Report cast dismal light on indigent defense in Amarillo

On the November episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed a new, commissioned report by the Sixth Amendment Center (6AC) analyzing indigent defense systems in Potter and Armstrong Counties. Potter County contains most of Amarillo, while Armstrong is a nearby, very rural county with very few lawyers, an 8-bed jail, and no municipal police departments. I've excerpted our segment here, and below pulled some highlights from the (somewhat overwritten) 200+ page report.


Here are a few key items from the report, which frankly paints an awfully grim picture:

Bailing out the boat with a thimble
In Texas, decisions directly affecting whether indigent defendants receive counsel are made at the county level. The Texas Indigent Defense Commission cannot and does not enforce minimum indigent-defense standards in Texas, said the executive summary:

The state legislature enacted the Texas Fair Defense Act in 2002, creating what is today the Texas Indigent Defense Commission (TIDC). TIDC disseminates limited state funding through grants to counties, but TIDC does not provide direct representation to indigent defendants and it does not have the power to force counties or judges to comply with any law, rule, standard, or policy relating to the provision of indigent defense services. Even if TIDC did have the authority to enforce the State of Texas’ Sixth and Fourteenth Amendment right to counsel obligations, TIDC has extremely limited ability to do so. TIDC operates with just 11 full-time equivalent employees who are responsible for ensuring that each and every person facing the potential loss of liberty has an effective lawyer at every critical stage of a criminal prosecution in each of Texas’ well over 900 trial courts spread across 254 counties. (Emphasis added.)

To be fair, TIDC understands this, it's just a difficult dynamic to overcome. Their main leverage for change comes from the threat of withholding grant money. That's not a lot compared to what counties spend, so there's little incentive to change practices. That their biggest-impact victories have involved transparency, not overt regulation. But Grits finds many state leaders don't fully comprehend the extent to which the agency is bailing out the boat with a thimble.

Potter County still reeling from ransomware attack 
In April, Potter County was attacked by a malicious virus and refused to pay its creators ransom, freezing up all their computers and taking them months to develop paper-based systems while they recoup. As of this writing, "it is unclear whether the courts’ lost records can ever be recovered. The district courts had not been storing backups of their data, and they also had not been paying their software vendor to back-up their files." This is a big deal that's not been widely reported outside of Amarillo.

Consequences of a misdemeanor conviction
"More than 74% of all misdemeanor defendants in Potter County are estimated to be pro se (not having a lawyer," said the 6AC. Here's how the report described the consequences of misdemeanor pretrial incarceration.

Although a misdemeanor conviction carries less incarceration time than a felony, the collateral consequences can be just as severe. Going to jail for even a few days may result in a person losing professional licenses, being excluded from public housing and student loan eligibility, or even being deported. A misdemeanor conviction and jail term may contribute to the break-up of the family, the loss of a job, or other consequences that may increase the need for both government-sponsored social services and future court hearings (e.g., matters involving parental rights) at taxpayers’ expense.

Some attorneys carry WAY too many cases
The report cited two attorneys in particular who carry caseloads far in excess of TIDC guidelines for how many criminal cases attorneys should handle:

• One attorney had 231 felony cases paid in FY2018, or a felony caseload nearing twice that of the 128 felony cases allowed by the summarized Texas guidelines. But this same attorney was also paid in 18 juvenile cases and 52 misdemeanors. The lawyer reported devoting 91% of his total practice time across all counties to indigent adult criminal defense appointments and 2% to indigent juvenile defense appointments. Thus, this attorney carried an indigent defense workload at 230% of the Texas caseload guidelines after adjusting for his reported practice time.
• A different attorney was paid for a caseload at 152% of the Texas caseload guidelines, but he spent only 18% of his time on that caseload. After accounting for the limited time available to his indigent clients, this attorney’s adjusted workload was 844% of the Texas caseload guidelines. Stated differently, this lawyer was carrying an indigent defense caseload in FY2018 that required more than eight full time attorneys under the Texas caseload guidelines.

Attorneys don't visit their clients in jail
Ever, apparently:

Attorneys appointed in both Armstrong and Potter counties widely acknowledge – and there is near universal agreement by judges, prosecutors, jailers, and community leaders – that they do not visit their in-custody clients in jail. Likewise, many attorneys do not meet with out of custody clients either. 

Instead, most appointed attorneys meet with the defendants they are appointed to represent, both in-custody and out of custody, only at the courthouse before or after scheduled court proceedings.   

Almost nobody gets money for investigators
Not surprising, but worth noting:

According to judges in Armstrong and Potter counties, court appointed lawyers “never” use investigators in misdemeanor cases and rarely do so in felony cases. One lawyer who has been on the court appointed counsel list for 10 years says he has used an investigator in only four cases. A different lawyer says she has “never” used an investigator in her 10 years on the Potter County list. As the table on page 139 indicates, in five years Armstrong County appointed attorneys have only used $350 worth of investigative services and $0 expert assistance in the defense of their indigent clients. Over five years, appointed attorneys have only used $429 in investigative services and $1,400 in expert assistance in misdemeanor cases in Potter County.

