Thursday, April 05, 2018

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

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.


Unethical Alex said...

re: SCOT to decide if DA can fire prosecutors for refusing to violate Michael Morton Act

"Texas law has long protected a government agency’s right to fire an at-will employee for almost any reason - even refusal to violate the law."

There is a certain amount of stupidity in Texas Law. District Attorney Mark Skurka should have that stupidity beaten out of him. What's next? Requiring subordinates to Suborn perjury? Witness Intimidation? Theft of Drug Evidence? Bribery? "Code Reds"?

And it's not just attorneys. This happens to forensic lab analysts all the time. Cecily Hamilton, Debra Stephens, Amanda Culbertson, Jorge Wong, etc., etc. It's a long embarrassing list that the Forensic Science Commission has, but won't do anything about.

In Arizona, most recently a lab analyst had to sue his supervisors because he was told to "modify [his] testimony in such a way as to bring it into alignment with the position of the laboratory and other analysts." But if the lab is shit, then he should be able to opine as much.

Anonymous said...

The entire arrest--trial-overkill sentence---prison industry game-----parole/probation---no job possible afterwards mambo is a huge self licking ice cream cone that the public pays for with ridiculous taxes on their homes.

A great example of WMW---White Man's Welfare

Just watched a guy get released from TDCJ---what a dizzying array of state offices a person gets processed through just to go out the door. One office votes on letting the clown go, another does the "approval", another issues the "certificate", another office handles the release date, then the family has 24 hours to get the person hundreds of miles away back home to register with parole on the other side of the state or an arrest warrant will be issued. Then, on the first Wednesday after release the freshly released convict goes to the local police station to get yet another set of fingerprints and photographs added to the stack that were done while he was incarcerated. Countless convicts get rearrested because they are too loopy to make a bus connection so they miss the 24 hour deadline. Strike up the band again.

But now---once actually out---money stops being spent and the convict withers on the vine in a halfway house or holding tank unless he or she has a family willing to support them. Few do. So eventually the inevitable parole violation occurs and the patsy gets thrown back into the revolving door. Public defender, court psychiatrist evaluation, motions, maybe another lawyer, trial, more prison and the beat goes on.

Jobs for everybody.

The ever roving beggars with the cardboard signs tell the tale that the media and courts try to hide behind the superficial "homeless" deception. Then, after parole is over and the newly minted wanderer can tell police "So, you want to know my address huh? Well look at this backpack because that IS my address." At that stage detective Sheer Luck Holmes has to go file a report that says a confronted man laughed at him and said "No, I got no address, maybe I can stay with you?"

Make no mistake, the state desperately NEEDS recidivism to keep unemployment down just a bit.

Anonymous said...

Curious. If the court's docket call for prisoners is being conducted in the county jail, are these "public" proceedings open to the public?

Anonymous said...

The SCOT is jammed-packed with nothing but Government-is-Always-Right republicans so anyone thinking they would make the right call is going to be sadly disappointed.

john said...

Are Class C Misdemeanors jailable offenses? No:
Those Folks are to be taken to a Magistrate, not to jail.
Detaining IS REALLY ARRESTING, by the way. It's a stall, for cops. And they'll get paid overtime, if they take you to court, whether or not the arrest/ticket/etc. sticks. But in jail, you can get beat down and all sorts of damage--and count on cover-up.

Why do Cops get to do things, outside law? Because Courts let them--truly encourage them. Sure, Judges, D.A.s, and such could oversee it, but what's their motivation?

