Podcast: Elsa Alcala says Texas death penalty unreliable; parsing new TX traffic-stop data; prospects for Lone-Star marijuana reform, and other stories

Here's the March 2018 episode  of the Reasonably Suspicious podcast, recorded last week on the SXSW Podcast Stage hosted by Cadence13. Former Texas Court of Criminal Appeals Judge Elsa Alcala was our special guest, focusing on junk forensic science and the death penalty.


Here's what's on this month's show:

Opening Riff
Would permanently shifting to Daylight Savings Time reduce crime?

Top Stories

• Prospects for marijuana reform in Texas
• New data on use of force at Texas traffic stops
• Legislative proposals to end the Driver Responsibility surcharge

Forensic Focus
Judge Elsa Alcala discusses junk science cases at the Texas Court of Criminal Appeals.

Death and Texas
Judge Alcala discusses the evolution of her views on capital punishment, from proponent to critic, and what the Texas Legislature should do to fix the state's unconstitutional laws on executing people with developmental disabilities.

The Last Hurrah

• More corruption revealed after botched drug raid in Houston
• Should stealing Amazon packages become a felony?
• Closing the "Dead Suspect" loophole to the Texas Public Information Act

Find a transcript of the show below the jump.

Transcript: March 2019 episode of the Reasonably Suspicious podcast, co-hosted by Just Liberty's Scott Henson and Amanda Marzullo of the Texas Defender Service

Amanda Marzullo: Hi. This is Amanda Marzullo. An economist from Texas A&M argues that switching to daylight savings time year round, would measurably reduce crime. According to her analysis, the extra hour of daylight in the evening would reduce crime the same way that lighting makes parking lots and street corners safer. However, the extra hour of daylight in the morning does not provide the same benefit, she says, because criminals are not early risers.

Amanda Marzullo: A bill pending at the the Texas legislature would shift Texas permanently to daylight savings time. Scott, is it time to change the time?

Scott Henson: I'm not sure if I agree that changing the time won't reduce crime in the mornings. When time changes in the spring, I'm always groggy for about two days and I find that I commit very few crimes during that period. And so I'm not sure I buy that. But maybe in the aggregate, more light in the evenings would reduce crime more. That's probably what it is.

Amanda Marzullo: Yeah, I just disagree with her assumption that criminals are not early risers. In my experience, these are the most enterprising individuals I know.

Scott Henson: Whatever it takes kind of people.

Amanda Marzullo: Yeah, exactly, yeah. They make it happen.

Scott Henson: That's probably true. All right, hello boys and girls and welcome to the March 2019 episode of the Reasonably Suspicious podcast, covering Texas criminal justice, politics and policy. I'm Scott Henson with Just Liberty here today on the South by Southwest podcast stage with our good friend Mandy Marzullo who's the executive director of the Texas Defender Service. How are you doing today Mandy?

Amanda Marzullo: I'm great. How are you?

Scott Henson: I'm really excited to be here. Normally Mandy I record this podcast over a bottle of scotch in her office with only her dog listening so having an audience with opposing thumbs is really a big change for us and we appreciate you all being here. Coming up, will the Texas legislature finally reduce marijuana penalties in 2019? Why do Texas courts allow testimony from hypnotized witnesses? And of special interest to South by Southwest participants, we discuss new data showing Austin drivers are more likely than anywhere else in the state to get their asses kicked by police at a traffic stop. We'll be joined later by Judge Elsa Alcala who recently retired from the Court of Criminal Appeals and is now working with Mandy to promote criminal justice reform at the legislature.

Scott Henson: Mandy, what are you looking forward to on the podcast?

Amanda Marzullo: Talking to Judge Alcala. I'm always happy to be talking to her.

Scott Henson: Excellent. Me too.

Amanda Marzullo: First up, in our top story, reducing the penalties for marijuana possession seems to have real momentum at the capital. Scott, what's on the table? And what do you think will actually pass?

Scott Henson: This is a really exciting moment because marijuana penalty reduction has been proposed in Texas basically every year for the last 20 years. And has never really gotten as much momentum as it has today. Since the last legislative session, the Republican party of Texas actually included in its platform, a provision to reduce penalties and create a civil penalty for marijuana. It basically decriminalize is what the Republican party has proposed. Governor Greg Abbott, during a debate with his Democratic opponent last year, came out for not decriminalizing but reducing the penalty. Keeping it a criminal penalty but making it like a traffic ticket. And so there have been bills filed basically on both these avenues. We don't really know which is going to happen or either really. I guess there's still a lot of ways for these things to fail. But, it's an exciting moment. There's about 75,000 people a year arrested for marijuana in Texas. It would be a big change.

