Thursday, February 28, 2019

Reasonably Suspicious podcast: Harris commissioners nixed DA hiring request, and other stories

The Harris County District Attorney can't hire more prosecutors, the Houston PD can't find the informant behind a botched SWAT-style narcotics raid, and the chairman of the House Corrections Committee can't understand why local government spends so much money jailing people. My co-host Mandy "Tiger" Marzullo and I discussed all this and more in the better-late-than-never February episode of the Reasonably Suspicious podcast:

Here's what we discussed on the show this month:

Top Stories
  • Harris County rejects DA request for new prosecutors (2:15)
  • Houston PD can't find informant behind botched, deadly SWAT raid (8:00)
House Corrections Committee Chairman James White (14:30)

Data Corner
Conversation with Just Liberty's Chris Harris about Class C misdemeanors (21:00)

The Last Hurrah (31:38)
  • Texas jails and prisons gathering voiceprint data from inmate phone calls
  • Long lines at DPS staffing centers
  • Guard salaries, A/C, and staff turnover at TDCJ
Find a transcript of the podcast below the jump.

Tuesday, February 26, 2019

Bill aims to close 'dead suspect loophole' to TX Public Information Act

For 25 years in Texas, from 1971 to 1996, police files on closed criminal cases were open records, whether or not anyone was ultimately convicted. But in 1996, the Texas Supreme Court eviscerated what was then the Texas Open Records Act when it came to law enforcement records, ruling in a case styled Holmes v. Morales that police case files are closed unless they resulted in a conviction or deferred adjudication. Then, the following year, the Legislature codified the restrictive court ruling rather than re-install the older, stronger standard that governed police records for a quarter century.

Tomorrow in the House State Affairs Committee, Speaker Pro Tempore Joe Moody will present a bill, HB 147, to open records in a subset of cases closed without a conviction: incidents where the defendant dies, either killed by police, committing suicide, or via other means. At Reason magazine, C.J. Ciaramella dubbed this the "Dead Suspect Loophole" to the Texas Public Information Act. Local media in Austin have highlighted several cases matching this profile.

Grits agrees that closed information about deceased suspects is an important aspect of the problem. However, framing it that way understates the size of the loophole. Problems with the law-enforcement exception to Texas Public Information Act go much deeper than that, and the Legislature should address them. I'm certainly glad this aspect is being highlighted, but Grits wishes the bill went farther.

The ill-considered codification of Holmes v. Morales was the issue which first inspired Grits to begin showing up at the capitol more than two decades ago, as fate would have it. Past legislative efforts to revisit the topic never got off the ground. So I'm happy to see it being addressed now, even in part.

Sunday, February 24, 2019

Bill limiting suspensions a start at untangling worst-in-nation driver-license mess

Texas revokes more drivers licenses, by far, than any other state, The Washington Post reported last year. But House Corrections Committee Chairman James White wants to change that. He has a bill up in the Homeland Security and Public Safety Committee on Wednesday that would rectify a small but unremittingly ill-conceived provision in the current law.

Presently, Texas law doubles down on license suspension as a punishment, even when it fails to keep drivers off the road. When the Transportation Code lists grounds for suspending licenses, the very first one is driving while one's "license was suspended, canceled, disqualified, or revoked, or without a license after an application for a license was denied."

So one of the punishments for driving with your license suspended is to suspend your license for a minimum of one extra year. Combined with the Driver Responsibility surcharge, which has left more than a million Texans with suspended licenses, this provision adds insult to injury, leaving drivers without a license even after delinquent surcharges are finally paid.

By contrast, people who engage in "habitually reckless" driving, "fraudulent use" of their license, or are responsible for an accident that results in serious personal injury or property damage, only get a 90-day suspension.

Driving with an invalid license is already its own crime, so it doesn't particularly need the extra administrative penaltyy. Chairman White's HB 162 would apply the extra suspension only for drivers whose licenses were suspended for DWI. And then, he would limit the suspension to 90 days, which is the amount of time for all other suspensions under the same provision.

It's a small change but it would help untangle a particularly difficult bureaucratic gnarl which can ensnare drivers for years after they've otherwise paid their debt to society. Grits is glad to see the bill getting an early hearing and hope it garners support in committee.

Thursday, February 21, 2019

Decarceration, police accountability, transparency: Little bills worth watching

Much attention at the Texas Legislature gets paid to a handful of Big Bills in the criminal-justice world like bail reform, driver-surcharge abolition, and enacting a constitutional standard for executing people with serious mental illness or developmental disabilities. But thousands of bills get filed, including lots of smaller ones that merit attention and potential support from justice reformers. Here are just a few that caught Grits' eye in the last couple of days. In the coming weeks I'll periodically highlight a few more pieces of less-high-profile Texas legislation that should be on reformers' radar screens. But for now, try these on for size:

'Mandate Relief' on pot and DWLI
Rep. Alma Allen's HB 371 reducing marijuana penalties has gotten a lot of attention because of the governor's endorsement of an essentially similar proposal. But Grits is just as interested in her HB 372 reducing penalties for Driving With License Invalid (DWLI). These two victimless crimes take up a lot of cop, court, jail, and indigent defense resources at the county level that would be better expended elsewhere. Reducing these penalties would be the opposite of an unfunded mandate, if there's a word for that: mandate relief, maybe.

Right-sizing three-strikes theft enhancement
Rep. Yvonne Davis filed HB 1240 adjusting the penalty for misdemeanor three strikes theft. Presently, the third strike garners a state jail felony, even if the grade of theft otherwise would only be a Class C misdemeanor. Davis' bill would create a third-strike enhancement that bumped the penalty category up one level, and require that all three strike occurred within a five-year span. In the wake of the Legislature boosting property-theft thresholds in 2015, three-strikes theft is now the second most common source of new entrants to Texas state jails, behind less-than-a-gram drug offenders (Rep. Senfronia Thompson's HB 1719 would reduce penalties for those defendants, fwiw), so three-strikes reform could have modest but significant decarceration effects.

Limit SWAT-style raids to imminent threats
Rep. Harold Dutton's HB 2015 would require law enforcement agencies to enact policies limiting the use of SWAT teams and tactics to situations involving an "imminent threat." It would require additional reporting on SWAT deployments, require those teams to wear body cameras, and specifies that "The existence alone of a legally owned gun in the home of an individual does not constitute evidence of an imminent threat." MORE: See excellent coverage of the bill from the Houston Chronicle.

Documenting consent
State Rep. Jarvis Johnson filed HB 804 to require police officers to get written or recorded consent to conduct "consent searches" at traffic stops.

Clarifying 21st century police powers
Rep. Toni Rose's HB 745 updates anachronistic language on police powers that's long-ago been usurped by court precedents and modern police practices. Remarkably, some of the language dictating police "shall" arrest (really it's "may") whenever they see a crime, or empowering officers to compel bystanders to form a posse, dates from slave-catching laws in the antebellum era which have never been revisited. That task is long overdue.

Media access to grand juror info
Rep. Tony Tinderholt's HB 1609 would allow disclosure of certain information about grand jurors to "a member of the news media acting in that capacity."

