Parole board now Joe Bryan's only hope after TX CCA's shameful rejection of his habeas writ

The Texas Court of Criminal Appeals' rejection of Joe Bryan's habeas corpus writ may rank as its most embarrassing moment since the 1990s when they refused to recognize DNA evidence exonerating Roy Criner. That episode spurred the Legislature to intervene in 2001 to create a vehicle for DNA exonerations. Will their arrogant, unexplained rejection of Bryan's claims earn a similar backlash?

Bryan's case rose to national prominence after two key events: 1) in 2018, the Texas Forensic Science Commission used it to identify flaws in the overstated way blood-spatter evidence is presented to juries, and 2) Pamela Colloff, an already legendary journalist who cut her teeth covering Texas innocence cases, authored a 22,000 word, two-part cover story for the New York Times Magazine elaborating problems with Bryan's case in overwhelming detail.*

Indeed, Bryan's false conviction has become an important case study used to demonstrate problems with past investigative methods. Reported the New York Times:

Lynn Robitaille Garcia, the general counsel of the Texas Forensic Science Commission, said Mr. Bryan’s case had a significant role in inspiring the state to develop a new licensing program for analysts doing crime scene reconstruction. 

“Everyone now recognizes that was unsupportable work, including the expert himself,” she said in an interview Thursday.

This is an example of the Government Always Wins faction on the CCA exercising raw power to assert their own opinion about the best outcome over the rule of law without fear of significant consequence.

Bryan was in Austin when his wife was murdered 120 miles away in Bosque County in 1985, and the flawed forensic testimony used to accuse him at trial has been recanted as junk science. Had they considered the details, it would have been as obvious to the CCA as it was to New York Times Magazine readers that, without that forensic evidence, Bryan could never have been convicted. So any honest evaluation of the evidence would require they grant him relief.

That left only one option for judges in the court's Government-Always-Wins faction if they wanted the case to stand: Reject Bryan's claim without explaining why. And that's exactly what they did.

“It’s disgusting, really,” said a forensic scientist quoted by the Times. “Judges are not in positions to be arbiters of what’s good science.”

Now that the Court of Criminal Appeals has once again shown its colors, the 80-year-old Bryan's only hope of relief is the Board of Pardons and Paroles. He is up for consideration in April, according to TDCJ's website. In 2019, they rejected his parole, despite an exemplary behavioral record in prison, based on the "nature of the offense." But with credible evidence available that Bryan never committed the offense in the first place, combined with his advancing age and the length of time already served, the parole board should finally release Joe Bryan in the interests of justice.

Bryan's attorneys have requested folks write letters to the parole board in support of his release, hoping to get as many letters as possible by the first week in February. On Facebook, they wrote:

We need the parole board flooded with letters of support on Joe's behalf. You can either e-mail one or send a written letter to the options below: 

E-mail: paroleforjoe@gmail.com
Mailing Address: Place Law Office
109 S 7th St., Gatesville, TX 76528 

Address your letters to the Board of Pardons and Paroles and please send them by the first week of February!

Bryan's TDCJ number is 00419509; be sure to include it in your correspondence. Alternatively, you can send support letters directly to the parole board. It wouldn't hurt to let the Governor know your opinion, either.

Grits readers, please do this. Y'all know better than most Texans what an embarrassment our Court of Criminal Appeals has been over the years. Don't let their un-elaborated rejection be the final chapter in Joe Bryan's story.

* Grits interviewed Colloff about the case after her article came out.

Oklahoma! (does #cjreform); HPD raid response doesn't address phony informant; why do probationers die at high rates? And other stories

Here are a few browser clearing odds and ends:

One out of 8 Travis County jail bookings in 2018 was for Class C misdemeanors
In Travis County last year, more than 5,000 people were arrested for a Class-C misdemeanor only - about one out of every eight people booked into the county jail. Between the Freedom Cities ordinance restricting Class C arrests, beginning in January, and the elimination in June of the local no-sit-no-lie ordinance aimed at the homeless, those bookings should decline significantly for 2019.

