Exoneree awarded $2.3 million jury verdict over innocence evidence concealed by prosecutors

Texas Lawyer brings word (Oct. 23) of the latest example of innocence compensation, this time through a federal courtroom instead of the state's innocence compensation law:

A federal judge issued a $2.3 million final judgment on Oct. 15 in favor of Manuel Alvarez, who filed a §1983 municipal liability complaint alleging that the city of Brownsville allowed its jailers to beat him in 2005 when he was 17, and then falsely charged him with assaulting them. Alvarez alleged that the jail concealed from him and his defense lawyers a videotape of the beating.

Luis Avila of Dallas and Eddie Lucio of Brownsville represented Alvarez, who served four years in a state jail for the assault charges before the Texas Court of Criminal Appeals exonerated him in 2010 on the basis of his actual innocence, Lucio said. But Alvarez had a criminal record when the beating took place, Lucio added. That background presented an obstacle but a surmountable one at the jury trial held to decide the damages for municipal liability claim.

An attorney for they city said the will appeal, arguing "that a precedent in the U.S. Court of Appeals for the Fifth Circuit barred Alvarez from claiming a Brady violation, on which he based his complaint, because he had previously pleaded guilty. A Brady violation occurs when prosecutors fail to abide by the U.S. Supreme Court 1963 ruling in Brady v. Maryland and disclose all exculpatory evidence." The story concluded:

Both Avila and Lucio expect the Fifth Circuit, based on the questions of status of Brady rights for defendants who have pleaded guilty, to review the case.

For now, though, the two lawyers are savoring their victory for a client "who was not a model kid," as Avila said, but who also did not deserve to be beaten and then charged for assaulting a jailer while a videotape of his beating remained hidden from his lawyers.

Crime lab misconduct, sex-offender residency, parole successses, and other stories

Hope you enjoyed a Happy Independence Day, Grits readers. Here are several items that didn't make it into independent posts last week but merit your attention:

Houston crime lab misconduct not caught by internal procedures
The Houston Chronicle reported (June 25) that Peter Lentz, the Houston crime lab tech accused of lying, improper procedure and tampering with an official record, was not identified by internal protocols but because, in February, he admitted the wrongdoing to two coworkers over drinks in a bar. MORE: From Paul Kennedy.

Texas civil commitment program melting down
The state's civil commitment program for sex offenders is imploding. The state plans to begin housing sex offenders in secure lockups because a halfway-house vendor is dropping its contract, citing public stigma and inadequate compensation. An attorney at the Harris County public defender told the Houston Chronicle that housing civil-commitment offenders in secure lockups is "clearly illegal." After all, they've already served their criminal sentences and are legally supposed to be undergoing outpatient treatment. Look for significant action on this topic next session, probably led by Sen. John Whitmire and Rep. Sylvester Turner.

'Getting Life': Michael Morton Memoir
Michael Morton has just published a memoir about his false conviction and imprisonment for the murder of his wife and the dramatic events surrounding his nationally publicized exoneration. See the Statesman's coverage.

Higher parole rate, fewer revocations account for leveling of Texas' prison pop
Insiders know that, despite the attention paid to Texas' 2007 probation reforms, the parole side has been the main reason Texas' prison population has leveled off and even modestly declined in recent years. Why? Via YourHouston News, Texas parole commissioner Lynn Ruzicka said new programming has facilitated higher parole rates for eligible inmates and lower revocation rates for parolees. For example, "Out of the inmates up for parole, 27-28 percent were released in 2001 while the current release rate hovers around 35 percent ... A 2 percent increase in approvals translates into approximately 1,500 additional parole releases per year and an annual savings of almost $26 million, a 2010 report by the Center for Effective Justice showed." Ruzicka specifically said, “The release rate is going up because of the programs we have.” Further, "parole revocation rates for parolees with active cases fell from 12.2 percent in 2001 to 8.2 percent in 2010, according to the Texas Department of Criminal Justice."

A lawyerly protest: Handing out cards
You don't see this every day:

More than a dozen of the city's best criminal defense lawyers converged Friday on the 11th floor of Houston's criminal courthouse to meet defendants and hand out bright yellow 3-by-5 cards explaining their constitutional rights.

It was part of a protest by the Harris County Criminal Lawyers Association against the way Michael Fields, a misdemeanor judge, handles initial appearances in his court.

"What he's doing is unethical, it's unconstitutional and it's illegal," HCCLA president Carmen Roe said after passing out several fliers. "When he starts trampling on the rights of defendants, that's when we get involved." ...

"We believe he's coercing defendants to either waive their right to a lawyer or enter a plea of guilty without their lawyer being present," said JoAnne Musick, a past president of HCCLA who was handing out fliers. "We've had complaints from people who asked for a lawyer and instead he handed them plea papers and had them enter a plea of guilty."

The judge, who denied any improprieties, said he changed his arraignment procedure earlier this year, a move that has generated the controversy. The Republican jurist has held the bench since being elected in 1998.

Paul Kennedy has called Judge Fields a "bully in a robe." Scott Greenfield provides more suitably outraged commentary.

Are compromised Van Zandt locks in other jails?
The Tyler Morning Telegraph posed the same question Grits asked in the wake of news about inmates compromising the locks at the Van Zandt County Jail: "Are the faulty locks in the Van Zandt County Jail in other jails?" For now, claims the paper, the surprising answer appears to be "no." "Executive Director of the Texas Commission on Jail Standards Brandon Wood said that as of now, the manufacturer does not seem to have that lock model in any other Texas jails, but they are still taking more time to confirm that, and see about locks in other states."

Wood said there are about three main manufacturers that make lock systems for jails in the state, but the company that made the flawed locks was not one of them.

