What the jury didn't hear, against SWAT raids for routine search warrants, bail explainers, courthouse architecture, and other stories

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

Margaret Moore, Rosa Jimenez, and what the jury didn't hear
Weird comments from Travis County DA Margaret Moore on the Rosa Jimenez case in The Appeal: “There is an ultimate fact question that was resolved by the 12 men and women who actually saw all the evidence and heard opinion testimony,” Moore told The Appeal. “Everything after that is opinion by people who were not in that courtroom.” But here's the thing: The reason four judges have now said Jimenez is likely innocent and should be released is that the jury heard false, un-rebutted expert testimony that biased their view. When judges looked at all the same evidence, and also evidence to which the jury wasn't privy rebutting junk science in the case, they said Rosa didn't do it. So jurors didn't consider all the evidence. That seems disingenuous. (See prior Grits coverage, and listen to a segment on the case on the latest Reasonably Suspicious podcast, plus coverage from a Travis DA Democratic candidates forum over the weekend.)

Use of SWAT raids for routine search warrants creates needless risk
The practice of using SWAT tactics to execute routine search warrants continues to result in unnecessary deaths. A Waller County man was killed in a SWAT raid by police who wanted to seize a computer (someone else's) over alleged possession of child pornography. Can it really require a no-knock raid to seize a computer? This was unnecessary; the man's death was much more a predictable policy failure than it was an accident.

Fewer inmates beaten up more often at TDCJ
Recent inmate deaths at the hands of guards in Texas prisons highlights that use of force by staff has increased dramatically in recent years, reported the Texas Tribune, even as the number of inmates supervised declined and eight prison units closed.

Whistleblower gaining momentum in Sheriff's race
Liz Donegan, the Austin PD whistleblower who was removed as head of that agency's Sex Crimes unit because she wouldn't improperly classify cases as "cleared," is now running for Travis County Sheriff and, remarkably, earned the Austin Statesman's endorsement. Although Donegan was removed from her Sex Crimes post during Chief Art Acevedo's tenure, current Chief Bryan Manley earned ownership of the topic by blaming data errors on victims when the story came out. Him having her as a Sheriff-to-Chief peer would be deliciously awkward.

Bail explainers
Egged on by police, the Dallas Morning News has been blaming Dallas County DA John Creuzot for failures in the legacy bail system. But when they tried to do that in front of the City Council, staff gave everyone a primer on who is in charge of setting bail in Texas: Judges, not prosecutors. In Harris County, a judge demanded an explanation from prosecutors on why they blamed her in the press for a violent criminal's release when they'd never informed her of the details. Meanwhile, at the Paris News (TX, not France), a local reporter offered better explanatory coverage of the bail system than the Dallas News has yet.

Travis County judges dip toes in bail-reform waters
Travis County judges are saying they want to implement bail reform, including requiring defense attorneys at magistration, despite opposition from Travis County DA Margaret Moore. But the Texas Fair Defense Project and their allies say there would still be too much delay before release under the new proposal, and called for changes to the draft. Still, judges taking leadership on this is heartening news. They'd mostly dug in their heels before now.

No extra prosecutors for you, Kim Ogg
For the Harris County Commissioners Court, turning down District Attorney Kim Ogg when she asks for more prosecutors has become habit forming.

Houston crime lab to use disputed DNA mixture software
The Houston Forensic Science Center has begun using STR-Mix software for analyzing DNA mixture evidence. But last fall, a federal district judge in Michigan excluded such software from evidence after a "Daubert" hearing. DNA mixture analyses have been fraught with error for many years. Under the Michigan judge's ruling, based on recommendations from President Obama's forensics commission, STR-Mix software may be used when a) there are no more than three contributors and b) when DNA from the target makes up at least 20 percent of the sample. No word if HFSC intends to abide by those limitations.

Cherry picking data for scary headlines
The Austin Statesman issued a story with the headline: "Violent crimes with homeless suspects, victims went up in 2019, data show." The big news was that reported violent-crime incidents in the city increased by one percent last year, with a small increase attributable to the city's homeless population. What they didn't say was that Austin's population has been growing by 2-3% annually, so the rate likely decreased! Austinites were less likely to be victimized by violent crime last year than the year before. Why wasn't that the headline?

Defending Austin's federal courthouse architecture
The Department of Justice wants all federal courthouses to look like Roman temples and specifically criticized Austin's federal courthouse as an example of what they don't want. But I really like the federal courthouse in Austin. I was there recently for a hearing in the Rosa Jimenez case, then later to retrieve audio from the clerk. It's incredibly well-designed, with much more natural light and customer-friendly arrangement than most of them. Here's more on the Austin courthouse's architectural approach.

Fines and fees
Two essays on fines and fees for you:

• Marshall Project: The True Cost of Court Debt
• The Hill: Fees, fines, and the ability to pay

'Doing justice isn't left, it's right'
The Texas Public Policy Foundation's Marc Levin thinks progressive prosecutors are mis-labeled.

Public policy responses to informant abuses

 Two informant related stories recall a raft of snitching coverage on this blog, now mostly more than a decade ago.

First, our pal Pam Colloff has the story of a Texas man turned professional snitch, including four death penalty cases, on the NY Times magazine cover this Sunday. Pam has created a newsletter associated with the 13.5k-word story, sign up to receive followups and updates.

Also, Keri Blakinger tweeted out documents showing that Officer Gerald Goines told Houston PD investigators in February that there was no confidential informant in the Hardin Street case, as he had declared in an affidavit justifying a no-knock warrant. Two homeowners died and four officers, including Goines himself, were injured because of those lies.

Long-time readers may recall that Grits extensively covered informant-related policy issues for several years, and in 2006 offered these top-line reform suggestions:

Corroboration: In the Bible, both Mosaic Law and New Testament writings demand that no one be judged guilty of a crime on the uncorroborated testimony of a single witness. Without going that far (though I'm willing if the Legislature is), it makes real sense to require corroboration for all testimony by witnesses who receive incentives, especially cash or reduced sentences for their own crimes. (After innocent people were framed in drug stings in Tulia and Hearne, the Texas Legislature in 2001 enacted a requirement for corroborating informant testimony in drug cases.) 

