Travis County jail expansion makes no sense, so of course they might do it anyway

For many years, combating unnecessary jail expansion around the state was a central focus of this blog. But over time, the jail building boom relented and this blog roamed in other directions. So I'm surprised to find myself drug back into the debate on my home turf, with politicians I've known for years leading the charge to build new jail space Travis County doesn't need. I'd hoped we were past this.

The issue is construction of a new women's jail, a proposal originating in the county's 2016 strategic plan. The county will vote tomorrow on whether to spend $4.3 million to plan construction for a proposed $80 million women's jail expansion, though high construction prices due to recent commodity price spikes make it likely the costs would be higher.

But a lot has happened since 2016, most notably that the jail population has plummeted, starting before COVID then accelerating over the last year. County Judge Andy Brown and Commissioner Ann Howard have proposed a resolution to reevaluate the 2016 plan in light of current needs.

At this point, the jail is less than half full. Among women, most of them remain in the jail less than three days. Of the current population, only about 40 women have been incarcerated longer than that.

Spending $80 million on facilities that will mostly benefit so few women makes no sense. Yes, it's true bond money can only be spent on facilities. But bond PAYMENTS come from the same tax revenues that fund every other part of the budget. The idea that this investment doesn't compete with resources for services simply doesn't hold water and apologists for the new jail should stop saying it. We all know where the money to make debt payments comes from!

Even more disingenuous are those who raise the "murder spike" to argue for expanded jail space. Most murder suspects aren't women, and most people in jail aren't murderers. Anyway, the new facilities wouldn't be ready for four years! Short-term crime trends aren't an argument for long-term capital investments, especially when there's so much vacant jail space to begin with.

All sorts of factors have contributed to Travis County's jail population reduction and make it likely it will be sustained. Judges who began using more expansive pretrial release protocols to save lives during COVID say they largely intend to continue them once COVID abates. The county has largely ceased prosecuting marijuana cases, and many other nonviolent misdemeanors and low-level felonies are being handled through front-end, pretrial diversion. A new public defender's office is just getting set up but will soon provide more defendants better representation, making pretrial release more likely.

At a minimum, the jail population reduction in the five years since the 2016 plan provided breathing room for the county to reevaluate. Back then, the jail already had more people in it than it does today and lumber prices weren't through the roof. There's simply no need to build more jail space now and from a cost perspective, it's a bad moment to do so. Let the overheated lumber markets die down and give the system time to see if the reductions will be sustained. There's no immediate pressure to do otherwise.

In many ways, this is a bizarre debate. Usually, when Grits argues against new jail spending, jails are full and I'm suggesting diversion programs and cohorts of arrestees who can be safely released as an alternative to jail expansion. But in this case, Travis County faces none of those pressures.

Commissioners Shea and Travillion want to build a jail because the Sheriff wants it, not because the county needs one. But there's a reason the Texas constitution separates jail management functions from budget writing: It's the commissioners' job to vet such proposals, and any rational analysis of county needs argues against jail building right now.

We live in such an odd political moment. Jails are so expensive and cumbersome for counties, usually commissioners only want to build them as a last resort. To have self-avowed liberals wanting to build one when they don't need the space feels like a bit of a through-the-looking-glass moment. But for long-time observers, perhaps it isn't as surprising as it seems.

Liberals pushing to build a jail we don't need feels to me like a throwback to the Ann Richards era. Then, liberals championed prison building as a last ditch effort to stop the state from flipping to Republican control. Trying to "out incarcerate" Republicans didn't work then and it won't help today. Instead, it will dissuade voters Democrats need from coming to the polls at all. 

Jail opponents have presented the County with a robust set of alternatives that address Travis County's real needs -- build mental health crisis centers and intermediate treatment options, housing, substance abuse services and more. People like those ideas. They poll well. They actually work. Why not stop trying to out-Republican the Republicans and stand for something different?

UPDATE: After a fairly dramatic hearing in which three commissioners for a time appeared to lean toward moving forward, more than 100 speakers against from all walks of community life convinced them to delay the jail project for a year in a unanimous vote. This got uglier and weirder than it needed to be. Unless it was contractor-driven, I still don't understand the urgency behind jail proponents' push while the jail is half full. Glad they delayed it.

Please prove me wrong: Jose Garza wants to make Grits eat my words

Travis County District Attorney Jose Garza is trying to change Grits' mind about "progressive prosecutors." He hasn't succeeded yet, but in the early days of his administration, he's giving it the ol' college try.

In the last week, Garza announced indictments of two officers who'd allegedly engaged in excessive force but weren't punished by police management, and said a grand jury would soon consider charges in the deaths of the police officers who killed Mike Ramos and Javier Ambler. Then yesterday, his office agreed Rosa Jimenez - the babysitter falsely convicted 18 years ago of murdering a child in her care - could be released on bail pending her appeal, and Judge Karen Sage agreed. 

These are major shifts in policy. In recent years, we've seen Texas prosecutors seek indictments for cops following publicity and public pressure - as in the Mike Ramos and Javier Ambler cases - but seldom in less high-profile situations, and never when the police department failed to discipline them. The indictments of officers cleared by APD Internal Affairs amounts to another "no confidence" vote for police Chief Brian Manley, this time from the sitting District Attorney. And it validates public concerns that the department's disciplinary process fails to hold certain officers accountable. 

An equally big shift involves the level of transparency Garza pledged to provide about such cases. He released the first of what he promised would be bimonthly reports on cases involving alleged law-enforcement misconduct. Under Margaret Moore, the DA's office amounted to a black hole from which no light emerged unless she imagined it would cast her in a flattering manner.

Indeed, Garza effectively countered complaints from police about the indictments by doubling down on his commitment to transparency:  "To the extent that Chief Manley and others have concern about the grand jury determination in this case," Garza told the Statesman, "they should immediately release all of the relevant video footage so that our community can see the conduct for themselves." By contrast, Moore's practice was to tell APD not to release video in such cases.

