Podcast: New evidence of Rodney Reed's innocence, first thoughts on the Atatiana Jefferson shooting, and the Mystery of the Disappearing Misdemeanor Arrests

Here's the latest Reasonably Suspicious podcast from Just Liberty:


This is the October 2019 episode of Just Liberty's Reasonably Suspicious podcast covering Texas criminal-justice policy and politics. This month, my cohost Amanda Marzullo and I interviewed attorneys for Rodney Reed, who is on death row with an execution date of November 20th. We plumbed unknowable but interesting questions about misdemeanor arrests, discussed the sad, grim, story of Atatiana Jefferson's shooting in Fort Worth, and complained that the moments spent reading and talking about a new ACLU report on how to end mass incarceration are time we'll never get back. :)

Intro

Okay, it's probably a crime for a former justice of the peace to pimp slap a Yankees fan at an ALCS game in Houston and make him cry, but it's also pretty funny.

Top Stories

• First takes on the Atatiana Jefferson shooting in Fort Worth (2:34)
• Evaluating ACLU decarceration recommendations for Texas (8:34)

Interview

This month, Mandy and I spoke to Bryce Benjet of the national Innocence Project and Quinncy McNeal of Mayer Brown in Houston on the Rodney Reed case. Reed is scheduled to be executed on November 20th. (14:38) This is excerpted from a longer conversation. I'll publish the full interview, which goes into more detail about debunked forensic testimony in the case, separately in a couple of days.

Suspicious Mysteries

Why have misdemeanor arrests declined? Why didn't they decline earlier when crime first dropped? What do we really know about why crime dropped or the relationship between crime and arrests? Mandy and I discuss some known unknowns. (27:15)

The Last Hurrah (36:40)

• Hard to reprimand Texas judges
• Years-long backlogs at crime labs
• Message sent by jury in prison-guard murder trial

As always, I've ordered a transcript and will add it below the jump when it comes back. Enjoy!

Transcript: November 2019 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by Scott Henson and Mandy Marzullo

Mandy Marzullo:              Hi, this is Amanda Marzullo and welcome to the Reasonably Suspicious Podcast. A Texas man was arrested for slapping a New York Yankees fan, which right there, I'd argue he had it coming, and making him cry during the second game of the American League Championship series against the Astros in Houston. Scott is this bad sportsmanship?

Scott Henson:                    I suppose. On the other hand, I'd point out that making Yankees fans cry is something I now have in common with the Astros Jose Altuve. And really if you're going to arrest somebody for pimp slapping New York Yankees, they probably need to put handcuffs on half of the Houston Astros pitching staff at this point. And so I feel like I'm in good company, at the very least.

Mandy Marzullo:              Yeah. I mean I think the arresting officers would say that it's not for making him cry because hell, it's a Yankee fans, but it's the slapping.

Scott Henson:                    That's right. Well and the funny part about this, I took credit for it, but in reality, the person who really did the slapping turned out to be a former Montgomery County Justice to the Peace. So, I really loved that part of the story. That was really something.

Mandy Marzullo:              Yeah, and don't get arrested in Montgomery county, folks. It's not good.

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

Mandy Marzullo:              Great. How are you doing Scott?

Scott Henson:                    Better now that the Astros are in the World Series. We have a fine show coming up for you today folks. An innocent woman is killed by police in Fort worth. Texas may execute an innocent man and we delve into the radical dropping misdemeanor arrest in Texas and across the country. Mandy, what are you looking forward to discussing on the podcast today?

Mandy Marzullo:              I wouldn't say looking forward to it because it's sort of a sad topic, but am excited about talking about the Rodney Reed case because it's fascinating and I think it's an important topic to cover.

Scott Henson:                    I'm looking forward to it to. Bryce Benjet, our guest today is a really smart guy and I'm looking forward to hear what he has to say. First up though, in our top story, Fort Worth police officer Aaron Dean shot and killed a black 28 year old woman named Atatiana Jefferson. After responding to a neighbor's 311 call for a welfare check. The neighbor noticed Jefferson's front door was open and her lights were on late at night, but it turned out she was up playing video games with her young nephew. Officer Dean, who has since resigned before he could be about the incident, decided to sneak around to the back of the house rather than going to the front door to announce himself. He saw Jefferson silhouette in the window and shot her three seconds later. Black community leaders in Fort Worth say this isn't an isolated incident citing a history of police shootings and unnecessary use of force against black people. Officer Dean has been formally charged with murder by Tarrant County's, Republican District Attorney. So Mandy, although we're still early in the process, what's your take on the latest police shooting in Fort Worth?

