TX county jails seek to avoid, fail to cooperate with investigations into medical deaths, says Jail Standards Commission's Sunset 'self evaluation'

Grits took time this morning to read through the Texas Commission on Jail Standards' self evaluation created as part of the "Sunset" process, through which the Texas Legislature evaluates agencies' functions every few years. For my own purposes, I took a few notes. Here are the highlights:

For starters, jail capacity in Texas has increased more than five-fold over the last 36 years, during which time the state's population didn't quite double: "From 1983 to date, the number of county jail beds has increased from 19,000 to 96,578." About 2/3 of those beds are full at any point in time.

Evading death investigations through creative, post-hoc dismissals
TCJS identified a recurring pattern where some counties claim someone who died in their custody had been released in order to avoid an outside investigation. The problem arises when:

the county claims they have released from custody because a judge has dismissed the charges. While the inmate technically may no longer be in custody, there is a very real possibility that the events that contributed to their death occurred while they were in custody and preceded their PR Bond or transfer to the hospital. By not reporting the death, the jail avoids the required criminal investigation. This could be viewed as circumventing the intent of the legislature and existing statutes.

The agency has requested an Attorney General's opinion to clarify the issue, but that "does not guarantee a solution."

'Several times per year' jails seek to conceal medical records from TCJS death investigators
Some local jails, particularly those who contract out medical care, have sought to prevent TCJS from accessing inmate medical records as part of death investigations. Because part of their role is determining whether jail staff followed physician's orders, this would keep them from providing meaningful oversight in such cases. From the report:

Several times per year, the agency will encounter opposition when requesting inmate medical records. This most often occurs when dealing with a facility that utilizes a contract medical provider. Other situations in which this has been an issue is when a facility is using a contract provider for mental health services. When this occurs, the provider most often cites HIPAA as the reason for their reluctance or refusal to provide access. In other cases, the provider will claim that the creation of these records are “proprietary” and not subject to disclosure. When either of these situations is encountered, it slows down the process of trying to determine if there were any violations of minimum standards in an extremely important area. Failure to provide adequate healthcare can have dire consequences, up to and including death. Unfortunately, we have determined on several occasions that jails have failed to follow physician’s orders, and being able to identify and correct this issue is extremely important. Current state law and the federal act regarding disclosure of medical records provides an exemption that we have been able to utilize in the past when this issue arises. However, there is still opposition as entities misinterpret (intentionally or due to lack of knowledge) this exemption and slow down the resolution of complaints and investigations. (emphasis added)

Dealing with rulebreakers more quickly
The agency tends to focus on administering technical assistance to jails that violate rules as opposed to using punishments to provide incentives. "Over the past decade, the agency has expanded the amount of technical assistance provided to jails to reduce potential areas of non‐compliance. This approach has been well received by county officials and has allowed staff to focus on larger issues while correcting minor ones at the time of inspection." (See here for examples of inspection reports.) But as a result of recent legislation, counties will be expected to regain compliance more quickly following rules violations:

When first created, the agency’s enabling statute allowed a county up to one year to regain compliance. This provision has recently come under criticism as being too long. One of the bills from the 86th Legislative session now requires facilities that are operated by a private vendor and fail an inspection to appear before our board at the next regularly scheduled meeting. These meetings take place on a quarterly basis, which significantly reduces the amount of time we would expect a facility to remain in non‐compliance.

How other states handle jail oversight
The report includes an excellent, three-page table (pp. 6-8 in the paginated document; pp. 8-10 of the pdf) describing how other states handle oversight of local jails. It's a very nice little compendium of the agencies, enabling statutes, and basic jail oversight functions across states.

Agency as 'referee'
State government regulates jail conditions, but local Sheriffs operate the jails and county commissioners courts provide their funding. This disconnect among responsibilities can inject the jail standards commission into local political fights:

County jails are rarely a priority for local government but represent one of the largest liabilities for them. This can create friction at the local level and prevent effective and constructive communication between the sheriff, who is responsible for the jail’s operation, and the Commissioner’s court, which is responsible for funding it. These are local issues created by local decisions, but they directly impact the effectiveness of the program. With a goal of having all jails operate in compliance, the agency is sometimes placed in the unenviable position of referee in our attempts to meet our goal.