No oversight for attorney quality or caseloads
By design, because the judges say it would be a conflict of interest for them to "supervise" the attorneys they appoint:

there is no oversight of the attorneys appointed to represent indigent defendants in the two counties. The qualifications, training, and supervision required for appointed private attorneys in Armstrong County and Potter County are inadequate to ensure effective assistance of counsel to indigent defendants, and a significant number of those attorneys accept more appointed cases across Texas’ trial courts than national standards and the Texas Guidelines for Indigent Defense Caseloads say is acceptable. 

Nobody paying attention at critical junctures in the system
For example, "the judges of Armstrong County and Potter County do not keep track of defendants between magistration and institution of prosecution." So people get stranded in jail waiting for something to happen.

Judges tolerate ineffective assistance
Grits was surprised, but also not surprised, if you know what I mean, to see the frank declaration that some "appointed private attorneys [in Potter and Armstrong Counties] do not provide effective assistance of counsel."

Flat fee gives lawyers incentive to work less on cases
This is a problem everywhere flat fees are used, which is nearly every Texas county, and is one of the best arguments for a public-defender office from both an incentives and efficiency perspective:

Constructive denial of counsel in Armstrong and Potter counties is rooted in insufficient resources and low attorney compensation, as explained in chapter 8 (pages 144-154). Court-appointed attorneys in Armstrong and Potter counties are paid a single flat fee, in most cases, without regard to how much or how little time the attorney must devote to that case (e.g., $400-$500 for a misdemeanor or state jail felony). Although the indigent defense plan in Armstrong and Potter counties calls for “reasonable” attorney compensation as determined by the “time and effort expended” by the attorney, payment of a presumptive flat fee per case does just the opposite. Because attorneys are presumptively paid exactly the same amount no matter how few or how many hours they devote to a defendant’s case, it is in the attorney’s own financial interest to spend as little time as possible on each individual defendant’s case.

Stop intimidating defendants into declining counsel
Apparently, uniformed deputies or bailiffs are the ones who inform defendants of their right to request a lawyer if they are indigent, but those folks actively try to dissuade people from doing so. As a result, the 6AC recommended the counties:

prohibit all communication between prosecutors & prosecution staff and unrepresented defendants, unless and until defendants have been informed of their right to appointed counsel by a judicial officer, a judge has conducted the legally required colloquy, and a defendant has executed a written waiver of the right to counsel. Law enforcement personnel should be prohibited from giving defendants advice about their right to counsel choices.

Describing the arraignment process to unrepresented defendants, sheriff's deputies tell them they're going to "plea court." At arraignment:

all unrepresented misdemeanor defendants either plead guilty at arraignment, secure by hiring or appointment an attorney to represent them, or return unrepresented to court in two weeks for docket call. At that docket call, the exact same process that occurs at arraignment is repeated; again, giving unrepresented defendants the choice of negotiating a guilty plea with the prosecutor, securing by hiring or appointment an attorney to represent them, or returning unrepresented to court in another four weeks for trial.

Indeed, sometimes poor people requesting counsel are told to ask the prosecutor! "Potter County jail personnel advise felony defendants to contact the District Attorney’s office if they want to request appointed counsel after bonding out of jail, and otherwise the jail personnel say that bondsmen will tell a defendant how to request appointed counsel."

Counties should stop illegally billing indigent defendants for lawyers
The report declared this practice was instituted in Potter County after the 2008 financial crisis. On the podcast, Mandy said this is happening all over the state:

Indigent defendants are routinely required to repay Armstrong County and Potter County for the cost of the Sixth Amendment representation provided to them, despite having been determined by a court to be indigent and without any hearing (or evidence) to show that they have the financial ability to pay these costs, in violation of state law.

Remarkably, "Some appointed attorneys are unaware that every indigent defendant is entitled to an evidentiary hearing on ability to pay before the court can order the defendant to repay the county for the costs of indigent defense services." Regardless of whether the lawyers know this or not, "No such hearing is ever conducted."

The 6AC's strongest recommendation was that local judges "cease" doing that because it's illegal.

Other recommendations a bit lame
The first recommendation was to call on the legislature to create a study committee. (Yawn. Been there, done that, still have the t-shirt.) The second was only slightly less useless:

The trial court judges responsible under Texas law for providing and overseeing the Sixth Amendment right to counsel of indigent defendants in Armstrong County and Potter County should establish a non-partisan independent commission to oversee all aspects of indigent defense services, in order to eliminate the dangers of possible undue interference by the judicial and political branches of county government.

Those two suggestions, plus the bits about not intimidating defendants or billing indigent defendants for their lawyers, were the only formal recommendations in the report.

MORE: From the Texas Observer.

On the dangers of dick-ish drug enforcement, racist cop rose in Austin PD ranks, indigent defense denied in Amarillo, and other stories

Just in time for the drive to Grandma's house, here's the November 2019 episode* of Just Liberty's Reasonably Suspicious podcast covering Texas criminal justice politics and policy, co-hosted with Amanda Marzullo of the Texas Defender Service.


In this month's episode:

Introductory tomfoolery

• ¡Poncho!

Top Stories

• Houston PD narcotics division a black hole of bad practices (2:32)
• Federal judge defines limits of DNA mixture software (8:54)

Fill in the Blank

• Victoria County Jail death from drug withdrawal (16:25)
• Racist Austin PD assistant chief outed, what's next? (21:01)
• Indigent defense shortchanged in Amarillo (24:50)

The Last Hurrah (29:30)

• Denouement of Harris County bail litigation
• Why Greg Abbott owns a homeless camp
• Rodney Reed execution stayed

*N.b. It really is the November episode, despite my embarrassing screw up in the intro to say it's June. 

