Tim Cole statue unveiled in Lubbock, and other stories

Here are a few items from the last week that may interest Grits readers but which lost out in the competition for time with my paid work:

Tim Cole memorialized by VIPs at statue unveiling
Lubbock this week unveiled a 13-foot tall statue of Timothy Cole, who was falsely convicted of rape in that county and died in prison before his innocence could be proven. Lots of VIPs there, including Gov. Perry and both the Democratic and Republican nominees to succeed him. See CNN's coverage, AP, and the Lubbock Avalanche-Journal. Perhaps the best way politicians could honor Timothy Cole next session would be to pass the final, unfinished recommendation from the Timothy Cole Advisory Panel: Requiring police to record custodial interrogations for serious offenses.

Texas Association of Business goes 'Smart on Crime'
A left-right "Smart on Crime" coalition formally announced this week including the Texas Public Policy Foundation, my part-time employers at the Texas Criminal Justice Coalition, the Texas Association of Business, and Goodwill Industries. The big news here really is the Texas Association of Business stepping up to the plate more seriously on the subject. Their interests are mainly in continuing adequate supply in the labor market, but at this moment in history that aligns their interests with less-government reformers on the left and right who think limited state resources should be spent on more productive endeavors than incarceration.

Abuses reveal Houston cops' mercenary view of ticket writing
Prosecutors in Houston will dismiss hundreds of Class C charges, reported the Houston Chronicle (Sept. 18), because four police officers lied on the tickets, claiming their colleagues were present at the stop so they could cheat on their overtime records. The four officers were recently "relieved of duty" and are "being investigated for criminal conduct." One frequently hear politicians claim the purpose of ticket writing is to enforce the law, not generate revenue.  But for these cops it was about generating revenue: overtime, for themselves.

Harris DA candidates: End key-man system of grand jury selection
Both R and D District Attorney candidates in Harris County believe the key man system of selecting grand juries should be eliminated, reported HouChron columnist Lisa Falkenberg (Sept. 18). So do I. Problem is, judges make those appointments and nobody can tell them what to do but the Legislature. So if you want to change how grand juries are picked, the candidates might be running for the wrong office. I'm old fashioned that way, but I'd prefer the candidates debate stuff that's actually part of the DA's job.

The Driver Responsibility surcharge is still a catastrophe
The Texas Observer's Forrest Wilder has a column decrying Texas' Driver Responsibility surcharge; nothing regular Grits readers haven't heard before but he outlines the problem well and expresses the appropriate level of outrage at one of the most dysfunctional programs in all of state government.

Who is operating fake cell phone towers in Texas, US?
Popular Science wondered, "Who is running the phony cell-phone towers around the US?" (Sept. 15). Like me, they think it's probably cops and spooks. See prior Grits coverage.

Making slime
Off topic, but this was a lot of fun to do with the granddaughter this morning. A big hit. Eight year olds love to make slime.

The Tim Cole Advisory Panel Report: Too Much Ado, Not Enough Done

Hey everybody, Jeff Blackburn here. Scott asked me to do some guest blogging during his well-deserved vacation. This my first post. Be as hard on me as you want.

On Wednesday of last week, my good friend Ana Yáñez-Correa reported on the meeting of the Task Force on Indigent Defense that had just happened. She called the meeting and what came out of it a “Great Day for Justice in Texas”.

I was at that meeting. I have to tell you that it didn’t make me feel warm, fuzzy or full of pride for Texas. I handled the Tim Cole case and represent his family, and if what happened at the Court of Criminal Appeals last Wednesday was a “great day” then we are all getting way too accustomed to way too little.

Ana is a strong thinker, a rock-solid activist and a very close colleague of mine. I think she and her outfit have done a great deal for the criminal justice reform movement. That’s why I was disappointed that she chose to give so much credit to the Task Force on Indigent Defense (TFID). If you read her post or listened to the self-congratulatory tone struck at the meeting, you would think the TFID is at the cutting edge of reform in this state. That is a long way from the truth.

