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:

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.

Roundup: Lawsuit alleges cronyism and corruption at DPS; murder indictment of Dallas cop no aberration under outgoing DA; informant testimony makes for messy innocence claims; Pam Colloff's favorite #cjreform podcasts, and other stories

Here are a few browser-clearing odds and ends of which Grits readers should be aware:

Dallas cop indicted for Botham Jean murder
In Dallas, former DPD Officer Amber Guyger has been indicted for murder in the shooting death of her unarmed neighbor, Botham Jean. You've got to hand it to outgoing Republican DA Faith Johnson: She's been more willing to charge officers in wrongful shooting episodes than any Democratic elected prosecutor in Texas, or for that matter, as she boasted in this 13-second clip from the campaign trail, any other District Attorney in the country:


Lawsuit: DPS suffers from 'cronyism,' 'corruption'
A federal lawsuit has been filed accusing the Texas DPS under Col. Steve McCraw of "a 'good old boy' culture of cronyism and outright corruption." See initial coverage from KXAN in Austin.

Corrections Committee Interim Report out
The TX House Corrections Committee has published its Interim Report. Topics studied included responses to Hurricane Harvey, the need for specialized programming for 17-25 year olds, flaws in the state jail system, and heat litigation. More on this soon after Grits has had a chance to read it thoroughly.

Creuzot looking forward to Dallas DA stint
D Magazine published an interesting interview with Dallas DA-elect John Creuzot, for those looking for clues as to how this party hopping fixture in Dallas justice politics might operate at the helm of the DA's office. See the October Reasonably Suspicious podcast for excerpts from a debate between Creuzot and his Republican-incumbent opponent, Faith Johnson; the full 1.5 hour debate is here. Note to Judge Creuzot and other incoming elected prosecutors: Consider hiring this guy for prosecutor trainings.

Forum promotes public defender option for Travis County
A public-defender office has been proposed for Travis County. Those interested should check out this recent community forum discussing the possibility. See prior, related Grits coverage.

TDCJ troubles lead to calls for independent oversight
At the Texas Tribune, see coverage of prospects for independent oversight at the Texas Department of Criminal Justice in light of recent scandals, a rise in suicides, and gross understaffing at numerous rural units. House Corrections Chairman James White doesn't sound convinced.

Recanted witness, corrupt DEA agent won't sway Harris prosecutors on innocence claims
Especially in the context of the drug war, but also high-profile murders and violent crimes, the reliance of the justice system on self-interested testimony by confidential informants is one of the most significant causes of wrongful convictions. It's also among the hardest causes to prevent, and one for which the courts are loathe to provide redress. The Houston Chronicle's Keri Blakinger describes a case in which a DEA informant, who has since recanted his testimony, accused Lamar Burks of murdering someone at a dice game. But the Harris County Conviction Integrity Unit wouldn't budge. Now, one of the agents centrally involved with the investigation has been indicted in an unrelated case in New Orleans for perjury and falsifying evidence, evincing a similar fact pattern to what Burks' attorneys allege.

In The Dark shines light on amazing, terrible case
At Pam Colloff's recommendation, I've been listening to Season 2 of the podcast, In the Dark, focused on an apparent false conviction for a quadruple murder in Mississippi. This investigative tour de force is taking the form to new levels. Awesome work, as detailed in this Longform podcast interview about how the story was put together. When I interviewed her for the August episode of Reasonably Suspicious, Pam also recommended the second season of the Missing and Murdered podcast, and the podcast After Effect from WNYC, dissecting the aftermath of a tragic SWAT team raid. Just for fun, I excerpted her recommendations into a short, 2.5 minute clip, for anyone interested:


Sandra Bland documentary premiers on HBO Monday
Last, but definitely no least, on Monday, a documentary titled, "Say Her Name: The Life and Death of Sandra Bland," premieres on HBO. Grits simultaneously cannot wait to see it and dreads the broadcast. It's such a terrible, heart breaking story! Here's a review from the SA Express News, and the trailer:

Say Her Name: The Life and Death of Sandra Bland Promo Cutdown

Import of recanted informant testimony never evaluated in capital case

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


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

Stop the Train! An Epic Indigent Defense Fail in Travis County, execution scheduled without hearing on snitch recantation, new music from Just Liberty's decarceration campaign, and other stories

Here's the latest episode of the Reasonably Suspicious podcast for April 2018. You can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:


In this episode, we discussed:

Top Stories

• Travis County indigent defense system producing terrible outcomes. 
• Texas Supreme Court to consider whether prosecutors can be fired for refusing to break the law. 
• Listen to Just Liberty's new anti-incarceration/prison-closure jingle!  (~9:00 mark.)

Death and Texas

• Juan Castillo may be executed next month but courts haven't considered informant recantation. 