Reliability hearings: In civil cases, judges decide in reliability hearings whether expert witnesses with long lists of credentials may testify as experts. New statutes should require similar pretrial reliability hearings to ensure a judge deems an informant credible before a jury hears their testimony. 

Supervisory controls: All conversations between police and informants should be recorded. Alternatively, officers should only interview informants in pairs. Informants who will be used on more than one case should be interviewed by a supervisor, and more detailed statistical and other documentation about informants and their activities should be required. More supervisory check-offs on payments to confidential informants are needed, and payments above a de minimus amount should only be made in the presence of supervisors. These ideas could all be implemented administratively at the department level without changing the law. 

Right to counsel: Informant agreements are essentially informal plea bargains. Informants whose culpability for their own crimes will be reduced or prosecution avoided should routinely be afforded a right to an attorney before entering into a "snitch" agreement, just as though they'd been charged with a crime. These "contracts" are generally one-sided and may even obligate informants to commit crimes in which they wouldn't otherwise engage.

Texas has done more than many states to rein in informant abuses. In 2001, Texas required corroboration for drug informant testimony to secure a conviction. In 2009, the corroboration requirement was extended to jailhouse informants. In 2017, the Legislature required prosecutors to track informant use more closely and to disclose informants' histories to the defense. Other reforms, like then-Sen. Rodney Ellis' SB 260 from 2009, which would have required reliability hearings for incentivized informants, never got off the ground.

As far as this blog goes, once I was no longer employed to work on police accountability, Grits moved on to other topics (e.g., innocence, and later, decarceration). But at one time, Grits wrote quite a lot about informants. See prior, related coverage below the jump:

On the dangers of dick-ish drug enforcement, racist cop rose in Austin PD ranks, indigent defense denied in Amarillo, and other stories

Just in time for the drive to Grandma's house, here's the November 2019 episode* of Just Liberty's Reasonably Suspicious podcast covering Texas criminal justice politics and policy, co-hosted with Amanda Marzullo of the Texas Defender Service.


In this month's episode:

Introductory tomfoolery

• ¡Poncho!

Top Stories

• Houston PD narcotics division a black hole of bad practices (2:32)
• Federal judge defines limits of DNA mixture software (8:54)

Fill in the Blank

• Victoria County Jail death from drug withdrawal (16:25)
• Racist Austin PD assistant chief outed, what's next? (21:01)
• Indigent defense shortchanged in Amarillo (24:50)

The Last Hurrah (29:30)

• Denouement of Harris County bail litigation
• Why Greg Abbott owns a homeless camp
• Rodney Reed execution stayed

*N.b. It really is the November episode, despite my embarrassing screw up in the intro to say it's June. 

Find a transcript of this episode below the jump.

Oklahoma! (does #cjreform); HPD raid response doesn't address phony informant; why do probationers die at high rates? And other stories

Here are a few browser clearing odds and ends:

One out of 8 Travis County jail bookings in 2018 was for Class C misdemeanors
In Travis County last year, more than 5,000 people were arrested for a Class-C misdemeanor only - about one out of every eight people booked into the county jail. Between the Freedom Cities ordinance restricting Class C arrests, beginning in January, and the elimination in June of the local no-sit-no-lie ordinance aimed at the homeless, those bookings should decline significantly for 2019.

Post-raid HPD reforms don't address faked informant that got 4 officers shot and killed 2 innocent people
After a no-knock drug raid in Houston this spring killed two innocent people and left four officers shot, HPD Chief Art Acevedo has announced he's creating a special division of the narcotics unit to execute search warrants in drug cases. But as I told the Houston Chronicle:

“His reform is not on point to what caused the problem,” said Scott Henson, policy director with the criminal justice reform nonprofit Just Liberty. “It’s not solving the problem that your investigators are relying on fabricated informants — [it] wasn’t a function of who’s doing the raid, but why you’re doing the raid, and the reliance on this informant, who it turns out didn’t exist. That’s what caused everybody to get shot. It just elides the core issue of what really happened.”

Attacking junk blood-spatter evidence
Check out an amicus brief arguing to disallow blood-spatter evidence in the Joe Bryan murder case that was the subject of Pam Colloff's massive NY Times Magazine/Pro Publica feature. In it, Duke law-school faculty and students argue that, based on current standards, the blood-spatter expert in Bryan's case could not today testify to the main points used to convict him.

Not so natural after all
His death in the Victoria County Jail was attributed to "natural causes." It turns out, he was denied his methadone prescription and died from preventable withdrawal symptoms. Read the excellent Victoria Advocate account from Kali Venable. See also the Advocate editorial board's condemnation of using jails and prisons to treat addiction.

"Power concedes nothing without a demand ..."
"... it never has, and it never will," said Frederick Douglass. So Grits doesn't feel too bad that elected officials in Austin consider criminal-justice reformers excessively pushy, as several implied in this Austin Statesman article about a string of successful, capital-city #cjreform campaigns. Nobody was going to do any of those things if reformers said "Pretty please" and then waited politely for a response.

Own it!
Gov. Greg Abbott's intervention into Austin's homelessness crisis means he now owns the issue. If it isn't solved, it's his fault. Not sure that was the wisest political choice, but it's the one he made. MORE: Now the governor "owns" his own homeless encampment, with neither a budget line item nor any apparent exit plan besides providing still hypothetical services to Austin's homeless ad infinitum. That'll teach 'em! 