Post-raid HPD reforms don't address faked informant that got 4 officers shot and killed 2 innocent people
After a no-knock drug raid in Houston this spring killed two innocent people and left four officers shot, HPD Chief Art Acevedo has announced he's creating a special division of the narcotics unit to execute search warrants in drug cases. But as I told the Houston Chronicle:

“His reform is not on point to what caused the problem,” said Scott Henson, policy director with the criminal justice reform nonprofit Just Liberty. “It’s not solving the problem that your investigators are relying on fabricated informants — [it] wasn’t a function of who’s doing the raid, but why you’re doing the raid, and the reliance on this informant, who it turns out didn’t exist. That’s what caused everybody to get shot. It just elides the core issue of what really happened.”

Attacking junk blood-spatter evidence
Check out an amicus brief arguing to disallow blood-spatter evidence in the Joe Bryan murder case that was the subject of Pam Colloff's massive NY Times Magazine/Pro Publica feature. In it, Duke law-school faculty and students argue that, based on current standards, the blood-spatter expert in Bryan's case could not today testify to the main points used to convict him.

Not so natural after all
His death in the Victoria County Jail was attributed to "natural causes." It turns out, he was denied his methadone prescription and died from preventable withdrawal symptoms. Read the excellent Victoria Advocate account from Kali Venable. See also the Advocate editorial board's condemnation of using jails and prisons to treat addiction.

"Power concedes nothing without a demand ..."
"... it never has, and it never will," said Frederick Douglass. So Grits doesn't feel too bad that elected officials in Austin consider criminal-justice reformers excessively pushy, as several implied in this Austin Statesman article about a string of successful, capital-city #cjreform campaigns. Nobody was going to do any of those things if reformers said "Pretty please" and then waited politely for a response.

Own it!
Gov. Greg Abbott's intervention into Austin's homelessness crisis means he now owns the issue. If it isn't solved, it's his fault. Not sure that was the wisest political choice, but it's the one he made. MORE: Now the governor "owns" his own homeless encampment, with neither a budget line item nor any apparent exit plan besides providing still hypothetical services to Austin's homeless ad infinitum. That'll teach 'em! 

Why do probationers die at high rates?
Here's a possible, future, Suspicious Mysteries segment for the Reasonably Suspicious podcast: Grits has long been aware of research showing incarceration in prison reduces life expectancy. But a new study shows that being on probation is associated with a much higher morbidity rate than being in prison or jail, much less in the free world. I don't know how to parse these competing claims. One one hand, while prison healthcare isn't great, being in prison makes it easier to treat chronic conditions because the patient is always available and can't easily decline treatment. On the other, prison can make you sick; e.g., people who contract Hep C in prison  may suffer liver failure later, once they're out. Meanwhile, to the extent criminal laws in general target the poor, the developmentally disabled, substance abusers, the mentally ill, minority communities subject to discrimination, etc., it's not surprising probationers would be an especially sick lot. Or maybe the difference is that people in prison aren't at risk of dying from car crashes! Who knows? Grits would like to better understand this nexus of corrections, health, and morbidity rates. I haven't yet wrapped my head around it. When people die in prison or jail, there is an independent investigation; no one investigates when probationers die, so outside of the above-linked study, we don't have very much information at all regarding why that is.

The Probation Trap
Probation as an institution changes its form and purpose depending on the angle from which one looks at it. Viewed one way, it diverts people from prison. Viewed another, it's a net-widening trap. The Philadelphia Inquirer has published an excellent series expounding the latter view. Via SL&P.

Oklahoma!
As much as it pains me to say so, Oklahoma has now definitely out-paced Texas as the red-state poster child for criminal-justice reform. Also via SL&P:

• Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"
• US News, "Oklahoma Focuses on Criminal Justice Reform"
• Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

On the ground, #cjreform is not really a red-state-blue-state issue.

When smelling pot is pretext for a search
In Philadelphia, police officers who said they searched a car because they smelled marijuana were extremely unlikely to find any and disproportionately searched black people. When the data was gathered, public defenders argued that "the odor of marijuana [should] no longer be considered probable cause for officers to believe a crime has occurred and conduct a search."

