Tuesday, September 25, 2018

Podcast: Did the innocence movement cause decline in clearance rates?

Check out the September, 2018 episode of the Reasonably Suspicious podcast from Just Liberty. Notably, the introduction features a brief poem regarding the Supreme Court nomination, per Keri Blakinger's request. ;)

Beyond that, here are the topics we're discussing this month:

Top Stories
Musical Interlude #1: Debtors Prison Blues

Home Court Advantage
Game segment: Fill in the Blank
Musical Interlude #2: Stop the Train

The Last Hurrah
  • Waco jail is full of pretrial prisoners
  • Twin Peaks cases delayed until new DA takes office
  • Why haven't incarceration, prosecutions, declined with crime rates?
Find a transcript of the podcast below the jump.

Transcript: September 2018 Reasonably Suspicious podcast hosted by Scott Henson and Amanda Marzullo.

Amanda Marzullo: Hi. This is Amanda Marzullo, and recently, Houston Chronicle reporter Keri Blakinger, a friend of the podcast, suggested that she'd like to hear more Supreme Court-themed poetry on the show. So, Scott, do you think you can oblige her?

Scott Henson: Well, sure, since everybody has the Supreme Court on their mind this week, I suppose we can do that. How about this one?
When Trump appointed Kavanuagh,
Conservatives around him saw
The path to getting rid of Roe
Now may not have so far to go.  
But women from his past complained
And a tempest all around him rained.
With those gals stepping up to spill it,
I bet Trump wishes he'd picked Don Willett.
Amanda Marzullo: Or not. Who knows?

Scott Henson: He must wish that all this isn't going on. Good Lord. But, anyway.

Hello, boys and girls. Welcome to the September 2018 episode of The Reasonably Suspicious Podcast, covering Texas criminal justice, politics, and policy. I'm Scott Henson, policy director at Just Liberty, here today with our good friend, Mandy Marzullo, who's executive director at the Texas Defender Service.
How are you doing today, Mandy?

Amanda Marzullo: I'm good. How are you?

Scott Henson: I'm really well. Coming up, crime labs are accusing innocent people based on DNA mixtures, Texas prisons won't give dentures to toothless inmates, and the Texas Department of Criminal Justice can't figure out how much air conditioners cost.

So Mandy, what are you looking for on the podcast today?

Amanda Marzullo: Air conditioning.

Scott Henson: Air conditioning?

Amanda Marzullo: Talking about anything construction-related at this point. That's my forte.

Scott Henson: Your home improvements have just taken over your life.

Amanda Marzullo: They've ruined my life is what they've done, but yes.

Scott Henson: Gotcha.

Amanda Marzullo: So glad someone else is feeling my pain.

Scott Henson: All right.

Amanda Marzullo: So, yeah. But first up, in our top story, Jay Wachtel at the John Jay School of Criminal Justice at the City University of New York recently suggested that reforms by and deference to the innocence movement has caused a decline in police clearance rates. In other words, the percentage of crimes they solve, because cops and prosecutors don't want to convict the wrong people. So Scott, what do you think? Are police clearance rates low because of the innocence movement?

Scott Henson: I have found this argument to be really weak and a little strange. I think back to everything Texas has done in response to innocence reforms, whether it be the changes to eyewitness identification or the junk science writ or compensation. None of these things are really restricting law enforcement in a significant way. Really only requiring corroboration for informants, I guess, would be the only one where there may have been some evidence that didn't come in at some point, because of the innocence reforms. I can't really think of anything that's restricted police practices significantly. Even the eyewitness identification reforms, they're voluntary guidelines. If they don't follow them, the court of criminal appeals has not been throwing out that evidence, and so I'm not convinced I really see where somehow these innocence reforms all of a sudden have caused clearance rates to decline. That seems a big leap.

