Yes, Mr. Schaefer, police violence is a problem, even in Tyler

Rep. Matt Schaefer (R-Tyler), who represents my hometown, said at the Homeland Security and Pubic Safety Committee hearing the other day that there'd been no serious police violence incidents in his district in many years. Maybe he meant police shootings or deadly force. But a couple of folks in the audience grumbled that somebody should tell that to the 15-year old kid thrown to the pavement by a Bullard police officer last fall. Here's video from the incident:

The kid was 15 and had tried to charge his phone without making a purchase, which was against store policy. Off-duty Bullard police officers told him store owners didn't want him there. He asked to speak to the manager but they refused and put him in handcuffs, took him outside, then threw him to the ground as seen above in front of cell-phone wielding witnesses. The episode sparked protests in response.

Might this incident have been prevented if HB 830 - part of the Texas George Floyd Act - barring arrests for Class C misdemeanors had already been law? Maybe not. No arrests were made because Bullard police officers had no authority to make them outside their jurisdiction, according to local news reports. (They were at a facility in Tyler, not Bullard.) So the kid was merely handcuffed and detained by police then assaulted before being let go with no charges. On the other hand, HB 833 limiting police use of force would have prohibited this entirely gratuitous force incident. And HB 832 would have created a duty for the other officers to intervene and stop it.

It's one thing to tell people in Austin there's no problem with police violence in his district. But folks back home who've seen this video on the evening news already know better. Chairwoman Senfronia Thompson has been working with all the police groups who will work with her on substitute language for these bills, and Mr. Schaefer will soon have an opportunity to do something about it.

Causes of rising Smith County jail population are knowable, but officials like the system ineffable

The Smith County Jail population is growing, reported the Tyler Morning Telegraph, and the main reason is that the county is disproportionately incarcerating pretrial in routine cases. The DA told the paper,  “Over the years we see that that number trends upward sometimes and trends downward sometimes. There’s nothing specific that’s causing it to be higher right now.”

But we do know a few things about why the jail is so full. Reported the Telegraph:

While Smith County has 0.8% of the state’s population, the county jail had 1.2% of the state’s county jail population in 2019. The trend is consistent among most types of crime. 

In July, the county had 1.8% of people accused of misdemeanors awaiting trial; 3.6% of people convicted of misdemeanors; 2% of people accused of state jail felonies awaiting trial, 3.3% of state jail felons sentenced to state jail, and 2.3% of convicted felons.

With 0.8% of the state's population and 1.8% of misdemeanants jailed pretrial, plus 2% of state jail defendants awaiting trial, Smith County is disproportionately incarcerating lower level defendants pretrial compared to other jurisdictions. That's a self-inflicted wound. A whopping 65% of inmates in the Smith County jail as of last month were incarcerated pretrial. That's the result of decisions by local elected officials in the judiciary and the DA's office, not just some random event.

Similarly, they're using county jail to incarcerate people as punishment for misdemeanors much more often than the rest of the state. Again, they have 0.8% of the state's population and 3.6% of Texas defendants jailed after misdemeanor convictions. That's 450% above the statewide rate! The number is small-ish (55), but the fact remains for multiple categories of defendants, Smith County officials are using incarceration much more frequently than the rest of Texas.

Some of the same solutions Grits recently recommended for Denton County would certainly be in order. But the problem in Smith County is worse.

Local reporters in Tyler interested in digging deeper should try to replicate Texas Appleseed's recent analysis of jail bookings to identify cohorts of prisoners who don't need to be locked up for public safety purposes. It's simply not true that the cause of rising jail populations in an era of declining crime is unknowable. It's just that they're not telling you.

Tyler mayor to run B&B for racially profiled black men, and other stories

Blogging was slow last week but that doesn't mean there weren't quite a few items in the news which merited Grits readers' attention. Here are a few of them:

Medical neglect at TDCJ espied after prisoner death

Alton Rogers died of head trauma in an Amarillo prison unit about a year ago after his cellmate slammed his head into the concrete. But autopsy results and medical records revealed he was extremely malnourished and significant medical problems had long been neglected by TDCJ which also contributed to his death. The Intercept has excellent coverage of this story. 

Tyler mayor to run B&B for racially profiled black men

Heisman trophy winning running back Ricky Williams was stopped by cops in my hometown of Tyler earlier this month and questioned in an exchange caught on police dashcam. He'd been taking a walk around his hotel, where he was staying in order to attend an awards dinner for Earl Campbell's foundation, when a homeowner called the cops to report a black man had been standing near his back fence. In Tyler, this apparently will get three cops sent to the scene ASAP. Two of the officers recognized Williams before they stopped him. But the third did not and began to aggressively question him, even lying to him to try to get him to confess to a crime. He told Williams he knew "more than you think I know," including that Williams had been in a neighbor's backyard, not just walking past it. Williams didn't bite, but he did question whether this was a racially motivated stop. This spurred the other two officers, who by this time probably knew the encounter was about to end up online, to interject that this is how they'd treat anyone in this circumstance and try to defuse the situation. Later, Tyler's mayor Martin Hines reached out to the former Miami Dolphns star, offering to let Williams stay in his personal family home the next time he's in town. (“I even invited him to stay with my family when he’s here. We have a guest room he’s welcome to.”) Grits imagines the mayor similarly extends this offer to all black men in Tyler who feel they've been racially profiled by police, don't you think? No chance Williams only got that offer from a starstruck mayor because he's a celebrity and a famous Texas football player. Nah! That can't be it.

Expunge this

For those in and around Austin, the UT law school's Expunction Project will hold a couple of intake sessions next month. Go here for more information.

Austin gets new police monitor

I don't know the new Austin Police Monitor, but the last one, Margo Frasier, was the best we ever had. She made the most of what, on paper and in practice, is a weak and ineffectual office. But it possesses a bully-pulpit function that only works if the Monitor uses it. She did. Will her successor? That's the question lingering in my mind. We'll know soon enough.

Dallas pension fight further devolves

Talks over a pension deal in Dallas have completely broken down and the city may soon pull out of the pension fund and create a new one going forward. Police unions' scorched earth tactics probably will preclude additional negotiations (anybody who questions their demand for a bailout is immediately dubbed a liar, said to have "conned" officers, accused of hating the retirees, etc.), setting the stage for years of litigation that's in the best interest neither of taxpayers nor retirees. The likelihood that police pensions drive the state's second largest city into bankruptcy increased this week.

'New breed of prosecutors'

Freshly minted DAs in Austin and Houston were among those profiled in the Marshall Project item about reformer prosecutors elected on the same day as Donald Trump. I'm kind of surprised they didn't mention Nueces County, which was truly a race decided on reform issues. In Harris, the flip was more rooted in partisan shifts that also impacted the judiciary and other countywide offices.

Death decline

This item from Houstonia magazine credits better-quality lawyering for Texas having the lowest number of executions last year in two decades. And that's certainly part of it. Unmentioned, though, was a change in the law from 2015 which required prosecutors to notify the defense when they request an execution date from a judge. This additional notice has given the defense heretofore unavailable opportunities to challenge execution dates at the time they're requested, rather than find out later only when the judge issues an order based on an ex parte request. Some of those whose dates were delayed will still eventually be executed, but the change prevents some of the last-minute wrangling and postponements that historically surround such events, While the effect likely is short-term, that new law probably explains the dip in executions in 2016 better than broader macro factors like attorney quality.

Harris DA accused of withholding snitch deal, conflicting testimony

Attorneys from Baker Botts have alleged in filings to the Texas Court of Criminal Appeals that Harris County prosecutors engaged in misconduct in a capital murder case, failing to disclose that a key witness "had provided two separate and conflicting statements to police," as well as failing to "disclose a deal not to prosecute another prosecution witness in exchange for his testimony."

