Friday, March 30, 2018

March Reasonably Suspicious Podcast: Primary election wrap-up, pushing #cjreform in state party platforms, unconstitutional legal fees, Harris County bail suit update, a stunning judicial power play, and more

Sliding in under the wire at the end of the month, check out the March 2018 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice politics and policy. Subscribe on iTunes, GooglePlay, or SoundCloud, or listen to the podcast here:

Here's what my co-host Mandy Marzullo and I talked about this month:

Top Stories
Primary election roundup
  • Recapping Texas contested Texas DA and Court of Criminal Appeals races
  • Comparing "progressive" DA candidates in Dallas and elsewhere to Philadelphia's Larry Krasner
  • Update on Just Liberty's campaign to include criminal-justice reform in both Texas state party platforms. Includes Just Liberty's catchy jingle done by some of the same amazing musicians who performed our original podcast music.
Check in on Texas pretrial reform litigation
  • Harris County bail litigation: Interview with Susanne Pringle, executive director of the Texas Fair Defense Project, regarding the 5th Circuit's ruling in the Harris County bail litigation in which her group is one of the plaintiffs.
  • Travis County plea mill challenged: Local attorneys file a demand letter challenging misdemeanor dockets where lawyers must negotiate plea bargains almost immediately after receiving the file and meeting their clients for the first time.
The Last Hurrah
Find a transcript of the podcast below the jump.

Thursday, March 29, 2018

Open records review should include criminal justice, and other stories

A few quick hits before I finish editing our podcast today:

CCA takes up cell-phone location data case
Grits was a bit surprised to see that the Texas Court of Criminal Appeals granted review on Ex Parte Christian Sims involving Fourth Amendment/cell-phone location data issues, given that the US Supreme Court's ruling in Carpenter is expected to come out this term. See the petition here and a case summary from the State Prosecuting Attorney.) OTOH, the CCA and SCOTUS are addressing slightly different questions: Whether cell-phone location data is subject to Fourth Amendment protections is the question at stake in Carpenter, while Sims asks whether Texas' statutory exclusionary rule applies to violations of the Fourth Amendment and Art. 1, Sec. 9 of the Texas Constitution.

Possible innocence case
DNA testing excluded a Tarrant County man who's been in prison 19 years for alleged child molestation and point to another, unknown party. Prosecutors insist he's guilty, anyway.  Good coverage from the Fort Worth Star Telegram.

Open records review should include criminal justice
The House Committee on Government Transparency meets next week in part to discuss updating open records laws (see coverage from the Caller Times). The push to do so doesn't involve criminal justice, but transparency laws in that area need serious attention. See this Grits commentary from 2016 regarding aspects of the Public Information Act related to the justice system which have been gutted in favor of opacity over the last three decades.

Skimping on mental health boosts crim-just costs
The SA Express News recently featured a good editorial on how the Texas Legislature's failure to fund mental health services impacts the criminal-justice system. Reported the paper:
[Texas] taxpayers are footing an estimated annual bill of $1.4 billion in emergency room costs and another $650 million through local justice systems to address mental illness and substance abuse disorders. 
In Bexar County alone, 10 percent of the 31,438 individuals booked in the county lockup were diagnosed and treated for mental illness.
The editorial touted the recently created Judicial Commission on Mental Health as a potential vehicle for suggesting reforms.

Wednesday, March 28, 2018

Forensic hypnosis under fire

In December, Grits posted a "brief primer on forensic hypnosis" after we'd discussed a capital case out of Farmer's Branch involving a hypnotized witness in the November Reasonably Suspicious podcast. Now, Christian McPhate at the Dallas Observer has published an extensive profile of that case and how the courts and law enforcement have handled hypnosis-influenced testimony in Texas over time. Anyone interested in junk-science issues should give it a read.

Monday, March 26, 2018

Benchmark created for 'progressive prosecutors,' and other stories

Grits doesn't have time to blog on these topics at the moment but y'all should probably be aware of them:

Philly prosecutor pioneering decarceration measures
Grits has argued before that electing "progressive" prosecutors wouldn't necessarily stop mass incarceration unless they used their discretion in ways that none of our Texas folks have done yet. Larry Krasner in Philadelphia is the first DA in the nation to actually attempt to use his discretion in that way. Here's the memo he sent to his prosecutors changing practices. Give it a read, there's cool stuff all the way through to the end. See coverage from Slate. This will provide a blueprint for what can be expected of future, self-styled "progressive prosecutors" who win District Attorney races. By contrast, for example, in the Dallas primary one couldn't slide a piece of paper between the positions of the two DA candidates in the Democratic primary, both of whom wanted to claim a "progressive" mantle. It would have been a more interesting race if those two could have been made to tell voters whether they'd go so far as Mr. Krasner, and if not, why not.

Corrections chair target of sleazy GOP oppo campaign
Republican Steve Stockman decided to play hardball with Texas House Corrections Committee Chairman and friend-of-the-blog James White on the off chance he decided to run for Congress, including planting an intern in his capitol office, among other dirty tricks.

Youthful Offender Program may receive more scrutiny
Briscoe Cain, a Tea Party Republican state rep, is calling for an investigation into the problems at the TDCJ Youthful Offender Program that caused them to fire the warden and move the program from Amarillo Brazoria County to Huntsville. Absurdly, TDCJ's new flack has portrayed the incident spurring the changes as not involving systemic flaws, but nobody fires wardens or moves programs which have been in place for years unless there's a systemic problem. Such comments speak to a culture of denial in the agency. See related Grits coverage.