I’m not saying that what happened on Wednesday set back the cause of justice or was the equivalent of nothing at all. I am saying that what the TFID did was take some small, long-overdue steps and suggest that they were giant leaps.

A good example of this is the report of the Tim Cole Advisory Panel on Wrongful Convictions (TCAP). That report can be found here. It is well written and carefully researched, thanks to the efforts of the TFID’s Dr. Jennifer Willyard.

The problem is not what the report says or how it reads. It is what it does not say.

As readers may remember the TCAP was created by the last legislature. The panel’s purpose was to prepare a study of the causes of wrongful convictions and make legislative recommendations.

The panel was mainly composed of politicians, prosecutors, ex-prosecutors, and police officers. There were no members of any innocence project on it (although, to be fair, folks connected with such projects were allowed to attend meetings.) Most of the panelists had undeniably good intentions. They worked hard at the report and it shows.

Intention and effort aside, however, what the panel finally came up with was a largely watered-down version of what has already been in play in prior legislative sessions. The panel could have gone much further. Instead, it chose to take a predictable path of limited resistance and avoid controversy.

On eyewitness identification, the panel recommended that the next legislature pass only a “training bill”. This kind of bill, which was before the legislature last session after a great deal of compromise, emphasizes training police departments in better eyewitness identification procedures. Given the sorry state of current “procedures” being used by cops throughout the state- many of which involve outrageously suggestive tricks like one-person “showups” (see the terrific 2008 report of the Justice Project here for an idea of how bad things really are ) this would help, but only a little. The limitations of the approach taken by TCAP are carefully examined by U. of H. Professor Sandra Guerra Thompson, a panelist who went to the trouble of writing a concurring report. Her position, which is well-researched and thoroughly explained, points out in detail the diluted nature of what the panel is recommending. Read it if you want to see how much more can and should be done in this area. Wonder why no one seemed to make much mention of Professor Thompson’s report at the meeting?

The panel also dealt with recording custodial interrogations, discovery reform, DNA testing, and whether we should have an innocence commission. Some of the recommendations are good (recording custodial interrogations and junk-science based writ reform, for example); some not so much (reciprocal discovery in criminal cases? Why not full discovery of the State’s file and leave the defense alone?). The report’s recommendation to shelve the idea of an innocence commission in favor of state-funded innocence projects sounds okay until you read the fine print where it advocates adding a staff member to the TFID at the expense of the already ridiculously underfunded projects, none of which currently receive enough money to get the job done.

Are the ideas and proposals in the TCAP report terrible? No. They are just too limited. This panel was set up as an independent body that could have done a lot more. It could have advocated a comprehensive reform of the writ system- a system that has been designed to ensure that most claims of actual innocence never see the light of day. It could have tackled the issue of lousy trial representation that has caused the vast majority of wrongful convictions so far and called for the creation of a statewide public defender system. It could have recommended measures to eliminate the use of junk pseudo-science in trial courts. These are the kind of big reforms that we need to make to really stop wrongful convictions and get more innocent people out of prison.

Instead of advocating such changes, the panel contented itself with making limited recommendations that have all been made before. By breaking no new ground, TCAP chose to focus on what it saw as “do-able”. That’s fine, I guess, and expected: after all, this is Texas and most of the panelists were criminal justice officials.

Less expected, however, is the attitude of many reform advocates toward this report. To imply that the adoption of the TCAP report is a big move forward, or to suggest that it somehow signals a major change in policy, is giving too much credit to officialdom.

The Tim Cole case itself was brought to public attention against the opposition of all kinds of officials, from Lubbock County on up. If we had relied on the conventional system to take care of the situation nothing would have happened and no one would have heard of Tim Cole, much less named panels and statutes after him.

We have a hard legislative session ahead. Money, money, and money are going to be the topics of the day. If we expect to get anything done at all with criminal justice reform we are going to need to be a little harder ourselves. We need to approach this session with big proposals. They will get whittled down, just as they were in the TCAP report. In the meantime, we need to start calling things like they are instead of praising the system for what is ultimately still too little and too late.

