Tuesday, October 24, 2017

Reasonably Suspicious: Police unions, collective bargaining, and accountability

Check out the latest episode of the Reasonably Suspicious podcast from Just Liberty. You can listen to it here or access it on all the usual channels: iTunesGoogle PlayYouTube, or SoundCloud

If you haven't subscribed yet, take a moment to do so now. I'm enjoying the format and am hoping to do some interesting things in the coming months heading toward the 86th Texas Legislature. If the Wall Street Journal's right that the next billion internet users won't type, relying on voice and video, then it behooves an old dog to learn new tricks. And having cool, original music wrapped around the conversation - thanks to producer/guitar virtuoso Gabe Rhodes and some of the finest musicians in Texas (which is saying something) - makes it fun to put together.

This month's episode features three segments on police union politics, including one focused on Austin's "meet and confer" contract presently under negotiation (these highlights from the negotiating table recently made the rounds among city insiders), and a discussion of what Grits had dubbed the police union playbook on spinning to the press in the wake of police misconduct or high-profile "critical incidents." I'm perhaps most excited about the interview with Sam Sinyangwe, Campaign Zero's data specialist who has now twice visited Austin to support including accountability measures in the police union contract (or scuttling it if they're not included). I'll publish the full interview in a few days (in the meantime, you can also check out the speech he gave in Austin in September). But the segment in the podcast on why police unions too often get a political pass was worth the cost of admission.

Lots of other good stuff sprinkled throughout. As always, find a transcript of the podcast after the jump below.

Top Stories
  • The Police Union Playbook on reacting to critical incidents
  • If Harris County prosecutors are screening arrests, why are so many people arrested for Class C misdemeanors?
  • Sukyi McMahon and Kathy Mitchell on the Austin police union contract
  • Scott Henson interviews Campaign Zero's Sam Sinyangwe on why liberals and conservatives are both reluctant to criticize police union excesses
Game segment: Fill in the Blank
  • Bexar and Dallas Counties cease arrests for misdemeanor marijuana possession
  • Court of Criminal Appeals still denying DNA testing to capital defendants
  • Real costs of incarceration top $1 trillion nationally
The Last Hurrah
  • Unions now a minority at Dallas police pension board
  • Time to make the Austin crime lab independent?
  • Bipartisan push in Congress for asset forfeiture reform

Transcript: Reasonably Suspicious podcast, October 2017, featuring Scott Henson and Amanda Marzullo, with guest appearances by Sam Sinyangwe, Kathy Mitchell, and Sukyi McMahon.

Mandy: Hi, this is Amanda Marzullo. An East Texas man was arrested after taking an electric cart from Wal-Mart and then driving it on a state highway out of town. Scott, what do you think was going on?

Scott: This whole thing has gotten blown out of proportion. For starters, there's a big sign at the Wal-Mart that says you can use these things for free. And I wasn't stealing the darn thing. I was on my way to race a guy with a riding lawnmower.

Mandy: So lawnmower-electric cart drag racing is always a good thing to do on a state highway.

Scott: That's exactly right. You've got it. The real tragedy is that now we'll never know who would have won.

Mandy: Yeah, the great debate lives on.

Scott: It lives on and we'll always wonder, I promise you. Hello, boys and girls and welcome to the October 2017 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?

Mandy: I'm looking forward to talking about police unions and hearing what Sam Sinyangwe has to say on the topic.

Scott: All right, me too. First up though, between Black Lives Matter activists upset about police misconduct and conservatives concerned about budget busting pension deals, police unions have come under fire in 2017 perhaps more than any time in recent memory, so we thought it worth delving a little more deeply into a new book co-authored by one of the leaders of the Texas police union movement, Ron DeLord, who for many years led the Combined Law Enforcement Associations of Texas and today is a freelance labor consultant for police unions. In particular, chapter 11 of his book gives police union leaders advice on how to deal with critical incidents like controversial shootings or beatings that are caught on camera. They suggest police union leaders wrap themselves in the flag, blame victims of police misconduct for their plight, and drag out the process as long as possible hoping the public will forget. Mandy, what did you think of his advice?

Mandy: It's hard to wrap it up into a single thing. I think that if you were really going to take a look at his advice as a whole, I think a lot of it makes sense. Where he sort of goes off the rails a little bit, in terms of what we would want of a police union, is that he really is advocating for blaming the victims beyond the scope of their own responsibility.

Scott: That's right.

Mandy: That's where it gets crazy. One of the more impressive things, I think, about this, that you and I have talked about in the past is his first rule is do not defend the indefensible, this idea that police unions stand to gain when they don't defend someone who is engaged in intentional misconduct.

