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)

Interview
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.


Transcript: Reasonably Suspicious podcast, February 2019, co-hosted by Scott Henson and Amanda "Tiger" Marzullo

Amanda Marzullo: Hi, this is Amanda Marzullo. Houston officials rescued a tiger from an abandoned house last week after being tipped off by an anonymous pot smoker who entered the home to smoke in private. For reasons that one would clearly understand the caller first thought the tire was a hallucination.

Scott Henson: I thought that at first, but eventually I decided it must have been real because frankly, the marijuana I was smoking was not really that great.

Amanda Marzullo: Not the quality product you're used to.

Scott Henson: Exactly. You know the cop's named, the tiger Tyson after the big cat in the movie The Hangover and as it turned out, that was appropriate given the condition I was in at the time.

Amanda Marzullo: Do you know that Tiger was actually my nickname growing up?

Scott Henson: That is so wonderful. I can't even begin to say that. You're going to regret so much having ever revealed that.

Amanda Marzullo: Yeah.

Scott Henson: All right.

Amanda Marzullo: It was my mom, man. Unkind.

Scott Henson: Hello boys and girls. And welcome to the February 2019 episode of The Reasonably Suspicious Podcast covering Texas criminal justice politics and policy. I'm Scott Henson with Just Liberty here today with our good friend Mandy Marzullo, who is executive director at the Texas Defender Service. How are you doing today, Tiger?

Amanda Marzullo: Never been better, man. Although you're probably right about ...

Scott Henson: ... not revealing childhood secrets?

Amanda Marzullo: Yeah, no. What kind of parent does that to their child?

Scott Henson: Rawr. Coming up we discuss whether Harris County needs more prosecutors, the risks of no knock raids and the latest criminal justice news at the Texas legislature as committees ramp up and bills get assigned. We also have an interview with house corrections committee chairman, James White. Mandy, what are you looking forward to on the podcast today?

Amanda Marzullo: I'm looking forward actually to our first item, so let's move on with it. In our top story, the newly democratic controlled Harris County Commissioner's court rejected their fellow Dem and progressive district attorney Kim Ogg's request for more than 100 new prosecutors last week and at the same meeting nearly doubled the budget of their public defender. So Scott, were you surprised by this vote?

Scott Henson: Well, it's certainly a big turn of events. I mean for years and years it's been the case that you would see more money thrown at police, more money thrown at prosecutors and indigent defense was left in the lurch. And so to see someone say, no prosecutors. You're asking for too much, and then to double the size of the public defender office is a really good sign. And I thought really I wrote about this on the blog that if they're going to expand the prosecution by that much, they need to be expanding indigent defense funding at the same time. There was a big academic study that analyzed prosecutor case loads at Harris County in 2011 and they documented even higher case loads than prosecutors have now, back eight years ago. But they, in the end, concluded that you should not expand the number of prosecutors unilaterally, but only do it with an increase on the indigent defense side, too, or you imbalance the system. You create a situation where the prosecutors make it easier to go to trial. They want to take fewer pleas. They may take more low level cases. So I felt like that that was a lot of prosecutors to add all at once, and it's funny how the terms of debate have changed at the Harris County DA's.

Amanda Marzullo: I've been talking about this a lot with my colleague, Elsa Alcala, and Elsa made the point and I agree with her that this is an opportunity in some ways for Ogg to really prove herself as a progressive prosecutor and start allocating resources appropriately. You know, she's not the first criminal justice official in the country who has faced understaffing. And what we've seen in other places throughout the country is that if you actually try and just focus on the violent crimes and settle what you can, there are a lot of capital murder cases out there that if they wanted to settle them, they could tomorrow. And that would free up some of the most experienced lawyers in this office. And by settle, I mean pleading them out to life without parole. So it's not as though the defendant would be out on the lurch, but that's a way of just having a lot of attorney time available. But they could also, looking at the categories of cases where they could start dropping or put together policies that would divert cases quickly from their system.

