Feds to launch (voluntary) national police use-of-force database

The revelation that a quarter of Texas police shootings went unreported to the Attorney General, as required by state law, drives home the message in this LA Times headline: "There's no point in collecting information on police shootings and force if cops report inaccurate information." Even law enforcement types seem to prefer gathering data as an antidote/alternative to continually being subjected to trial by anecdote as each new damning video arises. So we're at a political moment ripe with opportunity on this front.

Stepping into the breach just months before the incumbent leadership heads out the door, DOJ recently announced it will create a national database of police use of force incidents, starting with a voluntary reporting program. This is an example of the President doing what he can in the absence of Congressional backing. (DOJ is taking over a program initially spearheaded by the white house.) At the beginning, only federal agencies and local departments that volunteer to participate will contribute data.  The initiative is structured so that, once the system is up, local departments that want to can get started. And Congress will be positioned to make reporting mandatory later on if the pilot succeeds and political winds support it.

Until then, beginning some time next year, getting local departments to participate in the federal use-of-force data program will provides a new target topic for local police accountability, #blacklivesmatter activists, etc.. Austin and Dallas participated in the pilot data program which prefaced this move, so one would expect those agencies to participate. But as for the others, unless the Legislature mandates participation - which wouldn't be a terrible idea  - it'll be up to local advocates to push departments to gather and publish use of force data.

Feds will begin closer tracking of deaths in police custody

Good news: The DOJ plans to begin comprehensively tracking shootings by local police. See their notice in the Federal Register. Find explanatory coverage here:

• NY Times: Justice Department to streamline tracking of police killings
• Vox: The federal government is finally making police report every time they kill someone
• The Guardian: Police will be required to report officer-involved deaths under new US system

Amanda Woog, who recently released her curated database of Texas deaths in custody since 2005,  spoke with Texas Public Radio about the development. Notably, Texas' new reporting requirement on police shootings helpfully includes non-fatal incidents, so the data she's gathering going forward is broader, even, than what the Justice Department has suggested.

Related:

• Podcast: New Texas death-in-custody data online
• Why the increase in number of Texans shot by police?
• Journalist's Resource: Deaths in police custody in the United States: Research review

Forensic dentists bite back, limiting media outrage as an innocence reform, and other stories

Here are a few items which merit Grits readers attention, even if your correspondent has no time to dwell on them:

New Hires
Shakira Pumphrey, former staffer on criminal justice issues for Texas House Speaker Joe Straus, has taken a position as Policy Director of the Texas Criminal Justice Coalition. Meanwhile, Empower Texas has jumped into the criminal justice arena, hiring Lawrence B. Jones III to rein in overcriminalization and limit asset forfeiture. Congratulations to both!

Forensic sciences taken down a peg
News first broken on this blog that DNA mixture evidence involved subjective interpretation by technicians using non-standard methodologies and often dubious probability calculations has completed the circle begun with the publication of the 2009 National Academy of Sciences report, "Strengthening Forensic Science: A Path Forward." That document called into question the scientific basis for most forensic evidence but gave DNA a pass. Now we know that much of forensics in recent decades has been "pseudoscience," as the Boston Review this week put it. And DNA mixture evidence, as described recently by a Boston University quarterly, "has never been about achieving certainty. It’s about partial matches, probabilities, big-time math, and a healthy dose of judgment calls by forensic scientists." Except that's not how it was portrayed in court. Together, those two articles provide a good, quick, backgrounder on the nascent crisis, really crises, undermining the credibility, if not yet the status, of traditional forensic science.

Forensic dentists bite back
At a Forensic Science Commission committee meeting in Dallas on Monday, forensic dentists tried to counter evidence with emotional appeals and pictures of dead children. Sounds like commissioners weren't biting.

Will post-pick-a-pal grand jury view officer shooting differently?
Parents of a teenager killed by an off-duty police officer want the case the case re-presented to the grand jury now that the pick-a-pal system has been abolished.

Media, outrage, and 'vigilante justice'
The Dallas News asked its readers what they'd do to prevent wrongful convictions. One raised an issue which isn't discussed as much as it should be: "public outrage fueled by emotion and often biased media, not to mention the mental stress of public officials, law enforcement and those connected to that sector of society ... can factor in to what appears in cases like this to seem like vigilante justice." Glad someone said it; glad they printed it. That's a common denominator in a large proportion of false convictions which result in exonerations.

The Dissenters
Here's an interesting piece on the politics of judicial dissents.

Cry me a river: PDs grouse about federal consent decrees
The Washington Post and PBS Frontline examined major DOJ interventions at police departments in a story which finds our old pal Vanita Gupta called to account for agency actions taken years before she assumed control of the Civil Rights Division. C'est la vie. That's the job you signed up for, babe! I could nitpick a lot with this story. They complain about costs of DOJ intervention but how do you quantify the costs of a corrupt or excessively violent police department? Are we really going to say New Orleans would have been better off if the feds let them stew in their own problems? We heard a lot of similar complaints back in the day when Texas prisons reported to federal monitors under Ruiz vs. Estelle. But in truth, those reforms are why Texas' prisons never became the overcrowded hellholes one saw, for example, in California before federal courts ordered them to cut the prison population. The reality is, departments typically don't reach the point of requiring DOJ intervention until they're wallowing in a full-blown crisis they clearly can't manage on their own. DOJ is looking to make examples of the worst departments, not those which are merely bad or poor. So while I'm sure it's true departments under consent decrees must endure some excessive bureaucracy and waste during the remediation period, it's hard for me to feel too sorry for them.