Meanwhile, Grits couldn't be happier that Rosa Jimenez was released pending appeal of her habeas writ. Six judges have now said Jimenez is innocent or at least deserves a new trial, but under state law, Attorney General Ken Paxton controls the appellate process in federal court and he has appealed all their rulings. Because of the innocence findings, under Texas law, Judge Sage can release Jimenez on bail pending the final outcome if the DA agrees. Former DA Margaret Moore chose instead to defer to AG Paxton, so this is evidence elections definitely matter.

Jimenez should have been released years ago. She was convicted based on junk science after the trial judge refused to pay for defense experts to counter misinformation presented by Travis County prosecutors. So this was an incredibly happy day. If it weren't for COVID, your correspondent would have gone to the courthouse for the event. When the news came, I literally shouted for joy. (Bilbo the Criminal-Justice-Reform Dog, I should add, was rather confused and taken aback at this outburst.) It's possible she may be released and reunited with her (now adult) children as soon as Friday.

So let me take this opportunity to say "thank you" to Jose Garza, and for that matter to Judge Sage. I'm proud of and grateful to both of them for this.

Even so, Grits has never been comfortable with the phrase "progressive prosecutor." I think of the prosecutorial function as inherently regressive: a one-trick pony whose "trick" is to punish people for violating state dicta. As I wrote five years ago, usually when a new District Attorney is elected:

management changes, but the day-to-day operations remain much the same as they functioned when our grandparents ran much-smaller versions several decades ago. Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it.

Grits added, however, that this wasn't an inevitability: "That's not to say it wouldn't be possible for a DA to fundamentally redefine the job. They have enough discretion to where all sorts of interesting possibilities might present themselves if smart people put their minds to it." But the first round of Texas DAs elected after campaigning as "progressive" - including in Houston, Dallas, San Antonio, and Corpus Christi - have fundamentally continued to perform the office's functions in the same way they've always operated.

That's an observation more than a criticism. Change is hard. And slow. Plus, there exist few models for alternative approaches that might truly merit a "progressive" label. The cases described above - indicted cops and an innocent person released - still boil down to decisions whether or not to use the stick. We've not yet seen a fundamental reimagining of the prosecutorial function in Texas, and arguably anywhere (although admittedly, I don't closely track what prosecutors are doing in other states).

Still, Jose Garza is showing how much discretion matters. So far, these fall into the category of cases that "play out at the margins." But they're welcome moves, and evidence that he really does intend to operate the office differently. To me, the real test will come when we see how more workaday, less-high-profile cases get handled, particularly on drug and sexual assault charges. At this point, I'm hopeful bordering on optimistic that Garza will prove me wrong about "progressive prosecutors."

Like Fox Mulder in the old X Files series, I want to believe.

MORE: See Garza's 3-page memo on new policy changes he's implementing at the Travis County DA's office.

Correction: An earlier version of this post said the officers who shot Javier Ambler and Mike Ramos had already been indicted. In fact, Garza has said he will take their cases before a grand jury in the current term. Grits regrets the error.

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'"

Federal judge annoyed with Travis DA for recalcitrance on innocence case

Rosa Jimenez, the Austin babysitter wrongly convicted of murdering a child in her care 17 years ago, is likely innocent and should be released, four different judges (two federal, two state) have now declared, despite a Texas Court of Criminal Appeals ruling to the contrary. But Travis County DA Margaret Moore insists she intends to re-try Jimenez, and with Attorney General Ken Paxton has petitioned the courts to stay her release. At the Austin Statesman, Chuck Lindell recorded part of the exchange:

the judge turned to Travis County officials in his downtown Austin courtroom.
“Is it my understanding that (District Attorney) Margaret Moore is hot to retry this case? Really?” [magistrate Judge Andrew] Austin asked. 

“We are prepared to retry the case and have informed the victim’s family of the potential of retrying the case,” said Beverly Mathews, director of the special victims unit in the Travis County district attorney’s office. 

“Has she read the four different judge’s orders who said they think it’s likely that an innocent woman has been sitting in jail for 17 years?” Austin asked, adding that the now-retired judge who presided over Jimenez’s trial, Jon Wisser, also concluded that there was a substantial likelihood that Jimenez was not guilty. 

“Margaret Moore really wants a retrial?” he asked again, shaking his head. 

“It is my understanding that she is willing to retry this case,” Mathews replied.
Such a trial would not expected to begin for at least a year, she added.

Grits was in the courtroom when this exchange occurred. Judge Austin was visibly surprised, bordering on amazed, that the Travis County DA wanted one last pound of flesh.

Soon after Lindell's story was published (KXAN was the only other media outlet there to cover it), a local criminal-justice reform advocate I know approached Moore about the case. She told him she planned to talk to the victim's family and there was more to the case than he knew.

My question: Is there more than the 4 judges knew, and if so, why didn't her office present that information in court? It's a 17-year-old case, what could they possibly be holding back?

Adding to Judge Austin's annoyance, an attorney for the AG's office (who represents the state in federal court) wanted to bicker with him about a technicality related to ICE holds. But Austin is a magistrate judge who hears immigration cases all the time. He is an in-the-weeds expert on the topic while the AG's lawyer admitted he had not investigated nor studied any of the processes on which he was opining. Finally, the judge gruffly told him to sit down and stop talking.

Judge Austin's order particularly singled out for disapprobation the Texas Court of Criminal Appeals, which had denied Jimenez's writ:

In doing so, it failed to recognize the extent of defense counsel’s errors and the significant reasons the jury’s verdict is not worthy of confidence. The Court of Criminal Appeals’ decision is both contrary to federal law and involved the unreasonable, if not outright incorrect, application of that law. Its decision was also based on several factual determinations that were plainly unreasonable in light of the record before the state court.

This, my friends, is what's known as a bench slapping.