Breathalyzer tests as junk science
The New York Times took a trip down the rabbit hole of DWI breath-test forensics. Like DNA mixture software, analysts treat breathalyzers as a magical black box they simply assume supplies reliable results. The problems, however, have been long known.

'Five facts about crime in the U.S.'
Read this from the Pew Research Center.

Interview: ProPublica reporter Pam Colloff on the Joe Bryan case, blood-spatter evidence, resistance to change in forensic science fields, the best #cjreform podcasts, and the effects of a changing media environment on crime coverage

At a dramatic hearing yesterday on his habeas corpus writ in Comanche, TX, a small town near Brownwood, all of the evidence accusing former high-school principal Joe Bryan fell apart, including blood-spatter evidence which even the original analyst would no long stand behind. Ace ProPublica reporter Pam Colloff gave the details in a followup to her massive, long-form story on the case, which was published in the New York Times Magazine back in May.

As it turns out, Joe Bryan was almost certainly innocent and has been unjustly incarcerated for more than 32 years. Most of the blood spatter on the flashlight turned out not to be blood, and what blood was present could be linked neither to Bryan nor his wife, Mickey, the victim. Underwear that the prosecution told a jury contained semen did not. By the time the hearing was over, virtually nothing was left of the prosecution's case, reported Colloff.

With this news, and the renewed attention on Colloff's blood-spatter reporting, Grits thought it would be a good time to stop procrastinating and put out the full interview I did with Colloff over the summer. An excerpt was included in our August podcast, but here's our full conversation. We talked about the Bryan case, blood-spatter analysis (including the training course she took to conduct it), the state of forensics generally, her favorite criminal-justice podcasts, and changes in the media landscape affecting criminal-justice coverage. The whole thing runs about 40 minutes, you can listen to it here:

Find a transcript of our conversation below the jump. You can subscribe via iTunes or GooglePlay.

Credit to Dallas DA on #RoyOliver conviction, TDCJ's phony AC cost estimates, majority of Llano PD under indictment, and other stories

Here are a few odds and ends that merit Grits readers' attention this morning:

Dallas DA deserves credit on Roy Oliver conviction
Much has been written about the murder conviction of former Balch Springs police officer Roy Oliver for killing 15-year old Jordan Edwards, but here are a couple of things I've not seen emphasized. First, this is the second officer in Dallas County convicted of murder in the last year; Ken Johnson from the Farmers Branch PD received a 10-year sentence in January for killing 16-year old Jose Cruz. Further, the Texas Observer pointed out that a third officer from Dallas PD, Christopher Hess, was indicted in June on aggravated assault as a result of shooting into a fleeing vehicle. All that's a credit to Dallas County District Attorney Faith Johnson, who personally made the closing arguments in Roy Oliver's case. She may be a Republican in a mostly Democratic county, but none of our big-city Dem DAs have been as aggressive when police shoot unarmed kids. Grits also found it significant that Gov. Abbott, who appointed Johnson, on his personal Twitter account weighed in to declare, "White Texas police officer found guilty of murder for fatally shooting black teen in car. This life should never have been lost." Both the framing of the incident in terms of race and the implied criticism of police in the episode are unusual, to say the least, for this governor, even if the comments seem appropriate and moderate to this writer.

Majority of Llano PD under indictment.
A majority of the Llano Police Department (five of nine), including the police chief, has been indicted, according to published media reports.

Hard to believe TDCJ when they make self-interested claims
When TDCJ was arguing before the federal courts against having to require air conditioning in the Wallace Pack Unit, they claimed it would be unreasonably expensive, estimating it would cost more than $20 million. Later, reported the Texas Tribune, "Before settling the lawsuit, the department conducted its own research and the cost dropped to $11 million." At yesterday's House Corrections Committee hearing, however, TDCJ executive director Bryan Collier said the agency now estimates the cost to install air conditioning at $4 million, a more than 80 percent reduction from their original estimate. (Notably, the agency spent more than $7 million fighting the lawsuit!) The agency is rapidly earning a reputation for promoting false, self-interested information, not just to the press and the public but in this case, to the courts.