Amanda Marzullo: Yeah, I kind of agree with you, as well. I think part of his point, though, was that what's happening is that it's a normative force that's happening on law enforcement, where they're not pursuing what might be a specious line of investigation, where they are just not going to be certain, because the evidence is going to be unreliable and they can't find physical evidence that's connecting someone to the crime. I think that's where he was kind of going with it.

Scott Henson: Right. So basically, if that's the case, then the argument would be that the difference is that they're convicting fewer innocent people.

Amanda Marzullo: Yeah.

Scott Henson: There are fewer people being railroaded.

Amanda Marzullo: Yeah, he's thinking that there's more integrity, I think, in the outcomes, because they're being more-

Scott Henson: Gotcha.

Amanda Marzullo: Cautious.

Scott Henson: Even with crime declining during the whole period.

Amanda Marzullo: But we're talking about clearance rates-

Scott Henson: That's right.

Amanda Marzullo: So it's a proportion of them. But I'm also skeptical, but it's sort of for a different reason. I just don't think ... I think that's a big leap on his part, just from looking at the data, because there's so many different things that impact how effective law enforcement is.

Scott Henson: That's right. There's lots of other explanations.

Amanda Marzullo: And most importantly, their relationship with the community, and with violent crime and the Black Lives Matter movement and all of the events that have led to it, and I think that there is ... How should I put this? I do think that there is a perception that law enforcement sometimes is not always a friend of the community.

Scott Henson: Well, and even beyond perception, you get to, for example, one out of 11 adult employees, adult workers in Texas, is an undocumented immigrant.

Amanda Marzullo: Yeah.

Scott Henson: And they explicitly are at risk with every interaction with law enforcement of potential deportation. And it would not surprise me if the ramping up of immigration enforcement had something to do with the reduction in clearance rates, because there are certain portions of the community that are simply not going to cooperate with police, that are not going to come forward as witnesses, that are going to be less likely to want to-

Amanda Marzullo: Even report when they're crime victims.

Scott Henson: That's exactly right. Especially report when they're crime victims. That's exactly right.

Amanda Marzullo: And so the other thing that you pointed out before we started the show is the type of murder, and if we're looking at sort of an uptick in gang violence. That could be something that is hard to investigate and requires a lot of relationships with people on the ground.

Scott Henson: That's exactly right. There are different types of murders. A murder that's essentially part of someone's professional drug business, where you're taking out competition or you're taking out an informant or someone, something of that nature. Those are a lot harder to solve than the guy who got mad at his neighbor and shot him, and everyone knows who did it. It's just something unfortunate that occurred. So we don't know what those ratios are, or for that matter, whether it's staffing, we've talked about. There's so many things that could come into play that sort of leap to, "Oh, it's because of the innocence projects. That's why clearance rates have declined."

Amanda Marzullo: And they've just gotten better. I mean, that's not where we are.

Scott Henson: That's right.

Amanda Marzullo: I mean, I hope it is.

Scott Henson: That's a nice spin to put on it, but I'm not sure it's really accurate.

Amanda Marzullo: Yeah.

Scott Henson: A study just published by the National Institute of Standards and Technology revealed that, when confronted with a DNA mixture sample, two-thirds of 108 crime labs across the country made errors that caused them to falsely accuse an innocent person. What's more, the federal agency delayed publication for years of this study, until other scientists demanded that it be published. And when they did finally put it out, they failed to include their most shocking findings in the abstract, or public descriptions of their work. So, Mandy, what are the implications of this news?

Amanda Marzullo: Well, they're pretty big, actually, I think. What it's showing is that DNA mixtures are unreliable and that we need to be really examining how and when they're introduced as evidence in court. But I think an even bigger lesson to be learned from it is how potentially unreliable a lot of our forensic science is. Ten years ago, we thought DNA analysis was the gold standard, and it applied to everything, and if you had it in your case, that told the truth.

Scott Henson: That was a slam-dunk.

Amanda Marzullo: That was a slam-dunk. And now we know the accuracy rate for DNA mixtures is similar to the accuracy rate for bite marks. I mean, it's not quite as atrocious, but it's up there. We're talking about more than half of the labs here implicating an innocent person.

