and investigate claims of innocence and other old cases.
It seemed inevitable that testing rape kit backlogs would reveal some innocence cases as well as help identify assailants in under-investigated rape cases. Maybe now that Watkins has broken the ice, other DAs will feel more comfortable testing for possible exonerations as well as to identify new suspects in cold cases. Congrats and good luck to Mr. Phillips, for whom it must feel like Christmas in July.

Saturday, July 19, 2014

A glimpse into grand jury misconduct

Lisa Falkenberg at the Houston Chronicle has posted a four-part series describing abusive interrogation by a grand jury so intense it may cause a capital murder conviction in a police officer's death to be overturned. Teaser: Anthony Graves plays a pivotal, on-the-ground role:
The episode provides a rare glimpse into the grand jury system: "Appellate attorneys were so outraged by a 146-page transcript of [Ericka Jean] Dockery's testimony before the 208th Harris County grand jury on April 21, 2003, that they entered it into the public record for judges to review." In the transcript, wrote Falkenberg, "grand jurors don't just inquire. They interrogate. They intimidate. They appear to abandon their duty to serve as a check on overzealous government prosecution and instead join the team." For example:
"If we find out that you're not telling the truth, we're coming after you," one grand juror tells Dockery.

"You won't be able to get a job flipping burgers," says another.

Dockery tells the group that if she believed [Alfred Dewayne] Brown actually killed people, she'd turn him in herself: "If he did it, he deserves to get whatever is coming to him. Truly," she says.
Ms. Dockery changed her story "after being told again and again to think about her children." The grand jury foreman told her he didn't believe her original story and, if she persisted in committing perjury, "you know the kids are going to be taken by Child Protective Services, and you're going to the penitentiary and you won't see your kids for a long time." Eventually she caved, told them what they wanted to hear about her boyfriend, then she was prosecuted for perjury for diverging from her original story. Her testimony was central to his conviction which sent him to death row. Ugly stuff. The trial judge recommended Alfred Brown receive a new trial but the Court of Criminal Appeals has sat on the case for more than a year without a ruling, Falkenberg reported.

Read the whole thing; it's very good and brief excerpts don't do it justice.

MORE: From Dan Solomon at Texas Monthly.

Thursday, July 17, 2014

All Ten: DPS now fingerprinting every driver at renewal

Reversing a decade long policy implemented after the Texas House shot down the idea in 2003, the Texas Department of Public Safety earlier this year began taking all ten fingerprints of drivers when they apply for a license or a renewal. Previously they required only a thumbprint or an index finger if for some reason a thumbprint couldn't be taken.

But the Dallas News' Dave Lieber reported (June 7) that DPS license facilities now require drivers to give them all ten fingerprints, a policy change that took effect earlier this year with no publicity from the agency.

Long-time readers may recall that DPS sought similar authority back in 2003 and was smacked down by the Texas House. In 2004, Grits wrote a post titled "Why would they want all ten fingerprints?," and the question remains. Surely no more than a thumbprint would be required to prevent license fraud?

No, the real issue is they want to run fingerprints against state and national criminal databases. At first, DPS spokesman Tom Vinger told Lieber “As a point of clarification, fingerprint information collected at driver’s license offices is not run against the national fingerprint database. This is not authorized by the federal government or state statute.” But soon he changed his tune. A month later, Lieber quoted "DPS spokesman Vinger say[ing] the system has already led to the capture of three individuals wanted for crimes."

At The, Jon Cassidy assessed this development in a way that jibed with my own recollection of where this issue had been left: All ten fingerprints is overreach. Did they think no one would notice? This idea was shot down in the Texas House 111-26 back in 2003 and I doubt it'd fare any better now. The Lege should take the opportunity next spring to reverse this decision, if DPS doesn't, and order the agency to expunge all but a thumb or index fingerprints for each driver.

That took a lot of chutzpah.

Immigrants (still) arrested at very low rates

A reporter pointed me to this page on the Texas DPS website titled "Texas Criminal Alien Arrest Data" posting material that Col. Steve McCraw has been using to promote the state's beefed up border strategy. Check it out.

The data, though, lack context. Notice that the first chart is not to scale - arrests of "criminal aliens" are in fact a small proportion of the whole: Eight percent of statewide arrests is much lower than the 16 percent of Texas residents who are foreign born. The rest were "Non Alien Arrestees," in DPS' parlance, which I guess is how we now label "citizens." (In this context, "alien" includes both legal and undocumented immigrants.)

In any event, foreign-born residents account for sixteen percent of Texas' population but just eight percent of total statewide arrests, by DPS' data. That's not exactly a raging crime wave.

TM interviews SA4 lawyers

Michael Hall at Texas Monthly has posted an interview with Mike Ware and Keith Hampton who were named criminal defense lawyers of the year by the Texas Criminal Defense Lawyers Association for their role championing habeas corpus relief for the San Antonio Four. Check it out. And congratulations to both of them.

