Tuesday, June 30, 2015

On forensic oversight, backlogs, and prospects for revenge-porn statute's constitutionality

As I head out of town again for a couple of days, here are a few items which merit Grits readers attention:
  • Anthony Graves' appointment to the Houston crime lab board has been making headlines. Perhaps just as significant, his attorney Nicole Casaraz who secured his exoneration will replace Scott Hochberg as the board chair. That's an unusual profile for a crime lab, particularly one whose management was recently made independent of the police department. Congrats to both of them!
  • The 5th Circuit Court of Appeals reinstated a lawsuit by two former Houston crime lab employees (from when it was run by the police department) who alleged that "Harris County prosecutors retaliated against them after they exposed problems with the city's breath-alcohol testing vans, or 'BAT vans.'"
  • In San Antonio, somehow I'd missed news this spring that hundreds of DWI blood tests were mishandled in a contracted lab and the new DA couldn't use the evidence in cases. Oops.
  • Dallas is beefing up staff in its sex crimes unit in anticipation of performing DNA testing on more than 4,000 backlogged DNA tests.
  • Texas' much-lauded revenge porn statute appears on a collision course with recent First Amendment jurisprudence, as Mark Bennett tried to explain to legislators during session. For my part, I wish the debate weren't as facile as it has become, where valid legal criticisms are dismissed as detritus and the Lege just passes laws which poll well but cannot withstand constitutional scrutiny. We've done this a bunch in Texas now, with online solicitation, improper photography ... now we appear poised to go through the same rigmarole on revenge porn. Grits has nothing good to say about anyone who would engage in this activity, but acknowledging the legal complexity of the situation does not condone the behavior. In fact, it's how serious people go about actually solving a problem. We'll see how the courts receive the new statute; I'm not sanguine it has much chance of withstanding scrutiny, good intentions and high-toned rhetoric notwithstanding.

Official planning to reduce pretrial detention

While attention nationally has been focused on creative solutions to pretrial detention at Rikers Island, a number of advocates I know have already been abuzz about this Texas news reported in the Houston Chronicle (June 28): "Earlier this month, Nathan Hecht, the Chief Justice of the Texas Supreme Court, announced the creation of a committee to study the issue for the Texas Judicial Council, the policy-making body for the state judiciary. Depending on the results, they may throw their support behind changes in the next legislative session."

Meanwhile, in Houston earlier this month, the McArthur Foundation "awarded Harris County a $150,000 planning grant, one of 20 doled out across the country to gather data and encourage stakeholders to put together a proposal that is due in January."

Your correspondent has focused on these questions since the earliest days of this blog, so I'm glad to see elected officials finally pushing for action at the Legislature and in Harris County, which are the two main places change must occur if reforms are going to stick.

Sunday, June 28, 2015

What next to reform grand juries now that pick-a-pal is no more?

With Texas eliminating its pick-a-pal grand jury system during the 84th legislative session and Alfred Brown walking off of death row a free man following revelations of grand jury misconduct, I asked Amanda Marzullo, Policy Director for the Texas Defender Service, to visit with me about the implications of Texas' new reform and what remains to be done. Listen to the interview below and find the full conversation transcribed below the jump.

Saturday, June 27, 2015

Bills focused on forensics, habeas, alter post-conviction landscape

Several pieces of legislation related to forensics and habeas corpus passed this session which collectively alter the landscape surrounding junk science and post-conviction writs.

Solidifying grounds for relief under Texas junk-science writ
Grits has described the importance HB 3724 by Herrero/Whitmire in defending the jurisdiction of the courts to provide habeas corpus relief to defendants whose convictions hinged on junk science, whether because the forensic field at the time got it wrong or because an individual scientist did. Its passage comes with a decision pending from the Court of Criminal Appeals in Ex Parte Robbins III, which is now (un)complicated by the passage of a statute codifying their ruling in Robbins II.

The upshot of HB 3724 is that Texas' junk-science writ will become a highly functional tool in the judicial arsenal to correct error in junk science cases, as opposed to a seldom-used one that ignores most erroneous expert testimony. As Judge Cheryl Johnson  pointed out in her concurrence in Robbins II, as a practical matter judges don't evaluate science but evidence, and in the case of forensics in particular, testimony. So HB 3724 ensured that judges could directly confront the most common source of false convictions based on forensics that the Texas Court of Criminal Appeals sees on a fairly regular basis.

This legislation in a way sets the framework for a couple of other important bills which have received less attention from this blog, mostly because their passage was less fraught with drama.

In defense of 'OCW Empire Expansion'
For starters, SB 1743 by Hinojosa/Herrero expanded the jurisdiction of the Office of Capital Writs to include forensics cases filed under the junk science writ being clarified in HB 3724 above. The agency's expanded mission comes with an expanded name; it will become the Office of Capital and Forensic Writs, empowered to accept (or refuse) cases referred to them by the Forensic Science Commission. A friend of mine who was critical of the move called this the "OCW Empire Expansion Bill," but Grits was more supportive. I want this to be somebody's job.

Unfortunately, it won't be Brad Levenson's job. The Court of Criminal Appeals relieved the OCW chief of his position recently (a fact which seemingly hasn't been reported anywhere, oddly). So there will soon be a new leader at that office whose job will include incorporating forensics cases into the already over-subscribed attorney staff's caseload.