Bipartisan support for push to change response to 911 mental-health calls
When the the Austin Justice Coalition last year succeeded in convincing the Austin city council to vote against the union contract with the Austin Police Association, it freed up millions of dollars that can now be used to promote other goals. Check out the group's recommendations to the City of Austin for budget changes that would improve public safety. Important highlights include following Dallas' example to pilot sending an interdisciplinary team led by health professionals to respond to mental-health 911 calls instead of patrol officers. In this, AJC stands in agreement with US Sen. John Cornyn, who has endorsed the Dallas project. AJC also recommended funding independent investigation of police officer misconduct and paying for a one-year study process to determine whether the city should make the Austin PD crime lab independent.

Details on Harris County's state-jail diversion court
At the joint House Corrections-Criminal Jurisprudence Committee hearing yesterday, Harris County District Judge Brock Thomas discussed a specialty court they've used to keep from sending as many people for incarceration in state jails. This recent blog post from the National Association of Counties published an interview with Leah Garabedian, Harris County’s Chief Criminal Justice Strategist, discussing those projects, which were funded through a grant from the MacArthur Foundation.

Unfunded maintenance piling up at Texas prisons
Grits had highlighted underfunding of prisoner health services in the Texas Department of Criminal Justice Legislative Appropriations Request, and the Dallas News' Lauren McGaughy detailed unfunded facilities-maintenance costs from the same document. The agency has identified $400 million in maintenance needs, and requested funding for $146 million of that. However, in the current biennium, the Lege appropriated only $40 million for maintenance, and the larger amount was requested in the agency's "exceptional items."

Bail reform goes local
The Fifth Circuit's scaling back of Judge Lee Rosenthal's Harris County bail-reform order may have dampened but definitely has not halted momentum for reform, both locally and statewide. The SA Express News published an extensive editorial supporting reform efforts in Bexar County.

More on blood spatter
After interviewing Pamela Colloff about blood spatter evidence, I was interested to run across this journalistic send-up of blood-spatter forensics published last year in the Springfield News-Leader.

Return of The Wooginator
Congratulations to Amanda Woog, who's moving back to Texas after a stint at the Quattrone Center at Penn Law in order to assume the reins as executive director at the Texas Fair Defense Project. Good luck!

Podcast: Colloff on blood spatter, causes of long lines at DPS license centers, understaffing at rural prisons, and other stories

If you can get past a few bad puns in the intro, I think we've got a good show for you this time on the better-late-than-never August 2018 edition of the Reasonably Suspicious podcast, Just Liberty's monthly discussion of Texas criminal-justice politics and policy.


The segment I've been most looking forward to, of course, was the interview with Pamela Colloff, long-form journalist extraordinaire, who left Texas Monthly last year to write for ProPublica. We discussed her latest New York Times Magazine cover story about an apparent false conviction based on more-than-dubious blood-spatter evidence. (I'll publish my full interview with Colloff over the weekend.) But I was happy with the rest of the show, too. Here's what my co-host Mandy Marzullo, executive director of the Texas Defender Service, are discussing this month:

Top Stories

• Long lines at Texas DPS driver-license centers.
• Texas prison system can't keep rural prisons staffed.

Death and Texas

• Texas' junk-science writ revisiting dubious forensics in capital cases.

Interview:

• Scott Henson interviews Pam Colloff of ProPublica/New York Times Magazine on her latest feature on blood-spatter evidence and more.

The Last Hurrah

• Governor Abbott opposes red-light cameras.
• Healthcare funding beneath 'minimum standards,' say Texas prison docs.
• 5th Circuit scales back Harris bail-reform order.

One minor error I noticed when I was editing this together: I'd said during the Death and Texas segment that DPS licenses forensic hypnotists, when in fact it's the Texas Commission on Law Enforcement.

Find a transcript of the podcast below the jump.

Taking cops off point on mental-health cases, commissary questions, a $7 million-plus AC bill, and more

Let's clear some browser tabs with a roundup of items which merit Grits readers' attention even if I don't have time to construct a full blog post around each of them:

Blood will tell you more
Following Pam Colloff's masterful two-part story on faulty blood-spatter evidence, ProPublica has launched a special newsletter in which she's following up on the articles and providing more context. You can sign up here. Teaser: In the upcoming, August episode of the Reasonably Suspicious podcast, we'll air an interview with Colloff about her story and the state of forensic science in Texas and beyond. Look for that in about three weeks. (You can subscribe to the podcast on iTunes, GooglePlay or SoundCloud so you don't miss it, and until then check out the July episode.)