Reduce drug penalties, expand treatment, opportunities for addicts

Treatment, not incarceration, is key to reducing drug-related crime, wrote the executive director of Austin Recovery in a column calling for reducing penalties for low-level drug possession from a state-jail felony to a misdemeanor. "Lowering penalties for minor possession can save Texas more than $60 million – funds that can be used to decrease the waiting list for treatment and overdose prevention. Decreased penalties also mean that people with addiction still have the opportunities to achieve their full potential," she concluded.

Cowtown cop's disciplinary file secret

See an update from AP on the episode out of Fort Worth in which an officer arrested a black mother and daughter while verbally defending the white man who had allegedly assaulted her son. The story noted that disciplinary records for past incidents involving the officer are secret unless they resulted in a firing or suspension. That's a problem not just for public accountability but also for prosecutors. In cities which have adopted the state police and fire civil service code, prosecutors similarly lack access to "impeachment" information in disciplinary files of officers they put on the stand as witnesses, although they have a duty under the Michael Morton Act to disclose such information. The Legislature needs to plug this gap in the MMA, which puts prosecutors in a particularly rough spot.

Crime by the numbers

Vox took a deep dive into the new FBI crime statistics providing important context to the "American carnage" demagoguery emerging from the White House these days.

Inmate atttempts suicide same day as TCJS prevention training

The renewed focus on suicide prevention by the Texas Commission on Jail Standards paid off recently in my hometown, reported the Tyler Morning Telegraph ("March 17"):

Staff at Smith County Jail and others across East Texas saw their training put to the test when an inmate at the jail attempted to hang himself on the same day representatives from the Texas Commission on Jail Standards were in town teaching staff about suicide prevention.

The 34-year-old male inmate from Lindale was rushed to the hospital about 7 p.m. Tuesday night and remained in a Tyler hospital Wednesday, where he was upgraded to stable condition, while jail staff continued their two-day training at the jail. 

Smith said an investigation into the incident so far has revealed the man hanged himself using a T-shirt, not with a towel as staff first believed. The man was found by jailers about 7 p.m. Tuesday during a routine check, which are required by the the Texas Commission on Jail Standards to be conducted every 30 minutes, regardless of the inmate's mental state. 

The jail was cited for failing to make a cell check on time for a 24-year-old man who was found hanging in his cell May 16, 2015.

Here's a bit more detail regarding circumstances surrounding the latest incident:

[Sheriff Larry] Smith said the inmate was being held in a separation cell located in the original portion of the jail, because jailers felt he could be a danger to others, Smith said. Medical personnel had seen the inmate at 3 p.m. Tuesday and did not believe him to be suicidal. The inmate had been in the separation cell for about two days. 

Currently, jailers check inmates who are on suicidal watch every 10 minutes, unless they are deemed at immediate risk. Inmates who are actively attempting to harm themselves are placed on constant watch, with a jailer monitoring them at all times. 

“If an inmate claims to be suicidal, they have to do specific things, such as notify the magistrate, their supervisor and medical staff,” TCJS Executive Director Brandon Wood said. “We encourage them to be as proactive as possible.”

Inmates not on suicide watch are allowed to have personal items in cells, such as clothing and hygiene items. 

That last line makes me wonder if inmates deemed suicidal are routinely stripped naked in their cells? If inmates "not on suicide watch are allowed to have personal items ... such as clothing," that implies suicidal ones don't get clothes. I understand wanting to limit their means of harming themselves, but that's also a pretty big incentive to lie about one's mental health condition if admitting it will get you stripped naked and stuck in an isolation cell.

To his credit, this episode and the one last year that got them cited by TCJS have Sheriff Smith thinking about the issue in a more proactive fashion:

Smith said he wants to go beyond jail standards and put more safeguards in place.

During the jail’s January inspection, the sheriff’s office asked TCJS to return to host this week's training classes on suicide prevention. The instructor taught the class for four groups of law enforcement personnel from around East Texas on Tuesday and Wednesday. 

"That’s part of addressing the issue. … We’re doing everything we can do," Smith said of the training. "I’ve already given (staff) ... an assignment to think outside the box. What can we do that’s not being done anywhere else to get out in front of all possibilities and to limit suicide as much as we can?," Smith said. "Forget about what the jail commission requires us to do with minimum standards, what else can we do to do that?”

Grits tends to credit the Sandra Bland tragedy last year with a heightened focus on suicide prevention in Texas jails. Jailers are more likely now to be held accountable when something goes wrong, especially when they cover it up. And that in turn pressures administrators like Smith to take prevention much more seriously.

Smith County Judge was sexting during State Commission on Judicial Conduct meeting

Smith County Judge Joel Baker recently resigned from the State Commission on Judicial Conduct after it was revealed he'd been sexting with a woman not his wife including, allegedly, during commission meetings in which they were evaluating alleged judicial misconduct by others.

Baker is County Judge - which is essentially a mayor-like position on the county commissioners court, not a judge presiding over cases - but for reasons of historical anachronism, there is a county judge's position on the SCJC and he's that representative. A lot of the press coverage so far seems to have been written by reporters who don't understand what the County Judge or Commissioners Court does - Baker is not presiding over cases. (CORRECTION: A commenter informs me Baker, who is an attorney, does preside over some probate cases.)

Reported a local station, KLTV:

The woman said Baker sent her a friend request on Facebook last year. She said she's never met the judge and didn't know him personally.

"[Baker] has always been sexual with me, and he’s made comments and [at first] I never reacted to them," the woman said. "Then in October when me and my boyfriend broke up is when it got really explicit."

After posting about the breakup on her page, she said she got a private message from Baker. 

"He messaged me and said something along the lines like, 'hey how are you. I would love to come drink a glass of wine with you,' is how it started. That’s how our initial contact was."

A friend recommended she contact McLemee to verify whether the messages originated from Baker or an imposter. Together, McLemee and the woman put together an aggressive plan to keep accelerating the online relationship.

The time stamps on the Facebook messages coincide with county business hours, taxpayer funded out-of-town conferences and judicial conduct hearings in Austin.

In one message sent on February 10 at 2:37 p.m., Baker explains that he’s at a state committee meeting in Austin, looking “at complaints about judges.” Dozens of sexually-charged messages follow.

"Had Joel Baker simply said 'I am in a very important court hearing. I cannot talk right now. I will contact you after I get off work today,'" McLemee said. "I would have had the utmost respect for that response."

In addition to the messages, the woman says she received nude photos of Baker exposing his genitals. The woman admits she consented to the sexual conversations and requested the photos, even sending some explicit photos of her own.

Calls are already coming for Baker to step down from his county judge post, as well, and it's a near certainty these allegations would sink any future reelection campaign in Smith County.

One also can't help thinking that this news casts a different light on older allegations that Baker had been videotaping a neighbor-girl inappropriately through her bedroom window.

Baker's one of those politicians who touts his Christianity as though God Himself had endorsed him, so these allegations, if true, raise particularly delicious ironies.

One also wonders, though, if they raise issues about the effectiveness of the State Commission on Judicial Conduct, whose members apparently didn't notice that a colleague was more focused on inappropriate texting than their work, or if they noticed, didn't say anything.

Grits considers the SCJC essentially toothless, and hasn't really looked to the agency for redress vs. bad judges since they declined to publicly go after Verla Sue Holland, the former Court of Criminal Appeals judge who slept with a prosecutor as a trial judge while presiding over a capital case in which he was first chair. If that judicial conduct doesn't merit public sanction, what does?

