Hodgepodge of stuff that interested me

Just a few odds and ends, including several from close to home:

• Read former offender Doug Smith, who now works for the Texas Criminal Justice Coalition, writing on his personal blog about racial disparities in incarceration rates. See an interview with Doug here.
• Check out the web page for a Prisoners Family conference in Dallas next May.
• See a new report from the Vera Institute on policing and mental health and overview coverage from the Texas Tribune.
• Here's a suggestion for how to prosecute abusive prosecutors. 
• Mark Bennett's series on attorneys who phoned in clemency for a death-row client achieved appropriate levels of scorn. See here, here, and here.
• A quick roundup of some of the good work from Grits' new contributing writers: Sandra Guerra Thompson had a couple of blog posts recently at Brandon Garrett's Forensics Forum and was quoted in this story in the Atlantic about the Waco biker shootout. Eva Ruth Moravec had two items on her personal blog last month on topics which may interest Grits readers. Michele Deitch was quoted in this story in the International Business Times on private prisons and a Dallas News story on jail suicides. Rebecca Bernhardt was quoted in a Dallas Observer article, "Presumed innocent but locked up: Dallas County's bail system punishes the poor." Lastly, Grits has been re-reading Jennifer Laurin's law review article from this spring titled, "Gideon by the Numbers: The Emergence of Evidence-Based Practice in Indigent Defense." So should you.
• Finally, thanks to Grits donors, I just ordered this book which one hopes will bolster and supplement the blog's coverage of police tech. I mention it only to let donors know the sort of thing (besides subscriptions) your blog donations go for. If you care to support this blog financially, use the Paypal buttons in the righthand column.

Alinskyite police unions have too much power

Check out this CATO Institute podcast featuring the Texas Public Policy Foundation's Derek Cohen opining on "The Power of Police Unions." Police unions push for "creating privileged class" when it comes to misconduct and lawbreaking, suggested TPPF's deputy director. Speaking of myriad union-inspired protections afforded to officers during misconduct investigations, Cohen observed, "They don't want to be treated as a suspect, even if the activity is a crime."

The podcast also featured a rare public mention of the police-union playbook written by Combined Law Enforcement Associations of Texas (CLEAT) mugwump Ron DeLord, their executive director John Burpo, and several associates, "Police Union Power, Politics and Confrontation in the 21st Century," which is essentially a book-length homage to Saul Alinsky draped in the rhetoric of law enforcement. (Title of Chapter 3: "Saul Alinsky: Still the Man with the Plan.") I've always wondered how Alinskyite unionists could remain so tight with the likes of Rick Perry, Greg Abbott, and Dan Patrick, and clearly TPPF's Cohen wonders the same thing.

Listen to the whole podcast; good stuff, Derek!

See also from TPPF:

• Report recommends police reform mental health policies
• Getting criminal justice right
• How solitary confinement makes our streets less safe
• Republicans and Democrats can agree on criminal justice reform

Rethinking use of force: De-escalation

It's called different things – "de-escalation," "tactical disengagement," or "preservation of life" – but the message is the same: police departments across the country are retraining officers on the appropriate use of force.

Texas' basic peace officer course was last revised in 2014 and will be overhauled sooner than later. Currently, DPD deputy chief Jeff Cotner is leading a TCLE committee undertaking a yearlong review of the 643-hour course, flack Gretchen Grisby said. Your correspondent emailed Cotner to inquire as to whether de-escalation tactics are being considered in that review but didn't immediately hear back.

An August 2015 PERF report recommends the "overhaul of police training, policy, supervision and culture on use of force." While many high-profile shootings may have been legally justified, the report said, "there were missed opportunities" to calm things down before shots were fired. Instead of training officers on what they can legally do, PERF suggests officers receive training on what they should do. 

PERF surveyed 281 police agencies, which spent about 58 hours training on firearms, 49 hours on defensive tactics and eight hours on de-escalation and crisis intervention. Traditionally, officers are taught to use deadly force when it's justified, not necessarily to slow things down. Critics say the tactics are time-consuming when time is particularly of the essence.

Still, police in Dallas, New York City, Kansas City, Seattle and Los Angeles have recently added training on the subject. Excessive force complaints against DPD officers are on track to be the lowest this year in 20 years, a drop Chief David Brown attributes to de-escalation training.

Will Texas join them? Ranjana Natarajan, director of the Civil Rights Clinic at UT's law school, hopes so.

"Police departments still have a ways to go in terms of training officers to use only the amount of force necessary and not use force at all when it's not necessary," she said. "We have to go on improving use of force." 

Ed. note: Eva Ruth Moravec, the latest addition to Grits' mighty cadre of contributing writers, covered crime, courts and government for the San Antonio Express-News for six years, where she repeatedly impressed Grits with the quality and professionalism of her work.  She covered the 2015 Texas legislative session for the Associated Press. Her freelance writing has appeared in The Daily Beast, The Washington Post, and other outlets. She is currently attending grad school at UT Austin studying data-based journalism. Eva's a super-talented young gun who Grits feels blessed to add to the roster, which has grown damn impressive over the last couple of months, don't you think?

Houston’s Forensic Lab: From National Disgrace to National Model

After many years of bad press, people nationwide had heard of the disastrous condition of the Houston Police Department Crime Laboratory, and similar stories emerged about labs around the country. The need for improvement became clear. However, comprehending the causes of dysfunctional labs, and more importantly, the path toward improving forensic labs remains elusive.

So, Grits has asked me to announce the publication of my book, Cops in Lab Coats: Curbing Wrongful Convictions through Independent Forensic Laboratories, published this year by Carolina Academic Press. The book addresses the national problems plaguing forensic science, holding up the Houston Police Department Crime Laboratory as a prime example. It details how shoddy forensic science contributed to the wrongful conviction of George Rodriguez who served 17 years in prison before being exonerated. The book then delves into the most critical areas of national concern in forensic science including cognitive bias in lab testing, underfunding of labs, proficiency testing, accreditation, forensic fraud, and the basic reliability of various forensic disciplines, among other issues. A press release about the book is found here. This month West Virginia University law professor Valena Beety announced on the Forensics Forum blog (announcement found here) that she will be publishing a book review on Cops in Lab Coats in the Ohio State Journal of Criminal Law (book review is here).

The book does not just trash the HPD lab, however. It also tells the tale of a lab transformed. It details the city’s project to remove the lab from the organizational control of HPD and make it an independent lab. Making police labs independent of law enforcement was recommended by the National Academy of Sciences in their comprehensive report of forensic science (here). In April of 2014, the HPD Crime Lab ceased to exist, and the Houston Forensic Science Center took its place. In the process of making the lab independent, city leaders also invested in the lab, hiring leaders with national, and even international, reputations and providing support for improvements across the entire lab, leading to internationally-recognized accreditation for the lab which was announced in September of 2014. The elimination of its massive sexual assault kit backlog in 2013 is yet another way the lab has made huge strides of late, as reported by Grits here.

This month the Houston Forensic Science Center caused a national buzz in the forensic science community by announcing the adoption of blind systemic and proficiency testing in its toxicology section. The Cops in Lab Coats book details the importance of having proper quality controls in forensic testing, one of which is a rigorous system for checking an analyst’s proficiency and making sure the whole assembly line of work proceeds properly. While forensic lab representatives around the country have debated whether blind proficiency testing was even feasible, the Houston lab simply moved ahead and did it. I posted an announcement last week about the new blind proficiency testing here. This is only one of the ways the Houston lab is distinguishing itself these days, further buttressing the argument for independence and adequate funding in forensic science.

