Sunday, April 29, 2018

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
Death and Texas
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
Find a transcript of this episode below the jump.

Reasonably Suspicious Podcast, Episode 11, April 2018. Hosted by Scott Henson and Amanda Marzullo.

Mandy Marzullo: Hi, this is Amanda Marzullo. And our lead story today is a bit more than reasonably suspicious.

According to a tweet from the Texas A&M University police department, officers in College Station recently approached a man with his legs sticking out of some bushes. Asked what was going on, the suspect replied, "No bleeping idea." Asked where he was, the man answered, "Wherever you are." When asked how much he had to drink, the man replied, "Too much, sir." Subject arrested, the tweet concluded.

So Scott, do you think these officers had probable cause for an arrest?

Scott Henson: Well, I can't say for sure, because I'm not a lawyer. But to be fair, all of my answers were completely honest and accurate. I mean wherever you are is technically correct. I'm just saying, I'm thinking I'm not getting full credit for at least honesty.

Mandy Marzullo: Honestly, yeah. And you know, I know it's on the books, but I don't think public intoxication is a real offense anyway.

Scott Henson: Not a real crime, not a real thing, I agree. All right, boys and girls, welcome to the April 2018 episode of the Reasonably Suspicious podcast. I'm Scott Henson, Policy Director of Just Liberty. Here today with our good friend Mandy Marzullo from the Texas Defender Service. On the show today, Texas' revenge porn law has been declared unconstitutional. The Texas Supreme Court will decide whether District Attorneys can fire prosecutors for refusing to intentionally violate the law. And Just Liberty releases a new tune promoting reduced incarceration and prison closures.

Scott Henson: First up through, in Travis County the Council for State Governments has issued a new analysis showing a huge difference in defendant outcomes based on whether or not the defendant has an appointed lawyer. Defendants charged with state-jail felony drug crimes - typically possession of less than a gram of a controlled substance, or less than the amount of sweetener in a Sweet'N Low packet - were convicted 48% of the time if they hired their own lawyer, but 80% of the time if the court appointed one. Meanwhile, bookings in Travis County for state jail felony drug possession increased 34% over the last five years, while jail booking overall declined 14% over the same period.

County Judge Sara Eckhart has proposed eliminating flat fee payments for attorneys in response. Shifting to hourly or salaried options, including possibly creating a public defender office. So Mandy, what's your takeaway from this data, and how should Travis County respond?

Mandy Marzullo: Well I guess as usual with these reports, they raise more questions than answers. I think Judge Eckhart's proposal will eliminate a large part of the problem with respect to indigent defense representation in Travis County. Those of you who listen to the podcast will probably know that flat fees in many ways create a perverse incentive for attorneys. Essentially they're paid the same amount no matter how much work that they put into a case. So it creates an incentive to do as little as possible.

Scott Henson: Right, it's easier to plead the case out the first time you get an offer than it is to investigate it and try and debunk the prosecution's case.

Mandy Marzullo: Yeah, and that's exactly what I think is probably happening. A recent article that you blogged about with the Texas Tribune sort of reports that one attorney had a very high case load. But it seems that the reason why her case load was so high is that their standards doesn't measure how many cases she has in an annual cycle. Just how many cases she's handling at any one time. So under a flat fee system, that means that if she closes out her case, she'll get her fee. And then she'll be reappointed to another one.

Scott Henson: Right. She had had nearly 800 cases in a year, which is more than four times what an attorney probably should be handling. And she wasn't the only one. There were quite a few with hundreds and hundreds of cases. Well over what the guidelines are for what attorneys ought to be handing in these sorts of cases.

So they really do have a big problem in Travis County. We've got a situation where we shifted to the managed assigned council here in Austin several years ago. This new system where supposedly the defense bar is going to manage itself. And all of the outcomes have gotten worse. The case loads of attorneys have gotten higher. We now know that on these drug cases, indigent defendants are being convicted in 80% of the cases, compared to 48% where the attorneys are hired. Incarceration in the county jail we found out in the council for state governments report, increased over the past few years. It went from an average of eight days for indigent defendants to nine days. So we have people staying in jail longer. We have higher case loads, and terrible outcomes. And so it's really just an enormous mess.