“The type of lock that was installed, although it is comparable according to the manufacturers specifications to locks that are typically seen in Texas county jails, this was the first time we’d seen this manufacturer in the state,” Wood said.

Wood said even though the company was new, the locks it made met state standards.

For security reasons, Ray requested not to reveal the lock manufacturer’s name. Keeping that information away from inmates could stop them from trying to manipulate similar locks.

However, the locks with the faulty pieces seem to only be in one batch of one specific model. It doesn’t look like the manufacturer has locks from that bad batch anywhere else.

“We do not believe that any of those locks are in any other county jails, however we have issued a technical assistance memorandum and notification to the sheriffs to conduct a walkthrough of their own facilities and determine if they have any of those locks,” Wood said.

As every jail in Texas investigates its own locking system, the manufacturer in question is looking into any locks it has installed in other states.

They ought to publish the manufacturer's name. It's going to eventually come out, anyway.

Alleged civil service cheats indicted in Cameron County
Reported AP, "Eleven former and potential South Texas sheriff's deputies have been indicted in a civil service exam cheating scandal involving a cellphone image of the test."

Private prison focus: Immigration
The blog Texas Prison Bidness highlights documented troubles at five "criminal alien requirement" prisons in Texas covered in an ACLU report released earlier this month:

• Reeves County Detention Center
• Eden Detention Center
• Willacy County Correctional Center
• Big Spring Correctional Center
• Giles W. Dalby Correctional Facility

Forensics a 'decades-long experiment' sans scientific method
At Slate, Mark Joseph Stern picks up the meme that much forensic science isn't actually science, an uncomfortable fact made irrefutable by the 2009 National Academy of Sciences report calling for the application of the scientific method in forensic fields. He argues that, "Far from an infallible science, forensics is a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches."

Judge: Cameron County corruption beggars belief

On New Year's Day, the Valley Morning Star published an extensive account of judicial and prosecutorial corruption in a story tiled "Judge: Hard to believe depths of Cameron County corruption." The story began:

An extensive federal investigation found corruption in the Cameron County’s legal system and judiciary to be so pervasive that most people probably wouldn’t believe it — “unless they heard it themselves,” U.S. District Judge Andrew S. Hanen said in 2013.

Hanen made his statement on Dec. 3, as he sentenced Austin attorney Marc G. Rosenthal to 20 years in jail and ordered him to make restitution of more than $13 million for bribing former 404th state District Judge Abel C. Limas.

The jury found Rosenthal paid Limas for favorable court rulings in civil cases, bribed witnesses, filed false personal injury cases, directed ex-state Rep. Jim Solis and others to pay funeral home directors and ex-Brownsville Navigation District police Chief George Gavito to refer cases. It also found he arranged to manipulate case assignments at the Cameron County District Clerk’s Office, and paid persons to pose as witnesses and to provide false statements, and testimony.

On that same day that the jury returned its verdict on Rosenthal, attorney Ray R. Marchan was supposed to report to federal prison in Fort Worth, following his June 18, 2012 conviction on six counts of racketeering, conspiracy to commit racketeering, aiding and abetting extortion and mail fraud. He was sentenced to 3.5 years in jail.

Instead, Marchan jumped to his death from the Queen Isabella Memorial Bridge.

This month, the same judge is expected to sentence former Cameron County DA Armando Villalobos as part of the same web of corruption. Judge Hanen ordered that numerous ethical violations exposed in these cases be reported to the state bar and other authorities. Here's how the article concluded:

Hanen said that the court had heard witnesses and seen exhibits that show uncharged illegal acts and violations of disciplinary rules.

“Some of this evidence was presented to the jury and some of it was not,” Hanen also said. “In fact, defense counsel requested, and this court felt duty-bound by law to give an instruction to the jury to disregard these ethical violations in reaching its verdict,” Hanen stated.

“The U.S. Attorneys and federal agents involved in the trial of this case are hereby ordered to provide the appropriate authorities at the State Bar of Texas, Chief Judge Ricardo Hinojosa of the Southern District of Texas and the Chief Judge of the Fifth Circuit or his designee a copy of this order and, if they so request, the evidence of the multiple ethical violations committed by multiple attorneys involved in this case.

“This includes the evidence not presented at trial and covers all attorneys involved, not just the defendant,” Hanen ordered.

He continued: “This court has great admiration for the trial bar and the benefits that trial lawyers (both prosecution and defense) provide to society. It is their vigilance, among others, that ensures that the system of justice works and that the rights of all Americans are protected.”

“That being said, nothing can do more harm to society than an individual, (or a group of individuals) armed with a law license (or working for someone armed with a law license) that has no moral compass, no respect for the rules governing ethical conduct and no respect for the truth. Some of the acts or omissions may be considered minor; some may have been inadvertent,” Hanen wrote.

“Nevertheless, there were some acts that were neither minor nor accidental mistakes, and the individuals that committed these acts, in this Court’s opinion, should not be allowed to practice law anywhere.”

Capital case overturned because ineffective counsel failed to challenge flawed forensics

The Court of Criminal Appeals yesterday granted a habeas writ from Manuel Velez, a capital defendant out of Brownsville whose case was the subject of an investigative report by Pam Colloff at Texas Monthly earlier this year. They found Velez's defense counsel were ineffective, improperly failing to investigate the case or to call rebuttal experts to challenge questionable scientific evidence establishing the timing of abuse to the victim, 11-month old Angel Moreno. Here's Colloff's description of the disputed evidence:

Velez’s attorneys won the right to hold an evidentiary hearing, which took place last December. During the weeklong proceeding, not one of the seven medical experts who testified supported the state’s theory of the case. The state’s own expert witness, Dr. Norma Farley—who conducted the autopsy back in 2005—backed away from much of her original trial testimony, in which she stated that all of Angel’s injuries had taken place within two weeks of his death. Some, she allowed, could be 20 to 36 days old. Two forensic pathologists and a neurological surgeon testified that Angel’s skull fractures were more than two weeks old, and perhaps months old. Forensic pathologist Dr. Janice Ophoven explained that not much trauma was needed to push Angel into a critical state on October 31, 2005, if his brain was already swollen from head trauma. A rapid increase in head circumference is evidence of “increased intracranial pressure,” she said, which made the boy “a time bomb.”