Mandy Marzullo:              If it really is part of a pattern of activity, it's definitely showing a problem with training and a need for a culture shift within the Tarrant County police department or within the police departments within Fort Worth. In this instance, there are a lot of questions about why a law enforcement officer wouldn't announce themselves, why they would fire their gun on someone who was in their own home and presumably just responding to someone being outside in this context. And as you said in sort of your layout, this wasn't a 911 call, this was just a 311 call to say, "Hey, someone's door is open."

Scott Henson:                    Right. And why you wouldn't just walk up to the door and say, "Hello, this is the police, is anyone home?" is beyond me. That's a very bizarre way to react, to sneak around to the backyard and peep in the windows.

Mandy Marzullo:              Whoever told this person not to do that instead of going to the front door. Kind of raises some questions.

Scott Henson:                    Well the poor man who actually called into 311 has been interviewed publicly and I feel so sorry for that fella. He just feels terrible. He obviously had no intention for anything like this to happen and he was doing it for her benefit. He didn't want anything bad to happen to her and just feels completely terrible. And I totally understand. On the blog, I had linked this in a way to the Amber Guyger case in that both of these officers, basically were just scared to death and shot first and didn't take a moment to deescalate, to think are there alternatives to just gunning someone down? And you mentioned police training. The critique I made and it is a critique that's been made by law enforcement officers themselves around the country increasingly, is that police training emphasizes to cops you're in danger constantly. You're in danger from everyone you meet. Anyone you stop at a traffic stop could gun you down. The most important thing is for you to get home to your family at the end of the night every night.

Mandy Marzullo:              Not the other people you're interacting with but you.

Scott Henson:                    That's right, but you. And in reality, this dramatically overstates the risks that police officers face on the job. When you look at the federal government census of fatal occupational injuries, police officers have a less dangerous, in terms of dying on the job, a less dangerous job than the people collecting your garbage. Than the average construction worker, than taxi drivers, than bus drivers and truck drivers, fishermen, farmers, ranchers, all these people have more dangerous jobs than police officers. And while I don't want to understate the extent to which police officers face other risks besides getting shot, nearly as many die in traffic accidents as die from a shooting.

                                                And certainly they're at risk of being subjected to other lesser level assaults and other types of injuries. But in terms of actually not going home to your family at night, it's not the most dangerous job in the world. And so all of this police officer training that frames use of force around this heightened sense of risk that really is not reality based, I think is a huge part of the problem. Amber Guyger had gone through deescalation training and she testified that she never thought to use any of it there. Officer Dean had completed 40 hours of what's called CIT training, which is how to handle the mental ill people. Well, that's essentially deescalation training, right? Don't shoot them before you can get them mental health treatment.

Mandy Marzullo:              Yeah. But in this case, it's almost like his actions created a problem.

Scott Henson:                    Very much.

Mandy Marzullo:              That he didn't go to the front door and that he's going around the back, which scares the homeowner or the person that he's trying to check in on.

Scott Henson:                    So you have two scared people interacting and of the two, he's the one who was trained to shoot immediately if he's scared.

Mandy Marzullo:              Yeah. So sometimes law enforcement unwittingly can create a problem. And that seems to me what happened here. Next up, the ACLU issued a state by state blueprint for reducing incarceration levels by 50% by 2025. But Scott, although you worked for the ACLU in a past life, you didn't find their recommendations convincing. Where did they fall short?

Scott Henson:                    I really thought that this was a facile and almost worthless analysis. I didn't look at all the other States reports, I only looked at Texas. But the Texas report really didn't tell anyone here anything that we can use to actually help address the mass incarceration problem. So some of their recommendations were reduced time served for drug distribution by 50%. Institute alternatives to end admissions for drug possession. Reduce average time served by 50% for assault. Reduce time served by 40% for robbery. Reduce time served by 40% for burglary. Well, yes.

Mandy Marzullo:              You don't find that insightful?