Mandy Marzullo: Yeah, so I think that this report ... And I should say that the report that's been released publicly is just a summary report with recommendations. There is a larger report that goes into more depth that has not been released, so some of the answers may be in there. But it does warrant taking a good look at how attorneys are being appointed, what their rate is, and how that compares to the rates that they're getting in the private sector. And maybe also to maybe even match cases that are handled by the same attorney in the indigent defense system versus in the private sector to see what really is happening.

Scott Henson: That's right. Because the dirty little secret here is that when we say oh 80% of the cases if indigent defendants are getting convictions, and 48% of those where the attorneys were hired. The truth is, a bunch of those were probably the same lawyers. What we're probably seeing is attorneys who are working hard when they're hired, and how are just pleaing the case out as quickly as they can when it's an indigent client. And that really is a huge problem, and part of it is the pay structure. And part of it is just that maybe those attorneys aren't really behaving in the most ethical way as well.

Mandy Marzullo: Yeah, no it's sad. Next up, the Texas Supreme Court will soon decide whether former Neuces County District Attorney Mark Skurka violated the law when he fired Prosecutor Greg Hillman for refusing to violate Texas' Michael Morton act guaranteeing that prosecutor's share favorable evidence with defense council. In the Houston Chronicle, Pulitzer prize winning columnist Lisa Falkenberg urged the court to side with Mr. Hillman. Declaring that prosecutors, "Shouldn't be forced to choose between their jobs and their duty to do justice." So Scott, what does this episode tell us about Texas prosecutors compliance with the Michael Morton act?

Scott Henson: That in at least some cases it's incredibly grudging. This idea that you would actually fire a prosecutor for handing over exculpatory evidence just seems outlandish on its face. And yet, the intermediate court of appeals actually said it was okay. That prosecutors are at will employees and can be fired for anything, including refusal to violate the law. Strangely if this were a private employer, Texas case law actually already says that you cannot be fired for refusing to violate the law even if you're an at will employee. This case is raising the question of doesn't hat also apply to a public employee? And so far, the courts have said, "No it does not."

Now the Supreme Court granting this does mean that at least four members thought that that wasn't right. And maybe we're going to get a different outcome here, but it's pretty outlandish really that they just though, oh sure you can fire him for that. It's kind of nuts.

Mandy Marzullo: No, it's crazy. And also, I think it's worth noting that the underlying Brady violation in this case really turns on a common practice in Texas. Where the line prosecutor, Mr. Hillman, had identified a witness who was not referenced in the police reports, but who verified the defendant's account of the night in question.

Scott Henson: Confirmed an alibi.

Mandy Marzullo: Yeah. And his supervisor told him not to disclose this evidence because he conducted the interview and that it was "work product." But that privilege, really doesn't exist. Just because a prosecutor conducts an investigation doesn't make a statement privileged.

Scott Henson: Right. This is an outlandish abuse of power really. And I hope the Supreme Court slaps down Mr. Skurka.

(Jingle segment: ~ 9:00) All right next up, Just Liberty this week launched a new campaign aimed at urging Texas officials to reduce incarceration and close more prisons. We commissioned a jingle, produced by the Virtuoso guitarist Gabe Rhodes, with vocals by the great Malford Milligan, and drums by percussion guru Dony Wynn. I wrote the lyrics, and because I'm hip and in touch with what the kids are into these days, it's a train song. Give it a listen.

Play jingle.

Mandy Marzullo: So I got to say Scott, normally I don't consider jingles an art form. But I think you really outdid yourself here.

Scott Henson: Thank you, we had a ton of fun with this. And Gabe Rhodes did an absolutely amazing job. I thought he completely killed it. We're going to use this for everything. For all sorts of reduce incarceration bills, and proposals. And we're going out next week and sending email to the Department of Criminal Justice and asking them to include prison closures in their budget requests. So we're going to use this as essentially theme music, and just a promotional jingle for the entire decarceration campaign through next session. And if nothing else, I'll have more fun.

Mandy Marzullo: Well that's what matters most.

Scott Henson: Next up in our Death and Texas segment on capital punishment. Mandy tells us about the case of Juan Castillo, who has been schedule for execution in May without courts having considered the implications of recanted informant testimony in his trial.

