#CJreform Movement Poorly Positioned to Confront Re-Criminalized Abortion

During my three decades working on criminal-justice reform, when abortion came up, your correspondent always took the attitude, "That's someone else's job." Not anymore. As of last week, abortion became a criminal-justice issue in Texas, full stop.

The US Supreme Court's abandonment of Roe vs. Wade -- combined with a decision last year by Greg Abbott and the Texas Legislature to re-affirm criminal statutes on abortion from the 1925 Penal Code, if and when Roe ever fell --  suddenly have dumped the abortion question back into the realm of criminal law. 

SCOTUS decided Roe v. Wade when I was four years old, so I've never known a world in which the criminal courts managed women's reproductive choices. Thus it's easy to forget that the Wade in Roe v. Wade was Henry Wade, the Dallas County District Attorney,* and that for a century-plus before that, both obtaining and assisting with an abortion were crimes for which people were arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same facilities as murderers and thieves.

Statutes banning assisted or intentional miscarriages were on the books in Texas from at least 1854, before being updated to include the word "abortion" in 1907 and then codified into the Penal Code in 1925. Attorney Doug Gladden goes through that statutory history here. 

Gladden identified 40 abortion convictions in Texas appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of which five were reversed. Some cases may not have been appealed, and records may not be complete, but even so, this tells us abortion statutes weren't frequently enforced. 

What they did do was prevent most legitimate, trained doctors from performing them. In Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on an 18-year old girl. In 1907, a physician was prosecuted in Haskell, TX, for performing an abortion on his 13-year old sister-in-law, who had been raped. In El Paso,  Dr. Andrea Reum, whose husband was also a medical doctor, was prosecuted after performing an abortion on a young black woman. She was a rich society lady who wore fashionable gowns and diamonds while incarcerated in the county jail. 

The earliest case I found reported in Texas newspapers was n 1890 in Comanche, when a medical doctor was arrested for performing an abortion. Charges were later dismissed when the victim refused to testify.

Such episodes were widely publicized in the press and sent a message to physicians that performing abortions would cost them their licenses. In 1919, the Legislature passed HB 235 making that official, requiring license cancellation by the state medical board for any physician found to have given a criminal abortion.

The Amarillo Globe News in 1960 cited local physicians' concerns that the abortion ban forced women to have "do it yourself" abortions, and reported that most women seeking the procedure were married.

Forbidding safe abortions didn't mean women wouldn't pursue unsafe ones, en masse. By the time of Roe v. Wade, the practice had become widespread. According to the Fort Worth Star-Telegram, in 1966 an estimated one million women had criminal abortions, and 8,000 of them died as a result.

By contrast, in 2021, the Guttmacher Institute estimates about 930,000 women had safe, medical abortions, though the US population is much larger than in 1966. So legalizing abortion empirically didn't make their number increase; it only made things safer and less threatening for women and the nurses and physicians brave enough to help them.

If it's true that abortions were more prevalent under a criminal sanctions regime, from a policy perspective, re-criminalizing greatly increases the harm without achieving the desired result.

The other big intersection of criminal law and abortion rights in the wake of the Dobbs opinion arises for women under supervision of the justice system: Either out on bail or on probation or parole. Whether these women will be allowed to leave their jurisdiction to get an abortion will be decided on a judge-by-judge basis: Some will routinely allow it; some never will. This will create a patchwork of policies as well as massive incentive for defendants to lie to the courts and abscond.

Presently, because this hasn't been an issue the criminal-justice system dealt with in more than a half century, there's no criminal-justice reform group obviously well-situated to confront these questions. The ACLU will step up, one assumes, but they're being pulled in a million directions and don't have a winning track record on these topics. Meanwhile, abortion-rights groups who one would anticipate would be most aggressive haven't dealt with the justice system in a half century and will have a steep learning curve. Grits fears that neither the abortion rights movement nor the #cjreform movement are well-positioned to confront what's coming next.

MORE: A slightly expanded/edited version of this post was published in The Texas Observer.

* An earlier version of this blog post said Henry Wade was Harris County DA. He was DA in Dallas County. I regret the error.

Fifth Circuit still sucks on prison-conditions litigation: Coronavirus edition

The US Supreme Court has declined to vacate a stay by the 5th Circuit Court of Appeals of an injunction granted to Texas prison inmates from the Pack Unit, a geriatric prison unit, reported the New York Times. The inmates had asked for improved protections from the coronavirus. Four justices were needed to take the case, but only two apparently wanted to do so. Justice Sotomayor issued a statement, joined by Justice Ginsberg. Here are some notable excerpts:

The District Court heard unrefuted testimony that, despite the prison’s claim of enhanced cleaning measures, its cleaning protocol in practice remained virtually the same. The facility neither increased the number of inmate janitors nor ensured that the existing janitors did their jobs safely and effectively. One janitor testified that, just as before the pandemic, the cleaning solution provided to the cleaning crews was frequently depleted by midafternoon, only halfway through a shift. Each day he received only one pair of gloves to share with his co-janitor, an arrangement medical experts described as tantamount to no gloves at all.

The facility’s failures to comply with its own safety protocol became even clearer after [inmate Leonard] Clerkly’s death. Prison policies required that any inmate showing signs of Covid–19 be “‘triaged’” and “‘placed in medical isolation’” and that all areas used by the symptomatic inmate be thoroughly disinfected. Id., at *11. Yet even though Clerkly had difficulty breathing and died only a few hours after being transported to the hospital, the prison “made no representations” to the District Court that “they identified Mr. Clerkly as symptomatic, evaluated him for potential COVID-19 infection, or isolated or treated him for COVID-19 at any point before his transport to the hospital on the day of his death.” Ibid.

In fact, the prison “did not implement further precautionary measures until three days after Mr. Clerkly’s death.” Ibid. In the meantime, while the prison waited for a positive Covid–19 test that seemed certain to come, “countless inmates were knowingly exposed to a serious substantial risk of harm.” 

Having heard testimony from several witnesses from the Pack Unit and from prison experts who declared the Pack Unit practices “woefully inadequate,” the District Court held that applicants were likely to succeed on their Eighth Amendment claim. Id., at *12. The court noted the “obvious” risk of Covid–19 to the older men in the Pack Unit and reasoned that the prison’s failure to take basic steps, many of which were required by its own policies, evinced deliberate indifference. Id., *10, *13. The District Court then ordered the prison to mitigate the harm to inmates, including through some measures recommended by an expert witness who had managed prisons himself. Id., at *6–*7, *9–*12; 2020 WL 1899274.

