If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this month include:
Top Stories
US v. Carpenter: SCOTUS appears likely to require a warrant for cell-phone location data.
Interview
Brandi Grissom, discussing the staff-on-youth sex scandal at the Gainesville State School.
Home Court Advantage
Evaluating a sharply split decision from the Texas Court of Criminal Appeals upholding a first-degree felony drug conviction in which a police officer stole the product and laced sheetrock with less than a gram of cocaine to frame the defendant. (See prior Grits coverage.)
Interview
Interview
Peter Neufeld of the national Innocence Project, discussing forensic science reform.
Errors and Updates
Errors and Updates
- Forensic hypnosis
- Austin City Council rejected police union contract
- DNA mixture evidence
The Last Hurrah
Reasonably Suspicious Podcast, December 2017, Hosted by Scott Henson and Amanda Marzullo.
Amanda Marzullo: Hi. This is Amanda Marzullo, and today I'm a little bit more unreasonably suspicious, because Scott announced that he would like to open the podcast with a holiday themed reading. I have no idea what we're getting into, so against my better judgment, Scott, go ahead and bring our listeners some holiday cheer.
Scott Henson: Thanks, Mandy. I would love to. We're calling this 'A Very Carpenter Christmas'.
Amanda Marzullo: Scott. You know you're ruining Christmas for all of us.
Scott Henson: Ruining it? Come on.
Amanda Marzullo: People sitting down, are they supposed to really think about government surveillance as they have a yuletide celebration?
Scott Henson: Hey, Christmas is all about surveillance when you really think about it. How do you think Santa compiles his naughty list?
Amanda Marzullo: Well that's Elf on the Shelf, Scott, I don't know what you're talking about.
Scott Henson: He's conspiring with Big Brother, there's really no other explanation. There's a whole Christmas component to the surveillance state apparatus that really doesn't get talked about is all I'm saying. And by the way, Rudolph the reindeer is definitely a Cyborg there's no doubt.
Amanda Marzullo: Yeah. I've never really questioned that, ever.
Scott Henson: Alright. I'm glad we got that settled. Hello boys and girls, and welcome to the December 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. Got a good show for you today with a couple of excellent guest interviews coming up soon. Mandy, what are you looking forward to on the podcast?
Amanda Marzullo: I'm looking forward to discussing Ex Parte Pena, which is one of the most divisive decisions we've seen from the Court of Criminal Appeals in a while.
First up, Scott's holiday poem was a reference to US v. Carpenter. A case in which the U.S. Supreme Court will decide whether the government must secure a search warrant under the fourth amendment in order to access cell phone location data, which is stored by your cell phone service provider. Analysts at SCOTUSblog predict that the court is likely to find a warrant requirement based on the Justice's comments and oral argument. Some listeners may be aware that Scott was part of a group called The Texas Electronic Privacy Coalition, which pushed unsuccessfully at the Texas legislature in 2013 and 2015 to require a warrant for the government to gather personal cell phone location data. So Scott, what do you think? Will the court require a warrant for cell phone tracking?
Scott Henson: Well the reason that SCOTUSblog thought that it was likely that the court would end up requiring a warrant is that Chief Justice Roberts came out pretty strongly, really more strongly ... he came out on a more civil libertarian position than the ACLU lawyer who was arguing the case. Justice Gorsuch, who is relatively new to the court, replaced Scalia, also came out pretty strongly on a warrant side, so when you start counting heads from the oral arguments, it really does look like that there are enough votes there to get to requiring a warrant for the first time.
And this is an incredibly huge deal that's flown under the radar for years. Most Americans really are not aware of the issue, or how important it is. But for everyone who owns a cell phone, all these smart phones everyone's carrying around with them. That is not just a phone, it's not just a computer, it's not just a camera or recorder, it is also a tracking device that allows your phone company and, by extension, the government to track everywhere you go. And the more cell towers there are, the more femto cells you see in offices and homes to get signals, the more accurate this location data gets.
Amanda Marzullo: Accurate or precise?
Scott Henson: Precise. That's right. You can tell more precisely where someone is. When there were fewer cell phone towers, the way you find someone is to triangulate. And so the more there are, you can triangulate in smaller and smaller spaces. In fact, it has gotten so extreme that in some cases, merchants ... department stores, say, are using location data within their stores so they can tell when customers are lingering by a certain display more often and using it for marketing purposes so the targeting ... the location tracking can now be done at such a finite level, even indoors you can have meaningful location data. As far as just traveling from place to place throughout your day, it's pretty accurate at this point.
So that's every person, and the question is, should the government have to have a warrant for this or can they just get it by asking your phone company for the information, which is called the Third Party Doctrine, that's what this sort of information has traditionally been released under, and a lot of people believe that this location data is just a lot more personal and reveals a lot more about you than just what phone numbers you dial, or who dialed you, or whatever you might get like with a pen register.
Amanda Marzullo: Yeah and I think some of the legal analysis has also pointed out that the Third Party Doctrine more and more, as we use technology differently, it's becoming an end run around the warrant requirements. The Supreme Court has said that you need a warrant to access information that's on your phone, but as you start to back up, information that is typically just on your phone is now in the cloud or online, that means that the government can also have access to your calendar, to your contacts, to your text messages.
Scott Henson: That's exactly right. And this is just another example of how the fourth amendment, which was written 230 years ago, isn't really completely up to the task of handling all the issues that confront us because of modern technology, and this is one of those moments when the court is going to have to really come up with a novel approach. They can't simply look to the text of the fourth amendment and see something that gets you to metadata from your cell phone. That wasn't considered in 1789 when all of this was first brought up.
Amanda Marzullo: Coming up, Scott and I discuss a strange case in which a cop planted drugs, but the Texas Court of Criminal Appeals upheld a conviction in an unusual split decision in which the dissenters made up the majority, but still lost. And Scott interviews the co-founder of the national Innocence Project, Peter Neufeld, discussing the role of state government in the 21st-century forensic-science-reform movement.
First though, new sex abuse allegations at the Gainesville State School have rocked Texas's youth prison system resulting in a wave of indictments. In response, the Legislature is considering a massive overhaul. To get a better sense of it all, Scott sat down with Brandi Grissom-Swicegood, a veteran news reporter and departing Austin bureau chief of the Dallas Morning News. She covered the Gainesville scandal in her final story for the Dallas news, before leaving to launch a second career, of all things, as a professional triathlete.
We'll publish Scott and Brandi's full conversation, separately, including her thoughts on leaving journalism at the height of her career, but for now, let's learn more about what happened in Gainesville and possible ways to prevent such abuse.
Scott Henson: Brandi, thank you so much for talking with me today. The very last story that you covered at the Dallas Morning News was about the Texas Juvenile Justice Department and the scandal at the Gainesville State School, where I guess now four employees have been indicted on sex assault related charges, and those of us who have been around as long as you and I have look at this and our heads just drop, and we think, "Oh my gosh, it's our Texas Youth Commission scandal all over again. Somebody bring in Nate Blakeslee. We need to-
Brandi Grissom: Get him back from New York.
Scott Henson: ... dredge up all the same issues and topics that we all slogged through ten years ago." Why don't you tell us what happened at Gainesville, and sort of walk us through this latest new episode.
