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Top Stories
- Bail reform (2:00)
- Texas #cjreform legislation with bipartisan support (6:55)
- Policing bills to watch (14:20)
Home Court Advantage
- Bite marks, junk-science and innocence: The Court of Criminal Appeals' Chaney decision (20:00)
Fill in the Blank
- Prison healthcare budgets (32:00)
- First Step Act (36:00)
- Rape clearance rates and the Austin police chief (39:30)
The Last Hurrah (43:55)
- Convict leasing victims found in Sugar Land
- Forensic commission suggests using high-error-rate drug field tests
- 'Dead Suspects Loophole' to the Public Information Act
Find a transcript of the show below the jump. Enjoy!
Transcript: January 2019 Reasonably Suspicious podcast, co-hosted by Scott Henson and Amanda Marzullo
Amanda Marzullo: Hi. I'm Amanda Marzullo. Scott, with Just Liberty's founding executive director, Shakira Pumphrey being hired away by the new Texas House speaker to work on criminal justice policy. You're now the group's new interim executive director. Has the power gone to your head yet?Scott Henson: Why are you addressing me without kneeling? Explain yourself. And how dare you make eye contact. Obviously you have no experience dealing with dignitaries of my high and esteemed station. What were they teaching you peons at Cambridge?
Amanda Marzullo: I would never argue that UK students are above peon status.
Scott Henson: Well, try and keep that in mind for heaven's sake.
Scott Henson: Hi this is Scott Henson. You're listening to the January 2019 episode of Just Liberty's Reasonably Suspicious Podcast covering Texas criminal justice politics and policy. I'm pleased as punch to be here today with our good friend Amanda Marzullo, who's the executive director of the Texas Defender Service and whom I've decided is a fellow ED who will be allowed to make eye contact with me for the duration of our show today.
Amanda Marzullo: But only for the duration of the show today.
Scott Henson: Know your place, will you?
Amanda Marzullo: I would never dream to rise above it.
Scott Henson: How are you doing today, Mandy?
Amanda Marzullo: I'm great. How are you?
Scott Henson: I'm doing well. Today's episode is chock-full. We'll be talking about bail reform, bite marks, and bill filing at the Texas legislature, and lots more. Mandy, what are you looking forward to on the podcast today?
Amanda Marzullo: Bite marks. Always bite marks, Scott. I was a biter as a child and I'm a biter as an adult, man.
Scott Henson: Wow. That's maybe a little too much information but all right then. First up though, as the Texas legislature gears up we had important news last week out of all three Texas counties facing civil rights litigation of our unconstitutional bail systems. In Houston, Harris County judges issued new rules to require indigent defendants to receive attorneys at bail hearings and limit most bail eligible misdemeanor detentions to 48 hours. In Galveston, Federal Judge George Hanks dismissed the county's motion for summary judgment ruling defendants could prevail and the suit could go forward. Hanks said, "The county must provide attorneys at bail hearings and stop incarcerating people just because they cannot pay." He also found that the District Attorney, Jack Roady, set and enforced the bail schedule used in Galveston and could be held individually liable for constitutional violations it cost. In Dallas, confusion and chaos reigned as county officials showed up for a court deadline without a consensus for how they'd meet the court's demands. Local judges don't want to use the Public Defender's office to represent indigent defendants at bail hearings preferring to appoint individual attorneys themselves.
Scott Henson: All this occurs, as the Texas legislature prepares to consider bail reform legislation which is expected to be filed in the next few weeks. So, Mandy, what should listeners take away from recent developments in these cases?
Amanda Marzullo: They're many and varied actually. I think, kind of going with the low-hanging fruit first, when it comes to Dallas County and the sort of assertion that the judges should be able to appoint individual attorneys to cases without paying attention to a will and without deference to the defender office. That's something that we've seen as being problematic for a long time in Texas. And in capital cases, we've already seen it where judges are not required to appoint from a will, they're able to hand select attorneys for capital cases and what we've seen is that they're appointing attorneys who move their cases quickly without necessarily vindicating the rights of their clients.
Scott Henson: This is sort of an unfortunate, unintended consequence of the Fair Defense Act, I guess a loophole left over in the Fair Defense Act from 2001.
Amanda Marzullo: Exactly. And we anticipate that there is legislation this session to address that so that there is deference given to the Public Defender Office. In Dallas County, we do have a Public Defender Office that is overburdened. They are not adequately staffed but when it comes to capital cases they still have a wonderful track record and there is a reason why district courts should be allocating deference to them and they are not.
Scott Henson: You know, I took from these three cases that they're essentially a couple of emerging requirements that counties are going to have to conform with. I feel like that the swirl of litigation with three different counties considering it and the legislature considering it and it's being discussed in so many different venues, it's been hard to figure out exactly what's the most important question. What are going to be the pivotal issues the legislature really has to implement to fix this problem once and for all so it'll be constitutional everywhere? And to me, there are two things that seem to be emerging in all three jurisdictions. One is it's pretty certain there's going to be a requirement to allow defendants to have an attorney appointed at bail hearings, that having bail hearings where that decision about their release is made without having access to an attorney is not going to be viable. Maybe if you're simply going to release them, you don't have to have an attorney up front but if you're going to actually have a bail hearing and make that assessment you're going to have to provide them with an attorney.
Scott Henson: And the second one is, in Harris County, the judges have agreed to release most people, 85% of defendants they said and I think it was people who had bond revocations, repeat DWI, and domestic violence were the three exceptions. But beyond that, they said all other defendants if they can't make bail have to be released within 48 hours.
Amanda Marzullo: And just so our listeners are aware, we're talking about misdemeanor allegations.
Scott Henson: That's exactly right.
Amanda Marzullo: Right, like we're not talking about someone who's accused of murder necessarily. We're talking about only someone who is in the misdemeanor category.
Scott Henson: That's right, that's an important distinction. So in Harris County, they have said the misdemeanor defendants need to be released within 48 hours with those handful of exceptions. And it looks like those two requirements are really something that's bubbling up in all three jurisdictions that if you were going to try and read tea leaves and estimate, "Okay, what are the things that it looks like the courts are circling around and headed towards doing?" Those appear to be the two things that all three have in common.
Amanda Marzullo: In 2018, Just Liberty and its allies led a successful campaign to install criminal justice reform planks into the platforms of both the Democratic and Republican parties. Podcast fans may recall Just Liberty created a short jingle to promote the campaign online. Just for fun, let's listen to it.
Amanda Marzullo: Now that the 86th Texas legislature is in session we get to find out whether bipartisan support from the two major political parties translates into bipartisan legislation at the Capitol. So, Scott, tell us what bills we should expect the session that both parties have endorsed and what are their prospects?
Scott Henson: There is a lot of exciting stuff that has been endorsed by both political parties at this point. I think maybe the most high profile is probably reducing penalties for marijuana possession. I think most people would be shocked to learn that the Republican party endorsed reducing penalties from a Class B misdemeanor to a civil penalty.
Amanda Marzullo: For those optimists that are out there were not shocked.
Scott Henson: Well, maybe there are some. I think most folks who've heard that have really thought, "Wow, that's a surprising thing."
Amanda Marzullo: I don't think so.
Scott Henson: Well, okay.
Amanda Marzullo: Sorry to be like a jerk, I don't know, I'm always a jerk. So how is that different? But I think that makes a lot of sense from a limited government standpoint.
Scott Henson: Right. Well, and folks have been moving in that direction for a long, long time. National polling shows that the majority support even full-blown legalization. The Democratic party actually endorsed full-blown legalization in its platform. The Republican party endorsed reducing penalties and then to sort of complicate matters, Governor Greg Abbott endorsed a third idea which was to reduce penalties from a Class B to a Class C misdemeanor which is the equivalent of what other traffic tickets might be. So, whatever happens it looks like there's a lot of momentum and a lot of support for reducing marijuana penalties. There were about 60,000 people arrested for low-level marijuana possession last year and so that's a really big liberty issue. Other things that were included in both platforms, eliminating arrest for Class C misdemeanors so-
Amanda Marzullo: Amen.
Scott Henson: So most traffic tickets and all municipal ordinances, everything your local government criminalizes are all Class C misdemeanors and the maximum punishment is a $500 fine.
Amanda Marzullo: So, people, let's think about that. It's a $500 fine. That means no incarceration. So why would we be jailing people for something that does not result in incarceration as a punishment?
Scott Henson: That's exactly right. And what's really happened is the Supreme Court has said that officers can arrest for these things. And so, it's usually a contempt of cop situation. It's something where, yeah, you were pulled over and it's a Class C misdemeanor and normally you would get a ticket but you were rude and you said something that ticked off the cop-
Amanda Marzullo: A.K.A. that's racism on the part who has pulled them over.
