Texas Voices v. small towns; CLEAT v. Governor, Lawyers v. client, and other stories

Here are a few short tidbits while your correspondent's attention is focused elsewhere:

Texas Voices may litigate to overturn illegal small-town sex-offender residency restrictions
See bloggerly coverage of possible litigation by Texas Voices for Reason and Justice to repeal municipal sex offender residency restrictions in 46 small municipalities which are not legally authorized to impose them. See an announcement from Texas Voices leader Mary Sue Molnar, who's done a great job with her team building the group from scratch and giving it a credible presence at the Legislature. Legal action would kick their work up a few notches. Good for them. I'm proud of you, Mary Sue, keep up the great work!

Wrong question about lawyers refusing to help death-row client
At the American Constitution Society blog, Brandon Garrett poses the question, "Can a Lawyer Oppose His Client's Plea to Live?" In Texas, we know the answer to that question is clearly, obviously, and incontrovertibly, "Yes." The real questions are, "Does that make said lawyer an asshole?," and "Will the lawyers' peers at the state bar tolerate such behavior as acceptable?" Grits believes the answers to those questions are also "Yes," and "Yes." I'm kind of pissed at the defense bar right now. They're not very good at policing their own, Mark Bennett's on-point blog screeds notwithstanding. See the latest on the case from the Texas Tribune and coverage from The New Yorker.

CLEAT adopting Alinskyite attack tactics vs. governor
Fascinating. Our Alinskyite friends at the Combined Law Enforcement Associations of Texas (CLEAT) are mad at Governor Greg Abbott, reported the Dallas News' Brandi Grissom, because he "appointed Josh McGee, a vice president at the Houston-based Laura and John Arnold Foundation, to the State Pension Review Board this week.The review board, created by the state legislature, is charged with overseeing state and local government retirement systems. McGee has penned articles warning of financial ruin cities could face because of mismanaged pensions." CLEAT, naturally, has adopted a Chicken Little stance, pronouncing that the end of the world is nigh and the Governor has sold them out. That didn't take long!

Anthony Graves hagiography
Check out a sweet little profile of exoneree and Houston crime-lab board member Anthony Graves at Houstonia. I'd vote for him. What's he running for, again?

Well, probably not the only one
"The Real Problem With Police Video" Should police control the footage?

Apologia obscures accountability on Sandra Bland death
Read the Austin Statesman's Ken Herman on "What white people think about Sandra Bland" "Cops hands not bloodless but Sandra Bland not murdered." For the record, Grits never thought she was murdered. But I do think, as Herman finally acknowledged near the end of his column, that "Law enforcement’s mishandling of this case led directly to Bland’s death." And I wish law enforcement and their apologists spent as much time focusing on that fact as they do debunking an emotional statement to the media by Bland's family in the immediate aftermath of her passing. Sandra Bland wasn't murdered. So what? If "Law enforcement’s mishandling of this case led directly to Bland’s death," what will be done to impose accountability and ensure similar "mishandling" won't recur in the future? Why isn't that the focus of MSM opiners?

On the consequences of locking up Mom
Researchers at Sam Houston State are studying whether having an incarcerated mother contributes to criminality among adult offspring. The not-shocking answer from a longitudinal study is "yes."

Charles Sebesta disbarred!

BREAKING: Charles Sebesta, the prosecutor who withheld exculpatory evidence at Anthony Graves' capital murder trial, has been disbarred after a private trial vs. the state bar's disciplinary counsel, reported Pam Colloff on Twitter.

Here's a copy of the judgment. See related Grits coverage.

MORE: See Pam Colloff's initial coverage from Texas Monthly. See coverage from the Texas Tribune and the Houston Chronicle.

State bar: 'Just cause' to think prosecutor Charles Sebesta commited misconduct

Charles Sebesta, the former Burleson County District Attorney who withheld evidence in Anthony Graves' 1994 capital murder case, may finally face disciplinary action by the state bar. But regrettably proceedings will be held in secret. Here's Texas Monthly's Pam Colloff describing the latest development:

It’s been eight years since the Fifth Circuit Court of Appeals found that the DA who prosecuted Anthony Graves for capital murder had done something unconscionable : withheld favorable evidence and used false testimony to secure a conviction—a conviction that sent Graves to death row.

Since that federal ruling came down in 2006, granting Graves a retrial, many good things have happened: Anthony was freed from prison in 2010, after all charges against him were dropped; he was formally exonerated by the State of Texas; and he received $1.4 million in compensation for the eighteen years he spent in prison for a crime he did not commit. But the man who secured his 1994 conviction—former Burleson County DA Charles Sebesta— never faced any consequences.  The state bar took no action against him. Even when he continued to impugn Graves’ character, telling Texas newspapers as recently as this January that Graves was guilty of murder,  he did so with impunity.

Finally, last week—twenty years after Graves’ wrongful conviction—the bar took a small but significant step toward ensuring that Sebesta would have to answer for his actions. The bar’s chief disciplinary counsel determined that there was “just cause” to believe that the former prosecutor had engaged in misconduct in Graves’ case. This finding followed a lengthy investigation, which the bar conducted after Graves brought a grievance against Sebesta this March. (Graves was only able to do so because lawmakers recently passed Senate Bill 825, which changed the existing statute of limitations, allowing exonereees to file such grievances with the bar up to four years after their release from prison.)

A legal proceeding will now follow, in which the bar will decide whether or not to dismiss the grievance, or sanction Sebesta. If the bar decides to sanction him, he could receive a punishment as light as a reprimand—essentially a slap on the wrist—or as severe as disbarment.

Though Sebesta has always put great stock in trying people before the court of public opinion—to this day, he continues to insinuate on his website that Graves is a murderer —he has asked that the bar hear his case in a confidential proceeding, rather in than open court. (The bar allows attorneys who are the subject of such grievances to choose whether they will have their cases heard in a district court before a judge or jury, or privately, before a panel of lawyers who serve on the bar’s grievance committee.) “His conduct against Anthony Graves was in a public proceeding and he continues to make public attacks on Mr. Graves,”  said Kathryn Kase, executive director of the Texas Defender Service, a non-profit organization that represents Graves, along with attorneys in the Houston law firm Susman Godfrey. “He should defend his conduct in a public proceeding, for all to see.”

There’s no word yet on when the bar will make its determination about Sebesta. Whether or not the bar will take action at all still remains to be seen. Except for the recent disbarrment of Ken Anderson, the ex-Williamson County D.A. who prosecuted Michael Morton,  the bar’s track record for disciplining prosecutors has been abysmal. From 2004 to 2012, in 91 criminal cases in which the courts decided that Texas prosecutors had committed misconduct, not a single prosecutor was ever disciplined.