This scenario also imposes a new responsibility on the Forensic Science Commission, which must choose which cases to formally refer. Eligible cases include those accepted through their regular reporting system, as well as allegations of professional negligence or professional misconduct that the commission has taken up of its own accord.

The (legitimate) fear would be that, because no additional budget appropriation was included for the agency to fulfill this new function, the Office of Capital and Forensic Writs could be swamped if, for example, the FSC referred something as large as the Jonathan Salvador debacle to them for representation, an instance where hundreds of defendants are likely eligible for relief. (In that case, the grounds would be Brady, probably not the junk science writ, so perhaps it wouldn't be referred in any event; I mention it because it shows how the scope of forensic error can mushroom as one analyst may handle many cases.) Since the agency's caseloads are already considered by some to be too high, the fear was the expanded mission could harm capital representation.

Regardless, as a practical matter, either the FSC must limit what it sends the OCFW or the latter group must be particularly discriminating regarding what it accepts, certainly until its budget issues can be resolved. One suggestion has been for the Texas Indigent Defense Commission to use some of its newly appropriated general revenue money - even a couple hundred thousand dollars would help - to facilitate the OCFW's transition to its expanded role. Or perhaps the Governor's Criminal Justice Division could identify grant money to support the new mission. For now, that's all speculation. But the agency will need additional resources from somewhere if it's going to take on any significant number of these new sorts of cases.

Expanding habeas representation in agreed cases
Another modest bill to provide habeas representation to indigent defendants, SB 662 by Rodriguez/Alonzo, will now guarantee a lawyer be appointed in cases where the state agrees habeas relief is merited. In particular, judges would have to appoint a lawyer, "If at any time the state represents to the convicting court that an eligible indigent defendant ... who was sentenced or had a sentence suspended is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court."

This will have implications not only in some potential innocence cases, but also instances like the First Amendment cases Mark Bennett has worked on where people are convicted of an unconstitutional statute and become eligible for relief when the courts overturn it. This was among the legislative recommendations from the Texas Indigent Defense Commission.

Licensure coming for forensic analysts 
Finally, unrelated to habeas corpus but an important piece of the puzzle when it comes to forensics: SB 1287 by Hinojosa/Geren  requires the Forensic Science Commission to begin licensing all forensic analysts not already required to achieve accreditation by Jan. 1, 2019. They'll begin drafting rules much sooner than that: The whole process represents a significant expansion of the commission's role.

The bill defines a forensic analyst as anyone who "reviews or performs a forensic analysis or draws conclusions from or interprets a forensic analysis for a court or crime laboratory" and requires than all such individuals be licensed by 2019 if they're not already accredited by an established body recognized by the state of Texas.

This change puts Texas at the cutting edge of the move toward professionalization in forensics fields which have avoided close scrutiny before now. The rule making process will be interesting to watch. What a big job!

* * *

So the grounds for relief under the state's new junk science writ have been clarified once and for all, unaccredited forensic analysts will soon be licensed, and the chances people may receive representation on meritorious habeas writs have improved at the margins. These are significant steps, taken together. They'll likely affect a relatively small number of cases, but these bills collectively give courts and agencies new tools to confront these bleeding-edge issues facing the justice system surrounding junk science and post-conviction relief for false convictions.

Thursday, June 25, 2015

Widespread police testilying alleged: Tarrant DA responds by eliminating method of documenting it

When a prosecutor hears a police officer lie on the stand, should there be a process by which they document it, or should they just keep using that cop over and over as a witness in the future?

That's the core issue raised with the recent release of prosecutor assessments of alleged police officer testilying in Tarrant County DWI cases. In a story titled "Officers accused of lying, "winging it" by Tarrant County prosecutors, documents show" (6/20):
[Tarrant County District Attorney Sharon] Wilson said that though she could not confirm the allegations, she believed that handwritten notes on 19 of the forms potentially rose to the level of being Brady material — information that under the law must be turned over to the defense. Accordingly, her office as sent out some 4,000 Brady notices to defense attorneys who had cases in which the officer was in any way involved.

The 16 officers and three Breathalyzer operators whose credibility was questioned in the forms were unfairly maligned, were never given a chance to defend themselves and their agencies were never alerted, according to both a police union leader and an attorney for two of the officers. ...

Two Fort Worth officers and a former civilian breath test operator with the department were among those accused of lying, many times in testimony, during misdemeanor trials dating to 1993.

Nine other law enforcement agencies also received notice from the DA’s office that a former or current employee’s credibility had been questioned by prosecutors, including an Arlington sergeant who now serves in a high-ranking position.
Rather than formalize the assessment process, though, or assigning a supervisor to monitor content, the DA will simply cease having prosecutors fill out the forms. Seems like the wrong message.

The misdemeanor chief who authorized the memos, Richard Alpert, who is an appointee to the statewide Texas Forensic Science Commission, was demoted over the episode - for either not monitoring the contents of the memos (the stated reason) or for recording such opinions in the first place (a reasonable subtext) - and no longer manages other employees.

