Sunday, April 05, 2020

Blakinger: Myriad pandemic updates, conflicting accounts on intra-prison transports, and one happy story to cheer you up

Our pal Keri Blakinger offered up another excellent and much-appreciated email update while Grits' blog content ramps back up. I couldn't be more grateful, thanks Keri!

Hey Grits,

Guess what I had for breakfast? Actual grits. For the first time in my life. I always skipped grits days in the prison mess hall but now I bought a bunch for my pandemic pantry. They are surprisingly good!

I was pleased to see your update and welcome your imminent return to the blogosphere! Here is one more get well and come back soon email and update.

As I’m sure you’ve noticed, the world is falling apart. So I’ve included eight depressing virus-related items, one longer discussion of an uncovered issue, and one short happy thing!! You have to make it to the end for the happy thing, no cheating!

Depressing Items
  1. As coronavirus began making its way across the country a few weeks ago, people suddenly realized: Prisons literally banned a lot of basic disease prevention measures. With a lot of pressure some of this has changed, but generally, as of a few weeks ago prisons across the country banned alcohol-based hand sanitizer, made social distancing impossible, and did not allow face masks. (Relatedly, this is a good Stateman story from a few weeks ago about supplies/prisons.) 
  2. There are a lot of aging and medically needy prisoners. This is a thing you have, of course, written about. And it came up a lot in the Pack litigation. But now it could be extremely problematic for the prisons and jails that are about to be overwhelmed with an illness that particularly puts medically compromised and aging populations at risk.
  3. Given all that, prisoners are suing TDCJ. The attorneys on the case are - of course! - Scott Medlock and Jeff Edwards. Their names should be familiar to Grits readers because of the air conditioning and hepatitis C lawsuits. FWIW, there are a lot of corona-related lawsuits out there across the country, but most of the ones I’ve seen seem to be about release. This one is about conditions; i.e., they’re asking for supplies like hand sanitizer and measures like social distancing, not arguing that they should get out.
  4. Speaking of release, everyone from experts to advocates to law enforcement officials to editorial boards has been advocating for jail and prison releases as a way to minimize the spread behind bars. The exact mechanics vary but the Galveston jail population is down 20 percent, Travis County is down some 600 people, and Dallas County - where 20 inmates have tested positive - is down a few hundred.
  5. In addition to f***ing up the jails, prisons, courts and every aspect of life in general, the coronavirus is f***ing up death. Specifically, the pandemic has forced Texas to postpone three execution dates and seems likely to force the state to call off more. It’s also slowing down litigation, investigations and clemency efforts, as well as delaying trials, hearings and argument. Maurice Chammah and I quote your beloved podcast co-host Amanda Marzullo in our coverage of it.
  6. The state is actively fighting to keep people in jail. First, Ken Paxton - himself a felony arrestee out on personal bond - filed to intervene and prevent the possible release on personal bond of 4,000 Harris County inmates who he said would be able to “roam freely and commit more crimes during the ongoing COVID-19 pandemic.” Then, the governor stepped in and did an executive order banning use of personal bond for anyone with any current or prior violent charge. The misdemeanor judges here in Harris County DNGAF. The felony courts are a little more complicated, as Gabrielle Banks and frenemy Sinjin report.
  7. Speaking of death, a lot of people are buying guns. Federal background checks for gun sales are way up over last month, Ted Oberg reported. This is exactly not at all surprising - though the fact that in Texas gun stores have stayed open and abortion clinics were closed seems to have raised some eyebrows.
  8. We all know short-term fluctuations in crime aren’t necessarily indicative of anything, but FWIW crime is down. I guess it’s hard to burglarize when everybody is at home. But at the same time, police are worried about seeing an increase in child abuse and domestic violence in the coming weeks. (In Dallas, the CBS affiliate already reported that happening more than two weeks ago, and Houston Public Media wrote about it this week.) I’m sure that’s only one of many awful, terrible things to come. Sorry this is the world you’re coming back to Grits, things got fucked up while you were gone!
The Longer Discussion:

The Texas prison system was slow to give employees access to protective gear and to halt inmate transfers, both practices that officers and advocates worried would create health risks during a pandemic that has already made its way into the state prison system. (As of Sunday evening, 18 inmates and 25 TDCJ staff had tested positive and some 3,700 prisoners were on medical restriction.)

