Conservatives 💗 'progressive' prosecutors, risk-assessment deep dive, on the limits of a punitive approach on fines, and other stories

As Grits prepares for a brief hiatus, let's clear some browser tabs and perform a quick roundup of items that merit readers' attention (or which I'd like to look at more closely once I get back):

TDCJ heat deaths magically stopped when litigation started
TDCJ says that only ten people in the prison system were diagnosed with heat stroke or heat exhaustion, or given intravenous fluids for a heat-related illness, during the recent high-temperature spate, and that no one has died of heat-related illnesses since 2012. Both those numbers seem unlikely to me. Rather, it's more probable that TDCJ just stopped labeling deaths as heat-related after litigation began in 2012. Plus, given what they're counting, when heat-related illnesses arise, TDCJ can keep inmates from being counted simply by NOT treating them with IV fluids. These low numbers don't seem credible; another reason we need independent oversight so that causes of death aren't being spun to avoid accountability.

TPPF's lingering hunger for grand-jury reform
The Texas Public Policy Foundation is ramping up to support grand-jury reform in the 86th Legislature, and published this item arguing for allowing grand-jury witnesses to be represented by counsel.

Poll: Public warming to justice reform
A new national poll demonstrates widespread support for the FIRST-STEP prison reform act, which Grits endorsed here, as well as criminal-justice reform, generally. See coverage from The Hill.

Conservatives 💗 'progressive' prosecutors
We've discussed on this blog the memo from Philadelphia DA Larry Krasner detailing what prosecutors can do to scale back mass incarceration. IMO it's one of the most important justice-reform documents in the last decade - as important for operationalizing the critique of mass incarceration as Michelle Alexander's New Jim Crow book was to popularizing it. But we haven't yet discussed the bipartisan appeal of Krasner's message. The American Conservative published an article arguing that Krasner's "objectives dovetail closely with those of conservative and libertarian justice reformers. All share a broader vision of radically reshaping a criminal justice system that is deeply unjust and out of line with American constitutional and moral values."

Deep dive into risk assessment debate in PA
Grits has expressed disagreement with liberal reformers over sweeping criticisms of risk assessment instruments based on alleged racial disparities in some models promoted by private vendors. Based on analyses I've seen, Grits argued that "the maximal harm hypothesized from risk assessments simply doesn't outweigh harms from the status quo of requiring money bail for everyone." So I was interested to see that many of those same national critics got a new risk-assessment regimen in Pennsylvania put off for six months for evaluation based on allegations of racial bias. In particular, links to all the written testimony submitted to their sentencing commission were published online, and I wanted to post the link so I can go through them later.

It's not that I couldn't be convinced that liberal opposition to risk-assessment-based bail reform isn't throwing the baby out with the bathwater. I'm just unconvinced by the arguments I've heard thus far. Too often, such critics fail to acknowledge that the alternative isn't some un-biased utopia but the even-more-biased status quo where judges sentence less harshly after lunch and harbor myriad biases that may just as harmfully infect the system, but with far less transparency than risk assessments. At least risk assessments can (and should) be adjusted and re-validated over time. Perhaps the extensive testimony out of Pennsylvania will cast more light on this emerging debate.

On the limits of a punitive approach on fines
Some of what's happening across many vectors in the justice system today is that we've reached the limits of the tools traditionally used to fight crime that now result in diminishing returns. When penalties were low, raising them perhaps created more deterrent. But once they're high, raising them more can be counter-productive. That's what you're seeing in Chicago, where a move to raise ticket amounts for vehicle-sticker violations backfired. Rather than raise millions in revenue, as projected by the city, it drove thousands of predominantly black Chicagoans into "substantial debt," and caused many "to lose their licenses, lose their cars and even declare bankruptcy," according to an investigation by ProPublica. One can't squeeze blood from a stone.

Just Liberty post-session roundup podcast

Here's the latest Just Liberty podcast - this time reviewing criminal-justice reform legislation from the 85th Texas Legislature - featuring your correspondent and Texas Defender Service Executive Director Amanda Marzullo. Find a transcript of our conversation below the jump.

TPPF: Texas grand juries need more reform

With the pick-a-pal method for selecting grand juries now ended in the Lone Star state, the Texas Public Policy Foundation has a new report out identifying additional problems with grand juries and suggesting reforms which the 85th Texas Legislature could implement when it convenes in January to make them more fair and just.

TPPF recommended creating a right to counsel for certain defendants and witnesses appearing before grand juries, as is the case to greater and lesser extents in 26 other states. For example:

In Colorado, all witnesses have the right to counsel in the grand jury room and will be provided such counsel if they cannot afford it. Attorneys are restricted in a similar manner within the grand jury room as in New York. 

