Wednesday, March 18, 2015

Coin flip justice: Prosecutors threaten property rights

On Wednesday, your correspondent testified on behalf of the Texas Criminal Justice Coalition in favor of SB 95 by Sen. Juan Hinojosa which would raise the standard under which the state can seize assets without a criminal conviction under the state's civil forfeiture laws.

Hinojosa's legislation would require the state to provide "clear and convincing" evidence the property was associated with criminal wrongdoing instead of the current "preponderance of the evidence" standard (more likely than not). The bill was heard yesterday in the Texas Senate Criminal Justice Committee. Video is here; it's the first bill up. See coverage from the Dallas Morning News.

Remarkably, there was really only one opposition argument presented against Hinojosa's bill, and it took the form of a threat. Prosecutors told the committee that, if the Legislature insisted they only seize property when evidence that it was used in a crime is "clear and convincing," they would ignore that directive and seek forfeiture under a federal administrative procedure which provides fewer due process rights. The reason they don't do that now is that the feds want a 20 percent cut and don't typically process the smaller cases of a few hundred dollars the way state prosecutors are wont to do.

Grits found that position outrageous and was even more astonished that senators didn't seem affronted by being told, in essence, "If you insist we can't violate Texans' property rights under state law we'll cooperate with Eric Holder and the Obama Administration to go around you." Instead, some of them piled on with rhetoric about how greedy the feds were, how much DOJ hated due process, and treated federal forfeiture in general like a bogeyman that should scare legislators into acquiescing to whatever prosecutors wanted.

Even so, nobody made the claim that "preponderance of the evidence" is the better standard because they thought the state should be able to seize people's property when it's "more likely than not" it was associated with a crime. I think that's because there's really no good argument to support that view that any responsible, morally centered adult is willing to make in public. As I told the committee, a "preponderance" standard means that, if the chances are a scintilla above a coin flip, the state wins, and the government owns the coin. If it was your property, it wouldn't seem like too much to ask that the government provide "clear and convincing" evidence it was used in a crime.

In any event, there's an easy solution to the dilemma posed to the committee by this sort of prosecutor defiance. State Rep. Bill Zedler filed legislation this year, HB 2623, which would disallow state prosecutors from using federal forfeiture unless the amount is over $50,000, it's an interstate crime, or the property may only be seized under federal law.

If the committee simply amended SB 95 with the text from Mr. Zedler's bill, it would fully resolve all the concerns expressed yesterday and ensure that Hinojosa's legislation would actually provide the protections intended, and to which most of the committee (except Sen. Joan Huffman, who outright opposed the bill), seemed sympathetic.

The only other concern, expressed in passing, was that changing the standard could reduce forfeiture revenue to counties. But all the police and prosecutor interests who testified claimed that the overwhelming number of forfeitures - 99 percent, a San Antonio PD cop claimed - involved criminal convictions, so in those cases there's more than "clear and convincing" evidence and there would be no problem using forfeiture under the higher standard. Sen. Charles Perry said his local DA had told him a similar number for the proportion of forfeitures in Lubbock accompanied by criminal convictions.

To be clear, I don't believe for a second that it's true 99 percent of forfeitures involve cases where there's a conviction. The only reason they can get away with saying that is that there's no detailed reporting that drills down to that level of case detail, an issue other bills in play at the Lege this session may address. But if law enforcement can be taken at their word that nearly everyone with  assets seized are convicted, the budget worries entirely dissipate. Those cases will always meet a clear-and-convincing standard. In that sense, their arguments over raising the standard (that nearly everyone affected are convicted criminals) undermined the claim that forfeiture budgets would drop. Both can't be true.

In any event, the only cases where the state might not get as much revenue under Hinojosa's bill are situations where they can meet the slightly-better-than-a-coin-flip standard but not a "clear and convincing" one. And if the Texas Legislature decides the latter standard should prevail, perhaps prosecutors should abide by that dicta instead of immediately seeking to undermine and bypass the law. Or if they won't, perhaps the Lege should just make them.

RELATED: From Unfair Park.


Anonymous said...

On first blush a person might think that ASSET FORFEITURE would primarily be an issue for rich defendants because poor folks don't have assets anyway. In truth, civil asset forfeiture actually helps well heeled defendants identify and develop the best potential defenses that might be effective in the underlying criminal case.

Defense Attorneys can use the tools of civil lawsuits like depositions, interrogatories, requests for admissions and production. These tools are otherwise unavailable in Texas criminal procedure. What criminal defendant WOULDN'T want an opportunity to question the investigating officers UNDER OATH in advance? This is a golden opportunity... if you can afford it.

Of course there is a decent chance the prosecutors will drop the forfeiture suit when it becomes apparent that the litigation costs will seriously erode the value of any potential recovery.

Soronel Haetir said...

I would actually not be all that surprised if the cops are telling the truth on this one. Mostly because it would not surprise me if pretty much every bust is accompanied by some very minor forfeiture. Now, at the same time if you were to consider the total dollars seized instead of the total number of forfeiture cases I could well see the ratio (of forfeiture cases accompanied by a conviction versus those that are not) being quite different.

TriggerMortis said...