According to SCJC annual reports, out of more than 4,400 complaints against judges over the last four years, the commission only disciplined judges 249 times, and in 79 percent of those cases (196), the results were never made public. When a Texas judge engages in misconduct, the chances are vanishingly scarce that the public will ever learn of it from the SCJC, even when the agency finds the complaint had merit.

In that light, perhaps the ennui associated with a do-nothing job contributed to Judge Baker's inability to control his sexting during SCJC meetings. When most of the work you do is fruitless and irrelevant, it's hard to keep paying attention, although there are plenty of time killing phone games this writer would recommend over sexting.

None of this is to diminish the efforts of SCJC staff, who in my observation are acting in good faith and trying to do a good job. But judging by outcomes, the political appointees on the commission do not seem particularly interested in holding Texas judges accountable in any meaningful way. And now we learn that, at least in the case of this one commissioner, that could be because his attention was focused on his own alleged misconduct, which he surely, and understandably, believed would never be brought to light.

Smith County prosecutors smeared Kerry Cook, destroyed, withheld evidence

At the Texas Tribune, Brandi Grissom has the latest on Kerry Max Cook's pursuit of exoneration and the continuing misrepresentations by the Smith County DA about the case. “'They’re not just opposing Kerry’s bid to exonerate himself, but they’re saying all kinds of things about evidence at the trials that just isn’t true,' said Nina Morrison, staff attorney at the New York-based Innocence Project.”

Even more disturbing, reported Grissom, "After Cook's lawyers requested additional DNA testing on evidence in the case, they discovered some evidence had been destroyed and the storage of other evidence had presented questions regarding its chain of custody." In an apparent act of gamesmanship:

in December 2001, Smith County prosecutors destroyed much of the key physical evidence in the murder case without notifying Cook’s lawyers. Among the items destroyed were Edwards’ bra, panties and jeans, a hair found on her buttocks and all the latent fingerprints found at the scene. The destruction came just months after lawmakers passed the 2001 law that allowed for post-conviction DNA testing and required prosecutors to notify defendants before destroying evidence that might contain biological material.

These sorts of hide-the-ball tactics have characterized this case from the beginning, to the point that the Court of Criminal Appeals once opined that "Prosecutorial and police misconduct has tainted this entire matter from the outset," as Texas Monthly's Michael Hall reported last year. Read Brandi's full story for more examples of shameful misrepresentations by Smith County prosecutors, none of whom, it should be mentioned, have ever been held accountable for their actions by the state bar.

See prior, related Grits posts:

• 'Two Decades on Death Row, 15 Years in Limbo: Kerry Max Cook's Struggle for Justice'

• 'Released but not exonerated'

• Kerry Max Cook: 'Rogue' DAs don't deserve 'Prosecutor of the Year' honors

• Piling on the Tyler Morning Telegraph over cretinous murder-case coverage

• Kerry Max Cook seeks DNA testing, formal exoneration

• Thousands petition Perry for Kerry Max Cook pardon

• Letter from an innocent man

'Two Decades on Death Row, 15 Years in Limbo: Kerry Max Cook's Struggle for Justice'

Kerry Cook with Robin Williams, via Forbes.

Forbes has a story with the same headline in this post detailing the saga of Kerry Max Cook's three and a half decade struggle to clear his name from a completely false capital murder conviction which DNA evidence has since debunked. Read it.

Cook recently lost an effort to get the venue for his habeas writ changed out of Smith County, where a Tyler police sergeant had actually carried off some of the evidence from his case as a souvenir. He was devastated, understandably believing it's essentially impossible for him to get justice in my hometown as long as the current crop of judges and prosecutors rules the political roost there and the local media is in the can for them (and they are). I understand Cook's pessimism - after the roller coaster ride he's been on (three capital murders trials for a crime he didn't commit!), it would be nearly impossible not to become pessimistic, and it's a testament to my fellow Tylerite's gumption that he's still fighting 35 years after his life was stolen from him. But Grits is slightly more sanguine about his chances because, as America's second President John Adams put it, "facts are stubborn things," and this time around it's the DA confronted with, in the lawyer's lingo, extraordinarily "bad facts." DNA evidence - not tested until after Cook's plea deal to escape death row - demolished the prosecution's theory of his guilt. If the additional DNA testing he's seeking confirms that finding, as expected, I'd like to believe we've reached the point where Cook can be exonerated, even in Smith County. We'll see, won't we?

Relatedly, I recently ran across this commentary from Kerry last year on the passing of Randall Dale Adams, arguably the first among modern exonerees, whose story was exposed by the documentary, The Thin Blue Line. A couple of notable quotes from that missive: "Death row was a lot of things, but most of all, it was a wild and crazy place, a hate factory and an austere human repository warehousing every conceivable mental and emotional disorder known to the Diagnostic and Statistical Manual of Mental Disorders (DSM)." And another: "Randall's ordeal with Texas officials and the fight to clear his name and be recognized was so grueling and intense; he left public life and moved back to his hometown of Columbus, Ohio where he died" in 2010.

Having now been privileged to meet so many Texas exonerees - including several, like Kerry (not yet formally an exoneree, but closer than ever) who spent years on death row - one element folks probably can't appreciate from afar is the personal toll the ordeal takes on these individuals, who are then expected to take on roles as spokesmen, public figures with no training or background to prepare them for a media environment that even professionals find dizzying and baffling. And for those who haven't received compensation, like Kerry, they must simultaneously struggle to make ends meet in a world where many still consider them murderers, rapists, etc.. Kerry Max Cook has handled that grueling process better than most, many times essentially on his own. But the DNA evidence, not to mention recent court rulings, arguably make his position much more favorable now than in it was in the 1990s when he pled to capital murder for time served to avoid a fourth trial - at least unless Smith-County good-ol-boyism somehow gets in the way.

If his writ were being heard in Dallas or Houston, I'd say it would be a slam dunk. But Tyler ain't Dallas or Houston. Good luck, Kerry.

'Let Yankees adopt such low callings ...'

Thanks to readers who had kind things to say, in the comments and via email, about my father's recent award. My brother has written about the ceremony, and I put up an item on my personal blog, Huevos Rancheros, ruminating on some of the family history discussed at the event. See "Let Yankees adopt such low callings: Reflections on the making of a southern lawyer."

Kerry Max Cook: 'Rogue' DAs don't deserve 'Prosecutor of the Year' honors

Kerry Max Cook, who is seeking post-conviction DNA testing to formally, finally exonerate him of a 1978 murder for which he was sent to death row three separate times, asked Grits to post this brief essay:

“ …It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.  They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (Texas Code of Criminal Procedure, Article 2.01)

There is definitely something broken - - and broken badly - - when the Texas County and District Attorney Association section of the State Bar of Texas awards and sanctions rogue prosecutors by unabashedly nominating them "Prosecutors of the Year."

My name is Kerry Max Cook. I am the author of a memoir called CHASING JUSTICE:  My story of freeing myself after two decades on death row for a crime I didn’t commit. [Ed note: See a review.]

What do Williamson County’s Ken Anderson and Smith County’s Jack Skeen share in common? Both were awarded "Prosecutor of the Year" by the County and District Attorneys section of the Texas State Bar.  And both were later appointed to District Judgeships by Gov. Rick Perry.

When a Tyler Judge in Smith County moved my case to Williamson County in 1992 for the first of what would become a series of retrials in the ‘90’s, then-District Attorney Jack Skeen sent me back to death row a second time. In fact, of all the things you can say Jack Skeen and Ken Anderson have in common, the one thing they don't is that Jack Skeen is not facing a Court of Inquiry and Ken Anderson is.

