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
- Banned books in TDCJ (featuring Lauren McGaughy): Why Mein Kampf is okay but The Color Purple is banned.
- Alleged interference at State Counsel for Offenders: Did TDCJ board dictate defense strategies?
- Ron DeLord, founder of the Combined Law Enforcement Associations of Texas on police pensions, predicts defined benefit pensions for police will vanish within the next couple of decades.
- Harris County magistrate judges sanctioned for bail SNAFU
- Austin police union declines to re-enter negotiations after contract rejected
- Richard Whitaker: Father of a death row inmate, who is also one of his victims, asks the governor, parole board to spare his son's life.
- Latest Dallas exonerations based on prosecutor misconduct
- Quick results from drug-law change in Oklahoma
- Twin Peaks biker cases soon headed to trial
Find a transcript of the podcast below the jump.
Transcript: Reasonably Suspicious podcast, January 2018, Co-hosted by Scott Henson and Amanda Marzullo.
Amanda Marzullo: Hello, I'm Amanda Marzullo. A Granbury man was arrested after texting 911 dozens of time from a bar to complain about alleged over-serving, over-charging, and poor service. So, Scott, was this an appropriate use of our emergency response system?
Scott Henson: Well, the arresting officers didn't think so, but in my defense, by the time they put the cuffs on I was three sheets to the wind, so as far as I'm concerned, that over-serving allegation was totally justified. People have to be held accountable.
Amanda Marzullo: I'm not gonna dispute that. I'm just having trouble understanding your beef here. I mean, over-serving and poor service, isn't over-serving sort of the cornerstone of proper wait staff etiquette?
Scott Henson: I just felt an obligation. I really did. I don't know what to tell you. If you see something, say something. That's what all the signs say. I'm just following the lead of Homeland Security.
Amanda Marzullo: That's who you want to be following. I'm glad you've picked your role models so well, Scott.
Scott Henson: Hello boys and girls, and welcome to the January 2018 edition of the reasonably suspicious podcast covering Texas criminal justice politics and policy. I'm Scott Henson, policy director at Just Liberty, here today with our good friend Amanda Marzullo, whose day job is executive director at the Texas Defender Service. Mandy, what are you looking forward to on the podcast today?
Amanda Marzullo: I'm excited to talk about the Thomas Whitaker case, who's scheduled for execution in February.
Scott Henson: Yeah, you had a great interview with his father.
Amanda Marzullo: Yes. First up though, the Dallas Morning News published a story this month about the process by which the Texas Department of Criminal Justice decides which books to ban from inmates and which ones it allows. Scott caught up with reporter, Lauren McGaughy, who described an [inaudible 00:02:06] of books banned from Texas inmates and some alarming ones that are routinely allowed.
Lauren McGaughy: Yeah, there are a lot of surprises as you can imagine going through about 10,000 banned books and a lot more that are on the allowed book list. Some of the most surprising ones were, there was a book written by 50 Cent, the rapper, that went into detail about the criminal drug trade and that was on the allowed list, but then there was the famous economics book "Freakonomics" which had a section on abortion and a section on drugs and that was banned for what they called racial content. There was just a lot of things that seemed incongruous and didn't make a lot of sense.
Scott Henson: Probably no racial content in 50 Cent's book.
Lauren McGaughy: I don't know. I've never read it, but ... the title and description alone at least went into detail about the drug trade.
Scott Henson: Or "Mein Kampf," which no racial content there probably.
Lauren McGaughy: No, no. David Duke's book arguing for separation of the races was also on the allowed list, which I would assume that has some racial content in it if he's arguing for that.
Scott Henson: One imagines.
Amanda Marzullo: And the process by which TDC makes those decisions is rudimentary at best.
Lauren McGaughy: It's kind of interesting, because you would assume that maybe there's some kind of a committee or something that goes through every single request or makes these decisions from some lofty place in some board room, but the first decision is actually made by the mail clerk in the facility where the inmate is living. If the inmate is incarcerated some place and they order a book, that book comes into the mail room and that individual gets to decide whether they think it should be on the allowed list or the banned list.
Scott Henson: That person is not a mail clerk. They're a literary critic.
Lauren McGaughy: In that sense, they are. Now, the inmate can appeal that and try to fight the decision if the book ends up on the banned list, but if they lose, they oftentimes have to pay to have it sent back or to a friend, or they'll burn it or get rid of it, something like that.
Scott Henson: We're burning books?
Lauren McGaughy: Maybe I should take that back. I don't know if they're actually incinerated, but the books are disposed of, I believe was the term if they couldn't find an alternative for it. I think that is the crux of what they might be looking at, now that they're reviewing the policy is, is the mail clerk the perfect person to be making that decision right off the bat, because obviously it's gonna be very subjective, person to person.
Amanda Marzullo: So Scott, there doesn't seem to be any rhyme or reason here, so what's going on?
Scott Henson: It's a really strange situation, because there's an incredibly vague policy in place and it's being implemented by the lowest possible people on the totem pole, literally the people in the mail room who receive the mail are the ones calling the shots on this, so it really just appears to be a complete backwater, where no one has examined this at all, and the policy that they're actually basing this on, you had pointed this out to me, really doesn't even mention a lot of the things that they're supposedly banning books based on. There's no category in the TDCJ policy that says that racial content needs to be banned, and yet that was the basis that they banned Freakonomics from being in a prison library. I found it very bizarre and I was happy that Chairman James White sought out a review of this policy and TDCJ is now reviewing it because a lot of it didn't make much sense.
Amanda Marzullo: You know, a lot of it doesn't seem to make sense. It would be interesting to look at the decisions and see how they're being made, because it's sort of pointing out how something is implemented is policy at the end of the day.
Scott Henson: Especially in a prison, where the prisoners have very little ability to control their own situation, their own lives, very few alternatives, they don't get to go to the bookstore if the book they want is not in the prison library.