Scott: Right. Well, I have to say, that fascinated me because the truth is that, historically, police unions in Texas have defended anybody and everybody no matter what they did. Even the most egregious cases, the police unions would come and go balls to the wall to defend them for whatever had happened. This is actually very interesting advice to me, because the people at the Combined Law Enforcement Associations of Texas, where he used to work, or the other big police unions have not always reacted that way. His example actually gave a case study where a police union had thrown an officer under the bus instead of defending him. He had gone ahead and got fired and the police union got good publicity. Well, I'm not sure that's actually what the rank and file of the union really are looking for, so it was interesting to me to see him give that advice. But you're right, some of the other things that he mentioned were pretty outrageous. Why don't you read the sub-heads in that chapter, because they're really quite alarming.

Mandy: After, "Do not defend the indefensible," he also says, "Redirect the message. Wrap yourself in the flag. Remind the public who the real bad guys are and pray that there are some. Educate the public about the hazards of the job. Time heals all wounds. Public trust is key. You cannot control the actions of your members 24/7."

There's a lot to work with here, right? Obviously, the sub-heading, "Remind the public of who the real bad guys are and pray that there are some," on the one hand, that's awful that it's trying to re-spin it, but even there he's acknowledging that the officers might not always be right.

Scott: Right. There's an hilarious section in there where he announces that, if it turns out that the people who are the victims of misconduct are a carload of preachers, go back to the recommendation to wrap yourself in the flag.

Mandy: Yeah. There will be no good in pursuing this. But in some ways, it's sort of interesting because I think that his recommendations kind of acknowledge that defending the conduct of someone who has gone outside the scope of their responsibilities and has harmed someone longterm is not in the collective interests of law enforcement.

Scott: Right. You said to me earlier that this was really kind of similar to how defense attorneys approach defending their client. Maybe you find someone else to blame. Maybe you minimize your culpability.

Mandy: I did not say, "Find someone else to blame," amongst the top things that you do. I take issue with that. But this idea that time heals all wounds, that there is this idea sometimes that cooler heads prevail with the passage of time and that nothing good necessarily happens fast in a criminal case. It's okay to have the case linger. Sometimes it might be in your client's interest, but also, maybe in the non-death penalty context, that sometimes it's not in your client's interest to take everything to the mat, which resonates with his first rule that sometimes what you might be doing is trying to figure out the best way to negotiate a settlement and that it's not about going to trial.

Scott: Right. What I was interested in more in the defense attorney analogy ... I'm sure I did overstate it, but what I was interested in in that analogy was, to me, especially in Texas, where most of our police unions do not have contracts - we have a few, like in Austin, that we'll talk about later, or Houston where there are significant contracts, but in most cities that isn't the case. And so where you don't have collective bargaining, what police unions actually are, in the real world, is misconduct insurance. You pay your dues and if you ever screw up, if you shoot somebody, if you beat somebody up, if you do something that gets you in trouble, the union is there with a phalanx of lawyers and lots of political pull and they've given money to all the City Council members. They're there to have your back with all of their political clout. The idea that he has the same sort of messaging as a defense attorney is actually not very surprising, because defending police officers when they've engaged in serious misconduct, for most of these unions, it is the only real thing that they do.

Mandy: Purportedly engaged in misconduct.

Scott: There you go.

Mandy: But you're right that it makes sense that it would be a similar playbook. What, I guess, we both are finding surprising is that he's acknowledging that this isn't a blank check, that they can only do so much and that there is a line where they can't necessarily protect you and I think that it might be when you're engaging in intentional wrongdoing.

Moving on. For years, Harris County won praise from reformers for a system that requires prosecutors to get formal approval before police officers can arrest suspects in the field, but this year, as part of legislative debates over a bill to limit arrests for low level traffic violations, a new study revealed that fully 10 percent of all arrests in Harris County are for Class C misdemeanors, the lowest level criminal offense where the maximum punishment is only a fine and not jail time. Scott, should we still consider the prosecutor pre-clearance system praiseworthy?

Scott: This actually gave me some heartburn, I have to admit, because I have praised this situation in Harris County for years as a best practice and recommended it to others. Harris County, Montgomery County and El Paso County are the only three counties in Texas that require prosecutors to give pre-clearance for police before they make arrests and those three counties in Texas are, in fact, to my knowledge, the only counties in the entire country where that's the case. This is a Texas thing, sort of a Texas experiment, and I've always thought it was a good idea. What we learned here is that it turns out they're only giving that pre-clearance for Class B misdemeanors and above, and so what that means is often officers will be told, "No, you can't arrest someone for the Class B misdemeanor, but you can go ahead and arrest for the Class C because that's not under my jurisdiction." Now, at least for me, I now have this fear that, well, maybe this system is encouraging more arrests for these petty offenses. On the one hand, yes, at least they're not being charged with the higher crimes, but it is concerning that 10 percent of arrests are for Class C misdemeanors. That's a really large number.

