Reasonably Suspicious: Listen to the podcast, join us for our Launch Party!

After several months of working out the kinks in a soft launch, Just Liberty's Reasonably Suspicious podcast now is up and running on numerous platforms - iTunes, Google Play, YouTube, SoundCloud, etc..  Please subscribe and give it a try! I'm proud of the results so far, and we're improving every time.

We've now got a fresh new logo created by the legendary Guy Juke, plus original music by producer/guitar virtuoso Gabe Rhodes and some of the best musicians in Texas. I couldn't ask for a smarter, more able co-host than Mandy Marzullo from the Texas Defender Service. The excuses for failure are dwindling! :)

Just Liberty will host a podcast launch party in Austin on Wednesday, September 20th to celebrate the new project. Please join us if you can! See our Facebook event page for details.

You can listen to the podcast here, or as usual find a transcript with links to underlying documents and news stories below the jump.



Here are the topics covered in the September 2017 episode:

Top Stories

• Police-union pension crisis predicted by Ron DeLord
• Prosecutors ill-advised to withhold witness statements
• Big implications for Harris County bail-reform litigation

Forensic Follies

• Junk Science Writs and the Goldilocks Problem
• First DNA-mixture "black box" broken open

Last Hurrah (quick takes)

Transcript: Reasonably Suspicious podcast, Ep. 4, September 2017, featuring Scott Henson and Amanda Marzullo.

Amanda: Hi, this is Amanda Marzullo. Scott, a new study found that women are happier in relationships if they're more attractive than their partner. What do you think?

Scott: That's excellent news for the missus, and to all the gals from back in the day who had a chance at this ugly mug, eat your hearts out! You know, if I had a dollar for every woman who found me unattractive, eventually some of those women would have found me attractive.

Amanda: Do you really think that would be enough money?

Scott: Honestly, probably not. It's why we're doing a podcast and not a YouTube channel. I was blessed with a face made for radio.

Hello boys and girls, and welcome to the September 2017 edition of the Reasonably Suspicious podcast covering Texas criminal-justice politics and policy. I'm Scott Henson, Policy Director at Just Liberty, here today with our good friend, Amanda Marzullo, whose day job is Executive Director at the Texas Defender Service. Mandy, what are you looking forward to on the podcast today?

Amanda: I'm looking forward to talking about discovery. I can talk about that all day, all the time. First up though, the Dallas and Houston Police Departments are experiencing large departures after the Texas legislature cut their lucrative pension deals. The Houston PD has lost somewhere in the neighborhood of 200 veteran officers, and the Dallas Police Department has lost somewhere in the neighborhood of 600. Police officials in both cities suggest that these departures could pose a public safety threat.

So Scott, what's going on here and should the public worry?

Scott: Well, I don't think in either case the public should just start worrying or panicking yet, even though that's the message they're getting from some of the police union officials and even some of the media types.

First, the problem is much, much more acute in Dallas than it is in Houston. In Dallas, where they're 600 down, that's actually down from their peak which was 10 years ago. And so, the other thing that's happened over 10 years is overall, crime has continued to drop over most of that period. There's been a slight uptake in violent crime in Dallas, but property crime continued to decline, and that's after a pretty steep decline over a decade. And so it's hard to say, okay this is causing any specific increase because they were also down a bunch of officers before then. It is the case that Dallas is losing a bunch of officers to other cities, and they had relied on these very, very generous pension benefits to make up for low wages compared to the other departments around them.

So that's part of what was happening is the pension had been the big draw.

The other thing that happened in Dallas that's unique and very, very different from Houston is that they made these unbelievably unwise pension investments. They invested in all these luxury real estate projects all over the country and really the world. All the places you would think they would want to go visit on vacation, so they would get apartments in Hawaii so they could go out and monitor their investment. Well, who wouldn't want to do that? And then, after the real estate bust, all their bad investments were exposed, and the true cost of these unbelievably high benefits became more apparent.

Amanda: Okay, the pension fund in Dallas, it sounds like wasn't operating with the market, if that makes sense. Like, it was underperforming, but wasn't there also an issue with the savings accounts where people could basically put money in an account and get a rate of interest that was much higher than they would get anywhere?