Will Houston PD, DPS begin getting warrants for Stingray use now that feds require one?

Now that the US Justice Department and the Department of Homeland Security have begun requiring agents to obtain search warrants to use "Stingray" surveillance devices (fake-cell phone towers operated by police which trick your phone into routing calls through it), will Houston PD, Fort Worth PD, Texas DPS, and other Texas agencies we don't know about who own those devices start getting warrants, too?

Houston PD doesn't even tell local prosecutors when they use the device, much less seek warrants from a judge. But that approach now diverges significantly from federal practice. Can it be sustained?

The Texas Legislature this year failed to pass legislation by Rep. Duane Bohac and Sen. Craig Estes which would have installed a warrant requirement in state law. But there's an argument the Fourth Amendment to the US Constitution requires a warrant, anyway. So, with the feds backpedaling on the question in the face of numerous court challenges, Texas agencies should probably start seeking warrants, too, or else risk a federal benchslapping down the line.

Resources on Texas and federal hair microscopy reviews

Today I compiled these resources for a colleague on Texas and federal reviews of flawed forensics in hair microscopy cases and thought there may be other Grits readers who're interested:

• Texas Hair Microscopy Review- Forensic Science Commission
• FBI/DOJ Microscopic Hair Comparison Analysis Review
• NACDL's The Champion, "The Microscopic Hair Comparison Analysis Review Project: A Milestone in the Quest for Forensic Science Reform"
• Sept. 2014 letter from DOJ to then-Attorney General Greg Abbott notifying him that Texas cases were included in the review.
• DOJ, Office of Inspector General, "An assessment of the 1996 Department of Justice Task Force Review for the FBI Laboratory."

There's also a good discussion of the limitations of microscopic hair analysis with useful footnotes in this fat but useful reference book, which sits on a shelf above me but is also available online. And the problems with hair microscopy share themes with other non-scientific comparative forensic disciplines critiqued in Chapter 5 of this 2009 National Academies of Science treatise; here's a link directly to the subset of that discussion on hair analysis.

Roundup: The contested, alleged suicide of Sandra Bland in the Waller County Jail

Your preoccupied correspondent had not until this morning read the voluminous press surrounding Sandra Bland's untimely and unlikely suicide in the Waller County Jail last weekend. For those, like me, playing catchup on the story, here's a sampling from the barrage of coverage:

• UPDATED: See video from the stop.
• Video: DPS Officer Became Enraged Over Cigarette
• State jail commission cites Waller County officials after investigating Sandra Bland's death
• Violations cited in arrest, custody of woman in Waller County Jail
• Advocates press for details in Waller County Jail death
• Texas Rangers investigating death of woman in police custody
• FBI joins investigation into death of Waller County inmate
• Texas trooper in traffic stop violated policy
• Texas woman 'in good spirits' before jail death, friend says
• State Sen. Royce West calls on DPS to release video of woman’s traffic stop
• Waller County DA: Bland's death won't be 'swept under the rug'
• Community reacts to death inside Waller County Jail 
• Locals hold vigil, grapple with Sandra Bland's death
• Waller County Texas Sheriff Had Been Fired For Racist Remarks Before Chicago Woman Was Found Dead
• The Texas county where Sandra Bland died is fraught with racial tentions
• Woman Found Dead In Waller County Jail Cell Suffered with Depression, PTSD
• Officials decry some [social media] posts in Texas jail death 
• What we know about Sandra Bland, who died this week in a Texas jail
• Sandra Bland mourned from Illinois to Texas 
• On Twitter: #SandraBland

DOJ civil rights chief shaped by landmark TX litigation

In the course of twenty years in Texas' criminal-justice reform movement, Grits has enjoyed the good fortune to work with a bevy of amazing women and, for whatever reason, only a handful of men operating at the same, high levels who for the most part were unable to get out of their (our) own way.

Emblematic of the former, happier, group is Vanita Gupta who took over as acting head of the Civil Rights Division at the US Justice Department in October but, in a past life, was once co-counsel on behalf of the NAACP Legal Defense Fund in the legal tussle following the Tulia drug busts. She went on to run national ACLU's Campaign to End Mass Incarceration before President Obama selected her for the Civil Rights post.

The Tulia episode, which for all intents and purposes inaugurated Texas' 21st century criminal-justice reform movement as we know it today, transformed the political and legal landscape surrounding the drug war and innocence issues in this state. Bail mechanisms put in place to free the Tulia defendants while awaiting the processing of habeas writs were later routinely used to free DNA exonerees. Voting blocks first created to pass reform legislation in the wake of the growing national scandal became templates for future criminal justice legislation, including Texas' much-vaunted 2007 probation reforms. And the abolition of Texas' drug task force system significantly shifted the focus of local law enforcement in ways that we couldn't foresee at the time.

So Grits couldn't avoid a moment of nostalgia when this profile on Gupta - who in the wake of the post-Ferguson police accountability maelstrom became an instant national figure -  prominently featured her years working on the Tulia case as a formative experience:

In 2001, a 26-year-old, fresh out of law school, had just started at the NAACP Legal Defense Fund and was looking for a case. When she saw a short documentary about a troubling large-scale drug bust in a tiny Texas town, with facts she thought were "almost too outrageous to believe," as she later put it, Vanita Gupta decided to check things out for herself.

Tulia, Texas, a town of about 5,000 people, was the scene of a large drug bust in 1999 that rounded up more than 10 percent of the city's small black population. A total of 46 people -- mostly black, but a few of them white and in relationships with African-Americans -- were arrested on charges of trafficking cocaine. Local news coverage celebrated the arrests, with one newspaper proclaiming that Tulia's streets had been "cleared of garbage." The defendants were convicted and given extraordinarily lengthy sentences: 300 years. 90 years. 60 years.