Scott Henson: Racism and also just reacting to folks in a negative way. Someone asserts their rights, I'm not going to let them do it, and the law says the cop can just arrest on their discretion. And so, both political parties have endorsed eliminating those arrests and perhaps even more significant, that in and of itself is a very big deal, but both political parties endorsed ending arrest when people cannot afford to pay their Class C misdemeanor tickets. So, if you get a traffic ticket or you're cited for municipal ordinance and you can't pay instead of it going into an arrest warrant and you being taken to jail the next time you're pulled over, it would go to commercial collections just like in 22 states that treat traffic citations as a civil citation, that's how it's done and eventually the collections process might squeeze the money out of you but no one's going to lock you up. We're not going to have a debtor's prison situation and it would eliminate these annual warrant roundups where cops come around with a credit card swiper and knock on your door and say, "I'll arrest you if you don't give me money right now." Well, that's beneath police officers. That's not how we need to be using them.
Amanda Marzullo: Yeah. It's beneath everyone.
Scott Henson: So, both parties have endorsed eliminating the Driver Responsibility Program, both endorsed requiring a criminal conviction to seize assets so asset forfeiture reform, adequately funding indigent defense.
Amanda Marzullo: I don't know why they would want to do that.
Scott Henson: It is quite remarkable that both parties have suggested that the state should fund indigent defense, that's a big deal. That's not-
Amanda Marzullo: Wait, wait, wait, it sounds like a big deal but there are some of us who think like, "Wow, this is a constitutional right."
Scott Henson: Well, the question is should the state fund it? Should the county fund it? They're saying the state should pay for it all, it's a big step, it would be.
Amanda Marzullo: I'm very proud of Texas right now.
Scott Henson: There you go. And raising the age of criminal culpability from 17 to 18 where one of only four states that still prosecutes 17 year olds as adults, there's a platform plank that made it into both platforms that would require city councils or county commissioner's courts to sign off on law enforcement agencies receiving military equipment from the Department of Defense's 1033 Program.
Amanda Marzullo: Oh, yeah.
Scott Henson: So, a pretty broad array of criminal justice reforms that both parties have endorsed but that's of course just the beginning of the process and now we look to see how many of those get filed as bills, how many actually pass through but what an amazing moment when so many very significant criminal justice reform ideas have bipartisan support walking in the door. And I can't really recall another moment quite like it.
Amanda Marzullo: No, no, I am less impressed but I am equally as excited.
Scott Henson: All right then.
Amanda Marzullo: So, Texas legislatures began to file bills about a week after the election in November with dozens of criminal justice related bills filed already. So, Scott, what's been filed so far that our listeners should be paying attention to?
Scott Henson: Well, there is likely to be a lot more of interest and we'll discuss a lot of that next month I'm sure when there have been more bills filed but there have been some very interesting items filed so far that I thought we should mention and highlight. Tony Rose has filed House Bill 475 which changes some very, very old pre-Civil War language that's sort of rooting in slave catching practices about when law enforcement can arrest. The law currently says that if they decide to form a posse that citizens are required to participate, this is all hold over language from, again, the sort of slave catching era and the law as it's written actually says that police officers must arrest, shall arrest any time that they're aware of a criminal offense.
Scott Henson: Well, in practice for years and years courts have given police officers discretion to arrest. It's actually not the case anymore as it purports in the law that it's mandatory, there's a great deal of discretion and so this law would get rid of a lot of that antiquated pre-Civil War language and clarify that officers may arrest, that they actually do have discretion in the same way that, in practice, they do in the field. So, I thought that was a fascinating change and something that really we can attribute to some of the Movement for Black Lives activists sort of scouring through the statutes and sort of learning, okay, what are some of the basis for these laws that are racially discriminatory to this day? Well, it turns out they're rooted in these old, weird slave catching practices that have distorted the law and continue to distort the law.
Amanda Marzullo: I know. Hats off to Representative Rose.
Scott Henson: It's a great bill. There's another one by Representative Thompson which alters the forced standard that applies to officers and requires the departments have a policy of deescalation, a very, very big change and her bill tracks what the national experts on Police Use of Force are coming up with, the Police Executive Research Forum came up with best practices around use of force and deescalation and her bill is implementing that. And then finally, she has a bill that implements one of our platform planks that we talked about, the eliminating arrest for non-jailable offenses House Bill 482. That one's very exciting, that was in the Senator Bland Act that was filed last year. It was fought tooth and nail, the police unions were already coming out against it and that's why it was pulled out last year. She's coming back and taking a much more serious run at it this go round.
Amanda Marzullo: Yeah. But this is also a bill that has previously passed the legislature.
Scott Henson: Well, that's right. This bill passed in 2001 right after the Supreme Court originally said police officers can make these arrests, Texas said no except for certain circumstances we're going to eliminate them and Rick Perry vetoed that back in the day. That was one of the earliest bills I worked at the legislature inside.
Amanda Marzullo: So this is a bill that has had over 18 years of consensus.
Scott Henson: That's exactly right.
Amanda Marzullo: That should be the law except for whatever Rick Perry had said at the time and listeners of the podcast should be aware that one of the dissents in that case, the Atwater dissents, Scalia said, "Hey, life imprisonment for a parking ticket maybe unconstitutional but I'll take that case when it comes."
Scott Henson: Right, right. So they were really not worrying about the unintended consequences at all, they were expressly overlooking them.
Amanda Marzullo: Exactly. That is exactly what happened in the Atwater case and so it is kind of a scourge upon the United States if not Texas.
Scott Henson: That's right. And you also see in all of those opinions an assumption that well this doesn't happen very often and what they didn't foresee is that Atwater basically was like a starting gun that police began to use this as a pretext in ways that they had not before once it had been approved. And so, for example, in Austin where just this past year the city council eliminated most Class C arrests, the local police department was openly saying, "The reason we should be allowed to continue doing this is sometimes we may not be able to prove or have probable cause that someone committed some other crime but we can then arrest them on the Class C and search their car." Well, that's exactly the kind of abuse of power that the Supreme Court said, "Well, it won't happen very often," they're now arguing it's an ongoing policy, the reason we should keep this is to give them this authority.
Amanda Marzullo: Yeah, and to continue to troll upon the privacy of private citizens.
Scott Henson: That's exactly right. This is an excellent bill and I expect it to get good bipartisan support.
Amanda Marzullo: I hope so.
Scott Henson: All right, next up our segment Home Court Advantage discussing the Texas Court of Criminal Appeals and issues facing the judiciary around the Lone Star State.
Scott Henson: In December, the Court of Criminal Appeals finally granted relief in a case evaluating bite mark evidence approving Steven Chaney's habeas corpus writ and declaring him actually innocent in a hotly contested ruling. In that case, jurors believed expert bite mark testimony over numerous alibi witnesses who the court majority now believes were telling the truth. The court sat on Chaney's writ for four years before issuing this decision but when they finally ruled their judgment invalidated bite mark evidence in Texas criminal cases going forward and opened the door to challenges in old cases where bite mark evidence was essential to the conviction. The case also featured Judge Sharon Keller calling for a new, more stringent standard for declaring defendants actually innocent suggesting it be elevated from clear and convincing to beyond a reasonable doubt. So, Mandy, tell our listeners about the Chaney case and the implications for both the court and forensic science issues going forward.
Amanda Marzullo: Wow. There's a lot to unpack here. When it comes to issues of forensics, I think the big communication to the lower courts is to conduct hearings on Daubert and to enter findings about whether the forensic evidence proffered meets that evidentiary burden, that it's incumbent on the trial courts to make that type of determination instead of sort of rubber stamping whatever's proffered by the prosecution.
Scott Henson: Wow. You and I see this very, very differently. I actually see this as kind of an invalidation of the Daubert system entirely. And then, frankly, when we first created the junk science for it, that's how that was seen too. My belief has always been that Daubert is completely inadequate in the criminal justice realm to keep bad evidence out of the courtroom. I think that in the civil realm where both sides are actually well-funded and you have good lawyers and everybody has experts you can keep bad evidence out there but in the criminal realm they just let it in because it's always been in.
Scott Henson: The Court of Criminal Appeals under a front-end Daubert challenge had reaffirmed bite mark evidence as recently as 2012 and the idea behind the junk science writ was if you're not going to keep it out on the front end, on the back end let's provide some means to challenge it and then once it's invalidated you still can't use that going forward after that and that's what's happened here. They can't use the bite mark evidence now going forward and now there will be a basis to go look at the old cases.