For a long time, Sebesta has claimed that the state bar's prior failure to discipline him meant he'd done nothing wrong. (E.g., "Had I withheld evidence in the Graves Trial, ‘sanctions’ would and should have been appropriate. But that did not happen and the State Bar of Texas obviously agreed with their dismissal of the grievance!") But the bar's stated reason for failing to take action was a four-year statute of limitations on older cases. Then, Sen. John Whitmire's SB 825, passed last year, changing the statute of limitations for bar complaints related to withholding exculpatory evidence. Now, exonerees have up to four years after their release to file a complaint, which is the provision that placed Mr. Sebesta in the crosshairs.

Grits would love to have been a fly on the wall when Sebesta received the news about the state bar's latest action. I bet the old man was apoplectic. But I wish the former prosecutor had opted for a public jury trial instead of hashing it out in secret. Charles Sebesta never hesitated to go public with his various allegations and insinuations about Anthony Graves, and what's good for the goose ...

MORE: Find below the jump a press release from the Texas Defender Service on the topic, including a statement from Anthony Graves:

Graves: State bar should discipline Charles Sebesta

Now that the Texas Legislature has extended the statute of limitations for the state bar to discipline prosecutors, exoneree Anthony Graves wants former Burleson County District Attorney Charles Sebesta to face discipline for withholding exculpatory evidence in the trial that sent him to death row. See coverage from:

• Texas Monthly
• Houston Chronicle
• Texas Tribune
• Austin Chronicle
• Bryan/College Station Eagle 

Isolation, mental illness, and a call for legislative oversight of Texas ad seg

Check out a pair of op eds in the Houston Chronicle published today about solitary confinement from a former Texas Department of Justice general counsel Steve Martin and exoneree Anthony Graves, who spent nearly two decades on death row in "administrative segregation," as Texas euphemistically calls it:

• Martin: Long-term segregation fails to solve mental illness issue
• Graves: Solitary confinement brings no benefit to prison inmates

Martin made, essentially, a cost-benefit argument: "Right now Texas, like many other jurisdictions, is wasting money and undermining public safety with its segregation policies and practices. We simply over-use administrative segregation. Given the lack of human contact and very limited access to treatment programs, inmates are functionally programmed to fail when held for months and years in such confinement. Because the conditions are so harsh, it should be used sparingly as the costs are high - for offenders, taxpayers and public safety." Good stuff; read the whole thing.

Like his Congressional testimony on the topic, Graves' column focused on his personal experience in isolation, concluding thusly:

I was proven innocent in 2010, and became Death Row Exonoree No. 138. Some of us on Death Row were innocent. Some were unlawfully sentenced to death and had their sentences thrown out. We all suffered the same.

If you believe in the death penalty, I hope you would at least agree that some of us - the innocent ones and ones unlawfully sentenced to die - did not deserve this torture. Even if you believe in the death penalty, these torturous conditions make no sense. They damaged guys so much they could not repent for their crimes. Guys could not focus on the wrong they had done when they had a legitimate complaint of being tortured in administrative segregation by the state of Texas. And the torture was unnecessary.

Many people housed in solitary confinement in Texas prisons are not in prison for the rest of their lives. These individuals will one day return to our communities with all the mental health issues and physical problems administrative segregation causes. Hundreds of people are released from solitary confinement directly to the street each year with no oversight of any kind. After years in solitary, these individuals will find the outside world very difficult to navigate.

Now the Texas Legislature is considering two bills - House Bill 1266 and Senate Bill 1003 - that will take a hard look at the administrative segregation policies that caused me so much harm and continue to harm so many behind prison walls. These bills call on Texas to find better solutions to solitary.

I lived through solitary and I know there is a better way. These bills should become law because solitary is simply a tool to break a man's spirit - it doesn't make him better or our communities safer.

RELATED: See more on solitary confinement and mental health and if you follow the subject don't forget to check in periodically at the indispensable blog Solitary Watch.

Dogs that didn't bark: Open prosecutor files, reduced drug penalties

In the Texas House Criminal Jurisprudence Committee on Tuesday night, the spirit of the room was rather odd when Rep. Joe Moody presented his committee substitute on criminal discovery reform. No longer a reciprocal discovery bill, Moody laid out legislation featuring a one-sided requirement for the state to hand over evidence with no concomitant defense obligation. I'd heard rumor Sen. Ellis might do that on the senate side, but hadn't expected the change in Moody's version. (Happy day for the defense bar, but I hope it doesn't kill the bill. Becky Bernhardt has been working hard.) There was little testimony by anyone but some usual suspects (someone from the El Paso DA testified for it) and everyone's tone and posture was a bit like someone walking on eggshells. It felt like we were all sneaking something past our parents. Surely some prosecutors don't like the statutory give without any get but there wasn't remotely the sort of weeping and gnashing of teeth we heard later in the hearing over extending the Fourth Amendment to cell phone location. Can a one-sided discovery bill get through the Legislature? The reason it hasn't worked in the past is that prosecutors vowed to kill discovery legislation if it weren't "reciprocal." So they'd have to stand aside, as they did in the House on Tuesday night, or just lose their mojo for the bill to pass. I don't think the latter has happened quite yet so one suspects all they have to say on the subject, for now, is being said behind the scenes. How much of a game changer were the Michael Morton and Anthony Graves cases regarding prosecutorial misconduct? Have those episodes sufficiently altered the terms of debate on open files that a one-sided requirement can pass? Over the next month or two, we're about to find out.

Another notable dog that didn't bark in the House Criminal Jurisprudence meeting Tuesday night: Rep. Senfronia Thompson brought a pair of bills, previewed here, to reduce penalties for low-level drug possession from a state jail felony to a Class A misdemeanor and to disallow state jail felony charges for possessing trace amounts weighing less than 2 one-hundredths of a gram. One might have expected a protracted battle over these bills just a few sessions ago, but on Tuesday there was no significant opposition. Indeed, Rep. Lon Burnam asked Thompson if she'd like to send the bill to the local and consent calendar since it seemed to face no opposition, a wry suggestion since she chairs the Local and Consent committee. She replied smoothly that she thought the general calendar would be appropriate. Don't get me wrong: I was grateful. Waiting on a later bill, the last thing I wanted was for someone to launch a lengthy debate over the merits of the drug war. But I was pleasantly surprised to find the committee considered the idea relatively noncontroversial. The main concern from the dais appeared to be potential costs to county jails as opposed to "sending the wrong message," etc.. Surprisingly, given how many jobs it creates, the drug war found no champions on Tuesday.- at least none willing to stay into the evening when the bills were finally heard.