If anyone really sat down and took the time to wade through all the documented Jack Skeen and David Dobbs misconduct in my case, I think you would be shocked at how bad it really was. It would make the machinations of John Bradley look like Cinderella.  But that won't happen. You see, in Texas we have what I like to call Sak's Fifth Avenue justice for the Ken Andersons and Jack Skeens, and Wal-Mart justice for the Michael Mortons and Kerry Cooks.

Take my case for example. Here you have one of our largest newspapers in Texas, the Dallas Morning News, from 1980 until 1992 writing an award-winning series of investigative stories on my persecution that began with "Inmate was Railroaded, Testimony in Cook case called mostly false," "Convicted Man Called Innocent," "Key Evidence in Cook Case Suppressed," "Wrong Man on Death row," "Psychologist Views on Inmate Disputed," "Conclusions Wrong, Experts Say," "Police Didn't Pursue Leads in '77 Killing: Tyler Inquiry called Sloppy," and many more. These headlines were published across the state of Texas.

The man responsible  who caused those torrid headlines to be written was 1977-78 Smith County district attorney A.D. Clark, III.

Fourteen years later, Jack Skeen (A.D. Clark, III’s first-cousin) used the exact same "fraudulent” case A.D. Clark, III first built to convict me and then pushed it until he got a second conviction and death sentence at a third trial in 1994 with a Williamson County jury.

These Dallas Morning News investigative headlines had already splashed across Texas long before Jack Skeen received his “Prosecutor of the Year” award in 1997. In addition, by this time, Jack Skeen had already sent me back to death row once more and was on his way to do it again in a fourth trial after the conviction he obtained in my third trial with the use of the very same "fraudulent evidence” (See Tex. Ct. Crim. Apps. Nov. 6^th. 1996 Opinion). The County and District Attorney's Association knew all of this when they nominated Jack Skeen “Prosecutor of the Year” in 1997.

Maybe  one day the spirit of the words found in Article 2.01 of the Texas Code of Criminal Procedure can have meaning in Texas. Today, they don't. After what I have gone through in Smith County, I'm not sure they ever did.

RELATED: See Cook's motion to recuse and disqualify (pdf) Judge Jack Skeen in future proceedings in his case. Here's a good summary from Texas Monthly's Michael Hall on Cook's efforts to seek exoneration, and recent commentary from former Dallas News reporter David Hanners, mentioned above, who believes Cook is actually innocent.. Finally, here's an oldie but a goodie, this Houston Chronicle story from 2000 alleging prosecutorial misconduct in Smith County, using Cook's case as a prime example. (Then Smith County DA Jack Skeen sued the paper for libel over the story and lost.) Also, in addition to Judges Anderson and Skeen, it's worth mentioning that Williamson County DA John Bradley is also a past "Prosecutor of the Year" recipient.

Piling on the Tyler Morning Telegraph over cretinous murder-case coverage

Having mentioned the other day that Kerry Max Cook is seeking post-conviction DNA testing he hopes will formally exonerate him, and that local prosecutors were blasting him for it in the press, Grits wanted to point out some keen commentary by former Dallas Morning News reporter David Hanners, the journalist who first uncovered problems with Cook's conviction. Texas Monthly's Michael Hall wrote a notable blog post titled "What the 'Tyler Morning Telegraph' failed to tell you about Kerry Max Cook," and Hanners replied with this remarkable comment (edited only to break it into more readable paragraphs).

As the reporter for The Dallas Morning News whose stories initially raised doubts about Mr. Cook’s guilt, I believe I have a few observations I can offer to the discussion. The first would be that when it comes to Mr. Cook’s saga — and there’s no other word for it — the Tyler Morning Telegraph has never acquitted itself well. I’m usually hesitant to disparage another journalist or publication, but the Tyler paper’s history of coverage in this case has been a sad entry in the annals of objective and fair journalism. The paper has, time after time, taken the word of local police and prosecutors as gospel in Mr. Cook’s case and has done little, if any, real journalism. And, as the record reflects time after time, the word of police and prosecutors in this case has not been worth much.

I am probably one of the few people who has taken an objective look at Mr. Cook’s case. I wasn’t out to convict him and I wasn’t out to set him free. When I began looking into his case, it was to try and get an answer to a very simple question: Why did it take the Texas Court of Criminal Appeals nearly eight years to rule in his case? (As I would later find out, it was because the court basically lost the file.) Whether he was guilty or innocent really wasn’t an issue to me. But as I sat in the basement of the Supreme Court Building reading his trial transcript and looking through the exhibits, it became increasingly evident to me that, at the very least, Mr. Cook had not received a fair trial and, at may well have been innocent. The record (and the Texas Court of Criminal Appeals, eventually) has proven the former, and I am firmly convinced of the latter. I just don’t believe he killed Linda Jo Edwards.

In discussing this case with others, I have often described it as Murphy’s Law personified. Everything that could go wrong, did. The initial police investigation was hopelessly incompetent and relied on pseudo-science that was bad even for 1976. The police just didn’t do what a basic police investigation would have or could have done. (To underscore that fact — and this is directed at “Kelly”[another TM commenter] — Ms. Edwards had indeed been married and divorced. I have the records and I’ve spoken to her ex-husband. At the time of the murder, he was in the military out on the east coast, and detectives made the trip out to interview him. In a bit of irony, the detectives couldn’t be bothered to head out to the university to interview Mr. Mayfield or Ms. Edwards’ co-workers. When those co-workers complained to the police about not being talked to, the detectives went out to the school and basically waited for people to come to them — in full view of Mr. Mayfield.)

As another example of the utter ineptitude of the police investigation, consider the “missing” sock. As those conversant with the case know, police said they found only one sock at the scene, and so the prosecution turned that “theft” into one of the elements making it a capital murder case and the description they offered at Mr. Cook’s trial was quite graphic: After killing Ms. Edwards, the killer allegedly cut out body parts and stuffed them in the sock and took them as “trophies” of his kill. Imagine if you’re a member of the jury and you hear that and it is never refuted by the defense. Well, no body parts were ever taken, and when the jurors in the first re-trial had the evidence back in the jury room, they opened the evidence bag containing Ms. Edwards’ jeans, pulled out out the pants and held them up. Out dropped the “missing” sock. The cops were too incompetent to even find a sock in a pant leg. That type of conduct permeates the police investigation, so it is legitimate to question how anyone can have any faith in it. Still, the “he-took-body-parts-in-a-sock” bit remains part of the accepted mythology surrounding this case.

I’ve covered many murder cases over the years and realize that often they come down to circumstantial evidence. But even the circumstantial evidence in this case had to be stretched and in some cases fabricated to win a conviction. And Mr. Cook’s initial defense team did little to nothing in the way of investigation, or at least the type of investigation you’d like to see in a capital murder case.

Over the years, I have developed my own theory and belief into who killed Ms. Edwards, and it is a theory that fits the available evidence (direct and circumstantial) and is not inconsistent with those factors. I’ll not share that theory here, but suffice to say that it doesn’t involve Mr. Cook. Not to put too fine a point on it — and this is something I’ve spoken to him about, so he knows what I’m about to say — but Mr. Cook was not a good enough criminal or a lucky enough criminal to have committed a crime of this fury and magnitude and NOT leave a ton of evidence. He was young, immature and just didn’t think that far ahead. As “iffy” as fingerprints can be, he could not have committed this crime and not left bloody fingerprints everywhere in that apartment.

