Presumptive Travis DA Jose Garza on death penalty, women's jail, and membership in TX state prosecutors association

The Marshall Project's prolific Keri Blakinger generates more copy than her employers will publish, so she's been sending Grits an occasional email featuring unpublished odds and ends. Today, we have a few tidbits from a recent interview Keri conducted with Jose Garza, Travis County's presumptive Democratic District Attorney pending tomorrow's election (he has an opponent, but the Democratic primary is the real race in Austin).

Keri spoke to Garza about the death penalty, building a new women's jail, and whether he intended to retain membership in the Texas District and County Attorneys Association. Enjoy!

Hey Grits,

A couple weeks ago I had a chance to Zoom chat with Travis County DA candidate Jose Garza. A lot of our talk was on background - but I just wanted to pass along some of the points that were not, and that might interest you and your readers. These are kind of off-beat questions because I was trying to ask about details I hadn’t seen discussed elsewhere - and the many prior interviews he’s done have covered a lot of the basics, plus his website is pretty detailed.

So at this point we already know that he’s pledged not to use civil asset forfeiture without a conviction, that he will stop prosecuting less than a gram drug cases, will put more resources toward serious crimes like sex assault, and various other things you have outlined previously.

Given how progressive his platform is, I was interested in whether he’d pull Travis County out of TDCAA. A few months ago on Twitter, he was pretty clear that he would: “TDCAA has been one of the largest impediments to progress at the TX state legislature,” he tweeted. “I’m running for DA to build a system that lifts up working people and people of color. When elected I will not be joining the association.”

And some elected prosecutors elsewhere - like Philadelphia and California - have cut ties with their respective DA associations because they were too regressive or “out of touch.” But as you pointed out to me, TDCAA provides training and other support that would have to be replaced so it’s not as simple as just walking out the door. When I asked TDCAA, they said that about 30 elected prosecutors in Texas are already not members. So it seems there is some precedent here for non-membership.

When I asked JG about all this a few weeks ago, initially he said that he would be evaluating existing relationships to figure out which are in line with the office’s goals before making any decisions. But when I circled back to ask if that was different than what he’d tweeted in January he clarified that he still hopes to exit TDCAA and basically is just figuring out what that looks like at this point: “It remains a goal to me,” he said. “It remains a goal to make that there is a better structure for truly representing the views of district attorneys and the people they are accountable to.”

I realize this is a lot of words I just spent on what is really a very niche thing to be interested in, but I hopefully Grits and Grits readers might share my niche interest.

In other, slightly-less-niche interests, I also asked him some about capital punishment. He’s talked before about opposing the death penalty, but I wanted to know if that meant that he would actually stop defending the existing death sentences that are in post-conviction litigation now - which is about half a dozen cases. When we spoke, he pledged to review those cases, but didn’t say whether he would defend death sentences if the convictions themselves seemed solid.

“We will be reviewing all of those cases to aggressively seek out innocence but not just innocence, constitutional defects in cases,” he said. “I presume that post conviction that there are probably challenges, there are probably actual innocence claims… as a matter of course no we are not just going to presume that all of these cases should continue to be defended.”

It’s not quite a clear answer to what I was getting at, but I’ll be interested to see how this develops.

The other thing we talked about the most on the record was the new women’s jail, which he’s previously said he opposes. As Grits readers probably know, Travis County has been working on building a new women’s jail for some time now. The proposal to replace it would create more beds, but the current one is shitty and doesn’t have good program space. As someone who has actually spent time in a jail, I always want to know exactly why when people oppose doing something that would improve shitty living conditions.

“I’m in favor of less shitty,” he said, “but for me this is about math and this is about resources. I think what the county is attempting to accomplish and what the sheriff is attempting to accomplish is admirable and is the right thing because there will continue to be people in our jail and we have a responsibility to make sure everyone there receives the best care.”

But not if it requires a bigger jail - which he believes will be even more unnecessary when he’s in office:

“There are a couple of hundred people in the jail right now and it’s about 500 short of capacity – it’s at something like 30 percent capacity, for women in particular,” he said. “And on top of that Travis County is going to have a new DA and new county attorney that have pledged significant steps that would reduce the jail’s population. I’m not convinced that when the trendline is decreasing jail populations… that the best way to care for the shrinking population of people in the jail is to build a brand new $98 million facility.”

Anyhoo, that’s a lot of words and I’ve droned on quite a bit about some obscure topics here so enjoy.

Grits here: Just to say so, since Keri didn't, Garza's answer on pulling out of the DA's Association was insensible, answering a yes-or-no question about a pretty-clear campaign promise with pure squish.

To be clear, I like Jose, while TDCAA has for two decades resided on Grits' frenemies list. It would tickle me to no end if DAs from the big counties started to walk away from the state prosecutors' association. At the same time, I marveled when Garza made that pledge in the first place. My immediate first thought was, "He hasn't considered everything that would entail." So Grits wouldn't blame him for not knee-jerk pulling out of TDCAA in January without a plan. After all, that's the organization that provides most of their training.

Plus, Garza will be arriving just as the legislative session gets underway: The biggest complaint about TDCAA from reformers is them thwarting reform bills behind the scenes. Once session begins, Garza can assess for himself whether it's possible to influence the organizational culture from within.

TDCAA has historically been a problem for the Texas #cjreform movement, and Garza along with other elected big-county prosecutors perhaps can help solve it, whether by working from within or leaving and doing their own thing. Their rural counterparts may outnumber them when it's time to vote for board members, but big counties' dues provide most of their funding.

RELATED: From the Texas Observer, "Jose Garza redefines 'progressive prosecutor'"

Implementing the Michael Morton Act

For those interested, the Texas District and County Attorneys Association posted their Brady/Michael Morton Act training materials online, as well as a list of prosecutors in compliance with new legislative training requirements under the law.