Crime and violence data from Texas prisons

New data out on Texas prison crime and violence from the TDCJ office of inspector general: Mike Ward at the Houston Chronicle reported last month ("Prison crime not dropping with the population," June 20) that, "New statistics obtained by the Chronicle show that 3,001 criminal charges have been referred against imprisoned felons since 2009. Another 584 charges have been referred against correctional officers. Those numbers generally appear to be holding steady so far this year, even as the number of inmates housed in Texas prisons has dropped during the same period."

Also, "93 correctional officers faced criminal charges last year for crimes inside prisons, ranging from bribery to theft to sexual assault to official oppression. That is down from a high of 154 in 2009, according to the statistics made available under the Texas Public Information Act." Also, Ward suggested:
If the rate of prison crimes is staying roughly the same, other statistics underscore that cell block conditions are not improving much – and may be getting tougher. In April, officers reported using chemical agents on unruly felons 403 times, compared with an average of 262 times a month last year. Some 104 offender assaults were reported in March, compared with an average of 85 a month last year.

Despite the currently lower population of Texas convicts – just under 151,000 were housed in the 109 state prisons this week, about 9,000 fewer than roughly a decade ago – [TDCJ inspector general Bruce] Toney and other prison officials said they do not expect the number of prison crimes to decline much.
In addition to the stats, Ward supplied this remarkable anecdote as evidence of increased violence in Texas prisons, in this case instigated by staff:
Officials and guards acknowledge that the new numbers underscore that the Lone Star State's maximum-security lockups are living up to their long-standing tough reputation.

A March 17 beating at the Gib Lewis Unit near Woodville, in deep East Texas, highlights that.
There, shortly after 11 p.m., seven men stormed into a prison cell and began punching the inmate inside, a convicted Tarrant County burglar serving a two-year sentence. "Beat his a--," the attackers shouted over and over, as they held the inmate by throat, according to an internal report of the incident obtained by the Chronicle.

This, however, was no usual prison beat-down: The attackers were uniformed prison guards, led by a veteran lieutenant and a sergeant.

Investigators said both supervisors have been fired, and all seven guards now face charges of official oppression. The reason for the attack was that the convict, who had a history of harassing jailers, earlier had threatened a female guard.

As for the convict, he was paroled last week after serving about nine months, they said.
Good report (read the whole thing), but I'd be cautious in interpreting any one year increase or decrease too strictly; these are relatively small numbers and changes could result from a variety of factors. E.g., TDCJ has cracked down on contraband cases but that doesn't mean more contraband is coming in than before, only that the agency is now making a greater effort to enforce the rules.

And as an aside, God bless Mike Ward. If anything ever happens to him, there won't be one reporter left in the state consistently covering agency-level issues at the Texas Department of Criminal Justice.

'Pandering to lurid curiosity': Professional journalism and crime coverage

From the new, proposed ethics code for the Society of Professional Journalists: "Avoid pandering to lurid curiosity or following the lead of those who do."

Without "pandering to lurid curiosity," would there even be a crime section?

Give the code a read. Use the comments to name Texas journalists you think live up to its provisions, or don't.

Wednesday, July 16, 2014

Paul Kennedy on Michael Morton Act waivers

Houston criminal defense lawyer Paul Kennedy provided ground-level perspective on the Michael Morton Act waivers defense counsel are being asked to sign as part of plea bargains:
The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.
Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.
I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.
Kennedy also makes a strong point about how those waivers might play out when future revelations call into question old convictions that could be challenged under post-conviction habeas corpus writs, concluding:
Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?
Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?
If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.
We've already heard claims from prosecutors that the Michael Morton Act's requirements are too onerous. When Lege committees begin to evaluate the new law in interim hearings, they should also hone in on the propriety and utility of these waivers, which is a developing issue for the criminal defense bar. But in both cases, as Grits argued when prosecutors' complaints surfaced last month, I still tend to think, "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." Big ships turn slowly and the Michael Morton Act was a major change in how Texas prosecutors do their business.

That's why, all told, my preference would still be for the Lege to leave the law alone in 2015. It's hard to tell right now which issues will ripen and develop and which ones may lose steam. Prosecutors' complaints of extra burden may dissipate once systems are in place. And waivers will inevitably be litigated up the judicial food chain, given time, and limits potentially placed on their broadness in that venue. Maybe we'll look up in a couple of years and it will all have worked itself out. Or, if not, the Lege can have more time and track record to judge when deciding how to tweak this groundbreaking law.

Tuesday, July 15, 2014

How long should cops get to jail people without charges?