Brandi Grissom: Sure. Unfortunately, there are a lot of things that have happened at Gainesville. The most salacious, I guess, are the most recent arrests. There were four TJJD correctional officers who were arrested under allegations that they were involved in sexual misconduct with youths on the campus. One of them was arrested last year, last fall, and he has since been sentenced to ten years in prison. The other three were arrested just in the last couple of months, I believe since August and September. One of the women who was arrested was allegedly pregnant with the baby of one of the youths that she had an affair with.
Scott Henson: Yikes.
Brandi Grissom: Yeah, she ... according to the emails that we saw and the text messages that she shared back and forth with the youth, she said that she wanted to have five of his children and she would allow him to name some of them.
Scott Henson: Oh good Lord. And how old was this youth, do we know?
Brandi Grissom: We're not exactly sure. I think ... He was over the age of eighteen, according to the records, but because he was obviously a person in custody, that's-
Scott Henson: Automatically-
Brandi Grissom: Automatically makes it a problem. But it wasn't just the sexual misconduct between the youths and the officers, there was also a psychologist who was told he could resign or be fired after there were allegations that he was asking some of the youths to masturbate in front of him and providing them with pornography. You know, one of the other things that we found out about is not just sexual assault, but also violence. We got reports from the Ombudsman's office about JCO's, correctional officers, offering to pay youths in cash and drugs for them to assault other youths on the campus.
Scott Henson: Right, that was astonishing. That, to me, was the piece that almost made this more ... not, I don't know, more egregious, but I don't how you quantify such things. But that sure was an eye-opener. And how wide spread was this? Was this a one-off or is it something that really was ongoing?
Brandi Grissom: Well we ... so in our reporting, we kind of debated about how much of that to include in our story because the Ombudsman's office didn't actually witness any of that happening, right? And they were able to interview several youths who independently gave similar stories about what had happened to them, and the TJJD wasn't able to verify any of those stories because the youths wouldn't give names because they were afraid that ... of retribution. So there isn't any ... there wasn't-
Scott Henson: They'd either been beaten up or they'd been paid.
Brandi Grissom: Right. So we went ahead and decided because so many youths of ... had independently had the same story, we figured ... we thought it was worth reporting.
Scott Henson: So where do we go from here, it's like we're having this deja vu moment and yet, a lot of the same legislatures are even still here in charge of some of these systems. Dutton in the House, or John Whitmire in the Senate, we've been through this once already, and so what options are there to try and do this differently or better? Because obviously we didn't solve the problem ten years ago.
Brandi Grissom: I think the advocates who I spoke with said, "When we went through this in 2007, law makers made a good start at this overhaul. But then they just stopped." So we got down to where we are now with five of these units, but there's still out in far flung areas, there's still these sprawling secure facilities that really are not conducive to the kind of rehabilitation that youths really need. So they ... law makers started this move toward the smaller home-like settings, making sure that kids are staying in their communities that are closer to families, closer to urban areas where they have access to resources that they need, but what the advocates will say is that they didn't finish the job. And, to them, finishing the job means closing down the rest of these facilities and really making a transition to home-like settings where kids can get the kind of access to sources that will really help them to rehabilitate, because they're still young and their brains are still forming and so if at any opportunity, we might have the chance to fix these kids lives and help them get on track, now is it.
Scott Henson: I think that's right, and the one thing I would add to that is that ten years ago, one of the really good things they did ... the legislature did was to create something called a 'blue ribbon panel' where they really did get some of the top minds, not just in Texas, but in the country, to come in and advise them and do a big report on how they should do these reforms. And they had this enormous laundry list. I looked it again after I saw your story, I pulled it back up to remind myself, "Okay, well what did we and didn't we do?" And they had dozens and dozens of recommendations and they did implement quite a few, but when they got to the ones that you're talking about, about the smaller facilities, closer to urban areas, it just stops, then there's a big part of the list that just, "No, no, no, no."
And just to give listeners a little refresher, the blue ribbon panel had recommended that we switch to something called the 'Missouri model', which is smaller units. All under 48 beds or less with higher staffing ratios, and basically more treatment, and occupational opportunities, and training, and all sorts of things that you're just not going to be able to give them out in Gainesville. And so we did have sort of a blue print for this, and it was frankly a money issue as to why they didn't do that. Someone would have to fork over and pay for it, and-
Brandi Grissom: Well I think you're right, it's a money issue. But it's also a political will issue because in a ... in order to do that, they have to close down the rest of these facilities. And in some of these small, rural towns where the facilities exist, the local economy relies on those facilities to continue operating. And shutting them down would be a big political fight for the law makers who live in those areas. And we saw it happen with the ones that have shut down. Remember what a big fiasco it was with Corsicana, when that shut down.
Scott Henson: That's right.
Brandi Grissom: So it's not something that law makers really want to jump into and it's going to require a lot of political fighting if it's going to get done.
Scott Henson: Next up, a game segment called 'Home Court Advantage' in which we discuss habeas corpus right out of the Texas Court of Criminal Appeals that raised eyebrows throughout the legal community. Let's start with Ex Parte Pena, which was an especially bizarre case, because five out of nine members of the court dissented to the outcome, and a four member plurality managed to dictate the result. Mandy, put that Ivy League law degree to work and explain this case and how we got to this weird outcome.
Amanda Marzullo: So, let's ... in reverse, let's start with the weird outcome. The reason why we're stuck with this sort of, a plurality decision here is that the five dissenters couldn't agree on a course of action, so four wanted to overturn the conviction, and the fifth judge wanted to re-man the case for further fact finding. So we're stuck with a plurality of four judges who wanted to preserve the conviction to hold.
What's extraordinary about this case is the fact pattern. So Mr. Pena pled guilty to a felony possession with intent to distribute of cocaine. There was no trial.
Scott Henson: But there was a very weird back story to that you're trying to say, so you're-
Amanda Marzullo: So going into that back part, what happened was ... is that, one of his arresting officers, Officer Carrion, was prosecuted for evidence tampering and drug trafficking. Essentially he was working for the local cartel, but also stealing from them at the same time. So he would basically swap out drugs that were being transported with sheet rock and replace it so that he was then able to profit from these stops.
Scott Henson: Right, so to be really clear, what happened was Mr. Flores allegedly had been hired to transport drugs, and there was a car parked and the cartel was going to put drugs in the backseat, right? In the ... in a cooler in the backseat, and the police officer knew about this plan, and while Mr. Flores was away from the car, he got in the car, took the actual drugs, planted 26 kilos of sheet rock laced with cocaine. And that's, in fact, what Mr. Flores was pulled over with when they got him for failure to signal a lane change. (Ed. note: Correction. The defendant's name was Pena, not Flores.)
Amanda Marzullo: Yes.
Scott Henson: And so, that's the weird part about this is that there is evidence that Mr. Flores had some intent to maybe be involved in drug trafficking, but there's more evidence that this cop actually stole the drugs himself and then framed him.
