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.

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?