Amanda Marzullo: This traction is really exciting. Around here at the festival you hear people talking about the potential tax revenue from marijuana. Is that something that is potentially on the table here? What are the implications?

Scott Henson: Texas is probably not, is not really yet at the legalization stage. We're not yet having tax and revenue and there's not going to be storefronts.

Amanda Marzullo: I'm not going to be able to buy it any time soon. You wouldn't recommend that.

Scott Henson: You can probably go down the street right now. That's probably not really a problem but they won't be paying any taxes on it I guess is what the issue would be. There is an economic angle. A lot of this in Texas is being pushed because fiscal conservatives, and this is why the governor is on this because fiscal conservatives are mad about paying for jail time for pot smokers. If they're indigent, then they have to pay for a lawyer because it's a serious enough crime to where you get to have an attorney. The police officer who arrests somebody, they may be taken off the streets for two or three hours while they take somebody down to the jail and book them and get all that processed. There's a lot of economic cost to local government that would result in savings and I think that's more what people in Texas are really looking for.

Amanda Marzullo: Yeah, and just to give people a sense of the figures. Jails spend somewhere between $50 and $100 a night to detain somebody. At 75,000 people, that's $7.5 million right there that can be saved at the county level.

Scott Henson: Yeah, if they're just only in for one night a piece and of course the maximum punishment for marijuana in Texas is up to six months in jail and up to a $2,000 fine so it's potentially a lot more than that really.

Amanda Marzullo: Next up, in 2017, the Texas legislature passed the Sandra Bland Act which was named after the young teacher who was famously arrested in Waller County for failing to signal a lane change. She then died in custody at the county jail after an apparent suicide because she couldn't make a $500 bond. Language in the bill to forbid such arrests was removed in the Texas senate, however the act that passed requires that law enforcement provide extensive information regarding their arrests and the use of force at traffic stops. And the first reports were released on March 1st. Scott, what's new about the reporting? And what have we learned so far?

Scott Henson: This is actually very, very interesting to me. Texas for years has gathered racial profiling data that was designed to tell us whether there was racial discrimination at traffic stops. There has been for years, demonstrated in these reports, disparities in who is stopped, disparities in who is searched. But the data was very limited. There were just a couple of data points and the statisticians really couldn't dig very deeply into these questions.

Scott Henson: The Sandra Bland Act last session, changed all that and we now have these incredibly detailed reports. The information that was most startling is we got new details about how often police use force at traffic stops. How often basically, the driver is injured by the police officer through a use of force incident. And it turns out that Austin Texas, Austin has the highest rate in the state, by far.

Amanda Marzullo: 71.

Scott Henson: At rate per 10,000, they were at 71 per 10,000. Houston PD was at 53. Most everybody else, the Texas DPS which was fifth in the state was at like 17 and everyone else was much, much lower.

Amanda Marzullo: Fractions of one.

Scott Henson: That's right.

Amanda Marzullo: In the decimal places.

Scott Henson: That's right. In my hometown of Tyler Texas which is in northeast Texas, people in Austin are the 335 times more likely to have force used against them under traffic stop in Austin than they are in Tyler. It's a big disparity. In the scheme of how often this happens to people, it's not every traffic stop. It's not everyone who's pulled over but Austin has a much more serious problem. It's not something anyone knew before this data. There was no way before this happened for anyone to even have a window into that.

Scott Henson: Another thing was arrests at traffic stops for just the classy misdemeanor. For when you're pulled over for whatever the traffic offense is.

Amanda Marzullo: Failing to signal a lane change.

Scott Henson: A lane change like Sandra Bland. Sandra Bland had failed to signal a lane change. She was pulled over, she back talked the cop and he decided, I'm just going to arrest you for this underlying failure to signal a lane change. We never had data before on how often this happens. Just like with the use of force, it turns out that there's wide, wide disparity. The place in Texas where you're most likely to be arrested at a traffic stop is in Waco. It turns out almost one in 20 drivers pulled over are arrested in Waco. This is crazy. The rest of the state is far, far lower. There's a handful that are 450 out of 10,000 in Waco, around 400 out of 10,000 in League City. There's a few others that are up there that high and then everything else is just really, really low.

Scott Henson: You're seeing that there's some agencies that are outliers on this where there's a policy for whatever reason to do these arrests more often.

Amanda Marzullo: Yeah, there are some counties that brag that they're a zero real estate tax jurisdiction and that means that they're pulling over everybody that they can.

Scott Henson: That's right.

Amanda Marzullo: When they drive through.