Closing the 'dead suspects loohole'
Rep. Joe Moody's HB 147 would close the "dead suspects loophole" in the Texas Public Information Act that says the government doesn't have to hand over any records if the case is never prosecuted. Moody's targeting cases that weren't prosecuted because the suspects died; Grits thinks that's a good idea, but it would be even better to open the records for all closed cases, as was the case in Texas from 1971-1996.

Expunction Junction, What's Your Function?
Rep. Terry Canales, the new chairman of the House Transportation Committee, joined with an impressive array of joint authors to promote a bill expanding expunction of certain nonviolent misdemeanors. This isn't my area of expertise and Grits doesn't track expunction/non-disclosure bills closely, but I'm glad to see serious people taking the issue on.

Study migrating Class C misdemeanors to civil penalties
Finally, Chairman Canales also filed HB 110 to commission a feasibility study by the Office of Court Administration, due Oct. 1, 2020, of which Class C misdemeanors should be converted to civil infractions. In a post last year, Grits explained why Texas law criminalizes hundreds of petty offenses - including up to 16 felonies you can commit with an oyster - that would be handled through regulation and civil penalties in other states:
Nobody in the Legislature wants to create new government agencies or responsibilities, much less fund enforcement. So when business practices arise that they dislike, Texas legislators typically react by passing a criminal law that punishes business violators with the same sanctions faced by people who rape or rob. 
Whether there are eleven felonies Texans can commit with an oyster ... Or sixteen. Or thirteen. Or seven. Or three ... matters less than the fact that there probably shouldn't be nearly so many criminal penalties related to shellfish at all. 
District Attorneys aren't the right people to be prosecuting regulatory violations, so often they don't get prosecuted at all until somebody gets seriously hurt, which is pretty much the opposite of what prioritizing public safety should look like. 
One of the criticisms of creating a civil penalty for low-level marijuana possession during the 2017 session was that Texas doesn't have civil penalties for anything, including license violations related to oyster harvesting. But to me, the substance of that criticism doesn't argue against a civil penalty for pot, but instead for reviewing how criminal law is used in Texas as a third-rate substitute for business regulation.

Legislation filed to abolish driver surcharges

Yesterday, Texas Senate State Affairs Committee Chairwoman Joan Huffman and House Appropriations Committee Chairman John Zerwas filed companion bills which appear to be the leadership-driven abolition proposal for the Driver Responsibility Program (DRP) that will be the main focus this session.

SB 918 and HB 2048 aren't perfect, but they're certainly headed in the right direction. The bills suggest an array of new funding sources for trauma hospitals, most of which are less objectionable than the reviled Driver Responsibility surcharge.

The bill increases a fee on auto insurance policies by two bucks, 60% of which would go to the trauma fund. It diverts money from a vehicle-registration fee that was already authorized to fund the DRP. And it raises the state portion of traffic fines on certain moving violations from $30 to $50, while lowering the municipal portion from 5% to 4%; however, only 30% of that money will go to trauma centers, with the rest headed to the general revenue fund.

Perhaps the most controversial funding source would simply rename surcharges for people convicted of DWI, calling them "fines" but applying them in exactly the same way.

So, "in addition to the fine prescribed for the offense," which is set by the judge, the bill proposes that first-time Class B DWI offenders pay a "fine" of $3,000 spread out over three years; $4,500 for second offenders; $6,000 for third. Thirty percent of this money will go to trauma hospitals; the rest goes to the state's general-revenue fund.

Here's the rub: When those same fines were "surcharges," a majority of drivers could not pay them. And in an era when the Federal Reserve tells us 40% of the American public cannot pay a surprise $400 bill without going into debt or selling something, there's little reason to expect that will change.

Unless judges are given the ability to waive or reduce those amounts at sentencing, this is going to create the same problems we saw under the Driver Responsibility Program with respect to high nonpayment rates for DWI offenders. Indeed, low payment rates inevitably will make these fines another unreliable funding source for trauma hospitals, just as surcharges never remotely paid hospitals as much as the Lege originally predicted.

In Texas, DWI is presently a Class B misdemeanor punishable by up to six months in jail and a $2,000 fine on the first offense. This bill would add a mandatory $3,000 fine on top of that, which we already know from experience most people can't pay.

To Grits, the more rational approach would be to increase the max fine for misdemeanor DWI to $3,000 ($4,500 on the second offense, etc.), letting judges set the number, taking into account ability to pay. Then fund trauma hospitals from a general-revenue line item to ensure stability. (They're generating quite a bit of new, general-revenue money in this bill.) That way, legislators could signal their disapprobation for DWI by increasing fines, but avoid replicating predictable failures we've already seen from unpaid surcharges.

Even Mothers Against Drunk Driving supported allowing judges to waive or reduce surcharges in the interests of justice. The Legislature should do the same with DWI fines.

Regardless, all these problems with high fines are happening now in the status quo for DWI offenders, and the bill would eliminate surcharges for hundreds of thousands of people going forward. By any measure, it's an improvement.

CORRECTION: The original version of this blog post indicated that people with existing surcharges would not receive amnesty under the bill. That was inaccurate. Grits regrets the error.

Wednesday, February 20, 2019

Turmoil at Lubbock ME, Texas' failing state jails, implications of youth-prison riot for raise-the-age bill, and other stories

Here are a few browser-clearing odds and ends that merit Grits readers' attention:

Lubbock ME's office a Grade A clusterf#@k
The interim medical examiner at the Lubbock medical examiner's office has alleged that the previous ME, Dr. Sridhar Natarajan, was frequently drunk at work, used county facilities for his private practice, and, most seriously, took bribes to change the results of autopsies. But the main source for the allegations came out and vehemently disputed his account. In the meantime, weird allegations have arisen regarding use of body parts from autopsies for research/experimentation by the current, private vendor, who denies the charge categorically. What a messy collage of allegations, denials, and counter-allegations!

Gainesville youth prison out of control
The Houston Chronicle's Keri Blakinger published a story on rioting and widespread disturbances at the Texas Juvenile Justice Department's Gainesville unit last fall. On Twitter, Grits explained why this news may put the kabosh on raise-the-age legislation in 2019. My prediction: Texas will eventually be the last state in the union prosecuting 17-year olds as adults. Right now, we're one of four.

'False and misleading' forensic evidence led to death sentence
The El Paso DA relied on "false and misleading" forensic evidence about infant trauma to secure the conviction of Rigoberto Avila, the trial court found, recommending his conviction be overturned. Avila was scheduled to be executed in 2013 when Texas' junk-science writ took effect, but he immediately filed a writ under it and now it appears his case could be overturned entirely.

TDCJ disputes heat-death diagnosis
An autopsy found that a TDCJ inmate died of hypothermia. TDCJ officials are disputing the finding, demonstrating how they intervene to curate causes-of-death in the wake of federal heat litigation.

Failing state jails
Texas state jail system is widely regarded as a failed experiment, reported the Texas Tribune's Catherine Marfin. Their treatment mission never really materialized and recidivism rates from the facilities are far higher than other inmates leaving TDCJ.