Training new Sheriffs a particular problem
From the agency's perspective, every newly elected Sheriff amounts to a role of the dice. They all run on a "keep us safe" political platform that pretends they're out leading posses chasing bad guys and barely mentions the jail management function which, for most of them, is the most significant and time consuming part of their job. From the report:

Every four years, there is approximately 33% turnover of the sheriffs from the previous cycle who are taking office for the first time. Depending upon their background and previous experience, their understanding of jail operations and the role of the agency varies greatly. Early outreach and education occasionally alleviate some of the issues but not always and not with all the issues.

Shift to electronic reporting despite county opposition
The agency will finally stop receiving paper reports that have to be re-typed into spreadsheets and have counties begin providing statutorily required data electronically.

With the passage of HB3440 (86R) by Caprigilone, over the next two‐year cycle, the agency will be phasing in electronic reporting. This will consist of counties submitting to the agency each month a “locked” excel spreadsheet containing the statutorily mandated data. Prior attempts had been met with resistance from counties, but it is no longer feasible or even responsible to have one FTE assigned to nothing but data entry in 2019. By having the counties submit this data electronically, the FTE previously assigned will now perform quality control checks and simply import the data into the agency database. From there, the data can be used to run multiple reports that we are required to create. It is anticipated that the FTE previously assigned can now assist with other duties and functions of the agency as assigned.

Disconnected county computer networks prevent real-time data analysis
The agency is frustrated that legislators expect them to be more closely tracking data from local jails than they are technically able to at the moment, not just because of statutory reasons but because of technical issues related to linking disparate computer networks:

Efforts to educate members of the legislature about our ability to carry out certain tasks they would like accomplished are sometimes met with “dismissiveness.” Most of this is related to data collection and information submitted by the counties. At this time, there is no central database or portal into which counties can enter and submit information “real time.” The monthly population reports are simply a snap‐shot of the inmate population on the first of the month. The other reports required by statute are daily counts but deal with specific segments of the inmate population not the entire population. Part of the issue with this inability to tie the 240 county jails into a network is that each county has purchased or developed their own software with varying levels of compatibility and capability.

Low jailer pay degrades professionalism
The report directly linked a lack of professionalism among county jail guards to low pay.

With each county jail owned, funded, and operated by local government, they are the ones that decide how much to allocate for jail staff salaries. In an overwhelming majority of counties, the starting pay is a major drawback and jails have a difficult time recruiting and retaining qualified staff. This is an underlying factor in almost every instance of non‐compliance and makes it difficult for Jail Administrators to manage and operate a jail. This results in a wide range of professionalism amongst the jails that we regulate. This in turn requires agency staff to provide additional technical assistance to county jails to assist them in operating safe and secure facilities.

How 'jails have become mental hospitals, and jailers have become social workers'
The agency suggests additional training for local jailers on mental health, especially in rural counties, but they recognize the mental-health problem is bigger, more structural, and fundamentally budget-based than a training-only response can solve:

One area that we are exploring for possible expansion is mental health training. Interaction with an individual with mental illness is challenging even in the best of circumstances. Once a person with a mental illness enters the criminal justice system, that challenge is exacerbated by a factor that is simply hard to quantify. With insufficient mental health providers to service the general public, the need in jails is even greater. With an estimated 30% of the inmate population either diagnosed or exhibiting signs of mental illness, the demand far exceeds supply. By default, the result is that our county jails have become mental hospitals, and jailers have become social workers. Neither the facilities nor the staff that operate them are properly equipped to handle this continuing issue, and no long‐term solution is in sight.

"Difficult and unpopular would be the two most accurate words to describe any possible solution" to overuse of jails for mental health purposes, the report opined.

Administering "Prisoner Safety Fund" now a key agency function
In addition to its traditional functions, the agency now lists as one of its six key functions the administration of the "Prisoner Safety Fund," which state Rep. Garnet Coleman created under the Sandra Bland Act in 2017. That fund had its authority expanded earlier this year. Here's what it does:

Prisoner Safety Fund. The 85th Legislature created the Prisoner Safety Fund as part of SB1849(85R). The original purpose of the fund was to assist counties that operate a jail with a capacity of 96 beds or less with meeting the technology requirements set forth in the bill. There were two areas specifically targeted. The first was the ability to verify observation checks of the inmates by staff in high‐risk areas by an electronic means. This can be accomplished via camera or electronic sensor. The second was the provision to allow access to mental health services 24 hours a day via tele‐mental health services. The 86th Legislature amended the criteria in HB4468(86R) and increased the number of counties eligible to those that operate a facility with a capacity of 288 beds or less.