Here's a messed up story for you. If you've been arrested in Dallas but police haven't told you why, for the past quarter century officers had three business days to "to figure out what to charge an arrested person with and get the paperwork in, not including the day you were actually arrested," according to Amy Silverstein at the Dallas Observer's UnFair Park blog (July 1):
Sure, you can bond out of jail much sooner than three days if you have the money. Giving the cops a deadline, however, helps ensure that all defendants get treated fairly, at least according to the district judges who created and upheld the rule in the first place. "It's just saying you can't hold someone in jail without a case file," explains Judge Rick Magnis, who as presiding judge of the Dallas Criminal Courts has tweaked the three-day rule slightly over recent years, allowing a full 10 days for crimes like murder and assault.

But [in June], the Dallas Police Department famously released a bunch of inmates who weren't supposed to go free, and now Chief David Brown is blaming that deadline policy as part of the problem.

The policy, officially called the dry writ, is putting "a real strain" on officers, Brown told City Council ...
The police department has brought up the same concerns to the District Attorney's Office. "They have expressed to us that they need more time to properly investigate and file cases," county prosecutor Ellyce Lindberg tells Unfair Park in an email.
DPD and Dallas DA Craig Watkins' office want to extend their deadline from three to seven days for all felonies, reported the Dallas News (July 10)  Even if cops miss the deadline, noted Silverstein:
That doesn't mean the cases against those inmates go away. Cops can still take their sweet time to file the charges, even with the inmates out of jail. The deadline is just a way to keep the county from holding broke people in jail indefinitely while cops figure out exactly what those charges are. It's for that reason that defense attorneys say the deadline policy as it stands is a sensible one.

"People that cannot afford to bond out are entitled to get their accusations that they face against them in a timely manner, not just sit there and wait for them to do it at their own leisure," says criminal defense attorney Jose Noriega, describing Brown's recent complaints about the policy as "disingenuous".

It's true that other counties in Texas are more lenient than Dallas, allowing cops more time to hold suspects before filing cases. But outside of the state, the rules are often more favorable to the suspects. In New York State, for example, suspects must be arraigned within 24 hours after their arrest thanks to a 1990 court ruling.
The suggestion that "other counties in Texas are more lenient than Dallas," it should be noted, is not universally accurate. In Houston, for example, charges are filed in a much more timely fashion. Indeed, according to our pal at the blog Life at the Harris County Criminal Justice Center, an officer must phone the on-call Assistant DA assigned to intake, describe the incident and get agreement about the proposed charge up front before even making an arrest. Then, a judge is available 24-7 and defendants are informed of the charges at a probable cause hearing that usually occurs less than 24 hours after being booked into the jail. Austin and El Paso also process cases much more rapidly on the front end.

According to the Dallas News (June 29), though, some other counties allow even longer waits than Dallas:
Fort Worth police, for example, take suspects to their jail and then Mansfield’s jail until the county accepts the charge. The jail charges the department for holding inmates for more than five days without filing criminal charges, Fort Worth police spokesman Sgt. Raymond Bush said. ...

Collin County Sheriff’s Lt. John Norton said the department will notify judges if no formal charges have been filed on felony suspects within 60 days. For misdemeanors, the time frame is 15 days or 30 days, depending on severity.

Bexar County requests case files within 20 days. But it’s not a hard-and-fast deadline, said Cliff Herberg, the county’s first assistant district attorney.
Even so, Dallas' presiding District Judge Rick Magnis told the News (June 23) that
the time-limit policy is “what makes America, America.”

“The law is real simple,” Magnis said. “The Constitution in America says you can’t hold people without charges.”
This is an example of inefficiencies at the beginning of the process creating extra costs throughout the system, from an over-full jail to bloated court dockets. If much-larger Harris County can figure this issue out, there's absolutely no reason Dallas police and prosecutors need seven days to work out charges in routine cases.

Friday, July 11, 2014

Summer reading: 'Getting Life,' 'The Wrong Carlos'

Two important books about Texas innocence cases were published this week.

Texas Monthly's Pam Colloff has published some excerpts from Michael Morton's new autobiography titled "Getting Life," which came out Tuesday. The passages Colloff shared seemed well-written, e.g.:
prison is, more than anything else, a bureaucracy—a state-run operation where everything takes longer than it should, requires several tries before getting it right, and keeps the people who rely on it frustrated and angry. Imagine living every day at a state driver’s license office, with long lines, misfiled forms, and—too often—in­competence. Now, imagine that same scene with all the state workers carrying cans of Mace, radios, handcuffs, and—for those employees ringing the perimeter—shotguns and rifles.
Also out this week: "The Wrong Carlos"; from the Amazon description: "In 1989, Texas executed Carlos DeLuna, a poor Hispanic man with childlike intelligence, for the murder of Wanda Lopez, a convenience store clerk. His execution passed unnoticed for years until a team of Columbia Law School faculty and students almost accidentally chose to investigate his case and found that DeLuna almost certainly was innocent. ... Everything that could go wrong in a criminal case did. This book documents DeLuna's conviction, which was based on a single, nighttime, cross-ethnic eyewitness identification with no corroborating forensic evidence. At his trial, DeLuna's defense, that another man named Carlos had committed the crime, was not taken seriously."

