Forensic backlog at DPS due to free lunches for Lubbock, other freeloader PDs

There's no such thing as a free lunch, unless you're a police department in Texas looking for no-cost crime lab services. Then you can call DPS and by law they must provide services for free. The predictable result is a massive backlog. From the new Government Effectiveness and Efficiency Report prepared biennially by the Legislative Budget Board - the one the Lt. Governor didn't want released:

According to the Department of Public Safety, from calendar years 2010 to 2015, the crime lab’s forensic evidence backlog increased from approximately 22,000 to more than 33,000 submissions. Among respondents to a 2016 survey conducted by the Texas Center for the Judiciary, 96.2 percent indicated that the wait for lab results had led to court delays. 

The Department of Public Safety’s crime labs do not have standard procedures to ensure all forensic testing is necessary at the time testing occurs. There is also not a policy that allows the lab to halt testing determined to be unnecessary. As a result, unnecessary testing may occur, reducing resources that could be used to address backlogs. Implementing a process to systematically check the need for testing in certain circumstances could reduce crime lab workloads and enable them to operate more efficiently.

Further, "The Department of Public Safety crime labs complete all testing that has been started and do not have a policy to halt testing for certain situations, such as the requesting agency notifying the lab that testing is no longer necessary."

The caseload for drug evidence is significant, with waiting times, even nearly as long as for DNA. "DPS crime labs conducted 44,965 drug evidence tests in fiscal year 2015 with an average turnaround time of 123 days." The longest waiting time was for trace-evidence analysis, which on average takes nearly a year.

As regular Grits readers may recall, crime lab delays are a significant cause of delay in processing drug cases, causing defendants in some cases to languish in jail until results come back:

Furthermore, the nonprofit Texas Center for the Judiciary conducted a survey in January 2016 regarding sources of evidence delays that was sent to all active district and county court at law trial judges. The survey asked the respondents to identify sources of delay. Of the 130 individuals who responded to this question, 125 respondents identified crime lab results as a source of delay. Delays can result in issues including increased jail costs, attorney fees, and impediments for expert witnesses. DPS indicated delayed forensic testing results can affect plea agreements. For instance, local jurisdictions may not offer plea agreements in drug cases until lab results are received.

Some of this work turns out to be unnecessary:

In 2015, the DPS crime lab in Midland reduced its drug backlog 66.0 percent. The lab achieved this reduction by closing 1,641 cases without analysis as a result of communicating with district attorneys to determine whether testing was still required. DPS also reduced the drug backlog by 20.0 percent by working with local stakeholders who used the five labs with the majority of the statewide backlog to ensure forensic testing of the cases were still needed for prosecution.

Finally, this writer was unaware of the extent to which DPS crime lab expenditures subsidize Lubbock PD and a few other high-use jurisdictions:

In calendar years 2013 and 2014, DPS received an average of 87,642 testing requests each year from 2,310 law enforcement agencies. Approximately 22,000 of all testing requests in these years were from 25 users of the DPS crime lab, and the Lubbock Police Department (LPD) requested more testing from the DPS lab than any other agency. DPS reports that the criminal justice system requires a quicker response for many cases than the DPS crime lab can provide. LPD reports that it has had concerns with the timeliness of DNA and trace evidence testing for forensic evidence submission to the DPS crime lab. LPD reports an average wait time of two to three months for trace evidence and three to six months for DNA analysis. 

DPS' main problem is that it is not allowed to charge users a fee so departments who want to freeload off the state send their cases there instead of to a private lab or hiring their own experts. If the state created a reasonable fee structure charging market rates for testing, it would solve the problem entirely. It's one thing for the DPS to run crime labs for its own enforcement purposes and to let locals process cases there. But there's no good reason for the state to give everyone a freebie.

RELATED: DPS reaching limits to unsustainable crime lab model: Tells agencies to reduce DNA, drug testing requests.

Are MEs fudging cause of death for Texas prisoners?

If one person per day is dying in custody of state and local law enforcement in Texas, the next obvious question is, "What do those cases look like?"

Nicole Brambila at the Lubbock Avalanche-Journal over the weekend (Oct. 18) offered up a portrait of local death in custody cases, basing the story on the list compiled at the Attorney General referenced in this recent Grits post. Well done. This same type story can and should be localized by media in other jurisdictions around the state.

The most dramatic element in the article was the saga of Benjamin McCoin, whose death at the Montford psychiatric unit occurred due to injuries sustained while being restrained by guards. The Tarrant medical examiner called the death an accident; the Lubbock medical examiner labeled it a "homicide." TDCJ spokesflak Jason Clark understatedly told the paper, “It’s certainly a unique situation where you have differing causes of death between two medical examiners.” Indeed, isn't it?

Lubbock County Medical Examiner Sridhar Natarajan has reviewed four death cases from Montford in the past year. "In two of the cases the state said were natural deaths — including McCoin’s — Natarajan has changed the cause, out of concern," reported Brambila. Here are more details on the other case:

The second involved 27-year-old Marsele Dauntri Thompson, who in January was found unresponsive in his cell. Tasha Z. Greenberg, M.D., in Tarrant County reported finding “no evidence of trauma or foul play.”

And yet, the autopsy records evidence of a contusion on Thompson’s forehead in the process of healing, as well as abrasions around his eyes and and additional contusions on his arm and thigh.