Scott: That's exactly right. It's really kind of an amazing situation. These were called DROP accounts. I forget what DROP stands for. It was an acronym for something, but in essence, they were savings accounts that gave police officers the ability to get much, much higher interest rates than anywhere else they could remotely turn for an investment, to the point where officers were taking out second mortgages on their home and putting the money in these DROP accounts because the interest rate that they were paying was so much lower than the interest they were getting on the savings account.

And what's really going on here, interestingly enough, was described, almost predicted to a T in a book that came out just this spring by one of the Texas Police Union's movements most important leaders, Ron DeLord. Ron DeLord was the executive director at the Combined Law Enforcement Association of Texas for many years. That's the state's largest, or one of the two largest collaborations of police unions. It's an association with many local police unions under it.

And about 20 years ago, he and two other gentlemen wrote a book that became sort of the bible for police union organizing. Interestingly enough, it was all based on the philosophies of Saul Alinsky and all this very radical in your face union aggressive tactics that is really what he was suggesting.

Well, now, he's co-written a book with another former union official named Ron York called Law Enforcement Police Unions in the Future: Educating Police Management and Unions about the Challenges Ahead, and this came out earlier this year in 2017. Just to give you a flavor of what he's talking about, he opens with, actually, an homage to Robert Earl Keen, the great Texas singer-songwriter. "A message to police unions," it says: "The road does not go on forever, and the party eventually ends." So that's literally his opening salvo for this book, and his argument is, essentially, and I'm going to just quote here for a moment. "The pillars that supported first responders receiving benefits not available in the private sector, Cadillac health insurance and work and in retirement, and a defined benefit pension that allowed for a guaranteed pension for life had been eroding for decades," and "without these underlying pillars, any sustained attack has a good chance to succeed." And in truth, that's really what we saw this legislative session when we saw retrenchment in police pension benefits.

He goes on to explain why he thinks this happened. "The truth is, the great recession of 2008 merely pulled the curtain back exposing the truth cost of public sector wages, benefits, insurance and pensions. This exposure caused a negative feeding frenzy against public employees by the media."

And he goes on to say remarkably, again, quoting, "First responders went from the heroes of 911 to welfare queens in less than a decade."

Amanda: Yeah, we haven't necessarily gotten to "welfare queen," but we are looking at a situation where police officers are being compensated in a manner that the cities can't sustain.

Scott: And that's far, far greater than the average tax payer faces. For example, almost every tax payer has had their defined benefit pension plan, if they ever had one, erased, and they now have a 401K if they are lucky. Well, these police union [retirees] get payouts with cost of living increases for life. That's unheard of anymore. No one in the private sector, the average taxpayers are simply not getting that anymore.

One of the themes of this book was that police union leaders have to basically face irrational demands from their unions to maintain these wages and benefits, even in the face of no one else in society having similar benefits. So again to quote from DeLord's book, "Police union officials often have to listen to rants from officers protesting any change in their wages, benefits, insurance, leave time or pensions. The officers create their own reality and refuse to accept anything less. Many officers appear to be disconnected from the economic pain and stress faced by tax payers in the private sector."

And so, Ron DeLord was warning them in his book that there was going to be a comeuppance for this sort of behavior and now there has been.

Amanda: We'll look forward to watching this story as it unfolds.

Scott: Next up, Texas' Fifth Court of Appeals out of Dallas ruled that a prosecutor who interviewed a witness and concealed the statement from the defense violated a discover order based on the Michael Morton Act. The prosecutor tried to claim that the witness statement was attorney work product, but the court ruled that she was engaging in trial by ambush when she withheld the statement, and that the interview should have been turned over to the defense. The Fifth Texas Court of Appeals ruled that the witness statements were not the prosecutors "thoughts or impressions," but rather "underlying factual information" that should have been turned over. The Texas District and County Attorneys Association recommended, based on this case, that in similar future situations, prosecutors should, "notify the defense that they had interviewed witnesses, but are withholding those statements."

So Mandy, is that good advice?