Of particular interest was Sotomayor's analysis of the Fifth Circuit's decision and how they (perhaps improperly) ignored detailed fact finding from the lower court. Long-time watchers of this court will not be surprised, but I'm still glad someone said it: 

Despite the District Court’s detailed, careful findings, based on live testimony and the court’s own visit to the Pack Unit, the Fifth Circuit stayed the injunction. The Fifth Circuit noted that the prison had submitted evidence of “the protective measures it ha[d] taken as a result” of the Covid– 19 pandemic, and so the question was simply whether the Eighth Amendment required the prison “to do more.” 956 F. 3d, at ___ – ___.1 But in crediting the prison’s assurances, the Fifth Circuit did not address all of the District Court’s factual findings that the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates.2 See Farmer v. Brennan, 511 U. S. 825, 842 (1994) (noting that deliberate indifference is a question of fact often made out

by “inference from circumstantial evidence”). The Fifth Circuit may have acted outside its authority in refusing to defer to those factual findings. See Anderson v. Bessemer City, 470 U. S. 564, 573 (1985). Similarly, while the Fifth Circuit faulted the District Court for issuing an admittedly exacting injunction, that injunction too was rooted in equally detailed factfinding regarding the prison’s failure to live up to its promises.

Similarly worth noting was the discussion of the 5th Circuit's reading of "exhaustion" provisions in the Prison Litigation Reform Act, which, even when interpreted correctly, have shut down prison-conditions litigation all over the country in problematic ways. If TDCJ grievance procedures are effectively a "dead end," wondered Sotomayor, do they really count as an "available" remedy?

Also concerning was some of the Fifth Circuit’s language regarding exhaustion. This Court has made clear that the PLRA requires exhaustion only of “available” judicial remedies. Ross v. Blake, 578 U. S. ___, ___ (2016) (slip op., at 8). “[T]he ordinary meaning of the word ‘available’ is ‘capable of use for the accomplishment of a purpose.’” Ibid. (some internal quotation marks omitted). Thus, when a grievance procedure is a “dead end”—when “the facts on the ground” indicate that the grievance procedure provides no possibility of relief—the procedures may well be “unavailable.” Id., at ___ (slip op., at 9).

The Fifth Circuit seemed to reject the possibility that grievance procedures could ever be a “dead end” even if they could not provide relief before an inmate faced a serious risk of death. But if a plaintiff has established that the prison grievance procedures at issue are utterly incapable of responding to a rapidly spreading pandemic like Covid–19, the procedures may be “unavailable” to meet the plaintiff’s purposes, much in the way they would be if prison officials ignored the grievances entirely. Ibid. Here, of course, it is difficult to tell whether the prison’s system fits in that narrow category, as applicants did not attempt to avail themselves of the grievance process before filing suit. But I caution that in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer, the PLRA’s textual exception could open the courthouse doors where they would otherwise stay closed.  

Sotomayor added:

As the circumstances of this case make clear, the stakes could not be higher. Just a few nights ago, respondents revealed that “numerous inmates and staff members” at the Pack Unit “are now COVID-19 positive and the vast majority of those tested positive within the past two weeks.” 

Finally, her commentary concluded:

It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales.

That's all well and good, but hope is not a medical policy and won't address the unrefuted problems identified by the District court at the Pack Unit. This is incredibly disappointing. 

Judges rubber stamping capital writs, warrants now required for cell-phone location data, managed-assigned-counsel systems still suck, and other stories

Here are a few odds and ends that merit readers' attention:

Austin admits police oversight system didn't do much
Grits has said for years that Austin's civilian review panel for police was more or less worthless as oversight. They make fine recommendations, but none of them are ever implemented, as the Texas Criminal Justice Coalition demonstrated in a report last year. Now, a city auditor's report has agreed, finding that none of the civilian review panel's recommendations under the old system were ever implemented. See coverage from the Austin Monitor.

Lawsuit: Austin PD failed to properly investigate sexual assault cases
See coverage from the Daily Beast. Putting a pin in this one to look at later. Given that Austin PD's DNA lab has already been shut down because they were performing the tests wrong, it's not hard to imagine some cases aren't aggressively pursued when they should be.

Bexar should reject calls for managed-assigned-counsel
The SA Express News editorial board argued that Bexar County needs to a) spend more on indigent defense but also b) spend more on oversight to make sure it's getting quality defense for the money it's spending. They should stop promoting the Managed Assigned Counsel program, which has been a disaster in Austin. What Bexar County needs is a full-blown public defender office, and not just for mental-health cases.

Harris County judges rubber stamp DA findings in capital writs
In 96 percent of state capital habeas cases since 1995, judges in Harris County simply adopted proposed findings of fact written by the prosecution, according to this analysis from the Houston Law Review. See this summary of the analysis compiled by The Open File.

Paxton sides against local GOP judges in bail litigation
Positioning himself opposite the Republican judges who've spent more than $6 million fighting bail reform in Harris County, Texas Attorney General Ken Paxton is seeking to have lawsuits dismissed which were filed by Harris County magistrates against the State Commission on Judicial Conduct after that agency had sanctioned them. The judges in Houston fighting bail reform are becoming increasingly isolated. The bail bond industry is nearly their only remaining ally, given that statewide elected officials like the Attorney General and the Texas Supreme Court Chief Justice haven't backed their play.

Settlement in pool party police assault
The girl who was famously slammed down by police at a McKinney pool party has entered into a settlement with the city, reported The Root. " According to the Fort Worth Star-Telegram, under the terms of the settlement, ... plaintiffs in the case, were awarded a total of $184,850 last month, with $148,850 of that amount going to" the principle victim. ALSO: The Statesman has the story of another high-profile civil rights suit against a police officer out of Mesquite who tazed a teenager in the groin in a situation where the boy ultimately died.

SCOTUS: Protect cell-phone location data with warrant requirement
I haven't had time yet to read the new Carpenter decision from the US Supreme Court on when law enforcement must get a warrant to access cell-phone location data and when they don't need one. But the fact that Orin Kerr is grumpy means I'm likely to like it. Regular readers may recall that Grits had previewed the case around Christmastime with a poetic homage.

Import of recanted informant testimony never evaluated in capital case

In the latest Reasonably Suspicious podcast, my co-host, Texas Defender Service Executive Director Mandy Marzullo, described the case of Juan Castillo, who is scheduled for execution on May 16. His conviction was based in part on informant testimony which was later recanted, but the courts have never meaningfully evaluated how this allegedly false testimony affected Castillo's case. Since there has only been sparse coverage of these events, I pulled this segment out as a stand-alone. Give it a listen:


Find a transcript of our conversation below the jump. MORE: From the indefatigable Keri Blakinger. AND MORE (5/7): See a plea for clemency for Mr. Castillo published in the SA Express News.

'A Very Carpenter Christmas'

From the intro to the latest Reasonably Suspicious podcast, apropos of Christmas Eve, please enjoy 'A Very Carpenter Christmas,' a bit of seasonal verse in honor of US v. Carpenter - the case pending before the US Supreme Court which will decide whether the government must secure a search warrant under the Fourth Amendment in order to access personal location tracking data on individuals from their cell-phone service providers:

'Twas the night before Christmas and all through the home, 

The smartphones pinged cell towers, ne'er did they roam. 