Scott Henson:                    Yes. I guess if we reduce everyone's time served then it would ultimately cause fewer people to be in prison. That's absolutely true. But they give us no insight whatsoever into how to do that. And in fact, the reality is we already have so many people in prison with very long sentences that if going forward you reduced all the sentences, we would still have mass incarceration for a very long time. The Sentencing Project out of DC has made a proposal that no prison sentence should be longer than 20 years, and I essentially agree with that in most cases.

                                                But, my criticism was that even if you implemented that tomorrow, if we reduced every sentence on the books to 20 years, because we have so many people with sentences of 60 years, 80 years, 99 years, life, life without parole, that you wouldn't start to see a really big decline until 20 years from now. And so the same thing goes here when you say, well let's reduce these sentences. Well, that doesn't address all the people already in prison who have super long sentences. The only way to actually do that is to increase parole rates, which is really absent in this analysis.

Mandy Marzullo:              Yeah. There's no focus, no discussion of process and procedure at all. Which is surprising because those are the ways to affect like a large proportion of the cases that are out there in a way that isn't discussing conduct because that's what makes a sentencing issue so hard.

Scott Henson:                    Right. Well, and they give us just no specifics at all. So when they say, we should eliminate prison admissions for drug sentences, for example. Well, there is a way to do that. And that would be to reduce the drug possession penalties to a class A misdemeanor. I suppose you could just legalize everything. But assuming that's not on the table, you could reduce penalties to a class A misdemeanor so that they're sentenced to County jail and not to prison. But, they don't even get to that level of specificity. It's just look at the category and say, "Fewer people should be in for that. Fewer people should be in for this. Fewer people should be in for robbery." Well, you're not really giving us any recommendation to work from. And I don't think anyone could look at this report in Texas and think, "Now I know how to reduce mass incarceration!"

Mandy Marzullo:              Yeah, it was a missed opportunity. I looked at a few other States and the reports that I saw were essentially the same format as Texas with just different information dropped in. So they just looked at every state and identified the offenses for which the broadest number of people are incarcerated and said, cut that.

Scott Henson:                    Right, right. And in truth, I believe it is absolutely possible to reduce incarceration levels in Texas by 50%. I completely believe that. More than 60% of everyone in a Texas prison today is already parole eligible. They are eligible to be released right now. We have 16% or so of people are in there for drug crimes, most of them for possession. We could reduce that to a class A misdemeanor and knock a big chunk out and also reduce the probation roles significantly as well. So I believe absolutely that there are ways to get to a 50% reduction, but it's not going to be by saying, "We reduce the time served for assault by X amount." There's not even any way to do that within Texas sentencing structures. We don't really have very many mandatory minimums the way other States do. So at a first degree felony, if you commit murder-

Mandy Marzullo:              You're still parole eligible.

Scott Henson:                    … the sentence is five to 99 and the jury just picks a number in between those levels. Well, what is the mechanism then for reducing time served for that? There's no way you can just say, "We're going to take robbery and reduce time served for that." No, the range is so huge.

Mandy Marzullo:              Yeah. That even if you were to ratchet down the range and cut it by 50%, you're probably not even getting to 50% of those cases.

Scott Henson:                    That's right. So it really did not make sense. I found this very simplistic and disappointing and I'm not sure other than just like fulfilling the deliverable on a grant they got or something, what it is they thought they were accomplishing by putting this out.

Scott Henson:                    Rodney Reed is scheduled to be executed on November 20th for a crime he likely did not commit. Unless the US Supreme Court intervenes, only Governor Greg Abbott and the Board of Pardons and Parole can spare his life. Mandy and I sat down with Reid's attorneys, Bryce Benjet of the Innocence Project. Rodney Reed is scheduled to be executed on November 20th for a crime he likely did not commit. Unless the US Supreme Court intervenes, only Governor Greg Abbott and the Board of Pardons and Parole can spare his life. Mandy and I sat down with Reid's attorneys, Bryce Benjet of the Innocence Project and Quinncy McNeal, who works at a civil litigation firm, Mayer Brown in Houston. Here's how they described the evidence against Reed in light of corrected forensic testimony and new witnesses corroborating Reeds version of events. These comments are excerpted from a longer conversation. I'll publish our full interview separately on Grits in just a few days.

Scott Henson:                    Rodney Reed is on death row for the murder of Stacey Stites, a woman with whom he has always maintained he was having an affair. Tell us why you think her fiancé Jimmy Fennell is the real perpetrator, Bryce.

