Report cast dismal light on indigent defense in Amarillo

On the November episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed a new, commissioned report by the Sixth Amendment Center (6AC) analyzing indigent defense systems in Potter and Armstrong Counties. Potter County contains most of Amarillo, while Armstrong is a nearby, very rural county with very few lawyers, an 8-bed jail, and no municipal police departments. I've excerpted our segment here, and below pulled some highlights from the (somewhat overwritten) 200+ page report.


Here are a few key items from the report, which frankly paints an awfully grim picture:

Bailing out the boat with a thimble
In Texas, decisions directly affecting whether indigent defendants receive counsel are made at the county level. The Texas Indigent Defense Commission cannot and does not enforce minimum indigent-defense standards in Texas, said the executive summary:

The state legislature enacted the Texas Fair Defense Act in 2002, creating what is today the Texas Indigent Defense Commission (TIDC). TIDC disseminates limited state funding through grants to counties, but TIDC does not provide direct representation to indigent defendants and it does not have the power to force counties or judges to comply with any law, rule, standard, or policy relating to the provision of indigent defense services. Even if TIDC did have the authority to enforce the State of Texas’ Sixth and Fourteenth Amendment right to counsel obligations, TIDC has extremely limited ability to do so. TIDC operates with just 11 full-time equivalent employees who are responsible for ensuring that each and every person facing the potential loss of liberty has an effective lawyer at every critical stage of a criminal prosecution in each of Texas’ well over 900 trial courts spread across 254 counties. (Emphasis added.)

To be fair, TIDC understands this, it's just a difficult dynamic to overcome. Their main leverage for change comes from the threat of withholding grant money. That's not a lot compared to what counties spend, so there's little incentive to change practices. That their biggest-impact victories have involved transparency, not overt regulation. But Grits finds many state leaders don't fully comprehend the extent to which the agency is bailing out the boat with a thimble.

Potter County still reeling from ransomware attack 
In April, Potter County was attacked by a malicious virus and refused to pay its creators ransom, freezing up all their computers and taking them months to develop paper-based systems while they recoup. As of this writing, "it is unclear whether the courts’ lost records can ever be recovered. The district courts had not been storing backups of their data, and they also had not been paying their software vendor to back-up their files." This is a big deal that's not been widely reported outside of Amarillo.

Consequences of a misdemeanor conviction
"More than 74% of all misdemeanor defendants in Potter County are estimated to be pro se (not having a lawyer," said the 6AC. Here's how the report described the consequences of misdemeanor pretrial incarceration.

Although a misdemeanor conviction carries less incarceration time than a felony, the collateral consequences can be just as severe. Going to jail for even a few days may result in a person losing professional licenses, being excluded from public housing and student loan eligibility, or even being deported. A misdemeanor conviction and jail term may contribute to the break-up of the family, the loss of a job, or other consequences that may increase the need for both government-sponsored social services and future court hearings (e.g., matters involving parental rights) at taxpayers’ expense.

Some attorneys carry WAY too many cases
The report cited two attorneys in particular who carry caseloads far in excess of TIDC guidelines for how many criminal cases attorneys should handle:

• One attorney had 231 felony cases paid in FY2018, or a felony caseload nearing twice that of the 128 felony cases allowed by the summarized Texas guidelines. But this same attorney was also paid in 18 juvenile cases and 52 misdemeanors. The lawyer reported devoting 91% of his total practice time across all counties to indigent adult criminal defense appointments and 2% to indigent juvenile defense appointments. Thus, this attorney carried an indigent defense workload at 230% of the Texas caseload guidelines after adjusting for his reported practice time.
• A different attorney was paid for a caseload at 152% of the Texas caseload guidelines, but he spent only 18% of his time on that caseload. After accounting for the limited time available to his indigent clients, this attorney’s adjusted workload was 844% of the Texas caseload guidelines. Stated differently, this lawyer was carrying an indigent defense caseload in FY2018 that required more than eight full time attorneys under the Texas caseload guidelines.

Attorneys don't visit their clients in jail
Ever, apparently:

Attorneys appointed in both Armstrong and Potter counties widely acknowledge – and there is near universal agreement by judges, prosecutors, jailers, and community leaders – that they do not visit their in-custody clients in jail. Likewise, many attorneys do not meet with out of custody clients either. 

Instead, most appointed attorneys meet with the defendants they are appointed to represent, both in-custody and out of custody, only at the courthouse before or after scheduled court proceedings.   

Almost nobody gets money for investigators
Not surprising, but worth noting:

According to judges in Armstrong and Potter counties, court appointed lawyers “never” use investigators in misdemeanor cases and rarely do so in felony cases. One lawyer who has been on the court appointed counsel list for 10 years says he has used an investigator in only four cases. A different lawyer says she has “never” used an investigator in her 10 years on the Potter County list. As the table on page 139 indicates, in five years Armstrong County appointed attorneys have only used $350 worth of investigative services and $0 expert assistance in the defense of their indigent clients. Over five years, appointed attorneys have only used $429 in investigative services and $1,400 in expert assistance in misdemeanor cases in Potter County.

