Gifts or Bribes? Prosecutor took donations from defendants who received leniency

This is a rather stunning story out of Brown County, and affirms why it was never a good idea to allow prosecutors to accept bribes gifts from people in their jurisdiction.

Most prosecutors in Texas are barred by state law from taking gifts from people in their jurisdiction. Among the ethical questions such arrangements could raise, the most basic is that a defendant could simply buy his way out of punishment for a crime. Yet for nearly a decade, the Brown County Attorney’s Office has arguably done something similar. [County Attorney Shane] Britton has made “donations” from defendants the foundation of a pretrial diversion program that lets people avoid prosecution for drunk driving, driving without a license, shoplifting and other misdemeanors. In this way, hundreds of defendants have paid a combined $250,000 since 2008 to cover travel to conferences, cellphones for Britton and his staff, and advertisements in the Brownwood High School cheer calendar, according to county records. By covering other office costs with donations, Britton was even able to convince county leaders to boost salaries for himself and his staff.

In Texas, paying for cops, courts and prosecutors with fees from defendants has gotten more and more popular over the years. But what happens when the drive to do justice on the cheap collides with a rogue prosecutor? 

Only in the last year has Britton’s office started to get critical attention from the county’s legal community. And in the tight-knit courthouse, it’s hard to miss the Texas Rangers collecting records regarding his office, or the rumors of an FBI investigation into whether donations were accepted off the books. When county leaders commissioned a forensic audit of the fund, they found huge gaps in record-keeping that suggested, at best, a casual approach to taking money from defendants. At worst, his critics allege, he ran an illegal collection scheme for over a decade that blurred the lines between fees, donations and bribes.

Read the whole thing, and kudos to Patrick Michels of the Texas Observer. He did a great job with this story.

Revisiting Grits' Ten Maxims for Relevant Journalism

As journalists across the nation engage in incessant navel gazing over how to reconstruct their profession's practices in response to replicable manipulation methods exposed by the presidential election, it's worth reminding folks of Grits "Ten Maxims for Making Journalism Relevant in the 21st Century." Looking back at that piece, now written nearly four years ago, they all still seem directly applicable, right down the line. Indeed, in the Trumpian era, the first and tenth maxims, in particular, should rule above all.

DPS surge resulted in harassment of border-area drivers

Grits isn't sure at this point why journalists bother examining performance outcomes or cost-benefit analyses when it comes to immigration or border security. Somewhere during the 2016 presidential campaign cycle, debates on these subjects passed wholly through the looking glass and pols now feel free to just say stuff without any reference to facts or reality.

Regardless, the Dallas News gamely demonstrated yet again, if further evidence were really necessary, that Texas' much-ballyhooed border security buildup has been a public safety bust. During the period after the DPS surge began, traffic tickets in areas with expanded patrols increased slightly. But the big change came in traffic stops resulting in warnings, which skyrocketed more than five-fold almost immediately.

That means DPS is stopping a lot more people but in most cases there isn't enough criminality present even to justify giving them a ticket. So tens of thousands of South Texans were being subjected to unjustified pretext stops which are basically fishing expeditions, not detentions based on legitimate public safety needs. Justifiably, reported the Morning News:

some critics continue to charge that DPS remains unable to prove real success at the border beyond boosting traffic enforcement. 

“For that level of scrutiny on your driving habits, what are we getting?” said Rep. Poncho Nevarez, an Eagle Pass Democrat who serves as vice chairman of the House Homeland Security and Public Safety Committee.

Moreover, both citations and warnings dropped steeply across the rest of the state as DPS diverted resources to staff up the border surge, found the paper's analysis. "Comparing the two years after the surge against the two years before, citations spiked 30 percent and warnings rose 160 percent in Starr and Hidalgo counties. In nonborder counties, meanwhile, citations dropped 21 percent and warnings fell 25 percent."

Some individuals were subjected to a level of intervention which can only be described as harassment. Almost unbelievably, "Looking at the 22 months after the surge began, The News found more than 600 people in Starr and Hidalgo counties who were stopped at least 10 times. More than 300 were stopped at least 20 times. One person was pulled over 52 times in that time period."

With the new president pledging to begin construction of his "beautiful" new wall on "day one," we're already hearing open discussion among Texas Republicans of ending DPS' border deployment and letting the feds handle the job. Even though that's clearly a self-justifying fig leaf, IMO legislative critics should let them have this one, take "yes" for an answer, and seek to end the $800-million-per-biennium pork package, freeing up the money to use for other priorities.

State leadership isn't going to end this wasteful boondoggle because it's failing to achieve good outcomes or doesn't make cost-benefit sense. That ship long ago sailed. We must recognize that this budget item originated as a partisan slap at the Obama Administration, not in response to real-world public-safety threats. So, having been spawned of overt partisanship, that's probably the only basis on which the DPS surge can realistically be rolled back while giving state leadership sufficient political cover. I'd be fine with that.

Convenience vs. the Constitution: CCA habeas procedures value former over latter, says high-court judge

Thanksgiving is over, but Grits is grateful for Texas Court of Criminal Appeals Judge Elsa Alcala, without whom I wouldn't have been aware of this major problem with the court's habeas corpus procedures.

In an opinion released this week, Alcala pulled back the curtain on the court's internal policies to reveal how most habeas writs are decided by a single judge, in her opinion in contradiction to requirements in Texas' Constitution and statutes. This is a must-read opinion for anyone interested in Texas habeas corpus matters.

Basically, the CCA has identified entire classes of cases which are segmented out by staff and routinely denied by a single judge. Alcala agreed the writ in this case should be denied, but filed this concurrence to expose problems with the process.

In Alcala's view, "the Texas Constitution requires a decision by a quorum of judges on this Court, and thus a denial of habeas relief by a single judge on this Court fails to comply with this requirement." She believes that, "the Texas Constitution’s mandate that a quorum of judges decide this Court’s cases is not satisfied by what is effectively a standing order of this Court that permits an individual judge to act as a proxy for a quorum of the judges on this Court on the basis of a pre-vote on a category of cases that are never actually individually seen by any judge other than the proxy judge."

In non-death penalty cases, she points out, the Texas Constitution (Art. V, Sec. 4) permits a panel of three CCA judges to consider habeas writs, but not individual judges as is this court's practice. In a panel of three, two judges constitute a quorum. So by that reckoning, at least two judges must participate for these writ denials to be valid.

The Texas Constitution does give individual members of the CCA power to issue habeas writs, she argues, but not to deny them. And in any event, the court's authority "is subject to regulation by the Legislature, which has decided not to permit the exercise of that power for Article 11.07 writs," which is most of them. Those writs are issued through the convicting court and the CCA's statutory role only begins after that court does its work.

The issue is important because there are three, maybe four CCA judges who reflexively side with the government in all cases. These judges can be counted on to reject defense arguments not so much because they're wrong, but simply because they come from the defense, whom they like to blame even for problems that prosecutors cause. So any writ that goes to Sharon Keller, Barbara Hervey, Michael Keasler, and in non-death cases, probably Kevin Yeary, are apt to get rejected and round-filed no matter what the situation. The court remains sharply divided and the difference between how different judges might view cases is substantial.

In that light, requiring at least two out of three judges on a panel to consider a case provides at least some check on members of what Grits has dubbed the Government-Always-Wins faction on the court, which includes the Presiding Judge who assigns cases. If the answer to a habeas petition is just that "Michael Keasler said 'no'," it's hard to assess whether that's because the petition itself was inadequate, or just because certain judges walk into most cases having settled on a predetermined, pro-government outcome.