Correctional officers were supposed to be conducting 15-minute checks on Thompson, a schizophrenic on water restriction for his personal safety. However, when officers discovered

Thompson sitting nude in his cell with his legs crossed, his body was cold.

Generally, a body is stiff and warm at two hours. It’s stiff and cool between four and six hours.

“When the body was found it was cold, in rigor,” Nataranjan said. “That’s not going to happen within a 15-minute check. It doesn’t match with 15-minute checks.”

Natarajan reported the death undetermined.

“If I’m not able to explain it, I’m not going to give a cause of death,” Nataranjan said.

The Texas Office of Inspector General is also investigating Thompson’s death, Clark said.

Excellent reporting. Nice to see local journalists following up on those death-in-custody reports. There's no way such stories get reported unless somebody's doing the grunt-work to follow up on the details of individual cases in the AG report.

These sorts of regional and local stories are low hanging fruit for reporters elsewhere, it should be emphasized. That AG death-in-custody list represents a huge cache of under-utilized story leads that typically aren't followed by local reporters because they require work and the government hasn't handed them the story on a platter. This article shows what's possible with just a little elbow grease. You never know what you'll find until you look. One hopes others follow suit.

Judge: Driver Responsibility surcharge unfair, 'unconstitutional'

Another judge critical of Texas' Driver Responsibility surcharge, via a Lubbock TV station:

Lubbock County Justice of the Peace Jim Hansen is one of the many Texas judges working to get this law abolished.

"Because what a surcharge represents, it's double jeopardy and it's unconstitutional. You are being punished over and over and over again for the same one offense," Hansen said.

Surcharges are racked up based on convictions. Such as a DWI, or driving without valid insurance or a drivers license.

"This has created a whole new criminal class of citizens in Lubbock County," Hansen said. "I would estimate we've got about 15,000 people driving today with their drivers license suspended because of the surcharge program. And many, or most, of those don't even know that they're in this criminal class." ...

"Let me put it this way, I despise red light cameras, and I put surcharges in the same category. It's a money scam, in my opinion, even though it funds a worthy cause," Hansen said.

RELATED:
Radio discussion of Driver Responsibility surcharge
Lege ponders effect of 'Driver Responsibility' surcharge on DWI convictions

Woman arrested for asking to see non-existent warrant to arrest 11-year old

Fox34 in Lubbock reported last week (6/12) on an extraordinary case of a mother in Slaton who was allegedly arrested for asking to see an arrest warrant before she let police cart away her 11-year old son. It turned out, no warrant existed so they arrested her instead. Reporter Bailey Miller's story opened:

Slaton police came to this woman's house, who wishes to remain anonymous, to arrest her son. But by asking one simple question, she found herself behind bars instead.

"I told him, 'I will release my son to you upon viewing those orders.' Those were exactly my words," The complainant said. "He said, 'This is how you want to play?' He took two steps back, turned around to the officer and said, 'Take her.' They turned me around, handcuffed me, and took me in."

The complainant said she was aware police would be coming to apprehend her 11-year-old son based on a criminal complaint, and that she just wanted to see the warrant. As it turns out, that warrant didn't exist. She spent the night in jail while her son was left at home. 

Jonathon Turley adds:

What is most remarkable to this story is that the family’s lawyer told the media that the Slaton Police Department was only willing to apologize if the family waived any right to sue it for the unlawful and abusive arrest. That demand alone, if true, should result in the immediate termination of the police chief as well as the disciplining of any prosecutor who conveyed the demand in my view. Citizens should not have to trade away legal rights to receive an apology for allegedly abusive police conduct.

Quite a tale of tuff-guy decision making gone awry. The Slaton police department is small but has recently suffered a rocky history. An officer was convicted in 2010 of pocketing cash seized in the field as evidence. Another resigned in 2011 amidst a mysterious Homeland Security investigation in which the department's computers were seized. The same year, another Slaton officer was indicted by the feds on child pornography charges and sentenced to 70 months. Earlier this year they arrested a gunshot victim over traffic warrants. It's always something with that crew! This episode may end up costing the town more than an apology.

Justifying tax increases in Lubbock: Better to discuss civil war, UN takeover than predictable jail boondoggle

I'd heretofore ignored the asinine assertions from Lubbock County Judge Tom Head regarding the possibility of President Obama's reelection launching a civil war and spurring a United Nations takeover of Lubbock County, but a couple of recent commenters pointed out the real reason for such hyperbolic rhetoric: Masking the need to spend more covering the county's speculative county jail expansion, which was supposed to bring in enough additional revenue to let the county reduce taxes. Here's a summary from the Austin Statesman of Judge Head's earlier public reasoning for Lubbock's latest tax hike:

If President Barack Obama is re-elected in November, Head declared, "I'm thinking the worst. Civil unrest, civil disobedience, civil war maybe." The tax increase is necessary to fund contingency plans, the judge continued. Obama, Head said, will turn the U.S. over to the U.N. Resistance will naturally follow. "And we're not just talking a few riots here and demonstrations, we're talking Lexington, Concord, take up arms and get rid of the guy."