Scott Henson: That's right. There are so many cases where there's no victim, there's really no one who's going to object. Who's the victim in a marijuana possession case? If someone has less than two ounces of marijuana, what is really the point of prosecuting that Class B misdemeanor? If someone has a second offense driving with an invalid license, which they do about 3000 of those arrests a year in Harris County, is anyone really safer? Is some victim protected because you criminally prosecute this administrative violation of your license being invalid? Probably not. And you're right, in many ways the commissioner's court has given her the perfect cover to stop taking these lower level cases, to stop pursuing the death penalty because it is going to take her most experienced attorneys off the playing field. She gets to do that now have has every good reason to do it.

Scott Henson: And so I hope you're right. I think there's two ways that this could go. She could decide, okay, I'm going to make lemonade out of lemons and I'm going to become the progressive prosecutor that clearly this county wants, that the county commissioner's Court expects her to be. They don't expect her to just be prosecuting more, more, more. That's the message that was delivered this time. So she can embrace that or she can sort of be grumpy about it and start to pick fights and throw pot shots at folks who opposed her budget. And I think that's not really going to get her anywhere. I think that she's already got a primary opponent who's filed a treasure report and this is going to be a political issue if she doesn't take it off the plate. And I think that the way to do that is exactly what you said, it is to say this gives me all the cover I need to have more progressive policies.

Amanda Marzullo: Yeah. And I think we don't even need to label them as progressive. I think a lot of this is about just responsible government. She can now start really taking a good look at how the resources are allocated, come up with a set of criteria that she believes in, and then running with it. And if she decides that she's not going to win the fight on who is the most progressive person, she can still pander to the middle and say, I did the best that I could with a really difficult situation. And my heart does go out to her a bit. I do think that she's had a lot of challenges in a very short period of time. Like she took office, then there was Harvey, I think pretrial release and its effect on their case loads is difficult to manage, and there that's a logistical nightmare. But does that mean that she needed a hundred new prosecutors? I don't know, but she can work with this. This is an opportunity and she shouldn't pass it up.

Amanda Marzullo: Staying in Houston, there have been a bunch of new developments in a tragic and controversial drug raid that left two civilians and two dogs dead, five officers hurt and with four gunshot wounds. I should say that the last officer there, the fifth one twisted his knee.
Scott Henson: Police can't find the confidential informant that supposedly gave the cops the info they use to justify the raid in the first place. And one of the officers involved, Gerald Goines, has a long rap sheet including multiple shootings and law suits and is currently facing perjury accusations for allegedly making up an informant to frame someone in another case. So Mandy, this is a complete mess. What are your thoughts?

Amanda Marzullo: Well, I think the first thing that stands out to me is that Gerald Goines is a career law enforcement officer who has been in Houston for a very long time. He's a known entity. And I think that in and of itself is probably what I find to be the most troubling thing about all of this is that if someone has been a law enforcement officer for decades, it makes you wonder how many other cases he's been involved in where there has been a fictitious informant. I think also why hasn't this been discovered sooner if it is a pattern or practice? I think at the end of the day it just raises a lot of questions when someone who has been around for so long does something that is so, well it's criminal.

Scott Henson: That's exactly right. And one of the things that was mentioned in the Houston Chronicle stories about this is well, maybe we shouldn't have people just stay on the narcotics division for years and years and years. Maybe they should rotate off every few years because that you're so exposed to potentially corrupting influences in narcotics enforcement.

Amanda Marzullo: But this isn't necessarily from the outside. It's aggravated perjury. This is a felony that he committed.But in order to enter someone's home, I mean I would expect that if someone is being corrupted by outside forces, it would be something that would be more insidious.

Scott Henson: I guess. I think it's weirder than that though. I think it's about the culture of these agencies and the culture of narcotics enforcement in this country where sort of racking up numbers is really the name of the game. Like just who arrested the most, who got the largest volume of drugs, that's sort of how they're measuring their success rates. After the Tulia drug stings, I was involved in pushing the Department of Public Safety to change their narcotics performance standards and DPS changed their standards to where instead of just how many people did we arrest, how much drugs did we seize? They started looking at how many criminal organizations were dismantled, and began using that as a metric.

