Thursday, March 31, 2016

Houston ISD employs more cops than counselors, social workers

Houston ISD is one of four out of the nation's ten largest school districts analyzed in this article which employs more police officers and security personnel than counselors. HISD has 1.16 cops per 1,000 students, compared to .78 counselors per 1,000 students. Even when you add in the number of social workers to the counselor total, security staff outnumber them.

"In Houston, that means there’s only one counselor for every 1,288 students." In fact, "Not one of the top 10 districts, where counselors may be particularly beneficial for low-income students, meets the American School Counselor Association’s recommendation of one counselor for every 250 students — most weren’t even close."

Wednesday, March 30, 2016

Striking prisoners, investigating police shootings, the terrible truth about Texas incarceration rates, and other stories

Here are several odds and ends this morning that merit readers' attention:

Texas prisoner strike?
"Inspired by a growing wave of prison strikes in Alabama, Georgia, and California," Texas prisoners reportedly will engage in work stoppages next week as part of a strike action being organized by the International Workers of the World, according to a press release Grits received today. See here and here for details. One would expect units with striking prisoners to end up on lockdown, but who knows what will happen? Their stated demands include:
1. Meaningful application of work time credits
2. Repeal $100 medical copay
3. Right to an attorney on habeas claims
4. Independent oversight of TDCJ
5. Humane living conditions (including air conditioning, better medical care, etc.)
Oversight and prosecutorial misconduct
See a new report from the national Innocence Project on oversight and prosecutorial misconduct. Here's initial coverage from the Houston Chronicle and more from ProPublica.

Keeping up with Anthony Graves
Speaking of prosecutorial misconduct and those who've fought against it, see a good profile of exoneree Anthony Graves and his various activities through his personal foundation now that he's a free man.. 

Investigating police-shootings investigations in Houston 
The Houston Press published a feature diving deep into Houston PD disciplinary processes and the investigation that takes place when a police officer shoots someone. Grits also recently ran across a similarly themed investigative story out of New Mexico looking at police shooting protocols.

Doubling down on hype
The governor may send state troopers in Dallas to respond to media hype a reported crime wave. I thought we had to send all the troopers to the border because of the non-existent crime wave down there?

Video exonerated defendant, but no consequences for false accusers
See coverage from an episode in Caldwell County where sheriff's deputies allegedly beat a guy up and accused him of assaulting an officer, only to find home security video contradicted all their claims.
Reported Ars Technica, which has links to many of the key documents, "The video (which contains no audio) has not led to the officers being disciplined or charged for allegedly falsifying police reports."

Tasers and police interrogations
A new study out of Drexel University is titled "Taser shock disrupts brain function, has implications for police interrogations."

Senators consider mental health and jails
The Texas Senate Criminal Justice Committee today has a hearing 1t 1:30 p.m. on an interim charge directing them to "evaluate the current guidelines and practices in county and municipal jails relating to the health, welfare, and safety of those in custody. Review law enforcement and correctional officer training, with emphasis on mental health and de-escalation. Study the effectiveness of existing oversight mechanisms to enforce jail standards; making recommendations for policies and procedures if needed. Examine the current mental health and substance use treatment services and medical resources offered in county, municipal, and state correctional facilities." You can watch it here. Mark Haslett has a preview of the hearing on KETR-public radio.

Bail reform roundup
Several items related to bail reform deserve attention:
Truly, Texas' incarceration rate greater than Russia, Iran
As I've said many times, Grits really can't stand the Politifact model - their only valid results IMO are "True" and "Pants on Fire." All the gradations in between are matters of (often uninformed) opinion. Take this one, for example. Austin state rep candidate Gina Hinojosa said in a mailer that “Texas has a higher incarceration rate than Russia or Iran. It’s time to reverse course.” Politifact sought out sources that confirmed the rates used for both countries, and Texas' rate, but added "mostly" because the data sources weren't exactly apples to apples (as though data across prison systems ever is!). This is an absurd analysis. She could call ten experts on the topic and they'd all give the same answer. That statement was simply "True"; no source the reporter found contradicted it in the least.

Implanting false memories of crimes committed?
According to a tech blog I follow, "Scientists are discovering how to erase and implant memories." Indeed, "A recent study had a 70% success rate of implanting false memories into their subject’s minds to lead them to believe that they had committed a crime." See the study here. Whether memories can be implanted has been debated since some of the earliest research on eyewitness identification.

Quality control essential for crime labs, boring for news reporters

The Houston Forensic Science Center, formerly the Houston PD crime lab, recently changed  procedures in light of an inspector general investigation which found insufficient attention to and reporting of evidence contamination errors in the lab, reported the Houston Chronicle (March 25):
Houston's crime lab requested the inquiry last month after an anonymous complaint was filed with the Texas Forensic Science Commission regarding the repeated misuse of new lab equipment, leading to tainted blood specimens.

OIG inspectors said lab staff took too long to report the initial error, which occurred last May, but did not find malfeasance.

"OIG sustains the concern that none of the individuals in the operational chain of command on notice of the error notified the quality director of the May 2015 error, resulting in an improper reporting delay from May to November," Inspector General Robin Curtis wrote. "Because of the totality of the circumstances including the large amount of contemporaneous discussion about the May 2015 error within the operational chain, OIG does not find any malfeasance in the error."

In addition to suggesting policy revisions, the OIG urged the Houston Forensic Science Center to address error review in regularly scheduled staff meetings, retrain staff, ensure contractors understand their quality control responsibilities and self-disclose errors to the state's forensic science commission.

The city's crime lab said in a press release Friday that it began an internal review last October and has since updated its procedures. It also noted that the end result was not affected in any of the three incidents, as analysts were able to test a second, uncontaminated vial of blood.
Routine review of errors and their causes, then developing mechanisms to prevent them - basically quality control/assurance - is a pivotal but un-sexy aspect to forensic-science reform. When they do their jobs well, QA staff are unsung reform heroes. Every forensic lab will eventually make an error. The big questions arise regarding how forthrightly they respond and whether systems are in place to learn from errors and improve processes as a result. This is boring but essential work. Effective QA requires a certain culture of humility among both lab workers and management, who must acknowledge and learn from errors when becoming defensive may be the more natural reaction. When done correctly, the outside world will never notice. Where effective QA doesn't happen, errors repeat and lab directors find their failings making it into the daily newspaper headlines, which in my observation is the last place most of them want to be.

Tuesday, March 29, 2016

Prospects bleak for clemency in 21st century

Barack Obama's record in clemency is better than it was when this blog, with Peter Ruckman's Pardon Power, launched a web campaign asking the president to pardon the writer O. Henry in order to highlight Obama's dereliction on clemency matters. (The president quoted O. Henry, whose own federal pardon application was once turned down, while pardoning two turkeys, which at the time rivaled the number of people who had experienced his mercy.) Since then, he's done a few things. At this late stage of his presidency, Ruckman reported yesterday:
President Obama has granted 70 pardons (4 conditional) and 187 commutations of sentence (6 conditional). The figure for pardons is lowest for any full term president since the administration of John Adams (1797 to 1801). The figure for commutations is better than most recent presidents, who were both notoriously neglectful of the pardon power and received far fewer applications (see second chart, below). 150 of President Obama's 257 total grants (or 58 percent) have been granted in a single month alone, December.
Recently, the Pardon Attorney at USDOJ issued a letter of resignation. Reported USA Today, "Her resignation letter suggests a broken and bureaucratic process at odds with President Obama's own aim to exercise his pardon power "more aggressively" in the final months of his presidency." Moreover, reported the paper, her office is swamped with insufficient resources to do its job:
Since the administration announced the initiative in 2014, applications for clemency have exploded. There are now 10,073 clemency cases pending — three times as many as in 2013. And that doesn't count thousands more cases seeking free legal help through the Clemency Project, an outside consortium set up to assist with the initiative.

