Policy solutions for Denton County's understaffed jail

The Denton County Jail is suffering an "extreme staffing shortage," reported the Record Chronicle, although their 13 percent vacancy rate is far lower than at the Texas Department of Criminal Justice.

Even so, it's worth reiterating the quickest, easiest ways for Denton County to reduce its jail population to levels they can safely staff:

Reduce arrests for Class C misdemeanors by the Sheriff, Denton PD, and other local law-enforcement agencies by implementing policies similar to Austin PD's "Freedom City" initiative.

Use discretion to stop arresting/charging people for low-level marijuana possession until the state either changes the hemp law or crime labs are able to distinguish legal from illegal THC levels in pot.

The District Attorney could use his discretion to dismiss Class B driving-with-invalid license cases, which mostly stem from about-to-go-away Driver Responsibility surcharges. (These have become increasingly common.) Arresting people for what amounts to a poverty crime - essentially an administrative violation, at that - contributes nothing to public safety.

These are all categories of misdemeanor defendants who would likely plead out to time served, anyway. Why not change policies on the front end to keep them out of jail and avoid having to hire guards to manage them?

Denton County may not be the first jurisdiction that leaps to mind when it comes to criminal-justice reform, but Necessity is the Mother of Invention. If they don't want to pay jailers competitive salaries compared to median local incomes, the other option is to jail fewer people. Reducing incarceration among these discrete, nonviolent categories would be a smart place to start.

Roundup: Top stories cropping up during Grits' recent absence

Grits is still poking around at news stories that cropped up while this blog was on a brief hiatus and thought I'd share a few that may not make it into independent posts.

Houston police union balks at mandatory DWI blood draws
The Harris County DA now requires blood tests in every DWI case where drivers refuse a breath test. The police union, reported the Houston Chronicle (July 28) objects because it takes police off the street and makes them unavailable for other routine tasks. "'They're not going to be as savvy on how to do these warrants, so it's going to take them six to eight hours, and that means the officer is off the street for that entire time,' [HPOU President Ray] Hunt said. 'It's a major issue.'" Grits' take: The new DA is willing to sacrifice police coverage to make securing DWI convictions easier, an option available to him because police and prosecutors' funding come from different pots (city vs. county). Whether that's a wise public policy choice depends on whether you think maximizing police coverage or misdemeanor convictions improves safety more. IMO the strongest evidence argues for the former, but reasonable folks may disagree.

Bribery investigation targets Denton Sheriff
Reported the Dallas Morning News (Aug. 9), "The Denton County sheriff (William Travis) is under investigation over allegations that he tried to bribe a political opponent to quit an election and also tried to bribe a former deputy into abandoning a lawsuit against the department." All involved deny the allegations. Here's a link to the affidavit written by Texas Ranger James Holland to seize the cell phone of Constable Jesse Flores as part of the investigation into Sheriff Travis. As an aside, readers in the comments pointed out that a Denton County Sheriff was convicted of bribery 25 years ago, also based on offering a political opponent a job to drop out of the race.

Light sentence for cop who stole from crime scene
A Houston police officer pled guilty for stealing cash from a crime scene. He received deferred adjudication with two years of probation and could ultimately have the conviction wiped from his record. After all, one supposes, he was only stealing from criminals.

GOP critic blasts Montgomery County private prison maneuvers
A blogger at GOP Vote complains that the Montgomery County Commissioners Court has launched into a seemingly never-ending jail building spree without consulting voters.

Opposition mounting to McAllen's private jail scheme
Fifty groups have signed onto a letter opposing a speculative jail privatization scheme in McAllen, the McAllen Monitor reported. Here's a copy of the letter. Notably, the Monitor knew about the proposed deal and intentionally failed to report it for more than a year. If they hadn't, the opposition might have a better chance of influencing the process.

News flash: Parole board must follow laws
This story from ABC's Good Morning America about Texas parole laws is possibly the most ignorant thing I've seen written by a professional reporter in 2013, which is saying something. The writer complains of a "loophole" requiring murderers (or anyone else) convicted between 1977 and 1987 to be released via a since-eliminated "mandatory supervision" law, under which they're let go when time served plus good time equals their sentence. What a crock! Since when is it a "loophole" to apply the law as written? Anyway, that hasn't been the case for years but it would be unconstitutional (in spades) to apply ex post facto rules to sentences issued under the old regime. This story was a) 26 years old, so not "news," b) utterly ignorant of the law and reality, and c) blatant demagoguery. Pathetic that this garbage passes for journalism at a major national news outlet.