Critiquing carceral mental-health care
The largest mental hospitals in Texas are all jails and prisons. The Dallas News published an editorial decrying that situation and calling for substantial, additional investments in mental health outside the justice system.

Austin warrants online?
How did Grits only just discover that Austin PD made all of its active warrants searchable online? Useful. Overwhelmingly, most of them are petty, Class C misdemeanors, but that database represents thousands of people living with the threat of incarceration looming over them.

Tuesday, February 19, 2019

TX bail-reform momentum growing amidst supportive press

Source: SA Express-News
In San Antonio, bail companies openly advertise to defendants that they should reject "personal bonds" and use bail bondsmen instead to avoid court fees, in-person check ins, and drug testing. That's pretty brash, for a group trying to convince the Texas Legislature that they're in the business of protecting public safety!

Here are several items anyone tracking the Texas bail debate will want to have read:
The Express News story mentioned a tidbit I hadn't heard. The appointed attorney for Janice Dotson-Stephens - the schizophrenic grandmother who died in the Bexar County jail over the holidays - never once visited her in the five months she sat in jail on a $300 misdemeanor bond. Asked if the attorney, Jerry Valdez, faced any sanction for this failure, County Court at Law Judge John Longoria, who is leading the charge to oppose bail reform, told the paper, "I am a little embarrassed that we haven’t looked into it for more detail.” As in Travis County where judges are opposing new state funding for indigent defense because they prefer not to have a public defender, apparently Bexar County judges cannot be embarrassed into reform.

The Filter story describes Philadelphia DA Larry Krasner's bail reform efforts. Here is the list of offenses for which his office no longer requests cash bail:

RELATED: On the January episode of our Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed the various federal bail-reform lawsuits around the state. It's the top story, starting at the 1:58 mark.

Houston PD will end most no-knock warrants after botched drug raid

"The no-knock warrants are going to go away like leaded gasoline in this city," declared Houston Police Chief Art Acevedo at a town hall meeting after police killed two people (along with two dogs) and four officers were shot while serving a search warrant, reported the Houston Chronicle.

The chief said he no longer "sees the value" in such raids, which were criticized earlier this month in a Texas Monthly story. In the future, said Acevedo, HPD won't use the tactic in most instances, and in the rare cases it is needed, it will require his personal approval.

That would be a big deal if he follows through with it. Here's hoping the announcement isn't just a short-term media stunt. Indeed, one hopes the Texas Legislature might look at requiring chief-level sign off for all "dynamic entry" episodes. God knows, this is an issue statewide, not just in Houston.

SWAT-style raids aren't the only policy area where reforms are implied by this clusterf&#k. Grits earlier identified an open-records exemption that keeps police misconduct secret at HPD. And Acevedo declared the department would roll out a new body-camera policy in the coming weeks. Officers in the raid weren't wearing bodycams and the incident wasn't recorded.

Finally, reforms are needed in the murky world of undercover drug enforcement. There probably needs to be more internal monitoring of informants used to secure search-or-arrest warrants, including keeping records of whether their information holds up. Another needed change: informants should be afforded a right to counsel whenever police use them to make cases against others. That would both protect them from having their rights abused, and provide a barrier to police faking informant testimony to secure probable cause, as allegedly occurred in this case.

Sunday, February 17, 2019

Travis judges reject public defender, DA discretion the solution to budget constraints, crime deterrent from traffic stops minimal, and other stories

Here are a few browser clearing odds and ends that merit Grits readers' attention:

Travis County judges refuse state money for public defender office
Travis County's bid to create a public-defender office isn't officially dead yet, but it may as well be after Presiding Judge Brenda Kennedy authored a letter saying local judges unanimously opposed the idea. Kennedy has urged judges not to speak for themselves and has thrown their support solidly behind the local criminal defense bar, which habitually opposes any public-defender system. Their reasoning is nonsensical. They don't want to spend $1.5 million on matching funds because it would reduce resources for the failed managed-assigned counsel system in use now. But that $1.5 million would draw down $15 million, significantly increasing resources available for indigent defense. So the judges are opposing increased indigent defense funding from the state at a time when counties statewide are pushing for the state to cover a bigger share. How does that make sense? Kennedy also disingenuously criticized the letter for vagueness, but it is a letter of intent, merely to get approval from the Indigent Defense Commission to develop a more detailed plan. If it was approved, the debate over those details begins. But no one wants to go through that if the judges won't buy in. This is an anti-#cjreform stance, by any measure, in an era when voters, especially in Democratic primaries, care about justice reform more and more. Judges up for re-election in 2020 should expect to defend this position in their primaries; they won't be able to hide behind Judge Kennedy's letter forever. More on this later.

More Houston drug-raid fallout
It's probably premature for the Houston Chronicle editorial board to declare local police could now rebuild trust after the no-knock drug raid in Houston that resulted in four officers shot, and two homeowners along with two of their dogs killed. The public isn't there yet, and couldn't be. They don't yet know how deep the rabbit hole goes. Conservative activists are already calling for Chief Art Acevedo to be fired. Meanwhile, others are calling for reforms to how SWAT-style raids are conducted.

DA discretion the solution to budget constraints
Harris County DA Kim Ogg is still stinging from the commissioners court's rejection of her proposal to hire 100 additional prosecutors. But in many ways, this opens up an opportunity to utilize her discretion to reduce caseloads if the commissioners court won't pony up. Here's a relevant academic article laying out the rationale for considered use of prosecutorial discretion to stop charging low-level offenses in the face of limited budget constraints.

Bail-bondsman empire strikes back
Bail bondsmen are suing to stop implementation of a settlement in the Harris County bail bond suit. In Travis County, a JP has come under fire for issuing personal bonds in cases where defendants allegedly committed serious new crimes. She's standing up for herself in a way that wouldn't/couldn't have happened a decade ago.

Everyone at the Texas Lege wants to end the Driver Responsibility surcharge; will they?
Grits is more optimistic than ever that the Texas Legislature may finally end the Driver Responsibility surcharge this year. You couldn't find a legislative office supportive of the program if you squinted. And while it's not clear yet where they'll get the funds to subsidize trauma hospitals, a lot more people are thinking about it than they were a decade ago when your correspondent began banging the drum on the topic.  The Texas Tribune's Arya Sundaram had a good writeup of the politics of surcharge abolition this time around.

You look like a tall drink of water, or not
A Bell County judge issued a recommendation that George Powell be declared actually innocent in a case involving junk science used to estimate the defendant's height from a videotape. The Court of Criminal Appeals must agree before the decision is final.

Evaluating Justice Algorithms
Slate's philosophy podcast, Hi-Phi Nation, had episodes on predictive policing and risk assessments that're worth a listen. Also, here's a new academic paper on the implications of "dirty data" for predictive policing.

Why, if you shoot someone, you're likely to get away with it
The Trace and BuzzFeed News have produced a pair of excellent stories about police clearance rates in violent crimes: “Shoot Someone In a Major U.S. City, and Odds Are You’ll Get Away With It” and “5 Things to Know About Cities’ Failure to Arrest Shooters.”