Scott Henson: That's right. And I think the example you're thinking of is in Lumberton Texas where 16% of their city budget is from traffic fines but they don't have any local property taxes. Exactly.

Amanda Marzullo: They're saving people money. Makes total sense. For me, this kind of brings home just how much the law is about implementation and also that we have so many criminal justice systems in this state. This doesn't just happen at the law enforcement level, it also happens in the courts where people who have the same conviction with the same background in different areas of the state, will have radically different sentences.

Scott Henson: Right. County by county, city by city, it's very different.

Amanda Marzullo: Prosecutor to prosecutor.

Scott Henson: Right. And usually we don't get the sort of data, the level of data to make those distinctions. At a prosecutor agency it may just look like the whole agency is one way. Well it may just be a few prosecutors driving the train. Similarly with this, you look at statewide data on arrests or whatever, turns out it's just a handful of agencies are really extreme and others may not be but we didn't have this window until now to really see. There's a lot more data that just came out. This was kind of extraordinary. We did not get the big win in the Sandra Bland Act that we wanted which was to say, "You just can't arrest people for those low level traffic offenses." 11% of arrests in Harris County, Houston for example, are these classy misdemeanor traffic ticket level arrests. It's a lot of folks. We didn't get that but getting transparency, getting some data and reporting on how often it happens, has almost immediately transformed the debate because we now can see the problems very plainly that before were obscured.

Amanda Marzullo: Yeah, we're more to come folks.

Amanda Marzullo: All right, next, Texas boasts more drivers with a suspended license than any other state. Specifically, more than 1.7 million people in Texas, the overwhelming majority of whom lost their licenses due to a little known program called the Driver Responsibility Surcharge. Essentially when people are ticketed for no insurance, driving without a license or even a DWI, not only do they have to pay the fines that are associated with the crime, they also have to pay steep surcharges every time they renew their license for the next three years.

Scott Henson: These surcharges are so high that the majority of drivers can't pay, causing their licenses to be suspended. But the legislature has struggled to get rid of this program because the money collected goes to fund trauma centers at Texas hospitals. Legislators can't end the program without finding new money for those hospitals. More than a dozen bills have been filed this year to abolish the Driver Responsibility Program with an array of alternatives for funding. Mandy, is this the year Texas finally gets rid of this monstrosity?

Amanda Marzullo: God, I hope so. This program has created so many problems for so many people. 1.7 million people.

Scott Henson: There's only 16 million drivers. That's more than 10%. It's like a lot of folks.

Amanda Marzullo: It's an incredible number when you think about it. I think what is exciting about this year is that there finally is a conversation about how to replace the funding. The problem that reform activists like you and me have is that no one can really argue that funding trauma centers isn't important. It's something that we all need.

Scott Henson: That's right, you can't bad mouth the hospitals. Everyone likes them. They're not.

Amanda Marzullo: When I talk about this with my family, they're like, well not. Your opposition are the hospitals that I can't think of anything that would be harder to argue against.

Scott Henson: That's right, unless it were the just the maternity ward in the hospital.

Amanda Marzullo: Or pediatrics or something. What's great this time is that people are talking about well, this is a bad way to raise money so how else can we fund it finally?

Scott Henson: Right. They're finally looking at some broader based sources of money. When you say okay, everyone who's ticketed for no insurance, is going to pay for this through your surcharges, well honestly if they could've afforded the surcharges, they would've paid for their insurance in the first place. It doesn't really make sense to hone in on this small group of people and say, "You're going to be the ones who fund the hospitals." Some of the things they're looking at now are more broad based and make really a lot more sense. They're looking at for example, an extra $2 fee on auto insurance policies. Well everybody has to buy auto insurance and so it spreads the pain out among everybody and probably would just make a lot more sense.

Scott Henson: I do think that no one in a Republican controlled legislature wants to raise fees, raise taxes, increase revenue sources. That's always a dicey thing but the harms from hundreds of thousands of people having no drivers license, can't get a job, all the things. Think about all the things, you can't get a bank account. All the things that you use your drivers license for. Hundreds of thousands of people are simply excluded from all those aspects of public life.

Amanda Marzullo: Yeah, and you've talked about this a lot on your blog but it also triggers this recycling that is disruptive to their lives. If law enforcement knows that you don't have a license, you're likely to be pulled over if they just see you driving around in a small town. And that means that you could be interrupted on your way to work and having to deal with an arrest and you lose your job again.

Scott Henson: Right. About half the people who've ever gotten these surcharges in Texas, could not pay and to this day don't have their drivers licenses. They're people who lost their licenses 14 years ago and still don't have it back 'cause they'll never be able to pay those surcharges.