When he announced the initiative in April 2014, then-Deputy Attorney General Jim Cole said the department had "pledged to provide the necessary resources to fulfill this goal expeditiously." While the administration didn't set a target for the number of cases, former Attorney General Eric Holder told the Washington Post last year that he had hoped that as many as 10,000 people could have their sentences reduced under the program. So far, Obama has granted less than 2% of those.
That said, here in Texas, Gov. Greg Abbott's stinginess on clemency compares unfavorably even with the president's parsimonious record, as well as Rick Perry's before him. For the most part, whether presidents or governors, the executive branch in 21st century American democracy remains mostly immune, seemingly, even to valid, individual pleas for mercy, much less calls to use clemency to directly confront the ills of mass incarceration.

Hyping crime: the politics of false trends

Every generation of reporters, editors, and politicians, I suppose, must learn for themselves not to draw conclusions from short-term crime statistics. There are too many variables that go into them and too much lag time in reporting to draw valid conclusions from short-term crime spikes or, for that matter, reductions in crime. Especially regarding serious violent crimes, like murders, the fact that you're dealing with very small numbers can skew short-term analyses and suggest false trends that may not reflect what's really happening. Lately, this sort of news coverage seems to be all the rage, to the point where even our Texas outlets have picked up on the tactic.

The most recent strain of infatuation with this rookie journalistic error, from Grits' observation, began a few years ago when federal courts ordered California's prison system to decarcerate because of overcrowding. The papers soon filled with anecdotes of violent crimes that cops and prosecutors attributed to the policy and suggestions that the federal order was responsible for a crime spike. But when the annualized data came out, that trend never materialized. The following year, CA voters eliminated the state's three-strikes law and a similar hue and cry about increased crime ensued. But the annualized data didn't bear that out, either. They're doing the same thing now over Prop 47, which prioritized treatment and changed certain drug crimes to misdemeanors.

The trick seems to be to engage in demagoguery for as long as possible during the period before official numbers are reported, which is a rather long delay. (For example, 2015 UCR data hasn't been reported for Texas yet, so we can for now only talk about data through 2014.) Then, when the numbers come out, if murders go up, critics get to say "I told you so." If they go down, the same folks give law enforcement credit while leaving the public with a false impression that crime is worse than it really is. This brand of coverage helps explain why the public thinks crime is rising, even when it's falling.

The tactic seemed to nationalize and metastasize after Heather MacDonald began touting her theory of a "Ferguson Effect," which attributed a crime spike predicted based on six months of data to police officers intentionally refusing to do their jobs, effectively as a sort of perverse form of civil disobedience over alleged disrespect they'd received from the Black Lives Matter protests, etc.. Grits would have thought it insulting to claim police officers would intentionally tolerate crime because some protester dinged their ego - it seems like an admission of low integrity to acknowledge that mentality - but somehow MacDonald spun that as a pro-cop view and continues to defend it.

Here's the truth: Nobody can prove she's wrong, but she can't prove she's right. Even if crime does increase when the 2015 numbers come out, what does that mean, and to what should we attribute it? Crime has declined for a couple of decades, but at some point it will reach a floor. When it does, it will rise again. At that point, what sound like scary large increases may not mean much from a statistical perspective. For example, here are Texas' murder rates since 1990 according to annual Uniform Crime Reports the state sends to the feds:

Texas murder rate per 100,000 residents

1990  14.1
1991  15.3
1992  12.7
1993  11.9
1994  11.0
1995  9.0
1996  7.7
1997  6.8
1998  6.8
1999  6.1
2000  5.9
2001  6.2
2002  6.0
2003  6.4
2004  6.0
2005  6.1
2006  5.9
2007  5.9
2008  5.6
2009  5.4
2010  4.9
2011  4.2
2012  4.4
2013 4.4
2014 4.4

Sources: FBI and DPS.

Texas' murder rate declined by 71 percent from 1991 to 2014. (If you want to go back further, our murder rate since 1960 maxed out at 16.9 per 100,000 residents in 1980.)

If Texas' 2015 murder rate jumps to 5.4 per 100,000 people, that would be a 22.7 percent year-over-year increase. Newspaper headlines could and would breathlessly tout a "double digit" increase in statewide murder rates. But the rate would still be 65 percent lower than in 1991.

So when the Dallas Morning News reports an "alarming violent crime increase" because of a few months of data, that's more a tried and true tactic for selling newspapers than an honest assessment of risks to the public. Even sillier is the local union's comment that, “Violent crime is up and murder is up and it’s all because of bad police management.” If violent crime is up, the reasons are far more complex than that. And unless it goes up and stays up, it's not necessarily something about which government or the press should overreact.

Monday, March 28, 2016

HPD crime lab Harris County District Attorney sat on exonerating evidence for five years

CORRECTION APPENDED BELOW. Ed. note: The exoneration registry account of this case included a key error misattributing withheld evidence to the HPD crime lab when really it was the DA's office that did not reveal exculpatory evidence to the defense. Grits regrets repeating the error but am glad doing so led to discovering the real story.

Original post. In the most recent Texas case listed on the National Exoneration Registry this morning, we learn of Johnny Adams, a Houstonian falsely convicted of drug possession. And we learn that, at least in 2009, the Houston PD crime lab Harris County DA wasn't particularly concerned about making sure prosecutors defense counsel knew about defendant-friendly results from lab tests. Here's how the registry described Mr. Adams' story:
On November 14, 2008, police in Houston, Texas arrested 52-year-old Johnny Adams after they confiscated a substance that field-tested positive for cocaine.

On January 9, 2009, Adams, who had a lengthy record of prior convictions for drug possession, pled guilty in Harris County Criminal District Court to a charge of possession of a controlled substance. He was sentenced to 90 days in the Harris County Jail.

Less than a month later, on February 5, 2009, the Houston Police crime laboratory tested the substance and no controlled substance was found. However, the prosecution was not informed of the result until July 2014.
This is a bit more egregious than your typical Harris County drug exoneration, which remain remarkable even if they're now coming out with such numbing frequency. HPD's crime lab (which has since been spun off as an independent agency) had evidence of a false conviction that could have liberated Mr. Adams from confinement, but for some reason failed to inform the prosecution but the DA's office didn't hand it over to the defense. So Adams served two months in the Harris County Jail after authorities discovered evidence which should have caused his case to have been thrown out and let him go free. And he Adams wasn't informed of the results until five years later.

The DA's office finally was told of acknowledged the drug-test results in mid-2014, at which time:
the Harris County District Attorney’s Conviction Integrity Unit informed Adams and his defense attorney and joined in a state petition for a writ of habeas corpus to vacate the conviction. A trial judge recommended that the writ be granted and in February 2016, the Texas Court of Criminal Appeals granted the writ and vacated the conviction.