Grits continues to believe that access to documents about law enforcement misconduct for impeachment purposes will be the next big hurdle to full implementation of the Michael Morton Act and open-file discovery in Texas. Usually when I've said that I'm talking about police department disciplinary files, particularly in civil service cities. But this event reminds us that front-line prosecutors often are privy to testilying when it happens.

Shouldn't there be a requirement that they record it when they see it instead of eliminating the mechanism by which the DA's office discovered the problem? And now that the forms are gone, are prosecutors relieved of an obligation to disclose that knowledge just because they didn't write it down?

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article25066810.html#storylink=cpy

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article25066810.html#storylink=cpy ...

Wednesday, June 24, 2015

Fort Bend DA accused of Brady-related misconduct by state bar, and other stories

Grits has just returned from a whirlwind 2,000 mile car trip; here are a few items which appeared while I was gone that merit readers' attention:
  • KHOU reports that Fort Bend District Attorney John Healey and chief prosecutor Mark Hannah have been accused of Brady violations by the State Bar Commission for Lawyer Discipline stemming from one of the cases in the Jonathan Salvador fiasco. The prosecutors allowed evidence to be destroyed that could have been exculpatory and failed to notify the defendant in question about crime lab problems which would have supported habeas corpus relief. Lisa Falkenberg wrote about Healey's recalcitrance last year. There are many hundreds of similarly situated cases and more DAs than this one who didn't adequately notify defendants.
  • The Tarrant County DA issued thousands of Brady notices related to DWI blood tests performed at Integrated Forensic Laboratories and an analyst who switched samples in the lab. According to attorney Deandra Grant, "Apparently the new story is that Elizabeth Feller’s name may be on countless lab reports but she did not perform the actual analysis. Or maybe she did.  No one but IFL knows." See coverage from the Fort Worth Star-Telegram.
  • A South Texas police chief accused of stealing money from the feds has been found dead, a suspected suicide.
  • The number of defendants on death row is declining, but not because of more executions, which have also gone down, reported the Texas Tribune. Instead, there are fewer new death sentences on the front end, and no new death sentences so far in 2015.
  • The Court of Criminal Appeals turned down Fran and Dan Keller's petition to be declared actually innocent. Last month they overturned the conviction but not on actual innocence grounds.
  • Here's a local story on how Amarillo officials are wondering how they'll combat truancy now that it's decriminalized. I'm sure they'll figure it out, lots of other states have. See a related editorial from the Dallas News.
  • It'll be fascinating to learn after everything shakes out how many of the 177 bikers arrested in the Twin Peaks massacre in Waco and saddled with million dollar bail turn out to be completely innocent. I bet it's a bunch of them. I'm also curious to learn how many of the 9 dead were shot by law enforcement. Those data haven't been released yet.
  • Pam Colloff knows something Murray Newman doesn't: You can't argue with stupid. Read as Murray valiantly tries to edumucate a self-styled right wing journalist on the Anthony Graves case via Twitter. Really quite out there for anyone who knows the story.
  • Speaking of Anthony Graves, Grits was notified today via press release that the exoneree and former death row resident was named to the board of the Houston Forensic Science Center, recently spun off as an independent agency from Houston PD. Congratulations, Anthony!
  • See coverage of a Fourth Amendment victory at the Supreme Court.
  • I'm late to the party - comments closed May 15 - but check out draft regulations issued this spring from the National Commission on Forensic Science on a variety of important forensic-related issues. 

Saturday, June 20, 2015

Abbott signs bill codifying broad reading of Texas junk science writ

I'm out of town and won't have time to focus on recent veto announcements until later, but I couldn't resist passing along the excellent news that Gov. Greg Abbott signed HB 3724 codifying the Court of Criminal Appeals' decision in Ex Parte Robbins, holding that Texas' new junk science writ applies both to bad science and bad scientists.

This now moots the Court of Criminal Appeals' consideration of a motion for rehearing on the case. The new legislation ensures that the ruling from last fall in Robbins, or something essentially similar interpreting the new language, will ultimately prevail. (One imagines Judges Michael Keasler and Larry Meyers had conniption fits upon hearing the news.)

At one point, the bill sponsors were being told the governor's staff recommended a veto on the bill, so this ends a tense period that actually cost your correspondent considerable sleep in the last three weeks. It'd be interesting to know the backstory as to how that recommendation was overruled, but at this point that's trivia. The bill is law. The whys no longer matter. They got it right in the end.

Many thanks to Chairmen Abel Herrero and John Whitmire for their diligent leadership on this. And special thanks should also go to staffers Amanda Woog and Terra Tucker, and to Amanda Marzullo from the Texas Defender Service, who worked as hard as anyone to pass the bill. I'm surely forgetting others -  many people lent a hand when they were asked and I won't name them all here - but Grits is immensely grateful to everybody who helped out.

For me, this completes a process begun seven years ago when the original statute was first conceived, and it's been a remarkable roller coaster ride since then. Going forward, the statute will allow defendants to challenge false convictions whenever they relied on either bad science or a bad scientist at trial. And given the revelations in recent years regarding high error rates and a lack of scientific grounding regarding numerous forensic fields, the implications of the legislation may become even more significant over time than they seem today.

What terrific news! Congratulations and many thanks to everyone who helped make this possible, including to Gov. Abbott for signing the thing.