At the state-habeas level, the district court had recommended approving the habeas petition, in part because of the evidence but also because of ineffective assistance of counsel. The latter was alleged because the defense did not put on expert witnesses to counter the team of expert testifiers put on by the state. But her attorney responded that that was because the judge wouldn't approve funds. In an affidavit submitted to the court, he wrote:

During my pre-trial preparations, I met with Judge [Jon Wisser] to ask for additional funds to retain experts such as Dr. McGeorge and a biomechanical expert. I explained to the judge why we needed these experts, and that I did not think that my current team was adequate to counter the State’s case. Judge [Wisser] told me that he had authorized more experts than usual in a noncapital case, and that he would not pay for any more expert assistance regardless of my need. Based on the judge’s ruling, I was forced to work within the constraints imposed by the Court. Ms. Jimenez was indigent, and I could not afford to hire these experts out of pocket.

So in this case, the defendant's inability to challenge what turned out to be flawed scientific testimony from the state was really an institutional failure of the indigent defense system as much as a failure of forensics per se.

Grits mentions this because, although DA Margaret Moore will draw most of the attention on this case because she's the one choosing to keep Jimenez incarcerated, the Texas Court of Criminal Appeals, the trial court in Austin, and really the entire system is culpable for what happened here.

First impressions from Travis County DA debate

Until seeing the candidates debate at a Circle-C Democrats' forum the other night, Grits had wondered whether a reform candidate could really beat incumbent Travis County DA Margaret Moore in the upcoming Democratic primary. But now I can see the path.

The missus attended a second forum for District and County Attorney candidates, hosted by South Austin Democrats, the following night and came away with similar impressions.

I didn't take notes and wasn't there to formally cover the event, but here are my current thoughts on this local race, in no particular order.

1. Mad Margaret: Margaret Moore was all smiles working the room before the forum, but on the panel with the other candidates, she appeared sour and unhappy. The white-haired party volunteer sitting next to me leaned over at one point and giggled, "Margaret is mad."

2. Reform vs. Experience: Of the three candidates, Jose Garza comes most connected to the national #cjreform movement represented by DAs like Larry Krasner in Philly or Chesa Boudin in San Francisco (who beat an establishment-backed Dem over the weekend). But Garza's not as deeply experienced in the local justice system as either of those two. I like Jose, even though both he and Martinson would face steep learning curves on the job. OTOH, that may not be a bad thing, to the extent such "experience" leads candidates to naysay change, as Moore has largely done. And both appear prepared to surround themselves with qualified lieutenants if they win the job.

3. Martinson's Wheelhouse: To the extent the race centers around how the DA's office handles sexual assault cases - and if the firefighters' association has anything to say about it, it certainly will - it benefits Erin Martinson, who for 12 years ran the protective-order division at the Travis County Attorney's Office, more than it does Garza. Martinson did her best when she challenged Moore directly on these questions. She did a great job of threading the needle between improving responsiveness to victims and reducing mass incarceration, using examples from restorative-justice philosophy and practice and her own experience working directly with domestic-violence victims. This background gave her a lot of gravitas speaking to these questions.

4. Some backstory about Moore and reformers: Last year, Margaret Moore and County Attorney David Escamilla approached local #cjreform advocates seeking support to merge the District and County Attorneys offices. Advocates responded with a menu of reforms we'd like to see them enact. Both refused to seriously discuss them, insisting that only insiders understood what was really needed to change the system. (This theme has continued: "Insiders know the system," Moore told the Statesman the other day, "The general public doesn’t understand our system.") Recently Moore characterized that menu of reform ideas as "demands," but in reality they were merely a counterproposal: If she wanted support to merge the DA and CA offices under her solitary command, we sought more reform-minded changes in return. She declined, and her merger failed. It's not like anyone then began protesting on her doorstep. But everyone certainly noticed the choices she made and the priorities they evinced. In this, she is a great deal like Kim Ogg, elected as a progressive without having to demonstrate any actually progressive policies, then resentful when #cjreform advocates demand change. Both Ogg's and Moore's races to me evince a similar dynamic, mainly because of how scornfully establishment Democratic incumbents are reacting to the reform wing of their party.

5. Who disavows the death penalty? Moore was the only candidate of the three who refused to disavow seeking the death penalty under any circumstance, saying she would have sought it for the Austin bomber if he had lived. In a statewide general election, that would suffice; in an Austin Democratic primary, maybe not. The crowd murmured with disapproval at her answer while responding with approbation to her opponents' condemnation of capital punishment.

6. Another big split: Garza and Martinson both said they'd use their discretion to stop prosecuting low-level felony drug-possession cases altogether, which would be a more aggressive stance than other "progressive DAs" in Texas so far. Moore said she agreed in principle but that it was better to divert the cases to misdemeanors, for fear of what the Legislature might do. Garza later drew a big applause line by responding that the DA must do what's right and not shy away from their principles out of fear of what the governor might do.

7. Reform-minded Dems: Criminal-justice-reform philosophies are spreading among the Democratic grassroots, and audience members were knowledgeable and engaged in a way that was refreshing. In both this race and the County Attorney's forum, reform-minded messaging appeared to score the most points with the audience of likely Democratic primary voters.

8. Time for a change: Grits likes Margaret Moore well enough personally, and she was a big improvement over the booze-soaked bully she replaced as Travis County DA before her. But simply not being a mean-spirited drunk is insufficient to the current moment, however much a welcome improvement that was in 2016. Moore's professional career spans nearly precisely the generation that spawned mass incarceration; at root, she retains the values and attitudes that created it and doesn't appear likely to embrace reforms that could dismantle it.

When this race started, it seemed to come down to a battle between Garza and Martinson to make the runoff with Margaret Moore. Between Moore's angry showing at candidate's forums, the firefighter union's surprisingly harsh attacks, and the receptiveness of Dem primary voters in Travis County to #cjreform messages, I'm now wondering if it's possible the wounded incumbent might not even make a runoff?

The state of 'progressive prosecutors' in Texas

The article in The Atlantic titled "Texas prosecutor fights for reform" has a certain "Man Bites Dog" quality, which I suppose makes local news from Texas interesting enough for East and West coast media and muckety mucks to take notice. Not that John Creuzot's work in Dallas doesn't deserve attention. In Grits' view, he is the most confident, competent, and sure-footed of Texas' new crop of Democratic DAs. But at this point, the term "progressive district attorney" requires so many caveats that it should probably be discarded, at least in red states, until a few key benchmarks have been established and met.

