Wednesday, November 27, 2019

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
Top Stories
Fill in the Blank
The Last Hurrah (29:30)
  • Denouement of Harris County bail litigation
  • Why Greg Abbott owns a homeless camp
  • Rodney Reed execution stayed
Find a transcript of this episode below the jump.

Transcript: December 2019 episode of the Reasonably Suspicious podcast, co-hosted by Scott Henson and Amanda Marzullo

Mandy Marzullo: Hi, I'm Amanda Marzullo, and along with Scott Henson, we're Reasonably Suspicious. Texas State Representative, Poncho Nevarez has announced he will not run for reelection after he accidentally dropped his cocaine stash in the Austin airport. The drugs were in an envelope from his personalized, Texas house stationary. Scott, does this seem like a secure way to transport drugs?

Scott Henson: Well, I suppose there are less secure ways to transport drugs. You could walk around the airport with a satchel that has, "This is where I keep my cocaine" printed on it.

Mandy Marzullo: On it!

Scott Henson: Yeah, that might be a less secure way. Otherwise, -

Mandy Marzullo: It could say, “I, Poncho Nevarez ...”

Scott Henson: That's right. But otherwise, just labeling your cocaine with your own name and seal does seem, you know, a little much. I will say, it couldn't have happened to a nicer guy.

Mandy Marzullo: Someone who is more empathetic to people who are facing criminal penalties for low-level drug offenses, clearly, right?

Scott Henson: That's right. While, personally, I don't believe that low-level drug possession needs to be a felony - I think that treating addiction as a criminal justice issue is not a great idea - when somebody who has never lifted a finger to do anything about that is hoisted by their own petard, I don't feel too bad about it.

Mandy Marzullo: Yeah.

Scott Henson: Hello, boys and girls, and welcome to the December 2019 episode 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 is Executive Director of the Texas Defender Service. How are you doing today, Mandy?

Mandy Marzullo: Never been better, Scott.

Scott Henson: That's great. We have a fine show coming up for you, folks. Today, Austin cops tolerated racism in their ranks. Drug enforcement in Houston appears broken, and DNA mixture evidence comes under fire from a Federal judge.

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

Mandy Marzullo: The recent detention issue, actually, in Victoria County. You know, I'm always excited to talk about the criminalization of public health.

Scott Henson: Well, it's a terrible story, but we'll get to that here pretty quick.

Mandy Marzullo: First up, in Houston, the FBI has arrested two Narcotics Officers who orchestrated a botched raid on a house in the city's Pecan Park neighborhood, that left the homeowners and their dog dead, and four officers injured. In the aftermath of that news, the Houston Chronicle published a detailed investigation, identifying numerous allegations of prior misconduct in the Narcotics Division, which focused on low-level possession cases, targeting mostly black neighborhoods.

Mandy Marzullo: So, Scott, what insight can we gain from this disgraceful episode?

Scott Henson: This really was disgraceful. The Houston Chronicle's deep dive was incredibly revealing.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: Dozens of officers affiliated with the Narcotics Unit, every single one of them, the majority of their arrests were of Black folks, even though just 23% of the city's population are Black.

Mandy Marzullo: Yeah.

Scott Henson: Gerald Goines, the officer who was most prominently on display on these recent indictments, and who the FBI just arrested, his arrests here 95% Black.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: So, what we're really seeing is that the drug enforcement practices at Houston PD are stuck around 1990.

Mandy Marzullo: Yeah.

Scott Henson: It's about a 30-year old approach.

Mandy Marzullo: They're clearly out of step with best practices. I think the second line of the article was pointing out that Narcotics Officer really shouldn't exist, that people should cycle in and out of Narcotics Divisions, due to all of the pressures that they're under.

Scott Henson: Right. There's so much pressure for potential corruption.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: Especially for people who are in an undercover situation. You know, that's not something that someone should do for decades.

Mandy Marzullo: Yeah.