I also wish to speak to the DNA evidence and the way the prosecution has handled it. I clearly remember Mr. Dobbs telling me, prior to the testing, that they were excited about the prospects of a test because the semen sample “could only have been left by the killer.” Those were his exact words to me and I remember him saying it as if it were yesterday. So then the sample is tested and, lo and behold, it belongs to someone other than Mr. Cook. Suddenly, the prosecution’s story changes. So now the prosecution says, “Well, of course it was somebody else. But Mr. Cook is still the killer.” That last point is emblematic of how the police and prosecution have behaved over the lifetime of this case. They have wanted to have it both ways. When they claimed the evidence said one thing, they claimed it pointed to Mr. Cook’s guilt, but when it was demonstrated or proven that the evidence said the exact opposite of what they claimed, they said it still proved Mr. Cook’s guilt.

Absent confessions from the guilty parties, I doubt we’ll ever know for sure what happened to Ms. Edwards. The investigation was so screwed up that it can’t be trusted and there’s no way to go back in time and fix that. You don’t get a do-over when it comes to collecting evidence from the scene of a 1976 crime. Mr. Cook deserves more than what the system has given him. For that matter, Ms. Edwards deserves more than what the system has given her. She, like Mr. Cook and justice itself, deserves the truth, and we do them all a disservice by perpetuating the lies that led to this abhorrent conviction.

Well-said; you can see how Mr. Hanners had the writing chops to win a Pulitzer. He and Michael Hall couldn't be more right about the Tyler Morning Telegraph, and this case isn't the only time the paper has demonstrated such shortcomings.

BTW, among attorneys doing innocence work, there's a phrase for the situation where prosecutors insist only the rapist and/or killer could have left the DNA, then change their theory of the case after exculpatory results come back vindicating the person they've accused, as happened in Mr. Cook's case: They're basically alleging there was an "unindicted co-ejaculator." Usually once you reach that point, the defense has already won the substantive debate and the prosecution just hasn't realized it yet, or won't admit it. But you'd expect the local newspaper to be able to figure it out.

Kerry Max Cook seeks DNA testing, formal exoneration

Though I was 12 years old when Kerry Max Cook was convicted of capital murder for the first time in my home town of Tyler, I have no recollection of the original events or trial. As an adult working in the innocence movement these last few years, however, I know his case as almost iconic, tainted by flawed forensics, tunnel vision and extreme prosecutorial misconduct. After his third trial and death penalty sentence, the Court of Criminal Appeals overturned his conviction declaring that, "“Prosecutorial and police misconduct has tainted this entire matter from the outset.”

Now, more than a decade after his release from Texas death row, Cook has filed a Chapter 64 postconviction DNA testing motion "to start the ball rolling to get Cook eventually declared actually innocent," reports Michael Hall of Texas Monthly who provides an excellent, extended analysis of the case in a TM blog post.

Bizarrely, prosecutors from my home town say they're puzzled why Cook would seek formal exoneration so many years after he was sprung from death row. Just for starters, I'd say it's because Jack Skeen and David Dobbs smeared him six ways from Sunday over the course of two decades while ignoring the man who DNA evidence and an investigation by the indefatigable Centurion Ministries say is likely the real killer. More immediately, Texas recently increased compensation for men exactly in Cook's position who were victimized by false convictions. And during the 2011 session, the Texas Legislature amended the post-conviction DNA testing statute to eliminate most grounds for prosecutors to object to testing. So it makes perfect sense to me why this is happening now. Indeed, if the Tyler Telegraph or Smith County prosecutors wonder why Cook is seeking exoneration, they could have just asked him. Hall did, and his post concludes with Cook's reasoning:

Cook’s case is a deeply tragic one. He was one of the first of the modern wave of men to be freed after years of wrongful imprisonment. And yet Cook never experienced a profound public vindication. He never got to raise his arms high as he was cheered leaving the courthouse—like Morton recently did. He doesn’t get millions of dollars in compensation from the state for those wasted years—like the others do. He doesn’t have a brotherhood of fellow exonerees—like the men in Dallas have. He isn’t even, technically, an exoneree.

“Every day I fight against the darkest depression imaginable,” he says, “because of what Smith County did to me and continued to do to me for 35 years. First there was the horror of my prison experience as an innocent man, then my fate when I was freed, which in some ways was almost as bad. I developed severe PTSD. I was forced to move five times by people who found out about my past. Kids won’t play with my son because they find out he’s the son of a man who was on death row. My wife and I–we have no insurance. I can’t get an apartment, I can’t get a real job. It’s been unbelievable. Nobody knows what it’s like. It’s like I’m behind another set of bars. I’m not free.

“I want the official exoneration. I want what Ernest Willis and Tim Cole and Michael Morton got. I deserve it. It’s my turn.”

This case represents one of the darkest moments in the history of my hometown's criminal justice system, though the saddest part is that, as bad as Cook's case was, there's still substantial competition for that "darkest" label. I know Cook sometimes visits this blog, so let me be the first here to say "good luck"; if anybody deserves ultimate vindication after traumas worthy of Job, it's Kerry Max Cook.

MORE: From Michael Hall at TM Daily Post, see "What the Tyler Morning Telegraph failed to tell you about Kerry Max Cook." Though lets face it, it would be more than a full-time job trying to plug in all the gaps that the Telegraph "failed to tell" its readers, though I understand wanting to make an exception in this instance.

Bills encourage testing, proper retention of rape kits and other biological evidence

I noticed a couple of recent stories about SB 1636 by Sen.Wendy Davis requiring data collection and reporting on untested rape kits and testing as many as possible, resources permitting. (See here and here.) Another bill, SB 1616 by Sen. Royce West, would create new standards for preservation of biological evidence via DPS rules. Both passed during the regular legislative session and have been sent to the Governor. Between the two bills and ongoing federally funded research on rape kit backlogs in Houston, perhaps over time fewer rape kits and other biological evidence will be lost or go untested. Readers will recall that the main reason so many DNA exonerations have come out of Dallas is that they were one of the few jurisdictions to actually keep old DNA evidence.

Speaking of which, I also noticed this recent video from the Tyler Telegraph of the Smith County Sheriff's Office evidence room, where toward the end we see stacks of unrefrigerated rape kits and DNA samples kept in a shabby looking storage room. One imagines (or at least hopes) they may need to upgrade their methods of storing biological evidence once new research and rulemaking can definitively establish best practices on the subject.

See related Grits posts:

• The DNA's over there, right next to the jelly
• Bill would probe rate kit backlogs, encourage testing
• Senate bills encourage retention, testing of old rape kits, DNA evidence
• Houston gets DOJ grant to analyze why rape kits went untested
• Test possible innocence cases among Bexar DNA cache
• Reducing forensic backlogs a source of rare agreement at hearing
• Security theater vs. crime fighting reality in an era of tight budgets

'An Absolute Honest-to-God Texas Frame-up'

Michael Hall has a well-done column at Texas Monthly with the same title as this post on the dissatisfying denouement of the so-called "Mineola Swingers Club" case, which opens:

Well, it’s finally over, and if you didn’t look too closely, you’d think the good guys had won. Today at a pre-trial hearing in Smith County, six of the seven so-called Mineola Swingers Club defendants—accused of unbelievable acts of child sexual abuse—pled guilty to “injury to a child” (a felony) in exchange for their freedom. They’ve all been in jail or prison since 2007, though two had their sentences overturned. The remaining defendant—whose conviction is still intact—will remain in prison.