Mandy: No, it's incredible, if you think about it. It makes you wonder if we're going to have this pre-clearance system, if it makes sense to have it apply just to all arrests in general, especially if you think about how if there's a constitutional problem with the case, for whatever reason, and that's why it was turned over. Defendants who are charged with an offense of Class B misdemeanor and above have access to counsel. They can have a court-appointed lawyer. If you're charged with a Class C, in some ways you might have a harder time challenging your case than you would ... While it's great that you're not facing more serious charges, you're still stuck dipping into your pocket or trying to find a way to finance your case.

Scott: That's exactly right, because you're only appointed a lawyer if the maximum punishment for the crime that you're charged with includes jail time.

Mandy: Yes.

Scott: Class C misdemeanors have a maximum punishment of only a fine and so you don't get a lawyer if you're indigent. You're right. If there was a constitutional problem, if your rights were violated, you're a lot less likely to have any ability to react to that effectively or to really assert your rights in court without an attorney. I'm really not sure how I feel about this. I do think that it's better to now be charged with a higher crime for sure, but you're right, just because the DA doesn't deal with Class C misdemeanors, they really probably should be advising officers on those arrests too. You're not going to have municipal court prosecutors doing that.

Mandy: There could be something where if they call in and they're asking about whether an arrest in a particular situation makes sense, and if they say, "No,' then there is no arrest. It could be that simple. Or there is no citation, that's the end of the situation.

Scott: We would just have to extend that prosecutor's word to those Class C misdemeanors, their authority, because right now they're saying, "Okay, they said I can't arrest for a Class B, but yay, that means I can arrest for a Class C," and so they go ahead and do it.

Mandy: Yeah, and that could be enough. Who knows, then that might be a situation where law enforcement is then just calling prosecutors less often in these sort of borderline cases.

Scott: Right. And I do think that what we're seeing there is a situation where, when someone wants to arrest for a Class B but goes and arrests for a Class C, I'll bet you most of those are contempt of cop situations. There's something where somebody has done something or said something that teed the cop off and they just want arrest him for whatever they can arrest him for. They'd like it to be the bigger charge because that gets you more chits, but they'll really just arrest him for anything. I feel like there's some abusive practices that are probably being concealed by this process that really deserve to be looked at more closely.

All right. Coming up, a game segment in which we discuss arrests for low level marijuana possession and access to DNA testing in capital cases, but first in Austin, the local police union and the city are wrapping up contract negotiations. A group of local activists, as it happens including my wife, Kathy Mitchell, who is an organizer with the Texas Criminal Justice Coalition, and Just Liberty's Sukyi McMahon have been pressing the parties to change portions of the existing contract which are hostile to reform. We'll also hear from Sam Sinyangwe, one of the founders of the anti-police brutality group Campaign Zero and a national leader in the Movement for Black Lives. We'll publish both conversations in full in the days ahead, but for now, here are some key excerpts to give listeners a flavor of these debates.

Sukyi McMahon: Hi, everyone. This is Sukyi and, yes, I have been to several of these negotiation meetings with Kathy and others. Kathy, what exactly is meet and confer?

Kathy Mitchell: Police, fire and, mostly recently, EMS unions can negotiate a contract with their city that can preempt conflicting state law. What that means is that, for officers, they can negotiate more generous pay and benefits. For the rest of us, a city could negotiate greater accountability and transparency than the state law frameworks. Better pay for a better force, at least that's the idea. Unfortunately, it hasn't exactly worked out that way.

Sukyi McMahon: Yeah, I've read that Austin's police officers are the highest paid in the state. Is that because of this process?

Kathy Mitchell: Yeah, absolutely. Every new contract, officers get more money or better benefits. After a few cycles, most Austin officers are now the highest paid in the state. They get a longevity bonus on top of their longevity step pay. For one hour of court time outside of their normal shift, they get four hours at time and a half. They accrue sick and vacation leave at higher rates than would be allowed without this agreement and they get to cash out nearly a year's worth of that time when they leave. Sukyi, you have been watching. Do you think the city side has fared as well?