IANAL, so I'm not sure what recourse there is when a majority of high-court judges choose to disregard the law for their own convenience. (Maybe such things can get appealed to SCOTUS? Some more knowledgeable person, please enlighten us in the comments.) But Judge Alcala deserves thanks for making public an internal, procedural practice that violates the constitution and limits the application of justice. If she didn't say something, how could we know?

CLARIFICATION: The original post implied individual CCA judges could "grant" habeas writs when Alcala's opinion made clear they may only "issue" them, ordering a defendant to appear before a trial-court judge. In her view, individual CCA judges are not authorized to grant or deny 11.07 habeas writs under their own authority. Read Alcala's opinion for a more complete explication of these issues. Grits regrets any confusion.

Black Friday #cjreform reading list

Grits plans to spend some of the weekend catching up on my reading, and thought I'd share links to a few recent academic articles I'm hoping to get to in the coming days:

"The Constitution of Police Violence": "[T]he same legal framework that authorizes and normalizes the ordinary traffic stop also permits and even encourages killings of unarmed suspects."

"Out of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution, and Constitutional Limitations": If fines and fees "serve a primary or even exclusive revenue raising function," should they be classified "as emanating from exercise of the taxing rather than the policing power of the municipality"? The article focuses on Missouri, where anti-tax ballot initiative by voters helped spur reliance on fines and fees for revenue.

"Consolidating Local Criminal Justice: Should Prosecutors Run the Jails?": Would making prosecutors responsible for jail costs limit incentives to overuse incarceration for misdemeanors? One occasionally hears pie-in-the-sky suggestions that counties should pay for incarceration in state prisons for offenders convicted in their jurisdictions so that prosecutors have skin in the game when seeking harsh, expensive punishments. This article usefully extends that analysis to the misdemeanor level, where such a transformation might be easier to implement.

"Imagining Perfect Surveillance": A fascinating (and somewhat optimistic) thought experiment about what future "perfect surveillance" might look like and how it might affect the justice system.

"Immigrant Protective Policies in Criminal Justice": In the wake of Trumpian calls for deporting immigrants with criminal records, this article's suggestion for an "equality" based message and approach holds promise as a means for "formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities."

"Body-Mounted Police Cameras: A Primer on Police Accountability vs. Privacy": Might privacy concerns over police body cameras make them a detriment to community policing? And as exceptions are made to whom and when police record, might accountability benefits decrease? These and other emerging, unresolved issues about body-camera tech are outlined in this short paper.

"From Policing to Parole: Reconfiguring American Criminal Justice": "Evidence-based means exist to make major improvements in every facet of American criminal justice. What has been lacking is the political will to use them."

CCA plurality: 11th-hour evidence disclosure insufficient to comply with Brady

David Temple may be the most thankful Texan in the state today.

This week the Texas Court of Criminal Appeals overturned the conviction of the former football coach from Katy whom a jury found guilty of killing his wife in a high-profile Harris County case. (See coverage from the Houston Chronicle, Houston Press, and KHOU.) Visiting Judge Larry Gist had found prosecutor Kelly Siegler - perhaps the Harris County DA office's most famous progeny who now stars in a Dick-Wolf-produced TV show - withheld exculpatory evidence. She failed to turn over 1,400 pages of police reports until midway during the trial, giving the defense no time to investigate or use much of the information.

At the habeas hearing, Siegler testified before Judge Gist that she had no obligation to turn over potentially exculpatory evidence if she did not herself believe it was true. That "misconception" is what convinced three members of the court to sign on to a plurality opinion by Richardson granting a new trial  (Judge Newell, who until recently worked for the Harris DA appellate division, did not participate in the case.) 

Kevin Yeary provided the fifth vote for a new trial with a rather odd and IMO pointless concurrence. He would not have found Brady violations but instead grant relief based on ineffective assistance of counsel, with the ineffectiveness in question being that they could not adequately use information from the 1,400 pages because they were handed over so late. In other words, Yeary agrees the defendant got screwed but prefers to blame defense counsel for the prosecution's delayed disclosure. It's opinions like this one that make me think Yeary is moving quickly toward the Government Always Wins faction, though, as in this case, he still has one foot planted outside that tent.. That was a ton of work to craft an opinion whose sole purpose was not to change the result but to pretend that Kelly Siegler did not improperly withhold exculpatory evidence, when clearly she did so.

The other three judges in the Government Always Wins faction - Keller, Hervey, and Keasler - dissented but did not explain why. That's become somewhat common when they lose, but IMO an unexplained dissent here doesn't pass the smell test. If you think the result was wrong, explain why. Grits' sense is that, in cases like this, they don't explain their thought process because to do so would expose (barely) hidden motivations. It's difficult to disagree with Judge Richardson's reasoning that the extraordinary delay in disclosure prevented the defendant from getting a fair trial. Even Judge Yeary agrees that defense counsel couldn't adequately make use of the police reports so late in the process.

But although these three GAW-faction judges clearly believe convictions obtained in this fashion should be upheld, explaining why and how would open them to ridicule and condemnation in the legal community. They would be justifying Brady violations that cannot be viably defended on legal grounds. Instead, it looks to me like the three GAW judges are heeding some of my father's favorite advice, "It's better to remain silent and be thought a fool than to speak up and remove all doubt." And because media coverage of the court is so sparse and poor, they pretty much always get away with this sort of one-sided pro-government gamesmanship.

Obama finally ramped up on clemency in second term, but not nearly enough

As President Obama's total sentence commutations surges past 1,000, it's worth remembering two things. First, just four years ago, his clemency record was so poor that Pete Ruckman at Pardon Power and your correspondent launched a campaign urging him to pardon deceased writer O. Henry to highlight his stinginess on pardons, which were then at near-historic lows under his presidency. Though the application was denied long ago, Ruckman is still carrying that banner!

Second, as evidenced by this graphic produced by Prof. Ruckman, the president's application of executive clemency has been puny and reticent compared to the reality of federal overincarceration:

In that light, not so much to get excited about, huh? Mark Osler, formerly a law prof at Baylor, now at the University of St. Thomas, had an op ed this week urging the President to ramp up his end-of-term clemency to historic levels. And as Pete Ruckman reminded the president as he oversaw his final turkey pardoning, it still wouldn't hurt him to pardon O. Henry.

MORE: From Ruckman on Obama's clemency legacy.

San Antonio Four declared actually innocent!

Congrats to the San Antonio Four and their attorneys on the women's exoneration and findings of actual innocence from the Texas Court of Criminal Appeals. See coverage from the SA Express-News, the majority opinion by Judge David Newell and a concurrence from Elsa Alcala. The decision clears the way for the four women to be compensated for their wrongful imprisonment.

Judges Keller and Keasler did not agree with the actual innocence claim but would have granted relief under Texas' junk science writ, while Hervey and Yeary did not participate in the decision.

Bodycams and transparency: Houston PD edition

Just got an email from the good folks at KHOU. It read in part:

In an era of smartphones and social media, body cameras have become increasingly prevalent in police departments nationwide. Our five-person investigative team, based out of Houston, is part of TEGNA and KHOU. TEGNA has a new initiative in two of its stations to take a group of journalists “off the grid” and allow them to work on a project until it’s complete. On Sunday, our team launched our first project and we are hoping you will share our investigation with the readers of Grits For Breakfast. We researched more than 60 police departments nationwide to get information on their body-camera programs. 

Here’s a bit more information:

Body cameras are touted as tools to help on both sides of the lens: for the police and the citizens. To date, nearly 4,000 departments have implemented a body-camera program. The focus of our investigation is the Houston Police Department’s $8 million body-camera program, touted as the blueprint to transparency and accountability. 

But a four-month investigation by KHOU-TV, the CBS affiliate in Houston, found that the body-camera program is falling short of its promise. In a four-part docu-series called Transparency, KHOU investigates HPD’s implementation of the program.
The major findings were:

• HPD promised to conduct monthly audits of videos to check that officers are recording when it counts. We found that one random audit was conducted in six months.