Of those defense attorneys surveyed, 80 percent in New York and 75 percent in Colorado believed their presence in the grand jury room led to fairer questioning. Seventy-six percent of New York defense attorneys and 69 percent of Colorado defense attorneys also believed that the knowledge gained by being present helped them prepare for trial or plea bargaining.  

A majority of prosecutors who were interviewed in both states believed that the practice benefits the administration of justice with one prosecutor stating it “lends an air of legitimacy.” Prosecutors interviewed also stated that defense attorneys rarely interrupt the work of the state and are generally silent observers. They were also “unified” that defense attorneys don’t slow their work.

The same two states both give defendants the right to a grand-jury transcript, which TPPF considered beneficial to the process.

Ninety-two percent of defense attorneys in both states found that the transcripts are helpful in preparing for trial or plea bargaining. The interviews showed that several attorneys agreed the transcripts were beneficial to urge clients who wanted to go to trial, but were then reminded of the finer details of the facts of the case based upon the transcripts. 

Ninety-one percent of defense attorneys in New York and 81 percent in Colorado agreed that transcripts improved the accuracy of future testimony.

TPPF also lamented that, at present, "Texas does not explicitly require prosecutors to disclose exculpatory evidence during grand jury proceedings," urging such a requirement be created.

Finally, the group recommended precluding taking cases to a grand jury multiple times unless prosecutors have discovered new, material evidence against the defendant.

These are significant and timely reforms, I'm glad to see the state's most prominent conservative think tank championing them.

What does an Austin cop have to do to get charged with official oppression? (Hint: More than tazing a confused, supine homeless man)

While it's true that a small percentage of police officers are responsible for a disproportionate amount of misconduct, it's also true that, before video cameras proliferated in the last 10 years or so, such misconduct was both common as dirt and just as commonly ignored. Now, with the rise of dashcams, bodycams, ubiquitous surveillance and personal cell phone cameras, police misconduct can be harder to conceal.

Take the example of Austin PD rookie Ofc. Christopher Van Buren, suspended for his failure to determine the "objective reasonableness," or lack thereof, of force he used against a homeless man sitting on the ground. Van Buren tazed the guy within just a few seconds of getting out of his car and confronting him, because the fellow, who was reclining under a tree, didn't follow orders quickly enough.

The Statesman ran short items when the officer received a 90 day suspension and when a grand jury declined to indict him for anything, and the Chronicle covered his suspension, but neither chose to publish the video. See APD's suspension memorandum, which contains more detail than the news accounts.

The missus asked for and received video of the incident under the Public Information Act and it tells quite a story. Meanwhile, thanks to the generosity of Grits' contributors, I recently acquired some video editing software and have begun teaching myself the basics. So here's another example of what police misconduct looks like in Austin -- harsh enough to warrant a 3-month suspension without pay, but still not, apparently, rising to level of "official oppression." Watch for yourself and judge:

What does qualify as "official oppression" if that does not? If criminal laws don't forbid such an obvious abuse of power, what's the point of having official oppression charges on the books?

Regardless, video is crucial. If this fellow showed up in court without it and alleged this sequence of events had occurred, in the face of two police officers saying otherwise, he might well have been handed additional charges for filing false reports, etc.. But seeing is believing. And it's hard to justify what you see on that video.

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.

Veteran Waco cop 'randomly' chosen foreman of Twin Peaks grand jury

In Waco, District Judge Ralph Strother selected "longtime Waco police officer James Head" to serve as foreman of the grand jury panel that consider the Twin Peaks biker cases.

Supposedly, reported the Houston Chronicle (July 10), "It was McLennan County’s first randomly selected grand jury since legislators eliminated a 'pick-a-pal' system in which judge-appointed commissioners nominated prospective jurors." And it's just random that a veteran cop made the cut the first time out in the highest profile case in the county's history.

Ironically, the new law eliminating Texas pick-a-pal system was created in large part because of the Alfred Brown case in Houston, coverage of which earned Lisa Falkenberg a Pulitzer Prize. A police officer was foreman in that case and it later turned out the grand jury improperly bullied and intimidated Brown's girlfriend into withdrawing her testimony as an alibi witness.

So for the first post-pick-a-pal jury in the county's highest-profile ever case to have a cop foreman beggars belief. The Chronicle quoted state Sen. John Whitmire, who authored the grand  jury reform legislation, blasting the decision:

“It’s exactly those types of circumstances that the new law was meant to do away with,” Whitmire told the San Antonio Express-News on Thursday. “You can’t get that objectivity, in the eyes of the public, if you don’t get that impartial grand jury. You’re starting with a built-in problem, and Waco needs a dose of transparency.”

