I'm excited about this episode. It includes extended excerpts from a debate between Dallas District Attorney candidates which Just Liberty co-sponsored with a Dallas-area group called Evolve. They had a very interesting and sometimes contentious discussion. (I'll publish audio of the full, hour-and-a-half debate in a couple of days.)
Meanwhile, attorney Susanne Pringle provides the first, detailed update I've heard on the status of bail litigation in Texas in the wake of the 5th Circuit scaling back the Harris County injunction and a new injunction emerging in Dallas. Her organization, the Texas Fair Defense Project, is one of the groups representing plaintiffs in both the Harris and Dallas County litigation. If you care about this topic, give it a listen; no MSM source has yet tried to make sense of this clear-as-mud legal muddle.
Plus, another discussion of unreliable forensics, racial disparities in marijuana arrests, an effort to provide inmates ballot access in the Travis County Jail, and, of course, sex robots.
Here's this month's lineup:
Top Stories
- Houston's proposed robot-brothel ban
- Excerpts from the Dallas County District Attorneys debate between Republican incumbent Faith Johnson and Democratic challenger John Creuzot, hosted by Evolve and Just Liberty.
Interview
Susanne Pringle from the Texas Fair Defense Project explains the status of Texas bail litigation and what legislative policy makers should take away from it so far.
Suspicious Mysteries
Probing reasons for differences behind racial disparity between DWI and marijuana arrests in Houston.
Forensic Focus
The Last Hurrah
Transcript: October 2018 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by Scott Henson and Mandy Marzullo
Amanda Marzullo: Hi, this is Amanda Marzullo. In Houston officials want to prevent the creation of, quote, robot brothels within the city limits. But having sex with a machine doesn't violate any existing prostitution or sex trafficking laws. Scott, what would be the effect of criminalizing sex with robots?
Scott Henson: Banning robot sex would be a huge slap in the face to the American public. I mean we already have to deal with the fact that flying cars did not turn out to be a thing, so if we can't have sex with robots, then what's really the point of all this high tech futurism stuff?
Amanda Marzullo: That's what we're all aspiring to.
Scott Henson: I mean we were promised this by the SciFi Channel. Getting to have sex with robots was supposed to take all the sting out of them taking all of our jobs.
Amanda Marzullo: All I want to do is leave the room with this. It's really too much.
Scott Henson: We're only going to dig deeper into it, so suck it up, buttercup.
Amanda Marzullo: Oh God.
Scott Henson: Hello boys and girls, and welcome to the October 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.
Scott Henson: Coming up excerpts from a debate between Dallas County District Attorney candidates. Racial disparities in marijuana enforcement, a segment we call Forensic Focus, and an interview with an activist seeking ballot access for Texas jail inmates who are eligible to vote. So Mandy, what are you looking forward to on the podcast today?
Amanda Marzullo: Forensic Focus, that is always my favorite.
Scott Henson: I don't know, for me it's sex robots. It's got to be the sex robots.
Amanda Marzullo: I think that's my least favorite topic ever. So moving on, first up, our top story as we discussed in the opening, Houston Mayor, Sylvester Turner has announced he intends to try to stop a local business from opening in Houston to sell robotic sex dolls. The company's critics have dubbed it a robotic brothel, but it doesn't violate any Texas statutes. So Scott, is banning this sort of business a good idea?
Scott Henson: Banning this sort of business is kind of a ridiculous idea. First, there's no problem yet. This was raised to the mayor by an anti-sex trafficking organization, they did an online petition. I consider this sort of the Outrage Industrial Complex rearing it's ugly head.
Amanda Marzullo: I like that term. The Outrage Industrial Complex.
Scott Henson: The Outrage Ondustrial Complex.
Amanda Marzullo: Ladies and gentlemen.
Scott Henson: It really is, because there's a reason it doesn't violate any laws, it doesn't actually have any victims. I think there's a fear of sex, and there's a fear of technology in this country, and these sort of combine in this issue area to touch on everybody's phobias. I guess that's probably why you want to leave the room whenever they talk about it. It's like, "Oh my gosh, really?" But it's not me, it's Sylvester Turner. I didn't put this on the agenda Mandy.
Amanda Marzullo: Yeah, it's all his fault. I'm with you, I don't think that this should be criminalized, really. This is not a topic that the criminal justice system deals with well. I mean we've seen that in so many other contexts, that we criminalize far too many different types of behaviors I think in our society. I just don't know how to have a productive conversation about this issue.
Scott Henson: Right, well I think what you just said is kind of a big part of my point about where to start the conversation is that we don't really know how to manage it. So the example I would give as a comparison, as an analog, is the drone legislation that the Texas legislature passed. Everyone thought, "Oh no, the drones are going to be hovering over our house and peeking through our windows, and taking pictures of us having sex in our bedrooms, we must stop it." So they passed this legislation to create class C misdemeanors for anyone who takes photos with their drones without getting someone's permission. Well drone photography has turned into such an incredibly useful thing, it has all of these positive notes, all of the fear mongering about all the privacy concerns has really not panned out.
Very few people are hovering drones next to their neighbors' windows. Most people are taking long shots for their real estate listing, or whatever. There are just many, many very legitimate uses. In this same sense with the robots. I have to wonder if when an alternative to the services of sex trafficking organizations comes up that violates no laws, that harms no victims, that doesn't hurt any human being, and basically if you're violating anyone's rights it's the equivalent of disrespecting your Roomba, or whatever, then that seems to me like that might solve a few problems. Maybe I'm projecting too much, but ...
Amanda Marzullo: Yeah, I don't know, and the problem with this issue is that it's intertwined with gender roles, and issues of sex and inappropriateness that are so loaded in our culture right now.
Scott Henson: Yes, the whole debate is loaded.
Amanda Marzullo: Yeah, that it's hard to know when we're actually discussing issues that really are dealing with equity between men and women, and when we're talking about something else. So to me, it seems like something that might be appropriate for regulation, or some sort of administrative process, or some sort of public dialog about whether someone wants this in their backyard. Normally, I hate these NIMBY debates, because I think typically it leads to the oppression of minority groups, and particularly low income groups.
Scott Henson: And limitations on services to those groups very often.
Amanda Marzullo: Yeah, no seriously. But this might be the rare exception. I just don't know how to fix it, I don't even know how to participate in it, and that's why I [crosstalk 00:06:40]-
Scott Henson: I think it's easy to participate, you just buy a doll.
Amanda Marzullo: You know what I mean? I don't even know, if someone wants to have sex with a doll, I don't even know what value judgment to assign that.
Scott Henson: Exactly. It's all even stranger, the debate, because in Houston they have no zoning. So the way that most cities would address this in a regulatory fashion, they don't do that. If you're not going to zone your strip clubs to be away from the churches and schools, then you're sure as hell not going to zone your-
Amanda Marzullo: Robot doll sales.
Scott Henson: That's right, they're calling this a robot brothel, by the way, and that is what its critics were referring to it as. Its business owners are selling robots and because they had a try before you buy policy, is what got the brothel label. I said on the blog that robot sex dolls are probably pretty expensive, you might want to try before you buy. There's a lot of spouses of boat owners who probably wish they had taken similar precautions before they made those investments.
Amanda Marzullo: Yeah, again, it's one of those ... It's ...
Scott Henson: You know I chose this topic just to make you uncomfortable.
Amanda Marzullo: Yeah, no, and you have succeeded wonderfully.
Scott Henson: In Dallas the district attorneys race on the November ballot has emerged as one of the highest profile prosecutor races in the country. On October 18th Just Liberty co-sponsored a debate between the candidates, along with the Dallas area group called Evolve. Both Republican incumbent Faith Johnson and Democratic challenger John Creuzot participated. The candidates spent most of the evening debating who was more committed to reform. Over the course of the debate four key issues emerged as priorities in the race. Innocence initiatives, reducing mass incarceration, bail reform, and holding police accountable when they shoot unarmed civilians or engage in misconduct. I'll publish the full audio of the event on my blog, Grits for Breakfast, in a couple of days.
In this segment let's share some highlights of the debate with our listeners. Faith Johnson began her opening remarks by describing her efforts to bolster the conviction integrity unit in her office, which is charged with seeking out and over-turning false convictions.
Faith Johnson: I also have expanded the conviction integrity unit. That unit was only one prosecutor, one support staff, one investigator. I have increased that unit. I also now have increased it more, because we have a federal grant. That unit reports directly to me. I say to my conviction integrity unit, "I have a mandate, I want to free the innocent. I don't believe that one person who is innocent should spend one second in jail."
Scott Henson: Judge Creuzot began by decrying mass incarceration.
John Creuzot: We know that mass incarceration is a terrible problem in America, it's a terrible problem in Texas, and it's a terrible problem in Dallas county, don't we? Can we agree on that?
Audience: Yes.
John Creuzot: Can we agree that we want to have our next district attorney who understands that mass incarceration is a terrible problem in our communities, yes or no?
Audience: Yes.
Scott Henson: Building on that theme, Judge Creuzot described his record operating a drug court in Dallas County, which is one of the first such specialty courts in the entire state.
John Creuzot: In 1998 we started DIVERT Court, low level drug offenders felony cases, people who would otherwise have a criminal record, put them through treatment, dismissed their case, got it expunged. Did a study on it, 68% reduction in rearrest. What precedes an arrest? A crime. So we're talking about reducing crime. Another study done on that, cost benefit analysis. For every dollar spent, there was $9.34 on avoided criminal justice costs. We didn't stop there. We started looking at the people who went through the system again and again and again, institutionalized individuals, our cousins, our nieces, our brothers, our sisters, our neighbors. We started a program for them similar to the Divert Court program. We put them in treatment and we monitored them. We watched them closely, and we loved them. Something that they have the lost the ability to do to themselves because they've been locked up so many times. What we showed then was a 31% reduction in arrest. We showed a 67% reduction in probation revocations.
Scott Henson: In response Faith Johnson described her own efforts to create diversion programs.
Faith Johnson: That's why two of all diversion programs are DA driven. Our mental health program, which is set, and also our homeless diversion program. That's a program that I started just this year, because when you look at homelessness 70% of the people in this country who are just one paycheck away from being homeless. If you miss that paycheck, you're going to be homeless. Believe it or not, this city, the City of Dallas and the county, we have more homeless people than a lot of counties throughout the state of Texas. So we have to look at mental illness, homelessness. We have to look at drug addiction. When you look at what happened years ago a lot of the diversion programs were just looking at the drug addiction, but now we've got to go a little deeper. We've got to look at the root of this. When you look at the root of something then you can really come up with an answer and a solution to the problem.
So that's why the set program, a mental health program is so critical, because what we're learning is that so many offenses that take place in this county, those defendants have mental illness and for years and years and years we've never addressed it. That's why the mental health diversion program is so critical. That's why our homeless diversion program is so important. That's why our aim program is so important. All three of those programs are DA driven, and it's for the purpose of making certain that we don't throw people away when we really need to serve them, when we really need to help them, and that's what we're doing right now at the Dallas County District Attorneys Office.
Scott Henson: Judge Creuzot however criticized the incumbent for needlessly jailing homeless people for offenses like criminal trespass.
John Creuzot: But there's another issue that we need to talk about, and that is why do we even incarcerate the homeless in the first place? Simple criminal trespass gets people caught up in jail, and the program she's talking about the first time you do anything wrong in the homeless program, this is from the judge to my ears, okay? You get a talking to. The second time you go to jail for 10 days. Now you tell me what good does that do to put a homeless person in jail for 10 days? Absolutely nothing. When I'm your district attorney we're going to take a look at those cases, and if it's simple homelessness, and if it's simple criminal trespass and it doesn't threaten community safety, we're going to put those people merely in services and not even expose them to the possibility of going to jail.
Scott Henson: When questioned about how the district attorney should handle shootings of unarmed civilians by police officers Faith Johnson described her decision-making process surrounding the Balch Springs police officer Roy Oliver who shot 15-year-old Jordan Edwards in a fleeing vehicle and was recently convicted of murder.
Faith Johnson: In fact, my top administrators, when we tried the Roy Oliver case and we started at the beginning of that case, that was the very first time in a long, long time, that a police officer was actually arrested. My prosecutors told me, "No, we don't do it that way, we wait for it to go to the grand jury which could take a year or two years." I said, "No, we're going to treat that officer just like we would treat a regular citizen." We prosecuted Roy Oliver, we got a guilty verdict, we got 15 years in prison. I know some people would want more, but we were there and we tried it. I was a part of that trial. The country is rejoicing all over for that conviction.