Ed. note: This is the inaugural post from Prof. Sandra Guerra Thompson, the latest of Grits phalanx of outstanding new contributing writers who brings with her years of academic experience focusing on many of the topics this blog covers. She was on the original Timothy Cole Panel on Wrongful Convictions, has published the new book described in this post on forensic error, and is the director of the Criminal Justice Institute at the University of Houston Law School. I'm excited she's agreed to write here and help class up the joint. Welcome aboard, Sandy!

DPS racial profiling analysis 'misleading,' say experts

At last week's House County Affairs hearing, five academics issued an analysis accusing the Texas Department of Public Safety of "misleading" data analysis in its annual racial profiling reports.

Reported the Austin Statesman, "According to an analysis of DPS annual reports between 2003 and 2014 conducted by a team of racial profiling experts, the DPS consistently searches black drivers at higher rates than white drivers, who in turn are more likely to be released with only warnings than are minority motorists."

Basically, when DPS pulls drivers over, white folks are slightly more likely to get warnings, black folks are much more likely to get searched, and data on Latinos is probably invalid because DPS miscategorizes them.

See the full analysis, which, the Statesman summarized, "recommended ditching any comparison to population numbers and looking at what happens to drivers after they are stopped to calculate search, citation and arrest rates."

For the record, that's the approach taken a decade ago by UT-Austin economist and statistician Dwight Steward and Molly Totman of the Texas Criminal Justice Coalition (see here and here), whose study found disparities among discretionary searches at stops made by most Texas law enforcement agencies. (N.b., your correspondent is listed as an editor on both reports.)

The reason for comparing after-stop data is that, from a mathematical standpoint, there's a clearly identifiable denominator to use as a baseline - the demographics of drivers stopped - whereas statewide population data tells very little about the stop demographics in any one location, particularly in the non-urban areas DPS generally patrols.

The analysis prepared for the House hearing was particularly strongly worded: “DPS has consistently misinterpreted statistics showing the racial and ethnic breakdowns of the number of Texas drivers who have been subject to traffic stops in a manner that is highly misleading.”

Perhaps this DPS kerfuffle will result in improving data collection on traffic stops to make it easier to analyze those after-stop issues where the data can more effectively measure the use of discretion (who gets a warning, who gets asked for consent to search). “DPS Director Steve McCraw said that if lawmakers prefer that his agency changes the way it analyzes traffic stops, 'then we’re on board, especially if there’s an indication that it’s more accurate,'”  though he said he wasn't sure that's the case.

Well, Colonel, you may rest assured. From Grits' perspective, the central critique being made isn't remotely controversial. Once you look at the data sources closely, it'd be obvious to a C student in a high-school algebra class. So DPS shouldn't have any problem changing the data elements gathered to make those reports more probative when the Texas Legislature reconvenes in 2017. Time will tell.

Dead in Jail: A Texas Story

When Sandra Bland died this summer in the Waller County Jail, generating international outrage at her unnecessary arrest and the failures of jailers to monitor properly for suicide, the main thing that surprised Grits was that the media and public paid attention, for once. After all, if you watch the local press, folks die needlessly all the time in Texas jails. For example, just recently I've noticed these headlines:

• Inmate dies in West Texas jail
• Inmate dies in Central Texas jail, Texas Rangers investigating
• Man dies days after hanging self in Travis County jail

And then there's this case in Waco where three jailers at a privately run county facility have been charged with evidence tampering after they changed records to make it appear they'd conducted suicide checks which had never been performed.  Reported the Waco Tribune-Herald (Nov. 13):

Three correctional officers at the Jack Harwell Detention Center were arrested Thursday after allegedly changing documents to make it appear they conducted headcounts following the investigation of a suicide that occurred in the jail.

Michael Crittenden, 24; Milton Walker, 33; and Christopher Simpson, 24, were each arrested on a charge of tampering with government documents, legal documents filed in the case show.

All three are employees of LaSalle Corrections, which operates the Harwell Center.

Surveillance video showed that Crittenden, Walker and Simpson all lied about conducting headcounts in N-Wing in the early morning hours of Nov. 1, according to affidavits filed in the case.

So, if you watch, folks are dying in Texas' jails under questionable circumstances with regularity and for the most part, it seldom makes more than a blip on the local news.

By contrast, on Sunday, the Houston Chronicle published an investigative feature detailing deaths at the states largest county jail (and, for that matter, its largest mental health facility), many of which may be attributed to inadequate health care:

The Department of Justice targeted inadequate medical care at the jail in a 2009 report, finding that poor care and failures by jail medical staff to treat chronic conditions, including diabetes, tuberculosis and mental illness, had been factors in 20 deaths.

Six years later, a Houston Chronicle investigation has found that serious issues remain related to inmate care. Despite reforms in staffing and procedures that have improved medical care in key areas, the Justice Department continues to focus on shortfalls in mental health treatment and on jailers' use of force against disruptive prisoners, according to John Odam, general counsel for the Harris County attorney.

Moreover:

Records show at least 75 inmates have died in jail custody since the Justice Department report, about three-quarters of whom were awaiting adjudication. The number of deaths decreased about 11 percent during [former Sheriff Adrian] Garcia's administration compared to the last five years under Garcia's predecessor, Tommy Thomas.

Most of the deaths since 2009 were attributed to natural causes. Ten died of hepatitis B or C. Ten were suicides. Eight had HIV or AIDS. Five died from the deadly "superbug" staph infection MRSA. Three were ruled homicides.

The Chronicle identified at least 19 cases in which inmates died of illnesses that were either treatable or preventable, or in which delays in care, or staff misconduct, could have played a role in their deaths.

Also:

Over the past nine months, the Chronicle also reviewed more than 1,000 disciplinary reports provided by the Sheriff's Office and found 35 failures to complete cell checks, sometimes for inmates in solitary confinement. Additionally, jailers were disciplined more than 120 times for misconduct involving abuse of authority or misuse of force since 2009, including 13 instances in which jailers failed to seek medical attention for inmates.

Tuberculosis, in particular, is a chronic problem:

"For sure I wouldn't want to be in that jail, because I have major concerns about how they are doing TB skin tests," said professor Edward A. Graviss, director of the molecular tuberculosis laboratory at the Methodist Hospital Research Institute. "It's like being in a Third World country; you have to assume everyone is infected with TB. I would screen them a little bit differently, but again, it's your tax dollars at work. Do you screen them faster, or do you put fewer people in jail?"

Deaths at smaller jails may be treated as isolated incidents, though that's really a misnomer when the same things happen at jail after state-regulated jail. But in enormous Harris County, the high volume makes patterns more easily identifiable.

The Chronicle reported that, in January, the Texas Senate Criminal Justice Committee will take a deeper dive into some of these issues in an interim hearing. So these topics will get their turn in the sun next year, and likely at the 85th Legislature in 2017.

RELATED: Dozens of inmates die in Texas jails each year.

Organizing Inside: Prison Justice League building prisoner base for litigation, advocacy

Erica Gammill, Prison Justice League

Recently, Grits reconnected with Erica Gammill, a long-time Texas criminal-justice reformer who's doing some interesting work organizing prisoners inside Texas state prisons. She's now Director of the Prison Justice League, a membership organization whose 1,000+ members are all incarcerated Texas prisoners. That number would be pretty good for some free-world organizations; for an all-prisoner group, it's downright impressive.

A lot of the Prison Justice League's organizing work and litigation activity has centered around the Estelle Unit, where they're engaged in several lawsuits (and about which they produced this report last year on excessive force at the unit). But they have members at nearly all of Texas' 109 prison units. Grits found the whole project fascinating, so I asked Erica to come tell me, and you, a little more about the group, what they're doing, and what it's like trying to organize prisoners. You can listen to the interview here:

Or, find a transcript of our conversation below the jump.

