Tuesday, March 13, 2018

Additions to Grits' Reading Pile: On prosecutors, pretrial detention, plea bargaining, and more

Let's add a few items to Grits' reading pile, and perhaps to your own. First,

On pretrial detention
On Prosecutors
David Alan Sklansky says the least understood "problem with prosecutors" is the ambiguity of their role. Here's a brief item on "Post-conviction Prosecutorial Duties."

On Forensics
Brandon Garrett and Chris Fabricant analyzed 229 Daubert rulings (admitting scientific or expert evidence) purporting to assess the "reliability" of forensic evidence and found that the "reliability test" is seldom applied and almost never used to exclude potentially unreliable testimony.

On Instructing Juries
See an interesting proposal for fixing known flaws in common jury instructions surrounding "beyond a reasonable doubt" by articulating for their jury their relative strength compared to lower burden-of-proof thresholds, like "preponderance" or "clear and convincing."

On the Fourth Amendment
The title evokes one of the most vexing legal questions of the digital age: "The Third Party Doctrine and the Future of the Cloud." Can't wait for Carpenter to come out!

On Plea Bargains
A coupla items here:
On Competency Restoration
This was a long-time Grits hobby horse to which of late I haven't had the bandwidth to pay much attention. But I've long been a fan of at least testing outpatient models - mainly as an expression of my lack of confidence that the Texas Legislature will ever sufficiently fund forensic beds at state mental hospitals - and have regretted that Texas never doubled down on that strategy after testing it in pilot programs. So I'm interested to read this academic offering from Susan McMahon out of Georgetown Law titled, "Reforming Competence Restoration Statutes: An Outpatient Model." Texas' failed system for competency restoration at state mental hospitals has been underfunded to the point of crisis since at least the earliest days of this humble opuscule. Maybe she can point to a better path.

Monday, March 12, 2018

Pop quiz on forensics

A recent research paper from Jonathan Koehler, a Northwestern University law professor, titled "How trial judges should think about forensic science evidence," opened with a short quiz. Grits readers should be well educated on these topics, but let's see how you do:

"Here is a forensic science test for you. Please answer each of the three questions below True or False.

"1. Scientific tests conducted over the past 100 years have repeatedly demonstrated that everyone has a unique set of fingerprints.

"2. Recent scientific studies show that the chance that DNA samples from two different people will be identified as a “match” by a competent, well-trained DNA examiner is less than one in a million.

"3. Data from scientific tests conducted over the past few decades provide a reliable basis from which to estimate the accuracy of most forensic methods that have been admitted in U.S. courts.

TDCJ Youthful Offender Program accused of 'culture of cover-up'

Readers will recall that, after more staff-on-youth sex-assault scandals were uncovered at Texas Juvenile Justice Department facilities, the new executive director immediately sought to certify 35 youthful offenders as adults and send them to TDCJ, even though staff, not inmates, had caused all the scandals that forced her predecessor's ouster.

So where did she want to send those 35 kids? To the Youthful Offender Program at TDCJ. And now Lauren McGaughy at the Dallas News - in a story called, "'Culture of Coverup': Warden forced to retire from prison where whistleblower says teen inmates abused" - has pulled back the curtain on how youth are treated there, thanks to the diligent reporting of misconduct, abuse, and neglect by a now retired program supervisor* who formerly worked there. Read the whole story, excerpts won't do it justice. TDCJ has fired the warden and moved the youth to a unit in Huntsville.

What does it say about the state's priorities that, rather than solve problems of violence and abuse by staff on youth inmates, the first big policy shift from the new TJJD leadership was to ship off 35 kids to another environment characterized by abuse, fear, and predatory staff?

What exactly are we solving for here? Is the goal to protect the kids or to generate a headline where pols and bureaucrats can say, "We're changing something in response, so everyone can move on. Problem solved." Except the change didn't correlate to the problem and may create even bigger problems for those 35 youth.

Everyone essentially knows what needs to be done. Grits has discussed the expert consensus on the topic before (see below), and an extensive recent blog post from Texans Care for Children elaborated even more.

Bottom line, we need to move away from large units sited in rural areas far away from services and youth inmates' families and adopt the same model Gov. Scott Walker has embraced for Wisconsin, creating smaller, treatment-oriented facilities closer to urban areas following what's known as the "Missouri model." That's the same recommendation made by a blue-ribbon panel convened by the Texas Legislature eleven years ago after another sex-abuse scandal at Texas youth prisons. The National Conference of State Legislators recently issued similar advice.

Everyone basically agrees with this approach except Governor Abbott, his new appointee at TJJD, and handful of legislators. But they're the only ones who can make the necessary changes!

That's the conundrum. Fixing the problem will require spending more money on the same number of kids (or even fewer, if juvenile crime continues to go down), because there are fixed costs involved with creating a new system of smaller facilities. Plus, the current ones are understaffed, suffering from the highest turnover rate of any state agency.

(N.b., one anticipates private contractors will want in on this action, too, and state facilities have a terrible track record to try to defend, so increased privatization of youth services is likely on the horizon if reform succeeds. That would reduce the initial sunk costs but create a host of additional issues.)

We're not going to make youth safe by shipping them off to TDCJ or extending that agency's control to TJJD. Wherever they're housed, more must be done to keep youth safe from both predatory staff and from being victimized by other offenders. But the mistake in the past has been to assume keeping them safe is enough. It isn't. The system is failing on many levels and, at this point, it's hard to see the resistance to following best practices recommended by basically everybody who's deeply thought about it.

From shifting the Missouri model, raising the age of criminal responsibility from 17 to 18, etc., pretty much everyone knows what the best policies are for protecting and reducing recidivism among youth. But the policies instead are being created based on what's best for the politicians who want to avoid accepting responsibility for bad outcomes on their watch. As long as that continues to be the case, this pattern of abuse-scandal-and-blame will continue to arise every few years. Convincing the public to ignore a problem is not the same as solving it.

MORE: See Texas Appleseed's response to the latest scandal at TDCJ's Youthful Offender Program, titled, "Young Offenders Need Developmentally Appropriate Rehabilitation."

See prior, related Grits coverage:
* The original version of this post said the whistleblower was a correctional officer. In fact, she was a supervisor for a youth program.

Thursday, March 08, 2018

Texas CCA and DA election roundup

Let's update the Texas DA and Court of Criminal Appeals races we discussed in the February podcast, as well as others that deserve mention. It was a rough primary for incumbents, and a number of open seats created opportunities for outsider candidates to elbow their way past more establishment figures.