Amanda Marzullo: Well he was convicted for doing that. After ... so after Pena pled guilty, he was Mr ... the police officer who conducted the field test of the drugs, so that's basically the big evidence that was used in influencing Pena's decision to enter a plea was this test that was conducted by Officer Carrion that showed that the substance was cocaine. After Pena enters a plea, the federal authorities prosecute Carrion and test the purported drugs that were found in Pena's backseat. And they find that it is consisting largely of sheet rock and some ... in some of the packets, they had trace evidence of cocaine. So, in fact, Mr Pena was transporting less than a gram of cocaine, but he pled guilty to transporting 400 kilograms or more.
Scott Henson: And this is the crazy part, to me, is that the cocaine that he supposedly was convicted of transporting, was actually the sheet rock that was planted by the officer ... well, the majority in the Court of Criminal Appeals said, "Oh well, it's common practice to include the weight of diluent."
Amanda Marzullo: They didn't say it was common practice, basically what they said is that the law, statutorily, directs the state to include the weight of any dillutantor solvent used in a drug in determining the weight.
Scott Henson: Except in this case, it was a dillutantthat had been put there by a law enforcement officer. And that actually wasn't part of the drug dealer's making the drug, cutting the drug. It was part of law enforcement framing the defendant.
Amanda Marzullo: Or, as Scott Walker and Judge Richardson both sort of point out in their dissents, we're not talking about a dillutantof a substance that then just gives you more drugs to distribute, you're talking about basically sprinkling a trace amount of drugs on something that is not a drug. So basically in doing that, you're making the cocaine useless from a drug consumption standpoint. So it's ... I think, whether ... who put the drugs there or the solvent's there or not, it's an unworkable standard to say that sheet rock laced with cocaine is the same thing as cocaine that might be cut with something to increase your yield.
Scott Henson: But it really is even more egregious when it's law enforcement themselves actually putting it there and framing someone. I mean, that's-
Amanda Marzullo: Well it goes to the voracity of the whole prosecution, right? That's what makes it crazy, but if you look at the majority decision, they sort of pre supposed that Pena is still guilty of transporting a felony quantity of cocaine, based on this dillutantrule that it doesn't matter how diluted we're talking about, even if it's fundamentally-
Scott Henson: Or apparently, if the government added the dillutantinstead of the defendant. It apparently just doesn't matter. You still get to uphold the conviction. We're not going to actually ... at the state level, we're not going to hold anybody accountable. If the feds want to prosecute that cop, that's fine, but the Court of Criminal Appeals doesn't care. They think it's fine and dandy if you frame someone and then, "We're not going to shut down that conviction. We're going to do everything we can to uphold it." It was really pretty grotesque. I understand that the defendant here probably was intending to engage in trafficking, but to overlook this level of misconduct is really outlandish and in David Nuells's concurrence, he actually sided with the majority there.
He made a comment, "There's a palpable sense of injustice from allowing the conviction to stand when it is infected by such misconduct from a member of law enforcement." And then he turned around and did precisely that. So he said himself, "There's a palpable sense of injustice from the court's outcome." And even the people who sided with the court's outcome think that's true.
Amanda Marzullo: Next up, this year, the organization that I work for, The Texas Defender Service featured Peter Neufeld, co-founder of the National Innocence Project, and a member of the recently disbanded National Forensic Science Commission as our featured speaker. Scott sat down with Peter afterward to talk about the state of forensic science nationally, and the implication of states of the implosion of national forensic science reforms. We'll publish the full interview soon, but for now, here's Peter Neufeld explaining why state level improvements will remain the driving force for forensic reform in the foreseeable future.
Scott Henson: I wanted to start ... in your speech to the Texas Defender Service luncheon, you had talked about Texas having, really, I guess for the nation, sort of a surprising role in some of these innocence and forensics issues, and in particular about our forensic science commission and our junk science writ. I feel like Texans almost take these things for granted now. Can you give us, from your perspective, what that looks like from New York and from the national perspective?
Peter Neufeld: Sure. So, nationally, during the Obama administration, there was a major effort to look at particularly the forensic issues and think that we needed a national federal solution because, quite honestly, if you have some piece of evidence tested in the laboratory in Houston, or you have it in Buffalo, New York, that you get the same results just as they would in a clinical test. If you're sending in a sample of your kid's saliva to see whether or not she has some kind of disease, you'll get the same results from both labs, well the same thing should apply in crime laboratories.
And we got a lot of good things passed and introduced, a National Forensic Science Commission that I was appointed to by the President, a standard setting body, efforts to review the way the FBI agents and other federal agents testify about forensic disciplines. It's got to be consistent with scientific principles, which became particularly relevant after they found that in 96% of the hair cases, FBI agents gave erroneous testimony, which exceeded the limits of science. All of this was moving along. On four different fronts.
Then of course, we had the last election. And Jeff Sessions became the Attorney General. Last April, he abolished the commission, he abolished the effort to standardize a language with outside input from statisticians and scientists. He ended and suspended the review of the way agents testify in all other forensic disciplines, and basically he brought to a screeching halt any effort by the federal government to enhance the quality of forensic science in the criminal justice system.
The responsibility fell much more to the states, and in that regard, Texas is leading the country in two ways. Texas has a Forensic Science Commission, which is outstanding, which has lots of stakeholders involved. They've sort of put petty differences aside and they all have one thing in common, they want to see only the best forensic disciplines used in cases where life and liberty are at stake. And it's remarkable. New York had a commission before Texas and it's an awful commission. It's a commission completely dominated by law enforcement and prosecutorial interest, and the truth ... and principles play a back seat. So Texas should be applauded for that.
Number two, Texas got the so called junk science statute passed, which allows people to bring a writ to throw out an old conviction, which was based on what we now know as discredited forensic science. It's very important because science moves much more rapidly than law. And so many of these disciplines are disreputable. So many of these disciplines have never been validated, have never been determined empirically reliable, but nevertheless, if a judge lets it in, that's the end of the review.
Scott Henson: And just real quick, to expand on that, some of these disciplines are some of the most common ones used in law enforcement, from matching ballistics to fingerprinting, all these things that are basically pattern recognition. Someone looking at it closely. Now that we don't have the National Forensic Commission, where do we go from here? Because we basically had ... after the 2009 National Academy of the Sciences report, really the flaws in forensics had sort of been exposed and the commission that you were a part of was created to say, "Okay, what do we do now that we know that all these things aren't really that scientific?" It seems like we've left it up in the air, but the path to figure out what needs to happen next has vanished, at least at the national level.
Peter Neufeld: Oh it's certainly vanished at the national level. You had a commission, which for the very first time, had, in addition to stakeholders, half a dozen world class scientists, who were not involved in forensics, but are leading Physicists, Chemists, Biologists, Neuroscientists, all playing an active role. And of course with the end of the commission, the Justice Department is determined that we no longer want independent scientists to give us any input.
So you've replaced a body of 35 people, including a half a dozen independent scientists, with a forensic tsar who was a Deputy District Attorney from the mid west, who's not a scientist, and he and other people inside justice will unilaterally make all the decisions about forensics for the future.
Amanda Marzullo: This month, we're introducing a new segment called Errors and Updates', in which we update or correct past stories based on new information. This is our seventh podcast, so we can't update every story we've covered. No big errors to correct so far, at least as far as we know there are no errors to correct, but several stories are worth updating.