NIJ on 'Sentinel Event Reviews'

Grits' new contributing writer Jennifer Laurin recently informed readers about "sentinel event" research, which aims to discover the source of system errors, in the context of Texas' Timothy Cole Exoneration Review Commission. So I was pleased to learn from The Crime Report that earlier this month, "the [National Institute of Justice] Sentinel Event Initiative Team released Paving the Way: Lessons Learned in Sentinel Event Reviews, a report on the lessons learned by three pioneering 'beta sites.'" The document focuses not on the policy lessons learned in those jurisdictions but the structures and processes they engaged in to analyze them. See an earlier NIJ report on sentinel review.

Several prominent people have praised Prof. Laurin's earlier post to me, incidentally; it's gotten a lot of folks thinking, so I wanted to at least put the NIJ links in front of readers. The next meeting of Texas exoneration commission is on December 10.

See prior, related Grits posts:

• Exoneration Review Commission To-Do List 2: Consider the Sentinel Event Literature
• Systems Failure
• Exoneration Review Commission To-Do List 1: Broaden the Conversation

Secret police personnel files thwart justice

The other day, Grits described the quandary faced by prosecutors when police departments operating under Texas' civil service code withhold evidence of misconduct that the state is obligated to turn over as impeachment material. This morning I ran across a June 25 editorial from the Beaumont Enterprise describing additional problems with secret disciplinary files. It opened:

At a time when the use of force by police officers is under greater scrutiny than ever, the family of Stanley Leger remains trapped in a frustrating dilemma: It doesn't know if it has grounds to sue the city of Beaumont for his death last June ... because the city is withholding much of the evidence that could shed light on the deadly confrontation. That potential evidence includes, incredibly, a video camera taken from Leger's own house on the night of the shooting.

Cases like this reveal a gap in the state's Public Information Law that should be closed.

Police departments currently do not have to disclose investigatory work if the officers involved in a dispute weren't disciplined or charged with a criminal offense. That includes, by the way, a letter of reprimand, an action that is regarded as discipline in any other personnel context.

Part of the reasoning behind this portion of the law is sound. It is designed to protect officers when invalid complaints are filed against them. Yet the law almost gives police departments an incentive not to discipline officers so that the details of controversial cases can remain locked up. 

Between concealing misconduct for which officers or the department may be civilly liable and thwarting prosecutor's obligation to turn over mitigation evidence to the defense, the secret police personnel files in civil service cities are thwarting justice on multiple fronts.

As Grits wrote earlier, the legislative fix is easy: "Just eliminate (f) and (g) in Local Government Code 143.089 to open those records to the same extent as at county sheriffs and hundreds of other Texas law enforcement agencies." The political calculus for achieving that, by contrast, has been more difficult, but that may be changing, too.

Forensic dentists bite back, limiting media outrage as an innocence reform, and other stories

Here are a few items which merit Grits readers attention, even if your correspondent has no time to dwell on them:

New Hires
Shakira Pumphrey, former staffer on criminal justice issues for Texas House Speaker Joe Straus, has taken a position as Policy Director of the Texas Criminal Justice Coalition. Meanwhile, Empower Texas has jumped into the criminal justice arena, hiring Lawrence B. Jones III to rein in overcriminalization and limit asset forfeiture. Congratulations to both!

Forensic sciences taken down a peg
News first broken on this blog that DNA mixture evidence involved subjective interpretation by technicians using non-standard methodologies and often dubious probability calculations has completed the circle begun with the publication of the 2009 National Academy of Sciences report, "Strengthening Forensic Science: A Path Forward." That document called into question the scientific basis for most forensic evidence but gave DNA a pass. Now we know that much of forensics in recent decades has been "pseudoscience," as the Boston Review this week put it. And DNA mixture evidence, as described recently by a Boston University quarterly, "has never been about achieving certainty. It’s about partial matches, probabilities, big-time math, and a healthy dose of judgment calls by forensic scientists." Except that's not how it was portrayed in court. Together, those two articles provide a good, quick, backgrounder on the nascent crisis, really crises, undermining the credibility, if not yet the status, of traditional forensic science.

Forensic dentists bite back
At a Forensic Science Commission committee meeting in Dallas on Monday, forensic dentists tried to counter evidence with emotional appeals and pictures of dead children. Sounds like commissioners weren't biting.

Will post-pick-a-pal grand jury view officer shooting differently?
Parents of a teenager killed by an off-duty police officer want the case the case re-presented to the grand jury now that the pick-a-pal system has been abolished.

Media, outrage, and 'vigilante justice'
The Dallas News asked its readers what they'd do to prevent wrongful convictions. One raised an issue which isn't discussed as much as it should be: "public outrage fueled by emotion and often biased media, not to mention the mental stress of public officials, law enforcement and those connected to that sector of society ... can factor in to what appears in cases like this to seem like vigilante justice." Glad someone said it; glad they printed it. That's a common denominator in a large proportion of false convictions which result in exonerations.

The Dissenters
Here's an interesting piece on the politics of judicial dissents.

Cry me a river: PDs grouse about federal consent decrees
The Washington Post and PBS Frontline examined major DOJ interventions at police departments in a story which finds our old pal Vanita Gupta called to account for agency actions taken years before she assumed control of the Civil Rights Division. C'est la vie. That's the job you signed up for, babe! I could nitpick a lot with this story. They complain about costs of DOJ intervention but how do you quantify the costs of a corrupt or excessively violent police department? Are we really going to say New Orleans would have been better off if the feds let them stew in their own problems? We heard a lot of similar complaints back in the day when Texas prisons reported to federal monitors under Ruiz vs. Estelle. But in truth, those reforms are why Texas' prisons never became the overcrowded hellholes one saw, for example, in California before federal courts ordered them to cut the prison population. The reality is, departments typically don't reach the point of requiring DOJ intervention until they're wallowing in a full-blown crisis they clearly can't manage on their own. DOJ is looking to make examples of the worst departments, not those which are merely bad or poor. So while I'm sure it's true departments under consent decrees must endure some excessive bureaucracy and waste during the remediation period, it's hard for me to feel too sorry for them.

Epilogue to "The Guy With the Knife": Jon Buice was granted parole. Again.

In a timely epilogue to the screening last week of “The Guy With the Knife” at the LBJ School of Public Affairs, news comes today that the subject of the film, Jon Buice, was just granted parole after 24 years in prison. Buice was convicted of murder in the high-profile case involving banker Paul Broussard in Houston. The 1991 crime involved an apparent gay-bashing by a group of 10 youth from The Woodlands, and mobilized the Houston gay community to advocate for equal rights and for investigation and prosecution of this crime.

While on the surface, the case against the 17-year old Buice seemed cut-and-dry, and the outrage about the gay-bashing seemed fully justified, a closer analysis of the case revealed that the realities of the crime and its aftermath were far murkier. In fact, some prominent members of Houston’s LGBT community, including Ray Hill (the producer of The Prison Show and the original proponent of the “gay bashing” theory of the case) and Maria Gonzalez (the head of Houston’s LGBT Caucus and a University of Houston professor) came to be among Buice’s biggest supporters. Hill later admitted that he fabricated the notion that this was a hate crime in order to put pressure on law enforcement officials to solve the case. And Gonzalez went from fighting to keep Buice locked up to becoming a staunch advocate for his release.