Nutty as a Corsicana fruit cake, that one. The comments went viral nationally, adding to our state's reputation as Wingnut Central. The Lubbock Avalanche Journal's editorial board, though, supplied a bit of lipstick for this pig over the weekend, and in doing so identified the real reasons for Lubbock's proposed tax increase:

Considering the proposed Lubbock County tax increase, it’s unfortunate County Judge Tom Head cast a cloud over it with his strange comments about President Obama bringing in United Nations troops to quell civil strife if he’s reelected.

The proposed increase would fund public safety matters involving the sheriff’s office and criminal district attorney’s office.

The tax increase would raise the county taxes about $20.64 for a $100,000 home.

Criminal District Attorney Matt Powell’s office would receive about $200,000, which would be used to buy two vehicles and pay raises for prosecutors.

Powell said he has lost 20 prosecutors — from a staff of 35 — in the last three years. Some went to private practice, but about half went to other prosecutor offices where they could make more money.

Powell wants more to stay in Lubbock and we all want the most experienced prosecutors in our courtrooms.

Sheriff Kelly Rowe’s office would receive about $890,000 if the tax increase passes. He would add seven new deputy positions and vehicles and would increase starting salaries, which will help him attract and retain more qualified employees.

Here's the real deal: Anyone who could perform basic arithmetic has known for years that Lubbock's speculative jail expansion would require significant tax hikes, a situation that was exacerbated when the county couldn't attract enough outside inmate contracts to fill it. Dave Mann at the Texas Observer called the county judge out on this two-faced diversionary tactic:

The sheriff’s department has asked for funding increases in recent years. The reason it needs more money? Mismanagement by Head and other county officials. (For all you out-of-staters: In Texas, the “county judge” is actually an elected administrator, who along with the other county commissioners, oversees county government.)

In 2011, Lubbock County opened a massive, 1,500-bed $100 million county jail. The county didn’t need a jail nearly that big, but Head and other officials hoped to lease out jail space to the federal government or other outside entities that needed to stash prisoners somewhere.

This is a racket that many communities in Texas have tried with diminishing returns. (The criminal justice blog Grits for Breakfast has excellent coverage of the issue here and here.) Lubbock County missed the boom in immigrant detention, and now the big expensive jail sits only 70-percent full, according to the Lubbock Avalanche-Journal.

Meanwhile the staffing costs of operating the massive jail are draining sheriff’s department resources, which has led to call response times going up and some cases going uninvestigated.

As the Avalanche-Journal reported last year, “The almost $100 million county jail dominated county budgets even before voters approved $82 million for its construction in 2002. Call times have languished and cases gone without investigation as spending on the roughly 1,500-inmate facility crowded out new deputies and other officers for the growing county.”

The county instituted property tax increases to help pay for the jail, but it’s still been a disaster that’s straining county resources.

All that eventually comes back to Tom Head, who’s been county judge since 1999.

So the situation is by no means new and certainly has nothing to do with Barack Obama: The Avalanche-Journal reported in 2010 that "Construction of the more than 1,500-bed, high-tech jail facility east of the airport had driven the bulk of six tax increases over the past 10 years." Of course, that same article quoted a county commissioner predicting that "Millions of dollars the jail saved once opened would go to buying down the tax rate as much as possible," but now that the jail is open, they're still raising taxes. Is anyone really surprised?

See prior, related Grits posts:

• Lubbock can't find contract inmates to fill overbuilt jail
• Speculative Lubbock jail opens with no prisoners to fill it
• Lubbock taxpayers eating costs for overbuilt jail
• Jail costs driving tax hikes in Lubbock 
• NPR investigates Lubbock's bail system: Should taxpayers foot $7k incarceration bill for stealing $30 worth of blankets?

Posthumous exoneree Tim Cole's memory honored in Lubbock

In Lubbock, the city has approved a memorial for Timothy Cole, who died in prison after being falsely convicted of rape and was later posthumously exonerated. Reported the Lubbock Avalanche Journal:

A bronze relief sculpture and granite marker will pay permanent tribute to Timothy Cole, just blocks away from the Texas Tech bar district where he was arrested for a crime he didn’t commit.
His brother, Cory Sessions, helped sway the Lubbock City Council to support the memorial to his brother, who died imprisoned in 1999 after being wrongfully convicted in the 1986 sexual assault of a fellow Tech student.

“Tim may be remembered for things that happened after his life, but we remember him for what happened during his life,” Sessions said Thursday morning at the council meeting. “The most important part of his headstone is the dash, and that’s what we remember Tim by.”

The council approved a renewed proposal by Councilman Todd Klein to honor Cole with a memorial on city property to be designated as a park at 19th Street and University Avenue.

Klein designed the proposal with the help of attorney Kevin Glasheen, who has represented several wrongfully convicted people seeking compensation, including the Cole family.

Glasheen said his firm would pay the estimated $25,000 for the monument, a granite marker with a bronze relief sculpture of Cole and text similar or identical to the text on a state historical marker located near Cole’s Fort Worth grave site.

He praised Cole for his demonstration of character throughout his trial and imprisonment, recalling how Cole would not admit guilt even if it meant he had a chance for parole.

“That kind of character and integrity is worthy of honor,” Glasheen said.