Scott Henson: First up, last month we discussed a capital case out of Dallas in which police hypnotized an eye witness who then changed her story. Closing arguments on a habeas corpus writ challenging the conviction but again December 18. Since then, we've discovered that forensic hypnosis is an actual certification track at the Texas Commission on Law Enforcement, with nearly a thousand officers trained in the technique since the late '80's. The Forensic Science Commission says there is no jurisdiction over forensic hypnosis, because it doesn't involve physical evidence. I've asked for more information about the program under the public information act, and we'll update more on this next month.
Amanda Marzullo: The Austin City Council rejected the police union contract, which was the subject of a three part segment in October. After 20 different organizations demanded their accountability measures and less spending worth for the police budget, notably, the debate wasn't just about police oversight. Numerous speakers, as well as council members, expressed concern that the cost of the contract over the years had squeezed out other government spending with public safety implications.
Scott Henson: After we discussed forensic errors related to DNA mixture evidence in our August and September podcasts, the National Institute for Standards and Technology announced in October that it would comprehensively analyze DNA mixture forensics. In their statement, NIST warned that these proprietary technologies 'if misapplied, could lead to innocent people being wrongly convicted'. The results are expected out by next summer, and although Mandy said we had no errors, after our DNA mixture segment in August, we did get a letter from one of the companies with proprietary software, Starmix, asking for a retraction. But their two page letter did not actually contest any specific, factual claim that we made, so I replied that we wouldn't correct anything unless they provide more detail. We have not heard back from them since.
Amanda Marzullo: We'll let you know if we do.
Scott Henson: That's right. Alright, now it's time for our rapid fire segment called 'The Last Hurrah'. Mandy, are you ready?
Amanda Marzullo: I'm ready. Are you ready?
Scott Henson: Ready to go.
Amanda Marzullo: A teacher who was raped by a Texas prison inmate blames under-staffing in Texas prisons for being left alone and assaulted. Meanwhile, the Houston Chronicle reported that guard turnover in Texas prisons increased last year from 23% to 28%, with some units having more than 50% turnover every year. Scott, what can be done about this?
Scott Henson: Really, the only thing that can be done is to reduce the amount of incarceration in the state so that we can close some of these under-staffed units. In the '90's, we put a lot of these units out in rural areas, and these places continued to populate, and they did not have enough workers to staff the units. Eventually, we're going to have to close some of those down and the only way to do that really is to incarcerate fewer people.
The number of people on Texas death row has declined from 460 in 1999 to 234 today. With only four new death sentences issued statewide in 2017. Meanwhile, no one from Harris County was executed or sentenced to death this year for the first time since 1976. Mandy, what's the significance here?
Amanda Marzullo: The significance is that the practice, when it comes to capital punishment in Harris County has caught up with public opinion. Harris County is a fairly moderate jurisdiction, where it's clear that the electorate is pro justice reform, however, it has had a prosecutor office that has been pretty aggressive, both in seeking convictions and trying to get the harshest punishment possible. What we see is a change in practice there that is aligning itself with words public.
Last one, the Dallas PD has launched a pilot program to respond to mental health calls with an interim disciplinary team led by mental health professionals instead of patrol officers. So, Scott, will this reduce the number of police shootings of mentally ill people?
Scott Henson: I really think it will. It was interesting, when David Brown, the former Dallas police chief left office, he gave a speech in which he said that police officers are being asked to do too many different things. They're being asked to solve too many different types of social problems, and mental health, mental illness is one of the biggest of those social problems that's been larded onto police officer's plate that they're really not equipped or trained to manage. So I think this is a really important development, and I think it will reduce the number of shootings.
All right, 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 Marzullo: And I'm Amanda Marzullo with the Texas Defenders Service. Good bye and thanks for listening.
Scott Henson: Subscribe to the podcast on iTunes, Google Play, Soundcloud, or YouTube. We'll be back next month with another episode of 'Reasonably Suspicious'. Until then, keep fighting for criminal justice reform. It's the only way it's going to happen.
- TDCJ prison understaffing and staff safety
- Death penalty use declining: A first for Harris County in 40 years
- Dallas pilot program de-escalates mental-health calls by sending medical staff instead of cops
Reasonably Suspicious Podcast, December 2017, Hosted by Scott Henson and Amanda Marzullo.
Amanda Marzullo: Hi. This is Amanda Marzullo, and today I'm a little bit more unreasonably suspicious, because Scott announced that he would like to open the podcast with a holiday themed reading. I have no idea what we're getting into, so against my better judgment, Scott, go ahead and bring our listeners some holiday cheer.
Scott Henson: Thanks, Mandy. I would love to. We're calling this 'A Very Carpenter Christmas'.
'Twas the night before Christmas and all through the home,
The smartphones pinged cell towers, ne'er did they roam.
Their location was fixed there all through the night,
Could be proven in court with no warrant in sight.
Then what to my wondering eyes did appear,
But Chief Justice Roberts like a red-nosed reindeer,
Leading the way for SCOTUS to hone
A warrant requirement for tracking your phone.
On Roberts, on Gorsuch, on Sotomayor.
Tracking us isn't what phones are for.
On Thomas, on Ginsburg, on Breyer, on Kagan.
Please give Fourth Amendment fans something to cheer again.
And clearly explain, before it goes out of sight,
Why not being tracked by our phones is a right.
Amanda Marzullo: Scott. You know you're ruining Christmas for all of us.
Scott Henson: Ruining it? Come on.
Amanda Marzullo: People sitting down, are they supposed to really think about government surveillance as they have a yuletide celebration?
Scott Henson: Hey, Christmas is all about surveillance when you really think about it. How do you think Santa compiles his naughty list?
Amanda Marzullo: Well that's Elf on the Shelf, Scott, I don't know what you're talking about.
Scott Henson: He's conspiring with Big Brother, there's really no other explanation. There's a whole Christmas component to the surveillance state apparatus that really doesn't get talked about is all I'm saying. And by the way, Rudolph the reindeer is definitely a Cyborg there's no doubt.
Amanda Marzullo: Yeah. I've never really questioned that, ever.
Scott Henson: Alright. I'm glad we got that settled. Hello boys and girls, and welcome to the December 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. Got a good show for you today with a couple of excellent guest interviews coming up soon. Mandy, what are you looking forward to on the podcast?
Amanda Marzullo: I'm looking forward to discussing Ex Parte Pena, which is one of the most divisive decisions we've seen from the Court of Criminal Appeals in a while.
First up, Scott's holiday poem was a reference to US v. Carpenter. A case in which the U.S. Supreme Court will decide whether the government must secure a search warrant under the fourth amendment in order to access cell phone location data, which is stored by your cell phone service provider. Analysts at SCOTUSblog predict that the court is likely to find a warrant requirement based on the Justice's comments and oral argument. Some listeners may be aware that Scott was part of a group called The Texas Electronic Privacy Coalition, which pushed unsuccessfully at the Texas legislature in 2013 and 2015 to require a warrant for the government to gather personal cell phone location data. So Scott, what do you think? Will the court require a warrant for cell phone tracking?
