Sunday, May 31, 2020

Feeling hopeless: Is there room for moderation on police reform?

Via Twitter
A few weeks ago, Grits was on a Zoom call with local activists asking Austin city manager Spencer Cronk to fire his police chief, Bryan Manley. There are many reasons, but the proximate cause was an APD officer murdering Mike Ramos, an unarmed black man whom the cops assaulted while he stood before them with his hands in the air, then shot to death when he fled. Cronk refused, but said he might reconsider as the situation developed.

Chas Moore of the Austin Justice Coalition and I both tried to impress on him that the folks on the call represented the faction of the movement that was willing to work within the system, but that there was a wide swath of people in the community who were so angry they would soon eschew calls for systemic change in favor of straight up retribution. People are really mad, I recall Chas telling Cronk, and "things are about to boil over."

Now they have boiled over. Would there still have been protests yesterday if the police chief and assistant city manager who have thwarted change over the years had been already been fired and authorities had shown they were willing to hold Mike Ramos' killer accountable? Probably. The murder of George Floyd in Minneapolis drew a national response. But would the reaction in Austin have been less intense if local officials had already demonstrated their commitment to reducing police violence in this city? Of that I have little doubt. Tension over the Mike-Ramos episode already was on a knife's edge. George Floyd's murder gave people permission to openly express rage that had been simmering under the surface.

Grits gets accused a lot of being too angry and unreasonable. I'm told by state and local officials repeatedly that I'm asking for too much and must understand that change takes time. But I've been involved in efforts to effect change at the Austin Police Department for fully a quarter century and objectively, we've achieved very little. From my perspective, I've been incredibly patient. Almost certainly too patient. Yesterday, Austin officials got a taste of what it looks like when a community runs out of patience.

What those officials don't hear are all the folks who think people like me, Chas Moore, and others who work within the system are simply sell outs. But I hear them. All the damn time. Many, many people think the system is so violent and corrupt that it can't be changed for the better, that it must be burned to the ground. And when folks like Spencer Cronk, who is perhaps the most reasonable city manager we've seen in my 35 years in Austin, snub widespread community calls for change and protect the people responsible for the worst harms, it's awfully hard to make a convincing case to the contrary.

Grits doesn't regret working all these years to change the system, but I also can't escape the fundamental truth that incremental change has been profoundly insufficient. I'm not sure burning a police car would accomplish more, but I'd be hard pressed to conclude it would accomplish less. 

Thursday, May 28, 2020

Prosecutor-turned-TV-star cultivated ring of informants to give false testimony in cold cases, federal judge declares

Imagine prosecutors cultivating a "ring" of jailhouse snitches to give false testimony in cases where there otherwise was insufficient evidence to convict the defendant. Well guess what? You don't have to imagine.

A recent Houston Chronicle article by Julian Gill described remarkable allegations against former Harris County prosecutor turned TV star Kelly Siegler, with a federal district judge claiming that she concealed information about the recruitment of an informant from federal prison on Beaumont to convict Jeffrey Prible of capital murder in 2002. Judge Keith Ellison ordered a new trial for Prible, declaring he must be released in six months if the DA doesn't re-try him.

But reading the judge's 88-page order, the details are even more startling. The judge described a "ring of informants" in the federal prison - at least five or six, maybe as many as ten - who would essentially testify to whatever prosecutors needed them to say.

The leaders of this "ring" first tried to convince another man, Carl Walker, to testify against Prible before Mike Beckom agreed to do it.  Walker said the ring's leaders were “'always on the phone' with Siegler,” one of them “almost on a daily basis” regarding the case. Walker said the ringleaders “directed him to 'write a letter' to be sent to Siegler describing 'details about [Prible’s] case'” that the others had fed to him. Walker claimed that  “'common sense' told him that 'someone high on the food chain was feeding these guys the information because [Prible] wasn’t telling' Walker facts about the crime. '[T]he whole plot was made out before it was actually executed.'” 

"To Walker’s knowledge, however, Prible never actually confessed." Indeed, "Walker did not think that Prible had committed the murders."  "Overall," the judge observed, "Walker described a ring of 'five or six' informants who were trying to incriminate inmates like Prible."

That same ring, Walker explained, was “simultaneously involved in setting up another inmate, Hermilo Herrero, for another cold case murder. According to Walker, 'this is how you have [the] miraculous coincidence that the same group of guys . . . have been confessed to by two different people on two different murders, totally different murders.'”

Walker “said he came to a 'moral . . . crossroad' when he asked himself: '[Am I] going to openly lie about information I had no idea about and send this man to his death?' He added: 'I just know these guys is guilty of conspiring against him and working to recruit me and others or whomever that would listen to, actually, ah, get him on death row. I know that for a fact. I do know for a fact that Kelly Siegler was involved.'”

The informant who did testify, Mike Beckom, was recruited by his cellmate, Nathan Foreman. "Foreman testified that, after he became cellmates with Beckom in October 2001, they met Prible in the recreational yard.  By that point, however, Foreman already knew some facts about Prible’s case and had relayed them to Beckcom. Foreman had gotten his information from [another inmate, Jesse] Moreno and Siegler."

Siegler said she would not have relied on Foreman because she considered him a "liar." But she "conceded, however, that even though she similarly did not believe Foreman in Herrero’s case and accordingly did not use his testimony at trial, she nonetheless wrote a Rule 35 letter for him."

Beckom testified against Prible because he thought it would get him out of prison. Wrote Judge Ellison:
From the beginning, Beckcom testified that Siegler led him to believe that he would “get walked out . . . for [his] testimony” against Prible. Siegler told Beckcom, “[t]his probably will get you out of prison.” Beckcom thought that Siegler told him that she had talked to the federal prosecutors about his own case and they would “play ball.” He said that he had no other reason to develop evidence against Prible other than to receive a Rule 35 letter for a sentence reduction. Beckcom “knew [Siegler] had lied” because he only received one year off of his sentence for his testimony. 
The Court of Criminal Appeals said Prible had sufficient information to have claimed the informant conspiracy earlier. But, Judge Ellison concluded, "Although Prible may have suspected prosecutorial misconduct, including Brady violations, during the course of state court proceedings, Siegler’s efforts to suppress evidence of her contacts with Beckcom and the other informants left Prible with no concrete evidence to support such a claim during those proceedings, despite Prible and his counsel’s diligent efforts to discover such evidence."

To be sure, wrote Ellison:
In many ways, Beckcom was not a credible witness. From the Court’s review of the record and its observation of his live testimony, it is obvious that Beckcom was dishonest when it suited his needs. In other areas, however, Beckcom’s testimony corroborated other testimony and the timeline of events. While the Court finds that Beckcom was generally not a credible individual, certain areas of his testimony can be confirmed when compared to the record.
Kelly Siegler, it must be emphasized, denied any misconduct. But many of her answers to the most salient questions amounted to "I don't remember," while all the details that supported Prible's conviction she remembered vividly.

The judge noted that she'd received letters from several other people in the ring offering testimony against Prible but didn't follow up because she didn't believe them. "Curiously," wrote Ellison, "Siegler said that the letters were in the file open for Prible’s defense attorneys to read. This, of course, turned out to be untrue." Concluded Judge Ellison, "it is now undisputed that they were in her work product file and were not disclosed to defense counsel."

Further, Siegler "testified that she never saw Foreman after the August 2001 FDC meeting; yet, there is unrefuted evidence that she had a meeting with him in December 2001 at FCI Beaumont."

The only other evidence against Prible was DNA, but that wasn't enough to initially charge him because he freely admitted he'd been having an affair with the victim. Only the jailhouse snitch saying Prible confessed gave the state enough evidence to get a jury to convict. But even the DNA evidence was suspect. According to Judge Ellison, "The State did not disclose that it had developed evidence supporting the defense’s expert testimony on the DNA, but still presented testimony with directly opposite scientific conclusions."

Despite all this, Prible would normally be procedurally barred from making these claims because he did not include them in earlier habeas writs at the state level. But Ellison ruled that Siegler withholding critical evidence was sufficient to overcome that bar: After all, actions by the attorney representing the state itself was the reason Prible couldn't raise these claims before.

This was a remarkable ruling and the facts of the informant ring shopping testimony to prosecutors sounds like it came straight out of a movie. This isn't the first time Kelly Siegler has been accused of withholding evidence from defense counsel, but it may be the most sensational example.