Cornyn praises promising pilot on mental-health diversion
Grits is excited about the pilot program at Dallas PD praised by US Sen. John Cornyn in this Dallas News article. They're sending out interdisciplinary teams led by mental health workers to respond to 911 calls related to mental health crises, with cops participating as backup and support as opposed to shot callers. Not only are there better outcomes for mentally ill folks, it saved money and resources: Under the program, "of the 709 mental health emergency calls fielded since January, just 3 percent ended in arrest." In fact, "In the first three months of the program, the clinician's diversion of calls saved the police force about two weeks of salaried work."

Police are asked to handle too many social problems and mental health is one of the biggest. For the most part, the issue needs to be taken out of the hands of law enforcement and jailers and re-center the response around healthcare needs and social services, instead.

Commissary Questions
Earlier this year, the Prison Policy Institute (shoutout to their new employee, Texan Jorge Renaud) published a report titled, "The Company Store" about prison commissary economics. Now, they have some specific, commissary-related questions for the Texas prison system, including why Citibank would receive more than $6 million in commissary funds in a year and pertaining to the wisdom of collaborating with certain vendors using dubious financing methods that arguably short-change inmates. Legislators on committees overseeing the prison system may want to dig into this.

A $7 million AC bill and climbing
After spending $7 million on legal fees fighting against providing air conditioning to at-risk prison inmates during the summer, TDCJ is now beginning to do so, reported the Texas Tribune. This raises the questions: How much will TDCJ ask the Lege for air conditioning? How much will the Legislature give them? And will that be enough, or will more litigation ensue? Tune into the 86th Texas Legislature in 2019 to find out!

Marijuana not only issue where TX political parties agree
We've seen media coverage of the fact that both Texas political parties included some form of marijuana reform in their state party platforms last month, with pundits opining that the development makes passage of reform legislation more likely. But nobody in the MSM has discussed other points of agreement in the platforms on either criminal justice or other issues facing the state. On all those issues, the same analysis applies: Bills where both party platforms agree arguably begin the process with a leg up. It doesn't guarantee they'll pass, but it's a potent expression of an issue's potential.

Framing of inmates spurs renewed calls for TDCJ overight
Recent indictments of TDCJ staff who set up inmates in a fake discipline scam have renewed calls for independent oversight at Texas' prison agency, reported the Texas Tribune. Whatever form oversight takes, it's inarguable that having all your watchdogs report to the same board - as TDCJ does - gives an appearance of conflict and almost certainly creates actual ones. The system isn't adequately policing itself.

Four years waiting on trial from no-knock raid shooting
A Killeen man, who thought he was responding to a burglary, shot and killed a police officer when they executed a no-knock raid on his home four years ago and is still awaiting trial, with no denouement in sight. His attorneys have been ready for trial for some time, but the state has yet to press forward, leaving him sitting in jail while he waits. RawStory has a report.

DWI drylabbing allegations
A DPS lab analyst in El Paso, who in the past was caught allegedly falsifying drug weights, cutting and pasting data from other samples, has again been accused of dry labbing, this time failing to conduct tests on 22 DWI samples and cutting and pasting results from other cases. DPS said the error was unintentional, but its quality control reviewer saw the problem and didn't catch it. When samples were retested, the analyst combined good data with bad. She and the technical reviewer who approved her work are no longer with the agency.

Documenting the 'trial penalty'
The National Association of Criminal Defense Lawyers has a new report out on the extent of the "trial penalty" in federal court when defendants refuse to accept a plea deal. In related news, the Washington Post has an item on a juror speaking out against harsh, mandatory federal sentences, and conservative columnist George Will authored a piece on the topic.

'Misdemeanorland'
A new book addresses "Criminal Courts and Social Control in the Age of Broken Windows Policing." Check out a review.