Lubbock can't find contract inmates to fill overbuilt jail

The Lubbock County Jail continues to lose money after building more space than they needed hoping to secure contracts for housing prisoners from the feds and other jurisdictions. Reported Fox34 News:

Upon its completion, the Lubbock County Detention Center was estimated to be able to house 200 federal inmates in addition to its regular inmate population. With federal inmates, comes federal dollars.

However, according to Lubbock County Sheriff Kelly Rowe, the current average population of federal inmates at the detention center is only 70.

"It is something that does help offset the general fund budget when we do have any additional fund revenue coming in," Rowe said.

County Commissioner Patti Jones said that does pose a small problem because the number of federal inmates was expected to be much higher last year.

"So yea, when the number is down like this it does affect us on our budget. We still try to budget pretty conservative, even at that point, but again, until we see what the final numbers end up being at the end of the year, we very much so could see a shortfall in what we had budgeted for 2011.

The truth is officials are understating what a boondoggle the new jail turned out to be. When Lubbock officials took the project to voters for approval, they suggested that the jail would pay for itself by leasing excess space to the feds, the state and other counties, as well  as leasing out beds in the old jail downtown. When the new jail opened, though, there weren't any contracts available for the extra beds and the downtown facility was closed. Clearly counties that hoped to profiteer from housing contract inmates miscalculated. The bubble has burst and there's simply not enough demand from the feds or anybody else to fill all the overbuilt jails around the state.

See related Grits posts:

• Private prison bubble bursting; empty, speculative jails in Texas
• Speculative Lubbock jail opens with no prisoners to fill it
• Lubbock taxpayers eating costs for overbuilt jail
• Jail costs driving tax hikes in Lubbock 
• NPR investigates Lubbock's bail system: Should taxpayers foot $7k incarceration bill for stealing $30 worth of blankets?

Exonerees not eligible under compensation statute face uphill climb in civil court

A jury ruled against the plaintiffs, two Mexican nationals, in a federal civil rights suit out of Lubbock (discussed earlier in this Grits post) after they'd served 12 years in prison based on erroneous convictions overturned because of ineffective assistance of counsel. Attorneys for the state sounded exultant:

Karen Matlock, with the Attorney General's office, called it "a great day".

"We are glad that this trial is finally concluded and has come to a very happy ending," Matlock said. "We are very happy that our system has allowed Ranger Sal Abreo of the Texas Rangers to clear his name."

Matlock also released a single quote on behalf of Mr. Abreo

"Men of integrity when attacked will not respond but will wait patiently until time proves him right," Matlock said.

Attorneys for the plaintiffs said they respect the jury's verdict and that their clients are ready to move on.

"We are grateful that they are free from prison," Fernando Bustos, the plaintiffs' attorney, said. "We are disappointed with the jury's decision but we certainly respect it and we are grateful that these men can live the rest of their lives as free men."

Bustos said they will not seek further action in the case.

It's probably a bit overstated, though, to say that Ranger Abreo was "proven right" since we're talking about a pair of false convictions. If he was "right" the plaintiffs would still be in prison, so the state in these cases didn't get it right at all! Plus, it's difficult ignore Abreo's unorthodox investigation methods, or to un-ring the bell when a memo was introduced in court from the Lamb County District Attorney calling Abreo “the worst Texas Ranger you will ever meet.” That's all just out there now, caveats and post hoc explanations notwithstanding. Indeed, prosecutors had to call in Abreo's boss to testify that the arrests in question were valid "despite mistakes made by lead investigator Sal Abreo."

Williamson County DA John Bradley, of all people, was called as an expert witness (@ $175 per hour) to testify why the DA claiming the defendants committed crimes in the press when he can't prove it in court wasn't actually defamatory, leading me to wonder: Since when is Bradley an expert on libel and slander law? The only reason I can think of that he'd be considered an "expert" on that topic is because he routinely engages in the same behavior!

Bottom line, this case demonstrates the flip side to the compensation debate going on in Dallas about whether lawyers should be paid for filing civil suits on behalf of people who've been falsely convicted. When an exoneree chooses to sue rather than accept state compensation - or when, as in this case or with Anthony Graves (before recent legislation), defendants are freed on any procedural grounds besides a habeas writ finding "actual innocence" - such litigation is never a slam dunk, particularly in the US 5th Circuit where Texas resides. There is no Texas civil rights statute, so the only option for pursuing such cases is in federal court, where a defendant must prove a "pattern and practice" of misconduct, not just that some wrong was done to them in particular. Even then, it's such an extraordinarily high bar to breach the various court-created immunities on police and prosecutor misconduct that even deserving plaintiffs, as a practical matter, are likely to lose.

DNA doesn't exist in most cases, leaving folks like these two plaintiffs in a position where, to secure their freedom, they must prove a negative - that they didn't do something. (The Todd Willingham case is a great example of this conundrum - the evidence used to convict him was a bunch of phony, unscientific hokum, but since even a stopped clock is right twice a day it's impossible to say investigators weren't accidentally right despite the litany of error presented as fact in court.) Then, for exonerees who aren't eligible under the (relatively narrow) state compensation statute, to win compensation in civil court, plaintiffs must basically prove not just that law enforcement pro-actively framed them but that such behavior was institutionally tolerated - an even higher bar than merely proving one's innocence. Whenever attorneys take such cases on a contingency basis, there's a very real chance, as in this instance, that they'll sink a tremendous amount of time and resources into a case and still wind up with nothing.