The CCA's ruling suggested that the victim's mother - who Colloff noted received a lenient plea deal in exchange for her testimony against Velez, though his lawyers did not disclose that to the jury - may have been the real culprit: "Family members and neighbors also testified at the habeas hearing that they witnessed the victim's mother neglecting and abusing him and his siblings in the months and weeks before his death. during tht time they also observed that he displayed symptoms, such as lethargy, that were consistent with head trauma."

The high court ruled that the record supported the district judge's conclusion that "there is a reasonable probability that, but for defense counsel's failure to investigate and present evidence, the outcome [of the case] would have been different." The case now heads back to the Cameron County DA who must decide whether and how to proceed.

Probation revocations down, but not by much; re-arrest rates among DWI probationers plummets

More evidence that Texas' 2007 probation reforms perhaps contributed less than has been previously estimated to recent prison population declines. The main strategy of the 2007 reforms was to reduce probation and parole revocations to prison by incentivizing diversion and progressive sanctions programs. That's worked better on the parole side than for probation (aka "community supervision"). From the Dec. 2012 "Report to the Governor and Legislative Budget Board on the Monitoring of Community Supervision Diversion Funds" (pdf):

Felony revocations to TDCJ in FY2012 represent a 2.8% decrease from FY2005 (677 fewer felony revocations) and a 1.8% decrease from FY2011 (432 fewer felony revocations). However, the percentage of revocations to TDCJ for a technical violation of community supervision conditions increased from 48.5% in FY2011 to 49.0% in FY2012.

Those are essentially insignificant reductions given the scope of the decline in state prison populations witnessed over the last half decade.* Felony technical revocations among probationers declined 10.9% from 2005 to 2012, TDCJ reported, but they're still awfully high and that small decline was far out-paced by two factors on the parole side: Dramatically reduced parole revocations and marginally increased approval rates by the parole board. Both may be viewed as an expression of legislative policy. Reduced parole revocations stem from greater use of intermediate sanctions facilities (ISFs) and other diversion programs created after 2007. And higher approval rates, particularly for low-risk offenders, resulted in large part from the board finally edging closer to targets under non-binding release guidelines that the Lege mandated they create.

County-level probation revocation trends
By contrast, reducing probation revocations has been a tougher nut to crack, in part because of decentralized local control over the process among various counties and judges. Here are the relative increases and decreases for probation revocations among Texas' largest departments since just before Texas' much-vaunted probation reforms took effect:

Change in Felony Revocations to 

TDCJ among largest counties, 2005-2012

CSCD	Percent change in revocations
Dallas	-22.8%
Harris	-17.8%
Bexar	94.0%
Tarrant	-4.3%
Hidalgo	-5.3%
El Paso	-39.6%
Travis	32.1%
Cameron	22.4%
Nueces	1.8%

**See note below on Collin Co.

.

Travis County's increase in revocations surprised me given their department's reputation for reliance on progressive sanctions, etc.. Cameron County attributes their increase to "more aggressive absconder apprehension and increased monitoring of compliance with community supervision conditions." Otherwise, Bexar County is the most prominent, chronic outlier among large counties, as has been the case since these reports began coming out.

2012 probation revocations compared

to supervised population, large counties

CSCD	% 2012 statewide probation pop	% 2012 statewide felony revocations
Dallas	13.6%	10.5%
Harris	11.5%	12.4%
Bexar	6.7%	6.8%
Tarrant	4.9%	7.1%
Hidalgo	4.0%	2.8%
El Paso	3.7%	1.5%
Travis	3.4%	3.0%
Cameron	2.3%	1.9%
Nueces	1.7%	2.2%
Collin	1.7%	1.9%

This chart perhaps provides a better sense of relative county practices than the previous one. It compares probation populations and revocations among large counties as a proportion of their statewide total. (See this data for all counties in Appendix C to the report.) Counties in which the right-side number is significantly greater than the left-hand column may be considered more aggressive at revoking probationers than their peers. That differential is especially significant in massive Harris County because of the sheer volume they process. Tarrant's numbers here are especially striking, putting their paltry 4.3% decline from the earlier chart in context. Meanwhile, Travis, Hidalgo, and even Bexar don't appear nearly as problematic on this chart as they did in the first table.

Recidivism among probationers declining, especially DWI
According to the Dec. 2012 report, 71.7% of felony probationers revoked back to prison in FY2012 were convicted of nonviolent crimes - drug offenses (32.2%), property offenses (30.4%), and DWI (9.1%), with the rest coming from violent (17.9%) and other (10.4%) felony offenses.

Remarkably, and for the most part unheralded, recidivism rates for felony probationers have been declining. "The overall two-year re-arrest rate for the FY2005 sample was 34.4% (8,914 offenders). The overall two-year re-arrest rate for the FY2010 sample was 31.8% (8,811 offenders), which was a decrease from the FY2005 sample."

The drop in re-arrest rates for DWI offenders in those two studies was especially striking: 16.9% of the 2005 cohort was re-arrested compared to 11.5% of the 2010 cohort - a 32% drop! That's a success story nobody tells much. Re-arrest rates for probationers convicted of drug offenses declined 13% over this period; 10.6% for property offenders. But DWI stands out. Perhaps new treatment resources aimed at that group are helping.