Find a transcript of this episode below the jump.

Harris bail settlement finalized, steep cost of criminal fines, the geography of incarceration, and other stories

Here are a few items that merit Grits readers attention this morning:

Harris County bail settlement finalized
Federal District Judge Lee Rosenthal ignored criticisms from Harris County DA Kim Ogg and others, finally approving settlement language in bail-reform litigation there. See the consent decree and the settlement agreement. Congratulations to all involved!

The Geography of Incarceration
Which Texas zip codes generate the most TDCJ prisoners? A new analysis from a group called Commit breaks down the numbers.

Houston drug cops arrested over botched raid
The FBI has arrested two Houston PD narcotics officers in connection to the botched Harding St. drug raid this spring. The civilian who made the 911 call has also been arrested for false reporting. See a Twitter account of Gerald Goines' initial appearance in federal court. MORE: The Chron has added more coverage of the raid - including officers' history of misconduct and a deep dive into arrests by the HPD narcotics unit over the last decade - and put it all on a single landing page.

Blakinger: 'I didn't believe in God but I prayed in prison'
Read this.

'The Steep Costs of Criminal Justice Fines and Fees'
A new report on the topic from the Brennan Center includes Texas case studies.

¡Poncho! Livin' too large

It would be easy to take shots at Texas state Rep. Poncho Nevarez, a front runner among Texas Monthly's list of Worst Legislators of 2019, after he dropped four packets of cocaine in an envelope with his name printed on it while leaving the Austin airport and was charged with a 3rd degree felony. So let's do that now.

First, who transports cocaine in their personalized stationary? I suppose it's a tad more secure than lugging it through the airport in a satchel stamped with, "THIS IS WHERE I KEEP MY COCAINE." One imagines the Homeland Security and Public Safety Committee chairman getting to his final destination and consuming the product using a monogrammed crack pipe.

When captured on video dropping the cocaine, Nevarez was getting into a black SUV owned by his chief of staff in a special section of the airport used by state officials, having flown into Austin on a private plane owned by his solo-practitioner law firm. When you think about it, that's awfully convenient for government officials who want to smuggle drugs or anything else. No long line through a phalanx of drug dogs sniffing your stuff, no X-ray machine or questions from nosy TSA agents who might open your bags. Must be nice.

Still, an envelope with a Texas legislator's name on it isn't a diplomatic pouch. So when airport staff found the envelope, they opened it, found Poncho's blow, and we're off to the races.

In a way, the chairman is still getting the benefit of the doubt. Normally, cops might assume the guy in the fancy suit and flashy watch who brings drugs from the border in user-level packaging via private aircraft through an insecure part of the airport before being picked up by a driver in a black SUV might be a drug dealer. Maybe there was more cocaine in other envelopes, they might have surmised, and a flurry of search warrants, ancillary investigations, and even asset-forfeiture claims might ensue.

In Austin, though, everyone seems comfortable the dope was all for him. Two grams sounds like just a travel-size amount of nose candy for a guy living that large.

Nevarez said that, in a "weird" way, he was "grateful" he was caught. I feel the same.

As a policy matter, Grits believes Texas should reduce the penalty for possession of that quantity of cocaine to a misdemeanor charge and addicts should receive treatment, not incarceration. But I've little sympathy for a lawmaker who never lifted a finger to help with that agenda, attempts to thwart #cjreform bills that come before him, then is outed as a hypocrite.

Plus, Nevarez operated the Homeland Security committee with the demeanor of a snide frat boy. Texas Monthly's assessment  of his performance was that he "sorely needed less testosterone and more humility."

Grits wishes him no special ill, but neither does he deserve special treatment. And I'm relieved he won't return to the capitol in 2021.

Poncho Nevarez is the kind of Democrat who would make bipartisan #cjreform efforts necessary even if the whole Legislature turned blue. Maybe Eagle Pass Dems can find a #cjreform proponent to replace him.

Kardashian-West star power attracts Texas Rs, the scourge of driver-license suspensions, 2 false conviction stories, and the future of corrections

Here are a few browser-clearing odds and ends that may interest Grits readers:

Kardashian-West star-power attracts Texas Rs

Caption this photo in the comments!
Via ABC-13 Houston

Even understanding that, after 2016, politics and reality television have almost completely merged, the marvelous development of Texas Governor Greg Abbott praising Kanye West as a visionary, while Lt. Gov Dan Patrick sits with Kim Kardashian on the front row at Joel Osteen's church to hear her husband perform, simply blows the mind.

Kardashian was in Texas to visit Rodney Reed on Death Row, while her husband performed at the Harris County Jail in addition to Osteen's megachurch. Just ... Wow!

On the scourge of excessive driver-license suspensions
Check out an excellent article in the Victoria Advocate by Kali Venable documenting the hardships created by unwarranted driver-license revocations, a situation helped but not resolved by the abolition of the Driver Responsibility surcharge.

New exoneration based on faulty eyewitness ID
Now that most of the old pre-DNA cases are gone, innocence cases based on faulty eyewitness identifications are often more difficult to prove. Not this one! Here's an eyewitness ID case out of Houston in which the defendant Adrienne August was exonerated because he was being pulled over at a traffic stop at the moment prosecutors had alleged he was committing burglary. What amazing luck! If he'd been home with his mama, they'd never have accepted that alibi. But it's hard to argue this one. August was convicted in 2017 and serving a 20-year sentence when he was exonerated.