I’ve rarely seen the wheels of justice grind up so many innocent people—and I’m not just talking about these seven defendants. I’m also talking about the children who became witnesses against them, plus the family members of everyone involved in this sordid mess. As long-time Tyler attorney Bobby Mims, who is also a vice-president of the Texas Criminal Defense Lawyers Association, told me in my first story on the cases, “In my thirty years of practice, I’ve never seen anything like it—an absolute, honest-to-God frame-up.”

The story provides an excellent, if angering explanation of why innocent people may plead guilty in cases such as this:

Why would they do this if they aren’t guilty? Well, innocent people plead guilty all the time. They confess to crimes they didn’t commit (about a quarter of the DNA exonerations involve some form of false confession) and they plead guilty to crimes they didn’t commit. They especially do it when they are certain they will be found guilty, no matter what they do or how good their attorneys are. In these cases we’ve already seen four different juries vote guilty—in the time it takes to watch a movie. These defendants know the realities. They can go to prison for life—or they can go home. They don’t have a whole lot to lose by pleading guilty. Their lives have already been ruined—they’ll always be known for these allegations anyway.

There's little doubt more than a few innocent people enter into plea deals for exactly those reasons: The (il)logic of the plea bargain system all but demands it. Even if you're innocent, would you risk a life sentence if you could plea guilty and go home by the end of the week?

Ultimately, says Hall, "There was no crime. There was no sex kindergarten and there were no child-sex shows at a swinger’s club. Ultimately, I can’t help but believe that [Smith County DA Matt] Bingham knows this. Let’s put it this way: If he really believed these people put on live sex shows with children, would he really be setting them free now?" Exactly.

Smith County 'Tea Party' group pushes jail bonds despite higher costs for same services

In my hometown, competing "Tea Party" groups have come down on either side of a Smith County jail building proposal that would raise county property taxes. Grits had mentioned the Tea-Party folks opposing the jail in this post, and now a competing Tea-Party affiliated group, called Grassroots America - We the People, has come out backing the plan. Early voting begins Monday on the county's fifth jail proposal in as many years. All the others failed, maxxing out at around 45% of the vote.

Smith County voters have decisively rejected a new jail and local officials - particularly the police, DA and judges - have failed to implement jail diversion policies that could solve the problem without more taxes. So I'm a little surprised to see the anti-Big Government crowd, or at least some of them, caving in on this. Nothing irks small-government conservatives more than politicians whose plans are rejected over and over by voters who then keep bringing them back for yet another plebiscite until they finally get what they want. The strategy is to wear the voters down, and it frequently works. Special interests who want the jail - from construction firms to the Sheriff - perhaps rightfully think they can outlast the opposition, who are mostly volunteers opposing the jail on principle and aren't paid to keep up the fight for years on end.

Notably, even proponents figures show the new jail will cost substantially more in the near term - immediately, in fact - compared to simply leasing beds in other counties until Smith could implement diversion strategies. According to GAWTP:

At the last Smith County Commissioners' Court Meeting (April 25) Sherriff Smith reported the out-of-county jail population was 70. If you take the current contract per diem rate of $41.00 per inmate, times the 70 out-of-county prisoners, Smith County paid $2,870 for that one day. This does not include the cost of transporting those prisoners (vehicle depreciation, personnel cost, gas, and upkeep of the vehicle), and the medical care the prisoners may need or receive (an out-of-county cost over which Smith County has no control).

So if housing prisoners out of county costs $2,870 per day, how much will debt on the new jail cost? The total amount to be borrowed is $35 million, so for the sake of argument let's say the county will pay a simple interest rate of 4.5%. Plug it into the ol' interest calculator, and over the life of the loan (15 years), that comes to $58,625,000, or $10,708 per day, rounded to the nearest dollar. It's hard to see how that makes economic sense.

Of course, county officials say they may be able to recoup some of the cost by leasing out the extra beds, but lots of other counties thought the same thing and it hasn't panned out. Meanwhile, Smith County's incarceration rate remains high and the county keeps proposing more jail construction instead of focusing on diversion.

A recurring theme on this blog is that criminal justice issues don't typically break along traditional partisan or ideological lines, and the stances of these two Tea Party groups demonstrate that well.  It's a bizarre thing to see people promoting "less governrment" pushing an option that costs nearly a quarter-million dollars per month more than the status quo, but those are the strange terms of debate which have evolved over jail building in Smith County.

'Tyler Tea Party announces opposition to latest Smith County Jail Plan'

The title of this post is the headline of an extraordinary press release from the Tyler Tea Party, Inc., which further reads:

The Tyler Tea Party, Inc. has reviewed the latest jail plan released by the Smith County Commissioners Court and after reviewing the documentation the Tyler Tea Party believes that the voters should vote AGAINST in the election to be held on May 14, 2011.

The Tyler Tea Party, Inc. opposes the bond election for several reasons including a lack of transparency, timing and issues regarding the arguments used to support the plan.

On the issue of transparency, this plan fails on all fronts. This is the fifth jail proposal developed by the Smith County Commissioners Court. The court has released the least amount of supporting documentation for this plan. On the County's website, the Commissioners have released a power point presentation that is long on promise but short on details. The lack of supporting documentation, weighs against supporting the plan.

On the issue of timing, the most recent jail plan could not come at a worse time. The economy right now is terrible. The Tyler Independent School District just had a school bond election fail and talking about laying off employees. Tyler Junior College is discussing how to fund its expected short fall. Now the County is asking the voters to support a new jail even though the voters just voted against more schools. The timing of the bond election also weighs against supporting it. Additionally, in January of this year, the county was shipping only 41 defendants to other counties. This was one of the lowest numbers in years. Additionally, at this time there is a bill pending before the Texas Legislature that would allow Counties to have tent jails. These issues related to timing also weigh against supporting the plan.

Finally, the arguments being used to support the bond package are contradictory and rely heavily on assumptions that require the Commissioners Court to realize savings which they have never been able to realize in the past. The primary argument made by the Commissioners to support the bond proposal is that the County has already spent 16 million dollars in housing inmates in other counties. The Commissioners seem to be hinting that these funds could have been spent on constructing a new jail. However, this is not true. By voting no in the last 4 or 5 jail bond elections, the County has actually SAVED money by voting no. Additionally, by voting no to this bond election the County will save money. Further, the County has acknowledged spending $41.00 a day in housing inmates in other counties is less than would be spent in Smith County if a bond election passed and a new jail built. Therefore, Smith County will actually be spending more money to house inmates here than other counties and on top of that the County would have to pay for the cost of construction. This is not a conservative approach in tough economic times. Further, some of the arguments currently made do not ring true. When this plan was first announced, the Commissioners Court stated that the plan would not address all of the County's needs and some inmates might still have to be shipped. However, more recently, the County has announced that it will be able to make substantial income from renting beds to other counties. Both of these statements cannot be true. Further, the history in Smith County is that every jail built was full the day it opened. Four years ago, the County said that it had to have a minimum of 1200 new beds. Two years ago, the County said that it had to have a minimum of around 600 new beds. Now the County says it needs around 300 new beds and can make substantial money renting them out to other counties. These inconsistencies also weigh against supporting the jail plan.

After reviewing the proposal and discussing it among the members of the Tyler Tea Party, Inc. we recommend that the voters of Smith County vote AGAINST the jail bond proposal. Early voting begins May 2, 2010. The election will be held on May 14, 2011.

Their math is correct that leasing out 41 beds from a neighboring county is cheaper than building a new jail. And regular readers know that any promises of revenues from leasing beds should be disregarded as naive foolishness. Quite remarkably, my hometown voters have now rejected four proposals in three different elections since 2006 to approve new debt for jail expansion. This fifth version is radically scaled down from the others, but would still require a tax increase. In the short term, with jail populations declining and untapped alternatives for jail diversion available to local police and judges, Smith County voters are absolutely rational to reject an expensive jail expansion based purely on a cost-benefit analysis.