Scott Henson: Simply using how many people do you arrest, gives you this incentive to generate as many of these low level arrests as you can whether or not you have any evidence, and that's apparently what we saw here. In that Tulia case, they had set up about 39 people who were eventually pardoned by Governor Perry. We saw more innocent people set up in Hearne, Texas by a confidential informant. In Dallas, Texas in 2001, the majority of all the drugs seized that year by the narcotics division were fake drugs used by an informant and a corrupt cop to set up innocent people. So we've seen this sort of corruption and false accusations out of narcotics units periodically over time here in Texas. This with two deaths is a level higher even in awfulness.

Amanda Marzullo: Yeah, no, that's indisputable. But I think it really does call to question the whole incentives of how these narcotics units operate. If it's a corrupting influence and if there are problems with how success is evaluated, I think that that goes to the heart of it and that probably rotating people in and out may help, but if they still are rotating in and out through this system that incentivizes perjury, then there's something wrong with the system.

Scott Henson: No, that's absolutely right.

Amanda Marzullo: Fundamentally, I mean I don't know enough about this to be more intelligent than that other than to say that there, there's a problem here that's systemic, but ...

Scott Henson: And frankly there's a lot, there's so many problems that are raised and it's not just about the sort of undercover buy bust scenario, but swat raids. We use swat raids and this wasn't a swat team, it was just the narcotics agency using swat style tactics, but swat raids are used for so many things nowadays and they used to be for these special circumstances. Now they're used for average search warrants and so that's something where all of that needs to be rethought and scaled back. There's no need to have this high intensity, high pressure situation where the moment you bust through, you feel like you have to open fire on the dog and the wife and it was, this is too much. There's no need to do that when all the neighbors said the guy walks his dog every day. You can wait outside until he comes out.

Scott Henson: This is not rocket science here. The last thing I'd mentioned on this is that when Keri Blakinger and Saint John Barned Smith did their story on Gerald Goines and his background, they found numerous incidents of alleged misconduct where the newspaper had recorded Goines having issues and it was not in the personnel file. And this is because Houston is a civil service city. They've opted into the State Civil Service Code. There are 70 cities like that around the state. And one of the things that happens for those cities is that the disciplinary files for officers become secret. This has become a problem because it's secret even from prosecutors who can't hand it over as impeachment evidence under the Michael Morton Act, under Brady v Maryland. And so a Chuy Hinojosa, the state senator has filed Senate Bill 433 this session that would open up those files. And I wanted to just give a shout out to him and that issue because it really jumped out of me from their coverage that, well, why is it that all these weird incidents aren't in the file? Well that's why. And someone's out there actually trying to, to fix that.

Scott Henson: Next we caught up with house corrections chairman James White, to ask him about justice reform prospects this session. We'll publish the full interview on my blog Grits for Breakfast and a few days. But until then, here's some key excerpts from our conversation.

Scott Henson: We started by asking the chairman, why as a former school teacher, he had chosen to prioritize criminal justice reform throughout his career?

James White: What I found out, if you're a believer, this is a great spot for you to be in. Okay? If you have a concern about the growth of government when you look at how these criminal justice budgets have grown on the federal and the state level over the last 25, 30 years, if the scope and breadth of government is your concern as a conservative, this is a good place for you to be. If you're a civil libertarian and you believe in due process, adherence to the constitution regardless of who you are, what your party is, or your ethnicity or race, any of that, this is a good spot for you to be in. And if you're a former educator and you want to improve the education system, you want to increase the impact of the education system on our society, this is a good place for you to definitely know what happens when you fail in the education system. So it's all of that, I believe. Yes ma'am.

Amanda Marzullo: So, speaking of predictions, what topic from a limited government standpoint, do you think that the legislature is going to work on this session?

James White: Well that's a good question. Well you said topics so you didn't particularly say criminal justice but topics, but definitely we need to do something on the public school finance formulas which are roiling the property tax scenario but you know before we started I had a sheriff's outside and I want them to come and testify. We haven't like an organization Correction Committee Organization meeting to on Thursday. Last week we dealt with everything in TDCJ, and you're talking about government, a lot of government in TDCJ, lots of government.