Bryce Benjet:                     Well, after the murder, police quickly focused on Jimmy Fennell, who was the victims fiance as a likely suspect. They investigated him. They brought him in for interrogations. When he testified at the trial, he talked about how these were aggressive interrogations where they yelled at him, tried to get him to confess to the murder. He was subjected to two polygraph examinations in which he was found deceptive on questions about whether he committed the crime. When he was confronted with that, he took the fifth, stopped cooperating with the investigation. After Rodney Reed was put on trial however, he did testify in a manner that implicated Reed. What we've found out about Jimmy Fennell over the years, has confirmed every suspicion that the police had back then.

                                                When we looked into his history, there was complaints about racial discrimination and violence as a police officer, even before the murder. After the murder his, a woman he dated, came forward and said, "Yeah, he was virulently racist." He would object to her even visiting a black hairdresser. When she broke things off with him, he stalked her. And so this was a pattern that we saw. I've been working on this case since 2002, and over the years I've been investigating this. Then I remember several years after I took the case, I hear on the news one day that Fennell's been arrested. And lo and behold, he ends up being convicted after being charged with kidnapping and sexual assault of a young woman who he was dispatched to help. So here we have, 2006, he's alleged to have committed this sexual assault and rape, pleads guilty, ends up serving 10 years in prison for this crime.

                                                And when the Texas DPS investigates him, they found that this was a pattern. There were other corroborated allegations of sexual assault. Other misconduct going back for years. So this is somebody where he's initially suspected of the murder, they drop it because of Reed's DNA. But lo and behold, we find out that this is part of a long standing pattern of misconduct. And that's something we certainly want the courts to investigate. And this is a person that had motive. As part of our investigation, we've revealed, and this was Mr. Reed's defense the entire time, he has always said that he was having a relationship with Stacy Stites. And through the incredible investigative work that Quinncy McNeal has been doing on this case, we found a number of witnesses who have no relationship to the Reed family. No reason to come forward other than that they know the truth that they could say that they knew something about this relationship.

Scott Henson:                    Good for you, Quinncy. Tell us about those new witnesses. Tell us about the new evidence that you've uncovered.

Quinncy McNeal:             Sure Scott, I'm happy to. First of all Scott, thank you and thank you Mandy also for shining a light on this important case. We have heard from witnesses and they have said some things that we find compelling. And I just want to share with you some of those things. We have heard from, for example, within the last three or four weeks, in fact, since the execution date has been established, we've heard from three witnesses and I'll mention. We've heard from more than that, but there are three in particular I want to talk about in this podcast. First of all, we've heard from a former partner of Jimmy Fennell, with the Bastrop County Sheriff's office. A partner with whom he worked and was close to.

                                                That partner has shared with us that in the weeks before Stacey was murdered, Jimmy Fennell told this partner that he thought, that Jimmy Fennell thought that Stacy was sleeping with a black man. And that's to put it charitably because he used the racial epithets, according to the memory of this partner. We think that is chilling. We think those sorts of words provide compelling evidence of motive for Mr. Fennell to have committed this crime. We've also heard from a sheriff’s deputy from a neighboring county. And this sheriff’s deputy talked to us about coming, well, he came forward to say that he witnessed at the funeral of Stacey Stites, Stacey Stites funeral, he witnessed Jimmy Fennell walk to the casket of Stacey Stites and say something along the lines of, “you got what you deserve” staring down at her dead body. Those words we think are compelling and chilling.

                                                We've also heard from a salesperson, an insurance salesperson. All three of these, again, since the execution date has been set, people coming forward. This salesperson tells us that she witnessed Jimmy Fennell threaten Stacey in her presence in November of 1995. To flesh this out a little bit. The sales lady was speaking with Stacey Stites and Jimmy Fennell as well. And she was offering insurance to Stacey Stites, offering to sell insurance to Stacey Stites. And Stacey made a comment along these lines, "I'm pretty young, I don't need any insurance." And Jimmy Fennell then sort of corrected her in a very abrupt way and aggressive way according to this sales lady and said, "You'll need insurance. We will," she says something to the effect of, "If you cheat on me, I will kill you and no one will know that I did it." And so here again, these are witnesses who've come forward with testimony, eyewitness accounts, that we find to be compelling and worthy of the court's attention.