On March 11, 2016, the charge against Adams was dismissed.
CORRECTION: The Harris County DA's office emailed to correct this account. It turns out, the HPD crime lab did promptly pass along its drug-test results, but the DA's office did not reveal that information either to defense counsel or the court until 2014. HCDAO conviction integrity unit chief Inger Chandler emailed this morning to say:
Your post on the Johnny Adams case was brought to my attention yesterday morning.  Wanted to bring to your attention that the error in this case was not HPD’s.  The Brady notice that we filed with the court in 2014 (attached), contained a letter from HPD to the HCDAO notifying us of the “no controlled substance” lab result.  That letter was dated 2/6/2009.  I have confirmed that it was emailed to our office on that day.  It got missed somewhere on our end.

Bottom line… HPD didn’t drop the ball here.  This error is an example of what caused DA Devon Anderson to revamp our whole system for handling cases with variance lab reports (ie, no controlled substance, different weight, different drug).  To put it simply, our former processes had too many people involved… too many opportunities for things to get lost or jammed up in the pipeline, from initial notice to the filing of the writ.  In mid-2014, DA Anderson brought a retired prosecutor on board to help us with the project, and she went through every single lab notice she could find and checked to make sure the convictions had been remedied.  Some, we learned, had not. We have a list of cases that we are working through with the assistance of the Harris County Public Defender’s Office and other appointed counsel.

I’ve clarified with issue with the National Registry of Exonerations.

I would appreciate it if you would do the same on your blog.
So, there you go. The DA's office failed to disclose the information from February 2009 to July 2014. The HPD crime lab reported it in a timely manner.

MORE: Chandler followed up with another email to correct an additional tidbit from the exoneration registry account:
Mr. Adams was actually released from the Harris County Jail on 1/9/2009.  Though he received a 90-day sentence on that day, Harris County Jail time carries 2-for-1 credit, and Adams had 57 days of credit when he entered his plea.  I double-checked in our system, and he was, in fact, released on the 9th.  Doesn’t excuse the error, but it does at least show that he wasn’t held after the exonerating lab results.
I've edited the post above to jibe with Chandler's updated accounts. I appreciate her reaching out to clarify what actually happened in the case.

FINAL THOUGHTS: Bottom line, this case was more typical of the rest of the Harris County drug exonerations than I'd first understood - more a product of deviant prosecutorial priorities and culture, not the failure of the lab to convey exculpatory findings. From the perspective of a front-line prosecutor, for whom every "deal" on a case is a tick in the "win" column, this one resulted in a felony conviction and a sentence served. There was no incentive but righteousness for taking a win off the board, and in 2009 there wasn't anybody doing the job Inger Chandler is doing now, making sure this stuff gets fixed.

To me, these Harris County drug exonerations further highlight how high bail and pretrial detention combine to coerce pleas from the guilty and innocent alike, and this case is a perfect example. By any measure, Adams' punishment of 57 days in pretrial detention was served not as a consequence for bad behavior, but as an inducement for him to enter a plea bargain. Mr. Adams got out of jail the day he pleaded guilty. If he'd been released pretrial instead of held in jail, don't you think he might have been more likely to wait a month on his plea to see the results of a crime-lab test?

Sunday, March 27, 2016

Looking forward, dreaming big: Bodycams are TASER's loss leader

Taser International, the middling military and police contractor most famous for its eponymous product, has big dreams: to supply equipment and services to every single police officer in America and abroad. Beyond just stun-gun tech, they plan to hold and manage data from body cameras and charge cities for the service. Austin gave Taser a boost toward that goal last week with the announcement that Taser will supply APD officers with body cameras.

The company's 10-K report for 2015 filed with the Securities and Exchange Commission this month lays out their vision in some detail.

According to the company, "approximately one out of every fifty eligible law enforcement officers carries a TASER CEW [a Taser-brand stun gun]." However, they continued, "Our goal is to have our CEWs be standard issue equipment for all domestic and international law agencies."

Meanwhile, the company's fastest growing business is body cameras and camera data services. "We are building out our Axon platform with body cameras and video management, which are driving rapid growth and market penetration today. However, the real opportunity is to leverage this connected platform to enable a broad suite of mobile, wearable, and data management capabilities to bring modern information technology capabilities to every law enforcement officer." According to the financials, Taser's sales grew 12% last year, but their body camera and data segment grew by 88%.

In a footnote, the company frankly admits its data-business model: sell cameras cheap as a loss-leader and make their money long-term on the data contracts. (For background, Axon is Taser's body camera brand and is their back-end site managing data from the cameras.) As they explained, in the footnote:, Axon cameras and related accessories are sometimes sold separately, but in most instances are sold together. In these instances, customers typically purchase and pay for the equipment and one year of in advance. Additional years of service are generally billed annually over a specified service term, which has typically ranged from one to five years. Axon equipment represents a deliverable that is provided to the customer at the time of sale, while services are provided over the specified term of the contract. ... At times the Company subsidizes the cost of Axon devices provided to customers to secure long-term service contracts.
The Legislature authorized $10 million for matching grants to purchase body cameras, but I don't know if anybody considered whether or not that money is supposed to pay for back-end data storage as well. The state Department of Information resources is developing a service departments can use for a fee of around $50 per officer per month, their COO told a legislative committee last week.

At least for a while, Taser may be able to get around such problems where police agencies use asset forfeiture money to buy stun guns or body cameras. But critics from both sides of the aisle may be mucking up that revenue source, too. Taser admits in its 10-K that, "Changes in civil forfeiture laws may affect our customers’ ability to purchase our products."

Meanwhile, Grits thoroughly enjoyed TASER's remarkably long list of "forward looking statements," each of which is "qualified by important factors that could cause our actual results to differ materially from those reflected by the forward-looking statements." In other words, some or all of Taser's claims on the following topics about Tasers, body cams and data services may not be true -- the jury is still out:
  • the benefits of our CEW [stun guns] products compared to other lethal and less-lethal alternatives;
  • the benefits of our Axon products compared to our competitors';
  • our ability to maintain secure and consistent customer data access and storage, including the use of third party data storage providers, and the impact of a loss of customer data, a breach of security or an extended outage;
  • that the complaint filed by Digital Ally [related to unfair trade practices including bribing public officials] is frivolous;
  • that Axon Fleet will ship during fiscal 2016
So, just some small stuff they aren't quite as sure about as they would like! There's a lot more.

Finally, going through their 10-K, Grits noticed a few angles some intrepid reporter or activist may find useful as a followup. If you research them, let me know:

If anyone wanted to research TASER's foreign sales, the company "must obtain export licenses from the Department of Commerce for all shipments to foreign countries other than Canada." They mentioned that "Most of our requests for export licenses have been granted," but it'd be particularly interesting to examine the license requests that were denied.

There was also a reference to risks related to possible changes in regulations that probably few reformers have ever considered: "We rely on the opinions of the Bureau of Alcohol, Tobacco and Firearms, including the determination that a device that has projectiles propelled by the release of compressed gas in place of the expanding gases from ignited gunpowder, are not classified as firearms. Changes in statutes, regulations, and interpretation outside of our control may result in our products being classified or reclassified as firearms." The City of Austin recently, it should be noted, adopted "a new policy that would treat Taser stun guns as a more serious weapon capable of inflicting harm and subject its use by city police officers to greater scrutiny each time the guns are fired," so how to categorize Taser weapons remains an active, open issue on which departments differ.