Typically, hundreds of prisoners across the state are moved around every day, and there are more than 200 transport officers whose jobs are dedicated to making that happen. Sometimes the moves are for medical reasons, but other times it’s for court appearances, in preparation for release, to go to a unit that offers a specific type of program. The moves - often in the wee hours of the night - are stressful for everyone involved, and typically involve being chained to another person and loaded onto the white prison buses zipping up and down I-45.

But in the era of social distancing, that poses a clear safety risk - both because of the forced proximity and because of the possibility of spreading disease across the system through asymptomatic carriers. TDCJ - like every other prison system in the country - has already cut off visitation and programming, as well as attorney visits and in-person parole board interviews. But the continued need for prisoner transports has been a source of some tension. 


Even after officials in late March said the agency had stopped all but medical transports, officers repeatedly said that wasn’t true. At one point, it broke out into a little spat on Facebook between the Texas Correctional Institute Facebook page, a group run by TDCJ officers involved in a nonprofit by the same name.

“Texas prisons are breeding grounds for spreading COVID-19 with non medical chain buses running daily and staff lacking proper PPE such as N95 mask,” Texas Correctional Institute (TCI) posted on March 26, linking to an article titled: “Could Prison System Contribute To Increased Spread of COVID-19?”

“You are wrong,” spokesman Jeremy Desel wrote in response. “There are only medically necessary transfers occurring along with intake from unaffected counties. There are also significant supplies of N-95.”

The TCI main page and numerous individual posters disputed that, as did several officers I interviewed. 

Later, when I called Desel about it for a story, he clarified: Almost all transports had ceased, but sometimes people have to be moved from one unit to another to make room for other medical-related transports. The officers I’ve talked to still say that’s understating what’s going on, and point out that the agency is still accepting new intakes from counties and out-of-state. For example, officials in Louisiana confirmed sending two people to Texas last weekend - and both are now in custody of TDCJ. 

So it appears that even as the governor was drafting an last weekend’s executive order for any travelers from Louisiana self-quarantine, Texas was taking in new inmates freshly transported from a part of the country with one of the highest coronavirus infection rates in the country. It’s unclear if they’re parole violators or if they were picked up by a local law enforcement entity before ending up in TDCJ.

In recent days, officers have confirmed that internal transfers are down significantly, but the allegation that too many happened for too long is not unique to Texas: Across the country, other prison systems - particularly the BOP - were seemingly reluctant to slow down internal moves, facing some criticism for it.

Another source of criticism for prison officials in Texas and elsewhere has been the reluctance to allow the use of masks - both by prisoners and staff.  In the federal system, some units have issued them to prisoners and in New York they’ve (as of last week) been allowed for corrections staff and some prisoners. In Nebraska, last week the agency mandated masks for employees (and the prison director posed in one to make the point). Here, officers and union leaders voiced concerns over the past week or so about the lack of access to masks, which many report they have were not permitted to wear at work. 

“We’re already 4,800 officers short, we can’t afford a mass exodus because they’re not provided PPE,” AFSCME Texas Corrections president Jeff Ormsby told me. “The CDC is recommending a mask anywhere you go now, but we should be letting the staff wear them in prison.”

Late Sunday, that changed. Now, all medically restricted prisoners and all agency staff will be issued cloth masks. And, prisoners at the garment factories are making more. 

On the one hand, this raises questions as to whether the agency could have acted sooner - but on the other hand, it’s hard to fathom what a really successful intervention might look like in a prison system. In the absolute best case scenario, meaningful social distancing is just not possible in most housing areas, and so many of the other mitigation efforts pose significant logistical challenges. So what’s next? The union is pushing for a systemwide lockdown. So far, I haven't heard any official support for that idea but with the pace of this news cycle - who knows.

The Good Thing

PAM COLLOFF HAS A HAPPY STORY. Everybody hearts Pam, and I especially heart her right now for providing a rare, rare moment of hope when everything seems to be on fire. I could go on but you’ve read enough words by now so here it is: Joe Bryan got out. ENJOY. Congrats to Pam, and welcome home to Joe.

Health update

Hello, gentle readers, long time, no see.

Your correspondent is slowly emerging from throat-cancer treatment and will resume blogging shortly. Thanks to everyone who's reached out with well wishes and support, it's all much appreciated.

