Monday, October 06, 2014

Habern: On plea bargains, parole, and the consequences of untested evidence

Long-time Texas parole attorney Bill Habern, whose comments on the Pamela Freeman case Grits appended to this post, followed up with an email pointing out an aspect of the parole process that deserves readers' attention:
One of the big problems with the Board is that 97% of everyone in TDCJ is there by plea bargain. Usually the deal is cut out in the hall just before the plea is entered in many cases. There is no pre-trial hearings relative to the contents of the police report or other allegations as to what the state says are the facts of the case. As a result of that matter way too many parole cases determined  (many years later) on those old police reports which every trial lawyer who ever defended a criminal case knows always contain errors. However, too frequently in plea deals the errors are never even raised or tested under the rules of evidence. Sometimes these are serious errors. Pre-sentence reports do not correct this issue, and in state court too few lawyers fight to correct those errors once the court receives a PSI [ed. note: presumably a pre-sentence investigation file]. After all, the client has entered a guilty plea, he said he did it, lawyers just do not seem to understand how important it is that a plea is based on correct facts.

Fixing those factual problems years later is one of the things that parole lawyers do. The parole board relies on these police reports when voting a case for parole. Thus the factual issues are not really faced until the defendant faces the parole board and learns what substantial errors are found in the police reports. Most of these errors are errors which will make no difference to the innocence or guilt of the offender, but damn sure make a difference to the parole board.

This whole parole system needs to be re-examined. In all the other states I have done parole work in, none of them operate like the Texas system. THIS PROBLEM IS NOT THE FAULT OF THE PAROLE BOARD--IT IS THE FAULT OF THE LEGE. [Emphasis in original.]


Steve said...

True PSIs are virtually dead in most courts in Texas. A vast majority of them are done as post sentence reports. There's not enough funding given to probation departments to have the necessary personnel to do them.

Anonymous said...

I can attest to error riddled PSI's and lack of effort on the part of defense in an open plea. This happened to us. This is precisely why defense attorneys do not like to allow defendants to see them. I was able to obtain ours for Mr Stouwie to use in our parole case. That said I have read 2 pages. On that 2 pages the errors were more than I can count on 3 hands. And yet I had an assistant DA and a judge state under oath they read it cover to cover. The PSI was -/+ 2 inches thick but yet VERY impotant info to his case was never mentioned in the PSI. Our defense attorney never objected and/or attempt to correct error.

It is also apparent that the PSI was gathered by a ill educated or undereducated employee.

My advice to anyone is to try like hell to obtain that document ASAP either before sentencing or for parole.

Anonymous said...

The PSI is not designed to correct the Police Report. That makes no sense. Blaming a probation department for the lack of effort by the defense counsel makes no sense either. The problem is everyone is underfunded. Everyone's salary is dismal.

Kevin Stouwie said...

I agree that the contents of the Board's file ought to be discoverable, perhaps with a copying and handling fee.

We all make clerical errors and mix up details in reports and documents. The more rushed or tired we become, the more errors we make.

Given the sheer number of parole cases voted every year, and the small number of people voting these cases, it is safe to assume that clerical errors in parole files sometimes unfairly prevent people from making parole. In my opinion, to assume hundreds of such mistakes occur per year is not an exaggeration.

I recall a conversation with a conscientious and hard working voter in which I said, "He has served over five and a half years on a seven year sentence." The voter said "No, he only has three and a half." I told her I was sure. She paused and dug through some documents and then informed me that the Board's file had a clerical error in it, but the judgment confirmed that I was correct.

I wondered at the time whether she would have still voted the same way had the error not come up during our discussion.

I cannot think of any good reason to keep the contents of the Board's file confidential.

Anonymous said...

It just seems to me that the whole parole system in Texas need a overall. My son committed a crime of agg. robbery at the age of 18. Got into a fight while a inmate, hit another inmate , inmate fell hitting his head and later died. Son charged with murder.Even tho it was a accident. We had no money to afford him a decent lawyer and he never was offered a plea deal.If he had been in in other state he would have been paroled by now, at the age of 45, years old.

Unknown said...

I think it's vile that there are multiple comments excusing the horrible way Texas cases are handled with, "they aren't paid enough." If you only do a good job if you are paid a large salary, why don't you get a different job? Shame on these employees!

Thomas R. Griffith said...


If you are probation at the time of arrest on a new unrelated charge and plead Not Guilty, (it doesn't matter if your lawyer is paid or appointed and you have five alibis witnesses and a receipt showing exactly where you were during the alleged crime) at some point during the next 120 days he / she will advise you to avoid or stop the jury trail in order to - "Take the plea".

"Guilty or Not, your probation was revoked just for being arrested while on probation, you are going to prison due to the revocation, take the plea". Of course, this a lie utilized by those in the Plea-Fence niche and enabled by the rogue ADAs and doodling Judges. The probation isn't revoked automatically, if it was, no one would accept probation in the first place. It's just an easy way out for those faking their way through the legal industry.

And, when the probationer's probation officer fails to attend the jury trial) or at least visit or reply to letters), he / she can't confirm the lawyer's advise and ends up confessing to a crime and doing time for both crimes. The crime victim is faked out with a false sense of security, thinking that the real criminal is going to prison and the taxpayers pick up the tab for decades.

Since there isn't any DNA and or Death Row links, the so-called Innocence Projects, fake legal clinics and District Attorneys' Conviction Integrity Units won't consider providing assistance due to the rules put in place that discriminates based on the fact that - one must have exhausted all appeals prior to filing for assistance. How in the hell are you going to exhaust all appeals when you are not appealing anything because you were advised to waived that right.

When they take you from the court's holding cell over to the judge's chambers and cross out Not Guilty and write no contest / nolo contendere underneath, you will sign a waiver showing that you declined a Pre-sentence investigation and another waiver showing that you gave up the right to protest your confession.

If you apply for a Full Pardon - for / based on innocence, you will be directed to comply with another set of Rules that forces you to contact the original three trial officials (Judge, DA, & Sheriff). You will be expected to obtain an unanimous decision from them and forward the replies to the TBP&P - Clemency Section (even if you are in the free world). It just isn't happening folks and everyone knows this.

With absolutely no incentives to read your letter and or reply, there is no way in hell that you will receive one. To reply with an 'Approved' stamp, would equate to them agreeing that they themselves and / or their good ol buddy has committed a crime in order to put you in prison for a crime you had nothing to do with. Failure to seek justice is a crime. Failure to Defend your client is a crime. Failure to oversee the court room you are assigned to is a crime.

Had their been a mandatory Investigation rule in place prior to the Defense being able / allowed to file the very first - Ready for Trial notice, this shit would come to a screeching halt. Shit meaning un-necessary plea bargaining and un-necessary jail / prison overcrowding.

*Shame on those that keep on commenting from the shadows regarding not being paid enough. And screw those that make a living TappingOut clients via lying through their teeth and the associations & bars that enable them. Shame on the probation department for allowing it. And maybe just maybe, Mr. Bill will visit this GFB posting and consider writing about this highly ignored portion of the poison that's killing Texas one plea at a time. Thanks.

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