Bills would bolster Great Writ for the 21st century, expose prosecutor misconduct

The Texas Senate Criminal Justice Committee yesterday tackled a full plate of issues. I was there on behalf of the Innocence Project of Texas to support two bills, both by Chairman John Whitmire. The first up of the two, SB 825, would preclude the state bar from issuing secret, "private" reprimands when grievances are sustained against prosecutors for withholding exculpatory evidence and changed the statute of limitations  for filing such grievances so it doesn't begin to run until the concealed evidence was discovered. Exoneree Michael Morton was the star witness, exhibiting remarkable grace and class. Chuck Lindell at the Austin Statesman has more detailed coverage as does Brandi Grissom at the Texas Tribune, so go read their stories. (And for those interested, see prior, related Grits posts and earlier coverage from Lindell and Grissom.) Go here to watch video of the testimony, which began at the 30:45 mark.

Less well covered in the press, though mentioned in passing at the end of this SA Express-News article, was Chairman Whitmire's SB 344 reforming the state's habeas corpus statute, a bill which Maurice Chammah at the Texas Tribune skillfully explicated in a story last month. That bill, which was a recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions, would clarify the legal standard by which habeas relief may be granted for defendants convicted based on forensic testimony that was flawed or later debunked. This issue has important implications for innocence cases in an era where several longstanding forensic disciplines - from arson science to shaken baby cases to Deputy Keith Pikett's dog-scent lineups - have been undermined or discredited by modern science.

Testimony included a discussion by my Innocence Project of Texas colleague Nick Vilbas who is conducting the joint review of arson cases with the State Fire Marshal as per a recommendation from the Texas Forensic Science Commission. IPOT sent questionnaires to around 1,000 inmates in TDCJ convicted of arson, with responses coming from fewer than 200 of them. Of those, about 35 merited further review and only a handful of cases have surfaced - in the single digits - where defendants claimed innocence from the get-go and were convicted based solely on erroneous and since-debunked testimony from arson investigators. (In many others, confessions, witnesses, or other evidence supported the validity of the convictions.) I thought it was especially important for senators to hear Nick's testimony because it shows this legislation won't open any "floodgates." Innocence cases are the exception, not the norm, but this bill allows for correcting mistakes when the unthinkable does occur.

I was delighted that both appellate specialist Brian Wice and former District Attorney Mike McDougal came in from Montgomery County to testify for the bill and it was good to meet both of them. They were the lawyers handling the writ in Ex Parte Robbins, a pivotal case where a medical examiner's erroneous testimony provided the "sole bases" for Robbins' conviction but the Court of Criminal Appeals denied habeas relief. (See earlier Grits coverage.)

Wice testified that since the Magna Carta the "Great Writ" has been the "final fail safe mechanism" to rectify "the wrongful conviction of people like Michael Morton and Anthony Graves" Such travesties of justice, he said, typically stem from the "unholy trinity" of "rogue prosecutors, inept defense attorneys," and  often, supposed experts "who are anything but." Expert witnesses, he said, have a "special aura of believability, a mantle of credibility" beyond that of others providing testimony in court. Sometimes though, he said, alluding to an old saw from Mark Twain, "an expert's just a guy from out of town." He said the bill would allow for "greater reliability and quality control" to rectify wrongful convictions.

McDougal, who was the prosecutor in the Robbins case, spoke briefly, posing this question to the senators: If you were on a jury and heard a doctor testify that the defendant had caused the death of a child, then five years later read in the newspaper that the doctor changed his mind and now believed the child's death was not a result of the defendant's actions, "How would you feel?" That's what happened to him as DA in the Neal Robbins case, he said, which is why he agreed with Mr. Wice's habeas writ on behalf of Robbins asking for a new trial. He said the district judge in the case did a good job on the fact finding for the writ and along with the DA recommended Mr. Robbins receive habeas relief, but the Court of Criminal Appeals would not agree. "That's not right," he said emphatically.

Innocence Project of Texas President Gary Udashen, a prominent appellate lawyer from Dallas,  said there "seems to be a growing consensus at the Court of Criminal Appeals that new scientific evidence should be a basis for a new trial if it undermines the validity of a conviction, but there's not a consensus as to the legal standard" by which such cases should be judged. This bill, he said, would allow the court to quit haggling over the standard for adjudicating these questions and focus on the underlying merits.

Sen. Whitmire rightly pointed out that, while the Senate has approved similar legislation before, the barriers to passage have historically come in the House. Two sessions ago the bill passed the Senate, cleared the House Criminal Jurisprudence and Calendars Committees, but died while waiting on the House floor calendar while Democrats engaged in a days-long bout of "chubbing" (sort of the House's version of a group fillibuster) over Voter ID, killing this and hundreds of other bills. Last session, opposition from the Harris County District Attorney delayed the legislation long enough to kill it. Whitmire chided prosecutors over that fact, telling Shannon Edmonds of the prosecutors' association, "if y'all would leave it alone in the House it would become law," drawing laughter from the crowd.

Having said that, especially after recent press accounts of the Harris DA blasting the Innocence Project, I'd be remiss if I didn't point out that, unlike in prior sessions, the Harris County District Attorney's office was quite open to working with IPOT and Chairman Whitmire's staff on the bill. In fact, IMO their suggestions - which were added as amendments in committee - actually improved the legislation, or as Chairman Whitmire put it, "made a good bill better." Shannon Edmonds told the committee the amendments relieved any "heartburn" prosecutors may have had. Sen. Joan Huffman, who'd echoed the initial concerns of the Harris DA and championed their amendments, said the result was "a bill I'm very comfortable with and that's very good for the process." I couldn't agree more.

Go here to watch video of the habeas bill testimony, which began at the 1:16:55 mark.

Both bills were voted out of committee yesterday. The Morton legislation was slated for the local and consent calendar, while rookie Sen. Charles Schwertner's lone "nay" vote means the habeas bill will need to be brought up on the Senate floor, which theoretically could happen as early as next week.

Why is the Legislature taking up prosecutor accountability? Two theories

Grits had mentioned the other day that, on Tuesday, the Senate Criminal Justice Committee will take up Chairman John Whitmire's SB 825 making sustained grievances related to prosecutorial misconduct public records and extending the statute of limitations for State Bar sanctions when prosecutors hide exculpatory evidence. Lisa Falkenberg at the Houston Chronicle last week ("Prosecutors need to be accountable for their actions," March 6) previewed the "we're the victim" mentality that will surely be on display by prosecutors when that bill comes up, offering the obvious rebuttal:

In an ethics training video leaked recently by someone at the Harris County District Attorney's Office, the trainer, Rob Kepple, seems genuinely puzzled at one point by the question of why the topic of prosecutor accountability is such a big deal these days.