When Kim Ogg of Houston, Mark Gonzalez in Corpus Christi, and Margaret Moore in Austin were elected DAs of their respective counties in 2016, there was a clutch of mostly national advocates and journalists, coupled with a few local electoral partisans, who pronounced them part of a new wave of "progressive prosecutors." Grits argued at the time that there was no such thing (and still largely thinks that's true).

Larry Krasner's election in Philadelphia changed things. His office produced a memo detailing new policies aimed at reducing incarceration rates that was much more daring and aggressively decarceral than any previous US prosecutor had ever suggested. (For a contemporary podcast discussion of Krasner's memo in context of Texas candidates, see here.) Soon, prosecutors in other states began running mimicking parts of Krasner's approach as well as expanding or exploring other decarceral programs.

In Texas, though, the decarceral efforts of our Democratic DAs have been much more modest.

Harris and Travis Counties have created special courts for state-jail felonies that have helped chip away at state-jail incarceration rates. Joe Gonzalez in San Antonio took a won't-prosecute stance on low-level pot possession (Ogg created a pretrial diversion program for pot.) And both Mark Gonzalez and Margaret Moore found themselves in the happy position to replace such embarrassingly bad prosecutors, they could look like an improvement just by avoiding overt misconduct and not drooling on themselves in public.

On bail reform, in particular, for the most part these prosecutors' positions are far from "progressive." And even if they are, as with Creuzot, judges, local criminal-defense attorneys, and other special interests have proven effective at throwing a monkey wrench into potential solutions.

Ogg in particular has chosen to pick fights with county commissioners, newly elected Democratic judges, reformers, journalists, and academics over every perceived slight, leaving herself ever-more frustrated and isolated. Most prominently, she attacked the pending bail-reform settlement and demanded the county radically increase her staff size without acknowledging how that would a) create disadvantages for underfunded indigent defense or b) run counter to decarceration goals. (Recently a group of scholars came out to criticize the methodology of a study her office promoted to justify the request for more staff.)

Creuzot was the first Texas DA to more comprehensively articulate his own decarceral agenda, sort of a Larry-Krasner-Lite, but whose pronouncements are peppered with "y'alls." His policies were more modest than, say, newly elected prosecutors in Philly, St. Louis, or Boston. Even so, there's no doubt Creuzot's positions were more concrete and his thinking about decarceration is the most-well-developed of any Lone-Star prosecutor. Indeed, his general election vs. a Republican incumbent essentially centered around which one of them would be more reform-minded.

By contrast, in Houston, some of the same reform voices who prematurely hailed Kim Ogg as a progressive in 2016 are calling for her replacement by Audia Jones. Margaret Moore last year asked local reformers to endorse her push to merge the District and County Attorney offices under her control, but refused to enact any of the reforms local advocates wanted in return. As a result, the merger didn't happen and she now faces a serious reform challenger in Jose Garza.

Going forward, if any of these insurgents win in the coming Democratic primaries, then the terrain will have shifted and "progressive" will no longer effectively serve as a synonym for "Democrat" in Texas when it comes to prosecutor elections, as seems to have been the case so far.

In Austin, a reminder why indigent defense should be independent of the judiciary

Judges in Travis County later today will consider a public-defender proposal that became controversial when the local criminal-defense bar stormed away from the table like spoiled children. (The judges initially opposed a PD office outright, but some of them appear to have softened up.) Luckily, not all the defense lawyers on the working group quit, more were added, and the county-convened working group continued its work, producing this proposal for a public-defender office to handle 30% of the indigent caseload in Travis County criminal courts.

In a sop to the local defense bar (which, personally, I wouldn't have afforded them, after their self-righteous hissy fit), the proposal solicits new resources for the existing "Managed Assigned Counsel" system, which has been an embarrassing failure by any measure. But it would also establish a public-defender office in the largest American county not to have one. And over time, Grits has little doubt which system will prove more effective.

The managed-assigned-counsel system in Austin has been criticized for not promptly appointing counsel, and attorneys with the largest caseloads took on MORE cases under the CAPDS system than before. Inmates spent more time in jail. And in general, outcomes for indigent defendants in Travis county were worse than defendants with private lawyers, while national analyses have found outcomes for public defenders and retained counsel are much closer.

So if Travis County judges were making a decision based on the merits, they should absolutely support a public-defender office. But here's the thing: Ethically, it shouldn't be any of their business.

Texas law gives elected judges tremendous control over appointment of counsel for the indigent. However, the very first of the American Bar Association's 10 principles on indigent defense declares that the appointment, payment, etc. of defense counsel should occur independently of the judiciary. That's the county commissioners' business, not theirs.

That's necessary to avoid the appearance of conflicts of interest. You don't want a judge appearing to pick a poor attorney for a maligned defendant, nor choosing an exceptional one for a family friend. You don't want them hiring lawyers with a reputations for "moving cases" at the expense of asserting defendants' rights. Plus, criminal-defense lawyers who practice before local courts frequently are among the largest contributors to judges' electoral campaigns. So from the outside, an appearance of reciprocity may exist no matter what the individuals' intentions. (Occasionally, in Texas, it's more than just an appearance.)

All of this is a problem. Thus, the ABA's first "principle" of indigent defense reads: "The public defense function should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel." Specifically, the ABA said "selection, funding, and payment" of attorneys should be independent of the judiciary.

As such, here's the bottom line: As politicians, Travis County judges legally can intervene to oppose a public-defender office. But as attorneys and custodians of the legal profession, they should refrain and support what the commissioners court wants to do.

Ignore Austin defense bar: Create Travis County public-defender office

Like petulant children, the Austin criminal defense bar pulled out of a working group created by Travis County to plan for creation of a public-defender office. I've uploaded their letter here.