Their location was fixed there all through the night, 

Could be proven in court with no warrant in sight. 

Then what to my wondering eyes did appear, 

But Chief Justice Roberts like a red-nosed reindeer,

Leading the way for SCOTUS to hone 

A warrant requirement for tracking your phone. 

On Roberts, on Gorsuch, on Sotomayor. 

Tracking us isn't what phones are for. 

On Thomas, on Ginsburg, on Breyer, on Kagan. 

Please give Fourth Amendment fans something to cheer again. 

And clearly explain, before it goes out of sight, 

Why not being tracked by our phones is a right.

Or, here's an audio excerpt from the podcast with your correspondent reading this sure-to-be-a-classic selection:


Merry Christmas, y'all.

Spotlight on ineffective assistance: Barriers to remedies

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.

He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel  - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.

Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen:


Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.

Why an innocent person would plea bargain

The Atlantic has a good roundup of US Supreme Court cases related to criminal justice coming up in the term which just began, and Grits was interested to note Class v. United States (see the SCOTUSBlog preview), in which "the justices will ponder an unusual legal question: If a defendant pleads guilty to a crime, does he or she lose the right to challenge that crime’s constitutionality?"

In an era when 97% or so of criminal cases end in plea bargains, this is a significant question.

In Texas the issue of whether challenges to a conviction may arise from a guilty plea in state court arose in Ex Parte Tuley, a case decided in 2002 and which your correspondent hadn't considered in many years. The Tuley case challenged a conviction in which the defendant was in fact actually innocent, but pled guilty to avoid a much harsher sentence in the face of false accusations of sexual abuse by a child victim. The final ruling included a wonderful passage written by then Court of Criminal Appeals Judge Tom Price:

I think it is colossal hypocrisy to exclaim, “we are shocked, positively shocked,” that a person who has pleaded guilty pursuant to a negotiated plea bargain would never do so unless he were truly guilty and believed himself guilty. Who are we kidding? It is true that Mr. Tuley did sign and swear to a form stipulation that “the following facts [tracking the indictment allegations] are true and correct and constitute the evidence in this case.” He, of course, did not design the form. It is certainly accurate to say that there was some evidence already admitted in the original trial that would support a finding that the indictment allegations were true. 

It is also true that the trial judge asked the magic question:  “Are you pleading guilty because you are in fact guilty and for no other reason?” and applicant responded:  “Yes, ma‘am.” Does this make him a perjurer? A self-admitted liar? 

Suppose Mr. Tuley had been given a dose of truth serum. Now, in response to the magic question, he responds: 

Your Honor, I do not believe that I am guilty. In fact, I know that I am not guilty.   However, the present jury is deadlocked. Some of those jurors may believe that I am not guilty, but others obviously differ. A different jury could conceivably find me guilty and sentence me to life in prison. That is a very serious risk to me. Furthermore, I do not have enough money to pay my lawyer for conducting a second trial. I am worried that I might have to go to jail just to be entitled to an appointed lawyer for a second trial. I have a job. I would lose my job if I had to go to jail for months waiting for a second trial. Quite frankly, I am out of money and out of time. I just want to go home. The State has made a very attractive offer of ten years deferred adjudication. This is an offer I cannot refuse, given the obvious risks I face if I continue to maintain my innocence and insist upon a second trial. So, even though I am innocent of this charge, I want to plead guilty because I am making a fully informed, free, voluntary and rational choice among the alternative courses of action available to me. 

The trial judge, hearing this unusual response, is likely to say something along the lines of: 

How can you expect me to accept your plea of guilty? This is a very serious offense and it carries a potential life sentence if you should violate the terms of your community service. How can you expect me to accept a guilty plea to the first degree offense of aggravated sexual assault of a child if you say you are not guilty, but you want to plead guilty anyway? And besides, I heard the same evidence that the jury heard and I am not fully persuaded that the evidence is sufficient to support a conviction beyond a reasonable doubt. I refuse to accept your guilty plea and we will set this case for another trial. 

Mr. Tuley, then, is likely to say: 

Judge, whose side are you on?   Are you on my side? I just want to plead guilty.   I didn't do it. I know that, but I also know that the prosecution has a child complainant who says that I did. I have a drug problem and a jury is likely to hold that against me, and, frankly, I look dishonest. Nobody is going to believe me. Now, do me a favor and let me plead guilty and get my ten years deferred. This is a good deal. I want to take it. Don't stand in my way. 

But an honorable trial judge might reasonably respond: 

But, if you're not guilty, I cannot take your guilty plea. I am worried about this man pleading guilty to something he is not guilty of. That is just wrong, and I can't allow that kind of an injustice to take place in my court. 

Mr. Tuley's honest reaction might well be:  “Don't be my friend. With friends like you, who needs enemies?” Instead, Mr. Tuley's lawyer would probably yank him off to the corner and after a certain whispering back and forth, Mr. Tuley will see the light He will now respond appropriately to the magic question:  “Are you pleading guilty because you are guilty and for no other reason?” with the right answer:  “Yes, ma‘am.”

Texas AG: Carrying a gun doesn't justify 'Terry' frisks

Texas Attorney General Ken Paxton has signed onto an amicus brief aimed at the US Supreme Court to argue that carrying a firearm in a state where that's legal does not justify a "Terry frisk" based on officer safety. Here's the full text of his press release:

Attorney General Ken Paxton yesterday joined West Virginia’s amicus brief in Robinson v. United States along with Indiana, Michigan and Utah in the United States Supreme Court to protect against unjustified frisk searches occurring on the suspicion that a citizen is armed. The basis for this search places a burden on the Second Amendment right to carry a firearm. 

In 1968, Terry v. Ohio determined that a law enforcement officer may both stop and frisk an individual when “specific and articulable facts” lead an officer to reasonably believe criminal activity is occurring. This search is justifiable when the officer believes the detained individual “is armed and presently dangerous to the officer or others.” However, an en banc Fourth Circuit recently interpreted Terry to require only a reasonable suspicion that the individual is armed. This interpretation allows officers to justify a frisk search solely on the suspicion of possessing a weapon during a lawful stop, regardless whether there is a reasonable belief that the individual is dangerous. 

“The Fourth Circuit interpretation places an unlawful burden on Second Amendment rights. The Constitution plainly guarantees law-abiding citizens the right to bear arms, whether through open or concealed carry,” said Attorney General Paxton. “We must ensure the Court continues to protect the constitutional rights of law-abiding citizens.”

The issue to be decided in this case:

Whether, in a State that permits residents to legally carry firearms while in public, a law
enforcement officer’s belief that an individual stopped during a lawful Terry stop has a firearm on his or her person provides a sufficient basis — standing alone — for the officer to conclude that the armed individual is “presently dangerous” and thus allow the officer to lawfully engage in a warrantless “frisk” of that individual.