Amanda Marzullo: And they'll never be able to not drive either.

Scott Henson: It's time for the legislature to fix this for sure.

Amanda Marzullo: It's exciting.

Amanda Marzullo: Next up in a segment we call Forensic Focus, a Texas state legislature wants to end the practice of using forensic hypnosis to supplement eyewitness testimony. Meanwhile the legislature considers whether to apply the state's first in the nation junk science writ to sentencing proceedings.

Scott Henson: Joining us for this segment and the next one on capital punishment, is judge Elsa Alcala, a recently retired Republican member of the Court of Criminal Appeals. For the uninitiated, Texas is one of two states that has separate high courts for criminal and civil matters. And the Court of Criminal Appeals is the equivalent of the Texas Supreme Court for criminal cases. Judge Alcala was appointed to the court by governor Rick Perry then returned to the bench by the voters before leaving when her term expired this January. And she's now joined Mandy's shop as policy director for the Texas Defender Service. Thank you for joining us Judge.

Elsa Alcala: Thank you for having me.

Scott Henson: Let's start with forensic hypnosis. Mandy and I have covered this a couple of times in the podcast and now state Senator Chuy Hinojosa's filed senate Bill 130 to ban this practice. Judge, can you explain to a layperson how fairly obvious examples of junk science like this can make it into the courtroom.

Elsa Alcala: Sure. Let me talk about three cases that were decided while I was on the court in the last seven and a half years. One of them was Neil Hampton Robbins. He was convicted of murder for the 1999 death of a 17 month old child. The child was found unresponsive in bed and was found to be deceased. A medical examiner testified at trial by saying that it was an intentional homicide based on the physical signs that she saw on the child.

Elsa Alcala: Well it turns out, years later, in 2015 or 16, that same medical examiner came forward and said, "Well, I've re-looked at the case and I don't know. I don't know if what I said was right or I don't know if it was wrong. I just don't know." Also at that trial there had been a defense expert who had said, "This was not an intentional death at all." When my court reviewed that case, we held that the conviction needed to be reversed on the basis of that bad science from the medical examiner.

Elsa Alcala: There was another case just in December of 2018 where my court reversed, I say my court, I'm not on the court anymore.

Amanda Marzullo: Yeah, but you were at the time. You can say it.

Elsa Alcala: Old habits die hard. I will continue to say my court by mistake but I'm doing it accidentally. The Court of Criminal Appeals when I was on it, held an ex parte, Stephen Mark Chaney who also was convicted of murder that that case needed to be reversed due to bad science that was used to convict him. In that case, the victim had a bite mark on his arm and forensic odontologist testified that that bite mark was made by Stephen Mark Chaney. They actually identified him as the person who made the bite mark.

Elsa Alcala: Fast forward a couple of decades and now odontologists in the scientific community all say that you just can't do that. That expert had said that there was a one in a million chance that somebody other than Stephen Mark Chaney had bitten the victim and today the medical community or the forensic medical community just says, "That's just garbage. You just can't do that." That case was also reversed and he was actually found innocent of that offense after spending I think almost three decades or three decades-ish in prison for murder.

Scott Henson: I think that made Texas the first state in the country to basically get rid of bite mark evidence. For the courts to say, "You can't use that anymore."

Elsa Alcala: I think that's right. And then there's another case that is even more kooky than this bite mark evidence. That's the case of Richard Lynn Winfrey who also was convicted of murder. In that case, there was this dog handler by the name of Deputy Keith Pikett who worked for the Fort Bend County sheriff. He was the sole guy to do this. But he had this bright idea, well if dogs can take a scent and find let's say a lost person, I'm going to now do a lineup with a dog. Deputy Pikett took the victim's clothing and had the dog smell the victim's clothing. And then he took the scent of the suspect and five other men. He did the lineup with six men's scents and I don't recall how he got the scents.

Scott Henson: He swabbed it with gauze.

Elsa Alcala: Okay, it's more scientific than I was visualizing. He gets the scents of the men and puts the scents into these paint cans and then he lined up the six paint cans and had the dog walk in front of the paint cans and then the dog apparently alerted on Winfrey's scent and Pikett surmised that because he alerted on the paint can that had the defendant's scent, the dog was identifying the defendant's scent as having been on the victim's clothing and therefore the defendant had been with the victim.

Elsa Alcala: All of that is just garbage. It's just created fiction on the part of this deputy but it was admitted. You know how many cases.