Scott Henson: Well the reason that SCOTUSblog thought that it was likely that the court would end up requiring a warrant is that Chief Justice Roberts came out pretty strongly, really more strongly ... he came out on a more civil libertarian position than the ACLU lawyer who was arguing the case. Justice Gorsuch, who is relatively new to the court, replaced Scalia, also came out pretty strongly on a warrant side, so when you start counting heads from the oral arguments, it really does look like that there are enough votes there to get to requiring a warrant for the first time.
And this is an incredibly huge deal that's flown under the radar for years. Most Americans really are not aware of the issue, or how important it is. But for everyone who owns a cell phone, all these smart phones everyone's carrying around with them. That is not just a phone, it's not just a computer, it's not just a camera or recorder, it is also a tracking device that allows your phone company and, by extension, the government to track everywhere you go. And the more cell towers there are, the more femto cells you see in offices and homes to get signals, the more accurate this location data gets.
Amanda Marzullo: Accurate or precise?
Scott Henson: Precise. That's right. You can tell more precisely where someone is. When there were fewer cell phone towers, the way you find someone is to triangulate. And so the more there are, you can triangulate in smaller and smaller spaces. In fact, it has gotten so extreme that in some cases, merchants ... department stores, say, are using location data within their stores so they can tell when customers are lingering by a certain display more often and using it for marketing purposes so the targeting ... the location tracking can now be done at such a finite level, even indoors you can have meaningful location data. As far as just traveling from place to place throughout your day, it's pretty accurate at this point.
So that's every person, and the question is, should the government have to have a warrant for this or can they just get it by asking your phone company for the information, which is called the Third Party Doctrine, that's what this sort of information has traditionally been released under, and a lot of people believe that this location data is just a lot more personal and reveals a lot more about you than just what phone numbers you dial, or who dialed you, or whatever you might get like with a pen register.
Amanda Marzullo: Yeah and I think some of the legal analysis has also pointed out that the Third Party Doctrine more and more, as we use technology differently, it's becoming an end run around the warrant requirements. The Supreme Court has said that you need a warrant to access information that's on your phone, but as you start to back up, information that is typically just on your phone is now in the cloud or online, that means that the government can also have access to your calendar, to your contacts, to your text messages.
Scott Henson: That's exactly right. And this is just another example of how the fourth amendment, which was written 230 years ago, isn't really completely up to the task of handling all the issues that confront us because of modern technology, and this is one of those moments when the court is going to have to really come up with a novel approach. They can't simply look to the text of the fourth amendment and see something that gets you to metadata from your cell phone. That wasn't considered in 1789 when all of this was first brought up.
Amanda Marzullo: Coming up, Scott and I discuss a strange case in which a cop planted drugs, but the Texas Court of Criminal Appeals upheld a conviction in an unusual split decision in which the dissenters made up the majority, but still lost. And Scott interviews the co-founder of the national Innocence Project, Peter Neufeld, discussing the role of state government in the 21st-century forensic-science-reform movement.
First though, new sex abuse allegations at the Gainesville State School have rocked Texas's youth prison system resulting in a wave of indictments. In response, the Legislature is considering a massive overhaul. To get a better sense of it all, Scott sat down with Brandi Grissom-Swicegood, a veteran news reporter and departing Austin bureau chief of the Dallas Morning News. She covered the Gainesville scandal in her final story for the Dallas news, before leaving to launch a second career, of all things, as a professional triathlete.
We'll publish Scott and Brandi's full conversation, separately, including her thoughts on leaving journalism at the height of her career, but for now, let's learn more about what happened in Gainesville and possible ways to prevent such abuse.
Scott Henson: Brandi, thank you so much for talking with me today. The very last story that you covered at the Dallas Morning News was about the Texas Juvenile Justice Department and the scandal at the Gainesville State School, where I guess now four employees have been indicted on sex assault related charges, and those of us who have been around as long as you and I have look at this and our heads just drop, and we think, "Oh my gosh, it's our Texas Youth Commission scandal all over again. Somebody bring in Nate Blakeslee. We need to-
Brandi Grissom: Get him back from New York.
Scott Henson: ... dredge up all the same issues and topics that we all slogged through ten years ago." Why don't you tell us what happened at Gainesville, and sort of walk us through this latest new episode.
Brandi Grissom: Sure. Unfortunately, there are a lot of things that have happened at Gainesville. The most salacious, I guess, are the most recent arrests. There were four TJJD correctional officers who were arrested under allegations that they were involved in sexual misconduct with youths on the campus. One of them was arrested last year, last fall, and he has since been sentenced to ten years in prison. The other three were arrested just in the last couple of months, I believe since August and September. One of the women who was arrested was allegedly pregnant with the baby of one of the youths that she had an affair with.
Scott Henson: Yikes.
Brandi Grissom: Yeah, she ... according to the emails that we saw and the text messages that she shared back and forth with the youth, she said that she wanted to have five of his children and she would allow him to name some of them.
Scott Henson: Oh good Lord. And how old was this youth, do we know?
Brandi Grissom: We're not exactly sure. I think ... He was over the age of eighteen, according to the records, but because he was obviously a person in custody, that's-
Scott Henson: Automatically-
Brandi Grissom: Automatically makes it a problem. But it wasn't just the sexual misconduct between the youths and the officers, there was also a psychologist who was told he could resign or be fired after there were allegations that he was asking some of the youths to masturbate in front of him and providing them with pornography. You know, one of the other things that we found out about is not just sexual assault, but also violence. We got reports from the Ombudsman's office about JCO's, correctional officers, offering to pay youths in cash and drugs for them to assault other youths on the campus.
Scott Henson: Right, that was astonishing. That, to me, was the piece that almost made this more ... not, I don't know, more egregious, but I don't how you quantify such things. But that sure was an eye-opener. And how wide spread was this? Was this a one-off or is it something that really was ongoing?
Brandi Grissom: Well we ... so in our reporting, we kind of debated about how much of that to include in our story because the Ombudsman's office didn't actually witness any of that happening, right? And they were able to interview several youths who independently gave similar stories about what had happened to them, and the TJJD wasn't able to verify any of those stories because the youths wouldn't give names because they were afraid that ... of retribution. So there isn't any ... there wasn't-
Scott Henson: They'd either been beaten up or they'd been paid.
Brandi Grissom: Right. So we went ahead and decided because so many youths of ... had independently had the same story, we figured ... we thought it was worth reporting.
Scott Henson: So where do we go from here, it's like we're having this deja vu moment and yet, a lot of the same legislatures are even still here in charge of some of these systems. Dutton in the House, or John Whitmire in the Senate, we've been through this once already, and so what options are there to try and do this differently or better? Because obviously we didn't solve the problem ten years ago.
Brandi Grissom: I think the advocates who I spoke with said, "When we went through this in 2007, law makers made a good start at this overhaul. But then they just stopped." So we got down to where we are now with five of these units, but there's still out in far flung areas, there's still these sprawling secure facilities that really are not conducive to the kind of rehabilitation that youths really need. So they ... law makers started this move toward the smaller home-like settings, making sure that kids are staying in their communities that are closer to families, closer to urban areas where they have access to resources that they need, but what the advocates will say is that they didn't finish the job. And, to them, finishing the job means closing down the rest of these facilities and really making a transition to home-like settings where kids can get the kind of access to sources that will really help them to rehabilitate, because they're still young and their brains are still forming and so if at any opportunity, we might have the chance to fix these kids lives and help them get on track, now is it.