Pantsed, then shot dead
Before video footage was common, these sorts of incidents were more easily swept under the rug. A Harris County Sheriff's Deputy shot a man with his pants around his ankles. And in Fort Worth, video led to the indictment of a police officer who attacked a young black man at a local hospital. "[Jon Preston] Romer ... was indicted last week on charges of official oppression, aggravated perjury and making a false report to a police officer in connection with the incident."

Litigation to watch
A Texas prisoner's family has sued after his suicide, alleging that TDCJ didn't provide him with needed medications.

Good riddance
Read a post mortem on the Abel Reyna campaign.

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.

Friday, March 23, 2018

Justice Needs a Platform: Young Republican Federation backs justice reform

With most county and senate-district political conventions being held tomorrow for both major political parties, readers will recall that Just Liberty, working with key allies, had proposed a variety of resolutions to amend both the Republican and Democratic Texas state party platforms to include key criminal-justice reform provisions. If you haven't heard the little jingle we created to promote this campaign, check out this promo for people attending Democratic conventions tomorrow:

Notably, the Texas Young Republican Federation took up the banner and helped propose these resolutions at the grassroots level in the GOP. Check out an op ed by Jason Vaughan, the YRs State Republican Executive Committee liaison, laying out the 16 resolutions and declaring justice reform a top priority for his group.

Opined Mr. Vaughan, "Texas Young Republicans represent the entire spectrum of the Republican Party. Because of this, sometimes finding agreement on specific policy can be tough. There can be a lot of differences on how Republican principles should become policy. The one area where we see overwhelming support is criminal justice reform."

This is a big reason why justice reform is possible in a red state like Texas. Significant constituencies within the GOP base support it, including more than a few young people who represent the future of the party.

Thursday, March 22, 2018

On the limits of tuff-on-crime ideology at the Texas Court of Criminal Appeals

One of Grits' favorite pastimes is parsing contentious Texas Court of Criminal Appeals decisions to better understand the dynamics and factions arising on various topics. Since nobody in the mainstream media routinely covers these cases, this usually involves tilling virgin soil. And such is the situation with Ex Parte Jeremy Wade Pue, which was decided on March 13 but has been ignored in the press. Mr. Pue was represented by an attorney from the State Counsel for Offenders.

Judge Bert Richardson wrote the main opinion, with Judges Mary Lou Keel and Sharon Keller authoring concurrences and Judge Kevin Yeary isolated by himself in dissent, which is a space he's increasingly chosen to occupy in recent cases. To me, this is perhaps the most significant change in the court's dynamic in the wake of the 2016 election, when Judges Keel and Walker joined the court.

While on capital cases, Judge Yeary has tended to be more defense-oriented, in more workaday cases he has proven himself a tuff-on-crime outlier, even compared to the Government-Always-Wins (GAW) faction, led by Judge Keller. Indeed, Yeary's pro-prosecutor stances are sometimes so extreme that even the traditional GAW faction members (Keller, Hervey, and Keasler) cannot abide them. That's what happened in Pue, where the state sought to uphold a 30-year sentence which, in light of the facts, clearly was improper.

The case involved an illegal sentence for evading arrest with a vehicle, which in Texas is a third degree felony punishable by 2-10 years. Two California cases were used as an enhancement under Texas law to increase the penalty to thirty years under the habitual-offender statute. But the California convictions were not "final," as required by Texas law, and the defendant's lawyer failed to appeal the issue. (Mr. Pue separately has also alleged an ineffective assistance claim.) The CCA majority said the sentence was illegal, and even the GAW faction agreed.

Judge Yeary would let the sentence stand, insisting the claim should have been raised on direct appeal and should not be alleged for the first time in a habeas writ.  Moreover, he made a distinction (which Judge Keel rightly considered spurious) between a sentence outside the prescribed range (for example, a life sentence for a third degree felony where the max should be ten years), and illegally using a prior conviction to increase the penalty outside the prescribed range. Keel called out Yeary for "inconsistent" reasoning, and he tried to respond in a footnote. But when you read them both, it's pretty clear she's right and he's confused. Even Judges Keller and Keasler thought so.

Further, Judge Keller believed Pue's lawyer performed ineffectively:
Because the conviction was not final regardless of what law applies, and because Applicant has no other prior convictions (aside from the two in California), I would hold that counsel was deficient for failing to challenge the use of this conviction for enhancement purposes, and Applicant was prejudiced because his thirty-year sentence exceeds the maximum punishment allowed for his offense.
Keller believed Pue's lawyer's performance was deficient on its face ("Given the circumstances, I would hold that there is no conceivable strategy for failing to challenge the prior conviction, and so, there is no need to remand for factual development.") Judge Richardson and the majority, however, noted that the issue was raised at trial and he was reluctant to allege ineffective assistance for not doing so on appeal because "there were existing intermediate Texas appellate court decisions to the contrary" about whether California or Texas law controlled which offenses could be used for enhancements. (Going forward, the answer is "Texas'.")

As case law, Pue does little more than confirm common perceptions about which cases qualify for an habitual-offender enhancement. But it certainly reveals telling dynamics on a court suffering from strained personal relations and often-bitter legal disagreements. We're beginning to see previously unplumbed limits regarding how far certain members of the court are willing to go just because a prosecutor asked them for something.

Will Judge Yeary's extremist views solidify control of the court among moderates like Richardson, staking out positions so harsh and unyielding that they drive even the GAW faction toward more centrist stances? Time will tell but, to this observer, that looms as an increasingly likely (and admittedly unexpected) possibility.

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?