Sukyi McMahon: Well, if the city negotiators are supposed to be making sure Austinites can trust that misconduct will be handled appropriately and our rights are being respected, we have a way to go. The current contract says, one, an officer can't be disciplined if the chief finds out about misconduct 180 days after it occurred. We saw that with the Breaion King case. Another provision prevents the chief from considering certain acts of past misconduct when evaluating new misconduct. Another provision will tie the hands of the Civilian Review Panel and keep records of misconduct secret. When we first started going to these meetings, it almost seemed like both sides had already agreed on most of the contract. They were ready to make some minor changes around the edges, but there were many parts of the contract, like the 180 day rule, that weren't even up for discussion, but things started to change. Kathy, talk about what it took to even bring questions of accountability into the discussion.

Kathy Mitchell: Well, it all started with a strong demand from a bunch of local groups that the city manager's team actually asked for additional reforms that weren't part of the original negotiation plan. We met with the negotiation team. We presented at Council more than once and we slowly built momentum for these kind of changes. Finally, the city team did actually lay some of them out in one of the meetings.

Sukyi McMahon: And then the other shoe drops.

Kathy Mitchell: Right. After laying out real reforms that would hold officers accountable, at the next meeting, the city announced that it would withdraw two of the most important reforms in order to get the union to talk about one of the reforms, the 180 day rule. At that point, it became clear that most of what we had been calling for wasn't really even going to be part of a real discussion, so that's why the end of this process is now shaping up differently from the last round. After looking at what we're paying for what we get, a whole lot of people are starting to say it's time to just stop, just go back to state law, let millions of dollars revert to general revenue and start doing things differently.

Scott: Next up, here's an excerpt of my interview with Sam Sinyangwe, one of the co-founders of Campaign Zero, a relatively new organization which has emerged as the defacto policy arm of the national police accountability movement. We'll publish the full interview in a few days, but for now here's Sinyangwe on why it's so politically difficult to hold police unions accountable.

Scott Henson and Sam Sinyangwe
One of the things that Campaign Zero has done that really has not been done as systematically is critique the role of police unions and the role of police union contracts. Talk to me a little bit about how the traditional liberal base has reacted to this and some of the tensions that come when you're asking accountability activists, who mostly ally with the left, to take on unions and sort of stick their finger in that fan.

Sam Sinyangwe: It is one of these issues where, as we were looking at all of the ways in which this system has enabled or refused to hold police accountable for police violence, what was clear was that police unions were playing a huge role in that process. They were playing a role through legislation, where they were putting in place policies and laws, in 14 states police officer bills of rights that made it much harder to investigate and hold officers accountable for misconduct. They were playing that role in negotiating police union contracts that had provisions in them that disqualified certain complaints, so if you submitted a complaint more than 60 days after a police officer beat you up, they could not investigate that complaint or if they took longer than 180 days to investigate the complaint, then they couldn't discipline the officer or they would give officers a 48 hour delay before they would even ask them for a statement about what happened. In some states, like Louisiana, it's a 30 day delay before officers actually can be asked what happened. All of these things were happening sort of behind the scenes, but really in plain sight. The police union contracts, these are public documents, but they hadn't been reviewed in a systemic way to identify what are the ways in which these contracts are making it harder to hold police accountable so that those types of contract provisions could be targeted and removed.

To your point about the left and some of the tension, I think this issue of police unions and police union contracts hasn't become a national issue until now, in part because there is sort of a bipartisan consensus not to confront the police unions. On the right, you have people like Governor Scott Walker in Wisconsin and others who are taking on unions, trying to dismantle labor unions, doing all this terrible stuff, but they are exempting the police unions from all of that legislation. On the left, you have a huge influence of labor. To be clear, the labor unions do incredible work, they ensure middle class and fair wages for workers, but in the context of policing, they have operated in a much more nefarious way by making it much harder to hold this institution that has the power to take life and liberty, allowing that institution to operate in ways that completely evade accountability. And so we decided to take that on directly through our police union contract project and have been working to get those provisions removed in every city.

Mandy: Now it's time to pay Fill in the Blank, which is exactly what its name implies. First up, law enforcement agencies in Bexar and Dallas Counties will cease making arrests for small quantities of marijuana. Scott, fill in the blank. Texas jurisdictions still arresting people for marijuana are?

Scott: Wasting tons of money. Oh my gosh. It's hard to imagine, at this point, why anyone would think that it's a good idea to fill up your jails, take your police officers off the street, all the things that go into prosecuting marijuana laws when every city is struggling to cover its jail costs and the police force costs and the pensions are all busting the budgets. Why you would volitionally choose to spend all this extra money on petty pot offenders when, since 2007, you've been allowed to simply give them a ticket instead of take them to jail, is simply beyond me. I'm not sure why it has taken 10 years for these jurisdictions to being to use this authority, but I'm glad they have.