Why do probationers die at high rates?
Here's a possible, future, Suspicious Mysteries segment for the Reasonably Suspicious podcast: Grits has long been aware of research showing incarceration in prison reduces life expectancy. But a new study shows that being on probation is associated with a much higher morbidity rate than being in prison or jail, much less in the free world. I don't know how to parse these competing claims. One one hand, while prison healthcare isn't great, being in prison makes it easier to treat chronic conditions because the patient is always available and can't easily decline treatment. On the other, prison can make you sick; e.g., people who contract Hep C in prison  may suffer liver failure later, once they're out. Meanwhile, to the extent criminal laws in general target the poor, the developmentally disabled, substance abusers, the mentally ill, minority communities subject to discrimination, etc., it's not surprising probationers would be an especially sick lot. Or maybe the difference is that people in prison aren't at risk of dying from car crashes! Who knows? Grits would like to better understand this nexus of corrections, health, and morbidity rates. I haven't yet wrapped my head around it. When people die in prison or jail, there is an independent investigation; no one investigates when probationers die, so outside of the above-linked study, we don't have very much information at all regarding why that is.

The Probation Trap
Probation as an institution changes its form and purpose depending on the angle from which one looks at it. Viewed one way, it diverts people from prison. Viewed another, it's a net-widening trap. The Philadelphia Inquirer has published an excellent series expounding the latter view. Via SL&P.

Oklahoma!
As much as it pains me to say so, Oklahoma has now definitely out-paced Texas as the red-state poster child for criminal-justice reform. Also via SL&P:

• Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"
• US News, "Oklahoma Focuses on Criminal Justice Reform"
• Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

On the ground, #cjreform is not really a red-state-blue-state issue.

When smelling pot is pretext for a search
In Philadelphia, police officers who said they searched a car because they smelled marijuana were extremely unlikely to find any and disproportionately searched black people. When the data was gathered, public defenders argued that "the odor of marijuana [should] no longer be considered probable cause for officers to believe a crime has occurred and conduct a search."

Breathalyzer tests as junk science
The New York Times took a trip down the rabbit hole of DWI breath-test forensics. Like DNA mixture software, analysts treat breathalyzers as a magical black box they simply assume supplies reliable results. The problems, however, have been long known.

'Five facts about crime in the U.S.'
Read this from the Pew Research Center.

Reasonably Suspicious, June 2019 episode: 2019 #txlege roundup, Dallas cops' racist Facebook posts, and are 'progressive prosecutors' really a thing?

Here's the June 2019 episode of Just Liberty's Reasonably Suspicious podcast:

In this month's episode:

Top Stories

• Dallas cops' racist Facebook posts
• Texas Legislature a killing field for reform legislation

Fill in the Blank

• Texas Supreme Court: DAs can order prosecutors to violate constitutional rights
• Bail-reform died, and that's a good thing
• Should Texas prisoners all become plumbers?

Discussion: Are progressive prosecutors really a thing?

The Last Hurrah

• Red-light cameras abolished, will debts be erased?
• Colorado, Oklahoma surpassing Texas on #cjreform
• Evidence left behind after Houston SWAT raid

Find a transcript below the jump.

Reasonably Suspicious podcast: Harris commissioners nixed DA hiring request, and other stories

The Harris County District Attorney can't hire more prosecutors, the Houston PD can't find the informant behind a botched SWAT-style narcotics raid, and the chairman of the House Corrections Committee can't understand why local government spends so much money jailing people. My co-host Mandy "Tiger" Marzullo and I discussed all this and more in the better-late-than-never February episode of the Reasonably Suspicious podcast:


Here's what we discussed on the show this month:

Top Stories

• Harris County rejects DA request for new prosecutors (2:15)
• Houston PD can't find informant behind botched, deadly SWAT raid (8:00)

Interview
House Corrections Committee Chairman James White (14:30)

Data Corner
Conversation with Just Liberty's Chris Harris about Class C misdemeanors (21:00)

The Last Hurrah (31:38)

• Texas jails and prisons gathering voiceprint data from inmate phone calls
• Long lines at DPS staffing centers
• Guard salaries, A/C, and staff turnover at TDCJ

Find a transcript of the podcast below the jump.

Houston PD will end most no-knock warrants after botched drug raid

"The no-knock warrants are going to go away like leaded gasoline in this city," declared Houston Police Chief Art Acevedo at a town hall meeting after police killed two people (along with two dogs) and four officers were shot while serving a search warrant, reported the Houston Chronicle.

The chief said he no longer "sees the value" in such raids, which were criticized earlier this month in a Texas Monthly story. In the future, said Acevedo, HPD won't use the tactic in most instances, and in the rare cases it is needed, it will require his personal approval.

That would be a big deal if he follows through with it. Here's hoping the announcement isn't just a short-term media stunt. Indeed, one hopes the Texas Legislature might look at requiring chief-level sign off for all "dynamic entry" episodes. God knows, this is an issue statewide, not just in Houston.

SWAT-style raids aren't the only policy area where reforms are implied by this clusterf&#k. Grits earlier identified an open-records exemption that keeps police misconduct secret at HPD. And Acevedo declared the department would roll out a new body-camera policy in the coming weeks. Officers in the raid weren't wearing bodycams and the incident wasn't recorded.

Finally, reforms are needed in the murky world of undercover drug enforcement. There probably needs to be more internal monitoring of informants used to secure search-or-arrest warrants, including keeping records of whether their information holds up. Another needed change: informants should be afforded a right to counsel whenever police use them to make cases against others. That would both protect them from having their rights abused, and provide a barrier to police faking informant testimony to secure probable cause, as allegedly occurred in this case.

Eleven unanswered questions about the botched police raid in Houston

Four officers were shot and two suspects and their dog are dead after a botched narcotics raid in Houston. Friends and family of the deceased say they were innocent victims. Obviously, I hope all the officers recover. But having watched this play out in the press for several days, Grits has questions.

Here's the background: According to the search warrant, police claimed they sent a confidential informant into the home who had assisted in 10 or more prior investigations, all of which had led to arrests and seizures. They searched the CI, gave him cash, and allegedly watched him go into the home in question. He came out with brown heroin in a bag, telling police he'd seen many other bags of heroin and a 9mm pistol. The officers placed the home under surveillance until they could get a warrant.