Amanda Marzullo: Yes and no. I think that part of what's happening is that now that we've had sort of a demonstration that the evidence that is let in on the criminal realm is clearly doesn't pass muster in the habeas realm, that it is a calling upon trial courts to new vigilance. And I think part of the problem that you just demonstrated in your comparison between civil courts and criminal ones is part of the problem is that there really shouldn't be a distinction between the two.
Scott Henson: Well, forensic science is just a bizarre thing. Most of it is not science at all, most of it are just things that cops who are not scientists just began doing to try and convict people. Fingerprint comparison, ballistics comparison, blood spatter evidence, no scientist came up with any of those things, there's no science involved. There's no scientific method applied to them. There's things that a hundred years ago cops started doing so they could accuse someone and the courts let it in and then future courts said, "Oh, the last court let it in and so there's precedence so I'll let it in too," and we've done it over and over and over.
Amanda Marzullo: Yeah. And then over time these things have snowballed and I think that part of the lesson from Chaney is that courts should just have a common sense application to the evidence that's in front of them regardless of the nature of the proceedings and that if they wouldn't let it in in a civil proceeding, they sure as hell shouldn't let it in in a criminal one.
Scott Henson: I hope that that's the case. Now Peter Neufeld said to me once that when you have an illness and you go to the doctor for a diagnosis and they run a blood test, the result of that blood test is going to be the same whether it's performed in Maine or whether it's performed in Houston but that's not the case with forensic science at all. A lot of this stuff is very subjective and it's very dependent on which analyst looks at it or which lab looks at or which standards they're using.
Amanda Marzullo: And hopefully over time we get to a point where the information that is also provided to the scientists that are performing these tests is also controlled. I think that's part of the problem that we've been seeing in Texas.
Scott Henson: And that's certainly the case in the bite mark evidence where some of these analysts actually brag that they've seen all this other evidence about the case and that helped corroborate it. Well, that's the opposite of what it should be doing really. You should not see any of that, you should be looking at it independently and only evaluating the comparisons between these two items. You shouldn't have the context for the other. But let's talk real quick about, just a pivot, Judge Keller's remarkable concurrence where she suggests that we should alter the standard for actual innocence in Texas. What'd you think about that?
Amanda Marzullo: I agree with, well unsurprisingly, I agree with Judge Alcala's concurrence which responds to that which means-
Scott Henson: Which that's probably why you hired her, I'm guessing.
Amanda Marzullo: Listeners should know that I did not know about this concurrence at the time that I made a job offer to Judge Elsa Alcala who is a wonderful person.
Scott Henson: And who, by the way, just for clarification is going to lobby on behalf of the Texas Defender Service at the Texas legislature this time for criminal justice reform. It's really big, great news and congratulations, by the way, that was really a coup to get her to do that.
Amanda Marzullo: I am extremely grateful to Judge Elsa Alcala for coming aboard but aside from that I think Judge Alcala and Richardson both make excellent points in their concurrences that this is a Herculean standard to begin with and not so much from Judge Keller's concurrence doesn't make too many points aside from citing concerns that the Court of Criminal Appeals should be basically declaring people not guilty, in so many words, as opposed to actually innocent. And it's really Judge Urie's concurrence where he sort of talks about intrigue from these ideas from Judge Keller and points to an analogy between a jury declaring someone not guilty and the Court of Criminal Appeals declaring someone entitled to habeas relief. And the problem is is that that analogy just doesn't hold muster over time. You're dealing with two people who have had different levels of process against them that if a jury acquits someone of the charges against them, that is someone who is not been incarcerated.
Scott Henson: That's right. And that's a signal to the world that this person didn't do it.
Amanda Marzullo: Yeah. A jury could not find that they did it.
Scott Henson: That's right.
Amanda Marzullo: Whereas someone who is subsequently incarcerated, declared guilty, incarcerated and then entitled to habeas relief after the fact. That is someone who has incurred a different level of harm from the criminal justice system and that is someone who should be entitled to a greater level of relief.
Scott Henson: I have to admit I was a little disappointed in Judge Keller's concurrence. I understand where it's coming from. I've read her views over the years and so I'm not that surprised but I was disappointed. I feel like that she's engaged in a process of moving the goalpost here. At the time that they approved the Elizondo opinion, which is what established Texas actual innocence standard, I think everyone on the courts believed that it would actually be rarely used. In the decision, they said that you would have to meet this, they called it a Herculean standard to meet it. And for the first few years that's exactly how it was treated. You might get relief but very few people got actually innocence relief.
Scott Henson: Well, the first thing that happened was the DNA cases showed up and there were dozens and dozens of DNA cases where, in fact, you really could meet that Herculean standard. All of a sudden, there really were actually innocent people. And then we passed the junk science writ. And once you pulled the junk science out of some of these old convictions, you started to see more cases like Chaney's where absent the bad forensic evidence, there's no basis at all to find any culpability here and this person is actually, actually innocent. In Chaney's case there were nine alibi witnesses that the jury disbelieved in favor of the bite mark evidence. Well, Judge Keller's now wanting to move the goalpost because quite a few people are able to meet that Herculean standard now. She wants to now say, "Well, let's change it." So, just like I originally wanted, very few people will ever get to actually benefit from relief here.
Scott Henson: Often, I have called the faction of the court Judge Keller leads the government always wins faction and there's four of them on there that essentially side with the prosecution nearly all the time. Two of them split with Judge Keller here and that was a very significant aspect of this decision.
Amanda Marzullo: Except that the government sided with the inmate in this case.
Scott Henson: And that was my point is that normally I have labeled her as part of the government always wins faction. This puts a different light on this because the prosecution actually sided with the defendant. They said, "You deserve actual innocence relief here." And I think the reason I was disappointed is that I felt like Judge Keller's opinion wasn't just about, "I want the government to win," which is her usual position. She really wanted Steven Chaney to lose. She really wanted him to not get relief, to not be declared actually innocent, to not be compensated.
Amanda Marzullo: I don't even think she was saying that it's not relief, right. She thinks that lifting the conviction is enough.
Scott Henson: Right, right but she didn't want him to benefit from any compensation, that was important to her in a way that seemed just a little too negative, a little too harsh, a little too personal.
Amanda Marzullo: Yeah. And from those lawyers who are listening, probably not far enough. That when it comes to tort law, when you sue somebody you're trying to be made whole and that failing to recognize Chaney's innocence on the part of the state would be failing to make him whole. It would maybe put him where he was if the state hadn't incarcerated him post-judgment.
Scott Henson: Except they did.
Amanda Marzullo: But they they did, exactly. And that he clearly would've lost his job, he lost his contact with his family.
Scott Henson: He lost more than we can ever imagine. That's what he lost. When you're incarcerated for a crime you did not commit, you have lost more than anyone who's not been in that situation can ever imagine.
Amanda Marzullo: So, the show's already pretty full but there's a lot to talk about. So let's play a quick game of fill in the blank so we can assess some of the issues Scott just couldn't bear to keep off the list. Starting with funding for prisoner healthcare in the Texas Department of Criminal Justice.
Amanda Marzullo: TDCJ says it needs 247 million dollars more in its healthcare budget just to provide present levels of services, however, the Texas House allotted only an additional 160 million dollars for prisoner healthcare in its filed version for its budget while the Senate actually cut funding by 1.3 million. So, Scott, fill in the blank. If legislatures don't want to pay more prisoner healthcare, they should.
Scott Henson: They should incarcerate fewer people. This is now the new normal. We now, every session, are going to see nine figure increases in prisoner healthcare costs, 150 million, 250 million. Every biennium we're going to see this much of an increase unless the Texas legislature chooses to reduce the number of people incarcerated. There is no more cutting. We have done all of the cutting to the bone that we possibly can. They have tried to get prisoner's families to pay for inmate healthcare by taking money out of their commissary accounts, that didn't bring in nearly the amount of money that they had anticipated that it would when they passed the rule. There's nothing else they can do to reduce these increases in healthcare spending except provide healthcare for fewer people. And that's just where we are now. If they want to pretend otherwise ...
Scott Henson: What we've been doing the last few sessions is underfunding healthcare, again, by 160 million last time, couple hundred million next time maybe, and then they come back the beginning of the next legislature session and have what's called a supplemental budget which is all the things that they'd underfunded the last time. It's been in the nine figures biennium after biennium after biennium. They underfund healthcare, come back and have to pay some huge sum at the beginning of every session and then underfund it again the next go round.
Amanda Marzullo: Yeah.
Scott Henson: So that's where we've been. It's not a solution. If you don't want to pay the money, incarcerate fewer people.