In addition, the company's "consumer products are regulated by the U.S. Consumer Product Safety Commission." And their 10-K mentioned that "our private citizen market could be substantially reduced if consumers are required to obtain a registration to own a firearm prior to purchasing our products."

For more background on Taser and its eight board-of-directors members, which includes a former Governor of Montana and a young tech entrepreneur who founded, see the company's most recent proxy statement.

RELATEDTaser's business model on bodycams. ALSO: The federal 4th Circuit Court of Appeals recently found that police officers "could lose on-the-job immunity from civil lawsuits if they use a Taser to shock suspects in the face of nonviolent resistance," reported the Baltimore Sun (3/26). The suit alleges that "police are too often turning to Tasers before exhausting other options." WHILE I HAVE YOU: From today's McAllen Monitor: "Edinburg man says police used Taser on genitals." Ouch!

Small-county incarceration rates rose faster than cities

There's a nice article in The Atlantic about rising incarceration rates in small counties:
In very small counties, nearly 1,100 out of 100,000 people of color aged 15-64 are behind bars in a local jail on a given day. For NYC and LA, that rate is significantly lower, at just 280. For a national perspective, the jail incarceration rate of people of color is 502 out of 100,000 aged 15-64, which is less than half the rate in very small counties, and significantly higher than the total national jail incarceration rate of 341.

This disproportionate growth is further evidence that the era of mass incarceration hasn’t delivered on public safety. It has, however, taken a fiscal toll as well as damaged individuals, families, and whole communities. Jails are under the jurisdiction of local stakeholders, and their day-to-day size and operations are not significantly affected by federal or state legislative proposals to reduce prison populations. As we know from looking deeper into the national data, the use of jail incarceration is embedded in the culture and practice of communities nationwide, large and small.
One of the examples offered of small-county jail growth was from Texas:
For example, Gonzales County, Texas—with 20,000 residents between San Antonio and Houston—had 2 people in jail in 1970. But very small counties grew far more. The jail populations in these very small counties grew six-fold from the 1970s to the present—from 9,000 to 62,000—and now hold double the amount of people behind bars as NYC and LA. Gonzales County had 87 people in jail in 2013, for a jail incarceration rate twice the national average.
And small counties are a significant source of growing racial disparity in incarceration rates, according to this analysis. "In some very small counties, the change is dramatic: Custer County, Oklahoma held 11 people of color behind bars in 1990 and 114 in 2013—10 fold growth when the resident people of color population had only doubled."

The Atlantic article was based on this fabulous database of national jail population trends compiled by the Vera Institute. Interested readers should dig around that site, lots of good stuff there.

This is also a good time to remind readers that the Texas Commission on Jail Standards last year put their historical county jail population reports online all the way back to 1992, which is a great boon to everyone researching the topic. (Thanks guys!)

Fifth Circuit finds prosecutor misconduct, issues slap on wrist

The Fifth Circuit Court of Appeals recently vacated an asset forfeiture ruling (see the order) after finding that the prosecutor in the federal case, Mindy Sauter, had concealed the fact that an alleged accomplice was promised a favorable deal in exchange for testimony, reported William R. Stewart at The National Law Review.
Giving credence to the adage that honesty is the best policy, a panel from the Fifth Circuit Court of Appeals in United States v. Dvorin affirmed the district court’s finding that the lead prosecutor “exhibited a reckless disregard for her duties and conducted the proceedings in an irresponsible manner” during a bank fraud prosecution by withholding material evidence concerning the credibility of a key government witness, and also by knowingly using false testimony to obtain a conviction. The panel also found that the government failed to overcome the presumption of prosecutorial vindictiveness because it added an additional forfeiture notice once forced to retry the case as a result of prosecutorial misconduct during the first trial.
The 5th Circuit vacated the forfeiture holding but declined to apply additional sanctions at retrial. Defendant Dworin:
sought dismissal of the indictment with prejudice as a sanction for Sauter’s misconduct, or alternatively precluding [alleged accomplice Chris] Derrington from testifying at all in the second trial. The district court denied these sanctions, and the panel upheld the denial, noting that there was no evidence of bad faith or ill-intent in the record to support imposing such severe sanctions.
No bad faith, even though the court also found Ms. Sauter "permitted [Mr. Derrington] to testify falsely" about not having an agreement with the prosecution! So basically, the prosecution's case won't be hindered, only delayed, by having committed reversible misconduct. Federal prosecutors still get a second bite at the apple. Taking away $91K in forfeiture money their agency had seized amounts to a wrist slap, as sanctions against federal prosecutors go. The Fifth Circuit basically said to the US Attorney, "Yeah, you cheated, but go ahead, it's okay."

It seems likely to this observer that, given the status quo, Ms. Sauter will suffer few if any meaningful consequences from this beyond a little embarrassment and the DOJ losing an amount of forfeiture money that would barely qualify as a rounding error in their budget. But what should happen when prosecutors flaunt the rules?

Let's open it up to the readers: What is the appropriate sanction when courts determine that prosecutors cheated to win? Should their bar license be threatened, their employment be called into question, or perhaps the withheld evidence should be excluded at retrial? Should punishment for a prosecutor's first offense differ from subsequent ones? And who should administer sanctions? Their bosses? (I.e., US Attorneys for the feds, District Attorneys at the local level.) The courts? (And if so, which one[s]?) The state bar? Somebody else?

Are there creative approaches to be had? For example, one could envision a rule or statute mandating a 30-day jail stint whenever a court finds that a prosecutor willfully withheld evidence. Or, should prosecutors retain absolute immunity in cases where they break the rules? There has to be some mechanism to meaningfully punish cheating prosecutors because the ones we supposedly have now don't work well.

RELATED: From Casetext, Coddling Prosecutors.

Saturday, March 26, 2016

DNA overturns rape conviction but doesn't formally 'exonerate'

The Texas Court of Criminal Appeals this week overturned a rape conviction out of Dallas for Darryl Adams after DNA testing from the rape kit failed to match his profile. Testing could have been done a decade ago but was denied by the courts. No press coverage on this one yet, as far as Grits can tell.

Mr. Adams was granted relief under Texas' new junk-science writ but the court did not declare Adams actually innocent, though that's the implication of the failure to match his DNA to the rape-kit evidence. So this is another non-exoneration exoneration, leaving Mr. Adams in limbo when it comes to securing compensation for his wrongful conviction. Best of luck to him.

Prosecutor elections, the limits of reasonable suspicion, and other stories

If only to clear my browser tabs, here are a few odds and ends that may interest Grits readers:

TX prosecutor election outcomes
By TDCAA's calculations, there will be at least 20 new elected prosecutors across Texas by the time the 2016 election season ends. See details here.

Dallas cops still can't ticket for marijuana
Despite urging from the county, which must pay to jail pot smokers arrested by Dallas PD, the Dallas City Council declined to allow its officers to issue citations instead of making arrests for low-level marijuana possession. The vote was 10-5. That sounds like a dandy issue to campaign on in a local election, don't you think? What a waste of officers' time and county jail resources!