Scott Henson: I think that's right, and the one thing I would add to that is that ten years ago, one of the really good things they did ... the legislature did was to create something called a 'blue ribbon panel' where they really did get some of the top minds, not just in Texas, but in the country, to come in and advise them and do a big report on how they should do these reforms. And they had this enormous laundry list. I looked it again after I saw your story, I pulled it back up to remind myself, "Okay, well what did we and didn't we do?" And they had dozens and dozens of recommendations and they did implement quite a few, but when they got to the ones that you're talking about, about the smaller facilities, closer to urban areas, it just stops, then there's a big part of the list that just, "No, no, no, no."
And just to give listeners a little refresher, the blue ribbon panel had recommended that we switch to something called the 'Missouri model', which is smaller units. All under 48 beds or less with higher staffing ratios, and basically more treatment, and occupational opportunities, and training, and all sorts of things that you're just not going to be able to give them out in Gainesville. And so we did have sort of a blue print for this, and it was frankly a money issue as to why they didn't do that. Someone would have to fork over and pay for it, and-
Brandi Grissom: Well I think you're right, it's a money issue. But it's also a political will issue because in a ... in order to do that, they have to close down the rest of these facilities. And in some of these small, rural towns where the facilities exist, the local economy relies on those facilities to continue operating. And shutting them down would be a big political fight for the law makers who live in those areas. And we saw it happen with the ones that have shut down. Remember what a big fiasco it was with Corsicana, when that shut down.
Scott Henson: That's right.
Brandi Grissom: So it's not something that law makers really want to jump into and it's going to require a lot of political fighting if it's going to get done.
Scott Henson: Next up, a game segment called 'Home Court Advantage' in which we discuss habeas corpus right out of the Texas Court of Criminal Appeals that raised eyebrows throughout the legal community. Let's start with Ex Parte Pena, which was an especially bizarre case, because five out of nine members of the court dissented to the outcome, and a four member plurality managed to dictate the result. Mandy, put that Ivy League law degree to work and explain this case and how we got to this weird outcome.
Amanda Marzullo: So, let's ... in reverse, let's start with the weird outcome. The reason why we're stuck with this sort of, a plurality decision here is that the five dissenters couldn't agree on a course of action, so four wanted to overturn the conviction, and the fifth judge wanted to re-man the case for further fact finding. So we're stuck with a plurality of four judges who wanted to preserve the conviction to hold.
What's extraordinary about this case is the fact pattern. So Mr. Pena pled guilty to a felony possession with intent to distribute of cocaine. There was no trial.
Scott Henson: But there was a very weird back story to that you're trying to say, so you're-
Amanda Marzullo: So going into that back part, what happened was ... is that, one of his arresting officers, Officer Carrion, was prosecuted for evidence tampering and drug trafficking. Essentially he was working for the local cartel, but also stealing from them at the same time. So he would basically swap out drugs that were being transported with sheet rock and replace it so that he was then able to profit from these stops.
Scott Henson: Right, so to be really clear, what happened was Mr. Flores allegedly had been hired to transport drugs, and there was a car parked and the cartel was going to put drugs in the backseat, right? In the ... in a cooler in the backseat, and the police officer knew about this plan, and while Mr. Flores was away from the car, he got in the car, took the actual drugs, planted 26 kilos of sheet rock laced with cocaine. And that's, in fact, what Mr. Flores was pulled over with when they got him for failure to signal a lane change. (Ed. note: Correction. The defendant's name was Pena, not Flores.)
Amanda Marzullo: Yes.
Scott Henson: And so, that's the weird part about this is that there is evidence that Mr. Flores had some intent to maybe be involved in drug trafficking, but there's more evidence that this cop actually stole the drugs himself and then framed him.
Amanda Marzullo: Well he was convicted for doing that. After ... so after Pena pled guilty, he was Mr ... the police officer who conducted the field test of the drugs, so that's basically the big evidence that was used in influencing Pena's decision to enter a plea was this test that was conducted by Officer Carrion that showed that the substance was cocaine. After Pena enters a plea, the federal authorities prosecute Carrion and test the purported drugs that were found in Pena's backseat. And they find that it is consisting largely of sheet rock and some ... in some of the packets, they had trace evidence of cocaine. So, in fact, Mr Pena was transporting less than a gram of cocaine, but he pled guilty to transporting 400 kilograms or more.
Scott Henson: And this is the crazy part, to me, is that the cocaine that he supposedly was convicted of transporting, was actually the sheet rock that was planted by the officer ... well, the majority in the Court of Criminal Appeals said, "Oh well, it's common practice to include the weight of diluent."
Amanda Marzullo: They didn't say it was common practice, basically what they said is that the law, statutorily, directs the state to include the weight of any dillutantor solvent used in a drug in determining the weight.
Scott Henson: Except in this case, it was a dillutantthat had been put there by a law enforcement officer. And that actually wasn't part of the drug dealer's making the drug, cutting the drug. It was part of law enforcement framing the defendant.
Amanda Marzullo: Or, as Scott Walker and Judge Richardson both sort of point out in their dissents, we're not talking about a dillutantof a substance that then just gives you more drugs to distribute, you're talking about basically sprinkling a trace amount of drugs on something that is not a drug. So basically in doing that, you're making the cocaine useless from a drug consumption standpoint. So it's ... I think, whether ... who put the drugs there or the solvent's there or not, it's an unworkable standard to say that sheet rock laced with cocaine is the same thing as cocaine that might be cut with something to increase your yield.
Scott Henson: But it really is even more egregious when it's law enforcement themselves actually putting it there and framing someone. I mean, that's-
Amanda Marzullo: Well it goes to the voracity of the whole prosecution, right? That's what makes it crazy, but if you look at the majority decision, they sort of pre supposed that Pena is still guilty of transporting a felony quantity of cocaine, based on this dillutantrule that it doesn't matter how diluted we're talking about, even if it's fundamentally-
Scott Henson: Or apparently, if the government added the dillutantinstead of the defendant. It apparently just doesn't matter. You still get to uphold the conviction. We're not going to actually ... at the state level, we're not going to hold anybody accountable. If the feds want to prosecute that cop, that's fine, but the Court of Criminal Appeals doesn't care. They think it's fine and dandy if you frame someone and then, "We're not going to shut down that conviction. We're going to do everything we can to uphold it." It was really pretty grotesque. I understand that the defendant here probably was intending to engage in trafficking, but to overlook this level of misconduct is really outlandish and in David Nuells's concurrence, he actually sided with the majority there.
He made a comment, "There's a palpable sense of injustice from allowing the conviction to stand when it is infected by such misconduct from a member of law enforcement." And then he turned around and did precisely that. So he said himself, "There's a palpable sense of injustice from the court's outcome." And even the people who sided with the court's outcome think that's true.