Scott Henson: Hundreds of cases. And just as a crazy aside on that, 'cause that really was one of the nuttiest forensic stories I've ever heard. The scent lineup, the idea for a scent lineup is actually something that was only otherwise done in communist countries. It was created by the East German Stasi back during the Cold War and the only other country anywhere that uses this is communist Cuba and Castro was using scent lineups to try and identify people who had done anti-government graffiti. If you can imagine in Cuba. But again, completely junk. The idea that you're going to go to a graffiti site and identify somebody's smell and then use a dog to identify them.

Amanda Marzullo: With paint around in both examples.

Scott Henson: Is completely crazy and yet, this brings me off of my original question, how does this get in? Because that is nuts. The idea that oh you bit somebody and I can look at that bite mark and say for sure Elsa bit that person. How does these completely dubious non-scientific forensic methods continue to get into American courts? The Pikett case was I think 2015 or something. This is pretty late in the day in the 21st century to still be using these kind of bogus scientific methods in criminal court. Why is it happening?

Elsa Alcala: One of the things that had bugged me the most or one of the things that bugged me the most when I was on the Court of Criminal Appeals is this idea of we've always done it this way. Let's say for example, one judge somewhere decides to admit the Pikett evidence. Well then the next court faced with this would be told by Pikett and that court, no this is valid stuff. This other court's admitted it and all these other courts have used it. It gets used. Once one court does it then that's used to build up on it and it gets used over and over again until somebody somewhere has the resources to get the competing expert or the competing evidence to say, "No, this is a bunch of garbage." And that really ties into the bigger systemic problem that I wrote about a lot when I was on the Court of Criminal Appeals which is that we have a real problem in Texas with the failure to appoint counsel to indigent defendants on habeas, post conviction because Texas doesn't have a real mechanism for challenging the effectiveness of an appointed attorney or any attorney.

Elsa Alcala: It's to me, a bigger systemic problem. Let's say you have a bad lawyer, a defense lawyer. The defense lawyer doesn't object at trial because whatever. He doesn't object or maybe he asked for an expert and he was denied an expert so he doesn't have money or doesn't know to do it or he's not very good or whatever. Then the stuff comes in. Then the client wants to say, "Oh I had a really bad lawyer. I have all these challenges that the lawyer didn't make." But then, the only way to do that is on habeas and he's not entitled to an appointed lawyer on habeas.

Elsa Alcala: To me, all of this is part of a big systemic thing. I look at bad science and I think, yeah, there's bad science but it's more than bad science, it's bad science in a system that doesn't have a real way of challenging a bad attorney. And that's been one of big gripes in Texas.

Amanda Marzullo: Defense lawyers are just under resourced in Texas. You're appointed by the judge who's also in charge of the indigent defense budget and doesn't really want to spend a lot of money and you have to ask them, convince that person who's also in charge of your livelihood, to give you more money. It doesn't make sense, if you think about it.

Elsa Alcala: I want to add to that, there's been this big debate even in Austin about well, do you have solo lawyers or do you have a public defender and why and how is a public defender superior to a solo lawyer? And my answer is, look at these science cases. If you have a public defender's office, they're going to be aware of these problems that are come up over and over and over again. They're going to find the experts that they're going to use over and over and over again. And they're going to have the resources to really challenge this bad stuff in court. I think a solo lawyer, even the most educated, well intentioned lawyer, is going to have a challenge taking on an issue involving complicated science. 'Cause again, lawyers are not scientists and the joke is, we're not good at math, that's why we're lawyers.

Scott Henson: That's why we went into law. That's why we went to law school.

Elsa Alcala: We went to law school. We're not good at the science stuff. That's the problem is that is that you have lawyers trying to understand science and it's a real challenge 'cause we're not experts in that field.

Amanda Marzullo: And expert testimony is just really persuasive to the jury. It really is and that's where it's really hard also if you're a solo practitioner. For example, Chaney had an alibi which I believe was presented at his trial. He was elsewhere.

Scott Henson: I think he had a bunch of alibis. I think he had like nine alibi witnesses that they disbelieved because some guy in a lab coat said the bite mark matched.

Amanda Marzullo: There's a one in a million chance. Now, bite mark evidence is so botched that you can't find two experts to agree on an outcome.

Scott Henson: Next up, Judge Alcala will stay with us for our regular segment on capital punishment titled, Death in Texas.

Scott Henson: As mentioned earlier, Judge Alcala's also Mandy's new colleague serving as policy director at the Texas Defender Service. And someone I've admired for a long time. Judge, your views on capital punishment have evolved very publicly over the years from a tough on crime prosecutor at the Harris County DA office during the Johnny Holmes era to perhaps the state's most prominent death penalty critic. Over the course of your eight years on the bench, the court presided over 92 executions. Tell us what you learned from that experience and how and why your opinions have changed since your days as a line prosecutor.

