Saturday Link Roundup

Just to clear my browser tabs, here are a few mostly unrelated links that haven't made it into independent Grits posts but deserve readers' attention::

• Houston Chronicle (Aug. 27): "Overburdened and underfunded immigration judges decry 'Cinderella' court system"
• Dallas Morning News (Aug. 27): "Tarrant County compiles resources to help felons succeed after life in prison" 
• SA Express-News (Aug. 27): "Texas court could settle DWI policy" (on mandatory blood draws) Related: The South Dakota Supreme Court declared mandatory blood draws unconstitutional this week based on reasoning similar to that calling into question Texas' statute.
• CBS-DFW (Aug. 13): "Lawyers: Rape case sign of Texas court's shift"
• Texas Observer (Aug. 26) "Houston cops are always justified in shootings. Always."
• Texas Prison Bidness (Aug. 28): "Liberty County hires consultant to look into who should run the jail"
• Texas Prison Bidness (Aug. 12): "Grasping at straws, Littlefield seeks California prison contract?"

New reporting on TX indigent counsel to take effect

New reporting deadlines for criminal defense attorneys and counties take effect this fall when the final elements of HB 1318 take effect beginning Sept. 1. The forthcoming data will shed some new light on indigent defense caseloads, but IMO won't be detailed or probative enough to measure how caseloads relate to outcomes. Still, it's something. First,

not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission [TIDC], submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Then, section 6 of the bill requires that:

Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

Then, the Texas Indigent Defense Commission (TIDC) must publish a statewide report summarizing the data by the end of the year.

Here's a short summary (pdf) of TIDC's implementation of HB 1318, a copy of the (very minimalist) form (pdf) attorneys must fill out, and a presentation (pdf) by TIDC from February on the new reporting requirements. TIDC also has produced an "optional attorney practice time work sheet" (pdf) but one (perhaps cynically) doubts many attorneys will volunteer the (slightly) more detailed data. We'll know before the new year.

Via the Legislative Reference Library. See prior Grits coverage.

Taser's business model on police body cams

Grits observed earlier this month that the most successful wearable tech businesses so far have been in the corrections industry - e.g., police body cams, GPS trackers, and alcohol monitors - and dominated by a few companies narrowly focused on law enforcement tech. I'd argued that in the wearables market, "The more significant profit potential comes when you can find ongoing, real-world uses for wearable-generated data." So I was interested to see a recent New York Times piece ("Police cameras can shed light but raise privacy concerns," Aug. 20) describing Taser International's services and fee schedule for its (relatively) new police body cam service:

In 2012, Taser began selling its most advanced body camera, the Axon Flex, which can be clipped to an officer’s sunglasses, hat, helmet or epaulets. The Flex, which sells for $599 a unit, captures a wide-angle view that is close to what an officer sees while on patrol. Other cameras, including those made by Vievu, Taser’s largest competitor, clip to an officer’s shirt or belt. Because on-body cameras also capture high-fidelity audio, watching their videos offers a strangely intimate view of police work, as if you’re playing a video game.

Throughout an officer’s shift, Taser’s camera is constantly recording what it sees. But most of its images are kept in a 30-second buffer, after which they’re discarded. The unit begins saving longer segments of video — and begins capturing audio — only when an officer double-taps a control switch.

The 30-second buffer is a way of allowing officers to essentially record events that began in the past. “Say the officer sees someone run a red light — obviously the officer didn’t know that was going to happen,” Mr. Smith said. “But once he starts recording, we go back and grab that 30 seconds before that.”

The buffer includes just video, not audio, which is saved after the officer hits Record. The video-only buffer is meant to protect officers’ privacy.

Taser’s Axon cameras are paired with the company’s online storage service, Evidence.com, for which police departments pay a monthly fee of $15 to $55 per officer, depending on how much storage space they use.

At the end of each shift, an officer plugs the camera into a charging dock, and all videos are uploaded to Evidence.com. Police departments determine how long videos are retained; often retention times are related to the statute of limitations for the episodes the videos depict. Departments also set policies on who can watch the videos, and Evidence.com keeps an audit trail of all views.

Here's an example of what I was talking about: Not only is Taser charging a substantial sum for the camera itself, the per-officer fee generates ongoing revenue over time. Most corrections oriented "wearables" share that trait, which is why I think we'll continue to see greater market growth there in the near term than in the much-more ballyhooed wearable-tech fashion field. Many wearable apps struggle to find useful things or interesting things to do with data they generate, while corrections folks know what to do with data about their subjects - whether it's video, their location, blood-alcohol levels, etc. - and exhibit a voracious appetite for it.

In related news, Houston police chief Charles McLelland asked city hall this week "for $8 million to equip 3,500 police officers over three years with small body cameras to record encounters between law enforcement and residents as a way of improving accountability and transparency," reported the Houston Chronicle (Aug. 28). HPD had piloted the idea with 100 officers and now wants to take it department-wide.

Capt. Mike Skillern, who heads HPD's gang unit and is involved in testing the cameras, said his fellow officers act "a little more professionally" when wearing the devices.

A recent Cambridge University study of the small police department in Rialto, Calif. reported a more than 50 percent reduction of use of force incidents with officers wearing cameras and an 89 percent decline in the number of complaints against officers during the yearlong trial. 

See also a recent blog post from Paul Cassell at the Volokh Conspiracy favoring police body cams and a report published this year (pdf) sponsored by the US Department of Justice assessing research so far on their use in the field. (It concludes with a call for more research, finding that "Most of the claims made by advocates and critics of the technology remain untested.") MORE: From Ars Technica.

Texas should fund mental health diversion instead of border surge

Here are a couple of recent stories about jail diversion programs for the mentally ill in San Antonio and Houston being touted as models (even though the latter hasn't launched yet):

• Kaiser Health News (Aug. 20): Wrestling with a Texas county's mental health system
• Houston Public Media (Aug. 21): Pilot jail diversion program for mentally ill

The Bexar program deserves its kudos and I certainly hope the pilot in Harris County fulfills expectations. But one notices that whenever local agencies in Texas do stuff they always want their program to be a "model" for the state and nation. We do this a lot in Texas (particularly in indigent defense: "Comal County will lead the nation ..."). In this case, Bexar probably deserves the "model" moniker; Harris, not yet.

Still, usually when I hear someone tout their work as a model, I think: That's great, I hope it's true the brave new world begins at your doorstep and this or that local program changes how everybody does everything. OTOH, I'm generally more comforted to hear about tax dollars spent following models that work than attempting to forge them, which is a dicier play.

Our fundamental problem is that Texas spends too little on behavioral health care (49th among states in per capita spending) and too much of what care is delivered happens through the criminal justice system. So diversion programs are the right way to go. Indeed, when one watches the massive, pointless, knee jerk spending at the border that accomplishes nothing, it's hard not to think how much good that money would have done expanding these sorts of mental health diversion programs to other jurisdictions. These programs actually work, are cost effective, and directly make the public safer in the places where most of them live. It'd be difficult to make similar claims about Texas' border surge with a straight face.