Continuing the whine-fest they began last fall, ACDLA complains that the county isn't properly considering whether to increase funding for their sorry, failed, embarrassing "managed-assigned counsel" system, in which the local criminal-defense bar was supposed to regulate itself. Feeling snubbed, they're taking their toys and going home.

When Austin's managed-assigned counsel system was created, attentive readers may recall, Grits opposed it and thought the county should have funded a public defender instead. Now, they definitely should.

One of the difficulties criminal-justice reformers face, at least in Texas, is that the criminal-defense bar, for the most part, is not a reform supportive group. Individuals, maybe, but not their organizations. Whereas the state prosecutor association's political stances derive from their interests in court, promoting tough-on-crime policies that empower the government, criminal-defense lawyers typically do NOT promote legislation and polices to benefit their clients. They are trade associations made up mostly of sole proprietorships, and their main interests are commercial interests.

Thus, Texas criminal defense lawyers tend to oppose public defenders at any level. Last session, the biggest organizing effort by the state criminal defense bar was to oppose a tiny public-defender office for capital appeals, even though there's vast evidence the private bar has consistently failed at the job in these complex and highly specialized cases.

Disingenuously, ACDLA claims it's some big problem that a Travis County public-defender office would only take 30 percent of indigent cases. (As though PD offices in other Texas counties don't take on part but not all of indigent caseloads.) They insist a new office should take all cases, or none at all.

That's a strategic position, of course, not their actual view. They oppose creation of a public-defender office of any type. Full stop. But they know that the only proposal on the table is for a PD to take a third of the cases. Ironically, that's mainly in deference to the local criminal-defense bar, who do not deserve it.

Now, the Travis County Commissioners Court should take ACDLA at their word, eliminate appointed counsel entirely, and fully fund a public-defender office, using appointed counsel only for conflicts and other minor roles.

The local defense bar had their chance. They proposed the managed-assigned counsel system in the first place as an alternative to a public-defender proposal, and now everyone but them can see that it failed miserably. The lawyers were better off, but the clients were worse off. And the purpose of indigent-defense services is to represent the interests of the clients, not the lawyers.

Ignore self-interested complaints by defense bar over Travis County public defender creation

Your correspondent and Just Liberty signed onto this letter supporting creation of a public defender office in Travis County. Give it a read.

Embarrassingly, the local criminal defense bar in Austin opposes this move. But quite honestly, they had their chance with the "managed assigned counsel" system they foisted onto the county. That system has been an abject failure and the commissioners court should stop listening to the people promoting it.

Geoffrey Burkhart, the new head of the Indigent Defense Commission, explained to commissioners court members how a fundamental conflict of interest faced by Travis County defense attorneys is producing bad outcomes. Reported the Austin Monitor:

Defense attorneys can earn the same amount of money whether their defendant accepts a plea bargain or if the case is dismissed, with the first often taking only a fraction of the time as the latter. Effectively, if a plea bargain is quickly accepted, a defense lawyer’s hourly wage increases dramatically. If too many cases are piling up for attorneys, there is even greater incentive to swiftly reach a plea deal. 

As a remedy, TIDC suggests a public defender office to take over 30 percent of Travis County cases – enough to keep attorneys and other employees busy but not so much as to pressure them to rush cases. For regional reference, the public defender office in Dallas takes about 50 percent of cases, while that in Harris County handles just under 9 percent of cases.

That's so obviously the right move, it's distressing that local criminal defense lawyers would publicly cling to the failed managed-assigned-counsel system, which produces MUCH worse outcomes for defendants than those wealthy enough to retain private counsel.

Travis County's "managed assigned counsel" system was the local criminal defense bar's alternative to a public defender office the last time one was proposed, and their expensive, cumbersome, and overly bureaucratic suggestion failed. County commissioners should not now include those voices in the planning process for the new public defender office. They had their chance, and the continued naysaying and whiny protests are unhelpful and, at this point, superfluous.

In light of that history, now's the time to create a public defender office, not to debate one.

A flaw in Travis County's plan to ↓ DWLI

Chris Harris of Grassroots Leadership reported yesterday on Twitter that Travis County will institute a new program to reduce arrests for driving with an invalid license. Here's what he says that will mean for drivers with revoked licenses:

• If cited (not arrested) by police, you will be charged with a Class C instead of B 
• If you plead guilty and get your license and insurance renewed w/in 6 months the charge is dismissed

Earlier this summer, the Austin Statesman reported that, "The number of Class B misdemeanors filed last year in Travis County — 3,425 — was three times higher than the combined total in Bexar, Dallas and Tarrant counties and exceeded the number of filings in the more populous Harris County, according to data produced by the Office of Court Administration."

That article blamed Austin PD for filing the higher charge, but prosecutors have complete discretion over what charges to bring in these cases: Those were decisions by the County Attorney's office. Now that they've made a different one, clearly they expect APD to just comply.

Which brings us to the key problem: even now it's unclear to your correspondent that County Attorney David Escamilla has proposed a workable plan. Most people with suspended licenses in Texas had them revoked for nonpayment of driver-responsibility surcharges. So, how may we expect them to get their license renewed within six months?

Can't pay means can't pay; one can't squeeze blood from a stone.

This will be better. Charging people with Class Cs instead of Class Bs limits the bad outcomes. But it will still result in punishing people for being too poor to pay their Driver Responsibility surcharges, and in the end, punishment won't fix that problem.

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.

March Reasonably Suspicious Podcast: Primary election wrap-up, pushing #cjreform in state party platforms, unconstitutional legal fees, Harris County bail suit update, a stunning judicial power play, and more

Sliding in under the wire at the end of the month, check out the March 2018 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice politics and policy. Subscribe on iTunes, GooglePlay, or SoundCloud, or listen to the podcast here:


Here's what my co-host Mandy Marzullo and I talked about this month:

Top Stories

• Conviction overturned because Tarrant County District Judge George Gallagher shocked defendant with stun belt for no valid security purpose.
• Texas Court of Criminal Appeals holds more court fees unconstitutional for raising revenue rather than paying for justice services.