Friday, June 19, 2015

Ex-parole commissioner rejects probation on document tampering charges; trial late this year or next

A friend of the blog spoke to the prosecutor in the document tampering case against former parole commissioner Pam Freeman and informs Grits that, "Freeman turned down probation, so at this point, she wants her day in court. Trial will not be until late this year or early next year."

So there you have it. I wanted to update this recent post mentioning her scheduled day in court. More delay is the bottom line.

Thursday, June 18, 2015

Abbott tells drug users: 'Drop dead,' and other stories

Here are a few items that merit Grits readers attention while your correspondent makes his way out of town for a few days. Blogging will be light until I return, but in the meantime check out these stories:

Staff sex with prisoners seldom leads to jail time
The Marshall  Project published an extensive feature on the infrequency with which Texas prison guards who coerce sex from inmates are punished with criminal convictions and jail time.

Abbott to drug users: Drop dead, literally
The Houston Chronicle published an editorial lashing Gov. Abbott for vetoing Texas' Good Samaritan statute, HB 225, quoting the House-side bill author disputing Abbott's claim that he offered amendments to the bill. In fact, the governor's office offered amendments at the eleventh hour in the senate only, after the bill had already overwhelmingly passed the House. The rejected changes were not legitimate concerns but poison pill suggestions that would have made the bill worse than current law. As the Dallas Observer put it, Abbott appears to think "better that five junkies die of overdoses than 10 overdose and live."

A 'banner session' on criminal justice?
Greg Glod from the Texas Public Policy Foundation authored a column declaring the 84th Texas legislature to be a banner session on criminal justice. I can understand that argument, though Grits had earlier offered a less sanguine assessment. The things they accomplished were worthy, but much more was left on the table.

Wednesday, June 17, 2015

Public safety unions revealed as 'weak,' 'ugly' in SA mayor's race

Among the big losers in the San Antonio mayor's race won by Ivy Taylor: Police and firefighter unions, who backed Democrat Leticia Van de Putte with over-the-top attack ads aimed at her opponent. From the SA Express-News:
Public Safety Associations: The San Antonio Police Officers Association and the San Antonio Professional Firefighters Association spent unseemly gobs of money supporting former state Sen. Leticia Van de Putte and attacking Taylor. With contract negotiations in the balance, the associations had a lot on the line this election. And that was part of the problem: Their support of Van de Putte only made it look like she would have carried their water. Plus, their ugly attacks on Taylor only generated sympathy. And to top it off, they couldn’t deliver the few thousand votes needed to turn the election to their favor, which makes them look weak. Now, oh joy, they get to negotiate with ... Taylor. Loser.

Tuesday, June 16, 2015

National exoneration trends: Harris County leads nation in false drug-crime convictions

Find below the jump an update from the National Registry of Exonerations summarizing trends among false conviction data. Notably, Harris County is driving national data on drug-crime exonerations.

Monday, June 15, 2015

And the new Innocence Project of Texas ED is ...

Your correspondent today begins a new gig as Executive Director of the Innocence Project of Texas (IPOT) following a significant bout of staff turnover in the last few months. Pam Colloff of Texas Monthly broke the news this morning.

The group's office will soon be moving to Austin from Lubbock and with any luck there'll be several additional, exciting announcements in the near future about new directions the group will be taking. As regular readers may imagine, I have lots of ideas.

I worked for IPOT as their policy director from 2008 until last year, when they were forced to scale back staffing due to a budget crunch. So this is a bit of a homecoming for me. I know the group well and have a pretty good sense of the job. And it presents an exciting opportunity at an historical moment when the state is about to (re)study the causes of false convictions and recommend solutions through a formal innocence commission.

I appreciate the board giving me the opportunity and also support from outgoing legal counsel Jeff Blackburn, my long-time friend, who has assured me there are no hard feelings. (He left unhappy, but his beef was never with me.) And thanks in advance to Nick Vilbas, who I'm replacing as executive director, for all the help I'm going to need in the next couple of weeks transitioning to the job.

This oughtta be fun.

MORE: From the Houston Chronicle.

Sunday, June 14, 2015

Alone Time: Solitary confinement roundup

Here are a few items related to solitary confinement that merit Grits readers' attention:
  • Anthony Graves published a column in Time magazine describing his time in solitary confinement, and spoke to the issue of releasing people directly from solitary to the free world: "Freeing an inmate from solitary can be risky. You’re taking someone who has had no hope, no tools to succeed in this world, and you’re putting them back in society and asking them to do the right thing. Sometimes they’re so angry and hopeless that they commit another crime just to go back in."
  • Albert Woodfox, one of the Angola 3 in Louisiana, was released unconditionally after an astonishing 43 years in solitary confinement. See background here and here.
  • Here's a story of a 19th century serial killer who spent a "half century" in solitary confinement.
  • A federal lawsuit in Virginia is challenging whether death row inmates must automatically be assigned to solitary confinement. In the early stages, but this would be a big deal if it makes.
  • See recent reports on solitary confinement from the Vera Institute and the ACLU of Texas.

Saturday, June 13, 2015

Joyce Ann Brown, R.I.P.