The evidence against many of them? Uncorroborated testimony of a single man: a former rodeo cowboy who regularly used racial slurs, whom local police had hired to go undercover and target "street-level" dealers.

After a few days of meetings with family members and a local attorney, Gupta returned to her New York office with so many documents she had to buy an extra suitcase at Walmart. The case would soon grab still more attention. "60 Minutes" deemed the case one of the "worst miscarriages of justice in recent memory." The New York Times described it as a "national symbol of racial injustice." The agent on whose testimony the case rested, who had been named Texas Lawman of the Year in 1999 for his work in Tulia, was called "devious" by a Texas judge, who said he had committed "blatant perjury." The agent was later convicted on aggravated perjury charges. Gov. Rick Perry (R) pardoned most of the Tulia defendants, and Gupta helped the plaintiffs secure a $5 million settlement that required the federally funded drug task force responsible for the arrests to be disbanded.

But Tulia wasn't an isolated incident, Gupta said, it was just the tip of the iceberg. "There is a need for more systemic reform to prevent other Tulias from taking place," she said in a 2004 interview with NYU Law, her alma mater. 

For the record, the Tulia settlement didn't "require" the drug task forces to be disbanded. That happened after a five-year campaign resulting in legislation by Sen. Juan "Chuy" Hinojosa to put the drug task forces under control of the Department of Public Safety. Most of them refused to accept oversight or follow the rules, leaving Gov. Rick Perry little choice but to de-fund them in the end.

Still, Vanita played a pivotal role. And though we haven't communicated in a couple of years, I'd like to think those formative experiences 15 years ago which shaped both of us so significantly still connect us in some small way. I'm really quite proud of her.

Coin flip justice: Prosecutors threaten property rights

On Wednesday, your correspondent testified on behalf of the Texas Criminal Justice Coalition in favor of SB 95 by Sen. Juan Hinojosa which would raise the standard under which the state can seize assets without a criminal conviction under the state's civil forfeiture laws.

Hinojosa's legislation would require the state to provide "clear and convincing" evidence the property was associated with criminal wrongdoing instead of the current "preponderance of the evidence" standard (more likely than not). The bill was heard yesterday in the Texas Senate Criminal Justice Committee. Video is here; it's the first bill up. See coverage from the Dallas Morning News.

Remarkably, there was really only one opposition argument presented against Hinojosa's bill, and it took the form of a threat. Prosecutors told the committee that, if the Legislature insisted they only seize property when evidence that it was used in a crime is "clear and convincing," they would ignore that directive and seek forfeiture under a federal administrative procedure which provides fewer due process rights. The reason they don't do that now is that the feds want a 20 percent cut and don't typically process the smaller cases of a few hundred dollars the way state prosecutors are wont to do.

Grits found that position outrageous and was even more astonished that senators didn't seem affronted by being told, in essence, "If you insist we can't violate Texans' property rights under state law we'll cooperate with Eric Holder and the Obama Administration to go around you." Instead, some of them piled on with rhetoric about how greedy the feds were, how much DOJ hated due process, and treated federal forfeiture in general like a bogeyman that should scare legislators into acquiescing to whatever prosecutors wanted.

Even so, nobody made the claim that "preponderance of the evidence" is the better standard because they thought the state should be able to seize people's property when it's "more likely than not" it was associated with a crime. I think that's because there's really no good argument to support that view that any responsible, morally centered adult is willing to make in public. As I told the committee, a "preponderance" standard means that, if the chances are a scintilla above a coin flip, the state wins, and the government owns the coin. If it was your property, it wouldn't seem like too much to ask that the government provide "clear and convincing" evidence it was used in a crime.

In any event, there's an easy solution to the dilemma posed to the committee by this sort of prosecutor defiance. State Rep. Bill Zedler filed legislation this year, HB 2623, which would disallow state prosecutors from using federal forfeiture unless the amount is over $50,000, it's an interstate crime, or the property may only be seized under federal law.

If the committee simply amended SB 95 with the text from Mr. Zedler's bill, it would fully resolve all the concerns expressed yesterday and ensure that Hinojosa's legislation would actually provide the protections intended, and to which most of the committee (except Sen. Joan Huffman, who outright opposed the bill), seemed sympathetic.

The only other concern, expressed in passing, was that changing the standard could reduce forfeiture revenue to counties. But all the police and prosecutor interests who testified claimed that the overwhelming number of forfeitures - 99 percent, a San Antonio PD cop claimed - involved criminal convictions, so in those cases there's more than "clear and convincing" evidence and there would be no problem using forfeiture under the higher standard. Sen. Charles Perry said his local DA had told him a similar number for the proportion of forfeitures in Lubbock accompanied by criminal convictions.

To be clear, I don't believe for a second that it's true 99 percent of forfeitures involve cases where there's a conviction. The only reason they can get away with saying that is that there's no detailed reporting that drills down to that level of case detail, an issue other bills in play at the Lege this session may address. But if law enforcement can be taken at their word that nearly everyone with  assets seized are convicted, the budget worries entirely dissipate. Those cases will always meet a clear-and-convincing standard. In that sense, their arguments over raising the standard (that nearly everyone affected are convicted criminals) undermined the claim that forfeiture budgets would drop. Both can't be true.