Scott Henson: Judge Creuzot answered the same question by endorsing an independent civilian review board.
John Creuzot: I support an independent police review board with civilian power. One, because this community deserves it. We're not just talking about Roy Oliver and that case, we have almost 30 municipalities in this county. I, as a practicing lawyer have reported misconduct by police officers for many municipalities in this community. You know what, nothing ever happens, because they use the independent police review board. How about Dallas police officers telling somebody who to pick out in a photo lineup, when in fact they're supposed to give the photo lineup to a second officer who's supposed to do it. That was my case. You know what happens to that officer, and I went through the public integrity unit to file a complaint, absolutely nothing. He's still there doing the same thing.
I have a police officer who hid the video tape confession from another jurisdiction, not Dallas, but from another jurisdiction, and played as though it didn't exist. When I threatened to subpoena the chief to get down there, the chief got somebody to go find it, and what they did was they didn't mark it, so it went off in an unmarked file, as opposed to a marked file. Guess what happened to him? He was not fired. Okay? Do we need an independent police review board in this community for all of our jurisdictions? You bet. This is bigger than just Roy Oliver and one case. This is a problem that exists in every municipality. Every municipality should have access to that, whether it's one big police review board, or one that's independent from each and every municipality. Either way I support the concept. Thank you.
Scott Henson: On questions of mass incarceration Faith Johnson declared that her commitment to increasing diversity in her office had resulted in fewer prison sentences.
Faith Johnson: First of all I want to say that I am totally against mass incarceration. When you look at how you address it, you really start internally. One of the things I've done is brought diversity to the DA's office. When you bring diversity, and you bring folks who are thinking like you, and who's committed to making certain that equal justice is done to everybody, for everybody, that's going to impact the consequences and the results of what's going to happen in those courts. When you look at what we've done from 2017, from 2016, we have reduced the number of people going to prison. From 2018 to 2017 we're almost doubling number of people who are going to prison. These are the stats. So how do you do that? Why is that happening? It's happening because of the people we're hiring, the training we're doing, and the commitment to making certain that there's equal justice and the right thing is done.
Then we're also doing it by our diversion program. We're looking at alternatives, as opposed to incarcerating people. The reason why we have that alternative is because of our commitment to all of the different diversion programs that we have, and the programs that we've added. So mass incarceration, you look at the people you hire, the people you train. You look at the alternatives that you're offering defendants, and you look at the fact that when you have a methodology, you have a mission, you've got a commitment to making certain that justice is equal for everybody. Then you're going to constantly reduce the number of people going to prison, and make certain that only the right people go there, are dangerous people. We don't want to say we don't want anybody to go to prison. We want to make sure that we put the right people in prison, and those are our most dangerous people is who you want to go to prison.
Scott Henson: Judge Creuzot responded by citing James Forman's new book, Looking Up Our Own, to say diversity in and of itself was no substitute for policy making. He cited his own participation in Texas 2007 probation reforms to demonstrate his own commitment to reduce incarceration, but the debate really heated up when the two discussed the ongoing bail reform lawsuit facing the county. Here's how Creuzot framed the question.
John Creuzot: We have a broken bail bond system, we have a lawsuit that was filed here, first in Harris County, and then up in Dallas County in regards to that. The district attorney played a role in how that case went. Let me read something to you, this is taken off of a federal website, this is in fact the answer that your district attorney gave to the bail bond lawsuit. I'm going to read the title of it, and it says, "Dallas County's motion to dismiss and brief in support." I'm not going to go through all 28 pages of the other stuff, but I'm just going to get to the end of it. The last sentence paragraph says, "Wherefore premises considered, Dallas County praised this court, will grant this motion and dismiss plaintiff's claims against us with prejudice."
What does that mean? Don't come back, go away, see you later. And that plaintiffs take nothing from this suit, and that prospective injunctive release against him be denied in all respects. That it recover its costs and any other relieves of which it might be justly entitled." Signed Faith Johnson, District Attorney, Dallas County, Texas. Okay? So what would I have done had I been your district attorney at that time? I would have agreed that the current systems I unconstitutional, and illegal, and that the best way to determine if somebody is going to be a risk to not show up is to do a risk assessment, which the United States is in the process of doing. We're not quite done, bail reform is a relatively new concept around the United States, and there's research going on to develop tools and instruments, and Houston is now doing that. We now have a court order.
That was ignored, by the way, by the judge, and the judge granted injunctive relief against Dallas County and gave Dallas County the plan. But I would not have done that. I'm just telling you right now. Keeping somebody in jail who can show up to court, merely because they don't have money, is unconstitutional and it is immoral.
Scott Henson: Faith Johnson responded to say she was only representing what the county's judges wanted, not her own positions.
Faith Johnson: If you know this lawsuit that my opponent just made a reference to, it's styled Shannon Davies versus Dallas County. This is a lawsuit against Dallas County and the judges. One thing people don't know is that the Dallas County District Attorney's office ... I'm a criminal district attorney. So I handle all the criminal cases and the civil cases. Meaning that when the Commissioner's Court if sued, we have to represent them. Guess what, we have to listen to our client in terms of how the case is ultimately going to be decided.
Scott Henson: But Judge Creuzot would have none of it, he declared he would have admitted the system was unconstitutional and not have filed a motion to dismiss the suit.
John Creuzot: Anybody in here a lawyer? You're a lawyer? Okay. Let me tell you about the rules that govern lawyers. Your client can't tell you to do something that's unconstitutional or illegal, okay? You can throw it back on your client all you want. The bail bond system was unconstitutional, and is unconstitutional, and is illegal and immoral. You can blame it on the commissioners all you want, but when you sign your name to a piece of paper, that's your name, not their name. Signing it on behalf of each and every one of them to dismiss the case. Hey, it's right there. You can come up with who said what and who did what, but if the judge had followed this, guess what? We'd still be in the status quo with the same old thing going on. As a lawyer, hear me again please, your client cannot order you to do something that is unconstitutional or illegal.
You have to exercise your independent judgment, everybody knows that, if you're not a lawyer you know that to be true, right? I'm telling you right now, this would not have been the answer on behalf of the judges, on Dallas County, or anything any other entity had I been the district attorney. All this filing paperwork, and this that, and the other, this piece of paper never would have existed, and we would have gotten ahead of this, instead of having to fight it, and take as long as we did to get to the point where we are, had I been your district attorney. I promise you, we're going to get bail reform, and we're going to do it the right way when I'm the district attorney.
Scott Henson: Toward the end of the event questioners pivoted back to police shootings and their impact on community trust.
Moderator: So community trust between 2005 and April 2017 80 officers have been arrested on murder or manslaughter charges for on duty shootings. During that 12 year span 35% were convicted, while the rest were pending or not convicted. According to the work by Philip Stinson, an associate professor of criminal justice at Bowling Green State University in Ohio. How will you work to rebuild the trust of the community back into the judicial system when so often officers are not even indicted, let alone found guilty of wrongful death?
Scott Henson: Judge Creuzot took the opportunity to discuss the recent shooting of Botham Jean by Dallas police officer Amber Guyger in an incident which drew national headlines.
John Creuzot: So one of the things of building trust we've already brought up as a citizens review board to review the actions of police. The other thing is thank god for cell phones and security cameras, isn't it? How about that? A lot of that stuff, we're talking about those people who we charged wouldn't have been charged with anything. Do you remember the police officer who shot the man in the back as he was running away, and then took out a gun and stuck it down there next to him? Thank god somebody had a cell phone. So what we need to do is what we should do, and that is number one, don't treat any police officer any differently. If Botham Jean had walked into her apartment and same situation, I guarantee you he wouldn't have walked away, he'd have been put in cuffs and taken where? To the police station. A camera would have been put on him, he would have been read his rights. He wouldn't have turned himself into Kaufman County.
So when we talk about how we treat ... That was a police issue. The police made that decision to do that. But I've made it perfectly clear by posting and trying to explain to the community what this case is about. I don't know how it's going to end up, it has to go to the grand jury, and I trust that it'll be fairly done. It's not a manslaughter case, and I've gone through that. If you go to my Facebook page you can read it, it more fits murder than it does manslaughter by a large amount, okay? Not even close. So when we talk about police accountability there's technology that's helping us find out and catch and then we've got to be vigorously committed to prosecuting those cases to the full extent of the law, when we can prove them beyond a reasonable doubt.
That's the only way that we're going to get to this. Unfortunately we're finding out day-by-day and month-by-month that there are some, not many thank god, but some police officers who just won't follow the laws. One thing we haven't talked about recently that we did 30 years ago is alternative uses of force instead of shooting somebody. We need to retrain our officers, I think, and have a real community commitment to doing that, so that the gun is not the first option to deal with somebody.
Scott Henson: Faith Johnson answered the question by revisiting her officer's prosecution of the Roy Oliver case.
Faith Johnson: We did something that has not happened in 43 years when we tried the Roy Oliver case. I took that case and when you look at the position that the Sheriffs Department was taking, and even my own staff said to me, "We don't do it that way." What they were accustomed to, Miss Davies, thank you for being here by the way, I appreciate you ... Elizabeth Frizell's mama. What they were accustomed to is always taking the case to the grand jury, never arresting an officer. Allowing that officer to walk on the street. While if Billy Joe had done the same thing, he would have been arrested right away, in jail, pending trial. I took the position if you do it to Billy Joe, you got to do it to Roy Oliver. I talked to the Sheriff Department, he was finally arrested, we prosecuted him, he was found guilty. We got a 15-year sentence. People all over the world, not just the state of Texas and county, all over the world, were rejoicing.
You know why? Because it didn't happen in California. They couldn't get a conviction in New York, they couldn't get one in Tulsa, Oklahoma, we got it in Texas because my commitment is that I would not tolerate bad cops. Now I support our police, I love our police, it's the bad ones that I won't tolerate, and that's how we are going to be able to get trust in our community back into law enforcement, because they got to know the same thing. If I do that, then you'll do the same thing to the guy who wears the blue uniform, that you do to the guy that doesn't wear it. That's how we're going to restore trust in this whole community, and our whole system. That's what I'm doing. Not based on what I promise you, this is what I've done. One thing you all don't know, we have prosecuted more police officers than any county in my tenure since 2017, than any county in the United States.
Scott Henson: It's surely remarkable that two district attorney candidates in Texas's second largest city spent most of their hour and a half debate competing over who would be the most likely to deliver reform. That's a stark shift in terms of debate in Texas prosecutor elections from just a couple of decades ago, and a very welcome change. In a couple of days I'll publish the full debate between Faith Johnson and John Creuzot on my blog, Grits for Breakfast. So if you want to hear more from these two candidates, look for that soon.
Amanda Marzullo: Bail reform has been a hot topic for the last several years in Texas. The litigation results in Houston and Dallas, and a ruling by the Fifth Circuit limiting the Harris County order have complicated the question of exactly what is required for Texas County bail schemes to be deemed constitutional. Recently Scott sat down with Susanne Pringle, Legal Director at the Texas Fair Defense Project, for a front lines explanation of where this issue is at in Texas courts, and the implications for bail reform in 2019.
Scott Henson: Litigation over bail reform and pre-trial detention in Texas of late has had the feel of one of those shell games favored by street hustlers, in which you try to identify which of three cups the ball is under. It's hard to know where to watch, and nearly impossible to keep one's eye on the target. That's especially true in Harris County where the county has implemented certain reforms, while ignoring others. The Fifth Circuit has issued two conflicting rulings, and the full federal appellate court is yet to finally rule. I asked Susanne Pringle to explain the status of Harris County bail litigation, and describe for us when they might reach some conclusion.
Susanne Pringle: Judge Rosenthal issued the injunction which included release after 24 hours if you have been determined able to be released on money bond, but you can't afford it. Released within 24 hours if you haven't had a hearing yet. Required individualized bail determinations, et cetera. The Fifth Circuit on appeal of that particular injunction said generally this okay, 48 hours is more appropriate than 24, and I want you to go back to the drawing board on a couple of other things. So Judge Rosenthal issued a new injunction that was similar to her original injunction that did include a 48-hour instead of a 24-hour window, and on what's called, on an emergency, motion to stay, which is not a full appeal of the injunction. But an emergency motion to stay, a three-member panel of the Fifth Circuit said, "Wait a minute, we're going to stay, which means keep from going into effect, the provisions of the injunction that apply to the first 48 hours."