Mandy: Yeah. I was going to say imperiling their tax base.

Scott: Yes.

Mandy: Not only does this not make sense, in terms of their funding, but a person who is given a citation can report for work the next day and maintain employment, but someone who is brought into custody over what is sort of a very, very low level offense will be unable to report for work and that does threaten their employment, which in turn threatens their ability to pay taxes.

Scott: Exactly. The fine amounts of these offenses are ... They're not getting just huge amounts of fine revenue from this. It costs them far more to enforce these laws than they're getting back from the defendants.

All right. Moving on. Robert Pruett was executed recently without DNA testing having been performed that his attorneys hoped could prove his innocence, while the Texas Court of Criminal Appeals once again denied Larry Swearingen's request for additional DNA testing in a capital case. Mandy, fill in the blank. These cases show Texas DNA testing statute is?

Mandy: Misapplied. I think that if you were to look at the text of these statutes as well as the legislative history, it's very clear that the Texas legislature intended to create a very broad right for post-conviction DNA testing. That is not what is being applied or how it is being implemented by the courts. Their first duty in looking at these statutes is to discern legislative intent and implement it. That is not what's happening here. What we've had over the years is just a series of volleys back and forth between the courts and the legislature about when DNA testing is appropriate. I think this is another instance where we might see another revision to the DNA testing statute in response to recalcitrance from the court.

Scott: Right. Well, your comment about it going back and forth gets to my answer. I would say that it is inexplicably in flux. The first DNA statute we had was passed in 2001 and it was in reaction to the Court of Criminal Appeals denying DNA testing to a man who was eventually exonerated once the DNA testing was allowed. Since that time, we have gone back and forth over and over and over where the legislature passes a law, the Court of Criminal Appeals finds what they believe is a loophole to say that somebody shouldn't get DNA testing. Then the legislature comes back and changes the law and expands it to say, "No, no, that person does get testing." Then the Court of Criminal Appeals goes back and finds some other little narrow loophole that they think says that they can deny it to somebody and the legislature comes back again and we go back and forth.

It's become, actually, remarkably easy to pass some of these DNA testing laws at the legislature because they're getting used to having to correct the Court of Criminal Appeals. It's almost becoming a habit now and I don't understand why we're still doing this in capital cases. I don't understand why the Court of Criminal Appeals can look at this entire legislative history and still think, "Oh no, we we should have executions where there's DNA evidence that was never tested." What? Really? No one thinks that.

Mandy: Yeah, no one. And also it makes you wonder what the prosecutor's interest is in opposing DNA testing in some of these cases. Either they have a conviction and a death sentence that's supported by the evidence, in which case the DNA testing is only going to confirm that, or there is a problem and there's someone on the row who may innocent and testing would exonerate that person and prevent the state from carrying out a miscarriage of justice.

Scott: For that matter, if there's someone on death row who is innocent of the crime of which they were convicted, that means that there's an actual killer out in the world who has gone free. There really is no prosecutorial interest in doing this and yet they do it over and over again. So I agree, it's inexplicable to me. I don't understand why we keep having these fights and I don't understand why the laws that we have passed so far are not being applied to Larry Swearingen in particular.

Mandy: So the last one is a new study out of Washington University in St. Louis found that the true cost of incarceration to society exceeds $1 trillion, more than six percent of the gross national product and far more than the $80 billion spent on corrections each year. According to the author, more than half of the costs are borne by families, children and community members who have committed no crime. Scott, fill in the blank. The economy benefits with prisons?

Scott: Close, I think we would have to say or vanish. Essentially, I think this tells us what many of us have been arguing for a while, that mass incarceration has far greater cost to society than just the amount that we spend on imprisonment and I'm glad to see them quantify this. There has been a lot of effort over the years to quantify the costs of crime victimization, but I think this is the first effort I've seen to comprehensively quantify the costs of incarceration.

It was fascinating to me to learn that half or more of the costs are borne by families. I think anyone who has been around a family with an incarcerated family member can entirely see why that's the case, the loss of an income generator in the family, the additional services the children might need. For that matter, just the costs of staying in touch on the telephone because the costs of the phone services are so high into prison. There are a lot of costs that are shucked off on some of the folks who are the very least able to pay it. I think that this is further evidence that when we retrench on incarceration, when we scale back, close prisons and use those societal resources for something else, there's many, many more benefits than just to the individuals who might have been released or something of that nature.