Amanda Marzullo: Next up, this year, the organization that I work for, The Texas Defender Service featured Peter Neufeld, co-founder of the National Innocence Project, and a member of the recently disbanded National Forensic Science Commission as our featured speaker. Scott sat down with Peter afterward to talk about the state of forensic science nationally, and the implication of states of the implosion of national forensic science reforms. We'll publish the full interview soon, but for now, here's Peter Neufeld explaining why state level improvements will remain the driving force for forensic reform in the foreseeable future.
Scott Henson: I wanted to start ... in your speech to the Texas Defender Service luncheon, you had talked about Texas having, really, I guess for the nation, sort of a surprising role in some of these innocence and forensics issues, and in particular about our forensic science commission and our junk science writ. I feel like Texans almost take these things for granted now. Can you give us, from your perspective, what that looks like from New York and from the national perspective?
Peter Neufeld: Sure. So, nationally, during the Obama administration, there was a major effort to look at particularly the forensic issues and think that we needed a national federal solution because, quite honestly, if you have some piece of evidence tested in the laboratory in Houston, or you have it in Buffalo, New York, that you get the same results just as they would in a clinical test. If you're sending in a sample of your kid's saliva to see whether or not she has some kind of disease, you'll get the same results from both labs, well the same thing should apply in crime laboratories.
And we got a lot of good things passed and introduced, a National Forensic Science Commission that I was appointed to by the President, a standard setting body, efforts to review the way the FBI agents and other federal agents testify about forensic disciplines. It's got to be consistent with scientific principles, which became particularly relevant after they found that in 96% of the hair cases, FBI agents gave erroneous testimony, which exceeded the limits of science. All of this was moving along. On four different fronts.
Then of course, we had the last election. And Jeff Sessions became the Attorney General. Last April, he abolished the commission, he abolished the effort to standardize a language with outside input from statisticians and scientists. He ended and suspended the review of the way agents testify in all other forensic disciplines, and basically he brought to a screeching halt any effort by the federal government to enhance the quality of forensic science in the criminal justice system.
The responsibility fell much more to the states, and in that regard, Texas is leading the country in two ways. Texas has a Forensic Science Commission, which is outstanding, which has lots of stakeholders involved. They've sort of put petty differences aside and they all have one thing in common, they want to see only the best forensic disciplines used in cases where life and liberty are at stake. And it's remarkable. New York had a commission before Texas and it's an awful commission. It's a commission completely dominated by law enforcement and prosecutorial interest, and the truth ... and principles play a back seat. So Texas should be applauded for that.
Number two, Texas got the so called junk science statute passed, which allows people to bring a writ to throw out an old conviction, which was based on what we now know as discredited forensic science. It's very important because science moves much more rapidly than law. And so many of these disciplines are disreputable. So many of these disciplines have never been validated, have never been determined empirically reliable, but nevertheless, if a judge lets it in, that's the end of the review.
Scott Henson: And just real quick, to expand on that, some of these disciplines are some of the most common ones used in law enforcement, from matching ballistics to fingerprinting, all these things that are basically pattern recognition. Someone looking at it closely. Now that we don't have the National Forensic Commission, where do we go from here? Because we basically had ... after the 2009 National Academy of the Sciences report, really the flaws in forensics had sort of been exposed and the commission that you were a part of was created to say, "Okay, what do we do now that we know that all these things aren't really that scientific?" It seems like we've left it up in the air, but the path to figure out what needs to happen next has vanished, at least at the national level.
Peter Neufeld: Oh it's certainly vanished at the national level. You had a commission, which for the very first time, had, in addition to stakeholders, half a dozen world class scientists, who were not involved in forensics, but are leading Physicists, Chemists, Biologists, Neuroscientists, all playing an active role. And of course with the end of the commission, the Justice Department is determined that we no longer want independent scientists to give us any input.
So you've replaced a body of 35 people, including a half a dozen independent scientists, with a forensic tsar who was a Deputy District Attorney from the mid west, who's not a scientist, and he and other people inside justice will unilaterally make all the decisions about forensics for the future.
Amanda Marzullo: This month, we're introducing a new segment called Errors and Updates', in which we update or correct past stories based on new information. This is our seventh podcast, so we can't update every story we've covered. No big errors to correct so far, at least as far as we know there are no errors to correct, but several stories are worth updating.
Scott Henson: First up, last month we discussed a capital case out of Dallas in which police hypnotized an eye witness who then changed her story. Closing arguments on a habeas corpus writ challenging the conviction but again December 18. Since then, we've discovered that forensic hypnosis is an actual certification track at the Texas Commission on Law Enforcement, with nearly a thousand officers trained in the technique since the late '80's. The Forensic Science Commission says there is no jurisdiction over forensic hypnosis, because it doesn't involve physical evidence. I've asked for more information about the program under the public information act, and we'll update more on this next month.
Amanda Marzullo: The Austin City Council rejected the police union contract, which was the subject of a three part segment in October. After 20 different organizations demanded their accountability measures and less spending worth for the police budget, notably, the debate wasn't just about police oversight. Numerous speakers, as well as council members, expressed concern that the cost of the contract over the years had squeezed out other government spending with public safety implications.
Scott Henson: After we discussed forensic errors related to DNA mixture evidence in our August and September podcasts, the National Institute for Standards and Technology announced in October that it would comprehensively analyze DNA mixture forensics. In their statement, NIST warned that these proprietary technologies 'if misapplied, could lead to innocent people being wrongly convicted'. The results are expected out by next summer, and although Mandy said we had no errors, after our DNA mixture segment in August, we did get a letter from one of the companies with proprietary software, Starmix, asking for a retraction. But their two page letter did not actually contest any specific, factual claim that we made, so I replied that we wouldn't correct anything unless they provide more detail. We have not heard back from them since.
Amanda Marzullo: We'll let you know if we do.
Scott Henson: That's right. Alright, now it's time for our rapid fire segment called 'The Last Hurrah'. Mandy, are you ready?
Amanda Marzullo: I'm ready. Are you ready?
Scott Henson: Ready to go.
Amanda Marzullo: A teacher who was raped by a Texas prison inmate blames under-staffing in Texas prisons for being left alone and assaulted. Meanwhile, the Houston Chronicle reported that guard turnover in Texas prisons increased last year from 23% to 28%, with some units having more than 50% turnover every year. Scott, what can be done about this?
Scott Henson: Really, the only thing that can be done is to reduce the amount of incarceration in the state so that we can close some of these under-staffed units. In the '90's, we put a lot of these units out in rural areas, and these places continued to populate, and they did not have enough workers to staff the units. Eventually, we're going to have to close some of those down and the only way to do that really is to incarcerate fewer people.
The number of people on Texas death row has declined from 460 in 1999 to 234 today. With only four new death sentences issued statewide in 2017. Meanwhile, no one from Harris County was executed or sentenced to death this year for the first time since 1976. Mandy, what's the significance here?
Amanda Marzullo: The significance is that the practice, when it comes to capital punishment in Harris County has caught up with public opinion. Harris County is a fairly moderate jurisdiction, where it's clear that the electorate is pro justice reform, however, it has had a prosecutor office that has been pretty aggressive, both in seeking convictions and trying to get the harshest punishment possible. What we see is a change in practice there that is aligning itself with words public.