I'm informed that Joyce Ann Brown, one of Texas' earliest and most vocal exonerees whose case received national attention, has passed away. Grits is sorry to hear that, she was an iconoclast and an impassioned and outspoken advocate for justice. She and I sometimes disagreed on priorities or strategic approaches, but I respected her.

See here and here for background on Joyce Ann's false conviction and pre-DNA exoneration in 1990, spearheaded by the intrepid Centurion Ministries.

For many years, a lot of folks treated Brown's case as an outlier. After dozens of Texas DNA exonerations re-framed the debate around innocence, however, it's clear in hindsight her story was more prototype than aberration. She was a brave, passionate fighter and I'm proud to have known her.

See below a picture of Joyce Ann with Elizabeth Ramirez of the San Antonio Four in April at a screening of a documentary on that case in Dallas.

Photo via Mike Ware
MORE: From the Dallas News, and an editorial praising Brown and other exonerees who have fought for improvements in the system. AND MORE: Here's an extensive obituary/remembrance at the New York Times.

Friday, June 12, 2015

Charles Sebesta disbarred!

BREAKING: Charles Sebesta, the prosecutor who withheld exculpatory evidence at Anthony Graves' capital murder trial, has been disbarred after a private trial vs. the state bar's disciplinary counsel, reported Pam Colloff on Twitter.

Here's a copy of the judgment. See related Grits coverage.

MORE: See Pam Colloff's initial coverage from Texas Monthly. See coverage from the Texas Tribune and the Houston Chronicle.

On the folly of releasing prisoners directly from solitary to the free world

Texas features prominently in the Marshall Project's Christie Thompson's investigative feature on state prisoners released directly from solitary confinement into the free world. Good stuff; give it a read. See also 2014 Texas data on length of stay in ad seg and the number of inmates released directly to the street (1,445), including those released with no parole supervision whatsoever (832).

Speaking of ad seg, this reminds me of another report, this one from ACLUTX on solitary confinement, that Grits never read because it came out after the 84th legislative session began. Here's the pdf version. Add it to the summer reading list.

Related Grits posts:

Thursday, June 11, 2015

On bail, plea bargains and innocence

Proponents of bail abolition this week found succor in several high-profile national media investigations into the topic, starting on Sunday night with HBO's John Oliver:
And of course, issues surrounding bail are at the center of the mess in Waco regarding the Twin Peaks biker shootout, where it appears likely that innocent people were indiscriminately rounded up and jailed on a $1 million bond. Recent Texas Tribune coverage began:
More than three weeks after Waco police arrested 177 bikers following a deadly shootout at a local restaurant, no charges have been filed in the killings, nearly half the bikers remain in jail on unusually high bonds, and more than a few legal experts — including former prosecutors — are starting to wonder what is going on in McLennan County.
Regular readers will recall that McLennan DA Abel Reyna's super-tough plea policies were already causing jail overcrowding and backed up court dockets in Waco. But this episode takes the cake.

The issues surrounding bail, pretrial detention, and underutilized pretrial services programs are long-time fodder for this blog, dating at least to this series focused on Harris County in 2005. I'm glad to see the subject finally receiving wide attention, and hope it keeps up.

Eliminating bail and replacing it with risk-assessment-based decision making and monitoring by pretrial services divisions would reduce jail overcrowding as well as enhance individual rights, since there would be far less disincentive to waive them in order to get out of jail quickly.

A lot of low-level, less serious innocence cases - where a defendant is actually innocent but pleas guilty because of the rotten cost-benefit analysis associated with going to trial - might be uncovered if we were to change the incentives around jail, bail, and plea bargains. Right now those instances are masked in part because defendants who can't make bail face an overwhelming incentive to plea bargain, whether they're innocent or not.

Wednesday, June 10, 2015

Released from death row, 'exoneration' disputed: The Alfred Brown case

The release of Alfred Brown - sentenced to death in 2005 after it was revealed that the Harris County DA's Office withheld key evidence and a corrupt grand jury manipulated an alibi witness - marks the end of an awful saga for one man, and the beginning of a debate about his story's meaning. See coverage from:
Press accounts pinned the proximate cause of Brown's release on a Brady violation (the state withholding exculpatory evidence), in particular phone records which corroborated his alibi. According to the Houston Chronicle:
Texas' highest criminal court on Wednesday threw out the 2005 conviction and death sentence of Alfred Dewayne Brown after finding that the Harris County District Attorney's Office withheld material evidence favorable to Brown's case.

In a brief order, the Texas Court of Criminal Appeals sent the case back to the lower court for a new trial.
It's especially poignant when someone walks away from death row a free man. (Radley Balko reported, "According to the Death Penalty Information Center, Brown is the 12th death row exoneration since 2013, and the fourth death row inmate exonerated so far this year.") What greater contrast could there be than to take someone awaiting death in a small box and send him home, declaring him free and clear?

The DA's Office went out of its way to avoid declaring Brown "innocent" - which would have entitled him to state compensation - much as Burleson County prosecutors did to Anthony Graves, at first. But it is certainly true Alfred Brown is "not guilty." The DA's decision not to formally exonerate him likely sets the stage for civil litigation, which may not end up being the wisest choice the widow Anderson ever made. She has missed an opportunity to put the issue behind her and wear a white hat. Whatever chits she earns with the police union from sticking to her guns won't outweigh the role of obstructionist/villain she risks playing in Lisa Falkenberg's Pulitzer-Prize winning saga at the Houston Chronicle about the case.