Scott Henson: Currently the US Supreme Court is considering whether to hear the case of Juan Castillo, who is scheduled for execution on May 16th. Last fall, the court of criminal appeals stayed a previous execution date and remanded his case for fact finding about his claim that an informants false testimony affected the outcome of his trial. So Mandy, what should folks know about this case?

Mandy Marzullo: This case, and full disclosure, Texas Defender Service actually represents Mr. Castillo.

Scott Henson: Right.

Mandy Marzullo: So there is bias here. But this case really is an example of how a case can cycle through the court system without any meaningful review whatsoever. So last fall the court of criminal appeals stayed Mr. Castillo's execution on the grounds that informant testimony may have affected the outcome of his trial. And directed the trial court to look into it.

Scott Henson: Yeah, false informant testimony.

Mandy Marzullo: False informant testimony, where he had recanted his statements. And we know that incentivized testimony is circumspect, just in general. There are a lot of problems with it that we've seen across cases. And much of the states case against Mr. Castillo is relying on statements of others can Mr. Castillo confessed.

Scott Henson: Right.

Mandy Marzullo: So it's not a particularly strong evidentiary case to begin with, which is one reason why we took it. But what happened in the trial court was pretty extraordinary. The case, once the case was in the trial court, it was there for really only a day. It was referred to the original judge who presided over the trial for bureaucratic reasons. The prosecutors office in Baer County submitted their brief to explain what happened and why there was no reason to open it up. And then the sitting judge adopted those findings, or proposed findings from the prosecutor's brief within a day. And provided us with no opportunity to substantiate our case and prove it, and that's where we are.

Scott Henson: So just to be really clear for the non-lawyers out there. This writ of habeas corpus had gone to the Court of Criminal Appeals. And they said, "Okay this informant issue needs to be looked at more closely. We're going to send it back down to the trial court judge for further consideration. "

Mandy Marzullo: Yes.

Scott Henson: But when it came back to the trial court judge, she did not give you an opportunity to issue a brief, to have a hearing, to really have any input at all.

Mandy Marzullo: No.

Scott Henson: And she just adopted the prosecutors findings of fact and put a rubber stamp on it, and sent it back. And the court of criminal appeals said, "That's good enough for us."

Mandy Marzullo: Yes, absolutely. So now we're in front of the US Supreme Court, and the issue is do we even have a right of due process?

Scott Henson: Right. And what was the point really of the Court of Criminal Appeals sending it back down if it's okay to have no examination at all of the issues. It makes no sense. It's kind of absurd on its face. And I don't understand why they then would think that was acceptable. They know these death penalty cases get incredible amounts of scrutiny. And why would you want to overlook potentially false informant testimony if that's going on?

Mandy Marzullo: It makes ... I can't explain it. I wish I could.

Scott Henson: Well good luck on your appeal to the Supreme Court.

Mandy Marzullo: All right, thanks. Coming up, Scott and I play fill in the blank evaluating disparate outcomes in elections. Why Texas hasn't faced the worst of the opioid crisis. And judges who reduce indigent defense payments. But first, here's a quick word from Just Liberty.

Platform campaign jingle - Justice is blind ...

Scott Henson: Just Liberty's campaign to install criminal justice reform and the platforms of both Texas political parties is in full swing. With resolutions passing at a majority of senate districts in both parties. We'll have a booth at both state conventions in June. If you're going to be a delegate, stop by and see us. And support adding our criminal justice reform proposals to your party platform.

Music rises, falls.

Scott Henson: Next up, Mandy and I play fill in the blank. A competition in which each of us suggests how to best complete a sentence, and then mine is acknowledged as the correct answer.

Mandy Marzullo: Yeah, I don't know about that. We'll see.

Scott Henson: First up, Galveston County court of law Judge Jack Ewing has been sued by local criminal defense lawyer after he reduced his fees on indigent defense cases. And chastised him for spending too much time investigating misdemeanor charges. The New York Times reported the lawsuit exposed a common but seldom discussed problem, "Indigent defense lawyers often get their assignments from the judges in whose courtrooms they appear. This discourages a robust defense experts say, and leads to an emphasis on resolving cases quickly." Mandy, the counties in the state keep pointing fingers at one another over who's responsible for underfunding indigent defense. But this story shows how those decisions are practically made in real life by local judges. So fill in the blank. The poor quality of indigent representation for misdemeanors is caused by ...