No oversight for attorney quality or caseloads
By design, because the judges say it would be a conflict of interest for them to "supervise" the attorneys they appoint:

there is no oversight of the attorneys appointed to represent indigent defendants in the two counties. The qualifications, training, and supervision required for appointed private attorneys in Armstrong County and Potter County are inadequate to ensure effective assistance of counsel to indigent defendants, and a significant number of those attorneys accept more appointed cases across Texas’ trial courts than national standards and the Texas Guidelines for Indigent Defense Caseloads say is acceptable. 

Nobody paying attention at critical junctures in the system
For example, "the judges of Armstrong County and Potter County do not keep track of defendants between magistration and institution of prosecution." So people get stranded in jail waiting for something to happen.

Judges tolerate ineffective assistance
Grits was surprised, but also not surprised, if you know what I mean, to see the frank declaration that some "appointed private attorneys [in Potter and Armstrong Counties] do not provide effective assistance of counsel."

Flat fee gives lawyers incentive to work less on cases
This is a problem everywhere flat fees are used, which is nearly every Texas county, and is one of the best arguments for a public-defender office from both an incentives and efficiency perspective:

Constructive denial of counsel in Armstrong and Potter counties is rooted in insufficient resources and low attorney compensation, as explained in chapter 8 (pages 144-154). Court-appointed attorneys in Armstrong and Potter counties are paid a single flat fee, in most cases, without regard to how much or how little time the attorney must devote to that case (e.g., $400-$500 for a misdemeanor or state jail felony). Although the indigent defense plan in Armstrong and Potter counties calls for “reasonable” attorney compensation as determined by the “time and effort expended” by the attorney, payment of a presumptive flat fee per case does just the opposite. Because attorneys are presumptively paid exactly the same amount no matter how few or how many hours they devote to a defendant’s case, it is in the attorney’s own financial interest to spend as little time as possible on each individual defendant’s case.

Stop intimidating defendants into declining counsel
Apparently, uniformed deputies or bailiffs are the ones who inform defendants of their right to request a lawyer if they are indigent, but those folks actively try to dissuade people from doing so. As a result, the 6AC recommended the counties:

prohibit all communication between prosecutors & prosecution staff and unrepresented defendants, unless and until defendants have been informed of their right to appointed counsel by a judicial officer, a judge has conducted the legally required colloquy, and a defendant has executed a written waiver of the right to counsel. Law enforcement personnel should be prohibited from giving defendants advice about their right to counsel choices.

Describing the arraignment process to unrepresented defendants, sheriff's deputies tell them they're going to "plea court." At arraignment:

all unrepresented misdemeanor defendants either plead guilty at arraignment, secure by hiring or appointment an attorney to represent them, or return unrepresented to court in two weeks for docket call. At that docket call, the exact same process that occurs at arraignment is repeated; again, giving unrepresented defendants the choice of negotiating a guilty plea with the prosecutor, securing by hiring or appointment an attorney to represent them, or returning unrepresented to court in another four weeks for trial.

Indeed, sometimes poor people requesting counsel are told to ask the prosecutor! "Potter County jail personnel advise felony defendants to contact the District Attorney’s office if they want to request appointed counsel after bonding out of jail, and otherwise the jail personnel say that bondsmen will tell a defendant how to request appointed counsel."

Counties should stop illegally billing indigent defendants for lawyers
The report declared this practice was instituted in Potter County after the 2008 financial crisis. On the podcast, Mandy said this is happening all over the state:

Indigent defendants are routinely required to repay Armstrong County and Potter County for the cost of the Sixth Amendment representation provided to them, despite having been determined by a court to be indigent and without any hearing (or evidence) to show that they have the financial ability to pay these costs, in violation of state law.

Remarkably, "Some appointed attorneys are unaware that every indigent defendant is entitled to an evidentiary hearing on ability to pay before the court can order the defendant to repay the county for the costs of indigent defense services." Regardless of whether the lawyers know this or not, "No such hearing is ever conducted."

The 6AC's strongest recommendation was that local judges "cease" doing that because it's illegal.

Other recommendations a bit lame
The first recommendation was to call on the legislature to create a study committee. (Yawn. Been there, done that, still have the t-shirt.) The second was only slightly less useless:

The trial court judges responsible under Texas law for providing and overseeing the Sixth Amendment right to counsel of indigent defendants in Armstrong County and Potter County should establish a non-partisan independent commission to oversee all aspects of indigent defense services, in order to eliminate the dangers of possible undue interference by the judicial and political branches of county government.

Those two suggestions, plus the bits about not intimidating defendants or billing indigent defendants for their lawyers, were the only formal recommendations in the report.

MORE: From the Texas Observer.

Media demagoguery won't help Potter County with jail crowding solutions

Local media discussions about jail overcrowding can sometimes be dishearteningly ignorant. At the Amarillo Globe-News, the "cirector [sic] of commentary" Dave Henry had a column on Jan. 18 titled "Get out of jail free cards no solution to crowding" that includes so many misperceptions and red herrings it's hard to know where to begin.

Earlier Globe-News reporting on the subject of Potter County Jail overcrowding had been downright thoughtful, explicating a consultant's analysis that broke down the various contributors to a full jail.  Kevin Welch reported ("Potter commissioners review options to ease jail overcrowding," Jan. 13) that:

Larry Irsik, a principal at Architexas, presented an overview of his company’s analysis, which involved many county departments.

He said Architexas looked at the types of inmates the jail holds, the process of moving through the justice system, pretrial risk assessment, probation and alternative monitoring, the speed of investigations and pretrial alternatives to incarceration.