The implications are significant: Possibly carrying a gun is the main justification for Terry frisks, so if that's no longer sufficient, it could virtually end the practice.

Ken Paxton may be the most unlikely Fourth Amendment advocate imaginable, which may explain why he only reached these questions when a Second Amendment right was at stake.

When prosecutors have too much time on their hands, and other stories

Here are a few odds and ends of which Grits readers should be aware, even if your correspondent hasn't had time to focus as much as one might like on the blog in recent weeks:

Too many prosecutors with time on their hands
Travis County keeps old misdemeanor arrest warrants on the books that are 30 years old or more. For what possible purpose, one wonders? The story arises because, with the number of hot-check cases rapidly declining, prosecutors in the hot-check division don't have anything better to do and have begun to try to collect on these old cases. Maybe the County Attorney should just reduce staffing in that division commensurate with the decline in caseload instead of sending them on fishing expeditions for old unpaid tickets. Just a thought.

Quis Custodiet Ipsos Custodes
A police officer in Dallas has been indicted for an on-duty shooting for the first time in 43 years. But an indictment is one thing, conviction another. In Fort Worth, charges were dismissed against a cop who shot a man holding a barbecue fork after the original charges resulted in a mistrial. The state trooper indicted for perjury after Sandra Bland's arrest and death in the Waller County Jail, but charges were dropped this week. Not only is it difficult to prosecute bad cops, it can be damn hard to fire them: In San Antonio, a once-before-fired officer who'd been returned to the force by an arbitrator, was once again given his job back through arbitration after he'd fled the scene of a crime where his gun was used to shoot someone and a bag of cocaine was found in his truck. He failed to report his involvement to his supervisors and misled investigators at the scene, but was let back on the force. About the only way Texas cops are ever successfully prosecuted is if the feds do it, like with this guy.

Bill death doesn't halt bail reform
Texas legislation to require courts to use risk assessments when setting  bail amounts died this year as an industry which has in essence captured its regulators demonstrably exercised control over the legislative process. But arguments against the practice aren't going away and neither is the bail litigation in Harris County, which looks like it could end up at the US Supreme Court before all is done. As evidenced in the next item, Texas' hasn't fared well there, recently, fwiw.

Texas cases defined SCOTUS capital punishment debate this year
Commentators from the left and right all agree that Texas cases - especially ones where the Court of Criminal Appeals has embarrassed the state over reactionary, reflexively pro-government rulings that fly in the face of reason and common sense - are more or less defining the terms of debate over the death penalty these days at the US Supreme Court.

Forensic (not-quite) Science Update
How much science is in forensic science? Less than you think. But the tuff-on-crime crowd clings to unscientific (or more accurately, pre-scientific) reliance on longstanding forensic practices with higher-than-zero false positive rates, many of which have been portrayed as all but foolproof in courtrooms across America. This podcast gives a good overview of recent federal developments and their implications.

Holiday Reading
Here are a couple of academic articles  Grits has downloaded and intends to read over the July 4th holiday:

• A Holistic Framework to Aid Responsible Plea Bargaining by Prosecutors
• Public Trust and Police Deception

When does SCOTUS say it's okay for Texas lawyers to be ineffective?

Question: When is it okay for Texas lawyers to overtly provide their clients with ineffective assistance without it jeopardizing their conviction?

Answer (from the US Supreme Court in Davila v. Davis): During state-level habeas corpus proceedings under Ch. 11.07 of the Texas Code of Criminal Procedure. The client has no recourse, no matter how bad their lawyer screws up, under the Supremes' latest hit to defendants' ever-waning constitutional protections. Clarence Thomas wrote for the five-member majority, as quoted by Jolie McCullough in the Texas Tribune:

"Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote in his opinion, joined by Chief Justice John Roberts and justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch.

Grits finds this especially frustrating because it's not just death-penalty cases - where defendants receive automatic federal habeas corpus review - where lawyers might provide ineffective assistance. There's no right to counsel for any state habeas proceedings - including the junk science writ created in recent years by the Texas Legislature - meaning lawyers can be ineffective in that work without it weighing into the outcome. That's frustrating and upsetting.

Justice Breyer, in dissent, considered this a situation where “the framework of state procedural law 'makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.'” Under Texas law, as the court "pointed out in Martinez ... the 'initial' state collateral review proceeding [in Texas] 'is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial.'" (It can also happen on direct appeal, but often the trial attorney files those and is unlikely to make an ineffective assistance claim about their own work.) In Martinez, Breyer added, SCOTUS said that in Texas, state habeas “is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.”

So without a right to counsel at least for purposes of challenging ineffective assistance by one's appellate attorney through a habeas corpus writ, Texas' law and judicial practice have essentially extinguished defendants' rights to challenge it at all in many cases.  And five members of SCOTUS have now enshrined that perverse outcome into law unless the Legislature or state courts seek to change course.

The outcome reinforces the outcry from Judge Elsa Alcala in a separate case in which she called for providing counsel for state habeas claims in a notable dissent. Doing so would not only better protect defendants' constitutional rights, but also modulate and streamline the workload of the Court of Criminal Appeals, which is annually flooded with pro se writs. That would help weed out frivolous claims and make it more likely the CCA can spot the valid ones.

Make Grits Philosopher King and I'd suggest Texas should create a public-defender office for appeals and writs comparable to the Office of the State Prosecuting Attorney on the government's side, with a specific mandate for representing defendants' state habeas claims.*  But the Legislature this year balked even at spending a much smaller sum to cover direct appeals in death-penalty cases (HB 1676) - and failed to give the Office of Capital and Forensic Writs extra money to cover representation in junk-science writs - so at the moment, political will is lacking.

As a final, notable aside, McCullough pointed out that:

This was the third Texas death penalty case heard by the U.S. Supreme Court this term, which began in October and ends this week, but it was the first time the justices sided with the state over the inmate. In February, the court agreed with inmate Duane Buck that his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black. And in March, the justices sided with Bobby Moore, declaring that Texas’ method for determining intellectual disability for death row inmates was unconstitutional.

* Before someone suggests it, keeping the State Counsel for Offenders as an arm of TDCJ instead of making it independent, like the SPA, has prevented it from ever aspiring to play such a role.

Debtors-prison policies decried, DPS cuts license center hours, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused on preparing for a much-need break next week.

SCOTUS to consider warrants for cell-phone location data
The US Supreme Court will finally consider the constitutionality of accessing cell-phone location data from service providers without a Fourth Amendment search warrant. See a press release from the ACLU, a report from Ars Technica, NY Times coverage, and commentary from Mother Jones. This makes me wish Texas had succeeded in enacting a statutory warrant requirement - an effort with which your correspondent was involved for several years. Doing so would bolster the case for the courts requiring a warrant and provide belt-and-suspenders protection if SCOTUS rules the wrong way.

