Thursday, March 23, 2017

Whining counties, and defense lawyers, and prosecutors ...

While work and family obligations have intervened to disrupt regularly scheduled blogging, here are a few odds and ends which merit Grits' readers' attention.

Kerry Max Cook: Lawyer brown nosing Smith County DA blew deal
Michael Hall explores Kerry Max Cook's reasons for rejecting a deal which would have finally exonerated him of capital murder after nearly forty years, and why the Court of Criminal Appeals may overturn his conviction anyway. Great stuff as always from Mr. Hall. What a mess.

Nobody bought defense bar arguments vs. capital appellate defender
The push to create an appellate public defender for direct appeals in capital cases took an important step forward this week, with HB 1676 by James White (R-Woodville) approved unanimously without amendment out of the House Criminal Jurisprudence Committee. The SA Express News concurrently published an editorial decrying the small pool of private attorneys available for those cases. Readers may recall that, before the hearing, in an interview with Grits on the topic, the Texas Defender Service's Amanda Marzullo showed how woefully deficient most representation of indigent defendants in capital cases has been.

The hearing was a bit of a zoo. The private criminal defense bar woefully misread the room, showing up to push for a flawed "managed assigned counsel" system so their members wouldn't lose business. But since the principle reasons suggested for creating the system were that private attorneys' work product on capital direct appeals empirically was poor, unreliable, and often cut and pasted without any specific analysis related to the instant case, nobody on the committee seemed to be in a mood to oblige complaints that this work (maybe 6-8 cases a year) might instead go to a small, three person public defender office that would cost less for a superior product.

GOP alternative approach to drug abuse emerging
Notably, a recent article in National Review touts drug courts and community corrections as the correct, conservative path toward confronting opiod abuse. Here in Texas, HB 2398 (King) would take precisely that path, reducing penalties for user-level possession cases and using the savings in incarceration costs to pay for drug treatment and community supervision at the local level. There is emerging an alternative GOP approach to confronting drug abuse - pioneered by our friends in the Right on Crime crowd - in a way that supplies a path to recovery rather than punishing every soul who has succumbed to addiction with a felony conviction.

Reining in asset forfeiture abuses
It's Asset Forfeiture Reform Day in a House Criminal Jurisprudence subcommittee next Wednesday. This could be one of the more contentious debates of the session. A bipartisan reform coalition comes loaded for bear while one may expect a parade of police and prosecutors wailing and moaning at the thought of losing their favorite revenue stream/slush fund. (Whining is a theme of this roundup, one notices.) Grab popcorn and watch it online if you can't come: Should be a hoot.

Raise the Age
TPPF's Marc Levin makes the conservative case for Texas' raise-the-age legislation. From your mouth to John Whitmire's ear, my friend.

A disingenuous debate over unfunded mandates
Counties are using indigent defense as an example of "unfunded mandates" from state government for which they must pay. However, most of the increased caseloads experienced since the turn of the century stemmed from local decisions to prosecute less and less serious cases, even as crime fell. I'm open to debating the level of state contribution to indigent defense funding on its own merits, but Grits dislikes this phony baloney "unfunded mandate" debate. The FAR bigger unfunded mandate comes when DAs seek or judges order extremely long sentences for which state government must foot the bill. Note to counties: How about this deal? What if the state pays for indigent defense, and counties pay the cost to incarcerate every individual whom they convict and send to prison? It'll be an even swap of funding responsibilities. Why wouldn't they? Because the unfunded mandate in the state's direction is in reality much, much greater. Framed in that light, i.e., in light of reality, complaints of "unfunded mandates" from counties to me come off as disingenuous and whiny.

Texas not only state denying prosecutors access to police misconduct records
Texas is not the only state where records about police misconduct are concealed from prosecutors who have an obligation to disclose them to the defense. California is struggling with the same conundrum. Here, passage of the Michael Morton Act placed the issue in stark relief at cities which opted into the state civil service code (~70), an issue first raised publicly by Court of Criminal Appeals Judge Barbara Hervey. This situation spurred state Sen. Juan "Chuy" Hinojosa to file SB 783 to open those files up as is the case at hundreds of other law enforcement agencies around the state. For more background, see here.


Lee said...

Lawyers have ruined my country.

Anonymous said...

Here's an even better idea, how about counties take back over punishment like they did back in the 19th Century when we still had public hangings on the courthouse lawn, vigilante squads, penal farms and there was no federal oversight of the correctional systems in the various states. That would save a lot of money! We could scale TDC back down to a manageable size and budget as it was pre-Ruiz. Local jails could have their own policies as it relates to inmate capacity, medical care, air conditioning, etc... What a great idea!

Wolf said...

How about requiring counties to share the cost of incarceration for those they send to state jails and prisons? That would reign in the desire for excessive punishment while implementing the conservative mantra that "prisons are for people we're afraid of, not the ones we're mad at. A Right on Crime poll already verifies that the majority of Texans want more emphasis on rehabilitation and community supervision.

Joorie Doodie said...

RE: Kerry Max Cook

Grits, that article in Texas Monthly you linked to is probably the best summary yet of the Kerry Max Cook saga. I'm apparently one of the few so-called "conservative Republicans" in Smith County who are truly outraged by this and other egregious cases of prosecutorial and judicial misconduct here in Smith County. I like the explanations given for this pattern of behavior given by one journalist cited in the article...