Scott Henson: That's something that should be done in very narrow circumstances, in a very controlled environment. Then, that officer should probably just move on, and do something else. That shouldn't be, like, oh, I do this for my 30-year -

Mandy Marzullo: Career.

Scott Henson: - police officer career, which is what these fellas were doing.

Mandy Marzullo: Exactly. Yeah, they were just ... That just seems almost like they were creating an environment to facilitate that behavior.

Scott Henson: Well, even more bizarre, in the SWAT raid that launched this whole debate, and that caused the Chronicle to investigate this in the first place, the informant that supposedly spawned all this was just made up.

Mandy Marzullo: Yeah.

Scott Henson: Goines had said that he had sent an informant in, and that informant had bought drugs, and seen firearms inside the house. It turned out, that informant did not exist. He just lied. I don't understand why you would do that.

Mandy Marzullo: Then, the fruit of the poisonous tree, and the person you called in, the report that drew his attention to the house in the first place is also charged -

Scott Henson: That's right.

Mandy Marzullo: - in this case.

Scott Henson: That's right, for making a false report. Although, whether or not that report was false ... Once the cops begin fabricating informants, that, to me, is the big story. I don't ... The 911 caller, I don't approve of swatting houses. That's kind of what that is -

Mandy Marzullo: Yeah.

Scott Henson: - where she calls the 911 to get the SWAT team to go in. The police have a responsibility to investigate before you do that. When your investigation is, oh, I'm going to fabricate evidence, and take it to a judge to approve this No-Knock warrant based on a lie, that I know is a lie, wow.

Mandy Marzullo: Yeah. Actually, I think it's Goines' attorney who made a comment that the caller's charge is what really stood out to him about the case. I think it actually is indicative, because there are allegations that call was made maliciously.

Scott Henson: Right.

Mandy Marzullo: In order to send in the SWAT team, which means that they knew that just by making one phone call, you could actually have, you know, a militarized force deployed.

Scott Henson: Right. This is something you see on, like ... The phrase is swatting someone, right?

Mandy Marzullo: Yeah.

Scott Henson: To make a false allegation that's intended to draw down the cops. That may well have been what was going on here. Certainly, the person was trying to make an apparently false allegation, in one way or the other. Again, that level of culpability compared to, then, an officer taking that information, and just fabricating evidence, taking it to the judge, that -

Mandy Marzullo: No, no.

Scott Henson: - escalates it.

Mandy Marzullo: No, no. My point is that it's an index of how bad the corruption is.

Scott Henson: Everyone knows that's how it works.

Mandy Marzullo: It's open, and notorious that there is a problem in the Narcotics Division, is what, I think, that charge is getting to.

Scott Henson: Right.

Mandy Marzullo: You know, obviously the facts are going to be fleshed out more over the next several weeks.

Scott Henson: Right.

Mandy Marzullo: I don't want to be sued right now, although I'm probably judgment-proof. Just saying.

Scott Henson: What really struck me, here, we've not seen, frankly, this level of in-depth journalism on Drug War cases -

Mandy Marzullo: Yeah.

Scott Henson: - since Texas shut down its system of regional narcotics task forces. For folks who aren't aware, about 20 years ago, there were some bad innocence cases where undercover drug cops were setting up innocent people, very much like what caused this SWAT raid. There was an array of reforms aimed at that, that didn't seem to solve the problem. Eventually, Governor Perry just shut down about four dozen of these task forces, that were all around the state, that engaged in exactly this type of low-level drug enforcement. They're mainly going after these less than a gram cases. I think they said 70% of the cases that this Narcotics Division made were all less than a gram cases.

Mandy Marzullo: So, they're not actually getting to the supply chain.

Scott Henson: That's right. Moreover, of those less than a gram cases, in 2018, 46% were dismissed. So, they're not even making cases the prosecutors are able to take forward, in many cases. It really makes you think that Narcotics Unit is just a black hole of malice, and awfulness, and maybe should just be flat out disbanded. Something is going on there that's gravely wrong.

Mandy Marzullo: Yes.

