Friday, July 31, 2020

Podcast: How police licensing agencies can weed out bad cops; what 911 calls EMS could take over from police: and Just Liberty and the Austin Justice Coalition unveil a new jingle aiming to oust Austin police Chief Brian Manley

Here's the July 2020 episode of Just Liberty's Reasonably Suspicious podcast covering Texas criminal-justice politics and policy, co-hosted by Scott Henson and Mandy Marzullo.

This month, Mandy and I discuss how police licensing agencies can weed out bad cops, what 911 calls EMS could take over from police, and unveil a new jingle from Just Liberty and the Austin Justice Coalition aiming to oust Austin police Chief Brian Manley. Here's what's in this month's episode:

Top Stories
  • Police licensing agency in Texas undergoing comprehensive review: How to fix it. (2:50)
  • EMS union head tells how police responses to 911 calls can be reduced: Analyzing Austin 911 call-center data. (12:17)
  • New jingle from Just Liberty, Austin Justice Coalition, calls for Austin police chief's ouster. (23:25)
Something, Nothing, or Everything?
  • Reviewing new Texas public opinion polling on criminal-justice topics. (31:07)
  • Progressive challenger Jose Garza defeats incumbent Margaret Moore in Travis County District Attorney primary runoff. (35:15)
  • Audit of Houston PD Narcotics Division finally released (38:23)
The Last Hurrah (47:45)
  • 5 years since Sandra Bland's death: What's next?
  • Texas and feds both resumed executions: Feds are a bigger deal.
  • San Antonio PD can't fire bad cops: 70% of terminated officers get back on the force.
Find a transcript of this episode below the jump. Enjoy!

Transcript: July 2020 episode, Reasonably Suspicious podcast

Mandy Marzullo: Hi, this is Amanda Marzullo and with my co-host, Scott Henson, we're Reasonably Suspicious. This month we start by turning a suspicious gaze onto Lefors, Texas, a town of fewer than 500 people in the Texas Panhandle, which reportedly has an ordinance on the books forbidding people from drinking more than three sips of alcohol while standing up. Scott, what do you think drove the town to enact this three sip statute? 

Scott Henson: I think this speaks to the lingering political clout in rural areas of Big Rocking Chair, which has long been aligned with a drink while sitting agenda. That's my guess. 

Mandy Marzullo: But then, why don't we see this ordinance replicated elsewhere?

Scott Henson: Big Rocking Chair doesn't wield the kind of clout that it used to. So, Lefors, Texas maybe it's last outpost, I'm guessing.

Mandy Marzullo: I don't know. I mean, Big Rocking Chair does have a powerful constituency. I mean, old White people.

Scott Henson: Old people who like to sit down?

Mandy Marzullo: Yeah, I mean, that's a lot. 

Scott Henson: It is a lot. I agree. 

Mandy Marzullo: I was wondering, how do you comply with this? Do you have to sit for a duration of time?

Scott Henson: I think you just sit down and have a drink. Seems pretty straight forward.

Mandy Marzullo: But what if you want to stand? Sometimes people like to stand.

Scott Henson: Mysteries of life. Hello, boys and girls, and welcome to the July 2020 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice, politics and policy. I'm here today with our good friend, Mandy Marzullo, who just returned from a trip to California with her dog Grizz and briefly considered not coming back. And how are you doing today, Mandy?

Mandy Marzullo: I'm doing okay although Grizz would like to move back. 

Scott Henson: I don't blame her, it's too hot here and very nice in California.

Mandy Marzullo: That is true.

Scott Henson: This month, is police reform possible through the state licensing agency? Auditors find little supervision at the Houston PD narcotics division. And y'all get to hear a new jingle Just Liberty's been working on with Austin justice coalition. What are you looking forward to on the podcast today, Mandy?

Mandy Marzullo: Talking about TCOLE, the Texas Commission on Law Enforcement.

Scott Henson: Yeah, that's an oddly compelling topic. I agree, I'm looking forward to that too. 

Mandy Marzullo: In our top story, the state agency responsible for regulating Texas police officers, the Texas Commission on Law Enforcement, is up for a once every 12 year review by the Sunset Commission. For the uninitiated in Texas, once every 12 years each state agency is reviewed to decide whether it should continue to exist, whether reforms are needed or whether it's time to abolish the agency all together. This year it's TCOLE's turn. Scott, you've been in conversation with the Sunset Commission staff on this topic. Set the table for us. What are they looking at and are there opportunities for meaningful police reform through this process?

Scott Henson: I definitely think that there are opportunities for police reform through the Texas Commission on Law Enforcement. So maybe an agency review, stem to stern, is the right moment. And especially after all of the recent protests and the renewed political interests here, maybe this is the right moment to figure out what can be done through the Commission on Law Enforcement. This is an agency that has been completely toothless over the years.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: And to give credit where credit's due, their current executive director, a man named Kim Vickers, who used to be with Abilene police department.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: In my opinion, has done a great job and really has done everything you're able to do with the powers the legislature has given him.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: And what that's really done is shown the limits of those powers, right?