Crime-deterrent benefits from traffic stops minimal
Traffic stop rates have little effect on crime prevention, found a study of drivers in Nashville.

Junk-science writ stalled in VA committee
In Virginia, a legislative committee shot down an effort to expand habeas-corpus authority to challenge false convictions when new science discredits old testimony that supported a conviction. Regular readers know Texas and California presently are the only two states to have enacted "junk-science writs." Texas has been more active using the writ, mainly because our active death penalty provides attorneys to defendants to mount such challenges in habeas writs; non-capital defendants don't get an appointed lawyer at that stage.

Saturday, February 16, 2019

Why we know so little about the bad cop at the center of the botched Houston drug raid

A couple of weeks ago, Grits raised numerous questions about a drug-raid-gone-bad in Houston that left four officers shot and two homeowners and two of their dogs dead. Police-union leadership blamed police-accountability activists for the episode, and the mayor and city council members backed them up.

Now, it turns out the informant identified in the search warrant may not exist, and the narcotics officer in question has a lengthy disciplinary history, though much of it only documented in closed records that are not part of his official disciplinary file. It's become clear that the officer in question, Gerald Goines, should have been ousted from the force long ago, or at least rotated off the narcotics squad.

Revisiting key questions
To sort through this unqualified mess, let's start with some of the questions Grits raised immediately after the episode. For several of them, we now have answers.

What was the informant's background, and what was their relationship to their detective handler? It turned out the informant did not exist. Relationship to the detective? Imaginary friend.

Where did the informant get the heroin? Officer Steven Bryant retrieved the heroin out of Gerald Goines car, it did not come from the home in question.

Is it plausible that this couple would sell smack to a CI sent to their front door whom they'd never met before? No. This was a fabrication; it did not occur.

I'd asked, "Will the Conviction Integrity Unit at the Harris County District Attorney's Office now review those 10+ cases using this informant in the past?" But now that question shifts to cases by officer Goines and Bryant. (The latter man turned on Goines during questioning, but he was part of the faked-buy bust and was the one who turned planted evidence into the lab for testing.) There is at least one man currently petitioning the Court of Criminal Appeals to be declared actually innocent from one of Goines' past drug stings.

Why were Goines' disciplinary records secret?
Finding the answers to these questions shed a lot more light on the episode, but also raises many more, including about the department's policies related to body cameras and over-use of SWAT tactics for routine search warrants. There will be lots of time to delve into those in the coming weeks and months as more information comes out, but here's an interesting one that relates to pending Texas legislation: 

Why were so many of Officer Goines misconduct episodes absent from his personnel file? As you read through the Houston Chronicle story, multiple incidents involving Goines that appeared in the newspaper's archives were not recorded in his official disciplinary history reporters received from the department.

Here's why: Houston is one of about 70 Texas municipalities that have opted into the state's "civil service code" for police and firefighters (Ch. 143 of the Texas Local Government Code). Most cities whose voters opted into it did so in the 1940s and '50s. But thirty years ago, police unions succeeded in making most disciplinary records secret in these "civil service cities." Under Ch. 143.089(g) of the Local Government Code, only information about misconduct that results in a suspension is public, and then only a summary, not the whole file.

That means the episodes documented by the newspaper probably do exist in the department's Internal Affairs files somewhere, but are secret in Houston because of Ch. 143.

By contrast, if the same episode had occurred in Dallas, which never opted into Ch. 143, every jot and tittle of the old investigative files would be public, only excepting narrow issues related to personal privacy like addresses, social security numbers, etc..

This is a huge carve-out: Texas has more than 2,600 agencies employing licensed peace officers, about 1,800 of which are municipal police departments, plus another 254 county sheriffs. Of those, all but 70 "civil service" departments and all but one sheriff (Harris County) operate with their disciplinary files subject to disclosure under the Texas Public Information Act. (N.b., many cities and counties have some version of "civil service" in their own charters or codes, but here I use the term only to apply to Ch. 143 cities.)

This leads to absurd results. For example, in Fort Worth, the police department is under the civil service code and the Sheriff is not. Let's say an FWPD officer and a Tarrant County Sheriff's deputy engage in the same misconduct - in fact, let's say for illustrative purposes that they committed the misconduct together - and both were given a written reprimand.

At the Sheriff's Office, the entire investigative file regarding the incident would become a public record after the reprimand was handed down. At FWPD, there would be no public record of the episode at all. If the two were suspended, only a summary of the FWPD officer's misconduct would be released, but requestors would not receive remotely the level of detail available down the street at the Sheriff's Office.

This secret file even creates problems for prosecutors. Under Brady v. Maryland and (particularly) the Michael Morton Act, prosecutors are required to disclose impeachment evidence about their witnesses to the defense. So, for example, in Officer Goines situation, his misconduct in this case, or past details about the cases described by the Chronicle, might call into question his reliability as a witness. But police departments cannot release that information, even to prosecutors, under Ch. 143, leading people like Barbara Hervey of the Court of Criminal Appeals to support making such records public.

At the Legislature this go-round, Sen. Juan "Chuy" Hinojosa this year has filed SB 433 to open currently closed records under that 143.089(g) file, referred to colloquially as "the g file" in civil-service parlance. The bill has already been referred to the Criminal Justice Committee. Hinojosa filed the same bill in 2017 after a terrible episode in San Antonio where evidence of innocence was concealed by police from Bexar County prosecutors, allowing a man who'd been beaten by police while handcuffed to plead guilty to assaulting a police officer. 

Now, in the HPD's Gerald Goines, we have another excellent example of how making these records secret undermines justice and accountability.

There will be many more policy issues arising from this episode, Grits is certain, in the coming weeks and months. But this issue of secret-misconduct files is one the Texas Legislature should address this session. SB 433 (Hinojosa) should be passed as soon as possible.

Friday, February 15, 2019

Austin's Chief Manley blames victims for misunderstanding his victim-blaming comments

Austin Police Chief Bryan Manley apologized if rape victims felt he had blamed them in his department's coverup surrounding inflated sexual-assault clearance rates, but insisted he had never done so. Here's what he said.
"If my comments made survivors of sexual assault in my community feel like we were victim-blaming, then I absolutely apologize," Manley said in the interview. "Sitting here today, absolutely, if there are survivors in my community that felt like we were in any way victim-blaming or finger pointing, that's not what we were doing. We were trying to point out the possibilities of why we had a higher exceptional clearance rate."
That's not an apology, that's more victim blaming. Rape survivors didn't feel that he blamed them, they observed it.

Here's the context: Manley's predecessor as APD chief, Art Acevedo (now chief in Houston) replaced the head of Austin's sex crimes unit because she refused to alter clearance-rate data to say cases were closed because victims wouldn't cooperate in situations where that wasn't the case.

The department actually did that to her. It's not a perception. It's documented history.

When, last year, Chief Manley spoke to your correspondent about the topic, he continued to claim that the cases were closed because victims wouldn't cooperate, saying there was nothing his department could do in such circumstances.

This was a false characterization. We now know that for certain. Out of a sample of a hundred, Texas DPS said a third were closed improperly. What was improper about them? Results were miscategorized to say the victims chose not to cooperate when that wasn't true.