Since many people have asked, here's a quick health update. Grits must admit, this has been a rough stretch. The doctor in charge of my treatment announced my side effects fell on the "far right-hand tail of the bell curve" in terms of harshness, so I've spent most of the last couple of months feeling pretty awful. For five weeks I was continuously nauseous and am not at all yet back to 100%. In fact, I'm still getting all calories through a feeding tube and haven't had solid foods since February. As of this morning, I'm down about 60 pounds, reaching weight levels unseen since high school. But I can now indulge in sustained reading and sit at the computer for short stints, so with a little luck, blogging should re-emerge in earnest shortly.

Special shout outs go to Amandas Woog and Marzullo, Keri Blakinger, Margaret Robbins, Sukyi McMahon, and everyone at the Austin Justice Coalition who stepped up for me at a critical moment. (When paper products vanished from the shelves while I was coughing up mucous to the tune of 2 tissue boxes per day, they put word out and dropped off large volumes at the house. This made a huge difference and I'm eternally grateful for that.) Thanks also to my Just Liberty board of directors who were incredibly accommodating throughout my unanticipated absence. I couldn't be more grateful for their understanding and support. Finally, my wonderful wife, Kathy Mitchell, has been amazing throughout this ordeal; I can't imagine getting through this without her.

With American society more or less shut down over the coronavirus lately, this hasn't been a terrible time to find myself (completely) out of the loop. While I don't anticipate blogging will instantly ramp back up to prior levels over the next few weeks, I do feel well enough to begin to climb back in the saddle. So I wanted to poke my head up out of the bunker, provide this update, and re-set expectations going forward.

Finally, the brand of cancer from which I suffered is caused by the HPV virus, which in the 21st century can be prevented with a vaccine. Texas does not mandate this in schools' vaccine regimen, so if you have kids, make sure they receive it. I promise, you don't want your children to go through what I just did.

That's all the personal news and notes for now, but thanks again to everyone for your patience and support.

Saturday, February 29, 2020

TDCJ-mail crackdown, prisons remain understaffed, how TDCJ staffing policies brought African cuisine to East Texas, and other stories

Hey folks, your regular correspondent remains under the weather but our pal Keri Blakinger of the Marshall Project was kind enough to send me an email, with permission to publish, updating us on a range of Texas criminal justice stories. Since I can't eat solid foods at the moment, this is much better than a casserole! Here's her email in full. Thanks, Keri!

Hello hello,

Since you are not up to posting on your own, I am sending you a personalized round-up of criminal justice matters. I considered sending an actual pack of grits but I don’t know if you really like them. Then I considered a card but realized that we both speak the language of news and a personalized, curated news round-up would be better. Obviously, it’s prison-heavy because that’s what I focus on but there’s some other stuff at the bottom too. Yay!

How TDCJ understaffing spurred the rise of African cuisine in East Texas
As has been previously reported, there are a lot of African immigrants working in TDCJ. My friend Maurice wrote about this for The Marshall Project before. There are now so many that small East Texas prison towns like Palestine have African food stores, as the Palestine Herald-Press noted this week. I think this is a kinda interesting (and idk maybe somewhat unique?) example of the impacts of prisons on the local economy and businesses. Without TDCJ’s big footprint there, I imagine there would not be African food stores popping up in Anderson County.

Jail Mail Crackdown
Obvs you wrote about the planned rule changes at TDCJ before. As announced in January, the shift will limit what prisoners can receive in the mail (no greeting cards, no glitter, no glue, etc.) and drug dogs will start screening visitors. 

There’s a few updates to this, though. As of Friday, TDCJ said that there are now five approved third-party vendors for greeting cards. So families cannot buy their own cards at the store and sign them, and they cannot make their own cards and send them - but they can pay (probably more) for a third party vendor to send a greeting card to a prisoner on their behalf. The vendors haven’t been announced or publicized but should be made public shortly, per agency spokesman. 

The other major update is regarding the visitation policy. What they agency initially proposed was that If dogs alerted on a visitor as a suspected source of contraband two times, they’d be banned forever. In the final policy the board approved Tuesday, the agency changed that so you just get kicked out for that visitation cycle but not banned permanently. 