Amanda Marzullo: Yeah. We'll keep watching this story and see how it develops.
Scott Henson: Next up, the Texas State Bar's Committee on Legal Services to the Poor and Criminal Matters has issued a report that's highly critical of the state council for offenders. The legal department representing inmates at TDCJ alleging the agency is chronically under-funded and under-staffed and that TDCJ interferes with the legal decisions of attorneys there on behalf of their clients. Mandy, tell us a little about the committee's study and what they found.
Amanda Marzullo: Scott Ehlers, who is the primary author on this report and is responsible for doing the lion's share of the work, conducted a survey of the state council for offenders staff ...
Scott Henson: And former staff and stakeholders
Amanda Marzullo: And former staff and a number of stakeholders, including I believe, the prosecution in this instance to kind of get a sense of what is going on there, and they sort of pointed to two key findings. The first is a lack of independence of this organization. It's clear that the TDCJ board is influencing staff's decision on individual cases, which raises serious questions, and I want to say questions about whether this organization is structured in a way that allows for the ethical handling of defense cases. One attorney reported that he was told not to make certain arguments.
Scott Henson: Right. That was on the civil commitment for sexual offenders, and this has been an area where TDCJ has been under immense amounts of litigation over the ... in recent years and has had lots of problems, so TDCJ has an obvious interest in not having certain defense arguments against its position made in a strong fashion and the fact that they control the defense lawyers and are able to dictate which arguments they make and don't really was astonishing. There was this one attorney who said that they, along with the rest of the civil commitment detection, were told not to pursue a certain type of defense in civil commitment cases. That's pretty explicit. There was another one very similarly where they were directed to withdraw from representing a client after their director returned from a board meeting. So as you say, this does raise questions.
Now, the flip side of this is, this is based almost entirely on a survey. There's not a rigorous investigative report or an audit or something that extreme behind this. This is a survey, and for the most part is just reporting what these attorneys said in response and making an analysis based on that, and analyzing it. Based on the Bar's Associations ten standards for indigent defense, and I thought that was a reasonable to compare it to, the Bar Association standards, but it's hard to say that the survey just proved these points. It raised questions that now some reporter or state agency or legislative committee or someone need to take this and ...
Amanda Marzullo: Delve further into it.
Scott Henson: Delve into it. It's a red flag is what it is.
Amanda Marzullo: Exactly. The other big piece was the under-funding of this organization. It's ... I will say this is indicative of a big problem within our criminal justice system in general, but there really is one to one parody in this instance between the State Council for Offenders and the prosecuting agency that handles these cases. Nearly everyone who is in TDCJ's custody does not have a job and therefor is indigent and cannot afford the cost of their legal representation, and likewise, the prosecutors are gonna handle every single case that needs to be filed. It's one to one, yet the State Council for Offenders is funded only at a 75% rate roughly, or has three quarters of the budget let's say that the prosecution office does. If you look at that, that is probably still ... only captures a piece of the under-funding. Another thing is prosecutors in Texas have an independent fund for their pensions. That is a line item that is eliminated from every prosecutor budget, period.
Scott Henson: In this agency you say has 75% of the budget of the prosecutor, then they're also paying for their lawyer's pensions and the prosecutor's agencies are not, so that's really even less money available for actually handling the cases.
Amanda Marzullo: Yeah. We're talking about their overhead and staff salaries and benefits that's going to be substantially higher, several thousand dollars.
Scott Henson: Per lawyer.
Amanda Marzullo: Per lawyer, 10-15% higher.
Next up, in our August and October podcasts, Scott and I discussed a new book out last year, which was co-authored by Ron DeLord, who is the founder of the Combined Law Enforcement Associations of Texas. He was also the lead negotiator for the union side on the Austin police contract that was famously rejected by the City Council last month. We'll publish the full interview soon, but for now, here's an excerpt in which DeLord predicted the end of defined benefit pensions for police officers within the next couple of decades.
Scott Henson: I'm here today with Ron DeLord who has a long and storied history with the Texas Police Union movement. Ron, I'm really happy you came to talk with me today. Thank you for joining us.
Ron DeLord: Well I'm glad to be here. I apologize for my voice. It's allergy season in Austin.
Scott Henson: One of the themes in the book is the police union movement has been so successful at accumulating power and boosting wages and getting very generous pension benefits that you're at a moment in history where you expect a backlash. In fact, I've said a couple of times in earlier podcast segments that some of your comments were really very precedent and almost like you were looking into a crystal ball on some of the pension fights at the legislature, the Austin police contract, and some of this. Let's start with pensions.
Ron DeLord: Okay.
Scott Henson: The legislature this session came and did this big corrective, I know the Dallas pension had gotten to the point where they were fearing it would literally bankrupt the city ...
Ron DeLord: That's correct.
Scott Henson: If nothing had happened and the Houston pension was perhaps a few years behind that in terms of getting to a crisis. Talk to us a little about whether or not, have the unions overreached? None of the cities really have fully funded the pensions out. They're not contributing enough to cover them. Eventually those bills are gonna come due and we've had this can't tax them, the legislature's gonna limit their ability to generate more revenue. Are we reaching a crisis point here that, or has the Dallas and Houston fix done it?
Ron DeLord: No. I preach a lot about just the paradigms that change and the change agents that drive a paradigm shift, and we're in a paradigm shift. I said this back in '07 and no police union leader believed me, '08 we had the recession, it just hid some of the problems for a while, and those problems have come back, and I believe that, and when I tell police this, it's not that I don't believe in a defined benefit plan, in fact, I think every American ought to have one, that the employer ought to be required to put money in a fund and you as a worker ought to be required to put it in there, and you shouldn't be able to take it out and spend it, and we should have ... and I know it's Big Brother making you do something, but the problem is the bulk of Americans have no pension now and there's going to be serious, serious troubles, well they're already coming.