• The Harris County District Attorney’s Office is missing videos in more than 700 cases. Houston’s interim police chief did not dispute this, but said they are investigating the issue.

• HPD delivered videos in 132 cases to the DA for use in court after the cases were already closed.

• Although the vendor that provides HPD’s cameras offers a safety net that ensures that footage will not be missed (free of charge), HPD chose not to activate that function.

You can see the full investigation at bodycamtransparency.com.

On the failures of Texas' eyewitness ID reform, when innocent people plead guilty, pondering immigration policy, and other stories

Here are a few odds and ends to clear Grits' browser tabs of brief items which merit readers' attention:

Report confronts sexual assault in Texas prisons
Grits will have more on this soon, but for now here's the link to a new report from the Texas Association Against Sexual Assault and the Prison Justice League on sexual assaults in Texas prisons - one of the first in-depth looks at the issue since Texas agreed to comply with the federal Prison Rape Elimination Act. MORE: See coverage from the Houston Press and the San Antonio Current.

TX eyewitness reform didn't stop suggestive IDs, photo arrays
In a recent dissent, Judge Elsa Alcala effectively showed why and how Texas' eyewitness identification reforms have failed to stop convictions based on biased lineups, in this case where the suspect was the "sole one in the photo array matching the physical description of the shooter." See the majority opinion, which mostly relied on outdated criteria from older cases that predated modern best practices in this area.

Concerns over cell-phone location data legitimate, non-partisan

In Texas, lots of folks were concerned about privacy of cell-phone location data long before the recent presidential election, including loads of conservatives. So I hate to see the push for federal cell-phone privacy legislation cast in terms of fear of Donald Trump. Grits wasn't any more happy when it was the Obama Administration pushing to maximize government surveillance powers.

When innocent people plead guilty
Reported AP, "Last year, 68 out of 157 exonerations [nationwide] were cases in which the defendant pleaded guilty, more than any previous year. That's 43.3 percent, for those keeping score at home.

'Detached from reality' Crime and public perception
Following up on their own poll, discussed here on Grits, the Pew Research Center explored why "Voters perceptions of crime continue to conflict with reality." Gallup over the years has continuously found that voters perception of high crime is "detached from reality." At Vox, German Lopez has explored this odd and persistent phenomenon. The Brennan Center has found that headline mentions of murders in newspapers did not decline along with the volume of murders themselves. In this election we saw that misperception brazenly exploited by the President-elect, who went around claiming violent crime was at a 45 year high when the opposite was true. By the time he trotted that one out, he had told so many flat-out fabrications that the media''s fact checking seemed tired and pro forma, as do hubristic pretensions that media will now solve misconceptions they've actively created.

Okie Governor leading by example on criminal-justice reform
Read Oklahoma Governor Mary Fallin on the recent election and criminal justice reform. She's saying the sort of things while in office that Texas Gov. Rick Perry waited to embrace until after his departure. Voters in her state just overwhelmingly voted to reduce penalties for low-level drug possession from a felony to a misdemeanor. The Lone Star State should follow suit, or Oklahoma may soon supersede the Texas GOP when it comes to Right on Crime bona fides.

Pondering immigration, walls, symbols, and public opinion
Here's the problem with the Trumpian plan to deport "criminal" immigrants: After years of the Obama Administration aggressively enforcing their "Secure Communities" program - a ham-handed operation which never worked well and of which Grits was never a great fan - there aren't nearly 2-3 million of those left to deport. (Immigrants commit crimes at much lower rates than citizens. Foreign nationals account for 16 percent of Texas' population, for example, but only eight percent of arrests.)

Will "I'll do what Obama did," plus spending $10-20 billion (or whatever figure) on an American Great Wall, be enough to satisfy voters spurred to the polls by anger over Latin American immigration? Perhaps rebranding the policy as Republican will allow pols to declare victory and stop fighting, the way Texas Rs seem ready to declare victory on border security and spend the money on something else. The campaign is over now and governing requires confronting reality. Grab some popcorn and stay tuned.

In Texas, that reality includes the fact that undocumented immigrants make up more than eight percent of our active labor force. When push came to shove, while some Texas Rs have indulged in nativist rhetoric during campaigns, most have always understood and respected core interests of the business community when governing. At first blush, that seems to be the approach the president-elect will take: Talk big, wait for public discord to die down, then declare victory without really having changed anything and move on. While essentially frivolous as a border security suggestion, perhaps a "Great Wall" will serve a more important purpose as a tangible, lasting symbol. Who knows? Maybe that's what's necessary to sell Obama's immigration policy as a Republican solution that the president-elect's still angry base will accept.

On debtors prison policies as job security for government bureaucrats

Not all judges view poor defendants who can't pay fines for petty offenses as a source of "job security," but neither is the attitude uncommon, nor in the present political environment, disqualifying. The Houston Press' Meagan Flynn has the story of Houston magistrate Judge Joe Licata, In a recent case involving a woman with high Driver Responsibility surcharges:

Licata warned her that, if she didn’t pay the fines for these tickets and renew her license after paying surcharges to the Department of Public Safety, “then you’re gonna get arrested every time you get pulled over.” 

That was nothing to her, Clearey responded — because she had already become trapped in a cycle of arrests. 

“It’s nothing to me either,” Licata told her. “It’s job security.”

Tis as true as it is horrifying that he would view it through that lens.

The Texas Organizing Project has produced a video with examples of problematic statements by Licata from the bench.

Bills frame Texas' 2017 marijuana reform debate

In the wake of legalization votes last week in California and elsewhere, marijuana is bubbling up as a sleeper issue, as evidenced by the first day of bill filing at the Texas Legislature yesterday. The Texas Tribune published a brief roundup of marijuana-related legislation filed so far. Four bills were filed lessening criminal penalties in some way, shape, or fashion, and three others would authorize some version of legal medical marijuana, as is now available in the majority of states. After last week's election, more than 20 percent of Americans live in a state with legalized recreational pot.

Medical marijuana is beyond this blog's ken. But how will the 2017 debate at the Texas Legislature be framed on the question of reforming criminal laws governing pot?

In 2015, then-Rep. David Simpson's bill to "treat it like tomatoes" dominated discussions by formally proposing the most radical legalization framework possible. While more than a few legislators agreed with Simpson, filing that bill scared off the leadership and doomed more moderate proposals, which made it out of committee but never received a vote on the House floor.

This session, there's hope that could change. There are several serious proposals being made which IMO have a mathematical chance of passage in the current environment.

The most straightforward version is state Rep. Harold Dutton's HB 82, which would reduce penalties for possession of less than one ounce of pot from a Class B to a Class C misdemeanor. HB 81 by Rep. Joe Moody would create a new civil penalty to apply to low-level pot possession (Sen. Jose Rodriguez filed companion legislation). And HB 58 by Rep. James White would establish new specialty courts for diverting marijuana cases.

Of those options, folks who want full-blown legalization most prefer Rep. Moody's bill, which essentially takes pot possession out of the criminal code and formally decriminalizes it. Advocates who favor that approach argue that removing the criminal penalty absolves defendants from an array of federally mandated collateral consequences which apply to even minor drug convictions.

More conservatives, last session including the Texas Public Policy Foundation, are comfortable with Rep. Dutton's proposal to reduce penalties for low-level possession from a Class B to a Class C misdemeanor. This has the benefit of not creating some new class of civil penalty which currently doesn't exist in that form under Texas law. And politicians can still rightly insist they did not support "decriminalization," a phrase which for many has Culture War implications. (Former Governor Rick Perry has embraced "decriminalization" as a goal, but did not do so until he was on his way out of office.)