Primary election roundup

• Recapping Texas contested Texas DA and Court of Criminal Appeals races
• Comparing "progressive" DA candidates in Dallas and elsewhere to Philadelphia's Larry Krasner
• Update on Just Liberty's campaign to include criminal-justice reform in both Texas state party platforms. Includes Just Liberty's catchy jingle done by some of the same amazing musicians who performed our original podcast music.

Check in on Texas pretrial reform litigation

• Harris County bail litigation: Interview with Susanne Pringle, executive director of the Texas Fair Defense Project, regarding the 5th Circuit's ruling in the Harris County bail litigation in which her group is one of the plaintiffs.
• Travis County plea mill challenged: Local attorneys file a demand letter challenging misdemeanor dockets where lawyers must negotiate plea bargains almost immediately after receiving the file and meeting their clients for the first time.

The Last Hurrah

• Harris County District Judge Michael McSpadden blamed Black Lives Matter for poor advice to black defendants sitting in jail.
• For 30 years, municipalities in Tarrant County have paid to house defendants pretrial in unregulated city jails until prosecutors at the DAs office filed charges. The new Sheriff has changed the practice to match the other 253 counties.
• Johnnie Lindsay, one of the earliest Dallas DNA exonerees who was frequent visitor to the state capitol advocating innocence reforms, passed away this month. Scott Henson remembers him and his contributions.

Find a transcript of the podcast below the jump.

On the institutional basis for ineffective assistance: Travis Jail Reduction Docket

Travis County will make unspecified changes to their "jail reduction docket" to counter criticisms that it operated as a plea mill coercing guilty pleas out of jailed misdemeanor defendants in exchange for their freedom. Misdemeanants who couldn't make bail would be herded into the courtroom in bunches, meet their lawyer for the first time sitting on a bench in the courtroom, and typically plea guilty in exchange for time served and their freedom. As Grits noted earlier, this has been going on for at least two decades.

In their defense, "Since 2014, there has been a 50 percent increase in defendants who have received a personal bond at Jail Reduction Docket." So use of personal bonds for misdemeanants has been increasing. Judge Elisabeth Earle said judges want to do more personal bonds but "Sometimes lawyers don’t want to present them." (Read: Sometimes Austin criminal defense lawyers provide ineffective assistance to their clients, and judges pretend there's nothing we can do.)

Otoh, there may be a practical reason lawyers aren't going the extra mile: The Statesman article noted that, "pay for attorneys who resolve cases in the jail reduction court was lowered in 2016 from $275 to $175," which hardly bodes well for quality representation but which likely does reflect (or even overstate) the amount of time presently spent on each case. Perhaps the problem is simply that nobody's getting paid enough to investigate a client's background even minimally to make the case for a personal bond?

Of course, just because there's a structural, institutional "nudge" embedded in the system encouraging ineffective assistance doesn't excuse it. Attorneys are professionals obliged to exhibit at least minimal levels of competence at their craft. However, the Jail Reduction Docket seems to rely and thrive on underpaid attorneys not putting up much of a fuss.

All of which to me constitutes further evidence that Travis County needs a public defender if the commissioners court wants competent representation for the indigent. The private bar has, for too long, controlled that process and their clients' interests - not to mention the taxpayers' interest, and the interests of justice - have suffered as a result.

See prior coverage at the Austin Chronicle for more detail.

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.

Privately funded prosecutions at the Travis County DA

A joint investigation by the Austin Statesman and the Texas Tribune exposed a pay-to-prosecute arrangement between the Travis County DA and a private insurance company. Go here for details. A coupla thoughts come to mind:

There are numerous precedents for this sort of special treatment, nearly all of them problematic. Most recently, Texas prosecutors have begun to distance themselves from payday lending companies with whom they'd partnered for years to buck up their hot-check funds.

Historically, in the nation's early days there were no district attorneys - nor for that matter state nor federal penal codes - and prosecutions were private legal actions undertaken like any other civil case. Texas' court of inquiry procedure - creatively used to pursue exoneration (successfully) for Timothy Cole and (unsuccessfully) for Todd Willingham, and an indictment for Williamson County Judge Ken Anderson - is a vestigial holdover from this primitive practice of private prosecutions. Its formal, technical function is to determine whether there's probable cause to bring an indictment outside the grand jury process.

So there's precedent for this sort of arrangement, but it's a legal and historical anachronism. And doing it just for one company smacks of pay-to-play. Give the full article a read; this seems like a really bad look.

Squeeze in a visit? Weekly visitation hours at Harris jail 1/4 those in Tarrant

Here are a few relevant data on inmate visitation from Houston and around the state as reported by James Pinkerton at the Houston Chronicle (Jan. 7)

For years, visits have been a frustrating experience at the Harris County Jail, where visitation policies are among the most restrictive of the state's five largest county jails. And while Harris County's jail system is the largest in Texas, with an average daily population of 8,700, it has lagged in adopting technology to improve visitation that other counties have embraced, including video visitation for inmates.

"I have to take three buses to get over here to see my husband, and they give me 15 minutes and I can't hear half of what he says," said Lawhern, who lives in Pasadena and tries to visit Trevino twice a week. Lawhern said that because she often can't hear what her husband said, she must follow up her visits with a collect phone call from her husband, yet another expense for a woman who is simply trying to support her spouse.

On the case for maximizing visitation opportunities:

Ohio prison officials, in a 1999 study, noted that visitation not only helps efforts to rehabilitate inmates while they are locked up, but provides a bigger benefit after they are released.

"The prisoner who has maintained contact with supportive individuals such as family and friends has a 'safety net' when he or she returns to the community," wrote Reginald Wilkinson, director of the Ohio State prison system. "Family and friends provide a feeling of belonging to a group. They often help released offenders seek and find employment and conduct themselves in a positive, constructive manner after release."

