Monday, October 17, 2016

Forensic snafus, depressed DAs and judges, and the risks of risk assessments

In a few weeks, this accursed presidential election will be over and, the following week in Texas, state legislators will begin prefiling bills. Until then, there's little for the policy-minded to do but hunker down until the circus leaves town and plan ahead for what's next. To that end, here are a variety of recent stories which merit Grits readers attention more, IMHO, than the latest bloviations on the presidential campaign trail.*

Ask CCA candidate why she won't use public defenders
Texas Court of Criminal Appeals candidate Mary Lou Keel stopped using the Harris County Public Defender Office because of a dispute with some of their attorneys, and the HCPD won't say what it involved, the Houston Chronicle reported. Journalists should inquire and she should say. After this most wretched primary season which saw ignorance rewarded and qualified candidates punished, Grits harbors few illusions that people cast informed votes in these races. But in theory, at least, it'd be useful for voters to know the likely next CCA judge's views on public-defender systems and indigent defense, to the extent the conflict sheds any light on them. News of the conflict emerged in light of a new state audit of Harris County indigent defense systems, a document which Grit may delve into in more detail in a future post.

Another forensics SNAFU could affect thousands of DWI cases
In Dallas, "Thousands of DWI convictions in North Texas could be jeopardized after the testimony of a state forensic scientist recently came under scrutiny." Get used to these sort of headlines. In the coming years, many forensics historically admitted into evidence by courts will either be invalidated or, even where the science is valid, found to be performed by incompetent analysts using unjustifiable methods. The temptation to treat them each as isolated incidents should be ignored. In many cases, folks are looking skeptically at long-used forensics for the first time to assess their validity, and more often than not, what they discover isn't up to snuff.

What to do with a depressed judge or DA?
Resignations from Dallas County District Attorney Susan Hawk and 5th Court of Appeals Justice David Lewis raise questions about what should happen when public officials suffer from severe depression or other serious mental illness while in office. The office-holder leaving voluntarily solves the instant problem from the perspective of formally staffing the slot, often after months or longer of putting off the inevitable. But it's a near certainty the situation will recur. There was apparently a move underway to remove Justice Lewis (whom Grits first met when he was one of the attorneys in the Dallas sheetrock/fake-drug scandal, an outrageous frame-up job around the turn of the century in which informants and DPD narcotics detectives intentionally framed illegal immigrants). I feel bad for him and Judge Hawk, but I'm glad they're stepping down. It's extraordinarily difficult to oust someone from public office in Texas for a medical condition, as it should be; even writing the words seems wrong. Some will argue that behavioral health problems are different from cancer or a heart condition because they specifically impact cognition. OTOH, plenty of Texas prosecutors and judges without diagnosed mental illnesses have suffered from poor judgment and impaired cognition - sometimes to much more deleterious effects than in either of these two instances - and nobody but voters can take them out.

Documenting a dystopian, modern-day witch hunt
The documentary "Southwest of Salem" about the San Antonio Four aired on the Discovery ID network over the weekend. See Rolling Stone's writeup, which observed that transcripts from the trial "read like a dystopian nightmare."

Debating the risks of risk assessments
This assessment at the Washington Post of the debate surrounding whether "risk assessments" generate racially discriminatory outcomes more or less sums up my view: 1) There are no perfect risk assessments because some of the risk factors reflect societal disparities and interpreting their meaning involves value judgments and tradeoffs, not static, objective analyses. However, 2) risk assessment instruments overall pretty clearly generate more consistent justice for more people and discriminate less than judges and prosecutors.  So for now - depending on the instrument - Grits generally favors them, though I'd like to see not-for-profit models used which don't involve black-box analyses which defense lawyers can't refute nor cross-examine.

Conflict of interest and prosecutorial discretion
A new article for Grits' reading list: "Rethinking prosecutors' conflicts of interest." The authors urge in particular reconsideringprosecutorial discretion, opining that "Conflicts of interest are endemic to almost all prosecutors’ discretionary decisions, and are the source of many instances of misconduct and abuse."

* It's hard to imagine that, at this late date, anyone politics-and-policy-focused enough to read this blog is still an "undecided" presidential voter. And if you've already decided, reading the latest back-and-forth provides no new or useful information. If one can muster the mental discipline to ignore it, doing so frees up a lot of brain space.


sunray's wench said...

I use risk assessments quite a bit in my work, but my work doesn't involve deciding the future freedom of another individual. I think they are a misleading abdication when used to determine the possibility of recidivism in relation to parole or even housing within a prison system. To judge an individual on the basis of other people's history is painting with too broad a brush for my liking.

Anonymous said...

" though I'd like to see not-for-profit models used which don't involve black-box analyses which defense lawyers can't refute nor cross-examine."

Have you looked at the Texas Risk Assessment System (TRAS) that is used here? Developed and researched in Texas on Texas offenders, and used statewide in probation at no cost. This was based on the Ohio Risk Assessment System developed by the University of Cincinnati. It is pretty much what you ask for.

Anonymous said...

The HCPD's office won't say anything the dispute with Keel because the office is being diplomatic and does not want to publicly call out a judge. If one examines the lawyers that Keel appoints, people in the courthouse know that the PD's office provides better representation than Keel's appointed lawyers. Keel just has a massive ego and will not work well with other judges in CCA if she gets elected.

Anonymous said...

SW: Risk assessment instruments can seem strange because they don't simply look at the individual -- and may fail to take into account specific quirks/characteristics of that individual - but the literature tells us that individualized risk assessments are often way off the mark, and are extremely prone to bias on the part of the assessor - look at the future dangerousness predictions made in the past by Drs. Grigson and Coons in death penalty cases which were often proved wrong. At least risk assessment instruments are based on empirical data about past performance of large, similarly-situated groups of individuals with the same characteristics as the individual in question, and provide some degree of objectivity.

Anonymous said...

The recommendations from traz almost always require classes which defendants need to pay for out of pocket and seem to be a way to up the coffers of probation departments. Scam

Anonymous said...

Grits: There's nothing to prevent defense lawyers challenging risk assessments, or any evidence they think might be questionable. The problem is that defense attorneys simply won't educate themselves about the underlying scientific issues and can't seem to understand the concept of filing and litigating comprehensive pretrial motions. I speak as a frustrated appellate lawyer who repeatedly sees cases where highly questionable "science" has been let in without a murmur from the defense ... It was, to a large extent, the defense bar that LET Grigson and Coons and other quacks ply their trade for so long - the flaws in their methodology were apparent to any real psychiatrist -- or thinking person -- from the get-go.

Anonymous said...

The TRAS has in fact reduced the number of high risk offenders and increased the number of low risk offenders. High Risk offenders require "classes" as one anonymous correctly states, and sometimes they do require the offender to pay some amount for the class or class materials. But the low risk offenders are generally not referred to classes. Therefore, the TRAS assessment has actually resulted in less offenders being referred to treatment, classes, etc.

There is always a cost. Grits and many of the comments posted act like when probation "fills its coffers" it is somehow "kicking back" that money to its employees. Take a look at the way funding for probation is done in Texas and the incredibly low cost per offender per day that is spent through probation. I am sure Grits knows, but I bet very few of those that post stupid comments about how probation is "filling up its coffers" has no clue.