See this earlier Grits discussion of emerging issues with the Michael Morton Act, including examples of noncompliance and odd legal interpretations by some prosecutors. That post adumbrates a report published this spring on the topic and your correspondent recently recorded an interview with one of the authors, which I'll wait to post while I'm on vacation next month.

Prosecutor's jeremiad against open-file law met with uncomfortable silence

Several days ago on the Texas District and County Attorneys Association user forum, prosecutor Terry Breen from Goliad suggested that, although "The TDCAA has a long standing policy of being neutral on pending legislation. This needs to change."

Why? "During the last legislative session," Breen alleged, "the result of this passivity was the passage of the Michael Morton Act, which expanded the defendant's right to discovery from exculpatory and mitigating evidence--'Brady material'--to include effectively any relevant evidence, including incriminating evidence that the state might wish to not even use at trial." (This, btw, is revisionist history: TDCAA was intimately involved in negotiating the language of the Michael Morton Act; it was their decision to drop the demand for reciprocal discovery that got the deal done.)

Mr. Breen believes that, "The Association should come out publicly for repeal of this ghastly and costly mistake, and then campaign vigorously to that end. Since the act is a costly unfunded mandate on the counties, county judges should be recruited to press for its repeal as well."

His jeremiad, though, has thus far been met with an uncomfortable silence on the normally active user forum. If there's an uprising on the horizon, it's not showing up in that venue. Long-time readers may recall that Mr. Breen made similar complaints when the bill first passed and not all of his colleagues agreed with him. Grits admits the law may not be perfect but has argued that, since it only took effect in January with seemingly no major hitches - beyond a few DAs grumbling about unfunded mandates - the Legislature should leave it alone for a session to give counties around the state time to implement it, judges time to rule on it, appellate courts a chance to consider it, etc., and then evaluate how it has played out. They'll have a lot more information to work with if the Lege evaluates and possibly tweaks the Michael Morton Act in 2017, perhaps making it the focus of some committee's interim charge.

But Mr. Breen doesn't want to tweak the law, he wants to repeal it, going back to what I suppose in his mind's eye were the good old days when he got to decide what defense attorneys did and didn't see in his case file.

Whatever one's view of the Michael Morton Act, and Grits is a strong supporter, Breen is deeply misguided to encourage TDCAA to actively campaign for or against legislation. Too many prosecutors disagree on these and various other questions for the association to always speak with one voice. It would put their full-time staff in an impossible position.

Besides, it's not true TDCAA takes no positions on legislation. They register as officially neutral but routinely speak for or against bills all the time in such an obvious fashion that it's a bit of a running joke in the committees before which they routinely testify. They also facilitate elected DAs and their reps showing up at the capitol to testify and they definitely take positions. This feigned neutrality has been quite an effective tactic for TDCAA over the years and if they began taking pro/con positions bill-to-bill, as Breen asks, it would reduce their effectiveness at the capitol and needlessly create divisions among their base.

If I were their political consultant, I'd discourage TDCAA from taking Breen's advice. OTOH, there's a darker side of me that considers, as a supporter of reforms like the Michael Morton Act, that criminal-justice reformers can only benefit if the prosecutors association were to adopt less effective tactics or even implode through internal dissent. But it appears the group's leadership is probably smarter than that. Don't take the bait, Rob and Shannon. Y'all know better.

Texas criminalized uprooting seagrass, legalized switchblades (but not daggers, dirks, stilettos, poniards, or Bowie knives)

Were you aware that the Texas Legislature this session legalized switchblade knives? Me either, but HB 1862 by Dutton removed switchblades from the list of prohibited weapons in Chapter 46.05 of the Penal Code. However, the Penal Code at 46.01(6) still lists under the definition of "illegal knife" any knife with a blade over five and one-half inches; any hand instrument designed to cut or stab another by being thrown; a "dagger, including but not limited to a dirk, stiletto, and poniard"; a Bowie knife (scandalous in Texas, no?); a sword; or a spear. So a spring-loaded knife with a blade under 5.5 inches is legal so long as it's not a dagger, dirk, stiletto or poniard. Got it?

Where else are you going to get that kind of information? Thanks to the generosity of Grits donors, on Friday I attended the biennial legislative update from the Texas District and County Attorneys Association, which kicked off a statewide tour giving CLEs about changes in criminal law this past session. (To contribute to this sort of coverage, hit one the Pay Pal button in the right-hand column. Between $125 for the training plus a few recent research and travel expenses, Grits' blog coffers are running low.)

TDCAA's Shannon Edmonds put up a telling slide depicting the number of new crimes created by the Legislature each session (excluding mere penalty "enhancements," or increased penalties for existing crimes):

2001: 34

2003: 23

2005: 49

2007: 50

2009: 40

2011: 53

2013: 41

New crimes this year include "Uprooting seagrass plants" (Class C misdemeanor) and "performing device maintenance services without a license (Class B misdemeanor, Class A for a subsequent offense).  Drone fans will recall the new prohibition on "possession, display, disclosure, distribution or use of image captured by unmanned aircraft" (with many exceptions). And it's now an offense for motorcyclists to carry a passenger if their bike doesn't have footrests and handholds. The list goes on.

In addition to 41 new crimes, TDCAA counted 25 new criminal penalty enhancements, including."criminal slander or libel of a savings bank" (now a state jail felony). Perhaps a more important enhancement was to boost the penalty for witness tampering in family violence cases to a second or third degree felony, depending on the circumstances. That one could get used far more often than anyone would ever slander a savings bank. Making, selling or altering a car's airbag without proper credentials can now be a first degree felony if death results. Failure to stop and render aide is now a second degree felony if the person dies. And while prostitutes may be treated more gently under diversion programs the Legislature approved, criminal penalties for pimps were increased all the way up to a first degree felony (5-99 or life) if one or more prostitutes was under 18.