Either Moody's or Dutton's proposal would reduce jail costs from processing and housing marijuana defendants, as well as relieve county governments from the obligation to pay for lawyers when defendants can't afford one. So those bills would incur significant cost savings for county governments, which pay for those things with local property taxes. Indeed, shifting high-volume offenses from B to C misdemeanors and bail reform which would reduce pretrial detention should be embraced by less-government conservatives as a source of local tax relief.

Rep. White's HB 58 would create specialty courts for first-time marijuana offenders, imposing a waivable $100 fee on them to participate and requiring 8 hours of community service or a class. The incentive is basically to get an order of non-disclosure related to the offense. To me, this needlessly adopts a half measure when the public is already way ahead of the Lege on this topic.

In 2015, a Texas Lyceum poll found that 46 percent of Texans supported full-blown legalization of recreational marijuana, while another 28.5 percent opposed legalization but supported "decriminalization." So three quarters of the public, according to that well-regarded poll, support at least what Rep. Moody has suggested and want policies more radical than Reps Dutton or White.

The public overwhelmingly favors reform. Counties need the budget relief. Now it remains to be seen if political will can be mustered to change the law.

Why prosecutors play defense lawyer at bail hearings, and why they shouldn't

In a new paper published this month in the Hofstra Law Review, Grits contributing writer Sandra Guerra Thompson argued that prosecutors are ineffective at preserving defendants' rights at bail hearings when there's no defense lawyer there, and makes the case that "ethically barred from participating in bail hearings unless defense counsel is also provided."

As it turns out, "In about half of all local jurisdictions today, arrested individuals face a judge at a bail hearing without the assistance of counsel, and in many of those jurisdictions, prosecutors may appear on behalf of the state." In fact, "The ABA Standards for Criminal Justice: Prosecution and Defense Function apparently took the position of preferring the presence of prosecutors in all cases, even those in which a party appears without counsel. The rules assign prosecutors in those cases to protect the rights of the unrepresented accused, effectively casting the prosecutor as a surrogate defense attorney."

Guerra Thompson's article "demonstrates the various ways in which prosecutors are charged with protecting arrestees and concludes that time has proven this approach to be unworkable and ineffective in protecting the rights of defendants at bail hearings."

Her article appears at a time when litigation in Harris County has raised the question of one-sided bail hearings where prosecutors appear before judges without the defendant being represented by counsel. It'd make the process a lot cleaner if the Lege simply required courts to appoint counsel for the indigent by this stage.

When SCOTUS encourages aggressive policing

Here's the abstract to a new academic paper titled, "The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing," which goes on Grits' to-read list:

On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these events are also — and much more importantly — connected by decades of Supreme Court jurisprudence. It will describe how since before the close of the Warren Court in 1969 the Supreme Court began a process of expanding police powers, restricting individual Fourth Amendment safeguards, and encouraging officers to engage in unconstitutional investigative practices. The article will proceed with a particularized focus upon the Supreme Court’s exclusionary rule and standing jurisprudence, and its discussion of Strieff will take place in this broader context. It will explain how the decline of the exclusionary rule and the attendant standing doctrine over the course of several decades has helped foster a culture of aggressive police practices. It will illuminate how the Court’s steady expansion of police investigative authority, coupled with its increasing willingness to forgive constitutional missteps by the government, have encouraged the police to engage in unconstitutional practices and to test the outer limits of acceptable police behaviors. 

When viewed in this context, Strieff is the latest in a series of Supreme Court cases that have implicitly encouraged aggressive police conduct. Strieff is a most unfortunate and perilous expansion of the attenuated circumstances doctrine. Though accurately cast as a case that encourages unconstitutional detentions by the police, a more apt description of Strieff is that it promotes physical contact with individuals by the police without just cause. In contrast to the Court’s good faith exception and attenuated circumstances cases that preceded it, Strieff breaks disturbing new ground; it creates an incentive for officers to get within close proximity of individuals, to detain them unconstitutionally, and to risk unnecessary physical confrontation. At a time when officer aggression has ignited national controversy and irritation in communities (particularly minority) from coast to coast, Strieff delivers the wrong message at the wrong time.

FWIW, SCOTUS may say police have these powers now, but state legislatures have authority to rein them in, if there is political will.

TPPF: Texas grand juries need more reform

With the pick-a-pal method for selecting grand juries now ended in the Lone Star state, the Texas Public Policy Foundation has a new report out identifying additional problems with grand juries and suggesting reforms which the 85th Texas Legislature could implement when it convenes in January to make them more fair and just.

TPPF recommended creating a right to counsel for certain defendants and witnesses appearing before grand juries, as is the case to greater and lesser extents in 26 other states. For example:

In Colorado, all witnesses have the right to counsel in the grand jury room and will be provided such counsel if they cannot afford it. Attorneys are restricted in a similar manner within the grand jury room as in New York. 

Of those defense attorneys surveyed, 80 percent in New York and 75 percent in Colorado believed their presence in the grand jury room led to fairer questioning. Seventy-six percent of New York defense attorneys and 69 percent of Colorado defense attorneys also believed that the knowledge gained by being present helped them prepare for trial or plea bargaining.  

A majority of prosecutors who were interviewed in both states believed that the practice benefits the administration of justice with one prosecutor stating it “lends an air of legitimacy.” Prosecutors interviewed also stated that defense attorneys rarely interrupt the work of the state and are generally silent observers. They were also “unified” that defense attorneys don’t slow their work.

The same two states both give defendants the right to a grand-jury transcript, which TPPF considered beneficial to the process.

Ninety-two percent of defense attorneys in both states found that the transcripts are helpful in preparing for trial or plea bargaining. The interviews showed that several attorneys agreed the transcripts were beneficial to urge clients who wanted to go to trial, but were then reminded of the finer details of the facts of the case based upon the transcripts. 

Ninety-one percent of defense attorneys in New York and 81 percent in Colorado agreed that transcripts improved the accuracy of future testimony.

TPPF also lamented that, at present, "Texas does not explicitly require prosecutors to disclose exculpatory evidence during grand jury proceedings," urging such a requirement be created.

Finally, the group recommended precluding taking cases to a grand jury multiple times unless prosecutors have discovered new, material evidence against the defendant.

These are significant and timely reforms, I'm glad to see the state's most prominent conservative think tank championing them.

Harris County prosecutor gave secret deals in exchange for false testimony

One sees shades of the Orange County snitching scandal out of California in this new story from the Harris County DA's office, reported today by the Houston Press' Meagan Flynn:

A Fort Bend County judge has upheld complaints of prosecutorial misconduct against a Harris County prosecutor who lied to a jury in a capital murder trial about whether she had struck deals with three jailhouse snitches in exchange for their testimony. 

After finding that a prison inmate's false testimony that prosecutor Elizabeth Shipley Exley knowingly allowed on the stand led to the conviction of Edward George McGregor, Judge James Shoemake has recommended McGregor receive habeas corpus relief and a new trial. 

"For a prosecutor to make secret arrangements with witnesses, not disclose them to the defense and the jury, and elicit false testimony where the witnesses deny it, I find that to be just totally deplorable," said Randy Schaffer, McGregor's attorney. "It's basically saying we have the right to present false testimony and there's not a damn thing you can do about it." 

McGregor was charged in the mid- and late-2000s with capital murders dating back to 1990 and 1994 in Fort Bend and Harris counties, respectively. Shipley Exley worked on the case in Fort Bend given it was the first case to go to trial. According to the judge's findings, because DNA evidence wasn't strong enough to convict McGregor, Shipley Exley was in charge of getting three jailhouse witnesses on the stand. They testified that they overheard McGregor confess to the killings. 