So the Legislature has created a fund specifically to prevent jail suicides and facilitate provision of mental health services. That could afford some interesting opportunities going forward, although each new funding battle will be a struggle. Certainly the problem hasn't been solved yet, as an AP report emphasized recently. See a detailed discussion of the (relatively modest) grant program beginning on page 71 of the pdf.) Most of the money in the fund has not been spent yet.

Records maintained by the Jail Commission
For those seeking records from the agency, here's a good description of what they have:

The Assistant Director authenticates the reports and data submitted. The following is authenticated to ensure accurate reporting of measures:

(1) Agency Calendar. Each entry is  required to have an associated memorandum prepared by the staff member involved in the activity. The staff member submits these memorandums to the Assistant Director, who reviews each entry on the calendar to ensure that a memorandum is available.  

(2) Inspector Activity Log. Each inspector is required to submit a monthly activity report. The Assistant Director compiles these reports into the Inspector Activity Log and verifies them for accuracy by reviewing a master log maintained by the Assistant Director. Any discrepancies are checked against the county’s inspection files, which are maintained in the agency file room. 

(3) Planning and Construction Log. The planner submits a log. Any activity that is designated as a key measure is reviewed by the Assistant Director to verify that the activity is denoted on the calendar or monthly activity report and that a memorandum is available. 

The Planning and Construction Log is maintained by the Planning and Construction Division and provided to the Assistant Director no later than the fifth day of the following month. The Planning and Construction Division notes the following:

1. Technical Assistance provided to counties on site. 
2. Occupancy Inspections conducted (pass or fail should be noted).
3. Special Inspections conducted. 
4. Training Attended/Conducted. 

Memorandums are submitted in order to document activities designated as key measures.

On pages 16-17 of the pdf is a list of all the datasets maintained by the agency. (Many of these are available on their website.)

Also, some researchers may find it useful to see the information commissioners are given at their meetings:

For each Commission meeting, a reference book is created that includes information on any issue that comes before them. In addition, this book contains current financial statements, copies of any audits or reviews that are periodically conducted by outside entities, and a listing of staff activities during the previous three months. There is also a section that contains the compliance status of all jails under our purview, number of complaints received against jails under our purview, population trends, and construction projects.

Forgotten history
Texas law has mandated safe and suitable jails since the 1920s, but the state didn't begin inspecting jails until 1969. That year, the federal court intervened in "almost 20" local Texas jails because of poor conditions. The Legislature changed the law to allow inspections. (Really, they removed a prohibition on inspections.) After that, "inspections were conducted of all 254 county jails, [and] all but six were found to be in violation of state law."

In 1974,  a survey revealed that 68 percent of jails did not provide 24-hour supervision; 121 left prisoners alone at night; 40 percent "slept prisoners on the floor."

The Legislature formally established the commission in 1975. By 1978, "The Commission became mired in controversy regarding funding, conflict of interest, and agency abolishment." However, 1979 witnessed, "Acceptance of Texas Minimum Jail Standards by Federal Courts and drastic reduction in federal court intervention. The Commission issued the first notices of non‐compliance [later that year], marking the beginning of enforcement efforts."

Inmates from outside Texas
A few county jails house contract prisoners from other states, in particular, "New Mexico, Arkansas and Idaho." New Mexico and Arkansas Grits can perhaps understand as a function of convenience,  proximity, and the logic of rural resources. The Idaho inmates, though, constitute their own mostly forgotten story; they're housed in a privately run facility down in Eagle Pass and the contract has caused lots of problems.

In addition, a few counties contract with private-prison companies to manage immigration-and-other-federal cases:

several federal agencies such as the Bureau of Prisons, Bureau of Immigration and Customs Enforcement, and the United States Marshal’s Service, all contract for bed space that falls under the Commission’s regulatory authority and is subject to inspection. Included in this number are seven (7) privately operated facilities and the companies that operate them through inter‐governmental agreements between county and municipal governments.

Inmate and family complaint procedures
Starting at the bottom of page 47 of the pdf is a detailed discussions of procedures related to inmate an family complaints which may be useful to those who, you know, want to complain. However, one can't file a complaint with TCJS before first going through the local jail's grievance process. They're an oversight agency, not the first point of contact. (If you're going through this process, Grits would recommend contacting Diana Claitor at the Texas Jail Project, who has forgotten more about the subject of jail-grievance processes than Grits has ever known.)