Also, fwiw, TDCJ says they’ve been using dogs to screen the officers since October. The dog teams apparently show up randomly at various units, but the agency said they could not tell me how often the dogs have been out, how many officers they’ve sniffed or how much contraband they have or haven’t found. In looking at the monthly disciplinary reports, there does not appear to be any significant uptick in the number of officers getting caught with contraband: 156 employees were written up for contraband in 2019, which is an average of 13 per month. Then they started with the dogs and in Oct., Nov, Dec. it was 15, 16, and 15 contraband cases each month. (For point of reference: There are more than 21,000 officers in the agency.)

You might notice these contraband numbers are different from what the spokesman has been giving reporters; he told both me and Michael Barajas that there were 53 officers caught with contraband last year. I called and asked and the spokesman is still trying to figure out the difference; the larger number could include write-ups regardless of outcome, or it could include all employees and not just officers. Still unclear. In any case, I have a story about the mail situation coming out Monday with The Marshall Project and Texas Monthly. Oh, also, Lance Lowry and I talked about this briefly at the end of my latest podcast

Staffing Still Spotty
As I mentioned above, there are more than 21,000 officers in TDCJ right now - which is still far fewer than the agency says it needs. In theory it could be ameliorated by the fact that the agency is going to be closing two more prisons this year. They say they’re not laying off any officers, so the move could (v slightly) help with staffing issues. BUT, the two units they’re closing (Jester 1 and Garza East) were both pretty well staffed. Jester 1 - a Fort Bend County unit that holds just over 300 prisoners - was 98 percent staffed as of the December staffing report. Garza East was 75 percent staffed. By comparison, the prisons as a whole are 82 percent staffed. Polunsky - where death row is - is 69 percent staffed. Clements is 56 percent staffed, and Connally is 50 percent. Those are all bigger units (2,000 to 4,000 inmates), so the understaffing in those places probably more concerning than, say, Dalhart where *only 39 percent* of the jobs are filled but capacity is only around 1,000. 

Attaching the report in case you want it. (See here.) You’ll notice some prisons are overstaffed - and TDCJ will ship extra officers around the state to plug gaps. It’s presumably not cheap, and the officers keep telling me how much they hate it because it throws such a wrench in their lives. 

Getting Sick in Prison
Given those staffing levels, I keep wondering how TDCJ would handle a disease outbreak or any other medical emergency, were one to occur. Currently, they're not doing anything different other than being on conference calls and listening to the CDC advice and such. They say they have disease protocols, which involve isolation, but could not immediately offer more detail.

"We've got no reason to believe that there's going to be any issue in the near future," the spokesman told me Friday, pointing out that there were no cases in Texas. A few hours later, there were. So I don’t know if this changes anything and will check back with them. 

Okay, so I was going to keep going with this round-up but I should go work on my book. So - in the spirit of your podcast’s rapid-fire segment at the end - here’s an expedited round-up. I briefly considered recording all this like a legit podcast but a. that is a lot of effort and b. I could not begin to imitate your Texas accent if I tried my hardest.

In other Texas news
Frenemy and former colleague Sinjin is continuing to follow the fall-out from the whole Harding Street botched raid thing, the court clerk in San Antonio pulled staff from one misdemeanor court (!?!), the Harris County jail is no longer charging to cut inmates’ finger nails, the Chronicle stopped using mugshot galleries, reporter Zach Despart meticulously chronicled some stuff allegedly going down in one Harris County constable office, and Harris County DA Kim Ogg is catching heat for using pro bono attorneys from big law firms to prosecute JP court cases. (Those are Class C misdemeanor cases and do not carry jail time - but that also means the defendants aren’t eligible for court-appointed attorneys. This sort of arrangement has been done elsewhere without fanfare, as Ogg’s office has pointed out to me. In fact, when Ogg started it there was no fanfare at all as the program started in September and wasn’t announced till February.)

Outside of Texas: If you haven’t watched the Zo, 100 PERCENT GO WATCH IT. It’s three 5-minute-ish videos, and so totally worth it. 

The Appeal did some court-watching in Florida and the results are really wild

And THIS is a great piece about Daubert, which is not pronounced doe-BEAR, a fact that blew my mind. Somehow I was trying to be fancy and French and that was wrong. 

That’s all for now. Get better soon, Grits. You’re one of like maybe five people I have tweet alerts set for, which is high praise from a Twitter-addicted millennial such as myself.