In any event, the only cases where the state might not get as much revenue under Hinojosa's bill are situations where they can meet the slightly-better-than-a-coin-flip standard but not a "clear and convincing" one. And if the Texas Legislature decides the latter standard should prevail, perhaps prosecutors should abide by that dicta instead of immediately seeking to undermine and bypass the law. Or if they won't, perhaps the Lege should just make them.

RELATED: From Unfair Park.

Ted Cruz adopts Big Government, anti-Tenth Amendment stance on pot

Why has Texas Sen. Ted Cruz adopted a Big Government, anti-Tenth Amendment stance on marijuana policy?

According to Politico, he criticized the Obama administration earlier this year (I'd missed it at the time) for failing to arrest pot smokers in Colorado and Washington state, declaring that the failure of the DOJ to prosecute marijuana cases after voters legalized it in those states is somehow “fundamentally dangerous to the liberty of the people.”

Really? Think about it: Abiding by the voters' wishes is "dangerous" to their "liberty"? But arresting them wouldn't be? This is weird, Orwellian, language: War is Peace, Freedom is Slavery, Ignorance is Strength.

I know the guy's running for President but I wish he would at least pretend to represent Texas and not presume to dictate to other states.

What a tone deaf stance, particularly with Colorado a presidential swing state! How can this guy not realize voters in those states - and Alaska, and Oregon, and D.C. - have their own opinions about liberty and voted in favor of it?

Tulia-sting litigator nominated to run DOJ Civil Rights Division

Wow, do I have mixed feelings about the Obama Administration nominating Vanita Gupta to head DOJ's Civil Rights division! I first met Vanita when she and Jeff Blackburn litigated the wrongful conviction cases arising out of the infamous Tulia drug sting and there aren't many lawyers I hold in higher esteem. So it's not that I question the quality of the pick.

More, it's that Vanita has done such a good job at national ACLU's Campaign to End Mass Incarceration that I hate to see a successful advocate's work neutered by DOJ bureaucracy, particularly given the uncertainty surrounding Eric Holder's departure and the fact that his successor will serve at most two years. Her work at ACLU bridged liberal-conservative divides, as evidenced by Grover Norquist and Marc Levin's quotes in Time magazine endorsing her nomination. And Grits lacks confidence that whomever is appointed from the farm team at ACLU will share her wisdom regarding the pitfalls of ideological rigidity and partisanship.

On the flip side, Gupta's selection indicates an appreciation by the Administration of the link between civil rights and the justice system that isn't always obvious from the DOJ's day-to-day stances and court pleadings. Perhaps, if the fates are on her side, she'll be given enough leash at DOJ to actually accomplish something in what, for litigators, is really a short span of time. And who knows? I suppose if Hillary is elected in 2016 she might be invited to keep the gig.

Certainly I wish Vanita luck and endorse her unequivocally as far as her qualifications for the job, even if part of me wishes the Senate would shoot her nomination down just so she can continue her current good work.

FBI director disingenuous or ignorant to criticize smartphone encryption

FBI chief James Comey criticized Apple and Google this week for new encryption added to their latest smartphone product offerings, declaring “he could not understand why companies would 'market something expressly to allow people to place themselves beyond the law.'”

That statement is either a) utterly disingenuous or b) so ignorant and wrong-headed that it calls into question the man's competence to perform his job.

Apple and Google aren't trying to thwart cops. Cops are exploiting security flaws that leave consumers open to identity theft, stalking and other third-party access to their data. And Director Comey would prefer to put consumers' data and finances at risk than make his agents work a little harder to prove their cases.

Bruce Schneier summed up the conundrum thusly in a recent post: "We have one infrastructure. We can't choose a world where the US gets to spy and the Chinese don't. We get to choose a world where everyone can spy, or a world where no one can spy. We can be secure from everyone, or vulnerable to anyone. And I'm tired of us choosing surveillance over security."

Today, smart phones are increasingly used directly for commerce; e.g., you can pay for your coffee at Starbucks with a smartphone app. And many people have data on their phones they need to secure for reasons that have nothing to do with law enforcement - e.g., an attorney with confidential client information, a doctor accessing personal medical data, or a defense contractor worried about cyber-sleuthing by the Chinese.

You'd think the FBI director would applaud these companies for making personal information more secure from hackers and thieves. That he's adopted this stance instead makes me think Mr. Comey cares less about the public's security than preserving his own agency's power, and that we probably need a different FBI director.

Feds force cops to mislead re: fake cell phone towers

The Washington Post published a remarkable and disturbing story (Sept. 23) revealing that not just the Harris Corporation but the FBI required local police using IMSI catchers (or "stingrays") to monitor cell phone traffic to sign non-disclosure agreements (NDAs) about their use. The article opened:

The FBI requires state and local police to keep quiet about the capabilities of a controversial type of surveillance gear that allows law enforcement to eavesdrop on cellphone calls and track individual people based on the signals emitted by their mobile devices, according to a bureau document released recently under a Freedom of Information Act request.

The December 2012 document is a heavily redacted letter between the FBI and police in Tacoma, Wash., as the local department sought to acquire an IMSI catcher, sometimes described as a “fake cellphone tower” because it tricks individual phones into routing their calls and other data through the surveillance equipment. The Tacoma police were buying gear produced by Harris Corp., a Florida-based company that makes the StingRay and other IMSI catchers used by law enforcement agencies across the country.

The FBI letter, which was not classified but was designated as "law enforcement sensitive," told the Tacoma police chief that the Federal Communications Commission authorizes the sale of such surveillance equipment to state and local police departments on the condition that they first sign an FBI “non-disclosure agreement.”