Fill in the Blank

• Litigation in Galveston County made national press after a judge refused to pay for defense-attorney investigation in misdemeanor case. 
• Two Tarrant County cases show how politicized elections-based criminal prosecutions can be. 
• Former Congressman Sylvestre Reyes authored a clueless column on Texas and the opiod crisis.

The Last Hurrah

• Houston limits zoning for offender services. 
• The Tyler Court of Appeals declared Texas' "revenge porn" statute unconstitutional. 
• The Harris County Sheriff fired the deputy who shot Danny Ray Thomas, an unarmed black killed man amidst a psychotic episode while his pants around his ankles when he was killed. 

Find a transcript of this episode below the jump.

Texas jailhouse-snitch reforms praised

The New York Times over the weekend (7/15) had a staff editorial praising the latest reforms in Texas aimed at reining in the use of jailhouse informants, part of the Lone Star State's latest round of innocence legislation passed earlier this year (HB 34). The article opened:

Prosecutors love jailhouse informants who can provide damning testimony that a cellmate privately confessed to a crime. Jailhouse informants, in turn, love the perks they get in exchange for snitching, like shortened sentences, immunity from prosecution or a wad of cash.

As you might imagine, though, in a market driven by such questionable motives, the testimony these informants provide is often unreliable. 

Even worse, it can be deadly. False testimony from jailhouse informants has been the single biggest reason for death-row exonerations in the modern death-penalty era, according to a 2005 survey by the Center on Wrongful Convictions. They accounted for 50 of the 111 exonerations to that point, and there have been 48 more exonerations since then. 

Last month, Texas, which has been a minefield of wrongful convictions — more than 300 in the last 30 years alone — passed the most comprehensive effort yet to rein in the dangers of transactional snitching.

We discussed this new law in the top story of the latest Just Liberty podcast. Here's how the Times described it:

The new law requires prosecutors to keep thorough records of all jailhouse informants they use — the nature of their testimony, the benefits they received and their criminal history. This information must be disclosed to defense lawyers, who may use it in court to challenge the informant’s reliability or honesty, particularly if the informant has testified in other cases. 

The law was recommended by a state commission established in 2015 to examine exonerations and reduce the chances of wrongful convictions. The commission also persuaded lawmakers to require procedures to reduce the number of mistaken eyewitness identifications and to require that police interrogations be recorded — smart steps toward a fairer and more accurate justice system.

This is the third piece of significant informant reform legislation passed by the Texas Lege in the 21st century. The first, a requirement for corroboration of informant testimony in undercover drug stings, passed in 2001 in the wake of an ugly batch of racist false convictions arising out of the Tulia drug stings. Gov. Rick Perry eventually pardoned 35 defendants, and the episode led to a five-year campaign which ultimately convinced the Governor to de-fund Texas' drug-task force system entirely.

Then in 2009, the first session your correspondent was Policy Director for the Innocence Project of Texas, the Lege passed a corroboration requirement for jailhouse informant testimony. (This has been particularly important in cases where flawed forensics were coupled with jailhouse snitch testimony to secure false convictions.) The following session, the Michael Morton Act strengthened disclosure requirements for prosecutors in ways that specifically implicated informant testimony. Plus, Texas has seen other informant-related legislation - e.g., allowing for pretrial reliability hearings regarding compensated informant testimony - which was filed and debated but never made it through the gauntlet.

So when the Exoneration Review Commission tapped law prof Alexandra "Sasha" Natapoff - whose work has informed Grits' advocacy on these issues for more than a decade - to advise them on needed informant reforms, that culminated many years' efforts educating legislators on problems with and failures by the informant system. It wasn't just some pop-up surprise in an otherwise dreary session.

Fixing problems with informants requires long-term work; there are few short-term reform fixes in a criminal-justice system this vast and unwieldy. Indeed, in the long run, the cultural shift advocated in the close of the Times editorial is without question the most important reform possible, if also the most difficult to achieve:

[M]aking evidence admissible at trial only goes so far. The vast majority of convictions are the result of guilty pleas, which means a defendant may not even find out that an informant was paid to incriminate him before having to decide whether to accept a plea offer. 

Some states have begun to require that judges hold hearings to test an informant’s reliability, much as they would test an expert witness’s knowledge — before the jury can hear from him. 

But the deeper fix that’s needed is a cultural one. Many prosecutors are far too willing to present testimony from people they would never trustunder ordinary circumstances. Until prosecutors are more concerned with doing justice than with winning convictions, even the most well-intentioned laws will fall short.

MORE: From the Dallas Morning News.

Governor signs omnibus innocence bill to track informants, record interrogations

Governor Greg Abbott today signed HB 34, Texas' latest omnibus innocence legislation. Grits explained in this post why the eyewitness ID reforms are minimalist, at best, and avoid confronting the reasons flawed identifications still make it into court. In the latest Just Liberty podcast, Mandy Marzullo had this to say about the other key provisions from the bill:

[The] two big provisions that you want to pay attention to are the provisions that deal with recorded interrogations.  Going forward right now, law enforcement will have to record all of their custodial interrogations that deal with major felony offenses which is a huge coup.  Although a lot of law enforcement agencies say that they record their interrogations as a matter of best practice, what this means is that they have to do it.  And, they have to do it every time.  So, it’s a big deal for Texas.