Turns out, all three witnesses received some nice perks thanks to prosecutor Shipley Exley's good word. Perhaps the most damning witness was a prison inmate named Delores Gable — because her entire story turned out to be a lie.

Go here for the rest of the story.

Reality Check: In a fact-free era, what can we agree on?

As the whole world ponders the outcome of national elections (a subject which Grits has for the most part dutifully avoided, focusing on my own Texas criminal-justice turf), the big-picture question which disturbs me far more than the temporary resident of the White House is, "How did political discussions in America become so divorced from reality?"

I don't mean reality as in, "the way I see things." I mean reality as in a baseline respect for facts and math. The Pew Charitable Trusts recently published a remarkable poll describing whether or not Americans think progress has been made on different topics during Barack Obama's presidency. Here are the topline results:

I find most of these numbers unfathomable. To take the topic most closely associated with this blog, Crime: By any mathematical measure the nation is better off than in 2008. But only 15 percent think that's true while 57 percent think crime has gotten worse. This is delusional thinking that flies in the face of reality.

Certainly that impression has been exacerbated by the president-elect's stump speech in which he's been going around the country claiming crime is the highest it's been in 45 years, when in fact the exact opposite is true. But that's relatively recent. Long before that, the public believed crime was rising when it was actually falling. I've speculated before on the reasons, but it's a persistent, frustrating phenomenon.

Similarly, 55 percent think the immigration situation is worse than in 2008. But under President Obama, the feds ramped up deportation to highest-ever levels and illegal Latin American immigration precipitously declined.

On the Economy and Jobs, the idea that things are worse now, with unemployment below 5 percent, compared to 2008 at the apex of the Great Recession when the entire global financial system was threatened, beggars belief. Where could such a perception come from? It's utterly divorced from reality.

Of the others, US "standing in the world" and "security from terrorism" are subjective assessments and so those aren't opinions which can be refuted or supported. They're just a function of people's impressions. To me, the metrics say our standing hasn't declined - our military and economic might stand unparalleled and American-generated tech is transforming the globe. And I don't feel less safe from terrorism than when President Bush was prosecuting the Iraq War, which to me was a generator of those problems more than a solution. But because there's no hard metric on which to base an opinion, Grits will let those disagreements pass on the reality-check front.

Race relations is the only area where I can understand the public's view that things have gotten worse. For those judging purely from what one sees in the media from the comfort of one's living room, I'm not surprised most white Americans might think race relations have gotten worse. My own personal view is that recent debates over race and policing merely exposed longstanding problems rather than created them. But there's no doubt race relations remain strained, and those strains are hungrily aired in the media using click-maximizing strategies that gravitate toward the nastiest, most entrenched Culture War debates.

Regardless, that's four of the seven major areas identified by Pew where, objectively, the public's views directly contradict the facts. It's not just that there's countervailing evidence, the public objectively, demonstrably thinks things are true which are false.

I'm not saying this to defend Barack Obama's record. The election is what it is and I don't care a whit about protecting (or harming) the Dems' brand. But how did we get to this place where the majority of the public simply believes big, important things which are not true? And far more important than who is in the White House, how can we change THAT? That's the part of the last year which for me has been unbelievably dispiriting.

Private prison stocks soar on election news

Private prison stocks soared upon news of Donald Trump's ascension to the presidency.

That makes sense. For starters, it's possible that Trump will reverse the DOJ's recent decision to phase out private prison contracts. And the election likely has eliminated the possibility of federal sentencing reform in the near future. Thinking more long-term, if Trump makes good on his campaign promises to implement mass deportation, private prison companies may look forward to enormous new contracts as the feds try to process 11 million people through a system designed to handle a fraction of that volume.

Who knows if that campaign promise was real; certainly it was unrealistic. But I can understand why investors would interpret the election as portending a reversal in fortune for private prison companies. They're probably right.

Crime by 17-year olds plummeting; should they be charged as adults?

The House Research Organization's Kellie Dworaczyk has produced a useful research brief on the issue of raising the age of criminal responsibility from 17-18 years old, a move which would make it easier for state and local lockups to comply with the Prison Rape Elimination Act. Texas is one of seven states which doesn't treat the 18th birthday as the threshold of adulthood, as is the case under federal law. Six states have increased the age of responsibility in the last several years.

When the raise-the-age (RTA) issue was first raised, concerns were raised that the volume of offenders would swamp the juvenile system. But the numbers, especially regarding incarceration, are lower than I'd thought. In 2015, Texas cops arrested 22,065 17-year olds for all offenses combined. There were 8,066 people aged 17-20 who were on probation for an offense committed when they were 17, so clearly the overwhelming majority of those arrests are for very low level offenses. Just 46 17-year olds were housed in TDCJ as of Aug. 31st.

Among arguments in favor of the change: "about 44 percent of arrests of 17-year-olds were for theft, marijuana possession, drunkenness, and liquor law violations." And "The offenses and needs of 17-year-olds are similar to those of other teenagers in the juvenile system."

From a normative perspective, perhaps the best reason for the change is to match the law to public perceptions. Because of media and popular culture, nearly everyone including 17-year olds themselves who're not actually, personally involved in the justice system already believe the age of criminal culpability is 18, and most of those 22k arrested in 2015 (and their parents) were no doubt surprised to learn otherwise. Where possible, the law should match popular expectations because, when they conflict, kids absorb culture all the time and none of them have read the criminal statutes.

Statistics are not gathered - but IMO should be - about 17-year olds housed in adult county jails. "At a March 2014 hearing of the House Criminal Jurisprudence Committee, the Office of Court Administration reported the estimated number of 17-year-olds in local jails on a typical day was 2,868 to 3,119. Most were in jail for misdemeanors. "

The cost estimated for raising the age in Texas, according to a fiscal note prepared in 2015 by the Legislative Budget Board, would be small at first but rise to almost $170 million over five years.

But that only considers costs to state government, which largely finances the juvenile justice system. It did not take into account possible financial benefits. According to HRO, "A 2012 report from the University of Texas LBJ School of Public Affairs estimated that raising the age of jurisdiction of the juvenile justice system in Texas would result in $88.9 million in net benefits for each cohort of 17-year-olds. This takes into account costs and savings to taxpayers and the fiscal benefits resulting from better outcomes for youths and reduced victimization."

There was also speculation that the cost estimate may be overstated. "Costs of raising the age could be less than some estimates. Arrests of 17-year-olds have been dropping for years, with 46,173 arrested in 2008 and 22,065 arrested in 2015." Fewer than half as many 17 year olds were arrested in 2015 as 2008?! That's a remarkable stat. Even Grits hadn't realized the crime drop among youth had been so significant.

The paper discussed briefly the confluence of the RTA issue and the federal Prison Rape Elimination Act (PREA).

Raising the age would help reduce costs to local jails and the state to comply with federal standards under PREA. Texas counties are incurring significant costs to try to meet the sight and sound separation standards. They report dedicating entire floors to 17-year-olds, which means leaving beds empty on those floors and having to move older offenders around a jail to meet recreation or medical needs of 17-year-olds. Counties also could incur costs if noncompliance with PREA were raised in a lawsuit against them. One large county is considering moving 17-year-olds from its jail to a facility hours away to comply with PREA

However, the report hinted at hidden costs to counties not included in the state-level fiscal note:

some estimates indicate the average first-year cost for eight counties would have been $2.2 million. Bexar County estimated an annual cost of between $8.2 million and $8.5 million to implement the change. Harris County estimated $50.1 million in the first full year of implementation and $18.2 million to $19.9 million annually thereafter. The Harris County costs included a new juvenile detention center

Here's why I don't buy those numbers: Why would Harris County need a new juvenile detention center if, when currently prosecuting these kids under adult law, only 46 of them are even locked up in TDCJ statewide in the first place? That rings false to me.