While I realize all the local Tea Party groups are unrelated and postions taken by one may not translate to the next, it strikes me that the Texas Tea Party movement weighing in against jail construction could be nearly as important a development as the Right on Crime movement, and perhaps a related one. Until now, I haven't heard a lot of Tea Party activists turning their "less government" mantra onto the subject of jail building, police powers, etc., but judging from the Tea Party leaders I know personally, the potential is there. Certainly that's the case as long as the conversation is focused on runaway spending. In the Tyler Morning Telegraph (which never met a jail proposal its editors didn't like), a Tea Party spokesperson declared, "'We have federal spending at unthinkable levels, the state has a $25 billion shortfall and now the county comes along saying 'we want to tax a little more,' she said. 'When does it stop?'"

When, indeed? Consider: The United States has 5% of the world population and 25% of its prisoners, with Texas vying with Louisiana for the highest incarceration rate among the 50 states, meaning Texas has more or less the highest incarceration rate on the planet. Further, Smith County has among the highest local incarceration rates of any sizable Texas county. So if the Tea Party folks in Tyler - which is virtually a global spearpoint of the mass incarceration boom - begin consistently asking "When does it stop?" when they're asked for new money for jails and police, it could be a real game changer - certainly for criminal justice politics in Texas and perhaps even nationally. For once, politicians at least in my home county, seemingly can't placate their conservative flank with yet another dose of Incarcerex:

Mentally ill Tyler teen who murdered teacher lingering in legal limbo for incompetence

The mentally ill Tyler teen who killed his teacher at John Tyler High School remains in legal limbo, the Dallas News reports, because he's too sick to be declared competent to stand trial. The story by Lee Hancock ("Teen suspect in legal limbo more than a year after teacher's slaying," Dec. 26) opens:

In 14 months awaiting trial for killing his teacher, a 17-year-old named Byron has come to fear that someone is changing his body parts. He says the voices that told him to kill are saying that violence will heal him.

After a recent evaluation, court-appointed forensic psychologist Emily Fallis concluded that the schizophrenic teenager remains delusional and dangerous. The Fort Worth behavioral expert's report to a juvenile court, obtained by The Dallas Morning News, predicted a "low probability" that Byron could maintain the minimal level of competence required for trial.

So Byron's case remains unresolved more than a year after special education teacher Todd Henry collapsed in his Tyler classroom with a butcher knife in his chest. Byron's last name is not being used because The News does not identify juvenile offenders.

Earlier this year, The News obtained 7,000 pages of Byron's records from schools, mental health clinics and hospitals, and juvenile agencies. They detailed failure after failure in communication and care as Byron's turmoil worsened.

His case illustrates the difficulty in finding treatment and incarceration for severely mentally ill juvenile offenders in Texas, say the Smith County prosecutor and defense attorney involved in the case.

This sad case reinforces why it'd be folly for the Legislature to slash funding for mental health services. As the assistant district attorney handling the case for Smith County told the News, "If there had been proper treatment for a juvenile with these kinds of diseases, if there had been a long-term placement available for a poor kid like him, Todd Henry would still be alive."

'Mineola Swingers Club': Emotion guides decisions when probative evidence excluded from jurors

At Texas Monthly, Michael Hall is continuing his excellent coverage of the so-called Mineola Swingers Club cases with a description of the most recent trial and conviction of another of the adults alleged to have sexually molested kids. The Fourteenth Court of Appeals in Houston recently threw out the two earlier convictions , reports Hall:

On June 17 the Fourteenth Court of Appeals, in Houston, overturned the convictions of Kelly and Jamie Pittman. Kelly, the judges said, deserved a new trial because he hadn’t been allowed to present a defense and because Judge Skeen had “adopted ad hoc evidentiary rules that operated to assist the state in proving its case, while impeding appellant’s ability to defend himself.” (Jamie Pittman’s conviction was overturned on different grounds; Mayo’s was upheld, likely because her appellate lawyer cited none of the evidentiary issues that Kelly’s lawyers had raised.)

The ruling was no surprise to local defense lawyers. Skeen is a legend in Smith County. He was the law-and-order DA there for 21 years, then was appointed judge in 2003; he’s been reelected twice. He also has a reputation for helping the state and hindering the defense. “He never stopped being the DA,” Kelly’s attorney, Thad Davidson, told me the day after the appellate decision was announced. “He just put on a robe.”

Hall reports that Skeen made essentially the same types of rulings in this case for which he was recently benchslapped by the appellate court, continuing to exclude obviously probative evidence:

Skeen struck another huge blow to the defense when he allowed Margie—the foster mother of three of the children, the interviewer of four of them, the person whose passion had driven the cases for more than five years—to invoke her right to refuse to testify on the grounds that she might incriminate herself, even though she had already testified in the first two trials. Cassel was able to question her but only after the jury had left the courtroom. The lawyer asked Margie more than 130 questions in thirty minutes. He asked her about the California decertification, about her habit of suggesting answers to the children, about her former career as an acting coach (“And you know how to teach [children] to remember lines?”). To each question, Margie answered, “I decline to answer based on my constitutional rights.” She slumped in her chair, staring down or into the middle distance, occasionally rolling her eyes and sighing loudly.

Skeen had forced Cassel to jettison much of the case he had planned to put before the jury. When Margie was finished, the defense rested.

That's straight-up sleazy, biased judging. The courtroom should be a place to doggedly seek the truth and Skeen's doing his best to distort and skew it from the bench.

Hall described how, even though much of the defense was excluded by the judge, major logical and factual holes were still poked in the case by the defense. His story closes:

After four decisive guilty verdicts, it’s likely that the next trial will have the same result, largely because it will be overseen by the same judge. “Due process demands that the defense gets to put on a case,” longtime Tyler defense attorney Bobby Mims told me. “Cassel was prevented by Skeen from doing that. Don’t get me wrong. Jack Skeen is a great guy. I love him. He’s one of my best friends. But he’s been a terrible judge on these cases.”

Mims went into his own soliloquy on the jury system. “Cassel proved that what these children say happened could not have happened. They were never in that swingers club. The problem is that juries don’t always make decisions based on logic. In this type of case they make them on their hearts or on fear. That’s a hazard of the jury system. Still, they should have all the evidence. If they then decide the defendant’s guilty, that’s fine.”

He paused. “But in these cases I don’t think they would have. I believe these people are innocent.”

I'd like to believe, as Mims said, that the jury would have concluded differently if the judge had allowed them to hear all the evidence, but you have to wonder. Attorney Paul Kennedy recently wrote about how "going for the gut" when addressing jurors often serves attorneys better than facts or logic. He mentions the work of "Dr. Jonathan Haidt, a psychologist at the University of Virginia, [who] proposes that what we pass off as moral judgments are really the result of "moral emotions" such as disgust, anger and compassion," which he argues stem from evolutionary reactions based on diet more than a well-thought out belief system. Kennedy considers the stunning (if somewhat humorous) implications of the hypothesis: "What if the development of that moral code had more to do with the evolution of our digestive tract?" (Mark Bennett followed up with a post fleshing out the implications of this line of thought.)

If one's "moral judgment" is really an emotionally based decision rooted in "disgust," then accusations of child molestation are situations where it's easy for prosecutors to invoke that reaction in jurors. So if it's really the case that emotion trumps facts among jurors - especially when the most probative facts are excluded, as in Judge Skeen's court - it's not surprising, if a little depressing, that emotion ruled the day.

