Stop the Train! An Epic Indigent Defense Fail in Travis County, execution scheduled without hearing on snitch recantation, new music from Just Liberty's decarceration campaign, and other stories

Here's the latest episode of the Reasonably Suspicious podcast for April 2018. You can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:


In this episode, we discussed:

Top Stories

• Travis County indigent defense system producing terrible outcomes. 
• Texas Supreme Court to consider whether prosecutors can be fired for refusing to break the law. 
• Listen to Just Liberty's new anti-incarceration/prison-closure jingle!  (~9:00 mark.)

Death and Texas

• Juan Castillo may be executed next month but courts haven't considered informant recantation. 

Fill in the Blank

• Litigation in Galveston County made national press after a judge refused to pay for defense-attorney investigation in misdemeanor case. 
• Two Tarrant County cases show how politicized elections-based criminal prosecutions can be. 
• Former Congressman Sylvestre Reyes authored a clueless column on Texas and the opiod crisis.

The Last Hurrah

• Houston limits zoning for offender services. 
• The Tyler Court of Appeals declared Texas' "revenge porn" statute unconstitutional. 
• The Harris County Sheriff fired the deputy who shot Danny Ray Thomas, an unarmed black killed man amidst a psychotic episode while his pants around his ankles when he was killed. 

Find a transcript of this episode below the jump.

Eleven years later, San Antonio finally gets its needle-exchange pilot

Long-time readers and drug-reform afficianodos will recall that, in 2007, the Texas Legislature approved a pilot needle exchange program in San Antonio. But then-District Attorney Susan Reed vowed to prosecute government employees (or anyone else) associated with the program, then-Attorney General Greg Abbott agreed she could do so, even though the Legislature had authorized it, and so the program never got off the ground.

However, in the wake of losing his primary election, Bexar County DA Nico Lahood is reversing his predecessor's position and giving the go-ahead to a needle-exchange pilot in River City, the SA Express-News reported.

This is excellent news!

In 2015, the Texas House passed a bipartisan bill that would have allowed private charities to legally operate needle exchange programs without being prosecuted, but the Senate never considered the legislation. Now, the long-ago pilot championed in 2007 by the late Ruth McLendon-Jones and Dr./Sen. Bob Deuell can demonstrate the practice for the rest of the state.

Being Texas, of course, the fact that needle exchanges have proven effective all over the nation and globe won't convince our pols to do it, but a demonstration project in San Antonio might.

Travis managed-assigned-counsel program an unmitigated catastrophe

The Texas Tribune's Neena Satija authored an excellent story about the Travis County managed-assigned-counsel system, but IMO she cut them too much slack for truly crappy outcomes.

The new system was created due to "widespread allegations of favoritism and concerns that overloaded attorneys were providing poor representation." 

Judge Mike Lynch told her he "is confident that the new system in Travis County is far better than the old one."

However, the concentration of indigent defense cases among a handful of lawyers WORSENED after the move to a managed-assigned-counsel system, Satija reported. "According to data from the Texas Indigent Defense Commission, the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017 — compared to an average of 428 in 2014, the year before the new system began."

We also know that those clients are getting worse outcomes as a result. A new analysis from the Council for State Governments Justice Center found that 80 percent of state-jail-felony drug defendants are convicted when represented by appointed counsel, compared to 48 percent of those who hired attorneys.

Further, Satija reported that defendants under the new system, "also spent an average of nine days in jail last year, up slightly from eight days in 2014. That’s still much longer than similar defendants who could afford their own lawyer: They spent an average of just one day in jail last year."

So lawyer caseloads are higher, not lower. Indigent defendants are sitting in jail longer. And people represented by appointed counsel in drug cases are a whopping 67% more likely to be convicted than people with retained counsel.

That's an unmitigated catastrophe! A failure on every level.

Former Texas Indigent Defense Commission chief Jim Bethke championed the new system when it was created but has no explanation for its persistent and obvious failures: “I wish I had a good explanation for that, but I don’t,” Bethke told the Tribune. "I believe in what that program's doing. Do I think it can be done better? Absolutely." 

For my part, I do not think it can be done better under a managed-assigned-counsel regime. Local lawyers wanted to control the process and, when control was given to them, they adjusted the system for their own benefit, not in the public interest.

Bottom line, when this shop was created Grits opined that Travis County should have created a public-defender office instead, and this news confirms that premonition. Yes, it would cost more, but Travis County will also  have to pay more to improve the system under a managed-assigned-counsel program. And we can already see that doubling down on this failed program would amount to throwing good money after bad.

Scam soliciting money for fallen officers in wake of Dallas shootings

Grits just got a scam robocall from something called the National Police and Troopers Association, which apparently has an affiliation with the national AFL-CIO' International Union of Police Officers, trying to collect donations in the wake of the shootings of two Dallas police officers, one of whom has now died. But there's almost no way any of that money would never end up in the hands of dead officers' families. A blogger who checked the group out a few years back found that:

for the year ending March 31, 2012, the union and its outside fundraisers collected $8.2 million and kept $7.7 million for fundraising fees and expenses, leaving about $500,000 for other purposes. That’s a fundraising efficiency of 6%–less than one-tenth the 65% threshold that charity watchdogs consider the bare minimum for a legitimate operation. 

But it’s really stinks even more. According to the tax return, out of that last $500,000, the union handed out charitable grants–scholarships, and a death benefit for one officer in Indiana–totaling just $35,000. That rounds to just 1/2 of 1% of the money raised.

Perhaps I'm missing something, but I don't see the group on the the Texas Attorney General's list of registered organizations licensed to do this sort of law-enforcement themed fundraising. Correction: They're listed as an AFL-CIO affiliate, and spend 77% of their earnings on fundraising, according to the AG.

Grits has railed against these law enforcement themed charity scams for years, but this is a new low. Sleazebags.

For the record, if you want to give a donation which will actually go to the Dallas officers' families instead of a bunch of scam artists, this is the link to use, via the Dallas Morning News.

TXDoT waived $1.3 billion in defaulted toll late fees; shouldn't old DRP surcharges also be waived?

The Texas Department of Transportation has announced it will waive $1.3 billion dollars in late fees on toll fines,  The agency had sent 2.2 million accounts to collections agencies last year, alone, reported KXAN.

The change comes after the Legislature capped late fees at $48 per year, so the agency waived old ones going back to 2007.

Grits' first thought: The anti-toll people got a bigger win last session than I knew!

My second: That's in the ballpark of the size of the unpaid surcharges in the Driver Responsibility program. If the Lege can suck up and eliminate that much bad debt on the toll side, they should be able to do the same thing for the surcharge program, which deals out a comparable amount of economic misery, plus the added legal problems arising from a revoked driver's license.