Even if it's purely random, Judge Strothers should have the sense to bypass Mr. Head and pick somebody else to ensure there's no appearance of impropriety. As things stand, this move reinforces the view that we're witnessing a rigged game in Waco.

MORE: Local lawyers weigh in. AND MORE: From Murray Newman. UPDATE: Via the Houston Chronicle, see a motion filed objecting of Det. Head's participation in the grand jury, which included this old Far Side cartoon characterizing the rigged proceedings:

What next to reform grand juries now that pick-a-pal is no more?

With Texas eliminating its pick-a-pal grand jury system during the 84th legislative session and Alfred Brown walking off of death row a free man following revelations of grand jury misconduct, I asked Amanda Marzullo, Policy Director for the Texas Defender Service, to visit with me about the implications of Texas' new reform and what remains to be done. Listen to the interview below and find the full conversation transcribed below the jump.

Released from death row, 'exoneration' disputed: The Alfred Brown case

The release of Alfred Brown - sentenced to death in 2005 after it was revealed that the Harris County DA's Office withheld key evidence and a corrupt grand jury manipulated an alibi witness - marks the end of an awful saga for one man, and the beginning of a debate about his story's meaning. See coverage from:

• Houston Chronicle
• Houston Chronicle
• Houston Chronicle (Falkenberg)
• Houston Chronicle (editorial)
• Washington Post
• Associated Press

Press accounts pinned the proximate cause of Brown's release on a Brady violation (the state withholding exculpatory evidence), in particular phone records which corroborated his alibi. According to the Houston Chronicle:

Texas' highest criminal court on Wednesday threw out the 2005 conviction and death sentence of Alfred Dewayne Brown after finding that the Harris County District Attorney's Office withheld material evidence favorable to Brown's case.

In a brief order, the Texas Court of Criminal Appeals sent the case back to the lower court for a new trial.

It's especially poignant when someone walks away from death row a free man. (Radley Balko reported, "According to the Death Penalty Information Center, Brown is the 12th death row exoneration since 2013, and the fourth death row inmate exonerated so far this year.") What greater contrast could there be than to take someone awaiting death in a small box and send him home, declaring him free and clear?

The DA's Office went out of its way to avoid declaring Brown "innocent" - which would have entitled him to state compensation - much as Burleson County prosecutors did to Anthony Graves, at first. But it is certainly true Alfred Brown is "not guilty." The DA's decision not to formally exonerate him likely sets the stage for civil litigation, which may not end up being the wisest choice the widow Anderson ever made. She has missed an opportunity to put the issue behind her and wear a white hat. Whatever chits she earns with the police union from sticking to her guns won't outweigh the role of obstructionist/villain she risks playing in Lisa Falkenberg's Pulitzer-Prize winning saga at the Houston Chronicle about the case.

Amazing the lengths folks will go to to keep from saying "We made a mistake."

Regardless, Mr. Brown will be considered "exonerated" by national standards, reported the Chronicle:

Monday's decision does mean Brown will be listed as "exonerated" by Maurice Possley, a senior researcher at the National Registry of Exonerations.

"He fits our criteria," Possley said.

He said the requirements for exoneration are that a conviction goes away, either because the charges are dismissed or an acquittal at a retrial, and there's evidence that was not available at the first trial that is favorable to the defendant.

So barring new evidence, DA Anderson and the police union likely are on the wrong side of history on this one. Brown will be "exonerated" in both public perception and historical accounts whether or not the court or the state ever formally declares him innocent.

Dotting i's on grand jury reform

The passage of Texas grand jury reform over the weekend was shockingly uneventful, with predicted fireworks never materializing and gutting amendments never proposed. It turned out, the votes were there in the House to pass the bill without bracketing it to large counties or giving judges a choice to use the old system. So, hurrah! But the saga's not quite over.

With the Texas House having passed SB 135 eliminating the pick a pal grand jury system and the Senate amending HB 2150 to do the same thing, a clause encouraging diversity in grand juries is now the sticking point in the feud between Sen. John Whitmire and Rep. Harold Dutton. The senator wants to reinstate the clause and the representative deleted at the behest of the governor on the House floor. The Houston Chronicle's Mike Ware summed things up thusly:

So, with just a week left in the legislative session, the House has passed its version of a Senate bill that does not include the diversity rule. And the Senate has passed a House bill that now includes the rule.

How does that play out?

