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!

Mandy Marzullo: Hi, this is Amanda Marzullo, and welcome to Just Liberty's Reasonably Suspicious Podcast with my cohost, Scott Henson. Scott, it's been three months since we last produced one of these, and since then you're looking a bit more svelte. Do you care to share any dieting tips with our listeners?

Scott Henson: Sure. I think anyone could do this under the right circumstances. Unfortunately, those circumstances involved receiving a throat cancer diagnosis then radiating my neck until my taste buds were all shot. My throat was inflamed and I could no longer eat solid foods. I probably could have lost a lot more, but I had a feeding tube installed about halfway through and that's where I'm now still getting most of my calories. But with that regimen, I was able to drop about 60 pounds in just over two months and I'm now at a weight I haven't seen since my senior year in high school, just in time for swimsuit season, so I do feel like if you're results-oriented...

Mandy Marzullo: You got the outcome you were looking for there.

Scott Henson: We got the outcome, yes.

Mandy Marzullo: Well, you look great and I am so glad that you're starting to feel better and starting to climb back into the saddle.

Scott Henson: Thanks. In all seriousness, I've had great support from a lot of people, starting with my wife, Kathy Mitchell, and while not back to 100% yet, I'm really happy to be well enough to do this with you. I've missed getting to work together and hang out.

Mandy Marzullo: Me too. Yeah, I've missed you quite a bit. In our top story, more than two dozen community groups have called for the firing of the leadership team at the Austin Police Department in the wake of a shooting of an unarmed man named Mike Ramos. Bystander video shows Ramos was standing next to his car with his hands up when a rookie officer who was just three months out of the academy fired a shotgun loaded with a beanbag round at him. And for listeners who don't know what that is, that literally is just a beanbag that was shot out of the gun. Ramos staggered back into his car and attempted to drive away from the police, only to have another officer shoot him to death with a rifle. This officer was one of three who had shot to death a university professor in the midst of a mental health crisis just 10 months before.

Scott Henson: In the wake of this tragedy, the Austin Justice Coalition, Just Liberty, and more than two dozen other groups put together an extensive letter to the Austin City Council and city manager Spencer Cronk, calling for the ouster of Chief Brian Manley, his chief of staff Troy Gay, and assistant city manager Rey Arellano, who oversees the public safety area. Their complaints were far broader than just the Ramos shooting and included an array of lingering policy issues at the department.

Mandy Marzullo: The Austin Justice Coalition recently held an online Zoom forum in which 30 individuals gave reasons why Chief Manley and his team at APD should be fired. We won't run all of it, but wanted to share some excerpts to give everyone a sense of that conversation. AJC asked Scott to lead off the show, and here's what he had to say.

Scott Henson: For me, in the past six months we've hit a tipping point where it really is time for us to just wipe the slate clean and start over. I remember six months or so ago a bunch of us were sitting in Mi Madre's restaurant back when you could sit in restaurants, and Chris and I had a dispute, well, is it time yet for Chief Manley to go? Chris Harris. And I was saying well, we have so many big policy things going that we're trying to accomplish and so many bigger fish to fry, maybe it's not quite time yet. Since then, Manley has repeatedly issued these terrible new policies that either we're just finding out about or that have only happened in the last few months, that sort of at the beginning of the COVID period he changed the policy on police complaints basically to recategorize complaints so that many of them will no longer be public record, so the public can't really know about any of them anymore or many of them anymore.

Scott Henson: A month or so later, they come out with a new policy on body cams so that when officers, "Oh, just happened to have my hand over the body cam when the pivotal thing happened," or, "oh, it just fell off at the moment when I started beating this guy with my club," all of a sudden those become oral reprimands that the public can't know anything about anymore and this is explicitly undermining victories that AJC and all other groups that supported changing the police contract had won. One of the biggest changes that we had gotten during that period was making written reprimands, which used to be secret, public so that we now had a bigger window into police misconduct. What we're seeing is one-by-one Manley chipping way at that new transparency that we'd found.

Scott Henson: And then for me, the final straw was at the Mike Ramos shooting, Mike Ramos of course had jumped into his car and began to, I would say flee, really he was driving down a little dead end, he was trying to get away from the people who were firing at him, and was shot dead. Well, in 2012, Art Acevedo had changed Austin police policy so that it was against police policy to shoot at a moving vehicle. Well, we learned for the first time publicly after this episode that Manley, one he'd gotten into office, had changed that policy back. For me, it's no longer just the case that this is some police chief who's recalcitrant, who is resisting change that we're trying to enact, he's constantly creating new, worse policies that are now additional things we have to fight and that's too much. We need someone who's supportive of reform. Just being resistant is bad enough, but if you're actively making thing constantly worse then to me it's a got to go situation, and that's where we are to my mind with Brian Manley. Next, Doug Smith from the Texas Criminal Justice Coalition described the sources of racial disparity in Austin PD's drug enforcement practices.