Scott Henson: Right. Well, and they also said in that article that even though this was an article in The New York Times by a professor from Boise State, and he said that even in the ones where they accurately identified the right people, their probability ratios for how likely it was that it was those persons just varied all over the map, that there was no consistency whatsoever, even where they got the right person, the ratio where they'd say, "Oh, well, there's a one-in-however-many-billion chance that it's this person." Well, it just was ... There was no consistency whatsoever.

Just to give the listeners a little background, DNA, you always hear it being described as the gold standard for forensic evidence. And when we're talking about having DNA from one person and you're trying to match that sample to an individual and you find that everything matches up, it is indeed the gold standard. That's a very solid piece of evidence if you have a sample that only has one source and you have one person that you're matching it to.

Similarly, in a situation like a rape kit where you have two samples, but one of them is the victim and you know that person's DNA and you can back that out, that is very reliable. If you find another person's that matches that remaining DNA, that's a very high probability that that's going to be legit. That's about as good as we get in forensic science. When you get to three or four or five or more-

Amanda Marzullo: Or an unknown.

Scott Henson: Or an unknown.

Amanda Marzullo: Like a lot of evidence that you're going to be analyzing in connection with a violent crime case, this is going to be picked up from the field and they don't know how many people have touched that piece of evidence.

Scott Henson: Right. And for that matter, DNA mixture evidence increasingly is used in even property crimes. People want to use touch DNA, you'll hear it called, to solve property crimes. Well, touch DNA is just what it sounds like. It means that someone touched it, and anyone else who touched the same area could have also left DNA there. And another source of false convictions with DNA evidence, by the way, is that on touch DNA, it turns out you don't have to touch something to leave your touch DNA. It can be transferred, mixed onto somebody else's clothing. You give your friend a hug, and then they crawl through the window in a burglary later, your DNA may end up on that window.

And so it turns out that the mixture evidence really is a lot less reliable than we ever understood.

Amanda Marzullo: Yeah. And it's similar, also ... I mean, was it Kerry Max Cook's case where they found his thumbprint in the victim's apartment ...

Scott Henson: That sounds familiar.

Amanda Marzullo: I think the door jam?

Scott Henson: Yes.

Amanda Marzullo: I mean, that's also similar, right, with touch DNA. We don't know when it was left.

Scott Henson: That's exactly right.

Amanda Marzullo: On top of, like aggravating it even, like how did it even get there? It could be 20 years ago.

Scott Henson: That's right. You don't know the circumstances that surround it necessarily. But I think the DNA mixture science is so much less well developed than we're really led to believe. Even really in the aftermath of all this blowing up in Texas. I feel like, now that I see this study, it seems like it was understated, and they did tell us about the problems. But two-thirds of them getting it wrong? Wow.

Amanda Marzullo: Yeah, that is unreliable.

Scott Henson: At Texas Republican and Democratic statewide conventions in June, both political parties endorsed platform planks that would eliminate the government's use of incarceration to collect Class C Misdemeanor traffic ticket debt, a practice which has led to widespread criticisms of so-called debtors' prison practices.

Just Liberty created a little tune to promote bipartisan reform of the Texas debtor prison policies. Let's give it a listen.


Scott Henson: Now, a segment we call Home Court Advantage, although considering the topic, maybe we should call it Home Court Disadvantage this time around. Following up on a story we covered on the podcast last summer, the Federal Fifth Circuit Court of Appeals recently ruled that prosecutors who enter a plea deal with the defendant without disclosing evidence that would prove their innocence have not violated that defendant's constitutional rights. George Alvarez was beaten by Brownsville P.D. and then accused of assaulting a police officer, but prosecutors did not share the video of the incident before a plea deal was reached.

Mandy, what does this say to you about our justice system that the prosecutors, according to the Fifth Circuit, did no wrong here?