Common thread of false convictions in Williamson County: Prosecutors failed to disclose exculpatory evidence
At the Austin Statesman, Tony Plohetski has the story of a false conviction in which prosecutors at the Williamson County District Attorneys office, including Paul Womack, who went on to serve on the Texas Court of Criminal Appeals, allegedly failed to disclose to the defense that the victim had recanted in a child molestation case. This is the same county in which Michael Morton was convicted. Perhaps no county in Texas would benefit more from creating an aggressive conviction integrity unity aimed at reviewing cases from the Ken-Anderson and John-Bradley eras.

Opposition to #cjreform a 'sad last gasp'?
The New York Times described opposition to #cjreform by police unions and prosecutors in New York as a "sad last gasp." In Texas, those special interests still have more wind, but there's little doubt the tide of public opinion is turning against tuff-on-crime messaging, IMO as much or more here as in New York.

'Improving parole release in America'
Just printed out this short article on parole to add to the reading pile.

The future of corrections
How did I not know that, in the Star Trek universe, New Zealand had been transformed into a prison colony?

A 10,000 year sentence? Austin PD racism in 'Plain View', the case for reducing drug penalties and eliminating cash bail, and other stories

Grits has been busier than a one-legged man at an ass kicking contest. So while I play catch up, here are several items which merit readers' attention, some of which I may expand upon going forward:

Racism at highest levels of Austin PD in Plain View
Austin PD assistant chief Justin Newsom was revealed to have sent racist text messages at work, but was allowed to retire with full benefits before disciplinary proceedings could be commenced. In response, local advocates called for the city to implement an institutional inquiry similar to, but more expansive than, the Plain View Project. That academic initiative examined police officers social-media posts for racist content. Advocates have requested that the Austin inquiry also include searches of departmental emails, text messages over department-issued phones, and any instant-messaging systems used internally by officers at APD. Let's find out how deep this rabbit hole goes.

How do you get a 10,000 year sentence in Texas?
Eugene Spencer, Jr. has the longest recorded sentence of any TDCJ inmate: at least 1,000 years, and press reports at the time of his sentencing said the real number is 10,000 years. I did a brief Twitter thread on his case. A black man convicted of killing a San Antonio cop during a gas-station robbery, the decisive testimony came from an accomplice and it was later proven a jailhouse informant lied on him at trial (courts agreed the guy lied but called it "harmless error"). Today, Mr. Spencer is 76, listed as 5'5" tall, 119 lbs, having spent 47 years of his life behind bars. As attorney Scott Medlock pointed out, he will first become eligible for parole in the 25th century, after the events in Star Trek: The Next Generation.  (UPDATE: See this comment for Spencer's current parole status.) Two questions arise: 1) as mentioned in the final tweet in the string, can anyone explain how it's possible under Texas' sentencing structure to give someone a 10,000 year sentence? And 2) does anyone think Texans would be less safe at this point if the septuagenarian was released?

Amarillo defendants pressured to forego counsel
The Sixth Amendment Center has issued a massive 200+ page study of indigent defense practices in Potter and Armstrong Counties. According to the group, "More than 74% of all misdemeanor defendants in Potter County, Texas (Amarillo) face the possibility of jail time without the aid of a lawyer, due to sheriff’s deputies, county prosecutors, and trial court judges exerting direct, overt pressure on indigent defendants to forego exercising their constitutional right to counsel." The Texas Fair Defense Project has a twitter-thread pulling more details from this extensive document.

Liar, liar, pants on fire: But who?
Harris County DA Kim Ogg and a fired ADA are accusing each other of lying to the court in a flurry of he-said-she-said allegations.

Moore responds to sex-assault oppo hits
Travis County DA Margaret Moore published a full-page ad in the Austin Chronicle responding to allegations about how her office handles sexual assault cases. Compare her characterizations to those in a lawsuit against her office, allegations by Austin firefighters, as well as coverage in the Statesman, the New York Times, and KERA-TV, for example, and make your own judgment.

'Reduce drug sentences to lower the prison population'
I've been saying this for years, but it's amazing to see the sentiment expressed by the Houston Chronicle editorial board. The editorial writers were inspired by Oklahoma's so-far-successful move to change low-level drug possession from a felony to a misdemeanor:

Many of the same Oklahomans whose votes ushered President Trump to a landslide in the Sooner State three years ago also approved the sentencing changes through a referendum in that same election. 

The state’s legislators voted earlier this year to make the reforms retroactive, which led to the Oklahoma Pardons and Parole Board’s unanimous vote this month to commute the sentences and release more than 450 nonviolent offenders serving time for crimes no longer considered felonies. 

If Oklahoma can do that, so can Texas.

What happens when states eliminate cash bail?
New Jersey's experiment eliminating cash bail statewide appears to be going well.

Firefighters play rough!, blame-game politics, why you shouldn't carry cocaine in something with your name printed on it, and other stories

Lots going on this week. Let's hit some high (and low) points:

Firefighters ruthlessly attack Travis County DA
The Austin firefighters union put out a set of attack videos on a dedicated website attacking District Attorney Margaret Moore regarding her record on sexual assault cases. Rough stuff. See Austin Chronicle coverage and related Grits commentary here.