So that three-person panel on the basis of an emergency motion to stay said for now, everything that required release, if you haven't been seen within 48 hours, or release if you've been determined that you could be released on a certain amount of money, but it's been determined that you can't afford it. Those two, which were the two biggest provisions, in terms of getting people out in Harris County, that three-person panel said, "We are going to stay those provisions of the injunction pending an appeal on the injunction." So at this point we are waiting for the Fifth Circuit to actually rule on the appeal of those three provisions. They've been stayed, they're not in place for now, but they haven't actually been ruled on in a way that's appealable. Does that make sense?
Scott Henson: Well no wonder I was confused.
Susanne Pringle: Yes.
Scott Henson: Oh my gosh. Okay, well that is-
Susanne Pringle: Lots of legal complications, but it is bad in that it means that there are ... For the year after the injunction that Judge Rosenthal originally ordered, people were getting released in numbers like 125 to 150 a day, who had been determined that they could be released on money bail, but couldn't afford it. Those folks were getting released. Folks that weren't getting seen in the allotted period of time, which was 24 hours at the time, those folks were getting released. So none of those folks are getting released anymore. So that is bad, from the perspective of bail advocates who thought that folks should be released if they couldn't afford bail, but were determined for release.
Scott Henson: Now Harris County did make some internal changes in response to all this, are none of those still causing at least some of those releases to happen?
Susanne Pringle: Some folks are ... I think the number of personal bonds being issued has increased in Harris County, people are getting lawyers at their hearing, they're getting public defenders.
Scott Henson: That's a big deal.
Susanne Pringle: That's a big deal. That is actually catching on. I mean part of what we're getting at later in this conversation is what's happening across the state, but that is starting to catch on around the state, and I think you're going to see more and more counties adopting that model of getting people appointed counsel or public defenders at that initial hearing. That leads to lower bond amounts, which people are more likely to be able to make. That leads to more personal bonds, because there is somebody at the hearing who can advocate for that. So there are certainly more people being released than there were before the original injunction went into place, but there are fewer people being released now than there were under the initial injunction.
Scott Henson: Got you.
Susanne Pringle: I do want to go back to the ... I said this is bad, and there are bad things about it. But I think it is important to note that we're still waiting for the Fifth Circuit to rule on the question in a final way. This is an emergency motion to stay, I realize that's sort of an insider sounding term, but it is not the final decision of the Fifth Circuit on this issue.
Scott Henson: Got you.
Susanne Pringle: So even though it is bad right now, we can't take it as the last word, because it's not. Hopefully we'll have the briefing in the Fifth Circuit is all coming out in the next month or so, and then we'll get an argument date, and hopefully we'll have more of a sense in the coming months of what the Fifth Circuit is actually going to say about those provisions of the injunction, and hopefully it'll be different.
Scott Henson: That actually clarifies a lot, thank you so much. I have to say, I have been almost just overwhelmed with the complexity of the status of what all this meant. Speaking of which, and actually this follows directly along with your comments there about getting lawyers at hearings, to me that takes us to Dallas.
Susanne Pringle: Yes.
Scott Henson: Dallas also has now had, is it an injunction?
Susanne Pringle: Yes, a preliminary injunction.
Scott Henson: All right, tell us the status of what's going on in Dallas. I know the county has ponied up for 24 new employees to start to have lawyers at the bail hearings, give us an update there, and explain to me how this fits in, because they're in the Fifth Circuit too with everything else that's going on.
Susanne Pringle: Yeah, well so there are a couple of ways that Dallas County is different than Harris County. One is that felonies are included, not just misdemeanors. So the actual injunction that has been issued applies to a much larger number of people in Dallas, than it did in Harris County, because felonies are included. It is also different in that the injunction that Judge Godbey issued in Dallas does not apply to that first 48-hour period of time. It much more closely resembles what the Fifth Circuit suggested would be an injunction that they would endorse, which means it requires individualized bail determinations. It requires a consideration of ability to pay. It requires a consideration of a personal bond, or personal recognizance release. It requires notice to defendants about what's going to be an issue at that hearing. But it does not require any of the release pieces that we talked about that Judge Rosenthal's original injunction required.
So there are more people that are getting those individualized bail hearings, that will be getting those individualized bail hearings. The injunction has actually not gone into play yet, it was delayed for 30 days upon Judge Godbey's ruling. It maybe delayed longer, depending upon how long it takes to get things into place, but it will be applying to a much broader number of people. Now Dallas County has said publicly, and the Commissioners Court has voted publicly, that they are going to hire, as she said, up to 24 new employees. They have a public defender's office there, which like Harris County makes them in a position to more quickly, more easily put in place lawyers at bail hearings.
Scott Henson: There's a structure to [crosstalk 00:39:32].
Susanne Pringle: Exactly, there's already a structure, so they're in the process of hiring those employees. I understand that they're trying to get them in place quickly as they can, that it might take a little bit. It might take a couple of months, but that they are committed as a county to putting those positions in place. Then the other piece of the case that is different than Harris County is that there was also a claim about open access to bail hearings, where the plaintiffs were actually magistrations in Texas, which are organizing groups of folks who are often impacted by the criminal justice system. So another piece of what's happening in Dallas County is that they're making an effort to at least make those magistrations accessible by video, if not in person.
Scott Henson: Got you. I spoke to a reporter who, after much effort, finally got in to see some of those.
Susanne Pringle: Great.
Scott Henson: She said it was done in almost a broom closet type room, such a small setting, that it was almost like it was intentional, no, it would just be impossible to have someone there.
Susanne Pringle: I think that's true in a lot of counties, especially because they typically take place in the jail. For example, in Travis County they happen in a similarly small broom closet space, and they would rather people not be there.
Scott Henson: Got you. All right, so we've got litigation in Harris County, we've got litigation in Dallas County, and-
Susanne Pringle: And there's also a case in Galveston County-
Scott Henson: In Galveston.
Susanne Pringle: ... that is pending that we are not on. I'm not a lawyer on that, so I can't speak exclusively about that. I believe that they are still in the ... I don't think they have an injunction in place yet in Galveston County.
Scott Henson: But then at the same time, we see some counties trying to do this in other ways. Corpus Christi created its own risk assessment, instead of using the state's risk assessment. Is this a moment where it would be beneficial for the legislature to step in and create some basic standardized, state-wide rules? It strikes me, it seems like we're either going to have lawsuits, just county by county, or counties are just going to do whatever they think of themselves. Then we sue and see what happens. Or you could just have a new structure that says no, everyone has to have individualized bail hearings. Everyone has to use a risk assessment. Are we at a point yet where we can tell what the legislature should do? Or is it all still to unformed and uncertain?
Susanne Pringle: I think that there are a few things that we know that the legislature could do, and I think counties would appreciate the guidance. There are certainly lots of counties that are trying to do the right thing, and aren't sure exactly what that is, and could use some systemic guidance. So the legislature could make clear that everybody is supposed to get an individualized bail hearing, and that that bail hearing is supposed to take into account ability to pay. That that ability to pay should be a key point in decision making about what bond they're going to set for folks. The legislature could required a validated risk assessment tool be used, and if the legislature is going to do that, I think they also want to dictate that any sort of risk assessment tool is a tool for the judge to figure out what conditions this person could need in order to come back to court, and in order to keep the community safe.
I think the danger of the risk assessment tool is that there are some counties that want to use it as a release or not release decision. All the experts say that if you're going to use a risk assessment tool, and you make sure it's validated and it doesn't have an impact, it's not racist or classist, then once you're using that tool you're using it to decide what can I do to support this person to make sure that they get back in court? Is it a text reminder? Is it a bus pass? Is it that they need an electronic monitoring? Is it that they need some other sort of check in? What do they need to be most likely to come back into court? As opposed to using that risk assessment as a 'we're keeping you, we're not keeping you' decision making tool.
The legislature could absolutely mandate the use of a validated risk assessment tool, along with the presumption of release and the use of the risk assessment tool to determine the best possible conditions upon release. The legislature could absolutely mandate and should mandate that there's a presumption of release on personal bond, and with the least restrictive conditions. Those are all things that the legislature could do right now that would give counties a lot of guidance in what they could be doing right now.
Scott Henson: Next up a segment we call Suspicious Mysteries, in which we explore questions to which there are no definitive answers. This time let's delve into the question of racial disparities in the justice system. In Harris County black folks are arrested for DWI at far lower rates than their proportion in the population. 14% of DWI arrests in Harris County are of African-Americans who make up 19% of the county population. But black folks count for a massive proportion of marijuana arrests. At Houston PD in particular, nearly 60% of people arrested for pot were black, compared to just 25% of the city's population. So Mandy, what explains the big racial disparity in marijuana arrests, but none for DWI?
Amanda Marzullo: Sorry, I'm laughing because this is such a big question. That there really just is no answer to it. I think the big question that leaps out at me is what is the pretext that led to these arrests? Was there a call for service that led to an eventual arrest for this second part, like you know, an offense when it comes to marijuana use? Or if there was a stop, what was the reason for it? These two crimes deal with very different kinds of enforcement, and there can be regional disparities, there could be issues with individual officer judgment, but it's very hard to tell just at the macro level what's happening without more detail.
Scott Henson: Well I don't know, I think we can make some reasonable inferences. I think that when you talk about how do people get to these cases, I think that's really the issue that probably explains it. I think most DWI cases are probably based on much more solid probable cause than a lot of the pot cases. So for example, most DWI cases are because a cop sees someone swerving in the lanes, or they've pulled someone over for another traffic violation, and they smell alcohol on their breath. I think that the array of circumstances under which people are arrested for marijuana is just much, much more broad. It's more just the police happened to be in your business, and run across pot.
Amanda Marzullo: I think you're probably right. I just hesitate because this is such a loaded topic, that I think from our perspective we need to have a lot of information before we're drawing inferences, because it's really had to tell what's happening, and-
Scott Henson: Well that's fair, but I do also think that the level of disparity is massive. You hear people say all the time the criminal justice system is racist, it's racist. Well the fact is that when you really dig into the numbers pockets of it are racist, there's places where all of a sudden you hit this part of the system, and there's a massive racial disparity at this turning point. So for example, who stays in jail and who gets bailed out. So this marijuana enforcement piece I think looks to me like one of these areas in the justice system where all of a sudden, boom, we have a massive disparity. Greg Abbott had suggested reducing penalties for marijuana enforcement. When he made that pitch, his pitch was if we reduce everything to a class C we're going to save money on jail costs, and we're not going to have to pay for everyone's lawyers if they're indigent. We're going to save all this police officer time so they'll stay on the street to be able to enforce other things.
Amanda Marzullo: Yeah.
Scott Henson: But you can also look at that policy as almost explicitly just a racial justice question. I mean if you're looking in the system and trying to identify where are the biggest disparities, and where can we reduce enforcement to make it less disparate, this is one of those big areas where, to me, you can say, "Hey, nobody really thinks the marijuana offenders are that big a threat, we can reduce a big amount of disparity in one chunk just be reducing those penalties. Or in other states they've legalized it.
Amanda Marzullo: There are a lot of different decisions that are made on the part of the arresting officer, on the part of the prosecutor, defense attorney and how much time they spend on the case, and the judge ... Legal followers have referred to this as cascading racism. I think it's true, that they all compile to very different outcomes in the case. So I find it's very hard to point to one pocket, but I think we definitely can all identify some of these low-level possession drug offenses as being not worth our time and expense in prosecuting. It just does more harm than good.
Next is a segment we call Forensic Focus. Honing in on problems with flawed forensics used in Texas courts.
The Houston Chronicle recently published a feature touting the successes of ATF agents using a ballistic database called the National Integrated Ballistics Information Network to solve crimes. But on your blog, Grits for Breakfast, you criticize the paper for over-stating the effectiveness of ballistics matching. Calling on journalists to avoid terms like 'match' or claiming that ballistic markings are unique. Why is this a concern?
Scott Henson: Well this is one of those issues that goes back to the National Academy of Sciences report from 2009 that you and I have now discussed several times. This was a landmark publication by the most preeminent scientific organization in the United States. Analyzing for the very first time all of the areas of so-called forensic science that have been used, in many cases, for more than 100 years, but had never been validated by science. Really in many cases had no scientific basis. So some of the forensics that have the most problems, where there are the most serious shortcomings, are comparison-based forensics. Ballistics is one of those. So these are things like everything from ballistics and tool marks, to fingerprints, to tire tracks, to anything that you're comparing one-to-one. Hair and fiber, hair before they did DNA, bit marks, all of these comparison-based forensics where someone is basically looking at it through a microscope, and saying, "Okay, these look similar."