The House and the Senate will have to confer on both bills, and decide which to support in a final version. Look for some political pushing and shoving on both sides to get that final wording in coming days since Whitmire and Dutton are not seeing eye to eye on much in the waning days of the legislative session.

Whitmire said Monday he has no intention of bending, and wants the diversity provision in the bill. Dutton seems just adamant.

There's actually a simple way out of this without facing another nasty floor fight in the House over this bill. As it turns out, Chairman Dutton is not author of HB 2150, to which grand jury reform was amended after he scuttled his own legislation; Carol Alvarado is. If Sen. Whitmire concurs on SB 135 and she takes HB 2150 to conference, it would be possible to strip out all the extant provisions except Alvarado's original bill and Whitmire's diversity clause. That way, they end up with a complete bill - done as two bills - and in a procedural posture that can actually pass in the short time remaining.

That's my hope. IMO this debate should be over now, and discussion focused only on dotting i's and crossing t's.

UPDATE (5.27): Word now has it that the governor has expressed concern with the diversity clause Whitmire wants, so both bills will go back for concurrence - one with, one without the diversity piece - and presumably the choice will be left up to Gov. Abbott which one becomes law.

NUTHER UPDATE: A deal has been struck between Whitmire and the Governor and HB 2150 will now go to conference committee. It will likely be the version of the bill that's finally passed and signed into law.

Dutton-Whitmire bill logjam breaking up: Truancy decrim, juvenile regionalization and grand-jury reform all still have time to pass

The Texas House may get one final chance to vote on Sen. John Whitmire's legislation - now amended onto a passing house bill - to eliminate the state's pick-a-pal grand jury system.

On Tuesday in the Senate Criminal Justice Committee, Chairman John Whitmire substituted his "consensus" senate version of grand jury reform to HB 2150 by Rep. Carol Alvarado, stripping out the version Rep. Harold Dutton amended on the House floor, including the brackets added by Rep. Ed Thompson to limit the bill to counties with more than 500,000 population. He also left on some additional minor changes that were in Alvarado's pre-amended bill.

The Senate earlier passed Whitmire's grand jury reform bill 31-0. HB 2150, added  to the committee agenda at the last minute via a suspension of the rules, also received a unanimous vote in committee and, having been previously agreed to in the upper chamber, should move out of the senate fairly quickly.

Sen. Whitmire also amended his legislation decriminalizing truancy to a bill by Rep. James White. The chairman said White was strongly supportive of decriminalizing truancy, legislation which never received a vote in the House Juvenile Justice and Family Matters Committee, which Rep. Dutton chairs.

Both bills face concurrence votes when they get back to the House, which will essentially be that chamber's up or down vote on Whitmire's legislation.

In related news, on Tuesday, the Houston Chronicle's Mike Ward reported that Whitmire's juvenile regionalization legislation, which would result in at least one TJJD unit closing, was near death's door. "By Tuesday afternoon, supporters of the Senate bill were pushing for a hearing in the House to get the bill moving again — and were looking for a House bill in the Senate that could be amended to make the changes contemplated in Whitmire's bill." Then on Wednesday, Chairman Dutton finally obliged reform supporters and voted SB 1630 unanimously out of his committee. It still has time to pass if the committee report doesn't lollygag on its way to Calendars.

Grits is relieved to see the stalemate subsiding, better late than never. All these issues are too big and important to let inter-chamber rivalries prevent their passage.

UPDATE (5/23): Whitmire's SB 135 eliminating the pick-a-pal system was posted to Saturday's floor calendar and passed on second reading on a voice vote. Third reading is Sunday afternoon. See coverage from the Houston Chronicle.

Hissy fits have consequences: Juvie bills derailed by grand-jury reform fight

In the midst of a feud with Sen. John Whitmire over failed legislation to reform the state's pick-a-pal grand jury system, Rep. Harold Dutton exercised his authority as Chair of the Juvenile Justice and Family Matters Committee to cancel a meeting last night. The apparent motive: Retaliation. The agenda included Whitmire's reorganization of the Texas Juvenile Justice Department, shifting more youth to county control. Bills by Senators Burton, Uresti, Eltife and Schwertner were also affected.

In theory, I suppose, nobody could make Dutton convene the committee again this session, though such behavior might not get him invited back as chair next time. Houston Chronicle columnist Lisa Falkenberg penned a column laying blame for the grand-jury reform mess at Dutton's feet, and though I like and respect Dutton, that's a sentiment universally shared by insiders observing the debacle close up. Dutton carries too many bills and doesn't always work them aggressively. At times, there are inexplicable bungles. And what happened on the floor on grand-jury reform was an unnecessary disaster. (If needle exchange could get 92 votes on second reading, for heaven's sake, Dutton should have been able to find 76!)

