Monday, July 23, 2018

Bail a 'tool of oppression,' SA police discipline full of holes, a decided lack of lessons from the McKinney pool party, and other stories

Here are a few odds and ends for Grits readers to consider while you're stuck inside (one hopes) waiting out these 105 110 degree days!

Austin police falsely accused man of pointing gun at officer
A man in Austin sat in jail for 15 months on charges that he pointed a weapon at officers, but authorities have known for much of that time that, in fact, he did not. Once the defense found out about the contrary evidence, they were allowed to plead to a lesser offense and the defendant was released with a sentence of "time served." The man's attorney told the paper the case “exposes how broken our bail system is and is used as a tool of oppression.”

SAPD lieutenant, fired repeatedly, may return to force
A San Antonio police lieutenant who has been fired repeatedly - most recently for making a homophobic remark on social media about the chief - may get his job back again, the SA Express News reported. That's a broken discipline system; management has almost no ability to weed out bad apples if four indefinite suspensions were overturned. Reported Emilie Eaton, "four police chiefs have suspended [this officer] without pay or fired him, for a total of 17 disciplinary actions. Four times, he fought and got his job back. Through appeals, he sometimes won shorter suspensions. Still, he was suspended for about 300 days, records show. He’s an example of how officers are able to reduce their penalties or save their jobs by exercising their rights under union contracts to seek outside arbitration and get chiefs’ decisions overturned."

Nobody learned much from McKinney pool party fiasco
A reporter from The Atlantic revisited the McKinney-pool-party police-brutality episode on its third anniversary. She depicts a divided community in denial where attitudes following the episode hardened into accusatory/defensive postures and the conversation never moved much beyond that.

TX not sufficiently treating, nor preventing, Hep C
The SA Express News wrote about the lack of access to Heptatitis C drugs for many Medicaid recipients, but they could have also mentioned state prisoners. Up to 50,000 prisoners have Hep C, TDCJ officials have estimated, which means they make up around nine percent of the total 580,000 estimated cases statewide. Nearly all of those people will eventually get out, so treating them would prevent spreading the disease. The other thing that would prevent the disease would be to allow charities to operate needle exchange programs. A big part of the spike in Hep C, according to the report, is needle sharing among heroin addicts.

Lawsuit could invalidate thousands of red-light camera tickets
Sometimes you piss off the wrong lawyer. In this case, an attorney fought a $75 red light ticket in court for years, arguing that it's invalid because the ticketing agency had never done an engineering study before installing the machines. The law definitely says they can't install cameras without such a study, I remember when state Rep. Gary Elkins got that added to the statute. Apparently, most cities ignored that provision! Can't wait to see if the Supreme Court agrees to hear the case!

'Rubber stamping' charges in capital cases overstated
Grits was quoted in this story about a study of Harris County death penalty cases which found that more than nine out of ten "findings of fact and conclusions of law" prepared by a trial court in habeas corpus proceedings are taken verbatim from prosecution briefs. Like Judge Elsa Alcala, also quoted in the story, Grits was unimpressed with the claim that the arguments were reproduced verbatim. In the Washington Post, Radley Balko went even further, accusing judges who adopted prosecutors' findings of "plagiarism." That's pure foolishness. In reality, it's common as dirt for the judge to hear both sides, make her rulings, then tell the winning side to write a draft of the final order. That's how most of the DNA exonerations, which were all habeas corpus writs, typically ended. Indeed, what happened in the Harris County bail case - where Judge Lee Rosenthal herself wrote a 100+ page order herself in the civil suit - is quite rare, even on the civil side, much less in criminal cases and particularly in habeas corpus writs. Judges having one of the parties draft their order, preserving the right to edit or alter it, is much more common. So that part of the critique is overstated.

So is, to a degree, the critique of the 90%+ number. One would expect the state to win a disproportionate number of these appeals. They're mandated after all, in death-penalty cases, while most similarly situated non-capital cases would never reach an appellate judge's desk. The real question is: Are defendants getting a fair shake? In some cases, like that of Juan Castillo, who was executed this spring, trial court judges have rubber stamped findings without giving the defense an opportunity to hold a hearing or even file a brief! That, to this non-lawyer, seems improper. But saying a judge simply should never adopt proposed findings from a prosecutor isn't a particularly compelling critique.