Problem is, they found no bags of heroin. There was no 9mm pistol. But when the narcotics unit (not a SWAT team) entered the home at five in the afternoon, announcing themselves as the battering ram broke the door down, there was an angry pit bull facing them that an officer immediately killed with a shotgun blast. At that, one of the homeowners returned fire, and an intense gunfight occurred.

The homeowners didn't have a 9mm, but they did have shotguns and a .357 Magnum, and they responded to the home invasion the way many gun owning Texas homeowners brag they would. Maybe they were violent criminals trying to kill police, but they could also have been unwitting victims of a lying informant who didn't understand who had broken down their door and shot their dog.

That's the first question: Were these people heroin dealers? The available evidence says no, and regrettably, they're not around to defend themselves against the allegation. Their neighbors told reporters they almost never had visitors, and their friends and family adamantly deny the charge. Cocaine was allegedly found on the scene, but one bag, at user levels. And the multiple bags of brown heroin and 9mm weapon alleged in the search-warrant affidavit were nowhere to be found.

So the second question is: Where did the informant get the heroin? Police claimed they followed best practices, searching the informant beforehand and watching him go in and out. The couple couldn't have moved it because police had the house under surveillance. And they'd have seen if there'd been enough customers for all the volume to deplete. So if the informant brought back heroin, where did it come from?

Third question: Is it plausible that this couple would sell smack to a CI sent to their front door whom they'd never met before? Something there doesn't add up.

Fourth question: Will the Conviction Integrity Unit at the Harris County District Attorney's Office now review those 10+ cases using this informant in the past? If he lied about this couple selling heroin, what else might he have lied about?

Fifth question: HPD claimed they raided the home for safety reasons because they knew there was a gun inside (even though they had bad information about that; there was no 9mm). But given the outcome, was it really safer? It was 5 p.m., so they were awake. Mightn't the outcome have been better if they'd just knocked on the front door?

Sixth question: Should police use "dynamic entry" to execute search warrants every time there's reportedly a gun in the home? There are probably guns in half the homes in Texas! Relatedly, if you're afraid someone might shoot at you when you break down their door, why not just wait outside for them to come out? The house was already under surveillance.

Seventh question: Were these narcotics officers sufficiently trained to perform a dynamic entry? There's a subsidiary question: why wasn't a SWAT team used? After his wife and dog had been killed, the husband, a Navy veteran with no criminal record, snuck out the back and opened fire on the officers from behind, the Houston Chronicle reported. This was a basic tactical error - someone should have been manning the back door. Also, such raids are frequently conducted pre-dawn to minimize the chance suspects will be awake and shoot back. This one was performed at five in the afternoon. So did these narcotics cops just not know what the hell they were doing?

Eighth question: Could they have raided the wrong house? The search warrant affidavit says police watched the informant go into the house and come out with drugs, then watched it until they raided it. But what if that's a lie? What if the informant merely told an officer the address of the house, and got it wrong? Otherwise, where is the heroin?

Ninth question: How much was the informant paid for this service? What is this person's background? How much was s/he paid in the past, and for what services? An officer vouched for the person in the search warrant affidavit, what was their relationship? It's okay to tell, the person can never be used as an informant again.

Tenth question: Chief Art Acevedo said neighbors thanked police for taking out a known drug house. But reporters interviewed every neighbor they could find and everyone said these were quiet people who seldom had visitors, loved animals, and kept to themselves. Why weren't those grateful neighbors corroborating the chief's claims to reporters?

Eleventh question: Why does Fox and Friends give union boss Joe Gamaldi a platform? The guy's a blowhard.

For more commentary on some of the implausible aspects to this story, see Reason's Jacob Sullum here and here.

MORE: On Twitter, someone suggested another excellent question: "Who shot who?" It was said the wife was shot when she lunged for a downed officer's shotgun after her dog had been killed. Does that mean she was unarmed at the time and the husband did all the shooting? Were any of the police injured by friendly fire?  Who shot who is an excellent question.

UPDATE (2/15): We're starting to get a few more answers. The informant may not exist, reported the Houston Chronicle, and police officers used heroin already in their possession to claim they'd performed a controlled buy. The narcotics officer who signed the warrant, Gerald Goines, from his hospital bed named two informants who may have performed the controlled buy, but both denied participating when questioned by investigators.

In the original warrant - the one used to justify the raid - Goines wrote that he watched the buy and, along with [Steven] Bryant, identified the substance as heroin. But when investigators went back to talk to Bryant, he admitted that he'd actually retrieved two bags of heroin from the center console of Goines' car, at the instruction of another officer. 

Though he then took the two bags of drugs for testing to determine that they were heroin, he eventually admitted that he had never seen narcotics in question before retrieving them from the car. That, the investigator noted, contradicts the search warrant affidavit filed before the raid, which indicates that Bryant "recognized the substance purchased by the CI as heroin."

Taking cops off point on mental-health cases, commissary questions, a $7 million-plus AC bill, and more

Let's clear some browser tabs with a roundup of items which merit Grits readers' attention even if I don't have time to construct a full blog post around each of them:

Blood will tell you more
Following Pam Colloff's masterful two-part story on faulty blood-spatter evidence, ProPublica has launched a special newsletter in which she's following up on the articles and providing more context. You can sign up here. Teaser: In the upcoming, August episode of the Reasonably Suspicious podcast, we'll air an interview with Colloff about her story and the state of forensic science in Texas and beyond. Look for that in about three weeks. (You can subscribe to the podcast on iTunes, GooglePlay or SoundCloud so you don't miss it, and until then check out the July episode.)

Cornyn praises promising pilot on mental-health diversion
Grits is excited about the pilot program at Dallas PD praised by US Sen. John Cornyn in this Dallas News article. They're sending out interdisciplinary teams led by mental health workers to respond to 911 calls related to mental health crises, with cops participating as backup and support as opposed to shot callers. Not only are there better outcomes for mentally ill folks, it saved money and resources: Under the program, "of the 709 mental health emergency calls fielded since January, just 3 percent ended in arrest." In fact, "In the first three months of the program, the clinician's diversion of calls saved the police force about two weeks of salaried work."