Litigation heating up over summertime prison conditions: 5th Circuit may rule in Louisiana case by end of year

At Texas Monthly's website, Annie Melton reflects on the looming question: "Will a ruling on extreme conditions at the Louisiana State Penitentiary influence lawsuits pending in Texas?" She's talking about a federal court's ruling in favor of death row inmates in the Angola unit in Louisiana which may soon cause our Bayou State neighbors to "join the long, still-growing list of states that have established temperature regulations for their prisons," just like Texas requires for county jails. (See prior Grits coverage.)

The state prison system has asked the Fifth Circuit Court of Appeals, which also includes Texas and Mississippi, to overturn the decision. Their appeal "is currently at the briefing stage within the Fifth Circuit, and no ruling is expected until later this year." Many court watchers think their ruling in that suit will either govern the Texas cases or at least show which way the wind blows on the court regarding very similar claims.

Keep in mind, in 2012 the Fifth Circuit expressly allowed prison heat litigation in Texas to go forward, reversing the ruling of the trial judge and inspiring several more, similar suits at other Texas units. So, after greenlighting the Texas suits just two years ago, will the appellate court now shut those cases down or further them along with its coming ruling? Or, perhaps the court will affirm or overturn the district judge's ruling in a way that won't affect the Texas cases. ¿Quien sabe? Nothing is certain.

Still, judging from commentary from the bench during oral arguments at the Fifth Circuit in the Texas case, if I were TDCJ Chief Mugwump Brad Livingston, I think I'd be pricing air conditioners and the cost of installing and using them at dozens of Texas prison units, if not all of them. There's a decent chance that, by the time the Legislature meets next spring, Livingston will find himself facing some legislator in a committee hearing waving around a new decision from the Fifth Circuit and asking him how much it would cost.

Montgomery commissioner: Reduce number of pretrial detainees

More detail on Montgomery County commissioners clowning around on jail overcrowding instead of confronting its causes, mainly excessive pretrial detention, head on. Grits had discussed the situation here, then the Houston Press' Hair Balls blog (Aug. 22) added:

Montgomery County Commissioner James Noack held a meeting this week with court, jail and DA's office officials hoping to get at the root causes for the county's current predicament. The main problem, he says, is the amount of pre-trial defendants -- who are presumably innocent until proven guilty -- held in lockup.

According to the most recent numbers out of TCJS, 68 percent of those held in the Montgomery County jail are pretrial inmates. Statewide, 58 percent of county jail inmates are pretrial defendants. In Harris County, that number is 61 percent. In San Antonio, where county commissioners have made a concerted effort at pretrial diversion (like expanding specialty mental health and drug treatment courts), only 29 percent of county jail inmates are pretrial defendants.

Phil Grant, Montgomery County's first assistant district attorney, says the shuttering of the Sam Houston State University regional crime lab in 2012 exacerbated the county's jail woes. For example, the turnaround for blood analysis on felony DWI cases used to take about a week. Now, blood analysis and toxicology tests are done by the state DPS crime lab, which takes about six months, he says.

That means cases take much longer to clear. And if the defendants can't afford bail, they clog the jail for months.

Nate Jensen, the county's director of court administration, says recent years have seen an explosion in arrests and case filings as the local population grows. "Most agencies have more boots on the ground now," he said. "And if you have more police, you're going to have more instances where people...well, get caught." In 2004, about 4,000 felony cases were filed. Last year, the Montgomery County DA's office filed about 5,700.

Grits can't tell where the 29 percent figure for pretrial defendants in Bexar County comes from. I think it's wrong. Looking at the 8/1/14 county jail population report from the Commission on Jail Standards, misdemeanor, felony, and state jail felony inmates awaiting trial accounted for 57 percent of Bexar jail inmates, which is right around the statewide average. (Add the columns: "Pretrial felons," "Pretrial Misd.," and "Pretrial SJF.") In both Dallas and Travis Counties, astonishingly, 73 percent of jail inmates incarcerated on that day were there awaiting trial as of August 1.

Even so, I stand by my assessment that the number of pretrial defendants could be reasonably lowered to at least half or less of the overall jail population in Texas' larger counties.  Back in 1995, pretrial defendants made up just 30.3 percent of Texas county jail inmates. As of 8/1/14, they made up 59.5 percent of jail inmates statewide, a slight uptick from the previous month and up from 53 percent in 2008.

What's needed is to shift from bail-based pretrial release criteria to ones grounded in risk assessment tools and a system-wide cost benefit analysis. Whether someone can pay is a poor indicator of whether or not they'll show up in court. But pretrial services experts have developed pretty effective risk-assessment models that are much more probative to the key question at hand than whether some family member can cover 10 percent to a bail bondsman.

My view: Save punishment till post-conviction. These high rates of pretrial incarceration do little to further public safety and generate serious collateral consequences that in some cases do more harm than good.

Note to Brandon Wood, et. al., at TCJS: Please, PLEASE create an archive for your old monthly county jail population reports going back as long as you've got them! They're incredibly useful for historical comparison. Why not? :)

H/T: Off the Kuff.

Rick Perry seeks habeas corpus relief

Via Mark Bennett, here's Texas Gov. Rick Perry's pretrial writ of habeas corpus (pdf) asking a district judge (and ultimately the Court of Criminal Appeals) to bar his prosecution for abuse of power in the Travis County Public Integrity Unit veto scandal based on constitutional grounds. See the Austin Statesman's coverage.

For habeas buffs, this is a particularly high-profile application. Rate the odds of its success (preferably sans partisan carping in either direction) in the comments.

Companies selling government detailed location data

At the Washington Post we find an article titled "For Sale: Systems that can secretly track where cell phone users go around the globe," (Aug. 24). Here's how the story begins:

Makers of surveillance systems are offering governments around the world the ability to track the movements of almost anybody who carries a cellphone, whether they are blocks away or on another continent.

The technology works by exploiting an essential fact of all cellular networks: They must keep detailed, up-to-the-minute records on their customers’ locations to deliver calls and other services.

Surveillance systems are secretly collecting these records to map people’s travels over days, weeks or longer, according to company marketing documents and experts in surveillance technology.

The world’s most powerful intelligence services, such as the National Security Agency and Britain’s GCHQ, long have used cellphone data to track targets around the globe. But experts say these new systems allow less technically advanced governments to track people in any nation — including the U.S. — with relative ease and precision.

Users of such technology type a phone number into a computer portal, which then collects information from the location databases maintained by cellular carriers, company documents show. In this way, the surveillance system learns which cell tower a target is using, revealing his location to within a few blocks in an urban area or a few miles in a rural one.