I agree RTA would cause counties to incur costs, but here's the rub: PREA will cause them to incur costs, anyway. Either one of two possible policy choices would cost counties. If the age of criminal culpability is left the same, adult county jails will have to undergo modifications to segregate 17 year olds in ways they haven't in the past. If RTA passes, juvenile systems will incur additional costs (even if IMO the Harris County numbers are inflated).

So pointing to juvie detention costs as a reason not to pass RTA ignores two questions: 1) Might renovating adult facilities cost even more? And 2) with the rest of the country moving toward an age of culpability of 18, should we sink costs into renovations to accommodate the old age regime when the long-term trend is clearly the other direction? Don't we risk having locals invest twice if, a few years down the line, the vicissitudes of fate and history end up forcing the RTA change, anyway? The tradeoffs involved in that choice weren't made as clear in the report as Grits might have preferred.

For my part, I'd rather Texas deal with the PREA issues once and be done with it, passing RTA so that Texas laws and regs better line up with the federal requirements, which treat 17-year olds as juveniles. From a managerial standpoint, it's cleaner, more efficient, and makes more sense. It would also have the added benefit of protecting those youthful arrests from future disclosure, making it easier for those kids to get a job, housing, credit, etc., down the line.

The cost makes this a tougher sell during a legislative session focused on budget cutting. But it's a pay-me-now or pay-me-later kind of deal.

Crimjust implications of elections: Weed wins, Trump voters in Oklahoma backed criminal justice reform

Elections are funny things.

Oklahoma's seven electoral votes went to Donald Trump yesterday by a whopping 65-29 margin. On the same ballot, the same voters approved reducing user-level drug possession from a felony to a misdemeanor and doubled the state's property theft thresholds. That measure, Prop 780, won by a 58-42 margin. A companion measure requiring savings from the move go to treatment and rehabilitaton programs won 56 percent of the vote. Prosecutors and law enforcement interests bitterly opposed the measures, but voters turning out for Trump didn't care about establishment endorsements, voting for less, and less expensive government.

Based on that analysis, one might be forgiven for imagining the Orange One emerged victorious last night because criminal-justice reformers came out, and perhaps could even continue such a delusion until Rudy Giuliani or Chris Christie is named Attorney General. But the truth is, Donald Trump ran on a tough-on-crime platform antithetical to these measures. So this outcome reinforces Grits' confidence that the election cannot be interpreted as a repudiation of Right-on-Crime-style conservative justice reform, even if federal policy is poised to become more regressive.

Meanwhile, voters legalized recreational use of marijuana in four more states, approved medical marijuana in three, with two more remaining too close to call as of this writing. So recreational pot is now or will soon be legal in seven states (plus the District of Columbia) representing more than one in five Americans, with more than half of states having approved medical marijuana regimens.

Among Texas races, Grits had been closely watching the District Attorney race in Nueces County where Mark Gonzalez, a zealous defense attorney with "Not Guilty" tattooed across his chest, eked out a reform-minded victory against a Republican opponent while Trump carried the county. Results in Houston - where Democrats won the DA and Sheriff races - were less remarkable and closer in line with partisan trends.Hillary Clinton carried Harris county overall, with Dems also picking up numerous judicial seats. Still, advocating for criminal-justice reform didn't hurt candidates in Texas races and in Nueces it arguably helped.

As expected, Rs swept all the statewide races in Texas, including at the Court of Criminal Appeals, where the addition of rookies Mary Lou Keel (who, incidentally, lost her home county) and Scott Walker could easily tip the balance of the court toward the Government Always Wins faction. At the Lege, Dems picked up five seats in the House, leaving them at what looks like a 94-55 disadvantage, pending the special election here in my own district to replace Dawnna Dukes.

Big picture: Grits found the election less alarming and more amusing than most media observers. While the national election was a degrading, circus-like spectacle, Texas' races were remarkably unremarkable. Not much changed here with the election of Donald Trump; it's the rest of the country which just became more like Texas.

How best to reduce county indigent defense spending

Like many others, the Victoria County Commissioners Court recently passed a resolution asking the Texas Legislature to begin paying indigent defense costs which historically have been the responsibility of counties. Right now, "Victoria County receives a formula-based reimbursement from Texas for indigent criminal legal defense costs that annually covers about 10 percent of Victoria County's costs," reported the Victoria Advocate.

County Judge Ben Zeller said he supported indigent defense but blamed the state for "passing the cost onto counties." That's a highly politicized interpretation. Historically, indigent defense in Texas has been solely a county responsibility and the state only began contributing a small portion following the passage of the Fair Defense Act in 2001. Now, Zeller and other county officials want to shift ever more of that expense to the state budget so they don't have to raise local taxes.

If the state were to take over county indigent defense, it would run north of nine figures. So, particularly in a tight budget year with many other competing priorities, that's not a likely scenario.

If the Lege did want to help counties with indigent defense costs - without assuming additional liabilities for which local government has historically been responsible - the smartest way to do it would be to reclassify certain low-level offenses to reduce indigent defense costs.

About 70k people per year are arrested statewide on marijuana charges, for example, and charged with a B misdemeanor. If the Lege would reduce that penalty category to a C misdemeanor, the maximum punishment would only be a fine and therefore counties would no longer have to pay indigent defense costs on those cases. Similarly, reducing low-level possession cases for heroin and cocaine from a state jail felony to a Class A misdemeanor would reduce indigent defense costs, since attorneys are paid less for misdemeanors than felonies.

Such policies would have the added benefit to taxpayers of reducing incarceration costs for Texas jails and prisons by locking up fewer low-risk, nonviolent offenders.

That's the best way for the Texas Legislature to provide relief to counties for local indigent defense costs without setting a precedent that they'll absorb those expenditures into the state budget

Debtors prisons, marijuana reform, and recipe for a shit sandwich

A few odds and ends while we all wait for this accursed election to end:

ACLUTX confronts debtors prisons
The ACLU of Texas has a new report out this week called "No Exit Texas: Modern Day Debtor's Prisons and the Poverty Trap," with the release timed to coincide with new litigation by the group against the city of Santa Fe (TX). See the complaint and coverage from AP.

Cop fired for shit-sandwich gag, seeks reinstatement
A San Antonio cop thought it was real funny to try to feed a homeless person a literal shit sandwich. He was fired, but the union is pushing for his reinstatement and predicts arbitration will overturn the chief's ruling. It wasn't his first offense. In June, the same guy "smeared tapioca pudding on a toilet in the women’s restroom of the downtown bike-patrol office — a gag that so disgusted a pregnant female officer she became ill." Clearly not the right personality type to be wearing a badge.

Austin DNA lab woes spur outsourcing
The closed Austin PD DNA lab will begin sending samples to a private contractor in Dallas. they'd been sending them to DPS but now say the state labs are taking too long, reported the Austin Statesman. Remarkably, "Even before the Austin lab closed, cases that required DNA analysis took, on average, about 500 days before they ended in conviction, acquittal, dismissal or a plea deal." MORE: From the Austin Monitor.

NYC authorizes online bail payments
As momentum grows to reform the money-bail system, New York City has implemented a change which would make the existing system function better: Allowing online bail payments by third parties. The reason for the change applies equally in Texas: "Since defendants do not have access to bank accounts or their wallets at arraignment, they must rely on a friend or family member to be in court and have cash on hand for bail." That fix by itself is insufficient, but it's an improvement. In recent years, New York City has simultaneously seen both major crime declines and a radical reduction in incarceration rates. One could find worse public safety models to follow.