The details of the agreement are redacted from the letter as released; the blacked-out portions stretch across the bulk of a six-page document, which was first published on Monday by MuckRock, a news site that helps journalists, researchers and others submit Freedom of Information Act requests and publishes the results.

It had earlier been reported that the manufacturer of the device, the Harris Corporation, required its customers to sign nondisclosure agreements. But now we discover the feds have one, too - one that's apparently required by the FCC according to the letter Muckrock uncovered, though apparently not in its public rules. The Associated Press had written earlier (June 12) about the feds' attempts to conceal information about stingray use by local police, including a detail that foreshadowed this recent news:

Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement "coordinate with the FBI the acquisition and use of the equipment." Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies.

A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. "As a government contractor, our solutions are regulated and their use is restricted," spokesman Jim Burke said.

To judge from that account, the NDA requirement stems from an "authorization agreement" with the FCC rather than a formal public rule. (A report from the Daily Caller alleged that the Harris Corporation misled the FCC, claiming the tech would only be used in "emergency situations" as opposed to routine investigations.) But the document discovered by Muckrock is the first we've learned of NDAs between the police and the FBI. It seemed grotesque when it was thought the Harris Corp. was requiring the NDAs. Now we know that the Department of Justice is not just complicit in that deceit but a formal party to the contract. And the FCC, instead of requiring phone companies to fix security vulnerabilities, are licensing private companies to exploit them for profit.

Indeed, it appears federal agencies actively encouraged local law enforcement to lie when they find evidence using the technology, claiming the information came from an informant. Again from the Post:

E-mails collected through a separate Freedom of Information Act request, by the ACLU, showed in June that the U.S. Marshals Service had asked police in Florida to not reveal that they had used IMSI catchers in determining the locations of criminal suspects. Instead, the police were instructed to say that they had learned the whereabouts of suspects using “a confidential source.”

Has the US Marshals Service never heard of Brady v. Maryland?

I wonder, given passage of the Michael Morton Act, with its pro-active requirement to disclose inculpatory as well as exculpatory evidence, whether Texas police are following the feds' advice and lying in official documents when they use these devices?  One would hope not, but then one would also hope the cops would have better sense than to sign a non-disclosure agreement that contradicts with state open records law. (We know the Fort Worth and Houston PDs own IMSI catchers, and probably DPS: Likely other agencies in Texas own them, too.)

Either way, it's no wonder there hasn't been a wider public outcry about the use of such spy tech without warrants nor public disclosure: The government has gone to tremendous lengths to conceal these activities.

US Attorney in DC to create conviction integrity unit

It's always nice to see good ideas spreading. The US Attorney in Washington, D.C. is creating a conviction integrity unit modeled on Dallas DA Craig Watkins successes in Dallas and a similar unit in New York. Reported MyFoxDC (Sept. 11):

U.S. Attorney Ron Machen has decided to take a bold step in creating a unit that will investigate cases his prosecutors have already taken to court. Cases in which troubling questions may emerge post-conviction like the discovery of DNA, a bad witness or even a false confession.

Over the last four years, the U.S. Attorney's Office has investigated more than a hundred cases in which hair and fiber analysis played a role in convictions.

Five men had their cases thrown out when the evidence used against them turned out to be false. The latest being Kevin Martin, who served time for a murder he did not commit.

"Anytime that happens, it's a prosecutor's worst nightmare,” said Machen in an interview Thursday. “Our job, our mission is to punish the guilty, but protect the innocent, and if innocent individuals have been wrongly convicted, it's our job to do the right thing.”

So the District's top prosecutor has designed a unit that will be staffed with a veteran assistant U.S. attorney, who along with defense attorneys, will look at cases that have developed troubling questions after defendants have been found guilty.

FBI accused of dragging feet on hair and fiber review; Texas plugging along

As the Forensic Science Commission this week in Fort Worth discussed Texas' nascent review of convictions involving possibly erroneous hair-and-fiber testimony, the FBI drew fire for dragging its heels on similar reviews at the national level, especially in death penalty cases, allowing three inmates including one in Texas to be executed without coming forward to say testimony in their cases was flawed. See the recent 146-page report (pdf) from a DoJ Inspector General at the center of the recent controversy.

New Scientist mentioned that New York and North Carolina have also launched state-level reviews and that, "of the 10 per cent of cases reviewed so far, the 'vast majority' contained errors. As a result, 136 defendants, including two on death row, will receive letters informing them of their right to DNA testing as a means of proving their innocence. This is in addition to 23 letters that went out last year, including to 14 people on death row." The magazine reminds us that:

hair analysis is just one of many forensic disciplines that hinge on using a microscope to visually compare two samples and declare a match. Ballistics, fibre analysis, tyre and shoeprint comparison and tool and bite-mark analysis all take a similar approach. All came under heavy criticism in a landmark report on the state of forensic science published in 2009.

"This review is likely to have an effect on any discipline where they didn't have a statistical reference to estimate the chances of another person being a match," [national Innocence Project cofounder Peter] Neufeld says. He believes it could even filter across to disciplines with a more robust statistical basis such as fingerprinting, but which have been exposed as flawed in recent years.

Few states following Texas to defy prison-rape regs

Emily DePrang at the Texas Observer recently had a story ("Rick Perry fails to get many governors to defy prison rape law," May 30) about Rick Perry's limited influence among his fellow governors. In a letter to US Attorney General Eric Holder, he'd vowed to to rally other governors to join him in opposing implementation of the Prison Rape Elimination Act. Four other states have also said they won't follow PREA, reported AP: Idaho, Indiana, Utah and Arizona. (NPR had a good national overview this week of how states are responding to PREA.)