"Horror stories" drive policymaking on criminal justice, prosecutors were told, so if they want their bills to pass they should look for horror stories that exemplify the need for them the way the Michael Morton case drove criminal-discovery reform. (Morton, incidentally, has agreed to be the keynote speaker at TDCAA's annual conference.) For a moment, the group thought the Kaufman County prosecutor murders were going to become that sort of high-profile, policy changing case, they said, but the media and legislators lost interest when it turned out the perpetrator was a former Justice of the Peace and not a member of the Aryan Brotherhood or a Mexican drug cartel.  The Legislature did make birth dates and home addresses confidential on certain public documents for prosecutors and peace officers but not much else was done in direct response to those events, they said.

One horror story from half-a-continent away that did gain traction was the school shooting episode in Connecticut. In response, the Texas Legislature created a new system of armed, undercover school marshals. But the idea is already running into resistance, said Edmonds, because insurance companies don't want to cover school districts employing said marshals, apparently fearing that an anonymous, armed adult on campus might get shot by police responding to a chaotic active shooter situation. I hadn't followed this development; only time will tell how it plays out.

Much attention was paid to the so-called "Michael Morton Act" mandating open files by prosecutors. Kepple said the bill was never run through the Legislative Council so as written it's "a little boogered up." The bill essentially codifies Brady v. Maryland, they said, requiring the state to document what it does and doesn't give to the defense. The defense bar, in turn, can't share that information with third parties, including the media, before it's submitted into evidence. There was some discussion of the lack of penalties if defense attorney abuse open-file privileges. Before this law, prosecutors could threaten to withhold discovery in future cases if defense lawyers released confidential information. Now that's a hollow threat. The law requires disclosure. If they can find the right "horror story," perhaps prosecutors will seek penalties next session for defense attorneys who release information without proper authority. OTOH, Kepple pointed out, there are also no penalties for prosecutors who don't comply with the law, so it's possible they'd be better off leaving well enough alone.

 They mentioned a couple of bills familiar to Grits readers: One expanding access to habeas corpus writs in junk science cases and another requiring warrants for cloud-based email and other digital content. I'm still pretty pleased about both of those.

Judges must now formally ask the state whether they've received a victim impact statement in cases where they're authorized. Apparently 2/3 or more of the time they'll be told "no." Most victims decline to provide them, said Edmonds. Victims can also decline to be contacted by the defense in capital murder cases as part of "defense initiated victim outreach," which Kepple described as a predator "in sheep's clothing." The new statute says victims may designate someone at the prosecutor's office to interact with the defense counsel, though it's not required. If this option is widely used, I bet it's because prosecutors push for it, not victim families.

Edmonds chided the Legislature for continuing to create human trafficking offenses when few if any prosecutors in the field are running across those sorts of cases in their regular practice. He asked the audience if anyone had used the statute and no hands visibly rose. There's a new reporting requirement for prosecutors on human trafficking and a new civil cause of action.

Grits has been attending these post-session TDCAA wrap ups for several sessions and I'll give them credit for consistency. When Texas passed its much ballyhooed Life Without Parole (LWOP) legislation for adult capital cases in 2005 - a bill Grits disliked at the time - TDCAA's Edmonds and Rob Kepple opined that the Legislature could not prevent themselves from expanding the use of the penalty to non-capital crimes, predicting that LWOP sentences would result in a sort of mission creep beyond just its role as an alternative to the death penalty.

That turned out to be prescient. Though LWOP was pitched as an alternative to the death penalty, in 2007, Kepple pointed out, the Lege added LWOP on a second conviction for continuous sexual abuse of a child. In 2011, they created an LWOP punishment for human trafficking and second-offense agg-sex assault. This year they added sexually violent offenses against a child under 14. Now that the penalty exists, Kepple pointed out, politicians of all stripes inevitably will seek to apply it in more circumstances. Though he didn't say so, this sets the state up for our grandchildren to pay for constitutionally required medical care for elderly prisoners the state can't release 40-50 years down the line. It also gives prosecutors enormous leverage to coerce plea bargains in cases where the penalty may be applicable. Along the same lines, the Legislature created several new mandatory minimums including for organized criminal activity and injury to a child, increasing the amount of time before offenders become parole-eligible. One can't expect TDCAA to complain about prosecutors being handed a bigger club, but implicit in Kepple's comments was a sentiment that it's probably not a wise policy choice: Texas' criminal penalties have long been tough enough.

Grits may have more tidbits to come from the "Legislative Update" manual that accompanied the program but those are the highlights from my notes.

RELATED: See the Texas Criminal Justice Coalition's lists of reform-oriented criminal justice bills that passed and bad bills defeated in the 83rd Texas Legislature.

Legislators blast prosecutor association for Twitter taunts

The Texas District and County Attorneys Association was called out in the House Criminal Jurisprudence Committee today for "demagoguery" on its Twitter feed by Rep. Matt Schafer, while Rep. Steve Toth called their lobbyist Shannon Edmonds "totally disingenuous" and "dishonest" for some of his Twitter comments accusing committee members of being sympathetic toward cop killers.

The episode reminded me of John Bradley's posts on the DA's user forum coming back to haunt him in the Senate Nominations Committee last session, except this essentially happened in real time, with Shannon tweeting from the back of the room and legislators calling him out for it on the dais.

Over the years I'm afraid Grits has become jaded. I've heard that sort of demagoguery so often from prosecutors' representatives at the Lege that it almost seems normal. But clearly most of the legislators on the dais hadn't been exposed to such attitudes.

They were debating SB 23 remaking sentences for capital offenses committed by juveniles to comply with the Supreme Court's ruling in Miller v. Alabama. The bill passed out of committee 7-2 in the same form it cleared the Senate but will likely be amended on the House floor.