Doug Smith: I'm the senior policy analyst with Texas Criminal Justice Coalition, and over the past couple years we have been studying the extraordinarily high rate of arrest for possession of a controlled substance. The rates were so high that between 2012 and 2017 there was a 90% increase in new felony drug possession cases brought into our district courts. That was the less than a gram [inaudible 00:07:21] felony amount. The amount was so much that Travis County was actually intending to build a jail facility just to house the number of women coming into the facility.

Doug Smith: So we stopped and we began to work with Grassroots Leadership, Texas Harm Reduction Alliance and the Civil Rights Clinic at UT to study arrest patterns by Austin Police Department. So we went through 2900 arrest affidavits and we looked at where people were being arrested, under what circumstances that they were being arrested, and some of the patterns shouldn't surprise us at all, it was in areas of town that are primarily people of color, lower income areas, but the one pattern that was the most alarming was the circumstances why people were being arrested, and by and large more than 50% of the cases were as the result of a traffic stop. People were being stopped for some type of pretextual reason, either failure to signal, no registration, and then the police officer found some reason to look into the vehicle, like, "I smell marijuana," or something like that.

Doug Smith: We actually sent teams out on ride-alongs with the police officers and some of them referred to their job as hunting criminals. One of the police officers actually took the time to show one of our volunteers his hunting rifle that he kept in the back of his car. What they did mostly through the day was run plates. They ran plates for people not paying traffic fines and looked for people coming out of certain apartment complexes, and we realized that we don't have a drug problem in Travis County, in fact the rates of drug use in communities of color are no higher than they are in white communities. The big difference is that people in West Austin become clients of substance use treatment centers and people in lower income areas of town tend to become offenders according to the criminal legal system. So we realized that this isn't about drug prevalence, it's not about us needing to find some level of diversion, it's about over-policing. We've got too many officers, they're saturating communities and making communities feel like they're an occupying force and they're actually doing harm to the community.

Doug Smith: We'd entered into discussions with Austin Police Department and district attorney Margaret Moore on doing some type of drug deflection program. So what that would mean is that instead of arresting people, they would be referred to a harm reduction provider so that someone could find out what people's basic needs are. It wouldn't be coerced treatment, it would be meeting people where they are and helping to meet their needs. So those negotiations fell apart particularly after the recent shooting and all of the allegations of racial disparities and racial discrimination within the top brass.

Doug Smith: Moreover, the type of approach they were looking at, they were looking at instead of harm reduction they were looking at putting people through extended programming where people had to sort of make amends to the communities, and we'll tell you that no one in West Austin who has a substance use disorder is being asked to making amends with their community, they're being directed into appropriate community-based services, so it's just completely inappropriate. They weren't willing to make the change and be harm reduction-oriented, and quite frankly the root of the issue is police saturation and over-policing. If police want to be true partners in the community then they're going to be targeted and we're going to have fewer police officers and we're going to build up our system of harm reduction and economic development within our community. We don't need more police leads, we need more people thriving in our communities.

Mandy Marzullo: Amanda Lewis from the Texas Association Against Sexual Assault described a disrespectful victim-leaning culture at Austin PD surrounding rape cases.

Amanda Lewis: My name's Amanda Lewis. I am one of the co-founders of the Survivor Justice Project. I sit on the Commission for Women and have for the last five years and I work for the Texas Association Against Sexual Assault and I definitely want to speak from my truth and my experience. I have been working with the city on sexual assault system accountability issues since 2015, 2016 with SJP along with other community partners, and when we first got started we were looking at a tremendous mismanagement of sexual assault kits or rape kits, so a large backlog, about 4,000 kits, DNA lab was closed, all these issues not only significant for survivors hoping for accountability and justice, but also just for the larger community that depends on that evidence and depends on it being done right.

Amanda Lewis: Since then, it's been a challenge working within the city. We've been successful in some ways, but not without consistent pushback from APD. Of course Chief Manley at the time was chief of staff and he had an opportunity when he became the chief of police to try to actually listen to the voices of survivors and advocates and say, "Okay, I didn't do this, I inherited this. How do we get to the bottom? Let me listen to my community," and I think instead of doing that he has taken every opportunity to be defensive, double down on previous mistakes to shift blame, I would call it victim-blaming when you say it's really the survivors not reporting or not wanting to go forward that's the cause of the problem. That's not the case.

Amanda Lewis: I'm a military girl and we have this belief about leadership that good leaders take accountability and responsibility. It stops with you. And he consistently wants to push that blame around, and that's not a leader that can be honest and open about the changes that need to be made in his department, whether it's the sex crimes unit or other units. So we have been fighting for accountability and transparency within APD, we have pushed for an evaluation of the sex crimes unit so we can understand the issues that are coming up for survivors as they move through that system, and at every turn we've gotten pushed back from the chief of police and we've gotten pushback from Rey Arellano who has made it his goal to make sure that there's an appearance of community participation but not actual participation. And so I think the question that I have for our leadership and why we need another leader is who are we protecting? Who gets to be safe? This is one of the safest cities in America, but who gets to be safe if you can't the voices of victims seriously and black and brown folks are in danger of murder. That's a question that I would have for our leaders, and I think that answer [inaudible 00:14:54] us to the need for new leadership.

