Top Stories
- Elections: DA race updates; judicial races, and #cjreform implications for Harris County turning blue.
- Artists confront the justice system in exhibit at Houston museum.
Kathy Mitchell on the Austin police contract
Forensic Focus
Bill filed to eliminate forensic hypnosis
Fill in the Blank
- Austin PD rape clearance rates inflated?
- Bipartisan debtors prison reforms
- Federal First Step Act teetering; Ted Cruz leaning no
- Texas doesn't track children of incarcerated parents
- Journalist who made up quotes had other shortcomings
Find a transcript of the podcast below the jump.
Transcript: Reasonably Suspicious podcast, November 2018, co-hosted by Scott Henson and Amanda Marzullo
Amanda Marzullo: Hi, this is Amanda Marzullo. Last week in Highland Park, part of a wealthy enclave encircled by the city of Dallas, surveillance footage captured a man in a white SUV pulling up to a mansion, getting out of his vehicle, and climbing into a $300,000 Ferrari sitting in the driveway. As it happened, not only was the door open, but the keys were in the car along with $2,000 worth of painkillers. Soon thereafter the gentleman drove away in the Ferrari, leaving his SUV behind. Police found the front of the SUV had been damaged, and an open can of beer in the console.
So Scott, what do you think of this guy trading an SUV and some beer for Ferrari and a pile of painkillers?
Scott Henson: I think if they're honest, our listeners would agree that would've done the same thing in my position. Listen, it's flat out irresponsible to leave your Ferrari unlocked with the keys in it and a boatload of painkillers inside. I think we can all agree on that.
Amanda Marzullo: Yeah. I mean it's a bait car really is what it was.
Scott Henson: That's right.
Amanda Marzullo: You're entrapped.
Scott Henson: That's right. Well, if I hadn't taken the Ferrari, what kind of message would that send, really? I mean the universe has its ways of punishing ruling class hubris, Mandy ... and I was just its agent, Is really what was going on.
Amanda Marzullo: I couldn't agree more. It's justice is what it was.
Scott Henson: It is justice. If you own a $300,000 Ferrari and leave it unlocked with your drugs laying there in the passenger seat, you kind of deserve what you get, you know what I mean?
Amanda Marzullo: Yeah.
Scott Henson: It's hard to feel too sorry for the guy.
Amanda Marzullo: Yeah.
Scott Henson: Hello boys and girls, and welcome to the November 2018 episode of the reasonably suspicious podcast covering Texas criminal justice, politics and policy. I'm Scott Henson, policy director of just liberty here today with our good friend, Amanda Marzullo, who's executive director of the Texas Defender Service. How are you doing, Mandy?
Amanda Marzullo: I have never been better, Scott. How are you?
Scott Henson: Well, I'm great, but I'm not quite that good. I'm glad to hear it. On this reasonably suspicious episode, the state senator wants to band forensic hypnosis from Texas courtrooms. A museum in Houston tackles justice reform through art. We take a first look at Austin's newly negotiated police union contract, and we parse the recent election results through a Texas justice reform lens. So, Mandy, what are you looking forward to talking about on the podcast today?
Amanda Marzullo: The election results.
Scott Henson: Ah, forensic hypnosis is just calling my name, I feel like. The election was fun, I agree.
Amanda Marzullo: Okay. Our top story is the recent election. Last month, the podcast highlighted the Dallas district attorney race featuring excerpts from a debate in which both candidates competed over who was most likely to enact reform. The winner, John Creuzot, ran on a platform of ending mass incarceration. He promised to reduce the number of people Dallas county sends to prison by up to 20%, and pledged to produce a written plan to reduce mass incarceration within 90 days of taking office.
That wasn't the only big DA election this November. In San Antonio, democrat Joe Gonzales will soon take over for Nico LaHood. Gonzales eliminated a republican opponent who, like Faith Johnson in Dallas, ran as a moderate in tact toward reform in the general election.
In Tarrant County, incumbent DA Sharen Wilson survived the so called Blue Wave, but in Fort Bend County, democrats enjoyed a county-wide sweep, including Brian Middleton, an African-American democrat defeating the republican heir apparent to retiring DA John Healey.
So, Scott, what stood out to you for the DA races this cycle?
Scott Henson: Well, the big news was clearly that John Creuzot, Faith Johnson race. The amazing view of two district attorney candidates in a major Texas city, arguing over who would be the most reform-minded, who would be the most likely to prosecute wayward police officers, who would be the most likely to reduce incarceration, was really just eye-popping. I'd never seen anything quite like that before.
I do think that the Joe Gonzales race in Bexar County may be sort of a sleeper in terms of really interesting places to watch. That wasn't as high profile a race, and because the race was really decided in the primary when he beat Nico LaHood, that didn't get the same sort of national attention as the Dallas race did. Folks who I know who have spoken extensively with Gonzales, say that he's more progressive than one might expect, and that he may turn out to be even more progressive than Creuzot when we're all said and done.
While all this is projection, you know, everything is hopeful on the front end of all this.
Amanda Marzullo: Exactly. What's exciting about Gonzales, too, is that he's in a solidly blue metropolitan area that has been that way for a very long time. If he's looking to create policies that are reform-driven, he'll have a lot of institutional support at the county level.
Scott Henson: Same goes for John Creuzot, really. Dallas is a pretty blue county at this point. He does have some leeway to go ahead and try to do some reforms.
The other interesting thing is the Fort Bend County race. That really turned much more on the Beto O'Rourke turnout, and all Democrats in Fort Bend County won. I'm no sure we can say whether voters were really saying anything about a reform agenda or not, but that's another instance where there's new leadership, and a real opportunity for somebody to chart a new path in.
Amanda Marzullo: In a county that has had one of the most conservative DAs in the state. That could be huge reform there. For listeners, will probably remember that John Healey was the DA that sat on Brady material for extended periods of time, or at times, didn't disclose it to the defense on materiality grounds. Changing who's in charge, and giving new leadership to that organization is incredible. Also, they have a high incarceration rate.
Scott Henson: Right. That's potentially a very, very big change, even if it didn't play out on these issues in the way it did in Dallas.
As poll predicted, republicans swept all the state-wide seats from US senator on down to all the supreme court, and court or criminal appeals races. An under examined outcome from this election cycle was the near sweep of intermediate Texas appellate courts, where democrats won 30 of 32 contested seats. Of those, 19 were seats held by republicans. That leaves democrats the majority in seven of 14 appellate courts, including in Dallas, Houston, and Austin, with more vulnerable GOP health slots up in 2020.
So, Mandy, if the GOP still controls all the top appellate courts, how important are these intermediate court victories? Are these partisan labels meaningful given the actual day to day job that faces these lawyers once they're on the bench?
Amanda Marzullo: Well, these intermediary parts are extremely important. They set the precedent for their judicial region until they're overturned by the court of criminal appeals. As a lot of our listeners know, it's rare that the court of criminal appeals is going to pick up an issue unless it's raised by the state prosecuting attorneys office.
Scott Henson: Right. Most petitions to the court of criminal appeals are denied.
Amanda Marzullo: Yeah, unless you're the state prosecution attorney, then you get deference. In the meantime, these courts are the ones that control those issues, and they often deal with novel legal issues on a regular basis, so it's quite important.
Something that you've brought up in our talking about these issues, is that it does hold implications for redistricting.
Scott Henson: Right. Potentially, the Texas supreme court eventually gets all these cases, but it's absolutely the case. The third court of appeals where the democrats just took over, sees all these cases when they come up through the legal process.
Amanda Marzullo: All right. Last election story. In Harris County, democrats completed a total sweep of all county-wide races, including all 59 contested judicial seats, and the election of a new 27-year-old county judge, Lina Hidalgo, whose research specialty at Harvard Law, was children of incarcerate parents.
So, Scott, what does this partisan shift mean for Harris County from a criminal justice perspective?
Scott Henson: This really could have huge implications. Harris County is the largest county in the state, obviously, but historically, it has sent a disproportionate number of people to prison, sent a disproportionate number of people to death row, and really has been sort of the epicenter of incarceration in Texas, where Texas is more or less the epicenter of mass incarceration on the planet.
Amanda Marzullo: Yeah.