A lot of legislators are now aware of problems with the surcharge program, so Grits still harbors hopes that all Texas needs to get rid of it is a session with a little black ink in the budget to cover the on-paper losses. Unfortunately, that won't be the 86th session in 2019.

But news that the Lege eliminated this old debt last year in another red-ink budget makes me a tad more sanguine. It shows they can do it when they want to.

Judges explain need for bail reform; Exonerated, Exonerating; and other stories

Here are a few odds and ends which merit readers attention:

Judges explain need for bail reform
See Harris County District Judges Mike Fields and Darrell Jordan, a Republican and a Democrat, respectively, discussing the need for bipartisan bail reform on Reasonable Doubt, a cable-access program from the Harris County Criminal Lawyers Association.

Exonerated, Exonerating
Congrats to Chistopher Scott, Steven Phillips, and the late Johnnie Lindsey for being featured on a PBS Independent Lens production. These Texas DNA exonerees are themselves investigating other potential wrongful convictions; those efforts are the subject of the film.

Equal Justice, or Justice Politicized?
So, a black, formerly incarcerated woman in Tarrant county got a five-year prison sentence for voting illegally, and a sitting jurist gets probation for engaging in fraud to get on the ballot! (See here and here.) Yes, the judge pleaded guilty. OTOH, he actually committed an offense with mens rea, as well as violated the public trust. So there's that.

Meaty sentence in South Texas corruption case
A juvenile detention officer in South Texas who was convicted of stealing $1.2 million worth of fajita meat over nine years was sentenced to a 50 year term. That's way too high given the nature of the crime; there's no real public safety justification for it.

Who are homeless?
Most homeless youth in Dallas County are girls, and nearly 60% are black, a study found. See KERA's report.

Incarcerated women
The Texas Criminal Justice Coalition issued a report based on a survey of incarcerated women in Texas. See a summary of their work from The Crime Report.

Do hospitals do deescalation better than cops?
The New York Times published a feature on what law enforcement could learn from hospital training on deescalating potentially violent encounters.

From the Shooting-Yourself-in-the-Foot Department
Eliminating food stamps eligibility for certain drug offenders resulted in increased recidivism, an academic analysis found.

Missouri modeling collections reforms, practices
After the Ferguson report from USDOJ criticizing the use of fine and fee revenue to bolster municipal revenue, the state passed reform measures and collections plummeted around the state of Missouri, spurring one local municipality to merge with another because the majority of its revenue evaporated. Among the new measures, "municipalities are now banned from piling on charges when a defendant does not pay a fine or show up in court. Some municipalities ... now treat unpaid tickets as any other unpaid bill and close the case after sending the ticket to collection."

On prosecutor associations and legislative power
Josie Duffy Rice at In Justice Today had a must-read piece on the legislative power of prosecutor associations and Radley Balko in the Washington Post followed up.

Levin: Rural counties need to get on justice-reform train

The Texas Public Policy Foundation's newsletter arrived in my Inbox this morning and their top story related to over-incarceration in rural counties, focusing on pretrial detention:

What to Know: Criminal justice reforms are decreasing jail populations and recidivism rates. 

“The American criminal justice system’s gradual realization that too many people are in jail needlessly just got a large, visible boost from the city of Philadelphia,” the Washington Post reports. “The city announced last week that it would close its notorious 91-year-old House of Correction jail because reforms begun two years ago have dropped the city’s jail population by 33 percent, without causing any increase in crime or chaos. 

Defense attorneys are working harder to get defendants released quickly with no bail or low bail, prosecutors typically don’t oppose that, and the city’s judges are releasing them. Philadelphia police are taking more defendants to treatment rather than jail. More petitions for early parole from longer sentences are being granted. More space is now available in the city’s six jails for rehabilitation programs, and less overtime pay is needed for jail guards.” 

The TPPF Take: Such reforms are making a real difference in many urban areas like Philadelphia, but some rural areas are lagging behind. 

“Rural jail populations are continuing to explode even while the last five years have seen sharp declines in urban areas and modest drops in suburban areas,” says TPPF’s Marc Levin, who heads the Right on Crime project. “The largest contributor to these jail populations are defendants awaiting trial. Fortunately, there is light at the end of the tunnel. As we highlight in a report to be released at the end of the month, many jurisdictions are stepping up to stem the tide of pretrial incarceration in rural areas.”

They then linked to a recent column in The Hill by TPPF's Marc Levin arguing that rural over-incarceration risks those areas being "left behind as the criminal justice reform train leaves the station."

Wrote Levin, "rural jail populations are continuing to explode even while the last five years have seen sharp declines in urban areas and modest drops in suburban areas. The largest contributor to these jail populations are defendants awaiting trial."

He could (and perhaps should) have also added, as the New York Times reported last fall, that rural counties are sending people for incarceration in state prisons at vastly greater rates than their urban counterparts. And of course, since people who can't make bail are sentenced to incarceration more often than those who are released pretrial, there's a strong correlation between excessive pretrial detention and over-incarceration at TDCJ.

These are choices being made by local officials in rural counties - it's not just them being left behind by the criminal-justice-reform train because they don't have the internet, or a ticket, or whatever. Not in 2018. 

The fact that the the tuff-on-crime ideology of rural over-incarcerators remains intractable has political consequences, explaining a great deal of the opposition to criminal-justice reform at the Texas Legislature.

The Texas Sheriff's Association, for example, is politically dominated by rural Sheriffs because they far outnumber their urban counterparts with the result that they're among the most regressive anti-reform advocates at the capitol. Same goes for the Texas District and County Attorneys Association. The big city DAs get more press, but as far as the Association's internal politics goes, they're outnumbered by their rural counterparts. That's why the group retains an essentially regressive agenda, even though the big-city DA offices who pay most of their bills are moving in a more moderate direction. (Related: From In Justice Today on state prosecutor associations: "Prosecutors aren't just enforcing the law, they're making it.")

Grits is glad to see TPPF focusing on rural over-incarceration; there's no other organization in Texas taking up the banner, and the conservative think tank is well-positioned to address the topic. 

At some point, reformers must also address rural law enforcement's regressive impact on both the state-prison population and its political culture. But journeys of a thousand miles begin with first steps.

Lessons for Texas legislators from an unconstitutional revenge-porn statute

As soon as it passed, Houston criminal defense attorney Mark Bennett opined that Texas' "revenge porn" law passed in 2015 was an unconstitutional restriction on free speech. Now, he's backed it up and the 12th Court of Appeals out of Tyler agreed. See coverage from:

• Techdirt
• Texas Tribune
• Austin Statesman
• Houston Chronicle

Here's the opinion. I am not a lawyer but, given its basis, Grits will go on the record right now to declare there's zero chance the Texas Court of Criminal Appeals as currently constituted will fail to back Bennett and uphold the 12th Court's ruling - even if the case is not decided until after Michelle Slaughter replaces Elsa Alcala.