Great Day for Justice in Texas

Hello everyone! It’s Ana Yáñez-Correa again.

Today is a great day for justice in Harris County and across Texas. Leah Pinney and I attended the Task Force on Indigent Defense Board Meeting today, where we were reminded of the value of grace and perseverance in seeking justice.

• The Task Force unanimously approved the grant proposal for the new Harris County Public Defender Office. I don’t have to say that this is an historic occasion for Harris County, and it is due to the amazing work of Senator Ellis, his staff, and long-time advocates (and our dear friends) from Harris County: Mary L. Ramos, Howard Jefferson, Rev. William A. Lawson, Rev. Robert Jefferson, and others. We also want to acknowledge the hard work of Harris County officials in collaborating with Task Force staff to create a strong proposal for the new public defender office. This office is a monumental undertaking that will include misdemeanor mental health and appellate divisions, both scheduled to begin taking cases on February 1, 2011, as well as juvenile and felony trial cases which will begin a year later. Here you will find an article from the Houston Chronicle about Harris County's grant.

• In addition to the Harris County Public Defender Office, the Task Force awarded discretionary funds to help establish Montgomery County’s Managed Assigned Council Program (MACP). It is the first of its kind in Texas and will provide direct client services to indigent defendants suffering from mental health issues. Modeled in part after the San Mateo County Bar Association Private Defender Program in California, the Montgomery County program is unique in Texas because it will be led by attorneys in the local defense bar. The MACP will provide specially trained defense attorneys, case management, and investigative/expert services to assist defendants on the county’s mental health docket. Once the program is running at full capacity, county officials estimate that a panel of 12 private attorneys will serve a client base of approximately 600 indigent defendants. This well-considered program includes objectives to measure attorney performance, which provides increased accountability, and reduce recidivism. It truly presents great potential for replication in other counties across Texas. I had a chance to speak with Judge Cara Wood before today’s meeting and she seems genuinely excited about getting this program up and running. Considering all the potential for this program (including greater independence from the judiciary), Judge Wood and the rest of Montgomery County have plenty to be excited about.

To learn more about the Task Force's Discretionary Grant Program, click here for a newly developed one-pager.

• As important as these new opportunities for public defense in Texas are, today was particularly meaningful because the Task Force voted to forward the final recommendations, nearly a year of work in the making, by the Timothy Cole Advisory Panel to a wide range of stakeholders. In attendance were the family members of Timothy Cole – an innocent man mistakenly identified, wrongfully prosecuted, and convicted, who later died while in prison. His family members continued to demonstrate their amazing grace with policy-makers, stakeholders, and justice system practitioners. They knew their son and brother was innocent and stood by him through his dying day as the justice system failed repeatedly, and their response to this injustice was to move forward and build relationships with those who are charged with ensuring justice in Texas. Even today, they honor him in their continued dedication to ensuring that known best practices become a reality in the Texas justice system. The family thanked the Timothy Cole Advisory Panel members and the Task Force for their work, culminating in specific recommendations for best practices in eyewitness identification procedures, the recording of custodial interrogations, and evidence discovery procedures, as well as expanded opportunities for DNA testing for post-conviction proceedings.

As those who struggle to shape public and administrative policy often focus on consensus building and necessary compromise to achieve even modest reforms, today we are reminded of the tremendous suffering and loss that occurs everyday as we move slowly, but (we hope) surely, toward justice. Although this is just one day and one step forward in the process – and there are many more ahead – each of us should be motivated to continue to push for real and complete implementation of these reforms. We must continue to pursue even more justice than we thought possible because someone in Texas is waiting on it right now.

But in light of today’s great accomplishments, we must recognize the Task Force board members, the Task Force Director, Jim Bethke, and his dedicated team for their amazing work in collaborating with a diverse range of stakeholders and community advocates to move each of these projects forward successfully!