In 2011, the Minnesota Department of Corrections published an exhaustive study concluding that "prison visitation can significantly improve the transition offenders make from the institution to the community." The study noted that any visit reduced, by 13 percent, the risk of a new felony conviction and dropped by 25 percent the risk of violating release conditions. Visits from clergy, fathers, brothers and sisters and in-laws were the most beneficial to the inmate's future conduct after release, the study found.

In this case, it was Democratic Sheriff Adrian Garcia who reduced visitation hours in Harris County to among the  lowest among large Texas jurisdictions:

Garcia cut visitation to the county jail in 2011 - from seven to four days - a move the sheriff said at the time would save $1.3 million annually in overtime pay for detention officers as the county faced a budgetary crisis. Asked why the visitation was not restored as county finances improved, Director of Public Affairs Alan Bernstein said there have been no recent complaints from the public.

Civil rights advocate Amin Alehashem, staff attorney and regional director for the Texas Civil Rights Project-Houston, expressed concern over limited jail visits.

Of course, they have had longstanding complaints about failures of phone systems at the visitation center, according to the article, and they've yet to fix those, either. So quien sabe?

Regardless, visitation is handled differently in different Texas counties, according to Pinkerton's first-cut survey:

Harris County allows inmates four 20-minute visits each week, to take place during the 21 hours of visitation offered over four days.

In contrast, Tarrant County Jail inmates can receive up to two visits a day in Fort Worth lockups, where visitation is allowed seven days a week from 9 in the morning to 9 at night, or a total of 84 hours a week. The Bexar County Jail also limits visits to four days, but offers a window of 30 hours of overall visiting time during the week.

Since 1975, Texas law has required that jails provide a minimum visitation of at least two visits - one during a weekday evening and one on weekends - and several mid-sized counties, including the Neuces County Jail in Corpus Christi and El Paso jails, have limited visits to two days a week.

Toward the end, Pinkerton quoted a Travis County Sheriff official waxing favorably about video visitation without mentioning any of the controversy it generated, either from listening in on conversations with defense counsel or the bait-and-switch at the commissioners court which was originally told face-to-face visits would continue. Grits upbraided him mildly in the comments for not fact checking those assertions ("Google is your friend"). Otherwise, the story was a good update on an important, rapidly emerging issue.

Michael Morton Act costs, and the costs of failing to disclose exculpatory evidence

Travis County officials are grumbling at the costs of implementing the Michael Morton Act. Reported the Austin Statesman (Dec. 23):

The Michael Morton Act, named for a Williamson County man who spent 25 years behind bars for the murder of his wife before DNA evidence proved his innocence, requires prosecutors to produce all potentially exculpatory evidence before trial and to inventory and make copies of all evidence. It went into effect Jan. 1.

In June, Lehmberg and Escamilla requested 17 new staffers to deal with the act, and the commissioners approved eight. But the backlog of cases that hadn’t been approved for compliance with the act continued to grow — it was 5,172 in mid-December — and the prosecutors’ offices a week ago asked for 12 more employees.

Biscoe said Tuesday he was “not happy” that the Legislature indicated that the act would have a minimal impact on county budgets.

“That’s just not the case,” he said. “The fiscal note (for the law) was faulty.”

Five of the six largest counties have added staff because of the act. Travis County has added the most.

On the flip side, in Houston we find an example of the costs of prosecutors failing to turn over everything in their files to the defense. Former Harris County DA candidate and Cold Justice reality TV star Kelly Siegler found herself on the dock defending her decisions about what evidence to give to defendant David Temple's counsel in a high-profile murder case. Reported the Houston Chronicle (Dec. 22):

Attorneys for Temple, including his lawyer at trial Dick DeGuerin, have long said Belinda Temple was killed by teenage neighbors who were interrupted during an after-school burglary. In motions filed after the case was re-opened, Deguerin and other lawyers have accused Siegler of withholding information about the teenaged neighbors.

During contentious questioning by attorney Casie Gotro, Siegler said she turned over evidence about several shotguns recovered in 2009, the teenage neighbor and his friends along with other information she decided was relevant.

However, she said determining whether evidence was Brady information often fell into a "gray area." She said she did not turn over evidence of every "rabbit trail" and "kooky lead."

One of those "kooky leads" was a neighbor's wife who called police to tell them her husband had killed Belinda Temple. Siegler said detectives investigated the story and decided it was not true and that she did not turn it over to the defense.

"When the defense is to just throw mud at the wall and see what sticks," Siegler said. "Brady is an impossible burden."

The former prosecutor also found herself hamstrung by the lack of detailed notes in her files about when she turned over the evidence or told DeGuerin.

"I don't remember," was a constant refrain during more than five hours of questions, which are expected to continue Tuesday.

The legal issues in the case include the claim that Temple's due process rights were violated by prosecutors withholding Brady information, an ineffective assistance of counsel claim against DeGuerin and that Temple is "actually innocent."

After hearing from more than a dozen expected witnesses including Siegler about the investigation and the prosecution, Gist will issue findings of fact and conclusions of law to be reviewed by Texas' highest court. That court would decide if Temple gets a new trial.

Clearly, had the Michael Morton Act been in place at the time of Temple's trial, this situation could have been avoided. Even if Temple is guilty, the expense and difficulty of retrying him should not be underestimated. But what if Temple is innocent and the alternative suspects really did it? Then, the tangible and intangible costs grow much higher. Siegler was operating under different rules when she prosecuted Temple and Judge Gist will decide whether she followed them. But the whole situation exemplifies the sort of problems the Michael Morton Act was intended to solve. Counties understandably grumble about another unfunded mandate, but opening up prosecutor files also prevents future costs by reducing errors and appeals. And it makes the adversarial system more robust and less one-sided. That's worth something, too, even if it doesn't show up on the accounting ledger.

BTW,  does anyone else find it odd that these prosecutor offices, which for years insisted Texas didn't need an open-file law because they already all had open-file policies, all of a sudden need extra staff to comply with a law they said was redundant with what they were already doing? Perhaps some of those titular open-file policies we were told about prior to the act's passage weren't quite as open as was portrayed.