Scott Henson: In many ways, DNA analysis amounts to the gold standard when it comes to forensic evidence. But, when DNA from multiple sources is mixed, that gold standard status falls away, and courts must rely on a murkier, much less certain brand of evidence. Long time listeners will recall that problems rose in 2015, with bleeding-edge algorithms used to interpret DNA mixtures.

Scott Henson: Every crime lab in Texas was using flawed math to interpret this evidence, it was revealed at the time. State leaders urged crime labs to switch to an approach called “probabilistic genotyping,” which uses sophisticated Bayesian math to make estimates where there wasn't enough probative evidence to do so before. Texas courts have, so far, allowed this evidence, but have never formally ruled on whether the science underlying the method was reliable enough to use in court. Now, a Federal Judge in Michigan, Judge Janet Neff, has declared the most common probabilistic genotyping software doesn't pass the Daubert standard for admission into court.

Scott Henson: Mandy, this ruling doesn't apply in Texas, but it weighs in on an issue that's very much still playing out here, which may ultimately be decided by the US Supreme Court. What are the implications if her stance prevails?

Mandy Marzullo: What you're laying up in the question, which is that this form of DNA testing probably isn't a solution to the issue that they wanted it to solve. Because, in her ruling, she's noting that you need a certain quantity of evidence to begin with.

Scott Henson: Right.

Mandy Marzullo: And that it can only be a maximum of three sources, and at least 20% of the DNA needs to come from the target.

Scott Henson: Right.

Mandy Marzullo: The investigational target. So, you know, it means that, probably, in touch DNA cases, which this is -

Scott Henson: Right. It was, just, several people had touched a handgun.

Mandy Marzullo: Exactly. It was a felony possession of a firearms case, which in and of itself, makes it kind of an interesting case to be running DNA on. It's sort of a low-level Federal crime.

Scott Henson: Right.

Mandy Marzullo: In that case, it was 7%. She said, you know, "This just isn't reliable on the basis of that. Given everything that we know, we cannot admit this evidence."

Scott Henson: That's right.

Mandy Marzullo: So, it makes you wonder, well, what real benefit is there, to these mixtures testing?

Scott Henson: Right. In Texas, in 2015, when they told everyone to switch to probabilistic genotyping, previously they had used a method that was based on more traditional statistics. It required there to be a minimum amount of DNA in order to test. The problem is, with mixtures, with DNA mixtures, once you overlay multiple people's DNA, sometimes you have what's called “allele dropout,” which means that certain amounts of evidence get washed out by there being multiple folks.

Scott Henson: What this probabilistic genotyping does, is use these very sophisticated mathematical models, these Monte-Carlo-Markov-Chain mathematical models, that are way beyond my ability to truly understand, to estimate what those alleles would have been if they had not been washed out. So, you're estimating what evidence would exist, if it existed, except it doesn't. So, we only have your estimate. Because of that, the probability software has a different result every single time, because it's just an estimate, it's not actually measuring something. It's estimating what would be there.

Scott Henson: It turns out, even with this probabilistic genotyping, we still have to have a fair amount of the DNA there, that's what this judge is saying. You can't just have, like, single-digit percentages.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: We're making estimates at that level. You need some volume of DNA to make a judgment from. With the 7% that was in this case, they were saying, "You're really just talking about a few cells to judge from. It's just not quite probative."

Scott Henson: We were told, here in Texas, when they switched from the old method to the new one, that the big barrier to success was still going to be, okay, some DNA is just too complicated to judge.

Mandy Marzullo: Yeah.

Scott Henson: We were told, you can't analyze “crap,” was what Bruce Budowle was saying.

Mandy Marzullo: I think he was also saying, too, in his presentations, that a lot of DNA analysis really depends on the number of contributors, what you know about whose been handling the evidence.

Scott Henson: That's right.

Mandy Marzullo: You know, that the devil is in these multiple mixture samples, where they don't know how many people have actually contributed to the sample. You might falsely conclude that someone is a match, if you think that it's two, a two sample person. If it's three, that person may actually be excluded. The devil is in the details, here.