'Cameron County to crack down on money laundering'

The title of this post is the headline of a Sept. 9th story at ValleyCentral.com announcing the receipt of a multi-agency grant for a special money laundering unit. Reported Ashly Custer of Action 4 News:

The DA's office, Brownsville Police and Harlingen PD received over $2.2 million in August from the Southwest Border Anti-Money-Laundering Alliance to specifically combat money laundering across the US - Mexico border.

The money will be used to jumpstart a new taskforce in Cameron County called the Financial Asset Seizure Team or FAST.

“The old method was just cold hard cash surreptitiously being taken back to Mexico. Obviously with the law enforcement as keen as it is, they were apprehending a lot of those loads going south. So they figured out a different way to do I, that’s with money cards, other related matters -- money order, money transfers, and the like,” said Cameron County District Attorney Saenz.

While grant money will be used to activate the taskforce, money seized as a result of illegal smuggling investigations is what will fund it.

That means FAST will operate without additional costs to the taxpayer.

The team will consist of 19 members who will work alongside federal partners like the U.S. Department of Homeland Security and the DEA.

Mixed feelings: On one hand, the "eat what you kill" funding structure where supposedly the task force will operate "without costs to taxpayers" because of seizures amounts to wishful thinking, at best. None of Texas regional drug task forces - including those along the border - could survive under that model. And that approach forces them to focus more on intercepting short-term money transports, which fails to get at the money laundered through local businesses or purchase of legitimate Mexican commodities like fruits and vegetables, etc..

OTOH, as Grits has previously noted, Texas law enforcement barely focuses on money  laundering beyond this constant search for south-bound mules carrying cash that will get them some quick forfeiture income. If Cameron County's new task force focuses on actual money laundering by banks and businesses in the Valley, and does it in a serious, concerted way, that could get interesting pretty quickly. From the press account it sounds like they'll be pleased as punch to chase mules, thank you, but you never know.

Justice for Sale: Cameron judge took bags of cash to influence court outcomes

Via AP (Aug. 21), here's the denouement of an  extraordinarily ugly story of South Texas corruption:

A former judge who turned his South Texas courtroom into a money-making operation was sentenced Wednesday to six years in prison followed by three years of supervised release.

U.S. District Judge Andrew Hanen sentenced former state district Judge Abel Limas, 59, on one count of racketeering in Brownsville, on the border with Mexico. He also ordered Limas to pay almost $6.8 million in restitution. ...

Limas drew the FBI's attention in late 2007 as he neared the end of his second term in office. Investigators intercepted some 40,000 phone calls and collected surveillance photos documenting how Limas had converted his courtroom into a criminal enterprise, collecting bribes and kickbacks totaling $257,000.

Limas pleaded guilty in 2011 and became the government's star witness in four related trials that shook Cameron County's justice system. He could have faced up to 20 years in prison but received credit for cooperation.  ...

Racketeering is a charge typically associated with organized crime. But in Limas' case, prosecutors said his courtroom was the criminal enterprise where he generated cash.

Limas took kickbacks from friends, accepting thousands of dollars for favorable rulings. In one case, he accepted $5,000 in cash handed to him in a McDonald's bag by then Cameron County District Attorney Armando Villalobos, just to keep his mouth shut. ...

In March 2010, Limas was summoned to by the FBI. A year later, he pleaded guilty to one count of racketeering and agreed to cooperate with authorities.

Limas talked to the FBI more than three-dozen times and became federal prosecutors' star witness at all four trials that followed. He helped take down the sitting district attorney and a former state lawmaker [ed. note: this was Jim Solis], and cast doubt on a large chunk of the Cameron County bar.

Even beyond the dozen people charged in the investigation, Limas implicated many more attorneys in his testimony for practices that were at a minimum unethical.

See coverage from the McAllen Monitor of related civil litigation published recently while Grits was out of town. Here's more background on the former DA's role.

Former Cameron DA convicted of bribery

Reported the Houston Chronicle ("Former DA convicted in corruption trial," May 24), "A jury on Friday night found former Cameron County District Attorney Armando R. Villalobos guilty on all but two corruption charges after two weeks of testimony that he took bribes to influence cases before him." The case is part of a broader ongoing corruption prosecution in South Texas.:

Villalobos, who took the stand in his own defense, was charged in a wide-ranging corruption scheme in Cameron County that has resulted in guilty pleas by eight people, including former state Rep. Jose Santiago “Jim” Solis as well as [former state District Judge Abel] Limas.

Former Austin attorney Marc Rosenthal and Port Isabel attorney Ray Marchan were convicted by juries of extortion and racketeering. Marchan took his life when he jumped from the Queen Isabella Causeway in Port Isabel earlier this year on the same day he was to report to prison.

One notices it took the feds stepping in to hold a local DA criminally liable. State-level accountability mechanisms from the state bar to the court system as a general rule aren't up to the task.

AG correctly interprets bad law: Open Records Act nostalgia and law enforcement records

The Attorney General's open records division ruled that the state does not have to release security footage of two Brownsville police officers shooting an eighth grader at a middle school . Reported the Brownsville Herald ("Ruling: Security footage should not be released to public," Oct. 17):

Jaime Gonzalez Jr., 15, an eighth-grader at the school, was killed by two Brownsville police officers in a school hallway after he pointed a weapon at them and refused to put it down, despite being ordered repeatedly to do so. The weapon was later determined to be a pellet gun.

John Bussian, the attorney who handles First Amendment issues for AIM Media Texas LLC, the parent company of The Brownsville Herald, said the AG’s office issued its ruling on an issue that was not even addressed in the request made by the DA’s office to keep the video confidential.