Noting that the governor is not responsible for certifying facilities which aren't under his operational control, and that it's "not true" that “governors must certify their state’s compliance 'under threat of criminal penalties,'” DePrang had a sense, as I did, that, "The further you get into the letter’s nitty-gritty, the stranger Perry’s defiance seems." Part of the reason I've followed this story so closely (besides the fact that this blog broke it), is that there's something I don't understand going on, some unknown adviser, perhaps, who has influenced the governor. While regrettable, I tend to think non-compliance with PREA will eventually take care of itself at the federal courthouse. It's the inexplicable backstory to Perry's decision that keeps nagging at me.

MORE: From Off the Kuff.

See related Grits posts:

• PREA deadline passes: Perry tells Holder Texas won't comply
• More on Texas' PREA compliance
• Potential civil liability for failing to comply with Prison Rape Elimination Act
• Radio news questions Perry PREA stance in light of consultant's report
• Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'
• Who is advising Rick Perry on prison rape?
• Perry: Texas won't comply with federal Prison Rape Elimination Act

PREA deadline passes: Perry tells Holder Texas won't comply

Yesterday was Texas' deadline to provide assurances to the US Department of Justice that it would comply with the federal Prison Rape Elimination Act. Today, Gov. Perry sent this letter to US Attorney General Eric Holder restating his earlier declaration that Texas would not accede to new federal rules. His latest missive had a much less defiant tone than the first one, but reiterated the state's refusal to fully enact PREA standards. Wrote Perry:

No one disputes PREA's good intentions, but the standards as currently written do not adequately allow for differences among states' juvenile laws, impose substantial financial burdens on communities and set unrealistic compliance dates, Texas has shared our successes and challenges with your office and has sought assistance in our efforts to seek compliance. Unfortunately, our legitimate concerns regarding the unfeasible standards on cross-gender viewing, youthful offenders and staffing ratios have not been properly addressed by DOJ.

Some of this still strikes me as odd because correspondence between TDCJ and a consultant hired to advise the state on PREA compliance did not include any concern that the agency "would be forced to deny female officers job assignments and promotion opportunities," as the letter suggests. Hard to tell where that's coming from. I don't think it's true.

A more legitimate concern stems from the conflict created by Texas' outlier status of classifying 17 year olds as adult offenders under criminal law (we're one of only 10 states that does so). Perry's letter acknowledges that the simplest solution may be to change the age of adult criminal culpability, but notes that the earliest that could happen is next year:

In addition, PREA defines youthful offenders as those under the age of 18 and maintains that offenders be separated from the adult inmate population, The federal Juvenile Justice and Delinquency Prevention Act (JJDP Act) also requires that juvenile inmates be separated from adult inmates, but defines adult inmates as those who have reached the age of full criminal responsibility under applicable state law, which in Texas is 17. This creates a conflict that would require Texas to either violate the JJDP Act by placing adult 17-year-old offenders in juvenile facilities or violate PREA by keeping 17-year-old adult offenders with other adult offenders aged 18 or older. This could require the construction of new correctional facilities or the extensive modification of existing facilities in order to house only offenders who are 17 years old, An alternative solution would be changing Texas law to change the definition of full age of responsibility to 18. But since our legislature meets only in odd numbered years, the soonest Texas could possibly meet this requirement would be in 2015 and only then if the Texas Legislature changes the law.

Of course, that's not entirely accurate since the Texas governor has authority to call the Legislature into a special session whenever he wants to address any specific issue he chooses. But as a practical matter, he's probably right that the best solution would be for the Lege in 2015 to raise the age of responsibility to 18 to match federal law. That would resolve quite a few situations where that conflict causes problems, not just regarding PREA compliance. The Speaker of the House issued an "interim charge" to the House Criminal Jurisprudence Committee to study that proposal, and this is another strong argument for making the switch.

Perry also lamented that, "the cost to implement the mandated staffing ratios within juvenile facilities would be unsustainable for many counties with limited operating budgets. Appropriate staffing ratios should be determined by each state based on recommendations from professionals with operational knowledge." But this, too, strikes me as a strange complaint. For starters, the juvenile staffing ratios under PREA that Perry's concerned about (requiring one JCO per 8 youth instead of 12) don't go into effect until 2017. More to the point, local juvenile detention facilities in Texas are not "under executive control" and Perry is not required to certify their compliance. While local facilities may be subject to Sec. 1983 civil rights litigation if they do not comply, that's true whether Perry certifies the state's PREA compliance or not.

Bottom line: Texas will lose some grant money because of Perry's recalcitrance, though his gubernatorial successor will be the one affected, not him. And in the medium to long run, non-compliant state and local facilities may find themselves dealing with these issues in federal civil rights litigation. At that point, the costs of obeying PREA on the front end may, in retrospect, look like a bargain.