One factor contributing to case delays is the backlog of the Texas Department of Public Safety crime lab.

“That was consistent throughout,” said Jeff Bradley, vice president and global director of HOK’s justice department.

Other delays were caused by the inability of courts, the jail and prosecuting attorneys to share information.

“There’s actually three software systems,” Bradley said, leading to redundant input of information and the potential for errors.

Using technology is one way the county could reduce its jail population. GPS tracking devices would cost about $2 per day for inmates awaiting trial versus $54 per day to house an inmate, according to the report.

Arguably, many folks in the jail could just be released on personal bonds. But even if judges felt that GPS tracking were necessary, by these data it would cost 3.7% of what they're paying to keep those folks locked up. In an era of declining crime, jail overcrowding is more often a result of failures in the system than an explosion in the number of lawbreakers. The consultants are right to look at excessive pretrial detention and inefficiencies in the courts as central causes of overincarceration.

Looking at the most recent jail population data for Potter County, a whopping 61% of inmates in the county jail hadn't been convicted of anything yet but were being held pretrial - nearly a quarter of Potter jail inmates are being held pretrial on lower-level misdemeanor or state jail felony offenses. Statewide, just 18.4% of jail inmates are misdemeanor and state jail defendants awaiting trial, so Potter is holding a greater proportion of low-level arrestees than other jurisdictions.

Bottom line, they're just incarcerating more people in Amarillo than they need to: Of counties with more than 100,000 residents, Potter County has the fifth highest county-jail incarceration rate, according to the Commission on Jail Standards. Their incarceration rate is 3.98 per 1,000 residents (compared to 2.2 per 1,000 in next-door Randall County, which is about the same size).

In his column, Mr. Henry never acknowledged that most Potter County Jail inmates have not been convicted of anything and compared suggestions that some of them be released to a jailbreak, echoing the Sheriff's line that if released they'd immediately launch a crime spree:

Last Thursday, there were 506 inmates at the jail — 263 considered violent and 243 considered nonviolent. That breaks down to 52 percent violent and 48 percent nonviolent.

It sure would be nice to get rid of nearly half the jail population just to ease the numbers, but is this really a solution?

“Just because they have a drug possession (charge), that means ‘Oh, well, we’ll just cut these people loose.’ OK, we’re going to cut them loose. So we’re going to give them more time to go do something else (illegal),” said Potter County Sheriff Brian Thomas. “What’s the answer? I don’t know.”

So the Sheriff a) has no solutions to offer (except, implicitly, soaking the taxpayers for new jail construction) and b) appears to think the purpose of jail is to punish people before they're convicted, not after. If defendants are a danger to the community and need to be locked up, that's for a jury or a judge to decide after their case has been adjudicated. Before then, they're still "innocent until proven guilty," though admittedly that legal principle (particularly in Potter County, apparently) is mostly honored in the breach.

Mr. Henry is particularly concerned that pot smokers - mostly misdemeanor defendants, it should be noted - might be released from the jail:

Those who advocate the release of “nonviolent” offenders caught with a miniscule amount of an illegal drug have a rather unrealistic view of such offenders. If it could be guaranteed that all such offenders were merely puffing away in their parent’s basement with the only negative effect being a case of the munchies, most would probably say throw open the jail cell doors.

However, no man is an island.

What of drug users who neglect their responsibilities (children, family members, loved ones) just to get high? Or committed a crime for which they did not get caught in order to finance their high?

I hear often that the supposed innocent use of weed does not lead to the use of hard drugs. True, this is not automatic. From personal experience, though, I know of several acquaintances that started off with pot, and are now paying the price later in life (health-wise) for using hard drugs.

A little jail time, rather than a slap on the wrist and a get-out-jail-free card, just might wake some people up to the dangers of drug use.

This is pure ignorance: Most of these defendants, even if convicted, will never be sentenced to jail time. Pot possession under two ounces is a Class B misdemeanor and defendants almost always receive probation. For that matter, people convicted of possessing less than a gram of harder drugs get probation on the first offense, by law. They'll spend more jail time pre-trial than as a result of a sentence, a manifestation of the adage in Grits' epigraph that one might beat the rap but you won't beat the ride. Those folks are ALL getting out of jail sooner or later (sooner, if their families come up with bail.) To read his column, you'd think he believes they'll stay locked up forever and Amarillo will never need worry about them again.

As for Henry's friends who "are now paying the price later in life (health-wise)" after starting out as pot smokers, it must be said that alcohol is far more unhealthy than marijuana, by any measure, which is why a half-day's drive up Highway 87 from Amarillo in Colorado they've flat-out legalized the substance altogether. But one suspects the Globe-News won't soon be leading the charge to ban booze and incarcerate beer drinkers.

In recent years, many counties overbuilt local facilities and ended up needlessly boosting taxes to pay for debt on jails they didn't need. Folks in Amarillo could ask their friends in Lubbock about that. It sounds like Potter County commissioners are getting decent advice from their consultants on the actual sources of jail crowding (I've filed an open records request for the consultant's report to see for myself), but this sort of foolish, fact-free demagoguery from the local press won't help matters.