We're moving out of defined benefit plans as a nation, and that's sad in many ways. The big change agents were the failure of the ALFCO, its decline, it's not that I don't like them, but you go from 30, 40% of the private sector work force to 6, you're almost reaching a point of being irrelevant. So, because people have abandoned the unions, and because those unions who had the same benefits are out, the private sector now is only down to a very small percentage. In fact, there is virtually no major company has a defined benefit plan. Once they leave and leave just the public sector, what's happened is, is kind of a strange deal.
A friend of mine, Tyler Eisen, who was present of the Los Angeles Police Protective League, he's retired, made a very astute observation. He said, "When we made little money and we got 50% and could retire at 20 years, nobody really cared. We could go and just like the military, we'd do 20 and we'd go work somewhere else, and that would just be a little piece of our life, but over time, we built in higher and higher wages, we moved that 50% to 75% to 80% to 90%, but we kept raising the wages also, and because ... there's a lot of risk in it because the money is not just what you put in, it has to make money in the market and when the markets are volatile, which they have been in these recessions, you get in a hole, and then employers don't want to catch up.
We're going to a system comparable to Australia. If you look at Australia, and I spent a lot of time there, they started phasing out defined benefit plans 20-some odd, 25, 30 years ago. You have all these layers where you might have a pension, but the next person would go to what they call super enumeration, which is like a 401(k). We will transition out of defined benefit. It may be 20, 25 years, and I tell the police this, I like it. I think it's designed for the military, it's designed for places where we want your service for 30 years or so, but the truth is, we've got to make it such that it will change. What it will do, what it did to Australia when they went over, is you will not have police stay for long periods of time. You will have police react just like the private sector. In Australia, the average male officer works 14 years, the average female seven. That seven is probably about the first time they have a child. Then they go on because it doesn't really matter, because when an officer gets about 14 years as a male, they've done and seen it, they go on. They constantly hire.
The police forces are very, very young and that has become acceptable to them that they're always training and basically recruit you like the military. Come on over and do public service, work in the police service, and when you get tired, go on. There's not a fixed day for you to leave. That's where we're going. There's a lot of pluses and minuses in that, and I try to get when I speak to police groups for them to understand we're going to a new world in many years. It isn't bad per se, but it is going to be different.
Scott Henson: Now it's time for errors and updates. First, correcting a small error, in last month's podcast, we discussed a case called Ex Parte Pena about a cop who'd stolen drugs and planted fake drugs to frame a suspect, but halfway through the conversation I began mistakenly referring to Mr. Flores, confusing the case in my mind with the capital defendant accused by a witness who'd undergone hypnosis. The analysis was fine, I just confused the name.
Amanda Marzullo: Which happens all the time. And now for an update. In the September podcast, Scott and I discussed the use of risk assessments in Harris County in ongoing federal litigation there about unconstitutional bail practices. This month, the State Commission on Judicial Conduct issued a rare sanction, and I want to emphasize that these are rare, against three of those magistrates for failing to issue personal bonds so that defendants may be released. According to the Houston Chronicle, these magistrates said that they had been told by Harris County criminal court judges that they should not grant cash-free bonds or more affordable bond rates, and they said that they feared they would be fired if they didn't comply. This testimony corroborates the federal court's finding that magistrate judges in Harris County had been unconstitutionally detaining poor defendants because they can't pay a bail bondsman. The Federal Fifth Circuit Court of Appeals is expected to rule soon in this case, and we'll have an update when that happens.
Scott Henson: Last update, the police unit in Austin chose not to reenter negotiations after the city council rejected a negotiated contract last month leaving Austin police operating without a contract for the first time since the 1990s. Estimates of high numbers of officer retirements because of the city council vote turned out to be overstated by as much as ten fold. Only five more officers retired than in 2015 for example, and now the city finds itself with up to $10 million dollars that can and should be spent on other priorities.
Next up, our segment Death in Texas, in which Mandy delves into a case out of Fort Bend County where the victim's family is opposing a death sentence, including his father, who was injured during the crime. Thomas Bartlett Whitaker, known as Bart to his family, is scheduled for execution in February for his role in arranging and an attack on his family, in which his mother and brother died and his father was injured. His father, Kent Whitaker, is seeking clemency for his son, asking the Board of Pardons and Paroles and Governor Abbott to commute his sentence to life in prison. Mandy spoke with Mr. Whitaker about his campaign to save his son's life. We'll publish the full interview soon, but for now, here's an excerpt from their conversation.
Amanda Marzullo: Thank you, Mr. Whitaker, for sitting down with me. I really appreciate it. Why should the Board of Pardons and Paroles change your son's sentence?
R. Whitaker: One of the jobs that the Pardons and Paroles Board has is to be an oversight on the legal system and to make corrections whenever there's something that just is an error that gets through the system, and I think that's the case here. I think the district attorney overstepped in pursuing the death penalty in this case in the first place, and I'm just asking the Board to listen to that and to consider giving him life in prison instead of the execution.
Amanda Marzullo: What about the decision to seek death was an overstep?
R. Whitaker: I think the overstep involved in their decision to pursue the death penalty versus life in prison, they were offered two back to back 40-year first degree murder life in prison options, but they chose to pursue the death penalty anyway, which I understand is their choice, but what makes this egregious is that every victim, and I'm talking about my wife's family, my family, myself, everyone that was involved as a victim in this case, pleaded with them for 18 months not to pursue the death penalty so that we could avoid the horrors of a trial and then what we're facing now of possible eventual execution. I think they overstepped by pursuing that when they should have given the victims a little bit more right in what penalty they pursued.
Amanda Marzullo: Given the nature of the crime in this case, are you tarnishing your wife and son's memories?
R. Whitaker: No, actually I think I'm doing just the opposite. I think I'm honoring their memory. I know I'm honoring what they would want to do in this case. The idea that there's gonna be another death on their name, that would be horrific to them. Anybody that knew Trisha or Kevin, even just a little bit, knows that this is not what they would want, not at all, and I just want the Board to understand just how appalled they both would be at the possibility of Bart being executed.