Victims who observed 1) the department miscategorize their positions after 2) removing the department head who'd been doing it right, then 3) heard Chief Manley doubling down on the false characterization over and over in the media, will feel blamed. That's because they were blamed, in a cynical attempt at media manipulation.

Think "media manipulation" is too harsh? Last fall, Manley told anyone who would listen that his department couldn't help it if victims wouldn't cooperate. But when it was proven he was wrong - when DPS audit results showed many victims had not refused to cooperate and had been wrongly blamed en masse in APD data - he held onto the information for nearly three weeks before revealing it at a hastily called press conference late afternoon on New Years Eve. That's a tactic to minimize media coverage, but it backfired, demonstrating the Chief's mens rea on the subject.

Manley says he was trying to "point out the possibilities" regarding why "exceptionally cleared" cases were miscategorized. But the only possibilities he focused on, in fact, blamed rape victims. He has refused to countenance the "possibility" that APD brass intentionally, improperly inflated the data and removed the head of the sex-crimes unit when she refused to participate in their malfeasance. But that is, in fact, precisely what happened. Manley's "apology" claiming victims misunderstood him is another insult. He's the one issuing all the misleading statements.

If Manley's not going to actually apologize, he should stay mum. No one needs to hear him claim victims are too dumb to understand what's going on here, when everyone but him can see quite plainly.

See prior, related Grits posts:

Tuesday, February 12, 2019

Blind amputee robbed bank to get healthcare, Austin DNA lab may have caused false convictions, reconsidering extreme sentences, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused elsewhere:

DNA-mixture errors may have resulted in false convictions
Travis County has identified eleven possible false convictions in which people were convicted based on DNA evidence that later was corrected to make an earlier match "inconclusive." The cases will move forward as habeas corpus writs challenging old convictions. Twelve more cases where at least one evidence-match was changed to "inconclusive" are also under review.

Oddly disconnected tropes promoting prosecutor hiring push
Harris County DA Kim Ogg issued an oddly tone-deaf op ed related to her proposal to add 102 prosecutors to her staff. E.g., she declared, "Every single case represents an offender, a crime victim and a community that wants to be safe." But that's not remotely true. Her office prosecutes lots of cases without victims. Who's the victim in a misdemeanor pot case? Or for driving with an invalid license? She also claimed prosecutor caseloads are "two to four times the American Bar Association’s recommended case load for criminal attorneys." But Keri Blakinger pointed out that that ignores the fact that ABA has explicitly said those caseload standards would be inappropriate to apply to prosecutors. UPDATE: The commissioners court turned down Ogg's prosecutor staffing proposal.

Challenging Kim Ogg
Perhaps not unrelatedly, potential candidates are already licking their chops to run against Ogg in 2020, Murray Newman reported.

H-Town success story helping homeless vets
Combining funding streams to maximize services has helped Houston nearly eradicate homelessness among veterans. How could they replicate the approach for everyone?

Second-look coverage
Legislation dubbed the Second Look Act would allow courts to re-examine long sentences given to juveniles, reported the ubiquitous Keri Blakinger in the Houston Chronicle. "Texas is a harsh outlier" compared to other states regarding when juvenile "lifers" are eligible for parole.

Desperate times call for desperate measures
A blind amputee committed a bank robbery in Austin last year in an attempt to receive much-needed healthcare through the justice system. It worked.

Sober approach
See a recent writeup of Austin's new "sobering center," which is being used as an alternative in low-level arrests. The center treated about 700 clients in its first four months of operation.

Lubbock ME travails
The Lubbock County DA asked the Texas Rangers to investigate the local medical examiner, which is presently staffed with California-based consultants. Details are still secret, but Lubbock has had lots of trouble at its ME's office over the years. Autopsies remain a forensics backwater, in many ways; the quality of that work varies widely.

The case for capping prison sentences at 20 years
At Vox, German Lopez made the case for capping all sentences at 20 years. But from a statistician's perspective, that's going to make less of a difference than one intuitively might suppose. Where it would help a LOT is in limiting rising healthcare costs, which stem disproportionately from older prisoners with long sentences. In response, TDCAA pointed out on Twitter that, at the height of the crime wave in 1991, Texas' Punishment Standards Commission suggested a similar cap for all offenses except murder; the proposal, obviously, was never implemented. Putting a point on this conversation, check out this WSJ op ed from a Colorado judge calling for rethinking of extreme prison sentences, even for violent offenders.

Dashcams better for accountability than bodycams
A study found people are more likely to hold officers accountable if they view an incident on dashcam video instead of images from a bodycam, because seeing the cop in the frame affected their judgment about intentions and guilt.

Sunday, February 10, 2019

Austin Police Chief is the last person who should be giving other chiefs advice on rape-clearance rate data!

Bizarrely, Austin Police Chief Bryan Manley is scheduled to speak to the Major Cities Police Chiefs' Association in Washington D.C. this week to share "hard lessons he's learned" about how police categorize sexual assault cases.

He's not ready. Manley hasn't yet taken responsibility for what happened or been held accountable for his cynical strategy to blame rape victims for APD-management malfeasance. Until he does, he shouldn't be lecturing anybody on this topic. In fact, this might be a good week to cancel his trip and spend the time instead on self-reflection, or perhaps listening to some of the growing cadre of victims upset about how the department handled their cases.

Readers will recall Austin PD ousted the head of the sex crimes unit, Liz Donegan, because she refused to inflate data to make it look like her unit solved more crimes than it did. Under former Chief Art Acevedo, who is now chief in Houston, the department pressured her to claim detectives solved crimes but cases didn't go forward because victims refused to cooperate.

Donegan refused, and was dismissed from her post, replaced by officials who immediately began to change the data to increase "clearance rates" by 50 percent. When the news came out in a national podcast last fall, Manley doubled down, repeatedly insisting to the media, including to this writer, that victims' failure to cooperate was the source of the problem.

But an audit by the Texas Department of Public Safety, released with little notice by Chief Manley at a late-New-Years-Eve press conference, found that a third of cleared cases in the sample analyzed were improperly categorized as "exceptionally cleared" because the victims wouldn't cooperate.

That's significant because Chief Manley describes Donegan's ouster as stemming from a "disagreement" over how to report clearance-rate data, which he says was resolved when she was replaced. So he's granted publicly that she was dismissed over this issue under his predecessor, the only remaining question was whether APD was right to do so?

We learned on New Years Eve that they were not; she was a victim of some seriously shady employment practices. Donegan was wrongfully removed from her position because she wouldn't blame rape victims in her clearance-rate data for her own unit's failures. This can now be stated without fear of contradiction or accusation of libel. It's just true.

Manley wants to pretend the problems all stemmed from clerical errors, hoping to elide any culpability for malfeasance by APD brass. But that ignores the severity of the now-admitted/proven allegations. To repeat: APD dismissed the head of its sex-crimes unit because she wouldn't fake data, then changed the categorization of case results to blame victims for cases not going forward.

The chief has never publicly apologized either to Sgt. Donegan or the wrongly-blamed rape victims for his department's slanders against them, but now is going to lecture other chiefs about the "hard lessons" he's learned? Please!