The other issue is informant reform, another big piece of this legislation that requires district attorney’s offices track their use of informants. ... Informants are typically people who are in the jailhouse who report to law enforcement that a defendant confessed to a crime.  And, they testify to this confession.  So, as you can tell, just from the outset, you’re dealing with someone who does not have firsthand knowledge of an offense.  So, it is highly unreliable information to begin with.  And then, it’s incentivized testimony that usually they’re giving their testimony in exchange for some benefit.  And what the tracking does is it allows us to know how often the same person is getting favorable treatment from the prosecution.

Just Liberty post-session roundup podcast

Here's the latest Just Liberty podcast - this time reviewing criminal-justice reform legislation from the 85th Texas Legislature - featuring your correspondent and Texas Defender Service Executive Director Amanda Marzullo. Find a transcript of our conversation below the jump.

Three good bills in CrimJur committee Monday

Looking at the agenda for Monday's Texas House Criminal Jurisprudence Committee, here are three items which merit Grits readers attention. (Not that there aren't other important bills up that day, these just jumped out at me as particularly noteworthy.)

First, the big innocence-related bill of the year:

HB 34 (Smithee) Relating to measures to prevent wrongful convictions. This bill came out of the Timothy Cole Exoneration Review Commission recommendations and is being carried by that group's chair. It requires tracking and disclosure of confidential informant arrangements, recording of custodial interrogations, and requires law enforcement agencies to adopt the model eyewitness ID policy created by Sam Houston State's Law Enforcement Management Institute of Texas (LEMIT) instead of each coming up with their own. These are modest but important reforms, the most obvious next steps in the Legislature's decade-long, bipartisan effort to prevent false convictions.

Grits is also a big fan of another bill on the agenda Monday, HB 1465 (Moody) which tells judges to waive court costs if they determine a defendant is indigent. This makes loads of sense. If they're indigent, after all, they cannot pay.

One passing thought, though: On the House floor, Rep. Andrew Murr included an amendment to HB 351 (Canales), which earlier passed out of the same committee, to say courts could charge a "reasonable" fee if they assign an indigent person community service. Language in those two bills may need to be reconciled if both make it all the way through the process.

Finally, this blog doesn't generally follow capital issues, but I'm interested in HB 3054 by Herrero/Smithee requiring unanimity changing faulty jury instructions for imposing the death penalty in capital cases and allowing lawyers to inform the jury of the implications if they can't agree. (Presently, that's not allowed.) As it happens, yesterday Grits met a gentleman who announced he's from the "Fully Informed Jury Association." He was a conservative at the capitol for the asset-forfeiture subcommittee hearing. I know next to nothing about his group, much less if they're even aware of HB 3054, but it's almost like informing jurors about the power they wield is a theme in the air this week. I'm looking forward to hearing debate on this bill Monday.

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.

A first look at Exoneration Review Commission recommendations

See the new report from Texas' Timothy Cole Exoneration Review Commission, released this week. Let's review their main proposals:

ELECTRONIC RECORDING OF INTERROGATIONS 

I. Require either audio or audiovisual electronic recording of interrogations by law enforcement agencies when investigating all felony cases. 

II. Require recording to begin when the suspect enters the interrogation room. 

III. Enforce compliance with new recording requirements by permitting the admission of an unrecorded statement only if the judge finds good cause for the failure to electronically record the statement, and establishing a presumption that an unrecorded statement is inadmissible as evidence if the judge finds that no good cause exception applies. 

This is a much needed reform. According to the report, 68 percent of Texas law enforcement already have capacity to record some interrogations. So this recommendation would pick up those other stragglers and make the policy's application uniform across the state.

The commission recommended recording interrogations for all felonies instead of only serious violent felonies, as suggested in compromise legislation that failed in the past. But, as a dissenter pointed out, given how cheap and ubiquitous recording equipment is in the 21st century, there's really no good reason not to do it for misdemeanors, too. This is as much a best-practice as a reform, since recorded statements from a witness are superior evidence to written confessions. A stakeholder survey whose results were published in the report found that 88 percent of judges and 85 percent of police at NON-recording agencies thought recorded interrogations were beneficial; 72 percent of prosecutors and 70 percent of defense attorneys agreed.

FALSE ACCUSATION/INFORMANT REGULATION  

I. Require prosecutor offices to have written policies on tracking and disclosure of impeaching information on jailhouse informants.  

II. Permit the admissibility of jailhouse informants’ complete criminal history, including criminal charges that were dismissed or reduced as part of a plea bargain. 

III. Require prosecutor offices to establish an internal system to track the use of jailhouse informants including, but not limited to, cases in which the jailhouse informant offered testimony and the benefits provided in those cases. 

