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.