Only one of two things can explain it: complete obliviousness or excessive chutzpah. Or, I suppose the third possibility is he's receiving really bad PR advice.

See prior, related Grits posts:

Thursday, February 07, 2019

Re-evaluating SWAT, Corruption alleged in UT-Dallas policing courses, Was Dallas PD staffing shortage spoken into existence?, and other stories

Here are a few browser-clearing odds and ends that merit Grits readers' attention:

Corruption alleged in UT-Dallas policing courses
For years, reported the Dallas Morning News, UT-Dallas allowed police officers to enroll for a course, skip all their classes, and walk away with As. Wow. How did anybody ever think this was okay?

Growing critiques of routine use of SWAT tactics
Check out Jessica Pishko's coverage of a dubious Austin SWAT raid. Notably, a study last year found that "Militarization fails to enhance police safety or reduce crime, but may harm police reputation." That observation certainly applies to the recent, botched drug raid in Houston.

Hostility to hiring hundred Harris prosecutors heightened
The Harris County DA's request for 102 new prosecutors is meeting with spirited opposition from local reform groups. Grits opposes such an expansion unless 1) the county approves commensurate, new resources for indigent defense, and 2) the funding pays for caseload reduction, not filing new cases. MORE: Keri Blakinger elaborated on the story in her Twitter feed.

Was Dallas PD staff shortage spoken into existence?
The idea that Dallas needs more police has repeated so often it's now taken as fact, reported the Dallas Observer's Stephen Young, in his excellent lede to a story on DPD officer staffing. The police union in Dallas is touting an officer staffing rate of 3 officers per 1,000 residents, which is FAR higher than most Texas cities. "The national median police staffing level for cities with populations over 500,000 is about 2.1 per 1,000 residents. Houston has 2.22 officers per 1,000 residents; Austin has 1.89; and San Antonio has about 1.4." In Dallas, it's 2.25. There's some evidence that hiring more police officers reduces crime; in fact, it's more effective than a lot of other strategies. But it's also clear that crime has declined decidedly over the last three decades, for a variety of other reasons that have nothing to do with police staffing. We know that because crime continued to go down as police staffing levels stagnated. So any relationship is at best indirect, or crime would have risen as staffing ratios declined.

'How Baylor Happened'
Jessica Luther and Dan Solomon, writing in Deadspin, dissect the Baylor football rape scandals and the permissive culture toward athletes at the university and local law enforcement that tolerated it for too long.

On blaming state government for local decisions
After Grits dissected the Cooke County Judge Jason Brinkley's critique of unfunded mandates in the criminal-justice system, showing that local costs rose because prosecutors had tripled prosecutions during an era of declining crime, the editor of the Gainesville Register asked if I'd submit my comments as an extended letter to the editor. I did and they ran here. You're welcome, Judge Brinkley. ;)

For the reading list
Here are links to a few academic articles on topics this blog covers that I'm posting here to read later:

Wednesday, February 06, 2019

Ignore Austin defense bar: Create Travis County public-defender office

Like petulant children, the Austin criminal defense bar pulled out of a working group created by Travis County to plan for creation of a public-defender office. I've uploaded their letter here.

Continuing the whine-fest they began last fall, ACDLA complains that the county isn't properly considering whether to increase funding for their sorry, failed, embarrassing "managed-assigned counsel" system, in which the local criminal-defense bar was supposed to regulate itself. Feeling snubbed, they're taking their toys and going home.

When Austin's managed-assigned counsel system was created, attentive readers may recall, Grits opposed it and thought the county should have funded a public defender instead. Now, they definitely should.

One of the difficulties criminal-justice reformers face, at least in Texas, is that the criminal-defense bar, for the most part, is not a reform supportive group. Individuals, maybe, but not their organizations. Whereas the state prosecutor association's political stances derive from their interests in court, promoting tough-on-crime policies that empower the government, criminal-defense lawyers typically do NOT promote legislation and polices to benefit their clients. They are trade associations made up mostly of sole proprietorships, and their main interests are commercial interests.

Thus, Texas criminal defense lawyers tend to oppose public defenders at any level. Last session, the biggest organizing effort by the state criminal defense bar was to oppose a tiny public-defender office for capital appeals, even though there's vast evidence the private bar has consistently failed at the job in these complex and highly specialized cases.

Disingenuously, ACDLA claims it's some big problem that a Travis County public-defender office would only take 30 percent of indigent cases. (As though PD offices in other Texas counties don't take on part but not all of indigent caseloads.) They insist a new office should take all cases, or none at all.

That's a strategic position, of course, not their actual view. They oppose creation of a public-defender office of any type. Full stop. But they know that the only proposal on the table is for a PD to take a third of the cases. Ironically, that's mainly in deference to the local criminal-defense bar, who do not deserve it.

Now, the Travis County Commissioners Court should take ACDLA at their word, eliminate appointed counsel entirely, and fully fund a public-defender office, using appointed counsel only for conflicts and other minor roles.

The local defense bar had their chance. They proposed the managed-assigned counsel system in the first place as an alternative to a public-defender proposal, and now everyone but them can see that it failed miserably. The lawyers were better off, but the clients were worse off. And the purpose of indigent-defense services is to represent the interests of the clients, not the lawyers.

Tuesday, February 05, 2019

Hiring more Harris Co. prosecutors would harm the rest of the system

In Houston, liberal advocacy groups, including the Texas Organizing Project, the Texas Civil Rights Project, and the Texas Criminal Justice Coalition, are opposing Harris County District Attorney Kim Ogg's request for 102 additional prosecutor slots. (See initial press coverage.) Ogg says the slots are needed to make dockets move quicker. But Grits would favor expanding the public-defender office by that much LONG before I'd support that many more ADAs.

As it happens, an academic paper several years ago analyzed high prosecutor caseloads at the Harris County DA's Office, but recommended against addressing the issue by unilaterally hiring more prosecutors. Grits thought it relevant to revisit why those authors thought a hire-more-prosecutors approach was a bad idea:
The biggest problem with simply hiring more prosecutors is that doing so would have adverse effects on the rest of the criminal justice system. Increasing the number of prosecutors without a corresponding increase in public defenders would exacerbate the indigent defense problem. Defense lawyers would still be overburdened and would be in a worse position because they would then be facing prosecutors who were better resourced and thus better prepared for trial and less interested in plea bargaining. 
A second objection to simply appropriating money for new prosecutors is that there would be no guarantee that the allotted money would be used to reduce existing caseloads. Prosecutors’ offices may use the added manpower to simply file more charges. At present, overburdened prosecutors’ offices likely decline charges for minor criminal infractions that they simply lack the manpower to prosecute. Increasing the number of prosecutors may thus result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors. 
A third objection is that elected district attorneys in large offices (who are primarily administrators and typically do not handle actual cases) may view new staff as an opportunity to enhance their political reputations rather than reduce existing caseloads. At present, most local district attorneys have no choice but to use almost all of their budgets to handle violent crime. A sudden influx of new staff might lead elected prosecutors to create new departments or to allocate new lawyers to pet projects that will make political hay. For example, very few county district attorneys’ offices have the resources to handle long-term, paper-intensive, white-collar crime cases. Yet, in today’s political climate, many elected district attorneys would surely like to have robust white-collar divisions that focus on high profile issues such as mortgage fraud or investment malfeasance. Similarly, as it has become politically popular to “go green,” elected prosecutors might like to expand the size of their environmental divisions. Or district attorneys may simply be animal lovers who want to expand departments that focus on animal cruelty. All of these are worthwhile projects, but directing resources to new areas will do little to reduce the enormous caseloads facing existing prosecutors. (citations omitted)
Instead, the paper suggested tying any increase in prosecutor staffing with increases in indigent defense funding. That makes much more sense in the present political environment, and would reduce some of the unintended consequences that would likely arise from a one-sided arms race between prosecutors and defense.