AG punted authority to approve contract-inmate schemes to TCJS
Here's a weird tidbit about jail construction/finance I didn't know. Grits has covered numerous Texas county jails seeking to expand to house immigration detainees and other contract prisoners. But I was unaware that, in the early '90s, the Attorney General's Public Finance Division struggled with this question of

whether the financing of jails or detention facilities of substantial capacity intended to house inmates of governmental entities other than or in addition to those of the sponsoring entity meets the public purpose requirement for the issuance of bonds and other securities.

They decided to punt the issue to TCJS, requiring that the executive director provide a formal letter recommending construction. The commission grants these "if appropriate," but the report doesn't say how appropriateness is judged. It'd be an interesting project to gather all of these through open records to figure out how often speculative contract jails have been recommended and on what basis.

Santa lynched after Ho-Ho-Holdup, a suggestion how to punish everyday police abuses, Abbott's Xmas pardons add insult to injury, and other stories

Grits woke up Christmas morning feeling better than I have any time since last Thursday, when someone slit your correspondent's throat from ear to Adam's apple. That it was, in fact, a surgeon who did this to remove a sizable, cancerous lump should probably absolve him from blame. But the recovery has been a little rough, so in my mind I'm blaming him anyway and telling people who ask that I was attacked by pirates. ;)

Since then, I haven't had much strength for blogging, or even reading, and the missus has taken over holiday cooking duties for the day. But since I'm up and about this a.m., the kids aren't here till noon, and I have some energy, let's clear some browser tabs of items which have accumulated while I've been down:

Abbott's paltry pardons a diminution of executive responsibilities
Gov. Greg Abbott issued seven pardons for ancient, low-level offenses this week. The case details are unimportant. It's a meaningless, cynical maneuver adding insult to the injury of governors largely abandoning their constitutional obligation to serve as a check on excessive sentences and mass incarceration. In the 19th and early 20th centuries, Texas governors took this responsibility much more seriously, pardoning between 6-12% of all current prisoners every year! That's how the folks who wrote the constitution intended clemency to work. Pardoning a handful of petty misdemeanors from decades ago amounts to a timid, pointless debasement of executive clemency authority.

Elderly inmates only a symptom of overincarceration
Grits agrees Texas incarcerates too many elderly prisoners who are no real threat to public safety. But we need parole reform more broadly than just aimed at the elderly and sick; the whole system needs an overhaul.

Big D's Case Management Blues
Dallas County has spent more than $10 million developing court software that's turned out to be worthless and has had to revert to software from the 1980s. And it's not the first time.

Politicize homelessness and you own the issue, sometimes literally
From a strategic, political perspective, the idea that Governor Greg Abbott now operates his own homeless encampment in Austin, for which he possesses no funding nor management expertise, makes me laugh every time I think about it. But for the homeless folk affected, it's no laughing matter.  Gus Bova from the Texas Observer visited some of them and relayed grim stories of extreme poverty during the holiday season. That's the problem with GOP political strategists choosing to politicize homelessness by pretending law enforcement can solve the problems associated with it; real people with real lives are affected and all the preening and posturing won't ever mean nearly as much to those folks as a place to live.

Jail suicides and the politics of unrealistic expectations
Jail suicides increased in Texas last year, reported the Associated Press. But it's weird to me the writer framed the issue in terms of the alleged failure of the Sandra Bland Act. I don't think anybody who knew the details of what finally passed in the compromised version thought that the bill would automatically reduce them. We mostly got more documentation and investigations conducted after the fact. I agree Texas needs to do more, but the law accomplished quite a few things on several different fronts (see here for details on its effect on Texas' racial profiling data). Calling it a failure on this basis amounts to an uneducated jab, not a serious criticism of the law.

The quickest way to reduce prison suicides
By contrast, in Texas prisons, the number of suicides declined last year, but Keri Blakinger reported that's because they changed the definition and so are counting different things.

Police sued over death in Beaumont
See a report from the Texas Monitor on a new wrongful death lawsuit against the Beaumont PD.

A suggestion for punishing everyday police abuses
I love this idea for a constitutional small claims court tied to police bonuses. Excellent, incentive-laden proposal that IMO should become part of every city's negotiated police contract.

Why more DNA exonerations don't happen regardless of innocence
Amazing to me that 13 states have never had a DNA exoneration. This article accurately identifies why: 1) crappy evidence preservation practices, 2) unreasonably high standards for proving innocence, and 3) judges and prosecutors more worried about preserving their reputations than seeking justice.