Scott Henson: This is a big shift. It's amazing to have a country judge elected who's an ardent criminal justice reformer, and with Rodney Ellis there on the commissioner's court with her, I think that we can look forward to some really important policy changes moving forward.
The other big thing about this is that among the 59 judges that were ousted, were all of the misdemeanor court judges who were opposing bail reform. The folks who are actually litigating against reform have all been ousted. For the most part, the judges replacing them all support bail reform. I think we're going to see big changes in Harris County, and the change is so dramatic, I think it's hard to predict where it will start or what we'll see first, but I'm rather excited about this, and especially excite about bail reform. I feel like they've spent eight million dollars fighting that, and it's been years and years. Wow. For that opposition to just evaporate over night is awesome.
Amanda Marzullo: I know. It's really exciting. Just all of the issues that you flagged, I mean, those effect every point in a criminal case, really, from the moment of arrest all the way through disposition, and even sometimes after that. It's exciting to see what will come next.
Scott Henson: A wall turned sideways is a bridge, according to an artist featured in an exhibit currently showing if the contemporary art museum in Houston running through January 6th. Titled, "Walls Turn Sideways," artists confront the justice system. The exhibit is free to the public and includes a thought-provoking collection in a variety of media that's highly critical of all aspects of the modern justice system. As someone who's been thinking deeply about justice issues for going on a quarter century, I've never seen anything quite like it.
Mandy, what stood out to you from this collection?
Amanda Marzullo: I guess, well, one of the big things that was exciting to see was some graphs that an artist produced. Looking at the relationship between prisons and museum growth and sort of the thesis there was that mass incarceration has sort of ballooned over the same period that we've seen a rise in income and equality.
Scott Henson: Right. As well as a rise in museums, and a rise in the value of high-end art. It was all on the same graph. Kind of crazy.
Amanda Marzullo: All on the same graph. A part of her thesis was that patronage of museums is an index in a lot of ways of extreme wealth.
Scott Henson: Right.
Amanda Marzullo: And that someone's paying for this art.
Scott Henson: Just the stuff in museums.
Amanda Marzullo: An the stuff in museums, in a lot of different ways. It was really interesting. I think part of the write-up, not all of it held water, though, because they were talking about people being incarcerated for crimes of poverty, and I don't think that that's necessarily the case. There just isn't enough information but we are seeing crime in general is a product of decreased in opportunity, and that's certainly the case.
Scott Henson: I agree. That was probably a bit of a stretch, but I did think that the broader issue she raised of museums are places that hold surplus wealth, and prisons are places that hold surplus labor, and sort of making that parallel, that as you see greater and greater income disparity, you have greater surplus labor that we now house in the prisons, we have greater surplus wealth that you now house in the museums. I thought that was a fascinating way to think about that. I certainly have never considered it before.
While there's probably some nuances that it misses, it also captures something that most of us never think about in precisely that way. What's art for if not to do exactly that?
Amanda Marzullo: Yeah.
Scott Henson: One of the ones that I thought was really high impact for me anyway, was one that we talked about before about an artist in Indianapolis had created participation trophies for all of the police officers who had shot someone in Indianapolis over a period of years. This person had gone back and gotten the name of every officer and gone to some cheesy trophy shop, and had trophies made for all of them, and they were just participation awards.
One of them was a couple dancing, one of them was a bowler. For your participation in the shooting death of so-and-so, and all of them there on the trophy shelf together, the irony was just so thick. It kind of was just an amazing thing. Of course, knowing each one represents a dead person. It was a very stunning display in a very interesting way to think about that.
Amanda Marzullo: Yeah, no. This was a really dense exhibit, so we're not going to be able to get into all of it, but the creativity on a lot of these artists was extraordinarily impressive.
Scott Henson: Right. Well, and some of it was very hard-hitting in ways, you wonder if it's art or advocacy, I have to say. There was one where I thought this was, again, just a very hard-hitting set of imagery, where they had the same inmate at the Mohawk Correctional Facility. Is that New York?
Amanda Marzullo: I think so.
Scott Henson: At any rate, the same inmate over time, with visits from his entire family. It's his wife and his daughter, and young infant son. The daughter's growing up, and the son's growing up, and the wife changes a lot over time, her hairdo, her clothing styles, but the inmate has the same inmate garb, the same face, you can always recognize him even if can't always ... You're looking, is it the same woman? Is it the same child? Well, it is, but he's the constant throughout all these pictures. There's dozens and dozens of them in a row. Just very high impact piece. It's so simple, and it has artistic impact, but it's also just all the photos from visitation day.
There were several like that. There was one from Texas death row, where they had a photo of all of David Lee Powell's last effects boxed up, and then on the wall, they had the index of contents from each of the boxes, which were numbered there in the photo. It included everything from just his toiletry items and stuff everyone would have to all the books that were in his possession, you saw all the titles of the books he was reading, some of which were from deep philosophy to just trashy novels you read for fun.
I went to visit it with a friend who was visiting from Germany, and she found that just transfixing, reading through the contents of his last effects, and again, a very high impact presentation.
Amanda Marzullo: For those of our listeners who don't know, David Lee Powell was the first person who was executed in Texas after the death penalty was reinstated in the 1970s.
Scott Henson: A very significant choice of who to portray that way, because obviously there's now hundred you could portray that way.
Amanda Marzullo: Five hundred and fifty-five.
Eleven months ago, the Austin city council rejected a contract with the local police union because community leaders led by the Austin justice coalition believed it did not allow for sufficient oversight of police. Long time listeners may recall this podcast featured interviews with activist [San-sin yong-way 00:17:47] and [Suki McMan 00:17:49], union negotiator, Rhonda Lord, and others during that long and bitter local fight.
Earlier this month, police accountability advocates signed off on new contract in police oversight system in Austin ending the nearly year-long standoff. In December, Scott will sit down with lead union negotiator, Rhonda Lord, and Chaz Moore of the Austin justice coalition to talk about the politics of what happened. For now, let's focus on the details of the new policy.
Scott's wife, Kathy Mitchell, was deeply involved in Austin justice coalition's push to improve police oversight in the capital city. He asked her to update everyone on exactly what happened.
Scott Henson: So, Kathy, tell us what was accomplished as a result of this recent fight.
Kathy Mitchell: Essentially, Austin now has civilian oversight of the police force outside of the police contract. Now, not everything is outside the contract. In order for civilians to review critical incidents, they had to have access to what's called the G-file, which is the deep, dark secret file of police misconduct that's maintained at the department.
Scott Henson: It's part of the state's civil service code that 70 different municipal police departments opted into, but most departments don't have that.
Kathy Mitchell: That's correct. That does help me tell you about some of what we got in the contract. In order for that civilian oversight system to work better than the civilian oversight system we had in the past, we got more transparency into that G-file. When a person files a complaint now, unlike under the old contract, they will get to know more about the complaint as it goes through the process. That complainant will get a closeout hearing, and they will receive something in writing that says what the findings were, and what the outcome was for the police officer, as long as there was any kind of outcome for that officer. So if that officer was disciplined, a complainant can know about it, and that information will become public.
Scott Henson: In addition to the changes in the contract, there was also a new ordinance passed that creates a new oversight system for the city. Tell us what's in that.
Kathy Mitchell: That is the main thing I was talking about when I said we created civilian oversight outside the contract. There was an ordinance, and it allowed a panel to be created, it also authorizes the office of police oversight to review cases, accept complaints, and probably most importantly, lead a public dialogue about the findings that occur in the course of civilian oversight, and the systemic changes that might be needed to fix problems for everyone, and not just for that one person.
Scott Henson: Y'all had asked for a whole long list of things, and you just got a few of them. Tell us what did you get? What were some of the reforms that you wanted that weren't accomplished through this process?
Kathy Mitchell: Well, there's something called the 180-day rule. It is in the civil service state law, and it was also in the old contract, and it's still in the new contract. The 180-day rule, essentially means that if you file a complaint after 180 days have passed since the incident, the officer can not be disciplined.
Now, we did get some relief for more serious misconduct. There's arguably criminal conduct, as we know in Texas, a lot of conduct is arguably criminal conduct. The time, the 180-day clock doesn't start ticking until an assistant chief level supervisor knows about the incident. That means that things can no longer be buried at the bottom of the chain of supervisors.
With that said, there are still a lot of cases, I think, we're going to find that get blocked by the 180-day rule, and we fully intend to keep talking about that, and bring it up again in four years.