Guerra-Thompson: Harris County bail compromise still discriminates against poor people

Sandra Guerra Thompson, Director of the Criminal Justice Institute at the University of Houston Law School, is unimpressed with the proposed bail settlement in Harris County, saying it continues to discriminate against the poor. Grits received this email from her this morning and am reprinting it with her permission:
I’ve spent much less time on the bail issue of late, but I have made some inquiries recently about the new Harris County policies.  Much to my chagrin, the county has tweaked the system to avoid constitutional issues, but in other respects the system still stinks.   Here’s my take: 
Under the old system, money bonds were set across the board almost immediately after people were arrested. Those with the money would bond out. The poorest of the poor would be stuck in jail.  These were the people who would be assessed using a risk assessment instrument and go before the magistrate without counsel where the magistrates would almost always completely ignore the recommendations of pretrial services (based on the risk-assessment instrument). 
You know well the problems with the use of money bonds that are imposed without a risk assessment.  Best practices call for universal risk assessment, and, obviously, decisions should be based (at least in part) on these assessments. 
Under the “new and improved” bail policy, money bonds are still set across the board, so the bail bond industry still thrives as usual. The difference is that now the poorest of the poor who are charged with misdemeanors (with a few exceptions for crimes of violence) will fall into a “presumptive personal bond” category. This means they are no longer assessed for risk by pretrial services, and the magistrate will simply release them on personal bonds. 
The result is this:  fewer people than ever are being assessed for risks. Plus, the unfairness persists. People with money are still released much sooner because they have money, usually within 12 hours. And, the poorest will be out within about 48. And why should people with access to money have to pay hundreds of dollars in bondsmen fees when those who don’t come up with the money (under the same bond schedule) will be released on personal bonds? It makes no sense other than to perpetuate the same money bond schedule while appeasing the federal judge.’ 
There is some good news. At the last County Commissioner’s meeting, they voted to bring in some experts, probably from the Pretrial Justice Institute, to assess their system and give advice for improvement. But for now, I remain disappointed.

Monday, February 04, 2019

Texas bail-reform bill to be filed today, and other stories

Here are a few browser-clearing odds and ends to start your week:

Bail-reform news and notes
Bail reform legislation will be unveiled at the Texas capitol this afternoon. Right now, there is bail litigation only in three Texas counties, but change is needed everywhere. The New York Times analyzed a pretrial-release bail-alternative program in NYC that reduced the population of the jail on Rikers Island by 38 percent. Bail reform helps reduce incarceration not just in jails, but in prisons: A study last year found that pretrial release "significantly decreases the probability of conviction" and future incarceration. UPDATE: The bill is SB 628. Here's video from the press conference, at which Sen. John Whitmire, Rep. Andrew Murr, Court of Criminal Appeals Presiding Judge Sharon Keller, and Supreme Court of Texas Chief Justice Nathan Hect all spoke. See coverage from the SA Express News and the Texas Tribune.

Asking "Why?"
An Austin family says there are too many unanswered questions surrounding their son's death after he was shot by police.

Competency restoration and state-hospital budgets
Texas has under-invested in mental-health services for years, relying on the justice system instead. Now, state hospitals need large, new investments to handle the competency-restoration load coming to them from Texas criminal courts. The Legislature should also authorize and fund outpatient competency restoration, as this blog has advocated for years, but they can't get away with failing to invest in state hospitals.

Where are the Class C misdemeanor records?
Here's a curious little study by the TX Office of Court Administration regarding Class C misdemeanor record retention, availability, and access, ordered by the 85th Legislature.

Video killed the bodycam software
In McLennan County (Waco), the DA's office is becoming overwhelmed with the amount of video it must store, and a glitch caused them to temporarily lose access to it last month. Amazon Web Services stores their video; they're about to up their capacity from 80 to 178 terabytes. A legislator (not from Waco) recently complained to me about the burdens video places on prosecutors under the Michael Morton Act, so this is a developing meme.

Despair and the American prosecutor
Grits has often thought the jobs "cop" and "prosecutor" shouldn't be life-long careers but merely a life phase. The distorted myopia that comes from viewing the world through a crime lens, encountering members of the public mainly via tragedy, at their lives' lowest points, would leave anyone jaded and discouraged. That sounds like how Ellis County DA Patrick Wilson is feeling as he prepares to leave office in 2020.

Assessing rape victims' needs
Check out the recently published "Austin/Travis County Sexual Assault Response and Resource Team Community Needs Assessment," for another aspect of the growing conversation over how Austin responds to victims in sexual assault cases.

Report: Travis County, state prisons collecting voice-print data from phone calls
Prisons are building databases of incarcerated people's voice prints, reported The Intercept in conjunction with The Appeal. "Corrections officials representing the states of Texas, Florida, and Arkansas, along with Arizona’s Yavapai and Pinal counties; Alachua County, Florida; and Travis County, Texas, also confirmed that they are actively using voice recognition technology today" from Securus, a Carrollton, TX-based company.

Bexar DA creates process to avoid arrest for petty offenses
Under the new Bexar County DA, cite and summons will be revived for three offenses: marijuana possession, DWLI, and theft of service. The Texas Legislature this session will consider reducing penalties for two of those offenses: Both the Governor and the Texas GOP platform have endorsed reducing penalties for user-level marijuana possession and Rep. Alma Allen has suggested reducing all DWLI charges to a Class C misdemeanor.

Smart on Crime focused on state jails
Writing at Tribtalk, Smart on Crime Chief Strategist Bill Hammond called on legislators to reduce incarceration in state jails to reduce recidivism.

Whose assets are seized under forfeiture laws?
Here's an excellent profile of asset forfeiture practices in South Carolina, where black men make up 13% of the population but 65% of forfeiture cases. To my knowledge, one can't get to a comparable statistic from available Texas data on forfeitures.

Prosecutor: 'Immoral' to fund justice system through probation fees
An Oklahoma prosecutor says it's immoral to fund his office partially through probation fees, providing corrupting incentives. The same can be said for funding Texas probation departments through high fees. Judges who oversee probation departments have an economic incentive not to let successful probationers off supervision, because they're the ones paying fees to keep the probation departments' lights on.