Santa lynched after Ho-Ho-Holdup: Cisco, 1927
The Texan has the story of a deadly, failed 1927 bank robbery in Cisco two days before Christmas in which the robbers wore Santa suits. One of them was lynched following an escape attempt by a mob of 1,000 people, a rare example of a white man suffering such a fate. Correction: A commenter provided data indicating about a quarter of lynchings from 1882-1968 were of white people. I stand corrected.

***

That's all I've got in me today, folks. Till next time, have a happy holiday. And take care of each other.

Reasonably Suspicious Christmas episode: The Grinch story "if the Whos were us," plus the policy failure of high fines, examining recent innocence cases, and reviewing Texas' biggest criminal-justice stories of 2019

Here's the December 2019 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by me and our good friend Mandy Marzullo, of the Texas Defender Service. This month includes a special Christmas poem in the intro! Enjoy:

Here's what's on deck this month:

Intro

• Christmas Poem: "If The Whos Were Us"

Top Stories

• Why high fines and fees are a plague on the criminal-justice system.

Musical interlude: Debtors Prison Blues

• What recent Texas innocent cases tell us about needed policy reforms.

Year in Review: Fill in the Blank

• Bail reform in Harris County
• Abolition of the Driver Responsibility surcharge
• Texas Legislature unintentionally decriminalizes marijuana
• More prosecutors going after cops in police shootings

The Last Hurrah

• Care for seniors makes up half of Texas prison health budget
• Prison supervisor busted in contraband scheme
• How Potter County lost ALL its historic criminal-court data to a ransomware attack and what it means

You can listen to the podcast here or subscribe on iTunes, Google Play, or SoundCloud. As always, I'll order a transcript and post it below the jump when it's ready.

Monday link roundup

Here are a few odds and ends that deserve readers' attention:

• From the Baker Institute at Rice: Drug Treatment Gaps in Harris County, Texas
• Texas Tribune: Federal judge aims to get to the bottom of TDCJ heat-litigation lies
• Dallas Observer: Sending social workers to mental-health 911 calls reduces emergency room stays. Readers may recall that Austin funded a similar, not-yet-implemented program in its current budget.
• CNN: Oregon police officers can no longer seek consent searches without reasonable suspicion. Here's the relevant Oregon Supreme Court opinion.

Texas should raze last, large youth prisons in light of high sex-victimization rates

The Bureau of Justice Statistics came out with a new report last week declaring that one in seven youth prison inmates in Texas are sexually assaulted while in state custody, see the Texas Observer's coverage. This confirms based on data what legislators have already heard via anecdote: Texas juvenile prisons are unsafe for the youth incarcerated in them.

The Observer did a good job fleshing out the reasons, which will be familiar to (very) long-time Grits readers: Texas continues to rely on larger facilities instead of following bipartisan, national best practices of using smaller, better-staffed facilities closer to the urban areas where the youths' families live.

It was solely at those larger units that the sex-assault problem was so severe: Four facilities reported that double-digit percentages of inmates in their care said they'd been sexually victimized.

• Evins Unit: 13.5%
• Gainesville: 16.0%
• McLennan Co.: 16.1%
• Ron Jackson Unit: 14.0%

Some of this has been reported in the local press but this report reminds us that the problem has systemic roots.

By contrast, nationally, the new survey found that sexual victimization reported in juvenile justice facilities declined. The state-run Texas units were among a handful of outliers.

In addition to high rates of violence and sexual victimization, employee turnover at Texas youth prisons are the highest at any state agency, and employees describe a nightmarish work environment.

Over the last decade, Texas has closed most of its youth prisons, regular readers will recall, with youth-inmate populations down to 786 from more than 5,000 kids 12 years ago when the youth decarceration effort began.

Community-based responses are more expensive per kid, but more effective and less costly in the long run. And they aren't prone to large proportions of youth in their care being sexually victimized.

It's worth mentioning, since Texas began decarcerating youth prisons, reducing those held by the state by more than 80 percent, juvenile crime by all measures has continued to decline. Even though a handful of those released committed serious offenses, juvenile-crime rates plummeted and the state overall became a safer place.

Since Nate Blakeslee first broke the story that Texas Youth Commission staff were molesting youth back in 2007,  Texas has tried everything to reduce sexual victimization rates at youth prisons except to follow expert advice to abandon large youth prisons altogether. In 2007 when these allegations first arose and the Legislature intervened, they created a "blue ribbon panel" which recommended closing these large facilities and shifting to smaller, community-based settings. Red and blue states alike have followed that approach, but the Texas Legislature balked, insisting on keeping a few large units open, even as their numbers dwindled. That's where the youth are allegedly being sexually victimized.