Is Harris County more rogue than Dallas, or is their competition? Is it because they can send SO MUCH MONEY to Austin? So the biggest cities stray farthest, from the laws of the Legislature?
-------"Government-is-Always-Right republicans" are certainly a dangerous problem for citizens, because they only care about increasing THEIR POWER & wealth-----Dan Parick was on TV about the border & Nat. Guard, last night--throwing out his usual wrong numbers (see also: [])-------
Harris CO. has backlogs because they have few courts available to the public. Most MUST go downtown where driving/parking is Hell. Yet when it flooded, the JUDGES didn't bother to go there to work. WE ALWAYS NEEDED MORE COURTS---OUT IN THE COUNTY WHERE REAL PEOPLE LIVE. If traffic makes YOU late for court, the Judge bombs you. If lawyers can't make it, or are working too many courts at the same time, cool. THERE'S NO OVERSIGHT OR ACCOUNTABILITY, on the court/union side of THE COPS' WAR ON AMERICA. AND they can easily turn off body cameras, they was they turn off car & traffic cameras--or your tape might get lost. JUDGES FOLLOW JUST THE LAWS EXPEDIENT FOR THEIR OPERATION, of the guild/Bar Assoc, the cops, the courts. They only Protect and Serve each other. How can they be trusted?
HOW CAN CITIZENS BE SAFE?? COPS will kill you and claim they feared for their lives. If you are dead, you can't witness against them.

Anonymous said...

Holy smoke much speed are you taking?

Anonymous said...

John, I applaud you. You sound like a candidate for action. Sometimes you have to force change. Good luck!

BarkGrowlBite said...

The police 'reform' bill has not yet passed and it may not ever reach Moonbeam for his signature. There is a very good reason why all of California's law enforcement organizations are bitterly opposed to this awful legislation. This bill would place officers in the position of letting someone get the first shot at them before they can fire their own weapons.

While it is obviously unfortunate that officers have shot unarmed persons they thought was armed, a cellphone or other object can easily be mistaken for a gun, especially in the dark.

Law enforcement officers do not want to shoot anyone, but they do want to go home to their families at the end of the shift.

“This bill will put officers in further danger and is about political expediency and not sound public policy,” wrote the Los Angeles Police Protective League in a searing statement. “The new proposal demands that officers have a Monday Morning Quarterback’s perspective before game day on Sunday. If enacted, it will either get cops killed or allow criminals to terrorize our streets unchecked. Pick one.”

The California Peace Officers Research Association, an organization I was very active in, called the bill “a dangerous rush to judgement” that “deceptively pretends that creating a checklist of what constitutes necessary force instead of reasonable force is something more than irresponsible legislation. The end result is that the public will be placed at greater risk.”

A retired Texas state police lieutenant says of the proposed law that "police have to be able to make quick decisions using their senses. This all but allows a criminal to take the first shot at a police officer before the police can respond with deadly force."

For those who would support such dangerous legislation, I say that you don't have any idea of the danger cops face when they are on duty. Police officers are getting shot almost every day in this country. Would you have the courage to become a cop? I don't think so!

BarkGrowlBite said...

Let me add that the title of the bill is the “Police Accountability and Community Protection Act.” That is intentionally misleading. An honest title would be the "Police Endangerment and Criminal Protection Act."

Anonymous said...


"This bill would place officers in the position of letting someone get the first shot at them before they can fire their own weapons."

Are these the words used in the bill, or have you taken an extreme position?

If a suspect is waiving a knife around, does the cop have to wait to get stabbed before he can shoot? No. You've taken a ridiculous hyperbolic position and polarized an "Us vs. Them" debate just as the LAPPL have.

There is an intermediary position which the TX House/Senate are attempting. Let's see if it works.

BarkGrowlBite said...

Anon 7:58, you know damn well those words are not in the bill. But that's the effect this bill will have if passed and signed by Moonbeam. LAPPL and the other California law enforcement organizations merely want to keep cops from getting killed, and that's not an "Us vs. Them" debate. Your position is that of "Us vs. The Police" which is typical of Grits for Breakfast followers.

Anonymous said...

The vast majority of police officers are cowards. They want to be revered as heroes but that's far from the reality. Just a couple of weeks ago a cop shot and killed a man who had his pants down around his ankles severely restricting his movement. The cop could have easily avoided physical contact had that been his goal, but he wanted his kill and he got it.

Cops know what they're signing up for. They relish the opportunity for violent confrontations, and will create them every chance they get, unarmed victims be damned.

BarkGrowlBite said...

Anon 10:52, thank you for proving my point that the typical Grits for Breakfast follower is a cop hater.

And since you obviously hate cops, don't bother to call 911 if you ever need the police to save your worthless ass!

Anonymous said...

What do you consider a worthwhile citizen?

TriggerMortis said...

