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.

Monday, February 03, 2020

Trump Super Bowl ad bolsters red-state #cjreform prospects

It's a sign of changing times that two Super Bowl ads ran yesterday (worth >$5 million each) related to criminal-justice reform. One was from the NFL (on police shootings), which I suppose could be considered a house ad. But the more surprising one by far was a new commercial from President Donald Trump's re-election campaign touting his clemency for Alice Free and passage of the First Step Act, which among other things shortened sentences for thousands of presently incarcerated federal prisoners.

Having spent more than $5 million on a Super Bowl ad, it seems highly likely we'll see this message quite a bit more in the coming weeks and months. The only reason you spend that kind of money is to launch a broader campaign. So this is a signal the First Step Act will be a central focus of the president's re-election message for at least part of the year. That can only help downstream reform efforts.

Grits found Trump's ad a bit odd and overstated, but from a big-picture perspective, I'm thrilled he ran it. As I wrote following the First Step Act's passage, the president's endorsement makes it harder for state-level Rs to adopt anti-#cjreform rhetoric and easier to embrace it. Now, "With Donald Trump's full-throated endorsement of the First Step Act, and with his son-in-law championing it in his administration, conservative Republicans supporting #cjreform are aligning themselves with the president headed into the next election."

To be clear, President Trump's record on criminal-justice issues has mostly been atrocious going back to the 1980s when he took out newspaper ads hounding the system to apply the death penalty to the Central Park Five (who were later exonerated, see Ava Duvernay's When They See Us). But even stopped clocks are right twice per day, and whatever one may wish it did besides what it did, the First Step Act was an improvement over the status quo and led to the release of thousands of already sentenced people earlier than would otherwise be the case.

At the Texas Legislature, proposals that release already-sentenced prisoners early based on good behavior or programming success have long been a third rail. It's why Texas has prison units that could be mistaken for nursing homes and incur exploding end-of-life healthcare costs. But even among conservatives, opinion is shifting. Following the most recent legislative session, the Texas Public Policy Foundation expanded its agenda to include adjusting parole policies to allow more releases. (I interviewed TPPF's Marc Levin about this last summer, listen here beginning at ~12 minute mark.)

Now, critics of such policies find themselves on the wrong side of the president's re-election messaging. That doesn't mean there won't be resistance to #cjreform initiatives, but it arguably helps undermine opposition to them.

MORE: On Twitter, former Texas House Corrections Committee Chairman and well-known GOP justice reformer Jerry Madden says he thinks Trump campaigning on #cjreform helps in blue states, too. Maybe so, I only feel qualified to speak reliably on Texas. But my sense is that Democrats will either consider the ad a ploy and ignore it, or else criticize the First Step Act for not doing more, which is what they were already doing anyway.

It's on the GOP side where this has the potential to shift the terms of debate. If the Trump campaign follows up this $5 million expenditure with millions more to promote the message in the coming weeks and months, which is how these things generally work, it will encourage his base to gravitate toward Right-on-Crime-type positions they would have criticized had Hillary Clinton adopted them.

Mass incarceration arose in the first place because, 25-30 years ago, there existed an unwavering bipartisan consensus in favor of making the system harsher. We won't ever reverse all that until both parties support overturning that generational policy error. Perhaps I'm being too sanguine. But if the Trumpian base begins to internalize #cjreform messaging as a result of this election cycle, and if reformers succeed in scaling back the carceral system, then maybe, down the line, history could recall this ad and the reaction to it as an important part of the story of how a new, de-carceral consensus was developed.

Saturday, February 01, 2020

Drug War propping up Texas criminal caseloads in a time of declining crime

The new 2019 annual statistical report for the Texas Office of Court Administration provides these broad datapoints about the Texas criminal-justice system:

The number of new misdemeanor cases continued to decline last year in Texas, but felony cases continued to rise slightly.


Drug cases contributed to a huge amount of this volume, both for misdemeanors (mostly pot) and especially new felony filings:


FY 2019 data already showed a slight drop in marijuana caseloads, even though the Legislature didn't change the hemp law until the fiscal year was nearly over. But felony drug cases continued to rise, helping generate overall felony caseload increases even though reported crime rates have hovered around generational lows in recent years.