Amanda: No, not in this situation. I think that this ruling is very clear that statements by a witness, even if they're disclosed directly to a district attorney or an assistant district attorney are still statements for purposes of discovery and that they don't fall within the work product doctrine.

So, what might be a better compromise is if a prosecutor believes that a portion of their notes from the interview ... For example, if they're writing down their impressions of the witness' credibility, that you might want to redact those sections of your notes, but the rest of it, the portions of your notes that are documenting the factual information that's being reported need to be disclosed to the defense, and I'd say you probably would also want to notify they court that you're invoking this privilege.

Scott: Well that was a very measured assessment. Part of the reason that I pointed this out and wanted to talk about this is that I know prosecutors overstating how much discovery they should be allowed to withhold sort of pushes your Berserker Button, and sets you off, so I thought I would get more of a rise out of you [laughter/crosstalk].

Amanda: I'm trying to be restrained these days.

Scott: Well, that was very restrained. You did very well.

Amanda: (laughing) Yeah, well, it was also a limited question, right?

Scott: Well to me, what I was struck by, and the reason that I pointed it out to you in the first place, it was so odd that the ruling was so very specific that the statements, the actual witness statements themselves, the things between the quote marks or the things you said the witness told me x or an oral statement where the witness had said something to the prosecutor, that you have to disclose that. So then to say go ahead and withhold it and ask again for basically the same ruling struck me as weird. And that's why I thought it might set you off a little more than it did.

Amanda: Well I think that part of the thing about the decision that's a little odd is that they really ... I mean, it's not odd. The court tried to avoid engaging in any kind of statutory analysis in the decision so they really focused on the discovery order that was issued in this case and said the prosecutor was willfully violating the discovery order rather than going into the more general responsibilities under the act. But the big meat of it that's important for prosecutors is that that this is another decision in a long line of decisions that says that you can't have an end run around your disclosure requirements simply because you're the person interviewing a witness, that those are still statements for purposes of discovery, and it's not work product.

Scott: Got it.

Amanda: Moving on. In our final top story, the Federal Fifth Circuit Court of Appeals on October 2nd will hear oral arguments related to an order by federal district Judge Lee Rosenthal who declared Harris County's pay for release money bail system unconstitutional.

So Scott, what's at stake in this litigation?

Scott: Really there's an incredible amount at stake on many levels here, and I know the bail bond industry think that their economic future is the most important thing that is in jeopardy, but really, this will be one of the biggest changes you could imagine for Harris County's local system, and that's one of the largest court systems in the country, so it's a really big deal.

As I think about this case, I keep thinking that there was a prosecutor on the District and County Attorney Association user forum who was worrying about the question of well, what's going to happen to all these people who we arrest for misdemeanors and take them to jail, and they plea out for time served. Are they going to be willing to have a plea if they're already out of jail or are we going to have to take them all the way to trial? Are people going to be more likely to press their rights if we don't have that leverage? And he worried, well what's going to happen to court dockets when that happens?

That's a legitimate question because, right now, they've been suppressing their court dockets and maximizing the plea rate by using the coercive pressure of jail on behalf of the prosecutors to say, "Okay, you can stay in jail and fight for your rights, and we'll go to trial in six months, or you can sign right here and get out for time served," and that's going to be a huge difference. I'm reminded of Alice in Wonderland where the Queen of Hearts said, "No, no, no. Verdict first. Trial later." Punishment first. Verdict later. That's what we're doing here. We're punishing first, and just, if you get a verdict great, and if you get a dismissal, "oh sorry that you were incarcerated, but you get to go home now," and that's the system. [Ed note: Correct quote was, "Sentence first - verdict afterwards."]

Well, if most people for misdemeanors start to get out, that's going to change that dynamic significantly.

Also I should mention, toward the end of my time at the Innocence Project of Texas, I started thinking and coming across more and more examples of how this coercive pressure of pretrial incarceration would put pressure on people to accept plea bargains for things they didn't actually do.