It is unclear which governments have acquired these tracking systems, but one industry official, speaking on the condition of anonymity to share sensitive trade information, said that dozens of countries have bought or leased such technology in recent years. This rapid spread underscores how the burgeoning, multibillion-dollar surveillance industry makes advanced spying technology available worldwide.

See the Post's interactive addendum to the story.

One wonders: Are these services ever accessed by state and local law enforcement? In Texas? Perhaps this is another topic for the Texas Senate State Affairs to potentially consider when they meet to discuss their interim charges on electronic privacy September 16.

Silly Season: When in doubt, make up stuff

Grits cannot and will not respond to every bit of campaign-related criminal justice flotsam and jetsam on this blog. The task of correcting that many errors is way too big for a part-time hobbyist blogger of my ilk. So much disastrously wrong silliness would require a small, full-time team to vet. Two examples:

Rick Perry: Terrorists at the Border
The media has lately been debunking Gov. Perry's claims that Islamic terrorists may attempt to cross the Texas border through the desert to attack our cities. But it's only his presidential aspirations that make this news. The media thoroughly debunked those absurd claims from the time Perry and others first suggested Islamic terrorists had crossed the Rio Grande in 2006. But just like now, he kept repeating them because, false or not, the meme appealed to the far-right base in the Republican Party while avoiding tougher stances, for example, on employers who hired illegal immigrants. And the fact that he stuck to his guns in the face of the "liberal media" saying he was wrong made the base happier still.

Now Perry is hoping the same "Damn the Facts" approach (Bill Maher calls such memes "zombie lies.") will work on the national stage. But by comparison to a presidential campaign, the Texas media have been lap dogs. I don't think that bush-league stuff will play once the national press corps hones in on his campaign; IMO, this is a recipe for repeating his 2012 performance, crumbling under media scrutiny when his moment in the spotlight hits. Perry famously avoided the Texas press in his latter gubernatorial campaigns, spending tens of millions on TV advertising to appeal directly to the voters. But you can't avoid fact checkers running nationwide for the presidency.

Wendy Davis: On ending statute of limitations for rape
It's bad enough that Wendy Davis, hoping to capitalize on an old Supreme Court opinion by Greg Abbott siding against a rape victim, has begun to rally for eliminating the statute of limitations for rape. Now Greg Abbott has said he favors the policy, too. So led by a demagoguing Democrat, Abbott felt pressure to follow suit and the result: A bipartisan consensus for a really terrible policy. Thanks for nothing.

To be clear: Texas has already removed the statute of limitations for rape in cases where DNA evidence matches an old rape kit [see CCP 12.01(1)(c)]. Davis is suggesting that cases with less conclusive standards of proof should also have no statute of limitations; currently it's ten years in non-DNA cases. Beyond that, how in the world is anyone supposed to prepare a defense against an alleged sexual contact from more than a decade ago? Or for that matter, to prove the event affirmatively beyond a reasonable doubt ten years later without DNA? Keep in mind, the Lege could only remove the statute of limitations for future cases; the episodes where DNA accused people who couldn't be tried were all from before the law was changed to reflect DNA advancements. To the extent this is a problem, it's already been fixed as best as the Lege can. What Davis proposed is misanthropic madness, politicizing rape in a way a male candidate probably couldn't get away with.

It's not just that this is a bad idea, it's a cynical one. Which is why it's unsurprising that her opponent issued an equally cynical "Me Too." After all, what candidate wants to appear on the same side of an argument as alleged rapists in the home stretch of an election? Especially for polling driven campaigns (rapists never poll well), these look on the surface like easy shots. OTOH, if you were looking for a candidate in this race who favored strong, substantive due process rights to avoid convicting innocent people, neither party has a thing to offer you.

Davis trying to out-flank Abbott to the right is a great example of how we got here: Too many Texas Democrats over the years have tried the tuffer-than-thou strategy and it's rarely effective. Certainly Davis won't beat Greg Abbott that way, or at all, really.

(RELATED: From Kiah Collier at the Houston Chronicle (8/22), "Experts cast doubt on Davis rape statute plan.")

* * *

I get that both these candidates face losing prospects and feel the need to swing for the fences. But regrettably, as in sports, adversity in politics more frequently reveals one's character than shapes it. What's revealed by these two dubious campaign gambits, I'm afraid, doesn't speak favorably of those in the highest echelons of the two Texas political parties.

It's going to be a long, ugly campaign season.

Death by cop

Grits avoids much discussion of hot-button topics from other states like the Ferguson riots because there are enough problems with the justice system here in Texas to keep me more than occupied. But a related story from The Economist included this graphic contrasting the remarkable volume of deaths from police shootings in the United States to other countries:

So in Japan or Britain, getting shot by police may get the deceased on a list like this one, while in America on average it happens more than once a day. Wow.

Roundup: Creative prison design

Grits doesn't track adult prison design issues much anymore, mainly because I want the state of Texas to tear down prisons, not build new ones. But over the last few months there have been a number of noteworthy articles on the topic that may interest some readers:

• What kind of prison might the inmates design?
• Oregon prison tackles solitary confinement with Blue Room experiment
• Future mind altering drugs could make prisoners think they're in jail for 1,000 years
• A radical new approach to prison design
• Britain's new 'model' prison is disturbingly violent and its design could be to blame
• Prison Break: 8 penitentiary designs that defy convention

See here and here for a couple of useful, slightly older items on prison design that long-time readers will recognize as the subject of prior posts.

Healthcare at reentry helps prevent recidivism

This article from Medicine@Yale makes an argument Grits has posited before, particularly as it relates to mental health services: That expanding Medicaid - in particular providing care to indigent ex-cons and covering hospital costs for prisoners - would reduce both costs and recidivism while improving public safety. Inmates leaving prison "don’t know how to find health insurance or medical care. And many quickly wind up in emergency departments with overdoses or exacerbations of chronic diseases that were being treated in prison."

“Obamacare is key to reducing recidivism,” [Dr. Emily] Wang says. She adds, however, that the reverse is also true. Over one-fifth of people eligible for Medicaid under the ACA expansion are incarcerated, on probation, or on parole. Many are young and healthy, making them attractive to insurance companies looking to dilute their risk pools. Far from being burdensome, then, these individuals may strengthen the health care system—much as their involvement has made the TCN more effective.

“In order for the Affordable Care Act to work,” Wang says, “you have to get former prisoners involved.”

Speaking of the intersection between healthcare and reentry, a story on NPR this week lauded San Antonio's proactive approach to mental health, fielding specially trained officers to deal with the mentally ill and establishing an effective diversion program to keep them out of the system. The key was for stakeholders to chip in to

create the Restoration Center. It offers a 48-hour inpatient psychiatric unit; outpatient services for psychiatric and primary care; centers for drug or alcohol detox; a 90-day recovery program for substance abuse; plus housing for people with mental illnesses, and even job training.