Police are asked to handle too many social problems and mental health is one of the biggest. For the most part, the issue needs to be taken out of the hands of law enforcement and jailers and re-center the response around healthcare needs and social services, instead.

Commissary Questions
Earlier this year, the Prison Policy Institute (shoutout to their new employee, Texan Jorge Renaud) published a report titled, "The Company Store" about prison commissary economics. Now, they have some specific, commissary-related questions for the Texas prison system, including why Citibank would receive more than $6 million in commissary funds in a year and pertaining to the wisdom of collaborating with certain vendors using dubious financing methods that arguably short-change inmates. Legislators on committees overseeing the prison system may want to dig into this.

A $7 million AC bill and climbing
After spending $7 million on legal fees fighting against providing air conditioning to at-risk prison inmates during the summer, TDCJ is now beginning to do so, reported the Texas Tribune. This raises the questions: How much will TDCJ ask the Lege for air conditioning? How much will the Legislature give them? And will that be enough, or will more litigation ensue? Tune into the 86th Texas Legislature in 2019 to find out!

Marijuana not only issue where TX political parties agree
We've seen media coverage of the fact that both Texas political parties included some form of marijuana reform in their state party platforms last month, with pundits opining that the development makes passage of reform legislation more likely. But nobody in the MSM has discussed other points of agreement in the platforms on either criminal justice or other issues facing the state. On all those issues, the same analysis applies: Bills where both party platforms agree arguably begin the process with a leg up. It doesn't guarantee they'll pass, but it's a potent expression of an issue's potential.

Framing of inmates spurs renewed calls for TDCJ overight
Recent indictments of TDCJ staff who set up inmates in a fake discipline scam have renewed calls for independent oversight at Texas' prison agency, reported the Texas Tribune. Whatever form oversight takes, it's inarguable that having all your watchdogs report to the same board - as TDCJ does - gives an appearance of conflict and almost certainly creates actual ones. The system isn't adequately policing itself.

Four years waiting on trial from no-knock raid shooting
A Killeen man, who thought he was responding to a burglary, shot and killed a police officer when they executed a no-knock raid on his home four years ago and is still awaiting trial, with no denouement in sight. His attorneys have been ready for trial for some time, but the state has yet to press forward, leaving him sitting in jail while he waits. RawStory has a report.

DWI drylabbing allegations
A DPS lab analyst in El Paso, who in the past was caught allegedly falsifying drug weights, cutting and pasting data from other samples, has again been accused of dry labbing, this time failing to conduct tests on 22 DWI samples and cutting and pasting results from other cases. DPS said the error was unintentional, but its quality control reviewer saw the problem and didn't catch it. When samples were retested, the analyst combined good data with bad. She and the technical reviewer who approved her work are no longer with the agency.

Documenting the 'trial penalty'
The National Association of Criminal Defense Lawyers has a new report out on the extent of the "trial penalty" in federal court when defendants refuse to accept a plea deal. In related news, the Washington Post has an item on a juror speaking out against harsh, mandatory federal sentences, and conservative columnist George Will authored a piece on the topic.

'Misdemeanorland'
A new book addresses "Criminal Courts and Social Control in the Age of Broken Windows Policing." Check out a review.

Paltry Grits posting rate masks busy time at #txlege

For readers disappointed with the paltry recent posting rate here on Grits, I should mention that most of my writing these days is happening on Just Liberty emails and action alerts. If you haven't signed on to our advocacy list, please do so. Otherwise, here are a few odds and ends which merit readers' attention.

Good Samaritan bill up in House committee
Rep. Ryan Guillen's Good Samaritan legislation (HB 73) is up on Monday in the House Criminal Jurisprudence Committee, but the biggest threat to its passage remains uncertainty about Gov. Abbott, who vetoed the bill last year and is now moving the goal posts regarding his concerns. This is a major public health concern. Overdose deaths are now twice as common in Texas as murders. Go here if you'd like to send a message to Gov. Abbott asking him to support Texas' Good Samaritan legislation.

Debtors prisons and deconstruction of the administrative state

On the same Criminal Jurisprudence agenda Monday, Rep. James White has a great little bill, HB 3279, limiting various debtors-prison practices. Hope to see this one get some traction. Anyone truly concerned with "deconstruction of the administrative state" will want to begin here. See a fact sheet on the bill from Texas Appleseed and the Texas Fair Defense Project.

Sandra Bland Act, DRP, up on Tuesday

Big day in the Homeland Security and Public Safety Committee Tuesday morning, with the Sandra Bland Act (HB 2702) and the most likely vehicle for Driver Responsibility Program repeal (HB 2068) both on the committee's agenda.

Halted execution implicates pair of capital bills
The Court of Criminal Appeals halted Paul Storey's execution last week in a move which implicates a couple of pieces of pending legislation. Prosecutors told the jury in the death-penalty phase of Storey's case that the victim's family wanted the death penalty, which turned out not to be true. Jurors were given faulty jury instructions which HB 3054 by Herrero/Smithee aims to fix. That bill was heard last week in the House Criminal Jurisprudence Committee and may get a vote as early as Monday. Meanwhile, the remaining issues in Storey's case reportedly regard whether Storey's appeals attorney could have reasonably discovered the true feelings of the victim's family about the death penalty. In other words, once again the quality of direct capital appeals are being called into question, which brings us to Corrections Committee Chairman James White's HB 1676 creating a new capital public defender for direct appeals (it'll need a catchier name than that). Maybe it'll turn out Storey's attorney couldn't have known the family's views, or maybe he just didn't ask them. But minimalist investigation and slipshod work product on direct appeal, along with cost effectiveness, are exactly the recurring problems that prompted the East Texas Republican to propose this new office. The appellate process should have vetted these subjects long before now. Storey's case could be a poster child for why these bills are needed.