Amanda Marzullo: Yeah. And my alternative to that is just to expand Medicaid, that if you're not going to incarcerate fewer people you should make medical care available to a bigger purview of people.
Scott Henson: Well, and for starters if they expanded Medicaid, it would pay for inpatient hospital care for Texas prisoners which is something that right now Texas taxpayers pay for 100%, the Feds would pay for 90% of those inpatient hospital costs if we expanded Medicaid. The other big things are mental healthcare and drug treatment, expanding both of those through Medicaid where you can access it without having to go through the criminal justice system would be a big thing. Yours is probably a smarter solution than mine. Mine's just the, "Oh my God, we can't keep paying for this. Let's have fewer people so we don't pay for all their healthcare." But expanding Medicaid will probably be the smarter method. Probably my method maybe the more politically viable, more politically possible in 2019. Who knows?
Amanda Marzullo: Who knows? I hope not but you're probably right.
Scott Henson: In Congress during the lame-duck session, the First Step Act passed with overwhelming bipartisan support, the first prison reform legislation approved by Congress in a generation. Mandy, fill in the blank. Passage of the First Step Act should encourage Texas legislatures to ...
Amanda Marzullo: Pass their own version of this legislation. TDS has been working with numbers in the Texas legislature to develop our own version of this legislation which would allow individuals to be rescindents according to new provisions of the law based on consent of not only the prosecution, the defense, but also the trial court who presided over someone's conviction-
Scott Henson: That's an awesome idea.
Amanda Marzullo: No, no, it is an awesome idea and it also comes with a more streamlined approach than the First Step Act.
Scott Henson: The First Step Act reconsideration was very bureaucratic and had a lot of sort of new systems and stuff it had to implement.
Amanda Marzullo: Yeah, no, exactly. It had its own commission that would be reviewing these sentences, there was a lot of red tape entailed and our case, we're talking about local control. If you're able to have consent from the prosecution, and we're talking about the same office that presides someone's conviction and sentence is able to consent someone's re-sentencing ... We're not even talking about acquittal or necessarily being released under the law, we're talking about just a simple re-sentencing then someone can be re-sentenced. It's a-
Scott Henson: That's a really cool idea.
Amanda Marzullo: You know and it's one that I am very, very proud of in terms of its elegant.
Scott Henson: That is a great solution and it's great to take some of these ideas in the First Step Act and say, "Hey, how can we implement some of these in Texas? How can we take some of these bipartisan reforms that we've already seen get momentum at the federal level and implement here?" I completely love it. I would say that passage of the First Step Act should encourage Texas legislatures to support criminal justice reform if you want to align yourself with the President in the next election.
Amanda Marzullo: Yeah.
Scott Henson: With the new House majority for the Democrats at the federal level, the First Step Act may well be the last piece of legislation President Trump signs before the next election.
Amanda Marzullo: So what was our Texas version of that by implication is even stronger in a lot of ways.
Scott Henson: There you go. And even more broadly, I think that we can see that criminal justice reform is going to be one of the things that the President is running on during his reelection campaign and Republicans, I think, are given a big incentive here to follow suit and to find criminal justice reform they can support here whether that's Governor Abbott's suggestion to reduce penalties for low-level marijuana offenses or the Texas Public Posse Foundation suggestions for how to reduce state jail incarceration. I think that the President sort of coming out so strongly in favor of criminal justice reform does show that folks that want to align themselves with his agenda going forward really ought to get on the train, that's what I would take from that.
Amanda Marzullo: Hopefully.
Amanda Marzullo: So, last one, Austin Police Chief Brian Manley held a press conference at the end of the day on New Year's Eve to reveal results of a Department of Public Safety audit. The review was commissioned after a whistle-blower, a former Austin PD sergeant alleged in a national podcast that she was removed as a head of the Sex Crimes Unit for refusing to fudge clearance rate results. Chief Manley said the audit didn't evaluate the whistle-blower's claims but that's not entirely true. The DPS confirmed that the deposed sergeant classified cases correctly and that the agency began to misrepresent clearance rate after she left. Chief Manley now says a third party will independently evaluate APD sexual assault cases to make sure that they were cleared properly and that no one will face discipline for misclassifying cases. So, Scott, fill in the blank. Austin-ites should feel blank about the police chief's handling of this episode.
Scott Henson: They should feel disappointed. Honestly, he has mishandled this absolutely from the get go. He started by blaming the victims and claiming that all this was happening because victims were refusing to cooperate with police, that turned out to be 100% false. The police department was miscategorizing these cases and those victims in fact had not refused to cooperate. He was openly misstating their positions and honestly he owes them an apology. I really feel like he will not have begun to rectify this situation until he admits, "I was wrong to blame rape victims for not participating with the investigation." It was a lie. He told it for self-interested reasons. He should never have said it and now he should apologize. It was absolutely awful.
Scott Henson: Beyond that, the idea that you're going to get the results from this DPS audit on December 13 and you're going to wait until 4:45 in the afternoon on New Year's Eve to release these results at a press conference is absolutely disingenuous. It is just malfeasance. I can't believe, this frankly is something where if I were on the city council I would be out for this guy's head at this point or I would really want an explanation. If not, that's just bad faith. That's just trying to play hide the ball and to this day he has not actually owning up to his responsibility. He is insisting that somehow they didn't do anything wrong, "Oh, the DPS didn't say anything about the whistle-blower," who was right, who was wrong. Well, you've already admitted it all. You admitted she was removed because she wouldn't use your definition.
Scott Henson: The only question was was she right or was you right about what is the right definition. We now know for a fact it was her. She was right. You were wrong. You removed her from her job for trying to use the correct definition and now you're wanting to pretend that somehow you couldn't have known. No, no, this was a bad act. This is a bad thing. And I know that Art Acevedo, the prior police chief, is really the person who did that. He's the person who pressured her out and he's now police chief in Houston and that's the person who told this person, "You have to fudge these numbers or we're going to replace you." She took a principled stand and said no and so he did, he got rid of her and replaced her. He's now in Houston.
Scott Henson: But Chief Manley's response to this scandal has made the scandal his own. Him blaming the victims and then refusing to accept accountability, to me, is just about as bad as it gets and he really needs to have some big mea culpas very, very soon where he owns the responsibility here or I don't know that if I were on the city council I would continue to support him being police chief.
Amanda Marzullo: No, no, thank you, Scott. I don't think there's much to add to this.
Scott Henson: Now it's time for our rapid fire segment we call The Last Hoorah. Mandy, are you ready?
Amanda Marzullo: I am ready.
Scott Henson: First, in Sugar Land, the county seat of Fort Bend County named for the Imperial sugar company that dominated the area's economy for decades, authorities discovered that 95 graves of African Americans employed by the company and convict leasing arrangements who are buried where they dropped instead of entombed in an adjacent graveyard reserved for whites. Mandy, what does this dark and hidden history tell us 100 years later?
Amanda Marzullo: This is just a window into the inhumanity of our prison system and its origins. It's something to think about as we assess our prison system going forward. Next, the Forensic Science Commission in December said that field tests for drugs used by hundreds of Texas police departments have high error rates but declined to suggest banning them because they're commonly used and science has developed no alternative. So, Scott, was that the right conclusion?
Scott Henson: I think that was a really terrible suggestion. They basically concluded yes, these field tests are junk science that have high error rates that are causing people to be falsely arrested and convicted and then said we should keep using them because there's no alternative with lower error rates. Why not just stop using the junk science like the Houston PD did and let the chips fall where they may? Why do we have to have a replacement before we can stop using something that we know science doesn't support? All right, last one. Activists in Austin are in an uproar because the county sheriff is withholding evidence in an inmate's death invoking what the press is called the Dead Suspect's Loophole in the Public Information Act which lets law enforcement withhold records in cases that were never prosecuted whether because the suspect died or some other reason. Mandy, is there any good reason the public shouldn't see these records just because prosecutors couldn't secure a conviction?
Amanda Marzullo: No. It doesn't make any sense. I can't think of any justification to withhold this evidence whether someone's actually suspected of a crime at the time of their death or not.
Scott Henson: All right. We're out of time but we'll try and do better the next time. Until then, I'm Scott Henson.
Amanda Marzullo: And I'm Amanda Marzullo. Goodbye and thanks for listening.
Scott Henson: You can subscribe to the Reasonably Suspicious podcast on iTunes, Google Play, or SoundCloud. We'll be back next month with more hopefully better news. Until then, keep fighting for criminal justice reform. It's the only way it's going to happen.
Amanda Marzullo: And a special shout out to the Honorable Elsa Alcala, formerly a member of the Texas Court of Criminal Appeals who is now TDS's policy director.