Amanda Marzullo: Texas is a conservative state. Is clemency for your son consistent with its mindset?
R. Whitaker: Well, as a conservative myself, I don't think it does. I think a real conservative would do the same thing if they were in my shoes. I've been a law and order guy all my life and always will be, but that doesn't mean that I always give a rubber stamp approval to everything that our officials tell us to do. I think it's really important to have a touch of healthy skepticism, otherwise you have things like Nazi Germany where everybody just went along. In this case, I think the district attorney overstepped, it was a decision that should not have been made, and I just feel like it's my responsibility to call them to it. This is kind of inbred in me, I guess. I'm a fifth generation Texan. My great-great-great, however many greats it is, grandfather fought at San Jacinto, and I just believe this is 100% conservative Texas law and order kind of decision.
Amanda Marzullo: What actions can the Board take?
R. Whitaker: Well, really, the Board only has two choices. Either they deny mercy to me and go ahead and kill him, or they, two, recommend that the Governor change his sentence to a life in prison versus the execution. By the way, this isn't asking for anything really special here. The Board, the public, and district attorneys all over the state of Texas routinely defer to victims on whether to spare the life of a killer. I'm just asking for the same courtesy.
Amanda Marzullo: Is this a case about forgiveness?
R. Whitaker: I understand that there are people who don't get it, how I could forgive my son, but we're not asking anybody to forgive him. We're just asking to let him live. There's a big difference between forgiveness and commutation. Commutation just means that you're changing the sentence for something to be more appropriate. It doesn't say that you're forgiving them, letting them off the hook, reducing the severity of the consequences of their act, it just means that there's a more appropriate, more justified sentence that they would give him, and that's all we're asking. We're not asking anybody to forgive him.
Scott Henson: All right, now it's time for our rapid fire segment we call The Last Hurrah. Mandy, are you ready?
Amanda Marzullo: I am ready.
Scott Henson: Court of Criminal Appears recently set aside the cases of Stanley Mosey and Dennis Allen, affirming the trial court's finding that prosecutors withheld exculpatory evidence and information about informants. The men were represented by attorneys from the National and State Innocence Projects, but the court did not agree to the men's actual innocence claims. That means they're not entitled to compensation for their false convictions despite evidence of extreme prosecutor misconduct. Mandy, was justice served?
Amanda Marzullo: Well, that remains to be seen. The issue of whether they will be entitled to state compensation is the subject of ongoing litigation for the federal court, but it was justice that these men have had these sentences reversed, or their convictions reversed and that they're back out.
Scott Henson: Absolutely. A long time coming.
Amanda Marzullo: Felony filings in Oklahoma County, the county seat of which is Oklahoma City, fell 24% after voters in the state approved a reduction in drug penalties that lowered user level possession in most instances to a misdemeanor instead of a felony. Felony filings may have dropped even more, but the new law didn't take effect until July. So Scott, what conclusions can we draw from Oklahoma's experiment?
Scott Henson: That it has worked spectacularly. That exactly what the ... what people said ... blah. Let me back up there. Can you start over please? That it has worked spectacularly, that everything the proponents said were the reasons to pass this law actually came out and have been the case. We've lowered prison populations, we have fewer people in the courts, we have fewer people with felony records, and there's been no spike in crime even though that's what the DAs and the opposition was predicting. We can take from it that it's a huge success and Texas legislatures and legislation of the state should follow suit. We now know this works.
Scott Henson: Okay, last one. The first of the cases from the Twin Peaks biker massacre in Waco is finally going to trial. One hundred and fifty plus defendants were charged with first degree felonies, which carries a sentence up to life in prison. The people who have seen the evidence say all the actual perpetrators were killed during the event. Prosecutors offered plea deals with deferred probation on a misdemeanor charge and defendants so far have turned even that down. Mandy, why would anyone turn down deferred probation when they risk life in prison going to trial?
Amanda Marzullo: You turn down deferred probation in these circumstances if you don't think the prosecution can prove their case and you think your rights have been violated.
Scott Henson: These are some squirrelly cases.
Amanda Marzullo: Yeah.
Scott Henson: All right. We're outta time. We'll try to do better the next time. Till then, I'm Scott Henson with Just Liberty.
Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Goodbye and thanks for listening.
Scott Henson: We'll be back next month with another edition of the Reasonably Suspicious podcast and until then, keep fighting for criminal justice reform is the only way it's going to happen. Shout out to Brandy Grissom, congratulations on qualifying for the Boston Marathon. Good luck.
Amanda Marzullo: Good luck!
Transcript: Reasonably Suspicious podcast, January 2018, Co-hosted by Scott Henson and Amanda Marzullo.
Amanda Marzullo: Hello, I'm Amanda Marzullo. A Granbury man was arrested after texting 911 dozens of time from a bar to complain about alleged over-serving, over-charging, and poor service. So, Scott, was this an appropriate use of our emergency response system?
Scott Henson: Well, the arresting officers didn't think so, but in my defense, by the time they put the cuffs on I was three sheets to the wind, so as far as I'm concerned, that over-serving allegation was totally justified. People have to be held accountable.
Amanda Marzullo: I'm not gonna dispute that. I'm just having trouble understanding your beef here. I mean, over-serving and poor service, isn't over-serving sort of the cornerstone of proper wait staff etiquette?
Scott Henson: I just felt an obligation. I really did. I don't know what to tell you. If you see something, say something. That's what all the signs say. I'm just following the lead of Homeland Security.
Amanda Marzullo: That's who you want to be following. I'm glad you've picked your role models so well, Scott.
Scott Henson: Hello boys and girls, and welcome to the January 2018 edition of the reasonably suspicious podcast covering Texas criminal justice politics and policy. I'm Scott Henson, policy director at Just Liberty, here today with our good friend Amanda Marzullo, whose day job is executive director at the Texas Defender Service. Mandy, what are you looking forward to on the podcast today?