Judge questions pot policy

In my email box this morning was a note from Senior District Judge John Delaney from Bryan, Tx who offered up the following questions and observations, which I submit for Grits readers' consideration:
Here's an article about an estimated 15,000 marijuana plants with a street value of $7,500,000.00 found growing in northeast Washington Co., TX.

Makes one wonder:

1. Since this is a recurring story, just how much more of the stuff is growing in the woods of Texas?
2. Obviously there's a demand for the product or people wouldn't be growing it.
3. Law enforcement appears incapable of preventing this activity.
4. What will it cost in tax dollars to pull up 15,000 plants and destroy them?
5. Who are the  people in charge of this grow (and others), what other criminal activity are they engaged in, and at what cost to us?
6. Is their power growing or remaining relatively constant?
7. What if, instead of destroying this valuable crop, the law allowed it to be grown and sold legally and taxed?
8. Could we reduce the power of the criminals who provide this product by competing with them legally, like we did by ending Alcohol Prohibition?
Certainly Judge Delaney isn't the first to pose such questions, but they're good ones nonetheless. As Grits wrote last month, I can't imagine the Texas Legislature moving to end pot prohibition in their next session or two, though reducing penalties for user-level possession is a strong possibility. However, we're already witnessing a diffluence of opposition to legalization in opinion polls. Once everyone has seen how it has played out in Colorado and Washington state, particularly in terms of increased revenue, the terms of debate surrounding marijuana could change quite quickly.

Thursday, July 10, 2014

Texas ranks near bottom in per-inmate healthcare spending

Here's a remarkable chart from the Pew Charitable Trust depicting the increase and, in Texas' case, the reduction in prison health care spending from 2001 to 2008:

Now, Texas has increased healthcare spending since that time frame, but we still rank among the lowest among states in per capita health spending on inmates in inflation-adjusted dollars:

Grits has watched with interest as the feds spanked California over inadequate prison health care and can't help but wonder if, at some point, the state may face similar litigation if the state doesn't either spend more on prison health care or reduce the prison population more to make the health budget stretch further.

Wednesday, July 09, 2014

Palau president defends John Bradley hire

Via Agence-France-Press, the President of Palau felt the need to explain the island nation's decision to hire former Williamson County DA John Bradley as a prosecutor in their Attorney General's office.
[President Tommy] Remengesau said Bradley acknowledged he was wrong to block the DNA testing and "is painfully aware that his actions kept an innocent man locked up for longer than he should have been".

But he said Bradley deserved a second chance and was seeking it in the island nation of 22,000 people, which is best known for its spectacular diving sites.

"Mr. Bradley says that the Morton case has changed him as a person and has made him a more balanced, fair, and humble prosecutor," Remengesau said in a statement.

He said Bradley had more than 25 years of prosecution experience and had never been found to have violated any law or ethical rule over the Morton case.

"The Republic hired Mr. Bradley because our nation needs experienced and skilled prosecutors to help keep our community safe Mr. Bradley fits that bill," he said.

Bradley is expected to start in his new role before Palau hosts the Pacific Islands Forum at the end of this month.
Hmmmm ... I thought Bradley had recanted his road to Damascus conversion rhetoric, but apparently it's a meme he still trots out when it benefits him, like in a job interview. Grits hopes it's true Bradley is a changed man and that he won't bring the same, misbegotten attitude and arrogance to Palau that he displayed as a prosecutor in Texas. OTOH, on the off chance he hasn't changed, I'd rather him perform that function on an island 8,000 miles away than here. Adios, JB. Don't let the door hit you in the ass on the way out.

MORE: A commenter chastised me for this post engaging in "snark." However, since I didn't consider this post particularly snarky, let's add some. I'd mentioned earlier that this story sounded like a bad sitcom plot. A friend of the blog emailed this morning to say, "I have a name for the reality show that Bradley will star in: Kangaroo Court. Or maybe Banana Republic. Can [Charles] Sebesta be in it too?" 

Imagine JB will be prosecuting in a place where more people speak Palauan than English, natives live in a matrilineal society, and at least some of them dress like this:

I located the job posting for Bradley's new gig on the Texas District and County Attorneys Association (TDCAA) website; for his sake, I hope $65K goes further in Palau than it does here.

For a nation of about 20,000 people, Palau has 145 cops, which seems like overkill until you realize they must cover around 250 islands that, according to Wikipedia, span an area of ocean the size of France. One of the big crimes they're focused on is illegal fishing with dynamite. A State Department report mentioned that, as of 2012 in Palau, "There were 51 prisoners, including one woman and one juvenile. The prison can hold up to 80 prisoners." During his Williamson County days, Bradley's shop would have filled up that prison in a week or two, so this new scenario will be quite a change of pace for TDCAA's 2009 Prosecutor of the Year.