Scott Henson: And also to Shakira Pumphrey, my former boss, who's now moved on to the Texas House Speaker's Office. Congratulations and it'll be difficult to fill your shoes.
Transcribed by Rev.com. Edited lightly for accuracy and clarity by Scott Henson.
Transcript: January 2019 Reasonably Suspicious podcast, co-hosted by Scott Henson and Amanda Marzullo
Amanda Marzullo: Hi. I'm Amanda Marzullo. Scott, with Just Liberty's founding executive director, Shakira Pumphrey being hired away by the new Texas House speaker to work on criminal justice policy. You're now the group's new interim executive director. Has the power gone to your head yet?Scott Henson: Why are you addressing me without kneeling? Explain yourself. And how dare you make eye contact. Obviously you have no experience dealing with dignitaries of my high and esteemed station. What were they teaching you peons at Cambridge?
Amanda Marzullo: I would never argue that UK students are above peon status.
Scott Henson: Well, try and keep that in mind for heaven's sake.
Scott Henson: Hi this is Scott Henson. You're listening to the January 2019 episode of Just Liberty's Reasonably Suspicious Podcast covering Texas criminal justice politics and policy. I'm pleased as punch to be here today with our good friend Amanda Marzullo, who's the executive director of the Texas Defender Service and whom I've decided is a fellow ED who will be allowed to make eye contact with me for the duration of our show today.
Amanda Marzullo: But only for the duration of the show today.
Scott Henson: Know your place, will you?
Amanda Marzullo: I would never dream to rise above it.
Scott Henson: How are you doing today, Mandy?
Amanda Marzullo: I'm great. How are you?
Scott Henson: I'm doing well. Today's episode is chock-full. We'll be talking about bail reform, bite marks, and bill filing at the Texas legislature, and lots more. Mandy, what are you looking forward to on the podcast today?
Amanda Marzullo: Bite marks. Always bite marks, Scott. I was a biter as a child and I'm a biter as an adult, man.
Scott Henson: Wow. That's maybe a little too much information but all right then. First up though, as the Texas legislature gears up we had important news last week out of all three Texas counties facing civil rights litigation of our unconstitutional bail systems. In Houston, Harris County judges issued new rules to require indigent defendants to receive attorneys at bail hearings and limit most bail eligible misdemeanor detentions to 48 hours. In Galveston, Federal Judge George Hanks dismissed the county's motion for summary judgment ruling defendants could prevail and the suit could go forward. Hanks said, "The county must provide attorneys at bail hearings and stop incarcerating people just because they cannot pay." He also found that the District Attorney, Jack Roady, set and enforced the bail schedule used in Galveston and could be held individually liable for constitutional violations it cost. In Dallas, confusion and chaos reigned as county officials showed up for a court deadline without a consensus for how they'd meet the court's demands. Local judges don't want to use the Public Defender's office to represent indigent defendants at bail hearings preferring to appoint individual attorneys themselves.
Scott Henson: All this occurs, as the Texas legislature prepares to consider bail reform legislation which is expected to be filed in the next few weeks. So, Mandy, what should listeners take away from recent developments in these cases?
Amanda Marzullo: They're many and varied actually. I think, kind of going with the low-hanging fruit first, when it comes to Dallas County and the sort of assertion that the judges should be able to appoint individual attorneys to cases without paying attention to a will and without deference to the defender office. That's something that we've seen as being problematic for a long time in Texas. And in capital cases, we've already seen it where judges are not required to appoint from a will, they're able to hand select attorneys for capital cases and what we've seen is that they're appointing attorneys who move their cases quickly without necessarily vindicating the rights of their clients.
Scott Henson: This is sort of an unfortunate, unintended consequence of the Fair Defense Act, I guess a loophole left over in the Fair Defense Act from 2001.
Amanda Marzullo: Exactly. And we anticipate that there is legislation this session to address that so that there is deference given to the Public Defender Office. In Dallas County, we do have a Public Defender Office that is overburdened. They are not adequately staffed but when it comes to capital cases they still have a wonderful track record and there is a reason why district courts should be allocating deference to them and they are not.
Scott Henson: You know, I took from these three cases that they're essentially a couple of emerging requirements that counties are going to have to conform with. I feel like that the swirl of litigation with three different counties considering it and the legislature considering it and it's being discussed in so many different venues, it's been hard to figure out exactly what's the most important question. What are going to be the pivotal issues the legislature really has to implement to fix this problem once and for all so it'll be constitutional everywhere? And to me, there are two things that seem to be emerging in all three jurisdictions. One is it's pretty certain there's going to be a requirement to allow defendants to have an attorney appointed at bail hearings, that having bail hearings where that decision about their release is made without having access to an attorney is not going to be viable. Maybe if you're simply going to release them, you don't have to have an attorney up front but if you're going to actually have a bail hearing and make that assessment you're going to have to provide them with an attorney.
Scott Henson: And the second one is, in Harris County, the judges have agreed to release most people, 85% of defendants they said and I think it was people who had bond revocations, repeat DWI, and domestic violence were the three exceptions. But beyond that, they said all other defendants if they can't make bail have to be released within 48 hours.
Amanda Marzullo: And just so our listeners are aware, we're talking about misdemeanor allegations.
Scott Henson: That's exactly right.
Amanda Marzullo: Right, like we're not talking about someone who's accused of murder necessarily. We're talking about only someone who is in the misdemeanor category.
Scott Henson: That's right, that's an important distinction. So in Harris County, they have said the misdemeanor defendants need to be released within 48 hours with those handful of exceptions. And it looks like those two requirements are really something that's bubbling up in all three jurisdictions that if you were going to try and read tea leaves and estimate, "Okay, what are the things that it looks like the courts are circling around and headed towards doing?" Those appear to be the two things that all three have in common.
Amanda Marzullo: In 2018, Just Liberty and its allies led a successful campaign to install criminal justice reform planks into the platforms of both the Democratic and Republican parties. Podcast fans may recall Just Liberty created a short jingle to promote the campaign online. Just for fun, let's listen to it.
Amanda Marzullo: Now that the 86th Texas legislature is in session we get to find out whether bipartisan support from the two major political parties translates into bipartisan legislation at the Capitol. So, Scott, tell us what bills we should expect the session that both parties have endorsed and what are their prospects?
Scott Henson: There is a lot of exciting stuff that has been endorsed by both political parties at this point. I think maybe the most high profile is probably reducing penalties for marijuana possession. I think most people would be shocked to learn that the Republican party endorsed reducing penalties from a Class B misdemeanor to a civil penalty.
Amanda Marzullo: For those optimists that are out there were not shocked.
Scott Henson: Well, maybe there are some. I think most folks who've heard that have really thought, "Wow, that's a surprising thing."
Amanda Marzullo: I don't think so.
Scott Henson: Well, okay.
Amanda Marzullo: Sorry to be like a jerk, I don't know, I'm always a jerk. So how is that different? But I think that makes a lot of sense from a limited government standpoint.
Scott Henson: Right. Well, and folks have been moving in that direction for a long, long time. National polling shows that the majority support even full-blown legalization. The Democratic party actually endorsed full-blown legalization in its platform. The Republican party endorsed reducing penalties and then to sort of complicate matters, Governor Greg Abbott endorsed a third idea which was to reduce penalties from a Class B to a Class C misdemeanor which is the equivalent of what other traffic tickets might be. So, whatever happens it looks like there's a lot of momentum and a lot of support for reducing marijuana penalties. There were about 60,000 people arrested for low-level marijuana possession last year and so that's a really big liberty issue. Other things that were included in both platforms, eliminating arrest for Class C misdemeanors so-
Amanda Marzullo: Amen.
Scott Henson: So most traffic tickets and all municipal ordinances, everything your local government criminalizes are all Class C misdemeanors and the maximum punishment is a $500 fine.
Amanda Marzullo: So, people, let's think about that. It's a $500 fine. That means no incarceration. So why would we be jailing people for something that does not result in incarceration as a punishment?
Scott Henson: That's exactly right. And what's really happened is the Supreme Court has said that officers can arrest for these things. And so, it's usually a contempt of cop situation. It's something where, yeah, you were pulled over and it's a Class C misdemeanor and normally you would get a ticket but you were rude and you said something that ticked off the cop-
Amanda Marzullo: A.K.A. that's racism on the part who has pulled them over.