Despite exultations from the Attorney General, this was hardly a "great day" for anybody except the county's insurance carrier who would have been on the hook if they'd lost. Police errors and shoddy tactics were exposed and two men who are very likely innocent will receive no redress for valid grievances. That's a pretty shaky platform from which to gloat to the media that somehow the system works.

Wanna buy a prison? Private prison market bursting leaves town desperate for buyers

One named after a former Texas Speaker of the House, no less? At 11 a.m. today you get your chance. Reports AP:

A prison that a Texas High Plains town hoped would provide a bonanza but instead went broke is going on the auction block.

Littlefield is putting the Bill Clayton Detention Center up for auction Thursday with a $5 million minimum opening bid. Tulsa, Okla.-based Williams & Williams Worldwide Real Estate Auction is handling the bidding. Its throwing in the furniture, linen, computers, kitchen supplies and other equipment contained in the 30-acre complex 36 miles northwest of Lubbock.

Littlefield built the 373-bed, medium-security prison with proceeds from an $11 million bond issue and signed The GEO Group to run it. The hope was for states experiencing prison overcrowding to pay to house its inmates there.

Instead, escapes, corruption and living conditions prompted states to withdraw their inmates, leaving an empty prison.

In a story behind their paywall, the Dallas News reported that there were at least six interested buyers, including private prison firms and "other municipalities needing more space for inmates." (We may safely assume Lubbock isn't among them, since they've got a near-empty jail competing with the Littlefield facility.) Go here to bid or watch the auction online.

I'm not sure I've ever heard of an actual auction for a jail or prison unit, but this is the inevitable, last-ditch outcome for counties that speculatively built extra jail capacity (or in this case a prison unit on spec), but couldn't lease out the beds once construction was complete. As Grits has reported in the past, a similar fiscal drama is playing out with the "Doomsday Deal" in McLennan County and a long list of empty, speculative jails in Texas, so unless there's a new source of prisoners out there - private prison firms are banking on immigration detention - this may not be the last Texas jail or prison unit we see auctioned off like some defaulted property on the steps of the county courthouse.

RELATED: From the American Independent, "Texas town pins hope on prison auction Thursday, years after private operator left."

MORE: The prison went for $6 million to an as-yet undisclosed bidder. The town still owed $9 million on the prison, so locals will have to eat the difference.

There really is no such thing as a free lunch

Not in Lubbock, anyway. At least if you can't afford a commercial kitchen.

Damning testimony at TYC sex abuse trial

Given what's been coming out in the John Paul Hernandez trial, I'm fairly shocked that the former Texas Youth Commission administrator didn't take a plea regarding the sex-abuse allegations against him. (See here, here, and here.) Perhaps he was overconfident that the local District Attorney and judge in Ward County where the offenses were committed would protect him, and indeed they did for many years (as is fairly common, sadly, though after TYC's 2009 Sunset bill, going forward, crimes by TYC staff can be prosecuted in Travis County if locals won't pursue them). Hernandez's case ultimately had to be moved to Hub City to get a trial date set.

Two Lubbockites who've attended parts of the trial both told me they were horrified at what they heard: One told me he was "disgusted," the other said he wanted to take a shower when he left. Though the delays have been unconscionable, I'm glad we're seeing the denouement of this sordid tale, a dark cloud which has hung over the agency for the past four years. Though this trial will finish the off legal aspects, the policy ramifications for the agency from this scandal are still reverberating, up to and including a recent recommendation by the Sunset Commission to abolish TYC and merge youth prisons with the Juvenile Probation Commission.

Tech students teaching art in Lubbock jail

The Lubbock Avalanche Journal reports on a creative anti-recidivism approach at their local county jail:

A county jail would not seem a likely place to teach art classes, but a new program where Texas Tech art students are working with Lubbock County jail inmates on art projects is proving to be good for both the inmates and the Tech students.

It gives the inmates a break in their normal routine, and it gives the art students a chance to help brighten lives while learning insights about the lives of others. One inmate commented the art classes help with depression, and another said the classes help inmates deal with anger.

A pilot program introduced by Sheriff Kelly Rowe in which inmates with good conduct get to participate in classes — ones that also include parenting and anger management — is showing encouraging numbers at reducing recidivism, which is the tendency of jail inmates to repeat their crimes and return to jail.

Tech art teacher Dennis Fehr’s students who became temporary art teachers fit right in. It’s a promising beginning.

Whenever I see local officials embracing such ideas, I'm always hopeful they're actually tracking outcomes for participating offenders to determine (based on evidence, as opposed to feel-good bromides) whether it's actually having a tangible impact. I also imagine the tactic might be enhanced if there were a reentry component, encouraging ex-inmates to embrace artistic pastimes when they get out. It's easy to pooh-pooh such projects, but if they track recidivism data and it has a significant impact, then it's well worth enduring accusations that the Sheriff has embraced a "hug a thug" approach.

Criminals in Lubbock pause for Tech football games

Crime in Lubbock declines 14% when Texas Tech plays football, reports the Lubbock Avalanche-Journal. Further, for the period examined, "Tech’s 2008 upset of then-No. 1 Texas correlated with the sharpest drop in calls — more than 25 percent fewer calls than the average for the 7 to 11 p.m. period."