Keller narrowly prevails
First, Sharon Keller squeaked by in the race for Court of Criminal Appeals Presiding Judge, garnering just 52 percent of the GOP primary vote. She is without question the most and maybe only vulnerable statewide Republican in Texas, assuming there's any sort of "blue wave" occurring in November, as touted in the national press. If I were a Dem strategist looking for a blue victory in a statewide race, I'd be putting real money behind her general-election opponent, Judge Maria Jackson out of Houston. As my great grandfather liked to say when I was a child, there ain't never been a horse that can't be rode, never been a cowboy can't be throwed. That said, the most likely outcome is that Keller will prevail in November, and by the time her next term ends, she'd have spent 30 years as Presiding Judge of that court and the intellectual leader of what Grits has dubbed the Government-Always-Wins (GAW) faction.

Least qualified candidate emerges from GOP CCA primary, again
In the race to replace Judge Elsa Alcala, Michelle Slaughter defeated two more qualified candidates because she ran as a cultural conservative touting culture war memes and garnered the most grassroots endorsements. Grits might have preferred Jay Brandon over Dib Waldrip, but either were qualified for the spot. But for the second cycle in a row, GOP primary voters ignored the most qualified candidates and picked the person they thought was the most ideologically conservative. According to the Texas Tribune, "She was the only one of the three without a criminal appellate background, having worked in civil law before becoming a judge. But she also had the most conservative endorsements, including backing by Empower Texans, Texas Right to Life and numerous local Tea Party groups." There's no Democrat running in this race.

Progressive power remains a phantom in Dallas DA race
National liberal activists and progressive organizations which haven't traditionally participated in Texas DA races tried to play the role of Queen-maker in Big D, backing Elizabeth Frizell against liberal establishment stalwart John Creuzot. Creuzot won by 516 votes. Though it was close, the outcome calls into question the clout of liberal groups backing his opponent. Readers will recall the same thing happened in Houston in 2016, with liberal groups backing Morris Overstreet in the primary before turning to support Kim Ogg in the fall. Grits' takeaway: Criminal-justice reform continues to enjoy bipartisan support in Texas - there are strong supporters in both parties - but perhaps because it's become a bipartisan issue, it's not yet become an axis along which Democratic primary elections are decided. Creuzot won the right to face incumbent Faith Johnson in the general election. This'll be one of the state's marquis down-ballot races.

MORE: Reflecting on the race, in which he and his PAC supported Frizell, New York writer and activist Shaun King describes what it's like for a bunch of amateurs who learned about politics in books to get schooled by "crafty" Texas political consultants who understand how to "game the system" (read: run winning campaigns).  Don't sweat it, Shaun, it's how you learn. Politics here is blood sport and enthusiasm isn't always sufficient to trump skill. Besides, Creuzot is a good guy. When "progressive" Ds from out of state want to demonize someone like him in favor of a candidate whose record is more sparse and whose policy positions are essentially identical, long-time reformers like me have to wonder why we should choose to die on that particular hill? Of all the DA candidates in this roundup of whom I'd think, "We need to keep that person out of office," he wouldn't crack the top five. For instance ...

Bexar voters done with the crazy
Nico Lahood lost. Thank heavens.

Abel Reyna loses in embarrassing fashion
In the end, the Twin Peaks case cost him the race, which was won by a guy who just moved back to town from Dallas last year after 3 decades away. On the day of the election, voters awoke to headlines declaring a visiting judge had scolded Reyna thusly for using video from the case in his campaign ads:
“The way you have handled this case is absolutely shameful and misleading to the citizens of this county,” Judge Doug Shaver told Reyna on Monday. “So I know the election is tomorrow, and we can’t do anything about it up to this point. But you should be ashamed of yourself, and if I could enforce any of the gag order against you, I would and (would) put you in custody. But since I can’t, you are excused.”
And by the end of the day, the voters had excused him as well.

Tyler establishment fails to quash Tea Party insurgent
Perhaps (almost) equally significant, the establishment candidate for District Attorney in Smith County lost to a 35-year old upstart who accused the sitting DA of corruption and was backed by local Tea Party figures . Jacob Putman defeated a candidate recruited by the sitting DA and his allies to run against him, and overcame the incumbent releasing opposition materials critical of his prosecution record at the height of the campaign. This is a significant snub for the Jack-Skeen-Matt-Bingham cohort which has run the DA office there for decades in my hometown.

DWI cuts both ways in DA races
In Victoria, voters ousted an incumbent who'd sought to prove his tough-on-crime credentials by taking every DWI case to trial. Challenger Constance Filley Johnson defeated the incumbent in a campaign critical of this grandstanding brand of prosecutorial overreach, and voters overwhelmingly sided with her.

In Walker County, however, Will Durham won by running against the incumbent's First Assistant, with criticisms mainly centering around alleged leniency on DWI cases. The incumbent, David Weeks, had allowed some DWI cases to be pled down to alternative offenses,  which circumstantially points to prosecutors allowing defendants to avoid being assessed the (ignominious) Driver Responsibility surcharge. Walker County is the epicenter of the Texas prison system and the policy likely was implemented so that prison-guard employees with DWIs on their record could keep their driver licenses and be able to legally get to work. Whether getting "tougher" on these cases affects local correctional officer employment remains to be seen, but barring abolition of the surcharge, in 2-3 years it wouldn't surprise me if Durham's git-tuff policies come back to bite Walker County voters or even TDCJ itself, just as happened in Victoria.

A vote for DAs independence from law enforcement
In Fort Bend County, a 71-year old retired judge named Cliff Vacek won the GOP primary, but the real contest there will be in November, where general elections are becoming tighter and Democrats have a real shot. Debates in the GOP race centered around independence of the office, with Vacek's opponent claiming he'd have a closer relationship with local law enforcement agencies, and Vacek insisting that the DA office must remain independent, working with local law enforcement but not becoming beholden to them. Interesting terms of debate: These aren't themes which came up in the other races.

Death penalty decline an issue in Wichita DA race
In Wichita County, incumbent Maureen Shelton was ousted by John Gillespie in a campaign which centered around Shelton's reticent to pursue the death penalty, a high turnover rate among attorneys in the office, and Shelton's decision to serve as an administrator instead of personally trying cases in the courtroom.

Incumbents incumbenting
In Denton County GOP primary, the incumbent Paul Johnson defeated a challenger who'd called him soft on crime. And in Hidalgo County's Dem primary, one-term incumbent Ricardo Rodriguez easily quashed a quixotic campaign against a strident but politically isolated and self-funded challenger who'd accused him of corruption. Galveston DA Jack Roady defeated a challenger who'd accused him of being "soft on crime."

MORE: The incumbent in Gregg County (Longview) also lost, although the race doesn't seem to have been run along any reform-vs-tuff-on-crime axis, like some of the others.

AND MORE (3/12): From the Texas Tribune: "Half of Texas' sitting district attorneys in contested primaries lost. What does that mean?"

AND EVEN MORE: See a roundup of primary results for prosecutors from the Texas District and County Attorneys Association.