Scott Henson: Racism and also just reacting to folks in a negative way. Someone asserts their rights, I'm not going to let them do it, and the law says the cop can just arrest on their discretion. And so, both political parties have endorsed eliminating those arrests and perhaps even more significant, that in and of itself is a very big deal, but both political parties endorsed ending arrest when people cannot afford to pay their Class C misdemeanor tickets. So, if you get a traffic ticket or you're cited for municipal ordinance and you can't pay instead of it going into an arrest warrant and you being taken to jail the next time you're pulled over, it would go to commercial collections just like in 22 states that treat traffic citations as a civil citation, that's how it's done and eventually the collections process might squeeze the money out of you but no one's going to lock you up. We're not going to have a debtor's prison situation and it would eliminate these annual warrant roundups where cops come around with a credit card swiper and knock on your door and say, "I'll arrest you if you don't give me money right now." Well, that's beneath police officers. That's not how we need to be using them.
Amanda Marzullo: Yeah. It's beneath everyone.
Scott Henson: So, both parties have endorsed eliminating the Driver Responsibility Program, both endorsed requiring a criminal conviction to seize assets so asset forfeiture reform, adequately funding indigent defense.
Amanda Marzullo: I don't know why they would want to do that.
Scott Henson: It is quite remarkable that both parties have suggested that the state should fund indigent defense, that's a big deal. That's not-
Amanda Marzullo: Wait, wait, wait, it sounds like a big deal but there are some of us who think like, "Wow, this is a constitutional right."
Scott Henson: Well, the question is should the state fund it? Should the county fund it? They're saying the state should pay for it all, it's a big step, it would be.
Amanda Marzullo: I'm very proud of Texas right now.
Scott Henson: There you go. And raising the age of criminal culpability from 17 to 18 where one of only four states that still prosecutes 17 year olds as adults, there's a platform plank that made it into both platforms that would require city councils or county commissioner's courts to sign off on law enforcement agencies receiving military equipment from the Department of Defense's 1033 Program.
Amanda Marzullo: Oh, yeah.
Scott Henson: So, a pretty broad array of criminal justice reforms that both parties have endorsed but that's of course just the beginning of the process and now we look to see how many of those get filed as bills, how many actually pass through but what an amazing moment when so many very significant criminal justice reform ideas have bipartisan support walking in the door. And I can't really recall another moment quite like it.
Amanda Marzullo: No, no, I am less impressed but I am equally as excited.
Scott Henson: All right then.
Amanda Marzullo: So, Texas legislatures began to file bills about a week after the election in November with dozens of criminal justice related bills filed already. So, Scott, what's been filed so far that our listeners should be paying attention to?
Scott Henson: Well, there is likely to be a lot more of interest and we'll discuss a lot of that next month I'm sure when there have been more bills filed but there have been some very interesting items filed so far that I thought we should mention and highlight. Tony Rose has filed House Bill 475 which changes some very, very old pre-Civil War language that's sort of rooting in slave catching practices about when law enforcement can arrest. The law currently says that if they decide to form a posse that citizens are required to participate, this is all hold over language from, again, the sort of slave catching era and the law as it's written actually says that police officers must arrest, shall arrest any time that they're aware of a criminal offense.
Scott Henson: Well, in practice for years and years courts have given police officers discretion to arrest. It's actually not the case anymore as it purports in the law that it's mandatory, there's a great deal of discretion and so this law would get rid of a lot of that antiquated pre-Civil War language and clarify that officers may arrest, that they actually do have discretion in the same way that, in practice, they do in the field. So, I thought that was a fascinating change and something that really we can attribute to some of the Movement for Black Lives activists sort of scouring through the statutes and sort of learning, okay, what are some of the basis for these laws that are racially discriminatory to this day? Well, it turns out they're rooted in these old, weird slave catching practices that have distorted the law and continue to distort the law.
Amanda Marzullo: I know. Hats off to Representative Rose.
Scott Henson: It's a great bill. There's another one by Representative Thompson which alters the forced standard that applies to officers and requires the departments have a policy of deescalation, a very, very big change and her bill tracks what the national experts on Police Use of Force are coming up with, the Police Executive Research Forum came up with best practices around use of force and deescalation and her bill is implementing that. And then finally, she has a bill that implements one of our platform planks that we talked about, the eliminating arrest for non-jailable offenses House Bill 482. That one's very exciting, that was in the Senator Bland Act that was filed last year. It was fought tooth and nail, the police unions were already coming out against it and that's why it was pulled out last year. She's coming back and taking a much more serious run at it this go round.
Amanda Marzullo: Yeah. But this is also a bill that has previously passed the legislature.
Scott Henson: Well, that's right. This bill passed in 2001 right after the Supreme Court originally said police officers can make these arrests, Texas said no except for certain circumstances we're going to eliminate them and Rick Perry vetoed that back in the day. That was one of the earliest bills I worked at the legislature inside.
Amanda Marzullo: So this is a bill that has had over 18 years of consensus.
Scott Henson: That's exactly right.
Amanda Marzullo: That should be the law except for whatever Rick Perry had said at the time and listeners of the podcast should be aware that one of the dissents in that case, the Atwater dissents, Scalia said, "Hey, life imprisonment for a parking ticket maybe unconstitutional but I'll take that case when it comes."
Scott Henson: Right, right. So they were really not worrying about the unintended consequences at all, they were expressly overlooking them.
Amanda Marzullo: Exactly. That is exactly what happened in the Atwater case and so it is kind of a scourge upon the United States if not Texas.
Scott Henson: That's right. And you also see in all of those opinions an assumption that well this doesn't happen very often and what they didn't foresee is that Atwater basically was like a starting gun that police began to use this as a pretext in ways that they had not before once it had been approved. And so, for example, in Austin where just this past year the city council eliminated most Class C arrests, the local police department was openly saying, "The reason we should be allowed to continue doing this is sometimes we may not be able to prove or have probable cause that someone committed some other crime but we can then arrest them on the Class C and search their car." Well, that's exactly the kind of abuse of power that the Supreme Court said, "Well, it won't happen very often," they're now arguing it's an ongoing policy, the reason we should keep this is to give them this authority.
Amanda Marzullo: Yeah, and to continue to troll upon the privacy of private citizens.
Scott Henson: That's exactly right. This is an excellent bill and I expect it to get good bipartisan support.
Amanda Marzullo: I hope so.
Scott Henson: All right, next up our segment Home Court Advantage discussing the Texas Court of Criminal Appeals and issues facing the judiciary around the Lone Star State.
Scott Henson: In December, the Court of Criminal Appeals finally granted relief in a case evaluating bite mark evidence approving Steven Chaney's habeas corpus writ and declaring him actually innocent in a hotly contested ruling. In that case, jurors believed expert bite mark testimony over numerous alibi witnesses who the court majority now believes were telling the truth. The court sat on Chaney's writ for four years before issuing this decision but when they finally ruled their judgment invalidated bite mark evidence in Texas criminal cases going forward and opened the door to challenges in old cases where bite mark evidence was essential to the conviction. The case also featured Judge Sharon Keller calling for a new, more stringent standard for declaring defendants actually innocent suggesting it be elevated from clear and convincing to beyond a reasonable doubt. So, Mandy, tell our listeners about the Chaney case and the implications for both the court and forensic science issues going forward.
Amanda Marzullo: Wow. There's a lot to unpack here. When it comes to issues of forensics, I think the big communication to the lower courts is to conduct hearings on Daubert and to enter findings about whether the forensic evidence proffered meets that evidentiary burden, that it's incumbent on the trial courts to make that type of determination instead of sort of rubber stamping whatever's proffered by the prosecution.
Scott Henson: Wow. You and I see this very, very differently. I actually see this as kind of an invalidation of the Daubert system entirely. And then, frankly, when we first created the junk science for it, that's how that was seen too. My belief has always been that Daubert is completely inadequate in the criminal justice realm to keep bad evidence out of the courtroom. I think that in the civil realm where both sides are actually well-funded and you have good lawyers and everybody has experts you can keep bad evidence out there but in the criminal realm they just let it in because it's always been in.
Scott Henson: The Court of Criminal Appeals under a front-end Daubert challenge had reaffirmed bite mark evidence as recently as 2012 and the idea behind the junk science writ was if you're not going to keep it out on the front end, on the back end let's provide some means to challenge it and then once it's invalidated you still can't use that going forward after that and that's what's happened here. They can't use the bite mark evidence now going forward and now there will be a basis to go look at the old cases.
Amanda Marzullo: Yes and no. I think that part of what's happening is that now that we've had sort of a demonstration that the evidence that is let in on the criminal realm is clearly doesn't pass muster in the habeas realm, that it is a calling upon trial courts to new vigilance. And I think part of the problem that you just demonstrated in your comparison between civil courts and criminal ones is part of the problem is that there really shouldn't be a distinction between the two.