Official policies, not "higher crime," cause Potter County Jail crowding

In Amarillo, the Potter County Jail is full and the Sheriff's Office wants to expand, reported the Amarillo Globe News last week ("Potter County examines jail overcrowding," June 9):

[Potter County Chief Deputy Roger] Short said Potter County officials are discussing the possibility of either replacing or expanding the Potter County Detention Center to address overcrowding problems at the facility at 13100 10th St. northeast of Amarillo. He said crowding at the jail puts the safety of officers and inmates at risk.

"It's been an issue for a while. We're staying at capacity," he said. "We don't have room for our own, and we've reached the point where we have to start looking down the road."

The jail houses recently booked offenders and inmates awaiting trial dates. It was built in 1995 for about $12 million. No additions have since been made to the facility, which employs 124 people, 93 of whom are corrections officers. ...

The annual total of inmates at the jail has increased every year since 2008. The facility booked in 7,024 offenders in 2010, up from 6,309 in 2008. ...

"We're just looking at an overburdened court system. With the depressed economy, alcohol and drug use are on the rise," he said. "You can combine all these factors, and we just have higher crime. But the main issue is we're crowded."

Despite Chief Deputy Short's claim that the cause of overcrowding is "higher crime," in reality crime in Amarillo has steadily declined over the last decade just like in most of the rest of the state. Grits compiled this chart depicting total index crimes from annual crime data reported to DPS:

Index crimes reported by the Sheriff's Office are de minimis compared to those handled by the Amarillo PD, but they've also been steadily dropping over the same period, declining by 39% between 2001 and 2009. From these data it's clear that the cause of Amarillo jail overcrowding is not "higher crime" but unnecessary bookings and pretrial detention. As of May 1st, according to the Texas Commission on Jail Standards, a whopping 66% of Potter County Jail inmates were incarcerated awaiting trial, compared to 53% statewide. As is usually the case in such circumstances, decisions by local police, prosecutors, and judges are the source of overcrowding, not the crime rate, which has been dropping. Perhaps that's why county commissioners aren't automatically biting on the jail-building bait, again from the Globe-News:

Commissioner H.R. Kelly said other large projects, such as the $16 million restoration of the county courthouse in downtown Amarillo, have prevented tackling any new projects.

"Right now, the county is kind of at a dire straits as far as having the finances to even consider another jail," he said. "Even adding another pod or two, that's not cheap."

Kelly said he's thinking about proposing measures that would let the jail release offenders with minor misdemeanor charges such as not paying traffic tickets.

Commissioner Joe Kirkwood said he supports placing an ankle-monitoring system on nonviolent offenders.

"When one person goes to jail, it affects their whole family," he said. "You can put them on an ankle bracelet and tell them, 'You can go to work and home.' They're back in society providing for their families."

In addition to those suggestions, Grits would offer several more: Police should begin using authority granted them by the Legislature in 2007 to issue citations instead of arresting for certain low-level, nonviolent misdemeanors. (In Austin, a 2008 study found that 37% of arrests would have been eligible for citations instead.)

Local judges are incarcerating defendants pretrial at a greater rate than the rest of the state and could quickly reduce overcrowding by setting lower bails for low-level offenses and issuing more personal bonds. If county commissioners wanted to contribute to the latter process, they could create a pretrial services program to evaluate offenders to determine bond levels or eligibility for personal bonds (if they've got one it's operating under the radar: a search of Google and Potter County government sites did not reveal it).

Further, the DA and/or County Attorney's offices could begin screening cases earlier in the process, a tactic which has reduced jail costs in El Paso and Harris Counties.

In any event, the cause of jail crowding in Potter County isn't "higher crime" but decisions and policies by local judges, prosecutors and police. Expanding the jail won't solve the problem if those actors don't change their respective approaches. Indeed, doing so would merely facilitate them continuing inefficient and wasteful practices that have filled up the jail during an era of declining criminality.

Op/ed: Constables redundant, expensive liability for communities

On the question of whether elected constables are still necessary in the 21st century, the Amarillo Globe-News published an op ed by an Amarillo police captain Jeff Lester, a 34-year veteran officer who was elected a Randall County Constable on a platform (which he fulfilled) that he would take no salary and shut down the office:

Each time a constable is elected to what was once a vacant office, voters have created another law enforcement agency that requires county commissioners to provide a reasonable salary, benefits, vehicle and training costs. Since constables are elected officials, they are the boss and don't have to answer to anyone but voters.

The Potter and Randall County sheriff's offices have always diligently handled the duties that can be performed by a constable. When the voters elect a constable, the counties don't reduce the number of deputies to maintain the previous year's budget, nor should they. As the investigative reporting showed, the sheriff's offices will still need the personnel to perform the duties of constables who don't work.

Unfortunately, a constable can be elected and never have had any previous police experience. Sure, they have to get a peace officer license within their first term of office, but do we as citizens really want this type of liability for our county government? Our hiring process for the Amarillo Police Department has rejected many cadet applicants who have received their peace officer's license. There are more important characteristics that a peace officer needs such as integrity, loyalty, truthfulness, trustworthiness and a desire to serve.

I have been an officer with Amarillo Police Department for 34 years and have interacted with other police personnel throughout the tri-state region and to my best recollection, Potter County's four constables did not have prior experience with any agency before being elected.