"I got a theory," Kepple, executive director of the Texas District and County Attorneys Association, tells a room full of Harris County prosecutors. "I think it's because we're pretty much done with the DNA exonerations. … We've tested just about everything we can. Now you've got a whole big exoneration machine that doesn't have anyone to chew on anymore."

So, he concludes, it only makes sense to go after prosecutors. We - presumably the media, the public, the lawmakers and the Innocence Project - need something else to chew on.

I take a different view. I think prosecutor accountability is a big issue because former Williamson County prosecutor Ken Anderson - who sent Michael Morton to prison for a quarter century for a murder he didn't commit - is still sitting on a bench, wearing a judge's robe, hearing cases.

It's a big issue because the former district attorney, John Bradley - who fought the DNA testing that finally exonerated Morton - is still giving talks and applying for state jobs. Kepple is still defending him for having done nothing illegal or unethical.

It's a big issue because the former Burleson County prosecutor, Charles Sebesta - who sent Anthony Graves to prison for 18 years, 12 on death row, for murders he didn't commit - is still training officers through the Sheriffs' Association of Texas, and taking out full-page newspaper ads maintaining he did nothing wrong.

To which theory do you subscribe?

Kepple touts a self-serving analysis by TDCAA claiming prosecutorial misconduct is extremely rare, but a Texas Tribune investigation last year into the causes of false convictions among Texas exoneration cases found prosecutor error - most frequently Brady violations (17 out of 21 cases) - played a role in nearly a quarter of them. If Sen. Whitmire's legislation passes, at least the public will have a better idea if the state bar can or will address the matter. That would be a small but important step toward restoring public confidence.

MORE: See coverage of the bill hearing from the Texas Tribune.

Whitmire: End secret state bar sanctions for withholding exculpatory evidence

State Senate Criminal Justice Committee Chairman John Whitmire filed legislation yesterday - SB 825 - that would disallow the state bar from issuing private reprimands to prosecutors who withhold exculpatory evidence from the defense. It would also cause the statute of limitations for state bar grievances alleging Brady violations (withholding exculpatory evidence) in exoneration cases to begin tolling when an exoneree leaves prison. At the Texas Tribune, Brandi Grissom quoted the head of the prosecutors' association saying DA's would likely not oppose the bill:

Polk County district attorney Lee Hon, president of the Texas District and County Attorneys Association, said most prosecutors would likely not oppose Whitmire's bill.

"Texas prosecutors are willing to discuss adjustments to the bar grievance statute of limitations where Brady violations are implicated," Hon wrote in an email. "We understand that given the nature of the non-disclosure, discovery of a Brady violation might sometimes be hard to find. At the same time, the reason that you have statutes of limitations for both criminal offenses and civil causes of action is that there comes a point in time when the ability of the person accused of the violation to defend the claim becomes significantly compromised due to the passage of time."

Chuck Lindell at the Austin Statesman noted that the bill in particular would clarify the state bar's authority to pursue its grievance against Williamson County District Judge Ken Anderson, who was the lead prosecutor in the Michael Morton case:

A state bar disciplinary committee, acting on its own initiative after news reports of Morton’s exoneration, filed a lawsuit last October accusing Anderson of violating his duty as a prosecutor by withholding evidence that could have supported Morton’s contention that an unknown intruder killed his wife.

If the accusations are upheld after a future civil trial, Anderson could be reprimanded, disbarred or temporarily lose his law license.

Anderson’s lawyers have challenged the lawsuit on several grounds, including a claim that the statute of limitations bars filing a grievance tied to the now-murky events of a quarter-century ago.

The state bar’s lawsuit is separate from a court of inquiry that convened earlier this month to examine allegations that Anderson violated state law in his handling of the Morton case. A decision in that proceeding is not expected until April at the earliest.

Morton called Whitmire’s legislation an important step in ensuring justice.

“As long as somebody is in prison as a result of fraudulent or illegal activity from an overzealous prosecutor, they shouldn’t have their ability to have their day in court taken from them,” Morton said in a statement released by the senator’s office.

Chairman Whitmire's legislation is a big improvement over current law, particularly the part eliminating secret, "private" reprimands for Brady violations by prosecutors.

On the question of when the four-year statute of limitations begins tolling, the bill would impact cases like Michael Morton's or Anthony Graves' where the defendant is finally exonerated, but that's just a small subset of Brady violations. After all, exonerations are much more rare than false convictions. The majority of Texas' exonerations have stemmed from post-conviction DNA testing. But biological evidence only exists in 10% or so of violent crimes and in many older cases it was long ago destroyed. Exonerees like Morton who actually win their freedom represent just a fraction of false convictions, but the act of prosecutors withholding exculpatory evidence should be punished whenever it arises.

Grits would prefer the statute of limitations on Brady grievances began tolling for all cases at the time the defense learns of the withheld, exculpatory evidence, whether the person is exonerated or not. But there are enough cases of Brady violations involving exonerees that the bill would still be a significant first step toward accountability and transparency.

MORE: See an editorial endorsing the bill from the Austin Statesman.

Anthony Graves: 'Solitary confinement dehumanizes us all,' creates 'culture of madness'

According to the New York Times, Texas exoneree Anthony Graves gave the most compelling testimony last week at a Congressional hearing on solitary confinement. The article opened:

Solitary confinement “is inhumane and by its design it is driving men insane,” a former inmate who spent 18 years in prison in Texas, a decade of that time in isolation on death row before being exonerated, told a Senate panel in a hearing on Tuesday.

“I lived behind a steel door that had two small slits in it, the space replaced with iron and wire, which was dirty and filthy,” said Anthony Graves, whose conviction for involvement in multiple murders was overturned in 2006. “I had no television, no telephone and most importantly, I had no physical contact with another human being.”

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

See a related Times editorial which praises Graves' "moving" testimony. For more, see Anthony Graves and Jim Ridgeway, who runs the blog Solitary Watch, interviewed about solitary confinement on Democracy Now:


See Graves' written statement to the committee, LA Times' coverage of the hearing, and a good summary of the event from The Dissenter. The Pittsburgh Post Gazette editorialized after the hearing that "It's time to view solitary confinement as torture."