It's always somebody else's fault
In Houston, DA Kim Ogg blamed local judges for an increase in case dismissals. Like her counterpart in Austin, Ogg seems angry at everybody these days.

You'd think the guy who carries cocaine in the airport in an envelope with his name on it would have favored limits on roadside stops and searches
Democratic Texas state Rep. Poncho Nevarez - best known to readers of this blog for working to oppose Sandra-Bland legislation this year in the House - accidentally dropped an envelope with his name printed on it containing four small baggies of cocaine in the airport in Austin while on his way to board a private plane owned by his law firm. He has admitted the allegations were true and announced he won't run for reelection, so he can focus on his health.

Snitch-by-mail
Someone sent an envelope to the Houston PD that included 1) powder cocaine, and 2) a list of alleged cocaine dealers, reported the Houston Chronicle.

'The People's Justice Guarantee'
Newly filed federal legislation would provide states incentives to decarcerate.

Harshest punishments a driver of racial disparity
Not shocking, but new research finds scaling back the harshest punishments would reduce racial disparities in the justice system.

First impressions from Travis County DA debate

Until seeing the candidates debate at a Circle-C Democrats' forum the other night, Grits had wondered whether a reform candidate could really beat incumbent Travis County DA Margaret Moore in the upcoming Democratic primary. But now I can see the path.

The missus attended a second forum for District and County Attorney candidates, hosted by South Austin Democrats, the following night and came away with similar impressions.

I didn't take notes and wasn't there to formally cover the event, but here are my current thoughts on this local race, in no particular order.

1. Mad Margaret: Margaret Moore was all smiles working the room before the forum, but on the panel with the other candidates, she appeared sour and unhappy. The white-haired party volunteer sitting next to me leaned over at one point and giggled, "Margaret is mad."

2. Reform vs. Experience: Of the three candidates, Jose Garza comes most connected to the national #cjreform movement represented by DAs like Larry Krasner in Philly or Chesa Boudin in San Francisco (who beat an establishment-backed Dem over the weekend). But Garza's not as deeply experienced in the local justice system as either of those two. I like Jose, even though both he and Martinson would face steep learning curves on the job. OTOH, that may not be a bad thing, to the extent such "experience" leads candidates to naysay change, as Moore has largely done. And both appear prepared to surround themselves with qualified lieutenants if they win the job.

3. Martinson's Wheelhouse: To the extent the race centers around how the DA's office handles sexual assault cases - and if the firefighters' association has anything to say about it, it certainly will - it benefits Erin Martinson, who for 12 years ran the protective-order division at the Travis County Attorney's Office, more than it does Garza. Martinson did her best when she challenged Moore directly on these questions. She did a great job of threading the needle between improving responsiveness to victims and reducing mass incarceration, using examples from restorative-justice philosophy and practice and her own experience working directly with domestic-violence victims. This background gave her a lot of gravitas speaking to these questions.

4. Some backstory about Moore and reformers: Last year, Margaret Moore and County Attorney David Escamilla approached local #cjreform advocates seeking support to merge the District and County Attorneys offices. Advocates responded with a menu of reforms we'd like to see them enact. Both refused to seriously discuss them, insisting that only insiders understood what was really needed to change the system. (This theme has continued: "Insiders know the system," Moore told the Statesman the other day, "The general public doesn’t understand our system.") Recently Moore characterized that menu of reform ideas as "demands," but in reality they were merely a counterproposal: If she wanted support to merge the DA and CA offices under her solitary command, we sought more reform-minded changes in return. She declined, and her merger failed. It's not like anyone then began protesting on her doorstep. But everyone certainly noticed the choices she made and the priorities they evinced. In this, she is a great deal like Kim Ogg, elected as a progressive without having to demonstrate any actually progressive policies, then resentful when #cjreform advocates demand change. Both Ogg's and Moore's races to me evince a similar dynamic, mainly because of how scornfully establishment Democratic incumbents are reacting to the reform wing of their party.

5. Who disavows the death penalty? Moore was the only candidate of the three who refused to disavow seeking the death penalty under any circumstance, saying she would have sought it for the Austin bomber if he had lived. In a statewide general election, that would suffice; in an Austin Democratic primary, maybe not. The crowd murmured with disapproval at her answer while responding with approbation to her opponents' condemnation of capital punishment.

6. Another big split: Garza and Martinson both said they'd use their discretion to stop prosecuting low-level felony drug-possession cases altogether, which would be a more aggressive stance than other "progressive DAs" in Texas so far. Moore said she agreed in principle but that it was better to divert the cases to misdemeanors, for fear of what the Legislature might do. Garza later drew a big applause line by responding that the DA must do what's right and not shy away from their principles out of fear of what the governor might do.

7. Reform-minded Dems: Criminal-justice-reform philosophies are spreading among the Democratic grassroots, and audience members were knowledgeable and engaged in a way that was refreshing. In both this race and the County Attorney's forum, reform-minded messaging appeared to score the most points with the audience of likely Democratic primary voters.

8. Time for a change: Grits likes Margaret Moore well enough personally, and she was a big improvement over the booze-soaked bully she replaced as Travis County DA before her. But simply not being a mean-spirited drunk is insufficient to the current moment, however much a welcome improvement that was in 2016. Moore's professional career spans nearly precisely the generation that spawned mass incarceration; at root, she retains the values and attitudes that created it and doesn't appear likely to embrace reforms that could dismantle it.