Amanda Marzullo: I'm excited to talk about the Thomas Whitaker case, who's scheduled for execution in February.
Scott Henson: Yeah, you had a great interview with his father.
Amanda Marzullo: Yes. First up though, the Dallas Morning News published a story this month about the process by which the Texas Department of Criminal Justice decides which books to ban from inmates and which ones it allows. Scott caught up with reporter, Lauren McGaughy, who described an [inaudible 00:02:06] of books banned from Texas inmates and some alarming ones that are routinely allowed.
Lauren McGaughy: Yeah, there are a lot of surprises as you can imagine going through about 10,000 banned books and a lot more that are on the allowed book list. Some of the most surprising ones were, there was a book written by 50 Cent, the rapper, that went into detail about the criminal drug trade and that was on the allowed list, but then there was the famous economics book "Freakonomics" which had a section on abortion and a section on drugs and that was banned for what they called racial content. There was just a lot of things that seemed incongruous and didn't make a lot of sense.
Scott Henson: Probably no racial content in 50 Cent's book.
Lauren McGaughy: I don't know. I've never read it, but ... the title and description alone at least went into detail about the drug trade.
Scott Henson: Or "Mein Kampf," which no racial content there probably.
Lauren McGaughy: No, no. David Duke's book arguing for separation of the races was also on the allowed list, which I would assume that has some racial content in it if he's arguing for that.
Scott Henson: One imagines.
Amanda Marzullo: And the process by which TDC makes those decisions is rudimentary at best.
Lauren McGaughy: It's kind of interesting, because you would assume that maybe there's some kind of a committee or something that goes through every single request or makes these decisions from some lofty place in some board room, but the first decision is actually made by the mail clerk in the facility where the inmate is living. If the inmate is incarcerated some place and they order a book, that book comes into the mail room and that individual gets to decide whether they think it should be on the allowed list or the banned list.
Scott Henson: That person is not a mail clerk. They're a literary critic.
Lauren McGaughy: In that sense, they are. Now, the inmate can appeal that and try to fight the decision if the book ends up on the banned list, but if they lose, they oftentimes have to pay to have it sent back or to a friend, or they'll burn it or get rid of it, something like that.
Scott Henson: We're burning books?
Lauren McGaughy: Maybe I should take that back. I don't know if they're actually incinerated, but the books are disposed of, I believe was the term if they couldn't find an alternative for it. I think that is the crux of what they might be looking at, now that they're reviewing the policy is, is the mail clerk the perfect person to be making that decision right off the bat, because obviously it's gonna be very subjective, person to person.
Amanda Marzullo: So Scott, there doesn't seem to be any rhyme or reason here, so what's going on?
Scott Henson: It's a really strange situation, because there's an incredibly vague policy in place and it's being implemented by the lowest possible people on the totem pole, literally the people in the mail room who receive the mail are the ones calling the shots on this, so it really just appears to be a complete backwater, where no one has examined this at all, and the policy that they're actually basing this on, you had pointed this out to me, really doesn't even mention a lot of the things that they're supposedly banning books based on. There's no category in the TDCJ policy that says that racial content needs to be banned, and yet that was the basis that they banned Freakonomics from being in a prison library. I found it very bizarre and I was happy that Chairman James White sought out a review of this policy and TDCJ is now reviewing it because a lot of it didn't make much sense.
Amanda Marzullo: You know, a lot of it doesn't seem to make sense. It would be interesting to look at the decisions and see how they're being made, because it's sort of pointing out how something is implemented is policy at the end of the day.
Scott Henson: Especially in a prison, where the prisoners have very little ability to control their own situation, their own lives, very few alternatives, they don't get to go to the bookstore if the book they want is not in the prison library.
Amanda Marzullo: Yeah. We'll keep watching this story and see how it develops.
Scott Henson: Next up, the Texas State Bar's Committee on Legal Services to the Poor and Criminal Matters has issued a report that's highly critical of the state council for offenders. The legal department representing inmates at TDCJ alleging the agency is chronically under-funded and under-staffed and that TDCJ interferes with the legal decisions of attorneys there on behalf of their clients. Mandy, tell us a little about the committee's study and what they found.
Amanda Marzullo: Scott Ehlers, who is the primary author on this report and is responsible for doing the lion's share of the work, conducted a survey of the state council for offenders staff ...
Scott Henson: And former staff and stakeholders
Amanda Marzullo: And former staff and a number of stakeholders, including I believe, the prosecution in this instance to kind of get a sense of what is going on there, and they sort of pointed to two key findings. The first is a lack of independence of this organization. It's clear that the TDCJ board is influencing staff's decision on individual cases, which raises serious questions, and I want to say questions about whether this organization is structured in a way that allows for the ethical handling of defense cases. One attorney reported that he was told not to make certain arguments.
Scott Henson: Right. That was on the civil commitment for sexual offenders, and this has been an area where TDCJ has been under immense amounts of litigation over the ... in recent years and has had lots of problems, so TDCJ has an obvious interest in not having certain defense arguments against its position made in a strong fashion and the fact that they control the defense lawyers and are able to dictate which arguments they make and don't really was astonishing. There was this one attorney who said that they, along with the rest of the civil commitment detection, were told not to pursue a certain type of defense in civil commitment cases. That's pretty explicit. There was another one very similarly where they were directed to withdraw from representing a client after their director returned from a board meeting. So as you say, this does raise questions.
Now, the flip side of this is, this is based almost entirely on a survey. There's not a rigorous investigative report or an audit or something that extreme behind this. This is a survey, and for the most part is just reporting what these attorneys said in response and making an analysis based on that, and analyzing it. Based on the Bar's Associations ten standards for indigent defense, and I thought that was a reasonable to compare it to, the Bar Association standards, but it's hard to say that the survey just proved these points. It raised questions that now some reporter or state agency or legislative committee or someone need to take this and ...