Mandy Marzullo: The judges conflict of interest. So as the New York Times has pointed out here, clearly judges put pressure on defense attorneys to move their cases quickly. Which means not investigating them, and not engaging in selas advocacy. And when you do do that, you are less likely to receive appointments. In Texas we have a wheel, but we also have judges who deviate from the wheel.

Scott Henson: I would say that this shows that the poor quality of indigent representation is caused by judicial chanciness.

Mandy Marzullo: That too.

Scott Henson: You look at all of the cost that the judge is creating by doing this. You don't have a good representation on the front end, and so the defendant is more likely to spend time sitting in jail pre-trial, and the tax payers pay for that. They're more likely to be convicted, we saw this earlier. How much more likely anyway you are to be convicted if you have appointed council. So you're more likely to go to prison if you have appointed council. All these things if you spend just a little money on the front end, the tax payers benefit a lot on the back end. He's only saving a tiny amount by not paying for this fellas investigation.

Mandy Marzullo: Well that's what I think in some ways makes what Larry Krazner in Philadelphia, who's the District Attorney there, sort of interesting. Because part of the problem here right is that judges are given a budget for indigent defense under our system. And it's a limited amount that they're supposed to use. And creating a savings further on down the road in a defendants case, or life cycle really, isn't really going to impact their budget.

Scott Henson: That's right, that's right.

Mandy Marzullo: We're robbing Peter to pay Paul, which I think I've said now in every single podcast that we've made. But it's this ongoing problem, that our system is so fragmented.

Mandy Marzullo: Next up, in Tarrant County so far this year, a formerly incarcerated woman has received a five year sentence for mistakenly voting. And an elected justice of the peace received probation for intentionally submitting fraudulent signatures to get his name on the ballot. So Scott, fill in the blank. These cases tell us blank about prosecutor discretion in election cases.

Scott Henson: That it is incredibly politicized. The case where the woman got five years really was in my opinion an abuse of prosecutorial power. To go after her that hard, she was a woman who did not understand the rules. She went to vote, and they gave her a provisional ballot. She didn't conceal anything, she just didn't know the rules. Her ballot was never counted, and-

Mandy Marzullo: And by the way, she wanted to perform her civic duty.

Scott Henson: That's right, that's right. Meanwhile this justice of the peace literally is fixing an election. He's literally committing fraud in order to get his name on the ballot based on misrepresentation. And his behavior directly undermines democratic government in a way that this woman's bureaucratic error does not. And yet he gets probation, she's got a five year prison sentence.

Now, the prosecutor would say the reason for this was the trial penalty. That she did not take responsibility for her crime, and the judge did. Well that's to me, because the judge was responsible. That there was actually mens rea in his situation, and he did have a guilty mind. He understood he was committing fraud. She made a mistake. And so I don't really find that a convincing argument. How would you answer it?

Mandy Marzullo: I almost want to say tell us nothing about prosecut-, that we already know that prosecutorial discretion is running rampant here. We already knew this system sucks.

Scott Henson: Fair enough. Finally, former Democratic Texas congressman Silvestre Reyes authored a column in the Austin Statesman calling on Texas to stem the tide of Fentanyl in the wake of a national spike on opioid deaths. But Texas has not seen such a Fentanyl related spike. And the addiction research institute at the University of Texas at Austin recently offered an explanation. "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 to 50% compared to 80 to 85% purity from Mexican South American heroin in the Northeast. So Mandy, fill in the blank. Concerns about a Fentanyl epidemic in Texas are ...

Mandy Marzullo: Grossly overstated due to the poor quality of our drugs. Clearly, that's the problem here. I mean I'm being a bit facetious, but yes it's overstated. This is a solution in search of a problem. I guess it's good sometimes to not have good things.

Scott Henson: Uh, this is why we can't have good things? Poor quality heroin so we don't get Fentanyl overdoses? I don't know.

Mandy Marzullo: I don't know. That's one problem we've avoided. Those snobby Yankees. Serves them right up North!  Sorry.

Scott Henson: That's right. Well the problem is that really we're not really that much better off. I would say concerns about the Fentanyl epidemic in Texas are diverting attention from the real problems. Yes, it's absolutely true that we have not seen the opioid spike, opioid overdose spike that they have in the Northeast. What's not being said, and what was not said on Congressman Reyes' column is that we have more meth overdoses in Texas than opioid overdoses. And methamphetamines is actually where our more significant addiction problem lies. And this has to do with geographical issues.