I'll bet there wasn't a lot of crime in College Station last night.

Lubbock considers in-house competency restoration for mentally ill defendants

Defendants deemed incompetent to stand trial because of mental illness typically must wait for beds in state hospitals to open up before they can be declared competent to enter a plea, even for petty misdemeanors. Now Lubbock County may join the ranks of jurisdictions performing competency restoration in the jail instead of sending them all to state hospitals, where waiting lists are typically months long. Reports the Lubbock Avalanche Journal ("Lubbock County to consider funding mental health services in jail," Nov. 7):

The services for severely mentally ill inmates would include intervention, rehabilitation, competency restoration and education and are meant to reduce mentally ill inmates’ length of stay behind bars and reduce the probability they will return.

Officials hope the $260,000-per-year program will reduce the amount of time mentally ill defendants spend in jail by providing services — namely competency restoration — the county isn’t currently equipped to provide.

“The whole thing is to shorten the length of stay they have and reduce recidivism,” said Cathy Pope, chief executive officer of Lubbock MHMR.

She said the program that would be implemented is based on existing best practices programs around the country.

A psychiatrist would spend three or four hours per week at the jail and the contract would fund three mental health workers in the Special Needs Unit, which is scheduled to open as soon as mental health positions are funded.

Although the workers perform other functions, such as cognitive rehabilitation, the primary focus is on competency restoration, Pope said. That means psychiatrically stabilizing the individuals and then getting them to a point where they can assist in their own legal defense.

Restoration is currently done locally at MHMR’s Sunrise Canyon and also in Vernon at North Texas State Hospital. But limited beds at the local and regional level have forced Lubbock County inmates to sit in jail, oftentimes for years, with no conviction and no treatment.

One county inmate allegedly spent seven years in Lubbock's jail awaiting trial because of a lack of competency restoration services, which is far and away the longest I've ever heard of anybody waiting for a forensic bed at Texas state mental hospitals.

Cuts to state hospitals - where half of all beds are allocated for competency restoration - will inevitably shift costs to county jails which must incarcerate defendants while they wait for these services. So Lubbock is getting ahead of the curve by installing these services now, along with their new Special Needs Defender office which is also focused on mentally ill defendants. Other counties will end up following Lubbock's lead whether they like it or not: It's too expensive to keep pretrial defendants incarcerated for months or years on end - sometimes for petty misdemeanors - waiting on the state to provide mandatory services.

Assuming they pull the trigger on the new arrangement, the Sheriff and commissioners court in Lubbock deserve tremendous credit for going this route. Other counties would do well to follow suit now before budget cuts at the Legislature next year strand even greater numbers of mentally ill inmates in local jails.

See prior, related Grits posts:

• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Competency restoration often best performed on outpatient basis
• Cutting state psych hospital budgets could backfire
• Geo Group secretly snagged forensic psych hospital contract in budget conference committee
• Outpatient centers better solutions than jail for competency restoration 
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails
• When I was sick, did you imprison me?

'Special Needs Defender' in Lubbock handling mentally ill misdemeanants

In Lubbock, the Avalanche Journal had a story yesterday about the county's Special Needs Defender Office created last year, a public/private hybrid system described thusly ("New screening, special defender's office helps Lubbock County with mentally ill"):

while county officials agree more changes are necessary to ensure mentally ill defendants don’t languish in jail, improvements such as specialized screening at the jail and cooperation between the Lubbock Special Needs Defender’s Office, defense attorneys and the probation office have streamlined identifying mentally ill defendants and getting them through the system.

The Special Needs Defender’s Office provides private appointed legal representation, as well as specialized one-on-one care outside the jail to help ensure defendants make their court dates and don’t end up back in jail.

The office is a synthesis of a board, director, 21 attorneys on an appointment wheel and two social workers. The program is the first of its kind in Texas and works with defendants from arrest through disposition.

Since November 2009, the office has received 367 qualifying referrals out of 1,777 total referrals.

Of those 367, 208 were accepted, according to data from the defender’s office.

The office represents defendants who are charged with felonies or Class A or B misdemeanors, are indigent and have a qualifying mental health illness or condition like schizophrenia, bipolar disorder or major depressive disorder.

County officials began looking into establishing a program to represent defendants with special needs when they realized the people spending the longest amount of time in jail were individuals who had mental health issues.

RELATED: From Simple Justice.

Speculative Lubbock jail opens with no prisoners to fill it

On Wednesday, Lubbock County will celebrate the opening of a new 1,500 bed jail with a ribbon cutting, but county taxpayers might want to show up and turn the event into a good old fashioned tarring and feathering of all the elected officials responsible for this white elephant. (It may be the last time they can all be found in one place!) The jail has already been responsible for a significant tax hike, and if plans to fill extra beds with federal inmates don't come through - as seems likely given the recent experience in other counties - their taxes will soon rise even more because of this boondoggle.