Notes: Citations omitted from all quotes from the order. Also, Mr. Herrero's name was spelled two different ways in the judge's order. I looked him up in TDCJ's database and used the spelling corroborated there.

Tuesday, May 26, 2020

Reasonably Suspicious podcast back from hiatus: Austin police chief under fire, COVID in TX prisons and jails, Harris DA calls to overturn shady drug convictions, and other stories

After a three-month hiatus while your correspondent underwent throat-cancer treatment, here's the May 2020 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted as always by me and Mandy Marzullo. Grits must admit, until I was editing all this together, I hadn't realized how much the radiation treatment had affected my vocal chords: I sound like a different person, decidedly heading in the raspy, Tom-Waits-ish direction. (Really that's wishful thinking; my singing voice is completely shot.) Regardless, it was good to see Mandy again and climb back into the podcasting saddle.

We went a little longer this time because the segment on Austin PD includes a half-dozen excerpts from a community forum held last week by the Austin Justice Coalition. Lots of good stuff there. Thanks to Chas Moore for getting me the audio. As always, the podcast is available on Soundcloud, iTunes, and Google podcasts, or you can listen to it here:

Here's what we discussed this month, with time stamps in case you want to jump to an individual segment:

Top Stories
  • Community groups call for Austin police chief's ouster (1:46)
  • Coronavirus in Texas jails and prisons (32:40)
Fill in the Blank
  • Ransomware attack on Texas courts (44:40)
  • The Texas AG and Rosa Jimenez (48:15)
  • Editor of Palestine paper wins Pulitzer for series on jail oversight (51:30)
The Last Hurrah (53:25)
  • Harris County DA calls to overturn shady drug convictions
  • San Marcos mandates citations instead of arrests for petty crimes
  • Joe Bryan gets parole
Find a transcript of the podcast below the jump. Enjoy!

Monday, May 25, 2020

Rainy Day Reading

Poking around this afternoon on some state agency websites, I ran across several disparate items I wanted to record for my own purposes which may also interest Grits readers:

State Prosecuting Attorney: Check out an interesting Power Point detailing different legal provisions establishing prosecutors' duty to disclose evidence to the defense in Texas, as well as limitations on defense attorneys' ability to advise clients on how to handle potentially incriminating evidence.

Texas Indigent Defense Commission: See a variety of linked training resources related to magistration, managed-assigned counsel programs, and competency restoration from a conference in January. This presentation on the challenges of implementing the Fair Defense Act included a chart demonstrating smaller Texas counties are still resisting requirements to appoint counsel for indigent defendants in misdemeanor cases.

Texas Forensic Science Commission: The commission has published a complete list of licensed technicians and forensic analysts in Texas. Here's more background on the licensing program, which took effect last year. 

Texas Commission on Jail Standards: Here's their guidance to jails on implementing Governor Abbott's new executive order forbidding county jail visitation except for attorneys and clergy.

Texas Commission on Law Enforcement: See their guidance to agencies on law-enforcement training delayed by coronavirus restrictions. There are currently more than 80,000 licensed peace officers in Texas, or about 2.7 cops for every 1,000 people.

Sunday, May 24, 2020

Manley exonerates Mike Ramos' shooter in report to Ken Paxton filled with false statements

The killing of Mike Ramos by the Austin PD has been an instructive moment. Chief Brian Manley's reaction to the shooting of yet another unarmed man tells us definitively that he has no intention of changing his stripes, and justifies the increasingly widespread calls for him and the APD leadership team to all lose their jobs.

If there was any doubt of this, the death-in-custody report Chief Manley filed with the Texas Attorney General demonstrates that he intends to continue time-worn patterns of racist policing from which Austin has suffered for many decades. The report essentially exonerates the shooter, Officer Christopher Taylor, making phony excuses to legally justify his actions.

Regular readers know Grits doesn't throw around the term "racist" lightly, but it's simply inconceivable that the methods and attitudes evinced in this report would be applied if the episode had involved a white person in the Zilker, Windsor, or Mt. Bonnell neighborhoods. 

Before getting into the details, if you haven't seen it, or need a refresher, watch the video. Ramos was standing beside his car with his hands up talking to the officers when a rookie three months out of the academy fired on him with a shotgun loaded with a bean bag round while bystanders screamed "don't shoot." Ramos got into his car and drove away from officers down a dead end to keep from being killed. It didn't work. Another officer, who just ten months before had killed a university professor suffering from a mental health crisis in another dubious shooting, shot Ramos multiple times with a rifle.

So how does Chief Manley describe the episode in the death in custody report?

Asked what were the reasons for the contact, Manley wrote "Alcohol/drug offense." No drugs or alcohol were found at the scene, so this is pure victim blaming which frankly is reprehensible. Whatever the 911 caller said, Ramos had committed no offense when officers surrounded him with guns drawn and began screaming at him. Why is the chief still pretending otherwise?

Another question asked, "At any time during the incident and/or entry into the law enforcement facility, did the decedent display or use a weapon?" Manley replied, "Unknown." Again, this is a flat-out lie. Manley admitted at a press conference that Ramos had no weapon, which is also quite clear from the bystander video.

Next, the form asked, "At any time during the incident and/or entry into the law enforcement facility did the decedent attempt to injure others?" Once again, Manley simply lied, declaring "Unknown." This is, in fact, known. Ramos attempted to injure no one, and was driving away from officers when he was shot. The only "unknown" here is what the hell the chief is thinking by answering these questions in such a disingenuous way.

Similarly, Manley declared it is "unknown" whether Ramos assaulted a police officer during this incident. From the video, clearly he didn't, and if he had, it would have been listed at the top of the report as the most serious charge against him.

Manley claimed Ramos "barricaded himself or initiated a standoff." This is, at best, a stretch. I suppose, since he ducked back into his car and tried to get away once police began firing at him, one could claim Ramos "barricaded" himself, even if it was in response to a deadly threat against his life. If someone fired a shotgun at you, who in their right mind would just stand there and wait for them to do it again?

Manley's officers were the ones who "initiated the standoff," surrounding the unarmed man with guns drawn and screaming at him from a distance while Ramos stood there with his hands up and showed them he had no weapon. As in the recent episode in Midland where officers stood 10 yards from a 21-year old boy laying on the ground surrendering himself, APD officers could have approached Ramos and ended the "standoff" any time they wanted. They were in complete control. But, as they were trained to do, Austin PD escalated violence instead, and in a totally unnecessary way.

Regrettably, Mr. Ramos didn't have a 90-year old grandmother immediately available to intervene and save his life, as happened in Midland.

The narrative description in the death-in-custody report makes clear that Ramos initially complied but, like the guy in Midland, feared approaching officers while they were pointing their weapons at him because he thought they'd shoot him. Let's face it: Given how many black folks get shot by police under dubious circumstances, these are reasonable concerns.

These men were in no-win situations. If Ramos stood still and officers opened fire, he is called "non-compliant." If he'd walked toward the officers and they shot him, this report would almost assuredly say he made a "furtive movement." Given the misinformation included in this death-in-custody report, there's no doubt in my mind that Chief Manley would have justified killing Mike Ramos either way. 

Officers must be trained to understand that many black people justifiably fear them. And not just fear of false arrest. Fear for their very lives, from the moment they encounter a police officer till well after the officers leave. These fears are reasonable, not irrational, and ignoring them makes worst-case scenarios like this one much more likely. Ramos and the guy in Midland both feared that, if they approached officers or did anything but stay still and surrender, they risked being shot. They were 100% correct. 

It's particularly telling that the cop who fired the bean-bag round at Ramos was a rookie just three months out of the academy, because it speaks directly to Austin PD's approach to training cadets. Readers may recall that ten former cadets have sued the city over training methods at the police academy which were demeaning to cadets and promoted violence. According to the cadets, instructors told them "they would 'punch you in the face' if you said you wanted to be an officer to help people," and "also told students that a suspect who resists arrest or who fights with an officer 'just earned a legal ass-whooping.'" Cadets complained that "instructors repeatedly degraded homeless people and prostitutes, referring to them as 'cockroaches' and encouraging cadets to 'find a transient' if they were bored and wanted an easy felony arrest."

Cadet training at Austin PD explicitly promotes unnecessary violence. According to the cadets suing the city, “An instructor told them they needed to achieve a 'winning warrior mentality' by picking out a person in their daily lives — preferably not an older woman or child — and visualizing themselves 'shooting that person in the face.'”