Any of you ever look through BGB's previous comments? You can tell he's miserable as hell. At a time when he should be enjoying what little is left of his life, he's instigating verbal battles with those whose views differ from his own. You can just imagine what he was like with power, authority, a gun and a badge. And now that he has none of those anymore and he's been reduced to an ordinary citizen, he trolls the web engaging in spats in which he uses bullying and intimidation tactics to make his point. What a sick, hateful individual he must truly have been his entire life.

Anonymous said...

Ya know bark..why don't you for once act like an adult. Be productive in your arguments and not childish.

Anonymous said...

Cops are pretty much bullies and cowards. So quick to gun down an unarmed citizen during a traffic stop..but scared as hell to confront an armed shooter in aa hig school.

Oprah, Not Her said...


Anon 7:58 here.

I can appreciate a police officers position of not wanting to die on the job. As a serious question, are their non-lethal weapons that you would agree with, that you believe police officers could use with effectiveness (perhaps as a first option)? There are numerous options on the market which could be employed. Do you have an opinion on what could be used but isn't?

Officer Friendly said...

What an interesting thread. At least now I know who this Bark guy some of you spoke of in other threads. Given no one else seems willing to challenge the wilder statements made by anyone other than Bark, I can see why he might see things the way he does. The comments how police are either "pretty much bullies and cowards" or that the "vast majority" are is as false as the belief that officers are looking for kills or quick to gun someone down. In a country with reportedly over a million police of one sort or another, the numbers of "kills" just don't pan out to support those beliefs but some of you are likely venting out of frustration that nobody listens to you, I wonder why???

Anon 9:44, there are no weapons that are non-lethal. Depending on the circumstances, some may be less lethal than others but most officers don't have access to all of them and unlike modern videogames, we have no ability to instantly switch from one weapon to another with the press of a button. Bear with me a second here but if someone is pointing a gun at you and all you have in your hand is your baton or a taser, you're screwed. While tasers are less lethal than guns, they only work at very close range and even then only if both darts make solid contact with the suspect's skin. Even then they do not always work, sometimes killing a suspect, even weapons like bean bag shotguns can kill if the bag hits the wrong place...they are not as predictable as regular shells. In my personal experience, you'll get better results with better training and policies than relying on a quick fix gizmo, most of which over the last 30 years fell far short of the manufacturer's sales pitch.

Lee said...

Are prosecutors going to next commit genocide and claim that absolute immunity protects them from prosecution?

Oprah, Not Her said...

@ Officer Friendly-

I get the impression that you lean towards the "Us vs. Them" crowd in declaring that there are "no non-lethal weapons", but rather "less-lethal weapons". Of course, by this rational a plastic butter knife is lethal if used correctly.

There are "less lethal" weapon alternatives that address the scenarios you describe. But there will always be a scenario where that less-lethal weapon will not work.

"...if someone is pointing a gun at you and all you have in your hand is your baton or a taser, you're screwed...",

..but only if the gun is loaded and the suspect is an excellent shot and you're not wearing a bullet proof vest. And if you've only been given a baton and taser, maybe you should be better prepared for this possible scenario. How often does this occur? How often does someone point a cell phone at an officer?

If you don't like the tasers, find an alternative "gizmo" (as you call it). Bean bag shotguns may not be as predictable as regular shells, but then again, regular shells have the capacity to unintentionally kill or injure uninvolved civilians.

Better training and polices don't appear to be helping the matter of cop-associated civilian injury or death (the past 30 years have fallen short on expectation). Maybe if there were better officer training with the "gizmos" then the manufacturer's sales pitch wouldn't fall short of expectations and there would be less unintentional deaths. Don't be so quick to dismiss the alternatives.

BarkGrowlBite said...

OK TriggerMortis, it’s time for me to confess. I loved working nights which gave me the excuse of saying “I thought he was pointing a gun at me.” Every time before I left my home, I would look at the mirror and say,” I wonder how many people I can beat the shit out of or shoot tonight?”

I loved beating the shit out of people with my baton. Probably strummed at least a dozen heads every night. I preferred strumming the heads of white men because they are not as thick as those of blacks.