I've seen multiple lists of legislators who would likely flip on Thompson's amendment if the vote were held again. They voted for it because members didn't understand the bill and Dutton hadn't worked the room. Part of the blame lies with advocates for the change, to be sure: If members didn't understand the bill, that's because nobody explained it to them. But the chairman can't escape a sizable share of culpability.

Between killing raise-the-age legislation by chubbing the gay marriage re-ban and now potentially scuttling juvenile de-incarceration in addition to grand-jury reform, Democrats run the risk of derailing the bulk of criminal-justice reform legislation still moving in these final stages of the session.

In the legislative process, at least, hissy fits have consequences.

UPDATE: In the waning hours of Thursday evening, Dutton amended the senate version of the grand jury bill onto other legislation. With Ed Thompson's amendment added to make it apply only in counties with more than 500,000 population, it passed without debate. See coverage from the Houston Chronicle.

Reform of 'pick a pal' grand jury system stalled, but options still available

The issue may have earned Lisa Falkenberg a Pulitzer Prize, but that wasn't enough to convince the Texas House the state's "pick a pal" grand jury system should be eliminated.

Much-ballyhooed legislation to eliminate the "key man" system of picking grand juries died in a double-barreled blast last night on the floor of the Texas House. Your correspondent happened to be in the gallery for the event, which took overconfident proponents by surprise.

As soon as the bill was laid out, it became apparent Rep. Harold Dutton didn't have his votes. First, he preemptively gutted his own bill with an amendment to give judges an option to use either system. Then he pulled the bill down entirely - or rather, postponed it to a time-certain in 2016 - after other members cabined the change to Harris County on a 73-69 vote, expanded to counties over 500,000 by an amendment to that amendment.

Chairman Dutton is also House sponsor of the related senate bill, which is already sitting in Calendars, and there are some other grand jury captions floating around. So if some of those 73 votes can be flipped - perhaps not an impossible task - he can try again.

See coverage from the Houston Chronicle and the Dallas News.

MORE: At the Houston Chronicle, Lisa Falkenberg laid the debacle at Harold Dutton's feet:

I blame ego. And I blame the Democratic sponsor of the bill's House version, Dutton, for its catastrophic flop.

More than a month ago, a similar bill to end the Texas pick-a-pal system flew out of a Senate committee and passed the full Texas Senate, which this session is considered to be the more conservative body. It passed 31-0, garnering even the support of the Lt. Gov. Dan Patrick, a tea party favorite from Houston whose son is a Republican Harris County judge.

How? Well, the sponsor in that case, Sen. John Whitmire, D-Houston, who heads the Senate Criminal Justice Committee, reached across the aisle for bipartisan support. With one concession that lets judges add names to the random pool of grand jurors, Whitmire gained the support of Republican judges and even state Sen. Joan Huffman, R-Houston, a former prosecutor who sometimes stands in the way of criminal justice reforms.

Even Republican Harris County District Attorney Devon Anderson came out supporting Whitmire's bill, followed by the Houston Police Officers' Union.

Instead of taking the baton from Whitmire as soon as the Senate bill hit the House, Dutton started fresh with his own bill. He wouldn't explain to me why, except to say "I like my version better." I have to wonder if he also liked the look of his own name and bill number.

Dutton's version included a giant concession to a few judges he said voiced "concerns." Although the bill would have made random grand jury selection the default in Texas, it would have allowed judges to use pick-a-pal if they could express a good reason. That's very close to the current system we're trying to get rid of.

In a phone interview Tuesday, Dutton seemed unaware of the smaller concession Whitmire had made that addressed the same concerns from judges. He also didn't take kindly to Whitmire's suggestion of finding other surrogate sponsors in the House.

"He's free to do whatever the hell he likes," Dutton said. "This is the House over here. He runs the Senate, maybe, but he doesn't run the House."

Whitmire, meanwhile, has vowed to press on and to enlist other veteran Houston House members, such as Reps. Senfronia Thompson and Sylvester Turner, to help.

And Dutton does need help. It was obvious that he hadn't done his homework on the legislation. He hadn't worked the floor. He hadn't educated members on his bill. Even some members who tried to aid him in the debate struggled with basic facts of the bill and missed crucial talking points.

"He had not worked the delegation. He did not recruit people to help. It was horrible," Whitmire says.

That may or may not be true, but assigning blame won't pass the bill. In three weeks, the 84th session is over, and it will end without grand jury reform if supporters of the idea can't work together to accomplish it.