Monday, March 05, 2018

His chief weapons are surprise and fear

Nobody expects the Spanish Inquisition, the actors in Monte Python insisted, and Grits must admit I didn't expect Texas judges to begin adopting torturous means to extract the answers they want from defendants before them.

But then, I've never met Judge George Gallagher from the 396th District Court in Tarrant County, whose chief weapons are surprise and fear, fear and surprise. ... Live and learn.

In the category of "things that make you go 'Hmmmmm,'" here's the crux of an opinion out of the El Paso Court of Appeals
Because the trial transcript clearly shows that the trial judge, during a heated exchanged with the defendant outside the presence of the jury, ordered his bailiff to electrocute the defendant three times with a stun belt—not for legitimate security purposes, but solely as a show of the court’s power as the defendant asked the court to stop “torturing” him—we harbor grave doubts as to whether Morris’ trial comported with basic constitutional mandates. As such, we have no choice but to overturn Morris’ conviction and remand for a new trial.
See briefs from the appellant and the State for all the lurid details, and a bevy of self-serving arguments by the Tarrant DA office which the appeals court rejected. 

It remains to be seen whether the prosecution will seek review from the Court of Criminal Appeals, much less what that court might do. Grits could see a tight, 5-4 decision either way, or maybe 6-3 to uphold, just because the facts are so bad. But you never know. And depending on the outcome of the race to replace Judge Elsa Alcala, that projected vote count could change.

Friday, March 02, 2018

Texas judicial elections broken but far from radar screen of legislative power brokers

Here are a few odds and ends that merit Grits readers' attention even if I haven't found time to author full posts on the topic.

Dallas DA race coverage
InJustice Today has a good piece summarizing the race from a reformer perspective.

Texas judicial elections broken but far from radar screen of legislative power brokers
The Baker Institute makes the case against electing Texas judges. Is anybody listening? According to the author, Mark Jones, "Texas is one of only two states that initially elects and then re-elects its judges in partisan elections where voters have the option of casting a straight-ticket vote." Notably, one of Texas' most distinguished jurists, Elsa Alcala is voting with her feet, leaving the Court of Criminal Appeals in large part because the election system is broken, as she told the Texas Tribune:
“Either [people] don’t vote in the race, or they vote based on familiar-sounding names,” Alcala said. “It’s not an educated vote in many instances.”

It’s largely why she’s leaving the court. Alcala was appointed to her position in 2011 by former Gov. Rick Perry, then elected to a six-year term the next year. When she announced in 2016 that she wouldn’t run again, she said a main reason was the “random and unreliable” results in partisan judicial elections.
See coverage of both competitive CCA primaries from the Austin Statesman. Meanwhile, out of state money is fueling a judicial candidate in the GOP primary for the Austin 3rd Court of Appeals who's running on a Trumpian, culture-war-style platform. And another Tribune story suggests qualified judges with Hispanic surnames have trouble making it through the GOP primary.

Systemic problems at juvenile justice agency
Texans Care for Children has a detailed blog post up on problems with Texas youth prisons and how to solve them. Notable quote: "When news breaks of staff abuses in these facilities, or even youth misbehaving, it's immediately labeled a crisis or a scandal. But in reality, it's not a new crisis. We are looking at a systemic problem."

More unconstitutional court fees defenestrated

On Twitter, the Texas District and County Attorneys Association mocked a defendant represented by the Harris County Public Defender for winning a court-fee reduction of about $13. And if that's all there were to it, they'd be right to criticize the court for wasting its time.

But in reality (which in general lies FAR away from the TDCAA twitter feed), the Court of Criminal Appeals overturned a lower court's finding, holding that portions of the "consolidated court cost relating to 'law enforcement officers standards and education,' 'comprehensive rehabilitation,' and 'abused children’s counseling' were all facially unconstitutional" and couldn't be applied to anyone. To boot, the 8-1 margin means the ruling is unlikely to change if one or even two judges are replaced during this election cycle.

So sure, if we were just talking about one defendant getting $13 back, it might be a small thing. But reducing all consolidated court costs by about 10 percent and eliminating those specific funding streams? That's a big deal no matter how much snark and disdain arises from prosecutors.

Jani Maselli-Wood, a former Republican CCA candidate who works at the Harris County Public Defender Office, has been knocking down these unconstitutional fees one by one after they were exposed in a legislatively mandated report written by her husband, Ted Wood, when he was at the Office of Court Administration.

TDCAA sees that marital link as evidence of conspiracy, but if eight members of the CCA including three of the four members of the Government-Always-Wins faction, agreed the fees are unconstitutional (Grits is now counting Yeary in that GAW cohort), it seems to me any conspiracy was a good thing. Why would prosecutors or anyone else think it's a good idea to keep unconstitutional laws on the books?

Tuesday, February 27, 2018

On the institutional basis for ineffective assistance: Travis Jail Reduction Docket

Travis County will make unspecified changes to their "jail reduction docket" to counter criticisms that it operated as a plea mill coercing guilty pleas out of jailed misdemeanor defendants in exchange for their freedom. Misdemeanants who couldn't make bail would be herded into the courtroom in bunches, meet their lawyer for the first time sitting on a bench in the courtroom, and typically plea guilty in exchange for time served and their freedom. As Grits noted earlier, this has been going on for at least two decades.

In their defense, "Since 2014, there has been a 50 percent increase in defendants who have received a personal bond at Jail Reduction Docket." So use of personal bonds for misdemeanants has been increasing. Judge Elisabeth Earle said judges want to do more personal bonds but "Sometimes lawyers don’t want to present them." (Read: Sometimes Austin criminal defense lawyers provide ineffective assistance to their clients, and judges pretend there's nothing we can do.)

Otoh, there may be a practical reason lawyers aren't going the extra mile: The Statesman article noted that, "pay for attorneys who resolve cases in the jail reduction court was lowered in 2016 from $275 to $175," which hardly bodes well for quality representation but which likely does reflect (or even overstate) the amount of time presently spent on each case. Perhaps the problem is simply that nobody's getting paid enough to investigate a client's background even minimally to make the case for a personal bond?

Of course, just because there's a structural, institutional "nudge" embedded in the system encouraging ineffective assistance doesn't excuse it. Attorneys are professionals obliged to exhibit at least minimal levels of competence at their craft. However, the Jail Reduction Docket seems to rely and thrive on underpaid attorneys not putting up much of a fuss.

All of which to me constitutes further evidence that Travis County needs a public defender if the commissioners court wants competent representation for the indigent. The private bar has, for too long, controlled that process and their clients' interests - not to mention the taxpayers' interest, and the interests of justice - have suffered as a result.

See prior coverage at the Austin Chronicle for more detail.