These are issues the CCA has visited repeatedly, usually unanimously, as Texas prosecutors foisted a series of unconstitutional statutes on the state related to regulating online speech. Whether it's "revenge porn" or "improper photography" or "online solicitation of a minor," Texas legislators and their tuff-on-crime abettors keep tripping over the same thinking errors regarding the state's power to regulate online speech. (See oral arguments in one of Bennett's cases involving the same constitutionality issues before the First Court of Appeals earlier this year.)

Bennett told legislators in 2015 the bill was unconstitutional before it passed, and Grits warned legislators at the time:

Mark's the attorney who successfully convinced the Texas Court of Criminal Appeals - hardly a bunch of libertines - to vote 9-0 to invalidate Texas' online solicitation of a minor statute. So it'd be wise for legislators to consider Bennett's counsel. If they don't, he may well be the guy knocking the law down on the back end.

Now, here we are three years later and that's exactly what happened.

Bennett has tapped into a vein of First Amendment law which will remain an obstacle to expanding government power to criminalize online speech in the ways legislators and our prosecutor friends might like. The things they can criminalize are already criminalized, and the fact of a new medium doesn't change the same First Amendment rights that let Larry Flynt publish Hustler. They don't get to make up new rules and these statutes all ignore the old ones. The next time Bennett tells legislators one of their bills is unconstitutional, regardless of what the DA's association tells them, maybe they ought to listen.

'Firepower to the People!,' and More: Justice Issues Reading List

Using this post to record links to several notable academic papers I've seen recently, saving them for perusal later. Perhaps some of them will also interest Grits readers:

• Firepower to the People! Gun Rights and the Law of Self-Defense to Curb Police Misconduct
• The Scale of Misdemeanor Justice
• Police Disciplinary Appeals
• The Myth of a Reliability Test
• The Anti-Blackstonians
• The Exclusionary Rule in the Age of Big Data
• Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data
• Evidence Without Rules
• Strange Bedfellows: Can Insurers Play a Role in Advancing Gideon's Promise?
• The Excessive Fines Clause: Challenging the Modern Debtors' Prison
• Predictive Policing and Reasonable Suspicion
• Risk, Race, & Recidivism: Predictive Bias and Disparate Impact
• The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness
• Racial Critiques of Mass Incarceration: Beyond the New Jim Crow
• Why Prison? An Economic Critique

Newsflash: "Touch DNA" doesn't necessarily require touching

Grits has discussed problems with DNA mixture evidence - particularly regarding so-called "touch DNA" - at some length. But conversations in Texas about the math have ignored an even bigger problem raised in this Wired magazine article: Touch DNA from an individual can be transferred to places to which the suspect has never been. 

The featured case involved an innocent man whose DNA wound up under the fingernails of a murder victim. But the crime was committed while he was hospitalized and could not have committed the offense. It turned out, the same paramedics treated the suspect and responded to the murder scene, somehow transferring his DNA in the process.

This may be more common than anyone - even innocence advocates - have understood. It turns out, for example, about one in five people "walk around with traces of other people's DNA on our fingernails," a study found. 

Or consider: Scientists have determined that a man who shakes hands with another person then goes to the restroom may end up with their DNA on his penis. Or, according to this Canadian study, a father's DNA may frequently wind up on his daughter's underwear because it "migrates there in the wash." (One wonders how often that latter circumstance may have contributed to false convictions in child molestation cases?)

The emerging questions around touch DNA - both the math surrounding the analysis and the assumptions surrounding what the results mean - are a lot more complex than anyone could have imagined five or ten years ago. Unfortunately, the criminal-court judges charged with sorting out the mess are ill-equipped and unprepared to do so.

Indeed, if these questions are resolved a decade from now, Grits will be pleasantly but seriously surprised. The Trump Administration shut down forensic reform efforts soon after Jeff Sessions became Attorney General, and it's doubtful state-level activities like the review at the Texas Forensic Science Commission can forge national or (really) international standards, which is what's ultimately needed.

On increasing prosecutor caseloads in an era of crime decline

On Twitter, TDCAA complained about Grits' observation in this post that, as the number of crimes with victims declined over recent years, police and prosecutors have shifted their focus to areas where they may maintain or even increase caseloads despite more than two decades of dropping crime.

The association is right that caseloads have increased. Grits has discussed before how the number of criminal convictions statewide continued to rise long after crime and arrests began to drop. In his book, Locked In, John Pfaff demonstrated the same trend occurred nationwide from the mid-90s to the late aughts, with the number of felony-charges-per-arrest over that period rising from one-in-three to two-in-three. So, even as crime and arrests declined, the number of convictions continued to rise.

On the ground, Grits sees this trend playing out as law enforcement shifting resources to activities that aren't particularly public-safety oriented and which certainly aren't responding to people's victimization.

For example, the Ector County Attorney authored a blog post in February detailing his 2017 caseload. (County Attorneys in Texas prosecute all misdemeanor cases.) The top two offenses prosecuted by his office were marijuana possession (19% of cases) and Driving With Invalid License (17%). At 16% of the caseload, DWI enforcement came in third.

I don't want to pick on Mr. Gallivan because his numbers are pretty typical - he just happened to have put his caseload data out there. But 36 percent of his office's caseload is either prosecuting people for paperwork violations (DWLI is about license status, not safety), or churning through low-level arrests for a nonviolent activity (user-level pot possession) which would be legal in nine states and the nation's capitol. (In related news: A Quinnipac poll out this week found that nearly 2/3 of Texas voters support legalizing recreational pot possession.)

These are the big growth areas in prosecutor caseloads. Similarly in the Travis County data that originally inspired the prosecutors' complaint, possession-level drug arrests accounted for nearly all of the increase in caseload; otherwise, jail bookings had gone down.

So when crimes with victims diminish, these sorts of evergreen offenses are where the system shifts its focus.

None of this is raised to blame prosecutors - the Legislature creates and defines crimes, not them, and often they are reacting to whom police choose to arrest. Rather, my point is to raise the question: Is that what we want the justice system to be doing? When crime goes down, is it a good use of resources to criminalize paperwork violations or prosecute pot smokers to justify high staffing levels? Would taxpayers be better off if Mr. Gallivan prosecuted all those DWLI and pot cases, or if he eliminated 36 percent of his staff and provided voters with tax relief (with additional relief coming from lower jail and court costs, etc.)?

These seldom-discussed questions are worth asking, even if the prosecutors' association takes offense. They're not the only ones to blame for a distorted and dysfunctional system, but right-sizing it will require significant changes to how they perceive and perform their duties.