See related Grits posts:

• More on Texas' PREA compliance
• Potential civil liability for failing to comply with Prison Rape Elimination Act
• Radio news questions Perry PREA stance in light of consultant's report
• Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'
• Who is advising Rick Perry on prison rape?
• Perry: Texas won't comply with federal Prison Rape Elimination Act

New DOJ homicide stats: Murders at 50-year low; blacks 6x more likely to be victims; mass shootings rare

Check out these highlights and lowlights from the new DOJ Bureau of Justice Statistics report, Homicides in the U.S. Known to Law Enforcement, 2011:

• The U.S. homicide rate declined by nearly half (49%), from 9.3 homicides per 100,000 U.S. residents in 1992 to 4.7 in 2011, falling to the lowest level since 1963. From 2002 to 2011, the average homicide rate for males was 3.6 times higher than the rate for females. The average homicide rate for blacks was 6.3 times higher than the rate for whites.
• From 2002 to 2011, young adults ages 18 to 24 had the highest homicide rate of any age group and experienced the greatest rate decline (down 22%) over the 10-year period, from 15.2 per 100,000 in 2002 to 11.9 in 2011.
• The rate of homicides involving a firearm decreased by 49% from 1992 to 2011, while the percentage of homicide victims killed by a firearm (67%) remained stable.
• Large cities of 100,000 or more residents experienced the largest decline (23%) in homicide rates from 2002 to 2011, compared to communities with less than 100,000 residents.
• From 2002 to 2011, the majority (95%) of homicide incidents involved a single victim. In 2011, 66% of homicides with a single victim involved a firearm, compared to 79% of homicide incidents with multiple victims.

Not only was the 4.7 per 100K homicide rate in 2011 the lowest since 1963, it was "54% below its peak of 10.2 per 100,000 persons in 1980." Further, despite all the publicity surrounding high-profile mass shootings, "Since 2002, the percentage of homicide incidents involving two or more victims has remained relatively stable." According to the report, "In 2011, about 110 homicide incidents involved three victims, or less than 1% of all homicides that year. Homicide incidents involving four or more victims were even less frequent. In 2011, of an estimated 13,750 reported homicide incidents, about 25 involved four or more victims."

Prostitution/law enforcement follies

A couple of stories about law enforcement in Texas allegedly protecting prostitution lately caught Grits eye:

First, a major prostitution bust in San Antonio in 2007 "fizzled amid allegations from some who alleged the FBI interfered with the SAPD probe, and that [the main target Samuel] Flores was protected because he cooperated with the FBI on unrelated investigations," the SA Express-News' Guillermo Contreras reported last week. Mr. Flores "was nabbed [last] week in Austin on an indictment alleging he was dealing methamphetamine in San Antonio. He was denied bond during a hearing in Austin on Thursday, and ordered transferred to San Antonio for trial. "

Wrote Contreras, "The FBI and U.S. attorney's office denied the allegations, but nonetheless, the matter bruised feelings between the FBI and SAPD and resulted in an internal affairs investigation by the FBI's Office of Professional Responsibility," the results of which were never released.

Meanwhile, in Dallas vice squad Detective Jose Luis Bedoy has been indicted on federal charges for tipping off a prostitute with whom he was engaged in intimate relations about upcoming Dallas PD stings, giving her tips on how to avoid arrest, Tanya Eiserer at the Dallas News reported. “Authorities allege that the relationship lasted for years and during the entire time Bedoy provided 'law enforcement-sensitive information to her about DPD Vice Unit prostitution raids and other enforcement actions.'”

Both stories hint at larger, big-picture issues. The latter reminds me of a study out of Chicago that found 3% of tricks by prostitutes operating without pimps were "freebies given to police" in exchange for protection. The former reminds us of the pitfalls of police reliance on criminals as confidential informants, who frequently go on to commit as many crimes as they help police solve, but under the de facto protection of law enforcement.

In an era when HBO has turned a legal Nevada brothel into a popular reality TV series, Grits has to wonder whether, when it comes to keeping the "oldest profession" illegal, the juice really is worth the squeeze. Many of the worst negative consequences - including human trafficking, exploitation by pimps, and law enforcement corruption - primarily result from delivering services through a black market.

On the differences between DOJ and TDCJ prison population totals for Texas, and the Next Big Task

It turned out a number of national-level advocates were interested in a question raised as a footnote in a post titled, "If Texas' justice reforms were so great, why does the state still have the nation's largest prison system?" When you ask TDCJ how many people are incarcerated in prisons and state jails, they'point you to the 2012 Statistical Report (pdf) which informs us that there were 152,303 prisoners in Texas prisons, state jails and SAFP treatment facilities as of Aug. 31, 2012. According to the Bureau of Justice Statistics, though, Texas had 166,372 state prisoners in 2012, or 14,069 more than TDCJ's oft-quoted numbers.

Looking at TDCJ's figures regarding who is in Texas prisons and state jails, the prison population dropped by several thousand in recent years, enough to close three prison units over the last two sessions and leave enough extra beds to consider closing a fourth. But throughout this period, the BJS reporting on Texas incarceration levels remained stubbornly high, only falling finally in this most recent 2012 report.

"Which is right?" several people have asked me, including from a couple of different national groups. Having now looked into it more than I really cared to and crunching a few numbers, IMO, "Both," is the correct answer. The question boils down to the definitions underlying the two numbers. When Marc Levin, Jerry Madden or Grits cite numbers in the 150,000s for Texas' prison population, what we're quoting are TDCJ reports on the number of people actually, presently incarcerated in one of Texas' 109 prisons and state jails. Secure probation and parole facilities are reported in the same document but broken out separately. County jail data are reported to the Texas Commission on Jail Standards which publishes monthly reports.*

The federal number, though, is attempting to get to an apples-to-apples number they can apply across states. They count prisoners based on their legal status at the time of custody, not whether they've formally entered the prison system or not. Instead, the BJS report says in a footnote that, "Jurisdiction refers to the legal authority of state or federal correctional officials over a prisoner, regardless of where the prisoner is held" (emphasis added.).

Looking at Texas' data in that light, there are two main categories of prisoners in secure lockups who are formally state prisoners but not counted in TDCJ's incarceration totals: State prisoners in county jails and parolees in treatment facilities or Intermediate Sanction Facilities but who have not had their supervision formally revoked.