“Unfortunately, the Attorney General found another excuse not to allow public access to this important material that would remove any suspicion about what happened. The downside of the ruling is that whenever a juvenile dies the public will never have access to the records of the surrounding circumstances,” Bussian said.

In a letter to the state dated Aug. 28, the DA’s office argued that since no charges were filed in the case, the video need not be made public.

Despite the fact that the court perhaps unnecessarily relied on arguments, apparently, that the state did not make to come to its decision, from my own understanding of the Public Information Act, Grits reluctantly agrees with the court ruling. That's because I think the court correctly interpreted the current statute, which leaves release of such information to the discretion of  the agency in cases where there's no criminal prosecution. But as a long-time user of the Public Information Act, né the Open Records Act, I also understand that before 1996, those records would absolutely have been public information, and I'd like to see the Legislature reverse the changes in 1996-97 spawned by the Texas Supreme Court case Holmes v. Morales, and at a pivotal moment codified the following session into state law. State Rep. Harold Dutton has heroically carried legislation in the past that would perform that good-government mitzvah, but his bill deserves bipartisan sponsorship. Right now, departments pick and choose when they'll release such information based on their own, short-term public relations goals.

A quarter-century ago when I began using it in earnest, the Texas Open Records Act was a mighty tool for justice, allowing the weak to challenge the powerful in ways that today have been diminished or sometimes shut down entirely, particularly when it comes to criminal justice. Back then, when the law was less than two decades old, many of the Open Records Act's original proponents were still at the Texas statehouse to defend it from attack, while then-Attorney General Jim Mattox was building up what, in retrospect, was the most pro-transparency record of any Texas AG, ever. Looking back, though I couldn't have known it at the time, those were the salad days of government transparency in Texas. Today, not so much.

About half of all open-records requests, if we are to judge from the proportion of cases sent to the Attorney General for review, relate to law enforcement and/or criminal cases, so the criminal-justice system is one of the main things the general public actually wants to know about. But as Grits has related before, the courts, the Legislature and a series of lame Attorneys General have conspired to gut the open records act (now annoyingly rebranded the "Public Information Act"), particularly as it regards records related to law enforcement and the criminal justice system. This is an example of a correct court decision interpreting a law  that gave too much discretion to law enforcement. But it hasn't always been thus; they're interpreting a section of the Public Information Act, section 552.108, which was rewritten in 1997, just a few short years before the GOP took control of the Texas House and Senate. The Lege could go back to the Mattox-era interpretation - as Rep. Dutton has proposed - if GOP champions existed to take up the mantle for transparency.

There's a lot of new blood coming into the Texas Lege, particularly in the House, where perhaps a third of the members will be freshmen or sophomores, and for the most part their views (read: "voting patterns," not espoused views) on open-records matters remain a mystery. Some may have never seriously considered the subject. In the Senate, long-time Public Information Act custodian Jeff Wentworth, who was generally a barrier to any and all pro-transparency reforms and an ally of law enforcement (and other) interests intent on weakening the act, was defeated in the primary, so that body will need to find a new go-to senator (or at the most, two) on the issue. Whoever that senator might be, their priorities will significantly influence whether that body will take a pro-government or pro-citizen requestor approach. Given that uncertainty, Grits cannot begin to guess how (or whether) the Lege might consider open records issues next session, and if so, whether they'll be pro-government or pro-transparency. I just know the status quo could use some shaking up and government transparency could use some new champions in both legislative chambers. Be on the lookout and let me know in the comments if you hear of any.

MORE: From the Corpus Christi Caller Times.

Brownsville PD can't or won't regulate predatory bail practices in their own house

In Brownsville, police are unable to enforce regulations on bail bond companies, they say, literally when the violations are occurring inside police headquarters, which also houses the municipal court. "Throngs" of bail bondsmen gather there each day in violation of county regs while officials look the other way, reported the Brownsville Herald ("Bail company solicitation violations rampant," May 23):

The Cameron County Bail Bond Board prohibits bail bond companies from approaching people to ask for business in a police station, jail, prison, detention facility or anywhere on state, city or county property where people are detained by law enforcement.

Penalties can range from loss of a surety license to a public reprimand or return of the fees charged in the transaction.

The violation is rampant in Brownsville, and allows bondsmen to take advantage of stressed people unfamiliar with the bail system, police and those interviewed for this article said.

The Brownsville Police Department is investigating two complaints received last week regarding bondsmen soliciting clients inside the police department.

On any given morning, throngs of bondsmen are in or near the courtroom inside the Brownsville Police Department, hoping to get business from those arrested the previous night.

Ironically, "A warning sign on the door advises bondsman of the county regulation." So essentially as one walks through the police department into the municipal court in Brownsville, one receives the implicit message, fair or not, that this is a place where the law is honored mostly in the breach. A comparable image might be a "No smoking" sign on the wall with "throngs" of smokers casually puffing away around it. Or the corner near my neighborhood where years ago the city put up "Drug Free Zone" signs under which teenagers stand around slinging dope. Except this operation is going on literally inside the police department.

The explanations for non-enforcement seem inexplicable, with police saying to stop the practice an "officer has to keep watch." But that's just rationalization. Is there really no bailiff in the municipal court, no clerk? Not a single court officer who could approach bail bondsmen and tell them they have to leave? Even if not, an officer wouldn't even need to be stationed there full time. Dropping by one or two times each morning to chase off the vultures would likely be sufficient - it's not like they'd have to travel far. That's an excuse, not a reason.

Municipal courts handle only Class C misdemeanors which carry no jail time and a maximum fine of $500. But an anecdote was recorded of one Brownsville bail bondsmen (regrettably unnamed by the reporter) who approached a confused woman and convinced her to give him $300 to get her husband released.