Appointed counsel in Austin radically increases chance of conviction on drug charges; police pursuing victimless drug cases as crime declines

Defendants in Travis County were far more likely to be convicted of state-jail felony drug charges if they were indigent with an appointed attorney compared to those who hired their own lawyers, according to a KXAN-TV report based on a new Council of State Governments analysis. And police are making more arrests for low-level drug possession, even as jail bookings for all other offenses have declined. (Your correspondent was briefly quoted in the KXAN story.)

Perhaps the most disturbing finding was the effect an appointed lawyer had on case outcomes: The report found that, "80 percent of people in the past five years were found guilty on drug charges if they used a court-appointed attorney. If they paid for their own attorney, only 48 percent were found guilty on drug charges."

These are similarly situated defendants demonstrating radically different outcomes based on how (and how much) their lawyers are paid. Certainly, it's a bad look for the "managed assigned counsel" program in Travis County. Grits believes we'd see much better outcomes from a full-time public defender office. In Harris County, for example, the public defender office "achieved a greater proportion of dismissals, deferred sentences, and acquittals, and a smaller proportion of 'guilty' outcomes, than assigned counsel. HCPD secured acquittals on all charges at three times the rate of appointed and retained counsel."

The Travis County data demonstrate how failure to invest in one part of the system can create even greater costs for taxpayers down the line. By underpaying attorneys who then do not adequately vet cases, more people (2/3 more) are convicted, which then leads to extra costs for incarceration in state jail or supervision on probation. For that matter, some percentage of those sentenced to probation will also be revoked and eventually incarcerated, too.

The upshot: if indigent drug defendants in Austin received a comparable quality of defense as people who hire private lawyers, it would reduce incarceration costs significantly down the line.

In addition, the report cast light on the disturbing trend of law enforcement focusing on victimless drug-possession cases as crime overall declines. From the CSG report:

Bookings in Travis County for arrestees with SJF increased while overall bookings declined

• Overall jail bookings in Travis County decreased by 14% between 2013 and 2017, but bookings of arrestees with SJF increased by 9%

• SFJ-DP [drug possession] bookings increased by 34%

Why would drug arrests increase during a period when crime and jail bookings overall declined?

My theory: Crime may have declined but the number of police officers and prosecutors stayed the same or increased over the same period, and those people need something to do with their days. At the same time, there are FAR more people using drugs than are routinely arrested, so there is a deep pool of petty, low-risk offenders into which law enforcement may cast its nets. And even if they're only catching "little fish" - state jail felony drug cases involve less than a gram of a controlled substance - at least they're going through the motions of making arrests and enforcing the law. Essentially, this is rent seeking behavior on the part of law enforcement.

Together, this rent seeking activity, combined with institutionalized incentives for poor-quality lawyering among appointed counsel in Travis County, prioritize the interests of players in the system over both defendants' constitutional rights and systemic equity. Thus it's understandable why things would be this bad, just not acceptable.

An undocumented necropolis at the (former) Central Unit, TX Supreme Court Chief Justice inspired by the Ferguson report, and other stories

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

Galveston sued over bail schedule
ACLU has sued Galveston County over its bail schedule, adding that county to Harris and Dallas as bail litigation sites. If your county still operates under a bail schedule, they'll soon have to change. Better to do it now before you're successfully sued. Ask the judges in Harris County.

Central Unit property an undocumented necropolis
Here's a postscript to the closure of TDCJ's Central Unit in Sugar Land, which long-time readers will recall was the first prison unit closed in the Lone Star State since the founding of the (Texan) Republic. When Fort Bend ISD began preparing a portion of the sight for a construction project, they began unearthing bodies. Lots of them - 22 as of when this Houston Chronicle story was written. These were inmates from the convict leasing era and later who worked for the Imperial Sugar Company as de facto slave labor through the early part of the 20th century. A cemetery on the prison site included only white inmates' remains, which led activist Reginald Moore to believe that black prisoners were buried in unmarked sites elsewhere on the grounds. Turns out, he was right. See related, earlier coverage from Texas Monthly and commentary from Grits. MORE: The number of unmarked graves discovered is now 79!

TX courts limit pretext stop searches
Following a reversal by the Texas Court of Criminal Appeals, the First Court of Appeals issued a ruling limiting the scope of searches incident to arrest. The First Court ruling limits law enforcement's authority to arrest drivers for Class C misdemeanors as a pretext for searching their car.  The case involved a driver arrested for failure to signal a lane change. Police found drugs in his car trunk, but the courts have now ruled they had no reason to search there: "What police officers may not do, even when they conduct a search incident to a lawful custodial arrest of a recent occupant of a vehicle, is to search the vehicle when the arrestee is secured and not within reaching distance of the passenger compartment," according to the new opinion. See coverage from TheNewspaper.com and all the relevant court documents.

Looks like pot to me!
A Harris County crime lab employee was fired for drylabbing marijuana samples.

Is fast track a death-trap for innocents?
Check out an innocence-based argument against Texas' petition to fast-track death-penalty appeals. Anthony Graves has rightly pointed out that he would have been executed before he ever could have been exonerated under the new rules.

Ferguson report inspired TX debtors-prison push
Marc Levin of the Texas Public Policy Foundation interviewed Texas Supreme Court Justice Nathan Hecht about his decision to champion debtors-prison and bail reform issues. See also a related blog post. Hecht was introduced to the debtors prison issue thanks to the USDOJ's report on overreliance on fine revenue out of Ferguson, Missouri, he told Levin.

Murder-insurance program notches LWOP verdict
The Regional Capital Public Defenders Office, which provides representation in capital cases for counties that participate in its so-called "murder insurance" program, won a life-without-parole verdict recently in a case involving the murder of a San Antonio Police officer - the first such trial verdict in their ten-year history.

SAPD to county: We hate your new jail intake facility
Grits doesn't know enough yet to tell who is right about the dispute between San Antonio PD and the Bexar County commissioners court over whether SAPD should use the new intake center built at the jail. But my gut leans toward the county: the redundancy makes little sense for taxpayers, and Chief McManus sounds like he's more worried about the officers' convenience than enacting best practices at the jail.

Ombudsman report tallies inmate complaints
Check out the TDCJ Ombudsman report for 2017. Visitation remains the perennial main source of complaints (6,389), with another 1,424 prisoners complaining they weren't being housed in accordance with medical restrictions (48 were reassigned). But 955 offenders complained of threats or intimidation by other inmates (offenders were reassigned in 140 cases), while inmates complained 720 times of physical abuse or threats by staff (26 of those cases were referred to the Office of Inspector General). In related non-news, we're still waiting for the TDCJ Annual Statistical Report for FY 2017, which ended in August of last year.