Budget cuts shorten DPS driver license center hours, but border security fully funded
Border security funding for DPS remained at pre-Trump levels in Texas' new state budget, despite the President's commitment to having the feds step up on border security. In the meantime, though, legislators cut DPS' budget resulting in shortening hours at state drivers license centers. Legislators say they didn't know that would be the result of the cuts, but it's hard to see how anyone believed that cutting the DPS budget while making border security spending sacrosanct could possibly result in anything else but reduced services. MORE: Following a predictable uproar, the governor ordered DPS to reinstate the old hours. Of course, he' can't reinstate the money to pay for it, which was cut in the budget he just signed, so DPS will have to cut services in other areas.

Discussing future dangerousness
A New York Times feature last week featured a discussion of Texas' Duane Buck case and the notion of proving "future dangerousness." The article brought to mind an old Texas Defender Service report from 2004 which found most predictions of future dangerousness by then-commonly used experts turned out to be demonstrably wrong. See also Judge Elsa Alcala's dissent from the Buck case, which was received more favorably by justices on SCOTUS than by her colleagues on the Court of Criminal Appeals. FWIW, Texas executions are down, the Dallas News reported recently, though Grits would expect them to rise again by the end of the year. The main reasons for the decline were a new 2015 law requiring prosecutors to give notice to the defense when they seek to have execution dates set, and Texas' new junk science writ, which has resulted in consideration of additional issues in several cases. Over time, though, most of those cases will end up with execution dates. Executions are slowing, but not by as much as last year's numbers would indicate.

What a screwup
Never convicted, he still spent 35 years locked up in TDCJ: Jerry Hartfield was released this week.

Documenting Texas forensic reforms
Nicole Casarez and Sandra Guerra Thompson have a new academic paper out posted on SSRN last month discussing Texas forensic reforms. Not all of those efforts have worked as well as one might like, but Texas has done more than most states on this front.

Debtors prison policies decried
See testimony from Texas A&M law prof Neil Sobol to the US Commission on Civil Rights related to debtors prison practices, and a pair of academic articles he wrote suggesting consumer credit protections be applied to nonpayment by criminal defendants. This year, the Texas Legislature passed important reforms to limit arrests for criminal-justice debt. See coverage from the San Francisco Chronicle. Then go here to ask Gov. Abbott to sign HB 351 limiting debtors-prison practices.

When SCOTUS encourages aggressive policing

Here's the abstract to a new academic paper titled, "The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing," which goes on Grits' to-read list:

On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these events are also — and much more importantly — connected by decades of Supreme Court jurisprudence. It will describe how since before the close of the Warren Court in 1969 the Supreme Court began a process of expanding police powers, restricting individual Fourth Amendment safeguards, and encouraging officers to engage in unconstitutional investigative practices. The article will proceed with a particularized focus upon the Supreme Court’s exclusionary rule and standing jurisprudence, and its discussion of Strieff will take place in this broader context. It will explain how the decline of the exclusionary rule and the attendant standing doctrine over the course of several decades has helped foster a culture of aggressive police practices. It will illuminate how the Court’s steady expansion of police investigative authority, coupled with its increasing willingness to forgive constitutional missteps by the government, have encouraged the police to engage in unconstitutional practices and to test the outer limits of acceptable police behaviors. 

When viewed in this context, Strieff is the latest in a series of Supreme Court cases that have implicitly encouraged aggressive police conduct. Strieff is a most unfortunate and perilous expansion of the attenuated circumstances doctrine. Though accurately cast as a case that encourages unconstitutional detentions by the police, a more apt description of Strieff is that it promotes physical contact with individuals by the police without just cause. In contrast to the Court’s good faith exception and attenuated circumstances cases that preceded it, Strieff breaks disturbing new ground; it creates an incentive for officers to get within close proximity of individuals, to detain them unconstitutionally, and to risk unnecessary physical confrontation. At a time when officer aggression has ignited national controversy and irritation in communities (particularly minority) from coast to coast, Strieff delivers the wrong message at the wrong time.

FWIW, SCOTUS may say police have these powers now, but state legislatures have authority to rein them in, if there is political will.

Civil suit may force Reyna recusal on Twin Peaks, and other stories

Here are a few odds and ends which merit Grits readers' attention:

• A proposed resolution this Thursday at the Austin City Council directs city staff to draft regulations for municipal court judges significantly limiting when people may be arrested for nonpayment of Class C fines.
• Whether Dallas can purchase the shuttered Dawson State Jail depends on the price.
• McLennan DA Abel Reyna may have to recuse himself from prosecuting the Twin Peaks biker cases because of a civil suit against him. Normally prosecutors have absolute immunity and can't be sued, but Reyna likely opened himself up by directing the police investigation on the ground and usurping the officers' role. 
• The Christian Science Monitor has a piece on the Laura and John Arnold Foundation's risk assessment model, for which Grits harbors high hopes. Related: From USA Today, "Justice system too costly for the unconvicted." Also: from the Houston Press, "If Mom doesn't pick up her phone, you might end up stuck in jail."
• The chairman-elect of the Texas Association of Business had a column in the El Paso Times urging the Lege to raise the age of adult criminal culpability in Texas from 17-18.
• Amanda Woog's Texas Justice Initiative data project continues to receive attention. See a lengthy Huntsville Item story on the topic.
• For the first time, proposals for criminal justice reform made it into both national party platforms, noted the Brennan Center.
• Out of New Mexico, read what happens when a long-time District Attorney decides to prosecute police officers over bad shootings.
• How traffic tickets can destroy indigent people's lives. See also this essay from the Boston Review on the history of debtors prisons in American jurisprudence.
• SCOTUS last term continued the decades-long trend toward gutting the Fourth Amendment like a fish.
• The jury trial is dead. You're shocked, I know.
• Your correspondent last week made some LED-lettering signs for our friends at the Austin Justice Coalition to use at protests and events. I thought they turned out pretty well:

 

Alcala-Sotomayor parallels, divergence

Adam Liptak in the New York Times on Monday highlighted Justice Sonia Sotomayor's notable recent dissents in US Supreme Court cases regarding prosecutorial overreach and abrogation of individual rights by the criminal-justice system. He's right that she's been the best civil liberties champion on SCOTUS, so it's good to see that record illuminated and broadcast more widely beyond the narrow audience of people who read Supreme Court opinions.