I was just itching to shoot someone, especially black men. I shot at least three people every month. Unfortunately my marksmanship was not always at its best because a few of those I shot were merely wounded.

I am most proud that I received my department’s prized ‘Killer Cop of the Year’ award four years in a row.

TriggerMortis, you are spot on. Now that retirement has reduced me to an ordinary citizen, I am miserable as hell because I can no longer strum heads with my beloved baton and can no longer shoot black men with my dear gun.

JC said...

Regarding the California bill restricting police use of force, perhaps disarming the police in their entirety is a better option. Bare with me here. This could have implications on many fronts, especially 2nd amendment issues. An unarmed government is not reasonably one to be feared, right? Another implication is that law enforcement would be forced to reevaluate their entire approach to policing. Additionally, all the petty organizations tasking law enforcement (yes, Texas, this one is you) with criminal enforcement responsibilities for petty crimes or administrative penalty enforcers will vanish overnight. Lastly, on occasion voters must be held accountable just as ardently as politicians. Should California vote to diminish their public service protections, they can live with that for a legislative session or two. Police, who have no duty to provide services according to SCOTUS, can routinely decline to handle violent situations immediately until the heat of the moment has passed. Local communities will have to take responsibility for...their communities. Since the police are unarmed state lawmakers can then begin paving the way to disarm citizens. Yes, it will take a while, but certainly this was the goal? With all parties being disarmed then public confidence in local police can be restored. Communities will be safer, violent crimes will be dramatically reduced, and police can go back to investigating crime as opposed to being the bully enforcement arms in the name of traffic control, regulatory crimes, drug manufacturers, and a myriad of social welfare programs they have no business administering. Admittedly, this will take a lot of time. But what have we got to lose? California wants police use of force to stop. By all means, make it stop immediately. Let’s see what happens.

Yes, I am in law enforcement. No, I would not want to be in law enforcement under the above conditions. Change my mind.

Anonymous said...

Speaking as a citizen with a professional involvement in quality management systems, the shooting of any unarmed civilian by an officer should never be viewed as a successful implementation of a police department's policies and procedures. In quality management jargon, it is an "adverse event." A good model for how to deal with adverse events is the air traffic safety system, where plane crashes are investigated by an official agency (not the airline involved) that is charged with determining the underlying causes of the event. That model is not followed for officer-involved shootings. Instead, the police agency itself conducts the investigation of its own adverse event. That is not an appropriate approach for loss-of-life events. There are inherent conflicts of interest in that approach, and it is not a reliable way to determine the underlying cause of the event, or the appropriate changes to be made to prevent future occurrences of similar events.

Officer Friendly said...

Oprah, I do not agree with the "us vs them" premise any more than I was hesitate to consider if a suspect's weapon was loaded or not. Long before I began my career in LE, I was instructed that every weapon was loaded and to treat them as such. Those that do not seem to have a markedly higher rate of "accidental discharges" or other problems, but I'm sure not going to consider it when someone appears to be intending me harm, a vest only protects a small portion of a person. As far as anyone needing to be an excellent shot, that just isn't accurate because people are killed every day by poor shots, and I don't like tasers because I have seen many times when they did not work under ordinary conditions. It's wonderful to think that electronic devices work 100% of the time but in the real world, that is not the case. A Taser might test fine in the morning but not hold a charge by afternoon, a radio might not work in a given dead zone, a EMP device to stop fleeing cars might not work if the humidity is too high even if a department gets one, few locally even consider them.

My comments regarding better policies and training are born out of personal experience, having officers qualify once or twice a year with their weapons on very basic courses trains rookies to a very narrow set of circumstances. Then, in an agency with thousands of people in it, just how much training with weapons do each of them get per year. Unless you are assigned to SWAT or a special detachment, you just aren't going to get enough proper training from your department, nor will your department make it easy for you to go outside because it doesn't want the liability, at least with HCSO and HPD.

Most judgement calls locally do not end up with a dead suspect but officers cannot cover every possible situation nor predict what a criminal is going to do, but the belief that such shootings are common is not true, at least in the last few years when official statistics have been kept they support that, previous years have limited data to speculate upon. I get that some of you would be more comfortable with the fictional "Demolition Man" approach to things, except too many criminals would take advantage of that so good luck finding applicants. My time in the field is almost done and I'm one bad day away from walking away, though I could stay another ten years under the right conditions, however unlikely that would be.