When innocent SWAT raid victims defend themselves
A Corpus Christi man has sued the police department after a wrong-house SWAT raid in which he shot three officers. He was jailed for two years before being acquitted by a jury. Noted the Caller Times' Krista Torralva, "Police use of no-knock raids have recently come under public scrutiny and Rosas’ case has been included in national conversations. The Washington Post and New York Times wrote about Rosas’ case after his acquittal."

The End of Local Laws
Governing magazine says Gov. Greg Abbott wants to end local laws.

Richard Dreyfuss on Kerry Cook
Actor Richard Dreyfuss discusses Kerry Max Cook with Texas Monthly's Michael Hall. Grits couldn't agree more with Dreyfuss' answer to Mike's final question.

You gotta start somewhere
The Texas Tribune has published a couple of good primers on testifying at the capitol and making your voice heard by lawmakers. Nicely done.

Progress, slow but broad
While some folks understandably express impatience at the slow pace of criminal justice reform, it's easy to underestimate how difficult it was just to stop the upward trajectory of mass incarceration and begin to turn the curve downward. Pew's Adam Gelb describes the baby-step progress made on that front at the state level.

'The siege downstairs': Data needed to regulate SWAT overuse

The Austin Statesman's Tony Plohetski had a great story over the weekend about the use of no-knock raids by the Austin PD SWAT team. The story provides a compelling example of SWAT excesses, but we'll need for SWAT raids the kind of data Texas has begun to require on police shootings before it's possible to make valid, systemic critiques of SWAT or propose sweeping solutions.

Plohetski features a case of a raid on the home of a teen living with his parents. The kid was reportedly selling pot and had legally purchased an AK-47 for protection after an attempted robbery at the house. Reported Plohetski:

The teen, who later told detectives that he didn’t know the intruders were police officers and feared for the safety of himself and his family, began shooting with an AK-47, striking an officer in the leg. The family’s dog was killed in the carnage.

And, in the end, the massive operation yielded minimal reward: Officers recovered 1.2 ounces of marijuana. ...

The incident raises questions about the use of risky military-style tactics by municipal police, occasionally for lower-level offenses. The issue has been part of a national policing conversation for several years, but the case illustrates how Austin police deploy SWAT resources in what some critics say is a troubling trend.

A little more than once a week, on average, generally under the cover of darkness, heavily armed Austin officers force their way into a home in search of evidence to help build cases. The majority of such cases involve suspicion of narcotics.

Grits has given these questions some thought and research over the years and at every turn one immediately runs into the same problem. Anecdotes are easy to find but there's almost no data available to analyze SWAT-related issues. Radley Balko made the most valiant effort to date. But at the end of  the day, you can't manage what you can't measure, and policymakers have no metrics for confronting these sorts of police militarization issues.

Grits would like to see reporting by police agencies regarding SWAT deployments the same way the Texas Lege last year required them to report police shooting episodes to the Attorney General. Make me Philosopher King and for every SWAT deployment, police would be required to report the reason for deploying a SWAT team rather than another police engagement strategy, the underlying alleged offense, the number of officers deployed, whether the suspect was present when the raid occurred, any special equipment deployed including flash-bangs, whether there was damaged property due to the use of SWAT equipment (preferably with photos), whether use of force was used, whether contraband was confiscated, and whether there were any arrests. That would go a long way toward remedying the present information imbalance.

Once data collection has been in place for a time, we'd have a much better grasp on the scope of SWAT-related problems. Right now, the debate tends to grope around in the dark. If you're anti-SWAT you're focused on overkill episodes like the one in the paper; pro-SWAT interests, by contrast, are busy touting the response to the Orlando shootings. But it's not an either-or issue. We need SWAT teams in larger jurisdictions for extraordinary episodes, but there's also a legitimate need to limit mission creep and prevent their use in situations where lesser levels of force would suffice.

One other idea to which Grits keeps coming back: Perhaps judges should provide higher levels of oversight for SWAT warrants? Right now, a judge issues a warrant and cops decide whether to use SWAT, whether to use no-knock tactics, etc.. Why not make them justify using those tactics to the judge? It'd be a small thing, but perhaps it would limit SWAT use in marginal cases like the one portrayed in the Statesman.

There are surely other reforms needed for unfettered and unregulated SWAT programs - and I hope readers will suggest some in the comments - but without more data, the debate remains frustratingly imprecise and one-sided. That's probably the first thing to fix if we truly want to get a handle on the problem.

Suit over reality TV filming warrantless SWAT raid will go forward

A federal judge has concluded that portions of a lawsuit may go forward over allowing reality TV cameras to film a botched 2011 SWAT raid in Montgomery County. The video was released as part of the reality show "Texas Takedown."

The officers allegedly fudged the search warrant affidavit: "After searching the residence and allegedly finding marijuana plants, the officers wrote a misleading affidavit to get a search warrant, which arrived about 12:30 a.m. the next morning." The suit alleges that DA Brett Ligon and his first assistant advised officers by phone to enter the home without a warrant. If true, maybe that needs to be the subject of a state bar grievance.

On 'The Excessive Militarization of American Policing'

National ACLU this week published a new report titled "War Comes Home: The Excessive Militarization of American Policing." (Hmmm, seems like there was a recent book on that topic.) I haven't had a chance to read it yet but thought I'd pass the link along. There appear to be quite a few Texas-specific details and examples in the full report (pdf), for anyone interested. I also found their framing of the issue potentially compelling: "Nearly 80% of the SWAT raids the ACLU studied were conducted to serve search warrants, usually in drug cases. With public support for the War on Drugs at an all-time low, police are using hyper-aggressive, wartime tools and tactics to fight a war that has lost its public mandate." (Wonder how that would test on a poll?) They've even produced a pretty potent passel of short web videos, maps, slideshows, and other online accoutrements supporting its release. Nicely done.