48 Hours Mystery to feature Anthony Graves' story

Via the Texas Tribune, we learn that CBS News' 48 Hours Mystery will feature a segment on Anthony Graves' false conviction tonight. See the full story.

What can the Texas Legislature do to reduce prosecutorial misconduct?

In the wake of Michael Morton's recent DNA exoneration in Williamson County - in which prosecutors withheld exculpatory evidence for more than two decades before DNA proved another man committed the murder for which he was convicted - prominent state leaders are now asking what exactly could be done at the Texas Legislature to reduce prosecutorial misconduct. According to the head of the Texas District and County Attorneys Association, Rob Kepple, however, the problem can't be fixed with new laws. He told the Texas Tribune that:

a new discovery law would not have prevented the kind of misconduct alleged in the Morton case. If a prosecutor or investigator decides to withhold key information even in the face of the Brady rules that already require its release, he said, a new state law will not spur their compliance.

“If somebody didn’t play fair back then,” he said, “I’m not sure exactly what law we change today to address it.”

I wish Mr. Kepple had revealed his view that new laws won't fix ethical lapses many years ago. If he had, maybe Texas wouldn't now have more than 2,400 felonies on the books, including most recently a new 3rd degree felony for misrepresenting the size of a fish. But let's set aside for now Kepple's new-found and likely short-lived skepticism that changes in criminal law are capable of altering undesirable behavior. On the assumption that the Legislature is not completely impotent to address the problem, what steps might be taken to reduce prosecutorial misconduct?

In this writer's view, the best, simplest fix would be to to eliminate "absolute immunity" for prosecutors. While Texas legislators can't overrule federal court decisions ("absolute immunity" exists in no statute but is a judicial creation from the US Supreme Court), the Lege would have to create it's own version of the federal civil rights statute (USC 42, Sec. 1983) to allow civil suits in state court against prosecutors engaged in misconduct. State Rep. Lon Burnam filed a bill last session which would do just that in reaction to the Anthony Graves case. (See Grits' coverage of the legislation.)

There was a committee substitute offered on that bill that would have given prosecutors "qualified immunity," which is the same as for police officers, instead of eliminating immunity entirely. Personally I'd prefer no immunity - the same standard under which defense attorneys operate. Cops' get qualified immunity - which still protects them from virtually all civil liability - because they make split-second decisions later second guessed in court. But for intentional misconduct, in rare instances, they can still be held liable. By comparison, prosecutors have all the time in the world to make decisions, or correct them. Ironically, this suggestion could be seen as a slap in the face to the Obama Administration, which has adamantly argued that prosecutors shouldn't be held liable in civil court even for egregious, intentional misconduct and that there is no "free-standing due process right not to be framed."

One of the boldest ideas I've seen came from Dallas DA Craig Watkins, who at one point proposed criminal liability for Brady violations by prosecutors. That would certainly turn around the incentives for win-at-all-costs prosecutors who currently have little disincentive beyond their own, personal integrity to avoid cheating to win.

Yet another possible solution I'm gravitating towards: The problem with, say, prosecutor-turned District Judge Ken Anderson in the Morton Case is that the statute of limitations on grievances against lawyers is only four years, so no matter how bad his misconduct the State Bar can't touch him. Grits would like to see the statute of limitations on Brady violations begin to toll when the concealed information is discovered, not at the time of misconduct as is currently the case. Indeed, when Craig Watkins suggested criminal sanctions for prosecutors withholding evidence, ironically that's the fix Williamson County DA John Bradley preferred! The Dallas Morning News reported (no longer online) that while Bradley considered criminalizing Brady violations "ridiculous," he did not argue against "changing state bar rules to allow grievances to be filed when they are discovered rather than within four years of the alleged misconduct, as currently required. There is no recourse when Brady violations are discovered decades later," reported the News.

That makes loads of sense to me. The whole problem with "Brady" violations - i.e,. prosecutors withholding exculpatory evidence - is that if they conceal the evidence, nobody knows to file a grievance against them. In the Morton case, the statute of limitations on Judge Anderson's alleged misconduct should begin tolling from 2008 when the hidden, exculpatory evidence was discovered, not from 25 years ago when the apparent conspiracy to conceal that information began. Ditto for John Bradley who, as the Trib mentioned, "resisted efforts by Morton’s lawyers to use public-information laws to gain access to evidence in the original prosecutors’ files."

Another rather minimalist but potentially powerful idea: make courts actually name prosecutors responsible for Brady violations or other misconduct in their rulings. Right now when courts find Brady violations, court orders do not name the lawyer who withheld the evidence so it's impossible without monumental research efforts to figure out who was responsible. To get an idea of what's required to uncover prosecutorial misconduct, see the methodology from this one of a kind report (pdf) from California by the Veritas Initiative in California on prosecutorial misconduct to see how difficult it is right now to even gather that information. (They found that out of 707 cases where courts found misconduct, only 6 prosecutors were disciplined by the state bar, which is 5 more than we've seen in Texas over the same period.) California's court information structures and ours are similar on this score, and the exact same method would be required to identify Brady-violating prosecutors here.

A report by the Justice Project ("Improving Prosecutorial Accountability: A Policy Review," no longer online), suggested these reforms:

States should require that prosecutors’ offices adopt and enforce clearly defined policies on the appropriate use of prosecutorial discretion.

States should adopt open-file discovery in criminal cases, increasing the transparency of the criminal justice system and reducing the risk that prosecutors will withhold evidence from the defense.

States should effectively respond to misconduct by establishing prosecutor review boards with the power to investigate and sanction prosecutors.

States should require that all prosecutors participate in training and continuing legal education.

Of suggestions from the Justice Project, Grits views mandating an "open file policy" as a major, positive step, but the others strike me as feel-good approaches that wouldn't do much in practice. Prosecutors in Texas have fought legislation to mandate an open-file policy tooth and nail, arguing that they'll only agree to it if defense attorneys are required to open up their files as well. (The difference, of course, is that defendants have a 5th Amendment right against self-incrimination, while prosecutors are required to seek justice, not convictions.)

Finally, perhaps as or more important than any of the above reforms would be simply to re-invigorate Texas' open-records statute so non-lawyers can access more law-enforcement information without going to court. In the Morton case, exculpatory evidence was found via the Public Information Act in 2008 instead of through discovery, and that's how a lot of Brady violations are discovered, often years after the fact.