For Grits, who falls in the even narrower audience of people who read Texas Court of Criminal Appeals opinions, it's hard not to read the story and see parallels to Texas' own Judge Elsa Alcala, whom Grits recently compared to a "black-robed, Latina John the Baptist" calling out like a lone voice in the wilderness decrying inequities in the appeals process. Both women came from relatively underprivileged backgrounds: Sotomayor was raised by a single mother, while Alacala, one of five children, lost both parents at age 14. If you squint, they even look a bit alike:

Top: Sonia Sotomayor; Bottom: Elsa Alcala

Grits lately has praised Judge Alcala's calls for greater accountability for ineffective defense counsel, as well as her demand that the court recognize meaningful recourse via habeas corpus for indigent defendants whose lawyers severely under-performed. But I could have also mentioned the case for which she received much more press attention - a recent dissent questioning the wisdom of the death penalty, as written up by the Austin Statesman, Fusion, and US News and World Report. Among the money quotes:

• “In my view, the Texas scheme has some serious deficiencies that have, in the past, caused me great concern about this form of punishment as it exists in Texas today.” 
• “[T]he time has come for this Court to reconsider whether the death penalty remains a constitutionally acceptable form of punishment under the current Texas scheme.”
• "Given both state and federal case law and the history of racial discrimination in this country, I have no doubt that race has been an improper consideration in particular death-penalty cases, and it is therefore proper to permit (Murphy) the opportunity to present evidence at a hearing about the specifics in his case." 

Judge Alcala speaks softly but carries a big stick. She's one of the less prolific opinion writers on the court - ranked fifth in the total number of opinions written in 2015, according to the Office of Court Administration (see bottom of p. 4 of this report). But she wrote the third most dissents. She authored 37 opinions in 2015, including six dissents. By contrast, Presiding Judge Sharon Keller was the court's most prolific writer, with 69 opinions, including 14 dissents.* Here are the total dissents authored by each Texas CCA member in FY 2015:

The Dissenters (TX CCA)

Meyers: 19

Keller: 14
Alcala: 6
Johnson: 5
Keasler: 2
Yeary: 2**
Newell: 2**
Hervey: 0
Richardson: 0**

However, Meyers' and Keller's recent dissents haven't been as memorable or important as, say, Judge Alcala's January concurrence from Ex Parte Robbins in which she called out her colleagues by name for gaming the process to undermine the state's junk science writ. Her and Keller's opinions have defined the terms of debate on major issues facing the court to a remarkable extent. Boosting the entertainment value significantly, they're each prone to disagree on the issues the other is most passionate about.

Judge Alcala loses an important ally on the court this year with Judge Cheryl Johnson retiring. They've frequently tag-teamed in opposition to Keller and Co.. With Johnson gone, Alacala faces a particularly hostile environment, confronting long-time judges used to ruling the roost who at times seem resentful at her impertinence for, I guess, expressing an opinion.

Along with Judges Keller and Hervey, Alcala's term expires in 2018. Between now and then, however, the court will undergo a major transition, with Mary Lou Keel and political unknown Scott Walker joining the court in January. Grits fears one or both will provide an additional vote for the government-always-wins faction, which presently includes Keller, Hervey, Keasler, and Yeary. Those four votes are reliably for the state almost no matter what the circumstance. So on any given issue, they only need to pick off one vote for that faction (and thus the government) to prevail.

That dynamic shifts topic by topic. Judge Yeary, a devout practicing Catholic, has been known to divert from the fold on death penalty matters. And Presiding Judge Keller seems to have a much deeper understanding of First Amendment law than anyone else on the court, leading to some interesting pro-defense opinions when it came to the constitutionality of offenses like "online solicitation of a minor," etc.. So these are general observations, not a hard and fast rule.

But on most days, in most cases, that four-vote faction will hold. Right now, that's sometimes insufficient for them to prevail, as evidenced by the volume of Judge Keller's dissents. (Rookie Judge David Newell frequently finds himself the swing vote in a number of recent controversies.) If either Keel or Walker joins that reflexively pro-government judicial clique, the state will just win every time.

In the event this faction on the court does just begin to win everything, with no hope for Bill-of-Rights respecting conservatives to influence the process, one wonders: a) will Alcala want to stay on a court which has shifted so far toward a statist mentality? And b) if she did, would the same GOP which chose Donald Trump continue to truck with her? The times they are a-changin' in GOPprimarylandia.

Which brings us to the differences between Elsa Alcala and Sonia Sotomayor, two Latina judges from opposite ends of the political spectrum who both have passionately criticized unfairness and inequity in the justice system. Alcala is a Rick-Perry appointee with a conservative record who has since been elected as a Republican to Texas' high criminal court. But she resides in a political party in which large swaths do not particularly care, for example, about flaws she's observing up close in the administration of the death penalty. And her concerns about habeas corpus writs from poor people with ineffective trial counsel have so far mostly only penetrated among the most attentive appellate lawyers. Such important minutiae lie far beyond the public ken. Indeed, for the most part the public is unaware the Court of Criminal Appeals even exists, much less do they understand the particulars of what it does. By contrast, Sotomayor's SCOTUS work gets a lot more attention and public credit.

Justice Sotomayor is a member of SCOTUS for life, if she wants it. And depending on what happens in November, she may even find new allies on these issues.*** Judge Alcala, by contrast, must face both re-election and the prospect that the court will shift even further against her. Grits is confident Sotomayor will be on SCOTUS for many years, barring accidents or poor health. But Judge Alcala's good work may be a more short-lived blessing. Small-government advocates and civil libertarians should appreciate her while we have her, because you'll miss her once she's gone.

* Keller and Yeary each also had eight concurring/dissenting opinions; no other judge had more than one.
** Yeary, Newell and Richardson were only on the court for eight months of FY 2015, which ended 8/31/15.
*** As long as they don't re-nominate Merrick Garland.

Elsa Alcala's voice in the wilderness on Texas' lack of IAC recourse

Like a black-robed, Latina John the Baptist, Texas Court of Criminal Appeals Judge Elsa Alcala has been openly calling out her colleagues and the Legislature for failing to ensure remedies exist for "ineffective assistance of counsel" claims - in other words, when one's lawyer didn't do their job.

In a series of dissenting opinions, including Ex parte Garcia, Ex parte Pointer, and Ex parte McCuin, Alcala lamented the structural reasons why a) defendants cannot raise ineffective assistance claims on direct appeal and b) when they can raise the claim for the first time in a habeas corpus writ, they are not entitled to a lawyer. To Alcala, this creates a Sixth Amendment crisis. Judges Yeary and Keller have  taken on the task of rebutting Alcala on behalf of a narrow majority. (In this instance, Judge David Newell sided with the government-always-wins bloc on the court, giving them five votes.) TDCAA's case summary described the situation as:

a dispute among the members of the court over how it should deal with applications for post-conviction writs of habeas corpus filed by pro se defendants. Such applications are often incorrectly filed and could be easily corrected by appointed habeas counsel—hence, the dispute that can be more fully explored in several opinions authored by Judge Yeary on one side of the dispute and several opinions authored by Judge Alcala on the other side. The dispute is actually quite compelling but probably only to post-conviction attorneys. For the moment, Judge Yeary’s position is largely prevailing, but stay tuned to the next session of the Texas Legislature to see if that changes.