More than 18,000 people pass through the Restoration Center each year, and officials say the coordinated approach has saved the city more than $10 million annually.

Creepy sci-fi corrections tech in sight

Grits observed recently that the the most notable examples of successful wearable tech businesses arguably have been in the corrections field. Similarly, when I see articles like this one about healthy people being microchipped with a RFID to access day to day items, I can't really imagine many average people wanting to do that of their own accord. But as an alternative to prison? A lot of folks might say "yes."

I'm not advocating it. I'm saying it will be advocated; the tech exists now.

MORE: Here's a philosophy prof working on a paper entitled ‘Cyborg justice: punishment in the age of transformative technology’

Crappy indigent defense causes false convictions

The San Antonio Current had a fine article recently titled "254 ways to defend poor people in Texas" critiquing Texas' county-by-county indigent defense system and contrasting it with Colorado's statewide public defender office based on the American Bar Association's “10 Principals of a Public Defense Delivery System.”

The piece includes this quote from my boss Jeff Blackburn at the Innocence Project of Texas: “The real cause of unlawful convictions in Texas is indigent defense. ... I have never handled an innocence case in which a good lawyer did a good job at trial. Virtually all of [those defendants] have had court-appointed lawyers.” Wrote reporter Callie Enlow, "This has made Blackburn deeply cynical about what he calls (in his typical colorful language) 'a pretty goddamned awful' indigent defense system in Texas." He and Scott Ehlers from the Harris County Public Defender's Office will release a report soon comparing Texas' and Colorado's systems; the Current article is based in large part on a draft shared with the reporter. Check it out.

MORE: Scott Greenfield concurs with Blackburn's harsh assessment in a blog post at Simple Justice.

Dallas, Harris DA races most interesting contests on November ballot

While the media relentlessly focuses on Greg Abbott v. Wendy Davis and other statewide elections, those races are probably already over as a practical matter. To me, the two most interesting partisan* races on the November ballot in Texas have to be the contests for District Attorney in the state's two largest counties.

Craig Watkins under fire
Glad to see Dallas DA Craig Watkins standing firm against police union backlash versus his decision that the DA's Office would henceforth investigate all police shootings in his jurisdiction. Takes gumption. Regrettably for him, in an election year, what's getting more press is the FBI investigation surrounding the circumstances regarding his car accident in a vehicle purchased with forfeiture money and a secret settlement with strange, self serving provisions. His position on police shootings will play well to his South Dallas base. If Watkins could avoid shooting himself in the foot he'd cakewalk through Republican Susan Hawk to a third term. As things stand, it looks as though his election in November will be a close one.

Harris County DA's race issue focused, turnout driven
The other hot DA's race this fall is in Harris County, where Democrat Kim Ogg will challenge incumbent Devon Anderson, who was appointed by the governor to finish her deceased husband's term. A lot of the debate so far has revolved around prosecution of drug offenses. Ogg says police shouldn't arrest for pot possession while Anderson suggests a diversion program that's supposedly in the works. Ogg and Anderson also disagree on how to prosecute possession of trace amounts of harder drugs, with Ogg backing the stance of former DA Pat Lykos that such cases should be prosecuted as Class C paraphernalia charges, as is done in other big Texas cities.

Another Ogg attack has been to question Anderson's handling of the Houston police detective who lied about investigating more than a dozen homicides and whether he was given special  treatment. Perhaps at some point a discussion about Harris County's troubled grand jury system might also arise. To read the papers, you'd think this campaign would be decided on the issues. In reality, it's all about turnout, answering the question: Has Harris County turned blue yet? This and the judges downballot are the races that will answer that question this fall.

*Austin's new clean-slate 10-1 council with single-member districts and the city's first ever November city council election probably holds equal levels of political drama, but without the partisan spin.

Former TDCJ flak Michelle Lyons profiled: Witnessed 278 executions

At Texas Monthly, Pam Colloff has a profile of former TDCJ flak Michelle Lyons titled, "The Witness," focused mainly on the 278 executions Lyons witnessed as part of her job before her termination/resignation in 2012. Lyons still supports the death penalty but the experience made her more thoughtful about the issue than most folks. She told Colloff:

I came to believe that there were two kinds of people on death row. ... You had guys who were true sociopaths. A lot of them fell into that category. And then you had guys who’d gotten themselves into a bad situation—running with a rough crowd, abusing alcohol, doing drugs. Maybe they robbed a store to get money for drugs and something went wrong and they shot the clerk. They’d had a choice to make, and they’d made the wrong one, but they hadn’t set out with the intention of killing someone.

The story also included this brief aside about the agency's shift away from transparency in the last decade: "TDCJ itself was changing. Under the leadership of a new executive director, Brad Livingston, who was appointed in 2005, the agency had grown more skittish about media attention, and Michelle’s attempts to grant access to journalists or be proactive about press coverage were increasingly discouraged."

The agency's leadership became even more insular and averse to transparency after Lyons left. Where previously one could call and ask for a document and frequently the Public Information Office would just email it to you, today everything must be done via open records requests, takes forever, and often one comes away feeling like information was withheld. (One could say the same thing for Texas DPS under Col. Steve McCraw, btw.)

No real conclusions to draw or policies to recommend from Colloff's story and it won't change anyone's mind about the death penalty one way or the other. But it was a good read.

Jail poetry project profiled

For those of y'all who chipped in to help fund Kelsey Erin Shipman's Kickstarter campaign to publish a book of poetry by Travis County jail inmates, you may be interested in this feature profile of her and her project from the Texas Observer.

Exoneree confronts con whose crime caused false conviction

Dallas exoneree Christopher Scott authored a recent essay at the Texas Observer about his experience visiting the man who actually committed the robbery and murder for which Scott was falsely convicted. There's compelling video accompanying the piece excerpted from an upcoming documentary. Good stuff.

Max Soffar’s Last Appeal

Michael Berryhill chairs the journalism department at Texas Southern University. He asked Grits to publish this extended guest post by him on the Max Soffar capital murder case, which also inspired this recent Dallas Morning News editorial. Soffar, who for decades has maintained his innocence and may have falsely confessed, is terminally ill and likely will not survive until his execution. While on paper he has many years' worth of appeals left before the state can kill him, as a practical matter he probably has just a few months remaining to prove his innocence before death overtakes him.

Mr. Berryhill is also the author of The Trials of Eroy Brown, the Murder Case that Shook the Texas Prison System, published by the University of Texas Press. Here's his article in full, with only minor copyediting by yours truly.

* * *

On the last Wednesday of July, a death row convict named Max Soffar gave what may well be his last news interview. Soffar, who is 59, has spent most of the last 34 years insisting he falsely confessed to helping another man kill three teenagers at a Houston bowling alley in 1980.  