Sunday, February 25, 2018

Texas DA and Court of Criminal Appeals primaries: A podcast excerpt

In the February 2018 episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed several District Attorney primary races which haven't received much attention as well as important Court of Criminal Appeals races up this cycle (including a serious challenger to Presiding Judge Sharon Keller). Give it a listen:

See a recent link roundup here related to these DA races (evaluating primaries in Dallas, Bexar, McLennan, Smith, Walker, Victoria, Denton, Smith, and Galveston counties). Find a transcript of this segment below the jump.

Saturday, February 24, 2018

Don't make excuses for bad choices by Harris County judges

The truth about Harris County judges misleading the courts and intentionally violating the constitutional rights of defendants before them is finally coming out.

When Texas state Sen. John Whitmire filed a complaint with the State Commission on Judicial Conduct against Harris County's magistrate judges, they defended themselves by saying the elected judges directed them to deny personal bonds, which the judges themselves at first denied. The magistrates were sanctioned anyway, and sources in this must-read Houston Chronicle story by Gabrielle Banks suggested that the Commission is likely now investigating the judges who gave those orders, which is basically all of them.

During the case before Judge Rosenthal, the county claimed they could come up with no evidence that judges directed magistrates. But when the magistrates were accused of misconduct, they produced 600 pages of evidence in that regard that implicated many current and former judges.

Now we know for certain the policies were explicit, widespread, and top-down. This wasn't a case of rogue magistrates denying bond without the knowledge of the judges. This is a case of magistrates serving as dependent vassals with no capacity for independent decision making whatsoever. And they obviously weren't too keen on revealing that truth to the federal judge presiding over the case, who justifiably felt blind-sided when representations made in the magistrate's disciplinary case flat-out contradicted those made in her court.

Finally, I couldn't disagree more with Grits contributing writer Sandra Guerra Thompson, who was quoted in the story thusly:
"I'm not sure the judges intended to do anything inappropriate in giving those instructions," said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston Law Center. "I think this is part of the history - misunderstanding that magistrates are not the clerks of the judges. They are themselves hired to be independent judges."
That's giving them way too much credit, and cover. Since Grits first focused on bail questions in Houston back in 2005, the failure to grant personal bonds has been the central problem and it's been patently obvious for years that local elected judges were the culprits behind it. There's no "misunderstanding," it was intentional, and an abuse of power. That's why it took the federal courts to change things.

The idea that there was a structural, "cant get there from here" problem was always a lie. There's really no reason now for the press or advocates to pretend otherwise.

MORE: I should have called out Judge Michael McSpadden's comments from the story, too, and the more I look at them the more I think they deserve an addendum:
State District Judge Michael McSpadden, a long-serving jurist in Harris County, said he also had a no-bond policy for magistrates for at least a dozen years because he didn't trust the lower-level jurists not to make errors. 
"Almost everybody we see here has been tainted in some way before we see them," he said. "They're not good risks." 
The judge said he was concerned defendants would be released on bond only to be arrested on another offense. Many had casual attitudes about showing up for court, he said. 
"The young black men - and it's primarily young black men rather than young black women - charged with felony offenses, they're not getting good advice from their parents," he said. "Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, 'Resist police,' which is the worst thing in the world you could tell a young black man ... They teach contempt for the police, for the whole justice system."
Let's be clear: A) This was happening for DECADES before Black Lives Matter was on the scene, and B) the county NOT letting defendants be advised by lawyers at bail hearings was a big part of the suit! In fact, the county has now begun providing lawyers at bail hearings, so this is the first time they're being advised by anybody.

It wasn't Black Lives Matter or defendants' families causing their dilemma, it was people like Judge McSpadden, who clearly has lost the ability to make individualized judgments in these cases, if he ever possessed it.

AND MORE: ACLU of Texas has called for Judge McSpadden's ouster based on these comments, calling on the State Commission on Judicial Conduct to remove him. Said ACLUTX's Terri Burke, "When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can't be trusted, it's time to take action. This kind of flagrant racism has no place in our justice system." That said, Grits considers it far more likely that voters will remove McSpadden in November than that the SCJC will do so any time soon. He's facing a reasonably strong candidate, and Harris County judicial races appear poised to flip en masse from red to blue. OTOH, the SCJC couldn't possibly remove McSpadden by the end of the year, and based on its history, is unlikely to remove him at all.

Wednesday, February 21, 2018

Endorsing an Over-Incarcerator, History Unfolding, Ain't Nothing but a Plea Mill, and other stories

A few odds and ends to clear Grits' browser tabs

Endorsing an Over-Incarcerator
The Dallas News last week endorsed a Collin County Justice of the Peace for a Texas House seat who, according to an investigation by Buzzfeed, is among the most prolific jailers of juveniles in the state. His opponent is a Greg Abbott appointee to the Texas Juvenile Justice Department board, so debates in this race should be about his penchant for over-incarceration of juveniles, but you wouldn't know it from the DMN editorial. From reading it, I'd bet they hadn't even seen the Buzzfeed coverage. Google is your friend, people!

What's the point of MSM endorsements in GOP primaries?
On a related note, I wonder:  Do mainstream media folk understand that, when they endorse someone in a Republican primary, they're actually harming that person's chances because conservatives distrust the media so thoroughly? That was already true by the time I left the political consulting profession after the '04 cycle (we had polling to prove it), and it's surely become only more so in the current political environment. So if issuing an endorsement HARMS the chances of the person you want to win - in some cases even giving their opponent a winning issue to run on ("stick it to the media, who you hate") - then what is the point, exactly?

Two local rulings with (blurry) statewide implications
When thinking about the 5th Circuit's ruling in the Harris County bail litigation and the settlement in the TDCJ heat litigation, it strikes me there's a notable similarity. The bail litigation affects only one county; the heat litigation affects only one prison unit. And the rulings apply only to those jurisdictions. Yet, identical situations exist everywhere around the state. Harris County's bail policies aren't unique, and there are many thousands of inmates in the "heat sensitive" categories which will receive relief at the Wallace Pack Unit now. But that doesn't automatically mean other counties/units will follow suit and the mechanism for how the principles underlying these rulings might end up applying statewide is blurry and unclear, barring repetitive, individualized litigation to apply the same process everywhere that's similarly situated. I fear litigants on both issues may not have sufficient resources for that, given 254 counties, 100+ adult prison units, etc.. Meanwhile, the Legislature last year proved unable to address bail reform meaningfully, and it's hard to imagine them paying to air condition units unless a judge makes them. So these policies could eventually be imposed statewide, but it hasn't happened yet, it's not inevitable, and right now it's hard for this writer to even see the path on either of them.