Video visitation in jails: Despicable new funding stream makes jails less safe

When video visitation was first introduced in county jails, Grits supported it. It was pitched as a supplement to face to face visitation, a way someone could communicate with a loved one (or client) from a distance when for whatever reason they couldn't come visit them in person. Proponents insisted face to face visitation would still be possible.

Now, that do-gooder pretense has been abandoned. Increasingly, county jails shifting to video visitation are eliminating face to face visits entirely - as is happening in Bastrop County this month and Travis County did last year - so a private vendor can charge families for the privilege of communicating with jail inmates. With 20/20 hindsight, it's clear I wasn't cynical enough, failing to foresee that counties and companies would seek to monetize families' visits with incarcerated loved ones the same way that they gouged them on phone calls before the FCC reined them in.

Here's a brief fact sheet on video visitation from the Texas Criminal Justice Coalition adapted from a longer report (pdf) they published last month along with the group Grassroots Leadership. (I'd linked to coverage from the Texas Observer when the report first came out, but apparently not the underlying document.) Check out TCJC's observations concerning Travis County's video visitation program below the jump.

New Travis 'private defender' will lower bottom line of oft-appointed lawyers

Texas Lawyer has a report on Travis County's new indigent defense system (Oct. 9) in which attorney assignments have been outsourced to a nonprofit organization operated by the local criminal defense bar. The project is ramping up now:

From Oct. 10 to Oct. 24, Davis said attorneys who are now on the list to accept indigent-defense appointments must reapply to land spots—based on qualifications and experience—on the private defender service's lists. For example, there will be lists for felonies, misdemeanors, appeals, mental health cases and Spanish-speaking cases.

"As an indigent defendant comes into the system by arrest we have a wheel or rotational system to select attorneys," [executive director Ira] Davis said. "It's a random process, but it's a random process among qualified attorneys."

Some local attorneys, though - the ones receiving the lion's share of appointments under the old system, are displeased that the new approach will reduce their incomes:

"The next year or so is going to be very difficult because there are going to be some growing pains. There are some lawyers who have been receiving court appointments in a disproportionate share who are going to be hurt by this financially, so there is a significant amount of pushback from the lawyers who see their bottom line being harmed by this system," said Judge David Wahlberg of the 167th Criminal District Court in Austin.

Defense lawyers who take indigent-defense appointments contacted by Texas Lawyer declined to comment on the change.

Wahlberg said the service would eventually provide a "tremendous benefit" to the criminal-justice system by giving defendants better representation and making them more confident in their court-appointed lawyers. He explained that when a client sees a judge handling payment for his lawyer, the client might question his lawyer's independence.

"If there is not an actual influence there, there's at least a perceived influence," Wahlberg explained. "Trying to ameliorate that problem is maybe the biggest benefit of this."

See prior Grits coverage.

Jails can (and should) opt out of federal Secure Communities program

Travis County Sheriff Greg Hamilton has insisted in the past that his hands are tied when it comes to participation in the federal Secure Communities program, which requires jails to place immigration holds on arrestees who are otherwise eligible for release, even though most of them were charged with minor offenses, including traffic offenses and there's scant evidence the program improved public safety.

A few years later, though, we now know that it's simply false that the Sheriff is compelled by a federal mandate to honor ICE deportation holds, as evidenced by this article from the LA Times, "More jails refuse to hold inmates for federal immigration authorities" (Oct. 4). Here's a notable excerpt rebutting the "we have no choice" meme.

Although some localities started limiting the number of immigration holds a few years ago, the trend of completely ignoring the requests gathered steam this spring after a series of federal court rulings determined that the immigration holds are not mandatory and that local agencies should not be compelled to follow them. ...

Currently, more than 225 local law enforcement agencies nationwide have adopted policies to completely ignore requests by Immigration and Customs Enforcement officials to hold an inmate for an additional 48 hours after his or her scheduled release date from jail. Another 25 agencies have limited the number of immigration requests they will honor. New York City is among those considering ways to stop or limit holds. ...

In March, the 3rd U.S. Circuit Court of Appeals in Pennsylvania ruled that states and local law enforcement agencies had no obligation to comply with immigration hold requests because the requests did not amount to the probable cause required by the Constitution to keep someone in jail. Other courts have come to similar conclusions.

On Monday, another federal judge in Chicago reaffirmed that local law enforcement agencies should not consider the ICE holds mandatory.

In New Mexico, all county jails are no longer honoring immigration holds, said Grace Philips, general counsel for the New Mexico Assn. of Counties.

Some county officials stopped the practice because they were fearful of exposing themselves to expensive litigation, Philips said. Others saw it as a way of relieving their already overburdened jails, especially because the Department of Homeland Security did not reimburse localities for housing the inmates during the extended stay.

In the neighboring border state of Arizona, only South Tucson is declining to grant holds, also known as immigration detainers. In Texas, it appears that no locality stopped honoring hold requests, said Lena Graber, an attorney who tracks the issue for the Immigrant Legal Resource Center in San Francisco.

In California, a state law implemented in January — the Trust Act — stipulates that law enforcement agencies can only honor immigration holds if the inmate who is suspected of being in the country illegally has been charged with, or convicted of, a serious offense. Also, most law enforcement agencies in the state — including the Los Angeles Police Department — adopted policies ignoring the immigration holds altogether after the federal rulings came down.

So this claim that counties' hands are tied fails to hold up to scrutiny. These are policy choices, not mandates from on high. In the current, nativist climate, perhaps they are popular choices in Texas. But Hamilton and other Sheriffs must abandon the claim that this is something the feds can force them to do. That's a fib.

That said, California's Trust Act sounds like a decent compromise on this: Limit ICE detainers to serious offenses and the controversies about un-reimbursed jail costs and mothers deported over traffic offenses go away. Few people, myself included, have a problem with ICE detaining dangerous people for deportation after they've served their sentence. My beef has always been with casting the net too widely, needlessly boosting jail costs, breaking up families and creating disincentives for witnesses and crime victims to cooperate with police.

MORE: Sheriff Hamilton stands fast despite community criticism over participation in the program.