Sunday, July 09, 2017

Roundup: Bail reform all about the judges, and other stories

Here are a few odds and ends of which Grits readers should be aware:

5th Circuit: Government can't be held accountable in false convictions cases
The US 5th Circuit Court of Appeals really doesn't want the government held accountable for false convictions. Grits mentioned the other day a case where they said a plea by an innocent man meant he couldn't sue for damages. (An alert reader pointed me to this academic article on the underlying topic.) But they've also recently ruled that even "grossly negligent" forensic scientists can't be held accountable in a wrongful conviction case.

Bail reform still all about the judges
Federal District Judge Lee Rosenthal sounds unimpressed with Harris County's proposed bail fixes, pointing out that if the judges themselves don't change their practices, all will be for naught. Grits has been ringing this bell for many years.

State jail slated for closure subsidized local utility bills
Here's a good example why it's hard to close prison units, even when prison populations go down. It turns out, the city of Bartlett received one third of its city revenue from the Bartlett State Jail, mainly in utility bills which will now go up for all other consumers. This will be true in lots of rural jurisdictions. Prisons are water hogs and are often the largest customer for rural water producers. That's no good reason not to close them, though.

Balko on new specialty courts for Texas cops with PTSD, mental health problems
At the Washington Post, Radley Balko has a good discussion of new Texas legislation creating a specialty court for police officers who commit crimes.  Just a thought: If there are so many cops walking around with PTSD or serious mental illnesses, shouldn't the response be to require departments to identify them and provide support beforehand than just to wait till something bad happens and then give them leniency through some special cop court. What a wrong-headed proposal. Grits doubts many counties will crate the new courts, which are a) optional and b) unfunded.

Rural counties driving overincarceration
Though this article doesn't mention Texas, the problem of rural overincarceration - at the county jail level and also the rate at which counties send people to prison. Most of the incarceration reductions which have allowed Texas to close eight prisons in recent years are coming from the ten or so most populous counties, all of which have witnessed substantial crime reductions over the last decade.

Maybe prohibition is the wrong tool for the job
Treating opiod producers the way plaintiffs lawyers treated Big Tobacco is the best way to combat the opiod epidemic. Ramping up the war on drugs has not and will not worked. As Mark Osler wrote in Forbes recently, the enemy in the drug war is a market, not a group of people. And market forces trump legal abstractions every day of the week and twice on Sunday.

False charges of assaulting public servant often mask misconduct
Grits the other day mentioned two examples of people beaten by law enforcement who were charged with assaulting a police officer and pled guilty, only to be later found actually innocent. I could have added the case of Jerome Bartee, who was beaten by three jailers in the Harris County Jail then charged with assaulting a public servant, a third-degree felony. Those charges were dropped four days after his defense lawyer received a copy of a video recording the incident. Now imagine if a) there were no video and b) charges against Mr. Bartee were a second degree felony under the new law, meaning he'd face up to 20 years in prison. Lots of people would plead guilty to avoid that risk, especially if exculpatory evidence is suppressed or simply unavailable. When your correspondent was Policy Director for the Innocence Project of Texas, I met plenty of people who pled guilty to avoid a longer sentence and were later proven actually innocent. This is how false convictions occur, people.


Anonymous said...

RE: 5th Circuit: Government can't be held accountable in false convictions cases

Sooo, forensic analysts such as Annie Dookhan or Fred Zain shouldn't worry about going to jail or being sued?

john said...

IF you've rung the jail-for-judges bell for years, you should see by now being nice will never work.
The judges MUST go to Guantanamo, THEN close it down--and let them eat each other.
They have no oversight, in that judges and the union-guild BAR run the State. The half-vast majority of those in power ARE lawyers.
Look how the highest bidders (today, big pharma) are allowed to run amok--and it's growing to world-wide, with the bad drugs and especially vaccines--regardless of damage. OF COURSE those in power insist that money-maker be held unaccountable.
OF COURSE those in power will stall your case while they sit on overtime. OF COURSE they will select only the parts of the written law expedient to THEM> YOU have no lawyer; YOU have no "representation."

Note Captcha was always crap, but it keeps getting longer, and therefore, much worse. What a waste of our time.

Anonymous said...

Dear John...lay off the crack pipe ramble and don't make any sense whatsoever. Are you that same guy that posted a week or so ago that I said sounded like a conspiracy theorist that lives in his mom's basement??