Harris County prosecutors, the leading experts in the nation at winning death penalty verdicts, insisted that no matter what his written confession said, Soffar acted alone. Although there is not a shred of physical evidence that links Max Soffar to the murders, not a trace of blood, not a hair, not a fingerprint, not a gun, not a getaway car, they have twice convicted him of shooting a young woman, one of the three victims of an execution-style murder and robbery.

 Soffar was convicted once in 1981, and after he won a second trial because of his ineffective lawyers, a second time in 2006. During the final arguments, one of Soffar’s prosecutors gloated to the jury that his lawyers “didn’t bring you any evidence that someone other than the defendant committed this crime.”

That is particularly galling to Soffar because the Harris County prosecutors and his judge, Mary Lou Keel of the 232^nd District Court, did everything necessary to keep the jury from hearing a plausible story about who really committed the bowling alley murders. Now Soffar’s appeal lawyer has turned up a reliable witness who has identified a convicted mass killer of seven people as being present at the Houston bowling alley a week before the murders.

“I hope my federal judge in Houston will let me put this witness on,” Soffar said. “He was the one who saw this murderer in the bowling alley.”

Soffar’s lawyers need to hurry up to get that hearing, not because Soffar faces impending execution, but because he is terminally ill with liver cancer and has from five to eight months to live, maybe less. So many questions surround Soffar’s conviction, which a judge for the Texas Court of Criminal Appeals has called “fishy,” that he has never been scheduled for execution.  Soffar has many years of appeals left: to the federal district court, to the Fifth Circuit panel of three judges, to the nine judges of the Fifth Circuit en banc, and to the Supreme Court. Such appeals could go on for several years. But Soffar is out of time.

Soffar’s current pro bono appeals lawyer, Andrew Horne, has been feverishly working on new writs: an appeal for clemency from the Texas Board of Pardons and Paroles and Governor Rick Perry, and an appeal for an expedited hearing from the Southern District Federal Court. The odds of winning clemency for a twice-convicted capital murderer in Texas from Perry, who is preparing to campaign for president, are about zero.  The petition for an expedited federal hearing for a terminally ill inmate breaks new legal ground, Horne told me. He said he hasn’t found any precedent for it.  But he wants his client to have one more chance to clear his name before he dies.

Horne, a young Scot with a Harvard law degree from the international firm of Kirkland and Ellis, has spent the last six years and millions of dollars of his employer’s money to investigate Soffar’s complicated case. The files alone fill sixty boxes in a small room at his firm’s offices in midtown Manhattan.  He had been warned that in a case that has been litigated for thirty years by dozens of lawyers, the chances were slim he would find something new.  

Vowing to touch every piece of paper connected with the case, he found a witness that anyone with a sense of fairness (but perhaps not a judge or a Harris County prosecutor) would want to hear. He was a bowling alley employee named Patrick Pye, and two of his friends died that weekend. The case was widely publicized: it was a cold-blooded execution of some helpless teenagers that horrified the city.

On July 15, the Monday after the weekend killings, Pye told police that he and one of the bowling alley employees who was killed had a “run-in” with a white man at the bowling alley a week before the murders. The man bowled alone and drank alone, Pye told Horne, and he and Steve Sims had thrown him out for not paying.

“Pye stated that he got a phone call from this man,” the police report days, “who stated, ‘You better be watching over your shoulder.’  Pye stated that he thought he would be able to id this man if he saw him again.”

Even 28 years later, Pye could identify him as Paul Dennis Reid, the man with the droopy eyes, from a wedding photo taken a couple of weeks after the murders. 

If the Houston police had followed up on Pye’s story, they might have found Reid. For one thing, he had a criminal record. But more importantly, he resembled a police sketch of the murderer, drawn with the help of a surviving witness, Greg Garner. Garner lost an eye when he was shot in the back of the head, but he had a strong recall of how the robbery happened. Detectives interviewed Garner seven times, recording and transcribing the interviews, and even hypnotizing him to see if he could retrieve further details. It had happened quickly. There was one man, not two. The man said his truck had overheated and he needed water. He had a gun. He made them lie down. He said “good-bye,” and shot them one after another.

Garner remembered a single, mild-mannered robber who was white, beardless, muscular and more than six feet tall. His hair was parted down the middle, covered his ears and was down to his collar. It fit Reid. Within a few of days of the murders, Houston newspapers and television stations were circulating this drawing:

It was this drawing that led to Max Soffar’s downfall. A reward of $15,000 was offered for the arrest of the killer, and Soffar had a crazy notion that his running buddy and partner in burglaries and drugs resembled the drawing closely enough that he could turn him in for the bowling alley murders and collect the reward. It didn’t matter that his buddy was bigger and rounder than the drawing indicated, and wore mutton-chop sideburns. Max thought he looked just like the image.

“My sister, I told her I was going to do it,” Soffar recalled, “ and she said, ‘Max, don’t do that, because if you do, then you’re gonna get in trouble.’ And I’m thinking how am I gonna get in trouble? I’m telling them he did the murders…. I said ‘They’re going to listen to me and they’re going to give me that money.’ She said, ‘You’re crazy.’”

Thinking back 34 years, Soffar sighed, and said, “I guess I should have listened to my sister.”

From birth Soffar had problems. He was the adopted son of a drug-using mother, and both his liver and brain were damaged from fetal alcohol syndrome. He was an impulsive and difficult child who beat his head against the wall His parents had little idea of how to raise him. Soffar’s adoptive father was a remote, alcoholic owner of a second-hand furniture shop in Alvin, who beat Max when he was little. His mother was a hoarder, who kept the house filled with so much junk and stacks of newspapers that a person could barely walk through the house.

From an early age he sniffed glue and gasoline. When he was 9, his parents had him committed to the Austin State Hospital, where he was often kept naked and terrified in a padded cell. He was given electroshock treatments and dosed with powerful anti-psychotic drugs.  (At his second trial, in order to assert Soffar’s future dangerousness, prosecutors falsely claimed he had been criminally confined, which created another point of appeal. During his long confinement in death row, Soffar has never been a threat to the inmates or correctional officers.)

When he came back home to Friendswood, his parents couldn’t control him. He smoked marijuana, sniffed glue, and took methamphetamine and other drugs. He dropped out of school at the seventh grade. He worked as a truck driver for a while. In 1980, he was living at his parents’ home, unemployed, committing burglaries, stealing cars and motorcycles, and taking whatever drugs he could find.

Galveston County sheriff’s officers got to know him well, and for the most part, Max liked the attention.  With no authority figures at home, he looked up to the police. He even helped them by ratting out drug dealers. Once in a while he made fifty bucks as a drug informant for the Galveston sheriff’s office. He had a friend there, a detective named Bruce Clawson. Clawson thought of Max as having the mind of a 12-year-old, and testified that he never swore out a warrant on the basis of one of Max’s stories, which could be lurid and exaggerated. Max learned that the wilder the story, the more attention he could get.