Austin extends "ban the box" to private sector
The Austin City Council made it easier for ex-offenders to get a job, requiring larger employers to ban-the-box. I've been grumpy at them lately on non-criminal justice topics, but must give credit where it's due: This was an important and encouraging step. Here's coverage from KUT. Reported the Statesman, "The Austin City Council voted 8-2 Thursday night to pass the “fair chance hiring” ordinance championed by Council Member Greg Casar, which prevents companies from asking applicants to check a box on a job application if they have a criminal history. ... The ordinance applies to employers with at least 15 workers." See Amanda Woog's writeup of the hearing.

Strike the black jurors?
Prosecutor Nathan Wood from Wharton this week accused his boss, the elected DA Ross Kurtz, of advising attorneys in the office to avoid black jurors as a matter of strategy.
The issue emerged during a black woman's trial that began in February with Wood and another prosecutor striking the only three blacks on a jury panel. Defense attorney Mark Racer objected, forcing the prosecutors to give race-neutral explanations for their actions.

"This is just a win-at-all costs mentality that shouldn't be there," Racer said this week. "And clearly one of the prosecutors was uncomfortable with it."
The limits of 'reasonable suspicion'
The Texas Court of Criminal Appeals issued a pro-defense opinion in a case which raised the question "whether an officer has reasonable suspicion to detain a suspect based on observing the suspect walking with another person at 2 a.m. in an area known for narcotics activity and based upon the officer's unsubstantiated belief that the suspect is a 'known criminal.'" In an opinion by Judge Larry Meyers, a unanimous court said that was not enough to justify a detention. Commentary at TDCAA advised that, "Reasonable suspicion is a low threshold, but not quite this low. The Court is typically deferential to the officer on the street, but this officer perhaps could have talked with the suspect awhile longer before detaining him. By doing so, he might have discovered other suspicious facts to support a detention."

License plate readers and roadside debt collection
The Southeast Texas Examiner took a deep dive into the issue of law enforcement's use of license plate readers now that the Lege has okayed roadside collections via credit card.

Pepper spray abuses
A couple of blatant misuses of pepper spray caught Grits' eye recently. In Fort Worth, a police officer sprayed motorcycle club members as a line of bikes passed him on the highway. In Austin, the Peaceful Streets Project caught an officer on video pepper spraying a handcuffed man in a police van; the officer opened the van door, sprayed the guy, then shut it again while the guy writhed around in pain inside. Both those cops should be fired.

Targeting union-dues paycheck deductions
GOP voters in the Republican primary voted by an 83-17 margin to eliminate public employee unions' ability to deduct dues from members' paychecks and Empower Texas is promoting a petition urging the Legislature to do away with the practice. Grits might be more interested in that idea except that the bill they pushed last time gave a pass to dues deductions for local police associations, who arguably are the most powerful labor interest in the state. If this is about principle, apply the principle across the board. Besides, they're mainly doing this to attack Texas House Speaker Joe Straus and it was police unions who came to his ardent defense when the Speaker was attacked during the primary. If they're going to do this, police associations must be included or the proposal comes off as two-faced.

Toward police accountability
Several additional items related to police reform merit readers' attention:
House Speaker Paul Ryan backs criminal-justice reform
U.S. House Speaker Paul Ryan announced this week he'll move federal sentencing reform legislation in the House and explained the reasons behind his own, personal transition from tuff-on-crime maven to reform advocate. For example, "I didn't necessarily know this before, but redemption is a beautiful thing. It's a great thing," he declared. "Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws."

Friday, March 25, 2016

Austin passes Fair Chance Hiring ordinance

Last night, the Austin City Council passed a Fair Chance Hiring ordinance, becoming the first city in the South to require employers to wait until a conditional offer of employment has been made to inquire about an applicant’s criminal history. While similar "Ban the Box" initiatives have gained traction across the country, the Austin ordinance goes further than most fair chance laws in that it applies to private employers, delays the criminal history question until the point of conditional offer, and includes a civil penalty of up to $500.

According to Grassroots Leadership, which helped lead efforts to pass the ordinance, more than one in three Texans has a criminal record, and 2200 people return to the Austin area each year from prison. Even though employment stability is one of the top factors in preventing recidivism, 60-75% of people released from prison cannot find work within a year of their release. And the effects of incarceration disproportionately impact people of color: African Americans make up nearly 35% of people incarcerated in Texas prisons, while they represent only 12.5% of Texas’ overall population. With Austin’s unemployment rate exceptionally low and employers in need of applicants, it also makes sense for Austin to pass measures that would help increase the labor pool.

At last night’s hearing, the City Council heard public testimony from many formerly incarcerated individuals who spoke about the difficulty of obtaining gainful employment, the shame and stigma that comes with having a criminal record, and how their families have been impacted by their incarceration. Susannah Bannon, a Ph.D. student at the University of Texas at Austin, stated that her retired parents should not have to “worry about whether or not their 35-year old daughter who is halfway through her doctoral degree can pay her rent,” and asked if “someone who comes from this much privilege and has this much support … cannot make it in Austin, how can someone who is less fortunate do it?” Jorge Renaud, an organizer with Texas Advocates for Justice, slammed the “privileged few” opposing the ordinance, who he said were trying to persuade the Council “to continue a policy that has resulted in families, communities and entire neighborhoods on the east side and south side of Austin, impoverished and destitute and unable to climb out of poverty.”

Attorney Brian McGiverin, who also testified in support of the ordinance, placed the measure in the context of the Civil Rights Movement. He began his testimony with a quotation from a letter written on behalf of the U.S. Chamber of Commerce in 1963 regarding legislation that would become a piece of the 1964 Civil Rights Act. The excerpt resembled statements that have been made in opposition to the Austin ordinance: “The problem involves so many considerations that any bill comprehensive enough to cover them all would in all probability do more harm than good. The better approach to the problem is a combination of voluntary efforts and increased education to ensure better understanding of the need.” McGiverin argued that the “gameplan for gutting civil rights legislation really hasn’t changed that much in the past 50 years” and urged the Council not to be persuaded by the same “tired” arguments that have been used in the past to try to defeat antidiscrimination laws.

Opponents to the ordinance were mostly from the business community and included the Austin Chamber of Commerce, the Texas Credit Union Association, and the Texas Public Policy Foundation. A representative with the Texas Credit Union Association stated that the ordinance “imposes unnecessary costs and burdens on business and imposes particular risks on financial institutions,” referring to potential conflict with federal laws that prohibit financial institutions from employing people with certain criminal histories. However, Council Member Kitchen pointed out that the ordinance expressly did not apply where state or federal law disqualifies a person with a criminal history from holding certain jobs. Temporary staffing firms also voiced concerns that the ordinance would interfere with their particular business model, where applicants apply to the staffing firm for employment but are ultimately sent to outside employers which have their own hiring requirements. In response to those concerns an amendment was adopted that would allow the firms to conduct background checks either upon conditional offer of outside employment, or upon an applicant’s entry into a hiring pool.

Prior to the vote, Council Member Renteria spoke in support of the measure, and - like many of the advocates who testified in support - invoked his personal experience.  He described his brother’s involvement in the criminal justice system and the effects of his brother's criminal record on work opportunities. His brother, who spent most of his childhood and young adult life incarcerated – first in the Waco State School from age 8 and later in TDCJ until age 32 – is now 68 years old, has never earned more than $10 an hour and has never had health benefits. Council Member Renteria stated that, when his brother was incarcerated, “society at that time really didn’t care about low-income minorities,” and implored his fellow council members to “show our compassion.”