This is the training this rookie cop had undergone just months before he initiated the events that ended Mike Ramos' life. Honestly, this is why I think APD leadership must be held to account. They're the ones responsible for that training, the rookie cop did what he'd been taught to do.

Incidentally, as part of the City Council's demand for an audit of Austin PD training practices, a panel has been appointed to review all the videos used by the department. Unfortunately, APD is rushing the process. The panel has been asked to review 112 videos, in 13 marathon sessions, by July 1st, which some panelists have said is an unrealistic time frame and setting the group up to do an inadequate job.

To me, bystander video of the Ramos shooting and the episode in Midland would make excellent training videos on what NOT to do. These situations were mishandled from the beginning and demonstrate that many Texas police officers seemingly don't have a clue how reasonable black folks react in the 21st century when police officers threaten to kill them for no good reason. In both instances, the background commentary from average people watching should be required listening as part of the curriculum. The fears bystanders express in both are commonplace and reasonable, particularly in the black community. Someone who wants to do that job should be required to understand those perceptions.

After answering the specific questions in the death-in-custody report, APD included this narrative description of the incident. Reading it, it's clear to me this episode is something that could only ever occur in a poor, predominantly minority neighborhood. It's inconceivable that police would have approached white folks in a middle-class part of town in the manner described here:
On April 24th, 2020, at approximately 6:31 pm, Austin Police Communications received a 911 call indicating a male and female were sitting in a gold Toyota Prius at 2601 South Pleasant Valley Road. According to the caller, the subjects appeared to be using narcotics. As officers responded to the area, an update to the call indicated the male subject had a gun. Officers requested the assistance of Air 1 (helicopter) and K-9, but they were not immediately available. Before arriving at the scene, officers stopped briefly to discuss their response to the area and create a plan before attempting to approach the subjects in the vehicle. After formulating a course of action, officers approached the area in marked patrol units. Officers strategically parked their patrol vehicles, effectively blocking the exit and mitigating the risk of flight. Officers observed the Toyota Prius backed into a parking spot in the apartment complex parking lot near the one-way entrance/exit. Officers immediately commanded both subjects to show their hands as police communications identified the nature of the call as "gun urgent." Officers continued to give verbal commands as both the male and female exited the vehicle. Officers commanded the male subject to lift his shirt and turn around in a circle. The male subject initially complied with commands but eventually became non-compliant and verbally confrontational. The male subject began asking why officers had guns pointed at him and asked officers to put their weapons away. The male subject walked back toward the driver’s door of the Toyota Prius and remained non-compliant and verbally confrontational. The male refused verbal commands from officers to step forward and away from the driver's door. Due to the nature of the call and the 911 caller’s information, officers had reason to believe the Toyota Prius could contain a gun. Due to the male subject’s noncompliance and ability to possibly access a gun inside the vehicle or on his person, officers decided to deploy a less-lethal munition to gain compliance. The less-lethal munition struck the front of the male subject on the left side of his body but did not prove to be effective as the male subject quickly entered the driver's door of the Toyota Prius. The male subject closed the driver door and started the vehicle. Officers commanded the driver to turn off the vehicle but he did not comply. Approximately nine seconds later, the male subject drove forward out of the parking spot. Fearing the male subject intended to use the Toyota Prius as a deadly weapon, one patrol officer fired his patrol rifle,  striking the male driver. The Toyota Prius collided with another parked vehicle in the parking lot and came to a stop. Officers approached the driver, extracted him from the Toyota Prius, and began to apply medical aid. Officers summoned EMS to the scene. EMS responded and transported the male subject to a local hospital where he was pronounced deceased at 7:26 pm.
Notably, Manley claimed that Christopher Taylor feared that Ramos "intended to use the Toyota Prius as a deadly weapon." If true, that would be a legal justification for the shooting, which is why I said the report "exonerated" the shooter. But this is another bald-faced lie. Ramos was driving away from officers down a short dead end, not toward them. From the video and even cursory observation of the scene, that's simply an unreasonable inference. It's an excuse being offered to legally justify the shooting post hoc, not a reasonable interpretation of what the officer was thinking in the moment.

Let's also ask ourselves if police would have called for dogs and helicopters if they got the same call in West Austin? I've never heard of that happening in predominantly white neighborhoods; this is something they do to black people.

Clearly, even from APD's own, biased narrative, Ramos complied with officers' commands so far as they were reasonable. He kept his hands up until they began shooting at him, and raised his shirt and turned around when he was told to do so. But he didn't want to move toward officers while they were pointing their weapons at him because he's a black man in Texas and feared he would be shot. He wanted them to deescalate the situation before he abandoned his hands-up-I-surrender position, and Grits doesn't blame him one bit. Ramos had already demonstrated he wasn't a threat. There was simply no reason for officers to keep threatening to shoot him, except that that's what they're trained to do.

The death in custody report reveals more about Chief Manley than it does the details of the shooting. It shows us Manley believes what happened was what should have happened. And it's an indication he has no intention of changing how Austin police handle such situations; to him, this was all by the book. Finally, it demonstrates Chief Manley will lie, obfuscate, and mislead in order to justify the worst outcomes.

The report also shows why everyone should be careful when interpreting data points from these death-in-custody reports. This is far from the first one I've seen that flat-out misrepresents facts in order to justify police officers killing someone.

UPDATE (5/29): Chief Manley is telling people he didn't see this document before it was filed, despite his being one of two names listed as its source. If true, he should immediately issue an amended version correcting all the smears and falsehoods. And it speaks to his management priorities that he considered his department's official, public portrayal of the details of the Ramos shooting unworthy of his interest. 

Saturday, May 23, 2020

Hero Grandma prevents Midland cops from shooting grandson, Austin to end driver-license holds on traffic tickets, Joe Biden is a jackass, and other stories

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

Midland Grandma a hero for putting herself between black grandson and over-zealous cops
In Midland, bystander video caught police officers swarming a young black man with guns drawn after he allegedly rolled through a stop sign. They continued to point their guns and scream at him long after he'd laid down on the ground to give himself up, and from the video, it looked for all the world like he was about to be shot. The boy's 90-year old grandmother was a friggin' hero! She went out into the yard in her pink house dress with a cane and stood over her grandson. That forced the officers to finally step forward and end the confrontation, but not before knocking her to the ground as well. The man's lawyers allege he was assaulted afterward in the back of a police car. This was utterly unnecessary. Why are police officers trained to behave this way?

Qualified immunity remains intact despite TX Supreme Court ruling allowing lawsuit
The Texas Supreme Court ruled that a lawsuit by the family of man shot at a traffic stop by a police officer employed by Incarnate Word college was not barred by qualified immunity. But the decision hinged on the fact that it was a private university. Reported the San Antonio Express News, "In an opinion written by Justice Jane Bland, the court ruled private universities with police departments are not arms of state government and giving the university sovereign immunity isn’t consistent with the doctrine’s purpose." In related news, the US Supreme Court recently declined to take up cases that would have let them confront qualified immunity directly. So the San Antonio case was an outlier, hinging on the private nature of the university's police force. The doctrine overall remains in effect.

Austin to end driver-license holds on traffic tickets
The City of Austin will end its contract with Omnibase, the state program that puts holds on people's driver licenses if they don't pay traffic tickets. For years, little attention was paid to the program because the number of licenses affected was dwarfed by the Driver Responsibility Program. But after the DRP was finally abolished in 2019, there's been a renewed push to de-fang the Omnibase program, doggedly led by Emily Gerrick at the Texas Fair Defense Project and Mary Mergler at Texas Appleseed. Other jurisdictions should follow suit, and the Legislature should simply eliminate the program when it meets again next year.

Coronavirus and corrections: a roundup
KSAT has the story of a man arrested for criminal mischief in San Antonio who qualified for a personal bond but was kept in jail because of Gov. Greg Abbott's executive order; he has now contracted the coronavirus. Abbott issued another executive order yesterday suspending visitation at Texas county jails in light of the coronavirus, though many had already done so. That doesn't change the fact, however, that jails don't keep people locked up forever nor prevent predictable problems when people leave. The Houston Chronicle's Gabrielle Banks and St. John Barned-Smith offered up a detailed blow by blow of the Harris County Jail's response to the coronavirus. Well worth a read. Meanwhile, in the Tyler Morning Telegraph, Cory McCoy had an excellent story titled, "Plaguing Prisons" on the same topic, with a followup from Zak Wellerman focused on county jails. Our pal Marc Levin of the Texas Public Policy Foundation weighed in with his own op ed in the Tyler paper suggesting decarceral approaches to mitigate those harms. East Texas has been getting especially good reporting on this front: The Palestine Herald Press has had excellent coverage of COVID in prisons and jails in its coverage area. Lastly, after armed protesters were arrested outside a bar opposing a governor's executive order in Ector County, open-carry advocates are now itching to confront the Sheriff directly, threatening non-compliance if he does it again. These debates are shifting from stupid to dangerous.