James White: Well we want to bring in some of the advocacy groups. We want to bring in the probation association. We want to bring in the sheriff's association and talk about if you're concerned about property taxes. I tell folks, I think the biggest unfunded mandate is the Texas criminal code, is the biggest unfunded mandate. We the ones up here, we make the laws. I guess we're listening to people when we make these laws and we say what is illegal. And then we just put it all on the local governments to figure it out. So when you look at folks that are just wasting away in the jails because they're mentally ill, they have a behavioral issue, they're dying in the jails, they're committing suicide, that's all property taxes. And so I want my sheriffs to come and say, here's our situation. In many instances I believe on the state criminal justice side, we could do a whole lot more in helping these counties control their budgets.

Amanda Marzullo: And their jail populations.

James White: And their jail populations. yes, yes.

Amanda Marzullo: I mean indigent defense is a big component of that as well.

James White: Big component of that. But you know, as Senator Whitmire said not yesterday, last week when he laid out his bail proposal with Representative Murr, this is a criminal justice system. So I have to do this as our local governing partners are really concerned about that 2.5% rollback rate. They're really concerned about unfunded mandates and they should be. There are things that they can do. Look at what Theresa May is doing in Harris County with pretrial diversion on state jail drug possession charges. She was doing PR bonds while everybody was arguing in federal court about it. Okay? So that was decreasing not only the Harris County jail population, which is terribly large, but it was also drastically decreasing the state jail population.

James White: So I think there's a lot of work all of us can do on the state and the local level. We're pointing at each other, but I think we all need to be pointing at ourselves.

Scott Henson: Chairman White suggested that much of the complaint about high property taxes could be laid at the feet of local actors in the criminal justice system.

James White: This is what interests me a lot. I see a lot of uniformed, proud uniform men and women going into the extension to the house bill, Senate bill to property tax rollback hearing and discussing how having such a low rollback rate at 2.5%, that's just going to wreak havoc on their ability to budget. I wish they would probably stop in the corrections committee and talk about the folks that are being warehoused in their jails suffering from mental illness at 100 bucks a day to their taxpayers. I wish they would stop in chairman Collier's, Nicole Collier's committee and talk about how a jailing folks for fine only misdemeanors and only because their fine only misdemeanors, so it's not like they had a warrant out for the arrest and they had some other drama going on. It's just, well that's taxpayers too.

James White: So, I wish there was some, and I may get in trouble with this but we're going to say it anyway, but I wish there was some genuineness in the argument. Okay? And I understand the issue about accountability and all of that. But if you're going to come up here and talk about the state's share of indigent defense and what we're doing as far as getting blue warrants out of the county jails, moving the convicted felons out as soon as possible, I think we also need to look at ourselves locally and what is that buying force? When we could just grab the person and just tell him for a couple of hours I need you to walk down the street here and help us out on maybe a trash cleanup or something like that, community service, that's where I'm going with that. So it's all of that.

Scott Henson: Next up in a new segment we're calling Data Corner, I want to introduce Just Liberty's newest employee, Chris Harris, who has been doing a lot of research on Class C misdemeanor arrests and warrants. Chris, welcome. How are you doing?

Chris Harris: I'm doing just great. Thanks for having me.

Scott Henson: Thank you. Tell us about your research. Tell us what you found.

Chris Harris: Well, we're now entering we're at roundup season here in Texas where hundreds of local jurisdictions will use basically the threat of arrest in an attempt to get people to pony up on old unpaid citations, mostly traffic tickets. And so, like you said, I'm here today to talk a little bit about the numbers around class C warrants and arrests as well as maybe some of the efforts at the legislature this year to address this issue.

Amanda Marzullo: That's really exciting. I had a question because I'm not that familiar with warrant roundups, so by season, is this a formalized time? What makes this time of year special?