-Keri

Thursday, February 20, 2020

A brief hiatus

I'd mentioned earlier that your correspondent recently had a cancer diagnosis and a lump removed from my neck in December, leaving an ear-to-Adam's-apple scar that my granddaughter announced was reminiscent of Nearly Headless Nick from the Harry-Potter series.

I'm now in the midst of radiation therapy and, in the last week, it has knocked me down significantly more than I anticipated. (In particular, my 1/8-ton frame was not quite ready for the abrupt, no-solid-food switch!) As such, I'm going to suspend the blog until this is finished and I'm feeling better, hopefully in 5-6 weeks. No podcast this month; we'll see about March. It's possible I'll stick my head back in here a time or two if my energy improves or something urgent comes up. Otherwise, I'm focused on my health and perhaps catching up on reading and Netflix binging. Haven't had the energy for much else.

Wish me luck, folks! I'll report back in a few weeks.

Wednesday, February 12, 2020

What the jury didn't hear, against SWAT raids for routine search warrants, bail explainers, courthouse architecture, and other stories

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

Margaret Moore, Rosa Jimenez, and what the jury didn't hear
Weird comments from Travis County DA Margaret Moore on the Rosa Jimenez case in The Appeal: “There is an ultimate fact question that was resolved by the 12 men and women who actually saw all the evidence and heard opinion testimony,” Moore told The Appeal. “Everything after that is opinion by people who were not in that courtroom.” But here's the thing: The reason four judges have now said Jimenez is likely innocent and should be released is that the jury heard false, un-rebutted expert testimony that biased their view. When judges looked at all the same evidence, and also evidence to which the jury wasn't privy rebutting junk science in the case, they said Rosa didn't do it. So jurors didn't consider all the evidence. That seems disingenuous. (See prior Grits coverage, and listen to a segment on the case on the latest Reasonably Suspicious podcast, plus coverage from a Travis DA Democratic candidates forum over the weekend.)

Use of SWAT raids for routine search warrants creates needless risk
The practice of using SWAT tactics to execute routine search warrants continues to result in unnecessary deaths. A Waller County man was killed in a SWAT raid by police who wanted to seize a computer (someone else's) over alleged possession of child pornography. Can it really require a no-knock raid to seize a computer? This was unnecessary; the man's death was much more a predictable policy failure than it was an accident.

Fewer inmates beaten up more often at TDCJ
Recent inmate deaths at the hands of guards in Texas prisons highlights that use of force by staff has increased dramatically in recent years, reported the Texas Tribune, even as the number of inmates supervised declined and eight prison units closed.

Whistleblower gaining momentum in Sheriff's race
Liz Donegan, the Austin PD whistleblower who was removed as head of that agency's Sex Crimes unit because she wouldn't improperly classify cases as "cleared," is now running for Travis County Sheriff and, remarkably, earned the Austin Statesman's endorsement. Although Donegan was removed from her Sex Crimes post during Chief Art Acevedo's tenure, current Chief Bryan Manley earned ownership of the topic by blaming data errors on victims when the story came out. Him having her as a Sheriff-to-Chief peer would be deliciously awkward.

Bail explainers
Egged on by police, the Dallas Morning News has been blaming Dallas County DA John Creuzot for failures in the legacy bail system. But when they tried to do that in front of the City Council, staff gave everyone a primer on who is in charge of setting bail in Texas: Judges, not prosecutors. In Harris County, a judge demanded an explanation from prosecutors on why they blamed her in the press for a violent criminal's release when they'd never informed her of the details. Meanwhile, at the Paris News (TX, not France), a local reporter offered better explanatory coverage of the bail system than the Dallas News has yet.

Travis County judges dip toes in bail-reform waters
Travis County judges are saying they want to implement bail reform, including requiring defense attorneys at magistration, despite opposition from Travis County DA Margaret Moore. But the Texas Fair Defense Project and their allies say there would still be too much delay before release under the new proposal, and called for changes to the draft. Still, judges taking leadership on this is heartening news. They'd mostly dug in their heels before now.

No extra prosecutors for you, Kim Ogg
For the Harris County Commissioners Court, turning down District Attorney Kim Ogg when she asks for more prosecutors has become habit forming.