Twenty years ago, Texas had the first or second strongest open records law in the country on police records, but first the Texas Supreme Court then the Lege completely gutted access to law-enforcement records under the Public Information Act in 1996-1997. In recent years state Rep. Harold Dutton has been carrying a terrific bill to change the law back to the Jim Mattox-era Attorney General interpretations that the Lege and courts overturned in the '90s. As a practical matter, that might be the best way to expose prosecutors withholding exculpatory evidence, essentially crowd sourcing the task to interested parties around the state who file thousands of open records requests with law enforcement and DAs offices each year. That won't hold prosecutors accountable, per se, at least in the sense of punishing them, but it's probably the best way to ensure more exculpatory evidence is eventually found. Now that access to such records in Texas has been gutted like a fish, Florida's statute is probably the best-in-the-nation example of what open-records law should look like for law-enforcement in a free and open society.

That's pretty much the array of reform ideas I've come across, but Grits welcomes reader suggestions for other approaches that might get at the problem from creative or unexpected angles. There's more than one way to skin this particular cat and only now - thanks in large part to the Anthony Graves and Michael Morton cases - are policymakers in Texas beginning to seriously discuss exactly how the Legislature might go about reining in over-ambitious prosecutors who are willing to cheat to win.

RELATED: State Bar should sanction prosecutor from Michael Morton case but almost certainly won't.

Earning it the hard way

The Texas Comptroller approved compensation to Anthony Graves for his false conviction under provisions in the new HB 417 just passed by the 82nd Texas Legislature. Congrats to Anthony and to everybody who helped him seek compensation. Just like exonerees freed on habeas writs, he'll receive $80K per year incarerated in a lump sum (around $1.4 million) and a like amount spread out over a lifetime annuity. Eighteen years incarcerated for a crime he didn't commit; 12 of them on death row (including two execution dates set). That's earning it the hard way!

News flash: New York Times gets it wrong on exoneree compensation bill

For me, the big innocence news at the capitol today was that the eyewitness ID legislation (HB 215) got a hearing in the Senate Criminal Justice Committee while SB 122 expanding access to postconviction DNA testing got a hearing in Criminal Jurisprudence on the House side, giving both those bills good chances for passage.

What most folks wanted to talk about though was my opinion of a dramatically spun New York Times article about a fee dispute between two exonerees and attorneys who represented them in civil litigation, most prominently West Texas trial lawyer Kevin Glasheen and  Jeff Blackburn at the Innocence Project of Texas, a group for whom I'm lobbying this session. I've written up my personal views on the merits or lack thereof of the legal case here, which differ substantially from the portrayal in the Times and haven't changed since that was written. Leaving those differences in perspective aside, I wanted to correct one bald factual error at the end of the story. John Schwartz (son of Texas liberal icon "Babe" Schwartz, I'm told), wrote that:

State Representative Rafael Anchia, who sponsored the Texas measure that increased the payments to exonerated prisoners, introduced a new bill in the Legislature’s current session that would expressly prohibit the kind of contract that Mr. Glasheen is defending and allow only a simple hourly fee for helping to file the forms. “I’m closing the door on that,” Mr. Anchia said.

Anchia's bill in fact would not "expressly prohibit the kind of contract that Mr. Glasheen is defending." That's just an inaccurate, false portrayal of the legislation as it currently stands. According to an email from one of Sen. Rodney Ellis' staff, "The legislation (as it pertains to fees) only applies to 'preparing, filing, or curing' applications for state compensation under 103.051 of the Civil Practice and Remedies Code. It is not the intent of the legislation to apply to 1983 actions or mandamus actions if the Comptroller rejects someone's application, as Anchia said on the floor of the House."

But the fees in dispute with Mr. Glasheen are precisely contracts related to Sec. 1983 federal civil rights lawsuits filed on behalf of exonerees after they'd chosen to reject the then-lower levels of compensation from the state. Despite Anchia's sometimes inexplicable statements to the media, those types of contracts will not be affected by his bill, nor should they be.

To see how banning such contracts might play out, consider the case of Anthony Graves, whose compensation was rejected by the Comptroller because his case was overturned on direct appeal instead of through an habeas corpus writ on actual innocence grounds. For him, pursuing compensation isn't as easy as filing a one page form. In the end he may need attorneys willing to spend years on civil rights litigation suing Burleson County on his behalf. If somewhere in the middle of all that, we get a new Governor who pardons Graves and he applies for compensation, should his attorneys not be paid?

The problem here is that if attorneys can't take a contingency fee on such cases, if they can only charge an hourly rate, then they can only afford to take clients who can afford to pay them by the hour. Poor people - like, say, somebody who spent the last two decades in prison based on a false accusation - couldn't get representation in the tough cases. Lawyers work for fees and I didn't invent the system of civil justice, nor did Glasheen or Blackburn. That's just how it works, and in context, having been in the thick of things at the time, IMO the attorneys in the case deceived no one and did nothing wrong.

Eliminate 'judge-made' immunity for prosecutor misconduct

On Monday, the Texas House Judiciary and Civil Jurisprudence Committee heard CSHB 2641 by Rep. Lon Burnam which would establish liability for prosecutors in cases involving extreme misconduct, giving them "qualified immunity" (the same as police officers) instead of the "absolute immunity" they enjoy now in performance of their prosecutorial functions.

Though late in the session, the hearing was well-timed since retired Supreme Court Justice John Paul Stevens that very evening gave a speech (pdf) on the same topic, according to the Wall Street Journal Law Blog, arguing for elimination of the "federal judge-made rule" granting prosecutors "absolute immunity." Stevens declared that "this judge-made rule misconstrued the intent of the Congress that enacted section 1983 and is based on a misunderstanding of relevant history." He even quoted an opinion from Judge Richard Posner who concluded that the rule is "based on what scholars agree are historical misunderstandings (which are not uncommon when judges play historian)." Notably, though he was actually a Republican appointee, Stevens was widely considered a "liberal" jurist on the Supreme Court, while Posner enjoys the reputation of an arch-conservative. Both, though, agree this "judge-made rule" has no basis in either history or statute.

Stevens also cited an upcoming paper in the Texas Journal on Civil Liberties and Civil Rights, "Congress Needs to Repair the Court’s Damage to § 1983," by Ivan Bodensteiner, who identified "seven major areas—individual immunity, governmental entity immunity, supervisory liability, color of law, limitations on punitive damages, enforcement of statutory rights, and preclusion—in which the Court‘s interpretation of §1983 has narrowed ... [in ways that] are not supported by either the language of §1983 or public policy considerations." Bodensteiner argues for Congress to amend Section 1983 to eliminate both absolute and qualified immunity in most instances, suggesting specific statutory revisions to that effect.