AND MORE: Here's a statement from Palau's president on the hiring.

Monday, July 07, 2014

Texas' paltry mental health infrastructure strains justice system

There's been lots of MSM coverage over the last month regarding mental health and the Texas criminal justice system. Here are several articles I've run across that merit readers' attention:

State bar: 'Just cause' to think prosecutor Charles Sebesta commited misconduct

Charles Sebesta, the former Burleson County District Attorney who withheld evidence in Anthony Graves' 1994 capital murder case, may finally face disciplinary action by the state bar. But regrettably proceedings will be held in secret. Here's Texas Monthly's Pam Colloff describing the latest development:
It’s been eight years since the Fifth Circuit Court of Appeals found that the DA who prosecuted Anthony Graves for capital murder had done something unconscionable : withheld favorable evidence and used false testimony to secure a conviction—a conviction that sent Graves to death row.

Since that federal ruling came down in 2006, granting Graves a retrial, many good things have happened: Anthony was freed from prison in 2010, after all charges against him were dropped; he was formally exonerated by the State of Texas; and he received $1.4 million in compensation for the eighteen years he spent in prison for a crime he did not commit. But the man who secured his 1994 conviction—former Burleson County DA Charles Sebesta— never faced any consequences.  The state bar took no action against him. Even when he continued to impugn Graves’ character, telling Texas newspapers as recently as this January that Graves was guilty of murder,  he did so with impunity.

Finally, last week—twenty years after Graves’ wrongful conviction—the bar took a small but significant step toward ensuring that Sebesta would have to answer for his actions. The bar’s chief disciplinary counsel determined that there was “just cause” to believe that the former prosecutor had engaged in misconduct in Graves’ case. This finding followed a lengthy investigation, which the bar conducted after Graves brought a grievance against Sebesta this March. (Graves was only able to do so because lawmakers recently passed Senate Bill 825, which changed the existing statute of limitations, allowing exonereees to file such grievances with the bar up to four years after their release from prison.)

A legal proceeding will now follow, in which the bar will decide whether or not to dismiss the grievance, or sanction Sebesta. If the bar decides to sanction him, he could receive a punishment as light as a reprimand—essentially a slap on the wrist—or as severe as disbarment.

Though Sebesta has always put great stock in trying people before the court of public opinion—to this day, he continues to insinuate on his website that Graves is a murderer —he has asked that the bar hear his case in a confidential proceeding, rather in than open court. (The bar allows attorneys who are the subject of such grievances to choose whether they will have their cases heard in a district court before a judge or jury, or privately, before a panel of lawyers who serve on the bar’s grievance committee.) “His conduct against Anthony Graves was in a public proceeding and he continues to make public attacks on Mr. Graves,”  said Kathryn Kase, executive director of the Texas Defender Service, a non-profit organization that represents Graves, along with attorneys in the Houston law firm Susman Godfrey. “He should defend his conduct in a public proceeding, for all to see.”

There’s no word yet on when the bar will make its determination about Sebesta. Whether or not the bar will take action at all still remains to be seen. Except for the recent disbarrment of Ken Anderson, the ex-Williamson County D.A. who prosecuted Michael Morton,  the bar’s track record for disciplining prosecutors has been abysmal. From 2004 to 2012, in 91 criminal cases in which the courts decided that Texas prosecutors had committed misconduct, not a single prosecutor was ever disciplined.
For a long time, Sebesta has claimed that the state bar's prior failure to discipline him meant he'd done nothing wrong. (E.g., "Had I withheld evidence in the Graves Trial, ‘sanctions’ would and should have been appropriate. But that did not happen and the State Bar of Texas obviously agreed with their dismissal of the grievance!") But the bar's stated reason for failing to take action was a four-year statute of limitations on older cases. Then, Sen. John Whitmire's SB 825, passed last year, changing the statute of limitations for bar complaints related to withholding exculpatory evidence. Now, exonerees have up to four years after their release to file a complaint, which is the provision that placed Mr. Sebesta in the crosshairs.

Grits would love to have been a fly on the wall when Sebesta received the news about the state bar's latest action. I bet the old man was apoplectic. But I wish the former prosecutor had opted for a public jury trial instead of hashing it out in secret. Charles Sebesta never hesitated to go public with his various allegations and insinuations about Anthony Graves, and what's good for the goose ...