UPDATE (7/24): A capital attorney whom I respect called and chewed my ass for an hour about this item, but mostly kept repeating things I'd already agreed with in the prose above. Finally getting down to brass tacks on her precise disagreement, her complaints would have been satisfied by adding a five-word subclause that emphasized that Harris County judges aren't holding hearings in most state capital habeas writs, and in that way the cases in this study are not comparable to habeas writs in DNA exonerations, where hearings are more typically held. So noted, though I doubt that clarification will make anyone any more happy. Capital attorneys are a grumpy bunch.

Concussion protocols for criminal defense attorneys?
In the July episode of the Reasonably Suspicious podcast, Texas Defender Service executive director Mandy Marzullo and I discussed a case (~18:20 mark) that's the subject of this recent SA Express-News column: The lead attorney in a capital case suffered a concussion and visiting Judge Susan Reed, the former tuff-on-crime DA who voters forcibly retired in 2014, tried to make the defense team move forward without qualified attorneys until she grudgingly called a mistrial. Josh Brodesky provides an account that corroborates Mandy's recollections.

New competency restoration beds too little, too late
With months-long backlogs for competency restoration beds at state mental hospitals, any new beds are welcome. But the 40 added in San Antonio for $11 million barely scratched the surface of the problem. Like announcing you're going to bail out all the water in Lake Palestine, then pulling out a teaspoon to perform the task.

Indictments: Evidence tampering related to farm equipment implicated TDCJ managers in Huntsville
At the Texas Department of Criminal Justice's Eastham Unit, "Three Texas prison officials were arrested this month in an alleged scheme to set tractor parts on fire in a burn pit behind a Houston County lock-up as part of an apparent attempt to dispose of evidence in an investigation," Keri Blakinger reported at the Houston Chronicle. This wasn't routine guard misbehavior: It involved the farm-shop property manager and "two higher-ranking officials based in Huntsville, Terry Price and Rick Ellis, [who] were charged with tampering with evidence, according to court records."

First big summer heat blast hits after TDCJ lost temperature litigation
After settling the lawsuit over heat-related deaths at the Pack Unit, acquiescing in most of the plaintiff's demands after the Fifth Circuit refused to grant summary judgment, TDCJ officials must be sweating (pun intended) over the possibility that more inmates could die in un-air-conditioned units thanks to the record setting heat this summer. Maybe that will mean they'll do a better job of providing ice and water, but for people kept essentially in metal boxes in 105+ degree weather - both inmates and staff - that's hardly much comfort. This Houston Chronicle story considered the issue. "Overall, just 29 Texas prisons provide air-conditioned living units, while another 75 facilities do not have it." MORE: From the Marshall Project.

Bondsmen getting head start opposing bail reform
More on this later, but the bail bondsmen have formed their own front group with a fairly elaborate website to oppose bail reform in Texas in the 2019 legislative session. Problem is, thanks to Judge Rosenthal's decision and the 5th Circuit's ruling, something has to change. And if the Legislature doesn't take charge, it will change via county-by-county litigation, which has already spread to Galveston and Dallas counties and will go wider, guaranteed, if the Lege doesn't step in. Doing nothing, which is what the bail bondsmen want, just isn't an option. But they'll only settle for maintenance of the status quo. So, ironically, thanks to the federal courts, even if they win, in the long run, they lose.

1 comment:

Radley Balko said...

My point was quite a bit more nuanced than accusing them of plagiarism. My point was that the judges are issuing these orders without intellectually engaging the arguments. Given that they weren't even holding hearings, that seems to be a pretty accurate assessment. The fact that this practice seems so scandalous to most people outside of Texas -- including those who work in criminal defense -- but ho-hum to those in the state, suggests to me that this is a "fish don't notice that it's wet" problem. Got a similar reaction when I wrote about Harris County putting cops on grand juries.