Amanda Marzullo: Delve further into it.
Scott Henson: Delve into it. It's a red flag is what it is.
Amanda Marzullo: Exactly. The other big piece was the under-funding of this organization. It's ... I will say this is indicative of a big problem within our criminal justice system in general, but there really is one to one parody in this instance between the State Council for Offenders and the prosecuting agency that handles these cases. Nearly everyone who is in TDCJ's custody does not have a job and therefor is indigent and cannot afford the cost of their legal representation, and likewise, the prosecutors are gonna handle every single case that needs to be filed. It's one to one, yet the State Council for Offenders is funded only at a 75% rate roughly, or has three quarters of the budget let's say that the prosecution office does. If you look at that, that is probably still ... only captures a piece of the under-funding. Another thing is prosecutors in Texas have an independent fund for their pensions. That is a line item that is eliminated from every prosecutor budget, period.
Scott Henson: In this agency you say has 75% of the budget of the prosecutor, then they're also paying for their lawyer's pensions and the prosecutor's agencies are not, so that's really even less money available for actually handling the cases.
Amanda Marzullo: Yeah. We're talking about their overhead and staff salaries and benefits that's going to be substantially higher, several thousand dollars.
Scott Henson: Per lawyer.
Amanda Marzullo: Per lawyer, 10-15% higher.
Next up, in our August and October podcasts, Scott and I discussed a new book out last year, which was co-authored by Ron DeLord, who is the founder of the Combined Law Enforcement Associations of Texas. He was also the lead negotiator for the union side on the Austin police contract that was famously rejected by the City Council last month. We'll publish the full interview soon, but for now, here's an excerpt in which DeLord predicted the end of defined benefit pensions for police officers within the next couple of decades.
Scott Henson: I'm here today with Ron DeLord who has a long and storied history with the Texas Police Union movement. Ron, I'm really happy you came to talk with me today. Thank you for joining us.
Ron DeLord: Well I'm glad to be here. I apologize for my voice. It's allergy season in Austin.
Scott Henson: One of the themes in the book is the police union movement has been so successful at accumulating power and boosting wages and getting very generous pension benefits that you're at a moment in history where you expect a backlash. In fact, I've said a couple of times in earlier podcast segments that some of your comments were really very precedent and almost like you were looking into a crystal ball on some of the pension fights at the legislature, the Austin police contract, and some of this. Let's start with pensions.
Ron DeLord: Okay.
Scott Henson: The legislature this session came and did this big corrective, I know the Dallas pension had gotten to the point where they were fearing it would literally bankrupt the city ...
Ron DeLord: That's correct.
Scott Henson: If nothing had happened and the Houston pension was perhaps a few years behind that in terms of getting to a crisis. Talk to us a little about whether or not, have the unions overreached? None of the cities really have fully funded the pensions out. They're not contributing enough to cover them. Eventually those bills are gonna come due and we've had this can't tax them, the legislature's gonna limit their ability to generate more revenue. Are we reaching a crisis point here that, or has the Dallas and Houston fix done it?
Ron DeLord: No. I preach a lot about just the paradigms that change and the change agents that drive a paradigm shift, and we're in a paradigm shift. I said this back in '07 and no police union leader believed me, '08 we had the recession, it just hid some of the problems for a while, and those problems have come back, and I believe that, and when I tell police this, it's not that I don't believe in a defined benefit plan, in fact, I think every American ought to have one, that the employer ought to be required to put money in a fund and you as a worker ought to be required to put it in there, and you shouldn't be able to take it out and spend it, and we should have ... and I know it's Big Brother making you do something, but the problem is the bulk of Americans have no pension now and there's going to be serious, serious troubles, well they're already coming.
We're moving out of defined benefit plans as a nation, and that's sad in many ways. The big change agents were the failure of the ALFCO, its decline, it's not that I don't like them, but you go from 30, 40% of the private sector work force to 6, you're almost reaching a point of being irrelevant. So, because people have abandoned the unions, and because those unions who had the same benefits are out, the private sector now is only down to a very small percentage. In fact, there is virtually no major company has a defined benefit plan. Once they leave and leave just the public sector, what's happened is, is kind of a strange deal.
A friend of mine, Tyler Eisen, who was present of the Los Angeles Police Protective League, he's retired, made a very astute observation. He said, "When we made little money and we got 50% and could retire at 20 years, nobody really cared. We could go and just like the military, we'd do 20 and we'd go work somewhere else, and that would just be a little piece of our life, but over time, we built in higher and higher wages, we moved that 50% to 75% to 80% to 90%, but we kept raising the wages also, and because ... there's a lot of risk in it because the money is not just what you put in, it has to make money in the market and when the markets are volatile, which they have been in these recessions, you get in a hole, and then employers don't want to catch up.
We're going to a system comparable to Australia. If you look at Australia, and I spent a lot of time there, they started phasing out defined benefit plans 20-some odd, 25, 30 years ago. You have all these layers where you might have a pension, but the next person would go to what they call super enumeration, which is like a 401(k). We will transition out of defined benefit. It may be 20, 25 years, and I tell the police this, I like it. I think it's designed for the military, it's designed for places where we want your service for 30 years or so, but the truth is, we've got to make it such that it will change. What it will do, what it did to Australia when they went over, is you will not have police stay for long periods of time. You will have police react just like the private sector. In Australia, the average male officer works 14 years, the average female seven. That seven is probably about the first time they have a child. Then they go on because it doesn't really matter, because when an officer gets about 14 years as a male, they've done and seen it, they go on. They constantly hire.
The police forces are very, very young and that has become acceptable to them that they're always training and basically recruit you like the military. Come on over and do public service, work in the police service, and when you get tired, go on. There's not a fixed day for you to leave. That's where we're going. There's a lot of pluses and minuses in that, and I try to get when I speak to police groups for them to understand we're going to a new world in many years. It isn't bad per se, but it is going to be different.