Scott Henson: If I'm not mistaken, police officers still get to see the case against them before they have to sit down and be interviewed. Is that correct? They get to receive all the evidence against them, see it with their lawyers before they're required to answer any questions when there's a bad incident.
Kathy Mitchell: Well, we did improve on that a little bit, thanks to the old contract expiring, and Austin going under civil service for almost a year. The city got used to the civil service standard on that, which is narrower. Officers get to see their own evidence, but not all the evidence. I think that the civil service standard should be the floor. Obviously, you wouldn't let any other kind of suspect see evidence against them before asking them for a statement. This is simply not credible investigation practice. For now, I think we feel good that we have improved the system over what it was before the old contract expired.
Scott Henson: Last, but not least, y'all saved the citizens of Austin a lot of money. The contract they negotiated last year was going to cost an additional 80 million plus dollars, and now it's down to 40 some odd million is the new number. Tell us how that was achieved with all this extra money you freed up.
Kathy Mitchell: Yeah, well, I think that in the course of the dialogue about oversight, the council started to become comfortable with the idea that oversight isn't a thing that you have to pay extraordinary special wages for, that it's something that should come with the job. In the course of this negotiation, a number of questionable kinds of stipends, and money offers basically just went off the table. Council didn't like it the first time around and clearly weren't going to go for it the second time.
The patrol stipend, which was a special payment offered to patrol officers for patrolling went away. There had been an offer of a one-time signing bonus for every officer, just for voting for the contract last time, that went away. There were small negotiations around things like court time, where they get under the old contract, they got four hours at time-and-a-half for the first hour showing up in court. That was negotiated heavily, and didn't come down a lot, but it did come down to three hours of time-and-a-half. Each of those things, every piece of that firm "no" on the part of the city helped us get to more value at lower costs.
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Amanda Marzullo: Hi. This is Amanda Marzullo. I'm the executive director of the Texas Defender service. Please join us for our annual luncheon on December 4th. Tickets to the event, which include valet parking, can be purchased on our website, TexasDefender.org. The Texas Defender Service is the premiere capital defense organization in Texas. Our event will cover the charismatic and engaging Stephen Bright, who's argued and won several capital cases before the US supreme court, and is a hero to defense attorneys everywhere.
Scott Henson: Next up is segment we call forensic focus, in which we discuss issues related to forensic science, crime labs, and efforts to apply modern science to a decade's old forensic methods.
This month, we're returning to a topic we've been discussing on the podcast since last November. State senator, Juan Chuy Hinojosa, veteran democrat and criminal defense attorney, whose district runs from Corpus Christi, to the Rio Grande Valley, has filed SB-130 to band hypnosis-induced testimony in Texas courtrooms.
Mandy, why is this bill necessary, and what are its chances?
Amanda Marzullo: This bill is necessary because it's still being used. We're still seeing, in cases, it's hard to know why or how, but you could make the argument that it's in cases where witness is unsure of what they saw or who they saw do it.
Scott Henson: If they were sure, no one would need to hypnotize them.
Amanda Marzullo: Okay, exactly. Yes. Those are cases where the evidence is particularly weak. Using hypnosis, there are a lot of ways to talk about it, but at a minimum, it raises questions about whether it undermines the integrity of someone's recollection rather than reinforces it. If it's being used, and it is creating further issues, it's something that requires a bill to stop.
Scott Henson: Yeah. I think it's more than just a question about the integrity. I think that at this point, if you're using hypnosis in your investigations, it's pretty much a joke. Why not just have a tarot card reading, and do that? It's about a that level.
I recently just purchased a copy of the textbook that the Texas commission on law enforcement requires on forensic hypnosis classes. It is an amazing piece of work. First off, it has this sort of weird freudian basis, where it tells us that one-eighth of the brain is the conscious mind, and seven-eights of the brain, or the subconscious mind, and the task of the hypnotist is to delve into the subconscious mind. Well, modern brain sciences told us this is all just a bunch of hokum. The book advocates that they try and get witnesses to engage in automatic writing as part ...
Well, this is like paranormal garbage. It's foolishness. They advocate getting you to go into age regression, I guess for childhood trauma or whatever.
Amanda Marzullo: How is that relevant? Wait, what?
Scott Henson: Age regression where they hypnotize you, and try and get you to think back up, pretend you're a child, then relive it.
Amanda Marzullo: So, they're actually advocating that a hypnotist for purposes of eyewitness identification, engage in a series of encounters with an individual?
Scott Henson: Well, no. Age regression, meaning that they're trying to get the person to regress to a prior age in their subconscious somehow. Right?
Amanda Marzullo: Because we all make great decisions when we're young? I'm sorry.
Scott Henson: It's bizarre-of world. It's taking all of this sort of flakey, fringe pseudo, paranormal pseudo science, and pretending that it's an investigative technique. Just over and over, there's these elements that show you everything throughout that textbook, nearly seems like it's trying to tell you, you shouldn't be using this for law enforcement.
In the curriculum for the Texas commission of law enforcement on hypnosis, there's a requirement that in order to get a certification, you have to demonstrate your proficiency at implanting post-hypnotic suggestions on your subject. Well, why in the world does a police detective need to implant memories in a witness? Why would you require them to be trained on that to get their certification? This is insanity. It is junk science, and it should be gone.
The only that that I'd add to the Chuy Hinojosa's bill, and I think it's a great idea and I'm glad they're doing it, is it's just a very simple one-liner that says you can't use this in the courtroom. We have this entire certification program that's in statute at the commission of law enforcement. They should delete all that, too. There's no way to fix it, there's no scientific basis for hypnosis.
Amanda Marzullo: You're talking about eliminating-
Scott Henson: The certification program.
Amanda Marzullo: The certification, itself,
Scott Henson: Exactly.
Amanda Marzullo: But you're speaking just about forensic hypnosis?
Scott Henson: That's right. That's right. There's no way to fix that certification. There's no scientific version of forensic hypnosis. It's all hokum.
Amanda Marzullo: If it's inadmissible, they'll stop using that.
Scott Henson: That'll end soon enough.
Amanda Marzullo: Yeah. In terms of the second piece of your question, what are the likelihoods of passage? I mean, it's always hard to pass a bill, right?
Scott Henson: Right.
Amanda Marzullo: The prospects of success are about one in five, but in this case, we're dealing with a bill that is really hard to argue against.
Scott Henson: It really is. There's so few people using it even anymore. There's only two agencies that still have a significant number of people using it. The department of public safety and Harris County Sheriff's office. Otherwise, there's hardly any left, so I do feel like there's very good chances for it, and we'll see. Thank you, Chuy Hinojosa for authoring the bill.
In our penultimate segment, let's play a quick game of fill in the blank, in which Mandy and I suggest how to complete a statement about a recent criminal justice reform story. Let's start with a story out of Austin.
A recent podcast by the national center for investigative reporting in a group called PRX, interviewed a whistle-blower from the Austin police department, a former sergeant who was in charge of the agency's sex crimes unit. She was alleged she was remove from her position because she refused to change the case status for hundreds of rape cases from unresolved to cleared, a move that she believed was justified. She was removed from the position, and her replacement changed the definitions for cleared cases, significantly bumping up the numbers. Austin police chief, Brian Manley, chalked the episode up to a difference of a opinion about the data.
So, Mandy, fill in the blank. Austin PD's clearance rate for rate is?
Amanda Marzullo: Fiction. Fiction, based on this story by the center of investigative reporting, it's very clear that they have been reclassifying a lot of rape classes as closed, when in fact they could make an arrest and didn't.
Scott Henson: Right. Then, the victim was willing to testify, and at least the case that they highlighted in the story.
Amanda Marzullo: Yeah. I think in the broadcast on KUT, I think one of the reporters from the story said they didn't get enough information to really drill into all of the cases the way they should, but where there's smoke, there's fire in this instance. If you are reclassifying upwards of 1500 rape cases in a city, that is a pattern of behavior.
Scott Henson: Right. Without us replaying everything that they did on the podcast, because it was an excellent report, there's a disconnect in chief Manley's responses that really just hasn't been resolved. I had written about this issue in the blog, and afterwards, chief Manley came up to me-
Amanda Marzullo: Really?