Grits thinks TDCAA underestimates whether this issue is compelling "only to post-conviction attorneys." In essence, Alcala is calling out a fundamental flaw in Texas' provision of Sixth Amendment right-to-counsel for every indigent defendant under its yoke. Thanks to crises in Louisiana and elsewhere, most of the recent attention paid to indigent defense and public defender offices has related to funding for those services. But ensuring quality is at least as important, and Alcala is complaining that poor defendants whose appointed lawyer did a crappy job effectively have no recourse. She's 100% right.

Here's what's going on: The CCA appoints counsel upon request to inmates filing habeas writs only after the court has voted to grant them a hearing at the trial court level. But defendants have no right to counsel to help write and file the writs in which they seek to convince the CCA to grant such a hearing. So inmates frequently file "pro se" writs with the court, meaning they write them themselves, often by hand on lined yellow legal pads, with no attorney to help them. The court receives thousands such applications every year and, as TDCAA noted, they "are often incorrectly filed and could be easily corrected by appointed habeas counsel." But the CCA majority fears that would open up floodgates and boost their workload.

Who knows, maybe that's a legitimate fear? Texas courts have tolerated (encouraged?) a lot of crappy defense lawyering for quite a while. If all those cases were properly vetted, that would indeed boost their workload in the near term. OTOH, their workload may reduce to the extent that the work goes faster when writs filed by lawyers are "clean," from a legal perspective, and in a word-processed brief format with footnotes instead of a handwritten hodge-podge

Regardless, seriously incompetent lawyering deserves redress. Texas state Rep. Gene Wu, an attorney and former Harris County prosecutor, said to me once that engineers, doctors and lawyers are three categories of professionals who can seriously hurt someone, or even a lot of someones, if they don't do a good job. That observation applies in spades to indigent defense.

There's a sense in which this subject tangentially relates to the funding issues being discussed nationally. In Texas, lawyers making their living representing indigent clients must take excessive caseloads (see here and here) to earn enough to cover their student loan debt, an office, and basic living expenses. Most counties don't have public defender offices and the ones which exist handle a fraction of the total volume of indigent cases. And so most counties underpay appointed lawyers, then they get what they pay for.

Judge Alcala is watching all this occur from the very back end, after the guy with a colorable claim that his lawyer was incompetent has been finally convicted and is sitting in prison with no more appeals available to him. He scrawls out his plea for justice on that yellow legal pad and she can tell that, if the guy had an attorney and had filed the writ correctly, the facts would justify granting the writ. But the inmate wasn't a lawyer so he screwed something up, didn't make all the right arguments, didn't file it right, or on time, or whatever, and the writs are denied without ever considering the merits. Worse, the CCA rules bar the defendant from filing "subsequent writs" on the same topic, so in most cases the fellow's just screwed.

Federal courts have already recognized this problem and now allow Texas inmates to bypass the CCA regarding habeas writs alleging ineffective assistance of counsel. As Judge Alcala wrote in Ex parte Garcia, "Given its recognition that an initial state habeas proceeding undertaken without effective assistance of counsel would effectively deprive Texas defendants of any meaningful review of their ineffective assistance claims, the Supreme Court crafted a federal equitable remedy that would permit such claims to be raised and adjudicated for the first time on federal habeas review." In other words, right now defendants can bypass the CCA in ineffective assistance claims and appeal directly to the federal courts. Alcala's right to take that as a snub - an indication federal courts don't think Texas can handle its business. What's unfortunate is that only she and Judge Johnson, who is about to leave, seem to think the CCA should rectify the problem.

Calling out like a voice in the wilderness, Judge Alcala has boldly and accurately insisted that this stance leaves defendants with no redress at all in Texas courts when their appointed counsel performed incompetently. As with any latter-day John the Baptist, she gets little contemporary credit for this stance. And there are those who would see her head on a platter (picturing Michael Keasler as Salomé's mom). But until that day, she seems intent on speaking her truth and standing up for fairness on these questions, even on occasions when she must stand alone. Bully for her.

Fourth Amendment body blows

The Fourth Amendment has suffered some major recent body blows. We've already discussed how the Supreme Court of Texas okayed cops performing illegal searches in pursuit of asset forfeiture seizures. Now the US Supreme Court in a case styled Utah v. Strieff has essentially said the Fourth Amendment does not protect people who have outstanding warrants for minor traffic offenses. At SCOTUSBlog, Orin Kerr wrote that,

Justice Kagan is right in her dissent that the majority’s approach practically invites police officers to make illegal stops. If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime. The police academies won’t teach officers to violate the law, of course. At the margins, though, officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop. If in doubt, make the stop.

Read in particular Part IV of Justice Sonia Sotomayor's dissent, beginning at the bottom of p. 22 of the pdf. She lays out broader concerns about overarching police power that the narrow case decision didn't reach but which merit serious attention. That remarkable section of her opinion concluded: "We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."

Alcala to SCOTUS: Overturn these two bad CCA decisions

On her Twitter feed, Texas Court of Criminal Appeals Judge Elsa Alcala notes that she wrote dissenting opinions in two of the six petitions being considered in conference at SCOTUS today - Moore v. Texas and Buck v. Stephens - wondering aloud whether the high court would take these cases and potentially vindicate her views.

Here's her dissent in Moore, in which  she focused on the first of the two questions to be considered by the Supreme Court: "Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed"? Alcala was the lone judge to answer "yes" to that question.

The Duane Buck case has received more attention (my neighbor Jordan Smith logged an good article at The Intercept about it) because of the culture war angle: E.g., the New Yorker called the use of disputed racist testimony by Dr. Walter Quijano at the death-penalty trial's sentencing phase "indefensible." Six Court of Criminal Appeals members defended it, though, based on what amounts to a technicality: Other capital cases in which Quijano testified about "future dangerousness" were all thrown out. But in this case, the racist testimony was solicited by defense counsel, not a prosecutor.  Only Judges Price and Johnson joined Alcala's dissent in that one. (See also the brief from William Stephens, director of the Institutional Division at TDCJ, as Respondent in the case, supporting the state's position and Buck's sentence.)

It's unusual to see a judge openly wishing for her colleagues to get reversed. But relationships on the CCA are frayed and tattered from bitter disputes and Judge Alcala is clearly fed up. Here's hoping SCOTUS does her a solid, she's dead right in both these cases.

MORE: Results from the conference are expected to be announced at 9:30 a.m. eastern time Monday morning.

In praise of do-nothing Republicans on SCOTUS nominee

With the nomination of Merrick Garland, whom Tom Goldstein told MSNBC is “to the right of Scalia on criminal justice,” Grits finds himself relieved that Republican leadership in the US Senate has doubled down on its pledge not to confirm him and to let the next president pick. Garland has been praised as middle-of-the-road, which reminds me of Jim Hightower's old comment that there's nothing in the middle of the road but a yellow stripe and dead armadillos.