UPDATE: Go here to watch the exchange, which begins with comments by Rep. Toth at the 43:50 mark. Rep. Schafer chimed in on the topic at the 53:10 mark, followed by Reps Carter and Canales.

MORE: See SA Express-News coverage of the hearing. The bill is scheduled for a House floor vote on Friday.

Richard Viguerie on conservatism and criminal justice

A remarkable editorial published yesterday in the New York Times by right-wing direct-mail guru Richard Viguerie makes the "conservative case for prison reform." The article opens with this bold pronouncement: "Conservatives should recognize that the entire criminal justice system is another government spending program fraught with the issues that plague all government programs. Criminal justice should be subject to the same level of skepticism and scrutiny that we apply to any other government program."

The aging conservative fundraising pioneer concluded, "By confronting this issue head on, conservatives are showing that our principles lead to practical solutions that make government less costly and more effective. We need to do more of that. Conservatives can show the way by impressing on more of our allies and political leaders that criminal justice reform is part of a conservative agenda."

I wonder how our friends at the police unions and the prosecutors' association feel about that? Those special interests have become accustomed to much greater deference from self-styled conservatives than the movement has lately displayed toward them. As a result, they've tended to become resentful of the grassroots conservatives who presently control the Texas GOP.

In 2011, TDCAA's lobbyist Shannon Edmonds wrote that "This session's infusion of Tea Party sentiment in the legislative process has affected the standard law and order calculus that we use to gauge the potential fate of various bills. That 'Tea Party sentiment' can be boiled down to this: 'The government is the enemy. You work for the government. Do the math.'" He and Viguerie essentially agree on the conservative view of the justice system. The "enemy" rhetoric evinces paranoia, but Edmonds is right to fear that 21st century movement conservatives aren't as likely to give law enforcement a pass as their predecessors a decade or two ago.

Viguerie justly credits Texas for pioneering efforts in 2007 to reduce incarceration rates instead of spending an extra $2 billion or so on new prison construction. Texas has been deservedly lionized for its 2007 probation reforms, as were Sen. John Whitmire and since-retired Rep. Jerry Madden who co-authored the reforms. But here in the Lone Star State we're painfully aware that, since then, the state has been resting on its laurels and subsequent sessions, including the most recent one, failed to follow up with more substantive de-incarceration reforms.

Still, Viguerie's column is an adept, concise statement of small-government conservative principles on criminal justice and provides a useful template for pitching criminal-justice reform issues to movement conservatives, for whom Viguerie is a virtual godfather. Good stuff. Bully for Marc Levin and his "Right on Crime" coalition for recruiting so many high-profile conservative bigwigs to their cause.

Via The American Conservative.

By the numbers: 83rd TX Lege created 33 new crimes (6 of them felonies), passed 20 enhancements

After shifting their weekly legislative updates exclusively to email instead of posting them on their website during the final weeks of the session (perhaps Grits was quoting from and linking to them too frequently?), the Texas District and County Attorneys Association has posted a legislative recap that may interest Grits readers. Here's an interesting "by the numbers" summary of 2013 criminal-justice legislative action at the Texas Legislature:

The final tally.  The Legislature ultimately passed almost 1,300 bills and joint resolutions, of which we were tracking more than 300.  Here are some early numbers on the bills that passed (noting that some of these categories may overlap):

            Code of Criminal Procedure (# of bills): 76
            Penal Code: 45
            Traffic laws: 33
            Juveniles: 21
            Increasing punishments: 20
            Firearms: 19
            New Class As or Bs: 18
            Sex offense/offender: 17
            New duties for prosecutors: 12
            Human trafficking: 11
            Family violence: 11
            New Class Cs: 9
            Reducing punishments: 8
            New felonies: 6
            Controlled Substances Act: 3
            DWI: 2

These are rough numbers based on our tracking software.  We will nail down "official" numbers after we summarize these bills in our popular Legislative Update book, followed by our famous traveling road show this summer. 

So if those numbers hold, that's 33 total new crimes (6 new felonies, 18 Class A and B misdemeanors, and 9 new Class Cs), plus 20 bills increasing punishments for existing crimes and a remarkable 8 bills reducing punishments. Though it sounds like a lot, that's far fewer new crimes and enhancements than the Texas Lege has typically approved in past sessions. Heck, usually "reducing punishments" wouldn't even be a category!

It should be mentioned that TDCAA's count uses Shannon Edmonds' own nomenclature and the number of new crimes he estimates may not jibe precisely with, say, the number the parole board comes up with when they assign each new crime a risk factor for release purposes. Despite the occasional philistine suggestion that it's possible to come up with a hard and fast number, counting crimes is an inherently subjective task. Like federal law, Texas has reached the point where the number of criminal statutes is literally "countless"; nobody really knows for sure how many crimes there are anymore.

I'm looking forward to discovering what are the 12 new duties of prosecutors when TDCAA begins holding its legislative update seminars. (Grits has already signed up for one of the Austin events.) Go here for information if you'd like to attend one of TDCAA's legislative updates (worth 3 hours of CLE credit) for their take on the important changes made by the 83rd Texas Legislature that affect their members.

Texas sentences for 17-year old murderers fine as they are: No need for special session call

So far, Gov. Perry has resisted adding anything to the special session call besides redistricting and Grits' must admit I'm grateful. Unless he surprises me and put warrants for cell-phone location data on the list (which he should), not much good can come of any of the criminal-justice topics the Governor is most likely to add to a special session which some, like Lt. Gov. Dewhurst, would like to fill with right-wing red meat.