We have too many police agencies and there is duplication of services which is quite costly to the citizens. Amarillo has four police dispatch centers, three police photo and media labs, two county correctional facilities and the list goes on. Las Vegas Metro Police is an excellent example of where county agencies and local city and suburban police agencies were combined to form one agency, thus reducing the duplication of services and increasing communication, cooperation and supervision.

Am I advocating the combining of our local police agencies?

No.

But for example, Potter County needs a larger correctional facility and Randall County built a facility with ability to expand. With video arraignments and other new technology, Potter County might consider contracting with Randall County for prisoner housing. [Ed. note: Amarillo is the Potter County seat but extends into Randall County.]

Any time we as public servants can save taxpayers money for the services we provide, all options should be considered.

Commissary vendor pleads guilty to organized crime charges

I should mention after reporting how Sheriffs in Bexar and Potter Counties were hounded out of office over allegations of commissary-related bribery, prosecutors finally nailed down a conviction of one of the companies alleged to have bribed them, reported the Dallas News ("Jail food provider based in Dallas found guilty in organized crime case," Sept. 6):

The president of a Dallas company that provides food services for several jails around the state, along with the company itself, has been found guilty in the bribing of a former Potter County sheriff.

Mid-America Services Inc. will pay a $100,000 fine for engaging in organized criminal activity, according to the terms of a plea agreement finalized Friday in Collin County.

This comes a day after Robert Austin Jr., Mid-America president, pleaded guilty to a lesser charge of giving a gift to a public servant. Mr. Austin, who was accused of using bribes to obtain contracts, was sentenced to two years of probation and ordered to pay a $4,000 fine.

Potter County will receive the fines from both cases, which were moved to McKinney from Amarillo on a motion for venue change.

The guilty pleas are the culmination of a two-year investigation by the FBI into public corruption allegations against former Potter County Sheriff Michael Shumate.

Jail deaths due to medical neglect seem too frequent this year; Should state regulators do more?

Inmate deaths in county jails may be bubbling to the surface as a statewide issue of concern in 2008. Several recent cases collectively give me the sense that we're starting to see patterns that inevitably will become more common with so many people locked up. Most famously, the feds are investigating the Harris County jail after 12 inmates died and two more committed suicide during a 12-month span, but that's just the tip of the iceberg to judge by recent revelations.

In Potter County (Amarillo), a double murder suspect hung himself in the jail recently, and more troubling, a mentally ill probation revokee died after two use of force incidents, apparently spending at least two to three days in what a doctor said would have been excruciating pain leading up to his death without receiving proper medical attention. Reported the Amarillo Globe News ("Potter Sheriff defends lockup," July 24):

Michael Lee Dick, 33, was found dead in an isolation cell Saturday during a routine check. A preliminary autopsy Tuesday revealed he died of peritonitis caused by a perforated ulcer that could have caused severe pain in the hours leading up to his death.

The condition is irritating and can cause excruciating abdominal pain, said Dr. Kuldip Banwait, a gastroenterologist with Amarillo Endoscopy Center.

Jail staff is required to check inmates at least every 30 minutes, Boyter said, and Dick was on a 10-minute watch.

"As far as I know, he really didn't show any signs of medical problems," Boyter said.

The first time an officer checked on Dick in the isolation cell he was fine and sitting on the bed, Boyter said. He was lying on the bed 10 minutes later, so the officer went into his cell and found him unresponsive.

Banwait said peritonitis is an inflammation of the lining of the abdominal cavity. The lining supports abdominal organs and serves as a conduit for their blood vessels. He said someone suffering from peritonitis could die quickly.

"It depends on how young the person is," Banwait said. "It could be two to three days if not treated."

An Amarillo police lieutenant told a TV station, "we know that there was force used on him two different times and we know that injuries can linger, but we were told it wasn't an injury caused by assault but medically, but we are still investigating." Whether Dick's death resulted from injuries at the hands of officers or a pre-existing medical condition that jailers ignored, the county jail is still on the hook.

We still haven't learned much about the recent death of a 21-year old woman in the Travis County jail.

Meanwhile, in East Texas we find a case where a woman being held pretrial on a drug case in Henderson County was released on personal bond, driven immediately to the hospital and left there where she died eight days later. Reported the Athens Review:

Henderson County Sheriff Ronny Brownlow on Wednesday responded publicly about allegations he is retiring early in connection to the death investigation of a former county jail inmate. ... The 10-year sheriff said Wednesday that his plan to retire dates back at least until last fall, when he began serious discussions about it with those close to him.

Brownlow sent a letter to county officials earlier this month informing them of his intention to step down from office on July 31 — roughly five months before the official end of his term. The letter is dated July 8.

The announcement came during a time when information regarding the death of 56-year-old Debra Lee Newton began to surface. Newton was arrested on a charge of possession of a controlled substance on Feb. 18. Sometime in April, she allegedly became ill while incarcerated in the Henderson County Jail.

On April 25, the sheriff’s department asked that Newton be released on a personal recognizance bond. That request was granted, and Newton was taken to East Texas Medical Center Athens. She died eight days later, on May 3 — prompting allegations of impropriety on the part of sheriff’s department officials in their handling of Newton.

Henderson County District Attorney Donna Bennett’s office subsequently asked the Texas Rangers to investigate the circumstances of the death. That investigation is ongoing with Athens-based Ranger Trace McDonald. Lt. Pat McWilliams, a public relations officer, said the sheriff’s department welcomes the investigation.