Rare self defense finding by grand jury in no-knock raid resulting in deputy's death

A Burleson County grand jury ruled Henry Magee acted in self defense when he shot and killed a Sheriff's deputy during a SWAT raid on his home based on an informant's misinformed testimony. Turned out, he had a pair of six-inch pot plants in the house, not the large-scale grow the informant had claimed. He will still be prosecuted on drug and weapons charges, says the local DA. See Radley Balko for more.

The episode may portend changes both in public perceptions about personal use levels of marijuana as well as unjustified deployment of no-knock raids. The Bryan College Station Eagle's editorial board called the grand jury "courageous" for their decision, opining that "there was no reason to employ a no-knock warrant on the home of Hank Magee. Officers could have knocked and waited for him to answer. They could have waited until he left his home. There was no advantage in not waiting, in not knocking."

Game warden SWAT team?

Why in heaven's name does the Texas Parks and Wildlife Department need its own SWAT team? Does the guy in this photo look like he's prepared to perform any task you traditionally associate with a game warden? Wrote William Norman Grigg at LewRockwell.com:

The Texas Parks and Wildlife Department (TPWD) has a newly minted SWAT team. To be sure, the agency maintains that this “cadre of specialty teams” will focus on search-and-rescue missions. However, the way Game Warden Cullen Stakes is dressed in the photo above makes it pretty clear that he’s not getting ready to rescue people who have been stranded by floods, or have gotten lost in the woods.

Among the TPWD’s specialized units is the “Scout Team,” a group of 25 wardens who “have received a variety of training and can be used in border operations, dignitary protection, or any form of high-risk law enforcement, such as serving felony arrests or hostage situations,” explains Texas Parks & Wildlife magazine.

“We can have a team anywhere in Texas in four hours, and that’s the worst-case scenario,” boasts Law Enforcement Special Operations Chief Grahme Jones. “A lot of times it’s much faster.”

Ridiculous. There's nowhere in the state where TPWD couldn't call in local SWAT if they needed it. Utterly absurd, and pointless.

'Dallas police are finding drug houses by walking up and asking'

It has long amazed Grits how frequently people - both law abiding folks and criminals - give police consent to search, both at traffic stops and in their homes. The Dallas News has a fascinating story ("Dallas police are finding drug houses by walking up and asking," Aug. 25) about:

Source: Dallas Morning News.

how a 3-month-old “knock-and-talk” task force finds criminals.

The task force is part of a renewed effort to target small-time drug dealers after the department reduced the number of undercover detectives dedicated to investigating low-level drug crimes more than two years ago. Police shifted their focus to larger-scale traffickers, but now they blame petty drug disputes for an uptick in murders this year.

Since the 46-member knock-and-talk task force started in May, its officers have made 509 arrests and seized 131 firearms and 404 pounds of drugs, said Deputy Police Chief Christina Smith, who oversees the narcotics division. The task force also has made 399 possible drug house contacts.

“It’s another way to lower crime and to make good arrests that will end up putting and keeping the criminals in jail,” Smith said.

But some experts say knock-and-talks are risky and may yield only the easiest cases.

The investigations rely mostly on neighbors’ tips about unusual activity. Uniformed officers walk up to front doors and ask for permission to go inside. Police record the audio of the conversations to ensure that they have explicit consent to enter.

Consent searches have sometimes been abused at traffic stops, leading several Texas jurisdictions to require written consent to search. In Austin, after racial profiling reports found significant racial disparities regarding who was subjected to consent searches, the department began to require officers to get supervisors' permission before performing them. Over time, once the low-hanging fruit has been disposed of, Dallas may find similar problems with "knock and talk." It's good that they're using their body mics to record consent, but the department should insist that officers continue recording throughout their interactions.

Still, the dynamic is fascinating. Reported the News, "The shift in strategy caused strife among narcotics officers who think the best way to eliminate drug houses is to make undercover drug purchases." But that case is hard to make given the large number of arrests resulting from the tactic. This method seems to lead to plenty of arrests and has the added benefit of generating more confidential informants who may have information about more high-volume distributors.

Radley Balko has described how ubiquitous the use of SWAT teams has become during the routine execution of search warrants in the war on drugs, but Dallas cops are finding that, if they show up and ask nicely, plenty of suspects will invite them in the front door. Given that reality, couldn't the use of SWAT teams to execute routine search warrants be diminished? It seems like the risks have been dramatically overstated.

KUT interviews Radley Balko on 'Rise of the Warrior Cop'

Austin's KUT-News today interviewed Radley Balko about his new book, Rise of the Warrior Cop: The militarization of America's police forces. Listen to it here.

MORE: This afternoon I went to listen to Balko's speech at the Peaceful Streets Project's second annual summit. Good stuff. In the Q&A I asked what solutions Balko would offer to the problem of police overmilitarization. He referred me to a chapter in his book - and upon returning home I see he could have referred to this recent column - but answered in a nutshell, "End the drug war." He lamented as the applause died down, "that's not going to happen." But as my mama always said, "Can't never could."

Redundant equipment unneeded for Valley SWAT units

Using asset forfeiture funds, the McAllen Police Department has purchased the armored vehicle pictured above on the grounds that, "With 11 gun ports, a rotating turret and room for 10 officers, the modified Ford F-550 will help city police handle high-risk calls." (Aside: 10 officers and 11 gun ports? Do they imagine somebody will be firing pistols with both hands?) Apparently the Hidalgo County Sheriff's similar vehicle, depicted below, was deemed too bulky for in-city use:

The city bought theirs slightly used for $150,000, while the county spent $346,000 in federal funds on their vehicle in 2009. When the county purchased their vehicle, they declared that it "will be available for any law enforcement agency in South Texas to use in hostile situations — should the need arise. We’ll even pay for the gas.” But the city of McAllen had asset forfeiture money burning a hole in their pocket and couldn't resist the redundant capacity.

For whatever reason, virtually every police chief and Sheriff seems to think they need their own independent tactical unit, to the point where even community college PDs are getting into the act. IMO every jurisdiction doesn't need its own SWAT unit and it'd make a lot more sense to staff and equip these units on a regional basis, an idea the McAllen chief has poo-poohed.