Amanda Marzullo: Well, it's just a person. I don't know why anyone would be upset. So, I think there are a few things. But one big thing is just how important our Federal judiciary is to making sure that our criminal justice system operates properly, and the regional focus of it because there is a circuit split. This isn't the law of the land. Other jurisdictions recognize that a person's constitutional rights are violated if exculpatory information is withheld at the time of a plea, and you know, Texas state law requires that this be disclosed. So it's one of those moments where the constitutional protections are less than our state law requirements. Now ...

Scott Henson: Right. The Michael Morton Act was ...

Amanda Marzullo: The Michael Morton Act.

Scott Henson: ... What we're talking about.

Amanda Marzullo: And that, I don't believe that it would have applied to Mr. Alvarez's case. I don't know it offhand, but just based on the timing, I'm suspecting ...

Scott Henson: It's from 2010, so before.

Amanda Marzullo: Yeah, it was before the Michael Morton Act went into effect, but you would hope that prosecutors would recognize their professional responsibility to disclose information to the defense and to do justice. But, you know, this is an issue that I hope is being brought up to the U.S. Supreme Court because it is important to our justice system, and again this is showing right now, with all of the politics in front of the Supreme Court, who's on that court makes a big difference in terms of what rights we have.

Scott Henson: Right, and on that front, I should say that while I jokingly mentioned in the poem at the top of the show about maybe Donald Trump wishes he'd appointed Don Willett, Judge Willett actually voted the wrong way on this. He voted with the majority and said that the prosecutors committed no misconduct, that it's a trial right, not a right that kicks in earlier, and I was very disappointed in that. (CORRECTION: While Judge Willett did not sign onto the dissent, he also declined to concur in the section of the majority opinion regarding Brady violations. I regret the error. -SH)

Amanda Marzullo: Yeah, and it doesn't make any sense. It departs from Supreme Court case law in general. The Supreme Court has said that your rights to due process and your rights to representation, your Sixth Amendment rights, attach to the plea deal. That's a famous case called Frye. So you would think by extension that those rights would apply to other rights embedded in the Sixth Amendment, would apply to a plea deal as well because 90% of all of our cases are disposed that way.

Scott Henson: Right. Well, and thank Heavens Mr. Alvarez was released. They found this evidence four years after he began his prison sentence and he was exonerated. The Texas Court of Criminal Appeals did overturn his conviction. But when he sued and won a $2.3 million jury verdict, the Fifth Circuit said nope, your constitutional rights weren't violated. So I think it is the case here that the state courts did better by Mr. Alvarez really than the Federal courts have so far, interestingly.

Amanda Marzullo: Next, a game we call Fill in the Blank, in which Scott and I suggest how best to complete different statements about the criminal justice system.

First up, the Texas Department of Criminal Justice has nearly ceased giving dentures to prisoners who lose their teeth despite a growing elderly population among inmates. Instead, the prison system puts their food in a blender and shifts them into a liquid only diet. Just a few years ago, hundreds of inmates per year may have received dentures. Keri Blakinger reported in the Houston Chronicle that thanks to budgetary cuts, only a handful of them get them now.

So, Scott, fill in the blank. TDCJ's position on toothless prisoners is ...?

Scott Henson: Heartless. It's hard to imagine, especially at a point in time when we're keeping all these elderly prisoners longer and longer. The proportion of elderly prisoners is growing in TDCJ, and so you're keeping them much longer than you need to, in many cases for public safety purposes in the first place. You're not taking care of their teeth, their teeth fall out, and so you're just going feed them out of the blender? It's outlandish, really. I don't know. How would you fill it in?

Amanda Marzullo: Again, it's just awful. I don't really know what else there is to say. These are people, we should treat them as people.