Mandy Marzullo: Yeah.

Scott Henson: Really what he's done is demonstrate that even if you use them all as aggressively as you can, you aren't able to do that much. Two thirds of the licensing agencies in other states allow the decertification of peace officer licenses for misconduct. In Texas, we require that you be convicted of a felony before your license can be decertified.

Mandy Marzullo: Yeah. And kind of give more context for our viewers, it's really hard as a law enforcement officer to be convicted or even charged with anything because we don't require that local DAs recuse themselves. So just being charged is a political process. Law enforcement officers work with local prosecutors all the time. It's inherently harder for them to seek charges against them. 

Scott Henson: And they have qualified immunity from many things that they might otherwise be liable for. If they-

Mandy Marzullo: Yeah.

Scott Henson: ... beat someone up in the course of the job, even if it's deemed excessive, they might still not have liability for that under the law. So, there's a lot going on there and the states that... I mean, think about it in terms of your doctor who also has a licensing agency or the dental board that governs dentists-

Mandy Marzullo: Mm-hmm (affirmative). Yeah.

Scott Henson: ... or plumbers-

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: ... you can loose your license for being a bad plumber before you've committed a felony-

Mandy Marzullo: Yeah.

Scott Henson: ... right? Same as being a doctor. Same as being a dentist. If you go in and you're pulling the wrong tooth out or you're amputating the wrong leg and you're doing it more than once, even if they don't find it's a felony they're going to take away your license. But with a police officer that isn't the case.

Mandy Marzullo: Yeah, and plumbers don't carry guns too-

Scott Henson: Right.

Mandy Marzullo: ... so it's even-

Scott Henson: Although some of those big wrenches are kind of scary if you really wielded them with malice, but any-

Mandy Marzullo: Yeah. Yeah. I mean, I was thinking about 
analogizing this agency to the bar, because-

Scott Henson: For lawyers. 

Mandy Marzullo: For lawyers. Because the membership is sort of similar in size, there are roughly somewhere around 100,000 lawyers licensed to practice in the state of Texas and there's somewhere around 100,000 law enforcement officers.

Scott Henson: Yeah, I think it's 80,000 cops and another 30,000 or so jailers.

Mandy Marzullo: Yeah, it's potentially even a larger pool depending on how you crunch the numbers. 

Scott Henson: So they ride in the same wheelhouse.

Mandy Marzullo: Yeah. But, if you look at the organizational chart on the TCOLE website, they've got just over three dozen employees, somewhere around 40-

Scott Henson: Yeah.

Mandy Marzullo: ... with a few vacancies right now. And the state bar of Texas has hundreds of employees with a specialized investigational division that looks into attorney misconduct and a whole industry centered around continuing education for attorneys. There's a pretty comprehensive staff that deals with attorney training, but on top of that you've got third parties and organization like the Texas Defender Service, which I used to be the head of, conducting specialized trainings within their topics. So we did a lot of the death penalty representation trainings in Texas and we worked with other agencies and there's also the Court of Criminal Appeals slush fund-

Scott Henson: Right.

Mandy Marzullo: ... for criminal defense lawyers, I mean, that's in the millions of dollars.

Scott Henson: Well, there's slush funds for police training too, but what there isn't is this sort of center for professionalism and coordination of all that-

Mandy Marzullo: Yeah, they've got-

Scott Henson: ... that effort.

Mandy Marzullo: ... one employee dedicated to the training in TCOLE.

Scott Henson: Right. One to do the curriculum review.

Mandy Marzullo: One.

Scott Henson: That's right. And you and I had gone to them after, or maybe it was before we did a segment on the forensic hypnosis, and talked to them about, "Well, your training is based on this weird pseudoscience, things that have now been disproven from-"

Mandy Marzullo: Yeah.

Scott Henson: "... the era of FMRI brain scans and this sort of stuff. And so, can we get you to revisit your training?" And this I think was in 2018. And Kim Vickers replied, "Well, sure, that'll be fine. I have one curriculum coordinator and here's the list of tasks that I've assigned this person. And it looks like I can fit you in sometime in fall of 2022 unless some emergency arises." 

Mandy Marzullo: Yeah, no, that was exactly what he said.

Scott Henson: So he was able to pencil me in four years later and unless something comes up, and of course every session the legislature assigns them more training. 

Mandy Marzullo: Yeah.

Scott Henson: And so, what I told the Sunset review people, and I will say this about very, very few state agencies, is that the Commission on Law Enforcement needs more money, more staff and more power.

Mandy Marzullo: Yes.