“... We’re certain there’s no conspiracy and that the patient received adequate medical treatment,” McWilliams said last week.

Maybe there was "no conspiracy," but clearly the patient did not receive "adequate health care." She was in her death throes already when they released her on personal bond after two months in jail to take her to hospital. Surely it was clear she needed significant medical care well before that panicked, last-ditch decision!

At a time when the Texas Commission on Jail Standards is undergoing Sunset review, this news makes me wonder whether the state's inspections adequately assess county jails' healthcare delivery or even track the number and causes of jail deaths. That's a lot of deaths recently attributed to inadequate jail medical care. Will it just be tolerated?

Demagoguing Amarillo Sheriff joins ranks of "clowns" "scumbags" and "maggots" he railed against

Potter County Sheriff Mike Shumate has been convicted of bribery and yesterday was sentenced to six months jail time and eight years on probation. Reported the Amarillo Globe News:

He called them clowns, scumbags, maggots and idiots. He said he'd load criminals on a bus to jail where they would meet "Bubba," a fictional cellmate.

Former Potter County Sheriff Mike Shumate gained attention when he headed up Amarillo Crime Stoppers and castigated criminals on weekly radio spots.

He's now part of the gang.

Shumate was sentenced Tuesday to eight years of probation and 180 days in jail for accepting bribes while he was the top law enforcement officer in the county. He chose to accept a plea deal rather than have a jury decide his fate.

Shumate faced up to life in prison after he was found guilty Thursday of engaging in organized criminal activity. Shumate accepted bribes from Mid-America Services Inc. and its president, Robert Wayne Austin Jr., in exchange for ensuring the company received the county jail's food service and commissary contracts. Mid-America and Austin are both charged with bribery and trials are expected to begin in Collin County in September.

Globe News columnist Greg Sagan said he was:

baffled by some of what has come out about the Shumate affair. Two of Shumate's statements at trial, which were quoted in this paper, were ripe for all manner of pungent comment.

One was his reply to a question about why he had not accepted money that was offered to him from a contractor. Shumate's reply, "I didn't need the money," was an egregious blunder. Had I been in the jury box and heard such a comment, I would wonder long and hard what the outcome might have been if, indeed, he had needed the money. Was that all that kept him from accepting it, or was there, you know, like, some principle involved?

Such contemplation would have led me to believe that someone else had given him money first.

The second comment was Shumate's response when asked what he would have done had the cash been placed in his hand. He testified that the money would have fallen to the ground because of a wound he suffered to his right arm in Vietnam. No attorney should have ever allowed his client to say such a thing in court. My immediate reaction when I read this was, "Gee, what if they put it in his left hand?"

Right after that I thought to myself, "So why didn't he arrest the guy on the spot for attempting to bribe a public official?"

Meanwhile, over at the Fort Worth Star Telegram columnist Bud Kennedy realized that:

the same company, Mid-America Services, has $4.5 million in contracts with Tarrant and Wise counties.

Jurors in Amarillo convicted Potter County Sheriff Mike Shumate of bribery for taking money, computers and free meals, and then hiring or recommending Mid-America to run both the jail snacks-and-sundries cart and the jail kitchen. ...

Defense witnesses countered that the executive, the late Jack Madera of Kaufman County, was simply a gambler who needed cash to pay his bookie.

Nothing on either side of this story makes me feel good about our county contracts.

Officials in both Tarrant and Wise counties said they will review the contracts this summer and have not decided whether Mid-America should be eligible to bid.

The company and its current president, Bob Austin of Ellis County, are scheduled for trial Sept. 5 in the same case. That trial has been moved to McKinney.

The Wise County Sheriff told Kennedy he "lets vendors buy an occasional lunch," which is more of an admission than I'd be making after what happened to Sheriff Shumate! I'd bet even money we haven't seen the last allegations yet of bribery and jail commissary corruption.

Potter County Sheriff convicted of bribe taking; comprehensive audit needed of jail commissary contract awards

An all-woman jury yesterday in Amarillo brought back a guilty verdict against Potter County Sheriff Mike Shumate for taking bribes from the Dallas-based commissary manager, Mid-America Services. The "bribes" the state was able to prove were mostly meals, though quite a few of them, according to the Amarillo Globe News ("Shumate guilty," June 13):

Shumate testified he never took any bribes, but did say he accepted meals from Austin and Jack Madera, the founder of Mid-America.

Prosecutors with the Texas Attorney General's Office have shown receipts and bank statements that show Shumate attended about 36 meals with Madera and/or Austin that were paid for by the Mid-America employees.

During testimony, Shumate said Madera offered him $10,000, but that he declined the money.

"I said I didn't need it," Shumate testified.

Hmmmm. I'd prefer the Sheriff had replied to Mr. Madera, "It's illegal to try to bribe a public official. You're under arrest." (Madera has since died of cancer.)

Mid-America Services was also previously accused of bribing former Dallas County Sheriff Jim Bowles, but charges against Bowles and Madera were dropped after the Sheriff left office.

Commissary contracts have been a big source of alleged corruption in Texas Sheriff's Departments in the past year. In Bexar and Kleberg Counties, a Louisiana based company called "Premier" allegedly bribed the Bexar County Sheriff with swank golfing trips and gave the Kleberg Sheriff private consulting contracts after he left office.