One surprising omission so far has been the failure of the 83rd Legislature to establish a legal punishment for 17-year old capital offenders. Texas treats them as adults but the US Supreme Court considers them juveniles. So SCOTUS rulings banning the death penalty and life without parole (LWOP) for juveniles have left Texas with no legal punishments on the books for 17-year olds charged with capital murder. They can still be charged with "regular" murder, which could get them a sentence of up to 99-life, but with the eventual possibility of parole.

Grits doesn't consider that an especially unfair sentencing range and sees no pressing need to change it, but from the prosecutors' rhetoric you'd think the end of the world is nigh. Some thought the issue was pressing enough to call a special session back in 2012, and in years past one would have expected anything from the DA's must-have wish list to immediately make a special-session call. But as we've discussed earlier this session, prosecutors' clout at the Texas Lege has lessened and they don't automatically get what they want anymore, though in this case I'll be surprised if the Governor ignores their demands completely.

During the regular session there are hundreds of bills to monitor on a zillion different topics and every lobby interest must make cost-benefit analyses regarding where they spend their time. Likely for that reason, nobody really focused much on SB 187 besides the prosecutors who brought it to Sen. Huffman. The bill responded to the Supreme Court's Miller v. Alabama ruling by giving juries a choice when sentencing 17-year old capital murderers: life without parole or life with the possibility of parole. No other options. It died for time of its own accord thanks to the House leadership's annoying habit this session of slow walking bills through the process.

But that means, in a special session, if it's added to the call then criminal-justice reformers can pay more focused attention and perhaps improve the bill from its earlier form, or preferably kill it. At Defending People, Mark Bennett recently laid out the core shortcoming of Sen. Huffman's solution to this "problem" as articulated in SB 187: It arguably doesn't comply with the Supreme Court's ruling in Miller v. Alabama which, as Bennett said did not simply mandate the possibility of parole but"the oppor­tu­nity for the sen­tenc­ing author­ity to con­sider mit­i­gat­ing cir­cum­stances." That sentencing goal is better served by prosecuting 17-year olds (and for that matter 14-16 year olds) under "regular" murder statutes.

By contrast, wrote Bennett, "Huffman’s bill would replace life with­out parole in the capital-murder sen­tenc­ing statute with mur­der life (with the pos­si­bil­ity of parole after forty years). What she is try­ing to take off the table is the jury’s dis­cre­tion to take into account mit­i­gat­ing cir­cum­stances and sen­tence a child mur­derer to less than life."

Criminal-justice reformers should oppose adding another version of SB 187 to the "call." The law handles these cases just fine as it stands and Texas prosecutors simply need to adjust to the new reality. If the issue is added, though, someone besides Huffman should propose an alternative solution: to eliminate "capital" murder for 14-16 year olds to comply with the discretion demanded by Miller in their sentencing. Bennett's interpretation of Miller is utterly mainstream and yet was barely articulated as SB 187 meandered through the process. That should change if the Lege takes the issue up again during the special session.

Prosecutors dissing the Michael Morton Act, and defending it

At the Texas District and County Attorney Association's user forum, see 24th judicial district ADA Terry Breen's embittered critique ofTexas' new mandatory open file policy for prosecutors - he's mad that he may have to give up incriminating as well as exculpatory evidence - followed by a quite reasoned response from forum regular Greg Gilleland which explains in essence why TDCAA supported a "one-sided" open file bill. Steamed Breen, "This is the most anti-law enforcement bill to come out of the legis. in memory. The fact that it was pushed by the leadership of the TDCAA makes it especially galling, and the fact that it was sold as a bill that 'all the stakeholders,' (i.e. including you and me) is even more galling." Gilleland responded:

I've had an open file policy for my entire career. Folks like my old boss, John Healey and my current boss, Bryan Goertz, mandated it. I never had a problem with it. They felt it necessary for the accused to know all the evidence against him and I have always agreed.

If you search this forum you'll find some debates from years past between myself and former DA John Bradley. In those exchanges, I argued for an absolute open file policy like I practiced with. He disagreed.

Being the son of a former prosecutor and a long time defense attorney had convinced me that abuses in closed files could only be cured by having an open file. ...

My open file policy and my copied file policy have not prohibited me in the least from obtaining big sentences for bad violent criminals over the years. It has NEVER handicapped me even when it revealed facts adverse to my case. And of course, it eliminates a plethora of appellate issues.

I really recoiled in horror when former DA and now Judge Anderson testified to the effect that he wouldn't be much of a prosecutor these days if he had to give everything to the defense and that he would lose a lot.

When I've lost, it wasn't because of the open file policy but because of the facts and the truths they revealed.

And so on. The whole thing is worth a read.  The Governor has already signed the "Michael Morton Act" so Mr. Breen is crying over spilled milk. Come January 1, 2014 it will be the law of the land.

RELATED: From the SA Express-News, "Bill requires new ethics training for prosecutors."

The Weakest Link: TDCAA agrees nearly 5,000 cases "may all be jeopardized" by DPS lab worker misconduct

On Wednesday, Grits reported that potentially all of the 4,944 cases worked by a since-discredited DPS crime lab worker may be thrown out, and this morning an appellate case summary posted at the prosecutors' association agreed that those cases "may all be jeopardized." From the Texas District and County Attorneys Association's March 15 Weekly Case Summary:

Ex parte Sereal

No. AP 76,972        3/6/13 (per curiam; substitute opinion)

Issue:

Was the defendant entitled to habeas relief because the lab technician solely responsible for testing the evidence in his case was found to have committed misconduct?

Holding:

Yes. Although there is evidence remaining that is available to be retested in this case, that evidence was in the custody of the unreliable lab technician. Because the technician committed misconduct and his actions are unreliable, custody was compromised and resulted in a due process violation.
Read opinion

Commentary:

A chain is only as strong as its weakest link. This one analyst handled thousands of cases in the Houston area, and due to the breadth of the opinion, they may all be jeopardized. Situations like this, and caselaw such as Melendez-Diaz and Bullcoming demonstrate that the Legislature perhaps needs to increase crime lab funding so that two analysts can work each case rather than one.