These important suggestions represent the minimum necessary just to evaluate the problem. Transparency is a first step toward reform, not an end game. But these would be a good start. The Tarrant County District Attorney, the report noted, implemented precisely this sort of tracking system in June 2016.  In Grits' view, there's no reason to limit such a tracking system to "jailhouse informants," but instead anyone who trades testimony for leniency should be included in the system.

OTOH, they famously had such an informant tracking system in Orange County, CA, too, they just used it to aide in perpetrating abuses instead of documenting and rectifying them. So, while tracking informant use is a fine suggestion - and I believe the information generated could better inform a future round of more substantive reforms - these recommendations won't prevent some of the worst abuses which arise from prosecutors trading dismissals or sentence reductions for testimony.

FAULTY EYEWITNESS IDENTIFICATION  

I. Require training for law enforcement officers on eyewitness identification procedures. 

II. Require making juries aware of prior identifications of the suspect by the witness when an in-court identification is made.  

III. Require law enforcement agencies to adopt the Bill Blackwood Law Enforcement Management Institute of Texas Model Policy. 

Here, Grits wishes the commission had dug in more deeply. The biggest problem with the eyewitness ID law we passed in Texas is that there's no enforcement mechanism. If police don't follow best practices, the questionable ID cannot be excluded. And the statute includes no jury charge or other mechanism to highlight the use of problematic testimony to a jury, whom studies show are highly likely to accept eyewitness identifications as "gold standard" testimony. A recent dissent from Court of Criminal Appeals Judge Elsa Alcala demonstrated how and why problematic ID practices have been allowed to continue by Texas courts even after reform legislation had passed. In that case, an identification was allowed even though the defendant was the "sole one in the photo array matching the physical description of the shooter."

Grits isn't saying these recommendations are bad ideas; I support them. But it's one thing to require agencies to put good policies down on paper, and quite another to penalize them effectively if they then choose not to follow them. That's where Texas has fallen down.

FORENSIC SCIENCE PRACTICES  

I. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the use of drug field tests used by law enforcement agencies.  

II. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the process of crime scene investigations.  

III. Recommend that crime labs in all cases moving forward complete testing of substances in all drug cases regardless of the results of a drug field test, and that crime labs go back through previous cases in which the collected substance was not confirmed by lab testing.

These recommendations are aimed at the exonerations out of Harris County of drug defendants accused by faulty field tests. Many defendants have been falsely accused, jailed, and pled guilty to get out before the crime lab could reach exonerating results, sometimes months or even years later.

Again, Grits finds these recommendations too tepid. Perhaps most critically, they made no suggestions for rectifying notification issues regarding large-scale forensic errors. Many defendants never discover they might be eligible for habeas corpus relief, and there are plenty of systemic actors - especially among tuff-on-crime prosecutors and the Government Always Wins faction at the Court of Criminal Appeals - who would prefer they never do. The first step toward securing justice for them would be to make sure they're aware of their situation.

Harris County prosecutor gave secret deals in exchange for false testimony

One sees shades of the Orange County snitching scandal out of California in this new story from the Harris County DA's office, reported today by the Houston Press' Meagan Flynn:

A Fort Bend County judge has upheld complaints of prosecutorial misconduct against a Harris County prosecutor who lied to a jury in a capital murder trial about whether she had struck deals with three jailhouse snitches in exchange for their testimony. 

After finding that a prison inmate's false testimony that prosecutor Elizabeth Shipley Exley knowingly allowed on the stand led to the conviction of Edward George McGregor, Judge James Shoemake has recommended McGregor receive habeas corpus relief and a new trial. 

"For a prosecutor to make secret arrangements with witnesses, not disclose them to the defense and the jury, and elicit false testimony where the witnesses deny it, I find that to be just totally deplorable," said Randy Schaffer, McGregor's attorney. "It's basically saying we have the right to present false testimony and there's not a damn thing you can do about it." 

McGregor was charged in the mid- and late-2000s with capital murders dating back to 1990 and 1994 in Fort Bend and Harris counties, respectively. Shipley Exley worked on the case in Fort Bend given it was the first case to go to trial. According to the judge's findings, because DNA evidence wasn't strong enough to convict McGregor, Shipley Exley was in charge of getting three jailhouse witnesses on the stand. They testified that they overheard McGregor confess to the killings. 

Turns out, all three witnesses received some nice perks thanks to prosecutor Shipley Exley's good word. Perhaps the most damning witness was a prison inmate named Delores Gable — because her entire story turned out to be a lie.

Go here for the rest of the story.