Might pot legalization votes influence TX marijuana legislation?
Five more states appear set to legalize recreational use of marijuana in tomorrow's election, bringing the total to nine. In Texas, expect competing bills to be filed in the coming legislative session addressing this issue in competing ways. Some have suggested reducing penalty categories by one notch, shifting low-level pot possession to a Class C misdemeanor punishable only by a fine. Others want to create a new civil penalty and "decriminalize" pot possession entirely. The Texas Lyceum poll last year found almost half of TX voters support full-blown legalization like in Colorado, Washington, etc., and of those who opposed it, half supported "decriminalization." So IMO reducing pot penalties isn't particularly a political risk anymore. Voters clearly don't want their taxes wasted on pot prosecutions.

Houston PD pension mess could spur officer departures. Should we care?

Houston PD could see more officers retire soon as a result of the proposed pension deal Mayor Sylvester Turner negotiated with the unions, reported the Houston Chronicle last week. City leaders say "huge numbers of first responders are eligible to retire" immediately. In all, "37 percent of police officers and 25 percent of firefighters today are eligible to begin drawing pension checks." The fear is that ending super-generous, budget-busting benefits will spur more officers to leave sooner than later.

OTOH, doing nothing isn't an option. And the new recruits who replace aging officers will cost the pension fund (and city budget) less. Even so, it's unlikely that the deal cut will resolve the problem. The new deal slightly boosts employee contributions and lowers the expected rate of return from 8 percent to 7, but IMO that's still a wildly unrealistic number that I don't believe can be sustained for 30 years. If I'm right, the  pension fund won't be solvent in three decades, as promised.

The article expressed a particular worry that the department will lose staff at the commander level, but in Grits' view that should be the least of their concerns. Let's face it: Has the department really been run so well that they can't afford for top managers to be replaced?

Houston relies on defined benefit plans for officers which are far more generous than anything seen these days in the private sector. Under the new deal, many officers could retire when their age plus years of service equals 70 and then collect full benefits for the rest of their lives. Who else gets to retire at 50 with a guaranteed income for life? Certainly not most taxpayers in Houston footing the bills.

Bottom line, like so many US cities, politicians in Houston promised police and firefighters unions far more in benefits than taxpayers could afford, drastically underfunding pensions and assuming way-too-high rates of return on investment. Now, the politicians who made those promises are long gone and those financial chickens are coming home to roost. The transition from this unsustainable scenario will not come without disruption, and won't be limited to Houston, either.

Harris Jail overcrowded, again; bail reform desperately needed

The Texas Commission on Jail Standards this week approved having inmates sleep on plastic cots on the floor at the Harris County Jail, which already ships out hundreds of inmates to be housed in other counties. "The commission gave the county the OK to use 192 portable beds until May 31, 2017. Commission members also approved the county's request to extend its existing variance for 580 bunk beds." TCJS executive director Brandon Wood lamented the move, which comes as the county faces federal litigation over an allegedly unconstitutional bail system, saying it "created problems."

The kicker, though: Eighty percent of jail inmates are being detained pretrial and have yet to be convicted, according to the Houston Chronicle, meaning these variances and the purported jail crowding crisis spurring them are entirely a self-inflicted wound. Most of those folks could have been released pending trial. The bail reform measures being considered now should and could have happened a decade ago. If judges would begin using personal bonds for low-level offenses, particularly for misdemeanors and state jail felonies, they could solve the crowding problem in just a few weeks.

For Grits' part, not only do I consider the variances avoidable in light of tools available to reduce the Harris County Jail population, as long as Sheriff Hickman is running the jail I'm frankly unsure it will operate in a safe and secure manner. As soon as he entered office, he gutted oversight mechanisms designed to ferret out problems and a string of ugly incidents have occurred on his watch. Most recently, Lise Olsen reported on the severe beating of an inmate by jail employees outside of a health clinic. The Sheriff has videotape evidence he has refused to release to the public or the inmate's civil attorneys.

So Sheriff Hickman's instincts are to cover up bad deeds when they happen and eliminate personnel dedicated to looking for bad deeds in the first place. That's not a record which would inspire Grits to say, "Sure, go ahead, stack the inmates up like cordwood and let them sleep on the floor: We know you'd never let anything bad happen."

CCA: TX junk science writ can't challenge bad forensics at death-penalty sentencing

The Texas Court of Criminal Appeals today adopted a particularly ungenerous interpretation of Texas' so-called "junk science writ" (Code of Criminal Procedure 11.073) to say that habeas challenges may only confront junk science used in the guilt/innocence phase of a conviction, not in the sentencing phase.

As a practical matter, this mainly excludes use of the writ to challenge evidence in the sentencing phase of capital cases, where "special issues" supporting the death penalty must be proven "beyond a reasonable doubt" just like with the adjudication of guilt. For most other felonies, the judge or jury may choose from a range of sentences without facing additional layers of proof.

Judge Keller's majority opinion carried six members of the court. Judge Richardson authored a concurrence, joined by Newell and Hervey, to say this was a "harsh result" and arguing that the Lege should expand access to the writ to include the sentencing phase. Judge Alcala wrote another despair-tinged dissent, joined by Judges Meyers and Johnson.

Because after all, just because the state relied on junk science to secure a death sentence, why should that death sentence be overturned after that evidence is debunked? It's not like there's anything important at stake, right?

Having been involved with the early drafting of the statute in question back when I was Policy Director at the Innocence Project of Texas, Grits must admit that nobody on either side of the negotiations ever contemplated this issue and I'd never considered it before this case came up. (The capital folks weren't much involved with the original bill and, in truth, if they'd been its big promoters, it would have been unlikely to pass.) I can also say for certain that nobody involved in the negotiations was operating under the assumptions Judge Keller hypothesized based on the court's DNA testing jurisprudence. The subject simply wasn't ever considered.

Because, as a practical matter, the Lege expressed no "intent" one way or another, I suppose the CCA judges get to do what they want. And in general, what they want is to side with the state and wherever possible issue what Judge Richardson called a "harsh result."

Bottom line: This was a judgment call. They could have interpreted their writ authority more broadly, either on the textual grounds Judge Alcala proposed or just in the interest of justice (in the absence of legislative intent either way). So they could pick whatever outcome they wanted, and each of them did.

For my part, in retrospect, the reason this never occurred to me is that we were amending the habeas corpus statute, which generally challenges convictions from long ago for which all the inmates' direct appeals have been exhausted. And habeas can challenge both guilt/innocence and sentencing issues. That's why, though IANAL, the distinction championed by the CCA majority never occurred to me, nor to any of the numerous attorneys who vetted the bill during the process.

Though Judge Richardson called on the Legislature to change the law to allow use of the writ in the sentencing phase, in recent years, the court's demands for legislative action haven't carried much weight. (I plan a post in the near future outlining requests for legislation from several CCA dissents and concurrences.) OTOH, the Legislature in 2015 amended the junk-science writ statute to preempt meddling by the Government Always Wins faction of the court, so perhaps they'll do so again.

IN OTHER CCA NEWS:

The court granted Sonia Cacy's actual innocence writ, overturning her junk-science based arson conviction. Judge Yeary, joined by Presiding Judge Keller, was moved to write a concurrence declaring that, even though Cacy had met all the prongs of the court's "actual innocence" jurisprudence and deserved relief, he wouldn't personally use the term "actually innocent" because her innocence couldn't be demonstrably proven, all that could be shown was that all the state's alleged proof of her guilt was flawed and proved nothing. See coverage from the Dallas Morning News, the Austin Statesman, and Texas Monthly.

Just to say so, the state's compensation statute uses language from the court's "actual innocence" jurisprudence to trigger when exonerated inmates get compensation. So if Judges Yeary and Keller want to move away from that phrasing, the Lege will need to adjust the compensation statute so that it continues to pay the exonerees whom the legislature intended to get that money. This concurrence looks like the beginnings of a back-door method of thwarting legislative decisions about innocence compensation at some future date when the pair can convince three more judges to join their interpretation.