Notably, budget writers in the Texas House and Senate haven't even contemplated increasing DPS crime lab funding "so that two analysts can work each case rather than one." Why would they? If they rely on the MSM for news, none of this has been reported anywhere except Grits. Chuck Lindell at the Austin Statesman has begun poking his nose into the subject, but otherwise, MSM reporters, where the hell are you on this one?

See prior, related Grits posts:

• Thousands of drug cases may be overturned because DPS lab worker allegedly faked results
• DPS crime lab SNAFU may overturn thousands of years worth of drug sentences
• Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challenged
• Bad apple at DPS crime lab could spoil barrel of convictions
• DPS analyst who faked results worked on 4,944 drug cases
• Drug analyst at DPS crime lab issued erroneous reports

Why is the Legislature taking up prosecutor accountability? Two theories

Grits had mentioned the other day that, on Tuesday, the Senate Criminal Justice Committee will take up Chairman John Whitmire's SB 825 making sustained grievances related to prosecutorial misconduct public records and extending the statute of limitations for State Bar sanctions when prosecutors hide exculpatory evidence. Lisa Falkenberg at the Houston Chronicle last week ("Prosecutors need to be accountable for their actions," March 6) previewed the "we're the victim" mentality that will surely be on display by prosecutors when that bill comes up, offering the obvious rebuttal:

In an ethics training video leaked recently by someone at the Harris County District Attorney's Office, the trainer, Rob Kepple, seems genuinely puzzled at one point by the question of why the topic of prosecutor accountability is such a big deal these days.

"I got a theory," Kepple, executive director of the Texas District and County Attorneys Association, tells a room full of Harris County prosecutors. "I think it's because we're pretty much done with the DNA exonerations. … We've tested just about everything we can. Now you've got a whole big exoneration machine that doesn't have anyone to chew on anymore."

So, he concludes, it only makes sense to go after prosecutors. We - presumably the media, the public, the lawmakers and the Innocence Project - need something else to chew on.

I take a different view. I think prosecutor accountability is a big issue because former Williamson County prosecutor Ken Anderson - who sent Michael Morton to prison for a quarter century for a murder he didn't commit - is still sitting on a bench, wearing a judge's robe, hearing cases.

It's a big issue because the former district attorney, John Bradley - who fought the DNA testing that finally exonerated Morton - is still giving talks and applying for state jobs. Kepple is still defending him for having done nothing illegal or unethical.

It's a big issue because the former Burleson County prosecutor, Charles Sebesta - who sent Anthony Graves to prison for 18 years, 12 on death row, for murders he didn't commit - is still training officers through the Sheriffs' Association of Texas, and taking out full-page newspaper ads maintaining he did nothing wrong.

To which theory do you subscribe?

Kepple touts a self-serving analysis by TDCAA claiming prosecutorial misconduct is extremely rare, but a Texas Tribune investigation last year into the causes of false convictions among Texas exoneration cases found prosecutor error - most frequently Brady violations (17 out of 21 cases) - played a role in nearly a quarter of them. If Sen. Whitmire's legislation passes, at least the public will have a better idea if the state bar can or will address the matter. That would be a small but important step toward restoring public confidence.

MORE: See coverage of the bill hearing from the Texas Tribune.

Pulling back the curtain on prosecutor paranoia

Ever wonder how prosecutors speak to one another when they think no one's watching? Conservative blogger Big Jolly, a GOP activist in Houston, pulled back the curtain, obtaining a copy of a video under open records of the first mandatory prosecutor training under new Harris DA Mike Anderson, conducted by the Texas District and County Attorneys Association. Here's an excerpt from Jolly's summary:

The entire tone of the video suggests a sort of “bunker” mentality, an us against them, almost a “whine-fest” from the trainer, Rob Kepple of the Texas District and County Attorneys Association. Did you know the Innocence Project is the “enemy” of prosecutors? Nevermind that their work has resulted in the release of innocent men and women convicted by prosecutorial abuse. DA Anderson goes so far as to say that in the eyes of the Innocence Project, prosecutors are nothing more than pondscum. I suppose the old axiom is true – no good deed goes unpunished.

The “training” also describes our legislature as “out to get them” – “them” being prosecutors because they are “government employees” and the legislature apparently hates government employees. Oh, and the only reason crime has gone down since the 1980′s in Houston is because the legislature built more prison capacity. But now, “they” want to release criminals in prison for minor offenses because it is a whole lot cheaper to put someone on probation than it is to house them in a prison. Imagine that.

Mr. Kepple goes through a whole series of how people cheat in life and it isn’t cheating if you get away with it. I think his point was to say that prosecutors can’t do that but you’ll have to watch it to see how bad he made that point. And remember Pedro Oregon? You know, the guy that was killed dead, dead, dead because a bunch of yahoo cops forced a drunk driver to give them the address of his “dealer” and then started shooting for no reason? Yeah, he presents that as an example of using Johnny Holmes’ stellar reputation to get away with anything. Just totally bizarre.

Having worked for several years for the Innocence Project of Texas, I'm pretty used to prosecutors considering that group the "enemy," though like Jolly I've never fully understood it. After all, when an innocent person goes to prison, that means a guilty person remains free. One would think prosecutors would have an interest in rectifying that situation. Still, we see instances like in Williamson County, where DA John Bradley fought for years to keep the national Innocence Project from testing evidence that eventually exonerated Michael Morton. Does anybody believe that, if Bradley had agreed to DNA testing when it was first requested, that Judge Ken Anderson would currently be facing judgment in a court of inquiry? Things got to that point because, thanks to the bellicose stance of the DA, a balls-to-the-wall fight was the only way to prove Morton's innocence. The open-records requests that discovered alleged prosecutorial misconduct would never have even been filed if Bradley had agreed to retesting from the get-go.