To make matters worse, legislative leadership have used allegations of violence and high sexual-victimization rates at these facilities as an excuse not to "raise the age" of adult criminal responsibility from 17 to 18, insisting that youth prisons are already out of control and couldn't handle the influx. Despite bipartisan agreement that 17-year olds shouldn't be incarcerated as adults, Texas remains one of only three states that does so.

Think about that: legislative leaders have both insisted "We won't close dangerous youth prisons," and also, "As long as youth prisons are dangerous, we can't raise the age." That's a strange, self-imposed Catch 22, but a convenient one if you're somebody who just thinks 17-year olds should be incarcerated as adults.

Grits understands the raise-the-age transition could be bumpy and won't be cost-free. In the long run, however, the success of Texas' juvenile-decarceration experiment over the last decade makes me sanguine it can work. But only if Texas legislators embrace juvenile-detention best practices and abandon these large, anachronistic facilities.

MORE: From the Waco Tribune-Herald.

The iceberg's tip: CA man walks free bc of DNA-mixture SNAFU

It's perhaps a testament to the reduction in size of and competition among MSM outlets that nobody has yet covered the problems with DNA-mixture forensics raised by federal District Judge Janet Neff of Michigan's Western District* (discussed by Grits here and on the latest Reasonably Suspicious podcast). That must change; some full-time reporter(s) must step up. These issues deserve high-level coverage and national context that this humble, regional blog cannot provide.

Once you begin to pay attention, these cases are cropping up everywhere. In San Diego, we have the case of Flamencio Dominguez. In 2011, he was convicted of a 2008 murder based on DNA mixture evidence and sentenced to 50 years, reported the San Diego Union Tribune. Months before the trial, the crime lab realized the mathematics behind their old DNA-mixture analyses used an invalid baseline. They decided to abandon their old approach and switch to "probabilistic genotyping" instead.

(Similarly, in Texas in 2015, crime labs discovered every lab in the state was using erroneous math in DNA-mixture analyses in ways that risked falsely accusing innocent people, see coverage here and here. In Travis County alone, 11 cases were found where suspect matches changed to "inconclusive." Our crime labs, too, were advised to switch to probabilistic genotyping.)

When the baseline issue was corrected in Mr. Dominguez's case, the new algorithm went from accusing him to "inconclusive." But prosecutors did not tell Mr. Dominguez's counsel about the change. The defendant was convicted based on what now is admittedly erroneous DNA math, and his lawyer wasn't aware of the flawed DNA-mixture protocols until six years later.

After his lawyer found out about the inaccurate math, Dominguez prevailed in 2017 on a habeas corpus claim and was released from prison. But prosecutors decided to try him again, this time using a tool from a company called STR-Mix based on probabilistic genotyping. That was the forensic tool Judge Neff evaluated in Michigan. The bottom-line assessment in Judge Neff's opinion was that:

The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if [the defendant] is a contributor to the DNA on the gun than if he is not— is not really evidence at all. It is a combination of forensic DNA techniques, mathematical theory, statistical methods (including Monte Carlo-Markov Chain modeling, as in the Monte Carlo gambling venue), decisional theory, computer algorithms, interpretation, and subjective opinions that cannot in the circumstances of this case be said to be a reliable sum of its parts. Our system of justice requires more.

Courts in California were robbed of their chance to decide whether they agree. San Diego prosecutors essentially let Dominguez plea out to time served because the company STR-Mix would not allow the state courts to examine their source code without a slew of non-disclosure agreements the court deemed inappropriate, reported the Union-Tribune:

court records filed last month show that the company wanted Speredelozzi and his experts to sign a restrictive non-disclosure agreement and abide by other restrictions. on Oct. 23 [Judge Charles G.] Rogers declined to require the [defendant's] lawyer sign the agreement, and warned that if the company failed to comply, he might exclude the DNA evidence all together from the trial. On Nov. 7 a lawyer for the company wrote to Speredelozzi they would not provide the crucial source code for the software without the non-disclosure agreement.

So the company chose to let the case against an alleged murderer fall apart rather than let California courts review its source code. But Judge Neff in Michigan already had experts do just that! Is the company afraid other courts may reach similar conclusions and disallow or limit their product's use? The execs at STR-Mix must really be feeling the heat!