Scott Henson: Right. When I posted a link to this item on my blog, immediately some commenter came up saying, "Well, there are people out in the free world who don't have teeth and can't afford dentures, and so why should I be paying for them for people in prison?" Well, the answer to that is that, when the government chooses to limit your liberty, they become responsible for you. The rest of us, they're not necessarily responsible for all the non-indigent, non-disabled adults out there. But if they choose to lock you up, then the Supreme Court has said they're responsible for your healthcare. It wouldn't surprise me, frankly, if we see litigation over this. By the way, we should give a shout-out to Keri Blakinger on this because I've never seen this reporting done anywhere. I've not seen any reporting from any state on sort of the dental practices and who gets dentures in the prison system, and she really uncovered an interesting and awful situation that deserves redress. So good for her.

When TDCJ was sued over heat-related deaths in un-air conditioned prison units, they told the Federal courts it would cost $20 million to cool a single unit. At the time they settled the lawsuit, they claimed it would cost them $11 million. But when they were actually required to install a new cooling system, it turned out to cost only $4 million.

So Mandy, fill in the blank. The moving target for cost to cool prison units is ...

Amanda Marzullo: Falling? So, I'm going to ... My heart goes out to TDCJ here. I mean, as someone who recently had to deal with her own air conditioning snafu, the cost of replacing my condensing unit went from $5,000 to $350 within the span of two weeks. So, I mean ...

Scott Henson: And I'm sure it's exactly the same situation, too.

Amanda Marzullo: I mean, all right. Here's what I'm going to say. In order to reduce said cost, I had to learn more about heating, ventilation and air conditioning than I ever want to know.

Scott Henson: Right.

Amanda Marzullo: And calling half a dozen people, but by the time I was able to be more concrete I was able to realize that it was just a small part that I needed to have replaced instead of the entire unit, and I was able to be sort of an advocate for myself. And I have a feeling that as TDCJ was confronted with the actual realities of putting in these new cooling systems that they were able to be more concrete and get down to the practicalities of it instead of just dealing with abstract, large, scary numbers. So -

Scott Henson: Well that's a very generous assessment and I hope you're right about that. I want to point out that it was very convenient the timing of all of these different estimates. So at the time when they're telling the federal courts, "Oh, we can't do this. There's no way we can do it. It would be so expensive. It's not viable. It cost us 20 million dollars per unit to do this." And they're trying to give the court the maximum, a scary number, so they won't require them to do anything, and it turns out, like you said, to be a fifth of that. And I suppose it could be that just "Oh we hadn't really gotten an estimate yet," or something but -

Amanda Marzullo: No, I'm sure that it was based on some estimate, it's just also ... did I ever tell you that my father was an HVAC engineer, and that I spent a good chunk of my life dealing with this?

Scott Henson: You have not.

Amanda Marzullo: These are repressed memories. But I do, sadly, remember a fair amount of this. Where a lot of it is just which system, how are you going to put the vents in? These numbers do run the gamut. Part of the issue is that there was no, kind of as you've been eluding to, that there was no pressure on TDCJ at the time that it was giving its original figure to drive that number down.

Scott Henson: Right, right. And all the incentives were just to go ahead and give them the big number.

Amanda Marzullo: Yeah, exactly. I'm sure that they were based in reality, but that probably was some sort of high tech, high storage system.

Scott Henson: Right. Something really nice, like they use for the hogs.

Amanda Marzullo: We all know that the hogs need the air conditioning, otherwise they won't mate, right?

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

Amanda Marzullo: Gotta let them get it on.

Scott Henson: That's right. The hogs cannot cuddle if they're not ... all right.

Amanda Marzullo: Finally. Sticking with TDCJ, in their most recent budget request to the legislature, the agency said they need an extra 281 million dollars to meet minimum standards for prisoner health care. And the agency has identified more than 400 million in deferred maintenance costs at prisons state-wide. So, Scott, fill in the blank: Texas spending on prisons is ...

Scott Henson: I'm going to say Texas spending on prisons is simultaneously way too much and also too little. It's not a situation where ... we spend 7 billion per biennium on our prisons, and that's an amazing amount of money to throw at them. And yet, when you look at the proportion of prisoners we have nationally and compare that to our proportion of spending on prisons, it's quite low. We spend ... we have about 11 and a half percent of the prisoners nation-wide, and the Vera Institute found in a study earlier this year that we spend about 7.6 percent of all of the state prison spending on prisons.