Similarly, the idea that the Repbublican-dominated Legislature somehow hates prosecutors or is soft on crime beggars belief, but prosecutors and the police unions see themselves particularly at odds with freshman and sophomore Tea-Party types. These special interests are so used to absolute deference that they consider even modest questioning of their practices tantamount to betrayal.

I'll be interested to learn what Mark Bennett, Paul Kennedy, Robb Fickman and other Houston criminal defense lawyers think about the presentation. Sounds like quite a show. Grits hasn't had time to watch the full video yet, and may have more to say about it after I do. (I've heard Kepple's schtick and such paranoid, "us against them" rhetoric fails to shock me as much as it once did.) For now, head over to Jolly's shop to see it for yourself.

MORE: From Big Jolly, breaking out highlights from the two-hour event.

More than 130 new crimes, penalty enhancements filed so far

According to Shannon Edmonds at the Texas prosecutors' association, of the 2,026 bills and resolutions filed as of yesterday, "78 bills would create new criminal offenses, 55 bills would increase current punishments, [and] 11 bills would decrease a current punishment." While the overcriminalization trend toward higher penalties and more crimes remains troubling, in past sessions the number of bills filed reducing punishments has seldom reached double digits.

MORE: From Paul Kennedy.

Too much time on their hands: Creating crime to fight it

Though they've stopped doing it so much after folks like me began regularly reading their message boards, one recurring theme at the Texas District and County Attorneys' Association chat section is prosecutors asking for help to bolster shoddy or questionable cases. Last month, in a post titled, "Not entrapment .... but ... still????," a prosecutor with only the handle "SM" posed this situation to his compatriots:

So my officers bought a 32" tv from Wal-Mart (so owned by the PD), and placed it in the back of a truck in the parking lot of Wal-Mart to set up a sting operation. No one took the bait. They moved the truck around, still no one took the bait. So they decided to put the TV (still in box) in a shopping cart and put the cart on the far end of the parking lot. I now have 5 defendants who tried to take the TV. Probable defenses will be abandonment or the element "without the owner's effective consent" because clearly the owner (the PD) placed the tv there to be taken....beyond that, I'm having a bit of a problem justifying prosecution. It just smells bad to me for some reason. Any opinions on this issue are welcome!

"SA Prosecutor" responded "That's why you are going to offer probation!" But TDCAA's appellate counsel John Stride saw nothing wrong with the tactic. "I'm not smelling it at all," he declared:

Why does it matter where the officers put the TV on the premises? It was still in its original wrapping on the Wal-Mart parking lot. To any reasonable person it belonged to a purchaser--probably in the process of loading it--or even Wal-Mart. If it had been unwrapped, abandonment may be more likely. But, in any event, why wouldn't someone check with Wal-Mart employees first? Think of the bait bicycles used by some departments.

TDCAA's lobbyist Shannon Edmonds at the end of the short string suggested, "Wouldn't it be nice if officers would check with the prosecutor BEFORE doing things like this?!?"

I'm not a lawyer and have no opinion on whether the facts of the situation fit the elements of any of the thousands of crimes on the books. But I'm certainly of the opinion that there ought to be enough crime out there to investigate that law enforcement doesn't need to manufacture it. And if there's so little crime that police have time to engage in this sort of activity, perhaps it's time for a force reduction. The officers at this unnamed agency clearly have too much time on their hands.

Senate budget writers want more prosecutor training on Brady, mental health

MSM coverage was relatively light of last Monday's senate hearing on budgets for the judiciary and related agencies (this was the hearing where I submitted written testimony on behalf of the Innocence Project of Texas to boost funding for law-school based innocence clinics), but the Tex Parte Blog reported that "The Senate Finance Committee wants to see proposals about what the Texas Court of Criminal Appeals would do with an extra $1 million to train lawyers and judges about dealing with mentally ill criminal defendants."

Sen. John Whitmire, D-Houston, said [Chairman Tommy] Williams had presented an opportunity for the court to propose “proactive programs” on mental health. He also asked how the court’s current mental-health training keeps people with mental illnesses out of jail.

Hervey said she’d like to study available mental-health resources and educate lawyers about the resources so they could propose placing a criminal defendant in a mental-health facility instead of the criminal-justice system.

The Legislative Budget Board has recommended the CCA receive funding of $27.07 million for the 2014-15 biennium for court operations and judicial training. The court has requested an additional $5.39 million for multiple training programs and also wants another $1.29 million for a new staff attorney, pay raises for current lawyers, and more.

“We rely on them totally,” Presiding Judge Sharon Keller said about the CCA’s staff attorneys.

Shannon Edmonds at the Texas District and County Attorneys Association provided this rueful addendum about legislators questioning of Court of Criminal Appeals Judge Barbara Hervey over training for prosecutors on handing over exculpatory evidence, which the US Supreme Court deemed a constitutional obligation under Brady v. Maryland:

Committee members discussed prosecutors’ training with Judge Barbara Hervey, who manages the state’s grant program for the Court of Criminal Appeals that provides prosecutors with the bulk of their training.  The committee members were most interested in additional training for prosecutors in two areas—mental health and Brady compliance.  It was clear from the tenor of the questions that some legislators want to see increased training for prosecutors in both of these areas.  As an aside, you should know that Judge Hervey fielded some very pointed questions about prosecutor conduct. Judge Hervey declined the invitation to drop prosecutors in the grease and opined that notwithstanding the occasional “bad apple,” prosecutor misconduct is not a problem in Texas. However, the tenor of the questioning certainly foreshadows what may be in store for prosecutors later this session.