In San Antonio, DA Susan Reed asked a grand jury to indict the Sheriff on bribery charges, but did not pursue them against the company allegedly doing the bribing. Unlike in Amarillo, she and the Sheriff were from opposite political parties and some locals thought the charges smacked of political opportunism. In Amarillo, though, the Sheriff and DA are both Republicans and the alleged briber has been indicted, too. (Unlike in Bexar, the DA handed off actual prosecution duties in the case to the Attorney General.)

Looking back at past Grits coverage, I find the conclusion I arrived at last year still applies equally well today:

It's clear that Texas needs to perform a comprehensive investigation/audit of county jail commissary contracts statewide. The obvious entity to investigate would be Attorney General Greg Abbott. But that would anger a lot of local pols and generate entirely predictable blowback, so I'm not holding my breath for him to do that. Otherwise, the Texas Commission on Jail Standards lacks the staff and perhaps the expertise and authority. The State Auditor might be another agency that could investigate in greater detail. Or perhaps one of the legislative committees on criminal justice will include the subject in an interim study.

But since none of that is likely to happen anytime soon, for now I'd call on every local newspaper and media outlet in the state (including any ambitious bloggers) to talk to your local Sheriffs' Office. Find out if commissary services are contracted or performed in house, and if it's a contract, file open records requests for all the communications you can lay your hands on between the company and the department, particularly the Sheriff. Odds are, similar corruption is going on elsewhere that nobody has uncovered yet.

That's as true today as when I wrote it; to my knowledge no one has begun to comprehensively examine how counties award commissary contracts despite the rash of alleged corruption. Once may be an anomaly, twice a coincidence, but three cases in a year seems to be a pattern. Where will the next allegations of jail commissary corruption crop up, and who will discover them?

Sheriff Shumate's sentencing hearing will occur on Tuesday.

Texas jail commissary corruption may run deeper than anyone knew

Mid America Services, the Dallas-based company that allegedly bribed the Potter County Sheriff to receive jail commissary contracts, was also at the center of bribery accusations that let to the indictment but ultimate dismissal of similar charges against then-Dallas County Sheriff Jim Bowles in 2004. Reported the Dallas News, the

Dallas-based company [was] at the center of an earlier case – which has since been dropped – against former Dallas County Sheriff Jim Bowles.

Sheriff Michael Shumate, 58, is accused of accepting bribes from Mid-America Services Inc., which handles food services at the Potter County Jail.

His attorney pointed to other investigations of his client in the past two years that resulted in no charges.

Sheriff Bowles was indicted in 2004 on a felony charge of misapplication of fiduciary property. He was accused of transferring more than $100,000 of campaign donations to personal checking and investment accounts.

Those charges grew out of a special prosecutor's investigation of former Mid-America Services Chairman Jack Madera and his dealings with Texas sheriffs and county officials.

A state district judge dismissed the charges against Sheriff Bowles in 2004, the same year that a felony indictment against Mr. Madera was thrown out. Mr. Madera died of cancer later that year.

Wednesday's indictment alleges that Sheriff Shumate engaged in organized criminal activity by taking illegal contributions from Mid-America. He did not report the contributions on his campaign finance reports as required by state law, according to a news release from the attorney general's office in Austin.

The same charge was leveled against Mid-America and its current president, Robert Austin Jr., who are accused of giving Mr. Shumate the money to retain the jail contract, District Attorney Randall Sims said.

Sounds to me like it's time to revive that special prosecutor's investigation against Mid America Services, which holds other jail commissary contracts around the state including in Tarrant County. The Bexar County Sheriff recently had to step down to avoid a commissary-related felony bribery rap involving a different company, Premier Management Enterprises, which also just lost its contract in Kleberg County over similar allegations. (Thankfully, commissaries in adult Texas prisons are operated by TDCJ.)

It's clear that Texas needs to perform a comprehensive investigation/audit of county jail commissary contracts statewide. The obvious entity to investigate would be Attorney General Greg Abbott. But that would anger a lot of local pols and generate entirely predictable blowback, so I'm not holding my breath for him to do that. Otherwise, the Texas Commission on Jail Standards lacks the staff and perhaps the expertise and authority. The State Auditor might be another agency that could investigate in greater detail. Or perhaps one of the legislative committees on criminal justice will include the subject in an interim study.

But since none of that is likely to happen anytime soon, for now I'd call on every local newspaper and media outlet in the state (including any ambitious bloggers) to talk to your local Sheriffs' Office. Find out if commissary services are contracted or performed in house, and if it's a contract, file open records requests for all the communications you can lay your hands on between the company and the department, particularly the Sheriff. Odds are, similar corruption is going on elsewhere that nobody has uncovered yet.

Here's more detail from the Attorney General's press packet regarding the Potter County indictments:

Media Links

Kenneth Farren indictment No.1

Kenneth Farren Indictment No. 2

Robert Austin engaging in organized criminal activity - bribery indictment

Mid-America Services engaging in organized criminal activity - bribery indictment

Michael Shumate engaging in organized criminal activity - bribery indictment

Michael Shumate accepting illegal contribution indictment No. 1

Michael Shumate accepting illegal contribution indictment No. 2

More jail commissary corruption alleged

This time in Potter County. Another recent bribery scandal involving the commissary in Bexar County resulted in the Sheriff's indictment and removal from office.