Scott Henson: He did. After the Austin police contract vote. He very earnestly wanted to explain to me what they'd done what they did, but he kept falling into the same sort of gaps and flaws in his argument that he did on the podcast. He would have all these sort of secondary resources, "Oh, well my supervisors assure me," or "I told them to audit a bath of cases and see effects," or whatever. Well, this woman was describing the sergeant who was the head of the sex crimes unit, was describing very specific cases that she was being pressured about, and very specific issues that she was being told to ignore. He's not addressing this at that level of detail, and it makes her come off as very credible because she has specifics, and it makes him come off as evasive because he doesn't.
I certainly hope that he's right about the definition, because it'd be terrible to think that nearly 1500 women's cases were reported as solved, but weren't really.
Amanda Marzullo: But weren't pursued.
Scott Henson: That's right. That somehow that's a systematic thing that we're doing. I hope he's correct, but you judge credibility in part based on who can talk with specificity about the issue, and knows details, and both on that podcast. When he talked to me afterward, he needed more details to be credible in the face of what was reported. His responses are simply not good enough right now.
Amanda Marzullo: Well, hopefully we'll get more information later.
Next one, when debtors prison reform legislation passed the Texas legislature in 2017, encouraging local governments to waive more fines, and allow more community service, municipal judges [inaudible 00:35:28] insisting that revenue from traffic tickets would plunge as a result. Instead, revenue from class C misdemeanor tickets increased by 7%, according to data reported by the state's office of court administration. This year, both political party platforms endorsed ending arrest for unpaid class C misdemeanor debt, using commercial collections instead of jail in the event of non-payment.
So, Scott, fill in the blank. Jailing people for traffic ticket debt is?
Scott Henson: Utterly counterproductive. To me, it was totally predictable that the reforms we had in 2017 would not reduce collections, because we were never going to collect from the people that they were trying to squeeze money out of, anyway. You can not get blood from a stone. That's really what all this has been about.
It doesn't surprise me that collections went up. I know it surprises a lot of our municipal judges around the state, because they were claiming that the sky would fall, that revenue would plunge, the cities would go bankrupt.
Amanda Marzullo: Yeah. Whenever we're talking about not collecting money from someone who can't afford it, you really have to wonder how that's really going to effect the bottom line.
Scott Henson: That's right. It didn't really make sense, even when they were saying it. I think we're going to see the same types of concerns over chairman James White's suggestion this go around, to stop arresting for nonpayment of class C misdemeanor traffic ticket debt.
Again, in reality, it's just not a thing in states like Arizona, where they have civil infractions for traffic instead of criminal offenses like we do here. Their rate of collections is essentially similar. It's not something where the form of civil versus criminal, are we going to punish you? That's not what's making people pay. They're not paying because they can't pay. It's not that they're evil people you have to punish if they don't do it.
Amanda Marzullo: Yeah, no. It doesn't make any sense. I was going to say that it's just a massive civil rights violation. I mean, the constitution has said that you shouldn't be incarcerating people because of their income status, and that's what we're doing.
Scott Henson: Here, I was sure you were going to say it was penny-wise and pound-foolish.
Amanda Marzullo: I'm trying to mix it up lately, Scott.
Scott Henson: All right. Well, it's both those things. Both a massive violation, and penny-wise and pound-foolish.
Amanda Marzullo: Yeah, and you're right. I think you said it, too, it's counterproductive that it costs the state much more money, and counties much more money to incarcerate someone for not paying money. It's just throwing money into a hole.
Scott Henson: Right. It really is. Half a million people in Texas, last year, sat out their traffic fines in jail.
Amanda Marzullo: Yeah, and all it did was cost county tax payers money.
Scott Henson: That's an amazing number, half a million people. There's only 16 million people with a drivers license.
Amanda Marzullo: The average night in custody is around $50, right? That's a conservative estimate.
Scott Henson: Your first day there is more like 200 because of all the intake costs.
Amanda Marzullo: Okay. Let's say a minimum of 200 times-
Scott Henson: Half a million.
Amanda Marzullo: That's a 100 million dollars, right there.
Scott Henson: That's right. I think we had estimated that if the average length of stay, of course some will stay just a day, some might stay many, to set out their traffic fines. If the average length of stay was two days, that's 2500 bed years of incarceration for traffic tickets. That's a lot of people sitting a lot of time in jail, at that volume.
Amanda Marzullo: Yeah. Just to beat dead horse, it makes it even more surprising that county officials would oppose this because we're talking about significant savings on their end.
Scott Henson: They're afraid of losing their money, but it's an unwarranted fear.
Amanda Marzullo: Yeah. They're going to save money.
Scott Henson: Now, it's time for our rapid fire segment we call the last [inaudible 00:39:46]. Mandy, are you ready?
Amanda Marzullo: I'm ready.
First up, President Trump has endorsed the First Step Act, which is the first federal reform bill involving sentencing or prisons in eight years, but majority leader Mitch McConnell says he may renege on his promise to vote for the legislation during the lame-duck session, putting the issue off until the next congress.
Scott, how important is this bill, and will it get a vote soon?
Scott Henson: I think there's a sense among the advocates I've talked to out of DC that if they don't get a vote pretty soon, they're worried this thing may die on the vine. Some of the new republicans coming in may oppose it, some of the new democrats coming in may want more. Right now, they know they have the votes in the senate, and if they can get the majority league bring it up, they will.
I will say, what we're hearing is that Ted Cruz is one of those who's leaning Senator Cornyn to his credit, is one of the sponsors of the legislation. Ted Cruz is one of those who we're trying to flip, so if you want to call his offices and let him know he needs to vote for this, now is an excellent time to do so.
All right. In testimony earlier this year to the Texas house corrections committee, the legislative budget board revealed that it has no idea which inmates in Texas prisons are parents of minor children, so there's no way to target those children for supportive services while their parents are inside.
House corrections committee chairman, James White has pledged to file a legislation this yer to begin tracking these youth. Mandy, why is this important?
Amanda Marzullo: Because it has implications for the welfare of untold numbers of minors. It's the same reason why separating families at the border is big deal. It's the same thing.
Scott Henson: Well, and there's really even a crime prevention element, too. I mean, children of incarcerated parents are very likely to commit crimes later on, themselves, so the more support and help you can give for them-
Amanda Marzullo: Yeah. Sorry, I'm being flippant, but yes. It's an extremely vulnerable population that we need to be aware of, and to make sure that we're providing them services, and access to their parents. I think one reason why this is really important is to ensure that they're able to maintain a relationship while their parents are on the inside.
Scott Henson: That's a great point.
Amanda Marzullo: Finally, for many years when he was at the Austin Statesman, Mike Ward was the primary journalist in Texas covering the prison system. He was the only reporter who went to the board meetings, and frankly was the only source in Texas mainstream media for prison-related news. After he left the Statesman to become Austin bureau chief at the Houston Chronicle, Ward was caught making up quotes in stories. A review of his work identified 122 people quoted in 72 stories, who could not be located.
Scott, you wrote a blog that you weren't surprised by these revelations.
Scott Henson: I have to say, I really wasn't. We have a lot of excellent, excellent journalists in this state, and Mike Ward was never one of them. Mike was a sycophant to power throughout his journalistic career. He was not someone who's really interested in covering the stories related to the Texas prison system. He was interested in having an in with power, and being their voice. One of the most amazing things about this is that it's not just that he was making up quotes, and that's this journalistic violation, he just wasn't covering the news.
There's a woman named Keri Blakinger, who we've mentioned on the podcast several time, who after Mike left that beat, she became the primary reporter, who's really covering the Texas prison system. From the moment that she took over that beat, it was as though someone had turned on a light in a dark room. All of the sudden, she has been breaking story, after major story, after major story. We've talked probably about more than a dozen of them on this podcast. Prisoners not getting dentures, prisoners having disciplinary cases fabricated against them by guards, people have been indicted because of her reporting. All of these were stories that were just sort of laying around that beat, and no one had been covering for years.
To me, that's Mike's biggest failing. The making up the quotes, yes, that's reprehensible, but equally reprehensible, was frankly covering this beat in such a one-sided way for so many years, that we really had no insight into what's going on in the prison system.
We're out of time, but we'll try to do better the next time. Until then, this is Scott Henson from Just Liberty.
Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Good-bye, 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. It's the only way it's going to happen.