MORE: Find below the jump a press release from the Texas Defender Service on the topic, including a statement from Anthony Graves:

Sunday, July 06, 2014

Crime lab misconduct, sex-offender residency, parole successses, and other stories

Hope you enjoyed a Happy Independence Day, Grits readers. Here are several items that didn't make it into independent posts last week but merit your attention:

Houston crime lab misconduct not caught by internal procedures
The Houston Chronicle reported (June 25) that Peter Lentz, the Houston crime lab tech accused of lying, improper procedure and tampering with an official record, was not identified by internal protocols but because, in February, he admitted the wrongdoing to two coworkers over drinks in a bar. MORE: From Paul Kennedy.

Texas civil commitment program melting down
The state's civil commitment program for sex offenders is imploding. The state plans to begin housing sex offenders in secure lockups because a halfway-house vendor is dropping its contract, citing public stigma and inadequate compensation. An attorney at the Harris County public defender told the Houston Chronicle that housing civil-commitment offenders in secure lockups is "clearly illegal." After all, they've already served their criminal sentences and are legally supposed to be undergoing outpatient treatment. Look for significant action on this topic next session, probably led by Sen. John Whitmire and Rep. Sylvester Turner.

'Getting Life': Michael Morton Memoir
Michael Morton has just published a memoir about his false conviction and imprisonment for the murder of his wife and the dramatic events surrounding his nationally publicized exoneration. See the Statesman's coverage.

Higher parole rate, fewer revocations account for leveling of Texas' prison pop
Insiders know that, despite the attention paid to Texas' 2007 probation reforms, the parole side has been the main reason Texas' prison population has leveled off and even modestly declined in recent years. Why? Via YourHouston News, Texas parole commissioner Lynn Ruzicka said new programming has facilitated higher parole rates for eligible inmates and lower revocation rates for parolees. For example, "Out of the inmates up for parole, 27-28 percent were released in 2001 while the current release rate hovers around 35 percent ... A 2 percent increase in approvals translates into approximately 1,500 additional parole releases per year and an annual savings of almost $26 million, a 2010 report by the Center for Effective Justice showed." Ruzicka specifically said, “The release rate is going up because of the programs we have.” Further, "parole revocation rates for parolees with active cases fell from 12.2 percent in 2001 to 8.2 percent in 2010, according to the Texas Department of Criminal Justice."

A lawyerly protest: Handing out cards
You don't see this every day:
More than a dozen of the city's best criminal defense lawyers converged Friday on the 11th floor of Houston's criminal courthouse to meet defendants and hand out bright yellow 3-by-5 cards explaining their constitutional rights.

It was part of a protest by the Harris County Criminal Lawyers Association against the way Michael Fields, a misdemeanor judge, handles initial appearances in his court.

"What he's doing is unethical, it's unconstitutional and it's illegal," HCCLA president Carmen Roe said after passing out several fliers. "When he starts trampling on the rights of defendants, that's when we get involved." ...

"We believe he's coercing defendants to either waive their right to a lawyer or enter a plea of guilty without their lawyer being present," said JoAnne Musick, a past president of HCCLA who was handing out fliers. "We've had complaints from people who asked for a lawyer and instead he handed them plea papers and had them enter a plea of guilty."

The judge, who denied any improprieties, said he changed his arraignment procedure earlier this year, a move that has generated the controversy. The Republican jurist has held the bench since being elected in 1998.
Paul Kennedy has called Judge Fields a "bully in a robe." Scott Greenfield provides more suitably outraged commentary.

Are compromised Van Zandt locks in other jails?
The Tyler Morning Telegraph posed the same question Grits asked in the wake of news about inmates compromising the locks at the Van Zandt County Jail: "Are the faulty locks in the Van Zandt County Jail in other jails?" For now, claims the paper, the surprising answer appears to be "no." "Executive Director of the Texas Commission on Jail Standards Brandon Wood said that as of now, the manufacturer does not seem to have that lock model in any other Texas jails, but they are still taking more time to confirm that, and see about locks in other states."
Wood said there are about three main manufacturers that make lock systems for jails in the state, but the company that made the flawed locks was not one of them.

“The type of lock that was installed, although it is comparable according to the manufacturers specifications to locks that are typically seen in Texas county jails, this was the first time we’d seen this manufacturer in the state,” Wood said.

Wood said even though the company was new, the locks it made met state standards.

For security reasons, Ray requested not to reveal the lock manufacturer’s name. Keeping that information away from inmates could stop them from trying to manipulate similar locks.

However, the locks with the faulty pieces seem to only be in one batch of one specific model. It doesn’t look like the manufacturer has locks from that bad batch anywhere else.

“We do not believe that any of those locks are in any other county jails, however we have issued a technical assistance memorandum and notification to the sheriffs to conduct a walkthrough of their own facilities and determine if they have any of those locks,” Wood said.

As every jail in Texas investigates its own locking system, the manufacturer in question is looking into any locks it has installed in other states.
They ought to publish the manufacturer's name. It's going to eventually come out, anyway.