Scott Henson: Now it's time for errors and updates. First, correcting a small error, in last month's podcast, we discussed a case called Ex Parte Pena about a cop who'd stolen drugs and planted fake drugs to frame a suspect, but halfway through the conversation I began mistakenly referring to Mr. Flores, confusing the case in my mind with the capital defendant accused by a witness who'd undergone hypnosis. The analysis was fine, I just confused the name.
Amanda Marzullo: Which happens all the time. And now for an update. In the September podcast, Scott and I discussed the use of risk assessments in Harris County in ongoing federal litigation there about unconstitutional bail practices. This month, the State Commission on Judicial Conduct issued a rare sanction, and I want to emphasize that these are rare, against three of those magistrates for failing to issue personal bonds so that defendants may be released. According to the Houston Chronicle, these magistrates said that they had been told by Harris County criminal court judges that they should not grant cash-free bonds or more affordable bond rates, and they said that they feared they would be fired if they didn't comply. This testimony corroborates the federal court's finding that magistrate judges in Harris County had been unconstitutionally detaining poor defendants because they can't pay a bail bondsman. The Federal Fifth Circuit Court of Appeals is expected to rule soon in this case, and we'll have an update when that happens.
Scott Henson: Last update, the police unit in Austin chose not to reenter negotiations after the city council rejected a negotiated contract last month leaving Austin police operating without a contract for the first time since the 1990s. Estimates of high numbers of officer retirements because of the city council vote turned out to be overstated by as much as ten fold. Only five more officers retired than in 2015 for example, and now the city finds itself with up to $10 million dollars that can and should be spent on other priorities.
Next up, our segment Death in Texas, in which Mandy delves into a case out of Fort Bend County where the victim's family is opposing a death sentence, including his father, who was injured during the crime. Thomas Bartlett Whitaker, known as Bart to his family, is scheduled for execution in February for his role in arranging and an attack on his family, in which his mother and brother died and his father was injured. His father, Kent Whitaker, is seeking clemency for his son, asking the Board of Pardons and Paroles and Governor Abbott to commute his sentence to life in prison. Mandy spoke with Mr. Whitaker about his campaign to save his son's life. We'll publish the full interview soon, but for now, here's an excerpt from their conversation.
Amanda Marzullo: Thank you, Mr. Whitaker, for sitting down with me. I really appreciate it. Why should the Board of Pardons and Paroles change your son's sentence?
R. Whitaker: One of the jobs that the Pardons and Paroles Board has is to be an oversight on the legal system and to make corrections whenever there's something that just is an error that gets through the system, and I think that's the case here. I think the district attorney overstepped in pursuing the death penalty in this case in the first place, and I'm just asking the Board to listen to that and to consider giving him life in prison instead of the execution.
Amanda Marzullo: What about the decision to seek death was an overstep?
R. Whitaker: I think the overstep involved in their decision to pursue the death penalty versus life in prison, they were offered two back to back 40-year first degree murder life in prison options, but they chose to pursue the death penalty anyway, which I understand is their choice, but what makes this egregious is that every victim, and I'm talking about my wife's family, my family, myself, everyone that was involved as a victim in this case, pleaded with them for 18 months not to pursue the death penalty so that we could avoid the horrors of a trial and then what we're facing now of possible eventual execution. I think they overstepped by pursuing that when they should have given the victims a little bit more right in what penalty they pursued.
Amanda Marzullo: Given the nature of the crime in this case, are you tarnishing your wife and son's memories?
R. Whitaker: No, actually I think I'm doing just the opposite. I think I'm honoring their memory. I know I'm honoring what they would want to do in this case. The idea that there's gonna be another death on their name, that would be horrific to them. Anybody that knew Trisha or Kevin, even just a little bit, knows that this is not what they would want, not at all, and I just want the Board to understand just how appalled they both would be at the possibility of Bart being executed.
Amanda Marzullo: Texas is a conservative state. Is clemency for your son consistent with its mindset?
R. Whitaker: Well, as a conservative myself, I don't think it does. I think a real conservative would do the same thing if they were in my shoes. I've been a law and order guy all my life and always will be, but that doesn't mean that I always give a rubber stamp approval to everything that our officials tell us to do. I think it's really important to have a touch of healthy skepticism, otherwise you have things like Nazi Germany where everybody just went along. In this case, I think the district attorney overstepped, it was a decision that should not have been made, and I just feel like it's my responsibility to call them to it. This is kind of inbred in me, I guess. I'm a fifth generation Texan. My great-great-great, however many greats it is, grandfather fought at San Jacinto, and I just believe this is 100% conservative Texas law and order kind of decision.
Amanda Marzullo: What actions can the Board take?
R. Whitaker: Well, really, the Board only has two choices. Either they deny mercy to me and go ahead and kill him, or they, two, recommend that the Governor change his sentence to a life in prison versus the execution. By the way, this isn't asking for anything really special here. The Board, the public, and district attorneys all over the state of Texas routinely defer to victims on whether to spare the life of a killer. I'm just asking for the same courtesy.
Amanda Marzullo: Is this a case about forgiveness?
R. Whitaker: I understand that there are people who don't get it, how I could forgive my son, but we're not asking anybody to forgive him. We're just asking to let him live. There's a big difference between forgiveness and commutation. Commutation just means that you're changing the sentence for something to be more appropriate. It doesn't say that you're forgiving them, letting them off the hook, reducing the severity of the consequences of their act, it just means that there's a more appropriate, more justified sentence that they would give him, and that's all we're asking. We're not asking anybody to forgive him.
Scott Henson: All right, now it's time for our rapid fire segment we call The Last Hurrah. Mandy, are you ready?
Amanda Marzullo: I am ready.