Scott Henson: They need more expertise within the agency on their issue area. They are the most stripped down version of a licensing agency you can imagine. And I also had on the blog suggested a way for them to pay for all this expanded staff they need-

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: ... that I should go ahead and bring up. They are perhaps unique among licensing agencies that I've ever seen in that they don't receive a budget line item from the people that they're regulating. Most regulatory bodies that have licensure-

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: ... get a licensure fee and that is priced to cover whatever it costs to do that regulation. That's how the state bar is funded in large part. 

Mandy Marzullo: Yeah.

Scott Henson: And so, that is not true for law enforcement, all but a few grants come out of the state general fund. And so, if you started to charge an annual $50.00 licensure fee for every police officer in the state, that would be an extra $4 million a year which would double the agency's budget and give you the ability to hire all these extra staff you need for curriculum development, for training oversight, to develop some training expertise within the agency, to do all these things. To hire lawyers to run a decertification program. There's only one staff lawyer in that whole agency.

Mandy Marzullo: Yeah, and she's functioning more as a general council then anything else dealing with government relations then looking into police officer complaints. 

Scott Henson: And you'd have to as the only lawyer at an agency like that. There are very few agencies, I would say, you need more staff and more power and load you up.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: But when it comes to police licensing, I think that's exactly the formula that we need. 

Mandy Marzullo: Definitely. 

Scott Henson: Earlier this month the Austin Justice Coalition released a report analyzing 9-1-1 call center data revealing that officers spent less than one third of their time responding to criminal activity. The rest gets soaked up with things like traffic management or responding to social concerns like mental health and homelessness. Mandy and I sat down with Selena Xie, the head of Austin's local EMS union and I asked her what categories of calls she saw in that report that she envisioned could be withdrawn from law enforcements purview. She had a list.

Selena Xie: So, when we have this conversation about reimagining public safety, people primarily think about police, but as you suggest it really does affect EMS. The first area that I would like to look at, and this is in talking to the police union, in talking to other medics, I think that we can agree that there are some calls that we both go on that we don't need to go on. So for example, we have police go on almost every single overdose call and that's often because there's an illegal presence potentially there or there might be safety concerns. I have not experienced many times when I needed police presence on an overdose call. And I don't feel like the police officers really feel like they need to be there, especially now that they are moving forward with decriminalizing low-levels of marijuana. So, I think we can start by eliminating police presence on certain calls where there is a duplication. 

Another call type is, it is very clear from dispatch which calls are going to involve people experiencing homelessness. So if it is a person laying on a sidewalk, the chance that it is somebody experiencing homelessness is pretty high and I think that if dispatching asks the right questions you could even get that more precise. And so, I think a lot of times police are not necessary on those calls either. In our community health paramedics would be more appropriate. Even sending an ambulance to those calls is not the best option, especially if they actually don't need anything, they're trying to sleep and all we're doing is waking them up or they're just like, "Well, screw it, I'll go to the hospital and get a sandwich." Well that is generating bills for our community, it is not really what this person needs and really this person potentially needs intervention, someone like community healthcare medics that can set them up with finding longer-term access to food or get started on housing or on medications.
And so, I think that there's a lot of overlap where we could reduce police presence in those situations. As far as giving us more... And that also goes for mental health as well. And we've been working with Council Member Kitchen as well on bringing something to the 2022, excuse me, 2021 legislative body and see if we can have our office of the medical director give paramedics the power to do emergency detentions so that it's not just police officers. And I think police officers would like that as well. They readily admit that they are not mental health experts.

Scott Henson: Mandy asked Selena to expand on what new authority paramedics needed in mental health cases. 

Selena Xie: So right now if we get a call that somebody is suicidal, the police officers will go out. If there's any kind of attempt medics will go out, very rarely do we not go out. So in the past months I've gone to two of them where somebody did very superficial cuts on the inside of the arms, somebody took a few extra medication and so, basically because there is either an attempt or there is evidence that this person has left a suicide note or has made phone calls in to meaning that they're going to commit suicide, then a police officer can say, "You do not have the right to refuse to go to the hospital and in fact, the hospital can hold you for 48 hours." And so, the police officer is the one who makes that determination and the police officer is the one that's been given 40 hours of training to make that determination of the lethality of leaving this person at home.
And so, paramedics on the other hand, we have two years of training and we take a whole class on psychiatric emergencies. And so we often disagree with the police officer's opinion but, you could also have two paramedics there that will also disagree. So, there was a bill a few sessions ago that asked for emergency room doctors to be able to hold patients for up to four hours and that did not pass because Governor Abbott... It passed through the House and the Senate, but Governor Abbott vetoed it because he did not want anybody beside the peace officer taking away somebody's rights. I think that in what's going on right now with the police brutality protests and I think there is a space to really rethink how we do things, and I think Governor Abbott would be more open to that. But, it kind of remains to be seen.

Mandy Marzullo: Yeah.

Selena Xie: It's kind of weird because if you read a paramedic textbook or if you even look at our medical guidelines, how we operate as paramedics in this field, it actually says that we are not really allowed to let somebody who is suicidal refuse. But we also don't have the power to kidnap them and take them to the hospital, so there is kind of some contradiction in how we're supposed to act and we have the legal authority to do. So it definitely gets really tricky there and we usually have to call for the police in order to do an emergency detention. But if we had the ability to do them then, obviously, we wouldn't need to involve the police.

Scott Henson: Moving police out of the mix in minor situations would also help clarify their role when they are involved. Since the protests, Selena has seen officers begin to withdraw from doing their jobs. She thinks a public health oriented approach would achieve better results.

Selena Xie: So we're already seeing some downstream effects of the protests. For example, we're seeing that officers, when we need help, there are some officers who are taking to heart these protests and not wanting to go hands-on with patients. So for example, there was one case in a road where a patient was clearly having a psychiatric break and needed to be cleared from the road because there was high speeds of traffic, and the police officers did not want to go hands-on. And I think it's an interesting question because we really did need help and this person's safety was at jeopardy, but because of everything that's going on it makes sense. And I don't know that we necessarily need a gun in that situation. 
And if the call or text had come out just a little bit differently we could have also just been sent an ambulance and a fire truck, for example. And then the fire truck has four people that could have also helped us. And we do often have to get physical with patients just to ensure their safety if they're doing something that's harmful to themselves or to other people and that doesn't mean that there needs to be a gun in that situation. And so, we could do it along with the firefighters. And I know that a lot of our city council members are taking seriously some of the ideas about what calls do police they don't feel like they need to be on and we don't feel like they need to be on too. I think there is actually a lot of agreement among people that are in the public safety space and also in the activism space. And so if we can really work on what we all agree on, I think that is a really good place to start.

Scott Henson: So Mandy, tell me what you thought about this report and what Selena had to say.

Mandy Marzullo: I think what strikes me the most about this report and Selena's comments is just how many opportunities are out there to create a cost savings while also improving services. She noted that sending an ambulance to a lot of the circumstances where they're just deployed as a matter of cause is creating a huge expense for local tax payers and doesn't seem to serve any purpose. But just sending out a medic sort of right sizes the response, might make everybody more comfortable and be cheaper. And you also saw that in the report, I think you and Kathy both noted, about the traffic squad or I don't know what division of ABD where they're towing people's cars and are very proud of that. But if that's really all they're doing, should we have someone with a gun, wouldn't it make more sense to have a local mechanic?

Scott Henson: Right. I always thought the traffic division was doing traffic enforcement and it turns out the traffic division is putting up cones around accidents and helping move vehicles to clear the highway so that people can drive. Which is great, that needs to get done, absolutely. But that seems more like a public works employee type situation-

Mandy Marzullo: Yeah.

Scott Henson: ... then somebody with a badge and a gun.

Mandy Marzullo: Yeah. And a mechanic could fix the car.

Scott Henson: That's right. That's exactly right. Why not send someone who can actually solve the problem instead of someone who just delays solving it and maximizes expense to the car owner. So yeah, I thought that was fascinating. Now this report came about because the same two statisticians had written an article in the New York Times, What Do Police Really Spend Their Time On.

Mandy Marzullo: Yeah.
Scott Henson: And what they found is that nationally the cops spent 1% or less of their calls were on violent crime and maybe 3% of their time was spent on violent crime. Well here in Austin it was like .6% of calls and less than 3% of time was spent on that. And so, when you start talking about rapes and murders and all, that's a very small proportion of what police are actually spending their time on. And when you consider all crimes all the way down to Class C misdemeanor little petty bits of nothing crimes, it's still about 20% of calls, 21% of calls, about a third of their time they spend. Two thirds of the time is on non-criminal activity. And so, everything we can get diverted to public health, everything that can get diverted to public works, limits the number of police interactions and lessons the likelihood that that officer pulls out a gun and does something stupid with it.

Mandy Marzullo: Yeah. Austin Police Chief, Brian Manley, is a handsome man, but sometimes he peers like a zombie in a B rated movie. He keeps rising up and slogging forward long after he should be politically dead. The Austin city council in June unanimously approved a resolution expressing, "no confidence in the police chief's leadership," and a majority of city council members have publicly called for his ouster. But so far Austin City Manager, Spencer Cronk, has refused to remove him. That's why the Austin Justice Coalition and Just Liberty put together an online video and jingle trying to dislodge the chief from his seemingly intractable perch. Scott wrote the lyrics, John Holzman sang them, Gabe Rhodes played the guitar and produced it. Let's give it a listen. 

Mandy Marzullo: So Scott, tell us about this project.

Scott Henson: This, I guess, in many ways represents an act of desperation. You learn something new every day and this fire Brian Manley process is teaching me a lot. To me, in a council, manager form of government where the city manager is hired by the city council-

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: ... once the city council issues a unanimous no confidence vote-

Mandy Marzullo: Yes.

Scott Henson: ... that they all publicly debate and then sign off on. And then when a majority of city council members, I forget if we're up to six or seven, publicly face-to-face turn to the city manager and tell him, "I think that the city would be better off if Brian Manley weren't the police chief anymore." And do all this in public settings. I thought he was toast. I thought that would be enough to oust him and now I don't understand what is required. So all I know to do is to gen up the public even further and try and amp up the pressure because all of what I thought I knew about the political rules don't seem to apply to this man.
Mandy Marzullo: Yeah, or Spencer Cronk, right? They both don't seem to be making any sense. You would think that Cronk would feel pressure to do what his bosses-

Scott Henson: Very much.

Mandy Marzullo: ... want him to do. Also, why does he seem to think that Manley's good for the city? I mean, if nothing else, having him in this position at this point is bad for the police department's relationship with the community.

Scott Henson: Right.

Mandy Marzullo: And-

Scott Henson: Yeah.

Mandy Marzullo: ... it's deteriorating trust and there are going to be even more diminishing returns of APD's effectiveness. So, why? And also, why does Brian want this job?

Scott Henson: Right, at this point, at this point. Well, and I'm definitely hoping that things like teasing him in this song is going to contribute to him not wanting this job. I mean, him resigning might be the shortest distance to this. I think that to give the most generous interpretation possible about why he's not doing it in terms of the rumors you hear and what is being said behind the scenes.

Mandy Marzullo: Okay.

Scott Henson: They didn't really take seriously the idea of firing Manley before the George Floyd protests, he was going to blow us off, I think, and had blown us off. Then that happened and all of a sudden a bunch of police chiefs all around the country were fired, in Atlanta, in Minneapolis and I forget where else, but there was a whole slew of them.

Mandy Marzullo: Yeah.

Scott Henson: A lot of police chiefs fired. And so, all of a sudden the question of where do you find someone you could actually label as progressive in the new era becomes more difficult and I think that there has been some concern expressed about, "Well, are we going to find anybody who's better when every city in the country right now has fired their police chief and they're all looking for a progressive chief, because there's not going to be that many people out there," is the thought. I don't know what I think about that, but that's been said to me a couple of times.

Mandy Marzullo: Yeah. And I think I go to, we don't need a progressive person, we need someone who sets the tone so that the agency isn't killing citizens.

Scott Henson: Right.

Mandy Marzullo: And that's where we are, they are killing people.

Scott Henson: Well, I think more than that though. We are in a situation where the Austin City Council has tried to move the department into a more progressive posture.

Mandy Marzullo: Yeah, and I think that that's good but, I guess my point is that we could go just to not killing people and having it be better than what it is now.

Scott Henson: Sure. 

Mandy Marzullo: I mean, if it's about protecting the public, Manley's failing. Not only are they failing to protect the public on a regular basis, they're actually a public safety concern. 
Scott Henson: Right, right. The Mike Ramos video finally came out this week and it very clearly shows that Ramos was not threatening the officer's lives, that there was no justification whatsoever. It was really an execution. It was remarkable.
Mandy Marzullo: And terrifying.

Scott Henson: And terrifying. So no, I certainly agree with that. No, I don't understand what the holdup is. Maybe they want to... I've heard, "Well, they want to wait until after the budget." But again, why if the city council has stopped listening to him then why do you want him to be your spokesperson-

Mandy Marzullo: Yeah.

Scott Henson: ... during the budget? None of it makes much sense to me. So, like I say, you learn something new every day and I have learned that I don't know as much as I thought I did about these things.

Mandy Marzullo: Wow. I hope you make progress soon. Next up it's time for a game, Something, Nothing or Everything, in which Scott and I rate the relative importance of recent news stories. Recent state level polling from Progress Texas cited in the Austin Chronicle found that 73% of those surveyed agreed that police brutality is a "somewhat serious" or "very serious" problem. Similar lopsided majorities feel that police departments should reform their use of force practices and that non-police, other types of workers should be responding to community issues such as mental health and homelessness. A smaller majority, 53% agrees with the statement, "We need to reform the police." Pluralities support reallocating police funding to help and homelessness, 46%, and agree that police unions have too much power, 43%. And that police don't need military gear and vehicles, 48%. Large numbers are not sure in all three cases. Scott, tell us, is this something, nothing or everything?

Scott Henson: This is something headed toward everything. These numbers are remarkable compared to just a few years ago. I was looking back at an internal poll that was taken here about three years ago now and when you look at the level of support for Black Lives Matter compared to what we're seeing in polls like this and quite a few other national ones, this was a Texas state level poll, it's night and day. Public opinion has just absolutely transformed. And the only reason I say something headed toward everything is that public opinion is fickle and who knows whether it survives the remainder of the Trump administration, whether that's nine months or five years. There's a lot that can happen to change that but at the moment this is all incredibly positive and I never thought I'd see it on some of these question. We're seeing levels of concern about issues that were truly fringe topics a quarter century ago. How about you, something, nothing or everything?

Mandy Marzullo: I think I agree with something, with a slightly more pessimistic view. I agree that it's really exciting, especially to see a majority of people agreeing that police brutality is a problem. But when you look behind that, sort of the systemic reforms still look like we've got a long way to go with sort of public education about how we need to restructure law enforcement. 

Scott Henson: Right.

Mandy Marzullo: And some of that is that people have only really been talking about it for a handful of months and that's during a pandemic. But, I think that's where we need to focus the conversation and hopefully it will continue in that path. 

Scott Henson: Right. Well we talked about this last month that there wasn't just one bad law or one or two bad things that happened that created mass incarceration and that created racial profiling-

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: ... and police brutality. There were hundreds and hundreds of laws empowering police and promoting prisons and incarceration solutions over the course of many decades.

Mandy Marzullo: Yeah.

Scott Henson: And so, it's going to take a decade or more to roll all that back, it's not something that you're just going to look up and have one good legislative session and then slap your hands and we're done.

Mandy Marzullo: Yeah, no, and you're right. I mean, but to be sort of my pessimistic self, under the current path it's not going to happen in my lifetime. We're 90 years away from reversing mass incarceration at the current pace of reform. So hopefully this process is going to accelerate. I just, I guess, am getting impatient.

Scott Henson: I don't blame you, I'm definitely with you there. All right, in Travis County's runoff election on July 14th, Jose Garza defeated incumbent Margaret Moore in overwhelming fashion. Garza ran on an agenda of abolishing money bail, ending prosecution of low-level drug cases and pulling the Travis County DA's office out of the state prosecutor's association. Mandy, is this something, nothing or everything?

Mandy Marzullo: I'm going to go with everything, everything local. I mean, this is really exciting after being really pessimistic about the last one. Prosecutors obviously have a great deal of power and someone like Jose really has the potential to transform what the Travis County justice center looks like and how it operates on a regular basis if he's more collaborative on all cases. If he's not prosecuting cases that don't make sense to be prosecuted, like driving with an invalid license, you could see a big change in what it looks like to be a low income person in Texas or in Travis County, and that's really exciting. And then add to that that we have a public defender office that's opening up, I think Travis County could go from being one of the worst counties to be charged with a crime in Texas to one of the most just ones.

Scott Henson: Well, it's definitely the case that compared to all of the other DAs in Texas who have been given that progressive label-

Mandy Marzullo: Mm-hmm (affirmative).
Scott Henson: ... he is really the first one that would merit a progressive label compared to sort of the national players.

Mandy Marzullo: Yeah.

Scott Henson: Like compared to a Larry Krasner in Philadelphia, for example. Jose really does have policies that are as progressive as they suggested and many of them are implementing things that Krasner wanted to do. But deciding you're not going to prosecute these less than a gram drug cases is a very, very big deal. I would put this at definitely something and only out of pessimism for politicians implementing their campaign promises would I not say everything.

Mandy Marzullo: Jose, if you're listening, I'm the one that has faith in you. I just want to be on the record with that.

Scott Henson: Well, I always wait and see, but if Jose shows up and does everything that he suggested, or even really two thirds of it, because there's no way he won't show up and find some of the things he said may not have been realistic or may have impediments that you don't see until you're the one implementing it.

Mandy Marzullo: Yeah.

Scott Henson: I'll cut him a little bit of slack there, but if he does two thirds of it then he'll easily be the most progressive prosecutor in Texas. And then it really will be everything, it really will be sort of the new model for what we want to see in the next phase.

Mandy Marzullo: Yeah.

Scott Henson: Because we just didn't see it from the Kim Oggs and Margaret Moores of the world.

Mandy Marzullo: No. No, they're just prosecutors. 

Mandy Marzullo: All right. In Houston the police department finally released a long awaited audit of their narcotics division in the wake of a botch drug raid in January 2019 in which two homeowners and their dog were killed and four officers were wounded. It turned out the search warrant being executed was based on an informant fabricated by Officer Gerald Goines, sparing greater scrutiny. Now the DA's office has identified more than 160 cases in which Goines' testimony was the sole evidence against a defendant, one of whom turned out to be George Floyd, the man killed by police in Minneapolis whose death launched global protests in June. This audit demonstrated the laxed practices that allowed Goines to fabricate evidence with impunity were entrenched and widespread. Scott, advocates have been trying to get this audit released for months. Now that we've seen it is this something, nothing or everything?

Scott Henson: I had been hoping this audit would be everything, but it turned out to only be something I'm afraid. That's really just because they... It was an audit, it was not an investigation. And so, what this audit demonstrated is that the laxed oversight that allowed Gerald Goines and his partner, Steven Bryant to get away with fabricating informants and evidence, and really just runny roughshod over people's civil liberties, those laxed methods were absolutely everywhere in the narcotics division. The narcotics division is 175 officers and it's setup in squads of eight to 12 officers a piece.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: And so, they picked several of those at random and picked a handful of officers who had had allegations of misconduct against them and looked at all their case files. And what they found was no supervisory oversight in large, large numbers of them. And in particular there was one form that for every case a sergeant and a lieutenant is supposed to physically sign off to say that everything that was supposed to be done was done in this file and-

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: ... everything's kosher and someone else has looked at this. Well, that document was missing in about a third of the files. In many of the files the auditors found the information was incomplete or didn't support the conclusions that-

Mandy Marzullo: They'd draw.

Scott Henson: ... they'd draw with it. And in general it was just sloppy and messy, and consistently sloppy and messy. And so, while it didn't give us a smoking gun, it didn't identify additional officers who may have fabricated evidence, what it showed us was if there were more officers who fabricated evidence, the oversight systems were so laxed that just like Gerald Goines and his partner they would almost certainly have not been caught. 

Mandy Marzullo: Yeah. I guess my concern is, like is this nothing in that it's identifying one organ of HPD that has a problem while ignoring problems that are probably pretty pervasive in HPD. I mean for supervision to be this lax-

Scott Henson: Right.

Mandy Marzullo: ... I find it hard to believe that that's isolated to the narcotics division.

Scott Henson: That's right, you don't just poorly supervise in one area, you poorly supervise in all the areas that you supervise. And so if HPD management and Art Acevedo are screwing this up there's a decent chance that they're screwing up elsewhere.

Mandy Marzullo: Yeah.

Scott Henson: And we saw that here in Austin, when Acevedo left all of a sudden all the skeletons started to fall out of the closets and things like the DNA lab falling to pieces.

Mandy Marzullo: Yeah. I mean, we're talking about big, big problems. I mean, the Austin crime lab failed to keep evidence at the proper temperature.

Scott Henson: Right. It was a disaster. 

Mandy Marzullo: Yeah.

Scott Henson: So, yeah, I have to say what this said to me was, if I were in a supervisory position like on the city council or in Mayor Turner's position, I would be looking to abolish the narcotics division just straight up. I mean, what I saw in that audit is an agency that is not salvageable.

Mandy Marzullo: Yeah.

Scott Henson: Really the only way to go in and make them compliant would be to provide additional layers of supervisory staff that would take other officers off of productive pursuits really just to cover a lot of paperwork and it's all for these less than a gram cases that we were talking about earlier that probably don't really need to be made anyway.

Mandy Marzullo: Yeah. 

Scott Henson: I mean for the most part that's evidence of low-grade addiction or whatever, it's not something where law enforcement intervening is really going to solve the problem. 

Mandy Marzullo: Yeah, no, it's a public health problem.

Scott Henson: That's right. 

Mandy Marzullo: Yeah, no, and I would go as far as to say it sounds like its time for an overhaul of HPD. It has its own shootings-

Scott Henson: Right.

Mandy Marzullo: ... and issues with public safety, so why not use this opportunity to fulfill the promises. Art Acevedo is pretty vocal about how important it is to be measured in the use of force, so let's take him up on that.

Scott Henson: Right. And that's an excellent point about the broader management at HPD. Probably part of the reason that I focus in on the narcotics division itself is I had worked, years ago this now happened 20 years ago, the Tulia drug stings were sort of the launch of the modern criminal justice reform movement in Texas.

Mandy Marzullo: Yeah.

Scott Henson: And they involved a fellow named, Tom Coleman, who was very similar in profile to Gerald Goines. And all of a sudden there was this long string of potential innocence cases where he was the only testimony against these folks and many of them he just straight up set them up.

Mandy Marzullo: Yeah.

Scott Henson: Just lied on them in court and set them up. And we had tried back in 2001 to get a law passed requiring corroboration for police officers in undercover situations, and we couldn't get that passed, it was scaled back and we ended up getting it only for informants, for confidential informants. 

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: And it turns out most drug cases are made with informants not cops, and so that still had a pretty big effect. But here 20 years later we see the exact same issue come up again.

Mandy Marzullo: Yeah.

Scott Henson: So the failure to put in checks and balances 20 years ago just lets the practices flourish and-

Mandy Marzullo: Yeah.

Scott Henson: ... 20 years later you see another huge scandal and blowup at the state's largest narcotics division, maybe second after DPS, and it would be preventable if you would just put in measures like that corroboration requirement. So-

Mandy Marzullo: And oversight. I men, I think it's culture more than anything.

Scott Henson: Right.

Mandy Marzullo: I've been talking a lot-

Scott Henson: That's right.