That’s how he came up with the idea of turning in a friend for the reward money. It was going to be his big score. When he was arrested riding a stolen motorcycle three weeks after the murders, he was high on drugs. The cop who arrested him told Max he was going to see he got thrown in prison for life for being a habitual criminal. Soffar decided he wasn’t going to spend life in prison for a stolen motorcycle.  He had already bragged to a couple of drug dealers and that he and his buddy had done the bowling alley murders. Now he had something big to offer the cops. He figured he would soon be home with $15,000 in reward money.

The Houston police and an assistant district attorney came to League City to listen. When Soffar balked at talking to them, they brought in his handler, Bruce Clawson, to get him to open up. Many years after Soffar’s first conviction, Clawson expressed regret about how he had misled Soffar. Soffar had routinely waived his Miranda rights after they were read to him, but when a suspect refuses to talk, that’s a sign under some legal interpretations that the interview should end, and the suspect wants a lawyer. Soffar asked Clawson what was involved in getting a lawyer and how soon it would take him to get one. Maybe a day, maybe thirty days, Clawson said. Clawson advised him that if he was guilty of the crime, he should talk to the police; if he was innocent, he should get a lawyer. I guess I’m on my own, Soffar told Clawson. Later, when Clawson observed a Houston detective questioning Soffar about the murders, he concluded that Soffar didn’t know a thing about the crime, that the police were feeding him details that would lead to his conviction.

It took police three days for the Houston police to get the confession they wanted. In his first signed statement, Soffar said he was waiting outside in the get-away car while his partner robbed the bowling alley and shot the teenagers. The next day, at the urging of the detectives, he said he went inside and watched his partner do the killing.

But forget about the partner. Harris County did. The son of a Houston police detective, he was hauled to the police station and appears to have invoked his Miranda rights successfully. His car and apartment were searched and nothing was found to link him to the crime. Greg Garner, the surviving witness, couldn’t pick him out of a lineup as the killer. He couldn’t identify Soffar, either. No record of the partner’s police interrogation survived, except a scrap of yellow legal paper that says, “Suspect is crying.” He was never indicted, because unlike Max Soffar, he never confessed.

It would have helped Soffar’s case if police had tape-recorded their interrogations of him. His case has been used as an example for legislation requiring that they do. Police had the technology at the time, but seem to have used it only when it suited their purposes.  (They recorded their interviews with Garner, for example.) Instead they talked to Soffar for hours, drove him to the bowling alley where he inaccurately described the crime, and wrote up statements for him to sign. By the third day of interrogation, Soffar was ready to say whatever he thought would get the process to end. And the police needed to charge him or let him go. Soffar told me he kept making up stories about buried guns and bodies that were so wild he thought the police would figure out that all he told was lies and that he knew nothing about the crime.

On the third day, the detectives told him he couldn’t say he had just witnessed the murders. He had to say he helped out. They had already cut his supposed partner loose. Soffar signed a statement in which he said his partner ordered him to participate in the killing. After shooting two of the men, the partner threw the loaded handgun across the room to Soffar and told him he had to shoot the last two. Soffar signed a statement  saying that first he shot one of the men. Next came the chilling sentences that led to his convictions:

“I walked around the other side of them and hesitated, and [he] said, ‘Shoot her.’ She had her face down and she just looked up at me and I aimed and turned my head and shot her. I think I hit her in the cheek.”

Prosecutors have claimed that this is a detail that only the killer could know, even though it published in the first Houston Post story the day after the crime. Soffar says he didn’t get the detail from the newspaper but from the police detectives.

Soffar said one of the detectives asked him,  “’Why did you shoot the girl in the face and everybody else in the back of the head or the side of the head? ‘ And that’s how I knew that Arden Alane Felsher had been shot in the face. That key element put into one of the statements and that’s how they hammered me into death row right there.”

More than one judge had observed that Soffar’s confession is all there is to this case, and none of it matches the surviving witness’s account.

In 2002 a rock-ribbed conservative judge for the Fifth Circuit Court of Appeals, Howard DeMoss, read Clawson’s affidavit and concluded that Soffar had indeed asked for a lawyer, not about a lawyer.  He and a second judge concluded that Soffar’s confessions had been illegally obtained and violated the Miranda act.

Had the court thrown out the confession as a violation of the Fifth Amendment , the state would have had no case because it had no physical evidence. The state appealed, and in a kind of tradeoff, the Fifth Circuit ruled that Soffar deserved a new trial because his court-appointed lawyer, the infamously casual Joe Cannon, known for sleeping during trial, had ineffectively defended him.

Then came the second trial in 2006, 24 years after the first conviction. It must have seemed strange to the jury to hear a case that old, with no mention ever made of the previous conviction.

Soffar’s defense team had a witness named Stewart Cook who had partnered with Paul Reid in a series of armed robberies. With Reid in Tennessee death row for killing seven restaurant workers in two different robberies, Cook thought he would write a book about Reid, a boyhood friend.  Cook signed an affidavit stating that Reid had told him he had committed the bowling alley murders. But Cook never went before the jury because the Harris County district attorney threatened to prosecute him for murder if he testified. 

Judge Mary Lou Keel would not let the Tennessee police detective who helped convict Reid testify about how closely the Tennessee murders resembled the bowling alley murders. She concluded they weren’t that similar. Nor would she let the defense show jurors how many of the details of the murder had been widely publicized on television and in newspapers.

When Garner testified, which he had not at the first trial, he couldn’t remember much.  The clean-shaven murderer with hair to his collar that he described to police did not resemble Soffar, who had a full beard and mustache and hair down to his shoulders.

The prosecutors said he had grown it after the murders. Besides, how accurate could Garner have been? He had been shot in the head, lost an eye and suffered brain damage.

Soffar’s defense was gutted.

His prosecutor argued that the confession was all the jury needed: “Why in the world would anybody ever do that, unless they did that or more and the answer is you wouldn’t. You wouldn’t say that. You wouldn’t make an admission. You wouldn’t say I shot Alane Felsher in the cheek…”

This was a masterful use of the word you. Most people are baffled by false confessions. They can’t imagine doing such a thing. The jury can’t imagine such a thing. And yet it happens all the time. More than one person confessed to the bowling-alley murders besides Soffar. He was a mental patient who was living with his mother. A study of exonerations holds that false confessions play a role in 25 percent of the cases.

One of the people who knows about false confessions is a judge of the Texas Court of Criminal Appeals, Cathy Cochran, who wrote a concurrent opinion about Soffar’s case. She cited some of the better known cases such as the Central Park Five, the subjects of a documentary movie by Ken Burns, and the Norfolk Four, subjects of a book, The Wrong Guys. Four of the Central Park Five were minors, held without legal or parental help and coerced into confessing to a brutal rape and beating that left a jogger unconscious. When the real rapist confessed, insisting he had acted alone, and his DNA matched with the rape kit, New York police refused to concede their mistake. In the Norfolk, Virginia, case, four sailors confessed to raping and murdering a young married woman in a small apartment. The physical evidence of the scene contradicted the theory of a gang rape. None of the sailors’ DNA matched the rape kit. The real rapist, whose DNA confirmed he was the criminal, confessed and said he acted alone, but again police insisted that anyone who confessed must be guilty.