Mandy: Yeah, I know. I was going to say the economy benefits when prisons recreate themselves. It's not that far from disappearing in some ways. Either we need to find a way for prisons to configure themselves in a manner that equips people to reenter society, whether it be sort of similar to the system that they have in Germany where prisoners are equipped with job skills and a support network that allows them to resume productive lives or maybe it's sort of an open prison model, which we have in some places in Texas in certain circumstances, where prisoners are able to have a job in the community during their incarceration that allows them to accrue an income.

Scott: Right. They'll jail them on the weekends but let them go back to work during the week sometimes on misdemeanor charges and stuff, that's right. I really like that idea. No one really thinks it's a great idea to have prisons just be warehouses. No one thinks that sending someone to just sit in a cell with no rehabilitation or anything but the punishment of having just waited out your term is improving those folks. They're not leaving better. There's a lot of evidence that, if they come in as a low risk person, that actually makes them more likely to commit crimes when they come out. So I really like that idea. I think that's where we need to go and I think that if people really understood the true costs at the level that we're talking about here, six percent of gross domestic product, that's an amazing sum.

Mandy: It's extraordinary.

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

Mandy: Ready to go. In the wake of recent reforms, Dallas's police union now has a minority of members on the board that oversees its pension. Is that a problem?

Scott: The police union thinks it is, but it's probably a solution. The fact is, when the union members were the majority of the board, they voted themselves all these extra pensions benefits that ended up nearly bankrupting the fund and so this was really something they had to do.

Austin's crime lab has suffered a series of scandals, including having to shut down its DNA lab over alleged incompetence. Is it time for the city to make the crime lab independent, like they did in Houston?

Mandy: Absolutely. I think that we are well overdue for an independent crime lab, both to preserve the integrity of the evidence and the practices. Houston has been able to implement a number of programs that make the crime lab constantly pursuing more accurate testing of the evidence and that is something that every jurisdiction in Texas needs to be doing.

Last one. Bipartisan amendments to curb federal asset forfeiture passed the US House of Representatives and Just Liberty has launched an email action to ask Senators Cornyn and Cruz to support these measures. So what are the chances for these bipartisan proposals? Can they pass Congress?

Scott: Well, I would not have necessarily thought so until these amendments passed in a bipartisan way in the House of Representatives. You could have knocked me over with a feather when that happened. Now that that has happened, now that we have these bipartisan reforms and momentum, I guess if Congress wants to pass anything this year, this may be what there is, so let's hope. I'm more optimistic that the Senate will pass it than I am that the president will support it, but it has gotten further than I would have thought already.

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

Mandy: And I'm Amanda Marzullo with the Texas Defender Service.

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

Mandy: And just a special shout out goes to Paul Kerbegian, my friend in New York who has been amazingly supportive of this podcast.

Scott: All right. I'm glad someone is listening. That makes me feel better. [Music rises, conversation fades.]


Wise Texan said...

Please add your podcast to the Stitcher platform. It's my favorite way to listen to podcasts. Thanks!

john said...

I'll only read transcripts, podner, please.
Are you kidding about okaying endless Class C Misdemeanor tickets? What, do your cars have stickers, "unarrestable internet personality"??
Any altercation is a chance to frighten/trick/terrify the citizen OR illegal into upping the ante, getting higher charges & accusations. They jail unjailable alleged crimes, all the time. They get paid for each "person" in jail. If the "person" doesn't react, the heavily-armed cop can just fake it, and insist he felt threatened.
Every stop is technically an arrest, and they'll deny that. {Sonic: "that's not true"} Who knows how long you may be unlawfully detained, and they DO NOT CARE. They're required to take you to a Magistrate, yet who will not be available, say, until the next day. There's a lot of word play, hiding behind legalese. We The Poor People are not in the Bar/union OR Cops' unions, etc. We are merely targets. You could pay, to get out of it, earlier.
Every such abuse (& more) is also a chance the "person" will just mail in the raised-revenue payment, go to the payment window and submit to this excessive, systematic injustice--hey, just acquiesce.
You make an interesting point Harris & Montgomery do it, but I think also Galveston and anything including Katy, et al. Where do YOU guyz live? Austin? Over there by Austin, can't you just donate a can of fruit salad and get out of tickets? Over here, they're hateful, intentionally intimidating; and the judges--whether sitting, visiting, no-oath-on-file, guest, etc.---are worse. Their arrogance nearly always exceeds their competence. Yeah, TRY and get a court recorder. (We wonder if Harris Co./region is allowed rogue, since they pay Austin the highest revenues, or what? I mean, we have a record number of demagogueing grandstanding elected "Reps" who provide zero assistance.)