When this race started, it seemed to come down to a battle between Garza and Martinson to make the runoff with Margaret Moore. Between Moore's angry showing at candidate's forums, the firefighter union's surprisingly harsh attacks, and the receptiveness of Dem primary voters in Travis County to #cjreform messages, I'm now wondering if it's possible the wounded incumbent might not even make a runoff?

#PardonMe Mr. Governor, who lied at TDCJ?, a public-safety approach to DWI, and other stories

Let's clear some browser tabs. Here are a few odds and ends that merit Grits readers' attention but haven't yet made it into independent posts:

#PardonMe: More Texans should file for clemency
There are a lot more types of pardons, commutations, rights restorations, and remissions of fines and forfeitures available through gubernatorial clemency in Texas than I ever understood. See here for the full list and links to application documents. More people should start filing clemency requests! It can't hurt, you might get lucky, and an increase in the volume may help put #cjreform on the governor's radar screen. If you do file for clemency, be sure to tag the governor on social media and use the hashtag #PardonMe.

No really, who lied?
Federal District Judge Keith Ellison still wants to know who at the Texas Department of Criminal Justice (TDCJ) lied to him, and unlike Grits or Keri Blakinger or prisoner families, he has the authority and the tools to find out!

Taxation by Citation
The Institute for Justice just published a report called "Taxation by Citation." Here's a SA Express-News column from one of the authors. Grits have more to say on this after I've read it.

Rodney-Reed judge leaves bench over fitness issues
The judge in the Rodney Reed case retired, questioning his own mental capacity to preside over cases. Support for clemency in Reed's case is snowballing, with Republican legislators and Hollywood celebs chiming in to say his execution should be halted. Be sure to check out the Reasonably Suspicious interview with Reed's attorneys. MORE: On Twitter, Grits chronicled some of the more storied cases in Judge Doug Shaver's career, from presiding over the Twin-Peaks-biker-massacre debacle to declaring the lawyer for a capital-murder defendant needn't be awake during trial to provide effective assistance.

Guards fired, demoted over fatal TDCJ use of force
TDCJ fired a guard in a Huntsville prison and demoted two others after a fatal use of force incident reported Keri Blakinger at the Houston Chronicle.

Always something
An assistant DA in Panola County has resigned amidst allegations of misconduct.

Harris Co. public defender office growing
With Harris County DA Kim Ogg still publicly fuming that county commissioners didn't let her expand her staff, the commissioners court has significantly expanded the public defender office and it's currently on a hiring spree.

Many prison docs come from bottom of the barrel
From The Appeal and Type Investigations, "Why prisoners get the doctors no one else wants." Grim. Texas wasn't highlighted in the story, but it'd be a mitzvah for some reporter to get the list of docs working in Texas prisons and examine disciplinary histories both here and in other states.

A public-safety approach to repeat DWI offenders that doesn't involve prison
Texas incarcerates thousands of people in prison for repeat drunk driving. But a program first piloted in South Dakota, using insights from behavioral science and focused on repeat DWI offenders, shows far better results than prison for this cohort, reported the Wall Street Journal. Nobody loses their driving privileges or is sent to the penitentiary. Instead, they must show up twice a day - morning and evening - to take a breathalyzer, and are punished with short, one-or-two-day jail stints for non-compliance. Fascinating.

Bashing black-box breathalyzer tech 
That said, the NY Times published a feature arguing that some of the science behind breathalyzer tech is dubious or poorly implemented. This is by no means a new topic, but for a variety of reasons, in 2019, the idea that forensic evidence may not adhere to the strictest scientific standards is greeted with less resistance than in the past.

For the reading pile
Finally, here are several academic articles I'm printing out to read in the near future; maybe some of them will interest y'all:

• The algorithm says you did it: The use of black-box algorithms to analyze complex DNA evidence
• A look at the use of acquitted conduct in sentencing
• The effect of District Attorneys on local criminal justice outcomes
• Experimental punishments
• Disaggregating ineffective assistance of counsel: Four forms of constitutional ineffectiveness
• Will the Supreme Court rein in 'excessive fines' and forfeitures?: Don't rely on Timbs v. Indiana
• Facial recognition and the Fourth Amendment

Bonus tracks from Reasonably Suspicious interview with #RodneyReed's attorneys: Why all the forensics from his case have been discredited

For the October Reasonably Suspicious podcast, my co-host Mandy Marzullo and I interviewed attorneys for death-row inmate Rodney Reed, who is scheduled to be executed on November 20th. Despite this apparent failure, Bryce Benjet of the national Innocence Project and Quinncy McNeal of Mayer-Brown in Houston are in fact excellent lawyers, and their habeas-corpus-phase deconstruction has left little evidence remaining from the prosecution's case that convicted their client.

Regardless, Reed's execution looms.

We published the first part of the interview on the main, monthly podcast in October. Now, here's the full interview, including the final portion describing how all of the forensic evidence in Reed's case has evaporated.


If you already listened to the first part on the podcast, part two of the interview starts at the 11:40 mark.