The ordinance was sponsored by Council Member Greg Casar and in the end was opposed by only two Council members. In a moment when communities across the country are looking for ways to improve outcomes for formerly incarcerated people, the ordinance is one of the more progressive efforts we’ve seen and sets an important precedent.

For my part, it was fascinating and inspiring to see a grassroots effort, led by people directly affected by the policy, defeat entrenched and well-funded interests to effect immediate and impactful change. Congratulations to Council Member Greg Casar and the organizers and advocates who have spent the better part of the past year working to get the ordinance passed.

Video from last night’s hearing can be found here.

Thursday, March 24, 2016

More on Pam Freeman indictments

The Houston Press followed up on the Pam Freeman indictment story.

Can Washington D.C. help Texas end mass incarceration?

Inimai Chettiar of the Brennan Center will speak at the LBJ School in Austin today and as fate would have it she just co-wrote an essay in The Hill suggesting ways the federal government could create incentives for decarceration in the states. Though Grits had earlier paired suggestions from the Brennan Center and Prof. John Pfaff (whose name always makes me think he should be from Pflugerville), Chettiar framed their positions as oppositional, IMO somewhat needlessly.

Chettiar and her coauthor, Lauren-Brooke Eisen, want to roll back federal incentives for overincarceration, but Texas has more prisoners than any other state and the biggest item named was never adopted here. Speaking of the 1994 federal crime bill, they wrote:
Perhaps most significantly, the bill authorized $12.5 billion for states that adopted “truth-in-sentencing” laws, which stipulate an offender must serve at least 85 percent of their lengthy sentences. After the bill was enacted, 24 states passed such laws. As one example, New York received more than $216 million, and by 2000, the state had added more than 12,000 prison beds, incarcerating 28 percent more of its citizens than a decade before. The law was a turning point for America’s philosophy and practices of punishment.
FWIW, Texas was not one of the states that adopted that 85% rule. And their other main example wasn't a perfect fit, either, for 2016 Texas:
The Edward Byrne Memorial Justice Assistance Grant Program (JAG) is another example of the federal government’s role in increasing arrests and incarceration. The program provides around $400 million annually to more than 1,000 cities across all 50 states. It is the largest single source of federal criminal justice funds for states and localities.

For years, JAG funding helped incentivize more arrests, prosecutions, and imprisonment in states and cities. When handing out the money, the federal government asked state and local police departments to report numbers of arrests but not changes in crime rates. It tallied the amount of drugs seized, but not whether offenders were sent to drug treatment. If a state wanted money, it had to produce numbers.
Long-time readers of this blog will recall that, for many years Texas spent nearly all its Byrne grant money on regional narcotics task forces, like the one in the infamous Tulia drug stings, which were judged by similar arrest-maximizing metrics to those described above. But after a series of scandals, legislative interventions, an ill-fated DPS takeover of the system, a sustained, five-year advocacy campaign (see a couple of public policy reports I wrote on the topic for ACLU of TX back in the day), and remarkable episodes of defiance, in 2006 Rick Perry defunded dozens of task forces around the state and split the money toward basically two new priorities: drug courts and border security (which was the first government spending presaging the massive $800 million border boondoggle the Lege authorized last session, though that's a story for another day).

I've always wondered if reduced drug possession arrests - at their height the Byrne-funded drug task forces statewide claimed to make 12,000+ drug arrests per year - might have partially contributed to the leveling off of Texas' prison population in the mid-aughts? Some of those arrests would have still been made by those officers' parent agencies (local PDs and Sheriffs contributed officers to the task forces), but I bet there was some non-insignificant front-end decline.

Regardless, while I agree with the Brennan Center about removing federal incentives, Texas' prison population remains quite large without them, so that won't do much here. More interesting to me was their proposal, discussed in the earlier Grits post, to create incentives for states to safely de-incarcerate:
Congress can pass a modern day crime bill that directs federal funds to states that reduce their prison populations, while keeping down crime. (The Brennan Center has proposed such a bill.) Today, $3.8 billion in federal grants run largely on autopilot, on the outdated notion that increasing prison populations brings us wins against crime. The next president can champion such an Act. Even without Congress, the next president has executive authority to redirect much of this money, helping create a major nationwide shift.
Many states did react to money incentives in the way she describes, and many states would surely adjust to the new incentives as well. Maybe even Texas.

In any event, I see nothing mutually exclusive between Chettiar's suggestions and Pfaff's idea, which was that the feds could contribute money to states for purposes of providing an adequate defense. Either would be good, both would be better.

Wednesday, March 23, 2016

Alleged police perjury here and yon: Brian Encina on the dock while Dallas cop on year-long paid vacation

Former state trooper Brian Encina's not guilty plea this week in the aftermath of the Sandra Bland tragedy generated many headlines. But a story out of Dallas by the inestimable Tanya Eiserer at WFAA deserves scrutiny, too, as it's closer to the (unwritten) rule whereas the attention focused on the Bland case has been a remarkable and unexpected exception.

An internal affairs investigation found that DPD Sgt. Stephen Baker gave "false testimony" on the stand in a DWI case in February 2015, but perjury charges were never filed. A judge declared his testimony wasn't credible and ordered a directed verdict of "not guilty." The prosecutor in the case wrote in a memo that Baker was so “focused on not backing down he basically perjured himself on the stand.” Since then, "Baker has been on administrative leave since March 2015, collecting his $83,000 annual salary." That's some punishment!

Eiserer reported that "Shortly after making the ... arrest, Baker was put into a special monitoring program for troubled officers. Despite that troubled disciplinary history, Baker was promoted to sergeant several years ago. That boost in rank was given even though an interview board had unanimously recommended that Baker not be promoted, based on his disciplinary history and work history."

Encina's behavior received international scrutiny, while Baker's flew under the radar. But what happened to Baker is a more typical outcome when perjury allegations arise against police officers: The behavior is too often excused and overlooked by their peers and supervisors, in this case giving him a year's worth of paid vacation when he should have been fired soon after he got off the witness stand. Once prosecutors begin opining to one another that an officer "basically perjured himself," he won't be of much use in proving criminal cases against future defendants going forward.

Tuesday, March 22, 2016

Debtors prison and the Great Texas Warrant Roundup

Following up on criticisms by the Justice Department regarding the use of arrest warrants to enforce payment of fines and fees, CBS News had a story yesterday titled "How you could go to debtor's prison in the U.S.." Here's a notable excerpt:
"These practices are rampant across the country, most recently in Louisiana," Lauren-Brooke Eisen, a senior counsel with the Justice Program at the Brennan Center for Justice at NYU School of Law, said. "Fees and fines emerged as a powerful funding mechanism when state legislatures balked at raising revenue."

An increasing number of states and localities look to close budget gaps through fees and fines accessed through the criminal justice system. The scenario has created a cottage industry of for-profit probation companies like JCS, which oversee payment plans and collect fines and fees on behalf of municipalities.

In 2010, the ACLU found "this troubling trend in five states, and since then an additional three to four states," Choudhury said. "In 2015 alone, the ACLU and its affiliates filed lawsuits in Georgia, Mississippi, Washington and Michigan," she said. "This is a problem that truly spans the country."