Scott Henson: Next, Sonja Burns, a respected local mental health advocate, described the half-hearted implementation of a mental health diversion program that Mandy and I discussed on the podcast when it was created.

Sonja Burns: I am concerned because there was a lot of push for community input in how we were designing the mental health response after the Meadows Report showed how many calls are coming through 911 requesting APD regarding a mental health call. Other entities had gotten involved and there was this pushback of how we were going to do everything, and current leadership decided that everybody would be trained as a mental health officer. I will not deny that I don't think that that is somewhat appropriate, that everybody should have that training, but they should not all be considered mental health officers because I talk to police all the time and a lot of them actually don't want to be mental health officers. That is actually an important unit if we are triaging calls appropriately.

Sonja Burns: So with that decision to do that and lack of transparency in what that training is looking like and what sensitivity to cultural, racial diversity there is across this Austin community in that training, I have a lot of concerns. I was just in a meeting with assistant chief Joe Chacon who said, I believe it was a week ago, that since they have now placed the clinician in the call center, the 911 call center, where nobody's been actually able to respond to my questions about how are they integrated into that call center, it doesn't look like they're seeing what EMS is seeing, APD, fire. In the data they have so far, between December 15th and May 1st they identified that 15%, so 19,000 calls of the 126,000+ were mental health related. Of those 19,000, 200 were referred to the clinician who was sitting in the call center.

Sonja Burns: Today I actually, in between calls, reached out to San Antonio because they also have integrated mental health into their system and they were shocked at that number and actually just asked me what is the purpose of the clinician. So I'm just really concerned about how we are triaging those calls appropriately because we know that too many people end up incarcerated when there's a mental health crisis because of the escalation that happens when there's the intervention of an office in uniform. We have a wait list across the state of Texas right now of close to a thousand people in county jails waiting for a bed in a psychiatric facility. 56 of those people are in Del Valle. One has waited over 460 days, and I'm just concerned because there isn't transparency and accountability, and that is how we're going to move forward.

Mandy Marzullo: Adding a personal perspective to Sonja's policy critique, a woman named Abie Ikhinmwin, and Abie, if you're listening, I am so sorry if I butchered your name, gave a horrifying account of what happened to her when Austin police came to her home for a mental health wellness check. This was exactly the type of situation the diversion program was supposed to avoid.

Abie Ikhinmwin: In 2018, my therapist, who is still my therapist today, called APD to do a wellness check on me in my home. They came to my house and instead of them taking me somewhere, Shoal Creek for instance, they treated me as if I was a criminal. A lot of people have talked about the lack of training, the deescalation tactics which are, let's be real, there are no deescalation tactics which is why we see the issues happening that we see now. So these cops come, they first of all didn't know where they were supposed to be taking me, they had no idea where Shoal Creek was. They took me out of my home, no shoes. I wasn't a threat, nothing about the situation was threatening, my therapist simply called for a wellness check and they treated me as if they were intervening a crime.

Abie Ikhinmwin: I was pulled out of my home, no underwear, no shorts, a shirt that was just below my bottom, and instead of... We just started driving and I'm handcuffed. We go to the prisoner ward of the Dell Children's center that is built downtown, or the Dell Seton rather, and they have me out there with handcuffs and they're just like, "We have this girl here," and the nursing staff was like, "well, is she a prisoner?" And they were just like, "Yeah," and they literally dropped me off and left. That turned, and I immediately and throughout the entire time was saying and kept reasserting the fact that A, I'm not a criminal and everything that they were doing was incorrect. So even if they had an inkling like, "Oh, this is the right answer," they knew. I was telling them, the staff at the hospital, they were telling them.

Abie Ikhinmwin: So they end up bringing me into this hospital ward, walking me to a chair that people that receive the death penalty get. So I'm strapped at my arm, at my feet, at my neck. Three grown men, four grown men, are holding me forcibly and I'm repeatedly saying, "I shouldn't be here. I'm not on medication. I don't know why you guys are trying to administer medication." And it just turned into a volatile assault that was incredibly traumatic. I ended up being there for almost, well 14 hours. It was devastating. It was devastating, and there was no accountability for the police. What I really want to stress is the demonization of minorities and mental illness in our society, but especially in Austin. Especially in Austin.

Scott Henson: Finally, listen to Nakia Winfield, who ran the Undoing Racism training that Chief Manley and his leadership team all went through in the wake of racism allegations among department management.

Nakia Winfield: My name is Nakia Winfield. I am part of Undoing Racism Austin, and I had the unique position of being a resource trainer when most of APD's admin went through Undoing Racism, and just that was an experience just because you've gone through a training does not mean that you have internalized any of the lessons from that training, does not mean that you are held accountable for the new information that you have received during that training. If that was the case then we would have a very different police department because I was also there when Manley went through his training, and part of what we talk about in Undoing Racism is the idea that racism is race, prejudice plus power, and it's not about mean people doing mean things. There is a system, and if your outcomes are racist then that means that your system is racist.

Nakia Winfield: I say all that to let you know that Manley has the tools and the framework given to him so that he could have that point of view as well, and yet what we see with the outcomes and what we see with the policies in the police department is a lack of accountability and an emphasis on like, "We'll just be nice to individuals and that will get rid of racism."

Nakia Winfield: So the work that I do is about complexity theory, it's based on complexity theory and systems accountability. For that, we look at patterns in order to see what we can expect for the future. The Austin Police Department has a culture that is not interested in accountability to community. You can see that with Breaion King and the outcomes of that. You could see that before Chief Manley even got to the position that he was in with Larry Jackson. So he inherited a system that was already deeply, deeply, deeply flawed, but what you do is when you get that system, what are the changes that you make?

Nakia Winfield: He has been a part of leadership that has continued that cultured, continued the culture of resisting accountability and blaming it on, "Oh, people just don't know us well enough," or, "the media has changed the perception of police to the public and it is incorrect," and so when you have feedback that you are doing the wrong thing or that you need to course correct, there are things that you can do to fix that. You can do a deep-dive into system transformation and figure out how you're going to root this problem out, you can decide that you're going to do absolutely nothing, you can decide that what you're going to do instead is change the optics and the marketing and try to change the numbers around it, and I think that what we're seeing from the police department is the idea of changing the optics and fudging the numbers, which is why you're going to have policy changes around what do the complaints look like and how are those coded? Which is why when you get the racial profiling report, you're going to try to undermine that. You're going to be like, "Oh, that's not what our data really says."

Nakia Winfield: These are numbers that APD has produced, they use APD's own numbers to be able to give them that report and go, "These are the outcomes that you're having," and what accountability would look like is go, "yes, you're right. Those are our outcomes. We need to do some deep-diving to figure out what is happening, why this is happening, and how we can change it," and that is not the approach that has been taken.

Scott Henson: So, Mandy, you listened to the full event. What did you think of the discussion and what's your impression of the community effort to get rid of APD's current leadership?

Mandy Marzullo: Well, I thought it was an extremely powerful event where people raised a lot of issues, and I think certainly they've made the case that APD needs a change in leadership. What's striking to me is just how much evidence there is that there is a systemic failure at almost every level, and where there isn't sort of a failure of leadership or to give adequate guidance it's almost explicitly the wrong guidance that's being given.

Scott Henson: Right.

Mandy Marzullo: Starting with Doug's testimony, the fact that he shows a 90% increase in drug possession cases where there was no connection to a crime really, it was a pretextual traffic stop.

Scott Henson: Right.

Mandy Marzullo: And this culture of hunting criminals that is terrifying really.

Scott Henson: Where they just openly talked about it that way.

Mandy Marzullo: Yeah, and that's the wrong culture. You want peace officers, you want public safety.

Scott Henson: Here, let me show you my hunting rifle. 

Mandy Marzullo: Yeah, and that I use to go into minority neighborhoods. It's...

Scott Henson: It is really wild how explicit some of that is and I have to say the mental health piece was also incredibly striking. Abie's story was godawful, just unimaginable going through that, and it's especially bad given that the city wanted to change how they handled mental health cases. They spent $1.75 million to add clinicians to the 911 call center and to fund alternative folks, mental health folks, to go handle some of these calls where there's not a crime involved, just like Abie's situation where someone just needed a wellness check.

Scott Henson: Well, the idea that only 200 cases out of 19,000 mental health cases were handled by the clinician in the 911 call center means that by policy they're just not implementing that program, that money was just wasted, and Just Liberty worked on that.

Mandy Marzullo: Yeah.

Scott Henson: Just Liberty was part of the group trying to get that diversion program done. So I'm especially frustrated that they're just not implementing the programs that the city wants them to do to address exactly these problems. But APD is just saying, "Nope, we're just not going to do it, just whatever you tell us to do, our practices are going to be to do what we've always done." And as I mentioned, I was incredibly frustrated at the fact that Mike Ramos was killed really expressly because of a policy change that Chief Manley implemented. The former chief, Art Acevedo, who's in Houston now, had changed the policy to say you cannot shoot at fleeing vehicles except under these very narrow circumstances, and Manley, without telling anyone, changed that policy back and that is why Mike Ramos is dead.

Mandy Marzullo: It's crazy, and also it's a law enforcement officer who had previously shot and killed someone else.

Scott Henson: Very recently.

Mandy Marzullo: Very recently. So clearly that points to some sort of failure to train on the part, or adequately supervise law enforcement officers if they're making the same poor decisions again and again, and it's bad from a policy perspective and it's bad from a public safety perspective, but it's also bad from a liability perspective. That was the other thing that sort of stood out to me is that we're getting close to the point where the city could potentially be held liable for this. We could start hemorrhaging money.

Scott Henson: It's really only because we're in the Fifth Circuit that it hadn't happened already.

Mandy Marzullo: Yeah, seriously.

Scott Henson: That's really the truth. If we were in a different circuit, I believe that that would already be the case.

Mandy Marzullo: Yeah, actually one piece of Abie's story that I found really kind of horrifying is that she said that she was treated like a criminal, as though her treatment would have been justified if that were even the case.

Scott Henson: Right.

Mandy Marzullo: No one should ever be dragged from their home for no reason, but especially without underwear.

Scott Henson: Right. No underwear, no shoes.

Mandy Marzullo: That's just a complete lack of dignity. It doesn't sound like there was any reason for it, and it was just a wellness check that was called in so it's crazy that that's what resulted, and according to Sonja Burns, according to her testimony less than 1,000th of all mental health calls are being referred appropriately.

Scott Henson: Right. Right.

Mandy Marzullo: That is a stark number.

Scott Henson: And again, it just to me says that the police department is intentionally not implementing the city council's directives to do things differently because they were not only told to do things differently, they were given funding to do things differently and that person was installed in the 911 call center, but they're not being used. They're not implementing the program. I think that after the Ramos shooting there was an impression that, "Oh, well," this is an overreaction to call for Chief Manley's ouster just over this one thing, and I think what came out at this event was it isn't just one thing, it's many, many things. It's many bad policies that just keep being promulgated over and over.

Scott Henson: One thing that wasn't mentioned in the excerpts that we ran but that is a big problem is that we have an Office of Police Oversight in Austin that is supposed to provide civilian oversight regarding police misconduct, and the woman who runs that office, Farah Muscadin, has been basically snubbed and insulted and treated like she really has no role. They keep implementing these policies that she disagrees with, and she's supposed to have some role in commenting on these as they come up. Well, Chief Manley would say, "Okay, well I have a new policy that says that we're no longer going to treat a certain category of complaints as serious enough for the public to know about." He gave her 24 hours, no notice, sent it over via email and said, "You have 24 hours to respond."

Scott Henson: This is just insulting and absolutely no good reason to be that aggressively dismissive of her. Over and over in almost every area you see that type of attitude that, "We're just going to do what we want. It doesn't matter what the city council says, it doesn't matter what the Office of Police Oversight says, doesn't matter what the mental health experts say, we're going to do things like we always have, and it doesn't matter what the community groups want. If I want to have our officers shoot at a fleeing vehicle, they're going to shoot at fleeing vehicles, by God, and no one's going to tell me any different."

Scott Henson: Next up in our top stories is the coronavirus in Texas prisons and jails. Frankly, at times it's seemed like the coronavirus has been the only new story in existence for the past several months, but the situation in prisons and jails is especially acute. About a third of Texas prison units remain on lockdown to prevent spread of the virus. As of May 20th, about 1200 inmates and 229 staff had been diagnosed with COVID in the Texas county jails, while 2,000 prison inmates and 455 TDCJ staff had been diagnosed, with hundreds more having had the virus and already recovered. County jails have witnessed a handful of COVID deaths while 32 Texas prisoners and 7 TDCJ staff have died so far. These numbers are almost certainly understatements as testing rates is low.

Scott Henson: Many Texas counties have actively attempted to reduce jail populations to prevent spread of the virus with the statewide jail population dropping more than 10,000 in just a month after the first public restrictions were announced. That's especially impressive when you consider that the state stopped accepting new prisoners from county jails, so thousands of those folks are waiting in cells at the county level. But Governor Greg Abbott injected himself into the process, issuing an executive order forbidding release of arrestees if they had any past record involving crimes of violence, no matter how minor. Mandy, now that we've seen all this play out, what's your impression of how Texas corrections agencies have responded to the coronavirus? 

Mandy Marzullo: This is a novel situation so it's hard to judge folks too harshly, but it definitely seems to be indicative of some of the widespread problems that we've seen already in how the pandemic has been handled. We know that the jails and TDCJ are drastically underestimating the size of the problem. Counties, the numbers that we have are only reported numbers and that's because a lot of counties are just not testing.

Scott Henson: Right.

Mandy Marzullo: We don't know who's going in and out so you can't really respond to a problem adequately if you just don't know how big it is and constantly monitor its growth. And that's part of the national program, but it's particularly acute in the corrections context where as many commentators have pointed out, you can't socially distance.

Scott Henson: Right. And I would also say that it really is an example where some folks have done a really good job and some are just almost willfully not doing a good job. In Harris County, the sheriff really took this seriously from the very beginning. They have pretty high numbers of people who have tested positive, but that is in part because he is testing much more aggressively and he understood from the beginning, "Hey, this isn't just the inmates, it's my staff. What happens when I have many, many dozens of staff who are out at any one time?"

Mandy Marzullo: Yeah.

Scott Henson: And so he took it seriously from the very beginning. By contrast, here in Travis County they're basically testing as few people as they can possibly get away with, fewer than 1% of the jail population's been tested, and they're real happy to say, "Oh, we haven't had any cases." Yeah, that's cause you're not looking for them. 

Mandy Marzullo: Yeah, exactly.

Scott Henson: And they've had five staff members test positive cause they do care enough about their staff members to test, but they're not testing the inmates and at least they're testing the 1%. There's quite a few jails in Texas that just aren't testing so they have no one to report.

Mandy Marzullo: Yeah, and it's scary because of the context. Jails and prisons, they have recirculated air. They have massive numbers of people touching the same surfaces again and again and again, and intimate contact between people, corrections guards are regularly cuffing people.

Scott Henson: Right.

Mandy Marzullo: So it's an environment that's almost created, if you think about it, it's the perfect environment for a virus like this.

Scott Henson: Well historically, prisons and jails are epicenters of viruses, plagues, going back to the 17th, 18th century. This is something that is a known problem going back to basically the Renaissance, and in the 19th century in America it was something that was very, very commonly discussed, especially for jails because people don't go into the jail and just stay there, they're there for a relatively short period of time and then come back out, and so going in, getting infected and then coming back out endangers the community. In TDCJ what you've seen is a handful of units have very serious problems, some have none at all. The ones that have very serious problems, it isn't just the inmates.

Mandy Marzullo: It's everybody.

Scott Henson: It's the staff, and so the staff are coming out every day. They're coming home, they're going to the grocery store. They're actually spreading it within the community, and so some of these very rural areas who otherwise would have probably not that big a problem with the coronavirus, all of sudden are hotspots. We've seen that in Palestine, which is, we're going to talk about Palestine later cause their newspaper editor's done a good job, but that's a town of 18,000 people. They're relatively isolated, not a lot of people are traveling to New York City or China from Palestine, Texas. But because they have five large prison units there, they have a coronavirus problem that's way disproportionate from what they would otherwise have.

Mandy Marzullo: So then moving kind of on to the governor and his response.

Scott Henson: That was a crazy situation I thought.

Mandy Marzullo: Yeah, it really was. He's all over the place on this, which creates another problem in and of itself. It doesn't give people or state officials enough guidance to really know what's going on. With his order, a handful of judges and several community groups actually filed a lawsuit saying that this was a violation of separation of powers because he was basically stripping judges of their authority and then threatening to arrest them. Not threatening, but saying this is enforceable by arresting them if they actually did release people.

Scott Henson: That's right, and then a district judge issued a temporary restraining order saying, "Okay, don't implement the executive order," and ultimately the Supreme Court of Texas came in and stayed that TRO, but their reasoning for staying the TRO was fascinating. They essentially said that the order can stay in place because it is completely unenforceable.

Mandy Marzullo: Basically they said, "Hey, the judges, you don't have a right to sue."

Scott Henson: Because the order cannot be enforced.

Mandy Marzullo: Yeah, exactly, or you haven't established enough grounds to show that you really are because it would be clearly inappropriate to arrest judges for using their judicial discretion and they would have [crosstalk 00:39:59].

Scott Henson: What they hadn't shown is why their absolute judicial immunity wouldn't protect them from arrest.

Mandy Marzullo: Which I find interesting because judicial immunity doesn't shield you from an arrest, it shields you in the prosecution itself. So I think in some ways the Texas Supreme Court got that wrong. There is harm in just having a proceeding initiated against yourselves, and I think-

Scott Henson: Although that hasn't happened either. There are judges who are just openly flouting this and saying, "I'm not abiding by it."

Mandy Marzullo: But would they bother now after the Texas Supreme Court has issued this mandamus opinion? I think that would be different, but I do think they got that piece of it wrong. If nothing else, they'd have to strip that provision which I guess is what they effectively did-

Scott Henson: Well, and it was also strange because in their pleadings, the attorney general and the governor argued to the Supreme Court, "Oh, well we don't actually intend to enforce this. We don't actually intend to ever try and have any judges arrested, and so because we are never going to try and enforce our executive order, they don't have grounds to challenge it." Well, that's a weird position to take.

Mandy Marzullo: It's completely strange and I think what so often happens in these cases, I think it's forum over substance, that they want to say, "Well, we have these defenses so it's not a problem," without realizing that proceedings themselves, just exposing someone to a prosecution, to a restraint on their liberty, would be a problem.

Scott Henson: Well, and we've now reached a point with these executive orders to where no one knows what can be enforced or what can't. There was the whole situation with the hairdresser in Dallas where a judge tries to enforce the order and all of a sudden it gets pulled back. It's a very bizarre situation where the governor keeps issuing executive orders and then saying, "I'm not going to enforce it, no one can enforce it. If you try and enforce it I'll stop you." What? It's your order.

Mandy Marzullo: Yeah. I mean, it just shows how complicated these issues are and how important it is to have nuance and allow decision-makers to make appropriate decisions.

Scott Henson: I would also add, and in the big picture what this shows is that the provisions to the Texas Disaster Act that allowed the governor this much authority really were a bad idea. Coincidentally enough, after 9/11 I worked at the ACLU of Texas and I was involved in negotiating basically bioterrorism-related legislation that revised all of Texas quarantine laws, and we actually put in a bunch of protections against gubernatorial overreach that in 2009, the legislature repealed and took all that out. Frank Court, who's no longer in the legislature, pushed that through. And instead, they basically gave the governor almost dictatorial powers during the disaster to just say, "Okay, I'm overriding laws and regulations and I get to make executive orders that have the effect of law," and that has turned out to be a huge miss. The governor I think just didn't know how to use those powers appropriately, and that's why you see this, "Oh, here's my order, but don't enforce it." What?

Scott Henson: That just shows a level of confusion that stems from that Disaster Act really not being well thought through. I frankly liked our quarantine laws and our statute a lot better when there were restrictions and due process on how those orders get enforced, and that's been a frustration for me as I've watched all this happen because by the time they changed the law in 2009, I was no longer at the ACLU, I was at The Innocence Project. I didn't really have a role to play so I didn't stick my nose in, but I sure regret that somebody didn't because they did a bad job with that and I'm hoping the legislature comes back and restricts a lot of that authority now that we know that it just didn't work out the way they thought it should.

Mandy Marzullo: Yeah. Now it's time to play Fill in the Blank, in which Scott and I consider various criminal justice topics and each suggest how to finish the same sentence. First up, the Texas Office of Court Administration lost control of all websites for the Texas appellate court system in the wake of a ransomware attack. State officials decided not to pay and now there's no public access to historic appellate court decisions. Accommodations have been made for attorneys to electronically file briefs in their cases, but there's no telling when the websites will be back up. So Scott, fill in the blank. Texas leaders were blank not to pay the ransom.

Scott Henson: Foolish in my opinion. You know, we saw this last year when Potter County, Amarillo, and about 20 other jurisdictions had ransomware attacks, and they also chose not to pay at that time. Those jurisdictions were devastated. In Amarillo, they've only just really got their courts functioning again in the wake of all this, and I know in the lead-in you'd said that the historical court opinions aren't up, but this also affects all of the agencies that are under the court system, the Office of Capital and Forensic Writs, the state prosecuting attorney, their internal systems just vanished.

Mandy Marzullo: Yeah.

Scott Henson: And they don't have access to their work product. I understand sort of the gut impulse, "Oh, well we're not going to crater in to terrorists," or whatever, but it's creating a huge mess to not have access to all those systems, and to me what they really should have done was just gone ahead and pay, treated it as the cost of an education, and immediately shift everything to a cloud-based system where they can have adequate security. Adding to that, I feel like after what happened last year to Potter County and those other jurisdictions, they should have already done this. We shouldn't have had to wait that long.

Mandy Marzullo: Yeah. It's crazy. I was going to say they were irresponsible in not paying because of the crippling effect that it's having on the court operations. It's hard to imagine how you do anything without access to your files and it could, again, create further, give rise to more litigation. This could be viewed as a violation of the Texas Constitution if the public doesn't have access to the court-

Scott Henson: Right. We have an open courts doctrine.

Mandy Marzullo: Yeah.

Scott Henson: You're supposed to have access to all that court information, and for the appellate courts we do not right now at all. I was contacted recently by the National Exoneration Registry, which was trying to research some of the cases from an episode where the DPS crime lab had had some misconduct and a bunch of cases got dismissed and they were trying to identify those and upload those to the exoneration registry. It is basically impossible to research that through court records right now, so that is a constitutional problem.

Mandy Marzullo: Yeah, I was going to say. And the fact that it's not everybody, it's only some people that are being denied this access, that attorneys are still able to file their briefs but members of the public may have trouble.

Scott Henson: Right.

Mandy Marzullo: That's another problem.

Scott Henson: Next up, updating a story we've discussed before, after months of delay, Travis County DA Margaret Moore agreed that Rosa Jimenez, a babysitter convicted of killing a toddler based on what courts have said was flawed forensic evidence, deserved a new trial. The Texas attorney general Ken Paxton, who had been managing the response to Jimenez's habeas corpus writ in federal court, refuses to abandon his pending appeal, seeking to uphold a conviction that prosecutors in the case have admitted is unfair. So Mandy, fill in the blank. Ken Paxton's position in the Jimenez case is...

Mandy Marzullo: This is a fancy word, but it's a tautology. "We're right because we were right before." And it's failing to acknowledge that the whole problem with its position or his office's position on her case is that she was probably wrongfully convicted and that justice for her and for everybody in Travis County is a retrial in order to make sure that we don't have an innocent person. And so the position that we'll do everything in our power to keep her behind bars because she was convicted fails to acknowledge that.

Scott Henson: I would say that Paxton's position is just bizarre. This is a situation where the judge who presided over this trial to begin with now thinks that she deserved a new trial, where the DA's office thinks there should be a new trial, judge after judge, basically everyone who's looked at it except the court of criminal appeals has said, "Give this person a new trial," and Ken Paxton is the only person who's insisting, "no, no, no. There's no way we can do that." Well, if she gets a new trial and they convict her based on reasonable evidence, great, but everyone's looking at the forensic evidence and saying, "You know what? If it were adequately vetted in the first place, she would have never been convicted," and what he thinks is gained from continuing to just press this point, I have no idea. It's embarrassing for the state, I think about that old saying somebody said to Joe McCarthy, "Have you no shame, sir?" What in the world does he think he's doing? I don't want a conviction that shoddy and that embarrassingly ill-founded done in our name, and I think most people in the public who understood what was going on with the case would feel the same. I'm not sure who he feels like he's representing in doing that. It's bizarre.