Bottom line, the state's case hinged on two prongs: 1) forensic testimony that Reed must have had sex with victim Stacey Stites soon before her death, and 2) the fact that only friends of Reed, not Stites' acquaintances, corroborated his version that the two were engaged in an illicit affair.

Now, a re-investigation of the case by Quinncy McNeal has uncovered several additional witnesses who corroborate the relationship between Reed and Stites, none of whom had any relationship with Reed whatsoever. Indeed, after this interview was conducted, a witness came forward who says Stites' fiancee, Jimmy Fennell, confessed to killing her while in prison.

Meanwhile - and this is the portion of the interview that wasn't included in the October podcast - all of the prosecution forensics in the case have been discredited. The defense has secured retraction letters from the former Travis County medical examiner and the DPS crime lab saying the testimony provided against Reed at trial was wrong. If jurors had heard the corrected forensic testimony, much less the independent corroboration of his and Stites' relationship, Rodney Reed almost certainly would never have been convicted in the first place.

With evidence of Reed's likely innocence mounting, the decision whether he will live or die is up to Gov. Greg Abbott and the Board of Pardons and Paroles. They have less than two weeks to decide. Twenty-six Texas House members - 13 Rs and 13 Ds - have asked the Governor to commute Reed's sentence.

For more background, including the best exposition of recent evidence in the case, see Reed's "clemency petition." See also the Texas Tribune's latest coverage.

Find a transcript of our conversation below the jump:

Oklahoma! (does #cjreform); HPD raid response doesn't address phony informant; why do probationers die at high rates? And other stories

Here are a few browser clearing odds and ends:

One out of 8 Travis County jail bookings in 2018 was for Class C misdemeanors
In Travis County last year, more than 5,000 people were arrested for a Class-C misdemeanor only - about one out of every eight people booked into the county jail. Between the Freedom Cities ordinance restricting Class C arrests, beginning in January, and the elimination in June of the local no-sit-no-lie ordinance aimed at the homeless, those bookings should decline significantly for 2019.

Post-raid HPD reforms don't address faked informant that got 4 officers shot and killed 2 innocent people
After a no-knock drug raid in Houston this spring killed two innocent people and left four officers shot, HPD Chief Art Acevedo has announced he's creating a special division of the narcotics unit to execute search warrants in drug cases. But as I told the Houston Chronicle:

“His reform is not on point to what caused the problem,” said Scott Henson, policy director with the criminal justice reform nonprofit Just Liberty. “It’s not solving the problem that your investigators are relying on fabricated informants — [it] wasn’t a function of who’s doing the raid, but why you’re doing the raid, and the reliance on this informant, who it turns out didn’t exist. That’s what caused everybody to get shot. It just elides the core issue of what really happened.”

Attacking junk blood-spatter evidence
Check out an amicus brief arguing to disallow blood-spatter evidence in the Joe Bryan murder case that was the subject of Pam Colloff's massive NY Times Magazine/Pro Publica feature. In it, Duke law-school faculty and students argue that, based on current standards, the blood-spatter expert in Bryan's case could not today testify to the main points used to convict him.

Not so natural after all
His death in the Victoria County Jail was attributed to "natural causes." It turns out, he was denied his methadone prescription and died from preventable withdrawal symptoms. Read the excellent Victoria Advocate account from Kali Venable. See also the Advocate editorial board's condemnation of using jails and prisons to treat addiction.

"Power concedes nothing without a demand ..."
"... it never has, and it never will," said Frederick Douglass. So Grits doesn't feel too bad that elected officials in Austin consider criminal-justice reformers excessively pushy, as several implied in this Austin Statesman article about a string of successful, capital-city #cjreform campaigns. Nobody was going to do any of those things if reformers said "Pretty please" and then waited politely for a response.

Own it!
Gov. Greg Abbott's intervention into Austin's homelessness crisis means he now owns the issue. If it isn't solved, it's his fault. Not sure that was the wisest political choice, but it's the one he made. MORE: Now the governor "owns" his own homeless encampment, with neither a budget line item nor any apparent exit plan besides providing still hypothetical services to Austin's homeless ad infinitum. That'll teach 'em! 

Why do probationers die at high rates?
Here's a possible, future, Suspicious Mysteries segment for the Reasonably Suspicious podcast: Grits has long been aware of research showing incarceration in prison reduces life expectancy. But a new study shows that being on probation is associated with a much higher morbidity rate than being in prison or jail, much less in the free world. I don't know how to parse these competing claims. One one hand, while prison healthcare isn't great, being in prison makes it easier to treat chronic conditions because the patient is always available and can't easily decline treatment. On the other, prison can make you sick; e.g., people who contract Hep C in prison  may suffer liver failure later, once they're out. Meanwhile, to the extent criminal laws in general target the poor, the developmentally disabled, substance abusers, the mentally ill, minority communities subject to discrimination, etc., it's not surprising probationers would be an especially sick lot. Or maybe the difference is that people in prison aren't at risk of dying from car crashes! Who knows? Grits would like to better understand this nexus of corrections, health, and morbidity rates. I haven't yet wrapped my head around it. When people die in prison or jail, there is an independent investigation; no one investigates when probationers die, so outside of the above-linked study, we don't have very much information at all regarding why that is.

The Probation Trap
Probation as an institution changes its form and purpose depending on the angle from which one looks at it. Viewed one way, it diverts people from prison. Viewed another, it's a net-widening trap. The Philadelphia Inquirer has published an excellent series expounding the latter view. Via SL&P.