Amanda: I think that there have been some studies that show that, sort of the "wrongful plea rate," you're going to see it rise as the stakes are lower. So if it's just getting out on time served, usually, I think, sadly, a lot of misdemeanor defendants are also unaware and un-counseled of the collateral consequences of a conviction. So, they might think like "okay, there's nothing more that will be done to me. This won't carry forward," so I think you're right that we're going to see the plea rate drop. I'm not sure that you're going to see an explosion in the number of cases that go to trial, but you might see defendants being able to negotiate better deals.

Scott: That's right, and probably a higher dismissal rate, I would guess, too, if you can actually make them have to prove it instead of just reacting to that pressure. In Harris County, they've had those 300 or so exonerations based on field tests of drugs that came back later as not drugs. And if you listen to law enforcement, they say, "well, all those were people trying to sell fake drugs," but according to the people in the Public Defenders office, while that's true of some of them, it's also true of many others that they did think they were innocent and just pled to get out. They maybe already had a record, maybe police were sort of arresting the usual suspects to begin with, and so, "what's one more thing. I just want out."

Amanda: Or sadly, I think in some cases, you saw that defense attorneys were counseling their clients to take the pleas in order to get out.

Scott: That's exactly right. So that's the kind of pressure that is relieved on defendants, and I think you're going to see a really different system once that transition is over. I'd be surprised if you didn't.

Coming up, in a segment called Forensic Follies, Mandy and I consider a law professor's argument that Texas' junk science writ is too restrictive, as well as an important development on the DNA mixture issue we talked about in the August podcast, but first a quick word from Just Liberty.

Music/House Ad: Hi, this is Scott Henson policy director at Just Liberty and cohost of the Reasonably Suspicious Podcast along with Amanda Marzullo. On Wednesday evening, September 20th from 6:00 to 8:30, we're hosting a launch party for podcast listeners and supporters at the ATX Factory Group Workspace off of Caesar Chavez in East Austin. Come join us. It's a great chance to learn more about Just Liberty, meet our team, and celebrate the launch of the newest media institution in Texas Criminal Justice Reform Movement. For more info check out Just Liberty's Facebook page. /Music

Next up, a new game segment we're dubbing Forensic Follies.

In this episode we're talking about an issue I'm calling "Junk Science Writs and the Goldilocks Problem." In the Last Hurrah section of our August episode, Mandy suggested the law review article by U.C. Davis professor named Edward M. Imwinkelried - whom I'm going to call Professor Winky because I can't wrap my tongue around his name very often - you'd suggested there were some problems with Professor Winky's analysis, and so let's dig into them.

Professor Winky analyzed five hypothetical justifications for granting relief under a junk science writ, then based on that, he suggested the Texas Habeas Corpus Statute was crafted too narrowly while California's new junk science writ, which was created soon after the one in Texas, he claims was drafted too broadly. So California's writ is too soft, ours is too hard, and Professor Winky is looking for one that's just right.

So, Mandy, you and I both have a lot of history with the statute in Texas. Tell me, now that you've had a chance to look at his article more closely, what did you think of his arguments?

Amanda: I'm going to stick to my guns here. I still think that there are some problems with his analysis. When it comes to the Texas statute for example, I'm not saying that it's perfect, and I'm not sure if we've hit a point where in Texas we're just right, but we're certainly not as hard as he thinks it is. Part of the issue is that the Texas statute provides that you're entitled to a new trial if the science, or changes in the science, or the forensic examiner's own knowledge of that science contradict the testimony that was admitted in your trial, and he says that that requires a full denial of the testimony in question. But that's not exactly how that word has been interpreted in Texas. So, "contradicts" has a few ... I think according to the Merriam Webster Dictionary, it has three different definitions, and one of them is just a mere inconsistency, so if it just doesn't square with the testimony in a way that is, in this case, that is consistent or makes sense with the prior testimony at trial. And it seems so far, the Court of Criminal Appeals has been applying the latter definition.

So in the Robbins case, we saw, that was the case where the medical examiner testified at trial that, based on her autopsy findings, the case involved a homicide. After looking at the case, after several years of experience, she came back and said, you know, I had that wrong. It's not necessarily a homicide, but it's undetermined. We can't make that inference or that conclusion based on the evidence that's in front of us. So that's not a full rebuttal of the fact that it was a homicide, but it certainly is inconsistent.