One also wonders if the good folks at the Houston Forensic Science Center, which late last month announced they would begin using the STR-Mix software, might now begin to consider that decision ill-timed? Certainly, after Judge Neff's decision, one would question using it for either mixtures involving more than three sources or three-source mixtures where the target makes up less than 20 percent of the sample. Lots of trace-DNA samples are submitted to crime labs that don't meet those criteria!

On the November episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed Judge Neff's opinion and its implications for crime labs interpreting DNA mixture evidence. I pulled out that segment as a stand-alone; you can listen to it here:

The news about Mr. Dominguez's case hadn't yet come out, so we didn't talk about that. But the segment discussed some of the recent history of ever-changing DNA-mixture math and explored the reasons underlying Judge Neff's decision.

IMO this is going to become a significant story with national and international implications (everybody relies on the same science) and lots of twists and turns over the next few years. We need some journalists with chops to jump on this coverage on the front end. Wrongful convictions have gone unchallenged simply because not one reporter in the whole country is covering this beat.

For more background on this controversy, see:

• National Institute of Standards and Technology: "DNA Mixtures: A Forensic Science Explainer" (April 2019)
• Ryan Forensic: "What in the world is going on with forensic DNA mixture analysis?" (April 2017)

*Except Techdirt, which picked the item up from Grits.

Greatest American prison songs a fine antidote to sappy seasonal fare

In Grits' household, the missus launches Christmas music rather aggressively beginning the day after Thanksgiving every year. This year, just one week in, Grits already longed for a break in genre.

Luckily, back in August on the Reasonably Suspicious podcast, Texas Monthly's Mike Hall and I came up with the perfect antidote, ranking the top 5 American prison songs of all time while discussing numerous candidates for that esteemed canon.

Go here for a YouTube playlist of all the songs we discussed before paring down the list. I discovered today it makes for an excellent antidote to the sappy songs of the season. Perhaps you'll enjoy it, too.

Though Mike and I might quibble over which deserves top billing (I'd say "Midnight Special," he prefers "Ain't no more cane ..."), our top agreed-upon five were:

• Ain't No More Cane on the Brazos
• Midnight Special
• Folsom Prison Blues
• Black Steel in the Hour of Chaos
• Jailhouse Rock

I pulled out that segment ranking the greatest American prison songs as a stand-alone, you can listen to it here:


Find a transcript of Mike's and my conversation below the jump:

Public policy responses to informant abuses

 Two informant related stories recall a raft of snitching coverage on this blog, now mostly more than a decade ago.

First, our pal Pam Colloff has the story of a Texas man turned professional snitch, including four death penalty cases, on the NY Times magazine cover this Sunday. Pam has created a newsletter associated with the 13.5k-word story, sign up to receive followups and updates.

Also, Keri Blakinger tweeted out documents showing that Officer Gerald Goines told Houston PD investigators in February that there was no confidential informant in the Hardin Street case, as he had declared in an affidavit justifying a no-knock warrant. Two homeowners died and four officers, including Goines himself, were injured because of those lies.

Long-time readers may recall that Grits extensively covered informant-related policy issues for several years, and in 2006 offered these top-line reform suggestions:

Corroboration: In the Bible, both Mosaic Law and New Testament writings demand that no one be judged guilty of a crime on the uncorroborated testimony of a single witness. Without going that far (though I'm willing if the Legislature is), it makes real sense to require corroboration for all testimony by witnesses who receive incentives, especially cash or reduced sentences for their own crimes. (After innocent people were framed in drug stings in Tulia and Hearne, the Texas Legislature in 2001 enacted a requirement for corroborating informant testimony in drug cases.) 

Reliability hearings: In civil cases, judges decide in reliability hearings whether expert witnesses with long lists of credentials may testify as experts. New statutes should require similar pretrial reliability hearings to ensure a judge deems an informant credible before a jury hears their testimony. 

Supervisory controls: All conversations between police and informants should be recorded. Alternatively, officers should only interview informants in pairs. Informants who will be used on more than one case should be interviewed by a supervisor, and more detailed statistical and other documentation about informants and their activities should be required. More supervisory check-offs on payments to confidential informants are needed, and payments above a de minimus amount should only be made in the presence of supervisors. These ideas could all be implemented administratively at the department level without changing the law. 