Elsa Alcala: I graduated from law school in 89, here from UT Law School and went straight to the DA's office working for Johnny Holmes who's infamous for being the most death seeking prosecutor I think. At least in his era. I'm not sure if he's still holds that title but at least at the time he was a tough on crime prosecutor. But frankly, back in the 80's that was the mentality. There really was a tough on crime mentality. It was put them in prison, throw away the key. The more time the better. There was also a crack epidemic going on. There was just, I think I tried something like 10 murders one year. Something like that and I got 10 life sentences. There was just a lot of crime in Houston in the late 80's, early 90's and again the mentality was either lock them away and throw away the key or you seek death on them. That's the culture that I was employed by.

Elsa Alcala: When I interviewed for the office, they asked me, "How do you feel about the death penalty?" I told them what I'd heard at law school. I'd just come from UT Law School and I said, "Well, I don't think we should do it." And they asked, "Why?" And I repeated again what a professor had said, "That it doesn't make a whole lot of fiscal sense to do it. It's just not a good fiscally responsible thing to do." One of the senior prosecutors there, like the second guy in charge or third guy in charge said, "Well stick around for five years and we'll see how you feel then."

Elsa Alcala: By that he was right. I started out thinking, oh I'm not so sure but after five years of seeing victim after victim after victim and all these horrible things that were done to these innocent people, innocent victims, I did fall into that position of absolutely death is right. That's what we've got to do. It's important for the victims and it's important for society. That's why I started and I tried three death cases, two of them got the death sentence. One was 17 years old at the time, Eddie Captilla who got the death sentence and now I have two 19 year olds and a 16 year old child and in my head I think, oh my gosh, that was just a monster of a thing to do to seek death on a 17 year old. At the time I was focused on the victims. It was just a horrific crime. Anyway, it was a horrific crime where young people had been killed and at the time I did believe it was the right thing to do.

Elsa Alcala: Now he did not get executed because the United States Supreme Court has since held that the death penalty is inapplicable to somebody who's under 18. I'm grateful that the US Supreme Court has stepped in and not allowed the execution of somebody under 18.

Elsa Alcala: And then the second one who's on death row, his name is Gerald Eldridge and he remains on death row today. He's been there 30-ish years or maybe 25 years. He always claimed that he was mentally ill and we come back to experts. He always said from day one he was acting out and acting mentally ill but the experts, the psychiatrists told me and testified in court, that they were watching him 24/7 in prison and they said, "Well, he acts one way when he's in front of the psychiatrists being evaluated and so on but then when we're watching him in the game room and at these off hours and socially, he is not acting like that." And so they said, "He's malingering. He's faking." I believed that.

Elsa Alcala: Now again, fast forward to today and my skepticism about these experts, maybe I'm not so sure today. But back in the day, I believed it. I did believe that he was a malingerer and he had killed a nine year old girl, Sharissa who was asleep on the bed. He was mad at the girl who had dumped him and he chased her out of an apartment into another area and gunned her down while she was climbing up some stairs. Her new boyfriend had to jump out of the second story of the apartment and then a little boy, Tyrell, who was seven years old was also in the room and he shot, I think Tyrell was his own son and he shot at his own son towards the head the bullet ended up lodging in the shoulder.

Elsa Alcala: When I say I saw some horrific crimes, that's an example of just horrific crimes. Oh and of course, his criminal history was such that he had done essentially the same thing against a former girlfriend. Those are the kinds of things when prosecutors say, "Justice and we need it." And that sort of thing, you have to remember that's what they're seeing and they're talking to family members first hand who are upset and crying and are living through this horror. That's the kind of thing that's going on. That's where I started. And I don't know if you want me to stop or keep going.

Amanda Marzullo: What happened after then that sort of changed your view?

Elsa Alcala: I was at the DA's office for nine years and then I appointed trial judge for three and a half years by Governor Bush. I was elected to the trial court. Then I was appointed by Governor Perry to the First Court of Appeals and I won two elections to the First Court of Appeals. The First Court of Appeals does not deal with death cases. In Texas, the way that death cases get litigated is they get tried at the trial level and they get appealed straight up to the highest court which is the Court of Criminal Appeals. When I was on the First Court I didn't deal with death cases at all and it was nice actually. We dealt with, it's a general jurisdiction court so we dealt with family, probate, divorces, civil ligation, oil and gas. It was just, it was everything. Criminal too, but everything.