New Houston rules aim to limit offender services
Charles Blain from Empower Texans has an item up on new Houston zoning rules aimed at excluding facilities for ex-offenders. Wrote Blain:

Houston Mayor Sylvester Turner and City Council passed an ordinance that bans alternative housing and correctional facilities, including reentry homes, from opening within 1,000 feet of schools, parks, or other facilities. The new ordinance also requires reentry facilities, approved by the Texas Department of Criminal Justice, to apply for a city permit. The permit will identify the type of facility so local officials can “monitor” the locations of ex-offenders living in private reentry homes across the city, allegedly in the name of public safety. 

Houston’s 99 currently operating facilities will be grandfathered in under the new provision. But once the owner sells the facility or passes away and wills it to an heir, the facility must come into compliance with all of the new regulations, including the distance requirement. So, as facilities inevitably change hands over time, many will be forced to close or open elsewhere. 

Supporters claim that the regulation will improve “public safety,” but like in many other zoning disputes, it evolved from small contingents of people who felt uncomfortable with the homes in their neighborhoods. 

Comments made during the public hearing for this regulation centered largely on a fear of ex-offenders, rather than statistical public safety data.

Tuff-on-crime cluelessness
Former Texas Democratic Congressman Sylvestre Reyes has a column in the Austin Statesman decrying "How fentanyl got its grip on Texas." This commentary ignores the best research out there which says Texas has mostly avoided the fentanyl-driven opiod death spike because the cartels that sell in Texas' market distribute "black tar heroin," which is less pure and not easily combined with fentanyl. See related Grits commentary on the same hearing Reyes is discussing.

Suicides among cops continue to outpace line-of-duty deaths
A recent spate of reporting reiterated that suicides among police far outpace line-of-duty deaths in shootouts with bad guys. This has been true for a long time, and is exacerbated by a lack of suicide-related treatment services for police.

Assessing Harris County bail litigation as it nears denouement

In last month's Reasonably Suspicious podcast, I interviewed Susanne Pringle, executive director of the Texas Fair Defense Project, about the denouement of the Harris County bail litigation, in which her organization was one of the plaintiffs. Since we spoke, Galveston County was sued by the ACLU over essentially similar grounds, and Dallas County already faced litigation over its bail system, so the Harris County domino falling may soon take down quite a few other county's pretrial detention regimens.

When Judge Lee Rosenthal issues her revised injunction in light of the 5th Circuit's ruling, in many ways it will be like firing off a starting gun. That document will set the parameters for bail systems throughout Texas, establishing a minimum floor for constitutionality. Any county continuing with a bail schedule or violating other shall-not portions of the injunction will find itself low-hanging fruit for a similar suit. So expect a lot of local-level activity on this front over the coming year, and probably a legislative reaction in 2019.

Here's the excerpt including the interview with Pringle:


Find a transcript below the jump.

Populist backlash snuffs Pflugerville Tuff-on-Crime resolution

A majority of the Pflugerville City Council were listed as co-sponsors of a resolution this week declaring that violent crime was on the rise and calling for prosecutors and the courts to seek maximum penalties in all cases for both violent offenders and drug possession. In the 1990s, one saw these regularly from all levels of government, with officials who had no formal role in the justice system trying to jump on the Tuff-on-Crime bandwagon.

This time, though, the grandstanding maneuver back-fired.

Measure-Austin, a local police accountability group, put out the word among Pflugerville residents that their city council was about to do something regressive and foolish. And Just Liberty created a local email action alert that generated 74 constituent letters to the mayor. Community members showed up to oppose it and won a 5-0 vote against the resolution, which started with 3 of 5 council members as sponsors!

According to video posted on Twitter, one of the sponsoring council members moved to postpone the item indefinitely, to which the Mayor replied that he'd feel more comfortable if they postponed the item "eternal." The motion author accepted the amendment, and that's the motion that passed.

Grits finds this episode particularly notable and encouraging. As mentioned, not so long ago, these sort of grandstanding Tuff-on-Crime resolutions were as common as stink on a pig and played quite well with their intended audience, very much across party lines. These days, public support for such regressive stances has dissipated and a more motivated, militant, and bipartisan opposition to mass incarceration appears to be emerging.

Indeed, it's hard to describe for anyone younger than about 35 how radically different this episode was than the situation that faced us when your correspondent entered this work in the mid-'90s. Like night and day.

Myths and dilemmas surrounding DNA testing backlogs

The Fair Punishment Project has a good roundup in its In Justice Today Texas newsletter of stories on Texas' efforts to reduce the so-called "rape kit backlog," and I was pleased to see among them this item identifying "5 myths" surrounding the controversy over un-tested rape kits from the co-founders of People for Enforcement of Rape Laws.

I agree with most of that commentary, but there's one other "myth" they didn't cover: That every un-tested rape kit has the potential to identify a criminal. Many times, the reason rape kits go un-tested is that the identity of the alleged assailant isn't the issue. Rather, the issue is whether a sexual act was consensual, and the existence of DNA doesn't prove culpability.

For more context, check out the lab director from the Los Angeles Sheriff's Office discussing the cost-benefit issues surrounding testing of rape-kit backlogs at a National Institute of Justice event in 2010. They spent $1.7 million to analyze their rape-kit backlog to find just two viable suspects.

In Houston, by contrast, they found many more un-solved cases when old rape kits were tested. IMO that's because HPD was doing a much poorer job of investigating sexual assaults than the Los Angeles Sheriff. This speaks to one of the main critiques of the authors of the "5 myths" article:

The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases. 

Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed.

That's a fair analysis, but it doesn't apply to every agency. The examples of HPD and the LA County Sheriff illuminate how widely that can vary from department to department. Not every agency suffers from a culture of neglected rape complaints, but when it happens, it compounds tragedy in bunches.

At one point, the National Institute of Justice had issued a grant to Houston PD (also Detroit) to develop protocols regarding when it was and wasn't appropriate to perform DNA testing on rape kits. There is a detailed website illuminating all sorts of interesting aspects about this project, but Grits has still never seen any final recommendation regarding exactly under what circumstances law enforcement should choose not to have a rape kit processed at the crime lab. (If I've just missed them, please, somebody point them out; once my job ended as the Innocence Project of Texas policy director, I stopped tracking these topics closely.)

Grits mentions this not to discourage testing of rape kits, nor to make excuses for those in the past who allowed rape cases to languish un-investigated. But because there are, in fact, viable circumstances under which the expense of rape-kit testing isn't justified - particularly in cases where the principle issue is consent, not identity - until such protocols are promulgated, law enforcement will continue to make decisions about whether to test rape kits on a case by case basis.

Better to just create a set of reasonable best practices then pressure everyone to follow them, than to insist that every rape kit be tested and backlogs always = zero. Then, police will know what's expected of them and the public will better understand why an un-tested rape kit isn't per se evidence of police negligence or incompetence.