Scott Henson: Court of Criminal Appears recently set aside the cases of Stanley Mosey and Dennis Allen, affirming the trial court's finding that prosecutors withheld exculpatory evidence and information about informants. The men were represented by attorneys from the National and State Innocence Projects, but the court did not agree to the men's actual innocence claims. That means they're not entitled to compensation for their false convictions despite evidence of extreme prosecutor misconduct. Mandy, was justice served?
Amanda Marzullo: Well, that remains to be seen. The issue of whether they will be entitled to state compensation is the subject of ongoing litigation for the federal court, but it was justice that these men have had these sentences reversed, or their convictions reversed and that they're back out.
Scott Henson: Absolutely. A long time coming.
Amanda Marzullo: Felony filings in Oklahoma County, the county seat of which is Oklahoma City, fell 24% after voters in the state approved a reduction in drug penalties that lowered user level possession in most instances to a misdemeanor instead of a felony. Felony filings may have dropped even more, but the new law didn't take effect until July. So Scott, what conclusions can we draw from Oklahoma's experiment?
Scott Henson: That it has worked spectacularly. That exactly what the ... what people said ... blah. Let me back up there. Can you start over please? That it has worked spectacularly, that everything the proponents said were the reasons to pass this law actually came out and have been the case. We've lowered prison populations, we have fewer people in the courts, we have fewer people with felony records, and there's been no spike in crime even though that's what the DAs and the opposition was predicting. We can take from it that it's a huge success and Texas legislatures and legislation of the state should follow suit. We now know this works.
Scott Henson: Okay, last one. The first of the cases from the Twin Peaks biker massacre in Waco is finally going to trial. One hundred and fifty plus defendants were charged with first degree felonies, which carries a sentence up to life in prison. The people who have seen the evidence say all the actual perpetrators were killed during the event. Prosecutors offered plea deals with deferred probation on a misdemeanor charge and defendants so far have turned even that down. Mandy, why would anyone turn down deferred probation when they risk life in prison going to trial?
Amanda Marzullo: You turn down deferred probation in these circumstances if you don't think the prosecution can prove their case and you think your rights have been violated.
Scott Henson: These are some squirrelly cases.
Amanda Marzullo: Yeah.
Scott Henson: All right. We're outta time. We'll try to do better the next time. Till then, I'm Scott Henson with Just Liberty.
Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Goodbye and thanks for listening.
Scott Henson: We'll be back next month with another edition of the Reasonably Suspicious podcast and until then, keep fighting for criminal justice reform is the only way it's going to happen. Shout out to Brandy Grissom, congratulations on qualifying for the Boston Marathon. Good luck.
Amanda Marzullo: Good luck!
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6 comments:
http://www.chron.com/news/houston-texas/houston/article/FBI-reportedly-involved-in-shooting-in-northeast-12524172.php?ipid=hpctp&utm_campaign=twitter-desktop&utm_source=CMS%20Sharing%20Button&utm_medium=social
Grits, the Parole Board sure does seem to be on a roll here lately. Maybe the Koch brothers and TPPF can convince the Lege to close a few more prisons so we can release a few thousand more predators to prey upon innocent Texans.
Ooooh, I know! Maybe if we use scary language like "thousands of predators" we can trick everyone into believing that anecdotes = data or that somehow we're NOT living in the safest era in living memory in Texas.
Funny how the advent of the "safest era in living memory" corresponded with the largest prison expansion in Texas history. Hmmmm...perhaps there's a connection there that anyone, with even a modicum of common sense, can recognize.
That would be true IF states which imprison at much lower rates than Texas hadn't seen EVEN GREATER crime declines. In that context, it's clear the two aren't as closely connected as you say.
The best estimates have incarceration responsible for about a quarter of the crime decline, with diminishing returns the more people are locked up.
https://gritsforbreakfast.blogspot.com/2018/01/reasonably-suspicious-podcast-why-mein.html?m=1
Is this an accusation of racism against the Texas Department of Corrections Administration practices because they do not allow books like “Roots” or “The Color Purple” to be read, but do allow self-radicalizing books like “Mein Kampt.”
It does mystify the mind that one book — Mein Kampt”— would be allowed in a prison library to stir up notions of white supremacy while suppressing other pot-stirring books such as “The Color Purple.”
But here’s why neither of these books belong at the hands of the inmates confined in the racially charged Texas Department of Corrections:
At least when I was imprisoned in TDC each and every time the Texas prison rebroadcast the series, “Roots” on television, inmates clashed and died.
Unless you’ve ever been forced to move behind the Walls of a Texas prison, you have no idea what it’s like. It’s a world hidden within a world. This ex-inmate easily understand why the racially-charged book, “The Color Purple” would be banned by the Administration of the Texas Department of Corrections.
Every time these programs aired on television, it stirred racial violence and hatred. It was really that bad and that dangerous. Unless you’ve been there, you have no idea what it’s like to be trapped within a hate factory and your only crime is being white or black. I know. I was there for 22 years.
So at least I understand why these and other books would be banned.
The media cannot apply the world’s outside social norms onto the Texas prison system and stir that pot. Inmates die when you do that.
Take the time Houston Radio Station KPFT published over the air on one of its Prison Programs at the time a purported “Snitch list.” It was a list of names of suspected Texas prison inmates that were supposedly ratting to the man. Executed Texas death row inmate James Demouchette was one of the names on that list read over the air that night by Natasha.
In August of 1983, I watched in horror as James Demouchette stepped into the G-15 Dayroom and stabbed fellow inmate Johnny Swift 16 times to death because radical Writ Writer Johnny Swift has wrote the prison program sticking Demouchette’s name on that list. Demouchette may have been a lot of things — called the most dangerous Killer ever housed in a Texas prison — but he was no snitch. He was a dangerous sonofabitch, yes, and calling him a “snitch” was an unappealable, automatic death sentence.
KPFT and that particular radical prison program was never held responsible for getting Swift killed.
I cite this as an example of what can happen when the media gets involved in inmate prison politics, not fully understanding the consequences of their actions.
For what it’s worth....
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