Elsa Alcala: And so that was a nine year break so to speak of the death penalty. Then I got appointed by Governor Perry to the Court of Criminal Appeals and was dealing again with death penalty cases for the first time in almost a decade. I didn't come with that former prosecutor mentality of, that first hand experience. I'd had a decade away from it and I was really having to approach things almost as if for the first time. Looking at things from a fresh perspective. I think that's where I started really questioning what was going on. Where I started seeing cases that were coming up and I saw convictions that had bad science like the things we've talked about. I saw guilty people who were being released and found actually innocent like Michael Morton who was convicted of murder or Anthony Graves who was actually on death row, almost executed. He had a couple of execution dates on death row and then it turned out that he was actually innocent and released from prison.

Elsa Alcala: But for some fortuitous discovery of evidence in his favor, Anthony Graves would have been executed even though he was innocent. I saw some terrible, terrible lawyering at the trial level, at the appellate level, at the habeas level. I saw just a confluence of things, bad science, bad lawyering, innocent people and I started realizing that the death penalty has some very significant problems. And I have said that the way I've described myself is to say, "I've lost confidence in it as a form of punishment." I haven't gone so far as to say we shouldn't have it. I still have that inner struggle seeing the victims that I saw and hearing some of those things. I still have some of that inner struggle remembering those cases. On the other hand, I am totally convinced we should not have a death penalty that isn't 100% reliable. And right now, it is not a 100% reliable. I'm not even sure it's 70% reliable. I think it is unreliable enough that we really should pause and seriously look at it and try to do a better job. We need to do a better job.

Scott Henson: Let's talk a little about the issue of executing someone with developmental disabilities. For years, the standard use in Texas to determine intellectual disability was based on outdated science and was at least partially derived from former judge, Cathy Cochran's analysis of the motivations of a fictional character from a book, Linney, in Steinbeck's of Mice and Men. When you were on the Court of Criminal Appeals, you authored several influential dissents on this topic, including in the Bobby Moore case, decided by the US Supreme Court earlier this year. Soon after you left the bench, the Supreme Court sided with your dissents and overruled the majority on the Court and congratulations, by the way. That was amazing. And now you're working with Mandy at the legislature, lobbying to create a new standard. Talk to us about the implications of what the Supreme Court concluded and what you think the legislature ought to do now.

Elsa Alcala: Sure. In Moore v. Texas, if you're not familiar with it, the United States Supreme Court said that what my court had been doing for almost two decades I think, was just wrong. We were just mishandling our assessment of how intellectual disability is determined. And the reason it's important is because the United States Supreme Court held in Atkins that intellectually disabled people cannot be executed for capital murder. That's been the law for many, many years. But what Texas had decided was that there was some intellectual disability that wasn't as bad as other intellectual disability and basically if you were mildly intellectually disabled, you could be executed but if you were more severely intellectually disabled, then you would meet the terms of Atkins.

Elsa Alcala: Well that was just wrong and it was wrong for a lot of reasons and it doesn't matter but it was just wrong. What the US Supreme Court said in Moore versus Texas was, when we said you can't execute intellectually disabled people, we meant that includes mildly intellectually disabled people. They were pretty elementary in saying, "No, this is pretty clear. It means all people, not just the ones you want to think are okay and the ones, not the ones you exempt out. We mean everybody who is intellectually disabled."

Elsa Alcala: They said that in their first Moore versus Texas opinion. Well then, the case went got remanded or sent back down to Texas to look at it again, and my court again held that Bobby Moore was not intellectually disabled. The US Supreme Court says, "You're doing it wrong. Basically he is." Sends it back down and then my court sort of thumbs its I'm not sure what the expression is.

Scott Henson: Thumbs its nose.

Elsa Alcala: Thumbs its nose. That doesn't make any sense.

Amanda Marzullo: No, it doesn't.

Elsa Alcala: I thought, that is a weird expression. That my court basically thumbs its nose at the Supreme Court and says, "No, we think he is not intellectually disabled and we're going to move forward with the execution." Well the defense lawyers correctly took it back up to the US Supreme Court and the US Supreme Court said essentially, "Can you not read? I thought we were pretty clear when we said that he is intellectually disabled." And there's a beautiful concurring opinion from Judge Roberts that I want to frame that basically said that, "Can you people read?"

Amanda Marzullo: He wrote, it was just two paragraphs.

Elsa Alcala: It was two paragraphs.
Amanda Marzullo: To make no one was confused.