Houston crime lab to use disputed DNA mixture software
The Houston Forensic Science Center has begun using STR-Mix software for analyzing DNA mixture evidence. But last fall, a federal district judge in Michigan excluded such software from evidence after a "Daubert" hearing. DNA mixture analyses have been fraught with error for many years. Under the Michigan judge's ruling, based on recommendations from President Obama's forensics commission, STR-Mix software may be used when a) there are no more than three contributors and b) when DNA from the target makes up at least 20 percent of the sample. No word if HFSC intends to abide by those limitations.

Cherry picking data for scary headlines
The Austin Statesman issued a story with the headline: "Violent crimes with homeless suspects, victims went up in 2019, data show." The big news was that reported violent-crime incidents in the city increased by one percent last year, with a small increase attributable to the city's homeless population. What they didn't say was that Austin's population has been growing by 2-3% annually, so the rate likely decreased! Austinites were less likely to be victimized by violent crime last year than the year before. Why wasn't that the headline?

Defending Austin's federal courthouse architecture
The Department of Justice wants all federal courthouses to look like Roman temples and specifically criticized Austin's federal courthouse as an example of what they don't want. But I really like the federal courthouse in Austin. I was there recently for a hearing in the Rosa Jimenez case, then later to retrieve audio from the clerk. It's incredibly well-designed, with much more natural light and customer-friendly arrangement than most of them. Here's more on the Austin courthouse's architectural approach.

Fines and fees
Two essays on fines and fees for you:
'Doing justice isn't left, it's right'
The Texas Public Policy Foundation's Marc Levin thinks progressive prosecutors are mis-labeled.

Thursday, February 06, 2020

Misbehaving cops concealed, afforded leniency; prosecutors' abuse of power criticized; Travis County hires Public Defender, and other stories

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

Many agencies won't disclose police misconduct to Harris DA
About a quarter of Harris County law enforcement agencies refuse to hand over information about problem police officers to the District Attorney's office, reported Keri Blakinger, arising from the grave to issue one last Houston Chronicle story. The biggest non-participating agency is the Harris County Sheriff, along with all the constables' offices, all of whom declined to enter a memorandum of understanding with the DA's office on advice of the county attorney. Of participating agencies:
As of February, that so-called “disclosure database” included 1,461 people, 546 of whom are current members of law enforcement. More than 40 percent of those — 227 — were with the Houston Police Department, which Ogg said is responsible for about 80 percent of the cases filed.
El Paso cop gets probation for on-duty rape
A former police officer in El Paso was sentenced to a 10-year probated sentence after sexually assaulting a domesting violence victim he met on the job. The jury went with the lenient sentence after the officer's father and defense attorney argued that TDCJ couldn't keep him safe and sending a police officer there could be a "death sentence." Are there any examples of police officers sentenced to TDCJ being murdered? I can't recall one.

Prosecutor abusing power to punish uppity defense counsel
In San Angelo, the Tom Green County District Attorney is refusing to negotiate pleas for her clients because, in one client's case, she argued that plea bargaining is unconstitutional.
Stone was forced to give up [more than 10 clients] as a result of a targeted policy devised by Tom Green County prosecutors, according to a federal lawsuit filed in October. The complaint names district attorneys Allison Palmer and John Best and accuses their office of silencing Stone’s First Amendment views and retaliating against her for making the argument in a separate appeals case that plea bargains are unconstitutional.
The Tom Green County DA's policy targeting a lone defense attorney for being too aggressive is “highly unusual and made up out of whole cloth," an expert told the Washington Post. “But given the vast discretion we impose on prosecutors — even if it raises eyebrows — I would be surprised if a judge prevented” it.

Resistance in Big D to ↓ phone rates at county jail
Dallas County is balking at reducing charges for inmate phone calls. Commissoner John Wiley Price objected that the county would lose revenue from the calls and that the Sheriff would need extra staffing to facilitate video chats with inmates via iPad (in person visits would still be allowed as before). Meanwhile, the Texas Organizing Project objected to any charges for calls, insisting they should be free. The vote was delayed for two weeks but as the County Judge and 2 commissioners voiced support for the rate reductions, there's still a good chance it will go through.

Travis County hires Public Defender
Travis County has hired the first leader of its new public defender office: Adeola Ogunkeyede, a University of Virginia professor and former attorney at the Bronx Defenders. Grits recently heard her interviewed along with the other finalist for the position and am excited about the direction in which the office appears to be heading.

