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?