Chris Harris: Oh yeah, that's right. So what makes this time of your special is that law enforcement are actively out trying to execute these warrants in a more aggressive way. Some cities and jurisdictions have in recent years tried to give amnesty periods and tried to bring people in to collect the money up front. But for those of you that potentially have a warrant, you might be receiving a phone call or a notice in the mail, a about a potential impending arrest of yourself or someone in your family if you have one of these outstanding warrants.

Amanda Marzullo: So what is the season? When did they do this?

Chris Harris: Ah, yes. So they do this really starting around now into early March is when the warrant roundup season really happens.

Amanda Marzullo: So people with outstanding warrants either be proactive about it or go to Oklahoma until April. Is that what you're saying? I would never advise anyone, as a member of the bar, I would never advise anyone to engage in illegal activity.

Chris Harris: Thank you for that disclaimer.

Scott Henson: Well, really the worst case scenario, what you see is cops actually going to people's homes with a credit card swiper and saying, I will arrest you right now if you do not swipe your credit card and give me money. So really it's just turning them into glorified debt collectors.

Chris Harris: And so this is a big issue as it relates to class C's because classC's are fine only penalties. So you could get up to $500 fine and that's it. There's no jail time. Normally that would come from being found guilty for a Class C and these are overwhelmingly traffic violations. Again, it's a fairly common in the state of Texas either to be arrested upfront for this, despite the fact that jail time couldn't result if you're found guilty or on the back end if you have failed to pay or are unable to pay the fines associated with that Class C, to potentially face some form of arrest or jail time for it.

Scott Henson: What can you tell us about how many people have outstanding Class C warrants and sort of what does this group look like?
C
hris Harris: Yes, so the latest data I've seen that's statewide is from 2015 and there were approximately 3 million outstanding class C only warrants.

Scott Henson: There's only about 16 million drivers, people with driver's licenses.

Chris Harris: That is true. Now you know, people can have more than one warrant, so that doesn't necessarily mean that one in five or one in six people or drivers have a warrant, but there is a warrant out there for about one in five to one in six of the adult driving population in Texas at any given time. And if you look at some of some counties it's even more stark. So in Dallas County, the last numbers I've seen were 230,000 active class C warrants, and that's in the whole county of about 2.4 million at the time that those numbers were run. So that's about one warrant for every nine individuals in the county. In Corpus Christi, just this year they have 201, they have 48,000 outstanding class C warrants for a population of about 330,000 folks. So that's about one in seven. And in Fort Worth was the most stark that I saw. In the city of Fort Worth. There were 300,000 outstanding class C warrants, and they have a population of just under 900,000, and that was for 2018. So almost one warrant for every three people. Now again, not necessarily three people have a warrant, but it's a lot of warrants.

Scott Henson: But that's a lot of warrants. That really is remarkable. And we know that, for example, in 2017, 524,000 people sat out their Class C misdemeanor debt in jail. They paid their debt with jail credit. So if you have about 3 million outstanding warrants at any given time, about half a million people, 524,000 that year, satisfying with jail credit, that's a lot of churn, sort of. That's a huge volume, hundreds of thousands of people who are at risk at any point in time and in fact incarcerated at any point in time over this.

Chris Harris: That's right, and you know, I think when folks are serving jail credit for these offenses, then that's a really clear sign that they simply don't have the money to pay because most folks would not take jail time in order to serve off these fines related to class C warrants. And so the fact that jurisdictions are not allowing folks other opportunities to pay off their debt, they are simply making them serve out jail time is really problematic and obviously creates a lot of hardship for those folks.

Scott Henson: Right and just to put a pin on that in 22 states, they don't treat traffic offenses as criminal. In many states they're simply civil penalties. So for example, if you get a traffic ticket in Arizona and you do not pay, it does not go to a failure to appear warrant and then someone shows up with a credit card swiper in March. Instead they send it to commercial collections. And just like any other debt that you didn't pay when Visa or the cable company doesn't get their final bill, they don't get to have you arrested for it and it doesn't make sense to have you arrested for this Class C misdemeanor debt. Especially when we know, for example, the Federal Reserve has said that 40% of the American public cannot pay a $400 bill without selling something or going into debt. 20% of the American public cannot pay their current month's expenses. And so not nearly that many people are getting their fines and fees waived. Huge numbers are sitting their time out in jail instead. And this is a modern day debtors' prison issue.