Criminal-justice reformers have no presidential candidate
Grits couldn't have been more disappointed at presumptive Democratic presidential nominee Joe Biden's criminal-justice comments in his interview with Charlemagne tha God. I'll leave it to others to parse his comments on who is and isn't black. But doubling down on his support of legislation that spawned mass incarceration in this country was dispiriting. Add to that his opposition to pot legalization - in an era when nine states have legalized recreational use, he thinks pot smokers should endure "mandatory rehabilitation" - and he comes off as a clueless codger, a throwback to the bad-old days. He had more positive things to say about Strom Thurmond, whom he eulogized at the old white supremacist's funeral, than he did criminal-justice reformers in that interview. I'm guessing Donald Trump could tip the election at this point just by coming out in support of ending federal marijuana prohibition. What an embarrassing moment for the nation that these two septuagenarian clowns are the best our political process can offer to lead the country. I'm not that interested in discussions of which one is "worse." (I'll personally never forgive DT for his role in the Central Park 5 case.) I was hoping to have someone to vote for in this election, and for criminal-justice reformers, we didn't get it.

Thursday, May 21, 2020

Texas leaders' budget direction for prison agency makes no sense

Texas state agencies have been asked to prepare budgets that include 5% cuts in light of reduced tax revenues thanks to the coronavirus and plunging oil prices, the Texas Tribune's Jolie McCullough reported on Twitter. The TDCJ Correctional Security division and UTMB Managed Correctional Healthcare are exempt from cuts, but "Other parts of TDCJ's budget though — like parole, education/training programs, drug treatment, executives — seemingly will have to be in proposed 5% cut."

This is exactly backwards from a wise management response. Most of Texas' prison costs stem from incarceration. In reality, slightly boosting parole and drug treatment funding could easily reduce incarceration in a big way, allowing the state to close more prison units and reduce spending on the agency's largest line item.

In particular, there are presently about 15,000 people locked up in TDCJ who have already been granted parole but haven't been afforded access to treatment services which they're required to complete before they're released. By spending money to let these folks complete treatment services before they're up for parole, the state could eliminate incarceration costs for them and close a half-dozen large units or more.

Moreover, treatment best practices dictate that they should receive services earlier, anyway - closer to the time when they were struggling with addiction in the free world. Making them wait till the end of their sentence is something that happens because TDCJ doesn't provide services at sufficient levels, not because it's the right thing to do.

Another option would be to let folks complete treatment services once they're out on parole. Thanks to the COVID lockdowns, many of these courses already are being taken via correspondence packets the prisoners complete in their cells. There's not much difference between that approach and letting them complete them in the free world and hand them in to their parole officers.

State leaders are basically saying to TDCJ: "You operate an inefficient system. So double down on the most inefficient part and cut spending on the parts that would save money for the state overall."

Honestly, at times like these, Grits can't help but wonder if state leaders actually want people locked up in prison longer than necessary, or if they just don't have a clue what they're doing. I suppose those two things are not mutually exclusive.

Tuesday, May 19, 2020

Manley's Men: Austin police chief's defenders don't have many valid arguments

Apparently, Austin Police Chief Brian Manley is feeling the heat. His allies have created a sparsely populated Facebook group (in which dissenting views are banned) to support him, and the Greater Austin Crime Commission issued a letter, with a memo from Manley attached touting his ostensible accomplishments, attempting to defend his record.

The Facebook group is full of pablum, but I thought it worth examining the Greater Austin Crime Commission letter to evaluate their arguments. 

It starts off with facts that don't necessarily speak in Chief Manley's favor. "Violent and property crime ... increased significantly downtown and in the entertainment district. Response times were slower, and traffic fatalities increased." One could also have noted that property crimes went up last year as well.

Considering that Chief Manley, in his attached memo, claimed that "Austin has remained one of the safest cities in which to live, work, and travel," those trends seem to contradict him. In reality, both things can be true. Austin has long been and remains a very safe city. But it has become less safe on Manley's watch, if these metrics are to be believed.

My own sense is that Austin crime increases are, in fact, within normal ranges of fluctuation and that Austin's crime rate remains near generational lows. But since Chief Manley himself has touted violent crime increases, spuriously attempting to link them to changes in policies regarding Class C misdemeanor arrests, from a political perspective, he gets to own them. 

The GACC goes on to give the police department credit it doesn't deserve for revamping training at the academy: "the police department is undergoing a comprehensive training audit, responding to the issues raised in the recent independent inquiry into bias and racism, and investigating a fatal officer-involved shooting. Confronting these problems and making significant improvements is what the community expects and what the department is doing."

In fact, that overstates what the department is doing. In reality, Chief Manley had insisted on going forward with a new police academy in June without completing the audit mandated by the Austin City Council in December. City Manager Spencer Cronk overruled him, pushing the academy back until mid-July when the audit is scheduled to be completed. And even that is an unrealistic and overly optimistic timeline. Manley does not deserve credit for being forced to comply with City Council directives that he intended to ignore.

The GACC wants to absolve Chief Manley for his role in condoning and concealing racism allegations at the highest levels of departmental management, instead blaming the police-union president for his part in the mess. But more than one thing can be true. This blog has insisted the union boss was partly to blame. But Chief Manley was uniquely culpable, and the Tatum report singled him out for failing to act despite numerous opportunities to do so. In particular, the author concluded:
Tatum Law was able to establish that Chief Manley had reason to inquire as to AC Newsom’s conduct based on a self-report of text messages that were troublesome, about which AC Newsom indicated he would leave the Department if they became public, and two separate allegations of racist text messages and comments occurring about one month apart. The October 7, 2019, email received by Chief Manley alleging similar facts to those later alleged in the October 30, 2019 complaint about AC Newsom’s use of the derogatory term “nigger” in text messages to refer to African Americans provided sufficient information to suggest that AC Newsom was in violation of policy for review or investigation. Chief Manley did not send these allegations for review or investigation.
The GACC letter mentioned another development that hasn't yet been reported in the local press: The Austin Police Association is in the process of conducting a no-confidence vote among its members regarding Chief Manley. (The union and reform groups don't agree on much except that Chief Manley needs to go.) The letter accuses the union of issuing a biased survey intended to undermine the Chief - well, yes, a no-confidence vote from his employees would undermine him! OTOH, his employees don't have to vote for it. If they do, the City Manager should perhaps consider that a meaningful data point.

To be clear, the union vote shouldn't be definitive. No-confidence votes by police unions for a chief can be highly politicized and don't always reflect the best interests of the community. But combined with the wide array of community organizations, including many which aren't expressly justice-reform groups, who already have called for the Chief's ouster, it helps complete a picture of an administrator who has lost the faith of the community he serves.

The Greater Austin Crime Commission over the years has been an organization dedicated to promoting police as a solution to every social problem. Mainly, they just want ever-more cops hired and deployed downtown, even though arrests and jail bookings are way down and there's less for Austin patrol officers to do (particularly during the COVID era) than at any time in recent memory.

In this case, they've taking a different tack. They suggested "that Chief Manley be given a deadline of October 1, 2020 to demonstrate substantial progress in operational and policy changes," at which time the City Manager should make a formal recommendation about his future. In the meantime, GACC pledged "to meet with other criminal justice reform, neighborhood, and social justice groups to review and resolve concerns with the police department."

If they want to review the problem, they should start by reading the letter from community groups calling for Manley's ouster. It's quite detailed and specific. And here's a supplemental compendium of reasons he deserves to be fired. Only a group of powerful white guys embodying the downtown corporate establishment could step in at this late hour with such confidence that they can "resolve" discontent expressed across so many vectors. Nonetheless, acknowledging there could be any problem at all is a new message for these folks.