Two separate deeper dives into the case—one by journalism prof Michael Berryhill and the other by independent filmmaker Alison Armstrong, who spent eight years making her film--raised serious concerns about a number of previously unexplored issues. Buice’s guilt is not in question, but both investigations raise serious doubts that there was any underlying intention to target a gay person and that there was any intent to commit murder; rather, it seems much more likely that it was a fight by teens, intoxicated by drugs and alcohol, that got out of hand. Notably, Buice’s case was resolved with a plea bargain for a 45-year sentence, so many facts never had the opportunity to come out at a trial.

Two of the most damning indicators that this was a gay-bashing withered under closer inspection. For example, the media originally touted the fact that the perpetrators used a wooden board studded with nails to beat the victim, but no such item was ever found in the evidence locker and there was no proof or testimony such a weapon ever existed. Similarly, the victim was supposedly “gutted like a deer" with a huge knife, but the only weapon involved turned out to be a knife with a two-inch blade that was used to stab Broussard. The victim’s especially gory “injury” was in fact the result of his autopsy. Another revelation in the film had to do with the fact that the victim, Paul Broussard, was awake and conversant when EMS arrived on the scene, and that his transportation to the hospital and treatment by a doctor were severely delayed due to fears about possible exposure to AIDS, at a time when that disease had the city in a panic.

Perhaps the most troubling aspect of the case, though, had to do with a development in 2011 when Buice was originally granted parole after numerous set-offs. By all accounts, Buice was deeply repentant, and had been a model prisoner, earning several college degrees and becoming a peer educator at the Wynne Farm. But shortly after the Parole Board announced its parole decision, in the days before Buice was actually released but after there was political pushback to its decision, Buice was accused of having an “inappropriate relationship” with a female prison chaplain.

No evidence was ever produced showing that such an inappropriate relationship existed. And indeed, the only inappropriate behavior was on TDCJ’s part. In an extraordinarily brazen move that would likely have a chilling effect on the chaplaincy program in TDCJ were it better known, TDCJ installed video surveillance equipment in Chaplain Linda Hill’s office, capturing footage of all her private communications with inmates and staff alike during a two-week period.

Despite the fact that the video showed perfectly ordinary encounters between Buice and the chaplain, Buice’s parole decision was rescinded and he was placed in disciplinary segregation for some period of time. And officials at the agency fired Chaplain Linda Hill and slandered her reputation, making her collateral consequence in this campaign to ensure that Buice stayed behind bars. Hill’s personal nightmare has only worsened in the years since her unfair dismissal. Berryhill’s account fills out many more details of this sordid story.

While it is tempting to focus any discussion of the case on these irregularities and injustices, in many ways those case-specific details detract from the larger issues and lessons presented here. Maybe we need to look at this case as a story of what it means for a perpetrator of a violent crime to become rehabilitated, or for a community to forgive a person who has hurt them. Perhaps we ought to ask hard questions about when someone has been punished enough, and what further purpose it could serve to keep someone locked up beyond the time that anyone could reasonably think he is a danger to society. And finally, the case should cause us to ask how the justice system can be so easily manipulated, whether at the investigation, prosecution, or parole stage.

One hopes that this latest parole decision--by a parole panel with full information--is the final chapter in Buice’s case, and that there will be no further twists and turns. And one also hopes that there can be some healing for everyone involved in and hurt by this tragic case: for Paul Broussard’s family; for the gay community in Houston and beyond; for Jon Buice, his family, and supporters; and for Linda Hill, whose own story has scarcely begun to be told.

MORE: Kuff disagrees Buice has served enough time, for reasons he explained here in 2013.

Open up police disciplinary files to honor Michael Morton Act obligations

In the comments to this Grits post on the exoneration of Carlos Flores, Jay Brandon, chief of the Bexar County DA's Conviction Integrity Unit rightly deflected blame from prosecutors in the case. Wrote Brandon:

I am the chief of the conviction integrity unit in the Bexar County DA's office, and I handled this case post-conviction. Police never forwarded this information to the District Attorney's Office until a couple of years after the conviction, when a writ was filed. It was at my suggestion and with my cooperation that the defense subpoenaed the records that showed the disciplinary action. This wasn't a case of prosecutors hiding evidence, it was a case of a properly conducted post-conviction review by the District Attorney's Office. 

Closed police disciplinary files in civil service cities have long been a hobby horse for this blog. But only after passage of the Michael Morton Act, which explicitly demands that impeachment material be handed over, has the issue come clearly into focus among the various stakeholders. The Texas Court of Criminal Appeals' Criminal Justice Integrity Unit identified this issue in the early months after the law took effect.

It makes no sense that these records would be secret at San Antonio PD and public if the same thing has happened to a Bexar County Sheriff's deputy, but that's how state law presently treats law enforcement disciplinary records. Most cities which operate under the civil service code voted to opt in in the '40s and '50s, decades before the Legislature changed the law in 1989 to close civil-service disciplinary files.

Understandably, prosecutors like Mr. Brandon don't want the DA to be blamed because police kept something secret. And police in Texas' 73 or so civil-service cities can claim state law mandates they can't share disciplinary files ... which is true, or at least has been since 1989, when the unions got the law changed. So everybody gets to pass blame to the next guy until we get to the Texas Legislature, which both created the problem and is the branch of government most readily in a position to fix it. (The courts could do it, but that would get messy.)

So yes, even though Grits stands by the headline that the "State hid evidence," in this case that doesn't imply prosecutorial misconduct. But the episode demonstrates that the "state's" responsibility is a shared one. It can't just be on prosecutors or they can't fulfill their duties. Police and ultimately, the Legislature, must do their part or the portion of the law requiring impeachment evidence about officers to be handed over to the defense becomes a dead letter: Prosecutors can't turn over materials they themselves never see.

The Lege should remove this excuse for civil-service departments - which are only a few dozen agencies out of 2,600+ statewide, though they include some of the largest - to thumb their noses at prosecutors and their Michael Morton Act and Brady v. Maryland obligations. Just eliminate (f) and (g) in Local Government Code 143.089 to open those records to the same extent as at county sheriffs and hundreds of other Texas law enforcement agencies. Or perhaps they should just strike 143.089 altogether. Maybe the state doesn't need to regulate what's in a local department's disciplinary files so long as they're open.

Natapoff on innocence and the misdemeanor plea mill

Alexandra Natapoff this week presented a particularly sagacious version of innocence advocacy in the Washington Post (Nov. 11), titled, "The cost of ‘quality of life’ policing: Thousands of young black men coerced to plead guilty to crimes they didn’t commit." The piece confronts, in virtuoso fashion, some of the same topics which the Innocence Project of Texas recently recommended the new Timothy Cole Exoneration Review Commission take on: Particularly the pressure on innocent defendants to plea guilty to small-time offenses because of pretrial detention. Wrote Natapoff:

Once charged, the misdemeanor process then exerts enormous pressure on individuals to plead guilty, especially if they are stuck in jail because they cannot make bail. As a result, many of them end up convicted of crimes they never committed, such as loitering, trespassing, disorderly conduct, or resisting arrest. It can happen to anyone, but because we overpolice young black men in low-income neighborhoods for precisely these types of minor crimes, it’s more likely to happen to them.

That's exactly right. Grits has declared before that I consider Sasha Natapoff a personal intellectual hero, and I don't use the h-word lightly. She's one of those rare thinkers who, whenever she considers a question deeply, the world becomes a better place as a result. Her work on informants revealed a rich vein of deep moral thinking and critical analysis which I predict the criminal-justice reform movement will mine for ideas for the next three decades. Then, her work on misdemeanors once again took a portion of the system that's treated as a relatively obscure backwater and charted a navigable route toward addressing false convictions, arguably, at a deeper and more profound level than one could ever reach exclusively through post-conviction means. As she sees it:

Such wrongful convictions represent the convergence of two of our criminal system’s worst flaws: its racial skew and its rush to convict.  Think of it as Black Lives Matter meets the innocence movement.  Our criminal system is widely criticized for targeting and overpunishing African Americans and communities of color.  But that longstanding criticism has generally focused less on whether minority defendants are actually guilty, and more on the disproportionate targeting and racism built into the system. Conversely, the innocence movement has shaken the criminal justice world by uncovering hundreds of wrongful convictions in very serious cases like rape or murder. But it has not zeroed in on the much larger pool of innocent defendants coerced into pleading guilty to minor crimes every year.