Anonymous said...

Appreciated Belko's article about Texas' potential cop courts (a really bad idea in my opinion). A justification comes from Geren, "it allows them to get the help that they need so they can get back in society rather than send them through the criminal system." Belko makes the point himself - why is that opportunity extended to police and not to everyone? And where's the larger conversation around police who get to the point of illegal activity to begin with? If any profession should be rigorously self-monitoring, it's first responders.

Anonymous said...

The 5th circuit actions are very troubling. The general media needs to be made aware of this development because the Supreme Court must step in.

Brady violations came about as an application of the 14th Amendment due process clause. Following Holohan, the court said "if a state has contrived a conviction through the pretense of a trial which, in truth, is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation."

That's the basic principle. The question in Brady was whether withheld exculpatory evidence was material to the punishment he received, i.e., life or death. They ruled it was. The result was prosecutors everywhere have to disclose exculpatory information, i.e. Brady rights.

In Ruiz, the court simply said that impeachment evidence (information that would reduce the credibility of state's witnesses), was an inherently trial-based right. You can't throw out a guilty plea based on failure to disclose impeachment evidence because the trial never occurred and no witnesses were called that could be impeached. So since then many circuit courts have dealt with the question of whether exculpatory evidence can be treated as impeachment evidence in cases where the defendant is trying to undo their guilty plea.

The question is whether exculpatory evidence disclosure is required both in a trial (brady) and before a plea (ruiz). The answer goes back to Holohan, "if a state has contrived a conviction through..pretense...[it is]...inconsistent with the rudimentary demands of justice." But that's what a plea bargain is when a prosecutor withholds exculpatory evidence. It's a pretense or deception because the prosecutor has evidence the accused is innocent. The standard is baked in--we're not talking about 50/50 evidence that maybe a jury would believe, we're talking about evidence that would likely change the outcome of a trial. So we're talking about withholding something substantial. It is a deception and has no place in law.

What the 5th circuit is trying to do is say that without a trial, exculpatory information is like impeachment information. But it's not. They are very different. One casts doubt on what a witness may say in trial. The other casts doubt on the whole enterprise of accusing the accused in the first place. Prosecutors who believe their exculpatory information would wreck their trial chances, will only try to bargain more aggressively--threaten an even greater sentence unless the plea is accepted.

It's sinister.

Go back to the 14th Amendment. It doesn't spell out a trial right (as Ruiz does with impeachment evidence). It says "nor shall any state deprive any person of life, liberty, or property, without due process of law." A defendant threatened with a long prison sentence, while the prosecutor holds exculpatory evidence can't possibly be consistent with the 14th Amendment. Impeachment evidence in a plea bargain scenario is about the future--what will a witness who could be impeached actually say when on the bench? We don't know. Might tell the truth. Might reveal themselves why they are impeachable. But exculpatory evidence's full significance is revealed before trial.

If Brady applies to exculpatory evidence in guilty plea scenarios, then the 5th circuit just blew the opportunity to uphold the 14th Amendment due process clause. It is very very troubling. You gotta go through some acute intellectual gymnastics to pull it off.

dfisher said...

I read your story on the Federal 5th Court of Appeals opinion on forensic experts qualified immunity, so determine what they meant, I did a little research.

The Mississippi Coroner Steve Hayne is an elected official and as part of his authority is he can hire forensic investigators and medical examiners (physicians) to investigate deaths in the public interest.

It is long settled law that experts who perform duties under the direction of appointed or elected official have qualifies immunity for his or her action, if they believe their action were legally correct.

The problem here is the plaintiff's attorney(s) did not read or understand the Mississippi Coroner's statute, so sued the wrong person first. The U.S. Supreme Court has ruled several years ago, even a Criminal District Attorney's sovereign immunity can be lifted and sued for monetary damages. All the defendant has to show is the DA, as part of a government policy has a pattern of violating defendant's civil rights the same way more that one time.(simplistic) Coroners and medical examiners are government officials and as such are ripe for this type of suit.

I suggest the plaintiff's attorneys review the supreme court ruling mentioned here and sue the proper authority, provided the statute of limitations hasn't run.

Anonymous said...


"The U.S. Supreme Court has ruled several years ago, even a Criminal District Attorney's sovereign immunity can be lifted and sued for monetary damages."

For edification, would you please cite this case(s)?