The GACC's statement defends Chief Manley, but in important ways it falls short of the whole-hearted endorsement Grits would normally expect from this stalwart, pro-cop crew. The difference between the GACC and everyone else , in the end, appears to be a matter of degree and emphasis. They suggest Manley be given until Oct. 1 to "demonstrate substantial progress in operational and policy changes" while community groups with more direct experience trying to enact that "progress" say new leadership is needed now. The GACC criticized community groups for giving short shrift to "the considerable work" listed by Manley in his memo, without commenting on whether that work has been productive. They called for better communication between management and the union; community groups have called for better communication with everyone. 

Chief Manley's attached memo added little to their argument. Mainly, it described out-of-context actions by the department that for the most part are unresponsive to the criticisms being levied against him. In several instances, he attempted to take credit for things he was forced to do and then did poorly. E.g., a program funded by the City Council to substitute a medical response instead of a police response to mental health calls has largely been a bust because APD routed very few calls differently. Of tens of thousands of mental health related calls, only about 200 have been diverted through a qualified mental health professional rather sending a standard police patrol.

Other examples elided specific criticisms being made: For example, the City Council directed an evaluation whether to make the crime lab independent after a series of scandalous failures at its DNA division. According to the Tatum report, Chief Manley, when he was chief of staff to Art Acevedo, intervened to stop more aggressive oversight of the DNA division, which soon thereafter was closed and essentially put into receivership. Manley includes a long list of reforms his agency was forced to do after the DNA division failed. But he doesn't identify a single step taken toward evaluating whether Austin should have an independent crime lab, which is what the City Council asked for and national best practices recommend.
In another instance, Manley suggested that, 'The Department worked with the Office of Police Oversight to create the policy and procedures for releasing critical incident videos and related information." But the OPO put out a formal objection to Manley's policy changes on bodycam enforcement, declaring, "These changes delegitimize the discipline process by trivializing conduct that has historically been treated as a significant policy violation." The Director of the OPO has also complained of"obstructionist tendencies of APD's Internal Affairs (IA)" department and alleged that APD administrators have "continued to allow investigators in IA to obstruct oversight staff."

Over and over throughout his memo we find similarly disingenuous claims. For example, Manley writes, "chaplains who perform same sex unions and relationship counseling have been made available" thanks to a new volunteer chaplain program, but he doesn't mention that was only necessary, according to the above-cited Tatum report, because of homophobic policies by the full-time chaplain against sanctioning such unions.

Another one: "The Department has partnered with community advocacy groups, such as MEASURE, to provide cadets with diversity and equity training facilitated by community members." MEASURE, it turns out, is one of the community groups which has called for Manley's ouster.

This memo was a smokescreen and any close reading of its details finds more reasons to oust the chief than to keep him. If these arguments are the best that Chief Manley and his supporters can come up with as to why he should keep his job, it looks to me like he's in a lot of trouble. And that trouble could come before October.

Monday, May 18, 2020

Blakinger scores big victory for hungry TDCJ inmates, visitation denied, why people convicted of unconstitutional statutes are innocent, and other stories

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

TDCJ to improve lockdown food
The Marshall Project's Keri Blakinger hit another home run recently with her story on what Texas prisoners are being fed during lockdown. It was sprinkled with stomach-churning contraband cell-phone pics from prisoners that corroborated years of allegations about how awful food could be when prison units are locked down. On Friday, she reported on Twitter that TDCJ has told inmate families they will begin providing raw vegetables, cartoned milk instead of powdered, and are considering how to source fruit, pizza and hot pockets. Good for TDCJ, even if it took being shamed to improve things. And thank God for Keri Blakinger!

Many prisoners denied visits, phone calls before the lockdowns
Prisoners' families have been upset during the COVID crisis that so many inmates were forbidden access to phones to call them. Recently, some on lockdown have been allowed 5 minute calls, but that's still not much. Michael Barajas at the Texas Observer reminds us that a significant portion of Texas inmates couldn't call their families and had been banned from visitation even before the coronavirus, but TDCJ doesn't track how many are banned or why. Great job, Michael! Grits readers may recall that, earlier this year, TDCJ made visitation and mail policies even more restrictive, punitive and arbitrary. It's great to see some journalistic light shed on the subject.

Texas women inmates cope with COVID
At the Waco Tribune Herald, reporter Brooke Crum provided a window into how women inmates in Gatesville and their families are coping with coronavirus restrictions.

COVID testing rates vary widely at county jails
There are wide disparities in how frequently county jails are testing inmates and staff for the COVID virus, reported the Dallas News. Harris County is testing more broadly; Dallas County, not so much. Travis County, by contrast, is testing far less frequently than either of them. The thinking appears to be that, if you do not test, you won't have to report that anyone is sick. As of yesterday, 1,314 Texas jail inmates and 234 jail staff had been reported as testing positive to the Texas Commission on Jail Standards. But because some jails are testing so few people, those numbers are surely an undercount.

Ex-prosecutor could be disciplined for withholding exculpatory evidence
Daniel Rizzo, a former Harris County prosecutor, faces an attorney discipline lawsuit for withholding exculpatory evidence in Alfred Dewayne Brown's murder case, Texas Lawyer reported. Rizzo claims he never saw the phone records which later led Mr. Brown to be declared actually innocent, though they were available in his files.

People convicted of unconstitutional online solicitation statute were actually innocent 
The Texas Supreme Court has ruled that people convicted of online solicitation of a minor after the statute was deemed unconstitutional by the Texas Court of Criminal Appeals  qualify for innocence compensation under Texas statutes. (The Legislature enacted a new online-solicitation statute in 2015, but not nearly as stringent as the original.) Grits has wondered for years about how innocence claims from these cases would be handled. Now we know.

Sunday, May 17, 2020

TDCJ population hits recent lows thanks to COVID, but the reduction is a phantom that at some point will reverse

Thanks to the Texas Department of Criminal Justice's cessation of intake from Texas county jails, the state's prison population has declined to what may be a 21st century low of 135,833. (See this report documenting monthly totals.)

Last year, TDCJ averaged 5,475 new receives per month, so the reduction is attributable almost entirely to the lack of new intake. Nobody extra is getting released.

In fact, the same report tells us fewer people may be released now than before. Some 1,806 fewer people were granted considered for parole in April compared to March, and 654 fewer approved. Many of these folks still must receive treatment services or have discharge plans approved. So that reduction wouldn't affect that many immediate releases last month. But it could set the stage for fewer releases down the line.

Grits wonders if this isn't an issue of practicality rather than policy. I've been assured by legislators that the parole board hasn't altered release policies as a function of the coronavirus. But there are only 8 parole board members and 16 commissioners who make these decisions. It's not hard to imagine that, with schools out, people's kids at home requiring supervision and schooling, difficulties conducting face-to-face parole interviews because of lockdowns, and all the other life disruptions that have come along with the COVID shutdown, workloads could have fallen not because of policy but just because those individuals couldn't process as many cases last month. That's speculation, but it would explain the contradiction between the data and official statements that release policies haven't changed.

Regardless, when TDCJ begins taking inmates from county jails again, we're no doubt going to see a big jump in their population numbers. And at some point, the dip in parole releases, combined with the delayed intake, may push TDCJ's population even above pre-COVID levels.

The report didn't give us recent enough data to say what's happening with probation revocations (much less tell us how that relates to the COVID shutdown). Parole revocations are down about 15 percent over the first four months of 2020 compared with the same period in 2019.

It's also notable that county jail populations overall have declined during the COVID lockdown, even though thousands of TDCJ-bound prisoners are stranded there who normally would have already moved on to state lockups. That means declines in crime/arrests/jail intake, combined with judicial efforts to eliminate low-risk offenders from jails, have had an even larger effect on local jail populations than the backing up of TDCJ-bound inmates.

That's good news. Grits is hopeful that local justice systems will emerge from the COVID era adopting what's been referred to by some as a "new normal," maintaining some of the policies and practices that drove jail populations down into the future, even when the virus isn't influencing decisions.  It's not like we've seen some major crime spike during this period of reduced arrests, expanded pretrial release, and lower jail populations.

Finally, Grits is surprised we haven't heard more, louder complaints from county sheriffs and commissioners over the thousands of inmates backed up in county jails awaiting transfer to TDCJ. These folks cost counties about $60 per day per person and there is no money available to cover those costs. Sheriffs raise bloody hell over the cost of parolees incarcerated over "blue warrants," and that's a much smaller number of folks.

The Governor announced local criminal-justice grants for jails to pay for medical services related to COVID, but they don't cover costs for inmates who normally would have moved on to state prisons. Look for this issue to have a higher profile as the number of state prisoners backed up in county jails continues to mount.