One last thing for the day. Anon 6:59 seems to think agencies are the only bodies to investigate their own shootings but this is simply not true. The agency itself may investigate concurrently but a shooting is also investigated by the DA's office and under suspicious circumstances, the feds are asked to come in as well. The idea is that multiple looks at the same events might yield more complete answers and stymie any cover ups. Those who make claims of cover ups should look at a complete case file on an officer shooting because there's just no incentive to try and hide anything on the part of the investigators, even if their conclusions may result in a head scratching moment, typically because someone on the command staff wanted a different look at a particular fact or otherwise took exception to something determined by the team of investigators.

Anonymous said...

Cops are true cowards in every sense. When they murdered unarmed Paul O’Neal in Chicago they high-fived and chest-bumped each other.

The country is turning and there will come a time when cops have to answer for their crimes. Murder has no statute of limitations.

Watch these vicious punks celebrate their kill. Right at 4:30 in the video:

DLW said...

Officer Friendly, thank you for your posts on this topic. I appreciate information that comes without confrontational name-calling.

I would argue a little with one thing. The local DA is not the best agency to investigate an officer involved shooting. The relationships are too close and the political issues can override neutral judgement and duty.

Anonymous said...

We pay police to take risks, and I expect them to do so. Shooting someone who turns out to be holding a cell phone or stick, or other innocuous object because the officer was "scared" means the officer was not taking the risks that are part of the job.

Anonymous said...

All cops should watch the preview of this video. Then imagine the brother or the father of this victim visiting your family and inflicting similar violence without provocation. Cops need to stop and think before they commit barbaric acts as these same acts may be visited on your family.

Oprah, not her said...

@Officer Friendly-

I second DLW's statement in that I appreciate the information and the non-confrontational chest thumping. It's refreshing to get a viewpoint of someone in the field that can approach the problems calmly and rationally. I would agree that more training and continuing re-training is probably the best option, not only for the officers but also the public (especially pre-teens who have yet begun to exhibit criminal tendencies). And I'll concede that guns are a necessity, but there should be some other "go-to" non-lethal device that should be available for those situations where suspects idiotically fail to drop their cell phones. If tasers suck, there has to be a better alternative.

Officer Friendly said...

DLW, Oprah, you're both welcome. What I've seen too many times in the past is that key players, either activists or police administration or union leaders, seem more interested in playing a role than in engaging in open communication to make things better for everyone. In the Houston area, the city police are led by a self important guy who lacks the educational requirements of his subordinates, who was always looking for a bigger, better deal for himself. He was already applying for other positions when new to Austin and his best credential to those asked is how he tells them what they want to hear. The county, on the other hand, is led by a former HPD sergeant notable for taking home files that could have helped defendants and not returning them until long after he was elected to city council. Having no experience in the HCSO puts him at a tremendous disadvantage to his own bureaucracy, almost nothing changing under his watch other than internal politics flipping to the other side.

DLW, I'd be fine with all local shootings being handled by the Texas Rangers or the FBI, if only to reduce local resources used by the appropriate divisions, something that too many forget is that in both large departments, all the groups looking into shootings have virtually never disagreed, including the Justice Department when it has been called in to review highly politicized cases. If the groups disagreed even 5% of the time, it would justify handling by outside review but activists expecting different results would be disappointed unless sweeping changes were made to the law.

Oprah, tasers work better in the summer time when people wear less clothing to deflect the darts but like the body cameras, I can't help but wonder if a better process for procurement might find better versions that are more effective. I think you'll find a bigger reduction is shootings if officers are ordered to back off and give situations more thought, it seems that most shootings are done by those with the least experience. There can be an unstated pressure to solve a problem quickly when calls are holding, most supervisors not well trained enough to lead officers, the legalistic approach doesn't impress me much either. But I'd be lying if I said most officers wanted to shoot someone, only a small percentage ever firing their weapon in the course of a career outside of the range.