Gritsforbreakfast said...

@12:02, first, you should check out the podcast itself. The transcripts don't come with cool western swing music. :)

Second, no one was "okaying" arrests for Class C misdemeanors, we were criticizing the process. Third, every stop is a detention, but not every detention results in an arrest. Everyone is entitled to their own opinions, but not their own facts. And the definitions of words still matter (for a while longer, anyway).

Finally, the cops don't get paid per ticket, but they do get overtime if/when they show up for court. In Austin, the overtime pay is actually pretty outrageous.

Anonymous said...

I liked the podcast but had a few thoughts.
1) The whole Class C arrest topic. Consider that looking at the numbers, Class C misdemeanors, often traffic tickets or minor breaches of the peace, comprise the vast majority of all charges/arrests. That is balanced by the fact that only 10% of all arrests made are this type, I wonder how many are not so much "contempt of cop" as much as a driver having no identification, a person who is drunk, a simple assault or Class C trespass, or the biggie, the suspect has open warrants. And given agencies are tasked not with bringing a person immediately before a judge but have 48 hours to do so, hand wringing about it might best be addressed by changes in legislation.

2) Police Union Playbook: Even Scott doesn't think most unions follow key aspects of DeLord's dictates, his comments regarding not defending the indefensible for example. What might be overlooked is that until an investigation is completed or nearly completed, exactly what is indefensible is in the eye of the beholder. If the officer tells the union lawyer he did something and it later comes out that the officer did something else, how if the union supposed to know ahead of time? And like it or not, given Texas' very basic laws regarding threats, perceived or real, it is clear that all an officer has to do is reasonably articulate a fear to give them a wealth of protection. What some unions are doing in recent years, Dallas and Houston come to mind, is when an officer is engaged in clear misconduct off duty, they are increasingly unwilling to represent his legal interests unless he was working an extra detail in a police capacity, some employee theft cases coming to mind or in Houston a case of a cop shooting his neighbor.

3) Police Contracts: Austin gets better pay in part due to the area having a public safety tax, a rarity in Texas. The 180 day provision is being misstated since it only applies to policy violations, not criminal misconduct, the biggest failing with regard to the time frame being when people don't complain when something happens but many months or even years later. For criminal misconduct, the statutory time limit applies, a department can fire an officer after 180 days for breaking the law, at least that is how arbitrators have ruled when presented with such cases. If a police chief errs on the side of caution against the best interests of the public, it might be better to find a more qualified chief to run a department. Then again, since most contracts under meet and confer are handled in secret, once the details are worked out, any post contract discussion period by reformists is going to be side swiped for fear of negating the entire negotiation. The time for reformists to educate public policy makers and elected officials in long, long before the hearing process tacked on at the end of lengthy contracts discussions.

4) Union officials on pension boards. This might be a Dallas-specific thing because cities like Houston and elsewhere prohibit officials serving on one board from serving concurrently on the other (you can't sit on both at the same time). Cite for Dallas?

Anonymous said...

PS: In Wisconsin, Governor Walker did not exempt police from changes. The police unions there made a political deal with the governor to minimize impacted changes, public support for police and firemen was strong enough that they fared much better than the teachers who very vocally fought tooth and nail against the governor. So public safety paid more for the somewhat lower benefits, groups supporting him sure were treated better.

PPS: Some cities have long had policies regarding charging people with the highest level offense possible, marijuana offenses included, that prohibited officers from writing tickets regardless of what the legislature allowed for. If asked, many in the legislature made it crystal clear that cities did not have to write tickets for low level pot offenses, only that it was then allowed as a local choice, most areas of the state continue to resist treating these offenses like a speeding ticket.

Gritsforbreakfast said...

@5:26, thanks for your comments. Here are some responses.

First, open warrants and drunk driving would not listed as Class C arrests. Also, Class C assault and trespass aren't common reasons for arrests in that category - most of them are traffic violations.

You say the 180 day rule issue was misstated because it "only applies to policy violations, not criminal misconduct." But we're talking about the department punishing the officer administratively, including firing for misconduct. So I'm not sure what you're talking about.

It's true that, when an officer engages in criminal misconduct, both a criminal and administrative investigation are launched simultaneously. But as a practical matter, the administrative framework governs the process because officers don't have to cooperate with the criminal investigation. Technically, they're different. In practice, the issues are conflated.

Also, in Austin's case the Austin Justice Coalition was in the room for negotiations from the very beginning. Your concerns about coming in at the end of the process simply don't apply there.