Education vs. Prisons

A construction I've seen quite frequently recently during budget debates at all levels of government has been how to relatively prioritize jails and prisons vs. schools. KLTV out of Tyler has a story titled "New jails vs. new schools an ongoing battle" (7/22), in which members of the commissioners court declared one reason they don't want to take jail bonds to voters is the likelihood that Tyler ISD will put additional bonds on the November ballot and voters would choose schools over a jail.

The, seemingly age-old Smith County battle could wage on again come election time: new schools versus new jail.

Battle lines are already being drawn... ...and early... ...from the bench...

"If TISD puts on a bond election at the same time, then I see the jail failing," said Precinct 4 Commissioner JoAnn Hampton.

"Those cute little rosy-cheeked kids, or a bunch of people in our jail house? I know who they're going to vote for and so do you," said Precinct 2 Commissioner Bill McGinnis.

"They're going to win every time," said voter, Charles Smart. "They have so far."

Smart says if the last $60,000,000 jail plan was not up against Tyler ISD's nearly $125,000,000 plan, it may have passed.

The idea of another ballot face-off is weighing heavy.

Meanwhile, Newsweek had a recent story focused on California and other states struggling to balance prison spending and higher education ("Classrooms or prison cells," June 28). According to Newsweek the issue is being raised by (among others) a prominent transplanted Texan:

It may seem odd that state funding for college kids often competes with money for prisoners, but if you track spending in California over the past 30 years, you’ll see evidence of a long-standing tug of war between these two very different constituencies. Over much of the past decade, funding for corrections has gone steadily up, while spending on state colleges has tumbled. “The state seems to be saying we have more of a future in prisons than in universities,” University of California president Mark Yudof said in a recent speech.

Newsweek included this extraordinary graphic outlining the near-explicit tradeoff in California:

It would be quite a chore to compile the data, but given the expansion of Texas prisons in the past 30 years, plus the fact that Texas universities have become so much more tuition-reliant, I would be surprised if a comparable chart for Texas failed to display essentially similar trends.

Education, particularly higher ed, is an economic investment in human capital, while prisons remove workers and money from the economy and reduce overall consumption and production. So the question arises, when money is tight, where should the state prioritize its spending? Mass incarceration is a rich nation's game. When money is scarce and the tradeoff becomes explicit, investing in education over prisons makes a lot more sense.

Commissioners sending a message on Smith County Jail

Judging from statements in this KLTV-Tyler story, you can already count 3 of 5 votes on the Smith County Commissioners Court who are sold on bypassing voters to expand the county jail. "Commissioners say after four defeats, the jail's need for growth is so important, they are considering certificates of obligation," reported the TV station.

We already knew Smith County Judge Joel Baker is for building a jail by hook or by crook, and it was Commissioner Jeff Warr who proposed using "certificates of obligation" instead of voter approved debt. KLTV quotes a third commissioner agreeing up front that voters need only be informed, but their permission need not be requested: "'Really and truly, if it came down to issuing CO's, I would vote with Co's in a minute, but I would still make sure the public knew what was going on,' said Precinct 4 Commissioner JoAnn Hampton."

Earlier this week, Smith County released its "Comprehensive Plan to Alleviate Jail Overcrowding" (pdf) which amounts to nothing but a $33 million jail expansion. That's not a "comprehensive" plan at all: It focuses only on capacity and not reducing inmate numbers. This smaller jail expansion is surely more appropriate than the massive "Taj Majal" versions proposed in the past. But it's pointless if not coupled with measures to reduce the county's astronomical incarceration rate, which is by far the highest among Texas counties with more than 150,000 population. And it flies in the face of repeated refusals by voters to issue new debt for the jail.

I hear politicians yammering all the time that their legislation "sends a message." So what message does it send if, when voters continually deny them permission to build a jail, commissioners just quit asking and do it anyway?

Smith County Commissioners may bypass voters on new jail debt

Figuring three strikes and you're out on voter-approved jail bonds, the Smith County commissioners court is considering issuing "certificates of obligation" (non-voter approved debt) to expand the jail in my hometown, albeit a smaller expansion than previously proposed. Reports the Tyler Morning Telegraph ("New jail plan would bypass voters," July 14):

Commissioner Jeff Warr has prepared a $33 million, 385-bed jail renovation and expansion project to be unveiled at a 3 p.m. special meeting Tuesday.

For months, Warr worked to produce a plan that he believed would relieve jail overcrowding, reduce costs and safety concerns, increase efficiency and meet state requirements. The plans received the Texas Commission on Jail Standards’ approval last week, and he informed the court he would make a presentation for their consideration next week.

During that time he also has contemplated how to pay for it. He admits that he “may be run out of town on a rail” by merely mentioning taking on debt without taxpayer approval.

But, Warr said he doesn’t care and added he is willing to fall on the political sword because, as a businessman, he believes it would be the right thing to do.

“The thing is, I am going to get criticism because people think I want to build a jail. I don’t want to build a jail, but I can’t go to bed without putting every option out there to stop wasting (taxpayers’) money,” he said. “We’re wasting their money.”

The county has shipped prisoners to as many as eight surrounding counties since 2004 to stay in compliance with state jail population standards. The county has spent more than $15 million housing prisoners out-of-county since it began.

More than $2.3 million was budgeted for out-of-county, shipping, medical and housing this year.

In the last four years, voters have rejected multiple jail proposals. Warr describes the situation in simple terms — either the county can become a landlord or remain a tenant.

I'll give them this: They've scaled back the proposal considerably from the original nine-figure "Taj Majal" version Sheriff J.B. Smith and County Judge Joel Baker had wanted. In the scheme of things, though, between construction and staffing, an expanded jail will cost at least as much as housing inmates elsewhere. Staffing 385 extra beds 24-7 at the TCJS minimum standard of one guard per 48 inmates would require filling 40+ guard slots - let's say, arguendo, that costs $1.2 million. Add to that the annual costs for financing - at 3%, interest alone on $33,000,000 in debt comes to $990,000, plus whatever you're paying on principal - and the costs of jail building vs. housing inmates in surplus beds in other counties comes out a financial wash, at least for now.

Before passing judgment, I'm more interested to see the non-construction details, if there are any, of Warr's plan to "relieve jail overcrowding, reduce costs and safety concerns, increase efficiency and meet state requirements."  If he's suggesting jail building as the only solution, the strategy has already failed. Smith County judges can and will easily fill up as many bed spaces as the commissioners court provides.

The Texas Commission on Jail Standards publishes a monthly comparison of county-by-county incarceration rates, and Smith County is the largest of all counties that have incarceration rates in the local jail above 4 per 1,000 residents. The Smith County Jail incarcerates 4.26 residents per 1,000. Compare that, for example, to 3.73 in McLennan (Waco), 3.66 in Lubbock, 3.14 in Brazos (Bryan/College Station), 2.96 in Angelina (Lufkin), and 2.36 in Midland. El Paso residents are less than half as likely to be locked up in the local jail (2.09 per 1,000) than in Tyler. Smith County's jail overcrowding problem stems primarily from policy decisions by elected officials, particularly judges regarding pretrial detention, not because otherwise the city would be ravaged by crime.

Building more jail space by itself cannot resolve the problem that Smith County incarcerates way too many folks in its jail for a county of 200,000. That's going to require changing either the decisions or the occupants of the local judiciary and DA's office and leadership among law enforcement agencies. As we've discussed on this blog many times, there are plenty of options for reducing overcrowding - including some proposed by longtime District Judge Cynthia Kent - that would be a much smarter way to invest additional money if taxpayers are going to be asked to spend it.