Tarrant pretrial jailing policies were for decades a weird outlier
For three decades, municipal police agencies in Tarrant County held arrestees in their own city jails prior to charges being accepted by the Tarrant County DA, at which time they were transferred to a county facility. Back in the 1980s, the county tried to charge municipalities for housing their prisoners and Fort Worth responded by moving their prisoners elsewhere. But the new Sheriff says he's not authorized under law to charge cities a fee. To the extent that's true, it means cities in Tarrant County have been paying tens of millions of dollars for jailing these defendants totally unnecessarily. Plus it costs more to do it piecemeal because it fails to take advantage of an urban county jail's economies of scale. Tarrant is the only county in the state where arrestees weren't taken directly to the county jail, reported the Fort Worth Star-Telegram. The cities should not have been paying to house those prisoners all those years, if I were them I'd be PO'd.

Ain't nothing but a plea mill
This Austin Chronicle depiction of the "jail reduction docket" in Travis County brought back memories, and a measure of appreciation for the attorneys threatening to challenge it in federal court. I recall sitting in Travis County courtrooms as an opposition researcher more than 20 years ago at what was then called the "rocket docket" and watching the same thing: Clients file into the courtroom, meet their lawyer for the first time, converse briefly with their attorney kneeling beside them, then pleading out their case almost immediately. You can see the same thing in Houston any day the courts are open. It's a breathtaking rendition of assembly-line justice that's still going on. Ain't nothing but a plea mill, baby.

History, unfolding
The Houston Museum of African American Culture has installed a Sandra Bland exhibit. Fitting. Will have to stop in and see it next time I'm in H-Town.

Grits found himself the other day in the offices of the Combined Law Enforcement Associations of Texas, and thought this was a pretty cool piece of logo-bling:

Father's pleas heard as parole board recommends clemency

The Texas Board of Pardon and Paroles yesterday unanimously recommended clemency for Thomas Bartlett Whitaker, the first time in a decade the BPP has recommended against a death sentence. Whitaker orchestrated the murder of his family and his father, the only surviving victim, has been campaigning to save him from the death chamber. I mention it to remind readers that my podcast co-host, Mandy Marzullo, interviewed Whitaker's father last month about his son's case. Check out their full conversation here.

Tuesday, February 20, 2018

Podcast: Texas DA primaries, Court of Criminal Appeals races, and much more

Check out the February 2018 episode of Just Liberty's Reasonably Suspicious podcast, featuring discussions of Texas District Attorney and Court of Criminal Appeals primary races, Just Liberty's campaign to install justice reform in party political platforms, how Texas' law about driving on the shoulder is similar to the NFL's debate over what is a catch, and much more. You can listen to the podcast here:

In this episode you'll find:

Top Stories
  • Competitive Texas District Attorney primaries
  • Texas Court of Criminal Appeals primary races
  • Just Liberty's campaign to put #cjreform into party platforms
Home Court Advantage
  • Court of Criminal Appeals considers pretext stops #DezCaughtIt
  • Victim of prosecutor misconduct denied relief at 5th Circuit
Errors and Updates
  • Harris County loses bail litigation
  • TDCJ settles heat litigation
  • Management shakeup at Texas Department of Juvenile Justice
The Last Hurrah
  • Juvenile probationers in Harris County overincarcerated
  • TDCJ wage hikes create problems for youth prison employee turnover
  • Fort Worth and Austin opted out of Great Texas Warrant Roundup
Subscribe via  iTunesGoogle PlayYouTube, or SoundCloud. And find a full transcript of the podcast after the jump.

Friday, February 16, 2018

Competitive DA races to watch

Among DA races, the main three I'm watching in the primary are Dallas and San Antonio on the Dem side, and McLennan County (Waco) on the R side. See coverage from
Of these, the McLennan County race is perhaps most interesting. The Twin Peaks biker cases are completely unraveling, with the DA office walking away from the cases and the state Attorney General refusing to prosecute them. Will GOP primary voters punish Abel Reyna for screwing the case up so badly? Time will tell. But the timing really couldn't be worse for him.

MORE: An alert reader complained that I'd left out the DA contest in the Smith County GOP primary. My bad; Grits hasn't been watching the hometown news. Here's a link to coverage of a candidate forum in January and video of a recent candidate debate.

AND MORE: Preparing for a podcast segment on the primary elections, Grits ran across a few additional races of which readers should be aware.

In Victoria County, the daughter of a former DA is running against the incumbent on a reform agenda, chastising him for a failed policy of taking every first-offense DWI case to trial. This race shows how "reform" is relative. Not every reformer DA will be Larry Krasner. In Texas, simply being willing to oppose extremist bone-headedness in favor of pragmatism and math can make one a "moderate" in the GOP primary.

In Denton County, challenger Brent Bowen says the reputation of incumbent Paul Johnson’s office has been “marred by law suits and misconduct.”

Then there are a couple of competitive DA races out there which won't be decided along "reform" axes but rather by more traditional charges of incumbents being too lenient in plea bargaining. In Galveston, Jack Roady faces a primary challenger accusing the incumbent of being soft on crime. And in Walker County, the county seat of which is Huntsville, the First Assistant of incumbent David Weeks is battling it out with a civil attorney whose supporters say the DA office isn’t tough enough on DWI.

Monday, February 12, 2018

Cowtown bucks Great Texas Warrant Roundup

Fort Worth may be the first Texas city to pull out of the so-called "Great Texas Warrant Roundup," according to a report in the Fort Worth Star-Telegram:
now the City of Fort Worth Municipal Court has decided it wants to save you from an embarrassing arrest by bucking the aggressive roundup approach for a more neighborly discourse that it also believes will prove to be more productive. 
"We're calling it Warrant Forgiveness Month,” Municipal Court Director Theresa Ewing said. 
No, it's not wiping the slate for those with Class C warrants, however this new "Court in the Community" initiative — a mobile courthouse coming to a part of town near you — does guarantee an arrest-free encounter while meeting with a municipal judge to arrange a payment plan (or even swapping fines for community service) to make that burdensome warrant a thing of the past. 
The program began to take shape after last year’s Convoy of Hope event at Southwest High School. The Municipal Court was invited to set up a mobile unit, and the people came. Ewing said 87 people were able to rid themselves of warrants by working out a payment plan.
That's what it looks like when government seeks to enforce these petty laws for the public good instead of mere rent seeking motivations. Nobody's getting off the hook, but neither is the focus on a "roundup," as though poor people with unpaid traffic tickets were so many bovine to be punched by armed-and-badged cowboys participating in a human cattle drive.

If this were happening Austin or even Dallas, one might write it off to Democratic officials setting more liberal policies. But that's not what's going on here. "Cowtown" is Trump country, and them dropping the "warrant roundup" may inspire other Texas jurisdictions to follow their lead.

Grits wishes every Texas legislator and staffer, much less every JP, muni court judge and city council person, would read these stories from the Fort Worth Star-Telegram about why Fort Worth, a GOP bastion, stopped issuing arrest warrants for most unpaid Class C misdemeanor violations:
That second story in particular is a must-read. Add in the Driver Responsibility surcharge on top of the warrants described, and unpaid traffic tickets can become an insurmountable mess.