[Elane] Flores said she felt vulnerable and desperate that morning, late in December, and too willingly handed over a wad of cash to a stranger. She said the bondsman took the money and walked away without offering a receipt or business card.

“As soon as he took the money and started leaving, my heart started racing. There was no business card. Everything was sinking in,” Flores said.

The man did bail out her husband, but she was out several hundred dollars. The company did not call her to tell her it posted bond, nor did it openly communicate afterward, she said.

They refunded her $150 of the $300 after she repeatedly complained.

How did they arrive at the $300 figure? It was "all the cash she had available," the paper reported. The atmosphere surrounding the transaction reminds me of experiences traveling in Turkey where hawkers from hotels and other vendors would mercilessly accost confused tourists with sales pitches the moment they get off the bus. The price of the services offered, like the bail bondsman's in the story, always seemed to vary based on the mark's customer's ability to pay..

But let's leave aside for a moment WHERE the transaction took place. In Grits' opinion, a bondsman attempting to charge 60% of the maximum fine to get Class C misdemeanants released is little better than a straight-up hustler or con man preying on the vulnerable. If that's legal, it's a legalized swindle, akin to some of the legalized (or at least, unprosecuted and unrestrained) cheating that goes on on Wall Street. To have it taking place inside the police station, however, awards the practice in the public eye with law enforcement's implicit stamp of approval. I'm sure it seems like business as usual to those involved, but to Grits the whole situation appears incredibly cynical and brazen.

How much do you wanna bet the "solution" proposed will be to eliminate the regulation instead of enforce it?

UPDATE/CORRECTIONS: A pair of commenters have corrected two misconceptions in this post: First, the ban on soliciting in the police department isn't just a county reg, as reported in the story, it's a Class B misdemeanor to "solicit bonding business in a police station, jail, prison, detention facility, or other place of detainment for persons in the custody of law enforcement." Second, another commenter informs us the municipal court in this case "handles magistration of all crimes, not only Class Cs," which much better explains the gaggle of bondsmen. Still, Ms. Flores' husband was arrested for public intoxication, a Class C offense, so the critique about charging 60% of the maximum fine amount for Class C bonds still holds.

Cameron County DA accused of exchanging 'favorable discretion' for money

In Cameron County, reports AP, federal prosecutors have accused District Attorney Armando Villalobos of

soliciting and accepting more than $100,000 in bribes and kickbacks for favorable discretion, including in decisions to minimize charges, pretrial diversion agreements and case dismissals. His indictment together with his former law partner Eduardo Lucio stemmed from a yearslong investigation that has implicated attorneys, a former legislator and at its center, former state District Judge Abel Limas, who pleaded guilty to racketeering last year.

Prosecutors have a tremendous amount of discretion and when that discretion affects people's lives, it can become a commodity in the hands of the unscrupulous, which is what's alleged here. County Judge Carlos Cascos isn't wrong that "the indictment puts the office under a cloud and would affect morale," but I only agree that's reason to resign if Villalobos really did exercise "favorable discretion" in exchange for money. Indeed, if he did that, the consequences should and likely will be far worse than just losing his job. But those are serious charges and somebody still has to prove them.

Cameron jail fails inspection over understaffing, inmates sleeping on floor

The Cameron County Jail failed an inspection because inmates were sleeping on the floor - not because beds weren't available but because the jail was understaffed and couldn't monitor an additional wing. Reported the Brownsville Herald:

The Cameron County jail division has been reprimanded by the Texas Commission on Jail Standards for having inmates sleep on the jail floors, which violates TCJS rules.

An annual inspection of the county jails this week found the county in violation of Section 259.134 of the Texas Administrative Code that deals with multiple occupancy cells, said Adan Muñoz, executive director of the TCJS.

“We did find some noncompliance issues, but mostly they were in regards that they were operating above the approved capacity and the inmates were on the floor, which is in violation of standards,” Muñoz said.

The code specifically states that the floor space in the jail cells should be clear. In Cameron County’s case, inmates were found sleeping on the floors during the inspection, said Shannon Herkoltz, assistant executive director.

“They had available beds, but their deal was they said ‘We are not going to put them in the beds because we don’t have eyes to watch them,’” Herkoltz said. “So in their opinion, it was better to put them on the floor where they had officers stationed.”

Part of Cameron's problem is that, when they built their jail, they built beyond capacity in order to accept contract inmates from the US Marshals Service. For a while they were paying more to house their own inmates elsewhere than the Marshal's Service was paying them for the beds they rent.

The Sheriff's Office tried to spin the news, falsely claiming that this was an "emergency" inspection brought on by media reports, when really it was their usual annual inspection (which as of last session are now performed unannounced). Reported the Herald:

Chief Jail Administrator Mike Leinart told Commissioners Court that TCJS conducted an emergency inspection because of the media reports and “wrote us up.”

“The jail standards was in another county, and when they read that we were losing six jailers in the newspaper, they did an emergency inspection on us. ... They wrote us up and I have to send 60 inmates out today (Thursday).”

County Judge Carlos H. Cascos countered that the reprimand could not have come because of the media reports, because the changes in jailers won’t occur until October.

“They did not come and find the jail not in compliance (because of the number of jailers), because we had not done anything yet,” Cascos said.

Leinart later conceded that TCJS’s action had nothing to do with what action the county was to take Oct. 1.

Cascos said Friday that county commissioners were not given the full story at their meeting Thursday.

“We were not told that last night that (inmates) were sleeping on the floor. What we were told that the prisoners were moved out because we did not have adequate staffing,” he said.

“It’s disturbing and we need to make every effort to comply with the law and rules set forth by the jail commission,” Cascos said.

Sheriffs pretty routinely treat TCJS like the bogeyman, blaming them in the press for problems of their own creation. I find it rather humorous to see them getting caught in a fib over it.

Fish stories and dog tales: Police misconduct roundup

Here's a roundup of recent police accountability stories that were big enough to make it onto Grits' radar screen but haven't found their way into individual posts:

Firing too harsh for failure to report jail beating?
Three Cameron County jailers have been fired: One for beating an inmate and two for watching and failing to report. The two who covered up the incident  say firing them was too harsh. Let me know if you agree in the comments.

Sheriff convicted over fish story
Sheriff Weldon Tucker in Bandera County was convicted of a felony charge of abuse of official capacity after he was caught using the department's rescue boat to check his trot lines. The offense seems trivial except that he lied about it: "In 2009, Tucker publicly denied using the boat recreationally, or outside Bandera County. But a game warden had stopped him as he used it to retrieve trot lines at Choke Canyon after his personal boat broke down."

Dogs v. State
Under pending legislation, you could soon get life in prison if your dog attacks and kills someone under 18 or over 65, but if a cop comes on your property without a warrant and shoots your dog, they won't pay the vet bill because they're not liable for property damage. Go figure.

Not quite a 'mastermind'
Reports AP, "A former Dallas police officer convicted of aggravated robbery for masterminding a heist at a Sam's Club while working there off-duty as a security officer has been given probation." When you fail at robbing a place where you yourself are providing security, perhaps "mastermind" isn't the right word.

Shake down
Another cop, this time in Houston, arrested for allegedly shaking down drivers at traffic stops. Here's an interview with the fellow who reported the alleged extortion.

Prostitution stories
A former Houston police officer was sentenced to six years in prison for raping a prostitute, while a Harris County deputy constable was murdered after an argument over money with a pimp whose employee's services he'd just enjoyed.

Wrongful death suit over off-duty shooting
The family of a wrecking truck driver has filed a civil rights suit over his death at the hands of an off-duty Houston police officer, alleging that Officer Ryan Gardiner "shot and killed John T. Barnes under circumstances where no reasonable police officer would have done so."

Bystander shot after foot chase
A Bryan police officer chasing a man, apparently, because he ran, shot him several times at the denouement of a foot chase, also injuring a construction worker/bystander. "The shooting happened Friday morning as an officer was running after a suspicious person who may have been intoxicated, according to the Bryan Police Department." He and another officer are on administrative leave pending the investigation.

Second time's the charm
An arbitrator upheld the second firing of Austin police officer Leonardo Quintana over a domestic violence allegation after he'd been reinstated to the force after his earlier firing in the wake of shooting Nathaniel Sanders, which is the subject of an ongoing civil rights lawsuit by the family of the deceased.

Deputy allegedly picking colleauge's bones
From the Fort Worth Star-Telegram: "A former deputy recently fired by the Parker County Sheriff's Department surrendered to authorities Saturday after he was indicted in the theft of thousands of dollars from a memorial fund set up to benefit the widow and son of a fellow deputy." Yikes!

Suit targets poor conditions at Harlingen muni jail

In Harlingen, according to the SA Express News:

For minor offenses, police here jailed poor people for a week or more without adequate food, showers or medication, the South Texas Civil Rights Project alleged in a lawsuit against the city Tuesday.

The complaint was filed in federal court in Brownsville on behalf of two plaintiffs who say they were hospitalized for deplorable conditions, including a bologna sandwich that gave one food poisoning.

The suit raises once again the lack of regulation at Texas municipal jails:

Adan Munoz, executive director of the Texas Commission on Jail Standards, said the state regulatory agency had no authority over city jails.

“City jails are just kind of out there,” he said.

Munoz said an interim study regarding state oversight of municipal jails got set aside as Austin lawmakers turned their focus to the statewide budget gap.

These allegations come on the heels of the TX Court of Criminal Appeals overturning a conviction on "actual innocence" grounds regarding false allegations by a jailer against an inmate at the Brownsville city jail. These Cameron County lockups are virtual poster children for the need to regulate municipal jails.

RELATED: Scandalous state of city jails unlikely to change any time soon.

Actual innocence case from Brownsville: Teen choked by city jailer he was falsely accused of assaulting

Here's an actual innocence case out of Brownsville that doesn't exactly fit the DNA exoneration mold, from the Courthouse News Service, which reports the story of George Alvarez, who "spent 4 years in prison based on a Brownsville Police jailer's false assault charge against him, and BPD's concealment of a video that proved his innocence." The Court of Criminal Appeals recently approved his habeas corpus writ based on "actual innocence" grounds, and he's filed a civil rights lawsuit (pdf) in federal court. (Texas has no state civil rights statute of its own comparable to Sec. 1983 in the Civil Rights Act.)

Alvarez was 17 years old, 5'4" and a slight 135 lbs. when he was jailed for allegedly burglarizing a car then attacked and choked by a 200 pound city jailer. The jailer filed an offense report claiming Alvarez attacked him seeking assault charges, but he and his superiors failed to include with the complaint exculpatory video evidence showing that was not true. The blue wall of silence continued even after the evidence was discovered during an investigation by BPD's internal affairs division, making them complicit in the coverup. What's fascinating to me is how the exculpatory evidence was ultimately discovered, a roundabout tale described in the closing paragraphs of the article:

While Alvarez was doing his time, a detainee named Jose Lopez filed a similar lawsuit against BPD "for use of excessive force by its jailers, for the withholding of video evidence, and for the filing of fabricated charges against him," according to the complaint.