Pot busts lowered to Class Cs in Hudspeth County to save jail space
Hudspeth County has no room at the inn jail for drivers caught with marijuana at the Border Patrol checkpoint in Sierra Blanca so the Sheriff gives folks Class C paraphernalia tickets and sends them on their way. Said Sheriff Arvin West, "The last thing in this world I want to be is a pothead hero, but the laws we’ve got now don’t work. Something’s gotta change."

Did Texas DPS unwittingly conspire in using NSA spy intel for drug cases?
Despite my intense interest, Grits hasn't written much about the NSA metadata collection scandal because it's being intensively covered at the national level and isn't a Texas-specific issue. But the revelation that the DEA uses that intel then lies about its sources in court, pretending probable cause was generated at traffic stops, almost certainly has implications for cases in Texas, and our Department of Public Safety may have been an unwitting accomplice to this fraud. Reported Reuters:

two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily. (Emphasis added.)

A former federal agent in the northeastern United States who received such tips from SOD described the process. "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said.

DPS wouldn't have known about the NSA angle. From their perspective, the state police just received and acted on tips from the DEA. But if they then conspired to pretend the stop was based solely on a traffic violation and failed to disclose the DEA intel to defense counsel, that would be a significant breach of trust. Though not Texas-specific, Gideon at A Public  Defender lays out the implications of this revelation as well as anyone I've seen.

New Holder policy either 'conservative,' 'lawless,' or (most likely) just pro-prosecutor
Conservatives are split over US Attorney General Eric Holder's announcement that the USDOJ will no longer pursue charges with mandatory minimums in drug possession cases. Marc Levin and Vikrant Reddy from the Texas Public Policy Foundation wrote in The National Review that Holder had adopted "conservative sentencing reforms" while columnist Charles Krauthammer bloviated that the decision amounted to "lawlessness." Our old pal Vanita Gupta had a column in the New York Times framing the issue of drug-war based overincarceration in terms of Texas' Tulia episode and suggesting more effective ways to reduce it. Ken at Popehat provided a good explanation of what Holder's new policy will mean in practice and the drawbacks of relying on prosecutorial discretion to limit mass incarceration. At Forbes, Jacob Sullum reminds us that the Obama Administration's record on the drug war has been generally atrocious. He points out that if Holder's "criteria identify people who do not deserve mandatory minimums, they also identify people who deserve the president’s mercy" via the pardon process. Don't hold your breath.

Reject bill to make grand juror names permanently secret

The Texas House Criminal Jurisprudence Committee on Monday will hear legislation (SB 834 by Estes) to make grand juror names permanently secret, a measure Grits can hardly believe escaped the Senate and which deserves a swift killing in the House. Grits had blasted the bill earlier on a number of fronts, declaring that:

If the grand jury system - which already provides little if any restraint and generally serves as a rubber stamp for whatever decisions prosecutors have already made - becomes a complete secret run by anonymous members whose names will never be released, IMO they should probably just scrap it as farce and a waste of time. Right now, perhaps it's true prosecutors can get grand jurors to indict a ham sandwich. But if we can't know who approved (read: rubber stamped) prosecution decisions and 97% of cases end in plea bargains, it become increasingly difficult to tell if there's any meat in the sandwich at all.

Conservative blogger Big Jolly then took the matter to the next level, describing important public-interest stories from the Denton Record Chronicle (pdf) and the Houston Chronicle which would not have been possible if Sen. Estes' secrecy bill were the law of the land. (The nine-year old Houston piece in particular unpacks the law-enforcement biases in backgrounds of many Harris County grand jurors with the assistance of academic researchers, an investigative method and story that Grits suspects could be replicated nearly anywhere.) Jolly also laments that, if Estes' bill became law, the public could never have known last year about political connections between then-challenger Mike Anderson and a so-called "runaway" grand jury investigating former DA Pat Lykos (no charges were ever filed).

Jolly points out that Texas is one of only two states still using the "key man" system to appoint grand jurors, where a judge appoints commissioners who in turn appoint the grand jurors. That means transparency about who serves is important here even more than in other states. The key-man system presents a much greater risk of cronyism.