Scott Henson: That's right. From this opinion, she's saying that more than three, you should never be using this method. I think a lot of police departments are sending in DNA samples with four, five, six contributors, or that they just don't know.

Mandy Marzullo: Yeah. I mean, I'm thinking about here, you know, I'm sitting at your dining room table, and touching your tablecloth. You know, if someone came in, and for some reason they wanted to know if I'd been here, and verified it, they don't know how many people have sat at your table.

Scott Henson: That's right, that's right. Since the tablecloth was changed out, it might have been a dozen folks who've sat here. What number do you put in? What's the number of contributors? That's something the DNA analyst is supposed to put in. Well, if you really have no basis to know whatsoever, it's a big problem.

Mandy Marzullo: Yeah.

Scott Henson: I feel like, I'm very gratified that, finally, some Judge has really dug deep into this. I felt like, here in Texas, all the decisions would elide this core Daubert issue, or Daubert issue. I never know how to pronounce this.

Mandy Marzullo: I've had people always say Daubert, but, you know, I'm not sure.

Scott Henson: That's right. Well, regardless, I've been waiting for someone to really take a deep dive on this question, because a lot of questions were raised for me when we first heard these analyses four years ago, in Texas. She raised a lot of the same concerns. It's not that technology won't ever be able to get there, but it's not there now. This is the truly bleeding-edge of biology. A lot of these are basically experimental methods.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: That are being used, and we hope their right, but it's just a little soon to be using it in such a wide-spread way. This, obviously, is a beginning of a debate that has to go all the way up the chain in Michigan, and other circuits -

Mandy Marzullo: Will pick it up.

Scott Henson: - will eventually pick it up, or look at this. I feel like this is the starting gun for the debate I've been waiting for, on this topic.

Scott Henson: Now, it's time to play Fill in the Blank, in which Mandy and I suggest different ways to finish the same sentence.

Scott Henson: First up, a young man named Clinton Harrington died of withdrawal symptoms in the Victoria County jail, after jailers took him off a prescribed methadone treatment he was receiving to combat a heroin addiction. Medical records indicated he died in excruciating pain, without proper care, the paper reported. Harrington's death was officially attributed to natural causes, with the Travis County Medical Examiner saying it was caused by complications from hypertension, and serotonin toxicity. But, medical experts dismiss that finding, pointing to the jail weaning him off methadone much more quickly than established protocols would dictate.

Scott Henson: So, Mandy, fill in the blank. Mr. Harrington died because -

Mandy Marzullo: Because our justice system criminalizes drug addiction, and poverty. He was detained on drug possession. He had, like, a cocktail of marijuana, Xanax, and meth in his pocket. The reporting that I saw didn't indicate that there was any intent to distribute there, it was just possession of those drugs.

Scott Henson: That's right. He's somebody who had a severe injury, gotten hooked on Opioids via painkillers, and -

Mandy Marzullo: Well, self-medicating.

Scott Henson: That's right. Self-medicating, ended up on the methadone to get off of the Opioids, but had run into addiction troubles.

Mandy Marzullo: Yeah. Right there, you know, I think a lot of experts would argue that he shouldn't have been held in detention at that point. He's being held because he can't make bail. His grandmother is trying to scrape together funds to get him out. In the meantime, he asks for help with his addiction, just also demonstrating that he is someone who is looking to lead a productive life.

Scott Henson: Right.

Mandy Marzullo: In the process, the jail, to its credit, works with the local methadone clinic to put together a treatment plan. I think it was a 10-day, or a 10-step plan, by which he'd be weaned off the methadone. But, it was too quick. In the process, he was requesting help, and the jail wasn't responding. The stories here are particularly dramatic, because he ... Apparently they needed him to request assistance in writing, but he was in too much pain to fill out the forms, so someone else was completing it for him.

Mandy Marzullo: Any medical care assistance program that requires someone to fill out a form is crazy.