Judicial Council recommendations on bail reform finally out

The Texas Judicial Council's long-awaited recommendations on bail reform and reducing pretrial detention are finally out. See their 18-page report here. AP had a recent story highlighting the Judicial Council effort in the context of Harris County's bail reform efforts. Grits contributing writer Sandra Guerra Thompson opined on those efforts in an email:

county officials have begun to implement several new strategies to streamline cases, conduct better pretrial risk assessments, and provide counsel to people at bail hearings.  Some of these measures are funded under the county’s MacArthur grant.  These new processes will provide some relief to poor people who cannot afford to bail out.   However, people with the money to bail out will still be released a few hours after arrest, putting them in a far superior position to defend themselves against the pending charges and enabling them to keep their personal lives intact. Letting people bail out quickly—without doing a risk assessment—also allows dangerous people to get out of jail with lightning speed.  The county’s new improvements do help the poor slobs who get stuck in jail for lack of bail money, but all that these improvements really do is to ameliorate the unfairness of a broken system; they don’t fix the fundamental problems.

The Judicial Council's formal resolution recommended to the Texas Legislature that the law be changed to:

1. Require defendants arrested for jailable misdemeanors and felonies to be assessed using a validated pretrial risk assessment prior to appearance before a magistrate under Article 15.17, Code of Criminal Procedure; 

2. Amend the Texas Constitution bail provision and related bail statutes to provide for a presumption of pretrial release through personal bond, leaving discretion with judges to utilize all existing forms of bail; 

3. Amend the Texas Constitution and enact related statutes to provide that defendants posing a high flight risk and/or high risk to community safety may be held in jail without bail pending trial after certain findings are made by a magistrate and a detention hearing is held; 

4. Provide funding to ensure that pretrial supervision is available to defendants released on a pretrial release bond so that those defendants are adequately supervised; 

5. Provide funding to ensure that magistrates making pretrial release decisions are adequately trained on evidence-based pretrial decision-making and appropriate supervision levels; 

6. Ensure that data on pretrial release decisions is collected and maintained for further review; 

7. Expressly authorize the Court of Criminal Appeals to adopt any necessary rules to implement the provisions enacted by the Legislature pursuant to these recommendations; and 

8. Provide for a sufficient transition period to implement the provisions of these recommendations.

The report mentioned above elaborates on each recommendation. See also a summary of the recommendations offered to the House Criminal Jurisprudence Committee in September.

Predictably, the bail industry is already gearing up to fight the effort tooth and nail.

Grits will definitely have more to say on this later. And perhaps contributing writers Sandy Thompson or Becky Bernhardt, both of whom have tracked these processes closely, will find time to parse the good, the dubious, and the inadequate from what's been proposed.

Cop talk: Eight hours of verbal de-escalation training

I figured I’d be the only one in the class who doesn’t have to carry a gun – and potentially use it – to do my job.

Almost everyone taking a recent eight-hour verbal de-escalation training class in San Antonio was a commissioned peace officer. Most of the pupils were men; a handful were in plainclothes, about 15 donning beige Texas Department of Public Safety uniforms and roughly 10 more wearing other law enforcement uniforms or department shirts.


I took a seat near the beverage station and a heaping tray of donuts, next to a couple of administrative assistants who said they’d been “voluntold” to attend.

I was there to learn firsthand what law enforcement learn about de-escalation. The topic comes up often in my reporting for Point of Impact, a yearlong series investigating officer-involved shootings of unarmed people in Texas.

It was easy enough to sign up for the class online, but in a world where the media has been blamed for inciting violence against law enforcement and is often criticized for its coverage of police shootings, I expected some might be displeased I was there.

I’d hoped to be inconspicuous and left my home in Austin two hours early. San Antonio’s traffic crushed that hope, exposing the belated entrance of the lone journalist into a room full of officers.

Bob Christy, a regional training director for the Texas Police Association, trudged over with the attendance list and a course packet. I signed in next to my name and affiliation – UT Austin, where I’m a graduate student – and tried to disappear into my desk chair.

Despite having the least amount of experience with the use-of-force continuum, I found myself immediately more engaged than many of my classmates. The instructor even had to ask one man to put away his cellphone for a little bit.

During the first of many breaks – officers can only tolerate an hour of sitting still at a time, I learned – the instructor, J. Mark Warren, told me it’s common for officers to discount the importance of the course at the start, but ensured their enthusiasm would grow.

I introduced myself as a journalist to Warren, explaining that I’d paid the $70 non-TPA-member fee and then braced for the expected request to leave.

But he was happy to have me there. I took a deep breath and settled in to learn how law enforcement can use words and body language to diffuse a situation. A 19-year veteran of DPS’ training academy, Warren spent more than a dozen years teaching a communications course called “Verbal Judo.”

Everything a police officer does involves communication, and Warren is a die-hard believer that good policing requires good communication skills.

Repeatedly throughout the day, Warren reiterated that the course material wasn’t applicable in violent encounters - "You know how to deal with those," he said. Instead, the methods apply to the 90 percent of contacts who aren't violent.

We learned how to better communicate with people who are compliant but might "fail the attitude test," which Warren said legally does not justify escalation. We also learned how different types of people react to stressful situations, and what might work best in interactions with each personality.

Warren taught us tips to identify a person's ego state - parent, adult or child – so we could best communicate with them, and we practiced those skills in pairs. Ideal is the adult state, the only frame of mind in which individuals are capable of making independent, unbiased decisions. Parent ego states are authoritarian and lead to conflict and child states are selfish and short-sighted.

During one exercise, Warren instructed students to face another student and stand casually with our hands on our hips. "Easy," I thought, looking around only to realize it’s impossible for a trooper wearing his duty belt to look casual with one hand on his hip holster.

The point was the importance of body language: “Even if you’re just trying to be casual, you’re going to come across as defensive,” Warren later explained.

Sure enough, my fellow classmates did become engaged, interested and took notes, even when Warren mentioned the Police Executive Research Forum, whose recommendations on de-escalation have been met with mixed reviews from some in law enforcement.

One point of contention among the law enforcement community is with a staple of PERF’s 30 guiding principles on use of force. The agency would like to retire the “21-foot rule,” a practice that permits officers to shoot someone armed with an edged weapon who gets too close, because PERF says the rule sometimes wrongly justifies shootings. Warren disagrees.

But he supports another PERF guideline – that de-escalation training should be a core theme of an agency's training program. At least at DPS, the methods are now a core theme of one day in the classroom.

That wasn’t the case before July 2015, when a DPS trooper stopped Sandra Bland for a traffic violation. She was arrested and died in a Waller County jail cell three days later. The trooper responsible was indicted and fired from DPS, and Bland’s relatives sued him and others for her death.

When the case settled for $1.9 million in September, it was reported that de-escalation would now be required for all troopers in the field. DPS said at the time that the class was already required.

Warren’s timeline backs that up: He was tapped by TPA to teach the course starting last December, and has since trained about 700 officers, most of whom were DPS troopers and leadership. At my training, a few plainclothes officers were DPS brass, Warren said, and one was another jurisdiction’s chief.

As someone who lacks the rest of the training that Texas law enforcement receives, I felt unworthy of the completion certificate. It’s impossible to master, after one day, how to verbally communicate with a myriad of people who react in a variety of ways under stress.

DPS has also said that new officers will start to receive verbal de-escalation training in the academy. But aren’t the new officers too busy cramming for the state exam to study verbal communication, which isn’t tested?

Maybe at this point, the emphasis on verbal de-escalation is more of a symbolic first step.

“This is only the beginning,” Warren said. “History and current events being what they are, there’s never been a value on verbal de-escalation like there is now.”