In the Kafkaesque world of criminal appeals, Cochran concurred with the rest of the court that Soffar had no legal grounds for a new trial, writing: “...although I personally do not have great confidence in the reliability or accuracy of applicant’s written statements and hence in his culpability for the triple murders, I was not the chosen fact finder. Applicant’s experienced and extremely capable counsel presented the jury with all of the information it needed to decide that applicant made a false confession and that he was not involved in the bowling-alley murders. The jury rejected that factual conclusion, as it was entitled to do.”

But the jury had never heard an alternate theory to the case. It was excluded. All they had was the painful choice of convicting Soffar or letting him go. They couldn’t tell the judge that they had a reasonable doubt because they had never heard of Paul Reid.

When prosecutor Lynn McClellan retired, he told the Houston Chronicle that sending Max Soffar to death row a second time was the highlight of his career. He had read about the case when he was in law school, and hoped he would do something similar some day. It appears he missed what could have been a major triumph, admitting a mistake and prosecuting Paul Reid instead.

After Andrew Horne took on Soffar’s appeals six years ago, he asked the Harris County office for conviction review to consider Soffar’s case, but he never heard back. A couple of years later when he was in Houston and asked about the oversight, he recalls a prosecutor telling him, “Max is not a poster boy for innocence.”

He lacks what could be called the Harrison Ford factor. Ford played an innocent doctor in the movie The Fugitive. The character is a handsome, intelligent, educated man without a trace of bad behavior. He’s more like Michael Morton, the kind of innocent man who gets the most attention, the kind we can identify with. Max was not a good young man. He admitted to being a thief, a drug addict and a rapist. He tried to turn in a friend for a reward. Prison has changed him for the better, he said.

“I was a Class A knucklehead when I got there,” he said. “I got beat pretty severely because I would not conform to the rules and regulations. But those were lessons where I learned to respect the authority of those around me.

“I’ve learned an awful lot behind these bars for 35 years. I’ve met a lot of interesting people. I’ve met a lot of truly dangerous, crazy people. I’ve met a lot of good people. I wouldn’t change it for the world. I wouldn’t change it for the world because if I had changed it, I would be dead. Because I had a habit of sticking a needle in my arm and stealing from my own mom and daddy, and lying to people and doing things I shouldn’t have been doing. I surely wouldn’t have survived. No way.”

His liver cancer grew out of his battle with Hepatitis C, he said, which came from his needle use. Last December surgeons at John Sealy Hospital in Galveston removed tumors from his liver. Recently the pain came back, for which he is being given morphine.

“They told me I had this portal vein tumor,” he said. “It’s inoperable. Even a liver transplant wouldn’t save me. No hospital in the world can do anything for me.”

On August 11, Horne appealed to the Texas Board of Pardon and Paroles to commute Soffar’s sentence to life and free him from death row for what little is left of his life.  That would distinguish him from Paul Dennis Reid, who refused to talk to Soffar’s lawyers about the bowling alley murders.  Reid died of a heart attack last spring in Tennessee’s death row.  

Soffar could choose to move to the prison hospital at the Estelle Unit in Huntsville, but that would mean leaving behind his radio, his legal papers, and all of his belongings, including letters from the Swiss woman he married three years ago, and who visits him every six weeks.  Bad as conditions are for death row inmates, if he can’t be freed, he would rather stay put.

“I’d rather lie right there in my cell,” he said, pointing in the direction of his block at the Polunsky Unit, “and die right where I grew up.”

MORE: A columnist for the Houston Chronicle, Lisa Gray, reacted to this post with an article titled, "Will an innocent man die on Texas' death row?"

Related Links

• Cochran concurring opinion
• Study of exonerations
• DeMoss dissent
• McClellan

Send in the clowns: Montgomery County jail woes

The Montgomery County Commissioners Court's on-again off-again love affair with private corrections just took an odd turn.

Now, after recently selling a facility next door to their own jail to the GEO Group because they couldn't maintain the terms of the phony "nonprofit" created to facilitate the deal, word comes down the county supposedly must build a new jail or spend nearly as much (around $200 million) to renovate the old one, reported the Houston Chronicle (Aug. 16) and the Cleveland Advocate (Aug. 11)

The main difference between this situation and a circus is that clowns in the circus are professionals. The commissioners court's ill-considered launch and inept (and possibly corrupt) handling of the whole private jail mess has been a comedy of errors and misjudgements that would be funnier if local taxpayers weren't footing the bill. I'd be rather surprised if voters approve a nine-figure jail bond so they can go through the whole jail-building brouhaha again. (Wanna bet commissioners try to issue the debt without voter approval?)

Grits fails to understand after all these years why, whenever public officials suggest new jail construction in response to "overcrowding," reporters don't immediately begin to question the causes and solicit solutions for excessive pretrial detention. More to the point, why didn't the consultants hired by the county suggest those options? Like other jails in the state with an overcrowding problem, most Montgomery jail inmates have not been convicted of a crime (and will receive probation even if convicted). Instead, just more than two thirds of them, according to a 7/1 TCJS report, are in jail awaiting trial, still technically presumed innocent. Most simply cannot afford bail. Statewide, about 58 percent of defendants in county jails are awaiting trial; half is not at all an unreasonable goal.

Whether the old jail needs renovation I cannot say. But to the extent the issue is building more capacity, it's likely Montgomery County officials - particularly local judges - could resolve that  without new jail construction just by expanded use of personal bonds for lower risk defendants who can't make bail. They should try that before asking taxpayers/voters to trust them with another jail building scheme.

UPDATE: The Austin Statesman reported (Aug. 18) that the same consulting firm, Broaddus & Associates, has advised Hays County it has no choice but new jail construction to respond to recent overcrowding.

AND MORE: From Off the Kuff.

Throwing shade on driver surcharges

There have been two recent news articles on Texas' Driver Responsibility surcharge:

• Texas Tribune: Is traffic surcharge program a trap for Texas drivers?
• El Paso Times: Rep. Joe Pickett's proposed changes to Driver Responsibility Program taking shape

And two more opinion pieces calling for its abolition:

• Fort Worth Star-Telegram: Law allowing surcharges for certain traffic violations ought to be repealed
• Dallas News (Steve Blow): Driver surcharges throw too many Texans into financial chaos

Nearly everyone who examines this closely - whatever their base ideology - soon comes to the conclusions that it should be abolished because of the myriad, highly damaging unintended consequences the program generates. The sticking point: How to replace the revenue? But that's not an issue of math but of political courage and thus is much more difficult to predict.

See Grits extensive past coverage of the surcharge and efforts to repeal it.