Another question raised by such test-or-no-test protocols: Might there be rape victims who are unnecessarily subjected to invasive evidence-gathering procedures who needn't be? It's not fun to go through that (I'm told), and in cases where it's clear from the get-go it's not necessary, maybe a lot of these women needn't go through the experience in the first place. Stranger rape is pretty rare, after all. If police were trained up front when rape-kit evidence might be pertinent to an investigation and when it's unnecessary, maybe you could chip away at the number of un-tested kits from that direction.

Finally, having mused over this recent spate of reporting on the topic, Grits should point out a related, recent article from the Washington Post that raises the fraught and difficult question looming over all these rape-kit backlog debates: What happens when the results come back? Nothing simple, is the short answer.  Houston's approach seems as reasonable as any:

Houston tried a different model. A hotline was set up and publicized, so that any victim who wanted information about their old kit could ask for it. Then, police and prosecutors combed through the CODIS hits and decided which cases actually had a chance of moving forward in the criminal justice system. Victims were notified only if their cases seemed “actionable.” “What’s at stake is the well-being and mental health of sexual assault victims,” says Noël Busch-Armendariz, a researcher who was involved in Houston’s process. “You never know where people are in their lives and what support systems they have or don’t have ready for them.”

Louisville, by contrast, notified every woman on the list her kit would be tested, even if there turned out to be no one else's DNA in the sample. "In Virginia," according to the Post, "this dilemma would ultimately pit police, prosecutors, advocates and lawmakers against one another, making the situation far more complicated than they ever intended. Everyone wanted to do the right thing for victims; there was just no way to know what that was."

Ironically, for a situation in which everyone wants to "do the right thing for victims," often victims opinions in the process are either unsolicited or roundly ignored.

These are incredibly difficult questions which won't be resolved anytime soon. The USDOJ under the Trump Administration has issued a recommendation that every rape kit associated with a criminal complaint be tested, reported the Post, but law enforcement agencies on tight budgets likely will balk at truly unnecessary testing, especially if it becomes required in volume.

Your correspondent doesn't have solutions to these issues, but there's a growing urgency to confront them.

Texas' juvie decarceration provides example for adult side

This graphic from a recent Dallas News story (4/6) says nearly all you need to know about juvenile corrections in Texas over the last four decades:

The main thing to add is that juvenile crime increased during most of the period the curve went up and was (and is) decreasing on the downward side of the slope. For the most part, high incarceration levels have demonstrated little correlation with crime, with juvenile crime reducing drastically during the period the state decarcerated its youth prisons.

Juvie decarceration in Texas is arguably the most important accomplishment of the "Right on Crime" era among Lone-Star Republicans, even if the job remains unfinished. Texas launched its juvenile decarceration scheme just four years after the GOP took over the Texas Legislature for the first time since Reconstruction, and has now been sustained through successive governors, with reductions now accelerating again under Gov. Abbott.

Texas has proven the concept on the juvie side. Now the task is to convince those same leaders to apply the same lessons to the adult system, where our prison population remains the highest in the nation and the prison system releases some 70,000 people per year. Many of those people would be less likely to recidivate if they'd never been sent to prison at all!

Some days, your correspondent despairs that Texas' behemoth of a prison system can ever be successfully dismantled. This example provides hope. If juvie prisons can reduce their populations by three quarters and the public barely noticed, maybe state leaders will see that there's little political risk and a lot to gain by reining in a sprawling and outdated adult system. Indeed, as on the juvie side, adult decarceration should seen as something for which politicians can take credit, with failure to embrace it garnering blame.

On indigent defense and 'unfunded mandates'

Grits is broadly sympathetic to the much-ballyhooed claim (championed most prominently by the Texas Association of Counties) that Texas state government unfairly cost shifts to county and municipal governments via "unfunded mandates." But critics of unfunded mandates are wrong to include indigent defense in the "unfunded mandate" critique and are only doing so by ignoring the real and much more costly "unfunded mandates" running in the other direction.

In the Waco Tribune Herald, McLennan County Precinct 4 Commissioner Ben Perry articulated the oft-heard complaint:

Indigent defenses expenses are a good example of an unfunded mandate forced on counties, Perry said. 

The state once covered the costs of providing legal representation for people accused of crimes who cannot afford adequate defense, as required by the U.S. Constitution. But the state has been reducing its contribution for years. 

The county has almost $4.7 million budgeted for indigent defense this year, up from $4.1 million in 2014. 

That includes $270,000 in state money this year, down from $532,000 in 2014. 

The Texas Fair Defense Act of 2001 does not include a way to pay for its requirements, shifting the expenses to county taxpayers, the county’s resolution states. Statewide spending on indigent defense in 2016 was more than 2.7 times as much as it was when the act passed, according to the Texas Association of Counties. 

The state spent $247.4 million in 2016, up from $91.4 million in 2001.

The second paragraph in that pull quote is just a lie. There has never been a time when the state paid for all indigent defense costs in Texas; it was entirely a county-level responsibility until after the new millenium. The article itself includes a graphic demonstrating that claim is false:

Notice the state contribution in 2001 was $0. The state began to put in MORE money after the Fair Defense Act, not less. Moreover, the majority of the increase at the county level may be accounted for by inflation and population growth. 

The big (unstated above) problem is that, before the Fair Defense Act, counties simply didn't comply with their obligations to appoint counsel, especially in misdemeanor cases. That was, indeed, cheaper. In many counties, when the Fair Defense Act passed, no misdemeanor defendants were appointed counsel - zero, zilch, nada. Now, appointment rates often approach 50 percent, not great but better. You can blame the state for making the locals comply with the constitution, if you prefer to deprive defendants of their 6th Amendment right to counsel to save a buck. But that doesn't make this an unfunded mandate, any more than it's an unfunded mandate to require counties to pay for local prosecutors.

The volume of indigent defense services required is largely a function of local decisions and priorities, so if the DA's office is still prosecuting lots of penny ante cases even after crime has declined for two decades, locals should foot the bill for those defense costs.

The flip side of this "unfunded mandate" argument are the un-discussed unfunded mandates to the state. McLennan County has a reputation for securing tougher-than-typical plea bargains, but state taxpayers must pick up the tab for high incarceration rates and longer sentences. And those costs are FAR greater than the costs for those prisoners' lawyers.

Grits has long believed the Lege should offer the Texas Association of Counties a deal on indigent defense: The state picks up the full indigent defense tab, and counties pay to incarcerate every defendant they send to TDCJ for the whole time they're inside. Then everything would be "fair."

Except that "fair," as I frequently tell my granddaughter, is a place where they judge pigs. It doesn't generally have much to do with the Texas justice system, and certainly not with how it's financed.

RELATED: If crime is down, asks legislator, why are indigent defense costs rising?