Amanda Marzullo: Just a reminder, everyone, Texas Defender Service is holding its annual luncheon on December 4th in Houston. I really hope to see all of y'all there.
Scott Henson: Everyone show up if you can. It'll be a great event.
Transcript: Reasonably Suspicious podcast, November 2018, co-hosted by Scott Henson and Amanda Marzullo
Amanda Marzullo: Hi, this is Amanda Marzullo. Last week in Highland Park, part of a wealthy enclave encircled by the city of Dallas, surveillance footage captured a man in a white SUV pulling up to a mansion, getting out of his vehicle, and climbing into a $300,000 Ferrari sitting in the driveway. As it happened, not only was the door open, but the keys were in the car along with $2,000 worth of painkillers. Soon thereafter the gentleman drove away in the Ferrari, leaving his SUV behind. Police found the front of the SUV had been damaged, and an open can of beer in the console.
So Scott, what do you think of this guy trading an SUV and some beer for Ferrari and a pile of painkillers?
Scott Henson: I think if they're honest, our listeners would agree that would've done the same thing in my position. Listen, it's flat out irresponsible to leave your Ferrari unlocked with the keys in it and a boatload of painkillers inside. I think we can all agree on that.
Amanda Marzullo: Yeah. I mean it's a bait car really is what it was.
Scott Henson: That's right.
Amanda Marzullo: You're entrapped.
Scott Henson: That's right. Well, if I hadn't taken the Ferrari, what kind of message would that send, really? I mean the universe has its ways of punishing ruling class hubris, Mandy ... and I was just its agent, Is really what was going on.
Amanda Marzullo: I couldn't agree more. It's justice is what it was.
Scott Henson: It is justice. If you own a $300,000 Ferrari and leave it unlocked with your drugs laying there in the passenger seat, you kind of deserve what you get, you know what I mean?
Amanda Marzullo: Yeah.
Scott Henson: It's hard to feel too sorry for the guy.
Amanda Marzullo: Yeah.
Scott Henson: Hello boys and girls, and welcome to the November 2018 episode of the reasonably suspicious podcast covering Texas criminal justice, politics and policy. I'm Scott Henson, policy director of just liberty here today with our good friend, Amanda Marzullo, who's executive director of the Texas Defender Service. How are you doing, Mandy?
Amanda Marzullo: I have never been better, Scott. How are you?
Scott Henson: Well, I'm great, but I'm not quite that good. I'm glad to hear it. On this reasonably suspicious episode, the state senator wants to band forensic hypnosis from Texas courtrooms. A museum in Houston tackles justice reform through art. We take a first look at Austin's newly negotiated police union contract, and we parse the recent election results through a Texas justice reform lens. So, Mandy, what are you looking forward to talking about on the podcast today?
Amanda Marzullo: The election results.
Scott Henson: Ah, forensic hypnosis is just calling my name, I feel like. The election was fun, I agree.
Amanda Marzullo: Okay. Our top story is the recent election. Last month, the podcast highlighted the Dallas district attorney race featuring excerpts from a debate in which both candidates competed over who was most likely to enact reform. The winner, John Creuzot, ran on a platform of ending mass incarceration. He promised to reduce the number of people Dallas county sends to prison by up to 20%, and pledged to produce a written plan to reduce mass incarceration within 90 days of taking office.
That wasn't the only big DA election this November. In San Antonio, democrat Joe Gonzales will soon take over for Nico LaHood. Gonzales eliminated a republican opponent who, like Faith Johnson in Dallas, ran as a moderate in tact toward reform in the general election.
In Tarrant County, incumbent DA Sharen Wilson survived the so called Blue Wave, but in Fort Bend County, democrats enjoyed a county-wide sweep, including Brian Middleton, an African-American democrat defeating the republican heir apparent to retiring DA John Healey.
So, Scott, what stood out to you for the DA races this cycle?
Scott Henson: Well, the big news was clearly that John Creuzot, Faith Johnson race. The amazing view of two district attorney candidates in a major Texas city, arguing over who would be the most reform-minded, who would be the most likely to prosecute wayward police officers, who would be the most likely to reduce incarceration, was really just eye-popping. I'd never seen anything quite like that before.
I do think that the Joe Gonzales race in Bexar County may be sort of a sleeper in terms of really interesting places to watch. That wasn't as high profile a race, and because the race was really decided in the primary when he beat Nico LaHood, that didn't get the same sort of national attention as the Dallas race did. Folks who I know who have spoken extensively with Gonzales, say that he's more progressive than one might expect, and that he may turn out to be even more progressive than Creuzot when we're all said and done.
While all this is projection, you know, everything is hopeful on the front end of all this.
Amanda Marzullo: Exactly. What's exciting about Gonzales, too, is that he's in a solidly blue metropolitan area that has been that way for a very long time. If he's looking to create policies that are reform-driven, he'll have a lot of institutional support at the county level.
Scott Henson: Same goes for John Creuzot, really. Dallas is a pretty blue county at this point. He does have some leeway to go ahead and try to do some reforms.
The other interesting thing is the Fort Bend County race. That really turned much more on the Beto O'Rourke turnout, and all Democrats in Fort Bend County won. I'm no sure we can say whether voters were really saying anything about a reform agenda or not, but that's another instance where there's new leadership, and a real opportunity for somebody to chart a new path in.
Amanda Marzullo: In a county that has had one of the most conservative DAs in the state. That could be huge reform there. For listeners, will probably remember that John Healey was the DA that sat on Brady material for extended periods of time, or at times, didn't disclose it to the defense on materiality grounds. Changing who's in charge, and giving new leadership to that organization is incredible. Also, they have a high incarceration rate.
Scott Henson: Right. That's potentially a very, very big change, even if it didn't play out on these issues in the way it did in Dallas.
As poll predicted, republicans swept all the state-wide seats from US senator on down to all the supreme court, and court or criminal appeals races. An under examined outcome from this election cycle was the near sweep of intermediate Texas appellate courts, where democrats won 30 of 32 contested seats. Of those, 19 were seats held by republicans. That leaves democrats the majority in seven of 14 appellate courts, including in Dallas, Houston, and Austin, with more vulnerable GOP health slots up in 2020.
So, Mandy, if the GOP still controls all the top appellate courts, how important are these intermediate court victories? Are these partisan labels meaningful given the actual day to day job that faces these lawyers once they're on the bench?
Amanda Marzullo: Well, these intermediary parts are extremely important. They set the precedent for their judicial region until they're overturned by the court of criminal appeals. As a lot of our listeners know, it's rare that the court of criminal appeals is going to pick up an issue unless it's raised by the state prosecuting attorneys office.
Scott Henson: Right. Most petitions to the court of criminal appeals are denied.
Amanda Marzullo: Yeah, unless you're the state prosecution attorney, then you get deference. In the meantime, these courts are the ones that control those issues, and they often deal with novel legal issues on a regular basis, so it's quite important.
Something that you've brought up in our talking about these issues, is that it does hold implications for redistricting.
Scott Henson: Right. Potentially, the Texas supreme court eventually gets all these cases, but it's absolutely the case. The third court of appeals where the democrats just took over, sees all these cases when they come up through the legal process.
Amanda Marzullo: All right. Last election story. In Harris County, democrats completed a total sweep of all county-wide races, including all 59 contested judicial seats, and the election of a new 27-year-old county judge, Lina Hidalgo, whose research specialty at Harvard Law, was children of incarcerate parents.
So, Scott, what does this partisan shift mean for Harris County from a criminal justice perspective?
Scott Henson: This really could have huge implications. Harris County is the largest county in the state, obviously, but historically, it has sent a disproportionate number of people to prison, sent a disproportionate number of people to death row, and really has been sort of the epicenter of incarceration in Texas, where Texas is more or less the epicenter of mass incarceration on the planet.
Amanda Marzullo: Yeah.
Scott Henson: This is a big shift. It's amazing to have a country judge elected who's an ardent criminal justice reformer, and with Rodney Ellis there on the commissioner's court with her, I think that we can look forward to some really important policy changes moving forward.