Right to counsel: Informant agreements are essentially informal plea bargains. Informants whose culpability for their own crimes will be reduced or prosecution avoided should routinely be afforded a right to an attorney before entering into a "snitch" agreement, just as though they'd been charged with a crime. These "contracts" are generally one-sided and may even obligate informants to commit crimes in which they wouldn't otherwise engage.

Texas has done more than many states to rein in informant abuses. In 2001, Texas required corroboration for drug informant testimony to secure a conviction. In 2009, the corroboration requirement was extended to jailhouse informants. In 2017, the Legislature required prosecutors to track informant use more closely and to disclose informants' histories to the defense. Other reforms, like then-Sen. Rodney Ellis' SB 260 from 2009, which would have required reliability hearings for incentivized informants, never got off the ground.

As far as this blog goes, once I was no longer employed to work on police accountability, Grits moved on to other topics (e.g., innocence, and later, decarceration). But at one time, Grits wrote quite a lot about informants. See prior, related coverage below the jump:

Catching up on recent Texas exonerations

Grits checked in this afternoon at the National Exoneration Registry and thought we should mention some recent Texas exonerations. Just last month:

• Adrienne August was convicted of burglary in 2018 based on an impermissibly suggestive eyewitness identification process and exonerated in November.
• In Quintin Alonzo's case, exculpatory evidence withheld by the prosecution in Dallas back in 2003 turned out to be decisive.

Meanwhile, in October, the four men convicted in 2014 of a murder committed in the early 1990s were formally added to the exoneration registry:

• James Long
• Richard Kussmaul
• Michael Shelton, and
• James Pitts, Jr.

Finally, Lydell Grant's name isn't on the registry yet, but it should be soon enough after he was released on bond last week pending a final decision from the Texas Court of Criminal Appeals. DNA testing ruled him out as a potential suspect in a 2010 capital murder for which he was falsely convicted.

Congratulations to everyone involved in all these cases.

Travis County is Fine-and-Fee Central; old, sick inmates driving up TX prison health costs; junk science, wrongful convictions, and police-union bullies all still with us, and other stories

Here are a few odds and ends that merit readers' attention:

Why does Travis County assess so many fines?
Travis County stood out as an egregious outlier in a Brennan Center study on fines and fees focused on ten counties in three states. Assessed per-capita fines and fees were $32.30 in Travis County compared to $12.30 in El Paso, $8 in Santa Fe, and $4 in Miami-Dade County. This report casts light on one of the most obscure and little-studies aspect of the Texas justice system. Grits doesn't have resources to replicate this research for other Texas counties, but I wish someone would. We'd learn a lot, I bet. In particular, one imagines we'd learn how much harm a small number of malicious or incompetent judges, (im)properly placed, can do when left to their own devices what amounts to a judicial backwater for decades on end. See the Texas Observer's coverage.

Older, sicker prisoners driving Texas prison health care costs
Increased medical costs for older inmates is among the biggest reasons Texas prison budgets have never gone down despite closing eight units over the last decade, the Texas Tribune reported before the holiday.

The state spent over $750 million on prison health care during the 2019 fiscal year, a 53% increase from seven years earlier, when that cost was less than $500 million. 

The main reason, according to experts and officials: an older, sicker prison population.
While the total prison population declined by 3%, the number of inmates ages 55 and older increased by 65%, according to Texas Department of Criminal Justice data. 

Inmates over 55 account for about one-eighth of the population but nearly one-half of the system’s hospitalization costs, according to prison officials.

Grits has written about this population recently, regular readers will recall, suggesting revamped parole priorities as the only realistic way to confront the problem.

Newsflash: Police unions behave like bullies
When police unions subject professional athletes to the same, abusive behavior they routinely dispense toward #cjreform advocates, suddenly the media notices. smh. Some of us have been slugging it out with these guys for many years. It was never news before!

Junk science of the week
Voice print analysis. It's been more than ten years since the National Academy of Science published its ground breaking analysis of forensic-science flaws, and it's remarkable how little has been done to rectify the problems they identified.

Journalism and wrongful convictions
Grits is looking forward to attending an event on Wednesday in Houston on journalism and wrongful convictions - a fundraiser for Houston Interfaith featuring Pam Colloff and Nicole Casarez. Grits also is scheduled to meet DA-candidate Carvana Cloud for a brief chat while I'm in H-Town; she and Audia Jones are challenging incumbent Kim Ogg in the primary. In related DA-race news, here's an interview with Audia Jones from The Appeal.