DA's are also seizing vehicles of those arrested on felony DWI charges even before conviction. This includes parents of minor children who have the child in their car when arrested. Completely destroying families and preventing the accused from being able to get to work, which impedes their ability to retain quality legal representation.

PS I think Huffman is as close to being a Nazi as anyone can be. She's just a despicable, miserable woman who is certifiably psychopathic.

Phelps said...

Federal forfeiture is a red herring for another reason -- within the last couple of months, the Feds WITHDREW that cooperation, and now will only allow federal proceedings if there is a Federal agency or grant involved, or if the alleged crime involved firearms or child porn.

Everything else is off the table to the local yokels now. THAT is why they are so terrified of this bill -- they are down to JUST the state proceedings.

Gritsforbreakfast said...

TM, if you think Huffman is a Nazi, IMO you likely know neither her nor Nazis. I disagree with her on this and a lot of other stuff, but comments like that force even her critics to defend her. She's not a one-dimensional prosecutor shill and neither is she dumb. Her core sympathies lie with the state and it's fair to call her a Big Government Conservative. But I could name a few pols in this state, starting on the Court of Criminal Appeals, whose politics IMO border closer to straight-up totalitarian. She takes some hard lines, but Huffman will also occasionally surprise you.

Further, as Mike Godwin is an old friend from the Daily Texan (who I just saw this week here in Austin at an EFF event), I hate to see Godwin's Law proven by a frequent commenter, particularly so early in a thread. Mike's ego is big enough without constantly affirming it! (Hi Mike!)

Anonymous said...

"Coin flip" as you put it, or preponderance of the evidence is the same burden of proof used for the issuance of arrest warrants, property seizures in eminent domain proceedings, assessment of child support, and nearly all personal injury lawsuits including medical malpractice lawsuits. In the 1980's Pennzoil obtained a judgment against Texaco for over 10 billion dollars based upon a preponderance of the evidence. This burden of proof is neither uncommon nor unreasonable in civil litigation which includes asset forfeiture proceedings. In spite of the few anecdotal problems which supporters of these reform bills so frequently cite, this remains a very effective law enforcement and crime fighting technique to reduce criminal behavior. Rightly or wrongly, civil asset forfeiture also results in savings to taxpayers by augmenting law enforcement agency budgets without burdening tax based coffers. The bottom line is the bottom line, as they say.

Anonymous said...

Scott, do you have any news on the EFF front? Thanks!

TriggerMortis said...

Scott, you don't know her. Look at what she's doing now.

Anyone with any sense at all can see through her newest pro-Nazi tactic.

Anonymous said...

If they went to the trouble to break into your house they should be able to keep whatever they took.

Anonymous said...

TM, the article you linked to is obviously written by a biased R. By now you should know good and well that Grits is also an R. I think he is, but could be wrong. BTW, Nazi? Really? C'mon man you are better than that.

Published on Wednesday, 18 March 2015 21:10 - Written by

But since he / she failed to put a name on it, I guess we'll never know who the hell actually wrote it.

*It should be noted that this was to be expected. When and if the AG's office sides with a D, we will see the R's come out swinging saying that the duties should be turned over to the local animal control or garbage collector. F^^ing politicians and the games we allow them to play.

Thomas R. Griffith said...

Grits, if we check out the links you provided, will we learn the names of the prosecutors thumbing their collective noses at - everyone and everything Texas?

*Thanks for taking time to attend these functions and for sharing what you learned. It would nice if you considered inviting people to attend or at least give us a heads up so we may consider it. IMHO, The reason why the Senators didn't seemed to be 'affronted' could be due to 'not' learning about the crowd out side, in the halls and three deep in the standing room only section. It's the classic - If we don't care enough to attend, why should they care enough to tell right from wrong?

(Yo there Mikee)

Anonymous said...

Jim wells county gets 100 thousands weekly from hiway 281 stops going south.. I don't see them giving that up without a fight..

Faith_No_More said...

Client gets arrested, uses cash for bail, then for attorney to attend, what's left to fight the forfeiture? Most cases involve a few cars, $7000, TVs, etc. It's rare to get a case or client who can handle all that out of pocket cash. I like the preponderance standard. ALso, I don't like DA's stingy offers at settlement, like "you get 20%" or you can provide all your financial documents, like receipts from 10 years ago. Let's punish the true dealer and leave the nickel and dimer's out of it.

Faith_No_More said...

I meant I like the clear and convincing standard. That would at least even the odds

Anonymous said...

The real standard is what would happen on appeal. Could a reasonable factfinder have determined that there was not more evidence than not, or; could that same factfinder have found that there was not clear and convincing evidence.
And usually the owner of the property has to provide an affidavit asserting ownership, which is usable evidence against him at a subsequent criminal trial.

Anonymous said...

doesn't really matter Henson only writes his article on a shirt tail riding basis. Look at his articles against TDCJ

Grandmom said...

Most of the time I'll put my good Democrat money where his mouth is!

Anonymous said...

Anon 3:46am
The problem with TDCJ is the head of the board broke the law! So of course everyone on down is either going to try it or even the honest TDCJ employees are going to be marked by it. Any citizen in the state of Texas would have been prosecuted for what he did. TDCJ has quiet a few guest in there for tampering and falsifying official government documents.