Scott Henson: Well, forensic science is just a bizarre thing. Most of it is not science at all, most of it are just things that cops who are not scientists just began doing to try and convict people. Fingerprint comparison, ballistics comparison, blood spatter evidence, no scientist came up with any of those things, there's no science involved. There's no scientific method applied to them. There's things that a hundred years ago cops started doing so they could accuse someone and the courts let it in and then future courts said, "Oh, the last court let it in and so there's precedence so I'll let it in too," and we've done it over and over and over.
Amanda Marzullo: Yeah. And then over time these things have snowballed and I think that part of the lesson from Chaney is that courts should just have a common sense application to the evidence that's in front of them regardless of the nature of the proceedings and that if they wouldn't let it in in a civil proceeding, they sure as hell shouldn't let it in in a criminal one.
Scott Henson: I hope that that's the case. Now Peter Neufeld said to me once that when you have an illness and you go to the doctor for a diagnosis and they run a blood test, the result of that blood test is going to be the same whether it's performed in Maine or whether it's performed in Houston but that's not the case with forensic science at all. A lot of this stuff is very subjective and it's very dependent on which analyst looks at it or which lab looks at or which standards they're using.
Amanda Marzullo: And hopefully over time we get to a point where the information that is also provided to the scientists that are performing these tests is also controlled. I think that's part of the problem that we've been seeing in Texas.
Scott Henson: And that's certainly the case in the bite mark evidence where some of these analysts actually brag that they've seen all this other evidence about the case and that helped corroborate it. Well, that's the opposite of what it should be doing really. You should not see any of that, you should be looking at it independently and only evaluating the comparisons between these two items. You shouldn't have the context for the other. But let's talk real quick about, just a pivot, Judge Keller's remarkable concurrence where she suggests that we should alter the standard for actual innocence in Texas. What'd you think about that?
Amanda Marzullo: I agree with, well unsurprisingly, I agree with Judge Alcala's concurrence which responds to that which means-
Scott Henson: Which that's probably why you hired her, I'm guessing.
Amanda Marzullo: Listeners should know that I did not know about this concurrence at the time that I made a job offer to Judge Elsa Alcala who is a wonderful person.
Scott Henson: And who, by the way, just for clarification is going to lobby on behalf of the Texas Defender Service at the Texas legislature this time for criminal justice reform. It's really big, great news and congratulations, by the way, that was really a coup to get her to do that.
Amanda Marzullo: I am extremely grateful to Judge Elsa Alcala for coming aboard but aside from that I think Judge Alcala and Richardson both make excellent points in their concurrences that this is a Herculean standard to begin with and not so much from Judge Keller's concurrence doesn't make too many points aside from citing concerns that the Court of Criminal Appeals should be basically declaring people not guilty, in so many words, as opposed to actually innocent. And it's really Judge Urie's concurrence where he sort of talks about intrigue from these ideas from Judge Keller and points to an analogy between a jury declaring someone not guilty and the Court of Criminal Appeals declaring someone entitled to habeas relief. And the problem is is that that analogy just doesn't hold muster over time. You're dealing with two people who have had different levels of process against them that if a jury acquits someone of the charges against them, that is someone who is not been incarcerated.
Scott Henson: That's right. And that's a signal to the world that this person didn't do it.
Amanda Marzullo: Yeah. A jury could not find that they did it.
Scott Henson: That's right.
Amanda Marzullo: Whereas someone who is subsequently incarcerated, declared guilty, incarcerated and then entitled to habeas relief after the fact. That is someone who has incurred a different level of harm from the criminal justice system and that is someone who should be entitled to a greater level of relief.
Scott Henson: I have to admit I was a little disappointed in Judge Keller's concurrence. I understand where it's coming from. I've read her views over the years and so I'm not that surprised but I was disappointed. I feel like that she's engaged in a process of moving the goalpost here. At the time that they approved the Elizondo opinion, which is what established Texas actual innocence standard, I think everyone on the courts believed that it would actually be rarely used. In the decision, they said that you would have to meet this, they called it a Herculean standard to meet it. And for the first few years that's exactly how it was treated. You might get relief but very few people got actually innocence relief.
Scott Henson: Well, the first thing that happened was the DNA cases showed up and there were dozens and dozens of DNA cases where, in fact, you really could meet that Herculean standard. All of a sudden, there really were actually innocent people. And then we passed the junk science writ. And once you pulled the junk science out of some of these old convictions, you started to see more cases like Chaney's where absent the bad forensic evidence, there's no basis at all to find any culpability here and this person is actually, actually innocent. In Chaney's case there were nine alibi witnesses that the jury disbelieved in favor of the bite mark evidence. Well, Judge Keller's now wanting to move the goalpost because quite a few people are able to meet that Herculean standard now. She wants to now say, "Well, let's change it." So, just like I originally wanted, very few people will ever get to actually benefit from relief here.
Scott Henson: Often, I have called the faction of the court Judge Keller leads the government always wins faction and there's four of them on there that essentially side with the prosecution nearly all the time. Two of them split with Judge Keller here and that was a very significant aspect of this decision.
Amanda Marzullo: Except that the government sided with the inmate in this case.
Scott Henson: And that was my point is that normally I have labeled her as part of the government always wins faction. This puts a different light on this because the prosecution actually sided with the defendant. They said, "You deserve actual innocence relief here." And I think the reason I was disappointed is that I felt like Judge Keller's opinion wasn't just about, "I want the government to win," which is her usual position. She really wanted Steven Chaney to lose. She really wanted him to not get relief, to not be declared actually innocent, to not be compensated.
Amanda Marzullo: I don't even think she was saying that it's not relief, right. She thinks that lifting the conviction is enough.
Scott Henson: Right, right but she didn't want him to benefit from any compensation, that was important to her in a way that seemed just a little too negative, a little too harsh, a little too personal.
Amanda Marzullo: Yeah. And from those lawyers who are listening, probably not far enough. That when it comes to tort law, when you sue somebody you're trying to be made whole and that failing to recognize Chaney's innocence on the part of the state would be failing to make him whole. It would maybe put him where he was if the state hadn't incarcerated him post-judgment.
Scott Henson: Except they did.
Amanda Marzullo: But they they did, exactly. And that he clearly would've lost his job, he lost his contact with his family.
Scott Henson: He lost more than we can ever imagine. That's what he lost. When you're incarcerated for a crime you did not commit, you have lost more than anyone who's not been in that situation can ever imagine.
Amanda Marzullo: So, the show's already pretty full but there's a lot to talk about. So let's play a quick game of fill in the blank so we can assess some of the issues Scott just couldn't bear to keep off the list. Starting with funding for prisoner healthcare in the Texas Department of Criminal Justice.
Amanda Marzullo: TDCJ says it needs 247 million dollars more in its healthcare budget just to provide present levels of services, however, the Texas House allotted only an additional 160 million dollars for prisoner healthcare in its filed version for its budget while the Senate actually cut funding by 1.3 million. So, Scott, fill in the blank. If legislatures don't want to pay more prisoner healthcare, they should.
Scott Henson: They should incarcerate fewer people. This is now the new normal. We now, every session, are going to see nine figure increases in prisoner healthcare costs, 150 million, 250 million. Every biennium we're going to see this much of an increase unless the Texas legislature chooses to reduce the number of people incarcerated. There is no more cutting. We have done all of the cutting to the bone that we possibly can. They have tried to get prisoner's families to pay for inmate healthcare by taking money out of their commissary accounts, that didn't bring in nearly the amount of money that they had anticipated that it would when they passed the rule. There's nothing else they can do to reduce these increases in healthcare spending except provide healthcare for fewer people. And that's just where we are now. If they want to pretend otherwise ...
Scott Henson: What we've been doing the last few sessions is underfunding healthcare, again, by 160 million last time, couple hundred million next time maybe, and then they come back the beginning of the next legislature session and have what's called a supplemental budget which is all the things that they'd underfunded the last time. It's been in the nine figures biennium after biennium after biennium. They underfund healthcare, come back and have to pay some huge sum at the beginning of every session and then underfund it again the next go round.
Amanda Marzullo: Yeah.
Scott Henson: So that's where we've been. It's not a solution. If you don't want to pay the money, incarcerate fewer people.
Amanda Marzullo: Yeah. And my alternative to that is just to expand Medicaid, that if you're not going to incarcerate fewer people you should make medical care available to a bigger purview of people.