So, let's look at those numbers. The reporting dates won't be apples-to-apples, but close. As of Aug. 31, 2013, here are the statewide totals, by my count, of state prisoners in county jails:

• Convicted felons in jail awaiting transfer: 4,769
• Convicted state jail felons awaiting transfer: 1,186
• Parole violators (technical): 2,170
• Parole violators (new crime): 2,810
• Convicted SJF, sentenced to county jail time: 823
• Total: 11,762, or 17.5% of Texas' 67, 096 county jail prisoners

Now, let's look at TDCJ's most recent statistical report, which provided numbers as of Aug. 31, 2012 (the new one is due out soon). Here are the categories Grits identified as fitting the BJS definition:

• Intermediate Sanctions Facilities: 1,831
• Parolees in SAFP treatment programs: 318
• Total: 2,149

Adding those to the county jail numbers, one gets 13,111. The difference between the DOJ's number and TDCJ's for 2012 was 14,069. So that explains most of the difference and the rest may be accounted for by the disjointed dates and/or some other small category of state prisoners BJS counted that I didn't spot with a cursory glance.

Bottom line: Marc Levin is right that there are fewer people locked up in Texas prisons and state jails. And I suspect even he would acknowledge that the greater credit for those reductions goes to the parole board than the 2007 probation reforms. Rissie Owens and Co. have inched up parole rates by a few points and it made a huge difference. Meanwhile, some of the national advocates (even if motivated perhaps in part by jealousy - same reason everybody loves to hate the Dallas Cowboys!), have just cause to scoff at claims of de-incarceraton based on federal data. For that matter, even using TDCJ's lower number, we still have more people incarcerated in Texas than California did even before its recent court-ordered reduction.

Texas has done most of what it can on the supervision side to reduce revocations. (Probation revocation rates remain stubbornly high but have improved greatly for parole.) The next step for Texas has to be actual sentencing reform, adjusting penalty categories for nonviolent drug and property offenders to make room for violent prisoners being held on extremely long sentences.

That's the biggest reason why the Texas Legislature balked at doing more for the last three sessions following the 2007 probation reforms. The obvious, next steps they need to do are really hard and small-government conservatives, especially after Jerry Madden's departure from the House, have been unable to muster the political capital necessary to get the job done. IMO the votes are there on the House side in particular to support pretty significant reforms if the leadership would ever let the bills get to the floor. The House Calendars Committee has become a graveyard for reform legislation, with Speaker Joe Straus, like his predecessor Tom Craddick, largely shielding the membership from voting on most of the promising bills that get out of committee.

For example, by my count there have been sufficient votes on the floor of the Texas House to pass a bill reducing low-level marijuana possession from a Class B to a Class C ticket-only offense ever since the House Criminal Jurisprudence Committee first unanimously voted such a bill out of committee in 2005. This year that committee passed a bill lowering penalties for defendants under 21, which also stalled in Calendars. Under both Speakers Cradddick and Straus, the Calendars Committee has consistently refused to let such legislation onto the floor. In retrospect it was a miracle (spurred by pragmatism: they couldn't afford to build new prisons) that the 2007 probation reforms ever got a vote.

FWIW, my sense is that Texas' prison population will go a little lower, still, on its current trajectory, so long as the parole board's approval rates don't decline again. I suspect we can even close one or two more prisons. But even with the pleasing contribution of a continued falling crime rate, Texas' too-high sentencing categories for the most common nonviolent offenses must change before state government's incarceration footprint can be reduced very much further. That's the next, big task.

* Note to the Texas Commission on Jail Standards: Please put your old monthly reports online in an archive!!

Federal hair microscopy review should be replicated at state level

At last week's Texas Forensic Science Commission Roundtable (an event co-sponsored by the Court of Criminal Appeals' Criminal Justice Integrity Unit), presenter Norman Reimer from the National Association of Criminal Defense Lawyers offered a preliminary discussion of a project publicly announced today - a joint review between the US Justice Department, the national Innocence Project out of New York, and the NACDL of cases where potentially flawed microscopic hair analysis may have been introduced as evidence and produced false convictions. According to Reimer, out of 310 DNA exonerations nationally, 72 of them (23%) included faulty microscopic hair analysis, often layered on top of other flawed evidence as corroboration. I'd not seen that figure, but it's repeated in the press release below. That would make hair microscopy perhaps the most significant source of forensic science error in DNA exoneration cases. You can imagine that, layered on top of a mistaken eyewitness, such forensic corroboration could be very powerful testimony.

Unfortunately, this partnership will only review cases prosecuted in the federal system. However, there are many technicians at the state and local levels, most if not all of whom were taught by the same trainers as the FBI, said Reimer - whose cases won't be included in the federal review. Indeed, so far the working group doesn't even have a list of state and local technicians who the FBI trained on microscopic hair analysis. Once those names are available - and please, somebody involved in that project let's make that happen! - then states can begin conducting their own reviews of flawed testimony in state-level criminal cases, which are likely far more numerous and may have continued to be used in cases beyond the year 2000 when DOJ abandoned the technique in favor of DNA analysis.

Perhaps the Forensic Science Commission needs a formal complaint to stick its nose into this business, though arguably the bill that just passed expanding their jurisdiction (SB 1238 by Hinojosa) would allow them to investigate of their own accord after September 1st. Either way, the federal review won't get to cases in state district court and the FSC seems uniquely positioned to launch a parallel review of hair microscopy in state-level cases.

MORE: From the Washington Post, "the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases." AND MORE: From the Wall Street Journal.

Find the full text of a press release announcing the federal review below the jump: