Thursday, October 01, 2020

Task Force on reforming Houston police: Empower oversight board, remove civil-service barriers to accountability at #txlege, and have someone besides the DA prosecute police misconduct (Grits has a suggestion)

"The loss of public trust and credibility makes it difficult, if not impossible, for the police to forge partnerships in local communities, let alone expect community cooperation in criminal investigations," declared the Houston Mayor's Task Force on Policing Reform (TFPR), which issued its recommendations this week. Even if your correspondent might have gone further, or may quibble with their suggestions (as indeed, I will, below), they're more significant than Grits had anticipated. Good for them!

The Houston Chronicle reported that the Mayor asked for "a few days" to digest the report and meet with the task force chairman, sub-committee chairs, and council members before formulating a response.

Grits, however, has no need to wait. Let's dig into this report and see what's there. Obviously at 104 recommendations, we don't have time to discuss all of them. And some of them are rather small-time, anyway. But let's run through the big stuff, describing their recommendations with Grits' own annotations. This is Part One of what I anticipate will be a three-part analysis: I read the 150-page report so you won't have to! :)

Community Policing (yawn)

So-called "community policing" has always been a hustle. No one can define it and in practice departments interpret it as officers spending time hanging out with whomever instead of responding to calls or performing police work. As fear of crime has declined as the go-to driver of more police spending, "community policing" offers departments a new metric -- percent of time available -- to demonstrate that we always need more officers no matter what is happening with local crime stats. At HPD, Chief Art Acevedo uses the term "relational policing," but, "The Task Force believes it is similar, if not mostly the same." In other words, it's a buzzword intended to confuse with results that can't be measured. None of the recommendations here seem destined to reinvigorate this tired and fruitless approach, from giving cadets community tours, making them sit through more lectures, or having officers document "out of car engagements with civilians and/or businesses."

Updating promotion matrices to give points for community policing might be helpful, once there is a consensus on what exactly officers should be doing, but the report failed to discuss taking points away for officers with misconduct records. That might help, too. In 2017 legislation, Houston state Rep. Senfronia Thompson recommended deducting points for officers found to have engaged in misconduct. Perhaps it's an idea worth reviving?

I liked the "mobile storefront" idea, which was the final recommendation (#16) in the community policing segment. Most of the rest in this section seemed pretty lightweight.

Independent Police Oversight Board

Grits has never been a great fan of civilian-review boards because most of them are as worthless as the one in Houston. Austin's oversight board, along with the Office of Police Oversight (essentially a Police Monitor-Board model), at least has become a window into policing problems we've never had before. (Local press don't cover the complaints, but they're out there from a credible source, and advocates discuss them.)

The Task Force agreed with city council members who recently said they have "no confidence in the current format" of the IPOB. Its powers are truncated and it fails to perform even the duties it's been assigned, they concluded. (These recall the complaints of an IPOB member who recently resigned over the group's inefficacy.) The Task Force laid out three broad models of police oversight:

  • Auditor/Monitor Model
  • Investigative Model
  • Review Focused Model

They recommended IPOB expand to 31 members and adopt an "investigative model," but Grits wonders, "to what end?" Their investigation results would not be part of the department's decision making process when it comes to disciplinary decisions. They have their own investigators for that in the Internal Affairs division. How will these investigations affect real-world outcomes, including policies and practices, much less in the individual cases they investigate?

Since it's been empowered to a) review previously confidential documents and b) publish sometimes de-identified results, Grits has found Austin's fusion of Monitor/Review models (to use the Task Force's nomenclature) gives advocates more empowering information than we had before. The oversight board here reviews cases with an eye toward recommending policy improvements, and the record they create was been a valuable tool for documenting problems in a way that city officials are able to hear. Requiring the Chief to respond in writing to civilian oversight recommendations has also helped.

The Task Force does recommend hiring dedicated, paid staff to support the civilian review board, including investigators who it hopes will have "subpoena power." (FWIW, I'm not sure what more they think they'll get with a subpoena beyond what they get by mandating access to the department's full file.) Regardless, having staff led by a dedicated Police Monitor's position, as Austin did, has the added benefit of creating a counterweight to the chief in the city bureaucracy on police-misconduct questions, where officials might not listen to part-time civilian volunteers. That's a big practical benefit and has been welcome change.

Legislative changes needed to civil service

The portion of the report which made your correspondent jump out of his chair and whoop with sheer delight addressed legal changes needed at the state or city level, but with particular focus on the state.

They want to change the much-derided 180-day rule in two ways - one significant, one not. For the uninitiated, state law and many union contracts say officers in civil service cities can't be punished more than 180 days after they commit a misconduct violation. The Task Force recommended changing this in two ways: 1) have the clock launch on the "date of discovery" of the misconduct instead of the date it occurred, and 2) change 180 days to 210.

The first change is significant; the second much less so, though the first change magnifies its impact. Together, they'd be an important reform. That said, make Grits Philosopher King and I'd say for police the rule should be a full year from the date of discovery.

The Task Force wants to fix another civil-service practice your correspondent has railed against for years: "Require officers involved in incidents in which their conduct is under scrutiny to make statements at the beginning of the investigation." As the Task Force noted on p. 34, "Current practice allows officers to defer making statements until after the investigation is complete and they can read the entire file," as well as review any body camera footage.

Imagine if in a regular murder investigation they waited to interrogate the suspect until s/he reviewed the investigation file with their lawyer: Unthinkable!

Who should prosecute police misconduct?

The Task Force believes the District Attorney has a "symbiotic relationship" with the police department, which results in an "inherent pro-police bias." Thus they think "an independent agency," unnamed in the report, should prosecute those cases instead.