DA oppo, snitch scenarios, improving visitation, and a welcome homecoming

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

Accusing Gary Cobb
Former Court of Criminal Appeals Judge and current Austin defense attorney Charlie Baird really doesn't want Gary Cobb to be the next Travis County District Attorney, a spot which will be effectively decided in the March 1st Democratic primary. Baird is treasurer of a PAC called Citizens for an Ethical Travis County which has put up this attack site dumping opposition research on the Democratic candidate and accusing him of "misconduct." Strong accusations, and Baird is a credible messenger, particularly among Travis County Democrats. But it's pretty late in the game to be releasing such allegations without a paid attack vehicle. A lot of folks consider Cobb the front runner in the four-way race.

Vanita's Homecoming
Vanita Gupta is not a Texan but after her involvement in the Tulia drug sting cases, as far as Grits is concerned, she remains a beloved adoptee and a personal favorite. I'm looking forward to seeing my long-time friend, who is now director of the USDOJ Civil Rights Division, when she speaks at UT-Austin's Barbara Jordan forum today. See the Statesman's preview of the event. I miss Vanita, we haven't spoken since she became a big shot.

Compensating Alfred Brown
I'll be interested to see if the Comptroller gives compensation to Alfred Dwayne Brown. Based on how they've decided cases in the past where exoneration did not result in an actual-innocence finding, it'll be a judgment call. They've given some similarly situated exonerees compensation and denied others. If they say "no," I'd expect Brown to file a civil rights lawsuit.

Waco drug cop(s) may have lied about informants
A 26-year veteran Waco drug enforcement detective has been suspended after it was revealed he allegedly "lied about his use of confidential informants to obtain arrest and search warrants," and soon thereafter his commander, a 36-year veteran and the department's first female assistant chief, was also suspended.

Reality TV footage gets alleged 'snitch' shot
Speaking of informants, a Dallas man has sued the production company of the TV show, The First 48, after they aired footage of him talking to police detectives that wound up getting him shot as an alleged "snitch." This isn't the first time the show has caused problems in Dallas.

Toward pro-family visitation policies
Check out an absolutely excellent column on problems with prison and jail visitation policies from our pal Doug Smith, who called for "frequent and meaningful contact with their loved ones in environments that allow children to be children, yet only one state has a child-friendly visitation area. Less than ten states have overnight policies, and few of these policies are geared toward overnight stays with children. Few state prison systems include family contact when developing rehabilitative programs.  How do we expect incarcerated men and women to become fully productive members of communities within the very families that will support them upon release?"

Prosecuting fish-related crime in Palau
As many Grits readers are familiar with the Attorney General of Palau (who is now back on the job after a brief, unanticipated hiatus), I should point out this fascinating piece from the New York Times Magazine which references him, though not by name, in the context of the island nation's battle to combat illegal overfishing in waters designated for conservation.

Robot parole boards, an All-American scofflaw, and other stories

Here are few items which haven't made it into individual posts but which merit Grits readers' attention:

• How overcharging and pretrial detention coerce plea deals: In Waco, a man spent 704 days in the county jail before pleading to a one-year misdemeanor sentence. Recently the Wall Street Journal published a column on "The Injustice of the Plea Bargain System," which Doug Berman excerpted here for non-subscribers. (See related Grits coverage.)
• The Houston Chronicle examined records surrounding suicides at the Harris County Jail: "In thousands of pages of autopsy reports and internal disciplinary reports, the Chronicle found 35 instances in which jailers skipped required cell checks or faked records to hide skipping them, a pattern that experts called a serious problem at county jails statewide." Further, "Screening and observation failures played a role in nine of the 28 jail suicides that occurred in the eight-county Houston metro area since the Texas Commission on Jail Standards began tracking those deaths in 2009."
• Not sure how I missed this, but a Houston PD officer was fired in October for pacing motorists' vehicles in his personal car and sending them tickets in the mail.
• A former Baylor football All-American and Dallas Cowboys draft pick was arrested in Waco with 22 active license suspensions: This is almost certainly a function of the Driver Responsibility surcharge. 
• Grits is unsure mentoring can solve indigent defense problems created by economics and the self-interest of institutional players. There's a robust mentoring program in Houston but Harris County courts are still essentially plea mills. Regardless, here's a new document from the Task Force on Indigent Defense touting mentoring programs for criminal defense lawyers who take appointed cases. I suppose it can't hurt.
• An SA Express-News story touts a new book, "Stolen Years: Stories of the Wrongfully Imprisoned."
• The Texas Observer on Border Patrol corruption: Who could have predicted that?
• Read a brief history of secret American prisons.
• Check out 60 Minutes coverage from Sunday on confidential informants and the drug war.
• Here's an important, seldom-asked question: Why punish drug users at all?
• While historically fears of robots taking people's jobs centered among the working class, lately automation has also begun to take over higher-skilled intellectual work that's repetitive and routine oriented. Which brings us to the question: Could robots replace judges or parole boards? This article ventures tentatively down the path of considering what that might look like, comparing decisions by the California parole board to outcomes from statistical models.