Travis DA's handling of sex-assault cases criticized
How the Travis County DA's Office handles sex-assault case has become the most-discussed issue in the Democratic primary. Sarah Marloff at the Austin Chronicle reviewed the controversy that's roiling the District Attorney's office. Grits had earlier called this issue "easily the most damaging complaint against her."

Alleged staff-on-staff sexual assault at Stiles Unit

A recent lawsuit alleged three prison guards at the Stiles Unit in Beaumont sexually assaulted a female colleague, The Appeal reported in an item I'd missed from December. The three were indicted last year for unlawful restraint of a public servant and official oppression. The victim's attorney said "he interviewed other female correctional officers at Stiles while investigating Carver’s case, and they told him that sexual harassment was routine and that they were ignored when they filed grievances."

TDCJ spokesman Jeremy Desel told The Appeal that in 2018, "there were 52 alleged incidents of sexual assault and 47 alleged incidents of improper sexual activity with persons in custody by TDCJ staff; one report in each category came from Stiles." I see where that data comes from, but I also see seemingly conflicting numbers reported by the agency.

According to the agency's 2018 Prison Rape Elimination Act report, there were 775 allegations of staff on offender sexual abuse, sexual harassment, or voyeurism in 2018. "Of the 541 sexual abuse allegations, 74 (13.6%) were identified by OIG as meeting the elements of the Texas Penal Code for Sexual Assault, Aggravated Sexual Assault, or Improper Sexual Activity with a Person in Custody." However, only 20 were ruled "substantiated." Most of the 775 cases reported were dubbed unsubstantiated or unfounded.

I don't know how to square data from PREA and the Ombudsman report Desel cited. 

Nationally, allegations of sexual abuse by staff are more common than allegations against inmates, with about 6% being dubbed substantiated. Readers will recall Texas youth prisons allegedly have high levels of staff-on-inmate sexual assaults. But male guards assaulting female guards in groups is a whole other kettle of fish. Anyone else surely would be prosecuted for sexual assault, not unlawful restraint and official oppression.

That sort of hostile work environment could also play a big role in why the agency has trouble retaining female staff. 

RELATED: #MeToo among Texas women prison guards.

Wednesday, February 05, 2020

Corrupt Houston drug cop allegedly set up innocent people, bail reform and mental illness, sensory penalties, and other stories

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

Conviction overturned based on Gerald Goines testimony
A man allegedly set up in a drug case by former Houston PD narcotics officer Gerald Goines has been declared actually innocent by a local judge. The Texas Court of Criminal Appeals still must approve those findings, but regardless, with Goines having investigated 14,000 different cases over the years, the implications are huge once convictions start to be overturned. Readers will recall Goines fabricated an informant to justify a deadly, botched no-knock raid that left the (innocent) residents and their dog dead and four officers injured. This case is definitely only the beginning. Now that the red pill has been swallowed, there's no telling how deep the rabbit hole goes.

Bodycam footage emerges of needless tazing that got 2 Austin PD cops fired
Bodycam footage corroborates Austin PD's claim that two police officers lied about a tazing incident that led to their firing, reported KXAN-TV, after my former colleague Chris Harris obtained the footage from the city. Proud of you, Chris. A jury last year declined to convict the two men, but Austin Chief Bryan Manley fired them anyway, declaring their actions were “inappropriate, unecessary, objectively unreasonable and a violation of department policy.”

Bail reform and mental illness
Tony Fabelo has published a new analysis of mental health and the justice system, homing in on pretrial detention. He suggests ways to streamline screening arrestees for mental illness to make it easier to get them services and/or released pending trial. Grits may have more to say on this later when I've read it in more detail.

Legislators urge justice in Rosa Jimenez case
Texas House members from Travis County sent a letter to District Attorney Margaret Moore asking her to "ensure that justice and basic humanity carry the day" in the Rosa Jimenez. Moore responded by leaning on the forensics that courts have now discredited and reiterating that the Court of Criminal Appeals had denied Rosa's writ, as though Sharon Keller and the Government-Always-Wins faction voting against her proves her guilt. Ask Joe Bryan about that.