Amanda Marzullo: Yeah.
Scott Henson: But it's not actual
ly a scientific finding. The Chronicle used these terms like 'match' and-
Amanda Marzullo: Unique.
Scott Henson: Yes, and this was unique information. We absolutely cannot say those things, there's no scientific basis for that at all. The National Academy of Sciences report, and we're going to the glasses here for the small print, declared that examiners who are making these calls are making a, quote, subjective decision based on unarticulated standards and no statistical information about error rate. So it's not a computer that's matching these things, like it might be on a CSI TV show, it's some person looking at them and saying, "These look similar." Based on what standards? There are no standards, literally it's just a guy or a gal saying these look similar. How similar? To what degree of certainty? What's the error rate? We do not know, no one knows.
So when the cops say, "We've got a match and we've made an arrest." There's less certainty there than perhaps they're portraying. Now is it possible or even likely that they got the right person? Certainly, but we have to leave some space for the uncertainty of the scientific method, or the lack of one.
Amanda Marzullo: Yeah, no I think you're right. There have been a number of studies out there that have talked about how jurors weigh the evidence that are in front of them, and that having someone in a lab coat come in and saying, "These two things are the same, and I've looked at it." Is pretty powerful information, but really at the end of the day, it's subjective assessment.
Scott Henson: Well especially when you're referring to the science. It's the lab coat, right? It's the forensic science, we're from the crime lab, and we're doing this with a scientific basis. It's not really that way at all on these comparison-based forensics.
Next, the Texas Court of Criminal Appeals will consider the case of Rigoberto Avila, an El Paso man convicted of murdering an infant based on what courts now acknowledge was, quote, "False and misleading scientific evidence." Mr Avila is on death row and has already faced four serious execution dates, but if this scientific testimony was wrong, it bolsters his innocence claims which he has stuck to from the beginning. Mandy, what do people need to know about this case?
Amanda Marzullo: There are a few things, but I think a few of them are just how much error there can be in the criminal justice system, and how hard it is to correct it, and the importance of meaningful judicial review. So Mr Avila has been on the row for 17 years. He had four very serious execution dates, he came very close to being executed, but the new evidence is really showing that there is no crime. This was a tragedy without a villain.
Scott Henson: Now false and misleading scientific evidence is about as strong as you could get from a judge criticizing forensic testimony.
Amanda Marzullo: Exactly. So this just shows that we need to have a lot of skepticism about our criminal justice system. On top of that, this is a case where the trial court, when confronted with a [inaudible] writ application analyzed the evidence independently and wrote their own findings of fact and conclusions of law. That type of judicial scrutiny is key to correcting problems in the system.
Scott Henson: Didn't just rely on what the prosecutor or the defense attorneys gave him, but the judge actually went through and made her own judgments and called her own shots, and wrote her own prose. That's unbelievably rare in these cases, and it shouldn't be, but it is.
Amanda Marzullo: It's awful, but thank god that it happened.
Scott Henson: Right, and it's sad that we can only seemingly get at these bad forensic issues when some judge or some prosecutor somewhere goes way above and beyond. It doesn't happen through just the typical run of the mill functioning of the justice system. Somebody has to do something really extraordinary for some of these forensic cases to really make.
Amanda Marzullo: Yeah, definitely.
Moving on, election season is upon us, and voters everywhere are amping up for what maybe one of the highest turnout midterms ever. But thousands of inmates incarcerated in county jails are technically eligible to vote. They're legally innocent until proven guilty, after all. Most people incarcerated in county jails are there pre-trial. But sheriffs who run the jails frequently throw up barriers to allowing that to happen. Scott sat down with Austin activist Hope Doty who's been working to secure voting access for eligible voters in Travis County's jail. Let's hear what she has to say.
Scott Henson: I'm here today with Hope Doty who has spent most of 2018 trying to get ballot access for Travis County jail inmates. Hope thank you for talking with me today.
Hope Doty: Thank you for having me Scott, appreciate it.
Scott Henson: All right, so this process started earlier in the year, it's been going on quite a while, and obviously with the election coming up, you've just about reached the denouemnt of your efforts. So tell me about your story, your journey here. Tell me why you started to try and get ballots into the jail, and what that was like.
Hope Doty: All right, so first of all we started about March of this year, and I was working with the Austin Justice Coalition, who shamelessly stole the idea from the Houston Justice Coalition, who had started registering folks at their jail. We worked with the Travis County Sheriff's Office and the Travis County Clerk to propose getting some voter registration volunteers into the jail. So we were able to get folks vetted over their background check process, which is a few weeks. Then we got quite a number of folks volunteered to ... They had to of course become VRs, volunteer deputy registrars, through the Travis County Tax Office. As we got a number of volunteers we did our first voter registration at the jail in March. We've done it every between five and six weeks, and so far, well by the end of the session when the deadline hit in early October, we had registered over 400 folks from the Travis County jail. So we're pretty proud of that.
Scott Henson: So the jail population is pretty transient for a registration drive. First, you've got folks who are often just there for a very short period of time, pre-trial. You have some that are staying longer, and I imagine those are the folks who you're more dealing with when you're going in over time leading up to an election. Perhaps I'm wrong. But we were also discussing before we started how especially in the state capital, in Austin, there can be folks from all over the state who might be in the jail. So what's that population ... Of course, you can't vote if you have a felony and are still on parole.
Hope Doty: True, yeah.
Scott Henson: Or on paper in some way. So talk to me about the population that you were registering, and 400 compared to say 2,500 people in the jail may not sound like a lot, but the subset that may be eligible is probably a much bigger number, right?
Hope Doty: Yeah, so what it turned out to be [inaudible 00:59:18] I got my statistics correct here, approximately 50 to 65% of the jail population at any given time are eligible to register to vote. Yeah, we do have a lot of folks that sit there waiting for trial, we have folks on misdemeanor charges and of course some folks that are awaiting a felony charge, a felony trial. But anybody who has not been convicted of a felony yet, in other words, or if they've been convicted of a felony and they are what is considered off-paper-
Scott Henson: Yeah, their parole or probation has ended.
Hope Doty: Parole, probation, any punishment and incarceration. Once that's completed, even if they're sitting in jail on a misdemeanor, as long as that felony conviction is off paper, they are eligible to register and vote. That first step is a lot of education for both the folks who work in the jail, and also for the volunteers. Then the biggest piece is making sure that the inmates understand that.
Scott Henson: All right. Well what advice would you give to someone in another county who wanted to try and do this there?
Hope Doty: Oh boy, I would say go for it. My philosophy with this whole process has been the worst thing they can tell me is no. So start there, start with your county clerk, start with your county-
Scott Henson: It's probably happened a few times though.
Hope Doty: Just a few. But I'm kind of a pit bull, so what are you going to do? But yeah, so I would say start with your sheriff, especially if you have a sheriff that seems to be willing to work with you, that's the best place to start. Also your county clerk might be a good advocate to help you out as well. Then I believe what we started with at Travis County jail was we had a group of folks who were already vetted through the jail doing the volunteer work, what we call the programs unit. People who are doing different various programs. So we started there, put a note out to those folks, and then we got another batch of folks from the Austin Justice Coalition who wanted to also participate. They had to go through the two to three week background check process for the Sheriff's Office. They also had to become volunteer deputy registrars through their County Clerk's Office.
So that was a two-step process. But it's not painful, it's not hard, it's a little time-consuming initially to get the thing up and running and rolling. Then I would recommend somebody who's considering doing it, maybe do a walkthrough with the sheriff, or the sheriff's staff, through the jail. So you kind of have a really good idea of the layout and how the process might work. Because we did a lot of trial and error at the beginning, "Hey, let's try it this way." Well that was a miserable idea, let's try something else.
Scott Henson: It's all because of how it's physically laid out.
Hope Doty: It's absolutely how it's physically laid out.
Scott Henson: That's a great point.
Hope Doty: It's also the size of your county, frankly. Harris County has over 10,000-
Scott Henson: It's a small city.
Hope Doty: Totally, yes. Seven stories, two building, 10,000 people, ...
Scott Henson: And another 900 are incarcerated in Louisiana, they can't even fit them all in those buildings.
Hope Doty: Yeah, that's really sad. So they had a different scenario. So again, working from an even larger county, they were able to get a larger number of volunteers, as it happens. The way their jail physically was structured, they were able to take all of the volunteers into the units themselves and work within the units, unit by unit. So it was a completely different setup than you see at the Travis County Jail. Because the Travis County Jail we had a two-hour window on any given day that we were registering voters, because they have a recreational period, I believe. So they are out of their cells, they're in their general population unit, and they're free to move about. So we were able to go in for only a two-hour window on whatever day we were registering them. Or, as happened, on the ballot by mail application day. So we were restricted by a very small window of time. So you can only do so many people in that small amount of time.
Scott Henson: In Houston they were able to do more?
Hope Doty: Yeah, in Houston I understand from talking to the Houston Justice Coalition, their setup enabled them to send a huge number of volunteers into one very large unit, one time. So they didn't have the transition that we had to go pod, by pod, by pod. They would just send a whole bunch of people in one unit, and register a bunch of people, and then move onto the next floor, basically.
Scott Henson: Got you.
Hope Doty: So completely different physical setup and capability of doing that.
Scott Henson: Now it's time for our rapid-fire segment we call The Last Hurrah. Mandy, are you ready?
Amanda Marzullo: I am ready. Senate majority leader Mitch McConnell announced that he'll hold a Whip count for first step act in federal sentencing reform after the election, and hold a vote if there are 60 supporters. Soon after that President Trump announced his support, threatening to overrule his Attorney General, Jeff Sessions, if the latter man didn't like the law. Scott, will this breathe new life into federal justice reform?
Scott Henson: It really is great news, and this is Charles Grassley's bill that is getting tacked onto the first step act to actually do sentencing reform. I suppose there's a lens you could look at this through where this is payback for him expediting the Kavanaugh nomination, for better or worse. But this is an important step, and we couldn't get sentencing reform like this through congresses under Obama, if it can happen in a Republican Congress, more power to them.
Amanda Marzullo: Well I mean it's also just extraordinary that criminal justice reform is something that means so much to an elected, high-ranking Republican, that they're going to spend some of their chips on it.
Scott Henson: Right, the terms of debate on criminal justice reform have really turned nationally. There are more opportunities to do more reform bills at all levels than at any other time. I really hope that everyone jumps on this bandwagon and takes this opportunity. They don't come around very often.
Amanda Marzullo: I hope so too.
Scott Henson: After an inmate had spit on him a prison guard defied direct orders to take the man, handcuffed, to an empty bathroom alone and beat him mercilessly. The inmate died of his injuries two weeks later. Initial reports had not included that detail that he was handcuffed. Mandy, what can the state do to prevent these sorts of incidents?
Amanda Marzullo: I will say that this is a pretty extraordinary case, I mean it's hard to think how it isn't an intentional murder if someone is handcuffed and beaten to death when they're in state custody. So the idea that this could happen means that there's a lot to be done. But one of the big ones is just to have independent oversight of TCJ to make sure that someone else is taking a look at it, and that there's a culture that prioritizes inmate safety.
Scott Henson: Right, when they announced the case and didn't initially say that the fellow had been handcuffed when he was beaten to death, that is a pretty big oversight. Independent oversight might mean that somebody's looking at those details a little bit more, hopefully.
Amanda Marzullo: Yeah, I hope so. Finally, in a debate with Lupe Valdez Governor Greg Abbott endorsed reducing penalties for possession of less than two ounces of marijuana from a class B to a class C misdemeanor. Effectively making it the same as a traffic ticket. Is this the right move?
Scott Henson: It's a great move, it'll eliminate more than 60,000 arrests a year, which would be an amazing thing. The Republican Party platform actually endorsed making low-level marijuana possession a civil penalty, and making it a fine of $250 and a non-criminal offense. The reason to do that instead of the B to a C is that there are federal collateral consequences, for example, you can't get student loans if you have a marijuana conviction, even a low-level class B. So to eliminate those, that's why the Republican Party platform had suggested the civil penalty. But a class B to a class C will still eliminate tens of thousands of arrests and would be a really big deal, either of those policies would be a very welcome improvement.
Amanda Marzullo: All right.
Scott Henson: All right. We're out of time, 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 Service. Goodbye, and thanks for listening.
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, this is the only way it's going to happen.
Susanne Pringle from the Texas Fair Defense Project explains the status of Texas bail litigation and what legislative policy makers should take away from it so far.
Suspicious Mysteries
Probing reasons for differences behind racial disparity between DWI and marijuana arrests in Houston.
Forensic Focus
- Ballistics over-hyped in media coverage
- Junk science writ strikes again: child trauma edition
Interview
Conversation with Hope Doty, who's been spearheading an effort to secure ballot access for Travis County Jail inmates. (There are a couple of unfortunate audio glitches here - my apologies.)
- Prospects for federal #cjreform
- Prison guard beat handcuffed inmate
- Governor Abbott endorses reduced pot penalties
Transcript: October 2018 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by Scott Henson and Mandy Marzullo
Amanda Marzullo: Hi, this is Amanda Marzullo. In Houston officials want to prevent the creation of, quote, robot brothels within the city limits. But having sex with a machine doesn't violate any existing prostitution or sex trafficking laws. Scott, what would be the effect of criminalizing sex with robots?
Scott Henson: Banning robot sex would be a huge slap in the face to the American public. I mean we already have to deal with the fact that flying cars did not turn out to be a thing, so if we can't have sex with robots, then what's really the point of all this high tech futurism stuff?
Amanda Marzullo: That's what we're all aspiring to.
Scott Henson: I mean we were promised this by the SciFi Channel. Getting to have sex with robots was supposed to take all the sting out of them taking all of our jobs.
Amanda Marzullo: All I want to do is leave the room with this. It's really too much.
Scott Henson: We're only going to dig deeper into it, so suck it up, buttercup.
Amanda Marzullo: Oh God.
Scott Henson: Hello boys and girls, and welcome to the October 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.
Scott Henson: Coming up excerpts from a debate between Dallas County District Attorney candidates. Racial disparities in marijuana enforcement, a segment we call Forensic Focus, and an interview with an activist seeking ballot access for Texas jail inmates who are eligible to vote. So Mandy, what are you looking forward to on the podcast today?
Amanda Marzullo: Forensic Focus, that is always my favorite.
Scott Henson: I don't know, for me it's sex robots. It's got to be the sex robots.
Amanda Marzullo: I think that's my least favorite topic ever. So moving on, first up, our top story as we discussed in the opening, Houston Mayor, Sylvester Turner has announced he intends to try to stop a local business from opening in Houston to sell robotic sex dolls. The company's critics have dubbed it a robotic brothel, but it doesn't violate any Texas statutes. So Scott, is banning this sort of business a good idea?
Scott Henson: Banning this sort of business is kind of a ridiculous idea. First, there's no problem yet. This was raised to the mayor by an anti-sex trafficking organization, they did an online petition. I consider this sort of the Outrage Industrial Complex rearing it's ugly head.
Amanda Marzullo: I like that term. The Outrage Industrial Complex.
Scott Henson: The Outrage Ondustrial Complex.
Amanda Marzullo: Ladies and gentlemen.
Scott Henson: It really is, because there's a reason it doesn't violate any laws, it doesn't actually have any victims. I think there's a fear of sex, and there's a fear of technology in this country, and these sort of combine in this issue area to touch on everybody's phobias. I guess that's probably why you want to leave the room whenever they talk about it. It's like, "Oh my gosh, really?" But it's not me, it's Sylvester Turner. I didn't put this on the agenda Mandy.
Amanda Marzullo: Yeah, it's all his fault. I'm with you, I don't think that this should be criminalized, really. This is not a topic that the criminal justice system deals with well. I mean we've seen that in so many other contexts, that we criminalize far too many different types of behaviors I think in our society. I just don't know how to have a productive conversation about this issue.
Scott Henson: Right, well I think what you just said is kind of a big part of my point about where to start the conversation is that we don't really know how to manage it. So the example I would give as a comparison, as an analog, is the drone legislation that the Texas legislature passed. Everyone thought, "Oh no, the drones are going to be hovering over our house and peeking through our windows, and taking pictures of us having sex in our bedrooms, we must stop it." So they passed this legislation to create class C misdemeanors for anyone who takes photos with their drones without getting someone's permission. Well drone photography has turned into such an incredibly useful thing, it has all of these positive notes, all of the fear mongering about all the privacy concerns has really not panned out.
Very few people are hovering drones next to their neighbors' windows. Most people are taking long shots for their real estate listing, or whatever. There are just many, many very legitimate uses. In this same sense with the robots. I have to wonder if when an alternative to the services of sex trafficking organizations comes up that violates no laws, that harms no victims, that doesn't hurt any human being, and basically if you're violating anyone's rights it's the equivalent of disrespecting your Roomba, or whatever, then that seems to me like that might solve a few problems. Maybe I'm projecting too much, but ...
Amanda Marzullo: Yeah, I don't know, and the problem with this issue is that it's intertwined with gender roles, and issues of sex and inappropriateness that are so loaded in our culture right now.
Scott Henson: Yes, the whole debate is loaded.
Amanda Marzullo: Yeah, that it's hard to know when we're actually discussing issues that really are dealing with equity between men and women, and when we're talking about something else. So to me, it seems like something that might be appropriate for regulation, or some sort of administrative process, or some sort of public dialog about whether someone wants this in their backyard. Normally, I hate these NIMBY debates, because I think typically it leads to the oppression of minority groups, and particularly low income groups.
Scott Henson: And limitations on services to those groups very often.
Amanda Marzullo: Yeah, no seriously. But this might be the rare exception. I just don't know how to fix it, I don't even know how to participate in it, and that's why I [crosstalk 00:06:40]-
Scott Henson: I think it's easy to participate, you just buy a doll.
Amanda Marzullo: You know what I mean? I don't even know, if someone wants to have sex with a doll, I don't even know what value judgment to assign that.
Scott Henson: Exactly. It's all even stranger, the debate, because in Houston they have no zoning. So the way that most cities would address this in a regulatory fashion, they don't do that. If you're not going to zone your strip clubs to be away from the churches and schools, then you're sure as hell not going to zone your-
Amanda Marzullo: Robot doll sales.
Scott Henson: That's right, they're calling this a robot brothel, by the way, and that is what its critics were referring to it as. Its business owners are selling robots and because they had a try before you buy policy, is what got the brothel label. I said on the blog that robot sex dolls are probably pretty expensive, you might want to try before you buy. There's a lot of spouses of boat owners who probably wish they had taken similar precautions before they made those investments.
Amanda Marzullo: Yeah, again, it's one of those ... It's ...
Scott Henson: You know I chose this topic just to make you uncomfortable.
Amanda Marzullo: Yeah, no, and you have succeeded wonderfully.
Scott Henson: In Dallas the district attorneys race on the November ballot has emerged as one of the highest profile prosecutor races in the country. On October 18th Just Liberty co-sponsored a debate between the candidates, along with the Dallas area group called Evolve. Both Republican incumbent Faith Johnson and Democratic challenger John Creuzot participated. The candidates spent most of the evening debating who was more committed to reform. Over the course of the debate four key issues emerged as priorities in the race. Innocence initiatives, reducing mass incarceration, bail reform, and holding police accountable when they shoot unarmed civilians or engage in misconduct. I'll publish the full audio of the event on my blog, Grits for Breakfast, in a couple of days.
In this segment let's share some highlights of the debate with our listeners. Faith Johnson began her opening remarks by describing her efforts to bolster the conviction integrity unit in her office, which is charged with seeking out and over-turning false convictions.
Faith Johnson: I also have expanded the conviction integrity unit. That unit was only one prosecutor, one support staff, one investigator. I have increased that unit. I also now have increased it more, because we have a federal grant. That unit reports directly to me. I say to my conviction integrity unit, "I have a mandate, I want to free the innocent. I don't believe that one person who is innocent should spend one second in jail."
Scott Henson: Judge Creuzot began by decrying mass incarceration.
John Creuzot: We know that mass incarceration is a terrible problem in America, it's a terrible problem in Texas, and it's a terrible problem in Dallas county, don't we? Can we agree on that?
Audience: Yes.
John Creuzot: Can we agree that we want to have our next district attorney who understands that mass incarceration is a terrible problem in our communities, yes or no?
Audience: Yes.
Scott Henson: Building on that theme, Judge Creuzot described his record operating a drug court in Dallas County, which is one of the first such specialty courts in the entire state.
John Creuzot: In 1998 we started DIVERT Court, low level drug offenders felony cases, people who would otherwise have a criminal record, put them through treatment, dismissed their case, got it expunged. Did a study on it, 68% reduction in rearrest. What precedes an arrest? A crime. So we're talking about reducing crime. Another study done on that, cost benefit analysis. For every dollar spent, there was $9.34 on avoided criminal justice costs. We didn't stop there. We started looking at the people who went through the system again and again and again, institutionalized individuals, our cousins, our nieces, our brothers, our sisters, our neighbors. We started a program for them similar to the Divert Court program. We put them in treatment and we monitored them. We watched them closely, and we loved them. Something that they have the lost the ability to do to themselves because they've been locked up so many times. What we showed then was a 31% reduction in arrest. We showed a 67% reduction in probation revocations.
Scott Henson: In response Faith Johnson described her own efforts to create diversion programs.
Faith Johnson: That's why two of all diversion programs are DA driven. Our mental health program, which is set, and also our homeless diversion program. That's a program that I started just this year, because when you look at homelessness 70% of the people in this country who are just one paycheck away from being homeless. If you miss that paycheck, you're going to be homeless. Believe it or not, this city, the City of Dallas and the county, we have more homeless people than a lot of counties throughout the state of Texas. So we have to look at mental illness, homelessness. We have to look at drug addiction. When you look at what happened years ago a lot of the diversion programs were just looking at the drug addiction, but now we've got to go a little deeper. We've got to look at the root of this. When you look at the root of something then you can really come up with an answer and a solution to the problem.
So that's why the set program, a mental health program is so critical, because what we're learning is that so many offenses that take place in this county, those defendants have mental illness and for years and years and years we've never addressed it. That's why the mental health diversion program is so critical. That's why our homeless diversion program is so important. That's why our aim program is so important. All three of those programs are DA driven, and it's for the purpose of making certain that we don't throw people away when we really need to serve them, when we really need to help them, and that's what we're doing right now at the Dallas County District Attorneys Office.
Scott Henson: Judge Creuzot however criticized the incumbent for needlessly jailing homeless people for offenses like criminal trespass.
John Creuzot: But there's another issue that we need to talk about, and that is why do we even incarcerate the homeless in the first place? Simple criminal trespass gets people caught up in jail, and the program she's talking about the first time you do anything wrong in the homeless program, this is from the judge to my ears, okay? You get a talking to. The second time you go to jail for 10 days. Now you tell me what good does that do to put a homeless person in jail for 10 days? Absolutely nothing. When I'm your district attorney we're going to take a look at those cases, and if it's simple homelessness, and if it's simple criminal trespass and it doesn't threaten community safety, we're going to put those people merely in services and not even expose them to the possibility of going to jail.
Scott Henson: When questioned about how the district attorney should handle shootings of unarmed civilians by police officers Faith Johnson described her decision-making process surrounding the Balch Springs police officer Roy Oliver who shot 15-year-old Jordan Edwards in a fleeing vehicle and was recently convicted of murder.
Faith Johnson: In fact, my top administrators, when we tried the Roy Oliver case and we started at the beginning of that case, that was the very first time in a long, long time, that a police officer was actually arrested. My prosecutors told me, "No, we don't do it that way, we wait for it to go to the grand jury which could take a year or two years." I said, "No, we're going to treat that officer just like we would treat a regular citizen." We prosecuted Roy Oliver, we got a guilty verdict, we got 15 years in prison. I know some people would want more, but we were there and we tried it. I was a part of that trial. The country is rejoicing all over for that conviction.
Scott Henson: Judge Creuzot answered the same question by endorsing an independent civilian review board.
John Creuzot: I support an independent police review board with civilian power. One, because this community deserves it. We're not just talking about Roy Oliver and that case, we have almost 30 municipalities in this county. I, as a practicing lawyer have reported misconduct by police officers for many municipalities in this community. You know what, nothing ever happens, because they use the independent police review board. How about Dallas police officers telling somebody who to pick out in a photo lineup, when in fact they're supposed to give the photo lineup to a second officer who's supposed to do it. That was my case. You know what happens to that officer, and I went through the public integrity unit to file a complaint, absolutely nothing. He's still there doing the same thing.
I have a police officer who hid the video tape confession from another jurisdiction, not Dallas, but from another jurisdiction, and played as though it didn't exist. When I threatened to subpoena the chief to get down there, the chief got somebody to go find it, and what they did was they didn't mark it, so it went off in an unmarked file, as opposed to a marked file. Guess what happened to him? He was not fired. Okay? Do we need an independent police review board in this community for all of our jurisdictions? You bet. This is bigger than just Roy Oliver and one case. This is a problem that exists in every municipality. Every municipality should have access to that, whether it's one big police review board, or one that's independent from each and every municipality. Either way I support the concept. Thank you.
Scott Henson: On questions of mass incarceration Faith Johnson declared that her commitment to increasing diversity in her office had resulted in fewer prison sentences.
Faith Johnson: First of all I want to say that I am totally against mass incarceration. When you look at how you address it, you really start internally. One of the things I've done is brought diversity to the DA's office. When you bring diversity, and you bring folks who are thinking like you, and who's committed to making certain that equal justice is done to everybody, for everybody, that's going to impact the consequences and the results of what's going to happen in those courts. When you look at what we've done from 2017, from 2016, we have reduced the number of people going to prison. From 2018 to 2017 we're almost doubling number of people who are going to prison. These are the stats. So how do you do that? Why is that happening? It's happening because of the people we're hiring, the training we're doing, and the commitment to making certain that there's equal justice and the right thing is done.
Then we're also doing it by our diversion program. We're looking at alternatives, as opposed to incarcerating people. The reason why we have that alternative is because of our commitment to all of the different diversion programs that we have, and the programs that we've added. So mass incarceration, you look at the people you hire, the people you train. You look at the alternatives that you're offering defendants, and you look at the fact that when you have a methodology, you have a mission, you've got a commitment to making certain that justice is equal for everybody. Then you're going to constantly reduce the number of people going to prison, and make certain that only the right people go there, are dangerous people. We don't want to say we don't want anybody to go to prison. We want to make sure that we put the right people in prison, and those are our most dangerous people is who you want to go to prison.
Scott Henson: Judge Creuzot responded by citing James Forman's new book, Looking Up Our Own, to say diversity in and of itself was no substitute for policy making. He cited his own participation in Texas 2007 probation reforms to demonstrate his own commitment to reduce incarceration, but the debate really heated up when the two discussed the ongoing bail reform lawsuit facing the county. Here's how Creuzot framed the question.
John Creuzot: We have a broken bail bond system, we have a lawsuit that was filed here, first in Harris County, and then up in Dallas County in regards to that. The district attorney played a role in how that case went. Let me read something to you, this is taken off of a federal website, this is in fact the answer that your district attorney gave to the bail bond lawsuit. I'm going to read the title of it, and it says, "Dallas County's motion to dismiss and brief in support." I'm not going to go through all 28 pages of the other stuff, but I'm just going to get to the end of it. The last sentence paragraph says, "Wherefore premises considered, Dallas County praised this court, will grant this motion and dismiss plaintiff's claims against us with prejudice."
What does that mean? Don't come back, go away, see you later. And that plaintiffs take nothing from this suit, and that prospective injunctive release against him be denied in all respects. That it recover its costs and any other relieves of which it might be justly entitled." Signed Faith Johnson, District Attorney, Dallas County, Texas. Okay? So what would I have done had I been your district attorney at that time? I would have agreed that the current systems I unconstitutional, and illegal, and that the best way to determine if somebody is going to be a risk to not show up is to do a risk assessment, which the United States is in the process of doing. We're not quite done, bail reform is a relatively new concept around the United States, and there's research going on to develop tools and instruments, and Houston is now doing that. We now have a court order.
That was ignored, by the way, by the judge, and the judge granted injunctive relief against Dallas County and gave Dallas County the plan. But I would not have done that. I'm just telling you right now. Keeping somebody in jail who can show up to court, merely because they don't have money, is unconstitutional and it is immoral.
Scott Henson: Faith Johnson responded to say she was only representing what the county's judges wanted, not her own positions.
Faith Johnson: If you know this lawsuit that my opponent just made a reference to, it's styled Shannon Davies versus Dallas County. This is a lawsuit against Dallas County and the judges. One thing people don't know is that the Dallas County District Attorney's office ... I'm a criminal district attorney. So I handle all the criminal cases and the civil cases. Meaning that when the Commissioner's Court if sued, we have to represent them. Guess what, we have to listen to our client in terms of how the case is ultimately going to be decided.
Scott Henson: But Judge Creuzot would have none of it, he declared he would have admitted the system was unconstitutional and not have filed a motion to dismiss the suit.
John Creuzot: Anybody in here a lawyer? You're a lawyer? Okay. Let me tell you about the rules that govern lawyers. Your client can't tell you to do something that's unconstitutional or illegal, okay? You can throw it back on your client all you want. The bail bond system was unconstitutional, and is unconstitutional, and is illegal and immoral. You can blame it on the commissioners all you want, but when you sign your name to a piece of paper, that's your name, not their name. Signing it on behalf of each and every one of them to dismiss the case. Hey, it's right there. You can come up with who said what and who did what, but if the judge had followed this, guess what? We'd still be in the status quo with the same old thing going on. As a lawyer, hear me again please, your client cannot order you to do something that is unconstitutional or illegal.
You have to exercise your independent judgment, everybody knows that, if you're not a lawyer you know that to be true, right? I'm telling you right now, this would not have been the answer on behalf of the judges, on Dallas County, or anything any other entity had I been the district attorney. All this filing paperwork, and this that, and the other, this piece of paper never would have existed, and we would have gotten ahead of this, instead of having to fight it, and take as long as we did to get to the point where we are, had I been your district attorney. I promise you, we're going to get bail reform, and we're going to do it the right way when I'm the district attorney.
Scott Henson: Toward the end of the event questioners pivoted back to police shootings and their impact on community trust.
Moderator: So community trust between 2005 and April 2017 80 officers have been arrested on murder or manslaughter charges for on duty shootings. During that 12 year span 35% were convicted, while the rest were pending or not convicted. According to the work by Philip Stinson, an associate professor of criminal justice at Bowling Green State University in Ohio. How will you work to rebuild the trust of the community back into the judicial system when so often officers are not even indicted, let alone found guilty of wrongful death?
Scott Henson: Judge Creuzot took the opportunity to discuss the recent shooting of Botham Jean by Dallas police officer Amber Guyger in an incident which drew national headlines.
John Creuzot: So one of the things of building trust we've already brought up as a citizens review board to review the actions of police. The other thing is thank god for cell phones and security cameras, isn't it? How about that? A lot of that stuff, we're talking about those people who we charged wouldn't have been charged with anything. Do you remember the police officer who shot the man in the back as he was running away, and then took out a gun and stuck it down there next to him? Thank god somebody had a cell phone. So what we need to do is what we should do, and that is number one, don't treat any police officer any differently. If Botham Jean had walked into her apartment and same situation, I guarantee you he wouldn't have walked away, he'd have been put in cuffs and taken where? To the police station. A camera would have been put on him, he would have been read his rights. He wouldn't have turned himself into Kaufman County.
So when we talk about how we treat ... That was a police issue. The police made that decision to do that. But I've made it perfectly clear by posting and trying to explain to the community what this case is about. I don't know how it's going to end up, it has to go to the grand jury, and I trust that it'll be fairly done. It's not a manslaughter case, and I've gone through that. If you go to my Facebook page you can read it, it more fits murder than it does manslaughter by a large amount, okay? Not even close. So when we talk about police accountability there's technology that's helping us find out and catch and then we've got to be vigorously committed to prosecuting those cases to the full extent of the law, when we can prove them beyond a reasonable doubt.
That's the only way that we're going to get to this. Unfortunately we're finding out day-by-day and month-by-month that there are some, not many thank god, but some police officers who just won't follow the laws. One thing we haven't talked about recently that we did 30 years ago is alternative uses of force instead of shooting somebody. We need to retrain our officers, I think, and have a real community commitment to doing that, so that the gun is not the first option to deal with somebody.
Scott Henson: Faith Johnson answered the question by revisiting her officer's prosecution of the Roy Oliver case.
Faith Johnson: We did something that has not happened in 43 years when we tried the Roy Oliver case. I took that case and when you look at the position that the Sheriffs Department was taking, and even my own staff said to me, "We don't do it that way." What they were accustomed to, Miss Davies, thank you for being here by the way, I appreciate you ... Elizabeth Frizell's mama. What they were accustomed to is always taking the case to the grand jury, never arresting an officer. Allowing that officer to walk on the street. While if Billy Joe had done the same thing, he would have been arrested right away, in jail, pending trial. I took the position if you do it to Billy Joe, you got to do it to Roy Oliver. I talked to the Sheriff Department, he was finally arrested, we prosecuted him, he was found guilty. We got a 15-year sentence. People all over the world, not just the state of Texas and county, all over the world, were rejoicing.
You know why? Because it didn't happen in California. They couldn't get a conviction in New York, they couldn't get one in Tulsa, Oklahoma, we got it in Texas because my commitment is that I would not tolerate bad cops. Now I support our police, I love our police, it's the bad ones that I won't tolerate, and that's how we are going to be able to get trust in our community back into law enforcement, because they got to know the same thing. If I do that, then you'll do the same thing to the guy who wears the blue uniform, that you do to the guy that doesn't wear it. That's how we're going to restore trust in this whole community, and our whole system. That's what I'm doing. Not based on what I promise you, this is what I've done. One thing you all don't know, we have prosecuted more police officers than any county in my tenure since 2017, than any county in the United States.
Scott Henson: It's surely remarkable that two district attorney candidates in Texas's second largest city spent most of their hour and a half debate competing over who would be the most likely to deliver reform. That's a stark shift in terms of debate in Texas prosecutor elections from just a couple of decades ago, and a very welcome change. In a couple of days I'll publish the full debate between Faith Johnson and John Creuzot on my blog, Grits for Breakfast. So if you want to hear more from these two candidates, look for that soon.
Amanda Marzullo: Bail reform has been a hot topic for the last several years in Texas. The litigation results in Houston and Dallas, and a ruling by the Fifth Circuit limiting the Harris County order have complicated the question of exactly what is required for Texas County bail schemes to be deemed constitutional. Recently Scott sat down with Susanne Pringle, Legal Director at the Texas Fair Defense Project, for a front lines explanation of where this issue is at in Texas courts, and the implications for bail reform in 2019.
Scott Henson: Litigation over bail reform and pre-trial detention in Texas of late has had the feel of one of those shell games favored by street hustlers, in which you try to identify which of three cups the ball is under. It's hard to know where to watch, and nearly impossible to keep one's eye on the target. That's especially true in Harris County where the county has implemented certain reforms, while ignoring others. The Fifth Circuit has issued two conflicting rulings, and the full federal appellate court is yet to finally rule. I asked Susanne Pringle to explain the status of Harris County bail litigation, and describe for us when they might reach some conclusion.
Susanne Pringle: Judge Rosenthal issued the injunction which included release after 24 hours if you have been determined able to be released on money bond, but you can't afford it. Released within 24 hours if you haven't had a hearing yet. Required individualized bail determinations, et cetera. The Fifth Circuit on appeal of that particular injunction said generally this okay, 48 hours is more appropriate than 24, and I want you to go back to the drawing board on a couple of other things. So Judge Rosenthal issued a new injunction that was similar to her original injunction that did include a 48-hour instead of a 24-hour window, and on what's called, on an emergency, motion to stay, which is not a full appeal of the injunction. But an emergency motion to stay, a three-member panel of the Fifth Circuit said, "Wait a minute, we're going to stay, which means keep from going into effect, the provisions of the injunction that apply to the first 48 hours."
So that three-person panel on the basis of an emergency motion to stay said for now, everything that required release, if you haven't been seen within 48 hours, or release if you've been determined that you could be released on a certain amount of money, but it's been determined that you can't afford it. Those two, which were the two biggest provisions, in terms of getting people out in Harris County, that three-person panel said, "We are going to stay those provisions of the injunction pending an appeal on the injunction." So at this point we are waiting for the Fifth Circuit to actually rule on the appeal of those three provisions. They've been stayed, they're not in place for now, but they haven't actually been ruled on in a way that's appealable. Does that make sense?
Scott Henson: Well no wonder I was confused.
Susanne Pringle: Yes.
Scott Henson: Oh my gosh. Okay, well that is-
Susanne Pringle: Lots of legal complications, but it is bad in that it means that there are ... For the year after the injunction that Judge Rosenthal originally ordered, people were getting released in numbers like 125 to 150 a day, who had been determined that they could be released on money bail, but couldn't afford it. Those folks were getting released. Folks that weren't getting seen in the allotted period of time, which was 24 hours at the time, those folks were getting released. So none of those folks are getting released anymore. So that is bad, from the perspective of bail advocates who thought that folks should be released if they couldn't afford bail, but were determined for release.
Scott Henson: Now Harris County did make some internal changes in response to all this, are none of those still causing at least some of those releases to happen?
Susanne Pringle: Some folks are ... I think the number of personal bonds being issued has increased in Harris County, people are getting lawyers at their hearing, they're getting public defenders.
Scott Henson: That's a big deal.
Susanne Pringle: That's a big deal. That is actually catching on. I mean part of what we're getting at later in this conversation is what's happening across the state, but that is starting to catch on around the state, and I think you're going to see more and more counties adopting that model of getting people appointed counsel or public defenders at that initial hearing. That leads to lower bond amounts, which people are more likely to be able to make. That leads to more personal bonds, because there is somebody at the hearing who can advocate for that. So there are certainly more people being released than there were before the original injunction went into place, but there are fewer people being released now than there were under the initial injunction.
Scott Henson: Got you.
Susanne Pringle: I do want to go back to the ... I said this is bad, and there are bad things about it. But I think it is important to note that we're still waiting for the Fifth Circuit to rule on the question in a final way. This is an emergency motion to stay, I realize that's sort of an insider sounding term, but it is not the final decision of the Fifth Circuit on this issue.
Scott Henson: Got you.
Susanne Pringle: So even though it is bad right now, we can't take it as the last word, because it's not. Hopefully we'll have the briefing in the Fifth Circuit is all coming out in the next month or so, and then we'll get an argument date, and hopefully we'll have more of a sense in the coming months of what the Fifth Circuit is actually going to say about those provisions of the injunction, and hopefully it'll be different.
Scott Henson: That actually clarifies a lot, thank you so much. I have to say, I have been almost just overwhelmed with the complexity of the status of what all this meant. Speaking of which, and actually this follows directly along with your comments there about getting lawyers at hearings, to me that takes us to Dallas.
Susanne Pringle: Yes.
Scott Henson: Dallas also has now had, is it an injunction?
Susanne Pringle: Yes, a preliminary injunction.
Scott Henson: All right, tell us the status of what's going on in Dallas. I know the county has ponied up for 24 new employees to start to have lawyers at the bail hearings, give us an update there, and explain to me how this fits in, because they're in the Fifth Circuit too with everything else that's going on.
Susanne Pringle: Yeah, well so there are a couple of ways that Dallas County is different than Harris County. One is that felonies are included, not just misdemeanors. So the actual injunction that has been issued applies to a much larger number of people in Dallas, than it did in Harris County, because felonies are included. It is also different in that the injunction that Judge Godbey issued in Dallas does not apply to that first 48-hour period of time. It much more closely resembles what the Fifth Circuit suggested would be an injunction that they would endorse, which means it requires individualized bail determinations. It requires a consideration of ability to pay. It requires a consideration of a personal bond, or personal recognizance release. It requires notice to defendants about what's going to be an issue at that hearing. But it does not require any of the release pieces that we talked about that Judge Rosenthal's original injunction required.
So there are more people that are getting those individualized bail hearings, that will be getting those individualized bail hearings. The injunction has actually not gone into play yet, it was delayed for 30 days upon Judge Godbey's ruling. It maybe delayed longer, depending upon how long it takes to get things into place, but it will be applying to a much broader number of people. Now Dallas County has said publicly, and the Commissioners Court has voted publicly, that they are going to hire, as she said, up to 24 new employees. They have a public defender's office there, which like Harris County makes them in a position to more quickly, more easily put in place lawyers at bail hearings.
Scott Henson: There's a structure to [crosstalk 00:39:32].
Susanne Pringle: Exactly, there's already a structure, so they're in the process of hiring those employees. I understand that they're trying to get them in place quickly as they can, that it might take a little bit. It might take a couple of months, but that they are committed as a county to putting those positions in place. Then the other piece of the case that is different than Harris County is that there was also a claim about open access to bail hearings, where the plaintiffs were actually magistrations in Texas, which are organizing groups of folks who are often impacted by the criminal justice system. So another piece of what's happening in Dallas County is that they're making an effort to at least make those magistrations accessible by video, if not in person.
Scott Henson: Got you. I spoke to a reporter who, after much effort, finally got in to see some of those.
Susanne Pringle: Great.
Scott Henson: She said it was done in almost a broom closet type room, such a small setting, that it was almost like it was intentional, no, it would just be impossible to have someone there.
Susanne Pringle: I think that's true in a lot of counties, especially because they typically take place in the jail. For example, in Travis County they happen in a similarly small broom closet space, and they would rather people not be there.
Scott Henson: Got you. All right, so we've got litigation in Harris County, we've got litigation in Dallas County, and-
Susanne Pringle: And there's also a case in Galveston County-
Scott Henson: In Galveston.
Susanne Pringle: ... that is pending that we are not on. I'm not a lawyer on that, so I can't speak exclusively about that. I believe that they are still in the ... I don't think they have an injunction in place yet in Galveston County.
Scott Henson: But then at the same time, we see some counties trying to do this in other ways. Corpus Christi created its own risk assessment, instead of using the state's risk assessment. Is this a moment where it would be beneficial for the legislature to step in and create some basic standardized, state-wide rules? It strikes me, it seems like we're either going to have lawsuits, just county by county, or counties are just going to do whatever they think of themselves. Then we sue and see what happens. Or you could just have a new structure that says no, everyone has to have individualized bail hearings. Everyone has to use a risk assessment. Are we at a point yet where we can tell what the legislature should do? Or is it all still to unformed and uncertain?
Susanne Pringle: I think that there are a few things that we know that the legislature could do, and I think counties would appreciate the guidance. There are certainly lots of counties that are trying to do the right thing, and aren't sure exactly what that is, and could use some systemic guidance. So the legislature could make clear that everybody is supposed to get an individualized bail hearing, and that that bail hearing is supposed to take into account ability to pay. That that ability to pay should be a key point in decision making about what bond they're going to set for folks. The legislature could required a validated risk assessment tool be used, and if the legislature is going to do that, I think they also want to dictate that any sort of risk assessment tool is a tool for the judge to figure out what conditions this person could need in order to come back to court, and in order to keep the community safe.
I think the danger of the risk assessment tool is that there are some counties that want to use it as a release or not release decision. All the experts say that if you're going to use a risk assessment tool, and you make sure it's validated and it doesn't have an impact, it's not racist or classist, then once you're using that tool you're using it to decide what can I do to support this person to make sure that they get back in court? Is it a text reminder? Is it a bus pass? Is it that they need an electronic monitoring? Is it that they need some other sort of check in? What do they need to be most likely to come back into court? As opposed to using that risk assessment as a 'we're keeping you, we're not keeping you' decision making tool.
The legislature could absolutely mandate the use of a validated risk assessment tool, along with the presumption of release and the use of the risk assessment tool to determine the best possible conditions upon release. The legislature could absolutely mandate and should mandate that there's a presumption of release on personal bond, and with the least restrictive conditions. Those are all things that the legislature could do right now that would give counties a lot of guidance in what they could be doing right now.
Scott Henson: Next up a segment we call Suspicious Mysteries, in which we explore questions to which there are no definitive answers. This time let's delve into the question of racial disparities in the justice system. In Harris County black folks are arrested for DWI at far lower rates than their proportion in the population. 14% of DWI arrests in Harris County are of African-Americans who make up 19% of the county population. But black folks count for a massive proportion of marijuana arrests. At Houston PD in particular, nearly 60% of people arrested for pot were black, compared to just 25% of the city's population. So Mandy, what explains the big racial disparity in marijuana arrests, but none for DWI?
Amanda Marzullo: Sorry, I'm laughing because this is such a big question. That there really just is no answer to it. I think the big question that leaps out at me is what is the pretext that led to these arrests? Was there a call for service that led to an eventual arrest for this second part, like you know, an offense when it comes to marijuana use? Or if there was a stop, what was the reason for it? These two crimes deal with very different kinds of enforcement, and there can be regional disparities, there could be issues with individual officer judgment, but it's very hard to tell just at the macro level what's happening without more detail.
Scott Henson: Well I don't know, I think we can make some reasonable inferences. I think that when you talk about how do people get to these cases, I think that's really the issue that probably explains it. I think most DWI cases are probably based on much more solid probable cause than a lot of the pot cases. So for example, most DWI cases are because a cop sees someone swerving in the lanes, or they've pulled someone over for another traffic violation, and they smell alcohol on their breath. I think that the array of circumstances under which people are arrested for marijuana is just much, much more broad. It's more just the police happened to be in your business, and run across pot.
Amanda Marzullo: I think you're probably right. I just hesitate because this is such a loaded topic, that I think from our perspective we need to have a lot of information before we're drawing inferences, because it's really had to tell what's happening, and-
Scott Henson: Well that's fair, but I do also think that the level of disparity is massive. You hear people say all the time the criminal justice system is racist, it's racist. Well the fact is that when you really dig into the numbers pockets of it are racist, there's places where all of a sudden you hit this part of the system, and there's a massive racial disparity at this turning point. So for example, who stays in jail and who gets bailed out. So this marijuana enforcement piece I think looks to me like one of these areas in the justice system where all of a sudden, boom, we have a massive disparity. Greg Abbott had suggested reducing penalties for marijuana enforcement. When he made that pitch, his pitch was if we reduce everything to a class C we're going to save money on jail costs, and we're not going to have to pay for everyone's lawyers if they're indigent. We're going to save all this police officer time so they'll stay on the street to be able to enforce other things.
Amanda Marzullo: Yeah.
Scott Henson: But you can also look at that policy as almost explicitly just a racial justice question. I mean if you're looking in the system and trying to identify where are the biggest disparities, and where can we reduce enforcement to make it less disparate, this is one of those big areas where, to me, you can say, "Hey, nobody really thinks the marijuana offenders are that big a threat, we can reduce a big amount of disparity in one chunk just be reducing those penalties. Or in other states they've legalized it.
Amanda Marzullo: There are a lot of different decisions that are made on the part of the arresting officer, on the part of the prosecutor, defense attorney and how much time they spend on the case, and the judge ... Legal followers have referred to this as cascading racism. I think it's true, that they all compile to very different outcomes in the case. So I find it's very hard to point to one pocket, but I think we definitely can all identify some of these low-level possession drug offenses as being not worth our time and expense in prosecuting. It just does more harm than good.
Next is a segment we call Forensic Focus. Honing in on problems with flawed forensics used in Texas courts.
The Houston Chronicle recently published a feature touting the successes of ATF agents using a ballistic database called the National Integrated Ballistics Information Network to solve crimes. But on your blog, Grits for Breakfast, you criticize the paper for over-stating the effectiveness of ballistics matching. Calling on journalists to avoid terms like 'match' or claiming that ballistic markings are unique. Why is this a concern?
Scott Henson: Well this is one of those issues that goes back to the National Academy of Sciences report from 2009 that you and I have now discussed several times. This was a landmark publication by the most preeminent scientific organization in the United States. Analyzing for the very first time all of the areas of so-called forensic science that have been used, in many cases, for more than 100 years, but had never been validated by science. Really in many cases had no scientific basis. So some of the forensics that have the most problems, where there are the most serious shortcomings, are comparison-based forensics. Ballistics is one of those. So these are things like everything from ballistics and tool marks, to fingerprints, to tire tracks, to anything that you're comparing one-to-one. Hair and fiber, hair before they did DNA, bit marks, all of these comparison-based forensics where someone is basically looking at it through a microscope, and saying, "Okay, these look similar."
Amanda Marzullo: Yeah.
Scott Henson: But it's not actual
ly a scientific finding. The Chronicle used these terms like 'match' and-
Amanda Marzullo: Unique.
Scott Henson: Yes, and this was unique information. We absolutely cannot say those things, there's no scientific basis for that at all. The National Academy of Sciences report, and we're going to the glasses here for the small print, declared that examiners who are making these calls are making a, quote, subjective decision based on unarticulated standards and no statistical information about error rate. So it's not a computer that's matching these things, like it might be on a CSI TV show, it's some person looking at them and saying, "These look similar." Based on what standards? There are no standards, literally it's just a guy or a gal saying these look similar. How similar? To what degree of certainty? What's the error rate? We do not know, no one knows.
So when the cops say, "We've got a match and we've made an arrest." There's less certainty there than perhaps they're portraying. Now is it possible or even likely that they got the right person? Certainly, but we have to leave some space for the uncertainty of the scientific method, or the lack of one.
Amanda Marzullo: Yeah, no I think you're right. There have been a number of studies out there that have talked about how jurors weigh the evidence that are in front of them, and that having someone in a lab coat come in and saying, "These two things are the same, and I've looked at it." Is pretty powerful information, but really at the end of the day, it's subjective assessment.
Scott Henson: Well especially when you're referring to the science. It's the lab coat, right? It's the forensic science, we're from the crime lab, and we're doing this with a scientific basis. It's not really that way at all on these comparison-based forensics.
Next, the Texas Court of Criminal Appeals will consider the case of Rigoberto Avila, an El Paso man convicted of murdering an infant based on what courts now acknowledge was, quote, "False and misleading scientific evidence." Mr Avila is on death row and has already faced four serious execution dates, but if this scientific testimony was wrong, it bolsters his innocence claims which he has stuck to from the beginning. Mandy, what do people need to know about this case?
Amanda Marzullo: There are a few things, but I think a few of them are just how much error there can be in the criminal justice system, and how hard it is to correct it, and the importance of meaningful judicial review. So Mr Avila has been on the row for 17 years. He had four very serious execution dates, he came very close to being executed, but the new evidence is really showing that there is no crime. This was a tragedy without a villain.
Scott Henson: Now false and misleading scientific evidence is about as strong as you could get from a judge criticizing forensic testimony.
Amanda Marzullo: Exactly. So this just shows that we need to have a lot of skepticism about our criminal justice system. On top of that, this is a case where the trial court, when confronted with a [inaudible] writ application analyzed the evidence independently and wrote their own findings of fact and conclusions of law. That type of judicial scrutiny is key to correcting problems in the system.
Scott Henson: Didn't just rely on what the prosecutor or the defense attorneys gave him, but the judge actually went through and made her own judgments and called her own shots, and wrote her own prose. That's unbelievably rare in these cases, and it shouldn't be, but it is.
Amanda Marzullo: It's awful, but thank god that it happened.
Scott Henson: Right, and it's sad that we can only seemingly get at these bad forensic issues when some judge or some prosecutor somewhere goes way above and beyond. It doesn't happen through just the typical run of the mill functioning of the justice system. Somebody has to do something really extraordinary for some of these forensic cases to really make.
Amanda Marzullo: Yeah, definitely.
Moving on, election season is upon us, and voters everywhere are amping up for what maybe one of the highest turnout midterms ever. But thousands of inmates incarcerated in county jails are technically eligible to vote. They're legally innocent until proven guilty, after all. Most people incarcerated in county jails are there pre-trial. But sheriffs who run the jails frequently throw up barriers to allowing that to happen. Scott sat down with Austin activist Hope Doty who's been working to secure voting access for eligible voters in Travis County's jail. Let's hear what she has to say.
Scott Henson: I'm here today with Hope Doty who has spent most of 2018 trying to get ballot access for Travis County jail inmates. Hope thank you for talking with me today.
Hope Doty: Thank you for having me Scott, appreciate it.
Scott Henson: All right, so this process started earlier in the year, it's been going on quite a while, and obviously with the election coming up, you've just about reached the denouemnt of your efforts. So tell me about your story, your journey here. Tell me why you started to try and get ballots into the jail, and what that was like.
Hope Doty: All right, so first of all we started about March of this year, and I was working with the Austin Justice Coalition, who shamelessly stole the idea from the Houston Justice Coalition, who had started registering folks at their jail. We worked with the Travis County Sheriff's Office and the Travis County Clerk to propose getting some voter registration volunteers into the jail. So we were able to get folks vetted over their background check process, which is a few weeks. Then we got quite a number of folks volunteered to ... They had to of course become VRs, volunteer deputy registrars, through the Travis County Tax Office. As we got a number of volunteers we did our first voter registration at the jail in March. We've done it every between five and six weeks, and so far, well by the end of the session when the deadline hit in early October, we had registered over 400 folks from the Travis County jail. So we're pretty proud of that.
Scott Henson: So the jail population is pretty transient for a registration drive. First, you've got folks who are often just there for a very short period of time, pre-trial. You have some that are staying longer, and I imagine those are the folks who you're more dealing with when you're going in over time leading up to an election. Perhaps I'm wrong. But we were also discussing before we started how especially in the state capital, in Austin, there can be folks from all over the state who might be in the jail. So what's that population ... Of course, you can't vote if you have a felony and are still on parole.
Hope Doty: True, yeah.
Scott Henson: Or on paper in some way. So talk to me about the population that you were registering, and 400 compared to say 2,500 people in the jail may not sound like a lot, but the subset that may be eligible is probably a much bigger number, right?
Hope Doty: Yeah, so what it turned out to be [inaudible 00:59:18] I got my statistics correct here, approximately 50 to 65% of the jail population at any given time are eligible to register to vote. Yeah, we do have a lot of folks that sit there waiting for trial, we have folks on misdemeanor charges and of course some folks that are awaiting a felony charge, a felony trial. But anybody who has not been convicted of a felony yet, in other words, or if they've been convicted of a felony and they are what is considered off-paper-
Scott Henson: Yeah, their parole or probation has ended.
Hope Doty: Parole, probation, any punishment and incarceration. Once that's completed, even if they're sitting in jail on a misdemeanor, as long as that felony conviction is off paper, they are eligible to register and vote. That first step is a lot of education for both the folks who work in the jail, and also for the volunteers. Then the biggest piece is making sure that the inmates understand that.
Scott Henson: All right. Well what advice would you give to someone in another county who wanted to try and do this there?
Hope Doty: Oh boy, I would say go for it. My philosophy with this whole process has been the worst thing they can tell me is no. So start there, start with your county clerk, start with your county-
Scott Henson: It's probably happened a few times though.
Hope Doty: Just a few. But I'm kind of a pit bull, so what are you going to do? But yeah, so I would say start with your sheriff, especially if you have a sheriff that seems to be willing to work with you, that's the best place to start. Also your county clerk might be a good advocate to help you out as well. Then I believe what we started with at Travis County jail was we had a group of folks who were already vetted through the jail doing the volunteer work, what we call the programs unit. People who are doing different various programs. So we started there, put a note out to those folks, and then we got another batch of folks from the Austin Justice Coalition who wanted to also participate. They had to go through the two to three week background check process for the Sheriff's Office. They also had to become volunteer deputy registrars through their County Clerk's Office.
So that was a two-step process. But it's not painful, it's not hard, it's a little time-consuming initially to get the thing up and running and rolling. Then I would recommend somebody who's considering doing it, maybe do a walkthrough with the sheriff, or the sheriff's staff, through the jail. So you kind of have a really good idea of the layout and how the process might work. Because we did a lot of trial and error at the beginning, "Hey, let's try it this way." Well that was a miserable idea, let's try something else.
Scott Henson: It's all because of how it's physically laid out.
Hope Doty: It's absolutely how it's physically laid out.
Scott Henson: That's a great point.
Hope Doty: It's also the size of your county, frankly. Harris County has over 10,000-
Scott Henson: It's a small city.
Hope Doty: Totally, yes. Seven stories, two building, 10,000 people, ...
Scott Henson: And another 900 are incarcerated in Louisiana, they can't even fit them all in those buildings.
Hope Doty: Yeah, that's really sad. So they had a different scenario. So again, working from an even larger county, they were able to get a larger number of volunteers, as it happens. The way their jail physically was structured, they were able to take all of the volunteers into the units themselves and work within the units, unit by unit. So it was a completely different setup than you see at the Travis County Jail. Because the Travis County Jail we had a two-hour window on any given day that we were registering voters, because they have a recreational period, I believe. So they are out of their cells, they're in their general population unit, and they're free to move about. So we were able to go in for only a two-hour window on whatever day we were registering them. Or, as happened, on the ballot by mail application day. So we were restricted by a very small window of time. So you can only do so many people in that small amount of time.
Scott Henson: In Houston they were able to do more?
Hope Doty: Yeah, in Houston I understand from talking to the Houston Justice Coalition, their setup enabled them to send a huge number of volunteers into one very large unit, one time. So they didn't have the transition that we had to go pod, by pod, by pod. They would just send a whole bunch of people in one unit, and register a bunch of people, and then move onto the next floor, basically.
Scott Henson: Got you.
Hope Doty: So completely different physical setup and capability of doing that.
Scott Henson: Now it's time for our rapid-fire segment we call The Last Hurrah. Mandy, are you ready?
Amanda Marzullo: I am ready. Senate majority leader Mitch McConnell announced that he'll hold a Whip count for first step act in federal sentencing reform after the election, and hold a vote if there are 60 supporters. Soon after that President Trump announced his support, threatening to overrule his Attorney General, Jeff Sessions, if the latter man didn't like the law. Scott, will this breathe new life into federal justice reform?
Scott Henson: It really is great news, and this is Charles Grassley's bill that is getting tacked onto the first step act to actually do sentencing reform. I suppose there's a lens you could look at this through where this is payback for him expediting the Kavanaugh nomination, for better or worse. But this is an important step, and we couldn't get sentencing reform like this through congresses under Obama, if it can happen in a Republican Congress, more power to them.
Amanda Marzullo: Well I mean it's also just extraordinary that criminal justice reform is something that means so much to an elected, high-ranking Republican, that they're going to spend some of their chips on it.
Scott Henson: Right, the terms of debate on criminal justice reform have really turned nationally. There are more opportunities to do more reform bills at all levels than at any other time. I really hope that everyone jumps on this bandwagon and takes this opportunity. They don't come around very often.
Amanda Marzullo: I hope so too.
Scott Henson: After an inmate had spit on him a prison guard defied direct orders to take the man, handcuffed, to an empty bathroom alone and beat him mercilessly. The inmate died of his injuries two weeks later. Initial reports had not included that detail that he was handcuffed. Mandy, what can the state do to prevent these sorts of incidents?
Amanda Marzullo: I will say that this is a pretty extraordinary case, I mean it's hard to think how it isn't an intentional murder if someone is handcuffed and beaten to death when they're in state custody. So the idea that this could happen means that there's a lot to be done. But one of the big ones is just to have independent oversight of TCJ to make sure that someone else is taking a look at it, and that there's a culture that prioritizes inmate safety.
Scott Henson: Right, when they announced the case and didn't initially say that the fellow had been handcuffed when he was beaten to death, that is a pretty big oversight. Independent oversight might mean that somebody's looking at those details a little bit more, hopefully.
Amanda Marzullo: Yeah, I hope so. Finally, in a debate with Lupe Valdez Governor Greg Abbott endorsed reducing penalties for possession of less than two ounces of marijuana from a class B to a class C misdemeanor. Effectively making it the same as a traffic ticket. Is this the right move?
Scott Henson: It's a great move, it'll eliminate more than 60,000 arrests a year, which would be an amazing thing. The Republican Party platform actually endorsed making low-level marijuana possession a civil penalty, and making it a fine of $250 and a non-criminal offense. The reason to do that instead of the B to a C is that there are federal collateral consequences, for example, you can't get student loans if you have a marijuana conviction, even a low-level class B. So to eliminate those, that's why the Republican Party platform had suggested the civil penalty. But a class B to a class C will still eliminate tens of thousands of arrests and would be a really big deal, either of those policies would be a very welcome improvement.
Amanda Marzullo: All right.
Scott Henson: All right. We're out of time, 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 Service. Goodbye, and thanks for listening.
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, this is the only way it's going to happen.
Since the apparent reason many opposition voters are incarcerated in an election year, it'll be a hard slog to allow eligible voters access to a ballot. I wish you the best of luck on this.
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