Bill eliminating pick-a-pal grand jury system clears committee

State Sen. John Whitmire's bill eliminating the "key man" system for picking grand jurors cleared the Texas Senate Criminal Justice Committee yesterday. Reported the Houston Chronicle (March 10):

A state Senate committee voted unanimously Tuesday to junk Texas' controversial and long-standing "pick-a-pal system" in which judges use friends to recommend other friends to serve on grand juries.

Instead, the Senate Criminal Justice Commission approved Senate Bill 135 that will allow judges to select grand jurors from the regular jury pool, with an emphasis on making grand juries more reflective of the diverse communities they serve.

The state law governing Texas' grand jury selection rules has been in effect for decades, allowing judges to select friends as "commissioners" who then recommend names of prospective grand jurors to the judge to be selected. ...

Sen. John Whitmire, a Houston Democrat and the author of the measure, said the change is needed, adding Texas is the only state that still uses the "key man" system to select grand jurors.

"This bill would require diversity," Whitmire told the committee he chairs. "Every state in the union has gone to random selection. It sends a message that we want the system to be transparent and fair."

Police, prosecutors, civil rights groups and several judges heartily endorsed the change, including former Houston state district judges Joan Huffman, now a state senator and the vice chair of the committee, and Belinda Hill, now a Harris County first assistant district attorney.

Grand jury reform: Beyond eliminating the pick-a-pal system

The Houston Chronicle's Lisa Falkenberg - whose reporting on conflicts of interest in Houston grand juries involving shootings by police helped launch the current effort to end the pick-a-pal method of selecting grand jurors - has published an op ed (Feb. 10) articulating what, in her view, grand jury reform must look like beyond random selection to solve problems witnessed from H-Town to Ferguson, MO. The column concluded:

A random system isn't magic fairy dust that will fix everything. Choosing our grand juries the way we choose trial juries will likely produce fairer panels with fewer biases. But, naturally, they will also be less informed about the system, and about their rights and duties.

More education is needed. Harris County provides an informative orientation, from what I've gleaned from agendas and interviews. But it's lacking in the perspectives from the defense, from groups like the Innocence Project, or from exonerees themselves.

"I get about 10 minutes. There's only so much I can cover," said Alex Bunin, Harris County's chief public defender.

Grand juries could also benefit from a staff attorney, or some kind of independent legal adviser who doesn't have a dog in the hunt.

The impenetrable shroud of secrecy is another issue lawmakers should keep in mind.

While I think grand jurors' oath of secrecy is still appropriate in most cases, judges need more explicit discretion to allow for exceptions, such as releasing witness names or transcript excerpts when appropriate. District attorneys need the same guidance.

Lastly, critics argue that a random system still won't result in diverse grand juries because many folks can't get off work to serve. I agree that grand juries will always skew older. Retirees simply have more time. But the system need not be so onerous on younger working folks. The law should make it clear that jurisdictions can get creative with the number of days and hours that grand juries can meet.

Why not a Saturday grand jury, or one that meets in the evening?

Law enforcement officials who advocate for reform deserve applause. And Texans deserve that their lawmakers finally get it right.

Harris DA backs eliminating 'key man' system for picking grand juries

It's impressive that Harris County DA Devon Anderson has announced her support for state Sen. John Whitmire's grand jury reform proposal to eliminate the key man system and select grand jurors from regular jury pools. Reported the Houston Chronicle (Feb. 8):

In a two-page Letter to the Editor of the Houston Chronicle on Sunday, she offered her full-throated support for changing the law on how grand juries are selected.

"The public is losing confidence in the grand jury system," Anderson wrote. "I support the efforts in the Texas Legislature to abolish the jury commissioner system."

Anderson, who called the current system "a historical anachronism," joins a chorus of calls for reform in the midst of fierce national debate over the diversity of the people picked to be grand jurors, an issue that has been spotlighted by several high-profile cases across the country.

Good for her! With the Republican DA of the state's largest county backing the idea, perhaps Whitmire's bill will find real legs. After all, he only has to get 19 votes in the senate now as opposed to 21 in years past. At a minimum, Anderson's position ensures opposition to the bill will be fragmented and vulnerable. I thought before this news hit that Whitmire's bill might find an untapped well of bipartisan support at the Lege. With a little luck, Anderson's vocal endorsement might put it over the top.

MORE: See more background on the topic in a link-filled post from Radley Balko published last August.