Arrests vs. jail admissions
Today, nearly everyone who is arrested ends up in the county jail. Remarkably, a quarter century ago, three in ten people who were arrested did not. Why? According to the Vera Institute:
recent scholarship highlights that people are being admitted to jail for reasons that may not have warranted an arrest, including parole violations, bench warrants, failure to pay fines or fees, and failure to appear in court. For example, one report found that in some jurisdictions, 20 percent of incarcerated people are serving time for failing to pay criminal justice debts.
How conservative prosecutors should consider sentencing
The R Street Institute put out a policy brief describing "How conservatives can make prosecution more productive." For example, on criminal sentencing, the author says conservative prosecutors should take more factors should be taken into consideration:
In addition to expressing societal outrage at the defendant’s conduct or the harm they caused, a sentence ought to reflect its costs to society and its ability to shape a defendant’s future behavior for the better. Cost considerations include those of the sentence itself: for example, does it make sense to spend tens of thousands of dollars to incarcerate someone for the theft of a few hundred dollars of merchandise? It ought to also include how a sentence might undermine a defendant’s ability to productively reenter the workforce and society: will incarceration or onerous probationary conditions result in a defendant losing his job and with it his ability to pay victim restitution or support a family?
DNA mixture exoneration
Here's an exoneration out of Georgia based on correcting flawed interpretations of DNA mixture evidence. Grits is increasingly convinced the DNA-mixture mess is a much bigger deal than anyone in the justice system is acknowledging yet.

Sensory Penalties
I'm following a Twitter feed called Sensory Penalties, promoting a forthcoming book, that keeps pointing out interesting stuff. E.g., check out this beautifully written essay out of the U.K. on the sounds of prison, which is a fascinating topic to deeply consider. (The author, Kate Herrity, published her Ph.D. thesis on the subject of prison soundscapes; download a pdf here.) Another essay considers prison environments, visitation, and the sensation of "touch." Another Tweet links to an article suggesting a significant failure of forensics is the inability to convey smells. What an interesting lens through which to view corrections!

Tuesday, February 04, 2020

No R-E-S-P-E-C-T: Jury trials not only place for Texas criminal-defense lawyers to shed Rodney-Dangerfield image

"Want to earn a prosecutor's respect?," asked the Texas Criminal Defense Lawyers Association on Twitter. "Beat them in a jury trial."

So how much respect are Texas criminal-defense lawyers earning?

From the 2019 annual statistical report of the Texas Office of Court Administration, here are a few data points on trials I wanted to record for my own purposes. Maybe some Grits readers will also find them interesting.

Overall, reports the OCA, attorneys in Texas are taking about 5% of felony cases to trial. That's more than I would have expected, and as I'll discuss below, may be overstated.

Felony cases go to trial more often than misdemeanor cases, but acquittals in felony cases are rare:

Not as rare as in misdemeanor cases, though.

To be sure, many more cases receive dismissals than acquittals. Indeed, more misdemeanor cases are dismissed across the state than end up with a formal conviction. But apparently, securing dismissals doesn't earn prosecutors' "respect."

As an aside, what does it say about the quality of misdemeanor arrests being made if 43% of the cases are being dismissed?

Notably, when misdemeanor cases do go to trial, several categories of offenses have high acquittal rates:


But it just doesn't happen that often. Juries were selected in only 4,107 criminal cases in Texas during FY 2019: 2,701 in felony cases and 1,406 in misdemeanor cases. That's out of nearly 600,000 total criminal-case dispositions last year. (This is why I question the graphic above that said 2% of felony cases went before a jury; the juries-picked data in the same report comes in at 1.2% of felony cases.)

Regardless, for years I've heard complaints from thoughtful criminal-defense lawyers that TCDLA training and programming too overwhelmingly focuses on trial preparation and execution, even though that's a rather small part of what most criminal-defense lawyers do with their days. This Twitter tip seems indicative of that same attitude.

Grits would suggest to criminal-defense attorneys their higher priority isn't to seek "respect" from prosecutors so much as the best result for their client. Feeling personally disrespected is seldom a good reason to alter one's strategy when dealing with the government, and that goes double for attorneys in criminal court. It's just not about you!

Defendants receiving dismissals are better off than those who must go through a trial to get an acquittal. For my money, their lawyers deserve "respect," too," but apparently they must look for it somewhere besides their professional association.