CORRECTION: This post originally said there were 1,800 fewer people paroled in April than March. That number represented those considered for parole. There were 654 fewer people approved. I regret the error. Thanks to Marc Levin for pointing it out: That's excellent and commendable reader behavior. :)

Friday, May 15, 2020

Fifth Circuit still sucks on prison-conditions litigation: Coronavirus edition

The US Supreme Court has declined to vacate a stay by the 5th Circuit Court of Appeals of an injunction granted to Texas prison inmates from the Pack Unit, a geriatric prison unit, reported the New York Times. The inmates had asked for improved protections from the coronavirus. Four justices were needed to take the case, but only two apparently wanted to do so. Justice Sotomayor issued a statement, joined by Justice Ginsberg. Here are some notable excerpts:
The District Court heard unrefuted testimony that, despite the prison’s claim of enhanced cleaning measures, its cleaning protocol in practice remained virtually the same. The facility neither increased the number of inmate janitors nor ensured that the existing janitors did their jobs safely and effectively. One janitor testified that, just as before the pandemic, the cleaning solution provided to the cleaning crews was frequently depleted by midafternoon, only halfway through a shift. Each day he received only one pair of gloves to share with his co-janitor, an arrangement medical experts described as tantamount to no gloves at all.
The facility’s failures to comply with its own safety protocol became even clearer after [inmate Leonard] Clerkly’s death. Prison policies required that any inmate showing signs of Covid–19 be “‘triaged’” and “‘placed in medical isolation’” and that all areas used by the symptomatic inmate be thoroughly disinfected. Id., at *11. Yet even though Clerkly had difficulty breathing and died only a few hours after being transported to the hospital, the prison “made no representations” to the District Court that “they identified Mr. Clerkly as symptomatic, evaluated him for potential COVID-19 infection, or isolated or treated him for COVID-19 at any point before his transport to the hospital on the day of his death.” Ibid.

In fact, the prison “did not implement further precautionary measures until three days after Mr. Clerkly’s death.” Ibid. In the meantime, while the prison waited for a positive Covid–19 test that seemed certain to come, “countless inmates were knowingly exposed to a serious substantial risk of harm.” 

Having heard testimony from several witnesses from the Pack Unit and from prison experts who declared the Pack Unit practices “woefully inadequate,” the District Court held that applicants were likely to succeed on their Eighth Amendment claim. Id., at *12. The court noted the “obvious” risk of Covid–19 to the older men in the Pack Unit and reasoned that the prison’s failure to take basic steps, many of which were required by its own policies, evinced deliberate indifference. Id., *10, *13. The District Court then ordered the prison to mitigate the harm to inmates, including through some measures recommended by an expert witness who had managed prisons himself. Id., at *6–*7, *9–*12; 2020 WL 1899274.
Of particular interest was Sotomayor's analysis of the Fifth Circuit's decision and how they (perhaps improperly) ignored detailed fact finding from the lower court. Long-time watchers of this court will not be surprised, but I'm still glad someone said it: 
Despite the District Court’s detailed, careful findings, based on live testimony and the court’s own visit to the Pack Unit, the Fifth Circuit stayed the injunction. The Fifth Circuit noted that the prison had submitted evidence of “the protective measures it ha[d] taken as a result” of the Covid– 19 pandemic, and so the question was simply whether the Eighth Amendment required the prison “to do more.” 956 F. 3d, at ___ – ___.1 But in crediting the prison’s assurances, the Fifth Circuit did not address all of the District Court’s factual findings that the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates.2 See Farmer v. Brennan, 511 U. S. 825, 842 (1994) (noting that deliberate indifference is a question of fact often made out
by “inference from circumstantial evidence”). The Fifth Circuit may have acted outside its authority in refusing to defer to those factual findings. See Anderson v. Bessemer City, 470 U. S. 564, 573 (1985). Similarly, while the Fifth Circuit faulted the District Court for issuing an admittedly exacting injunction, that injunction too was rooted in equally detailed factfinding regarding the prison’s failure to live up to its promises.
Similarly worth noting was the discussion of the 5th Circuit's reading of "exhaustion" provisions in the Prison Litigation Reform Act, which, even when interpreted correctly, have shut down prison-conditions litigation all over the country in problematic ways. If TDCJ grievance procedures are effectively a "dead end," wondered Sotomayor, do they really count as an "available" remedy?
Also concerning was some of the Fifth Circuit’s language regarding exhaustion. This Court has made clear that the PLRA requires exhaustion only of “available” judicial remedies. Ross v. Blake, 578 U. S. ___, ___ (2016) (slip op., at 8). “[T]he ordinary meaning of the word ‘available’ is ‘capable of use for the accomplishment of a purpose.’” Ibid. (some internal quotation marks omitted). Thus, when a grievance procedure is a “dead end”—when “the facts on the ground” indicate that the grievance procedure provides no possibility of relief—the procedures may well be “unavailable.” Id., at ___ (slip op., at 9).

The Fifth Circuit seemed to reject the possibility that grievance procedures could ever be a “dead end” even if they could not provide relief before an inmate faced a serious risk of death. But if a plaintiff has established that the prison grievance procedures at issue are utterly incapable of responding to a rapidly spreading pandemic like Covid–19, the procedures may be “unavailable” to meet the plaintiff’s purposes, much in the way they would be if prison officials ignored the grievances entirely. Ibid. Here, of course, it is difficult to tell whether the prison’s system fits in that narrow category, as applicants did not attempt to avail themselves of the grievance process before filing suit. But I caution that in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer, the PLRA’s textual exception could open the courthouse doors where they would otherwise stay closed.  
Sotomayor added:
As the circumstances of this case make clear, the stakes could not be higher. Just a few nights ago, respondents revealed that “numerous inmates and staff members” at the Pack Unit “are now COVID-19 positive and the vast majority of those tested positive within the past two weeks.” 
Finally, her commentary concluded:
It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales.
That's all well and good, but hope is not a medical policy and won't address the unrefuted problems identified by the District court at the Pack Unit. This is incredibly disappointing. 

Tuesday, May 12, 2020

The high cost of hubris: Ransomware attack sidelines online presence of Texas courts

Somebody successfully launched a ransomware attack on the Texas appellate court system. State officials decided not to pay, so now it's impossible to access hand-down lists, opinions, orders, etc., online for the Court of Criminal Appeals, the Texas Supreme Court, or any of the 14 intermediate appellate courts. The OCA also operates computer systems for a slew of smaller agencies like the Texas Indigent Defense Commission, the Office of Capital and Forensic Writs, the Forensic Science Commission, and the State Prosecuting Attorney.

Readers will recall that, last year, Potter County (Amarillo) was struck with a ransomware attack. They also refused to pay and as of last fall, it was unclear if they would ever be able to cover many records from their courts and law-enforcement systems. As in this case, they called in "law enforcement and the Texas Department of Information Resources (DIR) to investigate the breach," but the perpetrators were never caught. This created huge disruptions that are still reverberating.

Grits understands the defiant impulse to not pay ransom. But Amarillo's experience shows that decision can end up cutting of one's nose to spite one's face. Potter County would have been better off paying and calling it the cost of an education, and I suspect, when all is said and done, the same will turn out to be true for the Texas Office of Court Administration.

Thursday, May 07, 2020

Data on waiting lists for TX competency restoration

The Appropriations bill during the last Texas legislative session required the Health and Human Services Commission to periodically report on waiting lists for mental health services. Here's the chart from the report related to forensic beds, where mentally ill folks are sent for "competency restoration" before they can stand for trial, plea, etc.:

This has been a problem now for many years. Once someone has been deemed incompetent, they can't even plea out and must typically remain incarcerated until they can get into a state hospital and receive treatment. For maximum security beds, that can take nearly a year. And that's just the wait to get in the door, it doesn't include treatment time! The Lege at one point created pilot programs to do outpatient competency restoration, but that system never scaled up to solve the problem.

TDCJ inmates on COVID lockdown now have access to phone service

Grits had earlier discussed how COVID lockdowns at TDCJ were keeping inmates from communicating with their families. Apparently phone access has been restored for these units. TDCJ has posted this on the COVID FAQ page on their website:
The Offender Telephone System (OTS) is now operating 24 hours a day 7 days a week. Offenders are being escorted to phones when they are available even after traditional hours. Each offender is receiving 2 free 15-minute calls a week which reset every Tuesday. Disciplinary restrictions have been suspended. Offenders who do not have access to the OTS are being escorted to hardline phones in the units to make calls.
This is excellent news. Given that roughly a third of TDCJ prisoners are presently on lockdown over the virus, with more than 21,000 on medical restrictions because they had contact with an infected person, limiting phone access was untenable and cruel. 