The case for grand jury abolition

Jim Harrington from the Texas Civil Rights Project authored a column in the SA Express-News arguing for abolition of grand juries in Texas, a suggestion your correspondent also recently proposed. The article opened thusly:

The United States has had to discard anachronistic institutions throughout its history, and it is now time to bury another — the grand jury. Most other countries based on English common law long ago jettisoned this unworkable relic of the past. And only about half of the states in the nation still use grand juries.

The Ferguson and Staten Island grand juries that recently cleared police in the killings of Michael Brown and Eric Garner, respectively, underline starkly how perverted the grand jury system has become. There is no way to reform the system; all cries to reform it are “pie in the sky” and inherently doomed. Grand jury reform is impossible. Abolishment is the only viable alternative if we want a more just system.

The grand jury originally had two functions. One was to shield people against the arbitrary government power. The other was where individual citizens brought criminal cases they wished to prosecute against someone else, and the grand jury would give the go ahead or not. This was before the institutional development of district attorneys and prosecutors in our criminal justice system.

In modern times, the grand jury has become an irrepressible tool of the district attorney. With the exception of a few blips here and there, prosecutors manipulate and bend the grand jury to their will. After all, the prosecutor tells the grand jurors what needs to be done “in the interest of justice” and presents and tailors the evidence and witnesses accordingly — all in a secret, non-transparent proceeding, without the customary due process protections for the accused. As the saying goes, any prosecutor, who so desires, can “indict a ham sandwich.” An overstatement, perhaps, but close to the truth.

The American grand jury has become the new “Star Chamber,” which was the English monarchy’s secret court system that wrought injustice and abuse of power until abolished by Parliament in 1641.

The American grand jury is its reincarnation, and should meet similar demise.

Especially in instances of police violence, the grand jury can never function with justice. District attorneys are beholden to the police to work up cases they prosecute and upon which they conduct their law and order campaigns for re-election. It is an understandable symbiotic relationship, but one which always will misfire in allegations of police violence or abuse.

Moreover, police unions will put their votes and money behind district attorney candidates who support them, not prosecute them.

Grand juries have become a hand-washing machination for prosecutors. They hide behind a grand jury decision in favor of the police, even though they have manipulated its inevitable outcome. 

See also similar arguments made in Slate (Dec. 9) regarding why grand juries should be abolished. Others argue for keeping them but requiring greater transparency. (If we're going to keep them, personally I think recordings or transcripts should become public records once the grand jury's term ends.)

In a related story, the Houston Chronicle reported Dec. 19 that "Hispanic representation on Harris County grand juries far below population." The paper found that not only were Hispanics and Asians underrepresented but people from law enforcement fields were overrepresented. "The Chronicle found that 58 percent of grand juries had at least one person with law enforcement or legal experience. Almost a third of grand juries had two people meeting that criteria."

Should Texas abolish rather than reform grand juries?

State Sen. John Whitmire has filed legislation to eliminate the "key man" system of selecting grand juries in Texas. But in the wake of national debates of the failures of grand juries to hold police accountable, it's worth asking whether grand juries oughtn't be abolished entirely. Public Radio International pointed out that "England abolished grand juries decades ago because they didn't work." Here's a notable excerpt:

The concept [of grand juries] comes from our colonial parent, England. "It goes back centuries here," explains London-based legal writer Joshua Rozenberg. "In medieval times, it was drawn from the local neighborhood. And these were men who were expected to look around and report criminal behavior within the community. They're people who actually knew the offenders, as we'd call them today, and could perhaps bring them to justice."

By the 16th century, that morphed into the system we'd now recognize as a grand jury: A group of people listening to a prosecutor's evidence and deciding whether to indict.

But the United Kingdom actually abolished its grand jury system in 1933. "We now send cases that are serious enough straight to jury trial," Rozenberg says. That way, both sides are able to present evidence and make their arguments, which is definitely not the case with a grand jury.

In fact, the UK exported grand juries to most of their former colonies — Canada, Australia, New Zealand — and virtually all of them have stopped using them.

"They are said to be 'putty in the hands of the prosecutor.' In other words, the prosecutor really tells them what he or she wants and they will go along with it," he says. "Or that's what we are told, because we don't really know. We can't watch grand juries at work."

That's why former New York judge Sol Wachtler once famously said that a district attorney could get a grand jury to "indict a ham sandwich." But, Rozenberg points out, "it must be even easier to get the sandwich acquitted if that is what the district attorney may actually want."

Whitmire's bill was reacting to alleged misconduct by grand juries in Houston but the Ferguson and Staten Island episodes (much less a similar episode in Jasper, TX) have cast more light on these shadowy entities than at any point in my lifetime, though their cozy relationship with law enforcement has been well-documented for years. There's an opportunity now for a more substantive debate about the role of grand juries. Perhaps instead of "reforming" them, Texas should abolish these anachronistic vestiges of colonialism and let elected prosecutors make the decision whether to pursue a case, whether against a cop or a private citizen, since as a practical matter that's what's happening, anyway.