Source on Dallas pension board makeup.

Finally, you're simply wrong re: Scott Walker. He did exempt police unions.

Gritsforbreakfast said...

Also, Austin police are paid from the same taxes as the rest of the city budget. There is no public safety tax.

Anonymous said...

Grits, this is 5:26 again.
In (1), I was referring to "drunk" as "public intoxication", not the higher level charge of DWI (Class B and above) and when class C warrants count or not themselves when listed, a very common practice for officers is to arrest people on their latest charges if they are found to have class C warrants. If they didn't show up for previous tickets, their promise to appear is questionable, the verified warrant serving as the basis for arrest. Otherwise, the listed offenses were provided by a municipal prosecutor who moonlighted in county JP courts for years, hence my "I wonder..." comment if this remained true. Cities like Houston have opened centers to reduce the number of arrests for PI but that is still a rarity across Texas.

For the 180 Day Rule, if there are criminal violations, it doesn't apply in the slightest to those charges but each Civil Service police agency in Texas has variations on the specifics of how the rule is applied. Dallas and Houston are very similar because they have some of the same core lobbyists, the rule not working the same way you describe in Austin, nor are provisions interpreted the same way. In those cities, groups like AJC are not involved in negotiations either, the secretive nature impacting any attempts for political outsiders to toss in reform measures.

Pension boards: I think we were addressing different points. The music was a little too high on the podcast for me to hear your colleague's comments when I first listened but you were referring to police officers serving on the board under the changed board composition while I was merely pointing out that UNION OFFICIALS do not nor did they serve on the pension board. The header on your article was "Unions now a minority at Dallas police pension board" which implies union leaders were on the pension board and after some research, I found that was not true before or after. Given the financial stakes involved, board composition is a hot topic across the country but Texas has built in protections more union friendly states do not have.

Wisconsin: Before Governor Walker, most police in the state paid nothing toward their pension or healthcare, or very little, now they pay in albeit a smaller amount than some of the other groups. If that counts as exemption, I'm sure they would disagree with you, their retirement healthcare costs also increased tremendously since that article was written in 2012.

Public Safety Taxes: Sorry, that was a Freudian slip, Tarrant County is the big user of such additional taxes and Austin is in Travis County. That's under Chapter 363(?) of the Local Government Code.

Gritsforbreakfast said...

@11:30: PI cases don't remotely explain the data. It's almost all traffic. Just not the case.

In Dallas, the union previously appointed a majority of the pension board. Now it appoints a minority. I don't think what I wrote was misleading, but I'm glad you were able to clarify to your own satisfaction. Seems to me like a distinction without a difference.

Your comments about Walker are just wrong, to the point of seeming intentionally misleading. He exempted police unions from his reforms, and said he did it in case he needed them to bust the other unions ("so there was no question that law enforcement would be available in the event of strikes or work stoppages"). The comments about who pays for pensions, etc., are obfuscations. That's not what the debate was about.

You're also obfuscating on the 180 day rule, if in a more traditional and usual fashion. As a practical matter, officers don't cooperate with the criminal investigations and the admin rules control what little accountability they get. That's just reality. The Chinese Wall you posit doesn't mean much in practice in terms of improving accountability, it only serves to thwart it.

Anonymous said...

Grits, on the class C cases, my initial comments stand; if you have warrants for other class C violations, most officers will book you on the new traffic as well. That doesn't change the fact that 90% of all arrests are for higher level charges. If you want to reduce your chances of being arrested for lower level crimes, keep your court appearances up to date and comply with your promises to appear.

In Wisconsin, you keep referring back to the very first days of the changes, those being when the other unions would be most likely to strike, etc. You keep missing the point that changes for public safety most certainly did take place later but believe what you will unless you are ready to compare their contracts pre-Walker and now. You can debate it as you see fit but everything I wrote remains more accurate.

180 Day Rule: I apologize if your unfamiliarity with how it works in the rest of the state clouds your perceptions but in most places, officers cooperate with the letter of the law as demanded of them. In most cities, should they invoke their 5TH Amendment protections, they do so at the cost of their jobs, a far cry from the rest of the populace. What more do you want exactly?

Lastly, while protected by a firewall requiring people pay to view the pension article (big surprise to limit discussion), the article specifically states that the committee of firemen and cops DO NOT APPOINT nor did they appoint pension board members, the committee vetted those who wanted to run for the open spots and the employees (including non-union members by the way, something a follow up letter explained) then voted on who would be a pension board member. In neither case did the unions appoint pension board members.

AWAIS said...