Prosecutor to testify over withheld informant deals

Pursuant to a Texas Court of Criminal Appeals order, on Monday in Dallas a former prosecutor will be called to testify regarding deals with jailhouse informants discovered during the habeas process which had never been disclosed to counsel at trial. See a brief announcement posted today by my employers at the Innocence Project of Texas (IPOT).

Dallas County District Judge Mark Stoltz

Dallas County District Judge Mark Stoltz

Dallas District Judge Mark Stoltz ordered the two defendants, Dennis Allen and Stanley Mozee, released on bail last year after agreeing with the District Attorney that exculpatory evidence had been withheld and they deserved relief. But the CCA remanded the case, ordering the trial court to take testimony from the prosecutor in question, which is what will happen Monday.

For more background, see past coverage from the Dallas Morning News and the national Innocence Project, which represents Mr. Mozee. IPOT represents Mr. Allen.

MORE: With Monday's hearing happening so soon before the first meeting of the Timothy Cole Exoneration Review Commission on Oct. 29, it occurred to me it may be helpful to provide links to policy resources on confidential informants related to issues which arise in these two cases and others since 2010 - most notably Richard and Megan Winfrey involving jailhouse informant testimony:

• Russell D. Covey, "Abolishing Jailhouse Snitch Testimony," 2014. 
• The Justice Project, "Jailhouse Snitch Testimony: A Policy Review," 2007.
• Center on Wrongful Convictions (Northwestern University), "The Snitch System," 2005.
• Alexandra Natapoff, "Snitching: The Institutional and Communal Consequences," 2004.
• Alexandra Natapoff, "Beyond Unreliable: How snitches contribute to wrongful convictions," 2006.
• Written testimony by Alexandra Natapoff on law enforcement's use of confidential informants to the US House Judiciary Committee, July 2007
• Robert Bloom, "Jailhouse Informants," Criminal Justice magazine (ABA), Spring 2003,
• Dahlia Lithwick in Slate on the Orange County jailhouse snitch scandal (June 2015).
• Denver Post series (April 2015): See here, here, and here.
• Pittsburgh Post-Gazette series on local "informant mill" (Oct. 2014): See here, here, here, and here.
• Washington Post (Jan. 2015) on the failure to protect informants who cooperate with police. 
• Truthout (March 2015) on a police-run jailhouse informant ring in Detroit.
• IPNY on the use of incentivized informant testimony. 
• IPNY model legislation governing informants.
• Tools for lawyers to challenge informant testimony from the ACLU.
• Snitching.org (Natapoff's blog)

Fire! Jailhouse informants and Texas arson cases

Two recent high-profile news stories shined a spotlight on the use of incentivized jailhouse snitches to supplement flawed arson science in high-profile murder cases:

• Jeremy Stahl, Slate, "The Trials of Ed Graf"
• Maurice Possley and Maurice Chammah, The Marshall Project, "Jailhouse snitch claims secret deal in death case"

Grits has no time at the moment to comment at any length. But long-time readers know the intersection of informants and flawed arson science cuts across two of my long-time interests, so I may come back to these items as the vicissitudes of time and convenience permit. For now, I'll encourage everyone to read both stories and offer up in the comments any observations, arguments or suggestions which may consequently arise.

Bar alleges DA misconduct in Willingham case, bad closed-records bill, auditing forfeitures, testing for steroids, diligent participation credits (federal and state) and other stories

Here are a few odds and ends that deserve readers' attention but didn't make it into individual posts during a busy week:

State bar accuses Willingham prosecutor of misconduct
Reported the Marshall Project, "the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters." The bar "accuses [former Navarro County DA John] Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana." From the bar complaint: "Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel. Specifically, [he] failed to make timely disclosure to the defense details of an agreement for favorable treatment for Webb, an inmate, in exchange for Webb's testimony at trial for the State."

SA4 case headed toward denouement
Again from the Marshall Project, a review of the San Antonio Four case and the difficulty of evaluating the veracity of child accusers who recant. Wrote Maurice Chammah, the SA4 cases "fall into an increasingly visible category of prisoners who have been freed due to evidence of a wrongful conviction but have not been formally declared 'innocent' by courts." This was also a case where Texas' new junk science writ came into play.

Making state employees DOB secret invites unchecked corruption
State Rep. Cindy Burkett has filed legislation to disallow people from accessing state employees birth dates under open records requests, the Dallas News reported, but this is a terrible idea that would dramatically reduce accountability in state government. As a practical matter, for an investigative reporter, a campaign opposition researcher, private investigators, citizen activists, or any independent fact finder investigating state government, date of birth is the main way one can viably distinguish individuals, especially if they have common names. (Is "Randy Jones" from the signature line of a state contract the same person as "Randall Jones" who seems to have received favorable terms on a land deal with the same company? You need a DOB to tell.) Remove that tool and much of the old-school paper trail work involving public information requests and courthouse records becomes nigh-on impossible. I understand the privacy-based impetus behind this bill, but it's profoundly misguided.