Stories in the Lubbock paper ("A decade in the works, Lubbock County Jail is ready for business," July 11) are filled with propitious appraisals, like the comment from rookie Sheriff Kelly Rowe who told the Avalanche Journal, “Ultimately, this building is finished out just like we need it.” Such rosy assessments will continue right up until it's time to start paying off bondholders, but the unstated truth is that Lubbock doesn't need and can't afford 1,500 extra beds - staffing costs alone will eat them alive. Lubbock is presently paying for 300 jail beds in neighboring counties, but in reality they're also wasting a lot of money on unnecessary incarceration. They could have solved their relatively minimalist real-world jail problems either by expanding diversion programming or with a modest, less expensive expansion of existing facilities.

Instead, like several other Texas counties, Lubbock took a sucker bet that if they used county bonding authority to construct twice as much jail as they needed, the incarceration boom at state prisons and federal immigration detention would inevitably fill up as many extra beds as they could build. The pitch is always that contracted beds will turn a profit, making the jail "free." Lubbock taxpayers are being told that after county prisoners move in, the Sheriff can fill the "remaining beds with federal prisoners, at a profit to the county." In Waco/McLennan County, a similar financing structure has been referred to as a "doomsday deal" for the taxpayers.

Naturally, Lubbock's jail faced years-long construction delays, came in far above budget and has already once had to go back to the county for extra money. Since that time, contract detention trends have changed significantly. State and county jail populations declined for the first time in years in 2009, and the economic slump radically reduced the amount of day-to-day illegal immigration. As a result, the Texas Department of Criminal Justice ended its contracts with Texas counties, and federal Immigration and Customs Enforcement has plenty of empty beds available through contractors they already work with.

In other words, Lubbock taxpayers bought a pig in a poke. Just as in Waco, there aren't hundreds of federal prisoners waiting to fill those empty beds, and there's lots of competition for the contracts that are out there. So taxpayers, not "profits," will inevitably pay off the bonds when the roseate predictions and the politicians who made them are all gone and there's nothing left but paying the tab for a jail Lubbock didn't need.

See related Grits posts:

• Lubbock taxpayers eating costs for overbuilt jail
• Jail costs driving tax hikes in Lubbock 
• NPR investigates Lubbock's bail system: Should taxpayers foot $7k incarceration bill for stealing $30 worth of blankets?

No one could ever be convicted based on false eyewitness testimony in Lubbock, except for those who are

The Lubbock Police Department thinks cases like Timothy Cole's false identification that led to his wrongful conviction and death in prison don't imply the department needs to change their policies, reports the Lubbock Avalanche Journal ("Experts question LPD's new eyewitness process," June 20):

The department resisted what a spokesman called "knee-jerk reactions" to exonerations and new research that changed laws in three states and eyewitness procedures in at least five major departments including Dallas.

Capt. Greg Stevens said in a recent interview current procedures would make impossible a repeat of the series of errors that produced cases such as that of Tim Cole, Texas' first posthumous pardon recipient, who died innocent in prison serving a Lubbock sentence based heavily on the misidentification of a rape victim ...

"Not ever would that one piece of evidence be used to even, even substantiate a case against somebody," Stevens said. "It would have to be corroborated with more evidence, more information."

But a life sentence reversed by the Seventh Court of Appeals of Texas in 2008 - more than 20 years after the Cole investigation and several years after changes Stevens described - indicated eyewitness identification could make up the bulk of a case.

See the rest of the lengthy article by Elliot Blackburn for details of the overturned conviction. It's hard to find credible LPD's claims that eyewitness testimony would never be used by itself to convict. After all, the law doesn't require corroboration, regrettably, and neither did Lubbock police and prosecutors as recently as 2008. In reality, unless and until the law corroboration for eyewitnesses (at least, for those who previously didn't know the suspect), neither will law enforcement. And clearly departments like Lubbock won't change their policies until they're forced to do so, either. It's rather silly to expect anyone to believe otherwise. Until then, according to eyewitness ID expert Gary Wells:

"LPD's procedures are woefully out of date and do not at all look like those of a police department that has taken this problem seriously," Wells wrote in an e-mailed response to questions. "They have seemingly ignored the science on this as well as the recommendations of the Department of Justice and virtually every task force in the country that has delved into this issue."

Regular readers know that legislation to require updated eyewitness ID policies appeared to be on the fast track for passage in 2009 then died in the end-of-session meltdown over Voter ID. Since then, most Texas departments have failed to change policies on their own steam, so expect this subject to come up again in 2011 at the Lege, whether Lubbock PD is ready to change or not.

Issues surrounding Lubbock case could fill a law school seminar

Knowing there were implications regarding federal sentencing litigation over the last few years, I forwarded Doug Berman at Sentencing Law & Policy a link to a remarkable Lubbock case where a jury yesterday sentenced a defendant to life for assault on an elderly man, based largely on alleged crimes raised in the punishment phase (including child molestation) for which he'd never been found guilty. Berman's take:

This little story has so many interesting elements, I could imagine structuring an entire seminar focused on the question about whether this case vindicates or eviscerates the constitutional principles developed in Apprendi and Blakely.

If we think the most important constitutional principles of Apprendi and Blakely concern ensuring that a jury of peers, rather than just an "elite" judge, be involved in determining sentencing outcomes, then one might conclude that these Sixth Amendment interests were vindicated in this case. But I tend to read Blakely and especially Apprendi as expressing concerns about sentences being increased based on facts not found by traditional due process standards.

