Saturday, March 24, 2018

5th Circuit benchslapped! All about the money, Tx bodycam law a boon to bad cops, and other stories

Here are a few odds and ends which merit Grits' readers interest while my own is focused elsewhere:

The US Supreme Court issued a unanimous benchslapping to the Fifth Circuit Court of Appeals in Ayestas v. Davis for denying funds for a defense investigator to develop a record about the defendant's mental health and family history. Mandy Marzullo and I had discussed the case on the Reasonably Suspicious podcast in November.

All about the money
The Texas House Appropriations subcommittee that covers criminal-justice will hear testimony next month regarding two interim charges which may interest Grits readers: Adult and juvenile probation funding formulas, and whether to establish a fee-for-service model at DPS crime labs to cover the looming shortfall.

The former is important because adult probation directors are the most vocal and strident opponents of sentencing reform, fearing that reducing drug-possession charges to a misdemeanor, for example, would result in a large, immediate drop in revenue. So debates over their funding formula are central to whether the Legislature can muster the political will to continue decarceration reforms. As for the crime labs, the Legislature only gave them enough general revenue funding to cover part of the biennium, then the Governor eliminated new fees created to cover the rest of their budget. As of now, they're expected run out of money completely a few months (maybe we'll learn how many at this hearing) after the new fiscal year begins in September.

Texas bodycam law a boon to bad cops
Grits readers are well aware of Texas' crappy bodycam law, but now thanks to a new Attorney General opinion, even Republican District Attorneys are learning just how far this bad law goes to protect cops who cross the line. Dallas DA Faith Johnson had asked the Attorney General whether, under the law, an officer was entitled to review only his own bodycam footage, or all bodycam footage from the scene. After all, that would mean the officer had LOTS more information to which he would not have had access at the time before he's required to make a statement, creating a risk that he or she might embellish or alter their story to fit a narrative instead of just testifying truthfully. Indeed, in her letter Johnson feared that, even if an officer didn't alter his or her story, it would be difficult to combat a public perception that that had happened. But Paxton said officers get to see everything. See coverage from Michael Barajas at the Texas Observer.

Prosecutor's song choice may connote misconduct
Texas' first death sentence of 2018 involved a case from a small town featuring alleged prosecutor misconduct, including Brady violations and, at closing, playing "an emotional song from the hit 2012 movie Pitch Perfect in a bid to allude to evidence the judge had already ruled inadmissible." (Cue NFL hall-of-famer Chis Carter declaring, "C'mon, man!") Wrote Lauren Gill at InJustice Today, "in 2017, nearly half of the stays of execution granted in the state involved cases that 'may have been tainted by false or unreliable evidence,' according to the website The Open File, which tracks prosecutorial misconduct."

Police 'testilying'
When Grits stopped working professionally on police accountability topics after leaving the ACLU of Texas in the mid-aughts, my focus on mendacious informants and testilying police officers waned. But it remains a significant problem, and the New York Times recently published a feature on police perjury that's well worth reading. They're citing New York examples, but it's by no means only a New York problem.

Texas should act to improve criminal-justice data
Now that we have a different governor, isn't it time for Texas to consider the re-creation of the Criminal Justice Policy Council or something similar? The New York Times just published a feature on "missing" criminal justice data and how much policy is made on the topic flying more or less blind thanks to the lack of it. It's a fair point. After Rick Perry fired Tony Fabelo and line-item vetoed the Criminal Justice Policy Council back in 2003, Texas has had various agencies and actors pick up these functions piecemeal. But the left hand seldom sees what the right is doing and often it's left to outlets like this blog or various nonprofits to connect the dots. But that should be somebody's job in the government. Now (or rather, 2019) would be a good time to bring back that sort of capacity.


Dully said...

re: Prosecutor Misconduct

The news article doesn't state anything about a State Bar complaint against Hardin County District Attorney David Sheffield or Assistant District Attorney Bruce Hoffer. Is this yet another example where the problems have been identified yet no one takes any action to prevent the problems from occurring again? Brady v. Maryland has been on the books for over 50 years, yet it is repeatedly ignored without consequence. It appears as if Texas has a countless number illiterate shitheels as prosecutors that really need to find new occupations.

Steven Michael Seys said...