Which is where Rep. Burnam's bill comes in, providing a state-level remedy to federal judicial activism. Since it's unlikely Congress will anytime soon take up this cause, CSHB 2641 creates a new Sec. 1983-style civil rights statute for Texas that limits immunity for prosecutors. His legislation wouldn't go so far as to abolish all immunity, making his proposal seem moderate by Stevens and Bodensteiner's standards, but would limit prosecutors to "qualified immunity," which is the same as that presently enjoyed by police officers.

At the hearing Monday, a bevy of prosecutors put in cards to indicate opposition, though none of them wanted to stand up and tell the committee in oral testimony why they deserve more protection than cops when doing their jobs. (See the video of the hearing here, beginning at the 25:00 mark.) I testified on behalf of the Innocence Project of Texas and a rep from the Texas Defender Service discussed the need for the change in the context of the Anthony Graves case, where extreme prosecutorial misconduct caused the federal 5th Circuit to overturn Graves' death sentence. Though it's late for the bill to make it through regular channels, it's still possible it could be tacked onto other legislation as an amendment.

Whether or not the Texas Lege addresses the subject in the 82nd session, it's clear the issue isn't going away as long as some prosecutors cheat to win. And between Rep. Burnam's legislation and Justice Stevens' speech on Monday, it seems like a lot more folks are considering legislative solutions to this judge-created problem than at any time in recent memory.

See related Grits posts:

• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?

Roundup: The 'Duty to Correct' and other stories

Here are a few stories I noticed over the weekend that deserve Grits readers' attention:

Prison workers fired for relations with inmates
Three firings but no prosecutions stemming from alleged inappropriate relationships between prison workers and Texas sex offenders. "Two of the workers were actually counselors in the Sex Offender Treatment Program at the Goree Unit prison when fellow workers reported the deeper relationships with their patients." Further, "the prison system's Inspector General, questioned why his office was not notified on at least two of the Goree SOTP employee cases."

Prison gangs as cartel subcontractors
Like Barrio Azteca, Texas Syndicate gang members now "work as subcontractors for Mexican cartels," according to this Houston Chronicle story.

'Why won't Charles Sebesta just go away?'
Murray Newman asks "Why won't Charles Sebesta just go away?," while Sebesta continues to tell the Brenham Banner Press that it's his accusers who are "misleading and dishonest." Newman says, Sebesta "can try to blame the 48 Hours program all he wants for giving a slanted view of his actions, but he has a much harder sell in trying to explain why the 5th Circuit Court of Appeals had a similar view. They aren’t exactly known for their crazy liberal rulings."

Lazy journalism and the sex offender registry
I'm increasingly convinced that lazy journalists are the primary constituency for the bloated sex offender registration list, allowing stories like this one from the Killeen Daily Herald that try to make news out of nothing. The article begins by announcing that "Five registered sex offenders are living within one mile of the main entrance of Nolanville's only city park." None of them are violating residency restrictions or live closer to the park than allowed by law, but somehow this is "news"? Pathetic.

A 'duty to correct' flawed forensic methods?
Is there a "duty to correct" when long-used forensic analyses like older arson investigation techniques are debunked as junk science? That's the subject of a thoughtful article from the Fort Worth Star-Telegram exploring the issue. It's also concern arising from the recent reprimand of a forensic psychologist whose testimony on mental impairments "used flawed techniques that artificially inflated disability scores, making defendants eligible for the death penalty."

Dallas exoneree seeks to help others falsely convicted
The SMU student paper has a nice feature on Christopher Scott, a Dallas man exonerated in 2010, a dozen years after being convicted of capital murder. "He has since devoted his time to reaching out to other wrong convicted individuals and aiding other recent exonerees. Scott founded The House of Renewed Hope, an organization that aims to support and encourage newly released exonerees to assimilate them back into society."

State won't compensate Anthony Graves for innocence; instead garnishes his paycheck

Anthony Graves seemingly can't win for losing. Exonerated and freed 18 years after his capital murder conviction, the state Comptroller first refused him compensation and now the AG is garnishing his wages based on a child support order issued years after he'd been sent to death row. An editorial in the Houston Chronicle hit the nail on the head:

As the Chronicle's Harvey Rice reports, the Texas Attorney General's Office also is garnisheeing $175 a month from the former inmate's salary as a legal investigator for nearly $5,500 the state claims he owes in back child support while he was behind bars.

The state also seized a $250 honorarium that Graves was to be paid for a presentation to political science students at Prairie View A&M University about his prison ordeal.

"The state of Texas tried to kill me for something I didn't do, and now they are trying to get child support out of me," Graves told Rice. "I feel powerless."

According to a spokesperson for Attorney General Greg Abbott, because a judge ordered then-prisoner Graves to pay the child support in 2002, the AG's office has a legal obligation to collect the money. He did express sympathy for Graves, adding, "his experience is truly troubling and deeply compelling."

Obviously not troubling or compelling enough for the governor, the comptroller and the attorney general to get their heads together and try to cut through the bureaucratic red tape and remedy the continuing effects of a truly horrible miscarriage of justice.

The state took away Graves' freedom for much of his adult life, dismissed on a technicality the compensation owed him by law, and now bills him for the consequences of his wrongful imprisonment. It's a truly sickening situation.

Where there's a will to right an injustice, the most powerful officials in the state must find a way. If they had real sympathy for what this man has suffered, they'd promptly set things right.

If Graves hadn't been falsely convicted, of course, he'd have been around to support his children in the first place! For that matter, if he were compensated for what happened to him, there's little doubt he'd have no trouble satisfying this obligation. But coupled with the Comptroller's denial of compensation, this scenario tacks on further insult to already-incalculable injury.

MORE: From Lisa Falkenberg at the Chronicle.

'Grave Injustice'

The TV show 48-Hours Mystery on CBS last night ran an hour-long feature on Anthony Graves' dramatic exoneration after an heartbreaking false conviction for capital murder. Here's the text version of the story.

Charles Sebesta's career as a police trainer

Working off a lead she garnered from the comments of a Grits post, she informs me via email, Houston Chronicle columnist Lisa Falkenberg offers up a terrific piece of reporting on Charles Sebesta, the District Attorney accused of prosecutorial misconduct by the US 5th Circuit and a special prosecutor, Kelly Siegler, in Anthony Graves' wrongful capital murder conviction. Falkenberg hones in on Sebesta's post-prosecutorial career as a trainer for sheriffs' departments, discovering that he misrepresented his credentials on his website:

the disgraced former Burleson County district attorney has been traveling the state, and the nation, he says, advising law enforcement organizations and teaching courses to peace officers.

The negative publicity over a case that even Gov. Rick Perry has called a "great miscarriage of justice" hasn't cost Sebesta a single client, he claims: "I've got as much as I can do."