Scott: Right, Professor Winky, he was describing it as though you had to have actually a full exoneration by the evidence for it to maybe apply under Texas writ. I was the Innocence Project of Texas policy director when we passed this bill and was involved in the negotiations with this, and the word contradict actually came from Senator Joan Huffman's office. We were in negotiations with Harris County DA's office, and Justin Wood, who you know very well, was on the other side of the table. We talked about all this language pretty carefully before we installed it, and how you're defining "contradict" as being more about an inconsistency, less about a complete rebuttal was definitely how we thought of it at the time we were negotiating it, and seems to be how the court has interpreted it so far.

Amanda: And another piece of this is that the testimony in question, I believe in California as well as in Texas, I mean, I can definitely say this about Texas, that it's going to be viewed in the context of the case. You still have to show that it's not just an inconsistency in the science, but something that goes to the heart of the case against you, so I think both of these standards are a little bit more robust or a bit different from I think the way Winky characterized it.

Scott: Right. He seemed to imply that California really would just let you out if there was even the most modest shading on the science or that if there was anything that called it into question at all, but you're right. It does still have to have bearing on guilt or innocence. It can't be so far off the beaten path, and it's hard to imagine that the California courts are interpreting it as liberally as he's suggesting just like the Texas courts are not interpreting contradict as limited as he's suggesting.

(new topic)

Amanda: Following up on a forensic story from our August podcast, we had discussed how private companies are using propriety math models to analyze DNA mixture evidence. A similar proprietary model created by the New York City Medical Examiner's Office was being used all over the country, including in at least one Texas county. New York courts recently required the New York Medical Examiner's Office to turn their model over to a defense expert who reviewed the evidence in the judge's chambers. The model turned out to be flawed and poorly programmed. So, Scott, what are the implications for DNA mixtures and how they're analyzed in Texas?

Scott: This is a fascinating development here because the case that we talked about last month involved DNA mixture evidence being interpreted by a proprietary system called STR Mix, and we also talked about another propriety system called True Allele. Well, the New York City Medical Examiner had their proprietary model that they were selling like they were consultants, and I think there's at least one other model out there. So, what all these models had in common is that no one really knew what was inside the black box, and everyone just says "trust us," and some courts have. In the case that we looked at last month, the Texas courts had simply admitted the evidence and assumed that it was good, and really had not performed much of a gate keeping function. In fact, they had allowed in contradictory evidence from different types of DNA testing of these mixture analyses and just told the jury, "you figure it out," which I thought was rather astonishing.

Well, this is the first one of those black box models that someone has actually looked at and to find out, "hey it's not quite all that and a bag of chips." Maybe that means these others, we ought to open up too, and Texas courts have not required this yet. But Texas is really where this DNA mixture issue has come to the fore and erupted most violently, so it makes you wonder why Texas courts haven't done it yet and when they're going to start.

Amanda: Yeah, it's hard to say. I think part of the issue is that it's becoming apparent that the range of error isn't quite as narrow as they were saying, and also what's sort of interesting about this is that people have known for a while that this software has potential problems. I think at a hearing with the New York Forensics Science Commission, Barry Scheck kind of presciently said the day of reckoning is coming.

Scott: That's right. That was in that New York Times-ProPublica article that sort of exposed all this about the medical examiner's method. Barry actually went off on those guys three years ago, and it was prescient. He was absolutely right that, here we are now because they didn't do due diligence on the front end and make sure that the math was right and didn't allow other experts to check the math. Here we are three years later having to go back and look at and redo cases, just like in Texas, where they're having to recalculate their mixture analysis on all their cases. It's better to measure twice cut once, basically.

Amanda: Yeah, I think so, and that we might never get to a point. I think that that's part of the problem too is like the criminal justice system, including a medical examiner's office is made up of people, so there's always going to be error, and so that it's something that is going to have to be constantly litigated.