ALSO RELATED: 'Cap and Trade' proposal could end mass incarceration

Secret courts, Kafkaesque tales, and a prosecutor fired for fidelity to the law

Let's clear a few browser tabs with a quick roundup:

'Kafkaesque' tale began with Class C stop
Here's a story from In Justice Today - "Traffic stop begins man's Kafkaesque journey through a Texas county's bail system" - that ties together the issues of arrests for Class C misdemeanors in Harris County and their bail litigation, about which we updated with an interview from one of the plaintiff's attorneys in our latest Reasonably Suspicious podcast.

Harvey washed away Harris jail crowding gains
Speaking of the Harris County Jail, after making some progress in recent years, it's overcrowded again thanks to court backlogs from Hurricane Harvey. They may seek variances to use temporary beds at the next Jail Standards Commission meeting.

Secret courts in Dallas?
Bail hearings in Dallas are held in secret, reported the Texas Observer! That's nuts. Open courts doctrine, anyone? Anyone?

SCOT to decide if DA can fire prosecutors for refusing to violate Michael Morton Act
Private employers cannot fire an employee for refusing to violate the law, but former Nueces County DA Mark Skurka fired a prosecutor named Greg Hillman for refusing to withhold exculpatory evidence from the defense in violation of the Michael Morton Act. Now, the Texas Supreme Court will decide whether sovereign immunity protects the DA from accountability. Lisa Falkenberg at the Houston Chronicle authored a fine article on the subject.

Not faking
A Milam County Jail inmate - a probationer awaiting access to drug treatment services - has filed suit after receiving a beating from guards that left him paralyzed from the waste down. He alleges that staff ignored his injuries and a nurse accused him of "faking." See coverage from The Daily Beast and KWTX.com.

Police reform model passes in CA
California has passed major police accountability legislation. I will be curious to see what they did and compare it to the big Texas bill on the topic proposed by Rep. Senfronia Thompson last session.

'The Recidivism Trap'
Our old pal Vincent Schiraldi along with John Jay's Jeffrey Butts authored an important commentary for the Marshall Project titled, "The Recidivism Trap." They argue persuasively that, "Rather than asking 'what’s the recidivism rate?' we should ask an entirely different set of questions about justice interventions." Related: Grits has previously questioned whether low recidivism rates are always an appropriate goal (see here and here), since states like Texas and Oklahoma which over-incarcerate low-risk offenders are more likely to see low recidivism than states that limit 24/7/365 caging to more high-risk people.

Considering Texas DA primaries in light of new models out of Philly for prosecutors opposing mass incarceration

The March episode of the Reasonably Suspicious podcast we included an update on the March 6 primary elections involving Texas District Attorneys and the Court of Criminal Appeals.  Then we compared so-called "progressive" District Attorney candidates in Dallas to Philadelphia's new DA, Larry Krasner, discussing a new memo Krasner put out directing his prosecutors to use their discretion to reduce mass incarceration. By contrast, Texas' "progressive" DAs and DA candidates are all much more moderate. I've excerpted those two segments here:


See a transcript below the jump.

Texas overdose problem still more focused on meth than opiods

The Texas House Select Committee on Opiods and Substance Abuse posted handouts from their March 27 hearing, and Grits thought it worthwhile to point out a few highlights. See in particular handouts from:

• Texas Legislative Budget Board
• Texas Department of Criminal Justice
• Meadows Foundation

Let's do a quick overview of substance abuse resources in Texas, then try to answer a couple of questions raised by the Texas District and County Attorneys Association on their Twitter feed.

For starters, funding for substance abuse in Texas comes primarily from two sources: Medicaid and TDCJ. Between them, those two sources account for 97.4 percent of all government substance-abuse funding in the state, split roughly equally, reported LBB. Just more than $386 million are spent on SA treatment through Medicaid, while around $343 million is spent on treatment through TDCJ.

The difference, though, is where state money is spent. Overall, 58 percent of funds spent on substance abuse come from state general revenue coffers. But most of that is spent on treatment in corrections environments. Overall, state general revenue funds pay for only 24 percent of Medicaid expenditures on substance abuse, but more than 98 percent of treatment funds at TDCJ.

With a total incarcerated population of 145,399, TDCJ has 10,047 incarceration beds dedicated to substance abuse, and the parole system has 7,592 people on specialized substance abuse caseloads.

There are another 2,897 secure treatment beds used by the probation system, TDCJ reported.

Source: Meadows Foundation

The Meadows Foundation estimated that nearly eight (8) out of 100 Texans suffer from a substance abuse disorder. More than half of adult Texans drink alcohol, 10 percent use marijuana (!), and 2 percent use cocaine, the foundation reported.

Treatment admissions for alcohol, cocaine/crack, and opiods have declined in recent years, while admissions for heroin and meth have been rising. Overwhelmingly, the largest number of admissions were for alcohol.

Source: TX HHSC

TDCAA on its Twitter feed linked to a chart showing opiod deaths in Texas happen at a lower rate than nationally, and would like to credit law enforcement efforts. They tweeted: "Questions for #txlege to answer next session will include (a) why is TX faring better? and (b) how to we maintain/improve that performance?"

Certainly, people without access to healthcare have a tougher time getting addicted to prescription opiods, and Texas has among the highest uninsured rates in the country. Moreover, while not approaching spikes seen in some states, overdose deaths attributable to opiods and heroin have more than doubled since the turn of the century, according to the HHSC graphic cited.

But really, the comment mainly just ignores the fact that drug use differs regionally and Texas addicts still tend to favor meth over heroin. This fact has historical roots. When Texas clamped down regulating legal antihistamines used by addicts to cook meth, Mexican drug cartels took over the trade and began pumping truckloads of cheap speed into the state to fill the gap in the market. Meth prices plummeted while addiction and overdoses increased. So it's not so much that Texas is "faring better" as that the state's patterns of addiction aren't the same as in Ohio and Pennsylvania. According to the Addiction Research Institute at the UT-Austin School of Social Work, "There were 715 deaths due to methamphetamine in Texas in 2016, as compared with 539 due to heroin."

Tack on those deaths, and all of a sudden Texas isn't so much "faring better" than "faring differently."

Moreover, the Addiction Research Institute gave the best explanation for why Texas hasn't seen as many opiod deaths as in the Northeast, and it's not because of law enforcement efforts but because of differences in the market: " Texas has not yet suffered the epidemic of overdoses seen in the northeast because the heroin in Texas is Mexican Black Tar which cannot easily be mixed with fentanyl. The purity of Black Tar is 45%-50% as compared to 80%-85% purity for Mexican-South American heroin in the northeast."

So the answers to TDCAA's questions are, 1) "We aren't faring better, our problems are just different," and 2) "Market trends among cartels, not Texas policy, account for the different overdose patterns. Since neither Texas policy nor the 'performance' of law enforcement is responsible for the lower number of opiod deaths, there's no policy implied that would 'sustain or improve that performance.'" This is not a Texas-does-it-better issue, it's an all-problems-are-local issue.