"Since the Great Recession we've seen a dramatic rise. What we've seen is hard-pressed state and local governments increasingly relying on fine and fee collection to fill budget gaps," Choudhury said. "There's a conflict of interest when government is collecting money it depends on but is also charged with enforcing fair and impersonal criminal justice. So, courts should not be revenue generators and neither should the police."
The article included this excellent quote from anti-tax maven Grover Norquist offering a cops-as-tax-collectors meme:
The issue has fostered an alliance between civil rights groups and conservative activist Grover Norquist, with the president of Americans for Tax Reform speaking at the same December panel as Lynch.

"When I was a kid," Norquist said, "my parents always said if you have trouble, go to the policeman, he's your friend. I've never heard it said about IRS agents. Yet we've turned at the local level a lot of the police force into tax collectors."
In Texas, the latest manifestation of this practice came in the annual "Great Texas Warrant Roundup" earlier this month, which is timed to tap debtors around the time they may be getting a tax refund. From the ACLU of Texas:
The State’s unreasonable traffic ticket scheme and the devastation it can wreak on low-income Texans receive considerably less attention.

Depending on the jurisdiction, a ticket for failing to signal a lane change—the pretext for Sandra Bland’s tragic traffic stop—will cost you around $66. But the State tacks on $103 in court costs and a host of fees, some bordering on Kafkaesque. Texas will charge you a public defender fee, even though courts refuse to appoint a public defender for traffic ticket cases. If your fine is already too expensive to afford, Texas charges a fee to put you on a payment plan. You’ll even pay an “administrative fee” for the privilege of handing money over to the court. For people who are too poor to pay their tickets, that $66 fine can grow to over $500.

If you can’t afford to keep up with these fees, the State will suspend renewal of your driver’s license (add another $30 for the License Renewal Suspension Fee), and you’ll be unable to register your car, making it illegal for you to drive to the job you need to take care of your kids and pay off your spiraling debt. An expired registration means you’re certain to be pulled over and put back at square one, with new tickets, new fines, new fees, and no hope.

Case in point: Valerie Gonzales, one of the original plaintiffs represented by the Texas Fair Defense Project in a class action lawsuit against the City of Austin. Valerie is a 31-year-old mother of five children with disabilities. She and her family live in poverty. After receiving two traffic tickets nine years ago, not only had Valerie’s tickets multiplied and her fines ballooned into the thousands of dollars, she lost a job after she was unconstitutionally jailed without the benefit of a court-appointed attorney.

When people like Valerie are arrested in the coming warrant roundup, judges across Texas will follow their usual plan of demanding a payment in exchange for liberty. Without asking questions about financial circumstances, judges literally order people to turn over all the money they happen to be holding when they are arrested. “Give me what’s in your pockets” is not a phrase that should be uttered in a courtroom. What’s worse, when the working poor don’t have enough money to hand over, judges send them to jail without a fair hearing or a second thought.

Inmate atttempts suicide same day as TCJS prevention training

The renewed focus on suicide prevention by the Texas Commission on Jail Standards paid off recently in my hometown, reported the Tyler Morning Telegraph ("March 17"):
Staff at Smith County Jail and others across East Texas saw their training put to the test when an inmate at the jail attempted to hang himself on the same day representatives from the Texas Commission on Jail Standards were in town teaching staff about suicide prevention.

The 34-year-old male inmate from Lindale was rushed to the hospital about 7 p.m. Tuesday night and remained in a Tyler hospital Wednesday, where he was upgraded to stable condition, while jail staff continued their two-day training at the jail. 

Smith said an investigation into the incident so far has revealed the man hanged himself using a T-shirt, not with a towel as staff first believed. The man was found by jailers about 7 p.m. Tuesday during a routine check, which are required by the the Texas Commission on Jail Standards to be conducted every 30 minutes, regardless of the inmate's mental state. 

The jail was cited for failing to make a cell check on time for a 24-year-old man who was found hanging in his cell May 16, 2015.

Here's a bit more detail regarding circumstances surrounding the latest incident:
[Sheriff Larry] Smith said the inmate was being held in a separation cell located in the original portion of the jail, because jailers felt he could be a danger to others, Smith said. Medical personnel had seen the inmate at 3 p.m. Tuesday and did not believe him to be suicidal. The inmate had been in the separation cell for about two days. 

Currently, jailers check inmates who are on suicidal watch every 10 minutes, unless they are deemed at immediate risk. Inmates who are actively attempting to harm themselves are placed on constant watch, with a jailer monitoring them at all times. 

“If an inmate claims to be suicidal, they have to do specific things, such as notify the magistrate, their supervisor and medical staff,” TCJS Executive Director Brandon Wood said. “We encourage them to be as proactive as possible.”

Inmates not on suicide watch are allowed to have personal items in cells, such as clothing and hygiene items. 
That last line makes me wonder if inmates deemed suicidal are routinely stripped naked in their cells? If inmates "not on suicide watch are allowed to have personal items ... such as clothing," that implies suicidal ones don't get clothes. I understand wanting to limit their means of harming themselves, but that's also a pretty big incentive to lie about one's mental health condition if admitting it will get you stripped naked and stuck in an isolation cell.

To his credit, this episode and the one last year that got them cited by TCJS have Sheriff Smith thinking about the issue in a more proactive fashion:
Smith said he wants to go beyond jail standards and put more safeguards in place.

During the jail’s January inspection, the sheriff’s office asked TCJS to return to host this week's training classes on suicide prevention. The instructor taught the class for four groups of law enforcement personnel from around East Texas on Tuesday and Wednesday. 

"That’s part of addressing the issue. … We’re doing everything we can do," Smith said of the training. "I’ve already given (staff) ... an assignment to think outside the box. What can we do that’s not being done anywhere else to get out in front of all possibilities and to limit suicide as much as we can?," Smith said. "Forget about what the jail commission requires us to do with minimum standards, what else can we do to do that?”
Grits tends to credit the Sandra Bland tragedy last year with a heightened focus on suicide prevention in Texas jails. Jailers are more likely now to be held accountable when something goes wrong, especially when they cover it up. And that in turn pressures administrators like Smith to take prevention much more seriously.

Monday, March 21, 2016

On the (near) future of Texas criminal justice reform

The Texas Observer published an essay by Grits describing an array of criminal justice reform issues likely to emerge during the 85th Texas Legislature next year. Check it out. And here's an awesome infographic they produced accompanying the story.

Thanks to editor Forrest Wilder for soliciting the article, it was fun to write, and hopefully you'll find it fun to read.

Friday, March 18, 2016

Houston Police Department “robbery stings” result in five deaths since September

Yesterday evening, officers with the Houston Police department shot and killed two people and injured two others after the officers confronted five armed robbery suspects following a hold-up at a furniture store. The officers had been following the suspects for the prior 24 hours.

Last night’s shooting resembles a pattern in Houston that I have noticed since I began following officer-involved shootings in Texas after a new reporting law took effect in September: HPD officers trail armed robbery suspects or stake out a location they believe will be robbed; officers confront the suspects as they commit the robbery; gunfire erupts; officers shoot and kill or injure the robbery suspects. In reports to the Attorney General, the operations are referred to as “robbery sting[s].” Including last night’s shooting, there have been four robbery stings since September involving HPD, which have resulted in five people killed and five people injured. Of the incidents that have been reported to the Attorney General, all the people killed or injured have been Black men ages 25 or under. One person injured was sixteen.