Mandy Marzullo: ... with Professor Laurin at UT who specializes in police practices and she made that point that sometimes when you enact a standard it fails to change behavior because people just sort of find a new way around it. And that it's really important to couple changes with training and they need exposure to the harms that they can create. I think the attitudes of a lot of DAs in our state changed or change when they meet people like, Anthony Graves and Michael Morton who can talk about just how innocent they were, how setup they were and how their lives and the lives of their families were destroyed.

Scott Henson: Right. Those innocence cases really did change individual minds on a personal level.

Mandy Marzullo: Yeah, and I think that narcotics officers maybe need to see that and understand it and be aware of the harm that they could do. 

Scott Henson: Right. But the idea that George Floyd was one of those folks who was potentially setup by Gerald Goines. Kim Ogg mailed him his letter-

Mandy Marzullo: Oh my God.

Scott Henson: ... to an old address in Houston, and so he would never have received it. He would never have gotten the information that that case possibly could have been overturned. But it's so poignant and-

Mandy Marzullo: Yeah.

Scott Henson: ... so outlandish and ironic.

Mandy Marzullo: Yeah, there's just so many layers of irony here. Maybe irony's the wrong word. But yeah, it's hard to process. 

Scott Henson: It is, there's a lot going on. Too much, doing too much the Houston narcotic division.
Scott Henson: Now it's time for our rapid fire segment called, The Last Hurrah. Mandy, are you ready?

Mandy Marzullo: Ready to roll. Five years ago this month, Sandra Bland died in the Waller County jail after a DPS trooper arrested her for failure to signal a lane change. Legislation bearing her name passed the legislature but keep provisions like limiting arrests for Class C misdemeanors were stripped from the 2017 Sandra Bland Act. Scott, what are the chances that the bill finally passes in 2021?
Scott Henson: You know, knock wood we are hearing all sorts of positive things about this bill and that there's more support than ever for it and that the police union's poor behavior in opposing it last session is coming back to bite them. And so, I am incredibly optimistic at the moment. I know every time I allow myself that we're immediately slapped down, so it makes me fearful. But at the moment I feel like that that bill has a great chance to pass.

Mandy Marzullo: Excellent.

Scott Henson: All right. Both Texas and the federal government resumed executions this month. Mandy, what's the significance here?

Mandy Marzullo: Really it's with the federal government. Before this month the last execution had occurred 17 years ago and what they did actually was execute three people in a quick clip.

Scott Henson: Hmm. 

Mandy Marzullo: And that signals a big policy change at the federal level. Okay, last one, the San Antonio Police Department, which has notoriously had trouble firing bad cops without arbiters reinstating them to the force, finally was able to terminate an officer who had once fed dog feces in between two slices of bread to a homeless person. They couldn't fire him for that, but another incident, a feces related harassment of a pregnant police colleague finally got him kicked off the force. But almost as soon as he was gone another cop who repeatedly called a suspect the N word while handcuffing him was reinstated to the force. Scott, why can't San Antonio keep creepy racist jerks off their payroll?

Scott Henson: It's astonishing, it is absolutely astonishing. But the short answer is chapter 143 of the Texas Local Government Code.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: Basically San Antonio is an example, the most extreme example we have of the flaws with the state civil service code and giving officers well beyond the benefit of the doubt. But really a leg up in defeating any accusations against them.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: So for example, police officers if they're accused of misconduct are specifically to see any video that might have been taken related to the incident and the investigative case file of all the evidence against them before they are interviewed over that misconduct and then they get to come in with their union lawyer.

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: Well, imagine anyone else in the world under similar circumstances. Imagine someone who allegedly killed someone or committed a rape-

Mandy Marzullo: Well, then Senator Ellis had a bill that would or was in developing a bill that would require that someone have those rights.

Scott Henson: That you get to see every bit of evidence against you-

Mandy Marzullo: Mm-hmm (affirmative).

Scott Henson: ... and any video before you and your attorney then-

Mandy Marzullo: Yes.

Scott Henson: ... talk to investigators. Well, it invites you to craft a story that is most likely to get you off and that won't contradict any of the evidence. And so, the civil service code is a problem in all the cities that it operates in. San Antonio has become a caricature of the problem and to have done so at this moment means that they're certainly going to be held up as an example in the next legislative session. Really, it's an embarrassment at this point that it's gotten this bad. 70% of officers who they fire get back on to the force.

Mandy Marzullo: That's insane. 

Scott Henson: 70%. 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 can subscribe to the Reasonably Suspicious podcast on iTunes or SoundCloud or listen to it on my blog, Grits for Breakfast. 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.

Transcribed by Edited lightly for accuracy and clarity by Scott Henson.

2 comments: said...

Where can I find a link to that jingle?

Gritsforbreakfast said...

@Zach - Right now it's just in the podcast in the segment that begins at 23:25. Next week we're releasing it with a little video and it'll have a stand-alone link.