Scott Henson: Right. That gets me to my answer. I would say that Mr. Harrington died because the jail, simply, didn't care. The jailers simply weren't exhibiting the basic humanity you would when a human being is in excruciating pain. I mean, we saw this happened over and over, for days.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: He's asking for help. Somebody, somewhere, should have figured out something was wrong. Yes, they'd gotten this nine-day step down from the clinic, and all of the experts that the reporter talked to nationally said, "That's way too short."

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: That it should take many weeks to step down from the level of methadone he was on. So, that clinic definitely has some answering to do, but once things got as bad as they clearly got, the healthcare staff in the jail should have intervened.

Mandy Marzullo: Yeah.

Scott Henson: They should have been taking the guy to the hospital.

Mandy Marzullo: Yeah, no, there were reports that he was convulsing, he didn't have control over his hands. At that point, it's an emergency situation. You don't wait for someone to fill out a form, and to process paperwork.

Scott Henson: That's exactly right. So, this is a tragedy, compounded by, really, just neglect, from my perspective. I feel like, yes, there was a medical error made that was outside of the jail's control, but that was the start of the problem. Every step down the path was exacerbated by them just not seeming to prioritize.

Mandy Marzullo: Well, someone whose suffering from that level of an addiction problem, I think it's inappropriate for them to be in the justice system.

Scott Henson: That's right, the jail's not the place to get drug treatment in the first place. It's not simply drug treatment, to take someone whose so addicted, they have that severe withdrawal, and just take them off, cold-turkey, which is the only reason jail might be -

Mandy Marzullo: Where you do it.

Scott Henson: - in the mix. Yeah, this is evidence that's just a bad approach from the get go.

Mandy Marzullo: Next one. An Assistant Chief at the Austin PD, named Justin Newsom resigned after a whistleblower revealed that he used racist language in departmental communications, including text and emails in which he used the N-word to describe fellow officers. Newsom characterized the conversations as taking place "among friends," but they were all official police communications related to department business. Newsom retired before the department could investigate or discipline him.

Mandy Marzullo: So, Scott, fill in the blank. Chief Newsom's racist communications are -

Scott Henson: The tip of the iceberg. Earlier this year, we talked about the Plain View Project, which was an analysis of social media posts from nine different police agencies, including a couple in Texas. At each of these agencies, they found that around 15% of officers overall that they analyzed, were issuing these racist, or misogynistic, or hyper-violent, problematic social media posts. This was something that was consistent across agencies. They all had this underbelly, this subculture that was engaging in this type of behavior.

Scott Henson: Well, what this tell us is, the social media are just the boldest and brashest of those folks. I mean, what's going on in internal communications, in this case, was even more revealing. Local advocates, in fact, have been calling for, in the wake of this, for Austin PD to do an analysis of the internal communications, of the text messages, the emails, the instant messaging, to identify whether there are other officers who were engaging in this type of behavior. Calling your fellow officers, you know, dumb N-words, is pretty brazen. This is an Assistant Chief. The people, the “friends,” he was communicating with were other Assistant Chiefs.

Mandy Marzullo: I know!

Scott Henson: It isn't really, just, "Oh, that's just what I say among friends." Yeah, all your friends are high ranking cops, so that's not making us feel better.

Mandy Marzullo: Yeah. You know, I agree, absolutely. I think, you know, the only thing that I'd add to that, or supplement is that, for the social libertarians out there, who really believe in the First Amendment, this is counter to the Austin PD's mission. This type of language means that there are factions within it's staff, that different pieces of the organization are not working together because of how they're viewing each other. It destroys the relationship with the community.

Scott Henson: Moreover, if you want to exercise your First Amendment rights to issue racist commentary, then you don't need to be wearing a badge and a gun to do that, right? It's one thing to say, "I have a First Amendment right to behave that way," but when you're doing it on the job, as a police officer?

Mandy Marzullo: Yeah. That's the thing, right? You're on the job, as a police officer. You can't do your job. No informant from a minority community is going to want to give information to a police officer who they know has a racial bias against them.

Scott Henson: That's right.