Scott: And the reason there's always going to be error, this is not the same as one-on-one DNA match or a DNA match in a rape kit where you know the victim's DNA, so they can pull that out and get to the assailant. DNA mixtures, many times, we're talking about three, four, five or more contributing people to the DNA mixture. And the truth is that the analytical methods are not cut and dried as they are in the one-on-one matches. A one-on-one match in DNA is as good a bit of evidence as we have in the criminal justice system.

DNA mixture evidence requires a subjective judgment call by the analyst, and quite frankly, the mathematical models and methods being used are so far above almost everyone performing this at the workbench in the lab, that all they can do is just plug the numbers into the black box without really understanding what's happening or how an analysis might need to be adjusted because of circumstance. And so understanding the DNA mixture really is this subjective ... it's much more like comparing ballistics. It's more like comparing striations and bullets to see if they were shot by the same gun where someone's looking under a microscope and trying to match them through just the human brain's pattern recognition function. That's more like what's going on with the DNA mixture analysis than the very rigorous scientistic process that's going on in a one-on-one match. (Music)

And now it's time for our rapid fire segment we call the Last Hurrah. Mandy, are you ready?

Amanda: I am ready.

Scott: The Harris County Criminal Courthouse may be closed for eight months after Hurricane Harvey. How will this affect the justice system?

Amanda: I think it's going to create a backlog that's going to take several months, if not even over a year to clear, and there's several cases that were scheduled to start trial right now, essentially, including one death penalty case.

Scott: The criminal court house was the worst flooded [government] building in town, they said.

Amanda: My heart goes out to them. During Hurricanes Katrina and Ike, local jailed prisoners were stranded in flood facilities in New Orleans and Galveston. Did anything like that happen during Hurricane Harvey?

Scott: Allegedly prisoners in Beaumont, a federal prison, were stranded in flooding waters. That's now been disputed by the Bureau of Prisons, but that's what it sounds like went on from emails that came out from prisoners to their family members. And then in Harris County, the county jail actually let prisoners out from their probation facilities during the height of the flooding and said, "we can't feed you. We can't take care of you. Go out into the flooded waters." As for TDCJ, I should give them credit. They actually did move all their prisoners out of the flooding areas and were very conscientious about that, and got them all out well ahead of any significant problems.

Federal inmates in a flooded prison in Beaumont let the outside world know about dangerous conditions there through a monitored email system designed to let them keep in touch with their families. Should state inmates in Texas prisons have email access?

Amanda: Absolutely. Email is important, and in this case, I think it just demonstrates, it's an important function just in and of itself. We would never have known about the dangerous conditions in this facility if it weren't for the email access that the prisoners had. But email also allows prisoners to remain in touch with their families despite long distances, which also facilitates their ties to their community and helps with re-entry, so it makes sense both from a constitutional standpoint and say and for a policy re-entry requirement.

Moving on, the Brennan Center found that murder rates in America's 30 largest cities are down this year, led by Houston where murders are down 20%. Are you encouraged by this news Scott?

Scott: You know, it's always good news when fewer people are murdered. There's no doubt. But I think the one lesson to take here is that we shouldn't get too excited when the numbers go down for a half year, just like we shouldn't get too excited when we see a one-year increase or a two-year increase. These crime numbers really take a long time to interpret them. You don't really understand what's happening until you have a several year trend.

The Urban Institute found that the longest sentences given to prisoners are getting even longer. Does that make us safer, Mandy?

Amanda: Probably not. Almost definitely not, and there's a lot of data out there that says that there are diminishing returns on these longer sentences, and people age out of crime.

More than 7,000 Texans have signed Just Liberty's petition to DPS requesting new rules to limit arrests for Class C misdemeanors. What's next?

Scott: The Public Safety Commission will consider our request at their October meeting, and at this point, with lots of bipartisan support, I think we've got a decent shot.

All right, so we're out of time, but we'll try and do better the next time. Until then, I'm Scott Henson with Just Liberty.

Amanda: And I'm Amanda Marzullo with the Texas Defender Service. Goodbye and thanks for listening.

Scott: We'll be back next month with another edition of the Reasonably Suspicious podcast. Until then, keep fighting for criminal justice reform. It's the only way it's going to happen.

Transcription by Rev.com. Edited for grammar and clarity by Scott Henson.