In October, one robbery suspect was killed and another injured after officers confronted suspects who were trying to rob a cash advance business. Also in October, two robbery suspects were killed and another injured after officers confronted suspects who were trying to rob a pawnshop. And in February, a 16-year-old was injured after officers confronted suspects who had robbed a meat market. News reports from two of the incidents indicated that officers involved were undercover or in plainclothes.

Not only have these sting operations resulted in the injuries and deaths of suspects and risked the lives of the officers involved, but they also risk the lives of innocent bystanders, as they take place in shopping malls, parking lots, and other public places, and occur in broad daylight. Last night’s shooting was at 6:45 PM, one incident took place at 10:10 AM, another at 2:30 PM, and another at 5 PM.  In the most recent incident, bullets reportedly hit a nearby Denny’s.

It seems that plainclothes police officers confronting armed robbery suspects during the day and in public places is an incredibly dangerous way to arrest the suspects. I haven’t seen these kinds of incidents occur with other departments, so I’d be curious to know how other law enforcement agencies handle similar arrests without endangering so many lives.

Five new indictments for former parole commissioner Pamela Freeman

A reader emails to point out that former parole commissioner Pamela Freeman, who was indicted for record tampering in 2014 has five new felony charges out of Walker County, as evidenced by this screenshot:

Freeman was indicted based on allegations that she falsely claimed five inmates who were up for parole had declined to be interviewed regarding their possible release and all were denied. See prior Grits coverage.

Under the penal code, tampering with records is a Class A misdemeanor unless "the actor's intent is to defraud or harm another, in which event the offense is a state jail felony," which is the offense with which Freeman was charged in these latest cases.

The original case, for which attorney and former Congressman Craig Washington is her retained counsel, has been repeatedly reset, having last been scheduled to go to trial in January. As of this writing, Washington is not listed as the attorney of record in the new cases, indictments for which were handed down in February, even though his bar license should have been reinstated by now.

Paging my reporter friends: Somebody ought to get on this story.

Cause and effect: Veto of Public Integrity Unit funding costing Collin County taxpayers

Grits finds complaints by the Collin County Commissioners Court about paying legal bills for AG Ken Paxton's special prosecutors ironic. A judge dismissed a lawsuit challenging the fees and ordered them to pay the legal tab, which has topped a quarter million dollars. According to the Dallas News:
Collin County commissioners have been vocal about their opposition to the costly Paxton prosecution, saying they have no choice but to pay the amounts ordered by the court. In a blog post on Sunday, County Judge Keith Self called again for the special prosecutors to resign so that another district attorney from the region could be assigned to the case.

“Our taxpayers deserve better,” Self wrote.
Perhaps, if this is such a great concern, Judge Self and the commissioners court should lobby the Legislature next year to reinstate funding for the Public Integrity Unit at the Travis County DA. Former Gov. Rick Perry's veto of their budget is the reason they're stuck with these bills. Before 2013, state taxpayers would have picked up the tab.

Thursday, March 17, 2016

Thanks, Maurice!

I quite enjoyed this declaration from our pal Maurice Chammah of the Marshall Project in response to the question, "Does Henson identify as liberal/progressive?" This tweet was also particularly kind. Gracias, amigo!

Debtors prisons, robot law, flying pigs, and other stories

Here are a number of items which merit Grits readers' attention even though I don't have time to develop them into full posts:

Police accountability roundup
Three of four federal districts in Texas are among those in which US Attorneys decline nearly all civil rights cases related to misconduct by police officers. In San Antonio, a man beaten to the point that he was paralyzed by undercover drug cops and SWAT officers targeting the wrong person has sued in federal court, though his own lawyers, not the US Attorney, are pushing the case. In Dallas County, a Farmer's Branch officer has been indicted on murder charges after killing an unarmed 16-year old he'd chased into neighboring Addison. And Houston cops killed three unarmed suspects last weekend, in each case after initially using their Tasers, which the police union says were ineffective. (So much for Tasers letting police avoid fatal mistakes.) Though the Attorney General's office recently overstated the number of people shot and killed by Texas law enforcement, it almost seems from these stories that Texas cops aim to catch up.

Robots and American Law
I'm really looking forward to attending this talk next Tuesday by Ryan Calo on "Robots and American Law" at the Strauss Center, UT Law School. See an article from The Atlantic based on Calo's paper on the topic. Not long ago, my granddaughter asked if Isaac Asimov's three laws of robotics - starting with robots may never harm a human, or through inaction allow them to be harmed - were real laws. "No," I replied, but they should be."

Medical care scrutinized at Galveston jail
After the Galveston Sheriff was sued over the death of an inmate who did not receive prescribed medication, the Houston Chronicle reported, "Six inmates have died while in custody of Galveston County jailers since January 2010. In five of the deaths, the sheriff's office listed the cause of death as "intoxication or illness/natural causes," while the sixth inmate died from suicide. [Jesse] Jacobs' death was not the first time the jail has been scrutinized for its medical care of inmates: The jail ran afoul of state jail regulators in 2013, when inspectors found that the county was not dispensing medication as doctors had ordered."

Racial profiling and searches at traffic stops
Reported the Austin Statesman, based on a new report from Austin's Police Monitor, "During stops that resulted in a citation or an arrest, African-Americans had a 1 in 6 chance of being searched in the same type of stops, which was the same rate since 2012. Hispanics had a 1 in 9 chance of being searched, which also was the same rate from the previous two years, the report found. Whites had a 1 in 22 chance of being searched."

Thinking about innocence
With the Timothy Cole Exoneration Review Panel meeting next week, this article on conviction review units at prosecutor's offices and this one on rethinking rules for police interrogations. (See agendas and backup materials here.) Speaking of innocence, the Texas Tribune has a story explaining why Ben Spencer, who a judge declared in 2007 was actually innocent, is still incarcerated. Short answer: The Court of Criminal Appeals insisted that Spencer's attorneys prove a negative - that he could not have committed a crime - when the most that's practically possible is to debunk all the evidence against him, which they have done.

Wow, look at those flying pigs!
At the 5th Circuit, former Texas Supreme Court judge Priscilla Owen authored an opinion overturning a child porn conviction because of prosecutorial misconduct.

John Cornyn, George Will tout crimjust reform
Columnist George Will featured comments from Texas Sen. John Cornyn in an article titled, "Rethink causes of crime, need for punishment." Cornyn lamented that the criminal justice system "has become by default a social-services provider." Will, who has more of a way with words than the senator, made the conservative case for reform: "What justice requires, frugality encourages: Too many people are in prison for too long, and too often, at a financial cost disproportionate to the enhancement of public safety."

DOJ critical of using arrest warrants for collections
I'm thrilled to see my old pal Vanita Gupta at the Civil Rights Division of the Justice Department targeting excessive fines and fees and debtors' prison policies. See New York Times coverage, a letter sent by DOJ to chief justices and court administrators chastising them for using arrest warrants for collections, and here's more background from the DOJ. Noted the Times, "The issue has helped forge alliances between liberal civil rights groups and conservative organizations. Grover Norquist, the conservative activist, spoke last year at a White House summit meeting on poverty and incarceration. The Institute for Justice, a libertarian organization, has brought lawsuits accusing cities of using court fines to raise revenue."