This has been suggested many times before. Some iterations see special prosecutors appointed each time, though that gets expensive.

Speaking of which, Texas Attorney General Ken Paxton has said he'd take the job, but I don't think anybody would trust him.

Grits has a suggestion I believe would be popular with everyone but Alex Bunin, the Harris County Public Defender: I think the Harris County Public Defender Office should take over prosecuting cops instead of the District Attorney.

I've given this a lot of thought: Bunin and his shop are respected, and they already have an oppositional relationship with the Houston PD. I can't think of another outfit that would care less about pissing off the union. They've got the talent in the office to do the job. Plus the commissioners court just expanded their budget.

Now, they may not want to do it. Many of those folks are life-long defense lawyers who chose not to go into prosecution for a reason. But sometimes, the person who doesn't want the job is exactly the right person to handle it responsibly. (They know what's required; that's why they didn't want it!) It wouldn't be that many cases by comparison to their usual docket and I believe they're the right crew to handle the job.

Next time: Improving the complaint process, body-cam policies, use of force, and "rebuilding trust through transparency."


Texasyankee said...

In one sense, I like the last suggestion because it is similar to one of my own naive ideas: public defenders and prosecutors should not just be in the same office but be the same people. A lawyer would be prosecuting one case while also being the defense attorney on another case. This would help reduce the great disparity in funding for the district attorney's office and the public defender's office.

The problem with your suggestion is funding: county commissioners don't like funding public defenders. If the public defenders were also prosecuting the police, public pressure to not fund the public defenders would be intense.

Anonymous said...

Can you imagine the heartburn for an elected DA who's staff has to work both sides? Convict too many, get bored out for being a shit defender. Convict too few and you're out!!

Anonymous said...

Many are too worried about conviction percentage and only take the platinum cases and let the silver and gold cases go. The Bell County DAs office is good example.

Tom said...

Texasyankee: Your idea isn't so crazy. In the United Kingdom in recent years with the Crown Prosecution Service, the situation has become similar to what we have. But 15 or 20 years ago, barristers were hired on a per case basis to prosecute cases. And, because barristers all are solo practicioners, it wouldn't be uncommon for a barrister to go to court with a bunch of files, some he prosecuted and some he defended. And, the guy on the other side of some of those cases may be in chambers with him.
Remember, in the UK, there still is a distinction between barristers and solicitors. The solicitor puts the case together and takes the "brief" to a barrister of his choice. Barristers' rules of ethics even distinguish between the "professional client," i.e. the solicitor and the lay client.
The distinction is so great that it is considered unethical for a barrister to prep his witnesses to testify. That's the solicitor's job. I know one barrister who first prepped a witness to testify at the Rwanda Tribunal. The witness was his client charged with genocide.
There's a lot to be said for the old British system. Barristers who were on both sides didn't feel like they were doing the Lord's work. They were just lawyers doing a job.

Anonymous said...

If HPD and it's union were buddies with the District Attorney's office under Ms. Ogg, the point regarding the two would be different but given the high levels of animosity that exist, and Ms. Ogg's willingness to politically prosecute cases against police that her office has no hope of winning, it's a wash at best. Throwing the responsibility to the public defenders office could work better now that Harris County Commissioner's Court is full of Democrats but the needed level of funding just for the defense portion of their duties has not changed enough to make me think this would be a good move. And as much as many of us like Alex, too many of his staff lack the experience and snap to really make successful cases against most of the talent the cop unions bring in.

Anonymous said...

Community Policing is an okay idea in general but it amounts to the police chief saying "we need three times the manpower and budget to succeed in our mission". No thank you.

IPOB: Even if the necessary changes were made to state civil service law, and they won't be under this governor and legislature, the activists and reformists are not the people who would be appointed to the board, nor would the board ever get final say in discipline like said reformists dream of. The board member resigning over the shooting from earlier this year must have been dreaming to think the minds of the rest of his peers would've been changed given the circumstances that led to the chief firing the four cops and then the board suggesting less discipline. From what I'm told, racial politics came into play and the idea that the mentally ill person killed provided enough fodder to justify the shooting despite what I thought from released accounts.

But as Grits stated, to what end? Changing to an investigative model sounds great until you figure out that the city of Houston is the lowest paying big city in the state so any talented investigators aren't going to stay, if they ever agree to come on in the first place. Like the crime lab staff, the worker drones get less than half what they'd make elsewhere and quality people cost money. The IA model of HPD may seem flawed to some of you but the imagined thin blue line would be enhanced having outsiders do the dirty work, the investigators having limited experience would be steamrolled all the time.

180 Day Rule: HPD has IA squads that are assigned all the most political or outrageous cases. They are given as many people as they need and are expected to complete a case in under 30 days so adding time to the clock or whining about civil service laws that give officers time to respond are not generally factors in losing cases. Some of the time, the clock is allowed to run past which limits the level of discipline but usually results in the offending officer to be marginalized in an assignment where they can't continue causing harm for one reason or another. I'd like to see more than a couple cases where the 180 rule truly impacted the result, more likely just ending up in the desired result where managers could wash their hands of responsibility.

Alex Bunin said...

I just saw your suggestion. No. I have never prosecuted anyone in 35 years as a lawyer. I will not start now. Otherwise, thanks for the compliments.

Gritsforbreakfast said...

Alex, the public defender office is a government agency, not a personal fiefdom. I understand why you wouldn't want the task, but that doesn't change the fact that you're a better option than all the others. Y'all simply don't face the same conflict of interest the DA does. And the other option is Ken Paxton.