There has been some legislative push to get at these issues, like SB 1913 from 2017 which eliminated some of the more egregious practices for squeezing blood from stones. But firmer measures like House Corrections Committee Chairman James White's bill to eliminate arrests for traffic ticket debt outright didn't make it through.

Fort Worth's example shows those stronger approaches are workable and should be revisited. We haven't jailed poor people for private debt in America for more than 180 years, and in the 21st century, there's no good excuse for jailing them for traffic-ticket debt, either.

Sunday, February 11, 2018

Honoring those who put their lives on the line every day

We've all heard the statement dozens of times or more: "Police officers put their lives on the line every day." And it's true, in the same sense that construction workers or taxi drivers or bartenders put their lives on the line every day, all of whom perish on the job at roughly similar rates as police officers.

But when it comes to local government employees at seriously high risk, the New York Times has a feature this weekend which highlights a larger source of municipal employee deaths: Sanitation workers, who tend to die on the job at more than double the rate of police officers.

Grits mentions the story to offer a mea culpa: Several years ago I'd made the observation that, "The people picking up your trash put their lives on the line every day and are more likely not to make it home at night than their brethren in blue. But one suspects we won't any time soon see a New York Times headline memorializing their sacrifice."

It took nearly six years, but eventually the Times did publish that article.

Friday, February 09, 2018

Full 5th Circuit to hear case of teen framed by Brownsville PD, and other stories

Here are a few odds and ends that merit readers' attention:

New Texas #cjreform newsletter
A new, weekly, Texas-specific justice-reform news roundup from the Fair Punishment Project merits readers attention and brings up a few thoughts. Here's the latest example. Go here to sign up.

Juvie prisons full, or emptying, or something
The new executive director of the Texas Juvenile Justice Department had earlier opined that Texas couldn't "raise the age" because the TJJD system was too full to handle the extra 17 year olds, though Grits disputed how many extra kids that would be, and instead was shifting high-risk youth to be housed in adult prisons. Now, though, she's saying the state may have enough extra slack in the system to close more juvie units in the next few years and rely more on community corrections. So which is it? Would adding 17-year olds overwhelm the juvie system, or are we anticipating enough slack to close entire units in the near future? ¿Quien sabe?

Harris County overincarcerating juvie probation violators
As we shift youth from state prisons to county-run probation settings, the state needs to increase oversight of county-run operations because some of them are over-incarcerating, too.

Heat litigation settlement sets new standard
The settlement of heat litigation so far only affects inmates at the Wallace Pack unit, but it's pretty clear this is a camel's nose under the tent situation. Certainly, there are other inmates who fit in the "heat-sensitive" category at other un-air-conditioned units around the state. Further, "In addition to ending the fight over air-conditioning the Pack unit, prison officials also agreed to allow heat-sensitive inmates to be driven to medical appointments in air-conditioned vehicles — ending a practice that discouraged treatment by requiring them to sit, sometimes for hours, in hot buses."

Deliberately indifferent TDCJ medical care caused heart attack
The Fifth Circuit Court of Appeals sided with a plaintiff in a case alleging TDJC's deliberate indifference contributed to an inmate's heart attack.

Suicide kills more TDCJ inmates than executions
Suicide attempts in Texas prisons have doubled in the last four years, reported the Houston Chronicle. Strangely, though, the data doesn't differentiate between inmates who only talk about suicide and those who actually attempt it. That failure causes these data to obscure nearly as much as they enlighten. But the significant upward trend remains problematic. Notably, "In 2012, 36 prisoners killed themselves, marking the highest numbers of completed suicides in several years." By contrast, Texas executed 15 people that year (source). Since then, the number of executions have declined, while the annual number of suicides in TDCJ has hovered in the low 30s. So suicides are a much larger source of prisoner deaths than executions in Texas.

Full 5th Circuit to hear case of teen framed by Brownsville police
The full 5th Circuit will hear en banc a case about which Grits has written a couple of times, and on which we did a podcast segment last July: George Alvarez was a slight 17-year old in Brownsville when he was framed by police for assaulting an office. But a 3-judge panel at the 5th Circuit ruled that the state had no obligation to turn over exculpatory evidence to the defense in a plea deal, that the Brady rights only attach when defendants go to trial. See a detailed writeup here from ProsecutorialAccountability.com.

'Mass Incarceration and Its Discontents': Reviewing Pfaff
After Grits' reviewed John Pfaff's book Locked In last year, I've been watching for other data-based critiques of his conclusions about the causes of and solutions for mass incarceration. One of the more scathing has been published in "Contemporary Sociology" titled "Mass Incarceration and Its Discontents," reviewing Pfaff's books with two others. The whole essay is worth a read for those who concern themselves with these questions.

Tuesday, February 06, 2018

Interference with SCFO attorneys demands investigation

Grits had earlier discussed the new report from a state bar committee critical of the State Counsel for Offenders, the Texas Department of Criminal Justice division charged with providing legal services to Texas prison inmates. (See coverage from the Texas Observer and KWTX.) So I wanted to pull out a segment from our most recent Reasonably Suspicious podcast discussing the topic in more detail:

Allegations by attorneys in the report that TDCJ interfered to prevent deployment of particular legal strategies should be investigated by the state bar or perhaps a legislative oversight committee, at a minimum. Indeed, if that's going on - and it sounds like it's happening writ large in the civil-commitment division - then it's time to question, as my co-host Mandy Marzullo suggested during the segment, whether the SCFO is structured in a way that allows for the ethical handling of defense cases. That shouldn't be happening.