Kelly Siegler, the special prosecutor in the case who has accused Sebesta of, among other things, manipulating witnesses, fabricating evidence and misrepresenting facts to the jury in the Graves case, called his current teaching role "disgusting."

"The last person you want telling your guys what to do at 3 o'clock in the morning is Charles Sebesta," Siegler said.

Not only is Sebesta teaching, but he's been passing himself off as a state-certified instructor and the staff "training coordinator" for the Sheriff's Association of Texas. The title appears on Sebesta's online bio, and, before I began asking questions, on the association's website. Sebesta told me this week he's the coordinator who "signs the papers."

When I called the sheriff's association, Executive Director Steve Westbrook said Sebesta was not the coordinator and wasn't even on staff. Westbrook said Sebesta was just a contractor who, for a decade or so, has taught two, maybe three courses a month across the state.

"He may call himself the training coordinator, but he's not," Westbrook said. "I don't know if Charles gave himself that title. Maybe it sounded better."

Ouch! There's a "gotcha" moment, beefing up his resume with a phony job title! Even worse (or better, for those indulging in schadenfreude), it turns out he's not even certified as an instructor by the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE). He insists it's a recordkeeping error, but neither TCLEOSE nor him can produce any documentation. Wrote Falkenberg:

When I called the commission, the director of education and credentialing, Kim Vickers, maintained it wasn't his job to raise concerns. It's the responsibility of each organization's training coordinator to hire qualified instructors, he said. 

Vickers also disputed that Sebesta is the coordinator, saying he knows the real one and it ain't Sebesta. He added that, like most instructors, a training coordinator is required to be certified.

Sebesta maintains that he is certified, and at least one county that hired him believed he was. It's not hard to get a certificate: you just have to pay $25 and pass a 40-hour course.

But state records show Sebesta has no such certification.

Double Ouch! A professional fraud! And this is the guy who's attacking Anthony Graves', Kelly Siegler, and Pam Colloff's integrity! Falkenberg concludes with such a strong statement I cannot improve upon it:

It's not surprising that Sebesta's story doesn't mesh with the others. He seems to have always had trouble with the facts. When the evidence against Graves wasn't there, he apparently made it up.

When he was told over and over again by different parties that Graves was innocent, he continued not only to prosecute but to seek death.

Sebesta has no business instructing anybody on the law. Even a class on civil process would require him to give guidance on good judgment and ethical standards, two things Sebesta doesn't seem to know the meaning of.

There may be only one course Charles Sebesta is truly qualified to teach: How to steal 18 years of an innocent man's life and get away with it.

If a fiction writer created a shameless sleazebag District Attorney like Sebesta as a character in a novel, it would be viewed by critics as over-the-top caricature. He and Mike Nifong ought to start a club.

See related coverage:

• Who wants to help Anthony Graves get compensation?
• Can Governor Rick Perry Pardon Anthony Graves?
• Bittersweet exoneration stories
• Texas Monthly vs. Charles Sebesta
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• The Anatomy of a Frame-Up: More on Anthony Graves
• Governor: Graves case shows system works (just not Texas')
• Flurry of media surrounding Anthony Graves exoneration
• Anthony Graves: Innocent and free 16 years after unfounded death sentence
• Progress and its Discontents - or, What I learned from an article in Texas Monthly (guest post by Jeff Blackburn)

Who wants to help Anthony Graves get compensation?

Lisa Falkenberg at the Houston Chronicle wonders why Comptroller Susan Combs won't give compensation to Anthony Graves, noting that, "Texas' compensation law seems tailor-made for a guy like Graves, who was finally freed after nearly two decades behind bars including 12 years on death row, when it became clear he was innocent in the savage Somerville murders of a grandmother and five children." Falkenberg writes:

At first, I was hesitant to jump on the bandwagon of those attacking Combs' decision. She is not an attorney or a detective. If the paperwork doesn't say "innocent," it's not her job to go out and conduct her own investigation. And broadly interpreting the statute could open the floodgates for baseless compensation claims.

But, it turns out the comptroller's office has been widely inconsistent through the years in the way it has applied the versions of the compensation law, resulting in payments to some people whose cases were far less clear-cut or worthy of compensation than Graves'.

Then-Comptroller Carole Keeton Strayhorn agreed several years ago to compensate 19 out of 21 of the folks who were caught up in the infamous 1999 Tulia drug bust, even though they'd received only general pardons, not pardons based on innocence, according to their Plainview attorney, Brent Hamilton.

The group included one person who served concurrent prison sentences when his probation was revoked on an unrelated drug charge. Strayhorn went so far as to seek an opinion from Texas Attorney General Greg Abbott in 2007 on whether the man qualified for compensation. The AG said he did.

"You could have knocked me over with a feather when I heard some of those folks got paid," said Amarillo attorney Jeff Blackburn, chief counsel for Innocence Project of Texas who handled some of the Tulia cases, in which convictions were tainted by prosecutorial misconduct and the perjured testimony of a rogue undercover investigator.

Earlier, Falkenberg suggested that the reason the local judge isn't willing to overtly declare Graves "innocent" to make him eligible for compensation is that her father was the presiding judge at Graves' original trial, as well as a former law partner of Charles Sebesta, the District Attorney who tried the case.

From where I stand, this doesn't seem to be a matter of law, but of "want to." The judge in the case could do it, but that'd make Daddy look bad so she doesn't want to. Falkenberg's probably right that the Comptroller could bestow compensation if she chose to do so, but she doesn't want to, either. And my personal view is that Governor Perry has all the authority he needs to grant Graves a pardon. Over at Pardon Power, historian P.S. Ruckman wrote that Governor Perry's self-imposed bar from pardoning Graves "seems to defy all reasonable interpretation of the clear meaning of the State's Constitution - as well as common sense and basic standards of fairness and decency."

When politicians say they want to help, their sincerity can best be measured by their actions, not the earnestness of their declarations. Time will tell who, if anybody, among these various officials, who all could help Mr. Graves, really wants to do so.

See related coverage:

• Can Governor Rick Perry Pardon Anthony Graves?
• Bittersweet exoneration stories
• Texas Monthly vs. Charles Sebesta
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• The Anatomy of a Frame-Up: More on Anthony Graves
• Governor: Graves case shows system works (just not Texas')
• Flurry of media surrounding Anthony Graves exoneration
• Anthony Graves: Innocent and free 16 years after unfounded death sentence
• Progress and its Discontents - or, What I learned from an article in Texas Monthly (guest post by Jeff Blackburn)