Through discovery in the Lopez case, the video of Alvarez was discovered in BPD's internal affairs records, Alvarez says: "Plaintiff George Alvarez's CD was buried inside an internal affairs folder along with the Brownsville Police Report filed against plaintiff," Alvarez says. "Counsel for plaintiff noticed that a police report charging George Alvarez with felony assault was attached to the CD and also noticed that the police department withheld the CD and did not include it as part of the police report. A review of the CD quickly revealed its exculpatory content."

Alvarez filed for habeas corpus and the Texas Court of Criminal Appeals found him "'actually innocent' of the charges that sent him to prison," according to the complaint.

He seeks punitive damages from the City of Brownsville, Police Chief Carlos Garcia, Jailer Jesus Arias, Sgt. David Infante, Lt. Henry Etheridge and Cmdr. Robert Avitia.

Quite remarkable: There were not one but at least two cases where the Brownsville PD Internal Affairs division allegedly withheld exculpatory video to cover up assaults by their employees, one of them resulting in a man being sprung from prison on an "actual innocence" habeas writ. This is the biggest police department on the eastern end of the Rio Grande - how confident does this make you that BPD Internal Affairs is diligently pursuing corruption among their rank and file officers?

Here's a link to Alvarez's habeas writ before the CCA, though regrettably all the documents don't appear to be linked there as one would usually expect.

How Cameron County's entrepreneurial jail scheme costs taxpayers

I've written before about the folly of counties building extra jail space in hopes of engaging in entrepreneurial incarceration, either taking in federal prisoners or inmates from other counties. The blog Texas Prison Bidness points out a terrific example out of Cameron County at the state's southeastern tip of how that strategy can backfire. The Cameron Sheriff has begun to ship local, pretrial inmates three hours north to Nueces County in order to honor federal detention contracts which were originally pitched as profit centers but now are proving problematic.

Cameron County Commissioners thought they were being clever when they overbuilt their jail in order to lease the extra space to the feds, but it turns out they've outsmarted themselves. Here are the details from the Nov. 20 Brownsville Herald:

The inmate transfer is necessary for Cameron County to meet its commitment to the U.S. Marshals Service to provide space for 300 federal inmates in the county’s jail system, County Judge Carlos H. Cascos said.

Under a 1998 contract between Cameron County and the U.S. Marshals Service, the county agreed to provide space for 300 federal inmates at any given time in exchange for $3 million to help pay the cost of a new county detention center, Cameron County Detention Center No. 3.

The contract is for 15 years and will expire in 2015.

The Intergovernmental Cooperative Agreement was signed by Eduardo Gonzalez, the former director of the U.S. Marshals Service, along with Hiram Arthur Contreras, the former U.S. Marshal for the Southern District of Texas, Gilberto Hinojosa, a former Cameron County judge, and Sheriff Omar Lucio.

Cameron County receives $36.35 from the federal government per day for every federal inmate it houses in a county facility. If it were able to maintain that 300-inmate figure, the county would receive $9,414.65 per day or more than $3.4 million per year for housing the federal prisoners.

As of late this week, the county had 76 federal inmates housed in its county jails. However, the federal government wants to be guaranteed that 300 beds are available for federal inmates at all times.

In the past, the county has had to transfer some of its federal inmates to other counties to make room for Cameron County inmates.

Although the county will pay LCS $48 per day, per inmate, the cost is lower than what the company usually charges, Lucio said.

So thanks to this entrepreneurial jail deal, Cameron County now gets paid $36.35 per day to house federal inmates and must pay $48 per day to house their own, local pretrial detainees three hours away. And that doesn't include extra transportation costs to bring inmates back for court dates, etc.. A Herald commenter pointed out the absurdity of the proposition:

Cool...they are going to pay LCS $48 per day per inmate so they can take in $36.35 per day from the Feds to take their inmates. And Cascos says this is a good deal. (Math must not be his strong point...)

While they are in a mood for great bargains, I'll offer to start supplying all the County office supplies at only 25% over what they are paying now. Call now!

Ironically, though, despite the obvious flaws in this approach, Cameron County seems committed to further entrepreneurial jail building. Instead of looking for ways to reduce the number of pretrial detainees or seeking contract revisions to house fewer federal prisoners, they're currently in the midst of adding jail capacity so they can keep up their federal contracts. It's highly questionable whether that would really make sense for an actual entrepreneur in a free market setting, but the commissioners court is playing with OPM (other people's money - taxpayers' to be exact), so the fact that entrepreneurial jail building is a long-term economic loser hardly matters - they're worried about the next election cycle.

I'm a believer in free markets but history has blunted some of the sharper edges of free market philosophy. It has its place but it has its limits. Following John Maynard Keynes, my personal belief is that there are "public goods" and private goods depending on the particular characteristics of the product and the market through which it's delivered.

Prisons are public goods. There's no free market because there's only one customer, really: the government (at whatever level), or more broadly, the taxpayers. In the long run, an entrepreneurial approach to incarceration by government inevitably invites conflict - as it has in Cameron County - between public officials' duty to taxpayers and their contractual market obligations. In the most extreme case I'm aware of, Gregg County after Hurricane Rita had to turn away local arrestees in order to fulfill rent-a-bed contracts that soaked up too much of their capacity.

Building and operating prisons and jails are and should be government functions, and it would prevent a lot of problems if counties would restrict themselves to building facilities that meet the obligations of their own jurisdictions, not misguidedly treat them as potential profit centers.

See past, related Grits coverage:

• Rent-a-bed policies, not Rita, responsible for Gregg County jail turning away prisoners
• Prison privatization ginning up local controversies
• Do Limestone and McLennan Counties need three jails apiece?
• McLennan County seeks profit over public safety with privatization schemes
• Grayson County Judge pushing irresponsible jail building scheme