Why do these wrongful convictions remain invisible?  One reason may be the common belief that a petty conviction is no big deal. But minor convictions have major consequences. A misdemeanor conviction can deprive a person of a driver’s license, public housing, student loans, or legal immigration status. Even an arrest record can interfere with job prospects, and most employers say they check criminal records before hiring. True, the typical formal punishment for a misdemeanor is probation or a fine, not incarceration. But many offenders end up in jail anyway for failure to pay fines they cannot afford. In short, the misdemeanor process is probably burdening thousands of innocent African-Americans not only with the stigma and indignity of a wrongful conviction, but a crushing array of collateral consequences.

The structural problem lies with the misdemeanor system itself, the front-line mechanism through which we disproportionately sweep African-Americans up into the criminal system and label them, often inaccurately, as criminals. If we made the effort to expose these wrongful minor convictions, we might also accomplish something even more fundamental: disrupting the mythological link between blackness and criminality. That insidious myth, which dates back to slavery and still infects many aspects of American culture and governance, won’t be eliminated overnight.  But we — and our presidential candidates — can take a step in the right direction by recognizing that many of the young black men we convict of minor crimes and then treat as criminals for the rest of their lives are actually innocent.

Because of overcriminalization, some of the low-level offenses Natapoff discusses are actually felonies in Texas, like possessing less than a gram of a controlled substance, but her points are still well taken.

There are many brands of false convictions besides the case of the rape victim who mistakenly identifies an innocent man as her assailant, even though that's the storyline in a huge number of DNA exonerations to date. More common and insidious, though, may be false convictions for lesser offenses based not so much on honest error as coercion and expedience. Those false convictions the innocence movement has barely considered, much less begun to address.

Jail suicides, traffic stop data, on deck at TX House hearing next week

The Texas House County Affairs Committee is having another Sandra-Bland related hearing next week will also address errors in DPS racial profiling data. Here's the agenda. In particular:

• The Committee will meet to discuss how Texas Department of Public Safety codes race during traffic stops, problems with their current method, and ways to correct coding moving forward. 
• Additionally, Texas Commission on Jail Standards will present the new inmate intake screening form to the Committee and discuss recent jail suicides. 

The Dallas News previewed the jail suicide part. (See also the Texas Tribune.) And Grits' own Jennifer Laurin wrote this about the traffic data.
 
Too much has been made about this new Jail Standards Commission form, IMO. That's a fine, bureaucratic change but it's not the end-all-be-all of jail-suicide prevention; it barely scratches the surface. (Grits' new contributing writer Michele Deitch offered these more probative suggestions to the Senate Criminal Justice Committee in September, arguing for a much more comprehensive approach.)

On the racial profiling data at traffic stops, to me this would be a missed opportunity if all they look at are the codes for Hispanic vs. white. Nobody has revisited the fields on traffic stop data collected under Texas' anti-racial profiling law in 14 years, so this might be an opportunity to revisit the question. Some of the Tier II data fields, like whether contraband was found during a search, really ought to be made mandatory, even for departments with dashcams, who are now exempted.

This may be an opportunity to improve the stop data, which really can't be used to prove racist intentions but which has many other uses for police accountability advocates. What we got back in 2001 was a compromise; requiring more/better data fields could make the information a lot more probative.

Latest Texas exoneration: State hid evidence cop beat suspect while handcuffed, prosecuted victim; FBI says not a one-off

Check out the most recent Texas exoneration from the National Exoneration Registry: Carlos Flores, who allegedly was beaten by San Antonio Police Officer Matthew Belver while handcuffed, then charged with assaulting an officer.

Flores, a legal permanent resident from Mexico with no criminal record, was charged with assault on a public servant. Flores filed a complaint with the San Antonio Police Department accusing Belver of attacking him while he was handcuffed and asserting that he kicked at Belver in self-defense.

Flores said in his complaint that after Belver handcuffed him and placed him in the back of the police car, he told Belver, “I want to kick your ass.” Flores said Belver opened the back door of the police car, yanked him out onto the ground and began beating him while he was still handcuffed. During the tussle, Flores said he kicked Belver in the face.

Belver radioed for assistance, but had managed to put Flores back into the police car by the time other officers arrived.

In May 2011, Flores received a letter from the San Antonio Police Department informing him that after an Internal Affairs Unit investigation, “corrective action” was taken against Belver, but did not specify the nature of the action except to say it would be “noted in his personnel file” and would serve “as a reference in the event there a reoccurrence of this type of action by the officer.

On December 6, 2011, Flores pled no contest to assault on a public servant in Bexar County Criminal District Court and the judge deferred an adjudication of guilt for four years. He was ordered to complete 350 hours of community service and pay $2,300 in restitution to the police department.

In April 2013, the FBI reached out to Flores to interview him because Belver was the subject of a federal investigation into allegations that [he] was beating people while making arrests and conducting improper searches without warrants.

One month later, in May 2013, Flores’s deferred adjudication was revoked because he missed three meetings with his court supervision officer, had only paid $600 in restitution and had not completed his community service. He was sentenced to prison for three years.

In May 2014, Flores was scheduled to be released from prison on parole and discovered that because of his conviction, he was subject to deportation.

In October 2014, Flores filed a state-court petition for a writ of habeas corpus seeking to vacate his conviction on the basis of actual innocence. The petition said that although the FBI investigation had not resulted in any charges against Belver, he had been suspended for 30 days without pay for filing a false report of his arrest of Flores and for failing to take Flores for medical treatment on the day of the arrest.

A hearing was held on the petition and the Bexar County District Attorney’s Office agreed that the information should have been disclosed to Flores prior to his guilty plea. A judge recommended that the writ be granted.

In September 2015, the Texas Court of Criminal Appeals granted the writ and vacated the conviction. “This information was not disclosed to the defense before (Flores) entered his plea, and is consistent with (his) contention that he did not intentionally or knowingly assault the officer,” the appeals court said. “The trial court conducted a habeas hearing, and the parties agree that the information regarding the disciplinary action against the arresting officer should have been, but was not disclosed to the defense in this case.”

In October 2015, the Bexar County District Attorney’s Conviction Integrity Unit filed a motion to dismiss the charge. On October 21, 2015, the motion was granted and Flores was released.

The Court of Criminal Appeals ruled in Flores' favor based on a Brady claim, not actual innocence, even though the evidence prosecutors concealed "is consistent with Applicant's contention that he did not intentionally or knowingly assault the officer."

But that's quite a fact-pattern for an innocence case! One wonders what information SAPD Internal Affairs and the feds had that made them believe the word of the suspect over Officer Belver?

Press pick up on police shooting discrepancies

Nice to see the mainstream media pick up on the work of one of Grits' fabulous new contributing writers, Amanda Woog, whose new Database of Officer Involved Shooting Incidents at the UT Austin Institute for Urban Policy Research and Analysis documented lapses in reporting by the Texas Department of Public Safety and other agencies. Last week, she broke the news on Grits, and the Houston Chronicle followed up Nov. 6 with an item titled, "DPS, other police agencies failing to report officer-involved shootings." Reported John Barned-Smith:

House Bill 1036 requires agencies provide certain details such as the ages, gender and races of officers and suspects involved, as well as whether the suspect was armed, injured or killed. It also requires law enforcement agencies to report incidents where suspects shoot officers. Agencies must report shootings within 30 days, and the AG's office has five days to post reports online.