Chris Harris: Yeah, that's exactly right. And I think the other important thing is I think it's important to highlight the hardship to individuals that are arrested and serve out their time in jail, but also the cost to the counties is considerable. Being in jail costs taxpayers at least $50 a day, depending on what county you're in. And so this actually doesn't make money for these counties, it actually costs county's money.

Chris Harris: Yeah and so the other important aspect of class C arrest is, is the upfront, right? So you can get arrested if you don't pay the fine or fee on the backend. But currently in Texas police also still have the discretion in most places to arrest people at the time of the offense. Obviously most famously in the case of Sandra Bland in Waller County in 2015. And so we've also done some number crunching on that and in Austin in 2017, for instance, the numbers were about 9% of arrests were for class C only. If you added in related warrants, that bumped up almost 14%. Of all the arrests in Austin by EPD that year, there was some analysis that I helped out with TCJC put out in looking at arrest in Harris County in 2016, and that looked at about a four month period and found that about 11% of all arrests that led to a booking in Harris County jail were for class C only offenses. And so we can see a really, a prominent number, ranging in round 10% up front of arrests being class C only offenses. And so this is taking up a lot of police officer's time, obviously a lot of time at booking. In addition to again, putting someone in jail, making them potentially post bond for an offense that they would not receive jail time for when found guilty by a court of law.

Scott Henson: Since we're discussing class C misdemeanor traffic ticket debt, here's a little ditty Just Liberty put together to promote debtors' prison reforms in Texas.

Scott Henson: Now it's time for our rapid fire segment we call the Last Hurrah. Are you ready, Tiger?

Amanda Marzullo: I'm ready. All right. First one, the Intercept reported that some state and local corrections officials, including in Texas and Travis County, have been secretly building voice print databases of inmates and people that they talk to you on their phone systems. So Scott, are you surprised by this?

Scott Henson: You know, I'm not surprised by much anymore, but this is really frigging creepy.

Amanda Marzullo: It's totally creepy.

Scott Henson: It is totally creepy and I guess next they're going to be uploading it to the NSA who's monitoring all our phone calls anyway.

Amanda Marzullo: Then the cyborgs are gonna come for us.

Scott Henson: Yes, this is not going to end well.

Amanda Marzullo: No.

Scott Henson: The Senate Finance Committee started discussing long lines at DPS license centers, but the focus was entirely on increased DPS staffing, ignoring the role of license suspensions and other regressive policies that add people unnecessarily to the lines. Mandy, what should they be focused on instead?

Amanda Marzullo: They should be focusing on license suspensions and the role that the DRP, the driver responsibility program is playing in this DPS overload.

Scott Henson: Lots of extra people in those lines for no reason.

Amanda Marzullo: Yeah. Okay. Last one. TDCJ can't hire enough prison guards, particularly in some of the rural facilities and the ones that they do hire seem to be leaving as soon as they can. In response, TDCJ is asking the ledge for money to raise guard salaries. Do you think this will fix the issue, Scott?

Scott Henson: Honestly, they've raised guard salary several times now. Every time they say it's going to fix the issue and it never has. Some of these rural units will never be adequately staffed because there simply are not enough human beings living out there and they're going to have to close them. In addition, if you really want to keep people for longer than six to nine months, you might consider providing air conditioning.

Amanda Marzullo: Yeah, it's okay to maybe work there in January but come June ...

Scott Henson: That's right, it's not a July and August job if you're not going to provide air conditioning. All right. We're out of time, but we'll try and do better the next time. Until then, I'm Scott Henson with Just Liberty.

Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Goodbye and thanks for listening.

Scott Henson: You can subscribe to the Reasonably Suspicious podcast on iTunes, Google play, or Sound Cloud. We'll be back next month with more, hopefully better news And until then, keep fighting for criminal justice reform, it's the only way it's going to happen.

Transcribed by Rev.com, with minor edits for accuracy and clarity.