Scott Henson:                    And isn't it the case that a couple of her coworkers, she worked with the HEB there, a couple of her coworkers have also given some corroboration that they were having an affair.

Quinncy McNeal:             Scott. That's exactly right. And I think that's important because these are people who have no association with Reed. These are people who knew Stacey Stites and they have come forward and said that. For example, there are two who worked with her at HEB and these two individuals of HEB have said they were aware of a relationship. Specifically one woman says that Stacey Stites spoke to her in a break room and talked to her. Stacey Stites talked to her about the relationship that she had with a black man named Rodney.

                                                And a second witness, a second HEB employee who knew Stacey Stites has come forward and said that he physically saw Stacey Stites and Rodney Reed together and knew of that. And then we've also heard from a cousin of Stacey Stites, who's come forward and said that he physically saw Stacey Stites and Rodney Reed together. At the trial, what was said was that there wasn't a relationship. And now what we see is compelling evidence that in fact all along Rodney Reed's statements about there being a relationship were true. That's what the evidence shares.

Mandy Marzullo:              And then in addition to the evidence of the affair and motive that Jimmy Fennel may have had, isn't there also new forensic evidence that places him with her at the time of death?

Bryce Benjet:                     Yeah, so the state's case in this matter rested on two pillars. They had the accusation that Stacey Stites and Rodney Reed were strangers and that there was no relationship. And therefore also in light of some, what we now know as faulty forensic evidence, that the presence of Rodney Reed's DNA on vaginal swabs taken from the body was from a sexual assault that took place contemporaneous with the murder. And that's what the jury heard. And so where Rodney Reed is saying at the trial that I was having this affair with Stacey Stites, the jury that heard the state's forensic evidence couldn't credit that because they were told without contradiction, that he sexually assaulted Stacey Stites contemporaneous with the murder. Now that we've investigated this case for years, we know that none of that is true.

                                                We've talked to Roberto Bayardo, who was the Travis County medical examiner. Conducted the autopsy, testified at trial. He has recanted his opinions. He now says the fact that he just saw a small amount of semen on the sample showed that this was consensual sex that took place around a day before the murder. We've presented this to the agencies that employed the experts that testified for the state, the two others, and they have recanted the same type of testimony that said that the semen that they found was fresh. Now they say, "Well, that actually could be around for up to three days." And so everything that the jury heard to convict has been recanted.

                                                And in replacement for that, we have actually presented this case to three of the most qualified experienced forensic pathologists in the country, Michael Baden, Werner Spitz, LeRoy Riddick. And each of these three forensic pathologists have said that it is impossible for Rodney Reed to have murdered Stacey in the two hour window that the state presented to the jury. And in fact, that the time of death was consistent with a time before midnight when Jimmy Fennell testified at the trial he was at home alone with Stacey. And this is very important because the condition of the body actually shows that she was dead for a period of four to six hours before she was even left at the scene where she was found. Which makes it impossible for her to have been on her way to work and then been abducted and murdered.

Mandy Marzullo:              And wasn't she found in Fennell's pickup truck, is that correct?

Bryce Benjet:                     Well, she was transported in Fennell's pickup truck and we know she was dead in the truck because there's some decompositional fluid found there. Which again takes hours to develop. So the state's theory was that she leaves her house at around 3:00 AM in the morning. Her truck is found with this material at 5:23 AM. So that's a two hour window roughly. And again, where it takes more time than that for this purge to develop in the truck. We know she was dead long before the state alleged.

Mandy Marzullo:              Now it's time for a segment we call Suspicious Mysteries in which we analyze unexplained criminal justice trends. Last week, the Wall Street Journal ran a story describing a decline in misdemeanor arrests and prosecutions over the last decade, a trend for which experts can cite no solid explanation. In Texas, all types of misdemeanors declined by one third over the last 10 years, while class C misdemeanor traffic tickets declined by 40% and non-traffic class C declined by 48%. All during a period when the state population boomed. So Scott, what do you think is going on here?

Scott Henson:                    I find this fascinating because not only do we not understand why misdemeanor arrests declined over the last decade, misdemeanor crime by all measures has been declining for much longer than that. And we don't know why arrests continued to go up for 20 years before they began going down. To add onto that, to my knowledge, there's around 22 different significant theories of why crime is declining in the first place and no one really even understands what the causes of crime decline are.