UPDATE: Our pal Keri Blakinger tells me she doesn't think this is true for all units. Will update when I learn more.

MORE: Blakinger spoke to TDCJ spokesman Jeremy Desel who told her the FAQ page was somewhat overstated. Here's what he told her:
"I won’t say all but most of the precautionary lockdown units are doing phone access in limited amounts while going to and from showers. So they found a way to manage that to give a five-minute phone call. It’s not logistically feasible every single unit. But the majority of units people are at least getting SOME phone calls."

Wednesday, May 06, 2020

CCA passes on judging forensic hypnosis, paroled but still imprisoned, Ken Paxton's 'lonely and misguided' crusade, and other stories

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

On the absurdity of keeping 15k already-paroled prisoners in TDCJ so they can do treatment by correspondence
The Marshall Project's Beth Schwartzapfel has a story on an ongoing problem that's taken on new life in the coronavirus era: More than 15,000 Texas prisoners have already been paroled but can't leave prison because they haven't completed required treatment programming and the state underfunds it so badly there's a massive waiting list. This is pointless and stupid in the best of times, but at a moment when 1,299 TX prisoners have been diagnosed with COVID-19 and another 48,674 inmates are on precautionary lockdown because of the virus, it makes even less sense. According to the article, TDCJ has already stopped doing these treatment programs in person and has switched to correspondence courses where prisoners work on written packets in their cells. If that's the case, why not parole them and let them complete the packets at home?

Ken Paxton's 'lonely and misguided crusade' against Rosa Jimenez
Attorney General Ken Paxton won't drop his federal appeal in Rosa Jimenez's habeas corpus writ, even though DA Margaret Moore has finally, belatedly, acknowledged that the evidence used to convict her was flawed and she deserves a new trial. What a strange situation! Moore's position is hardly progressive. She insists she will retry Jimenez despite the fact that the forensics used to convict her was flawed and there was no other accusatory evidence in the case. But Paxton's position is nonsensical; a Statesman editorial dubbed it a "lonely and misguided crusade." All sides have briefed Judge Lee Yeakel, with Paxton arguing for maximum harshness. Her attorneys, by contrast, "urged Yeakel to allow Jimenez to leave prison on a personal recognizance bond while the appeal continues, arguing that COVID-19 puts her life at risk because she has stage 4 kidney disease." Grits has no idea what Paxton thinks he's trying to accomplish here. It's one of the weirdest legal postures I've seen a Texas AG take in the three decades I've been following state politics.

Man exonerated of drug charges after DNA evidence disproved faulty eyewitness testimony 
In Houston, James Harris has been exonerated of drug charges eleven years after his false conviction based on erroneous eyewitness identification. DNA testing finally exonerated him. Long-time Grits readers know that the Legislature enacted solid guidelines for how police conduct eyewitness identification procedures, but Texas courts have ruled that such testimony still can be used to convict even if police do not follow them. Harris was both more persistent than most people, pursuing the case for years after he got out of prison, and also incredibly lucky that DNA evidence, which is unavailable in most cases, was able to exonerate him. Most people who're falsely convicted under these circumstances have no way to clear their name.

CCA judges decline to judge forensic hypnosis
The Texas Court of Criminal Appeals declined to rule on the merits of forensic hypnosis in the case of Charles Don Flores. Instead, they said he could not use the state's junk-science writ to challenge his conviction, but did not articulate a reason why - classic outcome-oriented judging to uphold an execution from the Government-Always-Wins faction on the court. See their ruling, coverage from the Dallas Morning News, and prior Grits coverage of forensic hypnosis rounded up here.

COVID cases in Texas jails continue to skyrocket
As the number of state prisoners diagnosed with COVID continues to rise, so too does the number in county jails. As of Monday, 5/4, Texas jails were up to 980 inmates diagnosed with the virus, according to the Texas Commission on Jail Standards, up from 142 on April 17. That's a 590% increase in about 2-1/2 weeks. Harris County, which leads the state in inmates diagnosed with COVID at 449, just reported its first inmate death from the virus.

Overdoses spike nationally
Grits had mentioned earlier Travis and Williamson Counties had seen a spike in opiod overdoses. It turns out, the same is true nationwide, in part attributable to lack of access to treatment services thanks to the COVID shutdown. This article from The Daily Beast provides more detail.

Tuesday, May 05, 2020

Top Ten Failures of Austin Police Chief Brian Manley: A Compendium

After more than two dozen community groups called for the firing of Austin police chief Brian Manley and assistant city manager Rey Arellano in the wake of the killing of Mike Ramos, some apologists for the department have portrayed this position as impulsive and hot-headed. Grits finds this rather insulting, given the long list of grievances to which advocates were reacting.

OTOH, I realize that local Austin media coverage of the police is so shoddy and one-sided, most folks likely have never seen the full case made. So let's do that now. The issues go much, much deeper than this one shooting.

Mike Ramos was an unarmed black man who video shows was standing next to his car with his hands up when he was first shot with a bean-bag round from a shotgun by a rookie cop named Mitchell Pieper, three months out of the academy (more on that in a moment). Ramos dove back into his car and tried to drive away from police, but a second officer - Christopher Taylor, who killed someone else under questionable circumstances less than a year before - fired three shots with a rifle. Ramos died from his wounds.

Ramos killed because of policy change by Manley
In 2012, reported the Austin Statesman, then-Chief Art Acevedo changed APD policy to forbid officers from shooting at fleeing vehicles unless they were part of a unit specifically trained to perform that function, or the person fleeing had allegedly inflicted serious injury or death (not the case here). After becoming chief, with little fanfare and zero public discussion, Brian Manley changed that policy to fully authorize such shootings by any officer, anytime. If he had not done so, Mike Ramos likely would be alive today.

Resistance to police-academy reforms
The fact that Officer Pieper, a rookie three months out of the academy was the first to fire on Ramos - even if using a bean bag round - instead of engaging deescalation tactics, speaks to another major departmental failure under Manley: Failure to reform the department's cadet training practices. Ten former cadets have sued the department alleging they were treated abusively and taught to use abusive tactics. After allegations of racism arose at the agency last fall, the city council passed a resolution directing the APD to hold off on launching a new training regimen until investigations were performed analyzing officers' internal communications and social media postings for evidence of racist bias, analyzing the basis for scores assessing cadets, a comprehensive assessment of recent use of force incidents, and an assessment of litigation against the department related to use of force incidents over the last ten years.

The resolution called a halt to the planned, June cadet academy until curriculum changes were made, with community participation in the new training reforms. But Chief Manley and the City Manager are insisting on moving forward with a police-academy class in July based on a fancifully optimistic timeline for finishing their analysis, developing a new curriculum and soliciting public participation in the process. Clearly Officer Pieper's training did not prepare him to manage situations like he found himself in with Mike Ramos using any method but violence. Regardless, APD leadership seems hell bent on plowing ahead with the next cadet class.

Finally, after state law in 2017 mandated police officers receive deescalation training, Austin PD chose to separate deescalation discussions from its "use of force" module in academy classes. Rather than teaching deescalation as a way to minimize harm from use-of-force tactics, which is how national experts view it, it's taught separately in a "communications module." Local advocates and the cadets suing the department have complained about this, but such criticisms have fallen on deaf ears.

Manley's disinterest in racism allegations led to abuse of system, feelings of betrayal among officers, public
After allegations emerged that high-ranking APD officers used racist language among themselves and via text messaging, the city hired an attorney to independently investigate the matter. This attorney discovered that, "By several accounts, [Assistant Chief Justin] Newsom's use of racist language was well known throughout the Department as was the use of such language by other officers who were known to be close friends with AC Newsom and used such language openly and often." In particular, Newsom had gone to Chief Manley to tell him he was afraid certain text messages from him might be revealed in ongoing litigation, and informed the chief that he would resign from the force if they were made public.