Economics of Texas' border 'surge' unsustainable

I'm glad to see Texas legislators are beginning to question the enormous ad hoc expenditures recently approved for the governor's ill-considered border security surge. Reported the Texas Tribune (Aug. 12):

“The border has got to be secured. We’ve got to stop this,” said Committee Chairwoman Jane Nelson, R-Flower Mound. But the federal government would have to step in to make the effort sustainable, she added. “Month by month, we’re draining state resources that should go to education, should go to highways, should go to water, and we can’t do it forever.”

Democratic Sens. Juan “Chuy” Hinojosa of McAllen and Judith Zaffirini of Laredo emerged as the strongest critics of the deployment. Hinojosa said giving more funding to the Texas Department of Public Safety, which ramped up its border presence in June, would have been more effective than sending in the National Guard. Hinojosa voiced concerns that the National Guard’s concentration in the Rio Grande Valley would simply encourage smugglers and traffickers to move to Laredo and other points north.

"Those are issues that I think were not really thought out and planned out," he said. ...

National Guard and DPS costs will total $17 million to $18 million per month. [Adjutant General John ] Nichols said the costs for August will be somewhat lower, as many troops are still in training and not yet at the border, but the money will probably dry up by mid- to late October. Without a new infusion of financial support, he said, the Guard would then have to begin a gradual drawdown of troops.

Finally! After the state has thrown hundreds of millions of dollars at misbegotten border security boondoggles with little to show for it, the budget numbers are getting SO big that the Lege must confront head-on how to fund it. Given that there are no cost-benefit metrics to show these surges help anyone at all, at any level - especially compared to other public-safety expenditures like treatment courts or anti-recidivism and reentry programs -  eventually one imagines the surge must cease, possibly as soon as October, when the state is projected to run out of funds. Will the 84th Legislature, with Rick Perry out of the picture, choose to spend that money to keep DPS and the National Guard at the border instead of on education, healthcare or roads? Who knows? But it's clear the status quo of a joint DPS-Guard surge is as economically untenable as it is strategically dubious. To keep it up, they'll have to raise taxes or cut somewhere else.

Prison closures, anyone?

CORRECTION: An earlier version of this item misidentified Adjutant General John Nichols as state Sen. Robert Nichols. Grits regrets the error.

I hope they don't come out with a stat on bloggers

The FBI says 80 percent of police officers are overweight. "Researchers have said law enforcement personnel are 25 times more likely to die from weight related cardiovascular disease than the actions of a criminal."

Craig Watkins questioned over use of forfeiture funds in car-crash settlement

I admire Dallas DA Craig Watkins' work on innocence issues but some of his other decisions can be hard to square, like this item from the Dallas Morning News (Aug. 16). Here's the gist:

Dallas County District Attorney Craig Watkins came under criticism Friday for his secretive handling of a 2013 car crash in which he rear-ended another vehicle on his way to a speaking engagement at the Park City Club.

Watkins paid the driver of the other vehicle nearly $50,000 and shelled out more than $11,000 to a repair shop using money from the forfeiture fund — cash from seized assets — that he controls. Part of the settlement required the driver to agree not to tell the media about the crash or he would have to pay Watkins — not the DA’s office or the county — $40,500.

Dallas County Commissioner Mike Cantrell, the court’s lone Republican, said he’s concerned whether the funds were legally used and he wants a state investigation.

“It is almost like he was trying to buy silence with public funds,” Cantrell said of Watkins, a Democrat. “We are going to need to turn this over to the state attorney general.” ...

Generally, the settling of legal claims or lawsuits must be approved by the commissioner’s court, so it’s unclear whether the Watkins agreement is binding since it wasn’t approved by commissioners. For that reason, Cantrell said he believes Watkins entered into a contract on behalf of Dallas County without any legal authority to do so.

“We never saw the claim, we never knew the lawsuit was filed and we never knew anything about it,” he said. “The use of those funds out of the forfeiture account were clearly non-law enforcement uses.”

But [DA Office spokeswoman Debbie] Denmon said commissioners didn’t need to be informed because Watkins did not spend county money.

County employees are required to fill out a form when they are in an accident. Watkins did not fill out a form. Instead, the DA’s office sent the accident report to the county administrator. Denmon said the DA’s office believed that it acted properly.

“It’s more detailed and by the trooper,” she said, and not Watkins’ version of the events.

This may or may not be legal - entering into legal settlements without notifying the commissioners court seems dicey to this non-attorney - but either way it doesn't pass the smell test.  It sounds like Watkins' plan is to double down and insist that using asset forfeiture funds this way was kosher. That wouldn't be my strategy at a time when the feds are already investigating. An auto-repair guy told the paper the FBI asked him not to speak to anyone until they'd interviewed him. He doesn't have to admit wrongdoing, but it would help Watkins in his PR battle at least to acknowledge the bad optics.

From a campaign perspective, the worst part for Watkins - who faces Republican Susan Hawk in the November election - is that the report came out completely free of his opponent's fingerprints. Her campaign issued a "no comment" and let others handle the front-line assault. So the media narrative isn't that this is a campaign attack, though now Hawk's campaign can pick it up and bludgeon Watkins with it for the next three months. Watkins may still win anyway, but this news won't help him.

MORE: Here, here, and here from Tanya Eiserer at WFAA-TV who first broke the story.

Date set for hearing on interim charges on electronic privacy

As predicted, hearings on the Texas Senate State Affairs Committee's interim charges regarding electronic privacy are back on now that state Sen. Craig Estes has been elevated to chairman. The committee has announced a meeting specifically on those three, related interim charges at the capitol on Sept. 16 at 8 a.m.. They'll be taking public testimony.

My hopes for the hearings are that the committee recommends a) a version of the Estes/Hinojosa/Hughes legislation to require warrants for police to access cell-phone location data, and b) new restrictions on license-plate readers including limits on how long location data can be retained.

Some parts of the interim charges, particularly related to privacy vis a vis commercial vendors, I have less expertise than with law enforcement matters and thus fewer concrete suggestions regarding privacy enhancements. But I did see a related, recent essay - a speech, actually, to the Black Hat hacker conference - that offered several thoughtful suggestions that might inform those discussions.

The Obama Administration has consistently taken the position that neither cloud-based email nor cell-phone location data should require warrants for police to access them. Texas took a huge step last session in the opposite direction, passing the nation's first requirements for police to obtain warrants to access cloud-based email and other content. During the 84th session in 2015, we have the opportunity to similarly exert leadership regarding location data - both in the form of cell-phone metadata and license plate readers. This hearing September 16 represents an opportunity for the Senate to snub the Administrations' pro-snooping positions and contrast the state as a bastion of liberty compared to the Nasty Old Feds. Plus, it's the right thing to do and the public, including the conservative base and the state's thriving tech industry, supports it. What a happy convergence of interests!