In recent speeches, President Obama characterized the wrongs embedded in America's criminal justice framework as an urgent problem. For the first time since he was elected, he's been highly visible in recent months visiting prisoners, cops, judges and service agencies. Last fall, he declared:

"...you’ve got a situation where officers of the court, judges, probation officers, U.S. attorneys, pastors, community leaders, business leaders are all coming together saying, what’s the problem we’re trying to solve here?  The problem we’re trying to solve is not just to keep on catching people and putting them back in jail.  The problem we’re trying to solve here is giving people a foundation through which they can then become productive citizens."

With this nomination, the president bypassed the chance to show key voting blocks that Democrats care about more than "keep[ing] on catching people and putting them back in jail." Bad SCOTUS decisions are an important part of the reason America's bloated justice system has expanded to such massive proportions, with extraordinary deference routinely given across party lines to government authority at the expense of civil rights and individual liberties. After this nomination, its hard not to see all the president's touring and talking as little more than an election-year campaign ploy.

And yes, I know there are many other issues out there - like abortion and voting rights - driving this nomination. But advocates on those topics throw criminal-justice reformers under the bus all the time without a second thought. That's a big reason why things have gotten so bad: There are reformers on both sides of the aisle, but both parties consider justice reform among their lowest priorities. So, over the years, Grits has reached the point where I prioritize my issues over theirs, because otherwise, who will? Clearly not Barack Obama.

If "right of Scalia" is what a Democratic nominee looks like, maybe we'll get better from President Trump.

MORE: Here's a more fully developed version of this critique. AND MORE: Also here. And here.

On 'Cops in Lab Coats,' the pitfalls of basing police practices on Jonah Hill, Wallace Jefferson for SCOTUS(?) and other stories

Before the day's family festivities begin, here are a few items which deserve Grits readers' attention but haven't made it into independent posts:

The case for raising the age of criminal culpability based on Pearland ISD cops mimicking Jonah Hill movies
Dan Solomon at Texas Monthly described an 8-month undercover sting at Pearland ISD and the episode's idiotic if inescapable similarities to the 21 Jump Street franchise, comparisons to which consumed national media coverage about the event. Playing the killjoy, Solomon framed the issue in terms of Texas' "raise the age" debate, declaring: "It’s frightening that a high school junior who hasn’t committed a violent crime (none of the charges in the sting are for violent crimes), might find himself or herself facing time in an adult facility designed to imprison violent criminals. And that prospect is only thrown into relief when we’re all laughing about Channing Tatum and Jonah Hill."

No room at the inn for civil commitment offenders
As the state struggles to find housing for civilly committed sex offenders, the Texas Senate Criminal Justice Committee prepares to hear legislation on Tuesday, elaborated in detail by guest blogger Nancy Bunin in this Grits post, to revamp the program. Jefferson County Commissioners blocked using a facility in Beaumont. Even the private prison companies don't want them. The Geo Group "said in a statement that its mission 'no longer aligns' with housing" this cohort.

Casey: Wallace Jefferson for SCOTUS
Long-time columnist Rick Casey poked his head up out of retirement to suggest a potential dark horse nominee for US Supreme Court, should there be another opening: Former Texas Supreme Court Chief Justice Wallace Jefferson, who Casey rightly speculated is somebody who could actually be confirmed by the Republican-controlled US Senate. Rick Perry has already named Jefferson twice to Texas' high civil court, first as a Texas Supreme Court Justice, then as its Chief Justice. So it's intriguing to imagine that Barack Obama might consider a high-profile Rick Perry appointee for SCOTUS. Indeed, while a longshot, it's not entirely outside the realm of possibility that Jefferson could ascend to the court with either man as president. Where do I get my "Wallace Jefferson for SCOTUS" bumper sticker?

Justice Kennedy: Corrections system misunderstood, broken
Speaking of SCOTUS, when asked this week about prison overcrowding while testifying before a congressional budget subcommittee, Justice Anthony Kennedy took the opportunity to expound on prison policy, declaring, “The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government.” “In many respects, I think it’s broken,” lamented the 78-year old Reagan appointee.

'Cops in Lab Coats'
According to this press release, "University of Houston Law Center (UHLC) Professor Sandra Guerra Thompson argues in her released new book. 'Cops in Lab Coats, Curbing Wrongful Convictions through Independent Forensic Laboratories' is published by Carolina Academic Press."

Of glitter bombs and bathroom blues
The Texas Tribune provides balanced coverage of an unbalanced issue: Legislation to criminalize using the wrong restroom, honing in on Rep. Debbie Riddle's legislation highlighted by Grits back in February. The story doesn't mention it, but there's little doubt these bills were the proximate cause of the representatives' district office receiving a "glitter bomb" last month. Her bills have been referred to the State Affairs Committee which is chaired by Byron Cook, a notably open minded Republican when it comes to civil rights for gay people. Grits continues to believe that, if Riddle's bill criminalizing business owners who let someone use the "wrong" restroom were to pass, it would foster the unintended but entirely predictable consequence of rapidly promoting unisex bathrooms to avoid civil or criminal liability. This one's a "be careful what you ask for" moment. I'm not sure everybody has thought this through.

More arrests over faked police training
Arrests warrants for the Hill County Sheriff and three of his employees were issued recently alleging they falsified training records based on an investigation by the Texas Commission on Law Enforcement, adding to a growing list. Grits' belief is that these cases argue for the sort of independent prosecution of police misconduct (by the AG or a special prosecutor) discussed in Reps. Dutton's and Reynold's bills recently at the Lege. Local prosecutors have strong disincentives not to prosecute cases where faked training may endanger the credentials of large numbers of officers in a department - the same folks who are witnesses in all their cases and who they work with every day. In cases like these, it makes more sense to separate that function from local politics.

Dumb dog, why are you following me? SCOTUS to decide if cops can prolong traffic stop for a dog sniff

'You're the most presumin' dog that a human could know'

"[O]ne of the most shared experiences in our national culture is being stopped by the police while driving," wrote Rory Little at SCOTUSBlog, in an excellent summary and preview of oral arguments in Rodriguez v. United States, heard yesterday, which aims to decide whether a traffic stop may be prolonged without suspicion for eight minutes so a drug dog can be brought to the scene for a sniff.

Grits has long considered the nexus of issues surrounding drug-dog sniffs to be perhaps the most schizophrenic area of constitutional law: The Court has frustratingly insisted that dog sniffs aren't a "search" at your car on the side of the road but they are a search on the porch in front of your house. As search tech advances - there are numerous sensors that could mimic the dog's at-a-distance non-search search - the potential negative consequences from this outcome-driven approach become more severe. This case would be an excellent opportunity to bring the practice to heel. (Ba-dum-bum; insert mandatory audience groan here.)

Little's two pieces provide an excellent snapshot, ably presenting the legal posture of this pick-em case and its predecessors; give them a read. Here's the transcript from oral argument. MORE: See coverage from the Courthouse News Service and Bloomberg News. Reason highlighted this tidbit from Justice Sotomayor.