                                                So we don't know why crime has declined for the last 30 years. We don't know why arrests continued to go up, even though crime is going down. And we don't know why, now, based in this Wall Street Journal story, we don't know why arrests have started to go down finally after crime was on its way down for so long. So this story really drove home to me how little anyone fundamentally understands about crime trends in America. I feel like we're flying blind in so many ways.

                                                And some of the things that the Wall Street Journal had suggested as reasons for this don't really necessarily apply to Texas. So they had suggested that reduced marijuana penalties and decriminalization or legalization in some States had caused this. Well in Texas we've not reduced marijuana penalties and marijuana arrests are one of the areas that's continued to increase over this decade. And so it's definitely not that. They had suggested that a reduction in stop and frisk practices might be one of the reasons. But there again, that's something that is much more common on the East Coast. Here in Texas, policing is much more automobile based. It's cops driving around in cars and from 911 call to the next. We don't have people walking a beat and just stopping people on the street randomly in the way you might in New York city. So that doesn't seem to apply quite as much.

Mandy Marzullo:              That was one of the aspects of the article that I found really interesting because they did at one point cite some sort of official from the New York PD and he likened broken windows theory to cancer treatment. Where he basically said, "We've had like this lethal dose that has allowed us to experiment with lesser doses, fewer arrests and other contexts now that we got rid of the crime essentially." I'm a broken windows theory skeptic at a minimum, but I do think that law enforcement practices have probably changed not just in New York, but around the country as people are aware that there were problems with CompStat and the incentives it created.

Scott Henson:                    Right. I asked a couple of national experts who I respect what their thoughts were. One of them had said, ironically, and this again shows we don't really know how to interpret any of this. Megan Stevenson, who's a law professor and an economist at George Mason University, suggested that one of the reasons for the misdemeanor crime decline is exactly what you said. Many, many more people are now broken windows skeptics and broken windows policing has simply gone out of vogue. It's not something that departments are emphasizing as much. Well, that's all these low level misdemeanor arrests. So while the guy in the Wall Street Journal had suggested broken windows worked, and so now we can experiment with a fewer arrests. Her thought was, "Well, we finally realized broken windows didn't work and just stop doing something that wasn't working." And so I thought that that's interesting too, that you can interpret this in both directions on broken windows and maybe it has nothing to do with that all.

Mandy Marzullo:              But, crime continue either way, they stopped doing it for whatever reason. And crime hasn't spiked. It's continued to decline.

Scott Henson:                    Professor Stevenson had a couple of other interesting thoughts. One was that increased surveillance technology has reduced the willingness to shoplift or do graffiti. Another one I've heard is that now so many consumer products are cheap and not really like that valuable anymore, that they're simply not worth stealing. And because you replace things now when they're broken or whatever and used items don't have that much resale value. Another interesting suggestion that Professor Stevenson gave was that gentrifying cities means poor people no longer live where rich people work.

                                                I thought that was fascinating and really rang true to me from our experience here in Austin where we've had so much gentrification in the central city, and then we saw decriminalization of sitting and lying and homelessness here in Austin and then all of a sudden homeless people, extremely poor people, were showing up in the view of rich people. And even though all the crime data says that there's been at most a tiny, tiny crime increase since that happened, the weeping and gnashing of teeth among sort of the middle and upper class folks here in Austin is totally out of proportion to anything that any of the data says is going on. And so the idea that wealthier folks overreact being in the presence of poor people really seems to me somewhat corroborated by what we've seen here in Austin. The numbers here in Texas on misdemeanor declines are really, really dramatic just to talk about a few of them.

                                                Even in like traffic tickets, class C misdemeanor traffic tickets, which are criminal offenses here in Texas, they have declined from 9.1 million tickets given in 2005 to 5.6 million in 2018. And this is a period when the population in Texas has exploded. There's a lot more people here, a lot more drivers here than there were a decade ago, but far, far fewer traffic tickets. Non-Traffic class C misdemeanors were at 2.1 million back in 2003 and have declined all the way to 1.1 million in 2018. So huge, huge declines. We've seen big declines in everything from state traffic laws, local non-traffic misdemeanors, non-traffic misdemeanors in the penal code. All of these have declined significantly. Another one that probably plays some role in our numbers is juvenile crime. Back in 2012 there were 314,000 juvenile cases filed in Texas, in 2018 had dropped all the way to 115,000. So almost a two thirds drop. These are big, big numbers.