Odds and ends: How best to reduce pot penalties, surging toward inanity, pregnant in jail, and other stories

Here are several items which haven't made it into independent posts this week but merit Grits readers' attention.

Wu: Reduce pot possession <.35 ounces to ticket-only misdemeanor
Houston state Rep. Gene Wu has filed legislation, HB 325, to reduce possession of up to .35 ounces of marijuana to a Class C misdemeanor. While Grits generally supports penalty reduction for pot possession, .35 ounces seems like an odd cutoff point. Presently, possession of up to two ounces is a Class B misdemeanor based on the assumption that such lesser amounts represent personal use levels. I see little reason to treat someone possessing a half ounce for personal use differently than someone possessing a quarter ounce. To my mind, the best solution would be to ratchet down current penalty categories by one level, not to create a new category to carve out small amounts.

That said, I'm incredibly appreciative that Wu's raising the issue at all and would not let the perfect become the enemy of the good by opposing the idea. But recent polling indicates the public would support more aggressive reforms.

Surging toward inanity
Following up on themes from recent Grits posts, check out a pair of recent stories on the politics of Texas' border "surge":

• Lubbock Avalanche Journal: Rangel: Border security becoming even bigger issue
• El Paso Times (editorial): Texas leaders lack data on 'surge' impact

Drug war corruption? Say it ain't so
A Starr County sheriff's deputy was arrested smuggling pot through a border checkpoint.

Pregnant in jail
Check out an SA Current story titled "The fight for better care for pregnant women in Texas jails" which informs us that a coalition of groups led by the Texas Jail Project is "calling on the Texas Commission on Jail Standards to implement more robust, detailed policies and procedures to ensure pregnant women get proper obstetric, prenatal and postpartum care while they're incarcerated in Texas county jails. The coalition argues that, with more than 200 county jails statewide, the commission's minimum standards aren't strong enough, nor are county jails held accountable if appropriate care isn't available, creating a dangerous situation for expectant inmates."

Why grand juries don't indict cops
Riffing off the Ferguson kerfuffle, FiveThirtyEight has a column speculating on reasons grand juries almost never indict police officers. Scott Greenfield points out that, in the Ferguson case, the prosecutor did not actually ask the grand jury to indict. Their role was essentially to function as a stage prop in political theater. MORE: From Al Jazeera America, see "Why police are rarely indicted for misconduct" and from The Atlantic, check out a piece from Conor Friedersdorf on why the case more police reform is bigger than Ferguson and the Michael Brown killing.

Explaining the Great American Crime Decline
An article from the new Marshall Project suggests various hypotheses for the jaw-dropping decline in crime witnessed across the country since the early 1990s. The essay that reminded me of Grits own, similar compilation of hypotheses a couple of years ago, though he didn't mention my personal favorite "video game" theory, which holds that young men spending hours playing Grand Theft Auto on an XBox have less time to spend on the streets stealing my car. The National Academy of Sciences recently published an extensive report on this topic. See an overview essay on their findings and find the full report here.

Obama's clemency record sucks
Grits may complain that Texas governors under-use the pardon power, but it bears repeating that President Barack Obama's clemency record sucks harder than any American president in living memory.

Shameless self promotion
Grits was nominated for the American Bar Association's Blawg 100 list of top legal blogs which are chosen by reader votes. Go here to vote for Grits in the criminal justice section and to check out the list of other nominated blogs.

Whitmire would eliminate 'key man' system for grand juries

State Sen. John Whitmire has filed a bill, SB 135, which would fundamentally alter the grand jury system in Harris and other Texas counties by abolishing the "key man" system and requiring that grand jurors be selected from the regular jury pool.

This would eliminate the perception of insider baseball among the courthouse set when it comes to securing indictments. I'll be interested to hear the arguments that come out against it. The key-man system has been abandoned in most of the country and is at this point an anachronism.

See earlier coverage of the issue from the Texas Tribune, from Texas Monthly, and an excellent series on the topic by Lisa Falkenberg at the Houston Chronicle (behind paywall) from over the summer:

• A disturbing glimpse into the shrouded world of the Texas grand jury system
• Mother of three pressured into changing story, but jailed anyway
• Anthony Graves helps open a painful door to the past, and perhaps the truth
• Cop was foreman of grand jury in cop killing

Tim Cole statue unveiled in Lubbock, and other stories

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

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

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

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

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

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

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

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