Amazing the lengths folks will go to to keep from saying "We made a mistake."

Regardless, Mr. Brown will be considered "exonerated" by national standards, reported the Chronicle:
Monday's decision does mean Brown will be listed as "exonerated" by Maurice Possley, a senior researcher at the National Registry of Exonerations.

"He fits our criteria," Possley said.

He said the requirements for exoneration are that a conviction goes away, either because the charges are dismissed or an acquittal at a retrial, and there's evidence that was not available at the first trial that is favorable to the defendant.
So barring new evidence, DA Anderson and the police union likely are on the wrong side of history on this one. Brown will be "exonerated" in both public perception and historical accounts whether or not the court or the state ever formally declares him innocent.

DNA test cleared rape allegation against prison guard

Here's a story of a front-end DNA exoneration I hadn't heard before which occurred in the Texas prison system - a guard falsely accused of raping a female inmate. The anecdote appeared in a recent Marshall Project story on Nigerian guards working in the Texas prison system:
In 2009, a Nigerian officer in Huntsville named Marshall Akpanokop was accused of raping and impregnating a female prisoner. He was later proven innocent when a DNA test revealed that he was not the father, but Akpanokop sued the agency, arguing he had been “singled out as the culprit” because “he was a dark-skinned, Nigerian national with an accent.”

Monday, June 08, 2015

Lamenting missed opportunities on criminal justice

The 84th Texas Legislature witnessed a few bright spots on criminal justice: E.g., ending the pick-a-pal grand jury system, giving judges tools to combat junk science via habeas corpus, scaling back use of state youth prisons, decriminalizing truancy, and, perhaps the biggest one that's received no MSM attention, adjusting property theft thresholds for inflation for the first time since 1993. Fourteen or 16 years ago, Grits would have considered that quite a successful session. But times have changed and, compared to the opportunities left on the table, these successes as a whole leave a lingering taste of weak tea. The Houston Chronicle editorial board last week summed up the cause for disappointment:
Like practically every other issue confronted by the Legislature, criminal justice reformers ended up with a mixed bag of moderate accomplishments, watered-down deals and failed bills. They even drew a veto from Gov. Greg Abbott, who struck down a Good Samaritan bill that would have protected people from prosecution if they call 911 to report a drug overdose. Apparently saving lives isn't as important as being tough at any cost. And that's a cost that adds up. On average, Texans pay $51 a day to keep someone in a state prison and $59 to keep someone in jail, according to the Texas Criminal Justice Coalition. In contrast, it is only $1.56 to supervise a probationer. So while U.S. Sen. John Cornyn is working at the federal level to pass legislation that would allow low-risk prisoners to spend more time in home confinement instead of in prison, state legislators have kicked that can down the road.

Despite pre-session hype, legislators failed to pass legislation that would lower penalties for nonviolent offenders, notably state Rep. Joe Moody's bill to decriminalize marijuana. No wonder the Department of Criminal Justice general revenue budget grew by nearly half a billion dollars for the next biennium. All that money does little to actually reform prisoners and help them become productive members of society. Legislators even ignored some of the lowest-hanging fruit among criminal justice fixes: Treat 17-year-olds as juveniles rather than adults. Intensive juvenile detention and probation programs can put kids back on the right track, and federal law compels Texas to change this standard. But apparently, legislators are content plucking teenagers out of society just as they approach adulthood and surrounding them with hardened criminals.

Texas doesn't make it easy when people leave prison, either. A bill to "ban the box," which would prevent state agencies from asking about one's criminal history on job applications, passed the state House but not the Senate. Supported by the Center for American Progress, a progressive think tank, and the conservative Koch Brothers, this initiative is supposed to help convicted felons get their foot in the door for job interviews before having to reveal their records. As Houston Police Chief Charles McClelland said in a radio interview last year, there's "a lot of young men who are minorities, in their early 20s, have a felony conviction on their résumé, and now they're unemployable."
Grits would add to that critique a failure to pass any meaningful reform on the Driver Responsibility surcharge. (DPS did to commit to Homeland Security and Public Safety Committee Chairman Larry Phillips that it will roll out more Amnesty periods in the near future.) And asset forfeiture legislation appeared promising on the front end but stalled out thanks to opposition from leadership.

Perception of success is relative: Some good things happened this session, and we didn't take too many overt steps backward (a few). But compared to what should have been done, what needed to be done, it was a disappointment.

Friday, June 05, 2015

Parole commissioner trial scheduled Monday, million dollar biker bails, and other stories

Grits has yet to fully recover from the legislative session so blogging remains light. Here are several items which under normal circumstances likely would have made it into independent posts:

Ex-parole commissioner's record tampering trial scheduled Monday
Former Texas parole commissioner Pamela Freeman is scheduled to go on trial Monday morning at 9 a.m. in Walker County for tampering with government records, according to the Walker County records system. See background on the case from parole attorney Kevin Stouwie and prior Grits coverage. Thanks to a commenter for the heads up.