And so we're not spending enough on healthcare. We're not spending enough on maintenance. We're not spending enough on food. We spend a ridiculously low amount per prisoner just to feed them, which probably contributes to the poor healthcare cost. And so we both underspend on prisons in the sense that again just to meet minimum healthcare standards we would need to spend 281 million dollars more. Just to repair the buildings another 400 million. So we're underspending. But we're also spending a lot more than the public is willing to spend. The public wants them to close more prisons and stop spending as much money. So both spend too much and too little.

Amanda Marzullo: That's a good one. I was going to say penny wise and pound foolish because I don't know, like 20 minutes into the podcast and I haven't said that yet.

Scott Henson: You haven't used that phrase yet. It is applicable here.

Amanda Marzullo: Yeah, at least it's applied correctly. But with deferred maintenance, when it comes to healthcare, it makes sense to have an investment in your prison infrastructure. If we're going to have a prison system that's as big as it is, we need to be spending to maintain it. Otherwise, the system's going to fall apart, and long-term wise, it's going to cost us more money. And I think you're right that the bigger issue here is sort of like the issue with the dentures. Are we really incarcerating people in a way that adds value? Does this make sense? Should we be doing this?

Scott Henson: When they get out are they going to be better people as a result? Are we going to have a safer society once the process of their punishment is finished?

Amanda Marzullo: Yeah. Are we even safer now while they're in there? Right? Would it make more sense to let people out while they still have some teeth?

Scott Henson: Right.

Amanda Marzullo: And able to get a job so that they can buy their own dentures later on down the road. These are questions that we really should be talking about and are probably over-due for.
Scott Henson: Speaking of Texas incarcerating more people than it should, let's take a moment to listen to one last tune, produced by Just Liberty to remind our supporters of the need to incarcerate fewer people and close more Texas prisons.

Now it's time for our rapid fire segment we call "The Last Hurrah". Mandy, are you ready?

Amanda Marzullo: I am ready. First up, in Waco, the county jail is chock full, and the county commissioner's court has hired an additional associate judge to process the case load. Is that the right approach, Scott?

Scott Henson: They're ignoring the bigger problem. 85% of defendants in the McLennan County Jail are sitting in jail pre-trial and could be released. So that's their big problem is they need bail reform. An extra judge is only going to fix his problem if he or she is authorized to issue more personal bonds, is the truth.

Amanda Marzullo: Amen.

Scott Henson: All right, staying in McLennan County, District Judge Ralph Strother announced that he would delay all the cases from the Twin Peaks Biker Massacre until D.A. Able Reyna is out office and his new successor is installed. Is that the right move?

Amanda Marzullo: Probably? I mean, what's amazing about this is one of the biggest acknowledgements I've ever seen from the bench about how political our criminal justice system is.

Scott Henson: Right. He's holding dozens of cases until after the election.

Amanda Marzullo: Yeah, exactly. Just saying "Well, we're not going to make any headway with this one, so we're just going to wait until a more reasonable person is in office."

According to recent FBI uniform crime reports, crime in Texas is way down, but the number of felony cases filed has only declined by 5% over the past decade, and the prisons are still full. Why is that number still so high?

Scott Henson: Basically, the drug war is propping up mass incarceration in Texas. So crime to victims have declined over the last decade, but the number of drug cases prosecuted is surged to the point that in 2017, they accounted for 1/3 of all felony cases, the highest percentage ever. So that's why Texas prisons are still full.

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

Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Services.

Scott Henson: You can subscribe to the podcast on iTunes, Google Play, or SoundCloud. We'll be back next month with another episode of the Reasonably Suspicious Podcast. Until then, keep fighting for criminal justice reform. It's the only way it's going to happen.

Transcribed by Rev.com. Edited lightly for grammar and clarity by Scott Henson.

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