The creation of the database comes after almost a year of nationwide scrutiny of law enforcement's use of force, following a series of lethal incidents between peace officers and civilians that led to riots and protests in many cities. News organizations also discovered that federal data collection did not count many incidents across the country, spurring some outlets to create their own databases.

Databases maintained by The Washington Post and The Guardian count 13 fatal shootings in Texas by police since September 1 - six in that month alone. Those databases do not count officer-involved shootings which are not fatal.

According to the data from the AG's office - which does - there have been 24 officer-involved shootings that have occurred since September 1 and one incident where an officer was shot.

However, criminal justice watchdogs noticed that just half of September's fatal shootings listed on the Post and Guardian databases appeared in the AG's database.

Three shootings - in Ponder, McKinney and Paris - were not listed. In two of the incidents, police said civilians were killed after firing at law enforcement officers.

The Chron also checked in with John Whitmire for his reaction:

Senate Criminal Justice Committee Chairman John Whitmire said he would be calling DPS to find out why the Paris shooting was not on the list, but also chalked it up to the newness of the law.

"They want to comply," he said. "If there's missing information, it'll get corrected real quick."

Whitmire also said legislators might revisit the legislation if problems about reporting shootings persist.

"There's not piece of legislation that can't be improved," he said. "This is a pretty bold concept. We'll monitor it, and if we need to put some teeth in it, or greater enforcement [mechanisms], we will."

It's gratifying to see others recognize the value of this important work. So congratulations, Amanda! Great job, I'm proud of you.

Perhaps predictably, DPS and McKinney posted their missing reports soon after the press picked up Ms. Woog's blog post.

To be clear, despite the reference in the Chronicle story, the Attorney General doesn't exactly have a "database," at least not yet. They just post scanned pdfs online. Amanda Woog, though, compiled the information into a spreadsheet and cross-referenced it to the national newspaper databases and the AG's death-in-custody database, adding significant value to the minimalist state reporting. Check out a Grits podcast interviewing Ms. Woog about this work and the strengths and limitations of Texas' new reporting regimen.

Bottom line: As soon as Texas required police shootings to be reported, it turned out there were significantly more than we knew about. Ms. Woog's work on her new Database of Officer Involved Shooting Incidents  is the only reason we know about these discrepancies.

Dispatch from the front lines of bipartisanship: Comments on the Koch Institute's big crimjust conference

The Charles Koch Institute's Advancing Justice summit was a remarkable event by any measure, and I'd wager the hosts and most of the participants considered it a success. Its goals were simultaneously grand and well-defined: To re-brand criminal justice reform as a conservative issue, or at least as an issue where conservatives and liberals can agree, and to build relationships in the movement across the ideological divide. (See the agenda.)

Given the breadth and scope of opinion leaders there - honestly it was like old home week, I hanged out with people I haven't seen in a decade, from all branches of the criminal-justice reform movement - they clearly succeeded in their goals. The invitation-only event - originally planned for 200 people - ballooned to include 550 souls from 300 different groups nationwide, including a who's who of reformers likely recognizable to many Grits readers. Of the ones I knew and met, these were all serious folks; not many dilettantes or hangers on in that crowd. (I particularly enjoyed sitting next to Doug Berman from the Sentencing Law and Policy blog at dinner one night; we've been reading each others' stuff for more than a decade and never met face to face.)

While the Koch brothers remain best known for financing right-wing candidates, their interest in criminal justice appears to be genuine.The event in New Orleans was a truly a bipartisan (or perhaps more accurately, a transpartisan) affair. I saw a couple of instances where people found themselves chatting up folks so ideologically different from themselves they'd seem puzzled and confused, even more so when, on the issues we were there to discuss, they were met with enthusiastic agreement based on ideological reasoning diametrically opposed to their own. (Such scenes recalled for Grits Dan Kahan's discussions about ambiguity of meaning as an antidote to differences in cultural cognition.)

Conservatives seemed giddy when liberals lapped up their small-government rhetoric on criminal justice that never works on the environment. And liberals listened, moon-eyed, while some extremely religious people spoke of atonement, redemption, and the biblical mandate to minister to prisoners. There were also skeptics in both directions, but the amount of open ideological feuding at the event was remarkably minimal. As somebody who's sort of walked in both worlds for some time, much of the content wasn't new to me, though some of it was certainly useful. But more useful were the networking and cross-pollination opportunities for left-right advocates, many of whom would not have ever otherwise met. That's the sort of thing that can have an impact well beyond presentations and plenaries.

Speaking of which, your correspondent was invited to participate in a panel Thursday evening at dinner on Criminal Justice and the Press along with Conor Friedersdorf of The Atlantic and Reihan Salam of National Review, both of whom seemed like fine gentlemen, from the little we got to visit. Friedersdorf is more of a reporter's reporter; Salam more of a pundit. Both were smart as a whip. We followed Asa Hutchison, the former DEA chief, now governor of Arkansas, who has signed on to the Texas Public Policy Foundation's Right on Crime principles. (So they had Grits punching above his weight, in other words.)

As luck would have it, Vikrant Reddy, our dapper moderator, threw me a softball on the first question, asking about a subject I'd written about on Grits related to journalistic form and its impact on policy content as it pertains to the anecdotal lead, or what the NY Times managing editor for standards dubbed, "the stranger in the story." Since I was harking to journalistic practices dating to when Salam and Friedersdorf were probably in grade school, it was perhaps a bit unfair to ask them to respond, but both did, gamely, with Salam generously agreeing with my pet theory.

We also had a funny conversation about one's conception of audience. Salam and Friedersdorf both gave fairly predictable descriptions of their readership and its expectations, but as they spoke I realized none of that really applies to Grits. For the most part, I write this for my own peculiar purposes, whether as a substitute for a paper clip file, a 21st century version of an open-sourced constituent letter, or just a place to write up notes from a meeting or event I attended. I don't mind if other people read it, and I find there's added value from open-sourcing the information rather than keeping it to myself. But in a utilitarian sense, it's not for the audience in the same way a commercial publication is for its audience. It's for me.

A friend later said he found my comments jarring, but they seemed pretty self-evident to me: It's not like my readers, or anybody, are paying me for this. Regardless, I've got strong opinions about journalism, regular readers know, so I could have talked all night on these subjects.

I hesitate to label any conference "important." But on this rare occasion, this one might have been - not for the content, but for helping change the terms of debate among conservatives about the criminal-justice reform movement and vice versa. A number of advocates I spoke to left the event viewing criminal justice politics through a different frame than when they arrived, thinking more seriously than before about the prospects of working across the aisle. And after this, it will be harder for the press to reflexively conflate "conservative" and "tough on crime" positions.

Congrats to the Koch Institute on a successful and really interesting event. And thanks for inviting me.

MORE: Video of most of the conference events are linked here; scroll down a screen or two to the schedule on the left-hand side of the page for the list. They're almost all up as of Tuesday afternoon. AND MORE: Here's a link to the panel on which I participated. Rewatching parts of it, Mr. Salam was especially good, I thought, while your correspondent, this once again proves, was blessed with a face made for radio and a voice made for print. Be sure to check out the swanky set behind us, it was really something.