Only the Texas Defender Service testified against the bill in the Senate, with a slew of prosecutors supporting it. (Hard to believe the criminal defense bar didn't show up on that one, or the press.) But even if committee testimony doesn't fully explicate the problems with this bill, one hopes the House committee or their staff will review the critiques from Grits and Jolly as well as the news stories out of Denton (pdf) and Houston to see what we'd be giving up if they make grand juror names secret. Bad idea; bad bill.

RELATED: The House Criminal Jurisprudence Committee already approved a measure requiring greater grand-jury transparency: HB 3334 by Rep. Bryan Hughes which would increase accountability of grand juries by requiring that their interviews with all witnesses be recorded, not just defendants. That bill passed the House this week and has been referred to the Senate Criminal Justice Committee. Will the same House committee members who wanted grand-juror testimony recorded think that grand-juror names should never be publicly known? I suppose one could hold both views simultaneously, but it seems like a mildly incongruous position. If the committee thought grand juries needed more transparency a month or so ago when voting on Hughes' bill, will they now act to further lower the cloud of secrecy surrounding grand jury membership? We will soon see.

Ex-Denton prosecutor named one of America's worst bosses

A fired supervisor at the Denton County District Attorney's Office, Susan Piel, came in at number six on the list of America's Worst Bosses in 2012 after she allegedly denied promotions and contributed to a hostile work environment for an African American attorney who complained of racially bigoted remarks by Piel's husband, also an attorney in the office. Though the Denton DA at first defended the accused, the Piels and two others were eventually fired after a federal jury awarded just more than a half million dollars to the wronged employee. See Grits' earlier coverage of the episode which earned her this dishonor. According to eBoss Watch, which produced the rankings:

To date, the 2012 America’s Worst Bosses have cost their employers over $41 million in monetary damages and lawsuit settlement payments.  Of this amount, the 2012 worst bosses in the public sector have cost their respective taxpayers over $21 million.

The managers who made this year’s list of America’s Worst Bosses were named in workplace lawsuits filed by their employees and were accused of workplace harassment and/or sexual harassment, discrimination, retaliation, and/or creating a hostile work environment.

Support growing for jail diversion for traumatized veterans

An advisory group on veterans services convened by the Legislature recommended the criminal justice system be tweaked to accommodate veterans. Reported the Dallas News (behind paywall), "Veterans’ health and mental health needs should be a priority of the criminal justice system, the council’s report said. The Legislature should provide grant funding to local governments for expansion of the Jail Diversion and Trauma Recovery Program, according to the report." (See here for more background on the Jail Diversion and Trauma Recovery Program in San Antonio.)

Arguably, the goal of diverting traumatized or mentally ill veterans from the justice system has wide bipartisan support. Recently Denton County, a conservative bastion, opened its own veterans court, according to the Denton Record Chronicle ("Court program offers new path for veterans," Nov. 11):

For some combat veterans, trauma — mental or physical — is part of their service to our country. Such stress and turmoil can lead some to drinking or other abusive behaviors, and the accompanying run-ins with the law.

County officials see another solution.

The Denton County Veterans Treat­ment Court Program, approved by commissioners in 2009, is finally starting to become active, county officials said.

Denton County’s program is modeled after a successful program in Tarrant County led by Judge Brent Carr and is designed as a collaborative process between the court, defense counsel and prosecutors to treat combat-related mental illnesses that lead to the veteran’s criminal behavior.

“If the veteran successfully completes the program, his or her case will be dismissed by the district attorney’s office — essentially their record will be expunged,” First Assistant District Attorney Jamie Beck said.

Of the crimes committed by program participants, the majority will be drug- and alcohol-related, with some possible violence charges, she said.

“There will have to be consent by the victim for this to happen, and we only take a handful of cases — there is a very rigorous screening process they have to go through,” said County Criminal Court No. 3 Judge David Garcia, who will be hearing the cases.

Grits supports veterans courts but it's important to remember that, in the scheme of things, a "veterans court" is really just a specialized mental health court. So their success hinges on overcoming all the same barriers and shortages that impact non-veteran defendants suffering from mental illness and substance abuse.