Mandy Marzullo:              And that might be school to prison pipelines. Some changes to the truancy laws-

Scott Henson:                    That's right, Texas has made a lot of reforms after the Texas Youth Commission scandal where they said, "Okay, these youth prisons are too dangerous to be sending people to anymore. Let's really scale back the juvenile justice system." So that's in reaction to some policy changes. On the others, the adult misdemeanors, we can't point to the same type of big league policy changes that would explain it. I find all this completely fascinating and it's positive. It's a very good thing that there's less crime. There's less people being arrested, fewer people going to jail and prison.

Mandy Marzullo:              Fewer crime victims.

Scott Henson:                    Fewer crime victims. Exactly. But I find it fascinating that for all the smart people who look at criminal justice policy, none of us really have a good idea what the hell is going on? Now it's time for our rapid fire segment we call the last hurrah. Mandy, are you ready?

Mandy Marzullo:              I'm chomping on the bit. Let's do this.

Scott Henson:                    The State Commission on Judicial Conduct in August reprimanded 11 Harris County judges for wrongly jailing indigent defendants because they couldn't afford bail. But last month, the commission retracted those public reprimands without giving a reason prompting the Houston Chronicle editorial board to say they should be quote embarrassed by the wrist slap given local judges. Then the paper went onto accuse them of stonewalling legislators when they tried to exercise oversight of the agency. Mandy, what changes need to happen for the commission to hold judges accountable for misconduct?

Mandy Marzullo:              Well, I think part of the problem is the implementation of the issue. Like the fact that they issued a reprimand and then went back on it, it shows that there's the power's there it's not being applied properly. I think the other side to this is that reprimand shouldn't be secret. How can the public make a responsible or informed decision in a judicial election if they aren't aware of the candidates misconduct? Like that seems to go to the heart of their job. Next up, Texas crime labs are suffering massive backlogs according to a report from the McAllen Monitor. Drug cases in the Rio Grande Valley take more than two years to process and DNA analysis takes on average more than 1300 days or more than three and a half years. Scott, what are the implications for such long delays?

Scott Henson:                    Really this is one of the biggest problems in the justice system in Texas and it gets almost no attention. When you think about these drug cases, we have examples from Harris County and elsewhere where hundreds and hundreds of people are falsely accused based on the field test. And when it takes more than two years for the actual test to come back, anyone who can't afford an attorney and can't afford to pay for their own testing, is just going to have to either sit in jail or take a plea deal. So it's causing many, many false convictions. And then on the DNA analysis, three and a half years to come back and these were almost all violent offenses where you're seeking DNA evidence means that the victim simply aren't getting justice. You have speedy trial problems.

Mandy Marzullo:              Which could be a public safety issue.

Scott Henson:                    Which could be, that's right. Because people may ended up not being held accountable for violent offenses because it's taken this long. It's a massive problem and it isn't just in the McAllen area, they were looking at their region, but this is a problem everywhere in the state and legislature desperately needs to address this either by putting a lot more money into crime labs or scaling back the types of cases that we're prosecuting. I mean, the drug cases maybe just don't need to be as big a priority if we can't process [inaudible 00:39:32]. Okay, last one. A jury acquitted a prison guard in a murder trial in Brazoria County after the guard slammed a handcuffed inmate to the ground and killed him. The same guard had been disciplined for the same thing several months before involving the same inmate. Mandy, what message to this verdict?

Mandy Marzullo:              Prison guards can attack inmates with impunity. The video on this case is pretty extraordinary. Like the inmate was down and on his knees and handcuff, he was fully under the guard's control.

Scott Henson:                    With several guards standing around him. It's all fine apparently.

Mandy Marzullo:              Apparently it's sanctioned.

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

Mandy 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 SoundCloud or listen to it on my blog, Grits for Breakfast. We'll be back next month with more and hopefully better news. Until then, keep fighting for criminal justice reform, it's the only way it's going to happen.

Mandy Marzullo:              A special thanks to Speaker Moody and chairwoman Thompson for attending TDF's luncheon. It was a great event and it was my privilege, or TDS privilege to honor them.