Revenge porn from the DA? ... and other stories

Let's clear a few browser tabs with a quick roundup:

Just Liberty Platform Campaign Update
As results roll in from around the state, Just Liberty's platform project turned out to be even more successful than we thought. Resolutions to implement #cjreform were passed in 17 Republican senate districts and 16 Democratic ones. Most of the Democratic SDs approved all 16 Just Liberty resolutions. And on the Republican side, the Young Republican Federation of Texas endorsed our entire agenda and encouraged their members to champion #cjreform resolutions in their own local conventions. We even created a catchy little jingle to promote the campaign online. Now it's on to the state conventions, where the party platforms will be finally approved and hopefully include our proposals. The process of promoting the resolutions within these party processes has already helped identify new allies around the state, whom we hope in turn will add weight and credibility the legislative push on #cjreform issues in 2019.

Voting case against ex-felon a politicized disgrace
This Tarrant County case of a woman receiving a five year sentence for voting with a felony record is one of the most absurd and politicized abuses of justice I've seen in quite a while (perhaps going back to the roundup after the Twin Peaks Biker Massacre, if we're ranking episodes of prosecutorial overreach).

The DA, discovery, and 'revenge porn'
Speaking of the Twin Peaks Biker Massacre, DA Abel Reyna's office got dinged by a judge for releasing nude photos of a defendant's wife that he had on his phone to the other 176 defendants as part of discovery materials. Critics dubbed the episode a case of "revenge porn," which is a bit far-fetched, but a funny way to frame it. The defendants have all been ordered to delete the images.

'Confessions taken here'
All the high-profile murderers who pass through Williamson County appear to confess to this guy. Or maybe the confidential informant system incentivizes fabricated testimony. You make the call.

Might more ticket writing reduce traffic fatalities?
Corpus Christi has announced a plan to ramp up traffic ticket writing in response to traffic fatalities, although there's at best a tentative and unproven correlation between the two. For example, statewide, Texas has seen traffic fatalities decline during periods when police officers wrote fewer tickets. The correlation between writing more tickets and generating more revenue, by contrast, is much more firmly established.

Texas seeks shorter capital deadlines
Texas is seeking to opt-in to shortened timelines for death penalty appeals, reported Keri Blakinger at the Houston Chronicle, after Attorney General Jeff Sessions suggested it last year. Given the often-poor quality of capital representation under current timelines, it can't be a great idea to squeeze those timelines even further.

NY Times story on Galveston indigent defense ripe for other reporters to localize

In the New York Times last week (March 29), former Austin Statesman editor Richard Oppell authored an article that could resonate throughout Texas indigent defense systems, as it describes a practice that's widespread, not remotely limited to the judge or attorney in Galveston at the center of the story. Here's the heart of the allegations:

A criminal defense lawyer in Galveston, Tex., says he was pulled off cases defending poor clients because he spent too much time on them and requested funds to have their charges investigated. 

Needless to say, his clients were not the ones complaining. Instead, it was the judge, Jack Ewing, who appoints lawyers for those in his courtroom who cannot afford them. “You overwork cases,” Judge Ewing told the lawyer, Drew Willey, according to excerpts from a recorded conversation cited in the lawsuit. 

Though an estimated four of every five criminal defendants in the United States use court-appointed lawyers or public defenders, many of the nation’s indigent defense systems have been criticized as desperately inadequate, leading to false guilty pleas and overincarceration. 

Lawyers who represent the poor can be required to juggle hundreds of cases at a time, accept pay far lower than the market rate, or take cases for which they have little experience. 

This new case, though, exposes another potential problem: Indigent defense lawyers often get their assignments from the judges in whose courtroom they appear. This discourages a robust defense, experts say, and leads to an emphasis on resolving cases quickly. 

The tensions may be familiar to lawyers, but they are rarely so candidly aired as in this lawsuit, filed in federal court last week and bolstered by parts of a recorded conversation with the judge.

Grits has heard similar stories from defense attorneys for as long as I've paid attention to the Texas justice system, including attorneys stiffed not just for time worked but also for investigators' fees or even forensic services.

Which brings me to this observation for Texas-based reporters: This is a national story which can be localized. This isn't the only Texas jurisdiction, by any stretch, in which judges reduced pay requests from lawyers as excessive when they tried to put on a zealous defense. There are also stories out there of lawyers losing out on appointments because judges considered them a tad too zealous. Attorneys who make a living representing indigent clients must routinely take on caseloads well beyond bar-association-recommended guidelines in order to pay for a mortgage, middle-class lifestyle, and law-school debts. This story explains why, and it's not just happening in Galveston.

So, for my reporter friends on the local courthouse beat: There's a courthouse paper trail on cases where judges reduce attorneys' fees, which a local attorney who takes indigent cases or the court coordinator can help you identify. Then, one simply calls up the attorneys to ask why they requested the additional pay. Follow up with calls to the judges in question to get their side of the story; the county judge so s/he can lodge a complaint about unfunded mandates from the state; then make a call to indigent defense experts like the Texas Fair Defense Project or Civil Rights Corps (the two nonprofits that sued over Harris County's unconstitutional bail practices), and you've just localized a national story.

Indeed, there's a small mountain of data, including lawyer-specific payment information, available from the Texas Indigent Defense Commission. Once you dig into these topics, there's a lot of material for an enterprising reporter with which to work.

So thanks, Richard Oppell, for exposing a statewide problem in the form of this Galveston anecdote. Now it's up to Texas reporters to pick up the baton and expose the same practices in their own jurisdictions. The story's there to be had, and "It would make some local judges mad" isn't a good enough reason not to report it.

Danny Ray Thomas shooting cast harsh spotlight on Harris County police shootings

The shooting of Danny Ray Thomas, a mentally ill man with his pants around his ankles who was shot to death by a Harris County Sheriff's deputy, has made national headlines and led to a greater-than-ever light cast on shootings by law enforcement in Texas' largest county.

Grits wanted to round up a few of the more notable stories, as this episode appears as though it will frame debates over police accountability in Texas for the foreseeable future:

• The Intercept (Shaun King): Danny Ray Thomas was a broken man who needed help. Instead he was gunned down by a cop in broad daylight
• BBC: Houston officer shoots unarmed man with trousers down
• Texas Monthly: Fatal shooting of Danny Ray Thomas tests Houston's progressive law enforcement leaders
• Houston Chronicle: Deputy's shooting of Danny Ray Thomas reignites debate over use of force, police accountability
• Houston Chronicle: Deputy's bodycam was charging when unarmed man was fatally shot
• Houston Chronicle: Congresswoman Sheila Jackson Lee calls for federal probe of Houston police shooting
• Houston Chronicle (op-ed, Amanda Woog and Paul Heaton): Here's how Houston can prevent police shootings