Jury awards Denton prosecutor half-mil after racist office remarks

Ugh. ... After a black defendant in Denton County drunkenly drove into a cemetery, knocking over gravestones, struggling with and berating the officers who arrested her, a prosecutor in the local DA's office said to a black colleague that the woman's behavior made him “understand why people hung people from trees,” and that it made him “want to go home and put on his white pointy hat.” When the colleague reported him, she was dubbed a "troublemaker" and harassed by others, including one of the prosecutor's relatives who worked in the office. The pointy-hatted prosecutor's wife was the plaintiff's supervisor. The black prosecutor sued in federal court, and as a result, reported the Denton Record Chronicle, "won a federal racial discrimination suit against the county Thursday and was awarded a little more than $500,000 plus attorneys’ fees." Further:

The suit alleged that felony prosecutor Cary Piel made racially insulting remarks in Boldware’s presence; that his wife, Susan Piel, who was [Nadiya Williams] Boldware’s supervisor in the misdemeanor crimes section of the office, did not protect Boldware from having to hear those remarks; and that Ryan Calvert, Susan Piel’s brother and another prosecutor with the district attorney’s office, made remarks later that harassed Boldware and contributed to a hostile work environment. ...

[Attorney Bill] Trantham said the county spent $250,000 defending the suit. County officials hired Dallas lawyer Thomas Brandt, who specializes in federal civil rights law, instead of using in-house lawyers. In addition to the $510,000 award from the jury, the county must pay the fees of Trantham and Chris Raesz, who also tried the case.

“I think we’re looking at fees of about $100,000 each,” he said. “This is going to be a million-dollar hit for the county.”

Ms. Boldware and her tormenters are all still employed at the DA's office, which must make for a particularly awkward dynamic with so many family members and former co-defendants working there.

MORE (June 26): Four prosecutors were fired yesterday in the wake of the jury verdict, according to the Denton Record-Chronicle:

Denton County District Attorney Paul Johnson fired four prosecutors in his office Monday after the county lost a $510,000 racial discrimination lawsuit last week in federal court.

Susan Piel, Cary Piel, John Renz and Ryan Calvert all were fired at about 11 a.m. Monday, said Jamie Beck, first assistant district attorney who acts as Johnson’s spokeswoman.

She declined to comment further on the matter.

Denton lawyer Bill Trantham, who tried the case against the county, said Monday that he thought it was politically expedient for Johnson to fire all four of the lawyers involved in the case.

Susan Piel is married to Cary Piel, Trantham said. Calvert is his brother-in-law and Renz was his partner in a felony court.

“I think it’s an earthquake up there,” he said of the district attorney’s office. “From a political standpoint, I’d rather get rid of them all than have anyone left over when re-election time came. If I’d been Paul Johnson when it first happened, I would have just fired Cary on the spot and been done with it.”

Really? The DA knew about the actions criticized in the lawsuit three years ago but is only firing them after a jury came out against him? That seems like they're not being fired for harassing a co-worker but for costing the county money. Bad optics, as they say.

Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?

Here's your chance to play oddsmaker.

A judge in Denton County says two prosecutors withheld evidence and committed prosecutorial misconduct, banning the pair from his courtroom for the offense. Reported the Denton Record-Chronicle ("Two banned from Burgess' court," April 7):

A state district judge has banned two assistant district attorneys assigned to his courtroom from returning, ruling that they committed prosecutorial misconduct and don’t have “the innate intellect of a fifth-grader.”

Bill Schultz and Forest Beadle were working as family violence prosecutors, trying Silvano Uriostegui on a charge of aggravated assault with a deadly weapon in the 158th District courtroom of Judge Steve Burgess. After Burgess’ March 2 ruling that they willfully withheld exculpatory evidence from the defense — evidence that would have helped in his defense — Schultz was moved to the district attorney’s civil division and Beadle was moved into the 16th District Court.

Both men declined comment, citing policy to refer questions to the first assistant district attorney, who acts as spokeswoman for the department.

District Attorney Paul Johnson has defended the two prosecutors, and Jamie Beck, first assistant district attorney, said they were not disciplined but rather  counseled on the law as it pertains to the sections the judge ruled they violated during that trial. She said they would be required to take remedial courses in issues surrounding exculpatory evidence.

The prosecutors did not inform defense counsel that their star eyewitness had not, as earlier represented, positively identified the defendant, her husband, instead referring to the suspect as "he or she" and declaring she never saw a face.

The Record-Chronicle adds that the situation - though not a formal grievance - has been forwarded to the state bar:

Texas Disciplinary Rules of Professional Conduct provide that such conduct as the two prosecutors were found to have committed should be reported to the disciplinary council of the State Bar of Texas. Johnson, in a three-page letter to the council, wrote that he was satisfying that requirement but that he was not submitting a grievance against [prosecutors Bill] Schultz and [Forrest] Beadle. He defended their actions, stating that they did not intentionally withhold evidence.

If the conclusion of the Record-Chronicle account accurately portrays it, Judge Burgess sounds furious over the incident:

In his ruling on the writ of habeas corpus, the judge was detailed in his criticism of the way the evidence was handled.

“My jaw dropped to the ground when Mrs. Uriostegui testified the way that she did,” Burgess said in his ruling. “I was shocked. And for the state to actually know this and not disclose it, the only good thing I can say from this miserable hearing is at least Forrest Beadle told the truth and was not evasive and was straightforward. I don’t particularly like his answers, but he at least was honest.”

Burgess apparently was referring to notes Beadle made during the hearing that were subpoenaed by Amador that Amador was making another “[expletive] Brady motion.”

Burgess said that he could not fathom how someone who had been to law school and had practiced as long as Schultz and Beadle could not know they were violating rules of exculpatory evidence.

“And how disingenuous it is to get up here and testify that you don’t think that it’s Brady that the victim can’t identify by face or by anything other than smell and a boot who the attacker is ... ,” he said. “I’m going to have to ban both Mr. Beadle and Mr. Schultz from my courtroom. They’re not allowed to appear in this courtroom until I rule otherwise.”

Burgess said that it was particularly sad that the actions of the prosecutors robbed Maria Uriostegui of justice for the injuries she suffered. He found that the prosecutors goaded the defense into entering a plea bargain to avoid an acquittal in the case.

“A woman that was knifed nine times in the gut and elsewhere doesn’t get justice because nobody can read Brady, understand Brady, or has the innate intellect of a fifth-grader,” the judge said.

See the rest of the Record-Chronicle story for more detail.

My question: Given that the only prosecutor in memory publicly sanctioned by the state bar was Terry McEachern from the infamous Tulia drug stings - and that a recent survey of prosecutor misconduct findings by Texas appellate courts found no examples resulting in public state bar discipline - what are the odds the state bar publicly sanctions either or both of these prosecutors?

For my part, even if every jot and tittle of the judge's criticism is accurate, I couldn't go higher than 5% and would have a hard time justifying that number. Terry McEachern was disciplined because in that one case lightning struck, national and even international media honed in on the tiny South Plains community, and the activities he'd concealed of his undercover officer, Tom Coleman, were too well documented to ignore (largely thanks to mi amigos Nate Blakeslee and Jeff Blackburn, to give credit where it's due). So much attention had been drawn to the case IMO that the state bar disciplinary committee felt they would discredit themselves if they didn't act. But the system shouldn't require the case to be the subject of a 60 Minutes segment or a BBC documentary before the state bar mandarins decide to rein in rogue prosecutors. As a starting point, when judges tell them prosecutorial misconduct is going on in their courtroom and the elected DA's response is to move alleged Brady violator to another court, that should send up enough red flags to warrant a fuller investigation, even if the prosecutors' boss didn't submit a formal grievance.

Did DA commit perjury to protect wife-murdering cop?

Via the DMN Investigates Blog:

Bruce Isaacks (right), as Denton County district attorney in 2004, refused to prosecute a police officer who had been indicted on a murder charge for his wife's death.

Medical authorities concluded that the woman had committed suicide, Isaacks swore then and later. The medical authorities swore that wasn't so, and after Isaacks was voted out of office, jurors finally got to hear the evidence. They convicted the cop of murder last year.

Now, finally, there's going to be an investigation of whether Isaacks committed perjury, Donna Fielder of the Denton Record-Chronicle reports today. She has dogged this story for years, with Isaacks denying wrongdoing all the while.

Donna's report made me think of a story my DMN colleague Reese Dunklin and I did in 2002. It looked at how Isaacks failed to prosecute two other well-connected men who were accused of domestic violence.

One of my favorite parts: Isaacks said he didn't prosecute one of the guys because a conviction could cost him his bail bond license. "There was going to be a disproportionate impact on that old boy," Isaacks told us. "He was going to lose his ability to earn a living."

The full story is well worth reading.