Sunday, February 03, 2019

SA bail tragedy illustrates how misdemeanors can ruin lives

One of Grits' favorite thinkers on justice topics, Alexandra Natapoff, whose new book about the misdemeanor system, Punishment Without Crime, I hope to review in the coming week, had a column in the New York Post with a Texas anecdote in the lede. It began:
Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail. The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out. She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives. 
Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year. America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet. But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail. One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent. 
Given the minor nature of most misdemeanors, it is shocking how often they send people to jail. Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.
On that last point, Texas is beginning to consider reforms to the misdemeanor system along the lines Natapoff envisions. This legislative session, we've already seen HB 482 filed by Rep. Senfronia Thompson to restrict arrests for Class C misdemeanors, which carry a maximum punishment of a fine, not jail time. This would impact a lot of cases: In Harris County, for example, 11 percent of all arrests are for Class C misdemeanor violations, mostly traffic offenses.

Most famously, Thompson's legislation would have denied the state trooper who pulled Sandra Bland out of her car the authority to arrest her for failing to signal a lane change - the trigger event in a series of injustices that led to her globally publicized death.

Meanwhile, bail reform, the need for which Ms. Dotson-Stephens' case in San Antonio ably demonstrates, will be filed on Monday in conjunction with the State of the Judiciary speech. Maybe that bill would have helped her. Or maybe, when the courts finish articulating the constitutional standards for pretrial release in Texas and the 5th Circuit, ongoing federal litigation will address the problem. Much is uncertain. But one thing is for sure: whatever reforms occur will happen too late to help Sandra Bland or Janice Dotson-Stephens.

RELATED: Here's more background on the case from The Texas Observer.

Saturday, February 02, 2019

Eleven unanswered questions about the botched police raid in Houston

Four officers were shot and two suspects and their dog are dead after a botched narcotics raid in Houston. Friends and family of the deceased say they were innocent victims. Obviously, I hope all the officers recover. But having watched this play out in the press for several days, Grits has questions.

Here's the background: According to the search warrant, police claimed they sent a confidential informant into the home who had assisted in 10 or more prior investigations, all of which had led to arrests and seizures. They searched the CI, gave him cash, and allegedly watched him go into the home in question. He came out with brown heroin in a bag, telling police he'd seen many other bags of heroin and a 9mm pistol. The officers placed the home under surveillance until they could get a warrant.

Problem is, they found no bags of heroin. There was no 9mm pistol. But when the narcotics unit (not a SWAT team) entered the home at five in the afternoon, announcing themselves as the battering ram broke the door down, there was an angry pit bull facing them that an officer immediately killed with a shotgun blast. At that, one of the homeowners returned fire, and an intense gunfight occurred.

The homeowners didn't have a 9mm, but they did have shotguns and a .357 Magnum, and they responded to the home invasion the way many gun owning Texas homeowners brag they would. Maybe they were violent criminals trying to kill police, but they could also have been unwitting victims of a lying informant who didn't understand who had broken down their door and shot their dog.

That's the first question: Were these people heroin dealers? The available evidence says no, and regrettably, they're not around to defend themselves against the allegation. Their neighbors told reporters they almost never had visitors, and their friends and family adamantly deny the charge. Cocaine was allegedly found on the scene, but one bag, at user levels. And the multiple bags of brown heroin and 9mm weapon alleged in the search-warrant affidavit were nowhere to be found.

So the second question is: Where did the informant get the heroin? Police claimed they followed best practices, searching the informant beforehand and watching him go in and out. The couple couldn't have moved it because police had the house under surveillance. And they'd have seen if there'd been enough customers for all the volume to deplete. So if the informant brought back heroin, where did it come from?

Third question: Is it plausible that this couple would sell smack to a CI sent to their front door whom they'd never met before? Something there doesn't add up.

Fourth question: Will the Conviction Integrity Unit at the Harris County District Attorney's Office now review those 10+ cases using this informant in the past? If he lied about this couple selling heroin, what else might he have lied about?

Fifth question: HPD claimed they raided the home for safety reasons because they knew there was a gun inside (even though they had bad information about that; there was no 9mm). But given the outcome, was it really safer? It was 5 p.m., so they were awake. Mightn't the outcome have been better if they'd just knocked on the front door?

Sixth question: Should police use "dynamic entry" to execute search warrants every time there's reportedly a gun in the home? There are probably guns in half the homes in Texas! Relatedly, if you're afraid someone might shoot at you when you break down their door, why not just wait outside for them to come out? The house was already under surveillance.

Seventh question: Were these narcotics officers sufficiently trained to perform a dynamic entry? There's a subsidiary question: why wasn't a SWAT team used? After his wife and dog had been killed, the husband, a Navy veteran with no criminal record, snuck out the back and opened fire on the officers from behind, the Houston Chronicle reported. This was a basic tactical error - someone should have been manning the back door. Also, such raids are frequently conducted pre-dawn to minimize the chance suspects will be awake and shoot back. This one was performed at five in the afternoon. So did these narcotics cops just not know what the hell they were doing?

Eighth question: Could they have raided the wrong house? The search warrant affidavit says police watched the informant go into the house and come out with drugs, then watched it until they raided it. But what if that's a lie? What if the informant merely told an officer the address of the house, and got it wrong? Otherwise, where is the heroin?

Ninth question: How much was the informant paid for this service? What is this person's background? How much was s/he paid in the past, and for what services? An officer vouched for the person in the search warrant affidavit, what was their relationship? It's okay to tell, the person can never be used as an informant again.

Tenth question: Chief Art Acevedo said neighbors thanked police for taking out a known drug house. But reporters interviewed every neighbor they could find and everyone said these were quiet people who seldom had visitors, loved animals, and kept to themselves. Why weren't those grateful neighbors corroborating the chief's claims to reporters?

Eleventh question: Why does Fox and Friends give union boss Joe Gamaldi a platform? The guy's a blowhard.

For more commentary on some of the implausible aspects to this story, see Reason's Jacob Sullum here and here.

MORE: On Twitter, someone suggested another excellent question: "Who shot who?" It was said the wife was shot when she lunged for a downed officer's shotgun after her dog had been killed. Does that mean she was unarmed at the time and the husband did all the shooting? Were any of the police injured by friendly fire?  Who shot who is an excellent question.

UPDATE (2/15): We're starting to get a few more answers. The informant may not exist, reported the Houston Chronicle, and police officers used heroin already in their possession to claim they'd performed a controlled buy. The narcotics officer who signed the warrant, Gerald Goines, from his hospital bed named two informants who may have performed the controlled buy, but both denied participating when questioned by investigators.
In the original warrant - the one used to justify the raid - Goines wrote that he watched the buy and, along with [Steven] Bryant, identified the substance as heroin. But when investigators went back to talk to Bryant, he admitted that he'd actually retrieved two bags of heroin from the center console of Goines' car, at the instruction of another officer. 
Though he then took the two bags of drugs for testing to determine that they were heroin, he eventually admitted that he had never seen narcotics in question before retrieving them from the car. That, the investigator noted, contradicts the search warrant affidavit filed before the raid, which indicates that Bryant "recognized the substance purchased by the CI as heroin."