"And because of Tyler’s tight-knit legal community, in which many of the players have a connection to Cook’s case, there are few lawyers without a vested interest in its outcome. 'That courthouse is one big family,' noted McCloskey, who has been traveling to Tyler for 26 years now. 'They live to protect each other and their reputations and standing in the community. It’s important to maintain the reputation of the DA’s office and not impugn one’s forebears.'”

And that of a high-raking prosecutor from Dallas County, which apparently has a reasonably intact criminal justice system...

“'It’s easier to investigate a suspicious conviction if it happened under a different administration,' she said. 'It’s really difficult if it was you. In Smith County, everyone is connected—Bingham is an extension of Skeen. It takes courage and integrity to do the right thing, and Smith County hasn’t been known for that. Smith County is known for being a locomotive running over everybody.' In the past forty years, there has been 1 exoneration in Smith County, compared to 52 in Dallas County. And it remains a tough place: in 2015, only two defendants were found 'not guilty' in the Smith County district courts, which had a 94 percent conviction rate, compared to a statewide average of 83 percent."

Why decent people here in Smith County--Republicans and Democrats--put up with this is beyond me. Bingham's budget has been increased by 49% in the past decade, and we incarcerate our citizens at about twice the state average. Our county commissioners recently borrowed $35 Million to add 385 beds to the jail. Yet recent FBI statistics show that Tyler is the tenth most dangerous city in Texas, right below Dallas. So obviously all this spending and mass incarceration is not really working is it?

The sheeple of Smith County had the opportunity to get rid of Skeen in 2010 and to get rid of Bingham in 2014. But no--I guess they like things just the way they are. Fortunately Skeen plans to retire soon and Bingham says he won't run again. We can only hope and pray that Bingham does not get elected or appointed to the 241st and that another Bingham-Skeen clone does not get elected or appointed to be the DA.

Anonymous said...

TPPF may be making a case for raise the age, but it damned sure ain't the conservative case. I'm convinced Levin and his crew have yet to meet the criminal they didn't want to coddle. A liberal by any other name….

Anonymous said...

@ Joonie Doodie-

The high ranking prosecutor from Dallas County who had the gall to boast(?) about 52 exonerations, failed to note that not a single Prosecutor who was involved with a wrongful conviction in Dallas County (typically withholding Brady material) was reprimanded or penalized for violations of the law. At least 15 of those 52 exonerations were attributed to Official Misconduct (which is suspiciously low relative to the National average of 25%. That is, the Dallas CIU specifically avoided those cases to review where Official Misconduct probably played an important part.) As an election promise, Craig Watkins stated he would prosecute those prosecutors involved with Official Misconduct -- yet nothing. There was no action taken to prevent re-occurrence. There apparently was no downside to Official Misconduct. There are still unethical attorneys protecting other unethical attorneys.

The people of Dallas County voted for a promise which wasn't delivered. The votes of the public/sheeple can only go so far.

This is not just a Smith County problem, but a State of Texas problem -- solvable only by ethical law abiding attorneys.

Anonymous said...

Did Kerry Max Cook ever testify at any of his trials or any of his post-convicition proceedings?

Unknown said...

Or maybe the state foots the bill for inmates who are violent or pose a threat like identity theft. But counties contribute to the cost for incarcerating nonviolent offenders? I'd hate for a poor county to be forced to go easy on someone dangerous for financial reasons. But locking up victimless criminals needs to be done with accountability instead of just as part of some losing drug war crusade.

Wolf said...

Good point about poor counties. Regarding victimless's time to revisit the issue of what should actually be a crime. I like the first paragraph of a book by two noted criminologists written back in 1969..."The Honest Politician's Guide to Crime Control" by Norval Morris and Gordon Hawkins....."The first principle of our cure for crime is this; we must strip off the moralistic excrescences on our criminal justice system so that it may concentrate on the essential. The prime function of the criminal law is to protect our persons and our property; these purposes are now engulfed in a mass of other, distracting, inefficiently performed, legislative duties. When the criminal law invades the spheres of private morality and social welfare, it exceeds its proper limits at the cost of neglecting its primary tasks. This unwarranted extension is expensive, ineffective, and criminogenic."
" For the criminal law at least, man has an inalienable right to go to hell in his own fashion, provided he does not directly injure the person or property of another along the way."

Joorie Doodie said...

@07:27: I agree that this type of prosecutorial misconduct is a statewide problem. But how many other counties in Texas--or in the U.S. for that matter--have had so many news articles, books and movies written about their draconian legal systems? Hell, Smith County is infamous world-wide and even empty-headed celebrities have jumped on the bandwagon to condemn us!

Do you know who some of Bingham's and Skeen's biggest supporters are? Defense attorneys. That's right--those who supposedly stand up and fight for justice for their clients! Why? Because the system here is the side their bread is buttered on. Get arrested for just about anything here and if you want to stay out of prison you have to turn over your life savings to the likes of Buck Files or one of the former prosecutors now working the "other side" of the system.

It's a big money-making racket for attorneys, many of whom would be scrapping to do $49 traffic-ticket fixing elsewhere in the country.

Bingham has announced that he will not run for another term. I'd consider that good news, except his First Assistant, April Sikes is gunning for his office. Now one of his other minions has put his hat in the ring. It will be interesting for sure--probably a fight to the death with all the rumors floating around and a general dissatisfaction with local politics. But in the end, will anything change?

Anonymous said...

Tyler, TX. Is organized crime.