Mandy Marzullo: Just right there, the function is being undermined by this behavior.

Scott Henson: I would dare say that, probably, African American police officers probably wouldn't be too interested in working with the guy, either.

Mandy Marzullo: Yeah, on top of that. You know, I just want to drive that last point home, in case any of our conservative listeners have any doubt.

Scott Henson: Right. You can exercise your First Amendment rights to be a racist on your own time, is my thought.

Mandy Marzullo: Maybe -

Scott Henson: As a police officer, leave that stuff at home.

Scott Henson: Okay, last one. The Sixth Amendment Center issues a major report about the right to counsel and indigent defense, commissioned by Potter and Armstrong Counties, using Federal grant funds. They found that many indigent defendants, especially those accused of misdemeanors, may not have had council appointed at all. Those who do get lawyers, may be represented in name only, typically receiving very low-quality representation.

Scott Henson: The report, in part, attributed this to paying lawyers a flat fee, so they made the same money whether they worked hard or not. Attorneys were also radically overworked, with lawyers carrying case loads up to eight times as high as recommended by the Texas Indigent Defense Commission.

Scott Henson: So, Mandy, fill in the blank. The problems with indigent defense in Potter and Armstrong counties stems from -

Mandy Marzullo: I'd say, both pervasive problems with Texas' indigent defense system, and a local problem, where the courts have allowed themselves to be co-opted by law enforcement.

Mandy Marzullo: You know, with respect to the broader indigent defense problems, I mean, Potter and Armstrong counties are among those in Texas that have had, historically, a hard time getting their indigent defense system off the ground. They're under-funded, the judges who preside over their cases are often County Commissioners, and may not even be lawyers.

Scott Henson: There are not that many lawyers there to begin with.

Mandy Marzullo: Yeah, on top of that. My first job out of law school was talking to judges like this, who didn't know that there was a Sixth Amendment right to counsel in misdemeanor cases.

Scott Henson: Right.

Mandy Marzullo: It's also that, sort of, structural problem that the report highlights. You have crazy caseloads for the attorneys that do take these appointments. They're not being compensated adequately. There's no access to defense investigation services. Really, the system is failing. I wouldn't even say it's on the brink of failing, it is failing.

Mandy Marzullo: Then, on top of that, you have a local practice where jailers, essentially, are responsible for informing defendants of their right to counsel, and discouraging them from invoking it. Because, they're also the ones investigating, sometimes. That is completely inappropriate. The court shouldn't be allowing that to happen.

Scott Henson: Right. Well, when a cop is the one informing you that you have a right to counsel, and is simultaneously discouraging you from exercising it, that -

Mandy Marzullo: And putting you in a cage.

Scott Henson: - that amounts to intimidation.

Mandy Marzullo: Yeah, no, it is intimidation.

Scott Henson: So, I definitely agree with that.

Scott Henson: I would say that the problem there stems from, frankly, crappy judges. I think that the judges, and I know some of them, maybe on some of these issues, are decided by the County Judge, who may not even be an attorney, but clearly the judges are just allowing practices that are illegal, unconstitutional. This intimidation of people out of right to counsel -

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: - is very bad news. There is another allegation ... not an allegation, it was an observation, that judges were requiring indigent defendants to repay the cost of their attorneys, without having any hearing, or any analysis of whether they could afford to. The report declared this is brazenly against Texas state law.

Mandy Marzullo: But, bizarrely, brazenly throughout the State.

Scott Henson: Right.

Mandy Marzullo: That is something that has been occurring for at least a decade, I think perhaps even longer.

Scott Henson: Very clearly, the judges are just ignoring some of their fundamental duties in these process, to try and make the cases clear more quickly. But, you're putting the thumb on the scale, on behalf of the prosecution, in essence. Over, and over, and over. With 74% of misdemeanor defendants proceeding pro-se, without an attorney at all, what chance do those folks have?

Mandy Marzullo: Yeah, no.

Scott Henson: They're just being ground up in the system.