Mandy Marzullo: Last one. Jeffrey Gerritt, editor of the Herald Press in Palestine, a small town in Northeast Texas, won a Pulitzer Prize this spring for an extended series calling for strong state oversight of county jails and greater transparency surrounding county jail deaths. Scott, fill in blank. Gerritt's Pulitzer Prize-winning series demonstrates...

Scott Henson: That jail oversight in this state really needs an overhaul. I have friends at the Texas Commission on Jail Standards, I think they're doing a good job under the statutes that we have and under what they're allowed to do, but the reality is is that they're hamstrung, and we have a very opaque system of jail oversight, and one of the things that he kept raising was we're not even allowed to see video from jail deaths. Well, in most states you can. I'm glad that we have the Commission on Jail Standards, that's better than at the prison system where we have no independent oversight body at all, but he really showed that there are a lot of problems with how that operates.

Mandy Marzullo: I was going to say, it demonstrates the importance of local press.

Scott Henson: Right.

Mandy Marzullo: This is an issue that was ignored by national media outlets, but because it was a local paper and they were aware of specific horrible events, they took a deeper dive and that's something that we lose if we don't have local papers.

Scott Henson: Right, and this is a very small paper in a very small town, and he was reacting to a death in their local jail and just kept pulling at the strings and pulling at the strings and said, "Well wait, there's a lot of problems here that are structural, that are about state law, that are about opaque open records laws," and yeah, that's exactly right. And it was a great example of the press doing what the press should do.

Scott Henson: Now it's time for our rapid fire segment we call The Last Hurrah. Mandy, are you ready?

Mandy Marzullo: I'm raring to go. First up, in Harris County, district attorney Kim Ogg announced that her office is conceding error in 90 drug cases that were investigated by narcotics officer Gerald Goines. So Scott, what does this scandal tell us about drug enforcement in Houston?

Scott Henson: That it's a serious mess and these 90 cases are on top of 70 other cases that she had conceded error in earlier this year, and so this is now a huge swath of cases out of the Houston PD Narcotics Division and a huge legal mess that they now have to deal with through habeas corpus writs and-

Mandy Marzullo: Unnecessary habeas-

Scott Henson: Well, they're necessary for these poor guys who were convicted.

Mandy Marzullo: Sorry. What should be unnecessary habeas corpus writs.

Scott Henson: Right, right. There really should be some way to get at how do you overturn these cases without having to go through this lengthy process? But I would also say it's inconceivable that Gerald Goines was the only person who was doing this or behaving this way. What we saw in the aftermath of the SWAT raid that brought all this to light and brought his lies in probable cause affidavits to light was that that entire division really had problematic practices, it had very lax oversight. These officers were able to go out in the field and set up people if they wanted to in ways that were very hard to detect. Kim Ogg has finally just decided, "Okay, if this guy's testimony was the only thing that caused someone to be convicted, if there was no other evidence except Gerald Goines said so, I can't-"

Mandy Marzullo: Stand by that.

Scott Henson: "I can't stand by it." But he wasn't the only person in that division making arrests under those circumstances. So I think this is a big deal and it's probably a lot bigger than just Gerald Goines. Next up, in an attempt to reduce arrests during the coronavirus era, the city councilman Sam Marcus passed an ordinance forbidding arrests for most class C misdemeanors, driving with an invalid license, marijuana possession and several other misdemeanor offenses for which state law gives police discretion to issue citations instead of arrest. Other jurisdictions have allowed police to exercise that discretion, but Sam Marcus was the first to require it. Mandy, do you think they have the right idea?

Mandy Marzullo: Absolutely. I think this should be the policy just in general. These are such small offenses that just a citation with a note to report to a justice of the peace at some later time makes a lot of sense, it allows people to keep their jobs, and it saves lives in this instance. Last one, Joe Bryan became famous after journalist Pam Colloff authored a 22,000-word two-part cover story for the New York Times Magazine describing how overzealous prosecution and flawed forensics led to his almost-certain false conviction, but prosecutors continued to oppose his release and the parole board had heeded their concerns, keeping him locked up. This spring, the parole board reversed course, letting the former high school principal go after decades in prison. Scott, what's your reaction to this news?

Scott Henson: This was a wonderful, bright spot in the midst of a spring filled with bad news from the coronavirus to Rosa Jimenez and down the line. This really was an egregious false conviction. He was railroaded by the local media before he ever got trial and I was very happy for him, very happy for Pam, to see her work vindicated there, and especially happy for his family. This man was 80 years old, there's no reason for him to die in prison, and I was happy the parole board finally looked at the evidence of innocence and said, "You know what? Whether or not the prosecutor agrees, we're going to go ahead and let this guy out." All right, we're out of time but we'll try and do better the next time. Until then, this is Scott Henson with Just Liberty.

Mandy Marzullo: And I'm Amanda Marzullo. Goodbye and thanks for listening.

Scott Henson: You could subscribe to the Reasonably Suspicious podcast on iTunes or SoundCloud, or If you listen to our podcast on Google Play, you'll be able to hear it on YouTube Music after you transfer your account, which you should definitely do. We'll be back next month with more and hopefully better news, and until then, keep fighting for criminal justice reform. It's the only way it's going to happen.

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