But Manley did not initiate an investigation, even after receiving written complaints making related allegations. Wrote the investigator, "Chief Manley had reason to inquire as to AC Newsom’s conduct based on a self-report of text messages that were troublesome, about which AC Newsom indicated he would leave the Department if they became public, and two separate allegations of racist text messages and comments occurring about one month apart." As a result, Newsom was able to resign and receive full benefits and the incident could not be investigated by Internal Affairs. Numerous officers told the investigator this caused a "feeling of betrayal" and they considered Newsom's resignation "an abuse of the system." But it happened because Manley failed to act.

Blaming rape victims when APD was caught fudging sex-assault stats
While Manley was chief of staff under Art Acevedo, the department removed the head of the Sex Crimes Unit because she refused to change case files to claim detectives had closed the cases when they had not. Later, after Manley was Chief, a national podcast reported on her ouster, revealing that Austin PD had improperly closed numerous rape cases as "exceptionally cleared." Manley responded by blaming the rape victims, saying the problem was they wouldn't cooperate with police. But when the Texas Department of Public Safety analyzed a sample of cases, they found a third of them had been improperly closed. What was improper about it? Results were miscategorized to say the victims chose not to cooperate when that wasn't true. As the political pressure mounted, consultants were hired to study the problem. Assistant city manager Rey Arellano announced their recommendations wouldn't be ready until 2022. There has been zero accountability for this embarrassing episode, aside from ousting the police sergeant who refused to fudge the numbers in the first place.

APD complaint process changed to undermine transparency, reforms from new police contract
Earlier this year, Manley revised the department's complaint process in ways that minimized significant transgressions and reduced transparency around police misconduct. Farah Muscadin, who leads the city's Office of Police Oversight, wrote in a letter that the changes created "new obstacles designed to trivialize substantive complaints and disguise them under newly created categories that APD has created against OPO's recommendation." She also complained of "obstructionist tendencies of APD's Internal Affairs (IA)" department and said APD administrators "continued to allow investigators in IA to obstruct oversight staff." The response to these allegations from APD and city management? Crickets. 

Downgrading bodycam violations and hiding them from the public
Also earlier this year, Chief Manley changed departmental policies to downgrade violations of the department's bodycam policy (basically obscuring or turning off cameras to avoid recording alleged misconduct) and made those violations much less transparent. Again, Muscadin issued a formal objection: "These changes delegitimize the discipline process by trivializing conduct that has historically been treated as a significant policy violation." The revisions made violations of the policy subject only to oral reprimands. Since the new police contract had for the first time made written, but still not oral, reprimands public records, this also amounted to a move to radically reduce transparency around these violations.

In addition, last year, at the behest of the city council, APD pledged to revamp its bodycam video-release policy, a process in which various community groups spent months providing input. Those changes then laid dormant for many months and were never finalized. Only in the last few days, after it became clear that the chief's job is now on the line, has Manley's chief of staff begun reaching out to say they may, still, finally implement a video-release policy after all. We shall see.

Snubbing the Office of Police Oversight
Not only did Chief Manley implement terrible policies on public complaints and bodycams, he did so in a way that intentionally avoided allowing the Office of Police Oversight to meaningfully comment on the policies before they were implemented. In the case of the complaint policy, according to the above-linked objection, Manley sent Muscadin a copy of the proposed policy on a Tuesday with no prior notice and gave her 24 hours to respond, a timeframe with which she could not reasonably comply. In the case of downgrading bodycam violations, the OPO was notified of the policy change on the same day it took effect.

In general, as mentioned above, Muscadin feels Manley has "continued to allow investigators in IA to obstruct oversight staff" from her office. Muscadin negotiated with APD leadership to formalize how the relationship between her office and IA should work under the terms of the new contract, developing proposed Standard Operating Procedures (SOP). Those SOPs have been sitting on Manley's desk, unsigned, for nearly a year.

When Manley was hired, City Manager Spencer Cronk issued a memo detailing how the chief would be evaluated in the future. One of the elements cited was that Manley should "[b]e supportive of ways to enhance police oversight and officer accountability opportunities within and outside of any meet and confer agreement." Cronk expressed his expectation that, "The Chief is supportive of the current Police Monitor's role and expanding that function in the future." Obviously, those expectations have since been dashed on the rocks. Now, we'll learn whether this was ever really something the city manager cared about, or if it was included in the memo just for show. Manley has done little but undermine and snub the OPO at every turn.

DNA lab screwups, no progress on independent crime lab
In fall 2016, in the wake of Austin's DNA lab being closed for incompetence, Manley hired a chief forensic officer, whom he personally interviewed, who it turned out was academically unqualified for the job. No one at APD had bothered to evaluate his academic record.

During the same period, the Austin Chronicle reported that the City Council directed the City Manager to assemble a "team of experts" to "assist Council in considering the benefits of an APD-run lab as opposed to one that would operate outside, independent of the department." This is a best practice which was a central recommendation of a 2009 report on forensic error from the National Academy of Sciences. Despite pledges by assistant city manager Rey Arellano, that analysis has never been produced. In addition, the City Council authorized funding for a consultant, the Quattrone Center, to make recommendations for future reforms and best practices related to the DNA lab. Arellano told the council in a memo the report would be ready by September 2019, but it was never released and prospects for reform have subsequently stalled.

Notably, the Tatum report revealed that Chief Manley, while chief of staff to then-Chief Art Acevedo, directly intervened to stop the commander over the DNA lab from looking into problems with that division, ordering him to "leave it alone." Manley acknowledged he had done this, portraying the incident as a conflict of personalities between the commander and the crime-lab director. But the fact that mere months later the DNA lab was closed in disgrace indicates that was at best a bad judgment call and at worst a cover up for serious crime-lab failures.

Austin PD to overdosed addicts: Just die
Austin has recently seen a spike in drug overdoses, with five overdose deaths in just two weeks in April, reported KXAN. (There were 323 overdose deaths in Travis County overall in 2019.) But Chief Manley this spring returned a donation of Narcan - a nasal spray that effectively, instantly counters the effects of an overdose - that was intended to give officers in the field tools to save these folks. Instead, he insisted only paramedics should administer it, although police around the country have employed it with no problems. The donation, worth a quarter of a million dollars, was enough for every officer on the force to be equipped with this life saving drug.

APD promoting harmful drug-war policies
Under Chief Manley, APD's scorn for drug addicts went beyond just not caring whether they lived or died. Recently, the Texas Harm Reduction Alliance, the Texas Criminal Justice Coalition, Grassroots Leadership, and the Civil Rights Clinic at the UT Law school backed out of participation in a city-county grant application aimed at promoting pre-arrest diversion in drug cases, claiming Austin PD was acting in bad faith. Here's a notable excerpt from their email:
In 2018, our organizations began a two-year project to better understand why Austin/Travis County produced a 66% increase in new felony drug possession cases within a five-year period despite no discernible increase in the drug prevalence rate. Our intention was to identify the locations and circumstances where pre-arrest deflection programming would have the greatest impact on reducing arrests and connecting people with meaningful harm reduction services. We remain committed to that goal, and we are grateful to have had the opportunity to work with city/county officials on a new vision for addressing substance use within our community.

What our study demonstrated, however, was that the increase in drug arrests was generated through police practices long believed to exacerbate racial disparities. Moreover, the arrests resulted in lengthy periods of detention, loss of income, increased homelessness, loss of immigration status, and collateral consequences that create lifelong barriers to employment and housing. In short, our study showed very clearly that the criminal legal system actors were doing harm.

Yet, the tone and content of the grant application shifts the responsibility entirely to the individual at risk of arrest for drug possession, not to the system actors who have done such harm to people suffering from substance use disorder. We provided lengthy comment on the current draft, but we simply do not see how these issues can be addressed satisfactorily before the grant application is due.

We believe that it is time to press reset. We urge the Austin City Council and City Manager to take decisive action to change the culture of law enforcement in this city.
Grits is limiting this to a top-ten list but could easily go on. Undermining the city council's homeless measures in public statements instead of implementing their directives. Continuing to arrest on low-level marijuana charges after the county attorney said he would not file charges in such cases. The fact that the department has not posted a use-of-force dataset online - a practice implemented by his predecessor - in more than two years. Declining clearance rates for property crimes, which have worsened on his watch. The continued de-prioritization of civilian staff in budgeting while pushing to hire more uniformed officers who end up doing clerical work because they have little support. The list could continue for quite a while. Perhaps in the future I'll come back to add a Part Two to this post.

To Grits, though, just the failures documented here justify the City Manager firing Brian Manley and seeking out a chief more in tune with the Council and community's values and priorities. As so many local organizations opined in their letter last week, it's time for this man to go.