Mandy Marzullo: Yeah, no. I mean, the system is just a tool for prosecution. The prosecutor's the only lawyer in the room, they're the ones that are controlling what's happening, so they win every time.

Scott Henson: Right. I do agree with you, that there's some state-level patterns and practices, that this is just an example of. At the same time, I feel like we do always have the come back to holding these local decision makers' accountable, because that's who that responsibility lies with, to make sure that the defendants are treated fairly, and they're not.

Mandy Marzullo: Yeah, no, they're not. I just want to point out, if we fix these two counties, we still have dozens more, where these problems are occurring.

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

Mandy Marzullo: All set! Let's do this.

Scott Henson: Federal bail litigation in Harris County has finally concluded, after Judge Lee Rosenthal signed off on long-awaited settlement language, and issued a consent decree. Mandy, what should the public take away from this outcome?

Mandy Marzullo: You know, this is an exciting improvement in Harris County. I am thrilled, and the public should be thrilled, that we're not spending millions of dollars to detain people who are not a threat to public safety.

Mandy Marzullo: What's also exciting is that this is a really big Civil Rights victory that was obtained in Texas courts. You know, it's a Federal court, but it's still a Texas-based court. That means that I think it holds a prospect for future litigation.

Scott Henson: Right, right.

Mandy Marzullo: It bodes well.

Scott Henson: There's a lot of people who thought the Fifth Circuit would never let something like this happen, and here we are.

Mandy Marzullo: Next one, Governor Abbott ordered State agencies to intervene after Austin modified, but refused to abandon, it's stance against arresting homeless people for sitting or lying down in public property. The Department of Transportation has begun cleaning out homeless encampments under highway overpasses, and the Governor ordered a camping site set up for the homeless, east of town.

Mandy Marzullo: Scott, what do you make of this outcome?

Scott Henson: Part of me finds this quite funny, I have to say, because I had written on my blog that if Governor Abbott intervened in Austin's situation, that he would “own” the homeless issue. That, if homelessness continued afterward, that it would be his responsibility.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: It would be on him. Well, now he literally owns his own homeless encampment.

Mandy Marzullo: Yeah.

Scott Henson: Which he has created without any budget line item, without any staff, without any facilities. I'm not sure this was the outcome that he intended, but I find it kind of humorous. He not only owns the issue politically, he literally now owns his own homeless encampment. That's amazing to me.

Scott Henson: Okay, last one. Last month, we interviewed attorneys for Rodney Reed, who was scheduled to be executed on November 20th. Since then, bipartisan legislative support has arisen for the Governor to issue a reprieve. Celebrities from Kim Kardashian to Dr. Phil have weighed in on the case, and the Court of Criminal Appeals stayed his execution to consider his actual innocence claims, among others.

Scott Henson: Mandy, why has Reed's situation generated so much public support for his position, compared to other death penalty cases?

Mandy Marzullo: So, I think it's two things.

Mandy Marzullo: I think the first thing that's really important for courts to keep in mind, especially as they're looking at this case, is that it is extraordinary. There are a lot of issues with this case, questions that really go to the heart as to whether or not he did it, that have remained unresolved despite decades of litigation.

Mandy Marzullo: You know, I think the other piece is that there's a growing consensus in the public, and within state government, that the death penalty really should be reserved for extraordinary cases, that are really severe, and where we're really certain about the facts.

Mandy Marzullo: A Gallup poll just came out, and for the first time, I think, since the 1970s, a majority of Americans support life without parole over the death penalty. Even death-penalty proponents, when they're pushing legislation to expand use of the death penalty in Texas like we saw this past session, they're doing it with opening statements saying, "Yeah, there are problems with how the death penalty is administered, and you need to be mindful of that." I think that's why we had such an overwhelming number of politicians in Texas, from Ted Cruz to the most liberal Democrats, saying that an execution was inappropriate in this case, at this time.

Scott Henson: All right. Well, 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: 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: Just a quick shout out to Judge Alkala, we miss you, as always. And to Incha, with the Vera Institute of Justice.

Scott Henson: All right.





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