Complaint filed against JP who set million-dollar biker bails
Grits hasn't had bandwidth to closely follow the case of 170 bikers arrested after a shootout in Waco, but I'm pleased to see a complaint was filed with the State Commission on Judicial Conduct against the Justice of the Peace who ordered $1 million bonds for every defendant. Austin attorney Keith Hampton has filed a habeas corpus petition demanding that individualized bail hearings be handed off to out of county jurists. That JP shouldn't be setting bail, anyway, if he can't do so based on a defendant's individual circumstances: Sometimes it seems as though officials in the McLennan justice system don't understand they're bound by the same laws and ethical constraints that govern everyone else.

Jail phone calls and the Michael Morton Act
If a jail records all inmate phone calls are prosecutors required to vet them for Brady material under the Michael Morton Act? Tarrant County requested an AG's opinion on the issue, as reported by Texas Lawyer. Remarkably, "if the AG opinion finds that the Morton act does require prosecutors to review inmate calls, then the office might ask for a revision to the county's contract for jail telecommunication services to completely remove prosecutors' access to the calls."

You can't manage what you can't measure
See coverage from the Dallas News of legislation to gather data on police shootings and serious use of force.

Texas vs. One Gold Crucifix
See a feature from the Coalition for Public Safety on asset forfeiture abuses.

Prisoner publishing 'Arts and Letters' column
In Dallas, D magazine is publishing a series of columns on topics of "Arts and Letters" from federal prisoner Barrett Brown, who was sentenced to 63 months in prison for helping cover up in the aftermath of the Stratfor email leak. See his latest column here and also past offerings.

'Why the criminal justice system is a massive failure'
Such is the title of an op ed this week in the Austin Statesman.

Wednesday, June 03, 2015

Difficult to read tea leaves from oral arguments on junk science writ

The vote on the Court of Criminal Appeals interpreting Texas' junk science writ looks to be ridiculously close - probably another 5-4 outcome - judging from oral arguments this morning in Ex Parte Robbins. But no one, I think, could reasonably guess after today's arguments which way it might go.

Neal Robbins' attorney Brian Wice called recanted testimony from Dr. Patricia Moore the lynchpin of the case and his opponent, Bill Delmore, agreed that if Dr. Moore was wrong (which is her revised opinion about her original testimony), Robbins gets relief. But the discussion from the judges indicated the outcome likely won't be that simple, even if it should be.

The judges who wanted to debate legislative history last go-round shifted gears, for the most part, in light of passage of HB 3724 codifying the court's ruling in this same case from last fall. Judge Elsa Alcala read aloud from the bench the senate bill analysis specifically declaring the bill's intent was to codify their decision.

There was some grumbling, though, particularly from Judge Sharon Keller, that the Legislature couldn't interpret its own statutes post hoc, though the sort of verbal commentary about intent she was describing is quite different than the formal act of passing a second law codifying a court's interpretation of a first one. There was additional discussion of whether they should consider HB 3724 at all before the governor signs the bill, and a surprising level of willful indifference regarding the implications of the new legislation.

Still, with the legislative intent argument weakened, Judge Michael Keasler hoped to change the focus to a harmless error analysis. And that seemed like the avenue which may prevail if the state wins this rehearing, even though it wasn't even part of the discussion last year. How it could be harmless error that a medical examiner wrongly called a death a homicide in a capital murder trial, it's hard to say, but that's where some judges wanted to go.

Indeed, as Mr. Delmore said, it's hard to imagine the outcome at trial would not have been different if no one could say the death was a homicide. But granting that didn't seem to dissuade Judge Keasler, in particular, from pursuing the harmless error line of reasoning. 

From their comments at this morning's arguments, I'd guess the four dissenters still on the court - Keasler, Hervey, Keller and Meyers (who was absent today) - will all stay in opposition to Robbins' petition. Meanwhile, David Newell voted against rehearing and seemed sympathetic to the implications of the Lege passing HB 3724. If he sides with the Robbins II majority, that makes Yeary and Richardson the two swing votes. Richardson's questioning was brief and unrevealing; Yeary's comments cut both ways. I couldn't begin to guess how they might vote. This one's going to be tight.

MORE (6/4): A Dallas News staff editorial encouraged the Governor to sign HB 3724. See also coverage of oral arguments from the Houston Chronicle's Mike Ward.

See related Grits posts:

Report: Emerging issues with the Michael Morton Act

In mid-session, the Texas Defender Service and Texas Appleseed came out with a joint report titled, "Towards More Transparent Justice: The Michael Morton Act's First Year," evaluating Texas' new criminal discovery law that took effect January 2014. But Grits couldn't focus on a lengthy, law-review style analysis at that frenzied point, so only read the document yesterday. For anyone with a professional interest in the matter, the whole thing is worth reading. On the assumption that few lay readers will take the time to do so, however, let's offer up a brief, cherry-picked summary of the highlights:

Monday, June 01, 2015

Greg Abbott to veto harm reduction legislation

Grits was informed this afternoon by Rep. Ryan Guillen's staff that the governor will veto HB 225 creating a defense to prosecution for people who call 911 during a drug overdoses. Because, why would you want to prevent a drug user from dying? Twenty-four states and the District of Columbia have passed Good Samaritan laws that protect overdose witnesses and victims who request emergency medical assistance

The bill passed 140-4 in the Texas House and 30-1 in the Senate, so until now it didn't seem controversial.