Oklahoma!
As much as it pains me to say so, Oklahoma has now definitely out-paced Texas as the red-state poster child for criminal-justice reform. Also via SL&P:

• Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"
• US News, "Oklahoma Focuses on Criminal Justice Reform"
• Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

On the ground, #cjreform is not really a red-state-blue-state issue.

When smelling pot is pretext for a search
In Philadelphia, police officers who said they searched a car because they smelled marijuana were extremely unlikely to find any and disproportionately searched black people. When the data was gathered, public defenders argued that "the odor of marijuana [should] no longer be considered probable cause for officers to believe a crime has occurred and conduct a search."

Breathalyzer tests as junk science
The New York Times took a trip down the rabbit hole of DWI breath-test forensics. Like DNA mixture software, analysts treat breathalyzers as a magical black box they simply assume supplies reliable results. The problems, however, have been long known.

'Five facts about crime in the U.S.'
Read this from the Pew Research Center.

Even arresting 'kingpins' won't reduce US drug demand

Arresting drug dealers was never a winning Drug War strategy because, as long as demand existed, there was always a willing supplier ready to replace anyone who was arrested, prosecuted, jailed, or even killed. As it turns out, that's true at the highest echelons of the international drug trade.

These changes arguably justify dismantling much of the federal drug enforcement infrastructure as we know it, argued an article in Foreign Affairs by Steven Dudley published this spring, declaring "the days of the monolithic, hegemonic criminal groups with all-powerful leaders are over." As a result, "For U.S. policymakers, it may be overkill to direct the resources of six federal law enforcement agencies toward dismantling these groups, especially in the era of synthetic drugs."

The author observed that today there are "a wide variety of American, Chinese, Dominican, Indian, and Mexican groups supplying the U.S. market, some that conduct almost all of their business online from within the United States."

The FA story linked to a detailed report on Fentanyl smuggling via Mexico and China that's worth a look for those interested in either addiction or drug enforcement. Texas largely has been spared a huge fentanyl problem essentially by chance: the cartels that supply Texas sell "black tar" heroin which doesn't mix well with fentanyl, while heroin that comes to the northeast and midwest from Dominican suppliers or from the Sinaloa cartel on the west coast is more easily mixed. Check out the spike in national overdose deaths associated with the rise of fentanyl:

None of this is to say Texas has no overdose problem. We do, and it's worsening. But it's so far been focused more on meth and cocaine than opiods.

Regardless, the death total was heightened by the Governor's veto of and continued opposition to Good Samaritan legislation. Moreover, the state's failure to expand Medicaid under the Affordable Care Act keeps drug treatment out of reach for nearly all low-income people except through the justice system. Jails and prisons are a poor and ineffective substitute for free-world healthcare, for addiction as much as for mental illness.

Notice, none of the things that would actually save lives involve chasing down drug suppliers in other countries. That has shown to be fruitless. What Americans refer to as "cartels" are really vast hydra-like webs of interconnected companies and criminal organizations that readily reproduce the function of any and every severed limb. Many, many billions of US taxpayer dollars have been spent trying to slay these beasts and for every head severed, two grow in its place.

This isn't new, by the way, it's always been true. It was easy for anyone paying attention to the world of drug smuggling to see that shooting Pablo Escobar solved nothing. Only reducing US-side demand can scale back the scope of the drug trade.

American law enforcement largely has failed, or more aptly, refused to accept this reality. As Upton Sinclair famously put it, “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

The "kingpin" model justified numerous law-enforcement strategies - e.g., expanded use of asset forfeiture, reduced Fourth Amendment protections, abetting the rise of SWAT teams and execution search warrants via SWAT-like "dynamic entry" -  that in practice mostly empower law enforcement in petty, workaday cases. For many years, the drug war was also a reliable source of federal pork.

All this was justified by the idea that trolling for "little fish" could lead to catching "big fish." But even the big fish turned out to be parts of massive schools and were easily replaced. We have decades of evidence that catching, jailing, or even killing "kingpins" does nothing to reduce addiction in the United States.

So if supply-side interdiction has proved pointless, what might affect the demand side? The best way to reduce demand would be to expand Medicaid to access treatment funds to fight addiction. Another recently proven method is to encourage legal, domestic sourcing. Pot legalization in many states has bolstered domestic supply and substantially reduced, but not eliminated, demand for illegal imported marijuana, as demonstrated in this data from the fentanyl report mentioned above:

One final thought: The myopic focus of US drug policy on Latin America is an odd thing, because Afghanistan is overwhelmingly the most important source of illicit opiods coming into the US, according to the Department of State (p. 29 of the pdf):

But drugs are almost exclusively portrayed in the press as a Mexico problem. (China's role was particularly highlighted in the fentanyl report.) In fact, the international illicit drug trade is a global problem, one fueled almost entirely by an insatiable US demand. As long as demand, and prices, remain high, no supply-side intervention will ever "solve" it. As the Foreign Affairs story colorfully concluded:

El Chapo was a powerful and wealthy drug lord, and bringing him down was an undeniably important step in curtailing the reach of Mexico’s cartels. But burnishing his status as a kingpin perpetuates a false narrative that destroying him—and those like him—will solve the problems posed by the drug trade. In fact, convicting one drug lord is more akin to plucking a single bee from the hive.