The other big thing about this is that among the 59 judges that were ousted, were all of the misdemeanor court judges who were opposing bail reform. The folks who are actually litigating against reform have all been ousted. For the most part, the judges replacing them all support bail reform. I think we're going to see big changes in Harris County, and the change is so dramatic, I think it's hard to predict where it will start or what we'll see first, but I'm rather excited about this, and especially excite about bail reform. I feel like they've spent eight million dollars fighting that, and it's been years and years. Wow. For that opposition to just evaporate over night is awesome.
Amanda Marzullo: I know. It's really exciting. Just all of the issues that you flagged, I mean, those effect every point in a criminal case, really, from the moment of arrest all the way through disposition, and even sometimes after that. It's exciting to see what will come next.
Scott Henson: A wall turned sideways is a bridge, according to an artist featured in an exhibit currently showing if the contemporary art museum in Houston running through January 6th. Titled, "Walls Turn Sideways," artists confront the justice system. The exhibit is free to the public and includes a thought-provoking collection in a variety of media that's highly critical of all aspects of the modern justice system. As someone who's been thinking deeply about justice issues for going on a quarter century, I've never seen anything quite like it.
Mandy, what stood out to you from this collection?
Amanda Marzullo: I guess, well, one of the big things that was exciting to see was some graphs that an artist produced. Looking at the relationship between prisons and museum growth and sort of the thesis there was that mass incarceration has sort of ballooned over the same period that we've seen a rise in income and equality.
Scott Henson: Right. As well as a rise in museums, and a rise in the value of high-end art. It was all on the same graph. Kind of crazy.
Amanda Marzullo: All on the same graph. A part of her thesis was that patronage of museums is an index in a lot of ways of extreme wealth.
Scott Henson: Right.
Amanda Marzullo: And that someone's paying for this art.
Scott Henson: Just the stuff in museums.
Amanda Marzullo: An the stuff in museums, in a lot of different ways. It was really interesting. I think part of the write-up, not all of it held water, though, because they were talking about people being incarcerated for crimes of poverty, and I don't think that that's necessarily the case. There just isn't enough information but we are seeing crime in general is a product of decreased in opportunity, and that's certainly the case.
Scott Henson: I agree. That was probably a bit of a stretch, but I did think that the broader issue she raised of museums are places that hold surplus wealth, and prisons are places that hold surplus labor, and sort of making that parallel, that as you see greater and greater income disparity, you have greater surplus labor that we now house in the prisons, we have greater surplus wealth that you now house in the museums. I thought that was a fascinating way to think about that. I certainly have never considered it before.
While there's probably some nuances that it misses, it also captures something that most of us never think about in precisely that way. What's art for if not to do exactly that?
Amanda Marzullo: Yeah.
Scott Henson: One of the ones that I thought was really high impact for me anyway, was one that we talked about before about an artist in Indianapolis had created participation trophies for all of the police officers who had shot someone in Indianapolis over a period of years. This person had gone back and gotten the name of every officer and gone to some cheesy trophy shop, and had trophies made for all of them, and they were just participation awards.
One of them was a couple dancing, one of them was a bowler. For your participation in the shooting death of so-and-so, and all of them there on the trophy shelf together, the irony was just so thick. It kind of was just an amazing thing. Of course, knowing each one represents a dead person. It was a very stunning display in a very interesting way to think about that.
Amanda Marzullo: Yeah, no. This was a really dense exhibit, so we're not going to be able to get into all of it, but the creativity on a lot of these artists was extraordinarily impressive.
Scott Henson: Right. Well, and some of it was very hard-hitting in ways, you wonder if it's art or advocacy, I have to say. There was one where I thought this was, again, just a very hard-hitting set of imagery, where they had the same inmate at the Mohawk Correctional Facility. Is that New York?
Amanda Marzullo: I think so.
Scott Henson: At any rate, the same inmate over time, with visits from his entire family. It's his wife and his daughter, and young infant son. The daughter's growing up, and the son's growing up, and the wife changes a lot over time, her hairdo, her clothing styles, but the inmate has the same inmate garb, the same face, you can always recognize him even if can't always ... You're looking, is it the same woman? Is it the same child? Well, it is, but he's the constant throughout all these pictures. There's dozens and dozens of them in a row. Just very high impact piece. It's so simple, and it has artistic impact, but it's also just all the photos from visitation day.
There were several like that. There was one from Texas death row, where they had a photo of all of David Lee Powell's last effects boxed up, and then on the wall, they had the index of contents from each of the boxes, which were numbered there in the photo. It included everything from just his toiletry items and stuff everyone would have to all the books that were in his possession, you saw all the titles of the books he was reading, some of which were from deep philosophy to just trashy novels you read for fun.
I went to visit it with a friend who was visiting from Germany, and she found that just transfixing, reading through the contents of his last effects, and again, a very high impact presentation.
Amanda Marzullo: For those of our listeners who don't know, David Lee Powell was the first person who was executed in Texas after the death penalty was reinstated in the 1970s.
Scott Henson: A very significant choice of who to portray that way, because obviously there's now hundred you could portray that way.
Amanda Marzullo: Five hundred and fifty-five.
Eleven months ago, the Austin city council rejected a contract with the local police union because community leaders led by the Austin justice coalition believed it did not allow for sufficient oversight of police. Long time listeners may recall this podcast featured interviews with activist [San-sin yong-way 00:17:47] and [Suki McMan 00:17:49], union negotiator, Rhonda Lord, and others during that long and bitter local fight.
Earlier this month, police accountability advocates signed off on new contract in police oversight system in Austin ending the nearly year-long standoff. In December, Scott will sit down with lead union negotiator, Rhonda Lord, and Chaz Moore of the Austin justice coalition to talk about the politics of what happened. For now, let's focus on the details of the new policy.
Scott's wife, Kathy Mitchell, was deeply involved in Austin justice coalition's push to improve police oversight in the capital city. He asked her to update everyone on exactly what happened.
Scott Henson: So, Kathy, tell us what was accomplished as a result of this recent fight.
Kathy Mitchell: Essentially, Austin now has civilian oversight of the police force outside of the police contract. Now, not everything is outside the contract. In order for civilians to review critical incidents, they had to have access to what's called the G-file, which is the deep, dark secret file of police misconduct that's maintained at the department.
Scott Henson: It's part of the state's civil service code that 70 different municipal police departments opted into, but most departments don't have that.
Kathy Mitchell: That's correct. That does help me tell you about some of what we got in the contract. In order for that civilian oversight system to work better than the civilian oversight system we had in the past, we got more transparency into that G-file. When a person files a complaint now, unlike under the old contract, they will get to know more about the complaint as it goes through the process. That complainant will get a closeout hearing, and they will receive something in writing that says what the findings were, and what the outcome was for the police officer, as long as there was any kind of outcome for that officer. So if that officer was disciplined, a complainant can know about it, and that information will become public.
Scott Henson: In addition to the changes in the contract, there was also a new ordinance passed that creates a new oversight system for the city. Tell us what's in that.
Kathy Mitchell: That is the main thing I was talking about when I said we created civilian oversight outside the contract. There was an ordinance, and it allowed a panel to be created, it also authorizes the office of police oversight to review cases, accept complaints, and probably most importantly, lead a public dialogue about the findings that occur in the course of civilian oversight, and the systemic changes that might be needed to fix problems for everyone, and not just for that one person.
Scott Henson: Y'all had asked for a whole long list of things, and you just got a few of them. Tell us what did you get? What were some of the reforms that you wanted that weren't accomplished through this process?
Kathy Mitchell: Well, there's something called the 180-day rule. It is in the civil service state law, and it was also in the old contract, and it's still in the new contract. The 180-day rule, essentially means that if you file a complaint after 180 days have passed since the incident, the officer can not be disciplined.
Now, we did get some relief for more serious misconduct. There's arguably criminal conduct, as we know in Texas, a lot of conduct is arguably criminal conduct. The time, the 180-day clock doesn't start ticking until an assistant chief level supervisor knows about the incident. That means that things can no longer be buried at the bottom of the chain of supervisors.
With that said, there are still a lot of cases, I think, we're going to find that get blocked by the 180-day rule, and we fully intend to keep talking about that, and bring it up again in four years.
Scott Henson: If I'm not mistaken, police officers still get to see the case against them before they have to sit down and be interviewed. Is that correct? They get to receive all the evidence against them, see it with their lawyers before they're required to answer any questions when there's a bad incident.