Garbage In, Garbage Out: KXAN Reports DPS Racial Profiling Data Confounded by False Reports of "White" Stops

Reporting by KXAN provides another glimpse into the limits of regulation through transparency, i.e. the forcing of data reporting.  Texas has a commendable law requiring law enforcement agencies to collect "information relating to motor vehicle stops in which a citation is issued and to arrests made as a result of those stops," including the "race or ethnicity of the individual detained" and "whether the . . . officer knew" the race or ethnicity before the stop.  (Criminal Procedure Code Article 2.132(a)(6).)  Reporting, in turn, allows researchers (like co-blogger Amanda Woog) and advocates to hold agencies' feet to the fire when the data reveals racially skewed enforcement.

In theory.  But KXAN's review of reports generated by DPS troopers revealed that minority drivers are frequently documented as "white."  The article includes photographs and interviews with some of these folks, bearing out the claim that while there might be instances of racial ambiguity, at least some number of these errors are not so easily explained.  And as my University of Texas colleague Ranjana Natarajan observed in the article, accidental misattribution is certainly possible, but large numbers of misattribution point toward a more systemic or intentional dynamic at work.  Interestingly, a DPS official response to the KXAN report blames the available fields in the computer information systems used to document the stops - in particular, the absence of "Hispanic" as an option for describing the "race" of an individual.  IMHO it's a little lame that DPS is only now realizing the implications of that limitation.  But it's worth observing that this is actually a problem with law enforcement information systems nationwide, and that many researchers believe that this simple issue - the widespread absence of a Hispanic "race" box leading to attribution as "white" - creates a widespread systemic skew in our empirical portrait of Hispanics and the criminal justice system.

To make an entirely duh point, if people of color are routinely being documented as white, the regulatory dynamic breaks down.  Garbage in, garbage out.  Glad to see from the linked article that the legislature, including sponsors of the racial profiling legislation, are pressing DPS.  If it's a computer systems problem, surely the legislature can kick some money DPS's way to add a new check box and train their officers to use it.  Although I don't view body cameras as a panacea, here's a place where recording of stops would make feasible supervisory spot-checking of the field officers' reporting.

Exoneration Review Commission To-Do List Part 2: Consider the Sentinel Event Literature

In my second post boldly offering my views for a path forward to members of the newly activated Timothy Cole Exoneration Review Commission, I'll expand on the brief suggestion made in my first post, that the TCERC take a "systems approach" to its work.

It's worth starting off with a brief caveat about my motivations here.  I'm not a member or an adviser to the TCERC, and so I've no particular standing to weigh in, nor reason to think that my idiosyncratic views will have traction in the entity's deliberations.  Part of the impetus to comment on the work that the TCERC is beginning, however, is that its efforts connect to a broader national trend toward establishing criminal justice review commissions, as well as a broader conversation among practitioners and academics about the optimal design of those commissions.  (The New Yorker recently featured an illuminating account of the trend and related conversation.)   So the TCERC is poised to do work of relevance to those national actors, some of whom I hope will take notice of and follow the TCERC's work . . . even if the TCERC itself takes little interest in my armchair commentary on its mission.

In those national debates, the concept of the Sentinel Event has been a critical organizing principle for (re)envisioning ex-post review of criminal justice error.  The term has been used in other high-risk industries - aeronautics and medical care, for example - to describe a negative outcome that signals weaknesses in systems or processes, and that if properly understood can be utilized to diagnose and prevent future failures.  The imperative of moving from the negative outcome to systemic understanding of its causes is the key priority animating Sentinel Event Review ("SER") in these industries.  That is to say, the manner in which an organization responds to error should be tailored to maximize understanding of how that error emerged from the structural, organizational contexts in which it arose.  For proponents of Sentinel Event Review, that premise generates some key principles:

• Review processes must involve all stakeholders;
• Review processes should be forward-looking;
• Review processes should not blaming devices;
• Review processes should instantiate a shared culture of accountability and disclosure, and should enjoy confidentiality to facilitate that goal.

In recent years, enterprising folks have begun to consider whether the concept of SER could successfully migrate to the criminal justice system - arguably another high-risk industry where error is almost always a product of complex organizational and systemic processes. (Note, the applicability is far broader than wrongful conviction review.  Police-involved shootings, the commission of a crime following a discretionary release decision, or a near-miss such as a Brady error discovered mid-trial, are all potential "sentinel events.")  The allure, in the eyes of proponents, is in SER's ability to move past the limitations of an adversary frame to error identification and correction - limitations created by legal doctrine, and political entrenchment and mistrust, among other factors.

The National Institute of Justice has devoted multiple years of study, and, recently, a healthy chunk of grant money, to the question.  And a number of real, live criminal justice organizations have operationalized the approach.  For example, the New York Justice Task Force, New York's own criminal justice review commission, recently adopted a resolution urging that organizational-level and inter-organizational level Sentinel Event Review processes be adopted.  In a somewhat different context, Milwaukee, Wisconsin (led by District Attorney and Sentinel Event Review proponent John Chisolm) has adopted Sentinel Event Review principles in its Homicide Review Commission.

There are criticisms, to be sure.  For some, the principle of removing blame from the review process will be a bug rather than a feature of the approach.  Sentinel Event Review is not, at bottom, an "accountability" process - except insofar as accountability is posited as mutually shared.  For others, the notion that a process could be truly collaborative, that the adversarialism of the justice system and its political underpinnings could be siphoned from review, is fantastical.  And some might be concerned that confidentiality of review processes is too high a price to pay for the speculative benefit of fostering stakeholder disclosure and collaboration.

Interestingly, however, the statutory design of the TCERC suggests that at least some principles of SER are embedded, as it were, in its DNA.  (This might not be accidental.  The sponsor of the legislation, Senator Rodney Ellis, is a long-time member of the National Innocence Project's Board of Directors, and representatives from the IP have been hip to and connected with Sentinel Event work for some time now.)  House Bill 48, which created the TCERC, is future-oriented (review is aimed at generating recommendations, per Sec. 8(a)), and requires membership from an array of criminal justice stakeholders and contemplates wide consultation from non-member segments of the criminal justice community (See Sec. 8(b)).  Indeed, the statute permits the TCERC to obtain information from any state entity, an authorization of appropriate breadth in systems-based review since it is not far-fetched to imagine that, inter alia, Family and Protective Services, mental health agencies, and other non-criminal-justice social services entities would bring relevant information to the table in a conversation about how a wrongful conviction occurred.  Most critically from the standpoint of SER design, the working papers of the TCERC are confidential (Sec. 8(d)), a major exemption from Texas's relatively broad open records provisions, and an important one if the premises of maximum disclosure and minimum blame are built into the Commission's mission.

So I would suggest that Sentinel Event Review is possible in Texas.  It might even have been intended by the legislature.  But perhaps the more overarching point is that an entity that has been established to generate an empirically informed understanding of best (or better) criminal justice practices should conduct its own work in a manner that is informed by an emerging understanding of best (or better) criminal justice review practices.  In recent years, Sentinel Event Review has emerged as a leading candidate for that status.  At a minimum, it should be on the radar screen of TCERC members, and the TCERC should be on the radar screen of SER aficionados.

DPS Fails to Report Shooting of Unarmed Man: Month One of the New Officer-Involved Shooting Reporting Requirement

Now that we are outside of the 30-day reporting + 5-day posting window for police-involved shootings in the month of September, I took a look at the Guardian and Washington Post databases of police-involved deaths to see if Texas law enforcement agencies have been complying with the new law.

Unfortunately, the compliance rate for deaths* in September is only 50%: three of the six deaths by police-involved shooting captured by the Washington Post and the Guardian have not been posted to the Attorney General’s website.  On September 27, a man in Ponder was shot and killed after police responded to gunshots in the neighborhood. The man allegedly fired at a police officer. This incident is not listed on the Attorney General’s website.