Another Tex Parte entry helpfully reported on requests at the same hearing to improve court technology, and here's one on Chief Justice Wallace Jefferson's budget presentation on the Supreme Court side.

DPS analyst who faked results worked on 4,944 drug cases

A bit more detail came out at yesterday's Forensic Science Commission meeting about an incident (see here) at a Department of Public Safety lab in Houston where an analyst was caught using a sample from an unrelated case to validate a positive finding for Alprazolam (the generic name for Xanax). DPS self-reported the event to the FSC after the falsified test was accidentally discovered by a co-worker, and the FSC yesterday accepted the recommendation of their Complaint Screening Committee to accept the case. According to the description presented to the commission, the discovery happened by accident and would not have been revealed through regular management and audit systems.

In the wake of this revelation, DPS analyzed all the labworker's cases over the previous 90 days and found additional discrepancies in two other instances. In most of the cases, though, DPS has already sent the evidence back to the originating agency. The same analyst had performed work on 4,944 cases since 2006, but it's likely that in many of them, the evidence has been destroyed. in cases which have already been adjudicated. Further, DPS has no way to track the adjudication status of cases it's worked on and lab director Pat Johnson told the commission the agency has no idea in what percentage of affected cases the evidence still exists to re-test. What a fiasco!

DPS has notified prosecutors and the defense bar, and the District and County Attorneys Association provided effective guidance for vetting these cases. But it's not at all clear that every defense attorney, much less every defendant, whose cases were handled by that analyst, have been notified, nor how individual DA offices are handling the cases.

FSC member and Tarrant County prosecutor Richard Alpert said the disclosure could lead to many cases - even those that resulted in plea bargains - being overturned either through a writ of habeas corpus or even an "untimely motion" for new trial. However, the defense attorney rep on the FSC, Bobby Lerma, worried that defense counsel who'd worked these cases for indigent clients may not aggressively respond to this news, or even necessarily receive it.

Johnson told commissioners that requests for re-testing are still trickling in and there's no telling at this point how many cases might ultimately be challenged as a result of this muddled misadventure.

In for a penny, in for a state jail felony

The Fort Worth Star-Telegram has a pair of stories from the Texas District and County Attorney Association's legislative briefings, which have been going on the past few weeks. This story critiques a change in the statute on scrap metal theft that makes it a state jail felony literally to steal one penny, or any other item with the tiniest iota of copper (or other designated metals) in it."In their zeal to get after some of these scrap-metal scavengers, they really swung the pendulum pretty far to the other side,"said TDCAA lobbyist Shannon Edmonds. A staffer for the author of the bill, state Sen. Royce West, said they would "rely on the reasonable discretion of the prosecutors," but the scrap-metal statute was already ineffective and over-the-top. Now it's just absurd.

Another article focuses on new legislation the prosecutors' association thinks is unworkable. The story opens:

Texas prosecutors may not enforce new laws passed by the Legislature this year dealing with human trafficking, sexting and domestic abuse because of problems with how they were written.

The Texas District & County Attorney Association, an Austin group that trains prosecutors, has started warning members that some new laws have loopholes or mistakes that may make them unworkable from a prosecutorial standpoint. Shannon Edmonds, the group's legislative guru, is widely viewed as an influential analyst in the state's legal community.

In particular, bills expanding protective orders to include sex trafficking victims and pets are likely unenforceable, and a statute creating a new crime for "sexting" will lead to absurd results. On the sexting statute:

Edmonds is advising them to largely ignore the law because of problems including vague descriptions and conflicting rules.

"It's a bill written by people who don't understand the criminal-justice system," Edmonds said. "Prosecutors and police officers are going to have to use their discretion and ignore the absurdity that was written into the law."

Among the problems with the sexting law, Edmonds said, is that it creates a Catch-22 for adults who come across any explicit photos that were involved in an incident. The law tries to block such adults from being charged with possessing child pornography if they are holding on to the material to aid in an investigation, but Edmonds said it wasn't written properly.

"You could either destroy the evidence and be prosecuted for destruction of evidence or you could not destroy it and arguably be prosecuted for child pornography," Edmonds said, though he added that it's unlikely that a prosecutor would apply pornography charges in such a situation.

The law's lead author, Sen. Kirk Watson, D-Austin, said in a statement that he and other lawmakers worked with local prosecutors to "ensure this solution was sensible, appropriate and, most of all, workable."

That the group didn't bring up their concern earlier is "surprising and disappointing," Watson said.

The sexting bill was always a solution looking for a problem. Supposedly it was passed so teens involved in sexting wouldn't  be charged with child pornography. But when I attended the TDCAA briefing in Austin last month, Edmonds asked the roomful of prosecutors how many had filed child porn charges in sexting cases, and none raised their hands. Edmonds said TDCAA has never heard of such a case.

As reported previously on Grits, Edmonds counted 53 new crimes created by the Legislature this session, not including penalty increases on existing laws. Few if any of those new criminal laws were actually needed, in this author's view, except for a handful aimed at fixing legislative screwups from prior sessions like the ones Shannon described on protective orders, sexting, etc.. At this point the legislature expands the scope of criminal law every session more out of habit than necessity.

Prosecutors' roundup of bills that 'affect their business'

Shannon Edmonds at the Texas District and County Attorneys Association boasts that most legislation aimed at reducing Texas' prison population was defeated in the 82nd Legislature "thanks to the opposition of prosecutors." Here's the summary compiled by TDCAA of legislation that "could affect [prosecutors'] business."

The organization will soon be holding seminars around the state, beginning in July, to update prosecutors on new statutes from the 82nd session. Thanks to Grits contributors I've signed up for one in Austin on July 22 (registration for non-TDCAA members is $100). For those who'd like to attend one in your own neck of the woods, you can register online here.