You're right, Dully, but they're not just lawyers, a profession infamous for shady ethics, they're politicians too. That makes prosecutors the worst of both worlds.

Ray Hill said...

It was not the whole 5th Circuit Court. It was a three judge panel and I know two of them. Both of those I know have questionable legal ethics and lake sound minds. Jerry Smith once as city attorney of Houston threatened my lawyers during his appointment process that if they continued with Houston v Hill (107 S Ct 2502) he would use his position on the 5Th Circuit to hurt their future clients. We proceeded anyway and won an 8 to 1 SCOTUS decision against him. Edith Jones is a real piece of work she has hallucinations and believes every conspiracy theory she hears. The En Banc hearing will straighten out this mess. Your boast is premature
. said...

Here's my brief on a current perjury habeas action;Hi,

Here's the link to the file:!AmtxDMxE6rUykXyy2_Nnpa6sKVOU

Shared from Word for Android

john said...

Judges are sickeningly evil. Was it Ben Franklin who said they feared they didn't put enough accountability on the Judiciary? What GOOD is a totally-corrupted system??, AS IF LAWS--laws used only for the protection of those in power, the lawyers, the judges, the politicians, and other rich. YES RICH--Earth has always been a class war. THE FILTHY RICH.
Don't worry, white people never riot.
But the A.G. ruling in favor of THE COPS' WAR ON AMERICA is expected, no surprise, at all. Try and get the A.G. to force cops to show you the evidence, or even the record of their actions, and they cover it up--because they don't HAVE to. BUT THEY GET ALL PROTECTIONS POSSIBLE.
You better quit writing articles exposing them, or they might "fear for their lives."

Anonymous said...

Re: probation funding formulas, I know several CSCDs are "against" sentencing reform (mainly in reducing state jail felony drug cases to misdemeanors) because the state isn't paying CSCDs to supervise misdemeanors offenders after the first 6 months. The rumor mill even floated an idea that the state was going to stop funding misdemeanor probation altogether. CSCDs don't have a tax base from which to pull funding, so local jurisdictions could start getting creative with adding fees like probation fines, increased fees for making payments, transfer fees, assessment fees, fees for having fees, on top of the already expensive $60/month supervision fee and court fees (hell, there are jurisdictions out there already charging all these fees). A reasonable funding formula needs to be put in place or probation will need to be funded the way parole is.

Anonymous said...

Police 'testilying' When they talking they lying.

Anonymous said...

7:23 AM

If CSCD's only receive funding for 6 months why does law permit 2 year terms of probation for misdemeanor offenses? Seems like a logical idea to reduce terms of misdemeanor probation to 6 months? OR shift the cost of misdemeanor probation terms beyond 6 months to the county.

Maybe more offenders sitting in jail will be willing to plea to 6 month probation instead of tapping out.
Has anyone heard of a misdemeanor court in Texas releasing an offender from probation early?

Anonymous said...


"Full Frontal" with Samantha Bee has a short rant on Prosecutor misconduct from a couple weeks back. She even briefly mentions the Ken Anderson/Michael Morton debacle.

It's funny, if not sad.

Bert said...

Anon 8:50, most misdemeanor courts are willing to release certain people from probation early, the DA's office has long supported it as well. You just have to have the right friends in cases that can't go away outright and you will find even the easiest of terms won't matter. For the run of the mill citizen, it is not nearly as common though some judges are more reasonable than others. But the goal should never be to get more people to accept a plea bargain, make the state prove its case and you'll find a lot of juries are smarter than people give them credit for.

As far as the overall comments about police lying, either on the stand or elsewhere, I've known quite a few and met quite a few when I served in a review board capacity. Playing the "testilying" card so frequently and quickly is often the result of sloppy, lazy, or wishful thinking on the part of lawyers or activists. In many cases, the cop either honestly believes in what he is saying or he just doesn't understand exactly what is being asked. Across the state, most police departments accept a high school diploma or military service rather than require a college degree, in part to save money and otherwise because the pool of potential candidates just isn't big enough. That is why larger agencies offer financial incentives to those with degrees and the resulting salaries are much more. It doesn't mean there aren't some who flat out lie or knowingly deceive but too many make the claim at the slightest sign of disagreement and it discredits the label.