Kathy Mitchell: Well, we did improve on that a little bit, thanks to the old contract expiring, and Austin going under civil service for almost a year. The city got used to the civil service standard on that, which is narrower. Officers get to see their own evidence, but not all the evidence. I think that the civil service standard should be the floor. Obviously, you wouldn't let any other kind of suspect see evidence against them before asking them for a statement. This is simply not credible investigation practice. For now, I think we feel good that we have improved the system over what it was before the old contract expired.
Scott Henson: Last, but not least, y'all saved the citizens of Austin a lot of money. The contract they negotiated last year was going to cost an additional 80 million plus dollars, and now it's down to 40 some odd million is the new number. Tell us how that was achieved with all this extra money you freed up.
Kathy Mitchell: Yeah, well, I think that in the course of the dialogue about oversight, the council started to become comfortable with the idea that oversight isn't a thing that you have to pay extraordinary special wages for, that it's something that should come with the job. In the course of this negotiation, a number of questionable kinds of stipends, and money offers basically just went off the table. Council didn't like it the first time around and clearly weren't going to go for it the second time.
The patrol stipend, which was a special payment offered to patrol officers for patrolling went away. There had been an offer of a one-time signing bonus for every officer, just for voting for the contract last time, that went away. There were small negotiations around things like court time, where they get under the old contract, they got four hours at time-and-a-half for the first hour showing up in court. That was negotiated heavily, and didn't come down a lot, but it did come down to three hours of time-and-a-half. Each of those things, every piece of that firm "no" on the part of the city helped us get to more value at lower costs.
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Amanda Marzullo: Hi. This is Amanda Marzullo. I'm the executive director of the Texas Defender service. Please join us for our annual luncheon on December 4th. Tickets to the event, which include valet parking, can be purchased on our website, TexasDefender.org. The Texas Defender Service is the premiere capital defense organization in Texas. Our event will cover the charismatic and engaging Stephen Bright, who's argued and won several capital cases before the US supreme court, and is a hero to defense attorneys everywhere.
Scott Henson: Next up is segment we call forensic focus, in which we discuss issues related to forensic science, crime labs, and efforts to apply modern science to a decade's old forensic methods.
This month, we're returning to a topic we've been discussing on the podcast since last November. State senator, Juan Chuy Hinojosa, veteran democrat and criminal defense attorney, whose district runs from Corpus Christi, to the Rio Grande Valley, has filed SB-130 to band hypnosis-induced testimony in Texas courtrooms.
Mandy, why is this bill necessary, and what are its chances?
Amanda Marzullo: This bill is necessary because it's still being used. We're still seeing, in cases, it's hard to know why or how, but you could make the argument that it's in cases where witness is unsure of what they saw or who they saw do it.
Scott Henson: If they were sure, no one would need to hypnotize them.
Amanda Marzullo: Okay, exactly. Yes. Those are cases where the evidence is particularly weak. Using hypnosis, there are a lot of ways to talk about it, but at a minimum, it raises questions about whether it undermines the integrity of someone's recollection rather than reinforces it. If it's being used, and it is creating further issues, it's something that requires a bill to stop.
Scott Henson: Yeah. I think it's more than just a question about the integrity. I think that at this point, if you're using hypnosis in your investigations, it's pretty much a joke. Why not just have a tarot card reading, and do that? It's about a that level.
I recently just purchased a copy of the textbook that the Texas commission on law enforcement requires on forensic hypnosis classes. It is an amazing piece of work. First off, it has this sort of weird freudian basis, where it tells us that one-eighth of the brain is the conscious mind, and seven-eights of the brain, or the subconscious mind, and the task of the hypnotist is to delve into the subconscious mind. Well, modern brain sciences told us this is all just a bunch of hokum. The book advocates that they try and get witnesses to engage in automatic writing as part ...
Well, this is like paranormal garbage. It's foolishness. They advocate getting you to go into age regression, I guess for childhood trauma or whatever.
Amanda Marzullo: How is that relevant? Wait, what?
Scott Henson: Age regression where they hypnotize you, and try and get you to think back up, pretend you're a child, then relive it.
Amanda Marzullo: So, they're actually advocating that a hypnotist for purposes of eyewitness identification, engage in a series of encounters with an individual?
Scott Henson: Well, no. Age regression, meaning that they're trying to get the person to regress to a prior age in their subconscious somehow. Right?
Amanda Marzullo: Because we all make great decisions when we're young? I'm sorry.
Scott Henson: It's bizarre-of world. It's taking all of this sort of flakey, fringe pseudo, paranormal pseudo science, and pretending that it's an investigative technique. Just over and over, there's these elements that show you everything throughout that textbook, nearly seems like it's trying to tell you, you shouldn't be using this for law enforcement.
In the curriculum for the Texas commission of law enforcement on hypnosis, there's a requirement that in order to get a certification, you have to demonstrate your proficiency at implanting post-hypnotic suggestions on your subject. Well, why in the world does a police detective need to implant memories in a witness? Why would you require them to be trained on that to get their certification? This is insanity. It is junk science, and it should be gone.
The only that that I'd add to the Chuy Hinojosa's bill, and I think it's a great idea and I'm glad they're doing it, is it's just a very simple one-liner that says you can't use this in the courtroom. We have this entire certification program that's in statute at the commission of law enforcement. They should delete all that, too. There's no way to fix it, there's no scientific basis for hypnosis.
Amanda Marzullo: You're talking about eliminating-
Scott Henson: The certification program.
Amanda Marzullo: The certification, itself,
Scott Henson: Exactly.
Amanda Marzullo: But you're speaking just about forensic hypnosis?
Scott Henson: That's right. That's right. There's no way to fix that certification. There's no scientific version of forensic hypnosis. It's all hokum.
Amanda Marzullo: If it's inadmissible, they'll stop using that.
Scott Henson: That'll end soon enough.
Amanda Marzullo: Yeah. In terms of the second piece of your question, what are the likelihoods of passage? I mean, it's always hard to pass a bill, right?
Scott Henson: Right.
Amanda Marzullo: The prospects of success are about one in five, but in this case, we're dealing with a bill that is really hard to argue against.
Scott Henson: It really is. There's so few people using it even anymore. There's only two agencies that still have a significant number of people using it. The department of public safety and Harris County Sheriff's office. Otherwise, there's hardly any left, so I do feel like there's very good chances for it, and we'll see. Thank you, Chuy Hinojosa for authoring the bill.
In our penultimate segment, let's play a quick game of fill in the blank, in which Mandy and I suggest how to complete a statement about a recent criminal justice reform story. Let's start with a story out of Austin.
A recent podcast by the national center for investigative reporting in a group called PRX, interviewed a whistle-blower from the Austin police department, a former sergeant who was in charge of the agency's sex crimes unit. She was alleged she was remove from her position because she refused to change the case status for hundreds of rape cases from unresolved to cleared, a move that she believed was justified. She was removed from the position, and her replacement changed the definitions for cleared cases, significantly bumping up the numbers. Austin police chief, Brian Manley, chalked the episode up to a difference of a opinion about the data.
So, Mandy, fill in the blank. Austin PD's clearance rate for rate is?
Amanda Marzullo: Fiction. Fiction, based on this story by the center of investigative reporting, it's very clear that they have been reclassifying a lot of rape classes as closed, when in fact they could make an arrest and didn't.
Scott Henson: Right. Then, the victim was willing to testify, and at least the case that they highlighted in the story.
Amanda Marzullo: Yeah. I think in the broadcast on KUT, I think one of the reporters from the story said they didn't get enough information to really drill into all of the cases the way they should, but where there's smoke, there's fire in this instance. If you are reclassifying upwards of 1500 rape cases in a city, that is a pattern of behavior.
Scott Henson: Right. Without us replaying everything that they did on the podcast, because it was an excellent report, there's a disconnect in chief Manley's responses that really just hasn't been resolved. I had written about this issue in the blog, and afterwards, chief Manley came up to me-
Amanda Marzullo: Really?
Scott Henson: He did. After the Austin police contract vote. He very earnestly wanted to explain to me what they'd done what they did, but he kept falling into the same sort of gaps and flaws in his argument that he did on the podcast. He would have all these sort of secondary resources, "Oh, well my supervisors assure me," or "I told them to audit a bath of cases and see effects," or whatever. Well, this woman was describing the sergeant who was the head of the sex crimes unit, was describing very specific cases that she was being pressured about, and very specific issues that she was being told to ignore. He's not addressing this at that level of detail, and it makes her come off as very credible because she has specifics, and it makes him come off as evasive because he doesn't.