State auditor reviewing Dallas DA forfeiture expenditures
The State Auditor is investigating the asset forfeiture funds of former Dallas DA Craig Watkins following allegations that he improperly used the account to settle a civil suit over a car wreck he caused which included a gag order. The auditor's report is expected in May, reported the Dallas News.

Prison riot spurs busted contract
The feds are ending a contract with the South Texas prison where immigration detainees recently rioted, reported the Houston Chronicle. See more from Texas Prison Bidness.

State to stop steroid testing HS athletes, still no mandate to test cops
I've never understood why Texas chose to test high school athletes for steroids - despite little evidence there's a big problem with their use at that level - but never chose to test police officers, for whom there's ample evidence of significant steroid use. (To their credit, a few departments including Dallas and Arlington PD have begun testing on their own.) The state is finally going to ditch testing for high school athletes; I still think they'd expose a lot more problems by spending a fraction of that money testing police officers.

Cornyn backs aggressive sentence reductions for program participation, will Texas?
See an update on federal sentencing reforms being pushed by Texas Sen. John Cornyn. Under his bill, "Medium and low risk prisoners could earn a 25 percent sentence reduction or transfer to a halfway house or home confinement through completion of programs." That's slightly more generous, even, than the (up to) 20 percent sentence reduction which would be available to state jail felons for "diligent participation" in programming under SB 589 by Sen. Jose Rodriguez, which was heard on Wednesday in the Senate Criminal Justice Committee. Perhaps Sen. Cornyn endorsing an even more aggressive version of the same idea will help Mr. Rodriguez's cause.

Stingrays and non-disclosure agreements
The New York Times this week ran a feature on the worrisome requirement that local police departments which by "StingRays" and other surveillance devices from the Harris Corporation must file non-disclosure agreements which they claim trump open records laws or, in the case of Houston PD, even a duty to disclose to prosecutors how they use the devices. These issues will soon be prominently raised in Texas as Dwayne Bohac's HB 3165, which would require law enforcement to get a warrant to target an individual's phone using the device. His bill also trumps these sorts of NDAs, making information about Stingrays subject to the usual provisions of the Public Information Act.

How jailhouse snitch testimony can 'backfire,' even with corroboration
Vice.com has a thoughtful discussion of problems with overuse jailhouse informants, even in states like California which require corroboration of their testimony (a provision, writer Kevin Munger could have added, which Texas passed two years before the Golden State).

Disputed confession corroborated by jailhouse snitches seeking secret deals may have resulted in two false convictions

Grits apparently forgot to post anything about this story when it came out last month, so let's correct the oversight.

Two Dallas men, Dennis Allen and Stanley Mozee, who were convicted based on Mozee's disputed, un-recorded confession and the testimony of now-discredited jailhouse informants, appear poised to have their convictions overturned, the Dallas Morning News reported last month (Sept. 11). My employers at the Innocence Project of Texas along with the national Innocence Project are representing Allen and Mozee. The paper's editorial board opined the next day that, "As the underpinnings of the convictions come out, criminal justice advocates in Austin will inherit more ammunition for one overdue reform: mandatory recording of suspect interrogation." The editorial board elaborated:

Key to the prosecutions is what transpired between Mozee and a detective in the interrogation room. The detective said the suspect was well-rested and lucid for the last session. Mozee said he was strung out on drugs and alcohol and was off his psychiatric medication. Moreover, he said the detective threatened him with these words: “Somebody’s going to get the needle, and it’s going to be you if you don’t come up with something.” That last interrogation ended with Mozee signing a statement depicted by prosecutors as a confession but later disputed by the suspect himself. Further, it was at odds with other evidence in the case, the Innocence Project brief says.

The phenomenon of false or coerced confessions has been established in recent years as contributing to an alarming percentage of convictions later overturned by DNA tests. It would be foolish for state lawmakers to ignore the chance to build in a common-sense safeguard and require police to start a recording when they formally question a suspect. Jurors would be thankful for eliminating the guesswork.

The Allen-Mozee cases also illustrate the wisdom of reforms enacted by lawmakers just last year. The Michael Morton Act, which took effect Jan. 1, requires prosecutors to share key case information with the defense. Innocence Project lawyers cited numerous documents favorable to Mozee and Allen that weren’t divulged before trial — such as correspondence with jailhouse informants who expected favors in return for testimony against the murder defendants.

If prosecutors stitch together a case with witnesses such as this, the reality ought to be clear to the court. The Constitution demands it, now with backup from Texas law.

According to the Morning News report, the habeas writs hinge not just on DNA testing techniques that didn't exist at the time of trial but also newly discovered evidence that prosecutors allegedly concealed informant deals from both the defense and jurors.

Though [Dallas attorney and Innocence Project of Texas board chair Gary] Udashen said the DNA evidence is compelling, he said attorneys were startled by additional evidence they found in the prosecutor’s original case file. Under an “open file” policy adopted by District Attorney Craig Watkins in 2008, attorneys filing a writ can view the file while preparing their case.