Scott Henson: Well, and for starters if they expanded Medicaid, it would pay for inpatient hospital care for Texas prisoners which is something that right now Texas taxpayers pay for 100%, the Feds would pay for 90% of those inpatient hospital costs if we expanded Medicaid. The other big things are mental healthcare and drug treatment, expanding both of those through Medicaid where you can access it without having to go through the criminal justice system would be a big thing. Yours is probably a smarter solution than mine. Mine's just the, "Oh my God, we can't keep paying for this. Let's have fewer people so we don't pay for all their healthcare." But expanding Medicaid will probably be the smarter method. Probably my method maybe the more politically viable, more politically possible in 2019. Who knows?
Amanda Marzullo: Who knows? I hope not but you're probably right.
Scott Henson: In Congress during the lame-duck session, the First Step Act passed with overwhelming bipartisan support, the first prison reform legislation approved by Congress in a generation. Mandy, fill in the blank. Passage of the First Step Act should encourage Texas legislatures to ...
Amanda Marzullo: Pass their own version of this legislation. TDS has been working with numbers in the Texas legislature to develop our own version of this legislation which would allow individuals to be rescindents according to new provisions of the law based on consent of not only the prosecution, the defense, but also the trial court who presided over someone's conviction-
Scott Henson: That's an awesome idea.
Amanda Marzullo: No, no, it is an awesome idea and it also comes with a more streamlined approach than the First Step Act.
Scott Henson: The First Step Act reconsideration was very bureaucratic and had a lot of sort of new systems and stuff it had to implement.
Amanda Marzullo: Yeah, no, exactly. It had its own commission that would be reviewing these sentences, there was a lot of red tape entailed and our case, we're talking about local control. If you're able to have consent from the prosecution, and we're talking about the same office that presides someone's conviction and sentence is able to consent someone's re-sentencing ... We're not even talking about acquittal or necessarily being released under the law, we're talking about just a simple re-sentencing then someone can be re-sentenced. It's a-
Scott Henson: That's a really cool idea.
Amanda Marzullo: You know and it's one that I am very, very proud of in terms of its elegant.
Scott Henson: That is a great solution and it's great to take some of these ideas in the First Step Act and say, "Hey, how can we implement some of these in Texas? How can we take some of these bipartisan reforms that we've already seen get momentum at the federal level and implement here?" I completely love it. I would say that passage of the First Step Act should encourage Texas legislatures to support criminal justice reform if you want to align yourself with the President in the next election.
Amanda Marzullo: Yeah.
Scott Henson: With the new House majority for the Democrats at the federal level, the First Step Act may well be the last piece of legislation President Trump signs before the next election.
Amanda Marzullo: So what was our Texas version of that by implication is even stronger in a lot of ways.
Scott Henson: There you go. And even more broadly, I think that we can see that criminal justice reform is going to be one of the things that the President is running on during his reelection campaign and Republicans, I think, are given a big incentive here to follow suit and to find criminal justice reform they can support here whether that's Governor Abbott's suggestion to reduce penalties for low-level marijuana offenses or the Texas Public Posse Foundation suggestions for how to reduce state jail incarceration. I think that the President sort of coming out so strongly in favor of criminal justice reform does show that folks that want to align themselves with his agenda going forward really ought to get on the train, that's what I would take from that.
Amanda Marzullo: Hopefully.
Amanda Marzullo: So, last one, Austin Police Chief Brian Manley held a press conference at the end of the day on New Year's Eve to reveal results of a Department of Public Safety audit. The review was commissioned after a whistle-blower, a former Austin PD sergeant alleged in a national podcast that she was removed as a head of the Sex Crimes Unit for refusing to fudge clearance rate results. Chief Manley said the audit didn't evaluate the whistle-blower's claims but that's not entirely true. The DPS confirmed that the deposed sergeant classified cases correctly and that the agency began to misrepresent clearance rate after she left. Chief Manley now says a third party will independently evaluate APD sexual assault cases to make sure that they were cleared properly and that no one will face discipline for misclassifying cases. So, Scott, fill in the blank. Austin-ites should feel blank about the police chief's handling of this episode.
Scott Henson: They should feel disappointed. Honestly, he has mishandled this absolutely from the get go. He started by blaming the victims and claiming that all this was happening because victims were refusing to cooperate with police, that turned out to be 100% false. The police department was miscategorizing these cases and those victims in fact had not refused to cooperate. He was openly misstating their positions and honestly he owes them an apology. I really feel like he will not have begun to rectify this situation until he admits, "I was wrong to blame rape victims for not participating with the investigation." It was a lie. He told it for self-interested reasons. He should never have said it and now he should apologize. It was absolutely awful.
Scott Henson: Beyond that, the idea that you're going to get the results from this DPS audit on December 13 and you're going to wait until 4:45 in the afternoon on New Year's Eve to release these results at a press conference is absolutely disingenuous. It is just malfeasance. I can't believe, this frankly is something where if I were on the city council I would be out for this guy's head at this point or I would really want an explanation. If not, that's just bad faith. That's just trying to play hide the ball and to this day he has not actually owning up to his responsibility. He is insisting that somehow they didn't do anything wrong, "Oh, the DPS didn't say anything about the whistle-blower," who was right, who was wrong. Well, you've already admitted it all. You admitted she was removed because she wouldn't use your definition.
Scott Henson: The only question was was she right or was you right about what is the right definition. We now know for a fact it was her. She was right. You were wrong. You removed her from her job for trying to use the correct definition and now you're wanting to pretend that somehow you couldn't have known. No, no, this was a bad act. This is a bad thing. And I know that Art Acevedo, the prior police chief, is really the person who did that. He's the person who pressured her out and he's now police chief in Houston and that's the person who told this person, "You have to fudge these numbers or we're going to replace you." She took a principled stand and said no and so he did, he got rid of her and replaced her. He's now in Houston.
Scott Henson: But Chief Manley's response to this scandal has made the scandal his own. Him blaming the victims and then refusing to accept accountability, to me, is just about as bad as it gets and he really needs to have some big mea culpas very, very soon where he owns the responsibility here or I don't know that if I were on the city council I would continue to support him being police chief.
Amanda Marzullo: No, no, thank you, Scott. I don't think there's much to add to this.
Scott Henson: Now it's time for our rapid fire segment we call The Last Hoorah. Mandy, are you ready?
Amanda Marzullo: I am ready.
Scott Henson: First, in Sugar Land, the county seat of Fort Bend County named for the Imperial sugar company that dominated the area's economy for decades, authorities discovered that 95 graves of African Americans employed by the company and convict leasing arrangements who are buried where they dropped instead of entombed in an adjacent graveyard reserved for whites. Mandy, what does this dark and hidden history tell us 100 years later?
Amanda Marzullo: This is just a window into the inhumanity of our prison system and its origins. It's something to think about as we assess our prison system going forward. Next, the Forensic Science Commission in December said that field tests for drugs used by hundreds of Texas police departments have high error rates but declined to suggest banning them because they're commonly used and science has developed no alternative. So, Scott, was that the right conclusion?
Scott Henson: I think that was a really terrible suggestion. They basically concluded yes, these field tests are junk science that have high error rates that are causing people to be falsely arrested and convicted and then said we should keep using them because there's no alternative with lower error rates. Why not just stop using the junk science like the Houston PD did and let the chips fall where they may? Why do we have to have a replacement before we can stop using something that we know science doesn't support? All right, last one. Activists in Austin are in an uproar because the county sheriff is withholding evidence in an inmate's death invoking what the press is called the Dead Suspect's Loophole in the Public Information Act which lets law enforcement withhold records in cases that were never prosecuted whether because the suspect died or some other reason. Mandy, is there any good reason the public shouldn't see these records just because prosecutors couldn't secure a conviction?
Amanda Marzullo: No. It doesn't make any sense. I can't think of any justification to withhold this evidence whether someone's actually suspected of a crime at the time of their death or not.
Scott Henson: All right. We're out of time but we'll try and do better the next time. Until then, I'm Scott Henson.
Amanda Marzullo: And I'm Amanda Marzullo. Goodbye and thanks for listening.
Scott Henson: You can subscribe to the Reasonably Suspicious podcast on iTunes, Google Play, or SoundCloud. We'll be back next month with more hopefully better news. Until then, keep fighting for criminal justice reform. It's the only way it's going to happen.
Amanda Marzullo: And a special shout out to the Honorable Elsa Alcala, formerly a member of the Texas Court of Criminal Appeals who is now TDS's policy director.
Scott Henson: And also to Shakira Pumphrey, my former boss, who's now moved on to the Texas House Speaker's Office. Congratulations and it'll be difficult to fill your shoes.
Transcribed by Rev.com. Edited lightly for accuracy and clarity by Scott Henson.
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