Alleged civil service cheats indicted in Cameron County
Reported AP, "Eleven former and potential South Texas sheriff's deputies have been indicted in a civil service exam cheating scandal involving a cellphone image of the test."

Private prison focus: Immigration
The blog Texas Prison Bidness highlights documented troubles at five "criminal alien requirement" prisons in Texas covered in an ACLU report released earlier this month:
Forensics a 'decades-long experiment' sans scientific method
At Slate, Mark Joseph Stern picks up the meme that much forensic science isn't actually science, an uncomfortable fact made irrefutable by the 2009 National Academy of Sciences report calling for the application of the scientific method in forensic fields. He argues that, "Far from an infallible science, forensics is a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches."

Saturday, July 05, 2014

Simpson: Fourth Amendment needs belated protection

David Simpson, a small-l libertarian Republican Texas state rep from Longview, authored an Independence Day column in his local paper opining that the US Supreme Court's recent ruling in Riley v. California was "desperately needed when just about any occasion now is deemed reasonable to search 'persons, houses, papers and effects' without the restraint of first having to obtain a warrant, despite the Fourth Amendment." Noted Simpson,
Interestingly, the Supreme Court recalled some relevant history in the ruling about searching cell phones. In the last paragraph of its opinion, the court recalls the remarkable words and actions of our American patriots, James Otis and John Adams:

“Our Cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled ‘General warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there and he would later write that ‘[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.’” According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”
The op-ed ended with this remarkable conclusion:
Regrettably, instances of such abuse of government force are all too frequent today. Just think of IRS audits, DOJ gun-running, TSA groping, assassination of American citizens abroad and, more close to home, the issuance of “no knock” warrants authorizing military-like home invasions by police at all hours of the day or night — not for protecting people from imminent danger such as kidnapping or armed robbery, but for possession of controlled substances … or even raw milk.

As we celebrate our independence and give thanks for our nation’s freedom, let us remember it is not simply our civil servants, police, firefighters and military that have made us a great nation, but a restrained, humble and wise use of the power we have entrusted to them and our own responsible use of freedom as citizens. Ultimately it is the blessing of God which keeps us from treading on our neighbor and keeps us living within the bounds of our Constitution.
That may be the first time I've seen anyone publicly link IRS audits of Tea Party groups and no-knock drug warrants as twin, equivalent government abuses. That's a rhetorical and political game changer if it's truly reflective of how grass roots conservatives feel.

RELATED: From the Texas Electronic Privacy Coalition (July 4): "SCOTUS opens a door: The Texas Legislature should step through."

LBB: Texas prisons won't fill up as quickly as thought

The Texas Legislative Budget Board's new adult and juvenile prison population projections (pdf) are out and the good news is the bad news has been retracted.

Altering its earlier estimate that Texas' prisons would run short of capacity by the end of the decade, the Legislative Budget Board now says that "adult state incarcerated populations are projected to remain stable throughout fiscal years 2014 to 2019 and to remain, on average, 0.6 percent below TDCJ’s internal operating capacity."

Wading through the bureaucratese, this is remarkable news: Despite Texas' rapid population growth in recent years, both adult and (especially) juvenile arrest totals have been declining, LBB noted. Indeed, adult arrests declined in all categories except drug offenses, which increased over the period depicted (p.5). Going forward, "The slight projected increase in the [prison] population is primarily driven by a projected 1.1 percent increase in admissions and a slight slowing of parole and discretionary mandatory supervision (DMS) case considerations and approvals."

So, if the state enacts policies that cause admissions to decline, or for that matter if parole rates remain stable, Texas could have more excess capacity going forward, even, than these cautious LBB projections would have it. Implementing just a handful of de-incarceration polices would let the state shut down even more prison units and shift resources toward prison healthcare and treatment programming.

Friday, July 04, 2014

'Fiscal impact of border security'? Spend less on roads

Texas Speaker of the House Joe Straus this week appointed a committee to focus on the "fiscal impact of border security and support operations." According to a press release, "Speaker Pro Tempore Dennis Bonnen of Angleton will chair the new committee. Its membership will also include Reps. Greg Bonnen of Friendswood, Myra Crownover of Denton, Drew Darby of San Angelo, Donna Howard of Austin, Oscar Longoria of Mission, Marisa Márquez of El Paso, Sergio Muñoz, Jr. of Palmview, John Otto of Dayton, Sylvester Turner of Houston and John Zerwas of Simonton."

Here's what's interesting to me. Before the recent episode with child migrants, Speaker Joe Straus had been maneuvering to have the House consider whether to stop diverting highway money to DPS and spend the money instead on transportation projects. Then, within a month or so of adopting that stance, the Speaker joined with the governor and lieutenant governor to approve an emergency expenditure of $1.3 million per week on expanded DPS patrols in the Valley. But a lot of the "extra" spending thrown DPS' way in recent years - $500 million, by Rick Perry's count - has gone to (IMO wasteful and pointless) border security operations. So Straus has endorsed both sides of this issue in a matter of weeks.