I suspect that at least some members of the Apprendi and Blakely majorities would be troubled by how Prieto got a life sentence. Moreover, I suspect even some members of the Apprendi and Blakely dissents might be a bit worried as to whether Fifth Amendment due process interests were fully served here (especially if Prieto did not get advance notice that his sentencing on the aggravated robbery conviction was going to be a essentially a trial and sentencing on his daughter's allegations of rape). And, of course, three members (and soon to be four) members of the current Supreme Court were not Justices at the time of Apprendi and Blakely and thus we can only speculate about what they may think about how Prieto got a life sentence here.

Capital public defender office may go statewide

There could be big changes coming on the capital defense front across Texas, according to a story out of the Lubbock Avalanche Journal last month ("Defender office could see expansion," April 27). County Commissioners in Hub City:

submitted an application for a $7.65 million grant from the Texas Task Force on Indigent Defense to greatly increase the scope of the West Texas Regional Public Defender for Capital Cases.

If approved, the office that has already saved member counties in West Texas an estimated $637,000 in its two-year existence would expand drastically and become responsible for indigent capital defense statewide.

"From a nationwide perspective, it really elevates Texas' standards to show Texas is willing to provide the best possible defense they can for individuals charged with capital murder and willing to take whatever steps that requires to make sure that happens," said David Slayton, director of court administration for Lubbock County.

Slayton said the expansion would be good for Lubbock County because, as host county, it would be spearheading the state's indigent capital defense initiative.

The grant for the Public Defender for Capital Cases would fund defense for 240 of Texas' 254 counties. That's every county with a population of less than 300,000.

The office would remain headquartered in Lubbock, but would have 10 satellite offices and include a chief public defender, assistant chief public defender, 29 attorneys, 16 investigators, 23 mitigation specialists and 18 legal secretaries.

"One of the benefits I see is we'll have some consistency from office to office around the state," said Chief Public Defender Jack Stoffregen.

Stoffregen would be responsible for increasing the staff from 15 to 90 people.

The West Texas Regional Public Defender for Capital Cases currently serves 71 counties in an 85-county region.

Counties participating in the capital defender office essentially are purchasing "murder insurance," which defrays high, one-time costs for capital murder cases that can nearly bankrupt small counties. Hardly anybody who can afford to hire their own lawyer is ever indicted for capital murder, so in most counties this office would handle virtually all death penalty cases, as a practical matter.

Given Texas' historic national leadership among states seeking executions, the capital defender office is an unique and remarkable cooperative development. I've heard only a few opinions and have no direct knowledge about the quality of representation provided, but it's a fascinating model that (apparently) soon most counties in the state may embrace.

NPR investigates Lubbock bail system: Should taxpayers foot a $7K incarceration bill for stealing $30 worth of blankets?

About half a dozen readers this morning fowarded me the link to this excellent piece from National Public Radio titled "Bail Burden Keeps US Jails Stuffed with Inmates," which features the Lubbock County Jail as its prime example. The story opens by describing the case of Leslie Chew, a homeless man arrested for stealing four blankets worth $30 from a grocery store to stay warm while he was living in his station wagon last winter. At the time the reporter spoke to him last August, Lubbock taxpayers had spent $7,068 to incarcerate Mr. Chew because he could not make bail.

NPR also documents the overarching (and improper?) influence bail bondsmen appear to have over pretrial release decisions in Lubbock County, as evidenced by this notable excerpt:

There are about a dozen bail bond companies in Lubbock, serving a rather small population of 250,000. [Local bail bondsman Ken] Herzog says it's a cutthroat business that leaves no room for even a modest pretrial release program. As an example, he describes a time he was working to make bond for an inmate. A clerk at the courthouse told him that the inmate had been interviewed by pretrial release program workers who were working to get him out of jail.

"I said, 'Oh no, they ain't,' " Herzog says he told the clerk. "So I went to the judge that signed the motion for pretrial and told her what was up. They had no business even talking to this person. They pulled their bond, and I got the person out of jail."

I ask him if he is talking about Henderson from Lubbock's pretrial release office. "If he gets in my business, I told him, 'I do this for a living,' " Herzog says. "I said, 'You don't do that. We set this thing up.' I said 'I'll work with you any way I can, but you're not going to get in my business.' Well, he backed off."

It's unlikely Henderson had much choice. Henderson works for county officials. And county officials are elected.

"We take care of the ones who take care of us," Herzog says. "We don't want to pay anybody off, per se. We just want to support the people who are trying to help our business." ...

According to Lubbock campaign records, bondsmen make frequent donations to elected officials. Indigent jail inmates do not.

I wonder how common is such ex parte contact with judges by bail bondsmen in other counties? I've been covering these issues for a while and not much surprises me anymore, but I had no idea that criminal court judges allowed bondsmen (read: campaign contributors) to approach them ex parte on an individual case to keep a defendant from being processed by the county pretrial release office! I'm not an attorney and I can't say offhand if that's legally permissible, but it sure doesn't pass the smell test.

It also fascinated me to learn that the Lubbock County Jail charges the county pretrial services office for collect calls from inmates, which county commissioners have not given them the budget to accept. Since that's just money shifted from one county department to another, it'd be easy to remedy that, but NPR says it's that way because it's how the bail bondsmen want it.

Strong stuff, read or listen to the whole thing. This is the first in a promised three-part series.