Monday, February 05, 2018

Let's Talk: A compilation of #cjreform interviews

Grits has been enjoying the interviews for Just Liberty's Reasonably Suspicious podcast and decided to compile them all in one spot, plus some of the interviews done on Grits (with apologies for the lesser audio quality) before we moved to a full-blown half-hour show. All of them include transcripts. Enjoy:
  • Kent Whitaker, father and only surviving victim of death-row inmate scheduled for execution February 2018 pleads for his son's life.
  • Ron DeLord, founder of the Combined Law Enforcement Associations of Texas and lead negotiator on the Austin police union contract.
  • Peter Neufeld, co-founder of the national Innocence Project, discussing prospects and barriers to forensic reform.
  • Brandi Grissom, former Austin bureau chief at the Dallas Morning News on the Texas Juvenile Justice Department sex-abuse scandal she covered as her final story.
  • Sam Sinyangwe, co-founder of Campaign Zero and director of the Mapping Police Violence Project discussing police violence and the Austin police-union contract.
  • Emily Gerrick, staff attorney at the Texas Fair Defense Project, discussing legislation reforming debtors prisons and what Texas judges can do to reduce incarceration for debt.
  • James White, Chairman of the Corrections Committee in the Texas House, discussing the 2017 legislative session and future prospects for sentencing reform.
  • Becky Bernhardt, executive director of the Texas Fair Defense Project discusses Harris County bail-reform litigation to which her group is a party.
  • Amanda Marzullo, executive director of the Texas Defender Service, making the case for a capital appellate public defender.
  • Eva Ruth Moravec, reporter covering police shootings of unarmed people in Texas talks about her beat.
  • Amanda Woog, academic discussing her project gathering data on Texas police shootings and deaths in custody. See an earlier interview about her project.
  • Sandra Guerra Thompson, law professor at the University of Houston discussing her new book, Cops in Lab Coats.
  • Erica Gammill, executive director of the Prison Justice League discusses the problems and opportunities posed by organizing prisoners directly.
  • Amanda Marzullo, policy director of the Texas Defender Service, discusses implementation of the Michael Morton Act.
  • Amanda Marzullo, policy director of the Texas Defender Service, discusses what's next after 2015 grand jury reforms.
  • Amanda Marzullo, policy director of the Texas Defender Service, discusses the interplay between the Legislature and the Court of Criminal Appeals regarding Texas' junk-science writ, as well as 2015 legislation requiring prosecutors to notify defense when seeking an execution date.
  • Becky Bernhardt: On excessive caseloads of attorneys representing indigent defendants.
  • Jennifer Laurin, UT law professor, discussing prosecutorial misconduct and oversight.
  • Jeff Blackburn, Amarillo attorney and former legal director of the Innocence Project of Texas, discussing traffic tickets as local revenue generators.

Saturday, February 03, 2018

What is a catch? What is driving on the shoulder? Video leaves CCA judges and NFL refs parsing fine details #DezCaughtIt

With this being Super Bowl weekend, Grits can't help but observe that the debate at the Texas Court of Criminal Appeals over whether someone is driving on the shoulder greatly resembles the debate in the National Football League over what constitutes a "catch." (#DezCaughtIt)

The amount of hair splitting that's possible in interpreting both rules - abetted by instant replay in the NFL and dashcams on police cars - nearly beggars belief. The Austin Statesman offered rare coverage of the latest CCA case deciding matter.

In this instance, the Government-Always-Wins faction split (with Judge Barbara Hervey joining Bert Richardson's main opinion) and common sense prevailed, but not without a hot debate over whether driving on the "fog line" separating the road from the shoulder is the same as driving on the "improved shoulder," which is a criminal offense.

The Seventh Court of Appeals had ruled that a traffic stop based on a vehicle's tire touching the fog line was invalid, upholding the trial court's suppression of evidence garnered from the stop. Judge Bert Richardson's opinion endorsing that parsimonious view ruled the day, but Presiding Judge Sharon Keller, joined by Judge Keasler, offered a spirited, hair-splitting defense of the officer's decision to arrest. According to Judge Keller:
the trial court found that the traffic-stop video showed Appellee’s vehicle’s 'right rear tire (or its shadow) . . . to come in the proximity to and possibly touch the inside portion or more of the white line delineating the roadway from the improved shoulder . . . but not to extend past the . . . outermost edge of the fog line.'
And since she considered the line part of the "improved shoulder," she would uphold the stop and subsequent search. Judge Yeary offered another, suggesting the majority reached the issue improperly.

This was a debate about pretext stops. How pretexty can they really be? Does the pretext matter at all?  Can the excuse for the stop be complete bullshit, or will mostly bullshit suffice? In this rare pro-defense ruling, the CCA sided with judicial restraint and common sense. But among members of the court, it appears to have been a hard-fought victory.

Entry-level TDCJ wage hikes exacerbate TJJD staffing problems

At the Dallas News, Lauren McGaughy has a story that reaches to the heart of problems at the Texas Juvenile Justice Department, even if it's an aspect of the crisis state officials have been loathe to address: Low pay and poor working conditions, exacerbated by siting youth prisons in rural areas with limited labor pools, contribute to a nearly unmanageable situation where up to 40 percent of staff turn over every year.

Now, Texas adult prisons have increased starting pay to stave off their own high turnover rates, and the result is that juvenile facilities are no longer competitive. There's already a lot of migration back and forth between adult and juvenile facilities, but this change ensures that migration will flow only in one direction.

This is not a problem one fixes by firing managers, much less watchdogs. It requires ponying up money, which the Legislature has been unwilling to do. Indeed, if new spending is required either way, IMO it'd be better to follow Wisconsin Gov. Scott Walker's lead and invest in smaller facilities near urban areas based modern best practices. Just increasing pay to try to attract workers to undesirable jobs in rapidly depopulating rural areas strikes this writer as a fool's errand.

State leaders have an opportunity to re-imagine the juvenile justice system in a way that reduces both incarceration and recidivism. Between the understaffing crisis at youth prisons, the sexual assault charges against an increasing number of staff, the need to implement federal prison-rape regulations at county jails, and the bipartisan push to raise the age at which youth may be prosecuted as adults (a measure which passed the Texas House each of the last two sessions), there's a nexus of opportunity here to install a global fix that sets juvenile justice in Texas on a more stable, long-term path.

But they're blowing it. The desire to appear tough has so far trumped the desire to be smart. And because state leaders have paid no political cost for living in denial, they haven't addressed these more fundamental problems, of which the sex-abuse scandals are simply a recurring symptom. In the long run, as I've written before, Texas state leaders are on the wrong side of History. And these staffing shortages at TJJD show History may soon catch up to them.

See prior, related Grits coverage:

Interview: Father/victim of soon-to-be-executed inmate pleas for son's life

Thomas Whitaker is scheduled for execution later this month for orchestrating an attack on his family in 2003 in which his mother and brother died and his father was injured. His father, Richard "Kent" Whitaker, is waging a campaign to convince the Board of Pardons and Paroles and Governor Greg Abbott to commute his sentence to life. The Washington Post yesterday published a feature on the story.

On the latest episode of our Reasonably Suspicious podcast, my co-host Mandy Marzullo spoke with Kent Whitaker about his son's case and his longshot campaign to secure mercy in the form of a gubernatorial commutation. Give it a listen:

Find a transcript of this conversation below the jump.

Thursday, February 01, 2018

Keller threatened at the ballot box, remembering Johnnie Lindsay, and other stories

Here are a few odds and ends that merit Grits readers attention:

Remembering Johnnie Lindsay
Johnnie Lindsay, one of the early Dallas DNA exonerees who became active pushing for changes to the law in Austin, is on his deathbed. Jennifer Emily at the Dallas News had moving coverage. I knew Johnnie well through his work at the capitol while I was policy director at the Innocence Project of Texas. Great guy. He will be missed.