UPDATE: Meanwhile, the Rockwall County DA has been indicted for allegedly dipping into government funds to pay his monthlies. For whatever reason (the prosecutions appear uncoordinated), we've been seeing a lot of official corruption cases over the last couple of years.

No wonder a new report found that "The U.S. side of the border is vulnerable [to increased drug violence] because ... law enforcement is poorly coordinated, undersupplied and sometimes corrupt." If you think law enforcement corruption is just a Mexican problem, amigo, you've got another "think" coming.

Potter county jail has options to reduce overcrowding

Normally when I write about jail overcrowding in some particular county, it's easy to identify the right solution because they're mostly all the same. The vast majority of Texas county jails facing overcrowding have increased the rate of pretrial detention in Texas over the last 10-15 years, especially among low-level offenders.

In Amarillo, though, the Potter County Jail already does a pretty good job reducing the number of low-level pretrial detainees, though it could still do better with misdemeanants. The Amarillo Globe News reports the jail has 624 inmates in a jail designed to hold 596, which means inmates presently must sleep on the floor. Of those as of August 1, according to the Texas Commission on Jail Standards, 72 are pretrial misdemeanor detainees, and another 15 are alleged to have committed low-level (state jail felony) property and drug crimes.

But in response county commissioners are touting GPS tracking as a solution to their problems, even though they only have equipment and staffing to monitor 10 offenders. ("Potter approves inmate program," Aug 8)

That's simply not going to help much at all. I've written before how GPS is a labor intensive supervision solution that's not effective, especially on a large scale, if not supplemented with other tactics.

I'm not trying to pick on Potter officials, btw, they're doing better in some ways than other counties their size. But in this state that's a pretty low bar. My purpose is to suggest better approaches and alternative ways of thinking about jail overcrowding solutions besides "build, build, build."

For starters, Potter county court at law judges could help out by approving personal bonds for more low-level, misdemeanor offenders, which appears to be where the biggest short-term problem lies. Certainly offenders who've committed violent offenses may require bail, but not most non-violent misdemeanants.

Moving cases through the process faster, including felony cases, could make a big difference. Some counties have turned to public defenders to hook indigent defendants up with a lawyer as soon as possible and expedite cases more rapidly. That might be a good solution for Potter and neighboring Randall County to team up for such an endeavor, perhaps with a grant from the Task Force on Indigent Defense.

I also wonder (the reporter didn't mention it) whether Potter County and Amarillo police officials plan to implement HB 2391 allowing officers to give citations and summons instead of arrest for low-level, non-violent misdemeanors? The Governor approved the legislation this spring - the only significant bill passed this year aimed at helping overcrowded jails. So that's a new solution available to them on September 1. Will Potter County use it?

The regional MHMR community center in Amarillo will also receive new funds for mental health treatment as a result of the 80th Texas Legislature that, if spent wisely, could help relieve jail overcrowding among mentally ill defendants. The county and the MHMR center should perform confidential matches with jail and MHMR records to identify people in both systems and target them for preventive services that might keep them from relapsing and heading back to jail. The center could also work with jailers to reduce the amount of time required for competency restoration for mentally ill and retarded defendants.

Potter could always create a day reporting center like in Tyler, described here, for low-risk pretrial defendants. I'm still looking forward to seeing data from that project, which began late last year.

To the extent much of the local jail problem is drug related (and who's isn't?), I'd also like to see Potter and other urban centers go ahead and establish drug courts. Texas counties beginning September 1 must establish drug courts if they have a population above 200,000, which wouldn't automatically include Potter, but the courts in other parts of the state have reduced jail costs and recidivism.

In the medium to long term, Potter judges should begin using strengthened probation provisions in SB 166 and the Texas prison "sunset" legislation encouraging offenders to earn their way off probation through good behavior. Demonstrating good behavior over time, for most offenders, is the best way to judge whether they're ready for release (and remember, the worst offenders hopefully aren't getting probation, anyway). Over time, reducing probation caseloads will lower the number of revocations of long-term probationers and reduce jail population pressures.

Speaking of which, IMO it makes a big difference when judges who run the local probation department change the "outcome measures" to judge the success of their probation officers by different measures - namely the rate of their caseload who maintain verified, gainful employment and probationers educational achievement, both of which should be monitored closely and factored into potential early release decisions. One cannot control trends one cannot measure.

Finally, the Sheriff needs to declare a moratorium on Class C "traffic warrant roundups" by area law enforcement agencies until the jail overcrowding problem is solved. Such projects fill the coffers of municipalities at the expense of county government, and the Sheriff should cut off such wasteful uses of scarce jail resources until the short-term crisis is averted.

Those are my off-hand suggestions for Potter County - I'm sure that given the chance to talk to some of the key folks working in the local jail and community supervisions systems would reveal additional ways to shave the jail population without reducing public safety. But until the solutions are proposed and debated, they can't be pursued. Potter should spend the next few weeks planning and implementing the short and long-term solutions available to them, and maybe they can get some of the pictured inmates off the floor and back into bunks before the Commission on Jail Standards gets too mad.

Local taxpayers should be demanding these and other creative solutions before anyone proposes building more expensive jail space.

See prior, related Grits posts:

• Grits' best practices to reduce county jail overcrowding, Part 1
• Grits' best practices to reduce county jail overcrowding, Part 2