Thankfully, a portion of the bill expanding access to naloxone, an opiod antagonist, passed as a standalone, SB 1462, and also went to the governor. Maybe that piece will make it through.

See prior Grits coverage here, here, and here, and the House Research Organization report (pdf, p. 21) on the bill. See also a detailed (88 page) fact sheet on Good Samaritan laws and overdose prevention from the Network for Public Health Law.

What a terrible decision. That doesn't bode well.

UPDATE (6/2): The bill has been formally vetoed. Reported the Texas Tribune, "In a veto statement Tuesday, Abbott said HB-225 lacks 'adequate protections to prevent its misuse by habitual drug abusers and drug dealers.' He noted his office came up with amendments to address the concern, but they did not make it into the final version of the bill." That's a bit of a half-truth. First, Abbott's people never raised concerns with the House author at all, waiting to intervene after the bill had already won overwhelming approval in the lower chamber. And second, some of Abbott's amendments were accepted, but the rest were designed to thwart the fundamental intent of the bill. Plus, his staff kept moving the target. Some observers believed Abbott's amendments would have made the bill worse than current law in terms of providing disincentives for calling 911 in an overdose emergency. Further, there's really no valid use case where "misuse" can even be credibly hypothesized, all the valid concerns were entirely addressed. But a veto doesn't need credible argument, just a stamp and a signature. 

MORE: See additional coverage from the Dallas Observer

Previewing oral arguments on TX junk science writ

The 84th Texas Legislature ends today but Grits is already looking forward, as are a few stalwart reporters who're paying attention, to oral arguments on Wednesday at the Texas Court of Criminal Appeals for Ex Parte Robbins III, deciding once and for all (or at least, for now) whether the state's new junk science writ will be interpreted broadly, as the court ruled last year, or narrowly as the presiding judge and a strident minority on the court would prefer.

At the Houston Press, Craig Malisow previewed the case and the Marshall Project's Maurice Chammah wrote about it last week. And of course, in this Grits podcast, Texas Defender Service policy director Mandy Marzullo described the complex interplay between the law the court will be interpreting and a new statute sent to the governor last week essentially codifying the court's ruling from last year. Grits had earlier described the odd scenario witnessed this spring as a "race": After  three new members joined the court, it was announced they would rehear the case. So, the legislature rushed to pass a remedial statute before the least dangerous branch could weaken its earlier decision. See an amicus brief submitted to the court by the Innocence Project of Texas.

For Grits, Wednesday's arguments represent the final stage of a journey that began back in 2008 when the idea for a junk science writ was first developed - among the first things I worked on at the Innocence Project of Texas. That effort gained greater steam after the National Academy of Sciences in 2009 issued a major report critical of the lack of scientific basis underlying several prominent forensic methods and techniques and their presentation in court. Then the suggestion was endorsed by the Tim Cole Advisory Panel on Wrongful Convictions. When the bill passed in 2013, it was the first in the nation of its kind (California followed suit with their own version earlier this year). And then the tight 5-4 decision last year gave the new law about as much life as any of us could have hoped.

I'd like to think the Herrero/Whitmire bill codifying Robbins II would settle the matter, since that case itself hinged largely on questions of legislative intent. But Grits is not entirely confident that was the principle reason for opposition last time around so much as the nearest available excuse. So I'm slightly less sanguine about the outcome than one might expect, despite the 84th Legislature's clear expression of legislative will. If anybody can pull it off, though, it's Robbins' attorney, Brian Wice, against whom one wouldn't want to bet in a rubber match. Time will tell. Wednesday ought to be fun.

Grits' end-of-session reading list

Now that session is ending, Grits has quite a bit of backlogged reading in front of him. For my own convenience I'm gathering links here, and maybe some of y'all will be interested in the same titles.
And there are a few habeas corpus related items stacked up in the to-read list:
  • I'm interested in a couple of law review articles focused on federal habeas corpus, starting with "Habeas Corpus and the Innocent," and a related item titled, "Beyond a Reasonable Disagreement: Judging Habeas Corpus." The latter article analyzes the high bar to relief in federal habeas claims, which makes me interested to see somebody rigorously analyze, compare and contrast the federal case law and Texas habeas standards, which are more flexible statutorily and (slightly) more generous regarding actual innocence. Most innocence cases I've known much about here in Texas found relief through state habeas writs, which is why I also want to read this item on the decline of state-level habeas over the last 40 years in Georgia.
  • Grits has wanted to learn more about writs of amparo, a Mexican-originated post-conviction writ comparable to but different from habeas corpus. Though this item is a few years old, the author discusses its use in the Phillipines "as a remedy to address cases of extrajudicial killings and enforced disappearances."
  • Abraham Lincoln represented a slave owner in a habeas case before he was president. Despite the hagiographic abstract (one hopes, but somehow doubts, it's justified - as a southerner, I know about folks who want to liberate their favorite historical figures from their historical moment) I want to know more, or at least comb the footnotes.
Finally, I was sent an unsolicited review copy of "Caught: The Prison State and the Lockdown of American Politics." Don't know the author, but I may give it a try.

Let me know what else you think merits inclusion on my summer reading list, or what criminal justice material you've been reading lately.