Support closing Texas youth prisons
More than 930 Just Liberty supporters have emailed the Governor and Lt. Governor in the last two weeks to ask them to close Texas' 5 remaining youth prisons and shift juvenile offenders into smaller, home-like settings focused on treatment, following the path charged by Gov. Scott Walker in Wiconsin. Go here to join them in sending a message to your elected officials.

Keller threatened at the ballot box?
David Bridges from the 5th Texas Court of Appeals out of Dallas has proven to be a strong challenger to Presiding Judge Sharon Keller on the Court of Criminal Appeals. Her hometown newspaper recently endorsed him, and I've heard Republicans in a couple of different venues recently suggest he is gaining ground. That would be a seismic shift on the state's highest criminal court.

Going gets weird in Bexar DA race
The two big DA races to watch in the Texas primaries are both on the Democratic side, in Bexar and Dallas counties. In San Antonio, Nico Lahood apparently thinks it's a good idea to "tongue-lash" constituents at town-hall meetings. Sigh. At least he's not talking about vaccines. OTOH, he just announced Bexar would begin diverting low-level marijuana cases, which is a plus.

Police and fire pensions blowing up
Following up on themes raised by Ron DeLord in the January Reasonably Suspicious podcast, Reason magazine has published a map of Texas police and fire pensions funded below the 40 percent level. It's a lot of them. And from ALEC, see an article on shifting from defined benefit pensions to 401k-like retirement policies, which DeLord predicted would happen for Texas police departments within 20-25 years.

Forensic errors caught, but still too common
An analyst at the Houston Forensic Science Center was fired after she shredded her notes in a murder case rather than document the source of errors in an analysis, the Houston Chronicle reported. The good news: The system caught the errors. But there have also been problems, the paper added: "Last April, it was reported that 65 criminal cases were jeopardized because of errors by Houston crime-scene investigators, including 26 homicides, five officer-involved shootings and six child deaths." Further, " March 2016, Houston's Office of Inspector General recommended the center revise its quality-control policy procedures after an investigation into three incidents the year earlier found that analysts had mistakenly contaminated evidence."

Don't jail juvie probationers on technical violations
Juvenile probationers in Harris County are being jailed for technical probation violations at high rates, reported the Houston Chronicle.

Trumpian Justice reform focused on reentry
The Texas Public Policy Foundation's Brooke Rollins outlines the Trumpian view for criminal-justice reform. Sentencing and forensic reform probably dead, but reentry initiatives are newly in vogue.

Pattern-recognition based forensics a problem
See a good discussion of forensics based on pattern recognition.

Texas Ranger is new TJJD Ombudsman

There was an Ombudsman named Unruh
Who reported on bad things that staff do.
Newspapers reported
Her data exported
And so Debbie Unruh is now through.

Governor Abbott replaced TJJD Ombudsman Debbie Unruh with a retired Texas Ranger with no relevant experience, whatsoever. Reported the Houston Chronicle, "the incoming ombudsman is a former special ops commander with experience in special weapons and tactics, bomb squad, reconnaissance, crisis negotiations and border security." That background should really help when coaxing stories out of abused kids in youth lockups.

Meanwhile, Grits remains concerned about the message sent when the person who exposed many of the problems driving change at the agency is targeted for removal. I hope this new guy will do a good job, but the optics sure are bad. And if all of a sudden his reports show that problems at the agency have cleared up, will those findings be accepted as credible, or will the shoot-the-messenger circumstances surrounding his predecessor's departure make even good news something questionable? Time will tell. 

Putting a cop in the job instead of someone who's worked with kids - when the main job requirement is traveling around the state listening to kids - may work out despite the bad optics. I hope so. Certainly, I have no reason to believe the new Ombudsman is anything but a good man with the best intentions, despite the mismatched skill set. But coupled with moving troubled kids into TDCJ and uninformed comments by the new ED about raise-the-age proposals, Governor Abbott's change program still seems to this observer like it's off to a rocky start.

RELATED: A couple of editorials out this week speak to the small-government strategy that, in this writer's opinion, the Governor should adopt, following Scott Walker's lead in Wisconsin, instead of doubling down on large youth prison facilities.

Wednesday, January 31, 2018

TJJD Ombudsman Firing: Shooting the Messenger

When one reads the press accounts which broke the recent scandals at the Texas Juvenile Justice Department or talk to the reporters who covered it, one thing becomes clear: Much of what we know would have remained a secret if it weren't for the work of Debbie Unruh and her staff at the Ombudsman's office.

So naturally, Gov. Abbott has fired her, the Houston Chronicle reported. The chair of TJJD's board is also gone, and the executive director of the agency had already been replaced by the head of Gov. Abbott's Criminal Justice Division (which is in charge of dispensing mostly federal grant money). See also coverage from the Texas Tribune.

Incidentally, the new board chair, Wes Ritchey, comes from the same job Grits' paternal grandfather had for 29 years: County Judge of Dallam County.

State Sen. John Whitmire defended the changes, declaring, "Surely they can't say that the status quo was working well." To which Grits would reply, "No, it's not, but the only way we know that is because of the good work of the Ombudsman who's now being fired."

I get firing the ED and the board chair, even if I wasn't happy with the subsequent ED's initial missteps. But firing the Ombudsman is a different breed of cat. Hard to see that as anything but shooting the messenger, which breeds skepticism about whether the Governor would rather solve the problem or cover it up.

Rather than embracing modern best practices on juvenile justice like Gov. Scott Walker in Wisconsin, Gov. Abbott is doubling down on failed big-government solutions from the past and shutting down voices that exposed its shortcomings. That's a discouraging start to what will surely be a long and painful process.

If Unruh's office had never documented and exposed some of these problems, they would continue to have been swept under the rug. Same goes for problems at county detention centers.

My own takeaway on this remains the same as when the latest scandal first broke: "The mechanisms the Legislature created [in 2007] to identify, prosecute and punish sexual misconduct by staff actually appear to have worked. But the corrections culture that produces these illicit relationships at TJJD and TDCJ continues to afford opportunities for predatory behavior." The Ombudsman's office is part of what worked in this case: It's the management and ultimately decision makers and budget writers in the Legislature who decided to keep these large facilities in rural areas far away from treatment or mental health resources, then underfund them to the point that, in some cases, staff turnover approaches 40 percent annually.

Will the next Ombudsman be anxious to expose problems at juvenile detention centers knowing that doing so got the last person fired? Not likely.

Unruh wasn't technically a "whistleblower" because her JOB was to expose this stuff. She wasn't doing it against the interests of the agency, it was part of her job description and the Ombudsman's explicit mission.

But the circumstance is essentially similar to firing a whistleblower: She's being punished after exposing problems everyone agrees shouldn't have been going on. Indeed, given that most of the changes at TJJD so far are non-responsive to the details of the recently reported scandals, punishing her seems to be prioritized over fixing the problems.

RELATED: "Shifting youth to adult prisons puts Texas on the wrong side of history."