I certainly hope that he's right about the definition, because it'd be terrible to think that nearly 1500 women's cases were reported as solved, but weren't really.
Amanda Marzullo: But weren't pursued.
Scott Henson: That's right. That somehow that's a systematic thing that we're doing. I hope he's correct, but you judge credibility in part based on who can talk with specificity about the issue, and knows details, and both on that podcast. When he talked to me afterward, he needed more details to be credible in the face of what was reported. His responses are simply not good enough right now.
Amanda Marzullo: Well, hopefully we'll get more information later.
Next one, when debtors prison reform legislation passed the Texas legislature in 2017, encouraging local governments to waive more fines, and allow more community service, municipal judges [inaudible 00:35:28] insisting that revenue from traffic tickets would plunge as a result. Instead, revenue from class C misdemeanor tickets increased by 7%, according to data reported by the state's office of court administration. This year, both political party platforms endorsed ending arrest for unpaid class C misdemeanor debt, using commercial collections instead of jail in the event of non-payment.
So, Scott, fill in the blank. Jailing people for traffic ticket debt is?
Scott Henson: Utterly counterproductive. To me, it was totally predictable that the reforms we had in 2017 would not reduce collections, because we were never going to collect from the people that they were trying to squeeze money out of, anyway. You can not get blood from a stone. That's really what all this has been about.
It doesn't surprise me that collections went up. I know it surprises a lot of our municipal judges around the state, because they were claiming that the sky would fall, that revenue would plunge, the cities would go bankrupt.
Amanda Marzullo: Yeah. Whenever we're talking about not collecting money from someone who can't afford it, you really have to wonder how that's really going to effect the bottom line.
Scott Henson: That's right. It didn't really make sense, even when they were saying it. I think we're going to see the same types of concerns over chairman James White's suggestion this go around, to stop arresting for nonpayment of class C misdemeanor traffic ticket debt.
Again, in reality, it's just not a thing in states like Arizona, where they have civil infractions for traffic instead of criminal offenses like we do here. Their rate of collections is essentially similar. It's not something where the form of civil versus criminal, are we going to punish you? That's not what's making people pay. They're not paying because they can't pay. It's not that they're evil people you have to punish if they don't do it.
Amanda Marzullo: Yeah, no. It doesn't make any sense. I was going to say that it's just a massive civil rights violation. I mean, the constitution has said that you shouldn't be incarcerating people because of their income status, and that's what we're doing.
Scott Henson: Here, I was sure you were going to say it was penny-wise and pound-foolish.
Amanda Marzullo: I'm trying to mix it up lately, Scott.
Scott Henson: All right. Well, it's both those things. Both a massive violation, and penny-wise and pound-foolish.
Amanda Marzullo: Yeah, and you're right. I think you said it, too, it's counterproductive that it costs the state much more money, and counties much more money to incarcerate someone for not paying money. It's just throwing money into a hole.
Scott Henson: Right. It really is. Half a million people in Texas, last year, sat out their traffic fines in jail.
Amanda Marzullo: Yeah, and all it did was cost county tax payers money.
Scott Henson: That's an amazing number, half a million people. There's only 16 million people with a drivers license.
Amanda Marzullo: The average night in custody is around $50, right? That's a conservative estimate.
Scott Henson: Your first day there is more like 200 because of all the intake costs.
Amanda Marzullo: Okay. Let's say a minimum of 200 times-
Scott Henson: Half a million.
Amanda Marzullo: That's a 100 million dollars, right there.
Scott Henson: That's right. I think we had estimated that if the average length of stay, of course some will stay just a day, some might stay many, to set out their traffic fines. If the average length of stay was two days, that's 2500 bed years of incarceration for traffic tickets. That's a lot of people sitting a lot of time in jail, at that volume.
Amanda Marzullo: Yeah. Just to beat dead horse, it makes it even more surprising that county officials would oppose this because we're talking about significant savings on their end.
Scott Henson: They're afraid of losing their money, but it's an unwarranted fear.
Amanda Marzullo: Yeah. They're going to save money.
Scott Henson: Now, it's time for our rapid fire segment we call the last [inaudible 00:39:46]. Mandy, are you ready?
Amanda Marzullo: I'm ready.
First up, President Trump has endorsed the First Step Act, which is the first federal reform bill involving sentencing or prisons in eight years, but majority leader Mitch McConnell says he may renege on his promise to vote for the legislation during the lame-duck session, putting the issue off until the next congress.
Scott, how important is this bill, and will it get a vote soon?
Scott Henson: I think there's a sense among the advocates I've talked to out of DC that if they don't get a vote pretty soon, they're worried this thing may die on the vine. Some of the new republicans coming in may oppose it, some of the new democrats coming in may want more. Right now, they know they have the votes in the senate, and if they can get the majority league bring it up, they will.
I will say, what we're hearing is that Ted Cruz is one of those who's leaning Senator Cornyn to his credit, is one of the sponsors of the legislation. Ted Cruz is one of those who we're trying to flip, so if you want to call his offices and let him know he needs to vote for this, now is an excellent time to do so.
All right. In testimony earlier this year to the Texas house corrections committee, the legislative budget board revealed that it has no idea which inmates in Texas prisons are parents of minor children, so there's no way to target those children for supportive services while their parents are inside.
House corrections committee chairman, James White has pledged to file a legislation this yer to begin tracking these youth. Mandy, why is this important?
Amanda Marzullo: Because it has implications for the welfare of untold numbers of minors. It's the same reason why separating families at the border is big deal. It's the same thing.
Scott Henson: Well, and there's really even a crime prevention element, too. I mean, children of incarcerated parents are very likely to commit crimes later on, themselves, so the more support and help you can give for them-
Amanda Marzullo: Yeah. Sorry, I'm being flippant, but yes. It's an extremely vulnerable population that we need to be aware of, and to make sure that we're providing them services, and access to their parents. I think one reason why this is really important is to ensure that they're able to maintain a relationship while their parents are on the inside.
Scott Henson: That's a great point.
Amanda Marzullo: Finally, for many years when he was at the Austin Statesman, Mike Ward was the primary journalist in Texas covering the prison system. He was the only reporter who went to the board meetings, and frankly was the only source in Texas mainstream media for prison-related news. After he left the Statesman to become Austin bureau chief at the Houston Chronicle, Ward was caught making up quotes in stories. A review of his work identified 122 people quoted in 72 stories, who could not be located.
Scott, you wrote a blog that you weren't surprised by these revelations.
Scott Henson: I have to say, I really wasn't. We have a lot of excellent, excellent journalists in this state, and Mike Ward was never one of them. Mike was a sycophant to power throughout his journalistic career. He was not someone who's really interested in covering the stories related to the Texas prison system. He was interested in having an in with power, and being their voice. One of the most amazing things about this is that it's not just that he was making up quotes, and that's this journalistic violation, he just wasn't covering the news.
There's a woman named Keri Blakinger, who we've mentioned on the podcast several time, who after Mike left that beat, she became the primary reporter, who's really covering the Texas prison system. From the moment that she took over that beat, it was as though someone had turned on a light in a dark room. All of the sudden, she has been breaking story, after major story, after major story. We've talked probably about more than a dozen of them on this podcast. Prisoners not getting dentures, prisoners having disciplinary cases fabricated against them by guards, people have been indicted because of her reporting. All of these were stories that were just sort of laying around that beat, and no one had been covering for years.
To me, that's Mike's biggest failing. The making up the quotes, yes, that's reprehensible, but equally reprehensible, was frankly covering this beat in such a one-sided way for so many years, that we really had no insight into what's going on in the prison system.
We're out of time, but we'll try to do better the next time. Until then, this is Scott Henson from Just Liberty.
Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Good-bye, 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. It's the only way it's going to happen.
Amanda Marzullo: Just a reminder, everyone, Texas Defender Service is holding its annual luncheon on December 4th in Houston. I really hope to see all of y'all there.
Scott Henson: Everyone show up if you can. It'll be a great event.
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1 comment:
Most honest art is merely philosophy displayed in a visual format. Chew on that thought.
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