Officer wreck offers rare glimpse inside Austin SWAT

The Austin Statesman published a story by Tony Plohetski the other day revealing some interesting tidbits about staffing of SWAT teams after an Austin SWAT member totaled his city vehicle driving home drunk from a football-watching party with fellow SWAT members and other officers ("SWAT officer's wreck spurs changes in elite Austin unit," Dec. 11). Reported Plohetski:

With investigations still pending, department officials said last week that they are already beginning to make changes in the unit's operations.

Effective immediately, SWAT team members no longer will be on call 24 hours a day, seven days a week, year-round, and forced to seek a supervisor's permission to alter that schedule. Instead, every third week, groups of them will be placed on other police duties and won't be on call when not working — giving officers some downtime when off duty.

Assistant Police Chief David Carter, who is the department's chief of staff and a former SWAT team lieutenant, said Hamilton's crash has forced the department to evaluate the unit's stress level and job requirements.

While not excusing the actions of any officer, Carter said, police leaders have already decided team members need a more routine break from the "hypervigilance" that he said police grapple with when they can be summoned to a life-threatening emergency anywhere, anytime.

Hypervigilance aside, in practice it turns out Austin's SWAT team is only activated about twice per month:

The team, which has existed in Austin for at least three decades, has about 18 members, who average two activations a month and arrest about four so-called "high-risk" suspects who often have a history of using weaponry. They often conduct surveillance operations before making such arrests. ...

Members typically work about four days a week, eight hours a day, but also receive an extra eight hours of compensatory time each week for being on call as part of a contract between the city and police union.

That's a lot of officers to devote full-time for two calls a month, especially given the generous provisions in the union contract (I'll bet a lot of officers would be willing to endure such "hypervigilance" in exchange for a four day work week and two deployments per month) and with changes to the unit there will be even more officers on Austin's SWAT rolls. Reacting to the DWI, Austin PD has 

decided that the way the department structures their on-call status needs overhauling.

Carter said that years ago, team members either rotated being on call or had several days of relief. Over time, however, that system has morphed into members always being on call. ...

Under the new system, Carter said, members of the team have been designated to serve in three groups. Two of those groups will be on call while the third has a week of more standard police duties, such as combating hot-spot crime.

Department supervisors will decide the exact locations of those assignments based on need.

Carter said that team members, during that week, would still be allowed to respond to SWAT activations if available, but they would not be required to when they are off duty.

Department officials said that to make up for SWAT members rotating off call each week, they are boosting the size of a backup SWAT team. 

While at one level I agree the staffing changes make sense, I'm also sympathetic to a sentiment expressed in the comments to the story: "So average joe public gets a dwi and is treated like a falling down drunk by pretrial services, alcohol classes and an interlock slapped in his car but apd officers need more downtime. Gotcha. I'm beginning to understand how this works." The officer in question refused a breathalyzer and field sobriety tests, so his drivers license will be automatically suspended. Hard to see how (or why) the department would or could keep him on the force if he can't drive for the next 180 days.

One wonders, since its team is used so infrequently, whether APD might be better off teaming up with the SWAT unit at the Travis County Sheriff (and any other units in the area; in Dallas, constables have SWAT teams, though I'm not aware of that happening in Travis). I'd also be interested to see a breakdown of exactly what types of situations APD's SWAT unit typically responds to and how that compares to other agencies around the state with SWAT units; Radley Balko and others have long lamented the teams' overuse.

Indeed, speaking of Balko and data about SWAT deployments, he mentioned this morning that "you can find the first full year of data from Maryland’s SWAT transparency bill here. [He] wrote about the first six-month report here." That strikes me as a quite useful first step toward evaluating how and how often such teams are used. (As Sherlock Holmes put it, "Data, data, data. I cannot make bricks without clay.") My general sense is there are too many of these units and they're either used too frequently or mostly inactive and a waste of taxpayer dollars, but it would take a more comprehensive analysis to document that hypothesis. This incident provided a rare glimpse into the workings of APD's SWAT unit, revealing just enough to make me think the subject deserves much more systematic investigation.

Longview SWAT team raids wrong home

Radley Balko called it "another isolated incident": In Longview, a SWAT team broke down the door of the wrong home last week in an apparent no-knock raid. The News Journal reported that "officers apparently were distracted by 'known suspects' in front of a home." The real targets were next door - alleged drug dealers who were arrested later the same evening without incident, so clearly in this case SWAT wasn't necessary to capture the actual suspects. In an editorial yesterday, the local paper declared that "local officials could do themselves — and taxpayers — a favor by inviting an outside, totally unbiased agency to come in and do their own investigation."

As Balko wrote in the executive summary to a white paper for the CATO Institute on the subject in 2006:

These increasingly frequent raids, 40,000 per year by one estimate, are needlessly subjecting nonviolent drug offenders, bystanders, and wrongly targeted civilians to the terror of having their homes invaded while they're sleeping, usually by teams of heavily armed paramilitary units dressed not as police officers but as soldiers. These raids bring unnecessary violence and provocation to nonviolent drug offenders, many of whom were guilty of only misdemeanors. The raids terrorize innocents when police mistakenly target the wrong residence. And they have resulted in dozens of needless deaths and injuries, not only of drug offenders, but also of police officers, children, bystanders, and innocent suspects.  

One of the key recommendations in that CATO white paper was to "Return SWAT Policing to Its Original Function—defusing those rare, emergency situations in which a suspect presents an immediate threat to someone’s life or safety. SWAT teams should not be executing search or arrest warrants, conducting routine police patrols, or engaging in similarly proactive police work. SWAT teams should never be used to serve search warrants on drug offenders with no history of violence." I couldn't agree more.

SWAT teams were originally inspired after the Charles Whitman UT-Tower shootings here in Austin, but increasingly they're used for execution of routine arrest warrants instead of intervening in already violent situations, initiating violence instead of quelling it. Here's an interview with Mr. Balko from earlier this year lamenting the unnecessary trend toward SWAT teams' overuse.