In that file, attorneys found letters from the inmates who had testified that they’d heard the two men admitting to the murder.

During their court testimony, the informants said neither had been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the State in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while insisting to jurors “that no such discussions with these informants had ever occurred.”

The two inmates have now told the defense attorneys their testimony was false, the filing says.

[Retired prosecutor Rick] Jackson said he “never, ever made any type of deals up front. I told every single lawyer I ever dealt with that was the case and that was no different in that case.

“There were no deals in place, period, end of story.”

Udashen said he has a “high degree of confidence that the convictions are going to be set aside.”

“Whether or not it ultimately results in an actual innocence finding,” he said, “I think a lot of that is going to depend upon what the DA’s office determines in their own independent investigation.”

The Morning News is exactly right about the significance of this case vis a vis legislation to require police to record interrogations. Who doesn't think justice would have been better served - then and now, whether these two men are innocent or not - if Mozee's original interrogation and confession had been recorded and everyone could see for themselves what happened there?

As recording tech and  storage gets cheaper and easier to manage, there are increasingly scarce few viable arguments against recording interrogations except that police are afraid the public may disapprove of their techniques.

Prosecutors withheld evidence in shaky Dallas murder convictions

Two Dallas men convicted of the 1999 murder of a Dallas pastor are seeking to be declared innocent, or at least receive a new trial, "on the basis of new DNA evidence and a trial they say was tainted by false evidence knowingly presented by prosecutors." Reported the Dallas News (Sept. 11), "the two men were convicted on testimony from jailhouse informants and an unrecorded confession."

Whether or not the DNA proves them innocent, it's pretty clear prosecutors withheld exculpatory evidence. When the DA gave attorneys with the Innocence Project of Texas and the national Innocence Project their case file:

attorneys found letters from the inmates who had testified that they’d heard the two men admitting the murder.

During their court testimony, the informants said they had not been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the state in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while “insisting” to jurors “that no such discussions with these informants had ever occurred.”

The two jail informants have now told the defense attorneys their testimony was false, the filing says.

The Michael Morton Act passed in 2013 required prosecutors to make such evidence available to the defense before trial, but clearly to deal with older cases there should probably be some sort of post-conviction discovery available in habeas proceedings. If Dallas DA Craig Watkins' office hadn't voluntarily opened up its files in this case, the underlying prosecutorial misconduct would never have been discovered.

It's also worth mentioning that the original case relied heavily on jailhouse informants, but if the case were retried today that testimony would have to be corroborated. Texas law didn't include such a requirement until 2009 when state Sen. Juan "Chuy" Hinojosa passed a corroboration mandate for jailhouse snitch testimony.

Marshall Project: Prosecutor misled court about aid to Willingham snitch

The brand spanking new Marshall Project, a nonprofit journalism project focused on criminal justice, launched its first big feature this week: An examination by Maurice Possley of the remaining evidence against Todd Willingham outside of now-debunked arson testimony, honing in in particular on a confidential informant, Johnny Webb, who later recanted his testimony. Possley was one of the Chicago Tribune reporters who first credibly alleged that, by killing Willingham, Texas may have executed an innocent man.

The New York Times earlier this spring reported that Webb's cooperation agreement had never been disclosed to the defense. The Marshall Project's notable addition to the story: At trial, John Jackson told the court the informant received no benefit from his testimony. But in reality, he arranged substantial financial assistance through a third party and aggressively sought clemency for Webb even after he ascended to the bench and was no longer a prosecutor, Possley reported. The article does a nice job of linking to primary sources for most of its more controversial claims.

See more analysis of the new revelations from a national Innocence Project press release. The Dallas News editorial board opined in response that, "Outrageous allegations of unethical or illegal gamesmanship in the prosecution of Cameron Todd Willingham, who was executed in 2004, need a thorough and transparent examination by the State Bar of Texas."

Combine this Marshall Project article with David Grann's New Yorker piece on the case, the Texas Forensic Science Commission's mammoth report (large pdf) on junk arson science in this and the Ernest Willis case, Possley's original Chicago Tribune report (with Steve Mills), Judge Charlie Baird's never-issued opinion from the halted court of inquiry, and, if I may be so bold, Grits' Willingham coverage, which contains links and references to lots of contemporary material, and you'd have a pretty decent summary of all that's happened before and after Willingham's 2004 execution.

This deadly fire nearly a quarter century ago in Corsicana must be one of the exhaustively reported (probably non-) crime stories of the modern era. If it can be uncovered via methods of law, journalism, science, or government inquiry, it's likely been explored in the Willingham case. Ironically, so many resources have been thrown into this endeavor precisely because Todd Willingham is dead. If he'd been incarcerated on a life sentence like Ed Graf (who won a new trial, delayed until September while the DA looks for their lost files, and is now sitting in the McLennan County Jail), sadly I doubt the national press would blink an eye.