If Texas wants to divert money from DPS to roads - and in the big picture that's probably a wise prioritization of state expenditures - then politicians starting with Straus must find a counter to nativist scare tactics that have made "border security" such an unlikely spending imperative among the state's political class. Ironically, the mayor of McAllen doesn't believe there's a crisis or an "emergency." Perhaps Straus should look to him and other local officials in the Valley for rhetorical and policy responses to border-security hype. Otherwise, that hype will roll over him when he tries to expand transportation funding next year.

Thursday, July 03, 2014

Inmates compromise jail locks in Van Zandt County

English jail cell door, UT Tarlton Law Library collection
Dozens of inmates were removed from the Van Zandt County Jail after "inmates figured out a way to compromise the locking systems." KLTV reported (July 2) that "one of the inmates figured out how to compromise the locks and started teaching others his tricks." Added the Tyler Morning Telegraph (July 1):
Following an inspection of the facility, it was determined that although the locks were functioning as designed, an engineering flaw existed with the mechanisms enabling a simple process to defeat the security of the lock.

This issue effected confinement cells in high security sections of the facility as well as ingress and egress access to the building.

State and County Officials were immediately notified of the situation and the Sheriff’s Emergency Action Plan was put in action.
Because the separate, newer constructed Minimum Security Confinement Facility was not equipped with the same locking systems, of the currently incarcerated 161 inmates, 90 were required to be transported to the Henderson County Jail and 35 to the Kaufman County Jail and the remaining female inmates were transported to the Upshur County Jail for the safety and the security of the inmates and the jail staff.
One wonders how many other secure lockups this same vendor has sold these locks to?
Surely tiny Van Zandt County can't be their only client. See this essay for more background on how locks in detention facilities can be defeated by enterprising inmates.

Wednesday, July 02, 2014

John Bradley to prosecute in island paradise

Grits had heard rumors that former Williamson County District Attorney John Bradley took a post working for the Attorney General in the Republic of Palau, an American protectorate of 20,000 people in Micronesia. I didn't mention this bit of gossip, half fearing it was a gag. But then an item in the Statesman and this column by the Houston Chronicle's Lisa Falkenberg confirmed the offbeat news. Concluded Falkenberg:
Part of me thinks everybody, even John Bradley, has the right to make a living, to learn from mistakes and to get on with life after grievous errors.
The other part thinks Bradley is still a danger to justice everywhere, even 8,000 miles away.
If you've never heard of Palau, check out these results from Google images. For a supposed hard landing that's pretty sweet. Hard to know what to make of this disclosure, but I'd echo the sentiments of Rob Kepple at the Texas prosecutors' association who told Falkenberg, "'It's been awhile,' ... referring to the Morton revelations. 'You know, maybe he gets another chance. Maybe he's got to go all the way to Palau to get it. But I wish him well.'" Me too. Bradley has seemingly floundered a bit since leaving public office and clearly needed to hit the "restart" button: I'd rather he do it there than here, even if the whole story sounds a bit like the premise for a bad television series.

Who knows? Perhaps in Palau, as opposed to in Williamson County, Bradley will have the opportunity to prosecute some of those important oyster felonies, if they have such a thing.

Tuesday, July 01, 2014

Border boondoggle: Lack of goal, success metrics, don't prevent squandering tax dollars

Image source
Texas has no valid plan or purpose for its recently announced $1.3 million per week commitment to expanding state trooper patrols along the border, judging from statements by Attorney General and GOP gubernatorial nominee Greg Abbott. From the Houston Chronicle (June 29):
Asked what a secure border might look like, Abbott said Sunday he didn't have a ready-made definition, but that achieving one was possible.

"If we can land people on the moon, if we can create iPhones and iPads," he said, "I think we can measure meaningful border security."
In other words, Greg Abbott doesn't know any more about how to secure the border than he knows about how to construct an iPhone or put a man on the moon.

So here we are: For the foreseeable future, Texas will spend $1.3 million more per week on border security than we did a month ago. But state leaders cannot identify an operational goal beyond meaningless platitudes (the goal is a "secure border" but Abbott can't define the term). And they cannot identify metrics to tell if the mission is a success or a failure (Abbott "thinks" it can be meaningfully measured but can't say how).

It's impossible to solve a problem one can neither define nor measure. Texas has spent hundreds of millions of dollars in recent years on similar border surges and by the state's own (often dubious) account, problems worsened. So why throw good money after bad? Any project where the government a) cannot define its goal, b) cannot measure success, and c) has pledged tens of millions of tax dollars ($67.6 million per year) with no end in sight, by definition qualifies as a big-league boondoggle in my book.