Last one, the Dallas PD has launched a pilot program to respond to mental health calls with an interim disciplinary team led by mental health professionals instead of patrol officers. So, Scott, will this reduce the number of police shootings of mentally ill people?
Scott Henson: I really think it will. It was interesting, when David Brown, the former Dallas police chief left office, he gave a speech in which he said that police officers are being asked to do too many different things. They're being asked to solve too many different types of social problems, and mental health, mental illness is one of the biggest of those social problems that's been larded onto police officer's plate that they're really not equipped or trained to manage. So I think this is a really important development, and I think it will reduce the number of shootings.
All right, 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 Marzullo: And I'm Amanda Marzullo with the Texas Defenders Service. Good bye and thanks for listening.
Scott Henson: Subscribe to the podcast on iTunes, Google Play, Soundcloud, or YouTube. We'll be back next month with another episode of 'Reasonably Suspicious'. Until then, keep fighting for criminal justice reform. It's the only way it's going to happen.
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12 comments:
Right on as always Grits. I am a big fan for sure. Merry Christmas dude! will be posting parts of this here: http://sexoffenderfaq.blogspot.com/p/new-blogs-part-8-updated-august-30-2017.html
Merry Christmas, Amanda and Scott. Although you may sometimes feel like Sisyphus pushing a rock up the mountain, your work does make a difference. Keep up the good work for real justice in Texas.
I think a lot of weird stuff happened in that Pena case, but I don't think him being "framed" is one of them. I mean, basically someone stole the drugs that Pena had agreed to transport, and replaced them with a similar quantity (including adulterants and dilutants). If the cop had put MORE drugs in the back of the car (i.e., in an amount that would increase the penalty range), then I might agree that with you that he was "framed" in the traditional sense. But you seem to think that there was actually less product (which is probably untrue as a matter of the A&D situation, but certainly true if you ignore the sheet rock).
Again, Scott, you seem to think Pena got railroaded because of this A&D business. But, as even Amanda has explained, that's just the law. It may yield harsh results, but I'm not sure how to redraft a statute that includes punishing people for drug possession when those drugs have been traditionally "cut" with other substances, but excludes punishment for those who possessed some tiny "unusable" percentage of the drug (vs. the A&D). I suppose you could come up with a percentage as a floor, but that would be just as arbitrary, and you might be unhappy with prosecutions of those people who possess one percent more drugs than the floor.
Most crime labs nowadays do not check for purity (by percentage, etc.). It costs too much to test and is more time consuming.
Put an ounce of liquid meth in a gallon water bottle full of water and you get charged for the weight of the gallon water/meth mixture.
@James S - when a police officer a) packages up sheetrock to pretend it's drugs, b) sprinkles cocaine on one corner to trigger the field test, c) performs the field test himself to complete the fraud, then d) is convicted of evidence tampering in the case, that to me is framing a defendant. Intentionally, and unequivocally.
More than one thing can be true. The defendant can be both a victim and an offender. However in this case, because of the officer's miscodnduct, it's impossible to say the true extent of the defendant's culpability - no one ever weighed the cocaine the cop took out of the car. The "drugs" that the CCA allowed the conviction to be based on were the packages prepared by the officer and planted in his car to frame the defendant.
Well, you'd be right if a), b), c), and d) were the only things that happened in this case. But there's one more -- the cop actually exchanged the package for other drugs. And, as I've said before, it seems to be the same bulk amount (if not the same proportion of drug-to-sheet rock). So as far as Mr. Pena was concerned, he was transporting an ice chest that had drugs in it that was put there by someone in the organization. It turns out there were actually two people from the organization that put two different chests in there -- but that's irrelevant. He's just as guilty whether the cop showed up or not.
Yes, it would have been nice for him if the cop just stole the drugs and didn't leave any behind. But we can't always get what we want for Christmas.
@James S, You say "it seems to be the same bulk amount." Based on what evidence do you make that claim? The drugs the cop stole were never weighed! You (and the CCA plurality) are assuming facts not in evidence.
Why bother including adulterants anyhow? If I sell "Cocaine" that is 49% or less actually cocaine then my intent seems not to sell Cocaine but to commit fraud against my customers.
Like the difference between crab and krab.
I think that's a reasonable assumption based on the fact that the dealers put a "black ice chest" in the back seat, and Carrion replaced it with a "large rubbermaid ice chest." Now, if I were a double-dealing drug guy, it would be stupid to replace the ice chest with one that was a different size -- as that would probably raise Pena's suspicions, causing him to do something unexpected. And it would be even dumber for Carrion to steal a small amount of drugs and replace it with a larger amount (which, I think, you're implying). One can only assume that Pena saw both ice chests and never told anyone (unless I missed something) that the ice chests were different.
I really don't mean to be argumentative, and it's quite rational for both you and Judge Richardson (in his dissent) to point out that sprinkling a little bit of coke on top of 26 kilos of sheet rock is not a reasonable application of the A&D statute. I don't agree, but I'm more of a plain-text-of-the-statute guy.
Finally, I just don't agree that Mr. Pena is a "victim" here. If Carrion had just stolen the drugs and replaced it with nothing, he would certainly be a beneficiary of Carrion's actions. But the fact is, he agreed to transport drugs, and he was arrested in possession of drugs. Just because someone replaced one set of drugs with another doesn't make him innocent.
Though I still think he should have been told about Carrion, and his plea was therefore involuntary....
Was it ever confirmed that the ice chest the cop stole from the back seat actually contained illegal drugs? Pena might have thought he was transporting drugs and therefore might have confessed that he was doing so. But if the ice chest actually contained bunk (before the cop took it, not knowing it was bunk) then Pena hasn't actually done anything illegal. The cop planted the drugs and tampered with a crime scene.
It's similar to the exonerations of some of the people in Houston when they confessed to carrying drugs because the faulty drug test indicated so. The lab test found that they were carrying bunk, and not the drugs they thought they were carrying. They thought they had drugs on them, confessed, but were later exonerated because they didn't have actual drugs.
Pena's plea is a false confession, and his ineffective defense attorney is to blame.
That's an interesting analogy, but I think the difference is that that what he eventually pled guilty to possessing WAS actually a controlled substance, not something that was fake. (Yeah, it was a ridiculously low proportion, but as discussed above, that doesn't matter).
For me (and I'm sure there's room for disagreement), it wouldn't matter that the original ice chest contained nothing, or that -- for that matter -- they never put anything at all in the back of his car. The point is that he agreed to transport drugs and an agent of the drug dealers he contracted with (Officer Carrion) put drugs in the back of the car. I don't think it matters when that happened or what monkey business took place in between his agreement and his arrest. This is because possession of a controlled substance is relatively uncomplicated. You have to (1) actually have contraband; and (2) know that it is contraband. That fact that he pled guilty satisfies number two, and we know from lab tests that number one is true.
Finally, I don't think that Carrion was guilty of tampering with evidence, as defined under the statute (for the reasons given in the opinion). But even if he were, I also don't think it would matter as a function of Pena's guilt (as opposed to him being able to get the evidence excluded).
Whoops, that anonymous comment shoulda been me.
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