On September 23, a man in McKinney was shot and killed after police responded to a call about a woman and child being held against their will. The man allegedly fired at officers. This incident is not listed on the Attorney General’s website.

On September 21, a man in Paris was shot and killed after a DPS highway trooper approached the man, who was sitting on a highway barrier, and an altercation allegedly ensued. This incident is not listed on the Attorney General’s website.

The September 21 incident is particularly troublesome because it appears to be the one September death from a police-involved shooting in Texas where the person killed was unarmed. And the officer involved was a DPS officer; while I can see how some small agencies without in-house lawyers could be unaware of the new reporting requirement (although, as any law enforcement officer will tell you, ignorance of the law is no excuse), DPS has an Office of General Counsel, which should know of the new law.

While bumps are expected when a new law comes into effect, the early compliance issues point to underlying problems that I have previously identified: no person or office is charged with enforcement, and there are no penalties for noncompliance. Further, the Attorney General’s office has not issued guidance on the new law, which may account for some of the compliance issues and confusion around how to report and where to post. Even if the AG is not interested in enforcing the law (as it has indicated with respect to a similar law), revised forms and guidance could improve roll-out.

It’s great that Texas is ahead of the game in requiring this reporting, but if the law is not enforced, or at least monitored, incomplete data will undermine the value of the information. I hope these problems simply reflect hiccups in the early stages of implementation and that the Attorney General will take a more active role in ensuring the spirit of the law is preserved.

* The Washington Post and Guardian websites only track deaths and I do not know of a database tracking injuries from police shootings to which the Attorney General reports can be compared.

Systems failure

This suggestion for a "Systems Approach to Error Reduction in Criminal Justice" to which Grits' new co-blogger Jennifer Laurin linked in her inaugural post reminds me of how the NYPD seeks to prevent terrorist attacks, using failures (thankfully, mainly in table top exercises) as a roadmap for crafting preventive measures. Terrorist attacks on US soil, happily, are even more rare than false convictions, by far. But taking a systems approach toward preventing unlikely but terrible outcomes makes loads of sense and is supported by the cases Texas' Exoneration Commission will review.

When dozens of drug defendants are exonerated for the same reason - they pled guilty rather than wait for months in jail for tests to come back from the crime lab - that's a systems problem, not just a problem in one individual's case.

IMO we should consider a false conviction to be as serious as a plane crash and confronting failures with a systems review, as they famously do with downed aircraft, conveys the gravity of the problem. Yes, the plane crash affects more people, at least on the surface. But for every false conviction identified and for which successful redress has been obtained, there are dozens if not hundreds of other innocent people convicted who can never be identified because there's no exculpatory DNA, Brady violation found, or other smoking gun to definitively prove their innocence.

Jennifer described that larger category thusly to me in a private email: "the real concern is that 90% of cases really aren't 'about' the evidence per se. (As the guilty pleas in the complete absence of corroborative evidence demonstrate.) They're about resources, leverage, negotiation, and enough evidence to get over the probable cause hurdle. And so that's where, as you say, bail reform meets innocence work, sentencing reform meets innocence work, etc."

That's exactly right, and it sums up the challenge faced by those who would extend innocence-related critiques and reforms beyond what Laurin called the "canonical," traditional issue areas like eyewitness ID and access to DNA testing.

Whether Texas' Exoneration Commission adopts such an approach remains to be seen, but it's arguably the best way to get to the root of these questions.

Feds recalling military gear for cops, and other stories

Here are a few items which may interest Grits readers while my attentions are focused elsewhere:

• Good news: According to a complaint in the press from Sheriff Gary Painter in Midland, "As part of President Obama’s executive order issued earlier this year, local law enforcement agencies with certain types of military-style gear obtained through the federal 1033 program - which granted surplus military gear to local agencies - are being required to return the equipment." Further, "The recall order issued from Washington pertains to equipment such as tracked armored vehicles, bayonets, grenade launchers, large caliber weapons and ammunition, according to the written order. Law enforcement agencies will be required to provide additional training and certification when applying for this specialized equipment in the future."
• A federal judge has intervened to halt the state prosecution of an Austin police officer for shooting an unarmed black man. The judge ruled the officer had federal immunity from working with a federal task force. MORE: See related coverage from the Washington Post, which reported that "59 officers ... were charged over the past decade for fatally shooting someone while on duty. In criminal court, 11 of the officers were convicted and served time. But when 46 families of those shot and killed by police sought justice in the civil system, 32 received monetary awards,"
• See a positive profile from Texas Lawyer of Forensic Science Commission general counsel Lynn Garcia, who really has made a huge impact this year. When an editor friend at the Dallas News asked what figures from the criminal-justice arena they should consider for Texan of the Year, Lynn was on my short list.
• From AllGov.com, "Debtors prison charges leveled at Austin, Texas."
• One in 14 American kids and one in nine black children have an incarcerated parent.
• Grits thought this was an especially effective presentation of "How post-conviction procedure rules inhibit truth finding."

GRITS Conference Brings Attention to Bail, Fee Reform

This weekend, your correspondent had the pleasure of attending the first-ever Getting Radical in the South Conference (GRITS – no affiliation with this blog) at the University of Texas School of Law.  The conference gathered lawyers and activists from all over the country, but predominantly the South, to discuss radical lawyering and organizing.  While the conference covered subjects ranging from immigration to policing to voting rights, criminal justice (or “criminal injustice,” as some participants preferred) emerged as the major topic of the weekend.  Particularly relevant to recent developments in Texas was a discussion on bail and fee reform.

The keynote speaker was Alec Karakatsanis, cofounder of the nonprofit Equal Justice Under the Law out of Washington, D.C.  He and his team of lawyers have been filing legal challenges across the United States to local jurisdictions’ practices of jailing people solely because they are too poor to pay bail or fees.  Equal Justice has been very successful in arguing that the Equal Protection and Due Process clauses forbid courts from jailing indigent defendants who – for no other reason than being indigent – cannot come up with the money to stay out of jail.  So far, Equal Justice has amassed wins in Alabama, Missouri, Mississippi, Louisiana and Tennessee, and has also filed lawsuits in Georgia and most recently, California.

Between Mr. Karakatsanis’s group making its way westward and through the South, the Texas Fair Defense Project’s having filed a lawsuit last week in Austin challenging the city’s practice of jailing people for being unable to pay fines and fees, and the ubiquitous use of bail schedules in Texas, it is only a matter of time before Texas’s practices are also subject to legal scrutiny.  And political scrutiny should be forthcoming as well: the Texas Judicial Council’s Criminal Justice Committee is currently working on a study on pretrial confinement in Texas, which will hopefully be released ahead of the next legislative session.  Pending litigation and new policy research may create the perfect storm for meaningful bail and fee reform in 2017.

The GRITS conference was a great success, and my only wish is that the conference had started back when I was at UT Law 2009-2012.  Major kudos go to the students and organizations that made it happen.

Grits' note (the blogger, not the conference!): Amanda Woog, the youngest of this blog's fabulous new contributors, was first introduced to Grits readers in this podcast about her research on police shootings. Grits first met Ms. Woog when she showed up as a standout policy attorney for the House Criminal Jurisprudence Committee this past session who, as near as I can tell, impressed everyone who met her. Before that, she clerked for Judge Cheryl Johnson at the Court of Criminal Appeals and was an intern at the Office of Capital Writs during law school, so now we have someone else on the blog who can talk writs! It's going to be fun having new voices in the mix. Thank you, Amanda! I couldn't be more pleased to have you writing here.