Elsa Alcala: He said something like, "We agree that intellectual disability can be hard. Sometimes that there's some nuances and the law can sometimes be hard but not in this case because we told you. We gave you the answer and somehow you still managed to get it wrong." It was a pretty tough slap down and I dissented in both of those cases. I was on the prevailing side.

Scott Henson: I've really never seen a bench slapping quite like that. It was, I've never seen in Judge Roberts concurrence, the thing where he just says, "Really? You're not going to follow what we say? I'm Supreme Court Chief Justice here, you might want to rethink that."

Amanda Marzullo: And Cavanaugh also sided with the defense in this. It was not a five four. This was very clear.

Elsa Alcala: This was pretty simple stuff when it comes down to Supreme Court law. A simple decision. Now coming to the Texas legislature, I also think this is pretty simple stuff that the legislature should enact. The current bill does two things. Number one, it defines intellectual disability pretty much exactly the way the US Supreme Court just said to define it in Moore versus Texas. The second thing it does is it says that when you have to decide intellectual disability, you do it in front of the judge, pretrial, before you actually get to the trial on the merits.

Elsa Alcala: The reason why I think that's also a no-brainer is because the US Supreme Court said that, intellectual disability is based on current medical scientific criteria based on the typical behavior of a defendant. Well what some, I think unethical prosecutors want to do and I defend prosecutors, I think most of them are ethical, goodhearted, good motivated people, but I think some unethical prosecutors want to have this in front of the the jury and have the jury so inflamed by these horrific facts of the offense or so inflamed by the defendant's prior convictions, that the jury is so swayed by all of that that they're not able to make the decision based on current medical scientific criteria. And the US Supreme Court said, "This is not about the offense, it's not about his prior criminal history, it is simply about current medical scientific diagnosis of intellectual disability." And to me, that is properly done before trial and in front of the judge. And that's all the bill does. It's pretty straightforward. I think it shouldn't be controversial and frankly I think it should pass unanimously.

Elsa Alcala: Whether that happens I don't know but I really think it is that clear cut.

Scott Henson: Well good luck and thank you for joining us today. We appreciate it.

Scott Henson: Now it's time for our rapid fire segment we call, The Last Hurrah. Mandy, are you ready?

Amanda Marzullo: I'm ready. First one, the case of an agent at the center of a botched drug raid in Houston that left two people dead is also accused of perjuring himself and lying about a CI in another case that may have put an innocent man behind bars. Scott, how deep do you think this rabbit hole goes?

Scott Henson: I think it could go very deep. In Texas, we have seen several of these drug war scandals where corrupt cops were using bad CIs or accusing innocent people and in none of them was it just one or two cases. In almost all of them where you find one or two people being set up, you find quite a few. We saw 39 people pardoned in Tulia. We've seen a lot of episodes here where a corrupt cop sets up someone on a drug case. It's almost never just one.

Scott Henson: Thanks to free shipping associated with Amazon Prime, most package theft from so called porch pirates involves low value items. Books, clothing, stationary items or what have you. In the Texas House, state representative Gene Woo has suggested created a new felony for stealing packages delivered to someone's home. Mandy, does it make sense to charge someone with a felony for stealing a few books or a package of underwear?

Amanda Marzullo: No. Absolutely not. I may be really upset if someone were to steal my books or my underwear. They're both very important. But it's a low value item and it should be handled the way any larceny is.

Scott Henson: You sure? You don't need a felony for that.

Amanda Marzullo: No. I do think that sometimes poor driving should be a felony or driving below the speed limit on the highway. That I want to make a jailable offense. It drives me crazy. Underwear? No.

Amanda Marzullo: Last one, the new speaker pro tem in the House, Joe Moody from El Paso, has proposed closing the so called dead suspect loophole to the public information act. Making case records public when a suspect is killed by law enforcement or dies in custody if their case is adjudicated.

Scott Henson: When a family loses their loved one, whether in the drug raid in Houston or other cases where suspects die, refusing to give them information about what happened just adds insult to injury. Good for Speaker Moody for taking this on. Texas public information act could use a lot more attention. When I was a young man, it was among the strongest in the nation and it's really been gutted like a fish over the last quarter century and so closing this loophole is a good start.

Scott Henson: All right, we're out of time but we'll try and do better the next time. Until then I'm Scott Henson with Just Liberty.

Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Thanks to South by Southwest podcast stage for having us today and it was a lot of fun. Goodbye and thanks for listening.

Scott Henson: You can subscribe the Reasonably Suspicious podcast on iTunes, Google Play or SoundCloud. 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 happens.

Amanda Marzullo: Thanks. And a special shout out goes to Casey Slater for having us and to Cadence 13 for sponsoring the podcast.