It has to do with Texas policy. We made some policy decisions that actually allowed Mexican meth to flood into the state and drove prices down to less than half what they were a decade ago. And so we aren't seeing the Fentanyl problem because we have a different problem. And it's sad that a congressman is so out of touch with his own state that he isn't aware of it.

Mandy Marzullo: Definitely.

Scott Henson: Now it's time for our rapid fire segment we call the last hurrah. Mandy, are you ready?

Mandy Marzullo: I'm ready.

Scott Henson: The city of Houston has enacted new zoning restrictions to limit the creation or expansion of halfway houses, treatment centers, and re-entry facilities. So Mandy, is this going to make the city safer?

Mandy Marzullo: Absolutely not. These types of facilities are like lighthouses. They're a public good that reduce crime, and making them fewer and far between is just going to make things worse. So Scott, Texas' so called revenge porn statute passed in 2015, and has been declared unconstitutional by the Tyler Court of Appeals on freedom of speech grounds. So Scott, should Texas expect the court of criminal appeals to reinstate the revenge porn law or overturn it?

Scott Henson: This sucker is toast. It is absolutely 100% going to be overturned. The court of criminal appeals has visited these free speech issues several times recently as it relates to statutes restricting online speech. Texas prosecutors have brought a number of these statutes forward. And they keep getting knocked down by the courts. We've seen improper photography, online solicitation with a minor, now revenge porn. And while no one is saying any of these are good things, revenge porn isn't a good thing. What we're saying isn't what the 12th court of appeals is saying. Is that the law they wrote is far too over broad and simply ignores all First Amendment jurors prudence. And you just don't get to do that. You can't restrict speech with criminal law in as sweeping of fashion as they want to. And it doesn't matter if the prosecutor association tells you it's okay Texas legislators. It's not, stop listening to them. They're giving you bad advice.

Mandy Marzullo: Yes, listen to Mark Bennett!

Scott Henson: That's right. Finally, a Harris County Sheriff's deputy was fired by Sheriff Ed Gonzales after he shot Danny Ray Thomas, an unarmed black man whose pants were around his ankles when the deputy fired the fatal shot. Mandy will firing officers after the fact solve the problem, or do we need to consider front end solutions?

Mandy Marzullo: Clearly we need to consider front end solutions. Mr. Thomas was actually in a psychotic state at the time he was shot. And I think this is indicative that law enforcement needs to receive deescalation training. And also a way of identifying situations like this where a defendant is really having a mental health episode. And to have support and resources where they can bring somebody in who knows how to handle that type of situation.

Scott Henson: That's a great point. With the mans pants around his ankle, there had to be some way to de-escalate.

Mandy Marzullo: Yeah. There's a joke in here, I just don't know what it is.

Scott Henson: All right. Well we're out of time, but we'll try and do better the next time. Until then, I'm
Scott Henson with Just Liberty.

Mandy Marzullo: And I'm Amanda Marzullo from the Texas Defender Service.

Scott Henson: Goodbye folks. Actually, give me a goodbye there.

Mandy Marzullo: Goodbye, and thanks for listening.

Scott Henson: Goodbye, folks. You can subscribe to the Reasonably Suspicious podcast on iTunes, Google Play, or SoundCloud. We'll be back next month with more, and hopefully better news. Until then, keep fighting for criminal justice reform. It's the only way it's going to happen.

Transcript by Edited lightly for accuracy, clarity and grammar by Scott Henson.


Steven Michael Seys said...

Thanks, Mandy and Scott. As ever, you touched on some important issues. Let's hope you stirred up the debate.

Anonymous said...

Judge refused to pay for a misdemeanor investigation? Hell, in this circuit you aren't even entitled to a jury trial for a federal misdemeanor!

See United States vs Hollingsworth,

Anonymous said...

Crazy zoning rule in Houston.

It’s an attempt to ban alternative housing and correctional facilities, including reentry homes, from opening within 1,000 feet of schools, parks, or other facilities.

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.

The truth is, this measure is a way to use government to rid communities of private citizens who some homeowners see as undesirable neighbors.